Conservation (Infringement System) Bill

on behalf of the Minister of Conservation: I move, That the Conservation (Infringement System) Bill be now read a first time. I nominate the Environment Committee to consider the bill.

I move that the Conservation (Infringement System) Bill be read. The bill is a long overdue reform to conservation legislation, which had its beginnings back in 2002. It introduces an infringement system to better protect conservation values, while ensuring that people do not risk criminal convictions for simply committing minor offences. I acknowledge the former Ministers of Conservation and Justice and the former Attorney-General for their work on this bill, which was introduced under the previous Government. I hope National will continue to support the bill.

The bill does not change what is illegal. It provides another tool—infringement notices—for dealing with lesser offences under conservation legislation. Infringement notices will sit between formal warnings and prosecutions, and may be appropriate for many offences. The bill should make compliance and enforcement systems more efficient and effective because it gives the Department of Conservation (DOC) and council officers—in relation to reserves—this additional enforcement tool.

I, and I’m sure other members of this House, want to see our national parks, public conservation lands, marine reserves, and indigenous plants and wildlife kept safe from illegal human activities, but I don’t want to see people prosecuted and get a criminal conviction for a minor breech of the whitebaiting regulations or for dropping litter in a park. I also want a better deterrence tool to achieve protection for conservation than offenders simply receiving a formal warning.

The bill amends eight Acts, namely the Conservation Act 1987, the Marine Mammals Protection Act 1978, the Marine Reserves Act 1971, the National Parks Act 1980, the Reserves Act 1977, the Trade in Endangered Species Act 1989, the Wild Animal Control Act 1977, and the Wildlife Act 1953 by inserting a new part in each of those Acts with a new set of infringement offences that duplicate existing offences in conservation legislation. These new parts enable warranted DOC officers and local authority officials—in relation to the reserves that councils administer—to issue infringement notices for less serious breaches of the offence provisions. The recipient of such a notice would be liable to an infringement fee, rather than a court summons and a potential conviction.

In general, each offence in the current law—fishing in a marine reserve, for example—encompasses a wide range of offending. Somebody who fishes in a marine reserve inadvertently, and does not catch any fish or do any harm to the reserve, may well be suitable for an infringement notice. Conversely, someone who deliberately flouts the rules and poaches fish from it is likely to merit prosecution action. The bill will make the treatment of less serious offending under conservation legislation consistent with the approach to enforcement we already have under our fisheries, biosecurity, and resource management laws. It should also remove unnecessary costs to the court system.

The bill also provides for DOC’s warranted officers to require information in evidence, if needed, for a prosecution or an infringement notice, as currently there is no such power in the Conservation Act. This is an essential part for an effective infringement system, and is already present in other Acts.

The bill has been drafted so that those committing serious offences, such as using a firearm in an unsafe way, obstructing enforcement officers, or causing significant harm to conservation values, would not be able to be given infringement notices and would be prosecuted. These offences were identified in consultation with the police and the Ministry of Justice.

Before the bill is enacted, DOC will develop further procedures around the use of the compliance tools and how the infringement system will operate. These procedures will ensure that Māori customary rights are respected when doing enforcement work. The seriousness of offending criterion in the guidelines will recognise whether a particular species is a taonga species and the impact of the offending on wāhi tapu or other sites significant to Māori.

The intention is not that warranted DOC enforcement officers will issue tickets on the spot; rather, these warranted officers would collect information and pass it to a group of trained enforcement specialists, who would then decide how the alleged offence should be dealt with: no action, a warning letter, an infringement notice, or a formal prosecution. This approach is designed to ensure consistent treatment. The actual infringement fees will be set in regulations.

One particular issue the Minister of Conservation would welcome public submissions on, and select committee consideration of, is whether Fish & Game councils should have access to the infringement notice system. The bill, as introduced, enables DOC to use infringement notices for managing the Taupō sports fishery. It does not, however, currently provide for Fish & Game—which is a non-governmental agency—to use infringement notices to manage other sports fisheries, such as trout and salmon elsewhere in New Zealand, or game-bird hunting, which it is responsible for. Care is needed in giving non-government agencies the power to issue sanctions because, unless the infringement notice is challenged, the courts do not sit between the enforcement agency and the offender to safeguard due process and provide a check on the exercise of power.

