NZ Council for Civil Liberties

Submission: Valuers Bill

About the New Zealand Council for Civil Liberties

  1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.
  1. We wish to make an oral submission to the Committee.

Summary

  1. The Valuers Bill is legislation to re-enact in more modern and accessible form, the Valuers Act 1948.
  1. The Council’s concern with the bill is that it fails to modernise the legislation by bringing the Valuers Registration Board (VRB) within the scope of the Official Information Act 1982 (OIA). This is a significant omission by comparison with other professional regulation organisations, and fails to bring the VRB into line with modern standards for public authorities.
  1. A general principle of freedom of information laws around the world is that they apply to entities carrying out public functions. However, this bill is a muddle. While clause 98 of the bill makes the VRB subject to the Public Audit Act 2001, it does not require that the VRB is subject to the Ombudsmen Act 1975, the Official Information Act 1982, or the Public Records Act 2005.
  1. The Council strongly recommends that this gap in the governance and accountability arrangements for the VRB is rectified, and the bill amended accordingly.

Open Government

  1. It has long been internationally recognised that in a democracy people need access to information in order to participate in decision making and to hold those in power to account. Our right to information has international legal foundations in the International Covenant on Civil and Political Rights (the ICCPR), which New Zealand translated into domestic law through the New Zealand Bill of Rights Act 1990.1International Covenant on Civil and Political Rights, United Nations, 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights and the long title of the New Zealand Bill of Rights Act 1990. https://legislation.govt.nz/act/public/1990/0109/latest/whole.html Article 19 of the Covenant and section 14 of the Act guarantee the right of people to seek, receive, and impart information.
  1. The OIA therefore creates mechanisms to give practical effect to part of the state’s obligations under Article 19 of the Covenant. Other legislation, such as the Ombudsmen Act 1975, the Public Audit Act 2001 and the Public Records Act 2005 also provide accountability and access to information for public authorities.
  1. Section 12(1)(d) of the Public Service Act 2020 builds on our decades-long understanding of open government, and sets out that a principle of the public service is to ‘foster a culture of open government’. Section 12(2) of that Act states that public service chief executives ‘are responsible for upholding the principles when carrying out their responsibilities’ and for ‘ensuring that the agencies they lead or carry out some functions within also do so.’
  1. New Zealand’s government accepted the Open Government Partnership’s definition of ‘open government’ when it joined the organisation in 2013.2In joining the Open Government Partnership, New Zealand signed up to the Partnership’s Open Government Declaration. https://www.opengovpartnership.org/process/joining-ogp/open-government-declaration/ In addition, the Public Service Commission recently provided its own definition of ‘open government’:3Open Government Partnership, Public Service Commission, 2025. https://www.publicservice.govt.nz/system/open-government-partnership

The term ‘open government’ was initially used to convey the idea of government information transparency, aided by the use of technology, and enhanced government accountability. ‘Open government’ is now used to convey a broader concept, encompassing not only government transparency and accountability but also the high standards of governance and citizen participation in government that characterise a strong democracy.

  1. It is reasonable to assume that the requirements of section 12 of the Public Service Act actually have some meaning, and are not just performative window-dressing. Amongst other issues, it should be reasonable to assume that it means that whenever a department does policy work that will create a new organisation, or require an existing organisation to take on public functions, or modernise existing organisations, the department should be ensuring that the organisation in question should be made subject to the country’s core legislation for access to information, participation and accountability, such as those listed above.

Standards and criteria

  1. Building on the statutory foundations, there are two other key sources of guidance for considering whether a public authority should be within the scope of the OIA and other governance legislation: The Law Commission and the Legislation Design and Advisory Committee.

The Law Commission

  1. In 2012 the Law Commission published its report The Public’s Right to Know: Review of the Official Information Legislation.4The Public’s Right to Know: Review of the Official Information Legislation, NZLC R125, Law Commission, 25 July 2012. https://www.lawcom.govt.nz/our-work/official-information-act-1982-and-local-government-official-information-act-1987/tab/report
  1. The Commission examined the issue of which public authorities should be subject to the OIA in chapter 14. It suggested drawing on the Legislation Advisory Committee (LAC) guidelines, and added two other factors itself to create this list:
  • the extent of the agency’s dependence on central government funding;
  • the obligation of the agency to consult with the Minister on particular matters, respond to ministerial directions, or obtain ministerial approval;
  • the existence of ministerial control over appointments in contrast to, for example, elected membership representing relevant interest groups;
  • the existence of any government controls on finance, for example by the Auditor-General;
  • the public purpose of the agency.
  • the degree of public ownership of the agency;
  • the potential for decisions of the agency to impact on members of the public.

