The business chosen for the purpose of this assignment is a Pharmaceutical Business. The chosen business falls under Pharmaceutical industry in New Zealand, which is subject to many laws. Companies like Roche Products (New Zealand) Limited and Douglas Pharmaceuticals being the competitors within the industry. However, all companies belonging to this industry have to comply with all the provisions laid down in Misuse of Drugs Act, 1975.
The purpose of this Act is to regulate the classification of controlled drugs in New Zealand and to establish offences and penalties relating to drugs that are illicit. This Act comprises of four schedules which are further subdivided into 13 categories that list the controlled drugs and the precursor substances. The drugs are classified based on the degree of harm caused by them.
Answer (a)
The Act has laid down many offences that can affect an organization operating the pharmaceutical industry largely. One of such offences has been elaborated below.
As per Section 12A (1) of Misuse of Drugs Act, 1975, a person is considered an offender of the provisions of the Act if produces, supplies or manufactures the following:
With the knowledge of the fact, material equipment or substance will be used in or for the purpose of commission of an offence against the said provision.
As per Section 12A (2) of Misuse of Drugs Act, 1975, Every person who has in possession:
With the knowledge of the fact material equipment or substance will be used in or for the purpose of commission of an offence against the said provision.
When an offender convicted on indictment for an offence mentioned in subsection (1) of Sec 12A of the Misuse of Drugs Act, 1975, and then every person would be subject to an imprisonment for a term, which shall not exceed 7 years. However, if subsection 2 of 12A of Misuse of Drugs Act, 1975 has been violated then every person would be subject to imprisonment for a term, which shall not exceed 5 years. Moreover, if the offender is summarily convicted against this section, then the person may be subject to imprisonment which shall not exceed 1 year or a fine which shall not exceed $1000, or both and the sentencing limits as contained in section 7 of the Summary Proceedings Act 1957 would not be applicable.
(ii) The provisions of Section 12A of this Act gets attracted when any organization that is involved in the pharmaceutical industry produces, manufactures or supplies or possesses any material or equipment that can be used in or for the commission of an offence against Section 6(1)(b) or Section 9 of the Act or any precursor substance. When an offender convicted on indictment for an offence mentioned in subsection (1) of Sec 12A of the Misuse of Drugs Act, 1975, and then every person would be subject to an imprisonment for a term, which shall not exceed 7 years. However, if subsection 2 of 12A of Misuse of Drugs Act, 1975 has been violated then every person would be subject to imprisonment for a term, which shall not exceed 5 years. Moreover, if the offender is summarily convicted against this section, then the person may be subject to imprisonment which shall not exceed 1 year or a fine which shall not exceed $1000, or both and the sentencing limits as contained in section 7 of the Summary Proceedings Act 1957 would not be applicable.
(iii) When a person commits an offence as mentioned in 12A of Misuse of Drugs Act 1975, he is liable to be prosecuted by the District Court.
(iv) Any person, against whom any prosecution has been executed under Section 12A of Misuse of Drugs Act, can be punished only if the charges of offence are proved. Hence it needs to be proved by presenting adequate evidences that the entity on which the charges are levied, was actually involved in producing or supplying or manufacturing or was in possession of material or equipment that is capable of being used in committing any offence against Section 6(1)(b) or Section 9 or any precursor substance. In case adequate evidences proving the same are not produced, it shall be deemed that the entity never was or is involved in any of the activities mentioned in Section 12A.
(v) If the business deals in any of the below mentioned drugs then it would be sufficient to prove the offence.
(vi) The Criminal Standard of Proof means beyond reasonable doubt. It is rigid and need to be strictly followed throughout the common law jurisdictions. Neither the standard nor the required evidence can fluctuate. This is due to the seriousness of the criminal matters and the need to protect the accused and in particular protection of the innocent from conviction. These proceedings are also required for civil contempt because there is a risk of imprisonment.
(vii) A person who is convicted of the offence mentioned in 12A of the Act shall be punished as follows:
Answer (b)
Answer (c)
The Treaty of Waitangi is the agreement which was signed by the representatives of Queen of England and the leaders of most of the Maori tribe when the British 1st claimed New Zealand as a colony way back in the year 1840. In the Northland, the settlement of Waitangi is still the main focus of the events when New Zealand celebrated the signing of the treaty with national holiday on the 6th of February every year. The treaty is important for the country as it governs the relationship between the indigenous people, Maori and everyone else and it ensures that the rights of the Maori and Pakeha are protected.
