Maritime Law Enforcement in New Zealand

Korean Journal of International and Comparative Law 6 (2018) 245–268 brill.com/kjic

Karen N. Scott Professor, University of Canterbury [email protected]

Abstract

An overview of maritime enforcement in New Zealand waters as part of a broader project on maritime enforcement in the Asia Pacific region.

Keywords maritime – enforcement – New Zealand

1 Introduction

New Zealand’s maritime zone, including its continental shelf beyond 200 nautical miles, comprises an area of more than 5.7 million km2 or 21 times the size of terrestrial New Zealand.1 Its coastline, including offshore islands in the Pacific and sub-Antarctic, is around 20,500 km, the 10th longest in the world.2 New Zealand’s maritime domain is extended further by its responsi- bilities in respect of search and rescue over about 30 million km2 of ocean extending from the Equator to the Antarctic.3 New Zealand’s priority in respect

1 Land Information New Zealand, available at http://www.linz.govt.nz/about-linz/what-were -doing/projects/new-zealand-continental-shelf-project/map-continental-shelf. 2 Another five things you probably didn’t know about New Zealand, available at https://www .linz.govt.nz/news/2017-03/another-five-things-you-probably-didn%E2%80%99t-know -about-new-zealand. 3 Rescue Coordination Centre (rccnz), available at https://www.maritimenz.govt.nz/about/ what-we-do/safety-and-response/RCCNZ/#search_area.

© koninklijke brill nv, leiden, 2018 | doi:10.1163/22134484-12340114Downloaded from Brill.com09/25/2021 07:20:08AM via free access 246 Scott of maritime enforcement, as articulated in the 2016 Defence White Paper,4 is monitoring and responding to activities within its exclusive economic zone (eez), Antarctica and the Southern Ocean as well as the Pacific.5 Key threats identified in the 2016 White paper comprise: illegal, unreported and unregu- lated (iuu) fishing within New Zealand’s eez and in the Antarctic and the Pacific; maritime incidents, particularly as cruise-based tourism grows; and border control and organised crime in the Pacific.6 This article will provide an overview of maritime law enforcement in New Zealand, including the overall framework and actors, with particular emphasis on enforcement in respect of maritime security and customs, fishing, safety of shipping and discharges from vessels and environmental protection. It will not provide a detailed analysis of the substantive standards that apply to New Zealand and foreign vessels operating in New Zealand waters as these are addressed elsewhere.7

2 Maritime Enforcement in New Zealand: Framework and Actors

Maritime enforcement at sea is largely (although not exclusively) undertaken by the New Zealand Navy. New Zealand’s small eleven vessel fleet comprises two anzac class frigates (hmnzs Te Kaha, hmnzs Te Mana), three support vessels (hmnzs Canterbury, an amphibious and military sealift vessel, hmnzs Endeavour, a replenishment tanker and hmnzs Manawanui, a diving and mine counter-measures support ship), two offshore and four inshore patrol vessels as well as a fleet of ten super-Seasprite SJ-2G(I) helicopters.8 P-3 Orion surveillance and reconnaissance aircraft are critical in terms of information gathering throughout New Zealand’s maritime domain.9 Responding to its increasing role in the Antarctic, the New Zealand Navy plans to add an ice-strengthened vessel to its existing two offshore patrol vessels, as well as replacing the fleet

4 2016 NZ Defence White Paper, available at: http://www.nzdf.mil.nz/downloads/pdf/public -docs/2016/defence-white-paper-2016.pdf. (Hereinafter, referred to as 2016 NZ Defence White Paper). 5 2016 NZ Defence White Paper, [4.33]. 6 Ibid., [3.22, 3.23, 3.34, 3.35 and 4.3]. 7 For an overview of the standards applicable to foreign and domestic vessels operating in New Zealand waters, see Bevan Marten, Maritime Law in New Zealand (Wellington, Thomson Reuters, 2016), chapter 3; Karen N. Scott, ‘Regulating the Navigation of Foreign Vessels: New Zealand Practice’ in Keyuan, Lee, & McDorman (Eds.) Maritime Cooperation in East Asia (Brill, 2018 forthcoming). 8 Meet the Fleet, available at http://navy.mil.nz/mtf/ 9 2016 NZ Defence White Paper, [5.27].

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access Maritime Law Enforcement in New Zealand 247 tanker with an ice-strengthened fleet tanker.10 A Littoral Operations Support vessel, designed to support operations from the sea onto land is also planned.11 New Zealand Customs currently operates one vessel, Hawk IV although a second vessel, Hawk V, is currently under construction and is due to come into operation in 2018. A small number of onshore vessels are owned and operated by the Ministry of Primary Industries for fisheries/ environmental enforcement purposes. A number of government agencies play a role in maritime enforcement. These comprise the Ministry for Primary Industries (mpi), which is the lead agency in respect of fishing and biosecurity enforcement. Maritime New Zealand was established in 1994 under section 429 of the 1994 Maritime Transport Act, and has primary responsibility for the safety and security of shipping and the protection of the marine environment from ship discharges in New Zealand waters.12 Customs and Excise is the lead agency in respect of customs and immigration matters. The National Maritime Coordination Centre, which was established in 2002, coordinates multi-agency operations in respect of maritime offending that affects New Zealand sovereignty, security, the economy, the environment or any foreign policy interests. The Centre is staffed by civilian and military personnel and although is operationally independent, it is part of, and reports directly to, the New Zealand Customs Service. Agencies that typically co-operate with the Centre include the mpi, Maritime New Zealand, Department of Conservation, Customs and Excise, the New Zealand police and the New Zealand Defence force.13 The Department of Conservation (doc) is the lead agency with respect to enforcement associated with the protection of marine reserves, wildlife and marine mammals. Regional Councils and Harbour Masters play an important role enforcing environmental standards, including vessel discharges, within New Zealand’s territorial sea and cooperate closely with Maritime New Zealand, particularly in the event of serious pollution incidents. More generally, the New Zealand police play an important role in supporting operations related to investigation and arrest in respect of any breach of New Zealand law. Powers relating to maritime enforcement are provided for across a range of statutes on a sectoral basis. In some areas, such as fishing, powers are exclusively provided for in one statute – in this case the 1996 Fisheries Act.

10 Ibid, [5.7]. 11 Ibid, [5.8]. 12 1994 Maritime Transport Act, ss 430 and 431. 13 Controller and Auditor General, Effectiveness of Arrangement for Coordinating Maritime Civilian Patrols (2010) Appendix 2, available at https://www.oag.govt.nz/2010/maritime -patrols/docs/maritime-patrols.pdf.

