Tan v Auckland Council
[2015] NZHC 3299
•18 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-323 [2015] NZHC 3299
BETWEEN CHIN KEON (DANIEL) TAN
Appellant
AND
AUCKLAND COUNCIL Respondent
Hearing: 30 November 2015 Counsel:
S C Price and S A Jammes for Appellant
T Hu and S P Symon for RespondentJudgment:
18 December 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 18 December 2015 at 11:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Minter Ellison Rudd Watts (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
TAN v AUCKLAND COUNCIL [2015] NZHC 3299 [18 December 2015]
Introduction
[1] The appellant, Mr Tan, has been charged by Auckland Council (“the Council”) with one charge of carrying out building work without a building consent contrary to s 40 of the Building Act 2004 (“BA04”).
[2] Mr Tan is the project manager of the property being built. He argues that he cannot be charged under s 40 as he did not “carry out” any building work. In other words, he did not physically do any building work.
[3] The parties sought a pre-trial determination from the District Court on the interpretation of “carry out” in s 40. Judge Thorburn ruled that it includes the supervision and instruction of people who do the physical building work and held that the charge against Mr Tan was good.1 Mr Tan appeals that decision.
Facts
[4] Mr Tan is employed by Alpha Laboratories (NZ) Ltd (“Alpha”) to manage the expansion of a block of units in East Tamaki for use in a food processing business (“the property”).
[5] On 7 July 2014, an officer from the Auckland Council’s building compliance team visited the property. The officer observed that three of the four units on the property had been consolidated into one and there was a large air-conditioning system on the roof. Steel structures to support and brace the air-conditioning system had been installed as well as draining, plumbing and associated fixtures and pipe- work. In addition, part of the connecting fire-rated wall and the connecting fire-rated stud wall that separated the units had been removed. Internal partitioning had been installed and the interior walls had been clad with thermal and fire retardant panels.
[6] All of this building work required building consent. The Council had not received any application for building consent.
1 Auckland Council v Tan [2015] NZDC 18189.
[7] Mr Tan did not physically do any of the building work. His involvement was limited to instructing and supervising the actual builders.
[8] Mr Tan admitted knowing that the project needed building consent, but he had caused the work to be done to avoid delay.
The interpretation issue
[9] Section 40 provides:
40Buildings not to be constructed, altered, demolished, or removed without consent
(1) A person must not carry out any building work except in accordance with a building consent.
(2) A person commits an offence if the person fails to comply with this section.
(3) A person who commits an offence under this section is liable on conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
[10] The term “carry out” is not defined in the BA04.
[11] I understand the issue to be:
Is the term “carry out any building work” in s 40 of the BA04 limited to the physical carrying out of building work or does it include the supervision or instruction of those who physically carry out building work?
Judge Thorburn’s decision
[12] Judge Thorburn made a number of observations about the BA04:
(a) The predecessor Act (the Building Act 1991) created the offence of liability for unauthorised building work when a person “does any building work or permits any other person to do any building work”.2
The wording was changed in s 40 of the BA04.3
2 Building Act 1991, s 80(1)(a).
3 Auckland Council v Tan, above n 1, at [7].
(b)The main impetus for the review of the 1991 Act was the leaky house crisis. The BA04 introduced requirements for consents, the establishment of a licensing regime for building practitioners, and the setting of performance standards for construction.4
(c) Part 4 of the BA04 creates specific provisions for building practitioners and those engaged in the “carrying out of and supervising of” building projects involving “restricted building work”. The part makes provision for proper licensing of all practitioners engaged in projects of the restricted nature including supervisors,
designers and others apart from the builder.5
(d)The section under which the defendant is prosecuted falls in Part 2 of the BA04, which can be distinguished from Part 4. Part 2 applies to any building project undertaken by any person, licensed or otherwise, and is to be regarded as being of general and broad application when compared to Part 4.6
[13] After setting out the arguments of counsel and the principles of statutory interpretation, the Judge held:
(a) Section 40 relates to consent and authorisation. It is not to do with any specifically identified role within a building project or building work. Because nobody should be engaged in work that is unauthorised, the provision relates to any person.7
