You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2019 >>
[2019] NZBORARp 4
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Misuse of Drugs Amendment Bill (Consistent) (Section 25(c)) [2019] NZBORARp 4 (8 February 2019)
Last Updated: 20 March 2019
8 February 2019
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Misuse of Drugs
Amendment Bill
Purpose
- We
have considered whether the Misuse of Drugs 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 21797/1.5). 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 25(c) (the right to be
presumed innocent until proved guilty
according to law). Our analysis is set out
below.
The Bill
- The
Bill amends the Misuse of Drugs Act 1975 (‘the Act’)
to:
- allow
the Minister of Health to issue temporary drug notices, classifying new
substances as Class C controlled drugs, that have effect
for up to a year;
- provide
a clear statutory basis for Police discretion not to prosecute for offences of
simple possession and use of controlled drugs,
and
- classify
the synthetic cannabinoids 5F-ADB and AMB-FUBNACA as Class A controlled
drugs.
- The
purpose of the Bill is to enable temporary drug orders to be issued for the
immediate classification of emerging and potentially
harmful substances while
the Minister of Health undertakes the scheduling processes in the Act. The Bill
also provides a statutory
basis for Police discretion to decide not to prosecute
in particular cases, which is consistent with a health-based approach to the
possession and use of controlled drugs.
Consistency of the Bill with the Bill of Rights Act
Section 25(c) – the right to be proved innocent until proved guilty
according to law
- Section
25(c) of the Bill of Rights Act affirms the right of everyone charged with an
offence to be presumed innocent until proved
guilty according to law. The right
to be presumed innocent requires the Crown to prove an accused person’s
guilt beyond reasonable
doubt. In general, a provision which requires an accused
person to disprove on the balance of
probabilities the existence of
a presumed fact, that fact being an important element of the offense in
question, would violate the
presumption of
innocence.1
- Section
6(6) of the Act states:
For the purposes of [the offence of
possession for supply], a person is presumed until the contrary is proved to be
in possession
of a controlled drug for [the purpose of supply] if he or she is
in possession of the controlled drug in an amount, level, or quantity
at or over
which the controlled drug is presumed to be for supply.
- This
presumption reverses the onus of proof so that, to avoid a conviction for
supply, a defendant who is in possession of the fixed
quantity of the drug in
question must prove on the balance of probabilities that he or she was not in
possession of the drug for
supply.
- If
the Act does not specify a quantity for the presumption of supply in respect of
a particular controlled drug, the default level
of 56 grams or more applies.
This is significantly higher than any of the specified levels for particular
drugs in the Act. The temporary
drug order provisions in the Bill make no
provision for the Minister of Health to specify a quantity level for presumed
supply, which
means the default quantity of 56 grams will apply to drugs listed
in these orders.
- The
Bill therefore creates a presumption that the possession of 56 grams or more of
a drug named in a temporary drug order is for
the purpose of supply. This
presumption creates a prima facie breach of s 25(c) of the Bill of Rights
Act because it imposes an obligation on an accused to prove on the balance of
probabilities
that he or she did not intend to supply that drug.
- We
note that on two previous occasions, Bills adding new drugs to the Schedules of
the Act have been found to unjustifiably breach
this section of the Bill of
Rights Act. On both occasions, the reason was that the quantity for presumed
supply was identified as
too low and could potentially capture those merely
stockpiling the drug for personal use, rather than those with an intention to
supply.
Section 5 justified limitation
- Where
a Bill is found to be prima facie inconsistent with a particular right or
freedom, it may nevertheless be found to be consistent with the Bill of Rights
Act if the
inconsistency is considered to be a reasonable limit that is
justifiable under s 5 of the Act. The inquiry under s 5 is essentially
two-fold:2
- does
the provision serve an objective 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?
1 R v Oakes
(1986) 26 DLR (4th) 200 (Canadian Supreme Court); S v Bhulwana; S
v Gwadiso (1995) 2 SACR 748 (South African Constitutional Court) and R v
Sin Yau-Ming [1992] LRC (Const) 547 (Hong Kong Court of Appeal).
2 Hansen v R [2007] NZSC 7 at [123].
- is
the limit in due proportion to the importance of the
objective?
Is the objective sufficiently important?
- The
objective of the temporary drug order provisions is to enable a response to a
rapidly adapting synthetic drug market that poses
a high risk to public health.
New, and potentially harmful, products are swiftly produced and current
classification processes, which
occur via legislative amendment, are unable to
keep pace. By way of example, the two drugs being scheduled in this Bill have
been
provisionally linked to approximately 50-55 deaths in New Zealand since
mid-2017, when information on them began to be collected.
- Temporary
drug classification presents a faster means than legislative amendment to
provide immediate control of potentially harmful
emerging drugs. A temporary
drug order would allow the Minister to classify harmful drugs as they emerge,
while seeking advice and
beginning the process of full legislative
classification. Without this agility, the response to such drugs may not be as
effective
as the market quickly moves to new substances not yet scheduled under
the Act.
- As
noted in Hansen, as well as previous advice to the Attorney-General on
amendments to this Act, the control of supply of harmful drugs is a significant
and important objective. We have concluded that the purpose of this amendment is
a significant and important objective.
Is there a rational
connection between the limit and the objective?
