Maritime Powers Bill

The question is that Parts 1 to 3, Schedules 1 and 2, and clauses 1and 2 stand part.

I call on the Hon Gerry Brownlee.

💬 Hon Gerry Brownlee: Oh, sorry. You’ve got the Minister first I think.

I call on the Hon Minister Nanaia Mahuta.

I want to thank the honourable member for allowing me to open up the committee stages of the Maritime Powers Bill. Can I just, by way of introduction to the committee stage, acknowledge and thank the select committee for their careful deliberations and also helpful suggestions to amend the bill, the officials in the Parliamentary Counsel Office also in their deliberations. The committee received seven written submissions on the bill from the New Zealand Port Company CEO Group, New Zealand Council for Civil Liberties, the Privacy Commissioner, and the New Zealand Law Society, and three individuals. It’s evident in many of the submissions and the way in which the select committee discussed elements of the bill that they took on board some of those recommendations and went further to ensure that we are achieving the intent and purpose of legislation that can extend enforcement powers into international waters.

When the bill was introduced to the House, it was clearly stated by the Government that there was a need to ensure that there was consistency in the way that our domestic laws were being applied in terms of enforcement powers into the international waters. I had to go over many of the initial comments made by members across the House to ensure that we were addressing many of the concerns that had been raised. Can I say that there was a number of issues that were raised by members in terms of the classes of enforcement officers. I note the member, the spokesperson for foreign affairs in the Opposition, the Hon Gerry Brownlee, raised the issue of whether or not Department of Conservation (DOC) officers should be considered as enforcement officers. But when we think about the range of activities that take place in relation to the trafficking of endangered species and the way in which both the Wildlife Act and also the trafficking of endangered species are undertaken not only on terrestrial spaces but in international waters—the extension of enforcement powers seems to be a natural progression.

However, I see from the range of advice that the committee was provided, there was a clear articulation of the range of powers and the subsequent acts that were being recognised in the bill. And I’m anticipating if there are questions of this area, it will be based on the advice that the select committee received. Also, in relation to the no need for warrants to be issued, this is consistent with the way in which search and seizure surveillance powers continue to exist. But again, that received a thorough, I understand, hearing and discussion in the select committee.

What I wanted to, I guess, assure members—certainly of the Green Party, because their position was well understood prior to the introduction of this bill—is that there was a thorough discussion around warrantless aspects of the enforcement provisions when the Search and Surveillance Bill was being put through the House. I recall, when we debated the Search and Surveillance Act, that this was and continues to remain an issue for the Greens. Again, I note it because it was a matter that was discussed.

Also, can I just say at a practical level—and I have to put my practical hat on, because the proof of the way in which enforcement powers are intended to exist are based on its application. And it would never be the case in international waters that these powers would exist in isolation. So by that I mean is that the range of enforcement officers, Customs officers, the police, DOC rangers and the like, they would be working together and in concert in terms of making a pre-assessment of utilising the powers that are in this particular Act to enable the collection of evidence, to undertake stopping a vessel, searching a vessel, and collecting evidence for the purposes of the prosecution.

The other point I would raise is that I understand that the committee fully exhausted the discussion around the criminal nature of the offence, and that in itself is a high threshold by which to invoke the powers. Again, I thank the committee for their effort and their helpful recommendations to improve the bill.

Can I thank the Minister for beginning a discussion on the issue of who may exercise the powers under this bill. It is the one area that the National Party has some concern about. It won’t stop us supporting the bill through the balance of its House stages but I think, given that courts these days will often derive some of their determinations around the law from what is said in Parliament, then I think there needs to be a greater articulation by the Minister of exactly what the limits are on the powers of non-sworn officers of the Crown—in other words, on Customs officers, on the Department of Conservation (DOC) rangers, and any others who might be included in that body of enforcement officers that the broad term “enforcement officer” is used for here in the bill.

