Hazardous Substances and New Organisms(Stockholm Convention) Amendment Bill

There are two very significant issues that I want to refer to in Part 2, which covers the amendments to the principal Act. I foreshadow that, because I may not get through them in my 5-minute call, I may seek a second call. I believe that they are serious issues. The first one relates to the important issue about whether, in the future, once this law is passed, an amendment to the Stockholm convention, carried by other countries that New Zealand did not agree with, could become part of our domestic law.

This is a very serious issue, and I refer members of the Committee to what the Foreign Affairs, Defence and Trade Committee had to say about this. I will read straight from the commentary, and it is really important that people listen to this carefully. I am reading from the paragraph headed “Definition of Stockholm Convention”, which states: “We considered the definition of ‘Stockholm Convention’ in clause 4 of the bill that applies to amendments or substitutions of the Convention. The Regulations Review Committee proposed an amendment so that the definition would limit amendments to the Convention to those that had been included in Schedule 1AA. We are advised’’—this is the select committee saying this—“that the Committee’s concern”—that is, the Regulations Review Committee’s concern—“is about amendments to the Convention applying automatically in New Zealand’s domestic law. Rather than amend this definition, we have substituted a new definition of environmentally sound disposal so that the rules about disposal are set by ERMA, rather than being set directly by the Convention.”

I want members to read that section of the commentary carefully, because it should show them that the select committee did not address the concern of the Regulations Review Committee. The select committee amended the matters relating to the disposal of persistent organic pollutants, but this law that we are passing today has to do with a whole lot more than just disposal. This law covers importation, manufacture, use, and storage—not just disposal. The way this bill is currently written, all those matters relating to use, importation, and manufacture, which could be changed by a change to the Stockholm Convention—a change that New Zealand may not even agree with—could become automatically part of our domestic law.

The select committee failed to understand, in my view, the concern of the Regulations Review Committee. We need only read that part of the commentary to see how the select committee has failed to address the concern of the Regulations Review Committee. The Regulations Review Committee was saying it was concerned that amendments to the convention could apply automatically in New Zealand’s domestic law—and what does the select committee say? It says it has changed the rules about the disposal of persistent organic pollutants. This legislation covers a whole lot more than just disposal. Although New Zealand retains domestic control over disposal of persistent organic pollutants—the select committee did make that amendment to the definition of “environmentally sound disposal” in clause 4—the way I read this legislation, and, it seems, the way the Regulations Review Committee read it, New Zealand loses control over the other matters covered by the Stockholm convention, such as manufacture, importation, and usage. If I am wrong, I would appreciate the Minister getting to his feet and explaining where I am wrong.

This is a serious, serious matter, and that is why I have proposed an amendment, which I will foreshadow right now. My amendment is to paragraph (b) of the definition of Stockholm Convention in section 2(1), in clause 4, and it would: “omit all words from ‘are’ onwards”—that is where, at present, it refers to “the Annexes that are, or will become, binding on New Zealand”—and substitute the words “are added to schedules 1AA and 2A by the Governor-General by Order in Council”. At least, then, the Government of New Zealand would be making a conscious decision to add the changes to the Stockholm convention to our domestic law, instead of leaving this bill so that changes are automatically made to our domestic law because of decisions made by other countries elsewhere in the world. I submit to the Government that this is a very serious issue. It worried the Regulations Review Committee. I believe the select committee failed to address it adequately, and I urge the Minister to respond.

I would like to reiterate that I too am deeply concerned about what appears to be an error in the drafting of Part 2 of this bill, which my colleague Dr the Hon Lockwood Smith brought up. I would like to speak on that further, but I would also like to bring to the Committee’s attention an issue in clause 8, “Exemptions from Act for small-scale research on hazardous substances”. The clause states: “Section 33 of the principal Act is amended by inserting, after paragraph (b), the following paragraph: ‘(ba) the use does not create or involve a persistent organic pollutant; and’.” The National Council of Women fear that this bill as drafted may mean that research into this area will be excluded. That would clearly be very unfortunate, and would require some changes.

