New Organisms and Other Matters Bill

Now we are into the meat of this bill, the biggest chunk—

💬 Shane Ardern: What, GE meat?

—no, not GE meat—of the legislation, and I look forward to this being one of four calls I will take on this part. This is the complex and detailed part of the bill, and it needs the close attention of the Committee. I want to raise two very important points in my short contribution—but the first of many contributions—to this part.

The first relates to the Minister’s power to call in applications. We see in the bill that the Minister may direct that he or she will decide an application if the Minister considers that the decision on the application will have “significant cultural, economic, environmental, ethical, health, international,”—I am not sure about the grammar there actually, I say to the Hon Brian Donnelly from the select committee; I am not quite sure that that flows properly—but, most important, “or spiritual effects;”. This clause 36 is, in effect, the GE-voodoo clause, because it is just nuts to be putting into legislation phrases like “cultural” or “spiritual” impacts.

We spoke at length about this issue in the second reading debate, and it is going to become a focal point of this part of the debate. I ask the Minister in the chair to take a call on it. She has been very quiet during the course of the Committee stage. An important and critical point to make is this: how are we as a country to measure objectively those types of criteria? I say to the Minister that the amendments offered by the National Party to omit the words “cultural”, “ethical”, and “spiritual” from that clause should be voted for across the parties in this Committee, to ensure—[Interruption] There goes Jill Pettis again, scaring all the wildlife. The simple fact of the matter is that these clauses are unworkable. As a lawyer, I say to this Committee that they are exactly the type of thing that only one group in our society will benefit from—the lawyers. Lawyers will make a fortune out of this stuff—so some good will come of it!

I say to members opposite in the Labour Party that they should vote for Paul Hutchison’s amendment and get rid of this nonsense. They should show that they are credible and that the line they are taking is one of scientific reason, and they should get rid of this nonsense. New Zealand First is offering an amendment similar to that offered by us on this side of the Chamber in the form of Dr Paul Hutchison’s amendment—the removal of the word “spiritual”—but it wants to keep the word “cultural” in the bill. I say to that party that it should get some backbone and should take out “spiritual”, “cultural”, and “ethical”. Let us start dealing in science. Let us start dealing with rational thought.

With the greatest of respect to the Minister, I say that what she believes is spiritual and what the rest of us believe is spiritual could be worlds apart. I suspect that that is probably right—

💬 Jill Pettis: You have been corrupted by the National Party. You used to be such a nice young man.

Lord knows, there has got to be a better place on this earth than having to listen to that! Maybe we do have something common on the spiritual front. But the simple fact of the matter is that those of us who are wound up about this coming Rugby World Cup may consider it to be spiritual.

💬 Hon Brian Donnelly: I do.

Of course the member does—and rightly so. Others, of course, have quite a different view of what is spiritual. This clause is nonsense—absolute nonsense. If we are to have legislation proceed on the basis of reason, science, and logic, then clauses like this must be removed. They will be nothing but trouble, and are worse than those currently contained in the Resource Management Act. These clauses will create nothing but trouble and nothing but uncertainty.

I turn briefly to the issue that, I have to say, has most concerned me personally, which is the issue of the shifting of burdens of proof. In Part 7A, the pecuniary penalties and civil liability clauses, the shift that the select committee agreed to worries me greatly. New section 124B(3), inserted by clause 48, previously stated: “The Court must not make the order if it is satisfied that the person did not know, and could not—”.

Just referring to the comments of the previous speaker about the call-in powers and the criteria, I say that New Zealand First certainly has an amendment ready. It does not go the full way of National’s amendment, but we will be voting for National’s amendment, and then there will be a back-up. If National loses the vote on its amendment, that party can back ours. These provisions are a nonsense. I think I mentioned Druidism, and that is basically what we are talking about here. That makes a mockery of this particular law.

Part 1 of the bill is the guts of it, and it has so many different, quite critical parts that need to be discussed and debated here as we go through the Committee stage. I want to focus upon one area that is so important to New Zealand First. I would like members to remember that it was New Zealand First votes that ensured that the moratorium went on in the first place. It was not the Green votes. If members recall, the Greens walked out and did not vote. New Zealand First voted to put on the moratorium, because we believed there was some critical work to be done. We believed that the royal commission had implied that certain other things needed to be done before New Zealand started to progress any commercial applications. We said that, come the time when the moratorium would cease to exist, we would reassess the situation to see whether the Government had got its work in place.

In some respects we are satisfied, to a degree, with the element of conditional release. We believe that that is a step forward in risk management—very much a step forward. Therefore, we would be very supportive of this. However, throughout all the submissions and throughout this whole process we have been looking very carefully at the evidence, to ask ourselves whether the Government has got itself ready at this time to be able to do all the risk management around this new technology. We largely believe that it has got itself there, except that what has come through very clearly is that once we start getting higher up the human food chain, there is more and more economic risk. It is not that any real risk to health has been demonstrated, but there is a risk in terms of consumers’ perceptions, and consumers’ perceptions obviously make a difference when it comes to their decision making.

