Purpose
Kaupapa

Manatū Taonga Ministry for Culture and Heritage is responsible for administering cultural and heritage legislation.

The Ministry has a responsibility to enforce provisions of these Acts by investigating possible breaches and taking appropriate action, including prosecution of offences where it is determined to be in the public interest to do so, following an analysis of all relevant considerations.

The purpose of this Policy is to:

• provide a clear framework for enforcement decisions
• ensure enforcement is consistent, timely, fair and effective.

Authority for the policy 
Nā wai te kaupapa 

The Chief Legal Officer is the policy owner and is responsible for the implementation and maintenance of the policy. Contact them for help with this policy

Principles 
Ngā mātāpono

1. The Ministry will investigate alleged or suspected unlawful behaviour in a way that is lawful, fair and reasonable.

The Ministry will consider efficient use of resources, and maintenance of public trust in its authority to collect information. Investigation methods should, to the extent possible, ensure the success of any following enforcement action.

Enforcement action should be appropriate, proportionate, and timely, taking into account the circumstances of each case.

Prosecution is one of several responses the Ministry may use when administering the Acts. The fundamental objective of any prosecution is to hold those accountable who commit offences.

In exercising enforcement powers, the Ministry will have regard to the likelihood that the desired outcome will be achieved in a cost-effective manner. Another goal of enforcement is to improve compliance.

Enforcement will be applied consistently across all sectors, administered fairly and comply with the statutory powers of the Ministry and the principles of natural justice.

Scope

2. This policy policy covers: 

• Principles and criteria for enforcement decisions.
• The process for investigating breaches.
• Enforcement actions taken by or on behalf of the Ministry.

Relevant legislation is listed in Āpitihanga 1 | Appendix 1.

Policy statements
Ngā taipitopito o te kaupapa

3. Decision to investigate

The relevant tier 3 manager (or equivalent) will decide whether the Ministry will conduct an investigation. The relevant manager is responsible for the conduct of the investigation.

They may decide to investigate possible unlawful behaviour on receipt of a complaint or other written notice from an individual, organisation, or another government agency, or if a matter comes to its attention from its own monitoring processes.

To investigate a complaint, the Ministry should be satisfied that there is enough evidence to justify further action. A complaint should include specific details like time and the nature of the behaviour. A bare allegation or simple assertion of wrongdoing is not enough. Vague or unsupported claims are unlikely to be investigated.

3.1 Investigation Process

Once an investigation begins, the Ministry will:

• Gather facts and evaluate to determine if a breach occurred.
• Contact relevant parties.
• Ensure information sources are reliable.
• Report any illegally obtained information to the Police.

Where a decision is taken to investigate the Ministry will gather relevant information carefully to ascertain the facts and to evaluate whether there has been a breach of the relevant Act. This involves considering whether the facts disclose a breach and whether any exclusion or defence is likely to apply.

As part of the investigation the Ministry should contact any parties the Ministry considers relevant to the investigation. The Ministry should check that all sources of information are appropriate and reliable, including any originating complaint. If the Ministry becomes aware that any information provided has been illegally obtained by a third party it will report the matter to the New Zealand Police.

The Ministry is authorised to collect, hold, and use personal information in the investigation of possible offences. The Ministry should always comply with the Privacy Act 2020 and staff should uphold the Standards of Integrity and Conduct1. External consultants may assist with information gathering but should follow the same ethical standards as Ministry staff.

The Ministry will notify the alleged offender to seek context and give them an opportunity to respond to the matter unless in the circumstances there is a good reason why the alleged offender should not be contacted. Where practicable the alleged offender will have an opportunity to be heard.

Although the alleged offender has the right to know details of the complaint, the Ministry should not disclose personal information of any complainant. This is consistent with the approach of all prosecuting agencies. It is important that members of the public feel free to provide information about possible unlawful behaviour without fear of their identity being disclosed.

The Ministry is not an enforcement officer under the Search and Surveillance Act 2012 and may not exercise powers under that Act. Legal advice should be sought if search or surveillance is needed.

Each complaint will vary according to complexity. Reasonable endeavours should be made to complete each investigation promptly.

On completion of the investigation, the Ministry will produce a final report and a recommended outcome on enforcement action.

The Ministry’s legal team is available to advise staff at any stage of an investigation and should be consulted immediately if it becomes likely that formal legal action will be taken.

3.2 Decision to prosecute

The Secretary for Culture and Heritage and Chief Executive (Secretary), on advice from the investigating manager and the Chief Legal Officer, will decide whether to commence a prosecution or other formal legal proceedings.

