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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


  1. 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’).


  1. 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


  1. 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).
  2. The Bill establishes:
  1. a marine reserve (Hikurangi Marine Reserve);
  2. a whale sanctuary (Te Rohe o Te Whanau Pua – Kaikoura Whale Sanctuary);
  1. a fur seal sanctuary (Ohau Point Fur Seal Sanctuary);
  1. five customary fisheries areas (two taiapure-local fisheries and three mataitai reserves);
  2. 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
  3. fishing regulations that are specific to the area.

Consistency with the Right to be Presumed Innocent – Section 25(c)


  1. 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.

  1. 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.


  1. 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?


  1. 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:
  1. the nature and context of the conduct to be regulated;
  2. the ability of the defendant to exonerate themselves; and
  1. the penalty level.
  1. 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:
  1. 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.
  2. 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.
  1. The court retains the discretion to impose a lower penalty than the maximum prescribed in the Bill.
  1. 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


  1. 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


  1. 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.
  2. 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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