Fisheries Bill-63-1
FISHERIES BILL
EXPLANATORY NOTE
THIS Bill reforms and restates the law relating to fisheries and fisheries resources within New Zealand and New Zealand fisheries waters, and recognises New Zealand's international obligations relating to fishing. Enactments relating to aquaculture (marine farming) are preserved by the Bill and it is expected that legislation on the subject will be introduced in 1995. The Bill also facilitates structural reform of fisheries management.
Background The princifal enactments governing or affecting fishing in waters subject to New Zealand s jurisdiction are the following: (a) The Fisheries Act 1983: (b) The Territorial Sea and Exclusive Economic Zone Act 1977: (c) The Maori Fisheries Act 1989: (d) The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992: (e) The Fishing Industry Board Act 1963: (f) The Shipping and Seamen Act 1952 and the regulations made under that Act. Mention should also be made of some other sources of law that have a less direct bearing on commercial fishing. First, the Resource Management Act 1991 contains provisions relating to coastal management. Secondly, the Marine Reserves Act 1971 and the Marine Mammals Protection Act 1978 impose restrictions in specific areas. Thirdly, New Zealand has some international obligations relating to fisheries, including the Biodiversity Convention, the Wellington Driftnet Convention, the Convention for Conservation of Southern Bluefin Tuna, the Convention for Conservation of a Living Resource, Agreements relating to the Forum Fisheries Agency, the Treaty on Fisheries Between the Governments of certain Pacific Island States and the Government of the United States of America. The subsidiary legislation in this area is extensive. There are general regulations, regulations relating to particular areas, and notices given by or on behalf of the Minister or the Director-General. The following table sets out the principal sets of regulations and notices.
No. 63-1
Price Code: L 11
General Regulations Regional Regulations Gazette Notices
The Fisheries (Commercial Commercial Statutory Regulations Series Fishing) Regulations 1986 The Auckland and Kermadec The Fisheries (Conversion The Fisheries (Amateur Fish- Areas (Commercial Fishing) Factors) Notice 1993 ing) Regulations 1986 Regulations 1986 The Fisheries (Catch Against The Central Area The Fisheries (Quota Quota) Regulations 1993 (Commercial Fishing) Management Areas, Catch Regulations 1986 Histories, and Total Allowable Catches) Notice 1986 The Fisheries (Licensed Fish The Challenger Area The Fisheries (Jack Mackerel Receivers) Regulations 1986 (Commercial Fishing) Quota Management Areas, Regulations 1986 Catch Histories, and Total Allowable Catches) Notice (No. 2) 1987 The Fisheries (Recordkeeping) The South·East Area Regulations 1990 (Commercial Fishing) Regulations 1986
The Fisheries (Reporting) Regu- The Southland and Sub-
lations 1990 Antarctic Areas Gazette (Commercial Fishing) Regulations 1986 The Fisheries (Satellite Vessel Notice Declaring Fishery Monitoring) Regulations Amateur Management Areas 1986 1993 The Fisheries (Form of Trans· The Auckland and Kermadec The Fisheries (1994-95 Jack fer or Lease of Quota) Regu Areas (Amateur Fishing) Mackerel Quota Allocation) lations 1993 Regulations 1986 Notice 1994 The Fisheries (1994-95 Jack The Central Area (Amateur Mackerel Quota) Regula Fishing) Regulations 1986 tions 1994
Purpose of Bill The principal purpose of the Bill is to provide for the sustainable utilisation of New Zealand's fisheries resources. The Bill seeks- (a) To encourage investment in fishing and the efficient utilisation of the fisheries resources by providing certainty, minimising transaction costs and enforcement costs, maximising opportunities for acquiring and disposing of fishing rights, improving the processes for public participation in fisheries management, and providing an efficient means of resolving conflicts between users; ana (b) To discourage short·sighted and undesirable behaviour by providing appropriate criminal and civil penalties.
General Approach The Bill contains a mixture of the old and new. In general, the language of provisions being carried over has been retained unless the relevant policy has changed or good reason exists for rewording the provision. However there has been a re-ordering of material and some lengthy provisions have been broken up. Consequently the Bill will be considerably longer in some areas than the present Act.
PART I
PRELIMINARY PROVISIONS This Part contains defmitions, states the relationship with certain other enactments, and states the purpose and main principles of the Bill. 111
Clause 3 requires persons construing the Bill and persons performing or exercising functions, duties, and powers to have particular regard to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and New Zealand's international obligations relating to fishing. Clause 5 provides that the Bill binds the Crown. Clause 6 defines the term "sustainable utilisation". Clause 7 states the environmental principles that apply under the Bill. These are that stocks be maintained at or above defined levels, the effects of fishing on associated and dependant species be taken into account, and the biological diversity of the aquatic environment be conserved.
PART II
INFORMATION PRINCIPLES AND ENVIRONMENTAL STANDARDS Clause 8 requires that decisions under the Act be based on the best available information and makes it clear that inconclusive scientific information is not in itself a good reason for inaction. Clauses 9 and 10 provide for the setting of environmental standards. Clause 11 requires the Minister to set total allowable catches for each stock subject to the quota management system. The total allowable catch will be set in relation to each stock management area and is the basis for the setting of total allowable commercial catches.
PART III
QUOTA MANAGEMENT SYSTEM This is a lengthy and complex Part. It applies to existing quota management stocks (which are provided for in Part XV of the Bill) and to new stocks declared to be subject to this Part by means of a notice in the Gazette given under clause 17.
General
Fishing for any stock under a quota management system requires- (a) Sufficient annual catch entitlement for the stock; and (b) A current fishing permit. The starting point is the setting of the total allowable catch (TAC). This is done for each quota management stock area by area and published in the Gazette. The areas are called stock management areas and are defned in the First Schedule to the Bill, although different areas may be defined in the notice under clause 17 that brings the stock under the quota management system. The TAC is the maximum catch that may be taken in the case of any stock. Once the TAC is set, the Minister must next set the total allowable commercial catch (TACC) for the stock, which must not exceed the TAC. Clause 18 provides for the setting of the TACC by notice in the Gazette. The TACC may be varied in the same manner and this may affect existing quota holdings. In the event of a reduction in the TACC (which means that each quota holder's share of the TACC is reduced), the Crown must transfer sufficient unencumbered Crown quota (if it has any) to existing quota holders so that their respective annual catch entitlements are held at the same level as before the reduction in the TACC. Clause 20 sets out the Crown's obligations in this event. In the event of an increase in the TACC, any consequential change to quota allocations is notified under clause 21. A further change to quota allocations will occur in the event of a subdivision or an amalgamation of a stock management area under clause 81. 1V
Quota Allocation Quota will be allocated in one of 2 forms: provisional individual transferable quota (which is non-tradeable) and individual transferable quota (which is a tradeable right). New quota will be allocated on the basis of provisional catch history and in total will comprise 100,000,000 shares, although an individual's share of the TACC is actuaily a share of the 80,000,000 shares remaining after the allocation to the Treaty of Waitangi Fisheries Commission is made in accordance with dause 32. Clauses 24 and 28 require the Ministry to notify those persons whom the chief executive considers are eligible for provisional catch history of the allocations to be made. Provisional catch history will be allocated on the basis of catch history or individual catch entitlement specified by a fishing permit or other authority. If a fisher has provisional catch history for a stock and a current fishing permit for the stock, the fisher is eligible to receive provisional individual transterable quota for the stock. There are rights of appeal in respect of disputes about catch history and against allocations of provisional catch history or quota (clawes 36 and 40). After the allocations have been settled, the non·tradeable provisional quota is replaced by a tradeable permanent quota. The notice given under clause 17 will specify the date on which a stock becomes subject to the quota management system. The Treaty of Waitangi Fisheries Commission will receive 20 percent (20,000,000 shares) of quota for each new stock brought under this Part of the Bill (claute 32). The remaining unallocated quota for any stock will be allocated to the Crown as Crown quota.
Annual Catch Entitlements (ACE's) ACE's are spawned by both kinds of quota in accordance with the formula set out in dawe 31 and are tradeable rights like individual transferable quota. ACE's are central to the quota management regime because catch must be covered by ACE's in order to avoid certain consequences which differ according to the regime applying to the stock taken.
Regimes There are 2 regimes in operation. One is "the annual catch entitlement before fishing regime", which relates to stock specified in the Second Schedule to the Bill and essentially allows fish to be taken only with the authority of suffuient ACE's. The other is "the retrospective balancing regime", which essentially allows fish to be taken without sufficient ACE's so long as the fisher acquires enough ACE's to cover the catch before the end of the relevant catch period.
Other Features Both regimes attract deemed value liability where the catch is not covered by ACE's. Failure to pay deemed value liabilities can lead to the suspension and revocation of a fishing permit and the placing of a caveat on quota. The existing aggregation limits (clause 76) and prohibitions against transferring quota to foreign interests (clawa 77 to 80) are substantially re-enacted.
PART IV
FOREIGNI LICENSED AcCESS The Part re-enacts provisions that are currently contained in the Territorial Sea and Exclusive Economic Zone Act 1977. V
PART V
ACCESS Access to fisheries resources is controlled by means of permits. The Bill provides for the issue of 2 kinds of permits. One is called a fishing permit and this is the principal mechanism for controlling fishing. The qualifications for the issue of a fishing permit are set out in clause 103. The other permit is called a special permit and is available for the purposes of research and similar purposes, and to disabled persons who could not otherwise comply with a fishing permit. Clause 107 relates to special permits.
PART VI
CONFLICT RESOLUTION This Part applies to disputes about access to fisheries resources but does not apply to disputes about the sustainability of those resources. The Minister must issue a statement setting out a procedure for the resolution of disputes about access to fisheries resources. If the parties are unable to resolve the issues in dispute, the Minister has power to appoint a Commissioner to hold an inquiry and report back to the Minister. All such disputes will be determined by the Minister.
PART VII
REGISTRATION OF TRANSFERS, MORTGAGES, VESSELS, ETC. This Part of the Bill contains registration provisions for dealings in quota and annual catch entitlements that are based on provisions contained in Parts III, VII, IX, and X of the Radiocommunications Act 1989 (which provisions are based on provisions contained in the Land Transfer Act 1952). Attention is drawn to clause 150, which provides that the register provides conclusive proofof ownership of quota and annual catch entitlements. The same does not apply to the registration of fishing vessels but the register in that case does provide evidence of title.
PART VIII
TAIAPURE-LOCAL FISHERIES AND CUSTOMARY FISHING This Part substantially re-enacts Part IIIA of the Fisheries Act 1983.
PART IX
RECORDKEEPING AND REPORTING This Part substantially re-enacts provisions in section 66 of the Fisheries Act 1983.
PART X
APPOINTMENT AND POWERS OF FISHERY OFFICERS This Part substantially re-enacts Part VI of the Fisheries Act 1983. The principal changes are as follows: (a) The power of a Fishery Officer to use reasonable force in the exercise of powers conferred by the Bill is expressly stated in dause 198: (b) Clause 215 provides for complaints to be made against Fishery Officers and investigated by an independent person: (c) The observer programme provided tor in clause 217 replaces the scientific observer scheme under section 67c of the Fisheries Act 1983.
PART XI
OFFENCES AND PENALTIES This Part substantially re·enacts provisions in Part VII of the Fisheries Act 1983. V1
The principal changes are as follows: (a) The provision in section 107B of the Fisheries Act 1983 that provides for the forfeiture of quota upon conviction for certain offences is not being re-enacted: (b) penalties for offences include community-based sentences where the maximum fine is $5,000 for a first offence or $10,000 for a second or subsequent offence: (c) An infringement offence procedure for minor offences is established by clause 257.
PART XII
COST RECOVERY This Part substantially re·enacts sections 107EA tO 107EG of the Fisheries Act 1983 (as inserted by the Fisheries Amendment Act 1994).
PART XIII
FISHERIES ADMINISTRATION This Part re-enacts provisions relating to flsheries that are contained in the Ministry of Agriculture and Fisheries Act 1958. That Act is repealed by Part XI/I of the Bill.
PART XIV
MISCELLANEOUS PROVISIONS This Part provides for the making of regulations and other matters. Attention is drawn to clawe 307 which contains a mechanism for applying the Commodity Levies Act 1990 in a modified manner to sh.
PART XV
REPEALS, AMENDMENTS, VALIDATIONS, SAVINGS, AND TRANSITIONAL PROVISIONS This Part effects the repeal of the Fisheries Act 1983 and contains other provisions as follows: (a) Clause 310 changes the title of the Fishing Industry Board Act 1963 and re- names the Board as the New Zealand Seafood Industry Board: (b) Clause 313 continues the various regulations made under the Fisheries Act 1983: (c) Clause 315 continues in force existing provisions relating to controlled fisheries: (d) Clauses 317 to 319 contain transitional provisions relating to rock lobster: (e) Clause 320 continues in force existing provisions relating to marine farming permits and spat catching permits. Ultimately, these provisions will be replaced by the proposed aquaculture legislation: (f) Clause 321 continues in force existing provisions relating to the Southern Scallop Fishery: (g) Clause 322 continues in force the transitional levies provisions contained in the Fisheries Amendment Act 1994: (h) Clause 329 transforms all existing leases of quota into caveats: (i) Clause 330 provides for the phasing out of agreements to catch against another person's quota: (j) Clause 331 allocates jack mackerel quota. Attention is also drawn to the amendments set out in the Sixth Schedule. The Wildlife Act 1953, the Marine Reserves Act 1971, and Marine Mammals Protection Act 1978 are consequentially amended to protect species that may be cauht by fishers as bycatch and to align the provisions relating to seizure and forieiture with provisions contained in Part X of the Bill. Vil
PART XVI
REPEAL OF MINISTRY OF AGRICULTURE AND FISHERIES ACT 1953 This Part repeals the Ministry of Agriculture and Fisheries Act 1953 and facilitates the creation of a Ministry of Fisheries and a Ministry of Agriculture.
PART XVII
MISCELLANEOUS PROVISIONS RELATING TO AGRICULTURE This Part re·enacts provisions relating to agriculture that are contained in the Ministry of Agriculture and Fisheries Act 1953 and is similar to Part XIII of the Bill. It is expected that this Part will be divided from the Bill at a later date and enacted as a separate Act. It will be administered by the new Ministry of Agriculture. Hon. Doug Kidd
FISHERIES
ANALYSIS
Title 20. Effect of reduction of total allowable 1. Short Title and commencement commercial catch 21. Effect of increase in total allowable com· PART I Tnercial catch PRELIMINARY PROVISIONS 22. Effect of subdivision of stock manage- ment area 2. Interpretation 3. Interpretation and application of Act Allocation of Qyota Eenerally 4. References to weight of fish to be refer- 23. Allocation mechanism 24. Allocation notice ences to greenweight 5. Act to bind the Crown 25. Allocation principle 26. Eligibility criteria for allocation of provi- Purpose sional catch history 6. Purpose 27. Eligibility criteria for allocation of provi· sional individual transferable quota Environmental Principles 28. Notification of eligibility to receive pro- 7. Environmental principles visional catch history 29. Notification of eligibility to receive pro- PART II visional individual transferable quota
INFORMATION PRINCIPLES AND or individual transferable quota
ENVIRONMENTAL STANDARDS 30. Notification of eligibility to receive pro- visional catch history on basis of indi- 8. Information principles vidual catch entitlement specified by Environmental Standardl permit, etc. 31. Notification of eligibility to receive pro- 9. Procedure relating to environmental visional individual transferable quota standards or individual transferable quota 10. Environmental standards 32. Commission entitled to 20 percent of Total Allowable Catch total quota 33. Qualifying years 11. Total allowable catch 34. Calculation of provisional catch history 12. Exempted stocks 35. Transfer of provisional catch history 13. Bycatch of protected species 36. Diputes about recognition of trans- 14. Ennergency rneasures terred catch history
PART III Provaional Individual Tran»Table Quota QUOTA MANAGEMENT SYSTEM 37. Allocation of quota on basis of catch Allocation history 15. Application of this Part 38. Characteristics of provisional individual 16. Stock management areas transferable quota 1 7. Matters to be included in notice declar- 39. Characteristics of provisional catch ing new stock subject to quota man· history agennent systern 40. Rights of appeal 18. Total allowable commercial catch 19. Matters to be taken into account in Crown *ota determining or varying any total 41. Unallocated total allowable commercial allowable commercial catch catch to be held by Crown
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Allocation of Individual Transferable Quota 7 1. Re-entry to fishery after suspension of 42. Date of allocation of new quota and permit under section 68 cancellation of provisional quota 72. Provisions relating to associated persons 43. Allocation of quota where proceedings 73. Authoritative balancing determined after allocation day 74. Crown not liable for errors in quota 44. Effect of decision to alter provisional balances catch history 75. Minimum holdings of annual catch 45. Result of appeals or other proceedings entitlement not to affect quota allocated to 76. Aggregation limits Cornrnission 77. Quota not to be allocated to owners of licensed foreign fishing vessel Miscellaneow Prouisions Relating to Quota 78. Quota not to be transferred or held in respect of licensed foreign fishing ves 46. Quota to be expressed in shares sel other than by Crown 47. Rounding of amounts or shares 79. Quota or annual catch entitlement not 48. Different quota may be contained in to be allocated to overseas individuals same document or companies with overseas control
Annual Catch Entitlements 80. Chief executive may permit acquisition or continued holding of quota by per- 49. Annual catch entitlement sons to whom section 79 applies 50. Characteristics of annual catch entitlement Subdiuision and Aggregation of Stock 51. Generation of annual catch entitlement Management Areas at beginning of new fishing year 81. Subdivision and amalgamation of stock 52. Catch must be covered by annual catch management areas entitlement 82. Effect on quota where stock manage- 53. No annual catch entitlement generated ment area subdivided in certain cases 54. Minister to create additional annual PART IV catch entitlement where total allowa- ble catch increased during fishing FOREIGN LICENSED ACESS year 83. Calculation of allowable c. atch by for- 55. Annual catch entitlement transferable eign fishing craft during extended trading period 84. Apportionment of allowable catch for 56. Transfer of annual catch entitlements foreign fishing vessels generally 85. Prohibition of operation of 57. Certain transfers ineffectual unauthorised foreign fishing vessels 58. Carrying forward of underfishing in zone 59. Order of transactions at end of flshing 86. Grant of licences year 87. Renewal of licences 60. Order of transactions on first day of 88. Variation of licences new fishing year 89. Fees and royalties 90. Licensing offences Retrospectiue Balancing 91. Suspension and cancellation of licences 61. Retrospective balancing 92. Review by Courts 62. Deemed values payable where catch 93. Regulations exceeds annual catch entitlement 94. Fishing for research, experimental, and sporting purposes Annual Catch Entitlement Before Fishing Regime 95. Apprehension of offenders 96. Security for release of foreign fishing 63. Annual catch entitlement required vessels before taking certain stocks 97. Administrative penalties for minor fish- 64. Excess to be counted against annual eries ofTences catch entitlernent 98. General provisions as to offences in 65. Fisher may be required to pay deemed zone value of excess or authorised fish 66. Assessment of deemed value of stock 99. Onus of proof in respect of offences 100. Certificates as evidence
General Provisions Relating to Deemed Values PART V 67. Amount of deerned value to be ACCESS returned to fisher where annual catch entitlement subsequently obtained 101. Fishing without appropriate permit 68. Suspension of permit for non·payment prohibited of deemed value 69. Caveat registered where non·payment Fishing Permits of deemed value 102. Exceptions to requirement to hold 70. Liability for debt payable by company appropriate fishing permit left with insumcient assets 103, Application for fishing permit Fisheries 3
104. General provisions relating to fishing 139. Alteration of terms of mortgage by permits endorsement 105. Qualifications for holding fishing permit 140. Rights of mortgagee 106. Revocation of fishing permit 141. Restriction on exercise of power of sale 142. Court may permit mortgagee to exer- Special Permits cise power before period expired 107. Special permits 143. Restriction on action to recover deficiency PART VI 144. No contractin out CONFLICT RESOLUTION 145. Application of purchase money 146. Transfer by mortgagee 108. Application of this Part 147. Discharge of mortgage Statement of Procedure Acquisitions by Operation of Law 109. Minister to 1SSUe statement of 148. Person claiming under operation of law procedure 110. Content of statement may apply to have interest registered 149. Procedure on application
Commwioner Guarantee of Ownership Rights 111. Minister may appoint Commissioner to 150. Guarantee of ownership rights resolve dispute 112. Inquiries Protection of Purchasers 113. Secretarial services 114. Fees and allowances of Commissioner 151. Purchasers from owner not affected by notice 115. Protection of sensitive information 152. No liability on bona fide purchaser or 116. Commissioner to report to Minister within 3 months rnortgagee 117. Minister to determine dispute Compensation
PART VII 153. Compensation for mistake or misfea- sance of Registrar REGISTRATION OF TRANSFERS, MORTGAGES, 154. Notice of action to be served on Attor- VESSELS, ETC. ney·General and Registrar Regatration of Tramactions Relating to Quota or 155. Recovery of compensation paid and Annual Catch Entitlements costs in case of traud 118. Registers 156. Application for registration 119. Appointment of Registrars and agents 157. When instruments deemed registered 120. Matters to be shown in Individual 158. Priority according to time of Transferable Quota Register registration 121. Matters to be shown in Annual Catch 159. Registration procedure Entitlement Register 160. Provisions relating to defective applica- 122. Transfers of quota tions for registration 123. Transfers of annual catch entitlement 161. Application for correction of register 124. Mortgages of quota 162. Correction of register 125. Mortgages of annual catch entitlement 163. Instruments not effectual until prohibited registered 126. Assignment or lease of quota or annual 164. Certified copies of register to be catch entitlement prohibited evidence 165. Registers to be open for search Caveats 166. Offences relating to fraudulently pro· 127. Crown caveats and directions prevent- curing registration ing registration of transactions Miscellaneous Provisions 128. Caveat against transfer of quota or annual catch entitlement l 67. Registrar not bound to attend Court or 129. Service of notices as to caveats produce register without Court order 130. Effect of caveat 168. Liability of offl cers 131. Notice of caveat to be given to persons 169. Registrar may close register for up to affected 1 week to enable issue of annual 132. Procedure for removal of caveat catch entitlement 133. Lapse of caveat against transfer 134. Person entering or maintaining caveat Vessel Regatration without due cause liable for damages 170. Registrar and registration offices 135. Caveat may be withdrawn 1 7 1. Fishing vessels to be registered 136. No second caveat may be entered 172. Application of this Part to tenders 173. Cancellation of registration of fishing Mortgages vessel 137. Mortgage to take effect as security only 174. Taking of fish, etc., by other than New 138. Forms of mortgage Zealand ships 4 Fisheries
175. Possession of fish, etc., by vessels that Provisions Relating to Seizure are not New Zealand ships 201. Powers of seizure
PART VIII Provisions Relating to Seized Property TAIAPURE-LOCAL FISHERIES AND CUSTOMARY 202. Chief executive may release seized prop· FISHING erty under bond Taiapure-Local Fisheries 203. Seized property to be held by the Crown it not released 176. Object 204. Crown to release seized property in cer- 177. Declaration of taiapure·local fisheries tain circumstances 178. Provisions relating to order under section 177 205. Seized property forfeited to the Crown if ownership not established 179. Proposal for establishment of taiapure- 206. Chief executive may sell perishable local fishery seized property 180. Initial consideration of proposal 207. Protection of the Crown 181. Notice of proposal
182. Objections to, and submissions on, General Powers proposal 183. Inquiry by tribunal 208. General powers 184. Appeal on question of law 185. Power of Minister to recommend decla- Provisions Relating to Exercise of Powers ration of taiapure-local fishery 209. Protection against self·incrimination 186. Management ok taiapure·local fishery 210. Fishery Officer to identify himself or 18 7. Power to recommend making of herself regulations 211. Production of warrant to be sufficient authority to act Customary Fishing 212. Persons to assist Fishery Offtcer 213. Fish unft for human consumption to be 188. Regulations relating to customary hshing condemned and vessel prohibited 214. Protection of Fishery Officer from
PART IX liability 215. Complaints against Fishery Officers RECORDKEEPING AND REPORTING
189. Records and returns Examinen
216. Examiners PART X
APPOINTMENT AND POWERS OF FISHERY Obseroer Proglamme OFFICERS 217. Observer programme established Appointmmt # Fishery 0#icen 218. Appointment of observers 219. Chief executive to give notice of inten- 190. Appointment of Fishery Officers tion to place observer on vessel 191. Appointment of Honorary Fishery 220. Powers of observers Offlcers 192. Issue of warrants 221. Food and accommodation to be pro· vided for observers 222. Supervision by observers of tranship Powers of Entry, Search, and Questioning ments, dumping of fish, and opera- 193. Powers of entry and search tion of greenweight conversion 194. Conditions relating to exercise of pow- factors ers of entry, etc. 195. Power to question persons and require Disposal of Fish production of documents 223. Disposal of fish by commercial fishers Power of Arreit 224. Restrictions on purchase or acquisition of ftsh by certain persons 196. Power of arrest
PART XI Power to Giue Directions OFFENCES AND PENALTIES 197. Power to give directions to master Olfences Power to Use Reasonable Force 225. General offences 198. Power to use reasonable force in exer- 226. Obstructing Fishery Ofhcers cise of certain powers 227. Neglect or refusal to supply particulars, and improper divurging of Power to Take Copies of Documents information 199. Power to take copies of documents 228. Buying, selling, or possessing fish con· 200. Power to enter, search, and question trary to Act etc. for purpose of ascertaining finan 229. Using hazardous substance to catch or cial status of certain persons destroy fish Fisheries 5
230. Knowinsly permitting premises to be 262. Levy orders may be amended during used tor offence against Act fishing year 231. Ownership and possession of ftsh 263. Payment of levies 232. Fish on registered vessel deemed to 264. Levies to be separately accounted for have been caught in New Zealand 233. Fish taken in New Zealand fisheries PART XIII
waters must be landed in New FISHERIES ADMINISTRATION Zealand 265. Interpretation 234. Fish on registered vessel deemed 266. Inventions, etc., by employees 235. Fish or licensed premises or premises 267. Advisory committees where food sold deemed to have 268. Failure to pay statutory fees, etc. been taken for purposes of sale 269. Ministry to deduct costs of collecting 236. Fish in excess of certain quantities levies deemed to have been acquired or 2 70. Amounts payable under Act recover- possessed for purposes of sale able as statutory debts 237. Dockside monitoring 271. Caveats on quota 272. Priority of debts Proceedings, Defences, Etc. 273. Suspension of permit or fish receiver's 238. Proceedings for offences licence where levies unpaid 239. Informations relating to certain offences 274. Contracting out of contestable services may be heard together 275. Standards and specification relating to 240. Information may charge defendant with contestable services any number of offences 276. Transfer or functions and powers 241. Strict liability 277. Transfer of employees 242. Defences available to commercial fisher 278. Employment of transferred employee taking unauthorised fish deemed to be continuous 243. Liability of principal for actions of agent 279. Membership of Government Superan· in relation to records and returns nuation Fund 244. Liability of companies and persons for actions of officers and employees National Fisheries Advisory Council 245. Liability of directors and managers 280. Minister may establish National Fisher· 246. Presumption as to authority ies Advisory Council 281. Remuneration of members Evidence in Proceedings 282. Mernbers 247. Certificates and official documents 283. Chairperson 248. Copies of accounts, records, returns, 284. Administration and other documents 285. Certain powers of the Minister not to be 249. Presumption as to master of fishing delegated vessel 286. Reports 250. Presumptions to apply whether or not 287. Funds separate or further evidence adduced in support Allocation AppeaLs 288. Allocation Appeals Board established Penalties 289. Board to appoint committees 251. Penalties 290. Provisions relating to functions of Board 252. Provision for payment of fees 291. Members 253. Forfeiture of property on conviction 292. Deputies of members 254. Block on trading in quota and seizure of 293. Meetings of Board quota, where fine unpaid 294. Board may regulate its own procedure 255. Provisions relating to forfeited property 295. Meetings to be held in public except in 256. Provisions relating to forfeiture of certain circumstances licence, etc., deemed values, and 296. Fees and travelling allowances rewards 297. Administration of Board 298. Money received by Board and refunds In*ingement Notice Procedure 299. Representation of parties 257. Certain offences may be proceeded with 300. Evidence before Board by way of infringement notice 301. Decision of Board
PART XIV PART XII
MISCELLANEOUS PROVISIONS COST RECOVERY
258. Levies Regulations 259. Certain costs to be borne by the Crown 302. Regulations 260. Consultation required before levy order 303. Special regulations relating to fresh- (other than amending order) made water fish farming 261. Consultation required before amending 304. Circulars order rnade 305. General provisions as to regulations 6 Fisheries
306. Certain notices to have status of 325. Transitional provisions relating to regulations monthly quota balances 307. Application of Commodity Levies Act 326. Transitional provisions relating to cer· 1990 tain agreements having term exceed· 808. Giving of notices, etc. ing 12 rnonths 327. Transitional provisions relating to PART XV underhshing and overfishing REPEALS, AMENDMENTS, VALIDATIONS. 328. Confirmation of quota shown in SAVINGS, AND TRANSITIONAL PROVISIONS registers 329. Existing leases Repeals and Amendments 330. Existing agreements to catch against 309. Repeals another person's quota 310. Amendments to Fishing Industry Board 331. Allocation ofjack mackerel quota Act 1963 332. Chief executive may translate other 311. Amendments to other enactments rights 833. Protection of the Crown etc. Savings and Transitional Provisions 334. General saving 312. Validation of certain decisions relating to permits PART XVI 318. Savings relating to regulations etc. REPEAL OF MINISTRY OF AGRICULTURE AND 314. Savings relating to registration 315. Provisions relating to controlled 335. Abolition of Ministry of Agriculture and fisheries Fisheries 316. Savings relating to Fishery Officers, 336. Repeats examiners, and observers 337. Savings 317. Conversion of transferable term quota 338. Delegation of all chief executive's pow· (rock lobster) ers under any enactment 318. Savings relating to quota appeals relat· ing to rock lobster PART XVII 319. Transitional fishing year for packhorse rock lobster MISCELLANEOUS PROVISIONS RELATING TO 320. Transitional provisions relating to AGRICULTURE marine farming permits and spat 339. Interpretation catching permits 340. Powers of Minister 321. Transitional provisions relating to 341. Inventions, etc., by employees Southern Scallop Fishery 342. Advisory and technical committees 322. Transitional levies 343. Failure to pay statutory fees, etc. 323. Expiry of section 322 344. Ministry to deduct costs of collecting 324. Correction of species names in Fisheries levies (Quota Management Areas, Total 345. Delegation of all chief executive's pow- Allowable Catches, and Catch Histo· ers under any enactment ries) Notice 1986 Schedules
A BILL INTITULED
An Act- (a) To reform and restate the law relating to fisheries resources; and (b) To recognise New Zealand's international 5 obligations relating to fishing; and (c) To provide for related matters BE IT ENACTED by the Parliament of New Zealand as follows:
1. Short Title and commencement-(1) This Act may be cited as the Fisheries Act 1994. 10 (2) This Act shall come into force on a date to be appointed by the Governor-General by Order in Council; and different dates may be so appointed by one or more Orders in Council for different provisions and different purposes. Fisheries 7
PART I
PRELIMINARY PROVISIONS 2. Interpretation-(1) In this Act, unless the context otherwise requires,- 5 "Allocation Appeals Board" means the Allocation Appeals Board established under section 288 of this Act: "Annual catch entitlement" means an annual catch entitlement allocated under section 51 or section 54 or section 58 of this Act: 10 "Annual catch entitlement before fishing regime" means the annual catch entitlement regime established by sections 63 to 66 of this Act: "Approved" means approved by the chief executive: "Approved form" means a form prescribed by regulations 15 made under section 302 of this Act or approved by the chief executive: "Aquatic ecosystem" means any system of interacting aquatic life within its natural and physical environment: 20 "Aquatic environment"- (a) Means the natural and biological resources comprising the aquatic ecosystem; and (b) Includes all aquatic lite and the oceans, seas, coastal areas, inter-tidal areas, estuaries, rivers, lakes, 25 and other places where aquatic life exist: "Aquatic life" means any species of plant or animal life which, at any time in the life history of the species, must inhabit water; and includes seabirds (whether or not in the aquatic environment): 30 "Associated or dependent species" means any non- harvested species taken or otherwise affected by the taking of any harvested species: "Associated person", in relation to any person, includes- (a) Any person who is in partnership with that 35 person: (b) Any person who is a director or employee of any company of which that person is a director or employee: (c) Any person who is a relative of that person, as 40 defined in paraaph (a) of the definition ot that term in section OB 1 ot the Income Tax Act 1994: (d) Any person who, for the purposes of the Income Tax Act 1994, would be a person associated 8 Fisheries
with that person as provided in section OD 7 of that Act: (e) Any beneficiary or trustee of any trust of which that erson is a trustee or beneficiary;- and 'associated" has a corresponding meaning: 5 "Best available information" means the best information that, in the particular circumstances, is obtainable without unreasonable cost, effort, or time: "Catch history" means the catch history of a flsher as recorded in catch landing returns and catch and 10 effort landing returns filed in respect of the qualifying years pursuant to this Act or the Fisheries Act 1983, or any regulations made under either of those Acts: "Catch period" means the relevant catch period specified under section 61 (3) of this Act: 15 "Chief executive" means the chief executive of the Ministry: "Commercial fisher" means any person who holds a fishing permit granted under section 104 of this Act entitling the person to take any species or class of 20 fish, aquatic life, or seaweed: "Commercial fishing" means taking fish, aquatic life, or seaweed in circumstances where a fishing permit is required by section 101 of this Act: "Commission" means the Treaty of Waitar® Fisheries 25 Commission established under section 4 ot the Maori Fisheries Act 1989: "Commissioner" means a Commissioner appointed under section 111 of this Act: "Court" means a District Court: 30 "Dealer in fish" means a person authorised to be a dealer in fish by or under regulations made under section 302 of this Act: "Deemed value", in relation to fish taken in excess of or without an annual catch entitlement, means the value 35 of that fish determined in accordance with section 62 or section 65 of this Act: "Dispute", in relation to access to fisheries, means a dispute to which Part VI of this Act applies: "Effect' means the direct or indirect effect of fishing on 40 the aquatic environment; and includes- (a) Any positive or adverse effect; and (b) Any temporary or permanent effect; and (c) Any past, present, or future effect; and Fisheries 9
(d) Any cumulative effect which arises over time or in combination with other effects- regardless of the scale, intensity, duration, or frequency of the effect; and also includes- 5 (e) Any potential effect of high probability; and (f) Any potential effect of low probability which has a high potential impact: "Encumbered", in relation to any quota, means subject to any agreement or arrangement whereby the right to 10 take fish under the quota has been transferred by the holder to another person: "Environmental principles" nneans environmental principles specified in section 7 of this Act: "Environmental standards" means the environmental 15 standards issued under Part 11 of this Act: "Exclusive economic zone of New Zealand" or "exclusive economic zone" means the exclusive economic zone of New Zealand as defined by section 9 of the Territorial Sea and Exclusive Economic Zone Act 20 1977: "Finfish" includes all species of finfish of the Classes Agnatha, Chondrichthyes, and Osteichthyes, at all stages of the life history of such finfish: "Fish" includes all species of finfish, shellfish, aquatic life, 25 and seaweed, at all stages of their life history: "Fishery Officer" means any person specified as such under section 190 of this Act: "Fisheries resources" means any one or more stocks or species of fish, aquatic life, or seaweed: 30 "Fishing"- (a) Means the catching, taking, or harvesting of stock; and (b) Includes- (i) Any other activity that may reasonably be 35 expected to result in the catching, taking, or harvesting of stock; and (ii) Any operation in support of or in preparation for any activities described in this definition: 40 "Fishing permit" or "permit" means a fishing permit granted under section 104 of this Act: "Fishing vessel" means any description of vessel, aircraft, hovercraft, submersible vessel, or other vessel, of whatever size, that is capable of being used for 45 fishing: 10 Fisheries
"Fishing year" means- (a) In relation to rock lobster, a period of 12 months commencing on each 1 st day of April: (b) In relation to any other species, any year so declared under section 17 (1) (e) of this Act: 5 "Foreign fishing vessel" means any fishing vessel that is not a New Zealand fishing vessel: "Foreign-owned New Zealand fishing vessel" means a fishing vessel registered with consent under section 171 (6) of this Act: 10 "Harvested species" means any stock or species that are for the time being lawfully able to be taken: "Hazardous substance" has the same meaning as in section 2 of the Hazardous Substances and New Organisms Act 1994: 15 "Holder", in relation to any document, means the person to whom the document relates:
"Individual transferable quota" means individual transferable quota allocated under section 37 or section 41 of this Act; and includes provisional individual 20 transferable quota to the extent specified in section 38 (f) of this Act: "Information" includes- (a) Scientific, customary Maori, social, or economic information; and 25 (b) Any analysis of any such information: "Information principles" means the information principles specified in section 8 of this Act: "Internal waters of New Zealand" means all internal waters of New Zealand as defined by section 4 of the 30 Territorial Sea and Exclusive Economic Zone Act 1977: "Kaitiakitanga" means the exercise of guardianship; and, in relation to any fisheries resources, includes the ethic of stewardship based on the nature of the 35
resources: "Licensed fish receiver" means a person licensed as a fish receiver under regulations made under section 302 of this Act: "Master", in relation to any vessel (whether a fishing 40 vessel or not), means any person for the time being having command or charge of the vessel: "Maximum sustainable yield", in relation to any stock, means the greatest yield that can be achieved over time while maintaining the stock's productive 45 Fisheries 11
capacity, having regard to the population dynamics of the stock and any environmental factors that influence the stock: "Meatweight", in relation to scallops, means the weight of 5 the scallops remaining when the shell, skirt, and gut have been removed and discarded: "Minister" means the Minister of Fisheries: "Ministry" means the Ministry of Fisheries: "Mortgage" means any charge on quota created under 10 this Act for securing- (a) The repayment of any loan or the satisfaction of an existing debt: (b) The repayment of future advances, or payment or satisfaction of any future or unascertained debt or 15 liability, contingent or otherwise: (c) The payment to the holders for the time being of any bonds, debentures, promissory notes, or other securities, negotiable or otherwise, made or issued by the mortgagor before or after the creation of that 20 charge: (d) The payment to any person or persons by yearly or periodical payments or otherwise of any annuity, rent, charge, or sum of money other than a debt: 25 "Mortgagee" means the proprietor of a mortgage: "Mortgagor" means any person who is the registered owner of individual transferable quota charged with a mortgage: "Net national benefit" means the sum of all costs and 30 benefits of any kind, both monetary and non- monetary: "New Zealand fisheries waters" means- (a) All waters in the exclusive economic zone of New Zealand: 35 (b) All waters of the territorial sea of New Zealand: (c) All internal waters of New Zealand: (d) All other fresh or estuarine waters where fish, aquatic life, or seaweed, that are indigenous to or acclimatised in New Zealand, are found: 40 "New Zealand fishing vessel" means any fishing vessel registered under section 171 of this Act: "New Zealand Government ship" means a ship that belongs to Her Majesty in right of New Zealand or is held by any person on behalf of or for the beneht of 45 Her Majesty in right of New Zealand; but does not 12 Fisheries
include a ship that is set aside for or used by the New Zealand Defence Force: "New Zealand Seafood Industry Board" or "Seafood Industry Board" means the New Zealand Seafood Industry Board established by section 3 (1) of the 5 Seafood Industry Board Act 1963: "Observer" means an observer appointed under section 218 of this Act: "Owner ",- (a) In relation to any fishing vessel, includes any 10 body of persons, whether incorporated or not, by which the vessel is owned and (except as provided in section 171 (7) (c) of this Act) also includes any charterer, sub-charterer, lessee, or sub-lessee of the vessel: 15 (b) In relation to any quota or annual catch entitlement, means the person shown as the owner in the appropriate register kept under Part VII of this Act: "Port" has the same meaning as in section 2 (1) of the Harbours Act 1950: 20 "Possession" means possession of or control over any fish, or possession ot or control over any vessel, container, package, thing, or place in or on which the fish are tound, either jointly or on one's own account: "Premises" means any land or building; and includes any 25 vessel, aircraft, or hovercraft, or any vehicle or conveyance of any kind whatever: "Processing" includes cutting, shelling, and the use of all methods of manufacture and preservation: "Protected species" means- 30 (a) Marine mammals as defined in section 2 of the Marine Mammals Protection Act 1978: (b) Any marine species specifled in Schedule 7A to the Wildlife Act 1953: (c) Any seabirds of the Procellariidae or 35 Diomedeidae families that have been determined by the Minister of Conservation to be the subject of a population management plan under section 14F of the Wildlife Act 1953: "Provisional catch history" means the provisional catch 40 history of a fisher determined under section 34 or obtained under section 35 of this Act: "Provisional individual transferable quota" means provisional individual transferable quota allocated under section 37 of this Act: 45 Fisheries 13
"Qualifying years", in relation to 9 stock, has the meaning given to it by section 33 ot this Act: "Quota management system" means a Eluota management system established under Part 111 oi this 5 Act: "Quota management stock" means any stock declared pursuant to section 17 of this Act to be a quota management stock or otherwise subject to the quota management system established under Part Ill ot this 10 Act: "Record" includes- (a) Any information however recorded or stored, whether manually or by mechanical, electronic, or other means; and 15 (b) Any form or other document whether or not it has been connpleted: "Registered fisher", in relation to a registered fishing vessel, means the person shown in the appropriate register of fishing vessels as the person using the 20 vessel for commercial fishing: "Register of fishing vessels" means any register kept under section 171 of this Act: "Registrar", in relation to the registration of anything under this Act, means- 25 (a) A Registrar of Fisheries; or (b) A Registrar of Annual Catch Entitlement; or (c) A Registrar of Individual Transferable Quota; or (d) A Registrar of Fishing Vessels,- who is authorised under this Act to perform functions 30 and exercise powers in relation to such registration: "Registrar of Annual Catch Entitlement" means a Registrar of Annual Catch Entitlement appointed or designated under section 119 of this Act: "Registrar of Individual Transferable Quota" means a 35 Registrar of Individual Transferable Quota appointed or designated under section 119 of this Act: "Registrar of Fishing Vessels" means a Registrar of Fishing Vessels appointed or designated under section 170 of this Act: 40 "Retrospective balancing regime" means the annual catch entitlement regime established by sections 61 and 62 of this Act: "Rock lobster" means- (a) The spiny rock lobster (/asus edwardsii); and 45 (b) The packhorse rock lobster (/asus verreauxi): 14 Fisheries
"Sale" includes- (a) Every method of disposition for valuable consideration, including barter; and (b) The disposition to an agent for sale on consignment; and 5 (c) OfFering or attempting to sell, or receiving or having in possession for sale, or exposing for sale, or sending or delivering for sale, or causing or permitting to be sold, offered, or exposed for sale; and 10 (d) Disposal by way of raffle, lottery, or other game of chance; and- "sell" and "sold" have corresponding meanings: "Scallop" means the mollusc Pecten nouaezelandiae; but does not include scallop spat: 15 "Scallop spat"- (a) Means the larval stage of the mollusc Pecten nouaezelandiae; and (b) Includes any shelled animal of that species that has been retained by fishing gear on which it settled 20 while in the larval stage: "Seaweed" includes all kinds of algae and sea-grasses that grow in New Zealand fisheries waters: "Share", in relation to any quota, has the meaning given to it by section 46 of this Act: 25 "Shellfish" includes all species of the phylum Echinodermata and phylum Mollusca and all species of the Class Crustacea at all stages of the life history of such fish:
"Southern scallop" means any rnollusc Pecten 30 nouaezelandiae that is found in the Southern Scallop Fishery; but does not include any scallop spat found m those waters: "Southern Scallop Fishery" means the fishery specified in Schedule 1 D to the Fisheries Act 1983: 35 "Special permit" means a special permit granted under section 107 of this Act: "Sports fish" has the same meaning as in section 2 (1) of the Conservation Act 1987: "Stock" means any fish, aquatic life, or seaweed of one or 40 more species that are treated as a unit for the purposes of fisheries management: "Stock management area" means any area declared by or under section 16 of this Act to be a stock management Fisheries 15
area or deemed by this Act to be a stock management area: "Sustainable utilisation" has the meaning given to it by section 6 (2) of this Act: 5 "Taking" nneans fishing; and "to take" has a corresponding meaning: "Tangata whenua", in relation to a particular area, means the iwi, or hapu, that holds mana moana or mana whenua over that area: 10 "Territorial sea of New Zealand" or "territorial sea" means all the waters of the territorial sea of New Zealand as defined by section 3 of the Territorial Sea and Exclusive Economic Zone Act 1977: "Tidal lands" means such areas of land as are covered and 15 uncovered by the effect of ordinary spring tides: "Tidal water" means such part of the sea or internal waters as is within the effect of ordinary spring tides: "Tikanga Maori" means Maori customary values and practices: 20 "Total allowable catch" means a total allowable catch specified by notice in the Gazette under section 11 of this Act: "Total allowable commercial catch", in relation to any stock subject to the quota management system under 25 Part 111 of this Act, means a total allowable commercial catch specified for that stock by notice in the Gazette under section 18 of this Act: "Transaction" means a transaction involving quota, provisional catch history, or an annual catch 30 entitlement: "Unfished annual catch entitlement",- (a) In relation to any catch and in relation to the fishing year to which the entitlement relates, means the amount by which the entitlement exceeds the 35 amount of reported catch taken durmg that fishing year by the owner: (b) In relation to any catch and in relation to any balance date, means the amount by which the entitlement exceeds the amount of reported catch 40 taken during that fishing year before that date: "Whitebait" includes juveniles of all species of the genus Galaxias: "Working day" means any day except- 16 Fisheries
(a) A Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign's birthday, and Waitangi Day; and (b) A day in the period commencing with the 20th day of December in any year and ending with the 5 15th day ofJanuary in the following year. (2) For the purposes of this Act- (a) Any person who is not otherwise ordinarily resident in New Zealand shall be deemed to be ordinarily resident in New Zealand if- 10 (i) The person has resided in New Zealand for not less than two and a half years during the period of 3 years immediately preceding the date on which the matter is to be determined; and (ii) The chief executive is satisfied that the person is 15 likely to continue to reside permanently in New Zealand: (b) A body corporate shall be deemed to be wholly or significantly controlled from outside New Zealand if 25 percent or more of the voting power is held by or 20 on behalf of an individual or individuals who is or are not ordinarily resident in New Zealand or a body or bodies corporate that, by virtue of this provision, is or are wholly controlled from outside New Zealand, or a combination of such individuals and bodies corporate: 25 (c) Stock shall be deemed to be sold if it forms part of a meal and either- (i) Payment for that meal or any part of the meal is made; or (ii) The meal is supplied to any person (whether in 80 accordance with the terms of the contract of service or otherwise) who is employed by the person by whom the meal is supplied. (3) For the avoidance of doubt, it is hereby declared that, unless the context otherwise requires,- 35 (a) Every reference in this Act to any flsheries resources, stock, habitat, location of stock, quota, or entitlement includes any part thereof: (b) Every reference in this Act to 9 fish, aquatic life, or seaweed includes all stages oi their life history; and 40 also includes dead fish, aquatic life, or seaweed; and also includes any part thereof (c) Every reference in this Act to any quota includes an interest in the quota: Fisheries 17
(d) The expression of any matter or thing by way of example does not limit the generality of the provision in which the example appears or to which the example relates. (4) No person shall be deemed to be an associated person in 5 relation to any other person unless the first-mentioned person- (a) Holds any permit, licence, or other authority to take fish pursuant to this Act or any regulations made under it;
or 10 (b) Held any permit, licence, or other authority to take fish pursuant to this Act or any regulations made under it that has been revoked within the immediately preceding 2 years pursuant to section 68 of this Act; or (c) Holds any quota or annual catch entitlement. 15 (5) For the puroses of this Act, a person shall be deemed to be associated witn another person where one of them benefits or will be benefit in any way, whether directly or indirectly, from any arrangement relating to fish, which arrangement involves that other person, whether directly or indirectly and 20 whether or not that other person benefits from that arrangement; but a person shall not be deemed to be associated with a company that has shares publicly listed on any stock exchange merely because that person owns shares in that company. 25 (6) For the purposes of subsection (5) of this section, the expression "arrangement relating to fish" includes- (a) Any arrangement concerning the sale or purchase of quota or annual catch entitlements: (b) Any arrangement concerning the taking of fish, except 30 any arrangement concerning an employment relationship: (c) Any financial arrangement concerning quota or annual catch entitlements, or relatin to any vessel or other equipment used or capable ot being used to take fish: 35 (d) Any arrangement relating to the receiving of fish.
C£ 1977, No. 28, s. 2 (1); 1983, No. 14, s. 2; 1986, No. 34, s. 2; 1989, No. 159, s. 48; 1990, No. 29, s. 2; 1990, No. 31, s. 129; 1992, No. 90, s. 2; 1993, No. 67, s. 2
3. Interpretation and application of Act generally- 40 (1) It is the intention of Parliament that this Act shall be interpreted, and that all persons exercising or performing functions, duties, or powers conferred or imposed by or under it shall act, in a manner consistent with- 18 Fisheries
(a) The provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; and (b) New Zealand's international obligations relating to fishing (to the extent that such obligations do not conflict with the provisions of the Treaty of Waitangi 5 (Fisheries Claims) Settlement Act 1992). (2) Notwithstanding any provision in the Resource Management Act 1991, the right of access to any fisheries resources between the sectors referred to in subsection (4) of this section, and the manner in which such access is allocated or 10 controlled, shall be determined exclusively under this Act and nothing in the Resource Management Act 1991 applies in respect of those matters. (3) The following provisions apply in relation to the exclusive economic zone: 15 (a) Nothing in this Act shall be construed to authorise the imposition of a term of imprisonment on any crew member of any foreign fishing vessel in respect of any offence: (b) Where, but for this subsection, a person would be liable to 20 suffer imprisonment for tne commission of any offence, he or she shall instead of such imprisonment be liable on summary conviction to a flne not excee (ling- (i) In the case of any licensee, owner, or master of 25 the foreign fishing vessel, $10,000: (ii) In the case of any other crew member of this foreign fishing vessel, $ 1,000. (c) Any offence agamst this Act that is committed within the exclusive economic zone of New Zealand shall be 30 deemed to have been committed in New Zealand. (4) The sectors are- (a) Commercial fishers: (b) Recreational fishers: (c) Maori non-commercial customary shers: 35 (d) Fish farmers: (e) Other fishers not included in any sector referred to in any of paragraphs Ca) to Cd) of this subsection.
4. References to weight of fish to be references to greenweight-(1) Except where otherwise expressly provided, 40 every reference in this Act to the weight of fish, aquatic life, or seaweed shall be construed as a reference to the sreenweight of the flsh, aquatic life, or seaweed which shall be the weight Fisheries 19
thereof before any processing commences and before any part is removed. (2) The Minister, after consultation with the New Zealand Seafood Industry Board, may from time to time, by notice in 5 the Gazette, specify conversion factors which shall, except in the case of fish, aquatic life or seaweed that are subject to a certificate given under subsection (4) of this section, for all purposes (including any proceedings for an offence against this Act or any regulation made or notice given under this Act) be 10 used to determine the greenweight of any fish, aquatic life or seaweed. (3) The Minister, after consultation with the New Zealand Seafood Industry Board, may from time to time, by notice in the Gazette, specify conversion factors in respect of scallops 15 which shall for all purposes (including any proceedings for an offence against this Act or any regulation made or notice given under this Act) be used to determine the meatweight of the scallops. (4) The chief executive may, in respect of any vessel on 20 which fish, a(juatic life, or seaweed are processed and frozen, having regara to the method of processing or the processing history of the vessel and after consultation with the owner or master of the vessel, certify in writing conversion factors which shall, in relation to fish, aquatic life, or seaweed taken, 25 processed, or landed by that vessel, for all purposes (including any proceedings for an offence against this Act or any regulation made or notice given under this Act) be used to determine the greenweight of any fish, aquatic life, or seaweed taken, processed, or landed by that vessel within the terms of 30 the certificate. (5) A certificate given under subsection (4) of this section,- (a) Shall be notified to the registered fisher or master of the vessel concerned as soon as practicable after it is made: 35 (b) Subject to subsection (6) of this section, shall apply in respect of fish, aquatic life, or seaweed taken, processed, or landea after such date or occasion as may be specified in the certificate, and may be expressed to apply for such period or until such date 40 or occasion as may be specihed in the certificate: (c) May be subject to such terms and conditions, whether as to methods of taking, processing, or packing fish, aquatic life, or seaweed, the presence ot observers or Fishery Officers, the recording of catches, or 45 otherwise, as the chief executive thinks fit to impose: 20 Fisheries
(d) Subject to subsection (6) of this section, may at any time be revoked by the chief executive by notice in writing, or may be amended by a further certificate given by the chief executive under subsection (4) of this section, with effect from such date or occasion as may be specified 5 in the notice or certiflcate. (6) Any certicate given under subsection (4) of this section, and any revocation made under subsection (5) of this section, shall take effect not earlier than the earliest of the following dates or occasions: 10 (a) The commencement of the fishing year following that in which the registered fisher or master of the vessel is notified of the certificate or revocation: (b) The next departure of the vessel from any New Zealand port folfowing the notification of the certificate or 15 revocation: (c) The day on which any observer who is present on the vessel concerned after the registered hsher or master is notified of the certificate or revocation certifies that the current catch of the vessel has been recorded by 20 that observer: (d) Such earlier date as may be agreed between the chief executive and the registered fisher or master of the vessel.
Cf. 1983, No. 14, s. 3A; 1986, No. 34, s. 4; 1990, No. 29, 25 s. 3
5. Act to bind the Crown-This Act shall bind the Crown.
Cf. 1983, No. 14, s. 2A; 1986, No. 34, s. 3
Purpose 6. Purpose-(1) The purpose of this Act is to provide for the 30 sustainable utilisation ot fisheries resources. (2) In this Act, "sustainable utilisation" means conserving, using, enhancing, and developing fisheries resources in a way, or at a rate, which enables people to provide for their social, economic, and cultural well-being whilst having regard to the 35 need to-- (a) Sustain the potential of the resources to meet the reasonably foreseeable needs of current and future generations; and (b) Avoid, remedy, or mitigate any adverse effects of fishing 40 on the aquatic environment; and Fisheries 21
(c) Safeguard the life-supporting capacity of the aquatic environment from the effects of fishing. Cf. 1991, No. 69, s. 5
Environmental Principles 5 7. Environmental principles-In achieving the purpose of this Act, all persons exercising or performing functions, duties, or powers under it, in relation to the conservation, use, enhancement, and development of fisheries resources, shall have regard to the following environmental principles: 10 (a) Harvested stocks must be maintained at or above defined levels sufficient to achieve the purpose of this Act, while recognising the natural variability of stocks: (b) The effects of fishing on associated and dependent species, and on the ecological relationships between 15 harvested species and associated and dependent species, shall be taken into account with a view to restoring populations of such associated and dependent species above such levels at which their reproduction may become seriously threatened: 20 (c) The biological diversity of the aquatic environment shall, as far as possible, be conserved.
PART II
INFORMATION PRINCIPLES AND ENVIRONMENTAL STANDARDS 8. Information principles-In achieving the purpose of 25 this Act, all persons exercising or performing functions, duties, or powers under this Part of this Act shall have regard to the following information principles: (a) Decisions should be based on the best available information: 30 (b) That where- (i) There is any threat of serious or irreversible damage to any fisheries resources or the aquatic environment from fishing; and (ii) Scientific information on the matter is 35 inconclusive,- inconclusive scientific information is not a valid reason for not taking any action.
