You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2010 >>
[2010] NZBORARp 87
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
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:
- more effective
and efficient risk management through interventions targeted at areas of
greatest risk and greater use of technology,
allowing the Ministry of
Agriculture and Forestry (“MAF”) to clear goods and passengers more
efficiently at the border
and cutting costs by reducing the number of supply
chain delays
• 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
- the ability to
handle future change and improvements to biosecurity risk management by ensuring
that MAF can use electronic systems
rather than manual processing at the border
which will enable MAF to automate certain biosecurity functions and take
advantage of
new technologies in the future.
- The Bill will
also allow the responsible Minister to establish a National Policy Direction to
manage harmful organisms in the best
possible way and ensure that costs of
activities are aligned where necessary.
- The Bill creates
specific duties for importers so that they will consider the overall biosecurity
risk posed by their goods, rather
than just how to meet the requirements for
border clearance. The Bill also allows for MAF to enter into an agreement with
industry
groups that provides for joint decision-making and cost sharing
for
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.
- The amendments
to the Maritime Transport Act provide for ballast water discharges to be managed
and therefore allow New Zealand to
ratify the International Convention for the
Control and Management of Ships’ Ballast Water and
Sediments.
- This Bill amends
the Wild Animal Control and Wildlife Acts to remove the requirements for
regional councils managing pests to meet
additional regulatory burdens that are
no longer appropriate.
• 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.”
- Clause 30 of
this Bill substitutes new s 35 into the Biosecurity Act, which will require a
person in a biosecurity control area to
answer all questions asked by an
inspector relating to their personal details or a matter the inspector requires
for the purpose
of exercising a power, function or duty. This may raise freedom
of expression issues because the right also extends to the freedom
to not say
certain things. [1] Similarly, cl 42 inserts new s 105E into the
Biosecurity Act, which will require a person subject to an audit to answer an
auditor’s
questions.
- We consider that
the information required by these provisions is not sufficiently expressive to
attract the protection afforded by
s 14. In reaching this view we note (while
acknowledging the minor differences between s 14 and s 2(b) of the Canadian
Charter) the
decision of the Supreme Court of Canada in Irwin Toy Ltd v
Attorney General (Quebec) [2] that “expression” has both
a content and a form, and the two can be inextricably connected. Activity is
expressive if
it attempts to convey a meaning. That meaning is its content.
Here, the requirement to provide information that is purely factual
and only in
relation to biosecurity issues rather than matters of opinion, does not appear
to be sufficiently “expressive”
in content to attract the protection
of s 14.
- In any event,
given the legitimate interest of a State to protect its borders we consider that
the limits placed on the right to freedom
of expression by this Bill are
justified in terms of s 5 of the Bill of Rights Act.
Right to be Secure Against Unreasonable Search and
Seizure
- Section 21 of
the Bill of Rights Act 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.
- The Bill
contains several amendments to the Biosecurity Act relating to powers to search
and inspect goods. These include:
- cl 27 provides
that an inspector may require a person arriving in New Zealand to surrender
uncleared imported risk goods and make
a declaration about their personal and
travel details and the goods in their
possession
• 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 42 inserts
new s 105E which provides that an auditor may enter any place of business where
any document, activity or thing of relevance
to the audit is, or is likely to
be, held. The auditor may examine the thing, activity or document and take
samples or copies, test
or analyse it, including removing documents or records
to another place for the purpose of copying them. It also requires a person
who
has knowledge/control to reproduce information in a usable form from a device or
system. This section expressly states that it
does not override the privilege
against self-incrimination
- cl 42 inserts
new s 105F which provides that an auditor may enter a place of business within
or outside business hours, but only at
a reasonable time, and must either
identify him or herself or leave a prominent notice at the place advising of the
day and time
of entry and stating the auditor’s name. The auditor must
prepare a schedule specifying anything taken from the place and where
it is to
be held, and provide a copy of this to the occupier within 7 days
- cl 46 inserts
new s 116A which provides that an inspector may seize and detain goods or
documents with reasonable grounds to suspect
they are evidence of the commission
of 1 or more offences under other enactments. The inspector must deliver the
goods or documents
as soon as practicable to a constable or appropriately
authorised officer, and
• cl 48 substitutes
new s 120 which provides for the power to intercept risk goods.
- We consider that
the search and seizure powers contained in these provisions appear to be for
legitimate and appropriate purposes
and are therefore reasonable in terms of s
21 of the Bill of Rights Act. In particular, the provisions under new
ss
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.
- It should also
be noted that reasonable expectations of privacy may not be so high when a
person engages in a highly regulated industry,
such as the importation of goods
or international travel. Effective regulation may legitimately require making
available substantial
amounts of business-related information. It may be argued
that people have lower expectations of privacy when crossing, or bringing
items
across, borders than they do at other locations.
- We also note
that judicial review is available as a means to question the lawfulness of a
particular search and seizure. If the seizure
is found to be unreasonable, the
Court can order the return of the unlawfully seized goods or documents.
- For these
reasons, we consider that the search and seizure powers in this Bill appear to
be reasonable for the purposes of s 21 of
the Bill of Rights
Act.
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”.
- Clause 43
substitutes new s 107 which provides for the power of an inspector to detain a
person for the purpose of checking goods.
