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Biosecurity (Information for Incoming Passengers) Amendment Bill (Consistent) (Sections 14, 25(c)) [2021] NZBORARp 33 (5 May 2021)
Last Updated: 15 June 2021
5 May 2021
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Biosecurity
(Information for Incoming Passengers) Amendment Bill
Purpose
- We
have considered whether the Biosecurity (Information for Incoming Passengers)
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 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)
and s 25(c) (right to be considered
innocent until proven guilty). Our analysis
is set out below.
The Bill
- The
Bill amends the Biosecurity Act 1993 (the principal Act) to require that the
person in charge of a craft coming into New Zealand
is required to provide
biosecurity information to the persons on board by means of an audiovisual
recording and writing.
- The
purpose of the Bill is to ensure that people entering New Zealand are aware of
our biosecurity protections.
- Clause
4 inserts proposed new s 17AA into the principal Act which requires the person
in charge of an incoming craft to:
- give
each person on board the craft a copy of approved written information about New
Zealand’s biosecurity requirements; and
- play
a copy of approved audiovisual information about New Zealand’s biosecurity
requirements in a prominent location that is
able to be seen and heard by each
person on board the craft.
- Clause
6 of the Bill amends s 154N of the principal Act to provide that failing to
comply with proposed new s 17AA is a strict liability
offence under the
principal Act.
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. This
includes the freedom to seek, receive, and impart
information and opinions of
any kind
and in any form. This right has been interpreted as
including the right not to be compelled to say certain things or provide certain
information.1
- The
requirement in cl 4 for the person in charge of an incoming craft to distribute
and communicate, and for those on the aircraft
to receive, approved information
creates a prima facie limit on the right to freedom of expression.
- 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. This section 5 inquiry may be approached
as follows: 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?
- The
objective of the Bill is to provide people entering New Zealand with information
regarding New Zealand’s biosecurity requirements.
This supports the
purpose of the principal Act, which is to provide a legal framework for the
Ministry for Primary Industries and
others to help keep harmful organisms out of
New Zealand. We consider providing information to create an understanding of New
Zealand’s
biosecurity requirements in order to help keep harmful organisms
from entering New Zealand and causing damage is a sufficiently important
objective. Requiring the person in charge to provide biosecurity information to
people on the craft in written and audiovisual form
is rationally connected to
the objective of the Bill
- We
consider that the limit on the right is no more than is reasonably necessary and
proportionate to the achievement of the objective
of the Bill. The Bill only
applies to craft coming from outside of New Zealand that will arrive in New
Zealand. The biosecurity information
provided to people on craft is important to
the protection of New Zealand’s environment and economy. It is therefore
proportionate
for people in charge of craft to be required to communicate this
information in approved forms to people on-board.
- For
these reasons, we conclude that any limits on the right to freedom of expression
imposed by the Bill are justified under s 5 of
the Bill of Rights
Act.
Section 25(c) – Right to be considered innocent until proven guilty
- Section
25(c) of the Bill of Rights Act affirms that everyone who is charged with an
offence has, in relation to the determination
of that charge, the right to be
presumed innocent until proven guilty according to law. The right to be presumed
innocent requires
that an
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416;
Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
individual must be proven guilty beyond reasonable doubt, and that the State
must bear the burden of proof.2
- The
Bill creates a new strict liability offence. Clause 6 of the Bill amends s 154N
of the principal Act to provide that failing to
comply with proposed new s 17AA
is a strict liability offence and the prosecution is not required to prove that
the defendant intended
to commit the offence.
- 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
prima facie inconsistency with s 25(c) of the Bill of Rights created by
the new strict liability offence 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 s 5 of the Bill of Rights
Act.
- We
consider that the prima facie limit proposed by cl 6 of the Bill appears
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 offence
in the Bill arises in the context of minimising harm. Providing New Zealand
biosecurity information
to people on incoming crafts may reduce the likelihood
of harmful organisms entering New Zealand. We consider that this is a
sufficiently
important objective and the limit is rationally connected to the
objective.
- We
note that s 154N of the principal Act contains several general defences for the
relevant strict liability offences which would
include the offence created by
the Bill.
- The
penalty set out in s 157 of the principal Act is a fine not exceeding $5,000 for
an individual and not exceeding $15,000 for a
body corporate. This penalty is in
line with penalty ranges for other regulatory regimes and is proportionate to
the importance of
the Bill’s objective which is to provide people entering
New Zealand with information regarding New Zealand’s biosecurity
requirements.
- For
the above reasons, we consider the limit on s 25(c) of the Bill of Rights Act
can be justified under s 5 of the Bill of Rights
Act.
2 Hansen v R [2007] NZSC 7 [30],
also R v Wholesale Travel Group (1992) 84 DLR (4th) 161, 188 citing R
v
Oakes [1986] 1 SCR 103.
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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