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Supplementary Order Paper the Misuse of Drugs Amendment Bill (No 3) (Inconsistent) (Sections 14, 19(1)) [2004] NZBORARp 34 (27 October 2004)
Last Updated: 21 March 2021
Misuse of Drugs Amendment Bill (No3) Supplementary Order Paper
27 Octoberr 2004
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT
1990:
SUPPLEMENTARY ORDER PAPER MISUSE OF DRUGS AMENDMENT BILL
(NO3)
INTRODUCTION
- We
have considered whether the proposed Supplementary Order Paper ("the SOP") (PCO
version 5726a/10) to the Misuse of Drugs Amendment
Bill (No 3) is consistent
with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights Act"). We
understand that the Associate
Minister of Health has sought your views on the
SOP and in particular on the proposal to authorise the making of Regulations and
Orders in Council that override the Bill of Rights Act.
- As
the SOP has been ruled by the Office of the Clerk as outside the scope of the
Misuse of Drugs Amendment (No 3) Bill, the Associate
Minister is seeking to
circulate the SOP to all parties on the House Business Committee as soon as
possible prior to party caucuses
on 2 November, in order to secure agreement for
the SOP to be referred to the Health Committee. If agreement is not obtained, a
debatable
motion would need to be put to the House on the
SOP.
THE SOP
- The
SOP will amend the Misuse of Drugs Act 1975 (the "principal Act") by inserting a
new schedule into the principal Act. This schedule
will allow substances which,
although they have been deemed to be low risk to individuals and society by the
Expert Advisory Committee
on Drugs ("EACD"), require some form of control and
regulation to limit the potential harm able to be caused by such substances.
Substances that are added to the schedule are subject to Order in Council and
regulations:
- regulating
activities relating to restricted substances;
- setting out a
procedure for classifying restricted substances;
- applying the
"affirmative resolution" process of Order in Council to the scheduling of
restricted substances; and
- requiring
restrictions on sale or supply of a substance that may be related to matters of
age, advertising, and labelling.
After any Order in
Council has been approved by resolution of the House of Representatives, a
commencement order may be made bringing
the Order in Council into force.
- New
sections 47 and 65 of the SOP authorise the making of Orders in Council and
regulations that are inconsistent with the right to
freedom of expression
(section 14 of the Bill of Rights Act) and the right to be free from
discrimination on the grounds of age (section
19(1) of the Bill of Rights Act).
- We
have provided you with this advice based on the SOP and our understanding that
certain provisions are subject to change. If any
subsequent amendments give rise
to further Bill of Rights Act issues we will advise you immediately.
- The
Crown Law Office has seen this opinion and agrees with our
conclusions.
THE BILL OF RIGHTS ACT ISSUES RAISED BY THE SOP
- New
section 47 authorises the making of Orders in Council. New section 47(1)
provides that the Governor-General may, in accordance
with a recommendation of
the Minister, amend the schedule by adding or removing the name or description
of any substance in order
that it become a restricted substance, and specifying
what type of restriction or requirement, if any, applies to a substance added
to
the schedule. Restrictions or requirements include age restrictions, advertising
restrictions, labelling restrictions and signage
requirements. Breaches of these
restrictions or requirements are punishable by fines ranging from $2,000 for
failing to comply with
age restrictions to $5,000 for an individual and $10,000
for a body corporate for failing to comply with labelling or signage
restrictions.
We also note that new section 47(3) provides that section 5 to 10
of the Regulations (Disallowance) Act 1989 will not apply (see
also new section
65(1)(q)).
- New
section 49(2) sets out a wide range of matters to which the Minister must have
regard to before recommending to the Governor-General
an Order in Council under
new section 47. These matters include:
- the extent to
which the substance is used for any lawful purpose;
- the purpose for
which the substance is currently advertised;
- the positive or
negative impact that any restriction or requirement imposed on the substance
might have on any lawful commercial enterprise
or on the public;
- the
practicalities of imposing restrictions or requirements on the substance;
and
- the risk of
increasing the substance’s abuse due to increased awareness of the
substance’s abuse potential.
- We
note that the powers provided for in new sections 47 and 65 are cast in broad
terms, for example, we note that new sections 65(1)(c)
and 65(1)(e) allow for a
complete prohibition on advertising and labelling. New sections 65(1)(a) and
65(1)(b) allow for unspecified
age restrictions to be applied to the sale and
supply of restricted substances.
