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Organised Crime and Anti-Corruption Legislation Bill (Consistent) (Section 25(c)) [2013] NZBORARp 53 (28 November 2013)

Last Updated: 21 April 2019

Organised Crime and Anti-Corruption Legislation Bill

28 November 2013 Attorney General

Legal Advice

Organised Crime and Anti-Corruption Legislation Bill: Consistency with the New Zealand Bill of Rights Act 1990

1. I have reviewed the Organised Crime and Anti-Corruption Legislation Bill (the Bill) for consistency with the New Zealand Bill of Rights Act 1990. In my opinion the Bill is consistent with the Bill of Rights Act.
   
2. The Bill proposes amendments to a suite of enactments that are commonly used by law enforcement agencies dealing with organised crime and corruption. The relevant provisions in these enactments are to be fortified and in some cases expanded in scope to better enable New Zealand to comply with existing relevant international obligations and to enable ratification of the United Nations Convention against Corruption.
   
3. Among the proposed amendments are the following:
   

3.1 New offences will be added to the Crimes Act 1961 that criminalise the design manufacture or adaptation of goods the purpose of which is to facilitate offences of dishonesty. The sentences for people-trafficking offences will be increased and there will be significant amendments to the offences of corrupting a foreign official.
3.2 The responsibility to report suspicious financial transactions under both the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 and the Financial Transactions Reporting Act 1996 will be expanded to accommodate all offences and not just serious offences.
3.3 An amendment to the Criminal Investigation (Bodily Samples) Act will confirm that the DNA profile databank may be accessed for the purpose of mutual assistance requests, and the Criminal Proceeds (Recovery) Act 2009 will allow for the registration of foreign restraining orders to be extended where an extradition request has been received.
3.4 The Policing Act 2008 will be amended to give Police the capacity to enter international agreements for the purpose of sharing biometric information with Interpol and corresponding international law enforcement agencies.

4. The only provision in the Bill that I have found it necessary to draw to your attention for the purpose of considering consistency with the Bill of Rights Act is clause 6, which proposes amendments to s 105C of the Crimes Act 1961 (Bribery of a foreign public official). A new offence will be created that can be committed by a body corporate or corporation sole. The corporate entity charged with such an offence will have a defence if it has taken all

reasonable steps to prevent the offence, but the defence will be presumed not to apply unless it puts the taking of reasonable steps in issue.

5. Clause 6 does not significantly interfere with the onus of proof, since the corporation need only put the matter in issue to put the burden of proof back on the prosecution. Even if the way the defence is dealt with constituted a limitation on the right to be presumed innocent guaranteed by s 25(c) of the Bill of Rights Act, it would be a demonstrably justified limit. The information that is necessary to establish the defence will be in the possession of the defendant, and the detection and prosecution of such offences would be unreasonably constrained if it were necessary for the prosecuting agency to disprove the taking of reasonable steps in every case.
   
6. This advice has been peer-reviewed by Helen Carrad, Senior Crown Counsel.
   

Austin Powell

Senior Crown Counsel

Disclaimer

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 Organised Crime and Anti-Corruption Legislation 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.