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National Animal Identification and Tracing Bill (Consistent) (Sections 5, 6, 14, 18, 21, 22, 25(c)) [2010] NZBORARp 94 (23 November 2010)

Last Updated: 27 May 2020

23 November 2010

ATTORNEY-GENERAL


LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: NATIONAL ANIMAL IDENTIFICATION AND TRACING BILL


1. We have considered whether the National Animal Identification and Tracing Bill

(PCO 14786/4.18) (‘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, 25 November

2010.

2. We have concluded that the Bill appears to be consistent with the rights and freedoms contained in the Bill of Rights Act. In reaching this conclusion, we considered potential issues of inconsistency with ss 14 (right to freedom of expression), 18 (right to freedom of movement), 21 (right to be secure against unreasonable search or seizure), 22 (right to be free from arbitrary arrest and detention) and 25(c) (right to be presumed innocent) of the Bill of Rights Act. Our analysis of these issues is set out below.

PURPOSE OF THE BILL

3. The Bill seeks to create a National Animal Identification and Tracing (NAIT) scheme that will improve the efficiency and timeliness of establishing the health status of New Zealand’s livestock population. The NAIT scheme will provide a national framework that will:


• improve biosecurity management.

4. The NAIT scheme operates on the basis that accurate and timely identification and tracing of livestock and their products can quickly limit the consequences of an animal disease outbreak or food residue problem, as well as protecting New Zealand’s current market share in premium price markets.

5. The NAIT scheme will initially only apply to cattle and deer, but is sufficiently flexible to enable other species or sub-groups of species to be added in future. NAIT is a partnership between industry and the Crown, recognising the public, private and industry good of identification and tracing.

POSSIBLE ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT Section 21 Right to be Secure against Unreasonable Search and Seizure

6. Section 21 of the Bill of Rights Act provides that:

“Everyone has the right to be secure against unreasonable search or seizure,

whether of the person, property, correspondence or otherwise.”

7. 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.

8. The Court of Appeal has said that the “touchstone” of s 21 is the protection of reasonable expectations of privacy:

"The main aim of s 21 of the Bill of Rights is to protect privacy interests. It is only where a person's reasonable expectations of privacy have been breached that a personal remedy under the Bill of Rights...is available. The reasonable expectation of privacy enjoyed by a person is to be judged largely objectively. A broad view of privacy interests should be taken [...]."1

9. The Bill provides for a wide range of inspection, search and seizure powers (with or without warrant), many of which duplicate those contained in the Search and Surveillance Bill as reported by the Justice and Electoral Committee. The overall purpose of these powers is to ascertain, secure and enforce compliance with obligations under the Bill.

10. The Bill contains the following inspection, search and seizure powers:

• to require the provision of information or production of documents, and to answer questions (cl 57)

• to enter and inspect a place without a warrant (cl 104)

• to require a person subject to a production order to provide any documents described in the order that are in the possession or under the control of the person, or that come into the possession or under the control of the person while the order is in force; or to disclose the location of those documents (cl 71)

• to ask a person to consent to undergo a search or to consent to a search being made of a place, vehicle, or other thing apparently in the control of the person (cl

78), and

• to enter, search, and seize items under a warrant made by an issuing officer, including remote access searches, use of force, and exercise of powers by persons called to assist (cls 96 to 111, 112(3)).

1 R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA) at [48] and [236]

Power requiring a person to provide information, produce documents or answer questions

11. Clause 57 states that a NAIT officer or a NAIT authorised person may require any person to

• produce information or documents

• answer relevant questions, or

• provide personal information about that individual.

12. The purpose of this power is to enable NAIT officers to establish whether persons have complied, or are complying with, their obligations under the NAIT scheme.

13. We consider that the requirement to provide information or produce documents constitutes a search for the purposes of s 21 of the Bill of Rights Act.2 However, in our view, this power does not constitute an unreasonable search under s 21 because the Bill provides appropriate safeguards, including:

• The provision of information or documents may only be required if the matters are reasonably necessary for the limited purposes listed in cl 57(2). These purposes are to determine: whether the person is registered as a person in charge of a NAIT animal; whether a person is complying with the Act or regulations/standards made under it; or whether a NAIT officer, authorised person or the chief executive should exercise powers under the Act for the purpose of ascertaining and ensuring compliance.

