Anderton Jim: Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill — First Reading 
Anderton Jim: Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill — First Reading 
[Volume:645;Page:14326] 
Hon JIM ANDERTON (Minister for Biosecurity) 
: 
 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  
P 
aenibacillus 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.