Maritime Powers Bill

Thank you, Madam Speaker. It’s a pleasure to take a call on this, the Maritime Powers Bill, at its second reading. I join alongside my colleagues on both sides of the House in supporting the passage of this bill. It’s been a while since we had the earlier part of this second reading; so I’ll just go over a bit about what this bill will achieve.

Quite simply, this bill will allow New Zealand’s existing laws against serious criminal offending to be enforced in international waters where New Zealand has extra-territorial jurisdiction. This includes offences that take place on a New Zealand - flagged vessel in international waters, offences that take place on board a foreign-flagged or a stateless vessel in international waters but where New Zealand has extra-territorial jurisdiction, and in situations where a person is suspected of committing an offence against New Zealand law and is located on a foreign, New Zealand, or stateless vessel.

In summary—and because we’ve had the plain English bill through the House this week—it would cover crimes on our vessels, crimes on our waters, and crimes against our laws. This bill does so by extending the powers of law enforcement. In doing so, it supports our law enforcement officials in their work when they have to undertake them on vessels. This change would be consistent with New Zealand’s rights under international law—particularly the United Nations’ Convention on the Law of the Sea. It is also consistent with our rights and obligations under international law generally.

When I was at law school, when it came to picking our electives, I didn’t take a paper on the law of the sea; I instead took labour law. However, my good friend and contemporary and fellow student at the time Dr Bevan Martin did take this elective. He is now a specialist lawyer and academic in maritime law, and I am here as a Labour MP. Isn’t it interesting how sometimes our paths can diverge and lead us to different places? But, in having a friend who is a specialist maritime lawyer, I did take the opportunity to ask Dr Martin about this bill and his view on this bill as someone who can look at it somewhat independently. He responded as follows: “The world’s oceans are places of complex and overlapping claims to jurisdiction, to legal authority over persons and vessels. Within these vast spaces, a wide range of illegal activity can take place in relative anonymity, often by vessels that fly flags of convenience with no real oversight from the State under whose flag they operate. Drug smuggling, human trafficking, illegal fishing, and even piracy can thrive if responsible countries do not maintain a careful watch over their zones of responsibility.”

The United Nations’ Convention on the Law of the Sea recognises the need for States to exercise criminal enforcement jurisdiction over domestic and foreign vessels across the full range of maritime zones—from the high seas to the territorial sea. While our powers are more extensive closer to home than in international waters, the United Nations’ Convention on the Law of the Sea shows that some actions are universally acknowledged by the international community as criminal, and as acts that should, therefore, be suppressed anywhere they are identified. Notably, this can be piracy, slavery, and also drug offences, including some other trafficking as well. New Zealand’s obligation to suppress unlawful activity in the sea is further bound up in a series of international obligations that go back decades—notably the Convention on Suppression of Unlawful Acts against Safety in Maritime Navigation in 1988. This convention recognised—and I quote—“unlawful acts against the safety of maritime navigation that jeopardise the safety of persons and property and seriously affect the operation of maritime services and undermine the confidence of peoples in the world of the safety of maritime navigation.” This particular convention following 9/11 was further significantly updated, and New Zealand, at that time, joined with many others in the international community in recommitting to the goal of safer seas.

So when I did ask my friend about this bill, it was very clear that he supported this bill, and I thank him for his insights and comments and work in this area. It is clear by prioritising this bill that the Government is demonstrating both New Zealand’s obligations under international law and also, just as importantly, to the people who we ask to patrol our seas, often in fast developing situations—that they are also supported and able to continue to do their work. It is essential that we extend and clarify the powers of those who we charge with keeping our oceans safe, for both New Zealanders and also for those who visit New Zealand—and hopefully there will be more of those shortly when the borders reopen—and therefore fall under our protection.

We also have to consider the alternative of passing this legislation: a New Zealand naval vessel, for example, that was boarded and then detained a vessel suspected of, say, human trafficking or worse, and then compelled it to return to a New Zealand port, only to have the offenders escape justice on a technicality based on the New Zealand Parliament not giving officials powers that they needed to undertake enforcement action. Now, while this might sound like a plot of some movie based on the high seas or some fictional drama, these are not fictional concerns but real possibilities that we want to avoid with the passage of this bill. So that is why it is so important that this House passes this bill.

