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Forests (Regulation of Log Traders and Forestry Advisers) Amendment Bill (Consistent) (Sections 14, 21, 25(c)) [2020] NZBORARp 18 (5 May 2020)
Last Updated: 25 May 2020
5 May 2020
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Forests (Regulation of
Log Traders and Forestry Advisers) Amendment Bill
Purpose
- We
have considered whether the Forests (Regulation of Log Traders and Forestry
Advisers) 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 21865/6.8). We will provide
you with further advice if the final version of the Bill 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
(freedom from 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 amends the Forests Act 1949 and the Forests Amendment Act 2004 to establish
a registration system for log traders and forestry
advisers with the objective
of strengthening the integrity of the forestry supply chain and supporting a
continuous, predictable,
and long-term supply of timber for domestic processing
and export. This system will help the industry to operate in a manner that
increases the transparency and professionalism of log buying, selling, and
trading activities, improves the long-term sustainability
of plantation
forestry, contributes to the development of New Zealand wood processing and
manufacturing, enhances the resilience
of local communities reliant on forestry,
timber and wood processing related employment, and contributes to improved
environmental
and climate change conditions for New Zealand.
- Specifically,
the Bill provides for:
- compulsory
registration of individual forestry advisers providing one or more specified
services related to the management, harvesting,
or sale of forest resources or
forest land;
- compulsory
registration of entities seeking to purchase, process, or export logs grown in
New Zealand;
- the
Ministry of Primary Industries (MPI) to act as the Forestry Authority
responsible for administering the registration system, with
some delegable
powers to a suitable industry body or person outside the Public Service;
and
- regulated
parties to meet certain requirements and codes of practice to become registered
and retain their registration;
- an
arbitration and compliance system to support system accountability; and
- powers,
sanctions, and regulation-making powers to give effect to the regulatory
system.
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. Section 14 has been interpreted as including
the freedom not
to be compelled to say certain things or to be compelled to
provide certain information.1
- Clause
63F of the Bill gives the Forestry Authority power to issue a notice requiring
registered log buyers or forestry advisers to
provide the information or class
of information specified in the notice, where the Forestry Authority considers
that that information
is necessary or desirable to assist the Forestry Authority
in carrying out its functions under the Bill. Clauses 63O, 63R, 63Y and
63ZH
provide for further circumstances where the Forestry Authority may require
information from registered parties, or where parties
are required to provide
the Authority with specific information, in connection with registration
processes and with Forestry Authority
decision making review processes. These
requirements prima facie limit the freedom of expression of registered
log buyers and forestry advisers.
- However,
under s 5 of the Bill of Rights Act, a limit of a right may be justifiable where
the limit serves an important objective,
and where the limits on the right are
rationally connected to achieving that objective, and proportional to its
importance.
- Empowering
the Forestry Authority to collect information relevant to registering and
educating registered parties and to assess compliance
with obligations under the
regime, is rationally connected to the Bill’s objective of improving
standards of practice within
the forestry industry.
- The
information which may be requested by the Forestry Authority is only that
relevant to the efficient operation of the regime. Information
may only be
collected from registered parties who choose to operate as log buyers and
forestry advisers in the knowledge of the industry’s
regulatory
requirements. We consider that the
- See,
for example, Slaight Communications v Davidson 59 DLR
(4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705
(1977).
information that may be collected is proportionate
to the importance of the establishment of the regulatory regime and in keeping
with other similar regulatory regimes.
- For
these reasons we consider that any limits within the Bill on the right to
freedom of expression are justified under s 5 of the
Bill of Rights
Act.
Section 21 – Freedom from unreasonable search and 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,
correspondence or otherwise. The right protects a number of values including
personal privacy, dignity,
and property.2
- Clause
63E of the Bill provides that where MPI has delegated any function of the
Forestry Authority to a person outside of the Public
Service, MPI may conduct
periodic audits of the person’s performance and require information from
that person. An audit may
also involve an inspection of the person’s place
of business. This constitutes a search for the purposes of s 21 of the Bill
of
Rights Act.
- 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. However, the Supreme Court has held that
an unreasonable search
logically cannot be reasonably justified and therefore
the inquiry does not need to be undertaken.3
- Rather,
the assessment to be undertaken is first, whether what occurs is a search or
seizure, and, if so, whether that search or seizure
is reasonable. In assessing
whether the search powers in the Bill are reasonable, we have considered the
place of the search, the
degree of intrusiveness into privacy, and the reasons
why it is necessary.4
- The
purpose of the search in clause 63E is to ensure accountability of private
agents in fulfilling the functions of the Forestry
Authority. The search allows
only for an inspection of a place of business and of specified documents. The
agent must be notified
of the frequency of the audits and given at least 3
months’ advance notice of an audit. A notice to provide information must
be complied with within 10 working days after the date of the notice. We
consider that such a search constitutes only a moderate
intrusion into personal
privacy, which is appropriate for the purposes and in keeping with inspections
that may be undertaken in
a regulatory context.
- On
this basis, we regard searches under the Bill as being reasonable, and thus not
in conflict with s 21 of the Bill of Rights Act.
Section 25(c) - Right to be presumed innocent until proven guilty
- See,
for example, Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [161] per
Blanchard J.
- Above
n1 at [162].
4 At [172].
- 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 beyond reasonable doubt that the
accused is guilty.
- Clause
63ZA of the Bill contains a number of offences which are strict liability
offences. Strict liability offences prima facie limit s 25(c) of the Bill
of Rights Act because the accused is required to prove a defence (on the balance
of probabilities) to avoid
liability (in other criminal proceedings an accused
need merely raise a defence in an effort to create reasonable doubt). This means
that where the accused is unable to prove a defence, they could be convicted
even where reasonable doubt exists as to their guilt.
- The
offences listed at clause 63ZA are for:
- acting
or purporting to act as a registered log buyer or a registered forestry adviser
while unregistered;
- failing
to comply with the obligations for registered log buyers or forestry advisers
set out within the Bill; or
- making
a false or misleading statement in an application for registration, or renewal
of, registration as a log buyer or forestry
adviser under the
regime
- Clause
63ZA(2) provides defences in respect of these offences.
- In
the specific context of strict liability offences, considerations especially
relevant to the reasonableness of limits on s 25(c)
are the nature and context
of the conduct being regulated, the ability of the defendants to exonerate
themselves and the penalty
levels.
- We
consider the limits proposed by the Bill to the right to be presumed innocent
are justified in the circumstances. In particular,
the offences are rationally
connected to protecting and enforcing the new regulatory regime. Strict
liability offences have been
considered more proportionate and justifiable
where, as is the case here:
- the
offence is a regulatory offence and does not result in a criminal
conviction;
- 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;
and
- the
penalties are solely financial in nature, are at the lower end of the scale and
proportionate to the seriousness of the offence.
No terms of imprisonment can be
imposed.
We also note that the offence provisions apply to
persons who have chosen to engage in a regulated industry.
- For
this reason, we consider any limits within the Bill on the right to be presumed
innocent until proven guilty to be 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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