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Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill (Consistent) (Sections 14, 19(1), 21, 25(c)) [2012] NZBORARp 54 (24 September 2012)

Last Updated: 28 April 2019

Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill

24 September 2012 ATTORNEY-GENERAL

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill

1. We have considered whether the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill (PCO 16637/3.2) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights

Act’). We understand that the Bill will be considered by the Cabinet Legislation Committee at its meeting on Thursday, 27 September 2012.

2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching this conclusion, we have considered possible inconsistencies with ss 25(c) (right to be presumed innocent until proven guilty), 21 (right to be free from unreasonable search and seizure), 14 (right to freedom of expression) and 19(1) (freedom from discrimination). Our analysis under those sections is set out below.
   

The Bill

3. The Bill makes interim changes to the registration of foreign charter vessels (FCVs) that apply until more substantive changes come into effect on 1 May 2016.
   
4. The interim changes widen the range of matters that must be considered by the responsible chief executive when consenting to applications to register FCVs to include employment and vessel safety conditions. They also extend the functions of fisheries observers, allow for regulations to recover the cost of these new functions from operators, and introduce new powers to suspend and cancel vessel registrations.
   
5. The Bill’s more substantive changes, which apply from 1 May 2016, require all fishing vessels operating in New Zealand fisheries waters to be flagged as New Zealand ships and to obtain consent to be registered as fishing vessels. This means that all such vessels will operate under full New Zealand jurisdiction, thereby

strengthening the Government’s ability to enforce New Zealand laws.

Consistency with the Bill of Rights Act

Section 25(c) (Right to be presumed innocent until proven guilty)

6. The Bill contains offences that have the appearance of strict liability offences in that they do not contain an explicit mens rea element. Strict liability offences engage s 25(c) (presumption of innocence) of the Bill of Rights Act because an accused person is required to prove a defence or disprove a presumption to escape liability, instead of merely raising a defence in an effort to create reasonable doubt.
   
7. In the absence of an explicit indication that the offences are intended to be strict liability, we consider that the courts would likely read in a mens rea element in line with the decision in Millar v Ministry of Transport.1 Consequently, we do not consider that these offences engage s 25(c).
   

Section 21 (Unreasonable Search and Seizure) and Section 14 (Freedom of Expression)

8. Section 21 of the Bill of Rights Act affirms the right of everyone to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise.
   
9. Amendments to s 223(4) of the Fisheries Act 1996 expand the range of information that fisheries observers may collect to include information about vessel safety and employment.
   
10. Amendments to s 225 provide that observers must be allowed access to:
    • · safety equipment and any document concerning the manufacture and operation of the equipment, at any reasonable time; and
    • · any person engaged or employed to do work on the vessel to discuss his or her employment or engagement.
      
11. New s 227A also allows the responsible chief executive to require that equipment to observe fishing and transportation be installed and maintained on a vessel.
    
12. Requests for information and electronic recording of activities can constitute searches for the purposes of s 21 of the Bill of Rights Act. We do not consider the powers in amended ss 223 and 225, and new s 227A, to be ‘unreasonable’ in terms of s 21 of the Bill of Rights Act. The objectives of the observer programme are to collect information about vessel safety and employment, and to collect information for fisheries research, management and enforcement purposes. The search powers enable these objectives to be achieved.
    

1 Millar v Ministry of Transport (1986) 2 CRNZ 216.

13. We have also considered whether the Bill limits the right to freedom of expression affirmed in s 14, but consider that any limitation is justified.
    

Section 19(1) (freedom from discrimination)

14. Section 19(1) of the Bill of Rights Act provides that everyone has the right to freedom from discrimination on the prohibited grounds of discrimination in the Human Rights Act 1993. The prohibited grounds of discrimination include ethnic or national origin, which includes nationality or citizenship.
    
15. From 1 May 2016, the Bill prevents non-citizens who are not entitled to reside in New Zealand indefinitely from registering a fishing vessel that they own. New

s 103 requires a vessel to be a “New Zealand ship” in order to be registered to fish in New Zealand fisheries waters. A “New Zealand ship” is a ship that is registered, or required or entitled to be registered, under the Ship Registration Act 1992. Ships that are required or entitled to be registered are ships that are owned, or majority owned, by New Zealand citizens, on demise charter to New Zealand-based operators, jointly owned by New Zealand citizens and people entitled to reside in New Zealand indefinitely, or majority owned by people entitled to reside in New Zealand indefinitely.

16. We have considered whether the Bill’s different treatment of non-citizens who are not entitled to reside in New Zealand indefinitely, compared with citizens and those entitled to reside in New Zealand indefinitely, could be said to discriminate on the basis of national origin.
    
17. It is arguable whether or not s 19(1) is engaged because the Bill distinguishes between people based on whether they are resident in New Zealand indefinitely, rather than purely on the basis of their national or ethnic origins.
    
18. If s 19(1) is limited, we consider it a justified limitation under s 5 of the Bill of Rights Act. In coming to this conclusion we note that the limitation applies only to the registration of fishing vessels. The limitation is rationally connected to the Bill’s objective (to improve employment conditions, safety and fisheries management on foreign charter vessels), as it has the effect of subjecting all vessels to full New Zealand jurisdiction, thereby strengthening the ability to enforce New Zealand laws.
    

Conclusion

19. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Roger Howard

Acting Chief Legal Counsel Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.