The Principles of the Treaty of Waitangi is referred to in various Acts of the Parliament. It is an extremely important part of the working style of the New Zealanders and the education system of New Zealand. The treaty of Waitangi is considered as the founding document of New Zealand. The treaty of Waitangi is now not considered as a part of domestic law in New Zealand. And are often referred for Land cases 1987, Fisheries Act 1983, Ngai Tahu Report, other court cases and so on. However, there is an exception to this; the treaty is referred when its principles are referred to in the Acts of the Parliament.
Answer (a)
There are several steps that a bill has to pass before becoming an Act of the Parliament. Each step ensures that the bill is made a subject of public debate and scrutiny. The steps are as follows-
Answer (b)
The Bill currently in the House and that could apply to the Business is the Misuse of Drugs (Medicinal Cannabis Approval) Amendment Bill.
(i). The purpose of the Bill is to provide easy access to a Cannabis preparation which is required by the patients suffering from Terminal Illness or patients suffering from a condition in which they bear significant pain. This bill inserts a new section 8A in the Misuse of Drugs Act 1975. This is inserted so that the Minister does not prevent the supply and administration of the Cannabis Preparations to a patient considered to by a registered practitioner.
(ii). The Parliament of New Zealand considers various types of Bills. They are – Government Bills, Members’ Bills, Local Bills and Private Bills.
The Misuse of Drugs (Medicinal Cannabis Approval) Amendment Bill is a Members’ Bill.
(iii). The Bills is a Members Bill with Hon Damien O’Connor as the Member in Charge of the Bill. It is in the 51st Parliament with 119 members.
(iv). The Bill is in the Introduction stage. It will have to go the first reading, select committee, second reading, committee of the whole house, third reading and the royal assent before it is passed as a law. It will take a lot of time before it is made a law.
Answer (c)
(i). Delegated (or subsidiary or subordinate) legislation are those laws which are made by the person(s) or the bodies whom the parliament has delegated the law making authority. The Authority is provided by the parent act of the parliament, known as the enabling act. This creates structure of law which then delegates the powers to the other person or body to make a more comprehensive law in that area. Statutory Rules and Regulations are the most common types of a delegated legislation. These legislations are made by the executives or the ministers and will apply to the general population. There are 3 different types of delegated legislation. They are –
The Delegated Legislation may be controlled and can also be challenged in the court of law if the law so made is ultra vires, that is to say, the law goes beyond its powers which are given by the enabling act of the parliament.
(ii). There are various by-laws which are a type of delegated legislation which applies to pharma business in New Zealand. One such by-law is the restriction on the supply of the Cannabis Preparations for patients suffering from terminal illness and patients suffering from a condition they have to bear significant pain. This is applied due to various hazards that can prove to be fatal if the preparations are misused or carelessly handled.
(iii). The Medicines Act 1981, the Medicines Regulations 1984, the Medicine New Zealand (MNZ) code of practice empowers the levy of such by-law.
(iv). An amendment in the law is under discussion at the 51st Parliament of New Zealand. When this bill is passed after due consideration of all the aspects then the patients with terminal illness will not have to bear the pain. The Cannabis Preparation would help in curing the patients with terminal illness and the patients who are suffering from conditions in which they have to bear a significant pain. This would not only benefit the patients but also benefit the Pharma business because this preparation could then be supplied to all the areas in New Zealand and also can be exported to other countries or the formulae for the preparation can be shared with the other pharma company so that they can earn royalty from that. This would help earn more revenue and even higher profits because of increased demand for the medicine which till now was not easily available.
Answer (a)
Subsection 2 of the Commerce Act 1986 is applicable in respect of the contract or arrangement that is entered into or an understanding before or after the commencement of this Act. It is noteworthy to denote that there shall be no provision application that are most likely to have an impact on the substantiality lessening of competition in the market which is enforceable.
As held in the case of Munn v Illionis 1877 the state control rail road monopolies were upheld by the supreme court. State regulations and commissions was proved to be ineffective and was even declared corrupt.