Environmental Standards 9. Procedure relating to environmental standards- 40 (1) The Minister, after consultation with such persons and organisations as the Minister considers are representative of the 22 Fisheries interests affected by this Part of this Act, shall publicly notify a draft statement oi procedure for developing environmental standards for the purpose of this Act. (2) The places at which the draft statement of procedure shall be available shall be notified in a daily newspaper in each 5 of the cities of Auckland, Wellington, Christchurch, and Dunedin within 6 months after the commencement of this Part of this Act. (32 Any person may, within 1 month after the public notihcation of the statement of procedure under subsection (2) of 10 this section, make a submission about the draft to the Minister. (4) The Minister shall, after having due regard to the submissions (if any) received on the draft statement of procedure, and within 1 month after the receipt of the last submission (if any), issue the statement of procedure for 15 developing environmental standards for the purpose of this Act. (5) The places at which the statement of procedure shall be available shall be notified in a daily newspaper in each of the cities of Auckland, Wellington, Christchurch, and Dune(lin. 20 (6) The Minister shall from time to time, at such intervals as the Minister considers appropriate, in like manner review the statement of procedure ana may, in such manner, at any time- (a) Amend the statement; or 25 (b) Revoke the statement and substitute a new statement. (7) Every statement of procedure under this section shall- (a) Provide opportunities for any interested person to identify issues of concern and propose solutions in relation to the sustainability of fisheries resources: 30 (b) Provide a process for determining, in consultation with all relevant parties, whether a problem or issue relates to the sustainability of fisheries resources or is a matter that relates to disputes about access to fisheries resources: 35 (c) Provide for consultation, including regional and local consultation as appropriate: (d) Provide for input and participation by tangata whenua having an interest in the fisheries resources concerned, having particular regard to kaitiakitanga: 40 (e) Specify dates or time limits for specified actions, as appropriate: (fj Provide for transparent and accountable decision making: Fisheries 23
(g) Provide for integration of the process for establishing environmental standards and the process for establishing research priorities.
10. Environmental standards-(1) The Minister, after 5 having regard to- (a) The purpose of this Act, the environmental principles, and the information principles; and (b) Any existing controls under this Act in respect of the stock or area concerned,- 10 may from time to time issue environmental standards relating to one or more specified stocks or areas. (2) Without limiting the generality of subsection (1) of this section, environmental standards may relate to- (a) The minimum legal size of fish of any specified stock that 15 nnay be taken: (b) The areas from which any specified stock may be taken: (c) The fishing methods by which any specified stock may be taken or that may be used in any specified area: (d) The fishing seasons in respect of any specified stock, area, 20 method, or vessel: (e) The catch limit for any specified stock or, in the case of stocks managed under the quota management system, any total allowable catch for any specified stock: 25 (f) Avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment. (3) The Minister may amend or revoke any environmental standard after having regard to- (a) The purpose of this Act, the environmental principles, and 30 the information principles; and (b) Any existing controls under this Act in respect of the stock or area concerned. (4) The Minister shall issue environmental standards by notice in the Gazette. 35 (5) Without limiting the general power to make regulations conferred by section 302 of this Act, the Governor-General may from time to time, by Order in Council, make such regulations as may be necessary or expedient to implement environmental standards issued by the Minister under this section.
40 Total Allowable Catch
11. Total allowable catch-(1) Subject to this section, the Minister shall, by notice in the Gazette, specify in respect of each 24 Fisheries stock management area an annual total allowable catch for each stock that is subject to a quota management system. (2) Except as provided in subsection (3) of this section, the Minister shall specify a total allowable catch that, on the balance of the evidence before the Minister,- 5 (a) Maintains the stock at a level that can produce the maximum sustainable yield; or (b) Maintains the stock above a level that can produce the maximum sustainable yield, having regard to the net national benefit and interdependence of stocks; or 10 (c) Enables the stock to be altered in a way and at a rate that will result in the stock being maintained at a level at or above the level that can produce the maximum sustainable yield within a period appropriate to the stock, having regard to the stock characteristics, the 15 net national benefit, and the interdependence of stocks. (3) The Minister may specify a total allowable catch that is consistent with a stock level below the level that produces the maximum sustainable yield if- 20 (a) The Minister is satisfied that such a total allowable catch will provide a greater net national benefit than would be achieved by a total allowable catch specified in accordance with subsection (2) of this section, having regard to the interdependence of stocks; and 25 (b) The Minister has considered the risks to the sustainability of the stock and adverse effects on the environment. (4) Every total allowable catch specified under this section shall take effect on the commencement of the fishing year to which it relates. 30 (5) The Minister may review and, by notice in the Gazette at any time during any fishing year, increase from any specified date any total allowable catch in respect of any specified stocks; but, where a total allowable catch in respect oi any stock has been increased during a fishing year, the total allowable catch 35 in respect of that stock shall, as fom the close of that fishing year, be deemed to be the total allowable catch that applied immediately before that increase took effect. (6) The Minister may postpone the gazettal of total allowable catches until the close of the second fishing year after the 40 commencement of this section. Fisheries 25
( 7) The Minister shall, by notice in the Gazette, outline the reasons for any decision under subsections (1) to (5) of this section. Cf. 1983, No. 14, ss. 28c, 281), 280B-28OE; 1986, No. 34, 5 s. 10; 1990, No. 29, s. 5-(1); 1992, No. 90, s. 4; 1992, No. 121, s. 24 (1)
12. Exempted stocks-(1) Where the Minister is satisfied that, due to the special circumstances of any stock subject to a quota management system, a total allowable catch should be 10 set at a level other than one of the levels referred to in subsection (2) or subsection (3) of section 11 of this Act, the Minister may at any time, by notice in the Gazette, exempt any stock from that provision. (2) In every notice under subsection (1) of this section, the 15 Minister shall- (a) Determine in respect of that stock an alternative total allowable catch that meets the purpose and principles of this Act; and (b) Give reasons for specifying a different level of total 20 allowable catch.
13. Bycatch of protected species-(1) Without limiting the general power to make regulations conferred by section 302 of this Act, the Governor-General may from time to time, by Order in Council, make regulations requiring, or authorising 25 the chief executive to require, the holder of any fishing permit to furnish the Minister with such information as the Minister may specify with respect to bycatch comprising any protected species. (2) The Minister shall ensure that the maximum allowable 30 fishing-related mortality level specified in any relevant population management plan under section 14F of the Wildlife Act 1953 or section 3E of the Marine Mammals Protection Act 1978 is not exceeded and shall, if necessary, after consultation with the Minister of Conservation, recommend the making of 35 regulations under subsection (3) of this section for the purpose. (3) Any regulations made under this section may impose in respect of bycatch comprising any protected species such controls (including restrictions, prohibitions, and conditions) as may be necessary or expedient to ensure that the maximum 40 allowable fishing-related mortality level specified in any relevant population management plan under section 14F of the Wildlife Act 1953 or section 3E of the Marine Mammals Protection Act 1978 is not exceeded. 26 Fisheries
14. Emergency measures-(1) Where there is-- (a) An outbreak of disease; or (b) A serious change in the sustainability of one or more stocks or fisheries resources; or (c) An adverse effect in the aquatic environment,- 5 the Minister may, by notice in the Gazette, impose such emergency measures (including closure of any area to harvesting of all or any stocks) as the Minister considers necessary or expedient. (2) An emergency measure under this section may be in force 10 for a period not exceeding 3 months and, after consultation by the Minister with such persons or organisations as the Minister considers are representative of persons having an interest in the stock or fisheries resources concerned or its effect on the environment, may be renewed once only for a further period 15 not exceeding 3 months. (3) The Minister shall ensure that all emergency measures imposed under this section are notified- (a) In at least 1 newspaper circulating generally in the area affected by the notice; or 20 (b) In the case of a notice affecting the whole or a substantial part of New Zealand fisheries waters, in the metropolitan newspapers. (4) Every person commits an offence and is liable to a fine not exceeding $250,000 who contravenes or fails to comply 25 with any emergency measure imposed under this section. Cf. 1983, No. 14, ss. 65, 85; 1986, No. 34, s. 13
PART III
QUOTA MANAGEMENT SYSTEM Allocation 30 15. Application of this Part-This Part of this Act applies to- (a) Every stock declared from time to time by the Minister, by notice under section 17 of this Act, to be a quota management stock; and 35 (b) Every species or class of fish that was, immediately before the commencement of this Part of this Act, subject to Part HA or Part IIB of the Fisheries Act 1983 by virtue of a declaration made by or under that Part of that Act. 40
16. Stock management areas-(1) The stock management areas referred to in section 15 (a) of this Act shall be defined from Fisheries 27
time to time by the Minister in a notice given under section 17 of this Act in relation to any stock and the notice may define the stock management area to which the notice relates by reference to an area or areas defined in the First Schedule to 5 this Act or in any other manner specified in the notice. (2) The stock management areas to which each declaration referred to in section 15 (b) of this Act relates are the quota management areas that were, immediately before the commencement of this Part of this Act, referred to in section 10 2 (1) or section 28BA (2) of the Fisheries Act 1983 or declared under section 288 (3) of that Act. (3) So far as is practicable, the Minister shall maintain the same stock management areas for different species or classes of fish.
15 CE 1983, No. 14, s. 288 (3), (4); 1986, No. 34, s. 10
17. Matters to be included in notice declaring new stock subject to quota management system-(1) The Minister, aiter consultation with the Commission, the Seafood Industry Board, and such other persons or organisations as the 20 Minister considers relevant, may from time to time, by notice in the Gazette,- (a) Declare any stock to be subject to the quota management system on and from a specified date, being the first day of the fishing year specified in respect of that 25 stock: (b) Define the stock management area to which the notice relates in such manner as section 16 (1) of this Act provides: (c) Specify whether the stock is subject to the annual catch 30 entitlement before fishing regime or the retrospective balancing regime: (d) Specify, in relation to the stock, the amount of annual catch entitlement (being an amount not exceeding 20 percent of any holding of individual transferable 35 quota or provisional individual transferable quota) that may be carried forward under the underfishing provisions of this Part of this Act: (e) Specify the fishing year in respect of the stock, being a 12- month period commencing on the 1 st day of April or 40 the 1 st day of October specified in the notice: (f) Specify whether the guota will generate annual catch entitlements specihed in meatweight or greenweight, and the relevant conversion factors to apply: 28 Fisheries
(g) Specify the minimum annual catch entitlement holding that must be held for the purposes of section 75 of this Act: (h) Specify such other matters as may be contemplated by this Act. 5 (2) Except as provided in section 81 of this Act, no declaration under subsection (1) of this section or referred to in section 16 (2) of this Act shall be revoked and no area may be excluded from any stock management area except by Act of Parliament. (3) Subsection (2) of this section does not prevent the Minister 10 making a notice varying the date on and from which any quota management system is to come into force. Cf. 1983, No. 14, s. 288 (1), (3), (5), (6); 1986, No. 34, s. 10
18. Total allowable commercial catch-(1) Subject to this section, the Minister shall, by notice in the Gazette, specify in 15 respect of each stock management area the total allowable commercial catch for each quota management stock that is available for commercial fishing. (2) Without limiting the generality of subsection (1) of this section, in srecifying the total allowable commercial catch for 20 any stock, tne Minister may specify that the total allowable commercial catch shall be zero. (3) The Minister may, in like manner, vary the total allowable commercial catch in respect of any stock. (4) A total allowable commerciaf catch shall not be specified 25 for any stock unless- (a) A total allowable catch has been specified for that stock under section 11 of this Act; and (b) The stock is a stock to which this Part of this Act applies. (5) The Minister may vary or specify a total allowable 30 commercial catch under this section only with effect on and from the first day of the fishing year in respect of the stock concerned. (6) The Minister shall not specify a total allowable commercial catch in respect of any stock that is greater than 35 the total allowable catch in respect of that stock. Cf. 1983, No. 14, ss. 28c; 1990, No. 29, s. 5 (1)
19. Matters to be taken into account in determining or varying any total allowable commercial catch-(1) In specifying or varying any total allowable commercial catch for 40 any stock, the Minister shall, using the best available iniormation, have regard to- (a) The total allowable catch for the stock; and Fisheries 29
(b) The non-commercial fishing interests in the stock, being- (i) Maori customary non-commercial fishing interests, as recognised by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; and 5 (ii) Recreational and other fishing interests; and (c) Any allowable catch available for any foreign fishing vessel under section 84 of this Act; and (d) All other sources of fishing mortality on the stock; and (e) Where a determination made under section 83 of this Act 10 results in an increased allowable catch for licensed foreign fishing vessel, the means available to the Crown to give effect to the determination without exceeding the total allowable commercial catch. (2) Before specifying or varying a total allowable commercial 15 catch for any stock, the Minister shall consult such persons and organisations as the Minister considers have an interest in the stock.
Cf. 1983, No. 14, ss. 28D; 2808 (1), (2); 1990, No. 29, ss. 5 (1), 15
20 20. Effect of reduction of total allowable commercial catch-(1) Where a total allowable commercial catch for any stock is reduced, the chief executive shall,- (a) Where the Crown holds an amount of unencumbered quota that would have generated an amount of 25 annual catch entitlement under the immediately preceding total allowable commercial catch that exceeds the amount by which the total allowable commercial catch has been reduced, transfer to every existing quota holder, in the form in which quota is 30 held by the quota holder, so much of the Crown's shares in quota as will ensure that the resulting quota held by those holders will generate the same amount of annual catch entitlement as those holders would have received but for the reduction in the total
35 allowable commercial catch: (b) Where the Crown holds insufficient unencumbered quota to satisfy the provisions of paragraph (a) of this subsection, transier to every existing quota holder, in the form in which quota is held by the quota holder, 40 the Crown's unencumbered quota holdings on a pro rata basis. (2) Any Crown quota held for the purposes of giving effect to the Crown's obligations under the Maori Fisheries Act 1989 30 Fisheries shall be regarded as encumbered quota for the purposes of this section. (3) The chief executive shall notify every quota holder affected by a reduction in the total allowable commercial catch of the reduced total allowable commercial catch and of any 5 consequential change in the number of the holder's quota shares and in the number of shares that is equivalent to 1 kilogram of the reduced total allowable commercial catch. (4) No reduction of quota pursuant to this section- (a) Shall be regarded as giving rise to a right to compensation 10 in respect of the reduction: (b) Shall be regarded as placing the Crown or any other person in breach ot, or default under, any contract or other arrangement relating to quota, or as otherwise making them guilty of a civil wrong: 15 (c) Shall invalidate any contract or other arrangement in relation to quota, or be regarded as giving rise to a right for any person to terminate or cancel any such contract or other arrangement, except to the extent that specific provision to the contrary is made in 20 relation to any such reduction in the relevant contract or other arrangement. C£ 1983, No. 14, s. 28OD; 1990, No. 29, s. 15
21. Effect of increase in total allowable commercial catch-(1) The chief executive shall notify every quota holder 25 affected by an increase in the total allowable commercial catch of the increased total allowable commercial catch and of any consequential change in the number of the holder's quota shares and in the number of shares that is equivalent to 1 kilogram of the increased total allowable commercial catch. 30 (2) Where there is an increase in the total allowable commercial catch in respect of any stock in respect of which any person - (a) Held, immediately before the commencement of this Part of this Act, provisional maximum individual 35 transferable quota for the stock that had been reduced under section 28N of the Fisheries Act 1983; and (b) Holds individual transferable quota for that stock on the date on which the increase takes effect,- 40 then, the Crown shall deduct from every quota holder's holdings, on a pro rata basis, an amount of quota that in total would generate an amount of annual catch entitlement equivalent to the increase in the total allowable commercial Fisheries 31
catch and transfer that quota in accordance with subsection (3) of this section. (3) The Crown shall transfer to the persons referred to in paragraphs (a) and (b) of subsection (2) of this section so much of the 5 quota deducted from quota holders under that subsection as may be necessary to put those persons in the same position as they would have been in ii their respective provisional maximum individual transferable quotas had not been reduced under section 283 of the Fisheries Act 1983. Any amount of 10 quota remaining after such transfer shall be transferred on a pro rata basis to every quota holder from whom it was deducted in the form in which quota is held by the quota holder. Cf. 1983, No. 14, s. 280E (1) (a), (5); 1990, No. 29, s. 15
15 22. Effect of subdivision of stock management area- Where any stock management area is subdivided under section 81 of this Act,- (a) A notice shall be given under section 18 of this Act specifyin the total allowable commercial catch in 20 respect ot each area created by the subdivision or the new area created by an amalgamation; and (b) The chief executive shall notify the flshers affected of the reallocations of quota.
Allocation of Quota 25 23. Allocation mechanism-(1) Provisional catch history is the mechanism by which quota shall be allocated under this Part of this Act. (2) Provisional catch history shall be allocated on the basis of catch history in the manner specified in section 26 of this Act, 30 except in the case of any stock that, as at the date on which it becomes subject to the quota management system by virtue of a notice under section 17 of this Act, is managed by means of individual catch entitlements specified by a permit, licence, or any regulation made under this Act, or any combination of 35 them. (2) No decision to manage any stock by means of individual catch entitlements specified by a permit, licence, or any regulation made under this Act, or any combination of them shall be liable to be challenged, reviewed, or quashed, or called 40 into question in any Court.
24. Allocation notice-(1) In the case of any stock that is to be allocated provisional catch history on the basis of catch 32 Fisheries history, the chief executive shall, as soon as practicable after the publication of the notice under section 17 of this Act declaring the stock to be a quota management stock,- (a) Notify such persons as the chief executive considers are eligible ior an allocation of provisional catch history 5 in respect of the stock and such of those persons as the chief executive considers are el®ble for an allocation of provisional individual transterable quota in respect of the stock; and (b) Send the notification to the person's last known address 10 and request the person to notify the chief executive on or before a specified date (being not earlier than 90 days after the date of the notification sent by the chief executive) of - (i) The period of 12 consecutive months within the 15 qualifying years that the person wishes to be used as a basis for the allocation of provisional catch history to the person; and (ii) Any reasons why the person is el{gille for the allocation of provisional individual transierable quota 20 (if the chief executive has notified the person that the chief executive considers the person not to be eligible for an allocation of such quota); and (c) In the case of any person who does not notify the chief executive in accordance with paragraph (b) of this 25 subsection, determine the period of 12 consecutive months within the qualifying years that is to be used as a basis for the allocation of provisional catch history in that case, being the 12 months that have the highest total catch based on catch effort landing 30 returns or catch landing returns for the relevant stock that have been completed and furnished to the Ministry not later than the 15th day of October 1994. (2) The chief executive shall cause to be published in any newspaper circulating in any area where the chief executive 35 considers that persons to whom subsection (1) of this section may be expected to reside an advertisement that shall- (a) Be published for the first time within 10 working days after the date of the notification under subsection (1) (a) of this section and be published a second time not less 40 than 10 working days but not more than 15 working days after the date of the first advertisement; and (b) Specify the criteria of eligibility for an allocation of provisional catch history and provisional individual transferable quota for the stock; and 45 Fisheries 33
(c) Invite any person who has not received a notification under paragraph (a) of this subsection, but who believes that he or she is eligible for an allocation of provisional catch history or provisional individual 5 transferable quota or both for the stock to notify the chief executive by a specified date (being not later than 90 days after the date of the notification under paragraph (a) of this subsection) of the grounds for that belief and the consecutive 12 month period within the 10 qualifying years for the stock that the person wishes to be used as a basis for the allocation of provisional catch history to the person.
25. Allocation principle-The total amount of all provisional individual transferable quota and individual 15 transferable quota allocated in respect of any stock shall at all times equal 100,000,000 shares.
26. Eligibility criteria for allocation of provisional catch history-(1) Where, pursuant to section 17 of this Act, a stock is declared to be a quota management stock, a sher is 20 eligible to receive provisional catch history for the stock if the fisher- (a) Held, at any time during the qualifyins years, a fishing permit for the stock or a controlled hshery licence for the stock; and 25 (b) Either- (i) Has, on or before the 15th day of October 1994, completed and furnished to the chief executive catch landing returns or catch and effort landing returns in respect of the stock in respect of the qualifying years; 30 or (ii) In the case of a stock regulated, as at the date on which the declaration takes effect, by way of individual catch entitlements specified by permits, licences, or regulations, is a person who has such a 35 catch entitlement; or (iii) In the case of any stock of aquatic life or seaweed for which returns were not required to be furnished between the 1 st day of October 1990 and the 30th day of September 1992, has completed and 40 furnished in respect of the qualifying year catch landing returns or catch and effort landing returns 34 Fisheries
not later than 3 months after the close of the qualifying year for the stock. Cf. 1983, No. 14, s. 28E; 1986, No. 34, s. 10
27. Eligibility criteria for allocation of provisional individual transferable quota-A fisher is eligible to receive 5 provisional individual transferable quota in respect of a stock declared by notice under section 17 of this Act to be a quota management stock if the fisher- (a) At the date of the publication of the notice, either holds a current fishing permit for the stock or a current 10 controlled fishery licence for the stock; and (b) Has obtained provisional catch history for the stock.
28. Notification of eligibility to receive provisional catch history-(1) At any time after the expiration of the 90- day period referred to in section 24 (1) (b) of this Act, the chief 15 executive shall, - (a) In the case of any person whom the chief executive considers to be eligible to receive provisional catch history for a stock, notify the person of the chief executive's opinion: 20 (b) In the case of any person referred to in paragraph (a) of this subsection whom the chief executive considers to be eligible to receive provisional individual transferable quota for the stock, notify the person of the amount of such catch history the chief executive considers the 25 person is eligible to receive: (c) In the case of any person who has applied to the chief executive for an allocation of provisional catch history or provisional individual transferable quota, where the chief executive considers the person is not 30 eligible to receive the provisional catch history or quota, notify the person of the chief executive's opinion. (2) Every notification under subsection (1) of this section shall be in writing and state- 35 (a) That any appeal in respect of the person's eligibility to receive provisional catch history or provisional individual transferable quota, or in respect of the amount of provisional catch history to which the chief executive considers the person is eligible to receive, 40 must be lodged not later than the date specified for the purpose by the chief executive by notice in the Gazette; and Fisheries 35
(b) If the chief executive considers the person is not eligible to receive provisional individual transferable quota, that the person must transfer the person's provisional catch history within 90 days after the date specified 5 under paragraph (a) of this subsection, unless the person appeals in respect of the matter. (3) The date specified in any notice under subsection (2) (a) of this section shall be not less than 90 days after the date of the publication of the notice in the Gazette.
10 29. Notification of eligibility to receive provisional individual transferable quota or individual transferable quota-At any time after the date specified under section 28 (2) (a) of this Act in respect of the stock concerned and after the total allowable catch and the total allowable commercial 15 catch for the stock have been declared, but before the commencement of the fishing year in which the stock becomes subject to the quota management system, the chief executive shall notify those persons whom he or she considers to be eligible to receive provisional individual transferable quota or 20 individual transferable quota of- (a) The total allowable catch; and (b) The total allowable commercial catch; and (c) The proposed allocation provisional individual transferable quota or individual transferable quota- 25 in respect of each stock for which the chief executive considers the person to be eligible to receive such quota.
30. Notification of eligibility to receive provisional catch history on basis of individual catch entitlement specified by permit, etc.-(1) In the case of any stock in 30 respect of which provisional catch history is to be allocated on the basis of individual catch entitlements specified in a permit, licence, or regulation, the chief executive shall, after the stock is declared by notice under section 17 of this Act to be a quota management stock, notify every person whom the chief 35 executive considers to be eligible to receive provisional catch history for the stock of the amount of provisional catch history the chief executive considers the person to be eligible to receive. (2) Every notification under subsection (1) of this section shall- 40 (a) Be sent to the person's last known address; and (b) State that any appeal in respect of the amount of provisional catch history specified in the notice must be lodged not later than the date specified for the 36 Fisheries
purpose by the chief executive by notice in the Gazette. (3) The date specified in any notice under subsection (2) (b) of this section shall be not less than 90 days after the date of the publication of the notice. 5
31. Notification of eligibility to receive provisional individual transferable quota or individual transferable quota-At any time after the date specified under section 30 (2) (b) of this Act in respect of the stock concerned and after the total allowable catch and the total allowable commercial 10 catch for the stock have been declared, but before the commencement of the fishing year in which the stock becomes subject to the quota management system, the chief executive shall notify those persons whom he or she considers to be eligible to receive provisional individual transferable quota or 15 individual transferable quota of- (a) The total allowable catch; and (b) The total allowable commercial catch; and (c) The proposed allocation of provisional individual transferable quota or individual transferable quota- 20 in respect of each stock for which the chief executive considers the person to be eligible to receive such quota.
32. Commission entitled to 20 percent of total quota- (1) The chief executive shall allocate to the Commission 20,000,000 shares of individual transferable quota in respect of 25 each stock declared on or after the commencement of this Part of this Act to be a quota management stock. (2) Every allocation under subsection (1) of this section shall be made on or before the date on which the balance of provisional individual transferable quota or individual transferable quota 30 for the stock is allocated.
33. Qualifying years-For the purposes of the allocation of provisional catch history in respect of any stock, the qualifying yearsare-- (a) The fishing years commencing on the 1st day of October 35 1990 and the 1st day of October 1991; or (b) In the case of provisional catch history allocated on the basis of individual catch entitlements specified in permits, licences, or regulations, the fishing year in which the stock is declared under section 17 of this Act 40 to be a quota management stock; or Fisheries 37
(c) In the case of a person who, immediately before the commencement of this Part of this Act, held a fishing permit issued under section 2 (2) of the Fisheries Amendment Act 1994, but does not for the time 5 being have in respect of the stock a catch history in respect of the qualifying years, the first fishing year after the 30th day of September 1992 in which the person was entitled to fish for the stock; or (d) In the case of a person who holds a fishing permit for the 10 harvestins of aquatic life or seaweed for which returns ior the stock were not required to be completed and furnished between the 1 st day of October 1990 and the 30th day of September 1992, the first fishing year in which the fisher is required to 15 complete and furnish returns for the stock.
34. Calculation of provisional catch history-The provisional catch history of a fisher shall be deemed to be- (a) The total weight of fish reported against the fisher's permit in the catch landing returns or catch and 20 effort landing returns completed and furnished on or before the 15th day of October 1994 in respect of the period of 12 consecutive months within the qualifying years, which period shall be- (i) Chosen by the fisher in accordance with section 25 24 (1) (b) of this Act; or (ii) Chosen by the chief executive in accordance with section 24 (1) (c) of this Act (where the fisher elects not to make a choice under section 24 (1) (b) of this Act);
or 30 (b) In the case of any stock allocated on the individual catch entitlements specified in a permit, licence, or regulation, the fisher's individual catch entitlement (as so specified) for the fishing year in which the stock is declared under section 17 of this Act to be a quota 35 management stock; or (c) In the case of any stock of aquatic life or seaweed for which returns were not required to be furnished between the 1st day of October 1990 and the 30th day of September 1992, the total weight of aquatic 40 life or seaweed reported against the fisher's permit in respect of the qualifying year in the catch landing returns or the catch and effort landing returns completed and furnished not later than 3 months after the close of the qualifying year for the stock. 38 Fisheries
35. Transfer of provisional catch history-(1) Provisional catch history is transferable in accordance with this section. (2) Provisional catch history in respect of any stock may be transferred only if- (a) The transferor is not eligible to receive provisional 5 individual transferable quota for the stock; and (b) The transferor has not appealed against the amount of provisional catch history allocated to the transferor; and (c) The transfer will take effect during the transfer period and 10 the chief executive has been notified of the transfer during that period. (3) For the purposes of subsection (2) of this section, the transfer period shall be the later of the following: (a) The period commencing on the date of the publication of 15 the notice referred to in section 28 (2) (a) of this Act and ending with the close of the date specified in that notice; or (b) A date that is 90 days after the date of the determination of any appeal in respect of the provisional catch 20 history being transferred. (4) Where provisional catch history for any stock is allocated to any person who is not eligible to receive provisional individual transferable quota for the stock, and the provisional catch history is not transferred and notified to the chief 25 executive within the transfer period, that provisional catch history shall be cancelled by the chief executive. (5) Notwithstanding mything in subsections (2) to (4) of this section, where any transier of provisional catch history occurs by operation of law and it is not practicable to notify the chief 30 executive of the transfer within the transfer period, the transferee shall notify the chief executive of the transfer as soon as possible after the transfer takes effect. (6) All transfers other than transfers by operation of law shall be made on the approved form; and any transfer that is 35 required to be on the approved form but is not on that form shall have no effect. (7) A transferee shall lodge a copy of the transfer, together with the prescribed fee (if any) with the Registrar of Individual Transferable Quota and, if the transfer complies with the 40 requirements ot this Act, the Registrar shall record the transfer in the register and shall notify the chief executive, the transferor, and the transferee accordingly. Fisheries 39
36. Disputes about recognition of transferred catch history-(1) Where any matter relating to a transfer of provisional catch history is disputed by any of the parties to the transfer, the chief executive shall, in determining the amount 5 of provisional individual transferable quota to be allocated to the transferee, exclude the transferred provisional catch history to which the dispute relates, so long as the parties have referred their dispute to the Allocation Appeals Board and have notified the chiei executive of that referral. 10 (2) The parties to the transfer may refer the dispute to the Allocation Appeals Board and the Registrar oi Individual Transferable Quota shall give effect to the Board's decision or any order in respect of the matter by a Court of competent jurisdiction. 15 (3) No compensation or other payment shall be payable by the Crown to any person by reason only of the exclusion under subsection (1) of this section of any transferred provisional catch history from the determination of a fisher's provisional catch histoI]y or any subsequent allocation of provisional individual 20 transferable quota.
Provisional Individual Tranerable QFota 37. Allocation of quota on basis of catch history- (1) The chief executive shall allocate to everv eligible fisher an amount of provisional individual transferable quota or 25 individual transferable quota for the stock concerned, which amount shall be expressed as shares and be the lesser of- (a) Such number of shares as will generate an amount of annual catch entitlement equivalent to the fisher's provisional catch history for the stock: 30 (b) Such proportion of the 80,000,000 shares of quota available for allocation for the stock as the fisher's provisional catch history bears to the total provisional catch history held by fishers who are eligible to receive provisional individual transferable quota or 35 individual transferable quota for the stock. (2) Where any fisher who is eligible to receive provisional individual transierable quota for the stock has lodged an appeal in respect of the fisher's provisional catch history, the hsher shall be allocated provisional individual transferable quota. 40 (3) Except as provided in subsection (2) of this section, the quota allocated shall be individual transferable quota. 40 Fisheries
38. Characteristics of provisional individual transferable quota-Provisional individual transferable quota- (a) Is a proportional share of the total allowable commercial catch: 5 (b) Has effect until the close of the fishing year in which the fisher's provisional catch history becomes conclusive and is thereupon deemed to be cancelled: (c) May be increased or reduced as a consequence of the determination of any appeal against the allocation of 10 quota or the cancellation of Crown quota: (d) Is not transferable except by operation of law: (e) Creates an entitlement to annual catch entitlements as if it were individual transferable quota: (f) Shall be deemed to be individual transferable quota for 15 the purposes of the provisions of this Act relating to offences and deemed values: (g) Creates an underfishing entitlement.
39. Characteristics of provisional catch history- Provisional catch history- 20 (a) Is equivalent to the fisher's reported catch over the specified 12 consecutive months within the qualifying years or the individual catch entitlements for the year in which the stock was declared under section 17 of this Act to be a quota management stock: 25 (b) Is a contingent right that comes into existence upon notification by the chief executive or the Allocation Appeals Board: (c) Is transferable within the transfer period specified in respect of the stock: 30 (d) Does not confer any entitlement to take fish: (e) Shall be expressed m tonnes or parts of a tonne: (f) Shall not be increased or reduced as a result of changes to the total allowable commercial catch for the stock: (g) May be increased or reduced as a consequence of the 35 determination of any appeal against the determination of provisional catch history or the resolution of any dispute as to transferred catch history in respect of the fisher concerned: (h) In the case of persons who are not eligible for provisional 40 individual transferable quota at the expiration of their transfer period, it shall be deemed to be cancelled unless earlier transferred, and in every other case it shall be frozen upon becoming conclusive. Fisheries 41
40. Rights of appeal-(1) Any fisher may, oIl or before the date specified in the relevant notice under section 28 (2) (a) or section 30 (2) (b) of this Act, appeal to the Allocation Appeals Board against a decision of the chief executive not to allocate 5 provisional catch history or provisional individual transferable guota to the fisher on the ground that the fisher is not eligible for such an allocation. In the course of such an appeal, the fisher may seek a declaration from the Board stating the amount of provisional catch history the fisher would be entitled 10 to receive it the fisher is eligible to receive any provisional catch history. (2) Any fisher who has been allocated provisional catch histoy by the chief executive may, on or before the date specitied in the relevant notice under section 28 (2) (a) or section 15 30 (2) (b) of this Act, appeal to the Board against the amount of any such provisional catch history allocated to the fisher by the chief executive.
Crown Quota
41. Unallocated total allowable commercial catch to be 20 held by Crown-(1) The Chief Executive shall allocate to the Crown, in the form of provisional individual transferable quota or individual transferable quota, all the remaining quota shares for a stock that have not been allocated to other persons. (2) Quota allocated to the Crown under subsection (1) of this 25 section, shall be held as unencumbered provisional individual transferable quota until such time as either- (a) The Crown has disposed of the quota as a result of a total allowable commercial catch reduction; or (b) As a consequence of decisions by the Allocation Appeals 30 Board; or (c) Until all other provisional individual transferable quota for that stock has been transformed into individual transferable quota,- whichever is the later; and, at that time, such provisional 35 individual transferable quota held by the Crown shall be transformed into individual transferable quota. (3) Without limiting any other provisions of this Act, the chief executive may, on behalf of the Crown,- (a) Purchase any individual transferable quota: 40 (b) Hold any quota so acquired without being obliged to offer it to any fisher: (c) Transfer any individual transferable quota held by or on behalf of the Crown. 42 Fisheries
(4) Where quota or rights under quota are held by or on behalf of the Crown, the Crown shall have all the rights that would be enjoyed by any such holder who is not the Crown. Cf. 1983, No. 14, s. 28u (1), (3); 1989, No. 159, s. 65; 1992, No. 121, s. 27 5
Allocation of Individual Transferable Quota 42. Date of allocation of new quota and cancellation of provisional quota-(1) On the day on which a stock becomes a quota management stock, the Chief Executive shall- (a) Issue provisional individual transferable quota to all 10 fishers who are eligible to receive provisional individual transferable quota and who have appealed in respect to the amount of provisional catch history allocated to them; and (b) Issue individual transferable quota to all other fishers 15 eligible to receive provisional individual transferable quota. (2) The provisional catch history of every fisher who is allocated individual transferable quota pursuant to subsection (1) (b) of this section shall, on and from the date of the 20 allocation, be deemed to be frozen for all purposes at the level then recorded in the provisional catch history register.
43. Allocation of quota where proceedings determined after allocation day-(1) Where any proceedings before the Allocation Appeals Board or any Court are determined at least 25 90 days before the last day ot a fishing year, the provisional individual transferable quota allocated to tile fisher (if any) shall be deemed to be cancelled at the close of that fishing year and the chief executive shall allocate to the fisher in accordance with section 42 of this Act an amount of individual transferable 30 quota calculated in accordance with section 37 (1) of this Act. (2) Where any proceedings before the Allocation Appeals Board or any Court are not determined at least 90 days before the last day of a fishing year, the fisher may request the Chief Executive to allocate individual transferable quota to the fisher 35 on the last day of the fishing year in which the proceedings are determined; and, in that case, the fisher shall not have any right of appeal or review in respect of the proceedings so determined or in respect of the fisher's eligibility or the guantum of provisional catch history for that stock, and the 40 hsher's provisional catch history shall thereupon be deemed to be frozen for all purposes at the level then recorded in the provisional catch history register. Fisheries 43
44. Effect of decision to alter provisional catch history-(1) The appropriate Registrar of Fisheries shall, in accordance with this section and as soon as practicable after the Allocation Appeals Board releases a decision or any Court 5 of competent jurisdiction makes an order in respect of any fisher, adjust the provisional catch history for the fisher in the appropriate register in such manner as may be necessary to give full effect to the decision or the order. (2) At the close of the last dav of a fishing year during which 10 a fisher's provisional catch history has been adjusted in accordance with subsection (1), the chief executive shall- (a) Transfer the fisher's provisional individual transferable quota to the Crown; and (b) Calculate the amount of provisional individual 15 transferable quota or individual transferable quota to which the fisher is entitled following the adjustment to the fisher's provisional catch history in accordance with subsection (1) of this section; and (c) To the extent that the Crown has sufficient provisional 20 individual transferable quota to satisfy the fisher's entitlement to provisional individual transferable guota or individual transferable quota, transfer to the tisher that amount of its provisional individual transferable quota as provisional individual 25 transferable quota or individual transferable quota; and (d) To the extent that the Crown does not have sufficient provisional individual transferable quota to satisfy the hsher's entitlement to provisional individual 30 transferable quota or individual transferable quota, deduct from all other quota holders on a pro rata basis sufFicient quota so that, in addition to the Crown's provisional individual transferable guota holdings, the Crown has sufficient quota to satisfy the 35 fisher's entitlement to provisional individual transferable quota or individual transferable quota, and then transfer that quota to the fisher as individual transferable quota. (3) If the provisional catch history of more than one fisher 40 has been adjusted in accordance with subsection (1) of this section in any fishing year, then, in taking the steps specified in subsection (2) of this section, the chief executive shall take those steps simultaneously in respect of all such flshers. 44 Fisheries
45. Result of appeals or other proceedings not to affect quota allocated to Commission-No determination of the Allocation Appeals Board or order of any Court shall have the effect of reducing the amount of quota to which the Commission is entitled under section 32 of this Act for any stock 5 to an amount below 20,000,000 shares.
Miscellaneous Provisions Relating to Quota 46. Quota to be expressed in shares-(1) For the purposes of this Act, in relation to any stock, provisional individual transferable quota and individual transterable quota shall be 10 expressed as shares that are whole numbers, and- (a) The sum of that quota shall be 100,000,000 shares for each stock; and (b) The value of 1 share is equal to one hundred millionth of the total allowable commercial catch for the stock. 15 (2) Before the commencement of each fishing year, the chief executive shall, by notice in the Gazette, specify in respect of every quota management stock the amount of shares that equates to 1 kilogramme. CE 1983, No. 14, s. 280 (2); 1986, No. 34, s. 10 20
47. Rounding of amounts or shares-(1) The sum of provisional individual transferable quota and individual transferable quota shall always equal 100,000,000 shares. (2) The sum of annual catch entitlements as at the beginning of the fishing year to which they relate shall not exceed the 25 total allowable commercial catch. (3) No dealing in parts of a kilogramme or a parts of a share shall have any effect.
48. Different quota may be contained in same document-No provisional individual transferable quota or 30 individual transferable quota shall be allocated in respect of more than one stock, but guota for more than one stock may be contained in the same document. CE 1983, No. 14, s. 280 (3); 1986, No. 34, s. 10
Annual Catch Entitlements 35 49. Annual catch entitlement-Except as provided in section 53 of this Act, individual transferable quota and provisional individual transferable quota both generate a transferable entitlement to be called an annual catch entitlement. 40 Fisheries 45
50. Characteristics of annual catch entitlement-An annual catch entitlement- (a) Shall be expressed in kilogrammes: (b) Relates to the stock management area of the quota from 5 which it is generated: (c) Relate to the stock of the quota from which it is generated: (d) Shall be restricted to the fishing method, if any, applicable to the quota from which it is generated: 10 (e) Relates to the fishing year in which it is generated.
51. Generation of annual catch entitlennent at beginning of new fishing year-At the commencement of each fishing year, the Registrar shall allocate to every person who owns quota an amount of annual catch entitlement 15 calculated in accordance with the following formula:
(A + 100,000,000 )XB=C
where- A is the number of shares of provisional individual transferable quota or individual transferable quota 20 owned by the quota owner; and B is the total allowable commercial catch expressed in tonnes or parts thereof; and C is the amount of annual catch entitlement generated expressed in tonnes or parts thereo£
25 52. Catch must be covered by annual catch entitlement-(1) Except as provided in subsection (2) of this section and in the case of stock subject to the retrospective balancing regime, every fisher commits an offence and is liable to a fule not exceeding $250,000 who takes any stock without 30 or in excess of the authority of an annual catch entitlement. (2) A fisher may, without further authority than an appropriate fishing permit, take stock for the fisher's own use as bait.
53. No annual catch entitlement generated in certain 35 cases-Where the sum of individual transferable quota or provisional individual transferable quota held in respect of any hsh by an owner would otherwise generate annual catch entitlements for the fish of less than 1 kilogramme, no annual catch entitlement shall be conferred in respect of the quota and 40 no fish may be taken under the quota, but nothing in this section prevents the transfer of that amount of quota. 46 Fisheries
54. Minister to create additional annual catch entitlement where total allowable catch increased during fishing year-(1) Where- (a) The total allowable catch in respect of any stock is increased during a fishing year; and 5 (b) The Minister would have increased the total allowable commercial catch but for section 18 (5) of this Act,- the Minister may create additional amounts of annual catch entitlements that do not exceed the amount by which he or she would have increased the total allowable commercial catch. 10 (2) Each owner of provisional individual transferable quota or individual transferable quota shall be entitled to a proportion of such annual catch entitlements calculated in accordance with the following formula: (A + 100,000,000) XB=C 15 where- A is the number of shares of provisional individual transferable quota or individual transferable quota owned by the quota owner as at the date of creation of those annual catch entitlements; and 20 B is the increase that would otherwise have been made to the total allowable commercial catch expressed in tonnes or parts thereof; and C is the amount of annual catch entitlement to which the quota owner is entitled expressed in tonnes or 25 parts thereof. (3) The Chief Executive shall notify every owner to whom the entitlement applies of the owner's share of the additional amount of annual catch entitlements.
55. Annual catch entitlement transferable during 30 extended trading period-(1) An annual catch entitlement may be transferred at any time up to the close of the second month after the end of the fishing year in which it is generated or created and shall, subject to subsection (2) of this section, be effective for all the purposes of this Act for that fishing year. 35 (2) In respect of annual catch entitlements relating to those stocks specified in the Second Schedule to this Act, no acquisition of annual catch entitlements after the 15th day after the close of the fishing year shall operate so as to provide a defence for the purposes of section 52 of this Act. 40 Fisheries 47
56. Transfer of annual catch entitlements generally- (1) Annual catch entitlements may be transferred in the manner provided in section 123 of this Act except,- (a) In the circumstances set out in section 57 of this Act (where 5 the transfer would leave the person selling the annual catch entitlement with insufficient annual catch entitlement to cover reported catch); or (b) Where a Court has made an order preventing the transfer; or 10 (c) Where a caveat has been registered in respect of that annual catch entitlement in accordance with any of sections 69,127,128, and 271 of this Act.
57. Certain transfers ineffectual-No transfer of any annual catch entitlement during a fishing year shall be 15 registered or have effect to the extent that the transfer would reduce the transferor's annual catch entitlement holdings to an amount lower than the amount of catch reported by the transferor during that fishing year.
58. Carrying forward of underfishing-( 1) The Registrar 20 shall, as soon as practicable after the close of the second month after the end oi every fishing year, calculate the amount of underfishing entitlements and allocate those entitlements as additional annual catch entitlements in accordance with this section. 25 (2) The amount of underfishing entitlement shall be the lesser of- (a) The holder's unfished annual catch entitlements: (b) That proportion of the annual catch entitlements generated in respect of that fisher under section 51 of 30 this Act (being the generation at the beginning of the fishing year), being the amount specified in respect of that stock pursuant to a notice under section 17 of this Act or, in the case of any stock referred to in section 15 (b) of this Act, being 20 percent. 35 (3) Nothing in this section applies in respect of rock lobster or southern scallops or those stocks in respect of which there is no underfishing entitlement. (4) Any annual catch entitlement so allocated shall have effect on and from the date of allocation and may be dealt with 40 in the same manner as if allocated under section 51 of this Act. Cf. 1983, No. 14, s. 28v; 1990, No. 29, s. 22 (1) 48 Fisheries
59. Order of transactions at end of fishing year-On the last day of each fishing year, the following steps shall be taken in the order specified: (a) First, the Registrar shall ensure that all transactions intended tor the last day of the fishing year shall be 5 actioned: (b) Secondly, the owner's individual transferable quota or provisional individual transferable quota as at the end of the fishing year shall be determined for the purposes of calculating any underfishing carry 10 forward entitlement (if any): (c) Thirdly, any necessary adjustments to the owner's quota that arise from any determination of the Allocation Appeals Board pursuant to section 301 of this Act shall be made. 15
60. Order of transactions on first day of new fishing year-Before any transactions intended for the first day of any fishing year are actioned in respect of any fisher, the Registrar shall ensure that the following steps are taken: (a) First, any subdivision or amalgamation of a stock 20 management area pursuant to section 81 of this Act shall be given effect and the ratios to be used for apportioning the underfishing allowance shall be noted on the register: (b) Secondly, any necessary adjustments to the owner's quota 25 that arise from any variation of the total allowable commercial catch shall be made: (c) Thirdly, any annual catch entitlements pursuant to section 51 of this Act shall be issued.
Retrospective Balancing 30
61. Retrospective balancing-(1) This section applies to quota management stocks, but does not apply to stock to which the Second Schedule to this Act applies. (2) Where this section applies, any commercial fisher who takes fish during any catch period must, as at the balance date, 35 hold sufficient annual catch entitlement to equal or exceed the reported catch taken by the fisher during the fishing year as at that date. (3) The balancing date in respect of any stock and the catch period to which the balance date relates- 40 (a) May be specified in the notice under section 17 of this Act declaring that the stock is a quota management stock: Fisheries 49
(b) May be specified or varied by the Governor-General by Order in Council made on the recommendation of the Minister after consultation by the Minister with such persons or organisations as the Minister 5 considers are representative of holders of individual transferable quota or provisional individual transferable quota: (c) Shall,- (i) In the case of the catch period, be a period of 1 10 calendar month or such other period may be specified in the notice referred to in paragraph (a) of this subsection or in the order made under paragraph (b) of this subsection: (ii) In the case of the balancing date, be a date that 15 is 15 days after the close of the catch period to which it relates or such other date as may be specified in the notice referred to in paragraph (a) of this subsection or in the order made under paragraph (b) of this subsection. 20 (4) As at each balancing date, the amount of catch taken by a fisher during the fishing year as at the close of the catch period shall be compared to the sum of annual catch entitlements held by the fisher on the balancing date. Any amount of catch taken in excess of the sum of those annual catch entitlements, 25 excluding any catch for the year to date that has already incurred a deemed value demand, is subject to the provisions of section 62 of this Act.
62. Deemed values payable where catch exceeds annual catch entitlement-(1) Every fisher who takes any 30 amount of fish that is subject to this section shall be liable to pay on demand by the chief executive a sum to be called the deemed value ot the fish, which deemed value shall be calculated at the appropriate rate specified under subsection (2) of this section. 35 (2) The rate of the deemed value payable under this section in respect of any stock shall be specified from time to time by the Minister, by notice in the Gazette, in accordance with this section. (3) The purpose of a deemed value is to deter fishers from 40 failing to acquire sufficient annual catch entitlements to cover catch taken as at the balancing date. (4) Before specifying the rate of any deemed value under subsection (2) ot this section, the Minister shall- 50 Fisheries
(a) Where practicable, consult such persons or organisations as the Minister considers are representative of persons having an interest in the fishery; and (b) Have regard to- (i) The market value of the stock or species to 5 commercial fishers and licensed fish receivers; and (ii) The need to remove all the economic benefit to any person from the taking, processing, or sale of the stock; and (iii) The value of the annual catch entitlements for 10 the stock; and (iv) The use that is made of the deemed value mechanism. (5) A deemed value rate may be increased, but shall not be reduced, during any fishing year and shall take effect on and 15 from the date of the publication of the notice increasing the rate. (6) Nothing in this section requires the Minister to have regard to the personal circumstances of any class of fisher or any class of licensed fish receiver or any fisher or any licensed 20 fish receiver when considering whether or not to specify a deemed value or the rate of a deemed value. (7) All deemed values payable under this section shall be collected by the Ministry and paid into a Crown Bank Account. C£ 1983, No. 14, s. 28ZD; 1990, No. 29, s. 29 (1) 25
Annual Catch Entitlement Before Fishing Regime 68. Annual catch entitlement required before taking certain stocks-(1) No person shall take any stock specified in the Second Schedule to this Act except under the authority of an annual catch entitlement, and for Ehe purposes of this section, 30 taking under the authority of annual catch entitlements means taking- (a) In accordance with a fishing permit and any conditions and limitations imposed by or under this Act or any regulations or notice made or given under this Act; 35 and (b) At a time when that person holds an amount of unfished annual catch entitlement greater than or equal to the tonnage of fish so taken. (2) Notwithstanding subsection (1) of this section, a fisher may, 40 without further authority than a fishing permit, take fish of those stocks for the fisher's own use as bait. Fisheries 51
64. Excess to be counted against annual catch entitlement-Where a fisher- (a) Takes any fish of any stock specified in the Second Schedule to this Act in contravention of section 63 of 5 this Act; but (b) Subsequently acquires annual catch entitlements,- the annual catch entitlements so acquired shall be applied to the fisher's catch in such manner as may be specified for the purpose in regulations made under section 302 of this Act. 10 Cf. 1983, No. 14, s. 28zA (4); 1990, No. 29, s. 26 (1)
65. Fisher may be required to pay deemed value of excess or authorised fish-(1) Every fisher who takes any fish of any stock specified in the Second Schedule to this Act in contravention of section 63 of this Act- 15 (a) Shall, unless the sher has returned the stock to the sea where such a return is required by section 189 of this Act, include any stock so taken in the returns for the appropriate period required to be made by the fisher under this Act; and 20 (b) Shall, unless the fisher- (i) Has returned the stock to the sea in circumstances in which such a return is required by section 189 of this Act; or (ii) Holds an amount of annual catch entitlement in 25 the month in which the fish are taken equal to or exceeding the amount of fish so taken,- pay to the Crown, within 20 days of a demand being made, the deemed value of that flsh assessed by the chief executive in accordance with section 66 of this 30 Act. (2) Where any person transfers any annual catch entitlement in respect of any stock and the remaining annual catch entitlement held by the person in respect of the stock is less than the total amount of catch taken by the person during the 35 fishing year as at the date on which the transfer takes effect, the person- (a) Shall be deemed to have taken in contravention of section 63 of this Act an amount of fish equivalent to the difference between the amount of annual catch 40 entitlement that the person holds after such transfer and the amount of catch taken as at the date on which the transfer takes effect; and (b) Shall pay to the Crown, within 20 days of demand being made by notice in writing given by an employee of 52 Fisheries
the Ministry, the deemed value of the stock assessed by the chief executive in accordance with section 66 of this Act. (3) Any amount payable under subsection (1) or subsection (2) of this section shall be payable whether or not the fisher has 5 committed an offence in respect of the stock. (4) A demand under this section may be made at any time (whether during or after the end of the fishing year in which the stock is taken). (5) All deemed values payable under this section shall be 10 collected by the Ministry and paid into a Crown Bank Account. Cf. 1983, No. 14, s. 28zD (1), (2), (2A), (2c), (3); 1990, No. 29, s. 29 (1); 1992, No. 90, s. 11
66. Assessment of deemed value of stock-(1) The Minister shall assess the deemed value of fish for the purposes 15 sections 63 to 65 of this Act and may assess different deemed values for different stocks or the species to which the stock relates or on any other differential basis whatever. (2) The rate of the deemed value payable under this section in respect of any stock shall be specified from time to time by 20 the Minister, by notice in the Gazette, in accordance with this section. (3) In assessing the deemed value of any stock or species, the Minister- (a) May determine a rate that applies generally in respect of 25 any specified period to all cases within a specified class or classes: (b) Is not obliged - (i) To make the assessment by reference to the circumstances of any person liable to pay the deemed 30 value liability; or (ii) To determine separate deemed values in individual cases. (3) In assessing the rate of the deemed value of any stock or species, the Minister shall have regard to- 35 (a) The market value of the class or the species to which the stock relates to commercial fishers, licensed fish receivers, and consumers; and (b) Any proceeds or benefit likely to be received by the commercial flshers or other persons in respect of the 40 class or species of stock; ana (c) The removal from commercial fishers, licensed fish receivers, or associated persons of any economic incentive for the taking, processing, or sale of fish of Fisheries 53
the stock or the species to which the stock relates taken in contravention of section 63 of this Act; and (d) The need to provide an incentive for commercial fishers to land fish once they have been taken without 5 authority, particularly where such fish are dead or unlikely to survive if returned to the water. (4) For the purposes of making an assessment of the rate of any deemed value under this section, the Minister shall where practicable consult the Commission and the Seafood Industry 10 Board on-- (a) The appropriate deemed value, or guidelines for determining the appropriate deemed value, payable for any class or species of stock or class of fishers: (b) The circumstances in which it may be appropriate for a 15 different deemed value to be assessed in relation to any particular area or circumstances in which stock is taken. (5) Nothing in this section requires the Minister to have regard to the personal circumstances of any class of fisher, or 20 any plass of licensed fish receiver or any fisher or licensed fish receiver when considering whether or not to specify a deemed value rate. C£ 1983, No. 14, s. 28ZE; 1990, No. 29, s. 29 (1)
General Prouisions Relating to Deemed Values 25 67. Amount of deemed value to be returned to fisher where annual catch entitlement subsequently obtained- 1) The amount of any deemed value paid to the Crown by a hsher pursuant to section 62 or section 65 of this Act shall be held by the Crown on trust for the fisher until the trust ends in 30 accordance with this section or the amount of the deemed value is sooner remitted to the fisher. (2) A fisher is entitled (and need not make an application for the purpose) to a remission of the amount of any deemed value paid or payable by the fisher under section 62 or section 65 of this 35 Act in circumstances specified in regulations made under section 302 of this Act. Cf. 1983, No. 14, s. 28ZF; 1990, No. 29, s. 29 (1); 1992, No. 90, s. 12
68. Suspension of permit for non-payment of deemed 40 value-(1) If, at any time, the total deemed value liability of any fisher exceeds $1,000 for more than 20 days after being demanded, every permit, licence, or other authority held by 54 Fisheries the fisher under this Act shall be suspended for so long as that unpaid sum remains in excess of a $1,000. During the term of any such suspension, no person may lawfully take fish pursuant to any such permit, licence, or authority but otherwise shall comply with all the obligations of the permit, licence, or other 5 authority. (2) Where the sum of deemed value liability exceeds $1,000 and remains unpaid for 3 months after the date of the first demand or demands for payment, all permits, licences, or other authorities suspended as a result ot the non-payment of 10 the deemed value liability shall be deemed to be revoked. (3) The chief executive shall advise the fisher not less than 5 days before the permit, licence or other authority would be suspended or revoked due to non-payment of the outstanding deemed value and of the consequences of non-payment; but 15 the suspension or revocation shall not be invalid by reason only that the fisher has not received such advice or not received within the specified 5-day period. (4) Where any permit, licence, or other authority has been suspended or revoked under this section on the ground that the 20 holder has been deemed to be an associated person in relation to a person who had a deemed value liability exceeding $1,000 that was outstanding for more than 20 days, the holder may appeal against the suspension or revocation on the ground that the holder is not associated with that other person, and the 25 following provisions shall apply in relation to every such appeal: (a) The appeal shall be commenced by way of originating application under Part VI of the District Court Rules 1992: (b) The onus of proving that the appellant is not associated 30 with that other person shall be on the applicant: (c) The Court shall contirm whether or not the appellant is associated with that other person, and may make such orders as to the reinstatement of any permit, licence, or other authority as it thinks fit. 35
69. Caveat registered where non-payment of deemed value-(1) Where a hsher's total deemed value liability exceeds $1,000 and the fisher does not pay the amount in full within 20 days after a demand is made, the chief executive shall direct the Registrar to enter caveats in the appropriate 40 registers in respect of every individual transferable quota, provisional individual transferable quota, and annual catch entitlement held by the fisher and any person who is an associated person in relation to the fisher. Fisheries 55
(2) Every caveat under this section shall have effect as a caveat under section 128 of this Act. (3) The chief executive shall direct the Registrar to lift the caveat when the debt is paid in full. 5 (4) Where any caveat has been entered in respect of any individual transferable quota, provisional individual transferable quota, or annual catch entitlement under this section on the ground that the fisher concerned has been deemed to be an associated person in relation to a person who 10 had a deemed value liability exceeding $1,000 that was outstanding for more than 20 days, the fisher may appeal against the entering of the caveat on the ground that the hsher is not associated with that other person, and the following provisions shall apply in relation to every such appeal: 15 (a) The appeal shall be commenced by way oi originating application under Part VI of the District Court Rules 1992: (b) The onus of proving that the ap ellant is not associated with that other person shall Ee on the appellant: 20 (c) The Court shall contlrm whether or not the appellant is associated with that other person, and may make such orders as to the removal of any caveat as it thinks flt.