I want to make the point that Ashraf Choudhary had one question that he continued to ask everybody. He asked whether there is any evidence that GE is doing any harm to human health. Every one of the submitters he asked said there was no evidence that he or she could put on the table. The Greens would argue that that is because the research has not been done. But we have to take as a reality that there is no empirical evidence, or even theoretical evidence, that there is harm. However, what we do know from research is that there are fears within certain parts of our export markets that GE could possibly do harm, and that we do not know all about it.

💬 Hon Ken Shirley: Fearmongers.

There are all sorts of fearmongers out there. We know that the most sensitive markets to this are Europe and also Japan, and some of the modelling that has been done certainly shows there are some real concerns in terms of whether we proceed down the path of commercial release of anything higher up the human food chain.

The Government will argue that it does not really matter, because in the next 2 years it is highly unlikely there will be any applications; certainly, it will be at least 5 years before any ryegrass applications. So we are talking about quite some time into the future before any applications for commercial release of anything close to the human food chain happen. New Zealand First therefore argues why we are risking the image of New Zealand by saying we can go ahead with foodstuffs. We have no objection to our going ahead in some of the other fields. One of the things we picked up in Australia was that Ingard cotton has obviously not had any implications in terms of Australia’s exports of non-GE foodstuffs. So consumers are able to separate those things out, but certainly they do have fears.

One of the questions we asked of the Environmental Risk Management Authority—and even the Minister today could not tell us for sure whether the authority will have its methodology in place by the time the moratorium is lifted—is whether it can do an adequate risk-assessment of the impact on the New Zealand economy of an approval of release of a GE food into New Zealand. In looking at the model that is used, we would say that, yes, it could probably give an assessment of what effect the release of GE-modified onions here would have on the export of onions. What the model does not show is what the impact would be on dairy products.

I would like to rebut some of the comments made by the New Zealand First member who has just resumed his seat. He started his speech, if members can remind themselves, saying he opposed everything that was not based on science and the evidential method, and opposed all the cultural references. He then went on to observe that there is no evidence whatsoever of anyone becoming ill, anywhere in the world, caused by GM food. So he accepts the science and the evidence of that, but he then says that, because of some sort of mystical marketing perception, New Zealand First did not support that position. That is a very strange stand to take, I must say.

There is also the contradiction that people are happy to have medicine with GM, and we all want to see that, in order to fight some of those terrible diseases. For example, we know that the cholera GM organism is a living organism, and it is in the environment and has saved millions of lives, and that is great. But there is a difference between medicine and food. Medicine is actually in the body. One absorbs it internally into the bloodstream, into the systems of the body. Food is just in the alimentary canal, which technically is outside the body; it is in the tube that sort of runs right through the cylinder of the body. So there is no logic in saying, on the one hand, we will embrace GM for medicine, because that is good, but, on the other hand, we will not accept it in terms of food. There is no logic in that position, at all. I would urge New Zealand First to rethink that part of its position.

I support the National Party’s Supplementary Order Papers put forward by Dr Hutchison, dropping this humbug about these new “cultural and spiritual dimensions”. Members will recall the Resource Management Bill where we had the huge debate, because this Government had introduced the term “cultural landscapes” and “spiritual landscapes”. Under the heat of the Parliament it backed down. Thank goodness it did. But in this bill these sorts of terms creep in again. The Government is trying to put in something that is not scientific. I am not debunking people’s right to hold spiritual beliefs and cultural expression, but in passing law that is essentially science it should be based on evidential science. If people want to believe in tooth fairies, or leprechauns, or hobgoblins, or taniwha, or whatever, it is their right to do that.

💬 Hon Dover Samuels: What do you believe in?

I could sit down with the member and tell him what I believe. I actually believe in evidential science, above all. That is what this bill must be based on. Because once the Government starts getting into the secular and the metaphysical, how on earth can one objectively make determinations and decisions based on those broad sorts of concepts? It is really a licence for all manner of delays and frustrations.

I think the point was made by Mr Power that the lawyers are the ones who will make the money. We know that the law firms in Wellington already have whole floors specialising in this sort of “clipping the ticket”, as do all the consultants. That is where the money goes. All that means is delays and upfront costs, which reduce New Zealand’s competitiveness, because it is non-productive nonsense. But that is what this measure will be introducing into this legislation.

I am not sure whether the officials recommended it. I would hope not. I think this stuff is actually of the Government’s own doing,. It does not belong in this bill, and please, we would like the Minister in the chair to take a call to explain why it is there. I am just trying to catch the attention of the Minister, who seems to be engaged. I ask her to take a call and explain. Perhaps there is reasoning behind it. I cannot understand why there is reference to cultural and spiritual matters in this legislation. I do not believe that it belongs there. The ACT party says it does not belong there. There is no rhyme or reason for it.

Overall, we are supporting the bill. We are concerned about some of these measures, and I have just outlined a few of them. I would like to think that, as we pass through the Committee stage, even at this late stage we can make amendments, as we did with the Resource Management Bill. We did improve that by dropping those references that did not belong there.

