Chapter 6: Undue Trespass on Personal Rights and Liberties: SO 327(2)(b)

I Introduction

This ground seeks to enforce a balance between the interests of an individual or group affected by a regulation and the public benefit that that regulation seeks to achieve. Where the Committee considers that a regulation unreasonably impinges on a private right, the regulation may be found to be in breach of Standing Order 327(2)(b).

The Committee has established a three-step test for determining whether a regulation breaches Standing Order 327(2)(b). First, is there a right or liberty to be trespassed against? Secondly, has the regulation trespassed against that right or liberty? Thirdly, if so, is that trespass undue or unreasonable in the circumstances, balanced against the public interest in the making of the regulation? The following analysis of this ground is based on the three limbs of this test.

II Existence of Personal Right or Liberty

The Committee has not laid down a definitive test to determine whether a right or liberty exists for the purposes of this ground. Instead, it has “taken a reasonably liberal approach to what constitutes a right”.²⁰³ It has not limited its definition of rights to those protected by statutes such as the New Zealand Bill of Rights Act 1990, or those recognised by the common law.²⁰⁴ Where a right recognised by the law has been engaged, the Committee has not been prepared to extend the right’s scope beyond recognised bounds. For example, the Overseas Investment Amendment Regulations 2008 were the subject of a complaint relating to, amongst other things, the effect of the regulations on the price of shares in Auckland International Airport Limited. The Committee accepted that attempts by the government to prevent the purchase of a 40 percent share in the Airport by the Canadian Pension Plan Investment Board through the use of regulations had a negative impact on the price of shares in the Airport. However, the Committee took the view that a drop in share price resulting from legitimate regulatory intervention was something shareholders simply had to accept. It stated that while the rights of shareholders included the right to “enjoy the benefits of those shares and to sell the shares at their discretion”,²⁰⁵ it was not prepared to accept there was a right to a stable share price.

On some occasions, however, the Committee has been content to declare that a right exists without recourse to the law. For instance, staffing orders promulgated under the Education Act 1989 had the potential to make teachers redundant and/or lead to a loss of income.²⁰⁶ The Committee concluded that the orders “may well result in personal rights and liberties being unduly trespassed upon”.²⁰⁷ Thus, personal interests such as employment and income can potentially be considered rights or liberties capable of being trespassed on. Similarly, in its examination of the Biosecurity (Ruminant Protein) Regulations 1999, the Committee stated that people have a legitimate right to conduct a business, as well as a right not to have that business unduly restricted.²⁰⁸ Such rights or interests may not necessarily be enshrined in law, but are deemed to exist nonetheless.

On other occasions, the Committee has required a complainant who claims a right to establish that the right exists in law. One way of doing this is by establishing that the right is contained in an Act of Parliament. In 2014, the Committee rejected a potential complaint under this ground relating to the Arms (Military Style Semi-automatic Firearms–Pistol Grips) Order 2013 as the complainant was unable to prove that there was a statutory right to possess or own a firearm.²⁰⁹ Similarly, the Committee did not uphold a complaint regarding the Civil Aviation Charges Regulations (No 2) 1991 Amendment Regulations 2012, as it considered that participation in the aviation system under the Civil Aviation Act 1990 was a privilege, not a right.²¹⁰ On the other hand, in 1999 the Committee examined the Accident Insurance (Review Costs and Appeals) Regulations 1999.²¹¹ The Committee found that those making a claim for an injury had a right to seek an effective remedy for a poor decision by an insurer, as this right was specified in section 134(4) of the Accident Insurance Act 1998. This right was reinforced by the statutory bar that prevents an injured person from suing for personal injury.