70. Liability for debt payable by company left with 25 insufficient assets-(1) This section applies where- (a) An arrangement to which section HK 11 of the Income Tax Act 1994 applies has been entered into in relation to a company; and (b) An effect of that arrangement is that the company is 30 unable to satisfy a liability under this Act to pay a deemed value, whether the penalty or deemed value liability exists at the time oi entry into the arrangement or arises subsequently; and (c) It can reasonably be concluded that- 35 (i) A director of the company at the time of entry into the arrangement who had made all reasonable inquiries into the affairs of the company would have anticipated at that time that the deemed value would be, or would be likely to be, required to be satisfied 40 by the company under this Act; and (ii) A purpose of the arrangement was to have the effect specihed in paragraph (b) of this subsection. (2) Where any arrangement to which this section applies has been entered into, all persons who were directors of the 56 Fisheries company at the time the arrangement was entered into shall, subject to subsection (4) of this section, be jointly and severally liable for the deemed value as agent of the company. (3) Where any arrangement to which this section applies has been entered into, any person who was- 5 (a) A controlling shareholder at the time the arrangement was entered mto; or (b) A Psrson who had a voting interest or market value interest in the company (calculated, in any case where the person is a company, as if the person were 10 not a company) at the time the arrangement was entered into, where it could be reasonably concluded, having regard to the materiality of the benefit derived by the person from the arrangement, that the person was a party to the arrangement,- 15 shall be liable as agent of the company for the deemed value to the extent that the deemed value does not exceed the greater of- (c) The market value of the person's direct and indirect shareholding in the company at the time of entry into 20 the arrangement; or (d) The value of any benefit derived by the person from the arrangement. (4) A director shall not be liable for any deemed value where the chief executive is satisfied that the director derived no 25 benefit from the arrangement and either- (a) The director has, at the first reasonable opportunity after becoming aware of the arrangement, or of those aspects of the arrangement that render it subject to this section,- 30 (i) Formally recorded with the company his or her dissent in relation to the arrangement; and (ii) Notied the chief executive in writing of the arrangement and of his or her dissent from that arrangement; or 35 (b) The director satisfies the chief executive that- (i) The director was not at the material time or times involved in the executive management of the company; and (ii) The director had no knowledge of the 40 arrangement, or of those aspects of the arrangement that render it subject to the application of this section. Fisheries 57
(5) Unless the context otherwise requires, terms used in this section and also used in section HK 11 of the Income Tax Act 1994 have the same meanings as they have in that section. Cf. 1976, No. 65, s. 276; 1992, No. 14, s. 34 (1)
5 71. Re-entry to fishery after suspension of permit under section 68-(1) Where a permit, licence, or other authority is deemed to be revoked by section 68 of this Act the holder may apply in writing to the chief executive for a new permit, licence, or other authority. 10 (2) Where the outstanding debt is paid in full to the Ministry, the chief executive shall grant a new permit, licence, or other authority, and, where the revocation occurred within the immediately preceding 2-year period, make the grant subject to such conditions as he or she considers necessary to ensure that 15 the holder will meet any future debts under this Part of this Act. (3) Without limiting the conditions the chief executive may impose under subsection (2) of this section, the chief executive may make the grant of the permit, licence, or other authority 20 conditional on the holder providing a bond or other security given by a person (hereafter in this section called the guarantor) approved by the chief executive. (4) The chief executive shall hold in trust every amount paid to the Ministry by the guarantor under a bond or other security 25 given in respect of any debt and shall apply the amount in satisfaction of the debt only once the permit, licence, or other authority concerned has been revoked for non-payment of the debt.
72. Provisions relating to associated persons-(1) At the 30 commencement of every fishing year, every fisher shall furnish to the chief executive a statutory declaration stating the full names and current addresses of every person who is an associated person in relation to the fisher. (2) As soon as practicable after any material change in any 35 information stated on a declaration furnished under subsection (1) of this section, the fisher shall furnish to the chief executive a statutory declaration stating the change. (3) Every transfer of individual transferable quota or annual catch entitlement shall be accompanied by a statutory 40 declaration stating that the transferor is not associated with any person who has not paid within 20 days after demand has been made a deemed value liability exceeding $ 1,000 under this Act; and no transfer of individual transferable quota or annual catch 58 Fisheries entitlement shall be registered if the transferor is associated with any person who has not paid a deemed value liability in excess of $1,000 within 20 days of a demand having been made. (4) For the purposes of this Act, every statutory declaration 5 furnished to the chief executive under this section shall, in the absence of proof to the contrary, be sufficient evidence of the facts stated in the declaration.
73. Authoritative balancing-(1) The Chief Executive shall, as soon as practicable, after the close of each month, 10 notify each fisher in writing of- (a) The total catch reported by the fisher for each of the catch periods applicable to the fisher in that month; and (b) The total catch reported by the fisher for the current 15 fishing year as at the close of that month; and (c) The total amount of annual catch entitlement held by the fisher as at the balance date or balance dates in respect of those catch periods for that month; and (d) Either- 20 (i) The amount of unfished annual catch entitlement (if any), held by the fisher as at the end of the balance date or balance dates in respect of those catch periods for that month; or (ii) The amount by which the fisher's catch exceeds 25 total annual catch entitlements held by that fisher at the end of the balance date or balance dates in respect of those catch periods for that month. (2) Any fisher who considers that any balance stated is incorrect may, within 14 days after receiving the notification or 30 within such further period as the chief executive may allow, object in writing to the balance and shall state the grounds for such objection; and the Chief Executive shall consider every objection so made and shall notify his or her decision to the fisher in writing as soon as practicable. 35 (3) If the basis of the objection is that the fisher has furnished incorrect figures in any return under this Act, the fisher shall furnish to the chief executive the correct figures on the appropriate return and the chief executive shall notify his or her decision to the fisher in writing as soon as practicable. 40 (4) Any fisher who is dissatisfied with any decision notified by the chief executive under subsection (2) or subsection (3) of this section may appeal against the decision to a District Court and the following provisions apply in relation to every such appeal: Fisheries 59
(a) The appeal shall be commenced by way of an originating application under Part VI of the District Court Rules 1992: (b) The appeal shall be made only on one or more of the 5 grounds for the time being specified by regulations made under section 302 of this Act as grounds for the review of a balance notified under those regulations: (c) The court shall confirm or amend the balance under appeal and may make such orders as to costs and 10 such other orders as it thinks fit. (5) The fact that an appeal has been lodged under this section does not affect any liability under this Act to pay any deemed value or any provision of this Act with respect to such a debt. (6) Every balance notified by the chief executive under this 15 section shall, except where a Court otherwise determines on appeal under subsection (4) of this section, be conclusively presumed for all purposes to be authoritative. (7) Notwithstanding subsection (6) of this section, where the chief executive considers any balance is incorrect as a result of 20 the provision of misleading information or the omission of material information or fraud, the Chief Executive shall notify the fisher of his or her intention to adjust the balance. The fisher may, within 14 dap of such notification, object to the proposed adjustment as iI it were a notification under subsection 25 (1) of this section. If the fisher does not object the Chief Executive shall make the adjustment which shall be deemed to be accepted by the fisher as conclusive for the purposes of this section. (8) Every balance notified to a fisher by the chief executive 30 for the purpose of establishing the fisher's opening quota balance as at the commencement of this Part of this Act shall, to the extent that the balance has been determined in accordance with the Fisheries (Catch Against Quota) Regulations 1993, be conclusively presumed for all purposes to 35 be authoritative.
74. Crown not liable for errors in quota balances- Neither the Crown nor any other person shall be liable to compensate any fisher or other person, or otherwise be guilty of a civil wrong, by reason only that any balance notified to the 40 fisher under section 73 of this Act contains any error or inaccuracy.
75. Minimum holdings of annual catch entitlement- (1) No fisher may take any fish unless the fisher holds an annual 60 Fisheries catch entitlement authorising the fisher to take within the year to which the annual catch entitlement relates- (a) In the case of finfish and southern scallops, not less than 5 tonnes in one or more stock management areas: (b) In the case of shellfish (other than southern scallops), not 5 less than 3 tonnes in one or more stock management
areas: (c) In the case of rock lobster, not less than 3 tonnes in one or more stock management areas. (2) If,- 10 (a) Following an amalgamation or subdivision of a stock management area under section 81 of this Act, the fisher is allocated or reallocated an amount of individual transferable quota or provisional individual transferable quota, or both, pursuant to section 82 of 15 this Act, and such individual transferable quota or provisional individual transferable quota does not generate sufficient annual catch entitlements to satisfy the requirements of this subsection (1) of this section; or 20 (b) Following a reduction in the total allowable commercial catch, the amount of individual transferable guota or provisional individual transferable quota held by the hsher at the beginning of the next fishing year does not generate sufflcient annual catch entitlements to 25 satisfy subsection (1) of this section,- then the fisher may continue to take stock in that fishing year under the authority of the lesser annual catch entitlement held by the fisher until the sher transfers any annual catch entitlement and thereby reduces the fisher's annual catch 30 entitlement holding to an amount lower than the holding generated by the fisher's quota at the time of the allocation of that entitlement. (3) The Governor-General may fom time to time, by Order in Council, increase or reduce any amount specified in subsection 35 (1) of this section. (4) For the purposes of this section, squid shall be regarded as fmfish. CE 1983, No. 14, s. 28s; 1991, No. 149, s. 15
76. Aggregation limits-(1) Notwithstanding the provisions 40 of this Act relating to the transfer of quota, no person shall be entitled to hold (by taking on transfer)- (a) More than 35 percent of the total of individual transferable quotas and provisional individual Fisheries 61
transferable quotas for any stock named in the Second Schedule to this Act for New Zealand fisheries waters: (b) More than 10 percent of the total of individual transferable quotas for spiny rock lobster (or other 5 stock declared pursuant to subsection (11) of this section to be subject to this paragraph) for any stock Inanagernent area: (c) More than 35 percent of the total of individual transferable quotas for packhorse rock lobster (or 10 other stock declared pursuant to subsection (11) of this section to be subject to this paragraph) for any stock Inanagennent area: (d) In any other case, more than 20 percent of the total of individual transferable quotas and provisional 15 individual transferable quotas for any stock for any stock management area. (2) Nothing in subsection (1) of this section applies to any person who, after a subdivision or combining or amalgamation of a stock management area pursuant to section 81 of this Act, is 20 allocated or reissued more than the permitted percentage of the total of individual transferable quotas and provisional individual transferable quotas in respect of any quota management area for any stock; but, except as may be permitted by any consent granted under subsection (5) ot this 25 section, no such person may acquire any more such quota. (3) Where any individual transferable quotas for any stock for any stock management area- (a) Have been transferred to a person; or (b) Have been acquired by a person, with the consent of the 30 Minister, in exchange for individual transferable quotas transferred to that person under that section,- nothing in subsection (1) of this section prevents that person from holding those individual transferable quotas; but nothing in this 35 subsection applies to any other quota or interest in quota acquired by any such person. (4) Notwithstanding subsection (1) of this section, the Minister may from time to time, after consultation with the Commission and the Seafood Industry Board, by notice in the Gazette. 40 consent to any named person holding,- (a) In any case to which paragraph (a) of subsection (1) of this section applies, not more than a specified percentage which is greater than 35 percent of the total of all individual transferable quotas and provisional 62 Fisheries
individual transferable quotas for any stock for any stock management area: (b) In any case to which paragraph (b) of that subsection applies, not more than a specified percentage which is Ereater than 10 percent of the total individual transferable 5 quotas tor spiny rock lobster for any stock management area: (c) In any case to which paragraph (d) of that subsection applies, not more than a specified percentage which is greater than 20 percent of the total individual transferable 10 guotas and provisional individual transferable quotas tor any stock for any stock management area. (5) Any consent under subsection (4) of this section may be given subject to such conditions as the Minister may impose, and may be given for any specified year or years or generally. 15 (6) The Minister shall, in considering whether or not to grant any consent under subsection (5) of this section, consider- (a) The willingness and ability of other members of the New Zealand fishing industry to acquire or hold the appropriate quota and take the stock concerned: 20 (b) The likely effect of the granting or withholding of the consent on- (i) The development of any new or existing stock: (ii) Other commercial fishers: (iii) The processing and marketing of that stock: 25 (iv) The ability of the applicant to take any other stock: (c) Such other matters as the Minister considers relevant. (8) The Minister shall not grant any consent under subsection (5) of this section in any case where quotas have been acquired 30 by any person in excess of the then permitted percentage of quotas before the consent is sought. (9) Where any person acquires any quota or interest in any quota in breach of this section or any consent given by the Minister under this section, the quota or the interest in the 35 quota so acquired shall, to the extent that the holding of it is in breach of this section, be forfeited to the Crown without compensation. (10) For the purposes of this section, the term "person" includes a person associated with that person. 40 (11) The Governor-General may, by Order in Council,- (a) Increase any percentage specified in subsection (1) of this section: Fisheries 63
(b) Declare that any specified stock (other than a stock specified in the paragraph concerned) is subject to any of paragraphs (a) to (d) of that subsection: (c) Amend the Second Schedule to this Act by adding the 5 name of any stock or omitting the name of any stock. CE 1983, No. 14, s. 28w; 1986, No. 34, s. 10; 1989, No. 159, s. 67; 1990, No. 29, s. 23; 1991, No. 149, s. 17; 1992, No. 122, s. 28
77. Quota not to be allocated to owners of licensed 10 foreign fishing vessel-(1) Sections 23 to 76 of this Act do not apply in respect of any person who is the owner of a foreign fishing vessel licensed under section 86 of this Act. (2) Where any person to whom subsection (1) of this section applies would be entitled to be allocated provisional catch 15 history if it were not for that subsection, that person's provisional catch history shall be cancelled. C£ 1983, No. 14, s. 28x; 1989, No. 159, s. 68; 1990, No. 29, s. 24
78. Quota not to be transferred or held in respect of 20 licensed foreign fishing vessel other than by Crown- (1) No person may transfer any individual transferable quota or any annual catch entitlement to the owner of a foreign fishing vessel. (2) Notwithstanding subsection (1) of this section, the Crown 25 may transfer annual catch entitlements held by it to permit the taking of fish by any foreign fishing vessel licensed under section 86 of this Act. Cf. 1983, No. 14, s. 28y; 1986, No. 34, s. 10; 1989, No. 159, s. 69
30 79. Quota or annual catch entitlement not to be allocated to overseas individuals or companies with overseas control-(1) This section applies to any person who,- (a) Being an individual, is a person who is not ordinarily 35 resident in New Zealand: (b) Being a body corporate, is wholly or significantly controlled from outside New Zealand. (2) For the purposes of subsection (1) (a) of this section, a person who is not otherwise ordinarily resident in New Zealand shall 40 be deemed to be ordinarily resident in New Zealand if- (a) The person has resided in New Zealand for not less than two and a half years during the period of 3 years 64 Fisheries
immediately preceding the date on which the matter is to be determined; and (b) The Minister is satisfied that the person is likely to continue to reside permanently in New Zealand. (3) For the purposes of subsection (1) (b) of this section, a body 5 corporate shall be deemed to be wholly or significantly controlled from outside New Zealand if 25 percent or more of the voting power in relation to the body corporate- (a) Is held or may be exercised by or on behalf of one or more individuals who are not ordinarily resident in 10 New Zealand; or (b) Is held by a bod or bodies corporate of which 25 percent or more or the voting power is held or may be exercised by or on behalf of an individual or individuals who is or are not ordinarily resident in 15 New Zealand or a body or bodies corporate that, by virtue of this provision, is or are wholly or significantly controlled from outside New Zealand, or a combination of such individuals and bodies corporate. 20 (4) The Minister may, by notice in the Gazette, declare that for the purposes of this section, any company whose shares are listed on the New Zealand Stock Exchange is not wholly or significantly controlled from outside New Zealand. (5) Except as provided in subsection (7) of this section, sections 25 23 to 76 of this Act do not apply in respect of any person to whom this section applies. (6) Where any person would be entitled to receive provisional catch history, but for subsection (5) of this section, that provisional catch history shall be cancelled. 30 (7) Where any person is allocated a provisional individual transferable quota or provisional catch history becomes a person to whom this section applies, the person may continue to hold the provisional individual transferable quota or provisional catch history until the person is allocated, as the 35 case may require, an individual transferable quota or a catch history, and subsection (8) of this section shall then apply. (8) Where any person who is the holder of an individual transferable quota or interest in such a quota becomes a person to whom this section applies, that person shall, unless an 40 appfopriate declaration is made under subsection (4) of this section, or permission is granted under section 80 of this Act, dispose of the quota or interest in the quota within 3 months or such greater period as the chief executive may permit. F8heries 65
(9) No person shall transfer any provisional catch history, individual transferable quota, or annual catch entitlement to any person to whom this section applies other than in accordance with any permission granted under section 80 of this 5 Act. (10) Where any person to whom this section applies holds any individual transferable quota or any interest in any such quota or annual catch entitlement that is not permitted under this section or section 80 of this Act, the quota or interest or 10 entitlement shall be forfeited to the Crown without compensation. Cf. 1983, No. 14, s. 28z (1)-(8), (10), (11); 1986, No. 34, s. 10; 1989, No. 159, s. 70; 1990, No. 29, s. 25
80. Chief executive may permit acquisition or 15 continued holding of quota by persons to whom section 79 applies-(1) The chief executive may, subject to such conditions as the chief executive considers appropriate, permit the acquisition or continued holding of individual transterable quota or interests in individual transferable quota by any 20 person referred to in subsection (2) of this section if the chief executive believes that significant net economic benefit to New Zealand will accrlie as a result in the form of one or more of the following: (a) Added market competition, greater efficiency or 25 productivity, and enhanced domestic services: (b) The introduction of new technology or business skills: (c) The development of new export markets or increased export market access:
30 existing(d) The creation jobs thatof new wou job o ortunitiesotherwise or be the lost: retention of (e) The introduction of additional investment for development purposes: (f) Increased investment in processing within New Zealand. (2) Any permission may be granted under subsection (1) of this 35 section to- (a) A registered bank within the meaning of section 2 (1) of the Reserve Bank Act 1989; or (b) A company listed in the Schedule to the Overseas Investment Exemption Notice 1990; or 40 (c) Any other body corporate- to whom section 79 of this Act applies. (3) Permission shall not be granted under subsection (1) of this section to a body corporate (other than a body corporate referred to in paragraph (a) or paragraph (b) of subsection (2) of this 66 Fisheries
section) of which 40 percent or more Of the votmg power is held or may be exercised by or on behalf of an individual or individuals who is or are not ordinarily resident in New Zealand or a body or bodies corporate that, by virtue of section 2 (2) (b) of this Act, is or are wholly or significantly controlled from outside 5 New Zealand, or a combination of such individuals and bodies corporate. Cf. 1983, No. 14, s. 28z (9); 1986, No. 34, s. 10; 1989, No. 159, s. 70
Subdivision and Aggregation qf Stock Management Areas 10 81. Subdivision and amalgamation of stock management areas-(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, alter any stock management area for any stock- 15 (a) By dividing the area into smaller stock management areas specified in the order; or (b) By combining 2 or more specified areas within the stock management area and specifying the new area; or (c) By amalgamating 2 or more stock management areas; or 20 (d) By amalgamating any stock management area or specified area within any stock management area with any adjoining stock management area or specified area or areas within any adjoining stock management area; or 25 (e) By doing any combination of those things. (2) Before recommending the alteration of any stock management area for any stock under subsection (1) of this section, the Minister- (a) Shall have regard to- 30 (i) The harvesting and other activities of non- commercial flshers in the affected area; and (ii) The biological characteristics of the stock; and (iii) Such other matters as the Minister considers relevant; and 35 (b) Shall consult the Commission, the Seafood Industry Board, and such other persons and organisations as the Minister considers are representative of persons having an interest in the fishery concerned. (3) The Minister shall not recommend the subdivision or 40 amalgamation of any stock management area under subsection (1) of this section unless he or she is satisfied that the alteration and the consequent reallocation of quota amongst all affected Fisheries 67
quota holders is supported by the quota holders who hold in the aggregate not less than 75,000,000 shares for each of the stock or stocks for the area or areas being altered. (4) The Minister is not obliged to recommend the subdivision 5 or amalgamation of any stock management area under subsection (1) of this section in any case if, having regard to any arrangements entered into between quota holders for the purpose of providing relief to aggrieved quota holders, he or she is satisfied that the alteration would unduly prejudice quota 10 holders who are opposed to the alteration. (5) Every Order in Council made under subsection (1) of this section shall come into force on the commencement of the fishing year specified in the order, which fishing year shall not be earlier than the fishing year that immediately follows the 15 fishing year in which the order is made.
82. Effect on quota where stock management area subdivided-(1) This section applies where any quota management area is subdivided or combined or amalgamated under section 81 of this Act. 20 (2) There shall be reallocated to every person who, immediately before the subdivision or combining or amalgamation takes effect, owns quota for stock in the area or areas concerned quota in accordance with the agreement to subdivide or combine or amalgamate the area or areas. 25 (3) Any underfishing entitlement shall be apportioned in the same manner as quota as provided in subsection (2) of this section. (4) The Minister shall notify such reallocations of quota not less than 3 months before the date on which they take effect by 30 notice in the Gazette. (5) With the agreement of all quota holders for the stock for the area, the Minister may reallocate quota in such manner as may be agreed by the quota holders and specified by notice in the Gazette.
35 PART IV
FOREIGN LICENSED ACCESS
83. Calculation of allowable catch by foreign fishing craft-(1) The Minister shall fom time to time determine, in respect of the total allowable catch for every stock, the portion 40 that is able to be taken within the exclusive economic zone and the amount of that portion that New Zealand fishing vessels have the capacity to harvest. 68 Fisheries
(2) Where the Minister has determined, in respect of the portion of total allowable catch for a stock that is able to be taken within the exclusive economic zone, the amount of that portion that New Zealand fishing vessels have the capacity to harvest within the zone, the remaining amount shall constitute 5 the allowable catch for that stock for foreign fishing vessels. (3) Nothing in this section shall prevent the Minister from setting an allowable catch for any stock not within the quota management system whether or not a total allowable catch has been set for that stock. 10 (4) Nothing in this section or in section 86 (2) of this Act shall prevent the Minister from granting a licence pursuant to section 86 of this Act in respect of any highly migratory species, whether or not a total allowable catch or an allowable catch has been set in respect of that species. 15 C£ 1977, No. 28, s. 12
84. Apportionment of allowable catch for foreign fishing vessels-(1) The Minister may from time to time apportion, arnon countries other than New Zealand, the allowable catch ior foreign fishing vessels in respect of any 20 fishery within the exclusive economic zone, as determined under section 83 of this Act. (2) In making an apportionment under subsection (1) of this section, the Minister may have regard to- (a) Whether the fishing vessels of countries to which the 25 apportionment applies have engaged habitually in fishing within the exclusive economic zone: (b) Whether such countries have co-operated with New Zealand in fisheries research and in the identification of fsh stocks within the zone: 30 (c) Whether such countries have co-operated with New Zealand in the sustainable utilisation of fisheries resources within the zone, and in the enforcement of New Zealand law relating to such resources: (d) The terms of any relevant international agreement: 35 (e) Such other matters as the Minister, after consultation with the Minister of Foreign Affairs and Trade, determines to be relevant.
Cf. 1977, No. 28, s. 13
85. Proliibition of operation of unauthorised foreign 40 fishing vessels in zone-No foreign fishing vessel shall be used for fishing within the exclusive economic zone except in Fisheries 69
accordance with a licence issued by the Minister under section 86 of this Act in respect of that vessel. Cf. 1977, No. 28, s. 14
86. Grant of licences-(1) Subject to subsection (2) of this 5 section, the Minister may grant and issue to the owner of any named foreign fishing vessel a licence to ftsh within the exclusive economic zone. (2) The Minister shall exercise the powers conferred on the Minister by this section in such a manner as to ensure that- 10 (a) The catch that all foreign fishing vessels licensed under this section are for the time being authorised to harvest from any stock within the exclusive economic zone does not exceed the allowable catch for foreign fishing vessels as determined under section 83 of this 15 Act; and (b) The catch that all foreign fishing vessels of a particular country licensed under this section are for the time being authorised to harvest from any fishery within the zone does not exceed the apportionment made 20 under section 84 of this Act for that fishery in respect of that country. (3) In granting a licence under this section, the Minister may attach to the licence conditions relating to all or any of the following matters: 25 (a) The areas within the exclusive economic zone in which fishing is authorised: (b) The seasons, times, and particular voyages during which fishing is authorised: (c) The species, size, age, and quantities of fish that may be 30 taken: (d) The methods by which fish may be taken: (e) The types, size, and amount of fishing gear that may be used or carried by a foreign fishing vessel, and the modes of storage of that gear when not in use: 35 (f) The use, transfer, transhipment, landing, and processing of fsh taken: (g) Entry by the foreign fishing vessel to New Zealand ports, whether for the inspection of its catch or for other purposes: 40 (h) The compensation payable to New Zealand citizens or to the Crown in the event of any loss or damage caused by the foreign fishing vessel to other fishing vessels, or their gear or catch, or to fish, or to pipelines or cables, or to other New Zealand interests: 70 Fisheries
(i) Statistical and other mformation required to be given by the foreign fishing vessel to the Ministry, including statistics relating to catch and effort and reports as to the positions of the vessel: (j) The conduct by foreign fishing vessels of specified 5 programmes of fisheries research: (k) The training of New Zealand personnel in the methods of fishin employed by foreign fishing vessels and the transter to New Zealand of technology relating to fisheries: 10 (1)The display on board the foreign fishing vessel of the licence issued in respect of it: (rn) The marking of the toreign fishing vessel, and other means for its identification: (n) Directions, instructions, and other requirements given or 15 made by vessels or aircraft of the New Zealand Defence Force or other New Zealand Government ships or aircraft to the foreign fishing vessel that shall be complied with by the vessel: (o) The placing of New Zealand observers on the foreign 20 fishing vessel and the reimbursement to the Ministry by the licensee of the costs of doing so: (p) The installation on the foreign fishing vessel and maintenance in working order of a transponder or other equipment for the identification and location of 25 the vessel, and of adeluate nav*ational equipment to enable its position to De fixed Irom the vessel: (q) The carriage on board the foreign fishing vessel of specified nautical charts, nautical publications, and nautical instruments: 30 (r) Such other matters as the Minister considers necessary or expedient for the sustainable utilisation of fisheries resources within the zone.
Cf. 1977, No. 28, s. 15
87. Renewal of licences-Subject to section 86 (2) of this 35 Act, the Minister may from time to time renew any licence granted under section 86 of this Act. Cf. 1977, No. 28, s. 16
88. Variation of licences-(1) Subject to section 86 (2) of this Act, the Minister may from time to time, where he or she is 40 satisfied that it is necessary or expedient for the proper regulation of fishing within the exclusive economic zone to do Fisheries 71
so, vary the terms and conditions of any licence or licences, or class or classes of licence, granted under section 86 of this Act. (2) Notice of every variation of any licence under this section shall be given as soon as practicable to the licensee. 5 Cf. 1977, No. 28, s. 17
89. Fees and royalties-There shall, in respect of the granting and renewal of any licence under this Part of this Act, the use of any fishing vessel in the exclusive economic zone pursuant to a licence under this Part of this Act, or the taking of 10 any fish within the zone pursuant to such a licence, be payable to the Crown in such manner as may from time to time be prescribed such fee or royalty as may be so prescribed. C£ 1977, No. 28, s. 18; 1980, No. 146, s. 2 (1)
90. Licensing ofFences-(1) Where any foreign fishing 15 vessel that is not licensed under section 86 of this Act is used for fishing in the exclusive economic zone, the owner, the master, and every crew member of the vessel each commits an offence. (2) Where any foreign fishing vessel that is not licensed under section 86 of this Act displays within New Zealand fisheries 20 waters any marking or other means of identification that indicates that it is licensed under that section, the owner, the master, and every crew member of the vessel each commits an offence. (3) Where any foreign fishing vessel is used for fishing in the 25 exclusive economic zone in contravention of any condition of a licence issued in respect of it under section 86 of this Act, the licensee, the master, and every crew member of the vessel each commits an offence. (4) Every owner of a foreign fishing vessel who commits an 30 offence against subsection (1) or subsection (2) of this section is liable to a fine not exceeding $250,000. (5) Every crew member of a foreign fishing vessel who commits an offence against subsection (1) or subsection (2) of this section is liable to a fme not exceeding $5,000. 35 (6) Every licensee or master of a foreign fishing vessel who commits an offence against subsection (3) of this section is liable to a fine not exceeding $ 100,000. (7) Every crew member of a foreign fishing vessel who commits an ofTence against subsection (3) of this section is liable 40 to a fine not exceeding $1,500. (8) In this section, "crew member" does not include a licensee, owner, or master of a foreign fishing vessel, or any New Zealand personnel or New Zealand observer on the vessel 72 Fisheries pursuant to a condition attached to a licence under section 86 (3) of this Act. Cf. 1977, No. 28, s. 19
91. Suspension and cancellation of licences-(1) Where the Minister is satisfied that- 5 (a) Any foreign fishing vessel in respect of which a licence has been granted under section 86 of this Act is being or has been used for fishing within the exclusive economic zone in contravention of any condition of the licence or of any New Zealand law that applies to 10 fishing within the zone; or (b) Any licensee, master, or crew member of a foreign fishing vessel has been convicted of an offence against this Act, or against any regulations made under this Act, or against any other New Zealand law relating to 15 fishing within the zone; or (c) Any licensee, master, or crew member of a foreign fishing vessel has failed to pay to the Crown, within the time limit specified in section 97 (8) of this Act, the amount of any penalty imposed on that person under that 20 section by the Minister- the Minister may suspend the licence of the vessel for such period as he or she shall specify, or cancel the licence. (2) Where the Minister, after consultation with the Minister of Foreign Affairs and Trade, determines that it is necessary or 25 expedient for the proper regulation of fishing within the exclusive economic zone to do so, he or she may suspend any such licence or licences, or class or classes of such licence for such period as he or she shall specify, or cancel any licence or licences, or class or classes of licence. 30 (3) While a licence is suspended under this section, it shall have no effect. Cf. 1977, No. 28, s. 20
92. Review by Courts-No exercise by the Minister of any power conferred on the Minister by section 88 or section 91 (2) of 35 this Act shall be liable to be challenged, reviewed, quashed, or called into question in any Court on the ground that the conditions for the exercise of the power by him or her had not arisen or had ceased. Cf. 1977, No. 28, s. 21 40
98. Regulations-(1) Without limiting the generality of section 302 of this section, the Governor-General may from time Fisheries 73
to time, by Order in Council, make regulations for all or any of the following purposes: (a) Prescribing the manner of app}ying for licences under section 86 of this Act, and tor the renewal of such 5 licences under section 87 of this Act, and the forms of applications: (b) Prescribing the terms of duration of such licences: (c) Prescribing the forms of such licences: (d) Prescribing the fees and royalties payable to the Crown 10 and their method of payment; and prescribing the circumstances in which any such fee or royalty or any part thereof may be refunded: (e) Providing for the production of such licences by licensees to specified New Zealand authorities when required 15 to do so, and the inspection of licences by such authorities: (fj Requiring applicants for licences, and licensees, to designate authorised agents in New Zealand in respect of foreign fishing vessels: 20 (g) Providing for such other measures as are necessary or expedient to ensure that foreign fishing vessels are used for fishing within the exclusive economic zone only in accordance with the terms and conditions of their licences: 25 (h) Prescribing conditions, not inconsistent with this Part of this Act, under which fishing may be undertaken within the zone by foreign fishing vessels: (i) Prescribing measures, not inconsistent with this Part of this Act, for the sustainable utilisation of fisheries 30 resources and the aquatic environment within the
zone: (j) Specifying particular types of highly migratory stock, and regulating, in a manner not inconsistent with this Part of this Act, fishing for that stock within the zone, and 35 also, in the case of New Zealand fishing vessels, beyond the zone: (k) Providing that a breach of any such regulation shall be a criminal offence, and imposing penalties by way of fine not exceeding, in the case of a licensee, owner, or 40 master of a fishing vessel, $ 100,000 for any such offences and, in the case of any other crew member, $5,000 for any such offences: (1) Prescribing the form of bonds for the purposes of section 96 of this Act: 74 Fisheries
(m) Prescribing forms of notices and procedures to be followed for the purposes of section 97 of this Act: (n) Providing, in respect of notices, summonses, and other documents to be served under this Part of this Act or
in any civil proceedings under this Part of this Act, 5 that specified methods of service (including service on the authorised agent of a foreign fishing vessel or on the diplomatic or consular representative in respect of New Zealand of the country in which the vessel is registered) shall be deemed to be service on any 10 licensee, owner, master, or crew member of the vessel, and providing that specified methods of service shall be deemed to be sufficient proof of
service. (2) Regulations made under this section may make different 15 provisions for different parts of the exclusive economic zone and for different stock. (3) In prescribing fees in regulations made under this section, the Governor-General in Council may- (a) Take into account the cost of implementing the provisions 20 of this Part of this Act and of other Parts of this Act with respect to hshing by foreign fishing vessels within the exclusive economic zone, including the cost of the sustainable utilisation of fisheries resources and the atuatic environment, and of fisheries research, 25 and ot the administration and enforcement of such enactments; and (b) Prescribe different fees for different classes of foreign fishing vessels (whether by reference to size, catch, method of fishing, function, or otherwise). 30 Cf. 1977, No. 28, s. 22; 1980, No. 146, s. 2 (2)
94. Fishing for research, experimental, and sporting purposes-Notwithstanding section 85 or section 90 of this Act, a toreign fishing vessel may be used for fishing within the exclusive economic zone for the purpose of fisheries research or 35 of experimentation or sport, subject always to the prior consent in writing of the Minister to such activity and in accordance with such conditions (if any) as the Minister may impose in giving his or her consent. C£ 1977, No. 28, s. 23 40
95. Apprehension of offenders-(1) Where any foreign fishing vessel is seized pursuant to this Act, it shall be held in the custody of the Crown until- Fisheries 75
(a) A decision is made not to lay any information or charge in respect of the alleged offence for which the vessel was seized; and (b) Where such an information and charge is laid, the 5 security required by section 96 of this Act is given in respect of the vessel. (2) The decision whether or not to lay an information or charge in respect of an alleged offence for which a foreign fishing vessel is seized pursuant to this Act shall be made as 10 soon as reasonably practicable after the vessel is seized. (3) The release of a foreign fishing vessel from detention shall not affect any subsequent forfeiture of the vessel in respect of the conviction of any person for an offence. (4) On the conviction of any licensee, owner, or master of a 15 foreign fishing vessel for an offence against this Act or any regulations made under this Act, the vessel shall be forfeited to the Crown, and shall be disposed of in such manner as the Minister shall order, in addition to any fine that may be imposed by any Court on the convicted person. 20 (5) Where any fsh on a foreign fishing vessel is seized pursuant to this Act, it shall be held in the custody of the Crown (either on board the foreign fishing vessel from which it was seized or in such other place as the Minister may direct) until- 25 (a) A decision is made not to lay any information or charge in respect of the alleged offence for which the fish was seized; and (b) Where such an information and charge is laid, the security required by section 96 of this Act is given in 30 respect of the stock. (6) The release of any fish seized pursuant to this section shall not afTect any subsequent forfeiture of the fish on the conviction of any person for an offence. (7) The Crown shall not be liable to any person for any 35 deterioration in the quality of any fish seized pursuant to this section, whether such deterioration is caused by the negligence of the Crown or otherwise. (8) On the conviction of any person for an offence referred to in subsection (4) of this section, the fish seized shall be forfeited to 40 the Crown and shall be disposed of in such manner as the Minister shall order, in addition to any fule that may be imposed by any Court on the convicted person. (9) Where any foreign fishing vessel or fish is held in the custody of the Crown under this section, then on the conviction 45 of any person for any offence referred to in subsection (4) of this 76 Fisheries section in respect of the vessel or fish, as the case may be, the costs of the Crown in holding it in custody under this section shall be a debt due to the Crown jointly and severally by each of the following, namely, the licensee, the owner, and the master of the vessel, and shall be recoverable accordingly by 5 the Crown in any Court of competent jurisdiction. (10) Without limiting any other manner of recovering any debt due to the Crown under subsection (9) of this section, on the conviction of the licensee, the owner, and the master of any foreign fishing vessel for any offence referred to in that 10 subsection, the Court by which that person is convicted may make an order that the person pay to the Crown any costs for which the person is liable under that subsection. (11) Subject to subsection (7) of this section, but notwithstanding any other provision of this section, where any 15 foreign fishing vessel has been seized pursuant to this section, then on the acquittal of every person who is charged with any offence for which the vessel or fish, as the case may be, is subject to forfeiture under this section, the vessel or fish, as the case may require, shall forthwith be released from the custody 20 of the Crown. Cf. 1977, No. 28, s. 24
96. Security for release of foreign fishing vessels- (1) Where any foreign fishing vessel is seized pursuant to this Act, and an information or charge is laid against the licensee, 25 owner, or master of the vessel in respect of the offence for which the vessel has been seized, the licensee, owner, or master of the vessel may at any time before the determination of the information or charge apply to the Court by which the information or charge will be determined for the release of the 30 vessel on the provision of security in accordance with this section. (2) On hearing the application, the Court shall order the release of the foreign fishing vessel on the execution by any suitable person or persons approved by the Court for the 35 purpose, of a bond in favour of Her Majesty the Queen, in the prescribed form and conditioned in accordance with subsection (4) of this section, in an amount not less than the aggregate of the value of the vessel, the costs that the Crown may recover under section 95 (10) of this Act if the defendant is convicted of 40 the offence, and the maximum fine to which the defendant will be liable if convicted of the offence. (3) Notwithstanding subsection (2) of this section, the Court may, where it is satished that there are special circumstances to Fisheries 77
justify it in doing so, order that the bond shall be in a specified amount that is less than the amount required by that subsection. (4) The condition of the bond shall be that if- 5 (a) The defendant is found not guilty of the information or charge; or (b) The defendant on being convicted of the information or charge pays in full within 14 days after the defendant is convicted the amount of the fine imposed by the 10 Court, and the amount of all costs due by the defendant to the Crown under section 95 (9) of this Act, and the foreign fishing vessel is within that time surrendered to the Crown for forfeiture- then the bond shall be of no effect, but that otherwise the bond 15 shall remain in full force and effect. (5) The amount specified in the bond shall be recoverable in full, in any Court of competent jurisdiction, as a debt due to Her Majesty the Queen jointly and severally by the person or persons by whom the bond is given, unless the person or 20 persons prove the due performance of the condition on which the bond is defeasible. (6) In this section, "foreign fishing vessel" includes- (a) All equipment on board or used by the vessel; and (b) All fish that has been seized from the vessel pursuant to 25 this Act and is held on board the vessel in the custody of the Crown under that section. Cf. 1977, No. 28, s. 25
97. Administrative penalties for minor fisheries offences-(1) Where the Minister has reasonable cause to 30 believe that-- (a) An offence against this Act, or against any regulations made under this Act, or against any other New Zealand law, relating to fishing within the exclusive economic zone, maj have been committed by any 35 person in respect ot any foreign fishing vessel; and (b) Having regard to all the circumstances relating to the alleged offence it is of a minor nature, and having regard to the previous conduct of the vessel and of the person concerned in New Zealand fisheries 40 waters, it would be appropriate to impose a penalty under this section- he or she may cause a notice in writing in accordance with subsection (2) of this section, and otherwise in the prescribed form, to be served on that person. 78 Fisheries
(2) A notice under subsection (1) of this section shall specify- (a) The date and nature of the offence; and (b) A summary of the facts on which the allegation that an offence has been committed is based Ibeing a summary sufficient to fully and fairly inform the 5 person of the allegation against the person); and (c) Any other matters (not being previous convictions) that the Minister considers relevant to the imposition of a penalty- and shall be endorsed with a statement setting out the 10 provisions of this section. (3) Any person on whom a notice under subsection (1) of this section is served may, within 28 days after the notice is served on the person, by a notice in writing in the prescribed form served on the chief executive require that any proceedings in 15 respect of the alleged offence shall be dealt with before a Court, in which case the following provisions shall apply: (a) No further proceedings shall be taken under this section by the Minister: (b) Nothing in this section shall be construed to prevent the 20 subsequent laying of any information or charge in respect of the alleged offence, or the conviction of the person of the offence by a Court, or the imposition of any penalty under any enactment or forfeiture under this Act on such a conviction. 25 (4) Any person on whom a notice under subsection (1) of this section is served, who does not require that any proceedings in respect of the alleged offence shall be dealt with before a Court, may by notice in writing served on the chief executive- (a) Admit the offence; and 30 (b) In any case make submissions to the Minister as to the matters the person wishes the Minister to take into account in imposing any penalty under this section. (5) Where a person on whom a notice under subsection (1) of this section is served does not, within 28 days after the notice is 35 served on him,- (a) Require that any proceedings in respect of the alleged offence shall be dealt with before a Court; or (b) Admit the offence- he shall on the expiration of that period be deemed to have 40 admitted the offence. (6) Where under this section a person admits or is deemed to have admitted an offence, the Minister may, after taking into account any submissions made by that person under subsection (4) of this section, impose a monetary penalty on the person in 45 Fisheries 79
respect of the offence, not exceeding one-third of the maximum monetary penalty to which the person would be liable if the person were convicted of the offence by a Court. (7) Where the Minister imposes a penalty on a person under 5 this section in respect of an offence, the Minister shall cause a notice in writing in the prescribed form of the particulars of the penalty to be served on the person. (8) A person on whom a penalty is imposed under this section shall pay the amount of the penalty to the Crown within 28 10 days after the notice of the penalty is served on the person in accordance with subsection (7) of this section. (9) Without prejudice to the requirements of subsection (8) of this section, or to section 91 (1) of this Act, a penalty that has been imposed under this section shall be recoverable by the 15 Crown, irom the person on whom it has been imposed, in the same manner as a fine is recoverable on summary conviction for any offence. (10) Notwithstanding the provisions of sections 90,93,95, and 96 of this Act, or of any otner enactment, where any offence 20 has been admitted under this section, no information or charge may be laid in respect of the offence against the person by whom it is admitted. (11) This section does not apply- (a) In respect of any offence or alleged offence under 25 subsection (1) or subsection (2) of section 90 of this Act; or (b) In respect of any offence or alleged offence in respect of which any information or charge has been laid. Cf. 1977, No. 28, s. 26
98. General provisions as to offences in zone-(1) Any 30 offence against this Part of this Act, or any regulations made under this Part of this Act, that is committed within the exclusive economic zone shall be deemed to have been committed in New Zealand. (2) Where any licensee, owner, master, or crew member of a 35 foreign fishing vessel is charged with any offence specified in section 90 of this Act or in any regulations made under section 93 of this Act, in respect of any activitz described in paragraph (b) of the definition of the term "fishing' in section 2 (1) of this Act, it shall be a defence to a charge if the defendant proves that such 40 activity related only to fish taken beyond the outer limits of the exclusive economic zone. (3) Where any power of apprehension of any person, or of stopping, boarding, or searching any shing vessel, or of inspecting, seizing, or detaining any fishing vessel or stock, is 80 Fisheries conferred on any person under this Part of this Act, that power may be exercised with or without a warrant. C£ 1977, No. 28, s. 28
99. Onus of proof in respect of ofrences-In any criminal proceedings under this Act where a defendant is 5 charBed with having committed an offence specified in section 90 oi this Act, or with having contravened any other provision in any regulations made under this Act under which a licence or permit, or the consent of any person is required for the doing of any act, the onus shall be on the defendant to prove 10 that at the time to which the charge relates, the requisite licence, permit, or consent was duly held. Cf. 1977, No. 28, s. 32
100. Certificates as evidence-(1) Subject to subsection (2) of this section, in any proceedings for an offence against this Part 15 of this Act or any regulations made under section 93 of this Act, any certificate purporting to be signed by any member of the Defence Force (as defined in section 2(1) of the Defence Act 1990) and- (a) Stating the position of any foreign fishing vessel at any 20 date and time specified in the certificate; or (b) Stating that the member is satisfied that the equip ment used to determine the position of any foreign fishing vessel was in proper working order and that the equipment was accurate within specifications detailed 25 in the certificate; or (c) Stating both the matters referred to in paragraph (a) and the matters referred to in paragraph (b) of this subsection- shall be sufficient evidence of the facts stated until the contrary is proved. 30 (2) A certificate referred to in subsection (1) of this section shall be admissible in evidence only if- (a) At least 28 days before the hearing at which the certificate is tendered, a copy of that certificate is served, by or on behalf of the prosecutor, on the defendant or the 35 defendant's agent or counsel, and that person is, at the same time, informed in writing that the prosecutor does not propose to call the person who signed the certificate as a witness at the hearing; and (b) The Court has not, on the application of the defendant 40 made not less than 14 days before the hearing, ordered, not less than 7 days before the hearing or such lesser period as the Court in the special Fisheries 81
circumstances of the case thinks fit, that the certificate should not be admissible as evidence in the proceedings. (3) The Court shall not make an order under subsection (2) of 5 this section, unless it is satisfied that there is a reasonable doubt as to the accuracy or validity of the certificate. Cf. 1977, No. 28, s. 32A; 1985, No. 192, s. 2
PART V
ACCESS
10 101. Fishing without appropriate permit prohibited- (1) Subject to section 102 of this Act, no person shall take any fish except pursuant to and in accordance with- (a) A fishing permit; or (b) A special permit; or 15 (c) A foreign fishing vessel licence; or (d) A freshwater fish farming licence; or (e) Any other authority- that is current and has been issued by the chief executive under this Act or continued by this Act. 20 (2) Where it is permissible to take any fish without an authority referred to in subsection (1) of this section, any person taking such fish must comply with any applicable requirements under this Act (including requirements relating to the size of fish that may be taken, the number of fish that may be taken, 25 and the method of taking). CE 1983, No. 14, s. 62 (1); 1986, No. 34, s. 13 (1)
Fishing Pennitj 102. Exceptions to requirement to hold appropriate fishing permit-Section 101 of this Act does not apply where- 30 (a) Fish is taken for subsistence or personal use only, not being for the purpose of sale or for use in a commercial undertaking; or (b) Fish is taken for Maori customary non-commercial use in accordance with regulations made under section 188 of 35 this Act; or (c) Whitebait is taken for any purpose; or (d) Seaweed of the class Rhodophyceae is taken while it is unattached and cast ashore; or (e) Fishing is undertaken pursuant to and in accordance with 40 a notice given under section 3 (3) of the Marine Reserves Act 1971; or 82 Fisheries
(f) Samples of fish are taken pursuant to section 20 of the Food Act 1981 by an officer as defined in that Act; or (g) Samples of fish are taken pursuant to section 6 of the Meat Act 1981 by an inspector as defined in that Act; or 5 (h) Fish is taken pursuant to a special permit. Cf. 1983, No. 14, s. 62 (2); 1986, No. 34, s. 13 (1)
103. Application for fishing permit-(1) Applications for a fishing permit- (a) May be made by any person: 10 (b) Shall be made to the chief executive on an approved form: (c) Shall be supported by such evidence or information as may be specified by the form: (d) Shall be accompanied by the prescribed fee (if any): 15 (e) Shall be accompanied by a statutory declaration specifying the names and addresses of all persons who are associated persons in relation to the applicant and that neither the applicant nor any such associated person owes the Crown an amount of 20 deemed values exceeding $1,000 which amount has been outstanding more than 20 days after the date of demand for paynnent. (2) For the purposes of subsection (1) (c) of this section, the chief executive may require applicants to provide such evidence or 25 information as he or she considers necessary for the purpose of the Act, including information relating to- (a) The vessel to be used; and (b) The methods and landins Points to be used. (3) An applicant shall notify the chief executive of any 30 changes to the particulars specified under subsection (1) (e) of this section.
Cf. 1983, No. 14, s. 63 (1), (3); 1986, No. 34, s. 13 (1)
104. General provisions relating to fishing permits- (1) A fishing permit authorises the taking of fish subject to such 35 restrictions and conditions as may be specified by or under this Act. (2) No person shall act pursuant to more than 1 fishing permit at any one time. (3) A fishing permit is not transferable. 40 (4) A fishing permit shall be issued by the chief executive for a period not exceeding 5 years. Fisheries 83
(5) Permits shall be subject to such other conditions (including conditions relatin to areas, species, quantities, methods, the use or non-use ot vessels and the specific vessel or types of vessels (if any) that may be used, types and amounts of 5 hshing gear, harvesting, handling, places where fish may be landed, and periods of times) as the chief executive considers appropriate. (6) The chief executive may from time to time, by written notice to a permit holder, amend or revoke the conditions of 10 the permit or add new conditions. (7) The conditions that may be imposed on permits under this section may be more restrictive or more onerous than the conditions imposed on shing by any regulations or notice. (8) The conditions referred to in this section shall be 15 substantially the same for all permits for any stock management area in respect of the same class or species of fish unless the chief executive is satisfied, on stated grounds, that different conditions are reasonable.
Cf. 1983, No. 14, s. 63 (4), (6), (8), (9); 1986, No. 34, s. 13 (1)
20 105. Qualifications for holding fishing permit-(1) The following persons are disqualified from holding a fishing permit: (a) Any person, or any person who is an associated person in relation to that person, who owes the Crown any 25 amount of deemed value exceeding $1,000 that has been outstandins for at least 3 months after the date of the demand tor payment: (b) Any individual who is not ordinarily resident in New Zealand: 30 (c) Any body corporate wholly or significantly controlled from outside New Zealand. (2) While this subsection is in force, a person is qualified to hold a fishing permit in respect of stocks not subject to a quota management system only if,- 35 (a) On the 30th day of September 1992, that person held a current fishing permit under section 63 of the Fisheries Act 1983 in respect of stocks not subject to a quota management system; and (b) During the period commencing on the 1st day of October 40 1990 and ending with the close of the 30th day of September 1992, that person lawfuly took fish, aquatic life, or seaweed pursuant to the fishing permit held by that person; and 84 Fisheries
(c) The chief executive is satisfied that the fish, aquatic life, or seaweed taken by that person during that period were lawfully taken as a target species (not being bycatch); and, for the purpose of this paragraph, the chief executive shall only accept information from 5 fishing records or returns duly completed and furnished before the 15th day of October 1992 in the prescribed manner or in accordance with requirements made under section 66 (3) of the Fisheries Act 1983. 10 (3) The chief executive may, but is not obliged to, issue a fishing permit to any person who owes the Crown any amount (other than the whole or part of the deemed value of any flsh taken without authority) that is payable under this Act. (4) Subject to subsections (1) to (3) of this section, the chief 15 executive is obliged to issue a fishing permit to any person who meets the conditions prescribed by or under this Act for the grant of the permit. (5) In the case of any person whose permit has lapsed due to non-payment of deemed values within the immediately 20 preceding 12 months and who has paid in full the outstanding amount, the chief executive may make the grant of a permit subject to such conditions as he or she considers appropriate and such conditions may include- (a) The payment of a bond: 25 (b) The provision of a guarantee of substance for future debts. (6) Subsection (2) of this section shall expire on a date to be appointed by the Governor-General by Order in Council and shall, as from that date, be deemed to have been repealed. 30 Cf. 1983, No. 14, ss. 28w (8), 282 (1)-(3), 57 (8), (9), 63 (2), (13); 1986, No. 34, ss. 10, 13 (1); 1992, No. 137, s. 4
106. Revocation of fishing permit-(1) The chief executive may revoke any fishing permit if satistied that any information or evidence supplied with the application was false 35 or misleading in any material particular or omitted details of any person who is an associated person in relation to the applicant. In such a case, the revocation shall be deemed to have effect on and from the date of issue of the permit. (2) The chief executive may revoke any fishing permit where 40 the holder becomes, by virtue of section 105 of this Act, disqualified from holding the permit. In such a case, the revocation shall be deemed to have effect on and from the date of the disqualification. Fisheries 85
(3) Any person may request the chief executive to revoke any fishing permit issued to that person. Where the chief executive revokes a fishing permit under this subsection, the holder shall surrender to the chief executive upon demand the permit and 5 any duplicates held by the holder.
Special Permits 107. Special permits-(1) The chief executive may, on application made to the chief executive in writing, grant to any person named in the application a special permit- 10 (a) For the purposes ot- (i) Education; or (ii) Investigative research; or (iii) The carrying out of trials and experiments with fishing vessels or hshing gear or any other apparatus 15 or technique which is capable of being used in connection with the taking of fish, aquatic life, or seaweed: (b) For the purposes of sport or recreation in the case of any disabled person within the meaning of the Disabled 20 Persons Employment Promotion Act 1960 who, in the opinion of the chief executive, would otherwise be unable, by reason of the person's disability, to fish by the methods permitted by this Act: (c) For any other purpose approved by the Minister. 25 (2) Where the granting of any special permit will have a significant impact on fisheries resources, the chief executive shall, before granting such a permit, consult with such persons and organisations as the chief executive considers representative of interests that would be affected if the special 30 permit were granted. (3) Notwithstanding anything in any other provision of this Act, the chief executive may, for the purpose of this Act, authorise the holder of a special permit to take fish, aquatic life, or seaweed subject to such conditions as the chief executive 35 may specify in the permit. (4) Every special permit shall be subject to such conditions as the chief executive may from time to time impose. (5) All fish, acquatic life, or seaweed taken pursuant to this section shall be disposed of as the chief executive directs, or as 40 may be specified in the permit. (6) The chief executive may at any time revoke any special permit by notice in writing to the holder. C£ 1983, No. 14, s. 64; 1986, No. 34, s. 13 (1) 86 Fisheries
PART VI
CONFLICT RESOLUTION
108. Application of this Part-This Part of this Act applies to disputes about access to fisheries resources; but does not apply to disputes as to the sustainability of any fisheries 5 resources.
Statement of Procedure 109. Minister to issue statement of procedure-(1) The Minister, after consultation with such persons and organisations as the Ministers considers relevant, shall, publicly notify a draft 10 statement of procedure for the resolution of disputes about access to fisheries resources. (2) The places at which the draft statement of procedure shall be available shall be notified in a daily newspaper in each of the cities of Auckland, Wellington, Christchurch, and 15 Dunedin within 6 months after the commencement of this Part of this Act. (3) Any person may, within 1 month after the public notihcation of the statement of procedure subsection (2) of this section, make a submission about the draft to the Minister. 20 (4) The Minister shall, after having due regard to the submissions (if any) received on the draft statement of procedure, and within 1 month after the receipt of the last submission (if any), issue the statement of procedure for the resolution of disputes about access to fisheries resources. 25 (5) The places at which the statement of procedure shall be available shall be notified in a daily newspaper in each of the cities of Auckland, Wellington, Christchurch, and Dunedin. (6) The Minister shall from time to time, at such intervals as the Minister considers appropriate, in like manner review the 30 statement of procedure ana may, in such manner, at any time- (a) Amend the statement; or (b) Revoke the statement and substitute a new statement.
110. Content of statement-The statement under section 35 109 of this Act shall- (a) Provide opportunities for the public to identify issues of dispute relating to access to fisheries resources; and (b) Provide for the identification of the nature of disputes; and 40 (c) Provide for input and participation by tangata whenua having an interest in the fisheries resources Fisheries 87
concerned, having particular regard to kaitiakitanga; and (d) Provide opportunities for affected parties to negotiate and take collective action to resolve disputes; and 5 (e) Provide for transparent and accountable decision making; and (f) Provide for decisions to be based on the best available information.
