Maritime New Zealand’s Formal Warning Letter Policy
The policy ensures:
- a consistent approach to the use of formal warnings in the appropriate circumstances; and
- we meet the principles of natural justice when formal warnings are administered; and
- that when addressing conduct that could be criminal, any response taken will follow due process and public interest considerations, while at the same time not overburdening the Courts with matters that can be effectively resolved through other enforcement routes.
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Maritime NZ’s Compliance Operating Model describes how Maritime NZ manages compliance to achieve the best outcomes in its role as guardian of the maritime environment. Formal Warning Letters are one of the compliance interventions available to Maritime NZ.
This policy applies in circumstances where a formal warning is considered as an appropriate compliance response, being a warning that:
- is delivered to a person, either natural or legal (this includes a corporation sole, a body corporate, and an incorporated body, skippers, or the company that owns the vessel for example.);
- is related to behaviour that Maritime NZ considers could amount to criminal conduct;
- is recorded on the file of the person who has been warned; and
- may have ongoing or future disadvantages for the person.
This policy may be indirectly relevant, but is not intended to apply to:
- informal verbal warnings where the warning is not recorded for future references;
- warnings that are given in lieu of issuing an infringement notice;
- alternative means of disposing criminal matters, for example an enforcement undertaking.
This policy should be read together with the Solicitor-General’s Prosecution Guidelines as well as the Solicitor-General’s Guidelines for the Use of Formal Warnings.
Purpose of a formal warning letter
Warning letters, where appropriate, are issued by the Deputy Director with operational oversight following a formal compliance investigation. They are held on the person’s file for at least five years.
Maritime NZ may issue formal warnings for a range of different purposes, for example, to:
- show that Maritime NZ takes the matter seriously;
- impress on the person that the behaviour the person has engaged in amounts to criminal conduct that could otherwise be prosecuted but the agency has chosen not to prosecute;
- mitigate the risk of the behaviour recurring in the future;
- give the person an opportunity to amend or address the behaviour to avoid the risk of prosecution in the future;
- send a signal to the person and others in similar situations, including the general public.
Maritime NZ will consider a formal warning held on a person’s file when:
- a person applies or renews various maritime documents, such as a Maritime Transport Operator Certificate (MTOC) or a Master certificate;
- assessing whether a person is a fit and proper person to hold any maritime document;
- investigating any future related conduct that may amount to an offence. This includes as a matter of compliance history when determining whether a prosecution is warranted.
Maritime NZ will also consider any mitigating factors recorded on the formal warning in favour of that person. For example, this might be an expression of remorse and/or acceptance of responsibility.
Circumstances where a warning letter may be appropriate
Maritime NZ will only consider issuing a formal warning letter when an investigation has been concluded and the evidential sufficiency test has been met after following Maritime NZ’s Investigations and Prosecutions Procedure. If there is insufficient evidence to prosecute, then a warning letter cannot be issued.
A formal warning letter is considered inappropriate for serious and/or repeated incidents. A serious incident may involve, for example, significant injury to a person or significant damage to the environment. A formal warning letter is also inappropriate for a major or significant breach of maritime standards or requirements, even if the incident may not have resulted in an injury and/or death.
A formal warning letter is considered appropriate for incidents where the loss or harm is minor and caused by a genuine mistake, or in circumstances where a prosecution is likely to have a detrimental impact on a victim. It may also be appropriate where an incident is unlikely to be repeated in the future, or in circumstances where the alleged offender has rectified the loss or harm caused.
Maritime NZ also considers our statutory objectives and enforcement priorities, in determining whether or not a formal warning may achieve any of these objectives.
Process for issuing a formal warning letter
Where an investigation has concluded and there is sufficient evidence to prosecute, a warning letter may be considered as an alternative to prosecution.
The decision to start the process of issuing a formal warning in lieu of starting a prosecution sits with the relevant Deputy Director. Once the decision to start the process has been made, an initial letter of engagement must be prepared by the assigned Investigator or Maritime Officer.
The initial letter of engagement is intended to provide the person with the opportunity to engage with Maritime NZ in the process. It is also intended to give effect to natural justice by informing the person concerned of the potential adverse findings for comment before a final decision to issue a warning is reached.
The initial letter of engagement must outline:
- the key facts that led to the decision to initiate a formal warning process;
- the reasons for issuing the warning (such as those outlined in under ‘Purpose of a formal warning letter’ above);
- the consequences of a formal warning. For example: how long it will be kept, how it will be used, and that a formal warning may be considered by Maritime NZ when the person applies for a maritime document and/or is being assessed as a fit and proper person); and
- an invitation for the person to respond on the alleged conduct and a potential warning letter within 10 working days (with the ability to request further time if needed, such as time to obtain legal advice).
If a response has been received, this will be taken into account in the final decision on whether or not to issue a formal warning. Any response received can be taken into account in a number of ways by the Deputy Director when issuing a formal warning, including:
- if the response provided shows that there was an absence of fault and/or the person put forward relevant mitigating factors, this will be assessed by the Deputy Director in the final decision as to whether or not a formal warning should be issued;
- if the response provided acknowledges fault and/or provides consent to the formal warning to be issued, the formal warning may be issued and the acknowledgement/consent must be recorded in the finalised formal warning document to show that the person has shown remorse and accepted responsibility;
- if the person did not respond or did not consent to the formal warning being issued, this must also be recorded in the finalised formal warning document and must be balanced against the strength of the evidence on the file. A formal warning can still be issued provided the evidence on the file is strong and there was no viable defence, and that evidence must be set out in the warning letter.
The final formal warning letter will set out the following (and may contain materials that have been communicated in the earlier letter of engagement with the person):
- an accurate summary of the key facts that led to the issue of the warning;
- the reasons for issuing the warning;
- the consequences related to the warning (as outlined in the initial letter of engagement);
- the person’s responses to the alleged conduct and adverse findings, including whether or not they have consented and/or acknowledged fault – if no response was provided or the person has refused to engage with the process, the letter must set out the evidence gathered during the investigation that concluded there was sufficient evidence to prosecute. In circumstances where there was no viable defence, this must also be set out;
- the right to have this formal warning internally reviewed by an independent person within 20 working days from the date the formal warning was issued;
- the formal warning letter should not assert or imply that an offence has been committed or is proven beyond reasonable doubt. However, a formal warning may set out that, in Maritime NZ’s view, such conduct or behaviour may amount to a specific offence and that if repeated in the future, a prosecution may be considered.
A formal warning is recorded in Maritime NZ’s internal database and will be held for at least five years. Once a period of five years has passed, the formal warning should either be deleted from the person’s file or disregarded in any decision making.
Maritime NZ will only consider issuing a formal warning when it has been firm in its decision not to prosecute. In most circumstances, Maritime NZ will not reconsider its decision not to prosecute a person for their behaviour, unless there are special reasons (for example, new and additional evidence becoming available). Any reconsideration of its decision to prosecute will be done in accordance with the Solicitor-General’s Prosecution Guidelines.