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Border (Customs, Excise, and Tariff) Processing Bill (Consistent) (Sections 21, 22) [2009] NZBORARp 57 (17 September 2009)

Last Updated: 28 April 2020

Border (Customs, Excise, and Tariff) Processing Bill

17 September 2009

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: BORDER (CUSTOMS, EXCISE, AND TARIFF) PROCESSING BILL

1. We have considered whether the Border (Customs, Excise, and Tariff) Processing Bill

(PCO 13876/1.14) (‘the Bill’) is consistent with the New Zealand Bill of Rights Act

1990 (‘the Bill of Rights Act’). We understand that the Bill is likely to be considered by Cabinet at its meeting on Monday, 21 September 2009.

2. The Bill amends the Customs and Excise Act 1996 and the Tariff Act 1988. The purpose of the Bill is to make improvements in the processing and administration of goods and people required under these two interrelated Acts. Most amendments relate to border processing and administration by facilitating New Zealand’s international commitments or the use of new technology (the automated passenger processing system “Smartgate”). Other amendments strengthen Customs’ law enforcement capability, or improve border processing or administration generally.

3. We have concluded that the Bill appears to be consistent with the rights and

freedoms contained in the Bill of Rights Act. In reaching this conclusion, we considered potential issues of inconsistency with section 21 (right to be secure against unreasonable search or seizure) and section 22 (right to be free from

arbitrary arrest and detention) of the Bill of Rights Act. Our analysis of these issues is set out below.

POSSIBLE ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT Section 21 – Right to be Secure against Unreasonable Search and Seizure

4. Section 21 of the Bill of Rights Act provides that:

“Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, correspondence or otherwise.”

5. There are two limbs to the section 21 right. First, section 21 is applicable only in respect of those activities that constitute a "search or seizure". Second, where certain actions do constitute a search or seizure, section 21 protects only against those searches or seizures that are "unreasonable" in the circumstances.

Search power extended to unattended vehicles

6. Clause 18 inserts a new subsection (5) into section 144 of the Customs and Excise Act

1996. Section 144 provides Customs officers with the power to stop and search vehicles for any dutiable, uncustomed, prohibited, or forfeited goods without

warrant. New subsection (5) extends the search power to situations where vehicles are not moving, or are unattended. This includes the power to use reasonable force when necessary to stop, detain, enter in or on, and search the vehicle.

7. We have therefore considered whether extending the search power in section 144 to include unattended vehicles is “unreasonable” in the circumstances.

8. Officials from New Zealand Customs have advised that the powers in section 144 are used by Customs officers in conducting investigations relating to offences against the Act, in which vehicles may be stopped and searched for the presence of drugs, objectionable publications, prohibited weapons, and plants or animals (or products made from them) that are considered to be endangered, threatened or exploited species. The nature of these investigations may be such that it is impossible to predict what time frames will be involved, where the activity will occur or how many investigative strands will need to be dealt with at any one time.

9. Extending Customs officers’ powers to allow for the stopping and searching of

unattended vehicles under new subsection (5) will provide Customs officers with the flexibility needed to more effectively carry out their investigations. In particular, Officials from New Zealand Customs have advised that this power will help prevent goods or evidence of offending from being destroyed or lost.

10. We consider that despite the fact that expectations of privacy are lower in the context of people and goods crossing international borders,[1] there should still be appropriate safeguards in place to ensure that the right to be secure from unreasonable search is respected. New subsection (5) will be subject to the existing safeguards contained in section 144 as follows:

o the power to search vehicles under section 144 may only be exercised where

there is reasonable cause to suspect (ss. 144(1),(3) and (4)) or reasonable ground to believe (ss. 144(2)) in relation to the nature of goods in or on a vehicle, or to any offence against the Act, and

11. For these reasons, we have concluded that the new power proposed by clause 18 is reasonable for the purposes of section 21 of the Bill of Rights Act.

Section 22 – Right to be free from arbitrary arrest and detention

12. Section 22 of the Bill of Rights Act provides that "everyone has the right not to be arbitrarily arrested or detained."

13. The Court of Appeal has said that a detention is arbitrary if it is "capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures."[2]

Changes to arrest powers

14. Clause 19 repeals subsections (1) and (2) of section 174 of the Customs and Excise Act 1996 and replaces them with three new subsections. Section 174 permits a Customs officer or constable, who has reasonable cause to suspect that a person has committed, is committing, or is attempting to commit, or is otherwise concerned in

the commission of specified offences against the Act, to arrest that person without warrant.

15. We have therefore considered whether the arrest powers proposed by clause 19 are

“arbitrary” in terms of section 22 of the Bill of Rights Act.

16. The main changes resulting from the insertion of the new subsections into section

174 are that:

o it will no longer be required that the person concerned is found on a craft

(this requirement is currently found in section 174(2))

o to exercise the arrest power, a Customs officer or constable must have

‘reasonable cause to suspect’ that a person has committed, is committing, or is attempting to commit, or is otherwise concerned in the commission of specified offences against the Act, (currently section 174(2) requires ‘belief on reasonable grounds’ rather than ‘reasonable cause to suspect’)

arose, will be consistently provided for (currently only section 174(1) contains

this limit).

17. The powers of arrest without warrant can only be exercised if the threshold of

‘reasonable cause to suspect’ is met and the arrest must take place within 7 days after the date on which such cause to suspect arises. We have also noted that the inherent nature of the border environment means that decisions are often urgent and have to be made within limited timeframes.

18. For the above reasons, we have concluded that the arrest powers proposed by clause 19 are not arbitrary for the purposes of section 22 of the Bill of Rights Act.

Conclusion

19. This advice has been prepared by the Public Law Group and the Office of Legal Counsel. We have concluded that the Bill does not appear to be inconsistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Footnotes:

1. R v Simmons [1988] 2 SCR 495.

2. Neilsen v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433 (CA) at para. 34.

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 Border (Customs, Excise, and Tariff) Processing 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.


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