Maritime Powers Bill

Thank you, Mr Speaker. It’s a pleasure to take a call on the Maritime Powers Bill. New Zealand is an island nation with 15,000 kilometres of coastline and one of the largest exclusive economic zones in the world, so keeping our maritime environment secure is a critical component of our national security and prosperity. Trades such as trafficking of drugs, arms, wildlife, and humans compromises New Zealand’s safety, security, economy, environment, and territorial integrity. Therefore, there is a critical need for New Zealand to be able to respond to these increasing serious maritime threats in international waters and this Maritime Powers Bill just does that.

The bill provides law enforcement agencies—who are defined as police constables, customs officers, members of the armed forces, the Department of Conservation rangers, and endangered species officers—with power to enforce elements of New Zealand’s criminal law in international waters where they have reasonable grounds to suspect that serious offending is taking place on boats. It also provides powers to respond to a range of offending in international waters.

The bill does quite a few things. It allows New Zealand to respond to criminal activities in the oceans and seas beyond New Zealand, allows for research and surveillance based on the powers in the Search and Surveillance Act 2012. It also allows enforcing detention and arrest powers.

We’ve heard some concerns about the bill—that it might be at odds with the New Zealand Bill of Rights and other international conventions on seas and oceans. But this bill is consistent with our rights and obligations under international law, especially the United Nations Convention on the Law of the Sea and international human rights obligations. So if it passes tonight, it will enhance the wellbeing of our communities and advance our security and shared prosperity.

I’d like to thank the Foreign Affairs, Defence and Trade Committee for their work. They have received about seven submissions, including from the Privacy Commissioner, the New Zealand Law Society, and the New Zealand Council for Civil Liberties. The New Zealand Law Society and the New Zealand Council for Civil Liberties recommended the bill be amended to make sure the Bill of Rights would apply to the powers exercised under the Maritime Powers Act. The committee reviewed this recommendation and was advised that the Bill of Rights already applied to the powers under this bill and does not need to be expressly set in the bill. So this has addressed already some of the concerns that had been raised about this bill.

As noted in our manifesto, when it comes to our independent foreign policy Labour Party values include a focus on upholding the international rule of law and this bill contributes towards this. We must be honest that with globalisation and increasing interconnectedness, and while people and goods move freely from place to place, our law enforcement agencies need tools to be able to do their job. If they can’t, if they don’t have enough tools, then New Zealand will be subjected to criminal offences. For our shores to be kept safe our officers must be equipped well and this bill is going to do just that. This piece of legislation is going to help to do that and I commend it to the House.

The next call is a split call. I call Todd McClay.

Mr, Speaker, thank you so much, I’d just prepared a 10-minute speech. I’ll read it twice as fast as I normally do, perhaps.

ASSISTANT SPEAKER (Ian McKelvie): Ha, ha! You’re a great reader.

It is a pleasure to speak in this debate. It’s important work that is about to be done when this is finally passed into law. It’s a shame the Government hasn’t shown more urgency in this as they have so many other things that they’ve said are important but in the end the New Zealand public is not quite as sure that they are as urgent as they say.

The reason for that is it is about New Zealand enforcing our own laws internationally—or this Parliament makes a decision, it passes a law as to what we think is legal and what’s appropriate. We will now be able to enforce this, in as far as New Zealand registered ships are concerned, anywhere in the world, or ships that are not flagged under New Zealand within an area that we have an extraterritorial jurisdiction—which largely means a few parts of the world and our exclusive economic zone (EEZ).