While we would have some concern about the power being extended to people who are outside of the usual range of what we might consider policing, just imagine if one of those officers did engage in what might be an arrest situation, something that leads to a charge being laid, but a question was raised about the jurisdictional rights of that officer to undertake the enforcement they had. Would that be a good thing or not? It would be a bad thing in my opinion, so I think the Minister needs to articulate a little bit further exactly what the constraints are and what the extensions are of powers that will be or could be undertaken by those enforcement officers.

I’d say it’s also a little bit odd, I think, that DOC officers are considered to be—or DOC rangers can be considered as having these powers when, in fact, it would be expected that, firstly, the surveillance system in New Zealand would have identified a ship that might be engaged in some kind of criminal activity or might be the harbinger of criminal activity and therefore when a pursuit took place that there would be appropriately capable police on board regardless of whether there was Defence involved. But then the reality for New Zealand is that in a pursuit like that Defence will always be involved. So I don’t quite understand why there needs to be the extension to DOC officers, to DOC rangers, as proposed in the bill. I have to say that, notwithstanding the excellent work done by the Ministry of Foreign Affairs and Trade lawyers, what has been provided to us was more about the fact of what might happen rather than a specific reason for it.

So with those comments, I’d ask the Minister to just expand for the Hansard record, for a place that the court might refer to should there be a question about jurisdictional rights for enforcement officers, to get some clear steer on what certainly the Government believes is the situation but also to elaborate or to make it clear exactly what the Parliament is going to express at the point that the third reading of this bill passes. I’ll leave it for the Minister to comment there. I have a number of other questions that I’d like to put to the Minister.

Thank you for the helpful, I guess, clarification of the extent of the concern. Can I firstly make a comment in relation to the role of the New Zealand Defence Force—more than likely, highly probable, highly likely that it will be a defence vessel that will be undertaking the activity to pursue an identified vessel that will be of interest for a specific set of reasons.

In terms of the ongoing comments around the suitability of Department of Conservation (DOC) rangers, I think we have to keep in mind that the relevant expertise of each class of enforcement officers is a high consideration. So I am aware that the select committee received a table of advice setting out the comparable powers of each class of enforcement officers and what they are able to do. So, for example, DOC warranted officers and rangers have comparable powers under the Wildlife Act 1953, which enabled them to stop any vehicle or boat, enter or board it, search it, seize evidential material, detain a person, and arrest a person. Similarly, DOC endangered species officers, who have powers under the Trade in Endangered Species Act 1989, have powers to stop a vehicle, which includes a ship, enter or board it, search it, seize evidence, detain a person, and arrest a person. And so it goes through the relevant class of enforcement officers including Customs and the relevant Act, the New Zealand Defence Force and the relevant Act, and, in this case, the Fisheries Act and the Crown Minerals Act, also the Wildlife Act and the Maritime Crimes Act, and also the Police, who have comparable powers under the Search and Surveillance Act. It sets out very clearly the range of Acts that provide those identified enforcement officers with the subsequent powers that they can exercise into national waters.

Can I also go back and say, specifically with regards to DOC rangers and their particular powers, they have expertise in terms of their knowledge of the Wildlife Act and the Trade in Endangered Species Act. And that is as you would expect; they have expertise under those particular Acts. The New Zealand Police Force have expertise under their subsequent Acts, and so do Customs officers. So, for that reason, it’s going to be important that they act—as I said previously—in concert to undertake a pre-assessment of the nature of their concern with a particular vessel; it could be in relation to human trafficking, wildlife and endangered species trafficking, drug trafficking. But in concert and as a collective, they will undertake an assessment and, then, collectively exercise the full level of responsibilities that they have as enforcement officers.

Well, look, that’s sort of helpful. But can I ask a very specific question, then: are the powers of people, other than the New Zealand Police, limited to the Act under which they are able to already exercise enforcement powers?

Thank you very much, Madam Chair. I’ve been enjoying the discussion between Minister Nanaia Mahuta and the Hon Gerry Brownlee. I think, as Mr Brownlee has articulated, this is a really key area for the committee itself to understand, with the implication, of course, that courts might be called upon in the future—and, in fact, inevitably will be—to consider the question. So to have some clarity provided through this process would I think be helpful indeed.