I would like to speak on the five amendments in my name that are on the Table at the moment. The first is on Supplementary Order Paper 150. This amendment inserts new clause 6A, which rewrites paragraph (e) of section 6 of the Act. It is a relatively small and narrow amendment to the Act, but it fills, I think, an important gap. Section 6(e) is about matters relevant to the purpose of the Act, and it states that the Environmental Risk Management Authority must consider economic benefit. At the time that the 1996 Act was drafted, it was assumed that the environmental and health effects of new organisms might perhaps be negative, that the economic effects of new organisms would be positive, and that the Environmental Risk Management Authority was going to have to weigh up one against the other. It was not really envisaged at that time that the economic effects of releasing GE could themselves be negative in some circumstances, so we have only economic benefits and not economic costs.

We know now that it is quite possible to have severe economic costs from the release of genetically engineered organisms, and that those costs to the economy are not the same as the financial effects on the person actually releasing the organism. So my amendment simply adds in costs to benefits, and requires the authority to assess economic benefits and costs, and in the process it applies to hazardous substances as well as to new organisms, and I think that is an advantage, as well. So I would commend that particular amendment, set out on Supplementary Order Paper 150, to the Committee.

I refer now to Supplementary Order Paper 149. The first amendment inserts new clause 6B, which amends the section of the Act that deals with the precautionary approach. The Government has been talking about this constantly. If it has been saying anything about this bill it is that it is taking a very cautious approach, but the Hazardous Substances and New Organisms Act states that a cautious approach is optional. It is not actually required that the Environmental Risk Management Authority take a cautious approach, at all. It actually states that the authority should take into account the need for caution. If ever there was a prevarication, that is one.

The Act is actually based on an approach to risk that decides how much risk is acceptable, and it requires therefore an ability to calculate the likely consequences of doing something and the likely probabilities of doing something, and weigh up whether that outcome is acceptable. But one actually cannot do that if the risks are not known in advance. We are dealing here not with risk and probability so much as with uncertainty, and in fact ignorance. In the face of uncertainty and ignorance about the likely effects of a new organism, what we need is caution.

So my amendment adopts wording from the Rio declaration of 1992—signed by the Government of New Zealand, I have to say. It has similar wording to that used in the Fisheries Act, which is law in New Zealand now, and it makes the precautionary approach mandatory by stating: “where there are threats of serious or irreversible damage, lack of full scientific certainty must not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. That is standard wording used for the precautionary approach in many parts of the world in many bits of legislation.

The second amendment set out on that Supplementary Order Paper is to clause 18. The amendment addresses the concerns of the many local authorities who came and spoke to the select committee and said that they wanted to have a say about whether GMOs could be released in their area. So it simply provides that when the authority has agreed to a release, then the applicant must also get the consent of the local authorities administering the areas where they want to release it, before that can occur. That is in the spirit of the Local Government Act, which devolves authority and decision making to local authorities and puts them in charge of looking after the well-being of their people, which is what local government was asking the select committee for.

The third amendment simply extends the expiry clause of the moratorium and of the other matters that expire at the same time. It is not commonly realised that it is not just the moratorium that expires on 29 October but also a number of very important conditions around the use of living vaccines—animal and human vaccines that are themselves living organisms.

Thank you, Mr Chairman, for the opportunity to speak on this hugely important part of the bill. I hope that there will be opportunity for some repeated calls, particularly because, like Jeanette Fitzsimons, I have put forward a number of substantial amendments, which basically try to make this bill practical as well as scientifically rigorous. The Minister in her initial speech on this bill said that the Government decision in response to the Royal Commission on Genetic Modification should take place by providing a practical framework for proceeding with caution in the management of new and genetically modified organisms while preserving opportunities. Yet we have a bill that is essentially, sadly, a Clayton’s moratorium, because with the combination of the case by case analysis, the public consultation, and the ridiculous widened call-in powers, it is almost impossible for certain applications to have any hope whatsoever of getting in. That is particularly so when it comes to medium and high-risk research, which is the area that the royal commission made absolutely clear is vital—in fact it used the word “critical”—that New Zealand makes sure continues.

I will make some comments on the widened call-in powers. When I asked the Minister the other day why she included “cultural, spiritual, and ethical” she said it was because the royal commission had recommended that to happen. In actual fact, the royal commission recommended as one of its major conclusions the formation of the Bioethics Council. That has been put in place particularly to address those issues at a higher level. Secondly, it also supported the Māori consultation committee, which is attached to the Environmental Risk Management Authority. Undoubtedly, with those two underpinnings this bill addresses cultural, spiritual, and ethical issues probably more so than it needs to anyway. But then to add in this absolutely absurd suggestion of “cultural, spiritual, and ethical” in a scientific method to work out risk analysis is clearly right out of place.

At the select committee, Sir Paul Reeves was asked whether he could explain to us the principles of the treaty. He could not explain them to us. He had no way of explaining them to us. As people in my electorate have said, is it right that the spiritual, cultural, and ethical values of one group be given more importance that those of another group? I think that Simon Power made the point that the spiritual values of one person in New Zealand may be totally different from those of another. In the electorate that I am so proud to represent, there are Māori, there are Indians, and there are Chinese in large numbers, and their values are clearly vastly different, and hopefully will be addressed at a higher level by the Bioethics Council.

So putting those provisions in the bill, as my colleague Simon Power pointed out, is only going to give a field day to the lawyers, and it is going to impose absolutely impossible hurdles on those sincere applicants who are trying to progress science and are trying to progress instruments that will help humankind and the environment. Instead, this Labour Government, as usual, cannot help but impose impossible compliance costs on just about every piece of legislation it sees.

