Sale and Supply of Liquor and Liquor Enforcement Bill

Sale and Supply of Liquor and Liquor Enforcement Bill 4 August 2008 Attorney-General LEGAL ADVICE CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: Sale and Supply of Liquor and Liquor Enforcement Bill (PCO8152/12) Our Ref: ATT395/43 1. I have considered the Sale and Supply of Liquor and Liquor Enforcement Bill ("the Bill") for consistency with the New Zealand Bill of Rights Act 1990. I conclude that the Bill appears to be consistent with that Act. 2. In reaching that conclusion, I note that three issues arise in respect of rights affirmed by the Bill of Rights Act but consider that no point of apparent inconsistency arises. In summary: 2.1 Three parts of the Bill give rise to differential treatment on the grounds of age in terms of s 19(1) of the Bill of Rights Act: 2.1.1 Clauses 34, 36-38 and 47 of the Bill make various provision in respect of the supply of alcohol to people under the age of 18. I consider that that differential treatment is consistent with the Bill of Rights Act in light of the greater vulnerability of children and young people to alcohol-related harm. 2.1.2 Clause 39 of the Bill provides that people under 18 may be referred to an alcohol intervention programme instead of paying a fine for an alcohol-related infringement offence. I conclude, however, that the differential treatment of younger and older offenders is consistent with the Bill of Rights Act given the established value, as for example recognised in the Convention on the Rights of the Child, of alternative rehabilitative responses to offending by young people. 2.1.3 Clauses 51-53 and 55-56 of the Bill impose lower or zero breath and blood alcohol limit on drivers under 20 years of age while retaining higher limits for other drivers. I consider that differential treatment to be consistent with the Bill of Rights Act in light of evidence of greater vulnerability to alcohol-related impairment among younger people and higher rates of alcohol-related accidents and, in respect of the zero limit, the stated objective of the Bill of avoiding uncertainty among young, inexperienced drivers as to a safe level of alcohol consumption. 2.2 Clause 35 of the Bill introduces a new regulatory regime for alcohol-related advertising and, particularly, seeks to minimise the exposure of young people to alcohol advertising and to ensure that such advertising does not have strong appeal to young people. In this respect, the Bill imposes a restriction on the right to freedom of expression affirmed by s 14 of the Bill of Rights Act. I conclude that the restriction is justifiable in light of the greater

vulnerability of young people to alcohol-related harm and the policy objective of seeking to support parents and others as the primary source of guidance for young people in respect of alcohol use. 2.3 Clauses 36 and 38 of the Bill contain "reverse onus" offence provisions in respect of sale or commercial supply of alcohol to young people and presence of young people in restricted or supervised areas, under which a defence of belief on reasonable grounds that a young person was over 18 must be proved by the accused. As such, the Bill is inconsistent with the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act. I conclude, however, that that inconsistency is justifiable in the context of an age-restricted commercial activity. 3. The remainder of the Bill comprises substantial amendments to the regulation of licensed premises and narrow amendments in respect of diversion of young offenders and forfeiture of alcohol that has been seized by the Police. I have briefly addressed the last of these issues, but consider that no issue arises in respect of any of these provisions under the Bill of Rights Act. Age-related limits under the Bill Restrictions on access to alcohol and alcohol-related premises by people under 18 4. Clauses 34, 36-38 and 47 of the Bill provide for offences and ancillary measures in relation to the supply of alcohol to people under the age of 18 and permitting such people to enter and remain in licensed premises. 5. As such, the Bill - in common with existing restrictions on access to and use of alcohol by young people - gives rise to differential treatment on the basis of age in terms of s 19(1) of the Bill of Rights Act and s 21(1)(i) of the Human Rights Act 1993, which defines age as any age commencing with the age of 16 years. 6. Age-based distinctions necessarily involve a degree of generalisation without regard for the particular abilities, maturity or other qualities of individuals within the distinguished age group. In broad terms, age restrictions on access to alcohol reflect: 6.1 Greater vulnerability, both for physiological and social reasons, to alcohol-related harm; [1] and 6.2 The effectiveness of parents and guardians as the primary means of education of young people in relation to alcohol. [2] 7. As such, and noting the scope under the Bill for young people to have access to alcohol under parental supervision, [3] it may be suggested that the differential treatment consequent on the restricted access of young people to alcohol does not result in disadvantage and so raises no issue under s 19(1). 8. The better approach, however, is to consider whether, assuming that the restrictions give rise to disadvantage, that disadvantage is discriminatory. It is accepted that a distinction

