You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2012 >>
[2012] NZBORARp 38
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Marine Protection Legislation Bill (Consistent) (Sections 14, 21, 22, 25(c)) [2012] NZBORARp 38 (14 August 2012)
Last Updated: 27 April 2019
Marine Protection Legislation Bill
14 August 2012 ATTORNEY-GENERAL
Legal Advice
Consistency with the New Zealand Bill of Rights Act
1990: Marine Protection Legislation Bill
- We
have considered whether the Marine Protection Legislation Bill
(PCO
13546/22.7) (‘the Bill’) is consistent with the New
Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’).
We
understand that the Bill is likely to be considered by the Cabinet Legislation
Committee at its meeting on Thursday, 16 August
2012.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
this conclusion, we
have considered the consistency of the Bill with sections: 14 (freedom of
expression); 21 (unreasonable search
and seizure); 22 (arbitrary detention); and
25(c) (presumption of innocence) of the Bill of Rights Act.
PURPOSE OF THE BILL
- The
Bill is an omnibus Bill that amends the Maritime Transport Act 1994 (the MTA)
and the Exclusive Economic Zone and Continental
Shelf (Environmental Effects)
Act 2010 (the EEZ Act).
- The
Bill amends the MTA to make changes relating to port and harbour safety and to
enable New Zealand to accede to three international
maritime conventions. It
also makes changes relating to maritime and marine protection rules, and other
miscellaneous amendments.
- The
Bill amends the EEZ Act in order to transfer from Maritime New Zealand to the
Environmental Protection Authority the regulation
of discharges of harmful
substances and the dumping of waste (except emergency dumping) into the Economic
Exclusive Zone (EEZ) or
the continental shelf. The Bill also adds new provisions
prohibiting activities relating to the dumping and storage of toxic or hazardous
waste and adds provisions for making regulations that prescribe standards,
methods, requirements and classifying areas and activities
in relation to
discharges and dumping.
Consistency with Section 21 (Unreasonable Search and Seizure) and Section 14
(Freedom of Expression)
- Section
21 of the Bill of Rights Act affirms the right of everyone to be secure against
unreasonable search and seizure, whether of
the person, property, correspondence
or otherwise.
Power to enter a vessel
- New
s 33F of the Bill confers powers on the harbourmaster to enter and remain on a
vessel, and to give directions to the master of
the ship. The power to enter and
remain on private property could engage s 21 of the Bill of Rights Act.
- The
purpose of new s 33F is to enable the harbourmaster to take all reasonable steps
to ensure maritime safety and enforce regulations,
rules and navigation bylaws
made under the Act. We therefore consider the entry powers conferred by the new
s 33F are ‘reasonable’
in terms of s 21 of the Bill of Rights
Act.
Power to require information
- New
s 33F(1)(i) authorises the harbourmaster to require the owner of a ship, where
an alleged offence against the regional council’s
navigation bylaws is
committed, to give all information they hold that may lead to the identification
of the person (not being the
owner) who committed the offence. Similarly,
new s 33O authorises the Director of Maritime New Zealand to require a person
who operates, maintains or services a port
facility to provide any information
he or she considers relevant to an inspection or audit.
- A
request for information or documents constitutes a search for the purposes of s
21 of the Bill of Rights Act. These sections may
also engage s 14 of the Bill of
Rights Act, which protects the right to freedom of expression, including the
freedom to seek, receive,
and impart information.
- The
stated objective of these provisions is to enable decisive, legally enforceable
intervention to assist in the management of maritime
safety risks and marine
environmental protection in New Zealand ports and harbours.
- We
do not consider these powers ‘unreasonable’ in terms of s 21 of the
Bill of Rights Act. We also consider that s 14
is not limited, as there is low
expressive value in the information required.
Powers to require breath/blood tests
- New
ss 40H, 40I, 40L and 40M authorise enforcement officers to require seafarers to
undergo a breath screening test, evidential breath
test, or blood test in
certain circumstances. The purpose of these provisions is to provide the most
effective method to adequately
enforce the offences against the alcohol limit
set out in the Bill.
- We
consider that the demand for a breath or blood sample is a search for the
purposes of s 21 of the Bill of Rights Act. The Court
of Appeal has said that
the “touchstone” of section 21 is the protection of reasonable
expectations of
privacy.[1]
Expectations of privacy are not as great in the commercial world as they are
in the domestic sphere.[2] It is an
exercise in balancing legitimate state interests against any intrusions on
individual interests. It requires weighing relevant
values and public
interests.
