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Food Bill (Consistent) (Sections 14, 21, 25(c)) [2010] NZBORARp 13 (25 March 2010)

Last Updated: 7 May 2019

Food Bill

25 March 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: FOOD BILL

1. We have considered the Food Bill (PCO 7667/14.3) (‘the Bill’) for consistency 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 the Cabinet Legislation Committee at its meeting on 1 April 2010.
2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion we have considered possible inconsistencies with ss 14 (freedom of expression), 21 (unreasonable search and seizure), and 25(c) (presumption of innocence) of that Act.
   

PURPOSE OF THE BILL

3. The Bill establishes a regulatory regime for food safety and suitability which applies to food produced for the domestic market or for export and also to food importers. The Bill requires a person who deals with food to take all reasonable steps to ensure that the food is safe and suitable. In particular, the Bill requires all persons who deal with food to operate under a registered food control plan unless they are exempt. Food control plans contain an assessment of the risks to food safety and suitability and set out processes to manage those risks.
   

SUMMARY OF ADVICE

4. Clause 211 of the Bill makes it an offence to publish an advertisement that does not comply with all applicable food standards relating to advertising as well as other requirements of the Bill, or is false or likely to deceive a buyer. We have considered whether cl 211 limits the freedom of expression affirmed in s 14 of the Bill of Rights Act. We conclude that any limitation can be justified because cl 211 serves an important and significant objective and is restricted to matters contained in the Bill. It does not prevent a person from advertising or expressing genuinely held opinions.
5. Clause 256 of the Bill empowers the chief executive of the department responsible for administering the Act (‘the chief executive’) to direct people operating under the Act to make statements for the purpose of protecting the public. The statements that could be required under cl 256 are likely to be statements of fact rather than ideas or opinions. However, if freedom of expression is infringed by cl 256, it can be justified on the basis that the objective of the provision is to ensure public safety. The chief executive can

only require statements to be made that achieve that purpose and the matters included in the statement are narrowly prescribed in the Bill.

6. Clauses 266 to 277 of the Bill empower a food safety officer to enter certain places (including dwellinghouses and marae) without a warrant in order to determine whether the owner or operator of that place is complying with the requirements of the Act. We consider the regulatory inspection powers to be reasonable for the purpose of s 21 of the Bill of Rights Act (unreasonable search and seizure). Individuals and organisations operating within a regulated industry can expect to be subject to scrutiny to ensure compliance with the law. The Bill includes appropriate safeguards such as requiring the officer to give notice, enter at a reasonable time and produce identification. It is unusual for a regulatory inspection power without a warrant to include dwellinghouses and marae. However, following discussions with the New Zealand Food Safety Authority, we are satisfied that the provision is necessary to ensure consistent regulation of food businesses. Clause 277 of the Bill carefully prescribes the power to enter a dwellinghouse or marae by restricting the power to the specific place where the food business is carried out and the places necessary to get to that place.
7. Clause 296 of the Bill empowers a police officer or food safety officer to enter and search a place under a warrant. Taking into account the various safeguards in the Bill, this power appears to be reasonable. The issuing officer may only issue a warrant if satisfied that there are reasonable grounds for believing that there is, at the place, anything that relates to or is evidence of an offence against the Act. The search must be executed within 14 days at a time that is reasonable in the circumstances and be exercised in accordance with any conditions of the warrant.
8. Part 4 of the Bill contains several strict liability offences. Strict liability offences raise a prima facie issue of inconsistency with the right to be presumed innocent in s 25(c) of the Bill of Rights Act. Taking into account the nature of the conduct being regulated, the ability of the defendants to exonerate themselves and the penalty levels, the relevant strict liability offences appear to be justifiable.
   

POSSIBLE INCONSISTENCIES WITH THE BILL OF RIGHTS ACT

Freedom of Expression

9. Section 14 of the Bill of Rights Act affirms that 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.
   

Freedom of Expression and Advertising

10. The right to freedom of expression in s 14 of the Bill of Rights Act extends to all forms of communication that attempt to express an idea or meaning [1] including commercial expression (such as advertising). [2]
11. Clause 211 of the Bill makes it an offence to publish an advertisement that does not comply with requirements relating to advertising food as well as any other requirements of the Bill, or is false or likely to deceive a buyer. Clause 211 could limit the freedom of expression by imposing conditions on the

content of advertising. We have therefore considered whether such a limitation could be justified under s 5 of the Bill of Rights Act.

