Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Bill

I am delighted to take a call on this Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Bill. It is one that the National Party supports because at its heart is the intent to minimise costs to business and reduce barriers to innovation. However, the National Party has some grave reservations about the process used by the Government in coming to the final conclusion of this bill’s passage through the House. Unfortunately, the Government called for submissions over the Christmas break, and was due to have the deliberations very shortly after that, which really did not allow time for appropriate consideration. I think that on a bill such as this, which is highly technical in nature and for which there is large approval across the parties, it is important for the Labour Government to be prepared to go through a process that is well considered, so that the optimal result might eventuate. Unfortunately, the Government fell short of that.

The purpose of the bill is to facilitate the smooth transfer of hazardous substances from transitional controls to the appropriate control regime under the principal Act. There are a huge number of substances. In fact, out of 80,000 substances only 8,000 have been previously regulated. The Environmental Risk Management Authority had a huge task before it, and there was no doubt that appropriate, efficient, and effective regulations to achieve it were sorely needed. I think it is important to point out the huge range of hazardous substances covered by this bill, because they include just about anything that can be thought of, from explosive substances to flammable, oxidisable, corrosive, toxic, or eco-toxic substances, and the list goes on. That demonstrates the highly technical nature of the movement of something like 72,000 of these substances into categories appropriate for their very different natures. That is what this bill does: it enables the application of cost-effective controls to hazardous substances; and facilitates their transfer from transitional controls to the controls under the Hazardous Substances and New Organisms Act by changing the legal processes and constraints.

That is the reason we have supported the bill. We recognise that minimising business costs is a very refreshing change from what this Labour Government usually does. In some of the other hazardous substances and new organisms legislation, we have seen only more difficult regulatory regimes be put into place that have caused difficulties for everyday research institutes around the country. We saw just yesterday the Rubicon group point out that it was stopping its genetic research, because the regulations recently put in place by the Labour Government were too onerous for it. That is a hugely worrisome thing for New Zealand; clearly, as a country, we stand to gain so much from the economic growth possibilities that arise from the innovation that research, and wise regulations around it, can bring.

New Zealand First will support this bill, although we are uncomfortable with some of the processes that were used to bring it to this particular point in time.

One of those processes was alluded to by the previous speaker, and that was the timing by which the bill went through the select committee hearings. In June 2003 a strategy was set up that this legislation would go through the House by 2003. The key date in all of this is 1 April 2004; a strategy was set up so that 500 substances could be moved on that date. We can see in the bill that the commencement of this legislation takes place on the day after the date on which it receives the royal assent—in other words, as soon as possible after it goes through. The problem came about at the introduction of this bill in November, with a report-back date of 13 February that had not been discussed with the select committee. That meant that submissions had to be received over the Christmas break, then somehow heard, processed, considered, and deliberated upon in time to get this bill back to the House 3 days after it began sitting. That was totally inappropriate and inconsiderate and, in fact, treated this House with a degree of contempt. Fortunately, we were able to negotiate a bit of a delay so that the processes were more timely, but I point out that that is not acceptable practice. As I say, in some respects it is the executive treating this House with a little bit of contempt.

The second element that has to be pointed out is that the purpose of this bill is “to facilitate the smooth transfer of hazardous substances from transitional controls to the appropriate control regime under the principal Act;”. In fact, the principal Act says that there are a whole pile of hazardous substances that have to be transferred out of the Act that they were previously regulated by, and into the hazardous substances and new organisms legislation. That is basically what this bill is about. Unfortunately, the processes that were being used were just too slow. There were about 80,000 of these substances, and I think 100 have been processed so far. So the deadline of 2006 simply was not going to be met, and a more streamlined process had to take place.

But we have been led to a bit of confusion. I ask the Minister for the Environment whether she could clarify this for us. In the second reading speeches a number of members talked about 70,000 substances that are not controlled. In fact, we well know that they are controlled. Well, when I look at the select committee report, I find that that is exactly what it says—that 70,000 are not controlled—and it says it precisely because we put it in on the advice of the officials. That has led to some confusion. The figures the committee members were given say that there are approximately 80,000 existing hazardous substances, 8,000 of which were previously regulated—and this is the information we got from the officials—and that 100 new hazardous substances per annum come on stream and have to be put under controls. Further down is a flowchart of substances legally in New Zealand as at 1 July 2001, and it shows that, yes, there are approximately 80,000, which are to be transferred to the Hazardous Substances and New Organisms Act, and that there are approximately 100 new ones per annum. We do know that some have already been transferred, although we are not too certain. But the numbers we have been given seem to be very, very confusing: either 100 have not been given approval; or 70,000 are uncontrolled with, obviously, no approval; or 72,000 have approval and are legal, but have not been transferred; or there are 80,000 to be transferred.

All I ask of the Minister is that she clarify this point, so that members in their speeches from hereon in know what they are talking about. It would appear that the select committee report, as I look back on it, is not accurate, although it includes the details we were provided with at the time. So I ask the Minister to provide clarification, so that people know. We do not want the public out there thinking there are 80,000 hazardous substances that are totally uncontrolled, illegal, and unapproved, when that is not the case. The committee members were given quite confusing facts and figures, which has led to some of the confusing statements.

To complete, in terms of Part 1, New Zealand First will be supporting it, but we abhor some of the processes.