Commissioner 10 111. Minister may appoint Commissioner to resolve dispute-(1) Where- (a) The parties to a dispute are unable to resolve the dispute in accordance with the procedure set out in the statement having effect under section 109 of this Act; 15 and (b) The Minister is satisfied that- (i) There is no reasonable prospect of a negotiated solution being reached; and (ii) There is a legitimate and substantial dispute 20 about access to a fisheries resource that ought to be addressed,- the Minister, on the Minister's own motion or at the request of any party to the dispute, may appoint a Commissioner to inquire into the dispute. 25 (2) Subject to subsection (3) of this section, within 2 months after any party to a dispute requests the Minister to appoint a Commissioner, the Minister shall- (a) Decide whether or not to appoint a Commissioner; and (b) Notify that party of either- 30 (i) The name of the Commissioner; or (ii) The reasons for deciding not to appoint a Commissioner in that case. (3) The Minister may from time to time extend by such period not exceeding 4 months as he or she considers necessary 35 the 2 month period specified in subsection (2) of this section; and, in such a case, the Minister shall, as soon as practicable, notify the party or parties requesting the appointment of the reasons for the extension. (4) In considering the suitability of any person for 40 appointment as a Commissioner, the Minister shall- (a) Have regard to that person's knowledge of and experience in the difFerent aspects of matters likely to be the subject-matter of the dispute; and (b) Consult the parties to the dispute. 88 Fisheries
112. Inquiries-(1) For each inquiry, the Commissioner shall determine such procedure as the Commissioner considers is appropriate and fair in the circumstances. (2) The Commissioner shall consider- (a) Submissions from parties to the inquiry; and 5 (b) Submissions from persons interested in or affected by the issue being dealt with by the inquiry. (3) The Commissioner may receive in evidence any statement, document, information, or matter that may, in the Commissioner's opinion, assist the Commissioner to deal 10 effectively with the dispute before him or her, whether or not the same would otherwise be admissible in a court of law. (4) If the Commissioner thinks fit in respect of any dispute before the Commissioner, the Commissioner may- (a) Examine, on oath or otherwise, the parties or any of them 15 or any person whose evidence has been received by the Commissioner under subsection (3) of this section: (b) Require any person to verify by statutory declaration any statement made by that person with respect to the dispute. 20 (5) If the Commissioner is not satisfied that the dispute is a legitimate and substantial dispute about access to a fisheries resource, he or she may refuse to consider the dispute and refer it back to the Minister. (6) Without limiting any other provision in this Part of this 25 Act, every Commissioner shall have and may exercise such powers as are reasonably necessary or expedient to enable the Commissioner to carry out his or her functions. (7) The parties to the dispute are the parties to the mquiry. Cf. 1983, No. 14, s. 23 30
113. Secretarial services-(1) The chief executive shall designate an employee of the Ministry to be Secretary to the Commissioner, and shall also provide from the Ministry such secretarial, recording, accounting, and clerical services as may be necessary to enable the Commissioner to discharge his or 35 her functions. (2) All expenses incurred in respect of the functions of the Commissioner shall be paid out of money from time to time appropriated by Parliament for the purpose.
114. Fees and allowances of Commissioner-Every 40 Commissioner shall be deemed to be a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951 and there may, if the Minister so directs, be paid to the Fisheries 89
Commissioner, out of money appropriated by Parliament for the purpose,- (a) Remuneration by way of fees, salary, or allowances in accordance with that Act; and 5 (b) Travelling allowances and travelling expenses in accordance with that Act in respect Of time spent travelling as a Commissioner;- and the provisions of that Act shall apply accordingly. Cf. 1993, No. 95, s. 63 (3)
10 115. Protection of sensitive information-(1) The Commissioner may, of the Commissioner's own motion or on an application oi a party to the inquiry, make an order described in subsection (2) ot this section where satisfied that the order is necessary- 15 (a) To avoid serious offence to tikanga Maori or to avoid the disclosure of the location of waahi tapu; or (b) To avoid the disclosure of a trade secret or unreasonable prejudice to the position of the person who supplied, or is the subject of, the information,- 20 and, in the circumstances of the particular dispute, the importance of avoiding such offence, disclosure, or prejudice outweighs the public interest in making that iniormation available. (2) The Commissioner may make an order for the purpose of 25 subsection (1) of this section prohibitin or restricting the publication or communication of any intormation supplied to the Commissioner, or obtained by the Commissioner, in the course of any inquiry, whether or not the information may be material to the inquiry. 30 (3) In this section, the term "information" includes any document or evidence.
Cf. 1991, No. 69, s. 42; 1993, No. 95, s. 66
116. Commissioner to report to Minister within 3 months-( 1) Subject to subsection (2) of this section, a 35 Commissioner shall, within 3 months after being appointed to inquire into a dispute, report to the Minister on the dispute and make a recommendation that the Commissioner believes is the most efficient and equitable option (which may include maintaining the status quo or taking no action) in that case. 40 (2) The option recommended by the Commissioner shall not unduly affect persons having a current interest in the shery, having regard to- 90 Fisheries
(a) The value of commercial interests and the economics of the fishing operation; and (b) Non-commercial values; and (c) Non-commercial Maori customary values. (3) The Minister may from time to time extend by such 5 period he or she considers necessary the 3 month period specified in subsection (1) of this section; and, in such a case, the Minister shall, as soon as practicable, notify the parties to the inquiry of the reasons for the extension.
117. Minister to determine dispute-(1) Where there is a 10 dispute, the Minister- (a) In the case of a dispute referred to a Commissioner, shall determine the dispute as soon as practicable after receiving and considering the Commissioner's report under section 116 of this Act; and 15 (b) In any other case, shall determine the dispute as soon as practicable. (2) In every case, the Minister's determination shall not unduly affect persons having a current interest in the fishery, having regard to- 20 (a) The value of commercial interests and the economics of the fishing operation; and (b) Non-commercial values; and (c) Non-commercial Maori customary values. (3) The Minister shall- 25 (a) Give each of the parties to the dispute notice in writing of the determination; and (b) Give notice of the determination in at least 1 newspaper circulating in the area concerned; and (c) Cause the determination to be published in the Gazette. 30 (4) Regulations made under section 302 of this Act may contain such provisions as may be necessary or expedient for the purpose of giving effect to any determination made under this section.
PART VII 35
REGISTRATION OF TRANSFERS, MORTGAGES, VESSELS, ETC.
Registration of Transactions Relating to Quota or Annual Catch Entitlements
118. Registers-(1) The Minister shall ensure that the following registers are kept: 40 (a) A register to be called the Individual Transferable Quota Register: Fisheries 91
(b) A register to be called the Annual Catch Entitlement Register. (2) The registers may be kept in the form of information stored by means of a computer. 5 (3) The registers shall be public registers for the purposes of the Privacy Act 1993 and shall be open for inspection on payment of the prescribed fee (if any) during ordinary office hours; and the Registrar shall supply to any person copies of all or part of a register on request and payment of a reasonable 10 charge for the production of the copy. (4) The registers may be kept in conjunction with any other register required to be kept under this Act. (5) The registers and the information contained in or associated with them shall for all purposes be deemed to be 15 owned by the Crown at all times.
119. Appointment of Registrars and agents-(1) Subject to subsection (2) of this section, the Minister may from time to time, appoint any suitable person to be- (a) A Registrar of the Individual Transferable Quota Register 20 or the Annual Catch Entitlement Register or both: (b) A Deputy Registrar of the Individual Transferable Quota Register or a Deputy Registrar of the Annual Catch Entitlement Register or both. (2) The Minister may at any time- 25 (a) Appoint any suitable person or organisation (hereafter in this section referred to as an agent) to provide such services to enable the Registrar to maintain the Individual Transferable Quota Register or the Annual Catch Entitlement Register or both: 30 (b) Enter into any agreement or arrangement for the purpose: (c) Approve the appointment by the agent of any suitable person to be such a Registrar or Deputy Registrar. (d) Revoke any appointment of an agent under this 35 subsection. (3) Any appointment under subsection (1) (a) of this section may, but is not required to, be made under the State Sector Act 1988. (4) Any appointment under subsection (2) of this section may 40 be made subject to such conditions as the Minister thinks fit. (5) Where an appointment under subsection (2) of this section is revoked,- (a) Any agreement or arrangement relating to that appointment shall be deemed to be cancelled: 92 Fisheries
(b) Every appointment of a Registrar or Deputy Registrar in relation to the appointment shall be deemed to be revoked: (c) Neither the Crown nor any other person shall be liable to pay compensation to any person or otherwise be 5 guilty ot a civil wrong, by reason only of the revocation. (6) Every Registrar and every Deputy Re*trar shall have such functions, duties, and powers as are conierred or imposed by regulations made under section 302 of this Act; and, subject 10 to such regulations, the fact that a Deputy Registrar exercises or performs any of the functions, duties, or powers of a Registrar shall be conclusive evidence of his or her authority to do so. (7) For the purposes of this Act, a Registrar may close all or 15 any of the relevant registers for a period not exceeding 5 working days. (8) While any register is closed during a period referred to in subsection (7) of this section, the Registrar is not obliged to register any documents except those documents received for 20 registration before the close of the register.
120· Matters to be shown in Individual Transferable Quota Register-The Individual Transferable Quota Register shall contain the following particulars: (a) The total allowable catch: 25 (b) The total allowable commercial catch: (c) The individual transferable quota allocated to each person: (d) Every transfer of individual transferable quota (whether by operation of law or otherwise) notified to a 30 Registrar, including- (i) The name of the transferor and the transferee; and (ii) The number of shares of individual transferable quota transferred; and 35 (iii) The time and date of the registration of the transfer; and (iv) The stock and area to which the transfer of individual transferable quota relates: (e) The provisional individual transferable quota allocated to 40 each person: (f) The provisional catch history allocated to each person: (g) Every increase and every decrease of individual transferable quota and provisional individual Fisheries 93
transferable quota held by any person that results from- (i) An alteration to any person's provisional catch history; or 5 (ii) The transfer by the Crown of any quota by operation of section 20 or section 21 of this Act; or (iii) The operation of section 22 of this Act: (h) The aggregate holding of every person's individual transferable quota, provisional individual transferable 10 quota, and provisional catch history: (i) Every caveat registered against any individual transferable quota or provisional individual transferable quota under any of sections 69,127,128, and 271 of this Act: (j) Every mortgage registered under section 124 of this Act, 15 and-- (i) The names of the mortgagor and the mortgagee: (ii) The date and time ot the registration of the mortgae: (iii) The number of shares of individual transferable 20 quota or provisional individual transferable quota secured by the mortgage: (iv) The date and time of discharge of the nnortgage.
121. Matters to be shown in Annual Catch Entitlement 25 Register-The Annual Catch Entitlement Register shall contain the following particulars in respect of each stock: (a) Every annual catch entitlement held by any person at any time: (b) Every transfer of annual catch entitlement (whether by 30 operation of law or otherwise), and- (i) The name of the transferor and the transferee; and (ii) The tonnage of annual catch entitlement transferred; and 35 (iii) The time and date of registration; and (iv) The stock and area: (c) Every caveat registered against any annual catch entitlement under section 69 or section 127 or section 128 of this Act.
40 122. Transfers of quota-(1) Subject to this Act, any owner of individual transferable quota may permanently transfer quota to another person- 94 Fisheries
(a) In accordance with regulations made under section 302 of this Act; or (b) By transmission by any lawful means other than by such a transfer. (2) A transfer of individual transferable quota shall not be 5 registered or be effectual unless the transfer is able to be given effect to on and from the date on which it is presented for registration.
123. Transfers of annual catch entitlement-(1) Subject to this Act, any annual catch entitlement may be transferred to 10 any person- (a) In accordance with section 56 of this Act; or (b) By transmission by any lawful means other than by a transfer under that section. (2) A transfer of annual catch entitlement shall not be 15 registered or be effectual unless the transfer is able to be given effect to on and from the date on which it is presented for registration. (3) Subsection (2) of this section does not prevent a Registrar accepting in any fishing year a transfer that is intended to have 20 effect on and rrom the commencement of next fishing year, but no such transfer shall be registered until the commencement of that next fishing year. (4) Every person commits an offence and is liable to a fine not exceeding $250,000 who in any fishing year transfers any 25 annual catch entitlement in respect of a stock specified in the Second Schedule to this Act in circumstances where the total catch taken by that person in that fishing year exceeds the total annual catch entitlement for that stock held by that person as at the date on which the transfer takes effect. 30
124. Mortgages of quota-(1) Subject to this Act, any individual transferable quota may be given as security for a mortgage. (2) A mortgage of individual transferable quota prevents the registration of any transfer to the extent that the registration 35 would reduce the mortgagor's holding of such quota below the amount of quota secured by the mortgage. (3) The Registrar shall register a mortgage only if there is sufficient unsecured individual transferable quota to secure the mortgage. 40
125. Mortgages of annual catch entitlement prohibited-No person shall give any annual catch Fisheries 95
entitlement as a security for a mortgage and every mortgage of any annual catch entitlement shall be invalid and unenforceable.
126. Assignment or lease of quota or annual catch 5 entitlement prohibited-No person may deal with individual transferable quota, provisional individual transferable quota, annual catch entitlements, or provisional catch history otherwise than in accordance with this Act and every dealing that is not in accordance with this Act shall have no effect.
10 Cavea8
127. Crown caveats and directions preventing registration of transactions-(1) Where- (a) Any person has been charged with an offence for which the maximum fine is $250,000; or 15 (b) The Chief Executive believes on reasonable grounds that any person has committed such an offence,- the chief executive may direct the Registrar to place a caveat on any quota or annual catch entitlement held by that person or by any person who is an associated person in relation to that 20 person, or direct that no transfer, mortgage, or other transaction be registered in respect of or against any such quota or annual catch entitlement. (2) A Court may at any time, on application by the holder of any quota or annual catch entitlement, order that any caveat 25 lodged or directions given pursuant to subsection (1) of this section shall not apply in respect of the quota or annual catch entitlement or any part thereof, whether generally or in respect of any specified dealing in the quota or annual catch entitlement. Any such order may be subject to such sureties 30 and conditions as the Court may specify. (3) A caveat lodged or directions given pursuant to subsection (1) of this section shall not have effect until registered by the Registrar, and shall lapse on the expiry of the 30th day after the date of that registration, or at such earlier date as may be 35 specified in the caveat or directions. (4) Upon application to the Court by the chief executive, or any Fishery Offcer, the Court may extend the duration of any caveat or directions under subsection (1) of this section for a further period of 60 days from the date on which the caveat or 40 directions would otherwise expire, or such lesser period as the Court sees fit, and upon such conditions as the Court may specify. 96 Fisheries
(5) Any application under subsection (5) of this section shall be made before the expiry of the current caveat or directions and the application shall have the effect of extending the duration of the current caveat or directions for a period of 14 days, or until the Court makes an order determining the application, 5 whichever first occurs. (6) No application under subsection (5) of this section shall be heard by the Court unless it is satisfied that notice of the application has been served on any person who is to be the subject of the direction at least 7 days before the hearing of the 10 application. (7) On any decision being made not to lay an information or charge against the person, the chief executive shall forthwith notify the Registrar and the Registrar shall thereupon cancel the caveat or directions. 15 (8) The chief executive shall, as soon as practicable after a caveat is lodged or cancelled or directions are given or cancelled under this section, notify the holder of the quota or annual catch entitlement that is or was subject to the caveat or directions. 20 Cf. 1983, No. 14, ss. 289(7), (8), 80A; 1986, No. 34, s. 10; 1990, No. 29, ss. 17 (5), 39 (1); 1991, No. 149, s. 24
128. Caveat against transfer of quota or annual catch entitlement-(1) Where- (a) The holder of the quota or annual catch entitlement 25 concerned and any other person jointly lodge a caveat with the Registrar; or (b) A Court directs that a caveat be lodged; or (c) The chief executive directs that a caveat be lodged pursuant to section 69 or section 127 or section 271 of this 30 Act,- the Registrar shall register that caveat against the quota or annual catch entitlement that is subject to the caveat. (2) Every caveat lodged under paragraph (a) or paragraph (c) of subsection (1) of this section shall be in an approved form and 35 shall contain- (a) A statement of the grounds of which the caveat is lodged; and (b) Either- (i) The specified tonnage of annual catch 40 entitlement to which it relates; or Fisheries 97
(ii) The number of shares of quota to which it relates. C£ 1989, No. 148, s. 89
129. Service of notices as to caveats-Every notice 5 relating to a caveat and any proceedings in respect of a caveat, if served at the place appointed in the caveat, shall be deemed duly served. Cf. 1989, No. 148, s. 90
130. Effect of caveat-(1) Subject to subsections (2) to (4) of 10 this section, so long as a caveat remains in force, the Registrar shall not make any entry on the Register having the effect of charging or transferring the quota or annual catch entitlement to which the caveat relates. (2) Subsection (1) of this section shall not prevent the Registrar 15 from making any entry where- (a) The caveator consents to the making of that entry; or (b) The making of that entry is necessary to complete the registration of any instrument that has been accepted for registration before the receipt of the caveat. 20 (3) Subsection (1) of this section shall not prevent the Registrar from making any entry necessary to effect the registration of a transfer of any quota where- (a) The transfer is expressed to be made in pursuance of a power of sale conferred on the transferor by virtue of 25 a registered mortgage of that quota or annual catch entitlement (hereafter in this subsection referred to as the empowering mortgage); and (b) The caveat was lodged after the registration of the empowering mortgage; and 30 (c) The interest claimed by the caveator arises under an unregistered mortgage or an agreement to mor*age, dated later than the date of registration ot the empowermg mortgage and relating to the same interest to which the empowering mortgage relates; 35 and (d) The Registrar is not satisfied from the particulars stated in the caveat that, on the assumption that the caveator is able to prove the caveator's claim, the caveator would be entitled to- 40 (i) An order of the Court that the registration of the empowering mortgage be cancelled; or (ii) The registration of any instrument that would have the effect of making the mortgagee's interest 98 Fisheries
under the empowermg mortgage subject to the interest claimed by the caveator. (4) In any case to which subsection (3) of this section applies, a caveat shall, upon the registration of the transfer, be deemed to have lapsed and the interest of the mortgagor expressed in that 5 transfer to be transferred shall pass to and vest in the purchaser freed and discharged of the interest claimed by the caveator; and the Registrar may make on the register any entry necessary to show that the caveat has lapsed. C£ 1989, No. 148, s. 91 10
131. Notice of caveat to be given to persons afFected- Upon the receipt of any caveat that complies with section 128 of this Act, and is completed to the satisfaction of the Registrar, the Registrar shall give notice of the caveat to the owner of the quota or annual catch entitlement against which the caveat has 15 been lodged. C£ 1989, No. 148, s. 92
132. Procedure for removal of caveat-(1) The owner of the quota or annual catch entitlement against which the caveat has been lodged may apply to the High Court for an order that 20 the caveat be removed. (2) The Court, upon proof that notice of the application has been served on the caveator or on whose behalf the caveat has been lodged, may make such order, either ex parte or otherwise, as the Court thinks fit. 25 C£ 1989, No. 148, s. 93
133. Lapse of caveat against transfer-Every caveat shall, upon the expiry of 10 working days after the notice is given to the caveator that application has been made for the registration of any instrument affecting the quota or annual catch 30 entitlement protected by the caveat, be deemed to have lapsed as to that quota or annual catch entitlement, or so much oi it as is referred to in the notice, unless- (a) Before the expiry of the 10 working days, notice is given to the Registrar that application for an order to the 35 contrary has been made to the High Court; and (b) Such an order is made and served on the Registrar within a further period of 20 working days. Cf. 1989, No. 148, s. 94
134. Person entering or maintaining caveat without 40 due cause liable for damages-Any person who lodges a Fisheries 99
caveat and who, when that caveat is no longer needed to protect any interest of the caveator, fails, without reasonable cause, to withdraw that caveat as soon as reasonably practicable after having been requested to do so by any person 5 prejudicially affected by the caveat is liable in damages ior any loss or damage suffered by any person as a result of the failure to withdraw the caveat.
CE 1989, No. 148, s. 95
135. Caveat may be withdrawn-(1) Any caveat may be 10 withdrawn by the person whose interests are protected by the caveat or the person's attorney or agent under a written authority, and either as to the whole or any part of the quota or annual catch entitlement protected by the caveat. (2) Every withdrawal ot a caveat shall be in the prescribed 15 form.
Cf. 1989, No. 148, s. 96
136. No second caveat may be entered-When any caveat lodged under this Act has lapsed or has been withdrawn, it shall not be lawful for the Registrar to receive any second 20 caveat affecting the same quota or annual catch entitlement by the same person, and in the same right and for the same cause, except by order of the High Court. Cf. 1989, No. 148, s. 97
Mortgages 25 137. Mortgage to take effect as security only-A mortgage under this Act shall have effect as a security, but shall not operate as a transfer of the quota charged. Cf. 1989, No. 148, s. 73
138. Forms of mortgage-Whenever any quota is intended 30 to be charged with or made security for payment of any money, the owner of the quota shall execute for the purposes of registration a memorandum in the approved form and present it for registration together with the prescribed fee (if any). 35 C£ 1989, No. 148, s. 74
139. Alteration of terms of mortgage by endorsement-(1) Subject to subsections (2) and (3) of this section, in the case of every mortgage under this Act,- 100 Fisheries
(a) The amount secured by the mortgage may be increased or reduced; and (b) The rate of interest ma;y be increased or reduced; and (c) The term or currency oi the mortgage may be shortened, extended, or renewed; and 5 (d) The covenants, conditions, and powers contained or implied in the mortgage may be varied, negatived, or added to-- by a memorandum in an approved form accompanied by the prescribed fee (if any). 10 (2) The memorandum may include all or any of the matters specified in subsection (1) of this section, and, in that case, the approved forms shall be modified accordingly. (3) It shall not be necessary for a mortgagor to execute a memorandum of reduction, or for a mortgagee to execute a 15 memorandum of increase, of the mortgage debt or of the rate of interest payable under a mortgage. C£ 1989, No. 148, s. 75
140. Rights of mortgagee-Without limiting the covenants, conditions, and powers that may, by agreement 20 between the mortgagor and the mortgagee, be contained in a mortgage of quota, a mortgage of (juotta may confer on the mortgagee, in the event of default Dy the mortgagor in the performance or observance of any covenant contained or implied in the mortgage, the power to sell in whole or in part 25 the amount of quota charged by the mortgage. C£ 1989, No. 148, s. 78
141. Restriction on exercise of power of sale-(1) Subject to section 142 of this Act, no power conferred by any mortgage to sell any quota shall become or be deemed to have 30 become exercisable, by reason of any default in the payment of any money secured by any mortgage of any quota, or by reason of any default in the performance or observance of any other covenant expressed or implied in the mortgage, unless and until the mortgagee serves on the mortgagor a notice that 35 complies with the requirements of this section, and (in any case where the default complained of is capable of remedy) the mortgagor fails to remedy the default before the date specified in the notice. (2) Every such notice shall be in an approved form; but no 40 such notice shall be void merely because of any variation from the approved form unless- Fisheries 101
(a) The notice does not adequately inform the mortgagor of- (i) The nature and extent of the default complained of; and 5 (ii) The date by which the mortgagor is required to remedy the default (if it is capable of remedy); and (iii) The rihts that the mortgagee will be entitled to exercise it the default is not remedied within the specified period: and 10 (b) The variation materially prejudices the interests of the Inortgagor. (3) The date to be specified in the notice shall be not earlier than 1 month from the service of the notice.
Cf. 1989, No. 148, s. 79
15 142. Court may permit mortgagee to exercise power before period expired-(1) The High Court may, on the application of a mortgagee made ex parte or otherwise as the Court thinks fit, grant leave to the mortgagee to exercise any of the powers of the owner of the quota concerned at any time 20 before the date specified in the notice given under section 141 of this Act. (2) Leave may be granted under subsection (1) of this section either unconditionally or upon and subject to such conditions as the Court thinks fit. 25 Cf. 1989, No. 148, s. 81
143. Restriction on action to recover deficiency-If at any time the mortgagee exercises the power of sale and the amount realised is less than the amount owing under the covenant to repay expressed or implied in the mortgage, no 30 action to recover the amount of the deficiency or any part of the deficiency shall be commenced by the mortgagee against any person (not being the mortgagor of the quota at the time of the exercise of the power of sale) unless the mortgagee, at least 1 month before the exercise of the power of sale, serves on that 35 person notice of the mortgagee's intention to exercise the power of sale and to commence action against that person to recover the amount of the deficiency in the event of the amount realised being less than the amount owing under the covenant to repay. 40 Cf. 1989, No. 148, s. 82 102 Fisheries
144. No contracting out-Sections 140 to 143 of this Act shall have effect notwithstanding any provision to the contrary in any mortgage or other agreement.
Cf. 1989, No. 148, s. 83
145. Application of purchase money-The purchase 5 money from the sale by the mortgagee of any quota shall be applied as follows: (a) First, in payment of the expenses occasioned by the sale: (b) Secondly, in payment of the money then due or owing to the mortgagee: 10 (c) Thirdly, the surplus (if any) shall be paid to the mortgagor.
Cf. 1989, No. 148, s. 84
146. Transfer by mortgagee-Upon the registration of any transfer executed by a mortgagee for the purpose of the sale of any quota by the mortgagee, ownership oi that quota shall pass 15 to and vest in the purchaser, freed and discharged from all liability on account of the mortgage, and of any interest.
Cf. 1989, No. 148, s. 85
147. Discharge of mortgage-(1) Where the sum secured by a mortgage has been paid off either wholly or in part, or 20 where for any other reason the mortgagee has become bound to discharge the mortgage either wholly or partially, the mortgagee shall endorse on the mortgage a memorandum in an approved form. (2) A discharge of mortgage, when registered under this Act, 25 shall effectually discharge the quota from the mortgage to the extent specified in the memorandum of discharge.
Cf. 1989, No. 148, s. 86
Acquisitions by Operation qf Law 148. Person claiming under operation of law may 30 apply to have interest registered-(1) Any person claiming to be entitled by operation of law to be registered as the owner, mortgagee, or caveator of any quota or any annual catch entitlement may make application to the Registrar in an approved form to have the person so registered. 35 (2) Every application under subsection (1) of this section shall be accompanied by such evidence in support of the application as may be necessary to establish the applicant's entitlement to Fisheries 103
be registered as the owner, mortgagee, or caveator of the quota or annual catch entitlement. Cf. 1989, No. 148, s. 87 (1), (2)
149. Procedure on application-If, on any application 5 under section 148 of this Act, the Registrar is satisfied that the applicant is entitled to be registered as the owner, mortgagee, or caveator of any quota or annual catch entitlement, the Registrar shall register the applicant accordingly. CE 1989, No. 148, s. 88
10 Guarantee of Ownership Rights 150. Guarantee of ownership rights-(1) Subject to subsection (2) of this section, the production of a certified copy of an entry in any register kept under this Part of this Act as to the ownership of any quota or annual catch entitlement shall, 15 unless the contrary is proved by production of the register or a certified copr ofthe register, be held in every Court of law or equity and ror all purposes to be conclusive proof that the owner shown in the certified copy is entitled to the quota or annual catch entitlement to which the certified copy relates. 20 (2) Subsection (1) of this section does not apply in respect of any action brought by any person deprived oi rihts in relation to any quota or annual catch entitlement, or oi any rights as mortgagee of any quota or annual catch entitlement, by fraud, as against- 25 (a) The person registered as owner of the quota or annual catch entitlement through fraud; or (b) A person deriving otherwise than as a transferee bona fide for value from or through a person registered as owner of the quota or annual catch entitlement 30 through fraud. Cf. 1989, No. 148, s. 58 (1), (3)
Protection Of Purchasers 151. Purchasers from owner not affected by notice- Notwithstanding any rule of law or equity, except in the case of 35 fraud, no person contracting or dealing witn or taking or proposing to take a transfer from the owner of any quota or annual catch entitlement- (a) Shall be required- (i) To inquire into or ascertain the circumstances in 40 or the consideration for which that owner or any previous owner is or was registered; or 104 Fisheries
(ii) To see to the application of the purchase money or of any part of it; or (b) Shall be affected by notice, direct or constructive, of any trust or unregistered interest, and the knowledge that any such trust or unregistered mterest is in existence 5 shall not of itself be imputed as fraud. Cf. 1989, No. 148, s. 59
152. No liability on bona fide purchaser or mortgagee-(1) This section applies to- (a) Any person who has acquired ownership of any quota or 10 annual catch entitlement as a bona fide purchaser for value and is registered as owner under this Act; and (b) Any person to whom a mortgage of any quota has been granted under this Act, as a mortgagee bona fide for value, and who is registered as a mortgagee under 15 this Act. (2) No person to whom this section applies shall be subject to action for recovery of damages, or deprived of the rights as registered owner of the quota or annual catch entitlement, or as the case may be, of that person's mterest as mortgagee, on 20 the ground that the vendor from whom the registered owner so acquired the quota or annual catch entitlement or, as the case may require, the mortgagor of the quota- (a) May have been registered as owner through fraud or error, or under any void or voidable instrument; or 25 (b) May have derived from a person registered as owner through fraud or error, or under any void or voidable instrument.
C£ 1989, No. 148, s. 60
Compensation 30 153. Compensation for mistake or misfeasance of Registrar-(1) Any person- (a) Who sustains loss or damage through any omission, mistake, or misfeasance of the Registrar, or of any employee to assist the Registrar in the exercise of the 35 Registrar's functions under this Act, in the execution of their respective duties; or (b) Is deprived of the rights in respect of which the person is registered as owner of any quota or annual catch entitlement, or of any interest as mortgagee of any 40 quota, by the registration of any other person as the owner or, as the case may require, as mortgagee, or Fisheries 105
by any error, omission, or misdescription in any record kept by the Registrar in respect of quota or annual catch entitlement, or in any entry or memorial in the Individual Transferable Quota 5 Register or the Annual Catch Entitlement Register, or has sustained any loss or damage by the wrongful inclusion of ownership in any such record, and who by virtue of section 150 of this Act is unable to bring an action in respect of that quota or annual catch 10 entitlement or, as the case may require, that interest- may bring an action against the Crown for recovery of dannages. (2) This section does not apply in respect of any transfer of 15 quota or entry or record effected before the commencement of this section. Cf. 1989, No. 148, s. 61
154. Notice of action to be served on Attorney-General and Registrar-(1) Notice in writing of every action against 20 the Crown under section 153 of this Act, and of the cause of the action, and of the amount claimed, shall be served upon the Attorney-General, and also upon the Registrar, at least 20 working days before the commencement of the action. (2) If those officers concur that the claim ought to be 25 admitted, as to the whole or any part of the claim, without suit or action, and jointly certify to that effect, the amount of the claim may, without further appropriation than this section, be paid, out of public money appropriated by Parliament, in whole or in part to the person entitled to that amount in accordance 30 with the certificate. (3) If, after notice of the admission has been served on the claimant, or the solicitor or agent of the claimant, the claimant proceeds with the action, and recovers no more than the amount admitted, the claimant- 35 (a) Shall not be entitled to recover any costs as against the Crown; and (b) Shall be liable to the Crown for the costs of defending the action in the same manner as if judgment had been given for the defendant in the action. 40 C£ 1989, No. 148, s. 63
155. Recovery of compensation paid and costs in case of fraud-(1) Where any sum of money has been lawfully paid out of public money as compensation for any loss occasioned 106 Fisheries by fraud on the part of any person causing or procuring that person to be registered as the owner of any quota or annual catch entitlement, or as the case may be, as mortgagee, by virtue of any dealing with or transmission from a registered owner, the amount of that compensation, together with all 5 costs incurred in testing or defending any claim or action in relation to that compensation, shall be deemed to be a debt due to the Crown from the person legally responsible for that fraud and may be recovered irom that person, or from that person's personal representatives, by action at law, in the name of the 10 Registrar, or, in the case of bankruptcy, may be proved as a debt due from that person's estate. (2) In any action pursuant to subsection (1) of this section, the Court may, for the purposes of that action, determine who is legally responsible for the fraud. 15 (3) A certificate signed by the Minister of Finance, verifying the fact of the payment of compensation out of public money, shall be prima facie proof that such payment was made. (4) All money recovered in any action pursuant to subsection (1) of this section shall be paid to the credit of the Crown Bank 20 Account. C£ 1989, No. 148, s. 64
156. Application for registration-(1) The Registrar shall receive applications to register particulars of any instrument- (a) Transferring any quota or annual catch entitlement: 25 (b) Mortgaging any quota: (c) Placing a caveat on any quota or annual catch entitlement: (d) Discharging any such mortgage or caveat. (2) Every application under subsection (1) of this section- 30 (a) Shall be made by presenting an mstrument in an approved form; and (b) Shall contain such particulars as are specified in the approved form; and (c) Shall be executed in the manner specified in the approved 35 form; and (d) Shall be accompanied by the prescribed fee (if any). Cf. 1989, No. 148, s. 64
157. When instruments deemed registered-Every instrument registered under this Act shall be deemed to be 40 Fisheries 107
registered for the purposes of this Act at the time recorded in the Register as the time at which the instrument was registered. Cf. 1989, No. 148, s. 13
158. Priority according to time of registration- 5 (1) Instruments presented for registration under this Act shall be registered in the chronol°sical order in which they are received by the Registrar; and, ror the purposes of determining the chronological order of instruments received at different places, the time shown on the Registrar's receipt shall be 10 conclusive as to the order in which an instrument was received. (2) An instruments presented by means of a computer transmission shall be deemed to be received at the time the registry computer notes it as havmg been received. (3) Registered mstruments that relate to or affect the same 15 interest in the same quota or annual catch entitlement shall have priority in the order in which they are registered. CE 1989, No. 148, s. 15
159. Registration procedure-On receipt of an application that complies with section 156 of this Act, and is 20 completed to the satisfaction of the Registrar, the Registrar shaH- (a) Record in the register the particulars set out in the instrument required by this Act to be registered and the time at which the particulars are so recorded; and 25 (b) Issue, within 2 working days after the date of registration, a certificate as to the particulars recorded pursuant to paragraph (a) of this section; and (c) Forward the certificate to the person who presented the instrument for registration and forward duplicates of 30 the certiflcate to each of the other parties to the transaction. C£ 1989, No. 148, s. 17
160. Provisions relating to defective applications for registration-(11 Where any documents lodged for 35 registration are found not to be in order for the purposes of registration, the Registrar may return those documents, or such of them as the Registrar thinks flt, to the person by whom they were lodged or, where that person is not available, to such other person as may, in the opinion of the Registrar, be entitled 40 to receive them. (2) Before returning any documents in accordance with subsection (1) of this section,- 108 ,Fisheries
(a) The Registrar shall make a copy of every document retunned; and (b) Shall ftle the copy in the Registrar's office as if the application had been accepted. (3) Where any documents are returned as provided in 5 subsection (1) of this section, those documents shall be deemed not to have been presented for restration but the fee (if any) paid to the Registrar in respect ot them shall be forfeited. (4) Where any documents have been returned as provided in subsection (1) of this section and the fee paid in respect of them 10 has been forfeited, and, within 10 days after the return of that application, the applicant lodges a new application, the fee payable in respect of the new application shall be reduced by the amount ot the fee that was forfeited. C£ 1989, No. 148, ss. 18, 20 (2), 21 (a), (b), 22 15
161. Application for correction of register-(1) Every person who presents an instrument for registration under section 156 of this Act may, within 10 days after receipt by the person of the certificate forwarded under section 159 (c) of this Act, request the Registrar to correct the record on the register 20 of the particulars set out in the instrument on the grounds that the register does not record accurately those particulars or is for any other reason incorrect. (2) Every application made under subsection (1) of this section shall be in an approved form, and shall be accompanied by the 25 prescribed fee (it any) and a copy of the certificate issued under section 159 (b) of this Act that relates to the record on the register to which the application relates. Cf. 1989, No. 148, s. 23
162. Correction of register-(1) Where, upon receipt of a 30 request under section 161 of this Act, the Registrar is satisfied that the register does not record accurately the particulars set out m the instrument to which the request relates or is for any other reason incorrect, the Registrar shall correct the register accordingly and-- 35 (a) Record on the register the nature of the correction and the time at which the correction was made; and (b) Notify the person who made the application under section 161 of' this Act, and any other person whom the Registrar considers will be affected, of the correction. 40 (2) Where the Registrar is satisfied that the register does not record accurately the particulars set out in the instrument to which the entry in the Register relates or is for any other Fisheries 109
reason incorrect, the Registrar may, of the Registrar's own motion, after notifying those persons whom the Registrar considers will be affected, correct the register accordingly and record on the register the nature of the correction and the time 5 at which the correction was made. (3) Without limiting the generality of subsection (2) of this section, the power conferred by that subsection- (a) Is exercisable where- (i) A certificate has been issued in error or an entry 10 or endorsement has been made in error: (ii) A misdescription has occurred in any entry in the register or any certificate issued under section 159 of this Act: (iii) An instrument has been obtained fraudulently 15 or wrongfully or retained fraudulently or wrongfully; but (b) Is not exercisable to the extent that the correction prejudices any bona fide purchaser for value or any mortgagee for valuable consideration. 20 Cf. 1989, No. 148, s. 24
163. Instruments not effectual until registered-(1) No instrument that purports- (a) To transfer or mortgage any quota; or (b) To transfer any annual catch entitlement; or 25 (c) To be a caveat- shall have effect until it is registered in accordance with this Part of this Act. (2) If 2 or more instruments executed by the same owner of quota or annual catch entitlement, and purporting to transfer 30 the quota or entitlement are presented at the same time to the Registrar for registration, the Registrar shall not register any of the transfers to which the instruments relate until the Registrar is satisfied that one of the instruments has priority in time over the other instrument or instruments and shall, in that case, 35 accept for registration the instrument having priority. C£ 1989, No. 148, s. 27
164. Certified copies of register to be evidence-(1) The Registrar shall, upon application and payment of the prescribed fee (if any), furnish to any person a certified copy of any record 40 in the reister, which copy- (a) In tne case of any record in respect of quota, shall be in hard copy form; or 110 Fisheries
(b) In the case of any record in respect of any annual catch entitlement, shall be in hard copy form or be furnished by means of a computer transmission. (2) Every such certified copy in hard copy form signed by or on behalf of the Registrar, and sealed with the Registrar's seal, 5 shall be received in evidence for all purposes as conclusive evidence that the particulars shown on the certified copy have been duly retered. (3) A certihed copy of any record in respect of any annual catch entitlement may be furnished by means of a computer 10 transmission and every such transmission that purports to be made by or on behalf of the Registrar shall, in the absence of evidence to the contrary, be sufficient evidence that it has been furnished by the Registrar and be received in evidence for all purposes as conclusive evidence that the particulars shown on 15 the certified copy have been duly registered. C£ 1989, No. 148, s. 30
165. Registers to be open for search-Subject to section 169 of this Act, any person may, upon payment of the prescribed fee (if any), have access to the registers for the 20 purpose of inspection during each working day at such times as the Registrar shall determine. Cf. 1989, No. 148, s. 28
166. Offences relating to fraudulently procuring registration-(1) Every person commits an offence who- 25 (a) Fraudulently procures the registration of any instrument required by this Act to be registered; or (b) Fraudulently uses any form prescribed or approved for the purposes of any of the provisions ot this Part of this Act. 30 (2) The registration of any instrument procured by fraud shall be void as between all parties to the iraud. (3) Every person who commits an offence against subsection (1) of this section is liable,- (a) In the case of an individual, to a fme not exceeding 35 $30,000: (b) In the case of a body corporate, to a fine not exceeding $200,000. Cf. 1989, No. 148, ss. 70, 128 Fisheries 111
Miscellaneous Prouisions
167. Registrar not bound to attend Court or produce register without Court order-The Registrar shall not be required to produce in any Court of law or elsewhere than in 5 the office of the Registrar any record in respect of any quota or annual catch entitlement, or any other document in the Registrar's custody as Registrar, or to attend before any Court or elsewhere to give evidence, except by order of the High Court, which order shall not be made unless the Court is 10 satisfied that the Registrar's attendance or the production of the record or document is necessary, and that the required evidence cannot be given by certified copy of the record or document.
Cf. 1989, No. 148, s. 71
15 168. Liability of ofRcers-(1) No criminal proceedings shall lie against the Registrar, or an/ employee employed to assist the Registrar in the excercise ot the Registrar's functions under this Act, for anything the Registrar or employee may do or fail to do in the course of the exercise or intended exercise of the 20 functions of the Registrar, unless it is shown that the Registrar or employee acted in bad faith. (2) Subsection (1) of this section does not apply in respect of proceedings for- (a) An offence against section 78 or section 78A or section 105 25 or section 105 of the Crimes Act 1961; or (b) The offence of conspiring to commit an offence against section 78 or section 7 BA or section 105 or section 105A of the Crimes Act 1961; or (c) The offence of attempting to commit an offence against 30 section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961. (3) Where any civil proceedings are brought against the Registrar, or any employee employed to assist the Registrar in the excercise of the Registrar's functions under this Act, for 35 anything the Registrar or employee has done or failed to do in the course of the exercise or intended exercise of the functions of the Registrar, the Registrar or employee is entitled to be indemnified by the Crown in respect of all expenses incurred by him or her in connection with the proceedings, and in 40 respect of any amount awarded against him or her in those proceedins, unless it is shown that the Registrar or employee acted, or failed to act, in bad faith.
Cf. 1989, No. 148, s. 72 112 Fisheries
169. Registrar may close register for up to 1 week to enable issue of annual catch entitlement-(1) For the purpose of this Act, a Registrar may close all or any of the relevant registers for a period not exceeding 5 working days. (2) While any register is closed during a period referred to in 5 subsection (1) of this section, the Registrar is not obliged to register any documents except those documents received for registration before the close of the register.
Vessel Registration 170. Registrar and registration ofRces-(1) The Minister 10 shall from time to time appoint a suitable person to be the Registrar of the Fishing Vessel Registry. (2) The Registrar - (a) May, but is not required to, hold office in conjunction with an appointment under the State Sector Act 1988: 15 (b) Shall hold office during the pleasure of the Minister, but otherwise shall hold office subject to such terms and conditions as may be specified in the instrument of appointment. (3) The Registry shall be located at such place or places and 20 be open to the public at such times as the Minister from time to time appoints. (4) For the purpose of this Act, the Minister may issue standards and specification relating to the Registry. C£ 1983, No. 14, s. 56; 1986, No. 34, s. 13 (1) 25
171. Fishing vessels to be registered-(1) No person shall use any vessel for commercial fishing unless the vessel is registered in that person's name in the Register of Fishing Vessels kept under this section. (2) Every application to register a fishing vessel shall be made 30 to the Registrar on an approved form and be accompanied by the prescribed fee (if any). (3) If- (a) The applicant- (i) Is not a person to whom subsection (6) of this 35 section applies; and (ii) Is the owner of the vessel; and (b) The vessel is eligible to be registered,- the Registrar shall- (c) Cause to be entered in a Register of Fishing Vessels- 40 (i) The name of the vessel; and (ii) The name of the person in whose name the vessel is registered; and Fisheries 113
(iii) The vessel identification number; and (iv) Such other particulars as may be specified by regulations made under section 302 of this Act; and (d) Issue to the person in whose name the vessel is registered 5 a certificate of registry on an approved form. (4) Every certificate of registry shall be valid for the period specified in the certificate, being a period not exceeding 5 years. (5) Registers of fishing vessels shall be public registers for the 10 purposes of the Privacy Act 1993. (6) Except with the consent of the Minister, who may refuse consent or grant it unconditionally, or on such conditions as the Minister thinks fit to impose whether related to the purposes of this Act or otherwise, no vessel shall be registered under this 15 Act if the owner- (a) Is an individual who is not ordinarily resident in New Zealand; or (b) Is a body corporate wholly or significantly controlled from outside New Zealand. 20 (7) For the purposes of subsection (6) of this section,- (a) Any person who is not otherwise ordinarily resident in New Zealand shall be deemed to be ordinarily resident in New Zealand if- (i) The person has resided in New Zealand for not 25 less than two and a half years during the period of 3 years immediately preceding the date on which the matter is to be determined; and (ii) The Minister is satisfied that the person is likely to continue to reside permanently in New Zealand: 30 (b) A body corporate shall be deemed to be wholly or significantly controlled from outside New Zealand if 25 percent or more of the voting power is held by or on behalf of an individual or individuals who is or are not ordinarily resident in New Zealand or a body or 35 bodies corporate that, by virtue of this provision, is or are wholly controlled from outside New Zealand, or a combination of such individuals and bodies corporate: (c) The term "owner" means the proprietor of the vessel; but does not include any charterer or sub-charterer (of 40 whatever type), lessee or sub-lessee, or any other person who has a right to possess the vessei in any capacity other than as proprietor. (8) Nothing in this section applies to any foreign fishing vessel licensed under Part IV of this Act to engage in fishing within the 45 exclusive economic zone. 114 Fisheries
(9) Nothing in this section or any entry in any register of fishing vessels shall confer, take away, or in any way affect the title to or interest in any fishing vessel. Cf. 1983, No. 14, ss. 28w (8), 28z (1)-(3), 57, 63 (2), (13); 1986, No. 34, ss. 10, 13 (1); 1992, No. 137, s. 4 5
172. Application of this Part to tenders-Every vessel or tender that is carried by or attached to a fishing vessel and is used or intended to be used for the purposes of commercial fishing, either separately or in conjunction with the fishing vessel, shall be deemed to be a separate fishing vessel for the 10 purposes of this Part of this Act. Cf. 1983, No. 14, s. 48; 1986, No. 34, s. 13 (1)
178. Cancellation of registration of fishing vessel-The registration of a fishing vessel under this Act shall be deemed to be cancelled where- 15 (a) The Registrar receives a request in writing from the holder of a certificate of registration that the registration be cancelled; or (b) Any holder of a certificate of registration, being an individual, dies, or, being an incorporated company, 20 is dissolved; or (c) The vessel is transferred to or becomes vested in some person other than the sole holder of a certificate of registration at the time of registration; or (d) Any share in the vessel is transferred to or becomes 25 vested in any person who did not own a share at the time of registration; or (e) The vessel is lost or destroyed; or (f) Any condition imposed under section 171 (6) of this Act is not complied with. 30 Cf. 1983, No. 14, s. 59; 1986, No. 34, s. 13 (1)
174. Taking of fish, etc., by other than New Zealand ships-(1) No person shall use any vessel that is not a New Zealand ship within the meaning of the Maritime Transport Act 1994 in fishing in the territorial sea or internal waters of New 35 Zealand except for fisheries research, experimental, sports, or recreational hshing purposes, or for the purpose of receiving fish directly from New Zealand fishing vessels, and then in each case only with the consent of the Minister and subject to such terms and conditions as the Minister may impose. 40 (2) In proceedings for an offence against this section, proof that any vessel was used for fisheries research, experimental, Fisheries 115
sports, or recreational fishing purposes with the consent of the Minister shall lie on the defendant. (3) Where any tender or similar vessel that is carried by or attached to or operated in conjunction with any other vessel is 5 used in fishing, whether that other vessel is within the territorial sea or internal waters of New Zealand or not, then, for the purposes of this section, that other vessel shall also be deemed to be used in fishing at the time and place where that tender or similar vessel is so used. 10 (4) If any vessel is used in fishing in breach of the provisions of this section, the reBistered fisher and the master of the vessel and every member oi its crew each commits an offence, and is liable,- (a) In the case of an offence committed by the owner, to a 15 fine not exceeding $250,000: (b) In the case of an offence committed by the master, to a fine not exceeding $100,000: (c) In the case of an offence committed by a member of the crew, to a fine not exceeding $5,000. 20 (5) Any vessel or fish, aquatic life, or seaweed seized or detained pursuant to this section may be dealt with in accordance with sections 201 to 207 of this Act. C£ 1983, No. 14, s. 60; 1986, No. 34, s. 13 (1); 1990, No. 29, s. 30
25 175. Possession of fish, etc., by vessels that are not New Zealand ships-(1) Notwithstanding anythin to the contrary in this Act, no offence of being in possession or fish, aquatic life, or seaweed in contravention of this Act shall be deemed to be committed by the master or any crew member of any ship that 30 is not a New Zealand ship within the meaning of the Maritime Transport Act 1994 if the fish, aquatic life, or seaweed were taken within New Zealand fisheries waters and either remain on board the vessel, or with the prior consent of the Minister, are landed in New Zealand. 35 (2) Any fish, aquatic life, or seaweed landed in New Zealand with the prior consent of the Minister may, with the prior consent oi the Minister, be sold; and, notwithstanding anything in this Act, no offence of buying or selling or being in possession of any fish, aquatic life, or seaweed shall be deemed to have 40 been committed in respect of any fish, aquatic life, or seaweed sold in accordance with that consent and in compliance with 116 Fisheries any conditions imposed by the Minister in granting that consent. Cf. 1983, No. 14, s. 61; 1986, No. 34, s. 1 (1)
PART VIII
TAIAPURE-LoCAL FISHERIES AND CUSTOMARY FISHING 5
Taiapure-Local Fisheries 176. Object-The object of sections 177 to 187 of this Act is to make, in relation to areas of New Zealand fisheries waters (being estuarine or littoral coastal waters) that have customarily been of special significance to any iwi or hapu either- 10 (a) As a source of food; or (b) For spiritual or cultural reasons,- better provision for the recognition of rangatiratanga and of the right secured in relation to fisheries by Article II of the Treaty of Waitangi. 15 Cf. 1983, No. 14, s. 54A; 1989, No. 159, s. 74
177. Declaration of taiapure-local fisheries-Subject to subsections (2) and (3) of this section, the Governor-General may, from time to time, by Order in Council published in the Gazette, declare any area of New Zealand fisheries waters (being 20 estuarine waters or littoral coastal waters) to be a taiapure-local fishery.
178. Provisions relating to order under section 177- (1) An order under section 177 of this Act may be made only on a recommendation made by the Minister in accordance with 25 sections 179 to 187 of this Act. (2) The Minister shall not recommend the making of an order under subsection (1) of this section unless the Minister is satisfied both- (a) That the order will further the object set out in section 176 30 of this Act; and (b) That the making of the order is appropriate having regard to- (i) The size of the area of New Zealand fisheries waters that would be declared by the order to be a 35 taiapure-local fishey; and (ii) The impact oi the order on the Beneral welfare of the community in the vicinity ot the area that would be declared by the order to be a taiapure-local fishery; and 40 Fisheries 117
(iii) The impact of the order on those persons having a special interest in the area that would be declared by the order to be a taiapure-local fishery; and 5 (iv) The impact of the order on fisheries management. C£ 1983, No. 14, s. 54B; 1989, No. 159, s. 74
179. Proposal for establishment of taiapure-local fishery-(1) Any person may submit to the chief executive a 10 proposal for the establishment of a taiapure-local fishery. (2) The proposal- (a) Shall contain a description of the proposed taiapure-local fishery, which description shall include particulars of the location, area, and boundaries of the proposed 15 taiapure-local ftshery; and (b) Shall describe- (i) Maori, traditional, recreational, commercial, and other interests in the proposed taiapure-local fishery: (ii) The species of aquatic life in the proposed 20 taiapure-local fishery that are of particular importance or interest. (3) The proposal shall- (a) State why the area to which the proposal relates has customarily been of special significance to an iwi or 25 hapu either- (i) As a source of food; or (ii) For spiritual or cultural reasons: (b) Set out the policies and objectives of the proposal: (c) Contain such other particulars as the chief executive 30 considers appropriate. Cf. 1983, No. 14, s. 54c; 1989, No. 159, s. 74
180. Initial consideration of proposal-(1) The chief executive shall refer to the Minister every proposal submitted to the chief executive in accordance with section 179 of this Act. 35 (2) If the Minister, after consultation with the Minister of Maori AfTairs and after having regard to the provisions of section 178 (2) of this Act, agrees in principle with the proposal, the Minister shall authorise the chief executive to publish notice of the proposal in the Gazette. 40 (3) Theproposal shall be available for public inspection for a period of not less than 2 months after the date of the publication in the Gazette of the notice of the proposal. 118 Fisheries
(4) The notice shall specify the office of the Maori Land Court in which objections to the proposal may be lodged. (5) If the Minister, after consultation with the Minister of Maori Affairs and after having regard to the provisions of section 178 (2) of this Act, does not agree in principle with the proposal, 5 the chief executive shall inform the person who made the proposal that the proposal will not be proceeding further as the Minister does not agree with it in principle. C£ 1983, No. 14, s. 541); 1989, No. 159, s. 74
181. Notice of proposal-(1) The notice authorised under 10 section 180 (2) of this Act shall be published at least twice, with an interval of not less than 7 days between each notification of the proposal, in the metropolitan newspapers and in a newspaper circulating in the locality of the area to which the proposal relates. 15 (2) A copy of the proposal shall be deposited in- (a) The office of the Maori Land Court nearest the locality of the area to which the proposal relates; and (b) The Ministry's head office; and (c) The office ot the territorial authority for the area to which 20 the proposal relates; and (d) The office of the regional council for the area to which the proposal relates. Cf. 1983, No. 14, s. 54E; 1989, No. 159, s. 74
182. Objections to, and submissions on, proposal- 25 (1) Any person or public authority, local authority, or any body specifically constituted by or under any Act, and any Minister of the Crown, which or who has any iunction, power, or duty which relates to, or which or who is or could be affected by, any aspect of the proposed taiapure-local fishery may, within 2 30 months of the publication in the Gazette of the proposal, lodge at the office of the Maori Land Court specified pursuant to section 180 (4) of this Act- (a) An objection to the proposal; or (b) Submissions in relation to the proposal; or 35 (c) Both. (2) Any such objection and any such submissions- (a) Shall identify the grounds on which the objections or submissions are made; and (b) Shall be supplemented by such particulars and 40 information as the Registrar of the Maori Land Court notifies the applicant the Registrar of the Maori Land Fisheries 119
Court considers necessary to sufficiently identify the grounds of the objection or the submissions.
Cf. 1983, No. 14, s. 545 1989, No. 159, s. 74
183. Inquiry by tribunal-(1) A public inquiry shall be 5 conducted into all objections and submissions received under section 182 of this Act. (2) The inquiry shall be conducted by a tribunal consisting of a Judge of the Maori Land Court appointed by the ChiefJudge ot the Maori Land Court. 10 (3) The ChiefJudge of the Maori Land Court may direct that the tribunal conducting the inquiry conduct it with assistance of one of more assessors to be appointed by the Chief Judge for the purpose of the inquiry. (4) In considering the suitability of any person for 15 appointment as an assessor, the Chiet Judge of the Maori Land Court shall have regard not only to that person's personal attributes but also to that person's knowledge of and experience in the different aspects of matters likely to be the subject-matter of the inquiry. 20 (5) The tribunal shall be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908 and, subject to the provisions of this Act, all the provisions of that Act, except sections 10 to 12, shall apply accordingly. (6) The person who submitted the proposal to the chief 25 executive, the Minister, or any regional council or local authority whose region or district is affected by the proposal and every body and person which or who made submissions on or objected to the proposal under section 182 of this Act, shall have the right to be present and be heard at every inquiry 30 conducted bv the tribunal under this section, and may be represented 6y counsel or duly authorised representative. (7) A tribunal appointed under this section may, if the Chief Judge of the Maori Land Courts so directs, conduct any 2 or more inquiries together notwithstanding that they relate to 35 different areas or different parts of any area. (8) On completion of the inquiry, the tribunal shall, having regard to the provisions of section 178 (2) of this Act,- (a) Make a report and recommendations to the Minister on the objections and submissions made to it, which and recommendations 40 report nnay include recommended amendments to the proposal; or (b) Recommend to the Minister that no action by taken as a result of the objections and submissions made to it. 120 Fisheries
(9) The Minister, after taking into account the report and recommendations of the tribunal and after having regard to the provisions of section 178 (2) of this Act, and after consultation with the Minister of Maori Affairs,- (a) May- 5 (i) Accept those recommendations; or (ii) Decline to accept all or any of those recommendations; and (b) Shall publish in the Gazette- (i) The report and recommendations of the 10 tribunal; and (ii) The decision of the Minister on the report and recommendations of the tribunal. (10) Subject to section 184 of this Act, no appeal shall lie from any, report or recommendation or decision made under this 15 section.
