Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill

Hon JIM ANDERTON (Minister for Biosecurity) Link to this

I move, That the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill be now read a first time. At the appropriate time I intend to move that the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill be considered by the Primary Production Committee, and that the committee present its final report on or before 17 March.

This bill will resolve issues arising from a Court of Appeal judgment. The effect of it was to create an unworkable legal framework for the management of biosecurity risks at the border. If the law is not amended, we will have an unworkable situation at the border. We will impede imports, and we will potentially be at risk of inconsistency with our World Trade Organization obligations.

To understand what this bill is about, we need to look at the risk caused by organisms coming into New Zealand. There are two main ways that an organism can arrive here. It can be deliberately imported, usually with the intention of putting it to some specified beneficial use. Alternatively, it can arrive incidentally, coming in with a legitimate import. For a very long time, the Ministry of Agriculture and Forestry and its predecessor ministries managed the risk from organisms coming in with traded goods. The statutory basis for the Ministry of Agriculture and Forestry’s role is the Biosecurity Act, which was passed in 1993. It works like this. If so-called risk goods might bring harmful organisms into New Zealand, they have to comply with risk management conditions before they are cleared for entry. The conditions are set out in an import health standard and ensure that any risks are safely managed. That is the process for organisms that may come into New Zealand incidentally.

At one time the Ministry of Agriculture and Forestry was also responsible for managing the risk of deliberately imported new organisms. That changed, however, when the Hazardous Substances and New Organisms Act was passed in 1996. The Act set up the Environmental Risk Management Authority to make decisions about deliberate imports of new organisms. The intention, when the legislation was going through the House, was that the Ministry of Agriculture and Forestry would continue to be responsible for managing risks from incidentally imported organisms. That is apparent from the report of the Committee on the Hazardous Substances and New Organisms Bill. Unfortunately, the drafting of the legislation did not reflect that intention, and the Act does not make any distinction between deliberate importation and incidental importation. Instead, the Act simply states that no new organism shall be imported without approval from the Environmental Risk Management Authority. That very general wording in section 25 of the Act led to a Court of Appeal judgment that in turn has led to this bill.

The Court of Appeal judgment was issued in a case brought by the National Beekeepers’ Association of New Zealand. It challenged a Ministry of Agriculture and Forestry import health standard for the importation of honey from Australia. The grounds for the National Beekeepers’ Association’s challenge related to a micro-organism referred to as Paenibacillus alvei. This organism is present in Australia but is classed as a new organism in New Zealand under the Hazardous Substances and New Organisms Act. Both parties agreed that the importation of Australian bee products will inevitably at some point in time lead to the introduction into New Zealand of Paenibacillus alvei. The Ministry of Agriculture and Forestry thoroughly researched Paenibacillus alvei, and concluded that it does not pose a risk to New Zealand.

The National Beekeepers’ Association’s case did not, in fact, challenge that conclusion. The association’s legal challenge was a jurisdictional one. It asked the court to decide whether the correct decision maker was the Environmental Risk Management Authority, under the Hazardous Substances and New Organisms Act, or the Ministry of Agriculture and Forestry, under the Biosecurity Act. In February last year the High Court found in favour of the Ministry of Agriculture and Forestry, but the National Beekeepers’ Association of New Zealand appealed. In December the Court of Appeal decided that honey or other bee products from Australia containing Paenibacillus alvei may not be imported without biosecurity clearance under the Biosecurity Act and approval granted for new organisms under the Hazardous Substances and New Organisms Act. The court also said “if there were other known new organisms which might incidentally be imported in other products then, as we interpret the legislation, approval for them would be required from ERMA.”

The conclusion of the Court of Appeal judgment is that all new organisms imported into New Zealand must have prior approval under the Hazardous Substances and New Organisms Act. This will occur regardless of whether they are being imported deliberately or incidentally. The result creates an unworkable legal framework for the management of biosecurity risks at the New Zealand border. It is unworkable because of the fundamental difference between setting risk management conditions for goods that may incidentally have new organisms on or in them versus approving the deliberate importation of a new organism. The risks posed by an organism being imported incidentally are very different from the risks posed by that same organism if it is imported deliberately in large quantities in order to establish it in our environment.

There are various processes in the Hazardous Substances and New Organisms Act. Officials have thoroughly investigated it to see whether they could be used to manage incidentally imported organisms. They unanimously concluded that the Hazardous Substances and New Organisms Act cannot be used in that way. Someone would need to meet the application costs; someone would need to prepare all the necessary information for an approval to import a new organism. Who is going to do that when no one has any desire to actually import that organism? Even if someone was prepared to fill out the paperwork, do the research, and bear the costs, the information needed to approve the organism may not exist. Anyway, any organism has to reach a required standard such that the benefits must exceed its negative effects. Since no one wants it here, it is highly unlikely that the organism could meet that standard; there would be no benefits. In addition, an enormous number of invisible micro-organisms enter the country on goods and even passengers and tourists every day. They do not pose a risk to New Zealand; however, many would be regarded as new organisms under the Hazardous Substances and New Organisms Act. Requiring prior approval to import them would be completely impractical.

The court’s conclusion has implications for other Biosecurity Act import health standards. Most, if not all, risk goods imported into New Zealand in compliance with an import health standard have the potential to bring with them new organisms. As a result, other import health standards may be vulnerable to legal challenge. The Ministry of Agriculture and Forestry has suspended issuing new import health standards or amending existing ones until the law can be changed. This suspension is preventing new lines of trade. It is causing frustration for trading partners and importers who were expecting to receive approval to commence imports. Countries affected include those in the EU, and the United States, Australia, and Japan. This cannot go on. Parliament needs to respond. The only solution to the unworkable legal framework created by the decision of the Court of Appeal is to amend the legislation. The court itself anticipated that outcome when it stated “If … administrative or practical difficulties are likely to rise from our decision, then it is within the hands of Parliament to cure any such difficulties by statutory amendment.”

