Background: Prosecutions Policy
The New Zealand Walking Access Commission’s Prosecutions Policy has been established in accordance with the Cabinet direction in July 2012 that Government departments and Crown entities with prosecution functions establish and publish a prosecutions policy. The Commission has a prosecution function under the Walking Access Act 2008.
As a Crown Entity the Commission is required to comply with the Crown’s policies for the conduct of prosecutions by Government departments and Crown entities.
The Commission’s role in respect of the ongoing administration of walkways includes the power to:
- monitor controlling authorities in the exercise of their powers and performance of their functions;
- provide for enforcement under Part 4 of the Walking Access Act 2008.
The management of walkways is the responsibility of the controlling authority for each walkway. Currently controlling authorities are either the Department of Conservation (DOC), or one of four local authorities that have been appointed for this role
The functions of a controlling authority include:
- providing for the proper control and use of the walkway;
- generally promoting and maintaining the walkway for the pleasure, safety, and welfare of members of the public, as per S 37 (1) paras (c) and (d) of the Walking Access Act 2008.
The Commission has no power to direct controlling authorities in carrying out their role, but it can provide them with guidance as part of its monitoring function and request them to take responsibility for the enforcement functions provided for in Part 4 of the Act.Offences
The offences for which the Commission has a prosecution function are those in sections 54 and 56 of the Walking Access Act, 2008. They relate solely to the behaviour of the public on walkways and the protection of the right of the public to use walkways.
Section 53 of the Act provides that any person, including the Commission, an enforcement officer, or an honorary enforcement officer may commence proceedings under the Act by laying an information.
Prosecutions and controlling authorities
It is more appropriate that compliance, enforcement and prosecution activities should be carried out by the controlling authorities, rather than the Commission given the functions of a controlling authority of a walkway, and that controlling authorities are in practice directly involved in the day to day management of walkways. An exception would be if the Commission was the controlling authority for a walkway. The Commission is not currently a controlling authority and, as a matter of policy, does not take on this role. It can become a controlling authority by default.
The Commission’s prosecutions policy reflects the fact that it has the power to prosecute under the Act and the power to provide for enforcement under Part 4, and that as a contingency it may need to use these powers directly. However, the Commission relies generally on controlling authorities to carry out compliance, enforcement and prosecution functions.