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Wildlife (Powers) Amendment Bill (Consistent) (Sections 14, 21, 22) [2015] NZBORARp 42 (2 September 2015)
Last Updated: 6 February 2019
2 September 2015
Hon Christopher Finlayson QC, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Wildlife (Powers)
Amendment Bill
Purpose
- We
have considered whether the Wildlife (Powers) Amendment 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’).
- 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 s 14 (freedom of expression), s
21 (unreasonable search and
seizure) and s 22 (liberty of the person).
Our analysis is set out below.
The Bill
- The
Bill amends the Wildlife Act 1953 (the principal Act) to reduce offending
against wildlife by improving the powers available to
effectively detect and
investigate offences and apprehend offenders.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression.
- Clause
9 of the Bill inserts new s 66A into the principal Act, which relates to
information that an authorised person or ranger can
require a person to provide
if they believe on reasonable grounds that a person has committed, is
committing, or is about to commit
an offence against the principal Act or
regulations made under the Act. An authorised person can require the person to
provide their
name and residential address. A ranger can require a person to
give their date of birth and produce evidence of their full name,
date of birth,
and residential address.
- Failure
to provide this information is an offence carrying a penalty of:
- in
the case of an individual, imprisonment for a term not exceeding one year or a
fine not exceeding $100,000, or both, and
- in
the case of a body corporate, a fine not exceeding
$200,000.
- Freedom
of expression includes the right to say nothing or the right not to say certain
things.1 The Bill’s new requirements to provide
information could therefore limit freedom of expression where a person is
required to
provide personal information and make certain statements.
- To
the extent the requirement to provide this information could be considered to
engage the right to freedom of expression, we consider
the limitation is
justified under s 5 of the Bill of Rights Act. This is because:
- the
Bill serves an important objective – to reduce offending against
wildlife
- there
is a rational connection to the objective - the required information will enable
authorised persons to identify people who have
committed offences against
wildlife
- the
right is minimally limited - the information required is factual in nature and
can only be compelled where there are reasonable
grounds to suspect a person has
committed, is committing, or is about to commit an offence, and
- the
limitation is in due proportion to the importance of the objective.
- We
therefore conclude the Bill appears to be consistent with the rights affirmed in
s 14 of the Bill of Rights Act.
Section 21 – Security against unreasonable search & seizure
- Section
21 of the Bill of Rights Act affirms the right to be secure against unreasonable
search and seizure.
- Clause
6 of the Bill amends s 39 of the principal Act to provide that a ranger may
seize any other evidential material2 they reasonably
believe relates to the investigation of an offence against the principal Act or
any regulations made under that Act.
- 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 and contain requirements indicating that any seizure must be a
reasonable one or would need
to be exercised consistently with s 21 of the Bill
of Rights Act.
Section 22 – Liberty of the person
- Section
22 of the Bill of Rights Act affirms the right not to be arbitrarily arrested or
detained.
- Clause
7 of the Bill establishes powers which may be said to engage s 22. These powers
include that:
- a
ranger may, in investigating a suspected offence, stop and keep stopped for a
period that is reasonable in the circumstances any
person or thing, or any
article in transit (new s 39A), and
1 Slaight Communications v
Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
2 As defined in the Search and Surveillance Act
2012, section 3(1).
- an
authorised person may arrest a person without a warrant if the authorised person
believes that the person has committed or is committing
specific offences
against the principal Act (new s 39D).
- The
Court in Nielsen v Attorney-General found that "An arrest or detention is
arbitrary if it is capricious, unreasoned, without reasonable cause: if it is
made without reference
to an adequate determining principle or without following
proper procedures."3
- The
Bill requires that authorised persons and rangers must have reasonable cause or
reasonable grounds to exercise the powers. We
therefore conclude that the powers
to arrest or detain are not arbitrary, and that the Bill appears to be
consistent with the rights
affirmed in s 22 of the Bill of Rights
Act.
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
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 Wildlife
(Powers) 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.
3 (2001) 19 CRNZ at [34].
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