Department of Conservation v Macrae
[2017] NZHC 1577
•7 July 2017
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CRI-2017-418-000002 [2017] NZHC 1577
BETWEEN DEPARTMENT OF CONSERVATION
Appellant
AND
ROSS DONALD MACRAE Respondent
Hearing: 1 June 2017 Appearances:
B Hawes & S J Mallett for the Appellant
S J Zindel for the RespondentJudgment:
7 July 2017
JUDGMENT OF NATION J
[1] On 2 November 2014, a Department of Conservation ranger observed the respondent standing on a structure on the bank of the Buller River. It was alleged that he had in his possession a scoop net. The ranger could see that there were screen nets in the water on the downstream edge of the structure. The ranger measured the length of the screens at 5.5 metres.
[2] The Buller River is not listed in the West Coast Regional Council’s policy on the management of whitebait stands as having any licensed structures. No licence had been issued to the respondent to use the structure for whitebait fishing.
[3] The respondent was charged with two offences under the Whitebait Fishing
(West Coast) Regulations 1994, being regulations enacted under the Conservation
Act 1987 (the Conservation Act).
DEPT OF CONSERVATION v MACRAE [2017] NZHC 1577 [7 July 2017]
[4] On 23 February 2017, both charges were dismissed in the District Court on the basis they had been brought out of time and were therefore a nullity.1
[5] The issue decided by the District Court Judge which the appellant asks me to determine is whether or not these charges had to be brought within six months of the alleged offending.
Application for leave
[6] The appellant sought leave under s 296(2) of the Criminal Procedure Act
2011 to appeal on a question of law. An error of law can include a misdirection of law apparent in the decision.2 The appellant sought leave to appeal on the basis the Judge has misdirected himself on the law, and proposed the question on appeal be framed as follows:
Was the Judge correct to conclude that the phrase “offences against the Act” contained in s 43(2) of the Conservation Act 1987 did not apply to offences made under the regulations to that Act?
[7] Mr Hawes, for the appellant, said the Judge’s decision had implications which went well beyond just the outcome of this prosecution. Mr Zindel did not oppose the application for leave. Leave is accordingly granted on the question of law as framed by the appellant.
The District Court decision
[8] The two charges faced by the respondent can be categorised as Category 1 offences under the Criminal Procedure Act 2011. The maximum penalty for each is a fine not exceeding $5,000.
[9] Usually, a proceeding with respect to a Category 1 offence, must be brought within six months of the offence.3 However, s 43(2) of the Conservation Act states:
1 Department of Conservation v MacRae [2017] NZDC 3686.
2 Brown v R [2015] NZCA 325 (CA) at [16].
3 Criminal Procedure Act 2011, s 25(3)(a).
43 Proceedings for offences
...
(2) Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against this Act ends on the date that is 12 months after the date on which the offence was committed.
[10] The District Court Judge said:4
The question to be determined is whether these charges are a nullity because they are not saved by s 43(2) Conservation Act or, put another way, does the phrase in s 43(2), “an offence against this Act”, extend beyond offences specifically set out in the Conservation Act itself and encompass offences under regulations such as the Whitebait Fishing (West Coast) Regulations
1994.
[11] In concluding that s 43(2) did not apply to a charge for breaching regulations, the Judge placed significant weight on the provisions of the Interpretation Act 1999. He noted that s 30 defined “Act” as including rules and regulations made under an “Act” but that s 30 extended that definition only to words as used in legislation before 1999. Pursuant to s 29, the term “Act”, as used in legislation after 1999, had no such extended definition.
[12] Although the Conservation Act 1987 was passed before 1999, the District Court Judge was of the view that s 43(2) of that Act was amended on 1 July 2013 by s 413 of the Criminal Procedure Act 2011, legislation that was obviously after 1999. As a result, the Judge considered that the definition of the term “Act” in s 43(2) was to be determined in accordance with the s 29 definition rather than the extended definition under s 30.
[13] This meant that the use of the word “Act”, within s 43(2) of the Conservation
Act, did not, according to the Judge, include regulations made under that Act. The
12 month period for filing a charging document did not therefore apply. The charges the respondent faced were Category 1 offences under the Criminal Procedure Act
2011 so the six month limitation period applied. The charging documents filed against the respondent were thus held to be out of time and a nullity.
[14] The Judge held:5
In the case of the Conservation Act and the amendment by virtue of the Criminal Procedure Act 2011, it would have been easy to have said, “under this Act,” and include regulations or use the phrase referred to by counsel, “against this Act or against any regulations.” Parliament did not do that and one could draw the reasonable inference that Parliament intended the extended time to bring proceedings to apply only to the most serious offences, that is, those set out in the Act itself and even then, to shorten the timeframe in some instances.