- We
understand that the scope of the regulation-making power is considered necessary
to accommodate the broad range of recreational
drugs and household products that
may be potentially subject to this regime and the extensive amount of policy
work that is still
to be completed by Health officials. In normal circumstances
such a regulation-making power would be interpreted consistently with
the Bill
of Rights Act (as required by section 6 of the Bill of Rights Act) to authorise
the making of regulations that provided
underlying reasonable limits on any
right or freedom protected by the Bill of Rights Act.
- New
sections 47(4) and 65(2) provide that Orders in Council and Regulations may
limit the Bill of Rights Act in terms of section 14,
the right to freedom of
expression, and section 19(1) in relation to age discrimination. Although it may
be possible to read new
sections 47(4) and 65(2) as only referring to
"reasonable limits" being placed on the rights, we consider that there is a real
likelihood
that the courts would read "limits" as including "unreasonable
limits" in the sense that they would not be able to be justified in
terms of
section 5 of the Bill of Rights Act. We have come to this view because otherwise
sections 47(4) and 65(2) would serve no
purpose; the courts would ordinarily
need to read the Order in Council or Regulation to be consistent with the Bill
of Rights Act.
There is a strong likelihood that the courts, recognising that
Parliament would not enact a provision that had no purpose, would
take an
interpretation that placed "additional limits" on the usual application of the
Bill of Rights Act.
- We
therefore consider that new sections 47(4) and 65(2) authorise the making of
Orders in Council and Regulations that are "unreasonable"
and therefore
inconsistent with the Bill of Rights Act.
FURTHER
CONSIDERATIONS
- We
also note that these provisions would appear to be inconsistent with New
Zealand's obligations in respect of articles 19 (freedom
of expression) and 26
(prohibition against discrimination) of the International Covenant on Civil and
Political Rights ("the ICCPR").
Although Article 19 of the ICCPR allows for
restrictions to be placed on the right to freedom of expression for the
protection of
public health, such restrictions are only permissible where they
are shown to be necessary. We consider that such restrictions would
only be
"necessary" where it could be shown they were reasonable in terms of section 5
of the Bill of Rights Act
- We
understand that the rationale for including provisions in the SOP that override
the Bill of Rights Act is to avoid the risk that
certain regulations or orders
in council will be struck down as being ultra vires as a consequence of
the Court of Appeal decision in Drew v Attorney General [2001] NZCA 207; [2002] 1 NZLR
58.
- However,
we note the scope of section 49 of the SOP (see paragraph 8 above), and the
range of factors the Minister must have regard
to before making recommendations.
We consider that the nature of the issues that the Minister and EACD must have
regard to are no
more significant than the fundamental rights and freedoms
provided for under the Bill of Rights Act. Accordingly the presence of
clause 49
results in a high risk of any Order in Council being challenged as being
ultra vires because of the failure to take appropriate new section 49
considerations into account, regardless of any potential Bill of Rights
Act
issues.
- We
therefore consider that the Ministry of Health concerns regarding the policy
underpinning the SOP being made unworkable because
of challenges under the Bill
of Rights Act are misstated. In our view the SOP could adequately address these
concerns without any
limitation of the Bill of Rights Act. We consider that the
section 5 test provided for under the Bill of Rights Act is sufficiently
flexible to ensure that restrictions and requirements attached to individual
substances or classes of substances can meet objectives
of protecting public
health, while ensuring that the rights of individuals are not unreasonably
limited.
Conclusion
- We
note that new sections 47 and 65 provide that Regulations and Orders in Council
can be made which provide for unreasonable limits
on the right to freedom from
age discrimination and freedom of expression as affirmed by sections 14 and
19(1) of the Bill of Rights
Act.
- In
accordance with your instructions, we attach a copy of this opinion for referral
to the Minister of Justice. We also attach copies
for referral to the Prime
Minister, Deputy Prime Minister and Associate Minister of Health, if you
agree.
Margaret Dugdale
|
Allison Bennett
|
Policy Manager
|
Principal Legal Adviser
|
Bill of Rights/Human Rights Team
|
Office of Legal Counsel
|
cc
Prime Minister
Deputy Prime Minister
Minister of
Justice
Associate Minister of Health
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 SOP to
the Misuse of Drugs Amendment Bill No 3. 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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