“Approved service delivery organisation means a person declared to be an approved service delivery organisation, and to whom any specified functions, duties, or powers of the chief executive have been transferred, under section 296B

“Beach cast seaweed means seaweed of any species that is unattached and cast ashore

“Conservation services means outputs produced in relation to the adverse effects of commercial fishing on protected species, as agreed between the Minister responsible for the administration of the Conservation Act 1987 and the Director-General of the Department of Conservation, including—

• “(a) Research relating to those effects on protected species:

• “(b) Research on measures to mitigate the adverse effect of commercial fishing on protected species:

• “(c) The development of population management plans under the Wildlife Act 1953 and the Marine Mammals Protection Act 1978:

“Financial year means a period of 12 months commencing on 1 July and ending with 30 June

“Fisheries services means outputs produced for the purpose of this Act, the Fisheries Act 1983, or the Marine Farming Act 1971, as agreed between the Minister and the chief executive; and includes—

• “(a) The management of fisheries resources, fishing and fish farming:

• “(b) The enforcement of provisions relating to fisheries resources, fishing, and fish farming:

• “(c) Research relating to fisheries resources, fishing, and fish farming, including stock assessment and the effects of fishing on the aquatic environment:

• “(d) The performance or exercise, by the Minister or the chief executive or any other person, of a function, duty, or power conferred or imposed relative to fisheries resources, fishing, or fish farming:

“Infringement fee, in relation to an infringement offence, means the appropriate infringement fee set in respect of that offence by regulations made under section 297(1)(nc)

“Infringement offence means an offence prescribed as an infringement offence against this Act by regulations made under section 297(1)(na)

“Long-term viability, in relation to a biomass level of a stock or species, means there is a low risk of collapse of the stock or species, and the stock or species has the potential to recover to a higher biomass level

“Multi-species stock means a quota management stock that consists of 2 or more species

“Outputs means the goods and services that are produced by a department, Crown entity, Office of Parliament, or any other person or body

“Overseas person has the same meaning as in section 2(1) of the Overseas Investment Act 1973

“Specified functions, duties, or powers, in relation to an approved service delivery organisation, has the meaning given to it by section 296A

“Standards and specifications means standards and specifications issued under section 296O”.

“Deemed value means an interim deemed value or an annual deemed value

“Deemed value amount means the amount of any interim or annual deemed value payable in respect of any catch taken in excess of any annual catch entitlement, as determined under section 76

“Deemed value rate means the rate of an interim or annual deemed value payable in respect of any stock, as determined under section 75”.

• “(b) Quota that becomes individual transferable quota under section 49(3):

• “(ba) Individual transferable quota allocated under Part 2A of the Fisheries Act 1983 that has been converted into quota shares under section 343:”.

“3A

• “(1) For the purposes of sections 78, 79, and 91, a person is associated with another person if—

  • “(a) The interest of 1 of the persons in any fishing is subject to the effective control (whether direct or indirect) of the other; or

  • “(b) The interest of both persons in any fishing is subject to the effective control (whether direct of indirect) of another person.

  “(2) Without limiting the generality of subsection (1), in determining whether a person is an associated person, regard may be had to—

  • “(a) Shareholdings in, debentures over or directorships of, any company that has an interest (whether direct or indirect) in the fishing; and

  • “(b) Any trust that has a relationship to the fishing; and

  • “(c) Family, domestic, and business relationships between—

    • “(i) Persons having an interest in the fishing or in companies of the kind referred to in paragraph (a), or in trusts of the kind referred to in paragraph (b); and

    • “(ii) Any other persons.

  “(3) For the purposes of this section, unless the contrary is proven, person A is deemed to be subject to the effective control of person B in relation to fishing if person A is, in relation to that fishing,—

  • “(a) Accustomed to following the instructions of person B; or

  • “(b) Accustomed to acting in a manner consistent with advancing the interests of person B; or

  • “(c) A company and person B holds—

    • “(i) The right to exercise or control the exercise of 25% or more of the voting power at any meeting of the company; or

    • “(ii) 25% or more of any class of shares in the company.

  “(4) Despite subsections (1) to (3), for the purpose of this section,—

  • “(a) The Commission is not associated with any other person; and

  • “(b) A person is not associated with any other person merely because either or both of those persons are associated with the Commission.

  “(5) A bank registered under the Reserve Bank of New Zealand Act 1989 is not associated with any other person merely because the bank has, in the ordinary course of its business as a financier, been granted any interest in fishing owned or controlled by that person.”

• “(2A) Before setting or varying any sustainability measure under this Part or making any decision or recommendation under this Act to regulate or control fishing, the Minister must take into account—

  • “(a) Any conservation services or fisheries services; and

  • “(b) Any relevant fisheries plan approved under this Part; and

  • “(c) Any decisions not to require conservation services or fisheries services.”

• “(b) Implement any sustainability measure or the variation of any sustainability measure, as set or varied under subsection (1),—

  • “(i) By notice in the Gazette; or

  • “(ii) By recommending the making of regulations under section 298.”

“11A

• “(1) The Minister may from time to time approve, amend, or revoke a fisheries plan.

  “(2) A fisheries plan approved under subsection (1) may relate to 1 or more stocks, fishing years, or areas, or any combination of these things.

  “(3) Without limiting anything in subsection (2), a fisheries plan may include—

  • “(a) Fisheries management objectives to support the purpose and principles of the Act:

  • “(b) Strategies to achieve fisheries management objectives, which may include—

    • “(i) Sustainability measures set or varied under any of sections 11, 13, 14, and 15:

    • “(ii) Rules to manage the interaction between different fisheries sectors:

  • “(c) Performance criteria to measure the achievement of the objectives and strategies:

  • “(d) Conservation services or fisheries services:

  • “(e) Contingency strategies to deal with foreseeable variations in circumstances.

  “(4) Nothing in this section prevents the Minister from considering a proposal under Part IX.”

“14A Alternative total allowable catch for stocks specified by Order in Council

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister with the concurrence of the Minister responsible for the administration of the Environment Act 1986, apply section 14B to the quota management stock or stocks specified in the order.

  “(2) No recommendation relating to any stock may be made under subsection (1) unless quota owners (‘proposers’) who hold in the aggregate at least 95 000 000 quota shares in that stock propose to the Minister that he or she recommend the making of an Order in Council under subsection (1).

  “(3) A proposal made under subsection (2) must—

  • “(a) Specify the concerns (if any) of the quota owners who do not support the proposal; and

  • “(b) Specify what arrangements are in place to address those concerns; and

  • “(c) Address the matters specified in subsection (4).

  “(4) In considering making a recommendation under subsection (1), the Minister must have regard to the following:

  • “(a) The need to commission appropriate research to assess the impact of the order on the stock; and

  • “(b) The need to implement measures to improve the quality of information about the stock; and

  • “(c) Whether it is appropriate to close areas to commercial fishing to reduce any sustainability risk to that stock; and

  • “(d) The need to avoid any significant adverse effects on the aquatic environment of which the stock is a component.

  “(5) No recommendation may be made under subsection (1) in relation to a proposal made under subsection (2) unless the Minister is satisfied that—

  • “(a) The stock is taken primarily as an incidental catch during the taking of 1 or more other stocks and is only a small proportion of the combined catch of the stock and other stock or stocks; and

  • “(b) The total benefits of managing the stock at a level other than that permitted under section 13 out weigh the total costs; and

  • “(c) Managing the stock at a level other than that permitted under section 13 will have no detrimental effects on non-commercial fishing interests in that stock; and

  • “(d) The stock is able to be maintained above a level that ensures its long-term viability; and

  • “(e) The purpose of the Act would be better achieved by setting a total allowable catch otherwise than in accordance with section 13.

“14B Alternative total allowable catch for certain stocks

• “(1) Despite section 13, in the case of any quota management stock to which this section applies, the Minister must, by notice in the Gazette, set a total allowable catch for that stock in accordance with this section.

  “(2) Subject to subsection (3), the Minister must set a total allowable catch under subsection (1) that is no greater than a level that will allow the taking of another stock or stocks in accordance with the total allowable catch and the total allowable commercial catch set for that other stock or stocks.

  “(3) The Minister must set a total allowable catch that maintains the stock above a level that ensures its long-term viability.

  “(4) When setting a total allowable catch under subsection (1), the Minister must be satisfied that quota owners have taken, and will continue to take, all reasonable steps (including, but not limited to, modifying fishing methods, fishing areas, and times of fishing) to minimise take of the stock.

  “(5) Every total allowable catch set under subsection (1) for any stock continues to apply in each fishing year for the stock unless varied under subsection (6).

  “(6) The Minister may from time to time, by notice in the Gazette, vary any total allowable catch set under subsection (1) for any stock by increasing or reducing the total allowable catch.

  “(7) Without limiting subsection (1) or subsection (6), the Minister may set or vary any total allowable catch at, or to, zero.

  “(8) The setting or variation of a total allowable catch under this section has effect on and from the first day of the next fishing year for the stock concerned.

“14C Stock may be declared no longer subject to section 14B

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, declare that section 14B no longer applies to the stock specified in the order.

  “(2) If an order under subsection (1) is made in respect of any stock, the total allowable catch for the stock must be set under section 13 or section 14, as the case may require.”

• “(5A) Without limiting subsection (5)(c), the Minister may amend a declaration under section 18 at any time before the allocation of provisional catch history under section 36 or section 41, if the declaration was made on the basis of incorrect or misleading information, or as a result of a mistake.”

• “(7) Before making a declaration under section 18 or amending a declaration under subsection (5A), the Minister must consult the persons or organisations considered by the Minister to be representative of those classes of persons having an interest in the matters referred to in subsection (1).

• “(8) Before making a declaration under section 18, the Minister must also have regard to the costs and benefits of introducing the stock into the quota management system.”

“25 Alteration of quota management areas

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister,—

  • “(a) Alter a quota management area or quota management areas—

    • “(i) By dividing an area into smaller quota management areas; or

    • “(ii) By amalgamating a quota management area (or defined area or areas within a quota management area) with any adjoining quota management areas (or defined area or areas within any adjoining quota management area); or

    • “(iii) By dividing a multi-species stock into 2 or more stocks; or

    • “(iv) By amalgamating 2 or more quota management stocks; or

    • “(v) By doing any combination of those things:

  • “(b) In relation to quota for squid in a quota management area being altered under this section, remove any method restriction applying to that quota:

  • “(c) Amend the First Schedule by adding a description of any new quota management area or quota management areas created as a result of an alteration under paragraph (a).

  “(2) The Minister may make a recommendation under subsection (1) if—

  • “(a) The Minister complies with section 25A and quota owners who hold in the aggregate not fewer than 75 000 000 quota shares for any stock that would be affected by the proposed alteration have requested the Minister to make such a recommendation; or

  • “(b) The Minister complies with section 25B, in which case a request specified in paragraph (a) is not required.

