What is the legal status of New Zealand's tobacco legislation vis-a-vis the Human Rights Act of 1993?

Question

The government of New Zealand recently passed a law aimed at eliminating tobacco usage. Rather than prohibiting the purchase of tobacco products altogether, the law instead prohibits their purchase by anyone born after 2008 and would require stores to refuse to sell tobacco products to such people.

To my understanding, the Human Rights Act of 1993 prohibits discrimination based on age unless the person discriminated against is under 16. The New Zealand supreme court apparently recently ruled that things such as a voting age of 18 violate these rules. Currently, anyone born after 2008 is under 16, but the law will presumably apply equally in, say, 2025.

Does the new tobacco legislation run afoul of the Human Rights Act? Or does it avoid any issues or create an exception?

Answer 1

It’s probably fine

I refer you to para 41 of the judgement:

For ease of reference we note that s 5 provides that the protected rights and freedoms “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Restrictions on eligibility to vote are hard to justify in a free and democratic society. Tobacco use is not so central.

Were the issue to come to trial the government could argue:

• it has the power to prescribe substances that are injurious and addictive, which it undoubtably does.
• There are many people born after 2008 who are addicted and cutting off their access would create great personal hardship for them.
• Furthermore, the ongoing demand would create incentive for criminal activity in smuggling illegal tobacco.
• Everyone born in or after 2008 is not addicted to tobacco so banning it would not cause hardship
• Similarly, the waning demand from older people could be met legally reducing the scope for organised crime.

In brief, the ban is probably “demonstrably justified”.

Answer 2

The New Zealand supreme court apparently recently ruled that things such as a voting age of 18 violate these rules.

It is important to bear in mind that this ruling of "violation" (in fact, "inconsistency" they call it) is by no means tantamount to when say the US Supreme Court rules some law unconstitutional.

The NZ Supreme Court does not in any way invalidate laws enacted by the Parliament. It just says "Hey Beehive guys, we think this is inconsistent" and — before sections 7A and 7B were inserted in the Bill of Rights Act 1990 very recently — the Beehive guys did not even have to give a shit in response.

Now they have to give a shit (7B). But what exactly it will be remains up to them. They can just reply "hey judicial folks, we've had a chat and nah, we disagree, bugger off".

That said, if the Parliament has enacted a law that appears to be "running afoul" another law (e.g. the Bill of Rights Act 1990), they both remain valid, and any contradictions/inconsistencies get resolved by the courts case by case — until the Parliament fixes them.

So, when someone born after 2008 will try to get a court ruling that the new tobacco legislation violates their human rights, the court will likely say "Yes it does but that is justified. If you want to change it, ask the Parliament, not us".