You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2020 >>
[2020] NZBORARp 20
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
COVID-19 Response (Further Management Measures) Legislation Bill - (Crown Law) (Consistent) (Sections 13, 23, 24, 25 and 27(1)) [2020] NZBORARp 20 (30 April 2020)
Last Updated: 26 May 2020
30 April 2020
Attorney-General
COVID-19 Response (Further Management Measures)
Legislation Bill (PCO 22874/4.0) – Consistency with New Zealand Bill
of Rights Act 1990
Our Ref: ATT395/313
- We
have been asked to consider the following provisions in the COVID-19 Response
(Further Management Measures) Legislation Bill1
(“the Bill”) for consistency with the New Zealand Bill of Rights Act
1990 (“the Bill of Rights Act”):
1.1 Schedule 6, Part 1
(amendments to the Coroners Act 2006);
1.2 Schedule 6, Part 2 (amendments to the Courts (Remote Participation) Act
2010);
1.3 Schedule 6, Part 3 (amendments to Epidemic Preparedness Act 2006);
and
1.4 Schedule 14 (amendments to the Property Law Act 2007).
- In
our opinion the provisions in the above schedules are not inconsistent with any
of the rights and freedoms that are affirmed by
the Bill of Rights
Act.
Background
- The
Bill amends over 40 Acts in order to make legislative changes that are necessary
to respond effectively to the COVID-19 pandemic.
- It
does so across a broad spectrum of legislation. Among the Acts which it amends
are the above Acts which are, save for the Epidemic
Preparedness Act 2006,
administered by the Ministry of Justice. Whilst the Epidemic Preparedness Act is
not administered by the Ministry
of Justice, that Ministry has provided
ministerial approval for the court-related amendments that are contained in the
Bill.2
Schedule 6, Part 1: amendments to
the Coroners Act 2006
- Schedule
6, Part 1 inserts a new s 21B into the Coroners Act 2006. It provides that a
preliminary inspection of a body performed under
s 21A of the Coroners Act
must
Version (22874/4.0).
The Epidemic Preparedness Act 2006 is administered by the Ministry of Health,
but the amendments to this Act provide courts and tribunals
with a discretion to
extend or shorten the time appointed by rules of court or an enactment court
order, for doing an act or taking
a step on the terms “that the court
thinks just if satisfied that it is
necessary or do so
because of the effects of
COVID-19”. As such, the
amendments are relevant to Acts administered by the Ministry of Justice, such
as the Criminal Procedure Act 2011.
O Box 2858 DX SP20208 Wellington 6140 ew Zealand Ph: +64 4 472 1719 ax: +64 4
473 3482
5687801_1 www.crownlaw.govt.nz
also include the taking and testing of nasopharyngeal (i.e. nasal) and
oropharyngeal (i.e. throat and mouth) swabs in any case where
the deceased
person is suspected to have had COVID-19 at the time of death.
- Section
21B will apply whilst the Epidemic Preparedness (COVID-19) Notice
2020
(“the Notice”) is in force and then for a period of 31 days
beginning on the day after the date on which the Notice expires
or is
revoked.3
Analysis
- Whilst
the common law recognises a number of principles governing the treatment
of
the bodies of the deceased,4 the deceased
themselves do not have rights under the Bill of Rights
Act.5 Therefore, s 21B does not engage any of the
rights and freedoms that are affirmed by the Bill of Rights Act, save insofar as
it may
engage the rights and freedoms of the families of the deceased rather
than those of the deceased themselves. For this reason those
provisions of the
Bill of Rights Act which might be engaged by the power to take nose and mouth
swabs from living persons (ss 11
and 21) are not engaged by s
21B.6
- We
have considered whether s 21B might engage the rights of family members of
the
deceased that are affirmed by s 13 of the Bill of Rights Act (the right
to freedom of thought, conscience, religion, and belief, including
the right to
adopt and to hold opinions without interference).
- The
s 13 rights of family members may be engaged in the event that
post-mortem
procedures conflict with their religious rules for the handling
of the bodies of the deceased.7 Members of certain
religious or cultural groups may object to autopsies that involve physical
interference with the body or the removal
of samples from the
body.8 The jurisprudence from the United Kingdom
suggests that such interference
3 New section 21B(3).
4 Takamore v Clarke [2012] NZSC 116; [2013] 2 NZLR 733 (SC); Takamore v Clarke
[2011] NZCA 587; [2012] 1 NZLR 573 (CA).