The key change that is made by the bill before the House today is to confirm that the Biosecurity Act rather than the Hazardous Substances and New Organisms Act is the correct statute for making decisions on incidentally imported new organisms. In making this change, however, the bill will retain the status quo for all genetically modified organisms, or GMOs. There will still be an absolute prohibition on importing GMOs without a Hazardous Substances and New Organisms Act approval. The current strict border controls that prevent the importation of unapproved GMOs will remain. The bill also includes provisions to ensure that the Biosecurity Act import health standard process is not used as a back door for deliberately introducing new organisms. Any incidentally imported new organism will remain a new organism under the Hazardous Substances and New Organisms Act. The definition of “develop” in the Act will be expanded to prohibit incidentally imported new organisms from being isolated and used without an Environmental Risk Management Authority approval.

The last aspect of the bill I want to talk about is the validation clauses. The bill will ensure that existing import health standards and past decisions made by the Ministry of Agriculture and Forestry based on those standards cannot be challenged on the same grounds that the court accepted in the National Beekeepers’ Association case. Other grounds of challenge will, of course, remain available. The validation clauses specifically include the import health standard for honey from Australia. The Government is conscious of the general principle that Parliament does not legislate to deprive a successful litigant of the fruits of its judgment. At first glance it may appear to be unfair to use the legislative power of the House to validate this import health standard. We have carefully considered how that principle applies in this case. The Government has decided it should not prevent the honey import health standard from being validated.

There are two main reasons for that. First, the court’s decision did not confer any specific rights on the National Beekeepers’ Association. This is different from cases where, for example, the court has decided that the successful party should be granted some licence or permit, or other special status. Second, the National Beekeepers’ Association’s challenge did not call into question the reasonableness of the Ministry of Agriculture and Forestry’s risk management decision under the Biosecurity Act. Therefore, it is difficult to see what would be gained by repeating the lengthy and costly process required to develop a new import health standard.

This bill provides a solution to the unworkable legal framework created by the Court of Appeal’s decision. The border system is now exposed to legal vulnerabilities; they threaten disruption to our trade. In order to sort the situation out, it is important to pass this bill as quickly as possible. Although we should proceed with haste, it is also important that organisations with an interest have an opportunity to have their say. In order to do that, I intend to move that the Primary Production Committee consider this bill for a short period and report it back to the House on or before 17 March. I commend the bill to the House.

Hon DAVID CARTER (National) Link to this

The National Party will support the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill to the Primary Production Committee. At the outset I thank the Minister for Biosecurity and his officials for involving the National Party at an early stage with briefings as to the complexity of this legislation following a Court of Appeal decision that came out late last year. It is pleasing that an issue as important as a biosecurity issue is, on this occasion, discussed quite freely, particularly between the two major parties, because too often over recent years we have seen biosecurity made an issue of politics when in fact all of us here acknowledge the risks to New Zealand of any biosecurity breach.

When the position was put to the National Party caucus, we said we would support it to select committee, provided it was legislation that went before the select committee and gave an opportunity for the industry to be heard. At one stage there was a suggestion that because of the urgency of the matter—and I wish to discuss that shortly—maybe there was not time for the select committee to have the luxury of hearing from submitters. That position was unacceptable to the National Party, particularly in view of the fact that the National Beekeepers’ Association of New Zealand has incurred considerable costs to have a victory in the Court of Appeal, and because of this legislation it will now, I think, be a hollow victory.

I accept there is some urgency and I am surprised to hear the Minister today giving us a report-back date of 17 March; that was not what was discussed between myself and the Minister’s office, but I am conscious of the need for a tight timeframe and we will certainly do our best within the select committee process to cover that off.

There are two types of importations into this country. There are the deliberate importations and there are those that are inadvertent or not deliberate. The hazardous substances and new organisms legislation, which was, of course, passed under the previous National Government, was groundbreaking legislation. In fact, I think I could say it was the first of its type anywhere in the world. That legislation was designed to cover off deliberate importation whereby an importer wanted to bring something into this country that was recognised as a new organism. There have been criticisms around the complexity of that particular piece of legislation. In fact, the Primary Production Committee over some months did an investigation into the effect of the hazardous substances and new organisms legislation in slowing up some importation, particularly in regard to seed varieties coming into this country.

There are, then, the other types of importations that come in without us knowing about them—the particular nasties that could put the very economy of this country at risk. They, of course, are covered by the Biosecurity Act. What we saw through this particular court case brought by the National Beekeepers’ Association of New Zealand was a challenge to a decision of Biosecurity New Zealand regarding the importation of honey from countries outside New Zealand. It took the opportunity of finding what clearly is a technical difficulty between the two pieces of legislation whereby it was able to argue that a particular new organism not previously known in this country could accompany—in fact, in the Court of Appeal case it said it will inevitably at some stage accompany—the importation of honey into this country. The beekeepers said that that particular organism had not gone through the hazardous substances and new organisms process, and therefore on that basis the association won through the Court of Appeal.

That was in my mind a very innovative and clever argument advanced by the Beekeepers’ Association, but it did not, in actual fact, take a challenge, as the Minister alluded to, to the original decision of Biosecurity New Zealand around the import health standard, which is perhaps the way one would have expected it to be argued, and that is the way many others have argued it in the past.

We, as National Party members, were not prepared then to see the industry not have a chance to come and explain its situation and the fact that this legislation, in effect, overturns its win in the Court of Appeal. I have been speaking to the association today and I know that it intends to come before the select committee when the committee meets in a couple of weeks’ time.

The development of import health standards has been a real issue that the select committee has brought to the attention of the Minister, Biosecurity New Zealand, and the Ministry of Agriculture and Forestry, because the progress involved in the development of import health standards has been too slow. A report that the select committee tabled before this House last year pointed out that as of 2006-2007 over 200 import health standards were in the pipeline. As a result of the select committee report to Parliament I note that the Government did advance some additional resources in the last Budget to tackle that backlog in the development of import health standards.

