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Residential Property Managers Bill (Consistent) (Sections 14, 19, 21 and 25(c)) [2023] NZBORARp 32 (27 July 2023)
Last Updated: 30 September 2023
27 July 2023
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Residential
Property Managers Bill
Purpose
- We
have considered whether the Residential Property Managers 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 23500/6.8). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
Summary
- The
Bill establishes a new regulatory regime designed to improve the provision of
residential property management services in New
Zealand. The Bill raises a
number of limitations on rights and freedoms affirmed in the Bill of Rights Act,
specifically:
- 3.1. s 14
(freedom of expression);
- 3.2. s 19
(freedom from discrimination);
- 3.3. s 21
(freedom from unreasonable search and seizure);
- 3.4. s 25(c)
(right to be presumed innocent until proven guilty.
- 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
purpose of the Bill is to protect the interests of residential property owners
and tenants (including prospective tenants) by
creating a comprehensive
regulatory regime for residential property managers. The Bill will give effect
to this objective by -
- 5.1. establishing
minimum entry requirements for residential property managers;
- 5.2. ensuring
residential property managers meet professional standards of practice;
- 5.3. providing
accountability by establishing an independent, transparent, and effective
complaints and disciplinary process that
applies to residential property
managers and the delivery of residential property management services.
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 and in any form. The right has been interpreted as
including the right not
to be compelled to say certain things or to provide
certain information.1
- 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 s 5
inquiry asks whether
the objective of the provision is sufficiently important to
justify some limitation on the right or freedom; and if so, whether the
limitation is rationally connected and proportionate to that objective and
limits the right or freedom no more than reasonably necessary
to achieve that
objective.2
- Various
clauses in the Bill prima facie limit the freedom of expression by compelling
people to provide information, for example:
- 8.1. Clause 20
requires an applicant for a residential property management licence to publicly
notify the application in the manner
(if any) prescribed by the
regulations;
- 8.2. Clause 46
requires applicants and licensees of a residential property management licence
to notify the Registrar of their change
of circumstances, for example any change
in the information recorded in the register and any material change in the
residential property
management organisation; and
- 8.3. Clause 65
states that a Complaints Assessment Committee may require a residential property
manager licensee to appear before
it to make an explanation in relation to an
inquiry.
- We
consider that these provisions are rationally connected to the objectives that
are sufficiently important to justify some limit
on freedom of expression. The
clauses ensure that the public is aware of applications for residential property
management licences,
help hold property manager licensees to account for their
conduct and ensure that trust accounts are administered appropriately.
- 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.
Section 19 – freedom from discrimination
- Section
19 of the Bill of Rights Act concerns the right to be free from discrimination,
on the grounds contained in the Human Rights
Act 1993, which includes the ground
of ‘age’. Under s 21 of the Human Rights Act, ‘age’
means any age commencing
with the age of 16 years.
- The
key questions in assessing whether there is a limit on the right to freedom from
discrimination are:3
- See,
for example, Slaight Communications v Davidson 59 DLR (4th) 416;
Wooley v Maynard [1977] USSC 59; 430 US 705
(1977).
2 Hansen v R
[2007] NZSC 7, [2007] 3 NZLR 1.
- Ministry
of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 CA at [55]; Child
Poverty Action Group Inc v Attorney-General [2013] NZCA 402, [2013] 3 NZLR
729.
- 12.1. does the
legislation draw a distinction on one of the prohibited grounds of
discrimination under s 21 of the Human Rights Act?
and, if so,
- 12.2. does the
distinction involve a disadvantage to one or more classes of
individuals?
- A
distinction will arise if the legislation treats two comparable groups of people
differently based on one or more of the prohibited
grounds of discrimination.
Whether a disadvantage arises is a factual
determination.4
- Clause
17 requires that for an individual to be licensed as a residential property
manager, they must be at least 18 years old (amongst
other criteria). The Bill
treats 16 and 17year- olds differently from those 18 and over, and accordingly
prima facie gives rise to
a limit on the right to be free from discrimination
based on age. It is arguable that this difference in treatment may give rise
to
a disadvantage.
- Any
limit on the non-discrimination right may be justified in terms of section 5 of
the Bill of Rights Act, as outlined above. The
broad policy of the Bill is to
promote public confidence in the delivery of residential property management
services and protect
the interests of property owners and tenants (including
prospective tenants).
- We
consider that the age limit is intended to act as a proxy for maturity. Such
bright-line age restrictions are necessarily arbitrary
to a degree but can
provide a level of certainty and consistency where (as here) an individual
assessment of maturity is not practical.
The age limit set by the Bill is one
that has been generally adopted by society in a number of areas (such as voting
age and alcohol
consumption, for example) as an appropriate proxy for
maturity.
