Driftnet Prohibition Act 1991

1: Short Title and commencement
1: This Act may be cited as the Driftnet Prohibition Act 1991.
2: This Act shall come into force on 15 April 1991.
2: Interpretation
In this Act, unless the context otherwise requires,— Convention Convention Area
a: the high seas (not being waters under the fisheries jurisdiction of any State or territory) within the area lying between the latitudes 10 degrees North latitude and 50 degrees South latitude that is eastward of 130 degrees East longitude and westward of 120 degrees West longitude; and
b: all waters under the fisheries jurisdiction of any Party to the Convention that—
i: lie within the area specified in paragraph (a); or
ii: are adjacent to any territory of the Party that is situated wholly or partly within that area Director-General responsible chief executive driftnet
a: either singly or tied or connected together in combination with other nets is more than 1 kilometre in length; and
b: acts by enmeshing, entrapping, or entangling any fish or marine life; and
c: acts by drifting in the water, or on the surface of the water; and
d: does not have attached to it sufficient means of anchoring it to any point of land or the sea bed (irrespective of whether the net has attached to it any means of being attached to any vessel) enforcement officer
a: any officer of the New Zealand Naval Forces of the rank of midshipman or above:
b: any other member of the New Zealand Armed Forces authorised in writing for the time being by the Chief of Defence Force to be an enforcement officer for the purposes of this Act:
c: any Fishery Officer appointed or deemed to have been appointed as such under subsection (1) or subsection (4) of section 76 foreign vessel internal waters of New Zealand section 4 , Contiguous Zone, master Minister New Zealand fisheries waters section 2(1) New Zealand vessel section 2 of the Shipping and Seamen Act 1952 Civil Aviation Regulations 1953 owner take vessel Section 2 Director-General amended 1 July 1995 Ministry of Agriculture and Fisheries (Restructuring) Act 1995 Section 2 internal waters of New Zealand amended 1 August 1996 Territorial Sea and Exclusive Economic Zone Amendment Act 1996
3: Definition of driftnet fishing
For the purposes of this Act, the term driftnet fishing
a: taking fish or marine life with the use of a driftnet:
b: attempting to take fish or marine life with the use of a driftnet:
c: engaging in any other activity which could reasonably be expected to result in the taking of fish or marine life with the use of a driftnet, including searching for and locating fish to be taken by that method:
d: any operations at sea in support of, or in preparation for, any activity described in this definition, including—
i: operations of placing, searching for, or recovering fish-aggregating devices or associated electronic equipment such as radio beacons; and
ii: operations involving the preparation, supply, storage, refrigeration, transhipment, transportation, or processing of any fish or marine life taken with the use of a driftnet:
e: the use of aircraft in support of the activities described in this definition, except for flights in emergencies involving the health or safety of crew members or the safety of a vessel. Prohibitions on driftnet fishing and related activities
4: Prohibition on driftnet fishing in New Zealand fisheries waters
1: No vessel shall be used for driftnet fishing in New Zealand fisheries waters.
2: No person shall engage in driftnet fishing in New Zealand fisheries waters.
5: Prohibition on driftnet fishing in Convention Area
1: No New Zealand vessel shall be used for driftnet fishing in the Convention Area.
2: No New Zealand citizen shall engage in driftnet fishing in the Convention Area.
6: Prohibition of driftnets on vessels
No vessel in New Zealand fisheries waters shall have on board any driftnet.
7: Prohibition on transportation and transhipment
1: No vessel in New Zealand fisheries waters shall be used to transport or tranship, or in an attempt to transport or tranship, any fish or marine life taken using a driftnet.
2: No person in New Zealand fisheries waters shall transport or tranship, or attempt to transport or tranship, any fish or marine life taken using a driftnet.
3: No New Zealand vessel in the Convention Area shall be used to transport or tranship, or in an attempt to transport or tranship, any fish or marine life taken using a driftnet.
4: No New Zealand citizen in the Convention Area shall transport or tranship, or attempt to transport or tranship, any fish or marine life taken using a driftnet.