The Minister has explored, with officials, some safeguards that could be used if Fish & Game councils were given the power to issue infringement notices. One option would be to give Fish & Game rangers only new powers to collect information from suspected offenders, to then pass on to DOC’s enforcement team to decide whether a notice should be issued and to issue it. This would, however, place a cost on DOC to manage some fish and game enforcement work.

The Minister would welcome public feedback and the select committee’s consideration of the implications of this approach and whether there are other options for delivering a more effective and efficient system for fish and game management, while ensuring the interests of the public are protected. So rather than proposing a specific solution to Parliament in a Supplementary Order Paper, the Minister of Conservation will be asking the select committee to consider the issue and then provide either an amended bill for Parliament to consider or a report setting out why no changes to the bill are needed in relation to fish and game.

I believe this bill will make the enforcement system for conservation legislation more effective and efficient, make better use of DOC’s enforcement resources, and, by keeping less serious offences out of the courts, save court time and resources. I commend the Conservation (Infringement System) Bill to the House.

Thank you, Madam Deputy Speaker. It is with great pleasure that I rise to speak at the first reading of the Conservation (Infringement System) Bill. Naturally, National supports this; it was our bill. The Department of Conservation (DOC) has wanted it for a number of years, and I would have to say, with my predecessor, the Hon Dr Nick Smith, and myself when I was the conservation Minister, that DOC were very persuasive and eloquent in outlining the advantages to its rangers to have an infringement system that didn’t take up so much of their time.

In a nutshell, over the years, DOC rangers who want to be out there protecting nature, safeguarding nature and our environment, particularly across the public conservation lands, have had an inordinate amount of time spent chasing up people, and the infringement system, as outlined in this bill very comprehensively, and the regulatory impact statement as well, outlines how thoroughly DOC have thought this one through and how much time and effort it will remove for DOC rangers spending time on non-essentials and concentrating on their core business. So it’s an excellent piece of work—long overdue, as I said.

I think that this is a bill that will, by making the fines smaller—because, of course, we have changed, in the last Government, the range of fines that have been available to use for DOC and for the Crown for really bad offences. The Wildlife (Powers) Amendment Act in 2017 was a case in point, and people in this House may recall the publicity around the jewelled geckos and people smuggling them out in their underpants, and so forth. The international market for some of our unique national taonga is such that they have been targeted. It was essential to up the ante and make New Zealand less of a soft target for these international poachers, and that’s what we did and the fines were dramatically increased. We upgraded the language, as well, of the 1953 Wildlife Act to give the DOC rangers extra powers, which, again, they felt they needed.

With due consideration to Fish & Game and other NGOs and other entities, the DOC rangers are public servants that have a duty to the public that is well understood and well enshrined, and it has been a very interesting exploration, with any of the infringement systems that we have changed and updated, to see how broadly we can allow those powers to be used by other individuals rather than just, for example, the DOC rangers. But there are some compelling cases, perhaps, that we can discuss and flesh out in select committee when it comes to this particular legislation.

The proposed infringement system, as has been outlined by the previous speaker, Julie Anne Genter, will involve things like the minor breaches around fisheries regulations, camping in the wrong place, dogs being let off the lead in prohibited areas, and taking plants from our national parks. I’m not minimising these offences, but on the scale of things, it is appropriate to use an infringement system rather than the more heavy-duty tools, which was really all that was available to DOC rangers until this piece of legislation was put forward.

It is an omnibus. It does change eight pieces of legislation, were it to pass, and I believe it will pass. I think that the NGOs that have consistently assessed DOC’s work assessed the need to protect our nature. The Environmental Defence Society and others have been carefully examining what powers DOC rangers should have, and I think it’s fair to say there is widespread agreement for an infringement system that addresses the minor—were time-consuming but should be less so—offences, but in a way that makes people aware that if they transgress, they will be held to account.

