Maritime Powers Extension Bill

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Maritime Powers Extension Bill

Government Bill

71—1

Explanatory note

General policy statement

The Maritime Powers Extension Bill amends the Customs and Excise Act 2018 and the Misuse of Drugs Act 1975 to incorporate New Zealand’s rights and obligations under article 108 of the United Nations Convention on the Law of the Sea (UNCLOS) and article 17 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the Drug Trafficking Convention) into domestic law.

The Bill has the following objectives:

  • to provide the New Zealand Customs Service (Customs) with an additional option to disrupt drugs smuggling:

  • to establish clear jurisdiction over offences under the Misuse of Drugs Act 1975.

Protecting New Zealand from harm caused by illicit drugs

The Bill will amend the Customs and Excise Act 2018 to provide a framework for how Customs may stop, board, search, and take necessary enforcement action in international waters. These powers are consistent with Customs’ existing maritime powers in New Zealand’s territorial waters and contiguous zone, but are limited only to situations where—

  • Customs has reasonable cause to suspect that a drugs smuggling offence has been, is being, or is likely to be committed; and

  • in the case of foreign ships, the flag State has authorised actions in accordance with the Drug Trafficking Convention.

This will enable Customs to respond to suspected drugs smuggling activities before ships enter New Zealand’s territorial waters or after they leave.

The powers proposed in this Bill will not be exercised lightly. However, Customs will consider this option alongside other available options to determine the most effective response to suspected offending.

Establishing clear jurisdiction over drugs smuggling offences committed in international waters

The Bill also amends the Misuse of Drugs Act 1975 to establish offences relating to drugs smuggling outside New Zealand. This makes it an offence to be involved in the importation or exportation of controlled drugs or prohibited equipment or material, such as precursor substances, equipment, or materials to be used in producing or manufacturing controlled drugs.

These offences apply in a range of circumstances:

  • if an individual on a ship in international waters is in control of the controlled drugs or prohibited equipment or material and the individual or another individual intends to import the item into New Zealand:

  • if an individual on a ship in international waters is involved in other ways in the smuggling of these items into or out of New Zealand.

The penalties for these offences are consistent with importation and exportation offences that currently exist under the Misuse of Drugs Act 1975.

Departmental disclosure statement

The New Zealand Customs Service is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The New Zealand Customs Service produced a regulatory impact assessment on 16 February 2018 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Part by Part analysis

Preliminary provisions

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill comes into force on 1 October 2018. This is the date on which it is currently expected that most of the provisions of the Customs and Excise Act 2018 (which will replace the Customs and Excise Act 1996) will come into force.

Part 1Main amendments to Customs and Excise Act 2018 and Misuse of Drugs Act 1975

Part 1 contains the main amendments made by the Bill.

Subpart 1—Amendments to Customs and Excise Act 2018

Subpart 1 of Part 1 amends the Customs and Excise Act 2018 (the 2018 Act). The amendments confer powers on Customs officers for dealing with drugs smuggling in waters beyond New Zealand’s territorial sea.

The purpose of the powers (see new section 267A(2) inserted into the 2018 Act by clause 4) is to further New Zealand’s implementation of the following (which relate to the suppression of illicit traffic in narcotic drugs and psychotropic substances at sea):

  • article 108 of the United Nations Convention on the Law of the Sea:

  • article 17 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

The powers are set out in new Schedule 5A (inserted into the 2018 Act by clause 5 and the Schedule of the Bill).

The powers may be exercised in relation to ships that are in waters that are outside New Zealand and beyond its territorial sea (see clause 2 of new Schedule 5A and related definitions in clause 1 of new Schedule 5A).

If a ship is registered in a State other than New Zealand, generally, the powers may be exercised only with the consent of that State (see clause 3 of new Schedule 5A and related definitions in clause 1 of new Schedule 5A).

In order for the powers to be exercised in relation to a ship, a Customs officer must have reasonable cause to suspect that the ship is involved in drugs smuggling or that a person on the ship is a drugs smuggler (see clause 5(1) of new Schedule 5A and related definitions in clause 1 of new Schedule 5A). Broadly speaking, drugs smuggling for these purposes is the involvement in the commission, or the planned commission, of an offence under the Misuse of Drugs Act 1975 (as amended by subpart 2 of Part 1 of the Bill) relating to the importation into, or the exportation from, New Zealand of controlled drugs, precursor substances, or equipment or materials that can be used for producing controlled drugs.

The powers are as follows (see clause 5(2) to (7) of new Schedule 5A):

  • stopping the ship:

  • boarding the ship:

  • searching the ship, or persons on the ship, for evidence of drugs smuggling:

  • questioning persons on the ship:

  • requiring persons on the ship to produce, or give access to, documents.

