Anderton Jim: Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill — Second Reading 
Anderton Jim: Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill — Second Reading 
[Volume:646;Page:15141] 
Hon JIM ANDERTON (Minister for Biosecurity) 
: 
 I move  
That the Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill be now read a second time 
. I will start by acknowledging the work that submitters to the Primary Production Committee have put into this bill. For reasons that I will come to shortly submitters had a period of just over a week to prepare submissions and the select committee effectively had a period of only 2 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 period of time. I thank submitters for their input and I thank the committee for its hard work and its careful consideration of the issues raised by submitters. 
I am also very conscious that the bill has generated substantial concerns particularly in the bee-keeping and pig farming industries. The Government acknowledges those concerns and is happy to support the mechanisms for independent review that the select committee has recommended in its 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 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. The Ministry of Agriculture and Forestry sought advice from the Crown Law Office immediately after the court’s judgment was released in December. This advice led to the freeze on issuing any new import health standards under the Biosecurity Act and on 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. I give but one example: there could be hundreds of known new micro-organisms imported in or on horses—in their intestines on their coats or in their noses. If the law as stated by the Court of Appeal was left unchanged then all of those organisms would require an approval under the Hazardous Substances and New Organisms Act before horses could be imported into New Zealand. That is clearly unworkable to say the least and impractical because the approval processes in the Hazardous Substances and New Organisms Act were not designed for assessing the risk posed by passenger new organisms. As a result they 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 members of the select committee. I have also become aware that other members were interested in the reasons for the bill and for that reason I sent a copy of the Crown Law Office advice to all members of the House 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 related to the interface between the Biosecurity Act and the Hazardous Substances and New Organisms Act for some time. Officials had been working on issues relating to the interface between the two Acts before the bee-keepers’ legal challenge was commenced. The High Court judgment in the litigation found in favour of the Crown’s arguments to an extent that no law changes were considered necessary. But the Court of Appeal however found almost completely the reverse of that judgment which has triggered the need for the legislation before the House today. 
Another key issue raised by some submitters was their questioning of why the approval processes in the Hazardous Substances and New Organisms Act could not be used to assess the risk posed by passenger new organisms. This has been looked into thoroughly by officials from the Ministry of Agriculture and Forestry the Ministry for the Environment and the Environmental Risk Management Authority as part of the work that was done before the bee-keepers’ litigation. The conclusion they reached was that the Hazardous Substances and New Organisms Act approval process was not appropriate for this task. 
I set out in some detail why the Hazardous Substances and New Organisms Act approval processes are not suitable for assessing passenger new organisms during the first reading debate. I will not repeat them in detail here but I will make some more general observations. The first point is that the Hazardous Substances and New Organisms 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 kinds 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 Hazardous Substances and New Organisms 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 those 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 an organism would not survive or reproduce in New Zealand because for example the climate is unsuitable; where the organism is inconsequential and would have negligible adverse effects even if it did become established in New Zealand; and where an organism requires a particular insect in order to spread and that insect is not present in New Zealand. In as much as it is more sensible for these kinds of organisms to be assessed by the Ministry of Agriculture and Forestry in an analysis of the risk posed by a particular kind of imported good rather than have each and every one of them assessed using the criteria proposals in the Hazardous Substances and New Organisms Act this is what this bill is about. 
That 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 posed by an 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 was imported deliberately or incidentally. That 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 if 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 they considered that the bill should make more substantial amendments to the Biosecurity Act. The common theme behind these submissions was the view that there needs to be a more statutory process and criteria to guide the Ministry of Agriculture and Forestry in the process of developing import health standards. Some of the suggested amendments to the Biosecurity Act proposed that elements of the Hazardous Substances and New Organisms Act be adopted such as the precautionary principle and the minimum standards. Other suggestions were for some kind of independent review of the Ministry of Agriculture and Forestry’s decision or 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 Hazardous Substances and New Organisms Act into the Biosecurity Act could have significant implications for the way that those decisions are made 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 in fact over 400 import health standards are currently in effect. 
This bill was introduced as a measure specifically to address the problems resulting from the Court of Appeal’s decision and it needs to be passed promptly. Therefore I am pleased that the committee has maintained a focus on those essential elements. However the select committee has recommended that the Biosecurity Act be amended to make provision for an independent review process that can be used in cases where there are significant or supposedly controversial concerns and when those have arisen during the consultation over the import health standards. 
The Ministry of Agriculture and Forestry already seeks independent peer review of its risk analysis. However I believe that the new provision recommended by the committee will be of value in helping to move forward in relation to those few import health standards that become contentious. The details of the review process will be developed by 1 July in consultation with affected parties so I am accepting that recommendation. I also understand that the Director-General of the Ministry of Agriculture and Forestry will shortly be offering the bee-keeping industry a targeted review of the ministry’s interpretation of the science in dispute around the  
Paenibacillus alvei 
 which was the key organism of concern in the bee-keepers’ legal challenge. 
The last topic I will 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 bee-keepers of a court victory. I can certainly understand that perspective and why members of this House would be concerned about that. As I said in the first reading debate the Government did not take lightly the decision to validate the standard. I will not repeat in detail the reasons for validation that I referred to in 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 also note that the review to be offered by the director-general of the ministry concerning the science and dispute around  
Paenibacillus alvei 
 is in some way a reflection of what the bee-keepers considered 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 to provide a practical way forward although still being responsive to calls for an independent consideration of the dispute over the effects of  
Paenibacillus alvei 
. 
In closing may I thank submitters for their input and the members of the Primary Production Committee for their hard work on the bill and the sound judgment that I think they have brought to bear on some very difficult and complex issues. These are difficult matters to contend with and we will not always make everyone happy. That is a major understatement! 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 as well as we possibly can. The current situation of an unworkable statutory regime for assessing the passage of new organisms and a freeze on the issuing or amending of import health standards is quite simply unsustainable. Therefore I urge members of this House to pass the bill promptly.