Principles for ACE Balancing and

Principles defining Criminal Behaviour

In the detailed critique of the Minister's letter of 8 December 1996, the lack of agreement on principles for the balancing regime was highlighted. Here are proposed modifications to the principles that are workable, and can produce effective outcomes. Bits removed are struck out, and additions are highlighted in blue italic, and detailed explanation follows.

The original set of principles used by the Ministry was founded on the notion that fisher's know what they are going to catch before they catch it. That notion has no basis in reality. Fishers can influence the outcome of their fishing activity, but not control it. The difference is fundamental.

The degree of randomness is so great that any attempt to allow for it must necessarily nullify the initial assertion that fishers can control what they catch. The result of trying to sort out in court what element was deliberate and what was random, would lead to frustration of all parties.

The 1983/86 legislation started out with this assertion, and required so many changes and defences that the initial assertion was countered in practice, and extreme administrative complexity was the result.

The only path to administrative simplicity is to have compatibility between the principles and the outcomes that are achievable.

A workable evolution is to have a balancing regime that requires all parties to balance by the end of the year (without penalty) or at some later time (with a continuing penalty). Such a system requires inter-year flexibility to allow fishers to cope with the inherent uncertainties at all levels of fishing. Reinstatement of the 20% carryforward of un-used ACE (one of the foundation principles of the ACE regime) is an essential first step in this regard.

If we are to remove Deemed Value payment as a defence (because there is no crime), and instead have it as a bond against future acquisition of ACE, and require all Catch to be balanced with appropriate ACE, then a further level of flexibility (with a strong penalty attached) is required. This would allow fishers to have an "Overdraft" facility on ACE from future years (ie carry their unbalanced catch forward), but would charge for the privilege. The charge would need to be proportional to usage, and might be set at zero for quantities under 100Kg, and at higher rates for higher quantities or for stocks under threat. In my response to the Minister's letter I suggested a rate of 20% of Deemed Value, with an ongoing 10% of Deemed value every 6 months. This could be increased substantially if individuals exceed say 10% of their ACE holdings for that stock, and there was any perceived threat to the stock. The incentive must be strong to balance with the appropriate ACE in a short time frame (thus mitigating any sustainability issues), and give sufficient flexibility to allow individuals to work with the unpredictable reality they face, without incurring criminal liability.

A balancing regime with these principles has some realistic chance of success:

  1. Secure sustainability by ensuring:

2. Enhance the value of individual property rights in the stock (linked to incentives for husbandry) through:

3. A system that:



The changes proposed to these principles and objectives are explained below.

  1. Secure sustainability by ensuring:

2. Enhance the value of individual property rights in the stock (linked to incentives for husbandry) through:

3. A system that:

The intense focus of Ministry policy to reduce the risk to Ministry personnel and to the Crown is understandable. This focus to the point of detachment from reality, and from operationally achievable objectives is potentially catastrophic.

We need to reduce the role of and the risk to the crown.

We also need objectives that are achievable.

It would be great to gain some operational simplicity.

The only hope of achieving this is to agree on the fundamental principles, and the practical outcomes, then have experts from all disciplines working closely together to produce the best possible mechanisms for achieving them.

Any attempt to legislatively define the mechanisms between principles and outcomes is doomed to failure. The time pressures on all people involved in that political process simply don't allow for an understanding of the detail of issues required to produce effective mechanisms. The political process is also too slow to allow for the element of trial and error that always occurs at some level of project implementation.


There is much in the 1996 Act that is progressive. There are even parts of the balancing regime that are a step forward. But the mismatch of parts, and the lack of a clear set of agreed objectives makes the 1996 Act unworkable in its current form.

Ted Howard Jan 28 1998