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New Zealand Bill of Rights Act Reports |
Last Updated: 27 May 2020
Smoke-free Environments (Controls and Enforcement) Amendment Bill
1 December 2010
ATTORNEY-GENERAL LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
SMOKE-FREE ENVIRONMENTS (CONTROLS AND ENFORCEMENT) AMENDMENT BILL
1. We have considered whether the Smoke-free Environments (Controls and Enforcement) Amendment Bill (PCO 14886/1.5) (“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 Cabinet at its meeting on Monday, 6 December 2010.
2. 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 s 14 (right to freedom of expression) and s 25(c) (right to be presumed innocent). Our analysis is set out below.
Purpose
3. This Bill amends the Smoke-free Environments Act 1990 (“the Act”) so that the display of tobacco products in or at the exterior of retail and other sales outlets are generally prohibited. The objective of these measures is to reduce tobacco uptake over time, particularly among young people, and to help smokers to quit.
4. To achieve its objective, the Bill:
• prohibits the display of retailers’ names or trading names on the exterior of retail premises
that have the effect of advertising the availability of tobacco
• facilitates the enforcement of prohibitions on distribution or supply of tobacco products free
of charge or at a reduced charge, or with rewards, by providing that a term of such an arrangement has no effect if compliance with the term would prevent or limit compliance with those prohibitions
• provides that a person who, without reasonable excuse, allows a tobacco product, package or carton to be visible in contravention of the Act, commits an offence and is liable to a fine not exceeding $10,000, and
• ensures that regulations may be made to facilitate the general prohibition on the display of
tobacco products and ensure a consistent approach is taken to requirements for signs or for the display and provision of price lists and health warnings
The Bill includes transitional exemption regulations that are intended to provide flexibility over options and timeframes for compliance with the general prohibition on display of tobacco products, in order to avoid unnecessary compliance costs and impacts on small retail businesses.
Framework for tobacco advertising – freedom of expression issues
A number of clauses in the Bill contain provisions that impact on the right to freedom of expression. These are described below.
Clause 6 of the Bill amends s 22 of the Act, which prohibits a person publishing or arranging for another person to publish a tobacco product advertisement in New Zealand. The amendment inserts new subs (1A) and (1B) which state that a tobacco product advertisement includes a notice or sign that:
• is, or includes, tobacco product health or purchase age information or warnings
• is not required or permitted by or under the Act.
Clause 7 substitutes new ss 23 to 23B. New s 23 specifies exceptions to the s 22 prohibition on the publishing of any tobacco advertisement in New Zealand. New s 23(1)(a) enables a retailer to
display inside their place of business a notice identifying the tobacco products available for purchase
and indicating their price. The notice must comply with regulations in force under new s 39(1)(ia).
New s 23(1)(b) enables a retailer to display their name or trade name on the exterior of their place of business so long as the name is not, and does not include, any word or expression signifying that tobacco products are available for sale, or the trade mark of a tobacco product or the company name of a tobacco manufacturer.
New s 23(2) enables a person who offers tobacco products for sale from a vending machine to display on the exterior of the vending machine a notice identifying the tobacco products available for purchase and indicating their price. The notice must comply with regulations in force under new s 39(1)(ib).
New s 23A prohibits the display of tobacco products by people who offer them for sale (including by vending machine). New s 23A(1) prohibits a person who offers tobacco products for sale from allowing any part of the tobacco product, package or carton at the exterior of or inside the person’s place of business to be visible from outside the place, or from an area inside the place to which members of the public are allowed access. New s 23A(2) prohibits a person offering tobacco products for sale by way of a vending machine from allowing any part of the product, package or carton to be for any reason visible from outside the machine.
However, new ss 23A(1) and (2) do not apply to a tobacco product, package or carton that is visible only to the extent necessary to deliver it to the person or machine, or from the place or machine to the purchaser, or where the tobacco product, package or carton is visible in accordance with any temporary transitional exemption regulations for the time being in force under s 39(1)(ic).
Clause 9 of the Bill inserts new s 29AA, which relates to point of sale tobacco product health information or warning signs. It requires every person who offers tobacco products for sale, at all
times when regulations under new s 39(1)(id) are in force, to display clearly at each point of sale at
the exterior of or inside the person’s place of business a sign for the public that:
• does no more than communicate tobacco product health information or warnings, and
• complies with any regulations for the time being in force under new s 39(1)(id).
Clause 10 of the Bill inserts new s 30(6), which requires a person who offers a tobacco product or herbal smoking product for sale to display clearly at each point of sale at the exterior of or inside the person’s place of business a notice for the public that selling such products to persons under the age of 18 years is prohibited. New s 30(6) states that this notice must be displayed only at all times when regulations under new s 39(1)(id) are in force and must comply with any regulations of that kind for the time being in force.