12. We consider that a limit on a right can be justified 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. Overseas case law suggests that not all forms of expression are equally deserving of the protection and that commercial expression is considered to reside within the periphery of the right. [3] 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. [4]
13. The purpose of the provision is to forbid and prevent persons operating under the regulatory framework created by the Bill to advertise in a manner contrary to the Bill’s requirements and overall purpose, which is to protect and promote public health by ensuring food safety and suitability. This purpose is a significant and important objective. We also consider the provision is rationally and proportionately connected to that objective. In reaching this conclusion, we have taken into account the fact that cl 211 creates a strict liability offence and our analysis at paragraphs 24 to 33 of this advice on the offence’s consistency with s 25(c) of the Bill of Rights Act. Clause 211 is restricted to matters contained in the Bill and to people operating under the standards imposed by the Act. It does not prevent a person from advertising or from expressing genuinely held opinions. For these reasons, we have concluded that, if cl 211 of the Bill limits freedom of expression, that limitation can be justified.
    

Compelled Expression

14. Clause 256 of the Bill empowers the chief executive to direct people operating under the Act to make statements for the purpose of protecting the public. The chief executive may require the statement to include the nature of the problem, the remedy and the way in which the person will prevent the problem arising in the future. The chief executive may also specify who must publish the statement as well as where and when the statement must be published.
15. 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. [5] Clause 256 could therefore limit freedom of expression by requiring persons operating under the Act to make certain statements. The statements that could be required under cl 256 are likely to be statements of fact rather than ideas or opinions. However, if freedom of expression is infringed by cl 256, in our view it can be justified on the basis that the objective of the provision is to ensure public safety. The measure is rationally and proportionately connected to that objective because cl 256 (i) expressly provides that the chief executive’s direction must be for the purpose of protecting the public and (ii) narrowly prescribes the scope of any directions.
    

Search and Seizure

16. Section 21 provides the right to be secure against unreasonable search and seizure. There are two limbs to the s 21 right. First, s 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, s 21 protects only against those searches or seizures that are "unreasonable" in the circumstances.

Regulatory Inspection Power

17. Clauses 266 to 277 of the Bill empower a food safety officer to enter certain places without a warrant, including places where a food business operates or where a person intends to operate a food business, in order to determine whether the owner or operator of that place is complying with the requirements of the Act. The powers of the officer include copying documents, taking samples, and seizing food or associated things that the

officer reasonably believes are not compliant with the Act’s requirements.

18. This power is consistent with a regulatory power of inspection. Individuals and organisations that operate 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. The officer exercising the power of entry under cl 277 must:
    

• give the owner or occupier reasonable notice of the officer’s intention to enter (unless doing so would defeat the purpose of entry);
• enter at a reasonable time; and
• produce evidence of the officer’s appointment.
  

It is unusual for a regulatory inspection power without a warrant to include dwellinghouses and marae. Such places carry a greater expectation of privacy and a warrant will usually be required, even for a regulatory inspection. Following discussions with the New Zealand Food Safety Authority, we are satisfied that the provision is necessary to ensure consistent regulation of food businesses which operate out of dwellinghouses and marae as well as solely commercial premises.

Clause 277 of the Bill carefully prescribes the power to enter a dwellinghouse or marae by restricting the power to the specific place where the food business is carried out and the places necessary to get to that place. The officer must still obtain a warrant in order to carry out an inspection of dwellinghouses or marae where no food business operates, but where the officer suspects there might be relevant documents or where these places are adjoining or near a food business.

Power to Search under Warrant

Clause 296 of the Bill empowers a police officer or food safety officer to enter and search a place under a warrant. The officer may:

• use reasonable force to enter the place and break open anything;
• search for, inspect, and seize food;
• make electronic copies of documents or information; and
• photograph food or an associated thing.
  

The powers of entry, search, and seizure appear to be reasonable for the purposes of s 21 of the Bill of Rights Act. The issuing officer may only issue a warrant under cl

293 of the Bill if satisfied that there are reasonable grounds for believing that there is, at the place, anything that relates to or is evidence of an offence against the Act.

The search must be executed within 14 days of the warrant being issued, at a time that is reasonable in the circumstances and in accordance with any conditions of the warrant. If a warrant is executed at a marae, it must be exercised in a way that takes account of the kawa of the marae so far as practicable in the circumstances.

Presumption of Innocence

Section 25(c) of the Bill of Rights Act affirms 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. [6]

Strict Liability Offences in the Bill

The Bill contains several strict liability offences. Strict liability offences raise a prima facie issue of 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. In the case of strict liability offences, a defendant who is unable to prove the defence, or disprove a presumption, could be convicted even if reasonable doubt exists as to her or his guilt.