Respondent’s submissions
[15] Mr Zindel argued that the District Court Judge’s reasoning and conclusions
were correct. He argued that it was appropriate to treat s 43(2) as substituted by s
413 of the Criminal Procedure Act 2011 as new legislation, not just an amendment of an earlier Act, because it was a substitution of a new provision rather than an amendment of an earlier provision.
[16] Mr Zindel referred to numerous instances where, within the Conservation Act, Parliament had, pre-1 November 1999, expressly used the phrase “against this Act or against any regulations” where Parliament considered that was necessary and appropriate. This was consistent with Parliament consciously deciding in s 43(2) that the 12 month time limit for prosecutions should apply only in respect of offences against the Act, rather than also regulations made under it. He said that such offences against the Act were generally more serious so that there was a logical explanation as to why, with the Criminal Procedure Act 2011, Parliament would have intended that a prosecution for an offence against the regulations would have to be brought within the shorter period of six months.
[17] Mr Zindel submitted the District Court decision would not necessarily have implications as wide as the appellant was suggesting because that interpretation resulted from 2011 legislation. There were many provisions in the Conservation Act which pre-dated 1 November 1999 to which s 30 of the Interpretation Act would apply so that, in those provisions, a reference to the “Act” would still include a reference to regulations made under the Act.
[18] Mr Zindel argued that courts had previously regarded it as significant that Parliament had not expressly referred to an Act and regulations made under it when, in other parts of that legislation, there had been such a reference to both the Act and regulations.6
[19] He argued that, because of that distinction, I should not assume that it would have been appropriate, even before the Criminal Procedure Act 2011, for a court to have proceeded on the basis that a prosecution for an offence under the regulations could have been brought within 12 months, rather than the six months limit that would have applied under the earlier Summary Proceedings Act 1957.7
[20] The submissions from Mr Hawes for the Crown are much reflected in the ensuing discussion.
The position before 1 November 1999
[21] Before the Criminal Procedure Act 2011 took effect, prosecutions for offences against the Conservation Act, or regulations made under it, were brought in accordance with the Summary Proceedings Act 1957. Section 14 of the Summary Proceedings Act stated:
14 Time for laying information
Except where some other period of limitation is provided by the Act creating the offence or by any other Act, every information for an offence (other than an offence which may be dealt with summarily under section 6 of this Act) shall be laid within 6 months from the time when the matter of the information arose.
[22] Section 43 of the Conservation Act was however as follows:
43 Proceedings for offences
(1) Subject to subsection (2), all proceedings in respect of offences against this Act shall be under the Summary Proceedings Act 1957.
6 Referring to New Zealand Racing Conference v Proceedings Commissioner [2001] NZAR 659;
Director of Human Rights Proceedings v New Zealand Thoroughbred Racing Inc [2002] 3
NZLR 333 (CA).
7 Port Nicholson Fisheries Ltd v Ministry of Agriculture and Fisheries (1990) 6 CRNZ 684 (CA)
at 688-690.
(2) Notwithstanding section 14 of the Summary Proceedings Act 1957, an information in respect of an offence against this Act may be laid at any time within 1 year of the time when the alleged offence was committed.
(3) Prosecutions and proceedings in respect of offences under this Act shall be commenced and taken in the name of the Director- General.
(4) The court by which any person is convicted of any offence against this Act may direct that any part (not exceeding half) of any fine recovered shall be paid to any person instrumental in securing the conviction (not being a person in the employment of the Crown acting in the course of the person’s official duties); and that part of the fine shall be paid to the person by the Registrar of the court in which the conviction is recorded.
(5) A direction of the court under subsection (4) shall not be entered in the conviction concerned, but shall form the subject matter of a separate order.
(6) When in any proceedings under this Part—
(a) a question arises as to whether any thing found in the possession of any person while that person is on or in the vicinity of any conservation area is the property of the Crown; and
(b) there are reasonable grounds to believe that the person was in possession of the thing without a right, title, or licence,—
the thing shall be presumed to be the property of the Crown unless the contrary is proved.
[23] Pursuant to s 4 of the Acts Interpretation Act 1924, “Act” meant an Act of
Parliament and included “all rules and regulations made there under”.
[24] Applying those provisions before the passing of the Interpretation Act 1999 and it taking effect from 1 November 1999, the time limit for charging someone with an offence against regulations made under the Conservation Act was the same as that for an offence against the Act itself, that is 12 months.
