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Natural and Built Environment Bill (Consistent) (Sections 14, 18, 19, 21 and 25(c)) [2022] NZBORARp 52 (4 November 2022)
Last Updated: 16 November 2022
4 November 2022
LEGAL ADVICE
LPA 01 01 24
Hon Andrew Little, Acting Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Natural and Built
Environment Bill
Purpose
- We
have considered whether the Natural and Built Environment 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 23532/16.88), received on 3
November 2022, which remains subject to further renumbering and quality
assurance. It updates our
advice of 26 October 2022, which was based on version
16.56 of the Bill. Given time constraints, this update does not reflect a
comprehensive
re-review of the Bill, but rather an assessment of the limited
number of substantive changes that we understand have been made since
version
16.56. We will provide you with further advice if the introduction version of
the Bill includes amendments that affect the
conclusions in this
advice.
Summary
- The
Bill replaces the Resource Management Act 1991 (RMA). The purpose of the Bill is
to enhance the quality of the environment and
achieve positive outcomes to
support the well- being of present and future generations.
- Due
to the scale and complexity of the matters regulated by the Bill, a number of
rights under the Bill of Rights Act are engaged.
- Our
advice discusses the consistency of the Bill with:
- section
14: freedom of expression;
- section
18 freedom of movement;
- section
19 freedom from discrimination in relation to several prohibited grounds of
discrimination, including race, ethnic origins,
disability, employment status
and age;
- section
21: freedom from unreasonable search and seizure;
- section
25(c): the right to be presumed innocent until proven guilty in relation to the
strict liability offences and infringement
offences in the Bill; and
- section
27: right to justice, including natural justice (section 27(1)) and the right to
bring civil proceedings against the Crown
(section 27(3)).
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. Our analysis
is set out
below.
The Bill
- The
Bill repeals and replaces the RMA. It works in tandem with the Spatial Planning
Bill (the SP Bill), which aims to provide a more
strategic and coordinated
approach to long- term regional planning, through requiring the development of
regional spatial strategies.
The new resource management system created by these
Bills has been designed to achieve five objectives:
- To
protect and, where necessary, restore the environment and its capacity to
provide for the wellbeing of present and future generations;
- To
better enable development within natural environmental limits including a
significant improvement in housing supply, affordability
and choice, and timely
provision of appropriate infrastructure including social infrastructure;
- To
give effect to the principles of Te Tiriti o Waitangi and provide greater
recognition of te ao Māori including mātauranga
Māori;
- To
better prepare for adapting to climate change and risks from natural hazards and
better mitigate the emissions;
- To
improve system efficiency and effectiveness and reduce complexity while ensuring
local input and involvement.
- The
Bill provides an integrated framework for regulating both environmental
management and land use planning. It introduces a concept
drawn from te ao
Māori, te Oranga o te Taiao, as a new intergenerational environmental test
that updates the RMA’s focus
on sustainable management. It enables use and
development that recognises and upholds te Oranga o te Taiao and occurs within
environmental
limits and targets. It requires both positive outcomes to be
achieved and adverse effects to be appropriately managed.
- The
purpose of the Bill is to recognise and uphold te Oranga o te
Taiao1 and enable use of the environment in a way that
supports the well-being of present generations without compromising the
well-being
of future generations.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms 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 to freedom of expression has also been
interpreted as including the right
not to be compelled to say certain things or
to provide certain information.2
1 Te Oranga o te Taiao is defined in
clause 7 to mean:
(a) the health of the natural environment; and
(b) the essential relationship between the health of the natural environment and
its capacity to sustain life; and
(c) the interconnectedness of all parts of the environment; and
(d) the intrinsic relationship between iwi and hapū and te
Taiao.
2 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705 (1977).
- There
are a vast number of provisions in the Bill which prima facie engage the
right to freedom of expression. Some of these provisions are prescriptive,
describing in detail what is required and by
whom, while others set out more
generic requirements that may be drawn upon further in any regulations (noting
secondary legislation
is also subject to the Bill of Rights Act).
- These
provisions can be broadly split into the following categories:
- Requirement
to provide particular information to authorities to support decision making:
Throughout the Bill, individuals may be required to provide additional or
particular information to the relevant authorities in
order for the proper
procedures to be followed and so decisions can be made, and resource consents
issued. For example, clause 294(1)
provides that a person may request the
consent authority to issue them a certificate of compliance. Sub-clause (2)
allows a consent
authority to require additional information from a person
making this request, should the authority consider the extra information
is
necessary before issuing the certificate.
- Mandated
information-sharing: Some provisions in the Bill require individuals like
applicants, appellants, farm operators, and landowners to share certain
information
with other parties. For example, clause 519(4) requires appellants
to ensure that a copy of the notice of an appeal to the Environment
Court is
served on specified persons.
- Requirement
to publish occurrence of non-compliance: Clause 731 states that a person who
has failed to comply with the provisions of the Bill in relation to a resource
consent may be
subject to an adverse publicity order that requires them to
publicise the non-compliance and associated information. This may include
any
impacts of the non-compliance on human health or the environment; and any
penalties or orders imposed.