If the investigation discloses that an offence has likely been committed, and the Ministry considers the circumstances warrant it, the Ministry may begin a prosecution.

The Chief Legal Officer and the manager responsible for the investigation should agree that prosecution is appropriate and take advice from the Crown Law Office (or a Crown Solicitor) before recommending to the Secretary a prosecution be commenced.

Any enforcement action, whether it be a formal warning, prosecution, or other legal proceedings, should be subject to a process that considers:

• criteria of the relevant Act
• evidential sufficiency
• public interest factors.

In general, it is more likely that the Ministry will consider prosecution for recidivist or serious non-compliance, and that unintentional and one-off non-compliance will warrant some other enforcement action. However, the Ministry should exercise its judgement as to whether it will prosecute or take other enforcement action in the particular circumstances of each case.

Where prosecution is contemplated, evidential sufficiency and public interest tests must be analysed based on the circumstances of the case. These tests follow the Solicitor-General’s Prosecution Guidelines.

Prosecution guidelines (Crown Law)

The Evidential Test includes having reliable and admissible evidence showing an offence likely occurred, and that evidence is sufficiently strong to establish a prima facie case.

The Public interest Test suggests prosecution is justified based on factors such as seriousness, intent, repeat behaviour, and efficient use of resources. Some of the factors to consider are:

• how serious was the offence?
• are there any mitigating or aggravating circumstances?
• was the offence premeditated?
• have there been previous warnings?
• has the offence resulted in financial gain to the alleged offender, or financial loss to another individual or organisation?
• are there grounds to believe that the offence is likely to be continued or repeated?
• is prosecution an efficient and effective use of Ministry resources?
• would prosecution be consistent with Ministry action in similar circumstances?

No one factor will determine the decision to prosecute or not, but all relevant factors should be considered, including advice from the Crown Law Office. While cost alone is not a determining factor, it is relevant to the public interest. The Ministry should respond consistently when dealing with similar cases but will take the specific circumstances of each case into account.

Prosecution process

The legal team will coordinate this process and will either act themselves or instruct any Crown Solicitor to act as the prosecutor and file the charges in the appropriate Court.

The Ministry should ensure that any prosecution is conducted fairly and impartially. Prosecutors acting on behalf of the Ministry should:

• Present the case in a balanced and transparent manner.
• Disclose all relevant evidence, including that which may assist the defence.
• Avoid pursuing convictions at all costs.

The Ministry must also ensure that victims are treated with respect and kept informed, in line with the principles of the Victims’ Rights Act 2002.

The Ministry will liaise with Crown Law to seek the Attorney-General’s consent where required by the relevant legislation. In practice this role is undertaken by the Solicitor-General. This will include the Ministry providing a copy of the information and sufficient evidential material.

The Criminal Disclosure Act 2008

Where the Ministry commences proceedings, it must comply with the Criminal Disclosure Act 2008. The purpose of that Act is “to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings”. The Chief Legal Officer will be responsible for meeting the various obligations of this Act.

Choice of proceedings

A possible alternative to a charge under an Act is an application under the Criminal Proceeds (Recovery) Act 2009 (CP(R)A) for a profit forfeiture order if actions of the person are considered to amount to ‘significant criminal activity’. ‘Significant criminal activity’ is defined in section 6 of the CP(R)A, and includes,‘activity engaged in by a person that if proceeded against as a criminal offence would amount to offending… from which property, proceeds or benefits of a value of $30,000 have, directly or indirectly, been acquired or derived’. Action under the CP(R)A is brought by the Commissioner of Police.

Appeals

The Secretary will decide whether to appeal any court decision against the Ministry, on advice from the Chief Legal Officer. Any appeal from a court decision requires the consent of the Solicitor-General.

Appeals should only be pursued where there is a reasonable prospect of success and where it is in the public interest to do so. Appeals must not be used to challenge outcomes simply because they are unfavourable to the Ministry.

4. Other enforcement action

4.1 Formal warning

A decision may be made by the Ministry not to prosecute an individual, but to issue a formal written warning that a breach has occurred, and no prosecution will be taken in respect of that breach at this time.

Examples of when a formal warning may be appropriate include:

• a minor or technical breach has occurred
• the breach is clearly unintentional
• the matter is one that has been quickly remedied and put right.

4.2 Other compliance actions

The Ministry has other options for improving compliance with legislation, including:

• taking an educative approach by providing the person under investigation with information to ensure they are aware of their obligations and the consequences of noncompliance.
• issuing informal warnings to prevent future breaches.

