Wildlife (Powers) Amendment Bill. Initial briefing to the Local Government and Environment Select Committee

Wildlife (Powers) Amendment Bill Initial briefing to the Local Government and Environment Select Committee 9 June 2016

Cover image credits: Jewelled Gecko: Thomas Ziegler 2015 Whio: Tyronne Smith 2008 Kereru: Janice McKenna 2012

Contents Summary: Wildlife (Powers) Amendment Bill... 1 1 Policy reasons for the Bill... 2 2 Background: The context of the Bill... 2 2.1 The Wildlife Act 1953... 2 2.2 Examples and effects of offences... 2 2.3 Activities to deter offending... 3 2.4 What is needed for successful enforcement... 3 2.5 DOC s enforcement officers... 4 2.6 Fish and Game s enforcement activities... 4 3 The Bill s significant parts... 5 4 How the Bill changes current law... 5 4.1 The scope of the Bill... 5 4.2 The proposed powers in the Bill... 6 4.2.1 Four new standard powers (clauses 5, 7)... 6 4.2.2 A limited power of arrest (clause 5, new 39D, 39E)... 7 4.2.3 Updating an existing ability to call for assistance (clause 4)... 7 5 Consistency with legal principles and other Acts... 8 5.1 Principles of the Treaty of Waitangi... 8 5.2 New Zealand Bill of Rights Act 1990, Human Rights Act 1993... 8 5.3 Privacy Act 1993... 8 5.4 Search and Surveillance Act 2012... 9 6 Ranger training... 9 Appendix 1: The relationship between existing and proposed new standard powers... 11

Summary: Wildlife (Powers) Amendment Bill The Wildlife (Powers) Amendment Bill updates and enhances the enforcement powers in the Wildlife Act 1953. The Bill was introduced on 2 December 2015, and had its 1 st Reading on 29 March 2016. It has received seven submissions. The Select Committee report back is due by 29 September 2016. The Wildlife Act absolutely protects most of New Zealand s native birds; all native reptiles, frogs, and bats; some specified native land and marine invertebrates; and 8 marine fish species. This means that it is an offence to hunt, kill, take, trap, or capture these species; or to rob, disturb, or destroy the nest of protected birds. However, although DOC does many activities to inform people about protected wildlife, they are regularly hunted or taken, killed by domestic dogs, or smuggled out of New Zealand. Even low levels of such offending can significantly affect species already threatened by introduced predators and the loss of habitat. DOC has about 200 rangers nationwide who are warranted to respond to offences. All have undergone a training course which includes law enforcement ethics and relevant legislation, Treaty rights, officer safety, and reasonableness requirements. Successful prosecutions often rely on the offender admitting the offence. If this does not occur the powers that are available to rangers to thoroughly investigate offences and gather evidence become very important. However the Wildlife Act s enforcement powers have not been updated for 60 years so have significant gaps that can hinder investigating offences, or prevent prosecution when this is necessary. Ineffective enforcement decreases the likelihood of offenders being apprehended and prosecuted so can encourage non-compliance. The objective of the Bill is to improve enforcement and reduce offending by: Providing four new standard powers that can be used for all offences under the Act, and are available to fulltime DOC rangers. These include a power to: Seize a wider range of evidential material; Stop a person; Intervene to prevent or stop offending; Require offenders to give identifying information. Providing a power of arrest for serious offences against absolutely protected wildlife. This power is only available to full time DOC rangers that are specifically warranted for it. Police constables, Customs officers, fisheries officers and specified NZ Defence Force officers, may also exercise this power, as they regularly support DOC in joint-agency operations. Updating rangers ability to call for assistance. All these new powers include requirements that rangers must meet to ensure they exercise powers properly, professionally and reasonably. The Bill is also consistent with the NZ Bill of Rights Act 1990 and the Human Rights Act 1993; rangers must comply with the Privacy Act1993 when gathering, storing and using identification information from offenders; and the Search and Surveillance Act 2012 also applies. NZ Fish and Game rangers manage game bird hunting using the existing enforcement powers in the Wildlife Act. The Bill does not change this, but limits access to the new powers in the Bill to fulltime state sector employees. 1