There is also a power to arrest a person on the ship whom a Customs officer has reasonable cause to believe has committed one of the offences under the Misuse of Drugs Act 1975 related to drugs smuggling (see clause 6 of new Schedule 5A). The power of arrest may be exercised only if evidence of drugs smuggling is found on the ship or a Customs officer has reasonable cause to believe that evidence of drugs smuggling has been on the ship.

A Customs officer may detain the ship if satisfied that it is reasonably necessary to do so for the purpose of exercising the powers (see clause 7 of new Schedule 5A). The power to detain also includes the power to bring the ship to New Zealand or to another appropriate place.

The following items may be forfeited to the Crown (see clause 8 of new Schedule 5A):

  • any controlled drugs, precursor substances, or equipment or materials that can be used for producing controlled drugs that are found on the ship:

  • the ship itself if it has been involved in drugs smuggling.

Subpart 2—Amendment to Misuse of Drugs Act 1975

Subpart 2 of Part 1 amends the Misuse of Drugs Act 1975 (the 1975 Act). Clause 7 inserts new sections 12D to 12F into the 1975 Act. New sections 12D to 12F contain offences relating to drugs smuggling outside New Zealand.

Extraterritorial application of offences

The offences apply on ships that are outside New Zealand and in any of the following waters (see new section 12D(1) and related definitions in new section 12D(8)):

  • New Zealand’s exclusive economic zone:

  • the high seas:

  • the exclusive economic zone of another State.

Offences relating to importation or exportation of controlled drugs

New section 12E contains 4 offences.

A person (D) who is on a ship commits an offence under new section 12E(1) or (3) if—

  • D has controlled drugs in D’s possession, or is knowingly concerned in the transportation, holding, or handling of controlled drugs on the ship; and

  • D, or another person, intends to import the controlled drugs into New Zealand or another person has exported the controlled drugs from New Zealand; and

  • the importation would be, or the exportation was, an offence under section 6(1)(a) of the 1975 Act.

New section 12E(6) contains a defence to a charge under new section 12E(1) or (3) for a person who was preventing the controlled drugs from being used or trafficked.

A person (D) who is on a ship commits an offence under new section 12E(2) or (4) if—

  • there are controlled drugs on another ship and there is an arrangement for moving the controlled drugs onto D’s ship; and

  • D knowingly—

    • takes steps to implement, or to facilitate the implementation of, the arrangement; or

    • makes preparations for the arrival of the controlled drugs onto D’s ship; and

  • D, or another person, intends to import the controlled drugs into New Zealand or another person intends to export, or has exported, the controlled drugs from New Zealand; and

  • the importation would be, or the exportation would be or was, an offence under section 6(1)(a) of the 1975 Act.

Controlled drugs are specified in Schedules 1 to 3 of the 1975 Act.

Section 6(1)(a) of the 1975 Act, subject to certain exceptions, makes it an offence to import a controlled drug into New Zealand or to export a controlled drug from New Zealand.

A person who commits an offence under new section 12E is liable for the same penalties as a person who commits an offence under section 6(1)(a) of the 1975 Act (see section 6(2) of the 1975 Act and new section 12E(5)).

Offences relating to importation or exportation of prohibited equipment or material

New section 12F contains 4 offences.

A person (D) who is on a ship commits an offence under new section 12F(1) or (3) if—

  • D has prohibited equipment or material in D’s possession, or is knowingly concerned in the transportation, holding, or handling of prohibited equipment or material on the ship; and

  • D, or another person, intends to import the prohibited equipment or material into New Zealand or another person has exported the prohibited equipment or material from New Zealand; and

  • D or the other person (as the case may be) knows the prohibited equipment or material will be used in New Zealand to commit an offence under section 6(1)(b) of the 1975 Act or will be used in another country to commit a corresponding offence.

New section 12F(6) contains a defence to a charge under new section 12F(1) or (3) for a person who was preventing the prohibited equipment or material from being used or trafficked.

A person (D) who is on a ship commits an offence under new section 12F(2) or (4) if—

  • there is prohibited equipment or material on another ship and there is an arrangement for moving the prohibited equipment or material onto D’s ship; and

  • D knowingly—

    • takes steps to implement, or to facilitate the implementation of, the arrangement; or

    • makes preparations for the arrival of the prohibited equipment or material onto D’s ship; and

  • D, or another person, intends to import the prohibited equipment or material into New Zealand or another person intends to export, or has exported, the prohibited equipment or material from New Zealand; and

  • D or the other person (as the case may be) knows the prohibited equipment or material will be used in New Zealand to commit an offence under section 6(1)(b) of the 1975 Act or will be used in another country to commit a corresponding offence.

