Maritime Powers Bill

When we last considered this bill, leave was given for all provisions to be taken as one question. Therefore, the question is that Parts 1 to 3, Schedules 1 and 2, and clauses 1 and 2 stand part.

When we concluded last night, there were three questions that we hoped that the Minister would be prepared to answer. If you give me a moment, Madam Chair, I’ll just find through here what those are and restate them so the Minister knows what they are.

The first is, will non-police personnel be restricted in the exercise of enforcement powers provided in the primary legislation that provides the limited enforcement powers they have? In other words, will non-police staff be restricted in what they are able to do according to the Act that empowers them in the first place? So that’s wildlife officers, rangers—I’m not sure where defence would fit in that, but the Minister might like to reflect on that.

The second is, will the enforcement officers in all cases have power to arrest but no power to execute a warrant? Clause 25A seems to refer to a “constable”, and of course the definitions make it clear that that’s a constable in relation to the Police Act. So I’m just wanting to know what exactly the status for those people are.

Third question is, why does the agreement of the flag States—it’s a fairly important question. Why does the agreement of the flag State for any vessel that might be subject to surveillance, subject to pursuit, subject to boarding, have to be sought from the flag State before those actions can be undertaken—particularly if it’s likely to be undertaken because it’s believed that the particular vessel has been party to some transgression of either New Zealand or international law?

Those are three questions that we would have to ask. So I said before, the National Party is supporting the bill, but we do have concerns about the range of powers being conferred upon a range of different persons known as enforcement officers, who sit outside the normal policing-type enforcement that we understand in New Zealand.

In relation to the question, so we did make a note of the ones that the member that’s just spoken identified, as well as other questions. So I’ll go through and respond to them.

In relation to the existing powers of enforcement officers, the bill confers powers to the Police, Customs, New Zealand Defence Force, along with the Department of Conservation, where an offence at issue is within their jurisdiction. Again, these powers are comparable under existing legislation.

However, in terms of the limitation, I note that the bill does not confer the power to carry weapons to all enforcement officers. It’s only the police and the New Zealand Defence Force that are permitted to carry weapons. So I think that is the exception where there is an extension for a specific purpose of the existing powers.

In relation to the flag State consent regime, pursuant to international law, the consent of the flag State is required to exercise powers in relation to foreign vessels except in certain limited situations. This is reflected in clause 12 of the bill, which also sets out the limited situations where, in accordance with international law, flag State consent is not required to exercise powers. This includes where a foreign vessel is engaged in piracy or slavery.

Clause 37 of the bill sets out the process for obtaining flag State consent. It provides that the Secretary of Foreign Affairs and Trade is responsible for obtaining consent of the flag State, and this reflects that such requests are typically transacted through diplomatic channels. The Ministry of Foreign Affairs and Trade has experience in both requesting and providing flag State consent to other States.

On the issue of—and this was raised last night by the member—the reference to “aircraft” in the maritime bill. Clause 6 of the bill deals with situations where a foreign vessel commits an offence within New Zealand’s maritime zone and then flees into international waters and New Zealand chooses to pursue it. As recognised by international law, a ship or aircraft can be used to pursue an offending ship in that scenario, and that’s why there is a reference to “aircraft” in the bill.

Then there was a further question in relation to the consenting powers of the Attorney-General. Clause 34 of the bill creates some offences necessary for the functioning of the bill, such as threatening or intentionally obstructing an enforcement officer. In line with New Zealand’s practice to require the Attorney-General’s consent to prosecute extraterritorial offences, clause 36 of the bill provides that the Attorney-General’s consent is required to bring proceedings for these offences.

A technical change was recommended during the select committee phase to clause 36, to make it clear that the Attorney-General’s consent is not required to arrest a person or remand them in custody or on bail. This is important, as it may be necessary to urgently arrest someone and remand them in custody before the Attorney-General’s consent is received if the person is a flight risk or a danger to the public. That technical change is consistent with the approach of existing New Zealand legislation, which is to require the Attorney-General’s consent for proceedings to be brought for extraterritorial offences, but allow powers to be exercised before that consent is received.

Thanks, Madam Chair. It’s a quick question to follow up on, basically, the consent of a foreign power, which absolutely makes sense. I don’t think the Minister would be wanting to ride roughshod. I’m not going to go into the particulars; I don’t think that would be the correct thing to do. But I know, under the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Act, to do with a foreign ship in the Ross Sea which we wanted to interdict, which I believe the foreign State eventually did not want to be involved with the prosecution of what that ship was involved with—in other words, New Zealand and others knew what the ship was up to, pursued a prosecution. The flag State, the foreign State, involved—and maybe the officials will know which country I’m referring to—decided not to pursue any action or prosecution. I want to be clear: that’s to do with CCAMLR; that’s to do with a fishery. But I would like to extrapolate that into this law. If a foreign State who does not wish to follow the rules chooses not to give consent, does she see a problem with that? In other words, are we not going to be able to exercise our sovereign right through this bill because another nation is not going to follow the rules of law?