• The provision is subject to cl 119, which provides for a privilege against self- incrimination.

Power to enter and inspect a place without a warrant

14. Clause 104 gives a NAIT officer or a NAIT authorised person the power to enter and inspect a place without a warrant.

15. Similar to cl 57, this power seeks to enable NAIT officers to establish whether persons have complied with, or are complying with, their obligations under the NAIT scheme (e.g. whether NAIT animals have been ear tagged appropriately). In our view, the power given by cl 104 is not unreasonable for the purposes of s 21 of the Bill of Rights Act because:

• the livestock sector is heavily regulated and, as a result, the privacy expectations of industry participants would be limited in relation to the information sought by a NAIT officer or a NAIT authorised person in these circumstances

• the power to enter and search is aimed at determining whether or not a person is complying with the NAIT Act, or regulations made or standards issued under it, and

2 See New Zealand Stock Exchange v Commissioner of Inland Revenue [1992] 3 NZLR 1 (PC) and R v

Javid [2007] NZCA 232, at [45(d)].

• the Bill provides appropriate limits and safeguards for the exercise of powers.

The power may only be exercised at a reasonable time and an officer or person is not authorised to enter or inspect a dwellinghouse, marae, or a building

associated with a marae, unless the occupier consents or a search warrant has

been issued.

Production orders

16. Clause 68 gives a NAIT officer who is entitled to apply for a search warrant the power to apply to an issuing officer for a production order.3 With a production order, the NAIT officer can require a person to produce certain documents described in the order (cl 71). The purpose of this requirement is to establish whether a suspicion that an offence has been committed is well-founded, and to obtain evidential material relating to such an offence (e.g. farm records).

17. Clause 69 states that a production order can only be issued if there are reasonable grounds to:

• suspect that an offence has been, is being or will be committed, or

• believe that the documents sought by the proposed order constitute evidential material in respect of that offence and are (or will be) in the possession, or under the control, of the person against whom the order is sought.

18. We note that a production order does not affect the privilege against self- incrimination (cl 69(2)). The order is to remain in force only for the period specified in the order, which must not extend beyond 30 days after the order is made (cl 72). Moreover, if the NAIT officer retains an original document that is produced in compliance with a production order, he or she must provide the person who produced the document with a copy as soon as practicable (cl 74).

19. We further note that the Bill specifies that an issuing officer may only be a Judge or a person such as a Justice of the Peace, Community Magistrate, Registrar or Deputy Registrar (cl 53(1)). In our view, judicial oversight will provide a sufficiently independent check to prevent the unjustified exercise of this search and seizure power.

20. For these reasons, we consider that the power to apply for a production order is subject to sufficient safeguards and is, therefore, not unreasonable.

Consent searches

21. Clause 78 of the Bill provides a NAIT officer with a power to ask a person to consent to undergo a search or to consent to a search being made of a place, vehicle or other thing apparently in the control of the person. However, the officer can only exercise this power if he or she wishes to conduct a search for a specific purpose set out in this provision.4


  1. The relevant provisions in the NAIT Bill (cls 68-75) correspond to a significant degree with cls 68 to 77 of the Search and Surveillance Bill.
  2. These purposes are: to prevent the commission of an offence against the NAIT Act, to prevent injury or harm to persons or property, to investigate whether an offence against the Act has been committed,

22. Further, the exercise of this power is subject to a number of conditions and safeguards. The NAIT officer must advise the person of the reason for the proposed search and that he or she may either consent or refuse to consent to the search (cl

79). A search that is not conducted for the purposes specified in cl 78 or the

conditions set out in cl 79 will be unlawful, even if consent is given.