[25] In Port Nicholson Fisheries Ltd v Ministry of Agriculture and Fisheries, the appellant had been convicted in the District Court on a charge that, in breach of regulations under the Fisheries Act 1983, he possessed for sale under-sized crayfish.8
The charge had alleged contravention of a particular regulation which applied only to
8 Port Nicholson Fisheries Ltd v Ministry of Agriculture and Fisheries, above n 7.
commercial fishermen. In the Court of Appeal, the respondent argued that, although there had been a reference to the incorrect regulation, the appellant had still been charged with an offence because of s 93 of the Fisheries Act 1983 which stated:
General offences – Every person commits an offence who acts in contravention of or fails to comply with any provision of this Act, or any notice, direction, restriction, requirement, or condition given, made, or imposed under this Act.
[26] The Court of Appeal considered whether s 4 of the Acts Interpretation Act
1924 and the definition in it of “Act” made it an offence to sell or possess for sale under-sized crayfish. In discussing this, Hardie Boys J noted that there were a number of provisions in the legislation which made it expressly an offence to do certain things “in contravention of this Act or any regulation made or notice given under this Act”. He referred to a number of specific provisions in the Act, as amended, to hold that it would be inconsistent with the context of s 93 to apply s 4 so as to read the word “Act” where it was used in s 93 to include regulations made under the Act.
[27] The Court of Appeal there was dealing with a situation where it was being argued that, through s 4 of the Interpretation Act 1924, an offence that had been created under regulations with regard to commercial fishermen should be extended so as to create an offence for non-commercial people. The Court said such an approach did not have the advantage of that certainty which was to be expected when a penal sanction was imposed. It further held that a comparison with other provisions of the Act suggested that this was also not the legislative intention. That was the particular context in which the Court of Appeal ruled that a reference to “Act” in the legislation should not be read so as to extend to regulations made under the Act. It is very different from the situation the Court is dealing with here.
[28] In Director of Human Rights Proceedings v New Zealand Thoroughbred Racing Inc, the Court of Appeal were considering the potential application of the Human Rights Act 1993 to rules arising out of the Racing Act 1971.
[29] Section 44(1) of the Human Rights Act 1993 made it unlawful for any person who supplied facilities to the public to treat any other person less favourably in
connection with that by reason of marital status. At the time, s 151(1) of that Act provided that “except as expressly provided in this Act, nothing in this Act shall limit or affect the provisions of any other Act or regulation which is in force in New Zealand”. The issue before the Court of Appeal was whether the provisions of the Human Rights Act 1993 could apply to rules under the Racing Act 1971. The Court of Appeal confirmed that it had been held, rightly in their view, that the rules were not an act or a regulation as those words were defined in s 29 of the Interpretation Act 1999. The rules were thus not directly shielded from the operation of the anti- discrimination provisions of the Human Rights Act 1993.
[30] I also note that, in the High Court, McGechan J, in coming to the same view, considered it significant the rules made by the Racing Conference were not made under an Act “by the Governor-General and Council or by a Minister of the Crown”. In contrast, regulations under the Conservation Act may be made by the Governor-
General by order in Council.9
[31] The Court of Appeal’s judgment is not authority for the proposition that a statutory provision extending the time for prosecutions to be brought under “the Act” should not be interpreted to extend the time for prosecutions to be brought for offences against regulations made under the Act.
[32] Although I was told that a Westlaw search provided 32 examples where Parliament had used the phrase “against this act or against any regulations” in the Conservation Act, I was not referred to any particular provisions which might have suggested that it was Parliament’s intention that the limitation period for prosecuting offences under the Act of 12 months in s 43(2) should apply only to offences against the Act, rather than regulations made under it.
[33] Thus, before the Interpretation Act 1999, by virtue of s 43(2) of the Conservation Act and s 4 of the Interpretation Act 1924, there was no ambiguity or uncertainty. A prosecution for an offence against regulations made under the Act
could be brought within 12 months of the offence.
9 Conservation Act 1987, s 48.
The position after 1 November 1999
[34] The following provisions now apply:
29 Definitions
In an enactment, -
Act means an Act of the Parliament of New Zealand or of the General Assembly; and includes an Imperial Act that is part of the law of New Zealand:
Enactment means the whole or a portion of an Act or regulations:
30 Definitions in enactments passed or made before commencement of this Act
In an enactment passed or made before the commencement of this Act, -
Act includes rules and regulations made under the Act:
[35] Thus, under s 29 (applying from 1 November 1999), “Act” does not include regulations made under the Act. By virtue of s 30, a reference to “Act” in legislation passed before 1 November 1999 included rules and regulations made under the Act.
