New Zealand Law Society - Non-prosecution decision flawed but understandable

Non-prosecution decision flawed but understandable

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A decision not to prosecute five fishing vessels found to be discarding quota fish, and in particular the process leading to it was flawed, an independent review of fisheries prosecution decisions by Michael Heron QC has found.

However, Mr Heron says the decision, in "Operation Achilles", was understandable and available in the circumstances. He says it was a complex matter, approached professionally and in good faith by all involved.

The report, Independent Review of MPI/MFish Prosecution Decisions Operations Achilles, Hippocamp and Overdue, was commissioned in May 2016. It followed the release of research by the University of Auckland Business School suggesting that fish without economic value caught in New Zealand fisheries had been routinely dumped at sea and not reported.

Further reports that New Zealand fishing boats have been illegally dumping quota fish resulted in criticism of Ministry of Primary Industry (MPI) decisions not to prosecute after two operations - Hippocamp and Achilles - gathered information on fishing activities.

After reviewing relevant documentation and interviewing "approximately" 25 people, Mr Heron finds that the conduct of the Ministry of Fisheries and MPI created hurdles to the Achilles prosecution which should not have been present. He says that conduct was in appropriate or at least unhelpful.

"The decision process was confused, not well documented and not well communicated," he says.

Mr Heron says relevant guidelines could provide more helpful guidance in complex regulatory prosecutions such as those considered in his report. He says it would be useful and timely for MPI to work with Crown Law to review and revise guidance.

MPI response

Accepting the review findings, MPI Director-General Martyn Dunne says the way in which the decision not to prosecute over the apparent dumping of quota fish was made is regrettable.

"It was also disappointing that the process was characterised by confusion and a lack of adequate documentation and communication," he says.

Mr Dunne says MPI has a number of actions underway which will address matters arising from the report.

These include a review of compliance functions with the aim of providing clearer national leadership and accountability for fishery compliance, and reviewing and updating MPI's prosecution policy andf guidelines with input from Crown Law.

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