Imports and Exports (Restrictions) Amendment Bill

, on behalf of the Minister of Commerce: I move, That the Imports and Exports (Restrictions) Amendment Bill be now read a third time. The bill has been discussed in the Committee stage at some length, together with its companion. I believe that all the issues have been thoroughly debated. I do not intend to delay its passage any further. However, I would like to thank the officials who have worked on it, and the Foreign Affairs, Defence and Trade Committee for its consideration of both the bill and the international agreements underlying it. I commend the bill to the House.

National supports the third reading of this bill. I started to wonder whether something was happening out there that we were not aware of, in the light of the very short contribution made by the Hon Paul Swain. It must mean that the Labour Government is really finding it necessary to pass this legislation in a hurry—except nobody is telling us why. We are still struggling to understand why this bill has to be rushed through its Committee stage and third reading during urgency. The National Party made it very clear at the outset, during the first and second readings, that we support this bill.

According to the explanatory note on the bill, it amends the Import Control Act to provide for the making of export control regulations, by Orders in Council, “to give effect to the requirements of—the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade: … the Stockholm Convention on Persistent Organic Pollutants: … any other international obligation 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.” The National Party is in agreement with that amending legislation, and we therefore express our disappointment that, in view of our cooperation in support of the legislation, some of the very sensible amendments we have worked through diligently and conscientiously in order to make a better bill have been largely rejected by the Labour Government. I would like to go through some of the amendments—to put them on record—that National believes would have made this a much better bill.

I started with proposing an amendment to the title to insert the words “on Hazardous Substances”. Therefore the title would have read much better as “Imports and Exports (Restrictions on Hazardous Substances) Amendment Bill”. We believe that, in the modern Parliament, titles need to be specific, so that when people read legislation they know its intention from the first glance. When we started to examine the bill we found it even more necessary to make the title clear and specific, because some provisions in the legislation could have led to all sorts of interpretation, or could have interpreted the power given by Parliament to make an Order in Council in a much wider way than Parliament actually intended. Unfortunately, when I put that amendment forward, although we had the support of New Zealand First, it was not agreed to. I would like particularly to express my disappointment with United Future. That party could have made a difference by demonstrating to the public that it can exercise independence in making sure that better legislation is enacted by Parliament, but apparently the senior Labour whip, David Benson-Pope, had also taken management of United Future’s caucus—to my disappointment—and I was told: “No way!”. They would not even consider the amendment.

In the event of that amendment failing, my colleague Dr the Hon Lockwood Smith sensibly put forward another amendment to new section 3A inserted by clause 9, “Prohibition of exports”. If I can have the indulgence of the House, I will read out subsection (1), because without my colleague’s amendment the public will not appreciate that the interpretation of this clause can be very wide: “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 of—(a) specified goods; (b) goods of a specified class or classes.” It goes on to state in subsection (2): “A prohibition may be—(a) general: (b) limited to the exportation of goods to a specified place or class of places: (c) limited to the exportation of goods to a specified person or class of persons: (d) limited to the exportation of goods by a specified person or class of persons: (e) absolute: (f) conditional.”

I think we get the picture now. This prohibition of exports can indeed be very wide, because it can give effect to any international obligation. So my colleague proposed an amendment to insert after the words “international obligations”, the words “specified in section 2(1)”, which refers to the principal Act. That means that if ever we were caught in being challenged by any entity, the court, with the words of the amendment inserted, would understand that a prohibition order could be issued only if it did not contradict the principal Act. I think that amendment would have made this legislation a lot clearer. Unfortunately, our proposal seemed to fall on deaf ears.

