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Sale of Liquor (Youth Alcohol Harm Reduction) Bill (Consistent) (Sections 14, 19(1)) [2005] NZBORARp 15 (10 May 2005)
Last Updated: 6 April 2021
Sale of Liquor (Youth Alcohol Harm Reduction) Amendment
Bill
10 May 2005
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH NEW ZEALAND BILL OF RIGHTS ACT
1990:
Sale of Liquor (Youth Alcohol Harm Reduction) Amendment
Bill
- We
have considered whether the Sale of Liquor (Youth Alcohol Harm Reduction) Bill
(the “Bill”) is consistent with the
New Zealand Bill of Rights Act
1990 (the “Bill of Rights Act”). The Bill is a Member’s Bill
in the name of Hon
Matt Robson, and was drawn from the ballot on Wednesday, 4
May 2005. We understand that it may receive its First Reading on the next
Member’s Day which is scheduled for Wednesday, 11 May 2005.
- We
have concluded that the Bill appears to be consistent with the Bill of Rights
Act. In reaching this conclusion, we considered potential
issues of
inconsistency with sections 14 and 19(1) of the Bill of Rights Act. Our analysis
of these issues is set out below.
- The
Bill proposes to amend the Sale of Liquor Act 1989 to:
- raise the
drinking age to 20 years of age;
- remove the
ability for someone other than parents or guardians to supply those under the
legal age with alcohol; and
- designate stand
alone bottle stores as areas that minors cannot access without a parent or
guardian.
Further, the Bill proposes to insert a new part
to the Sale of Liquor Act restricting broadcasting of liquor advertising
programmes
to after 10:00pm on any day, and give the Broadcasting Standards
Authority "sole jurisdiction" over all matters that may arise in
relation to any
liquor advertising programme.
- We
have consulted the Crown Law Office in the preparation of this advice, and it
agrees with the conclusions we have reached.
ISSUES OF
INCONSISTENCY WITH THE BILL OF RIGHTS ACT
SECTION 14: RIGHT TO FREEDOM OF EXPRESSION
- Clause
10 of the Bill introduces a new Part 8A into the principal Act. The new Part
would prevent the broadcasting of any liquor advertising
programme before
10:00pm on any day and impose a fine of up to $100,000 on anyone who breached
the restriction on advertising. In
other words, liquor advertising would only be
allowed between the hours of 10:00pm and
12:00am. [1]
- The
Bill imports the definition of ‘advertising programme’ from section
2 of the Broadcasting Act 1989. An advertising
programme includes a programme or
part of a programme that is primarily intended to promote a product or service
for commercial advantage
and for which payment is made (in money or
otherwise). [2] It
also includes a sponsorship credit that is intended to promote a product or
service. [3] New
Part 8A would therefore apply to regular television programmes that are
sponsored by the liquor industry as well as regular liquor
advertising. However,
the Bill would not affect advertisements or promotional messages designed to
reduce the harm caused by alcohol
(e.g. drink-driving advertisements).
- As
Clause 10 of the Bill restricts the ability of the liquor industry to advertise
their product (and the ability of consumers to
receive that information), we
have considered whether Clause 10 is inconsistent with section 14 of the Bill of
Rights Act.
- Under
section 14 of the Bill of Rights Act, every person has the right to freedom of
expression:
Everyone has the right to freedom of expression,
including the freedom to seek, receive, and impart information and opinions of
any
kind in any form.
- The
right to freedom of expression in section 14 of the Bill of Rights Act extends
to all forms of communication that attempt to express
an idea or
meaning, [4] and
extends to commercial speech (such as
advertising). [5] Overseas
case law suggests that not all forms of expression are equally deserving of the
protection and commercial expression that
is considered to reside within the
periphery of the
right.[6] The
Courts have held the view that commercial expression is of less importance than
political or artistic expression and consequently
limitations on the right in
this context are easier to
justify.[7]
- We
consider that a limit on a right can be justified in terms of section 5 of the
Bill of Rights Act where it meets a significant
and important objective, and
where there is a rational and proportionate connection between the limitation on
the right and that
objective.
