Imports and Exports (Restrictions) Amendment Bill

I wish to speak specifically on two issues found in new sections 3A and 3B, inserted by clause 9, concerning the prohibition of exports and the conditional prohibition of exportation. I know that my colleagues have some very thoughtful and considered amendments for those sections, which I would like to speak on later.

I ask members to think of this situation: a lawful activity occurs in New Zealand that results in the production of the goods to be exported. We then have to ask why we would be lawfully producing these goods in New Zealand, but then prohibiting their export. It seems a far more sensible and proper approach, if there is a concern about the environment—and this is, in essence, what this legislation is about—to prohibit the production of the goods in the first instance. That, presumably, is where the mischief is caused. I cannot believe that it would be the intent of the Government to allow New Zealand businesses to produce goods for internal and domestic consumption, or to use those goods within the industrial process, but then not to allow those goods to be exported.

Surely we should have a principled approach that says if the goods are permissible in New Zealand then they are permissible for export. If that is not the position, then I feel we have done exactly what the Hon Ken Shirley raised—signed up to a series of international conventions that, on the face of it, look well intentioned. I note that they specifically focus on persistent organic products that get bound into the food chain in particular, and I guess most people would recognise the dangers of those; that seems rational. But surely those goods are also prohibited from being manufactured in New Zealand. That is the question I would like the Minister to address.

What are we trying to do here? Are we trying to prevent exports, or are we trying to prevent the production of those goods? There should be a single test, and that test should be: if the goods are genuinely dangerous to the environment in any shape or form, then the production itself should be banned. I can think of dioxin as a particularly good example of that, as it is a persistent organic product that one would want to prevent from being produced or admitted into the environment. After all, the explanatory note states that: “Persistent organic pollutants (POPs)”—and dioxins and those kinds of products are included in that category—“are amongst the most highly toxic substances on Earth. They are transported by ocean and air currents, and bioaccumulate in the tissues of living organisms. There are clear human health and environmental advantages to their substantial reduction and elimination where feasible.”

That is all very well and good, and I think generally acknowledged as a desirable outcome. The approach that I would commend to the Committee is to ban their production. Thereby, that will necessarily mean we do not get exports, because we cannot export something we cannot create in the first instance. What is now raised by the structure of the legislation is the prospect that we can quite lawfully produce things in New Zealand, but we cannot export them.

I turn to another point. The view is often taken that, for instance, plastic bags are a terrible pollutant, but in fact they are not. They are an efficient use of resources. The mass of an individual plastic bag is vastly less than a paper bag. It is hugely less. It would be in the order of one-twentieth, in weight terms. Plastic bags take less energy to produce, they are more useful for the purpose for which they are manufactured, and when they are disposed of—presumably in a landfill—we have lost virtually no resources at all.

Part 2 of the Imports and Exports (Restrictions) Amendment Bill is the part that has the action in it. Clause 9 in particular empowers the Government, by Order in Council, to set regulations and prohibitions on exports. It is quite informative to go back to the Act we are amending—the old Import Control Act of 1988. I have it right here. That Act does not have anything to do with hazardous substances. It has nothing to do with the conventions we are talking about today. The old Import Control Act empowers the Government to control imports, to prohibit the import of goods of any specified class or classes—and it goes on. That is why we are so concerned about the width of the powers that this amendment to the Act gives the Government under clause 9. If we look at clause 9, we see that it is a very broad power.

Under new section 3A, “Prohibition of exports”, inserted by clause 9, it is stated: “(1) The Governor-General, if satisfied that it is necessary to give effect to an international obligation, may, by Order in Council, prohibit the exportation from New Zealand …”. I have proposed an amendment to that clause to tie it in more tightly to the international obligations spelt out in section 2(1) of the principal Act. I know that some could say that that is not totally necessary, but it makes it far clearer. If there were no confusion about this matter, why was the select committee concerned about it? The select committee noted that the powers being given to the Government in that provision enabled it to exceed what was required by those conventions. The select committee was concerned about that, and that is why the committee questioned the Government on it. I am not sure, though, that we should be satisfied with the answer, which is “that the Government has no intention to exceed the requirements … listed in clause 6 of the bill”.