Just while the Minister takes advice on that, can I just back up what my colleague has been saying. This is a bill that is necessary for New Zealand, given that we have such a huge territorial sea ourselves and that we are, beyond that, surrounded by international waters. It’s interesting that at the moment you’re looking at a conflict in Europe where a very large State that does have interests in the Pacific has decided to not follow the international rules of law to work simply outside what has been a rules-based system for the last 70-odd years.

So the question does arise around this: are we in fact enacting legislation that will enable a rogue State, effectively, to get away with whatever they want to? It’s almost like a catch-22 situation. So on one hand we want to have legislation that allows us to intercept and to make arrests and to make confiscations of vessels etc., where they have been engaged in either illegal fishing, illegal transport of persons, slavery, effectively, and yet we could be in a situation where our own law says that because the offending country doesn’t agree with or actually give an acquiescence to that particular action, we’re hamstrung. So it’s a very reasonable question that’s being asked, and, of course, we know that we live in a volatile world at the moment. We’re seeing it all the time. We know also that you’ve got various arrangements being made by other large countries about their reengagement in the Pacific, particularly our part of the world, for many of these reasons. So we just need to be clear about what the legislation actually says.

Oh, I was going to give Minister Nanaia Mahuta more time, but also just to acknowledge that the honourable member who has just taken his seat, Gerry Brownlee, had far better articulated my question than I had myself.

Thank you, Madam Chair. Just in relation to the helpful clarification of the question, it is correct, I guess, to surmise that there is the potential for that situation to occur. Given that we respect the sovereign rights of other States and it is a fundamental rule under United Nations Convention on the Law of the Sea, if they didn’t agree—that would be a very interesting scenario if it did happen—we wouldn’t be able to use the powers under the Act. We would instead be in a situation where would encourage that State to pursue our concerns under their own laws and on our behalf.

The hypothesis is one that is useful to raise; in practice, it would be a peculiar situation. But if it did occur, again, we would use other diplomatic channels to ensure that that State was well aware of our concerns and pursued our concerns under their own laws.

You have no desire to particularly prolong the discussion, but I wonder if the Minister might reflect—or perhaps the officials would speak to the Minister—about why we have got this in the law. If it effectively could become a hamstring for us in some circumstances, hypothetical though they are at the moment, given the volatility of the world currently then it’s not so unreasonable to consider that hypothetical.

So the question is, really, what would have been the situation had we decided not to put that in? If we’d in fact said that if someone is transgressing New Zealand law in an extraterritorial sense, then we are going to have a domestic law that enables us to go after them. That may be something the Minister wants to clarify—I’m sure there are very good reasons, but I just want to make sure that we’re not doing something that the officials consider to be the puritan approach when in fact we want quite a punitive approach to anybody that’s acting illegally inside our territorial sea, or just beyond in international waters, as prescribed in this bill. I’m sure the Minister’s going to take a call in a minute so I’ll leave it there.

One of the things that I really want to ensure is that while the hypothesis is purely valid, the practice of how we articulate the international rule of law and the respect that we have for, for example, the United Nations Convention on the Law of the Sea, becomes quite an important context for considering the way in which we’re framing this legislation, but also the obligations that we would oblige ourselves to in other international waters as well. So we’re trying to ensure that we’re creating the context by which other States are abiding by international law; we’re obligating them to do that. It would be unusual if States did not have the respect for those obligations that we all want to uphold across international waters.

So the member, I guess, has identified that perhaps writing this into law when there is the potential for flagged States not to recognise or not to consent could happen, however that shouldn’t prevent us from writing the law in the strongest way possible to ensure that we’re building the right architecture around international rules and norms that should exist in the high seas in our international waters, in a way where we can protect our sovereign interests and advocate very consistently in other international waters for the same preservation of those similar concerns. So I do not think it would be useful to not have a provision in here around flagged States. I think we’ve just got to continue to stand on our values and principles—which we have always done as a small country—which means upholding international rules and norms that allow us to be a responsible citizen in the international community, in the way that we protect our sovereign interests and advocate consistently across the globe in this area.

Can I say, if I come back to the reason why we’re trying to ensure there is a bill of this nature, is that we do recognise, and the member makes a very good point, we’re in very challenging and complex times. There’s a lot of unusual things that could happen, actually, because of those complexities. But we should always set the standard by which we choose to be measured by. I believe that this maritime bill that’s been long awaited for, it’s an extension of existing enforcement powers within maritime waters to our international waters. It will give enforcement officers broader powers to be able pursue our interests, especially where there are real concerning criminal activities around human trafficking, trading in endangered species and wildlife, the drug trafficking, and the like. It’s my sense that the House would want to see the progression of this bill fairly swiftly.

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

Parts 1 to 3, Schedules 1 and 2, and clauses 1 and 2 agreed to.

Bill to be reported without amendment.

House resumed.

Madam Speaker, the committee has considered the Maritime Powers Bill and reports it without amendments. I move, That the report be adopted.

Motion agreed to.

Report adopted.