What is the significant and
important objective?
- The
purpose of this provision appears to be to limit the exposure of young persons
to alcohol advertising, thereby reducing their
consumption of alcohol. We
consider that this is a sufficiently important and significant objective for the
purposes of this advice.
Is the restriction a proportionate
response?
- The
Bill significantly changes the way in which alcohol advertising is regulated.
Currently the Advertising Standards Authority's
Code for Advertising
Liquor[8] governs
the way in which, the manner in which, and the extent to which alcohol may be
advertised. The most significant change to
alcohol advertising is that the Bill
reduces the period in which liquor advertising is permissible from nine and a
half hours down
to just two hours (new section 184C(1)).
- Currently,
Principle 4 of the Code requires liquor advertisements not to be shown between
6:00am and 8:30 pm. It also requires broadcasters
to take care to avoid the
impression that liquor promotion is dominating the viewing or listening period
when broadcasting liquor
advertisements. The associated
guideline[9] states
that television liquor advertising shall not exceed six minutes per hour, and
there shall be no more than two advertisements
for liquor in a single commercial
break. These principles already provide for a reasonable limitation on the right
to freedom of
expression, thereby raising the question as to whether the further
changes are disproportionate.
- We
consider that the new restrictions on advertising of alcohol in this Bill are
reasonable because they extend only to broadcasting,
and do not extend to other
forms of liquor advertising and sponsorship. This would allow the liquor
industry to continue to advertise
through a number of other media such as
newspapers, billboards, and flyers, as well as allowing consumers to access that
information.
- We
consider that, on balance, the proposed amendment appears to be consistent with
the Bill of Rights Act. In reaching this conclusion
we have taken into account
the objective of the Bill as well as the appropriate standard of protection to
provide to commercial expression
under section 14 of the Bill of Rights
Act.
SECTION 19: RIGHT TO BE FREE FROM DISCRIMINATION
- Section
19(1) of the Bill of Rights Act provides the right to freedom from
discrimination on the grounds set out in section 21 of
the Human Rights Act
1993. These grounds include age, which means any age commencing with the age of
16 years.
- In
our view, taking into account the various domestic and overseas judicial
pronouncements as to the meaning of discrimination, the
key questions in
assessing whether discrimination under section 19(1) exists are:
i. Does the
legislation draw a distinction based on one of the prohibited grounds of
discrimination?
ii. Does the distinction involve disadvantage to one or more
classes of individuals?
- If
these questions are answered in the affirmative, we consider that the
legislation gives rise to a prima facie issue of "discrimination"
under section
19(1) of the Bill of Rights Act. Where this is the case, the legislation falls
to be justified under section 5 of the
Bill of Rights Act. We consider that a
limit on a right can be justified in terms of section 5 of the Bill of Rights
Act where it
meets a significant and important objective, and where there is a
rational and proportionate connection between the limitation on
the right and
that
objective.[10]
Clause
4 (Sale and supply of liquor to minors), Clause 5 (Exemptions in respect of
other parts of licensed premises), Clause 6 (Purchasing
liquor for minors), and
Clause 7 (Purchasing liquor by minors)
- The
Bill proposes raising the legal drinking age from 18 years to 20 years of age by
amending sections 155, 157, 160, and 162 of the
Sale of Liquor
Act.[11] This
proposal draws a distinction between 18 and 19 year olds, and those over 20
years of
age.[12] The
effect of this distinction is that 18 and 19 year olds will no longer be able to
purchase alcohol, a product which is currently
legally available to
them.[13] Therefore,
the proposed amendment gives rise to a prima facie issue of age discrimination
under section 19(1) of the Bill of Rights
Act.
What is the
significant and important objective?