  “(3) Before recommending the alteration of any quota management area under subsection (1), the Minister must—

  • “(a) Have regard to—

    • “(i) Non-commercial fishing interests in the affected area; and

    • “(ii) The biological characteristics of each stock that would be affected by the recommendation; and

    • “(iii) Such other matters as the Minister considers relevant; and

  • “(b) Consult the persons and organisations considered by the Minister to be representative of those classes of persons having an interest in the relevant quota management area, including Maori, recreational, commercial and environmental interests; and

  • “(c) Provide for the input and participation of tangata whenua who have—

    • “(i) A non-commercial interest in the stock or stocks concerned; or

    • “(ii) An interest in the effects of fishing on the aquatic environment in the area or areas concerned; and

  • “(d) For the purpose of paragraph (c), have particular regard to Kaitiakitanga.

  “(4) The Minister's recommendation under subsection (1) must reflect what is in the quota owners' agreement referred to in section 25A, or in the plan referred to in section 25B, as the case may be.

  “(5) Every Order in Council made under subsection (1)—

  • “(a) Comes into force on the commencement of the first day of the fishing year to which it relates; and

  • “(b) Must be made no fewer than 90 days before it comes into force.

  “(6) When an Order in Council is made under subsection (1), the chief executive must ensure that—

  • “(a) A memorial is recorded in the appropriate register against all quota for any stock affected by the alteration; and

  • “(b) The memorial is to the effect that the stock will be affected by the alteration.

“25A Alteration of quota management areas with agreement of quota owners

• “(1) The Minister may not recommend the alteration of any quota management area under section 25(1) in response to a request referred to in section 25(2)(a) unless the Minister is satisfied that—

  • “(a) The purpose of this Act would be achieved better by altering the quota management area or areas; and

  • “(b) The alteration would not unduly prejudice any quota owner who—

    • “(i) Owns quota shares for the stock or stocks in the quota management area or areas concerned; and

    • “(ii) Is opposed to the alteration; and

  • “(c) An agreement that, in the Minister's opinion, satisfactorily addresses the matters set out in subsection (2) has been executed (either as an original or in counterparts) by the quota owners who hold in the aggregate not fewer than 75 000 000 quota shares for each of the stock or stocks for the area or areas being altered; and

  • “(d) The quota owners have publicly notified their intention to seek an alteration of the quota management area or areas; and

  • “(e) The quota owners have also notified their intention to seek an alteration to all persons who are noted on the Quota Register as having an interest in the quota to which the proposed alteration relates.

  “(2) The agreement must provide for all of the following matters:

  • “(a) The boundaries of the proposed quota management area or quota management areas:

  • “(b) The species that comprise the stock or stocks after the proposed alteration:

  • “(c) The manner in which quota shares are to be apportioned after the alteration:

  • “(d) The interests of any aggrieved quota owner who holds quota shares in any area affected by the proposed alteration:

  • “(e) In the case of any alteration to a quota management area or quota management areas for squid, whether any method restriction applying to squid quota should be removed:

  • “(f) Any other matter required by the Minister to be addressed.

  “(3) The agreement must include provisions to resolve any grievance of a quota owner who holds quota shares in any area affected by the proposed alteration only if required by the Minister.

“25B Alteration of quota management areas without agreement of quota owners

• The Minister may recommend the alteration of any quota management area under section 25(1) without receiving a request from quota owners in accordance with section 25(2)(a) if the Minister—

  • “(a) Has approved a plan that provides for all of the following matters:

    • “(i) The boundaries of the proposed quota management area or areas:

    • “(ii) The species that comprise the stock or stocks after the alteration:

    • “(iii) The manner in which quota shares are to be apportioned after the alteration:

    • “(iv) In the case of any alteration to a quota management area or areas for squid, whether any method restriction applying to squid quota should be removed; and

  • “(b) Is satisfied having considered alternative options, that the alteration as specified in the plan is necessary to ensure sustainability; and

  • “(c) Has publicly notified his or her intention to recommend the alteration of the quota management area or areas; and

  • “(d) Has also notified his or her intention to recommend the alteration of the quota management area or areas to all persons who are not on the Quota Register as having an interest in the quota to which the proposed alteration relates.

“26 Effect on quota if quota management area altered

• “(1) This section applies if an order is made under section 25.

  “(2) Subject to sections 43 and 52, the chief executive must allocate quota—

  • “(a) In accordance with the agreement referred to in section 25A, or with the plan referred to in section 25B, as the case may be; and

  • “(b) In the form in which the quota was held immediately before the alteration takes effect.

  “(3) The chief executive must, as soon as practicable after the order is made, cause every quota owner affected by the alteration—

  • “(a) To be notified of the number of quota shares (if any) allocated to that person for each new stock and of any other relevant matters; and

  • “(b) To be given a schedule setting out the allocation of quota shares to all other quota owners for each new stock.

  “(4) On the close of the last day of the fishing year before the fishing year in which the alteration takes effect, all existing quota affected by an alteration under section 25 is cancelled, but all rights, obligations, and liabilities (including liability to forfeiture) relating to the cancelled quota apply to the new quota.

  “(5) All preferential allocation rights held under section 23 must be apportioned in the same manner as quota is allocated under subsection (2).

  “(6) This section does not confer on the Commission any entitlement to any further allocation quota under section 14 or under any other enactment.”

“31

• “(1) For the purposes of allocating quota, provisional catch history must be calculated,—

  • “(a) In the case of any stock controlled exclusively, as at the date of the publication of the relevant notice made under section 18, by means of an individual catch entitlement in accordance with section 40:

  • “(b) In the case of any other stock, in accordance with section 34.

  “(2) Despite this section and section 39, a stock is considered to be controlled exclusively by means of an individual catch entitlement despite any catch entitlement allocated to the Commission or to any person nominated by the Commission to hold that entitlement on the Commission's behalf.”

“32A Application of Part IV to estate of deceased fishing permit holder

• “(1) Subsections (2) and (3) apply for the purposes of this Part, in relation to any fishing permit other than a fishing permit to which section 63A of the Fisheries Act 1983 or section 93A of this Act relates, where the holder of the fishing permit has died.

  “(2) The deceased's estate must be treated as the holder of the fishing permit for the purposes of this Part.

  “(3) Where this Part requires that a person, at the date of publication of a notice under section 18, hold either a fishing permit that is current or (in the case of a controlled fishery) a controlled fishery licence, before eligibility for provisional catch history or quota can be determined or provisional catch history or quota allocated, it is sufficient if the deceased held a current fishing permit or licence (as the case may be) at the date of his or her death.

“32B Expiry of section 32A

• Section 32A expires with the close of 30 September 2007 and all provisional catch history held by an estate on or after the close of that date is cancelled.”

“35A

• “(1) If the Minister amends a declaration under section 19(5A), the chief executive may, if the chief executive considers it necessary to do so, do any 1 or more of the following:

  • “(a) Decide or determine the matters in section 35(1).

  • “(b) Revoke a notice issued under section 35(2):

  • “(c) Revoke a notice published under section 35(3):

  • “(d) Issue a new notice under section 35(2):

  • “(e) Publish a new notice under section 35(3).

  “(2) If the chief executive revokes a notice under subsection (1)(b),—

  • “(a) The chief executive must notify, in writing, the person who was issued the notice of—

    • “(i) The revocation; and

    • “(ii) The reasons for the revocation; and

  • “(b) All objections lodged under section 35(4) in respect of that notice must be treated as having been withdrawn.

  “(3) If the chief executive revokes a notice under subsection (1)(c),—

  • “(a) The chief executive must publicly notify—

    • “(i) The revocation; and

    • “(ii) The reasons for the revocation; and

  • “(b) All notifications received under section 35(5) in respect of the notice must be treated as having been withdrawn.”

• “(1A) Where a commercial fisher was authorised to take fish, aquatic life, or seaweed controlled by individual catch entitlement under a fishing permit to which section 63A of the Fisheries Act 1983 or section 93A of this Act relates, that fisher's provisional catch history must be treated as being held by the estate of a deceased fishing permit holder to which the fisher is related for the purposes of those sections.”

• “(iii) The estate of a fishing permit holder to which section 32A applies; and.”

• “(5) Every report given under section 11A of the Overseas Investment Act 1973 must include details of the permissions granted under subsection (3).”

“57A

• Sections 56 and 57 are administered by the Overseas Investment Commission constituted by the Overseas Investment Act 1973.”

“Order of transactions

“63 Order of transactions

• If any regulations made under section 297(1)(sa) provide that any transactions must be actioned in a specified order, the chief executive must action those transactions in accordance with this Act in the specified order.”

• “(1) On the first day of each fishing year, the chief executive must allocate to each quota owner the person's annual catch entitlement for any quota management stock that has been generated under section 66.”

• “(2B) If between the beginning of a fishing year and the beginning of the Foveaux Strait dredge oyster season in that year there is an increase in the total allowable commercial catch for Foveaux Strait dredge oysters,—

  • “(a) The chief executive must calculate the amount of annual catch entitlement that each person would have received under subsection (1) if the altered total allowable commercial catch had been in effect at the beginning of the fishing year, and an annual catch entitlement had been generated under section 66 accordingly; and

  • “(b) The chief executive must, on or before the first day of the Foveaux Strait dredge oyster season, allocate to each person who receives an amount of annual catch entitlement under subsection (1) for Foveaux Strait dredge oysters a further amount of annual catch entitlement for that stock calculated in accordance with the following formula:

    a – b = c

    where—

    • a is the amount calculated under paragraph (a) in respect of the person; and

    • b is the amount of annual catch entitlement allocated to the person under subsection (1); and

    • c is the amount of annual catch entitlement to be allocated under this subsection.

“67A Allocation of additional annual catch entitlement in case of underfishing

• “(1) As soon as practicable after the 15th day after the end of the fishing year for each stock (the first fishing year), the chief executive must, for each person who, as at that date, owns annual catch entitlement for the first fishing year for that stock, compare—

  • “(a) The annual catch entitlement for that stock (other than annual catch entitlement created under section 68) for the first fishing year owned by the person as at the close of the 15th day after the end of that fishing year; and

  • “(b) The reported catch (if any) for that stock, calculated in accordance with regulations made for that purpose under section 297, taken by that person during the first fishing year.

  “(2) If the amount of annual catch entitlement referred to in subsection (1)(a) is greater than the reported catch referred to in subsection (1)(b), the chief executive must—

  • “(a) Calculate the difference between that annual catch entitlement and that reported catch; and

  • “(b) Subject to subsection (5), allocate to the person an amount of annual catch entitlement for the stock for the fishing year after the first fishing year (‘the second fishing year’) that is the lesser of the following:

    • “(i) The amount calculated under paragraph (a):

    • “(ii) 10% of the amount of annual catch entitlement referred to in subsection (1)(a).

  “(3) This section does not apply to—

  • “(a) A stock listed in Schedule 5A; or

  • “(b) A stock for which the total allowable commercial catch at the beginning of the second fishing year is less than the total allowable commercial catch applying at the close of the first fishing year.

  “(4) The chief executive must allocate annual catch entitlement under this section as soon as practicable after the 15th day after the end of the first fishing year.

  “(5) The amount of annual catch entitlement allocated under subsection (2) must be rounded up or rounded down by the chief executive to the nearest kilogramme or, in the case of Foveaux Strait dredge oysters, to the nearest whole number of oysters.

  “(6) Any annual catch entitlement allocated under subsection (2)—

  • “(a) Is in addition to any annual catch entitlement generated under section 66 or created under section 68; and

  • “(b) Has effect for all purposes under this Act on and from the date of the allocation.