Clause 14(2) of the Bill amends s 39(1) by substituting new paragraphs (ia) to (ie). New paragraph (ic) enables the making of temporary transitional exemption regulations prescribing for the purposes of new s 23A(5) ways in which specified classes of people who offer tobacco products for sale may
allow a tobacco product, package or carton to be visible. These regulations may do either or both of
the things specified in new s 39(6A).
Section 39(6A) makes it clear that temporary transitional exemption regulations under new s
39(1)(ic) may prescribe different ways of allowing a tobacco product, package or carton to be visible for different classes of people who offer tobacco products for sale. It also allows for conditions to be prescribed with which one or more classes of people of that kind must comply with before, or while, allowing a tobacco product, package or carton to be visible in a way prescribed.
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.” The right extends to all forms of communication including advertising. [1]
The Canadian Provincial Court of Nova Scotia recently considered the issue of whether the display of products for sale is expressive activity so as to come within the right to freedom of expression in the
Mader’s Tobacco Store case. [2] The product at issue was tobacco.
The Court held in Mader’s Tobacco Store that the display of tobacco “....is a way of providing potential customers a very simple, basic message: ‘these are the kinds of tobacco products I sell; these are the brands of tobacco products I sell’. I find that constitutes expressive activity; it does convey or attempt to convey a meaning. The fact that the expressive activity is simple and
straightforward does not take it outside the ambit of [the right to freedom of expression]”. [3]
The Bill generally prohibits the advertisement of tobacco products and requires that tobacco products, packages and cartons be kept from visibility. We consider that the signs that would otherwise advertise tobacco products, and the name of the store offering them for sale in a way that signifies tobacco products are available for purchase, amount to expression. Following the reasoning in Mader’s Tobacco Store, the display of tobacco products is advertising which must be considered expression.
We consider that the various prohibitions on tobacco product advertisements contained in the Bill limit the right to freedom of expression as people who offer tobacco products for sale are restricted in their ability to convey this fact to the general public.
The compelled expression in new ss 29AA and 30(6) is also caught by s 14 of the Bill of Rights Act. This is because freedom of expression also extends to the freedom to not say certain things. [4]
As the prohibition of displays and requirements for warnings prima facie limit the right to freedom of expression, they need to be justified in terms of s 5 of the Bill of Rights Act.
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: [5]
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?
iii. is the limit in due proportion to the importance of the objective?
Regarding the applicability of the s 5 test to the right to freedom of expression, we note that comparative case law suggests that not all forms of expression are equally deserving of protection and that commercial expression is considered to reside at the periphery of the right. [6] The Courts have held the view that commercial expression is of less importance than political or artistic expression and consequently limitations on the right in this context are easier to justify. [7]
Display of tobacco products
The objective of the restriction on displaying and advertising tobacco products is to reduce the uptake of smoking and consequently the harm associated with tobacco use. We consider this is a sufficiently important and significant objective and that the public health grounds for doing so are well established.
The Supreme Court of Canada in RJR-MacDonald Ltd [8] considered legislation prohibiting the advertising of cigarettes and concluded that the legislation was rationally connected to the objective of preventing people being persuaded to smoke, even with the absence of evidence of the link between advertising and smoking.
According to the Ministry of Health, the Act, while currently restricting retail displays, allows tobacco companies to display their products prominently in approximately 10,000 dairies, supermarkets, and petrol stations. According to the Ministry, this everyday presence of tobacco products:
• sanctions or normalises their availability and use
• increases the risk of young people and others experimenting with smoking, and
• can trigger relapses in addicted smokers trying to quit.
We therefore consider that the restriction on displaying tobacco products is rationally connected with the objective given the appearance of a general link between advertising and consumption. We further consider that the Bill’s proposals to generally prohibit tobacco advertising minimally impair the right to freedom of expression. We reach this view as the proposals appear to limit
freedom of expression only to the extent necessary to achieve the Bill’s objective; that is, it generally
prohibits tobacco product advertising by targeting the display of tobacco products only, thereby avoiding being overbroad.
Considering proportionality requires weighing attainment of the objective against the impact of the limit of the right. The potential benefits of decreasing tobacco use and discouraging young people from becoming addicted to it are high. On the other hand, a number of the deleterious effects on the right arguably fall at the low end of the spectrum of freedom of expression. When commercial expression is used for the purposes of inducing people to engage in harmful and addictive
behaviour, its value becomes tenuous. [9]
We consider that the scope of the general prohibition is proportionate to the limit it places on the right to freedom of expression as the potential benefits of the objective are significant, whereas the right being limited is of arguably low value in the present context.