- To
the extent that clause 17 raises an issue of discrimination under section 19 of
the Bill of Rights Act, we consider that this is
justified under section 5.
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 an amalgam of values including
property, personal freedom,
privacy and dignity. The touchstone of this section
is the protection of reasonable expectations of privacy, although it does not
provide a general protection of personal privacy.5
- There
are two limbs to the s 21 right. First, the section 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.
- A
number of clauses require the provision of information or documents to the
Complaints Assessment Committee and the Real Estate Agents
Authority.6 The compelling of this information or
documents may constitute search powers for the purposes of section 21 of the
Bill of Rights
Act. As the Bill allows for the use of these powers in an
investigatory
- See,
for example McAlister v Air New Zealand [2009] NZSC 78, [2010] 1 NZLR 153
at [40] per Elias CJ, Blanchard and Wilson
JJ.
5 See, for example, Hamed
v R [2011] NZSC 101, [2012] 2 NZLR 305 at [161] per Blanchard J.
6 See cls 67, 68, 113, 116 and 120.
context, we consider that they constitute search powers that engage s 21 as
well as s 14 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 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.7 Rather,
for a statutory power to be consistent with s 21, engagement of the right must
not be unreasonable.
- We
consider the search powers in the Bill are reasonable and therefore consistent
with s 21 of the Bill of Rights Act. The availability
of such powers will
substantially assist the Complaints Assessment Committee and the Real Estate
Agents Authority to monitor and
enforce compliance with the Bill and thereby
ensure that its objectives are met. We also note that clause 68 is appropriately
limited
in scope and does not require provision of information or documents that
would be privileged in a court of law or where it would
be a breach of an
obligation of secrecy or non-disclosure imposed by an enactment (other than the
Bill, the Official Information
Act 1982, or the Privacy Act 2020).
Section 25 – Minimum standards of criminal
procedure
- 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.8 This means the state must affirmatively prove
the physical and mental elements of the offence and must also negative any
matter of
defence raised by the evidence.
- Strict
liability offences prima facie limit section 25(c) of the Bill of Rights Act.
This is because a strict liability offence may
be proved by a finding that
certain facts occurred (which could be the physical elements of the offence
and/or the existence of particular
circumstances) without proof of any mental
element. The accused is required to prove a defence (on the balance of
probabilities)
such as the absence of fault, or disprove a presumption, to avoid
liability.
- Strict
liability offences have been found more likely to be justifiable
where:
- 25.1. the
offences are regulatory in nature and apply to persons participating in a highly
regulated industry;
- 25.2. the
offence is directed at conduct having a tendency to endanger the public or a
section of the public;
- 25.3. the
defendant is in the best position to justify their apparent failure to comply
with the law, rather than requiring the Crown
to prove the opposite; and
- 25.4. the
penalty for the offence is proportionate to the importance of the Bill’s
objective.
7 Hamed v R [2011] NZSC 101; [2012] 2 NZLR
305 at [162] per Blanchard J.
8 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1
at [26] and [27] per Elias J.
- The
Bill contains numerous strict liability offences for contravention of provisions
under the Bill9, which give rise to a prima facie issue
of inconsistency with s 25(c).
- We
have concluded that the strict liability offences are justified for the
following reasons:
- 27.1. the
offences serve the important objective of promoting compliance with the Bill,
such as ensuring:
- 27.1.1. residential
property managers meet professional standards of practice;
- 27.1.2. compliance
with requirements to provide information;
- 27.1.3. people
comply with the Disciplinary Tribunal requirements; and
- 27.1.4. people
comply with people exercising powers or performing functions under the
Bill;
- 27.2. they are
regulatory in nature and apply to people participating in a highly regulated
industry; and
- 27.3. the
defendant will be best placed to justify their apparent failure to comply with
the strict liability offences and statutory
defences are
included.
- It
is a general principle that penalties in strict liability offences should
typically be at the lower end of the scale. The maximum
fines for the strict
liability offences in the Bill are
$40,000 for an individual and
$100,000 in any other case. We consider these fines are reasonable in the
context of a highly regulated
industry. The fines are likely to be commensurate
to affected entities’ and individuals’ ability to pay, and are
necessary
to contribute to the purposes of the offence regime (including
deterrence and punishment).
- We
consider that as the pecuniary offences in the Bill relate to regulatory matters
and result only in a monetary penalty and not
a criminal conviction, the limit
on the right can be justified under s 5 of the Bill of Rights Act.
- For
these reasons we consider that the offences in the Bill appear to be
justified.
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
9 See cls 12 – 16, 47, 68(4), 86(4), 98(1),
99(1)(f), and 123-125
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