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Regulatory Systems (Primary Industries) Amendment Bill (Consistent) (Sections 9, 14, 21, 25(c), 27(1)) [2023] NZBORARp 18 (24 April 2023)
Last Updated: 4 July 2023
24 April 2023
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Regulatory Systems
(Primary Industries) Amendment Bill
Purpose
- We
have considered whether the Regulatory Systems (Primary Industries) 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 22574/3.3). 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:
- section
9: right not to be subjected to disproportionately severe treatment or
punishment,
- section
14: freedom of expression,
- section
21: freedom from unreasonable search and seizure,
- section
25(c): right to be presumed innocent until proven guilty, and
- section
27(1): right to natural justice.
- Our
analysis is set out below.
The Bill
- The
Bill contains amendments to legislation administered by the Ministry for Primary
Industries, to improve regulatory systems by
ensuring that they are effective
and efficient, and they accord with best regulatory practice.
- The
amendments achieve this purpose through:
- clarifying
and updating statutory provisions to give effect to the purpose of various Acts
and their provisions,
- addressing
regulatory duplication, gaps, errors, and inconsistencies within and between
different pieces of legislation,
- ensuring
the regulatory systems remain up to date and relevant,
and
- reducing
administrative burden for regulators and regulated
parties.
- To
that effect, the Bill amends the following principal Acts and some associated
secondary legislation:
- Agricultural
Compounds and Veterinary Medicines Act 1997,
- Animal
Products Act 1999,
- Animal
Welfare Act 1999,
- Biosecurity
Act 1993,
- Climate
Change Response Act 2002,
- Commodity
Levies Act 1990,
- Dairy
Industry Restructuring Act 2001,
- Fisheries
Act 1996,
- Food
Act 2014,
- Forests
Act 1949,
- Kaikoura
(Te Tai o Marokura) Marine Management Act 2014,
- National
Animal Identification and Tracing Act 2012,
- Primary
Products Marketing Act 1953,
- Walking
Access Act 2008, and
- Wine
Act 2003.
- The
Bill repeals the following Acts:
- Animal
Products (Ancillary and Transitional Provisions) Act 1999,
- Food
Safety Law Reform Act 2018,
- Forests
(West Coast Accord) Act 2000,
- Hop
Industry Restructuring Act 2003, and
- Wool
Industry Restructuring Act 2003.
Consistency of the Bill with the Bill of Rights Act
Section 9 – Right not to be subjected to disproportionately severe
treatment or punishment
- Section
9 of the Bill of Rights Act affirms that everyone has the right not to be
subjected to disproportionately severe treatment
or punishment.
- Clause
68 of the Bill inserts new sections into the Animal Welfare Act 1999 (Animal
Welfare Act). New section 182A provides that any
fee or charge that has become
payable
to the Crown is a statutory debt and is recoverable by the
Director-General in any court of competent jurisdiction. New section 182D
then
provides for an increasing penalty regime that applies following the continued
failure of a person to pay all or part of the
fee or charge:
- 10%
of the debt (or of that part of the debt that remains unpaid after the expiry of
the time provided for the debt’s payment);
and
- For
every complete period of 6 months after that expiry during which the debt or any
part of it (including any deemed increase calculated
under this subsection)
remains unpaid, 10% of the debt or that part.
- The
section does not provide for a maximum amount by which the debt may increase.
The imposition of a penalty that can, theoretically,
increase without limitation
could potentially amount to disproportionately severe treatment or punishment in
some cases.
- Whether
section 9 applies to a financial penalty, rather than interference with bodily
integrity alone, is not entirely clear. Section
9 appears in the subpart of the
Bill of Rights Act entitled “life and security of the person”, and
the other sections
in that subpart all deal with interferences with bodily
integrity.1 While it has not received detailed judicial
consideration, the Court of Appeal in Lyall v Solicitor-General appears
to have proceeded on the assumption that section 9 was applicable to property
for forfeiture.2 On this basis, this section could
arguably apply to financial penalties.
- In
the event that a fine can fall within section 9, we consider that section 182D
does not amount to disproportionately severe treatment
or punishment. The
existence of a mechanism to impose an increasing penalty does not mean that an
additional penalty will always
be imposed. Additionally, new section 182E
provides several grounds under which the penalty may be waived. These include a
genuine
dispute as to the person’s liability to pay the debt or the amount
of the debt, or if there is “some other good reason”
for waiving the
payment.
