Chauvel Charles: Environmental Protection Authority Bill — In Committee 
Chauvel Charles: Environmental Protection Authority Bill — In Committee 
[Volume:672;Page:18488] 
CHARLES CHAUVEL (Labour) 
: 
 In my contribution on this part I will deal with the question of the independence of the Environmental Protection Authority. In an earlier contribution I noted that three types of Crown entity are recognised by the Crown Entities Act. Firstly there are Crown agents which just give effect to Government policy. Crown agents are the closest type of body to the Crown one can get without having a Government department. The next layer of the onion out from the executive is an autonomous Crown entity. They must have regard to Government policy but are not required to directly implement it. Finally the last layer of the onion if you like is the independent Crown entity. They are independent of Government policy and the Minister must not give them directions unless he is authorised to do so by another Act. 
If we look at clause 7 we see that the clear intent is to set up the Environmental Protection Authority as a Crown entity. The way in which the provisions interact make it quite clear—and I hope the Minister for the Environment will be able to speak on this matter and confirm it—that the Government’s intent is that the Environmental Protection Authority will be a Crown agent; that is the closest type of Crown entity that is able to be brought within the powers of the Minister. It still has a board so it is not a department but it is amenable to ministerial direction. 
One of the concerns expressed by a number of submitters to the Local Government and Environment Committee was that this meant that the Environmental Protection Authority would be too close to the Crown that the authority would not be able to function with appropriate independence and that it would be much better to constitute the authority from the start as an autonomous Crown entity. That would mean that the authority would act independently of the Minister and that it would clearly be an authority that the public could have confidence in because it would not have to do what the Minister told it to do on any particular occasion. 
Supplementary Order Paper 242 which is in my name makes it clear that the authority is to function as an autonomous Crown entity in terms of the submissions that I have referred to. Labour members on the select committee were persuaded by the force of those submissions. If one has a look at the ways in which the authority will initially function one sees that the majority of the decisions that will have to be taken by the Environmental Protection Authority will be those that it inherits from the Environmental Risk Management Authority which is currently constituted under the Hazardous Substances and New Organisms Act.  
At the moment the Environmental Risk Management Authority is an autonomous Crown entity so if we adopt the Minister’s approach then we are moving a key function of the Environmental Protection Authority which is currently autonomous much closer to ministerial direction and control. If one thinks about the nature of the power—being responsible for dealing with applications around hazardous substances and new organisms—then the folly of this becomes immediately apparent. Why on earth would we disturb the wisdom of a previous Parliament that said these types of applications around genetically modified material for example must be dealt with on a completely independent basis to the Minister’s? The applications must not be anywhere near ministerial direction or control yet we are constituting an authority over which the Minister would have serious powers of control and direction. 
No justification is advanced in the regulatory impact material or in any commentary that I have seen for moving this power closer to the Crown. I think it would be helpful to hear from the Minister as to why he feels that it is necessary to compromise the authority of the former Environmental Risk Management Authority by moving that power closer to ministerial direction. As I have tried to explain in my contribution that would be a serious change.  
If the Minister takes a call I apprehend that he would point to section 17 of the Hazardous Substances and New Organisms Act because it is a provision that would expressly prevent him from making a direction to the board on its key decision-making functions under Parts 5 and 6A of the Act. It may well be that clause 78 of the Environmental Protection Authority Bill provides a similar protection in respect of the Environmental Protection Authority’s decision making under the Resource Management Act. Clause 78 would expressly prevent the Minister from making a direction to the board in respect of certificates of compliance. If that is the case then I accept—as do members on this side—that there is a degree of protection in respect of some key powers of direction. 
But that is not really the point. The point is that when a new public entity is created the overall scheme of the legislation is what sets the tone for its operation. Anybody who has worked in an establishment entity in the public sector would know this. But it is not limited just to the public sector; it is the same when one is starting a private sector entity. The overall direction the overall tone is set by the key establishment documents. In the case of the private sector it is set by the articles of association and the mood of the owner as communicated to the employees and key staff. In the case of a public entity it is set by the empowering statute. This statute starts with the premise that the Minister is able to direct; the Minister is able to control. The authority is not the independent or autonomous Crown entity that hitherto existed in respect of the Environmental Risk Management Authority an entity that is abolished by a later provision of the bill. This is something that is closer to the Crown. 
Why should we be concerned about this? As has been said by a number of speakers in this debate so far what is needed desperately in this country is a strong central comprehensively empowered independent authority to deal with environmental issues. Do we have that in this legislation? Regrettably no. This should be of particular concern to members who want to contemplate the make-up of the establishment board because not only do we have a power being brought closer to the Crown but also we have an establishment board chaired by a former National Party candidate. Kerry Prendergast is somebody for whom I have a lot of time and respect. She was an excellent Mayor of Wellington. She treated all people with whom she had dealings politically with absolute fairness in my experience. But none the less she was a candidate for the National Party at a not too distant general election. 
The chair of the Local Government and Environment Committee is yet to make a contribution in the debate but I do look forward to that contribution because everybody agrees that he is a fine chair of the select committee. I wonder whether he would perhaps like to think about whether the “optics”—to quote one of his colleagues—of this is a very good look here: a politicised chair of the establishment board as well as these powers being much closer to the Crown than is the case at the moment. 
So rather than see a statutory scheme where the Environmental Protection Authority is obliged to give general effect to the Minister’s objectives with specific exemptions for independence where the Minister thinks that that is a good idea we prefer the reverse position. We should start with the position of independence or autonomy and then give the Minister specific powers of direction if this Parliament thinks he needs them. That would be a perfectly acceptable way to proceed. It would allow the Government to communicate its general policy objectives to the Environmental Protection Authority but it would allow the Environmental Protection Authority to proceed on an independent basis and to win public confidence. I say to members that we are not putting that scheme into place; we are putting in place the opposite scheme. I think and I know that other members of this side of the Chamber agree that this is the wrong way to proceed. When it is the desire of the House to create a new independent transparent organisation the statutory scheme is actually the opposite of what is desired to be created here.