5 T v R [2016] NZCA 148, at [30]-[31] in which it was held that the
reference in s 29 to natural persons should be taken to be a
reference to living persons. Therefore, the dead have no rights under the
Bill of Rights Act.
Whilst there is dicta from Elias CJ in Takamore (SC) that may appear
to be to the contrary (“Proper disposal of bodies engages the human rights
to dignity, privacy and family”
at [1]) those remarks were couched in
general terms and do not necessarily refer to those rights which are affirmed by
the Bill of
Rights Act.
6 For completeness, we have considered whether, in the event that the
deceased were held to have rights under the Bill of
Rights Act, s 21B would be inconsistent with either ss 11 or 21.
In our opinion the taking of mouth or nose swabs would not constitute
“medical treatment” for the purposes of s 11 of
the Bill of Rights
Act since the swabs would be diagnostic for public health purposes rather than
being directly therapeutic for the
person from whom the
swabs are taken. In
reaching this
conclusion we
have considered the Supreme
Court’s decision in New Health New
Zealand In v South Taranaki District Council [2018] NZSC 59. In
that case the Court found that large scale
public health measures could constitute treatment within the meaning of s 11.
However, the Court did so
on the basis that the measure under consideration
(fluoridisation) was intended to provide direct therapeutic benefit to those
drinking
the water.
The taking of such swabs would, however, constitute a search within the
meaning of s 21 which affirms the right to be secure against
unreasonable search
and seizure. Whether a search is unreasonable will depend on a range of factors,
including the nature of the
place or object being searched, the degree of
intrusiveness into personal privacy and the rationale for the search. While the
taking
of swabs from the mouth and nose is an intrusion on personal privacy in
relation to the taking of a bodily sample, we consider it
is a minor intrusion
only, and there is no less intrusive means of testing. Therefore, the intrusion
into personal privacy is proportional
to the public interest in preventing the
spread of COVID-19 throughout New Zealand and would not be
‘unreasonable’.
See R (Goldstein) v HM Coroner [2014] EWHC 3889 (Admin).
Skegg & Patterson eds Health Law in New Zealand (Thomson Reuters,
Wellington, 2015) 30.24.3; ‘Scans vs Scalpels: Privacy, Autopsies and new
technologies’ (2015) 12 (10)
PrivLB 270 by Bruce Baer Arnold considers how
invasive
procedures may be contrary to the religious beliefs and practices of
indigenous people and other ethno-religious
will generally involve a justified limitation on the right to religious
freedom when the interference is necessary to establish the
cause of death and
this cannot be achieved through less invasive
means.9
- Given
the minimal interference involved in taking nose, mouth or throat swabs,
we
think it highly unlikely that any objection to the taking of such swabs
would be advanced on religious grounds. In the unlikely event
that the taking of
such swabs did prove to be contrary to particular religious practices, it may be
that s 21B would involve a limitation
on the right to freedom of religion that
is affirmed by s 13.
- However,
any such limitation would be justified under s 5 of the Bill of Rights Act
as
a reasonable limit on that right that is prescribed by law and can be
demonstrably justified in a free and democratic society. The
interference with
the body would be minimal and the procedures confined to those who are suspected
of having been infected by COVID-19.
The limitation would be in the public
interest of preventing the spread of COVID-19 throughout New Zealand. The
limitation only lasts
whilst the Notice is in force and then for a further 31
days after it expires or is revoked.
- It
is therefore our opinion that the new s 21B of the Coroners Act 2006 would
not
be inconsistent with any of the rights and freedoms that are affirmed by
the Bill of Rights Act.
Schedule 6, Part 2: amendments to the
Courts (Remote Participation) Act 2010
- Schedule
6, Part 2 inserts a new s 7A into the Courts (Remote Participation) Act
2010
(“the 2010 Act”) which provides for the use of audio-links
(“AL”) instead of audio-visual links (“AVL”)
in civil
proceedings. It also inserts a new s 8A which provides for the use of AL links
in certain criminal procedural and sentencing
hearings.10 The impact of these provisions must be
understood against the backdrop of the existing ss7 and 8 of the 2010 Act.
- Section
7 of the 2010 Act provides a registrar or judicial officer with the power
to
determine that a participant11 in civil
proceedings may appear by AVL link. The decision-maker is required to take into
account whether the parties consent to this
mode of appearance and also the
criteria set out in s 5 of the 2010 Act (which include the nature of the
proceedings (s 5(a)) and
the effect of AVL on the effective maintenance of the
rights of other parties (s 5(c)).
