Chauvel Charles: Regulatory Improvement Bill — Second Reading In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Regulatory Improvement Bill — Second Reading In Committee 
[Sitting date: 30 March 2010. Volume:661;Page:10171. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 I take a call to deal with some of the issues that the Regulations Review Committee drew to the attention of the Commerce Committee during its consideration of the legislation. But before I do I advise the Minister in the chair the Hon Dr Wayne Mapp that my colleague Lianne Dalziel raised two issues with the Minister who was in the chair before him the Hon Georgina te Heuheu. I know that the officials will have made a note of those issues but it would be good if he was cognisant of them. The first was whether when he takes a call the Minister could confirm the number of times that applications have been made under the Conservation Act in respect of the matters that are being dealt with by the legislation. The second is that I think it would be useful— 
Hon Lianne Dalziel 
: And the number of objections. 
CHARLES CHAUVEL 
: And the number of objections that have been received. It would also be good if we could have in the record of the proceedings of the Committee a confirmation that there is certainly no intended substantive change to the hazardous substances and new organisms legislation. 
Hon Lianne Dalziel 
: No changes relating to GMOs. 
CHARLES CHAUVEL 
: Yes a confirmation that there are no changes relating to genetically modified organisms. That would go a long way towards allaying some of the fears that the mention of that legislation clearly raised in the minds of some submitters. 
I particularly draw the attention of the Committee to the three issues that the Regulations Review Committee drew to the attention of the Commerce Committee. I do so because it is not entirely clear from the record what the committee made of one of those matters in particular. 
The first issue that was drawn to the attention of the committee related to the manner in which the original legislation was intended to be commenced. The provision originally in the legislation stated that the bill would come into force on a day to be appointed by the Governor-General by Order in Council. Members will be aware that over a number of years the Regulations Review Committee has expressed concern about this form of clause. Essentially this provision is used very regularly overseas particularly in Canada and the United Kingdom. It allows the executive the power to proclaim legislation as opposed to Parliament itself fixing a date for legislation to come into force. 
Various justifications are used for this sort of clause. The usual justification advanced is that officials need time to implement the technical matters that are referred to in the legislation and that until that implementation work has been carried out it is not possible to set a firm commencement date. The problem with that sort of argument is that we have seen in the last couple of years some extraordinary examples of delay in the coming into force of legislation. One example involved legislation that was delayed for 8 years between its passing and its coming into force. 
I am pleased to see in the report of the Commerce Committee on this legislation that clause 2 is recommended to be amended so that the commencement date is to be the earlier of either a date to be appointed by the Governor-General or a day that is 12 months after the date on which the Act receives the Royal assent. It seems to me that the amendment is an appropriate response to the concerns that were expressed by the Regulations Review Committee. I thank the Commerce Committee for reaching a sensible accommodation on that first point of concern. 
The second concern is where I would particularly like the Minister to take advice from the officials if he would and take a call. The second issue relates to the making of regulations without express controls which is another major area of concern for our scrutiny committee. On this occasion the concern relates to clause 28 which inserts a new section 42C in the Hazardous Substances and New Organisms Act 1996. New section 42C(3) would provide a power to “make regulations specifying the circumstances in which there is a low risk of adverse effects from— … (b) developing … a new organism … in containment.” This relates to organisms that are not genetically modified—I stress that point. But it will allow applications to develop organisms in containment to be rapidly assessed by the Environmental Risk Management Authority. 
A similar regulation-making power exists in section 41 of the Hazardous Substances and New Organisms Act relating to so-called low-risk genetically modified organisms. It allows the Governor-General “from time to time by Order in Council” to “make regulations—(a) Specifying the procedures … (b) Specifying the probability that adverse effects will occur … (c) Specifying the circumstances in which genetic modification of an organism is a low risk genetic modification.” 
New section 42C(3) relating to organisms that are not genetically modified contains wording that is similar to that currently found in the existing section 41(c). Existing subsections 41(a) and (b) which relate to creating regulations specifying a standard process for making any assessment of risk of adverse effects from genetically modified organisms have not been carried through into the bill in relation to non - genetically modified organisms. 
Under section 41 of the Act the standard process for assessing risk relating to genetically modified organisms must be promulgated by way of regulations. This ensures appropriate transparency and future technical scrutiny by Parliament. But under the bill that safeguard is not carried through in respect of the assessment of risk for the development of organisms that are not genetically modified. There is no explanation in the explanatory note or in the report of the committee for the difference in approach between the existing section and the proposed new section. 
The difference is contrary to the statement in the original explanatory note to the bill which stated that it is intended that there be “consistency” in how both such applications are dealt with meaning consistency between those relating to non - genetically modified organisms and those relating to genetically modified organisms. That is on page 26 of the original explanatory note of the bill. So I do think it is important in respect of the assurance that I was asking for before and which Lianne Dalziel referred to that we do not see any substantive change here in respect of GMOs and that the decision not to have a consistent procedure as between GMOs and non-GMOs be a considered one. I think that is an important point. 
The issue here is that the regulation-making power under proposed section 42C(3) does not have any expressed controls placed on it by the bill. This is not consistent with the Legislation Advisory Committee guidelines. They state that although empowering statutes should not generally prescribe the procedure for making delegated legislation: “Consideration should be given in each case as to whether a procedure or any aspect of the procedure should be specified.” This might include requirements for notice consultation or confirmation by Parliament of any regulations that result. 
It is just not clear why the standard process that will be used to assess low-risk non-GMOs is not to be promulgated by way of regulations to provide transparency and future scrutiny consistent with section 41 of the Act. There may well be good reasons for the inconsistent approach but they are not apparent. I think it would be helpful if we could get an explanation from the officials via the Minister of that point. 
I have another issue to raise. It is the third matter dealt with by the Regulations Review Committee. It relates to Part 6 but I apprehend that I might be running out of time on this call so I will reserve that matter for a future call. Thank you.