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Animal Welfare Amendment Bill 2013 (Consistent) (Sections 21, 25(c)) [2013] NZBORARp 8 (12 April 2013)

Last Updated: 1 April 2019

Animal Welfare Amendment Bill

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: ANIMAL WELFARE AMENDMENT BILL 2013

12 April 2013 Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Animal Welfare Amendment Bill

1. We have considered whether the Animal Welfare Amendment Bill 2013 (PCO 17100/6.0)

(‘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 18 April 2013.

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 ss 21 (right to be secure against unreasonable search and seizure) and 25(c) (right to be presumed innocent until proved guilty) of the Bill of Rights Act. Our analysis under those sections is set out below.
   

The Bill

3. The Bill amends the Animal Welfare Act 1999 ('the Act') to improve the enforceability,

clarity and transparency of New Zealand’s animal welfare system.

4. The objectives of the Bill are to:
   
   • provide for clear and enforceable standards of animal welfare;
   • increase the range of enforcement tools to address low to medium level offending;
   • clarify animal owners’ obligations;
   • improve the transparency of decision-making under the Act, and of research, testing and teaching; and
   • enable animal welfare standards to evolve with societal expectations, scientific knowledge, good practice, and available technology.
     

Consistency with the Bill of Rights Act

Section 21 – Right to be secure against unreasonable search and seizure

5. Section 21 of the Bill of Rights Act protects the right to be secure against “unreasonable search or seizure, whether of the person, property, or correspondence or otherwise”.

Audit powers

6. Clause 37 inserts new ss 123A to 123D, which will enable the Ministry for Primary Industries to audit approved organisations to confirm that their status as an approved organisation is still appropriate. The audit may be seen to give rise to search and seizure issues. Section 123B provides that audits may include examinations, investigations and reviews, and may audit, inter alia, an organisation’s compliance with animal welfare law. Section 123D provides the powers an auditor may exercise, including examining the systems, processes and records of the approved organisation, and taking copies or extracts.
   
7. Currently, before declaring an organisation to be an approved organisation, the Minister for Primary Industries must be satisfied about a range of matters. However, there is no legal ability to require an approved organisation to undergo an audit to confirm that their status is still appropriate. We consider that, if the audit does indeed limit the right under s 21, the search and seizure powers appear to be for legitimate and appropriate purposes.

Furthermore, the expectations of privacy are not so high when an organisation chooses to apply and act as an approved organisation under the Act. We consider that the proposed audit powers are therefore reasonable in terms of s 21 of the Bill of Rights Act.

Inspection powers

8. Clause 40 amends s 127 of the Act, which relates to an inspector's power to inspect land, premises, places and stationary vehicles, aircrafts, and ships. Section 127 currently provides that an inspector may at any reasonable time enter the above without warrant for the purposes of inspecting any animal. Clause 40 inserts new subss (4A) and (4B).
   
9. Subsection (4A) provides that an inspector exercising a power of entry may take photographs, sound or video recordings, drawings, or other records of anything relevant to, and observed during, an inspection. Subsection (4B) provides that an inspector exercising a power of entry may take the carcass of a dead animal, or the tissue or other bodily samples from any dead or alive animal found during an inspection.
   
10. We consider it is not unreasonable for inspectors to have the power to record what is observed during the inspection and take evidence (including samples) to make a diagnosis or support any decision to seize or destroy an animal.
    
11. It follows that we consider that the proposed seizure power in the Bill does not unreasonably limit the right affirmed in s 21 of the Bill of Rights Act.
    

Section 25(c) – Right to be presumed innocent until proved guilty

12. 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.

13. Clause 14 re-enacts some of the reverse onus offences already provided in s 21 of the Act related to surgical procedures.
    
14. Clauses 18 and 46 effectively re-enact existing reverse onus offences (ss 36(2) – obligation to inspect traps and 157(4) – offenders to give name and address), while increasing their maximum penalties (from $1,200 and $900 respectively to $5,000 for an individual and $25,000 for a body corporate). These offences will also be infringement offences.
    
15. Clause 44 inserts provisions (new ss 156A to 156I) relating to compliance orders that an inspector may make. New s 156I provides the reverse onus offence of failing, without reasonable excuse, to comply with the compliance order (liable on conviction to a fine not exceeding $5,000 for an individual or $25,000 for a body corporate). This offence will also be an infringement offence.
    
16. Reverse onus offences raise a prima facie issue of inconsistency with s 25(c) of the Bill of Rights Act because, once the prosecution has proven the defendant committed the act in question, the defendant must prove the defence on the balance of probabilities to escape liability. In other criminal proceedings a defendant must merely raise a defence in an effort to create reasonable doubt. In the case of reverse onus offences, a defendant who is unable to prove a defence could be convicted even if reasonable doubt exists as to her or his guilt.
    
17. We consider that the above provisions place a limit on the right to be presumed innocent.
    

Is the limit on the right to be presumed innocent justified?

Clauses 44 (s 156I – compliance order) and 46 (s 157(4) – contact details)

18. 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 have considered the following factors in assessing whether a departure from s 25(c) can be justified under s 5 of the Bill of Rights Act:
    
    • the nature and context of the conduct to be regulated;
    • the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person; and
    • the penalty level.
      

19.A reversal of the onus of proof is generally considered to be more easily justifiable for "regulatory" offences such as the offences under clauses 44 and 46. Ownership or care of animals is a voluntary activity, with expectations and standards of care that should be met.

20.The prosecutor still has the burden of proving the defendant committed the offence. The scope of reasonable excuses will be within the knowledge of the person concerned and proof of it would not impose an undue burden on the defendant.

21.A reversal of the onus of proof is less of a concern where the penalty is relatively low and therefore has a less significant impact on the accused. We are satisfied that the penalties for the offences under clauses 44 and 46 are at the lower end of the scale (fine only) and are appropriate in the circumstances.

22. Furthermore, the reverse burden will only apply for a limited time only (if at all). The reverse onus attaches to these offences by virtue of s 67(8) of the Summary Proceedings Act 1957, which will be repealed when the Criminal Procedure Act 2011 (‘the CPA’) comes into force (intended commencement 1 July 2013). From commencement of the CPA 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.
    
23. Accordingly, in light of the above, we have concluded that the clauses appear to be justified under s 5 of the Bill of Rights Act.
    

Clauses 14 (s 21 – surgical procedures) and 18 (s 36(2) – traps)

24. These offences will continue to be reverse onus offences following the commencement of the CPA, by virtue of s 168A of the Act. These offences were considered in your report under the Bill of Rights Act on the Criminal Procedure (Reform and Modernisation) Bill.1 The report considered these reverse onus offences were demonstrably justified under s 5 of the Bill of Rights Act. It was considered that the humane treatment of animals is a matter of considerable social importance; any qualifying fact will be a matter that is within the

defendant’s knowledge and capacity to prove; and there is unlikely to be an undue burden on the defendant.

Conclusion

25. 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

Footnotes:

1. Presented to the House of Representatives pursuant to s 7 of the Bill of Rights Act and Standing Order 261 of the Standing Orders of the House of Representatives (15 November 2010) at [119]–[126]

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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 Plumbers, Gasfitters, and Drainlayers 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.