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Education Amendment Bill (Consistent) (Sections 21, 25(c)) [2018] NZBORARp 1; Education Amendment Bill (Consistent) (Sections 21, 25(c)) [2018] (18 January 2018)
Last Updated: 18 November 2018
18 January 2018
Hon Andrew Little, Acting Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Education Amendment
Bill
Purpose
- We
have considered whether the Education Amendment 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 20886/10.0).
We will provide you with
further advice if the final version of the Bill includes amendments that affect
the conclusions in 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 21 (freedom from
unreasonable search and seizure) and s
25(c) (the right to be presumed
innocent). Our analysis is set out below.
The Bill
- The
Bill amends the Education Act 1989 (‘the principal Act’)
to:
- remove
the legislative provisions for national standards
- remove
the legislative provisions for charter schools
- restore
places for staff and students on councils of tertiary education institutions and
increase the size of polytechnic councils
- create
an offence of false representation without reasonable excuse, in relation to an
application to be considered eligible for fees-free
tertiary education, and
- make
changes to the new planning and reporting framework for schools.
- The
Bill also resolves errors and omissions introduced by the Education (Update)
Amendment Act 2017, and makes minor technical
changes.
Consistency of the Bill with the Bill of Rights Act
Section 21 – Freedom from unreasonable search and seizure
- Section
21 of the Bill of Rights Act affirms that everyone has the right to be secure
against unreasonable search or seizure, whether
of the person, their property or
correspondence, or otherwise. The right protects a number of values including
personal privacy,
dignity, and property.1
- Ordinarily,
a provision found to limit a particular right or freedom may nevertheless be
consistent with the Bill of Rights Act if
it can be considered reasonably
justified in terms of s 5 of the Bill of Rights Act. However, the Supreme Court
has held that, logically,
unreasonable search or seizure cannot be demonstrably
justified with reference to s 5 of the Bill of Rights Act.2
In assessing whether the search and seizure powers in the Bill are
reasonable, we have considered the importance of the objective
sought to be
achieved and whether the provisions are rationally connected and proportionate
to that objective.
- The
principal Act gives powers of entry and inspection to authorised persons to
ensure that early childhood centres comply with the
relevant legal requirements.
Section 319B of the principal Act enables an authorised person without a warrant
to inspect an early
childhood centre, to audit the centre, or assess legal
compliance. An authorised person can copy and remove relevant documents.
- Clause
17 of the Bill amends the principal Act to extend these same entry and
inspection powers to offices associated with an early
childhood education
centre. This is because relevant documents may be held at the head or regional
offices of early childhood education
services rather than the early childhood
centre itself. These powers constitute search and seizure powers for the
purposes of section
21 of the Bill of Rights Act.
- The
principal Act contains a number of constraints on the exercise of these
powers:
- the
purpose of the inspection and seizure powers are explicitly set out (such as to
perform an audit, or assess compliance with the
relevant legal
requirements)
- the
manner in which the powers can be exercised is explicitly stated and limited
(including by specifying the authorisation of inspectors,
the requirement to
produce authorisation and evidence of identity, the types of premises that may
be searched, and the form the inspection
can take), and
- safeguards
are included on the exercise of the powers for the parties in question (for
example, an authorised person can only enter
at a reasonable time, and when
documents are removed from the premises a list of the documents must be made and
the copies must be
returned as soon as is practicable).
- As
a result of these restrictions and safeguards, we consider the provision is not
unreasonable for the purposes of s 21. We therefore
consider that the Bill
appears to be consistent with the right to be secure against unreasonable search
or seizure as affirmed in
s 21 of the Bill of Rights Act.
1 See, for example, Hamed v R
[2011] NZSC 101; [2012] 2 NZLR 305 at [161] per Blanchard J.
2 Cropp v Judicial Committee [2008] 3 NZLR
744 at [33]; Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at [162].
Section 25(c) – Right to be presumed innocent until proved guilty
- Section
25(c) of the Bill of Rights Act affirms that everyone who is charged with an
offence has, in relation to the determination
of the charge, the right to be
presumed innocent until proved guilty according to law. The right to be presumed
innocent requires
the prosecution to prove an accused person’s guilt
beyond reasonable doubt.
- Clause
15 of the Bill provides that an offence is committed if a person makes a false
representation in relation to an application
to receive a fees-free tertiary
education and this is done “without reasonable excuse”.
- “Without
reasonable excuse” provisions were formerly considered to reverse the onus
of proof (at least where the defendant
was proceeded against summarily), thereby
limiting a defendant’s right to be presumed innocent until proved guilty.
However,
since the repeal of s 67(8) of the Summary Proceedings Act 1957,
offences of this nature can be interpreted consistently with the
presumption of
innocence. Accordingly, the prosecution must prove beyond a reasonable doubt
that a defendant did not have a reasonable
excuse once an evidential burden is
met.3
- We,
therefore, consider that the Bill appears to be consistent with the right to be
presumed innocent until proved guilty affirmed
by s 25(c) 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
3 King v Police
[2016] NZHC 977 at [24].
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