Background

The Appellant, Mr Teddy, was the skipper of a fishing vessel, the San Pietro.  He was also a protestor against oil exploration off New Zealand’s coast.  He steered his fishing vessel to and fro across the bow of an oil exploration vessel, the Orient Explorer.  This occurred outside of New Zealand’s 12 mile territorial sea, on the High Seas.  The San Pietro was a New Zealand ship under the Maritime Transport Act as it was entitled to be New Zealand registered.  

Mr Teddy was charged with an offence under s 65(1)(a) of the Maritime Transport Act of operating a vessel in a manner that caused unnecessary risk to the Orient Explorer.  He was also charged with resisting police acting in execution of duty.  

Mr Teddy defended the charges on the basis that there was no case to answer as the New Zealand police had no jurisdiction in relation to conduct beyond the 12 nautical mile limit.  The District Court accepted this argument.  It held that the Maritime Transport Act did not apply beyond the 12 nautical mile limit to ships on the High Seas.  

High Court Decision

The police appealed to the High Court, arguing that the Maritime Transport Act applied extraterritorially.  The High Court agreed holding that the Maritime Transport Act applied extraterritorially to New Zealand ships on the High Seas.  This was, it held, by necessary implication arising from New Zealand’s obligations in international law and the statutory context of the Act.  

One of the express statutory purposes of the Maritime Transport Act is to ensure that New Zealand’s obligations under the UN Convention of the Law of the Sea (“UNCLOS”) are met.  UNCLOS requires all nations to regulate ships carrying their flag beyond the territorial sea.  This is to ensure that ships are used responsibly on the High Seas.  No state other than New Zealand has jurisdiction over New Zealand vessels on the High Seas.  New Zealand, therefore, has an obligation to regulate those vessels on the High Seas through the application of the Maritime Transport Act and such other laws as necessary.  

The High Court quashed the District Court decision and remitted the matter back to the District Court for the resumption of the defended hearing.  Mr Teddy appealed to the Court of Appeal.  

Court of Appeal Decision

The Court of Appeal dismissed the appeal.  It agreed that the Maritime Transport Act applied extraterritorially to New Zealand ships but on different grounds.  

The judgment goes through the basics of statutory interpretation – an exercise which begins with the text and purpose of the Act which, the Court said, is to be interpreted in a practical and realistic manner to ensure that the Act works as intended.  The Court placed reliance on ensuring that statutes are read consistently with New Zealand’s relevant international treaty obligations.  

A previous Supreme Court decision,2  which bound the Court of Appeal, had held that New Zealand statutes do not have extraterritorial effect unless that is signalled by express language or necessary implication.  In order to determine whether either circumstance applied, the Court of Appeal stated, one is drawn back to examining the statutory text in light of purpose. 

The Court first examined the text of the section at issue, s 65, and considered that it contained no direct indication whether it was to apply extraterritorially.  However, the Court commented that the public safety purpose of the section did not support a territorial limit on its application.  It went on to examine the rest of the Act and identified s 413 as potentially relating to the extraterritorial reach of the Act.  That section relates to the place where offences are deemed to be committed and provides:

For the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed either in the place in which the same actually was committed or in any place in which the offender may be. 

The Court held that this provision was intended to extend the jurisdiction of the New Zealand courts in respect of any offence under the Maritime Transport Act to the place that the offender is – so that a New Zealand person alleged to have committed a Maritime Transport Act offence outside the territorial jurisdiction could nevertheless be tried in New Zealand.  This interpretation was consistent with an early case3  and the Court relied upon the fact that, if the earlier case were wrong in its interpretation, Parliament had had plenty of time to clarify the meaning of s 413 but had not done so.  The Court held, therefore, that s 65 applied extraterritorially as s 413 expressly conferred extraterritorially jurisdiction and, alternatively, by necessary implication.  

It was supported in its conclusion by New Zealand’s obligation under UNCLOS which require it to assume jurisdiction over ships flying its flag and their masters in respect of administrative, technical and social matters as well as to take measures for ships flying its flag to ensure safety at sea. The Court dismissed the appeal and remitted the matter to the District Court for resumption of the defended hearing. 

Comment

Although this decision no doubt is of great importance to Mr Teddy, its future importance may be reduced as the legislative scheme has been amended since the case began.  The Maritime Transport Act was amended to state expressly that it is to apply extraterritorially to New Zealand ships (s 4(3)). New legislation has also been introduced which creates specific new offences relating to the interference with a ship used for mining operations (Crown Minerals Amendment Act).  

_{1  Teddy v New Zealand Police [2014] NZCA 422.
2  Poynter v Commerce Commission [2010] NZSC 38, [2010] NZLR 300.}

A version of this article appeared in the International Law Office newsletter on 29 October 2014 by Felicity Montei