So I think that across the parties I’d be surprised if there’s anyone who’s against this. I would be surprised if there was any real opposition from anyone, really, to this, because it is sensible and a long-overdue measure. I think that, in the same way that we have been updating across successive Governments the powers of DOC and its ability to do its job well and as efficiently as possible and concentrate on its core business, this is the kind of measure that fits very neatly into those updates and reforms.

It’s also very similar to what’s already happening across fisheries, for example, with the Resource Management and Biosecurity Acts, transport legislation, and animal welfare legislation, as well as health and safety. So to be able to apply this as well to the conservation estate is eminently sensible. DOC deals with a wide range of offences and have trained rangers and grades of trained rangers that really will rise to the occasion with this, and it will make the big machine of DOC work that much more efficiently.

Implementing a fine system will create a very sensible middle ground to deal with making people aware that they’ve had an offence but not making them criminals, and I think that’s another distinction that is important, because people were fighting the fines and the other mechanisms that DOC had at its disposal as a tool. They were fighting them because they didn’t want a criminal record. The stakes were high, but for an infringement system the tendency, I think, will be to admit the wrongdoing, to get on with putting it right if you’re caught as an individual—not, of course, Madam Deputy Speaker. But if people are caught, then they can just get on with it and not risk having a criminal conviction, which is a problem for a lot of people—it has been in the past.

The rangers will be freed up to work in the parks to do what they do so terrifically well. So I don’t believe there’s much need, really, to take up more of the House’s time on this. It has been explained what the bill will do. The impact statements have been very carefully thought through. I think that this is a comprehensive omnibus bill that is long overdue, that is very much needed, and I think we should just get on with and send it through to the Environment Committee, where we will look forward to examining it in some detail. I’m a member of that committee, and the chair and the rest of us will pay close attention to the submissions.

As the person acting for the Minister from the Greens said a moment ago, the submissions are deliberately asking for people to talk about Fish & Game and the broadening out of these powers and whether others should be allowed to do it. That presents some gnarly questions, which are best teased out in the engine room of a select committee.

So I look forward to it coming before the Environment Committee in due course, and I commend this bill to the House.

Thank you, Madam Deputy Speaker. Can I thank the Hon Maggie Barry and the prior Minister, the Hon Nick Smith, for the work that they did on this bill, and acknowledge the fact that this is a machinery of Government bill that is coming out of the machinery of Government as a consequence of your efforts, rather than ours. I thank you for that.

Can I also make a comment on the Environment Committee, which I’ve had the pleasure of sitting on a number of occasions, and note that I think the Environment Committee is often one of the best-peopled committees in the House—

💬 Fletcher Tabuteau: You would say that.

No, it’s because of the importance that New Zealand attaches to it. I’ve sat on a lot of select committees, and I’ve always been impressed with the level of capability that sits on both sides of the fence, if you like, on the Environment Committee the whole time I’ve been in Parliament, which started when I had a bit more hair, 15 years ago. So I’m sure that this bill will be well considered—

💬 DEPUTY SPEAKER: And it was a different colour.

—when it gets to select committee. And I have some suggestions—I didn’t hear that. What was that?

💬 DEPUTY SPEAKER: As was mine.

Ha, ha! Oh, right.

The key aspects of this bill have been addressed by prior speakers. I want to make a couple of comments about some aspects of it that I have personal experience in. I didn’t do a lot of prosecutions as a lawyer, but my firm used to do a lot of work for what were acclimatisation societies, and then the Fish & Game councils, and I did prosecutions on a lot of these minor offences.

I think one of the things that is mentioned here about both the complexity of process for the prosecutor and the difficulty of the process for the accused is actually right. The idea that someone who’s charged with a minor offence, whether it’s a camping offence or, you know, running a dog in an area that they shouldn’t be in—you know, I’m not wanting to diminish the fact that these things ought not to do be done, but they ain’t murder. And within each of those offence categories there will be a spectrum of activity, some of which should just have a warning, some of which should have a full prosecution—and I’ll come back to that with the trade and endangered species stuff—and some of which should have an infringement note that sits in the middle.

For just about all of the ones that I used to do for the Fish & Game Council, they should’ve been an infringement notice—fishing without a licence. Really, you know—do we really want to force either the Fish & Game Council or the accused to go into a court process where someone ends up with a criminal conviction rather than paying a fine for an offence notice? Really? Really? Let’s get a bit practical here.

