You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2021 >>
[2021] NZBORARp 20
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Plant Variety Rights Bill (Consistent) (Sections 14, 19, 21) [2021] NZBORARp 20 (3 May 2021)
Last Updated: 20 May 2021
3 May 2021
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Plant Variety Rights
Bill
Purpose
- We
have considered whether the Plant Variety Rights 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 21920/3.6). 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
19 (freedom from discrimination),
and s 21 (unreasonable search and seizure).
Our analysis is set out below.
Summary
- The
Bill replaces the Plant Variety Rights Act 1987 (the PVR Act) to update and
modernise the plant variety rights regime and to give effect to the obligations
of the Crown under the
principles of the Treaty of Waitangi.
- Our
analysis largely focuses on the right to freedom of expression and the right to
freedom from discrimination. We considered whether
the various provisions of the
Bill that require individuals to provide or disclose information in relation to
‘plant variety
rights’ (PVRs) and compulsory licences, and in
relation to hearings conducted by the Commissioner of Plant Variety Rights (the
Commissioner), engage the right to freedom of expression. We also considered
whether the appointment of a Māori plant variety
committee and the
qualifications for membership of this committee could constitute discrimination
on the basis of race or ethnic
origins.
- We
have concluded that, to the extent that the Bill limits these rights and
freedoms under the Bill of Rights Act, these limits are
justified, and the Bill
appears to be consistent with the rights and freedoms affirmed in the Bill of
Rights Act.
The Bill
- The
PVR Act provides for the grant of intellectual property rights, called PVRs.
Plant breeders and developers may apply for PVRs
over new plant varieties they
have developed. The purpose of the plant variety right (PVR) regime is to
incentivise the development
and importation of new plant varieties. The PVR Act
is now over 30 years old and in need of modernisation to reflect the significant
changes in the plant breeding industry over this time.
- This
Bill replaces the PVR Act in providing a framework for protecting intellectual
property rights in plant varieties. The objective
of the Bill is to protect
intellectual property rights in
plant varieties and promote
innovation and economic growth, by incentivising the development and use of new
plant varieties. The aim
is to provide an appropriate balance between the
interests of plant breeders, growers and others, so that there is a net benefit
to society as a whole.
- The
purpose of the Bill, as outlined in cl 3, is to:
- revise
and consolidate the law on PVRs, in light of the changes made to the
International Convention for the Protection of New Varieties
of Plants in 1991
(UPOV 91)1; and
- give
effect to the obligations of the Crown under the principles of the Treaty of
Waitangi to recognise kaitiaki relationships with
taonga species and
mātauranga Māori in New Zealand
law.2
- The
Bill provides for certain other matters, not directly related to UPOV 91, to
modernise the regime.
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 in any form. The right to freedom of expression has also been
interpreted as including the right
not to be compelled to say certain things or
to provide certain information.3
- Various
provisions of the Bill require individuals to provide or disclose information
and these provisions prima facie limit the freedom of expression under s
14 of the Bill of Rights Act.
- Under
s 5 of the Bill of Rights Act, a limit on a right or freedom may be justified
where the limit seeks to achieve, and is rationally
connected to, a sufficiently
important objective, impairs the right or freedom no more than reasonably
necessary to achieve the objective,
and is otherwise in proportion to its
importance.4
Disclosure of
information
- Clauses
46, 69 and 107 require individuals to provide or disclose information in
relation to PVRs and compulsory licences.5 Many of
these provisions substantially re-enact existing obligations under the PVR Act.
The provisions are often related to specific
timeframes that,
1 The PVR Act gives effect to the 1978
version of the International Convention for the Protection of New Varieties of
Plants. Under
the Comprehensive and Progressive Agreement on Trans-Pacific
Partnership, New Zealand is required to either accede to UPOV 91 or
“give
effect” to UPOV 91.
2 The Waitangi Tribunal report Ko Aotearoa
Tēnei (Wai 262) framed the Crown’s Treaty obligations in the Plant
Variety Rights
regime as a requirement to provide a reasonable degree of
protection for kaitiaki relationships with plants of taonga species.
3 RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th)
1.
4 See Hansen v R [2007] NZSC 7, [2007] 3 NZLR
1 (SC).
