Hazardous Substances and New Organisms Amendment Act 2010

1: Title
This Act is the Hazardous Substances and New Organisms Amendment Act 2010.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Principal Act amended
This Act Hazardous Substances and New Organisms Act 1996 2010-04-20 Hazardous Substances and New Organisms Act 1996
4: Interpretation
1: The definition of aerodrome section 2(1)
2: Section 2(1) conditional release approval conditional release approval 38BA .
5: Meaning of term new organism
Section 2A(2)(a)(i) 35 or section
6: Powers, functions, and duties of Authority
Section 11(2) (1)(fb) (1)(fc)
7: Delegation by Authority
1: Section 19(1) whether or not that person is a member of the Authority, delegate to any person,
2: Section 19(1)
b: any power that may be delegated under subsection (2); and .
3: Section 19(2) in writing The Authority may delegate
4: Section 19(2)(a) sections 35, 42, 42A, or 42B sections 35, 38BA 42C
5: Section 19(2)
cb: the power to decide any application under section 28, if it is not publicly notified under section 53(2), to its chief executive: .
6: Section 19(2)(ha) for an approved filler or an approved handler
7: Section 19(3) subsection (2) of
8: Application under section 34 may be treated as application under section 38A
Section 38B , and sections 38A, 38BA
9: New section 38BA inserted
The following section is inserted after section 38B
38BA: Rapid assessment of risk for importation or release of new organisms with controls
1: If the Authority receives an application under section 38A in respect of a new organism (other than a genetically modified organism), the Authority may make a rapid assessment of the adverse effects of importing the organism for release or releasing the organism from containment.
2: The Authority may approve the application and grant a conditional release approval with controls if the Authority is satisfied that—
a: the organism is not an unwanted organism as defined in the Biosecurity Act 1993; and
b: after the controls are imposed, the organism will comply with section 35(2)(b).
10: Determination of applications to import or release new organisms with controls
Section 38C(1) The Authority may approve an application made under section 38A and grant a conditional release approval with controls, but only if the Authority determines that,— If an application made under section 38A is not approved under section 38BA
11: Application for containment approval for new organisms
Section 40
1: Every person intending to import any new organism into containment, or develop or field test any new organism in containment, must apply to the Authority for approval to do so before importing, developing, or field testing the organism.
12: New section 42C inserted
The following section is inserted after section 42B
42C: Rapid assessment of adverse effects for development in containment, etc, of certain new organisms
1: If the Authority receives an application under section 40 in respect of a new organism (other than a genetically modified organism), the Authority may make a rapid assessment of the adverse effects of importing the organism into containment, or of developing or field testing the organism in containment.
2: If the Authority is satisfied that the importation, development, or field testing is low-risk, in accordance with regulations made under subsection (3)
3: The Governor-General may, by Order in Council, make regulations specifying the circumstances in which there is a low risk of adverse effects from—
a: importing a new organism (other than a genetically modified organism) into containment; or
b: developing or field testing a new organism (other than a genetically modified organism) in containment.
13: Determination of application
Section 45(1) section 42 or section 42A or section 42B section 42, 42A, 42B, or 42C
14: Applications required to be publicly notified
1: Section 53(1)
2: Section 53(1)(ab) , if the application has not been approved under section 38BA
3: Section 53
2: The Authority may, if it considers that there is likely to be significant public interest, publicly notify—
a: an application under section 40 in respect of a new organism (other than a genetically modified organism), if the application has not been approved under section 42C
b: an application under section 40 to import into containment or develop in containment a genetically modified organism, if the application has not been approved under section 42, 42A, or 42B; or
c: an application under section 28, if the application has not been approved under section 28A.
15: Time limits and waivers
Section 59(1)(b) 38I, 42, 42A, or 42B 38BA 42C
16: Grounds for reassessment of a substance or organism
Section 62(4)
a: inserting 38BA 32,
b: inserting 42C 42B,
17: Reassessment
Section 63(2)(c) section 45 section 42, 42A, 42B, 42C
18: New section 63B inserted
The following section is inserted after section 63A
63B: Proposal for group standard may be consulted on in same way as reassessment
1: This section applies if the Authority—
a: decides to reassess a hazardous substance under section 63A without publicly notifying the reassessment in accordance with section 53; and
b: proposes to issue, amend, or revoke (under section 96B) a group standard that applies to the hazardous substance, on similar grounds to the grounds for deciding to reassess the substance.
