256Provisions relating to forfeit property

1. In this section, unless the context otherwise requires,—

   forfeit property means any—forfeit to the Crown under any of sections 255A to 255D

   1. fish and any proceeds from the sale of such fish; or
   2. property used in the commission of the offence; or
   3. quota—

   interest means,—

   1. in the case of quota, an interest in the quota that is recorded on the Quota Register at the time of the forfeiture:
   2. in the case of a foreign vessel, a foreign-owned New Zealand fishing vessel, or a foreign-operated fish carrier,—
      1. ownership; and
      2. an interest, as determined by the Employment Relations Authority or any court, that any fishing crew have in unpaid wages; and
      3. an interest in costs incurred by a third party (other than the employer) to provide for the support and repatriation of foreign crew employed on the vessel:
   3. in the case of other forfeit property, a legal or equitable interest in that forfeit property that existed at the time of the forfeiture; but does not include any interest (other than an interest referred to in paragraph (b)) in a foreign vessel, a foreign-owned New Zealand fishing vessel, or a foreign-operated fish carrier.

2. Where—

3. the forfeiture occurs under any of sections 255B to 255D; and
4. the forfeit property has a total estimated value of $200 or more,—
the chief executive must, within 10 working days after the date of the forfeiture, publicly notify the details of the forfeit property, and the right of any person to apply to the court for relief from the effects of forfeiture.

5. Any person claiming an interest in any forfeit property may, within 35 working days after the date of the forfeiture or within such further period before the property is disposed of as the court may allow, apply to the court for relief from the effect of forfeiture on that interest.

6. Every application under subsection (3) shall contain sufficient information to identify the interest and the property in which it is claimed, and shall include—

7. a full description of the forfeit property in which the interest is claimed, including reference to any registration or serial number; and
8. full details of the interest or interests claimed, including—
   1. whether the interest is legal or equitable; and
   2. whether the interest is by way of security or otherwise; and
   3. if the interest is by way of security, details of the security arrangement and any other property included in that arrangement; and
   4. whether the interest is noted on any register maintained pursuant to statute; and
   5. any other interests in the property known to the applicant; and
10. the applicant's estimate of the value of the forfeit property and of the value of the claimed interest.

11. The court shall hear all applications in respect of the same property together, unless it considers that it would not be in the interests of justice to do so.

12. The court shall, in respect of every application made under subsection (3),—

13. determine the value of the forfeit property, being the amount the property would realise if sold at public auction in New Zealand; and
14. determine the nature, extent, and, if possible, the value of any applicant's interest in the property; and
16. determine the cost to the Ministry of the prosecution of the offence which resulted in the forfeiture, and the seizure, holding, and anticipated cost of disposal of the forfeit property, including the court proceedings in respect of that seizure, holding, and disposal.

17. Having determined the matters specified in subsection (6), the court may, after having regard to—

18. the purpose of this Act; and
19. the effect of the offence from which the forfeiture arose on the aquatic environment from which the fish, aquatic life, or seaweed was taken or in which the vessel was operating; and
20. the effect of the offence from which the forfeiture arose on other fishers (whether commercial or otherwise) fishing in the area or for the stock in respect of which the offence occurred; and
21. the effect of offending of the type from which the forfeiture arose on the relevant aquatic environment; and
22. the effect of offending of the type from which the forfeiture arose on other fishers (whether commercial or otherwise) fishing in the area or for the stock in respect of which the offence occurred; and
23. the social and economic effects on the person who owned the property or quota, and on persons employed by that person, of non-release of the property or quota; and
24. the effect of offending of the type from which the forfeiture arose on fisheries management and administration systems (including the keeping of records and the providing of returns); and
25. the previous offending history (if any) of the person from whose conviction the forfeiture arose; and
26. the economic benefits that accrued or might have accrued to the owners of the property or quota through the commission of the offence; and
27. the prevalence of offending of the type from which the forfeiture arose; and
28. the cost to the Ministry of the prosecution of the offence which resulted in the forfeiture, and the seizure, holding, and anticipated cost of disposal of the property or quota, including the court proceedings in respect of that seizure, holding, and disposal,—
and, subject to subsection (8), make an order or orders providing relief (either in whole or part) from the effect of forfeiture on any of the interests determined under subsection (6).

29. No order shall be made under subsection (7) unless—

30. it is necessary to avoid manifest injustice or to satisfy an interest referred to in paragraph (b)(ii) or (iii) of the definition of interest in subsection (1).

32. Repealed

33. Repealed

34. Without limiting subsection (7), any order under that subsection may order 1 or more of the following:

35. the retention of the forfeit property by the Crown:
36. the return of some or all of the forfeit property to the owner at the time of forfeiture, with or without the prior payment to the Crown of a sum of money:
37. the sale of some or all of the forfeit property, with directions as to the manner of sale and dispersal of proceeds:
38. the delivery of some or all of the forfeit property to a person with an interest in the property, with or without directions as to payment of a sum of money to specified persons (including the Crown) prior to such delivery:
39. the reinstatement (notwithstanding the forfeiture) of any interest that was forfeit or cancelled as a result of a forfeiture.

40. If the court makes an order under subsection (11) that relates to settlement quota, the person taking possession of that quota by order of the court may only dispose of the quota in accordance with sections 161 (except subsection (2)) and 163 of the Maori Fisheries Act 2004, as if he or she were a mandated iwi organisation.

41. This section does not require the Crown to pay, or secure the payment of, any sum of money to any person claiming an interest in forfeit property, other than the net proceeds of sale of forfeit property under a court order made under subsection (7).

42. For the purpose of assisting the court in determining any application for relief, the chief executive and any employee or agent of the Ministry is entitled to appear before the court and be heard.

43. Any forfeiture under any of sections 255A to 255D, or any payment of a sum of money or delivery of property under subsection (7), to persons claiming an interest, shall be in addition to, and not in substitution for, any other penalty that may be imposed by the court or by this Act.