Biosecurity Law Reform Bill 15 November 2010 ATTORNEY-GENERAL LEGAL ADVICE CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: BIOSECURITY LAW REFORM BILL 1. We have considered whether the Biosecurity Law Reform Bill (PCO 14587/1.5) ( the Bill ) is consistent with the New Zealand Bill of Rights Act 1990 ( the Bill of Rights Act ). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on Thursday, 18 November 2010. 2. This Bill is an omnibus Bill that amends the Biosecurity Act 1993, the Maritime Transport Act 1994, the Wild Animal Control Act 1977 and the Wildlife Act 1953. It is intended that the Bill will be divided into four separate Bills at the Committee of the Whole House stage. 3. The purpose of this Bill is to provide for: more effective and efficient risk management through interventions targeted at areas of greatest risk and greater use of technology, allowing the Ministry of Agriculture and Forestry ( MAF ) to clear goods and passengers more efficiently at the border and cutting costs by reducing the number of supply chain delays clearer roles and responsibilities and improved collaboration and partnerships through making New Zealand s biosecurity the responsibility of central and local Government, the trade and travel industry, domestic industries with natural resource interests and other stakeholders, and the ability to handle future change and improvements to biosecurity risk management by ensuring that MAF can use electronic systems rather than manual processing at the border which will enable MAF to automate certain biosecurity functions and take advantage of new technologies in the future. The Bill will also allow the responsible Minister to establish a National Policy Direction to manage harmful organisms in the best possible way and ensure that costs of activities are aligned where necessary. The Bill creates specific duties for importers so that they will consider the overall biosecurity risk posed by their goods, rather than just how to meet the requirements for border clearance. The Bill also allows for MAF to enter into an agreement with industry groups that provides for joint decision-making and cost sharing for readiness and incursion response, allowing industry expertise to be brought to the decision-making table. The Bill will also ensure that industry s priorities for expenditure are made clearer. The amendments to the Maritime Transport Act provide for ballast water discharges to be managed and therefore allow New Zealand to ratify the International Convention for the Control and Management of Ships Ballast Water and Sediments.
This Bill amends the Wild Animal Control and Wildlife Acts to remove the requirements for regional councils managing pests to meet additional regulatory burdens that are no longer appropriate. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching that conclusion we have considered potential issues of inconsistency with ss 14 (right to freedom of expression), 21 (right to be secure against unreasonable search and seizure), 22 (liberty of the person) and 25(c) (right to be presumed innocent). Our analysis is set out below. Right to Freedom of Expression Section 14 of the Bill of Rights Act protects the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and any form. Clause 30 of this Bill substitutes new s 35 into the Biosecurity Act, which will require a person in a biosecurity control area to answer all questions asked by an inspector relating to their personal details or a matter the inspector requires for the purpose of exercising a power, function or duty. This may raise freedom of expression issues because the right also extends to the freedom to not say certain things. [1] Similarly, cl 42 inserts new s 105E into the Biosecurity Act, which will require a person subject to an audit to answer an auditor s questions. We consider that the information required by these provisions is not sufficiently expressive to attract the protection afforded by s 14. In reaching this view we note (while acknowledging the minor differences between s 14 and s 2(b) of the Canadian Charter) the decision of the Supreme Court of Canada in Irwin Toy Ltd v Attorney General (Quebec) [2] that expression has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey a meaning. That meaning is its content. Here, the requirement to provide information that is purely factual and only in relation to biosecurity issues rather than matters of opinion, does not appear to be sufficiently expressive in content to attract the protection of s 14. In any event, given the legitimate interest of a State to protect its borders we consider that the limits placed on the right to freedom of expression by this Bill are justified in terms of s 5 of the Bill of Rights Act. Right to be Secure Against Unreasonable Search and Seizure Section 21 of the Bill of Rights Act provides the right to be secure against unreasonable search and seizure. There are two limbs to the s 21 right. First, s 21 is applicable only in respect of those activities that constitute a search or seizure. Second, where certain actions do constitute a search or seizure, s 21 protects only against those searches or seizures that are unreasonable in the circumstances. The Bill contains several amendments to the Biosecurity Act relating to powers to search and inspect goods. These include:
