Maritime Powers Bill

on behalf of the Minister of Foreign Affairs: I present a legislative statement on the Maritime Powers Bill.

ASSISTANT SPEAKER (Hon Jacqui Dean): That legislative statement is published under the authority of the House and can be found on the Parliament website.

Thank you, Madam Speaker. I move, That the Maritime Powers Bill be now read a second time.

I want to start by thanking all those who made submissions on the bill for their time and efforts, and also to thank the Foreign Affairs, Defence and Trade Committee for its very careful consideration of the bill. The committee has recommended a number of changes that, in my view, are going to improve and strengthen the bill.

The bill is designed to close gaps in New Zealand’s domestic law which create uncertainty when enforcing our criminal law in international waters, which are the oceans and seas beyond the 12 nautical miles from our coast—an area which includes our exclusive economic zone. The bill provides a clear statutory basis for New Zealand and its agencies and authorities to exercise enforcement powers in international waters in order to enforce New Zealand’s criminal law—essentially extending enforcement powers that New Zealand agencies already have on land and in New Zealand waters into international waters. Addressing these gaps is critical for New Zealand because there are increasing threats within our extensive maritime domain, including trafficking of humans, drugs, arms, and wildlife. Such threats have the ability to seriously harm New Zealand’s people, economy, wildlife, and environment.

Importantly, New Zealand already has the right in international law to exercise enforcement powers provided for in the bill, but the bill simply implements into our domestic law and properly recognises it so there is no doubt at all that those rights we already have in international law can be exercised by our various agencies.

Turning now to the committee’s work, the committee received an overwhelming seven submissions on the bill and one submitter presented an oral submission. Of the seven submissions, four expressly supported the bill—so that’s a majority at least. The other three submitters did not take a position on the bill, so we now have an overwhelming majority of public support for the bill. No submitter expressed opposition to the bill progressing—an even more compelling reason why the House should eagerly embrace it and its contents.

Some submitters made suggestions for improvements to the bill, and a few raised concerns with particular clauses in the bill—and I will cover some of those off now. Two issues raised in submissions relate to the bill as a whole, which the committee carefully considered. The first is whether the bill should be amended to clarify that the Bill of Rights Act—or the New Zealand Bill of Rights Act, as it is properly known—applies to the exercise of powers in the bill. It isn’t necessary, of course, for an Act to include a clause for the New Zealand Bill of Rights Act to apply, because, on the face of that piece of legislation, it already does. The New Zealand Bill of Rights Act applies to the powers in this bill, in accordance with the relevant sections of that Act, and accordingly the committee did not recommend that there should be an explicit clause stating that the New Zealand Bill of Rights Act applies.

The second issue raised by submitters is the bill’s approach to warrants. Consistent with existing domestic legislation, which confers comparable powers in international waters, the bill does not require warrants for the exercise of its powers. This recognises the unpredictable nature of the maritime environment, where there is always a risk of evidence being destroyed or made irretrievable, usually by tossing it overboard. This recognises the unpredictable nature of the maritime environment, where there is always a risk of evidence being destroyed or made irretrievable—sorry, but it also reflects the unique challenges of exercising enforcement powers in international waters, in particular, the need to obtain the consent of the flag state in the case of foreign ships for the exercise of those powers, and that, of course, is not always easy. For these reasons, the committee did not recommend a change to the bill’s approach to warrants.

The committee did recommend a number of minor amendments to improve the bill, including clarifying the purpose clause to reflect that the bill has been designed to ensure consistency with international human rights law. The committee also recommended adding examples to illustrate the types of offences that are within the scope of the bill, and to reinforce that the bill does not create any new substantive offences or expand the jurisdiction of any existing offences. The committee also recommended a number of useful technical improvements to the bill, which relate to terminology—clarifying the limited situations where consent of the flag state is not required to exercise the powers of the bill—and ensuring the powers in the bill are exercisable in respect of persons charged with a serious offence against New Zealand law who then abscond into international waters.