However, the National Party never gives up when we believe that legislation needs to be amended. We believe in making good legislation, so my very capable colleague Judith Collins proposed another amendment, which, hopefully, the Labour Government would take heed of. She sensibly considered clause 6, “Interpretation”, under which the meaning of “international obligation”—which we just touched on in clause 9—is spelt out. Clause 6 states: “international obligation means—(a) the Convention on the Prior Informed Consent Procedure …: (b) the Convention on Persistent Organic Pollutants …: (c) the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal …:”, and so on. About four conventions are spelt out under clause 6, which we might take some comfort from. Unfortunately, the fifth paragraph, paragraph (e), states: “any other international obligation that is or becomes binding on New Zealand …”. I think that the amendment my colleague proposed, saying that we should remove that paragraph, is an eminently sensible one. This Parliament should not try to make binding legislation on international obligations in the future, without even knowing the type of obligation we might find ourselves bound to.

The last thing I want to point out is that the bill has a statement about compliance costs, but it did not try too hard. I find it interesting that that statement, which is meant to spell out the costs and benefits of implementing this legislation, simply goes on to say that the bill is good legislation—that it is good for the health of New Zealanders, anyway—so we should pass it. The bill seems to suggest there will be no additional costs, apart from those in respect of the Ministry for the Environment and some secretariat contribution to the public sector. I do not take too much comfort from that, because, as I have just mentioned, quite a bit of the legislation actually binds us to future convention obligations, and I cannot see how one can come up with specific current costs in relation to such obligations.

I am pleased to rise in support of this bill. The bill has had significant debate during the previous stages, and I think one of the best things this House can do is to expedite its passage. Therefore, I will not speak any further on it, and I hope that we can facilitate the rapid passage of the bill through the House.

The Greens are happy to support this legislation, which implements several international conventions. It implements the Rotterdam convention, which requires the informed consent of the receiving country before sending it hazardous wastes, the Stockholm convention, which prohibits or controls persistent organic pollutants, including prohibitions on their export or import, and the Basel and Waigani conventions, which control the transboundary movement of hazardous wastes to ensure that there is the capacity to handle them properly.

In my first reading speech on the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Bill, I drew attention to the ways in which New Zealand is currently in breach of the Basel convention. Today I want to report on that in a little more detail. The preamble to this bill identifies the objectives of the Basel convention. They are the reduction in transboundary movements of hazardous wastes to the minimum amount that is consistent with environmentally sound and efficient management, their treatment and disposal as close as possible to the source of generation, and the minimisation of the generation of such wastes. The Ministry of Economic Development is responsible for implementing the Basel convention, and the ministry is not doing its job. It is perhaps not entirely appropriate that the Ministry of Economic Development should be responsible for administering such important environmental policy.

For several years now, New Zealand has been exporting hazardous waste in the form of used lead-acid batteries to a plant in the Philippines that the New Zealand Government says is capable of handling them, but that is, in fact, allowing the waste to collapse into a river and pollute river sediments to a level that would actually make that riverbed a lucrative lead mine. According to answers to written questions, the ministry has approved for export over the last 3 years quantities ranging from 200 to 2,500 tonnes of lead-acid batteries a year to that plant. In an oral question in December last year, I asked the Minister for the Environment about the monitoring we do of the hazardous wastes that we export to non-OECD countries and of the way they are treated in those countries. Pete Hodgson, answering on behalf of the Minister, did not have any information on that, and little information has been provided since. The Minister had previously defended exporting hazardous used batteries to a developing country, by saying: “Some non-OECD countries have perfectly sound disposal facilities.” That is the key to whether we should worry about battery exports to Philippine Recyclers Inc.

In an answer to a written question, Marian Hobbs told us that all facilities to which New Zealand sends hazardous wastes have been assessed by the Ministry of Economic Development for their capacity to manage hazardous wastes in an environmentally sound manner. We discovered that “assess” in that case amounted to receiving a letter from the Philippines authority that the plant met its requirements. But it is well known that one of the distinguishing differences between OECD countries and non-OECD countries is the institutional capacity to monitor and enforce Government requirements. The Philippines Department of Health Bureau of International Health Cooperation stated in January 2002 that the Philippines has weak enforcement of control measures and programmes on hazardous waste due to the inadequate expertise of those handling the inspections, and that the Philippines “has no legal basis for Government inspection of industrial operations in order to address under-reporting of production levels and wastes generated by factories”. So relying on the assurances of the Philippines authority is naive, to say the least.