- Where
a provision is found to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is demonstrably justified in terms of section 5 of that Act. The
section 5 inquiry asks
whether the objective of the provision is sufficiently
important to justify some limitation on the freedom of expression; and if
so,
whether the limitation is rationally connected and proportionate to that
objective and limits the freedom of expression no more
than reasonably necessary
to achieve that objective.3
- We
consider that any limits on the freedom of expression contained within the Bill
are justified under section 5 of the Bill of Rights
Act because:
- The
overall objective of the Bill, which is to recognise and uphold te Oranga o te
Taiao and enable beneficial use and development
of the environment, is
sufficiently important to justify some limitation on section 14;
- The
requirements imposed on both individuals and specific groups or bodies to
provide certain information in specific circumstances
are rationally connected
to this objective. Ensuring that relevant information is provided in the
prescribed manner to all necessary
parties is fundamental for the overall
function and efficiency of the regime;
3 Hansen v R [2007] NZSC
7, [2007] 3 NZLR 1.
- We
understand that the requirement to publicise non-compliance via an adverse
publicity order aims to encourage compliance with the
provisions of the Bill,
which also appears rationally connected with the objective of recognising and
upholding te Oranga o te Taiao;
and
- These
provisions impair section 14 no more than reasonably necessary, and are in due
proportion to the importance of the Bill’s
objective. We note in
particular that many of these provisions are broadly similar to existing
legislation and requirements on other
publicly owned entities and local
authorities, and that the majority of relevant provisions involve factual
information with limited
expressive value. A person on whom an adverse publicity
order has been served may appeal to the Environment Court against the
order.
- The
Bill also, in some instances, requires public notification, information-sharing,
record- keeping, and reporting from other entities
or persons (such as regional
planning committees, special tribunals, boards of inquiry or heritage protection
authorities) that have
specified roles or functions related to, or that
contribute in some way to, the objectives of the Bill. We note that the
requirements
for what type of information needs to be captured, notified,
written or shared is largely factual by nature and contains limited
expressive
value. They also impose limits no more than reasonably necessary for the regime
to operate efficiently. Accordingly, any
limits to section 14 for these entities
are justified under section 5 of the Bill of Rights Act.
Section 18 – Freedom of movement
- Section
18(1) of the Bill of Rights Act states that everyone lawfully in New Zealand has
the right to freedom of movement and residence
in New Zealand.
- Clause
613(1)(b) of the Bill appears to limit the right to freedom of movement under
the Bill of Rights Act. This provides that esplanade
strips or access strips may
be closed to the public by the local authority during periods of emergency or
public risk likely to cause
loss of life, injury, or serious damage to
property.
- We
consider that any limit that this provision places on freedom of movement is
justified, because:
- ensuring
public safety is an important objective;
- limiting
access to land during periods of emergency or public risk is rationally
connected to that objective; and appears to impair
section 18 no more than is
reasonably necessary and in due proportion to the importance of that
objective.
- For
completeness, we also note that clause 613(1)(a) enables these strips to be
closed to the public for the times and periods specified
in the instrument or
easement under Schedule 12.4 Any such instrument or
easement would need to be consistent with the Bill of Rights Act.
4 We understand that the landowner whose
land is being vested in the Crown to create the esplanade strip can negotiate
with the local
authority as to the circumstances under which access would be
restricted, in order to protect certain interests, such as proximity
to
livestock at certain sensitive times of the year such as lambing. This is an
existing process under the Resource Management Act
1991.
Section 19 – Freedom from discrimination
- Section
19(1) of the Bill of Rights Act affirms the right to freedom from discrimination
on the grounds set out in section 21 of the
Human Rights Act 1993.
- Discrimination
under section 19 of the Bill of Rights Act arises
where:5
- there
is differential treatment as between persons or groups in analogous or
comparable situations based on a prohibited ground of
discrimination; and
- that
treatment has a discriminatory impact (i.e., it imposes a material disadvantage
on the person or group differentiated against).
- The
differential treatment analysis takes a purposive and untechnical approach to
avoid artificially ruling out discrimination.6 Not all
differential treatment will be discriminatory.7 Once
differential treatment on prohibited grounds is identified, the question of
whether disadvantage arises is a factual
determination.8
Freedom from
discrimination on the basis of race or ethnic origins
- Race
and ethnic origins are prohibited grounds of discrimination under section 21 of
the Human Rights Act. We have considered whether
certain clauses in the Bill
could be seen to draw distinctions between groups of people in a manner that
amounts to discrimination
on the basis of race or ethnic origins. The following
are examples of such provisions.
