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National Animal Identification and Tracing Amendment Bill (Consistent) (Sections 14, 21, 25(c)) [2019] NZBORARp 29 (18 June 2019)
Last Updated: 27 July 2019
18 June 2019
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: National Animal
Identification and Tracing Amendment Bill
Purpose
- We
have considered whether the National Animal Identification and Tracing 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 21864/1.12). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
note that large portions of the Bill are analogous to existing provisions in the
National Animal Identification and Tracing Act
2012 (‘the principal
Act’) that were considered in our previous advice on the Bill that became
the principal Act.1 Therefore, we have reached many of
the same conclusions as outlined in our previous advice. We have discussed
consequential amendments
and new provisions where warranted.
- 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
21 (security against search
and unreasonable seizure), and s 25(c) (right to be
presumed innocent until proven guilty). Our analysis is set out
below.
The Bill
- This
Bill amends the principal Act, which aims to protect New Zealand against
biosecurity risks, ensure food safety in relation to
animal products, and secure
benefits to New Zealand by enhancing access to overseas markets for New Zealand
animals. The Bill seeks
to address issues with the National Animal
Identification and Tracing (NAIT) scheme that the Mycoplasma bovis
response identified. It makes improvements to the framework governing the
national animal identification and tracing system to provide
for the rapid and
accurate tracing of animals and their movements that enables biosecurity
management and manages risks to human
health.
- Specifically,
the Bill:
- amends
the definition of person in charge of animals (PICA) to mean a “natural
person or body corporate in day-to-day charge
of a NAIT animal”;
- amends
obligations to identify and register NAIT animals;
- creates
the obligation to declare animals that are not NAIT animals; and
1 Available at
www.justice.govt.nz/assets/Documents/Publications/bora-National-Animal-Identification-and-Tracing-Bill.pdf-.pdf
- replaces
Schedule 2 (compliance and enforcement) of 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 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 as including
the right not to
be compelled to say certain things or to provide certain
information.2
Declaration as to non-NAIT
animals
- Clause
13 of the Bill creates an obligation on a PICA to declare animals under their
charge that are not NAIT animals. This obligation
is a form of compelled speech
and prima facie limits the right of freedom of expression.
- A
limit on a right may nevertheless be consistent with the Bill of Rights Act if
the limit is justified under s 5 of the Act. This
s 5 inquiry asks:
- does
the provision service an objective sufficiently important to justify some
limitation on 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?3
- We
are satisfied that the limitation arising from cl 13 is justified under s 5 of
the Bill of Rights Act. The principal Act has the
important objective of
protecting New Zealand from biosecurity risks and improving food safety. The
requirement that PICAs declare
non- NAIT animals under their charge permits
monitoring of other livestock which may be involved in the transmission of
disease,
and is rationally connected to this objective. As such a declaration
must already be made for NAIT animals, and for all livestock
for tax purposes,
we consider that the limit is in due proportion to the objective and impairs the
right no more than reasonably
necessary.
Prohibition against
using name
- Clause
12(4) of Schedule 2 of the Bill makes it an offence for a person to use, during
business or trade, the name, any other trading
name or a logo or design of a
NAIT organisation, if the action is carried out knowingly and without the prior
consent of a NAIT organisation
and in a manner that misleadingly suggests it was
carried out with the approval of a NAIT organisation.
- This
prohibition on the use of NAIT related names, logos and designs prima facie
limits the right to freedom of expression. However, we consider that this is
justified in terms of
2 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416;
Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
3 Hansen v R [2007] NZSC 7 at [123].
s 5 of the Bill of Rights Act. The prohibition on misrepresenting a
relationship with NAIT is necessary to maintain the reputation
of that
association and goes no further than is required to protect the public against
misrepresentation.
Section 21 – Unreasonable search or seizure
- Section
21 of the Bill of Rights Act affirms that everyone has the right to be secure
against unreasonable search or seizure, whether
of the person, property, or
correspondence or otherwise. The right protects a number of values including
personal privacy, dignity,
and property.4
- The
Bill contains the following search and seizure powers:
- to
require the provision of information or production of documents, and to answer
questions (cl 1 of Schedule 2); and
- to
enter and inspect a place without a warrant (cl 10 of Schedule
2).
