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Organic Products Bill (Consistent) (Sections 14, 21, 25(c)) [2019] NZBORARp 68 (28 November 2019)
Last Updated: 20 August 2022
28 November 2019
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Organic Products
Bill
Purpose
- We
have considered whether the Organic Products 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 21118/24.0). 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
21 (unreasonable search and
seizure), and s 25(c) (right to be presumed innocent
until proven guilty). Our analysis is set out below.
The Bill
- The
Bill proposes a regime to regulate organic claims and the businesses who make
them. The Bill’s objectives are to:
- increase
consumer confidence in purchasing organic products;
- increase
certainty for businesses making organic claims; and
- facilitate
international trade in organic products.
- The
Bill will increase consumer confidence by creating consistency amongst organic
claims and decrease consumer confusion by enabling
mandatory requirements to be
set for:
- any
product sold, labelled or represented as organic whether it is imported,
produced and sold domestically, or exported; and
- each
step along the supply chain, including production, preparation and processing
plus all aspects of handling.
- The
Bill will create certainty for businesses wanting to make organic claims by
enabling requirements for organic production to be
made in regulations. The Bill
also enables administrative regulations to be set as to how to demonstrate
compliance. The Bill enables
recognised entities to check organic businesses
before approval and on an ongoing basis for compliance.
- The
Bill will further facilitate New Zealand to negotiate new and more secure access
to organic markets by increasing government oversight
of the sector regarding
what is
produced in New Zealand and exported. Part 3 of the Bill
also contains requirements for exporters.
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 in 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.1 The right to
freedom of expression includes commercial expression (such as advertising or
labelling).2
- The
Bill contains various provisions of a regulatory nature that prima facie
limit the right to freedom of expression, such as to: make and keep records,
publish statements and provide information requested
by the relevant chief
executive, organic products officer or any other prescribed person in certain
situations. They mostly apply
to the operator or recognised entity. These
provisions are necessary to ensure efficient and effective regulation of
businesses who
make organic claims and are clearly justified.
- Clause
8 of the Bill restricts a person from describing a product as an
“organic” product, if there is an organic standard
that relates to
the product, unless the product complies with the standard. A product is
described as organic if its labelling or
advertising uses such words as
“organic”, “organically grown” or any other word that
would suggest to a reasonable
person that the product is
organic.3
- We
consider that restricting the use of the term “organic” is a clearly
justified limitation on the right to freedom of
expression. The restriction on
describing a product as organic is necessary to create consistency amongst
organic claims and does
not go further than required to protect consumers
against misrepresentation.
Section 21 - Unreasonable Search and Seizure
- Section
21 of the Bill of Rights affirms that everyone has the right to be secure
against unreasonable search and seizure, whether
of the person, property,
correspondence or otherwise.
- The
reasonable justification test, set out in s 5 of the Bill of Rights Act, does
not apply to s 21 of the Bill of Rights Act as the
Supreme Court has held that
an unreasonable search cannot logically be demonstrably justified in a free and
democratic society.4
- Whether
a search will be unreasonable turns on a number of factors, including the nature
of the place or object being searched, the
degree of intrusiveness into personal
privacy and the rationale of the search.5 The greater
the degree of intrusiveness, the greater the need for justification and
attendant safeguards.
1 RJR MacDonald v Attorney-General of
Canada (1995) 127 DLR (4th) 1.
2 Irwin Toy Ltd v A-G (Quebec) (1989) 58 DLR
(4th) 577 (SCC).
3 Clause 9.
4 Hamed v R [2011] NZSC 101, [2012] 2 NZLR
305 at [162].
5 Ibid, at [172].
- Clause
62 of the Bill empowers an organic products officer to enter certain places
(except for a dwelling house or marae) without
a search warrant.
- Warrantless
searches have been interpreted as presumably infringing on s 21 of the Bill of
Rights Act and will be unreasonable except
in a narrow range of
circumstances.6 For instance, warrantless search powers
may be reasonable where it is necessary to monitor compliance of an individual
or organisation
with a regulatory regime.7 This is
because individuals and organisations that operate within a regulated industry
can expect to be subject to scrutiny to ensure
compliance with the law.
- We
consider the power under cl 62 is reasonable for the following
reasons:
- the
power enables an organic products officer to establish whether a person or a
product is complying with the provisions of the Bill
or regulations;
- the
Bill limits where such searches may take place; and
- the
power is subject to part 4 of the Search and Surveillance Act 2012 (other than
subparts 2, 3, 6 and 8, and sections 118 and 119).
