Paua poaching and other fisheries offences

Introduction

Rules for amateur fishing

If you’re not fishing commercially, you’re allowed to take up to the daily limits stated in the amateur fishing regulations (see below, “Daily limits for amateur fishing”).

It’s a criminal offence to take more than those daily limits. For small amounts over the limit you may just get a warning, or you’ll be given an infringement notice (like a speeding ticket) and fined (usually $250), and you won’t get a criminal record. For larger amounts you can be charged in court. If you’re convicted you can then be fined and in some cases given a community-based sentence like community work, or even jailed in the most serious cases. You could also have your fishing gear seized and taken from you permanently, and also other property like your boat or car if you used it in committing the offence. For more information, see below, “Charges and penalties for fisheries offences”.

Māori can take more than the amateur daily limits if this is for hui or tangihanga and they’ve got written permission from a formal representative of local tangata whenua. Permission needs to come from either the kaitiaki who’ve been officially confirmed by the Ministry of Primary Industries for the particular rohe moana, or, if no-one’s been confirmed as kaitiaki, then from a representative of the local marae, rūnanga or other authority. For more details, see the chapter “A death in the family”, under “Funerals and tangihanga”.

What does “amateur fishing” mean?

Fisheries Act 1996, s 2 (“sale” definition), s 89(2)(a)

Amateur or recreational fishing means not fishing for the “purpose of sale” – but “sale” here also includes barter.

Some “fishing” falls outside these rules – for example, whitebait. On the other hand, some that you might not expect to be covered does fall within the rules – like eels and wai kōura (freshwater crayfish).

Daily limits for amateur fishing

How the daily limits work

Fisheries (Amateur Fishing) Regulations 2013

If you’re fishing or otherwise gathering kaimoana as an amateur or recreational fisher, the limits that apply to the various fish and shellfish species are set out in a single set of regulations called the Fisheries (Amateur Fishing) Regulations.

The country is divided up into seven different fisheries areas, called “FMAs” – for “fisheries management areas”. For some species the limits are different depending on what area you’re in, while for some species they’re the same throughout the whole country. Sometimes they’re the same throughout the whole country except for one or two FMAs. For example, the per-person daily limit for tuangi (cockles) is 150 everywhere, except for the Auckland/Kermadec area, where it’s 50.

If you’re in a group with whānau or friends, each person who’s physically involved in the fishing or gathering is entitled to claim the per-person daily limit. So if you’re in a group of four people all actively involved in fishing or gathering, the group can have four times the per-person limit.

Note: You’re not allowed to fish at all in any marine reserve – for example, the Taputeranga marine reserve on the Wellington south coast.

Marine Reserves Act 1971, s 3(3)

  • As an example of the amateur limits, as at June 2016 the daily limit for pāua in most FMAs is 10. However, if you’re gathering pāua over more than one day you’re allowed to have up to 20 pāua at any one time, or a shucked weight of 2.5 kg – this is called the “accumulation limit”.

Fisheries (Amateur Fishing) Regulations 2013, regs 12, 16, 48, Schedule 1

  • You can’t use scuba gear to gather pāua.

There are also closed seasons for some shellfish. Oysters have a closed season from 1 September to the last day of February, but in the South Island only. Scallops also have a closed season, but the dates depend on which FMA you’re in.

Fisheries (Amateur Fishing) Regulations 2013, regs 27, 28

How to find out daily limits and minimum sizes

The easiest way is to text the automated information line run by the Ministry of Primary Industries – this will tell you the minimum size and the catch limit for a particular species. Just text the name of the species in your message – just “paua” for example (it doesn’t work if you spell it “pāua”) – and send it to 9889.

Note: You’ll be allowed to take more than the daily limits if you’re gathering for hui or tangihanga and you’ve got written permission from a formal representative of local tangata whenua (see the chapter “A death in the family”, under “Funerals and tangihanga”).

Charges and penalties for fisheries offences

Fisheries Act 1996, s 254

Note: Fines and other penalties for fisheries offences are particularly heavy compared to some other kinds of criminal offending. This is because the fisheries laws specifically require judges to provide a deterrent when they’re sentencing.