Engagement and consultation
- Certain
provisions require that a public authority must consider engaging with, or
engage or consult with, certain Māori entities
at various stages in the
regulatory processes:
- Clause
656 – local authorities can enter into management agreements with certain
public authorities (including iwi authorities
and groups representing
hapū);
- Clause
679 – iwi authorities, groups representing hapū, local authorities or
regional planning committees may invite each
other to enter into a Mana
Whakahono ā Rohe agreement;
- Clause
53(c) – the national planning framework must enable Māori to be
involved in monitoring of environmental limits and
targets;
- Schedule
7 clause 11 – regional planning committees must initiate engagement
agreements with Māori entities;
- Clause
164 – a consent authority may recover consent engagement costs and pay
them to relevant Māori parties that incurred
the costs;
5 Ministry of Health v
Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 CA at [55].
6 Atkinson v Minister of Health [2010] HRRT 1
at [211] – [212]; Air New Zealand v McAlister [2009] NZSC 78,
[2010] 1 NZLR 153 at [51], per Tipping J; and Child Poverty Action Group v
Attorney-General [2008] NZHRRT 31 at [137].
7 Ministry of Health v Atkinson, above n 6,
at [75].
8 See for example, Child Poverty Action Group v
Attorney-General, above n 7c, at [179]; and McAlister v Air New
Zealand, above n 7b, at [40] per Elias CJ, Blanchard and Wilson JJ.
- Clause
783(5) – the local authorities must provide iwi authorities and groups
representing hapū within the region with
opportunities, in relation to the
state of environmental monitoring and the state of plan effectiveness
monitoring, to be involved
in the development of monitoring methods, policy, and
the actual monitoring work;
- Clause
818 – local authorities must develop a policy relating to Māori
participation;
- Clause
819 – each local authority must keep and maintain certain records for the
iwi and hapū and any groups that represent
hapū with interests in
their region or district; and the Crown must maintain and provide to each local
authority information
on iwi authorities and groups representing hapū in
that region or district;
- Clause
836(3) – Chief executives must engage with Māori when preparing or
updating the evaluation framework.
- These
provisions generally require that the relevant public entity must engage with or
provide for engagement with Māori (or
groups such as iwi authorities and
groups representing hapū). The provisions are either limited to only
requiring engagement
with Māori in those specified ways, or require
engagement with a list of groups/entities, of which Māori are one group.
The Bill does not require the relevant public entity to engage or consult with
any other ethnic groups. We are of the view that these
clauses distinguish and
grant differential treatment to Māori on these matters as there may be
other groups that have an interest
in these matters and are therefore in a
comparable situation.
- Nevertheless,
we do not consider these provisions give rise to discrimination because it does
not impose a material disadvantage on
a comparable group:
- Providing
for specific Māori participation, engagement and/or consultation recognises
a Māori interest in regulatory decisions
about natural resources and
recognises a particular quality of the subject-matter of the decision-making
(the natural environment)
in terms of its significance to Māori and the
Māori interest that has been recognised in relation to
it.9
- The
relevant provisions are not designed to provide specific advantage to
Māori, but rather achieve equity among New Zealand’s
population
groups. The previous regime this Bill replaces has disadvantaged Māori for
decades.10 Addressing inequity does not result in
disadvantage to those who are not currently disadvantaged.
- The
requirement to enable engagement with or engage with the specific Māori
groups on the specific issues identified does not
preclude other individuals or
groups from also engaging with the relevant public entity on the
issue.
- For
completeness, if discrimination could be seen to arise, we consider that this is
justifiable under section 5 of the Bill of Rights
Act:
9 The special interest of Māori in
the natural environment has been recognised by the courts (e.g. New Zealand
Māori Council v Attorney-General [2013] NZSC 6; [2013] 3 NZLR 31 (SC)) and Waitangi
Tribunal (e.g. in the Wai 2358 inquiry).
10 Waitangi Tribunal, The Stage 2 Report on the
National Freshwater and Geothermal Resources Claims
(Wai 2358, 2019) at 561.
- A key
objective of the Bill is to give effect to the principles of Te Tiriti o
Waitangi; provide greater recognition of te ao Māori;
and provide
Māori with increased opportunities to contribute to decision-making for the
planning and regulation of the natural
environment. This is a sufficiently
important objective.
- We
find that the provisions are rationally connected to these objectives, by
enabling public entities to facilitate engagement with
(or consider engaging
with) Māori in certain circumstances, including in the development of a
plan, when preparing the evaluation
framework, and in environmental
monitoring.
- As
we note above, these provisions do not preclude the public entities from
engaging with other groups or individuals. Instead, the
provisions simply
require engagement with (or considering engaging with) Māori as specified.
We consider that this restricts
the right to freedom from discrimination no more
than what is reasonably necessary.
- Policy
papers indicate that the RMA has failed to deliver on opportunities for
Māori and has created inequities. These provisions
address this inequity by
providing specific engagement opportunities for Māori. Given the
significance of this issue, any specific
provision addressing Māori appears
to be proportionate to the important objective of providing for better
engagement with Māori
in the planning and regulation of the natural
environment.
Mātauranga Māori
- Clause
666 requires the members of the National Māori Entity11
to collectively have knowledge of, and experience and capability in
relation to the principles of te Tiriti o Waitangi; and tikanga
Māori, te
reo Māori, and mātauranga Māori.