(b) It is unclear why the wider wording in the Building Act 1991 (that is,
“does any building work or permits any other person to do any
building work”) was not imported into the BA04.8
4 At [8].
5 Above.
6 At [9].
7 At [13].
8 Above.
(c) In any building project there will be chains of command and authority and at the bottom of that hierarchy, both in terms of authority and remuneration, are those “wielding the hammers and shovels”. If a project was being undertaken without consent and thus unauthorised it would be nonsensical and savagely unfair on those persons to expose
them, and not those who supervise or instruct them, to prosecution.9
(d)An owner who has commissioned building work, who has a statutory obligation to take responsibility for obtaining the consent, who knows the work is being undertaken without consent, and who is paying for the work to be done, would, on the narrow interpretation, not be culpable on the basis that he or she did not actually strike a nail or
turn a sod.10
(e) Accordingly, the term “carry out” in s 40(1) of the BA04 must be interpreted to include any person who is engaged in building work and development at a level or in a role that provides a meaningful contribution to making the building work happen. This means that a building supervisor would clearly be one who was carrying out the
work.11
(f) The charge against Mr Tan has been properly laid.12
Leave to appeal
[14] Section 296 of the Criminal Procedure Act 2011 provides, inter alia, that if a person has been charged with an offence, he or she may appeal on a question of law against a ruling made by a trial Court before or after the determination of the charge with the leave of the first appeal Court.
[15] Counsel did not realise that Mr Tan’s appeal can only be heard with the leave
of this Court and failed to make submissions on this point. A grant of leave was not
9 At [14].
10 At [15].
11 At [17].
12 At [18].
opposed by the Council. It is appropriate, in my view, that it be granted. That is because the legal question raised by this appeal is potentially determinative of the outcome of the case against the appellant. I grant leave accordingly.
Approach to appeal
[16] This is a general appeal. I must form my own view on the merits while giving due weight to the views of the District Court Judge. So, if I reach a different conclusion to that of Judge Thorburn, I will intervene and allow the appeal.13
The application to adduce fresh evidence
[17] I deal first with the Council’s application to adduce fresh evidence. The evidence is a document that sets out advice from the Department of Building and Housing as received by the Select Committee on the Building Amendment Act 2007 (“the advice document”).
[18] The Building Amendment Act 2007 initially included an amendment to s 40:14
Clause 11 amends section 40 of the Act, which relates to building consent requirements for building work. The amendment substitutes new section
40(1), and extends the offence set out in section 40 to engaging or permitting another person to carry out building work except in accordance with a building consent. This brings the offence into line with the former
corresponding offence in the Building Act 1991.
[19] Clause 11 was struck out by a majority of the Select Committee.15 The Select Committee did not provide any reason for doing this in its report. Nor is there any reference in Hansard as to why this was. The significance of the advice document is that, in the Council’s submission, it sheds light on the Select Committee’s decision not to amend the words of s 40 of the BA04 as suggested by clause 11. Essentially, the advice to the Select Committee was that the clause 11 amendment was unnecessary because the “carry out” wording was wide enough to include all those
involving in building work.
13 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
14 Building Amendment Bill 2007 128–1 at 11.
15 Building Amendment Bill 2007 128–2, as reported from the Social Services Committee at 8.
[20] The principles for the admission of fresh evidence were set out by the Privy Council in Bain v R.16 There are two threshold conditions that must be met: the evidence must be of sufficient freshness and sufficient credibility. The Court must then be satisfied that it is in the interests of justice that the evidence be admitted.
[21] Mr Price for Mr Tan opposes the application to adduce fresh evidence. He submits that the admissibility criteria are not met:
(a) The advice document does not constitute “evidence”. At best, it is
inadmissible opinion evidence.
(b) The advice document could have been obtained earlier.
(c) The Council is seeking to make something of a submission provided to the Select Committee. While reference to Hansard or Select Committee reports could assist in understanding the purpose and interpretation of the provision, a submitter’s report to the Select Committee cannot assist the Court.
[22] I disagree with Mr Price’s submissions for the following reasons:
(a) The evidence is sufficiently fresh. The Council requested the advice document under the Official Information Act 1982 prior to the District Court hearing. The information was not received until after the District Court hearing took place.
(b)The evidence is sufficiently credible. It is documentary evidence, obtained through an official channel, by government employees in the course of their employment duties.
(c) It is in the interests of justice for the evidence to be admitted. The question of law on appeal concerns a matter of public interest. The
16 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
evidence assists in determining how the legislature intended s 40 to be interpreted.