The select committee also took the opportunity in the examination of the hazardous substances and new organisms legislation to ask that the Ministry of Agriculture and Forestry take stock of the competency of the people employed within the ministry as to whether they had the ability to develop and progress these import health standards. The Government did come back and agree with that comment from the select committee, but I am not sure that the recommendations have gone any further than the Government’s telling the select committee that it had it right.

What we now have, and I referred earlier to the urgency around this legislation, is a situation where the Ministry of Agriculture and Forestry has stopped issuing all import health standards or amending those that are in existence. That is a serious issue for those in this country who want to import product into New Zealand. I had one case today of a fisheries factory calling me saying it wanted to bring something in that was essential to its business. It has been held up completely, following the court case of 4 December last year, so I accept there is an urgency. But to be fair to the Minister, he could have worked with his officials and had this into the House prior to Christmas. But be that as it may, we now have it before the House tonight, and it is our job now to progress it through the select committee process with alacrity, and we will do that.

The issue I will be teasing out in the select committee is around the decisions made by the Ministry of Agriculture and Forestry in the development of import health standards. It does seem to me—perhaps not so much in the bee case, but particularly in the pork case, which I am aware of, and I suspect we will have the Pork Industry Board making a submission to the select committee—that in some of the development of these import health standards, the decision by the ministry to allow importation of more and more product into New Zealand tends to be coming more and more risky. That may well be a perception, and I am prepared to accept that at this stage until we have a chance to talk more to the officials. They have the full scientific information before them, and these decisions should not be made on a motion, should not be made on perception, and certainly should not be made on the basis of one industry trying to protect itself from fair and reasonable competition from other imports and exports, and I acknowledge that the full scientific information is sometimes not available to me as a member of Parliament when it is available to the Ministry of Agriculture and Forestry.

But having said that, from watching the issue over a number of years, I do not think we want to become so pure around the issue of free trade that we actually risk bringing into this country diseases and organisms that are not here now and that will have a financial implication on the producers of this country. That will be something I will certainly be wanting to tease out through the select committee process.

I acknowledge the report-back date of 17 March put on the select committee tonight by the Minister. It is our intention, therefore, to work on this both with officials and with industry on one day, and one day only, but it will, of course, depend on how many submissions we actually get. There is no point in the Government holding a gun to the head of the select committee, allowing us to call for submissions from industry, and then not giving us the chance to adequately hear the concerns of industry if we get a number of submissions. We will then, of course, try to meet the deadline that has been imposed on us, but I say to the Labour Government, and particularly to the Minister, that having got it back before the House from the select committee we do not want to see what has happened in the past with other legislation whereby the select committee has been asked to rush its job, and then we find that the legislation sits on the Order Paper and does not progress through the further stages that must be completed in this House.

Dr ASHRAF CHOUDHARY (Labour) Link to this

I rise to briefly speak on this bill, which has been put together by the Minister. I think it is very important that this matter be clarified, because clearly there is an issue in this case with the Hazardous Substances and New Organisms Act and the Biosecurity Act. The Hazardous Substances and New Organisms Act clearly relates to the deliberate introduction of new organisms, and the Biosecurity Act relates to the incidental release of any new organisms in the country.

This bill is to go to the Primary Production Committee, and after listening to Mr Carter I have to say that that committee has worked very well during this term. It has worked very constructively and cooperatively on many of these issues. I am sure we will endeavour to come to some conclusion on this bill by the date of 17 March, which the Minister has suggested. But clearly we will have to hear from the key players in the industry, and I think it is important and fair that we do hear from those in the industry who have something to say about this bill.

This legislation will be very important as this country becomes more global in its trade and people travel widely, and it will be particularly important in relation to climate change. As a scientist myself I see that the international climate change situation could bring a whole lot of new issues to the forefront in this nation as we deal with new organisms, and also, possibly, with any incidental release or introduction into this country of new organisms. We have to respond to any emergencies or difficulties that may come our way. Clearly, this country has been dependent for a long, long time on the release of new organisms, particularly in the area of pasture over the years. As a scientist I know that we have dealt with many new species of grass, clover, and other plants—flora—for our animals in this country. There is always a need to look at new organisms that are more suitable for extra pasture production and animal production.

So, clearly, biosecurity is a very important issue for this country. New Zealand is more reliant on primary production than any other developed country that I am aware of, because our exports come primarily from agriculture, horticulture, and, of course, forestry in recent times. Our indigenous flora and fauna are very precious to New Zealanders and tourists alike. A number of tourists come to this country to see the variety of flora and fauna and native species that we have, and they are core areas of our natural heritage and culture in this country.

The biosecurity strategy that we have had in place since 2003 has widened the mandate of the Ministry of Agriculture and Forestry in biosecurity, to give it clear accountability for the management of the whole biosecurity system. That covers not only primary production but also the marine environment, human health, and indigenous flora and fauna. The Ministry of Agriculture and Forestry has the capability to assess and manage the risks from passenger organisms. The ministry also has lengthy experience in this role, as I said earlier, as we have been dealing with these issues for many, many years. The ministry employs a lot of staff who are highly qualified in various fields, and in the biological sciences, to look into these issues. It is also worth noting that the legal challenge—in this case, the court case—did not call into question the Ministry of Agriculture and Forestry’s risk management decision, but, rather, focused on interpreting the scope of the two Acts that are in place: the Hazardous Substances and New Organisms Act and the Biosecurity Act.

Clearly, this bill is designed to clarify a number of those areas. This Government has a record of providing leadership and a vision for the future in terms of our agriculture and biosecurity, particularly in respect of the environment. The Acts we have in place now ensure that the environment of this country is protected, that the marine, forestry and pasture areas are maintained, and that the water bodies and lakes of this country will be in a more pristine condition. There is a very clear role here for the Ministry of Agriculture and Forestry people and the Environmental Risk Management Authority people to ensure that no organisms are introduced into this country by incidental means, and the Biosecurity Act and the clarification of the legislation contained in this bill provides for that.