cl 27 provides that an inspector may require a person arriving in New Zealand to surrender uncleared imported risk goods and make a declaration about their personal and travel details and the goods in their possession cl 30 substitutes new s 35 which provides that a person in a biosecurity control area must answer questions of an inspector, allow an inspector to examine goods and provide their passport or evidence of identity cl 42 inserts new s 105E which provides that an auditor may enter any place of business where any document, activity or thing of relevance to the audit is, or is likely to be, held. The auditor may examine the thing, activity or document and take samples or copies, test or analyse it, including removing documents or records to another place for the purpose of copying them. It also requires a person who has knowledge/control to reproduce information in a usable form from a device or system. This section expressly states that it does not override the privilege against self-incrimination cl 42 inserts new s 105F which provides that an auditor may enter a place of business within or outside business hours, but only at a reasonable time, and must either identify him or herself or leave a prominent notice at the place advising of the day and time of entry and stating the auditor s name. The auditor must prepare a schedule specifying anything taken from the place and where it is to be held, and provide a copy of this to the occupier within 7 days cl 46 inserts new s 116A which provides that an inspector may seize and detain goods or documents with reasonable grounds to suspect they are evidence of the commission of 1 or more offences under other enactments. The inspector must deliver the goods or documents as soon as practicable to a constable or appropriately authorised officer, and cl 48 substitutes new s 120 which provides for the power to intercept risk goods. We consider that the search and seizure powers contained in these provisions appear to be for legitimate and appropriate purposes and are therefore reasonable in terms of s 21 of the Bill of Rights Act. In particular, the provisions under new ss 105E and 105F appear to provide for a reasonable manner of execution of the search in terms of requiring it to be done at a reasonable time and requiring that the auditor must provide certain information to an occupier. It should also be noted that reasonable expectations of privacy may not be so high when a person engages in a highly regulated industry, such as the importation of goods or international travel. Effective regulation may legitimately require making available substantial amounts of business-related information. It may be argued that people have lower expectations of privacy when crossing, or bringing items across, borders than they do at other locations. We also note that judicial review is available as a means to question the lawfulness of a particular search and seizure. If the seizure is found to be unreasonable, the Court can order the return of the unlawfully seized goods or documents. For these reasons, we consider that the search and seizure powers in this Bill appear to be reasonable for the purposes of s 21 of the Bill of Rights Act.
Liberty of the Person Section 22 of the Bill of Rights Act provides that everyone has the right not to be arbitrarily arrested or detained. Clause 43 substitutes new s 107 which provides for the power of an inspector to detain a person for the purpose of checking goods. This applies where the inspector suspects on reasonable grounds that a person may be in possession of uncleared or unauthorised goods. The inspector may detain a person for a reasonable period, no longer than 4 consecutive hours, and may use force that is reasonably necessary in doing so. New s 107A provides for the power to detain a person for the purpose of processing entry. New s 107B provides for the power to detain a person for public health or law enforcement purposes where an inspector has reasonable cause to suspect the person is liable to be detained, arrested, or prosecuted, has contravened a specified Act, or is endangering or threatening to endanger the life, health or safety of a person or group of persons. The inspector may detain the person for a period that is reasonable in the circumstances and no longer than 4 consecutive hours. We note that a person will be detained within the meaning of s 22 of the Bill of Rights Act if, amongst other things, there are statutory restraints on a person s movements. However, only those restraints that amount to a substantial intrusion on personal liberty will trigger the concept of detention for Bill of Rights purposes. [3] We consider that, although a person s movement is constrained by the requirement that they remain in a certain place only for the purpose of processing their entry under new s 107A, this does not amount to a detention. The power to require persons to remain at their place of arrival (or departure) ensures compliance with border processing requirements which assists the proper functioning of the border. It cannot be said that this provision imposes a substantial intrusion on personal liberty. We consider that the other powers of detention in new ss 107 and 107B fall within the ambit of s 22 of the Bill of Rights Act, however we do not consider that the provisions could be interpreted as authorising arbitrary detentions. The New Zealand Court of Appeal has stated that a detention is arbitrary when it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures. [4] For this reason arbitrariness should not be equated with against the law, but should be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. Applying these standards to the present case, we consider that new ss 107 and 107B clearly set out the circumstances in which the power may be used, who may affect the detention and how long a person may be held. The ability to detain persons who are arriving in or departing New Zealand who are suspected on reasonable grounds to have uncleared or unauthorised goods, or for public health or law enforcement purposes, is both necessary and reasonable.
