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National Animal Identification and Tracing Amendment Bill (Consistent) (Sections 14, 21, 25(c)) [2018] NZBORARp 69 (26 July 2018)
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National Animal Identification and Tracing Amendment Bill (Consistent) (Sections 14, 21, 25(c)) [2018] NZBORARp 69 (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: National Animal
Identification and Tracing Amendment Bill
Purpose
- We
have considered whether the National Animal Identification and Tracing 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 not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 21525/8.0). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- 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 25(c) (presumption of innocence).
Our analysis is set out below.
The Bill
- The
Bill amends the National Animal Identification and Tracing Act 2012 (‘the
principal Act’), which aims to protect New
Zealand against biosecurity
risks, ensure food safety in relation to animal products, and secure economic
benefits to New Zealand
by enhancing access to overseas markets for New Zealand
animals. The Bill’s objectives are to make technical amendments to
the
principal Act to support effective responses to biosecurity events (such as the
current Mycoplasma bovis response and eradication programme), and to
correct drafting anomalies in relation to search powers under the principal Act.
Specifically,
the Bill:
- removes
the requirement that search warrants must be in a prescribed form;
- aligns
the powers that can be exercised by a person conducting a warrantless search
with those that can be exercised by a person conducting
a search pursuant to a
warrant; and
- extends
the requirement to declare movements of regulated animals between two registered
locations to cover movements to any other
location, and extends the relevant
offence provision to cover failure to declare such
movements.
Consistency of the Bill with the Bill of Rights Act
Section 14 – freedom of expression
- Section
14 of the Bill of Rights Act affirms the right to freedom of expression,
including 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
- Section
31(1) of the principal Act requires the person with day-to-day charge of
regulated animals to declare movement of the animals
between two registered
locations. Clause 7(1) of the Bill re-enacts s 31(1) and extends it to require
declaration of movements to
any other location.
- The
requirement to declare movements prima facie limits the right to freedom
of expression. However, we are satisfied that the potential limits are
justified in terms of s 5 of
the Bill of Rights Act, as they are rationally
and proportionately connected to the important objectives of the principal
Act.
Section 21 – unreasonable search or seizure
- Section
21 of the Bill of Rights Act affirms that everyone has the right to be secure
against unreasonable search or seizure, whether
of the person, property, or
correspondence or otherwise. The right protects a number of values including
personal privacy, dignity,
and property.2
- Clause
49 of Schedule 2 of the principal Act confers a power to enter and inspect a
place without a warrant for the purposes of determining
whether or not a person
is complying with the Act. In our November 2010 advice on the Bill that became
the principal Act, we considered
this warrantless search was not unreasonable
for the purposes of s 21 as:3
- the
livestock sector is heavily regulated and, as a result, the privacy expectations
of industry participants are limited;
- the
power to enter and search is aimed at determining whether or not a person is
complying with the principal Act, or regulations
made or standards issued under
it; and
- the
Bill provides appropriate limits and safeguards for the exercise of powers; the
power may only be exercised at a reasonable time
and an officer or person is not
authorised to enter or inspect a dwelling-house, marae, or a building associated
with a marae, unless
the occupier consents or a search warrant has been
issued.
- However,
despite the above, due to a drafting anomaly, “search power” under
clause 1(1) of Schedule 2 of the principal
Act only refers to search powers
conducted under a search warrant. Clause 8 of the Bill extends the powers that
may be exercised
in undertaking warrantless searches to include the powers in cl
40 of Schedule 2 of the principal Act. These powers, which can be
exercised
currently only for searches conducted pursuant to a warrant,
include:
- requesting
a person to assist with the entry and search;
- seizing
anything that can be lawfully seized;
- copying
documents;
1 RJR MacDonald v
Attorney-General of Canada (1995) 127 DLR (4th)
2 See, for example, Hamed v R [2011] NZSC
101, [2012] 2 NZLR 305 at [161] per Blanchard J.
3 www.justice.govt.nz/assets/Documents/Publications/bora-National-Animal-Identification-and-Tracing-Bill.pdf-.pdf
- accessing
material from a computer and copying it; and
- taking
photos or recordings.
- All
these powers are available in respect of searches conducted with or without a
warrant under the Search and Surveillance Act
2012.4
- We
consider the extension of powers constitutes a search for the purposes of s 21
of the Bill of Rights Act. Ordinarily a provision
found to limit a particular
right or freedom may nevertheless be consistent with the Bill of Rights Act if
it can be considered reasonably
justified in terms of s 5 of that Act. However,
the Supreme Court has held that an unreasonable search logically cannot be
demonstrably
justified and therefore the inquiry does not need to be
undertaken.5 In assessing whether the extension of the
search and seizure powers in the Bill are reasonable, we have considered the
importance
of the objectives sought to be achieved and whether the provisions
are rationally connected and proportionate to those objectives.
- The
Bill’s extension of search and seizure powers is rationally connected to
ensuring that warrantless searches are effective
in detecting, and preserving
evidence of, non- compliance with the requirements of the principal Act (which,
in turn, is connected
to achieving the objectives of the Act). The factors
identified in paragraphs 6(a) to (c) above, and in particular the limits and
safeguards on the use of the powers, remain to support our overall view that the
powers are proportionate.
- We
therefore consider the Bill appears to be consistent with the right to be secure
against unreasonable search and seizure affirmed
in s 21 of the Bill of Rights
Act.
Section 25(c) – presumption of innocence
- Section
25(c) of the Bill of Rights Act provides that everyone charged with an offence
has the right to be presumed innocent until
proved guilty according to law. This
right requires the prosecution to prove, beyond reasonable doubt, that the
accused is guilty.
- Clause
8(4) of the Bill re-enacts the strict liability offence of failing to declare
movements of regulated animals between two registered
locations, and extends it
to cover undeclared movements to any other location.6
Defences to offences under the principal Act (set out in cl 94 of
Schedule 2) create a reverse onus. Strict liability and reverse
onus offences
limit s 25(c) of the Bill of Rights Act because:
- for
strict liability offences, the prosecution does not have to prove the defendant
intended to commit the offence; and
- for
reverse onus offences, once the prosecution has proven the defendant committed
the actus reus, the defendant must prove a defence (or disprove a
presumption) on the balance of probabilities to escape liability.
- We
consider this limitation is justified for the reasons set out in our 2010 advice
in relation to the existing strict liability offence:
4 See s 110 of the Search and Surveillance
Act 2012.
5 Ibid at [162] per Blanchard J.
6 See cl 7, new s 31(1) of the principal Act, and cl
8(4), new cl 82(2)(b) of Sch 2 of the principal Act.
- the
scheme set up under the principal Act has the important objective outlined in
para 4 above;
- the
limitation is rationally linked to this objective as it provides a strong
incentive for compliance with the scheme;
- the
offence involves straightforward issues of fact, and the relevant context is
often only known to the defendant. In such cases,
it is easier for the defendant
to explain why he or she took (or failed to take) a course of action than it is
for the Crown to prove
the opposite, justifying a strict liability offence;
and
- the
prescribed penalties at cl 82(4) are at the lower end of the scale and
proportionate, taking into account the potential circumstances
and relative
seriousness of offending.
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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