The explanatory note recognises that there are “enforcement and liability issues” associated with the release of new organisms. The key point of this is that GE release may potentially result in harm to individuals or the environment that is not covered by present law. The explanatory note also goes on to describe how a new statutory strict liability regime will be put in place. It sounds great, but it is just rhetoric. If members look at the bill they will see that it does not happen. It fails to deliver.

The strict liability regime described in the explanatory note is limited to compensation for harm caused by activities in breach of the hazardous substances and new organisms legislation. If a GE release goes feral in some way, there is liability only if the hazardous substances and new organisms legislation has been breached. If the law has not been breached, there is no protection under statutory liability. In the event that, say, an application was in some way defective or, perish the thought, the Environmental Risk Management Authority made a mistake, or there were unexpected adverse effects, there is no liability. The applicant is within the law.

The effects, however, on individuals or the environment are just as serious irrespective of whether they were foreseen or admitted by the applicant. Why should the Environmental Risk Management Authority provide what is effectively an insurance policy to private individuals who put in an application and gain consent to release genetically modified organisms for their personal gain, when innocent members of the public have no protection? I think that that is a very reasonable question, and members of the Committee should vote in favour of Jeanette Fitzsimons’ amendment.

There are lots of types of damage that can be serious to the individual, and one that I am not sure has been addressed is the idea of brand name. The wine industry, for argument’s sake, has spent millions of dollars promoting its “riches of the clean, green land” brand. If there were a GE release in this country that for some reason went badly awry, and this country became known as a GE country, which it is in danger of doing, what happens to the clean, green image? It is very difficult to put a figure on that, but it is, none the less, easy to establish that people have suffered damage. People have not broken any law, yet they are being damaged and they have no protection in a legal sense.

Basically, the odds are stacked very heavily against the innocent. There is not even a requirement in this bill for the applicant to be a person of substance. It does not have to be a big company, or a person who puts up a bond. The most likely scenario is that the people who put up the application will be a shelf company—“Monsanto No. 22 Shelf Company 1999 Inc.” So when something goes feral it goes out of business and that is the end of the story.

I want to turn to section 124H(2)(c), which allows companies and directors to absolve themselves from liability if they “did not know, and could not reasonably have known” of a breach. We have occupational health and safety legislation in this country. Surely, the very least that a company engaged in GE release can do is to have a very, very strict risk management programme.

💬 Simon Power: They will!

According to this legislation they will not. It needs to clearly identify all of the risk and set out the responsibilities, the audits, the staff training, and the reporting requirements. It is not good enough for a company to say that it did not know of a risk because it did not bother to look for it. It is simply not good enough. The Minister should also pause and ask herself for a moment why it is that big companies want to do this in New Zealand. Why do they not do it in America? If they put a GE release out in America and something went wrong they would be sued to blazes. The liability regime in New Zealand is pathetic. That is why people want to do it here.

It is with great pleasure that I stand to speak in favour of this bill, but with some very deep reservations.

💬 Hon Rick Barker: Remember Myrtle!

Clearly, an agricultural piece of machinery is a new organism for that Minister over there! He has never seen anything like it in his life. [Interruption] I would love to participate in the debate with the Minister opposite, but I had better come back to the bill. I am disappointed that he left the chair, because I am sure he could explain some of the questions I am about to ask the Minister with regard to this part. Is it not true that when Henry Ford first opened his factory the good residents of the area rose up and beat on the side of the factory with sticks, wood, and all manner of machinery because the machine that he would mass produce would kill thousands of people and frighten the horses? Is that not true? Can the Minister answer that question? The answer to that is that it is true.

Are we are not in exactly the same situation here today where we are looking at high-tech, modern, state-of-the-art, science-based technology, and there is a fear of it— and, justifiably, there is a fear of it. It is the fear of the unknown, and a fear of where it might go, but at the end of the day will we become like those citizens way back at the time when Henry Ford manufactured his car, who beat on the side of the factory because it would kill thousands of people and frighten the horses? That is where this Government is at with this issue.

I would like this Minister present now to stand up to explain to us what “cultural, spiritual, and ethical” means with regard to this bill. It is simple enough. One can usually explain these things without too much effort. I am sure the Minister will be able to explain it in very simple language so that those of us from the country can understand it. I am sure that she will, but so far she has not, and it is still a question. Nobody actually knows what it means.

The royal commission spent months and months, and $6.5 million I am told—at the request of the Green Party, as a deal done with the incoming Labour Government and the Green Party—pondering over this question, and what did it come up with? Nobody actually knows. It said that it is a difficult issue to resolve. The Environmental Risk Management Authority has turned itself inside out over this question. It has spent hours going through what it means. It has spent months and, no doubt, thousands or millions of dollars, I am not sure, but it is certainly a huge resource being employed to try to figure out what this means, and it does not know.

I am sure the Minister will be able to answer this riddle. I am sure that Simon Power, my very good colleague, has got it bang on when he stated that this is the “most likely to buy the new Mercedes for the lawyers” part. I am sure that is what it is. I am sure it is out of concern for our poor, hungry, starving lawyers around the country that the Government has inserted this part. I am sure that that is so. I know that the member for Tukituki has a particular concern about the profitability of lawyers. I am sure that that is the reason that he insisted that this should be in the legislation, but the rest of us really do not know why it is there, and we would like that answered.