- The
Explanatory Note to the Bill focuses on decreasing alcohol related harm for
young people. Specifically, it appears the objectives
behind the amendment to
increase the legal drinking age from 18 to 20 years old are to:
- reduce the
ability for minors (under 18 year olds) to access alcohol (i.e: to prevent peers
and siblings (likely to be 18 and 19 year
olds) from purchasing alcohol for
minors);
- reduce
disorderly behaviour incidents of young people; and
- reduce the
occurrence of traffic related incidents in which alcohol is a
factor.
- The
Explanatory Note sets out arguments for raising the legal drinking age to 20
years of age, including reference to the findings
of the Young People and
Alcohol: Some Statistics to 2002 on Possible Effects of Lowering the Drinking
Age (Ministry of Justice, 2004
Update). It is worth noting that this report
concluded that the statistics show a mixed picture of the possible impact from
lowering
the drinking age in 1999 and that:
- there is robust
evidence that, while the number of young people drinking alcohol may not be
increasing, those who do drink appear
to be drinking more frequently and consume
higher volumes of alcohol (for 14 – 15 year olds, 16 – 17 year olds,
and 18
– 19 year olds); and
- while the change
in legislation appears to have had a detrimental effect on young people’s
drinking behaviour, for many of the
indicators, the changes appear to be a
continuation of trends established before the law was changed. In addition,
improvements in
law enforcement practices may have influenced the
findings.
We also note that other areas, more difficult to
measure, such as the short and long term effects of youth drinking may influence
whether the proposed amendments are justifiable.
- The
objectives have been assessed within this context, and we consider that reducing
alcohol related harm for all people, especially
young people, is an important
and significant objective.
Is the restriction a proportionate
response?
Access to alcohol for minors
- The Young
People and Alcohol report observes an increase in alcohol-related
offending by minors against the Sale of Liquor Act (from 834 incidents in 1994
to
2597 in 2002). In addition, it notes that many Police districts felt that it
was easier for those under 18 to access alcohol than
before the Act lowered the
drinking age, and that often these young people were accessing alcohol through
older friends or siblings.
- The
Sale of Liquor Act contains an offence (section 160) to punish parties who
purchase alcohol for minors. While increasing the legal
drinking age may prevent
18 and 19 year olds from purchasing alcohol for their younger peers and
siblings, the problem remains that
people are purchasing alcohol for minors. As
noted above, the number of young people drinking is not increasing, therefore it
seems
that the problem of adults purchasing alcohol for minors pre-dates the
original law change to lower the drinking age.
- In
addition, international studies of the effects of a minimum legal drinking age
observe that the laws prohibiting the sale and provision
of alcohol to minors
are not well
enforced,[14] and
suggest that this is an ongoing problem, regardless of where the minimum legal
drinking age is set.
- There
is insufficient information available to the Ministry at this time to ascertain
whether raising the legal drinking age will
best achieve this objective;
arguably, mechanisms to assist the Police to better enforce the existing law may
also be beneficial.
Disorderly behaviour incidents
- The
Explanatory Note states that Police have had to deal with rising numbers of
drunk and disorderly teenagers since the drinking
age was lowered in 1999. The
Young People and Alcohol report finds that there has been an increase in the
apprehension of minors
(14 – 17 year olds) for disorderly behaviour, and
convictions of 18 and 19 year olds continued to increase after the law change
but had levelled off in 2002. Both of these trends reflect an increase over the
same period for people of all ages for disorderly
behaviour offences. Better law
enforcement practices by the Police may have influenced these increases (eg:
enforcing liquor bans
etc).
- Therefore,
it appears that while the occurrence of underage minors’ drinking
continues to be problematic, it is difficult to
assess whether 18 and 19 year
olds are causing more problems than other legal drinkers 20 years of age and
over. There is insufficient
information available to the Ministry at this time
to assess if 18 and 19 year olds pose more of a problem than other legal
drinkers
(20 years of age and over) or suffer more alcohol related harm, and,
therefore, whether the proposed amendment is a proportionate
response to this
problem.