Cf. 1983, No. 14, s. 546; 1989, No. 159, s. 74
184. Appeal on question of law-Where any party to any proceedings under section 183 of this Act before a tribunal appointed under that section is dissatisfied with the report or 20 any recommendation of the tribunal as being erroneous in point of law, that party may apeal to the High Court by way of case stated for the opinion oi the Court on a question of law only, and the provisions of sections 299 and 308 of the Resource Management Act 1991 shall, with any necessary 25 modifications, apply in respect of the report or recommendation in the same manner as they apply in respect of a decision of the Planning Tribunal under the Resource Management Act 1991. C£ 1983, No. 14, s. 54H; 1989, No. 159, s. 74; 1991, 30 No. 169, s. 362
185. Power of Minister to recommend declaration of taiapure-local fishery-Where a proposal for the establishment of a taiapure-local fishery has been made under section 179 of this Act and either any proceedings in relation to 35 that proposal (including any proceedings taken under sections 182 to 184 of this Act in relation to that proposal) have been disposed of or the time for taking any such proceedings has expired, the Minister shall, if satished that a recommendation should be made under section 178 (1) of this Act, make that 40 recommendation accordingly. Cf. 1983, No. 14, s. 54I; 1989, No. 159, s. 74 Fisheries 121
186. Management of taiapure-local ftshery-(1) The Minister, after consultation with the Minister of Maori Affairs, shall appomt a committee of management for each taiapure- local fishery. 5 (2) The committee of management may be any existing body corporate. (3) The committee of management shall be appointed on the nomination of persons who appear to the Minister to be representative ot the local Maori community. 10 (4) The committee of management shall hold office at the pleasure of the Minister. Cf. 1983, No. 14, s. 541; 1989, No. 159, s. 74
187. Power to recommend making of regulations- (1) A committee of management appointed for a taiapure-local 15 fishery may recommend to the Minister the making of regulations under section 188 of this Act for the conservation and management of the fish, aquatic life, and seaweed in the taiapure-local fishery. (2) Regulations made under section 118 of this Act pursuant to 20 subsection (1) of this section may override the provisions of any other regulations made under that section. (3) Except to the extent that any regulations made under section 118 of this Act pursuant to subsection (1) of this section override or are otherwise inconsistent with the provisions of 25 any other regulations made under that section, those provisions shall apply in relation to every taiapure-local fishery. (4) Any provision of regulations made under section 118 of this Act that relates only to a taiapure-local fishery may be made only in accordance with subsection (1) of this section. 30 (5) No regulations made under section 188 of this Act shall provide for any person- (a) To be refused access to, or the use of, any taiapure-local fishery; or (b) To be required to leave or cease to use any taiapure-local 35 fishery,- by reason of the colour, race, or ethnic or national origins of that person or of any relative or associate of that person. Cf. 1983, No. 14, s. 54K; 1989, No. 159, s. 74
Customary Fishing 40 188. Regulations relating to customary fishing-(1) The Governor-General may from time to time, by Order in Council, make regulations recognising and providing for customary food 122 Fisheries gathering by Maori and the special relationship between tangata whenua and places of importance for customary food gathering (including tauranga ika and mahinga mataitai), to the extent that such food gathering is neither commercial in any way nor for pecuniary gain or trade. 5 (2) Without limiting the generality of subsection (1) of this section, regulations made under that subsection may- (a) Declare the relationship between such regulations and general fishing regulations relating to taiapure-local hsheries; and declare that the ftrst-mentioned 10 regulations shall prevail over such other regulations: (b) Empower the Minister to declare any part of New Zealand fisheries waters to be a mataitai reserve, by notice in the Gazette given after consultation by the Minister and the tangata whenua with the local community 15 and having regard to the sustainable management of the fish, aquatic life, and seaweed in the reserve: (c) Provide for such matters as may be necessary or desirable for the sustainable management of the fish, aquatic life, and seaweed in mataitai reserves, including 20 general restrictions and prohibitions in respect of the taking of fish, aquatic lite, and seaweed: (d) Empower any Maori Committee constituted by or under the Maori Community Development Act 1962, any marae committee, or any kaitiaki of the tangata 25 whenua to make bylaws restricting or prohibiting the taking of fish, aquatic life, or seaweed: (e) Empower any such Maori Committee, marae committee, or kaitiaki to allow the taking of flsh, aquatic life, or seaweed to continue for purposes which sustain the 30 functions of the marae concerned, notwithstanding any such bylaws. (3) No regulation made under this section shall be invalid by reason only that it conflicts with section 17 (2) of this Act. (4) The iollowing provisions apply in relation to bylaws made 35 under regulations made under subsection (2) (d) of this section: (a) Every restriction and every prohibition imposed on individuals by such bylaws snall apply generally to all individuals: (b) Bylaws shall not come into force until they have been 40 approved by the Minister and have been published in the Gazette:
(c) Thehave publication been approved in the Gazette under thisof bylaws subsection purportif sh be to Fisheries 123
conclusive evidence that the bylaws have been duly made and approved under this section. Cf. 1983, No. 14, s. 89 (1) (mb), (lc), (3) (b), (SA), (3® 1992, No. 121, s. 34
5 PART IX
RECORDKEEPING AND REPORTING 189. Records and returns-(1) The following persons shall keep such accounts and records and furnish to the Ministry such complete returns and information as may be required by 10 or under regulations made under this Act to assist the sustainable utilisation of any fishery resource or the conservation of the aquatic environment: (a) Holders of shing permits, special permits, or other authorities or approvals issued under this Act to take 15 fish by any method for any purpose; applicants for any such fishing permit, special permit, or other authority or approval and persons who, in relation to any such applicant, are associated persons; holders of marme farming permits or spat catching permits for 20 the time being in force that were issued under Part HIt, of the Fisheries Act 1983; and holders of approvals granted under regulations made under section 302 of this Act or under regulations made under section 89 (1) (mb) of the Fisheries Act 1983: 25 (b) Holders of quota or annual catch entitlements under this Act, and persons who, in relation to any such holders, are associated persons; and persons who hold an interest in any such quota or annual catch entitlement: 30 (c) Owners, registered fishers, and masters of vessels registered under this Act: (d) Owners and persons in charge of any premises, vessel (whether or not registered under this Act), or vehicle where fsh are received, purchased, stored, 35 transported, processed, sold, or otherwise disposed ofi (e) Persons engaged in the receiving, purchasing, transporting, processing, storage, sale, or disposal of fish including persons who are- 40 (i) Licensed to receive fish under regulations made pursuant to this Act: (ii) Licensed to export fish under the Fishing Industry Board Act 1963: 124 Fisheries
(iii) Licensed to process fish under the Meat Act 1981. (2) The chief executive may, in any particular case or class of cases, require accounts, records, returns, and information additional to those specified in regulations referred toin 5 subsection (1) of this section to be kept and furnished by any person specified in that subsection to assist the sustainable utilisation of any fisheries resources or the conservation of the aquatic environment. (3) Any return or information that is required pursuant to 10 this Act to be furnished to any particular place shall be deemed not to have been properly furnished until it has been received at that place. (4) Any return or information or agreement that is required pursuant to this Act or any regulations made under this Act to 15 be furnished in a prescribed or approved manner or form shall be deemed not to have been properly furnished until it has been completed and furnished in the prescribed or approved nnanner or forrn. (5) Except- 20 (a) In respect of a prosecution under this Act or any proceedings for the recovery by the Crown of the amount of the deemed value of any fish payable under Part 111 of this Act or any amount payable under Part XII or section 321 of this Act; or 25 (b) Pursuant to the Official Information Act 1982 or the Privacy Act 1993; or (c) Where a Court so directs,- no return or information furnished pursuant to this Act shall be disclosed. 30 (6) Nothing in subsection (5) of this section shall prohibit the chief executive or any officer authorised by the chief executive or any officer authorised by the chief executive in that behalf from communicating to- (a) Any ofRcer of the Department of Statistics any 35 information which that officer is authorised by that Department to receive and which the chief executive considers is not undesirable to disclose and is reasonably necessary to enable that officer to carry out any official duty lawfully imposed by the Statistics 40 Act 1975: Fisheries 125
(b) The Commissioner of Inland Revenue any information which the chief executive is lawfully bound to disclose.
Cf. 1983, No. 14, s. 66; 1986, No. 34, s. 13 (1); 1990, 5 No. 29, s. 33
PART X
APPOINTMENT AND POWERS OF FISHERY OFFICERS
Appointment of Fishery Clfbcers 190. Appointment of Fishery Officers-(1) There may 10 from time to time be appointed under the State Sector Act 1988 such Fishery Officers and other officers as may be required for the purposes of this Act. (2) The following shall be deemed to be a Fishery Officer for the purposes of this Act: 15 (a) Every officer in command of any vessel or aircraft of the New Zealand Defence Force: (b) Every constable: before the (c) Every person who, immediately commencement of this section, held a warrant of 20 appointment as a Fishery Officer under section 78 (1) (a) of the Fisheries Act 1983. (3) Where any person referred to in paragraph (a) or paragraph (b) of subsection (2) oi this section has, from time to time, ordered any person under his or her command to carry out, for such 25 period as he or she thinks necessary, such of the duties of a Fishery Officer as he or she may specify, the person so ordered shall, for the purpose of carrying out those duties, have all the powers of a Fishery Officer. C£ 1983, No. 14, s. 76
30 191. Appointment of Honorary Fishery Officers- (1) The chief executive may, from time to time, appoint suitable persons as Honorary Fishery Officers for a specified area, or areas, and every person so appointed shall be deemed to be a Fishery Officer for the purposes of this Act having the 35 powers of such as specified in the warrant issued to him or her under section 192 oi this Act. (2) Every person appointed as an Honorary Fishery Officer under this section- (a) Shall be appointed for such term, not exceeding 3 years, 40 as the chief executive thinks fit, and may be reappointed: 126 Fisheries
(b) May, at any time, be removed from office by the chief executive for incapacity, neglect of office, or misconduct, or may at any time resi his or her office by writing addressed to the chiei executive. (3) There may be paid to any Honorary Fishery Officer out of 5 money appropriated by Parliament for the purpose an honorarium not exceeding $1,000 in any one year. (4) No person appointed as an Honorary Fishery OfEcer under this section shall, by virtue of any honorarium paid to him or her under subsection (3) of this section, be deemed to be 10 employed by the Crown for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956. (5) Every person who, immediately before the commencement of this Act, held an appointment as an Honorary Fishery Omcer under section 77 ot the Fisheries Act 15 1983, shall continue to hold office as if he or she had been appointed under this section, and the provisions of this section shall apply as if he or she had been so appointed. (6) There may be paid to any Honorary Fishery Officer out of money appropriated by Parliament for the purpose, 20 reimbursement of actual and reasonable expenses incurred in the course of carrying out his or her powers and duties, where the chief executive has given prior authorisation and has subsequently approved the expenses.
CE 1983, No. 14, s. 77; 1987, No. 65, s. 65 (1) 25
192. Issue of warrants-( 1) The chief executive may, from time to time, issue- (a) To any Fishery Officer appointed or deemed to be appointed under this Act, a warrant authorising him or her to exercise the powers conferred on Fishery 30 Officers under this Act: (b) To any Honorary Fishery Officer appointed under this Act, a warrant specifying such of the powers conferred on Fishery Officers under this Act as he or she may exercise. 35 (2) Any warrant issued to any person appointed as an Honorary Fishery Officer may relate to all or any particular species or type of fish, aquatic life, or seaweed in any particular area or waters or generally throughout New Zealand or New Zealand fisheries waters, and may limit the powers which the 40 Honorary Fishery Officer may exercise; and, if the appointment is in respect of a particular species or type of fish, aquatic life, or seaweed or any particular area or waters, or Fisheries 127
limits the powers that the ofFIcer may exercise, the warrant shall so specify. (3) On the termination of any appointment made under section 190 or section 191 of this Act, the person whose 5 appointment has been terminated shall surrender to the chief executive any warrant issued to him or her. C£ 1983, No. 14, s. 78; 1987, No. 65, s. 65 (1); 1990, No. 31, s. 137
Powers gf Entry, Search, and Questioning 10 193. Powers of entry and search-(1) Every Fishery Officer and every other person who is deemed to be a Fishery Officer may, at all reasonable times, enter, or pass across any land and enter, examine, and search (by stopping or by opening where necessary), any vessel, conveyance of any kind, 15 premises, place, parcel, package, record, or thing, where that Fishery Officer believes, on reasonable grounds,- (a) That any offence is being or has been committed against this Act or any regulations made under this Act; and (b) That- 20 (i) Any fish taken or thing used or intended to be used in contravention of this Act or those regulations; or (ii) Any record or information required by or under this Act to be completed or furnished; or 25 (iii) Any article, record, document or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act or those regulations,- may be concealed or located or held in that vessel, 30 conveyance, premises, place, parcel, package, record, or thing. (2) Every Fishery Officer may, at all reasonable times, stop, enter, or pass across any land and enter and examine any vessel or vehicle, or enter and examine any place, or examine 35 any record, document, article, and any gear, apparatus, device, or contents of any kind therein in the course of the enforcement and administration of this Act and any regulations made under it.
Cf. 1983, No. 14, s. 79 (1) (a),(b)
40 194. Conditions relating to exercise of powers of entry, etc.-(1) A person acting in his or her capacity as a Fishery Officer shall not enter a place that is, or is within, a 128 Fisheries dwellinghouse, any Maori reservation constituted by or under the Maori Affairs Act 1953 or Part XVII of Te Ture Whenua Maori Act 1993 unless he or she is authorised in writing by a District Court Judge or Justice. (2) A District Court Judge or Justice shall not grant such 5 authority unless he or she is satisfied that the Fishery Officer has reasonable grounds for requiring entry into the dwellinghouse or reservation. (3) The following provisions apply in relation to every authorisation under subsection (2) ot this section: 10 (a) The authorisation shall be directed either to any Fishery Officer by name or generally to every Fishery Officer, and in either case may be executed by any Fishery Officer: (b) The authorisation may be given on an application made 15 in writing on oath or on an application made on oath orally, if the District Court Juage or Justice considers it appropriate to do so; and, in such a case, that Judge or Justice shall make a written note of the grounds of the application: 20 (c) The authorisation may be executed at any time by day or by night: (d) It is the duty of every person exercising the power of entry conferred by the authorisation to have the authorisation with him or her and to produce it if 25 required to do so. Cf. 1983, No. 14, s. 79 (2), (2A); 1991, No. 14, s. 23
195. Power to question persons and require production of documents-Every Fishery Officer may, at all reasonable times, question any person and- 30 (a) Require the master of any vessel, or any other person, to give any explanation or information concernin that vessel, or any place or thing, or any fish, hshing method, gear, apparatus, record, document, article, device, or thing; and 35 (b) Require such persons to produce any permit, authority, licence, or certificate issued in respect of that vessel, person, or thing where- (i) That Fishery Officer believes on reasonable grounds that such person has been engaged in taking 40 or selling fish; or (ii) That Fishery Officer believes on reasonable grounds that an offence against this Act or any regulations made under it is being or has been Fisheries 129
committed and believes on reasonable grounds that such person has purchased or is or has been in possession of fish. Cf. 1983, No. 14, s. 79 (1) (c)
5 Power Of Arrest 196. Power of arrest-(1) Every Fishery Officer may, at all reasonable times, where he or she finds any person offending against this Act, or any reulation made under it, order that person to forthwith desist trom offending. 10 (2) Every Fishery Officer may, at all reasonable times, where he or she believes on reasonable grounds that any person may have committed an offence against the Act, or any regulations made under it, request that person to supply to that officer the person's real first name or given name, surname, date of birth, 15 actual place of residence, and occupation, and where the Fishery Officer believes on reasonable Srounds that any of those details are false, such verification oi those details as it is reasonable in the circumstances to require the person to provide. 20 (3) Where any person continues to offend, after being required to desist, or refses to comply with a request under subsection (2) of this section, the Fishery Officer may arrest that person. (4) Where a Fishery Officer arrests a person pursuant to 25 subsection (3) of this section,- (a) The officer shall cause the person to be delivered into the custody of a constable as soon as practicable; and (b) If the person so delivered into custody is released by a constable without bail pursuant to section 19A of the 30 Summary Proceedings Act 1957, the duties under subsections (3) to (5) of that section relating to the laying and filing of an information shall be the duties ot a Fishery Officer and not of a constable. Cf. 1983, No. 14, s. 79 (1) (d), (5A); 1990, No. 29, s. 37 (4)
85 Power to Give Directions 197. Power to give directions to master-Every Fishery Offlcer may, at all reasonable times, where he or she believes that a vessel is being or has been used in fishing in contravention of the provisions of this Act, or any rezilations 40 made under it, or the conditions of any certincate or registration, permit, approval, or licence issued in respect of the vessel, require the master forthwith to discontinue nshing and 130 Fisheries to take the vessel back to the port or place to which it belongs, or to such nearer port or place nominated by the master and agreed to by the Fishery Officer. Cf. 1983, No. 14, s. 79 (1) (e)
Power to Use Reasonable Force 5
198. Power to use reasonable force in exercise of certain powers-Every Fishery Officer is justified in using such force as may be reasonably necessary to enable the Fishery Officer to exercise any power conferred by this Act.
Power to Take Copies of Documents 10 199. Power to take copies of documents-Any Fishery Officer lawfully exercising his or her powers under this Part of this Act may make or take copies of any record or document, and for this purpose may take possession of and remove from the place where they are kept, for such period of time as is 15 reasonable in the circumstances, any such record or document. Cf. 1983, No. 14, s. 79 (3)
200. Power to enter, search, and question etc. for purpose of ascertaining financial status of certain persons-Any Fishery Officer may, in order to ascertain a 20 defendant's financial status for the purpose of assisting the Crown to make submissions to the Court on sentencing, exercise all or any of the powers conferred by sections 193 and 195 of this Act as if those provisions applied.
Provisions Relating to Seizure 25 201. Powers of seizure- (l) A Fishery Officer may seize- (a) Any vessel, vehicle or other conveyance, fishing gear, implement, appliance, material, container, goods, or equipment which he or she believes on reasonable grounds is being or has been used or is intended to be 30 used in the commission of an offence against this Act or any regulations made under it: (b) Any fish which he or she believes on reasonable grounds are being or have been taken, killed, transported, bought, sold, or found in the possession of any 35 person, in contravention of this Act or any resulations made under it; or any fish with which such hsh have been intermixed: (c) Any article, record, document, or thing which he or she believes on reasonable grounds is evidence of the 40 Fisheries 131
commission of an offence against this Act or any regulations made under this Act. (2) Any property seized under subsection (1) of this section shall be delivered into the custody of the chief executive. 5 (3) The decision whether or not to lay any information or charge in respect of an alleged offence for which any property is seized under subsection (1) of this section shall be made as soon as reasonably practicable after the property is seized, taken possession oi, or detained. 10 Cf. 1983, No. 14, s. 80 (1), (2); 1990, No. 29, s. 38 (1)
Prouisions Relating to Seized Property 202. Chief executive may release seized property under bond-(1) The chief executive may, at any time until an information or charge is laid in respect of the alleged offence 15 for which the property was seized, on application by- (a) The person irom whom the property was seized; or (b) The owner or person entitled to the possession of the property seized,- release the property to any such person under bond in such 20 sum and under such sureties and conditions (if any) as the chief executive may specify. (2) Where any person to whom property is released under subsection (1) of this section fails to comply with the conditions of any bond or with any condition specified by the chief 25 executive,- (a) The property may be reseized at any time at the direction of the chief executive; and (b) The provisions of this section shall thereupon apply to the property as if it had been seized pursuant to section 30 201 of this Act; and (c) The chief executive may, in the case of failure to comply with the conditions of any bond, aply to a Court presided over by a District Court Juage for an order tor estreat of the bond; and 35 (d) Where the chief executive so applies the Registrar shall fix a time and place for the hearing of the application, and shall, not less than 7 days before the time fixed, cause to be served on every person bound by the bond a notice of the time and place so fixed; 40 and (e) If on the hearing of any such application it is proved to the satisfaction of the Court that any condition of the bond has not been kept, the Court may make an 132 Fisheries
order to estreat the bond to such an amount as it thinks ht to any person bound thereby on whom notice is proved to have been served in accordance with this subsection; and (f) Any penalty payable in accordance with this subsection 5 shall be recoverable as if it were a fine.
C£ 1983, No. 14, s. 80 (3), (3A); 1990, No. 29, s. 38 (2)
203. Seized property to be held by the Crown if not released-Subject to section 202 (1) of this Act, all property seized pursuant to section 201 of this Act and the proceeds from 10 the sale of any such property pursuant to section 206 of this Act, except where such property or proceeds have been forfeited to the Crown pursuant to section 205 of this Act, shall be held in the custody of the Crown until- (a) A decision is made not to lay any information or charge in 15 respect of the alleged offence for which the property was seized; or (b) Where such a charge or information is laid, upon the completion of proceedings in respect of the alleged offence for which the property was seized, or such 20 sooner time as the Court may determine.
CE 1983, No. 14, s. 80 (6)
204. Crown to release seized property in certain circumstances-(1) Where any information or charge has been laid in respect of the alleged offence for which the 25 property was seized pursuant to section 201 of this Act, and that property remains in the custody of the Crown, the Court may at any time, on application by- (a) The person irom whom the property was seized; or (b) The owner or person entitled to the possession of the 30 property seized,- release the property to any such person, and any such release may be subject to such sureties and conditions as the Court may specify. (2) Subject to section 207 of this Act, but notwithstanding any 35 other provisions of this section, where any property has been seized under section 201 of this Act, then- (a) On a decision being made not to lay an information or charge; or (b) On the acquittal of any person charged with an offence 40 for which the property is subject to forfeiture- Fisheries 133
such property, or the proceeds from the sale of such property, shall iorthwith be released from the custody of the Crown. CE 1983, No. 14, s. 80 (6Ah (9); 1990, No. 29, s. 38 (2)
205. Seized property forfeited to the Crown if 5 ownership not established-(1) Where the ownership of any property cannot at the time ot seizure be ascertained, the property seized shall be forfeit to the Crown and shall be disposed of as directed by the chief executive after 90 days from the date of seizure if, within that time, it has not been 10 possible to establish the ownership of the property. (2) Where there is a dispute as to the ownership of any property that has been seized pursuant to this Act, the chief executive may apply to a Court for directions as to the holding and disposal of the property and the Court may give such 15 directions accordingly. Cf. 1983, No. 14, s. 80 (5)
206. Chief executive may sell perishable seized property-Where, in the opinion of the chief executive, any hsh or other article seized pursuant to section 201 of this Act 20 may rot, spoil, or otherwise perish, the chief executive may arrange for its disposal in such manner and for such price (if any) as the chief executive may determine. C£ 1983, No. 14, s. 80 (4)
207. Protection of the Crown-(1) The Crown shall not be 25 liable to any person for any spoilage or deterioration in the quality of any fish seized under section 201 of this Act or for any loss caused by its disposal pursuant to section 206 of this Act. (2) Notwithstanding any other provisions in this Part of this Act, a Fishery Officer who at the time of seizure returns to the 30 water any fish seized under section 201 of this Act that he or she believes to be alive, shall not be under any civil or criminal liability to the person from whom the fish or aquatic life was seized in the event of a decision being made not to lay an information or charge in respect of the fish or aquatic life, or of 35 the person being acquitted of the charge. CE 1983, No. 14, s. 80 (8), (10)
General Powers
208. General powers-(1) Every Fishery Officer may, at all reasonable times, do all such acts and things and give such 134 Fisheries directives as are reasonably necessary for the purposes of exercising any of his or her powers under this Act. (2) The powers of a Fishery Officer are also exercisable in respect of-- (a) Any fishing vessel other than a foreign fishing vessel that 5 is beyond the outer limits of the exclusive economic zone; and (b) Any person on board any such fishing vessel. Cf. 1983, No. 14, s. 79 (1) (f)
Prouisions Relating to Exercise of Powers 10 209. Protection against self-incrimination-Nothing in this Part of this Act shall be construed so as to require any person to answer any question tending to incriminate himself or herself. Cf. 1983, No. 14, s.79 (3) 15
210. Fishery Ofacer to identify himself or herself- Every Fishery Officer exercising any power conferred by this Part of this Act shall identify himself or herself and produce evidence that he or she is a Fishery Officer to any person on or in the land, vehicle, vessel, premises, or place or claiming an 20 interest in the things on or in or in respect of which the power is exercised, who questions the right of the Fishery Officer to exercise that power. Cf. 1983, No. 14, s.79 (5)
211. Production of warrant to be suiTicient authority to 25 act-The production by any Fishery Officer of any warrant issued to him or her under section 192 of this Act shall, until the contrary is proved, be sufficient authority for any such officer to do any thing which he or she is authorised by this Act, or any regulations made under it, to do. 30 C£ 1983, No. 14, s. 79 (6)
212. Persons to assist Fishery Officer-(1) Any Fishery Officer exercising any of the powers conferred on him or her by this Act may do so with the aid of such assistants as he or she considers necessary for the purpose. 35 (2) All persons if called upon to assist any Fishery Officer in the exercise of any of the powers conferred on him or her by this Act, are hereby authorised to render such assistance. C£ 1983, No. 14, s. 81 Fisheries 135
213. Fish unfit for human consumption to be condemned and vessel prohibited-(1) If a Fishery Officer is of the opinion on reasonable grounds that any fishing vessel, or any equipment on that vessel, used for the taking, storing, or 5 processing of fish, is by reason of its insanitary, defective, or other condition unsuitable for the taking, storing, or processing of fish for human consumption he or she may, by writing addressed to the master of the vessel, prohibit the use of the vessel or equipment for the aforesaid purposes either 10 absolutely, or until the insanitary, defective, or other condition has been remedied to his or her satisfaction. Any prohibition under this subsection may be expressed to take effect as from a date to be stated by the Fishery Officer. (2) A Fishery Officer shall, by writing addressed to the master 15 of the vessel, condemn any fish intended for human consumption found on that vessel where he or she is satisfied that the fish, by reason of any defect in the taking, handling, or processing, or any insanitary condition of the vessel or equipment, is unfit for human consumption, and the fish so 20 condemned shall be disposed of in such manner as the Fishery Officer may direct. C£ 1983, No. 14, s. 82
214. Protection of Fishery Officer from liability- (1) Any Fishery Officer who- 25 (a) Examines or renders ineffective any net, line, pot, gear, tackle, or device which the officer has reasonable cause to believe has been set for the purpose of taking fish, aquatic life, or seaweed in contravention of this Act or any regulations made under it, or of any 30 conditions of any permit, authority, or licence issued in respect of the hshing; or (b) Does any act in pursuant of this Act, or any regulations made under it, or omits to do any act required by this Act or by any regulations made under it- 35 shall not be under any civil or criminal liability as a result of that act or omission on the ground of want of jurisdiction or mistake of law or fact, or any other ground, unless he or she has acted or omitted to act in bad faith, or without reasonable
cause. 40 (2) The Crown shall not be held directly or indirectly liable for any such act or omission of any such officer, unless the 136 Fisheries officer himself or herself would incur liability for the act or omission.
Cf. 1983, No. 14, s. 83
215. Complaints against Fishery OfRcers-(1) Any one who believes that any Fishery Officer is guilty of serious 5 misconduct in the exercise or alleged exercise of any power conferred on Fishery Officers by this Part of this Act has the right to lodge with the chief executive a complaint in writing under this section. (2) On receiving a complaint in writing under this section, the 10 chief executive shall, where he or she is satisfied that the complaint is not frivolous or vexatious and would if proven amount to serious misconduct, appoint an independent person, being a person who has held a practising certificate as a barrister or solicitor for at least 7 years, to inquire into the 15 complaint and report in accordance with subsection (5) of this section. (3) The chief executive may, in order to satisfy himself or herself as to the nature of the complaint, require further particulars from the complainant. 20 (4) Every person appointed under subsection (2) of this section has the same powers as are conferred on a Commission of Inquiry by the Commissions of Inquiry Act 1908 and all the provisions of that Act, except sections 11 and 12 (which relate to costs), shall apply accordingly. 25 (5) Every person appointed under subsection (2) of this section shall furnish a copy of his or her report to the chief executive and to the Minister.
Examiners
216. Examiners-(1) The chief executive may, from time to 30 time, designate any oiticer to be an examiner to assist in the enforcement of Part IX or section 223 or section 224 of this Act, and of regulations referred to in Part IX of this Act, by examining and verifying the keeping and contents of accounts, records, returns, and information required to be kept or made under 35 those sections or regulations. (2) Where the chief executive does not consider it practicable or appropriate to designate an ofiRcer or officers under subsection (1) of this section by reason of- (a) The nature of the duties to be undertaken; or 40 (b) The duration or extent of the duties to be undertaken- the chief executive may engage any person to be an Fisheries 137
examiner to perform the duties specified in subsection (1) of this section. (3) Each examiner appointed under this section shall be issued with a warrant ot appointment by the chief executive 5 and shall have such of the powers of a Fishery Officer as are specified in that warrant. (4) No person engaged under subsection (2) of this section shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or the Government 10 Superannuation Fund Act 1956 by reason of the person holding the office of examiner. Cf. 1983, No. 14, s. 67B; 1986, No. 34, s. 13 (1); 1990, No. 29, s. 33
Obseroer Programme 15 217. Observer programme established-(1) For the purpose of ensuring the collection of reliable and accurate information on fisheries resources, fishing (including catch and effort information), and the effect of fishing on the aquatic environment for fisheries research and management purposes 20 and for enforcement purposes, there shall be an observer programme for fishing vessels under which observers with specified powers may be placed on specified fishins vessels to observe tne fishing activities conducted on and trom those vessels. 25 (2) The observers may report to the chief executive on- (a) The species, numbers, size, age, and condition of fish taken: (b) The methods by which, the areas in which, and the depths at which fish are taken: 30 (c) The effects on fish of the methods used to take it: (d) The operations of the vessel: (e) Any other matter that may assist the chief executive or the Minister to obtain, analyse, or verify information for sheries management and related purposes, 35 including research and enforcement. Cf. 1983, No. 14, s. 67c; 1986, No. 34, s. 13 (1)
218. Appointment of observers-(1) The chief executive may from time to time engage any person to be an observer for the purposes of the observer programme under section 217 (1) of 40 this Act. 138 Fisheries
(2) No person who is a Fishery Officer or who has any of the powers ot a Fishery Officer shall be engaged under subsection (1) of this section. (3) No person shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or 5 the Government Superannuation Fund Act 1956 by reason of that person holding the office of observer. C£ 1983, No. 14, s. 671); 1986, No. 34, s. 13 (1)
219. Chief executive to give notice of intention to place observer on vessel-(1) The chief executive shall give 10 to the owner or master of any fishing vessel reasonable notice of the chief executive's intention to place an observer or more than one observer on the vessel. (2) Every owner, master, and fishing permit holder to whom notice is given under subsection (1) of this section each commits 15 an offence where the vessel to which the notice relates puts to sea when an observer is to be placed on the vessel- (a) Without an observer on the vessel; or (b) Other than with the permission of the chief executive and subject to and in accordance with any conditions 20 imposed by the chief executive in giving that permission. (3) Every person who commits an offence against subsection (2) of this section is liable to a fine not exceeding $100,000. (4) For the purposes of this section, the term "reasonable 25 notice" means notice in writing that specifies a date, being not earlier than 14 days after the date of the notice, on or after which the vessel is not to put to sea without an observer on board; or such other period or type of notice as is agreed to by the owner or master of the vessel. 30
Cf. 1983, No. 14, s. 67E; 1986, No. 34, s. 13 (1)
220. Powers of observers-(1) The master of any vessel on which an observer is placed under section 219 of this Act shall allow the observer, at all reasonable times, having regard to the fishing operations of the vessel,- 35 (a) To have access to the fishing gear and the storage and processing facilities on the vessel: (b) To have access to the catch (including incidental catch of seabirds and aquatic life) on the vessel: (c) To have access to the bridge and the navigation and 40 communications equipment of the vessel: Fisheries 139
(d) To have access to the logs and records of the vessel, whether required to be carried and maintained by or under this Act or otherwise: (e) To receive and transmit messages and to communicate 5 with the shore and other vessels. (2) Every person on board a vessel, on which there is an observer, commits an offence if that person fails to provide reasonable assistance to enable the observer to exercise powers under subsection (1) of this section, or who hinders or prevents 10 the observer exercising those powers. (3) Every person who commits an offence against subsection (2) of this section is liable to a fine not exceeding $250,000. Cf. 1983, No. 14, s. 67F; 1986, No. 34, s. 13 (1)
221. Food and accommodation to be provided for 15 observers-The owner of any fshins vessel on which an observer is placed shall be responsible tor providing food and accommodation for the observer at a standard specified by the chief executive. Cf. 1983, No. 14, s. 67G (1); 1986, No. 34, s. 13 (1)
20 222. Supervision by observers of transhipments, dumping of fish, and operation of greenweight conversion factors--(1) Where-- (a) An observer is on board a vessel- (i) From which any fish are transhipped to another 25 vessel; or (ii) From which any fish subject to a quota management system are returned to or abandoned in the sea; or (iii) In respect of which any greenweight conversion 30 factor certincate has been given pursuant to section 4 (3) of this Act; and (b) But for the presence and supervision of an observer (whether required by any provision of this Act or regulation made or notice given under this Act, or by 35 any term or condition imposed by the chief executive in relation to any consent, approval, or certificate), the transhipment or dumping would be in contravention of section 233 or any other provision of this Act or any regulation made under it, or the 40 conversion factor could not be applied within the terms and conditions of the certificate,- the master of the vessel shall supply such information, and shall allow the observer to carry out such inspections of the vessel, 140 Fisheries fish taken or processed, and documents, as the observer may require for the purpose of supervising the transhipment, dumping, or processes relevant to determining any greenweight conversion factor. (2) Where an observer is supervising any transhipment of fish 5 from one vessel to another, the master of each vessel involved in the transhipment shall allow the observer on board the vessel, and shall supply such information, and allow the observer to carry out such inspections, as the observer may require for the purpose of supervising the transhipment. 10 (3) Any relations made under this Act may prescribe fees in respect oi the provisions of supervision by an observer in circumstances referred to in subsection (1) of this section, and may provide for the cost of food and accommodation of the observer, while on the vessel for any period, to be met by the 15 owner of the vessel.
Cf. 1983, No. 14, s. 67H; 1990, No. 29, s. 36
Disposal of Fish 223. Disposal of fish by commercial fishers-(1) Except as providea in subsection (2) of this section, every commercial 20 fisher may sell or otherwise dispose of fish taken by the commercial fisher in that capacity or in the commercial fisher's possession in that capacity only to a licensed fish receiver or to the Crown. (2) Any commercial fisher may sell or otherwise dispose in 25 any one transaction of not more than- (a) Ten kilogrammes of finfish; or (b) Six kilogrammes of shellfish other than shellfish of Class Crustacea; or (c) Three kilogrammes of shellfish of Class Crustacea; or 30 (d) Any combination of such ftsh within those limits- taken by the commercial fisher to any person who is not a licensed fish receiver where the transaction takes place on or in the vicinity of the vessel used by the commercial fisher to take the fish or at some other place approved by the chief executive. 35 (3) A commercial fisher shall not enter into more than one such transaction with the same person within any 24-hour period. (4) Every commercial fisher who sells or otherwise disposes of any fish under the authority of subsection (2) of this section shall, 40 at the time of the transaction, make such records of the transaction as the commercial fisher is required to make under section 189 of this Act. Fisheries 141
(5) This section does not apply in respect of a transhipment carried out in accordance with conditions imposed by the chief executive under section 233 of this Act. Cf. 1983, No. 14, s. 67; 1986, No. 34, s. 13 (1); 1990, No. 5 29, s. 34
224. Restrictions on purchase or acquisition of fish by certain persons-(1) No licensed sh receiver may purchase or otherwise acquire or be in possession of any nsh, except fish- 10 (a) Taken by the licensed fish receiver in a capacity as a commercial flsher; or (b) Purchased, acquired, or obtained from- (i) A commercial fisher; or (ii) Another licensed fish receiver; or 15 (iii) A foreign fishing vessel where the fish was landed in accordance with permission granted under section 175 of this Act; or (iv) A dealer in fish; or (v) The Crown; or 20 (vi) The holder of a permit issued under section 67j of the Fisheries Act 1983; or (vii) The holder of a lease or licence under the Marine Farming Act 1971; or (viii) The holder of a licence issued under the 25 Freshwater Fish Farming Regulations 1983. (2) No person, other than- (a) A commercial fisher; or (b) The holder of a permit issued under section 67 of the Fisheries Act 1983; or 30 (c) The holder of a lease or licence under the Marine Farming Act 1971; or (d) The holder of a licence issued under the Freshwater Fish Farming Regulations 1983; or (e) A licensed hsh receiver or a dealer in fish; or 35 (f) The Crown,- may purchase or otherwise acquire or be in possession of any fish ior the purposes of sale in any form, unless the person purchased or acquired the fish from- (g) A commercial fisher in a transaction referred to in 40 section 223 (2) of this Act; or (h) A licensed fish receiver or a dealer in fish; or (i) The Crown. (3) No commercial fisher shall- (a) Purchase any fish for the purpose of sale; or 142 Fisheries
(b) Possess any fish for the purpose of sale except that fish taken in the person's capacity as a commercial fisher. (4) Any dealer in fish may sell any fish acquired by that dealer from a licensed fish receiver, or in a transaction referred to in section 223 (2) of this Act, to another dealer in fish or to any 5 licensed fish receiver. (5) Nothing in this section applies in respect of whitebait. Cf. 1983, No. 14, s. 67A; 1986, No. 34, s. 13 (1); 1991, No. 149, s. 22
PART XI 10
OFFENCES AND PENALTIES
Ofences 225. General offences-(1) Every person commits an offence who acts in contravention of or fails to comply with any provision of this Act, or any notice, direction, restriction, 15 requirement, or condition given, made, or imposed under this Act, not being a requirement or obligation to pay a sum of money. (2) Every person who commits an offence against subsection (1) of this section is liable to the appropriate penalty specified in 20 section 251 of this Act.
Cf. 1983, No. 14, ss. 93,107; 1986, No. 34, s. 27 (1); 1990, No. 29, s. 51
226. Obstructing Fishery Officers-(1) Every person commits an offence who- 25 (a) Resists or obstructs, or incites or encourages any person to restrict or obstruct,- (i) Any Fishery Officer while in the execution of the Fishery Officer's powers or duties; or ) Any person lawfully assisting the Fishery 30
(b) UsesOficer; threatening or language or behaves in a threatening manner towards- (i) Any Fishery Officer, while in the execution of the Fishery Officer's powers or duties; or 35 (ii) Any other person lawfully assisting the Fishery Officer; or (c) Fails to comply with the lawful requirements of any Fishery Officer; or (d) Furnishes to any Fishery Officer any particulars that are 40 false or misleading in any material respect; or Fisheries 143
(d) Personates or falsely claims to be a Fishery Officer or who falsely claims to be a person lawfully assisting the Fishery Officer. (2) For the purposes of subsection (1) of this section, but 5 without limiting that subsection, every person who refuses to allow any Fishery Officer, or any person lawfully assisting the Fishery Officer, to exercise any of the powers conferred on the Fishery Officer by this Act, any regulations or notice made under this Act, or any notice given under this Act or those 10 regulations, shall be deemed to be obstructing that Fishery Officer or person. (3) Every person who commits an offence against subsection (1) of this section is liable to a fine not exceeding $250,000. Cf. 1983, No. 14, ss. 95,107; 1986, No. 34, s. 27 (1); 1990, 15 No. 29, s. 51
227. Neglect or refsal to supply particulars, and improper divulging of information-(1) Every person commits an offence who- (a) Fails to provide any accounts or records or who neglects 20 or refuses to furnish any records, return, or information when lawfully requested to do so pursuant to this Act or any regulation made or notice given under this Act: (b) Makes any mcorrect or misleading statement or omits any 25 information in any communication, application, record, or return for the purposes of this Act or any regulation made or notice given under this Act. (2) Every person who commits an offence against subsection (1) of this section is liable to a fine not exceeding $250,000. 30 Cf. 1983, No. 14, ss. 96,107; 1986, No. 34, s. 27 (1)
228. Buying, selling, or possessing fish contrary to Act-(1) Every person commits an offence who buys, sells, or has in possession any fish taken in New Zealand fisheries waters or elsewhere in contravention of this Act or any regulation 35 made or notice given under this Act. (2) Every person who commits an offence against subsection (1) of this section is liable to a fme not exceeding $250,000. (3) For the purposes of subsection (1) of this section, fish shall be deemed to be sold if it forms part of a meal and either- 40 (a) Payment for that meal or any part of the meal is made; or (b) The meal is supplied to any person (whether in accordance with the terms of the contract of service 144 Fisheries
or otherwise) who is emloyed by the person by whom the meal is supplied.
Cf. 1983, No. 14, ss. 97, 107; 1986, No. 34, s. 27 (1)
229. Using hazardous substance to catch or destroy fish-(1) Every person commits an offence who for the purpose 5 of taking or destroying any fish uses in any water any hazardous substance or narcotic substance or any electric fishing device. (2) Subsection (1) of this section does not apply to actions taken by a Fishery Officer, or any person authorised in writing by the 10 chief executive to use an approved hazardous substance, narcotic substance, or electric hshing device. (3) Every person who commits an offence against subsection (1) of this section is liable to a fine not exceeding $250,000.
CE 1983, No. 14, ss. 98, 107; 1986, No. 34, s. 27 (1) 15
230. Knowingly permitting premises to be used for offence against Act-(1) Every person commits an offence who knowingly permits any premises, vessel, or vehicle to be used for the purpose of the commission of an offence against this Act or any regulation made or notice given under this Act. 20 (2) Section 241 (1) of this Act does not apply in respect of any proceedings for an offence against subsection (1) of tms section. (3) Every person who commits an offence against subsection (1) of this section is liable to a ftne not exceeding $250,000.
C£ 1983, No. 14, ss. 98A, 107; 1990, No. 29, s. 45 25
231. Ownership and possession of fish-(1) Subject to the provisions of any agreement to the contrary that is- (a) In the prescribed torm or an approved form; and (b) Signed by the owner of the vessel and the other party or parties to the agreement; and 30 (c) Furnished to a Registrar before the fish in question are taken,- all fish (except sports fish) taken by any means from a vessel shall, for the purposes of this Act and any resulations made or notice given under this Act, be deemed to be owned by the 35 owner of the vessel. (2) For the purpose of this section, fish shall be deemed to be taken from a vessel when taken with any line, or in any net, pot, trap, or other contrivance used or set from the vessel or Fisheries 145
from any tender or similar vessel carried by or attached to the vessel.
Cf. 1983, No. 14, s. 99; 1986, No. 34, s. 27 (1); 1990, No. 31, s. 143; 1991, No. 149, s. 27
5 232. Fish on registered vessel deemed to have been caught in New Zealand-(1) For the purposes of this Act and any regulation made or notice given under this Act, all fish on board, landed from, or transferred to or from a fishing vessel registered under this Act or any New Zealand ship (as defined 10 in section 2 (1) of the Maritime Transport Act 1994), whether found on board, landed, or transferred within New Zealand or elsewhere, shall be deemed to have been taken within New Zealand fisheries waters. (2) Subsection (1) of this section does not apply in respect of fish 15 taken by any vessel with the prior approval oi the chief executive and in accordance with any conditions imposed by the chief executive.
Cf. 1983, No. 14, s. 100; 1986, No. 34, s. 27 (1)
233. Fish taken in New Zealand fisheries waters must 20 be landed in New Zealand-(1) Every person commits an offence who lands any fish taken in New Zealand fisheries waters at any place outside New Zealand unless the landing of the fish outside New Zealand has the prior approval of the chief executive and is in accordance with any conaitions imposed by 25 the chief executive. (2) For the purposes of subsection (1) of this section, fish shall be deemed to have been landed at a place outside New Zealand if- (a) The fish is landed in New Zealand but- 30 (i) Is not delivered to a licensed fish receiver; and (ii) Is loaded aboard a vessel or aircraft for export from New Zealand; or (b) Either- (i) The fish is transported beyond the outer lirnits of 35 the exclusive economic zone by the vessel that took it;
or (ii) The fish is transferred from that vessel to another vessel and then transported (whether in that vessel or any other vessel) beyond the outer limit of 40 the exclusive economic zone. (3) Conditions imposed under subsection (1) of this section may relate to the vessel that took the fish, any vessels which 146 Fisheries received it, and the manner and conditions under which the transfer or export may take place. (4) Subsection (1) of this section does not apply where the fish were lawfully taken by the person using a foreign fishing vessel. (5) Every person who commits an offence against subsection (1) 5 of this section is liable to a fine not exceeding $250,000.
Cf. 1983, No. 14, s. 101; 1986, No. 34, s. 27 (1); 1990, No. 29, s. 47
234. Fish on registered vessel deemed to have been taken for the purposes of sale-(1) For the purposes of this 10 Act and any regulation made or notice given under this Act, all flsh on board or unloaded from any hshing vessel registered under this Act shall, in the absence of proof to the contrary, be deemed to have been taken for the purposes of sale. (2) This section does not apply in respect of fish intended to 15 be used as bait and are not intended for sale.
Cf. 1983, No. 14, s. 102; 1986, No. 34, s. 27 (1)
235. Fish or licensed premises or premises where food sold deemed to have been taken for purposes of sale- (1) For the purposes of this Act and any regulation made or 20 notice given under this Act, all fish in any premises owned or operated by any licensed fish receiver shall, in the absence of proof to the contrary, be deemed to have been taken for the purposes of sale. (2) For the purposes of this Act and any regulation made or 25 notice given under this Act, all fish in any premises where food is sold, prepared for sale, stored, or processed, shall, in the absence of proof to the contrary, be deerned to have been taken for the purposes of sale.
Cf. 1983, No. 14, s. 103; 1986, No. 34, s. 27 (1) 30
236. Fish in excess of certain quantities deemed to have been acquired or possessed for purposes of sale- (1) Except as provided in subsection (2) of this section, for the purposes of this Act and any regulation made or notice Siven under this Act, any person who is found in possession ot any 35 fish of an amount or quantity exceeding 3 times the amateur individual daily limit (it any) prescribed in respect of that fish shall, in the absence of proof to the contrary, be deemed to have acquired or to possess the flsh for the purposes of sale. Fisheries 147
(2) Subsection (1) of this section does not apply to any person who is in possession of fish taken under the authority of regulations made under section 188 of this Act. Cf. 1983, No. 14, s. 103A; 1990, No. 29, s. 49; 1992, 5 No. 121, s. 35
237. Dockside monitoring-Without limiting the general power to make regulations conferred by section 302 of this Act, the Governor-General may from time to time, by Order in Council, make regulations for all or any of the following 10 purposes: (a) Requiring that fish be landed at designated landing sites or designated weighing stations at specified times with an approved person present: (b) Providing for the designation of sites by the chief 15 executive as designated landing sites or designated weighing stations, and providing for different sites to be so designated for different classes of vessel or species or classes of stocks: (c) Requiring owners or masters of fishing vessels, or permit 20 holders, or any of them, to notify specified persons of the intention to land sh: (d) Providing for the approval of persons to monitor and verify the accuracy of the weight and species type recorded in the catch, effort, and landing returns (or 25 other prescribed returns), and for the resignation and removal of such persons from such offtce: (e) Empowering approved persons to give directions as to the manner in which fish is to be presented for weighing: (f) Prescribing the form of documents to be completed by 30 approved persons, the time and manner in which such documents are to be completed, and the persons to whom completed documents are to be sent: (g) Empowering the chief executive to require, prescribe, or empower anything that may be required, prescribed, 85 or empowered under paragraphs (a) to (f) of this section: (h) Conferring on persons approved under paragraph (d) of this section such protection from civil and criminal liability as is conferred on Fishery Officers by section 207 of this Act or as may be specified in the 40 regulations.
Proceedings, Defences, Etc. 238. Proceedings for offences-(1) Any offence against this Act or any regulation made under this Act that is 148 Fisheries committed within New Zealand fisheries waters shall be deemed to have been committed in New Zealand. (2) Notwithstanding section 14 of the Summary Proceedings Act 1957, an information in respect of any offence against this Act or any regulation made under this Act may be laid- 5 (a) In the case of an offence in respect of which the maximum hne does not exceed $5,000, at any time within 12 months after the time when the matter of the information arose: (b) In the case of an offence in respect of which the 10 maximum fine exceeds $5,000 but does not exceed $100,000, at any time within 2 years after the time when the matter of the information arose: (c) In the case of an offence in respect of which the maximum flne exceeds $ 100,000 but does not exceed 15 $250,000, at any time within 5 years after the time when the matter of the information arose. (3) All proceedings in respect of offences against this Act or any regulation made under this Act shall be under the Summary Proceedings Act 1957. 20 (4) All prosecutions and proceedings in respect of offences against this Act or any regulation made under this Act may be commenced and taken in the name of the Minister or the chief executive or of any Fishery Officer.
C£ 1983, No. 14, s. 104 (1), (2), (3), (6); 1987, No. 117, 25 s. 11 (1)
239. Informations relating to certain offences may be heard together-(1) Notwithstanding any other enactment or rule of law, where 2 or more informations charging the defendant with any offence against this Act or any re¥ulation 30 made under it have been laid, the Court may order tnat any specified informations be heard together if satisfied that- (a) Either- (i) The offences are founded on the same set of facts; or 35 (ii) The offences form or are part of a series of offences of the same character or a similar character; and (b) It is in the interests of justice that the informations be heard together. 40 (2) Where the Court has made an order under subsection (1) of this section, the Court, at any subsequent time, may direct that any information subject to that order be heard separately if Fisheries 149
satisfied that it is in the interests ofjustice that the informations be heard separately. (3) For the purposes of this section, in considering whether it is in the interests ofjustice to hear any informations together or 5 separately, the Court shall have regard to the likelihood of prejudice to the defendant if any particular information or combination of informations is heard together with any other information or combination of informations. Cf. 1983, No. 14, s. 104A; 1992, No. 90, s. 17
10 240. Information may charge defendant with any number of offences-(1) Notwithstanding section 16 of the Summary Proceedings Act 1957, any information may charge the defendant with any number of offences against this Act or any regulation made under it (being offences in respect of 15 which the maximum ne is $250,000), if those offences are founded on the same set of facts or form or are part of a series of offences of the same or a similar character. (2) Where any information charges more than one such offence, particulars of each offence charged shall be set out 20 separately in the information. (3) All such charges shall be heard together unless the Court, either before or at any time during the hearing, considers it just that any charge should be heard separately and makes an order to that effect. 25 Cf. 1992, No. 13, s. 166 (5)-(7)
241. Strict liability-(1) In any prosecution for any offence against this Act or any regulation made under this Act, it shall not be necessary for the prosecution to prove that the defendant intended to commit an offence. 30 (2) It shall be a defence in any prosecution for any offence not being an offence of the types specified in section 242 of this Act, if the defendant proves that- (a) The defendant did not intend to commit the offence; and (b) In any case where it is alleged that anything required to 35 be done was not done, the defendant took all reasonable steps to ensure that it was done; or (c) In any case where it is alleged that anything prohibited was done, the defendant took all reasonable steps to ensure that it was not done. 40 1983, No. 14, s. 105; 1986, No. 34, s. 27 (1)
242. Defences available to commercial fisher taking unauthorised fish-(1) It shall be a defence in any 150 Fisheries proceedings against a commercial fisher for an offence concerning the taking or possession of any fish (not being fish subject to a quota management system) in contravention of this Act or any regulation made under it, if the defendant proves that- 5 (a) The defendant did not intend to take the fish; and (b) The fish was taken as the inevitable consequence of the lawful taking of other fish; and (c) Either- (i) The commercial fisher immediately returned the 10 fish to the sea; or (ii) Except in the case of any fish that is not of legal size, the defendant notified the registrar as soon as practicable of the taking of the fish, and surrendered ownership of the fish to the Crown and disposed of 15 the fish in accordance with the directions of a Registrar. (2) It shall be a defence in any proceedings against a commercial fisher for taking fish in breach of the provisions of section 63 of this Act if either- 20 (a) Within 15 days of the end of the month in which the flsh was taken, the commercial fisher becomes the holder of sufficient annual catch entitlement to equal the amount of fish taken in excess of the annual catch entitlement held at the time the takmg occurred; or 25 (b) The commercial fisher proves that- (i) The commercial fisher did not intend to take the fish; and (ii) The fish was taken as the inevitable consequence of the lawful taking of other fish. 30
Cf. 1983, No. 14, s. 105A; 1990, No. 29, s. 50 (1); 1992, No. 90, s. 18
243. Liability of principal for actions of agent in relation to records and returns-(1) Where a person (in this section referred to as the principal) is required by or under this 35 Act to- (a) Keep any account or record; or (b) Complete and furnish any return or furnish any information; or (c) Complete any form; or 40 (d) Take any action in relation to the keeping of any account or record or the furnishing of any return or information or the completing of any form,- Fisheries 151
every act or omission of any person acting or purporting to act as agent for the principal in respect of any such requirement shall be deemed for the purposes of this Act to be the act or omission of the principal, unless the principal proves that the 5 person purporting to act as agent had no authority, either express or implied, to act as the prmcTal's agent for the purpose of keeping any account or recora, or furnishing any return or information, or completing any form, or taking any action in respect of such matters, as the case may be. 10 (2) Subject to subsection (3) of this section, any defence specified in section 241 (2) of this Act is available to the principal only to the extent that it can be proved in respect of the person in relation to whose act or omission the prosecution is brought. (3) A defence specified in section 241 (2) of this Act is available 15 to a principal prosecuted in respect of the act or omission of an agent if the principal satisfies the Court that, having regard to- (a) Any likely or possible benefit or detriment arising to the principal from the act or omission in respect of which 20 the prosecution is brought if the alleged offence had remained undetected; and (b) The purpose or motive of the agent whose act or omission it was; and (c) The relationship between the principal and the agent 25 whose act or omission it was, or between the principal and any person appearing or likely to benefit from the alleged offence; and (d) Where the principal is a body corporate, whether or not any person responsible for or closely associated with 30 the management of the body corporate appears to have benefitted from the act or omission, or would have been likely to so benefit if the alleged offence had remained undetected; and (e) Any action taken by the principal, once aware of the act 35 or omission, in respect oi the agent whose act or omission it was or any person appearing likely to benefit from the alleged offence,- it would be repugnant to justice to apply to the principal the limitation imposed by subsection (2) of this section in relation to 40 any defence provided for in section 241 (2) of this Act. (4) For the purposes of this section,- (a) A person may act as an agent for a principal whether or not that person is employed by the principal and whether or not acting tor reward: 152 Fisheries
(b) Any agent of a person acting as agent shall be deemed to be acting as an agent oi the principal.
Cf. 1983, No. 14, s. 105B; 1990, No. 29, s. 51
244. Liability of companies and persons for actions of officers and employees-(1) Every act or omission of any 5 officer or employee of a person, or of the master or any member of the crew of a vessel that is chartered or leased by the person for the purpose of engaging in fishing, shall be deemed for the purposes of this Act to be the act or omission of the person. 10 (2) Subject to subsection (3) of this section, any defence specified in section 241 (2) or section 242 of this Act in relation to a prosecution under this Act or any regulation made under this Act is available to arerson only to the extent that it can be proved in respect oI the officer, employee, master, or crew 15 member in relation to whose act or omission the prosecution is brought. (3) A defence specified in section 241 (2) or section 242 of this Act is available to a person prosecuted in respect of the act or omission of a person referred to in subsection (1) of this section if 20 the person satisfies the Court that, having regard to- (a) Any likely or possible benefit or detriment arising to the person from the act or omission in respect of which the prosecution is brought if the alleged offence had remained undetected; and 25 (b) The purpose or motive of the person whose act or omission it was; and (c) The relationship between the person and the person whose act or omission it was, or between the person and any person appearing or likely to benefit from 30 the alleged offence; and (d) Where the person is a body corporate, whether or not any person responsible for or closely associated with the management of the body corporate appears to have benefitted from the act or omission, or would have 35 been likely to so benefit if the alleged offence had remained undetected; and (e) Any action taken by the person, or, where the person is a body corporate, by any person responsible for its management, once aware of the act or omission, in 40 respect of the person whose act or omission it was or any person appearing or likely to benefit from the alleged offence,- Fisheries 153
it would be repugnant to justice to apply to the person the limitation imposed by subsection (2) of this section in relation to any defence provided for in section 241 (2) or section 242 of this Act.