I congratulate the Minister on taking an initiative on a matter that is very important for our bee industry, particularly through this bill, which provides further security for our nation. Thank you very much.

SHANE ARDERN (National—Taranaki-King Country) Link to this

Along with my colleague the Hon David Carter, I rise also to support the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill going to the Primary Production Committee, which, of course, David Carter chairs. I ask that select committee, because I am not a member of it, to please give due consideration to the concerns that I know the submitters will raise. I have some concerns myself, and I intend not to run over all of the concerns that were raised by my colleague but to raise a few new ones of my own. The whole process has been a little bit too hasty. I am a little anxious that despite the fact that the committee will advertise to receive submissions as soon as it receives the bill, submitters will not be given due time to consider some of the detailed issues that I am sure they will raise.

There are some bits of information that I think misrepresent the Court of Appeal case. One is that the Ministry of Agriculture and Forestry was required by the court to withdraw its import health standards or to not issue any new import health standards. My understanding is that that was not the case; the case was that the Ministry of Agriculture and Forestry chose not to issue new import health standards on the basis that, of course, those import health standards could be challenged, and that is quite different. They might or might not have been challenged, but they could be challenged.

So in the process, I think it is overwhelmingly agreed that the Court of Appeal case identified a couple of areas within the two bits of legislation—the Biosecurity Act 1993 and the Hazardous Organisms and New Substances Act 1996—where there was an overlap. But we need to go back in time and look at the history of why those two particular Acts were set up in the way they were. The Hazardous Organisms and New Substances Act was set up, primarily, to investigate known new organisms that were going to be deliberately imported into this country—deliberately or, as is stated in this case, as a passenger. The Act was set up with that purpose. The reason for that is that at any one time the Ministry of Agriculture and Forestry cannot and never will have the competency level on every single potential new organism that someone may wish, or may not even wish, to import into this country. So, therefore, the original purpose of those Acts is as sound today as it was when it was originally set up.

In this case, the Paenibacillus alvei was well known, I would have to say, by the Ministry of Agriculture and Forestry, when it put together the import health standard for the importation of honey—primarily from Australia, but not just from Australia; from around the world—that potentially could carry European foulbrood. Despite the fact that the ministry said that its import health standard was robust, the Auditor-General, on a number of occasions, has had a different view, and there have been breaches of import health standards in recent times. We all remember the case of a whole pallet-load of raw pork meat arriving on supermarket shelves in Tauranga from Korea, which potentially could have been devastating to the New Zealand economy. So import health standards can and have been breached.

So, really, what the National Beekeepers’ Association was saying when it disputed the science around the importation of honey from Australia was that it did not have faith in the system that the Ministry of Agriculture and Forestry had said would be foolproof, and the association has a reasonable point. The association also highlighted in that process the fact that some honey carries this new organism known as Paenibacillus alvei, and it could have some devastating effect. In fact, there has been research internationally, which the Ministry of Agriculture and Forestry has been aware of, to see whether Paenibacillus alvei could be used as a biological control against some insects. Clearly, that research would not have started, or would not have taken place, had it not been for the fact that there was some knowledge about this new organism or its potential effects.

So the question at this time is why the Ministry of Agriculture and Forestry, given the high profile of this case—a very high political profile—the protesting to Parliament, and all the rest of it, did not just subject this particular case to the Hazardous Substances and New Organisms Act, because at any time it can decide what should or should not be subjected to the Act. Why in this case was a decision taken just to ignore this Paenibacillus alvei and allow it in as an inconsequential passenger—call it what one will—of the importation of honey from this destination? There is further evidence to suggest that that is the wrong decision.

I guess the whole crux of this debate has been around the fact that the Ministry of Agriculture and Forestry sailed ahead despite the overwhelming concerns, and in this case they related to two industries, because the pork industry was extremely concerned about a potential import health standard that is about to be developed in regard to importing unprocessed pork meat. One has to ask these questions, given the known effects of a devastating bacteria or disease in our bee colony.

However, it is not just about the honey industry—because this debate, particularly in the commentary floating around, has been honed down to the honey industry—but also about the potential effects for all of our primary industries, for all of our land-based industries. What seems to be missing in this discussion, particularly around the import health standard, is that bees do not just produce honey but also pollinate our agricultural land-based pastoral industries. The side effects of having a collapse of our bee colony, as is being experienced in other jurisdictions around the world, would be huge. Bees also pollinate our kiwifruit industry and our horticulture industries. Goodness knows what other effect this kind of disease importation could have on those industries, or on the other industries we have spoken of.

So I say to the Minister that yes, the bill should go to the select committee, but please give the select committee the time it needs to consider some of the unknown ramifications of what the experts in this field might bring forward. Please give the scientists a chance to express their concerns about what may or may not come about as a result of importing honey from Australia, in particular, and the potential importation of European foulbrood disease. Please give the committee the time to have a look at what could happen if we had a collapse of our bee colony in this country, as has been experienced in other countries.

Furthermore, why would one would take the risk, when we have in this country what one could call an organic brand—that seems to be very popular terminology these days—with the honey that we export? Surely we must be able to make exemptions when the science itself, and clearly the science in this case, is debatable, regardless of the ministry’s findings around the import health standard. Surely we must be able to make a case on an international stage, because clearly our international competitors do. One has only to look across the Tasman at the apple debate that is now before the World Trade Organization to know that other jurisdictions do that.

We have in this country a clean, green image that we must protect. It is a market advantage. Our export honey is organic. If European foulbrood disease were to take hold in New Zealand, then our honey would be treated with antibiotics, the same as is done by other exporting nations. This is a niche opportunity for us that we should not damage.

We have listened for months and years to stories about the risks to this country of genetic engineering, and there is hysteria when one talks about that, yet we can import known hazards into this country in the form of various organisms, and, at this time, that does not seem to constitute the same threat in the eyes of those who create such a noise around these other things.