Let me summarise my concerns. The Act we amend, the Import Control Act, is very broad, powerful legislation that enables the Government to ban any imports. We are amending that very wide empowering legislation with this amendment bill, which, although it will not give quite such broad powers with regard to restricting exports, will still give very broad powers. There are two possibilities the Government could choose to overcome these concerns. One is my proposed amendment to clause 9, which would limit the powers the Government is being given under clause 9 to set regulations very tightly back to the international obligations in clause 6. Another possibility, which I think my good colleague Judith Collins will be proposing, is to delete new paragraph (e) inserted by clause 6(1), because that provision again gives the Government far broader power. I will not say too much about that, because I want Judith Collins to be able to describe her proposed amendment, but I think the fact that we are both putting up amendments to try to limit the breadth of the power that clause 9 is giving the Government, shows the extent of concern about that.

I tell the Committee that it was something the select committee was concerned about. Members will notice that its report on the bill does not say: “The minority on the select committee were concerned about it.” It was a general select committee concern. In fact, my notes on the day record that we talked about it. I noted that we had quite a lot of debate at the select committee over this issue of whether the legislation intended to provide for prohibition of exports beyond that required by those conventions. At the select committee that day, Ministry of Foreign Affairs and Trade officials told us that that would risk constraining trade. They did not say it could not be done, but my notes here record that they reminded us that it would risk constraining trade. What happens if we get a Government that is even more left wing than this one and does not care about trade? This legislation would enable such a Government to constrain trade. The Ministry of Foreign Affairs and Trade officials went on to say that the legislation might risk breaching our trade obligations, but those trade obligations are not the tightest, given where international agreements have got to.

So there is a genuine concern, and I commend the Government to consider the two amendments to Part 2 that the National Party is putting forward.

This debate on Part 2 is becoming quite repetitive. I do not mean that in an obstructive or unhelpful way, but I believe the debate is on the same theme. We want to support this legislation; I get that from all parties. We are telling the Government we are right behind the legislation, because it is sensible, and successive Governments have engaged in those international agreements—the Waigani, the Rotterdam, the Stockholm, and so on and so forth. But I say to the Minister that it is clear we are concerned that the legislation will be extended to cover substances other than those specified in those international agreements. Amendments have been proposed, not to go against the Government’s policy direction or upset it in any way, but to spell out and make quite clear what we as legislators intend to do.

Again, in Part 2 it is directly applicable. Section 3A, “Prohibition of exports”, inserted by clause 9, states: “(1) The Governor-General, if satisfied”—in other words, restrictions can be removed if the Governor-General is satisfied—“that it is necessary to give effect to an international obligation …”. I emphasise the word “an”. That could be any international obligation. We are saying it should specify those international obligations outlined earlier on in the bill. That is all we are asking for; that would spell it out very clearly.

We have had well-drafted amendments, and I suggest that the Minister should just admit that the Opposition has made some very valid points here. It is not really a question of pride, because I know that the Minister is bigger than that. We are from the Opposition, we are here to try to help the Minister, and we ask her to adopt our amendments. I call upon United Future to see the logic of that, please, even if the Minister does not. United Future members should not be doormats. They should not just roll on their backs with their legs in the air and say, “Tickle my tummy.” They should stand up for what they believe in, because it is so obvious that this amendment is sensible.

We see it there in new section 3A inserted by clause 9, and also in section 2(1)(e) in clause 6, “Interpretation”: “any other international obligation that is or becomes binding on New Zealand and that provides for the restriction on, or the prohibition of, the exportation of certain chemicals, products, organisms, wastes, or other substances that pose a risk to human health or to the environment”—that is, everything. It could be plastic bags. It speaks of any future obligation, so one of those wacky, non-governmental organisation - controlled UN forums could adopt a ban on plastic bags. We had a very good speech about plastic bags being friendlier to the environment than paper bags; that is the reality—but it could be on fat, on sugar, or on oxygen. Oxygen is potentially very dangerous to the human body in its pure form—very, very dangerous. This is the nonsense we get into when we have these omnibus-type clauses expressed as generally as that, so I think the suggestion of deleting the proposed new paragraph (e) is sensible. That provision is not necessary.

