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Psychoactive Substances Bill (Consistent) (Sections 14, 21, 25(c), 25(d)) [2013] NZBORARp 5 (20 February 2013)

Last Updated: 26 March 2019

Psychoactive Substances Bill

Psychoactive Substances Bill - Consistency with the New Zealand Bill of Rights Act 1990

20 FEBRUARY 2013

1. We have examined the Psychoactive Substances Bill (16768/4.1) for consistency with the New Zealand Bill of Rights Act 1990. We have concluded that whilst the Bill raises some issues under the Bill of Rights Act, it is not inconsistent with that Act.
   
2. The Bill will regulate psychoactive substances such as ‘party pills’ and other

‘legal highs’.[1] It will restrict the importation, manufacture and supply of psychoactive substances and only allow the sale of those substances that can meet safety and manufacturing requirements. Psychoactive products will only be approved for sale to the public if they have been demonstrated to pose no more than a low risk of harm.[2]

3. The Bill engages a number of rights affirmed by the Bill of Rights Act, including the freedom to be secure against unreasonable search or seizure (s 21), the right to silence (s 25(d)), freedom from age discrimination (s 19(1)) and freedom of expression (s 14).
   

Searches, inspections and audits

4. The Bill proposes a wide range of enforcement and regulatory powers that raise issues with the right to be secure against unreasonable search or seizure affirmed by s 21 of the Bill of Rights Act. These include powers to: search with and without a warrant; inspect and audit without a warrant; seize psychoactive substances and products; and require the provision of identifying information.
   
5. Assessing the reasonableness of search powers involves striking a balance between the interest of the public and of the particular individual or entity concerned to be ‘left alone’, and the public interest in the objective of the search.[3] Whether a search is unreasonable will depend on many factors, including the nature of the place or object being searched, the degree of intrusiveness into personal privacy and the rationale for the search.[4] The greater the degree of intrusiveness, the greater the justification required (and the greater the attendant safeguards required to ensure that the justification is present).
   
6. A warranted search power allows for prior and independent verification that the search is justified. If it requires an independent officer to be satisfied that there are reasonable grounds to suspect a criminal offence has occurred, and the search will assist in the investigation, such a power will generally be reasonable and not limit the s 21 right.[5]
   
7. Whilst warrantless search powers lack prior judicial oversight, such searches may be reasonable where the delay inherent in obtaining a warrant would have a disproportionate adverse effect. Warrantless search powers have been accepted as reasonable where there is a serious threat to safety or property,[6] evidence may be lost or destroyed[7] or the search is undertaken in the context of a regulated activity.[8] The capacity of courts to

exclude evidence obtained as a result of an unreasonable search from a subsequent criminal trial provides an additional safeguard.[9]

8. Powers to check compliance by commercial operators with a regulatory scheme are generally regarded as reasonable.[10] There is a limited privacy interest in information generated or products manufactured during regulated commercial activity.[11] Any such interest will generally be outweighed by the State’s interest in monitoring compliance in the public interest.
   

Warrantless searches

9. The Bill will authorise warrantless searches where police and enforcement officers have reasonable grounds to believe that there is a psychoactive substance at the place and a serious offence has been, is being, or will be committed.[12] We consider that the power is not per se unreasonable because searches:
   
   • 9.1 May only be exercised in relation to serious offences[13] that are commercial rather than personal in nature (i.e. importation, manufacture and sale) and have been created to protect public health; and
     
   • 9.2 May not be carried out at dwellinghouses or other residential accommodation.[14] A search of commercial premises or a vehicle is less invasive of personal freedom than a search of residential premises.[15]
     

Inspection and audit of manufacturing facilities

10. The Bill proposes that authorised officers may, without warrant, inspect and audit facilities at which psychoactive substances are manufactured, to determine whether licence conditions and the code of manufacturing practice are being complied with. They may seize documents; inspect the contents of containers and packages; collect evidence; and take, test and analyse samples of any psychoactive substances.[16]
    
11. Again, we consider that the powers to inspect and audit without a warrant are not per se unreasonable because manufacturers have voluntarily chosen to participate in a regulated industry, in which the products that they manufacture may place the public at risk. Checks to ensure that the public is not being placed at risk are reasonable.
    