- Schedule
13 clause 6(1)(d) states that when the Environment Court sits for a proceeding
involving a question of tikanga Māori,
quorum requires at least 1 alternate
Environment Judge who is a Māori Land Court Judge or an acting Māori
Land Court Judge,
or includes at least 1 Environment Commissioner who has
knowledge and expertise in tikanga Māori, or receives advice on the
question from a pūkenga.
- Schedule
13 clause 24(2)(f) and (g) requires the Attorney-General to consider, when
appointing a person as an Environment Commissioner
or Deputy Environment
Commissioner, whether they have knowledge and experience in matters relating to
te Tiriti
o Waitangi and kaupapa Māori; and matters relating to
te ao Māori, tikanga Māori and mātauranga Māori.
- These
clauses could be interpreted as treating Māori differently if a Māori
person is more likely to have the required skills
and knowledge than a
non-Māori person. However, as these clauses only require (or consider
requiring) knowledge, experience
and expertise in tikanga Māori, te ao
Māori, te reo Māori, mātauranga Māori and/or the principles
of te
Tiriti on a person or collective group of persons, we do not consider that
these provisions differentiate between separate groups
on the basis of race or
ethnic origin.
- As
a result, we conclude that the right to freedom from discrimination affirmed
under section 19 of the Bill of Rights Act is not
engaged by these
provisions.
11 An independent statutory entity
established under clause 659 for the purpose of providing independent monitoring
of decisions taken
under the Bill or the Spatial Planning Bill (see clause
660).
Transfer of powers and functions
- Clause
650 provides that a local authority or regional planning committee may transfer
its functions, powers or duties to another
public authority, which includes a
local authority, a regional planning committee, an iwi authority, a group
representing hapū,
a statutory authority, a government department, a joint
committee, and a local board. Subclause (3) sets out certain criteria in
order
to be able to make the transfer, and subclause (4) provides that criteria in
subclause (3)(c) do not apply to the transfer
of power to an iwi authority or
group representing hapū.
- This
provision prima facie appears to treat Māori, or persons who
identify as Māori, differently to persons who are non-Māori or do not
identify
as Māori. This provision can be seen to grant Māori
differential treatment by reducing the requirements that must be satisfied
to
transfer a power to them, that otherwise apply to the transfer of powers to
other public authorities, making it “easier”
to transfer a power to
iwi authorities and groups representing hapū rather than other public
authorities.
- However,
we do not consider that there is any other comparable group that may be
materially disadvantaged. Iwi and hapū have
significant interest in the
natural environment which has been acknowledged by the
Crown.12
- This
is the basis for enabling powers to be transferred to iwi authorities and groups
representing hapū, in addition to transferring
powers to other public
authorities who have a role in the regulation of land and resources. However, we
understand that the removal
of the specific criteria in subclause (3)(c) for
transfers to iwi and hapū is to provide for equity in that process –
while satisfying those criteria for the other public authorities is no
particular barrier, existing provisions under the RMA have
posed a particular
obstacle to transferring powers to iwi and hapū. Accordingly, the removal
of these criteria achieve equity.
As noted earlier, addressing inequity does not
result in disadvantage to those who are not currently disadvantaged.
- As
a result, we consider that clause 650 does not limit the right to freedom from
discrimination under section 19 of the Bill of Rights
Act.
Freedom from discrimination on the basis of disability and
employment status
- Employment
status and disability are prohibited grounds of discrimination under section 21
of the Human Rights Act 1993. Employment
status is defined as being unemployed
or being a recipient of a benefit.
- The
Bill states that when a regional planning committee is preparing or changing a
natural and built environment plan (clause 108(e));
a consent authority is
considering a resource consent application (clause 223(8)); a board of inquiry
is considering a proposal (Schedule
6 clause 19(2)(c)); or the Independent
Hearing Panel is formulating its recommendations on a proposed plan (Schedule 7
clause 126(2)(c)),
the relevant authority must not have regard to any adverse
effect arising from the use of the land by:
- people
on low incomes; or
- people
with special housing needs; or
12 Affidavit of Simon William
English in opposition to application for judicial review, 7 November 2012 (filed
in
Pouakani Claims Trust v Attorney‐General,
CIV‐2012‐485‐2185).
- people
whose disabilities mean that they need support or supervision in their
housing.
- These
provisions may be seen to create a distinction on the grounds of disability; and
indirectly on the grounds of employment status,
given that this is likely to
correlate with low income. Since the relevant authority is prevented from
considering effects on land
arising from its use by the identified groups of
people, but not by others, this may result in differential treatment of these
groups.
- However,
we do not consider that these provisions give rise to discrimination. They
appear to be intended to enhance equity for people
on low incomes; people with
special housing needs; or people whose disabilities mean that they need housing
supervision or support.
As these groups are not in an analogous situation to
groups who do not need additional support, it appears unlikely that any other
groups would be disadvantaged by these measures. Addressing inequity does not
result in a disadvantage to those who are not affected
by the existing
inequities.