- The
new s 7A provides a registrar or judicial officer with the power to
determine
whether a participant in civil proceedings may appear by AL instead
of by AVL in circumstances where an appearance by AVL would otherwise
be
available. In making the determination the decision-maker must consider the
criteria in s 5, in relation to AL itself. Finally,
the decision-maker must only
make the order if satisfied that it would not be unjust to allow an appearance
by AL rather than AVL.
communities
that include adherents of
Judaism, Islam or
groups such as the
Jehovah’s Witnesses and some Pacific
Islanders.
9 R (Goldstein) fn 7, above; R. (on the application of Rotsztein) v
HM Senior Coroner for Inner North London [2015] EWHC
2764 (Admin).
10 Schedule 4, Part 2, cls 3
and 4.
11 The range of parties that may appear remotely includes a party, the
defendant, counsel, a witness, a jury member,
the judicial officer
presiding over the proceedings and
any other person directly
involved whom
judicial officer
considers appropriate (see
Courts (Remote
Participation) Act 2010,
s 3).
- Section
8 of the 2010 Act set out the circumstances in which a registrar or
judicial
officer either may or must determine that a participant in a
procedural or sentencing criminal hearing should appear by AVL. Section
9
provides that AVL may be ordered in substantive criminal hearings (but not for a
trial unless the defendant consents). In exercising
these powers the
decision-maker must consider not only the criteria in s 5 but also the criteria
in s 6, which require the Court
to give consideration to a number of specific
ways in which the use of AVL may have an impact on the ability of the accused to
conduct
his defence.
- The
new s 8A provides a registrar or judicial officer with the power to
determine
whether a participant in procedural or sentencing criminal hearings
may appear by AL instead of by AVL in circumstances where AVL
may or must be
used. However, this power applies only in respect of those hearings in which the
defendant is not required to attend.
In making its determination the decision
maker must consider the criteria in ss 5 and 6 specifically in relation to AL,
and may then
only make the order if satisfied that it would not be unjust to
allow an appearance by AL rather than AVL.
- Both
provisions (ss 7A and 8A) are repealed when the Epidemic
Preparedness
(COVID-19) Notice 2020 (“the COVID-19 Notice”)
expires or is
revoked.12
Analysis
- The
right of a party to be physically present at court and to ensure the
physical
presence of witnesses is a fundamental feature of the right to a
fair trial13. In criminal proceedings it is affirmed by
sections 23(3), 24(c), 25(a) and 25(f) of the Bill of Rights Act. In civil
proceedings
it is affirmed through s 27(1) which affirms the right to natural
justice.
- However,
the decision to allow an appearance by AVL or AL is not
necessarily
inconsistent with these rights as long as it does not give rise
to unfairness.14
- Whether
it would be unfair will depend on the circumstance of each case. Whilst it
is
not possible to exhaustively define all those factors which should have a
bearing on a particular decision, an important matter will
often be the ability
to assess the credibility of witnesses and so to effectively challenge those
witnesses through cross-examination
in the absence of their physical presence in
court. In this, and in other respects, appearances by AL may give rise to
greater impact
on the rights of parties than AVL. As a consequence the decision
as to whether to allow AL rather than AVL must be considered with
great
care.
- These
new provisions provide the court with the power to determine
that
participants may appear by AL during the period in which the COVID-19
Notice is in force where AVL would otherwise be available. However,
the
discretion provided in respect of criminal proceedings is not available for
substantive hearings, nor for procedural and sentencing
hearings of such
significance that the defendant is required to be present. It thereby confines
the power to those criminal hearings
where there is least potential for
injustice arising from appearances by
AL.
12 Sections 7A(3) and
8A(2).
13 Jones v R [2002] EWCA Crim 2949; (2003) 1 AC 1.
14 Accused v AG (1997) CRNZ 148, 153-154; Donnelly v Ireland
(1998) 1 IR 321 (Supreme Court of Ireland).
- In
respect of both civil and criminal matters the safeguards to ensure that the
discretion is exercised fairly are that the criteria
for s 5 and (in respect of
criminal hearings) s 6 must be considered specifically in relation to AL, but
also that the decision-maker
must be satisfied that it would not be unjust to
allow the appearance to take place by AL rather than by AVL.
