PAUAMAC5 INCORPORATED v DIRECTOR-GENERAL OF CONSERVATION [2018] NZCA 348 [4 September 2018]

PAUAMAC5 INCORPORATED v DIRECTOR-GENERAL OF CONSERVATION [2018] NZCA 348[4 September 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA355/2017[2018] NZCA 348BETWEEN PAUAMAC5 INCORPORATEDAppellantAND DIRECTOR-GENERAL OFCONSERVATIONFirst RespondentAND SHARK DIVE NEW ZEALAND LIMITEDSecond RespondentAND SHARK EXPERIENCE LIMITEDThird RespondentHearing: 27 March 2018Court: Cooper, Clifford and Williams JJCounsel: B A Scott and O T H Neas for AppellantJ M Prebble and D J Watson for First RespondentS J Grey for Second and Third RespondentsJudgment: 4 September 2018 at 4.00 pmJUDGMENT OF THE COURTA Shark cage diving is an offence under s 63A Wildlife Act 1953.B The Director-General of Conservation has no power under s 53 to authorisethis activity.C The appeal is therefore dismissed.D There is no award of costs.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] Shark Dive New Zealand Ltd and Shark Experience Ltd are commercial cagediving companies operating off the northern Tītī Islands, a cluster of tiny islandslocated around 8–12 kilometres east of Stewart Island. They use berley and bait todraw white pointer sharks, or great white sharks, as they are commonly known, to thevicinity of their vessels. Tourists who, it seems are prepared to pay good money forthe experience, then view the sharks up close but from behind the safe confines ofsubmerged cages suspended from the vessels.[2] The Director General of Conservation (the Director-General) issued authoritiesto Shark Dive and Shark Experience to undertake these activities. They were issuedpursuant to the Wildlife Act 1953 (the Act). The authorities are conditional oncompliance with a Code of Practice that is focussed on protecting the welfare of thesharks.[3] The appellants, PauaMAC5 Inc (PauaMAC5) represents commercial pāuaquota owners. They also operate in the Tītī Islands as the Islands are home to extensivebeds of fast-growing pāua. They fear their divers' lives are being put in greater dangerdue to this tourism activity occurring so close to where they work. They say theirsafety was ignored when the Director-General granted the permits. They soughtdeclarations in the High Court to the effect that the Director-General had no power toauthorise cage diving or, if there was such a power, that the safety of pāua divers mustbe a mandatory relevant consideration when deciding whether and, if so, on whatconditions, authorities should be granted. In this Court, PauaMAC5 did not pursuethe first of these declarations.[4] The Director-General takes the position that he has authority to authorise cagediving (or to refuse to do so) by virtue of s 53(1) of the Act and that without suchpermission, the activity is an offence under s 63A.1 The Director-General says furtherthe focus of that Act is wildlife, not humans, and it is not required to consider humansafety as a mandatory relevant consideration in its authorising decisions.[5] Shark Dive and Shark Experience meanwhile argue that shark cage diving isnot an offence under the Wildlife Act and no authority is required. They also arguethat the Director-General is not required to consider public safety.[6] In the High Court, Clark J reasoned that shark cage diving is not an offenceunder s 63A of the Act, and found therefore that the Director-General did not havejurisdiction to control it under s 53(1).2[7] The appeal raises three issues:(a) Is shark cage diving an offence under s 63A of the Act? The answer tothis question depends on whether luring the animals to submergedcages using attractants is to "hunt or kill" them within the definition ins 2(1).(b) If shark cage diving is an offence under s 63A, doesthe Director-General have the power to authorise the activity unders 53(1) of the Act? The answer to this question depends on whether theactivity is to "catch alive or kill" those sharks in terms of that provision.(c) If the Director-General does have this power, is he or she required toconsider the safety of pāua divers when making a decision unders 53(1), or alternatively is such consideration at least permissible?Background[8] PauaMAC5 represents local owners of pāua quota who harvest pāua in andaround Stewart Island generally and the northern Tītī Islands in particular. Pāua may1 The Director-General is Mr Lou Sanson.2 PauaMAC5 Inc v Director-General of Conservation [2017] NZHC 1182 at [66]–[68].only be harvested by free-diving, that is, without artificial breathing apparatus.3 Pāuais a high value commodity, making its harvest profitable despite this restriction onharvest method. An indicator of value may be seen in the fact that the 90 tonnes ofpāua quota available within the Stewart Island pāua Quota Management Area — thatis the quota, not the pāua itself — was trading in April 2016 at around $400,000 pertonne.[9] Great White Sharks frequent the northern Tītī Islands generally between thelate summer and early winter months of March to June. They are described by marinebiologists as apex predators. Males can grow to around 6 metres in length and femalescan exceed 6.4 metres. They are long lived — perhaps 50 or even 70 years — precisedata on this question is understandably sparse. The attraction of the Tītī Islands forthe sharks is the extensive seal population domiciled there during those months. Ofthe 178 great white sharks that have been photo-identified in and around Stewart,Ruapuke and the northern Tītī Islands between February 2007 and June 2015, mostwere located off the Tītī Islands. Abundance seems to vary from year to year althoughthe evidence is that "most" sharks return to the Islands. That is the sharks frequentingthe area during those months are not the same each year.