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Secondhand Dealers and Pawnbrokers Bill (Consistent) (Sections 5, 19(1), 25(c)) [2003] NZBORARp 24 (9 May 2003)
Last Updated: 27 March 2021
Secondhand Dealers and Pawnbrokers Bill
9 May 2003
Attorney-General
Secondhand Dealers and Pawnbrokers Bill (PCO 4128/17): Consistency with New
Zealand Bill of Rights Act 1990
Our Ref: ATT114/1197 (1)
- We
have considered the above Bill ("the Bill") for consistency with the New Zealand
Bill of Rights Act 1990 ("BORA") and have concluded
that the Bill is consistent
with the rights protected by that Act. In reaching that conclusion, two issues
of prima facie inconsistency
arose in respect of the Bill that we wish to draw
to your attention.
Age restrictions (s 19(1) BORA)
- First,
there were two provisions that raised issues of potential age discrimination.
Clause 21(b) prohibits persons under the age
of 18 years from holding
certificates or licences as pawnbrokers, secondhand dealers or agents. Clauses
56(1) and 57(1)(f) prevent
pawnbrokers from accepting pledges from persons under
that age.
- These
age restrictions are prima facie inconsistent with the freedom from
discrimination on the grounds of age affirmed by s 19 BORA and s 21(1)(i) of the
Human Rights
Act 1993, which is defined as any age commencing with the age of 16
years. It is therefore necessary to consider whether such inconsistencies
can be
justified in terms of s 5 BORA.
- Age
limits necessarily involve a degree of generalisation, without regard for the
particular abilities, maturity or other qualities
of individuals within that age
group. As here, age may be seen to be used as a proxy measure of maturity and
capacity to act responsibly.
In broad terms, the use of age in that way can be
understood as a necessary alternative to the assessment of each individual's
maturity
and responsibility, which would be plainly unworkable in some contexts
and contrary to the interests that particular legislation
seeks to promote.
However, it is necessary to identify specific justification for the imposition
of an age limit in each instance.
- In
relation to the limit imposed by cl. 21(b) in relation to certificates and
licences, we consider that it is justified on two specific
grounds. The first is
that the age of 18 years is considered appropriate as a lower age limit for
positions involving trust and responsibility:
see, for example, s 151(2)(a) of
the Companies Act 1993, which fixes 18 as the minimum age of company directors.
Further, the risk
of criminal involvement in pawnbroking and secondhand dealing
requires that holders of certificates and licences be sufficiently
mature to
withstand pressure to fail to comply with the requirements contained in the
Bill.
- The
age limit imposed by cll. 56(1) and 57(1)(f) in relation to the pledging of
articles raises different issues. While the pledging
of articles does involve
the conclusion of credit contracts, it is not possible to justify an age limit
by reference to the need
to protect young persons in relation to such contracts
given the protection afforded by s 6 of the Minors' Contracts Act 1969, under
which contracts with minors may not be enforced.
- However,
it is possible to justify the limit on the basis that pledges are made in a
potentially difficult commercial environment
with little scope for advice or
warnings to those making them.
- As
such, it is reasonable for Parliament to set an age limit reflecting its
assessment of when most persons making pledges will have
sufficient maturity to
ensure fair treatment in such an environment. The alternative would be for
Government to assess the individual
capacities of persons aged 16 or 17 years,
or any other age for that matter, so as to determine whether they have
sufficient maturity
to enter into pledging contracts, and we do not consider
that this is an alternative that Government must adopt in order to act
reasonably.
Further, it is also reasonable, in the context of pledges of
articles under the Bill, to accept that the protection afforded by the
Minors'
Contracts Act may be of limited practical assistance.
- While
we consider that this matter is more finely balanced than that under cl. 21(b),
we are of the view that the age restrictions
contained in cll. 56(1) and
57(1)(f) is justified.
Reverse onus (s25(c) BORA)
- Secondly,
cll. 15(4), 16(4), 19(3), 29(4), 30(2), 31(4), 34(3), 35(5), 36(3), 37(3),
39(2), 40(6)(a), 41(4), 42(3), 47(4), 48(4),
57(2) and 58(6) all include reverse
onus provisions under which acts or, more frequently, omissions are unlawful in
the absence of
a reasonable excuse. Such provisions are prima facie
inconsistent with the presumption of innocence affirmed by s 25(c) BORA.
However, these provisions, which relate to the documentary
requirements of the
Act, are justified as necessary elements of the administration of a regulated
commercial activity in which individuals
choose to participate.
Yours Sincerely,
Andrew Butler Crown Counsel
|
Ben Keith Associate Crown Counsel
|
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
Secondhand Dealers and Pawnbrokers 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.
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