But perhaps even more important is that the provisions of the original Act, the Hazardous Substances and New Organisms Act, and the bill before us are both restricted to “small-scale” research. I believe we have no definition of what small-scale research is, and, again, I think that the Minister in the chair, David Cunliffe, hopefully, will be able to take a call on and clarify that issue, because it is important. The National Council of Women makes a submission that supports the bill, and gives particularly strong support for increased funding for research into the management and remediation of toxic waste.

The National Council of Women also believes that it is important, through clause 8, that research into persistent organic pollutants is continued. The council says that, in its view, clause 8 contains the inherent contradiction that research use of hazardous substances is permitted—as long as it does not involve a persistent organic pollutant. That implies that research into persistent organic pollutants cannot use persistent organic pollutants in that research, and the council questions how such research can proceed without involving those substances. The council suggests strongly that this provision is clarified to enable research, such as that into remediation strategies, to proceed expeditiously.

To further confuse the issue, I add the question of what “small-scale” research constitutes. Certainly, when I have the opportunity, I will be putting forward an amendment to clarify it to mean research. We will take out the wording “small-scale”, because it is confusing. Any research that goes through the Environmental Risk Management Authority, or the responsible authority, will be considered on a case-by-case basis, using the precautionary principle. I believe that the Royal Commission on Genetic Modification got it right when it endorsed the work and activity of the Environmental Risk Management Authority in its report 2 years ago. The authority is an organisation that we should have confidence in. Perhaps it needs some sharpening, but, once again, I believe that with wording such as “small-scale” we just have another stumbling block that may require Parliament’s interpretation. So I intend to try to amend both this bill and the parent Act in order to take out that wording. As the National Council of Women said, research into persistent organic pollutants is very important and should be able to continue.

During the second reading of this bill, I asked whether the Minister would take the trouble to explain why we need clause 4B. A Supplementary Order Paper has been sprung upon us by the Minister that inserts a delegation by authority provision into the legislation. New Zealand First dislikes matters being left to Orders in Council, or being dealt with by way of regulation; we dislike even more an authority to do something, which is traditionally given by Parliament to a Minister or some other authority named in legislation, being given to somebody else altogether.

From looking at the explanatory note to the bill, I see that, initially, the Environmental Risk Management Authority was to be given the authority to do something; now, instead of the authority doing it, the amendment on Supplementary Order Paper 97 to insert new clause 4B allows an employee to do it: “(i) any employee … with relevant experience; or (ii) if there is no employee with relevant experience, any other person with relevant experience, whether or not that person is a member of the Authority:”. One presumes that when the Government introduced this legislation to the House, it had thought about the matter very carefully. It gave the Environmental Risk Management Authority the power to do something. Now we are finding that the Government, in its arrogance, is proposing to change the law so that an employee with relevant experience, or possibly someone with relevant experience who is not even an employee, can do it. What is “relevant experience”—making the morning tea or having a PhD? There is no definition of “relevant experience”. On what is a relatively simple bill, we are being asked, with no explanation at all, to give over the powers of the Environmental Risk Management Authority to someone who does not work for it but has “relevant experience”, whatever that might be.

I did indicate in my speech in the second reading debate that I expected the Minister, as a courtesy, to give us some explanation for that. As far as I am aware, no explanation has been given. That is absolutely arrogant and shows this minority Labour Government’s disregard for the principles and requirements of Parliament.

I also raised during the second reading the point about the way in which matters can get out of hand. The Stockholm Convention on Persistent Organic Pollutants has not yet been ratified. In the Minister’s first reading speech she said that 50 countries needed to sign up before it could be ratified, and that she thought the number that had signed up was somewhere in the high 40s. Then we heard from Minister Chris Carter today that it was somewhere in the 30s. It seems to be going downwards. This convention is not international law.

We have seen what this Government does in terms of conventions that are not international law, such as the Kyoto Protocol. For it to be international law, countries that account for 55 percent of carbon dioxide emissions, and that are party to it, need to sign it, and only about 40 percent is signed for. As America, on 36 percent, and Russia, on 16 percent—totalling 52 percent—have not signed it, it is not international law. But the Government is ramming it down the throats of our farmers, and is trying to get money based on something that is not international law. This bill deals with another convention that is not yet international law, the Stockholm convention—which we are and have been implementing for farming purposes, anyway, regardless of whether it is in our legislation—and the Government is giving authority to some person with “relevant experience”, with no definition of what that is.