Once again, I want to thank the committee members for their work they’ve done on this bill. I believe the bill is a positive development which will enable us to better secure our extensive maritime domain from increasing threats, such as transnational organised crime, in a fair, reasonable, and proportionate way that is consistent with international law and our own New Zealand Bill of Rights Act. This will support the wellbeing of our communities and advance our security and shared prosperity and our economic interests. On that basis, I commend the bill to the House.

The question is that the motion be agreed to.

It was obviously a rare moment of clarity that the Government was taken with when they decided to introduce this bill. There is no doubt that New Zealand needs this legislation. We have one of the largest territorial seas of any country in the world, and, of course, before anyone can come into those territorial seas, there are vast stretches of international water. It is clear that the security of New Zealand, the integrity of our, you would say, prohibitions on prohibited products are threatened by the way in which some of that product and some of those threats can be transported through those zones. So I agree with the Minister when he says that it is important to extend existing powers in New Zealand on land and in our territorial sea into that international jurisdiction.

So the National Party will be supporting the bill. We look forward to the committee stage, where there should be a decent discussion about the changes that the select committee has recommended. And while there were only seven submissions on the bill, the committee did take quite a bit of time in discussion with the legal team from the Ministry of Foreign Affairs and Trade (MFAT), so that we properly understood where the gap was between New Zealand domestic law, and where the gap was between our territorial seas responsibilities and right of jurisdiction and those of international waters. I think, in the end, we were quite comfortable that extending the law, as this particular bill does, will leave our enforcement agencies in a good position.

The one thing that we were a little concerned about, though—or some members, I should say—was the extension of those powers to a range of officers outside of what we might normally expect in New Zealand. So that would give powers of arrest, search, and seizure to rangers and conservation and endangered species officers. They would have the same powers as police and customs officers, and that is an extension of power that in the past the National Government has been a little wary of. We don’t believe that sometimes volunteer rangers on land should have those particular powers. But at sea, quite clearly, it’s a different thing, because they’re most likely to have been accompanied by, perhaps, military forces through the navy or through the police. Those sorts of other protections, or layers of protection, are there, and this provision, therefore, simply gives protection to someone who is participating in an interception-type activity.

The bill addresses that lack of adequate maritime power, as we’ve said, particularly in international waters. I think it’s appropriate that the New Zealand Government does have a mechanism through its various organs to respond to offending in those areas and to any security threats that might arise. One of the things that the committee looked at, among a number of them, was the clarity of purpose in the bill, and we’ve made some recommendations that I’m pleased to hear the Minister say will be picked up, presumably in a Minister’s Supplementary Order Paper (SOP) in the committee stage of the House.

But alongside that concern, there were also concerns about the interaction of the Crimes Act, the Convention of the United Nations—or the UNCLOS provisions—the United Nations Convention on the Law of the Sea.

💬 Hon Andrew Little: Convention on the sea.

Yes, the Minister knows what I’m talking about, which is a good thing, because he’ll be writing the SOP. So I’m immediately encouraged by that interjection.

There is also, we thought, a need to clarify, too, the issues around pursuit of a vessel without interruption of communications, and that will be further tested out. There is the exception to flagged State vessels. That would mean that if a vessel is carrying a flag of another State, then there would have to be agreement from that State that the enforcement action could take place, and that’s not a big break on the whole deal here. It is obvious that New Zealand enforcement agencies work internationally, particularly in the pursuit of those who are moving illicit drugs around the globe.

Then, of course, we also, as quite an aside, heard from the New Zealand Customs Service this morning about the extent to which they are frequently now having to engage in the long-term tracking of illicit product that’s coming into New Zealand. They’ve had some extraordinary successes. But if there was the capacity, or the capacity existed within New Zealand law, for them to be able to intercept some of those shipments further out from New Zealand territorial waters, perhaps with the assistance of other countries, then that would be a particularly good thing.

