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Anderton: Second reading, Biosecurity-Hasno bill

20 March 2008 Speech

Second reading, Biosecurity-Hasno bill

Madam Speaker, I move that the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill be now read a second time.

I would like to start by acknowledging the work that submitters and the Primary Production select committee have put into this Bill. For reasons that I will come to shortly, submitters only had a period of just over a week to prepare submissions, and the select committee effectively had a period of only two weeks in which to consider the Bill.

Despite these constraints, 53 submissions were received, from a range of interested organisations and individuals. Many of the submissions were substantial, and the select committee was therefore required to consider a number of significant issues in a short time period. I would like to thank submitters for their input, and to thank the Committee for its hard work, and for its careful consideration of the issues raised by submitters.

I am also very conscious that the Bill has generated substantial concerns, particularly in the beekeeping and pig farming industries. The Government acknowledges these concerns, and is happy to support the mechanism for independent review that the select committee has recommended in response to them.

I understand that a number of key concerns were expressed in submissions on the Bill, including whether the Bill is even necessary, or whether it is necessary to pass it urgently.

The full implications of the Court of Appeal judgment in the Beekeepers’ Association’s case last December are captured in the following statement by the Court:

“…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”.”

Some submitters considered that this statement by the Court does not create significant problems, and that the facts of the case taken by the Beekeepers’ Association were unique or uncommon.

MAF sought advice from the Crown Law Office immediately after the Court’s judgment was released in December. It was this advice that lead to the freeze on issuing any new import health standards under the Biosecurity Act and amending any existing standards. This freeze on new or amended import health standards is what makes it necessary for the Bill to be passed so urgently.

In considering the implications of the Court’s interpretation, it is important to bear in mind that, for many different kinds of imported goods, there are a large number of known new organisms that might be incidentally imported. To give but one example, there could be hundreds of known new micro-organisms imported in or on horses, in their intestines, on their coat, or in their noses. If the law as stated by the Court of Appeal is left unchanged, then all of those organisms would require an approval under the HSNO Act before horses could be imported into New Zealand. This is clearly unworkable and impractical, because the approval processes in the HSNO Act were not designed for assessing the risks posed by passenger new organisms, and as a result are not suitable for that task.

Given that some submitters had questioned the need for the Bill, the Crown Law Office advice was made available to the select committee. I have also become aware that other Members are interested in the reasons for the Bill, and for that reason I sent a copy of the advice to all Members at the end of last week.

A second and related concern has been around why this Bill needs to be progressed so urgently, given that there has been awareness of the problems relating to the interface between the Biosecurity Act and the HSNO Act for some time. Officials had been working on issues relating to the interface between the two Acts before the Beekeepers’ legal challenge commenced. The High Court judgment in the litigation found in favour of the Crown’s arguments to such an extent that no law changes were considered necessary. The Court of Appeal, however, found almost completely the reverse and this has triggered the need for the legislation before you today.

Another key issue raised by some submitters was to question why the approval processes in the HSNO Act could not be used to assess the risks posed by passenger new organisms.

This has been looked into thoroughly by officials from MAF, the Ministry for the Environment, and the Environmental Risk Management Authority as part of the work that was done before the Beekeepers’ litigation. The conclusion they reached was that HSNO Act approval processes are not appropriate for this task.

I set out in some detail why the HSNO Act approval processes are not suited to assessing passenger new organisms during the First Reading debate. I won’t repeat that detail here, but will make some more general observations.

The first point is that the HSNO Act has a decision-making process based on the particular new organism that is applied for. The Biosecurity Act has a decision-making process based on the kind of goods that are proposed for importation. The latter has therefore clearly been designed to consider the unwanted pests and diseases that might come in with imported goods, and the measures that should be applied to mitigate those risks.

Secondly, the sheer number of new organisms that are known to be associated with imported goods of various kinds would make it impractical to carry out a HSNO Act assessment for each of them. The biological reality is that many new organisms cross our border as incidental importations on a regular basis, without posing any significant risk to New Zealand. There are various reasons why the incidental importation of a new organism might present very low risks to New Zealand. Some examples are:

where the organism may enter New Zealand in low quantities in imported goods, and as a result there is a very low likelihood of it becoming established here
where the organism would not survive or reproduce in New Zealand, for example because the climate is unsuitable
where the organism is inconsequential, and would have negligible adverse effects if it did become established in New Zealand
where the organism requires a particular insect in order to spread, and the insect is not present in New Zealand.

