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Climate Change (Emissions Trading and Renewable Preference) Bill (Consistent) (Sections 14, 21, 25(c)) [2007] NZBORARp 44 (9 November 2007)
Last Updated: 5 January 2019
Climate Change Response (Emissions Trading) Amendment Bill
9 November 2007 Attorney-General LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: CLIMATE CHANGE
RESPONSE (EMISSIONS TRADING) AMENDMENT BILL
Note: this Bill 2007 was renamed as the Climate Change (Emissions Trading and
Renewable Preference) Bill following submission of
this advice to the
Attorney-General.
- We
have assessed whether the Climate Change Response (Emissions
Trading)
Amendment Bill (PCO 8246/11) (‘the Bill’) is
consistent with the New Zealand Bill of Rights Act 1990 (‘the Bill
of
Rights Act’). We understand that the Bill will be considered by the
Cabinet Legislation Committee (LEG) at its meeting on
15 November 2007. The
Ministry for the Environment has informed us about minor changes to be made to
the Bill prior to its consideration
by LEG and we have prepared our advice on
that basis. We will provide you with further advice if any changes to the Bill
raise additional
Bill of Rights issues.
- In
our view, the Bill appears to be consistent with the rights and freedoms
affirmed in the Bill of Rights Act. In reaching this conclusion,
we considered
potential inconsistencies with section 14 (freedom of expression), section 21
(unreasonable search and seizure), and
section 25(c) (presumption of innocence)
of that Act. Our analysis under those sections is set out below.
PURPOSE OF THE BILL
- The
Climate Change Response Act 2002 (‘the Act’) implements New
Zealand’s international obligations under the Kyoto
Protocol to the United
Nations Framework Convention on Climate Change. The purpose of the Bill is to
enable New Zealand to meet its
obligations to:
- retire Kyoto
units equal to the number of tonnes of carbon dioxide equivalent of
human-induced greenhouse gases;
- report to the
Conference of Parties under Article 7 of the Protocol and Article 12 of the
Convention; and
- create a
greenhouse gas emissions trading scheme in New Zealand.
- Clause
40 of the Bill inserts new Parts 4 and 5 into the Act. The provisions of the
Bill that are relevant to this advice are all
in clause 40 so this advice refers
to new sections of the Act rather than the relevant clauses of the
Bill.
POSSIBLE INCONSISTENCIES WITH THE BILL OF RIGHTS ACT
Freedom of Expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression. The Courts in Canada and the United
States have held that freedom of
expression necessarily entails the right to say nothing or the right not to say
certain things.[1]
- New
section 82(1) empowers the chief executive of the Department responsible for the
Act (‘the chief executive’) or an
enforcement officer to require a
person to provide any information that is reasonably necessary to ascertain
compliance with the
Act. The chief executive can require the person to appear
before the chief executive or an enforcement officer to give evidence and
produce documents (new section 83) or refer the matter to a District Court judge
for a similar examination (new section 84). It is
arguable whether the
information in question is truly expressive in nature but there is a clear
element of compulsion because new
section 117 makes it an offence not to comply.
We have therefore considered justifications under section 5 of the Bill of
Rights
Act.
- Where
a provision is prima facie inconsistent with a particular right or freedom, it
may nevertheless be consistent with the Bill
of Rights Act if it can be
considered reasonable and can be justified under section 5 of that Act.[2] A limitation on a right might be
justifiable where:
- the
provision serves an important and significant objective; and
- there
is a rational and proportionate connection between the provision and that
objective.
- The
Ministry for the Environment has advised us that the powers contained in new
sections 82 to 84 are necessary because the emissions
trading scheme relies on
accurate information being available. Some of the information needed to assess
compliance with the Act is
only available from the person carrying out the
activity and a participant could frustrate the scheme simply by refusing to
provide
any information about their activities.
- We
have concluded that the provision is rational and proportionate in that it is
restricted to information that is reasonably necessary
for the enforcement of
the Act. We also note that, although a person would not be excused from
answering a question that could incriminate
that person, new section 85(2) makes
the testimony inadmissible in criminal proceedings against that person except on
a charge of
perjury in relation to that testimony. New section 87 requires
anyone carrying out the functions and powers of the chief executive
or an
enforcement officer under Part 5 of the Act to maintain
confidentiality.
- For
these reasons, we have concluded that to the extent that these provisions limit
the freedom of expression, they are justified
for the purposes of section 5 of
that Act.
Unreasonable Search and Seizure
- Section
21 of the Bill of Rights Act affirms the right of everyone to be secure against
unreasonable search or seizure.
- New
section 88 in the Bill empowers an enforcement officer to enter land or premises
(except a dwellinghouse or marae) in order to
determine compliance with the Act.