- Unlike
ss 7 and 8 the new provisions do not expressly require the Court to take into
account whether the parties consent to an appearance
by AL. However, this will
be a relevant consideration that should be taken into account under s 5(d) (any
other relevant matters).
- Finally,
ss 3 and 6 of the Bill of Rights Act15 have the effect
that these provisions must be interpreted and applied so as to give effect to
the rights affirmed by the Bill of
Rights Act.
- In
our opinion these provide sufficient safeguards to ensure that, if properly
applied, the discretion to allow appearances by AL
will be exercised in
accordance with the rights affirmed by the relevant provisions of the Bill of
Rights Act.
- We
therefore conclude that the amendments to the Courts (Remote Participation) Act
2010 are not inconsistent with the rights and freedoms
that are affirmed by the
Bill of Rights Act.
Schedule 6, Part 3; Amendment to the Epidemic
Preparedness Act 2006
- Schedule
6, Part 3 of the Bill inserts new Schedules 1 and 2 into the Epidemic
Preparedness Act 2006.
- Schedule
2 gives courts a discretion to extend or shorten the time appointed by rules of
court or an enactment, or fixed by a court
order, for doing an act or taking a
step on the terms “that the court thinks just if satisfied that it is
necessary or do so
because of the effects of COVID-19, the workloads of the
courts generally or the progress of a particular proceeding”.
- Schedule
2 applies to all court proceedings, both criminal and civil, as well as to
Tribunal proceedings.
- Schedule
1 provides that any such extension or shortening of time will apply to the
proceedings until they are concluded, whether
or not Schedule 2 is repealed
before the proceedings are concluded.
- Schedule
2 is to continue in force until either (depending on which occurs
first):
32.1 31 October 2021; or
32.2 a date set by the Governor-General by Order in Council made on the
recommendation of the Minister of Health with the agreement of the Minister
of Justice.16
15 Section 3(a) provides that the Bill of Rights applies to acts done by the
legislative, executive, or judicial branches of
the Government of New Zealand; s 6 provides that “Wherever an enactment
can be given a meaning that is consistent with the rights
and freedoms contained
in this Bill of Rights, that meaning shall be preferred to any other
meaning”.
16 New s 27(2) that Schedule 4, Part 3 inserts into the Act.
- The
recommendation of the Minister for Health may be made if the Minister
is
satisfied that it is unnecessary for Schedule 2 to remain in force because
either the effects of COVID-19 have diminished to such
an extent that it is no
longer necessary to rely on the changes made to the law or for some other reason
the provision is no longer
necessary.17
Analysis
- We
have considered whether Schedule 2 is consistent with the rights of a
person
arrested and detained that are affirmed by s 23, the rights of person
charged that are affirmed by s 24, the minimum rights of criminal
procedure that
are affirmed by s 25 and the right to natural justice that is affirmed by s
27(1).
- Neither
ss 23, 24 nor 25 themselves provide specific time limits by which
particular
steps in the process of criminal investigation and prosecution
must be taken. However, they do require various steps in the criminal
process to
be taken ‘promptly’ ‘as soon as possible’ and
‘without undue delay’18 as well as
affirming the principle that an accused person must have adequate time for the
preparation of his defence.19
- Section
27(1) affirms the right to natural justice, which involves the right to a
fair
hearing. The right to a fair hearing in turn may involve the rights to
notice (as to hearing and as to the content of the case against
one, where
relevant), to representation, to an impartial determination, to an oral hearing,
and to consultation with a legal representative
in advance of the
hearing.20 It may also be argued that s 27(1) requires
the procedural rules which govern the conduct of legal proceedings to reach the
minimal
standards of accessibility, intelligibility, clarity and predictability
that are required by the rule of law,21 insofar as this
is necessary to ensure a fair hearing in a particular case.
- However,
none of this is inconsistent with the power of the Courts to amend the
time
limits relating to the conduct of individual proceedings, when it is in the
interests of justice to do so.
- It
should be noted that most of the significant procedural rules in civil and
criminal
matters are contained in the Criminal Procedure Rules 2012, the High
Court Rules 2016 and the District Court Rules 2014, all of which
already provide
the Courts with a discretion to extend or shorten the time set by the respective
rules for doing anything in a proceeding.22 The
discretion that is provided by Schedule 2 goes further in that it enables the
Court to adjust the time limits that are contained
in primary legislation.