The other recommendation, which is the repeated theme, is that we specify and confine the restriction to those substances covered by the international agreements, which the Government itself has acknowledged that it intends to do. Opposition parties say that we should make the bill state what we are all in agreement on. We all agree that it should be restricted to those substances covered by those international agreements, and that the bill should say so. The Government can understand our worry, particularly when we see the generality contained in that new paragraph (e) inserted by clause 6(1). It speaks of any substance, and of any future obligation. We do not know what the future holds for some of those UN forums, and we really are tying our hands in an unnecessary way.

The solution looks very clear. Perhaps the Minister should have a chat with her officials and talk to her colleagues. Perhaps she should give the Leader of the House, Michael Cullen, a ring. I am sure he would see the logic of this sensible amendment. We would give the Minister credit for recognising the merits of these amendments, rather than just arrogantly refusing to accept them and leaving the problem in the legislation. The Government has the numbers. We accept that, but often in life the more power one has, the more responsible one has to be: the greater the power, the greater the humility. This is a good example of when the Government should recognise a good idea when the idea is presented to it. I urge the Government to adopt it, then we can move forward.

I would like to speak to Part 2 of the Imports and Exports (Restrictions) Amendment Bill, and in particular to propose that new paragraph (e) amending section 2(1) of the principal Act, contained in clause 6(1) of the bill, be deleted. I ask that that happen because I believe it is very important that, no matter what we in Parliament do and no matter what the Government does, New Zealand does not get landed with international obligations decided by a group of non-governmental organisations, as mentioned by the previous speaker, that never come before the House. That is one of the real problems we have. Paragraph (e) includes as an international obligation “any other international obligation”—that is, in addition to the conventions that have been mentioned—“that is or becomes binding on New Zealand and that provides for the restriction on, or the prohibition of, the exportation of certain chemicals, products, organisms, wastes, or other substances that pose a risk to human health or the environment”.

We have talked about plastic bags and beech chips—or chipped beeches—this morning. We could also talk not only about oxygen but also about things used by defence forces around the world. I understand there is an industry in New Zealand that supplies items of defence to the defence forces around the world. Of course, our own Defence Force cannot afford them. I would hate to see that sort of industry in peril because some wacky Minister, either in this Government or in another Government, decides that some wacky overseas group’s view sounds like a really good idea. It is very important that, no matter what we do in Parliament, we are here to do the best for New Zealand in our own way. Clearly, New Zealand does not want us passing wide-ranging Acts that state that Governments, or officials who work for Governments, can sign us up to obligations that Parliament is bound by.

I have talked to members of other parties whom I thought would see some sense, and I have been heartened by the support from ACT New Zealand—the liberal party—and New Zealand First, as well as my own National Party. I was very disappointed with United Future. The reason I was particularly disappointed was that United Future members told me they have a 2-day rule, which means one has to give them an amendment 2 days before the bill comes to the House. I explained to them that they could not do that sort of thing, because they are supporting the Government that has put us into urgency, and, no doubt, it has discussed with them the bills that it will put forward, but we in the Opposition do not get the chance to know what is in the Government’s mind. I am sure the Government does not even know what is in the Government’s mind, most of the time. Here we have an amendment that clearly is for the betterment of New Zealand and this bill. We would all be very happy to support the bill, absolutely and unreservedly, if we could get some sensible amendments to it.

We do worry about what could happen. The Government has sat on this stuff for the last 4 or 5 years without doing anything about it, and is now rushing it through. We are being told it might take some time to fix up any other agreement, so we must have this omnibus provision that means that anything is included as long as we can say it could pose a risk to human health or the environment. Anything can do that. Does it include tobacco being exported? I presume it would.

💬 Hon Ken Shirley: We used to grow a lot of tobacco.

We still do. There are all sorts of things we could talk about here. Alcohol would certainly be something that can pose a risk to human health, and I am sure that some members here would agree with me on that one—not naming anyone in particular. This is an important issue. We should be making law that is very, very specific. It should identify the problem and deal with it specifically. We do not need a Parliament to provide laws that are wishy-washy, go on for ever and have no end, and are just there in general terms; we could just get rid of it and have a dictator.

I move, That the question be now put.

