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Infrastructure Funding and Finance Bill 2019 (Consistent) (Sections 14, 21) [2019] NZBORARp 58 (12 November 2019)
Last Updated: 28 March 2020
12 November 2019
LEGAL ADVICE
LPA
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Infrastructure Funding
and Finance Bill 2019
Purpose
- We
have considered whether the Infrastructure Funding and Finance Bill 2019
(‘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 21905/7.0).
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 14 (freedom of expression)
and 21 (unreasonable search and
seizure). Our analysis is set out
below.
The Bill
- The
purpose of the Bill is to address housing affordability by reforming the system
for the financing of water services, land transport,
community and environmental
resilience infrastructure associated with housing development.
- The
Bill’s objectives are that local authority and financing constraints do
not prevent or delay the timely provision of infrastructure
to support housing
and urban development, that urban development is supported by infrastructure
that supports community needs, and
that the costs of infrastructure are
appropriately allocated.
- To
achieve the purpose and objectives, the Bill establishes an alternative funding
and financing model for the timely and responsive
provision of infrastructure to
support housing demands. The Bill proposes to do this by setting a multi-year
levy which is to be
paid by beneficiaries of infrastructure and collected by the
responsible territorial authority by way of a rate.
- Any
person may propose that a levy be authorised to fund eligible costs to support
the financing of the construction of eligible infrastructure.
The proposer must
give the proposal to the recommender (a government agency appointed by the
Governor-General on the recommendation
of the responsible Minister). The
Governor-General may, by Order in Council, authorise the use of a levy. The levy
order will identify
a Special Purpose Vehicle (“SPV”) that is
responsible for the financing and funding of the costs of infrastructure and
provide whether that SPV is also responsible for the construction of the
infrastructure. A monitor (a government agency appointed
by the Governor-General
on the recommendation of the responsible Minister) ensures a responsible
SPV’s compliance with the
Act and levy order.
- To
achieve its purpose, the Bill also amends the Land Transport Management Act
2003, the Local Government Act 2002, the Local Government
(Auckland Council) Act
2009, the Local Government Official Information and Meetings Act 1987, the
Public Works Act 1981, the Property
Law Act 2007, the Resource Management Act
1991 and the Utilities Access Act 2010.
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
- Several
clauses in the Bill compel the provision of information to government related or
government appointed parties, or the publication
of particular information
outlined in the Bill. Clauses that compel the provision or publication of
information include clauses 22,
28, 32(4), 32(5), 39, 40, 43(2), 46, 47, 48, 92,
94, 105, 106, 107, 131, 132 and 153.
- The
Bill sets offences for failing to provide information. Clause 147 provides that
it is an offence under the Bill to refuse or fail
to give information required
under the Bill, without reasonable excuse. Conviction would lead to a fine of up
to $2000 for individuals,
and up to $5000 in any other case.
- These
clauses may be seen to limit s 14 of the Bill of Rights Act, as they compel the
provision of certain information. 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 a
reasonable limit that is justifiable under s 5 of that Act.
- The
s 5 inquiry may be approached as follows:
- Does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- If
so, then:
- Is
the limit rationally connected with the objective?
- Does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- Is
the limit in due proportion to the importance of the objective?
2
- We
consider that the limitations in the Bill are minimal and justified taking into
account the purpose of the Bill (set out at para
4) and objectives of the
provisions (set out at para 5).
- The
requirements to provide information place obligations only on actors involved in
the SPV process and on governmental bodies. The
requirements for information are
restricted to information that will aid the bodies in their particular roles.
For instance, the
powers provided will help the recommender assess
the proposer’s proposal for levy authorisation, provide the Minister with
sufficient
information to assess whether it is appropriate to approve a levy
proposal, assist the responsible SPV in setting the annual levy,
and enable the
monitor to assess compliance with the Bill and levy order. This will support the
important objective of enabling the
provision of infrastructure to support urban
development without the delays associated with the current model of funding, and
allowing
for the costs of infrastructure to be appropriately allocated. It also
promotes transparency of the decision-making process and levy
collection. The
power is limited to that which is reasonably necessary to fulfil those roles and
is proportionate to the objectives.
- Although
some of this information could be commercially sensitive, the information is not
of significant expressive value. Therefore,
we consider that the imposition on
the right to freedom of expression is minimal.
- We
therefore conclude that any limits to the freedom of expression imposed by the
Bill are justified under s 5 of the Bill of Rights
Act.
Section 21: 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, property,
correspondence, or otherwise. The right protects a number of values including
personal privacy, dignity,
and property.3
- Clause
5 of Schedule 2 of the Bill proposes to amend the Local Government Act 2002 by
inserting new section 173A to allow a local
authority to exercise the power of
entry under section 173 of the Local Government Act 2002 for the purpose of
doing anything that
a responsible SPV is authorised to do under new section
181A. Proposed new section 181A provides that a responsible SPV may exercise
the
powers of a local or territorial authority under section 181 of the Local
Government Act for the construction of eligible infrastructure
in a levy area.
Section 181 of the Local Government Act provides a local authority with powers
to construct works on private land
in certain circumstances.
- The
power of entry pursuant to section 173 of the Local Government Act 2002 may be
exercised in cases of emergency. This section grants
the local authority the
power to enter occupied land or buildings without giving prior notice if there
is a sudden emergency likely
to cause loss of life or injury to a person, damage
to property, or damage to the environment, or danger to any works or adjoining
property. The effect of proposed new section 173A is to extend the powers of a
local authority to exercise powers of entry in cases
of emergency in respect of
anything that a responsible SPV is authorised to do.
- We
consider that the exercising of these entry and associated powers would
constitute a search under s 21 of the Bill of Rights Act.
- Ordinarily,
a provision found to limit a particular right or freedom may be consistent with
the Bill of Rights Act if it can be considered
reasonably justified in terms of
s 5 of that Act. However, the Supreme Court has held that an unreasonable search
logically cannot
be reasonably justified and therefore the inquiry does not need
to be undertaken.4
Rather, the assessment
to be undertaken is first, whether what occurs is a search or seizure, and, if
so, whether that search or seizure
was reasonable. In assessing whether the
extension of the search and seizure powers in the Bill are reasonable, we have
considered
the place of the search, the degree of intrusiveness into privacy,
and the reasons why it is necessary.5
- Entries
authorised under the Bill may take place on any occupied land or building
subject to the terms of section 173 of the Local
Government Act 2002. The power
of entry may only be exercised where there is a sudden emergency causing or
likely to cause loss of
life or injury to a person, damage to property or damage
to the environment or there is danger to any works or adjoining property.
A
local authority may also only enter for the purpose of doing anything that it is
authorised to do under the Local Government Act.
The power of entry is also
subject to Part 4 of the Search and Surveillance Act 2012.
- The
degree of intrusiveness is high as the local authority may enter property that
is private, without providing any prior notice.
However, the purpose of the
power, as we interpret it, is to protect adjoining land and its occupants from
adverse consequences of
the construction of eligible infrastructure in cases of
emergency and may only do so for the purpose of doing anything that it is
authorised to do under the Local Government Act. We therefore consider that the
search is reasonable to prevent potential harm to
people, property, or the
environment.
- We
therefore conclude that any searches conducted under the Bill are reasonable,
and therefore do not conflict with s 21 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.
Edrick Child
Chief Legal Counsel Office of Legal Counsel
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