[10] Shark Dive and Shark Experience are in turn attracted to the Tītī Islands by thepresence of the great white sharks. They conduct shark cage diving in waterssurrounding the Islands. Cage diving involves fee paying divers viewing these sharksin their natural habitat from the safety of a cage that is lowered into the water. Sharksare drawn to the area using tuna berley which is ground so fine that it provides scentbut no food. Once the sharks are in the vicinity, they are attracted to the cage itselfusing tuna meat baits.4[11] Shark cage diving began in the northern Tītī Islands area in 2008. At this time,there were no formal controls in place. The Department of Conservation's (DOC)initial position was that it did not have jurisdiction to impose them because the Act did3 Fisheries (Commercial Fishing) Regulations 2001, reg 76.4 These are large chunks of tuna suspended at the end of a rope. The object is the shark should notbe able to catch the bait, but the evidence is that on occasion the shark outwits the bait operator.not apply to this activity. But in 2013, following consultation with stakeholdersincluding cage diving operators and pāua divers, DOC released interim guidelines inorder to assist operators to identify and mitigate risks to the sharks from their activities.At first these were intended to be no more than best practice guidelines.[12] PauaMAC5 made its own submission on the interim guidelines. It expressedconcern that the use of attractants could modify shark behaviour by causing sharks tobuild an association between the presence of attractants in the water, the cage divingvessels, and pāua divers in the vicinity. This increased the risk of shark attacks forunprotected pāua divers. PauaMAC5 submitted that s 63A of the Act applied toprohibit this activity which (due to the extended definition in the Act to which we willturn below) could be said to amount to "hunt[ing] or kill[ing]" sharks. PauaMAC5submitted that authorities would therefore be needed under s 53(1) of the Act.[13] Following consideration of these submissions, DOC decided that it did haveauthority under the Act after all. The interim guidelines then became a code of practiceand DOC took the view that it could require compliance with the code by way ofcondition on authorities granted under s 53(1). The code was released inDecember 2013. It identified relevant risks to the sharks and how they could bemitigated. It also noted that it was: beyond DOC's current mandate to regulate activities that pose a hazard totourists, or persons in their place of work. These activities are covered underother legislation (e.g. Maritime Transport Act 1994; Health and Safety inEmployment (HSE) Act 1992).[14] In December 2014, the Director-General granted shark cage diving authoritiesto Shark Dive and Shark Experience to operate in the "surrounding waters of EdwardsIsland" located in the Tītī Island group. There were no conditions in the authorities toprovide greater protection for other users in the vicinity of cage diving operations.Shark Dive was authorised by its authority "[t]o attract Great White sharks to a vessel,platform or cage for the purposes of viewing or non-commercial fishing".Shark Experience was authorised "[t]o attract Great White sharks to a vessel, platformor cage for the purposes of viewing or filming them."Legislative Framework[15] "Wildlife" is relevantly defined in the Act as "[a]ny animal that is living in awild state ".5 Under the Act, all wildlife in New Zealand is "absolutely protected"unless such protection is reduced or removed by one or other of ss 4–7, 7A or 7C. 6 Itis unnecessary to discuss further the effect of these provisions except to note theyprovide that certain wildlife species listed in schedules to the Act may be hunted,taken, managed or farmed subject to certain conditions. Section 7BA(1) declares thatthe marine species listed in schedule 7A are "animals" for the purpose of the Act.White pointer sharks are listed in that schedule. Great white sharks are thus absolutelyprotected under the Act.[16] Section 63 of the Act makes it an offence (inter alia) to "hunt or kill" anyabsolutely protected wildlife unless a person can point to lawful authority to do so.[17] Section 63A makes it a specific offence to hunt or kill certain marine wildlife(including great white sharks) in the following terms:63A Taking of absolutely or partially protected marine wildlifeEvery person commits an offence against this Act and is liable onconviction to the penalty set out in section 67(fa) who without lawfulauthority (the proof of which shall be on the person charged)—(a) hunts or kills any absolutely or partially protected marinewildlife; or(b) buys or processes for sale or sells or otherwise disposes of orhas in his or her possession any absolutely or partiallyprotected marine wildlife or any part thereof; or(c) robs, disturbs, or destroys, or has in his or her possession thenest of any absolutely or partially protected marine wildlife.[18] Section 67(fa) is the relevant penalty provision. It provides for a maximumfine of $250,000 and/or a maximum term of imprisonment of two years for an offenceunder s 63A.5 Wildlife Act 1953, s 2. The extended definition is as follows:wildlife means any animal that is living in a wild state; and includes any such animal or egg oroffspring of any such animal held or hatched or born in captivity, whether pursuant to an authoritygranted under this Act or otherwise; but does not include any animals of any species specified inSchedule 6 (being animals that are wild animals subject to the Wild Animals Control Act 1977).6 Section 3.