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Geneva Conventions (Third Protocol - Red Crystal Emblem) Amendment Bill (Consistent) (Section 14) [2010] NZBORARp 5 (5 March 2010)

Last Updated: 5 May 2019

Geneva Conventions (Third Protocol—Red Crystal Emblem) Amendment Bill

5 March 2010 ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

GENEVA CONVENTIONS (THIRD PROTOCOL—RED CRYSTAL EMBLEM) AMENDMENT BILL


  1. We have considered whether the Geneva Conventions (Third Protocol—Red Crystal Emblem) Amendment Bill (PCO 14047/5.0) (“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, 18 March 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 this conclusion we considered a potential inconsistency with s 14 (freedom of expression) of the Bill of Rights Act.

PURPOSE


  1. The Bill amends the Geneva Conventions Act 1958 and the Flags, Emblems, and Names Protection Act 1981 in order to implement New Zealand’s obligations under the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (the Third Protocol), signed by New Zealand on 19 June 2006. The Third Protocol establishes a new Geneva Conventions emblem (the Red Crystal) for use alongside the Red Cross and the Red Crescent.

BILL OF RIGHTS ACT ISSUES


  1. 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.
  2. Section 8 of the Geneva Conventions Act 1958 prohibits the use of protected emblems, without the permission of the Minister of Defence. Clause 5 amends s 8(1) by extending this protection to include the Red Crystal emblem. It also increases the maximum penalty for an offence against s 8 from $1,000 to $10,000.
  3. Clause 8 amends Schedule 3 of the Flags, Emblems, and Names Protection Act 1981 to ensure that the protection given to the Red Crystal emblem is unaffected by that Act.
  4. In our view, criminalising the unauthorised use of the emblem constitutes a restriction on the freedom of expression.
  5. Nonetheless, the restriction on the freedom of expression in this Bill appears to be justified in a free and democratic society under s 5 of the Bill of Rights Act. The

International Red Cross is a respected organisation. It is an independent, impartial humanitarian network which aims to provide assistance during times of conflict and natural disasters. Emblems associated with this organisation, namely those contained in the Geneva Conventions Act 1958, are internationally recognised and have a special place in the laws of war.

  1. The Red Crystal emblem may be used as a protective symbol in armed conflicts where neither the Red Cross nor the Red Crescent would be seen as a neutral symbol. We have, therefore, concluded that the restriction in cl 5 of the Bill is for an important and significant objective.
  2. We also consider that the restriction falls within a reasonable range of alternatives for furthering that objective. In particular, we note that cl 5 does not impose an absolute prohibition on the use of the Red Crystal emblem. The Minister of Defence or a person authorised by him in writing may authorise the use of the emblem. Where a trade mark exists before the emblem becomes included in the Act,

restrictions on the emblem’s use under s 8(1) to (3) do not apply by reason only of the trade mark reproducing or resembling the emblem. Furthermore, a person can only be prosecuted under s 8 with the leave of the Attorney-General.


CONCLUSION


  1. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed by 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

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 Geneva Conventions (Third Protocol—Red Crystal Emblem) 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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