1 Policy reasons for the Bill The objective of this Bill is to improve enforcement and reduce offending against New Zealand s protected indigenous wildlife. The offences set out in the Wildlife Act 1953 seek to protect the public s interest in wildlife conservation. However the enforcement powers in the Wildlife Act have significant gaps that can make it difficult to investigate offences, or to prosecute offences when this is necessary. Ineffective enforcement decreases the likelihood of offenders being apprehended and prosecuted so can encourage non-compliance. With the addition of the powers in the Bill the Wildlife Act will have the enforcement powers necessary to achieve the Bill s purpose in relation to managing offending. 2 Background: The context of the Bill 2.1 The Wildlife Act 1953 The Wildlife Act 1953 determines the protected status of New Zealand s native and introduced wildlife species and provides for their management. It sets out what wildlife is absolutely protected, is partially protected, may be hunted subject to the Minister s notification, is game, or is unprotected. The Act also establishes, protects and manages wildlife refuges, wildlife sanctuaries, and wildlife management reserves. The Act absolutely protects most native birds; all native reptiles, frogs, and bats; some specified native land and marine invertebrates; and 8 marine fish species. Most of these protected species are found only in New Zealand. The protection applies in the same way whether the wildlife is on protected land, private land or Maori land, and extends out to the 200 nm limits of New Zealand s EEZ. It means that, without proper authorisation, the species cannot be collected from the wild, hunted, killed, possessed, held in captivity, sold, or exported. 2.2 Examples and effects of offences Despite this protection offending regularly occurs. Examples include: Taking, hunting or killing protected birds. Most recently this has involved people killing kereru, whio, and black-billed gulls; and kiwi, oystercatchers, herons, plovers, and shags have been also been taken or killed in the past; Setting possum leg-hold traps on the ground so they accidentally catch weka or kiwi; Taking dogs into wildlife refuges; Trying to smuggle tuatara, parrots, and (most recently) geckos out of NZ since 2010 seven foreign nationals have been convicted of attempted smuggling involving 68 jewelled geckos. Such offending can significantly affect native species that are already threatened by introduced predators and the loss of habitat. Even low levels of illegal take can have significant effects for example, illegal collection appears to have been a major factor in the decline and imminent extinction of at least one gecko population on the Otago Peninsula. Even if illegally taken wildlife is regained, it may not be able to be returned to 2

its original wild populations if there is a risk of introducing disease. Illegal take can also compromise research, and discourage community efforts at conserving the species. 2.3 Activities to deter offending DOC carries out many activities to promote awareness of New Zealand s wildlife and protected natural areas including, among other things, through its website, publications, media work, school education programmes, signs, visitor centres, and during direct contact between DOC staff and the public. These help to deter offending through social expectations and peer pressure. However these activities are not sufficient. Offending does occur regularly and effective enforcement remains essential. This Wildlife (Powers) Amendment Bill focuses solely on increasing the likelihood of offenders being successfully apprehended and prosecuted. However other mechanisms to deter and manage offending include: Strengthening the potential consequences of conviction; and Encouraging better international enforcement against illegal trade in key market countries (in relation to international smuggling). The penalties for offences provide a key deterrence. In 2013 the penalties in the Wildlife Act (and in five other conservation-related Acts) were significantly increased through the Natural Heritage Protection Act. Higher maximum penalties better hold offenders accountable for harm done to public resources; and make it easier for the Courts to tailor sentences according to the circumstances of the offence. For the Wildlife Act, maximum penalties for hunting, killing or disturbing absolutely protected wildlife were increased to two years or $100,000 or both for non-commercial offending. For commerciallymotivated offending such as wildlife smuggling, maximum penalties became five years imprisonment or a $300,000 fine, or both. Deterrence against wildlife smuggling is further increased because: The higher maximum penalties for commercially motivated offending make it more likely that a person convicted for attempted smuggling will trigger Immigration Act provisions that render a person ineligible to enter or be in New Zealand for 10 years. New Zealand s geckos are now listed on Appendix II of the Convention on International Trade in Endangered Species (CITES). This means they will be subject to better international enforcement against illegal trade. 2.4 What is needed for successful enforcement The examples of successful prosecutions that have occurred have generally relied on the offender admitting the offence. But this does not always occur. If the offender does not co-operate, the powers that are available to thoroughly investigate offences and gather evidence become very important. The penalties in the Wildlife Act were significantly increased in 2013, but the Act s enforcement powers have not been updated for 60 years. The enforcement powers in the Wildlife Act therefore have significant gaps that can hinder investigating offences, or prevent prosecution when this is necessary. For example: When a ranger is investigating an offence involving wildlife they currently do not have the power to temporarily stop people from leaving the scene of an 3