I have one theory, and the Minister can tell me I am wrong if I am wrong. I think it is a typical Helen Clark Prime Minister outcome, where one can go around the country and tell businesses: “We’re lifting the moratorium. We’re going to do what the businesses want.” Then they can go across to the Green supporters and say: “We’re lifting the moratorium, but we are tying it up in so much mumbo-jumbo hocus-pocus that nothing will ever go anywhere, so you’ve got nothing to fear.” It is a typical Helen Clark Prime Minister outcome. She can also go to Māori and say: “Well, we’re looking after your interests. We’ve put into this part of the bill that the Māoris are well taken care of. We’ve no idea what the hell it means but we’ve put it in. So you have nothing to fear from this Government. We will look after your best interests.”

When I left off—[Interruption] The member for Tukituki yells out. He has a big workload signing all those JP nominations. He should get back to his huge workload, which will consume him for months. Before we were interrupted I was talking about the issues of liabilities and penalties, and changing burdens of proof in respect of issues in this clause. I want to say—[Interruption] The member has shifted his seat to gain an advantage, Mr Chairman. Members on this side of the Chamber just want a fair go.

I refer members to the comments in the minority report of National and ACT, in which we noted the advice from officials that there was nothing sufficiently different about genetic engineering, from a liability perspective, to justify a liability regime that is different in principle from those applied in other scenarios. That is an extremely important point, and it is a point that the officials ran us through many times. The GE situation is no different in principle, when designing a liability paradigm, from any other legal scenario. Yet what do we see in the bill? We see new section 124B(3), inserted by clause 48—a small but significant change, which, I have to say, has not only worn me down but has, I am sure, worn the officials down with my going on about it. I tell members that this is what the section did say. It stated: “The Court must not make the order”—that is, a pecuniary penalty order—“if it is satisfied that the person did not know, and could not reasonably have known, of the breach.” That is the original standard that was applied, which is a fair, reasonable standard, with a burden that lies more or less on the court, actually, to satisfy itself that a liability or a breach had not occurred.

Now, what has gone in by way of amendment is this: “The Court must not make the order if the person satisfies the Court ...”. So the burden shifts from the court being satisfied in its own mind—those sitting on the bench—that the applicant did not know or could not reasonably have known of the breach, to the person—the applicant him or herself—having to satisfy the court that that test had been met. That is a significant change in the application of the burden. That is a substantial lifting of the hurdle of the burden on the applicant. There is no explanation as to why that amendment occurred, when the officials told us in the Education and Science Committee that GE of itself does not demand a different liability regime from that which would otherwise apply in any other legal scenario. Government members have not satisfied members on this side of the Committee as to why that change has occurred.

I say this to the Minister. I have been in this House now for 4½ years, and on each occasion I have spoken on a bill when that Minister has been responsible, she has taken a genuine interest in the course of the legislation that was proceeding through the House. I have watched that Minister listen carefully to submissions and contributions that have been made in the range of the portfolios that she has held, and I cannot believe that on an issue as important as this—an issue that will lift this moratorium and, in the minds of some, create a very difficult situation—the Minister of the Crown responsible for this legislation has not once got to her feet to explain to this Parliament and to the people of New Zealand why those clauses relating to cultural, ethical, and spiritual values, which we are all so worried about on this side of the Committee, are in there, and why the liability regimes imposed in this particular piece of legislation are different from others, despite the advice of the officials. I say to the Minister that previously she has been prepared to stand up and make a contribution on pieces of legislation like this. I know the member is an honourable member, and I ask her to take the next call, make a contribution on those two points—which have been covered so many times by members speaking in this Committee—and enlighten us as to why the Government has made those changes.

I am taking this call not because I have been invited to by the honourable member over there but because there are three issues that I want to deal with. First of all, there is the issue to do with call-in powers. I can hear members commenting, and there are obviously amendments saying please remove the words “spiritual, cultural, and ethical”. I think it is fair to say that this Government has spent a lot of time listening, and it has obviously expended money, as Mr Ardern pointed out, in setting up the royal commission. The Government listened to the royal commission, and, but for one or two, it accepted the 49 recommendations.

The royal commission, on whom was put a bishop, à la an ethicist—at least I hope he is an ethical bishop—asked us to consider, and expressly recommended, this particular amendment, which the Government agreed to. A call-in is a discretionary power for the Minister for the Environment. That is all that has happened. It is not how one makes the decision. A call-in is when probably something might arise that in generic terms has been alerted to me by the Bioethics Council. It might say: “There are a whole lot of things happening overseas in this particular area, particularly with ethics, and we are worried about them.”, then one particular example of that generic one arrives in New Zealand in terms of an application. My ability as a Minister is to add one or two specific people, if I call it in, to the authority to consider it, and I either reject their answers or I do not. So this is not about hocus-pocus. Ethics is, for those of us who have been brought up by Dominicans, something fairly serious, and I know that spiritual matters can be difficult in a society that is largely not so spiritual—I cannot think of the opposite.