  “(7) The chief executive must, as soon as practicable after allocating any annual catch entitlement under subsection (2),—

  • “(a) Notify every person to whom annual catch entitlement has been allocated under this section of the amount of annual catch entitlement allocated to that person; and

  • “(b) Ensure that the amount of annual catch entitlement allocated is registered on the Annual Catch Entitlement Register.

“67B Amendments to Schedule 5A

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, amend Schedule 5A by—

  • “(a) Adding 1 or more stocks to that schedule:

  • “(b) Omitting 1 or more stocks from that schedule.

  “(2) An Order in Council made under subsection (1) takes effect on and from the first day of the next fishing year for the stocks concerned.

  “(3) Before recommending the making of an Order in Council under subsection (1), the Minister must consult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the stocks subject to the order.”

• “(1) No commercial fisher may take any stock listed in the Eighth Schedule unless the fisher holds, at the time of the taking, the minimum amount of annual catch entitlement that is specified in that schedule in relation to that stock.”

• “(7) Subject to subsections (8) and (9), the Governor-General may from time to time, by Order in Council, amend the Eighth Schedule by—

  • “(a) Adding 1 or more stocks to that schedule:

  • “(b) Omitting 1 or more stocks from that schedule:

  • “(c) Specifying a minimum holding of annual catch entitlement for any stocks being added to that schedule:

  • “(d) Increasing or reducing a minimum holding of annual catch entitlement for any stocks listed in that schedule.

• “(8) An Order in Council made under subsection (7) takes effect on the commencement of the following fishing year for the stocks concerned.

• “(9) No Order in Council may be made under subsection (7) except on the recommendation of the Minister following consultation by the Minister with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the stocks subject to the order.

• “(9A) The Minister may make a recommendation under subsection (9)—

  • “(a) On the Minister's own initiative; or

  • “(b) On request by quota owners who hold in the aggregate at least 75 000 000 quota shares in that stock.

• “(9B) A request under subsection (9A)(b) must—

  • “(a) Specify the concerns (if any) of the quota owners who do not support the proposal; and

  • “(b) Specify what arrangements are in place to address those concerns.”

• “(12) If a person contravenes subsection (1) or subsection (2), the person commits an offence and is liable to the penalty set out in section 252(5).”

“75 Minister to set deemed value rates

• “(1) For each quota management stock, the Minister must, by notice in the Gazette, set an interim deemed value rate and an annual deemed value rate for that stock, and those rates continue to apply in each fishing year for that stock until varied under this section.

  “(2) In setting an interim deemed value rate or an annual deemed value rate, the Minister—

  • “(a) Must take into account the need to provide an incentive for every commercial fisher to acquire or maintain sufficient annual catch entitlement in respect of each fishing year that is not less than the total catch of that stock taken by that commercial fisher; and

  • “(b) May have regard to—

    • “(i) The desirability of commercial fishers landing catch for which they do not have annual catch entitlement; and

    • “(ii) The market value of the annual catch entitlement for the stock; and

    • “(iii) The market value of the stock; and

    • “(iv) The economic benefits obtained by the most efficient commercial fisher, licensed fish receiver, retailer, or any other person from the taking, processing, or sale of the fish, aquatic life, or seaweed, or of any other fish, aquatic life, or seaweed that is commonly taken in association with the fish, aquatic life, or seaweed; and

    • “(v) The extent to which catch of that stock has exceeded or is likely to exceed the total allowable commercial catch for the stock in any year; and

    • “(vi) Any other matters that the Minister considers relevant.

  “(3) The Minister must set annual deemed value rates for a stock that are greater than interim deemed value rates set for that stock.

  “(4) The Minister may set different annual deemed value rates in respect of the same stock which apply to different levels of catch in excess of annual catch entitlement.

  “(5) The Minister may set an interim deemed value rate and an annual deemed value rate in respect of fish, aquatic life, or seaweed landed and received by a licensed fish receiver in the Chatham Islands that is different from the deemed value rate set in respect of fish, aquatic life, or seaweed of the same stock landed and received by a licensed fish receiver elsewhere.

  “(6) The Minister must not—

  • “(a) Have regard to the personal circumstances of any individual or class of person liable to pay the deemed value of any fish, aquatic life, or seaweed; or

  • “(b) Set separate deemed value rates in individual cases—

  “when setting an interim deemed value rate or an annual deemed value rate.

  “(7) Any interim or annual deemed value rate set under this section may be varied by the Minister in the same manner, and any rate set or varied under this section takes effect on the first day of the next fishing year for the stock concerned.

“75A Requirement to consult in relation to deemed values

• Before setting any interim deemed value rate or annual deemed value rate under section 75, the Minister must, if practicable, consult persons or organisations that the Minister considers represent classes of persons who have an interest in the stock, including Maori, recreational, commercial, and environmental interests.

“75B Limitation period for challenges to deemed values

• “(1) A court must not hear or determine, and no person may make or commence, an application or other proceeding in respect of a decision or purported decision of the Minister to set an interim deemed value rate or an annual deemed value rate unless the application is, or the proceedings are, made or commenced within 3 months after the date on which the decision, or purported decision, is notified in the Gazette.

  “(2) This section applies despite any other enactment or rule of law.”

• “(1) In this section and in sections 78, 79, and 80, unless the context otherwise requires, commercial fisher means any person who held a fishing permit at any time during the relevant fishing year.

• “(1A) As soon as practicable after the 15th day of each month (other than the first month) of every fishing year, the chief executive must, in accordance with regulations made for that purpose under section 297, in respect of every commercial fisher,—

  • “(a) Compare—

    • “(i) The annual catch entitlement for each stock (if any) for the fishing year owned by that commercial fisher as at the close of the 15th day of that month; and

    • “(ii) The reported catch for that stock (in kilogrammes) calculated in accordance with regulations made for that purpose under section 297, taken by that commercial fisher during the fishing year up to the end of the preceding month; and

  • “(b) Calculate, in respect of each stock, whether that commercial fisher's annual catch entitlement referred to in paragraph (a)(i) exceeds that commercial fisher's reported catch referred to in paragraph (a)(ii).

• “(1B) As soon as practicable after the 15th day after the end of the fishing year for each stock, the chief executive must, in accordance with regulations made for that purpose under section 297, in respect of every commercial fisher,—

  • “(a) Compare

    • “(i) The annual catch entitlement for each stock (if any) for the relevant fishing year owned by that commercial fisher as at the close of the 15th day after the end of the fishing year; and

    • “(ii) The reported catch for that stock (in kilogrammes), calculated in accordance with regulations made for that purpose under section 297, taken by that commercial fisher during the fishing year up to the end of the fishing year; and

  • “(b) Calculate, in respect of each stock, whether that commercial fisher's annual catch entitlement referred to in paragraph (a)(i) exceeds that commercial fisher's reported catch referred to in paragraph (a)(ii).”

• “(2A) Subject to subsection (2B), following the calculation referred to in subsection (1B), the chief executive must calculate the amount of annual deemed value (if any) that is to be demanded from the commercial fisher in accordance with regulations made for the purpose under section 297, and must demand the amount.

• “(2B) In calculating the amount of annual deemed value to be demanded from a commercial fisher, the chief executive must credit the commercial fisher with interim deemed value amounts demanded in respect of the relevant stock in the relevant fishing year (other than demanded amounts that have been remitted under subsection (2)).

• “(2C) For the sole purpose of determining an appropriate annual deemed value under this section, if a fisher to whom subsection (1B) applies holds no annual catch entitlement for a stock in respect of which the Minister has set different deemed value rates under section 75(4), that fisher is deemed to hold 1 kilogramme of annual catch entitlement for that stock.”

• “(3A) A demand for an amount of annual deemed value made by the chief executive under this section must be satisfied by payment of the sum of money so demanded.”

“77 Over-fishing thresholds

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister,—

  • “(a) Specify quota management stocks to which over-fishing thresholds apply:

  • “(b) Set over-fishing thresholds for those stocks:

  • “(c) Specify, for each of those stocks, whether a tolerance level applies and, if so, specify the tolerance level.

  “(2) An over-fishing threshold for a stock—

  • “(a) Is a specified percentage in excess of the annual catch entitlement held by a commercial fisher for the stock to which it relates:

  • “(b) Takes effect on the first day of the fishing year that commences next after the relevant order under subsection (1) is made.

  “(3) An order made under subsection (1) may set different over-fishing thresholds for different stocks.

  “(4) A tolerance level for a stock—

  • “(a) Is a specified amount or an amount calculated in accordance with a formula set out in the order:

  • “(b) Takes effect on the first day of the fishing year that commences next after the relevant order under subsection (1) is made.

  “(5) An order made under subsection (1) may set different tolerance levels for different stocks.

  “(6) Before making a recommendation under subsection (1), the Minister must consult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the over-fishing thresholds to which the recommendation relates.

“77A Matters to be taken into account when recommending over-fishing thresholds

• Before making a recommendation under section 77(1), the Minister may have regard to—

  • “(a) The effectiveness of deemed values in encouraging commercial fishers to acquire or maintain sufficient annual catch entitlement to cover their total catch; and

  • “(b) The particular need, in relation to target stocks, to encourage commercial fishers to acquire or maintain sufficient annual catch entitlement to cover their total catch; and

  • “(c) Actual or potential risks to the sustainability of the stock; and

  • “(d) Any other matters that the Minister considers relevant.

“78 Catch in excess of over-fishing thresholds

• “(1) If, following the calculation referred to in section 76(1A),—

  • “(a) A commercial fisher's reported catch for a stock exceeds that commercial fisher's annual catch entitlement for that stock; and

  • “(b) That excess equal to or greater than the over-fishing threshold for that stock, and, where a tolerance level applies to that stock, is greater than that tolerance level,—

  “then the current fishing permit of the commercial fisher and any associated person, and any permit subsequently issued to that commercial fisher and any associated person, are each deemed to contain a condition prohibiting the taking of any fish, aquatic life, or seaweed in the geographic area that is the quota management area for that stock, and that condition takes effect as from the close of the month in which the calculation in section 76(1A) is done.

  “(2) Despite subsection (1), the chief executive may approve the taking of fish, aquatic life, or seaweed in an area by a fisher who would otherwise be subject to the prohibition imposed by that subsection, and the chief executive may impose any conditions that he or she considers necessary to reduce the risk of the fisher taking the stock for which the fisher exceeded the over-fishing threshold.

  “(3) Conditions imposed under subsection (2) may relate to stocks, area, quantities, methods, the use or non-use of vessels, the specific vessel or types of vessels that may be used, and types and amounts of fishing gear, or otherwise.

  “(4) No commercial fisher may take any fish, aquatic life, or seaweed in contravention of a condition imposed by subsection (1) unless—

  • “(a) The commercial fisher has obtained the prior approval of the chief executive to take fish, aquatic life, or seaweed in that area; and

  • “(b) The taking is in accordance with any conditions imposed by the chief executive.

  “(5) Conditions imposed by subsection (1) or under subsection (2) cease to apply—

  • “(a) When the commercial fisher owns an amount of annual catch entitlement for the stock equal to or greater than the commercial fisher's total reported catch of that stock in the fishing year; or

  • “(b) At the close of the relevant fishing year,—

  “whichever happens first.