8: Prohibition on landing
1: No vessel shall be used to land, or in an attempt to land, in New Zealand any fish or marine life taken using a driftnet.
2: No person shall land or attempt to land in New Zealand any fish or marine life taken using a driftnet.
9: Prohibition on processing
No person shall process or attempt to process in New Zealand any fish or marine life taken using a driftnet.
10: Prohibition on visits by driftnet fishing vessels
No foreign vessel that—
a: has on board any driftnet, or is otherwise equipped for driftnet fishing; or
b: has within the preceding 3 months been engaged in driftnet fishing (whether within or outside New Zealand fisheries waters or the Convention Area),— shall enter the internal waters of New Zealand.
11: Prohibition on supplying and provisioning driftnet fishing vessels
1: No vessel shall be used in New Zealand fisheries waters to supply food, fuel, or other goods and services to any vessel engaged or that is to engage in driftnet fishing in New Zealand fisheries waters or the Convention Area.
2: No person shall acquire food, fuel, or other goods and services in New Zealand for the purpose of supply to any vessel engaged or that is to engage in driftnet fishing in New Zealand fisheries waters or the Convention Area.
3: No New Zealand vessel shall be used to supply any fuel, food, or other goods and services to any vessel engaged or that is to engage in driftnet fishing in the Convention Area.
4: No New Zealand citizen shall supply any fuel, food, or other goods and services to any vessel engaged or that is to engage in driftnet fishing in the Convention Area.
5: Nothing in this section shall prevent the supply of such food, fuel, and other goods and services as is necessary to enable a vessel to proceed safely and directly to a port outside New Zealand.
12: Power to deny entry to driftnet fishing vessels and supply vessels
1: Where the Director-General has reasonable grounds to believe that—
a: any foreign vessel—
i: has on board any driftnet, or is otherwise equipped for driftnet fishing; or
ii: has within the preceding 3 months been engaged in driftnet fishing (whether within or outside New Zealand fisheries waters or the Convention Area); or
b: any foreign vessel is to be used to supply any food, fuel, or other goods and services acquired or to be acquired in New Zealand to any vessel engaged or to be engaged in driftnet fishing in New Zealand fisheries waters or the Convention Area,— the Director-General may direct the vessel not to enter the internal waters of New Zealand or, if it has entered the internal waters of New Zealand, to leave those waters.
2: No vessel shall—
a: enter the internal waters of New Zealand in contravention of any direction given under subsection (1); or
b: having entered the internal waters of New Zealand, fail in contravention of any direction given under subsection (1) to leave those waters as soon as is reasonably practicable,— unless the direction is withdrawn by the Director-General under subsection (3)﻿(c).
3: A direction under subsection (1)—
a: shall be notified to the master or owner of the vessel in such manner as may be practicable in the circumstances; and
b: shall, if given otherwise than in writing, be recorded in writing and forwarded to the owner or master of the vessel as soon as is reasonably practicable; and
c: may at any time be withdrawn by the Director-General, upon being satisfied that the vessel is not engaged or to engage in driftnet fishing, or is not to supply vessels engaged or to engage in driftnet fishing in New Zealand fisheries waters or the Convention Area.
4: Nothing in this section shall prevent a vessel from entering or remaining in the internal waters of New Zealand for such period as is necessary for the purposes of obtaining such food, fuel, and other goods and services necessary to enable it to proceed safely and directly to a port outside New Zealand. Powers of enforcement officers, etc
13: Powers of search
1: An enforcement officer may, for the purpose of enforcing the provisions of this Act,—
a: stop and go on board any—
i: vessel that is in New Zealand fisheries waters; or
ii: New Zealand vessel that is in the Convention Area,— and inspect and examine the vessel, including any machinery, equipment, or other property or articles on board the vessel; and
b: where there is reasonable cause to believe that any offence is being or has been committed against this Act by or from or in relation to that vessel,—
i: require the owner or the master or any member of the crew of the vessel to produce any certificate, official logbook, or other document in the possession or under the control of the owner, master, or crew member that relates to the vessel:
ii: require the master to produce any certificate of registration, charter, or other document, or to provide other information relating to the owner of the vessel:
iii: take copies of any record or document referred to in subparagraph (i) or subparagraph (ii), where the record or document is relevant to a suspected offence against this Act:
iv: require the master of the vessel, or any other person, to give any explanation or information concerning that vessel, or any fish, marine life, fishing method, machinery, equipment, records or documents, or other article or thing on board or connected with the vessel.