Thank you for the opportunity—

💬 Hon Ken Shirley: I raise a point of order, Madam Chairperson. I am sorry to interrupt the member. It is a point of clarification as to what our House rules are. I was enjoying my hot cup of Milo, and I was advised by one of the messengers that the rules are that we can have glasses of cold water but we cannot have mugs of hot Milo. Is that the ruling? I am not trying to dob the messenger in; I am just trying to get clarification of what the restrictions might be.

The CHAIRPERSON (Ann Hartley): It is certainly my understanding that water only is allowed in the Chamber.

💬 Hon Ken Shirley: Thank you for that. I had better leave, then.

Thank you for the opportunity to speak on Part 2 of the Imports and Exports (Restrictions) Amendment Bill. I want to commend to the Committee the sensible amendment proposed by Judith Collins, the member for Clevedon, who is a very good and very perceptive member. She realises that it is very, very important to ensure from time to time that we are not too restrictive. If her suggestion is not applied, New Zealand could be put in a situation of signing up to any other international obligation. The Government has a great opportunity to realise that her amendment is common sense.

As for United Future, which is pivotal in determining whether that constructive suggestion does indeed amend the bill, the Hon Ken Shirley said that this is where United Future can really show its true colours as to whether it is a party of common sense that exercises practical, good judgment. I can see Paul Adams over there, nodding away. Here is an invitation to United Future to do exactly that and support Judith Collins’ very sensible amendment, which would delete new paragraph (e) of section 2(1), in clause 6(1): “any other international obligation that is or becomes binding on New Zealand and that provides for the restriction on,” etc. Clearly, it is quite inappropriate for New Zealand to be put in a position in which suddenly, out of left field, there comes a binding international obligation that is inappropriate for New Zealand. We would then have to undo this sort of legislation. The point is that the public should realise that United Future is facing a test to show whether it is true to its record of being a common-sense party. I hope its members will take up the suggestion by the National member for Clevedon, Judith Collins, that paragraph (e) be deleted.

The other really important amendment is obviously that of Dr the Hon Lockwood Smith relating to new section 3A, in clause 9. It amends it by inserting after the words “international obligation” the words “specified in section 2(1)”. That would indeed confine the requirements to the conventions that all of us understand are relevant to this bill: the Stockholm convention, the Basel convention, the Waigani convention, and the Rotterdam convention. They are both highly important and eminently sensible amendments that would make this legislation appropriately tight for the purposes it serves for New Zealand.

I note that the original Act that is being amended, the Import Control Act 1988, is of course being changed under this legislation. After the commencement of this measure, the principal act will be called the Imports and Exports (Restrictions) Act 1988. That is sensible and appropriate because it is indeed inappropriate for it to be called just the Import Control Act. Even more sensible, if we are going to follow that line, would be if the Government on this occasion took note of the sensible and constructive suggestion made by National. Here is an opportunity to make this much more lasting and relevant legislation—

I move, That the question be now put.

It is frustrating for members on this side of the Chamber, because I thought we had shown a lot of consideration and goodwill, and the amendments that we have proposed have been consistent. I saw that we even got a lovely smile from the Minister in the chair, the Hon John Tamihere, which actually was quite disturbing because I think this is a very serious issue, and the way he smiled at it means he is not taking it seriously. Maybe I can make a serious plea to him and take him slowly through our argument again to see whether we can convince him. I think if the Minister has ambitions to be the leader of the Labour Party, he has to show a lot more willingness to listen to the public and to the Opposition parties, because this is a very important issue.

I myself have put an amendment to the title to clarify the scope of this legislation. I have proposed that instead of just calling this legislation the Imports and Exports (Restrictions) Amendment Bill, we actually change it to the “Imports and Exports (Restrictions on Hazardous Substances) Amendment Bill”. If that amendment had been accepted—and I was disappointed that United Future would not take an independent stand on this—then at least the members on this side of the House could have felt slightly comforted, and would not be voting against particular provisions in paragraph (e) of section 2(1)—in clause 6(1)—and in clause 9.

I plead for the Minister to accept the sensible amendment to new section 3A, in clause 9, put by my learned colleague Dr the Hon Lockwood Smith. When we read new section 3A(1) we see it states: “The Governor-General, if satisfied that it is necessary to give effect to an international obligation,”. It does not even mention the international obligation that, we are told in the explanatory note, by Order in Council can prohibit the exportation from New Zealand of specified goods, or goods of a specified class or classes. I think Dr the Hon Lockwood Smith’s amendments make so much sense. All the Minister had to do was say yes to four little words: “specified in section 2(1)”. It is a very, very crucial but simple amendment that would not delay the passage of this legislation, yet would clarify its purpose.