I ask the Government to please consider those submissions—particularly the technical ones that I am sure will come from the various industries. Please give them due consideration in that select committee process. It is not too late to turn around this import health standard. It is not too late to allow one small industry in this country to have a little bit of a win. It will not reflect badly on the Government—quite the opposite. The industry has had its day in court and won.

R DOUG WOOLERTON (NZ First) Link to this

It is, as usual, a pleasure to follow Mr Ardern, because he is a practical and sensible man. He talked sense in that last speech, and that is what we expect of him. We in New Zealand First will, of course, be supporting the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill, because we cannot have the untenable situation where our imports and exports are impeded in any way at all. Quite frankly, the sooner the bill is passed, the better it will be. I am very pleased there is to be a submission process, albeit a short one. It is important that people can come here, have their say, and be listened to. One of the strengths of our Parliament is that it has input from citizens, and I think that process should be upheld whenever it can be—even in a crisis situation.

I know, and the National Party knows, even if it does not admit this, that this administration has hugely increased the spend on biosecurity—not only the spend on biosecurity, but also the effectiveness, manpower, and the position it holds in the ranking importance of ministries in New Zealand. In the area of biosecurity, one would be hard-pressed to moan that it has not had every reasonable resource it has asked for. However, such is the increase in travel—in tourism and in people and goods over our borders—that it is never enough, and there is always some problem that we have to deal with.

The point I want to make follows on from Mr Ardern’s—that is, the bee-keepers took a case in order to make a point. They took a case, made their point, and won their case, but the reason they took it stemmed from their immense frustration with successive regimes because they believed they were not being treated well in this country. They have a great product, and they are afraid that more organisms will come in that may damage their industry. I know that Mr Ardern has mentioned that concern, and I share it.

I make the plea—and I choose my words carefully—that it would be nice if the Government of the day could consider that the court has seen the worthiness of the bee-keepers’ case. As Mr Shane Ardern said—I will use slightly different words—if the Government could put away for a moment the ideology of the pure, free market and just look at this case, it would see we have a niche market in the world for our honey. Even in New Zealand it is understood, and is used as a trade argument, that our honey—particularly our tea tree honey—is so pure that in many cases it is used as an antiseptic, as it has healing properties. It would be nice if the Government could put aside its ideology for a while and perhaps look on this case as being not so much a technical case, which is what we have been hearing today, but a message from the bee-keepers of this country to please do something to support them and to help them to keep their industry profitable. They are doing a good job, and they should be recognised for that.

If Parliament passes this legislation—which does need to be passed—and then does not treat bee-keepers with respect, they will see that as a slap in the face and we will be doing ourselves a disservice. Certainly, we will be harming an industry that I believe is, after all, one that does only good. If Mr Shane Ardern or any other member can think of one harmful aspect of the bee-keeping industry, I would like to hear about it. I cannot think of one, apart from a child perhaps stepping on a bee in a field of clover. Otherwise, I cannot think of one negative aspect of the industry. Surely if any industry deserves sympathy, this industry does. If we pass this legislation—and we will—and if the Government makes an accommodating factor for bee-keepers, we will have a win-win situation. Thank you very much.

METIRIA TUREI (Green) Link to this

Tēnā koe, Mr Assistant Speaker. The Greens will be supporting this bill at the first reading—and we make no guarantees about further support—because we agree the current law needs some clarification, following recent court decisions. It seems clear that the original intention of Parliament was that the Hazardous Substances and New Organisms Act and the Biosecurity Act would cover intentional and unintentional introductions of various organisms, respectively. We have some reservations and concerns about the possible unintended consequences of this amendment; there may be better ways to resolve the ambiguity and the difficulty without reducing the standard of risk assessment. We expect that these issues will be canvassed at the select committee, and because we are so concerned that they are properly canvassed, and that we have good law in this area, we do not support the proposal to shorten the select committee process. So we will oppose that motion.

This bill needs to be understood in light of the recent court judgment in respect of Paenibacillus alvei in honey, where the Court of Appeal said that the unintentionally introduced new organism is a known new organism and therefore requires approval under the Hazardous Substances and New Organisms Act, prior to its introduction into New Zealand, even if that introduction is unintentional. The court concluded that the biosecurity import health standard for honey is contrary to the Hazardous Substances and New Organisms Act and therefore the honey cannot be legally imported.

Despite some disagreement about the level of pathogenic risk that the bacterium might pose, there was agreement that the risk of introduction of the bacterium itself is inevitable; it will arrive in this country eventually if we continue with the honey imports, and it will have some effect in New Zealand.

The court recognised that the organism is a new organism under the Hazardous Substances and New Organisms Act and that its use or development in New Zealand would require approval under that Act, but the risk assessment of an organism that may unintentionally accompany a good such as honey was designed to be dealt with under the Biosecurity Act, not the Hazardous Substances and New Organisms Act. As a result the Ministry of Agriculture and Forestry and Biosecurity New Zealand are in a very difficult, technical position of not being able to exercise fully the requirements under the Biosecurity Act because of the decisions of the court. That is just some of the background.

It is clear therefore that some kind of legislative change is necessary, so we will support the bill to achieve that. But the bill needs some more consideration, and one area is the logic of the stark differentiation between intentional and unintentional introduction of new organisms. It is true there are differences in the potential vectors of intentionally and unintentionally introduced organisms. We have seen some unintentional introductions in this country, maybe on a large scale and released in many areas and in great numbers for a particular purpose, whereas an unintentional introduction may be small in number and very localised, and might have much less chance of surviving in New Zealand’s conditions or be better able to be contained and controlled. None the less, a new and damaging organism, whether it is here on purpose or by accident, may have the same effect. We have seen that to be the case with the invasive and highly problematic algae didymo that was accidentally, unintentionally, introduced, and although it might have been only a tiny amount in a particular place at one place, it is now very well established in the South Island rivers.

