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Rugby World Cup 2011 (Empowering) Bill (Consistent) (Sections 14, 19, 25(c)) [2009] NZBORARp 73 (25 November 2009)

Last Updated: 28 April 2020

Rugby World Cup 2011 (Empowering) Bill

25 November 2009

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: RUGBY WORLD CUP 2011 (EMPOWERING) BILL

1. We have considered whether the Rugby World Cup 2011 (Empowering) Bill (PCO

13899/3.10) (‘the Bill’) is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on Thursday 26 November 2009.

2. 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 issues of consistency with ss 14, 19(1) and 25(c) of that Act.

3. The Bill seeks to enable the expeditious determination of applications for activities

or facilities reasonably necessary for the proper conduct of the Rugby World Cup

2011. To that end, the Bill establishes and empowers the Rugby World Cup Authority (‘the Authority’), as a consenting body, to determine applications for temporary regulatory approvals. It also empowers the Minister for the Rugby World Cup to grant urgent approvals for temporary activities and facilities where these were, for good reason, unforeseen and are reasonably necessary for the successful staging of the tournament. The Bill includes sunset provisions to disestablish the Authority

after the conclusion of the tournament.

ISSUES OF CONSISTENCY WITH THE BILL OF RIGHTS ACT Section 14 – Freedom of Expression

4. Section 14 of the Bill of Rights Act affirms the right to freedom of expression, which includes the freedom to seek, receive, and impart information and opinions of any kind and in any form. The right to freedom of expression in section 14 extends to all forms of communication that attempt to express an idea or meaning. [1]

5. We note, taking into account the various domestic and overseas judicial

pronouncements on the issue, a two-step inquiry has been adopted to determine whether an individual’s freedom of expression has been infringed. The first step involves a determination of whether a particular activity falls within the freedom of expression. The second step is to determine whether the purpose or effect of the proposed government action is to restrict that freedom. [2]

6. Clause 39(1)(b) of the Bill (Making of interim injunctive orders) provides that the Authority may make an interim injunctive order requiring a person to cease undertaking an activity or prohibiting a person from commencing an activity if in its opinion, the activity is, or is likely to be, noxious, dangerous, offensive, or objectionable to such an extent that it has, or is likely to have, an adverse effect on

the environment or a serious prejudicial effect on the proper conduct of the Rugby

World Cup.

7. We have considered whether the types of activities that would fall within the ambit of cl (1)(b) are of a nature that attracts the protection of s 14 of the Bill of Rights Act. We note that for the purpose of the Bill the term activity is defined narrowly as “a use, trade, business, occupation and service that is undertaken or conducted for or

in connection with the Rugby World Cup 2011.” Within this narrow definition we consider that there is scope for a person to operate an activity that expresses an idea or meaning, for example, promoting the benefits of sport participation in reducing youth delinquency. It is also conceivable that a person may wish to use the activity

to highlight an issue of public concern – for example, the human rights abuses being

committed in a country participating in the Rugby World Cup 2011 – that may have an adverse effect on the event (for instance, by reducing attendance at matches involving that country).

8. When exercising its decision making power under cl 39(1)(b) the Authority is responsible for ensuring that its decisions are consistent with the Bill of Rights Act. We consider that this clause does not authorise the Authority to make an interim order in a way that would limit the right to freedom of expression in a way that is inconsistent with the Bill of Rights Act.

Section 19: Right to be free from discrimination

9. Section 19(1) of the Bill of Rights Act provides the right to freedom from discrimination on the grounds set out in s 21 of the Human Rights Act 1993. These grounds include age, which means any age commencing with the age of 16 years.

10. Clause 71(2)(b) of the Bill (Other conditions of licenses) provides that the Authority can impose a condition on a Rugby World Cup liquor licence that all or a specified part (or parts) of the premises or area to which the licence applies are to be designated as restricted areas or supervised areas. These terms are defined in cl 55 of the Bill. A restricted area is any designated part to the premises or area where a person under the age of 18 years must not be admitted. A supervised area is any designated part to the premises or area where a person under the age of 18 years must not be admitted unless accompanied by the person’s parents or guardian. This approach reflects the law under the Sale of Liquor Act 1989.

