MPI chose not to prosecute fish dumping out of fears of embarrassment, law still regularly broken, review says

Ministry for Primary Industry officials feared embarrassment in electing not to prosecute fishing companies that may have been illegally discarding fish, according to a Queen's Counsel hired to conduct an independent review.

Michael Heron QC was commissioned for the review by MPI director-general Martyn Dunne in May after media reports critical of MPI investigations in 2012 code-named Hippocamp, Achilles, and Overdue. Heron said the ministry wasn't obliged to prosecute or take other compliance action with respect to Overdue and Hippocamp, but the decision and process leading to MPI not prosecuting after the Achilles operation was flawed.

Operation Achilles took place after MPI installed monitoring cameras on six set net commercial fishing vessels to monitor the capture of Hectors dolphins in November 2012. The footage revealed five of the ships had dumped quota fish, and MPI investigated but decided not to prosecute, letting the skippers off with a warning instead.

"The prosecution decision was affected by considerations which were not relevant under the guidelines," Heron said in his review. "In particular, potential embarrassment to MPI or officials was an irrelevant consideration. Earlier conduct of MFish and MPI created hurdles to the prosecution which shouldn't have been present. That conduct was inappropriate or at least unhelpful."

A review of emails sent after the decision not to prosecute was made, along with interviews Heron conducted, suggested that a reason for not prosecuting was that it would be "less damaging to MPI and more constructive in changing fishers behaviours", the review said.

"The less damaging to MPI reference appears to be to the IEMRS [electronic monitoring] project but also likely included the issues relating to (a) previous MPI conduct regarding discards; and (b) questions around the ability to use the camera footage and what was said to the skippers in gaining their consent."

Heron said the investigation process was confusing and involved people who weren't named in MPI's prosecution policy, while not enough weight was given to the views of the Crown Solicitor on some of the issues relevant to the decision.

Practices haven't improved in the wake of the decision not to prosecute, the report said.

"The decision process was confused, not well documented and not well communicated," Heron said. "The follow-up actions do not seem to have been thoroughly completed. The decision to warn was meant to be combined with "drawing a clear line in the sand". That does not seem to have been achieved. Some steps have been taken but the situation as to discards remains confused."

The law around fish dumping "appears to be regularly disobeyed" and the outcome of the case had caused confusion amongst MPI compliance officers because Fisheries Management had not properly addressed with fishers what would occur if evidence of offending was obtained, the report said.

Still, Heron said the decision was "understandable and available in the circumstances" and had been "approached professionally and in good faith by all involved."

The QC said the limitation period for prosecution had passed for this case, but those limits may warrant review in light of changes to the Criminal Procedure Act.

"Relevant guidelines could provide more helpful guidance in complex regulatory prosecutions such as these," Heron said. "It would be useful and timely for MPI to work with Crown Law to review and revise guidance."

In a statement, MPI's Dunne said the ministry accepts the findings, and is reviewing its compliance functions, reviewing and updating its prosecution policy with input from Crown Law, ensuring there is protocol in place to respond to any potentially illegal activity it comes across in the course of research, and developing communications procedures for its staff.

Separately, State Services Commissioner Peter Hughes said he backed MPI's response and that Dunne "has done everything I would expect a public service chief executive to do in a situation like this."

(BusinessDesk)

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