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In other areas, such as vessel discharges, powers are divided across a number of agencies within several statutes – such as the 1991 Resource Management Act, the 1994 Maritime Transport Act and the 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act – and complex demarca- tion between and coordination of these powers is necessary (see Table One). The powers in question are those typically used in the context of maritime enforcement and range from inspection and vessel boarding (in port and in New Zealand waters) to detention and arrest. Foreign vessels may be excluded from port where they constitute a serious environmental risk – particularly in relation to biofouling – and, where a vessel is deemed a security risk, it can be made the subject of an exclusion zone or expelled from port (see Table 2). New Zealand largely adopts and implements its rights and obligations under international law in respect of maritime enforcement, and it ratified the 1982 United Nations Convention on the Law of the Sea (losc)14 in 1996 and the 1995 UN Fish Stocks Agreement15 in 2001. It has implemented powers relating to the prosecution of unlawful discharges by any vessel on the high seas,16 as well as the provisions relating to boarding and inspection of foreign fishing vessels on the high seas under the 1995 fsa.17 Only New Zealand citizens or residents however, may be prosecuted for fishing offences outside of New Zealand’s jurisdiction, in accordance with current international law. By contrast, any person may be prosecuted for taking marine mammals without a permit within 12 months of entering New Zealand.18 Any vessel however, which is considered to have undermined international conservation measures, may be denied entry to New Zealand ports.19 New Zealand has implemented the terms of the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Navigations (sua Convention)20 and its Protocol,21 including its

14 1982 United Nations Convention on the Law of the Sea (losc), entered into force November 16, 1994, 1833 unts 397. 15 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, entered into force 11 December 2011, 2167 unts 88. 16 1982 losc, Article 218; 1994 Maritime Transport Act, s 224. The consent of the Attorney General is necessary in order to prosecute persons who are not New Zealand citizens or permanent residents. 17 1995 fsa, Article 21; 1996 Fisheries Act ss 113R, 113S, 113T, 113U, 113X. 18 1978 Marine Mammal Protection Act, s 25. 19 1996 Fisheries Act, s 113ZD(2). 20 1988 Convention for the Suppression of Unlawful Acts against the Safety of Navigation, entered into force March 1, 1992, 1678 unts 221. 21 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Platforms Located on the Continental Shelf, entered into force March 1, 1992, 1678 unts 304.

Area of Enforcement Legislation Government Agency

Maritime Security, 1961 Crimes Act New Zealand Defence Force Customs and Illegal 1996 Crown Minerals Act Customs and Excise Immigration 1996 Customs and Excise Act New Zealand Police 1999 Maritime Security Act National Maritime 2004 Maritime Security Act Coordination Centre 2009 Immigration Act Fishing 1996 Fisheries Act Ministry of Primary Industries New Zealand Defence Force Safety of Shipping 1964 Continental Shelf Act Maritime New Zealand/ and Discharges 1991 Resource Management Ministry of Transport from Ships Act Regional Councils 1991 Crown Minerals Act Environmental Protection 1994 Maritime Transport Act Agency 2012 Exclusive Economic New Zealand Defence Force Zone and Continental Shelf (Environmental Effects) Act 2015 Health and Safety Act Protection of the 1953 Wildlife Act Department of Conservation Marine Environment 1971 Reserves Act Ministry of Primary 1978 Marine Mammals Industries Protection Act Maritime New Zealand/ 1991 Resource Management Ministry of Transport Act Regional Councils 1993 Biosecurity Act New Zealand Defence Force 1996 Fisheries Act 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act expansive jurisdictional clauses.22 Notably however, New Zealand has neither ratified nor implemented the 2005 sua Convention,23 which provides for an

22 1988 sua Convention, Article 6; 1991 Maritime Crimes Act, ss 8 and 9. 23 2005 Protocol to the convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, entered into force 28 July 2010, 1678 unts 304.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 250 Scott table 2 Maritime Enforcement Tools

Maritime Enforcement Tool Area of Enforcement

Port Inspection Maritime security; fishing; protection of the marine environment; safety of shipping and discharges from ships; custom and illegal immigration. Search, Seizure and Arrest Maritime security; fishing; protection of the marine environment; safety of shipping and discharges from ships; customs and illegal immigration. Prevention of Entry into Port/Direct to a Maritime security; fishing; protection Designated Area/ Expulsion of the marine environment; safety of from Port shipping and discharges from ships. Direct Intervention and Control of Ship Safety of shipping and discharges from ships. Imposition of Exclusion Zone Maritime Security Around a Ship Use of Reasonable Force Fisheries; customs; protection of the marine environment (including biosecurity) and impliedly authorised by a broad range of powers of intervention in relation to safety of shipping and discharges from ships. expanded range of offences. More generally, New Zealand implements univer- sal jurisdiction in relation to offences such as piracy, slavery, sexual trafficking of people under 18, forced labour, migrant smuggling and people trafficking, although the consent of the Attorney General is necessary for any prosecution.24 In respect of most offences New Zealand legislation permits a right of ‘fresh pursuit’ to be exercised, which is broadly analogous to the international law right of hot pursuit, and permits vessels to be chased and stopped outside of New Zealand waters in respect of offences that took place within New Zealand waters. (see Table 3).

24 1961 Crimes Act, ss 92, 98, 98AA, 98C and 98D.

Activity Enforcement Jurisdiction to Prosecute

Maritime security Customary A range of offences are covered under international law right the 1961 Crimes Act in respect of New to board in respect of Zealand citizens, residents, New Zealand piracy, slavery and ships, Commonwealth ships and British some other offences. subjects. Prosecution of non-nationals requires the consent of the Attorney General. The 2009 Maritime Crimes Act provides for prosecution of certain offences by citizens, permanent residents and any person present in New Zealand (with the permission of the Attorney General). Fishing Boarding powers Powers of prosecution are limited to New under the Zealand vessels/ nationals only. 1996 Fisheries Act consistent with rights under the 1995 UN Fish Stocks Agreement in respect of vessels registered to states party to the 1995 UN Fish Stocks Agreement and/ or the relevant rfmo. The 1996 Fisheries Act also provides for a right of ‘fresh pursuit’ (similar to hot pursuit). Protection of Any person within 12 months of entering marine mammals New Zealand after commission of the offence (1978 Marine Mammals Protection Act).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 252 Scott table 3 Maritime Enforcement beyond New Zealand’s Maritime Zones (cont.)

Activity Enforcement Jurisdiction to Prosecute

Safety of shipping Arguably a customary Any person for an offence outside of and vessel international law right New Zealand waters but the Attorney discharges to intervene when a General must consent to prosecution of vessel is threatening non-citizens/ permanent residents (1994 the coast. Maritime Transport Act).