When the Ministry of Economic Development assesses the capacity of facilities, it refers to the facilities being capable of handling hazardous wastes in an environmentally sound manner, but not to whether they actually do so. The actual record of Philippine Recyclers Inc. leaves me with a lot of concern. In 1990 it was found that some of its workers had seriously high lead levels in their blood, and some still have mental health problems and compromised immune systems. In 1996 the plant was found to be dumping battery waste illegally, leading to serious contamination, and the damage continues. We now have photographs of piles of lead waste sitting outside, exposed to the elements. A month ago, on 30 May, the retaining wall collapsed and dumped large quantities of battery waste into the river. We have other photos, too, but the one I have here is the clearest one to show the House. A month later, that wall has still not been fixed. We have the figures for upstream and downstream lead levels in sediments, and they are appalling. The lead level in some of those river sediments, measured outside the factory, is 24 percent—the level of a particularly rich lead mine. On all downstream sites the lead levels are many times above the acceptable levels; in fact, they are between 3 times and 300 times the levels that they are upstream of the plant.

In New Zealand certain permits are required to dispose of the residual waste to the most modern landfills. In the Philippines, the company has simply been stockpiling that waste since its practice of dumping it in remote, uncontrolled dumps was forbidden. Minister Tamihere has told us in response to another written question that the factory has international standard ISO 14001 accreditation, which sounds good. But the ISO standard is more about intentions and plans than about actual performance, and it is clear that the performance is abysmal.

But even if Philippine Recyclers Inc was not such a poor performer, New Zealand should still not be exporting its waste batteries overseas. Even if used lead-acid battery recycling is 98 percent efficient at recovering materials, there is still no known way to make the residual waste safe. By exporting used lead-acid batteries we are imposing the externalities of processing our hazardous waste on people in the Philippines. We have a moral obligation to deal with our own waste, and not to export harm. That trade is in direct contravention of the Basel Convention in two respects. First, it does not reduce transboundary movement to the minimum consistent with environmentally sound and efficient management. No one could describe the behaviour of that plant as environmentally sound. Second, it does not treat and dispose of the waste as closely as possible to the source of generation, because there is a battery recycling facility in New Zealand. Here in Wellington, and complying with all the environmental requirements of the Wellington Regional Council, is the Exide Technologies battery recycling plant, which cannot get enough batteries to keep it fully utilised and is importing them from Australia. So while New Zealand batteries are travelling the high seas to a destination where they will be recycled badly, with severe risk to the environment and people, at the same time Australian batteries are travelling the high seas to keep the New Zealand plant going. How stupid and how ludicrous can free trade get?

That is an example of why New Zealand should ratify the Basel ban, a further amendment to the Basel convention. The Basel ban stops the export of hazardous waste to non-OECD countries because they are unlikely to have adequate systems in place to handle it safely, and developed countries should take responsibility themselves for the waste that they create. It is not yet in force, and New Zealand is among the countries that has refused to ratify it. The Philippine Recyclers Inc plant, with its supposed environmental excellence, has been touted by New Zealand and others as evidence for why the ban should not be ratified. The evidence I have presented should put that nonsense to rest. New Zealanders are damaging the Philippines environment and the health of its people by sending their hazardous waste to a company that is supposed to have the capacity to handle it, but does not care enough to do so properly. It is out of sight, out of mind for New Zealanders, but not for the Filipinos.

I challenge the Minister, under the excellent words and objectives of the New Zealand waste strategy, to put a mandatory refundable deposit on all New Zealand batteries, so that there is an incentive to recycle them here. That used to be the case not so many years ago, before the free trade deregulation that allowed open slather in our markets. I also challenge the Minister to ratify the Basel ban and to side with the countries that are trying to improve environmental standards, rather than those that are trying to duck them. That is the context in which we support this rather limited bill, but we would like to see the policy go a lot further.

