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Misuse of Drugs Amendment Bill (Consistent) (Sections 5, 25(c)) [2010] NZBORARp 7 (12 March 2010)

Last Updated: 5 May 2019

12 MARCH 2010

ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: MISUSE OF DRUGS AMENDMENT BILL

1. We have considered whether the Misuse of Drugs Amendment Bill (“the Bill”), a Government Bill, is consistent with the New Zealand Bill of Rights Act 1990 (“Bill of Rights Act”). The Cabinet Legislation Committee will consider the Bill on 18 March 2010.
   
2. We have concluded that the Bill appears to be inconsistent with the rights and freedoms affirmed in the Bill of Rights Act. We have consulted with the Crown Law Office in the preparation of this advice and it agrees with that conclusion.
   

PURPOSE OF THE MISUSE OF DRUGS AMENDMENT BILL

3. The Bill amends the Misuse of Drugs Act 1975 (“the Act”) to reclassify ephedrine and pseudoephedrine as Class B2 controlled drugs.
   
4. Ephedrine and pseudoephedrine are currently available over the counter in the form of cold and flu tablets like Codral, Actifed and Sudafed. Pseudoephedrine is an essential ingredient for the production of methamphetamine. Ephedrine can be converted into pseudoephedrine.
   
5. The Bill will make ephedrine and pseudoephedrine available only with a prescription from a medical practitioner. The Bill will also establish that possession of 10 or more grams of ephedrine or pseudoephedrine will be presumed to be for supply (whether or not that ephedrine or pseudoephedrine is contained in a substance, preparation, or mixture). It is an offence under the Act for a person to have in their possession a Class B controlled drug for the purpose of supply. The offence is punishable by imprisonment for a term not exceeding 8 years. Exemptions from the offence apply for chemists and other legitimate suppliers.
   
6. The purpose of the amendment is to restrict the availability of ephedrine and pseudoephedrine to make it more difficult for potential manufacturers of methamphetamine to access its key ingredients. We consider that this proposal raises an issue of inconsistency with s 25(c) of the Bill of Rights Act.
   
7. The Bill will make other amendments to the Act and the Land Transport Act 1998 that we have concluded appear to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
   

INCONSISTENCY WITH S 25(C) OF THE BILL OF RIGHTS ACT

8. 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 the Crown to prove an accused person’s guilt beyond reasonable doubt. In general, a provision which requires an accused person to disprove on the balance of probabilities the existence of a presumed fact, that fact being an important element of the offence in question, would violate the presumption of innocence.1
   
9. Section 6(6) of the Misuse of Drugs Act provides:
   

For the purposes of [the offence of possession for supply], a person is presumed until the contrary is proved to be in possession of a controlled drug for [the purpose of supply] if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply.

10. This presumption reverses the onus of proof so that, to avoid a conviction, a defendant who is in possession of the fixed quantity of the drug in question must prove on the balance of probabilities that he or she was not in possession of the drug for supply.
    
11. The Bill creates a presumption that possession of 10 or more grams of ephedrine or pseudoephedrine is for the purpose of supply. The presumption creates a prima facie breach of s 25(c) of the Bill of Rights Act because it imposes an obligation on an accused to prove on the balance of probabilities that he or she did not intend to supply ephedrine or pseudoephedrine.
    

JUSTIFICATION UNDER S 5 OF THE BILL OF RIGHTS ACT

12. Where a Bill is found to be prima facie inconsistent with a right or freedom in the Bill of Rights Act, it may nevertheless be found that the inconsistency is a reasonable limit that is justifiable under s 5 of that Act. The inquiry under s 5 is essentially two-fold:
    
    • Does the provision serve an important and significant objective; and
      
    • Is there a rational and proportionate connection between that objective and the provision?
      
13. In assessing the Bill under s 5 of the Bill of Rights Act we have relied on the judgment of the New Zealand Supreme Court in R v Hansen.2 In that case, a majority of the Court found the presumption in s 6(6) of the Act to be unjustified under s 5. We have also considered the advice of the previous Attorney- General on the Misuse of Drugs (Classification of BZP) Amendment Bill 2007 (“BZP advice”). The BZP advice also considered whether the presumption in s 6(6) was justified. The BZP advice concluded that the Bill appeared to be inconsistent with s 25(c) of the Bill of Rights Act and that the inconsistency could not be justified.
    