There is also a need, we thought, for greater clarity around the powers to detain persons. Remember that this bill, in part, is concerned about the ever-growing problem of human trafficking all around the world, and quite often through the waters that surround New Zealand. So there needs to be quite some clarity about who can be detained in those circumstances, and absolutely no confusion about those who might be victims, and those who might be perpetrators.

Also, we thought the bill could be a little bit enhanced by looking further at the issue of who can execute a warrant for arrest. It comes back to that point I said before about some of the powers that will be, in this bill, granted to rangers and conservation enforcement officers. That needs to be very, very clear. There are provisions in the bill that could make that even clearer.

And then there is an issue around the consent of the Attorney-General. We need to know exactly what it is that the Attorney-General would be required to consent to in any of these activities.

Finally, the issue of warrantless search powers. This is becoming quite a prevalent thing in New Zealand law. We support this with some reluctance, I have to say, but, none the less, if it can be specified exactly where those powers could be exercised, and the law is tight enough, then it may well be reasonable. I note that Parliament yesterday, or last evening, passed a bill through another stage which also granted warrantless powers to police, particularly with regard to firearms. It seems reasonable, then, that there should be similar powers if someone is known to be importing illicit drugs or other materials into New Zealand.

Our enforcement agencies do a good job, in this country, with the tools they have available to them. The Customs department do a fantastic job of trying to protect our borders as much as they can, but our borders are vast. We need to have a range of tools available to them that meet the needs of today and that enable them to engage in the sort of international collaborations that they’re increasingly seeking to do on our behalf for the benefit of the people of New Zealand.

So we will support this bill progressing in the House. We’ll look eagerly towards the Supplementary Order Paper (SOP) that the Minister might bring. I think, given the level of support, it’s appropriate that it is a Minister’s SOP that makes the substantially technical changes to the bill that will give a greater degree of surety to those who might have some concerns about some of the powers extended in this bill, effectively extending the domestic powers of many enforcement activities in New Zealand into international waters as well.

Thank you, Madam Speaker. Like that previous speaker and perhaps the gentleman next to him, Mr McKelvie, many of us grew up on an understanding of the limits of New Zealand law and territory. I refer to, of course, Radio Hauraki, New Zealand’s first pirate radio ship. I see the Speaker nodding herself, so—I would have thought you were too young, Madam Speaker, but obviously you were in that era yourself. We all understood that at a time when New Zealand music was changing, and when perhaps banjo music was more popular in some parts of the country than others, that The Beatles and other bands crept into New Zealand, but the licences to play that music weren’t available. So the ship—I understand the Tiri, the first one, and the Tiri, the second one. Both of them, I seem to remember, ran aground on Great Barrier Island at some stage. They were actually able to operate outside New Zealand territorial waters. I say that just to give some context so that people—who have been around this House a little bit longer—will understand what this bill is about.

We live in an era where organised crime is very well organised. Now, that seems something of an obvious statement to make, but sometimes I don’t think we quite understand how well organised internationally these people are. So anything that is international immediately needs an international response, and it means that we must give our authorities the ability to operate outside the traditional borders, which they do. The spectre of people racing for the mythical 200-mile limit—economic limit, or New Zealand’s economic zone or just New Zealand territorial waters. Those opportunities are removed in this situation because organised crime—traditionally, we’d like to think of them as drugs, maybe robberies and cars, various other things, but their activities extend way beyond that. Wildlife—essentially anything that is illegal that you can make some money out of, they will be into. That’s why, of course, the wildlife aspect of this has been placed in it. It’s extremely lucrative, where you get rare species who can be exported, or, indeed, imported. I see, also, even reference to the use of rare animal materials in various substances. I think the rhino horn might have been one of the ones that was brought up—again, something that may be of interest to some members across the House.

