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Drug and Substance Checking Legislation Bill (Consistent) (Section 25) [2020] NZBORARp 54 (26 November 2020)
Last Updated: 1 January 2021
26 November 2020
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Drug and Substance
Checking Legislation Bill
Purpose
- We
have considered whether the Drug and Substance Checking Legislation 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’).
- This
advice has been prepared in relation to the latest version of the Bill (PCO
23333/3.0). We will provide you with further advice
if we receive another
version of the Bill that includes amendments affecting 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 section 25 of the Bill of
Rights Act (minimum standards of criminal
procedure).
The Bill
- The
Bill is an Omnibus Bill. It amends the Misuse of Drugs Act 1975 and the
Psychoactive Substances Act 2013 to enable drug and substance
checking services
to operate legally in New Zealand.
- The
Bill amends the Misuse of Drugs Act 1975 to:
- enable the
Director-General of Health to appoint drug and substance checking service
providers to perform specified functions;
- require the
Ministry of Health to publish a list of drug and substance checking service
providers;
- allow members of
the public to supply a sample of a controlled drug to a service provider for
checking or to surrender it for the
purpose of disposal; and
- provide
protections for those providing and using drug and substance checking
services.
- The
Bill specifies the functions of drug and substance checking service providers as
being:
- to
provide harm reduction advice to help members of the public make informed
decisions about drug and psychoactive substance
use;
- to
test any sample of a drug or substance (which may be a controlled drug or
psychoactive substance) that a member of the public presents
for checking to
ascertain the composition and likely identity of the drug or substance;
- to
advise the member of the public who presented a sample of a drug or substance
for checking the outcome of the testing;
- to
dispose of any sample of a controlled drug or substance used in
testing;
- to
dispose of, or arrange for the disposal of, any drug or substance surrendered by
any member of the public for disposal;
- to
arrange for a sample of a drug or substance to be tested by an approved
laboratory.
- The
Bill also amends the Psychoactive Substances Act 2013 to allow service providers
to possess unapproved substances for drug checking
purposes and to provide the
substances to approved laboratories.
Consistency of the Bill with the Bill of Rights Act
Section 25 – Minimum standards of criminal procedure
Strict liability offences
- Section
25(c) of the Bill of Rights Act affirms the right to be presumed innocent until
proven guilty according to law. The right
to be presumed innocent requires that
an individual must be proven guilty beyond reasonable doubt, and that the State
must bear the
burden of proof.1
- The
Bill contains strict liability offences. Strict liability offences prima facie
limit s 25(c) of the Bill of Rights Act. This is
because a strict liability
offence may be proved by a finding that certain facts occurred without proof of
mens rea. The accused is required to prove a defence (on the balance of
probabilities), or disprove a presumption, to avoid liability.
- The
strict liability offences in the Bill cover two areas of conduct. Under clause
35DF, a person must not carry out specified functions
of a drug and substance
checking service provider without having been appointed. Under clause 35DE, it
is an offence for a service
provider to breach any of the terms or conditions of
its appointment. Both of these clauses provide a defence of ‘reasonable
excuse’ to these offences.
- We
note that there are currently no limitations on the terms and conditions that
may be set for a service provider. This may give
rise to issues of
proportionality, because a breach of these terms and conditions is a criminal
offence. Any terms and conditions
imposed on a service provider should be
reasonable and necessary. If they are not, this could raise issues of
inconsistency under
the Bill of Rights Act.
Justification
1 R v Wholesale Travel Group (1992) 84 DLR
(4th) 161, 188 citing R v Oakes [1986] 1 SCR 103.
- Strict
liability offences may nevertheless be consistent with the Bill of Rights Act if
the limits can be demonstrably justified in
a free and democratic society, as
per section 5 of that Act. This section 5 inquiry may be approached as
follows: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?
- is
the limit in due proportion to the importance of the
objective?
- We
consider that the strict liability offences in the Bill appear to be justified.
In reaching this conclusion we have taken into
account the nature and context of
the activity being regulated, the ability of the defendants to exonerate
themselves, and the penalty
levels.
- Strict
liability offences are more easily justifiable where they are in the category of
‘public welfare regulatory offences’.
The strict liability offences
in the Bill arise in the context of minimising harm. Providing services to
protect against the consumption
of unknown and potentially dangerous substances
is in the public interest, and failure to follow legislative requirements when
providing
these services undermines this core purpose. We consider that the
limit is therefore rationally connected to the objective.
- The
Bill contains the general defence of ‘reasonable excuse’ for both of
the strict liability offences. This defence relies
on information that is more
likely to be in the service provider’s knowledge – e.g. the breach
was an accident, was due
to some other cause outside the defendant’s
control, or the defendant took all reasonable precautions and exercised due
diligence.
The court can also take into account all relevant matters including
the likelihood of the hazard or risk concerned, the degree of
harm that might
result from the hazard or risk, the person’s knowledge, and the
availability and suitability of ways to eliminate
or minimise the risk.
Accordingly, we are satisfied that the limit is no more than necessary to
achieve the objective of minimising
harm.
- The
penalty is the same for both of the offences in the Bill (liable on conviction
to a fine not exceeding $5,000). We note that this
is somewhat unusual given
that the offences are addressing two different types of conduct. However, these
penalties are in line with
penalty ranges for other regulatory regimes. This is
proportionate to the importance of the Bill’s objective which is to
minimise
drug harm and promote health.
- For
the above reasons, we consider the strict liability offences to be justified in
terms of s 25(c) of the Bill of Rights Act.
2 Hansen v R [2007] NZSC 7
[123].
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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