Teenage drivers and alcohol-related offending
- The
Young People and Alcohol report observes, in relation to teenage drivers and
alcohol-related offending that:
- Teenage drivers
between the ages of 14 – 17 years, and 18 and 19 years prosecuted for
driving with excess breath or blood alcohol
showed an increasing trend. In each
of the years after the law change the number of such prosecutions for 18 or 19
year olds increased,
and at 2546 in 2002 was higher than for any year since
1993.
- Both the number
and percentage of 15-19 year old drivers involved in crashes who had alcohol
recorded as a factor that contributed
to the crash decreased between 1993 and
1999. Following the law change, the numbers and percentages continued to
decrease in 2000,
but increased slightly in 2001 and 2002. However, the 2002
figures were still lower than the 1993 figures.
- In
addition, studies in the United States have found that there is evidence that
lowering the legal drinking age was associated with
an increase in traffic
crashes and traffic deaths among
youths.[15] Further,
two cases from the United States in 1998 and 2000 found that setting a minimum
legal drinking age in such a way as to improve
highway safety, as based on
empirical evidence that the law saved lives, was not unconstitutional (i.e:
unreasonable age
discrimination).[16]
- Despite
the percentage of crashes in which alcohol is recorded as a factor still being
below the 1993 level, the indication in the
Young People and Alcohol report of
the increasing number of teenage drivers involved in crashes which had alcohol
recorded as a factor
since 2000 is of concern. Again, there is insufficient
information available to the Ministry at this time to assess if 18 and 19
year
olds pose more of a risk in traffic offending than other legal drinkers (20
years of age and over) and, therefore, whether the
proposed amendment is a
proportionate response to this problem. However, given the seriousness of the
traffic related incidents and
the risk and harm to not only to those drinking,
but to other drivers, it is arguable that increasing the age limit may be a
proportionate
response to this problem.
Role of the Parliament
and Complex Social Policy Issues
- The
setting of a minimum legal drinking age, is a complex social policy issue that
requires the careful assessment of many factors,
including the consideration of
the mixed picture of the findings from both domestic and international studies
into the possible outcomes
of lowering the minimum legal drinking age.
- In
many jurisdictions, including Canada and the United
Kingdom,[17] Courts
have determined that a degree of deference to Parliament may be appropriate
where the law involves complex social issues “in
which reasonable
legislators could disagree while still respecting the ...
right”.[18] Of
particular note are situations where the legislative choices include a law is
designed to protect a vulnerable group, or where
the law is premised on complex
social-science evidence.
- In
our view, the difficult, political judgements inherent in setting social policy
in complex areas suggest that Parliament should,
in some circumstances, be
allowed a degree of flexibility in such areas. This view is also supported by
judgments of the Privy Council
and the New Zealand Court of
Appeal.[19]
- We
note also the “deference” approach found throughout Canadian case
law is persuasive, notably in M v H [1999] 2 SCR 3. The Court considered that
the legislature’s burden under the Charter:
“...will
[sometimes] involve demonstrating why the legislature had to make certain policy
choices and why it considered these
choices to be reasonable in the
circumstances. These policy choices may be of the type that the legislature is
in a better position
than the court to make, as in the case of difficult policy
judgments regarding the claims of competing groups or the evaluation of
complex
and conflicting social science
research.”[20]
- Justice
Iacobucci (who, with Cory J, wrote the main majority judgment) concurred with
Bastarache J that “an examination of context
is essential in determining
whether deference is
appropriate.”[21] In
M v H a majority of the Canadian Supreme Court also reiterated that “[t]he
notion of judicial deference to legislative choices
should not ... be used to
completely immunize certain kinds of legislative decisions from the Charter
scrutiny”.[22]
- The
Canadian Supreme
Court[23] has
considered the issue of age in the context of establishing thresholds that
determine eligibility for particular entitlements.
