Maritime Powers 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?

YES

‘Review of the Search and Surveillance Act 2012’, Law Commission, 2017.

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

NO

This Bill seeks to give effect to powers that will enable New Zealand to enforce its criminal law in international waters, consistent with international law.

The key international instruments already ratified and relevant to this Bill are the United Nations Convention on the Law of the Sea (UNCLOS), the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (UN Drugs Trafficking Convention) and the United Nations Convention against Transnational Organised Crime and Protocols (UNTOC).

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

The implications of taking action in relation to international treaties have been assessed in the Regulatory Impact Assessment (RIA).

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

YES

Regulatory Impact Analysis: Maritime Powers Legislation, Ministry of Foreign Affairs and Trade, 25 October 2019

The RIA will be made available online when the Bill is introduced.

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?

NO

A multi-agency quality assurance panel (MFAT, MBIE and DPMC) has reviewed the RIA and considers that the information and analysis summarised in the RIA meets the quality assurance criteria.

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?

NO

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

NO

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?

NO

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

NO

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 Legal Division of the Ministry of Foreign Affairs and Trade has led policy development and confirms that the Bill and policy comply with international law.

The Crown Law Office has also been consulted.

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?

The Ministry of Foreign Affairs and Trade has considered the principles of the Treaty of Waitangi as part of policy development.

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

Advice provided to the Attorney-General is generally expected to be available on the Ministry of Justice’s website at introduction of a Bill and can be accessed at:

https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/bill-of-rights-compliance-reports/advice/

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)?

YES

Clause 34 of the Bill establishes four criminal offences.

Clause 34 (1) (a) relates to a person who threatens or intentionally obstructs an enforcement officer in the execution of their powers. The penalty for this offence is imprisonment for a term not exceeding 12 months. This reflects the potential seriousness of offending. A penalty of imprisonment for a term not exceeding 12 months will also enable New Zealand to extradite individuals for serious offending and prosecution, with Attorney-General consent. A penalty of up to 12 months imprisonment is also consistent with equivalent obstruction offences found in other Acts: see Section 376 of the Customs and Excise Act 2018 and Section 10F(2) of the Maritime Crimes Act 1999.

Clause 34 (1)(b) creates an offence for a failure to comply without reasonable excuse with requirements imposed by an enforcement officer. The penalty for this offence is a term of imprisonment not exceeding 3 months. This penalty is consistent with equivalent failure to comply offences: see Section 10F(4) of the Maritime Crimes Act 1999.

Clause 34(2)(a) creates an offence where, in response to a requirement to do so, a person provides materially false or misleading information to an enforcement officer.

Clause 34(2)(b) creates an offence where, in response to a requirement to do so, a person intentionally fails to disclose any material particular.

The penalty for both offences under clause 34(2) is a term of imprisonment not exceeding 6 months. This period was informed by the ‘Review of the Search and Surveillance Act 2012’ authored by the Law Commission in 2017. The Review recommends a term not exceeding 6 months for equivalent offending under the Search and Surveillance Act in urgent situations and situations with heightened health and safety risks, such as those anticipated in the context of this Bill.

In all cases the consent of the Attorney-General is required to prosecute, per clause 36.

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

YES

The Ministry of Justice has been consulted on the penalties drafted in the Bill

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

Clause 22 provides that an enforcement officer may require a person to produce any document or thing. Such documents or things may contain personal information.

Clause 24(4) provides that an enforcement officer may require a person to supply their legal name, date of birth, residential address and nationality.

Clause 28 provides that enforcement officers can collect biometric information to establish or verify the identity of a person who has been arrested or detained.

Clause 42 provides that an enforcement officer can disclose personal information to a New Zealand public sector agency as if the information had been obtained in New Zealand by the enforcement officer.  

3.5.1. Was the Privacy Commissioner consulted about these provisions?

YES

The Privacy Commissioner has been consulted on the draft Bill.

The Privacy Commissioner considers any personal information collected by New Zealand agencies in the course of their duties, whether domestically or internationally is subject to the Privacy Act 1993 (and any other governing legislation) and therefore may be shared in the same way as any personal information held by an enforcement officer. The Privacy Commissioner recommends that clause 42 be removed. 

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 Ministry of Foreign Affairs and Trade has consulted with a range of agencies on the policy development and draft Bill.

The agencies set to gain enforcement powers, namely the New Zealand Police, New Zealand Defence Force, New Zealand Customs Service and the New Zealand Department of Conservation, have been extensively consulted to ensure the powers can be successfully operationalised. The Crown Law Office has also been closely engaged.

Maritime New Zealand, Ministry of Business, Innovation and Employment (Immigration New Zealand, New Zealand Petroleum and Minerals, and Health and Safety Policy), Ministry of Defence, Ministry of Justice, Ministry for Primary Industries (Biosecurity New Zealand and Fisheries New Zealand), Ministry of Transport, and WorkSafe have been consulted throughout the drafting of the Bill and their comments and advice incorporated where appropriate. The Office of the Privacy Commissioner was consulted on the Bill’s personal information powers.

Along with the above agencies, the following received a consultation draft of the Bill: the Department of Prime Minister and Cabinet (National Security Policy Directorate and Policy Advisory Group), Government Communications Security Bureau, and New Zealand Security Intelligence Service.

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

YES

Clause 43 of the Bill provides that a ship is forfeited to the Crown if it arrives in New Zealand under a direction given under clause 23(2)(b)(i) and any of the following apply;

a)    a drugs smuggling offence has been, or is being, committed on the ship:

b)    the ship has been, or is, otherwise involved in the commission, or in facilitating the commission, of a drugs smuggling offence:

c)     offences have been or are being committed on a ship relating to piracy, dealing in slaves, dealing in people under 18 for sexual exploitation, removal of body parts, or engagement in forced labour, smuggling and trafficking in people:

d)    an offence relating to the unlawful importation of goods into New Zealand has been, or is being committed on the ship.

The inclusion of clause 43 is essential given that the Bill will repeal and replace forfeiture provisions found in Section 267A and Schedule 5A of the Customs and Excise Act 2018. Section 267A and Schedule 5A currently give effect to international obligations deriving from the UN Drugs Trafficking Convention, UNCLOS and UNTOC, which have been ratified by New Zealand.

Clause 32 of the Bill provides for the seizure and disposal or delivery of any item an enforcement officer finds on board a ship if the enforcement officer believes on reasonable grounds:

a)    possession of the item is unlawful under New Zealand law; or

b)    importation, exportation or trade of the item is unlawful under New Zealand law.

Where the item is a wildlife specimen, clause 32 provides for the management of the specimen.

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

Clause 38 (1 - 3) provides that any person is immune from criminal or civil liability for good faith actions or omissions in the exercise of the duties, functions or powers under the Act if the act or omission is reasonable and the person believes on reasonable grounds that the preconditions for performance of the relevant duties, functions or powers are satisfied.

Clause 39 (1 - 2) provides that if any person is immune from civil liability under clause 38, the Crown is also immune from civil liability in tort in respect of that person’s conduct.

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

Further information about how the Bill creates and amends decision-making powers is available in Appendix One.

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?

NO