Recent New Zealand Practice

From the Ministry of Foreign Affairs and Trade

IUU Fishing: ‘Paloma V’ case

In June 2008, New Zealand's Ministry of Fisheries and Ministry of Foreign Affairs and Trade successfully defended judicial review proceedings in the High Court in Wellington, arising out of a Ministry of Fisheries examination in May of a Namibian-flagged vessel, the Paloma V, which had called into Auckland to unload toothfish.

Fisheries officers found information aboard the vessel linking it to illegal, unreported and unregulated (IUU) fishing. For example, the boat’s computer records revealed that it had been in contact with known IUU fishing vessels and had re-supplied them at sea.

The vessel’s owners then instructed lawyers to try to stop New Zealand reporting this information to the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and proposing the vessel for inclusion in CCAMLR’s IUU vessel list.

The lawyers for the Namibian vessel claimed the in-port vessel search process was flawed. They argued that New Zealand had to use the special, more limited, high seas boarding and inspection regime under Part 6A of the Fisheries Act 1996, because that applied the law of the high seas.

The Court found in the Government’s favour, accepting that New Zealand has broad powers of discretion to determine whether to apply domestic or international powers of search in New Zealand waters.

Following the High Court’s decision, the government filed its CCAMLR report. Namibia has since de-registered the Paloma V based on the information New Zealand provided to CCAMLR. The proposal to IUU list the Paloma V will be considered at CCAMLR’s annual meeting in Hobart in October.

To see the full judgment please go to http://jdo.justice.govt.nz/jdo/search.jsp and enter the search word "Omunkete".

Agreement Establishing the ASEAN – Australia-New Zealand – Free Trade Area

New Zealand and Australia reached substantive conclusion of the Agreement Establishing the ASEAN - Australia-New Zealand – Free Trade Area with the ten ASEAN member states in late August. This Agreement is the first time that ASEAN has negotiated a comprehensive free trade agreement as part of a ‘single undertaking’. All Parties to the Agreement will now undertake legal verification of the texts and the associated schedules. Once this has been completed domestic approval processes will also need to take place before a finalised document can be put forward for signature.

Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings a Regulatory Enforcement

Australian and New Zealand signed on 24 July the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings a Regulatory Enforcement. The objective of this Agreement is to simplify the service of civil court proceedings between Australia and New Zealand and the process of enforcing an expanded range of court judgments on a trans-Tasman basis.

Legislation passed for UN Convention on the Rights of Persons with Disabilities

The Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill was passed on 2 September. The Bill removed outdated and discriminatory provisions in some pieces of legislation that automatically disqualified a person from certain public or fiduciary offices on the grounds of being mentally disordered within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or being subject to a compulsory treatment order under that Act. Instead, the Bill proposed amendments to such legislation to ensure a person’s capacity to perform a role or function is able to be individually assessed. The Bill also clarified the provision of reasonable accommodation in the Human Rights Act 1993. The passage of the Bill was the last remaining step to enable New Zealand to ratify the United Nations Convention on the Rights of Persons with Disabilities. New Zealand will ratify in time to take part in the first Conference of States Parties of the new Convention, scheduled to take place late next month in New York.