Although the Court in this
case was considering whether a particular age could be used to determine
eligibility to a particular social
assistance programme, the Court made some
observations that are of relevance. McLachlin CJ observed that in some
circumstances using
age as a proxy may be justified on the grounds
that:
"Perfect correspondence between a benefit programme and the
actual needs and circumstances of the claimant group is not required to
find
that a challenged provision does not violate [the right to be free from
discriminaton]...As Iacobucci J noted in
Law[24] we should
not demand "that legislation must always correspond perfectly with social
reality in order to comply with [the right to
be free from discriminaton]".
- In
the context of setting an appropriate minimum legal drinking age, we note that
the research in New Zealand has resulted in a mixed
picture about the possible
impact of lowering the minimum legal drinking age and other factors, such as
improvements in law enforcement,
may have influenced findings. However, as noted
by the Explanatory Note and the Young People and Alcohol report, some negative
social
trends have continued upwards, including an increase in traffic crashes
in which alcohol is a factor. In our view, therefore, this
indicates that some
deference to the policy objectives of Parliament when it is legislating in this
area may be appropriate.
Conclusion: section 19(1) Bill of Rights
Act
- We
consider that the Bill, by increasing the legal drinking age from 18 to 20 years
old gives rise to a prima facie issue of discrimination
on the ground of age We
have concluded that the arguments as to whether these provisions are justified
are very finely balanced.
However, after consideration of the context in which
these issues arise and having regard to the degree of deference appropriately
allowed to Parliament in matters of complex social policy, we have concluded
that, although the Bill contains discriminatory aspects,
it does not introduce
discrimination that is so unreasonable as to be considered
“unjustified” in terms of section 5
of the Bill of Rights
Act.
CONCLUSION
- We
consider that the Bill, by restricting the hours in which broadcasting liquor
advertising programmes may occur, gives rise to an
issue of prima facie
inconsistency with section 14 of the Bill of Rights Act. We have concluded that
this proposed amendment is a
justifiable restriction under section 5 of the Bill
of Rights Act to the right to freedom of expression as affirmed by section 14
of
the Bill of Rights Act.
- We
consider that the Bill, by increasing the legal drinking age from 18 to 20 years
old gives rise to a prima facie issue of discrimination
on the ground of age
However, after consideration of the context in which these issues arise and
having regard to the degree of deference
appropriately allowed to Parliament in
matters of complex social policy, we have concluded that, although the Bill
contains discriminatory
aspects, it does not introduce discrimination that is so
unreasonable as to be considered “unjustified” in terms of section
5
of the Bill of Rights
Act.
Jeff Orr Chief Legal Counsel Office of Legal Counsel
|
Margaret Dugdale Manager, Bill of Rights/Human Rights Team
|
CC Minister of Justice Associate Minister of Justice (Hon Rick
Barker) Hon Matt Robson
|
|
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 Sale of
Liquor (Youth Harm Reduction) Bill 2005. 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.
[1] We have
considered whether New Part 8A, which requires matters about liquor advertising
to be considered only by the Broadcasting
Standards Authority (rather than the
Advertising Authority), raises issues of inconsistency with section 14 also.
However, to the
extent that such issues might arise, we consider that the
transfer of jurisdiction does not of itself give rise to unreasonable limits
on
the right to freedom of expression as the Broadcasting Standards Authority is
required to apply the Bill of Rights Act in its
determination of complaints
under existing broadcasting codes. See Television New Zealand Ltd v Viewers for
Television Excellence
Inc [2005] NZAR
1.
[2] Section
2(a)(i) and (ii) of the Broadcasting
Act.
[3] Section
2(b)(i) and (ii) of the Broadcasting
Act
[4] R v Keegstra
[1990] INSC 224; [1990] 3 SCR
697,729,826.
[5]
Irwin Toy Ltd v A-G (Quebec) (1989) 58 DLR (4th) 577
(SCC).
[6]
RJR-MacDonald Ltd v Attorney General of Canada (1995) 127 DLR (4th) 1; see on
this point the dissenting judgment of La Forest
J.