- Seafarers
who are performing designated safety, security, or environmental duties at the
time of an alleged offence against the alcohol
limits set out for industry have
lower expectations of privacy because that expectation needs to be balanced
against legitimate health
and safety interests.
- In
relation to blood tests, which require a much more intrusive procedure than
breath tests, there is a safeguard in place as new
Section 40F creates a defence
for failing or refusing to supply a blood specimen when the taking of blood
would have been harmful
to the seafarer’s health.
- For
these reasons, we do not consider these powers to be unreasonable.
CONSISTENCY WITH SECTION 22 (RIGHT NOT TO BE ARBITRARILY DETAINED)
- Section
22 of the Bill of Rights Act provides that ‘everyone has the right not to
be arbitrarily arrested or detained.’
- New
ss 40H, 40I and 40L authorise enforcement officers to require a seafarer to
remain at the place where she or he underwent a breath
screening test, or
accompany an enforcement officer elsewhere to undertake an evidential breath or
blood test. New s 40U authorises
an enforcement officer to arrest a seafarer
without a warrant if he or she has good cause to suspect that the seafarer has
committed
an offence against the alcohol limits set out in the Bill.
- The
Courts have 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.”[3]
- The
stated purpose of these provisions is to ensure that safety, security and
environmental duties are performed to a high standard.
Enforcement officers can
only detain seafarers who are involved in an incident or are suspected of
being
intoxicated while on duty, this reduces the possibility of
‘arbitrariness’.
- By
virtue of s 22 of the Bill of Rights Act, the enforcement officer is obliged, by
virtue of s 22 of the Bill of Rights Act, to ensure
that the person is not
detained for an unreasonable time.
- We
do not consider that the above provisions could be interpreted as authorising
arbitrary detentions.
Consistency with section 25(c) (Presumption of Innocence)
- Section
25(c) of the Bill of Rights Act affirms the right to be presumed innocent until
proved guilty according to law. This means
that the prosecution must prove,
beyond reasonable doubt, that the accused is guilty and an individual must not
be convicted where
reasonable doubt as to his or her guilt exists.
Presumptions relating to blood and breath testing
- New
s 40R states that it will be conclusively presumed that the level of alcohol at
the time of the alleged offence was the same as
that indicated in subsequent
testing. In relation to proceedings for a breath or blood alcohol offence,
new
s 40F states that it is no defence that there was or may have
been an error in the result of the breath screening test or evidential
breath
test. The defendant cannot challenge the result of the test, which appears to
limit s 25(c) of the Bill of Rights Act.
- Where
a legislative provision limits a particular right or freedom, it may
nevertheless be consistent with the Bill of Rights Act
if it can be justified
under s 5 of that Act. Section 5 permits reasonable limitations, prescribed by
law, that are demonstrably
justified in a free and democratic society.
- A
limitation on a particular right may be justified where the objective serves a
purpose sufficiently important to justify some limitation,
and the
limitation:
- (a) is
rationally connected with the objective,
- (b) impairs the
right or freedom no more than is reasonably necessary for sufficient achievement
of the objective, and
- (c) is in due
proportion to the importance of the objective.
- We
note that similar conclusive presumptions contained in the Land Transport Act
1998 were brought to the attention of the House under
s 7 of the Bill of Rights
Act. The then Attorney-General concluded that the right could have been less-
impaired by allowing the
presumption to be displaced by proof or evidence to the
contrary.[4]
- However,
the Supreme Court has subsequently addressed this presumption in Aylwin v
Police.[5] The Court observed that
“The right of election to have a blood test and the right to be advised of
that right, conferred by
section 70(A), must be regarded as providing effective
protection against the consequences of an error in a breath-screening test
or an
evidential breath test”.[6]
Furthermore, the Court stated: “The legislature has evidently acted on the
view that a blood test, taken by a registered medical
practitioner with the
result scientifically analysed, is the
motorist’s ultimate
protection and a reliable basis for a conviction”.[7] Given the consideration of this issue by
the Supreme Court, and the conclusion reached in that case, we consider it
appropriate to
reconsider whether the limit on s 25(c) of the Bill of Rights Act
can in fact be justified under s 5 of that Act.
- The
objective of the conclusive presumption set out in new s 40R serves a pressing
need to control and prevent maritime accidents
caused by the consumption of
alcohol. The presumption is rationally connected with the objective as it
prevents offenders from escaping
conviction by drinking after the accident or
apprehension and before being tested,[8]
and raising technical defences.