3 Law Enforcement Practices

3.1 Maritime Security and Customs In contrast to many other jurisdictions in the Asia Pacific, maritime security is less visible as a priority in terms of enforcement compared to fishing and environmental protection in New Zealand. Nevertheless, New Zealand provides for a range of enforcement powers associated with several statutes designed to regulate misconduct in or connected to the maritime environment. The 1961 Crimes Act applies generally to acts and omissions by any person on board New Zealand vessels25 in addition to any person in any location for selected offences including piracy,26 slavery,27 trafficking persons under 18 for sexual exploitation or forced labour,28 smuggling migrants29 and people trafficking.30 The Act provides for the normal powers afforded to police in respect of all vessels located in New Zealand internal waters and all New

25 1961 Crimes Act, s 8. Section 8 refers to ‘Commonwealth’ ships rather than New Zealand ships as a consequence of historical drafting but, in the context of the purpose of the Act, it would be reasonable to interpret ‘Commonwealth’ to include New Zealand ships. Bevan Marten in Maritime Law in New Zealand, op cit. n. 7, states that New Zealand criminal law is the default criminal law for persons on board New Zealand vessels (at 203). Moreover, section 7A of the 1961 Crimes Act specifically extends extra-territorial jurisdiction over acts on board a New Zealand ship where the offence has transnational aspects. 26 Ibid., s 92. 27 Ibid., s 98. 28 Ibid., s 98AA. 29 Ibid., s 98C. 30 Ibid., s 98D.

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Zealand vessels wherever so located.31 Rather unusually, section 8 of the Crimes Act also provides for jurisdiction over any act or omission on board any vessel if that vessel arrives in New Zealand in the course of or at the end of the journey during which the act was done or omitted.32 Jurisdiction is also extended over acts done or omitted on board any Commonwealth ship, and in respect of any British subject, on board a foreign ship on the high seas or on board any vessel within the territorial waters of a Commonwealth state.33 This extensive jurisdictional mandate resulted in part from the 1931 British Commonwealth Merchant Shipping Agreement,34 which provided for jurisdiction over ‘offences committed on board ships registered in any Part of the Commonwealth’.35 Although New Zealand withdrew from the Agreement in 1979,36 section 8 of the Crimes Act has not been amended to reflect this.37 Section 8(1)(a) of the Act was last relied on in 1967 when a non-New Zealand citizen who boarded a Commonwealth ship in Australia and was by chance rescued and brought to New Zealand was tried for the attempted murder of a fellow seaman.38 Moller J in the Auckland Supreme Court (the equivalent of the High Court today) found that the exercise of extra-territorial jurisdiction by the New Zealand Parliament was not ultra vires in relation to the New Zealand constitution,39 and thus Mr Fineberg could be tried for the attempted murder, which took place on a Commonwealth vessel more than 100 miles off the coast of New Zealand, on the basis of section 8 of the Crimes Act. In the Court of Appeal, Mr Fineberg argued that sections 8 and 400 of the Act (which requires the consent of the Attorney-General for proceedings against non-New Zealand citizens in respect of extra-territorial offences) were both ambiguous and contrary to international law, circumstances which would in principle

31 The extra-territorial exercise of powers of boarding, search and arrest in respect of New Zealand vessels and persons located thereon was confirmed by the Court of Appeal in Teddy v. Police [2014] nzca 422 at [76–77]. 32 1961 Crimes Act, s 8(1)(d). 33 Ibid, s 8(1)(a) and (d). 34 1931 British Commonwealth Merchant Shipping Agreement (1932) 129–130 League of Nations Treaty Series 2961. 35 Ibid., Article 23. 36 Withdrawal noted in Department of Foreign Affairs, Report of the Department of Foreign Affairs [1979] ajhr A1, 38. 37 See further on this issue Timothy Smith, Fighting on the Ocean Blue: New Zealand’s Extra- Territorial Jurisdiction and Maritime Protest, 32 Victoria University of Wellington Law Review 499 (2001) at 503–505. 38 R v. Fineberg [1968] nzlr 119; R v. Fineberg (No. 2) [1968] nzlr 443. 39 R v. Fineberg [1968] nzlr 119.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 254 Scott permit an interpretation of those statutory provisions so as to comply with international law.40 The Court of Appeal gave no opinion of the compatibility of section 8 with international law but concluded that neither section 8 nor section 400 were ambiguous and there was consequently no need to interpret them in any way that departed from the natural language of the text.41 Section 8 of the 1961 Crimes Act constitutes an expansive approach to jurisdiction which is questionable in terms of its compatibility with international law. Typically, jurisdiction is only exercised in respect of activities on board foreign vessels beyond national jurisdiction where the impact of the activity is likely to affect the state or the good order of the sea, although once a vessel is in port that vessel is subject to the full jurisdiction of the state in question. More fundamentally, outside of any agreement or principles relating to univer- sal jurisdiction with respect to particular offences (such as piracy), the exercise of jurisdiction over British subjects or Commonwealth vessels would appear to exceed New Zealand’s rights under international law. Importantly, the consent of the Attorney General is necessary in respect of all prosecutions involving non-New Zealand citizens or permanent residents on board foreign vessels,42 and it would appear that no cases have been brought on the basis of section 8 in recent times. Moreover, post 1961, several statutes have been adopted set- ting out specific offences involving vessels or persons on vessels (such as the 1994 Maritime Transport Act, 1999 Maritime Crimes Act and the 2004 Maritime Security Act), which in practical terms restricts the scope of application of the 1961 Crimes Act to vessels or persons thereon. Nevertheless, this is an area where New Zealand law would benefit from being updated to reflect the mod- ern post-Commonwealth context and its obligations under international law.43 The 1999 Maritime Crimes Act implements the 1988 Convention for the Suppression of Unlawful Acts at Sea and its Protocol and establishes offences in respect of exercising control over a vessel by means of force, committing acts

40 R v. Fineberg (No. 2) [1968] nzlr 443. On the principle that an ambiguous statutory provision should be interpreted as far as possible to comply with international law see Worth v. Worth [1931] nzlr 1109; Sellers v. Maritime Safety Inspector [1999] 2 nzlr 44. 41 R v. Fineberg (No. 2) [1968] nzlr 443, 451. 42 1961 Crimes Act, s 400(1). 43 The Crimes Bill 1989, which has never been enacted, proposed revising section 8 of the 1961 Crimes Act so as to confine the application of extra-territorial jurisdiction (outside of specific offences) to New Zealand ships and aircraft, to New Zealand citizens and permanent residents on board any ship and in respect of persons committing acts and omissions on board any ship if that person arrives in New Zealand in the course of or at the end of a journey during which the act or omission occurred (clause 14). This Bill was never enacted for reasons unconnected with the jurisdictional clauses. See the 1989 Crimes Bill, available at http://nzlii.org/nz/legis/hist_bill/cb1989152192/