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 and 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.3
- There
are a vast number of provisions in the Bill which prima facie engage the right
to freedom of expression. For example, there
are several provisions throughout
the Bill where individuals may be required to provide particular or additional
information to the
relevant authorities for proper procedures to be followed and
regulatory functions complied with. The following clauses in the Bill
are of
note as examples of the Ministry for Primary Industries requiring individuals to
comply with statutory requirements:
- Clause
82 amends the Biosecurity Act 1993 (Biosecurity Act) to provide that, where a
person in charge of a craft is unable to arrive
at the port or destination
as
1 See ss 8 – 11 of the
Bill of Rights Act.
2 Lyall v Solicitor-General [1997] NZCA 73; (1997) 15 CRNZ 1
(CA), 6-7 and 9.
- See,
for example, Slaight Communications v Davidson 59 DLR (4th) 416;
Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
notified, the person in
charge of a craft must provide further details to the Director- General
including the approximate location
of the craft and the new port or destination;
and
- Clause
88 amends the Biosecurity Act to provide that persons in biosecurity control
areas must provide an inspector with any documentation
relating to imported
goods.
- Where
a provision is found to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is demonstrably justified in terms of section 5 of that Act. The
section 5 inquiry asks
whether the objective of the provision is sufficiently
important to justify some limitation on the right or freedom; and if so, whether
the limitation is rationally connected and proportionate to that objective and
limits the right or freedom no more than reasonably
necessary to achieve that
objective.4
- We
consider that any limits on the freedom of expression created by these
provisions are justified under section 5 because:
- the
overall objective of ensuring effective and efficient regulatory systems, and in
the case of biosecurity provisions the objective
of excluding, eradicating and
effectively managing pests and unwanted organisms from entering New Zealand, is
sufficiently important
to justify some limit on the right;
- the
requirement to provide certain information in specific circumstances is
rationally connected to this objective – for example,
ensuring that
relevant information is provided is fundamental for the overall function and
efficiency of biosecurity border controls;
and
- the
requirements are no greater than reasonably necessary and proportionate to the
importance of the objective.
- The
Bill also, in many instances, requires the relevant Minister or Chief Executive
to publicly notify decisions, outcomes of disputes,
or exemptions to certain
requirements.5 We note that the requirements for what
type of information needs to be notified or shared is largely factual by nature
and contains
limited expressive value. They also impose limits no more than
reasonably necessary for the regime to operate efficiently. Accordingly,
any
limits to section 14 for these actors are justified under section 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 freedom, privacy,
dignity, and property.6
4 Hansen v R [2007] NZSC 7, [2007]
NZLR 1.
- For
example, clause 71 amends the Animal Welfare Act to provide for the
Director-General to notify the approval of a proposed code
of ethical conduct in
the Gazette and keep online a record of approved
codes.
6 See, for example, Hamed v R
[2011] NZSC 101, [2012] 2 NZLR 305 at [161] per Blanchard J.
- There
are two limbs to the section 21 right. First, the section is applicable only in
respect of activities that constitute a search
or seizure. Secondly, it protects
only against those searches or seizures that are “unreasonable” in
the circumstances.
- The
Bill includes several provisions that we consider clarify or amend existing
powers of search,7 or of search and
seizure.8 Most notably, clause 99 provides for the
removal of the requirement for an inspector to be accompanied by a constable
when executing
search warrants under the Biosecurity Act. We understand that
this change is intended to ease administrative and resourcing burden
for the New
Zealand Police and the Ministry for Primary Industries. The removal of this
safeguard necessitates a consideration of
whether this search power remains
reasonable.
- Ordinarily,
a provision found to limit a particular right or freedom may be consistent with
the Bill of Rights Act if it can be reasonably
justified in terms of section 5
of that Act. However, the Supreme Court has held that an unreasonable search
logically cannot be
demonstrably justified and therefore the inquiry does not
need to be undertaken.9 Rather, section 21 is
self-limiting in that the assessment to be undertaken is whether the search and
power is reasonable. The reasonableness
of a search or seizure can be assessed
with reference to its purpose and the degree of intrusion on the values which
the right seeks
to protect.
- We
consider this power is still reasonable, given the power is necessary to
investigating offences under the Biosecurity Act; and
given the existing
safeguards, such as the ongoing requirement for a warrant, compliance with
conditions specified in the warrant
and training for inspectors on the execution
of a search warrant. These safeguards ensure that searches will be conducted in
a lawful
manner. It is important to note the provision does not preclude the
ability for an inspector to request a constable to accompany
them, where
appropriate.