1 R v Oakes (1986) 26 DLR (4th) 200 (Canadian Supreme Court); S v Bhulwana; S v Gwadiso (1995) 2 SACR 748 (South African Constitutional Court) and R v Sin Yau-Ming [1992] LRC (Const) 547 (Hong Kong Court of Appeal)

2 R v Hansen [2007] NZSC 7

Important and Significant Objective

14. As noted above, the purpose of the amendment is to restrict the availability of ephedrine and pseudoephedrine to make it more difficult for potential manufacturers of methamphetamine to access its key ingredients.
    
15. The law in other jurisdictions appears to establish that control of the supply of drugs is a pressing social objective that might justify limitations on the presumption of innocence. In R v Oakes the Supreme Court of Canada held that the presumption of supply served a pressing social objective and that this objective was of sufficient importance to warrant overriding a constitutionally protected right or freedom in certain cases.3
    
16. A majority of the Court in Hansen also appeared to accept that controlling the risk posed to society by the supply of marijuana was a significant and important objective. The previous Attorney-General in his BZP advice also concluded that the purpose of the relevant clause - to make it illegal to possess and use, sell, supply, import, export, or manufacture BZP, and related substances - is a significant and important objective under s 5 of the Bill of Rights Act.
    
17. Accordingly, for the purposes of this advice, we have concluded that the purpose of the amendment is a significant and important objective.
    

Rational and Proportionate Connection

18. The Law Commission has suggested that the main reason for the presumption for supply in s 6(6) is that if there was no presumption, it would sometimes be difficult for the prosecution to prove that the accused was in possession of the drug with intent to supply it. The prosecution would potentially have to call expert evidence about the ordinary patterns of use of the drug in order to demonstrate that the accused possessed more of the drug than would usually be possessed by a high user. This would be time-consuming and expensive.4 The presumption may also result in more convictions of people who intentionally supply ephedrine or pseudoephedrine to makers of methamphetamine. It may also create a stronger deterrent for people contemplating supplying ephedrine or pseudoephedrine to makers of methamphetamine.
    
19. However, the presumption will apply in cases where people possess 10 or more grams of ephedrine or pseudoephedrine for purposes other than facilitating the production of methamphetamine. This may result in people being wrongly convicted.
    
20. In Hansen, a majority of the Supreme Court held that the presumption in s 6(6) is inconsistent with s 25(c) of the Bill of Rights Act and is not a justified limitation under s 5 of that Act. Elias CJ doubted whether a reverse onus provision could ever be justified.
    

3 See also S v Bhulwana and R v Sin Yau-Ming [1992] LRC (Const) 547

4 Law Commission, Controlling and regulating drugs, Issues Paper 16, published 11 February 2010.

21. In its issues paper discussing s 6(6) the Law Commission did not support the retention of s 6(6) and concluded that the difficulties associated with any attempt to achieve a reverse onus provision that is consistent with the Bill of Rights Act outweigh its possible advantages.5
    

Reasonable limitation on the right to be presumed innocent

22. One of the reasons why the Court in Hansen considered that the presumption was not justified under s 5 of the Bill of Rights Act was because there may be a method of achieving the objective in a way that would not limit the right to be presumed innocent as much as s 6(6) does. Both Tipping and McGrath JJ considered that the impairment of the right was more than reasonably necessary because of the possibility of an evidential onus. As Tipping J said:6
    

It seems to me that a presumption rebuttable in terms of an evidential onus does put the Crown in a materially better position than if there was no presumption at all... I have not been persuaded that the level of forensic advantage likely to be derived by the Crown from this more easily rebutted presumption would fail to sufficiently serve the overall objective.

23. Tipping J also considered that the presumption was not proportionate to the objective and that “an evidential onus would sufficiently serve the purpose but without the same risk of convicting innocent persons”.7
    
24. Blanchard J did not share the view that the impairment of the right was more than reasonably necessary:8
    

[In] the vast majority of cases, a requirement for an evidential burden to be surmounted ... would in practical (as opposed to theoretical) terms be no different from a requirement that the Crown discharge the onus of proving the requisite purpose of the accused beyond reasonable doubt.

