Fisheries Amendment Bill

Members, we come now to the Fisheries Amendment Bill. We come first to Part 1, this is the debate on clauses 4 to 26, “Substantive provisions”. The question is that Part 1 stand part.

The background—no; I should start with what the main points of this bill are. This legislation provides a framework for the introduction of new technologies that weren’t available when the quota management system was developed, namely the use of cameras on boats to monitor fishing practice when you don’t have a physical fisheries observer on board. It’s obviously less costly to have automated technologies doing that surveillance, or checking, if you like, than it is to have real people as observers.

But I want to just spend a little bit of time on why this has come about. Back in 2016, there was a furore about some reports that had been held by the fisheries division of the Ministry for Primary Industries (MPI) for a number of years and had never been released. Those reports were titled Operation Achilles and Operation Hippocamp. Those reports had video footage and/or other evidence of some concerning practices as sea, where fishers were discarding significant quantities of fish. Some of that is called high-grading, where the fishers know that the best return they can get on a fish sold is of a particular size, and a fish that might be smaller or a fish that might be bigger is less valuable. Given that they wanted to maximise their returns and minimise their quota costs, there was high-grading going on where quantities of fish were being discarded.

There were also complicated rules for different species of fish, which were complex for fishers to comply with, with different rules relating to whether fish could be legally returned to sea applying to some species, and different rules to others, and different minimum sizes for different fish.

Prior to the time of the release of these two reports which were first released by third parties who had somehow obtained copies of them, there was also a study that had been conducted—led by the University of British Columbia in cooperation with the University of Auckland and academics from elsewhere—which had reconstructed the theoretical population of our fisheries, based on fish returns. That report concluded that the return of fish was irreconcilable with the distribution of a fish population, in terms of size. So there was already a controversy amongst some of the academics in this area that suggested that there was substantial under-reporting of actual fish caught in New Zealand, much of which was being discarded through high-grading or illegal forms of throwing fish back, generally dead, and illegal forms of discard, the quantity of which were not well known.

The Government of the day, which was the National Government, were surprised, as we in Opposition were at the time, as to the scale of what was being suggested was occurring. The scale of it is still disputed. The fishing industry say that the study by the University of Auckland and others was exaggerated and that the level of discards was not as high as that asserts. There is a contrary viewpoint where those people say that the science backs their view of what they said was occurring. Notwithstanding that controversy as to the amount, there was a general agreement that something untoward was happening.

As a consequence of controversies—and there was a lot of media coverage about it at the time—the Hon Nathan Guy, as the then Minister of Fisheries, asked for an inquiry by the former Solicitor-General Mike Heron—now KC; then QC. He conducted an inquiry into these events. He found that there had been some mistakes made within the fisheries division of MPI and that they were wrong to have gathered this information but not used it for enforcement reasons. Such was the heat around the issue that the then National Government said, “Look, we’ve got to clean this up. It’s not good for our international reputation. ‘Brand New Zealand’ underpins the value that we get for the goods that we sell across the primary sector.”, and they proposed the adoption of cameras on boats so that we could have some real scrutiny as to what has been happening at sea.

That, essentially, is the reason behind the core of this bill, which is to enable cameras on boats and the companion rule that says that, with some exceptions, you shouldn’t be able to discard fish; you should try to avoid catching the fish that are not valuable, and if you start catching lots of little fish, you should move on to where you’re catching the bigger fish, or you should use a fishing technique that prevents the catching of those little fish. So the rules have been changed to require all fish that are caught to be counted against quota, with some limited exceptions which will be specified in regulation. All fish that are caught are to be landed.

In response to both the better scrutiny that we have through those two measures, we can then move to a more moderate penalties regime—the current penalties regime being designed to heavily discourage illegal practice because it was so hard to find, and when it was found on those rare occasions, the law came down very heavily.

As a consequence of these better techniques that we will now have, we can introduce an infringement regime and also a demerit-points scheme which is much less Draconian and reflects can be used by fisheries officers using their prosecutorial discretion to use an appropriate remedy, rather than having to take people to court for prosecutions that could have disproportionate response.

I know the issue of within-year adjustments to take will come up, and I’m not dodging that issue. I’m sure it will be the focus of the debate, and I’m happy to engage in that debate as to why the pre-set decision rule is not proceeding at this stage and why we’ll put that out again for another round of consultation, if we do proceed with it.

But those are the main reasons for this amendment bill.

Thank you, Madam Chair, and thank you, Minister Parker, for the opportunity to discuss this piece of legislation. Clauses 13 and 14, amending section 72 and inserting new section 72A, on the dumping of prohibited fish and landings and discard rules, as asserted in the legislation speak to 50 fewer or more fish, sir?

💬 Hon David Parker: Yeah.

I’m trying to reconcile that. I’ve been fishing as a recreational fisherman for 25 years, and worked alongside those that are commercial fishermen with set nets. They’re telling me this as proposed is nonsensical. Now, just to clarify why I’ve made that statement: mid-water fish. If you want to take the example of yellow-eye mullet and/or kahawai, they both sit in the same pressure zones in the ocean. Quite often, yellow-eye mullet are fished for bait fish by commercial fisherman. Inadvertently, they also catch a lot of kahawai. How can you differentiate between species in mid-water fishing, as an example? This is just one example, and we’ve got several. When the fisheries industry has gone from a six-inch mesh to a five—sorry, a four to a five to a six, changed from a diamond to a square. They have spent decades fine-tuning lead lines, weight lines, cork lines, so that these nets are falling into a certain pressure zone in the water, setting at certain tide heights, to alleviate this.

