Healthy Homes Guarantee Bill (No 2)

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

The healthy housing programme: Report of the outcomes evaluation (year three). Housing New Zealand Corporation (2007).  (accessible at http://thehub.superu.govt.nz/publication/healthy-housing-programme-report-outcomes-evaluation-year-three)

Warm, dry, healthy? Insights from the 2015 House Condition Survey on insulation, ventilation, heating and mould in New Zealand houses. Building Research Association of New Zealand (2017). (accessible at https://www.branz.co.nz/cms_show_download.php?id=50335e67bb00f3e0464097be1d4d71ac8a85f6bf)

Minimum home temperature thresholds for health in winter: A systematic literature review, Public Health England (2014). (accessible at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/468196/Min_temp_threshold_for_homes_in_winter.pdf)

Temperature, housing, deprivation and their relationship to excess winter mortality in Great Britain, 1986–1996 (2001); Aylin P, et al. Int J Epidemiol2001;30:1100-8 (accessible at https://academic.oup.com/ije/article/30/5/1100/724186)

Cold Comfort: The Social and Environmental Determinants of Excess Winter Death in England, 1986-1996.Wilkinson P, et al. The Policy Press. Bristol (2001). (accessible at https://www.jrf.org.uk/report/cold-comfort-social-and-environmental-determinants-excess-winter-deaths-england-1986-1996)

Health Impact of Low Indoor Temperatures. World Health Organisation (WHO), Copenhagen (1985). (Draft update WHO guidelines have re-confirmed 18°C as the minimum temperature based on physiological data). (accessible at http://www.euro.who.int/__data/assets/pdf_file/0008/97091/E89887.pdf)

Damp indoor spaces and health. Institute of Medicine (US).  National Academies Press, (2004). (accessible at https://www.ncbi.nlm.nih.gov/books/NBK215643/)

Energy use in New Zealand households, Final Report, BRANZ Study Report SR 221.  Building Research Association of New Zealand, (2010). (accessible at https://www.branz.co.nz/heep)

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.2.1. If so, was a National Interest Analysis report prepared to inform a Parliamentary examination of the proposed New Zealand action in relation to the treaty?

N/A

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

NO

The Bill was originally a Member’s Bill and was adopted by the Government late in the Parliamentary process. The Government has made a manifesto commitment to pass the Bill in its first 100 days. Due to this compressed timeframe, a Regulatory Impact Assessment (RIA) was not provided at the time the Government decided to adopt the Bill.

Some impact analysis has been prepared subsequently. For further information, refer to the answer to question 2.4.

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

NO

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

N/A

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

YES

MBIE prepared some analysis of the Bill’s potential impact, after it was adopted as a Government Bill. See Heating and insulation standards for residential rental properties, MBIE, 10 November 2017 (accessible at: http://www.mbie.govt.nz/info-services/housing-property/housing-quality).

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

See Heating and insulation standards for residential rental properties, MBIE, 10 November 2017 (accessible at: http://www.mbie.govt.nz/info-services/housing-property/housing-quality).

The impact assessment includes initial estimates of the costs of upgrading heating in public housing. The information is focussed on the cost of additional heating requirements because this is likely to be the highest compliance cost that is additional to requirements in existing laws.

The cost to private landlords will depend both on the current state of their properties and on the exact standards set in regulations.

Further clarification on the composition of proposed standards for insulation, heating, draught proofing, ventilation, controlling moisture ingress, and drainage is required before total costs can be determined accurately. Such standards will be developed and introduced through regulations at a later stage and there will be an opportunity to consider costs through the assessment process for the regulations.

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

YES

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

YES

MBIE will provide further advice on these matters to inform policy decisions to be made during the process of developing regulations.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

MFAT has been consulted on the proposals as modified by the SOP.

The Bill’s effect is localised to the New Zealand domestic residential rental market. The amendment, which will improve the health and well-being of people living in rental households, particularly children and low income families, is consistent with New Zealand’s international obligations under the International Covenant on Economic Social and Cultural Rights, which recognise the right to adequate housing and a continuous improvement of living conditions. The right to adequate housing can also be found in the Convention on the Rights of a Child and the Universal Declaration on Human Rights.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

Te Puni Kōkiri was consulted on the proposals as modified by the SOP. Their comments did not indicate that any of the proposals in the Bill are inconsistent with the Treaty of Waitangi.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

NO

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

YES

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

The Bill creates some new unlawful acts.