Freedom from discrimination on the basis of
age
- Age
is a prohibited ground of discrimination under section 21 of the Human Rights
Act 1993, under which it is defined as any age commencing
with the age of 16
years.
- Schedule
13 clause 10 sets out who is eligible to be an Environment Judge or alternate
Environment Judge. In order to be an Environment
Judge, a person must be, or be
eligible to be, a District Court Judge (see Schedule 13 clause 10(1)). An
alternate Environment Judge
must either be:
- a
District Court or Māori Land Court Judge;
- acting
in either of these roles; or
- a
retired Environment Judge under the age of 75 years and the Chief Environment
Court Judge certifies to the Attorney-General that
the appointment is necessary
for the proper conduct of the Environment Court.
- Schedule
13 clause 10(4)(c)(i) states that a person eligible for appointment as an
alternate Environment Judge under Schedule 13 clause
10(3)(b) must not be
appointed for a term that extends beyond the date on which the Judge reaches the
age of 75 years. Additionally,
District Court Judges and Māori Land Court
judges must retire at age 70.13
- The
existence of a mandatory retirement age (regardless of the age at which it was
fixed) is prima facie discrimination on the basis of age, contrary to
section 19 of the Bill of Rights Act.
- Setting
a mandatory limit, however, also has an important purpose: namely, the
preservation of judicial independence. The importance
of this purpose is
affirmed by the Bill of Rights Act section 27 right to natural justice.
- A
mandatory retirement age may be rationally connected to achieving this purpose,
as it forms part of a wider range of statutory controls
on judicial service
(such as fixed income and protection against removal from office) which, taken
together, instil security of tenure
and judicial independence.
13 The retirement ages for District Court
and Māori Land Court Judges are set out in section 28 District Court Act
2016 and section
12 Te Ture Whenua Māori Act 1993.
- The
age limits adopted in this Bill reflect a proportionate response. The Bill
reflects the age limit adopted for both District Court
Judges and acting
District Court Judges.14 An age limit of 70 years has
been adopted in the United Kingdom, Australia, and Ireland. The United Nations
General Assembly has also
affirmed the reasonableness of mandatory retirement
ages generally in GA Res 40/32, 29 November 1985 and GA Res 40/146, 13 December
1935: Basic Principles on the Independence of the Judiciary.
- Alternatives
(such as having no mandatory limit) would potentially provide greater security
of tenure but would have disadvantages
(such as potential diminution of
judges’ health). Similarly, having judicial appointments limited by term,
while potentially
avoiding prima facie age discrimination, would create
risks for judicial independence.
- We
therefore conclude that these age limits represent a justified limit on the
section 19 right to be free from discrimination.
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, property,
correspondence or otherwise. The right protects a number of values including
personal property, dignity,
and privacy.15
- There
are two limbs to the section 21 right. First, section 21 is applicable only in
respect of activities that constitute a “search
or seizure”.
Secondly it protects only against those searches or seizures that are
“unreasonable” in the circumstances.
- The
Bill includes a number of provisions that we consider to be powers of search, or
of search and seizure:
Search powers
- Clause
235(3) and (4) enables the consent authority to enter on land in specified
circumstances where a bond has been given in relation
to land use or subdivision
consent.
- Clause
753 enables the local authority or consent authority, without prior notice, to
enter any place that it considers likely to
be affected by an emergency, where
the authority has financial responsibility or jurisdiction over a resource or
area, to take action
to mitigate the harm.
- Clause
789 enables an enforcement officer to direct a person to provide certain
identifying information where there are reasonable
grounds to believe that an
obligation under or provision of the Bill is being or has been breached.
- Clause
792 enables a warrant to be issued authorising entry and search of any place or
vehicle where there are reasonable grounds
to believe anything is situated in
respect of which an offence has been or is suspected of having been committed;
will
14 Under the District Court Act 2016, a
Judge must retire at age 70 (section 28) and only a former Judge under the age
of 75 years is
eligible for appointment as an acting Judge (section 31(2)). An
acting Judge must not be appointed for a term that extends beyond
the date on
which the Judge reaches the age of 75 years (section 32(2)(a)).
15 See, for example, Hamed v R [2011] NZSC
101, [2012] 2 NZLR 305 at [161] per Blanchard J.
be evidence of an offence; or is intended to be used for an offence, where
the offence in each case is punishable by imprisonment.
Search and seizure powers
- Where
a person has failed to comply with an enforcement order, clause 701(2) enables
any person, with the consent of the Environment
Court, to enter upon any land or
enter any structure for the purposes of complying with the order on behalf of
the person, and to
sell or otherwise dispose of materials salvaged in
complying.
- Where
a person has failed to comply with an abatement notice relating to noise, clause
709(2) enables an enforcement officer, without
further notice, to enter the
place where the noise source is situated and (when accompanied by a constable)
seize and impound the
noise source.