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access Maritime Law Enforcement in New Zealand 255 of violence on board a ship or placing anything on board likely to cause dam- age to a ship or its cargo.44 The Act provides for extra-territorial jurisdiction where the vessel is a New Zealand ship (and operating beyond New Zealand waters) or where the offender is a New Zealand citizen or permanent resident or where the alleged offender is present in New Zealand.45 The normal rules relating to arrest apply but no proceedings for prosecution may be initiated without the consent of the Attorney General.46 The principal act which implements New Zealand’s international obligations in respect of ship and port security is the 2004 Maritime Security Act, and the lead agency for enforcement is Maritime New Zealand. Section 31 of the Act permits Maritime Security Officers, Customs Officers and Constables to demand information from the Master and crew in relation to security, carry out inspections, and officers are able to delay, detain or restrict the operations of vessels, including movement within the port.47 The Chief Executive is ultimately permitted to expel a vessel from port where there are reasonable grounds to suppose the vessel poses an immediate threat to the safety of persons, ships or other property and there are no other appropriate means of removing the threat.48 If a vessel is expelled the Chief Executive may require it to proceed to a specified location within New Zealand’s territorial sea, internal waters or continental waters.49 The Act also provides for routine screen- ing and searching of both persons and vessels50 as well as the power to seize items.51 Authorised persons – a Maritime Security Officer, Customs Officer and Constable – are permitted to make arrests under the Act.52 Finally, the Chief Executive may declare an exclusion zone around a ship if she considers it necessary for the maintenance of effective security of that ship after con- sultation with the chief executives of relevant government agencies including the police, Customs, mpi, the Ministry of Health and any other department or regional council likely to be affected.53 Once an exclusion zone is declared no person, craft or vessel may enter or leave the exclusion zone unless authorised

44 1999 Maritime Crimes Act, s 4. Section 5 provides for similar offences in relation to platforms. 45 Ibid., ss 8 and 9. 46 Ibid., s 17. 47 2004 Maritime Security Act, s 31. 48 Ibid., s 31(1)(e) and (2). 49 Ibid., s 31(5). 50 Ibid., ss 47, 48, 51 and 58. 51 Ibid., s 52. 52 Ibid., s 56. 53 Ibid., s 59.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 256 Scott by the Chief Executive.54 The Act sets out a range of offences with penalties ranging from a fine of NZ$5000 to NZ$100,000 (in the case of a body corporate) or a prison sentence of up to one year.55 Exclusion or non-interference zones around installations or structures on New Zealand’s continental shelf may be established pursuant to section 8 of the 1964 Continental Shelf Act and section 101B of the 1991 Crown Minerals Act, which also permits such zones to be established around vessels engaged in mining activities. Enforcement officers – every constable, person in charge of or acting under the direction of a person in charge of a New Zealand Defence force vessel56 – are entitled to stop, board or detain persons or vessels entering the zone or to prevent persons and vessels entering the zone.57 The Crown Minerals Act provides for powers of arrest in respect of interference with exclusion zones and creates associated offences.58 These offences and powers of enforcement apply to foreign vessels as well as to New Zealand registered vessels within New Zealand’s territorial sea and eez, but proceedings may only be brought against persons on foreign registered ships with the consent of the Attorney General.59 The extent to which the establishment of exclusion zones around vessels within the eez is consistent with international law is discussed elsewhere60 but in order to comply with a foreign vessel’s right to freedom of navigation it would appear that enforcement against foreign vessels may only take place within the exclusion zone or as a consequence of a hot pursuit from the exclusion zone. Finally, the powers exercised by Customs Officers and constables under the 1996 Customs and Excise Act within New Zealand’s territorial sea and contig- uous zone are relatively standard. Officers may board suspect craft,61 search and detain vessels and property.62 Property may be seized and forfeited to the crown.63 Force is expressly permitted under the Act, which allows officers, as a last resort, to fire on a vessel where it refuses to stop or where officers are not permitted to board.64 Between June 2015 and June 2016 Customs boarded all 674 small marine craft which arrived in New Zealand ports as well as 701

54 Ibid., s 61. 55 Ibid., ss 65–75. 56 1991 Crown Minerals Act, s 101C(6). 57 1991 Crown Minerals Act, s 101C(1). 58 1991 Crown Minerals Act, s 101C(2) and (3); 101B. 59 Ibid., s 101B(9). 60 Scott, supra note 7. 61 1996 Customs and Excise Act, s 139. 62 Ibid., ss 140 and 143. 63 Ibid., Part 14. 64 Ibid., s 142.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access Maritime Law Enforcement in New Zealand 257 commercial vessels that were deemed high risk.65 New Zealand currently pos- sesses only one customs vessel, Hawk IV although a second vessel, Hawk V, is currently under construction and due to come into service in 2018.66

3.2 Fishing Around 600,000 tonnes of fish are harvested annually from New Zealand’s eez67 with over 94 percent of that catch derived from stocks classed as sustainable.68 From June 2015 to June 2016 mpi spent NZ$35,489,000 on fisheries enforcement and monitoring in addition to NZ$10,894,000 on fisheries management.69 The principal agency with responsibility for fisheries enforcement is the mpi with significant support from the New Zealand Navy. From June 2015 to June 2016 the NZ Defence Force undertook 24 patrols supporting MPI enforcement operations within New Zealand’s eez, which comprised 42 days at sea and 159 flying hours.70 In addition, in 2016, the offshore patrol vessel hmnzs Otago performed enforcement operations in the Pacific supporting Fiji, Tuvalu, Samoa and Tonga in their surveillance of fisheries within their maritime zones.71 In the Southern Ocean offshore patrol vessels as well as a P-3K2 Orion undertook fisheries patrols supporting the Commission for the Conservation of Antarctic Marine Living Resources (ccamlr).72 A more significant operation took place in the Southern Ocean in 2015 with 44 days being spent by the hmnzs Wellington in the Ross Sea region. Seven high priority vessels were boarded with evidence of illegal toothfish operations being found in respect of three vessels, leading to international prosecutions.73 Enforcement within and beyond New Zealand’s jurisdiction takes place under the auspices of the 1996 Fisheries Act. All commercial fishing must be