- The
limitation impairs the right no more than is reasonably necessary and is in due
proportion to the importance of the objective,
as the prosecution would still be
required to produce a certified copy of a certificate of compliance for the
evidential breath-testing
device, or a certificate confirming compliance with
the blood specimen collecting procedure. The defendant can challenge the
admissibility
of the certificate in proceedings on the grounds set out in new s
40S.
- In
light of the above reasons, including the decision of the Supreme Court
in
Aylwin, we consider that a limitation on s 25(c) appears
to be justified.
Strict Liability Offences
- Strict
liability offences appear to limit the presumption of innocence because the
prosecution is not required to prove that the accused
intended to commit the
offence. The prosecution must prove only that the accused committed the act in
question. The accused is then
required to prove, on the balance of
probabilities, a defence to escape liability. Where an accused is unable to
prove the defence,
he or she could still be convicted even though a reasonable
doubt exists as to his or her guilt.
Strict Liability Offences in the Bill
- New
ss 33F(4), 33O(4), 33P(6) and 33Q(5) amend the MTA and state that a person who,
without reasonable excuse, fails to comply with
a direction or requirement given
by an enforcement officer in exercise of the powers conferred by the Bill, is
liable to imprisonment
for a term not exceeding 12 months or a fine not
exceeding $10,000 or both.
- New
ss 124 to 126 amend the EEZ Act and provide for strict liability offences,
defences and penalties for prohibited activities including
those relating to the
discharge and dumping of toxic substances in the EEZ or in or on the continental
shelf. New section 126H states
that a non-natural person who commits an offence
against the Act is liable on conviction to a fine not exceeding $10 million.
- In
considering whether a strict liability offence is justified, we normally
consider: the nature of the offence (whether it is regulatory
in nature or a
truly criminal offence); the ease with which the accused can make out the
defence (in some cases it may be a very
simple matter for the accused to make
out the defence but very difficult for the Crown to prove the opposite); and the
penalty level
(strict liability offences are generally more suitable for
offences carrying a low penalty).
- We
are satisfied that the offences described in the Bill are in the nature of
regulatory offences and that the information to make
out the defences is
particularly
within the realm of the individual’s knowledge.
However, we note that the maximum penalty of 12 months imprisonment for offences
in the MTA Act is the upper limit of what we would consider reasonable for
strict liability offences. The $10 million maximum penalty
for non-natural
persons for offences in the EEZ Act is also above the normal penalty range for
strict liability offences.
Further assessment of the penalties in the Bill
- In
respect of the strict liability offences in the MTA Act, the Ministry of
Transport has advised that non-compliance with the requirements
or instructions
of a harbourmaster could potentially have major adverse environmental
consequences. These offences have a safety
and environment protection focus and
this aggravating factor justifies the imposition of a prison sentence. On
balance, we agree
that the limitation can be justified in this case.
- In
respect of the strict liability offences in the EEZ Act, the Ministry for the
Environment has advised that the $10 million maximum
penalty is considered
necessary to create an incentive for large multinational corporations to comply
with the law. The type and
scale of activities in question, the need for
effective deterrence, and the potentially serious consequences of offending
justifies
a high criminal penalty level.
- We
also take into account that $10 million would be the maximum fine, suitable for
the most serious cases of offending. These offences
include breaching an
enforcement order or undertaking a discretionary activity under the Bill, such
as mining for minerals or petroleum,
without a marine consent. The Courts have
flexibility to exercise their discretion in sentencing and may impose fines less
than the
maximum. We have therefore concluded that the limitation can be
justified in this case.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed by the Bill of Rights Act. This advice
has been prepared by
the Public Law Group and the Office of Legal Counsel.
Melanie Webb
Acting Chief Legal Counsel Office of Legal Counsel
[1] R v Williams [2007] NZCA 52; [2007] 3 NZLR 207
(CA) at [48] see R v Fraser [1997] 2 NZLR 442 at 449 (CA).
[2] Trans Rail v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780,
790.
[3] Neilsen v Attorney-General
[2001] NZCA 143; [2001] 3 NZLR 433 (CA) para 34.
[4] Report of the Attorney-General on the Land Transport Bill E.63
(1997).
[5] Aylwin v Police SC 33/2008; [2008] NZSC
113.
[6] Ibid para 11.
[7] Ibid para 12.
[8] MOT v Martis [1992] NZCA 307; [1993] 1 NZLR 307 (CA).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2012/38.html