The Legislation Design and Advisory Committee

  1. The Legislation Design and Advisory Committee (LDAC) succeeded the LAC in 2015.5Establishment of Legislation Design and Advisory Committee, Attorney-General Chris Finlayson, 30 June 2015. https://www.beehive.govt.nz/release/establishment-legislation-design-and-advisory-committee It publishes the Legislation Guidelines, which are endorsed by Cabinet and are ‘designed as a tool to guide thinking by those involved in making legislation and to support transparency about the exercise of law-making power.’6‘When to use these guidelines’, Legislation Guidelines 2021 edition, Legislation Design Advisory Committee. https://ldac.org.nz/guidelines/legislation-guidelines-2021-edition/when-and-how-to-use-these-guidelines-2
  1. Part 5 of chapter 20 of the Legislation Guidelines states:

All public bodies should be subject to the Ombudsmen Act 1975, the Public Audit Act 2001, the Public Records Act 2005, and the Official Information Act 1982 (or the Local Government Official Information and Meetings Act 1987).

The Acts discussed in this section are key mechanisms by which government bodies are held accountable for their activities. They should apply to all new bodies and existing bodies unless there are compelling reasons for them not to.7‘Part 5: Will the public body be subject to certain key Acts that hold government bodies accountable?’, Legislation Guidelines 2021 edition, Legislation Design Advisory Committee. http://ldac.org.nz/guidelines/legislation-guidelines-2021-edition/new-powers-and-entities-2/chapter-20/ (emphasis in the original)

  1. There are therefore two clear sources of authoritative guidance that officials should follow when either creating a new public body or revising legislation governing an existing body. As LDAC puts it, the bodies should be subject to these good governance laws ‘unless there are compelling reasons for them not to.’

Standards and criteria

  1. When the Committee considers the VRB against the standards and criteria set out by the Law Commission and LDAC, there is a clear case for the VRB to be subject to the OIA and other good governance legislation. The table below sets out the Council’s analysis:
CriteriaMet by the VRB?
(a) the extent of the agency’s dependence on central government funding;Yes. It is funded by statutory fees collected under legislation, and by contributions from the Institute of Valuers, as directed by the Minister (clauses 91, 103).
(b) the obligation of the agency to consult with the Minister on particular matters, respond to ministerial directions, or obtain ministerial approval;Yes. Clause 101 stipulates that if there is a question about how much the Board must reimburse Land Information New Zealand or any other government agency, the Minister determines the amount and their decision is final.
(c) the existence of ministerial control over appointments in contrast to, for example, elected membership representing relevant interest groups;Yes. The Minister appoints 4 of the Board members and the Valuer-General is appointed under the Public Service Act 2020 (clauses 5 and 52).
(d) the existence of any government controls on finance, for example by the Auditor-General;Yes. Clause 98 states that The Board is a public entity as defined in section 4 of the Public Audit Act 2001, and that the Auditor-General is its auditor.
(e) the public purpose of the agency.Yes. The VRB performs public functions such as registering valuers (cl 15), and disciplining valuers (cl 35-45).
(f) the degree of public ownership of the agency;Yes. Clause 98 states the Board is a public entity.
(g) the potential for decisions of the agency to impact on members of the public.Yes. The VRB sets and upholds the professional standards of valuers of land. Valuers’ decisions impact members of the public.
  1. It is clear that the VRB meets every one of the Law Commission’s tests for whether a public body should be within the scope of the OIA.

Why was this change omitted?

  1. The LDAC Guidelines state that:

The Ministry of Justice, Te Kawa Mataaho, the department that administers the particular Act, and any agency with operational responsibilities under the particular Act (departments and agencies identified below) should be consulted when considering whether to apply the following Acts to a government body:

  1. Normally, information about whether these consultations with the relevant agencies were undertaken would be available via the Regulatory Impact Statement and/or the Departmental Disclosure Statement for the bill.
  1. However, because this is a ‘revision bill’, under subpart 3 of Part 3 of the Legislation Act 2019, no Departmental Disclosure Statement was required for the main bill.
  1. Similarly, under paragraph 30.1 of Cabinet Office Circular 24 (7), a Regulatory Impact Statement is not required for a revision bill.9CO (24) 7: Impact Analysis Requirements, Department of Prime Minister and Cabinet, 16 December 2024. https://www.dpmc.govt.nz/publications/co-24-7-impact-analysis-requirements
  1. Revision bills are not permitted under the Legislation Act 2019 to make substantive changes to the laws that they are updating. This is why the Attorney-General’s NZ Bill of Rights Act (NZBORA) assessment of the bill reports that it is not compliant with the non-discrimination requirements under section 19 of that Act; the bill reproduces the 1948 Act’s provision that to be a registered valuer the person must be at least 23 years old.10Report of the Attorney-General, under the New Zealand Bill of Rights Act 1990 on the Valuers Bill, presented to the House of Representatives pursuant to Section 7 of the New Zealand Bill of Rights Act 1990 and Standing Order 269 of the Standing Orders of the House of Representatives J.4.  https://bills.parliament.nz/v/4/7e0aa589-7823-4c5b-bf1a-08dd910308f6
  1. To correct this age discrimination, which the Attorney-General says is not justified under section 5 of the NZBORA, the Attorney-General has tabled a set of amendments to the bill, which make substantive changes to the 1948 Act.11Amendment Paper 286, Attorney-General, 12 May 2025. https://legislation.govt.nz/sop/government/2025/0286/latest/096be8ed81f3fc10.pdf
  1. There is a Departmental Disclosure Statement for the Amendment Paper, but while this indicates that Land Information New Zealand (LINZ) consulted the Ministry of Justice (MOJ) about the amendments that will increase the offences and penalties in the revised Act, no mention is made of consulting the MOJ about applying the LDAC Guidelines and modernising the law to bring the VRB within the scope of the OIA, the Ombudsmen Act and the Public Records Act.12Short-Form Departmental Disclosure Statement, LINZ, 2 April 2025. http://legislation.govt.nz/disclosure.aspx?type=ap&subtype=government&year=2025&no=286&
  1. This suggests to the Council that either LINZ failed to consider the LDAC Guidelines when drafting amendments to update the Valuers Bill, or they consulted ministers about the issue and were told not to follow the Guidelines. Unfortunately, the Council has not been able to find a Cabinet paper or advice to ministers on the bill on the websites of either LINZ or Crown Law.