2: The Authority may consult on the following matters, in accordance with section 63A(5), as if they were part of the reassessment:
a: the proposal to issue, amend, or revoke the group standard; and
b: its assessment of the matters referred to in section 96C(1)(h)(ii).
3: If the Authority consults in accordance with subsection (2)
19: Issue of test certificates by test certifiers
1: Section 82(4) , unless a conditional test certificate is issued under subsection (4A) he or she shall
2: Section 82
4A: A test certifier may issue a conditional test certificate for a hazardous substance location if he or she considers, on reasonable grounds, that the failure to meet the relevant requirements for the hazardous substance location is minor and technical in nature.
4B: A conditional test certificate must—
a: specify the requirements that have not been met; and
b: specify the date by which the requirements must be met; and
c: state that the certificate expires on the close of the day specified under paragraph (b)
4C: A conditional test certificate expires on the close of the day specified under subsection (4B)(b) subsection (4B)(a)
4D: In all other respects, a conditional test certificate is a test certificate for the purposes of this Act.
4E: In subsection (4A) hazardous substance location
20: Register of test certificates
1: Section 82A(3) ; and
g: in the case of a conditional test certificate issued for a hazardous substance location,—
i: details of the hazardous substance location; and
ii: the relevant requirements for the hazardous substance location that have not been met; and
iii: the date by which the requirements must be met.
2: Section 82A(4)(c) ; or
v: is necessary to plan for responses to any emergency (as defined in section 46).
3: Section 82A(5)
ba: the chief executive of the New Zealand Fire Service: .
21: Delegation by approved person
Section 82B(1) section 82A(5)(a) and (b) section 82A(5)(a), (b), or (ba)
22: Revocation of test certificates for approved fillers and approved handlers
1: The heading to section 82C for approved fillers and approved handlers
2: Section 82C(1) issued to an approved filler or an approved handler (as the case may be)
3: Section 82C(1) ; or
d: has not met, or continued to meet, any requirement for which the test certificate was issued.
4: Section 82C(9)
23: When group standards may be issued or amended
Section 96C
3: However, the Authority may, on its own initiative, amend a group standard under section 96B without complying with subsections (1) and (2) of this section, if it considers that the amendment is minor in effect or corrects a minor or technical error.
24: Enforcement of Act
Section 97(1)(e) in, on, or at any aircraft or aerodrome in or on any aircraft
25: Enforcement of Act in respect of new organisms
Section 97A
4A: The enforcement agency’s costs of enforcing this Act in respect of new organisms are to be treated as if they were costs of administering the Biosecurity Act 1993, and—
a: may be recovered in accordance with section 135 of that Act; and
b: may be funded by a levy imposed under section 137 of that Act; and
c: may be prescribed, in regulations made under section 165(1)(s) of that Act, as costs that are recoverable.
26: Enforcement of Act in respect of hazardous substances in place of work
Section 97B(3) enforcement agency enforcement agency
a: means the chief executive of the department responsible for the administration of the Health and Safety in Employment Act 1992; and
b: includes, in relation to a particular industry, sector, or type of work, the chief executive of an agency designated under section 28B(1) of that Act to administer that Act for the particular industry, sector, or type of work .
27: Offences
Section 109(2)
28: New sections 109A and 109B inserted
The following sections are inserted after section 109
109A: Time for laying information
1: An information in respect of an offence against this Act that relates to a hazardous substance may be laid by any person at any time within 6 months after the earlier of—
a: the date when the incident, situation, or set of circumstances to which the offence relates first became known to the person; or
b: the date when the incident, situation, or set of circumstances to which the offence relates should reasonably have become known to the person.
2: An information in respect of an offence against this Act that relates to a new organism may be laid by any person at any time within 2 years after the time when the matter of the information arose.
3: Subsection (1) section 109B
109B: Extension of time for laying information
1: The District Court may, on application by any person, extend the time for the person to lay an information under section 109A(1)
2: The application must be made within the 6-month period that applies to the person under section 109A(1)
3: The court must not grant an extension unless it is satisfied that—
a: the person reasonably requires longer than the 6-month period to decide whether to lay an information; and
b: the reason for requiring the longer period is that the investigation of the events and issues surrounding the alleged offence is complex or time-consuming; and
c: it is in the public interest in the circumstances that an information is able to be laid after the 6-month period expires; and
d: laying the information after the 6-month period expires will not unfairly prejudice the proposed defendant in defending the charge.
4: The court must give the following persons an opportunity to be heard:
a: the person seeking the extension:
b: the proposed defendant.