Section 6(1)(b) of the 1975 Act, subject to certain exceptions, makes it an offence to produce or manufacture a controlled drug in New Zealand.

Prohibited equipment or material is defined in new section 12D(8). It covers the following:

  • precursor substances (see Schedule 4 of the 1975 Act):

  • other equipment or material that is capable of being used in, or for, the commission of an offence under section 6(1)(b) of the 1975 Act.

A person who commits an offence under new section 12F is liable to up to 7 years’ imprisonment (see new section 12F(5)). This is the same penalty as the penalty for an offence under section 12AB of the 1975 Act, which relates to the importation into, or the exportation from, New Zealand of precursor substances.

Part 2Consequential and related amendments

Part 2 contains consequential and related amendments to the Customs and Excise Act 2018, the Misuse of Drugs Act 1975, and the Search and Surveillance Act 2012.

Hon Meka Whaitiri

Maritime Powers Extension Bill

Government Bill

71—1

Contents

Explanatory note
1Title
2Commencement
3Amendments to Customs and Excise Act 2018
4New section 267A and cross-heading inserted
267APowers for dealing with drugs smuggling outside New Zealand
5New Schedule 5A inserted
6Amendment to Misuse of Drugs Act 1975
7New sections 12D to 12F inserted
12DDrugs smuggling outside New Zealand, etc: application of sections 12E and 12F, supplementary provisions, and definitions
12EDrugs smuggling outside New Zealand, etc: controlled drugs
12FDrugs smuggling outside New Zealand, etc: prohibited equipment or material
8Amendments to Customs and Excise Act 2018
9Section 4 amended (Overview of Act)
10Section 176 amended (Goods forfeited)
11Section 199 amended (Detention of craft suspected to be involved in offences or smuggling migrants)
12Amendments to Misuse of Drugs Act 1975
13Section 28A amended (Consent of Attorney-General required in proceedings under section 12C)
14Section 29 amended (Mistake as to nature of controlled drug or precursor substance)
15Section 35A amended (Further provision on crimes to be treated as included in extradition treaties)
16Section 35C amended (Restrictions on surrender of offenders)
17Amendment to Search and Surveillance Act 2012
18Schedule amended

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Maritime Powers Extension Act 2018.

2 Commencement

This Act comes into force on 1 October 2018.

Part 1 Main amendments to Customs and Excise Act 2018 and Misuse of Drugs Act 1975

Subpart 1—Amendments to Customs and Excise Act 2018

3 Amendments to Customs and Excise Act 2018

This subpart amends the Customs and Excise Act 2018.

4 New section 267A and cross-heading inserted

After section 267, insert:

Drugs smuggling outside New Zealand

267A Powers for dealing with drugs smuggling outside New Zealand

(1)

Schedule 5A contains powers for dealing with drugs smuggling outside New Zealand.

(2)

The purpose of Schedule 5A is to further New Zealand’s implementation of the following (which relate to the suppression of illicit traffic in narcotic drugs and psychotropic substances at sea):

(a)

article 108 of the United Nations Convention on the Law of the Sea:

(b)

article 17 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

5 New Schedule 5A inserted

After Schedule 5, insert the Schedule 5A set out in the Schedule of this Act.

Subpart 2—Amendment to Misuse of Drugs Act 1975

6 Amendment to Misuse of Drugs Act 1975

This subpart amends the Misuse of Drugs Act 1975.

7 New sections 12D to 12F inserted

After section 12C, insert:

12D Drugs smuggling outside New Zealand, etc: application of sections 12E and 12F, supplementary provisions, and definitions
Application of sections 12E and 12F

(1)

Sections 12E and 12F apply to any ship that is in any of the following:

(a)

New Zealand’s exclusive economic zone:

(b)

the high seas:

(c)

the exclusive economic zone of another State.

Supplementary provisions relating to offences under sections 12E and 12F

(2)

For the purposes of sections 12E(1)(b) and (2)(d) and 12F(1)(b) and (2)(d), in a case where it is another person who intends to import, it does not matter if—

(a)

the other person is not on a ship to which section 12E or 12F applies:

(b)

D does not know the other person’s identity:

(c)

D does not know of the other person’s intention to import the controlled drugs or prohibited equipment or material into New Zealand.

(3)

For the purposes of sections 12E(2)(a) and 12F(2)(a), it does not matter if D does not know the identity of the other ship.