So the potential impact of a new organism, regardless of how it gets here, is not necessarily greater just because it was brought in on purpose. The risk is no less real simply because of the way it has been introduced into our country. Indeed, the reverse argument may also hold true in some cases; more will be known and assessed about an organism’s nature and potential impact if it is assessed for its intentional introduction than if it arrives accidentally. The more we know, the more ability we have to respond quickly and effectively to contain and control that biosecurity breach. Clearly, didymo is a classic example of the sad failure to act swiftly and decisively when that algae arrived and was detected.

There are, potentially, alternatives to dealing with the problems that the Ministry of Agriculture and Forestry, Biosecurity New Zealand, and the Government in general have, as a result of the court’s decisions. Perhaps the Hazardous Substances and New Organisms Act could be better amended to allow the Environmental Risk Management Authority to assess unintentional organisms. It is not what it is designed to do but it could potentially be expanded to do that. The Hazardous Substances and New Organisms Act does have a higher test threshold for assessing new organisms than the Biosecurity Act does. Although the Hazardous Substances and New Organisms Act is not currently designed to assess the risks of passenger organisms, none the less it could do that job, but in part only if it is able to be tested against the benefits of its carrier good. For example, the Hazardous Substances and New Organisms Act test for a new organism weighs the positive and adverse effects of the organism, in isolation. It would struggle, for example, to approve the honey bacterium, on which the case was based, because the bacterium has no known benefit to the country. The benefit is solely in being able to bring the good in itself—the honey. That is not part of the consideration that the Environmental Risk Management Authority can undertake. So one option would be to enhance the authority’s mandate and process to allow it to deal with risk assessments for new organisms brought in unintentionally.

The alternative is that the precautionary principle inherent or explicitly set out in the Hazardous Substances and New Organisms Act could be introduced into the Biosecurity Act, and that just in and of itself is not a bad idea. The court noted that Parliament’s intention when enacting the Hazardous Substances and New Organisms Act and the Biosecurity Act was that passenger or associated organisms were to be dealt with under the biosecurity legislation, but it noted that the Hazardous Substances and New Organisms Act contains a precautionary principle, albeit a weak one.

So surely it is desirable that the assessment of risks for all organisms, whether intentional or unintentional, are exercised in a way that favours caution where there is uncertainty, and the question is whether the Hazardous Substances and New Organisms Act requires strengthening in this regard. These are issues that could all be canvassed at the select committee to make sure we have good-quality legislation.

We do not treat amendments to biosecurity and hazardous substances and new organisms legislation lightly. The protection of New Zealand’s environment is paramount; and security, particularly of our immense primary production sector, is of great importance. Despite what some may say about the Greens, we do believe that the primary production sector is very important.

Although on the face of it this bill would seem to clarify the issues for Parliament around this legislation, there is always the chance that legislation like this will have unintended consequences. That is what the select committee process is for—to work through those by getting the feedback from the community, those who are engaged with it and deal with these issues all the time to provide that feedback to parliamentarians so we can assess the practical implications, the practical risk, and where the unintended consequences might be.

One example might be in clause 12 where the Act currently prohibits unapproved new organisms, but the amended legislation simply states “restriction”, and it would be worth exploring the extent to which the change in just that wording might have unintended consequences.

The Greens have had very little time to examine this bill in detail, so again we will be looking to the submitters to the select committee for their views on this. No doubt the bee-keeper community will have very serious concerns about legislation that overturns a court decision that was held in their favour, and we understand the importance of that but also we recognise that we must make good law, and there is a problem here that does need to be resolved.

We would like to know how this bill might affect New Zealand garlic growers, who are faced with difficulties in getting new seed while the garlic that is imported has the potential to bring in passenger viruses. How will it affect the New Zealand pork industry, with the risk of importing the porcine reproductive and respiratory syndrome virus into New Zealand? What will it mean for the honey industry, in practice, and what will be the risk to it from Paenibacillus alvei?

The Greens also want to mention briefly that we are very pleased that the amendment bill differentiates GMOs, and ensures that GMOs will remain completely under the Hazardous Substances and New Organisms Act, whether they are brought into New Zealand intentionally or unintentionally. That is a very important security measure for New Zealand, for our environment, and for our primary production areas. It is difficult to think of a GMO coming in as a hitchhiker, but that may be possible as more GMO vaccines are being developed and as technology progresses. So a whole range of issues need to be canvassed.

The Greens will support the bill to go through its first reading because there are good legislative reasons why that has to happen. But we will not support a shortened select committee process, because it is so important that the community must have the right to have a say—not just selected members of the community but the whole community who may be involved. Thank you.

Hon TARIANA TURIA (Co-Leader—Māori Party) Link to this

Tēnā koe, Mr Assistant Speaker; tēnā tātou katoa. It is somewhat ironic that the issue at the top of the Order Paper today in the Beehive features what has become known as the New Zealand icon, the bee. We know that every gift shop hosts the legendary Buzzy Bee, or Te Pingipingi Pī as our kōhanga reo know it, and Diabetes New Zealand’s mascot is the soft toy Barnaby Bee. So it is probably little wonder that it has become an issue of national significance to put in place measures to manage the risks posed to the bee-keeping industry. It is an industry that has been established in New Zealand for well over a century, even if it was originally resisted as yet another fad for the new colony. And it is an industry in which tangata whenua are playing an increasingly significant role, with new directions and trends establishing our unique role in international markets.

A classic example is Whakaari Beekeepers Ltd, established in late 2002 and based in the isolated coastal community of Whangaparāoa. Up until that point, although bee-keepers had routinely placed their hives on tribal lands, tangata whenua had not exactly been amassing untold fortunes from the industry. It was common for bee-keepers to leave pots of honey as a rental payment for using the land, which was not exactly making anyone a millionaire. So in 2000 Eddie Matchitt figured that local landowners should be able to benefit from the bees. Matchitt and his mates were also keen to support a district that suffered from high unemployment, where most of the income was from benefit payments.