We have identified the following strict liability offences in the Bill:

• failing to comply with requirements relating to advertising (cl 211 described above);
• selling food imported for personal consumption, selling food for human consumption imported on the basis it is not for human consumption, or importing food for sale without being a registered importer, or complying with the requirements under the Bill (cl 207);
• breaching or failing to comply with:
  • various duties under the Bill (cl 212);
  • a suspension notice or a direction given by the chief executive or by a food safety officer (cl 213);
  • an order made by a Court under the Bill (cl 214); and
  • a requirement of the Bill (cl 215).
• providing false or misleading information, or failing to provide documentation (cl 198);
• misrepresenting food or failing to comply with requirements relating to identifying food (cl 200);
• falsifying, suppressing or tampering with samples (cl 202); and
• making false or misleading statements (cl 204).

We consider the following factors in assessing whether a departure from s 25(c) can be justified under s 5 of the Bill of Rights Act:

• the nature and context of the conduct to be regulated;
• the ability of the defendant to exonerate themselves; and
• the penalty level.
  

Nature of the Conduct

The courts have generally accepted that there is a distinction between "truly criminal offences" and offences that are considered to be in the realm of "public welfare regulatory offences". [7] A reversal of the onus of proof is generally considered to be more easily justifiable for regulatory 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. [8] In this case, the Bill imposes obligations on those who participate in the food industry in order to ensure that food is safe and suitable for human consumption. The offences therefore fall into the category of public welfare regulatory offences.

Ability of Defendants to Exonerate Themselves

The Bill contains several defences which are relevant to the ability of the defendant to exonerate him or herself. Clauses 222 and 223 of the Bill make it a defence to prove that the breach or failure was due to the act or omission of another person, an accident, or some other cause outside the defendant’s control and the defendant took all reasonable precautions to avoid the breach or failure. Clause 223 of the Bill also makes it a defence for offences relating to advertising to prove that the defendant carries on a publishing business and published the advertisement in the ordinary course of business. This defence does not apply if the defendant was informed (or ought reasonably to have known) that publication would constitute an offence, or the defendant is involved in the food business for which the advertisement was published.

Clause 224 provides a defence to some strict liability offences where the defendant bought the food in reliance on a statement as to the nature of the food and that if the food had conformed to the statement its sale would not have constituted an offence. Clause 226 makes it a defence in certain prosecutions to prove that the food was in a condition that would not have given rise to the offence when it left the defendant’s possession, the defendant gave notice that the food was not intended for human consumption or that alterations were made to the label or package after it left the defendant’s possession.

We also note that cls 233 to 236 of the Bill include several presumptions which apply to strict liability offences:

• a sample of food is presumed to be a representative sample;
• the contents of a package is presumed to conform to the package label;
• food found in a place used for the sale of food is presumed to be for sale; and
• information sent electronically is presumed to be from a particular person if it has that person’s signature on it or identifies that person in some other way.

It is arguable whether these presumptions engage the presumption of innocence because the matter to be proved (or disproved) does not, in itself, constitute an element of an offence, and the presumptions could favour the defendant.

Nevertheless, the presumptions could have the effect of requiring a person to prove a particular fact in order to escape liability.

Strict liability offences can be more easily justified where the offence turns on a particular matter that is peculiarly within the knowledge of the defendant. In such cases, it is easier for the defendant to explain why he or she took (or failed to take) a particular course of action than it is for the Crown to prove the opposite. For the specified offences in this Bill, taking into account the nature of the defences that are available and the regulatory environment in which they are operating, we consider that the matters defendants are required to prove (in general terms, why they failed to comply with the necessary regulatory requirements) are matters that are peculiarly within their knowledge.

Penalty Level

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. As a general principle, strict liability offences should carry penalties at the lower end of the scale. The strict liability offences in this Bill impose maximum fines of $20,000 to $75,000 for an individual or $100,000 to $300,000 for a body corporate. Given that the offences in the Bill involve an element of public safety, we consider them to be appropriate for strict liability offences.

Conclusion on Strict Liability

Taking into account the nature of the conduct being regulated, the ability of the defendants to exonerate themselves and the penalty levels, the strict liability offences set out in the Bill appear to be justified.

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

Footnotes:

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

2. Irwin Toy Ltd v A-G (Quebec) (1989) 58 DLR (4th) 577 (SCC).
3. RJR-MacDonald Ltd v Attorney General of Canada (1995) 127 DLR (4th) 1; see on this point the dissenting judgment of La Forest J

4. Richard Claydon & Hugh Tomlinson The Law of Human Rights (Oxford University Press, Oxford, 2000), Vol.1, 15.171 – 15.176
5. Slaight Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard

[1977] USSC 59; 430 US 705 (1977).

6. R v Wholesale Travel Group 84 DLR (4th) 161, 188 citing R v Oakes [1986] 1 SCR 103
7. Civil Aviation Authority v MacKenzie [1983] NZLR 78
8. 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 Food 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.