Now, your officials have said—and I have a lot of respect for the officials; they’ve worked very, very hard and are very collegial. But they couldn’t answer this. When they said that they were putting the squeeze on the industry to innovate, they couldn’t tell us what innovation looked like. Now, that’s one example, Minister, that I’ve given you, where, thus far, there is no technology outside of recording what these people are catching. And this is the question I have for you: how do you reconcile that with a coastal fisherman who is catching multiple coastal reef fish, which is very, very different from oceanic blue water fleets, with limited technology at their disposal? How do you reconcile that, when they’re going to be met with a prosecutorial reality that treats 50 anchovies—gracious me, sprats—like 50 kingfish?

Well, if they are sprats, they probably won’t be caught in a net. In respect of the underlying ethos of this legislation, we want people to land what they catch, because generally what is thrown back is dead. Where fishing techniques enable the bycatch to be released alive, there will be regulations promulgated to allow the release of that bycatch in those situations. And there are new mid-water haul techniques that are bringing up fish in a live state, in a vessel of water, which is expected to have a better chance of the survival of the fish that are released, and so you can see that exceptions are likely to be made for that. But where the fish is dead, the intention is that they be landed, and that’s for the reasons that I’ve previously outlined.

Now, there is, as the member Mark Cameron rightly observes, an unavoidable, small level of bycatch that we are not so concerned about. Where you set that level is always going to be somewhat arbitrary, and the advice from officials was to set that at 50 fish. Obviously, the member is correct that if it was krill or some other tiny species like that, relative to a tuna, it is less significant. We did have discussion about whether we should have different limits for different fish species, but we thought that that would be too confusing for people and hard for them to comply with the law, because they wouldn’t necessarily be able to remember the different rules.

In respect of where people do inadvertently breach something in a very minor way, of course, the authorities always have a discretion as to whether they choose to enforce the law through the prosecutorial discretion that the Fisheries New Zealand prosecutorial arm has, just as the Police or other agencies have a discretion as to whether they strictly enforce the law.

Thank you, Madam Chair. I appreciate the Minister’s forthright start. Clearly we have made the point, pre-dinner break, with some force, and now’s the time for perhaps more of a forensic conversation with the Minister around elements of his proposed Supplementary Order Papers (SOPs).

The Minister would be very aware, because he kept a very close eye on proceedings of the Primary Production Committee, of the scale of the perspectives that were put in front of the committee. The effort that the committee members, with officials, went to to try and get the balance right—noting, as I did in this morning’s contribution, that at times the sector presented itself as the most fragmented in New Zealand primary industries, frankly; every participant holding a view on the primacy of their view and the inadequacy of others. It made for challenging work as a select committee.

But one of the areas that was a consistent conversation and focus and, I would argue, had very strong committee support, was the pre-set decision rules framework. And it comes with significant surprise to us that the scale of the changes—as was discussed earlier, the Minister ultimately has a right to change whatever he or she wants at an SOP stage, but to turn up at such a late stage, Minister, and remove the entire section with respect to pre-set decision rules seems an extraordinary response.

Minister, your response, pre-dinner, saying, “Well, look, it’s only a small portion in terms of pages to the larger bill”, I don’t think actually reflects in good faith the contribution of the select committee or indeed the various perspectives that have been brought to this issue by stakeholders through the select committee. As he notes in his thorough contributions to date, the genesis of the concern around not only the landing and discards, that we’ll talk to shortly, but also the important part of creating some flexibility and some certainty for sector participants with the pre-set decision rules. So my first question is, can he please outline to the committee—his own side as much as ours, I suspect—why we now have SOP 257 that amends the bill by deleting all the provisions relating to pre-set decision rules?

Thank you for that question. The Fisheries Act runs to 670 pages. This amendment bill runs to, I think it was 48—what did I say before dinner? Yeah, 48 pages. These clauses, 4 to 12—8 clauses that, if the Supplementary Order Paper passes, we’re removing from the amendment bill—are about five or six pages long. The reason why I’ve reached the view that it’s unwise to proceed with this at this stage is not political. It’s because I’m trying to do the right thing, including rebuild trust in the fisheries management system. I think I’ve already outlined to the committee the parlous state of trust in the fisheries management system that led to the changes that we’ve got, to cameras on boats and discard rules. I think it’s fair to say that as a consequence of that—and some other problems that we’ve had with some fish stocks that are very important to New Zealand populations including rock lobster, snapper populations, and tarakihi—there is a level of distrust in society about the decisions that have been made historically in respect of some fisheries issues.

I thought, and I like to think, that through these increased transparency processes and the openness that we try to apply to our approaching of sustainability rounds, that we were making progress in rebuilding the trust that has been undermined in recent years. Because I accept what the member says, that there is a considerable antagonism between recreational and commercial interests, in particular, and there’s also complexity around other interests, including customary interests, that are also important.

I had regular discussions with my select committee members during the passage of this bill, and I was supportive of the amendments that were proposed by the select committee, which tried to deal with the concerns that were expressed by many submitters that the processes that were proposed for the pre-set decision rules to allow a Minister without further public consultation to change an amount of an allowable catch within a fishing season. I hoped that with the amendments that were made by the select committee that the issue would settle down and that the concern that had been expressed by submitters that was recorded by the Hon Eugenie Sage in the Green Party minority view would be assuaged by the changes that were made. But it’s pretty apparent that since that time it hasn’t settled down, and that there is a deep suspicion amongst some people that allowing the Minister, on the advice of the Ministry, to change an allowance for commercial fishing within a season is, from their point of view, a backward step.

Now, I would make the observation that there are already two sustainability rounds a year at which there can be a change to the total allowable commercial catch, and that the finer-grained changes that currently are proposed in the version of the bill that’s in the Chamber at the moment, but that we are proposing to remove, really are at the margins, and I haven’t actually been given an example of where we would have recently used the power. So when I drilled into it with officials after the report back of select committee, I wasn’t satisfied that this was a necessary intervention in a really practical way, and I could see that it was concerning to people who still have a distrust of other sectors, and therefore I thought it was an unwise thing to proceed with. From their point of view, people who are distrustful of the system like the fact that there is public input in decisions that change harvest levels.

