In Teddy v New Zealand Police the Court of Appeal has provided clarification on New Zealand's jurisdiction over New Zealand ships on the high seas.(1)
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 on the high seas, outside of New Zealand's 12-mile territorial sea. The San Pietro was a New Zealand ship under the Maritime Transport Act, as it was entitled to be New Zealand registered.
Teddy was charged with operating a vessel in a manner that caused unnecessary risk to the Orient Explorer, an offence under Section 65(1)(a) of the Maritime Transport Act. He was also charged with resisting police acting in execution of duty.
Teddy defended the charges on the basis that there was no case to answer, as the New Zealand police have no jurisdiction in relation to conduct beyond the 12-mile limit. The district court accepted this argument. It held that the Maritime Transport Act does not apply beyond the 12-mile limit to ships on the high seas.
High Court decision
The police appealed to the High Court, arguing that the Maritime Transport Act applies extraterritorially. The High Court agreed, holding that the act applies extraterritorially to New Zealand ships on the high seas, 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 their 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; therefore, New Zealand has an obligation to regulate those vessels 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 resumption of the defended hearing. 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 applies extraterritorially to New Zealand ships, but on different grounds.
The court went 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 it works as intended. The court also placed reliance on ensuring that statutes are read consistently with New Zealand's relevant international treaty obligations.
A previous Supreme Court decision, 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.(2) The Court of Appeal stated that it was necessary to examine the statutory text in light of purpose, in order to determine whether either circumstance applied.
The court first examined the text of the section at issue, Section 65, and considered that it contains no direct indication as to whether it should apply extraterritorially. However, the court commented that the public-safety purpose of the section does not support a territorial limit on its application. The court went on to examine the rest of the act and identified Section 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 where the offender is located, so that a New Zealand person alleged to have committed a Maritime Transport Act offence outside the territorial jurisdiction can nevertheless be tried in New Zealand. This interpretation was consistent with an earlier case and the court relied on the fact that, if the earlier case were wrong in its interpretation, Parliament had had plenty of time to clarify the meaning of Section 413, but had not done so.(3) The court held, therefore, that Section 65 applied extraterritorially – as Section 413 expressly confers extraterritorial jurisdiction – and, alternatively, by necessary implication.
The court was supported in its conclusion by New Zealand's obligations 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 is no doubt of great importance to Teddy, its future importance may be reduced, as the legislative scheme has been amended since the case began. The Maritime Transport Act has been amended to state expressly that it applies extraterritorially to New Zealand ships (Section 4(3)). New legislation has also been introduced which creates specific new offences relating to the interference with a ship being used for mining operations (Crown Minerals Amendment Act).
Felicity Monteiro
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