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Border Processing (Arrivals and Departures) Levy Bill (Consistent) (Sections 5, 14, 19, 21, 25) [2015] NZBORARp 14 (4 May 2015)

Last Updated: 17 January 2019

Border Processing (Arrivals and Departures) Levy Bill

4 May 2015

Hon Christopher Finlayson QC, Attorney-General


Consistency with the New Zealand Bill of Rights Act 1990: Border Processing (Arrivals and

Departures) Levy Bill

Purpose

1. We have considered whether the Border Processing (Arrivals and Departures) Levy 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 this conclusion, we have considered the consistency of the Bill with ss 14 (right to freedom of expression), 19(1) (right to freedom from discrimination), 21 (right to be secure against unreasonable search and seizure), and

25(c) (right to be presumed innocent). Our analysis is set out below.

The Bill

3. This Bill amends the Biosecurity Act 1993 and the Customs and Excise Act 1996 to impose a liability to pay a levy while an Order in Council (‘levy order’) is in force. The purpose of the levy is to fund the direct and indirect costs of border-processing functions carried out by the Ministry for Primary Industries (‘MPI’) and the New Zealand Customs Service (‘Customs’). In the case of both Acts, the Bill provides for a levy order to be made that prescribes the levy rate or the basis for calculating the levy, details of costs to be recovered, and other provisions relating to the administration of the levy.

4. The Bill aims to secure sustainable funding arrangements for MPI and Customs, and to ensure that border-processing costs are borne by those who directly benefit or give rise to the associated risks. More broadly, the Bill aims to ensure that New Zealand’s interest in protecting its borders is upheld.

5. In the case of both Acts, the Bill’s levy provisions are supported by a compliance audit regime intended to ascertain the extent to which those responsible for paying or collecting the levy are doing so; the appropriate amounts are being or have been paid; and statements, accounts, and records are being or have been kept.

6. MPI and Customs have advised us that both of the compliance audit regimes are in practice not intended to apply to travellers, but to collection agents only (eg airlines and cruise lines). This is demonstrated by the Customs audit provisions applying only to those responsible for collecting the levy. The Biosecurity Act amendments apply the audit provisions both to persons responsible for collecting the levy and those responsible for paying the levy. We understand this is to maintain consistency with the existing levy order regime in the Biosecurity Act, and to allow for situations where the levy is collected directly

from individuals travelling privately rather than through a collection agent (eg direct payment by the skipper of a private yacht).

7. Compliance with both audit regimes is incentivised through strict liability offences.

Consistency of the Bill with the Bill of Rights Act

Section 14 – Right to freedom of expression

8. Section 14 of the Bill of Rights Act affirms the right to freedom of expression. This includes the freedom to seek, receive, and impart information and opinions of any kind and in any form. The right has been interpreted as including the right not to be compelled to say certain things or to provide certain information. [1]

9. The Biosecurity and Customs audit provisions require statements, accounts, and records to be produced at the request of the auditor in order to ensure that the levy orders work as intended and that the correct amounts of the levy are being paid.

10. Whether these requirements amount to a limit on the right to freedom of expression is arguable, as they either compel the provision of factual information or prohibit the disclosure of misleading, deceptive or confusing information. This information is not of significant expressive value. Therefore, we consider that the imposition on the right to freedom of expression is minimal.

11. To the extent that the audit provisions could be considered to engage the right to freedom of expression, in light of the purpose of the provisions and the limited extent to which the requirements engage s 14, we consider the limitation is rationally connected with, and proportionate to, an important objective. The limitation is therefore justified under s 5 of the Bill of Rights Act.

Section 19(1) – Right to freedom from discrimination

12. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to freedom from discrimination on the grounds set out in the Human Rights Act 1993.

13. We note that new ss 140AB(a) and 288C(1)(a) allow for a levy order to prescribe different rates of levy, on any differential basis, for different persons or different classes of persons. This has the potential to be used in a manner which limits the s 19 right to freedom from discrimination (eg discrimination based on national origin).

14. We understand from the MPI and Customs that the provisions will not be implemented in a discriminatory fashion. For example, it may be that once the necessary operational analysis has been conducted that it is both fair and necessary to prescribe different levy rates for international arrivals at airports to international arrivals on a cruise liner.

Section 21 – Right to security against unreasonable search and seizure

15. Section 21 of the Bill of Rights Act affirms the right to be secure against unreasonable search or seizure. The right applies only in respect of those activities which constitute a “search or seizure”. Further, s 21 protects only against those searches or seizures that are “unreasonable” in the circumstances.

16. The Bill expands the existing compliance audit regime in ss 141A-141D of the Biosecurity Act to apply to the new levy introduced by new ss 140AA-140AB. The Bill also establishes a compliance audit regime in new ss 288F-288G of the Customs and Excise Act to apply to the new levy introduced by new s 288B.

17. We consider that both audit regimes are likely to constitute a search for the purposes of s 21 of the Bill of Rights. However, we do not consider the search power unreasonable in terms of s 21 for the following reasons:

• The search powers appear to be for a legitimate and appropriate purpose.

Section 25(c) – Right to be presumed innocent

18. Section 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proved guilty according to law. This means an individual must not be convicted where reasonable doubt as to his or her guilt exists. The prosecution must therefore prove guilt beyond reasonable doubt.

19. Strict liability offences create a prima facie inconsistency with section 25(c) by shifting the onus of proof onto the defendant. [3]

20. The Bill applies existing strict liability offences in the Biosecurity Act to the new Biosecurity levy provisions, and establishes several new strict liability offences in the Customs and Excise Act that apply to the new Customs levy provisions.

21. It is a defence for the defendant to prove that the offence was due to the act or omission of another person, an accident, or a circumstance outside their control, and that they took all reasonable precautions to avoid the commission of the offence.

22. Accordingly, the provisions create a prima facie inconsistency with s 25(c) of the Bill of Rights Act. However, we consider this to be a reasonable limit justified under s 5 of the Bill of Rights Act.

23. First, the objective of the provisions is to penalise failure to comply with the compliance audit regime. Incentivising compliance with the regime ensures that the levy orders work as intended, securing sustainable funding arrangements for MPI and Customs and upholding New Zealand’s interest of protecting its borders. This appears to be a sufficiently important purpose.

24. The limit on the right to be presumed innocent can be said to be rationally connected to the objective of ensuring the levy orders work as intended, as strict liability offences may be an appropriate way to incentivise compliance and hold people accountable for their failure to comply.

25. Further, the Bill provides statutory defences and it appears that it would be possible and practical for a defendant to make out a defence as provided. The availability of practical defences limits the impairment of the right.

26. In addition, the audit regime is not intended, and will in practice not apply, to travellers, but rather to collection agents only. The information which can exonerate such defendants is particularly within the realm of their knowledge. [4]

27. We note also the penalties faced are at the lower end of the scale and do not provide for terms of imprisonment.

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

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 Border Processing (Arrivals and Departures) Levy 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.

Footnotes

[1] RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th).

[2] R v Simmons [1988] 2 SCR 495

[3] R v Hansen at [38]-[39] per Elias CJ, [202] per McGrath J, [269] per Anderson J.

[4] See, for example, Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264.


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