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Heritage New Zealand Pouhere Taonga Bill (Consistent) (Sections 19(1), 25(c)) [2011] NZBORARp 27 (9 August 2011)

Last Updated: 29 April 2019

Heritage New Zealand Pouhere Taonga Bill

9 AUGUST 2011 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

HERITAGE NEW ZEALAND POUHERE TAONGA BILL

1. We have considered whether the Heritage New Zealand Pouhere Taonga Bill (PCO 14657/4.0) (the Bill) is consistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on Thursday, 11 August 2011.
2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching that conclusion, we have considered potential issues of inconsistency with s 19(1) (right to freedom from discrimination) and s 25(c) (right to be presumed innocent until proved guilty). Our analysis is set out below.
   

Purpose

3. The purpose of the Bill is to promote the identification, protection, preservation and conservation of the historical and cultural heritage of New Zealand. It replaces the Historic Places Act 1993 (the Act), which established the New Zealand Historic Places Trust (Pouhere Taonga) (the Trust) in its current form. The Bill continues the Trust, but changes its name to Heritage New Zealand Pouhere Taonga to remove any confusion as to the organisation’s legal status as a Crown entity (and not a trust).
4. The Bill also reforms the Trust’s governance and structure, puts in place new archaeological and emergency provisions, and makes other changes to improve the Act’s workability. As

currently established under the Act, the Trust has a board, the Māori Heritage Council and branch committees comprising fee-paying members. The Bill requires Heritage New Zealand Pouhere Taonga to refer all applicants for archaeological authorities that affect sites of

interest to Māori to the Māori Heritage Council.

5. New archaeological provisions in the Bill will achieve efficiency gains, reduce some costs, and improve alignment with the Resource Management Act 1991 (the RMA).
6. The Bill establishes a separate emergency authority process in the event of natural disasters that cause, or are likely to cause, loss of life, injury, or serious damage to property. This process will give Heritage New Zealand Pouhere Taonga the ability to process archaeological authorities more quickly following a state of emergency.
   

Composition of the Māori Heritage Council

7. Clause 23 in the Bill continues the Māori Heritage Council (the Council) established by s 84 of

the Act. Subclause (2)(b)(i) provides that four of the eight members of the Council

appointed by the Minister must be Māori. We have considered whether this is a breach of s 19(1) of the Bill of Rights Act.

Right to freedom from discrimination

8. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to freedom from discrimination on the grounds listed in the Human Rights Act 1993. The grounds of discrimination in the Human Rights Act include race and ethnic origins.
9. Drawing on the New Zealand case law on discrimination, we consider that the key questions in assessing whether there is a limit on the right to freedom from discrimination are: [1]
   
   1. does the legislation draw a distinction based on one of the prohibited grounds of discrimination; and if so
      
   2. does the distinction involve disadvantage to one or more class of individuals?
      
10. In determining if a distinction arises, consideration is given to whether the legislation proposes that two comparable groups of people be treated differently on one or more of the prohibited grounds of discrimination. [2] The distinction analysis takes a purposive and un-technical approach to avoid artificially ruling out discrimination. [3] Once a distinction on prohibited grounds is identified, the question of whether disadvantage arises is a factual determination. [4]
    

Application of s 19(1) to the Bill

11. The Bill provides that four of the eight members appointed to the Māori Heritage Council must be Māori. This requirement specifically sets race as a criterion for appointment (in respect of four of the Council members), thus potentially ruling out other suitable members of the Council on the basis of race. We consider this distinction disadvantages non-Māori persons, as it limits their ability to be considered for appointment to the Council, and may prevent them from serving in a role to which they may be suited, and which may provide personal and professional satisfaction.
12. We consider that appointments should generally be made on the basis of a person’s skill, experience and knowledge and that a race-based criterion is a prima facie breach of the right to freedom from discrimination.
13. Where a provision is found to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act. For example, in the Supreme Court of New Zealand’s decision in Hansen v R (Hansen) Tipping J states: [5]
    

Whether a limit on a right or freedom is justified under s 5 is essentially an inquiry into whether a justified end is achieved by proportionate means. The end must be justified and the means adopted to achieve that end must be proportionate to it. Several sub-issues inform that ultimate head issue. They include whether the practical benefits to society of the limit under consideration outweigh the harm done to the individual right or freedom.

14. Following the guidance of Hansen, the s 5 inquiry may be summarised as: [6]
    
    1. does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?
       
    2. if so, then:
       
    • (i) is the limit rationally connected with the objective?