The Opposition cannot possibly support an amendment that has not been explained at all by the Minister. The Committee deserves to hear what is meant by that particular amendment.

I would like to take up an issue that was peripherally raised in the debate on Part 1 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Bill, because I believe it is a truly significant issue. It may not be possible to deal with it in the Committee stage, but it does need to be dealt with. Dr Lockwood Smith has an amendment that may go some way towards resolving the issue but may, in fact, do little more than highlight the problem.

I do not think there are any members of the Regulations Review Committee, apart from H V Ross Robertson and myself, in the Chamber at the moment.

💬 Dail Jones: What about this one?

There are three members of the Regulations Review Committee in the Chamber at the moment, so there will be shared knowledge on the question that I now raise. There is oblique reference to the problem in the commentary on the bill, under the heading “Definition of ‘Stockholm Convention’ ”. The short point, which others have spoken about, is that if there are changes to the international treaty, New Zealand will automatically see those changes fall into our domestic law without our having the opportunity of assessing whether the changes should be made. It is an issue that the Regulations Review Committee has had to grapple with in the context of regulations incorporated by reference. That has led to parliamentary counsel drafting—albeit in the setting of regulations—template materials that it is suggested should be used where incorporation by reference is sought. That is very relevant in the context of secondary and tertiary legislation that refers, for example, to foreign standards, but it is equally applicable in the context of the situation we are talking about, where multilateral foreign instruments are sought to be incorporated into domestic law.

I invite the Minister in the chair, the Hon Trevor Mallard, to contemplate whether it is possible for him, with the skill and guile of those who sit behind him, to draft amendments that would resolve the issue. It surely cannot be appropriate to face a situation in which New Zealand domestic law can be altered at the whim of a third party—or, in this case, a multitude of third parties—which, by protocol or amendment to a principal treaty, can effect significant changes to that base document. That issue is compelling. It may be one of the core legal problems that arise in respect of Part 2. I urge Government members to give their prompt and full support to our having the Minister look at that issue. As others have said, we are in real danger of drifting into a circumstance of threat to our sovereignty.

There are other provisions in Part 2 that are well worth comment. Clearly, they include the actual definition of a persistent organic pollutant, in clause 4. It refers to the substances listed in schedule 2A of the principal Act, which is inserted by schedule 2 of the bill. We find aldrin, chlordane, dieldrin, endrin, heptachlor, hexachlorobenzene, mirex, toxaphene, polychlorinated biphenyls, and DDT included in that schedule. But there are other provisions that it is appropriate to refer to briefly. Clause 5 inserts the driving provision in the legislation, and that is the provision dealing with the prohibition of the import, manufacture, or use of persistent organic pollutants.

I rise to speak on Part 2 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Bill. There have been some very, very good arguments raised on this side of the House by my National Party colleagues, and also by my New Zealand First and ACT party colleagues. This bill, the Stockholm Convention on Persistent Organic Pollutants, and other like conventions are all about taking away bits of New Zealand’s sovereignty and signing up to deals. We on this side of the Chamber understand that; none of us want an environment that is polluted or that will not be fit for our children and grandchildren to live in. [Interruption] I say to that member, David Cunliffe, in particular that, no, not all treaties are bad, but some Labour Party members are.

I come back to Part 2. What is particularly concerning—[Interruption] I am really looking forward to Mark Gosche taking a call at some stage; I thought he was asleep. This particular legislation has some very good intentions, but at the end of the day clause 4, because of a wish to include any amendments to the Stockholm convention, allows New Zealand officials effectively to make law for New Zealand without those bills coming back here to Parliament. That is a real concern. The Government’s Regulation Review Committee raised this issue and said it is a real concern. I am sorry to say that the Foreign Affairs, Defence and Trade Committee, under the chairmanship of the chair, the Hon Peter Dunne, and the deputy chair, Graham Kelly, has not actually considered it to be so important as to take notice. That committee wants to allow for directions to be given as to the disposal of persistent organic pollutants.