offence. Being able to do so gives rangers sufficient time to carry out enquiries and to exercise other enforcement powers if appropriate, and this can be particularly important in situations where an offender is trying to evade a ranger or hide evidence. This is a particular problem in cases of wildlife smuggling where there is a significant risk of offenders absconding because they are usually short-term visitors to New Zealand, travelling in campervans. The Act also currently only allows rangers to seize a narrow range of evidence relating to an offence, namely the wildlife taken, property used in committing the offence (such as a net), and objects used for carrying wildlife (such as a bag). The Act does not allow rangers to seize other items that are now commonly used and could have value as evidence such as documents, mobile phones, cameras or computers. This is important as sufficient evidence is necessary to build a case and prove intent (for example, that an offence is commercially motivated and therefore warrants higher penalties). A suspected offender s accurate name, address, and date of birth are essential to file charges in court. All rangers must therefore collect this information when investigating an offence, and without this power would have to rely on the person giving accurate and full information voluntarily. A statutory power helps to deter offenders as it becomes an offence to refuse to comply or to give false details 2.5 DOC s enforcement officers DOC has about 200 active rangers who act throughout New Zealand and respond to offences under the various Acts that DOC administers. These rangers generally are experienced full-time staff who have worked for DOC for some time; some are ex-police officers and so familiar with compliance ethics and practice. The rangers usually do other conservation work as well as enforcement activities. Rangers are appointed under the State Sector Act and are specifically warranted to be enforcement officers (the Wildlife Act also allows DOC to appoint suitable members of the public to be part-time or honorary rangers, but DOC hasn t done this for many years). A warranted officer may be appointed for a particular area, or to act generally throughout New Zealand. The warrant may specify the powers they have. Police are also deemed to be warranted enforcement officers under conservation legislation, and DOC maintains close relations with them. DOC seeks assistance from the police if there is any indication of likely violence or other difficulties, and, where practicable, for searches of premises. However DOC generally needs to do its own enforcement work as conservation enforcement activities frequently occur in remote locations, and specialist knowledge and skills are often needed such as understanding the legislation, assets, and values. DOC rangers also often need to be able to act quickly, in order to apprehend an offender or in order to prevent major harm to conservation values. 2.6 Fish and Game s enforcement activities The New Zealand Fish and Game Council (Fish and Game) is responsible for coordinating the management, enhancement, and maintenance of sports fish (e.g. trout, 4