This is a sensible bill. I am pleased to stand in support of it, and I commend it to the House.

It was once noted by a chief executive of one of the major industrial companies of the world that it does not really matter about the standards that a company does or does not comply with, because, ultimately, companies that do not comply will not be around for very much longer. [Interruption] I am getting a bit of bantering from the Green Party, but I say to Ms Fitzsimons that the reality is, when we think about it, that those countries that have the highest environmental standards are also the wealthiest. Those that have low environmental standards and pour pollutants out into the atmosphere are those that are poor; that somehow believe that if they do not tap into resources their country is going to be extremely wealthy, because in fact, they are very, very poor. The logic is absolutely perverse.

This bill is about import and export restrictions. New Zealand, of course, is a country that lives by its exports. We cannot and will not survive unless we do export. I think of a product that we exported to the Pacific Islands—and, I believe, have stopped—that is regarded by the health authorities as a very hazardous substance. I am sure that Ms Kedgley would agree that mutton flaps, for example, which are exported to the Pacific Islands, are a hazardous substance to the health of those people. Do we now, by passing this bill, actually seek to ban the exports of mutton flaps? Now, I would agree that, to the Pacific Islands, that is probably a very sensible thing to do, but there may be other countries in the world that would very happily further process these products and turn them into something that we have not even thought of. But are we going to ban these products just for the sake of this legislation?

I sometimes fear greatly that we pass what seems to be quite sound legislation, only to find that the law of the unintended consequence triggers constantly because we do not understand the full implications of what we do—just as when we are exporting mutton flaps to the Pacific Islands. Perhaps that is not the greatest example, but it does illustrate that we did not fully appreciate—and the meat companies and farmers, probably—that this was going to have some quite deleterious effect on the health of the peoples of that particular region. I make this point: is it also a problem if we export hazardous substance to, for example, the arid areas of Australia, which very rarely sees a man or beast, by comparison with trying to do something with the substances, dioxin, for example, that we have in our own country, a very high rainfall country in this part of the world? Is it not a better idea to export to those parts of the world where these products can be contained and indeed not break down—if that is what they want to have happen—by climatic events? So it does seem to me that these sorts of issues perhaps have not been totally thought through.

I also think of the difference of opinion that many people have about what should be imported and what should be exported. I note that one of my colleagues in the Green Party would say that it is perfectly acceptable to introduce certain types of drugs into this country. I say that that is totally and utterly wrong. But where in this bill does it give me, or other people of like mind, some comfort that these things will not occur? Again, this is what we do when we put in what I would call a driftnet approach and allow the bureaucrats to determine what is going to happen and what is not going to happen.

I think it is incumbent upon the Parliament of this nation to actually specify as much as it can those things—which we believe, which we have learnt from constituents and indeed from our own research—on which we specifically wish to impose a ban that is not appropriate. But if new technologies come along, as they do almost monthly, or certainly yearly, and these bans then become totally inappropriate, we have to change our thinking. I think a very good example in terms of imports and exports is this question of genetically modified (GM) food. We have heard for a long, long time, for example, that the European Union would not allow the importation of GM food into Europe. We now know, of course, that it was nothing more than a glorified tariff barrier. It had nothing to do with food safety whatsoever. But there are sections in our society who utilise the scaremongering tactics and try to impose their will on other people for their own potentially very selfish reasons.

We found, just this very day—the Dominion Post reported it—that the European Union has lifted the ban on genetically modified foods. So it has accepted that the ebb and flow of imports and exports should take place. Yes, of course, it is always subject to some controls and some constraint, but we move into very, very dangerous ground when we start to impose control and regulation. As a farmer, I am certainly not going to stand in this House and say that we should not have sensible regulation, especially around the export of our food products, for example, which have, internationally, been regarded as probably the best in the world. We do also accept that from time to time there are absolute requirements, especially around the issue of DDT for example, and on the imposition of that product into our dairy products or our meat products. Although the world has an opinion that DDT should be banned, perhaps science could also give us a very good reason that DDT should not be banned. We will die of old age in this country before we ever die from an accumulation of DDT. So we do get things wrong.