With that organised crime, another very important aspect of this is that we now have increased—in the Search and Surveillance Act 2012, one that the previous speaker was actually part of passing here. It was something that was designed to update the search ability, because as crime and criminals have advanced, as their methods of being able to secrete or hide the various substances which they are involved in have evolved, so it is important that the law and those that are enforcing those laws be able to so operate. So, again, this bill, as I look through it, certainly does ensure that those domestic search and surveillance powers that were granted to the New Zealand authorities are extended into that international zone.

There are the usual protections you will have because, again, I note that it’s not a fishing expedition as such, whereby the authorities can go and pick a ship and say, “Well, we think something might be going on there.” The real protection, like there is in all these pieces of legislation, and particularly around the search and surveillance, is that there must be a reasonable ground to suspect. Of course, these are the types of things that later on, if there is a court case—and there is obviously intended that there would be—those officers that used these powers would have to prove that they did have a reasonable ground to suspect that an offence had been or will be committed on board that vessel, and, again, we can go back to the people-smuggling aspect of that, in particular. There are different thresholds because we then go to what is a slightly higher threshold, which is reasonable grounds to believe that there is evidence on board a ship of serious criminal offending.

That may seem like semantics, but through case law and precedent, both of those phrases have been well extrapolated, and, again, as I say, through precedent, they have been well defined. So it’s not as though we’re going to be—and I say to those who fear that somehow we’ll be letting our authorities out there to stop any ship that’s passing at any time of the day that that certainly won’t be happening.

This is, again, a very important piece of legislation. I think we’ve become aware that there’s not many pieces of legislation that come before this House where there’s not some sort of COVID aspect to it that is highlighted. One thing COVID has done is I think it’s highlighted an understanding of how our world operates, and supply chains and supply lines have become a very important part of that. As we lament the lack of shipbuilding around the world and lament the lack of container building over the years in recent times, that is certainly impacting on us here at this end of the world. We do certainly understand that everything that we have here will most likely have had some sort of component which we have to bring into New Zealand, and so it is with the criminal fraternity. Much of what they operate with and much of what they make their livings out of comes through those supply chains.

Also, with our increased surveillance powers, often with the intelligence received it will be a matter of knowing something is going to be coming to New Zealand and knowing that it’s on a certain ship, with evidence that that merchandise is actually on those ships that are coming here, and the closer they get to our coastline, the more difficult, often, it can be to detect the offending. You can imagine the difference of having a ship 150 kilometres out, where we have sufficient evidence and good cause to suspect that there is contraband on that ship or offences being committed—imagine how much easier it is to actually ensure that we isolate the crime scene, if you like, or even reduce the opportunities for them to drop the goods than if they are coming into Tauranga Harbour, for example.

There are many police operations and customs operations that have taken place where ships have been coming to, particularly, Tauranga Harbour, as it seems to be becoming one of the main areas to import much of our goods because of infiltration of organised crime, as I’ve spoken about before, at various levels of the supply chain. Once those ships are in the harbour, you can imagine the opportunities there are for goods to be dropped off where there is so much shipping and small boats. We’ve just heard this morning how many small boats there are operating in places like Tauranga Harbour since COVID, again, simply because those who would normally have spent their money overseas are now spending it on those small boats.

So this is a very, very good piece of legislation. It’s surprising that we haven’t had to deal with it before. Again, it’s a tribute to how well our law enforcement agencies are working that more and more they are aware and are working with foreign agencies and working with foreign police forces and customs, and are getting the information so that we are better equipped to try and stop the flow of illicit substances coming into New Zealand and stop the flow of people-trafficking coming into New Zealand, using the international networks that we have. So to be able to effectively police what is an increased information flow on these issues without the sorts of powers that are allowed and permitted by this bill would have, in fact, been really to hamstring the very authorities that we rely on very much to be keeping us all safe. So it gives me great pleasure to stand here and commend this bill to the House.

