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Brokering (Weapons and Related Items) Controls Bill (Consistent) (Sections 14, 25(c)) [2017] NZBORARp 32 (12 June 2017)
Last Updated: 7 January 2019
12 June 2017
Hon Christopher Finlayson QC, Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Brokering (Weapons and
Related Items) Controls Bill
Purpose
- We
have considered whether the Brokering (Weapons and Related Items) Controls 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)
and s 25(c) (right to presumed
innocent until proven guilty). Our analysis is
set out below.
The Bill
- The
Bill establishes a regime to regulate the brokering of weapons and related items
by New Zealanders and New Zealand entities. Brokering
involves negotiating,
arranging, or facilitating the international movement of arms and military
equipment from one foreign country
to another foreign country. It does not
involve imports, exports, or internal movements of arms and military equipment
within New
Zealand. This Bill supports New Zealand’s commitments under the
Arms Trade Treaty, which was ratified in 2014.
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, including the freedom to seek,
receive, and impart information and
opinions of any kind in any form.
- Clauses
21 and 22 of the Bill engage s 14 by compelling expression. Clause 21 of the
Bill requires brokers to keep records for a period
of at least 5 years, and must
answer any questions from the Secretary of Foreign Affairs and Trade or a
constable or provide copies
to them when required to do so.
- Clause
22 establishes an offence for failing to comply with these requirements without
reasonable excuse. An individual is liable
on conviction to a term of
imprisonment not exceeding six months and/or a fine not exceeding $10,000 for
failing to comply with the
requirements of cl 21 without a reasonable
excuse.
Is the limitation justified and proportionate under s 5
of the Bill of Rights Act?
- Limitations
on rights and freedoms may still be consistent with the Bill of Rights Act if
they can be considered reasonable limits
that are demonstrably justified under s
5 of that Act. The s 5 inquiry may be summarised as:1
- does
the objective serve a purpose sufficiently important to justify some limitation
of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the
objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
- There
is a risk of weapons or related items moving to illegitimate users or
undesirable locations. The objective of the provision
is to reduce that risk.
The public has a strong interest in records of brokering being kept, and in
those records being inspected
by the Secretary of Foreign Affairs and Trade or a
constable where necessary. This objective is sufficiently important to justify
the limitation on a broker’s freedom of expression, and the limit on that
right is rationally connected with that objective.
- We
also consider that the right to freedom of expression is impaired no more than
is reasonably necessary, and that the limit is in
due proportion to the
importance of the objective. The offence in cl 22 is not a strict liability
offence. A broker will not be convicted
for failing to comply with the
requirements in cl 21 if the prosecution cannot prove that they did not have a
reasonable excuse for
not doing so. Finally, due to strong public interest in
keeping records relating to brokering, it is logical that failing to comply
with
cl 21 could carry with it a term of imprisonment.
- We
consider that the Bill appears to be consistent with the right to freedom of
expression affirmed in s 14 of the Bill of Rights
Act.
Section 25(c) – Right to be presumed innocent until proven guilty
- 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.
- The
purpose of s 25(c) is to protect the fundamental liberty and dignity of those
accused of offences in light of the grave consequences
a criminal charge and
conviction may entail.2 To this end, the right includes
three main components:3
- the
onus of proof lies with the prosecution throughout
- the
standard of proof is “beyond reasonable doubt”, and
1 Hansen v R [2007] NZSC
7.
2 See R v Oakes (1986) 26 DLR
(4th) 200 (SCC) at [212 – 213].
3 See, Butler & Butler, The New Zealand Bill
of Rights Act: A Commentary (LexisNexis NZ Ltd, Wellington, 2015) at
[23.4.19]; Paul Rishworth et al. The New Zealand Bill of Rights (Oxford
University Press, Melbourne, 2003) at [675.
- mens
rea (a guilty mind) is a requirement of the offence.
- The
Bill contains two clauses providing that an offence will be committed if done
“without reasonable excuse”. These are:
- breaching
the conditions of a registration or permit other than in the course of carrying
out brokering activity (cl 13)
- failing
to keep or produce records or answer questions (cl 22)
- “Without
reasonable excuse” provisions were formerly considered to reverse the onus
of proof (at least where the defendant
was proceeded against summarily), thereby
limiting a defendant’s right to be presumed innocent until proved guilty.
However,
upon the repeal of s 67(8) of the Summary Proceedings Act 1957,
offences of this nature in the Bill should be interpreted consistently
with the
presumption of innocence. Accordingly, the prosecution must prove beyond a
reasonable doubt that a defendant did not have
a reasonable excuse once an
evidential burden is met.4
- We
consider that the Bill appears to be consistent with the right to be presumed
innocent until proven guilty affirmed in s 25(c)
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
4 King v Police
[2016] NZHC 977 at [24].
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