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Criminal Cases Review Commission Bill (Consistent) (Sections 14, 19, 21) [2018] NZBORARp 81 (14 September 2018)
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Criminal Cases Review Commission Bill (Consistent) (Sections 14, 19, 21) [2018] NZBORARp 81 (14 September 2018)
Last Updated: 5 January 2019
14 September 2018
Attorney-General
Criminal Cases Review Commission Bill – Consistency with the New Zealand
Bill of Rights Act 1990
Our Ref: ATT395/286
- We
have reviewed the Criminal Cases Review Commission Bill (CCRC Bill) for
consistency with the New Zealand Bill of Rights Act 1990 (Bill of Rights
Act). A copy of the current version of the Bill is enclosed
with this advice. We have concluded that the Bill appears to be consistent
with the Bill of Rights Act.
Introduction
- The
CCRC Bill establishes the Criminal Cases Review Commission (Commission),
the purpose of which is to review convictions and sentences and decide whether
to refer to them to an appeal court.
- Currently,
if a person who has been convicted of an offence considers they have suffered a
miscarriage of justice, they may apply
to the Governor-General for the exercise
of the Royal prerogative of mercy. The Royal prerogative of mercy may be
exercised either
to grant a person a free pardon, or to refer a person’s
conviction or sentence to the relevant appeal court for a fresh appeal.
The
Commission will replace the second of these functions, currently exercised by
the Governor-General under section 406 of the
Crimes Act 1961.
- Under
the current system, and by convention, the Governor-General acts on the formal
advice of the Minister of Justice. Work on applications
for the Royal
prerogative of mercy is performed by lawyers in the Ministry of Justice. The
Commission is established as a new independent
Crown entity. It is an
independent body with dedicated staff focused on the identification of, and
responding to, possible miscarriages
of justice.
- The
CCRC Bill provides statutory grounds for referring a case back to the appeal
court. The Commission may refer a conviction or sentence
to the appeal court if
it considers it is in the interests of justice to do so, having regard to the
statutory criteria.
- The
Commission will have powers to regulate its own procedures, to initiate
inquiries into general matters that may be related to
cases involving a
miscarriage of justice, and to require persons to provide information and
evidence.
4848888_CRIMINAL CASES REVIEW COMMISSION_ BILL OF RIGHTS ADVICE
Consistency of the CCRC 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. The right has been interpreted to include the
right not to be
compelled to say certain things or to provide certain
information.1
- The
CCRC Bill includes two types of provision that prima facie limit freedom of
expression:
- 8.1 Compelled
expression: various provisions of the CCRC Bill require an individual to provide
information and/or evidence at the
request of the Commission; and
- 8.2 Restrictions
on speech: the CCRC Bill contains provisions preventing an individual from
expressing certain information.
- 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 is a reasonable limit that is
justifiable in terms of s 5 of the Bill of Rights Act. That inquiry may be
approached in the following
way:2
- 9.1 Does the
provision serve an objective sufficiently important to justify some limitation
of the right or freedom?
- 9.2 If so,
then:
- 9.2.1 Is the
limit rationally connected with the objective?
- 9.2.2 Does the
limit impair the right or freedom no more than is reasonably necessary
sufficiently to achieve the objective?
- 9.2.3 Is the
limit in due proportion to the importance of the objective?
Compelled expression – the provision
of documents and evidence
- One
aspect of the Commission’s investigative powers involves the
Commission
being able to compel persons to provide information or
evidence:
10.1 Clause 31(2) provides that the Commission “may obtain from any
person
... any information that the Commission considers relevant
to an investigation”;
10.2 Clause 32 provides that the Commission may, by written notice, require a
person to:
- 10.2.1 produce
documents or things that the person may hold and that may be relevant to the
investigation; and
1 See, e.g., Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705 (1977).
2 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1
at [121].
10.2.2 provide information in writing.
10.3 Clause 33 provides that the Commission may take evidence from a person
by:
- 10.3.1 requiring
the person, by written notice, to appear before the Commission to be examined on
oath or affirmation;
- 10.3.2 requiring
the person, on appearing before the Commission, to answer questions on oath or
affirmation;
- 10.3.3 permitting
the person to give evidence by any other means approved by the Commission and
requiring the person to verify that
evidence on oath or affirmation.
11. Clauses 32 and 33 are subject to the requirements
of clause 31(2)—the Commission must take reasonable steps to obtain the
information by consent, and it may only require a person to provide information
if the Commission considers that the information
is unlikely to be obtained
through any means other than under that section.
- Clause
38 provides that the Commission may apply to the District Court for orders
against a person on the grounds that they have “failed
without reasonable
excuse to comply with a requirement under section 32 or 33”. The
privileges applying to witnesses in a court
of law
apply.3
- Clauses
32 and 33 accordingly compel a person to provide the Commission with information
or evidence, and a refusal to provide such
information or evidence may lead to a
finding of contempt of Court. This compulsion is a prima facie limit on an
individual’s
right to freedom of expression under s 14 of the Bill of
Rights Act.
- In
our view, however, such a limit is likely to be justified under s 5 of the Bill
of Rights:
- 14.1 The
Commission’s purpose is to investigate potential miscarriages of justice,
and for those investigations to be undertaken
in a timely and efficient manner.
This is an objective that is, in our view, sufficiently important to warrant a
limitation on the
right protected by s 14.
- 14.2 The limit
is rationally connected with the objective in that the Commission’s
purpose is not to simply repeat arguments
or re-examine evidence that has
already been considered by the Courts—it is intended that applicants are
required to provide
“something new” that has not previously been
considered by the Courts. A set of provisions that allow the Commission
to
obtain that “something new” is connected to that objective.