(d)The Courts have previously allowed the consideration of submissions made to a Select Committee when considering the legislative history of an enactment and how a particular provision should be interpreted.17 I see no practical difference between the advice given by a government department to a Select Committee and oral submissions provided to a Select Committee.
[23] The application to admit the advice document as evidence is granted.
Mr Tan’s argument
[24] I turn now to set out the basis upon which Mr Price argues that Judge
Thorburn erred in interpreting “carry out”. Mr Price submits:
(a) The issue of fairness is irrelevant to the interpretation of a statue. The focus must be on the clear words used.
(b)The Judge failed to have due regard to s 386 of BA04, which makes the principal liable for the acts of agents.
(c) The Judge failed to take into account the principle of lenity, which provides that any ambiguity in criminal statutes is to be decided in the defendant’s favour.
(d)The Licensed Building Practitioner regime in the BA04 explicitly provides for liability in a supervisory capacity. The lack of express reference to supervision in s 40 suggests that Parliament intended to
omit supervision from the scope of s 40.
17 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425 at [9] and [75]; Accident Compensation Corporation v D [2008] NZCA 576 at [32]; Brown v Doherty Ltd v Whangarei County Council [1990] 2 NZLR 63 (HC) at 67; Wells v Police [1987] 2 NZLR 560 (HC) at 569; KeyBank National Association v The Ship “Blaze” [2007] 2 NZLR 271 (HC) at [37].
(e) A narrow interpretation of the term “carry out” is consistent with the fact that the offence of permitting unauthorised building work to be carried out in the Building Act 1991 was not carried over to s 40 of the BA04.
(f) To extend the scope of s 40 to cover supervisory management activities would make the offence provision uncertain.
Overview of discussion
[25] I think it is helpful at this point to provide an overview of my discussion of the interpretation issue:
(a) First, I will consider the ordinary meaning of the term “carry out”.
(b) Second, I will look to the purpose of the BA04.
(c) Third, I will survey the other provisions of the BA04 in order to ascertain whether the context of the Act favours one interpretation over the other.
(d)Fourth, I will review the external statutory context, including the legislative history of s 40 and whether there is a need to achieve consistency with the Resource Management Act 1991.
(e) Fifth, I will consider whether either interpretation will result in absurd consequences.
(f) Finally, I consider the principle of lenity and its relevance to the present interpretation issue.
Ordinary meaning
[26] Section 5(1) of the Interpretation Act 1999 provides:
The meaning of an enactment must be ascertained from its text and in the light of its purpose.
[27] Although the purposive approach to interpretation prevails in the Courts today, the actual words “remain the most important single factor in statutory interpretation, for it is the true interpretation of those words that one is seeking”.18
[28] The Shorter Oxford Dictionary defines “carry out” as: “perform, conduct to completion, put into practice.”19 Giving directions to commence building work and supervising building work would constitute conducting to completion or putting into practice that work. So, the ordinary meaning of the phrase “carry out” is wide enough to encompass acts of supervision or instruction.
[29] But ordinary meaning is of little assistance in the absence of a consideration
of the statute’s purpose.
Purpose
Principles
[30] The purposive approach to interpretation under s 5 of the Interpretation Act
1999 requires me to apply the following principles:
(a) If words have two or more possible meanings, they should be given the one that best accords with the purpose of the legislation.20
(b)A strained interpretation may be put on words if the purpose of the provision requires it, but only if that strained interpretation is one that
the words can legitimately bear.21
18 Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington
2015) at 221.
19 Shorter Oxford Dictionary (6th ed) at 353.
20 Westpac Banking Corporation v Commissioner of Inland Revenue [2011] NZSC 36, [2011] 2
NZLR 726 at [32].
21 See, for example, R v Clayton [1973] 2 NZLR 211 (CA) in which the Court held that a disqualified person in the passenger seat of a car who helps to steer the car is “driving” it because that interpretation best fulfilled the purposes of the provision prohibiting driving while disqualified: to punish the disqualified driver and to protect the public by keeping the driver off the road.