[36] At 1 November 1999, the Conservation Act 1987, including the original s
43(2) referred to above, was an enactment passed before the commencement of the Interpretation Act 1999, that is, before 1 November 1999. Section 30 of the Interpretation Act 1999 thus applied. The reference to “Act” in s 43(2) thus also referred to regulations made under the Act.
The position after 1 July 2013
[37] Schedule 3 to the Criminal Procedure Act 2011 sets out the amendments that were required to many Acts to recognise the way it had replaced the Summary Proceedings Act 1957. Those amendments took effect on 1 July 2013. As a result, changes were made to s 43(1) as follows:
(1) Subject to subsection (2) of this section, all proceedings in respect of offences against this Act shall be under the [Criminal Procedure Act
2011].
(2) Despite anything to the contrary in section 25 of the Criminal Procedure
Act 2011, the limitation period in respect of an offence against this Act
ends on the date that is 12 months after the date on which the offence was committed.
(3) Prosecutions and proceedings in respect of offences under this Act
[may] be commenced and taken in the name of the Director-General.
[38] With the amendment, s 43(2), as set out at [22], was repealed and the new provision substituted. The remaining subsections (4) to (6), as set out at [22], were unaltered.
[39] The District Court Judge had said that, if Parliament had intended s 43(2) to apply to a charge for an offence against the regulations, it would have been easy for Parliament at that time to have used, in the new s 43(2), the words “against this Act or against any regulations”. The Judge was thus willing to proceed on the basis that, in substituting the new s 43(2), Parliament had intended to reduce the time within which a charge could be brought for an offence against the regulations.
[40] I accept Mr Hawes’ submission that, given the way s 43 of the Conservation Act was amended, it should not have been assumed that it was Parliament’s intention to make a substantive change to the limitation period within which a prosecutor must file charges. All the amendment to s 43 did was to provide for criminal proceedings to be brought under the Criminal Procedure Act 2011 instead of the Summary Proceedings Act 1957.
[41] The learned author of Burrows & Carter on Statute Law in New Zealand
states:10
Schedular amendments thus highlights the distinction between substantive and consequential amendments. Substantive amendments are the main changes to the law, and so are the main contents of an amending Act. Consequential amendments (often called simply “consequentials”), by contrast, are those made “as a consequence of” substantive amendments. A substantive amendment might, for example, rename the Complaints Review Tribunal as the Human Rights Review Tribunal. If so, consequential amendments to various enactments would recognise that new name. New Zealand practice has been, and is currently, generally to show substantive amendments in the body, and consequential amendments in a schedule, of an amending Act.
10 R I Carter Burrows & Carter on Statute Law in New Zealand 95th ed, LexisNexis, Wellington,
2015) at 673 (footnotes omitted).
[42] The amendment to s 43(2) was a consequential schedular amendment. It was consequential on the revocation of s 14 of the Summary Proceedings Act 1957 on 1
July 2013 by the Summary Proceedings Amendment Act (No 2) 2011. It was this Amendment Act which constituted the substantive amendment. Because the amendment to s 43(2) was by way of a consequential amendment, the Judge could not have assumed Parliament intended to make a substantive change to the limitation period for bringing a prosecution.
[43] I also accept Mr Hawes’ submission that, if the use of the words “against this Act” are to be interpreted in the way the District Court Judge found, it will have operational implications and create uncertainties and practical difficulties that it might have been expected Parliament would want to address if it had been contemplating making substantive changes to the Act.
[44] For instance, s 40 of the Conservation Act sets out powers of seizure, stopping of vehicles, ships, aircraft, etc and powers of investigation where a warranted officer reasonably believes there has been a breach of the “Act”. Section
45 makes offenders liable for loss or damage where there has been an offence against the Act. Section 46 provides for the potential forfeiture of property where a person is convicted for any offence against this Act.
[45] Those provisions were not amended by the Criminal Procedure Act 2011 and were in effect before 1 November 1999. Applying s 30 of the Interpretation Act
1999, the reference to “Act” in those sections would thus be deemed to refer also to an offence against the regulations. However, one can see that there could well be practical difficulties for investigating officers if, at the time, they suspected an offence had been committed or were investigating the potential for an offence to have been committed, they were uncertain as to whether the matter they were investigating could involve an offence against either the regulations or the Act where different limitation periods for bringing a charge could apply.
[46] I also accept Mr Hawes’ submission that, if the Judge’s interpretation is correct, the word “Act” would have to be interpreted differently in different parts of the same section. In ss 43(1), (3) and (4), the term “Act” would be deemed to
include a reference to regulations under the Act. In s 43(2), the term “Act” would not extend to regulations made under the Act.