  “(6) If a person takes any fish, aquatic life, or seaweed in contravention of any conditions imposed by subsection (1) or under subsection (2), the person commits an offence and is liable to the penalty set out in section 252(3).”

• “(1) If the total amount of deemed values owed by any commercial fisher exceeds $1,000 and has not been satisfied within the time limit specified in section 76(5), the current fishing permit of the commercial fisher and any associated person, and any permit subsequently issued to that commercial fisher and associated person, are, on the expiration of that time limit, deemed to be suspended until the total amount of all outstanding deemed values owed by that commercial fisher is $1,000 or less.”

• “(1) The chief executive must, for each stock for which a commercial fisher holds an annual catch entitlement or has reported catch, notify the commercial fisher in writing of such matters as are specified for the purpose in any regulations made under section 297.

• “(1A) A notification under subsection (1) must be made as soon as practicable after the date specified for the purpose in regulations made under section 297.”

• “(8) Every notification given under this section is presumed to be conclusive for the purpose of this Act.”

• “(8) The chief executive may impose a condition on a fishing permit under section 92(1) that authorises the taking of freshwater eels limiting the total number of persons who may be named in any agreement under subsection (5).”

• “(1) Subject to subsections (2) to (6) and to sections 93 and 93A, the chief executive must issue to every person who applies for a fishing permit under this Act an appropriate fishing permit in the approved form for a period not exceeding 5 years.”

• “(4) Despite section 93 but subject to section 306 of the Ngai Tahu Claims Settlement Act 1998, the chief executive may issue a fishing permit under this section for any beach cast seaweed, except seaweed to which section 89(2)(f) of this Act applies.

• “(5) Before issuing a fishing permit to an applicant, the chief executive may require the applicant to provide a suitable third party guarantee, or bond, in an amount specified by the chief executive.

• “(6) No fishing permit may be issued to any person where that person, or any associated person,—

  • “(a) Has unpaid deemed value amounts in excess of $1,000 that are overdue; or

  • “(b) Is the holder of a fishing permit to which conditions apply by virtue of or under section 78(1) or (2).”

• “(1) A fishing permit—

  • “(a) Must state whether or not it authorises the taking of stocks that are subject to the quota management system; and

  • “(b) Must specify any other stocks that may be taken under the permit; and

  • “(c) May be subject to any conditions that the chief executive considers appropriate, including conditions relating to—

    • “(i) Areas, quantities, or methods:

    • “(ii) The use or non-use of vessels, and the specific vessel or types of vessel (if any) that may be used:

    • “(iii) Types and amounts of fishing gear:

    • “(iv) The taking or handling of fish, aquatic life, or seaweed:

    • “(v) Places where fish, aquatic life or seaweed may be landed:

    • “(vi) Periods of time within which the permit holder may take fish, aquatic life, or seaweed.”

“93A Fishing permits subject to moratorium issued to related persons on death of fishing permit holder

• “(1) Despite section 93, where a fishing permit has been issued under section 91 in respect of any species of fish (other than tuna), aquatic life, or seaweed, that is not for the time being subject to a quota management system, and the fishing permit holder has died, the chief executive may, under section 91 and in accordance with this section, issue a new fishing permit to a person related to the deceased fishing permit holder.

  “(2) A new fishing permit may not be issued under section 91 on the death of a fishing permit holder unless an applicant satisfies the chief executive that the applicant—

  • “(a) Is a person related to the deceased fishing permit holder; and

  • “(b) At the time of the death of the deceased, was dependent on the income earned by the deceased fishing permit holder, through use by the deceased of the fishing permit.

  “(3) Without limiting any other provisions of this Act, any conditions and obligations that applied to the deceased's fishing permit will apply to any new fishing permit issued under section 91 and in accordance with this section.

  “(4) The chief executive may require that any documents or information produced for the purposes of subsection (2) be verified by oath or statutory declaration of the applicant or of some other person related to the deceased fishing permit holder.

  “(5) Where the chief executive receives more than 1 application under this section in relation to the fishing permit of the same deceased person, the chief executive must allocate the new fishing permit according to—

  • “(a) The level of dependency referred to in subsection (2); and

  • “(b) The ability of the applicant to exercise the rights and obligations of fishing permit holders.

  “(6) Despite any other provision of this section, no new fishing permit may be issued under section 91 if—

  • “(a) The fishing permit holder died before 1 October 1996; or

  • “(b) The deceased did not hold a current fishing permit at the date of his or her death.

  “(7) For the purposes of this section, a person related to the deceased fishing permit holder means a person connected to the other person by blood relationship, marriage, or adoption; and, for the purposes of this subsection,—

  • “(a) Persons are connected by blood relationship if within the second degree of relationship:

  • “(b) Persons are connected by marriage if one is married to the other, or if one has a relationship in the nature of marriage with the other:

  • “(c) Persons are connected by adoption if one has been adopted as the child of the other or as a child of a person who is connected by marriage to the other.

  “(8) This section does not apply to tuna.

“93B Expiry of section 93A

• Section 93A expires with the close of 30 September 2007 and, on its expiration, the chief executive must revoke all current fishing permits issued before the close of that date in accordance with that section.”

• “(1) If the chief executive revokes a fishing permit under section 305A,—

  • “(a) The fishing permit must be immediately cancelled; and

  • “(b) The holder must ensure that the fishing permit and any duplicates are forthwith surrendered to the chief executive; and

  • “(c) No fish, aquatic life, or seaweed taken after the date of the supply of the false or misleading information may be regarded as eligible catch for the purposes of section 34; and

  • “(d) No individual catch entitlement under the permit entitles the holder to an allocation of any quota.”

“100

• The permit Register and the Fishing Vessel Register must each contain all the particulars required by regulations made under section 297.”

• “(6A) This section does not require that a vessel be registered merely because it is used to take fish, aquatic life, or seaweed produced as part of a lawful fish farming operation.”

• “(6) The chief executive must, as soon as practicable, ensure that the registration of a vessel is cancelled if—

  • “(a) The vessel is forfeit to the Crown; or

  • “(b) The chief executive has decided, on reasonable grounds and after receipt of advice from the Secretary of Labour, that a breach of any statutory provision referred to in section 103(5) has occurred.”

• “(1) For the purposes of this Act, all fish, aquatic life, or seaweed that is on board, or landed from, or transhipped from, any fishing vessel or fish carrier registered under this Act is deemed to have been taken or possessed for the purpose of sale, unless—

  • “(a) The taking or possession of the fish, aquatic life, or seaweed was in accordance with a general or particular approval of the chief executive and with any conditions imposed on that approval; and

  • “(b) The taking or possession occurred after that approval was given.”

“126

• “(1) The chief executive must have and use a seal that includes the words ‘Registry of Quota, New Zealand’ or ‘Registry of Annual catch Entitlement, New Zealand’, as the case may be.

  “(2) Every document bearing the imprint of the chief executive's seal. and purporting to be signed or issued by the chief executive or a person authorised to sign on the chief executive's behalf is, in the absence of proof to the contrary, deemed to be signed or issued by or under the direction of the chief executive.”

• “(b) The amount of annual catch entitlement that is allocated under section 67 or section 67A, and held by any person:

• “(ba) The amount of annual catch entitlement that is allocated under section 68, and held by any person:”

• “(3) Every application in relation to provisional catch history must be submitted within the transfer period referred to in section 37(2).”

• “(1) This section applies to any person who—

  • “(a) Sustains loss or damage through any omission, mistake, or wrongdoing of the chief executive or, as the case may be, an approved service delivery organisation who is responsible under this Act for keeping a register under section 98 or section 124, in the exercise of functions connected with the keeping of that register; or

  • “(b) Is deprived of the rights in respect of which the person is registered as owner or mortgagee of any individual transferable quota—

    • “(i) By the registration of any other person as the owner or as mortgagee, as the case may be; or

    • “(ii) By any error, omission, or misdescription in any record in respect of such quota kept by the chief executive or, as the case may be, an approved service delivery organisation who is responsible for keeping the quota Register, or in any entry or memorial in the Quota Register; or

  • “(c) Sustains any loss or damage by the wrongful inclusion in any such record of a statement about ownership or any mortgage or quota,—

  “and who, by virtue of section 168 or section 170, is unable to bring an action in respect of that quota or that interest as owner or mortgagee, as the case may be.

• “(1A) A person to whom this section applies may bring an action for recovery of damages against—

  • “(a) The Crown, if the relevant register was kept by the chief executive at the time of the mistake or wrongdoing; or

  • “(b) If the functions, duties, and powers connected with the keeping of the register were performed or exercised by an approved service delivery organisation under section 296B at the time of the mistake or wrongdoing, that approved service delivery organisation.”

• “(8) On any decision being made not to lay an information or charge against the person, the chief executive must immediately arrange for any caveat registered in accordance with a direction under subsection (1) to be cancelled.”

• “(1) Every person commits an offence who contravenes, or fails to comply with,—

  • “(a) Any sustainability measure implemented by notice in the Gazette under section 11(4)(b)(i); or

  • “(b) Any condition or requirement imposed by the chief executive in respect of any consent, approval, authority, permission, or certificate issued or granted under this Act (other than a requirement to pay a sum of money).”

• “(1) A person commits an offence if the person knowingly, for the purpose of obtaining any benefit under this Act,—

  • “(a) Makes any false or misleading statement; or

  • “(b) Omits any information—

  “in any communication, application, record, or return prescribed by or in accordance with this Act, or required for its administration.”

• “(3) No prosecution for an offence against this Act may be commenced except by—

  • “(a) The chief executive; or

  • “(b) The chief executive of the department for the time being responsible for the administration of the Conservation Act 1987; or

  • “(c) Any fishery officer; or

  • “(d) The Fish and Game Council in any district in which an offence has been committed or an offender is found.”

• “(e) Whether or not the person or body corporate had taken all reasonable steps and exercised due diligence to control the activities of the relevant person referred to in subsection (1)(a) or (b) or subsection (2)(a) or (b), to ensure that the act or omission did not occur.”

“246

• “(1) If a body corporate commits an offence against this Act, every director, and every person concerned in the management of the body corporate, also commits an offence if it is proved that—

  • “(a) The act or omission that constituted the offence took place with the director's or person's authority, permission, or consent; or

  • “(b) The director or person knew or should have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

  “(2) Every person to whom subsection (1) applies is liable on conviction to the appropriate penalty specified by this Act in respect of the provision creating the offence.

  “(3) A person may be convicted of an offence against this section even though the body corporate has not been charged with that offence or a similar offence.”

• “(d) Section 296B(5) (approved service delivery organisation knowingly falsifying information):

• “(e) Section 296ZC(3)(b) (approved service delivery organisation knowingly supplying false or misleading information to the Minister):

• “(f) Section 296ZC(3)(c) (approved service delivery organisation knowingly omitting material particular in information supplied to the Minister).”

• “(c) Section 78(1) (fishing in breach of a permit condition):

• “(ca) Section 78(2) (fishing in breach of a condition imposed by the chief executive):”.

• “(o) Section 271(2) (failure to keep or provide records or returns):

• “(p) Section 296ZC(3)(a) (failure by an approved service delivery organisation to supply information to the Minister):

• “(q) Section 296ZD(2) (failure by an approved service delivery organisation to have information audited).”