Precedents for inclusion of the VRB in governance legislation

  1. If compliance with the LDAC Guidelines and the Law Commission’s recommendations are insufficient reason for adding the VRB to the OIA and other good governance legislation, then consistency with the approaches adopted for other similar organisations should guide the Committee.

Other regulators of professions

  1. Other bodies that regulate a profession that are included in both the OIA and the Ombudsmen Act are:
  • the Building Practitioners Board;
  • the Chartered Professional Engineers Council;
  • the New Zealand Registered Architects Board;
  • the Plumbers, Gasfitters, and Drainlayers Board;
  • the Private Security Personnel Licensing Authority;
  • the Social Workers Registration Board; and
  • the Teaching Council of Aotearoa New Zealand.
  1. These bodies are subject to the OIA by virtue of being listed in Part 2 of Schedule 1 of the Ombudsmen Act 1975. It also means that people can complain to the Ombudsman if they think an action or omission by one of these bodies has affected them in a personal capacity.

Recent example of an omission being corrected

  1. In April 2023, the Council made a submission on the Resale Right for Visual Artists Bill.13Submission: Resale Right for Visual Artists Bill, NZCCL, 27 April 2023. https://nzccl.org.nz/submission-resale-right-for-visual-artists-bill/ That bill was introduced to ensure New Zealand complies with its obligations under the free trade agreements reached with the United Kingdom and the European Union. The bill also required the Minister to appoint an agency to collect royalties on the resale of qualifying visual works of art, so they can be redistributed to the artists or their estates. The appointed agency also has the power to obtain information needed to perform its functions.
  1. Unfortunately, when preparing that bill the Ministry of Culture and Heritage also failed to comply with the LDAC Guidelines.
  1. The Council’s submission strongly recommended that the select committee remedy the failure to make the collection agency subject to the OIA, the Public Audit Act, the Ombudsmen Act and the Public Records Act.
  1. The Social Services and Community Select Committee agreed with the Council – and the Ombudsman who also submitted similar recommendations – and stated in its report on that bill:

We agree that, since the collection agency would be performing a public function, it should be subject to the same accountability mechanisms that apply to public sector bodies. We understand that similar private or non-governmental entities that carry out public functions, such as Netsafe or Agriculture New Zealand Limited, are subject to public accountability legislation such as the Official Information Act.

Consequently, we recommend amending clause 22 to provide that the collection agency would be subject to the Official Information Act, the Ombudsmen Act, and the Public Records Act 2005 in respect of its public functions under the bill. As the collection agency would be a non-governmental organisation, we do not consider it appropriate that all of its functions be subject to these Acts, just those that relate to administering the ARR scheme.

  1. The government did not object to the select committee’s recommendation. Consequently, section 22(6) of the Resale Right for Visual Artists Act 2023 now states:

(6)    The collection agency is subject to the Ombudsmen Act 1975, the Official Information Act 1982, and the Public Records Act 2005 in respect of functions that it performs under this Act.

  1. There are similar strong public interest arguments for openness and accountability requirements to apply to the Valuers Registration Board, so the older and more recent precedents should be followed here, as well as the LDAC Guidelines.

Recommendations

  1. For the reasons set out above, the Council strongly recommends that the Committee recommend that the bill is amended to:
  • add the Valuers Registration Board to part 2 of Schedule 1 of the Ombudsmen Act 1975;
  • specify that the Valuers Registration Board is subject to the Public Records Act 2005.
  1. This could either be done clearly by adding a clause along the lines of that in section 22(6) of the Resale Right for Visual Artists Act, probably after clause 69 of the bill, or it could be done in Schedule 4 of the bill as consequential amendments to other legislation.
  1. If, for some peculiar reason, the government decides that the registration and disciplinary processes of the valuers’ profession – unlike social workers, architects, teachers, builders, plumbers and security guards – does not need Ombudsman oversight, the Council recommends that the Valuers Registration Board is added to Schedule 1 of the Official Information Act. While it may be considered redundant to list a public body under both the Ombudsmen Act and the OIA, it is not unusual to do so, and the Law Commission recommended that ‘The schedules to the OIA and LGOIMA should be comprehensive and identify all agencies covered by the OIA and LGOIMA respectively.’14Recommendation R116, The Public’s Right to Know. See note 4 above.