The Committee’s examination of the Accident Insurance (Insurer’s Liability to Pay Costs of Treatment) Regulations 1999 involved similar issues, but resulted in a different finding.²¹² The regulations prescribed the amounts that an insurer had to pay for the costs of treatment for an injured worker. This meant that an injured worker would be required to pay the balance of the treatment costs where those costs exceeded the amounts payable by the insurance company. The complainants argued that workers had a right to receive the full cost of medical treatment resulting from an accident. It was argued that this right was sourced in the International Labour Organisation (ILO) Convention 17, which provided that injured workers should have the costs of treatment resulting from accidents paid for either by the employer or through accident insurance. Yet despite the ILO convention, the Committee concluded that as a matter of New Zealand law it could not be said that there existed a right to free medical care for injured workers. Ultimately, this was because the ILO convention was in conflict with New Zealand domestic law. The Accident Insurance Act 1998 specifically allowed regulations to be made which had the effect of requiring workers to contribute towards the costs of their treatment in certain cases.

The question of whether a treaty that is consistent with New Zealand domestic law can provide a source of rights capable of being trespassed upon has not been explicitly addressed by the Committee. However, in its report on the Citizenship Regulations 1978, the Committee cited two international Conventions relating to the rights of the child as part of its discussion on a child’s right to citizenship.²¹³

A further discussion of rights capable of being trespassed on was provided in the Committee’s report into a notice issued pursuant to the Fisheries Act 1996.²¹⁴ The notice added a number of new fish stocks to the Quota Management System (a statutory fisheries management system). One of the new stocks added was kina. Prior to the notice coming into effect, the complainant had a fishing permit that allowed him to catch 900 kilograms of kina per day. Under the QMS regime, this would drop to 343 kilograms per year. This was primarily because the complainant’s actual catch of kina during the qualifying years was limited – an outcome the complainant alleged was the result of misinformation from the Ministry of Fisheries. He argued that the effect of the drop in his allowable kina catch constituted an undue trespass on his rights and liberties. In response, the Ministry of Fisheries argued that the 900 kilogram daily catch limit did not constitute a “right”. Rather, it was a limit prescribed in the existing regulations that was subject to change depending on sustainability issues. The Ministry contrasted the permit limit with quota issued under the QMS, which it noted amounted to a transferable property right, issued in perpetuity. The Committee sided firmly with the Ministry, concluding that the complainant never had a right to catch 900 kilogram of kina per day. It expressed the view that the complainant’s opposition appeared to stem from government policy regarding the QMS, rather than with the constitutional propriety of the notice itself.

III Trespass to the Right or Liberty

The Committee’s investigation into the Citizenship Regulations 1978, Amendment No 6 established two requirements for establishing that a right or liberty has actually been trespassed on. As noted previously, the regulations required all applicants – including children – to pay the same set fee. Given that previously no such fee was charged for children’s applications, the regulations had increased the costs to families of applying for citizenship. The Committee noted that “this fact alone is insufficient to establish that the regulations give rise to an injury to children”.²¹⁵ Rather, the regulations must impact adversely on the right that has allegedly been trespassed on.

The second requirement was implicit in the Committee’s statement that the “level of the impact will determine whether the regulations constitute an injury”.²¹⁶ Thus, if a regulation adversely affects a right or liberty only in a minimal or nominal way, then there may have been no trespass at all (let alone an undue trespass). Whether this is so will depend on the nature of the regulation in question and its impact on the right that is claimed. In this instance, the Committee had evidence before it that the increased fees had meant that some families had significantly delayed their citizenship application process. The Committee concluded that the delay had had such a significant impact on a child’s right to citizenship that it did constitute a trespass to that right.

IV Undue Trespass

The third test is whether the trespass to the right or liberty is undue.

A Severity of Trespass

This may involve a straight-forward assessment of the severity of the trespass. In its investigation into the Citizenship Regulations 1978, Amendment No 6, the Committee noted that access to health or education facilities was not denied to children on the basis that they did not have citizenship.²¹⁷ Yet by not having citizenship, children could suffer mental distress by being denied the feeling of belonging, safety, and security that citizenship provided. As a result, the trespass to a child’s right to citizenship was considered undue.

