The 2020 review
The Schmidt-McCleave review was commissioned by MPI in 2020 in response to two serious incidents reported in 2019 (sexual assault, and sexual harassment). Her review revealed that harassment and intimidation of NZ fisheries observers was a persistent and underreported issue. While many crews were habitually well-behaved towards observers others were openly hostile. The investigator notes:
“Sadly, due to the unique and challenging nature of the roles of observers and supervisors as I have outlined in this report, bullying and harassment has occurred extensively…. This has not always been reported… historically both observers and supervisors have viewed it simply as part of the role.”
She goes on to mention some of the overarching concerns reported by the observers she interviewed:
“The fear of becoming a target and being isolated from others, especially when onboard a vessel and away from support. There is also the potential to impact future work if an observer reports an incident, in terms of the vessels that observers may be able to go on. For example, an observer who enjoys the tuna season may feel reporting an incident could reduce their ability to observe other vessels in this fishery due to the small fleet or risk mitigations that are put in place.”
“Witnessing poor treatment of others on vessels who have previously reported inappropriate conduct.”
“A lack of trust in those on board the vessel to have the immediate ability to respond appropriately and provide adequate support to complainants.”
While the vast majority of her recommendations in her review have been fully implemented one remains outstanding:
“Consideration should be given at a policy level to legislative amendment to align observers’ protections with the legal protections of fisheries officers.”
Is Schmidt-McCleave’s direct alignment with fisheries officers necessary?
Given fisheries officers and observers have very different roles and responsibilities (with the former having a specific law enforcement role) direct alignment of protections may be not be appropriate. One possibility is Section 225 of the Act could be altered to have a specific offence should a crew member harass, intimidate, obstruct, or interfere with a fisheries observer in the performance of their duties. Such an offence could operate under a civil contravention meaning that it would be a civil rather than criminal offence, thereby allowing action on the lower standard of balance of probabilities rather than beyond reasonable doubt (which is required for criminal prosecutions).
New Zealand law recognises that certain types of misconduct occur in inherently isolated environments, and these do not automatically require corroboration (e.g. sexual offending). Fisheries observers operate in similarly isolated environments. Given that MPI has a stated zero-tolerance policy with regard to observer abuse and harassment, the ability to prosecute such offences under civil law could result in a practical enforcement pathway and act as a significant deterrent.