Where the Tribunal is satisfied that an unlawful act has been committed by one of the parties, it may order the payment of an amount by one party to the other in the nature of exemplary damages. Unlawful acts under the Residential Tenancies Act 1986 (RTA) are not offences and do not give rise to penalties.

It will become an unlawful act for a landlord (including boarding house landlords) to fail to give the statement as to compliance with the Healthy Homes Standards or to include in that statement anything the landlord knows to be false or misleading. The maximum exemplary damages for this unlawful act will be $500 (see clause 4(6), and schedule 1A of the RTA).

It will become an unlawful act for landlords (including boarding house landlords) to fail to comply with the obligation to comply with the Healthy Homes Standards. The maximum exemplary damages for this unlawful act will be $4,000 (see clause 5 and the amendment to section 66I in the Schedule).

The amendments to section 123E of the Act in the Schedule will give the Tenancy Tribunal the power to authorise the inspection of a premises where the Tribunal is satisfied that the chief executive of MBIE has reasonable grounds to believe that the order sought is reasonably necessary for the purpose of implementing a programme of inspection under new section 123A.

The amendment to section 2(1) of the Act in the Schedule will enable the Tribunal to make work orders with respect to compliance with the Healthy Homes Standards.

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The Ministry of Justice Offence and Penalties Vetting team was consulted on the proposed level of damages relating to clause 5 and was informed of the proposed unlawful act relating to clause 4(6).

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

NO

The amendments to section 123A of the RTA will require certain records related to compliance with the Healthy Homes Standards to be retained by the landlord and produced to the chief executive of MBIE if required.

While the documents may incidentally contain some personal information, it is intended that the records concerned will relate to the premises itself and actions taken by the landlord to comply with the Healthy Homes Standards. These records will be used to determine whether the landlord has complied with their legal obligations with respect to the Healthy Homes Standards.

3.5.1. Was the Privacy Commissioner consulted about these provisions?

NO

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

The Government Administration Select Committee received 85 substantive submissions on the Bill. These included submissions from local government entities, public health organisations, NGOs and churches, interest groups, charities, professional bodies, community trusts, student associations, the Council of Trade Unions and a number of individuals.

In addition, approximately 7143 ‘standard form’ submissions (i.e. auto-fill submissions) were sent to the offices of the Labour Party via their website which were then forwarded to the Committee. Of these, 805 submissions were considered to be unique and distinct submissions for the Select Committee’s consideration because they included additional text. Many of these submitters expressed in principle support for the intention of the Bill without engaging in detail on the mechanism used to give effect to that intention.

Of a total of 890 distinct submissions, six individual submitters opposed the Bill. Three submitters appeared to support the principles behind the Bill but withheld their support overall because it either did not go far enough or they were concerned costs would ultimately be borne by tenants. No submissions were received from interested groups associated with landlords.

Key themes emerged in submissions raised in support of the Bill, although some of them are outside the scope of this particular Bill.  The following themes were in scope:

• general support for the Bill’s intention to ensure that rental homes meet minimum standards relating to heating and insulation;
• the standards that could help deliver on the Bill’s objective of healthy homes; and
• the need to get better clarity as to roles and responsibilities around compliance and enforcement.

There has been no further external consultation on the Government’s proposed amendments to the Bill. These amendments are, however, broadly consistent with matters that have been discussed previously with stakeholders through the Select Committee’s consultation.

The Bill provides a framework for developing detailed regulations that will give effect to the standards. MBIE intends to seek Cabinet approval to undertake stakeholder consultation on the regulations.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? 

NO

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

NO

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

NO

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

YES

Clause 6 provides for regulations to be made that provide for Healthy Homes Standards with which landlords must comply. The regulations are made by the Governor-General by Order in Council. Healthy Homes Standards may include standards about indoor temperatures and other outcomes (for example, levels of moisture and humidity) that must be capable of being achieved in premises. For the purpose of complying with these capability requirements, Healthy Homes Standards can also set out other requirements in relation to heating, ventilation, moisture ingress, draught stopping, drainage and other matters.

The regulations can also make provision for ways of determining whether or not standards have been met, include exceptions to the standards, prescribe information that must be included in the statement of compliance, and prescribe documents to be retained. Regulations will also be able to make different provision for different descriptions of landlords, premises and areas in New Zealand.

The regulations can also prescribe earlier compliance dates for the standards (see clause 11(7) and (8) in the Schedule).

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

NO