Thank you, Madam Chair. A couple of comments in response and questions to the Minister on that. I can’t see how he can possibly see pulling the pre-set decision rules framework in the 11th hour as part of a strategy to rebuild trust.

Secondly, this bill, as you would imagine, was part of the conversations that I participated in last Thursday at the 30th anniversary of the iwi fisheries, and the elements of having a pre-set decision framework were strongly supported. So I am interested to understand what has happened in a week that has meant that the Minister, in his own words, says that he now has limited confidence that this is an intervention that will work. And Minister, in particular, I contrast your comments now with your Cabinet paper that you took to Cabinet to support this bill, paragraph 31, saying that pre-set decision rules “will support more responsive decision-making, improve the speed of decisions, provide greater certainty and result in improvements to setting catch levels and other sustainability measures over time.” And this is in paragraph 34 of your Cabinet paper, Minister: “Amending the Fisheries Act to include pre-set decision rules in addition to these existing mechanisms will provide a tool to strengthen our response to changes in the status of our fisheries and better achieve our sustainability outcomes.”

Minister, this has been something that you have been very aware of, that you have helped facilitate the architecture of for your bill, had comfort to introduce it, it was part of a select committee report-back, it was part of our speech this morning, when we were yesterday, in terms of the second reading, and here you are, saying, “Well, actually, no, I don’t support it, don’t see the need for the intervention, and I’m pulling it in its entirety from the bill.” How can you align what you’ve just said with your advice to your Cabinet colleagues?

I actually didn’t say in my earlier contributions that it couldn’t work, I said that it’s not a significant measure in terms of the overall management of the fisheries resource relative to the other parts of the Act, noting that we already have two sustainability rounds a year. What I said was that rather than—my hope was that we would be carrying people, that this was a non-controversial thing to do that would improve outcomes. We haven’t satisfied people, and I thought the Hon Eugenie Sage minority report captured their concern in a fair, summarised way, which is there are a significant number of people—perhaps on the basis of the experience in yesteryear, which might not be fair to carry that forward now, but that’s how people feel; it’s what they believe. They don’t think that we should be conferring more powers on the Minister or the department to advise the Minister to have a within-season adjustment without public input on the actual change that is being proposed.

Thank you, Madam Chair, and can I thank the Minister for his, as always, very thoughtful contribution. I just want to put it on record, because I have been a bit concerned by some of the comments made by National members, that the Primary Production Committee did not unanimously support pre-set decision rules. There was not unanimity in the submissions around pre-set decision rules. There was a lot of concern that came through in a number of submissions about how the regime would work. And there were comments made in the submission of the Deep Sea Conservation Coalition, for example, about avoiding committing to a management regime with insufficient detail and consultation to judge its effectiveness through these pre-set decision rules. There was a real concern about the fact that it would really embed a focus on single stock management, when a lot of the desire in the environmental sector and amongst recreational fishers is to move to ecosystem based management, but pre-set decision rules wouldn’t do that.

There was also a lot of concern that the way they would operate had not been well consulted on with stakeholders. And, as the Minister has noted, the Prime Minister’s Chief Science Advisor, in her report which Todd Muller talked about as well this morning, this lack of trust across the sector is increased if you don’t have transparency in decision making. So if you have a decision-making tool where the public cannot have a say, where it’s done behind closed doors, then there will be increased distrust. And that distrust of the Ministry for Primary Industries and Fisheries New Zealand is partly a result of things like Operation Hippocamp and Achilles and it’s partly because there is a strong view that the ministry has been captured by the fishing industry. I acknowledge all of the mahi of officials, but that perception exists and, if you move to a less transparent decision-making mode, you’re only going to embed that because things happen that are not in the light of day.

The whole move to put cameras in place is taking a longer time than was initially anticipated when it was first proposed. There is a lot in this bill that can take up the time of officials and the sector to improve fisheries management without doing the pre-set decision rules, and there’s always the opportunity for the Minister or a future Minister to go out, do more consultation, and consider a mechanism in future. But the question I wanted to ask the Minister was that concerns also came through in submissions around the harvest strategy standard 2008, which was overdue for review in 2013. As a result of setting the pre-set decision rules aside in the bill, is there any intention to actually review that and update it and bring it more in line with an ecosystem-based management approach?

Thank you, Madam Chair. The member is right that the harvest strategy does need a refresh. Apart from anything else, litigation in respect of the terekee or of the terakahi decision—tarakihi decision—

💬 Mark Cameron: “Terekee”!

“Terekee”—ha, ha! Sorry about my pronunciation; I always get that wrong. There was a discovery that there’s actually an error in it and, even after all these years, it’s only just been noticed through the litigation that Forest & Bird took last year in respect of the decision that was overturned. That decision overturning the decision is itself under appeal. So we await the decision of a higher court in that regard. But yes, the harvest strategy will be reviewed. It’s not a matter of prime urgency, but it is the intention of the ministry to do that.

Can I say some things in defence of the ministry? Because I don’t want to leave the impression that I’m distrustful of the ministry. My experiences of the ministry have been very good and I find them open. One of the things that I have asked of the ministry is that we actually own the past in respect of Hippocamp and Achilles, and that we respond to it, as we are now, in order to build trust between the ministry and different aspects of the fishing sectors, including the fishing industry but also the recreational and customary sectors.