5 Cf. 1983, No. 14, s. 105c; 1990, No. 29, s. 51
245. Liability of directors and managers-Where any body corporate is convicted of an offence against this Act or any offence against any regulation made under this Act, every director and every person concerned in the management of the 10 body corporate shall be guilty of a like offence if it is proved that the act or omission that constituted the offence took place with the person's authority, permission, or consent, or that the person knew or should have known that the offence was to be or was being committed and failed to take all reasonable steps 15 to prevent or stop it. Cf. 1983, No. 14, s. 1051); 1990, No. 29, s. 51
246. Presumption as to authority-A return or record or other information purporting to be completed or furnished by or on behalf of any person shall, for all purposes of this Act, be 20 deemed to have been completed or furnished by that person or by that person's authority unless the contrary is proved. Cf. 1983, s. 105E; 1990, No. 29, s. 51
Evidence in Proceedings 247. Certificates and official documents-(1) Subject to 25 subsection (4) of this section, in any proceedings for an offence against this Act or against any regulation made under this Act, the following certificates or documents shall be admissible in evidence and shall, in the absence of proof to the contrary, be sufficient evidence of the matter stated in the certificate or of 30 the contents of the document, as the case may require: (a) A certificate purporting to be signed by the chief executive or any Registrar to the effect that, on a date specified in the certificate,- (i) A vessel specified in the certificate was or was 35 not registered under this Act; or (ii) A person specified in the certificate was or was not the owner of a registered fishing vessel specihed in the certificate; or (iii) Any specified foreign fishing vessel was or was 40 not licensed under Part IV of this Act; or 154 Fisheries
(iv) A fishing permit, authority, or approval authorising a person named in the certificate to take fish was or was not in force; or (v) A fishing permit, authority, or approval authorising the taking of flsh from a vessel named in 5 the certificate was or was not in force; or (vi) Any fishing permit, authority, or approval referred to in subparagraph (iv) or subparagraph (v) of this paragraph was or was not subject to any specified condition attached or relating to the permit, 10 authority, or approval; or (vii) Any specified permit or licence was suspended for non-payment of any levies payable under Part XII of this Act; or (viii) Any specied interest in any specifled quota or 15 annual catch entitlement was or was not held by a person named in the certificate; or (ix) Any specifled catch was the catch taken by any specified person; or (x) Any licence relating to the acquisition, storage, 20 processing, or disposal ot fish, aquatic life, or seaweed was or was not held by a person named in the certificate; or (xi) Any licence referred to in subparagraph (x) of this paragraph was or was not subject to any specified 25 condition attached or relating to the licence; or (xii) Any specified return or information required to be completed or furnished under this Act was or was not completed or furnished; or (xiii) Any vessel was or was not subject to a 30 conversion factor certificate given under section 4 of this Act; or (xiv) Any conversion factor certificate referred to in subparagraph (xiii) of this paragraph was or was not subject to any specified term or condition; or 35 (xv) Any specified amount (if any) was the deemed value owed by any specified person and any specified invoice was sent to any specified person by the chief executive at a specified time; or (xvi) Any specified person was an associated person 40 in relation to any other specified person; or (b) Any (i) Certificate purporting to be signed by a Chief Surveyor appointed under the Survey Act 1986, or by Fisheries 155
the Royal New Zealand Naval Hydrographer, and stating the status of any area; or (ii) Map, plan, or other such document purporting to be certified as true by a Chief Surveyor or by the 5 Royal New Zealand Naval Hydrographer: (c) Any- (i) Certificate purporting to be signed by the Registrar of Ships appointed under the Ship Registration Act 1992 that, on a date specified in the 10 certificate, a vessel specified in the certificate was not a New Zealand ship within the meaning of that Act;
or (ii) Copy of a certificate of registry, or of a certificate of registration, granted under section 23 of 15 that Act that purports to be certified correct by the Registrar of Ships or by any person duly authorised by the Registrar of Ships in that behalf: (d) Any certificate purporting to be signed by a member of the Defence Force within the meaning of the Defence 20 Act 1990 and statinS- (i) The position ot any fishing vessel at a date and time specihed in the certificate; or (ii) That the person is satisfied that the equipment used to determine the position of any fishing vessel 25 was in proper working order and that the equipment was accurate within specifications detailed in the certificate: (e) Any certificate purporting to be signed by the chief executive or any Registrar statinj the manner or 30 order in which the tlsh catch of any person was counted against any quota in respect of any fishing year or from time to time during any fishing year, or any other matter provided for in regulations made under section 302 (1) (j) of this Act. 35 (2) A certificate purporting to be signed by a person referred to m subsection (1 ) of this section may relate to any one or more of the matters with respect to which that person has authority to certify. (3) The production of any certificate or copy of any 40 document tor the purposes of this section purporting to be signed by any person authorised under this section to sign it shall be prima iacie evidence of the certificate or copy without proof of the signature of the person purporting to have signed it. 156 Fisheries
(4) Any certificate (not being a certified copy of a document) referred to in subsection (1) of this section shall be admissible in evidence only if- (a) At least 14 days before the hearing at which the certificate is to be tendered, a copy of that certificate is served, 5 by or on behalf of the prosecutor, on the defendant or the defendant's agent or counsel, and that person is at the same time informed in writing that the prosecutor does not propose to call the person who signed the certificate as a witness at the hearing; and 10 (b) The Court has not, on the application of the defendant made not less than 7 days before the hearing, ordered, not less than 4 days before the hearing (or such lesser period as the Court in the special circumstances of the case thinks fit), that the 15 certificate should not be admissible as evidence in the proceedings. (5) The Court shall not make an order under subsection (4) of this section unless it is satisfied that there is a reasonable doubt as to the accuracy or validity of a certificate. 20 CE 1983, No. 14, s. 106; 1990, No. 29, s. 51; 1991, No. 149, s. 28; 1992, No. 90, s. 19
248. Copies of accounts, records, returns, and other documents-(1) A copy of any account, record, return, or information required to be kept, completed, or furnished 25 pursuant to this Act that purports to be certified by the chief executive or a Registrar as having been kept or furnished (as the case may require), at or within or in relation to any specified time or date or period, shall be sufficient evidence, in the absence of proof to the contrary, of the fact that the 30 account, record, return, or information was so kept or furnished. (2) Any copy of a record or other document taken by a Fishery OfFlcer or an examiner under section 199 of this Act, or any copy of such a copy, shall, subject to subsection (3) of this 35 section, be admissible, to the same extent as the original record or document would itself be admissible, as evidence of the record or document and of any transactions, dealings, amounts, or other matters contained in the record of the document. (3) A copy of a record or document referred to in subsection (2) 40 of this section (including a copy of such a copy) shall be admissible in evidence only if- (a) The frosecutor or an agent of the prosecutor serves on tne defendant, or the defendant's agent or counsel, Fisheries 157
not less than 14 days before the hearing at which it is proposed to tender the copy in evidence,- (i) Notice of the prosecutor's intention to tender the copy in evidence; and 5 (ii) A copy of the copy which is to be so tendered; and (b) The Court has not, on the application of the defendant made not less than 4 days before the hearing (or such lesser period as the Court in the special circumstances 10 of the case thinks fit), ordered that the certificate should not be admissible as evidence in the proceedings. (4) The Court shall not make an order under subsection (3) of this section unless it is satisfied that there is a reasonable doubt 15 as to the accuracy or validity of the copy. Cf. 1983, No. 14, s. 106A; 1990, No. 29, s. 51
249. Presumption as to master of fishing vessel-In any proceedings for an offence against this Act or any regulations made under this Act, an allegation made by the informant in 20 any information relating to whether or not any person was the master of any fishing vessel at any specified time shall be presumed to be true in the absence of proof to the contrary. Cf. 1983, No. 14, s. 106B; 1990, No. 29, s. 51
250. Presumptions to apply whether or not separate or 25 further evidence adduced in support-Where it it provided in this Act that any presumption is to apply in respect of any matter, the presumption shall apply whether or not separate or further evidence is adduced by or on behalf of the informant in support of the relevant allegation or presumption. 30 C£ 1983, No. 14, s. 106c; 1990, No. 29, s. 51
Penalties
251. Penalties-(1) Every person who commits an ofFence against this Act for which no other penalty is prescribed shall on conviction be liable to a fine not exceeding $250,000, and, if 35 the offence is a continuing one, to a further hne not exceeding $1,000 for every day after the first day on which the offence has continued. (2) Notwithstanding anything in the Criminal Justice Act 1985, where any person is convicted of an offence against this 40 Act, or any regulations made under it, for which the maximum penalty is a fme not exceeding $5,000 or a fine not exceeding 158 Fisheries
$10,000 on a second or subsequent conviction, the Court may, in addition to any other sentence it may impose, sentence the defendant serve such specified community-based sentence (as defined in section 2 (1) of that Act) as the Court in the circumstances of the case considers appropriate, as if the 5 offence were punishable by imprisonment. Cf. 1983, No. 14, s. 107; 1990, No. 29, s. 51
252. Provision for payment of fees-(1) Where any person is convicted of an offence against section 225 of this Act in relation to section 171 of this Act, then, whether or not the 10 Court imposes any penalty in respect of the offence, there shall be payable to the Crown by the owner of the fishing vessel an amount equal to the amount of the prescribed registration fee payable in respect of the vessel. (2) Any amount payable to the Crown under subsection (1) of 15 this section shall be assessed by the Court, and shall be recoverable as if it were a fne.
Cf. 1983, No. 14, s. 107A; 1990, No. 29, s. 51
253. Forfeiture of property on conviction-(1) In this section, unless the context otherwise requires,- 20 (a) Property means any vessel, vehicle or other conveyance, fishing gear, implement, appliance, material, container, goods, or equipment; but does not include quota: (b) Quota, in relation to a person convicted of an offence, 25 nneans any individual transferable quota or provisional individual transferable quota held by that person or any person who is an associated person in relation to that person. (2) On the conviction of any person for an offence against 30 this Act, or regulations made under this Act, for which the maximum fine and conviction for the time does not exceed $5,000, or on the discharge of any person pursuant to section 19 of the Criminal Justice Act in respect of such an offence,- (a) Any fish in respect of which the offence was committed 35 (whether or not seized pursuant to section 201 of this Act); and (b) Any proceeds from the sale of such fish pursuant to section 201 of this Act; and (c) Any illegal fishing gear in respect of which the offence was 40 committed (whether or not seized pursuant to section 201 of this Act) shall be forfeit to the Crown, Fisheries 159
unless the Court for special reasons relating to the offence, thinks fit to order otherwise. (3) On the conviction of any person for an offence against this Act, or regulations made under this Act, for which the 5 maximum flne exceeds $5,000,- (a) Any property used in respect of the commission of the offence (whether or not seized pursuant to section 201 of this Act); and (b) Any fish in respect of which the offence was committed 10 (whether or not seized pursuant to section 201 of this Act); and (c) Any proceeds from the sale of such fish pursuant to section 206 of this Act; and (d) Any illegal fishing gear in respect of which the offence 15 was committed (whether or not seized pursuant to section 201 of this Act) shall be forfeit to the Crown, unless the Court for special reasons relating to the offence thinks fit to order otherwise. (4) For the purposes of section 19 of the Criminal Justice Act 20 1985, any forfeiture referred to in subsection (2) of this section shall be deemed to be a minimum penalty in respect of the commission of an offence referred to in that subsection, except to the extent that the Court for special reasons relating to the offence thinks fit to order that the property, fish, or proceeds 25 not be forfeit. (5) Where any property is forfeited to the Crown under this section, the property shall thereupon vest in the Crown absolutely and free of all encumbrances. (6) For the avoidance of doubt, it is hereby declared that any 30 vessel used to take or transport fish which is the subject of an ofFence against section 225 ot this Act in relation to section 189 of this Act, is property used in respect of the commission of the offence.
C£ 1983, No. 14, s. 107 (1), (2), (4), (5); 1990, No. 29, 35 s. 52 (1)
254. Block on trading in quota and seizure of quota, where fne unpaid-(1) Where any person is convicted of an offence against this Act or any regulations made under this Act for which the maximum flne is $250,000, it shall thereafter be 40 unlawful for the defendant or any person who is an associated person in relation to the defendant to transfer any quota held by that person until the fine is paid in full to the Court and any transfer in contravention of this subsection shall have no effect. 160 Fisheries
(2) If the Registrar of the Court advises the chief executive in writing that the fine has remained unpaid (whether in whole or part) for at least 28 days, the chief executive may- (a) Seize such amount of quota owned by the defendant and (if necessary) such amount of quota owned by any 5 person who is, in relation to the defendant, an associated person, as appears to the chief executive to be necessary to satisfy the amount of the fine that remains unpaid; and (b) Sell, by public tender, the amount of seized quota and 10 apply the proceeds of sale to the outstanding fine. (3) Any surplus remaining after the proceeds of the sale have been applied to the fine under subsection (2) (b) of this section shall be returned first to the associated person concerned (if applicable) and secondly to the defendant. 15 (4) The chief executive may return the seized quota to the defendant or the associated person at any time before the quota is sold if the fine is paid in full before that time. (5) Neither the Crown nor any other person- (a) Shall be liable to pay to any person any compensation for 20 any reduction in ·the value of quota, or tor any other loss whatever, resulting directly or indirectly from the sale of any quota under this section; or (b) Shall otherwise be guilty of a civil wrong by reason only of such sale. 25 (6) Notwithstanding any enactment, rule of law, or agreement to the contrary, where any quota is sold under this section, the property in the quota shall thereupon pass absolutely to the purchaser free of all encumbrances.
255. Provisions relating to forfeited property- 30 (1) Where arpr property, fish, or proceeds (hereafter in this section all rererred to as property) is forfeit to the Crown under section 253 of this Act, the Minister may, subject to the provisions of this section, dispose of that property as the Minister thinks fit. 35 (2) Any person whose property has been forfeit to the Crown under section 253 of this Act or any person having a legal or equitable interest in such propert may apply to the Mmister within 30 days of the conviction ior release of the property so forfeited; and the Minister may order the release of such 40 property on payment to the Crown of such amount (if any) as the Minister thinks appropriate, being an amount not exceeding the amount the items otherwise forfeited are Fisheries 161
estimated by the chief executive to realise if sold by public auction in New Zealand. (3) In considering whether or not to release any forfeited property, or in determining the amount of any payment upon 5 which such property may be released, the Minister shall have regard to, and may give such weight in respect of each matter as the Minister thinks fit in the circumstances of the case to, the following matters: (a) The need for the sustainable utilisation of New Zealand 10 fisheries resources: (b) Whether adequate deterrents apinst the commission of offences against this Act ana regulations made under it can be maintained if some or all of the property is returned: 15 (c) The effect of the offence from which the forfeiture arose on the fishery from which the fish was taken or in which the vessel was, and on the fishers (whether amateur or commercial) in that fishery: (d) The effect of the offending of the type from which the 20 forfeiture arose on the relevant fishery, and on fishers (whether amateur or commercial) in that fishery: (e) The social and economic effects on the defendant, and persons employed by the defendant, of non-release of the property: 25 (f) The previous offendins history (if any) of the defendant: (g) The economic benehts that accrued or might have accrued to the defendant through the commission of the offence: (h) The interest of any other person in the property: 30 (i) Such other matters as the Minister considers relevant. (4) Any forfeiture directed or redemption payment imposed pursuant to this section shall be in addition to, and not in substitution for, any other penalty that may be imposed by the Court or by this Act. 35 C£ 1983, No. 14, s. 107c; 1990, No. 29, s. 52 (1)
256. Provisions relating to forfeiture of licence, etc., deemed values, and rewards-(1) Every person who is convicted of an offence against this Act or any regulation made under it (not being an offence referred to in subsection (5) of this 40 section) and within 7 years fom the date of that conviction is convicted on another occasion of the same or any other offence against this Act or any regulation made under it (not being an offence referred to in subsection (5) of this section) shall, in addition to any other penalty,- 162 Fisheries
(a) Forfeit any licence, approval, permission, or fishing permit obtained pursuant to this Act; and (b) Be incapable, for a period of 3 years from the date of the conviction, of holding any such licence, approval, permission, or fishing permit or enSaging m any 5 activity associated with the taking of ilsh or deriving any beneficial income from activities associated with the taking of fish. (2) Notwithstanding subsection (1) of this section, the Court may, in the circumstances of any particular case and upon 10 application being made to it by the person concerned within 30 days from the date of the conviction or such extended period as the Court may allow, direct that the provisions of that subsection are not to apply to any particular licence, approval, permission, or fishing permit otherwise forfeit, or that the 15 provision prohibiting the person from engaging in any activity associated with the taking of fish shall not apply. (3) For the purposes of this section, every conviction in respect of an offence against the Fisheries Act 1983 or any regulation made under it shall be deemed to be a conviction in 20 respect of an offence against this Act or any regulation made under it. (4) For the purposes of this section, where- (a) A person is convicted of assault or of any other offence of which an assault constitutes an element (being an 25 offence committed on or after the 1 st day of April 1990); and (b) The assault was on a person who was at the time carrying out the duties of a Fishery Officer or examiner under this Act,- 30 that conviction shall be deemed to be a conviction in respect of an offence against this Act. (5) Nothing in subsection (1) of this section applies to any offence committed by a person in respect of which- (a) A conviction is entered on or after the 1st day of 35 November 1990; and (b) The maximum Ine on conviction for a first offence does not exceed $5,000. (6) Every person who is convicted of an offence against this Act, or any regulation made under it, bein an offence in 40 respect of the taking, possession, or disposal oi, or the keeping of records, or the furnishing of returns in respect of fish that is subject to the quota management system established by Part 111 of this Act, shall in addition to any fine imposed by the Court be liable to pay to the Crown within 20 days of the demand 45 Fisheries 163
being made by the chief executive, the deemed value of the fish to which the prosecution relates. (7) The chief executive may make such payments as the chief executive thinks fit to any person or persons who have supplied 5 information that has assisted in the detection and investigation of offences against this Act or any regulation made under it. (8) All payments under subsection (1) of this section shall be made from money from time to time appropriated by Parliament for the purpose. 10 Cf. 1983, No. 14, ss. 10711 107E; 1986, No. 34, s. 27 (1); 1990, No. 29, s. 53
Infringement Notice Procedure 257. Certain offences may be proceeded with by way of infringement notice-(1) Where a Fishery Officer has reason 15 to believe that a person (hereafter in this section referred to as the defendant) has committed an infringement offence,- (a) The defendant may be proceeded against for the alleged offence under the Summary Proceedings Act 1957; or (b) The Fisheries Officer may issue an infringement notice in 20 respect of the alleged offence. (2) Any Fishery Officer (not necessarily the Fishery Ofcer who issued the notice)- (a) May deliver it (or a copy of it) to the defendant personally;
or 25 (b) May fix it (or a copy of it) to a conspicuous part of the defendant's fishing vessel or may send it (or a copy of it) to the defendant by post addressed to the defendant's last known place of residence or business; and, in that case, for the purposes of the Summary 30 Proceedings Act 1957, it (or the copy) shall be deemed to have been served on the defendant when it was so fixed or posted. (3) Every infringement notice shall be in a form prescribed by regulations made under section 302 of this Act; and shall 35 specify- (a) Sufficient details to inform the defendant fairly of the time, place, and nature of the offence alleged; and (b) The infringement fee; and (c) Where the fee may be paid; and 40 (d) The time within which the fee may be paid; and (e) A summary of the provisions of section 21 (10) of the Summary Proceedings Act 1957; and (fj That the defendant has a right to request a hearing; and 164 Fisheries
(g) A statement of what will happen if the defendant neither pays the fee nor requests a hearing; and (h) Any other matters prescribed in that behalf. (4) Infringement fees shall be prescribed by regulations made under section 302 of this Act and shall be payable to the 5 Ministry; and the chief executive shall collect the infringement fees or cause them to be collected (whether by the Ministry or any 9ther person or organisation) and pay all infringement fees received mto a Crown Bank Account. (5) If the defendant does not request a hearing, the 10 defendant shall pay the infringement fee within the time prescribed for payment. (6) Where an infringement notice has been issued under this section, proceedings in respect of the offence to which the notice relates may be commenced in accordance with 15 section 21 of the Summary Proceedings Act 1957, and in that case the provisions of that section shall, with the necessary modifications, apply. (7) For the purposes of this section, infringement offences shall be specified by regulations made under section 302 of this 20 Act and shall be offences against this Act or any regulations made under it for which the maximum fine does not exceed $1,000.
Cf. 1993, No. 95, ss. 159, 160
PART XII 25
COST RECOVERY
258. Levies-(1) Subject to sections 259 to 261 of this Act, in respect of any period commencing on or after the 1 st day of October 1995, the Governor-General may from time to time, by Order in Council made on the recommendation of the 30 Minister (given with the concurrence of the Minister of Conservation in the case of any levy in respect of any conservation services referred to in paragraph (d) of this subsection), impose levies on the persons referred to in subsection (2) of this section (or any of them) for the purpose of 35 enablin the Crown to recover its costs in respect of one or more oi the following: (a) The management of fisheries resources under this Act or the Marine Farming Act 1971: (b) The enforcement of the provisions relating to fisheries 40 resources in this Act or any other Act referred to in paragraph (a) of this subsection: (c) Research relating to fisheries resources: Fisheries 165
(d) The provision of conservation services, being- (i) Research relating to the effects on any species protected by any enactment specified in the First Schedule to the Conservation Act 1987 of bycatch 5 resulting from commercial fishing: (ii) The management measures necessary to avoid, remedy, or mitigate the adverse effects of commercial fishing on any species referred to in subparagraph (i) of this paragraph: 10 (iii) Any other research or manasement measures necessary to enable the Minister ot Conservation to perform his or her functions and duties under any enactment, where the research or management arises because of the existence of commercial fishing: 15 (e) The performance or exercise of any other function, duty, or power conferred or imposed by any enactment relating to fisheries resources. (2) Such levies may be imposed only on- (a) Any holder of any quota (being a person to whom a quota 20 has been issued or transferred): (b) Any licensed fish receiver (being a person who holds a licence under the Fisheries (Licensed Fish Receivers) Regulations 1986) and any holder of any certificate of recognition issued or renewed under those 25 regulations: (c) Any holder of any fishing permit: (d) Any holder of any special permit: (e) Any holder of any marine farming permit: (f) Any holder of a lease or licence issued under the Marine 30 Farming Act 1971: (g) Any holder of any spat-catching permit: (h) Any owner of any fishing vessel: (i) Any holder of any controlled fishery licence: (j) Any holder of any other permit or licence issued under 35 this Act. (3) Without limiting the generality of subsection (1) of this section, any such order may- (a) Prescribe, or provide for the fixing of, different rates of levy in respect of different classes of person referred 40 to m subsection (2) of this section, species or kinds of fish, aquatic life, or seaweed, quantities of fish, aquatic life, or seaweed, stock management areas, or any combination of them: (b) Prescribe, or provide for the fixing of, different rates of 45 levy based on the value of quota, the port price of 166 Fisheries
fish, aquatic life, or seaweed landed, or on any other differential basis whatever relating to commercial fishing: (c) Specify that a levy shall be payable on the basis of the amount of the fish, aquatic life, or seaweed processed 5 or taken, or (juota held, during a specified period or on a specifiea day; or specify any other method for assessing that amount: (d) Require records and returns to be made and furnished by persons by whom any levy is payable, and prescribe 10 conditions relating to the making and furnishing of such records and returns: (e) Prescribe a date by which, and the place at which, any levy is payable; and prescribe different dates for the payment of different levies; or authorise the chief 15 executive to fix any such date or dates or place: (f) Authorise the Minister to remit or waive the payment of any levy, in whole or in part,- (i) To correct an administrative error made in calculating the amount due; or 20 (ii) Where the Minister and the person liable to pay the amount due have entered into an arrangement for payment of that amount: (g) Subject to section 259 (3) of this Act, amend any provision of the Third Schedule to this Act or, instead of 25 amending that Schedule, omit that Schedule and substitute a new Schedule: (h) Prescribe or provide for such other matters as may be necessary or expedient to give effect to any determination under section 260 of this Act. 30 (4) Nothing in this section limits any other provision in this Act that requires the payment of, or empowers the imposition of, any fee, charge, levy, or rental relating to commercial fishing.
259. Certain costs to be borne by the Crown-(1) The 35 Crown shall bear the costs of the required services referred to in paragraphs (a) to (c) of section 260 (2) of this Act to the extent specified in the Third Schedule to this Act. (2) The balance of the costs of such required services (being the amount outstanding after the Crown's contribution has 40 been deducted) shall be recoverable under section 258 of this Act from the persons referred to in subsection (2) of that section (or any of them). Fisheries 167
(3) The Third Schedule to this Act may be amended or substituted under section 258 of this Act by an Order in Council having effect as from the 1 st day of October 1997 and thereafter may be so amended or substituted at intervals of not 5 less than 3 years, but otherwise shall not be so amended or substituted.
260. Consultation required before levy order (other than amending order) made-(1) In each year, the Minister shall commence, or cause to be commenced, consultation in 10 accordance with this section and no Order in Council (other than an order to which section 261 of this Act applies) shall be made under section 258 of this Act in any year unless such consultation has been carried out in that year in accordance with this section. 15 (2) The initial object of consultation under this section is to ascertain, in respect of the following fishing year,--- (a) The nature and extent of the required services, and the conservation services referred to in section 258 (1) (d) of this Act, and the cost of those services; and 20 (b) The amount or level or standard of the required services; and (c) The particular projects and activities entailed in the required services and the costs of such projects and activities; and 25 (d) The method by which the costs referred to in paragraphs (a) and (c) of this subsection are to be shared or borne by persons referred to in section 258 (2) of this Act and the rate or level of levies necessary to recover the cost of the required services; and the foregoing provisions of 30 this paragraph- (i) Shall be read as requiring that there be taken into account- (A) Fisheries related fees, levies, and other charges fixed by or under this Act (other 35 than levies imposed under section 258 of this Act) or the Marine Farming Act 1971; and (B) The amount recovered, or recoverable, by such fees, levies, and other charges, and 40 by levies imposed under section 258 of this Act, in respect of the period to which any order made under the said section 258, that is for the time being in force, applies; and 168 Fisheries
(C) The intervals at which it is proposed that the levies be payable; and (ii) Shall be subject to the limitations imposed by section 259 of this Act. (3) The final object of consultation under this section is to 5 ascertain the costs to be recovered under section 258 of this Act. (4) The consultation shall be conducted as follows: (a) In relation to the matters referred to in paragraphs (a) and (b) of subsection (2) of this section, the consultation shall be with-- 10 (i) Such persons or organisations as the Minister considers are representative of persons interested in the sustainable utilisation of New Zealand fisheries and fisheries resources within New Zealand and New Zealand fisheries waters, including (but not limited to) 15 persons or organisations as the Minister considers are representative of Maori, environmental interests, commercial interests, and recreational interests; and (ii) The Minister of Conservation, if any levy is proposed in respect of any conservation services 20 referred to in section 258 (1) (d) of this Act: (b) In relation to the matters referred to in paragraphs (c) and (d) of subsection (2) of this section, the consultation shall be with- (i) Such persons or organisations as the Minister 25 considers are representative of persons likely to be affected by the proposed cost recovery; and (ii) The Minister of Conservation, if any levy is proposed in respect of any conservation services referred to in section 258 (1) (d) of this Act. 30 (5) The Minister, after consultation in accordance with subsections (2) to (4) of this section, shall determine the matters to which the consultation related and may accordingly recommend the making of an Order in Council under section 258 of this Act. 35 (6) In this section, the term "required services" means- (a) The management of fisheries resources under this Act or the Marine Farming Act 1971: (b) The enforcement of the provisions relating to fisheries resources in this Act or any other Act referred to in 40 paragraph (a) of this subsection: (c) Research relating to fisheries resources: (d) The performance or exercise, by the Minister or the chief executive or any person employed in the Ministry, of any other function, duty, or power conferred or 45 Fisheries 169
imposed by any enactment relating to fisheries
resources.
261. Consultation required before amending order made-(1) Except as provided in subsection (2) of this section, 5 before recommending the amendment of an Order in Council made under section 258 of this Act, the Minister shall consult, or cause to be consulted, the persons or organisations referred to in paragraphs (a) and (b) of section 260 (4) of this Act who are affected by the proposed amendment. 10 (2) Subsection (1) of this section does not require any consultation to be carried out before the Minister recommends the making of an Order in Council- (a) Correcting any ypograjihical error or obvious mistake; or (b) Amending the torm ot any order made under section 258 15 of this Act.
262. Levy orders may be amended during fishing year-Subject to section 261 of this Act, an Order in Council made under section 258 of this Act may be amended or revoked at any time and from time to time during any fishing year.
20 263. Payment of levies-Levies imposed by an Order in Council made under section 258 of this Act shall be payable in accordance with the order or, if the order does make such provision, either- (a) In the case of a monthly levy, not later than the 20th day 25 of each month; or (b) In any other case, within 20 days after the receipt of a demand from the chief executive.
264. Levies to be separately accounted for-The Minister shall ensure that all levies imposed under section 258 of 30 this Act are- (a) Collected; and (b) Paid into a Crown Bank Account; and (c) Separately accounted for.
PART XIII
35 FISHERIES ADMINISTRATIONI 265. Interpretation-In this Part of this Act, unless the context otherwise reguires,- "Chief executive ' means the chief executive for the time being of the Ministry of Fisheries: 40 "Intellectual property"- 170 Fisheries
(a) Includes- (i) All property rights constituted by the Patents Act 1953, the Designs Act 1953, or the Trade Marks Act 1953; and (ii) Any trade secret; but 5 (b) Does not include any property rights constituted by the Copyright Act 1962: "Minister" means the Minister of Fisheries: "Ministry" means the Ministry of Fisheries: "Working day" means a day that is not a Saturday, a 10 Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's birthday, Labour Day, or a day during a period commencing on any Christmas Day and ending with the 15th day of the following January: 15 CE 1953, No. 7, s. 2; 1972, No. 3, s. 3 (2); 1989, No. 17, s. 2 (1)
266. Inventions, etc., by employees-(1) Notwithstanding anything in any other enactment, any intellectual property, fisheries data, or research devised or developed by an officer or 20 employee of the Ministry belongs to the Crown (which shall be deemed to be the assignee of the officer or employee in respect of the property) if- (a) It was devised or developed in the course of the duties of the officer or employee, whether or not the 25 intellectual property might reasonably be expected to result; or (b) It was devised or developed wholly or principally by or through the use of resources provided by the Crown;- 30 but any other intellectual property, fisheries data, or research devised or developed by an ofAcer or employee of the Ministry shall, as between the officer and employee and the Crown (as the officer or employee's ultimate employer), belong to the officer or employee. 35 (2) There may be paid to an officer or employee of the Ministry who devises or develops any intellectual property, fisheries data, or research that belongs to the Crown any amount by way of bonus or grant appropriate in the circumstances. 40 (3) Any intellectual property, fisheries data, or research belonging to the Crown under this section may be rnade available for use (whether by way of assignment or licence or otherwise) on any conditions (including the payment of Fisheries 171
royalties or other money) the Minister from time to time agrees. (4) Where intellectual property, fisheries data, or research belonging to the Crown under this section was devised or 5 developed wholly or partly through the use of resources other than public money or public stores (as defined in section 2 (1) of the Public Finance Act 1977), the Minister shall assign the property or any interest the Minister has in the property to the person or persons who provided the resources according to the 10 proportion of the resources so provided in relation to the total resources utilised to devise or develop the property. (5) Subsection (4) of this section does not prevent the Minister using any property in order to carry out his or her functions. (6) Subsection (4) of this section does not limit the generality of 15 subsection (3) of this section.
Cf. 1953, No. 7, s. 11A; 1989, No. 17, s. 7
267. Advisory committees-(1) The Minister may from time to time appoint such advisory committees as the Minister considers appropriate to assist him or her in the performance of 20 any of the iunctions or exercise of any of the powers of the Minister. (2) Every such advisory committee shall be deemed to be a statutory Board within the meaning of the Fees and Travellmg Allowances Act 1951. 25 (3) There shall be paid to the members of every such advisory committee, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances, and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, 30 and the provisions of that Act shall apply accordingly. (4) No person shall be deemed to be employed in the service of Her Majesty by reason of appointment to an advisory committee under this section.
C£ 1953, No. 7, s. 13
35 268. Failure to pay statutory fees, etc.-(1) In this section, the term "statutory debt" means any fee, charge, or levy required by any enactment administered by the Ministry, or by any regulation, order, notice, direction, or other instrument, made or issued under any such enactment, (being an 40 enactment that does not provide for the payment of interest or a moneta,y penalty for late payment of, or failure or refusal to pay, the tee, charge, or levy) to be paid to the Ministry, the 172 Fisheries chief executive, any employee of the Ministry, or any person holding any office under any such enactment. (2) Where, after the expiration of the time provided by the enactment concerned (or by subsection (4) of this section), all or any part of a statutory debt remains unpaid, the debt shall be 5 deemed to have been increased by an amount calculated in accordance with subsection (3) of this section. (3) The amount by which an unpaid statutory debt, or any unpaid part of a statutory debt, is deemed to have been increased is the sum of- 10 (a) Ten percent of the debt (or that part of the debt that remained unpaid after the expiration of the time provided for the debt's payment); and (b) For every complete period of 6 months after that expiration during which the debt or any part of it 15 (including any deemed increase calculated under this subsection) has remained unpaid, 10 percent of debt or that part. (4) Where no time is otherwise provided by any enactment for the payment of statutory debts of any kind or description, 20 the debt shall be paid within 20 working days of it being demanded in writing from the person required to pay it by any employee of the Ministry. (5) If the chief executive is satised that the failure or refusal of any person to pay all or any part of a statutory debt was a 25 result of a genuine dispute between the person and the Ministry as to- (a) The person's liability to pay the debt; or (b) The amount of the debt; or (c) Both,- 30 the chief executive may waive the payment of all or anypart by which the debt has been increased under subsection (2) ot this section. (6) If in any action for the recovery of a statutory debt the Court is satished as aforesaid, the Court may waive payment as 35 aforesaid. ( 7) Where- (a) The chief executive is paid a statutory debt that is collected on behalf of and required to be paid to some other person or body; and 40 (b) It has been deemed under this section to have been increased,- then, subject to section 269 of this Act, to the extent that the amount of the increase has been received, it shall be paid to the person or body. 45 Fisheries 173
(8) If satisfied that- (a) A statutory debt had been correctly calculated; and (b) The time provided by an enactment concerned (or subsection (4) of this section) for the debt's payment 5 had expired; and (c) The debt or any part of it has not been paid,- the chief executive may give to the person liable to pay the debt written notice that unless within 10 workin days the person pays the debt or part, or satisfies the chief executive 10 that it is not payable, the chief executive may withdraw, or refuse to provide the person with, service of the kind to which the debt relates. (9) Where- (a) Ten or more working days have expired since the chief 15 executive gave any person notice under subsection (8) of this section; and (b) The person concerned has neither paid the statutory debt or part concerned nor satisfied the chief executive that it is not payable,- 20 the chief executive may, after causing the person to be sent by registered mail or given orally a notice that the chief executive has decided to do so, withdraw or refuse to provide the service concerned. ( 10) Where the chief executive has under subsection (9) of this 25 section withdrawn or refused to supply a service, the chief executive is not required to re-instate or supply it until,- (a) A Court holds that the debt or part concerned is paid; or (b) A Court holds that the debt or part is not payable; or (c) A Court holds that some lesser amount is payable, and the 30 amount is so paid. C£ 1953, No. 7, s. 13A; 1989, No. 17, s. 8
269. Ministry to deduct costs of collecting levies- (1) Where, pursuant to any enactment administered by the Ministry, the chief executive collects any levy (however 35 described) and pays it to any person or persons, the chief executive shall, notwithstanding anything to the contrary in the enactment, deduct from the amounts of levy collected the actual and reasonable costs to the Ministry of the collection of those amounts and the making of payments, and pay only the 40 residue (or, where the amounts collected are payable to more than one person, the appropriate proportion of the residue) to each person concerned. 174 Fisheries
(2) When paying to any person any amount from which a deduction has been made under subsection (1) of this section, the chief executive shall give the person- (a) Accounts, showing the deductions made, and how they have been calculated; and 5 (b) An explanation for the making of each deduction. Cf. 1953, No. 7, s. 13B; 1989, No. 17, s. 8
270. Amounts payable under Act recoverable as statutory debts-(1) Every amount (other than a fine or a penalty ordered by a Court to be paid in respect of an offence 10 under this Act or any amount fixed under section 255 (2) of this Act) that is payable under this Act to the Crown or to the Ministry or the chief executive shall be deemed to be a statutory debt within the meaning of section 268 of this Act and may be recovered in any Court of competent jurisdiction. 15 (2) Notwithstanding anything in section 268 of this Act and without limiting anything in subsection (5) of that section, where, in respect of any amount or class of amount deemed by subsection (1) of this section to be a statutory debt within the meaning of that section,- 20 (a) An error has been made in calculating the amount due; or (b) The Minister and the person liable to pay the amount due have entered into an arrangement for payment of that amount,- the Minister may waive or defer the payment of all or any part 25 by which the debt or any debt of that class has been or is liable to be increased under subsection (2) of that section. CE 1983, No. 14, s. 107I; 1994, No. 87, s. 4
271. Caveats on quota-(1) Where any person who holds any quota- 30 (a) Is liable to pay any levy imposed under section 258 of this Act, the payment of which has not been waived under section 270 (2) of this Act; and (b) Does not pay the outstanding amount of the levy within 2 months after the date by which payment of the levy 35 is due or within the time allowed under section 270 (2) of this Act,- then, regardless of whether or not the levy has been imposed on that person as a quota holder, the chief executive, after giving that person notice in writing of his or her intention to do 40 so, may cause to be entered in the appropriate register under this Act a caveat forbidding any dealing in any quota held by that person. Fisheries 175
(2) Every caveat under this section shall be- (a) In an approved form; and (b) Contain a description suffcient to identify the quota holder; and 5 (c) State the outstanding amount of levy owed by the quota holder. (3) Upon entry in the appropriate register of a caveat under this section, the chief executive shall cause particulars of the caveat to be notified in a manner provided in section 308 of this 10 Act to each person entered in the register as a holder of the quota concerned. (4) The chief executive- (a) Shall withdraw a caveat entered in a register under this section if the outstanding amount (including any 15 additional amount payable under section 268 of this Act) is paid in full to the Ministry: (b) May, conditionally or unconditionally, withdraw a caveat entered in a register under this section if the chief executive and the person liable to pay the 20 outstanding amount of the levy enter into an arrangement or agreement for repayment of that amount. (5) So long as a caveat remains in force in respect of any quota,- 25 (a) No transfer of that quota shall be registered under this Act; and (b) No transfer of that cluota shall confer any right to take fish on the transkei'ee of that quota,- except to the extent that the Court orders otherwise under 30 subsection (6) of this section. (6) The Court may at any time, on application by- (a) The holder of quota to which subsection (5) of this section applies; or (b) Any person havin an interest in such quota,- 35 order that all or any ot the provisions of that subsection shall not apply in respect of the quota, whether generally or in respect of any specified dealing in the quota. Any such order may be subject to such sureties and conditions as the Court may specify.
40 Cf. 1983, No. 14, s. 1071; 1994, No. 87, s. 4
272. Priority of debts-(1) For the purposes of Schedule 8C of the Companies Act 1955, every levy (including any amount by which the levy has been increased under section 268 of this 176 Fisheries
Act) payable under Part XII of this Act shall have the priority accorded to sums referred to in clause 5 of that Schedule. (2) For the purposes of the Seventh Schedule to the Companies Act 1993 every levy (including any amount by which the levy has been increased under section 268 of this Act) 5 payable under Part XII of this Act shall have the priority accorded to sums referred to in clause 5 of that Schedule. (3) For the purposes of section 104 of the Insolvency Act 1967, every levy (including any amount by which the levy has been increased under section 268 of this Act) payable under 10 Part XII of this Act shall have the priority accorded to sums referred to in subsection (1)(e) of the said section 104. Cf. 1983, No. 14, s. 107K; 1994, No. 87, s. 4
273. Suspension of permit or fish receiveFs licence where levies unpaid-(1) Where any person who holds any 15 fishing permit or fish receiver's licence or controlled fishery licence- (a) Is liable to pay any levy imposed under section 258 of this Act, the payment of which has not been waived under section 270 (2) of this Act; and 20 (b) Does not pay the outstanding amount of the levy within 2 months after the date by which payment of the levy is due,- then, regardless of whether or not the levy has been imposed on that person as a holder of such a permit or licence, the chief 25 executive, after giving that person notice in writing of his or her intention to do so, may, by notice in writing to that person, suspend any fishing permit or fish receiver's licence or controlled fishery licence held by that person. (2) Where the holder concerned holds 2 or more fishing 30 permits or flsh receiver's licences or controlled fishery licences, or holds any combination of 2 or more of them, the chief executive may suspend such of them as he or she considers appropriate. (3) Every fishing permit or fish receiver's licence or controlled 35 fishery licence suspended under this section shall have no effect during the period of the suspension. (4) The chief executive- (a) Shall lift a suspension under this section if the outstanding amount of the levy (including any additional amount 40 payable under section 268 of this Act) is paid to the chief executive: (b) May, conditionally or unconditionally, lift a suspension under this section if the chief executive and the Fisheries 177
person liable to pay the outstanding amount of the levy enter into an arrangement or agreement for repayment of that amount. 0) A Court may at any time, on application by the holder of 5 a hshing permit or fish receiver's licence or controlled fishery licence suspended under this section, by order lift the suspension. Any such order may be subject to such sureties and conditions as the Court may specify. C£ 1983, No. 14, s. 10711; 1994, No. 87, s. 4
10 274. Contracting out of contestable services-(1)The Minister may from time to time, on behalf of the Crown, and with such advice and assistance from the Ministry or such other persons as the Minister may require, negotiate and enter into agreements with the Ministry, any Crown Research Institute or 15 other instrument of the Crown, or any other person (hereafter in this Part of this Act referred to as a service provider) for the provision of any contestable service. (2) For the purposes of this section, contestable services are- (a) Fisheries fish assessment and fisheries research: 20 (b) Fisheries management (including registries, statutory reporting, and administration): (c) The collection of levies and other amounts payable to the Crown under this Act: (d) The management of catch data and effort data: 25 (e) The observer programme referred to in section 217 of this Act: (f) Satellite vessel monitoring. (3) Nothing in this section limits- (a) Any other enactment; or 30 (b) Any powers that the Minister or the Crown has under any enactment or rule of law.
275. Standards and specification relating to contestable services-(1) The Minister may from time to time prescribe such standards and specifications relating to fisheries products 35 and fisheries services as may be necessary or expedient for the purposes of section 274 of this Act. (2) The Minister shall not prescribe such standards or specifications unless he or she has consulted those persons and organisations referred to in section 260 (4) (a) of this Act. 40 (3) Standards and specifications prescribed under subsection (1) of this section shall be complied with by every service provider to whom such standards and specifications apply. (4) Any agreement under section 274 of this Act - 178 Fisheries
(a) Shall be read subject to all applicable standards and specifications prescribed under subsection (1) of this section; and (b) May contain any other standards and specifications relating to contestable services. 5
276. Transfer or functions and powers-(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, transfer to any instrument of the Crown or body corporate or otherperson one or more of the functions, duties, or powers oi the chief 10 executive or the Ministry under this Act, subject to such conditions as may be specified in the order. (2) Subject to subsection (5) of this section, the instrument of the Crown or body corporate or other person to whom any functions, duties, or powers are transferred under this section 15 shall have and may excercise, as from the date specified for the purpose in the order, the functions, duties, or powers so transferred, as if those functions, duties, or powers had been conferred or imposed on the instrument of the Crown or body corporate directly by this Act and not by an order under this 20 section. (3) Except as an order under this section otherwise provides, while it has effect, the chief executive shall not exercise or perform any function, duty, or power transferred by the order. (4) The Governor-General may from time to time, by Order 25 in Council, revoke any transfer effected under this section; and, in that case, the chiei executive shall, as from the date specified for the purpose in the order, resume the exercise or performance of the functions, duties, or powers to which the order applies. 30 (5) Every function, duty, or power transferred by an order under this section shall be exercised or performed subject to such conditions as may be specified in the order.
277. Transfer of employees-(1) Notwithstanding anything in section 61A of the State Sector Act 1988, where the 35 chief executive ftnds, in respect of any duties being carried out by the Ministry, that those duties are no longer to be carried out by the Ministry and are to be carried out (in whole or in part) by another Government department or a Crown Research Institute, or other agency the chief executive and the chief 40 executive of that other Government department or Crown Research Institute or agency maj subject to subsection (3) of this section, agree to the transfer, irom the Ministry (hereafter in Fisheries 179
this section and in sections 278 and 279 of this Act referred to as the transferor) to that other Government department or Crown Research Institute or agency (hereafter m this section and in sections 278 and 279 of this Act referred to as a transferee), of all 5 or any of the employees of the Ministry who are carrying out those duties. (2) Before transferring any employee under subsection (1) of this section, the respective chief executives of the Ministry and other Government department or the Crown Research Institute 10 or other agenEY shall consult with the employee about the proposed transier. (3) The power conferred by this section to transfer any employee is subject to the provisions (if any) of the employment contract applying to that employee relating to the Transfer of 15 employees. Cf. 1992, No. 47, s. 39; 1993, No. 23, s. 13
278. Employment of transferred employee deemed to be continuous-(1) Every employee of the Ministry who is transferred to another Government department or to a Crown 20 Research Institute or other agency pursuant to section 277 of this Act shall, on the date of the transfer, become an employee of that other Government department or the Crown Research Institute or other agency, but, for the purposes of every enactment, law, determination, contract, and agreement 25 relating to the employment of each such employee, the contract of employment of that employee shall be deemed to have been unbroken and that employee's period of service with the Ministry, and every other period of service of that employee that is recognised by the Ministry as continuous 30 service, shall be deemed to have been a period of service with that other Government department or the Crown Research Institute or other agency. (2) No employee of the Ministry who is transferred to another Government department or to a Crown Research 35 Institute or other agency pursuant to section 277 of this Act shall be entitled to receive any payment or other benefit by reason only of that person ceasing by virtue of that transfer to be an employee of the Ministry. (3) Every person who, immediately before the 1st day ofJuly 40 1995, was an ofhcer or employee of the Ministry of Agriculture and Fisheries and who, on or before that date, has not- (a) Been transferred to a Government department or Crown Research Institute or other agency pursuant to section 277 of this Act; or 180 Fisheries
(b) Had his or her employment terminated by the Ministry of Agriculture and Fisheries,- shall be deemed to be employed by the Ministry of Agriculture on and from that date, on the same terms and conditions of employment as applied to that person immediately before that 5 date. (4) For the purposes of every enactment, law, determination, contract, and agreement relating to the employment of each employee who by virtue of subsection (3) of this section is deemed an employee of the Ministry of Agriculture, the 10 contract of employment that applied immediately before the 1st day of July 1995 in respect of that employee shall be deemed to have been unbroken and any period or service shall be deemed to have been a period of continuous service in the Ministry of Agriculture. 15 Cf. 1992, No. 47, s. 41; 1993, No. 23, s. 15
279. Membership of Government Superannuation Fund-Every person who, immediately before becoming an employee of a Crown Research Institute pursuant to section 277 of this Act, was an officer or employee of the Ministry of 20 Agriculture and Fisheries and was a contributor to the Government Superannuation Fund under the Government Superannuation Fund Act 1956 shall, for the purposes of that Act, be deemed to be employed in the Government service for so long as that person continues to be employed by the Crown 25 Research Institute and that Act shall be deemed to apply to that person in all respects as if that person's service with the Crown Research Institute is Government service.
National Fisheries Adoisory Council
280. Minister nnay establish National Fisheries 30 Advisory Council-(1) The Minister may establish an advisory committee to be known as the National Fisheries Advisory Council to assist the Minister in performing any of the functions or exercising any of the powers of the Minister. (2) The Minister may authorise the Council to make such 35 enquiries or to conduct such research or to make such reports as may assist the efficient performance or exercise of any of the Minister's functions or powers. (3) Without limiting subsection (2) of this section, the functions of the Council shall include advising the Minister on - 40 (a) The sustainable utilisation of New Zealand's fisheries resources, including the setting of total allowable Fisheries 181
catches, total allowable commercial catches, and regulatory controls: (b) Fisheries manaBement, including the creation and allocation ot access rights to new species: 5 (c) The establishment of priorities, standards, and specifications for research: (d) Fisheries administration services, including planning and the establishment of priorities, standards, and specifications: 10 (e) Enforcement issues, including the establishment of standards and specifications: (f) The resolution of disputes relating to access to fisheries, including the process and priorities.
281. Remuneration of members-(1) The National 15 Fisheries Advisory Council is hereby declared to be a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951. (2) There shall be paid to the members of the Council, out of money appropriated by Parliament for the purpose, 20 remuneration Dy way of fees, salary, or allowances, and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly. (3) No person shall be deemed to be employed in the service 25 of Her Majesty by reason of appointment to the Council under section 282 of this Act.
282. Members-(1) The National Fisheries Advisory Council shall consist of such members as the Minister may from time to time appoint after consultation with- 30 (a) The Minister of Maori Affairs, the Minister of Conservation, the Minister of Research, Science, and Technology, and the Minister for the Environment; and (b) Such environmental organisations, recreational flshers, 35 Maori, fishing industry organisations, and other persons and organisations as the Minister considers appropriate to consult. (2) Every member of the Council shall hold office during the pleasure of the Minister and may be removed from office at 40 any time by the Minister as the Minister thinks fit. (3) Any member of the Council may resign his or her office at any time by notice in writing to the Minister. 182 Fisheries
(4) If any member of the Council dies, resigns, or his or her office becomes vacant, or he or she is removed from office, the vacancy shall be filled in the same manner as the appointment of the vacating member. Every person so appointed shall hold office for the residue of the term for which his or her 5 predecessor was appointed.
283. Chairperson-(1) The Minister shall from time to time appoint one of the members of the National Fisheries Advisory Council to be Chairperson of the Council. (2) The Chairperson shall be responsible for supervising and 10 directing the work of the Council.
284. Administration-The National Fisheries Advisory Council shall arrange for the provision of such secretarial, recording, accounting, and clerical services as may be necessary to enable the Council to discharge its functions. 15
285. Certain powers of the Minister not to be delegated-Notwithstanding anything to the contrary in this Act or any other enactment, the Minister shall not delegate to any person the power- (a) To appoint or renew the appointment of members of the 20 National Fisheries Advisory Council under section 282 of this Act; or (b) To remove any member of the Council from office under section 282 of this Act.
286. Reports-(1) The National Fisheries Advisory Council 25 shall furnish the Minister and the chief executive with a copy of every report prepared by the Council. (2) As soon as practicable after the 30th day ofJune in every year, the Council shall furnish the Minister and the chief executive with a general report of its operations for the period 30 of 12 months that ended on that day. (3) As soon as practicable after receiving the general report received under subsection (2) of this section, the Minister shalllay before the House of Representatives a copy of the report.
287. Funds-The funds of the National Fisheries Advisory 35 Council shall consist of- (a) Any money received by the Council from levies or fees or charges prescribed by or under this Act or any other enactment; and Fisheries 183
(b) Any money appropriated by Parliament for the purposes of the Council and paid to the Council; and (c) All accumulations of income derived from any such money.
5 Allocation Appeals 288. Allocation Appeals Board established-(1) There is hereby established the Allocation Appeals Board. (2) The Allocation Appeals Board shall- (a) Hear and determine disputes referred to it under section 36 10 of this Act; and (b) Hear and determine appeals lodged under section 40 of this Act. (3) The Allocation Appeals Board shall consist of- (a) Members being persons who have held a practising 15 certificate as a barrister and solicitor for at least 7 years, of whom one shall be the Chairperson of the Board; and (b) Members appointed after consultation with the New Zealand Seafood Industry Board; and 20 (c) Members who shall not be officers or employees of the Ministry. (4) All members of the Allocation Appeals Board shall be appointed by the Minister by notice in the Gazette and shall be appointed for a term of 3 years of such lesser term as shall be 25 specified in the notice. CE 1983, No. 14, s. 28A (1)-(4); 1986, No. 34, s. 9; 1990, No. 29, s. 4
289. Board to appoint committees-(1) The Allocation Appeals Board shall appoint such committees as it considers 30 necessary to enable it to discharge its functions. (2) Every such committee shall consist of- (a) One member of the Board, being a person who has held a practising certificate as a barrister and solicitor for at least 7 years, who shall be the Chairperson of the 35 committee; and (b) One member of the Board appointed after consultation with the Seafood Industry Board; and (c) One member of the Board who shall not be an officer or employee of the Ministry. 40 (3) The function of each committee is- (a) To hear and determine such appeals made to the Board under this Act as the Board may from time to time refer to the committee; and 184 Fisheries
(b) To carry out such other functions as the Board may delegate in writing to the committee. (4) A decision of any committee of the Board is a decision of the Board.
290. Provisions relating to functions of Board-(1) In 5 carrying out its functions, the Allocation Appeals Board has jurisdiction to consider the following: (a) Whether or not a person is the person named m a current permit or current licence of the appropriate kind as the holder on any particular day or days: 10 (b) Whether or not a fisher has a catch history or individual catch entitlement entitling the fisher to an allocation of provisional catch history: (c) The amount of provisional catch history to which a fisher is entitled: 15 (d) The transfer of provisional catch history or individual catch entitlements and any associated matter. (2) The Board shall not- (a) Order the allocation or transfer of any provisional individual transferable quota or individual 20 transferable quota; or (b) Examine, review, or consider any decision of the chief executive referred to in section 41 of this Act. (3) The Board has all the powers necessary to carry out its functions. 25
291. Members-(1) Any member of the Allocation Appeals Board may resign his or her office at any time by notice in writing to the Minister. (2) Any member of the Board may be removed from office at any time by the Minister for disability, bankruptcy, neglect of 30 duty, or misconduct, proved to the satisfaction of the Minister. (3) If any member of the Board dies, resigns, or his or her office becomes vacant, or he or she is removed from office, the vacancy shall be filled in the same manner as the appointment of the vacating member. Every person so appointed shall hold 35 office for the residue of the term for which his or her predecessor was appointed. Cf. 1983, No. 14, ss. 13 (4)-(6), 28A (5); 1986, No. 34, s. 9
292. Deputies of members-(1) The Minister may, either concurrently with the appointment of a member to the 40 Allocation Appeals Board, or at any time thereafter, appoint a deputy for the member; and such deputy may act in place of Fisheries 185
the member to whom he or she is appointed deputy while that member is prevented by illness, aosence, or other sufficient cause from performing the duties of his or her office; but any such appointment as deputy may at any time be revoked by 5 the Minister. (2) Any deputy appointed under this section shall, while he or she acts as such, be deemed to be a member of the Board. 0) Before appointing a deputy to act for any member referred to in section 289 (2) (b) of this Act, the Minister shall 10 consult the Seafood Industry Board about the proposed appointment of the deputy. (4) No appointment of a deputy and no acts done by him or her as such, and no acts done by the Board while any deputy is acting as such, shall in any proceedings be questioned on the 15 grounds that the occasion for his or her appointment or for his or her so acting had not arisen or had ceased. Cf. 1983, No. 14, ss. 15,28 (6); 1986, No. 34, s. 9
293. Meetings of Board-The powers of the Allocation Appeals Board shall not be affected by any vacancy in its 20 membership, nor shall the proceedings of the Board be invalidated merely because ot the subsequent discovery that some defect existed in the appointment ot any member. Cf. 1983, No. 14, ss. 17,28 (5); 1986, No. 34, s. 9
294. Board may regulate its own procedure-Subject to 25 the provisions of section 295 of this Act, the Board may regulate its procedure in such manner as it thinks fit.