- Where
a person has not complied with an excessive noise direction or a direction
cannot be given, clause 716 enables a constable (or
enforcement officer
accompanied by a constable) to enter a place without further notice; and seize
or remove the noisy item or make
it inoperable. A constable may use reasonable
force in exercising this power.
- Clause
790 provides an enforcement officer with power of entry for the purpose of
inspection to assess compliance, including a power
to take samples of certain
substances (such as water or soil) or suspected contaminants.
- Clause
791 provides an enforcement officer who has authorisation in writing with power
of entry, as well as the ability to carry out
inspections, surveys,
investigations, tests or measurements; and take samples of any water, air, soil,
or vegetation and to enter
or re-enter land.
Are the search and
seizure powers in the Bill reasonable?
- 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
section 5 of that Act. However, the Supreme Court has held that an unreasonable
search logically
cannot be demonstrably justified and therefore the inquiry does
not need to be undertaken.16 Rather, section 21 is
self-limiting in that the assessment to be undertaken is whether the search
power is reasonable. The reasonableness
of a search or seizure can be assessed
with reference to its purpose and the degree of intrusion on the values which
the right seeks
to protect.
- We
consider the search and seizure powers in the Bill are consistent with the
Bill’s purposes of recognising and upholding te
Oranga o te Taiao and
enabling use and development of the environment within environmental limits and
targets. The powers appear
reasonable for the purpose of ensuring compliance
with the provisions of the Bill. There are also several safeguards associated
with
the exercise of these powers:
16 Hansen v R [2007] NZSC 7, [2007]
3 NZLR 1 (SC) at [162] per Blanchard J.
- Under
clauses 701(2), 709(2) and 753, the person entering must be accompanied by a
constable if entering a dwellinghouse.17 The powers of
entry under clauses 235(3), 790(1), and 791(1)(c) exclude dwellinghouses, which
limits the intrusion on privacy.
- The
powers under clause 716(3) and (4) could be exercised only where a notice had
not been complied with or could not be given. Any
force exercised would need to
be reasonable in the circumstances.
- The
powers of entry under clauses 790 and 791 require authorisation in writing from
a specified authority and must be exercised at
a reasonable time. Under clause
790(6), an enforcement officer may not enter land without the permission of the
landowner if permission
to enter is required by any other Act. Under clause 791,
reasonable notice of the authorisation, purpose of entry, and how and when
entry
is to be made must be provided to the occupier.
- The
powers of entry under clause 792 may be used only if there are reasonable
grounds for believing an offence punishable by imprisonment
has been or is being
committed, or there is evidence of such; and are subject to the provisions of
Part 4 of the Search and Surveillance
Act 2012. Under clause 794, a warrant
under clause 792 may only be executed by a constable or by an enforcement
officer when accompanied
by a constable.
- Accordingly,
we consider that the search and seizure provisions of the Bill are reasonable,
and therefore consistent with section
21 of the Bill of Rights
Act.
Section 25(c) – Right to be presumed innocent until proven guilty
- Section
25(c) of the Bill of Rights Act affirms that anyone charged with an offence has
the right to be presumed innocent until proven
guilty according to the law. The
right to be presumed innocent requires that an individual must be proven guilty
beyond reasonable
doubt, and that the State must bear the burden of
proof.18
- On
the face of it, strict liability offences limit section 25(c) of the Bill of
Rights Act. This is because a strict liability offence
may be proved by finding
that certain facts occurred without proof of mens rea. The accused must
prove a defence (on the balance of probabilities), or disprove a presumption, in
order to avoid liability, whereas
in other criminal proceedings an accused must
merely raise a defence in an effort to create reasonable doubt.
- Strict
liability offences may nevertheless be consistent with the Bill of Rights Act if
the grounds for the offence are rationally
connected to a sufficiently important
objective; if the onus impairs the right or freedom no more than reasonably
necessary to achieve
the objective; and if it is otherwise in proportion to the
importance of the objective.19 Strict liability
offences have been found more likely to be justifiable where:
- the
offences are regulatory in nature and apply to persons participating in a highly
regulated industry;
- the
defendant will be in the best position to justify their apparent failure to
comply with the law, rather than requiring the Crown
to prove the opposite;
and
17 We understand that buildings
associated with marae would be captured within the existing definition of
‘dwellinghouse’
due to their residential use.
18 R v Wholesale Travel Group (1992) 84 DLR
(4th) 161, 188 citing R v Oakes [1986] 1 SCR 103.
19 See Hansen v R [2007] NZSC 7, [2007] 3
NZLR 1 (SC).
- the
penalty for the offence is at the lower end of the scale and proportionate to
the importance of the Bill’s objective.