However, this power may only be exercised ‘on the terms that the court
thinks just’.
17 New section
27(3).
18 For example, s 23(3) provides
that an arrested person
must be charged promptly
or released; s 23(4) that
an
accused person arrested and not released must be bought before a court
‘as soon as possible’; 24(a) everyone charged shall
be informed
‘promptly’ of the nature and cause of the charge; s 25(b) the
accused has the right to be tried without undue
delay.
19 Section 24(d).
20 These principles, developed under the common law right to natural justice,
are now also affirmed through s 27(1).
21 Lord Bingham “The Rule of
Law” (2007) Cambridge Law Journal, Volume 66, Issue 1 at
67–69.
22 Rule 1.7 of the Criminal Procedure Rules 2012; r 1.9 of the
High Court Rules 2016; r 1.23 of the District Court
Rules 2014.
- Further,
on the basis of ss 3 and 6 of the Bill of Rights Act,23
Schedule 2 must be
interpreted and applied consistently with the rights
affirmed by the Bill of Rights Act. Were a Court to exercise the discretion
provided
by Schedule 2 in a manner that was inconsistent with the rights
affirmed by the Bill of Rights Act, that inconsistency would be the
result of
the decision of the Court or Tribunal in question. It would not be an
inconsistency that arose from Schedule 2 itself.
- Certain
provisions of the Bill of Rights Act require steps in criminal proceedings
to
take place in an unequivocally expeditious manner (for example, the right
of the accused to be informed ‘promptly’ of
the nature and cause of
the matter with which he is charged).24 The obligation
to comply with them would be unchanged by Schedule 2. Other procedural rights
require the courts to consider a range
of factors, most notably the right to be
tried ‘without undue delay’25.
Determinations as to what is ‘undue’ might well take into account
the impact of COVID-19 as envisaged by Schedule 2.
- We
therefore conclude that the amendments to the Epidemic Preparedness Act
2006
that the Bill would bring into force are not inconsistent with the
rights and freedoms that are affirmed by the Bill of Rights
Act.
Schedule 14: amendments to the Property Law Act 2007
- Schedule
14 contains the following amendments to the Property Law Act 2007
(‘the
2007 Act’).
- New
ss 120A to 120E amend those sections of the 2007 Act which relate
to
remediation of defaults on mortgages over land. Specifically, these new
sections extend the period for the remediation of defaults
from 20 to 40 days
(“outbreak extension remedial period”) if the default occurs between
1 April 2020 and the close of
the 6-month period that starts on the date on
which the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked
(“the
COVID-19 period”).
- If,
during the COVID-19 period, a notice for remediation of default is served
under
s 120 of the 2007 Act, the outbreak extension remedial period applies
to it.26 Enforcement action which has been commenced
during the COVID-19 period but before the commencement of these provisions and
is inconsistent
with them is deemed not to comply with the requirements for
valid notice and therefore the powers available to the mortgagee to enter
possession, manage, sell or recover income are not
available.27 Further, these provisions apply to any
legal proceedings commenced, but not finally determined, before the commencement
of these
provisions.28
- Similarly,
new ss 129A to 129E extend the period for remediation of defaults
on
mortgages over goods. The period for remediation of breaches of such
mortgages is
23 See fn 15, above.
24 Section 24(a) of the Bill of Rights Act.
25 Section 25(b) of the Bill of Rights Act.
26 New section 120B of the Property Law Act 2007.
27 New section 120D
which provides that such
action does not comply
with section 119(1) of the 2007
Act. However,
120D preserves the interests of those who have acquired interests in
mortgaged property in good faith.
28 New section 120E.
extended from 10 to 30 days.29 This extension
remedial period applies in the same manner as the remedial period for mortgages
over land to notices, enforcement
action and legal proceedings.
- Finally,
new ss 245A to 245E apply to a lease if it is in operation at any time in
the
COVID-19 period and the rent has been in arrears at any time during that
period. These provisions extend the period of rent arrears,
following which a
lease can be cancelled under s 245 of the 2007 Act, from 10 days to 30
days.30 This extension period applies to notices,
enforcement action and legal proceedings taken in respect of the rent arrears
during the
COVID-19 period, in the same way as the preceding provisions in
relation to mortgages.
Analysis
- These
provisions may have an adverse impact on the property rights of
mortgagees
and lessors. However, the Bill of Rights Act provides no
substantive protection for property rights.31
Therefore, the issue is whether the provisions engage any of the procedural
protections that the Bill of Rights Act affirms.