“255 Interpretation

• In sections 255A to 256, unless the context otherwise requires,—

  “Fish and any proceeds from the sale of such fish means any fish, aquatic life, or seaweed in respect of which the offence was committed (whether or not seized under section 207) and any proceeds from the sale of such fish, aquatic life, or seaweed under section 212

  “property used in the commission of the offence—

  • “(a) Means any vessel, vehicle or other conveyance, fishing gear, implement, appliance, material, container, goods, equipment, or thing used in respect of the commission of the offence (whether or not seized under section 207); but

  • “(b) Does not include any quota or annual catch entitlement:

  “Quota, in relation to a person convicted of an offence, means the number of quota shares or amount of provisional catch history, for each stock, that is equivalent to the number or amount held by that person, and any person who is an associated person in relation to that person, for the stock at the date of the commission of the offence

  “Serious non-commercial offence means any offence specified as such in regulations made under section 297.

“255A Forfeiture for infringement offence

• “(1) Subsection (2) applies if an infringement notice is issued to a person in respect of an infringement offence against this Act and any of the following occurs:

  • “(a) The infringement fee for the offence is paid; or

  • “(b) A copy of a reminder notice in respect of the infringement offence is filed in a District Court under subsection (3) of section 21 of the Summary Proceedings Act 1957 within the time specified in subsection (5) of that section; or

  • “(c) The informant and the defendant, in respect of the infringement notice, enter into an arrangement under section 21(3A) of the Summary Proceedings Act 1957 allowing the defendant to pay the relevant infringement fee by instalments; or

  • “(d) The person is found guilty, or admits the commission, of the infringement offence.

  “(2) The following are forfeit to the Crown unless (if subsection (1)(d) applies) the Court for special reasons relating to the offence orders otherwise:

  • “(a) Any fish of an amount or quantity not exceeding 3 times the amateur individual daily prescribed limit; and

  • “(b) Any proceeds from the sale of that fish.

“255B Forfeiture where person discharged or liable to fine up to $100,000

• “(1) Subsection (2) applies in the following cases:

  • “(a) On the discharge of any person without conviction under section 19 of the Criminal Justice Act 1985 in respect of any offence against this Act:

  • “(b) Where a person is proceeded against summarily (other than by way of an infringement notice) in respect of an infringement offence against this Act and is found guilty of, or pleads guilty to, the offence:

  • “(c) On conviction for an offence against this Act for which the person is liable to a fine not exceeding $10,000 (other than an offence referred to in section 255C):

  • “(d) On conviction for an offence against this Act (other than an offence referred to in section 255C) for which the person is liable to a fine exceeding $10,000 but not exceeding $100,000.

  “(2) The following are forfeit to the Crown unless the Court for special reasons relating to the offence orders otherwise:

  • “(a) Any fish and any proceeds from the sale of such fish; and

  • “(b) Any illegal fishing gear in respect of which the offence was committed (whether or not seized under section 207).

  “(3) On conviction of a person for an offence referred to in subsection (1)(d), the Court may order that any property used in the commission of the offence is forfeit to the Crown.

“255C Forfeiture for section 252(2), (3), and (5) offences, offences carrying fine of $100,000, repeat offences, and serious non-commercial offences

• “(1) Subsection (2) applies in the following cases:

  • “(a) On conviction for an offence referred to in section 252(2) or (3) or (5):

  • “(b) On conviction for an offence against this Act for which the person is liable to a fine of $100,000:

  • “(c) On conviction for a serious non-commercial offence:

  • “(d) Where a person has been convicted of 2 or more offences against this Act and—

    • “(i) The offences were committed on more than 1 occasion within a period of 3 years; and

    • “(ii) The offences were offences for which the person was liable to a fine exceeding $5,000.

  “(2) The following are forfeit to the Crown unless the Court for special reasons relating to the offence orders otherwise:

  • “(a) Any fish and any proceeds from the sale of such fish; and

  • “(b) Any illegal fishing gear in respect of which the offence was committed (whether or not seized under section 207); and

  • “(c) Any property used in the commission of the offence.

  “(3) On conviction of a person for an offence referred to in section 252(2) or (3), the Court may order that any quota is forfeit to the Crown.

“255D Forfeiture for section 252(1) or (4) offence

• “(1) Subsection (2) applies on conviction for an offence referred to in section 252(1) or (4).

  “(2) The following are forfeit to the Crown unless the Court for special reasons relating to the offence orders otherwise:

  • “(a) Any fish and any proceeds from the sale of such fish; and

  • “(b) Any illegal fishing gear in respect of which the offence was committed (whether or not seized under section 207); and

  • “(c) Any property used in the commission of the offence; and

  • “(d) Any quota.

“255E General provisions relating to forfeiture

• “(1) If any property, fish, aquatic life, seaweed, or quota is forfeited to the Crown under this Act, such property, fish, aquatic life, seaweed, or quota, despite section 168, vests in the Crown absolutely and free of all encumbrances.

  “(2) For the avoidance of doubt, any vessel used by the offender to take or transport fish, aquatic life, or seaweed must be treated as property used in the commission of the offence if the fish, aquatic life, or seaweed is the subject of an offence against—

  • “(a) Section 230 or section 231; or

  • “(b) Regulations made under section 297 or section 298 or section 299, which regulations relate to—

    • “(i) Making any false or misleading statements in any return; or

    • “(ii) Omitting any information in any return; or

    • “(iii) Completing, keeping, or providing any return.

  “(3) At the time of conviction of any offence against this Act, the Court must determine what, if any, of the following is forfeit under any of sections 255A to 255D:

  • “(a) Fish and any proceeds from the sale of such fish:

  • “(b) Illegal fishing gear:

  • “(c) Property used in the commission of the offence:

  • “(d) Quota.

  “(4) For the purposes of section 19 of the Criminal Justice Act 1985, any forfeiture referred to in any of sections 255A to 255D must be treated as a minimum penalty in respect of the commission of an offence, except to the extent that the Court for special reasons relating to the offence orders that the property, illegal fishing gear, fish, and any proceeds from the sale of such fish and quota not be forfeit

  “(5) Nothing in any of sections 255A to 255D applies to any offence against a provision in Part 15A.”

• “(b) Property used in the commission of the offence; or.”

“Infringement offences

“260A Infringement offences

• “(1) If a fishery officer has reason to believe that a person has committed an infringement offence, the fishery officer may—

  • “(a) Commence proceedings against the person for the alleged offence by laying an information under the Summary Proceedings Act 1957; or

  • “(b) Issue an infringement notice in respect of the alleged offence.

  “(2) Despite anything in section 21 of the Summary Proceedings Act 1957, leave of a District Court Judge or Registrar to lay an information is not necessary if a fishery officer proceeds with an infringement offence summarily.

  “(3) If an infringement notice is issued, a fishery officer may do 1 or more of the following with the infringement notice:

  • “(a) Deliver it (or a copy of it) to the person:

  • “(b) Fix it (or a copy of it) to a conspicuous part of a fishing vessel relating to the commission of the offence:

  • “(c) Send it (or a copy of it) to the person by post addressed to the person's last known place of residence or business.

  “(4) If the notice was fixed or sent in accordance with subsection (3), it is deemed to have been served on the person for the purposes of the Summary Proceedings Act 1957.

“260B Infringement notices

• “(1) Every infringement notice must be in an approved form and must include the following particulars:

  • “(a) Sufficient detail to inform the person of the time, place, and nature of the alleged offence:

  • “(b) The infringement fee for the offence:

  • “(c) The address at which the infringement fee may be paid:

  • “(d) The time within which the infringement fee may be paid:

  • “(e) A summary of the provisions of section 21(10) of the Summary Proceedings Act 1957:

  • “(f) A statement that the person has a right to request a hearing:

  • “(g) A statement of the consequences if the person does not pay the infringement fee or request a hearing:

  • “(h) Any other matters prescribed for that purpose.

  “(2) There may be different approved forms for different kinds of infringement offences.

“260C Infringement fees

• All infringement fees are payable to the chief executive, and the chief executive must pay all infringement fees received into the Crown Bank Account.”

“Part XIV
“Cost recovery

“261 Purpose of part

• The purpose of this Part is to enable the Crown to recover its costs in respect of the provision of conservation services and fisheries services.

“262 Cost recovery principles

• The cost recovery principles under this Part are as follows:

  • “(a) If a conservation service or fisheries service is provided at the request of an identifiable person, that person must pay a fee for the service:

  • “(b) Costs of conservation services or fisheries services provided in the general public interest, rather than in the interest of an identifiable person or class of person, may not be recovered:

  • “(c) Costs of conservation services or fisheries services provided to manage or administer the harvesting or farming of fisheries resources must, so far as practicable, be attributed to the persons who benefit from harvesting or farming the resources:

  • “(d) Costs of conservation services or fisheries services provided to avoid, remedy, or mitigate a risk to, or an adverse effect on, the aquatic environment or the biological diversity of the aquatic environment must, so far as practicable, be attributed to the persons who caused the risk or adverse effect:

  • “(e) The Crown may not recover under this Part the costs of services provided by an approved service delivery organisation under Part 15A.

“263 Cost recovery rules

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, make rules relating to the imposition of levies under this Part.

  “(2) The rules may—

  • “(a) Prescribe the proportion of costs of conservation services and fisheries services to be recovered as levies:

  • “(b) Prescribe who must pay levies:

  • “(c) Prescribe how the costs are to be apportioned between the persons who must pay the levies.

  “(3) Without limiting anything in subsections (1) and (2), different rules may apply in respect of different classes of persons, stocks, quota management areas, fishery management areas, conservation services, fisheries services, or any combination of them.

  “(4) Before making a recommendation under subsection (1), the Minister must—

  • “(a) Be satisfied that the rules to which the recommendation relates comply with the cost recovery principles in section 262; and

  • “(b) Have regard to the extent to which conservation services or fisheries services are wholly or partly purchased or provided by persons other than the Crown.

  “(5) Without limiting the Acts Interpretation Act 1924, no order made under this section is invalid because it leaves any matter to the discretion of any person.

“264 Levies

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister,—

  • “(a) Impose levies for the purpose of this Part:

  • “(b) Amend or revoke an order made under this section.

  “(2) The Minister must not make a recommendation under subsection (1) unless the Minister is satisfied that the proposed order to which the recommendation relates is consistent with rules in force under section 263.

  “(3) Without limiting the generality of subsection (1), an order may—

  • “(a) Prescribe, or provide for the fixing of different rates of levy in respect of different classes of persons, species or kinds of fish or aquatic life or seaweed, quantities of fish or aquatic life or seaweed, quota management areas, fishery management areas, or any combination of them:

  • “(b) Prescribe, or provide for the fixing of, different rates of levy based on the value of quota or annual catch entitlement, the port price of fish or aquatic life or seaweed landed, or on any other differential basis relating to commercial fishing or fish farming:

  • “(c) Specify that a levy is payable on the basis of the amount of fish, aquatic life, or seaweed processed or taken, or quota, annual catch entitlement, or individual catch entitlement held, during a specified period or on a specified day; or specify any other method for assessing that amount:

  • “(d) Prescribe a date by which, and the place at which, a levy is payable:

  • “(e) Prescribe different dates for the payment of different levies:

  • “(f) Authorise the chief executive to prescribe or provide for such matters as may be necessary or expedient to administer the collection of a levy imposed under subsection (1).