While I am on the subject of banning substances like DDT, I have to say that I am not quite sure how many of us can live with our conscience when we realise that, in round figures, 3 million to 5 million people a year die because we refuse to allow the ebb and flow of a product like DDT to kill the malaria mosquitoes. That is highly significant. Again, this is one of the unintended consequences we have when we start, in legislative houses throughout the world, banning products that in an emotional sense or at a cursory glance do cause some problem. But the reality is that we have to rely on the science to get it right. Although science does not always happen to be correct all the time, by and large the science does come right, and we do get very, very good standards.

Finally, there is one other point that I would like to make, and that is that we do export. Dunedin City will be exporting a toxic substance as it pours sewage out into the ocean. I am sure the resource consent will allow it to do that. Where will that toxic substance end up? In the territorial waters of New Zealand? I suspect those toxic substances will end up anywhere the oceans’ currents take them. So those are the sorts of double standards that I would like to draw to the attention of the House and the public when we debate such issues. We have come to the third reading of this bill, but things are just not as clear as they would seem to be on some particular issues. But, in general, it is appropriate that this House agrees to ratify these international conventions.

I am proud to represent the electorate of Napier, which hosts one of the country’s busiest and most progressive ports. Against that background, I support this bill wholeheartedly.

The National Party supports this bill. However, we have some reservations. Unfortunately, we were not able to find a Minister in the chair during the Committee stage who could come up with some answers to some very sensible questions we posed; questions that arose from a tremendous amount of concern from all the Opposition. In particular, I have asked—and have been left wanting an answer—which other countries have signed up to the particular conventions that this bill relates to. No Minister in the chair has been able to tell us, and that is a concern.

Undoubtedly, this bill will place restrictions on New Zealand business and New Zealand exporters. We need to know, and we should have known, which other countries are also signing up to these agreements, and that should have been part of the commentary on the bill. We are left with a certain amount of cynicism in relation to this bill. Some countries are well known for their ability to pollute other countries—for instance, countries like the Prime Minister’s friend, France. Have the French signed up to this bill? Have the French said that they will no longer ship plutonium all around the world, and through our waters? The answer is that no Minister in the chair has bothered to answer that question, which is a question that the people of New Zealand, I am sure, would like to know the answer to.

In addition, one of the major concerns we have with this bill, apart from the stated conventions that have been signed up to by New Zealand’s officials—note, not by this Parliament—is clause 6, which inserts paragraph (e) into section 2(1) of the principal Act. Paragraph (e) states: “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”. Those obligations will in fact become the law of New Zealand, and that is a real concern. At the end of the day we must retain in this House the ability to make laws for New Zealanders and by New Zealanders. We should not ever say that some official and a Minister on a jaunt may decide between them that we will sign up to some convention and impose on the business people of New Zealand, and all the other people, all sorts of restrictions that they have not agreed to. None of those officials are going to end up, during an election, having to say what they have done for New Zealand or what they intend to do.

It is not fair on the people of New Zealand that we are being asked to vote for this particular clause, clause 6, and say that we are going to be bound by things in the future, when we have absolutely no knowledge, no understanding, of what will be contained in that. Some of the chemicals or products that we might be talking about that pose a risk to human health and to the environment would be things such as tobacco, alcohol, and illegal drugs.

As I am from a conservative party, I am, obviously, very opposed to illegal drugs, but there are perhaps members who feel that some drugs that are currently illegal should have some of the limitations on them relaxed. I wonder whether they are concerned as to what this bill does. It tries to say that New Zealand officials and the Minister could go overseas and tie us into obligations about the use, for instance, of tobacco, alcohol, or any other substance. What if we had a Minister and officials who thought we should be signing away the right to use fertilisers on farms? There is certainly an argument that some of those fertilisers, if incorrectly used on farms, might pose a risk to some part of the environment. I think we have to be very concerned about that. It is the potential for harm that is the concern, rather than, always, the actual harm.