25. In its issues paper Controlling and regulating drugs the Law Commission has suggested another alternative. An offence of aggravated possession could be created.9 The offence would be based on the possession of a quantity of drugs that is generally inconsistent with personal use. Such an offence would not include any reverse onus and is unlikely to infringe the right to be presumed innocent. The Law Commission tentatively preferred the aggravated possession offence over both a presumption and an evidential onus.
    
26. There is a strong possibility that either an evidential onus or an aggravated possession offence could achieve the desired objective without limiting the right to be presumed innocent more than is reasonably necessary.
    

Highly probable or nearly certain that the purpose of possession is supply

27. In obiter dictum statements the Court in Hansen suggested that a reverse onus might be justified under s 5 if it were set at a high enough level to reduce or
    

5 Law Commission, Controlling and regulating drugs, para 10.94

6 R v Hansen [2007] NZSC 7, para 128

7 R v Hansen [2007] NZSC 7, para 135

8 R v Hansen [2007] NZSC 7, para 79

9 Law Commission, Controlling and regulating drugs, para 10.95

avoid the possibility of wrongful convictions resulting from operation of the presumption. Tipping J stated:10

...it becomes crucial at what quantity of the drug the presumption is fixed. It matters whether the trigger amount is set on the basis that possession of such an amount raises a bare probability that the purpose of the possession is supply, a high probability that such is the accused’s purpose, or a near certainty. The higher the probability of supply deriving from possession of the trigger amount, the more justifiable will be a presumption of supply. The lower the degree of probability, the more problematic such a presumption becomes.

28. Anderson J observed that the presumption is most telling in cases where the quantity possessed may not give rise to the necessary inference of intent to supply.11
    
29. The judgment of the Supreme Court in Hansen suggests that the threshold required to avoid an inconsistency with the Bill of Rights Act must be so high as to make it highly probable or nearly certain that the purpose of possession is supply.
    
30. The previous Attorney-General in his BZP advice concluded that the trigger for the presumption was set too low (5 grams or 100 flakes, tablets, capsules, or other BZP forms each containing some quantity of the drug). Following dicta in Hansen the previous Attorney-General said that the threshold must be so high as to make it highly probable or nearly certain that the purpose of possession is supply. For this reason the previous Attorney-General concluded that the inconsistency with s 25(c) of the Bill of Rights Act could not be justified.
    
31. The Bill will make ephedrine and pseudoephedrine legally available to the public only via prescription. The Ministry of Health has advised that the maximum period of supply on a prescription containing pseudoephedrine will be one month. Assuming the maximum dosage of 240 milligrams over 24 hours is adhered to this creates a maximum of 7.2 grams of pseudoephedrine per prescription. Under the Bill, the presumption will apply to a person possessing two prescriptions of the maximum dosage.
    

Expert Advisory Committee on Drugs

32. We have considered the Expert Advisory Committee on Drugs’ (EACD) advice to the Associate Minister of Health and the Ministry of Health’s advice to the EACD (“the advice”). The advice did not explicitly consider the 10 gram threshold in terms of the dicta in Hansen and the former Attorney-General’s BZP advice. In its advice to the Associate Minister of Health the EACD said that the presumption for supply “would be better represented by an upper limit less likely to capture legitimate consumers holding larger quantities of [the drug].” The EACD appeared to base its recommendation on an amount of ephedrine or pseudoephedrine that is related to the presumption for methamphetamine and is more than a person with a cold or flu could reasonably use. This is quite a different standard from the need for the threshold to make it highly probable or nearly certain that the ephedrine or pseudoephedrine was possessed with intent for supply.
    

10 R v Hansen [2007] NZSC 7, para 143

11 R v Hansen [2007] NZSC 7, para 279

LAW COMMISSION REVIEW

33. As discussed above, the Law Commission is conducting a comprehensive review of the Act and is considering whether the presumption in s 6(6) should be retained. Nevertheless, we are required to assess the consistency of legislation with the Bill of Rights Act under the current law. The possibility of changes to the law in the future is a matter for Parliament to consider and does not form any part of this analysis.
    

CONCLUSION

34. Based on the analysis set out above, we have concluded that the Bill appears to be inconsistent with the right in the Bill of Rights Act to be presumed innocent until proved guilty according to law. Accordingly, we recommend that you bring the Bill to the attention of the House of Representatives pursuant to s 7 of the Bill of Rights Act and Standing Order 261. We have attached a draft report under s 7 for your consideration.
    
35. 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 Biofuel 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.