About the New Zealand Council for Civil Liberties 

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain  civil liberties. 
2. We wish to make an oral submission to the Committee. 

Summary of Recommendations 

3. The Council believes that this bill is not compatible with a free and democratic society, nor can be amended to become compatible.  We therefore call for it to be withdrawn. 

Introduction

4. The Council supports people’s right to consume drugs for the purpose of pleasure or self-medication, whenever that consumption doesn’t directly interfere with the rights of others.
   
5. The Council acknowledges the harm that smoking tobacco causes and believes that more government regulation is acceptable for tobacco than for most products.
   
6. However, we also believe that people should have the freedom to make their own decisions as much as possible.

Right to Health

7. The Council agrees with the Human Rights Commission that people have a right to health.  This right stems from Human Rights treaties including:
   1. Universal Declaration of Human Rights (UDHR): Article 25(1) (1948)
   2. Convention on the Elimination of all Forms of Racial Discrimination (CERD): Article 5(e)(iv) (1965)
   3. International Covenant on Economic, Social and Cultural Rights (ICESCR): Article 12 (1966)
   4. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW): Articles 11(1)(f), 12 and 14 (2)(b) (1979)
   5. Convention on the Rights of the Child (UNCROC): Article 24 (1989)
   6. Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (Migrant Workers Convention): Articles. 28, 43(e) and 45(c) (1990)
   7. Convention on the Rights of Persons with Disabilities (CRPD): Article 25 (2006)
      
8. Hauora is a taonga, and is therefore guaranteed by the crown under Te Tiriti o Waitangi.  Physical health is one of the four dimensions of hauora. By extension, the government guarantees the health of all New Zealanders under Te Tiriti.
   
9. Aotearoa New Zealand has no law establishing a right to health. The Council urges the Committee to act on the Human Rights Commission and UN Human Rights Council’s calls to acknowledge our right to health in our laws.
   
10. Finally, our right to health is a right to be healthy if we so choose, not an obligation to meet our government’s or anyone else’s standards for health.  Therefore this Bill does not defend anyone’s right to health, and those rights can not be used to justify the infringement of our other rights by this Bill.
    

Discrimination on the basis of age

11. The Bill will prohibit the sale of tobacco to people born after 1st January 2009. Thus at some point there will be adults in New Zealand who can legally buy tobacco and other adults who cannot, based purely on their age.
    
12. The Attorney General’s report under section 7 of the New Zealand Bill of Rights Act 1990 (NZBORA) clearly identifies that this bill discriminates on age in a way which is prohibited by section 21 of the Human Rights Act 1993.
    
13. The section 7 report then continues with the three part NZBORA section 5 test:

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?

Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [123]

• The Council notes that the section 5 test does not ask the all important question: is there any reasonable chance of the objective being achieved? Clauses 21, and 48 through 51 of the section 7 report identify the reasons why this bill will fail:  Tobacco smuggling is already rampant; Existing legislation “has not been effective”; and “the anticipated rise in the illicit market”.  It is the Council’s opinion that there is no chance the objective will be achieved, and that therefore no limitation of our NZBORA rights can be justified.

14. The philosophy of this Bill is to prevent young people from ever smoking so that they do not become addicted. This premise overlooks two groups of people impacted by the Bill, migrants and visitors. If it is to continue, this Bill either needs to accommodate exemptions for these people or to support additional smoking cessation programmes. Otherwise these people will cause the illicit market to swell even further.
    
15. Prohibition has been tried before and doesn’t work. The Council notes that our war on drugs has been a complete failure. It makes no sense to criminalise tobacco when government is moving to a harm reduction approach for other addictive substances.