This bill is also consistent with Labour’s commitments. Labour has a longstanding commitment to an independent foreign policy, including upholding the rule of law, and this bill is consistent with that. Labour also has a proud tradition of multilateralism, human rights, and commitment to international law. As a trading nation, New Zealand has a growing marine economy and a domestic market that is increasingly relying on the connectivity that the sea provides to the global supply chain. Sea transport is the most common mode of transport to import and export goods. So, again, in plain English, we sell a lot of stuff, and we use ships to transport it. That is why this bill is so important.

Now, I wasn’t part of the select committee that considered this bill, but I understand they received a small amount of submissions: seven in total. Four, I think, expressly supported this bill, and the others didn’t take a position. So I think we can assume there isn’t any widespread public opposition to this bill. The select committee also provided some useful feedback, and I know that the Minister, when reading the initial speech on the second reading, noted some technical amendments that improved the bill as a result of the deliberation by the select committee. So I thank the select committee very much for the work that they did on that.

In conclusion, New Zealand’s maritime security environment is becoming more complex and more dynamic. Keeping our maritime environment safe and secure and holding those who commit offences against New Zealand law to account is critical. This is particularly important in New Zealand, as an island nation, while upholding the rule of international law. I wish to share the Minister’s sentiment that this bill is a positive step and one that will enable us to uphold maritime national security in a fair and proportionate way, in line with international law and in line with the New Zealand Bill of Rights Act. I thank the Minister and the select committee and the submitters very much for their work, and I commend this bill to the House.

Thank you, Madam Speaker. I do happen to sit on the Foreign Affairs, Defence and Trade Committee, who had the privilege of hearing submissions on this bill and doing the examination. It’s not often that that committee receives legislation to consider, so we were all suitably excited. It does touch upon foreign affairs in a way, but this is about our domestic rule of law. New Zealand—and I don’t think most New Zealanders know or appreciate this, but we have the job of patrolling about a fifth of the world’s oceans. That’s for environmental monitoring, it’s for criminal activity, and it’s for disaster relief.

The Green Party, whilst we agree with the intent of this law in terms of allowing for that monitoring to be extended in the case of some serious crimes—and I don’t think that there’s any debate about these crimes being crimes or these activities constituting crimes and things that we all want to stop, like slavery, people-trafficking, and trafficking of drugs. In the case of the Green Party, we’re quite concerned about the trafficking of rare and endangered species, which does happen at the high seas as well. The method by which the bill goes about doing that, which is to expand the powers of board and search in a way that undermines, as we see it, the rule of law—and the New Zealand Law Society agrees it undermines the rule of law—is of concern to us because whilst it is important to monitor criminal activity and to enforce the law, the way that we do that always contributes to the way that rule of law and human rights are protected across the globe, including on the high seas.

So, obviously, when you look at something like the illegal, unlawful, and overfishing inquiry in the Pacific, which the foreign affairs committee is currently undertaking, we know that there’s a range of activities that both touches on undermining environmental protections and very much sits in what we might think comfortably doesn’t ever happen in the modern world—but it does—like human trafficking and slavery. These things do happen. There is a need for that.

But what this bill allows for—and it actually imports the exact language of the Search and Surveillance Act, which I have quite a bit of experience in applying and dealing with in the domestic courts; what it imports is the exact wording of the warrantless search powers that police have under that Act and under some other acts like the firearms and prohibition Act and the Misuse of Drugs Act. But it doesn’t allow for any type of search or circumstance where a search happens to be judicially monitored. This bill doesn’t allow for a search warrant to be sought or obtained in an ordinary circumstance.

So while these other laws that guide enforcement officers in terms of search and seizure allow for a fast-moving situation where a warrantless search is required, this bill only allows for warrantless discretionary searches. To put that into context, it also allows for, for example, internal bodily searches for the collection of biometric data. So whether that’s DNA or saliva testing, it allows for the use of force, but it doesn’t allow for the challenge that comes with judicial monitoring. So when there is time and we can see a vessel approaching, when we’ve had information from Interpol and we’re about to disembark and leave our shores and go over to a vessel—and there is ample time because these aren’t necessarily fast-moving vessels—we can actually require our enforcement officers to show reasonable cause for belief that a crime is happening, as we require New Zealand police to do, before they go ahead, use force, and collect internal bodily materials, for example. If they are at high sea and things materialise quickly, of course there could then be a discretionary warrant and a search power. The New Zealand Law Society, who brought with them not one but two maritime law experts who had actually acted as maritime officers as well—both said that this is something that they would recommend for New Zealand to uphold the rule of law whilst we extend our powers to enforce the rules and to monitor criminal activity at the high sea.

