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Land Transport Management (Regional Fuel Tax) Amendment Bill (Consistent) (Section 14, 21, 26(2)) [2018] NZBORARp 25 (14 March 2018)
Last Updated: 3 January 2019
14 March 2018
Hon David Parker, Attorney-General
LEGAL ADVICE
LPA 01 01 23
Consistency with the New Zealand Bill of Rights Act 1990: Land Transport
Management (Regional Fuel Tax) Amendment Bill
Purpose
- We
have considered whether the Land Transport Management (Regional Fuel Tax)
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
in relation to the latest version of the Bill
(PCO 20824/6.7). 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 ss 14 (freedom of expression),
21 (unreasonable search and seizure),
and 26(2) (double jeopardy). Our analysis
is set out below.
The Bill
- The
Bill amends the Land Transport Management Act 2003 to create a regulatory regime
for regional fuel tax schemes (new Subpart 3
of the Act). These schemes are to
enable regional councils to fund capital projects that cannot reasonably be
fully funded from other
sources. The Bill provides for the establishment,
review, variation, administration, and enforcement of such
schemes.
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
- The
Bill creates a regulatory regime for regional fuel taxes. As is common with
regulatory legislation, the Bill contains provisions
compelling the provision of
information, which prima facie engages the right to freedom of
expression. However, we consider the
1 RJR-MacDonald Inc. v Canada (Attorney
General) 1995 3 SCR 199.
restrictions on the right to freedom of expression in the Bill are clearly
justified for the efficient administration of the regulatory
regime.
Section 21 – Unreasonable search and seizure
- Section
21 of the Bill of Rights Act provides that everyone has the right to be secure
against unreasonable search or seizure, whether
of the person, property,
correspondence or otherwise.
- Clause
5, new s 65ZB, of the Bill provides for an enforcement officer to apply for a
search warrant in respect of suspected offences
under new s 65ZC. As the
provision provides that the application for, and execution of, the warrant is
pursuant to the relevant provisions
of the Search and Surveillance Act 2012, we
do not consider there to be any issue of
unreasonableness.
Section 26(2) – Double jeopardy
- Section
26(2) of the Bill of Rights Act provides that no one who has been convicted of
an offence shall be punished for it again.
- Clause
5, new s 65ZC, of the Bill makes it an offence to knowingly or recklessly refuse
or fail:
- to
file a monthly return in accordance with new s 65Q; or
- to
pay any regional fuel tax in accordance with new subpart 3.
- New
ss 65R(2) and 65S(2) and (3) provide for additional tax to be paid if a monthly
return is not filed on time or a regional fuel
tax is not paid on time.
- It
is possible for a person to be prosecuted and be liable to additional tax for
the same conduct in respect of late filing or late
payment. However, we do not
consider that this engages the right against double jeopardy as that right is
concerned with criminal
sanctions, whereas the additional tax is civil in
nature.
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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