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WILLS NEW ZEALAND A MF.MBFR '.~F THE RRJTIF|I.AME|( I( ;AH TI ~l,.I.t.t X1 C~. '~.,t~NV L;gt'UP PJ'TIAG 19 September 1995 Mr P F Viner BATMark Limited Export House Cawsey Way Woking Sm'rey GU21 IYB ENGLAND Dear Paul LEGAL RIGHTS TO ADVERTISE LIQUOR E~ N'E~V ZEALAND Please find enoiosed a very interesting legal opinion relating to a draft of what is termed a "Private Member's Bill" which seeks to ban televised liquor advertising in New Zealand. There is only a 50:50 chance that the draft Bill will get even introduced into Parliament and probably less chance that it would proceed past the introduction stage. However, there are a number of interesting aspects to the enclosed opinion which could have relevance to tobacco in a number of cotmtries. It should be noted that the opinion relates to the New Zealand Bill of Rights which is different in a number of ways ~om other nation's Bill ofgi~ts. Nevertheless, it would appear ~om the research done by Chert and Palmer that most western nation's Bill ofKights e,xpress similar sentiments regarding the right to communicate. The author of the Chen and Palmer opinion is Sir Geoffrey Palmer, a former Professor of Constitutional Law who became Prime Minister of'New Zealand for a year (1989- 90) in the Iast Labour Government. He would not describe himself as a Socialist and would in reality fit in the centre Liberal section oft.he political spectrum. After being dropped as Prime Minister by his party just before the 1990 General Election he resigned ~om Parliament at the 1990 election and took up legal practice again. For the last four years he has spent four months ofeach year as a visiting Professor at the United States university law faculty where he studied law. WD ,St HO WILLS (NEw ZEALAND} LLMITED [24-120 RICHMOND STREET PL~fONE PO l~O.g 38-748 PETONE NEW ZEALANO F.~CSIHILE 0-4-568-3766 TELF.PHOHE 0-6-568.35 ~O 2... C3 L.-! G O', PO L3~

Y¢ILL$ NEW ZEALAND 11^f /2 While Prime Minister he saw through to finality his pet legal project - the New Zealand Bill of Rights and in the dying days of the last Labour Government got the Bill passed into law. Curiously, the Bill of Rights Bill was the next item of legislation enacted alder the Smoke-~e~ Environments Act - as a result ofwkick the Bill of Rights Act does not apply to the SFE Act although apparently it does to any subsequent amendments to the $FE Act. The attached opinion does, at the very least, provide a good list of legal references of matters ofgenerat rights to communicate in a democratic society, and which would,. I believe, have relevan~u to a number of countries in which BAT operates. Sir C~o~ey's opinion has been provided to us by good friends of ours and would have been an expensive piece of legal work which we have received at no cost. It would not be appropriate for it to be widely circulated or eked outside a small ~oup fl~ of people within BAT who would benefit ~om its contents. I am sure you and your legal people will find it an "interesting read". Kind regards P ] Tunstall O, lZnC ec: Mr P N Adams O O C', I",o O",

O A TO: FROM; MEMORANDUM Advertising Standards Authority. In¢orl~or~ted : ° Che. &.Palmer March 27. I995 ? Application of Bill of Rights to proposed Bill which would lm~6se total ban on televised liquor adverffsiag CONTENTS Page SUMMARY .................................................... i'." ........ 3 " r BILL OF RIGHTS ANALYSIS ................... " ........................... 5 ; Doe~ tdevlsed liquor advertising fail within' the scope of the freedom of expresdon protected by section 14 of the BIll of RJgh'ts? ....... 6 dppropriate approach to Interpretation of section 14 ............. 6 Wfde scope of the guarantee to freedom of e~ression . .......... 8 AB~I213 I t L.ra. C::) O Do f'o O'~ ,.O

ABB:121j ,) Does section I d protect conmzercfat expression, includin.g liq~tor adverr~rmg7 10 Does section I4 protect liquor advertising on te&vi~fon7 ........ 13" Can liquor advertisers rely on section 14 even if'the7 "happen to be "&gat persons"? ............................ 14 Concl'~ien:r ........................................... ! 5 Would the proposed Bill restrict televised liquor advertishag? .......... 15 Would the proposed Bill be a Justifiable restriction on the fr~dom of expression in terms of segtlon 5 of the Bill of Rights? .... . ............ 16 Would the proposed Bill pm'sue one or more of the pu~oses enumerated in SUbloaragrap~ (a) or (b} of ar~rle 19(3) of the Covenant? ....................................... 21 Would ~he proposed Bill be ct nec~sa~ measure to achieve i~s trurpose? .............................................. 22 Co,,etus~otu ........................................... 26 Ln 0 L-.I 0 a', r~

