You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2023 >>
[2023] NZBORARp 10
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Integrity Sport and Recreation Bill (Consistent) (Sections 14, 21) [2023] NZBORARp 10 (16 March 2023)
Last Updated: 29 March 2023
16 March 2023
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Integrity Sport and
Recreation Bill
Purpose
- We
have considered whether the Integrity Sport and Recreation 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 24872/15.0). 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 (right to freedom of
expression) and s 21 (right to be
secure against unreasonable search and
seizure). Our analysis is set out below.
The Bill
- The
Bill implements a single broad policy to strengthen and protect the integrity of
New Zealand’s sport and recreation sector
by establishing an independent
body and consolidating integrity functions within it.
- To
achieve these objectives, the Bill establishes a new independent Crown entity
called the Commission. The key functions of the Commission
will be
to:
- promote,
advise, and educate on integrity issues and threats to integrity within the
sport and physical recreation sector; and
- engage
with participants and the sport and physical recreation sector on integrity
issues; and
- develop
and issue integrity codes including to set out minimum standards of conduct;
and
- prescribe
policies and procedures for complaints management and dispute resolution;
and
- implement
the World Anti-Doping Code and facilitate compliance with New Zealand’s
international obligations with respect to
doping in sport; and
- investigate
suspected breaches of integrity codes and threats to integrity.
- The
Bill defines threats to integrity to include competition manipulation,
corruption and fraud, use of prohibited substances (doping),
abuse (including
abuse of
children),
bullying, violence, harassment, intimidation, and racism, and other forms of
discrimination.
- The
ambit of the Commission will include grassroots and community sport and physical
recreation as well as elite sport. Sport and
physical recreation organisations
will still be responsible for managing and resolving integrity issues in an
appropriate way. However,
the Commission will provide education, guidance, and
independent pathways for the resolution of complaints and integrity
matters.
- The
Bill will enable the Commission to make integrity codes through secondary
legislation that organisations in the sport and physical
recreation sector can
adopt. The codes are intended to be the cornerstone for the new integrity system
as they will set standards
of conduct and prescribe policies and procedures for
managing and resolving integrity issues.
- The
Commission will have powers to investigate suspected breaches of integrity
codes, and to investigate other threats to integrity
if it is in the public
interest to do so. The Commission will have the power to require information to
be provided if that information
cannot be obtained by consent. The Commission
will also be able to prescribe sanctions for breaches of an integrity code by an
individual
and, in some circumstances, convene a disciplinary panel to determine
whether an integrity code has been breached by a participant
and any sanctions
to be imposed. Integrity codes may also prescribe means of holding organisations
accountable for breaches of an
integrity code, including by requiring them to
take steps to change their policies or to pay compensation.
- The
Bill requires the Commission to carry out its functions with a strong focus on
the needs of participants, including Māori,
disabled people, and children
and young people. The Commission will be required to have te ao Māori
capability, including on
the board, and be responsive to tikanga Māori and
te Tiriti o Waitangi/the Treaty of Waitangi. In undertaking its functions,
it
will be required to reflect the needs of participants, including psychological,
cultural, language, and disability needs and the
needs of rainbow communities,
and promote the best interests of children and young
people.
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.1
- There
are provisions in the Bill that prima facie engage the right to freedom of
expression. These include:
- Clause
34 provides the Commission may require a specified person to provide, produce,
or furnish information or documents. This is
conditional on the Commission
believing, on reasonable grounds, that the information is relevant to an
investigation into a breach
of an integrity code or an investigation of a threat
to integrity; that the document cannot be obtained by consent; and that the
person holds or is likely to hold the information. ‘Specified
person’ includes, for example,
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705 (1977).
Sport and Recreation New Zealand, the New Zealand Olympic Committee, and a
national sporting or recreational organisation.
- Clause
35(2) provides that, where a person has failed to comply with a requirement
under clause 34, the court may make an order directing
a person to comply or any
other order the court considers appropriate. Clause 35(3) provides that the
court may require a person
to produce documents or provide other information to
the court for the purposes of determining an application under this section.
Clause 35(4) provides that the court may make an order under this section
subject to any conditions it considers appropriate. Failing
to comply with a
court order may result in contempt of court.
- A
limit on a right may nonetheless be consistent with the Bill of Rights Act if
the limit is justified under s 5 of that Act. The
s 5 inquiry asks:
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the
objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the
objective?2
14. We consider that any limits
on the freedom of expression contained within the Bill are justified under s 5
of the Bill of Rights
Act because:
- The
overall objective of the Bill, which is to promote, strengthen and protect the
integrity of sport and physical recreation in New
Zealand, is sufficiently
important to justify some limit on s 14. The objective of these provisions
appears to be to ensure compliance
with the regulatory regime, such as enabling
the Commission to properly investigate a breach of an integrity code or a threat
to
integrity. Being able to require persons to provide relevant information is
an important part of the regulatory regime.
- The
requirements imposed on people to provide certain information in specific
circumstances are rationally connected to this objective.
Ensuring that relevant
information is provided is important for achieving the Bill’s regulatory
objectives.
- The
requirements in the Bill limit freedom of expression no more than reasonably
necessary for the regime to operate efficiently and
are proportionate to the
importance of the Bill’s objectives. We note that:
- These
powers are limited to circumstances where there is an investigation into a
breach of an integrity code or a threat to integrity.