65 New Zealand Customs Annual Report for the Year 2016, at 44, available at https:// www.customs.govt.nz/globalassets/documents/corporate-documents/nzcs-annual -report-2015-2016.pdf. 66 Coin seals patrol vessel’s good fortune, available at https://www.customs.govt.nz/ about-us/news/media-releases/coin-seals-patrol-vessels-good-fortune/. 67 Fisheries Infosite, available at http://fs.fish.govt.nz/Page.aspx?pk=20&tk=236. 68 Ministry of Primary Industries 2015/16 Annual Report, available at https://www.mpi.govt .nz/about-mpi/corporate-publications/ at 34 (hereinafter MPI, 2015/16 Annual Report). 69 MPI, 2015/16 Annual Report, at 61. 70 New Zealand Defence Force Annual Report 2015–2016, at 13, available at http://www .nzdf.mil.nz/downloads/pdf/public-docs/2015-2016-nzdf-annual-report.pdf. (Hereinafter, nzdf Annual Report 2015–2016). 71 Ibid., 15. 72 Ibid. 73 nzdf Annual Report 2015–2015, at 10, 22 and 59.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 258 Scott authorised by a permit74 and, from May 2016, fishing within New Zealand’s eez can only be undertaken by New Zealand registered vessels.75 Enforcement within ports and in New Zealand waters is undertaken by Fishery Officers, which include every officer in command of a naval vessel or aircraft, any constable as well as other persons so-directed.76 The 139 designated Fisheries Officers (as of 2017)77 are supported by 194 Honorary Fisheries Officers, who are volunteers outside of mpi78 but are provided with statutory powers under sections 197 and 198 of the 1996 Fisheries Act. Fishery Officers are able to exercise rights related to entry and examination of vessels,79 arrest,80 and seizure of catch.81 In addition Fishery Officers may give directions to the Master of any vessel,82 require landing at a designated location,83 and require specified equipment be installed on all or selected types of vessels.84 The 1996 Fisheries Act expressly permits reasonable force as is necessary to be used in order to exercise the powers under the Act.85 In 2016, the total number of inspections by both Fishery Officers and Honorary Fishery Officers was 29,965, down from 34,000 in 2015.86 The Act also establishes an observer programme designed to collect reliable information about catch, vessel safety and employment conditions as well as pollution and the discharge of waste from vessels.87 Observers are entitled to full access to vessels and their operations, and vessels must cooperate with observers as well as providing them with food, accommoda- tion and other facilities.88 Observer coverage has doubled in the last 10 years and focuses on deep water fishing.89 The percentage of vessels observed in the 2015/16 fishing year was 10 percent, which included a small number of vessels observed on every trip and some New Zealand vessels on the high seas.90 106 observers on 123 vessels were deployed in 2016, an increase on the 92 observers

74 1996 Fisheries Act, s 89. 75 1996 Fisheries Act, ss 103, 113E. 76 1996 Fisheries Act, s 196. 77 Official Information Act Request, 28 June 2017, available on file from the author. 78 Ibid. 79 1996 Fisheries Act, s 199. 80 1996 Fisheries Act, s 203. 81 1996 Fisheries Act, s 207. 82 1996 Fisheries Act, s 204. 83 1996 Fisheries Act, s 300. 84 1996 Fisheries Act, s 227A. 85 1996 Fisheries Act, s 205. 86 Official Information Act Request, 27 July 2017, available on file from the author. 87 1996 Fisheries Act, s 223(1). 88 1996 Fisheries Act s 223, 225, 226 and 227. 89 mpi, 2015/16 Annual Report, at 34. 90 Official Information Act Request, 28 June 2017, available on file from the author.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access Maritime Law Enforcement in New Zealand 259 on 102 vessels deployed in 2015.91 The average observation period over all vessels in 2016 was 65 days.92 The 1996 Fisheries Act creates a large number of offences and provides for variable penalties, with a maximum fine of NZ$500,000 or five years in prison.93 Consistent with its international obligations under Article 73(3) of the 1982 losc, New Zealand does not permit the imprisonment of foreign nationals unless there is an agreement between New Zealand and the government of that foreign national.94 The Act also provides for the recovery of costs associated with inspection and observation.95 In 2015 420 criminal proceedings for fishery offences were initiated by mpi, resulting in 334 convictions.96 Perhaps as a consequence of the ban on foreign fishing vessels operating in New Zealand waters from May 2016, the rate of proceedings fell in 2016 with mpi initiating proceedings against 329 individuals, leading to 281 convictions.97 The majority of proceedings were initiated against recreational as opposed to commercial fishers and the types of offences in respect of commercial fishers ranged from possessing fish in contravention of the Act, making false statements, dumping quota management species, contravening a sustainability measure and leaving set nets for more than the prescribed 24 hour period.98 Decisions to prosecute by mpi, or, more accurately, to not prosecute have been subject to stringent criticism in recent years, particularly in relation to bycatch and discard non-compliance. The Simmons Report, published in 2016, estimated that between 1950 and 2010 New Zealand’s reconstructed total catch (including discards) was estimated at 38.1 million tonnes, about 2.7 times the 14 million tonnes officially reported to the UN Food and Agriculture Organisation by New Zealand.99 The Simmons Report referred to two investigations carried out by mpi into the dumping and high-grading in the

91 Official Information Act Request, 27 July 2017, available on file from the author. 92 Official Information Act Request, 27 July 2017, available on file from the author. 93 1996 Fisheries Act, s 252. 94 1996 Fisheries Act, s 253. If the offence would otherwise have attracted a prison sentence a court may impose a fine of up to NZ$500,000. 95 1996 Fisheries Act, ss 262 and 263. 96 Official Information Act Request, 27 July 2017, available on file from the author. 97 Ibid. 98 Ibid. 99 See Glenn Simmons, et al, Reconstruction of Marine Fisheries Catches for New Zealand (1950–2010) (2016), available at http://www.seaaroundus.org/doc/publications/wp/2016/ Simmons_2016.pdf. See also Daniel Pauly and Dirk Zeller, ‘Catch reconstructions reveal that global marine fisheries catches are higher than reported and declining’ 2016 Nature Communications 7:10244/ doi:10.1038/ncomms10244.

