OIA request regarding release of legal advice about Operation Achilles

Your complaint to the Ombudsman has been referred to MPI along with two related complaints that
also seek release of legal advice associated with Operation Achilles.

The legal advice sought in all three requests is covered by professional legal privilege, and release of
the advice would, in MPIs view, undermine the confidential relationship between MPI officers and
their legal advisers. This confidential relationship, and the confidentiality of information that flows in
that relationship, are fundamental to the administration of the law and to MPIs regulatory role.

MPI does not accept that legal privilege in the advice has been waived by statements made in the
media, or that there is an overriding public interest in releasing the advice.

We acknowledge there is a public interest in MPIs actions and the reasons for its decision not to
prosecute following Operation Achilles. To satisfy that public interest, MPI has agreed to provide the
following statement.

Correction of statements about the content of legal advice

On 17 and 18 May 2016, MPIs then Deputy Director-General of Regulation and Assurance, Scott
Gallacher, and Director of Fisheries Management, Dave Turner, made public comments about legal
advice that had been received by MPI. They stated that legal advice had recommended against
prosecution on the basis that camera footage would be inadmissible in a prosecution. Both men were
relying in good faith on information that had been provided to them, but that information was wrong.
Neither Mr Gallacher, nor Mr Turner had seen the legal advice at the time.

The legal advice did not contain a recommendation against prosecution on the basis that camera
footage would be inadmissible in a prosecution.

On 16 September 2016, MPI provided Newshub journalist Michael Morrah with this statement:

Mr Gallacher and Mr Turner were acting on information they were given at the time about
what legal advice MPI had received. That information was wrong. In reaching his findings, Mr
Heron had all of the formal legal advice available to him, all of the relevant documentation
and he interviewed a number of individuals to reach the conclusions he reached.

Reasons for decision not to prosecute in Operation Achilles

In May 2016, there was public criticism of MPIs decisions not to prosecute in Operation Achilles and
two other compliance operations. In order to satisfy the public interest in MPIs role as the regulator
of fisheries in New Zealand and MPIs role in holding people to account when illegal activity takes
place, the Director-General of MPI, Martyn Dunne, tasked Michael Heron QC, a former Solicitor-
General, with reviewing the circumstances around Operation Achilles and the two other compliance
operations, including the decisions not to prosecute.

Mr Heron was provided with background documentation, including legal advice. He also interviewed
current and former staff about the operations and the prosecution decisions.

Mr Herons report was published in full by MPI on 16 September 2016. In order to provide the public
with transparency about MPIs actions and the background to Mr Herons review, a large quantity of
official information was also released with the report. The report and the background material can
be found on MPIs website at this link:
 http://www.mpi.govt.nz/protection-and-response/environment-and-natural-
resources/sustainable-fisheries/independent-review-of-prosecution-decisions/

In the case of Operation Achilles, Mr Herons report provides (at section 5.3) a detailed and extensive
description of the decision-making process and the various factors that fed into the final decision not
to prosecute. In his summary of the Operation Achilles decision (at section 2.3), Mr Heron stated that:

The decision not to take prosecution action and in particular the process leading to it was
flawed. The decision however was understandable and available in the circumstances. It was
a complex matter, approached professionally and in good faith by all involved.

The prosecution decision was affected by considerations which were not relevant under the
[Prosecution] Guidelines. In particular, potential embarrassment to MPI or officials was an
irrelevant consideration.

Earlier conduct of MFish and MPI created hurdles to the prosecution which should not have
been present. That conduct was inappropriate or at least unhelpful.

The decision process was confused, not well documented and not well communicated.

In respect of Operation Overdue, Mr Heron found (at section 2.1.2) that the decision not to
prosecute was:

understandable in the circumstances. The response taken appeared to be adequate and

produced a change of behaviour by the fishing company concerned.

In respect of Operation Hippocamp, Mr Heron found (at section 2.2.2 to 2.2.3) that:

There was no referral to prosecution or recommendation to prosecute arising from

Operation Hippocamp. This was reasonable and understandable given the limitations of the
findings.

Accordingly, there was no decision not to prosecute as the question did not arise.

Mr Heron also noted (at section 2.4.1) that:

Any criticisms made in this report need to be seen in context. MPI prosecutes hundreds of
cases each year, including many fisheries cases. Its processes are generally robust and its
people experienced and professional.

In reaching his findings, Mr Heron had the legal advice available to him and interviewed legal advisers.
However, it should be noted that the legal advice was but one input to the prosecution decision; the
legal advice alone does not give a full explanation of the decision, since the Prosecution Guidelines
require a range of factors to be taken into account. Having reviewed all of the relevant documentation
and interviewed people involved in the decision, Mr Herons report provides a full and accurate
account of the reasons for the prosecution decision.