At the end of the day, we do not always get these bills into the House on a timely basis. This bill has been languishing with the Government for the last year. That is how important the Government thought it was. The Government then shoves it through, under urgency, with no particular thought. That is the sort of thing that happens—we might not be able to address this issue if it becomes a concern.

I would like to take up some of the thoughts from the Green member who spoke previously. Of course, the Green Party always comes from its angle, but, having said that, I think that she did make some good points, and I would like to acknowledge that. I think one of the things she talked about was the issue of car batteries being exported to the Philippines, and the lack of facilities in the Philippines to deal with its recycling. If one looks at the countries of the world where the worst pollution happens, one sees that it happens in countries where there is the most corruption. That is what it is all about. It is politicians—obviously not in this country—who get paid off to be able to take in illegal products in any other country. It is that sort of thing.

I am not talking specifically about any particular country; I am aware of the concern over that, but when we look at some of the worst polluters in the world we know that there is corruption in officialdom, we know that there is corruption in politics, and we know that there is in fact a real concern over it. That is one of the reasons that I would really like to know which countries have signed up to this convention, and which countries will be actually required to look at it—because I do not think that it will make a scrap of difference. I do not think that New Zealand signing up to these sorts of agreements, and passing this bill tonight—as we will, because we have all agreed that we will make sure it is passed—will make a scrap of difference to countries like the Philippines and Indonesia, or countries in which there are all sorts of issues surrounding the issue.

Until we have a world that is a fairer place, and until we have politicians who commit to a parliamentary democracy—with its woes, problems, and everything else—we will continue to have some of the worst pollution in the world; worse than we have ever seen before, because the chemicals have got significantly more sophisticated, the land available for the disposal of chemicals has become less because of the world’s growing population, and the problems have become so much more. So it might seem slightly strange to people to find me, a National Party politician, agreeing with the Greens, but I find that I often agree with Sue Kedgley, my colleague on the Health Committee. We often agree on things. It is nice that in Parliament we can—certainly on this side of the House—look to each other and say: ‘That is a good point and I am going to agree with it.”

It is just a jolly shame that no Minister in the chair this afternoon—I have been in the Chamber all afternoon; most of the day—has taken any of these issues seriously, or has in fact asked—I certainly have not seen one—any officials for any comments. In fact, they have treated the views of the Opposition, in unison I would have to say, with a certain amount of derisory comment, which is very, very unfortunate. Certainly, I can say that the other parties in the House have been very supportive of statements that we have made. We are all, at the end of the day, in Parliament for the benefit of New Zealand, and I am very pleased to be able to support this bill.

I am pleased to rise, however briefly, in support of this legislation. I must say that it has been quite an interesting debate in the last little while. I am, frankly, bemused—as will be a lot of other members of this Chamber and listeners in the country—by the reluctance, or the apparent reluctance, of a party that states its support of this bill to actually take proper progressive steps to protect our citizens and our community from, among other things in our international responsibilities, the persistent organic pollutants that are referred to in the Stockholm convention. I thank the National Party and ACT for that statement, because, among other things, it will ensure that they retain their present polling levels.

This is just a short call to confirm that New Zealand First supports this legislation, although I think the speech from the senior Government whip was, in the circumstances, provocative and totally uncalled for. That tends to extend the debate and, more than anything else, the speech was totally unhelpful. If the Labour Government wants debates on things like this bill during urgency, that is a provocative situation, and it is not surprising that at certain times all Opposition parties decide that if the Government is going to do things for the hell of it, the Opposition, sadly, also feels that it should do things for the hell of it. This urgency should have been restricted to just the debates on the immigration bill and the health bill, rather than addressing simple legislation of this kind. In any event, New Zealand First supports the bill, and has nothing further to add to the matter.