[7] Richard
Claydon & Hugh Tomlinson The Law of Human Rights (Oxford University Press,
Oxford, 2000), Vol.1, 15.171 –
15.176
[8] (September
2003). NB: The Authority is an incorporated body established by media and
advertising representatives to help industry
regulate advertising standards. The
powers of the Authority are limited and may only require an advertiser to
withdraw an advertisement
if the complaint is upheld. See
www.asa.co.nz
[9] (2
December 2004)
[10]
In applying section 5, the Ministry of Justice has regarded to the guidelines
set out by the Court of Appeal in Ministry of Transport
(MOT) v Noort [1993] 3
NZLR 260 Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9; and
Moonen v Film and Literature Board of Review [2002] NZCA 69; [2002] 2 NZLR
754.
[11] These
amendments will not affect the employment opportunities for young people as the
Bill does not propose to amend section 161
which covers the employment of
minors. Therefore, 18 and 19 year olds will be able to serve alcohol despite not
being able to consume
it.
[12] The
proposed amendment will continue to prevent 16 and 17 year olds from purchasing
and consuming alcohol. For the purposes of this
advice the issue as to whether
continuing the restriction on the legal drinking age for 16 and 17 year olds
constitutes a justified
restriction on the right to be free from discrimination
has not been
revisited.
[13]
These amendments will also affect the ability for adults to provide alcohol to
minors unless the adult is a parent or guardian. This
goes further than the
current Sale of Liquor Act (refer clause 6, purchasing liquor for
minors).
[14] See
for example Wagenaar, A.C, and Wolfson, M: Deterring sales and provision of
alcohol to Minors: A study of enforcement in 295
counties in four states. (US)
Public Health Reports 110(4): 419-427,
1995.
[15] See for
example Wagenaar, A.C: A. Minimum drinking age and alcohol availability to
youth: Issues and research needs. In: Hilton,
M.E., and Bloss, G., eds.
Economics and the Prevention of Alcohol-Related Problems. National Institute on
Alcohol Abuse and, Alcoholism
Research Monograph No. 25. NIH Pub. No. 93-3513.
Bethesda, MD: the Institute, 1993. pp.
175-200
[16] See
Manuel vs State of Louisiana, No.95-CA-2189, Supreme Court of Louisiana, 2 July
1996; and State of Louisiana v Ferris, No.99-KA-2329,
Supreme Court of
Louisiana, 16 May
2000
[17] CANADA: M
v H [1999] 2 SCR 3; Law v Canada (Minister of Employment and Immigration) 170
DLR (4th) 1; and Gosselin v Attorney-General of Quebec; Attorney-General of
Ontario et al 221 DLR (4th) 257; UNITED KINGDOM: R v DPP Ex p Kebeline [2002] 2
AC 366 (UK); R v Lambert [2001] 2 WLR 211 (UK); R (on the application of Pretty)
v DPP [2001] UKHL 61
(UK).
[18]
Professor Peter Hogg, Constitutional Law of Canada (looseleaf) (1999-Rel. 1),
35.11(b)
[19]
Matadeen & Anor v Pointu & Ors [1998] WLR 18, 26 where the Privy Council
noted: “The reasons for not treating people uniformly often involve ...
questions of social policy
on which views may differ. These are questions which
the elected representatives of the people have some claim to decide for
themselves.”
In Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523, 527 Gault J
noted that “Justification for differences will frequently be found in
social policy resting on community values.”
Justices Keith and Thomas also
accepted that changes to the law will need to be gradual and incremental, with
some leeway for
Parliament.
[20] M
v H [1999] 2 SCR 3, para
79
[21] M v H
[1999] 2 SCR 3, para
80
[22] M v H
[1999] 2 SCR 3, para 78 referring to Vriend v Alberta [1998] 1 SCR 493, per Cory
J at para 54
[23]
Gosselin v Attorney-General of Quebec; Attorney-General of Ontario et al 221 DLR
(4th) 257, at 294 per McLachlin
CJC
[24] Law v
Canada (Minister of Employment and Immigration) 170 DLR (4th) 1
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