We also took account of the fact that the detention powers are for certain purposes and can only be exercised where there is reasonable cause. The period of detention is also restricted to what is reasonably necessary and in any event to not more than 4 consecutive hours. We consider these to be reasonable safeguards against arbitrary detention. As such, we do not consider that the powers of detention in this Bill are arbitrary in terms of s 22 of the Bill of Rights Act. The Right to be Presumed Innocent Section 25(c) of the Bill of Rights Act provides for the right to be presumed innocent until proved guilty according to law. In R v Wholesale Travel Group [5] the Supreme Court of Canada held that the right to be presumed innocent requires than an individual must be proven guilty beyond reasonable doubt and that the state must bear the burden of proof. The Bill contains several strict liability offences and statutory defences that place an onus on the defendant. [6] In strict liability offences, once the Crown has proved the actus reus, the defendant can escape liability by proving, on the balance of probabilities, either the common law defence of total absence of fault or a similar statutory defence, such as without reasonable excuse. Statutory defences reverse the onus and place the burden of proof on the defendant (i.e. he or she must prove, on the balance of probabilities, the defence). Because the burden is reversed, a defendant who is able to raise doubt as to his or her fault but is not able to prove this to the standard of the balance of probabilities, absence of fault, or reasonable excuse would be convicted. This is contrary to the presumption of innocence captured by s 25(c) of the Bill of Rights Act because the defendant may be convicted even though reasonable doubt exists as to his or her guilt. The provisions that create strict liability offences or statutory defences are set out at new ss 154G, 154K, 154M, and 154N as inserted into the Biosecurity Act by cl 63 of the Bill. A person can avoid liability for paying a fine under the cl 63 offences (up to $500,000 for an individual, or if a body corporate the greater of $10,000,000 or an amount calculated on their turnover or value of commercial gain from the infringing act) where they can show that the failure was necessary for the purpose of saving or protecting life or health, preventing serious damage to property, or avoiding an actual or likely adverse effect on a natural and physical resource or human health. To avoid liability under the new sections, the defendant s conduct also has to have been reasonable in the circumstances and the defendant must have taken all reasonable steps to mitigate or remedy the effects of the failure. A further defence is available where the failure was due to an unforeseen event beyond the defendant s control and they could not have reasonably taken steps to prevent the event but took reasonable steps to mitigate or remedy the effects of the failure; or where the defendant did not know and could not reasonably have known of the failure.