“265 Under-recovery and over-recovery of costs

• Without limiting anything in section 264, the Minister must, in recommending the making of an Order in Council under that section, have regard to the costs of any conservation services or fisheries services incurred by the Crown in a previous financial year and either—

  • “(a) Not recovered or not recoverable, in whole or in part, by a fee, charge, or levy relating to such services that was previously imposed under this Act or the Fisheries Act 1983; or

  • “(b) Over-recovered or over-recoverable, in whole or in part, by a fee, charge, or levy relating to such services that was previously imposed under this Act or the Fisheries Act 1983.

“266 Other fees, charges, or levies

• “(1) This part does not—

  • “(a) Limit any other provision in this Act that requires the payment, or empowers the imposition, of a fee, charge, or levy relating to conservation services or fisheries services; or

  • “(b) Limit the recovery of costs in respect of conservation services or fisheries services by any means other than a levy under section 264.

  “(2) This part does not require the Minister to have regard to the circumstances of any person when recommending the imposition of a fee, charge, or levy relating to conservation services or fisheries services.

  “(3) The Minister may not have regard to any deemed value payable or paid when recommending the imposition of a fee, charge, or levy relating to conservation services or fisheries services.

“267 Payment of levies

• “(1) Levies imposed by an order under section 264 are payable in accordance with the order or, if the order does not make such provision, within 20 days after the receipt of a demand from the chief executive.

  “(2) The chief executive may remit, waive, or defer the payment of a levy, in whole or in part, to correct an administrative error made in calculating the amount due.

  “(3) The chief executive and a person liable to pay a levy may enter into an arrangement for repayment of the amount of levy due.

“268 Caveats on quota

• “(1) The chief executive may, after giving a person notice in writing of the chief executive's intention to do so, direct that a caveat be registered over quota held by that person if—

  • “(a) The person is liable to pay—

    • “(i) A levy imposed under section 264; or

    • “(ii) An additional amount payable under section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995; and

  • “(b) The person does not pay the levy or additional amount in full within 2 months after the date on which payment of the levy is due, or within the time allowed under an arrangement with the chief executive, as the case may be; and

  • “(c) Payment of the outstanding levy or additional amount has not been waived under section 267(2) or section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995, as the case may be.

  “(2) The chief executive may direct that a caveat be registered under subsection (1) regardless of whether on not the levy has been imposed on the person as a quota owner.

  “(3) The chief executive—

  • “(a) Must direct that a caveat entered in a register under this section be withdrawn if the outstanding levy (including an additional amount payable under section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995) is paid in full to the chief executive:

  • “(b) May direct that a caveat entered in a register under this section be withdrawn if the chief executive and the person liable to pay the outstanding amount enter into an arrangement for repayment of the amount.

“269 Suspension of permit or licence where levies unpaid

• “(1) The chief executive may, by notice in writing, after giving a person notice in writing of the chief executive's intention to do so, suspend a fishing permit or special permit or licensed fish receiver's licence or controlled fishery licence held by the person if—

  • “(a) The person is liable to pay—

    • “(i) A levy imposed under section 264; or

    • “(ii) An additional amount payable under section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995; and

  • “(b) The person does not pay the levy or additional amount in full within 2 months after the date on which payment of the levy is due, or within the time allowed under an arrangement with the chief executive, as the case may be; and

  • “(c) Payment of the outstanding levy or additional amount has not been waived under section 267(2) or section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995, as the case may be.

  “(2) The chief executive may suspend a permit or licence under subsection (1) regardless of whether or not the levy has been imposed on the person as a holder of the permit or licence.

  “(3) If the person holds 2 or more fishing permits or special permits or licensed fish receiver's licences or controlled fishery licences, or holds any combination of 2 or more of them, the chief executive may suspend such of the permits or licences as he or she considers appropriate.

  “(4) A fishing permit or special permit or licensed fish receiver's licence or controlled fishery licence suspended under this section has no effect during the period of the suspension.

  “(5) The chief executive—

  • “(a) Must lift a suspension under this section if the outstanding levy (including any additional amount payable under section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995) is paid to the chief executive:

  • “(b) May, conditionally or unconditionally, lift a suspension under this section if the chief executive and the person liable to pay the outstanding amount of the levy enter into an arrangement for repayment of that amount.

  “(6) A court may at any time, on application by the holder of a fishing permit, special permit, licensed fish receiver's licence, or controlled fishery licence, that has been suspended under this section, make an order lifting the suspension subject to any sureties and conditions specified by the Court.

“270 Priority of debts

• “(1) For the purposes of the Seventh Schedule of the Companies Act 1993, every levy payable under this Part (including any amount by which the levy has been increased under section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995) has the priority accorded to sums referred to in clause 5 of that schedule.

  “(2) For the purposes of section 104 of the Insolvency Act 1967, every bevy payable under this part (including any amount by which the levy has been increased under section 18 of the Ministry of Agriculture and Fisheries (Restructuring) Act 1995) has the priority accorded to sums referred to in section 104(1)(e) of the Insolvency Act 1967.

“271 Records and returns

• “(1) The chief executive may, by notice in the Gazette,—

  • “(a) Require records and returns to be kept and provided by a person who must pay a levy:

  • “(b) Prescribe conditions relating to the keeping and provision of those records and returns.

  “(2) A person commits an offence if the person fails to comply with a requirement imposed by the chief executive under subsection (1), and is liable to the penalty set out in section 252(3).”

• “(5) No arrangement or contract under subsection (1)(b) between the chief executive and any other party (other than an agency of the Crown or other instrument of the Crown) may provide for that other party (or person acting on behalf of that other party) to perform or exercise any power that is conferred or imposed on fishery officers (other than honorary fishery officers or examiners) by or under Part VI of the Fisheries Act 1983 or by or under this Act.”

“Part 15A
“Performance of services by approved organisations

“296A Interpretation

• In this Part, unless the context otherwise requires, specified functions, duties, or powers—

  • “(a) Means any functions, duties, or powers of the chief executive, whether statutory or non-statutory in nature, that are—

    • “(i) Exclusively associated with the administration of quota; or

    • “(ii) Primarily associated with the administration of commercial fisheries; and

  • “(b) Includes the keeping of registers under sections 98 and 124; but

  • “(c) Does not include—

    • “(i) Any functions, duties, or powers of the Minister; or

    • “(ii) Any power conferred on fishery officers, honorary fishery officers, or examiners by or under the Fisheries Act 1983 or by or under this Act

“296B Transfer of specified functions, duties, or powers to approved service delivery organisations

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister after consultation with the Minister responsible for the administration of the Environment Act 1986, transfer any specified function, duty, or power to an approved service delivery organisation.

  “(2) An order transferring specified functions, duties, or powers to an approved service delivery organisation must—

  • “(a) Declare a person to be an approved service delivery organisation for such period as may be specified in the order; and

  • “(b) State which functions, duties, or powers are transferred to the approved service delivery organisation.

  “(3) The Minister must not make a recommendation under subsection (1) unless the Minister is satisfied that—

  • “(a) The proposed approved service delivery organisation is representative of quota owners who have an interest in those functions, duties, or powers; and

  • “(b) The proposed approved service delivery organisation is a company incorporated under the Companies Act 1993; and

  • “(c) The proposed approved service delivery organisation has the financial, management, and other resources to enable it to—

    • “(i) Assume responsibility for the carrying out of the functions, duties, or powers that are specified in the order; and

    • “(ii) Ensure that those functions, duties, or powers are carried out; and

  • “(d) The proposed approved service delivery organisation—

    • “(i) Has provided the chief executive with a monetary deposit or bond in accordance with section 296D; or

    • “(ii) Has established and is maintaining an alternative arrangement in accordance with section 296D; and

  • “(e) Standards and specifications have been issued in relation to the functions, duties, or powers.

  “(4) An order under subsection (1) may—

  • “(a) Specify the rights of the Crown in relation to information and data received, held, or generated in relation to the performance or exercise of the functions, duties, or powers; and

  • “(b) Provide that the information and data specified in the order is the property of the Crown.

  “(5) An approved service delivery organisation or other person who knowingly falsifies information or data to which an order under subsection (4) relates commits an offence and is liable on conviction to the penalty set out in section 252(1).

“296C Effect of transfer of specified functions, duties, or powers

• “(1) On and from the date specified for the purpose in the relevant order under section 296B,—

  • “(a) An approved service delivery organisation has the specified functions, duties, and powers under the relevant provisions of this Act or the Fisheries Act 1983 specified in the order, and may perform or exercise those functions, duties, or powers as if they had been conferred or imposed on the organisation directly by the relevant enactment; and

  • “(b) References to the chief executive (however expressed) in the provisions of this Act or the Fisheries Act 1983 specified in the order must be read as references to the approved service delivery organisation.

  “(2) An approved service delivery organisation is responsible to the Minister for ensuring that the specified functions, duties, or powers transferred to the organisation are performed or exercised in accordance with—

  • “(a) All applicable standards and specifications; and

  • “(b) All applicable directions given by the Minister under Section 296Q.

  “(3) The chief executive must not perform or exercise, and is not responsible for the performance or exercise of, any specified function, duty, or power that is transferred to an approved service delivery organisation by an order made under section 296B while the order is in force.

  “(4) Subsections (1) to (3) apply despite anything in the Commerce Act 1986.

  “(5) An approved service delivery organisation may perform or exercise its functions, duties, and powers—

  • “(a) By its own employees; or

  • “(b) By entering into an agreement or arrangement with any other agency or any other instrument of the Crown or any corporation sole, body of persons (whether corporate or unincorporated), or individual.

“296D Minister must require payment of bond

• “(1) The Minister must require each approved service delivery organisation—

  • “(a) To provide the chief executive with a monetary deposit or bond; or

  • “(b) To establish and maintain an alternative arrangement that satisfies the Minister that the specified functions, duties, or powers to be performed or exercised by the approved service delivery organisation can be transferred, at no cost to the Crown, to the Crown or an approved service delivery organisation on the expiry or earlier revocation of an order made under section 296B.

  “(2) If a monetary deposit or bond is required under subsection (1), it must be sufficient, in the opinion of the Minister, to meet the Crown's transfer costs.

  “(3) If a monetary deposit or bond is provided by an approved service delivery organisation under subsection (1) and the Minister is satisfied, during the period for which the order under section 296B is in force, that the amount of that deposit or bond is no longer sufficient to meet the Crown's transfer costs, the Minister may require the organisation to increase the amount of the monetary deposit or bond accordingly; and the organisation must comply with that requirement.

  “(4) If a monetary deposit or bond is provided by an approved service delivery organisation under subsection (1) and the Minister is satisfied, during the period for which the order under section 296B is in force, that the amount required to meet the Crown's transfer costs is less than the amount of the monetary deposit or bond, the Minister may remit the amount of the monetary deposit or reduce the amount of bond accordingly.

  “(5) Part VII of the Public Finance Act 1989 applies to any money paid to the chief executive by an approved service delivery organisation under this section.

  “(6) Any money paid to the chief executive under this section must be applied by the chief executive towards the payment of the Crown's transfer costs.

  “(7) The approved service delivery organisation is entitled to receive all interest from time to time earned on the money while it is held by the chief executive.