2: An enforcement officer may, where the officer has reasonable cause to believe that any offence is being or has been committed against this Act, and that any fish, marine life, net, equipment, or other thing to which any suspected offence against this Act relates is being concealed or is located in any premises (including any vessel or vehicle, but not including any private dwellinghouse),—
a: stop (where appropriate), enter, and inspect the premises, and examine (by opening where necessary) any property, record, document, or other article therein:
b: require any person to give any explanation or information concerning the premises, or any fish, marine life, property, record, document, or other article therein:
c: take copies of any record or document referred to in paragraph (a), where the record or document is relevant to a suspected offence against this Act.
3: Nothing in subsection (1)﻿(b)﻿(iv) or subsection (2)﻿(b) requires a person to answer any question where to do so would tend to incriminate that person.
3A: The provisions of subparts 1 4 5 7 9 10
4: An enforcement officer may, for the purpose of exercising any power under this section to take copies of any record or document, take possession of and remove from the place where it is kept, for such period of time as is reasonable in the circumstances, any such record or document. Section 13(3A) inserted 1 October 2012 section 235 Search and Surveillance Act 2012
14: Powers of arrest
1: Where an enforcement officer—
a: has reasonable cause to believe that any person is committing or has committed an offence against this Act; and
b: considers that there is a real risk that the person may not be able to be served with proceedings under this Act, or may not appear to answer any such proceedings,— the enforcement officer may arrest that person.
2: Where an enforcement officer arrests a person pursuant to subsection (1),—
a: the officer shall cause the person to be delivered into the custody of a constable as soon as practicable; and
b: if the person so delivered into custody is issued with a summons pursuant to sections 28 to 30 section 31 Section 14(2)﻿(b) replaced 1 July 2013 section 413 Criminal Procedure Act 2011
15: Powers of seizure
1: An enforcement officer may seize—
a: any fish or marine life that the officer believes on reasonable grounds is being taken or has been taken, transported, transhipped, landed, or processed in contravention of this Act:
b: any vessel, vehicle, fishing gear, implement, appliance, material, container, goods, or equipment that the officer believes on reasonable grounds is being or has been or is intended to be used in the commission of an offence against any of sections 4 to 10
c: any goods that the officer believes on reasonable grounds have been acquired or are to be supplied in contravention of section 11
2: Subject to section 18 subparts 1 5 6 7 9 10 Section 15(2) inserted 1 October 2012 section 236 Search and Surveillance Act 2012
16: Custody of property seized
Section 16 repealed 1 October 2012 section 237 Search and Surveillance Act 2012
17: Release of property by Director-General
Section 17 repealed 1 October 2012 section 237 Search and Surveillance Act 2012
18: Spoilage or deterioration of fish, etc, seized
1: Where, in the opinion of the Director-General, any fish, marine life, or other article seized pursuant to section 15
2: The Crown shall not be liable to any person for any spoilage or deterioration in the quality of any fish or marine life seized under section 15
19: Disposal of property where ownership cannot be ascertained
Section 19 repealed 1 October 2012 section 237 Search and Surveillance Act 2012
20: Release of property by court
Section 20 repealed 1 October 2012 section 237 Search and Surveillance Act 2012
21: Final release of seized property
Section 21 repealed 1 October 2012 section 237 Search and Surveillance Act 2012
22: Persons assisting enforcement officer
Section 22 repealed 1 October 2012 section 237 Search and Surveillance Act 2012
23: Protection of enforcement officers and assistants from liability
1: Any enforcement officer who does, or omits to do, any act in pursuance or intended pursuance of this Act, and any person giving assistance to an enforcement officer when called upon to do so under section 22
2: The Crown shall not be held directly or indirectly liable for any such act or omission or assistance, unless the enforcement officer or person concerned would himself or herself incur liability for the act or omission or assistance.