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South-eastern trawl and setnet fishery (Operation Hippocamp, 2012100) and bycatch of hectors dolphins and other marine mammals (Operation Achilles, 2013/ 2014101) and questions were raised as to why no prosecutions resulted from these investigations. An independent review of mpi’s decision not to prosecute in these operations was carried out by Michael Heron QC in 2016,102 who found the decision not to prosecute in Operation Achilles understandable in the circumstances,103 but nevertheless was strongly critical of the process of decision-making, which he described as flawed, confused and not well- documented.104 More generally, the report highlighted the lack of coordination between the Fisheries Management and Fisheries Compliance Directorates105 and the relationship between measures designed to address bycatch trialled by mpi and compliance and, more particularly, the extent to which footage obtained as part of measures or initiatives designed to minimise bycatch can be used in compliance proceedings.106 These challenges have yet to be fully addressed by mpi, but the Ministry is in the process of developing an inte- grated electronic monitoring and reporting system to cover all commercial vessels as well as gps, electronic catch reporting and the installation of video cameras on all commercial vessels.107 Beyond New Zealand waters the 1996 Fisheries Act permits enforcement action to be taken against vessels registered to New Zealand on the high seas108 by mpi Fishery Officers, who are all designated high seas fishery inspectors109 or by foreign inspectors as authorised by New Zealand.110 Foreign vessels who have committed an offence in New Zealand waters, and which are the subject of ‘fresh pursuit’ by a fishery officer who began the pursuit in New Zealand

100 See Operation Hippocamp Investigation Report, 2012, available at https://mpi.govt.nz/ dmsdocument/14047-operation-hippocamp-investigation-report. 101 See Operation Achilles Preliminary Investigation Report, 2013, available at http://www .mpi.govt.nz/dmsdocument/14035-operation-achilles-preliminary-investigation-report -dumpingdiscarding and Operation Achilles Final Investigation Report, 2014 available at: http://www.mpi.govt.nz/dmsdocument/14032-operation-achilles-final-investigation -report. 102 Michael Heron QC, Independent Review of MPI/MFish Prosecution Decisions Operations Achilles, Hippocamp and Overdue (2016), available at http://www.mpi.govt.nz/ law-and-policy/legal-overviews/fisheries/independent-review-of-prosecution-decisions/ 103 Ibid., para. 2.3.2. 104 Ibid., paras. 2.3.2 and 2.3.5. 105 Ibid., para. 5.3.78. 106 Ibid. 107 MPI, 2015/16 Annual Report, at 34–35. 108 1996 Fisheries Act, s 113R. 109 1996 Fisheries Act, ss 198A and 113R. 110 1996 Fisheries Act, s 113X.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access Maritime Law Enforcement in New Zealand 261 waters, are also subject to enforcement action on the high seas.111 Finally, high seas fishery inspectors may inspect foreign vessels on the high seas flagged to a state which is a member of a regional fisheries management organisation (rfmo), which has established boarding and inspection procedures for other members or where the vessel is flagged to a state party to the 1995 Fish Stocks Agreement.112 Consistent with New Zealand’s rights and obligations under international law high seas fishery inspectors in respect of foreign vessels may board the vessel and inspect documentation,113 remain on board where a serious violation is detected and direct the vessel to port if the flag state fails to respond within three days of notification.114 Only New Zealand vessels or nationals are subject to criminal proceedings under the Act and the consent of the Attorney General is necessary for the prosecution of New Zealand nationals for fishing activities within the jurisdiction of another state or for the unlawful use of a foreign vessel on the high seas.115 The Chief Executive may also withdraw a vessel’s authorisation to fish on the high seas, imple- menting New Zealand’s obligation under Article 19(2) of the 1995 Fish Stocks Agreement.116 Foreign vessels may be prevented from entering into port where the Chief Executive has determined that the vessel has undermined international conservation measures.117

3.3 Safety of Shipping and Discharges from Ships Compliance and enforcement associated with shipping safety and discharges from ships is the primary function of Maritime New Zealand, which is also charged with investigating and responding to maritime incidents and advising the government on maritime matters.118 However, where incidents take place within 12 nautical miles of the coast, regional councils and Harbour Masters also play an important role with respect to discharges and safety of shipping more generally under the 1991 Resource Management Act. Moreover, in respect of serious incidents the National Maritime Coordination Centre may coor- dinate multi-agency operations. Most enforcement with respect to safety of

111 1996 Fisheries Act, s 215. Although the archaic term ‘fresh pursuit’ is used under the Act this right is broadly equivalent to what is more commonly described as ‘hot pursuit’ under international law and is permitted under Article 111 of the losc. 112 1996 Fisheries Act, s 113S. This provision reflects the rights of New Zealand under section 21 of the 1995 UN Fish Stocks Agreement. 113 1996 Fisheries Act, s 113T. 114 1996 Fisheries Act, s 113U. 115 1996 Fisheries Act, s 113ZE. 116 1996 Fisheries Act, s 113Y. 117 1996 Fisheries Act, s 113ZD(2). 118 1994 Maritime Transport Act, s 431.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 262 Scott shipping takes place within New Zealand’s ports as opposed to at sea. Sixteen ports in New Zealand receive around 700 cruise ship port calls and 5600 cargo vessel port calls every year, and there are approximately 1500 commercial fishing vessels operating around New Zealand’s coast.119 Around 880 foreign ships make 6200 port calls per year.120 It is estimated that New Zealand ports handle around NZ$39.5 billion in exports and NZ$48.2 billion in imports per year.121 The cruise ship industry is worth approximately NZ$436 million per year.122 Shipping safety (excluding vessel discharges) is addressed under multiple, overlapping statutes. The jurisdiction of regional councils in respect of marine activities (excluding fishing and oil and gas extraction) extends out to 12 nautical miles as measured from the baseline under the 1991 Resource Management Act.123 As such, Harbour Masters and Enforcement Officers appointed by the Regional Council124 have a right to board vessels, give directions and require the removal of wrecks and abandoned vessels.125 The Director of Maritime New Zealand is also able to direct the Regional Council to require the removal of wrecks and abandoned ships or indeed to direct their removal by their owner.126 Where ships are in distress, the Director of Maritime New Zealand has the right to issue directions, require assistance and otherwise intervene in order to protect the ship, lives or cargo.127 The 1994 Maritime Transport Act creates offences for persons not complying with such directions issued.128 Discharges and dumping from vessels are similarly regulated under multiple statutes, principally the 1991 rma in respect of discharges taking place within New Zealand’s territorial sea,129 the 1994 Maritime Transport Act in relation to discharges not associated with mining in New Zealand’s eez,130 and the 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act for discharges connected to mining within the eez.131 Enforcement officers may be appointed under all three statutes and have the power to issue

