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Radiation Safety Bill (Consistent) (Sections 11, 14, 18, 21, 25(c)) [2014] NZBORARp 22 (16 July 2014)

Last Updated: 24 March 2019

Radiation Safety Bill

16 July 2014

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Radiation Safety Bill

Purpose

1. We have considered whether the Radiation Safety 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’).
   
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 the consistency of the Bill with ss 11 (Right to refuse to undergo any medical treatment), 14 (Freedom of expression), 18 (Freedom of movement), 21 (Security against unreasonable search & seizure) and 25(c) (Right to be presumed innocent until proved guilty). Our analysis is set out below.
   

The Bill

3. The Bill will repeal and replace the Radiation Protection Act 1965. The overarching purpose of the Bill is to protect people and the environment from the harmful effects of ionising radiation while at the same time recognising the many potential benefits of radiation use in providing health services and in industry and research. The Bill will also enable New Zealand to meet its international obligations relating to radiation protection, radiation safety and nuclear non-proliferation.
   

Consistency of the Bill with the Bill of Rights Act

Section 11 – Right to refuse to undergo any medical treatment

4. Section 11 of the Bill of Rights Act affirms the right to refuse to undergo any medical treatment.
   
5. Clause 60(1)(b) of the Bill requires a person to undergo non-invasive radiation testing during a declared emergency if the enforcement officer has reasonable cause to believe that the person has been exposed to radiation and may pose a health and safety risk to any person.
   
6. We consider that any potential limit on the right to refuse to undergo any medical treatment arising from this power is justifiable in terms of s 5 of the Bill of Rights Act. The Bill specifies that a requirement to undergo non-invasive radiation testing can be made only where the officer has reasonable cause to believe a person has been exposed to radiation

and may pose a risk to other people. The power is also only exercisable during a declared radiation emergency and to the extent necessary to reduce damage.

Section 14 – Freedom of expression

7. Section 14 of the Bill of Rights Act affirms that everyone has the right to freedom of expression, which includes a right to refrain from expression.
   
8. Clause 43 of the Bill requires an applicable person to answer any question an enforcement officer may reasonably ask. Clause 72 makes it an offence to fail to answer or provide a false or misleading answer to such a question.
   
9. We are satisfied that the potential limit on freedom of expression is justified in terms of s 5 of the Bill of Rights Act as it rationally and proportionately connected to the objective of the Bill. Clause 43 expressly provides that an enforcement officer must only ask questions which are reasonable in the context of monitoring compliance with the Act and New Zealand’s international obligations or to ascertain whether there are risks to health and safety of the public or the environment.
   

Section 18 – Freedom of movement

10. Section 18(1) of the Bill of Rights Act affirms that everyone lawfully in New Zealand has the right to freedom of movement and residence within New Zealand.
    
11. Clause 60 of the Bill creates emergency powers which could affect the right to freedom of movement, including directing a person to leave or refrain from entering a place. Clause 74 makes it an offence not to comply with an enforcement officer’s direction.
    
12. We are satisfied that the limitation on s 18 imposed by cl 60 of the Bill is justifiable. The purpose of the clause is to ensure the safety of individuals in the event of a radiation emergency. Restricting movement to protect the public from the hazards resulting from radiation emergencies is sufficiently important to justify some kind of limitation on the right to freedom of movement.
    

Section 21 – Security against unreasonable search & seizure

13. Section 21 provides the right to be secure against unreasonable search and seizure.
    
14. Clause 40 of the Bill allows enforcement officers to enter and inspect any place:

for the purpose of monitoring compliance with the Act and New Zealand’s international

obligations; or

in which they reasonably believe a radiation source is located or used; or

which they have a reasonable suspicion will be used in the commission of an offence against the Act or contains a threat to the public or the environment.

15. The Bill creates a range of powers for enforcement officers including inspecting of any item or document, taking samples or measurements, taking or making copies of documents and taking possession of and removing any equipment or device inspected. Radiation

sources may also be seized by customs officers, for instance where a source is being imported or exported without consent (cl 49).

16. We consider that the search and seizure provisions of the Bill are not unreasonable for the purposes of s 21. The powers are limited to the regulatory purpose of the Bill. Individuals and organisations that operate within a regulated industry can expect to be subject to scrutiny to ensure compliance with the law. Moreover, private dwellings may not be searched except with the consent of the owner or occupier or pursuant to a warrant issued under s 98 of the Search and Surveillance Act 2012.
    