I find the ministry responsive to that and I will soon be turning a page myself to say: look, we’ve dealt with those issues, we now have transparency via cameras on boats, and we’ve learnt the lessons of the past; we can move on and build levels of trust. But my judgment was that if we persisted with the pre-set decision rules, we would actually be taking ourselves backwards in that regard. And that’s why, for what I think is a relatively tangential part of the fisheries management system, I’m proposing, through that Supplementary Order Paper, that we pull it from the bill. That doesn’t mean to say, as the member Eugenie Sage has already indicated, that it can’t come back and we can’t work this issue through and try and engender a bit more support for it, maybe have a few more safeguards or some oversights in it, but at the moment we’re not proposing to push it through.

Thank you, Madam Chair. Minister, can I please bring your attention back to new section 72A(2)(c), in clause 14: “require a stock or species to be returned to or abandoned in the sea or other waters from which it was taken if the Minister is satisfied that the return or abandonment is for a biological, a fisheries management, or an ecosystem purpose”.

Well, if I may—going back to my previous remarks about unwanted bycatch with a very low monetised value—just very quickly, we heard from submitters. They were talking about having potentially no licensed fish receivers and that landing unwanted bycatch of such a low monetised value was often as low as 30c in the kilogram, and yet returns, in terms of equalising their income, were $1 per kilo. So they’re going, effectively, backwards.

Can you see that it is almost contradictory language when it’s talking to, essentially, the health of the ecosystem, and yet we’ve got bait fish that are potentially deck wash considered caught and, by virtue, have to be landed and—because there’s no monetised value, there’s no market to be bought back—potentially end up in a landfill. Would the Minister consider giving some consideration to my Supplementary Order Paper 256, which speaks to having bait fish, or very common fish, removed or excluded in this list, given that they have such a low monetised value and they’re caught in numerous quantities quite often as unwanted bycatch. And you see this all the time.

Do you want to speak to that ecological sustainability aspect in that piece please?

I have only been overseas once in the last few years, as a consequence of COVID, but that one occasion was as fisheries Minister. I went to a conference in Portugal that the Ministry of Foreign Affairs and Trade recommended that we attend. At the end of it, I popped up to Iceland because Iceland has a reputation that is lauded by some as being so far ahead of New Zealand in respect of fisheries management. I’m pleased I went there, because I discovered that in some areas they do a bit better than us but in other areas they’re pretty much identical to us. In the areas where they use technology a bit more efficiently than us, they have some advantages of fewer fish species to deal with, which therefore enables greater automation than is possible when you have as many species of fish as we catch. I was also pleased to learn that their technology providers are the same technology providers that our major fishing industry participants use to automate their processes.

One of the other things I discovered, though, was that they have a very similar fisheries management system. They run a quota management system, and they have the same challenges in respect of discards. In their case, they didn’t discover it through Operation Hippocamp or Achilles some years ago; they’ve just discovered it in the last year through the use of drones. I saw the drone footage there, and they’ve got the same issue of illegal high grading and discards in the Icelandic system that we’re trying to deal with in New Zealand.

That is the greater ill here: that we have quite substantial quantities, as evidenced by Hippocamp and Achilles, having been discarded to the point that the prior Government and the current Government thought there was a need to address the issue. How do you address it? Well, the advice from officials, which the Government has accepted, is you actually require all fish that are caught to be landed. When you start having too many exceptions to that rule, you undermine the viability of what it is that you’re trying to do.

Now, in respect of fish that the member refers to, these rules don’t come in overnight, and we are expecting that there will be an industry response to maximise the value of that which is returned. Even if it’s going into pet food or fishmeal for use in agriculture, that is not a wasted use. We’re expecting that the private sector response to these rules will be to innovate. They will innovate in a way that minimises the bycatch, and they will develop markets for that which is unavoidable bycatch for which they will need to develop markets. We have provided for regulations to allow—if that wasn’t viable and there was an area where it wasn’t viable to move the bycatch to some of those uses—some of that to go to a landfill. We hope that is not an outcome. If that did prove to be a significant outcome, then I’m sure that, in the future, we or another future Government would revisit the rule.

Thank you, Madam Chair. Look, I’m interested with some of the conversation that we’ve been having so far on the committee stage here of the Fisheries Amendment Bill. I think there are a couple of points that I just want to start on, actually. I just want to touch on the Green member Eugenie Sage’s contribution, because, for me, that just shows a total disregard for the reality of what actually happened and an intent to disguise what actually played out. It says quite clearly that amendments were unanimously recommended. So for her to try to suggest otherwise is totally misrepresenting the situation.

Now, in terms of the Minister’s comment that he is trying to do the right thing by putting in Supplementary Order Paper (SOP) 257 to remove those pre-set decision rules, it’s just flabbergasting, quite frankly. Here we are, only a few hours after the second reading of this bill. The Minister is a senior member of this House. He would be quite aware that the second reading is the time to foreshadow any potential SOPs that may come forward at the committee of the whole House stage, and there was absolutely no mention whatsoever of his decision, or his intent, to introduce that SOP at the second reading, which occurred only 24 hours ago, with his first speech of it—the final speech of it being only late this morning.

So, on that basis, how can we now be in a position, less than 24 hours later, where we have such a massive U-turn from the Minister on his position with regard to those pre-set decision rules? Or is it that he actually knew 24 hours ago and simply failed to inform the House of his intention to introduce an SOP? It would be disappointing to think that was the case. I’m not suggesting he would do that, of course. But I’m also really interested to hear from Labour members of the Primary Production Committee, because they also sat through all of those submissions, they heard the different views, they helped to amend this bill and to report it back unanimously to the House, and I am sure they are equally as surprised to note now that we are striking out a massive chunk of this bill around those pre-set decision rules.