New s 154M is both a strict liability offence and contains a reverse onus defence. New s 154M creates the offence of failing to answer, or giving an incorrect answer to a question put under s 105D(3) (where the Director-General has given the person a notice to appear before an auditor to answer questions). New s 154M contains a defence where the person proves that he or she did not have the information required to answer the question, or where the act that is the subject of the prosecution was due to the act/omission of another person, or was an accident, or some other cause outside the defendant s control, and the defendant took all reasonable precautions to avoid the commission of the offence. New s 154N creates strict liability offences for failing to comply with certain provisions of the Bill. It is a defence to a s 154N offence if the defendant proves that the offence was due to an act or omission of another person, an accident, or other cause outside their control, and that they took all reasonable precautions to avoid the commission of the offence. The reverse onus provision in new s 154K provides that a person is liable in damages if the person causes loss or damage through failing to comply with certain provisions of this Bill. New s 154G provides that the Director-General may apply to the High Court for an order that a person pays a pecuniary penalty where that person has failed to comply with certain provisions of this Bill. We consider that these offence provisions prima facie limit the right to be presumed innocent. Is this a justified limit under s 5 of the Bill of Rights Act? Where a provision is found to be prima facie inconsistent with 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 justifiable in terms of section 5 of that Act. Following the guidance of the New Zealand Supreme Court decision of Hansen v R, the s 5 inquiry may be summarised as: [7] (a) does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom? (b) If so, then: i. is the limit rationally connected with the objective? ii. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective? iii. is the limit in due proportion to the importance of the objective? In addition to the factors listed above, we consider the following factors are relevant in assessing whether the strict liability offences can be justified under s 5 of the Bill of Rights Act: (a) the nature and context of the conduct to be regulated
(b) the ability of the defendant to exonerate themselves and the risk of conviction of an innocent person; and (c) the penalty level. The objective of the previously identified strict liability or reverse onus provisions is to provide penalties for failure to comply with New Zealand s biosecurity regime. The Ministry of Agriculture and Forestry advises that biosecurity is critical to New Zealand s prosperity and way of life as, more than any other developed country, New Zealand depends on the success of its primary industries and the biosecurity system that underpins them. Providing penalties to incentivise compliance with New Zealand s biosecurity system appears to be a sufficiently important purpose. The limit on the right to be presumed innocent can be said to be rationally connected to the integrity of New Zealand s biosecurity system in terms of the creation of strict liability offences, as reversing the onus may be an appropriate way to deter offending and/or hold people accountable for their failure to comply. The offences relate to certain activities that require the participant to display a level of care where failure to display that care may lead to harm to the public. Reversing the onus can be justified where the penalty faced is at the lower end of the scale and where the information that goes to the defence is peculiarly within the knowledge of the defendant. [8] We consider that the offences in the Bill relate to public welfare regulatory matters which result only in fines, and that any reason for a failure to meet the required standard of care or behaviour is likely to be peculiarly within the knowledge of the defendant. As such, we consider that the offences are rationally connected to the Bill s objective. We consider that the creation of these reverse onus offences minimally impair the right to be presumed innocent as the penalties are towards the lower end of the spectrum in that they result only in fines, albeit the maximum level of fine available is relatively high. The maximum penalty of $500,000 in s 154H is consistent with similar provisions regarding pecuniary penalties in the Hazardous Substances and New Organisms Act 1996. We understand that one of the key factors behind taking a pecuniary penalty proceeding instead of criminal proceedings is where the defendant has made significant financial gains from their offending or where there are economic incentives to offend. Further, there are statutory defences provided in the Bill and it appears that it would be possible and practical for a defendant to make out a defence as provided. The availability of practical defences limits the impairment of the right to be presumed innocent. We consider that as these strict liability offences are of a public welfare regulatory nature and relate to matters that are peculiarly within the knowledge of the defendant, reversing the onus is justified. Given the stated importance of New Zealand s biosecurity system and that the limit on the right to be presumed innocent is considered to be only minimally impairing, we consider that these provisions are in due proportion to the importance of the objective they are intended to serve.
Conclusion We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel. Jeff Orr Chief Legal Counsel Office of Legal Counsel Footnotes: 1. RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th) 2. [1989] 1 SCR 927 3. Police v Smith & Herewini [1994] 2 NZLR 306, 316 (CA) (Richardson J) 4. Neilsen v Attorney-General [2001] 3 NZLR 433 (CA) para 34 5. 84 DLR (4th) 161, 188 citing R v Oakes [1986] 1 SCR 103 6. See s 67(8) of the Summary Proceedings Act 1956 7. The proportionality test under s 5 of the Bill of Rights Act, as applied in Hansen v R [2007] NZSC 7 [123], draws on the test articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713 and R v Chaulk [1990] 3 SCR 1303. See for example, Hansen, at [42] per Elias CJ; [64] and [79] per Blanchard J; [103], [104] and [120]-[138] per Tipping J; [185] and [217] per McGrath J; and [272] per Anderson J. 8. See, for example, Sheldrake v Director of Public Prosecutions [2005] 1 AC 264, and R v Wholesale Travel Group In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Biosecurity Law Reform Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.