Overview

If you breach the daily catch limits or the size limits in the amateur fishing regulations, a fisheries officer can give you an infringement notice (like a speeding ticket) for up to $500. But if you take more than three times the daily limit, you may face criminal charges in the courts, in which case the fines will be much higher.

At the lower end of the scale the charges will be brought under the amateur fishing regulations. But in the most serious cases you can be charged under the Fisheries Act 1996, which can mean heavy penalties, including community-based sentences like community work, or even a jail term. Any equipment you used when fishing, like your boat and diving gear, could also be seized and taken from you permanently, along with your boat or car if you used them in committing the offence.

Māori who gather kaimoana for customary purposes without first getting written permission from kaitiaki or local tangata whenua can be fined (for details about Māori customary fishing rights and the relevant offences and penalties, see the chapter “A death in the family”, under “Funerals and tangihanga”).

Note: The fisheries laws are enforced by the Ministry of Primary Industries (MPI). If you’re charged in the courts, the MPI will usually be the prosecutor.

Getting an infringement notice for minor poaching offences

Fisheries (Amateur Fishing) Regulations 2013, reg 156, Schedule 19; Criminal Procedure Act 2011, s 375

If you’ve taken only a few fish or shellfish over the limit, or if some of your catch are undersize, you may get just an on-the-spot infringement notice from a fisheries officer. An infringement notice is like a speeding ticket – you pay a fine but it doesn’t give you a criminal record. Instead of getting one of these notices, you may even just be given a warning.

If you’ve taken up to twice the legal limit, the infringement fine will be $250. But if you’re between two and three times over the limit, it will be $500. So if for example you’re in Wellington (where the daily pāua limit is 10) and you’ve taken up to 20 pāua, you’ll be fined $250. In the same city, if you have between 21 and 30 pāua you’ll be fined $500. If some of the pāua are undersize, you’ll also get a separate $250 infringement fine for that.

If you’ve been given one of these infringement notices, you’ll have the option of asking for a court hearing where you can challenge the notice. If you do take the issue to court, but you’re found guilty anyway, you’ll have to pay the fine but you still won’t get a criminal record. You can also take an infringement notice to court if you admit you did break the law but you want to challenge the amount of the fine.

If you’re taken more than three times over the limit, you’ll face criminal charges in the courts, rather than getting an infringement notice (see below).

Note: Fisheries officers (who work for the Ministry of Primary Industries) have very wide search and seizure powers and powers to require people to answer questions.

Fisheries Act 1996, ss 199-207

Facing criminal charges in the courts for breaching the amateur daily limits

Fisheries (Amateur Fishing) Regulations 2013, regs 12, 18, 19; Fisheries Act 1996, ss 232, 254; Criminal Procedure Act 2011, s 375

Fisheries officers will bring criminal charges against you in the District Court if you take more than three times the allowed daily limit for amateur fishing – for example if you take more than 30 pāua in most parts of the country. (Smaller amounts over the amateur limits are dealt with by an infringement notice: see above).

If you’re convicted, the penalty will usually be a $1,000 fine. But if you’ve taken a very large number – 80 to 100 pāua for example – you’ll usually be fined $2,000. Usually the fisheries officials will charge you under the amateur fishing regulations, and in that case the maximum fine is $20,000. However, fines near that maximum are given out only in the most serious cases, when the numbers you’ve taken are very high or you’re a repeat offender, or both.

Fines given by judges for fisheries offences are particularly high compared to some other types of criminal offences. This is because the fisheries laws specifically require judges to provide a deterrent – both for the particular defendant and for other people.

In serious cases involving very large numbers over the daily catch limit, or selling illegally caught fish, the fisheries officials may decide to charge you under the Fisheries Act rather than under the amateur fishing regulations. The maximum penalties are then much heavier, and include community-based sentences like community work, and jail in the most serious cases (see below).

Taking undersize fish or shellfish

Fisheries (Amateur Fishing) Regulations 2013, regs 18, 19; Criminal Procedure Act 2011, s 375

If you’ve taken undersize fish or shellfish, you’ll be given an infringement notice carrying a $250 fine.