The investigator and the enforce department action by the Commerce Commission under the Commerce Act 1986 is usually related to the behavior of large business operators. However, the incident at Trade Me seller can be treated as the reminder to all business people to consider the restriction of Commerce Act 1986. The major purpose of the act is to promote the competition in markets for the long-term benefit of customers. This act is designed to protect that competition by restricting three different type of anti-competitive conduct. In the context of Trade Me seller, the commission received a complaint that the organization had e-mailed a competitor that they should both agree to sell LED bicycle light at a particular set price. According to the complaint, instead of discounting the lights, both the seller agreed to one price.
However, the other seller did not respond to e-email but Commission examined the issue based on the ground that it could amount to attempt price-fixing. In the end, the Commission issued a formal warning to the seller as well as did not seek any further enforcement action. The Commission has further highlighted the fact that Act permits the court to order payment of penalty, even where there has just been an attempt to break the restrictive trade practices.
Answer (b)
The meaning of the legislation is interpreted by the court by ascertaining the meaning of the enactment, which must be understood from the text and in respect of the light of the purpose. Section 5 of the Interpretation Act 1999 states down that the matters might be considered in determining the meaning of the enactment that comprises of the indications that is provided in the enactment. The enactment of section 5 of the Interpretation Act 1999 is applicable to the circumstances as and when they originate and the enactment does not have any retrospective effect. The section 5 of the Interpretation Act 1999 also lays down that the form is not valid just due to matter it contains on the slight differences from a prescribed form as long as the form had the identical effect and it is not misleading.
Answer (c)
Section 5 of the enactment act 1999 states the principles along with the rules for the interpretation of legislation and to shorten the legislation. The Interpretation Act 1999 in the current business context helps in promoting consistency in the language and form of legislation.
Section 5 helps in exercising the power if it becomes necessary or desirable to bring or they are in connection for brining the enactment into the operation. The power can be used in the present business context for removing and suspending the person from the office and reappointing and reinstating the person to the office given the circumstances that the person has already vacated the office or has passed away or is not present.
The above-mentioned incident helps to identify that breaching of laws can lead to serious consequence. In fact, it could permanently suspend the traders in the market. Thus, in the case of pharmaceutical organization, regulatory actions are stringent than other business context. In the coming future, the pharmaceutical organizations might have to face the challenge of challenge of rationale prescribing decision. In the recent time, the health department and regulatory bodies of the nations have asked to improve the rationale prescribing decision that need to be enhanced by the quality of interaction between the healthcare provider and the pharmaceutical organization that manufacture and develop the medicines.
(a) Central London Property Trust Ltd v High Trees House Ltd is a case where a promise was made that was intended to establish the legal relations and the knowledge of the person making the promise. Concerning the facts of this case to ameliorate the circumstances, the parties to the agreement in writing wanted to lower the rent to half of the amount. However, neither of the party stipulated the period for which the lower amount of rent would apply. Over the period of next five years, high trees paid down the lowered rate which led the flats to fill and they were back to full occupancy.
(b) under the system of law a precedent can be defined as the authority or a rule that is established in the previous legal cases which is either binding or persuasive for the court or other tribunal at the time of deciding the subsequent cases having identical issues or facts. On the basis of the previous judgments in Hughes v Metropolitan Railway Co the judge held that the entire rent was payable from the time where the flats became entirely occupied. The judge continued the statement that if central London had attempted to claim the entire amount of rent from 1940 became the precedent in this case.
(c) The Supreme Court sits at the apex of the apex of the New Zealand court hierarchy as the ultimate court of appellate. Cases might also go to the Supreme Court if it provides a leave to appeal. In general hears appeals that are of considerable public interest, commercial significance, substantial injustices or any other significant issues associated with Treaty of Waitangi. The Chief justice presides over the supreme court and they are described in Judicature act in the form of the head of the judiciary. The high court and the Court of Appeal form the subordinate appellate courts. The family court and the youth court are specialist divisions of the district court. Other kinds of specialist court comprise of the employment court; the environment court, Moari Land court, the Maori Appellate Court and disputes tribunals that are smaller claim courts.
In the present scenario, the case was persuasive since it created a doctrine of promissory estoppels.
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