119 Maritime New Zealand Annual Report 2015/16, at 9, available at https://www.maritimenz .govt.nz/about/annual-reports/documents/MNZ-annual-report-2015-2016.pdf. 120 Ibid., 10. 121 Ibid., 14. 122 Ibid. 123 1991 RMA, s 15B. 124 1994 Maritime Transport Act, ss 33F and 33G(a). 125 1994 Maritime Transport Act, ss 33F, 33J, 33L. 126 1994 Maritime Transport Act, ss 33K, 110. 127 1994 Maritime Transport Act, s 100. 128 Ibid. 129 1991 Resource Management Act, s 15B. 130 1994 Maritime Transport Act, s 226. 131 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act, s29A.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access Maritime Law Enforcement in New Zealand 263 abatement orders.132 Enforcement orders can also be made by the Environment Court or by an Environmental Judge.133 It is however, Maritime New Zealand, which has the primary function of responding to and taking enforcement action in respect of vessel discharges in New Zealand waters. The Director of Maritime New Zealand may require the owner of a vessel to take all reasonable steps where a discharge is threatening the environment134 and, where the vessel is classified as hazardous, may take all measures including removing the vessel to another place, removing the cargo or even destroying the cargo or ship.135 Measures must be necessary136 and the Director must inform the Environmental Protection Agency if the eez is likely to be affected.137 In the event of a conflict between instructions issued by the Director of Maritime New Zealand and any Harbour Master, the directions of the Director will prevail.138 The Director of Maritime New Zealand has extensive powers of investigation in respect of vessel discharges contrary to the 1991 Resource Management Act, the 1994 Maritime Transport Act and the 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act.139 The most significant response to a vessel discharge to date was in relation to the MV Rena, a Greek owned, Liberian flagged, cargo vessel that grounded on the Astrolabe reef off Tauranga in October 2011. Maritime New Zealand, together with the regional council, responded to the incident, but around 350 tonnes of heavy fuel oil was lost.140 Following the incident the Captain and the Navigation Officer were sentenced to seven months imprisonment for breaches of the 1991 Resource Management Act and the 1994 Maritime Transport Act,141 and the shipping company was fined NZ$300,000 for breach of section 338(1B) of the Resource

132 1994 Maritime Transport Act, s 33M (in respect of regional councils); s 223; 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act, s 125. 133 1991 Resource Management Act, s 314; 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act, ss 114, 115. 134 1994 Maritime Transport Act, s 233. 135 Ibid., s 248. 136 Ibid., s 250. 137 Ibid., s 250(2). 138 Ibid., s 252. 139 Ibid., s 235. 140 See Simon Murdoch, Independent Review of Maritime New Zealand’s Response to the MV Rena Incident on 11 October 2011 (2013) available at https://www.maritimenz.govt.nz/ public/environment/responding-to-spills/documents/Independent-Review-MNZ -response-to-Rena.pdf. 141 Maritime New Zealand v. Mauro Balomaga, Leonil Relon cri-2011-070-007734 (May 24, 2012).

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Management Act142 as well as paying compensation to local businesses, iwi and the regional council. The status of the wreck and whether it should be removed or abandoned is still under dispute and litigation is on-going.143 Enforcement in respect of vessel safety more generally largely takes place within New Zealand’s ports. Maritime New Zealand is principally responsible for the inspection of vessels for all aspects of their construction, manning and operation under the 1994 Maritime Transport Act. Maritime New Zealand may suspend or revoke shipping documentation,144 suspend persons work- ing on New Zealand registered vessels,145 detain any ship or cargo or impose conditions on the operation of any ship in port.146 The owner of any vessel must pay reasonable costs associated with detention.147 Similar powers exist in respect of vessels suspected of discharging substances contrary to New Zealand legislation.148 Between June 2015 and June 2016 284 port inspections were carried out in respect of foreign registered vessels. 554 deficiencies were found with 47 percent of those requiring rectification prior to departure. Eight vessels were detained.149 This comprised an inspection rate of 80 percent of priority one vessels entering New Zealand, an impressive increase on the 49 percent of priority one vessels inspected in 2014-2015.150 Around 2000 safety or environmental events were reported between 2011 and 2016; 45 percent relating to commercial vessels and 39 percent were associated with foreign registered vessels.151 New Zealand is a party to the 1993 Memorandum on Port State Control in the Asia Pacific Region (Tokyo mou)152 and detained six vessels pursuant to the mou in 2017, an increase of three ships detained in 2016.153 Maritime New Zealand, in its most recent annual report (2015–2016), nevertheless noted that the effective implementation of international agreements

142 Maritime New Zealand v. Daina Shipping Company cri-2012-070-001872 (October 26, 2012). 143 Ngāi Te Hapū Incorporated; Ngā Potiki a Tamapahore Trust v. Bay of Plenty Regional Council and Astrolabe Community Trust [2017] NZEnvC 073. 144 1994 Maritime Transport Act, ss 43 and 44. 145 Ibid., s 52. 146 Ibid., ss 55, 460. 147 Ibid., ss 56 and 462. 148 Ibid., ss 397, 398. 149 Maritime New Zealand Annual Report 2015/16, at 10. 150 Ibid., 65. 151 Ibid., 14. 152 1993 Memorandum on Port State Control in the Asia Pacific Region (Tokyo mou). Text of mou available at http://www.tokyo-mou.org/doc/Memorandum%20rev17.pdf. 153 Detention List, available at http://www.tokyo-mou.org/inspections_detentions/deten tion_list.php.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access Maritime Law Enforcement in New Zealand 265 and maintaining effective port state control with limited operational resources is a key challenge.154 More generally, Maritime New Zealand has highlighted resource constraints, particularly in respect of personnel, which currently comprise 212.3 full time employees, concluding that ‘fiscal constraints are impacting on our ability to recruit a full staff complement.’155 Finally, where pollution offences are committed beyond New Zealand’s exclusive economic zone, proceedings may be taken against New Zealand citizens or permanent residents and any other person with the consent of the Attorney General.156 Section 224 of the 1994 Maritime Transport Act in effect implements Article 218 of the 1982 losc, which permits port states to take action in respect of any discharge on the high seas in violation of applicable international standards. The 1994 Maritime Transport Act also provides for cooperative processes between New Zealand and foreign ports where persons employed on a New Zealand registered vessel has committed an offence outside of New Zealand or on the high seas.157 The Act provides for the reasonable detention of such persons with a view to their being returned to New Zealand for prosecution.158

3.4 Protection of the Marine Environment Outside of the area of vessel discharges and safety of shipping, New Zealand provides for standards and enforcement of those standards relating to biosecurity and the protection of wildlife and marine reserves. The mpi is the lead agency with a mandate to enforce the 1993 Biosecurity Act. Inspectors or otherwise authorised or accredited persons as designated under the Act159 are able to board and inspect vessels,160 move, detain or otherwise direct the operation of a vessel161 and take action with respect to persons or cargo representing a threat to the New Zealand environment whilst respecting the rights of vessels to innocent passage and freedom of navigation.162 Under the 1996 Fisheries Act vessels not registered to New Zealand may be prevented from entering port where the Chief Executive determines they represent a