These subparts place
reasonableness and lawfulness requirements on the search and seizure powers
conferred by cl 62.
- Clause
65 of the Bill empowers an organic products officer and/or constable to enter
and search a place (including a dwelling house
or a marae) under a warrant. We
consider this power to be reasonable for the following reasons:
- the
issuing officer must have reasonable cause to believe that there is, at a place,
anything in relation to which an offence against
the provisions of the Bill has
been or is being committed; or that there is evidence of the commission of an
offence against the
provisions of the Bill;
- the
power is subject to part 4 of the Search and Surveillance Act 2012 (other than
subparts 2, 3, 6, and 8, and sections 118 and 119).
These subparts place
reasonableness and lawfulness requirements on the search and seizure powers
conferred by cl 65; and
- where
a warrant is executed at a marae or building associated with a marae, it must be
exercised in way that takes account of the
kawa of the marae.
- Clause
66 of the Bill empowers the organic products officer to test samples or have
samples tested to assess compliance with the requirements
under this Bill,
whether under a search warrant or under warrantless entry. As both warrantless
entry and search warrant powers are
subject the reasonableness and lawfulness
requirements of the Search and Surveillance Act 2012, we consider that the power
to test
samples is reasonable.
- We
consider that the Bill is consistent with the right to be secure against
unreasonable search and seizure as affirmed in s 21 of
the Bill of Rights
Act.
6 Andrew Butler and Petra Butler The
New Zealand Bill of Rights Act A Commentary (2nd
ed, LexisNexis, Wellington, 2015) at 1018.
7 Ibid, at 1023.
Section 25(c) – Right to be presumed 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 the charge, the right to be
presumed innocent until proven guilty according to law. The right to be presumed
innocent requires
the prosecution to prove an accused person’s guilt
beyond reasonable doubt.
- The
Bill contains several strict liability offences. Strict liability offences
prima facie limits 25(c) of the Bill of Rights Act because the accused is
required to prove a defence or disprove a presumption in order to avoid
liability.
- We
have identified the following strict liability offences in the
Bill:
- selling
non-compliant products as organic products (cl 85);
- selling
a product described as organic without being certified or approved (cl
86);
- failing
to meet export requirements (cl 87); and
- failure
to comply with the duties in the Bill (cl 88).
- We
considered the following factors in assessing whether a departure from s 25(c)
of the Bill can be justified under s 5 of the Bill
of Rights Act:
- the
nature and context of the conduct to be regulated;
- the
ability of the defendant to exonerate themselves; and
- the
penalty level.
- A
reversal of onus of proof is generally considered to be more easily justifiable
for regulatory offences. Those who choose to participate
in regulated industries
should be expected to meet certain expectations of care and accept the enhanced
standard of behaviour required
of them. In this Bill, operators voluntarily come
under the Bill by choosing to advertise or label their product as organic. The
offences are intended to incentivise those who opt into the regime to adopt
appropriate precautions to prevent breaches of organic
standards.
- The
Bill contains defences that allow the defendant to exonerate themselves. Clause
89 of the Bill provides defences for events outside
of the defendant’s
control, the defendant taking reasonable prevention steps, where the defendant
was supplied with non- compliant
products and where the defendant could not
reasonably have known products were non-compliant.
- Strict
liability offences can be more easily justified where the offence turns on a
particular matter that is peculiarly within the
knowledge of the defendant. For
the specified offences in this Bill, the defendant is in the best position to
justify their apparent
failure to comply with the law, rather than requiring the
Crown to prove the opposite.
- Reversing
the onus of proof is less concerning where the penalty is relatively low and
would therefore have a low impact on the defendant.
The strict liability
offences in this Bill impose maximum fines of $20,000 to $50,000 for an
individual, and $100,000 to
$250,000 for a body corporate.
- The
parties governed by these offence provisions are likely to be commercial actors
and body corporates engaged in a regulated industry.
The purpose of the Bill is
to increase consumer confidence in purchasing organic products, increase
certainty for businesses making
organic claims, and facilitate international
trade in organic products. Strong incentives to comply with the organic product
standards
are logically linked to these goals. We therefore are satisfied that
the penalties are proportional to both the commercial nature
of the actors and
the objectives of the Bill.
- Taking
into account the above factors, we consider the strict liability offences set
out in the Bill 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.
Edrick Child
Deputy Chief Legal Counsel Office of Legal Counsel
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