The Commission may only
investigate a breach or apparent breach of an integrity code where the relevant
activity, organisation and/or
participant is bound by it. The Commission may
only investigate a threat to integrity if the matter appears to be a threat to
integrity
and investigation is in the public interest.
2 Hansen v R [2007] NZSC
7, [2007] 3 NZLR 1.
- The
power in clause 34 is appropriately limited in that the Commission can only
request information from a suitably limited list of
persons; must believe on
reasonable grounds that the information cannot be obtained by consent; and must
believe on reasonable grounds
that the information is relevant to an
investigation. The Commission is required to report on the use of these powers
as part of
their annual report, which acts as an additional safeguard.
- Similarly,
the court’s powers in clause 35 are appropriately limited to requiring a
person to provide information for the purposes
of assessing an application for a
failure to comply with a requirement of clause 34.
15. Accordingly,
any limits to s 14 are justified under s 5 of the Bill of Rights Act. For
completeness, we have also considered these
clauses in terms of section 21 of
the Bill of Rights Act, which protects against unreasonable search and seizure.
For the reasons
given above, we do not consider it amounts to an unreasonable
search in terms of section 21 of the Bill of Rights Act.
- We
further note that clause 19 provides that the Commission has the power to make
one or more integrity codes. An integrity code may:
require an organisation that
adopts the integrity code or a participant, or other person, who has agreed to
be bound by the integrity
code to provide to the Commission information or
documents that the Commission considers is reasonably necessary for the purposes
of any investigation conducted by the Commission under section 31 (investigation
into a breach of an integrity code) or section 32
(investigation of a threat to
integrity); require an organisation that adopts the integrity code to provide to
the Commission information
or documents that the Commission considers reasonably
necessary for the purpose of monitoring implementation of the integrity code;
and require an organisation that adopts an integrity code to report to the
Commission issues of serious concern regarding integrity.
- We
further note that clause 23 provides that the Commission may make anti-doping
rules that are necessary and desirable to govern
the practice and procedure of
certain functions of the Commission. The Commission may make anti-doping rules
requiring an organisation
to which, or individual to whom, the anti-doping rules
apply to provide to the Commission information or documents that the Commission
considers reasonably necessary for the purposes of performing its function to
comply with and implement the anti-doping rules.
- These
empowering provisions do not, in and of themselves, limit rights under the Bill
of Rights Act; and are accordingly consistent
with the Bill of Rights Act.
However, secondary legislation made under these empowering provisions may limit
rights under the Bill
of Rights Act. 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 (go beyond the authority of the primary
legislation).
Section 21 - Right to be secure against unreasonable search or 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, or
correspondence or
otherwise. The right protects a number of values
including personal freedom, privacy, dignity, and
property.3
- 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 that Act. However, the Supreme Court has held that
logically, an unreasonable
search cannot be demonstrably justified and therefore
the inquiry does not need to be undertaken.4 Rather, in
order for a statutory power to be consistent with s 21, engagement of the right
must not be unreasonable.
- Whether
a search will be unreasonable turns on a number of factors, including the nature
of the place or object being searched, the
degree of intrusiveness into personal
privacy and the rationale of the search.5 The greater
the degree of intrusiveness, the greater the need for justification and
attendant safeguards.
Power to make anti-doping rules
- Clause
23 requires the Commission to make and have anti-doping rules to implement the
World Anti-Doping Code (defined in clause 4).
We understand that testing,
amongst other things, will be provided for under these anti-doping rules and
that athletes who are bound
by the anti-doping rules will be subject to testing
and can be required to provide a urine or blood sample at any time for the
purposes
of doping control. We understand that an individual will be bound by
the rules (and therefore subject to testing) if they participate
in a sport to
which the rules apply. We note that there are already rules in place that
provide for such matters (Sports Anti-Doping
Rules), and that rules made
pursuant to clause 23 are likely to be of a similar nature.
- These
empowering provisions do not, in and of themselves, limit rights under the Bill
of Rights Act; and are accordingly consistent
with the Bill of Rights Act.
However, we note that the rules will also have to be drafted in a manner that is
consistent with the
Bill of Rights Act, otherwise they may be open to challenge
for being ultra vires.6
- The
rules will be publicly available and are disallowable instruments that must be
presented to the House of Representatives. This
provides legislative
oversight.
- We
also note that the entitlement to conduct any search and the manner in which a
particular search is conducted will be subject to
scrutiny under s 21 of the
Bill of Rights Act. The power to make a rule conferring an entitlement to make a
search does not authorise
searches that would be unreasonable and thus, infringe
protected rights.7 Therefore, testing and monitoring
will need to be undertaken in a manner that is compliant with s 21.
3 See, for example, Hamed v R
[2011] NZSC 101, [2012] 2 NZLR 305 at [161] per Blanchard J.
4 Ibid at [162] per Blanchard J.
5 Hamed v R [2011] NZSC 101, [2012] 2 NZLR
305 at [172] per Blanchard J.
6 Drew v Attorney General [2001] NZCA 207; [2002] 1 NZLR 58
(CA).
7 Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR
774.
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:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2023/10.html