I rise to take a short call and support the bill, and to note with interest Mr Jones’ sterling contribution. It is one that I am sure will be noted by no one outside this House, nor inside it.

I think this bill is sound legislation. It makes some substantial changes to protect people both domestically and internationally, and as a previous speaker said, its progress should be facilitated and the bill expedited swiftly through the House. I am sure it will be.

Those were truly generous comments from the previous speaker, were they not? Without reservation, I offer Mr Jones an accolade for his contribution to the House in the context of the comments he made on this bill.

It is right to say that National is supporting this bill, but we have reservations about some of its aspects, and it is really those reservations that I want to touch in this third reading. It is quite puzzling legislation in some respects, but its purpose is plain enough. The key measure mirrors the principal Act’s import-control mechanism, and provides for the Governor-General, by Order in Council, to make regulations that prohibit the exportation of specified goods. Such a prohibition may be on general, limited, absolute, or conditional terms. A conditional prohibition permits the exportation of goods subject to the grant of a licence or permit by the Minister.

There is the strange statement in the explanatory note that the enactment of the bill, together with certain amendments to other legislation, would enable New Zealand to ratify the Rotterdam and Stockholm conventions at the World Summit on Sustainable Development in September 2002. That date is clearly well passed, and this bill is not yet passed. One looks at its legislative history and sees that it was introduced on 21 May 2002. There was a first reading on 20 February 2003, and the select committee report was tabled in the House on 11 April 2003. So here is a bill that was introduced into Parliament for a defined purpose—to produce an outcome according to a fixed time frame—and it has simply not done that. It was apparently not seen as appropriate for the Foreign Affairs, Defence and Trade Committee—to which it was referred—to make any correction, because the committee’s report, notes, in effect, that the committee recommended that the bill be passed without amendment.

The specific issue I wish to pick up is the definition of international obligation in clause 6 of the bill. The bill is intended to give effect to the requirements of the Rotterdam and Stockholm conventions, and any other international obligation 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.

💬 Clayton Cosgrove: What about Monaco?

Mr Cosgrove’s interjection has just reminded me that when members of the House were looking at the Stockholm Convention, we discovered that there was a significant slip of constitutional importance in that legislation. That was because of the possibility that were the provisions of the convention to change as a result of protocols, side letters, or whatever—perhaps an amendment to the convention itself—those changes would pass into New Zealand law without the need for further legislation to incorporate those international treaty obligations.

In this bill we see exactly the same thing. In new paragraph (a) inserted by clause 6(1), under the definition of international obligation, one convention, “the Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade,” is defined. The definition runs on: “and includes the Annexes to the Convention, and any amendments to, or substitutions of, those documents that are or will become binding on New Zealand:”. The Rotterdam Convention is included in the definition that picks up later occurring action, but the fault is replicated in the other paragraphs of the definition, in respect of both the Stockholm and Basel conventions. The legal issue is known as “incorporation by reference”. It is commonplace to see references in secondary legislation to material that is incorporated by reference. That material might be overseas standards in respect of lifejackets, for example, or issues relating to the areas covered by the Codex regime.

I find it of concern that the Parliamentary Counsel Office has seen fit not to take up this issue and deal with it robustly, and in a way akin to the templates that have recently been developed for regulations. Once legislation incorporates international obligations, amending legislation—whether primary, secondary, or tertiary—should be enacted to pick up and move into domestic law any changes that have occurred at the international level in respect of those obligations.

I would suggest that the Legislation Advisory Committee, an entity in which there is both parliamentary and external input, should look at this issue at the primary legislation level—as it has similarly looked at it in respect of secondary and tertiary legislation—with a view to seeing guidelines developed and changes made to the Parliamentary Counsel Office drafting manual that are referred to in the Cabinet Office step-by-step guide.

It is against that background, and with the reservations I have expressed, that National supports this legislation. Its objective is a desirable one.

Bill read a third time.