I want to share the experience of Whakaari Beekeepers, as it is a good example of a new enterprise that can create wealth and employment, develop self-reliance amongst the people, support the Māori bee-keeping sector, and maximise returns from a local, abundantly available resource. In short, the enterprise was all looking good until Varroa jacobsoni came along. The risk of the varroa mite to bee-keepers and the industries they provide pollination services to has been a prominent issue in the agricultural sector for close on a decade.

But, as this bill demonstrates, there was to be another obstacle fly in the path of the bee—the bacterium Paenibacillus alvei, which is often found in association with the virus European foulbrood, a known and dangerous pest to bee larvae. The National Beekeepers’ Association believed that, given that risk, Environmental Risk Management Authority approval under the Hazardous Substances and New Organisms Act was needed prior to honey and bee products being imported from Australia under the import health standard issued by the Ministry of Agriculture and Forestry back in 2006. As is now well established, the Court of Appeal decision in the National Beekeepers’ Association of New Zealand v the Chief Executive of the Ministry of Agriculture and Forestry upheld this point and, as such, the ban on the import of honey and bee products from Australia has remained.

This bill is being debated today to respond to the unique set of issues that came out of that case about the way in which such risks are managed, and about the protections in place to care responsibly for our flora and fauna. As the last 200 years have demonstrated, hordes of seemingly innocuous organisms have been introduced, only for us to find dangers at a latter stage. We can think about possums, gorse, rabbits, ferrets, the household cat, and so on. In fact, in the last 5 years around 230 new pests have infiltrated our borders.

The current regulatory system is not working well. The legislation will bring together the current mechanisms under the hazardous substances and new organisms legislation and the processes in the Biosecurity Act. In doing so, it responds to the risks that emerge when organisms are deliberately imported, as well as those that may arise incidentally in association with traded goods.

I posed the question earlier as to this discussion being one on the national agenda, and I consider it so for two key reasons. The first is the economic and commercial imperative not only for the honey industry but for continued crop pollination and, more broadly, across other sectors of the agricultural and horticultural industries. The National Beekeepers’ Association has contended that in the face of insufficient information on the risk of any organism, importation should be denied until such information is obtained. In assessing the level of risk posed by Australian honey, the association relied on research suggesting that Paenibacillus alvei can be linked to human respiratory disorders and that it has also been suggested as a biological control of insects, indicating its impacts on the wider environment.

The common association with European foulbrood also cannot be discounted. European foulbrood causes bee larvae to rot and die, or results in the birth of a weakened bee that weakens the hive as a whole. Treatment for European foulbrood is with antibiotics, which would have a huge impact on the antibacterial properties of honey, and particularly of mānuka honey. We have specialist international markets for our mānuka honey, specifically because it is free of European foulbrood and has not been compromised by antibiotics.

The second reason why the management of biosecurity risks at our border should be an issue of national importance is the importance of active environmental protection to keep our natural resources and environment healthy, safe, and intact for everybody. This bill will have the effect of setting in place import health standards to ensure that any risky goods are cleared before entering Aotearoa, effectively overturning the Court of Appeal decision that is currently keeping Australian honey and bee products out of this country.

Risks from all organisms imported incidentally in association with imported goods will be managed by the Ministry of Agriculture and Forestry under the Biosecurity Act. Any organisms introduced through the approval process of the Environmental Risk Management Authority will be dealt with through the Hazardous Substances and New Organisms Act. But there remains a significant gap in the current statutory scheme that needs to be addressed, and that is not raised in the current version of this bill—that is, there needs to be a clear process that will allow the Ministry of Agriculture and Forestry to refer risk issues from known, incidental, new organisms to the Environmental Risk Management Authority for investigation and approval. If the authority does not have enough information to make that call, such information should be sought or research should be commissioned, instead of dealing with a gap via a bill to push concerns under the table.

Rather than an either/or system, there need to be workable connections between the Biosecurity Act and the Hazardous Substances and New Organisms Act. Given the issues we have seen recently with asbestos, painted apple moth spray, dioxin poisoning, and other intrusions in the environment, we need to ensure we are putting in place proactive measures to prevent such risks from impacting on the sector before any other problematic organisms arrive. The 4-year investigation by the Ombudsmen into the impact and effects of aerial spraying of pesticide should have given sufficient warning to the Government of the need for ensuring future protection of crops, people, and land, and for investing in the safety of affected populations.

We in the Māori Party will support this bill to go to the select committee, in order for a wider resolution to border security to be discussed and found, but we cannot complete our analysis without reminding the House of our desire that the biosecurity statutory framework should include a total prohibition on genetically modified organisms in the interests of a GE-free New Zealand. Only then can we be really proud of our environmental clean, green image. Kia ora.

MOANA MACKEY (Labour) Link to this

I am pleased to stand to take a quick call on the first reading of the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill. Quite a long path has led to this legislation being here in this House. Again, it reminds us that a careful balance is required when we are dealing with biosecurity.

Although on the one hand I think everyone in this House has acknowledged the importance of bee-keepers and the role they play in the New Zealand economy, they are not often the first people we think of when we think of the primary production sector. Certainly, without bees to pollinate the clover, which carries out the important environmental act of fixing nitrogen in the soil, we would be in a very dire situation indeed. With the varroa bee mite wiping out the feral bee population, our bee-keepers have felt under some pressure, as have bee-keepers around the world.

It is important to acknowledge that this situation is not unique to New Zealand. We have seen, particularly in countries like the United States, that bee-keepers now charge for their services, as do bee-keepers here. I believe that kiwifruit pollination is often paid for. A lot of bee-keepers in America have moved to doing that; they have not been able to make a lot of money from selling the honey itself, so they have moved to making money from the pollination service that the bees provide. I join everyone here in acknowledging the very important role that bee-keepers play.