29: Strict liability and defences
Section 117
4: It is a defence to prosecution for any offence specified in section 109(1)(e)(ii) or (iii) that, at the time of the alleged offence, the defendant was the holder of a conditional test certificate issued under section 82(4A)
a: specified, as requirements that had not been met, the controls that it is alleged that the defendant failed to comply with; and
b: had not expired under section 82(4C)
30: Incorporation of material by reference
1: Section 141A(1)
a: standards, requirements, or recommended practices of national or international organisations:
ab: standards, requirements, or recommended practices prescribed in any country or jurisdiction or by any group of countries: .
2: Section 141A
3: Material has legal effect as part of the regulations, group standard, notice of transfer, or code of practice in which the material is incorporated by reference.
3: Section 141A(4)
31: New sections 141B to 141I inserted
The following sections are inserted after section 141A
141B: Amendment to, or replacement of, material incorporated by reference
1: An amendment to, or replacement of, material has legal effect as part of the regulations, group standard, or code of practice in which the material is incorporated by reference only if a notice is published in the Gazette
a: stating that the amendment or replacement has that effect; and
b: specifying the date of the notice, or a later date, as the date on which the amendment or replacement has that effect.
2: The following person may publish the notice:
a: the Minister, in the case of material incorporated in regulations; or
b: the Authority, in the case of material incorporated in a group standard or code of practice.
3: The notice must not be published unless the amendment or replacement material is of the same general character as the material amended or replaced.
4: An amendment to, or replacement of, material does not have legal effect as part of a notice of transfer in which the material is incorporated by reference.
141C: Proof of material incorporated by reference
1: A copy of material that is incorporated by reference in regulations, including any amendment to, or replacement of, that material, must be—
a: certified as a correct copy of the material by the chief executive of the Ministry for the Environment; and
b: retained by that chief executive or the chief executive of the Authority.
2: A copy of material that is incorporated by reference in a group standard, notice of transfer, or code of practice, including any amendment to, or replacement of, that material, must be—
a: certified as a correct copy of the material by the chief executive of the Authority; and
b: retained by that chief executive.
3: The production in proceedings of a certified copy of the material is, in the absence of evidence to the contrary, sufficient evidence of the incorporation of that material in the regulations, group standard, notice of transfer, or code of practice.
141D: Material incorporated by reference that ceases to have effect
1: If material ceases to have effect, it ceases to have legal effect as part of the regulations, group standard, or code of practice in which the material is incorporated by reference only if a notice is published in the Gazette
a: stating that the material ceases to have that effect; and
b: specifying the date of the notice, or a later date, as the date on which the material ceases to have that effect.
2: The following person may publish the notice:
a: the Minister, in the case of material incorporated in regulations; or
b: the Authority, in the case of material incorporated in a group standard or code of practice.
3: Material that ceases to have effect does not cease to have legal effect as part of a notice of transfer in which the material is incorporated by reference.
141E: Notice must be provided to committee responsible for examining regulations
If a notice is published in the Gazette section 141B or 141D
a: the chief executive of the Ministry for the Environment, in the case of material incorporated in regulations; or
b: the chief executive of the Authority, in the case of material incorporated in a group standard.
141F: Requirement to consult on proposal to amend or replace material incorporated by reference
1: The Minister must comply with subsection (2) Gazette section 141B
2: The Minister must notify and consult on the proposed amendment to, or replacement of, material in accordance with section 141 (with all necessary modifications) as if the proposed amendment or replacement were a proposed Order in Council.
3: The chief executive of the Authority must comply with subsection (4) Gazette section 141B
4: The chief executive must notify and consult on the proposed amendment to, or replacement of, material,—
a: in the case of a group standard, in accordance with sections 53 to 61 (with all necessary modifications) as if the proposed amendment or replacement were an application under section 96B to amend a group standard; or
b: in the case of a code of practice, in accordance with section 79(2) and (3) (with all necessary modifications) as if the proposed amendment or replacement were a code proposed for approval.
5: A failure to comply with this section does not invalidate regulations that incorporate material by reference or a group standard or code of practice that incorporates material by reference.
141G: Access to material incorporated by reference in regulations
1: This section applies if material is incorporated by reference in regulations.
