Minimum Wage (Abolition of Age Discrimination) Amendment Bill

9 February 2006

Attorney-General

1. We have considered the Minimum Wage (Abolition of Age Discrimination) Amendment Bill (the "Bill") for consistency with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights Act").

2. The Bill was introduced to the House of Representatives on Thursday, 8 December 2005 in the name of Sue Bradford MP. We understand the Bill may receive its First Reading on the next Members' Day which is scheduled for 22 February 2006.

3. The Bill seeks to:

4. We have concluded that the Bill appears to be consistent with the Bill of Rights Act.

Statement on assumption underlying the Bill

5. Although the Bill appears consistent with the Bill of Rights Act, we consider it necessary to comment on the assumptions underlying the Bill.

6. The explanatory note states that the Bill seeks to remove the ability of the Governor-General to discriminate on the ground of age when making Minimum Wage Orders under s 4(1) of the principal Act. However, it is our view that the principal Act does not authorise the Governor-General to make orders that discriminate in a way that is prohibited by the Bill of Rights Act or the Human Rights Act.

7. Section 6 of the Bill of Rights Act requires that wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights Act, that meaning must be preferred to any other meaning. Therefore, s 4(1) of the principal Act would be interpreted as only authorising the making of orders that are consistent with the Bill of Rights Act

8. It follows that any orders made under the principal Act that are inconsistent with the Bill of Rights Act may be deemed ultra vires . The New Zealand Court of Appeal in Drew v Attorney-General [2002] 1 NZLR 58 held that regulations that were inconsistent with the Bill of Rights Act were ultra vires and invalid because the empowering statute did not explicitly authorise the making of regulations that are inconsistent with the Bill of Rights Act.

9. Based on this analysis the Bill appears superfluous. However, as noted above, the repeal of the Minimum Wage Order 2005 does not in itself raise issues of inconsistency with the Bill of Rights Act.

10. Further, we note a minor drafting error in the Schedule. The consequential amendments to regulation 2 (sic) of the Minimum Wage Order 2005 should refer to regulation 3 (sic) of that Order as regulation 3 (sic) contains the definitions of "adult worker" and "youth worker".

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Minimum Wage (Abolition of Age Discrimination) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.