MEDIA RELEASE – For immediate use, 4 March 2011
Changes needed to make Alcohol Reform Bill more consistent with human rights
Achieving the objectives of the Alcohol Reform Bill in a manner more consistent with human rights and the rule of law is possible by making some amendments to the Bill, the New Zealand Law Society said today.
The Law Society’s concerns include the powers to arrest for an infringement offence and to demand information from individuals in an alcohol ban area. The Bill’s reverse onus provisions – which require people to prove their innocence if charged with a number of alcohol-related offences – are also a concern.
The Law Society submission on the Bill was presented to the Justice and Electoral select committee by the convenor of the Society’s Human Rights and Privacy Committee, Dr Andrew Butler.
Dr Butler said the Bill as currently drafted raised issues about its consistency with the New Zealand Bill of Rights Act 1990. The Law Society did not comment on the policy issues the Alcohol Reform Bill sought to address, and focused on matters which would improve the certainty, effectiveness and workability of the Bill.
Dr Butler noted that the rights and freedoms protected by the New Zealand Bill of Rights Act can be infringed by reasonable limits justified in a free and democratic society. However, he urged the select committee in its report on the Bill to comment on the reasonableness of the Bill’s proposed restrictions on human rights. This would highlight the human rights issues at stake and would improve the quality of the policy analysis.
Dr Butler said the Bill proposed to make the breach of an alcohol ban an infringement offence with the power of arrest. This would make it the first infringement offence to carry a power of arrest. The Law Society believes that setting such a precedent deserves full consideration.
Having an infringement offence that carries a power of arrest means that a person can be arrested for an offence for which they will never receive a term of imprisonment, meaning that the power of arrest is arbitrary.
“The power of arrest should not lightly be used to detain people whose behaviour merely has the potential to escalate,” he said. The Law Society agreed with the Law Commission’s conclusion that there were already ample powers of arrest where behaviour is objectionable.
Giving police officers the power to demand the name and address of people in an alcohol ban area also appeared to be inconsistent with the New Zealand Bill of Rights Act rights to silence, to be free from unreasonable search and seizure, and also of freedom of expression.
“The Law Society believes that a less rights-infringing approach would be to require that a constable also reasonably suspects other people to be involved in the offence before they ask for personal information about another person,” Dr Butler said.
Dr Butler said the Law Society also objected to provisions that did not appear to be compatible with the presumption of innocence protected by the New Zealand Bill of Rights Act. Both provisions required the accused to prove that an element of the alleged offence did not exist. The Law Society recommended that these provisions be removed from the Bill.