- Clauses
1 and 10 of Schedule 2 of the Bill are identical to the equivalent provisions
(cls 2 and 49, respectively) within Schedule
2 of the principal Act as it
currently stands. These provisions were assessed in our previous advice on the
Bill that became the
principal Act. Our advice found those powers did they not
constitute unreasonable search powers primarily due to:
- the
appropriate limits and safeguards contained within the Bill (including the
reasons for which such searches may be made, and restrictions
on where they may
take place);
- the
power under cl 1 being subject to privilege against self-incrimination, now
contained within s 138 of the Search and Surveillance
Act
2012;
- the
purpose of the power being to enable NAIT officers to establish whether persons
are complying with their obligations under the
NAIT scheme;
and
- the
livestock sector being a heavily regulated commercial environment, with a lower
expectation of privacy for industry participants
in relation to the type of
information required by NAIT officers and authorised persons.
- We
consider that this assessment continues to be correct and that the above
provisions are not unreasonable for the purposes of s
21 of the Bill of Rights
Act.
Section 25(c) – Presumption of innocence
- Section
25(c) of the Bill of Rights Act provides that everyone charged with an offence
has the right to be presumed innocent until
proved guilty according to law. This
right requires the prosecution to prove, beyond reasonable doubt, that the
accused is guilty.
- We
have identified several strict liability offences in the Bill, as well as a
defence provision that imposes a reverse onus on the
defendant. These provisions
give rise to a prima facie issue of inconsistency with s 25(c) because
the accused is required to prove (on the balance of probabilities) a
defence to avoid liability; whereas, in other criminal proceedings an accused
must merely raise a defence in an effort to create reasonable
4 See, for example, Hamed v R
[2011] NZSC 101, [2012] 2 NZLR 305 at [161] per Blanchard J.
doubt. This means where the accused is unable to prove the defence, he or she
could be convicted even though reasonable doubt exists
as to his or her
guilt.
- Schedule
2 of the Bill contains the following strict liability offences:
- offences
relating to registration, declarations and provision of information (cl
14);
- offences
relating to a declaration required by section 32A (cl
15);
- offences
relating to fitting NAIT devices (cl 16);
- offences
relating to transporting NAIT animals which are not fitted with NAIT devices (cl
17);
- offences
relating to alteration, removal, reuse, and supply of NAIR devices (cl 18);
and
- offences
of failing to comply with directions (cl 19).
- Clause
28 of Schedule 2 of the Bill provides a defence to these offences if the
defendant proves:
- that
the defendant took all reasonable steps to avoid committing the offences;
or
- that
the act or omission constituting the offence;
- took
place in circumstances of an adverse event or an emergency;
and
- was
necessary for the preservation, protection, or maintenance of animal or human
life or for animal welfare purposes.
- In
our previous advice on the Bill that would become the principal Act we
considered similar provisions to cls 14, 16, 18, 19 and
28, and considered that
the limitation on s 25(c) was justified as:
- the
scheme set up under the principal Act has the important objective outlined in
para 5 above;
- the
limitation is rationally linked to this objective as it provides a strong
incentive for compliance with the scheme; and
- the
offence involves straightforward issues of fact, and the relevant context is
often only known to the defendant. In such cases,
it is easier for the defendant
to explain why he or she took (or failed to take) a course of action than it is
for the Crown to prove
the opposite, justifying a strict liability
offence.
- The
new offences contained in cls 15 and 17 relate to failure to perform the new
obligations included in the Bill (at cls 13 and 11
respectively). We are
satisfied that they do not raise any issues that exclude them from the
assessment above.
- We
note that the penalties in the Bill are more severe than the previous
provisions. As noted in our 2010 advice, it is a general
principle that strict
liability offences are associated with penalties at the lower end of the scale.
Here the penalties associated
with the offences have been increased by a factor
of 10, to a maximum fine of $100,000 for individuals and $200,000 for body
corporates.
- However,
the parties governed by these offence provisions are commercial actors and body
corporates engaged in a highly regulated
industry. Individual PICAs and the
directors/managers of offending body corporates will be involved with NAIT
animals for commercial
purposes. The purpose of the principal Act is to protect
New Zealand against biosecurity risks, ensure food safety in relation to
animal
products and secure New Zealand access to international markets. Strong
incentives to comply with the NAIT scheme and its
ability to track animal
movements in New Zealand are logically linked to this goal. We therefore remain
satisfied that the penalties
are proportional to both the commercial nature of
the actors and the objectives of the principal Act.
- We
further note that the increase in the penalties for these offences will make the
principal Act more consistent with similar biosecurity
and food safety focussed
legislation, the Animal Products Act 1999 and the Biosecurity Act 1993.
- Accordingly,
we have concluded that the clauses referred to above are justified under s 5 of
the Bill of Rights Act.
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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