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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
- 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.
- 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
- 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
- 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.
- 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.
- 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.
- In
our view, criminalising the unauthorised use of the emblem constitutes a
restriction on the freedom of expression.
- 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.
- 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.
- 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
- 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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