💬 Simon Power: Secular.

I thank the member. In a secular society it is difficult. But that is the reason. It is not actually the decision-making process; it is just adding two people to the authority—just as we had an ethicist on the royal commission.

The member asked about the definitions. They are the ordinary, standard dictionary definitions, and I will not pull them out because there are probably about 10, and they can have fun. Now I will try to give an explanation on the reverse burden of proof, which is an issue the member raised. The Government policy is that this provision, requiring the defendant to satisfy the court that he or she did not know and could not reasonably have known of the breach of the Hazardous Substances and New Organisms Act, is akin to a defence to pecuniary penalty proceedings. It is appropriate that the defendant establish the elements of the defence to the civil standard of proof in the same way that the defendant is required to prove any of the defences in the proposed section 124. I will leave it at that, and, again, if there is an argument on it, I am listening.

While we are talking about liability, I want to run through the speech given by Ian Ewen-Street. I put to him this scenario: he buys himself a car—I presume that even though he is a Green he has a car. He buys a car that has met—

💬 Ian Ewen-Street: I have a bicycle.

Well, a bicycle then, that has met all the specifications. But he does not have one—I had better use the car example. He makes sure he has a warrant of fitness, he does everything right, and he goes on the road and is completely within the Road Code. He does not break any of the rules—nothing. Then, for some ungodly reason, the steering wheel, or another part, completely shatters, and he hits somebody. Here is the question: I ask Mr Ian Ewen-Street whether he should be liable—because that is exactly what he is saying to people who put in an application through this process and who follow all the rules and all the regulations. He is saying that if some unforeseen thing occurs, then they should be fully liable. Now, that was explained to us by the officials.

💬 Hon Ken Shirley: He does not bang cars. He would understand that.

No, no, he would argue that the way to get cars off the road is to make sure that those people could be sued for $10 million. That is it, basically, if one is in breach of the rules, and that was explained to us.

However, I want to raise the issue of local government t, because I think the local governments of New Zealand have been treated very shabbily with regard to this particular bill. On the one hand the Government is saying to local governments: “You look after the environment, and not only that, we want you also to consider the economic considerations, educational considerations, and all those things, but when it comes to GE we are going to ride completely roughshod over you. We have made a policy decision—the Environmental Risk Management Authority is the body that makes those decisions, and once the authority has made a decision, then you will have no say about it in your rohe.” One would think that the Government and officials would have said: “OK, this is a high-level decision, a policy decision, but we will sit down with local government and ask what the implications are in terms of how and what should go into this legislation to make sure that it’s very clear where authority lies, where liability lies, and where responsibility lies.” Instead, the Government did not even sit down with local government. That is why the Minister of Local Government is saying to local authorities that they should make applications on every particular case, and that is an absolute and utter nonsense.

The reality, as was clarified to us by the officials, is that local governments do have the powers to make by-laws regarding GMOs, but if they ever tried to enforce them, their backsides would be sued off them, and they would almost certainly lose. That was not 100 percent certain, so the only way it could be absolutely clarified is if a case were taken to court, and, as my colleague Simon Power quite rightly pointed out, that is not a satisfactory procedure. It is up to Parliament to ensure that we clarify what the situation is, and by the time it got to that stage and it was pointed out to us exactly—because we went on and on about this—what the lie of the land was, it was really too late for us to do anything about it without all the policy work that was required around a decision like that.

In the end, all we have ended up with—and this is one part we are very unsatisfied with—is that local territories, we believe, have been treated shabbily in the processing of this bill. It is most unfortunate, but it is the reality, and, as a result of that, we will be supporting the Greens’ amendment along those lines, purely and simply to make the point that this is not the way we should be developing legislation. [Interruption] No, we have to make the point; we have to stick with what we believe in. It is a matter of principles. In this particular case, local government came to us and said it wanted better clarification and wanted to know where it lay. We will have a situation where local governments put through by-laws that will have no effect.

I move, That the question be now put.

I raise again a matter that has been referred to on a number of occasions. It relates to concerns about the provisions allowing Māori to object to, and have influence on, the Environmental Risk Management Authority’s decisions on genetic modification and releases. The Minister did take a call and we thank her for that. She did that without needing to be invited by Simon Power, although she addressed every one of his questions and looked at him the whole time. We appreciate that. However, she did not address the key question raised in this debate by my colleague Paul Hutchison who represents a whole lot of people in Port Waikato, whom we have heard about tonight.

The key question was put to the Minister and I shall rephrase it: “Why are Māori getting three bites at the cherry in this bill?”. Members will notice that clause 8 contains a change in the eligibility criteria for appointment as a member of the Environmental Risk Management Authority. I shall read out the clause to the Minister to remind her: “Section 16 of the principal Act is amended by adding, as subsection (2), the following subsection: ‘(2) In subsection (1), matters’—and we can go back and look at what ‘matters’ means—‘includes matters relating to the Treaty of Waitangi and tikanga Māori.’ ”

That is the first bite at the cherry whereby the values, spiritual beliefs, and cultural heritage of Māori are taken into account in this legislation. But they get a second bite at the cherry, and we see that in clause 10. The National Party and others have raised these concerns before about special provisions for Māori. Clause 10 provides for the establishment of Ngā Kaihautu Tikanga Taiao, a committee with the express purpose of giving the authority advice and assistance, from the Māori perspective, on matters relating to policy and process. I am not arguing about that, but it is a second bite at the cherry. However, as if two bites are not enough, Māori are allowed to have a further go. The third bite at the cherry is provided by clause 36. I believe that Paul Hutchison raised this matter with the Minister.