295. Meetings to be held in public except in certain circumstances-(1) Except as provided by subsections (2) to (4) of this section, every hearing of the Allocation Appeals Board 30 shall be in public. (2) The Board may deliberate in private as to its decision in any matter or as to any question arising in the course of any proceedings before it. (3) Where the Authority is satisfied that it is desirable to do 35 so by reason of the confidential nature of any evidence or matter (including details of the private financial circumstances of any person), or that the interests of any party to the hearing in having the whole or any part of the proceedings conducted in private outweigh the public interest in having the hearing 40 conducted in public, the Board may, on the application of any party to the proceedings, order that the whole or any part of the hearing snall be in private. 186 Fisheries
(4) In any case where a hearing is conducted in private, the Board may allow any particular person to attend the private hearing if it is satisfied that the person has a proper interest in the matter to be heard. Cf. 1983, No. 14, ss. 18(1), (2), (3), (5), 28A (5); 1986, No. 34, 5 S. 9
296. Fees and travelling allowances-(1) The Allocation Appeals Board is hereby declared to be a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951. 10 (2) There shall be paid to the members of the Board, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances, and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that 15 Act shall apply accordingly. CE 1983, No. 14, ss. 19, 28A (5); 1986, No. 34, s. 9
297. Administration of Board-(1) The chief executive shall designate a person (whether or not an employee of the Ministry) to be Secretary to the Allocation Appeals Board, and 20 shall also provide such secretarial, recording, accounting, and clerical services as may be necessary to the enable the Board to discharge its functions. (2) All expenses incurred in respect of the administration of the Board shall be paid out of money from time to time 25 appropriated by Parliament for the purpose. Cf. 1983, No. 14, ss. 20, 28 (5); 1986, No. 34, s. 9
298. Money received by Board and refunds-(1) All fees and other money received by the Allocation Appeals Board shall be dealt with as if it were a receipt of the Ministry and 30 shall be paid into a Crown Bank Account. (2) If the Board is satisfied that any fee or other money received by it has been paid in error or in excess of the amount properly payable, it may on its own volition or on application made to it within 3 years after the payment of that fee or other 35 money direct the chief executive to refund the fee or other money or the amount of the excess, as the case may require, to the person by whom it was paid. Fisheries 187
(3) All money payable by way of refund under subsection (2) of this section shall be paid out oi a Crown Bank Account without further appropriation than this section. Cf. 1983, No. 14, ss. 21, 28 (5); 1986, No. 34, s. 9
5 299. Representation of parties-(1) The chief executive shall be a party to all proceedings before the Allocation Appeals Board and shall be entitled to appear and be heard either in person or by counsel or agent, and shall have the right to produce evidence and cross-examine witnesses. 10 (2) Every person who refers a dispute under section 36 or lodges an appeal under section 40 of this Act shall be a party to those proceedings before the Allocation Appeals Board and shall be entitled to appear and be heard either in person or by counsel or agent, and shall have the right to produce evidence 15 and cross-examine witnesses. (3) The appellant in any proceedings before the Board shall serve on the following bodies copies of all proceedings ftled in respect of a matter referred to in paragraph (a) or paragraph (b) or paragraph (c) of section 290 (1) of this Act- 20 (a) The New Zealand Seafood Industry Board: (b) The New Zealand Fishing Industry Association Inc: (c) The New Zealand Federation of Commercial Fishermen Inc: (d) The New Zealand Fishing Industry Guild: 25 (e) The Commission;- and each body that makes a submission after being so requested shall be a party to the proceedings. (4) Any body referred to in subsection (3) of this section shall be entitled to appear either by counsel or agent and to produce 30 evidence and to cross-examine witnesses. (5) The Board, after receiving a request by a body referred to in subsection (3) of this section or on its own motion, may but is not obliged to grant leave to the body to make submissions to the Board. 35 (6) Any body that receives evidence or any other documents concerning proceedings before the Board from the Board under this section shall keep in strict confidence any evidence that is commercially sensitive and make such commercially sensitive evidence available only to those employees or other persons 40 who are directly involved in the body's evidence or submissions. Cf. 1983, No. 14, ss.22, 28 (8), (9); 1986, No. 34, s. 9 188 Fisheries
300. Evidence before Board-(1) The Allocation Appeals Board may receive in evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matter before it, whether or not the same would otherwise be admissible in a Court of law. 5 (2) The Board may, if it thinks fit in respect of any matter before it,- (a) Examine on oath or otherwise,- (i) The appellant; or (ii) Any other party (including any representative of 10 a body referred to in section 299 (3) of this Act); or (iii) Any person whose evidence has been received by the Board under subsection (1) of this section: (b) Require any person to verify by statutory declaration any statement made by him or her with respect to the 15 proceedings. (3) Any proceedings (including any application or filing of any information prior to ay proceedings) before the Board shall be judicial proceedings ior the purposes of this Act or any other Act (including the Crimes Act 1961). 20 Cf. 1983, No. 14, ss. 23, 28A (5); 1986, No. 34, s. 9
301. Decision of Board-(1) In considering any matter before it, the Allocation Appeals Board shall confine itself to the evidence presented by tne parties (including any evidence presented by any body under section 299 of this Act) and its own 25 expertise and knowledge. (2) Every decision of the Board shall- (a) Be in writing; and (b) State in full the reasons for the decision; and (c) Be furnished to the parties; and 30 (d) Be available to the public, except to the extent that it contains information that is considered by the Board to be commercially sensitive. (3) The Board shall record its decisions in a register. (4) The Board is not bound by its previous decisions. 35 (5) Every decision of the Board shall be final unless challenged by an application for review under Part I of the Judicature Amendment Act 1972. (6) Notwithstanding any other enactment or rule of law, a Court shall not hear or determine, and no person shall make or 40 commence, any application or other proceedings whatever in respect of a decision of the Board unless the application is or the proceedings are made or commenced within 3 months after the date on which the person is notified of the decision. Fisheries 189
(7) Every decision of the Board shall contain a statement as to the effect of subsection (5) of this section.
Cf. 1983, No. 14, s. 28I; 1986, No. 34, s. 10; 1989, No. 159, s. 55; 1992, No. 137, s. 2
5 PART XIV
MISCELLANEOUS PROVISIONS
Regulations 302. Regulations-(1) The Governor-General mal from time to time, by Order in Council, make regulations tor all or 10 any of the following purposes: (a) Generally regulating fishing in New Zealand and New Zealand hsheries waters: (b) Specify controls in respect of the harvesting of flsh for the purposes of this Act: 15 (c) Prescribing individual catch entitlements in respect of any flsh not subject to a quota management system under this Act, whether by reference to any fishery or method of fishing in any part of New Zealand fisheries waters or otherwise; and authorising the 20 Minister to allocate any such individual catch entitlements to such commercial fisher or commercial flshers as the Minister may specify by notice in the Gazette: (d) Providing for the issue, refusal, renewal, suspension, 25 revocation, modification, and imposition by the regulations or the chief executive of conditions on licences for persons who wish to acquire or be in possession in prescribed circumstances of fish taken for the purpose of sale; providing for the recognition 30 of licences granted under the Seafood Industry Board Act 1963 or the Meat Act 1981 as licences for the purposes of such regulations: (e) Requiring, or authorising the chief executive to require,- (i) Any applicant for any licence, permit, approval, 35 or other authority under this Act; or (ii) The holder of any such authority- to furnish the chief executive with such information as the chief executive may reasonably require for the purposes of the regulations: 40 (fj Defining the vessels or classes or types of vessels to which any regulations are to apply: 190 Fisheries
(g) Conferring, and making any necessary provisions with respect to, rights of appeal against decisions made under the regulations: (h) Prescribing details relating to the registration of fishing vessels and related matters, the method or methods 5 of identifying fishing vessels, specifying identification marks or symbols or distinguishing flags to be carried by such vessels and by tenders and similar vessels carried by or attached to or used in conjunction with registered fishing vessels, and the identihcation marks 10 on sails, nets or seines, and other gear used in fishing for sale, by vessels or otherwise: (i) Prescribing the accounts, records, returns, and information that any person or class of person may be required to keep or furnish pursuant to section 189 or any other 15 provision of this Act, and providing for- (i) The manner and form in which such accounts, records, returns, and information are to be kept or furnished: (ii) The time for or within which such accounts, 20 records, returns, and information are to be kept or furnished: (iii) The person by or to whom such accounts, records, returns, and information are to be kept or furnished: 25 (i) Specifying for the purposes of this Act rules and other provisions as to the manner and order in which catch is to be counted against annual catch entitlements: (k) Prescribing the matters in respect of which fees are payable under this Act, the amounts of those fees or 30 the method by which they are to be assessed, the persons liable for payment of the fees, and the circumstances in which the Minister or the chief executive may remit or waive payment of the whole or any part of the fees: 35 (1) Prescribing offences in respect of the contravention of, or non-compliance with, any regulations made under this Act; and prescribing in respect of such offences,- (i) In the case of commercial fishers, fines not 40 exceeding $100,000: (ii) In the case of other fishers, fines not exceeding $5,000 for a first offence and fines not exceeding $ 10,000 for a second or subsequent offence where the second or subsequent offence is committed within 3 45 Fisheries 191
years after the date of the commission of the flrst offence: (m) Prescribing infringement fees not exceeding $1,000 in respect of offences to which section 257 of this Act 5 applies; and prescribing different infringement fees for difTerent species of hsh, stock management areas, methods of taking, sizes of the fish taken, amounts of fish taken, or classes of fisher, or on any other difTerential basis whatever: 10 (n) Prescribing transitional and savings provisions relating to the coming into force of this Act, which may be in addition to or in substitution of any of the transitional or savings provisions of Part XV of this Act; and, without limiting the generality of the foregoing, any 15 such regulations may provide that, subject to such conditions as are specified in the regulations, specified provisions ot this Act shall not apply, or specified provisions of Acts repealed or amended by this Act, or of regulations, Orders in Council, notices, 20 permits, licences, approvals, authorisations, consents, or rights made or given thereunder shall continue to apply during a specified transitional period: (o) Implementing any provisions of any bilateral or multilateral treaty, convention, or agreement, to 25 which New Zealand is a party, and any understanding concluded by the Government of New Zealand and the government of any other country; and declaring any such regulations to apply beyond the outer limits of New Zealand fisheries waters in respect of any 30 New Zealand citizen or any New Zealand resident or other any company or incorporated body incorporated in New Zealand or any New Zealand vessel: (p) Providing for such other matters as are contemplated by 35 or necessary for giving full effect to the provisions of this Act and for its due administration. (2) Without limiting anything in subsection (1) of this section, any such regulations may- (a) Regulate or prohibit the taking, buying, selling, exposing 40 for sale, consigning for sale, transporting, processing, preparing or offering for consumption in any public eating house, acquiring, receiving, or having in possession any fish or any part or particular state or condition of any fish: 192 Fisheries
(b) Regulate the construction or provision and maintenance of facilities on vessels, vehicles or other conveyances, or in premises, for the handling, transportation, preservation, or storage of fish, or the preservation alive of Mollusca, Crustacea, and Echinodermata in 5 storage or in transit to any establishment where such fish are processed; and prescribing measures to protect from sun, weather, or contamination any fish being handled or transported: (c) Regulate the quantity of flsh that may at any one time be 10 on board any vehicle or vessel or be kept or conveyed on any vehicle or vessel or animal, or kept in any container, packae, or place, or in the possession of any person or ot any prescribed number of persons: (d) Provide tor the protection of shellfish and shellfish beds, 15 including the regulation of places where shellfish may be opened, and for the marking out of boundaries of shellhsh beds: (e) Authorise the Minister or the chief executive to issue or impose any authority, approval, requirement, 20 prohibition, restriction, condition, direction, mstruction, order, permit, notice, or circular: (f) Exempt from compliance with or the application of any provisions of the regulations any person or species or vessel, or authorise the Minister or the chief executive 25 to grant such exemptions as the regulations may specify. (3) Without limiting anything in subsection (1) of this section, any regulations made under paragraph (j) of that subsection may-- 30 (a) Authorise the chief executive to determine monthly or other catch balances in accordance with the regulations: (b) Specify the manner of calculating catch and the information or evidence to be used as the basis for 35 calculating catch: (c) Specify priorities to be applied in the counting of catch: (d) Specify periods to be used for the purposes of the regulations: (e) Provide for the notification of catch balances and rights of 40 review in respect of those balances: Fisheries 193
(fj Specify different rules for different kinds of annual catch entitlements or catching rights.
Cf. 1983, No. 14, s. 89 (1), (lx), (4), (5), (6); 1986, No. 34, s. 23 (5)
5 303. Special regulations relating to freshwater fish farming-Regulations may be made under section 302 of this Act- (a) Authorising persons, to be registered for the purpose, to construct and maintain ponds as fish farms for 10 breeding and rearing fish (except trout) for sale subject to such conditions as are specified in the regulations: (b) Regulating the operation of fish farms subject to such conditions as are specified in the resdations, and 15 prohibiting the operation of any such ish farm, and the sale, disposal, transport, or export of any fish from such a fish farm without a licence: (c) Providing for the registration of persons who may hold licences to operate fish farms and for the 20 qualifications those persons shall be required to hold and the conditions with which they shall be required to comply before being granted registration and in order to remain registered: (d) Providing for the appointment of officers, including any 25 class of officers with specialist qualifications, to inspect such fish farms and ensure that any regulations made under this section are enforced and for the inspection of any such fish farm or facilities for processing or storing any fish reared on the farm: 30 (e) Providing for the application for, issue, revocation, renewal, variation, and transfer of licences in respect of any such operation, and the form and contents of any such licence; and prescribing the fees payable in advance in respect of any such matter relating to any 35 such licence and the fees payable annually or six- monthly in advance for the continued validity of any such licence: (f) Specifying the species, sub-species, varieties, or hybrids of fish that may be bred or reared in any such farm, and 40 regulations the types and quantities of food that may be fed to any such fish, and the methods of feeding: (g) Regulating or prohibiting the canning of any such fish, their sale or other disposal, or possession: 194 Fisheries
(h) Providing for the keeping by the licensee of any fish farm of records of fish acquired, kept, and disposed of, and for the keeping of records relating to those fish by any other licensee or other person: (i) Prescribing the measures to be taken to avoid the outbreak 5 or on an outbreak of any disease among the fish, and authorising or requiring the taking of any specimen, the testing of any thing, or the sampling of any substance present on any fish farm and authorising or requiring the removal of any specimen or sample, or 10 the destruction of diseased ilsh, whether with or without payment of compensation.
Cf. 1983, No. 14, s. 91; 1991, No. 149, s. 26 (1)
304. Circulars-(1) Regulations under this Act may provide for the promulgation from time to time b;y the chief executive 15 of circulars specifying general criteria ior the drawing up, accomplishment, demonstration, carrying on, or provision for any act, plan, proposal, matter, system, process, or thing. (2) Where, pursuant to regulations made under this Act, any act, plan, proposal, matter, system, process, or thing must be- 20 (a) Approved by the chief executive or a Fishery Officer, it shall be deemed so to have been approved if it is in conformity with general criteria relating to it specified in a circular or circulars promulgated pursuant to such regulations and for the time being in 25 Torce: (b) Accomplished, demonstrated, carried on, or provided for to the satisfaction of the chief executive or a Fishery Officer, it shall be deemed so to have been accomplished, demonstrated, carried on, or provided 30 for in conformity with general criteria relating to it specified in a circular or circulars promulgated pursuant to such regulations and for the time being in iorce: (c) Accomplished, demonstrated, carried on, or provided for 35 to an extent that, in the opinion of the chief executive or a Fishery Officer, meets or tends to meet some particular result, it shall be deemed so to have been accomplished, demonstrated, carried on, or provided for m conformity with general criteria relating to it 40 specified in a circular or circulars promulgated pursuant to such regulations and for the time being in rorce. Fisheries 195
(3) The powers of the chief executive or a Fishery Officer to approve or be satisfied of, or to take any action (a prerequisite to the taking of which is that he or she may have a particular opinion about), any act, plan, proposal, matter, system, process, 5 or thing shall not be limited or affected by any matter contained in a circular promulgated pursuant to such regulations. CE 1983, No. 14, s. 92
305. General provisions as to regulations-(1) Any 10 regulations made under this Act- (a) May apply generally throughout New Zealand or New Zealand flsheries waters or be made to apply only within such area or areas as may be defined in that behalf: 15 (b) May apply special conditions or confer special rights in relation to non-commercial fishing by specified communities. (2) All authorities, approvals, requirements, conditions, directions, instructions, orders, permits, notices, and circulars 20 issued or imposed under regulations made under this Act shall have effect according to their tenor and shall be complied with by all persons affected thereby.
306. Certain notices to have status of regulations- (1) Except as provided in subsection (2) of this section, every 25 notice given under this Act and required to be published in the Gazette is hereby deemed for the purposes of the Acts Interpretation Act 1924 and the Acts and Regulations Publication Act 1989 to be a regulation. (2) Nothing in subsection (1) of this section shall apply to any 30 notice given under any of sections 18, 28 (2) (a), 30 (2) (b), 62, 76 (4), 79 (4), and 82 of this Act. Cf. 1983, No. 14, s. 92A; 1986, No. 34, s. 26
307. Application of Commodity Levies Act 1990- (1) Notwithstanding anything in the Commodity Levies Act 35 1990, that Act shall apply to any commodity to which this Act applies with the following modifications: (a) It shall be sufficient compliance with section 5 (2) (ac) if the Minister is satisfied that the ballot paper indicated that the imposition of the levy was proposed to be on 40 the basis or 1 of the following: (i) Quota allocated in respect of the commodity under that Act: 196 Fisheries
(ii) The landed value of the commodity: (iii) The harvesting rights in respect of the commodity: (b) It shall be sufficient compliance with paragraphs (ah) to (ak) of section 5 (2) if the Minister is satisfied that, 5 during such period before the support referendum as the Minister thinks flt, the quota held by or the value of commodity landed by or the harvesting rights of supporters was more than half of the quota held by or the value of commodity landed by or the 10 harvesting rights of all participants, as the case may be: (c) The enhancement of fisheries resources is hereby declared to be a purpose for which a levy may be spent under section 10 (2). 15
308. Giving of notices, etc.-(1) Except as otherwise specified in this Act or in regulations made under it, where pursuant to this Act any notice or other document is to be given, served on, or furnished to any person, that notice or other document may be- 20 (a) Given to the person personally; or (b) Sent by registered post to the person at the person's usual or last known place of business or abode; or (c) Given personally to any other person authorised to act on behalf of the person; or 25 (d) Sent by registered post to that other person at that other person's usual or last known place of business or abode; or (e) Except in the case of any notice or document to be Siven or served in the course of or for the purpose oi any 30 proceedings for an offence against this Act or any regulations made under it, sent by post to the person, or any other person authorised to act on the person's behalf, at that person's or other person's usual or last known place or business or abode. 35 (2) Any notice or other document so sent by post or registered post shall be deemed to have been given, served, or received 7 days after the date on which it was posted, unless the person to whom it was posted proves that, otherwise than through that person's fault, the notice or document was not 40 received. Cf. 1983, No. 14, s. 88A; 1990, No. 29, s. 41 Fisheries 197
PART XV
REPEALS, AMENDMENTS, VALIDATIONS, SAVINGS, AND TRANSITIONAL PROVISIONS
Repeats and Amendments
5 809. Repeals-(1) The enactments specified in the Fifth Schedule to this Act are hereby repealed. (2) Without limiting anythmg in the Acts Interpretation Act 1924, the repeal of any enactment specified in Fifth Schedule to this Act does not prejudice- 10 (a) Any amendment made by that enactment to any enactment not specified in that Schedule; or (b) Any other provision in any enactment specified in that Schedule (other than a provision amending the Fisheries Act 1983 or any amendment to that Act).
15 310. Amendments to Fishing Industry Board Act 1963-(1) The Fishing Industry Board Act 1963 may hereafter be cited as the Seafood Industry Board Act 1963. (2) The Short Title of the said Act is hereby consequentially amended by omitting the word "Fishing", and substituting the 20 word "Seatood". (3) Every reference in any enactment to the Fishing Industry Board Act 1963 is hereby consequentially amended by omitting the word "Fishins", and substituting the word "Seatood". (4) Section 2 oi the said Act is hereby amended by omitting 25 from the definition of the term "Board" the word "Fishing", and substituting the word "Seafood". (5) Section 3 of the said Act, and heading immediately above that section, are hereby amended by omitting the words "New Zealand Fishing Industry Board" wherever they occur, and 30 substituting in each case the words "New Zealand Seafood Industry Board". (6) The New Zealand Seafood Industry Board established by section 3 (1) of the Fishing Industry Board Act 1963 (as amended by subsection (5) of this section) is hereby declared to 35 be the same body as the New Zealand Fishing Industry Board established by that section and in existence immediately before the commencement of this section. (7) Every reference to the New Zealand Fishing Industry Board in any Act, regulation, rule, order, other enactment, 40 agreement, deed, instrument, application, notice, or other document whatever shall hereafter be read as a reference to the New Zealand Seafood Industry Board. 198 Fisheries
311. Amendments to other enactments-The Acts specified in the Sixth Schedule to this Act are hereby amended in the manner indicated in that Schedule.
Savings and Transitional Provisions 312. Validation of certain decisions relating to 5 permits-Every decision of the Director-General of Agriculture and Fisheries in respect of- (a) The issue or cancellation of any fishing permit or special permit under the Fisheries Act 1983 that was in force immediately before the commencement of section 309 10 of this Act; or (b) The allocation or variation or cancellation of individual catch entitlements specified in any such permit; or (c) The imposition of any conditions on any such permit- is hereby declared to be and always to have been valid. 15
313. Savings relating to regulations etc.-(1) All regulations made under the Fisheries Act 1983 and in force immediately before the commencement of this section are hereby deemed to be regulations made under this Act and shall have effect accordingly. 20 (2) The Fisheries (Rock Lobster Total Allowable Commercial Catch) Order 1993 shall, until revoked, continue in force and apply as if it were a total allowable commercial catch set by the Minister under section 11 of this Act. For the purposes of this Act, the Governor-General may, by Order in Council, revoke 25 the said order. (3) The repeals effected by section 309 of this Act shall not affect any amendment made to any enactment by any of the following enactments: (a) Section 108 (5) of the Fisheries Act 1983: 30 (b) Section 30 of the Fisheries Amendment Act 1986: (c) Sections 57 and 58 of the Fisheries Amendment Act 1990: (d) Section 31 of the Fisheries Amendment Act 1991: (e) Part II of the Fisheries Amendment Act (No. 2) 1992: (f) Section 37 of the Treaty of Waitangi (Fisheries Claims) 35 Settlement Act 1992.
314. Savings relating to registration-(1) Every registration office established and declared under section 56 of the Fisheries Act 1983, and operating immediately before the commencement of this section, is hereby deemed to have been 40 appointed as a registry under section 170 of this Act. Fisheries 199
(2) Every register of fishing vessels kept under section 57 of that Act is hereby deemed to be a register of fishing vessels kept under section 171 of this Act.
315. Provisions relating to controlled fisheries- 5 (1) Parts II and III of the Fisheries Act 1983 shall continue to apply in respect of the controlled fisheries and controlled fisheries licences in force immediately before the commencement of this section by virtue of section 109 of that Act. 10 (2) For the purposes of this Act and any regulation made or notice given unaer this Act, if, in the opinion of a Fishery Officer, any controlled fish was taken from a controlled fishery or any gear or eguipment was used in a controlled fishery, being controlled hsh, gear, or equipment found on board a 15 fishing vessel by the Fishery Officer, then, in the absence of proof to the contrary, that controlled fish, gear, or equipment, as the case may be, shall be deemed to have been so taken or used. (3) In any proceedings, a certificate purporting to be signed 20 by the Secretary to the Fisheries Authority established under section 13 ( 1) ot the Fisheries Act 1983 to the effect that, on a date specified in the certificate,- (a) A vessel specified in the certificate was not the subject of a boat authority; or 25 (b) The defendant or any other named person was not the holder of a licence or a temporary licence; or (c) A copy of any licence, boat authority, or other document granted or issued under this Act purporting to be certified as correct by the Secretary to the Authority 30 or the chief executive or any Registrar- shall, in the absence of proof to the contrary, be sufficient evidence of the matter stated in the certificate. (4) Section 107D (3) of the Fisheries Act 1983 shall be deemed to continue to apply in respect of controlled fisheries in 35 existence after the repeal of that provision. (5) The Governor-General may by Order in Council declare that this section shall cease to apply in respect of any specified controlled fisheries and every such order shall have effect according to its tenor.
40 316. Savings relating to Fishery OfFicers, examiners, and observers-(1) Every person who, immediately before the commencement of section 190 of this Act, held office as a 200 Fisheries
Fishery Officer under section 76 of the Fisheries Act 1983, shall be deemed to be a Fishery Officer under the said section 190. (2) Every person who, immediately before the commencement of section 191 of this Act, held office as an Honorary Fishery Officer under section 77 of the Fisheries Act 5 1983, shall be deemed to be a Fishery Officer under the said section 191.
(3) Every person who, immediately before the commencement of section 216 of this Act, held office as an examiner under section 67B of the Fisheries Act 1983, shall be 10 deemed to be an examiner under the said section 216.
(4) Every person who, immediately before the commencement of section 218 of this Act, held office as a scientific observer under section 67D of the Fisheries Act 1983, shall be deemed to be an observer under the said section 218. 15
317. Conversion of transferable term quota (rock lobster)-(1) The following provisions apply to all transferable term quota (within the meanin of the Fisheries Act 1983) held by any person immediately beiore the commencement of this section: 20 (a) Until the close of the 31 st day of March that next follows the commencement of this section, the provisions of that Act with respect to such transferable term quota shall continue in force and apply to such quota: (b) On the commencement of the 1 st day of April that next 25 follows the commencement of this section, all such transferable term quota held at that time by any person shall be deemed to be individual transterable quota under this Act and the provisions of the Fisheries Act 1983 shall cease to apply in such cases, 30 and thereafter the provisions ot this Act, where applicable, shall apply. (2) For the avoidance of doubt, it is hereby declared that- (a) Nothing in this section shall be regarded as making spiny rock lobster or packhorse rock lobster subject to the 35 quota management system under the Fisheries Act 1983: (b) Nothing in section 28E of that Act applies, or has ever applied, to the allocation of such transferable term quota: 40 (d) On the commencement of the 1 st day of April that next follows the commencement of this section, all such transferable term quota held at that time by any Fisheries 201
person shall be deemed to have been allocated in accordance with Part 111 of this Act.
318. Savings relating to quota appeals relating to rock lobster-(1) All proceedings in respect of the allocation of any 5 transferable term quota (within the meaning of the Fisheries Act 1983) that were, immediately before the commencement of this section,- (a) In progress before any Court; or (b) In progress before the Quota Appeal Authority by virtue 10 of an order of any Court,- may be continued, completed, and enforced as if sections 28EA, 28FA, 28GA, 28HA, 284 28JA, 28KA, 28NA, and 280A of that Act were in force, and accordingly those provisions, where applicable, shall continue in torce and apply to those 15 proceedings. (2) The chief executive shall give effect to any decision in any proceedings referred to in subsection (1) of this section in such manner as may be necessary to ensure that the result achieved would be the same as the result that would have been achieved 20 if the provisions referred to in that subsection had not been repealed by section 309 of this Act.
319. Transitional fishing year for packhorse rock lobster-The period commencing on the 1st day of April 1994 and ending with the close of the 30th day of September 1995 is 25 hereby deemed to be a fishing year in relation to the packhorse rock lobster (rasus verreauxi)
320. Transitional provisions relating to marine farming permits and spat catching permits- Notwithstanding the repeal of the Fisheries Act 1983 by section 30 309 of this Act, the provisions of Part IVA and of sections 101A, 1014 105AA, 105AB, 107AA, and 107DA of that Act shall be deemed to continue to have effect with the followmg modification, namely, section 67R (2) (e) shall be read as if there were added the words ", subject to such conditions as the chief 35 executive may from time to time impose in that behalf'.
321. Transitional provisions relating to Southern Scallop Fishery-(1) Every quota held under Part IIB of the Fisheries Act 1983 immediately before the commencement of this section is hereby deemed to be individual transferable 40 quota and, subject to the succeeding provisions of this section, 202 Fisheries
Parts 111 to XIV of this Act, so far as they are applicable, shall apply accordingly. (2) Nothing in section 11 (2) of this Act applies to southern scallops. (3) The first total allowable commercial catch under this Act 5 for southern scallops shall be deemed to be 850 tonnes. (4) The southern scallop season for the time being shall be the season determined under section 28zM (3) of the Fisheries Act 1983. (5) Subsections (1) and (2) of section 28zM of the Fisheries Act 10 1983 (which subsections relate to the taking of scallops for sale outside the scallop season) shall be deemed to continue to have effect. (6) As soon as practicable after the commencement of this section, the Crown shall transfer to the Commission 106 tonnes 15 of southern scallop quota (being quota vested in the Crown by virtue of section 28zN (1) (a) of the Fisheries Act 1983) and the Commission shall deal with the quota in the manner specified in section 44A of the Maori Fisheries Act 1989 as if the uota were allocated to the Commission by section 28zK oi the 20 Fisheries Act 1983; provided that the 106 tonnes of southern scallop quota shall be divided equally between the persons specihed in Part V of Schedule lD to the Fisheries Act 1983. (7) The register maintained under section 28zR of the Fisheries Act 1983 shall be deemed to form part of the register 25 referred to in section 118 (1) (a) of this Act. (8) Section 28zzE of the Fisheries Act 1983 shall be deemed to continue to have effect until the close of a date appointed for the purpose by the Governor-General by Order in Council, as if there were omitted the words "the Southern Scallop Fishery 30 Advisory Committee and such other" and there were substituted the word "such". (9) Section 28zzG of the Fisheries Act 1983 shall be deemed to continue to have effect until the close of a date appointed for the purpose by the Governor-General by Order in Council, and 35 any money held under that section as at the close of that date shall be expended on the management and enhancement of the Southern Scallop Fishery. (10) The provisions of this section shall have effect notwithstanding the repeal of the Fisheries Act 1983 by section 40 309 of this Act.
322. Transitional levies-(1) The levies specified in the Second Schedule to the Fisheries Amendment Act 1994 shall continue to apply and shall be payable to the Crown in Fisheries 203
accordance with the provisions of this section and that Schedule. (2) The Ministry shall collect all such levies and those amounts shall be separately accounted for. 5 (3) Sections 268 to 273 of this Act, with any necessary modifications, shall apply in respect of any such levy. (4) The amounts specihed in Parts B, C, E, F, G, and H of the said Second Schedule are inclusive of any goods and services tax payable under the Goods and Services Tax Act 1985. 10 (5) The Governor-General may from time to time, by Order in Council, amend any provision of the said Second Schedule, and without limiting the generality of the foregoing, may alter the rate of any levy and add any new levy.
323. Expiry of section 322-Section 322 of this Act shall 15 expire on a date to be appointed by the Governor-General by Order in Council and shall, as fom that expiry, be deemed to have been repealed.
824. Correction of species names in Fisheries (Quota Management Areas, Total Allowable Catches, and Catch 20 Histories) Notice 1986--(1) The Fisheries (Quota Management Areas, Total Allowable Catches, and Catch Histories) Notice 1986 is hereby amended by omitting each expression specified in the first column of the following table wherever it occurs, and substituting in each case, in its 25 appropriate alphabetical order, the expression set out opposite that expression in the second column of that table:
Expressions to be Omitted Expressions to be Substituted
Barracouta (Thyrisitesj Barracouta (Thyrsites atun) 30 Elephant Fish (Callorhynchus milii) Elephant Fish (Callorhinchus milit) Flatfish (Rhombosolea plebeia; Pelotretis Flat Fishes (Rhombosolea plebeia; -8avilatus; Peltorhmphus nouaezee- Pelotretis flnuilatus; Peltorhmpjuts landiae; Rhombosolea leporina; Colis- nouaezeetandiae, Rhombosolea tium guntheri,· Colistium nudipinnis; leporina,· Cohitium guntheri; 35 Rhombosolea retiara; Rhombosolea Colistium nudipinnis; Rhombosolea tapirina) retiaria,· Rhombosolea tapirina) Gurnard (Chelidonichthys kumu) Red Gurnard (Chelidonichthys kumu) Hapuku and Bass combined Hapuku Polyprion oxygeneios; Bass (Polyprion oxygeneios; Polyprion Polyprion americanus (- Polyprion 40 moene) moenej Oreo Dories (Allocyttus sp, Pseudocyt- Oreos (Allocyttus spp.; Pseudocyttus tus maculatus; Neocyttus maculatus; Neocyttus rhomboidalis) rhomboidalus) Red Cod (>seudophycis bacchus) Red Cod (>seudophycis bachw) School Shark (Gateorhinw australisj School Shark (Galeorhinw gateus) 204 Fisheries
Expressions to be Omitted Expressions to be Substituted
Snapper (Chrysophrys auratus) Snapper Pagrus auratus (- Chrysophrys auratus) Stargazer (Kathetostoma giganteum) Stargazer (Kathetostoma spp.) 5 Tarakihi (Nemadactylus macropterus) Tarakiki (Nemadactylus macropterus; Nemadactylits sp.) Trevalli (Caranx georgianus) Trevalli Pseudocaranx dentex (= Caranx georgianw)
(2) For the avoidance of doubt, it is hereby declared that 10 nothing in this section shall be regarded as making any species subject to the quota management system under this Act or the Fisheries Act 1983. (3) The Fisheries (Quota Management Areas, Total Allowable Catches, and Catch Histories) Notice 1986 may hereafter be 15 amended as if the amendments effected by this section had been effected by notice and not by this section.
325. Transitional provisions relating to monthly quota balances-It is hereby declared that- (a) The objection procedure set out in section 28zcA of the 20 Fisheries Act 1983 applies, and has always applied, only to assessments of monthly and opening quota balances made by the chief executive in respect of any period ending before the 1st day of April 1993: (b) The review procedure set out in the Fisheries (Catch 25 Against Quota) Regulations 1993 applies, and has always applied, only to assessments ot monthly and opening quota balances made by the chief executive in respect of any period commencing on or after that day: 30 (c) Quota balances notified to the chief executive after the 31 st day of March 1993 shall, in the absence of proof to the contrary, be conclusively presumed to be accurate for the purposes of this Act.
326. Transitional provisions relating to certain 35 agreements having term exceeding 12 months-Every lease of quota, every assignment of quota, and every agreernent referred to in section 28zA (2)(c) of the Fisheries Act 1983, that- (a) Is entered into on or after the commencement of this 40 section; and Fisheries 205
(b) Purports to have effect for a period exceeding 12 months- shall be invalid and incapable of lawful registration under this Act or the Fisheries Act 1983 to the extent that that Act 5 continues to have effect by virtue of any provision of this Act.
327. Transitional provisions relating to underfishing and overfishing-(1) On the commencement of this section, any right that a fisher has to carry forward the right to take any amount of fish under section 28v of the Fisheries Act 1983 shall 10 be deemed to be an annual catch entitlement of such amount of fish as the chief executive shall specify. (2) The chief executive shall, as far as is practicable, calculate the annual catch entitlement of a fisher to whom subsection (1) of this section applies as if the amount of fish could, but for this 15 Act, be carried forward under the said section 28v were an annual catch entitlement that could be carried forward under section 58 of this Act. (3) Every right under the said section 28v to take an amount of fish in excess of a quota is hereby cancelled.
20 328. Confirmation of quota shown in registers-As from a date appointed for the purpose by the Governor- General by Order in Council, every amount of individual transferable quota shown in any register maintained under section 28p ot the Fisheries Act 1983 as being held by any 25 person as at that date shall for all purposes be deemed to be correct as between the Crown and that person.
329. Existing leases-(1) On the commencement of this section, every lease of quota under the Fisheries Act 1983 shall be deemed to be a caveat on the quota to which the lease 30 relates, and the lease shall thereafter have effect as an agreement between the lessor and the lessee whereby the lessor agrees to sell to the lessee all annual catch entitlements generated by or issued in respect of the quota subject to the lease in each year for so long as the lease remains in force, and 35 otherwise on the terms and conditions contained in the lease as far as they are applicable. (2) Every caveat under this section has the same effect as a caveat under section 128 (1) (a) of this Act.
330. Existing agreements to catch against another 40 person's quota-(1) This section- (a) Shall be in force for 12 months and shall then expire; and 206 Fisheries
(b) Applies to every agreement referred to in section 28zA (2) (c) of the Fisheries Act 1983 that is in force on the commencement of this section and has effect in respect of any quota for a period exceeding 12 months. 5 (2) As soon as practicable after the commencement of this section, the parties (being the quota holder and the person authorised by the agreement to take fish to which the quota relates) to every agreement to which this section applies may vary the agreement. 10 (3) Where there are 2 or more agreements in respect of the sarne quota, then, as soon as practicable after the commencement of this section, the parties to each agreement shall vary the agreement so that- (a) The agreement relates to a specified tonnage of fish; and 15 (b) The sum of the tonnage of that agreement together with all other agreements relating to the same quota does not exceed the total tonnage of annual catch entitlements which the quota held by the quota holder will generate in the fishing year to which the 20 agreements relate. (4) If the parties elect not to vary an agreement or agreements in the manner referred to in subsection (3) of this section, then, subject to the agreements concerned, only those agreements (having priority in the order in which they were 25 executed) in respect of which the quota held by the quota holder generates sufficient annual catch entitlements shall nave effect as an agreement by the quota holder to sell such annual catch entitlement to the other party. A caveat may be lodged against such an agreement under section 128 (1) (a) of this Act. 30 (5) Where, pursuant to subsection (4) of this section, an agreement is not able to be given effect to, it shall be deemed to be and always to have been ineffectual.
331. Allocation of jack mackerel quota-(1) Individual transferable quota shall be allocated in respect ofjack mackerel 35 to the persons named in the Fourth Schedule to this Act and in the amounts specified in that Schedule. (2) The allocations specified in Part I of the Fourth Schedule to this Act shall have effect in respect of an area comprising stock management areas 1 and 2 as defined in the First Schedule to 40 this Act. (3) The allocations specified in Part 11 of the Fourth Schedule to this Act shall have effect in respect of an area comprising stock Fisheries 207
management areas 3,4,5, and 6 as defined in the First Schedule to this Act. (4) The Minister shall issue a notice under section 17 of this Act in respect ofjack mackerel to which this section applies and 5 that section shall apply as if such jack mackerel were being declared to be subject to a quota management system pursuant to that section and not by this section. (5) On and from the date on which the allocations become effective (which date shall be specified in the notice under 10 subsection (4) of this section), Part 111 of this Act- (a) Shall apply in respect of such jack mackerel as if the stock had been declared to be subject to a quota management system pursuant to section 17 of this Act; and 15 (b) Shall apply in respect of the quota allocated by this section as if such allocations had been made pursuant to that Part.
332. Chief executive may translate other rights-In the case of any rights conferred by the Fisheries Act 1983 that are 20 in force on the commencement of Part 111 of this Act but in respect of which no savings or transitional provisions are made by this Act, the chief executive may determine that the rights shall have such status under this Act as meets the intention of the parties concerned as he or she may specify.
25 333. Protection of the Crown etc.-Without limiting any other provision in this Act, nothing effected or authorised by this Act shall be regarded as- (a) Making the Crown, or any person acting pursuant to this Act, liable to pay compensation to any person; or 30 (b) Otherwise making the Crown or any other person guilty of a civil wrong.
334. General saving-Without limiting the provisions of the Acts Interpretation Act 1924, the provisions of this Part of this Act shall have effect notwithstanding the repeals effected 35 by section 309 of this Act.
PART XVI
REPEAL OF MINISTRY OF AGRICULTURE AND FISHERIES ACT 1953 335. Abolition of Ministry of Agriculture and 40 Fisheries-The Ministry of Agriculture and Fisheries 208 Fisheries constituted under the Ministry of Agriculture and Fisheries Act 1953 is hereby abolished.
336. Repeals-(1) The following enactments are hereby consequentially repealed: (a) The Ministry of Agriculture and Fisheries Act 1953: 5 (b) The Ministry of Agriculture and Fisheries Amendment Act 1972: (c) So much of the Third Schedule to the Official Information Amendment Act 1987 as relates to the Ministry of Agriculture and Fisheries Act 1953: 10 (d) The Ministry of Agriculture and Fisheries Amendment Act 1989: (e) Section 12(5) of the Meat Export Control Amendment Act 1989: (f) So much of the Schedule to the Regulations (Disallowance) 15 Act 1989 as relates to the Ministry of Agriculture and Fisheries Act 1953: (g) So much of the Schedule to the Conservation Law Reform Act 1990 as relates to the Ministry of Agriculture and Fisheries Amendment Act 1972: 20 (h) The Ministry of Agriculture and Fisheries Amendment Act 1990: (i) So much of the Third Schedule to the Biosecurity Act 1993 as relates to the Ministry of Agriculture and Fisheries Act 1953. 25 (2) Without limiting anything in the Acts Interpretation Act 1924, the repeal of any enactment specified in subsection (1) of this section does not prejudice- (a) Any amendment made by that enactment to any enactment not specified in that subsection; or 30 (b) Any other provision in any enactment specified in that subsection (other than a provision amending the Ministry of Agriculture and Fisheries Act 1953 or any amendment to that Act).
337. Savings-(1) Every reference in any enactment or 35 document in force immediately before the commencement of this Act to the Ministry of Agriculture and Fisheries shall, after the commencement of this Act, unless the context otherwise requires,- (a) If the reference occurs in relation to fisheries, be read as a 40 reference to the Ministry of Fisheries: (b) If the reference occurs in relation to Agriculture, be read as a reference to the Ministry of Agriculture: Fisheries 209
(c) In any other case, be read as a reference to the Minister of Agriculture or the Minister of Fisheries. (2) Every reference in any enactment or document in force immediately before the commencement of this Act to the 5 Director-General of Agriculture and Fisheries shall, after the commencement of this Act, unless the context otherwise requires,- (a) If the reference occurs in relation to fisheries, be read as a reference to the chief executive of the Ministry of 10 Fisheries: (b) If the reference occurs in relation to Agriculture, be read as a reference to the chief executive of the Mmistry of Agriculture: (c) In any other case, be read as a reference to the Minister of 15 Agriculture or the Minister of Fisheries. (3) After the commencement of this Act, all proceedings whatever that were pending by or against the Ministry of Agriculture and Fisheries immediately before the commencement of this Act may,- 20 (a) In the case of proceedings relating to fisheries, be carried on, completed, or enforced by or against the Ministry of Fisheries: (b) In the case of proceedings relating to agriculture, be carried on, completed, or enforced by or against the 25 Ministry of Agriculture: (c) In any other case, be carried on, completed, or enforced by or against the Minister of Agriculture or the Minister of Fisheries.
338. Delegation of all chief executive's powers under 30 any enactment-(1) Where the chief executive has delegated to an employee of the Ministry all the chief executive's powers under any enactment, the delegation has effect as a delegation of all the chief executive's powers under any enactment for the time being, whether conferred on the chief executive before or 35 after the delegation was made. (2) Every delegation that was in force under the Ministry of Agriculture and Fisheries Act 1953 immediately before the commencement of this Part of this Act shall continue to have effect according to its tenor as if it had been made on that 40 commencement under section 28 or section 41 of the State Sector Act 1988. Cf. 1953, No. 7, S. 9A; 1989, No. 17, s. 6 210 Fisheries
PART XVII
MISCELLANEOUS PROVISIONS RELATING TO AGRICULTURE 339. Interpretation-In this Part of this Act, unless the context otherwise reYuires,- "Chief executive ' means the chief executive for the time 5 being of the Ministry of Agriculture: "Intellectual property"- (a) Includes- (i) All property rights constituted by the Patents Act 1953, the Designs Act 1953, the Trade 10 Marks Act 1953, the Plant Varieties Act 1973, or the Plant Variety Rights Act 1987; and (ii) Any trade secret; but (b) Does not include any property rights constituted 15 by the Copyright Act 1962: "Minister" means the Minister of Agriculture: "Ministry" means the Ministry of Agriculture: "Working day" means a day that is not a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, 20 Anzac Day, the Sovereign's birthday, Labour Day, or a day during a period commencing on any Christmas Day and ending with the 15th day of the following January: Cf. 1953, No. 7, s. 2; 1972, No. 3, s. 3 (2); 1989, No. 17, 25 s. 2 ( 1)
340. Powers of Minister-(1) For the purpose of enabling the Ministry to carry out its functions, the Minister may- (a) Devise, promote, and carry out experiments, researches, investigations, and measures in relation to the health, 30 and the diagnosis, prevention, and treatment of diseases, of fish, poultry, bees, and plants, the management of soils, and the production and improvement of livestock, crops, and pastures, and in relation to any other matters affecting the operations 35 of any of the industries which it is the function of the Ministry to promote and encourage: (b) Promote and carry out by publicity or other means the diffusion or dissemination of information relating to or affecting any of those industries for the instruction, 40 guidance, and benefit of persons engaged in those industries; and foster country youth educational organisations: Fisheries 211
(c) Establish and maintain experimental, research, instructional, and demonstration farms, stations, and areas for the purpose of acquiring knowledge and imparting practical instruction and advice in modern 5 practices and management in respect of any of the industries which it is the function of the Ministry to promote and encourage: (d) Promote and carry out the testing of agricultural and horticultural seeds, bulbs, and tubers for purity and 10 germination, and the approval by certihcation or other means of seeds, bulbs, and tubers in respect of their trueness to type and freedom from seedborne diseases: (e) Promote and carry out the testing of machinery, 15 appliances, and equipment used in any of the inclustries which it is the function of the Ministry to promote and encourage: (f) Promote and carry out the testing of wool: (g) Enter into agreements with owners and occupiers of land 20 for the sowing and growing for the Ministry of agricultural and horticultural seeds from stock seed supplied by the Ministry for the purpose of multiplying and distributing selected and improved strains of the seed or for the carrying out on the land 25 of co-operative trials relating to crop, pasture, horticultural, and livestock production and improvement: (h) Devise, promote, and carry out investigations and exprnments into the harvesting, storage, and 30 transport of the products of the industries which it is the function of the Ministry to promote and encourage: (i) Initiate and carry out economic surveys into any aspect of agricultural, pastoral, or horticultural production: 35 (j) Acquire, dispose of, apply for registration in respect of, or otherwise deal in or with, intellectual property and copyright (whether Crown copyright or not), whether arsing from research and development within the Ministry or not: 40 (k) Do all other things reasonably necessary or desirable for the economical, effective, and efficient performance of the Ministry's functions. (2) It is hereby declared that every work which the Minister is authorised to carry out, establish, or undertake under this or 212 Fisheries any other Act is a public work within the meaning of the Public Works Act 1981. Cf. 1953, No. 7, s. 11; 1989, No. 17, s. 4 (2); 1990, No. 53, s. 2 (2)
341. Inventions, etc., by employees-(1) Notwithstanding 5 anything in any other enactment, any intellectual property, agricultural data, or research devised or developed by an officer or employee of the Ministry belongs to the Crown (which shall be deemed to be the assignee of the officer or employee in respect of the property) if- 10 (a) It was devised or developed in the course of the duties of the officer or employee, whether or not the intellectual property might reasonably be expected to result; or (b) It was devised or developed wholly or principally by or 15 through the use of resources provided by the Crown;- but any other intellectual property, agricultural data, or research devised or developed by an officer or employee of the Ministry shall, as between the officer and employee and the 20 Crown (as the officer or employee's ultimate employer), belong to the officer or employee. (2) There may be paid to an officer or employee of the Ministry who devises or develops any intellectual property, agricultural data, or research that belongs to the Crown any 25 amount by way of bonus or grant appropriate in the circumstances. (8) Any intellectual property, agricultural data, or research beloning to the Crown under this section may be made available for use (whether by way of assignment or licence or 30 otherwise) on any conditions (including the payment of royalties or other money) the Minister from time to time agrees. (4) Where intellectual property, agricultural data, or research belonging to the Crown under this section was devised or 35 developed wholly or partly through the use of resources other than public money or public stores (as defined in section 2(1) of the Public Finance Act 1977), the Minister may assign the property or any interest in it to the person or persons who provided the resources, upon any terms and conditions the 40 Minister thinks fit. Fisheries 213
(5) Subsection (4) of this section does not limit the generality of subsection (3) of this section.
Cf. 1953, No. 7, S. 11A; 1989, No. 17, s. 7
342. Advisory and technical committees-(1) The 5 Minister may from time to time appoint such advisory committees as the Minister considers appropriate to assist him or her in the performance of any of the runctions or exercise of any of the powers of the Minister. (2) The Minister shall pay persons appointed to an advisory 10 committee under this section, for services rendered by them, fees at such rates as the Minister thinks flt and may separately reimburse them for expenses reasonably incurred in rendering services for the Minister. (3) No person shall be deemed to be employed in the service 15 of Her Majesty by reason of appointment to an advisory committee under tflis section.
Cf. 1953, No. 7, s. 13
343. Failure to pay statutory fees, etc.-(1) In this section, the term "statutory debt" means any fee, charge, or levy 20 required by any enactment administered by the Ministry (other than the Plant Variety Rights Act 1987), or by any regulation, order, notice, direction, or other instrument, made or issued under arpr such enactment, (being an enactment that does not provide ror the payment of interest or a monetary penalty for 25 late payment of, or failure or refusal to pay, the fee, charge, or levy) to be paid to the Ministry, the chief executive, any employee of the Ministry, or any person holding any office under any such enactment. (2) Where, after the exiration of the time provided by the 30 enactment concerned (or Dy subsection (4) of this section), all or any part of a statutory debt remains unpaid, the debt shall be deemed to have been increased by an amount calculated in accordance with subsection (3) of this section. (3) The amount by which an unpaid statutory debt, or any 35 unpaid part of a statutory debt, is deemed to have been increased is the sum of- (a) Ten percent of the debt (or that part of the debt that remained unpaid after the expiration of the time provided for the debt's payment); and 40 (b) For every complete period of 6 months after that expiration during which the debt or any part of it (including any deemed increase calculated under this 214 Fisheries
subsection) has remained unpaid, 10 percent of debt or that part. (4) Where no time is otherwise provided by any enactment for the payment of statutory debts of any kind or description, the debt shall be paid within 20 working days of it being 5 demanded in writing from the person required to pay it by any employee of the Ministry. (5) If the chief executive is satisfied that the failure or refusal of any person to pay all or any part of a statutory debt was a result of a genuine dispute between the person and the 10 Ministry as to- (a) The person's liability to pay the debt; or (b) The amount of the debt; or (c) Both,- the chief executive may waive the payment of all or any-part 15 by which the debt has been increased under subsection (2) ot this section. (6) If in any action for the recovery of a statutory debt the Court is satistled as aforesaid, the Court may waive payment as aforesaid. 20 (7) Where- (a) The chief executive is paid a statutory debt that is collected on behalf of and required to be paid to some other person or body; and (b) It has been deemed under this section to have been 25 increased,-- then, subject to section 344 of this Act, to the extent that the amount of the increase has been received, it shall be paid to the person or body. (8) If satisfied that- 30 (a) A statutory debt had been correctly calculated; and (b) The time provided by an enactment concerned (or subsection (4) of this section) for the debt's payment had expired; and (c) The debt or any part of it has not been paid,- 35 the chief executive may give to the person liable to pay the debt written notice that unless within 10 workins days the person pays the debt or part, or satisfies the chief executive that it is not payable, the chief executive may withdraw, or refuse to provide the person with, service of the kind to which 40 the debt relates. (9) Where- (a) Ten or more working days have expired since the chief executive gave any person notice under subsection (8) of this section; and 45 Fisheries 215
(b) The person concerned has neither paid the statutory debt or part concerned nor satisfied the chief executive that it is not payable,- the chief executive may, after causing the person to be sent by 5 registered mail or given orally a notice that the chief executive has decided to do so, withdraw or refuse to provide the service concerned. (10) Where the chief executive has under subsection (9) of this section withdrawn or refused to supply a service, the chief 10 executive is not required to re-instate or supply it until,- (a) A Court holds that the debt or part concerned is paid; or (b) A Court holds that the debt or part is not payable; or (c) A Court holds that some lesser amount is payable, and the amount is so paid. 15 C£ 1953, No. 7, s. 13a; 1989, No. 17, s. 8
344. Ministry to deduct costs of collecting levies- (1) Where, pursuant to any enactment administered by the Ministry, the chief executive collects any levy (however described) and pays it to any person or persons, the chief 20 executive shall, notwithstanding anything to the contrary in the enactment, deduct from the amounts of levy collected the actual and reasonable costs to the Ministry of the collection of those amounts and the making of payments, and pay only the residue (or, where the amounts collected are payable to more 25 than one person, the appropriate proportion of the residue) to each person concerned. (2) When paying to any person any amount from which a deduction has been made under subsection (1) of this section, the chief executive shall give the person- 30 (a) Accounts, showing the deductions made, and how they have been calculated; and (b) An explanation for the making of each deduction. Cf. 1953, No. 7, s. 13B; 1989, No. 17, s. 8
345. Delegation of all chief executive's powers under 35 any enactment-(1) Where the chief executive has delegated to an employee of the Ministry all the chief executive's powers under any enactment, the delegation has effect as a delegation of all the chief executive's powers under any enactment for the time being, whether conferred on the chief executive before or 40 after the delegation was made. (2) Every delegation that was in force under section 9 or section 10 of the Ministry of Agriculture and Fisheries Act 1953 immediately before the commencement of this Part of this Act 216 Fisheries shall continue to have effect according to its tenor as if it had been made on that commencement under section 28 or section 41 of the State Sector Act 1988. Cf. 1953, No. 7, s. 9A; 1989, No. 17, s. 6 F8heries 217
SCHEDULES
Section 16 (2) FIRST SCHEDULE
STOCK MANAGEMENT AREAS DEFINED
Stock Management Area 1 -Auckland (East) All that area of New Zealand fisheries waters enclosed by a line commencing at Cape Runaway on the east coast of the North Island (at 37°32'S and 177'59.4'E); then proceeding due north to a point 33'25'S and 177'59.4'E on the outer limits of the exclusive economic zone; then proceeding in a generally north-westerly direction along the outer limits of the exclusive economic zone to a point 30'52.5'S and 173'02.5'E; then proceeding due south to North Cape on the north coast of the North Island (at 34'24' S and 173'02.5'E); then proceeding in a generally westerly, south-easterly direction along the mean high-water mark of the west coast of the North Island to Tirua Point (at a point 38'23' S and 174'38.5'E); then proceeding inland in a straight line to Cape Runaway on the east coast of the North Island (at a point 37'32' S and 177'59.4'E) until reaching the high·mean water mark on the east coast of the North Island, then continuing to Cape Runaway by proceeding in a generally easterly direction along the high-water mark to the point of commencement. Stock Management Area 2-Central (East) All that area of New Zealand fisheries waters enclosed by a line commencing at Cape Runaway on the east coast of the North Island (at 37°32'S and 177'59.4'E); then proceeding due north to a point 33'25'S and 177'59.4 'E on the outer limits of the exclusive economic zone; then proceeding in a generally south-easterly direction along the outer limits of the exclusive economic zone to a point 42'10' S and 172'00'W; then proceeding due west along latitude 42' 10' S to a point 42'10' S and 174°42'E; then proceeding in a generally north-westerly direction to Brothers Island light at 41'06' S and 174'26'IE; then proceeding in an easterly direction to a point 41'06'S and 174'50'E on the west coast of the North Island; then proceeding inland along a straight line to Cape Runaway on the east coast of the North Island (at 37'32' S and 177'59.4'E) being the point of commencement. Stock Management Area 3-South-East (Coast) All that area of New Zealand fisheries waters enclosed by a line commencing at Clarence Point on the east coast of the South Island (at 42°10'S and 173'56'E); then proceeding due east along latitude 42'10'S to a point 42'10' S and 176'00'E, then proceeding due south to a point 46'00' S and 176°00'E; then proceeding in a generally south-westerly direction to a point 48'19'S and 170'34'E; then proceedins in a north· westerly direction to Slope Point (at 46'40.5' S and 169 00'E); then proceeding inland along a straight line to Awarua Point on the west coast of the South Island (at 44'16' S and 168'03'E); then proceeding inland along a straight line to Clarence Point on the east coast of the South Island (at 42'10' S and 173'56'E) being the point of commencement. Stock Management Area 4-South-East (Chatham Rife) All that area of New Zealand fisheries waters enclosed by a line commencing at 42'10' S and 176'00'E; then proceeding due east along latitude 42'10'Stoa point 42'10'S and 172'00'W on the outer limits of the exclusive economic zone; then proceeding in a generally southerly direction along the outer limits of the exclusive economic zone to a point 218 Fisheries
FIRST SCHEDULE-continued
STOCK MANAGEMENT AREAS DEFINED-COntinued
Stock Management Area 4-South-East (Chatham Rise)-continued 46'00'S and 171°45'W; then proceeding due west to the point 46'00'S and 176'00'E; then proceeding due north to the point of commencement; and including all inland waters of the Chatham Islands. Stock Management Area 5-Southland All that area of New Zealand fisheries waters enclosed by a line commencing at Slope Point on the south coast of the South Island (at 46'40.5' S and 169 00'E); then proceeding in a generally south-easterly direction to a point 48'19' S and 170'34'E; then proceeding in the south- westerly direction to the point 49'00' S and 169'00'E; then proceeding due west to a point 49«00'S and 161'27'E on the outer limits of the exclusive economic zone; then proceeding in a generally northerly direction along the outer limits of the exclusive economic zone to the point 44'16' S and 162' 13'E; then proceeding due east to Awarua Point on the west coast of the South Island (at 44'16' S and 168'03'E); and then proceeding inland along a straight line to Slope Point on the south coast of the South Island (at 46'40.5'S and 169'00'E) being the point of commencement.