154 Maritime New Zealand Annual Report 2015/16, at 10. 155 Ibid., 17. 156 1994 Maritime Transport Act, s 224. 157 Ibid., s 415. 158 Ibid. 159 1993 Biosecurity Act, s 103. 160 Ibid., s 31. 161 Ibid., s 32. 162 Ibid., ss 4 and 162AB.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 266 Scott threat to New Zealand terrestrial or aquatic life.163 The first time these powers were exercised was March 2017 when the DL Marigold (Korean owned and flagged in Panama) arrived in Tauranga with the intention of remaining in New Zealand waters for nine days. Dense biofouling was discovered and the Marigold was ordered to leave on the 6th March. The Marigold was eventually allowed to return on the 29th March after she had been cleaned.164 In order to protect aquatic wildlife within New Zealand’s territorial sea, rangers appointed under the 1953 Wildlife Act,165 have the power to stop and search vessels and seize any protected animal (or part thereof) that has been obtained illegally, as well as any equipment or boats which have been used in illegally obtaining protected wildlife.166 Authorised persons have the power to arrest individuals for breaches of the Act.167 Rangers are also appointed under the 1971 Marine Reserves Act, which establishes marine reserves within New Zealand’s territorial sea. Vessels illegally entering marine reserves can be challenged, stopped, searched and persons on board required to cease and desist any illegal conduct.168 The powers of rangers are confined to the reserve area itself unless they are exercising the right of fresh pursuit and are able to apprehend a vessel outside of the reserve but within New Zealand’s territorial sea.169 By contrast, the 1978 Marine Mammal Protection Act applies to New Zealand’s entire eez. The lead agency is the Department of Conservation and Marine Mammal Officers (who comprise every warranted officer and every Fishery Officer)170 have the power to search vessels suspected of contravening the Act,171 which prohibits taking marine mammals without a permit.172 Officers may also remain on board as observers.173 The Act creates offences with a maximum penalty of two years in prison or a fine of NZ$250,000 and the forfeiture of vessels and any other equipment involved in taking the marine mammal.174 Notably, the Act permits proceedings to be taken against persons

163 1996 Fisheries Act, s 113ZD(3). 164 Available at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11827676/ 165 1953 Wildlife Act, ss 38 and 39. 166 Ibid., s 39. 167 Ibid., ss 39D and 39F. 168 1971 Marine Reserves Act, s 18. 169 Ibid., s 18(2). 170 1978 Marine Mammal Protection Act, s 11. 171 Ibid., s 13. 172 Ibid., s 4. 173 Ibid., s 12. 174 Ibid., s 9.

4 Cooperation and Challenges

The concepts of cooperation and challenge are intimately linked in the context of maritime enforcement in New Zealand. The principal challenge faced by New Zealand is a relatively low level of resources across all agencies in terms of both personnel and equipment as compared with the size of New Zealand’s maritime zone and coastline. As a consequence of this, New Zealand agencies are highly cooperative and the New Zealand Defence Force, in particular, plays an important role in cooperating with and supporting enforcement operations associated with fishing and environmental protection. Similarly, Maritime New Zealand cooperates with regional councils in relation to shipping safety and vessel discharges within New Zealand’s territorial sea. Nevertheless, there are challenges associated with such cooperation. The grounding of the MV Rena in 2011 highlighted tensions between Maritime New Zealand and the regional council in responding to New Zealand’s most serious maritime disaster in recent times, and the review of the response to the incident recom- mended improvements in management and communication by the various agencies involved.176 Within the Ministry of Primary Industries itself the independent review into bycatch and discards prosecution highlighted confusion and a lack of cooperation between the fisheries management division and the fisheries enforcement division, resulting in failure to prosecute for fisheries non-compliance in a number of cases.177 New Zealand has identified clear maritime priorities beyond New Zealand waters, in particular, in the Southern Ocean and the Pacific.178 To this extent, the New Zealand Navy is required to cooperate with other states and international organisations. Its operations in the Southern Ocean and the Pacific in 2015 and 2016 supporting fisheries enforcement have been noted above. These

175 Ibid., s 25. 176 See Simon Murdoch, Independent Review of Maritime New Zealand’s Response to the MV Rena Incident on 11 October 2011 (2013), at 103, available at https://www.maritimenz.govt .nz/public/environment/responding-to-spills/documents/Independent-Review-MNZ -response-to-Rena.pdf. 177 Michael Heron QC, Independent Review of MPI/MFish Prosecution Decisions Operations Achilles, Hippocamp and Overdue (2016) at para. 5.3.78, available at http://www.mpi.govt.nz/ law-and-policy/legal-overviews/fisheries/independent-review-of-prosecution-decisions/ 178 2016 NZ Defence White Paper, [4.33].

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 268 Scott activities have continued with the deployment of hmnzs Otago to support Operation calypso in the Pacific between June and August 2016, contribut- ing to the work of the Pacific Forum Fisheries Agency, and the deployment of hmnzs Hawea for six months in 2017 to Fiji to support border operations there.179 Patrols in the Southern Ocean continued in 2017 to combat illegal fishing and support the enforcement of ccamlr.180

5 Conclusion

New Zealand is undoubtedly a maritime nation which looks outwardly towards the Southern Ocean and the Pacific in determining its maritime domain. In contrast to many other states, illegal immigration (by sea), terrorism and crime present less of a threat than illegal fishing and environmental pollution. Unsurprisingly, the focus of New Zealand’s maritime agencies are largely focused on these issues and this priority can be seen in the failure to ratify and implement the 2005 sua Convention, for example. New Zealand has developed a relatively comprehensive legislative framework for maritime enforcement and implements its rights and obligations consistently with international law although the jurisdictional clause under section 8 of the 1961 Crimes Act would benefit from significant updating. It is notable that New Zealand has implemented the full extent of its rights with respect to extra-territorial enforcement, and regularly exercises those rights in relation to fishing, particularly in the Southern Ocean. The challenge for New Zealand in the future is to maintain and develop its capacity to enforce domestic and international laws within and beyond jurisdiction in light of inevitable resource constraints and the varying priorities of national governments.

179 New Zealand Defence Force Annual Report 2016–2017, at 17, available at http://www.nzdf .mil.nz/downloads/pdf/public-docs/2017/2016-2017-nzdf-annual-report.pdf. 180 Ibid.

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