But at the same time I also know, as a former member of the Primary Production Committee, that we need to be equally careful on the other side of the coin. That very important balance needs to be protected and preserved in whatever work goes on at the select committee. I was very pleased to hear the Minister for Biosecurity acknowledge that the bee-keepers had taken a judicial review, and had achieved a result that meant that the import health standard that had been introduced that would have allowed Australian honey into New Zealand was put on hold for the time being. That is not to say it would have stayed that way had the Environmental Risk Management Authority gone through the process; the authority may well have gone through the process and the import health standard would have taken effect.

Effectively, the stay that was put on that import health standard will not be there when this legislation is passed. I was pleased to hear the Minister acknowledge that it is rare that we pass legislation in this House that does that, but unfortunately that Court of Appeal decision has thrown up some very difficult circumstances with far-reaching implications for import health standards. I know, again as a former member of the Primary Production Committee, that one of the biggest criticisms we always had of the Ministry of Agriculture and Forestry, whenever it came before us for a financial review, was the length of time taken to process import health standards. The threat of judicial review hanging over every single import health standard that came before the ministry could only lengthen the time it took, because the ministry would want to make sure that it was going through the proper process. It also would mean that everything would be held up in the courts for a lot longer—every import health standard could possibly be judicially reviewed. I agree with the Minister that it is only right that this Parliament confirms what we always believed to be the case under the hazardous substances and new organisms legislation: that organisms unintentionally brought into the country were not meant to be covered by that legislation.

I remember when we first went through the import health standard process with the bee-keepers. It was a process that I was quite involved in; local bee-keepers had come to me for assistance. As the Minister will well remember, we had a number of meetings in his office where we challenged ministry officials on the questions that bee-keepers were asking about the efficacy of heat treatment of honey to remove European foulbrood, which is the disease that was worrying the bee-keepers. As members have rightly pointed out, we have a thriving mānuka honey industry, and if we have to start dosing our hives with antibiotics, that will damage it. The ministry officials had really done their homework. As we have seen, the science was backing up and backing up, meaning that the Australians were saying to us that they can now prove that heat treatment kills foulbrood, and that Western Australia does not have it. Just as we have found with our case to export apples to Australia, where our scientific evidence has been showing time and time again that adult apples cannot carry fire blight, it became very, very difficult for us, as a matter of trade, to continue to keep a product out when the science was telling us overwhelmingly that there was no risk there, that heat treatment would kill foulbrood.

I find it interesting that the judicial review was not taken on European foulbrood; it was taken on a companion bacterium. Initially, I understood that it would be European foulbrood that would be challenged. I do not know whether that is telling. I know that the bee-keepers were worried that one of their expert witnesses had not been taken enough account of, and I can only assume that they felt that that challenge would not have held up in a court of law, because it was not the step that was taken here.

I would like some clarification from the next National Party member as to whether we have seen quite a significant shift in National’s trade policy and it is now saying that we should have exceptions in certain areas to not allow certain products in—for example, Australian honey. The feeling I was getting from the National Party was that its members were saying that actually we do not need to be so pure on this. The line that we have always taken has been that we do actually need to be pure. We are a very small country. We have a very open market.

ERIC ROY (National—Invercargill) Link to this

I would like to make a contribution to the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill. I do not see anybody else positioning himself or herself for a quick call, so this may well be a summing-up of the issues. I just acknowledge the comments made by Moana Mackey. Such an erudite and candid response makes me wonder why she was not promoted in the last Cabinet reshuffle. I thought she certainly made a valuable contribution to the debate. It is interesting to note that this bill is being supported by all parties around the House to be referred to the select committee. I think that does indicate to us that there is an issue. Although this is a hazardous substances, new organisms, and biosecurity bill, it is really about trade and trade issues. I think I should set out some principles for a start, and indicate where they interface with the legislation and the need for this bill.

New Zealand’s lifeblood is trade. Clearly, our export earnings are very much steered by the performance of our primary industries. We rely on trade much more than the countries that export to us do. This situation has arisen over the importation of honey into New Zealand from Australia. We could be very, very tempted to say that because there is an issue around fire blight in apples—we cannot get apples in there; the science on that is not very robust—and the Australians pinched Robbie Deans, this would be a chance to give Australia the flick. But there can be only one basis upon which international trade and phytosanitary and sanitary conditions apply, and that is the basis of science. We cannot afford to play minor games, because New Zealand’s prosperity is at stake in terms of having robust, reliable, and accepted standards for the phytosanitary and sanitary conditions around trade. That is the first principle. We need to have robust science, in terms of protecting not only our borders but consumers with regard to the products that we are keen to trade with.

The second principle is that we want to prevent any unwanted incursions into this country. Herein is a subject we could launch much debate around.

Then there is the issue of us needing a very clear road map to help us to bring in the products that we need in order to advance industry in New Zealand. There are a number of issues surrounding that. We require a number of things: new plant material, germ plasm, and chemicals. We are always looking for those things, and they fall into the area of hazardous substances and new organisms.

So accidental incursion falls into the lap of the biosecurity legislation, and the things we need an actual road map for fall into the area of the hazardous substances and new organisms legislation. We have had a bit of a crossover there. There needs to be a demarcation so we clearly understand where responsibility lies.

The issue surrounding this particular matter is about the incidental attachments—things coming in that, to all evidence, are not significant yet are attached to product. We have a situation now where the bee-keepers—as has been mentioned—chose to challenge an incidental attachment in court and say it should have been processed under the Hazardous Substances and New Organisms Act. The repercussions of that are quite clear and quite scary. Already we have been shown, in a briefing, a schedule that, I think, had nine items on it that were held up because of the threat of an incidental attachment and the need for those products to go through the hazardous substances and new organisms legislation.

I have mentioned how significant and important it is that we have a flow of trade. An entity could go to court over an issue relating to tourism and say we are should not have any tourists come in, because they may have an incidental attachment of dandruff, athlete’s foot, or anything else.

Hon MARYAN STREET (Minister for ACC) on behalf of the Minister for Biosecurity) Link to this

I move, That the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill be considered by the Primary Production Committee for consideration, and that the committee report finally to the House on or before 17 March 2008.