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Maritime Law Enforcement in New Zealand

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Maritime Law Enforcement in New Zealand Korean Journal of International and Comparative Law 6 (2018) 245–268 brill.com/kjic Maritime Law Enforcement in New Zealand 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 oper- ating 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 surveil- lance 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 sec- ond 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 enforce- ment 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, secu- rity, 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 associ- ated 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. korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/25/2021 245–268 07:20:08AM via free access 248 Scott 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 citi- zens 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.
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