17. Clause 60 provides that in a declared radiation emergency an enforcement officer may enter a place at any time without a warrant and without complying with cl 40. We consider this is also not unreasonable for the purposes of s 21. Radiation emergencies can only be declared where there are reasonable grounds to believe an actual and imminent danger exists. Enforcement officers may use emergency powers in or outside the emergency area, but only to the extent they are reasonably necessary to eliminate or reduce the damage caused by the radiation danger. Where private property has been entered an enforcement officer must advise the owner as soon as practicable.
    

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

18. Section 25(c) of the Bill of Rights Act affirms that everyone who is charged with an offence has, in relation to the determination of the charge, the right to be presumed innocent until proved guilty according to law.
    
19. The Bill creates a number of strict liability offences where it is not necessary for the prosecution to prove that the defendant intended to commit the offence. Strict liability offences raise a prima facie issue of inconsistency with s 25(c) because, once the prosecution has proven the defendant committed the act in question, the defendant must prove the defence (or disprove a presumption) on the balance of probabilities to escape liability. In the case of strict liability offences, a defendant who is unable to prove the defence, or disprove a presumption, could be convicted even if reasonable doubt exists as to her or his guilt.
    
20. We have identified the following strict liability offences in the Bill:
    
    • breaching the various fundamental requirements of the Bill (cl 65)
    • dealing with a radiation source without authorisation (cl 66)
    • providing false information in an application for authorisation or radiation safety plan (cl 67)
    • breaching the duties of an authorisation holder (cl 68)
    • failing to appropriately register a radiation source (cl 69)
    • obstructing, hindering, resisting or deceiving an enforcement officer (cl 73)
    • failing to comply with an enforcement officer in an emergency (cl 74)
    • failing to comply with a compliance order (cl 75)
      
21. We consider that the strict liability offences in the Bill appear to be justified. In reaching this conclusion we have taken into account the nature and context of the conduct being regulated, the ability of the defendants to exonerate themselves and the penalty levels.

Nature of the conduct

22. The Bill imposes obligations on those who deal with a radiation source in order to protect the health and safety of people and the environment from the harmful effects of ionising radiation. Radioactive material is inherently risky, even at small exposure rates. Those risks are not necessarily ‘visible’, harm is often irreversible, and radiation hazards can continue to pose risks over time. The offences therefore fall into the category of public welfare regulatory offences.
    
23. The courts have generally accepted that there is a distinction between "truly criminal offences" and offences that are considered to be in the realm of "public welfare regulatory offences". [1] A reversal of the onus of proof is generally considered to be more easily justifiable for regulatory offences. Those who choose to participate in regulated industries should be expected to meet certain expectations of care and accept the enhanced standards of behaviour required of them. [2]
    

Ability of the defendant to exonerate themselves

24. The Bill contains several defences which are relevant to the ability of the defendant to exonerate themselves. Clause 76 makes it a defence if the defendant proves that the commission of the offence was due to:
    
    • the act or omission of another person; or
    • an accident; or
    • some other cause outside the defendant’s control.
      
25. The defendant must then also prove that they had taken all reasonable steps to avoid the commission of the offence or offences of the same kind. Generally, the user or owner of radioactive material will be in the best place to know and control information relevant to whether an offence has taken place.
    

Penalty level

26. A reversal on the burden of proof is less of a concern where the penalty is relatively low and therefore has a less significant impact on the defendant. The strict liability offences in the Bill impose maximum fines of $20,000 to $100,000 for an individual or $100,000 to

$500,000 for a body corporate. Given that the offences involve an element of public safety, we consider them to be appropriate for strict liability offences.

Conclusion on the right to be presumed innocent

27. We conclude that the potential limit on the right to be presumed innocent until proved guilty is justifiable in terms of s 5 of the Bill of Rights Act.
    

Conclusion

28. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Tania Warburton

Acting Chief Legal Counsel Office of Legal Counsel

Footnotes

[1] Civil Aviation Authority v MacKenzie [1983] NZLR 78
[2] R v Wholesale Travel Group (1992) 84 DLR (4th) at 213

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 Radiation Safety 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.