(c) General words should be given a construction consistent with the legislation in question.22
(d)Legislation that is obscure, prolix or poorly drafted should be interpreted to give effect to the underlying purpose of the legislation.23
Discussion
[31] The BA04 was enacted as a direct response to the leaky building crisis.24 The Act sought to strengthen the regulation of building in order to minimise the possibility of building failure in the future.25
[32] Section 3 sets out the purposes of the Act:
3 Purposes
This Act has the following purposes:
(a) to provide for the regulation of building work, the establishment of a licensing regime for building practitioners, and the setting of performance standards for buildings to ensure that—
(i) people who use buildings can do so safely and without endangering their health; and
(ii) buildings have attributes that contribute appropriately to the health, physical independence, and well-being of the people who use them; and
(iii) people who use a building can escape from the building if it is on fire; and
(iv) buildings are designed, constructed, and able to be used in ways that promote sustainable development:
(b) to promote the accountability of owners, designers, builders, and building consent authorities who have responsibilities for ensuring that building work complies with the building code.
22 See, for example, Police v Emirali [1976] 2 NZLR 476 (CA) where the purpose of the Narcotics Act 1965 was to prevent the illicit use of narcotics. Consequently, the statutory provision that made it an offence to be in “possession” of “any narcotic” was interpreted to apply only to the possession of usable quantities of a narcotic.
23 United Insurance Co Ltd v The King [1938] NZLR 885 (CA).
24 Judith Cheyne et al Building Law in New Zealand (online looseleaf ed, Westlaw NZ) at
[BLIntro.01].
25 Building Amendment Bill 2007 12–2, as reported from the Social Services Committee at 1.
[33] Section 4(2)(q)(i) also provides:
(2) In achieving the purpose of this Act, a person to whom this section applies must take into account the following principles that are relevant to the performance of functions or duties imposed, or the exercise of powers conferred, on that person by this Act:
…
(q) the need to ensure that owners, designers, builders, and building consent authorities are each accountable for their role in ensuring that—
(i) the necessary building consents and other approvals
are obtained for proposed building work; …
[34] These two provisions make it clear that the purpose of the BA04 is to ensure that building work meets certain standards in order to achieve the goals of public health, safety and wellbeing, and sustainable development. The BA04 makes owners, designers, builders and authorities responsible for ensuring that this purpose is met.
[35] The building consent application process ensures that the Council can check that any proposed building work is sufficient to meet the purposes described in s 3. If a person fails to obtain a building consent, that deprives the Council of its ability to check any proposed building work.26 By making it a criminal offence in s 40 to carry out building work without building consent, Parliament must have intended to minimise the amount of unconsented building work carried out so as to ensure that
buildings meet the goals set out in s 3.
[36] I am concerned that Mr Tan’s narrow interpretation of the words “carry out building work” in s 40 would mean that only the trades people contracted to work on a building site would be liable; for example, the labourers, builders and plumbers. These workers usually have only limited knowledge of the project, restricted to their area of responsibility. In most building projects, such workers would inevitably rely on what the building owner or project manager tells them about the status of the
building consent.
26 Cheyne Building Law in New Zealand, above n 24, at [BL40.03(2)].
[37] By contrast, those delegated with planning and oversight of the building project are more likely to be tasked with obtaining the building consent. Such people are more likely to be aware of the status of the building consent application than the trades people carrying out the physical work. It follows that those with oversight are in the best position to make sure that unconsented building work does not occur.
[38] The prosecution’s wider interpretation is more consistent with the purposes of the BA04. That interpretation places the responsibility for ensuring compliance with the building consent with those people who have the closest connection to the building consent application process and those who are best placed to know whether a building consent had actually been obtained. In my view, making those with the closest connection to the consent process liable would reduce the amount of unconsented building work that is carried out, and in turn would ensure that more buildings achieve the s 3 goals.
Internal statutory context
[39] So far, I have concluded that the prosecution’s wider interpretation of the term “carry out” is more consistent with the statutory purpose of the BA04, as well as being consistent with the ordinary meaning of the text of s 40. But, no section should have an interpretation placed on it until the Court has examined how it sits in the Act as a whole.27
Mr Tan’s argument
[40] Mr Price submits that when s 40 is interpreted against other provisions of the BA04, Mr Tan’s narrow meaning should be preferred. In support of this submission he makes the following points:
(a) Section 386 of BA04 is a deeming provision to capture those who are
culpable although they themselves did not “do” any of the building
27 The Court of Appeal has noted that while a reference to interpreting a statute in accordance with its context was not enacted in the Interpretation Act 1999, “there is no doubt that the text of a provision must be interpreted having regard to the Act as a whole and the legal system generally”: Agnew v Pardington [2006] 2 NZLR 520 (CA) at [32].
work. These types of persons include representatives, agents and, importantly, contractors. If s 40 were to extend beyond the physical doing of building work, then s 386 would be otiose.