based on a proscribed ground that is rationally connected and proportionate to a sufficiently important objective does not amount to discrimination. [4] 9. Protection against alcohol-related harm is an important objective. Further, the use of the age of 18 reflects both empirical indications of vulnerability and, given the premise of parental responsibility, the existence of parental or guardianship responsibilities to that age under the Care of Children Act 2004. Accordingly, the use of age as a criterion is rationally connected to that objective. 10. Moreover, given the substantial empirical support for the appropriateness of the age of 18 as an age limit, the impracticability of individual assessment of young people for vulnerability and the scope for access to alcohol under parental supervision, it is also, in my view, proportionate. Accordingly, no point of inconsistency arises in respect of these provisions. Referral to early alcohol intervention programme for young people 11. Clause 39 of the Bill inserts a new s 164A to the Sale of Liquor Act 1989 which allows a member of the police to refer a young person served with an alcohol-related infringement notice to an alcohol early intervention programme. On completion of the programme, the infringement notice process is ceased. 12. I note that this provision only relates to specific youth alcohol-related offences (young person/minor purchasing alcohol, being in a restricted area or possessing alcohol for consumption in a public place), but also that the differential treatment of younger and older offenders in this respect is consistent with the Bill of Rights Act. Assuming there is some disadvantage to older offenders, the ability to refer young offenders to an early intervention programme is rationally connected and proportionate to the important objective of lessening alcohol-related harm, specifically in relation to young people. [5] It is similar to the Police exercise of prosecutorial discretion through the diversion scheme and recognises the established value in alternative responses to youth offending in general. Consequently, no issue of inconsistency arises. Lower and zero breath and blood alcohol limits for drivers under 20 13. Currently, all drivers younger than 20 have a permissible breath alcohol limit of 150 micrograms per litre of breath and a blood alcohol limit of 30 milligrams per 100 millilitres of blood (ss 11 and 57 LTA). These are lower than the limits for older drivers. [6] The effect of cll 51-55 of the Bill is that: 13.1 These limits are reenacted for drivers under 20 who have a full licence; but 13.2 Drivers under 20 who hold a learner, restricted or limited licence, who are unlicensed or disqualified or whose licence has been suspended or revoked are subject to a zero limit. 14. In subjecting people under 20 to the risk of prosecution in circumstances where older drivers are not so subject, both of these provisions give rise to differential and disadvantageous treatment by reason of age and so raise issues under s 19(1) of the Bill of

Rights Act. It is therefore necessary to consider whether that differential treatment is rationally connected and proportionate to a sufficiently important objective. [7] 15. The objective of these restrictions is to reduce the harm associated with the consumption of alcohol by minors. The purpose of the amendments to the LTA specifically is to reduce the number, and risk, of motor vehicle accidents involving young drivers and alcohol. The further question is whether the restrictions are rationally connected and proportionate to that objective. Lower alcohol limit for full licence-holders under 20 16. The lower limit of breath and blood alcohol content for drivers younger than 20 with a full licence in comparison to those older than 20 reflects two rationales: 16.1 It is empirically established that younger people are physically and mentally more impaired by alcohol than older people and more likely to engage in harmful use of alcohol; [8] and 16.2 More specifically, drivers under 20 have been shown to more at risk of driving accidents due to even relatively limited alcohol consumption than those over 20. [9] 17. Again, and also noting that it is not practicable to engage in individualised assessments of the risk of alcohol-induced accidents, the lower limit can be seen to be directly and, inherently, proportionately connected to the objective. Accordingly, no inconsistency arises. Zero alcohol limit for drivers other than full licence-holders under 20 18. The zero alcohol level for restricted or learner or unlicensed drivers younger than 20 raises a separate issue, as it is not empirically established that a minimal level of breath or blood alcohol has an impairment effect. 19. The rationale for the zero limit in respect of such drivers is stated by the Bill to be "to make it clear to young, inexperienced drivers, that alcohol and driving do not mix" and, in applying a zero, rather than low, limit to ensure that "there can be no doubt" on this point. [10] 20. As noted above, there is empirical evidence that drivers under 20 are more at risk due to even limited alcohol consumption and, further, that such drivers are more likely to engage in harmful use of alcohol. It is also self-evident that people under 20 necessarily have had less opportunity to acquire experience in responsible alcohol use. The adverse effect of the zero limit is, in addition, constrained both by the capacity of those subject to it to acquire full licences and the passage of time. [11] 21. For those reasons, and given that the policy objective of ensuring that drivers without a full licence do not regard any level of alcohol consumption as acceptable cannot be otherwise achieved, I consider that the use of a zero limit is a rationally connected and proportionate means of attaining the stated objective. It follows that no inconsistency arises.