Actually, I thought that was an area that was quite good. There was a good opportunity there to demonstrate an ability to be responsive to changing needs within the quota management system, because we have seen over time that we have particularly large fluctuations at times of fish stock assessments, because they may not be done on a particularly frequent basis. And so, once we roll around from one to the next for a particular fish stock, you can see a significant change in the total allowable catch recommended, and subsequently implemented, off the back of those fish stock assessments. And, of course, a drastic change—well over 100 percent in some instances; increase or decrease—can have, of course, a massive impact on the commercial operators trying to go about conducting their business, if they’re suddenly finding that the fish stock they’re allowed to catch has been slashed by half, or by 80 percent in some cases. That’s simply not great practice.

So the ability to have some flexibility through the pre-set decision rules would have enabled, in my mind, anyway, the Minister to make some assessments in between those formal fish stock assessments. And, yes, I accept that those decision points happen twice a year, but not for the same fish stock each time. I think that’s the key aspect here: we can be talking years between fish stock assessments for the same stock. So, on that basis, having the flexibility, through a range of data feedback, anecdotal information from commercial fishers, for example, suggesting that actually a fish stock is more depleted or more abundant than might have been the case when the total allowable catch was last reviewed would be an appropriate time for the Minister to exercise his right and say, “Well, hey, is there some flexibility? Do we need to drop this limit back down to ensure that the biomass remains sustainable, or not?” That’s where I see there was great flexibility in that.

So I’m really interested to understand exactly why—when this change suddenly came about. It’s a piece of legislation that’s been in the pipeline for a long time now, lots of consultation, so why are we just finding ourselves right now at the point where this is suddenly changing? I think I’ll leave it at that and get into my other points after the Minister responds to that question.

Thank you. I just want to put on record for anyone who’s listening that the reason the select committee amendments were unanimous is because the Green Party does not have a permanent member of the Primary Production Committee, but the Standing Orders enable any member of Parliament to attend a committee, and the Green Party saw this bill as really important—it was the first major change to fisheries legislation in some years—so we did attend and we listened to all the submissions. And there was debate and discussion as a result of those submissions.

We were talking about bycatch a little while ago. In clause 6, which the Minister’s Supplementary Order Paper (SOP) 257 would remove—but, at the moment, it is in the bill; clause 6 amends section 11 of the principal Act around sustainability measures—there is a major issue of bycatch, not just of species that are not targeted but of fur seals in the hoki fishery; of thousands of seabirds—I think it was about 14,000 a year or so ago; turtles. The bill at the moment doesn’t make any major changes to the information principles, the sustainability measures, or the environmental principles in the main Act to tackle the bycatch issue.

It is of major concern because the National Institute of Water and Atmospheric Research did a report recently about turtles, and 273 turtles—primarily leatherback turtles—have been caught by the fishing industry between 2007-08 and 2021. These are vulnerable to critically endangered species. They migrate from the South-west Pacific, which is quite tropical, down to northern New Zealand waters and spend anything like 12 months there. In places like Hawaii, there is much more focus, through their fisheries management system, in preventing bycatch. There’s an upper limit on the number of turtles that can be caught and then the fishery closes. There are areas where fishing isn’t allowed in order to protect breeding populations, which we don’t have here. But there are measures there that are further ahead than here.

Similarly with seabirds, a lot of the longline fisheries have bait on the hook, and then the birds dive to get the bait, get caught, get drowned. One of the most heartbreaking things for me was being fortunate enough go to the Antipodes and see there albatross chicks where one parent had been killed—probably in longline fisheries—and, because the chicks need food from both parents to thrive and survive, they were likely to die. So we do not, in New Zealand, insist on all of the mitigation measures that can be used in order to reduce bycatch of seabirds.

So my question to the Minister is in relation to an SOP in my name which would seek to change the environmental principles and add to section 11 the sustainability principles to require, when decisions are made under the Act, that there is a need to specify effective measures which fishers must implement to reduce the bycatch of protected species. We have a national plan of action for seabirds, which has got a goal of moving towards zero bycatch, but, unless this is flagged in the principal Act, it doesn’t get the attention that it deserves, in the Green Party view.

So, to the Minister, in terms of these changes around bycatch, does he recognise that bycatch is an issue, and are there any plans by him, the Government, and Fisheries New Zealand to actually strengthen the legislation around bycatch? And will he support the Supplementary Order Paper?

In respect of the Supplementary Order Paper, no. In respect of bycatch, the member is correct, and I think all members of this House are concerned with the bycatch of both mammals and seabirds. You know, the prognosis for the Antipodean albatross, for example, is dire. At the moment, I’m advised—in fact, I was recently advised that we have a particular problem with the loss of female birds. They are lighter and they range further in their search for food, and because they rove further, they’re actually roving into the areas of international waters where most of them are caught as bycatch, not by the New Zealand fishing fleets but by overseas fishing fleets.

That’s not to absolve the New Zealand fisheries management system or New Zealand fishers from the need to do better in respect of “interactions”, as they’re euphemistically called, or, you know, the catching of birds as bycatch in the New Zealand waters or our exclusive economic zone. But we’ve got to tackle both of these problems, both at home and in international waters, and we do that through our international outreach, both in the Pacific, where a lot of these fleets are based, but also with our diplomacy to their home countries, as far afield as Spain. There’s great civil society support for this, including some really good advocacy that’s being run by civil society groups. One of the things that they’re advocating for is a change to the rules to require more of the mitigation techniques to be compulsory rather than two out of three, and I’m expecting a report on those issues before the end of the year.

Thank you, Madam Chair. I’d like to ask the Minister, Hon David Parker, for feedback on a few Supplementary Order Papers (SOPs), including SOP 253, which is in my name. It seeks to replace, in clause 22A(2), new subsection (1A) in section 257, “the court must” with “the court may”, and, essentially, is changing the language to provide for some judicial discretion. The Minister would note that, on page 8 of our committee report, we focused on the policy that sits behind us, saying the penalty’s maximums. Then, as he has noted earlier, you know, aggravating and mitigating factors may well be, or should be, taken into account when determining the applicable penalty for any offence. But then that discretion, which is envisaged in that policy intent, is removed by the bill as it was reported back, saying that “the court must … make an order—”, so we’re suggesting that that would be a flexibility which would make sense.