This applies where the inspector
suspects on reasonable grounds that a person may be in possession of uncleared
or unauthorised goods.
The inspector may detain a person for a reasonable
period, no longer than 4 consecutive hours, and may use force that is reasonably
necessary in doing so.
- New s 107A
provides for the power to detain a person for the purpose of processing
entry.
- New s 107B
provides for the power to detain a person for public health or law enforcement
purposes where an inspector has reasonable
cause to suspect the person is liable
to be detained, arrested, or prosecuted, has contravened a specified Act, or is
endangering
or threatening to endanger the life, health or safety of a person or
group of persons. The inspector may detain the person for a
period that is
reasonable in the circumstances and no longer than 4 consecutive
hours.
• 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, although a person’s movement is constrained by the requirement that
they remain in a certain place only for
the purpose of processing their entry
under new s 107A, this does not amount to a detention. The power to require
persons to remain
at their place of arrival (or departure) ensures compliance
with border processing requirements which assists the proper functioning
of the
border. It cannot be said that this provision imposes a substantial intrusion on
personal liberty.
• 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.
- We also took
account of the fact that the detention powers are for certain purposes and can
only be exercised where there is reasonable
cause. The period of detention is
also restricted to what is reasonably necessary and in any event to not more
than 4 consecutive
hours. We consider these to be reasonable safeguards against
arbitrary detention. As such, we do not consider that the powers of
detention in
this Bill are arbitrary in terms of s 22 of the Bill of Rights Act.
The Right to be Presumed Innocent
- Section 25(c) of
the Bill of Rights Act provides for “the right to be presumed innocent
until proved guilty according to law”.
In R v Wholesale Travel Group
[5] the Supreme Court of Canada held that the right to be presumed
innocent requires than an individual must be proven guilty beyond
reasonable
doubt and that the state must bear the burden of proof.
- The Bill
contains several strict liability offences and statutory defences that place an
onus on the defendant. [6]
- In strict
liability offences, once the Crown has proved the actus reus, the defendant can
escape liability by proving, on the balance
of probabilities, either the common
law defence of total absence of fault or a similar statutory defence, such as
“without
reasonable
excuse”.
• 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.
- To avoid
liability under the new sections, the defendant’s conduct also has to have
been reasonable in the circumstances and
the defendant must have taken all
reasonable steps to mitigate or remedy the effects of the failure. A further
defence is available
where the failure was due to an unforeseen event beyond the
defendant’s control and they could not have reasonably taken steps
to
prevent the event but took reasonable steps to mitigate or remedy the effects of
the failure; or where the defendant did not know
and could not reasonably have
known of the failure.
• 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.
- The reverse onus
provision in new s 154K provides that a person is liable in damages if the
person causes loss or damage through failing
to comply with certain provisions
of this Bill. New s 154G provides that the Director-General may apply to the
High Court for an
order that a person pays a pecuniary penalty
where
that person has failed to comply with certain provisions of this Bill.
- We consider that
these offence provisions prima facie limit the right to be presumed
innocent.
Is this a justified limit under s 5 of the Bill of Rights
Act?
- Where a
provision is found to be prima facie inconsistent with a particular right or
freedom, it may nevertheless be consistent with
the Bill of Rights Act if it can
be considered a "reasonable limit" that is justifiable in terms of section 5 of
that Act. Following
the guidance of the New Zealand Supreme Court decision of
Hansen v R, the s 5 inquiry may be summarised as: [7]
(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?
- In addition to
the factors listed above, we consider the following factors are relevant in
assessing whether the strict liability
offences can be justified under
s
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.
- The objective of
the previously identified strict liability or reverse onus provisions is to
provide penalties for failure to comply
with New Zealand’s biosecurity
regime. The Ministry of Agriculture and Forestry advises that biosecurity
is
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.
- The limit on the
right to be presumed innocent can be said to be rationally connected to the
integrity of New Zealand’s biosecurity
system in terms of the creation of
strict liability offences, as reversing the onus may be an appropriate way to
deter offending
and/or hold people accountable for their failure to comply.
- The offences
relate to certain activities that require the participant to display a level of
care where failure to display that care
may lead to harm to the public.
Reversing the onus can be justified where the penalty faced is at the lower end
of the scale and
where the information that goes to the defence is peculiarly
within the knowledge of the defendant. [8] We consider that the offences
in the
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.
- We consider that
the creation of these reverse onus offences minimally impair the right to be
presumed innocent as the penalties are
towards the lower end of the spectrum in
that they result only in fines, albeit the maximum level of fine available is
relatively
high.
- The maximum
penalty of $500,000 in s 154H is consistent with similar provisions regarding
pecuniary penalties in the Hazardous Substances
and New Organisms Act 1996. We
understand that one of the key factors behind taking a pecuniary penalty
proceeding instead of criminal
proceedings is where the defendant has made
significant financial gains from their offending or where there are economic
incentives
to offend.
• 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.
- Given the stated
importance of New Zealand’s biosecurity system and that the limit on the
right to be presumed innocent is considered
to be only minimally impairing, we
consider that these provisions are in due proportion to the importance of the
objective they are
intended to serve.
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.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2010/87.html