You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2013 >>
[2013] NZBORARp 54
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill (Consistent) (Section 14) [2013] NZBORARp 54 (6 December 2013)
Last Updated: 21 April 2019
Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill
6 December 2013 Attorney-General Legal Advice
Consistency with the New Zealand Bill of Rights Act 1990:
Smoke-Free Environments (Tobacco Plain Packaging)
Amendment Bill
- We
have considered whether the Smoke-free Environments (Tobacco Plain
Packaging)
Amendment Bill (PCO 17769/7.0) (‘the Bill’)
is consistent with the rights and freedoms affirmed in the New Zealand Bill
of
Rights Act 1990 (‘the Bill of Rights Act’). We understand that the
Bill will be considered by the Cabinet Legislation
Committee at its meeting on
Thursday, 12 December 2013.
- 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 14 (freedom of expression). Our
analysis under that section is
set out below.
THE BILL
- The
Bill amends the Smoke-free Environments Act 1990 (‘the Act’) and
seeks to create a plain packaging regime for tobacco
products in New Zealand,
similar to that which has been in place in Australia since December 2012. The
broad purpose of the Bill
is to improve public health in New Zealand by reducing
smoking prevalence. The Act, or regulations made under the Act, already ban
or
restrict almost all forms of tobacco-related promotion and advertising in New
Zealand.
CONSISTENCY WITH FREEDOM OF EXPRESSION
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including the freedom to seek,
receive, and impart information and
opinions of any kind in any form. The right to freedom of expression in s 14
extends to all forms
of communication that attempt to express an idea or meaning
1 including commercial expression such as advertising 2. However, the
Courts
have found limits on commercial expression more readily justifiable than other
forms of expression 3.
- The
Bill provides for regulation-making powers to control all elements of the design
and physical appearance of tobacco products and
any packaging used or intended
for use with
such products (cl. 17, new section 39A). The only
exception is that the product packaging may display the brand or company name,
but
even then only in accordance with the regulations (cl. 10, new s
31A(2)(b)).
- It
is clear that the regulation-making powers in the Bill could be used in a way
that would limit freedom of expression almost completely
in regard to packaging.
Indeed, the intent is that the regulation making powers will be used to the full
extent to create a plain
packaging regime in New Zealand in which the tobacco
companies would have almost no control over the appearance of their tobacco
products.
Justification
- Where
a provision appears to limit 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 a free and democratic society under s 5
of that Act. The
s 5 inquiry may be summarised as 4:
- does
the objective serve a purpose sufficiently important to justify some limitation
of the right or freedom?
- if
so, then:
i.is the limit rationally connected with the objective?
ii.does the limit impair the right or freedom no more than is reasonably
necessary for sufficient achievement of the objective?
iii.is the limit in due proportion to the importance of the objective?
Sufficiently important objective
- Clause
6 of the Bill sets out the specific policy objectives, which are to 5:
a.reduce the appeal of tobacco products and smoking, particularly
for young people b.further reduce any wider social acceptance and
approval of
smoking and tobacco products c.increase the noticeability and effectiveness of
mandated health warning messages and images
d.reduce the likelihood that consumers might acquire false perceptions about
the harms caused by tobacco products.
- For
the purposes of this advice it is sufficient to identify the relevant objective
as being to improve public health in New Zealand
by reducing smoking prevalence
through reducing the appeal of tobacco products and smoking. We consider that
this is a sufficiently
important objective to justify some limitation on freedom
of expression.
- We
note that the Bill of Rights Act affirms New Zealand’s commitment to the
International Covenant on Civil and Political Rights,
Article 19(3) of which
expressly states that the right to freedom of expression may be subject to
limitations necessary for the protection
of public health. In addition, we again
note that limits on commercial expression are more readily justifiable than
other forms of
expression.
Rational connection
- We
consider that the limit on the right to freedom of expression is rationally
connected to the objective. The Regulatory Impact Statement
(RIS) cites a broad
range of studies and reports supporting the contention that tobacco packaging
and promotion is a highly effective
form of marketing. More specifically, there
is evidence that tobacco packaging design can 6:
a.dilute the noticeability and effectiveness of written and
pictorial warnings about the harm caused by smoking;
b.mislead some consumers about the harmfulness of tobacco products (e.g.,
gold, blue, silver or purple have been shown to create the
perception that the
product is less harmful and easier to quit than red and black); and
c.make smoking more attractive (e.g., by creating the impression that people
likely to use the brand have certain desirable characteristics).
Limiting the right no more than is reasonably necessary
- Although
the regulations will not prevent tobacco companies from distinguishing their
products by brand or company name, the potential
limitation on freedom of
expression is otherwise complete. The question is therefore whether anything
less than this level of control
would sufficiently achieve the Bill’s
objective.
- In
RJR-MacDonald Ltd v Canada [1995] 7, the Supreme Court of Canada found
that legislation prohibiting the advertising of cigarettes was inconsistent with
the Canadian
Charter of Rights and Freedom’s protection of free speech.
The Court went through an analysis similar to a Bill of Rights s
5 inquiry and
found that the legislation was inconsistent with the Charter only because the
legislation did not limit the right to
freedom of expression as little as
reasonably possible in the circumstances. The Government had not demonstrated
that a blanket ban
on advertising was required, rather than some other less
restrictive regulation. In our view, this decision must be viewed in light
of
the more limited knowledge of the effect of tobacco marketing and promotion at
the time.
- The
RIS, at paragraphs [19] to [21], considers the option of new health warnings
covering a larger part of tobacco packaging than
is currently the case. This
would reduce but not eliminate the space for industry promotion and so would not
limit freedom of expression
to the same extent possible under the Bill. This
option is rejected on the basis that it still leaves tobacco companies with a
means
to promote their product, with the potential to undermine anti-smoking
initiatives as outlined in paragraph 11.
- We
consider that the almost complete limit on the freedom of expression in regard
to tobacco packaging is reasonably necessary. The
research cited in the RIS
shows that tobacco packaging is a highly effective form of marketing. Even if
strictly confined, it is
likely that it could still be used to enhance the
appeal of tobacco products and/or smoking generally.
Proportionate
to the objective
- The
limit on the right to freedom of expression must be proportionate to the
importance of the objective. In this instance, the objective
is of significant
importance. Since the 1950s, it has become well established that smoking causes
significant harm. According to
the RIS, at paragraph [1], smoking is the single
biggest cause of preventable death and disease in New Zealand, resulting in
approximately
5000 deaths each year. While the limit on freedom of expression is
almost complete, we consider that it is proportionate to the importance
of the
objective.
CONCLUSION
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
Footnote
[1] R v Keegstra [1990] INSC 224; [1990] 3 SCR 697,729,826.
[2] Irwin Toy Ltd v A-G (Quebec) (1989) 58 DLR (4th) 577 (SCC).
[3] RJR-MacDonald Ltd v Attorney General of Canada (1995) 127 DLR (4th)
1; Markt Intern and Beerman v Germany (1989) 12 EHHR 161 (ECtHR).
[4] Hansen v R [2007] NZSC 7.
[5] See paragraphs [9] to [11] of the Regulatory Impact Statement for discussion
of the wider objectives of the New Zealand’s
tobacco control policy.
[6] Regulatory Impact Statement, paragraphs [6] and [7].
[7] RJR-MacDonald Ltd v Canada [1995] 3 SCR 199 (SCC).
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 Smoke-free Environments (Tobacco Plain
Packaging) 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.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2013/54.html