Asia-Pacific Economic Cooperation (APEC 2021) Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

NO

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.2.1. If so, was a National Interest Analysis report prepared to inform a Parliamentary examination of the proposed New Zealand action in relation to the treaty?

NO

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

Legislative enablers for hosting and securing the Asia-Pacific Economic Cooperation (APEC) Meetings in 2021, Ministry of Foreign Affairs and Trade, dated 9 November 2018.

https://treasury.govt.nz/publications/legislation/regulatory-impact-assessments

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

YES

On 6 November 2018 the Treasury provided the following opinion:

A Quality Assurance Panel with representatives from the Regulatory Quality Team at The Treasury, the Ministry of Justice and the New Zealand Police has reviewed the Regulatory Impact Assessment “Legislative enablers for hosting and securing the Asia-Pacific Cooperation (APEC) Meetings in 2021” produced by the Ministry of Foreign Affairs and Trade and dated November 2018. The Quality Assurance panel considers that it meets the Quality Assurance criteria.

The RIA is clear and logical in presenting proposed changes to seven legislative areas. The objectives and decision criteria describe the desired outcome. The impact analysis of the options within each of the seven areas is comprehensive and convincing. MFAT has undertaken extensive consultation with key stakeholders within government. The implementation risks and mitigation steps have been identified and explained.

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

YES

The following policy changes have been made after further consideration during the development of the Bill:

• To implement the policies regarding New Zealand Defence Force (NZDF) support and enabling carriage of weapons by foreign protection officers Cabinet agreed to amend the Defence Act 1990 and the Arms Act 1983 respectively. Based on advice from Parliamentary Counsels Office the policies are now implemented through this standalone Bill.
• Powers linked to airspace enforcement that were to be available to the NZDF are now limited to NZ Police alone.
• Powers linked to airspace enforcement that were to be available to the Aviation Security Service have also now been limited to NZ Police alone.
• The ability to create maritime safety and security areas was originally linked to Auckland harbour, focussing on the Waitematā Harbour. These areas can now be created where required for security or safety purposes.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

Despite the minor policy changes outlined above, a new or amended RIA was not considered required for this Bill as the changes were minor and the policy intent was considered in that RIA and officials’ advice is unchanged.

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

YES

The provisions of this Bill are designed to support hosting and security activities. Aside from penalties for any person convicted of a proposed offence, there are no direct costs from these provisions. By enabling more effective hosting and security activities the benefits applicable to the APEC events can be more fully realised.

See Section 4 of the RIA at https://treasury.govt.nz/publications/legislation/regulatory-impact-assessments

Security areas may impact upon local businesses and may thus impact upon income. These areas will be limited in size and disruption caused, to the extent practical as well as being consulted and notified.  It is the intention of APEC NZ to connect NZ businesses with the opportunities APEC will bring.

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

NO

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

NO

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

The policy to be given effect by this Bill has been assessed by the Legal Division of the Ministry of Foreign Affairs and Trade. No issues were identified.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

During the policy development process consultation was undertaken with the Principal Adviser (Māori) within the APEC 2021 Programme to ensure consistency with the principles of the Treaty of Waitangi.

Consideration was given to ensuring that the policy around maritime safety and security areas did not limit Kaimoana Customary Fishing / Gathering.

No other issues were identified in the Bill that may have implications for the rights and interests of Māori protected by the Treaty of Waitangi.   

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

The Ministry of Justice has assessed the Bill as to its consistency with New Zealand Bill of Rights Act 1990 and have concluded that the Bill is consistent with the rights and freedoms affirmed in that Act.

In summary they have reported to the Attorney General that:

• The Bill grants wide discretionary powers during the three-week period in November 2021. APEC 2021 is a major international event of significant scale and complexity. Leaders from 21 world economies will be in New Zealand.
• The exercise of the discretionary powers granted under the Bill are likely to result in significant limitation on certain protected rights and freedoms, in particular freedom of movement. However, they consider that these limits can be justified in a free and democratic society. This is largely on the basis that:
• There is a clear and pressing need for security at an event of such international significance; and
• There is nothing to suggest that Parliament is authorising the powers be used in a way that is inconsistent with the Bill of Rights Act. While the powers appear to be granted in wide-terms, s6 of the Bill of Rights Act requires that these powers be interpreted consistently with the Bill of Rights Act where possible. Rights consistent interpretations of these powers are available.

