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Building (Building Products and Methods, Modular Components, and Other Matters) Amendment Bill (Consistent) (Sections 14, 21, 25(c)) [2020] NZBORARp 26 (16 March 2020)
Last Updated: 15 June 2020
16 March 2020
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Building (Building
Products and Methods, Modular Components, and Other
Matters) Amendment
Bill
Purpose
- We
have considered whether the Building (Building Products and Methods, Modular
Components, and Other Matters) 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 21914/4.11). We have spoken
with the Ministry of Business, Innovation, and Employment (‘MBIE’)
and they have agreed
to make the following amendments to the Bill:
- amend
new s 207BB to make it clear that the powers of entry and inspection only apply
to members of the certification scheme and remove
subsection (1)(c) which
enables the power of entry and inspection to be used for the purpose of taking
of enforcement action;
- enable
the same conditions for entry and inspection that are afforded to household
units in new s 207BC to also apply to marae; and
- amend
new s 272T(6) and s 272ZE(6) to clarify that the chief executive may only take
investigative or enforcement action in accordance
with the Building Act
2004.
- We
have written the advice on the basis that these agreed amendments will be
included in the introduction version of the Bill. We
will provide you with
further advice if the final version 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), s
21 (unreasonable search and
seizure) and s 25(c) the presumption of innocence.
Our analysis is set out below.
The Bill
- The
Bill amends the Building Act 2004 (‘the principal Act’) in order to
address the challenges faced by the building sector such as low productivity,
inefficient
practices and processes, skills and labour shortages, financial
vulnerability and poor health and safety practices. The Bill is expected
to
improve trust and confidence in the building regulatory system and sector and
reduce the risk to New Zealand’s reputation
from product and building
defects.
- Key
features of the Bill include:
- introducing
minimum requirements for information about building products so that members of
the industry know their obligations under
the
scheme;
- creating
a specialist framework for modular components (a building product of a certain
kind e.g. a prefabricated section of a building)
by establishing a voluntary
certification scheme;
- providing
the chief executive of MBIE (‘the chief executive’) with new powers
of entry and inspection for investigative
purposes in relation to ensuring
compliance with the building product certification scheme, the modular component
scheme and the
building product information requirements;
- new
strict liability offences, and increased maximum penalties (including penalties
that now distinguish between individuals and body
corporates);
- strengthening
the building product certification scheme by creating new certification
requirements; and
- widening
of the building levy to fund the chief executive’s monitoring, oversight,
and performance improvement of the building
industry.
- The
Bill also makes changes to some public notification requirements and includes
consequential amendments to the Search and Surveillance
Act 2012 and the
Building (Definition of Restricted Building Work) Order
2011.
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.
- A
number of clauses in the Bill propose new sections that require the provision of
information by persons who have voluntarily signed
up to participate in the
product certification or the modular component certification scheme
(‘certification scheme’).
These provisions prima facie engage
the right to freedom of expression.
- The
objective of the certification scheme is to create trust and confidence that
building products meet the specified requirements
and can be considered
safe.1 The requirements to provide information in the
proposed new sections are rationally connected to the objective of establishing
the
certification scheme. The certification body requires information to
register participants in, and effectively manage, the certification
scheme. As
the certification scheme is voluntary in nature and is similar to other schemes
like it, the requirements for information
are proportionate and limit the right
to freedom of expression no more than is reasonably necessary.
- 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.
1 Hansen v R [2007] NZSC 7 at [123]
Section 21 – Unreasonable search and seizure
- Section
21 of the Bill of Rights Act affirms the right of everyone to be secure against
unreasonable search and seizure, whether of
the person, property, correspondence
or otherwise. The right protects a number of values including personal privacy,
dignity, and
property.2
- Clause
55 proposes to add new s 207BB that will enable the chief executive, or a person
with written authorisation from the chief
executive, to enter any premises in
order to inspect the following:
- a
place at which building work is, or is proposed to be, carried out;
- building
work that has been, or is being, carried out; or
- any
building or building product.
- The
chief executive may exercise the power of entry and inspection for the following
investigative purposes in so far as they apply
to members of the certification
scheme:
- determining
whether a provision in subpart 7 and 7A of Part 3 and Part 4B (‘relevant
provisions’) have been complied with;
and
- determining
whether there are any grounds for taking enforcement action to enforce a duty or
obligation under the relevant provisions,
and deciding whether to do
so.
- We
consider that the proposed power of entry and inspection constitutes a search
for the purpose of s 21 of the Bill of Rights Act.
- 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 reasonably
justified and therefore the inquiry does not need to be
undertaken.3
- Rather,
the assessment to be undertaken is first, whether what occurs is a search or
seizure, and if so, whether that search or seizure
is reasonable. In assessing
whether the search 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.
- Entry
under the Bill may take place at any premises for investigative purposes
prescribed in new s 207BB. The degree of intrusiveness
is high as the chief
executive or their representative may enter property that is private, without
providing any prior notice. However,
entry to household units and marae may only
be made with consent of the occupier or in accordance with a warrant issued
under the
Search and Surveillance Act 2012 (see new s 207BE).
- The
privacy expectation in a public welfare regulatory context is lower than in
other contexts. The power of entry and inspection
may only be used for the
following prescribed investigative purposes: monitoring compliance of members of
the certification scheme
2 See, for example, Hamed v R
[2011] NZSC 101; [2012] 2 NZLR 305 at [161] per Blanchard J.