- We
consider the other clarifications and amendments of existing search, or search
and seizure powers in the Bill to be consistent
with the Bill’s purpose of
ensuring regulatory systems are effective, efficient, and accord with best
regulatory practice.
The powers appear reasonable for the purpose of ensuring
compliance with the provisions of the Bill.
Section 25(c) – Right to be presumed innocent until proven guilty
- Section
25(c) of the Bill of Rights Act affirms the right to be presumed innocent until
proven guilty according to the law. The right
to be presumed innocent requires
that an individual must be proven guilty beyond reasonable doubt and that the
state must bear the
burden of proof.10
- As
strict liability offences, infringement offences prima facie limit section 25(c)
of the Bill of Rights Act. This is because a strict
liability offence may be
proved by 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.
- For
example, clause 88 enables an inspector to request documentation relating to
imported goods from an individual in a biosecurity
control area.
- For
example, clause 101 allows for the seizure and disposal of any container,
package or thing in which unauthorised goods are or
have been
contained.
9 Hamed v R [2011] NZSC
101, [2012] 2 NZLR 305 at [162] per Blanchard J.
10 R v Wholesale Travel Group (1992) 84 DLR
(4th) 161, 188 citing R v Oakes [1986] 1 SCR 103.
- Although
infringement offences do not result in a criminal conviction, the Court of
Appeal in Henderson v Director, Land Transport New Zealand held that the
rights in section 24 and 25 of the Bill of Rights Act apply to minor offences
dealt with under the infringement notice
regime.11
- The
Bill, at clause 63, contains an infringement offence resulting in the
requirement to pay an infringement fine, where an individual
fails to meet the
specified requirements in section 36(1) of the Animal Welfare Act to manually
inspect a trap. The Bill provides
that the infringement fine cannot be more than
$900. A person issued with an infringement offence may either pay the
infringement
fee or elect for the matter to go to court, and the matter will
generally be dealt with in accordance with the Criminal Procedure
Act 2011 for a
category 1 offence.
- Strict
liability offences have been found more likely to be justifiable
where:
- the
offences are regulatory in nature and apply to persons participating in a highly
regulated industry;
- the
defendant will be 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
penalty for the offence is proportionate to the importance of the Bill’s
objective.
- This
infringement offence exists within a highly regulated environment designed to
achieve the important purpose of ensuring owners
and persons in charge of
animals attend properly to the welfare of those animals, and is rationally
connected to that purpose. The
defendant will be best placed to justify their
apparent failure to comply, and a statutory defence is provided for. Fines are
also
set at a level that accounts for a no- fault-based offence. Bearing this in
mind, this offence appears to be a justifiable limit
to the right to be presumed
innocent.
- We
also note that the Bill, for example at clause 198, clarifies penalties for
directors and managers convicted of various strict
liability offences in the
Fisheries Act to ensure that these penalties apply equally to all convicted of
those offences. In effect,
the Bill addresses a drafting issue, as penalties
currently do not apply to those who hold such positions for offences under the
Act. We have considered whether the limit on the presumption of innocence is
still justified in light of these penalties. We consider
the limits are
justified because:
- the
overall objective of the Fisheries Act, which provides for the utilisation of
fisheries resources while ensuring sustainability,
remains sufficiently
important to justify some limit on the right, and the penalties are rationally
connected to this objective;
and
- the
penalties for directors and managers appear proportionate, and no greater than
reasonably necessary, in light of their general
responsibilities for activities
which are regulated by the Fisheries Act.
11 [2005] NZCA 367; [2006] NZAR 629 (CA).
Section 27(1) – Right to natural justice
- Section
27(1) of the Bill of Rights Act affirms that every person has the right to the
observance of the principles of natural justice
by any tribunal or other public
authority which has the power to make a determination in respect of that
person’s rights, obligations,
or interests protected or recognised by
law.
- Clauses
93 and 116, which amend the Biosecurity Act, place a 3-month limitation for a
dispute regarding compensation to be submitted
for arbitration. These provisions
may be considered to engage section 27(1) on the basis that the time limit may,
in some circumstances,
affect a claimant’s right to be heard. However, we
consider these provisions achieve an appropriate balance between the right
to be
heard and the practical considerations such a process must account for (for
example, the timely resolution of disputes). Thus,
to the extent that the
timeframe constitutes a limit on section 27(1), we consider that limit is
justified.
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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