The High Court recently clarified the extent of New Zealand's jurisdiction over New Zealand ships on the high seas in New Zealand Police v Teddy.(1)

Background

The case began as a prosecution against Mr Elvis Teddy. Teddy was the skipper of a fishing vessel, the San Pietro, which participated in protests against undersea oil exploration off the coast of the North Island of New Zealand. The crown alleged that Teddy had steered the San Pietro to and fro before the bow of an oil exploration vessel, the Orient Explorer. Teddy was charged with committing an offence under Section 65(1)(a) of the Maritime Transport Act 1994 by operating the fishing vessel in a manner that caused unnecessary risk to the Orient Explorer and the San Pietro. He was also charged with committing an offence against Section 23(a) of the Summary Offences Act 1981 for resisting a constable acting in the execution of his duty when the constable boarded the San Pietro to arrest Teddy. The prosecution submitted that the San Pietro was a New Zealand ship, as defined by the Maritime Transport Act, as it was entitled to be registered under the Ship Registration Act 1992.

District court decision

Teddy defended the charges, submitting that there was no case to answer; he argued that the police did not have jurisdiction to arrest him for alleged breaches of the Maritime Transport Act and Summary Offences Act in respect of conduct which occurred outside New Zealand's 12-nautical-mile territorial sea. The district court ruled that the charges were nullities, because Section 65(1)(a) of the Maritime Transport Act does not apply beyond New Zealand's territorial sea. The New Zealand Police filed an appeal by way of case stated against the district court ruling on certain questions of law.

High Court decision

On appeal, the High Court considered whether Section 65(1)(a) applies beyond New Zealand's territorial sea. The court recorded that the San Pietro was a New Zealand ship. The court affirmed that New Zealand, as the flag state, has exclusive jurisdiction over New Zealand ships on the high seas by reference to a decision of the New Zealand Court of Appeal(2) and to relevant articles of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to which New Zealand is a party. Teddy accepted that, as the flag state, New Zealand had exclusive jurisdiction over the San Pietro outside New Zealand's territorial limit, but argued that the Maritime Transport Act does not have extraterritorial effect because it does not expressly state so. Teddy relied on a Supreme Court decision, Poynter v Commerce Commission, which, in considering the jurisdictional reach of New Zealand's competition law statute, sets out the general proposition that legislation does not have extraterritorial effect save for express statutory wording or necessary implication.(3)

The High Court first considered the police's submission that New Zealand ships are part of New Zealand territory and, therefore, there was no need to consider the extraterritorial application of New Zealand law. While the court acknowledged that some commentators support this view, it considered that such a concept is artificial and unnecessary, and that the better approach is to treat ships registered in New Zealand as being outside of New Zealand's territory.

Accordingly, the court had to consider whether the Maritime Transport Act applies extraterritorially, either through its express wording or by implication. Poynter held that where statutes are silent on extraterritorial application, the content and purpose of the legislation may overcome the presumption that there is no such application.

Although the court noted that there is no express provision in the Maritime Transport Act stating that the act as a whole applies beyond the territorial sea, and considered it necessary to bear in mind the presumption against reading criminal statutes widely (which might caution against identifying extraterritorial application from statutory context), it concluded that the act applies extraterritorially by necessary implication arising from New Zealand's international law obligations and the statutory context of the act. One of the express objects of the act is to ensure that New Zealand's obligations under conventions such as UNCLOS are implemented. Under UNCLOS, New Zealand has a legal obligation to regulate New Zealand ships beyond its territorial sea. This could not be met if the act did not have extraterritorial effect. In particular, Section 65(1)(a) must apply beyond the territorial sea to New Zealand vessels, as – under UNCLOS – New Zealand has a responsibility to:

• ensure that its ships and those using them act responsibly on the high seas;
• exercise its jurisdiction over navigational matters; and
• arrest seafarers who breach New Zealand's navigational laws.

No other state has the ability to exercise jurisdiction over New Zealand-flagged state ships on the high seas. Section 65(1)(a) must apply extraterritorially to satisfy New Zealand's international obligations.

As to statutory context, the court noted that Section 8 of the Crimes Act 1961 provides for the prosecution of offences that occur on board Commonwealth ships, but excludes the Maritime Transport Act from this jurisdiction. The court considered that it would be an odd result and untenable for the Maritime Transport Act, which specifically regulates maritime offences, not to apply beyond New Zealand's territorial sea when New Zealand's general criminal law (under the Crimes Act) applies beyond the territorial sea to all acts occurring on Commonwealth ships. The only reasonable interpretation, the court considered, is that the Maritime Transport Act applies extraterritorially to New Zealand ships. In addition, Section 415 of the Maritime Transport Act provides that a proper officer in a foreign country or a master of a New Zealand ship can, if a seafarer has committed an offence, take actions to send a seafarer to New Zealand or to a country other than New Zealand which is capable of cognisance of the offence. This section is premised on seafarers on New Zealand ships on the high seas being subject to New Zealand law. Another provision of the Maritime Transport Act, Section 413, provides that for the purpose of giving jurisdiction, every offence will be deemed to have been committed either in the place in which the offence was actually committed or in any place in which the offender may be. The court considered that while it was difficult to read this section as expressly conferring jurisdiction over New Zealand ships beyond the territorial sea, it would be absurd for Section 413 to relate only to offences committed in New Zealand's territorial waters while Section 415 allowed seafarers to be prosecuted elsewhere in the world.

Accordingly, the decision of the district court that the informations laid against Teddy were nullities was quashed. The matter has been remitted to the district court for resumption of the defended hearing. In the meantime, Teddy has sought leave to appeal to the Court of Appeal on the issue of jurisdiction.

Comment

The district court concluded that Section 65(1)(a) of the Maritime Transport Act did not apply extraterritorially, relying on the presumption that statutes do not apply outside of the relevant jurisdiction, unless set out explicitly. On appeal, the High Court took a broader approach to the interpretation of this provision. The court considered the statutory context and the purposes of the Maritime Transport Act, which include the fulfilment of New Zealand's obligations under international law (including UNCLOS). To fulfil these obligations, Section 65(1)(a) needed to apply extraterritorially.

While the High Court has now held that there is jurisdiction over a New Zealand vessel outside the territorial sea, it is surprising that the Maritime Transport Act does not expressly state so. However, a bill before Parliament proposes to make clear that the Maritime Transport Act as a whole is intended to apply to New Zealand vessels outside of the New Zealand territorial sea. Further, under a supplementary order paper introduced to another bill, a new offence is being proposed which would make it an offence to interfere with a ship used for mining operations. This will apply when the mining ship is in the New Zealand territorial sea (12 nautical miles from the coast) or in the exclusive economic zone (200 nautical miles from the coast). If these two bills are passed, they will expressly remove the basis to argue that protestors such as Teddy cannot be prosecuted by the New Zealand authorities because they are beyond the territorial sea.

Endnotes

(1) [2013] NZHC 432.

(2) Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA).

(3) Poynter v Commerce Commission [2010] NZSC 38; [2010] NZLR 300.