5 A compulsory licence allows a licensee to carry
out acts covered by a grant without the permission of the PVR owner.
if not met, may result in cancellation or nullification of an application.
Information given to the Commissioner under cls 46 and
107 must be made publicly
available.6
- To
the extent that such provisions engage the right in s 14, we consider that they
are rationally connected to the Bill’s objective
of protecting
intellectual property rights in plant varieties. We also consider that they are
proportionate and limit the right to
freedom of expression no more than is
reasonably necessary. The information required under the Bill is regulatory in
nature and of
limited expressive value, applying only to those who are seeking
to utilise the PVR regime. Further, the information is necessary
to assist the
Commissioner in performing their functions, in particular to the function of
determining applications for PVRs and
compulsory licences.
- The
requirement that certain disclosed information be published by the Commissioner,
may disincentivise breeders from providing the
information due to concerns
around advantaging the competition. However, we consider the principle of
transparency to be more important
to the overall purpose of the PVR regime, as
this may encourage flow-on innovation and growth for the
regime.
Hearings and summons
- Clause
118 provides that, before exercising a discretion under the Bill or regulation
adversely to any applicant or other person,
the Commissioner must give the
person a reasonable opportunity to be heard.
- Notably,
cl 121 empowers the Commissioner to issue a summons to a person requiring that
person to attend a hearing before the Commissioner
to give evidence and produce
documents or other information relevant to the hearing. It is an offence, under
cl 124, to fail to provide
this information, without sufficient cause. A person
who commits such an offence is liable for a fine not exceeding $2,000 on
conviction.
- The
Bill only requires information necessary to assist the Commissioner in
performing their functions in relation to these hearings
and only applies to
those who are in a position to give evidence or produce information where the
Commissioner intends to exercise
their discretion. We consider that cl 121 is
intended to strengthen the ability for affected parties to be heard, which could
act
as an additional safeguard to ensure that the Commissioner is exercising
their discretion appropriately.
- We
therefore consider that the power to issue a summons is rationally connected and
proportionate to the Bill’s objective of
protecting intellectual property
rights in plant varieties and limit the right to freedom of expression no more
than is reasonably
necessary.
- Overall,
we consider that the limits imposed by the Bill on the freedom of expression are
justified under s 5 of the Bill of Rights
Act.
Section 19 – Freedom from discrimination
- Section
19(1) of the Bill of Rights Act affirms that everyone has the right to freedom
from discrimination on the grounds set out
in the Human Rights Act 1993 (the
Human Rights Act).
6 Although, under cl 107 the information
does not need to be made publicly available if the Commissioner has reasonable
grounds to believe
the information should not be made publicly available.
- The
key questions in assessing whether there is a limit on the right to freedom from
discrimination are:7
- does
the legislation draw a distinction on one of the prohibited grounds of
discrimination under s 21 of the Human Rights Act; and,
if so
- does
the distinction involve disadvantage to one or more classes of
individuals?
- A
distinction will arise if the legislation treats two comparable groups of people
differently on one or more of the prohibited grounds
of discrimination. Whether
disadvantage arises is a factual
determination.8
Appointment of a
Māori plant variety committee
- Subpart
2 of Part 5 of the Bill provides for the establishment of a Māori plant
varieties committee (the Committee). The Committee’s
primary function is
to assess the impact of a grant of PVR on kaitiaki relationships and make a
determination on whether or not the
PVR application should proceed as a result
of that assessment.9
- We
note that there is no obligation to appoint a committee to assess impact on
non-Māori traditions, nor is the Committee instructed
to advise on how a
PVR regime may affect non- Māori traditions, which could be of equal
importance to non-Māori groups.
At first glance, it could appear that the
creation of the Committee could constitute discrimination on the basis of race
or ethnic
origins. However, for the reasons that follow, we do not consider that
this is the case.
- First,
the establishment of the Committee does not result in a disadvantage to any
class of people. The role of the Committee is not
to provide a specific
advantage to Māori, but to ensure that the regime provides protection for
kaitiaki relationships with
taonga species of plants, thereby upholding the
Crown’s obligations under the Treaty of Waitangi. There is a general
public
interest in ensuring that the Commissioner is appropriately advised of
all relevant considerations in their decision-making.
- Second,
Māori have a broader right to active participation within the
Māori-Crown partnership; a right that arises from
the Treaty of Waitangi.