When a trespass to a right protected by the New Zealand Bill of Rights Act 1990 is at issue, the Committee will not necessarily take the view that any statutory limitation of that right is an undue trespass. In its report on a complaint made regarding the New Zealand Teachers’ Council (Conduct) Rules 2004, the Committee was not prepared to find that the Regulations in question constituted an undue trespass to the right to freedom of expression contained in section 14 of the Bill of Rights Act.²¹⁸ The Regulations concerned created a presumption of privacy regarding Disciplinary Tribunal hearings, which undoubtedly trespassed on the media’s right to report on those hearings. The Committee found, however, that the restriction on that right was not inconsistent with other judicial bodies’ statutory abilities to restrict such reporting, for example through the imposition of name suppression. While the Committee recommended that there be a presumption towards open hearings, and that the current regulations were a prima facie breach of section 14 of the Bill of Rights Act, a mere breach of that right did not, in context, amount to an undue trespass under this Standing Order.

B Balancing rights: Cost-benefit Analysis

More often the Committee will undertake a balancing exercise to determine whether the trespass is undue. On the one hand is the public interest that is served by the regulations. On the other hand is the right or liberty of the individual or group that has been trespassed on. If the latter outweighs the former, the regulation is likely to be considered in breach of this Standing Order ground.

The Committee undertook a balancing exercise in its consideration of the Canterbury Earthquake (Building Act) Order 2011.²¹⁹ The Order allowed three Canterbury area councils to issue “extended section 124 notices” (commonly known as “red cards”) in the wake of the Canterbury Earthquakes, which allowed those councils to restrict citizens’ access to their own homes for safety reasons. The complainants alleged, and the Committee accepted, that such orders were a restriction on the right to occupy one’s own home. The Committee was not convinced, however, that the power to issue “red cards” unduly trespassed on that right. The Committee noted that the right was limited by subpart 6 of the Building Act 2004 for reasons relating to safety. The Committee stated that the Order was made in full knowledge that doing so would shift the balance between the right to occupy one’s own home and the public interest in preventing injury or death, towards the latter. The Committee was satisfied that the public interest in preventing injury or death was of sufficient importance to justify restricting the right to occupy one’s home, and so any trespass on that right was not undue.

This balancing exercise may take the form of a cost-benefit analysis. For example, in the Committee’s inquiry into fees charged under the Weights and Measures Regulations 1987, a chemist placed a scale outside his shop allowing members of the public to weigh themselves for a small fee.²²⁰ The Weights and Measures Regulations 1987 required the machine to be tested for accuracy at a cost of $2000. The Committee found the cost of testing the machine to be disproportionate to the benefits people gained from using the scales. Accordingly, the Committee recommended that the regulations be amended to either exclude scales of this nature, or to recognise overseas certificates of accuracy.

The Committee also undertook a cost-benefit analysis during its consideration of the Land Transport Rule 32012 – Vehicle Standards (Glazing).²²¹ The regulations significantly lowered the allowable limit of window tinting in most vehicles. In assessing the rule, the Committee had evidence before it that the regulation had led to a significant downturn in demand for window tinting, leading to some business closures and job losses. Also relevant were the interests of those vehicle owners who used window tinting. These factors were balanced against the need to reduce the risk of accidents involving vehicles with window tinting. This had particular relevance for vehicle occupants, cyclists, and pedestrians. Having considered the costs imposed by the Glazing Rule, the Committee concluded that the trespass was not undue given the potential improvements in safety that it would bring.

