78Catch in excess of over-fishing thresholds

1. This section applies where, following the calculation referred to in section 76(1A),—

2. a commercial fisher's reported catch for a stock exceeds the commercial fisher's annual catch entitlement for the stock; and
3. that excess is equal to or greater than the over-fishing threshold for the stock, and, where a tolerance level applies to the stock, is greater than that tolerance level.

4. In such a case the current fishing permit of the commercial fisher and of any person included with the commercial fisher under subsection (11), and also any permit subsequently issued to the commercial fisher or included person, are each to be treated as containing a condition prohibiting the taking of any fish, aquatic life, or seaweed in the geographic area that is the quota management area for the stock concerned.

5. The condition takes effect as from the close of the month in which the calculation referred to in section 76(1A) is done.

6. The chief executive must—

7. notify the imposition of the condition under subsection (2) to the commercial fisher concerned and any included person of whom the chief executive is aware; and
8. record on the Permit Register details of the imposition of the condition,—
but any delay or failure to give that notification or make that record does not affect the imposition of the condition.

9. A commercial fisher who has requested a review under section 80(2) or lodged an appeal under section 80(6) may, pending determination of the review or appeal, apply to the District Court for an order removing or amending a condition imposed under this section, and the court may make such an order subject to such sureties and conditions as the court may specify.

10. Despite subsection (2), the chief executive may—

11. approve the taking of fish, aquatic life, or seaweed in an area by a person who would otherwise be subject to the condition imposed by subsection (2); and
12. impose as part of the approval any conditions that he or she considers necessary to reduce the risk of the person taking the stock for which the over-fishing threshold was exceeded.

13. Conditions imposed under subsection (6) 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.

14. No person may take any fish, aquatic life, or seaweed in contravention of a condition imposed by subsection (2) unless—

15. the person has obtained the prior approval of the chief executive to take fish, aquatic life, or seaweed in that area; and
16. the taking is in accordance with any conditions imposed by the chief executive.

17. Conditions imposed by subsection (2) or under subsection (6) cease to apply—

18. when the commercial fisher referred to in subsection (1) 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
19. at the close of the relevant fishing year,—
whichever happens first.

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

21. For the purposes of subsection (2), a person or entity is to be treated as a person included with the commercial fisher if the person or entity is—

22. a subsidiary of the commercial fisher within the meaning of section 5 of the Companies Act 1993; or
23. a company of which the commercial fisher is a subsidiary within the meaning of section 5 of the Companies Act 1993; or
24. a partnership or unincorporated joint venture that would be a subsidiary of the commercial fisher, or of which the commercial fisher would be a subsidiary, if the partnership or joint venture were incorporated as a company with shareholdings corresponding to the interests, including returns, of the partners in the partnership or participants in the joint venture.

25. Despite subsection (11),—

26. Te Ohu Kai Moana Trustee Limited, a mandated iwi organisation, or members of an iwi, are not to be regarded as being included with any other person, whether or not that person is a mandated iwi organisation, merely because any of them has the status of being—
    1. a beneficiary or income shareholder of Aotearoa Fisheries Limited; or
    2. a beneficiary of—
       1. Te Putea Whakatupu Trust; or
       2. Te Wai Maori Trust; or
       3. Te Ohu Kai Moana; and
27. Aotearoa Fisheries Limited is not to be regarded as being included with any other person merely because the other person holds, or benefits from, income shares in Aotearoa Fisheries Limited; and
28. no person is regarded as being included with another person merely because either or both of those persons would be included with Te Ohu Kai Moana Trustee Limited but for paragraph (a); and
29. no bank registered under the Banking (Prudential Supervision) Act 1989 is to be regarded as being included with any other person merely because the bank has, in the ordinary course of its business as a financier, been granted any interest in quota owned by that person.