Now, even the Search and Surveillance Act that does allow for search warrants to be issued, in the opinion of the Green Party—a long-standing opinion that we’ve expressed through successive caucuses—goes well beyond what we would expect in its warrantless search powers that don’t actually apply an objective standard and quite often don’t apply a belief standard, which a court would interpret to say that there has to be an objective level of evidential basis for a search to be triggered, but often will come with an opinion-based or a subjective standard.

So the Search and Surveillance Act itself is somewhat problematic, and we have seen an absolute rise in police relying on warrantless search powers since that power has been made available to them, which is understandable. But when you think about the level of prejudice that exists in our criminal justice system, and will exist even at the high seas—we see it in international law, we see it in the way that Interpol surveils those from certain backgrounds, certain nationalities, and certain flagships when we’re talking about ships—we know that there is room for misuse of this type of incredibly broad discretion. So while the intention is good and while we are trying to monitor and apply the law and make the world safer, the way that we do that has to be exemplary, and in that way, this law absolutely fails. So the Green Party and the New Zealand Law Society and the human rights - based framework can’t support the law as it stands. So I don’t commend this bill to the House.

It is my pleasure to give the last speech of this sitting block, and I’ll make sure to keep it relatively short. I am standing on behalf of the ACT Party on the Maritime Powers Bill at the second reading, and I want to acknowledge the hard work of the Foreign Affairs, Defence and Trade Committee.

This bill is set to allow New Zealand law enforcement agencies the power to enforce New Zealand’s criminal law in international waters. Now, New Zealand already has the right under international law to exercise maritime powers in international waters, but the Ministry of Foreign Affairs and Trade, when they were doing background on this bill, said that we don’t currently have adequate maritime powers. There are gaps in how we can enforce New Zealand’s laws in international waters. That limits our ability to actually respond to threats of criminal activity that might be happening in coming to New Zealand or having left from New Zealand. And that’s hugely concerning when it comes to trans-national crime. There is a huge importance, when it comes to drug smuggling, migrant smuggling, wildlife smuggling, or firearms smuggling, that we actually do want to create a healthy, safe community in New Zealand. People do actively bring, or seek to bring, illicit goods to New Zealand, and we need the powers in our domestic laws to be able to stop that and make sure that we have the laws correct. So it’s concerning that there have been gaps in our enforcement.

We have some bespoke laws when it comes to the Fisheries Act and the maritime Act and the Customs and Excise Act, but it doesn’t help when you have cases that fit slightly outside the box. A good example of that is if you have a ship coming to New Zealand and it has illicit drugs, and the drugs get dropped off and the ship then leaves the country and goes back into international waters, currently, you could stop that ship, under our law. But if when boarding that ship, the officials saw illegal firearms that had come into New Zealand’s waters and left again, they would have no power under the current laws to be able to issue a search warrant, again, for that specific purpose.

So it helps to fill some of the gaps when you’re already dealing in international waters with search warrants. And I think that’s really important, because we don’t want people bringing goods into New Zealand and harming our communities. We do actually want to create a safe, healthy environment.

In conclusion, I think our laws should be clear, they should be simple to follow, and we should fix the gaps where we see them, and I note that that’s what the Foreign Affairs, Defence and Trade Committee have sought to do. It helps to have all of these laws in one place rather than in bespoke parts of other laws, and it will help to create safer, healthier communities in New Zealand. Thank you, Madam Speaker.

Members, this debate is interrupted and set down for resumption next sitting day. It’s been a long week with an extending sitting, so I want to thank all of the Chamber staff. I want to thank officials from the Office of the Clerk, and also the Speaker’s office. The House stands adjourned until 2 p.m. on Tuesday, 1 March.

The House adjourned at 4.57 p.m.