(4)

For the purposes of sections 12E(3)(b) and (4)(a) and 12F(3)(b) and (4)(a), it does not matter if—

(a)

the other person is not on a ship to which section 12E or 12F applies:

(b)

D does not know the other person’s identity:

(c)

D does not know of the exportation of, or of the other person’s intention to export, the controlled drugs or prohibited equipment or material from New Zealand.

(5)

For the purposes of sections 12E and 12F, it does not matter if any intended importation or exportation does not actually occur.

(6)

Section 28A applies to proceedings for an offence under section 12E or 12F.

(7)

Section 29C does not apply to an offence under section 12E or 12F.

Definitions

(8)

In this section and sections 12E and 12F,—

exclusive economic zone, in relation to New Zealand, has the meaning given to that term in section 9 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

high seas means all parts of the sea not included in—

(a)

the internal waters, territorial sea, or exclusive economic zone of New Zealand or another State; or

(b)

the archipelagic waters of an archipelagic State

prohibited equipment or material means—

(a)

a precursor substance; or

(b)

any equipment or material, other than a precursor substance, that is capable of being used in, or for, the commission of an offence under section 6(1)(b)

ship has the meaning given to that term in section 5(1) of the Customs and Excise Act 2018.

12E Drugs smuggling outside New Zealand, etc: controlled drugs
Offences

(1)

A person (D) who is on a ship to which this section applies commits an offence if—

(a)

there are controlled drugs on the ship and—

(i)

the controlled drugs are in D’s possession; or

(ii)

D is knowingly concerned in the transportation, holding, or handling of the controlled drugs on the ship; and

(b)

D or another person intends to import those controlled drugs into New Zealand; and

(c)

the importation would (if completed) be an offence under section 6(1)(a).

(2)

A person (D) who is on a ship (D’s ship) to which this section applies commits an offence if—

(a)

there are controlled drugs on another ship to which this section applies; and

(b)

there is an arrangement for moving those controlled drugs onto D’s ship; and

(c)

D knowingly—

(i)

takes steps to implement, or to facilitate the implementation of, the arrangement; or

(ii)

makes preparations for the arrival of those controlled drugs onto D’s ship; and

(d)

D or another person intends to import those controlled drugs into New Zealand; and

(e)

the importation would (if completed) be an offence under section 6(1)(a).

(3)

A person (D) who is on a ship to which this section applies commits an offence if—

(a)

there are controlled drugs on the ship and—

(i)

the controlled drugs are in D’s possession; or

(ii)

D is knowingly concerned in the transportation, holding, or handling of the controlled drugs on the ship; and

(b)

another person exported those controlled drugs from New Zealand; and

(c)

the exportation was an offence under section 6(1)(a).

(4)

A person (D) who is on a ship (D’s ship) to which this section applies commits an offence if—

(a)

another person intends to export, or has exported, controlled drugs from New Zealand; and

(b)

the exportation would (if completed) be, or was, an offence under section 6(1)(a); and

(c)

there is an arrangement for moving those controlled drugs onto D’s ship; and

(d)

D knowingly—

(i)

takes steps to implement, or to facilitate the implementation of, the arrangement; or

(ii)

makes preparations for the arrival of those controlled drugs onto D’s ship.

Penalty

(5)

A person who commits an offence under this section is liable on conviction in accordance with section 6(2)(a) to (c).

Defence

(6)

It is a defence to a prosecution for an offence under subsection (1) or (3) if the person charged (D) proves,—

(a)

as the case may be, that—

(i)

D was in possession of the controlled drugs solely for the purpose of preventing their use or trafficking:

(ii)

D was knowingly concerned in the transportation, holding, or handling of the controlled drugs solely for the purpose of preventing their use or trafficking; and

(b)

that, as soon as possible after D became aware that the controlled drugs were on the ship,—

(i)

D took all reasonable steps to inform the person in charge of the ship that the controlled drugs were on the ship; or

(ii)

if D was the person in charge of the ship, D took all reasonable steps to inform at least 1 of the following that the controlled drugs were on the ship:

(A)

a representative of the company operating the ship (other than a representative who was on the ship):

(B)

an appropriate governmental authority at the port that, at the time D became aware that the controlled drugs were on the ship, was the next intended port of arrival for the ship.

12F Drugs smuggling outside New Zealand, etc: prohibited equipment or material
Offences

(1)

A person (D) who is on a ship to which this section applies commits an offence if—

(a)

there is prohibited equipment or material on the ship and—

(i)

the prohibited equipment or material is in D’s possession; or

(ii)

D is knowingly concerned in the transportation, holding, or handling of the prohibited equipment or material on the ship; and

(b)

D or another person intends to import that prohibited equipment or material into New Zealand; and

(c)

D or the other person (as the case may be) knows that, if the importation is completed, that prohibited equipment or material will be used in New Zealand to commit an offence under section 6(1)(b).