2: The chief executive of the Ministry for the Environment must—
a: make the material referred to in subsection (5) incorporated material
i: the head office of the Ministry; and
ii: any other places that the chief executive may, at his or her discretion, determine are appropriate; and
b: ensure that copies of the incorporated material are available for purchase by members of the public at a reasonable price; and
c: make copies of the incorporated material available, free of charge, on an Internet site maintained by or on behalf of the Ministry, unless doing so would infringe copyright in that material or be inconsistent with any other enactment or rule of law; and
d: give notice in the Gazette
i: stating that the incorporated material is available for inspection during working hours, free of charge, and specifying the places at which it can be inspected; and
ii: stating that copies of the incorporated material can be purchased and specifying the places at which they can be purchased; and
iii: if applicable, stating that the incorporated material is available on the Internet, free of charge, and specifying the Internet site address.
3: The chief executive—
a: may make copies of the incorporated material available in any other way that he or she considers appropriate in the circumstances; and
b: must, if paragraph (a) Gazette
4: The chief executive may comply with subsection (2)(c)
5: The material is—
a: material incorporated by reference in regulations:
b: any amendment to, or replacement of, that material that is incorporated in the regulations, or the material referred to in paragraph (a)
c: if the material referred to in paragraph (a) or (b)
6: A failure to comply with this section does not invalidate regulations that incorporate material by reference.
141H: Access to material incorporated by reference in group standard, notice of transfer, or code of practice
1: This section applies if material is incorporated by reference in a group standard, notice of transfer, or code of practice.
2: The chief executive of the Authority must—
a: make the material referred to in subsection (3) incorporated material
b: ensure that copies of the incorporated material are available for purchase by members of the public at a reasonable price; and
c: give notice in the Gazette
i: stating that the incorporated material is available for inspection free of charge and specifying the places at which it can be inspected; and
ii: stating that copies of the incorporated material can be purchased and specifying the places at which they can be purchased.
3: The material is—
a: material incorporated by reference in a group standard, notice of transfer, or code of practice:
b: any amendment to, or replacement of, that material that is incorporated in the group standard or code of practice, or the material referred to in paragraph (a)
c: if the material referred to in paragraph (a) or (b)
4: A failure to comply with this section does not invalidate a group standard, notice of transfer, or code of practice that incorporates material by reference.
141I: Application of Acts and Regulations Publication Act 1989 and Regulations (Disallowance) Act 1989
1: The Acts and Regulations Publication Act 1989 does not apply to material incorporated by reference in regulations, group standards, notices of transfer, or codes of practice, or to an amendment to, or replacement of, that material.
2: The Regulations (Disallowance) Act 1989 applies to regulations, group standards, and notices of transfer that incorporate material by reference, but does not apply to codes of practice that incorporate material by reference.
3: However, nothing in section 4 of the Regulations (Disallowance) Act 1989 requires material (including an amendment to, or replacement of, that material) that is incorporated by reference in regulations, group standards, or notices of transfer to be presented to the House of Representatives.
32: Additional matters to be included in statement of intent
Section 147(3)
33: Additional reporting requirements
Section 148(b)
34: Transitional provision for applications
1: This section applies to an application under section 28 34 38A 40
2: The application must be dealt with as if this Act had not been enacted.
35: Transitional provision for reassessment of hazardous substance
1: This section applies if, before the commencement of this Act,—
a: the Authority decided to reassess a hazardous substance under section 63A
b: the Authority proposed to issue, amend, or revoke, under section 96B
2: The decision and proposal must be dealt with as if this Act had not been enacted.
36: Transitional provision for aerodromes
Anything done, before the commencement of this Act, in enforcing the principal Act in relation to an aerodrome may be completed as if this Act had not been enacted.
37: Transitional provision for cost recovery
1: This section applies to any costs of enforcing the principal Act in respect of a new organism incurred by the enforcement agency (as defined by section 97A
2: The costs—
a: must be dealt with as if this Act had not been enacted, if they were incurred before the commencement of this Act; or
b: may be recovered in accordance with the principal Act as amended by this Act, if they were incurred on or after the commencement of this Act, regardless of when the enforcement to which the costs relate occurred.
38: Transitional provision for
filing charging document
1: Subsection (2) applies to a charge
2: The charging document must be filed
a: as if this Act had not been enacted, if the incident, situation, or set of circumstances to which the offence relates occurred before the commencement of this Act; or
b: in accordance with the principal Act as amended by this Act in all other cases.
3: Subsection (4) applies to a charge
4: The charging document must be filed
a: as if this Act had not been enacted, if the offence was committed
b: in accordance with the principal Act as amended by this Act in all other cases. Section 38 heading amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 38(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 38(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 38(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 38(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 38(4)(a) amended 1 July 2013 section 413 Criminal Procedure Act 2011