I would like to think the Minister wanted to pass good legislation. Far too many times we have seen legislation being rushed through this Parliament, and before there has even been time to implement it properly the officials have come back to request amendments to it. To avoid this type of problem, the Minister just needs to have a quiet word with the officials. We can assure him that the officials would say that if the Opposition cooperated, making that change would not lead to a delay in the passage of this legislation. It makes much more sense to accept the amendment proposed by Dr the Hon Lockwood Smith. All that the amendment says is that clause 9 should not go against the intention of the principal Act.

Why is the Labour Government so suspicious of the Opposition parties? We have already indicated clearly, at the outset, that we are going to support this legislation. I think these pleas are falling on deaf ears. I will make a promise in the House, like I did with the Fair Trading Amendment Bill (No 3): we support the legislation, but it could have been made much better, so in 2005, when National comes back to this House as the Government, we will definitely make these amendments. I am just trying to reassure the public and people who have concerns over this legislation that we may have to accept it for the time being, but we assure them that we will fix it.

💬 Hon Ken Shirley: I raise a point of order, Madame Chairperson. You will recall that some 10 minutes back I raised the issue about whether we could drink a hot mug of Milo, which is available and served in the lobbies. You were not sure, but you indicated that you thought not. The messenger has just been kind enough to deliver to me a copy of the sheet that the messengers take as their instructions, and it is from Mr Speaker, dated 30 November 2002. Item 30 lists articles not permitted in the Chamber. It states that the following articles may not be taken into the Chamber or galleries unless approved by the Speaker, and it lists bags, including briefcases; satchels; haversacks; umbrellas; cameras; etc. But item 5—

The CHAIRPERSON (Ann Hartley): The member needs to get to the point.

💬 Hon Ken Shirley: I will be as terse as I can. Item 5 refers to food or drink. I put to you that water is a drink. We certainly do not bring our lunch in here, and we would not bring a bottle of Coke, but I would like clarification of whether a hot mug of coffee is acceptable. For the smaller parties in particular—I do this on behalf of the smaller parties—there is a problem when their members are alone in the House and need a hot drink, but also need to follow the debate, as they can have a hot drink out in the lobby only. I would like a ruling on that matter. Perhaps over the lunch break you could consider it.

💬 Gerry Brownlee: This is a new point, and it is also something for you to consider over the lunch break. It might be interesting if members were to see how the Speaker felt about his interpretation with regard to practising hobby interests in the Chamber. You will recall that some time ago the Speaker ruled that knitting was permitted and, indeed, cleaning a carburettor on a desk would also be permitted. Perhaps the member is a hobby coffee drinker.

The CHAIRPERSON (Ann Hartley): The member knows very well that there has been a ruling on that.

I move, That the question be now put.

The CHAIRPERSON (Ann Hartley): The closure is not accepted.

Sitting suspended from 1 p.m. to 2 p.m.

I move, That the question be now put.

I wish to turn directly to the amendment proposed by my colleague Ms Judith Collins, because, as I signalled at the outset of the debate on Part 2, it is a very important amendment, and one that I would like the Government to seriously consider. It is basically an issue of constitutionalism. If one looks at clause 6, one will see that paragraphs (a) through to (d) refer to specific conventions, and the intent of the legislation is to enact specific conventions. For instance, there is the Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, the Convention on Persistent Organic Pollutants, the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and the Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region. All of that is reasonable and the proper way of doing it. The legislation should name the particular conventions that our Government has adhered to.

However, the Government has also added paragraph (e), which refers to “any other international obligation that is or becomes binding on New Zealand” relating to hazardous wastes. The difficulty is this: Parliament implements by statute the domestic enforcement of international conventions, and those conventions should be known to parliamentarians. That is the constitutional process that is being followed, and it is well understood. It is surely wrong to give a general power to the executive to add in and sign other conventions, without giving notice to Parliament. I ask the Minister and his officials to reflect on that issue, because I cannot believe it is the intention of a Government to bind the country through domestic legislation—and that is the key point—to conventions that are signed up to without first referring them to Parliament for re-enactment .