• (ii) does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
  
  • (iii) is the limit in due proportion to the importance of the objective?
    

15. Clause 7(d) of the Bill provides that in order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi, cl 23 provides for the continuation of the Council. Four of the members of the Council must be Māori and must collectively have the skills, knowledge, or cultural background appropriate to the functions of the Council.
16. The Bill, and the Act it replaces, is one of the key pieces of legislation through which the Crown provides protection for New Zealand heritage. The Bill’s purpose, set out in cl 3, is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand. Clause 4(c) further provides that persons performing functions and exercising powers under the Bill must recognise the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga. This obligation is also consistent with the principles of the Treaty of Waitangi, and findings of the Courts and Waitangi Tribunal concerning the Crown’s duty to protect Māori taonga.
17. Given the historical fact of long Māori settlement in New Zealand, and the traditional

relationship of Māori with the land, Māori heritage is a significant aspect of New Zealand’s heritage. The Bill of Rights Act advice on the Historic Places Amendment Bill of 2004 noted that there have been calls for improved management and preservation of Māori heritage in New Zealand. Successive reviews of heritage management in New Zealand have found that ‘historic heritage (and particularly Māori heritage) is continuing to be destroyed at an

alarming rate’. [7]

18. For these reasons, we consider that the proposal’s objective still serves a sufficiently

important purpose to justify some limitation on the right to freedom from discrimination.

19. Heritage New Zealand Pouhere Taonga has a range of functions and powers, as set out in cls 11 and 12 of the Bill. These include responsibilities to identify, record, investigate, assess,

register, protect, and conserve historic places, historic areas, wāhi tapu, and wāhi tapu

areas, and to provide information, advice, assistance and advocacy in relation to such areas.

20. The Council also has a range of functions, as set out in cl 24 of the Bill. These include responsibilities to:
    

• ensure that in the protection of wāhi tapu, wāhi tapu areas, and historic places and historic areas of interest to Māori, Heritage New Zealand Pouhere Taonga meets the needs of Māori in a culturally sensitive manner
• develop Māori programmes for the identification and conservation of wāhi tapu, wāhi tapu areas, and historic places and historic areas of interest to Māori, and to inform the Board of Heritage New Zealand Pouhere Taonga (the Board) of all activities, needs, and developments relating to Māori interests in such areas and places
• assist Heritage New Zealand Pouhere Taonga to develop and reflect a bicultural view in the exercise of its powers and functions
• develop its own iwi and other consultative and reporting processes and to recommend such processes for adoption by the Board and staff of Heritage New Zealand Pouhere Taonga when dealing with matters of interest to Māori
• make recommendations to Heritage New Zealand Pouhere Taonga on applications referred by Heritage New Zealand Pouhere Taonga under section 47(1)(b) that relate to sites of

interest to Māori

• consider and determine suitable applications for the registration of wāhi tapu and wāhi tapu

areas

• propose the registration of historic places and historic areas of interest to Māori, and
• advocate the interests of Heritage New Zealand Pouhere Taonga and the Council so far as

they relate to matters of Māori heritage at any public or Māori forum.

• Among other matters, the Council acts as an advisory body to Heritage New Zealand Pouhere Taonga, to assist it to fulfil its responsibilities in terms of Māori heritage. The functions of the Council are limited to those aspects of the Bill that are of particular significance and relevance to Māori. The Bill recognises, in cl 10, the importance and significance of these interests through the appointment to the Board of persons who are qualified for appointment having regard to their

knowledge of te ao Māori and tikanga Māori.

• The fact that particular members of the Board only need to have knowledge of te ao Māori and tikanga Māori, as opposed to being Māori, reflects the different functions of the Board and the

Council. Members of the Board require a range of skills, knowledge and experience relating to all of the functions and powers of Heritage New Zealand Pouhere Taonga, including those concerning Māori heritage. Appointments to the Board may, therefore, be unnecessarily restricted by requiring a number of Board members to be Māori, though it is essential that there are Board members with skills and knowledge relating to Māori heritage.

• The requirement for four members of the Council to be Māori ensures that the interests of Māori,

as identified by the Council, are represented. Furthermore, the Council’s ability to fulfil its

responsibilities in relation to Māori culture and heritage is likely to be enhanced by the involvement of Māori, because only persons of Māori ethnicity possess the following attributes:

• whakapapa and whakawhanaungatanga connections (based on descent or ancestry).