It is much more sensible for these kinds of organisms to be assessed by MAF in an analysis of the risks posed by a particular kind of imported good, rather than to have each and every one of them assessed using the criteria and processes in the HSNO Act.

This touches on a third general point, which is that the risks posed by an organism when it is imported incidentally are different from the risks that are posed by the organism if it is deliberately imported. Some submitters questioned this, and pointed out that the effects of an organism are the same if it becomes established in the environment, regardless of whether it is imported deliberately or incidentally.

This is correct, of course, but what needs to be remembered is that an organism entering the country as an incidental import may have a very low probability of actually becoming established in New Zealand. Therefore, the overall risks are different, and in many cases significantly different. This is the kind of reason why the job of assessing risks from organisms that might be incidentally present in imported goods is quite different from the job of assessing an organism that is proposed for deliberate release. The likelihood of establishment must be considered in the case of incidental importations, whereas establishment in New Zealand must be assumed in the case of deliberate importations.

A number of submitters accepted that some legislative response to the Court of Appeal decision is necessary, but considered that the Bill should make more substantial amendments to the Biosecurity Act. The common theme behind these submissions was a view that there needs to be more statutory processes and criteria to guide MAF in the process of developing import health standards.

Some of the suggested amendments to the Biosecurity Act proposed that elements of the HSNO Act be adopted, such as the precautionary principle and the minimum standards. Other suggestions were for some kind of independent review of MAF’s decisions, or for an appeal right.

I would have been concerned if the select committee had sought to make major amendments of this kind to the Biosecurity Act. Adopting elements of the HSNO Act in the Biosecurity Act could have significant implications for the way that decisions are taken under the Biosecurity Act. A range of different stakeholders would have an interest in any such amendments, and I note that the select committee heard from submitters concerned about two specific import health standards when there are over 400 currently in force. This Bill was introduced as a measure to specifically address the problems resulting from the Court of Appeal’s decision, and needs to be passed promptly. I am therefore pleased that the Committee has maintained a focus on these essential amendments.

The select committee has, however, recommended that the Biosecurity Act be amended to make provision for an independent review process that can be used in cases where significant concerns have arisen during consultation over an import health standard.

MAF already seeks independent peer review of its risk analyses. I believe the new provision recommended by the Committee will be of value in helping to move forward with those few import health standards which become contentious. The details of the review process will be developed by 1 July in consultation with affected parties.

I also understand that the Director-General of MAF will shortly be offering the beekeeping industry a targetted review of MAF’s interpretation of the science in dispute around P.alvei, which was the key organism of concern in the Beekeepers’ legal challenge.

The last topic that I want to address is the validation of the import health standard for honey from Australia. A number of submitters saw this as the government legislating to deprive beekeepers of a court victory. I can certainly understand that perspective, and why Members of this House are concerned about this.

As I said in the First Reading debate, the Government did not take the decision to validate the standard lightly. I won’t repeat in detail the reasons for validation that I referred to during the First Reading, but I would like to emphasise that the Bill is based on the Crown Law Office advice that I have made available to Members. The select committee also received advice on this issue from the Legislation Advisory Committee, which concluded that the retrospective validation of the import health standard can be justified.

I would also note that the review to be offered by the Director-General of MAF concerning the science in dispute around P.alvei, is in some ways a reflection of what the beekeepers consider they won from the Court of Appeal decision, and that the Committee has recommended a solution whereby there will be no imports of Australian honey for 90 days, during which time the independent review can be carried out.

I endorse the Committee’s proposal as providing a practical way forward, while still being responsive to calls for an independent consideration of the dispute over the effects of P.alvei.

In closing, may I again thank submitters for their input, and the members of the Primary Production Committee for their hard work on the Bill and the sound judgement that they have brought to bear on some difficult issues.

There are difficult issues to contend with and we are not always going to make everyone happy. Indeed, biosecurity management at the border is a difficult balancing act with a range of competing interests, and it is essential that we do it well.

But the current situation, with an unworkable statutory regime for assessing passenger new organisms, and a freeze on issuing or amending import health standards, is unsustainable. I urge Members of this House to pass the Bill promptly.


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