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

YES

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

NO

The Bill creates 8 temporary offences:

• Impersonation of constable by a member of APEC security staff.
• Impersonation of APEC security staff.
• Knowingly attempt to enter or remain in security area or secure transport route.
• Knowingly not comply with requirement, condition, direction, or prohibition in security area or secure transport route.
• Knowingly interfere with closure of security area or secure transport route.
• Knowingly fail to stop (or keep stopped) a vehicle or vessel.
• Knowingly operate aircraft or do an activity in breach of APEC security airspace.
• Knowingly not comply with requirement, condition, direction, or prohibition in relation to APEC security airspace.

All offences against this legislation will carry the same penalty on conviction - to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000. This penalty is based upon similar offences in the Trespass Act 1980, Summary Offences Act 1981, Civil Aviation Act 1990, Biosecurity Act 1993 and Defence Regulations 1990.

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The Ministry of Justice were consulted during initial policy scoping, during detailed policy development and finally on the policy Cabinet paper. Particular advice was sought on Bill of Rights Act 1990 implications and on proposed offences.

As a result of feedback received from the Ministry of Justice a proposed offence relating to public order policing was not progressed further as it was considered problematic and too  broad from a Bill of Rights Act 1990 perspective and not necessary to effectively secure APEC 2021.

The Ministry of Justice was further consulted during the drafting of this Bill and advice on the search and offence provisions was incorporated.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

YES

The Bill enables APEC economies to apply to the Commissioner of Police for protection officers to carry weapons to protect an attending leader. This will involve providing personal and professional information. The process will be managed as part of the APEC 2021 Event Management System which will be preparing a full Privacy Impact Assessment in late 2019.

While it is unlikely that use of any wireless electronic countermeasure device will capture a private communication the legislation places significant limitations on:

• who can use W-ECM devices (must be authorised by the Commissioner of Police);
• why they can be used (to counter potential and actual risks to security at APEC events and protected persons);
• for how long they can be used (specified period of time linked to an APEC events that expire at the end of each event period); and
• where they can be used (linked to APEC security areas, airspace or secure transport routes).

The legislation also places obligations on the disclosure, storage and disposal of any private or personal information should any such information be inadvertently capture when responding to a risk cause by a radio ore wireless controlled device.

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

NO

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? 

YES

The policy details were developed alongside the APEC New Zealand’s and New Zealand Police’s high level planning for hosting and securing the APEC forum.

The policy details and the draft legislation have been developed with considerable consultation to ensure that New Zealand Police, the New Zealand Defence Force, and other relevant agencies find the legislation and easy to implement and fit for purpose.

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

While there are no provisions that require the compulsory acquisition of private property, the effect of the Bill will be that:

• owners of aircraft who breach APEC security airspace may have their aircraft seized or destroyed;
• if the carriage or possession of a firearm, pistol, restricted weapon, part, magazine, or ammunition by a foreign protection officer is not authorised by an authority (or any provision of any other Act), or breaches any condition of an authority a constable may seize and detain it;
• if an item or substance is found during a screen or search under the legislation and the searcher has reasonable grounds to suspect that the item or substance is a risk item or substance, the searcher may seize the item or substance.

The Bill contains appeal provisions to enable the appeal of a seizure decision.

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

YES

The Bill establishes that:

• Every person is immune from civil and criminal liability for good faith actions or omissions in pursuance or intended pursuance of the person’s duties, functions, or powers if:
  • the actions or omissions are reasonable; and
  • the person believes on reasonable grounds that the preconditions for the performance or exercise of the duty, function, or power have been satisfied.
  • Every person is immune from civil and criminal liability for good faith and reasonable actions or omissions to assist another with the other’s pursuance or intended pursuance of duties, functions, or powers under this Act.

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

YES

The Bill enables the ability to close a private place for security purposes. This may, in a few circumstances, include the need to search a private dwelling. Should this be required the search may only be done by consent or with a warrant.

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

NO

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

YES

APEC in 2021 will be the largest event ever hosted by the New Zealand Government. It is a 12 month series of events, culminating in Leaders’ Week in Auckland in November 2021. Its scale, complexity and cost means the APEC Summit is considered a mega-event. It is estimated to be four times the size and of significantly higher complexity of when New Zealand last hosted APEC in 1999. This is based on the size of the delegations and workforce required to support the event.

Since New Zealand last hosted APEC in 1999, the international threat and risk environment has changed significantly. Changes include proliferation of wireless technology, higher risk of low technology terrorist attacks (such as the use of vehicles against crowded places), and social media and ease of information exchange creating less predictable protest activity.

The provisions in this Bill reflect the requirements of hosting and securing an event of the scale and complexity of APEC, especially the Leader’s Week period. Legislation is also considered the most transparent way of addressing these issues.

A number of provisions that are likely to be of particular interest are discussed in Appendix One.