The reason I say it’s a shame they haven’t shown more urgency in doing this is right now, in our EEZ, there is bound to be a boat there, a ship on its way, on its way out, nearby that actually we would want our services to look at if they suspect or believe that they are breaking international law that is in New Zealand law. But the reason I point that out, in as far as the Government not showing urgency here, is there’s another situation that is comparable to this that’s going on at the moment in the Ukraine and as far as Russia is concerned. And there’s another area where decisions by New Zealand, perhaps this Parliament, are not able to be enforced overseas, just as in this legislation they are equally not, and the reason for that is that this Government has dragged its feet and even today said it won’t pass an autonomous sanctions bill. So whilst we’re here debating this about what could happen on the high seas or, you know, under a New Zealand - flagged ship or, let’s say, a Russian ship in an area of the world where New Zealand has extraterritorial jurisdiction, when this law is passed we can enforce New Zealand law in as far as that Russian ship is concerned. So it’s a good thing that we’re passing this. We should be doing it faster.

What’s not a good thing is that the Government today drags its feet and says it won’t pass an autonomous sanctions bill under urgency, although we are debating this piece of legislation today; instead of this today, we should be debating and passing an autonomous sanctions bill so that tomorrow, if we did so in urgency, the Government could put in place sanctions against Russia for the actions they have taken in the Ukraine, where today people are dying defending their country. We could put in place sanctions as the US has, as the United Kingdom has, as all European Union countries have, as Australia has. But no; we’re here passing this legislation. And if it follows through the normal process, at the end of this three-week sitting block it will enter into law; that’s a good thing. And lo and behold if one of those Russian fishing vessels happens to wander down here, we’re going to send out our military or—what does it say here?—an “endangered species officer” or “Department of Conservation ranger” to grab them. But in as far as three weeks from now, here’s an ironclad guarantee: this Government won’t have passed sanctions on Russia when, actually, I believe there is a majority in this House to do so today, to stand with our allies around the world and to make a very, very strong statement.

The Prime Minister put out a press release; that’s a good thing. I don’t think Russia read it and if they did, it didn’t alter their behaviour. But as the rest of the world is taking a position to sanction them, New Zealand should be able to also, rather than only being able to if the UN allows us to—we should be making those decisions here in this House and in New Zealand. The legislation is a good thing—

💬 Hon Andrew Little: Why didn’t you pass the bill?

Well, the member said “Well, you’ve got to pass the bill.” There’s a lot of noise over there, but they were pretty quiet when it came to the Prime Minister’s statement about the Ukraine and not being able to pass sanctions, because she wasn’t clear about this. But this legislation will go through over the next three weeks and they’ll rush out there and say, “Ah ha! If one of these Russian vessels happens to wander down to New Zealand waters, we’ll grab it.” But that will do nothing for the people of the Ukraine.

We do support this legislation. We do think there are some changes needed. I mentioned a couple of areas there—we think probably some of the authority of powers given to Department of Conservation rangers or endangered species officers will be the same as the police or Customs or the military. I think that probably goes too far. There’s another way to do that. The Government did say in committee that actually those powers would be used very, very cautiously. Actually, there is not such a thing. Once power is given, people use it. And in this case, I don’t think we’ve got it right. So we should talk about that more in committee stage and look to fix it. We will be supporting this and passing it. But we would support and pass an autonomous sanctions bill in urgency today if the Government actually could show urgency in areas that matter.

The next call is a remote call—five minutes.

I don’t accept that this bill has anything to do with the Ukraine, but I do want to extend my worries and thoughts to the Ukrainian people today. Having said that, I would like to address this bill, which is one that absolutely needs to be passed.

This is the Maritime Powers Bill and it will mean that we are able to extend New Zealand law to New Zealand flag ships internationally. We’ll also be able to extend New Zealand law to foreign-flagged ships that are in our economic zone, and that zone is actually really big. It’s one of the largest economic zones in the world, so it’s very important that we are able to do that. What this bill does is that it actually builds on the Search and Surveillance Act, the Customs and Excise Act, the Fisheries Act, and it uses the same kinds of powers—in our extraterritorial waters and internationally—on our own ships. So it allows us to take what we’ve already learnt about what works and put it in those settings. It means that if people are exploiting labour in those waters, if they are conducting drug deals, if they are pirates, we are able to do something about that urgently. I was thinking about the kind of people who do that work. Those kinds of people are really in a very vulnerable situation, the police and the defence forces and the customs officers, and even the Department of Conservation, when they are carrying out those activities they can’t rely on the backup that you would rely on if you were on land. They are in a dangerous situation. So it’s incredibly important that we support them fully. This law will do that.