12. Further, the power to inspect facilities is limited to normal business hours and commercial premises, and no powers are conferred which would necessarily infringe individual rights.[17] In addition, where a criminal investigation is contemplated, courts will ordinarily insist that warranted search powers are relied upon.[18]
    

Warranted searches

13. The Bill will authorise searches pursuant to a warrant where the issuing officer[19] is satisfied that there are reasonable grounds to suspect that an offence has been, is being, or will be committed, and to believe that the search will find evidence at that location.[20]

Such a search power is reasonable, given that it allows for prior and independent verification that the search is justified and is coupled with an appropriate evidentiary standard.

Seizure and forfeiture

14. The Bill proposes that police may seize psychoactive substances or products if they have reasonable grounds to believe that they have been, are being or will be used in the commission of an offence. If the offence is proven, or the substance or product is seized from a minor, it will be forfeited to the Crown. If the offence is not proven, the substance or product will be returned.[21]
    
15. Seizure of substances and products pending the determination of criminal charges serves the legitimate law enforcement objective of ensuring that evidence is available for the criminal justice process. Forfeiture of such substances and products in circumstances where offences have been proven is reasonable.
    

Provision of identifying information

16. The Bill provides that certain persons will be required to provide police or enforcement officers with identifying information, where the police or enforcement officers have reasonable cause to suspect that, within the last 14 days, an approved product has been sold to a minor, or that an unlicensed person has possessed, possesses or is attempting to possess a psychoactive substance which is not an approved product.[22] Failure to comply with the requirement is an offence punishable by up to three months’ imprisonment or a $500 fine.[23]
    
17. Compelled expression potentially limits the rights to silence, to be free from unreasonable search and seizure, and free expression (which includes a right to refrain from expression). Such limits may be justified if the proposed restriction is rationally connected to an important objective and is proportionate to that objective.[24]
    
18. The information which may be required is minimally intrusive, and the powers are limited to circumstances where there are reasonable grounds to believe[25] or suspect[26] that the individual in respect of whom identifying information is required has committed an offence. Without the information, investigations could be easily frustrated. We consider that the search is not unreasonable, and that any limitation upon other rights is justified in terms of s 5 of the Bill of Rights Act.
    

Reverse onus: ‘without reasonable excuse’

19. The Bill creates a number of offences which consist of conduct engaged in ‘without

reasonable excuse’.[27] These ‘reverse onus’ provisions limit the right to the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act.[28] Such limits may be justified in terms of s 5 of the Bill of Rights Act where the defendant is voluntarily involved in a regulated activity.[29] In addition, any ‘excuse’ is likely to be peculiarly within the

knowledge of the person concerned.[30] For these reasons, we conclude that no issues of inconsistency with the Bill of Rights Act arise in relation to these offences.

Right to silence: mandatory reporting of adverse reactions

20. The Bill proposes that persons who hold a licence in respect of a psychoactive substance, or apply for approval of a product, will be required to notify the Authority if they become aware of an individual suffering an adverse reaction as a result of using a psychoactive substance or product.[31]
    
21. The purpose of the obligation is to ensure that the Authority may take timely action to protect public health.[32] However, the obligation may place the Authority on a line of inquiry which leads to the ultimate prosecution of the notifier. As such, the privilege against self-incrimination affirmed by s 25(d) of the Bill of Rights Act may be limited.
    
22. However, even if the s 25(d) right is limited, we consider that the limitation is justified in terms of s 5 of the Bill of Rights Act by the interest in protecting public health. Licence- holders and approval applicants have voluntarily chosen to participate in a regulated industry in which the products that they import, manufacture and sell may place the public at some (albeit low) risk of harm.
    