Legislative framework for liquor advertising - freedom of expression issue What the Bill does 22. Clause 35 of the Bill introduces a new framework for the regulation of liquor advertising by inserting a new Part 6A of the Sale of Liquor Act 1989. The current voluntary selfregulatory system of the Advertising Standards Authority will be replaced with an enforced self-regulatory system. 23. The new s 136A sets out the principles that apply to the new Part 6A: 23.1 Liquor advertising and liquor promotion should not be inconsistent with the promotion of responsibility and moderation in the consumption of alcohol; and 23.2 The overall exposure of children and people under the age of 18 years to liquor advertising and liquor promotion should be minimised; and 23.3 Liquor advertising and liquor promotion should not hold strong appeal to children or young people. 24. The new s 136C allows the Director-General of Health to issue a cease and desist order if he/she is satisfied that a liquor advertisement is contrary to the principles listed above, or has or is likely to have an effect contrary to those principles. The Director-General may order the person who published the advertisement (or on whose behalf it was published) to take all reasonably practicable steps to withdraw the advertisement and not to publish, or have published, any similar liquor advertisement in the future. A cease and desist order of similar terms can be issued in regard to a liquor promotion also. 25. The Director-General can only act on the written advice of the liquor advertising advisory body (the "LAAB", established by the new s 136B). The LAAB's advice can originate from a complaint of breach of a code, following an investigation referred to it by the Director-General or on its own volition. 26. The Bill also creates an offence of failure to comply with a cease and desist order and sets a financial penalty (the new s 136G). Restriction on freedom of expression (s 14 Bill of Rights Act) 27. 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." The right extends to all forms of communication including advertising. [12] 28. The Bill sets out principles to which liquor advertisements and promotions will be required to conform. These standards will be enforced through the operation of the LAAB and ultimately the Director-General of Health's power to issue a cease and desist order. 29. The operation of the LAAB and the Director-General's power must be exercised consistently with the Bill of Rights Act and so raise no issue of consistency with that Act. Any

decision by the Director-General that amounts to an unjustifiable restriction on the s 14 right would be unlawful as inconsistent with the Bill of Rights. 30. However, and independently of that exercise of discretion, the Bill requires the prohibition of advertising that holds strong appeal for children or young people. That prohibition limits the right to freedom of expression. As such, it must be justified in terms of s 5 of the Bill of Rights Act. Justified limitation 31. The objective of the restrictions on advertising is to reduce the harm associated with the consumption of alcohol by minors. This is an important objective given, as I have noted above, research shows that alcohol consumption by minors (ie those under 18 years) is associated with a variety of harms. [13] 32. An expert multi-disciplinary steering group appointed by the Minister of Justice in 2007 concluded that alcohol advertising plays a role in shaping the culture of drinking in New Zealand. [14] It also found that the research evidence suggested a small but significant association between the level of exposure to alcohol advertising and alcohol consumption. The link between advertising and consumption makes it reasonable to restrict advertising to limit exposure of a certain group of the population in order to reduce consumption by that group and so reduce the harm that is associated with consumption by that specific group. 33. The Supreme Court of Canada has upheld restrictions on tobacco advertising that is appealing to young people as a justified infringement on the right to freedom of expression, on similar grounds to those noted above. [15] That Court has also upheld a prohibition in Quebec law on commercial advertising directed at children younger than 13 years. [16] 34. The restriction on liquor advertising aimed at young people is rationally connected with and proportionate to this objective given the link between liquor advertising and alcohol consumption by young people. Consequently, no issue of inconsistency arises. Onus on defendant to charge of selling liquor to a young person or permitting minor to be in restricted or supervised areas - minimum standards of criminal procedure issue 35. Clauses 36 and 38 of the Bill provide a defence to prosecution for commercial provision of alcohol to young people and entry by young people to licensed premises if the defendant proves that a proof of age document was provided and that he or she believed on reasonable grounds that the document related to the young person concerned. This is a more stringent standard than the current Bill, which requires proof only of reasonable grounds, including but not limited to a proof of age document. The term "prove" in cll 36 and 38 requires proof by the defendant on the balance of probabilities. [17] 36. In requiring the defendant to disprove an element of the offence, cll 36 and 38 limit the right to the presumption of innocence affirmed by s 25(c) of the Bill of Rights Act. In considering whether that limitation is justified in terms of s 5, I note that such provisions have been upheld as justified in other jurisdictions as justifiable in the context of nonimprisonment penalties applied to voluntary participants in regulated activities. [18]