What’s the difference between this and the parking fines that are dealt out by district councils? What’s the difference between this and the broader powers in respect of traffic infringements that used to be handed out by councils before all of those things were centralised to the Ministry of Transport and then, eventually, into the police? It’s not so many years ago that there were a lot of other classifications of driving offences that were prosecuted by some councils.

And I think we’re in danger of being too precious about some of these things if we say that there’s some special status that relates to Crown employees in the Department of Conservation compared with trained employees of a statutory authority, Fish & Game—because they are a statutory authority. No, they’re not the Crown, but Parliament has decided that, in this area of governance, it’s going to delegate, instead of to a council—a regional council or a district council—or instead of delegating it to the Department of Conservation, they’re delegating that function to Fish & Game.

Now, are Fish & Game to be trusted in these areas? Well, they seem to have done all right in the prosecutions, in their exercise of prosecutorial discretions in the more serious route that they can already take, so why can’t they be trusted in this? Is it because of this idea that, somehow, they’ll be subject to judicial oversight, and without that judicial oversight, they’ll be irresponsible? I think that is wrong. They haven’t needed to have judicial oversight of some of their other functions.

You know, their decisions as to whether they advocate for things before councils, which are probably—you know, they have serious effect on public and private property rights. They do that, and they’ve done it responsibly. In fact, I think it’s probably true that an amazing proportion of New Zealand’s river protection work that’s been done in New Zealand actually hasn’t been done by the Department of Conservation; it’s more often been done by Fish & Game. That’s true—if you look at most of the conservation orders throughout the country, they’ve been done by Fish & Game, and it’s a minority of them that has been advanced by the Department of Conservation.

💬 Hon Maggie Barry: Public accountability, though.

Well, they do have public accountability: they’re accountable through their Minister.

There was, with respect, a ridiculous decision, I thought, that was taken by the last select committee when we were actually asked, in respect of their ability to seek information for a prosecution—the pedantic advice that came from the Crown was that the Fish & Game Council could not be allowed to require the person to give their date of birth. They can require their name, they can require their address by law; they couldn’t be required to give their date of birth. What a nonsense, because the prosecutorial guidelines that they have to meet when they file a prosecution include that they’ve got to give the date of birth of the accused. It was absurd. It was absurd advice, and I was one of those who thought at select committee we should fix that, despite the officials’ advice to the contrary. But that was nonsensical.

The very things that are there for the prosecutorial guidelines that applied to them, including the date of birth, they couldn’t gather, and that has practical consequences. John Smith sometimes lives in the same house as the father of John Smith, John Smith. So how do you distinguish between John Smith and John Smith both living at the same address if you cannot ask for their date of birth? So that’s how pedantic these things have become in New Zealand, and I, personally, think that the select committee should look favourably at the idea that Fish & Game councils should have this.

There are lots of Fish & Game Council employees out there. They are already paid for. There is no additional cost to the State or to Fish & Game. There’s lots of these people. They have a training regime that was explained to the select committee last time, in respect of their exercise of discretion. There was one issue in respect of putting people at risk in respect of firearms offences, which I think the committee should look at. I wasn’t sure about that one myself. I can understand that there might be concern about that, but I would’ve thought that’s an issue for Fish & Game to have a look at through their lens as an employer of these people, rather than for Parliament to say they should not have this this infringement offence.

So I think I’ve probably covered the main points that I was going to make in respect of that. They are a statutory authority, they are fulfilling a statutory duty, and they have a jurisdiction in respect of things that, effectively, no one else is policing. So if they’re not policing it in an effective way—we all know that the court processes are hugely expensive, and we don’t want to put unnecessary burdens on either prosecutor or accused in terms of the cost of those functions, and we don’t want unnecessary stress to be faced with them.

Returning to the discretion that’s going to have to be exercised, assuming this legislation does eventually get approved by the select committee and Parliament—and I think the former Minister, the Hon Maggie Barry, was right that this legislation is likely to pass through all stages, eventually, in this House and become law—a discretion has to be made. It will have to be exercised by those that have these powers—or they’ll have more than one power; they’ll have a power to decide whether they issue an infringement notice or whether they go down the more serious route. I certainly think that the department should be funded to take prosecutions, not just infringement notices, in serious cases. The law should be enforced.