3 Clause 37.
14.3 The limit impairs the right as little as possible to achieve the objective
in that:
- 14.3.1 the
right to obtain information requires the Commission to “take reasonable
steps” to obtain the information by
consent, without resort to compelling
its production;
- 14.3.2 the
Commission may only obtain information under cl 32 and 33 where it considers
that the information is unlikely to be obtained
through any means other than
those sections; and
- 14.3.3 in the
event the Commission applies to the Court for an order that a person comply with
a requirement under the CCRC Act, the
District Court is required to be satisfied
that the person has failed to comply “without reasonable
excuse”.4
These restrictions suggest that the Commission will
only be able to compel a person to provide information where there is no other
alternative means by which that information may be obtained.
14.4 The limit is proportionate to the Commission’s objective to
investigate
possible miscarriages of justice and to refer cases
to the appeal court.
- We
have also considered the Bill in light of the common law privilege against self-
incrimination. To the extent that a person may
be required by cl 32 or 33 to
provide documents or evidence that tend to incriminate them, we consider it
doubtful that such a limit
on the right affirmed by s 14 would be reasonable.
However, cl 37 provides that nothing in the CCRC Bill requires a person to
disclose
information to which the “the protections of privilege or
confidentiality recognised in subpart 8 of Part 2 of the Evidence
Act”
would apply. Section 60 of the Evidence Act 2006 provides a privilege against
self-incrimination, which would prevent
the Commission or a Court from requiring
persons to provide incriminating documents or evidence.
- We
therefore conclude that the provisions compelling persons to provide information
of evidence to the Commission do not appear to
be inconsistent with s 14 of
the Bill of Rights Act.
Restrictions on speech – prohibition on disclosure of
information
- Clause
34 of the CCRC Bill provides that a member or employee of the Commission, or a
person appointed as a specialist advisor to
the Commission, must not disclose
any information obtained by the Commission unless that disclosure is authorised
by cl 35.
- Clause
35 provides that disclosures are authorised if the Commission, or a member of
the Commission, is satisfied either that the
person with the right to consent to
disclosure has consented, or that disclosure is reasonably necessary for one of
a specified set
of purposes, including a criminal, disciplinary or civil
proceeding, as part of a report required to be made under the Act, or for
the
purposes of the Police deciding whether to prosecute an offence.
- This
would presumably require the Commission to prove that a defendant did not have a
reasonable excuse once some evidence of a reasonable
excuse is raised. See
King v Police [2016] NZHC 977 at [24].
- Clause
34 limits the right of a member or employee of the Commission from expressing
certain information. However, we consider that
the limit appears to be justified
under s 5 of the Bill of Rights Act in that the provision protects the privacy
of the person about
whom an investigation is being conducted, provides
exceptions where the public interest in disclosure of that information may
outweigh
the individual’s privacy concerns, and is both rationally
connected with, and proportionate to, protection of individual
privacy.
Section 21 – unreasonable search and seizure
- The
provisions relating to the Commissioner’s power to obtain information have
also been reviewed in light of s 21 of the Bill
of Rights Act, which affirms the
right to be secure against unreasonable search and seizure. The reasonable
justification test set
out in s 5 of the Bill of Rights Act does not apply to s
21—the Supreme Court has held that an unreasonable search cannot logically
be demonstrably justified in a free and democratic
society.5
- As
set out above, the Commissioner may obtain information and documents, and
examine under oath a person who the Commission considers
relevant to an
investigation.6 The Commission may apply to the
District Court for an order if a person fails to comply, without reasonable
excuse, with a request
from the Commission.7 The
privileges applying to witnesses in a court of law
apply.8
- In
our view, the operation of the CCRC Act requires the Commission be able to
obtain information relevant to its investigations. To
do so the Commission may
need information from persons or agencies other than the person who has made the
application. The Commission’s
powers are connected with the purpose for
which they are provided and proportionate. We accordingly conclude that they
appear to
be consistent with s 21 of the Bill of Rights
Act.
Section 19 – freedom from discrimination
- We
have considered whether cl 40 of the CCRC Bill may engage s 19 of the Bill of
Rights Act, which affirms the right of everyone to
be free from discrimination
on the grounds set out in s 21 of the Human Rights Act 1993. One of the
prohibited grounds of discrimination
is race. Clause 40 of the CCRC Bill
provides that the Minister, in appointing or recommending appointments, must
take into account
“the desirability of the Commission being able to draw
on knowledge or understanding of te ao Māori (the Māori world
view)
from within its membership”.
- We
consider that cl 40 does not engage the right affirmed by s 19—s 19(2) of
the Bill of Rights Act provides that “measures
taken in good faith for the
purpose of assisting or advancing persons or groups of persons disadvantaged
because of discrimination
that is unlawful ... do not constitute
discrimination”. To the extent cl 40 is designed to address barriers to
Māori
making applications to the Commission, cl 40 does not involve
discrimination on the basis of race.
5 Hamed v R [2011] NZSC 101, [2012]
2 NZLR 305 at [162].
6 Clauses 31-33.
7 Clause 38.
8 Clause 37.
- In
accordance with Crown Law policy, this advice has been peer reviewed by Paul
Rishworth QC, Senior Crown Counsel.
Recommendation
Note our advice that the Criminal Cases
Review Commission Bill appears to be consistent with the New
Zealand Bill of Rights Act 1990
|
Yes/No
|
We recommend that you: 26.1
Vicki McCall Crown Counsel 04 494 5634
|
Noted/Approved/Declined
Hon David Parker
Attorney-General
/ /2018
|
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