Stock Management Area 6-Sub-Antarctic All that area of New Zealand fisheries waters enclosed by a line commencing at a point 46'00'S and 171'45'W on the outer limits of the exclusive economic zone; then proceeding due west to the point 46°00' S and 176'00'E; then proceeding in a generally south-westerly direction to the point 49'00' S and 169'00'E; then proceeding due west to a point 49'00'S and 161'27'E on the outer limits of the exclusive economic zone; then proceeding in a enerally southerly and north-easterly direction along the outer limits ot the exclusive economic zone to the point of
commencement.
Stock Management Area 7-ChallengerCentral (Plateau) All that area of New Zealand fisheries waters enclosed by a line commencing at Awarua Point on the west coast of the South Island (at 44'16' S and 168'03'E); then proceeding due west along latitude 44'16'S to a point 44'16' S and 162 13'E on the outer limits of the exclusive economic zone; then proceeding in a generally north-easterly direction along the outer limits of the exclusive economic zone to a point 37' 35'S and 170'03'E; then proceeding in a generally south-easterly direction to a point 40'32' S and 174'20'E; then proceeding in a generally south-easterly direction to Brothers Island light at (41'06' S and 174'26'E); then proceeding in a generally southerly direction to a point 42'10' S and 174'42'E; then proceeding due west along latitude 42»10' S to Clarence Point on the east coast of the South Island (at 42° 10' S and 173'56'E); then proceeding inland along a straight line to Awarua Point on the west coast of the South Island (at 44'16' S and 168'03'IE) being the point of commencement.
Stock Management Area 8-Central (Egmont) All that area of New Zealand fisheries waters enclosed by a line commencing at Tirua Point on the west coast of the North Island (at 38'23'Sand 174'38.5'E);then proceeding in a north-westerly direction to a point 37'35'S and 170'03'E on the outer limits of the exclusive Fisheries 219
FIRST SCHEDULE-continued
STOCK MANAGEMENT AREAS DEFINED-continued
Stock Management Area 8-Central (Egmont)-continued economic zone; then proceeding in a generally south-easterly direction to a point 4032' S and 174'20'E; then proceeding in a generally south-easterly direction to Brothers Island light (at 41'06'S and 174'26'E); then proceeding in an easterly direction to a point 41°06' S and 174'50' E on the west coast of the North Island; then proceeding inland along a straight line to Cape Runaway on the east coast of the North Island (at 37'STS and 177'59.4 E) and proceeding inland alon a straight line to Tirua Point on the west coast of the North Island (at 38 23'S and 174'38.5 'E) being the point of commencement. Stock Management Area 9-Auckland (West) All that area of New Zealand fisheries waters enclosed by a line commencing at Tirua Point on the west coast of the North Island (at 38°23' S and 174'38.5' E ); then proceeding in a north-westerly direction to a point 37'35'S and 170'03'Eon the outer limits of the exclusive economic zone; then proceeding in a northerly direction along the outer limits of the exclusive economic zone to a point 30'52.5' S and 173'02.5'E; then proceeding due south to North Cape on the north coast of the North Island (at 34'24' S and 173'02.5'E); then proceedin in a southerly direction along the mean high water mark to the point oi commencement. Stock Management Area 10-Kermadec All that area of New Zealand fisheries waters around the Kermadec Islands enclosed by a line commencing at a point 34'34.3' S and 179«51.0'W on the outer limits of the exclusive economic zone; and then proceeding generally in an easterly, northerly, westerly and southerly direction along the outer limits of the exclusive economic zone to a point 34°22.1'S and 179'29.6 'Eon the outer limits of the exclusive economic zone; and then proceeding in a straight line to the point of commencement. 220 Fisheries
Sections 63,64,65 SECOND SCHEDULE
ANNUAL CATCH ENTITLEMENT BEFORE FISHING REGIME
Paua All stock management areas Spiny Rock Lobster All stock management areas Packhorse Rock Lobster All stock management areas Southern scallop Stock management area 7
Section 259 THIRD SCHEDULE
PART A
FISHERIES RELATED COSTS TO BE BoRNE BY CROWN
Itern Crown Contribution
Stock assessment costs associated with- (a) Inshore fisheries research . . 10 percent (b) Shellfish research...... 10 percent (c) Pelagic fisheries research . . 5 percent Management measures dealing with interfaces and resolving conflicts between commercial interests and between commercial and non-commercial interests ...... 25 percent Detection of fisheries oiTences 13 percent Prosecutions . . 100 percent Management of all Crown held fisheries quota . . 100 percent Management of licensing of foreign licensed nations under Part IV of this Act .. .. 100 percent Costs of all other required services as defined in section 260 (7) of this Act (other than research relat· ing to deep water and middle depth stock assess· ment research, and stock assessment methodologies)...... 32.07 percent Costs of conservation services referred to in section 258(1) Cd) of this Act .. .. 00.00 percent
For the purposes of this Part of this Schedule,- 'Inshore hsheries' means fish of the species specified as inshore species in Part B of this Schedule: 'Pelagic fisheries' means fish of the species specified as pelagic species in Part B of this Schedule: 'Prosecutions' means proceedings that have been commenced by the laying of an information or the presentation of an indictment: 'Shellfish' does not include squid (Nototodars gouldi and Nototodarus sloanii). Fisheries 221
PART B
TABLES OF INSHORE AND PEI«AGIC SPECIES SPECIFIED FOR PURPOSES OF PART A OF THIS SCHEDULE
COMMON NAME SPECIES CODE SCIENTIFIC NAME
Inshore Species Alfonsino BYX Beryx *lendens, B. decadactylus Blue cod BCO Parapercis colias Blue moki MOK Latridopss ciliarts Bluenose BNS Hyperoglyphe antarctica Butterfish, greenbone BUT Odax pullus Common (blue) warehou WAR Seriolella brama Coner eel CON Conger spp. Elephant fish ELE Callorhnchus milit Flatfish: Black flounder BLF Rhombosolea retiaria Brill BRI Colistium guntheri Greenback flounder GFL Rhombosolea tapirina Lemon sole LSO Pelotretis flavilatw New Zealand sole ESO Peltorhamphus nouaereelandiae Sand Hounder SFL Rhombosolea plebeia Turbot TUR Colistium nudpinnif Yellowbelly flounder YBF Rhombosolea leporina Giant stargazer STA Kathetostoma giganteum Grey mullet GMU Mugil cephalus Groper: Bass BAS Polyprion moeone Hapuku HAP Polyprion oxygeneios John dory JDO Zells fabey Leatherjacket LEA PaTika scaber Long-hnned fresh-water eel LFE Anguilla die#enbachii Octopus OCT Octopw maorum Parore PAR Girella tricuspidata Porae POR Nemadactylus douglast Qpinnat salmon SAM Oncorhynchus tshawytscha Red cod RCO Pseudophycis bachus Red gurnard GUR Chelidonichthys kumu Red moki RMO Cheilodactylus spectabilis Rig, spotted dogsh SPO Mlatelus lenticulatus Rough skate RSK Raja nasuta School shark SCH Galeorhinus gateus Sea perch, Jock Stewart, Scapee SPE Helicolenus percoides Short.hnned freshwater eel SFE Anguilla australs Snapper SNA Pagruf auratus Inshore Species Spiny dogfish SPD Squalus acanthias Spotted gurnard JGU Pterygotrigla picta Spotted stargazer SPZ Genyagnw monopterygius 222 Fisheries
PART B-continued
TABLES OF INSHORE AND PELAGIC SPECIES SPECIFIED FOR PURPOSES OF PART A OF THIS SCHEDULE -continued
COMMON NAME SPECIES CODE SCIENTIFIC NAME
Tarakihi TAR Nemadactylus macroptents Trevally TRE Pseudocaranx dentex Yellow-eyed mullet YEM Aldrichetta forsterti
Petagic Species Albacore ALB Thunnus alalunga Anchovy ANC Engraulit austratis Bigeye tuna BIG Thunnus obes,Ls Blue (English) mackerel EMA Scomber australasicus Broadbill swordfish SWO Xiphias gladius Butterfly tuna BTU Gasterochisma melampus Garhsh GAR Hyporhamphw ihi Jack rnackerel JMA Trachunis declivis, T. nouaereelandiae, T. murphyi Kahawai KAH Arripis tnitta, A. xylabion Kingfish (yellowtail) KIN Seriola ialandi Northern bluefin tuna NTU Thunnus thynnw Pilchard PIL Sardinops neopilchardus Ray's bream RBM Brama brama Skipjack tuna SKI Katsuwonus pelamis Southern bluefln tuna STN Thunnus maccoyi Sprats SPR *rattus antipodum, S. muelleri
Yellowfin tuna YFN Thunnw albacares Striped marlin STM Tetraptunls audax Black marlin BKM Makaira intiica Blue marlin BEM Makaira nigricans, Makaira mazara Blue shark BWS PTionace glauca Mako shark MAK hums oxyrinchus" Fisheries 223
FOURTH SCHEDULE
JACK MACKEREL QUOTA ALLOCATIONS
PART I
Stock Management Areas 1 and 2
Client No. Legal Name Allocation
8460042 Amaltal Fishing Co Limited 2,200 8420078 Ashby, Ray John 1,000 8840010 Aston Trawling Co Partnership 7,000 8960108 Aston, A .P & M 300 8430102 Avery, Richard John 500 8430131 Barker, David Edward 900 8420156 Bay Fisheries Limited 1,200 8430207 Bithell, Keith Owen 150 8420208 Blackwell, Graham Edwin 400 8820077 Boskovic, M & M &Cobb,R.B 1,000 8452904 Bradnock, John Wilfred 1,000 8820017 Bridgeman, Frederick Harold and Juanita 1,000 8630038 Brockelsby, Roger Arnold 250 8720002 Browne, Dale Ken 750 8810047 Carlisle, Edward Karora & Carisle, Pamela 700 9140014 Cook Strait Seafoods being Fastforward 500 Limited 8410526 Cross, Peter Charles 400 8430540 D'Ath, Errol Maurice 1,600 8830076 Dalgety, Neil John 300 8430550 Davidson, N.P. 150 8630094 Deadman, B.S & Lees, R.W 600,000 8410585 Denison, Robert Leslie 150 9060030 Donker Marine (1988) Limited 400 8430634 Driver, Samuel 150 8410653 Dyer, Raymond Mark 100 9110008 Edwards, Bailey 400 8930005 Edwards, Phillip George 600 9220022 Eileen Walker Limited 100 8650036 Esplanade No. 1 Limited 13,000 8413043 Fisher, James S. 9,000 8420775 Ford, Gary 150 8440794 Fraser, Anthony Gordon 150 8410801 Frear, T.V. 450 8423481 Gibbs, Craig William 1,000 8440865 Gisborne Fisheries 1955 Limited 5,500 8920018 Goodall, Danny George 300 8430974 Hanmore, Nigel Don 400 8421016 Hartstone (Raglan) Limited 2,000 9140048 Harvey, Stephen Graham 500 9110046 Hassan, Kevin John 100 8433384 Heath, GJ. 150 8411099 Hikurangi Fisheries Limited 300 9030056 Honda, Fumio 150 8810054 Howell, Wayne Terrence 1,100 8720113 Humphries, Mark Clifton 150 224 Fisheries
FOURTH SCHEDULE-continued
JAcK MACKEREL QuoTA ALLOCATIONs-continued
PART I-continued
Stock Management Areas land 2-continued
Client No. Legal Name Allocation
8421164 Humphries, Robert Clifton 1,600 8411167 Hunt, Thomas Stephen 700 8720001 Hunter, RJ &L 800 8453310 Imlach, J.N & G.A 4,100 8820105 jackison, Paul George 200 8443473 Jenssen, Jens Rydher 2,500 8710089 Jones, R.S, 150 8610108 Jones, R.S & J.W 150 8421288 Kellian, David Arthur 100 9120016 Kellian, D.A & G.R 2,000 8431312 King, Arthur Edward 150 8620133 King, Edward John 200 8421439 Lomas, Warren Ernest 2,000 8610026 Lowe, C.G & T.A 150 8431488 Maclardy, William John 600 8940041 Mason, William Arthur 100 8720132 Melling, Peter Clement 250 8720075 Menary, Brian Murray Glen 150 8421653 Merrie, Glenn 100 8431664 Mikaere, Ken 250 8920069 Moana Fishing Limited 10,000 8441730 Munro, Michael William 150 8411754 Neeley, W.R. 150 8461758 Nelson Fisheries Limited 600,000 8640038 O A McRae Fishing Limited 7,500 8451809 O'Callaghan, Raymond Eroll 200 8411819 O'Gorman, D.B. 150 8461827 Okey, Graham Leslie 11,500 8433012 Olsen, Terrence Lyall 100 9240029 Pacific Trawling Limited 21,500 8431862 Papakura Trawling & Fishing Co Limited 800 8431877 Parrott, William Harry Boyd 100 8630079 Plews, David Frederick 150 8431966 Price, Thomas William 1,300 8431976 Pulford, Douglas Basil 400 8431977 Pulford, Maurice Ronald 200 8411985 R L Dyer & Sons Limited 150 8630114 Rawlinson, William Patrick 200 8920023 Roberts, Daniel 150 8452120 San Antonio Fishing Co. 8,000 8422125 Sanford Limited 6,431,500 8452132 Saunders, Alfred John 300 8840059 Scampi Corp Limited 1,500 8422158 Scott, Rodney john 150 8650062 Seafresh Fisheries (NZ) Limited 2,000 Fisheries 225
FOURTH SCHEDULE-continued
ACK MACKEREL QUOTA ALLOCATIONS-Continued
PART I-continued
Stock Management Areas 1 and 2-continued
Client No. Legal Name Allocation
8462165 Sealord Products Limited 185,500 8412191 Shoreline Fisheries Limited 150 8422209 Simunovich Fisheries Limietd 20,000 8920096 Solo Fisheries Limited 150 8640020 South Pacific Fisheries Limited 500 8640051 Star Fish Supply Limited 400 8470000 Staunton Investments Limited 100 8630041 Stevenson, James Scott 2,000 8432305 Stock, Rodney Grant 2,200 8620021 Sveistrup, Hugh Kay 500 8432334 Sveistrup, Maunce Wayne 1,000 8940117 Te Runanga O Wharekauri Rekohu 300 8640007 Terry, Peter 100 8820062 Tomski, Michael john 100 8600300 Treaty of Waitangi Fisheries Commission 2,000,000 9240005 Trio Trawling Partnership 500 8412468 Turnbull, Raymond Walter 600 8422488 Van der Voorn, Anthony Adrianus 100 8432495 Veal, Paul Martin 400 8820088 Viskovich, Alan Ivan 150 9220007 Walker, Christopher Desmond 300 8432547 Walton, John Lewis & Low, David 2,800 8660017 Wells, Dennis Andrew 1,500 8412640 Wilkinson, Desmond Ross 100 8940141 William Rose Trawling Co Limited 400 8710141 Yardley, ICL & I.M 650 TOTAL 10,000,000 226 Fisheries
FOURTH SCHEDULE-continued
JACK MACKEREL QUOTA ALLOCATIONS-continued
PART II Stock Management Areas 3,4,5, and 6
Client No. Legal Name Allocation
8820078 Amalgamated Marketing Limited 400,000 8460042 Amaltal Fishing Co Limited 940,500 8840010 Aston Trawling Co Partnership 500 8960136 Aurora Fisheries Limited 1,700 8480296 Brown, Edwin Lewin 350 9220013 Chatton Enterprises Limited 700 8470453 Cleall, Richard James 500 8680024 Deepcove Fisheries Limited 15,000 8650036 Esplanade No. 1 Limited 500 8460698 Explorer Douglas Fishing Co. 76,000 8473465 Fearnley, B.M & A 250 8470716 Fearnley, Roydon Garth 39,000 8470772 Forbes, A.E. 15,000 8470784 Foster, Victor Paul 54,000 8470888 Goodyer, Timothy Mark 1,000 8470902 Graham, Robert Brian 500 8480986 Hardwick, Peter Brian 150 8483479 Heineman, Ate & Colleen Lynne 100 8481311 Kiely, M. 400 8481449 Low, Bryon Robert 200 8471464 Lyttelton Trawling Co. Limited 7,000 8481576 McCutcheon,Graeme Victor 400 8870106 McDonald, A.C & KJ 150 8481684 Mitchell, B. & R.D 700 8491719 Mountfort rishing Company Limited 250 8471824 Ocean Fisheries Limitea 1,000 9080001 Odey Fishing Company Limited 1,500 9080002 Pacica Fishmg (Dunedin) Limited 300 8860084 Pacifica Fishing being Skeggs, C.G,B,BJ & 800 D.G. 8471897 Pegasus Bay Fishing Co Limited 10,000 8483445 Pioneer Fisheries Co Limited 176,000 8472072 Rodokal, Stavros George 250 8480726 Sanford South Island Limited 4,069,774 8650062 Seafresh Fisheries (NZ) Limited 8,000 8462165 Sealord Products Limited 4,525,626 8472269 South Island Deepwater Fisheries Limited 1,7000 9060092 South Paciftc Fishing Company Limited 800 9080009 Southern Ocean Trawlers Limited 105,000 8790011 Southland Fish Processors Co-Op 150,000 8470000 Staunton Investments Limited 1,672,700 8472325 Summerton,Gregory Mark 400 9170023 Takaroa Fisheries Limited 6,000 8600800 Treaty of Waitangi Fisheries Commission 3,600,000 8472481 United Fisheries Limted 1,400,000 8640050 Vela Fishing Limited 700,000 TOTAL 18,000,000 Fisheries 227
FIFTH SCHEDULE Section 309
ENACTMENTS REPEALED
1977, No. 28-The Territorial Sea and Exclusive Economic Zone Act 1977: Sections 10(2) (a), 11 to 26, 28(2), 28(3), 29, and 32A. 1980, No. 146-The Territorial Sea and Exclusive Economic Zone Amendment Act 1980. 1983, No. 14-The Fisheries Act 1983 (R.S. Vol. 27, p. 137). 1985, No. 192-The Territorial Sea and Exclusive Economic Zone Amendment Act 1985. 1986, No. 34-The Fisheries Amendment Act 1986 (R.S. Vol. 27, p. 308). 1987, No. 65-The Conservation Act 1987: So much of the Second Schedule as relates to the Fisheries Act 1983. 1987, No. 117-The State-Owned Enterprises Amendment Act 1987: So much of Part A of the First Schedule as relates to the Fisheries Act 1983. 1989, No. 44-The Public Finance Act 1989: So much of the First Schedule as relates to the Fisheries Act 1983 (R.S. Vol. 31, p. 725). 1989, No. 159-The Maori Fisheries Act 1989: Part II (R.S. Vol. 27, p. 311). 1990, No. 29-The Fisheries Amendment Act 1990 (R.S. Vol. 27, p. 318). 1990, No. 31-The Conservation Law Reform Act 1990: Part VII (R.S. Vol. 27, p. 326). 1990, No. 85-The Fisheries Amendment Act (No. 2) 1990 (R.S. Vol. 27, p. 329). 1991, No. 69-The Resource Management Act 1991: So much of the Eight Schedule as relates to the Fisheries Act 1983 (R.S. Vol. 32, p. 131). 1991, No. 149-The Fisheries Amendment Act 1991. 1992, No. 90-The Fisheries Amendment Act (No. 2) 1992. 1992, No. 121-The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992: Sections 21 to 38. 1992, No. 137-The Fisheries Amendment Act (No. 3) 1992. 1993, No. 67-The Fisheries Amendment Act 1993. 1994, No. 00-The Maritime Transport Act 1994: So much of the Fourth Schedule as relates to the Territorial Sea and Exclusive Economic Zone Act 1977.
SIXTH SCHEDULE Section 311
ENACTMENTS AMENDED
Enactment Amendment
1953, No. 31-The Wildlife To insert in the definition of the term Act 1953 (R.S. Vol. 7, "animal" in section 2 (1), after the words p. 819) "section 7B of this Act", the words "and any marine organism declared to be an animal under section 7BA of this Act". By inserting in section 2 (1), in their appropriate alphabetical order, the following definitions: 228 Fisheries
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-continued
Enactment Amendment
1953, No. 31-The Wildlife Aquatic life' means any species of Act 1953 (R.S. Vol. 7, plant or animal life which, at any p. 819)-continued time in the life history of the species, must inhabit water; and include seabirds (whether or not in an aquatic environment): 66 6 Fishing'- "(a) Means the catching, taking, or harvesting of fish, aquatic life, or seaweed; and "(b) Includes- (i) Any other activity that may reasonably be expected to result in the catching, taking, or harvesting of fish, aquatic life, or seaweed; and "(ii) Any operation in support of or in preparation for any activities described in this definition: Fishing·related mortality' means an accidental or incidental death of any marine wildlife in the course of fishing: Human-induced mortality' means the death of any marine wildlife that can be attributed directly or indirectly to any human activity: Marine organism' means any species inhabiting or found in or on the sea orforeshore: Marine wildlife' means any marine species, or individual of a species, defined as wildlife under this Act: New Zealand fisheries waters' has the same meaning as in section 2 (1) of the Fisheries Act 1994:
66 4 Population management plan' means a plan approved under section 14F or this Act: Threatened species' means any marine wildlife that meets the Fisheries 229
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-continued
Enactment Amendment
1953, No. 31-The Wildlife criteria for threatened that is for Act 1953 (R.S. Vol. 7, the time being determined by the p, 819)-continued World Conservation Union:". By inserting, after section 2A (as inserted by section 2 ( 1) of the Wildlife Amendment Act 1964), the following section: "28. Application of certain provisions restricted-Notwith- standing anything in section 3 of this Act, sections 9 to 14, 14A, 14B, 14c, 14E, and 37 of this Act shall not apply in respect of any wildlife outside the outer limits of the territorial sea of New Zealand." By adding to section 3 the words "and New Zealand fisheries waters". By inserting, after section 78 (as so inserted), the following section: "7BA. Marine organisms-(1) The marine species specified in the Schedule 7A to this Act are hereby declared to be animals. "(2) The Governor·General may from time to time, by Order in Council,- "(a) Include, in Schedule 7A to this Act, any marine organism not for the time being specified in that Schedule: "(b) Omit, from Schedule 7A to this Act, any marine organism not for the time being specified in that Schedule. "(3) Any such Order in Council may be expressed to operate throughout New Zealand or New Zealand fisheries waters or such parts thereof, and for such period or periods, as may be specified." By inserting, after section 14E (as substituted by section 68 of the Conservation Law Reform Act 1990), the following sections: "14F. Population management plans-(1) The Minister may from time 230 Fisheries
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-continued
Enactrnent Amendment
1953, No. 31-The Wildlife to time approve population Act 1953 (R.S. Vol. 7, management plans containing all or any p. 819)-continued of the following: "(a) An assessment of the biology and status of threatened species and other marine wildlife: "(b) An assessment of any known fisheries interaction with marine wildlife: "(c) The degree of risk caused by fishing-related mortality and other human induced sources of mortality to threatened species and other marine wildlife, whether within the territorial waters of New
Zealand or New Zealand Fisheries waters or elsewhere within the ranlie of the species: "(d) An estimate ot the range of human induced mortality for threatened and other species of marine mammals which would allow the criteria specified in section 14G of this Act to be met: "(e) An estimate of the range of fishing-related mortality for threatened species and other marine wildlife within which the criteria specified in section 14G of this Act to be met: "(f) The maximum allowable level of fishing-related mortality for threatened species and other marine wildlife at which the criteria specified in section 14G of this Act to be met: "(g) Recommendations to the Minister of Fisheries on measures to mitigate the fishing-related mortality of threatened species and other marine wildlife: "(h) Recommendations to the Minister of Fisheries on the level of Fisheries 231
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-continued
Enactment Amendment
1953, No. 31-The Wildlife information to be collected on Act 1953 (R.S. Vol. 7, fishing-related mortality. p. 819)-continued "(2) A population management plan prepared under this section may be with combined any population management plan prepared under section 3E of the Marine Mammals Protection Act 1978.
" 146. Criteria to be used in determining maximum allowable level of fishing-related mortality-In determining the maximum allowable level of fishing-related mortality for any marine wildlife, the Minister shall have regard to the following criteria: "(a) In the case of threatened species, the level of fishing-related mortality should not prevent the species achieving a non- threatened status as soon as reasonably practicable, and in any event within a period not exceeding 20 years: "(b) In the case of any other marine wildlife, the level of fishing- related mortality should neither cause a net reduction in the size of the population nor seriously threaten the reproductive capacity of the species. "14H. Procedure for preparation and approval of population Inanagernent plans-(1) Population management plans shall be prepared and approved as follows: "(a) The Director-General shall prepare every population management plan in consultation with every Conservation Board affected by the proposal, Te Ohu Kai Moana, the New Zealand Seafood Industry Board, the Fishing Industry Association of 232 Fisheries
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-continued
Enactrnent Amendment
1953, No. 31-The Wildlife New Zealand Inc., The New Act 1953 (R.S. Vol. 7, Zealand Federation of p. 819)-continued Commercial Fishermen Inc., the Fishing Industry Guild, such persons as the Director· General considers represent environmental, commercial, and recreational interests, and
such other persons or organisations, including iwi, as the Director-General considers have an interest in the plan: "(b) The Director-General shall then publish notice of the draft plan at least once in each of the daily newspapers published in Auckland, Wellington, Christchurch, and Dunedin, respectively: "(c) Every notice under paragraph (b) of this subsection shall- "(i) State that the draft plan is available for inspection at the places and times specified in the notice; and "(ii) Call upon persons or organisations interested to lodge with the Director- General submissions on the draft before the date specified for the purpose in the notice, being a date not less than 40 working days after the date of the publication of the notice; and "(iii) Require any person who wishes to be heard in support of the person's Fisheries 233
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-Continued
Enactment Amendment
1953, No. 31-The Wildlife submission to SO Act 1953 (R.S. Vol. 7, advise the Director- p. 819)-continued General: "(d) Any person or organisation may make written submissions to the Director-General on any draft plan, at the place and before the date specified for the purpose in the notice: "(e) From the time of publication of a draft plan until public opinion on it has been made known to the Director-General, he or she shall make the draft available for public inspection during normal office hours, in such places and quantities as are likely to encourage public participation in the development of the proposal: "(f) The Director-General shail give every person or organisation who or which, in making submissions on the draft, asked to be heard in support of his or her or its comments a reasonable opportunity of appearing before the Director- General: "(g) The Director-General may hear submissions from any. other person or oranisation consulted on the draft: "(h) The Director-General shall prepare a surnrnary of the submissions received on the draft and public opinion nnade known on the drait: "(i) After considering such submissions and public opinion, the Director-General may revise the draft: "(j) The Director-General shall send to the Minister of Fisheries and to the New Zealand Conservation 234 Fisheries
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-continued
Enactment Amendment
1953, No. 31-The Wildlife Authority a copy of the Act 1953 (R.S. Vol. 7, summary prepared under p. 819)-continued paragraph (i) of this subsection together with a copy of the draft plan: "(k) The New Zealand Conservation Authority shall consider the summary of submissions and the draft plan and send to the Minister and the Director· General any comments on the draft: "(1) The Director-General, after having regard to any comments received under paragraph (k) of this subsection,- "(i) May amend the draft: "(ii) Shall send to the Minister the summary prepared under paragraph (i) of this subsection together with a copy of the draft plan: "(m) After having regard to- "(i) The provisions of sections 14, and 14G of this Act; and "(ii) All submissions made on the draft plan; and "(iii) Such other matters as the Minister considers relevant,- the Minister may approve the plan subject to the concurrence of the Minister of Fisheries and refer it to that Minister for concurrence: "(n) The Minister of Fisheries may concur to the draft plan after having regard to the impacts of implementing the maximum allowable level of fishing· related mortality on the fishing industry and such other
matters as that Minister considers relevant: Fisheries 235
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-continued
Enactment Amendment
1953, No. 31-The Wildlife "(o) The Minister, with the Act 1953 (R.S. Vol. 7, concurrence of the Minister of p. 819)-continued Fisheries, may approve the plan: "(p) The approved plan shall be available for public inspection at the head ofhce of the Department of Conservation at such times as may be specified in the notice given in respect of the plan under subsection (2) of this section. "(2) The Director·General shall, by notice in the Gautte, specify- "(a) The species to which the approved plan relates; and "(b) The maximum allowable level of fishing-related mortality specified in the approved plan; and "(c) The times at which the approved plan is available for public inspection at the head office of the Departrnent of Conservation. "(3) Any approved plan may be amended and paragraph (a) and paragraphs (11 to {p) of subsection (1) and subsection (2) of this section shall apply to every such amendment with any necessary modifications." By adding to section 63, as subsection (2), the following subsection: "(2) Nothing in subsection (1) of this section applies in respect of any marine wildlife. " By inserting, after section 63, the following sections: "63A. Taking of absolutely or partially protected marine wildlife- Every person commits an offence against this Act who without lawful authority (the proof of which shall be on the person charged)- 236 Fisheries
SIXTH SCHEDULE-continued
ENACTMENTS AMENDED-Continued
Enactment Amendment
1953, No. 31-The Wildlife "(a) Hunts or kills any absolutely or Act 1953 (R.S. Vol. 7, partially protected marine p. 819)-continued wildlife; or "(b) Buys or processes for sale or sells or otherwise disposes of or has in his or her possession any absolutely or partially protected marine wildlife or any part thereof; or "(c) Robs, disturbs, or destroys, or has in his or her possession the nest of any absolutely or partially protected marine wildlife. "638. Reporting of accidental or incidental death or injury-(1) Where any person, in the course of flshing pursuant to a permit, licence, or permission granted or given under the Fisheries Act 1994, accidentally or incidentally kills or injures any marine wildlife, he or she shall- "(a) If fishing from a vessel, record the event in the vessel's log and report the accident in writing to a ranger not later than 48 hours after the arrival of the vessel in port; and "(b) In any other case, report the event in writing to a ranger as soon as practicable. "(2) Any person (not being a person to whom subsection (1) of this section applies) who, by any means whatever, accidentally or incidentally kills or injures any marine wildlife, he or she shall report the event to a ranger as soon as practicable. "(3) Every report under subsection (1) of this section shall include- "(a) The location of the area where the event took place; and "(b) The species (if known) of the
marine wildlife killed or Fisheries 237
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1953, No. 31-The Wildlife injured, or a general Act 1953 (R.S. Vol. 7, description of the wildlife; and p. 819)-continued "(c) A description of the conditions and the circumstances of the
event. "(4) Every person commits an offence against this Act who contravenes subsection (1 I or subsection (2) of this section." By inserting in section 67 (1), after paragraph (f),the following paragraph: "(fa) Commits an offence against section 63A (which relates to the taking of absolutely or partially protected marine wildlife) or section 638 (which relates to the reporting of accidental or incidental death of such wildlife) shall be liable to a flne not exceeding $10,000:". By inserting, after section 68, the following sections: "68A. Proceedings in respect of offences-Notwithstanding anything to the contrary in section 14 of the Summary Proceedings Act 1957, proceedings may be taken under this Act against any person for an offence committed at sea at any time within 12 months from the date on which that person hrst lands in New Zealand, or for an offence committed within New Zealand, within 12 months after the date of the commission of the offence.
"68B. Defences-(1) Where any person is charged with an offence against section 63A Ca) of this Act, it is a defence to the charge if the defendant proves that the act or omission constituting the offence took place in circumstances of stress or emergency and was necessary for the preservation, protection, or maintenance of human life. 238 Fisheries
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1953, No. 31-The Wildlife "(2) Where any person is charged with Act 1953 (R.S. Vol. 7, killing or injuring or being in possession p. 819)-continued of any marine wildlife contrary to the provisions of this Act, or any regulations made under it, and the provisions of subsection (1) of this section do not apply in the circumstances of the case,- "(a) It is a defence to the charge if the defendant proves that the death or injury to such wildlife was accidental or incidental, and that the requirements of section 638 were complied with: "(b) It is a defence to the charge if the defendant proves that the death or injury to, or possession of, such wildlife took place as part of a fishing operation and the requirements of section 638 were conplied with." By inserting, alter the Seventh Schedule, the following Schedule: "SCHEDULE 7A
MARINE SPECIES DECLARED TO BE ANIMALS "Black coral: all species in the Order Antpatharia." 1971, No. 15-The Marine By repealing the defmition of the term Reserves Act 1971 (R.S. "firearm" in section 2, and substituting Vol. 22, p. 751) the following definition: " 'Firearm' means anything from which any shot, bullet, missile, or other projectile can be discharged (whether or not by force of explosive); and includes any firearm as dehned in section 2 of the Arms Act 1983; and 'to shoot' has a corresponding meaning:". By repealing the definition of the term "hunt or kill" in section 2. By omitting from the definition of the term "marine life" in section 2 the words Fisheries 239
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Enactment Amendment
1971, No. 15-The Marine "; but does not include wildlife within Reserves Act 1971 (R.S. the meaning of the Wildlife Act 1953". Vol. 22, p. 751)-continued By inserting in section 2, after the defmition of the term "ranger", the following definition: " 'Sell' includes- "(a) Barter and any form of exchange for consideration: "(b) Offering or attempting to sell: "(c) Receiving for sale or having in possession for sale: "(d) Exposing for sale: "(e) Sending or delivering for sale: "(f) Causing or allowing to be sold, offered for sale, or exposed for sale;- and 'sale' and 'sold' have corresponding meanings:". By repealing paragraph (a) of section 5 (1), and substituting the following paragraph: "(a) Application for the Order in
Council is nnade to the Director·General by one or more of the following: "(i) Any university within the meaning of the Universities Act 1961: "(ii) Any body appointed to administer land subject to the Reserves Act 1977 where such land has frontage to the seacoast: "(iii) Any body corporate or other organisation engaged in or having as one of its objects the scientific study of marine life or natural history: "(iv) Maori iwi and hapu who have tangata whenua status over the area: "(v) The Director-General:". By repealing sections 18 and 19, and substituting the following sections: 240 Fisheries
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1971, No. 15-The Marine "18. General powers of rangers- Reserves Act 1971 (R.S. (1) Every ranger may, in the exercise of Vol. 22, p. 751)-continued his or her duty and upon production of his or her warrant of appointment (if so required),- "(a) Require any person whom he or she reasonably believes to have
committed or to be committing an offence against this Act or any regulations made under it to refrain or desist from that act: "(b) Require any person whom he or she reasonably believes to have
committed or to be committing an offence against this Act or any regulations made under it to give and produce evidence of his or her full name and address: "(c) Pursue and apprehend, without warrant, any person whom he or she reasonably believes to have committed or to be committing an offence against this Act or any regulations made under it: "(d) Stop any vessel, vehicle, or other conveyance, or any aircraft while on the ground or on the water, or any other device for carriage or transportation, or stop in transit any parcel, package, case, bag, luggage, or other container that is or that he or she reasonably believes to be in the possession of the owner or of any other person (including any carrier or forwarding agent, whether by land, sea, or air), if he or she reasonably believes that any breach of this Act or of any regulation made under it has been committed by the owner Fisheries 241
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1971, No. 15-The Marine or by the person in possession Reserves Act 1971 (R.S. thereof or by any other Vol. 22, p. 751)-continued person, and, in the presence of the owner or other person as aforesaid or of any servant of any of them, enter and search any such vessel, vehicle, other conveyance, aircraft, or other device, and in such presence as aforesaid open and search any such parcel, package, case, bag, luggage, or other container. "(2) The powers of a ranger under this Act shall be exercisable within any marine reserve; and where, pursuant to paragraph (c) of subsection (1) of this section, a ranger is in fresh pursuit of an offender, the ranger may, without warrant, apprehend the offender outside a marine
reserve. "18A. Powers of seizure-(1) A ranger may seize- "(a) Any vessel, vehicle or other conveyance, fishing gear, implement, appliance, material, container, goods, or equipment which he or she believes on reasonable grounds is being or has been used or is intended to be used in the commission of an offence against this Act or any regulations made under it: "(b) Any marine life which he or she believes on reasonable grounds are being or have been taken, killed, transported, bought, sold, or tound in the possession of any person, in contravention of this Act or any regulations made under it; or any other marine life with which such marine life have been intermixed: 242 Fisheries
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1971, No. 15-The Marine '(c) Any article, record, document, or Reserves Act 1971 (R.S. thing which he or she believes Vol. 22, p. 751)-continued on reasonable grounds is evidence of the commission of an offence against this Act or any regulations made under this Act: "(d) Seize all nets, traps, firearms, ammunition, explosives, engines, instruments, appliances, equipment, or devices that are being used or are intended to be used or have been used in breach of this Act or any regulations made under it, or that he or she reasonably believes are being so used or intended to be so used or have been so used: "(e) Seize any bag, container, or other article that is being used for the purpose of carrying any marine life or any part of any marine life, or any soil, stones, gravel, or other material illegally taken or had in possession or that he or she reasonably believes is being so used. "(2) Any property seized pursuant to subsection (1) of this section shall be delivered into the custody of the Director-General. "(3) Any article other than marine life found illegally in the possession of any person in a reserve may be seized by any ranger and shall be retained by the Director-General pending the trial of the person for the offence in respect of which it was seized. "(4) Any marine life found illegally in the possession of any person or in the vicinity of a reserve may be seized by an ranger and shall, if alive and likely to Fisheries 243
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Enactment Amendment
1971, No. 15-The Marine survive, be returned to the reserve, or, if Reserves Act 1971 (R.S. survival is unlikely, shall be disposed of Vol. 22, p. 751)-continued as may be directed by the Director· General in any specific instance or according to any regulations made under this Act, if provided for by such regulations. "(5) The decision whether or not to lay any information or charge in respect of an alleged offence for which any property is seized under this Act shall be made as soon as reasonably practicable after the property is seized, taken possession of, or detained. "188. Director-General may release seized property under bond-(1) The Director·General may, at any time until an information or charge is laid in respect of the alleged offence for which the property was seized, on application byr (a) The person from whom the property was seized; or "(b) The owner or person entitled to the possession of the property seized,- release the property to any such person under bond in such sum and under such sureties and conditions (if any) as the Director-General may specify. "(2) Where any person to whom property is released under subsection (1) of this section fails to comply with the conditions of any bond or with any condition specified by the Director· General,- "(a) The property may be reseized at any time at the direction of the Director-General; and "(b) The provisions of this section shall thereupon apply to the property as if it had been seized pursuant to section 18A of this section; and 244 Fisheries
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1971, No. 15-The Marine (c) The Director-General may, in the Reserves Act 1971 (R.S. case of failure to comply with Vol. 22, p. 751)-continued the conditions of any bond, apply to a Court presided over by a District Court Judge for an order for estreat of the bond; and "(d) Where the Director-General so applies the Registrar shall fix a time and place for the hearing of the application, and shall, not less than 7 days before the time fixed, cause to be served on every person bound by the bond a notice of the time and place so fixed; and "(e) If on the hearing of any such application it is proved to the satisfaction of the Court that any condition of the bond has not been kept, the Court may make an order to estreat the bond to such an amount as it thinks fit to any person bound thereby on whom notice is proved to have been served in accordance with this subsection; and "(f) Any penalty payable in accordance with this subsection shall be recoverable as if it were a fine. "1 Sc. Seized property to be held by Crown if not released-(1) Subject to section 180 of this Act, all property seized pursuant to section 18A of this Act and the proceeds from the sale of any such property pursuant to subsection (4) of that section, except where such property or proceeds have been forfeited to the Crown pursuant to section 18E of this Act, shall be held in the custody of the Crown until- "(a) A decision is made not to lay any information or charge in Fisheries 245
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Enactnnent Amendment
1971, No. 15-The Marine respect of the alleged offence Reserves Act 1971 (R.S. for which the property was Vol. 22, p. 751)-continued seized; or "(b) Where such a charge or information is laid, upon the completion of proceedings in respect of the alleged offence for which the property was seized, or such sooner time as the Court may determine. "180. Crown to release seized property in certain circumstances- (1) Where any information or charge has been laid in respect of the alleged offence for which the property was seized pursuant to subsection (1) of this section, and that property remains in the custody of the Crown, the Court may at any time, on application by- "(a) The person from whom the property was seized; or "(b) The owner or person entitled to the possession of the property seized,- release the property to any such person, and any such release may be subject to such sureties and conditions as the Court may specify. "(2) Subject to subsection (0) of this section, but notwithstanding any other provisions of this section, where any property has been seized under subsection (1) of this section, then- "(a) On a decision being made not to lay an information or charge;
or "(b) On the acquittal of any person charged with an offence for which the property is subject to forfeiture- such property, or the proceeds from the sale of such property, shall forthwith be released from the custody of the Crown. "18E. Seized property forfeited to Crown if ownership not 246 Fisheries
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Enactnnent Amendment
1971, No. 15-The Marine established-Where the ownership of Reserves Act 1971 (R.S. any property cannot at the time of Vol. 22, p. 751)-continued seizure be ascertained, the property seized shall be forfeit to the Crown and shall be disposed of as directed by the chief executive after 90 days from the date of seizure if, within that time, it has not been possible to establish the ownership ot the property. "18F. Protection of Crown-(1) The Crown shall not be liable to any person for any spoilage or deterioration in the quality ot any marine life seized under section 18A of this Act.
"(2) Notwithstanding any other provisions in this Part of this Act, a ranger who at the time of seizure returns to the water any marine life seized under section 18A of this Act that he or she believes to be alive, shall not be under any civil or criminal liability to the person from whom the fish or aquatic life was seized in the event of a decision being made not to lay an information or charge in respect of the marine life, or of the person being acquitted of the charge. "186. Forfeiture of property on conviction-( 1) In this section, unless the context otherwise requires,- "(a) 'Forfeiture offence' means an offence against section 18, (1) (m) of this Act: "(b) 'Property' means any vessel, vehicle or other conveyance, hshing gear, implement, appliance, material, container, goods, or equipment: "(2) On conviction of any person for a forfeiture offence or on the discharge of any person pursuant to section 19 of the Criminal Justice Act 1985 in respect of any such offence,- "(a) Any property used in respect of the commission of the offence Fisheries 247
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Enactment Amendment
1971, No. 15-The Marine (whether or not seized Reserves Act 1971 (R.S. pursuant to section 18A of this Vol. 22, p. 751)-continued Act); and "(b) Any marine life in respect of
which the offence was committed (whether or not seized pursuant to section 18A of this Act); and "(c) Any proceeds from the sale of such marine life pursuant to section 18A (4) of this Act)- may, on the order of the Court, be forfeited to the Crown thinks fit to so order. "(3) For the purposes of section 19 of the Criminal Justice Act 1985, any forfeiture referred to in subsection (2) of this section shall be deemed to be a minimum penalty in respect of the commission of an offence referred to in that subsection, except to the extent that the Court for special reasons relating to the offence thinks fit to order that the property, stock, or proceeds not be forfeit. "(4) Where any property is forfeited to the Crown under this section, the property shall thereupon vest in the Crown absolutely and free of all encumbrances.
"18H. Provisions relating to forfeited property-(1) Where any property, marine life, or proceeds (hereafter in this section all referred to as property) is ordered to be forfeit to the Crown under section 18G of this Act, the Minister may, subject to the provisions of this section, dispose of that property as the Minister thinks fit. "(2) Any person whose property has been forfeit to the Crown under section 180 of this Act or any person having a legal or equitable interest in such property may apply to the Minister within 30 days of the conviction for 248 Fisheries
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Enactment Amendment
1971, No. 15-The Marine release of the property so forfeited; and Reserves Act 1971 (R.S. the Minister may order the release of Vol. 22, p. 751)-continued such property on payment to the Crown of such amount (if any) as the Minister thinks appropriate, being an amount not exceeding the amount the items otherwise forfeited are estimated by the Director-General to realise if sold by public auction in New Zealand. "181. Offences-(1) Every person commits an offence against this Act who, without lawful authority or reasonable
excuse,- "(a) Introduces into a marine reserve any living organism; or "(b) Discharges or causes to be discharged in or into a reserve, directly or indirectly, any toxic or polluting substance of any kind injurious to marine life; or "(c) Breaks or injures any fence, building, apparatus, or erection in a reserve; or "(d) Breaks, cuts, or injures in, or removes from, a reserve any or any part of any marine life, stone, mineral, fixture, furniture, utensil, t001, apparatus, or thing of any kind; or "(e) Digs, cuts, or injures the sea-bed, or leaves any rock, stone, or boulder overturned, in a
reserve; or "(f) Uses in a reserve any explosive or discharges in or into a reserve any firearm; or "(g) Shoots at or spears any marine life or any other object or thing in a reserve with a firearm; or "(h) Takes from or destroys or injures or in any manner disturbs or interferes with any marine life in a reserve; or Fisheries 249
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Enactment Amendment
1971, No. 15-The Marine "(i) Takes or removes from a reserve Reserves Act 1971 (R.S. any mineral, gravel, or other Vol. 22, p. 751)-continued substance or thing whatever;
or
"(i) Deposits or throws in a reserve any rubbish or any substance or article of a dangerous or offensive nature, except in a place or receptacle approved or provided for the purpose by the Director-General; or "(k) Erects in a reserve any building, sign, hoarding, or apparatus;
or "(1) In any way interferes with the reserve or damages the scenic or natural features of the
reserve; or "(m) Taking or removing from a
reserve for commercial purposes any marine life. "(2) A person shall be deemed to have taken or removed marine life from a reserve, for commercial purposes, if he or she is found in a reserve in possession of an amount exceeding 3 times the annateur individual limit (if any) prescribed in respect of that marine life in regulations made under the Fisheries Act 1994. "(3) Every person commits an ofrence who uses, sells, or otherwise disposes of, or is in possession of, any marine life, mineral, gravel, or other substance or thing whatever knowing the same to have been removed unlawfully from a reserve. "19. Penalties-(1) Every person who commits an offence against this section is liable on summary conviction,- "(a) In the case of an offence against section 18, (1) (m) of this Act, to imprisonment for a term not exceeding 3 months or to a 250 Fisheries
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Enactment Amendment
1971, No. 15-The Marine fine not exceeding $250,000, Reserves Act 1971 (R.S. or to both: Vol. 22, p. 751)-continued "(b) In the case of an offence against any of paragraphs (al, (b), (c), (d), (el, (h), and (i) of section 18, (1) of this Act, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $10,000, or to both: "(c) In the case of an offence against any of paragraphs (f), (g), (k), and (1) of section 181 (1) or against section 18 (3) of this Act, to imprisonment for a term not exceeding 3 rnonths or to a fine not exceeding $5,000, or to both:
"(d) In any other case, to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,500, or to both. "(2) Any person convicted of an offence against section 181 of this Act shall, in addition to any penalty for the person may be liable under this section, pay to the Crown the full market value of any substance removed from, or for the damage done to, the reserve or to any marine life growing or being thereon. That value or damage or cost shall be assessed by a District Court judge, and shall be recoverable in the same manner as a fine." By repealing section 21. By omitting from section 24 (2) (f) (as added by section 60 of the Conservation Law Reform Act 1990) the expression "$200", and substituting the expression "$2,500". Fisheries 251
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1977, No. 28-The Territo- By repealing the defmitions of the terms rial Sea and Exclusive Eco· "fish", "fishery", "fishing", "fishing nomic Zone Act 1977 craft", "foreign fishing craft", "licence", "licensee" "master", "owner", "shellfish", "take", and "total allowable catch" in section 2 (1). By repealing section 82, and substituting the following section: "32. Onus of proof in respect of certain offences-In any proceedings under this Act where a defendant is charged with having contravened any provision in any regulations made under this Act under which a licence or permit, or the consent of any person, is required for the doing of any act, the onus shall be on the defendant to prove that at the time to which the charge relates, the requisite licence, permit, or consent was duly held." 1978, No. 80-The Marine By inserting in section 2 (1), in their Mammals Protection Act appropriate alphabetical order, the 1978 following definitions: Aquatic life' means any species of plant or animal life which, at any time in the life history of the species, must inhabit water; and includes seabirds (whether or not in an aquatic environment): "'Fishing'- "(a) Means the catching, taking, or harvesting of fish, aquatic life, or seaweed; and "(b) Includes- "(i) Any other activity that may reasonably be expected to result in the catching, taking, or harvesting of fish, aquatic life, or seaweed; and "(ii) Any operation in support of or in preparation for any activities described in this deftnition: " 'Fishing-related mortality' means an accidental or incidental death of 252 Fisheries
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Enactment Amendment
1978, No. 80-The Marine any marine mammal in the Mammals Protection Act course of fishing: 66 6 1978-continued Human·induced mortality' means the death of any marine mammal that can be attributed directly or indirectly to any human activity: 66 6 Population rnanagennent plan' means a plan approved under section 3E of this Act: Threatened species' means any species of marine mammal that meets the criteria for threatened that is for the time being determined by the World Conservation Union:". By omitting from the definition of the term "New Zealand fisheries waters" in section 2 (1) the words "Fisheries Act 1908", and substituting the words "Fisheries Act 1994". By inserting, after section 3D (as inserted by section 107 of the Conservation Law Reform Act 1990), the following sections:
"SE. Population nianagennent plans-(1) The Minister may from time to time approve population management plans containing all or any of the following: "(a) An assessment of the biology and status of threatened species and other species of marine mammals: "(b) An assessment of any known fisheries interaction with marine mammals: "(c) The degree of risk caused by fishing-related mortality and other human induced sources of mortality to threatened species and other species of marine mammals, whether within the territorial waters of New Zealand or New Zealand Fisheries 253
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Enactment Amendment
1978, No. 80-The Marine Fisheries waters or elsewhere Mammals Protection Act within the ranfie of the species: 1978-continued "(d) An estimate ot the range of human induced mortality for threatened and other marine mammals which would allow the criteria specified in section 3F of this Act to be met: "(e) An estimate of the range of fishing-related mortality for threatened species and other species of marine mammals within which the criteria specified in section 3F of this Act to be met: "(f) The maximum allowable level of fishing-related mortality for threatened species and other species of marine mammals at which the criteria specified in the plan to be met: "(g) Recommendations to the Minister of Fisheries on measures to mitigate the fishing-related mortality of threatened species and other species of marine mammals: "(h) Recommendations to the Minister of Fisheries on the level of information to be collected on fishing-related mortality. "(2) A population management plan prepared under this section may be combined with any population management plan prepared under section 14F of the Wildlife Act 1953. "3F. Criteria to be used in determining maximum levels of fishing-related mortality-In deter· mining the maximum allowable level of fishing-related mortality for any species, the Minister shall have regard to the following criteria: "(a) In the case of threatened species, the level of fishing-related 254 .Fisheries
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1978, No. 80-The Marine mortality should not prevent Mammals Protection Act the species achieving a non· 1978-continued threatened status as soon as reasonably practicable, and in any event within a period not exceeding 20 years: "(b) In the case of any other species of marine mammal, the level of fishing·related nnortality should neither cause a net reduction in the size of the
population nor seriously threaten the reproductive capacity of the species. "SG. Procedure for preparation and approval of population management plans-(1) Population management plans shall be prepared and approved as tollows: "(a) The Director-General shall prepare every population manaement plan in consuitation with every Conservation Board affected by the proposal, Te Ohu Kai Moana, the New Zealand Seafood Industry Board, the Fishing Industry Association of New Zealand Inc., The New Zealand Federation of Commercial Fishermen Inc., the Fishing Industry Guild, such persons as the Director· General considers represent environmental, commercial, and recreational interests, and such other persons or organisations, including iwi, as the Director-General considers have an interest in the plan: "(b) The Director-General shall then publish notice of the draft plan at least once in each of the daily newspapers published in Auckland, Wellington, Fisheries 255
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Enactment Amendment
1978, No. 80-The Marine Christchurch, and Dunedin, Mammals Protection Act respectively: 1978-continued "(c) Every notice under paragraph (b) of this subsection shall- "(i) State that the draft plan is available for inspection at the places and times specified in the notice; and "(ii) Call upon persons or organisations interested to lodge with the Director- General submissions on the draft before the date specified for the purpose in the notice, being a date not less than 40 working days after the date of the publication of the notice; and "(iii) Require any person who wishes to be heard in support of the person's submission to so advise the Director- General:
"(d) Any person or organisation rnay make written submissions to the Director-General on any draft plan, at the place and before the date specified for the in the purpose notice: "(e) From the time of publication of a draft plan until public opinion on it has been made known to the Director-General, he or she shall make the draft available for public inspection during 256 Fisheries
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Enactment Arnendment
1978, No. 80-The Marine normal offce hours, in such Mammals Protection Act places and quantities as are 1978-continued likely to encourage public participation in the development of the proposal: "(f) The Director-General shall give every person or organisation who or which, in making submissions on the draft, asked to be heard in support of his or her or its comments a reasonable opportunity of appearing before the Director- General: "(g) The Director·General may hear submissions from any . other person or oranisation consulted on the draft: "(h) The Director-General shall prepare a summary of the submissions received on the draft and public opinion made known on the draft: "(i) After considering such submissions and public opinion, the Director-General may revise the draft: "(j) The Director-General shall send to the Minister of Fisheries and to the New Zealand Conservation Authority a copy of the surnnnary ared under paragraph (i) ofUis subsection together with a copy of the draft plan: "(k) The New Zealand Conservation Authority shall consider the summary of submissions and the draft plan and send to the Minister and the Director- General any comments on the draft: "(1) The Director-General, after having regard to any comments Fisheries 257
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Enactrnent Amendment
1978, No. 80-The Marine received under paragraph (k) of Mammals Protection Act this subsection,- 1978-continued "(i) May amend the draft: "(ii) Shall send to the Minister the surnrnary prepared under paragraph (i) of this subsection together with a copy of the draft plan: "(m) After having regard to- "(i) The provisions of sections 3E and D of this Act; and "(ii) All submissions made on the draft plan; and "(iii) Such other matters as the Minister considers relevant,- the Minister may approve the plan subject to the concurrence of the Minister of Fisheries and refer it to that Minister for concurrence: "(n) The Minister of Fisheries may ConCur to the draft plan after having regard to the impacts of implementing the maximum allowable level of fishing- related mortality on the fishing industry and such other
matters as that Minister considers relevant. "(o) The Minister, with the concurrence of the Minister of Fisheries, may approve the plan: "(p) The approved plan shall be available for public inspection at the head office of the Department of Conservation at such times as may be specified in the notice given in respect 258 Fisheries
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Enactment Amendment
1978, No. 80-The Marine of the plan under subsection (2) of Mammals Protection Act this section. 1978-continued "(2) The Director-General shall, by notice in the Gazette, specify- "(a) The species to which the approved plan relates; and "(b) The maximum allowable level of fishin-related mortality specihed in the approved plan; and "(c) The times at which the approved plan is available for public Inspection at the head office of the Departrnent of Conservation. "(3) Any approved plan may be amended and paragraph (a) and paragraphs (1) to (p) of subsection (1) and subsection (2) of this section shall apply to every such amendment with any necessary modifications." By inserting in section 16, after the word "accidentally" wherever it occurs, the words "or incidentally". By omittin from section 16 the word "accident ' wherever it occurs, and substituting in each case the word "event". By inserting in section 26(4), after the words "was accidental", the words ", or incidental,". 1988, No. 20-The State By omitting from the First Schedule (as Sector Act 1988 substituted by section 28 (1) of the State Sector Amendment Act (No. 2) 1989) the words "Ministry of Agriculture and Fisheries", and substituting the words "Ministry of Agriculture".
WELLINGTON, NEW ZEALAND: Published under the authority of the New Zealand Government-1994 58804A -94»IS