Strict liability
offences in the Bill
- The
Bill contains a number of strict liability offences. Clause 760 of the Bill
contains two offences20 that are expressly strict
liability offences,21 with limited defences (the Bill
also preserves the common law defence of total absence of fault):
- Contravening
or permitting a contravention of duties and restrictions in relation to land,
subdivision, the coastal marine area, the
beds of certain rivers and lakes,
water, and discharges of contaminants; and
- Discharging
any harmful substance or contaminant or water in the coastal marine
area.22
- A
person who commits an offence against these clauses is liable on conviction in
the case of a natural person to imprisonment for
a term not exceeding 18 months
or a fine not exceeding $1,000,000. In the case of a person other than a natural
person, the maximum
is a penalty is a fine not exceeding $10,000,000. If the
offence is a continuing one, further fines apply at a daily rate.
- The
Bill contains a number of other offences that appear to be strict liability
offences. While it is not clear if these are strict
liability offences or not,
we have assumed that they are for the purposes of our analysis. These include a
number of offences that
are public welfare regulatory offences, namely
contravening or permitting a contravention of:
- an
enforcement order or a condition of a resource consent, an abatement notice, or
an enforceable undertaking;
- failing
to provide certain information to an enforcement officer, protection of
sensitive information, an excessive noise direction,
an abatement notice for
unreasonable noise and any order made by the Environment Court.
- The
offences contained in paragraph 62 a. above have the same penalties as above in
paragraph 61.
- The
offences contained in paragraph 62 b. above are punishable on conviction to a
fine not exceeding $10,000, and if the offence is
a continuing one, further
fines apply at a daily rate.
- Clause
760(2) makes it an offence to dump and incinerate waste or other matter, or
radioactive waste or other radioactive matter and
other waste in a coastal
marine area. This offence has the same penalties set out in paragraph
61.
Are the strict liability offences justifiable under section
5?
- We
consider these offences to be rationally connected to a very important
objective. These offences operate as part of a scheme to
recognise and uphold te
Oranga o te Taiao and enable the use and development of the environment in a way
that promotes outcomes for
the benefit of the environment.
20 See clauses 760(1)(a) and 760(3).
21 See clauses 762 and 763.
22 In breach of clause 24 of the Bill.
- We
have been advised that the spectrum of potential harms to the environment and
community that may arise from these offences is extremely
broad from minor to
extremely serious. The severe end of the spectrum includes serious threats to
public safety, up to and including
the risk of fatalities. The spectrum of
penalties is designed to reflect this, in order to have a sufficiently robust
specific and
general deterrent and denunciatory effect. The penalties available
in the Bill in relation to similar environmental offences in other
commonwealth
jurisdictions are in line with international comparators.
- It
is a general principle that strict liability offences are associated with
penalties at the lower end of the scale. The financial
penalties for strict
liability offences in the Bill are significantly higher than fines typically
associated with strict liability
offences. Nevertheless, we consider these fines
are reasonable in the context of protecting the environment and necessary to
contribute
to the purposes of the offence regime (including deterrence and
punishment). A court retains the discretion to impose a lower penalty
than the
maximum prescribed in the Bill.
- Although
the potential for imprisonment for a strict liability offence is highly unusual,
we consider that in this instance the severity
of the penalty is in proportion
to the significant irreparable environmental harm that could be caused by
contravention of the Bill.
As above, a court retains a discretion as to both the
type and extent of any penalty.
- The
potential for financial gain that an offender might obtain through unlawful
exploitation of resources is very significant. The
resultant harms fall
primarily on common resources which the community at large are dependent on
(including, but not limited to,
marine and freshwater environments, valuable
life supporting ecosystems, productive soil, the airsheds we breathe, and other
essential
common resources).
- Environmental
use and development is a highly regulated area, and individuals would be in a
better position to justify a contravention
of the Bill’s requirements than
a prosecuting agency would be to prove mens rea.
- While
finely balanced, we consider that these provisions impair the right to be
presumed innocent no more than reasonably necessary
and are in proportion to the
importance of the Bill’s objective. We conclude that they are a justified
limit on s 25(c) of
the Bill of Rights Act in this particular context.
- Clauses
760(5)(b) and (c) create apparent strict liability offences for, without
sufficient cause, not attending or refusing to cooperate
with the Environment
Court or contravening a summons or order; or contravening an instrument for the
creation of an esplanade strip
or easement for an access strip. These offences
are punishable on conviction by a maximum fine of $1,500. If these are strict
liability
offences, we consider the limit on s 25(c) is justifiable and
proportionate to the objectives of the Bill.
Infringement offences
- The
Bill contains regulation making powers that allow for the creation of
infringement offences.23
23 Currently, clauses 775 and clause 857
both enable regulations to be made relating to infringement offences. Maximum
infringement fees
are the same under both clauses.
- The
provision that empowers the making of these regulations, does not, in itself,
limit the right to be presumed innocent; and is
accordingly consistent with the
Bill of Rights Act. However, secondary legislation made under this empowering
provision may limit
the right.
- We
note for completeness that secondary legislation must be consistent with the
Bill of Rights Act, otherwise there is a risk it will
be ultra vires. We
also note that the empowering provision limits the penalty for an offence
to:
- $2,000,
in the case of a natural person;
- $4,000
in the case of a person other than a natural person;
- $100
per stock unit for each infringement offence that is differentiated on the basis
of the number of stock units, to a maximum fee
of –
- $2,000
for each infringement offence in the case of a natural person; and
- $4,000
for each infringement offence in the case of a person other than a natural
person.