Age discrimination

23. The Bill restricts persons under the age of 18 from buying, being sold or being supplied with psychoactive products.[33] In addition, they may not be employed to sell such products.[34] This raises potential issues of age discrimination.[35] Discrimination will arise if there is differential treatment between two comparably situated groups which causes material disadvantage.[36]
    
24. In our view, any limit on the non-discrimination right may be justified in terms of s 5 of the Bill of Rights Act. Age-based distinctions necessarily involve a degree of generalisation without regard for the particular abilities, maturity or other qualities of individuals within the age group. The Bill’s age restrictions broadly reflect the likely greater vulnerability of young people to harm from using psychoactive products. Due to their earlier stages of physical and mental development, young people may be more impaired by psychoactive products than older people and more likely to engage in harmful use of them. In addition, whilst persons applying for approval of psychoactive products will have to satisfy the Authority that the product poses no more than a low risk of harm, such scientific evidence will likely only have been validated on an adult population, such that the risk of harm to young people may be unknown.
    
25. Any age limit is necessarily arbitrary. However, where it is nor practical to engage in individualised assessments, it is legitimate to use a 'bright line', imposing age restrictions which are rationally connected and proportionate to an important objective.[37] In addition, where legislation is aimed at addressing complex social problems, the courts will allow greater latitude to Parliament in choosing the means to achieve the objectives.[38]

26. The age limit is consistent with that imposed in relation to alcohol and tobacco. It reflects a view, widely shared in government and society, that 18 years of age is an appropriate ‘bright line’ to use to indicate that:
    
    • 26.1 The risk posed to an individual’s physical and mental development by using a

potentially harmful product is at a more acceptable level; and

26.2 The individual has reached a point where they have greater capacity for informed decision-making about using potentially harmful products.

Freedom of expression: advertising, labelling, packaging and signage

27. The Bill restricts the advertising of psychoactive products,[39] and confers power to make regulations in relation to the advertising, labelling, packaging and promotion of psychoactive products, and displays and signage at premises where psychoactive products are sold.[40]
    
28. The free expression right affirmed by s 14 of the Bill of Rights Act is broad, extending to all types of communication including commercial speech (such as advertising).[41] However, different types of expression are recognised as having different value, ‘moving from political and social speech, to commercial speech, to pornography’, which will in turn

influence whether any limitation on the expressive conduct is justified in terms of s 5 of the Bill of Rights Act.[42]

29. We consider that the various limitations are justifiable in terms of s 5 of the Bill of Rights Act. Importantly, advertising is not outright prohibited, but rather restricted. And the regulation-making powers must be exercised consistently with the free expression right (and will be ultra vires if they unjustifiably limit it). The limits are rationally connected to an important objective, which is the protection of public health in the context of products which may pose some (albeit low) risk of harm. In our view, the proposals reflect a reasonable and proportionate response to a complex social problem.[43]
    

Yours sincerely

Crown Law

Footnotes

1. Psychoactive substances are those capable of inducing a psychoactive effect on an individual (cl 9). They exclude food, herbal remedies, dietary supplements, alcohol, tobacco and controlled drugs.
2. Clause 34(b).
3. ‘Any search is a significant invasion of personal freedom. How significant it is will depend on the circumstances. There may be other values and interests, including law enforcement considerations, which weigh in the particular case’: R v Grayson and Taylor [1997] 1 NZLR 399 (CA) at 407.

4. Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [172].

5. Hunter v Southam [1984] 2 SCR 145.

6. R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [123].

7. R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [112].

8. Such as a commercial activity carried out under conditional licence: see, eg, British Columbia Securities Commission v Branch [1995] 2 SCR 3; Simmons v R [1988] 2 SCR 495.
9. Evidence Act 2006, s 30. This includes where, notwithstanding that the conditions for exercise of the warrantless power have been satisfied, it would have been reasonably possible to obtain a warrant: see, eg, R v Laugalis [1993] NZCA 551; (1993) 10 CRNZ 350 (CA); R v Dobson [2008] NZCA 359 at [30] ff.
10. See, eg, Thompson Newspapers v Canada 1990 CanLII 135 (SCC); [1990] 1 SCR 425, R v McKinlay Transport Ltd [1990] 1 SCR 627; Comité Paritaire de l’Industrie de la Chemise v Potash [1994] 2 SCR 406; British Columbia Securities Commission v Branch [1995] 2 SCR 3; R v Jarvis [2002] 3 SCR 757.
11. Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780 at [28]. See also

Thompson Newspapers v Canada 1990 CanLII 135 (SCC); [1990] 1 SCR 425.

