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Crimes Amendment Bill (No 2) (Consistent) (Section 19) [2011] NZBORARp 11 (24 March 2011)

Last Updated: 28 April 2019

Crimes Amendment Bill

Note: the name of the Crimes Amendment Bill was changed to the Crimes Amendment Bill (No 2) prior to introduction.

24 March 2011 Attorney-General

Crimes Amendment Bill (PCO13543/29.0): Consistency with New Zealand Bill of Rights Act 1990

Our Ref: ATT395/113

1. I have reviewed the Crimes Amendment Bill for consistency with the New Zealand Bill of Rights Act 1990. I conclude that while the Bill raises a possible issue with the right to freedom from discrimination under s 19 of the Bill of Rights Act, the Bill is consistent with that Act.
2. The Bill amends the Crimes Act 1961. According to the explanatory note the Bill is to better ensure adequate protection of children from assault, neglect and ill- treatment. The Bill also amends provisions governing possession of offensive weapons, sexual grooming offence and the claim of right defence.
   

Discrimination issues

3. Clause 7 of the Bill repeals the current offence of cruelty to a child [1] and provides for two new offences in relation to ill-treatment or neglect [2] and failure to protect [3] children (defined as a person under 18) or vulnerable adults. Persons under 18 cannot be charged with the offence of failure to protect a child or vulnerable adult unless the victim was a child and they are the parent.
4. As such, the Bill raises an issue with the right to freedom from discrimination affirmed by s 19 of the Bill of Rights Act, on the basis of age [4] and family status [5]. A prima facie limit on s 19 of the Bill of Rights Act arises if there is differential treatment or effects on a prohibited ground, that has an impact that is discriminatory in that it is based on prejudice or stereotyping, or perpetuates historical disadvantage. [6]
   

Age discrimination

5. The offences provided for under clause 7 of the Bill treat persons aged under 18 differently, both in defining child as a person under 18 and limiting when those under 18 can be charged with the failure to protect offence.
6. This differential treatment on the basis of age here does not, however, have a discriminatory impact. [7] Although it stereotypes those under 18 as being vulnerable and therefore requiring greater protection, this is not disadvantaging in this context as younger people are generally more vulnerable. This is reflected in the definition of child in the United Nations Convention on the Rights of the Child as being a person under the age of 18. [8]

7. Likewise it is also legitimate to use age 18 as a proxy for when persons are able to take responsibility for their own care and to assume some responsibility for protecting children and vulnerable others from harm from others, so as to be liable for prosecution for the offence of failure to protect.
8. Even if the differential treatment did impose a discriminatory disadvantage it would be a justified limit on the right to be free from discrimination under s 5 of the Bill of Rights Act. Determining whether any discriminatory disadvantage is justified under s 5 entails an assessment of whether the distinction is rationally connected to an important objective and is proportionate to that objective. [9]
9. The use of age 18 in these offences is rationally connected to the important objective of ensuring adequate protection of children and vulnerable adults. Further, it is in my view proportionate. It is legitimate to use the age of 18 as a bright line proxy for when young people require the same legal protection afforded to vulnerable adults. Further, it is widely accepted in our society that parental responsibility extends up to the age of 18. [10] In addition, the measure is tailored because those under 18 may be charged with failure to protect their own child.
   

Family status discrimination issue

10. The Bill treats parents under 18 differently in that it only allows the prosecution of parents under 18 for the offence of failure to protect their own child. Whilst this may amount to differential treatment on the basis of family status it does not have a discriminatory impact. Imposing criminal liability on young parents but not on those without parental responsibility is not based on stereotyping, but recognises the social and legal obligations arising from having parental responsibility. For these reasons, even if the differential treatment did impose a discriminatory disadvantage it would in any event be justified limit under s 5 of the Bill of Rights Act.
11. Accordingly, no inconsistency arises in respect of these provisions.
12. This advice has been reviewed in accordance with Crown Law protocol, by Martha Coleman, Crown Counsel.
    

Yours sincerely Jane Foster Crown Counsel

Footnotes:

1. Section 195 of the Crimes Act 1961
2. New section 195
3. New section 195A
4. Section 21(1)(i) of the Human Rights Act 1993, defines age as any age commencing with the age of 16 years.
5. Section 21(1)(l)(i) of the Human Rights Act 1993, defines family status as including; having the responsibility for part-time or full-time care of children or other dependents; or being a relative of a particular person.

6. The Crown considers this purposive approach is correct, but the legal test for s 19 is not settled in New Zealand. In the recent decision Ministry of Health v Atkinson HC Auckland CIV-20101-404-287, 17 December 2010 the Court did not accept that discriminatory impact of this kind was required to establish a prima facie breach of s

19. The Crown has been granted leave to appeal the decision. The Supreme Court of Canada in Withler v Canada (Attorney-General) (2011) SCC 12 has recently reaffirmed that discrimination only arises where, taking account of the full context the actual impact of the measure, there is a discriminatory impact of this kind.

7. In Law v Canada (Minister of Employment & Immigration) [1999] 1 SCR 497, at [102] the Supreme Court of Canada distinguished between unobjectionable use of age as a general reflection of different capacities on the one hand, and the stigmatisation on the other.
8. Article 1.

9. See R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]-[204] and [271].

10. See for example the Care of Children Act 2004 and the United Nations Convention on the Rights of a Child which defines a child for its purposes as those under 18.

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 Crimes 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.