Section 9 of the Act provides that a person may not apply to register a trade name product if the product is exempt from registration requirements. The current exemption for some inhibitor substances would end one year after the bill receives Royal assent. We recommend inserting clause 4A to enable applications to register a trade name product if there is an end date for its exemption from registration.

Section 154N(21) of the Act sets out that a person commits an offence if they erroneously declare that they are not in possession of any (or all) goods specified in a declaration that the person is required to make about the goods. Clause 112 of the bill sought to amend this section to clarify that declarations at the border by passengers include oral responses to questions asked by an inspector. However, making this clarification for section 154N(21) may have unintended consequences for other provisions in the Act that refer to declarations and do not contain a similar clarification. Therefore, to avoid any unintended consequences, we recommend deleting clause 112 from the bill.

Section 116(1) enables an inspector to seize unauthorised goods (and other goods in certain situations) when exercising specified powers under the Act. Clause 101 of the bill would amend the section to allow the seizure of containers, packages, or things in which the unauthorised goods are contained.

Inspectors can use the powers of seizure under section 116(1) but authorised persons cannot. We recommend amending section 116 to give authorised persons those powers.

Recently a High Court case found that a tender can be treated as a separate fishing vessel. There are concerns that obligations from other regulations under the Fisheries Act would apply if the tender were treated as a separate fishing vessel.

The Minister proposes amending the Act to provide that a tender registered to its mother vessel is not treated as a separate fishing vessel for the purposes of the Act, and therefore does not require separate registration or reporting obligations. We recommend inserting clause 151A to make this clear in section 108 of the Act. We also recommend inserting clause 134(5) to make the interpretation of “transhipment” under the Act clearer on this point.

Clause 147 would amend section 75 to enable the Minister to change annual and interim deemed value rates during a fishing year. Changing interim deemed value rates may cause operational challenges. Therefore, we recommend amending clause 147 so that only annual deemed value rates can be changed during a fishing year, and not interim deemed value rates.

Section 246(1) of the Act sets out that, if a body corporate commits an offence under the Act, a director or manager also commits an offence if certain criteria are met. Subsection (2) specifies that the director or manager is liable on conviction to the appropriate penalty for the provision creating the offence.

Previously, section 246 was considered to deem directors and managers liable for the same offence as that committed by the body corporate. In 2018, the Court of Appeal held that section 246 creates a separate and distinct offence by directors and managers of body corporates.

Section 252 of the Act sets out the penalties for offences under the Act. Clause 170 would amend section 252 to specify penalties for offences for which directors and managers are liable under section 246.

We think the Act could be clearer about the applicable penalties. We recommend inserting new clause 169A to amend section 246(2) to make it clear that a director or manager of a body corporate who has committed an offence under section 246(1) is liable on conviction to the penalty in section 252 that corresponds to the provision that creates the offence by the body corporate.

Section 256(2) of the Act sets the threshold for publicly notifying details of forfeit property. The threshold was set in 2004 at $200 in estimated value. We recommend increasing the value to $500.

A forfeiture can be ordered by a court with criminal jurisdiction. Section 256 of the Act sets out the process for how a person can apply to a court for relief from the effects of forfeiture. However, the section does not state whether the applications for relief should be considered under criminal or civil jurisdiction.

Dealing with an application for relief under the same court that ordered the forfeiture would be more efficient and easier for both the applicant and the ministry. The Minister proposes amending section 256 to state that a court with criminal jurisdiction should consider applications for relief from the effects of forfeiture. That had largely been the approach in the past, until changes in 2020 when the District Court began treating it as a civil matter. We recommend inserting clause 172A(2) to specify the jurisdiction.

Commercial fishers may not sell or otherwise dispose of landed fish or other aquatic life except to a licensed fish receiver, in limited wharf sales, or by an approved alternative method of disposal in accordance with regulations under section 297 of the Act. The Director-General of the Ministry for Primary Industries is empowered to approve alternative methods of disposal. However, commercial fishers must apply to the ministry to use the method, with each application considered individually.

The Minister proposes amending the Act to enable regulations to set alternative disposal methods for commercial fishers to use for disposal of landed, commercially caught fish under section 191(1)(c), with any associated conditions and approvals required. This would allow alternative disposal methods to be prescribed that do not require individual applications for approval. To effect this change, we recommend inserting clauses 168A and 177(1AAA) to amend sections 191 and 297 of the Act.

Some fish species are subject to transitional landing exceptions. Transitional landing exceptions for species listed in Schedule 1AA of the Act, clauses 6 and 7(2) will cease to exist on 1 October 2026, unless they have been provided for by the Minister under section 72A(1) in a new instrument.

The Minister in charge of the bill proposes extending the transitional date for landing exceptions from 30 September 2026 to 30 September 2028. The extension is needed because the process for evaluating the species against section 72A is taking longer than expected, and on-board cameras may provide more information to inform the process, possibly allowing a more flexible framework for landings and discards.

We recommend inserting clause 179C(1) and (5) into the bill to extend the transitional landing exceptions in Schedule 1AA, clauses 6(1)(a) and 7(2) from 2026 to 2028.

Section 404 of the Act enables the Minister to issue domestic food standards if New Zealand chooses to opt out of standards that have been developed, or are being developed, under the Agreement between the Government of Australia and the Government of New Zealand concerning a Joint Food Standards System 1995 (Food Treaty) for inclusion in the Australia New Zealand Food Standards Code.

Clause 234 would amend section 404 to also enable the Minister to issue a domestic food standard if joint standards have not been developed, and are not being developed, for inclusion in the joint code. Currently, there is no power under the Food Act to develop a new domestic food standard in those circumstances.

Some submitters raised concerns about the provision. Some were concerned that the proposed power is too broad and wide-ranging to be included in the bill, and that it potentially overrode the provisions of the Food Treaty. Others suggested it was duplicative and unnecessary.

We note the importance of the legislation being consistent with the Food Treaty. The provision is only intended to be invoked once it has been determined through the Joint Food System that there is no Australian interest in pursuing a joint approach, and where there are exceptional New Zealand conditions that necessitate a domestic standard.

To better reflect the above, we recommend amending clause 234 to add an additional requirement in the amended section 404(1). Before the powers in the provision could be used, the Minister should be satisfied that there is no joint interest for joint standards to be developed and that the specific conditions in New Zealand require a domestic standard.

The Food Act enables joint food standards and domestic food standards to be made. If this bill is enacted, the Food Act would also enable temporary food standards to be made. Standards under the Food Act also apply to animal material and products under the Animal Products Act, and to wine made under the Wine Act. We recommend amending the three Acts to improve consistency of definitions and use of joint, domestic, and temporary food standards.