(2)

A person (D) who is on a ship (D’s ship) to which this section applies commits an offence if—

(a)

there is prohibited equipment or material on another ship to which this section applies; and

(b)

there is an arrangement for moving that prohibited equipment or material onto D’s ship; and

(c)

D knowingly—

(i)

takes steps to implement, or to facilitate the implementation of, the arrangement; or

(ii)

makes preparations for the arrival of that prohibited equipment or material onto D’s ship; and

(d)

D or another person intends to import that prohibited equipment or material into New Zealand; and

(e)

D or the other person (as the case may be) knows that, if the importation is completed, that prohibited equipment or material will be used in New Zealand to commit an offence under section 6(1)(b).

(3)

A person (D) who is on a ship to which this section applies commits an offence if—

(a)

there is prohibited equipment or material on the ship and—

(i)

the prohibited equipment or material is in D’s possession; or

(ii)

D is knowingly concerned in the transportation, holding, or handling of the prohibited equipment or material on the ship; and

(b)

another person exported that prohibited equipment or material from New Zealand knowing that it will be used to commit an offence under a provision of the law of the country to which it is being exported that corresponds to an offence under section 6(1)(b).

(4)

A person (D) who is on a ship (D’s ship) to which this section applies commits an offence if—

(a)

another person intends to export, or has exported, prohibited equipment or material from New Zealand knowing that it will be used to commit an offence under a provision of the law of the country to which it would be, or is being, exported that corresponds to an offence under section 6(1)(b); and

(b)

there is an arrangement for moving that prohibited equipment or material onto D’s ship; and

(c)

D knowingly—

(i)

takes steps to implement, or to facilitate the implementation of, the arrangement; or

(ii)

makes preparations for the arrival of that prohibited equipment or material onto D’s ship.

Penalty

(5)

A person who commits an offence under this section is liable on conviction to imprisonment for a term not exceeding 7 years.

Defence

(6)

It is a defence to a prosecution for an offence under subsection (1) or (3) if the person charged (D) proves,—

(a)

as the case may be, that—

(i)

D was in possession of the prohibited equipment or material solely for the purpose of preventing its use or trafficking:

(ii)

D was knowingly concerned in the transportation, holding, or handling of the prohibited equipment or material solely for the purpose of preventing its use or trafficking; and

(b)

that, as soon as possible after D became aware that the prohibited equipment or material was on the ship,—

(i)

D took all reasonable steps to inform the person in charge of the ship that the prohibited equipment or material was on the ship; or

(ii)

if D was the person in charge of the ship, D took all reasonable steps to inform at least 1 of the following that the prohibited equipment or material was on the ship:

(A)

a representative of the company operating the ship (other than a representative who was on the ship):

(B)

an appropriate governmental authority at the port that, at the time D became aware that the prohibited equipment or material was on the ship, was the next intended port of arrival for the ship.

Part 2 Consequential and related amendments

Subpart 1—Amendments to Customs and Excise Act 2018

8 Amendments to Customs and Excise Act 2018

This subpart amends the Customs and Excise Act 2018.

9 Section 4 amended (Overview of Act)

In section 4(5), after “Part 4”, insert “(including Schedule 5A)”.

10 Section 176 amended (Goods forfeited)

After section 176(1)(u), insert:

(v)

a ship treated as forfeited under clause 8(3) of Schedule 5A.

11 Section 199 amended (Detention of craft suspected to be involved in offences or smuggling migrants)

Replace section 199(2) and (3) with:

(2)

A Customs officer—

(a)

may detain the craft at the place where it is:

(b)

may also direct—

(i)

that the craft proceed to the nearest Customs place or to any other place that the officer considers appropriate; and

(ii)

that the craft’s detention continue during the craft’s journey to that place, and at that place once the craft arrives there.

(2A)

A power in subsection (2) is exercisable only if, and for so long as, a Customs officer is satisfied that the exercise of the power is reasonably necessary to carry out an investigation into the commission of the offence concerned.

(2B)

If a direction is given under subsection (2)(b), a Customs officer may, for the purpose of implementing the direction, do any of the following:

(a)

direct any person on the craft to take any specified action:

(b)

take charge of the craft:

(c)

arrange for the craft to be towed by another craft.