I will put it this way: think of the process of entering into international law conventions. The Government sends its officials to an international convention and we sign the convention—that is the normal process that occurs, and that is an executive role. It is not always necessary, but where there are domestic considerations, the Government then puts to Parliament that the convention should be enacted into our domestic legislation, and that normally requires a specific statute. This statute today is precisely that, in that it is implementing the four conventions that I referred to. The proper constitutional process is therefore that as each convention comes up, a statute is created for each of them—and perhaps for a group of them—to implement that convention. To give a general power that enables the executive to just put any convention to do with hazardous wastes into law without coming back to Parliament is surely wrong.

This Parliament is the supreme law-making authority. It is wrong for the Government to use its majority to negate the power of Parliament to transfer our fundamental obligation, which is the determination of our domestic law, to the executive. That is effectively what will happen. To draw a proper analogy to demonstrate the seriousness of this matter, it is the equivalent of ruling by decree: the Government would be signing conventions that would say that those conventions will hereafter be the law of the land, because some statute—possibly passed decades ago—provided that path. That cannot be the right approach to constitutional provisions.

I will make one final point. The Opposition is supporting this legislation. We are asking the Government to recognise the serious intent that my colleague has drawn to the Committee’s attention and to support the amendment.

I move, That the question be now put.

I too am interested in clause 6, “Interpretation”, and I know my colleague from Auckland, Judith Collins, put in an amendment to that clause. I would love to have a copy of that amendment before me, but I have just loaned it to a colleague. The amendment seeks to delete paragraph (e) of clause 6(1). It is a one-sentence amendment, but I believe it is of huge significance to this Parliament. Clause 6(1) seeks to amend section 2(1) of the principal Act “by inserting, in their appropriate alphabetical order, the following definitions” relating to “international obligation”. The obligation that this Labour Government wants us to sign up to is in paragraph (e), and states that: “any other international obligation that is or becomes binding on New Zealand and that provides for the restriction on, or the prohibition of, the exportation of certain chemicals, products, organisms, wastes, or other substances that pose a risk to human health or to the environment”.

Members opposite will know that we are supporting this bill. We certainly want a prohibition on the exportation of certain chemicals, products, organisms, wastes or other substances that pose a risk to human health—we have no argument with that. However, we say let us see the mischief first, because paragraph (e) refers to “any other international obligation that is or becomes binding on New Zealand …”. In other words, a treaty will be signed overseas—presumably by a Minister on the advice of officials—and, because of this legislation, it will automatically become binding on New Zealand through the statutory process. It will go straight through the executive, but it will not pass through Parliament, at all. No one in this Parliament will get to look at it—members may not even be aware of it, unless they are particularly vigilant, and dig around to find what Ministers are doing when they traipse overseas to attend various conventions.

Any protocol that is signed up to regarding the restriction of such chemicals and organisms could provide an opportunity for a non-tariff trade barrier, which would mean other nations trading with New Zealand putting up barriers to us exporting our products and making a dollar overseas. Such conventions could be used, and if this particular subsection passes, they would not undergo any scrutiny in this Parliament. There might be essential chemicals that pose a health risk to people to a greater or lesser degree, but it might be a lesser degree, and it might be a far greater mischief if the chemical were not used and was not present in export products. One could quite easily argue that certain chemicals are used to increase the life of a product. The damage they do in terms of health risk might be very minimal, and if such chemicals were not used at all, the health risk could be quite excessive. Yet, with this measure, if someone overseas did a deal and signed certain chemicals off in a heated moment—and mercury is one such chemical—this Parliament would not get to scrutinise that action, and I am concerned about that. Not only could a protocol be passed automatically before concerned members of Parliament got to see what had been signed up to, but also we could not unwind it very easily. We cannot unwind those obligations.

I would hope the Ministers overseas, traipsing about the world, signing up to this, that, and the other thing, as this Labour Government has done, would take it very, very seriously; that signing up to something is one thing, but passing it through legislation, statutory requirements, is quite another. To unwind on those obligations is quite a task. To have it automatically passed through this Parliament via this clause is of great concern. Process is very, very important.

I move, That the question be now put.