What it does allow is it allows a search without warrant. There were some issues raised about that, but it does have a tempering of that because the warrant, if you do a search without warrant, under the fact, you must actually report that to the commissioner of police. So there’s oversight, because this Government is very mindful of the rights of people and making sure that the response we have is proportionate, but also that we are watching these things. So we are making sure that there is no exploitation of them. Now, our Minister, Nanaia Mahuta, talked about the importance of this in a changing world because we are—as unfortunately we know this week—in a very changing world. We need those sorts of powers that make our territories secure and make it something where we know that we are going to be able to actually respond in a way that is appropriate in an ever changing situation. We’re going to rely much more than we ever did on the sea for our supply, and it’s so important that those supply ships can come in and we know exactly where we stand and those people policing those situations have our backup.

I wanted to just talk about the hazards that are in that work because it is one of those things that’s very, very real. The hazards are actually that people would have guns on those boats. They would be carrying out acts without any sense of the law of New Zealand. And that would happen. So these people who are going on to those boats really do step into an incredibly vulnerable situation. So this is a situation where people can go in if there’s reasonable grounds to suspect and if there is a reasonable belief to suspect, but they have to do so in terms of a serious offence. So it’s not something which they would do lightly, and that’s been built into the Act too.

Finally, this is consistent with the UN Convention on the Law of the Sea, and that’s really important because I think we’ve all realised over the last few days—perhaps been reminded—that it’s incredibly important that we actually work as a community. And so the UN conventions are incredibly important, and I think we’re starting to work much more as a community and see that it’s important that we actually work as a group and in a unified way when it comes to the areas that join us. That kind of mentality is something that I welcome in a post-pandemic world where we actually very much need to rely on our community of ethics and laws. So thank you. I commend this bill to the House.

Thank you, Madam Speaker, for this opportunity to contribute on this, the Maritime Powers Bill. When I last spoke on this it was about the importance of the proposed legislation on drug trafficking and being able to search and seize drugs in international waters off our coast prior to them reaching our shores. I spoke about the debacle at Ninety Mile Beach in 2016, which resulted in what was then New Zealand’s biggest ever meth haul, and it potentially could have been stopped sooner with the right surveillance and the right laws.

Today I’d like to speak about something else. I sit on the Foreign Affairs, Defence and Trade Committee, which is considering this bill, and we’re also inquiring into illegal unreported and unregulated fishing, and it’s something that several others have mentioned in this debate. We’ve received many submissions on this, and time and time again we’ve heard compelling evidence from submitters about the need for greater enforcement powers for Department of Conservation officers. Sea Shepherd has done a lot of due diligence in this space. They’ve worked with lots of Governments all over the world as vigilantes of the sea, and in their oral submission they stress the need for greater enforcement powers for New Zealand Customs officers, and it was something echoed by many others. It’s because the problem at sea is that it’s very easy to throw away the evidence of illegal activity and throw it overboard in the case of fishing or, say, weapons smuggling. Currently, Customs officers don’t have the power to be able to stop and search boats suspected of illegal activity, and that goes for fishing, for drugs, for human trafficking, and so on.

So, in short, New Zealand is in some cases unable to act or disrupt criminal activity before it reaches our shores. Our maritime powers simply don’t align with our criminal law jurisdiction or our rights and obligations in international law, and that’s why sorting this out has actually been a priority for Labour in our election manifesto.