The Treaty creates a basis for civil government, based on protections and
acknowledgement of Māori rights
and interests within New Zealand’s
shared citizenry.10 The Court of Appeal has also
commented on this right in New Zealand Maori Council v
Attorney-General.11 The Court said that
“[t]he duty of the Crown is not merely passive but extends to active
protection of Māori people in
the use of their lands and waters to the
fullest extent.”12
- Finally,
the Cabinet Manual states that “in some situations, autonomous Māori
institutions have a role within the wider
constitutional and political system.
In other circumstances, the model provided by the Treaty of Waitangi of two
parties negotiating
and agreeing with one
7 See, for example, McAlister v Air New
Zealand [2009] NZSC 78, [2010] 1 NZLR 153; Ministry of Health v Atkinson
[2012] NZCA 184, [2012] 3 NZLR 456; and Child Poverty Action Group Inc v
Attorney-General [2013] NZCA 402, [2013] 3 NZLR 729.
8 See, for example McAlister v Air New Zealand
above n 6 at [40] per Elias CJ, Blanchard and Wilson JJ.
9 Plant Variety Rights Bill, cl 57: the Commissioner
must consider, but is not bound by, the advice given by the Committee.
10 Cabinet Office Circular CO (19) 5.
11 New Zealand Maori Council v Attorney-General
[1987] 1 NZLR 647.
12 At 664.
another is appropriate.”13 Measures designed
to afford Māori their right to partnership are not disadvantageous to any
comparable group. We consider that
appointing the Committee is an appropriate
recognition of the Māori-Crown relationship.
- For
these reasons we consider that the Bill does not engage the right to freedom
from discrimination under s 19 of the Bill of Rights
Act.
Membership of Māori plant varieties committee
- Clause
55 of the Bill provides for the appointment and membership of the Committee.
Relevantly, cl 55(3) provides that a person must
not be appointed as a member of
the committee unless, in the opinion of the Commissioner, the person is
qualified for appointment.
In determining this, the Commissioner must have
regard to the person’s knowledge of mātauranga Māori (Māori
traditional knowledge), tikanga Māori (Māori protocol and culture), te
ao Māori (the Māori world view), and taonga
species.
- This
provision could be seen as giving rise to indirect discrimination on the basis
of race or ethnic origins, because Māori
are more likely than
non-Māori to have knowledge of mātauranga Māori, tikanga
Māori, te ao Māori, and taonga
species. This could arguably
disadvantage non-Maori in their ability to be appointed as a member of the
Committee.
- To
the extent that this could be potential discrimination, we consider it to be
justified because it is important that members of
the Committee are qualified to
provide advice to the Commissioner on the impact a PVR application may have on
kaitiaki relationships
and whether an application should proceed as a result of
that assessment - a key consideration for the Crown when meeting its obligations
under the Treaty of Waitangi. Without this knowledge, a member of the Committee
would have difficulty performing this function. Further,
the requirement does
not prevent non-Māori from being appointed, it simply requires them to have
the relevant knowledge.
Section 21 – Right to be secure against unreasonable search and
seizure
- Section
21 of the Bill of Rights Act provides the right to be secure against
unreasonable search or seizure, including of property.
However, this section has
not been interpreted as a general protection of property rights, in the absence
of reasonable expectations
of privacy.14
- Part
7 of the Bill provides a process where the Commissioner can grant a compulsory
licence for a plant variety to a person without
the consent of the PVR holder.
The compulsory licence has the effect as if it were a licence entered into by
agreement between the
PVR holder and the licensee.15
Because a PVR is personal property,16 this
potentially affects the PVR holder’s property rights.
- However,
there does not appear to be significant privacy interests in relation to rights
to use specific plant varieties for commercial
purposes. We conclude that the
granting of compulsory licences under Part 7 does not engage s 21 of the Bill of
Rights Act.
13 Cabinet Manual 2017, p. 2.
14 See R v Williams [2007] NZCA 52 at [48];
Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A
Commentary (2nd ed, LexisNexis, Wellington, 2015) [18.7.1].
15 Plant Variety Rights Bill, cl 101(4).
16 Clause 19.
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
Deputy Chief Legal Counsel Office of Legal Counsel
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2021/20.html