It’s a pleasure to take a call in the House. It’s the first time I’ve been allowed in the House this year, and I’m pleased to be back down here where the air’s rare and the heat’s not quite so great. It’s a pleasure to be able to take a call on the Maritime Powers Bill. Isn’t it lucky that I’m following Andrew Little, who knows all about the law; the Hon Gerry Brownlee, who knows all about foreign affairs; and—I was going to say the Hon Greg O’Connor, but I’ve jumped the gun; he’ll get there one day, maybe—Greg O’Connor, who knows all about enforcement. I know nothing about this bill other than the fact that I was the spokesperson for fisheries for a while, and it’s a very interesting topic and it does have some relevance to this.

But having listened to those three speakers, I do in all seriousness realise the importance of this bill to New Zealand, and whilst I was around in the days of the good radio station that Greg O’Connor was talking about—and I do remember it quite well. It’s ironic, isn’t it, when you think that we’ve come such a long way as a country that you can now set up a radio station in Parliament and broadcast to whoever you want almost, whereas in those days you couldn’t.

This bill is an important bill, and I was a bit interested in some of the clauses in it because if you think about the fishing industry, for example, there is a lot of illegal fishing that goes on in the world, and to actually catch those boats that are out there fishing illegally and get them before they get out of our territorial waters, which is what happens to us at the moment, is almost impossible. So this bill will have quite an impact on that. And it wasn’t that long ago that we had a boat from North America fishing for toothfish in the Southern Ocean getting back there and getting into port before it was caught. So the ways that you catch the people involved in what can only be described as criminal activity are quite interesting.

Some of the things that interested me in this bill were the issues that the select committee dealt with, and I think they will be dealt with again, as Gerry Brownlee said, in the course of the committee of the whole House. I was just imagining some crim jumping overboard and the Lady Elizabeth chasing him around in the Southern Ocean. If I was a crim I don’t think I’d be that keen to take the sharks on. I think I’d rather take the Lady Elizabeth on, than the sharks, but it does show the lengths to which these people go to escape. The other issue that I think will be challenging for New Zealand—and it relates exactly back to the fisheries issue I talked about a few seconds ago—is the fact that we have to contact international countries and partners to get permission to effectively board their flagged ships, and I think that will not be forthcoming in a lot of cases, and it will be not forthcoming in the cases that we really need to get involved in. So I think that will be a bit of a challenge for New Zealand, and it might be able to be managed through further discussion or even through a Supplementary Order Paper brought forward by the Minister.

I think that is a challenge for us because there are plenty of countries in the world that aren’t that friendly and even whose income comes from some of those illicit activities that we’re trying to intercept before they get to New Zealand and preclude from getting here. So there’s some challenges in this piece of legislation, which sets out to enable us to intercept, as Greg O’Connor so aptly said, a whole lot of people and a whole lot of illicit goods, whether it’s fish or drugs, or whatever it might be, before they get here. So for us to have the intelligence—and I mean this sort of intelligence, not that sort of intelligence. I mean the intelligence that tells us where things are, where they’re coming from, and where we need to get to to intercept them is quite important to New Zealand. So I think there are a lot of things in this bill that will add considerable powers to what goes on in New Zealand, and it gives our law enforcement agencies, our rangers, and people like that, who have authority in this area—fisheries officers—to go out there and do what they’re required to do. One only has to look at what’s going on in front of this building and the extraordinarily difficult challenge that the police have in order to see the job they’re required to do sometimes—and in this case in international waters, far from New Zealand, and in probably what could amount to quite dangerous circumstances.

So I’ve got no problem in supporting this bill. It’s a place that I’ve not really had a lot of practice in speaking on—foreign affairs, or this sort of territory. But I do think that this bill will add a whole lot to New Zealand, and I fully support it going forward in the House, and I look forward to the discussion that happens during the course of the committee stage.

Members, this debate is interrupted and set down for resumption next sitting day. The House stands adjourned until 2 p.m. on Tuesday.

The House adjourned at 4.57 p.m.