salmon, tench) under the Conservation Act 1987, and game birds (e.g. some ducks, black swan, pheasants and pukeko), under the Wildlife Act 1953. Fish and Game has 52 full-time staff that are rangers, and 222 honorary rangers. Because Fish and Game manages sports fish, and game birds throughout NZ, often in remote places, it relies heavily on its honorary rangers for enforcement. The most common game hunting offending that Fish and Game investigates include: hunting without license, exceeding bag limits, using lead shot over water, providing false or misleading information, and killing game birds out of season. Fish and Game rangers also sometimes apprehend game bird hunters who have killed absolutely protected species (e.g. teal, shags, and herons). Fish and Game rangers enforce game bird hunting regulations using the existing enforcement powers in the Wildlife Act. Both fulltime and honorary Fish and Game rangers have access to the same existing powers in the Act as DOC s enforcement officers (Appendix 1). The Bill does not change this, but it does not provide either fulltime or honorary Fish and Game rangers with access to the new powers in the Bill. Rather, the new powers are limited to fulltime state sector employees. The exception is the ability in the Act for rangers to call for assistance both the existing and updated ability is available to all rangers (both DOC and Fish and Game, and both fulltime and honorary). 3 The Bill s significant parts The contents gives the title of the Act, provides that it comes into force on the 28 th day after it receives the Royal assent, and states that it amends the Wildlife Act 1953. Part 1 sets out the new powers, who has access to them, and the safeguards to ensure the powers are used reasonably. The powers include an updated power for rangers to call for assistance, four new standard powers, and a limited power of arrest. Part 2 sets out two consequential amendments to the Wildlife Act 1953. The new offence of failing to give or produce evidence of identity, or giving false information (see 3.3.4): Replaces the existing offence in s 67F(6)(h) (which lists the penalties for various offences); Is also added to 68AB(5) as a mens rea offence. Part 2 also amends a reference to the Wildlife Act in the schedule of the Search and Surveillance Act 2012. 4 How the Bill changes current law 4.1 The scope of the Bill The Bill updates and enhances the enforcement powers available to investigate and prosecute offences against wildlife under the Wildlife Act 1953. The Bill does not affect any other legislation. The Bill does not affect the Wildlife Act s core principles, such as the protected status of wildlife, or how wildlife is managed. 5

The Bill will not affect people or businesses unless their activities break the law in relation to wildlife. The new enforcement powers proposed in the Bill do not apply to: The accidental or incidental take of protected marine wildlife (e.g. seabirds during fishing); The take or killing of wildlife for cultural purposes, scientific research, or management, when it is properly authorised; Marine mammals (as these are dealt with separately under another Act); Freshwater fish, rabbits, or hares (as they are not included in the definition of wildlife); Most marine fish species and most marine invertebrates (as marine species are not protected by the Act unless set out in Schedule 7A). 4.2 The proposed powers in the Bill 4.2.1 Four new standard powers (clauses 5, 7) The Bill provides four new standard powers. These powers: Complement the existing enforcement powers in the Wildlife Act; Can be used for all offences under the Act; May only be used by fulltime DOC rangers. They are not made available to parttime or honorary DOC rangers, or to Fish and Game rangers (whether fulltime or honorary). Power to seize evidential material (clause 5, new 39A) This power allows a ranger to seize any evidential material (including any property that could be or contain evidence of an offence). The definition of evidential material is now wider, and aligns with that in the Search and Surveillance Act 2012 (meaning...evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation... ). To use this power the seized material must be of relevance to the investigation of the offence, and the ranger must reasonably believe it is so relevant. Power to stop a person (clause 5, new 39B) Stopping in this context means temporarily ensuring that the person etc under investigation remains and does not leave the scene. To do so, a ranger might, for example, block an access track, or lock a gate. To use this power the ranger must have reasonable cause to stop the person, and the person may only be stopped for a period that is reasonable in the circumstances. Power to intervene to prevent or stop offending (clause 5, new 39C) The power to intervene means that a ranger may take action to prevent an offence about to occur, or to stop offending in progress. Examples might be a ranger tripping traps set 6