[19] The key phrase for our purposes is "[h]unt or kill". It is defined in s 2:hunt or kill, in relation to any wildlife, includes the hunting, killing, taking,trapping, or capturing of any wildlife by any means; and also includespursuing, disturbing, or molesting any wildlife, taking or using a firearm, dog,or like method to hunt or to kill wildlife, whether this results in killing orcapturing or not; and also includes every attempt to hunt or kill wildlife andevery act of assistance of any other person to hunt or kill wildlife[20] The definition is further extended by the definition of "take" in s 2 as follows:take, and all references thereto, includes taking, catching, or pursuing by anymeans or device, and also includes the attempt to take[21] The Director-General is then able to authorise any "specified person" tocontravene some of the Act's prohibitions by providing them with lawful authority todo so.7 Such authorisations will variously enable the person to "catch alive or kill",or "otherwise obtain alive", any partially or absolutely protected species; and/or to"hunt or kill or cause to be hunted or killed" any such species; and/or to "take orotherwise obtain" the eggs of any such species.[22] Section 53 is the general authorisation provision. The Director-Generalpurported to authorise shark cage diving pursuant to subsection (1) of that section:53 Director-General may authorise taking or killing of wildlife forcertain purposes(1) The Director-General may from time to time in writing authorise anyspecified person to catch alive or kill for any purpose approved bythe Director-General any absolutely protected or partially protectedwildlife or any game or any other species of wildlife the hunting orkilling of which is not for the time being permitted.(2) The Director-General may from time to time in writing authorise anyspecified person—(a) to catch alive or otherwise obtain alive any absolutely protectedor partially protected wildlife or any game or any other speciesof wildlife the taking of which is not for the time being permitted;or(b) to take or otherwise obtain the eggs of any such wildlife or game,for the purpose of distributing or exchanging the same in anyother country or in some other party of New Zealand, for anyscientific or other purpose approved by the Director-General, or7 Wildlife Act, ss 53 and 54.for the purpose of rearing any such wildlife or game, or for thepurpose of hatching any such eggs and of rearing any progenyarising from that hatching,—and may in any such authority authorise the holder to have any suchwildlife or game or eggs or progeny in his or her or its possession forany of the purposes specified in this subsection, and may in any suchauthority authorise the holder to liberate any such wildlife or game orprogeny in such area and during such period as may be specified inthe authority.(Emphasis added)[23] Section 54 provides similar powers but is aimed specifically at situations wherewildlife is damaging land, stock, crops, chattels or other wildlife:54 Director-General may authorise hunting or killing of wildlifecausing damage(1) The Director-General, on being satisfied that injury or damage to anyperson or to any land or to any stock or crops or to any chattel or toother wildlife has arisen or is likely to arise through the presence on anyland of any animals (whether absolutely protected or not), and whetheror not the land is a wildlife refuge or a closed game area, may authorisein writing the occupier of the land, or any officer or servant ofthe Department, or any other person, to hunt or kill, or cause to behunted or killed, or to catch alive for any specified purpose any suchanimals, or to take or destroy the eggs of any such animals, subject tosuch conditions and during such period as may be specified in theauthority.(Emphasis added.)[24] In addition, s 59 provides a power of entry onto private land for a s 54 purposeand thereby to "catch alive or hunt or kill" wildlife:59 Entry on land for purposes of Act(1) If in the opinion of the Minister any wildlife is causing or is likely tocause injury or damage to any land, or to any person, or to any stock orcrops, or to any chattel, or to any other wildlife, or to any trees, shrubs,plants, or grasses, the existence of which may tend to protect the habitatof any absolutely protected wildlife or of any game, or which may tendto mitigate soil erosion or to promote soil conservation or the control offloods, he may authorise in writing the Director-General, or any otherofficer or servant of the Department, to enter at any time and from timeto time on any land under the control of any local authority or publicbody or any Maori land or private land, with such assistants as he thinksfit, for all or any of the following purposes:(b) To catch alive or to hunt or kill any such wildlife.(Emphasis added.)[25] It will be seen that the relevant offence is to "hunt or kill" protected marinewildlife but the authorisation provisions (both marine and terrestrial) utilise differentwords or word combinations to describe the kind of interference in the wildlife whichmay be the subject of an authority. In fact, in s 53(1) "hunt or kill" is not used as theoperative phrase at all, instead the word combination is "catch alive or kill" an animal,"the hunting or killing of which is not permitted". There is a certain untidiness in thisdrafting.[26] Finally, by way of background, it is necessary to refer to s 68B which providesdefences to offences in respect of marine wildlife. It relevantly provides:68B Defences to offences in respect of marine wildlife(3) Where any person is charged with an offence against section 63A, it isa defence to the charge if the defendant proves that the act or omissionconstituting the offence took place in circumstances of stress oremergency and was necessary for the preservation, protection, ormaintenance of human life.