[47] Such an inconsistency does not sit easily with the observation made by the
Court of Appeal:11
[20] There is a general rule of construction that the drafter is presumed to have used words consistently throughout the legislation. While the presumption may be displaced it is nevertheless a convenient starting point to interpretation, particularly where, as here, the term in question is used frequently within a confined part of a statute addressing a specific topic.
[48] I also accept the submission that the inconsistency in meanings cannot necessarily be explained by assuming that Parliament intended a six month limitation period to apply to less serious offences against the regulations but not to more serious offences under the Act. There are offences under the Act for which the maximum penalty is only a $5,000 fine, for example, s 26ZQA which makes it an offence to possess live grass or silver carp without approval and, similarly, s 26ZI which makes it an offence to take sports fish without a licence. Those maximum penalties are the same as attach to the offences the respondent was charged with under the regulations.
[49] The District Court Judge’s conclusion as to the way s 43(2) is to be applied was thus surprising, having regard to normal principles of statutory interpretation and the consequences the interpretation would have on the application of the Conservation Act generally. The Judge however said it was an interpretation which was appropriate and necessary because s 43(2) was a statutory provision enacted after 1 November 1999 having been made by s 44(1)(3) of the Criminal Procedure Act 2011. He held he was thus required to interpret it in accordance with s 29 of the Interpretation Act 1999 so that “Act” did not include regulations made under it.
[50] However, I accept the submission for the appellant that, in doing this, the
Judge took no account of s 23 of that Act. I note the Judge’s attention was not drawn
to s 23 in a memorandum which the then counsel for the prosecution presented to
11 Jetstar Airways Ltd v Greenslade [2015] NZCA 432, [2015] ERNZ 71 (footnotes omitted). See also Supreme Court’s observation as to the way a drafter normally uses words consistently throughout an Act in Elders New Zealand Ltd v PGG Wrightson Ltd [2008] NZSC 104 at [30].
him when he had to consider this matter in the District Court. He does not mention s
23 of the Interpretation Act 1999 in his judgment.12
[51] Section 23 states:
23 Amending enactment part of enactment amended
An amending enactment is part of the enactment that it amends.
[52] Applying s 23, s 43(2) thus becomes part of the Conservation Act 1987, an enactment passed before 1 November 1999 to which s 30 continues to apply.
[53] Section 5(c) of the Acts Interpretation Act 1924 used to provide as follows:
Every Act passed in amendment or extension of a former Act shall be read and construed according to the definitions and interpretations contained in such former Act; and the provisions of the said former Act (except so far as the same are altered by or inconsistent with the amending Act or Acts) shall extend and apply to the cases provided for by the amending Act or Acts, in the same way as if the amending Act or Acts had been incorporated with and formed part of the former Act:
[54] The author of Burrows and Carter on Statute Law in New Zealand notes that the content of s 5(c) is not repeated in the Interpretation Act 1999 “presumably on the basis that since, under s 23, all amendments are part of the principal Act, it is unnecessary”.13
[55] Section 43(2), as substituted by the Criminal Procedure Act 2011, was an amending enactment, as that term is used in s 23. It thus became part of the original Conservation Act 1987 to which s 30 applies, so that the term “this Act”, as used in s
43(2), includes rules and regulations made under the Act.
[56] Because of s 23 of the Interpretation Act 1999, Parliament would not have considered that, in enacting the Criminal Procedure Act 2011, they were making a substantive change to the time within which a prosecution had to be brought for an
offence against regulations made under the Act.
12 Neither the Crown solicitor nor anyone from his firm appeared for the prosecution when the matter was argued in the District Court.
13 Carter, above n 10, at 678.
Conclusion
[57] I must thus conclude that, on the question of law on which leave to appeal has been granted, the Judge was in error in concluding that the phrase “offences against the Act”, contained in s 43(2) of the Conservation Act 1987, did not apply to offences made under the regulations to that Act.
[58] The Judge’s decision to dismiss the charges was thus based on an error of law. Mr Zindel told me that, because of constraints on the availability of witnesses, the Judge did hear some but not necessarily all of the evidence that might have been adduced for both the prosecution and the defence at the hearing. The legal issue and his determination, resulting in a dismissal of the charges, was dealt with through legal argument part-way through the hearing.
[59] Against that background, I quash the decision dismissing the charges against the defendant. The proceedings are remitted back to the District Court with the Court to deal with the charges on the basis they were brought within the applicable limitation period provided for under s 43(2) of the Conservation Act.
[60] I make no order as to costs.
Solicitors:
Raymond Donnelly & Co., Christchurch
Zindels, Nelson.
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