37. Here, the reverse onus provisions apply to holders of liquor licences and provide for fines of up to $10,000 and suspension of licences. [19] It follows that the offences and the penalties, although not insignificant, are broadly of a regulatory character. Further, and noting the observations of the Supreme Court in Hansen, above, the steps taken by a licence-holder to establish lawful age and, particularly, whether a proof of age document was provided and was believed are matters peculiarly within his or her competence. 38. It follows that no issue of inconsistency arises in respect of cll 36 and 38. Seizure and forfeiture of liquor - no unreasonable search and seizure issue 39. The Bill also amends the Summary Offences Act in relation to the seizure and forfeiture of liquor. Police may seize and remove any liquor that there is reasonable ground to suppose is intended for consumption in contravention of the new s 37A noted above and s 38 of the Act. Such liquor forfeits to the Crown upon conviction under one of those sections. Liquor and the vessels containing it are also forfeit to the Crown if seized from a young person who is issued with an infringement notice for an offence against s 38(3) and the infringement fee is later paid. 40. Section 21 of the Bill of Rights Act protects against unreasonable search and seizure. The power given to Police in the Bill to seize liquor is discretionary and to be exercised reasonably and does not therefore raise any issue under s 21 of the Bill of Rights Act. In respect of forfeiture itself, I note that s 21 is not a property right and does not prevent forfeiture of items to the Crown and so no separate issue arises. [20] 41. I note that I have been assisted in preparing this advice by Monica Silverwood, Assistant Crown Counsel, and that this advice has been peer reviewed by Fergus Sinclair, Crown Counsel. Ben Keith Crown Counsel Footnotes 1. See, for example, P Cagney & S Palmer The Sale and Supply of Alcohol to Under-18 Year Olds in New Zealand: A Systematic Overview of International and New Zealand Literature: Final Report (Research New Zealand, 2007) 78-105. 2. Explanatory note, p. 2. 3. See, for example, cl 47. 4. United Nations Human Rights Committee General Comment 18: Non-discrimination, para. 13; cited in Quilter v Attorney-General [1998] 1 NZLR 523 (CA), 562 and Hemmes v Young [2005] 2 NZLR 755 (CA), 775-776; and see, further, the very recent discussion of uncertainty as to the respective roles of ss 5 and 19(1) of the Bill of Rights Act in Air New Zealand Ltd v McAlister [2008] NZCA 264, [41]-[44]. 5. See note 4 above.

6. See cl 51 (400 micrograms of alcohol per litre of breath). 7. Above n 4 8. See, for example, Cagney & Palmer above n 1, 79-83. 9. See, for example, Ministry of Transport, Alcohol/Drugs Crash Statistics for the year ended 31 Dec 2006, which indicate that the risk of being involved in a crash increases as a driver's blood alcohol level increases, and the rate of the increase in risk is faster, with lower levels of alcohol, for people aged 15 to 19 than for people 20 and older. 10. Explanatory note, 2. 11. I also note that the prosecutorial discretion in terms of drink driving offences will continue to apply as will Police practice that takes account of a margin of error in readings: see, similarly, Duggan-Rowlands v CAA Insurance Company, SR 2894/05, Ontario Superior Court of Justice, 21 March 2007. 12. RJR-MacDonald Ltd v Canada [1995] 3 SCR 199 (SCC) 13. See above, n 1. 14. Regulatory impact statement: proposed changes to regulation of alcohol advertising, p. 27 15. Canada (Attorney-General) v JTI-Macdonald Corp (2007 SCC 30). 16. Attorney-General of Quebec v Irwin Toy Ltd [1989] 1 SCR 927 (SCC). 17. R v Hansen [2007] 3 NZLR 1 (SC). See, by contrast, the word "shows" in cl 47, which does not establish such a meaning. 18. See, for example, R v Wholesale Travel Group [1991] 3 SCR 154 (Supreme Court of Canada) and AG v Malta (ECtHR, App 1664/90). The point was noted, with possible approval but without deciding, in Hansen, above, at 22, para 43 (Elias CJ) "such onus may perhaps be justified where an accused is well placed to prove a licence or formal qualification, especially if significant criminality is not in issue"; 29, para 66 (per Blanchard J) onus in respect of drunk driving offences in Sheldrake v Director of Public Prosecutions [2005] 1 AC 264 (HL) appropriate given the issue "so closely conditioned by the driver's own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities"; 75, para 227 (per McGrath J) noting "valid administrative reasons for putting the burden of proof of such facts on an accused. One instance arising in traffic offences is whether an accused held a driver's licence at the relevant time. It is obviously far easier for the accused to prove he held a driver's licence than for the authorities to prove he did not." 19. See s 155(2A). 20. R v Williams [2007] 3 NZLR 207 (CA), Mihos v Attorney-General [2008] NZAR 177. 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 Sale and Supply of Liquor and Liquor Enforcement 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.