INTRODUCTION
In the 21st century, crime crosses borders, and governments struggle to keep pace with rapidly-shifting criminal practices. In response, transnational criminal law (TCL) is a form of international law which seeks to create effective means of suppressing this sort of globalised crime. In essence, countries agree to harmonise their responses to a given crime – agreeing to think about the offence the same way. They agree to make sure that the offence is criminalised in their domestic law; agree to cooperate with one another in prosecuting the crime; and agree on the forms of jurisdiction which can be exercised over the crime.
Drug trafficking is clearly one of these transnational crimes, and New Zealand isn’t immune from it.
To this end, the Maritime Powers Extension Bill 2018 (“the Bill”) was introduced to give effect to specific articles in the United Nations Convention on the Law of the Sea (“UNCLOS”) and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Drug Smuggling Convention”). The Bill passed into law on 28 September 2018, and is now the Maritime Powers Extension Act 2018 (“the Act”).
Somewhat surprisingly, the Act also widens the powers of New Zealand Customs in relation to migrant smuggling. Oddly, this is not mentioned whatsoever in the explanatory note to the Bill, and only gets a tangential footnote, phrased in hypothetical terms in the Cabinet Paper accompanying the Bill. Indeed, the impact on New Zealand’s implementation of migrant smuggling laws was not discussed at all during Parliamentary debate.
On the face of it, the primary purpose of the Act is to implement art 108 of United Nations Convention on the Law of the Sea (UNCLOS) – a provision obliging States Parties to cooperate in suppressing maritime transit of illicit substances, and art 17 of the Drug Smuggling Convention. This provision provides a framework for states to board, search, and prosecute drug traffickers who are found by state authorities on the high seas.
Taken together, these two provisions provide a rudimentary shared framework for cooperation when one State Party has reasonable grounds to believe that a ship flying the flag of another State Party is engaged in trafficking illicit substances.
OVERVIEW
Presumably, Parliament has visions of New Zealand Customs officials swooping in to bust up drug smuggling operations on the high seas. Of course, we don’t yet know how this will all play out. The following discussion is a view from 30,000 feet, making some broad and initial observations about the potential effect of the Bill.
Broadly speaking, the Act inserts new sections into the Customs and Excise Act 2018, and Misuse of Drugs Act 1975 in order to create new offences.
The biggest impact of the Act is seen in its creation of new extraterritorial offences in the Misuse of Drugs Act 1975. At present, the only extraterritorial offence in the Misuse of Drugs Act is found in s 12C – although this section does not provide clear jurisdiction in international waters, and requires either a NZ citizen, or someone present in NZ before jurisdiction will attach to that person (this particular form of jurisdiction is known as the nationality principle, and is uncontroversial internationally).
The new provisions created by the Act in the Misuse of Drugs Act 1975 are as follows:
Section 12D: This sets out that ss 12E and F will apply to any ship in New Zealand’s Exclusive Economic Zone (“EEZ”), on the high seas, or in the EEZ of any other state. This is a pretty radical extension of jurisdiction – while it won’t include the internal waters of other states, NZ Customs officials will be able to exercise these powers right up to that other state’s territorial waters (which generally extend 12 nautical miles offshore). To illustrate this point, a vessel containing smuggled drugs which are intended to be brought to New Zealand, which has just cast off its mooring in a foreign country and is still relatively close to shore, will be covered by New Zealand’s legislation as drafted.
Section 12E: This creates a new offence of drug smuggling outside NZ. The offence will be committed if there are controlled drugs on a ship and the drugs are in D’s possession, or D was knowingly involved in the transport, holding or handling of the drugs, and D or another person intends to import those drugs to NZ, and that importation would be an offence under Misuse of Drugs Act s 6(1)(a). Section 12E also creates an offence where drugs are on another ship, and arrangements are in place to move those drugs onto D’s ship thence to be imported into NZ, offending against s 6(1)(a).
The same two offences are then recreated in terms of export, rather than import. The penalty for all these is the same as in 6(2)(a)-(c). It will be a defence if D can prove he was in possession of the drugs solely for the purpose of preventing their use or trafficking; or if D can show that as soon as he knew of the drugs he took all reasonable steps to bring this to the attention of the boat owner, or appropriate authorities.
Section 12F replicates the offences found in 12E, but in the context of prohibited equipment or material.
Section 13 means that as with the original extraterritorial offence found in s 12C of the Misuse of Drugs Act, the consent of the Attorney-General will be required before prosecution of any of the new offences can proceed. By way of section 15, all these offences will be considered extraditable.
The Act also creates a new s 267A of the Customs and Excise Act 2018. This section provides Customs officers with powers for dealing with “drugs smuggling outside New Zealand etc”. This is supplemented by a new Schedule 5A, which lists those powers.