💬 Hon Dover Samuels: Must be a big cherry!

Do not be surprised. This Government gives Māori plenty of big cherries, but Minister Samuels keeps rolling up for more. Clause 36 is titled “Minister’s power to call in applications with significant effects”, and we heard about the call-in powers for cultural and spiritual effects. Subclause (1) states: “The Minister may direct that he or she will decide an application under this Act if the Minister considers that the decision on the application will have—(a) significant cultural, economic, environmental, ethical, health, international, or spiritual effects;”. Basically, that gives the Minister carte blanche, but, of course, Māori again get the opportunity by means of a complaint about the cultural or ethical approach of the Environmental Risk Management Authority, or the ethical effects of any decisions made by the authority.

Can the Minister tell us why Māori get the opportunity to have effect, through membership of the authority, and their qualifications; why they have an opportunity to have influence through Ngā Kaihautu Tikanga Taiao; and why they can have influence by going cap in hand to the Minister to see whether he or she will intervene under the provisions of clause 36 in terms of cultural, ethical, or spiritual effects. We want to know why Māori do not get just one chance, like everybody else, but get three chances. Can the Minister answer that question? I do not see anywhere in the bill where the Chinese community—and I know that the Prime Minister has apologised to the Chinese community, so it is very close to her heart—gets an opportunity to have three bites at the cherry.

I move, That the question be now put.

I draw the Committee’s attention to a very important statement made a short time ago by Shane Ardern. He is a straightforward sort of bloke. He “calls a tractor a tractor”, and when he says something straightforward we should listen to him. He said that the introduction of genetic engineering technology is like the introduction of the motorcar. People objected, because it would kill thousands of people. So if we have a technology that has the potential to kill thousands of people, surely it is incumbent on those proposing it to show that there is some corresponding benefit. Everybody tells us that it was completely unreasonable for people to oppose the introduction of the motorcar, even though it would kill thousands of people—and it must be millions by now—because the motorcar provided considerable benefit to society. Maybe we should put—[Interruption]

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the honourable member, but interjections are getting a bit out of hand. I remind members to look at Speaker’s ruling 51/5, which provides that interjections are to be rare, reasonable, and relevant; and, I might add, restrained. It is beginning to sound like a hen house.

I think it is incumbent on those who wish to introduce this technology to show us where the enormous benefit will be from the release into the environment of living GMOs that would offset that very considerable risk.

I want to return to the matter I was discussing in my previous contribution, which was around the amendments on Supplementary Order Paper 149. I was saying that when the moratorium expires, the expiry clause applies not just to the moratorium but also to some very important protections that were put in place in last year’s amendment Act and that are also about to expire. Those are about the question of animal and human vaccines and medicines, which are themselves living organisms. They were exempt from the moratorium on release, but last year—as a result of our efforts, I have to say—two important conditions were included. One was that the GMOs could not exist viably outside the body of the animal or person to be treated, so that we do not get a population building up, in the soil, of living GMO bacteria or viruses that will then be ingested by every other animal that comes along, whether or not we want to dose it, and so on.

The second condition was that in considering such a thing, which clearly has greater risks than just a chemical, its efficacy for treatment ought to be compared with the alternatives. If there is no greater efficacy of a living GMO as a treatment, then it should not be approved if something else will do the job as well. Both of those very sensible provisions expire at the same time as the moratorium, and that is why I recommend my amendment to clause 39A, which actually prevents that expiry.

My amendment to clause 48 provides for strict liability if the organism causes harm, even if the law has not been broken. It has been said many times that GMOs pose a risk no greater than other risks. If that were the case, then it would be possible to insure against them. At the moment it is not possible, at the retail level, to get any insurance against harm from GMOs. That is the reason they must be treated differently. In fact, when the Law Commission examined this matter last year it also said that these organisms do actually present different and potentially greater risks than other technologies.

Finally, I want to welcome an important, although small, change made by the Education and Science Committee to clause 13, which responds to many of the submissions. As introduced, the bill states that an organism is not a new organism if it is an organism of the same taxonomic classification with the same genetic modification. That would mean that if the Environmental Risk Management Authority had approved a potato with a Bt gene in it, and somebody else came along with a potato with another Bt gene as part of quite a different construct, inserted in a different transgenic event, lodged at a different place in the genome, and potentially with vastly different effects, then under the original wording that could have been held to be not a new organism. The amendment that has been made, which adds “as specified in the approval” closes that loophole and only transgenic organisms produced from that particular transgenic event and covered by that particular approval will be regarded as not new. That I think is a move forward. It is one of the very few small improvements that were made in the select committee, and I welcome it.

I move, That the question be now put.

