Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Summary Offences (Possession of Hand-held Lasers) Amendment Bill (Consistent) (Sections 21, 25(c)) [2012] NZBORARp 69 (30 November 2012)

Last Updated: 28 April 2019

30 November 2012 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: SUMMARY OFFENCES (POSSESSION OF HAND-HELD LASERS) AMENDMENT BILL

1. We have considered whether the Summary Offences (Possession of Hand-held Lasers) Amendment Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). The Bill is a Member’s Bill in the name of Dr Cam Calder. The Bill was introduced into the House of Representatives on 15 November 2012 and is awaiting its first reading. We understand that the next Members’ Day is scheduled for Wednesday, 5 December 2012.
2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered possible inconsistencies with s 25(c) (right to be presumed innocent) and s 21 (right to be secure against unreasonable search or seizure). Our analysis under those sections is set out below.

THE BILL

3. The Bill aims to prevent the misuse of laser pointers. To achieve this aim, the Bill amends the Summary Offences Act 1981 to make it an offence for a person to possess a hand-held laser in a public place without reasonable excuse. The Bill provides that a constable may, in certain circumstances, seize a hand-held laser.

CONSISTENCY WITH SECTION 25(C) (PRESUMPTION OF INNOCENCE)

4. Section 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proved guilty according to law. The presumption of innocence requires that the onus of proof lies with the prosecution and that guilt must be proved by the prosecution beyond a reasonable doubt.
5. The Bill inserts new s 13B into the Summary Offences Act. New s 13B provides that any person who possesses a hand-held laser, in any public place, without reasonable excuse, commits an offence. Section 67(8) of the Summary Proceedings Act 1957 (SPA) shifts the burden of proving any exception, exemption, proviso, excuse or qualification in summary proceedings to the defendant. In our view s 67(8) would apply to new s 13B.1
6. New s 13B therefore appears to limit s 25(c) of the Bill of Rights Act because, once the prosecution has proved that the accused had possession of a laser in a public place, the accused must prove, on the balance of probabilities, that they had a reasonable excuse for possessing the laser.
7. We note, however, that s 67(8) SPA will be repealed in July 2013 when the Criminal Procedure Act 2011 comes into force. From July 2013 there will be an entirely new categorisation of offences with no equivalent to s 67(8) in any category of proceedings in relation to any exception, exemption, proviso, excuse or qualification. It is therefore likely that new s 13B is likely to have a reverse onus for a limited time only.
   

1 Courts have held that s 67(8) SPA applies to the similarly worded reasonable excuse exceptions in s 13A Summary Offences Act (possession of a knife in a public place: Police v Wineera [1989] NZHC 1725; (1989) 4 CRNZ 449) and s 29(1)(b) of the Summary Offences Act (being found in an enclosed yard: Streeton v Police (HC Auckland, CRI- 2006-404-147, 8 December 2006, Winkelmann J).

8. Where a provision is found to pose a limit on 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 demonstrably justified in terms of s 5 of that Act. We generally consider the following factors in assessing whether a reverse onus can be justified under s 5 of the Bill of Rights Act:
   • the nature and context of the conduct to be regulated (i.e. whether the conduct is a “truly criminal” or is a public welfare regulatory offence)
   • the ability of the defendant to exonerate themselves, and
   • the penalty level.
9. The offence created by new s 13B can be described as a public welfare regulatory offence. The intention of the Bill is to enhance public safety rather than impose the moral condemnation associated with a truly criminal offence. Hand-held lasers are potentially dangerous items but also have a range of legitimate uses. Possession of such devices might be deserving of restrictions imposed by law but is not inherently wrong.
10. It also appears that any excuse a defendant has for possessing a hand-held laser in a public place will be something peculiarly within that person’s own knowledge. For example, lower- powered hand-held lasers are commonly used as pointers in presentations or lectures while high-powered hand-held lasers are used as a demonstration aid for astronomers. Conversely, it would be difficult for the prosecution to prove beyond a reasonable doubt that the defendant did not have a reasonable excuse.
11. The maximum penalty of three months imprisonment is relatively high for this type of offence. A reversal of the burden of proof will be more easily justified where a penalty is at the lower end of the scale.
12. On balance, we are satisfied that the maximum penalty level can be justified. In reaching this conclusion, we have taken into account that hand-held laser devices have the potential to cause significant harm in certain circumstances. They can cause damage to a person’s eyes or skin and can cause temporary flash blindness when shone in the eyes of a pilot or driver. We note that the number of laser strike incidents reported to the Civil Aviation Authority involving high-powered laser pointers is increasing.2 The court retains the discretion to impose the higher penalty only where it is justified in the circumstances.
13. We therefore consider that the limit the Bill imposes on the presumption of innocence affirmed in s 25(c) of the Bill of Rights Act is, overall, justifiable.

CONSISTENCY WITH SECTION 21 (UNREASONABLE SEARCH AND SEIZURE)

14. Section 21 of the Bill of Rights affirms the right to be secure against unreasonable search or seizure. New s 13B(2) provides that a constable may seize a hand-held laser. A constable may only seize a hand-held laser where he or she has reasonable grounds to suppose that the possession of that device contravenes new s 13B. Given this requirement, and that such a device may only be finally forfeited by order of a court following a conviction under new s 13B, we are satisfied that the seizure power is reasonable.
    

Melanie Webb

Acting Chief Legal Counsel Office of Legal Counsel

2 “Options to Manage the Health and Safety Risks from High-Power Laser Pointers” Ministry of Health Consultation Paper (October 2012) at 3.

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 Summary Offences (Possession of Hand-held Lasers) 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.