(4) Where any person is charged with the killing or injuring or being inpossession of any marine wildlife contrary to the provisions of this Act,or any regulations made under it, and the provisions of subsections (1),(2), and (3) do not apply in the circumstances of the case,—(a) it is a defence to the charge if the defendant proves that the deathor injury to such wildlife was accidental or incidental, and thatthe requirements of section 63B were complied with:(b) it is a defence to the charge if the defendant proves that the deathor injury to, or possession of, such wildlife took place as part ofa fishing operation and the requirements of section 63B werecomplied with.[27] Section 63B is specifically referenced in s 68B(4)(a). It relates to fishingoperations. It accepts that fishers will have unintended by-catch, and requires thatsuch a catch be logged in the vessel's log or reported to a ranger and/or a fisheriesofficer. The effect of ss 68B and 63B in combination is that if these steps are taken,the fishers will have a defence to any change under s 63A, provided what occurredwas accidental, incidental or part of a fishing operation.[28] By implication, it follows that the offence in s 63A is one of strict liability.That is, it is not necessary to prove intention to hunt or kill a protected marine species,but it will be a defence to such a charge if the defendant can prove that the injury ordeath to the animal was accidental, incidental or occurred as part of a fishingoperation.8High Court decision[29] The case argued in the High Court was significantly different to the case thatwas originally pleaded. PauaMAC5's original case centred on whether public safetyis a permissible, if not a mandatory relevant consideration under the Act for issuingauthorities and drafting conditions and the Code of Practice. When the proceedingsfirst came before Collins J in July 2016, he adjourned the matter and asked the partiesto address the broader issue of whether s 53(1) of the Act permits the Director-Generalto authorise shark cage diving activities.9[30] Amended proceedings were then heard by Clark J. The Judge held thatthe Director-General is not empowered by the Act to authorise shark cage divingbecause it does not meet the description of "catch alive or kill" in s 53(1).10 She notedthat s 53(1) refers to "catch alive or kill" where s 63A refers to "hunt or kill".11 Sheconsidered the overall question was therefore whether the s 2 definition of "hunt orkill" is imported into the word "kill" in s 53(1).8 Section 68AB refers specifically to mens rea and strict liability offences but subsection (6) of thatsection provides that ss 63A and 63B "continue to apply as if this section had not been enacted".9 PauaMAC5 Inc v Director-General of Conservation, above n 2, at [6].10 At [66]–[67].11 At [68].[31] Clark J reasoned that in the s 2 definition, the listed activities short of killingare incidents of "hunt[ing] or kill[ing]" and so are coloured by those wider purposes.12They are not to be viewed in isolation and are not individually intended to amount to"hunt[ing] or kill[ing]".13 The Director-General relied on Solid Energy New ZealandLtd v Minister of Energy where Mallon J had held that intention was irrelevant to theactivities short of hunting and killing in s 2.14 Clark J considered this part of thejudgment had been taken out of context and noted that earlier in the judgment,Mallon J had considered that if a person were to startle wildlife by walking throughbush, this would not be disturbing for the purposes of "hunting or killing" as the person"took no action directed at the wildlife".15 Clark J concluded that:[48] I do not read Mallon J as suggesting other than that the listed activitiesin s 2 are incidence (sic) of hunting or killing. There is a statutory connectionbetween "disturb", for example, and the proscribed activity namely "huntingor killing".[32] Clark J further considered that the separate references to "hunt or kill" and"catch alive" in ss 54 and 59 showed they were intended to have different meanings.16[33] Clark J concluded that there were no convincing arguments that displaced theordinary meaning of "catch alive or kill" and there was no reason to import thedefinition of "hunt or kill" into s 53(1).17 She recognised that this led to a number ofpractical issues,18 but held that the Act is not the correct framework under which tocontrol this activity.19 In her view there was no tenable interpretation of the Act thatcould resolve this particular issue.20 The following declaration was made:21Section 53(1) of the Wildlife Act 1953 does not confer power on theDirector-General of Conservation to authorise commercial shark cage divingoperators, or any person, to attract sharks to a vessel, platform or cage for thepurposes of viewing or filming the sharks.12 At [42].13 At [42].14 Solid Energy New Zealand Ltd v Minister of Energy [2009] NZRMA 145 (HC) at [86].15 At [47], citing Solid Energy New Zealand Ltd v Minister of Energy, above n 14, at [83].16 At [50].17 At [53].18 At [56].19 At [60].20 At [60].21 At [69].[34] The Judge made no formal finding on the question of whether shark cagediving is nonetheless an offence under s 63A. It must however be said that theirresistible implication of her conclusion that disturbance can only meet the definitionof "hunt or kill" if it is done for the actual purpose of hunting or killing in the ordinarysense, is that shark cage diving is not an offence.Submissions[35] PauaMAC5 argues as follows:(a) Deploying attractants and baits to draw sharks to a diving cage is"hunt[ing] or kill[ing]" within the terms of s 63A. That is because theextended statutory definition includes "pursu[ing], disturb[ing], ormolest[ing]" the animals.