to catch protected species; or intervening to prevent a hunter who is pursuing protected species. To use this power the ranger must believe on reasonable grounds that the person is committing or is about to commit an offence. In addition, the action the ranger takes must be reasonable in the circumstances Offenders to give identifying information (clause 7, new 66A) A person found offending is currently required to tell a ranger their name and address when requested, but is not required to provide either their date of birth or verify their identity. This new power provides the ability for a ranger to require the offender to provide their date of birth and to provide evidence of their name, date of birth and address. The offender commits a further offence if they fail to do so or gives false information. The information can only be required if the ranger has reasonable grounds to believe the person has committed, is committing, or is about to commit an offence. The person must also have a reasonable time to produce the evidence. 4.2.2 A limited power of arrest (clause 5, new 39D, 39E) DOC currently has some rangers trained and warranted in a power of arrest that is available under the Trade in Endangered Species Act 1989 (TIES Act). These rangers are able to conduct joint-agency activities in conjunction with Customs, the New Zealand Police, and the Ministry of Primary Industries. This TIES Act arrest power supports Wildlife Act enforcement but does not replace the need for an arrest power in the Wildlife Act itself as many absolutely protected wildlife species are not covered by the TIES Act. The Bill therefore provides a power of arrest which is limited to serious offences against absolutely protected wildlife ( such as capturing, possessing, hunting, killing, buying or selling, liberating, or exporting the wildlife); and to persons obstructing the investigation of such offences. The Bill only makes the limited power of arrest available to full time DOC rangers that the Director-General specifically warrants for this power. The Bill also allows police constables, Customs officers, fisheries officers and specified NZ Defence Force officers, to exercise this power, as they regularly support DOC in joint-agency conservation compliance operations. The person making the arrest must have reasonable grounds to believe the person has committed or is committing a specified offence. They must also identify themselves, provide evidence of their warrant, and tell the person they are being arrested under the Wildlife Act and the reason for the arrest. The arrested person must be delivered into the custody of a police constable as soon as is reasonably practical. The new arrest power, and the four new standard powers, may reduce DOC s calls on Police time and resources, but will not remove the need for continued cooperation between the two agencies. 4.2.3 Updating an existing ability to call for assistance (clause 4) The Wildlife Act currently includes the ability for any ranger to call on any male person for assistance; and while the person is providing that assistance, the Act gives them the powers of a ranger (Wildlife Act s 39(1)(e)). The Bill updates this so that a ranger can now call on any person for assistance. 7

In addition, while the person is assisting, the Bill makes them subject to the control of the ranger; and to s 113 Search and Surveillance Act 2012 (which sets out the powers that the person has when assisting with a search). 5 Consistency with legal principles and other Acts All the existing enforcement powers in the Wildlife Act, and the new powers proposed in the Wildlife (Powers) Amendment Bill, include safeguards that rangers must meet. These requirements help to ensure agencies exercise powers properly, professionally and reasonably. 5.1 Principles of the Treaty of Waitangi Section 4 of the Conservation Act 1987 requires DOC to give effect to the principles of the Treaty of Waitangi when interpreting and administering the Act. This Conservation Act requirement also applies to other conservation legislation, including the Wildlife Act, to the extent that it is not inconsistent with those Acts. 5.2 New Zealand Bill of Rights Act 1990, Human Rights Act 1993 The rights in the BORA that are most relevant to this Bill are the right to freedom of expression (which includes the right to say nothing), the right to be secure against unreasonable search and seizure, and the right not to be arbitrarily arrested or detained. The Bill is consistent with these rights. The power to require offenders to identify themselves is justified as it serves an important objective, the information required is factual, and the ranger must have reasonable grounds to believe that the person has committed, is committing, or will commit an offence. The powers to seize evidence, stop an offender, and arrest an offender, are limited to the regulatory purpose of the Bill and contain requirements to ensure that the power is used reasonably. For example, there are various mechanisms for ensuring that the use of seizure powers is reasonable in the first place (legislative safeguards, training, standard operating procedures, supervision). The Bill requires that any evidence seized must be relevant to the investigation. This means that a ranger cannot simply seize items without justification. If a ranger did not have reasonable grounds the seizure would be unlawful; a court would be likely to rule that evidence inadmissible, and any prosecution relating to that seized property may fail. Ranger training therefore stresses the importance of acting in good faith and with reasonable grounds before any search or seizure. Rangers can have their warrant removed for incapacity or misconduct. 5.3 Privacy Act 1993 All public agencies must comply with the Privacy Act 1992 in relation to any personal information that they collect. As required by that Act, the identification information that rangers collect (name, address, date of birth, and evidence to verify this) is for a lawful purpose and is necessary for that purpose (it is essential to file charges in court). 8