SU~dMA~Y I. , . 4~ i i i D i Mania Gallagh~ (MP for Hamikoa W~t) and Nick Smith (MP for Tasman) have said that they intend [6introduce a Private Member's Bill banning teIevised liquor advertisements. As reported, the proposed Bill would outlaw liquor advertising on tele'dsion, but not on rad|o or in print. It would not apply to sponsorship messages on t~levlsioa. "I'be Advertising Stand,~ds Authority has asked for a legal opinion on whethe,: such a Bill would comply with the New Zcalm~d Bill of Rights Act 1990 ("Bill of R~ghe~"). Our view is thaz the proposed Bill would dearly violate the freedom of ex~ession under section 14 of the Bill of Rights. And it would not be a justi~able limha~ion on th~ freedom of expresslon in terms ofsecilon 5 of the Bill of'Rights. Section 14 of the B£it of Rights clearly pro~eet~ televised liquor advertising. This is cl~a.r from the wording of s ~e;"don 14, which provides that everyone shall b'e fre~ to "impart information and ide~ of any kind in arty form". This interpreta,"ion finds strong support [n th~ decisions of the UniU-,d Nations H~man Rights Commi~t~, the ~umpe~n Court of Human Ri~ats, and the Supreme Co'ar~ of Canada and the Uniu--d StaLes, The freedom of¢xpms[on is not absolute. Restrictions may be placed upoa it. But any measures restricting the fi-cedom of expression must meet the requirements of section $ of the Bill 0fRights, which provides ~at restrictiva.~ must be "re~onsble" and "demonstrably ju.~,ifisd m a free and democratic society". The section 5 criteria must be appt~ed stringz'ntly. The onus is on those proposing ) (../'I C:) (.,-I c:) O'x r'x3 Ix.) -....4

t o 7. . 9. 10. i ABB'1213 ! 4 m to teethe: rights to d~'nor, st~e convincingly that these ~iteria ~¢e be~ m~t. If it were otherx~s¢, i: would be too easy forlth~ state to run roug~hed o:ver ~ fundamental fights of New Zea;,'md ditizens, iUnder, ;eetion 5, ifP~tiament or any othcp~'t of ttl~ gov:ernmcnr wishes to r=su'ic~ the fundamc,a~ fi~s ofiqew Zealand citizens, it must ~ow that it ~as a ,'~'n'ma~ purpose, and conv~dngf), establish tha~ the m~asuresit plans to introduce ar~ absolut~!y~zece~ary and would be efi'¢ettve in achieving the purpose. It would be a highly" unsatisf'ac~ry situation if N¢,w Zhat~d citizens wer~ forced to surf=r" r"-~tric:~ons on the~ fights, onZy ~o find that those resrricr./ons w~rs ne~,~..J.ess, and ineffec:ive in what they were int~ded to achieve. I It ix cigar ~.a~ tb~- would be a legir.~a~:¢ pur~se behind the propos~ Bill. ~o one c~n deny that exce,~ive consumption ofltquor caus¢~ many social problems in New 7_.~and. But that in itself would not j~tif-y tile Bill in ~rrns of section 5 of~¢ Bill of Rights. Those F.ro~sing the 8ill must also:demonstrate convincingly tha: tl~e Bi~ll would r~oti¢~bly reduce th~ amount of excess!re liquor ~ons-az'nption, ~d that the Biil would be th~ !c~.~ inwasiv~ way of doing so. In our view, ~e proponr.nt~ of the Bill c~.-.not dsmor~-~t~, co~vinciu#y that th'ese req~rem,nts would be m~, i On the ba.~is of the ".vidence available to us, we consider, ~at the conn~.tioa b~=I a ban on televised iiq-aor advertising and liquor consumption patterns'is t~nu<fias and" unproven. Tndsed, the cvidenc~ is inconcl~ive and con~'adicmry'as to v~heth~ liquor adv~rtJ.sing has any impact at all up~r~ liquor consumption pa~ems. It is /nsupportable, and contrary to section :~ oftheBill of Rights, to restri~:t th~ fr~oml of e.x!m'~sion on the basis of incouc,~.ve evicience that the r~'Wi c~ion would ~hi~'~! anything. t F~rth ,e:~,,,ore, it has ~ot been convincingly established tl~t the measures contain~ ! , ; [ : • ~ 1 .. I i ° C2) 0 r,,..) Px..)