(b) The phrase "catch alive or kill" in s 53(1) imports the extended meaningof "hunt or kill". It is sensible to accept that catching alive or killingfirst requires the perpetrator to "pursue, disturb or molest" the animal.Thus, it makes better sense to read "hunt or kill" disjunctively so that"kill" is capable of bearing the full extended meaning in s 2. The effectof this is that kill does not necessarily mean "kill" in its ordinary sense.In addition, a purposive approach would ensure thatthe Director-General is empowered to authorise under s 53(1) anyactivity that would otherwise be an offence under s 63A and shark cagediving is plainly an offence.(c) Public safety is a mandatory relevant consideration in any authorisationdecision under s 53(1) because:(i) public safety is a matter of inherent importance;(ii) authorisations under s 53(1) can be granted for "any purpose";(iii) the scheme of the Act is to control all human interaction withwildlife in New Zealand; and(iv) public safety is a logical or rational consideration in thecircumstances.[36] The Director-General argues as follows:(a) Shark cage diving is "pursu[ing], disturb[ing] or molest[ing]" sharksand is therefore "hunt[ing] or kill[ing]".(b) The words "catch alive or kill" import the entire definition of "hunt orkill". This is the interpretation consistent with the Act's purpose ofproviding blanket protection to wildlife subject to a general power tocontrol harmful interactions. Further, both ss 63 and 63A refer to anabsence of "lawful authority". The only provision capable of supplyingsuch authority in respect of marine wildlife is s 53(1). The power toauthorise must therefore be available in this case.(c) Public safety is not a mandatory relevant consideration under s 53because the focus of the Act is the welfare of the wildlife.Anthropocentric concerns are expressly limited to the circumstancescovered by ss 5(2), 54 and 59. That said, it was accepted thatpublic safety may be a permissible relevant consideration where thefacts justify it and its effect is not to undermine the purpose of the Act.[37] Shark Dive and Shark Experience jointly argue:(a) Their activity is not hunting or killing in terms of s 63A because:(i) There is:(1) no actual catch, hunt or kill;(2) no activity undertaken or method used by which it is intendedto hunt or kill; and(3) no attempt to hunt or kill.(ii) A narrower intention-based approach to s 63A is consistent with:(1) the Act's purpose of wildlife protection;(2) the freedom of movement and expression protected in theNew Zealand Bill of Rights Act 1990; and(3) avoiding over-criminalisation by ensuring that the proscribedwrong is proportionate to the significant penalties unders 67(fa).(iii) Even if "pursue, disturb or molest" without any hunting purpose isall that is required, shark cage diving simply attracts sharks to acage. It does not "disturb, pursue or molest" them.(b) As there is no offence, no authority is required. But if that is incorrect,then it is necessary to read "catch alive or kill" in s 53(1) as enabling thegrant of such authority. This is achieved by giving effect to Parliament'sintention that all elements of the definition of "hunt or kill" are importedinto that prior phrase.(c) Public safety is not a mandatory relevant consideration under s 53(1)because:(i) the purpose of the Act is protection of wildlife;(ii) DOC has no expertise in public safety;(iii) public safety is protected by other legislation;(iv) section 53 can be distinguished from Part 1 of the Act in relationto wildlife reserves. This Part imports Part 3B of the ConservationAct 1987 specifying detailed processes and criteria includingextensive mandatory relevant considerations; and(v) there is no evidence to support the suggestion that the activityincreases risks to public safety in any event.[38] Further argument was independently advanced by PauaMAC5. PauaMAC5noted that all three parties now agreed that Clark J was in error in concluding noauthorisation could have been given for shark cage diving. This meant the case nolonger had a contradictor on that point. PauaMAC5 undertook to provide furthersubmissions as contradictor, a course which this Court approved by direction on22 March 2018. PauaMAC5 therefore argued further as follows:(a) "[H]unt or kill" and "catch alive or kill" are intended to carry differentmeanings in the Act — the former is defined while the latter is not; andthe phrase "catch alive" is used independently of "or kill" in a numberof provisions. It cannot therefore be the case that the two phrases wereintended to be co-extensive.(b) Both phrases occur separately in s 53(1).(c) "[H]unt or kill" is specially defined as a single phrase rather thandisjunctively as separate words each carrying the same extendedmeaning.(d) Such narrow reading of "catch alive or kill" is consistent with the Act'spurpose of wildlife protection.Is shark cage diving an offence?[39] We consider that Clark J erred when she took the view that "pursu[ing],disturb[ing] or molest[ing]" protected wildlife will only be "hunt[ing] or kill[ing]" ifthey occur in pursuit of the purpose of "hunt[ing] or kill[ing]" (in its narrower ordinarysense).22 Such conclusion fails to take account of the fact that the definition expresslyincludes attempts. For example, disturbing a protected species for the purpose ofhunting or killing it would be an attempt to hunt or kill, which is already provided for22 At [42].in the definition. Disturb must logically mean something else. We turn now to makeour own assessment of what is, and what is not, included in the definition.