In the newspapers this week—and I think it was the Green Party that actually raised the issue—we have seen concerns over the qualifications and experience of some of the people on the Environmental Risk Management Authority board. I think the Green Party member present would be able to confirm that there are issues concerning the Environmental Risk Management Authority and its competence. In this bill we are allowing directions to be given as to the disposal of persistent organic pollutants, and, somehow, the Environmental Risk Management Authority—which has come under a bit of attack lately, and I think its chairman has actually acknowledged that it does not necessarily have all the qualifications and experience that it needs—is to be in charge of giving directions. That is very concerning when the Regulations Review Committee, which is a multiparty committee full of people who make a very good and valuable contribution to Parliament and to the country generally, is saying that it is very concerned about the legislation by stealth that could take place, signed up to by overanxious and eager officials and Ministers who might think they are doing the best thing. Coming from a little country like New Zealand, those officials could be somewhat overawed in some circumstances by the size of the representation and the company in which they find themselves at these conventions. That is a very real concern. It is a concern that I would have thought the Green Party might like actually to comment on, given its quite well publicised concerns over the Environmental Risk Management Authority and its ability to do this sort of job.

We have raised this issue today because we do not like law being rushed through when it could actually have a very damaging effect on New Zealand. There is no particular reason why this law needs to be rushed through. There is no particular reason why the Regulations Review Committee should be ignored.

I am taking a second call on this part of the legislation. Members may have noted that I did not speak at all in the earlier Committee stage, but the attitude of this minority Labour Party Government is making me annoyed. I think we are entitled to some explanation as to why the Environmental Risk Management Authority can have its decisions made by someone who is not even an employee. They can be made by any person with relevant experience. I would have thought that the Green Party member present would stand up and express her concern about that amendment.

We know that New Zealand First has a much more caring attitude to the environment than the Green Party does; it always did. The process of this legislation through the House is making it absolutely clear that our party is way above the Green Party on these issues. After all, my involvement with the environmental movement goes back to 1973, when I went to the incorporation meeting of the Values Party, which some may or may not remember. In late 1973-74 I worked with Reg Clough, who was then the leader of the Values Party. I was interested in the health side of things. My interest in the environment, which carries through to New Zealand First’s interest in it, goes back a long way in New Zealand’s history of environmental politics. I am sure it is far superior and longer than that of any Green Party member in this House.

That is why, as a member of New Zealand First, I am concerned that an environmental body will be able to give out its powers to someone who is not even a member of that body and whose experience could be greatly in doubt. In New Zealand First we are concerned about the things that are happening to the environment. I think we all have our views of the way in which the country is going. We are concerned about the overseas conventions. We talk about genetic modification, we see what the Americans are trying to do to Europe and such like in that regard, and here we are giving New Zealand’s Environmental Risk Management Authority the right to delegate decision making to someone with no relevant experience.

My view on this might be totally wrong; it might be based on complete ignorance and be totally without foundation. I would like the Minister to clarify the situation and make sure that my concerns are without foundation. At this stage I do not know, because the Government has sprung this amendment on us in the Committee stage, in its usual arrogant way, during urgency and without any consultation or discussion on the issue. For it to expect members of this Committee to support such an amendment shows that it has little regard for the environment. It does not care about the environment at all. I think in New Zealand First we are showing that we have the utmost care and concern for the environment. We want an explanation from the Government. The Green Party members are in cahoots with the Government, and I am sure they will be voting for the amendment. They have no real regard for the consequences of what is an absolutely dreadful amendment. If the Green Party does not agree with me, then its member can take a call to explain what it means.

On the face of it, this amendment is the worst example possible of authority being delegated. Authority should never be delegated. We have seen the problems that the Regulations Review Committee, of which I am a member, has with Orders in Council. I am so concerned that I will be supporting the National Party amendment in this respect, because the way in which this legislation is set out allows any amendment to the Stockholm convention to become law without any consideration by Parliament, and that is totally unacceptable. The Government has done the right thing—and the previous Government did the right thing, too, as I suspect this measure has been around for as long as that—in bringing this legislation to the House, but now it is spoiling it in the sense that any amendment to it will not necessarily have to come back to Parliament. There seems to be a contradiction there. If one brings a convention to the House, surely one should bring amendments to the convention to the House, as well. It is a great practice to have conventions listed in statutes, but that convention seems to be being broken by the Government.