C Statutory Context

The overall aims and objectives of the empowering Act may also be an important factor in determining whether rights or liberties have been unduly trespassed on. The Gambling (Harm Prevention and Minimisation) Regulations 2004 were made pursuant to the Gambling Act 2004.²²² Amongst other things, the regulations required all gaming machines to include a feature that interrupts play at regular intervals informing users of the time spent playing the machine as well as the user’s total expenditure. The Australasian Machine Manufacturers Association and Skycity Entertainment Group contended that the regulations were in breach of Standing Order 327(2)(b). They argued that pop-ups infringed on their rights to conduct their businesses in an unduly restricted manner, that the cost of compliance would be excessive, and that the ‘gambling experience’ for users would be overly infringed. The Committee found no breach of this ground. It pointed to the Gambling Act 2004 and noted that it tightly regulated gambling activities, while emphasising the need to minimise harm from gambling. Any costs that the industry incurred had to be seen in light of these aims. It concluded that the regulations did not constitute an undue trespass.

D Public Benefit Unclear

When undertaking a cost-benefit analysis, the Committee will be less tolerant of a trespass to personal rights or liberties if the public benefit which the regulation seeks to achieve is unclear. Such a situation arose in the Committee’s investigation into the Accident Insurance (Insurer Returns) Regulations 1999.²²³ Among other things, the regulations required insurers to ascertain the ethnicity of people making claims and to supply that information to a regulator. Consequently, forms used by those making an insurance claim required the claimant to specify his or her ethnic background. The complainants argued that ethnicity is deeply personal and sensitive information and should only be disclosed by a claimant on a voluntary basis. It was further argued that the ethnicity information could be used for discriminatory purposes. The Department of Labour responded by stating that there were strong policy reasons for requiring information on ethnicity to be collected. In the Committee’s opinion this was not sufficient reason to justify collecting ethnicity information. The Committee stated that adequate consideration had not been given to the need for collecting ethnicity information, and that the exact purposes for which it is collected had not been adequately defined. In light of this failure, the Committee concluded that society’s interest in the protection of individual privacy outweighed the grounds put forward by the Department justifying the collection of the information. Accordingly, it concluded that the trespass was undue and recommended that the part of the regulations requiring the collection of ethnicity information be revoked.

E Unreasonable Obligation

If a regulation imposes an unreasonable obligation on an individual or group, it is more likely that the Committee will find a trespass on a right or liberty to be undue. For example, the Biosecurity (Ruminant Protein) Regulations 1999 were promulgated with the aim of preventing the introduction of certain animal diseases, one of which was bovine spongiform encephalopathy (commonly known as ‘mad-cow disease’).²²⁴ Under regulation 7, all operators were required to prepare a ruminant protein control programme and the Director- General of the Ministry of Agriculture and Fisheries had the authority to suspend or cancel an operator’s business for an indefinite period until satisfied that a satisfactory programme was in place. The Committee was of the view that regulation 7 failed to specify with enough detail the exact requirements of a programme. Because of this failure, the Committee found that public interest in feeling secure about New Zealand’s ability to manage the risk of mad cow disease did not outweigh the rights of operators not to have their lawful business unduly restricted. The potential for an undue trespass was exacerbated because the regulations did not specify clearly what operators must do to comply with their obligations.

F Lack of Criteria

Similar issues were raised when the Committee investigated a complaint regarding the Accident Compensation (Referred Treatments Costs) Regulations 1990.²²⁵ Under the regulations, payment by the Accident Compensation Corporation to the providers of acupuncture treatment was limited to members of the New Zealand Register of Acupuncturists (NZRA). This had the effect of excluding payments to members of the Chinese Acupuncture Association (NZCAA). The Corporation justified the regulations on the basis that it did not have confidence in the NZCAA. While stating that it was not the Committee’s role to decide which groups should receive treatment costs (since this is a matter of policy), the Committee did state that the process for determining who qualified for treatment costs should be fair. The problem in this case was that the Corporation had not provided standards of treatment by which applicants for treatment costs could be considered. The Committee considered it an undue trespass on the rights of NZCAA members that the corporation decided the NZCAA did not meet appropriate standards when the corporation had never specified a standard of competence in the first place.

---

203 Regulations Review Committee “Complaint Regarding the Overseas Investment Amendment Regulations 2008” [2008] AJHR I16P.

204 Regulations Review Committee “Complaint Regarding the New Zealand Teachers’ Council (Conduct) Rules 2004 (12 August 2013)” at 9.