[40] "[H]unt or kill" must be construed in its statutory context and in light of theunderlying statutory purpose. The phrase is given an "extended, non-exclusivemeaning" in s 2.23 It must therefore be intended to include the ordinary meaning ofhunt or kill — to pursue an animal for the purpose of catching or killing it; even thoughthe definition does not quite use those terms. But it is intended also to carry a widermeaning as both Mallon J in Solid Energy New Zealand Ltd and Clark J in this caseaffirm.24 For example, the definition provides that "hunt[ing] or kill[ing]" expresslyincludes "tak[ing] or trap[ping]" which, although analogous to hunting, would notgenerally attract that description. In this way the definition is extended to cover thetaking of eggs and the trapping of kiwi for conservation purposes. Nor would "tak[ing]or trap[ping]" amount to killing if that was not the result, intended or otherwise. Themeaning is extended in that sense too.[41] Further, "hunt[ing] or kill[ing]" is plainly intended to apply to protectedmarine species as a result of the enactment of s 63A. It must therefore, by necessaryimplication, include fishing for, diving for or otherwise gathering such species,whether or not the wildlife is killed in the process. The meaning is extended in thatsense also. Further all attempts at hunting or killing are expressly covered as isassisting someone else to hunt or kill.[42] Finally, as we have noted, there is no necessity to prove any intention to huntor kill. Rather, as we have mentioned above at [28], a lack of intention is a defence incertain circumstances. This can only mean that "pursu[ing], disturb[ing] ormolest[ing]" any protected marine species will each be sufficient to constitute anoffence irrespective of whether the individual intended to hunt or kill the animal in theordinary sense of pursuing for the purpose of catching or killing. This aspect of thedefinition is also an extended meaning. Comprehensive coverage of a wide range of23 Solid Energy New Zealand Ltd v Minister of Energy, above n 14, at [78]24 Solid Energy New Zealand Ltd v Minister of Energy, above n 14 at [78]–[85]; and PauaMAC5 vDirector-General of Conservation, above n 2, at [44]–[48].actions that bring a risk of harm to wildlife reflects the absolute protection purpose ofthe Act.[43] But there are limits. Just what constitutes pursuit or disturbance will be aquestion of fact to be determined by reference to the Act's primary purpose which isto facilitate the protection (in this case) of protected marine species against harmful orpotentially harmful interaction with humans. That will mean that some forms ofpursuit or disturbance will be so unlikely to result in harm to the animal, that it oughtnot to be construed as amounting to pursuing or disturbing for the purpose of the Act.For example, a protected fish that is required to deviate momentarily from its path toavoid a swimmer is probably not disturbed for the purpose of the definition, but aprotected bottom-dwelling species that is accidentally stood on probably is; and theperpetrator would need to have recourse to the defences in s 68B in the unlikely eventhe or she is prosecuted for it. In this minor respect, we differ from Mallon J who tookthe view that action intentionally directed at the animal is required.25 That approachimports an element of intention into the offence which is inconsistent with theexistence of an explicit accidental death or injury defence in s 68B.[44] Similarly, following a protected marine species as it swims naturally wouldprobably not constitute "pursuit" or "disturb[ance]" in terms of the definition, butactive pursuit, causing the animal to feel it necessary to evade or outrun the pursuermay well, even if the interference is not to catch or kill the animal but merely tophotograph it. Where the line is to be drawn will come down to the risk the act presentsfor the animal.[45] In light of the foregoing, we are satisfied that shark cage diving is "pursu[ing]or disturb[ing]" great white sharks and therefore is "hunt[ing] or kill[ing]" within themeaning of s 63A. Shark Dive and Shark Experience use berley and bait as attractantsto bring the animals to the cage. This is pursuing them in the same way that the useof bait or a fly to draw a fish to the angler's hook is pursuing the fish. Further,attractants are designed to cause the animal to deviate significantly from its naturalswimming pattern. That amounts to a disturbance of the animal.25 Solid Energy New Zealand Ltd v Minister of Energy, above n 14, at [86].[46] We are fortified in these conclusions by the evidence with respect to risk to thesharks. According to the evidence of Mr Clinton Duffy, a Technical Advisor inthe Marine Ecosystems Team at DOC, cage diving operations may result in sharks:(a) biting or colliding with cages and support vessels;(b) ingesting ropes, decoys or other equipment such as bags used to deployberley;(c) becoming entangled in lines or entrapped in the cages themselves;(d) engaging in aggressive interactions with other sharks also drawn to thevicinity.[47] We accept that Shark Dive and Shark Experience deny that any such risks exist,but the existence of potential for such harm is sufficient to satisfy the extendeddefinition. Its relatively low threshold is consistent with the Act's absolute protectionpurpose.[48] We conclude that shark cage diving is an offence under s 63A of the Act.Can shark cage diving be authorised?[49] We do not however consider that shark cage diving is amenable toauthorisation under s 53(1).