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 appellant) 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 appellant 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 (MTA) 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 in the High Court. Woolford J quashed that decision and ruled that the District Court had jurisdiction and remitted the case back to the court for resumption of the defended hearing (Police v Teddy [2013] NZHC 432 CMI103). Before the District Court hearing resumed, the appellant sought and obtained leave from Woolford J to appeal on the following questions of law:

1. Should 65 of the MTA be applied extraterritorially by necessary implication?
2. Do the arrest powers provided by the Crimes Act 1961 empower the New Zealand Police to stop and board vessels and to arrest offenders extraterritorially?

Held: The appeal was dismissed. Section 65 of the MTA must be applied extraterritorially by necessary implication at least in respect of New Zealand vessels. The arrest powers provided by the Crimes Act 1961 empower the New Zealand Police to stop and board vessels and to arrest offenders extraterritorially at least in respect of New Zealand vessels.

Although there is nothing in s 65 itself or elsewhere in the MTA that expressly states whether or not it has extraterritorial effect from a practical point of view it would be surprising if it did not have extraterritorial effect. The one provision in the MTA which potentially relates to the extraterritorial reach of s 65 is ‘s 413 Place where offences deemed to committed’.

The court stated that, based on the decision in R v Hinde (1902) 22 NZLR 436 (CA) (the policy of the law is that a seaman wherever found, can be tried for an offence against this Act) s 413 expressly confers extraterritorial jurisdiction on a New Zealand court in respect of offences under s 65. Alternatively, the extraterritorial effect of s 413 flows as a matter of inevitable logic from its text and practicalities of New Zealand’s geography (Poynter v Commerce Commission [2010] NZSC 38). The extraterritorial effect of s 413 arises by necessary implication.

This conclusion is reinforced by virtue of being consistent with New Zealand’s international obligations under UNCLOS which are recognised by s 5(b) of the MTA. The relevant provisions are UNCLOS arts 92.1 ‘Status of ships’; 94.1 ‘[e]very State shall effectively exercise its jurisdiction and control … over ships flying its flag’; 94.2.b ‘every State shall assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew’, 94.3.c ‘[e]very State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard to … the prevention of collisions’; and 97 ‘Penal jurisdiction in matters of collision or any other incident of navigation’.

These provisions reflect well-established principles of international law. The enactment of s 65 of the MTA complies with the obligation under UNCLOS art 94 for New Zealand to take measures that are necessary to ensure safety at sea with regard to the prevention of collisions and the retention of s 413 confirms compliance with the exclusive jurisdiction obligation in respect of New Zealand ships. The need to comply with these obligations of international law confirms that extraterritorial jurisdiction is a necessary implication of these provisions when read together.