I am disappointed that neither Marian Hobbs nor Chris Carter seems to be at all interested in this matter, and that no Minister is going to take the call to answer my query. I am very annoyed that that is the case.

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): I will take one more.

These are very serious matters. As a member of the Foreign Affairs, Defence and Trade Committee that considered this legislation, I can tell members that the concerns of the Regulations Review Committee with respect to the way this legislation might enable an outside authority to import into New Zealand’s domestic law matters that this country has no say in were dealt with after the select committee really finished with this legislation. I remain concerned about that issue, and it is my view that the select committee has not dealt with it adequately. When one reads the select committee’s report, one can see how confused the committee was on it.

In my last contribution, I would like to address clause 8, which purports to provide exemptions from the Act for small-scale research on hazardous substances. Clause 8 has to be read in conjunction with section 33 of the principal Act. Section 33 provides for exemptions from the Act for small-scale research on hazardous substances. As I read it, if we amend section 33 by adding the new paragraph (ba) in clause 8 of this bill, research on persistent organic pollutants will not be possible. I do not think that is what is intended, because if we cannot do any research on persistent organic pollutants, how can we ever improve the way we get rid of them? They exist, and like polychlorinated biphenyls, they will be around for a long time, and research needs to be done on how to get rid of them.

But the select committee is very confused in what it says. The committee says it looked at clause 8 to see whether any clarification was required on the issue of research on hazardous substances in relation to persistent organic pollutants. It goes on to say that clause 8 needs to be read in the context of section 33 of the principal Act—which is quite right—and that the effect of clause 8 is that if the small-scale use of a substance in research and development creates or involves persistent organic pollutants, then the provisions of the Act are deemed to apply. But the provisions of the Act say that one cannot do that.

I say to the Hon Trevor Mallard that if I am wrong, I am very happy to be proven to be wrong—

💬 Hon Trevor Mallard: You’ve got to read it in the context of the rest of the Act, and at that point it does not matter.

Dr the Hon LOCKWOOD SMITH: I have section 33 right in front of me, and if we add what clause 8 asks us to add, which is a new paragraph (ba), I cannot see how that would allow any research at all on persistent organic pollutants. That is why I have proposed an amendment to omit clause 8—we do not need it. Section 33 already covers the use of hazardous substances in research. It is already protective of New Zealand, and if we do not amend the Act, it enables careful research work to be done to improve the way we handle persistent organic pollutants. That is important research, and I am blowed if I can see how that would be allowed. I am no lawyer; I absolutely accept that, and it may be that clause 8 does, in some convoluted way, allow the use of persistent organic pollutants in research.

But I say to the Hon Trevor Mallard, read what the bill says. It states that: “Section 33 of the principal Act is amended by inserting, after paragraph (b), the following paragraph: “(ba) the use does not create or involve a persistent organic pollutant;”. That means that the exemption that is normally provided for small-scale research under section 33 must not create or involve a persistent organic pollutant. I do not see how that can possibly allow small-scale research on persistent organic pollutants. I think it is worth the Minister taking a call to point out how the law would work to enable small-scale research on persistent organic pollutants. It is an important issue, and we must be able to continue research on it. Polychlorinated biphenyls will exist in this country right through till 2016 at least, and their use will be allowed right through till then, so research is very valuable in terms of how we will dispose of them.

I fail to see how clause 8 enables the use of persistent organic pollutants in research, when it seems to very specifically say the opposite—which is that one cannot use persistent organic pollutants in small-scale research. I really would appreciate the Minister explaining how that would work.

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): The question is that the question be now put.

I raise a point of order, Mr Chairperson. ACT New Zealand has not had a call on Part 2 of this legislation.

The CHAIRPERSON (H V Ross Robertson): That is right. I looked to see whether you were seeking the call, but you were not—

I have been following the debate, and I really want to address the point that was just raised. It was a very important point.

The CHAIRPERSON (H V Ross Robertson): I have already agreed that the question be now put, and therefore I cannot go back on that.