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Autonomous Sanctions Bill (Consistent) (Sections 14, 17, 18) [2017] NZBORARp 17 (27 April 2017)
Last Updated: 6 January 2019
27 April 2017
Hon Christopher Finlayson QC, Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Autonomous Sanctions
Bill
Purpose
- We
have considered whether the Autonomous Sanctions 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. Our analysis
is set out
below.
The Bill
- The
Bill’s purpose is to enable New Zealand to impose and enforce sanctions
autonomously, so as to assist in maintaining or
restoring peace and security in
response to either a threat to peace and security in the Asia-Pacific region or
certain breaches
of international peace and security. New Zealand can currently
only impose sanctions when acting together with other members of the
United
Nations under the United Nations Act 1946. This Bill enables New Zealand to
impose and enforce sanctions independently of
the United
Nations.1
- The
Bill has the effect of:
- providing
a legislative framework for autonomous sanctions
- enabling
autonomous sanctions to be imposed in relation to certain individuals, entities,
and countries, so as to facilitate the conduct
of New Zealand’s
international relations with other countries and with entities and persons
outside New Zealand
- requiring
reporting of suspicion in specified circumstances, and
- providing
for the monitoring and enforcement of autonomous sanctions.
- The
Bill provides for flexibility by empowering the Governor-General (on the
recommendation of the Minister responsible for the administration
of the Act) to
make regulations that prescribe prohibitions or restrictions of any kind
(referred to in the Bill as “autonomous
sanctions”). Autonomous
sanctions can apply to assets, services
1 Note however, that the threshold for
recommending autonomous sanctions is that there is a threat to peace and
security in the Asia-Pacific
region or the United Nations Security Council
either has not acted under article 41 of the Charter of the United Nations
(whether
because of a veto or otherwise) or it has acted under article 41, but
the action is insufficient to maintain or restore peace and
security.
entities or persons, and are a prohibition or restriction imposed persons
travelling to, entering, or remaining in New Zealand, or
dealing with certain
assets, or with certain services.
- The
Bill also amends the United Nations Act 1946 to update penalty provisions and
harmonise it with the provisions governing autonomous
sanctions.
Consistency of the Bill with the Bill of Rights Act
Scope of the regulation making powers
- The
Bill’s description of “autonomous sanctions”, its purpose, and
the range of regulation making powers contained
in it, are all very broad in
scope. This wide scope potentially allows regulations to be made which could
limit a number of the rights
and freedoms affirmed in the Bill of Rights Act
(for example, the right to freedom of expression, affirmed in s 14, and the
rights
to freedom of association and movement, affirmed in ss 17 and 18).
- In
addition, provisions in the Bill relating to the duty to report suspicions (cl
15) and prohibitions and restrictions on individuals
who are not New Zealand
citizens or holders of a residence class visa travelling to, entering or
remaining in New Zealand (cl 10)
could be given effect through the making of
regulations under the Bill. These provisions, once able to be enforced, could
also limit
the rights and freedoms noted above.
- Section
6 of the Bill of Rights Act requires an Act to be given a meaning that is
consistent with the rights and freedoms affirmed
in the Bill of Rights Act,
where such an interpretation is properly available. Although the Bill contains
broad powers that could
affect rights protected under the Bill of Rights Act, it
also contains limits on the exercise of those powers. Any regulations made
pursuant to the Bill will have to be consistent with the Bill of Rights Act or,
where a measure is imposed that does limit a right
affirmed by the Bill of
Rights Act, this must be justifiable under s 5 of that Act. To be justifiable
under s 5, the regulation or
measure would have to be directed at, and
proportionate to a sufficiently important objective,2
which, in the case of this Bill, would be responding to a specific threat
to peace or security.
- There
are also safeguards in the Bill that protect rights affirmed by the Bill of
Rights Act and support the requirement for any regulations
made under the Bill
to be consistent with the Bill of Rights Act.
Safeguards
- Clause
13 of the Bill gives an individual the right to apply to the Minister for
amendment or revocation of a sanction or an exemption
from it, and a person
affected by the exercise of statutory decision making powers under the Bill
would have the right to judicially
review a decision affecting them, as affirmed
by s 27 of the Bill of Rights Act. Both these measures overcome a problem
experienced
with overseas sanction schemes that have been criticised because of
a lack of review mechanisms.3
2 Hansen v R [2007] NZSC 7.
3 The absence of any review mechanism from some
sanctions schemes has been the focus of considerable concern and criticism,
including
in the decision of the United Kingdom Supreme Court in Ahmed &
Others v HM Treasury [2010] 2
AC 534 and the European Court of Justice in Kadi v Council of the European
Union [2009] AC 1225.
- Clause
8 requires the Minister to be satisfied, before making a recommendation for
regulations to be made, that any proposed regulations
are consistent with the
purpose of the Bill, which reflects the need for any prohibitions or
restrictions to be justifiable. While
the purpose of the Bill is very broad, the
Minister’s determination of whether regulations meet the purpose must be
exercised
in accordance with general principles of administrative law. This
requires the Minister to make a determination that the basis for
making the
particular regulation meets the objective of the Bill, with regard to objective
standards (as opposed to subjective discretion).
Such standards include the
requirement to make proper inquiry and to pursue the statutory purpose.
- Clause
9(a) requires regulations made under the Bill to state the purpose of the
regulations and to include a description of the particular
threat to or breach
of peace and security to which the autonomous sanction responds. The threat
needs to be identified and considered
on a case-by-case basis. This again
reflects the requirement for the prohibitions and restrictions to be
justifiable.
- Clause
26(a) provides that regulations may be made prescribing the circumstances in
which compensation may be payable to persons or
entities in relation to assets
or services that are adversely affected by the imposition of autonomous
sanctions and for prescribing
the methodology for calculating such compensation.
This provides a means of addressing the potential restriction on the right to
freedom of association affirmed by section 17 of the Bill of Rights
Act.
Conclusion
- While
the Bill allows for the imposition of sanctions upon people, countries, assets
and services, the express limitations on the
Bill’s regulation and notice
making powers and the safeguards within the Bill mean that any sanctions imposed
in accordance
with the Bill are required to be consistent with the Bill of
Rights Act.
- We
have therefore 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
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