4.3 Reporting

The Ministry may publish investigations reports publicly on a case-by-case basis. The Ministry will decide how much of an investigation it will publicly report, having regard to the privacy of the individuals, public interest in maintenance of the law, and the responsibility of individuals to comply with legislation.

Review of the policy
Te tātari me te whakahou

Review of this policy is due annually or when required.

Appendix: Legislative framework

Broadcasting Act 1989

The Ministry administers Parts 1-4, which means it is responsible for enforcement of breaches of several sections.

Broadcasting Act 1989 (NZ Legislation)

A summary of each offence and its penalty are set out below:

The penalty for an offence under sections 14, 30G is a fine up to a maximum of $100,000. This means the District Court has jurisdiction over the offence as a category 1 offence under the Criminal Procedure Act 2011 (CPA).

A charging document may be filed up to 5 years after the date an offence is committed in relation to a category 1 offence with a maximum fine greater than $20,000, unless the prior consent of the Solicitor-General has been obtained to file a charging document after that date (section 25(3)(c) of the CPA).

As the penalty for an offence against section 30 is a fine not exceeding $5,000, it is also a category 1 offence under the CPA. Under section 25(3)(a)(ii) of the CPA charges for offences that have a penalty not including imprisonment but including a fine not exceeding $7,500 must be laid within 6 months after the date on which the offence was committed.

Flags, Emblems, and Names Protection Act 1981

The Flags, Emblems and Names Protection Act 1981 (FENPA) regulates the use of the New Zealand Flag, and contains provisions regarding unauthorised use of the word ‘Royal’, the Coat of Arms and other symbols of national identity, and use of words relating to the New Zealand government.

The offences under the Act are set out below:

There is a general penalty covering offences under the Act (section 24): 

• in the case of an individual, a fine not exceeding $5,000:
• in the case of a body corporate, a fine not exceeding $50,000 and, where the offence is a continuing one, a further fine not exceeding $5,000 for every day during which the offence has continued.

Section 20AAA is an exception and states a specific penalty for offences against that section: in all cases a fine not exceeding $2,000.

Court jurisdiction

All the offences in FENPA are Category 1 offences.  This means the District Court has jurisdiction over the offence under the Criminal Procedure Act 2011 (CPA).  

Timeframes

All offences under FENPA are Category 1 offences.  Under section 25(3)(a)(ii) of the CPA, charges for offences that have a penalty not including imprisonment but including a fine not exceeding $7,500 must be laid within 6 months after the date on which the offence was committed. Section 25(4) of the CPA provides that the timeframe must be determined by reference to the maximum fine that may be imposed for the initial offending, where the offence is a continuing one.  Section 25(5) provides that the same timeframes apply to offences involving body corporates irrespective of the penalty that may be imposed against the body corporate. Accordingly, the timeframe for commencing proceedings under FENPA is 6 months after the date an offence is committed.

Protected Objects Act 1975

The Protected Objects Act 1975 (POA) regulates the export and import of protected New Zealand objects and foreign objects, the sale and trade of taonga tūturu (Māori objects more than 50 years old), and the ownership of newly-found taonga tūturu.  Amendments to the POA that came into force in 2007 enabled New Zealand to accede to two international conventions, increasing international protection for New Zealand heritage objects.

Protected Objects

List of offences

Summaries of each offence under the POA, its penalty and category of offence under the Criminal Procedure Act 2011 (CPA) are set out below:

Offences relating to export

Offences relating to taonga tūturu 

Court jurisdiction

With the exception of the offences under section 5 and section 18A of the POA, the above offences are all Category 1 offences. This means the District Court has jurisdiction over the offence under the CPA.  The two category 3 offences come under the jurisdiction of the District Court unless the matter is transferred to the High Court. 

Timeframes

The CPA sets out timeframes for lodging charges based on the category of offence. Section 10(5) of the POA provides a specific time frame for commencing a prosecution in relation to the offence of export without permission (section 5), which overrides the CPA.  That time limit is 5 years. 

As section 18A of the POA (wilful damage) carries a penalty of up to 2 years’ imprisonment, under section 25(2)(a) of the CPA charges must be filed within 5 years after the date on which the offence was committed, unless the prior consent of the Solicitor-General is obtained to file a charging document after that date. 

All other offences under the Act are category 1 offences and have a time frame for commencing proceedings of 12 months after the date an offence is committed.