23. We note that cl 81 states that a person under 14 years is unable to consent to a search, unless that person is found driving a vehicle without a passenger of 14 years or older with authority to consent to the search of the vehicle. This raises questions as to whether a person under 14 years is sufficiently mature enough to understand the consequences of giving or refusing consent to a search.

24. The NAIT officer officer must, by virtue of s 6 of the Bill of Rights Act, ensure that the exercise of the search power is consistent with s 21 of that Act. Accordingly, the officer must assess whether the person under the age of 14 years is sufficiently able to understand the consequences of giving or refusing consent to a search. If this is not the case, the officer should assume the consent has been refused.

25. For these reasons, we consider that the power of a NAIT officer to ask a person to consent to undergo a search is not unreasonable under s 21 of the Bill of Rights Act.

Search and related powers under warrant

26. The Bill provides a wide range of powers to a person carrying out a search warrant, including the power to:5

• enter and search a place, vehicle or other thing; and any item or items found in that place or vehicle or thing

• request a person to assist with the entry and search6

• use any force in respect of any property

• seize any thing that may lawfully be seized

• access and copy intangible material from a computer system or other data storage device located at the place, vehicle or other thing searched

• in case of a search warrant authorising a remote access search, access and copy material from the thing being searched, use reasonable measures to gain access to the thing and create a copy of material in the thing

• require a specified person to provide access information and other information or assistance to access data held in a computer system or other storage device that is located in the place or the vehicle or other thing being searched

or any purpose in respect of which the NAIT officer could exercise a power of search conferred by this

Act, if he or she held a particular belief or suspicion specified in this Act.

5 See, inter alia, cls 96, 97, 107 and 111 of the Bill.

6 Clause 99 describes which powers may be exercised by persons called to assist a person exercising a search power. We note that these persons are subject to the control of the person with the overall responsibility for exercising the power (subs (1)). This person must also accompany the assistant on the first occasion when the assistant enters the place (etc) and provide such other supervision as is reasonable in the circumstances (subs (4)).

• enter and search a vehicle, and enter any place where the person has reasonable grounds to believe that the vehicle is, for the purpose of locating it and searching it, and

• search a person (by a constable only).7

27. Although these powers are broad, the Bill contains a number of procedural and other safeguards relating to, inter alia:

• the application for a search warrant

• the circumstances in which a warrant may be issued (e.g. only if there are reasonable grounds to suspect an offence has been, is being or will be committed, or to suspect that the search will find evidence in respect of the offence)

• conditions attached to executing a search warrant (e.g. time of execution)

• retention of seized items

• the use of force in relation to property (e.g. only when reasonable, not to be applied to persons), and

• the responsibility of the person exercising the search power for the person called to assist him or her.

28. The Bill also recognises a number of privileges, including legal professional privilege, privilege for communications with legal advisers or ministers of religion, or privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists (cl 117). The Bill also recognises the privilege against self- incrimination as described in s 60 of the Evidence Act 2006.8

29. Further, cl 122 provides that if a search warrant authorises the search of materials held by a lawyer, the warrant may not be executed unless the lawyer, a representative of the lawyer, or a person appointed by the New Zealand Law Society is present. The person executing the warrant must give the lawyer, representative or appointed person the opportunity to claim privilege on behalf of the lawyer’s client or make an interim claim of privilege if instructions have not been obtained from the client.

30. Clause 123 of the Bill provides similar requirements for a search warrant authorising the search of material held by a minister of religion, medical practitioner or clinical psychologist.

31. We have, again, noted that the majority of provisions providing for search and seizure powers under warrant, as well as the conditions for issuing and executing search warrant and other safeguards, correspond to a large degree with those provided in the Search and Surveillance Bill.

7 Clause 110(1) of the Bill.


  1. See, cl 119. See also, cl 111(3) to (5): the privilege does not extend to a right to refuse assistance in accessing a computer system where that assistance is not itself incriminating.

32. Consistent with the Crown Law Office advice on that Bill, and taking into account the considerations in paragraphs 11 to 15 of that advice, we have concluded that the search and related powers under warrant are not unreasonable under s 21 of the Bill of Rights Act.