It is welcoming to hear Jeanette Fitzsimons say that the amendments to the taxonomic classification are an area where the Education and Science Committee members did work together and achieve a small, constructive improvement that everybody agreed on. But when the Minister got up and spoke on the call-in powers, I was concerned that she skated over the reality of what they are. I think she has said pretty well in this Chamber that if there were an application for commercial release of a GE crop in the next few years, then she would almost certainly use her call-in powers—and she sees that as almost impossible. I would like her to get up and explain to the Committee the real extent of those call-in powers, if used in the fullest sense. As I say, when she spoke on them she was very, very peripheral and superficial. She skated over just how extensive they might be, suggesting that they were of minimal importance. I think it is important that the Minister explains to the Committee just how potentially enormous those call-in powers can be, even on some of the most well-researched applications that come through.

The other thing I was interested in was that New Zealand First seems to have difficulty distinguishing between principle, populism, and the Greens—and I must say that that is an awfully difficult thing to have difficulty with.

I refer now to the Supplementary Order Paper I have submitted, on which I suggest that paragraph (c) be added to clause 4A in order to provide a practical framework for proceeding with caution in the management of new organisms while preserving opportunities. I think it is important for this provision to be placed in the bill. Certainly it is the rhetoric of the Minister, but unfortunately she has omitted to ensure that this practical framework, which was recommended by the royal commission, has been placed in the bill itself.

I go on to clause 18, because this provision indeed deals with one of the hugely complicated and almost impossible requirements of this bill, in terms of compliance. It inserts new section 38A, “Application for approval to import or release new organism with controls”. It states: “(2) An application for a conditional release approval must be in the approved form and must include— … (e) all the possible adverse effects of the organism on the environment;”.

We discussed this at length in the select committee, and, clearly, a case went to court and was ruled on. However, to ask anyone to describe all the possible effects is nigh on impossible, and I suggest to the Minister that my amendment to replace the word “possible” with the words “reasonable and practicable” is eminently sensible. I urge her to take note of that because, as I have said in the explanatory note to my Supplementary Order Paper: “To include ‘all the possible side effects’ imposes an unrealistic requirement on an applicant. The High Court ruling in the case between ‘Mothers Against Genetic Engineering Incorporated’, the Minister for the Environment, ERMA and AgResearch, noted ‘to apply a literal meaning to the words creates an absurdity, it would include effects known and unknown’.” The judge also went on to say: “The interpretation is to be approached with two principles of statutory interpretation clearly in mind: (a) the meaning of a statutory provision is to be ascertained from the text, in the light of the Act’s purpose; and (b) Parliament is presumed to legislate in a manner that produces a practical, workable and sensible approach.”

I move, That the question be now put.

I am just following on from Dr Paul Hutchison with regard to the wording of that particular clause. Members on this side of the Chamber argued very, very strongly when the Hazardous Substances and New Organisms Amendment Act went through that it was worded very poorly and would lead to litigation. It did lead to litigation in this case, and the judge ruled that a literal interpretation would be an absurdity. In other words, members of the Opposition were right all along. However, now that we actually have a judicial ruling on it, it would be another absurdity to put some other wording in there, because it could be relitigated. We could be opening up the thing again.

I want to refer quickly to the ministerial call-in power. People have not seen that this is a two-edged sword, and that it is not there just to create additional risk management elements. We could have a scenario whereby a Minister was very keen to see certain applications proceed. Under the interpretation of an application having significant economic effects—and one would assume that any commercial application would have significant economic effects—the Minister could call it in, put whomever he or she wanted on the Environmental Risk Management Authority board, then ensure that the decision that came out at the end was in line with what he or she had really decided upon. That begs the question of why we have the Environmental Risk Management Authority in the first place—if the Minister has call-in powers to that extent.

I go back, however, to the amendment that is very critical to New Zealand First. We would support this legislation, and support the conditional release category being brought in if it did not apply to foodstuffs high in the human food chain. At this stage, for applications along those lines, we ask why we should add to the risk. When asked in the Chamber, the Minister herself said that the first such application will be called in automatically. If it is going to be called in automatically, then there has to be something special in the particular case for that to be done.

We ask why we do not clarify the situation, put it off for a couple of years, make sure the methodology is correct, make sure that we have done some of our research in terms of market perceptions, then make a decision on it. It is not necessary at this point in time to rush ahead, when we are dealing with some unknowns. Economists like Caroline Saunders have raised some of these issues, and they have been ignored. New Zealand First has said that we should be sensible about this matter and go along those lines that we know will not have a negative impact upon our overseas markets, but in areas where there could potentially be risk, let us make sure that we proceed with extreme caution. In this case, it seems that the Government is rushing ahead on an ideological basis—and it has had fights with the Greens on that—rather than on what the evidence seems to be suggesting.

New Zealand First has taken a position on what the evidence is suggesting to us at this time, and it has come through with this amendment. We will not be able to vote for Part 2 if the amendment is not supported, because we believe that we would be putting New Zealand’s best interests at risk under those circumstances. We in New Zealand First have always said we should proceed with extreme caution, and the Environmental Risk Management Authority did not convince us that it has the methodology in place. The Minister herself knows that as of this date the methodology is not in place, yet the legislation is going to open up applications on 30 October for the commercial release of foodstuffs. We do not believe that that makes good economic sense, so New Zealand First will be voting against this part if our amendment does not stand up.

I move, That the question be now put.