[50] We accept that there is some sense in interpreting the Act so thatthe Director-General may authorise any action that would otherwise be an offence.There is a tidy symmetry in that. We accept also that the Act is 65 years old and themarine species offence provision was enacted in 1996, 43 years after the generalauthorisation provision that is argued to apply to it. As shark cage divingdemonstrates, the way humans choose to interact with protected marine species haschanged since 1953, and perhaps even since 1996. A purposive approach to statutoryinterpretation must take account of these factors where relevant.26 And in oldoften-amended legislation like the Wildlife Act, complementary provisions such asss 63A and 53(1) cannot be expected to clip together with the neat precision of a newAct. But the words of s 53(1) must still be capable of bearing the meaning argued for,or it must be reasonably necessary to adopt that meaning in order to give effect to theAct's purpose in a modern context. In our view, neither proposition bears closescrutiny in the case of s 53(1).[51] The offence of "hunt[ing] or kill[ing]" absolutely or partially protected marinewildlife is one of strict liability, incorporating a number of actions that would not beeither "hunt[ing] or kill[ing]" in common usage. But "catch alive or kill", which isthe key phrase in s 53(1), must have been intended to mean something different —logically, a subset of "hunt or kill". Our reasons are as follows.[52] First, authorisation envisages something inherently intentional. That is, theauthorisation must by definition have the purpose of "catch[ing] alive or kill[ing]". Itcannot be for the purpose of facilitating an accidental or inadvertent action. Lesserinterferences such as mere disturbance or unsuccessful pursuit would only beauthorised if they occurred in pursuit of the overall purpose of "catch[ing] alive orkill[ing]". Unlike s 63A, purpose is critical under s 53(1). So, the sections are notmirror images of each other. And the authorisation must be consistent with the widerpurpose of the Act. Although the Director-General can authorise "catch[ing] alive orkill[ing]" "for any purpose", that does not mean he or she could authorise the killingof threatened species for sport or private commercial gain. "Any purpose" must betaken to mean any purpose consistent with wildlife protection or in this particularcontext the protection of great white sharks in the New Zealand marine environment.[53] Without in any way attempting to be definitive or exhaustive, the focus ofauthorisation is likely to be primarily scientific research, although it might includecapture for the purpose of removal to a safer environment (for the shark), the cullingof diseased animals that might threaten the larger population or to address over26 Ross Carter Burrows and Carter: Statute Law in New Zealand (5th ed, LexisNexis, Wellington,2015) at 403–406.population.27 That said, the term "catch alive" can be given an appropriately elasticinterpretation consistent with the Act's purpose. For example, it would include taggingor attaching tracking devices by means other than actually taking custody orpossession of the animal.[54] Second, the fact that "kill" is used in both ss 63A and 53(1) does not mean thatthe whole extended meaning of "hunt or kill" was intended to be imported into "catchalive or kill". In fact, the reverse inference is the more obvious one to draw from theintentional use of a different and plainly narrower phrase. "Catch alive or kill" is, aswe have said, the narrower common usage meaning of hunt — to pursue an animal forthe purpose of catching it alive or killing it.[55] Third, and relatedly, "hunt or kill" is used in the Act as a term of art — that isa specific phrase with its own special and singular meaning. This is confirmed inKirkby v Ngamoki where Barker J held that "hunt or kill" is one rather than twoseparate offences. 28[56] It is also confirmed in the way "hunt or kill" is presented in s 2. All three wordsin the phrase are bolded so that it appears as "hunt or kill". This suggests that the"or" is intended to be part of the definition and not merely a means of separating thewords being defined. By contrast the "or" is not bolded in the definition of"concession or concession document". In that definition both terms are intended tohave precisely the same meaning, that is they are intended to be interchangeable.The drafter took a similar approach with "wildlife sanctuary or sanctuary". Putsimply, the extended meaning of "hunt or kill" was intended to be the meaning of thephrase, not of its individual components.[57] It follows that when "kill" appears in the statute without "hunt", it is notintended to carry with it the whole extended meaning of "hunt or kill". Rather, in thatparticular context, and subject to statutory purpose, "kill" is intended to carry itsordinary meaning and so, by extension, is "catch alive".27 This was the purpose with respect to the giant snails in Solid Energy New Zealand Ltd v Ministerof Energy, above n 14. Whether it would include removal for purely anthropocentric purposes isa matter we address under the next heading below.28 Kirkby v Ngamoki HC Rotorua M172/84, 11 July 1985 at 4.[58] Fourth, this interpretation is consistent with the relevant statutory purposewhich is the protection of absolutely protected wildlife and the careful regulation ofhuman interaction with such species. On the evidence, shark cage diving is primarilya commercial adventure tourism activity. Its purpose is anthropocentric. Anyscientific or other insights about the sharks that may be gained from the activity areancillary to the primary human purpose of private or personal entertainment. We havealready discussed the risks to the wellbeing of the shark which the Director-Generalconsidered could be presented by shark cage diving. The authorisations were designedto mitigate those risks. To that limited extent they are protective. But the risk to sharkscan be completely removed by not allowing its authorisation. In other words, allowingthe interaction provides no protective benefit to the shark, so there is no justificationfor the risk. It is therefore not necessary to read s 53(1) as if it covers shark cagediving to ensure consistency with the Act's purpose. To the contrary, the Act's purposecan be better achieved if s 53(1) is read to exclude shark cage diving.