(b)The definition of “building work” in s 7 BA04 does not include supervision except of a certain narrow nature. So, s 7 shows that building work, except where provided by the legislation, is the doing of physical work itself and not anything broader.
(c) The Licensed Building Practitioner regime in the BA04 explicitly provides for liability in a supervisory capacity. The lack of express reference to supervision in s 40 would suggest that Parliament intended to omit supervision from the scope of s 40.
[41] I address each argument in turn.
Section 386 of BA04
[42] The relevant parts of s 386 provide:
386 Liability of principal for acts of agents
(1) The consequence specified in subsection (2) applies if a person (person A) commits an offence against this Act while acting as an agent (including a contractor) or employee of another person (person B).
(2) Person B is liable under this Act in the same manner and to the same extent as if person B had personally committed the offence.
(Emphasis added)
[43] I acknowledge that, in limited circumstances, there would be overlap between s 386 and a wide interpretation of s 40. One such situation would be where the owner has delegated the building project in its entirety to the project manager and the project manager hires trades people to work on the site. The project manager would be liable if building work is carried out without consent under both provisions.
[44] I also acknowledge that it is apparent from Judge Thorburn’s reasoning that he did not consider the impact of s 386. But, I disagree with Mr Price’s submission that the wider meaning of s 40 would render s 386 otiose. If I were to adopt the prosecution’s wide meaning, s 386 would still have work to do. One example where s 386 would give rise to liability but a wide interpretation of s 40 would not is where a principal has not explicitly supervised or instructed its agents to carry out the unconsented building work, but has, instead, passively permitted the work to be
done.28
[45] Conversely, s 386 is unable to cover situations that a wider interpretation of s 40 would be able to cover, such as the present one, where the trades people that a project manager supervises are contracted by the same company which employs the project manager and the trades people are not employed by the project manager personally.
Section 7
[46] Section 7 of the BA04 defines “building work”:
(a) means work—
(i) for, or in connection with, the construction, alteration, demolition, or removal of a building; and
(ii) on an allotment that is likely to affect the extent to which an existing building on that allotment complies with the building code; and
(b) includes sitework; and
(c) includes design work (relating to building work) that is design work of a kind declared by the Governor-General by Order in Council to be restricted building work for the purposes of this Act; and
(d) in Part 4, and the definition in this section of supervise, also includes design work (relating to building work) of a kind declared by the Governor-General by Order in Council to be building work for the purposes of Part 4
28 This is because, on the prosecution’s interpretation of s 40, for a person to have “instructed” or “supervised” the carrying out of building work, that person must have some knowledge of the facts from which a reasonable person would recognise the offence to occur, coupled with failing to prevent the offence. By contrast, a defendant will be liable under s 368 even if the defendant did not have actual knowledge that the offence was being committed.
[47] I cannot accept Mr Price’s submission that s 7 shows that building work, except where provided by the legislation, is the doing of physical work itself and not anything broader. Such an interpretation is inconsistent with a clear intention of Parliament that those in a supervisory capacity be held liable, reflected both in s 386, which I have already discussed, and the part of the Act relating to Licensed Building Practitioners, which I turn now to discuss.
The Licensed Builder Practitioner Scheme
[48] I acknowledge, as Mr Price points out, that the BA04 does draw a distinction between the words “carry out” and “supervision”. “Supervise” is defined in the Act as meaning “to provide control or direction or oversight of the building work to ensure that the building work meets a certain standard”.29
[49] But the distinction is made only in relation to the Licensed Building Practitioners regime found in Subpart 4 of Part 2. That subpart imposes certain requirements for “restricted building work”, which is work that is critical to the structural integrity and weathertightness of a building and can only be done or supervised by trades people who are Licensed Building Practitioners.30
[50] Section 317 also provides the grounds for disciplining Licensed Building Practitioners. It makes consistent references to carrying out work and supervising work.