This bill extends powers to stop, to search, to detain, and to arrest, and these powers already exist in domestic law and the bill simply extends these powers into international waters. As other speakers have mentioned, there were seven written submissions and one oral one—a really helpful one from the New Zealand Law Society, and I’d like to thank them for that. They submitted on three areas, including the application of the New Zealand Bill of Rights Act and human rights, and they basically said that these Acts apply and that an explicit reference was not necessary. In fact, they said it would perhaps be confusing if it was to be included because it would put into question whether other legislation would also need explicit New Zealand Bill of Rights Act references.

The second element that they mentioned was about powers exercisable without a warrant, and there has been a lot of discussion on this. The short answer is that these powers already exist and they exist in the same way. Without this law there is uncertainty relating to international law and vessels, and, as I mentioned before, the law deals with the mischief of evidence being thrown overboard, which is very real.

The Law Society also submitted about futureproofing for technological developments, and as a committee we did acknowledge there will be developments, and I’m thinking here of developments around, say, autonomous weapons—the work Minister Twyford is doing. There will always be technological developments, but that issue can’t be resolved here because it really involves all maritime law—but we will keep an eye on it.

The law is not just needed to prevent illegal and unrecorded fishing. It also is needed, as my colleague Ibrahim Omer has said this evening, for weapons trading—for example, firearms. The tightening of New Zealand’s laws could lead to more smuggling through coastal borders. It relates to immigration. It relates to wildlife. The law supports important conservation and biosecurity work done under the Wildlife Act, and it also is needed to address the geopolitical risks, and we’ve seen those increase recently with the impact of COVID and with climate change. That’s brought the Pacific to the fore, and with the current terrible events unfolding in Ukraine, it’s not difficult to see how we might be wanting to ensure our own corner of the world is as secure as it can be.

Another problem that this bill addresses is really what’s been described as a good problem, which is our large coastline: it’s 15,000 kilometres, in fact. A beautiful coastline with lots of pristine beaches. And also another good problem is that we live in one of the world’s largest exclusive economic zones. So the law is also timely. We’re living in a changing world—we have a growing marine economy; we’ve got a domestic market that is increasingly reliant on marine connectivity in relation to our supply chains, our shipping routes, and, again, that’s certainly come to the fore during COVID. We’ve seen the importance of shipping for importing and exporting and we do need it, as I said, to protect our national interests in the Pacific and in the Southern Ocean. This changing world that I’m referring to in relation to maritime areas was all recognised in the 2018 Strategic Defence Policy Statement, and that statement said that “Maritime security is fundamental to New Zealand’s national security.” It looked at climate change; it referred to transnational crime; to resource competition and the geopolitics that go with that; and to irregular migration.

So this legislation supports the maritime strategy. It protects our economic interests, our cultural interests, and our environmental interests now and for future generations. What it does—and others have spoken about it—is it gives power to enforcement officers to respond to a range of criminal offending in international waters. That includes “offences that take place on board a New Zealand - flagged vessel in international waters; and offences that take place on board a foreign-flagged vessel or stateless vessel in international waters”—and that’s vessels where—“New Zealand has extraterritorial jurisdiction; and situations where an alleged offender or evidence of criminal offending is located on a New Zealand, foreign, or stateless vessel in international waters.” It does this in a manner that is consistent with New Zealand’s rights and obligations under international law—so our human rights obligations, for example, the United Nations Convention on the Law of the Sea; or safeguards in the Search and Surveillance Act 2012. What it doesn’t include is foreign ships outside those situations, unless there is permission from a foreign State, and unless they are in certain categories of offences, such as slavery or piracy or the continuous pursuit after contravening a New Zealand law—those are all covered.

So the benefits, as have been traversed by my colleagues, are that this law gives parity to agencies around enforcement powers for police, the New Zealand Defence Force, Customs, and the Department of Conservation, and it essentially puts those agencies under one regime. It counters transnational organised crime. It allows prosecution for criminal acts against our laws when the act is done outside New Zealand.