205 Regulations Review Committee “Complaint Regarding the Overseas Investment Amendment Regulations 2008” [2008] AJHR I16P.

206 Regulations Review Committee “Complaint Relating to Staffing Orders, Promulgated under Section 91H of the Education Act 1989, Affecting Area, Primary, Intermediate, and Secondary Schools” [1996] AJHR I16F.

207 Regulations Review Committee “Complaint Relating to Staffing Orders, Promulgated under Section 91H of the Education Act 1989, Affecting Area, Primary, Intermediate, and Secondary Schools” [1996] AJHR I16F at 9.

208 Regulations Review Committee “Investigation into the Biosecurity (Ruminant Protein) Regulations 1999” [2000] AJHR I16A at 10.

209 Regulations Review Committee “Activities of the Regulations Review Committee in 2014 (8 August 2014)” at 25–26.

210 Regulations Review Committee “Complaint regarding the Civil Aviation Charges Regulations (No 2) 1991” Amendment Regulations 2012 (26 February 2014) at 12,

211 Regulations Review Committee “Complaints Relating to Accident Insurance (Reviews Costs and Appeals) Regulations 1999”, above n 171.

212 Regulations Review Committee “Complaints Relating to the Accident Insurance (Insurer’s Liability to Pay Costs of Treatment) Regulations 1999”, above n 169.

213 Regulations Review Committee “Investigation into the Citizenship Regulations 1978, Amendment No 6, Promulgated under the Citizenship Act 1977 and their Impact on Children of Families Granted to New Zealand on Humanitarian, Re-unification, or Refugee Grounds”, above n 191. The Committee used the terms ‘injury’ and ‘trespass’ interchangeably.

214 Regulations Review Committee “Complaint Regarding Fisheries (Declaration of New Stocks Subject to Quota Management System) Notice (No 2) 2002” [2003] AJHR I16C.

215 Regulations Review Committee “Investigation into the Citizenship Regulations 1978, Amendment No 6, Promulgated under the Citizenship Act 1977 and their Impact on Children of Families Granted to New Zealand on Humanitarian, Re-unification, or Refugee Grounds”, above n 191, at 5.

216 Regulations Review Committee “Investigation into the Citizenship Regulations 1978, Amendment No 6, Promulgated under the Citizenship Act 1977 and their Impact on Children of Families Granted to New Zealand on Humanitarian, Re-unification, or Refugee Grounds”, above n 191, at 5.

217 Regulations Review Committee “Investigation into the Citizenship Regulations 1978, Amendment No 6, Promulgated under the Citizenship Act 1977 and their Impact on Children of Families Granted to New Zealand on Humanitarian, Re-unification, or Refugee Grounds”, above n 191, at 8.

218 Regulations Review Committee “Complaint Regarding the New Zealand Teachers’ Council (Conduct) Rules 2004” (12 August 2013).

219 Regulations Review Committee “Complaint regarding the Canterbury Earthquake (Building Act) Order 2011” (24 April 2014) at 10–11.

220 Regulations Review Committee “Inquiry into Fees Charged under the Weights and Measures Regulations 1987” [1988] AJHR I16.

221 Regulations Review Committee “Complaint Relating to Land Transport Rule 32012 - Vehicle Standards (Glazing)”, above n 193.

222 Regulations Review Committee “Complaint Regarding Regulation 8 of the Gambling (Harm Prevention and Minimisation) Regulations 2004” [2005] AJHR I16L.

223 Regulations Review Committee “Complaint Relating to Accident Insurance (Insurer Returns) Regulations 1999” [1999] AJHR I16S.

224 Regulations Review Committee “Investigation into the Biosecurity (Ruminant Protein) Regulations 1999”, above n 208.

225 Regulations Review Committee “Complaint Relating to the Accident Compensation (Referred Treatments Costs) Regulations 1990” [1998] AJHR I16J.