Whakapapa and whakawhanaungatanga are the fundamental relationships between Māori and cultural heritage, and the basis upon which Māori can claim standing on marae and communicate effectively with tangata whenua at the local level, and

• kaitiakitanga (guardianship status) of Māori heritage. In Māori culture, the kaitiaki relationship with heritage is reserved for appropriate persons of Māori ethnicity and tribal affiliation, and may involve the safeguarding of knowledge of the existence and significance of sites.
  
• Finally, sites of historical and cultural significance to Māori are considered by Māori to be central to sustaining a living Māori culture, the basic premise of the Treaty of Waitangi, and the Treaty principle of active protection. This proposal ensures that the Heritage New Zealand Pouhere Taonga has the requisite capabilities to provide protection of taonga consistent with its functions and powers.
• The Ministry for Culture and Heritage has advised that appointments made to the Council solely on the basis of a person's qualification and experience without reference to Māori ethnicity would affect the credibility and mana of the Heritage New Zealand Pouhere Taonga in relation to its statutory responsibilities to protect Māori culture and heritage. The ability of the Heritage New Zealand Pouhere Taonga and the Board to understand the concerns of, and speak with, Māori

constituents about the protection of Māori culture and heritage is particularly important in this

regard.

• It is relevant to note that Māori appointees to the Council also need to possess the skills, knowledge, and cultural background appropriate to the functions of the Council. In other words, Māori are not being appointed to the Council solely because of their race.
  
• For the reasons given above, we consider the appointment of four Māori members to the Council to be rationally connected to the Bill’s objective, and minimally impairing of the right to freedom from discrimination, given the requirement of the four persons appointed to also possess relevant skills, knowledge and background, and that this requirement is restricted to appointments to the Council only, rather than the Board and Council.
  
• We also consider that the limit on freedom from discrimination is in due proportion to the importance of the objective given the sufficient tailoring of the proposal, and the significant importance of preserving New Zealand’s heritage.
  
• It follows that we consider that the proposed composition of the Māori Heritage Council does not

unreasonably limit the right affirmed in s 19(1) of the Bill of Rights Act.

Offence provisions

• Part 5 of the Bill sets out offences and penalties. Clause 92 provides that the offences contained in cls 84 (offence of harming archaeological site), 85 (offence of breaching conditions of authority) and 88 (offence of harming historic place or wāhi tapu that has interim registration) are strict liability offences. We have considered whether these provisions breach s 25(c) of the Bill of Rights Act.
  

Right to be presumed innocent until proved guilty

• Section 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proved guilty according to law. This right means that a person must not be convicted where reasonable doubt as to his or her guilt exists. The prosecution in criminal proceedings must therefore prove, beyond reasonable doubt, that the defendant is guilty.
  
• The above strict liability offences in the Bill give rise to a prima facie limit on s 25(c) because the prosecution is not required to prove that the defendant intended to commit the offence. The prosecution must only prove that the defendant committed the act in question. The defendant is then required to prove, on the balance of probabilities, one of the defences specified in cl 92, to escape liability.
  

Application of s 25(c) to the Bill

• Where a provision limits a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justified in terms of s 5 of that Act. In addition to the Hansen approach to s 5, as described in the section above, we consider the following factors are relevant in assessing whether the strict liability offences can be justified under s 5:

1. the nature and context of the conduct to be regulated
   
   2. the penalty level, and
      
   100. the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person.
        

The nature and context of the conduct to be regulated

• Clause 84 provides for an offence where someone destroys, damages or otherwise modifies or alters an archaeological site without the authority of Heritage New Zealand. The person has to know or have reasonable cause to suspect the site is an archaeological site. Put simply, an archaeological site is a place, including any building or structure, which is dated before 1900 and may provide evidence relating to the history of New Zealand. An archaeological site includes wāhi tapu and wāhi tapu areas.
  
• Clause 85 provides for an offence where someone fails to comply with any of the conditions imposed by an archaeological authority.
  
• Clause 88 provides for an offence where someone harms an historic place or wāhi tapu that has

interim registration.

• The objective behind these offence provisions is to protect New Zealand’s historical and cultural heritage. An effective enforcement regime is desired to achieve this goal. Strict liability offences increase the likelihood of successful enforcement action to promote the objectives of the Bill.
  

The penalty level

• The Act provides (at ss 97, 98 and 99) for fines ranging from a maximum of $40,000 for damage to or modification of a protected site such as an historic place or wāhi tapu, to a maximum of $100,000 for its intentional destruction. Section 100 of the Act provides for a fine not exceeding $40,000 for a person who breaches the conditions of an authority. These prescribed maximum fines apply equally to natural persons and non-natural persons.
  