In terms of SOP 259, the Minister will be aware that the existing provision section 72(5)(c) provides for the returns to the sea under an observer authorisation. Essentially, what we are doing is, you know—obviously we back the Minister’s continuation of cameras on boats. That is a sensible addition. But we’re suggesting, under this SOP, to include a parallel provision which would similarly allow for returns to the sea under camera monitoring—and the footage of any such returns can effectively be reviewed by the Ministry for Primary Industries—as a parallel to the observer monitoring which is in place.

Then, finally, SOP 258 essentially provides a generic defence for the offence of returning fish if they are damaged as a result of unavoidable circumstances. The bill, as the Minister would know, contains a provision in new section 72A(2)(b)(ii), to allow for an instrument to be approved to allow this. Essentially, what this SOP is doing is providing an administratively simple solution that, I would argue, would no longer necessitate the need for a particular instrument because it would have its own clear subsection.

So hopefully that is of some value. I have reflected on these SOPs, not sought to make dramatic political statements but actually see opportunities for improvement on the bill that we have in front of us.

Thank you, Madam Chair, and I thank the member for his contribution in respect of his Supplementary Order Papers (SOPs). If I could address Supplementary Order Paper 253, which, as the member has carefully outlined, would replace the words “the court must” to “the court may” order forfeiture. That is the effect of the legislation, I am advised by officials—I’ve just checked with them, anyway. How it works is that there is the general presumption of confiscation, or forfeiture, I should say. But, then, section 257(3), which this forms part of that section, says, “Notwithstanding subsection (1),”—which was the subsection that the member seeks to amend—“the court may, in the circumstances of any particular case, and upon application being made to it … direct that any particular license, approval, permission, or fishing permit, shall not be forfeit, or that the person shall not be prohibited”, etc.

So the discretion already sits there in section 257, subsection (3), and the scheme of the Act wouldn’t make sense if we were to amend that. I understand the member’s intention and I respect it. I agree that we don’t want to have no ability for a court to say that forfeiture would be unfair and disproportionate in that situation, but that’s what subsection 257(3) already provides. So I won’t be voting for the SOP.

Thank you, Madam Chair. Minister, clause 20—section 252 amended (Penalties)—(3A) states, “Every person convicted, whether in the same or separate proceedings, of 2 or more offences against section 72”—I’m paraphrasing, of course—“returning, abandoning, or retaining fish or other animals [or] aquatic life in any 24-hour period”. If I may, just to try and help me contextualise that if you’re a blue water fleet, perhaps in the Southern Ocean, and you throw a 2-tonne net overboard and you get a tonne and a half or two tonne of fish off it, and by virtue—I mean, you might smile, sir, but you can soak a net for a couple of hours and you will get tonnes of fish, and you’re talking about 50. And the potential for a prosecutorial reality, if not a fine exceeding $250,000 in respect to a second offence. Well, gracious me, you can chuck a net twice over in 24 hours and you’ve had two offences in that 24-hour period, and this speaks to, in a period of three years, as liable for that potential fine. Now, how do you reconcile that, sir? I mean, this is the practical world, and we all support the cameras, absolutely—it’s a good idea—as does the industry. And the very point of these nets, by design, is to allow for as many fish that are not target species to escape, and yet when you’ve got a tonne and a half of fish in a big net, you get a lot of deck wash. When the fish spill out, they’re considered caught; if they go over the side—and I’m sure there’ll be more than 50—all of a sudden we’ve got this $250,000 potential reality in the space of but a few days, or even potentially 24 hours. How do you reconcile that? Because, again, this is, as proposed, quite impractical.

At the moment, there is the same existing maximum penalty. The unfortunate thing for fishers at the moment is there’s no alternative, much less draconian, penalty available. So, in addition to the prosecutorial discretion to do nothing—which is always open to a prosecutorial authority if they don’t think it’s necessary or proportionate, nowadays—once this legislation passes, they can also issue infringement notices. So this is carrying forward the same maximum penalty as currently applies, but that would never be imposed by a court in respect of a minor issue. And if it was a truly minor issue, it would be very unlikely that there would be prosecutorial action anyway.

Thank you, Madam Chair. I’d be very keen to hear from the Minister with regards to my earlier question as well, but—

💬 Todd Muller: And some of the Labour MPs would be good.

Yes—also a good point, Mr Muller. I still haven’t had a response from the other side of the Chamber with regards to my invitation to any member of the Primary Production Committee from the Labour caucus to take a call and share their views on the significant change that was landed on us just hours ago. But I don’t see much interest over there at all—heads are quickly bowing down.

So I did just want to pick up on that last respect raised by Mr Cameron as well, because there is an area that I have some concern about, around the graduated scale of the fines. The intent of that is good and I support that in terms of being able to have more flexibility, but it’s a point that we’d raised in the select committee as well around wanting to get more confidence. I’m interested in the Minister’s view on this around the application of that, particularly in instances where we see a fine of $10,000 being issued for someone that catches up to 50 fish above the limit, but it’s significantly higher—$100,000—for anyone catching 51 fish, for example, with the contrast there being that there’s no consideration whatsoever for the value.

So the example I could give is that you could catch 50 southern bluefin tuna. They’d have a significant value, and, over and above the limit, you’d only be liable for a $10,000 fine, which is much less than the value of those fish. But on the flip side, if you caught 51 pilchards, for example, then you’d be liable for a $100,000 fine, which would be for a much lower-value fish species. It seems to me that that is a totally distorted assessment of the value, and, ultimately, the intent, I think, of the bill, which is to make sure that penalties are appropriate to the level of the offence. In that instance, it wouldn’t be, and I’m interested to know, obviously, how that will play out down the track, and what confidence the Minister has that we’ll be able to get that right and signal that to commercial fishers as well.