Section 22 – Right to be free from arbitrary arrest and detention

33. Section 22 of the Bill of Rights Act provides that "everyone has the right not to be arbitrarily arrested or detained."

34. The Court of Appeal has said that a detention is arbitrary if it is "capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures."9

35. The Bill contains a number of detention powers which we have considered for consistency with s 22 of the Bill of Rights Act.

36. Clause 96(d) authorises certain persons exercising a search warrant to detain any person who is at the place or in the vehicle or other thing being searched, or who arrives there while the search is being undertaken.

37. The purpose of this power is to enable the person exercising the power to determine whether the detained person is connected with the object of the search. We note that this power may only be exercised for a reasonable period, subject to any conditions imposed by the officer issuing the search warrant (cl 101(1)(a)), and that the provisions relating to privilege also apply (cl 101(1)(b)).

38. Under cl 105, a NAIT officer or NAIT authorised person may stop a vehicle to conduct a search under a warrant. If a NAIT officer exercises a power to stop, the officer may require the vehicle to remain stopped (cl 108). If a person fails to stop as soon as practicable when required to do so, or fails to remain stopped, and knows or ought reasonably to know that the person exercising the power is a NAIT officer, the person commits an offence (cl 130). A constable may arrest without warrant any person who he or she has reasonable grounds to suspect has committed such an offence (cl 130(4)).

39. The purpose of these powers is to ascertain compliance with obligations under the Bill, for example, to check whether animals subject to the NAIT scheme that are being transported have been fitted with an appropriate ear tag. The NAIT officer may also want to check whether the transporter or driver meets other obligations under the Bill. We note that after stopping the vehicle the NAIT officer must immediately identify himself or herself to the driver, inform the driver of the officer’s authority to stop the vehicle, and produce evidence of his or her identity if the driver requests it (cl 109). The officer may only require the vehicle to remain stopped for as long as is reasonably necessary to undertake the search (cl 108).

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

40. Clause 110 authorises a constable to detain a person to carry out a search of that person if the constable suspects10 that he or she has knowingly accessed, without the permission of the individual concerned or in breach of the Bill, certain specified information on the NAIT information system.

41. The purpose of this power is to deter people from unlawfully accessing the NAIT system, which contains private and commercially sensitive information. Such a deterrent is necessary for the public to have confidence in the NAIT information system and to promote compliance. We note that the constable’s suspicion must be based on reasonable grounds. The detention may only last for as long as is reasonably necessary to carry out the search of the person. The person may not be detained before the constable has advised the person that the constable proposes to detain and search the person, and produces evidence of his or her authority to do so. The constable is not authorised to undertake an internal search of any part of the person’s body. The constable must provide a written report on the search and the circumstances under which it was conducted to the chief executive of the Department responsible for the administration of the NAIT Act no later than 3 days after detaining and searching the person (cl 110).

42. Considering the purposes of the powers to detain in cls 96(d), 106, 108 and 110 and the available safeguards, we have concluded that these powers are not arbitrary for the purposes of s 22 of the Bill of Rights Act.

Section 25(c) – Right to be presumed innocent until proven guilty

43. 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. This means that an individual must not be convicted where reasonable doubt as to his or her guilt exists; therefore, the prosecution in criminal proceedings must prove, beyond reasonable doubt, that the accused is guilty.

44. We have identified several strict liability offences in the Bill. These offences give rise to a prima facie issue of inconsistency with s 25(c) because the accused is required to prove (on the balance of probabilities) a defence to avoid liability; whereas, in other criminal proceedings an accused must merely raise a defence in an effort to create reasonable doubt. This means where the accused is unable to prove the defence, he or she could be convicted even though reasonable doubt exists as to his or her guilt.

45. The Bill contains the following strict liability offences:

• cl 131 (offences relating to registration and declarations)

• cl 132 (offences relating to fitting of NAIT devices)

• cl 133 (offences relating to alteration, removal, reuse, and supply of NAIT

devices), and

• cl 134 (offence of failing to comply with directions given by a NAIT officer).

