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Biosecurity Law Reform Bill (Consistent) (Sections 5, 14, 21, 22, 25(c)) [2010] NZBORARp 87 (15 November 2010)

Last Updated: 27 May 2020

Biosecurity Law Reform Bill

15 November 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: BIOSECURITY LAW REFORM BILL

1. We have considered whether the Biosecurity Law Reform Bill (PCO 14587/1.5) (“the Bill”) is consistent 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 Thursday, 18 November 2010.

2. This Bill is an omnibus Bill that amends the Biosecurity Act 1993, the Maritime Transport Act 1994, the Wild Animal Control Act 1977 and the Wildlife Act 1953. It is intended that the Bill will be divided into four separate Bills at the Committee of the Whole House stage.

3. The purpose of this Bill is to provide for:


• clearer roles and responsibilities and improved collaboration and partnerships

through making New Zealand’s biosecurity the responsibility of central and local Government, the trade and travel industry, domestic industries with natural resource interests and other stakeholders, and

readiness and incursion response, allowing industry expertise to be brought to the decision-making table. The Bill will also ensure that industry’s priorities for expenditure are made clearer.

• We have concluded that the Bill appears to be consistent with the Bill of Rights Act.

In reaching that conclusion we have considered potential issues of inconsistency with ss 14 (right to freedom of expression), 21 (right to be secure against unreasonable search and seizure), 22 (liberty of the person) and 25(c) (right to be presumed innocent). Our analysis is set out below.

Right to Freedom of Expression

• Section 14 of the Bill of Rights Act protects the right to “freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and any form.”

Right to be Secure Against Unreasonable Search and Seizure


• cl 30 substitutes new s 35 which provides that a person in a biosecurity control

area must answer questions of an inspector, allow an inspector to examine goods and provide their passport or evidence of identity

• cl 48 substitutes new s 120 which provides for the power to intercept risk goods.


105E and 105F appear to provide for a reasonable manner of execution of the search

in terms of requiring it to be done at a reasonable time and requiring that the auditor must provide certain information to an occupier.

Liberty of the Person

• Section 22 of the Bill of Rights Act provides that “everyone has the right not to be

arbitrarily arrested or detained”.

• We note that a person will be detained within the meaning of s 22 of the Bill of

Rights Act if, amongst other things, there are statutory restraints on a person’s movements. However, only those restraints that amount to a “substantial intrusion on personal liberty” will trigger the concept of detention for Bill of Rights purposes. [3]

• We consider that the other powers of detention in new ss 107 and 107B fall

within the ambit of s 22 of the Bill of Rights Act, however we do not consider that the provisions could be interpreted as authorising “arbitrary detentions”. The New Zealand Court of Appeal has stated that a detention is arbitrary when it is capricious, unreasoned, without reasonable cause: if it is made without

reference to an adequate determining principle or without following proper procedures. [4] For this reason arbitrariness should not be equated with “against the law”, but should be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.

• Applying these standards to the present case, we consider that new ss 107 and

107B clearly set out the circumstances in which the power may be used, who may affect the detention and how long a person may be held. The ability to detain persons who are arriving in or departing New Zealand who are suspected on reasonable grounds to have uncleared or unauthorised goods, or for public health or law enforcement purposes, is both necessary and reasonable.

The Right to be Presumed Innocent


• Statutory defences reverse the onus and place the burden of proof on the

defendant (i.e. he or she must prove, on the balance of probabilities, the defence). Because the burden is reversed, a defendant who is able to raise doubt as to his or her fault but is not able to prove this to the standard of the balance

of probabilities, absence of fault, or “reasonable excuse” would be convicted. This is contrary to the presumption of innocence captured by s 25(c) of the Bill of Rights Act because the defendant may be convicted even though reasonable doubt exists as to his or her guilt.

• The provisions that create strict liability offences or statutory defences are set out at new ss 154G, 154K, 154M, and 154N as inserted into the Biosecurity Act by cl 63 of the Bill.

• A person can avoid liability for paying a fine under the cl 63 offences (up to

$500,000 for an individual, or if a body corporate the greater of $10,000,000 or an amount calculated on their turnover or value of commercial gain from the infringing act) where they can show that the failure was necessary for the purpose of saving or protecting life or health, preventing serious damage to property, or avoiding an actual or likely adverse effect on a natural and physical resource or human health.

• New s 154M is both a strict liability offence and contains a reverse onus defence.

New s 154M creates the offence of failing to answer, or giving an incorrect answer to a question put under s 105D(3) (where the Director-General has given the person a notice to appear before an auditor to answer questions). New s

154M contains a defence where the person proves that he or she did not have the information required to answer the question, or where the act that is the subject of the prosecution was due to the act/omission of another person, or was an accident, or some other cause outside the defendant’s control, and the defendant took all reasonable precautions to avoid the commission of the offence.

• New s 154N creates strict liability offences for failing to comply with certain

provisions of the Bill. It is a defence to a s 154N offence if the defendant proves that the offence was due to an act or omission of another person, an accident, or other cause outside their control, and that they took all reasonable precautions to avoid the commission of the offence.

where that person has failed to comply with certain provisions of this Bill.

Is this a justified limit under s 5 of the Bill of Rights Act?


(a) does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?

(b) If so, then:

i. is the limit rationally connected with the objective?

ii. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?

iii. is the limit in due proportion to the importance of the objective?


5 of the Bill of Rights Act:

(a) the nature and context of the conduct to be regulated

(b) the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person; and

(c) the penalty level.


critical to New Zealand’s prosperity and way of life as, more than any other developed country, New Zealand depends on the success of its primary industries and the biosecurity system that underpins them.

• Providing penalties to incentivise compliance with New Zealand’s biosecurity

system appears to be a sufficiently important purpose.

Bill relate to public welfare regulatory matters which result only in fines, and that

any reason for a failure to meet the required standard of care or behaviour is likely to be peculiarly within the knowledge of the defendant. As such, we consider that the offences are rationally connected to the Bill’s objective.

• Further, there are statutory defences provided in the Bill and it appears that it

would be possible and practical for a defendant to make out a defence as provided. The availability of practical defences limits the impairment of the right to be presumed innocent. We consider that as these strict liability offences are of a public welfare regulatory nature and relate to matters that are peculiarly

within the knowledge of the defendant, reversing the onus is justified.

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. RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th)

2. [1989] 1 SCR 927

3. Police v Smith & Herewini [1993] NZCA 585; [1994] 2 NZLR 306, 316 (CA) (Richardson J)

4. Neilsen v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433 (CA) para 34

5. 84 DLR (4th) 161, 188 citing R v Oakes [1986] 1 SCR 103

6. See s 67(8) of the Summary Proceedings Act 1956

7. The proportionality test under s 5 of the Bill of Rights Act, as applied in Hansen v R [2007] NZSC 7 [123], draws on the test articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713 and R v Chaulk [1990] 3 SCR 1303. See for example, Hansen, at [42] per Elias CJ; [64] and

[79] per Blanchard J; [103], [104] and [120]-[138] per Tipping J; [185] and [217] per

McGrath J; and [272] per Anderson J.

8. See, for example, Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264, and R

v Wholesale Travel Group

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 Biosecurity Law Reform 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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