The other aspect that I had touched on in my second reading speech was with regards to the discard aspect and how that may impact on research vessels—specifically, the RV Tangaroa, which is the NIWA research vessel, for example. I understand that they have permits, but I’m not entirely confident that that allows for the level of discards that may occur. So I’m interested in the Minister’s views on whether that fits into the main provisions of this bill or not, because, obviously, in some of the fish stock assessments that they’re doing or the research work that they’re doing, they have to catch large volumes of fish, and that will require significant levels of discarding, because, obviously, over time that vessel has been adapted and no longer has the carrying capacity or the holding capacity in terms of processed fish that it had when it was first commissioned as a research vessel. I think two out of the three pounds have been removed from that vessel, so is there an unintended consequence here that might actually capture that vessel in particular, and others like it, or are we confident that it will be OK?

So I’m very interested in the graduated fines aspect and then the research vessel, please.

Thank you, Madam Chair. In respect of the research vessels, research vessels already get a special permit from the fisheries and they don’t need quota. They don’t need to meet with the general fisheries rules, and the same thing will apply here. They won’t be caught by these discard rules, just like they’re not caught by the quota management system more generally.

In respect of fines, I would make the point that the fines the member asks questions about are court-imposed. They’re the maximum that a court can impose in a prosecution. They’re not an infringement notice; they’re the maximum that a court can impose.

Now, if someone was prosecuted for—and they wouldn’t be. But if they were to be prosecuted for catching 51 shrimp, I don’t think that the courts would be imposing a fine of anything like the maximum of even the smaller of those two fine levels. So that’s an issue—if there was a prosecution—for the courts, as to the fine that they would impose. I don’t think it would take a very clever lawyer to convince a court that if they had caught 50 fish and the maximum was X, they wouldn’t fine them 10 times X for 51.

Thank you, Madam Chair. Thank you, Minister, for clarifying your expectations around that clause. I personally am a huge fan of the pilchard and the sardine. I can understand why a judge who feels as strongly as I do about the value of the sardine—particularly on toast, with some pepper and salt, a squeeze of lemon juice, and maybe a couple of drips of Kaitaia Fire—would potentially be very concerned that 50 or 51 sardines had accidentally been harmed and returned to the sea without making it into the tin. Minister, we would like you to shed some light on how you think judges might treat this in the future. When we just reflect on the sentencing guidelines as they apply to criminals—people who’ve committed offences like assault and robbery and ram raids and theft—what we’ve heard recently from other Ministers of the Government is that the sentencing guidelines haven’t changed but the judges have just interpreted them a bit more liberally, which is why so many people aren’t in jail; they’re at home, or maybe not, with ankle bracelets on. We’d just like to understand from the Minister how it is that he could have such confidence in future judges, because I do want to make sure that if sardines are going to be caught, if pilchards are going to be caught, they’re going to be marinated in tomato sauce and they’re going to be put in the can and not lost overboard, but I also don’t want the fishers who are out there doing the catching to be subject to prosecution or fines. So, Minister, I’d like you to answer that.

I’d also like to offer support for the Green member the Hon Eugenie Sage’s amendment to clause 4A, which proposes that the bycatch of protected species needs to be avoided and the need to implement effective measures by fishers to reduce the bycatch of protected species, in particular the Antipodean albatross and the New Zealand sea lion. Now, I understand that there are already significant controls and restrictions in place to make sure that doesn’t happen, but that there may be occasions where it does happen and there may be methods which haven’t yet been fully implemented to make sure that these species—these wonderful animals that soar for days and weeks out to sea, feeding in places where only the hardiest fisherman would actually go but that are at risk from even the most modern fishing practices—are protected. I would just like to reiterate the ACT Party’s support for this measure—obviously, on the basis that practical measures to avoid bycatch of protected species can be implemented. Thank you. Minister, would you please respond to that.

As I’ve previously said, the issues that are raised by the member I suspect are partly in jest, because he would know that it would be very, very unlikely that the prosecutorial authority would ever exercise their discretion to prosecute in the sort of circumstances that he has described, with his pilchards. If they were to do that, then I would trust the courts to deal with it appropriately.

In respect of the reference to the Green member’s Supplementary Order Paper, section 15 of the Fisheries Act 1996 already contains sufficient powers, so the member—being someone that doesn’t like to have confusing legislation or over-regulation—I think might revisit his opinion on that particular Supplementary Order Paper if he read section 15 of the primary Act.

Thank you, Madam Chair. I’d just like to build on the Minister’s last couple of conversations around the confidence that he wants us to have around how the judicial system will approach the penalties regime, because what he has done is highlighted one of the real concerns that we had as the Primary Production Committee, that too much of this is left to the interpretation of the regulations and the subsequent conversations, if you like, that are to be had with wider stakeholders over the next four years. At one level, that circle-back for consultation in terms of the secondary legislation impacts makes sense, of course, but it does give us real pause for thought and concern as the select committee, because the theme, Minister, that seemed to keep coming through when we tried to get clarity around the judgments that would be brought to bear on the 50 pilchards versus 50 tuna was, essentially, “trust us”, that once we get into the discussions with the industry and design the needed regulations where that’s applied, those sensible decisions will get made, as opposed to relying on more clearer direction from the primary legislation as to the balance that we were seeking.