I know the last Minister, so I’m not sure which Minister would have seen the cost of prosecutions of some of those people who were stealing our jewelled geckos—you know, our rare and endangered species—and smuggling them overseas, or birds eggs, or—you know, there’s some real ratbags out there in the world. Some of them have very, very low ethics, and they will come and they will threaten our endangered species, and when we catch them, I think the ministry should be sufficiently funded to actually throw the book at them, because I think it’s abhorrent that they would be trading in New Zealand’s endangered species. In terms of criminal offences, it is such a deliberate act. It’s so planned, and we have threatened species. So, with those comments, I support the bill.

I want to join with other members and endorse the Conservation (Infringement System) Bill that’s being introduced with this first reading, and indicate National’s strong support for it. It’s a bill that was introduced by the former Minister, Maggie Barry. It’s a bill that’s going to end up with better conservation outcomes. It’s a bill that’s actually going to be more just for people that commit offences across the various conservation statutes. And, actually, it’s a bill that’s going to save the taxpayers money. So it ticks all three of those issues.

But I can’t help commenting that here we are in the middle of the first 100 days of the new Government and they’re so bereft of new ideas and legislation that within that 100 days we’re passing National Party bills. It just reinforces how ill-prepared the new Government was for taking up the role of office, and long may the new Government advance legislation that has been advanced by us. It’s a reinforcement of how much was in the pipe from the previous Government and how vacant the new parties opposite—

💬 Kiritapu Allan: I raise a point of order, Madam Speaker. The member has been speaking for almost 2 minutes, and we are yet to hear of the substantive matters addressed in the bill.

💬 DEPUTY SPEAKER: The Speaker is the judge of that. I appreciate the point and I’ll ask the member to continue.

Members opposite are so sensitive on this point that in the first 100 days it’s National legislation that they are putting through this House. Let me come to the issues of why it’s good legislation that my colleague Maggie Barry has raised, and that is around the issue of the infringement offences. What we want is better conservation outcomes. Here’s the dilemma: you’re a Department of Conservation (DOC) official, you’re out on the Marlborough Sounds—

💬 DEPUTY SPEAKER: I’m not. Ha, ha!

—and the person is offending against the marine reserves law by fishing within it. And the choice is to either turn a blind eye, give the person a warning, or to spend more than $20,000 on a full court prosecution and give that person a criminal offence.

I’ve had the facing of constituents who have committed, actually, in the big picture, relatively minor conservation offences—you know, they’ve had a dog in a reserve where they’re not meant to, they’ve assumed that they can have their 4-wheel drive vehicle in a particular area and haven’t been able to, they’ve misjudged the boundary of the marine reserve and next minute they’ve got a criminal offence on their book that means that if they ever want to travel overseas, it’s like they’ve committed something really serious.

So the concept in this bill of having infringement offences and instant fines, in my view, is going to result in better conservation outcomes. Why? Because the DOC official or the Fish & Game guy is going to say, when somebody has done something wrong, “Actually, you do deserve an instant fine.”, but it actually is not good use of taxpayers’ money. It’s my prediction that there will be a lot more people that actually end up being prosecuted under these eight different conservation Acts than occurs currently. That means people think they’ve got a better chance of being caught and being fined, and so it is my view that you’ll get better conservation outcomes.

Secondly, it’s my view that it will be more just. It will be more just, because, actually, if somebody’s got a dog in a DOC reserve or a local government reserve that’s inappropriate, it is actually unfair for them to go through the full expense of engaging a lawyer, where the penalty becomes out of scale with the level of the offence, simply because of the bureaucracy of having to go through a full court hearing.

And here’s the other part: we as taxpayers spend a huge sum of money on our court systems. We all get frustrated as constituency MPs sometimes at the delays and the expense of that process. This bill eliminates that and that’s why it’s a good bill this House should support.

Debate interrupted.

The House adjourned at 6 p.m.