24: Enforcement officer to produce evidence of authority to act
Section 24 repealed 1 October 2012 section 238 Search and Surveillance Act 2012 Proceedings for offences, etc
25: Offences
1: Every person commits an offence against this Act, and is liable on conviction to a fine not exceeding $250,000, who—
a: is the owner or master of any vessel—
i: that is used in contravention of any of sections 4(1) 5(1) 7(1), 7(3) 8(1)
ii: that has a driftnet on board in contravention of section 6
iii: that enters the internal waters of New Zealand in contravention of section 10 section 12(2)
b: contravenes section 9
2: Every person commits an offence against this Act, and is liable on conviction to a fine not exceeding $100,000, who—
a: contravenes any of sections 4(2) 5(2) 7(2), 7(4) 8(2)
b: is the owner or master of any vessel that is used in contravention of section 11(1) section 11(3)
3: Every person commits an offence against this Act, and is liable on conviction to a fine not exceeding $50,000, who contravenes section 11(2) or section 11(4)
4: Every person commits an offence against this Act, and is liable on conviction to a fine not exceeding $20,000, who—
a: resists or obstructs, or incites or encourages any other person to resist or obstruct, any enforcement officer while in the execution of the enforcement officer's powers or duties, or any person lawfully assisting the enforcement officer; or
b: fails without reasonable cause to comply with the requirements of any enforcement officer; or
c: furnishes to any enforcement officer any particulars knowing that those particulars are false or misleading in any material respect, or being reckless as to whether those particulars are so false or misleading.
26: Proceedings for offences
1: Any offence against this Act that is committed within New Zealand fisheries waters, or within the Convention Area by a New Zealand citizen or by use of a New Zealand vessel, shall be deemed to have been committed in New Zealand.
2:
3: Despite anything to the contrary in section 25 Section 26(2) repealed 1 July 2013 section 413 Criminal Procedure Act 2011 Section 26(3) replaced 1 July 2013 section 413 Criminal Procedure Act 2011
27: Strict liability
In any prosecution for an offence against any of sections 4 to 12
28: Defences
1: In any proceedings for an offence against this Act it shall, subject to subsection (2), be a defence if—
a: in the case of an offence against section 4 section 5
i: the defendant was engaged, or the vessel was used, only in any activity or operation referred to in paragraphs (c) to (e) of the definition of the term driftnet fishing in section 3
ii: the defendant did not know, and could not with the exercise of reasonable diligence have ascertained, that the activity or operation was in support of or preparation for or otherwise related to the taking of fish or marine life by use of a driftnet:
b: in the case of an offence against section 6
c: in the case of an offence against section 7 section 8 section 9
i: the defendant satisfies the court that the defendant did not know, and could not with the exercise of reasonable diligence have ascertained, that the fish or marine life to which the offence relates was taken using a driftnet; or
ii: the fish or marine life to which the offence relates was preserved in containers in a country other than New Zealand; or
iii: the transportation, transhipment, landing, or processing of the fish or marine life to which the offence relates was conducted at the direction or request of an enforcement officer, or was conducted in respect of fish or marine life disposed of by the Director-General or Minister pursuant to section 18 section 19 section 30
d: in the case of an offence against section 10
e: in the case of an offence against section 11
2: Where the owner or master of a vessel is charged with an offence specified in subsection (1)﻿(a) or subsection (2)﻿(b) of section 25
3: In any proceedings for an offence against this Act, it shall be a defence if the defendant proves that the act or omission constituting the offence took place in circumstances of stress or emergency and was necessary for the preservation, protection, or maintenance of human life.
