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Taxation (Annual Rates for 2017-18, Employment and Investment Income, and Remedial Matters) Bill (Consistent) (Sections 5, 14) [2017] NZBORARp 6 (2 March 2017)
Last Updated: 7 January 2019
2 March 2017
Hon Christopher Finlayson QC, Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Taxation (Annual Rates
for 2017–18, Employment and Investment Income,
and Remedial Matters)
Bill
Purpose
- We
have considered whether the Taxation (Annual Rates for 2017–18, Employment
and Investment Income, and Remedial Matters) Bill
(‘the Bill’) is
consistent with the rights and freedoms affirmed in the New Zealand Bill of
Rights Act 1990 (‘the
Bill of Rights Act’).
- We
have not yet received a final version of the Bill. This advice has been prepared
with the latest version of the Bill (PCO 19964/11.11).
We will provide you with
further advice if the final version of the Bill includes changes that affect the
conclusions of this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 14 (freedom of expression).
Our analysis is set out below.
The Bill
- The
Bill is a taxation omnibus Bill which amends the Income Act 2007, the Tax
Administration Act 1994 and seven other pieces of legislation.
- The
main objectives of the Bill are to modernise and improve the settings for the
administration of the tax system through a series
of measures relating to
employment and investment income information, the electronic filing threshold
for goods and services tax
(‘GST’), amendments to the pay as you
earn (‘PAYE’) rules, and amendments to penalty and interest
rules.
- The
Bill also contains proposals aimed at improving current tax settings within a
broad- base, low rate framework where the tax treatment
of alternative forms of
income and expenditure is intended to be as even as
possible.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of Expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including the freedom to seek,
receive, and impart information and
opinions of any kind in any form. The right has been interpreted as including
the right not to
be compelled to say certain things or to provide certain
information.1
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705 (1977).
- The
Bill has a number of requirements for the provision of certain information
including:
- employers
being required to provide PAYE information to Inland Revenue on a payday basis
(rather than on a monthly basis)
- employers
being required to provide information about new and departing employees (before
the next return of payday information)
- employers
being required to disclose the value of share benefits employees receive under
employee share schemes (and any tax they
choose to withhold under the PAYE
rules), and
- investors
being required to disclose certain investment income information (in order to
reduce compliance costs and allow Inland Revenue
to pre-populate tax
returns).
- 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.
- We
consider that the limitation is justified under s 5 of the Bill of Rights Act
because:
- the
objective of ensuring Inland Revenue has all information relevant to administer
the tax system is sufficiently important
- requiring
the people who hold that information to provide the information to the
Commissioner is rationally connected to that objective
- the
above clauses only require the provision of certain factual information that is
relevant to the specific objectives so impair
this right no more than is
reasonably necessary, and
- given
the importance of taxation to the function of Government the above limits are
proportionate to the importance of the objective.
- For
these reasons, we conclude that any limits to the freedom of expression imposed
by the Bill are justified under s 5 of the Bill
of Rights
Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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