  “(8) The chief executive must pay the balance remaining, after applying the money in accordance with subsection (6), to the approved service delivery organisation or the surety under the bond, as the case may be.

  “(9) In this section, the Crown's transfer costs—

  • “(a) Means any costs to the Crown arising from the transfer of specified functions, duties, or powers from the approved service delivery organisation to the chief executive or to another approved service delivery organisation on the expiry or earlier revocation of an order made under section 296B; but

  • “(b) Does not include the value to the Crown of any property, rights, or obligations transferred under section 296H.

“Termination of orders transferring functions, duties, or powers

“296E Revocation of order transferring functions, duties, or powers to approved service delivery organisation

• “(1) The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, revoke or amend an order made under section 296B.

  “(2) The Minister may not make a recommendation under subsection (1) unless—

  • “(a) The approved service delivery organisation named in the order has agreed to the recommendation by notice in writing to the Minister; or

  • “(b) The requirements of subsection (3) have been satisfied and the Minister has complied with the requirements set out in subsection (4).

  “(3) The requirements of this subsection are that the Minister must be satisfied that—

  • “(a) The approved service delivery organisation has—

    • “(i) Failed to comply with any applicable standards and specifications; or

    • “(ii) Failed to comply with an applicable direction under section 296Q; or

    • “(iii) Failed to maintain an alternative arrangement under section 296D(1)(b); or

    • “(iv) Failed to comply with a requirement under section 296D(3) to increase the amount of a monetary deposit or bond; or

  • “(b) There is a serious problem with the organisation within the meaning of section 296ZE(2).

  “(4) The Minister must—

  • “(a) Give the approved service delivery organisation notice in writing of the Minister's intention to make the recommendation, accompanied by a statement of the Minister's reasons for the proposed recommendation; and

  • “(b) Give the approved service delivery organisation a reasonable opportunity to make submissions to the Minister in relation to the proposed recommendation; and

  • “(c) Consider any submissions made by the approved service delivery organisation.

“296F Effect of termination of transfer

• It an order made under section 296B expires or is revoked by the Governor-General under section 296E, and the functions, duties, or powers specified in the order are not immediately transferred to the same approved service delivery organisation, then—

  • “(a) The monetary deposit or bond (if any) held by the chief executive in relation to the approved service delivery organisation is forfeit to the chief executive, and must be applied in accordance with section 296D; and

  • “(b) Responsibility for the functions, duties, or powers is resumed by the chief executive.

“Transfer of property, rights, and obligations to chief executive

“296G Purpose of sections 296H to 296N

• The purpose of sections 296H to 296N is to ensure that the chief executive is able to resume responsibility for any specified function, duty, or power on the expiry or revocation of an order made under section 296B.

“296H Minister may transfer property, rights, and obligations to chief executive

• “(1) If an order made under section 296B expires or is revoked by an order under section 296E (whether or not that order has come into force), the Minister may transfer to the chief executive,—

  • “(a) By notice in writing to an approved service delivery organisation or any other person, any property of that organisation or person (including intellectual property) that is necessary for the performance or exercise of the functions, duties, and powers for which the organisation is or was responsible under the order made under section 296B; and

  • “(b) By notice in writing to any person other than an approved service delivery organisation, any rights and obligations of an approved service delivery organisation under any agreement or arrangement (including an employment contract) with that person that relate to the performance or exercise of those functions, duties, or powers.

  “(2) The Minister must send a copy of a notice given under subsection (1)(b) to the approved service delivery organisation.

  “(3) In this section and sections 296I to 296N,—

  “Intellectual Property—

  • “(a) Has the meaning provided for in Article 2 of the Convention establishing the World Intellectual Property Organisation done at Stockholm on 14 July 1967 and in the World Trade Organisation Agreement on the Trade Related Aspects of Intellectual Property Rights done at Marrakesh on 15 April 1994; and

  • “(b) Includes all intellectual property rights, including (without limitation) rights relating to circuit layouts and semi-conductor chip products, confidential information, copyright, geographical indications, patents, plant varieties, registered designs, registered and unregistered trade marks, and service marks:

  “Specified person means a person to whom a notice is given under subsection (1)(a) or (b) or subsection (2).

“296I Minister to give notice before transferring property, etc

• The Minister may not give a notice under section 296H unless the Minister—

  • “(a) Gives the specified person notice in writing of the Minister's intention to transfer any property, rights, or obligations to the chief executive under that section, including a statement of—

    • “(i) The property, rights, and obligations that the Minister proposes to transfer:

    • “(ii) The amount of compensation, if any, that the Minister proposes will be payable to the specified person; and

  • “(b) Gives the specified person a reasonable opportunity to make submissions to the Minister in relation to the proposed transfer; and

  • “(c) Considers any submissions made by the specified person.

“296J Content of notice to transfer property, rights, and obligations

• A notice given under section 296H must state—

  • “(a) The date on which it takes effect, being a date no earlier than 30 days from the date on which the notice is given to the specified person; and

  • “(b) That the specified person may, within the period specified in the notice, apply to a District Court for an order revoking the notice; and

  • “(c) That the notice will take effect—

    • “(i) If the person does not apply to a District Court, on the date specified in the notice; or

    • “(ii) If the person applies to a District Court and the application is dismissed, on the date the application is dismissed.

“296K Right of appeal to District Court

• “(1) A specified person may, within the period specified in a notice given under section 296H, apply to a District Court for an order revoking the notice.

  “(2) On an application under this section, if a District Court Judge is not satisfied that the transfer of any property, rights, or obligations to the chief executive is necessary for the performance or exercise of the functions, duties, or powers for which the approved service delivery organisation is or was responsible, the District Court Judge must—

  • “(a) Revoke the notice; or

  • “(b) Revoke that part of the notice that relates to that property, or to those rights or obligations.

“296L Date on which transfer of property takes effect

• “(1) A notice under section 296H takes effect,—

  • “(a) If the specified person does not apply to a District Court under section 296K, on the date stated in the notice as the date on which it takes effect; or

  • “(b) If the specified person applies to a District Court and the person's application is dismissed, on the date the application is dismissed.

  “(2) On the date that the notice takes effect—

  • “(a) The property specified in the notice becomes the property of the chief executive; and

  • “(b) The rights and obligations of the approved service delivery organisation under any agreement or arrangement specified in the notice become rights and obligations of the chief executive as if the chief executive, and not the organisation, had entered into the agreement or arrangement with the specified person.

  “(3) This section applies despite anything in any agreement or arrangement.

“296M Compensation for transfer of property

• “(1) If property is transferred to the chief executive under section 296H, the Crown is liable to pay to the specified person the market value of the property transferred, as determined by a registered valuer at the request of the chief executive.

  “(2) No compensation payable by the Crown under this section may be paid out of the monetary deposit or bond held by the chief executive in respect of the approved service delivery organisation.

“296N Resolution of disputes regarding compensation

• “(1) If there is any dispute or difference between the Minister and a specified person as to the amount of compensation payable to the person under section 296M, the matter must be referred to arbitration, and the Arbitration Act 1996 applies accordingly.

  “(2) For the purposes of any such arbitration, this section is a submission to arbitration within the meaning of the Arbitration Act 1996, and the reference is to 1 arbitrator, who is to be appointed—

  • “(a) By agreement between the Minister and the specified person; or

  • “(b) If the Minister and the specified person fail to agree, by the President of the New Zealand Institute of Valuers Incorporated.

  “(3) Despite subsection (1), the parties may resolve the dispute or difference either before or after the matter is submitted to arbitration, and, if the agreement is made after the date of any award of arbitration, the award is cancelled.

“Powers of Minister in relation to approved service delivery organisations

“296O Minister may issue standards and specifications

• “(1) The Minister may, from time to time, issue standards and specifications relating to the performance or exercise of specified functions, duties, or powers by approved service delivery organisations, and may amend or revoke any standards and specifications issued.

  “(2) Standards and specifications issued under this section may, without limitation, specify or provide for all or any of the following:

  • “(a) Descriptions of the specified functions, duties, or powers to be performed or exercised by each approved service delivery organisation to which those functions, duties, or powers apply:

  • “(b) Quantitative measures that each approved service delivery organisation is required to meet in respect of the functions, duties, or powers:

  • “(c) Performance standards that each approved service delivery organisation is required to meet in respect of the functions, duties, or powers:

  • “(d) Measures that an approved service delivery organisation is required to take to avoid conflicts of interest in the performance or exercise of the functions, duties, or powers specified in the relevant order under section 296B:

  • “(e) Records that each approved service delivery organisation is required to keep in relation to the performance or exercise of those functions, duties, or powers:

  • “(f) Reports that each approved service delivery organisation is required to provide to the Minister in relation to the performance or exercise of those functions, duties, or powers:

  • “(g) Requirements as to the auditing of the operations of—

    • “(i) Each approved service delivery organisation; and

    • “(ii) Any person with whom the approved service delivery organisation has an arrangement under section 296C(5) in relation to the performance or exercise of those functions, duties, or powers:

  • “(h) Constraints on the performance or exercise of any functions, duties, or powers by each approved service delivery organisation.

  “(3) Standards and specifications issued under this section may apply to any 1 or more approved service delivery organisations, or to any class or classes of approved service delivery organisation.

  “(4) An approved service delivery organisation must comply with the standards and specifications that apply to the functions, duties, or powers for which it is responsible.

“296P Procedure for issuing standards and specifications

• “(1) Before issuing or amending standards and specifications under section 296O, the Minister must consult—

  • “(a) The Minister responsible for the administration of the Environment Act 1986; and

  • “(b) Those classes of persons or those approved service delivery organisations that, in the opinion of the first-mentioned Minister, have an interest in the standards and specifications.

  “(2) Despite subsection (1), the Minister is not required to consult anyone if the Minister is satisfied that—

  • “(a) The standards and specifications need to be issued or amended urgently; or

  • “(b) The amendment is minor and will not adversely affect the substantial interests of any person.

  “(3) When the Minister issues or amends standards and specifications, the Minister must—

  • “(a) Give a copy of the standards and specifications to each approved service delivery organisation to which they relate; and

  • “(b) Publish a notice in the Gazette that complies with subsection (4).

  “(4) The notice published in the Gazette must—

  • “(a) Give a general indication of the nature of the standards and specifications; and

  • “(b) Specify where copies of the standards and specifications may be obtained.

“296Q Approved service delivery organisations must comply with directions

• “(1) The Minister may give a written direction to any approved service delivery organisation in respect of the performance or exercise by it of any specified functions, duties, or powers.

  “(2) The Minister may not give a direction in respect of—

  • “(a) A specific application to the approved service delivery organisation; or

  • “(b) A specific person.

  “(3) The Minister must—

  • “(a) Give a copy of the direction to each approved service delivery organisation to which the direction relates; and

  • “(b) As soon as practicable after giving the written notice,—

    • “(i) Publish the direction in the Gazette; and

    • “(ii) Present a copy of it to the House of Representatives.

  “(4) When performing or exercising any specified functions, duties, or powers an approved service delivery organisation must comply with any direction given to it by the Minister in accordance with this section.

“Sanctions for breach of standards and specifications or directions

“296R Sanctions for failing to comply with standards and specifications

• “(1) If an approved service delivery organisation fails to comply with any applicable standards and specifications, or with an applicable direction under section 296Q, the organisation is subject to sanctions under section 296W.

