Background to our Prosecutions Policy
Our role in prosecutions
In July 2012, Cabinet directed all government departments and Crown entities with prosecution powers to write and publish a prosecutions policy. The commission has prosecution powers under the Outdoor Access Act 2008, and as a Crown entity, it must follow the government's rules for how prosecutions are carried out.
Under the Act, the commission can:
- check that controlling authorities are using their powers properly and doing their job
- take enforcement action under Part 4 of the Outdoor Access Act 2008
Who manages walkways
Each walkway has a controlling authority responsible for managing it. That is either the Department of Conservation, a territitorial authority, or another public agency.
Controlling authorities are responsible for:
- keeping proper control over how the walkway is used
- looking after the walkway so the public can use it safely and enjoyably, as required by section 37(1)(c) and (d) of the Act
The commission cannot tell controlling authorities how to do their job, but it can offer guidance and ask them to take on enforcement responsibilities under Part 4 of the Act.
Offences
The commission can prosecute for offences under sections 54 and 56 of the Act. These cover how the public behaves on walkways and protect the public's right to use them.
Under section 53, anyone — including the commission, an enforcement officer, or an honorary enforcement officer — can start legal proceedings by filing a charging document under section 14 of the Criminal Procedure Act 2011.
Section 54 – things you can't do without permission (no need to prove intent)
You commit an offence by doing one of these things on a walkway, unless you're allowed to under the Act or have the landholder's permission. The prosecution doesn't need to prove you meant to do it or knew you were on a walkway:
- taking a plant (other than a weed classed as a pest)
- carrying a firearm, or firing one on, near, or across a walkway
- bringing a horse or dog onto the walkway, or having control of one there
- setting a net, trap, or snare, or laying poison or explosives (fishing nets and traps in nearby water are fine)
- lighting a fire outside a designated fireplace, or leaving a fire burning when you go
- using a vehicle on the walkway
- putting up a structure on or over it
It's up to you to show you had permission if you're accused. You also have a defence if you took all reasonable care, if you acted in an emergency to protect someone's safety, if you're the landholder, or if the landholder gave you permission (or the controlling authority has an agreement with the landholder allowing it).
Section 56 – things you can't do knowingly or recklessly
These offences need the prosecution to prove you knew what you were doing, meant to do it, or were reckless about it:
- going onto or staying on a walkway that's been officially closed
- interfering with or disturbing livestock or wildlife
- damaging, destroying, or altering a structure on or near the walkway
- blocking walking access, or refusing to clear an obstruction when an enforcement officer tells you to
- making a false report that an offence has happened
- annoying, disturbing, or endangering someone using the walkway, an enforcement officer, or a landholder
- threatening or intimidating a landholder or another walkway user
- ignoring a lawful request from an enforcement officer
- pretending to be an enforcement officer
- obstructing, threatening, or abusing an enforcement officer doing their job
Why controlling authorities usually handle this, not the commission
Controlling authorities manage walkways day-to-day, so it makes more sense for them to handle compliance, enforcement, and prosecutions — not the commission. The exception is if the commission itself is the controlling authority for a walkway.
The commission does have the legal power to prosecute and to take on enforcement under Part 4, and its prosecutions policy reflects that it may need to use these powers if it has to. But in practice, the commission relies on controlling authorities to handle compliance, enforcement, and prosecutions.