The enforcement officer may:
- require
the production of, inspect and copy, any documents;
- take
samples of water, air, soil, or organic matter;
- carry
out surveys, investigations, tests, inspections, or measurements; and
- demand
any other information that the enforcement officer may reasonably require to
determine compliance with the Act.
- We
consider the inspection powers in the new section 88 to be reasonable because
the purpose is limited to ensuring compliance with
the Act. Individuals and
organisations operating within a regulated industry can expect to be subject to
scrutiny to ensure compliance
with the law. Such inspection regimes do not
usually require the authorised person to obtain a warrant if the primary purpose
of
the inspection is to monitor for compliance with a regulatory regime. We also
note that the Bill includes the following safeguards:
- the right of
entry is restricted to ordinary hours of business;
- the enforcement
officer must give the occupier or owner reasonable notice unless doing so would
defeat the purpose of the entry;
- the enforcement
officer must produce his or her warrant of authorisation and evidence of
identity on entry and if asked at any time
afterward;
- the power is
subject to the privilege against self-incrimination;
- if the person is
not present, the enforcement officer must leave a notice that shows the time and
purpose of the inspection as well
as the contact details of the enforcement
officer; and
- the enforcement
officer must leave a notice that lists any items taken, where those items are
being held; and the procedure that the
person must follow to have those items
returned.
- New
section 89 empowers enforcement officers to conduct inspections of
dwellinghouses or marae as well as execute searches of any
property on suspicion
of an offence. The inspection and search powers in new section 89 appear to be
reasonable for the purpose of
section 21 of the Bill of Rights Act. In addition
to the safeguards described above (except notice), the powers set out in section
89 are subject to a warrant issued by a District Court Judge. In the case of a
dwellinghouse, the enforcement officer must also be
accompanied by a police
officer.
Presumption of Innocence
- Section
25(c) of the Bill of Rights Act provides that everyone who is charged with an
offence has, in relation to the determination
of the charge, the right to be
presumed innocent until proved guilty according to law. The right to be presumed
innocent requires
that an individual must be proven guilty beyond reasonable
doubt, and that the state must bear the burden of proof.[3]
- Strict
liability offences raise a prima facie issue of inconsistency with
section 25(c) because, once the prosecution has proved the defendant committed
the act in question, the
defendant must prove the defence (or disprove a
presumption) on the balance of probabilities to escape liability. In other
criminal
proceedings a defendant must merely raise a defence in an effort to
create reasonable doubt. Where a defendant is unable to prove
the defence, or
disprove a presumption, then she or he could be convicted even if reasonable
doubt exists as to her or his guilt.
Strict Liability Offences in the Bill
- New
section 115 makes it an offence to fail, without reasonable excuse, to collect
data, calculate emissions, or keep records in accordance
with specified sections
of the Act. New section 117(1)(a) makes it an offence to fail, without
reasonable excuse, to provide information,
appear before the chief executive or
an enforcement officer, or fail to produce any document or documents, when
required to do so
under the Act. These offences appear to be strict liability
offences because, once the prosecution has proved that a person has failed
to do
any of the things set out in new sections 115 or 117(1)(a), that person must
make out a reasonable excuse in order to escape
conviction.
- We
have concluded that the strict liability offences in new section 117 appear to
be justifiable. First, the offences can be described
as regulatory in nature
rather than "truly criminal" offences. Those who choose to participate in
regulated industries should be
expected to meet certain expectations of care and
accept the enhanced standards of behaviour required of them.[4]
- Secondly,
strict liability offences can be justifiable where the offence turns on a
particular matter that is peculiarly within the knowledge of the
defendant. In this case, the defendant is the only one who knows why he or she
failed to appear or provide
the information. Therefore it is more appropriate
for the defendant to provide this information than require the Crown to prove
the
opposite.
- Finally,
as a general principle, strict liability offences should carry penalties at the
lower end of the scale. The penalties set
out in new sections 115 and 117(1)(a)
appear to be set at an appropriate level. For example, the maximum penalties in
new section
117(1)(a) are $12,000 for individuals and $25,000 for bodies
corporate. By comparison, that section contains similar offences with
an element
of wilful non- compliance or obstruction with maximum penalties of $25,000 for
individuals and
$50,000 for bodies corporate.
CONCLUSION
- Based
on the analysis set out above, we have concluded that the Bill appears to be
consistent with the rights and freedoms affirmed
in the Bill of Rights Act.
Jeff Orr Chief Legal Counsel Office of Legal Counsel
|
Stuart Beresford
Acting Manager, Bill of Rights/Human Rights Public Law Group
|
Footnotes
- Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705
(1977)
- Moonen
v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9
- R
v Wholesale Travel Group 84 DLR (4th) 161, 188 citing R v Oakes
[1986] 1 SCR 103
- R
v Wholesale Travel Group (1992) 84 DLR (4th) at 213
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 Climate
Change Response (Emissions Trading) Amendment 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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