  “(2) Sanctions are civil penalties prescribed in regulations made under section 296ZI.

“296S Demerit points to be recorded by Minister

• “(1) This section applies if, in the opinion of the Minister, an approved service delivery organisation fails to comply with—

  • “(a) Any applicable standards or specifications; or

  • “(b) Any applicable direction under section 296Q.

  “(2) The Minister may record in respect of an approved service delivery organisation such number of demerit points for each failure referred to in subsection (1) as may be prescribed in regulations made under section 296ZI.

  “(3) If 2 or more such failures by an approved service delivery organisation occur in respect of the same set of circumstances,—

  • “(a) The Minister must record demerit points in relation to 1 failure only; and

  • “(b) If the failures do not carry the same number of demerit points, the Minister must record demerit points for the failure or 1 of the failures that carries the greatest number of points.

  “(4) Demerit points recorded under subsection (2) have effect on and from the date of the failure in respect of which the demerit points are recorded.

“296T Procedure for recording demerit points

• “(1) Before recording any demerit points in respect of an approved service delivery organisation, the Minister must give written notice to the organisation.

  “(2) The notice must state—

  • “(a) The failure that makes the approved service delivery organisation liable to have the demerit points recorded against the organisation; and

  • “(b) The number of demerit points specified in respect of that failure that the Minister proposes to record against the organisation; and

  • “(c) The right of the organisation to object to the Minister's decision by giving written notice to the Minister within 20 working days after the date of the Minister's notice (the stated 20-day period); and

  • “(d) That an objection must include a statement of the organisation's reasons for objecting; and

  • “(e) The Minister's right to record the demerit points if—

    • “(i) No objection is made within the stated 20-day period; or

    • “(ii) An objection is made without a statement of reasons; and

  • “(f) The consequences of further demerit points being recorded against the organisation.

  “(3) The Minister may withdraw a notice at any time, in which case demerit points will not be recorded against the organisation in respect of the failure specified in the notice.

“296U Demerit points recorded where no objection made

• The Minister must record the prescribed demerit points under section 296S—

  • “(a) If no objection is made within the stated 20-day period; or

  • “(b) If an objection is made by an approved service delivery organisation that is not accompanied by a statement of reasons.

“296V Demerit points recorded where objection made

• “(1) This section applies if—

  • “(a) An objection to the recording of demerit points, accompanied by a statement of reasons, is received from the approved service delivery organisation within the stated 20-day period; and

  • “(b) The Minister does not accept the objection.

  “(2) The Minister may apply to a District Court for an order that the Minister may record the demerit points.

  “(3) The District Court must order the Minister to record the demerit points under section 296S if the Minister establishes on the balance of probabilities that the organisation has not complied with the standards and specifications or the direction to which the notice under section 296T relates.

  “(4) The Court may award costs as if the matter were a criminal matter.

“296W Civil penalty imposed where demerit points recorded

• “(1) As soon as practicable after the end of each financial year, the Minister must calculate the total number of demerit points recorded under section 296S(2) against an approved service delivery organisation during that year.

  “(2) The Minister must advise the organisation as soon as reasonably practicable of the amount of civil penalty payable in respect of the total number of demerit points.

  “(3) The amount of civil penalty payable in respect of specified failures is prescribed in regulations made under section 296ZI.

  “(4) As soon as practicable after the end of each financial year, the Minister must cancel the demerit points recorded against an approved service delivery organisation in respect of that financial year, but the applicable civil penalty is payable despite the cancellation of those demerit points.

“296X Collection of civil penalty

• “(1) The Minister may recover a civil penalty in a court of competent jurisdiction, as if the penalty were a debt due to the Crown.

  “(2) In this case, the penalty includes the costs of the court and, if ordered, the Minister's costs relating to the application.

“296Y Penalties payable into Crown Bank Account

• Every civil penalty under section 296W must be paid into the Crown Bank Account.

“Fees

“296Z Fees

• “(1) An approved service delivery organisation may set fees and charges in respect of functions, duties, and powers performed or exercised by the organisation under an order made under section 296B.

  “(2) Fees may be set at any level as specified by the organisation.

  “(3) This section applies despite anything in this Act or in the Fisheries Act 1983, but does not limit the application of the Commerce Act 1986.

“Information disclosure requirements

“296ZA Regulations relating to information disclosure

• The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

  • “(a) Requiring approved service delivery organisations to make publicly available prescribed financial statements that follow generally accepted accounting principles, including profit and loss statements, balance sheets, and statements of accounting principles:

  • “(b) Requiring approved service delivery organisations to publish, in the prescribed manner, information in relation to the performance and exercise of specified functions, duties, and powers, and prescribing the information that the organisations must make available, which information must include—

    • “(i) Prices, terms, and conditions; and

    • “(ii) Pricing policies and methodologies; and

    • “(iii) Costs; and

    • “(iv) Cost allocation policies and methodologies; and

    • “(v) Performance measures, or information from which performance measures may be derived, or both:

  • “(c) Prescribing the form and manner in which the financial statements required by any regulations made under paragraph (a) must be made available:

  • “(d) Prescribing the form of statutory declaration, and the persons by whom a statutory declaration must be made, for the purposes of section 296ZB(3):

  • “(e) Prescribing the time limits within which the information disclosure required by any regulations made under this section must be made to the public:

  • “(f) Exempting or providing for the exemption of any person or class of persons from all or any of the requirements of any regulations made under this section:

  • “(g) Providing for the revocation of an exemption of any person or class of persons from all or any of the requirements of any regulations made under this section.

“296ZB Information to be supplied to chief executive

• “(1) Every approved service delivery organisation must supply to the chief executive,—

  • “(a) Within 5 working days after the statements and information are first made available, a copy of all statements and information made available to the public under regulations made under section 296ZA; and

  • “(b) Any further statements, reports, agreements, particulars, or other information requested in writing by the chief executive that are reasonably necessary for the purpose of monitoring the organisation's compliance with those regulations.

  “(2) Every approved service delivery organisation to whom a request is made under subsection (1)(b) must comply with the request within 30 days after receiving it, or within such further period as the chief executive may, in any particular case, allow.

  “(3) All statements, reports, agreements, particulars, or information supplied to the chief executive under subsection (1) must be verified by statutory declaration by the persons and in the form prescribed by regulations made under section 296ZA(d).

“296ZC Supply of information relating to business of approved service delivery organisation

• “(1) For the purpose of monitoring an approved service delivery organisation's compliance with regulations made under section 296ZA, standards and specifications, and directions under section 296Q, the Minister may, by notice in writing to the organisation, require the organisation to supply to the Minister specified information, data, and forecasts relating to the business, operation, or management of the organisation, and may require that information to be supplied for specified periods and in specified form.

  “(2) The Minister may revoke, vary, or amend a notice by giving a subsequent notice to the organisation.

  “(3) An approved service delivery organisation commits an offence against this Act if it—

  • “(a) Fails to comply with any requirements of the Minister under this section; or

  • “(b) Supplies information or data that the organisation is required to supply under this section knowing that it is false or misleading in a material particular; or

  • “(c) Knowingly omits any material particular in any information or data that the organisation is required to supply under this section.

  “(4) The penalty on conviction for an offence against subsection (3)(a) is set out in section 252(3).

  “(5) The penalty on conviction for an offence against subsection (3)(b) or (c) is set out in section 252(1).

“296ZD Requirement that information be audited

• “(1) The Minister may, by notice in writing to an approved service delivery organisation, require any information or data that the organisation is required to supply under section 296ZC to be audited by an auditor approved by the Minister.

  “(2) An approved service delivery organisation commits an offence against this Act if it fails to comply with this section.

  “(3) The penalty on conviction for an offence against subsection (2) is set out in section 252(3).

“296ZE Disclosure of information to Minister

• “(1) Any person must disclose to the Minister information relating to the affairs of an approved service delivery organisation if, in the course of or in connection with performing the role of auditor of the organisation, the person forms an opinion that there is a serious problem with the organisation.

  “(2) For the purposes of this Part, a serious problem means the organisation—

  • “(a) Is not operating, or is likely not to operate, in any material respect in accordance with—

    • “(i) The provisions of this Act or the Fisheries Act 1983 under which the organisation performs or exercises its functions, duties, or powers; or

    • “(ii) Any applicable standards and specifications; or

    • “(iii) An applicable direction under section 296Q; or

  • “(b) Is insolvent or likely to become insolvent.

  “(3) For the avoidance of doubt, subsection (1) does not require a person who is an auditor of an approved service delivery organisation to perform or exercise functions, duties, or powers additional to those functions, duties, or powers that the person would ordinarily perform or exercise in the course of performing that role, other than to make disclosure to the Minister as required by subsection (1).

  “(4) This section applies despite any enactment or rule of law, or anything in a contract.

“296ZF Auditor to inform approved service delivery organisation of intention to disclose

• An auditor must, before disclosing information to the Minister under section 296ZE, take reasonable steps to inform the approved service delivery organisation of—

  • “(a) The auditor's intention to disclose the information; and

  • “(b) The nature of the information.

“296ZG Protection of auditors

• “(1) No civil, criminal, or disciplinary proceedings lie against an auditor arising from the disclosure in good faith of information to the Minister under section 296ZE.

  “(2) No person may remove from office, or terminate the contract of appointment of, an auditor merely because of the disclosure in good faith of information to the Minister under section 296ZE.

  “(3) A tribunal, body, or authority having jurisdiction in respect of the professional conduct of an auditor must not make an order against, or do an act in relation to, that auditor in respect of the disclosure.

  “(4) Information received by the Minister under section 296ZE is not admissible in evidence in proceedings against the auditor concerned.

  “(5) Nothing in subsection (4) limits the admissibility of information obtained in any other way.

“296ZH Unique identifiers

• “(1) The purpose of this section is—

  • “(a) To enable approved service delivery organisations to assign to any person specified in section 189 unique identifiers that have been assigned by the chief executive; and

  • “(b) To restrict approved service delivery organisations from using such unique identifiers for purposes other than carrying out the specified functions, duties, or powers transferred to them under section 296B.

  “(2) Despite Information Privacy Principle 12(2) of the Privacy Act 1993, an approved service delivery organisation may assign to any person specified in section 189 any unique identifier assigned to that person by the chief executive.

  “(3) This section does not authorise an approved service delivery organisation to use a unique identifier assigned by the chief executive, except for the purpose of carrying out the specified functions, duties, or powers that have been transferred to that approved service delivery organisation under section 296B.

“296ZI Regulations

• “(1) The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

  • “(a) Specifying those failures to comply with specified standards or specifications, or directions under section 296Q, in respect of which the Minister may record demerit points against an approved service delivery organisation:

  • “(b) Prescribing the number of demerit points to be recorded in respect of specified failures:

  • “(c) Prescribing the amount of civil penalties payable in respect of different amounts or levels of demerit points incurred by an approved service delivery organisation in any financial year.

  “(2) Without limiting subsection (1), regulations made under this section may provide for graduated scales of demerit points and civil penalties.

  “(3) The total amount of civil penalties that may be incurred by an organisation in any financial year, as prescribed by regulations made under this section, may not exceed $500,000.”