I note that the Minister is diligently taking some advice on that particular exchange, so I’ll take the opportunity of raising perhaps a couple of separate questions. They might be less important, but nevertheless they’re important to me. So I’ll just put them out into the ether in any case, and we’ll see what we get back, which may or may not be, of course, tonight.

My question was actually in regard to the role that the Attorney-General will play in relation to possible prosecutions. I note that the Attorney-General himself—the current version thereof—is in the Chamber, and I prefaced my remarks by saying, of course, that I don’t cast aspersions on any person who holds that office. The intention merely is to understand the way that those powers would be exercised, and particularly that kind of chicken-and-egg scenario that we’ve got whereby, as the select committee articulated, the Attorney-General’s consent is needed for proceedings for trial and punishment of a person—to use their phrase—but nevertheless certain actions leading up to that can take place in the meantime and perhaps in anticipation of such consent, notwithstanding that such consent hadn’t at that time been sought, let alone given. I presume that the reason for that is because it might be out on the high seas or in these various areas in the water delineated by the exclusive economic zone, the territorial sea, and so forth, and that it’s not practical to reach out to the Attorney-General and gain his or her—as the case may be—consent to those proceedings.

But I do think it is an important question, given that as the Minister herself has acknowledged, search and seizure can take place without a warrant. Of course, again, it wouldn’t be reasonable for me to suggest that the ordinary course of events on New Zealand land would take place such as a justice of the peace, or a judge or the like, would give consent, for example, to a search. So, again, I don’t wish to make comments that could be regarded as a suggestion that’s not practicable on the waters, but nevertheless I did think it would be helpful to have some explanation from the Minister on that.

I note that she appears ready, willing, and able to comment perhaps in response to the exchange that she and the Hon Gerry Brownlee have had, so to allow time for that this evening, I’ll hold fire on any further questions or comments I might have, Madam Chair.

I’m sure the Minister will respond to questions asked in a few minutes. Look, the other thing that is a little bit interesting is the issue of permission from flag States. So I’d like the Minister just to explain how that regime works, because, as you read the bill, we are saying that we want to have powers to prevent or to take enforcement action against anybody committing any illegal activity on a ship inside New Zealand’s territorial seas, and then for any event that occurs in that space to extend the jurisdiction out into international waters, as well. The question then becomes: is the bill contradicting itself by requiring that the permission to take an action against anybody on a ship requires the permission of the flag State for the vessel? Now, if the reading of this legislation actually gives a contraposition, then I’d like the Minister to make that clear if that’s at all possible.

The other question that I think has just been answered—or, really, perhaps not has been answered but will be answered by the Minister in relation to the continuation of powers, which my colleague just raised, which is the issue of: where does the stop and start occur on all of this?

The bill itself has been amended, and it would be good for the Minister to just explain exactly how that amendment gives effect to the proposal which means that if a pursuit is started in international waters or inside New Zealand’s territorial sea, then the powers of arrest, containment, etc., exist right up to the time that it is berthed inside a New Zealand port. The question is: what happens at that point? Are those charges then, effectively, laid before the courts in New Zealand? Who actually makes the arrest? Is the arrest made by the officer in the first place? Is there a handover to Corrections or is there a handover to the New Zealand Police? Exactly how that works is a question that it would be useful for the Minister to answer. As I’ve said before, this is a bill that is necessary. New Zealand is an island nation. We are surrounded by one of the biggest territorial seas of any nation in the world. For us to have this sort of provision is important.

The other thing that would be useful for the Minister to explain would be the reference to aircraft inside a maritime bill. It might be very obvious to some of us who’ve been through that. We all know that the use of drones, etc., is going to become more and more prominent as time goes on, but the explanation about how it fits into a maritime bill would also be quite a useful thing, I think, for the public record as we move forward.

The time has come for me to report progress.

House resumed.