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Regulatory Systems (Immigration and Workforce) Amendment Bill (Consistent) (Sections 14 and 25 (c)) [2024] NZBORARp 30 (2 May 2024)

Last Updated: 25 May 2024

2 May 2024

LEGAL ADVICE

LPA 01 01 24

Hon Judith Collins KC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Regulatory Systems (Immigration and Workforce) Amendment Bill

Purpose

1. We have considered whether the Regulatory Systems (Immigration and Workforce) 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).
2. 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 24109/14.0). We will provide you with further advice if the final version includes amendments that affect the conclusions in this advice.
3. 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) and s 25(c) (right to be presumed innocent until proven guilty). Our analysis is set out below.

The Bill

4. The Bill contains amendments to legislation administered by the Ministry of Business, Innovation, and Employment, to improve regulatory systems by ensuring they are effective and efficient and that they accord with best regulatory practice.
5. The amendments will achieve this purpose through:
   1. reducing unnecessary compliance burden for businesses and implementation costs for regulatory agencies,
   2. clarifying and updating statutory provisions to give effect to the purposes of the principal Acts and their provisions,
   100. addressing regulatory duplication, gaps, errors, and inconsistencies within and between different pieces of legislation, and
   4. responding to the changing environment.
6. To that effect, the Bill amends the following principal Acts and some associated secondary legislation:
   1. Electricity Act 1992;
   2. Employment Relations Act 2000;
   100. Gas Act 1992;
   4. Health and Safety at Work Act 2015;

5. Immigration Advisers Licensing Act 2007;
6. Mines Rescue Act 2013; and
7. Parental Leave and Employment Protection Act 1987.

Consistency of the Bill with the Bill of Rights Act Section 14 – Freedom of expression

7. 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

8. Clause 16 of the Bill prima facie engages the right to freedom of expression. It amends the definition of notifiable incident in section 24(1) of the Health and Safety at Work Act 2015. A notifiable incident is a notifiable event, which is required to be notified by the person conducting a business or undertaking, also known as a PCBU, to the regulator under section 56 of the Health and Safety at Work Act 2015. Clause 16 adds a new section 24(3) that a notifiable incident also means any unplanned or uncontrolled incident in relation to a workplace that could expose a worker or any other person to serious risk to their health and safety, and is declared by regulations to be a notifiable incident for the purposes of the Act. We note for completeness that any regulations must be consistent with the Bill of Rights Act, otherwise there is a risk that they will be ultra vires (go beyond the authority of the primary legislation).
9. Under s 5 of the Bill of Rights Act, a limit on a right may be justifiable where the limit serves an important objective, and where the limits on the right are rationally connected to achieving that objective and proportional to its importance.2
10. We consider that any limits on the freedom of expression created by this provision are justified under section 5 because:
    1. the overall objective of protecting workers and other persons against potential harm to their health, safety, and welfare is sufficiently important to justify some limit on the right;
    2. the restriction is rationally connected to this objective and provides for continuous improvements and progressively higher standards of work health and safety; and,
    100. the requirement is no greater than reasonably necessary and proportionate to the importance of the objective.

Section 25(c) – Right to be presumed innocent until proven guilty

11. 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
    

1 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] NZLR 1.

be presumed innocent requires that an individual must be proven guilty beyond reasonable doubt, and that the state must bear the burden of proof.3

12. Although infringement offences do not result in a criminal conviction,4 the Court of Appeal in Henderson v Director, Land Transport New Zealand held that the rights in section 24 and 25 of the Bill of Rights Act apply to minor offences dealt with under the infringement notice regime.5
13. Infringement offences prima facie 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 is required to prove a defence (on the balance of probabilities), or disprove a presumption, to avoid liability.
14. Strict liability offences have been found more likely to be justifiable where:
    1. the offences are regulatory in nature and apply to persons participating in a highly regulated industry;
    2. 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
    100. the penalty for the offence is proportionate to the importance of the Bill’s objective.
15. Clause 11 of the Bill replaces section 235A(a) of the Employment Relations Act 2000. Currently, section 235A(a) establishes that an infringement offence means a failure by an employer to comply with sections 64(1), 64(2), and 130(1) of the Act, and 81(2) of the Holidays Act 2003, all of which relate to employers’ obligations to retain individual employment information.
16. The new section 235A(a) sets a like obligation. Clause 11 adds a new infringement offence to the Act, namely for the failure by an employer to ensure an individual employment agreement of an employee is in writing. The Act provides that the maximum fine that can be imposed is $2,000 (section 235E and section 235EA). This is currently an offence under the Employment Relations (Infringement Offences) Regulations 2019, which the Bill revokes.
17. In our view, the new infringement offence exists within a highly regulated environment designed to promote good faith employment relationships, and it is rationally connected to that purpose. The defendant will be best placed to justify their apparent failure to comply.
18. For this reason, we consider that the limitation on the presumption of innocence is justified.
    

3 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [26] and [27] per Elias J.

4 Section 375(1)(a) of the Criminal Procedure Act 2011.

5 [2005] NZCA 367; [2006] NZAR 629 (CA).

Conclusion

19. 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