[59] Finally, we acknowledge that the offence under s 63A is to hunt or kill "withoutlawful authority". Plainly the section contemplates that the Director-General will beempowered to provide such authority under s 53(1). But it does not follow thatthe drafter's intention was that the Director-General should be able to authorise any"hunt[ing] or kill[ing]" of any kind and for any purpose. As we have said, theconstraints are at two levels. First, the activity to be authorised must fit the narrowerdescriptor "catch alive or kill". And second, only those instances of "catch[ing] aliveor kill[ing]" that promote the Act's wider purpose may be authorised.[60] We conclude that s 53(1) may not be used to authorise shark cage diving.Is public safety relevant?[61] In the event that we are wrong in our conclusion with respect to s 53(1), wenow go on to consider whether the safety of the public, and pāua divers in particular,is a mandatory or permissible relevant consideration in the grant of authorisation underthat provision.[62] We do not consider there is a proper basis to find that public safety is amandatory relevant consideration in every authorisation. There will no doubt becircumstances where the authorisation relates to areas where there are no other humansin the vicinity or where the activity is not inherently dangerous — for example, takingshellfish at low tide or taking protected eggs. There can be no blanket rule.[63] But the Director-General's concession that public safety is a permissiblerelevant consideration was properly made. "Catch[ing] alive or kill[ing]" can be adangerous activity involving weapons or traps capable of injuring (or worse) innocent(human) third parties who may be in the vicinity. The power to impose conditions iscontained in s 53(5). It relevantly provides as follows:53 Director-General may authorise taking or killing of wildlife forcertain purposes(5) Any authority granted under any of the foregoing provisions of thissection may contain such conditions as the Director-General mayimpose. Without limiting the general power of the Director-Generalto impose any conditions, the Director-General may in any suchauthority impose all or any of the following conditions:(a) prescribing the means by which any such wildlife or game oreggs may be caught or killed or taken:(b) prescribing the areas in which any such wildlife or game oreggs may be caught or killed or taken:(d) prescribing the duration of the authority:[64] The provision is broadly worded and the power is described in s 53(5) as ageneral one. The list of the matters that may (without limitation) be the subject ofconditions includes the means, area and duration of the activity. Public safety cancomfortably be a factor in any assessment of the method, place and time of the"catch[ing] alive or kill[ing]". Indeed, we venture, it would in some circumstances bequite irrational for the Director-General to ignore public safety when consideringwhether, and if so how, to grant an authority under s 53.[65] In this case there is a genuine debate about whether the use of berley and baitin relatively close proximity to pāua divers will present a heightened risk to theirsafety. PauaMAC5 submits the activity is causing shark behaviour to change so thatthey have, or will come to, associate divers with prey. The shark cage operators denythis. The final assessment will be a matter for the Director-General, but the issue isplainly not one that can be rationally ignored given the broad terms of s 53(5).[66] We conclude that if the Director-General does have the power to authoriseshark cage diving, he or she must give consideration to the possible effects of sharkcage diving on local pāua divers in the context of this particular case. But, as we havesaid, the final assessment is for the Director-General to make.Conclusion[67] The effect of this judgment is that shark cage diving is an offence that cannotbe authorised by the Director-General. We are aware that this places Shark Dive andShark Experience in a very difficult position through no fault of their own. However,the Act has never been "fit for purpose" in respect of this activity. In the meantime,those two companies have, through the expenditure of capital and effort since 2008,built up profitable ventures which they thought were perfectly lawful. It will be forParliament to consider whether these activities should be permitted by amendinglegislation that provides for authorisation with the clarity of modern drafting norms.Result[68] Shark cage diving is an offence under s 63A Wildlife Act 1953.[69] The Director-General of Conservation has no power under s 53 to authorisethis activity.[70] Therefore although we differ from Clark J on the question of whether sharkcage diving is an offence, we nonetheless agree, albeit for different reasons, with herconclusion and consequent declaration with respect to the Director-General'sauthorisation power under s 53(1). The appeal must therefore be dismissed.[71] In the circumstances, it is appropriate that we make no award of costs.Solicitors:Chapman Tripp, Wellington for AppellantCrown Law Office, Wellington for First Respondent