In summary, our maritime laws do need updating. We need to protect the 15,000 kilometres of beautiful coastline that we have and our interests from organised crime, security threats, and wildlife threats. This piece of legislation aligns with international law and human rights. It’s a strategic approach. It has long-term benefits and it shows the international and intergenerational approach of our foreign affairs Minister Nanaia Mahuta.

I am personally invested in this legislation. I support all legislation that reduces the incidence of methamphetamine on our shores. I worry about the dangers of human trafficking, and this legislation deals with that. It has been through a full select committee process, and it’s a real pleasure to commend it to the House.

Thank you very much, Madam Speaker. As the member who has just resumed her virtual seat has said, it is a pleasure to contribute to the process of passing this legislation. It’s a worthwhile endeavour and, as far as I can tell, it’s supported by all parties across the House. National’s indicated, of course, already that we do support the Maritime Powers Bill at this, the second reading.

So, I haven’t had much to do with the particular bill, so I’m standing on the shoulders of giants in the sense that I’ve read the Foreign Affairs, Defence and Trade Committee report and, by doing so, had a bit of a flavour of some of the submissions and had the benefit of the work that they’ve done. So, passing off their homework as my own, I’m going to copy that and pretend that my points are original in the traditional way. But actually, I did genuinely have some reactions of my own to the legislation as I was reading it, so I’ve compared notes with the select committee report, and indeed the bill itself as it now sits, and the legislative statement. And I think it’s pretty clear what we’ve got is a bill that does cover some pretty important gaps. That’s what it sets out to do—not actually create many new offences, if any, so much as clarify powers that are existing and extend them in a geographical sense. So not extending jurisdiction in the sense of any new kinds of offending being captured, but extending jurisdiction in the way of the reach of New Zealand’s sovereign power, even out into international waters, which is sort of an interesting concept in itself.

Taking a step back, the obligations that allow New Zealand to exercise its authority—and indeed as obligations New Zealand is required to exercise this authority in some senses—to be able to enforce those laws actually makes them meaningful. If New Zealand—and indeed other nations, in an equivalent way—weren’t able to enforce the laws, then those laws would not be meaningful and, of course, the high seas could be the Wild West, if you’ll excuse the mixed metaphor. So it’s explicitly to try and make consistent with New Zealand’s international obligations under, for example, UNCLOS—the UN Convention on the Law of the Sea. I’m glad I remembered that acronym—every now and then it’s possible to start one, isn’t it, and get a couple of letters in and can tail off if you’re not careful. But, anyway, I don’t think I’ve embarrassed myself on this occasion. So that’s sort of the underlying purpose and rationale of this legislation. So it’s domestic law, but giving effect to and consistent with international law. And doing so not only in New Zealand domestic waters—where actually we probably already have these powers—but doing that in international waters too. So it’s a pretty big deal. It’s a big deal physically—it’s a huge area.

I note that the legislative statement calls New Zealand “an island nation with extensive maritime domain.” Of course, that’s a perfectly orthodox and reasonable way to characterise New Zealand, another way of thinking of our country, though, is we could say that we are a really large nation of which most of our territory is water. So, if we thought about it in that way, we have a huge amount of real estate—or territory—over which we are sovereign, and that might sound very much expressed in the language of—

💬 Greg O’Connor: Talk about the navy.

—having rights but also responsibilities attached as well. I’m being encouraged, I think, by Mr Greg O’Connor, to talk about the navy. And I don’t usually require too much encouragement on that, but the only subject on which I can be more reliably depended upon to fill 10 minutes of a debate is the law. And this is at the intersection of law and maritime matters, so I’m very much in my element, Madam Speaker, and I can only hope that you’re enjoying my contribution as much as I am, but I doubt it.

ASSISTANT SPEAKER (Hon Jacqui Dean): I’m in love!