- i . r, ! ; m i •) II. 12. - 13. in d~e proposed Bill would be the least intrusive means of reducing the amount of excessive liquor consumption. Man/other options are available which would resmcc the freedom of expression to a lesser, extent Again, il is h~ghly tmsatisfactory to r~Izict the freedom o fe,xpr~ssion to ~e ext~nt proposed whc~ oth~', Zess in.ire but equally effective a[tcma6ves exist. For these reasons, we considc:" that ~e proposed Bill would not meet the rcquir*.ments of section 5 and, accordingly, would breach the Bill of Rights. We are fortified in our view by two earlier le~1 opinions ~'om K~k~on Sw~a and Gilbert Swan Rc..'-vc~, both of which concluded that a tolal ban on televised liquor advertising would breach the Bill of Rights. This rnea~s tb2t the:'~ is now an overwhelming preponderance of legal adv~c~ to the eff'~ that the proposed Bill "o.-ouId br.~ch the Bill of R~ghts. Wc also note the following. It is tru¢3hat, byvirme of section 4, Parliament remains free to le~slate in~nsistently with the Bill of Rights. But. in our view, to do so in this case wcmtd very likely breach b/e~." Zealand's int¢.'..ationat legal obligations under the International Covenant on Civil and Politieal Rights ("Covenant"), and could in,,'ks a c~mmunication by adv~isc.m to the United Nations Human Rights Committe~ alleging a violation of the Covenant by Ne'~'Zealand. t BILl; Ot~ RIGHTS ANALYSIS 14, 1 l . A88:]Z13 ! h~ order to determine whether the proposed Bill would comply with the Bill of Rights, it is necessary to answer ti~r~e questions: (a) Does liquor advertising on television fall within the scope of ~= [~, CD P~ P~

6 f~om of expression prote=:eci by sect.ion i4 ofthe Bill of Pdghrz? (Io) Would the proposed Biil res~.'ct liquor a~ivertisin~ on td]~v~don? • : (c) If me proposed Bill woutd rc'~i¢: I}quor adv~":ising on t~levis~on, could the ~st,~cdon be justified in re:~s of section 5 of the Bill of Rights? I e If liquor ad;,eNsing on television does fill ,~ir.hin the' scope of the freedom or "expression, and the proposed Bill would r~h-ic., such advertising td an extent rha~ could not be jus"dfied in terms of sect/on 5, ~hen the proposed Bill wo~Id conwavene" the Bill of Rights. Does televised l|quor advertising fall within the s~ope of the freedom ~f cxpression. protected by section 14 of the Bill of Righ ~s? 16. We consider that liquor adve~sing on mlev~ien clearly does fall v,2ithin th~ scop~ of the freedom ofexpr~sion protected by s~c~on 14. Appropriate appro~zch to in:¢:pretation of seclion f d 17. 18. ABB:IZ;3 Section 14 provides: Ever, one has the rig'at to fr~dom of cr.~r':.ssion., including the ,fr',.edom ~o seek receive, and ;mpart information and op~o.".s of:~ny kind in any fo .r:=. The meaning of section 14 of~e Bill of Rights has not yei been tested in the Courts.: However. the Co~q of Appeal has indicated ihat the Bill of Pdghlz l~ gener~ must~ be interpreted "b.'-enemusly- and in a manner Which is "~suitable to give t~ individuaIs: j m : • i : i i : i'. L,q P~ "-4