The Act’s amendment to the Search and Surveillance Act 2012 allows Customs officers to make use of powers available under the Search and Surveillance Act in relation to drug smuggling offences.
As a final point in this overview of the Act, I turn to consider the impact that this Bill will have on New Zealand’s obligations under the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air 2000 (“the Migrant Smuggling Protocol”).
The Act amends s 199 of the Customs and Excise Act. The amended section provides Customs officers with additional powers to detain a craft; require that craft to proceed to any other place considered appropriate by the officer; and powers to detain that craft. In order to exercise these powers, Customs officers may “direct any person on the craft to take any specified action”, “take charge of the craft”, and “arrange for the craft to be towed by another craft”.
COMMENTS
The fundamental aim of transnational criminal law is harmonisation. Although UNCLOS does not have the suppression of criminal activities as its main aim, the Maritime Powers Extension Act demonstrates that UNCLOS (and, by extension, other framework-creating instruments) can play a supporting role in promoting the aims of transnational criminal law.
The central purpose of both the UNCLOS article 108 and the Drug Smuggling Convention art 17 is harmonisation. Both seek to get states parties to approach the issue of interdiction of drug traffickers at sea in similar (if not identical) ways. The UNCLOS provision is stated in high-level, non-specific terms – the actual processes by which cooperation may be requested or provided is left to the discretion of states. The Drug Smuggling Convention is much more comprehensive in the way that cooperation is considered, and less emphatic with regard to the criminalisation of drug smuggling (art 17(4)(c) implies prosecution).
Without harmonisation – a shared way of understanding a problem – cooperation can’t occur. And, without cooperation, there can be no effective enforcement. And (to make the obvious point), without enforcement there is no accountability and transnational crime goes undeterred.
Why is this important?
The Maritime Powers Extension Act expands the powers of New Zealand’s Customs Service to interdict ships suspected of drug smuggling in international waters. It creates extraterritorial offences which will bring an individual under New Zealand’s jurisdiction when they are on a foreign ship outside NZ waters, but have an intention to smuggle controlled or prohibited substances, equipment or material into or out of New Zealand.
The explanatory note to the original Bill stated that the new powers are consistent with New Zealand Customs’ existing powers which apply to New Zealand’s territorial waters and contiguous zone – the extension is extraterritorial.
This Act is an example of “classic” transnational criminal law – the domestic penal implementation of international criminal standards.
Insofar as these new offences apply to New Zealand’s territorial waters, or even EEZ, this is a straightforward application of territorial jurisdiction. However, the extraterritorial effect is interesting. The new Schedule 5A makes clear that these provisions will not only apply in New Zealand’s waters (including our exclusive economic zone) and on the high seas – but also in the EEZ of any other country.
The new offences of import or exporting drugs unlawfully outside New Zealand territory can be seen as a form of passive personality-based jurisdiction, where the jurisdictional nexus hinges on the nationality of the victim of the offence – here deemed to be New Zealand as a state. This however feels slightly artificial. Alternatively, it may also be considered an implementation of the protective principle – where the extraterritorial conduct of an offender threatens the security of the state – in this case New Zealand.
These new extraterritorial offences are unusual – common law states like New Zealand tend to avoid establishing these forms of jurisdiction over offences, due to their indeterminacy, and the risk of creating double jeopardy in relation to the same offence.
The potentially wide-ranging powers are limited somewhat by the requirement that in relation to the exercise of the proposed powers to any foreign vessel, the flag state to which that vessel is registered must consent to the usage of the powers. One suspects that for many states, consent will be given for the interdiction of vessels where there is a genuine concern regarding drug smuggling. However, the usage of flags of convenience by such vessels may be a real stumbling-block to enforcement and the exercise of these extraterritorial powers. Stateless vessels will pose another issue – under the Act, it is unclear whether powers of interdiction in relation to drug smuggling offences will apply.
The Regulatory Impact Statement accompanying the Maritime Powers Bill states that there has not previously been a clear legislative basis under New Zealand’s legal framework authorising Customs officials to take effective action extraterritorially. However, in respect of NZ flagged ships operating internationally, it’s likely that the powers of search/seizure for drug related offences applied already by way of the framework for extraterritoriality set out in ss 6 and 7 of the Crimes Act 1961.
CONCLUSION
One should always be cautious about expansions of government power, but as the trafficking of fishermen example has shown us, once crime shifts from land to sea, it’s much more difficult to spot and deter. It’s too early to know what the impact of this legislation will be – watch this space for OIA requests in due course.
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Thomas Harré
Barrister, LawAid International