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Kaikoura (Te Tai o Marokura) Marine Management Bill (Consistent) (Section 25(c)) [2014] NZBORARp 5 (5 March 2014)
Last Updated: 24 March 2019
Kaikoura (Te Tai ō Marokura) Marine Management Bill
5 March 2014 Attorney-General
Legal Advice
Consistency with the New Zealand Bill
of Rights Act 1990: Kaikoura (Te Tai ō
Marokura) Marine Management Bill
Purpose
- We
have considered whether the Kaikoura (Te Tai ō Marokura) Marine Management
Bill
(‘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
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 25(c) (right to be presumed
innocent). Our analysis is set
out below.
The Bill
- The
Bill establishes a management regime for the coast and sea around Kaikoura (Te
Tai ō Marokura) to protect the marine species,
submarine canyon and other
natural marine habitats in Kaikoura (Te Tai ō Marokura).
- The
Bill establishes:
- a
marine reserve (Hikurangi Marine Reserve);
- a
whale sanctuary (Te Rohe o Te Whanau Pua – Kaikoura Whale
Sanctuary);
- a
fur seal sanctuary (Ohau Point Fur Seal Sanctuary);
- five
customary fisheries areas (two taiapure-local fisheries and three mataitai
reserves);
- an
advisory committee to provide advice to the Minister of Conservation and
Minister responsible for fisheries on any conservation
or fisheries matters
related to the marine and coastal environment within the marine area; and
- fishing
regulations that are specific to the area.
Consistency with the Right to be Presumed Innocent – Section 25(c)
- The
Bill contains a number of strict liability offences. These relate to failing to
comply with a restriction imposed in respect of
a sanctuary 1 and taking or
possessing more than the daily limit for shellfish, finfish, aquatic life or
seaweed specified in the
Fisheries (Amateur Fishing) Regulations 5. The penalty
levels range from maximum fines of $10,000 to
$20,000.
- The
strict liability offences in the Bill raise a prima facie issue of inconsistency
with s 25(c) of the Bill of Rights Act. Section
25(c) provides the “right
to be presumed innocent until
proven guilty according to law”.
Rather than the prosecution proving the defendant’s guilt beyond
reasonable doubt, once
the prosecution has proven the defendant committed the
act in question, the defendant must prove the defence on the balance of
probabilities
to escape liability.
- In
other criminal proceedings a defendant must merely raise a defence in an effort
to create reasonable doubt. For the offences in
the Bill, a defendant who is
unable to prove the relevant statutory defence could be convicted even if
reasonable doubt exists as
to her or his guilt.
Is the limitation justified and proportionate under s 5 of the Bill of Rights
Act?
- In
accordance with the guidance provided by the Supreme Court in Hansen v R
3, we have considered the following factors in assessing whether a departure
from section 25(c) can be justified under section 5:
- the
nature and context of the conduct to be regulated;
- the
ability of the defendant to exonerate themselves; and
- the
penalty level.
- On
balance, we are satisfied that the strict liability offences contained in the
Bill are justifiable. In reaching this conclusion,
we have taken into account
that:
- The
offences are of a regulatory nature designed to better protect the coastal and
marine environment in the Kaikoura region. The
offences address potential
significant harm to natural resources and protected marine wildlife.
- Statutory
defences are available to the defendant 4. The defendant is in a better position
to satisfy the court that the possession
of certain marine and aquatic life in
excess of the daily limit was not taken in breach of the regulations or prove
that breaches
against restrictions imposed for sanctuaries took place in order
to preserve, protect or maintain human life, than for the Crown
to prove the
opposite.
- The
court retains the discretion to impose a lower penalty than the maximum
prescribed in the Bill.
- We
also note that the maximum penalty of five years’ imprisonment is only
available where the offending was commercially motivated,
which must be proved
beyond reasonable doubt.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Tania Warburton
Acting Chief Legal Counsel Office of Legal Counsel
Footnotes
- See
clause 15(1)(a) of the Bill. Examples of restrictions imposed on a sanctuary
include restrictions on access to the Ohau Point
Fur Seal Sanctuary and
restrictions against conducting seismic surveys in the Te Rohe o Te Whanau Pua
– Kaikoura Whale Sanctuary.
- See
Schedule 5 of the Bill, Amendments to Fisheries (Amateur Fishing) Regulations
2013)). Examples of new amendment regulations include
daily limits on specified
species of fish, game sharks and seaweed.
3. Hansen v R
[2007] 3 NZLR 1, (2007) 23 CRNZ 104 (SC).
4. See clause 16(1)(d) of the Bill and regulation 157(1) of the Fisheries
(Amateur Fishing) Regulations 2013).
Disclaimer
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 Kaikoura (Te Tai ō Marokura) Marine Management 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.
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