You know, one of the concerns that I still have when I reflect on this bill is those various submissions from the smaller, often contract, fishers—for example, a few that talked to us from the Taranaki region. Relatively, in some cases, old or depreciated assets have been in industry for a long time, but the idea of a requirement to have cameras and the costs associated with that, and the reality of having to try to fish in some of those regions and not catch snapper when there’s such a lot of it—as a particular species that is in a healthy state at the moment in that area—and being caught not only in terms of needing to put it against their annual catch entitlement but also just being hammered in terms of potentially letting fish go back to the sea that perhaps don’t meet the criteria that is yet to be negotiated, around survivability and the like.

The concern that we still have, I would say, on this side of the House is too much of this is left to conversations yet to be had and there is not enough direction from the primary legislation. I would ask, Minister, whether you have had pause to reflect. You certainly have in terms of your sense that perhaps the recreational sector’s perspectives weren’t appropriately taken into account with respect to the pre-set decision rules. Have you any concern that perhaps those inshore commercial fishers’ perspectives have not sufficiently been captured in the balance that you have struck with this legislation?

I am convinced that this regulatory regime is better than the old one. It is less draconian, it is better for fishers, it’s better for Fisheries New Zealand, it will result in better outcomes for the fishery, and it doesn’t apply any unusual discretions to either the prosecutors or the courts. This is completely normal in any area of regulation.

I move, That the question be now put.

Supplementary Order Paper 256—you didn’t answer me, sir—would you give it consideration? I think the explanatory note lays it out quite clearly about the nominal value or monetised value of certain species versus others, and having so-called “bait fish” removed in that 50—more-or-less—limit to try and give a little bit more certainty. Especially to coastal commercial fishermen—they’re going to be heavily affected by the potentiality of unwanted bycatch and the attached prosecutorial reality that may follow. Would you give it consideration? Because I think this part of the industry, certainly from the submitters we heard, is deeply aggrieved about the legislation as proposed.

I have previously addressed that issue; we’re not supporting that Supplementary Order Paper. We don’t think it’s draconian; we do think it’s appropriate that fish that are caught are landed, and I’ve covered the reasons for that in a number of contributions.

Before I call the next call, I do want to warn members that we are beginning to have repetitive questions on Supplementary Order Papers (SOPs), so please make it relevant. And if it’s SOPs that have not yet been covered, go ahead.

Thank you, Madam Chair. I will just start by reiterating my request for a response to my first comments. The Minister, David Parker, still has not addressed those with regards to his Supplementary Order Paper, put forward at the last minute, removing the pre-set decision rules, and why that suddenly came to be only a couple of hours ago, why it was not signalled at all in his second reading contribution just 24 hours ago, and why he thinks that is now appropriate.

But specifically within that, and I think that this speaks to some of the ridiculousness of the process that we’re going through here—this is really shoddy process. Part 1: we’re looking at clause 5, which inserts new section 11AAA, where it is talking about the pre-set decision rules for sustainability measures. So in the first instance, the Minister put forward the following: “The Minister may (a) make rules that specify an approved range or limits within which any sustainability measure for 1 or more stocks or areas may be set or varied (the pre-set decision rules):”. Then during the select committee process that got taken out again because that wasn’t deemed to be appropriate, apparently. I’m interested in why the Minister has gone through this process and where he sees it sitting. Then he put back in, “The Minister may make rules within which any sustainability measure for 1 or more stocks or areas may be set or varied”. Now he’s taken it out again. So we’re seeing something getting put in, getting taken out, then put it back in, getting taken out again. I mean, this is absolutely shonky decision-making—shonky legislation-making—from the Minister, and I’m interested in why he thinks that was appropriate and then wasn’t, and then was and then wasn’t, and if he’s confident now that he has actually made the right decision on that.

Thank you, Madam Chair. Just a quick question. In terms of clause 16 and clause 23 and the fact that there can be an alternative method of disposal—and I’m thinking, I wish we’d been able to change that word, because it does suggest that fish that are landed can end up as waste. The Minister has said it could go to fish meal or it could go to landfill, but nobody wants that. But in terms of clause 23 and the regulations which the chief executive of Fisheries New Zealand or the Ministry for Primary Industries can make, what monitoring will be done by Fisheries New Zealand of fish that have landed, that don’t go to a licensed receiver, and are somehow disposed of in another way? Will there be monitoring of quantities? Will there have to be detailed reporting on that, and will there be a mechanism to respond if a lot of it is going to landfill? We’ve seen a lot of salmon go to the Blenheim landfill because of increased sea temperatures in the Marlborough Sounds—different reason, but what monitoring is going to be done in relation to alternative methods of disposal other than going to a licensed fish receiver?

As clause 23, which inserts new section 297(1)(a)(xiiv)(D) says, the chief executive will prescribe the requirements relating to the disposal of fish, and those requirements at new section 297(1)(a)(xiiv)(E) can include requirements relating to verification, so that will be prescribed at the time by the chief executive.

I move, That the question be now put.

Motion agreed to.

The question is that the Hon David Parker’s amendments to Part 1 set out on Supplementary Order Paper 252 be agreed to.

The question is that the Hon David Parker’s amendments to Part 1 set out on Supplementary Order Paper 257 be agreed to.

The question is that the Hon Eugenie Sage’s amendment inserting new clause 4A set out on Supplementary Order Paper 254 be agreed to.

Eugenie Sage’s amendment to clause 6 set out on Supplementary Order Paper 254 is out of order as being inconsistent with a previous decision of the committee.

The question is that Mark Cameron’s amendments to Part 1 set out on Supplementary Order Paper 256 be agreed to.

The question is that Todd Muller’s amendments to Part 1 set out Supplementary Order Paper 258 be agreed to.

The question is that Todd Muller’s amendment to Part 1 set out on Supplementary Order Paper 259 be agreed to.

The question is that the Hon Eugenie Sage’s amendments to Part 1 set out on Supplementary Order Paper 255 be agreed to.

The question is that Todd Muller’s amendment to Part 1 set out on Supplementary Order Paper 253 be agreed to.