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Conservation (Indigenous Freshwater Fish) Amendment Bill (Consistent) (Section 25(c)) [2018] NZBORARp 68 (26 July 2018)
New Zealand Bill of Rights Act Reports
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Conservation (Indigenous Freshwater Fish) Amendment Bill (Consistent) (Section 25(c)) [2018] NZBORARp 68 (26 July 2018)
Last Updated: 4 January 2019
26 July 2018
LEGAL ADVICE
LPA 01 01 23
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Conservation
(Indigenous Freshwater Fish) Amendment Bill
Purpose
- We
have considered whether the Conservation (Indigenous Freshwater Fish) 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
this conclusion we have
considered the Bill’s consistency with s 25(c) of the Bill of Rights Act
(the right to be presumed
innocent until proved guilty). Our analysis is set out
below.
The Bill
- The
Bill amends the Conservation Act 1987 (‘the Act’). Its objective is
to improve and clarify the Act’s provisions
relating to the management of
freshwater fish, including indigenous freshwater fish, to ensure that effective
tools are available.
The Bill clarifies and restructures offences in the Act,
and clarifies restrictions relating to fishing and other activities that
may
affect freshwater fisheries. Amendments to section 48A of the Act enable
regulations and notices to be made relating to freshwater
fisheries, but
provides that those regulations or notices do not affect Māori fishing
rights.
Consistency of the Bill with the Bill of Rights Act
Section 25(c) – Right to be presumed innocent until proved 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 right to be presumed
innocent requires
the prosecution to prove an accused person’s guilt
beyond reasonable doubt.
- Clause
7 of the Bill replaces regulation 70 of the Freshwater Fisheries Regulations
1983, inserting new section 26ZHB into the Act
and making it a statutory offence
to take indigenous freshwater fish without authorisation. The offence carries a
penalty of a fine
not exceeding $5,000. Read in conjunction with s 43B of the
Act, new s 26ZHB creates a strict liability offence with a reverse onus.
This
means the defendant must prove the elements of the defence (in this case, that
they did not intend to commit the offence and
took all reasonable steps to avoid
doing so) in order to escape liability. A defendant who is unable to prove these
matters could
be convicted even if reasonable doubt exists as to their
guilt.
- Strict
liability offences and reverse onus provisions both limit the right to be
presumed innocent until proved guilty, affirmed in
s 25(c) of the Bill of Rights
Act.
- Where
a provision is found to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is demonstrably justifiable in terms of s 5 of the Bill of Rights
Act. On balance, we
consider that this limitation is justified in the context of
the Act’s regulatory regime, noting in particular:
- the
objective of encouraging and enforcing compliance with rules protecting and
improving the conservation management of indigenous
freshwater fish;
- the
practical implications of a prosecutorial requirement to prove all elements of
the offence (including the absence of a defence)
and, correspondingly, that
matters of the defence are likely to fall peculiarly within the knowledge of the
defendant; and
- the
penalty is imposition of a fine and not a sentence of imprisonment, and the
maximum fine of $5,000 is proportionate to the gravity
of the
offence.
- We
therefore consider that the strict liability, reverse onus offence contained in
the Bill appears to be justified.
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
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