All rangers must also comply with the Privacy Act when storing and using the information on an offender s name, address, and date of birth. 5.4 Search and Surveillance Act 2012 The purpose of the Search and Surveillance Act 2012 is to ensure that search, seizure, and surveillance is consistent with human rights values, takes into account advances in technologies, and has effective and adequate tools. That Act applies to all law enforcement agencies with search powers, including DOC. For example, the Act sets out the rights of owners and others with an interest in seized property, and includes mechanisms for an owner to seek that a seized item is returned. The Act also requires all uses of search and seizure powers by agencies to be reported to Parliament annually. Part 4 of the Search and Surveillance Act, which includes general provisions in relation to search, surveillance, and inspection powers, applies to all the new powers in the Bill with the exception of the power to require the person to give their date of birth and provide evidence to verify their identity. 6 Ranger training DOC adopted a National Compliance Strategy in 2009. Since then, all officers deemed suitable to be warranted must attend a seven day Warranted Officer s Course prior to being warranted. The training course includes: Law enforcement ethics and relevant legislation, including the need to comply with the NZ Bill of Rights Act 1990 and the Privacy Act 1993; Treaty rights and the protocols around cultural take/harvest; A compulsory 1½ day safety module for all staff, delivered by an external training provider. This emphasises officer safety as the paramount concern for ranger staff (DOC s policy is that the rangers should only take enforcement actions when it is safe and appropriate to do so); In depth coverage of the reasonableness requirements for enforcement powers; Interviewing skills, documentation, evidence, preparing prosecution files, and the particular requirements for dealing with young people. If the Bill comes into force, information on the changes to the powers and their various requirements would be communicated through DOC s operations managers. Rangers would not be able to use or exercise any of the powers until they had successfully completed a refresher training programme scheduled for 2016/2017. This refresher training also includes further safety training sessions The proposed new powers are also variously found in other conservation-related legislation so enforcement officers are already familiar and trained in them. The difference is that the Bill would mean these existing powers will now be extended to Wildlife Act offences. For example: 9

To intervene to prevent an offence: Conservation Act, Reserves Act, National Parks Act To stop a person: the Marine Reserves Act (an equivalent power to apprehend a person) To seize a wider range of evidence: Marine Mammals Protection Act Requiring evidence of identification: Marine Reserves Act, The power of arrest: Trade in Endangered Species Act To call on anyone for assistance: Conservation Act Appropriate training would also be required before a person would be warranted for the power of arrest. DOC also intends to limit this power to only a few staff with sufficient suitable experience and expertise some of these are likely to be specialist enforcement officers with extensive experience and/or a police background who are already skilled in this area; some would be already trained and warranted to use a power of arrest available under the TIES Act.DOC will seek the support and expertise of the police and other agencies that have the power of arrest (e.g. MPI, Customs) when developing appropriate supporting policies and procedures for the power of arrest. 10

Appendix 1: The relationship between existing and proposed new standard powers New or updated power proposed in the Bill To seize evidence (what can be seized if relevant) Require information Enforcement powers in the Wildlife Act 1953 Section in the Act or Bill Rangers with access Animals, eggs or nests illegally taken 39(1)(a) Bags, containers, etc used for carrying the above 39(1)(c) Nets, traps, firearms, ammunition 39(1)(b) Boats, vehicles, engines 39(1)(b) Instruments, appliances, devices 39(1)(b) Any other evidential material (e.g. phones, cameras, documents, computers etc) Cl 6: add s 39(1)(ca) Require offender to give their name and address 66(1) Cl 9: new 66A(1) Require date of birth; and evidence of name, birth date, and address Cl 9: add 66A(2) DOC F&G Prevent or stop an offence To stop and search Require the offender to desist from the offence 66(1) Intervene to prevent or stop the offence Cl 7: add 39B Any vehicle, riding or pack animal, vessel, aircraft, or other device for carriage or transportation; 39(1)(d) Parcel, package, case, bag, other container, in transit 39(1)(d) To stop Any person or thing Cl 7: add 39A To enter and search Call for assistance Any land, hut, tent, caravan, bach, etc (excludes home, garden, residence); shop, office, factory 39(1)(f)(i), (iii) Vehicle, vessel, aircraft; Any transport found on a lake, river, pond etc. 39(1)(f)(ii), (iii) Call on any male person over 18 to aid or assist, when reasonable necessity exists for calling (and person so called shall be deemed to have all the powers of a ranger appointed under this Act) Replace with: call on any person for assistance. (If a search, the person acts in accordance with S&S Act s 113; if another power, the person acts under the ranger s direction and supervision) 39(1)(e) Cl 6: new s 39(1)(e) 11