- By
differentiating between a lesser possession offence and more serious supply
offence, the Act seeks to control harmful drugs by
focusing on persons intending
to distribute them. The Law Commission has suggested that the main reason for
the presumption for supply
in s 6(6) is that if there was no presumption, it
would sometimes be difficult for the prosecution to prove that the accused was
in possession of the drug with intent to supply it. The prosecution would
potentially have to call expert evidence about the ordinary
patterns of use of
the drug in order to demonstrate that the accused possessed more of the drug
than would usually be possessed by
a high user. This would be time-consuming and
expensive.3 The presumption may also result in more
successful convictions of persons who intentionally supply classified drugs and
create a strong
deterrent for people contemplating supplying these
substances.
- The
same regime will apply to substances classified under a temporary drug order,
assisting in the prosecution of suppliers of newly
classified drugs. We have
concluded that there is a rational connection between the limit on the right
under s 25(c) of the Bill
of Rights Act and the Bill’s objective of
controlling new and harmful drugs.
Is the impairment of the right
greater than reasonably necessary?
- In
obiter dictum statements the Court in Hansen suggested that a
reverse onus might be justified under s 5 if it were set at a high enough level
to reduce or avoid the possibility
of wrongful convictions resulting from
operation of the presumption. Tipping J
stated:4
“...it becomes crucial at
what quantity of the drug the presumption is fixed. It matters whether the
trigger amount is set on
the basis that possession of such an amount raises a
bare probability that the purpose of the possession is supply, a high
probability
that such is the accused’s purpose, or a near certainty. The
higher the probability of supply deriving
3 Law Commission Controlling and Regulating Drugs
(NZLC IP16, 2010).
4 R v Hansen [2007] NZSC 7 at [143].
from possession of the trigger amount, the more justifiable will be a
presumption of supply. The lower the degree of probability,
the more problematic
such a presumption becomes.”
- Following
Hansen, previous advice on amendments to the Act has taken the position
that the threshold must be so high as to make it highly probable
or nearly
certain that the purpose of possession is for supply.5
A threshold which is too low will impair the right greater than
reasonably necessary, and risks breaking the rational link between
the limit and
the objective.
- As
noted above, the temporary drug orders permitted by this Bill will set the
quantity for presumed supply at the default level of
56 grams or more. By way of
comparison the next highest threshold, cannabis plant, is set at 28 grams (or
100 cigarettes containing
the drug). While the Bill does not limit the type of
drug which may be classified under a temporary drug order, the type of harmful
synthetic substance contemplated to be addressed by the Bill is significantly
more potent and harmful than the cannabis plant and
would typically require a
smaller quantity for a single dose. Accordingly, 56 grams or more would
represent a significant amount
unlikely to be held solely for personal use.
- Because
the temporary drug orders made under the Bill are contemplated to be matters of
urgency to prevent public harm, it is not
reasonably practicable for each
product to be consulted on and an individual quantity limit set for each drug.
This process can be
engaged in under the existing provisions of the Act when the
Minister progresses to full legislative classification. Setting the
quantity for
presumed supply at the default level supports the prosecution of supply
offences, while raising the threshold to the
highest quantity currently listed
within the Act.
Is the limit in due proportion to the importance
of the objective?
- As
outlined above, the control of supply of harmful drugs is considered a
significant and important objective. In addition to this,
steps have been taken
in the Bill to limit the impact of the Minister’s ability to issue
temporary drug orders:
- the
Minister of Health must not make an order unless satisfied that the named drug
poses or may pose a risk of harm to individuals
or to
society;6
- such
orders last for a maximum of one year, and may be renewed only
once;7
- orders
are disallowable instruments which must be presented before the House of
Representatives and may be voted down;8
and
- following
the issue of a temporary drug order, the Minister must begin the classification
process for the appropriate scheduling of
the drugs, including seeking advice
from the advisory committee on the appropriate limit for the
drug.
- The
above steps have been taken to limit the temporary drug order provisions to what
is reasonably necessary in order for them to
fulfil their objective under the
Bill.
5 See, for example, Hon Christopher
Finlayson Report of the Attorney-General under the New Zealand Bill of Rights
Act 1990 on the Misuse of Drugs Amendment Bill (Ministry of Justice,
2010)
6 Clause 5, new section 4C(3).
7 Clause 5, new section 4F.
8 Clause 5, new section 4G.
Conclusion
- As
the temporary drug order provisions impose the highest limit specified in the
Act for supply, the drugs anticipated to be caught
by the Bill are those that
pose a risk of public harm, and there are sufficient limits on the provisions to
ensure they limit the
right only as reasonably necessary, we consider these
provisions are consistent with the right to be presumed innocent until proved
guilty affirmed by s 25(c) of the Bill of Rights Act.
Newly
classified synthetic cannabinoids
- We
also note that the Bill will classify the synthetic cannabinoids 5F-ADB and AMB-
FUBNACA as Class A drugs under the Act. The Bill
does not specify the quantity
for presumed supply of these drugs, which means the default quantity of 56 grams
will apply. For the
reasons discussed above, we consider that the inclusion of
these drugs engages the right under s 25(c) of the Bill of Rights Act
but is a
justified limitation on that right.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Edrick Child
Acting Chief Legal Counsel Office of Legal Counsel
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2019/4.html