(3)

Subsection (4) applies if the person in charge of the craft attempts, or threatens, to cause the craft to depart, without a certificate of clearance, from a place where it is detained under subsection (2).

Subpart 2—Amendments to Misuse of Drugs Act 1975

12 Amendments to Misuse of Drugs Act 1975

This subpart amends the Misuse of Drugs Act 1975.

13 Section 28A amended (Consent of Attorney-General required in proceedings under section 12C)

(1)

In the heading to section 28A, after 12C, insert , 12E, or 12F.

(2)

In section 28A(1) and (2), after “12C”, insert “, 12E, or 12F”.

14 Section 29 amended (Mistake as to nature of controlled drug or precursor substance)

In section 29, after “section 12AC”, insert “or section 12E or section 12F.

15 Section 35A amended (Further provision on crimes to be treated as included in extradition treaties)

In section 35A(1), replace “and 12C” with “12C, 12E, and 12F.

16 Section 35C amended (Restrictions on surrender of offenders)

In section 35C(1), replace “and 12C” with “12C, 12E, and 12F.

Subpart 3—Amendment to Search and Surveillance Act 2012

17 Amendment to Search and Surveillance Act 2012

This subpart amends the Search and Surveillance Act 2012.

18 Schedule amended

In the Schedule, after the item relating to section 243 of the Customs and Excise Act 2018, insert:

clause 9(2) to (5) of Schedule 5ACustoms officer may exercise search powers in dealing with drugs smuggling outside New ZealandSubparts 1, 2, and 4 to 10 (except that sections 125(4), 131(5)(f), and 133 and subparts 6 and 8 do not apply to forfeited goods)

Schedule New Schedule 5A inserted

s 5

Schedule 5A Powers for dealing with drugs smuggling outside New Zealand

s 267A

Preliminary provisions

1 Definitions for schedule

(1)

In this schedule,—

controlled drug has the meaning given to that term in section 2(1) of the Misuse of Drugs Act 1975

data has the meaning given to that term in section 228(5) of this Act

drugs smuggler means a person who—

(a)

has committed, is committing, or is likely to commit a drugs smuggling offence; or

(b)

has been, is, or is likely to be otherwise concerned in the commission of a drugs smuggling offence

drugs smuggling evidence means any of the following:

(a)

a controlled drug or precursor substance:

(b)

any equipment or material that is capable of being used in, or for, the commission of an offence under section 6(1)(b) of the Misuse of Drugs Act 1975:

(c)

anything else that is evidence of 1 or more of the following:

(i)

that a drugs smuggling offence has been, is being, or is likely to be committed:

(ii)

that a ship is involved in drugs smuggling:

(iii)

that a drugs smuggler is on a ship

drugs smuggling offence means an offence—

(a)

under section 6(2) or (2A) of the Misuse of Drugs Act 1975 in relation to a contravention of, or a conspiracy to contravene, section 6(1)(a) of that Act; or

(b)

under section 12AB(1) of the Misuse of Drugs Act 1975; or

(c)

under section 12C of the Misuse of Drugs Act 1975 in relation to an act or omission that would be an offence—

(i)

under section 6(2) or (2A) of the Misuse of Drugs Act 1975 in relation to a contravention of, or a conspiracy to contravene, section 6(1)(a) of that Act; or

(ii)

under section 12AB(1) of the Misuse of Drugs Act 1975; or

(d)

under section 12E or 12F of the Misuse of Drugs Act 1975

electronic device has the meaning given to that term in section 228(5) of this Act

exclusive economic zone, in relation to New Zealand, has the meaning given to that term in section 9 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

flag State, in relation to a foreign ship, means—

(a)

the State in which the ship is registered; or

(b)

if the ship is unregistered, the State whose flag the ship is entitled to fly or whose marks of registry the ship is entitled to display

foreign ship means a ship—

(a)

that is not a New Zealand ship; and

(b)

that—

(i)

is registered in a State other than New Zealand; or

(ii)

is entitled to fly the flag, or to display the marks of registry, of a State other than New Zealand

high seas means all parts of the sea not included in—

(a)

the internal waters, territorial sea, or exclusive economic zone of New Zealand or another State; or

(b)

the archipelagic waters of an archipelagic State

New Zealand ship means a ship that—

(a)

is registered under the Ship Registration Act 1992; or

(b)

is not registered under the Ship Registration Act 1992 but is required or entitled to be registered under that Act

precursor substance has the meaning given to that term in section 2(1) of the Misuse of Drugs Act 1975

preliminary search has the meaning given to that term in section 210(6) of this Act

relevant matter, in relation to a ship, means a matter relating to 1 or more of the following:

(a)

the ship itself (for example, its registration or technical specifications):

(b)

past, current, or intended journeys of the ship:

(c)

activities that have been, are being, or are intended to be carried out on or from the ship:

(d)

goods that have been on, are on, or are intended to be brought onto the ship:

(e)

persons who have been on, are on, or are expected to board the ship:

(f)

without limiting paragraphs (a) to (e), any matter that is relevant to investigating 1 or more of the following:

(i)

whether the ship has been, is, or will be involved in drugs smuggling:

(ii)

whether drugs smugglers have been, are, or will be on the ship:

(iii)

whether drugs smuggling evidence has been, is, or will be on the ship

rub-down search has the meaning given to that term in section 3(1) of the Search and Surveillance Act 2012

travel document means any document that is—

(a)

a New Zealand travel document (as that term is defined in section 2 of the Passports Act 1992); or

(b)

a passport (as that term is defined in section 2 of the Passports Act 1992) that has been issued by the Government of a State other than New Zealand; or

(c)

a certificate of identity (as that term is defined in section 2 of the Passports Act 1992) that has been issued by the Government of a State other than New Zealand; or

(d)

a refugee travel document that has been issued by the Government of a State other than New Zealand.

(2)

For the purposes of this schedule, a ship is involved in drugs smuggling if—

(a)

a drugs smuggling offence has been, is being, or is likely to be committed on the ship; or

(b)

the ship has been, is, or is likely to be otherwise involved in the commission, or in facilitating the commission, of a drugs smuggling offence.

2 Ships to which schedule applies

This schedule applies to any ship that is in any of the following:

(a)

New Zealand’s exclusive economic zone:

(b)

the high seas:

(c)

the exclusive economic zone of another State.

3 Application of schedule to foreign ships

(1)

In relation to a foreign ship, the powers under this schedule are exercisable—

(a)

only if, and to the extent that, the flag State has consented to the exercise of the powers; and

(b)

subject to any conditions that the flag State attaches to its consent.

(2)

Subclause (1) is subject to subclauses (3) and (4).

(3)

Subclause (4) applies if—

(a)

a foreign ship is pursued out of New Zealand or the contiguous zone; and

(b)

the pursuit is a hot pursuit in accordance with article 111 of the United Nations Convention on the Law of the Sea.

(4)

Consent is not required under subclause (1) for stopping the ship to end the pursuit or for the exercise of any powers following the end of the pursuit.

4 Schedule does not affect other powers

This schedule does not affect any other powers that are exercisable by any person outside New Zealand under any enactment or otherwise.

Powers

5 Investigatory powers

(1)

This clause applies in relation to a ship if a Customs officer has reasonable cause to suspect 1 or both of the following:

(a)

that the ship is involved in drugs smuggling:

(b)

that a person on the ship is a drugs smuggler.

(2)

A Customs officer may do any of the following:

(a)

stop the ship:

(b)

board the ship:

(c)

search the ship, or any person on the ship, for drugs smuggling evidence:

(d)

question any person on the ship about a relevant matter.

(3)

A Customs officer may also do any of the following:

(a)

require any person on the ship to produce to a Customs officer, or otherwise to give a Customs officer access to, any document—

(i)

that is a travel document relating to the person; or

(ii)

that relates to a relevant matter and that is in the person’s possession or under the person’s control:

(b)

inspect the document.

(4)

If a document is stored, or is accessible, on or from any electronic device on the ship, the power in subclause (3)(a) includes (without limitation) the power to require the person to operate the device as is reasonably necessary.

(5)

If a Customs officer has reasonable cause to suspect that a person has refused or failed to comply with a requirement imposed under subclause (3)(a), a Customs officer may search the ship or the person (or both) for the document.

(6)

The powers to search the ship under subclauses (2)(c) and (5) include the power to search data in an electronic device on the ship as follows:

(a)

an initial search may be carried out in accordance with the definition of that term in section 228(5) of this Act:

(b)

if a Customs officer has (as a result of an initial search under paragraph (a) or otherwise) reasonable cause to believe that drugs smuggling evidence is in the electronic device, a full search may be carried out in accordance with the definition of that term in section 228(5) of this Act (reading the reference in paragraph (f) to evidence of relevant offending as a reference to drugs smuggling evidence):

(c)

there is no power under paragraph (a) or (b) to search material (of any kind) that is accessible from the electronic device but is not stored on it:

(d)

the powers under paragraphs (a) and (b) may be used for the purpose of determining whether drugs smuggling evidence is in the electronic device.