29: Evidence in proceedings
1: In any proceedings for an offence against this Act, the following certificates or documents shall be admissible in evidence and shall, in the absence of proof to the contrary, be sufficient evidence of the matters stated in the certificate or of the contents of the document, as the case may require:
a: a certificate purporting to be signed by the Minister of Foreign Affairs and stating—
i: that any State, country, or territory specified in the certificate is a Party to the Convention; or
ii: that an area specified in the certificate is within the Convention Area:
b: a certificate purporting to be signed by the Director-General or any officer authorised by the Director-General for that purpose to the effect that, on a date specified in the certificate,—
i: a vessel specified in the certificate was or was not registered under section 57
ii: a person specified in the certificate was or was not the owner of a registered fishing vessel specified in the certificate; or
iii: a direction was given under section 12(1)
c: any—
i: certificate purporting to be signed by the Registrar of Ships appointed under the Shipping and Seamen Act 1952
ii: copy of a certificate of registry issued under the Shipping and Seamen Act 1952
d: any—
i: certificate purporting to be signed by a Chief Surveyor appointed under the Survey Act 1986 chief executive of Land Information New Zealand
ii: map, plan, or other such document purporting to be certified as true by a Chief Surveyor or by the chief executive of Land Information New Zealand
e: any certificate purporting to be signed by a member of the Armed Forces within the meaning of the Defence Act 1990
i: the position of any vessel at a date and time specified in the certificate; or
ii: that the member of the Armed Forces is satisfied that the equipment used to determine the position of any vessel was in proper working order and that the equipment was accurate within specifications detailed in the certificate.
2: A certificate purporting to be signed by a person referred to in subsection (1) may relate to any 1 or more of the matters with respect to which that person has authority to certify.
3: The production of any certificate or copy of any document for the purposes of this section purporting to be signed by any person authorised under this section to sign it shall be prima facie evidence of the certificate or copy without proof of the signature of the person purporting to have signed it.
4: Any certificate (not being a certified copy of a document) referred to in subsection (1) shall be admissible in evidence only if—
a: at least 14 days before the hearing at which the certificate is to be tendered, a copy of that certificate is served, by or on behalf of the prosecutor, on the defendant or the defendant's agent or counsel, and that person is at the same time informed in writing that the prosecutor does not propose to call the person who signed the certificate as a witness at the hearing; and
b: the court has not, on the application of the defendant made not less than 7 days before the hearing, ordered, not less than 4 days before the hearing (or such lesser period as the court in the special circumstances of the case thinks fit), that the certificate should not be admissible as evidence in the proceedings.
5: Any copy of a record or other document taken by an enforcement officer under section 13
6: A copy of a record or document referred to in subsection (5) (including a copy of such a copy) shall be admissible in evidence only if—
a: the prosecutor or an agent of the prosecutor serves on the defendant, or the defendant's agent or counsel, not less than 14 days before the hearing at which it is proposed to tender the copy in evidence,—
i: notice of the prosecutor's intention to tender the copy in evidence; and
ii: a copy of the copy to be so tendered; and
b: the court has not, on the application of the defendant made not less than 4 days before the hearing (or such lesser period as the court in the special circumstances of the case thinks fit), ordered that the copy should not be admissible as evidence in the proceedings.
7: The court shall not make an order under subsection (4) or subsection (6) unless it is satisfied that there is a reasonable doubt as to the accuracy or validity of the relevant certificate or copy. Section 29(1)﻿(d)﻿(i) amended 15 November 2000 section 3 Driftnet Prohibition Amendment Act 2000 Section 29(1)﻿(d)﻿(ii) amended 15 November 2000 section 3 Driftnet Prohibition Amendment Act 2000
30: Forfeiture of property on conviction
1: On the conviction of any person for an offence against any of sections 4 to 9
a: any vessel used in respect of the commission of the offence; and
b: any vehicle or other conveyance, fishing gear, implement, appliance, material, container, goods, or equipment used in respect of the commission of the offence; and
c: any fish or marine life in respect of which the offence was committed— shall be forfeit to the Crown, and shall be disposed of in such manner as the Minister thinks fit.
2: On the conviction of any person for an offence against section 11
3: Nothing in section 9 section 18 section 19
31: Revocations
The following regulations are hereby revoked:
a: the Exclusive Economic Zone (Driftnet) Regulations 1989 (SR 1989/197)
b: the Fisheries (Driftnet) Regulations 1989 (SR 1989/198)