317 Grounds for discipline of licensed building practitioners
(1) The Board may (in relation to a matter raised by a complaint or by its own inquiries) take any of the actions referred to in section 318 if it is satisfied that—
(a) both of the following matters apply:
…
(ii) the commission of the offence reflects adversely on the person's fitness to carry out or supervise building work or building inspection work; or
29 Building Act 2004, s 7.
30 Sections 85 and 86.
(b) a licensed building practitioner has carried out or supervised building work or building inspection work in a negligent or incompetent manner; or
(c) a licensed building practitioner has carried out (other than as an owner-builder) or supervised restricted building work or building inspection work of a type that he or she is not licensed to carry out or supervise; or
(d) a licensed building practitioner has carried out or supervised building work or building inspection work that does not comply with a building consent; or
…
[51] The Licensed Building Practitioner regime, and the corresponding disciplinary regime, address the purposes of the BA04 by imposing liability for inadequate supervision and therefore helps ensure that the most important parts of a building meet the relevant building standards.
[52] I disagree with Mr Price’s submission that the explicit provision for liability in a supervisory capacity under the Licensed Building Practitioner regime, coupled with the lack of express reference to supervision in s 40, suggests that Parliament intended to omit supervision from the scope of s 40. In fact, the existence of this subpart suggests Parliament contemplated that the purposes of the Act are furthered where those who supervise the work, in addition to those who physically do it, are held liable. It would be consistent with this legislative indication, and with the purposes of the Act, for the offence in s 40 to cover acts of supervision.
[53] Further, there is no clear reason why a Licensed Building Practitioner should be liable for inadequate supervision, whilst a non-licensed tradesperson is not. The reason for the licensing requirements in the Licensed Building Practitioner regime is to ensure that a minimum level of competence is achieved in relation to building work crucial to the weathertightness and/or structural integrity of the building. But there is plenty of building work outside of restricted building work which, if carried out improperly, would also jeopardise public safety, to a greater and more immediate degree than any weathertightness or structural issues, for example the faulty installation of a balustrade on a staircase or balcony. There is reason to ensure that
non-restricted work is carried out properly just as there is for restricted building work.
Conclusion on internal context
[54] I am not persuaded that the internal context (or scheme) supports the interpretation that Mr Tan proposes. If anything, the internal context supports a wider interpretation.
External context
[55] I now turn to consider what support can be found for either a narrow or wide interpretation from the external context to s 40, specifically the legislative history of the BA04 and the equivalent provision in the Resource Management Act 1991.
The legislative history
[56] Mr Price submits that a narrow interpretation of “carry out” is consistent with
the narrowing of the language in s 40 of the BA04.
[57] The predecessor to s 40 was s 80(1)(a) of the Building Act 1991, which provided:
80 Offences
(1) Every person commits an offence who
(a) Except as provided in section 32(2) of this Act, does any building work or permits any other person to do any building work, otherwise than in accordance with a current building consent.
(Emphasis added)
[58] As I have already noted, the words “permits any other person to do any building work” were not expressly carried over to the BA04. If Mr Tan had been charged under s 80 of the Building Act 1991, there is no question that his conduct would have been caught. There is no reference in the Select Committee reports or Parliamentary debates as to why such conduct should now be lawful under the BA04.
[59] The Building Amendment Act 2007 initially included an amendment to s 40, to incorporate the permitting offence and I set it out again:31
Clause 11 amends section 40 of the Act, which relates to building consent requirements for building work. The amendment substitutes new section
40(1), and extends the offence set out in section 40 to engaging or permitting another person to carry out building work except in accordance with a
building consent. This brings the offence into line with the former corresponding offence in the Building Act 1991.
[60] Clause 11 was later struck out without comment by the Select Committee.
[61] The advice of the Department of Building and Housing to the Select Committee, which I have accepted as fresh evidence, recommends against amending s 40 of the BA04 to expressly include the permitting offence, because the existing wording of s 40 was considered to already include engaging or permitting a person to carry out work without a building consent. The advice was that any amendment may lead to confusion and potential appeals by parties who, as a result of the amendment, may consider the pre-amendment s 40 to exclude permitting or engaging a person to do work.