Section 27 – Right to justice
- Section
27(1) of the Bill of Rights Act provides that every person has the right to the
observance of the principles of natural justice
by any tribunal or a public
authority which has the power to make a determination in respect of that
person’s rights, obligations,
or interests protected or recognised by law.
Section 27 is concerned with procedural fairness and what will be procedurally
fair
depends on the facts of each case. Natural justice includes the right to a
fair hearing.
- There
are a number of provisions where the right to justice is prima facie
engaged. These fall broadly into the following categories:
- A
power for decision-makers or decision-making bodies to impose limitations on how
submissions or evidence are given or restricting
who may be heard in certain
circumstances;24
- A
restriction on receiving late
submissions;25
- A
power for decision-makers or decision-making bodies to strike out submissions,
in whole or in part, in certain circumstances; and
- Restrictions
on making submissions and representation, and other prohibitions, where persons
are trade competitors.26
- The
objective of these provisions is to ensure the efficient and effective conduct
of proceedings, including to prevent the use of
litigation to oppose trade
competition. Decision-makers and members or representatives of decision-making
bodies will have to act
in a manner that is consistent with the Bill of Rights
Act when exercising public and
24 This includes the ability to strike out
submissions in certain situations – e.g., where the submission is
frivolous or vexatious,
or contains offensive language (Schedule 7 clauses 38,
89 and 117); limitations on who may be heard at hearings – e.g.,
limitations
where the Independent Hearings Panel considers there is likely to be
excessive repetition (Schedule 7 clause 111).
25 For example, Commissioners of Regional Planning
Committees or Independent Hearing Panels must not accept late submissions
(Schedule
7 clauses 56(3) and 113(5)).
26 Clauses 148-151.
statutory functions. As such, while section 27 is engaged, we consider any
limitation on the right is demonstrably justified in terms
of section 5 of the
Bill of Rights Act.
- The
Bill also contains provisions enabling decision-makers or decision-making bodies
to remove members or representatives.27 Such powers
must be exercised consistently with the Bill of Rights Act. Combined with the
desirability of flexible and responsive
processes, and the ability to judicially
review any such decision, we are satisfied that these provisions are not
inconsistent with
section 27(1) of the Bill of Rights Act.
- Section
27(3) provides that every person has the right to bring civil proceedings
against the Crown. We consider that section 27(3)
is engaged by provisions
restricting the ability to bring proceedings in certain circumstances or by
specified persons.
- The
Bill contains provisions conferring immunities on members of the Environment
Court and Independent Hearings Panels, Registrars,
and Judges for acts or
omissions done in good faith in performance of their functions or duties. These
provisions restrict the right
to bring civil proceedings against the Crown.
However, enabling these individuals and bodies to exercise their statutory
jurisdiction
in good faith without fear is an important social objective and an
immunity for good-faith actions is a proportionate means in giving
effect to it.
Therefore, we consider that any limitation is demonstrably justified in terms of
section 5 of the Bill of Rights Act.
- The
Bill also includes the ability for a judge to make an order restricting a person
from commencing or continuing proceedings in
the Environment Court where a Judge
considers two or more proceedings were totally without
merit.28 The restriction on commencing or continuing
Environment Court proceedings is not a complete bar. Such orders can be made for
a limited
time, and for no longer than five years and an individual subject to
such an order may apply for leave to bring proceedings.
- These
orders may prevent an individual from bringing proceedings against the Crown and
would therefore engage section 27(3). However,
the right of access to the courts
is fundamental, but not absolute.29 The objective of
such provisions is to protect litigants from having to respond to vexatious
proceedings, and to prevent unreasonable
use of judicial resources.
- Similar
provisions are contained in the Senior Courts Act 2016. In respect of those
provisions, the Court of Appeal has held that
an individual has a right under
section 27 to be notified that such an order is being considered and to make
submissions at a fairly
conducted hearing before any order is
made.30 The Environment Court will need to act in
accordance with natural justice principles when considering making an
order.
- We
therefore consider that any limitation is demonstrably justified in terms of
section 5 of the Bill of Rights Act.
27 For example, the Minister may remove a
convenor for just cause (Schedule 6 clause 10(6)); the Chief Environment Court
Judge may, at
any time for just cause, remove an Independent Hearings Panel
member by written notice to the member (Schedule 7 clause 100(2));
an appointing
body may remove or replace any of its representatives on the planning committee,
at any time, in accordance with its
appointment policy (Schedule 8 clause
14(3)).
28 Schedule 13 clause 94.
29 See Brogden v Attorney-General [2001] NZCA 208; (2001) NZAR
809 (CA) at [20].
30 Genge v Visiting Justice at Christchurch
Men’s Prison [2019] NZCA 583 (CA).
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
NZLII:
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