10 Or if the constable has been informed by a NAIT officer who has reason to believe that the person has knowingly accessed such information or may be holding that information.

46. Clause 148(1)11 provides a defence to these offences if the defendant proves that

• he or she took all reasonable steps to avoid committing the offence, or

• the act or omission constituting the offence took place in circumstances of an adverse event or emergency, and was necessary for the preservation, protection, or maintenance of animal or human life or for animal welfare purposes.

Is the limit on the right to be presumed innocent justified?

47. Where a provision is found to limit 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 s 5 of that Act. Following the guidance of the New Zealand Supreme Court decision of R v Hansen, the s 5 inquiry may be summarised as:12

(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?

48. We note that the NAIT scheme has the significant public welfare purpose of protecting New Zealand against biosecurity risks in the form of pests and diseases, ensuring food safety in relation to animal products and securing economic benefits to New Zealand in terms of enhancing access to overseas markets for New Zealand animals. We consider this to be an important objective.

49. The limitation on the right to be presumed innocent is rationally linked to this objective as it provides a strong incentive for compliance with the NAIT scheme.

50. Important for the justification of strict liability offences is also whether the offence turns on a particular matter that is peculiarly within the knowledge of the defendant.13

In such cases, it is easier for the defendant to explain why he or she took (or failed to take) a particular course of action than it is for the Crown to prove the opposite. In

the present case, the strict liability offences involve breaches of obligations in the Bill that involve straightforward issues of fact, which are often only known to the defendant. For example, if a defendant failed to register a NAIT animal at a NAIT location on the NAIT system as required, the defendant is best placed to prove that this was for instance due to a computer malfunction.

11 Clause 148(2) prescribes the procedure which the defendant must follow to be able to rely on a defence under subs (1).

12 The proportionality test under s 5 of the Bill of Rights Act, as applied in R v Hansen [2007] 3 NZLR 1 at [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.

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

51. We note that as a general principle, strict liability offences should carry penalties at the lower end of the scale. In our view, the prescribed penalties are at the lower end of the scale:


52. We consider that cls 131, 132, 133 and 134 appear to impair the right to be presumed innocent no more than is reasonably necessary for sufficient achievement of the objective of these strict liability offences. The limitation is in due proportion to the importance of that objective.

53. Accordingly, we have concluded that cls 131, 132, 133 and 134 appear to be justified under s 5 of the Bill of Rights Act.

Other issues

54. We note that a number of clauses in the Bill require the provision of information, e.g. cls 13 (NAIT organisation to provide Minister with requested information), 22 (NAIT organisation must keep register of information providers and accredited persons dealing with NAIT animals), 23 (NAIT organisation to assess performance of information providers and accredited persons dealing with NAIT animals), 27 (Registration process), 35 (Obligation on manufacturers of animal identification devices), and 36 (Obligation on other information system administrators).

55. To the extent that these clauses may raise issues under s 14 of the Bill of Rights Act (right to freedom of expression), we consider that they are justified under s 5 of that Act. The provision of information under each of these clauses is rationally and proportionally connected to the operation of the NAIT scheme, which – as has been noted in paragraph 48 above – is important for public welfare reasons.

56. Finally, cl 102(1)(b) states that a person carrying out a search may exclude any person from the place, vehicle or other thing searched, or from any area within the place, vehicle or other thing. This power limits the freedom of movement affirmed in s 18(1) of the Bill of Rights Act.

57. However, we consider that the limitation is justified. The purpose of this power is to prevent any tampering or destruction of potential evidence, which is an important objective.

58. Clause 102(1)(b) provides that the power to exclude a person may be exercised if the person exercising the power has reasonable grounds to believe that the person will obstruct or hinder the exercise of the search and only for a duration that is reasonable for the purpose of carrying out the search. The person exercising the power must identify himself or herself and advise the person of the reason and authority for the exercise of the power. We, therefore, conclude that this power is rationally and proportionally connected to its purpose.

Conclusion

59. We have concluded that the Bill does not appear to be inconsistent 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


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