[62] This evidence by itself is not capable of being determinative of the interpretation issue, but it does provide some explanation as to why the Select Committee may have chosen to reject the proposed amendment. Indeed, I think it is very likely the explanation because I see no reason why the Select Committee would have wanted a narrow s 40.
Resource Management Act 1991
[63] A wide interpretation of “carry out” brings the BA04 into line with the Resource Management Act 1991 (“RMA”). It is an offence under the RMA to both carry out work in breach of the planning rules without resource consent and to permit certain work to be carried out without a resource consent.32 It would be surprising that Parliament intended to narrow the scope of liability for carrying out work without a building consent, without also revising the scope of criminal liability
for carrying out work without a resource consent, given that those two consenting
31 Building Amendment Bill 2007 128–1 at 11.
32 Resource Management Act 1991, s 338.
processes run parallel to each other and are administered by the same government body.
Conclusion on external context
[64] I am persuaded that the external context of the legislation is consistent with the interpretation I have found to best accord with the statute’s purpose; that is, the wide interpretation.
Absurd consequences
[65] If the language of a statute has two different interpretations, the consequences of the alternative interpretation must be regarded, and the interpretation that avoids absurdity, injustice and unreasonableness should be preferred.33
[66] Mr Price submits that the interpretation of the offence definition deduced by Judge Thorburn results in a manifestly unfair state of affairs. He submits that the interpretation creates an uncertain definition of what does and does not constitute criminal offending under s 40. He submits that a bright line test that offending occurs when someone “does” certain building works, or is deemed under s 386 to be culpable, is more appropriate.
[67] I do not accept that adopting Judge Thorburn’s interpretation would make the ambit of s 40 too uncertain. The BA04 uses and defines “supervision” in relation to the Licensed Building Practitioners Regime. That definition could simply be adopted into the context of s 40.
[68] If anything, I agree with Judge Thorburn that it is Mr Tan’s interpretation that results in absurdity and injustice. It would indeed be nonsensical and “savagely unfair” on those “wielding the hammers and shovels” to expose them, and not those
who supervise or instruct them, to prosecution.
33 Jury v Brasting [1976] 1 NZLR 231 (HC).
The principle of lenity
[69] Mr Price submits that Judge Thorburn erred by not addressing the principle of lenity. He says that principle is to be applied such that any ambiguity is to be decided in favour of Mr Tan. So, he concludes, criminal liability does not apply beyond the plain meaning of the words used. The plain meaning does not extend “carry out” beyond “physically carry out”.
[70] In my view, the principle of lenity does not override the need for a purposive interpretation and criminal statutes are not immune from purposive interpretation. I agree, with respect, with the writers of Burrows and Carter Statute Law in New Zealand when they state:34
There have been shifts in the old attitudinal presumptions that prescribed certain Acts, in particular criminal and tax Acts, must be strictly construed in favour of the individual.
Thus, a person was not to be found guilty of crime unless the words of the Act covered that person beyond any doubt. Sometimes, in fact, this presumption favouring the individual led the words of the Act being so narrowly construed as to amount almost to distortion. This presumption has lost some of its force with the growing emphasis on purpose. Section 5(1) [of the Interpretation Act 1995] applies to enactments in general and draws no distinction between different classes of Act. If a person is clearly within the prohibition of the Act read sensibly in line with its purpose, that person is unlikely to be allowed to ride free on deficiencies and of expression…
[71] The writers then cite, as an example, R v Karpavicious where the Privy
Council in the context of interpreting the Misuse of Drugs Act 1975, said:35
[15] In a more literalist age it may have been said that the words of s 6(2A)(c) are capable of bearing either a wide or narrow meaning and that the fact that a criminal statute is involved requires the narrower interpretation…nowadays an approach of concentrating on the purpose of the statutory provisions is generally to be preferred.
[72] So, I do not find that the Judge erred in favouring a purposive interpretation over a strict application of the principle of lenity.
34 Carter Burrows and Carter Statute Law in New Zealand, above n 18, at 233–234.
35 R v Karpavicius [2004] 1 NZLR 156 (PC).
Conclusion
[73] In the light of the legislative purpose, as well as the internal and external statutory context, of the BA04, I have reached the conclusion that the term “carry out any building work” in s 40 of the BA04 is not limited to the physical carrying out of building work but includes the supervision or instruction of those who physically carry out building work.
Decision
[74] The appeal is dismissed.
Brewer J
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