3 Cropp v Judicial Committee [2008] 3 NZLR
744 at [33]; Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at [162].
and for determining whether there are grounds for taking enforcement action.
It is voluntary to participate in the certification scheme
and members will be
aware of their obligations in volunteering to participate in the scheme.
Enforcement action does not involve
criminal charges but is focussed on
enforcing members’ duties and obligations under the relevant provisions by
way of undertaking
an investigation and suspending or revoking registration
and/or accreditation.
- The
purpose of the power is to ensure compliance with the building product
certification scheme, the modular component manufacturing
scheme and the
building product information requirements. This is an important objective
because significant harm could result from
unsafe buildings and building
products, which the Bill aims to mitigate.
- Therefore,
the powers in new s 207BB are rationally connected to the objective of
preventing harm from unsafe buildings and building
products, as the
effectiveness of the scheme relies on the ability of the regulator (MBIE) to
determine whether duties and obligations
under the scheme are being complied
with, and whether they need to be enforced.
- We
therefore conclude that a search conducted pursuant to new s 207BB is
reasonable, and therefore does not conflict with s 21 of
the Bill of Rights
Act.
- For
completeness, we note that new s 207A of the Bill provides the chief executive
with a broad power to require information or documents
from any person. This
power currently exists in s 207A of the principal Act. The Bill proposes to
extend the existing power for the
purpose of exercising the chief
executive’s powers under s 26 with regard to issuing a warning in respect
of a product or banning
a product. We do not consider that this amendment
changes the search powers already in the principal Act which are regarded as
reasonable
and proportionate to the objectives of the principal Act.
- We
also note that cl 53 proposes to amend s 204 which creates powers for entry,
inspection, and seizure of information. Clause 53
extends the powers in s 204
for the purpose of monitoring the performance of a registered product
certification body and a registered
modular component manufacturer certification
body. We do not consider that this amendment changes the power already in the
principal
Act, which we previously assessed as being consistent with the Bill of
Rights Act.4
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 the right to be presumed innocent
until proved guilty according to
the law. This requires the prosecution to prove beyond reasonable doubt, that
the accused is guilty.
- Strict
liability offences give rise to a prima facie issue of inconsistency with s
25(c) because the accused is required to prove
a defence (on the balance of
probabilities) to avoid liability (in other criminal proceedings an accused need
merely raise a defence
in an effort to create reasonable doubt). This means
that, where the accused is unable to prove a defence, they could be convicted
even where reasonable doubt exists as to their guilt.
4 See Preliminary Report of the
Attorney-General under the New Zealand Bill of Rights Act 1990 on the Building
Bill (Ministry of Justice,
12 August 2003), paragraphs 11 and 18.
- Section
388 of the principal Act provides that all offences are strict liability
offences, except as otherwise provided. The following
new strict liability
offences are proposed by the Bill:
- cl 70
of the Bill proposes new ss 272G and 272H that relate to misrepresentations
under the product registration scheme;
- cl 71
of the Bill proposes new ss 272ZI and 272ZJ that relate to misrepresentations
under the modular component manufacturer scheme;
and
- cl
83 of the Bill that proposes new ss 362VB – VC, and s 362VF that relate to
building product information requirements, false
or misleading representations,
and compliance with notices to take corrective action. The new s 362VD provides
defences for offences
against s 362VB and s 362VC.
- In
the specific context of strict liability offences, considerations especially
relevant to the reasonableness of limits on s 25(c)
are the nature and context
of the conduct being regulated, the ability of the defendants to exonerate
themselves, and the penalty
levels.
- Overall,
we consider that the prime facie limits to the right under s 25(c) of the
Bill of Rights Act proposed by the Bill are justified in the circumstances. In
particular:
- strict
liability offences are considered more justifiable where they arise in relation
to activities that are regulated in the public
welfare and where people choose
to engage in that regulated activity. 5 The strict
liability offences created in the Bill arise in the context of the sale and
trade in building products. This industry is
clearly regulated in the public
interest – to ensure that building products are fit for the purposes for
which they are sold,
safe, and do not result in widespread economic loss;
- people
exercise choice in choosing to enter this regulated field and where they
misrepresent that they are part of it they undermine
the core function of the
scheme;
- the
matters of justification and excuse (the defences) are more likely to be in the
defendant’s knowledge. The Bill, in the
proposed new s 326VD, and in the
existing defences in the principal Act (s 388), enumerates several defences to
the strict liability
offences. These defences are open-ended in nature and more
likely to be in the defendant’s knowledge – e.g. the breach
was due
to the reasonable reliance on information supplied to the defendant by another
person, or the defendant took reasonable precautions
and exercised due diligence
to avoid the failure.
- the
penalties, while large in some instances (e.g. misrepresentation of status as
product certification body or in relation to product
certification can result in
a fine of up to $300,000 in the case of an individual and $1.500,000 in the case
of a body corporate),
are solely financial in nature. No terms of imprisonment
can be imposed. We also note that the parties to which the offence provisions
apply are commercial actors and body corporates engaged in a regulated
industry.
- Accordingly,
we have concluded that the proposed new offences referred to above are justified
under s 5 of the Bill of Rights Act.
5 Civil Aviation Authority v MacKenzie
[1983] NZLR 78; R v Wholesale Travel Group (1992) 84 DLR (4th) at
213.
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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