- The
provisions have retrospective effect in that they expressly provide that they
are
to have an effect on notices, enforcement actions and legal proceedings
that were served or commenced before the provisions came into
force.32
- Sections
25(g) and 26(1) affirm the right to be free from retrospectivity in relation
to
criminal proceedings.33 However, the Bill of
Rights Act contains no express affirmation of the right not to be subject to
retrospective legislation in civil
matters. It may be suggested that s 27(1)
(the right to natural justice) implies a principle of non-retrospectivity in
relation to
civil matters. However, for the following reasons it is our opinion
that it does not do so:
49.1 the principles and implications of the
right to natural justice may be broad
but not so broad as to embrace the distinct and separate principle of
nonretrospectivity;34
49.2 whilst the common law and international law prohibition on
retrospectivity
in criminal matters is firm and longstanding,35 the
approach to retrospectivity affecting civil rights is more
flexible;36 and
29 New section 129B.
30 New section 245B.
31 In Westco Lagan v AG [2000] NZHC 1350; [2001] 1 NZLR 40 (HC), the Court
held that neither s 21 (protection
against unreasonable
search and seizure) nor s 27(1) (the right to natural justice) gave rise to
any right to compensation for loss of property through
the actions of the
state.
32 Retrospectivity is the
subject of various,
competing definitions (see the
discussion in ‘Legislation with Retrospective
Effect,
with Particular Reference to Tax Loopholes and Avoidance’ (2006)
22 NZULR 17 by Prebble, Prebble and Smith). However, these provisions
fall within the definition of retrospective legislation that is found in Part 1
and 2 of chapter
12 of the Legislation Guidelines (2018 Edition).
33 Section 25(g) provides the
right, ‘if convicted
of an offence in respect
of which the penalty has
been varied between
the commission of the offence and sentencing, to the benefit of the lesser
penalty’; section 26(1) provides that ‘No one
shall be liable to
conviction of any offence on account of any act or omission which did not
constitute an offence by such person
under the law of New Zealand at the time it
occurred’.
34 Accounts of the principles of natural justice to be found in such cases as
Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, do not refer to
the principles of non-retrospectivity.
35 R v Pora [2000] NZCA 403; [2001] 2 NZLR 37, Elias CJ at
[32]; Article 15 of the ICCPR.
36 Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501.
49.3 the fact that Parliament chose to expressly affirm the right not to be
subject
to retrospectivity in criminal matters but not in relation to civil matters
is an indication that it was not Parliament’s intention
to affirm a right
to not be subject to retrospectivity in civil matters.
- In
the event that we are wrong and s 27(1) does affirm the right to be free from
the
adverse effects of retrospective legislation in civil proceedings, we
have gone on to consider whether the limitation on the right
brought about by
these provisions would be justified under s 5 of the Bill of Rights Act, in that
it subjects the right to a reasonable
limit, prescribed by law and demonstrably
justified in a free and democratic society. In our opinion such a limitation
would be justified
under s 5 in that:
50.1 the limitation is
introduced as a result of a pressing and urgent public need;
namely the impact of COVID-19 and of the measures properly taken to limit the
spread of COVID-19 on the ability of mortgagors and
lessees to meet their
ongoing obligations; and
50.2 the measures have effect for a limited period only and are tied to
the
ongoing existence of this pressing social need.
- For
these reasons it is our opinion these provisions are not inconsistent with any
of
the fundamental rights and freedoms that are affirmed by the Bill of
Rights Act.
Review of this advice
- In
accordance with Crown Law’s policies, this advice has been peer reviewed
by
Crown Counsel, Vicki McCall.
Noted
Daniel Jones Crown Counsel
027 213 8751
Hon David Parker
Attorney-General /
01 05 /2020
Whilst s 7 of the Interpretation Act 1999 provides that an enactment does not
have retrospective effect, this is subject to the principle
of Parliamentary
sovereignty which requires that such legislation must have retrospective effect
when the legislation in question
expressly provides that it shall. This is
reflected by the approach of the common law to retrospective legislation in
civil proceedings,
where legislation is interpreted in order to avoid it having
retrospective effect, except insofar as it was Parliament’s clear
intention that it should have retrospective effect (see Maxwell v Murphy
[1957] HCA 7; (1957) 96 CLR 261, 267).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2020/20.html