We therefore consider that the limitation on freedom of expression as it relates to displaying tobacco products appears to be justified.
Other possible limitations on freedom of expression
We consider that the compelled expression in relation to the requirement for signs containing health warnings is also a justifiable limit on the right to freedom of expression, as the subject of the expression is limited to what is purely factual rather than matters of opinion. The public health grounds that justify limiting the display of tobacco products apply equally to requiring expression
that contains warnings of the adverse health effects of tobacco use.
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 [10] 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.
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 Bill contains several strict liability offences that place an onus on the defendant. [11]
Clause 13 inserts new ss 38A to 38D, which provide for an infringement fee not exceeding $400 for an offence against s 36(6)(a) of the Act (which relates to contravening s 30(1) or s 30AA(1) of the Act relating to selling tobacco products or herbal smoking products to persons under 18 years of age). Section 30(2) of the Act provides a statutory defence if the person proves the offence occurred without their knowledge, or that the person took reasonable precautions and exercised due diligence to prevent the offence. Section 30AA(2) of the Act provides a statutory defence if the person proves they had no reasonable grounds to suspect the person supplied was younger than 18 years.
It is currently an offence under the Act, punishable by a fine of up to $2,000, to sell tobacco products to a person under 18 years of age. However, according to the Ministry of Health, prosecutions for
this offence have been cumbersome and costly whereas an infringement regime is an efficient and cost-effective way to encourage compliance with the Act and is a proportionate response, particularly to first-time offending.
We note that the Bill also contains a reverse onus offence. Clause 12 amends s 36, which creates offences in respect of smoking products, by substituting new subs (1A). The amendment relates to a person who, without reasonable excuse, allows a tobacco product, package or carton to be visible in contravention of new s 23A(1) or (2). New s 36(1A) states that such a person commits an offence
and is liable to a fine not exceeding $10,000.
As the requirement for a defendant to prove something in order to escape conviction (or penalty) prima facie limits the right to be presumed innocent, it needs to be justified in terms of s 5 of the Bill of Rights Act.
Is this a justified limit under s 5 of the Bill of Rights Act?
In addition to the factors in the Hansen approach to the s 5 inquiry, 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 offence relates 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 (ie. young people taking up smoking). The objective of including strict liability offences is to increase the likelihood of successful enforcement action to promote the objectives of the Act. An objective of the Act is to provide penalties for failure to comply with the general prohibition of display of tobacco products and for
selling these products to young people. Providing penalties to incentivise compliance appears to be a sufficiently important purpose.
As the strict liability offences seek to deter retailers from circumventing the requirements in the Act, we consider that they are rationally connected to the objectives of the Act.
We consider that the creation of the strict liability offence minimally impairs the right to be presumed innocent as the penalty is towards the lower end of the spectrum in that it results only in a fine. Further, there is a statutory defence provided for in the Bill and it appears that it would be possible and practical for a defendant to make out the defence as provided. The availability of a practical defence limits the impairment of the right to be presumed innocent.
Strict liability offences 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. [12] We consider that the offence in the Bill relates to public welfare regulatory matters. It results only in a fine. Further, we consider 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.
Given the stated importance of reducing tobacco advertising and associated consumption 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.
For these reasons, we consider that this limit on the right to be presumed innocent 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 Limited v Canada [1995] 3 SCR 199 (SCC)
2. R v Mader’s Tobacco Store Limited 2010 NSPC 52
3. R v Mader’s Tobacco Store Limited 2010 NSPC 52, at paragraphs 39 and 40
4. West Virginia State Board of Education v Barnette [1943] USSC 130; 319 US 624 (1943) in which the US Supreme Court held that the First Amendment prohibited compulsory flag salute and recitation of the Pledge of Allegiance.
5. 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.
6. RJR-MacDonald Ltd v Attorney General of Canada (1995) 127 DLR (4th) 1; see on this point
the dissenting judgment of La Forest J.
7. Richard Claydon & Hugh Tomlinson The Law of Human Rights (Oxford University Press, Oxford, 2000), Vol.1, 15.171 – 15.176
8. Referred to above, at n 4
9. Canada v JTI-MacDonald Corp., above, n 7, at [47]
10. 84 DLR (4th) 161, 188 citing R v Oakes [1986] 1 SCR 103
11. See s 67(8) of the Summary Proceedings Act 1956
12. 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 Smoke- free Environments (Controls and Enforcement) 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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