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Thursday, September 12, 2013

Conservation penalties

Backbench National MP, Jacqui Dean (Waitaki), has had her members bill, the Conservation (Natural Heritage Protection) Bill, reach the second reading. The bill increases penalties across a range of conservation legislation and has met with widespread approval, if not much notice.  It only came to my attention just over a week ago when I caught a bit of the second reading debate in parliament.  I have two concerns, but am not sure whether or not an SOP can amend it at this point. The first is that Maori fishing rights are left unprotected by way of an offence.  Lots of penalties for all sorts of infractions against all sorts of arbitrary things, and against all manner of asserted Pakeha/Crown notions and people, but no offence to stomping all over Maori fishing rights.  This must change and this bill is exactly the right opportunity to do it. 

Proposed SOPs:
1. Amend 4C by inserting the words:
"(a) section 26ZH, which relates to affecting protected Maori fishing rights:"
immediately after "(2) The provisions are -" and re-alphabetise the list below accordingly.

2. Amend 4C by inserting the words:
"(d) in the case of an offence against section 26ZH to be dealt with as if it were an offence against section 41(a)."
immediately after "for every day on which the offence continues".

This will allow anyone affecting (ie. interfering or preventing) a customary Maori fishing practice to be proceeded against at law and penalised as if they were resisting or obstructing officers and rangers (sec.41a).

 My other concern is with the blanket clauses for all the various legislation being amended regarding commercial motivation - not so much with the idea that commercial exploitation should be punished more harshly than non-commercial, but the difficulties with the offence and penalty mechanism as far as the court procedure and fairness to the defendant go.  Despite the claim from the promoter that it is in line with other acts, she does not state them and I cannot find (by a phrase check) any other legislation that has the same wording.

My issue is with the opening statement:
43D Penalties for offences committed for commercial gain or reward
(1) If a person is convicted of an offence against this Act and, on sentencing for that offence, the Court is satisfied beyond reasonable doubt that the offence was committed for the purpose of commercial gain or reward (whether or not any gain or reward is realised), the person is liable instead of any penalty otherwise prescribed to,—
(a) in the case of [...]  5 years.


The normal penalty is given as 2 years so an increase to 5 is significant, but that penalty is applied only after conviction when the case has gone on as if under 2 years and without reference to addressing any commercial aspect. It should at least state that the penalty shall only be applied after submissions on this point are heard from the defendant rather than leaving it up to the court alone to determine built around inferences at trial. It could also be solved by having a separate offence of commercial offending that could be pursued in the alternative.



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