12. Clause 69.
13. Offences punishable by up to two years’ imprisonment or a $500,000 fine: cll 24, 25 and 62.
14. Clause 69(2).
15. Tranz Rail Ltd v Wellington District Court [2002] NZCA 259; [2002] 3 NZLR 780 at [28]. See also

Thompson Newspapers v Canada 1990 CanLII 135 (SCC); [1990] 1 SCR 425.

16. Clauses 27 and 28.
17. E.g. the privilege against self-incrimination or legal professional privilege: cf

Goldsmith v Police [1993] NZHC 1555; (1993) 10 CRNZ 106 (HC).

18. See R v Jarvis [2002] 3 SCR 757, where the Supreme Court of Canada held that once officials were not engaged in verifying tax liability but rather the determination of penal liability, search warrants should be obtained in order to further the investigation.
19. See the Search and Surveillance Act 2012, ss 3 (definition of ‘issuing officer’) and 108.
20. Clause 70.

21. Clause 73.
22. Clauses 71 and 72.
23. Clause 74.

24. R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [63]–[65], [70], [103]–[104], [120]–

[123], [203]–[205] and [272].

25. In relation to the identity of the person believed to have sold the product: cl 71(2).
26. In relation to the location of the place where the product was sold, and the identity of the person suspected of committing a possession offence: cll 71(1) and 72(1).
27. The offences are:
    • · Unlicensed importation or manufacture of a psychoactive substance (cll 24 and 25);
    • · Failing, when applying for approval of a psychoactive product, to provide relevant information relating to its ingredients or effects (cl 39);
    • · Importing, manufacturing or selling an approved product in breach of any approval conditions (cl 40); and
    • · Selling, supplying, offering to sell or supply, or possessing with intent to sell or supply, a psychoactive substance that is not an approved product (cl 62).
28. Summary Proceedings Act 1957, s 67(8).
29. R v Wholesale Travel Group Inc [1991] 3 SCR 154; AG v Malta (ECtHR, App 1664/90).
30. Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2005] 1 AC 264.
31. Clause 80.
32. For example, by issuing advice to the public, withdrawing approval or taking steps to recall a product from sale.
33. Clauses 46–48.
34. Clause 49.
35. Bill of Rights Act, s 19(1); Human Rights Act 1993, s 21(1)(i).
36. Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55] and [109]; McAlister v Air New Zealand Ltd [2009] NZSC 78, [2010] 1 NZLR 153 at [51] and [105]. Comparably situated groups in these circumstances may be 17 and

18-year-olds. Material disadvantage may be caused by an inability to be employed in a business which sells approved products.

37. R v Secretary of State for Work and Pensions, Ex parte Carson [2005] UKHL 37, [2006] 1 AC 173 at [41], [91].
38. The Supreme Court of Canada has held that in considering government’s attempts to reduce harm arising from tobacco consumption, the answers may not be simple or evident; there may be room for debate about what will work and what will not, and the outcome may not be scientifically measurable: Canada v JTI-MacDonald Corp [2007] 2 SCR 610 at [41]–[43].
39. Clauses 53 and 83(1)(d).

40. Clauses 51, 53–58, 83(1)(c) and 83(1)(e)–(i).

41. Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA) at [15]; Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) at [258].
42. Geoffrey Palmer A Bill of Rights for New Zealand: A White Paper [1984–85] I AJHR A6 at [10.58].
43. Canada v JTI-MacDonald Corp [2007] 2 SCR 610 at [41]–[43].

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 Psychoactive Substance 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.