Anyway, so the idea is for the New Zealand law to be extended. The long arm of the law needs to be pretty long if we’re thinking about an exclusive economic zone as some 200 nautical miles. That’s, of course, beyond that initial realm, so to speak, of 12 nautical miles—being the territorial sovereignty, so to speak.

And then, further out, of course, you’ve got international waters, which are exactly as they sound. And if we think about international waters being the waters inter, or between, the nations, but thinking about trans-national crime, the things that could take place between different countries—such serious matters as trafficking of humans, drugs, arms, and wildlife—then it’s, of course, pretty obvious pretty quickly that we’re talking about pretty serious stuff. And the enforcement officers that the legislation empowers are pretty wide in their range, and that indicates a wide range of different interests and ideals that we have out on the high seas.

So we’ve got, variously, constables, I presume in the sort of New Zealand standard police kind of meaning of the word—and I look over to Mr O’Connor, this is a subject with which he is well versed—so constables, as well as Customs officers, members of the armed forces, Department of Conservation rangers, warranted officers, and endangered species officers. Endangered species, of course, important to protect—I’m thinking birds, sea life, and of course Labour MPs: all endangered species. So we have, obviously on a more serious note, some pretty serious powers. The select committee turned its mind to the ones that could—in fact, do—breach human rights in a way, but in a way that they’ve obviously decided ultimately is reasonable. So we’ve got warrantless searches, so searches and, I suppose—following that—seizures, potentially of vessels without a search warrant. The practical dimension, of course, of boarding at sea—an opposed boarding, so to speak; one in which the boarders are not welcomed, in fact, may be actively repelled—is that it’s pretty difficult to get hold of a justice of the peace or a judge to provide a search warrant at short notice in “Sea State Nine”.

So, those matters were thrashed out—I think, pretty well—by the select committee. I can see, reading between the lines—and, in fact, the very words of their report back—they did grapple with that question. A previous contributor, and it might have been Helen White, mentioned that the New Zealand Law Society contributed—in fact, it might have been Ingrid Leary. Apologies to either or both of those if I’ve misidentified them, but in any case obviously these were important matters that the select committee considered deeply. But I also think they added some value in some other ways that may be worth highlighting in my remaining time.

One is the idea that these powers are given—for example, to New Zealand - flagged vessels in international waters or indeed to offences that take place on a foreign-flagged vessel in international waters but for which we’ve got extraterritorial jurisdiction. And then the idea that at the point that they come into New Zealand’s more standard sphere of influence, that the powers would actually somehow go away, and that’s the last thing we would want, of course, is for the certainty that this law is trying to provide that’s given to the Customs or the navy or other law enforcement agency, to actually disappear at the point that they are getting closer to shore. Actually, the closer they get in a way you would think that the stronger New Zealand’s influence and ability to detain and control would be. So the select committee in its wisdom—and I do mean that genuinely—recommended amending clause 33 to state explicitly that the powers may continue to be exercised in New Zealand’s territorial seas, internal waters, in any port in New Zealand, or at any place where a ship reaches land, even though that exercise of power under the legislation had actually started considerably further out. So I think that’s a really useful little confirmation there. You don’t want to be having these arguments out at sea. I don’t know how technical the legal arguments would be and how much it would be more a matter of force, but of course it’s important to have a proper legal basis for these things, which is of course the very basis for us being here tonight.

So my final comment, again in the spirit of commending the select committee’s careful consideration, is that they’ve gone to pains to make sure that this concept of a vessel being pursued without interruption reflects the international law. So that unclosed convention, article 111—Nelson’s number of course: one eye, one arm, etc. So that uses the same language as in that international instrument as in this law, in clause 6. And they’ve recommended the insertion of another clause to make it clear that if reasonable efforts have been made by the enforcement officer to communicate requirements to stop, that basically they can go ahead as though that had been received and acknowledged, which I think is probably fair enough. So anyway, good bill, supported across the House, including by National, and, for what it’s worth, by me. Thank you, Madam Speaker.