In April 2011 the Orient Explorer was conducting a seismic survey of the Raukumara Basin on behalf of Petrobas, a Brazilian oil and gas exploration company. Pertrobas had been granted a 5 year permit by the New Zealand government to carry out exploration activities over part of the basin.

On 23 April 2011 New Zealand police boarded the San Pietro, a fishing vessel being sailed by Mr Teddy (the respondent) within 20 metres of the bow of the Orient Explorer as part of protest activity involving Greenpeace and East Cape iwi. At the time, the San Pietro was outside New Zealand’s 12 nautical mile territorial limit. The respondent refused to relinquish the wheel of the vessel, alter course, or comply with police instructions. He was arrested and charged with operating a vessel in a manner that caused unnecessary risk to the Orient Explorer contrary to s 65(1)(a) of the Maritime Transport Act 1994 and resisting a constable acting in pursuance of his duty, contrary to s 23(a) of the Summary Offences Act 1968.

Following a defended hearing in the Tauranga District Court, Treston J ruled that the charges were nullities because s 65(1)(a) did not extend beyond New Zealand’s territorial sea. The Police filed an appeal.

Held: The decision that the charges were nullities is quashed. The matter is remitted back to the District Court for resumption of the defended hearing.

The San Pietro is a New Zealand ship. New Zealand has jurisdiction over all New Zealand ships on the high seas. This is affirmed by art 92 of UNCLOS which states that ‘[s]hips shall sail under the flag of on State only and … shall be subject to its exclusive jurisdiction on the high seas'. Art 97 provides that only the flag state has penal jurisdiction in the event of collisions and other navigational incidents. Art 94 requires flag states to exercise their jurisdiction. Specifically, art 94.1 states ‘[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag'. Art 94.2.b requires every State to ‘assume jurisdiction under its internal law over each ship flying its flag’. Art 94.3.c requires every State to ‘take measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to the use of signals, the maintenance of communications and the prevention of collisions'.

The respondent accepted that New Zealand has exclusive jurisdiction over the San Pietro outside the territorial limit but argued the Maritime Transport Act does not have extra-territorial effect because it does not expressly say that it applies. In response, the applicant argued that there was no need to consider extra-territorial application of New Zealand law as New Zealand ships are part of New Zealand territory. Woolford J did not accept this argument, finding such a concept ‘both artificial and unnecessary’. However, his Honour held that, although there is no express wording in the Maritime Transport Act, due to the statutory context and New Zealand’s international law obligations, it applies by necessary implication to New Zealand ships beyond the territorial sea.

The purpose of the Maritime Transport Act illustrates it was intended to have extra-territorial effect. One of the objectives in s 5 is to ensure New Zealand’s obligations under conventions such as UNCLOS are implemented. New Zealand has legal obligations to regulate New Zealand ships beyond its territorial sea and could not achieve these if the Maritime Transport Act did not have extra-territorial effect.