11. As such, the Bill gives rise to an issue with the freedom from discrimination on the

grounds of age as affirmed by s 19(1) of the Bill of Rights Act. It is, therefore, necessary to consider whether such inconsistencies can be justified in terms of s 5 of that Act.

12. We consider that a limit on a right can be justified in terms of s 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 the objective.

13. On 4 August 2008, the Crown Law Office provided you with advice on this same issue in the context of the Sale and Supply of Liquor and Liquor Enforcement Bill. In summary, that advice noted that age-based restrictions necessarily involve a degree of generalisation, without regard for the particular abilities, maturity or other

qualities of individuals within the distinguished age group. In broad terms, age restrictions on accessing licensed premises reflect:

• great vulnerability, both for physiological and social reasons, to alcohol-related harm

• the effectiveness of parents and guardians as the primary means of education of young people in relation to alcohol.
  

The Crown Law Office concluded that, assuming a disadvantage arises for persons of 16 and

17 years, protection against alcohol-related harm for young persons is an important objective and that the limit is proportionate based on empirical support for the appropriateness of the age of 18 as an age limit. [3] We also note that restricting access to liquor premises reduces the likelihood of a person under the age of 18 years accessing alcohol through older friends or family. [4]

We concur with that analysis and, accordingly, consider that the age restrictions on accessing licensed premises can be justified under section 5 of the Bill of Rights Act. In reaching this conclusion, we also note that it is the responsibility of the Authority to determine whether a condition should be placed on the licence, and when doing so the Authority must act consistently with the Bill of Rights Act.

Section 25(c) – Right to be presumed innocent until proved guilty

Section 25(c) of the Bill of Rights Act affirms the right of everyone charged with an offence 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. [5] We have considered one possible inconsistency with s 25(c) in this Bill.

Reverse onus offences create a prima facie inconsistency with s 25(c) because, once the prosecution has proven 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.

Clause 77(1) of the Bill (Offence of licensee in respect of manager) provides that a licensee commits an offence by failing, without reasonable excuse, to appoint a manager to be on duty at all times when liquor is sold or supplied to the public on premises or in an area subject to a Rugby World Cup liquor licence. A person who fails to comply with these requirements would need to prove a reasonable excuse in order to escape liability.

A reversal of the onus of proof is generally considered to be more easily justifiable for "regulatory" offences such as those set out in the Bill. Reverse onus offences can also be justified where the offence turns on a particular matter that is peculiarly within the knowledge of the defendant. The sale and supply of liquor is carefully regulated by the Sale of Liquor Act 1989 which includes a detailed regime for licensing premises. Part 6 of the

Sale of Liquor Act also requires a manager to hold a certificate, and to be on duty in a licensed premises at all times and makes them responsible for compliance with the Act (ss

115 and 116 of the Act). Those who choose to participate in regulated industries are

expected to meet certain expectations of care and accept the enhanced standards of behaviour required of them. [6] For the specified offence in this Bill, we consider the defendants to be in a better position to explain why they failed to comply with the necessary regulatory requirements of which they are readily aware.

A reversal of the burden of proof is less of a concern where the penalty is relatively low and therefore has a less significant impact on the accused. The maximum penalty for committing an offence under cl 77(1) is a fine not exceeding $5,000. We consider these penalty levels to be appropriate for the area being regulated.

Accordingly, we have concluded that this reverse onus offence appears to be justifiable under s 5 of the Bill of Rights Act.

CONCLUSION

We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Footnotes:

1. R v Keegstra [1990] INSC 224; [1990] 3 SCR 697,729,826

2. Ross v New Brunswick School District No 15 [1996] 1 SCR 825

3. See, for example, P Cagney & S Palmer, The Sale and Supply of Alcohol to Under-18

Year Olds in New Zealand: A Systematic Overview of International and New Zealand

Literature: Final Report (Research New Zealand, 2007) 78-105.

4. See Young People and Alcohol: Some Statistics to 2002 on Possible Effects of

Lowering the Drinking Age (Ministry of Justice, 2004 Update)

5. R v Wholesale Travel Group (1992) 84 DLR (4th) 161, 188 citing R v Oakes [1986] 1

SCR 103

6. 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 Rugby World Cup 2011 (Empowering) 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.