(7)

The powers to search a person under subclauses (2)(c) and (5) are limited to conducting a preliminary search or a rub-down search, unless a Customs officer has (as a result of a preliminary search or a rub-down search of the person or otherwise) reasonable cause to believe that the person has drugs smuggling evidence or the document (as the case may be) on or about their body.

6 Power of arrest

(1)

A Customs officer may, without warrant, arrest a person listed in subclause (2) if—

(a)

both of the following apply:

(i)

a Customs officer finds drugs smuggling evidence on a ship:

(ii)

wholly or partly on the basis of that drugs smuggling evidence, a Customs officer has reasonable cause to believe that the person has committed, is committing, or is attempting to commit, or is otherwise concerned in the commission of, a drugs smuggling offence; or

(b)

both of the following apply:

(i)

a Customs officer has reasonable cause to believe that drugs smuggling evidence has been on a ship:

(ii)

wholly or partly on the basis of that belief, a Customs officer has reasonable cause to believe that the person has committed, is committing, or is attempting to commit, or is otherwise concerned in the commission of, a drugs smuggling offence.

(2)

The persons are as follows:

(a)

a person on the ship:

(b)

a person who has left the ship if the arresting officer is freshly pursuing the person.

(3)

Section 263(2) and (3) of this Act applies in relation to an arrest under subclause (1).

7 Detention of ship

(1)

A power in subclause (2) is exercisable in relation to a ship only if, and for so long as, a Customs officer is satisfied that the exercise of the power is reasonably necessary to enable the other powers in this schedule to be exercised in relation to the ship.

(2)

A Customs officer—

(a)

may detain the ship at the place where it is stopped under clause 5(2)(a):

(b)

may also direct—

(i)

that the ship proceed to the nearest Customs place or to any other place (in New Zealand or elsewhere) that the officer considers appropriate; and

(ii)

that the ship’s detention continue during the ship’s journey to that place, and at that place once the ship arrives there.

(3)

If a direction is given under subclause (2)(b), a Customs officer may, for the purpose of implementing the direction, do any of the following:

(a)

direct any person on the ship to take any specified action:

(b)

take charge of the ship:

(c)

arrange for the ship to be towed by another craft.

8 Forfeiture

(1)

A Customs officer may treat as forfeited to the Crown any of the following goods that are seized in the exercise of a search power under this schedule:

(a)

a controlled drug or precursor substance:

(b)

any equipment or material that is capable of being used in, or for, the commission of an offence under section 6(1)(b) of the Misuse of Drugs Act 1975.

(2)

If goods are treated as forfeited under subclause (1),—

(a)

the goods are forfeited to the Crown; and

(b)

subpart 9 of Part 3 of this Act does not apply, despite section 175; and

(c)

a Customs officer may dispose of the goods as a Customs officer considers appropriate.

(3)

If a ship arrives in New Zealand under a direction given under clause 7(2)(b), a Customs officer may, at any time when the ship is in New Zealand, treat the ship as forfeited to the Crown if 1 or both of the following apply:

(a)

a drugs smuggling offence has been, or is being, committed on the ship:

(b)

the ship has been, or is, otherwise involved in the commission, or in facilitating the commission, of a drugs smuggling offence.

(4)

Subpart 9 of Part 3 of this Act applies if a ship is treated as forfeited under subclause (3).

9 Supplementary provisions
Communication with flag State

(1)

If a ship is a foreign ship, a Customs officer must not interfere with any attempt by the person in charge of the ship to communicate with the authorities of the flag State at any time while powers under this schedule are being exercised.

Part 4 of Search and Surveillance Act 2012

(2)

Part 4 of the Search and Surveillance Act 2012, except subpart 3, applies in respect of the search powers in clause 5(2)(c) and (5).

(3)

If a document that is produced to a Customs officer, or to which a Customs officer is given access, under clause 5(3)(a) is drugs smuggling evidence, Part 4 of the Search and Surveillance Act 2012 applies to the document as if it had been found by the Customs officer during a search for the document to which that Part applied.

(4)

Despite subclauses (2) and (3), sections 125(4), 131(5)(f), and 133, and subparts 6 and 8 of Part 4, of the Search and Surveillance Act 2012 do not apply to goods treated as forfeited under clause 8 or to any other forfeited goods.

(5)

Part 4 of the Search and Surveillance Act 2012, as applied by subclauses (2) and (3), applies subject to clause 5(6) and (7) and subclause (7).

Use of force

(6)

A Customs officer may use reasonable force for the purpose of exercising a power under this schedule.

(7)

If the ship is a foreign ship, a Customs officer must not use force that exceeds the minimum degree of force that is necessary in the circumstances.