If you’ve taken more than three times over the daily catch limit, you’ll face criminal charges in court, and if some of those were undersize you’ll also face a separate charge for that and a separate fine if the judge convicts you of it. Usually you’ll be fined around $500 for the undersize fish (the maximum fine is $10,000). However, even though you’ll have to pay the fine, you won’t get a formal criminal conviction for the undersize offence. Undersize fishing can’t give you a criminal record, regardless of whether you’re only given an infringement notice for it or whether it’s included with other fisheries charges that you face in court.

More serious charges for very large numbers or for selling illegally caught fish

Fisheries Act 1996, ss 232, 233, 252

Cases: [2013] NZHC 2493 – [2013] DCR 354

In serious cases involving large numbers of fish or shellfish over the daily catch limit, or if you’ve taken excess fish to sell them, the fisheries officials at the Ministry of Primary Industries may decide to use the most serious offence provisions in the Fisheries Act rather than the amateur fishing regulations. The maximum penalties under the Act are much heavier, and include community-based sentences like community work, or jail in the most serious cases.

The MPI may also decide to charge you under a Fisheries Act offence if you’ve got previous convictions for similar kinds of offending.

The most serious penalties apply when you sell fish or shellfish, or get any other benefit, after knowingly gathering them in breach of the fishing laws or after receiving them from someone else who gathered them. You’ll also be guilty of this offence if you didn’t in fact sell the fish or shellfish but you did intend to sell them. If you were found with more than three times the amateur daily limit the law assumes you intended to sell them. In that case it’s up to you prove otherwise.

Fisheries Act 1996, ss 195, 233, 252

For this offence you can be jailed for up to five years, or fined up to $250,000, or both. Usually your boat or car will also be permanently seized if you used it in committing the offence.

If you plead not guilty you’ll have the right to choose either a jury trial in the District Court or a trial in front of a District Court judge alone. (See the chapter “The criminal courts”, under “Overview of criminal procedures”.)

What sentence am I likely to get for the more serious Fisheries Act offences?

The particular sentence you’ll get will depend on how serious the case is, including how many you took over the limit, and whether you’re taking the fish as part of an illegal commercial operation. It will also depend on whether you have previous convictions for fisheries offences and how many and what for. It will also depend on any mitigating factors, including if you pleaded guilty.

Fines and other penalties for fisheries offences tend to be harsher compared to some other types of criminal offending. This is because the Fisheries Act requires judges to provide a deterrent.

Fisheries Act 1996, s 254

If this is your first fisheries offence, and you take a significant number over the catch limit, you may face a starting-point sentence in the range of 100 to 350 hours’ community work. In general, you won’t be given a fine if you can’t afford to pay it, and that may make a community-based sentence like community work more likely in your case. The fisheries laws allow judges to give community-based sentences instead of a fine.

Case: [2015] NZHC 2565

Sentencing Act 2002, s 14(1); Fisheries Act 1996, s 252(7)

You may get a jail term in the range of six months to two years if, for example, you have a long history of fisheries offences, or you took a particularly large number over the catch limit, or if you’re part of an ongoing commercial poaching operation.

The courts have given some guidelines on sentencing for commercial poaching operations:

Case: HC Gisborne, AP20/02, 7 Oct 2002

  • For a small commercial operation the judge will consider something less than jail or home detention, such as a fine and/or a community-based sentence.
  • For a medium-sized commercial operation, a jail term of one to two years will be the starting point, but with some adjustment depending on whether the judge also imposes a fine.
  • For a large commercial operation, the starting point will be a jail term of three or more years.

If you’re given a jail term for a fisheries offence, the judge will usually allow you to serve home detention instead. For example, if you’re sentenced to 12 months’ jail, you’ll typically end up serving a home detention sentence of three to four months.

What if I’m part of a group that takes over the combined limit?

Case: [2013] NZHC 2493

If you’re part of a group of people who together take a large number of excess pāua or other fish or shellfish, the sentencing judge won’t simply divide the total by the number of people in the group and hold you responsible for a proportionate share. For example, if four of you took 200 excess pāua, the judge won’t accept that you as an individual should only be held responsible for 50 excess pāua. The judge will treat your offending as more serious than that, holding you responsible for being part of the group’s collective decision to take 200 excess pāua.

But at the same time, it won’t be as serious as if you took 200 excess pāua on your own. In other words, the judge will place the level of seriousness as somewhere between taking 50 excess pāua on your own and taking 200 on your own.

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