• The Trust considers that the current penalty levels, as set in 1993, are relatively low and out of line with international counterparts, particularly Australia, where the fine levels are significantly higher. The Trust considers that the fine levels need to provide a suitable disincentive to offending, especially in the case of companies. The Ministry for Culture and Heritage considers that the fine levels in the Bill give a signal that New Zealand values its heritage, while still remaining appropriate relative to the seriousness of the offences and the penalties for comparable offences.
  
• Clauses 84 and 88 of the Bill provide for fines not exceeding $60,000 for a natural person and

$120,000 for a non-natural person, for harm to an archaeological site or historic place or wāhi tapu that amounts to damage, modification or alteration. Where the harm amounts to destruction the penalty level increases to $150,000 for a natural person, and $300,000 for a non-natural person.

• Clause 85 provides for fines not exceeding $60,000 for a natural person, and $120,000 for a non- natural person, for breaching the conditions of an authority.

• Given that the Bill operates in the context of heritage and environmental legislation, it is thought appropriate that the Bill is consistent with the approach taken in the RMA. Section 341 of the RMA provides that certain offences under the RMA are strict liability offences. Such offences are comparable in terms of seriousness with the offences in cls 84, 85 and 88 of the Bill.
  
• Section 339 of the RMA, which was revised in 2009, sets out the penalties for offences under the RMA, including strict liability offences. Section 339 provides that the strict liability offences are punishable by imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000, for natural persons; and in the case of a person other than a natural person, to a fine not exceeding

$600,000. It also provides for a fine not exceeding $10,000 for every day or part of a day during which the offence continues. These penalties are higher than those under the Bill.

• We consider that the penalty levels in the Bill are broadly proportionate to the potential harm caused by failing to meet the requirements in the Bill, and are consistent with the penalties for comparable offences.
  

The ability of the defendant to exonerate themselves and the risk of conviction of an innocent person

• A statutory defence is provided in cl 92(2), allowing a defendant to exonerate themselves where they can prove:
  
  • that the action or event was necessary to save or protect life, or prevent serious injury or

damage to property or any historic place or wāhi tapu

• their conduct was reasonable in the circumstances, and
• the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.
  
• It is a further defence in cl 92(2) if the defendant can prove:
  
  • the action or event was due to an event beyond the control of the defendant, such as a natural disaster or mechanical failure
  • the action or event could not have been reasonably foreseen or provided against by the defendant, and
  • the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.
    
• We consider that the objective of protecting New Zealand’s historical and cultural heritage, the comparatively low level of the fines, and the defences above, mean that the limit placed on the right in s25(c) of the Bill of Rights Act is justified.
  

Conclusion

• We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Footnotes:

1. See, for example Atkinson v Minister of Health and others [2010] NZHRRAT 1; McAlister v Air New Zealand [2009] NZSC 78; and Child Poverty Action Group v Attorney-General [2008] NZHRRT 31.
2. Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523 (CA) at [573] per Tipping J (dissenting) relied on in Atkinson v Minister of Health and others [2010] NZHRRT 1 at [199]; McAlister v Air New Zealand [2009] NZSC 78 at [34] per Elias CJ, Blanchard and Wilson JJ and at [51] per Tipping J; and Child Poverty Action Group v Attorney-General [2008] NZHRRT 31 at [137].
3. Atkinson v Minister of Health and others [2010] NZHRRT 1 at [211]- [212]; McAlister v Air New Zealand [2009] NZSC 78 at [51] per Tipping J; and Child Poverty Action Group v Attorney-General [2008] NZHRRT 31 at [137].
4. See, for example, Child Poverty Action Group v Attorney-General [2008] NZHRRT 31 at [179]; and McAlister v Air New Zealand [2009] NZSC 78 at [40] per Elias CJ, Blanchard and Wilson JJ.

5. Hansen v R [2007] NZSC 7 [123].

6. The proportionality test under s 5 of the Bill of Rights Act, as applied in Hansen, draws on the test articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713 and R v Chaulk [1990] 3 SCR 1303. See, for example, Hansen, above n 5, at [42] per Elias CJ; [64] and [79] per Blanchard J; [103], [104] and [120]-

[138] per Tipping J; [185] and [217] per McGrath J; and [272] per Anderson J.

7. Parliamentary Commissioner for the Environment, 1996, and a Ministerial Review 1998/1999.
   

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Heritage New Zealand Pouhere Taonga Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney- General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.