19. q ° i i i I I i , 20. i i 1 J J 1 i 1 i 1 i ........... ! D f I 2 l i I i I i i I I 7 the full rrneasurc of the fundamental ~g.kt5 and fre~or~ referred to'>.' A "rights- ceritxcd" approach is neee~ard.z Furthermore. in incsrpre'..ing the Bill of Fright, i.~ is import~mc to r",fer tol its intemalional ant~.~-.eclents. See:ion 14 in particular is modeled on ar~cle 19(2) of the Covenant, whic'.t provid.~s: -'E;'e.':.mne ,,dxlll hlve ~ fi~ ,'o ~dom of ex~:e~ion: this ri~t shall include lie~orn to ~e:k.. receive and impart irtlbrmation and ideas of all kinds, re~rdle~s of frontiers. eltla-..t oraffy., in ,x~q-ang or in print, in d-,c form of ~ or thr~g,~ my otla.-r me.ritz of his choice. Section 14 of ~c Bill of Righ~ must be i.'-.:zrp~ted eonsir,~ntly with '~rticle 19 of the Covenant. because sec,'.;on 14 is desired to impieme:'..t article 19 in New Zealand's domestic law? This is confirmed by the Long Title of'dae Bill of Rights, paragraph (a) of which provides ~a~ the Bill of Rightz is an Act to "[a]f~rm New Zealand's commitment to the [Covenant]". In inr~,-'~r~fing the Bill of Rights it is partic-tdarly importanl to take into Rccounl the pracrdc~ of ~he "Untied Nations Human Rights Cornmittce ur~der the Covenant. The Committee is the body established to monkor compliance with the Coven.~nt by $~ates ps:'des, including New Zealand. Signifieamly, tl,,~ Court of App:al has s~d: "[w]hether a decision of the Human Rights Commii~se is absolutely binding in inte,-"pre'.irrg the New Zealand Bill of Rights Act may be debRtable, but at least it must be of considerable persuasive authorir/'.' Flicla'nger" v C~vn Coloro/ o.fHong Kong [1.c'9 I] ! NZLR .G9. 4.~0; Naor¢ v Mhlisrry of rran.rpart [ 19921 3 NZLR 260. 26~ R v Good:~.in [1993J 2 NZLR 153. 194. See A Bill ofR[ghts Por Ne~ ZeaL:hal: A ;~Tii:e Pabst, New Z-,.aIand. P:trliarr, cllt. Hou~ Of Reprc.*entative'~. 19g$. AJ"IIR. A 6. p 7g, R v Goodwln (No 2) [1993', 2 N77...K .ag0. 39.~ f':e~¢u,4am). (,w'n : cc) ; t...l ~2J f,,,.) "M tyl

2I. i. J ] 22. I 1 1 ! f I ! I i I i 1 i i 23. J 3 " Article I0(i) of the European Convention on Human Rights ("European Convent'lon") is also art importau~ provision which guarantees the freedom of expression. Th~ relevant part of Article 10(!) pzo~,ide~: Eye-/ore h~ ;he fight to ~'ee, dom of~pressiort. Thit right ~:ll i~c]u~e ¢reedom hold ~Lri/om and t~ receive and Impart irdommfiort and ide.~ wifi'tout intzff~ano~ by pupil-" authod.3" =.-,d regard/e,~ of~miers ..... Mor~ver, sec don 2(b) of :he Canadian Charter of Rights and Fre~oms ("Canadian Charter") provid~: Fvc:7on~ has the f'oilo~,ing fuz~damen~l t'recdoms: ° f'~e~om o~" thought, belief, opin.io.,a and -"xp~Jolx. including .¢'~:~¢Jom of the prc.'Lx und other mealier ot¢cemmun~catio,l; The Court of Appeal has indicated that the jurisprudence of the Euzopean Cour~ of" Human Rights ("European Court") und~ the Europe.:m Convention, ~d of ~c S up~'eme Cour~ of Cana~ under the Canadian Charter, will also be hi#iy p ersuasive in interpr~.'-ti~g the Bill of Righu:.: [ Wfdg ,scope of the ~aargntez tofi'ee.dom ofe:~re.rMon ! !24. 1 I ] I I i I ASB:I213 ! I I. ] The United Nations Human Rights Committee has issued a General Comment on {he meaning of article 19 of the Covenam, in which it emphasizes thd very wid-. scope of the article t.~(2) guarantee to freedom or exFtession.~ The "I~uropean Co~'~, ALcove rt 4, [m.*.-.t'rn; ~bo,,o n 1, ,VoorL 269. GAOR, 3,q'.h S~s.¢. Supp No 40. LrN Doc A/3I~/40 (19~). p ]09, p.m 2. (..~ "xl Ox