I want to clarify that Act, and I am really appreciative of doing so, because, obviously, I was away and I read the speeches and thought: “Oh, gee!” The Toxic Substances Act, which is the Act from which these toxic substances are being transferred to the Hazardous Substances and New Organisms Act, required anyone importing a new toxic substance to notify the Ministry of Health. The theory was that the Ministry of Health would evaluate the notifications to determine which substances notified were hazardous enough to warrant placing on schedules. If a substance was placed on the schedules, it was then, and only then, subject to regulatory control and specified requirements, like all the things that we are talking about now.

At the time the Hazardous Substances and New Organisms Act was enacted, in 1996, there had been approximately 8,000 notifications filed with the Ministry of Health over the previous 16 years since the Toxic Substances Act came into force. Notification, as we understand from industry, was widely disregarded by industry, as no action seemed to result, and it could not see the point of it. Over the following 5 years from 1996, when it could see the writing on the wall, to the commencement date of the Hazardous Substances and New Organisms Act, the tally of notifications rose to a staggering—wait for it—215,000. That is what came out of the woodwork. The chemical industry, which we have been working with on this whole strategy, recognised that this was the only way to gain the status of an existing substance under the proposed legislation—the Hazardous Substances and New Organisms Act, the existing legislation—and therefore remain legally in use following the commencement of that Act. We do not know whether some of the notifications were brought forward because people were saying: “These are the things that we want to use.”, or whether they were in use, but I think it is quite safe to say that there are substantially more than 8,000 toxic substances in use in New Zealand that have never been notified.

The ACT party will also be supporting this legislation, with some trepidation, I might add. There are many aspects of the hazardous substances and new organisms legislation that we do not agree with, but they are more detailed. What we see in this bill is a slight trend towards an attempt to reduce some of the horrendous compliance costs, many of them unnecessary, that are built into the Hazardous Substances and New Organisms Act.

What I was particularly concerned about, however, was to learn from the chairman of the Education and Science Committee about the appalling process he had to endure with the indecent haste and time constraints that this Labour Government, as executive, has put on that committee. This is important legislation, and what I am really flagging is an issue that is becoming too common. Many select committees are now finding that they have an unreasonable time constraint put on them. There is not adequate time for public submission. The select committee process is important, and I put it to this Committee that it is being abused in a very arrogant way by this Government, which is trying to ram through legislation with indecent haste. It is happening far too frequently, and it certainly is of great concern to me to hear the concerns of the chairman of the select committee, Brian Donnelly, with regard to this legislation.

The bill covers a wide range of substances, as has already been mentioned—some 72,000. That is an enormous range of substances and, as has already been pointed out, it includes explosives, corrosives, oxidising agents, reducing agents, caustic agents, and acidic agents—the works. Just about every aspect of industry and business has to use some such substance in its processes. But some of the aspects of the bill that, it seems, are an attempt to minimise some of the costs to business and streamline it are welcome. In particular, the delegation of powers from the Environmental Risk Management Authority to local control, I think, is important. There will be less centralised control. We cannot expect the central body of the Environmental Risk Management Authority to be doing all the work on the ground. The delegation of those powers is a trend in the right direction, as provided for by this bill.

I understand, too, that the authority may vary the default controls to allow the choosing of the most cost-effective option. That is certainly an important improvement, because we should always leave discretion with business and with those on the ground and at the coalface, as it were, to choose the most cost-effective option. They will know what best suits their particular application of the generic legislation. I also note that there is the issue of the non-hazardous compressed gaseous substances. Certainly, there are many substances that in their natural state are not hazardous but if compressed, can become highly hazardous. This bill, as I understand it, attempts to close that loophole of dangerous substances in their gaseous forms escaping the loop of the hazardous substances and new organisms legislation. That is all I would like to comment on at this stage. As I indicated, the ACT party will be supporting this legislation, but we believe that an awful lot more could have been done to streamline it.

I stand to support this Hazardous Substances and New Organisms (Transitional Provisions and Controls) Bill on behalf of the United Future Party. This bill has many features in it, and I think the intention all the way through has been to make it more user-friendly. One or two members have already spoken in this session about some of the confusion in terms of detail, which the Minister has been able to give us some certainty about. We were bandying around all sorts of figures in the select committee, and I am sure people were trying to clarify that to us, but none of us could get it all together at the time. So we are sorry, but now we are clearer, and getting some of the history of it in the detail has helped to make it not so confusing.

I think too, and it has been well pointed out, that some of the time constraints we were under added to that. I felt we were under real pressure, and the chair of the Education and Science Committee has certainly made that point strongly. However, some features in here are encouraging, and I would like to touch on one or two of those—certainly the one dealing with the delegation by authority. I think this is a very good way of trying to get that large number down to zero by June 2006. I believe that is the intention of these transitional provisions. So to delegate authority out to employees of any person specified in section 97 of the principal Act, or any enforcement officer with relevant experience, I believe is a very, very good idea to speed the process of getting these many thousands of notified toxic substances completely under control.

Another feature that I thought was good, and essential to the cost-effectiveness of the whole programme, as well, related to the appeals that exist. I noted when I was going through the bill that it was very good to see a provision in here for appeals at the District Court level. That is another means of speeding up the process, with less heavy costs through other types of court procedures and legal costs. So I am very happy with that. I find it also encouraging that there are in the bill certain exemptions from regulations, and these are, as I understand it, to grant a further speedy action to ensure that these hazardous substances will get through on and by the date and month in the year 2006. So I would just mention those few points as encouraging at this stage, and repeat that United Future supports this bill through the Committee stage.

I want to follow on from some of the concerns about this bill that have been raised by my colleague Paul Hutchison and also by Ken Shirley. Despite what might be said about clarifying some of the numbers, I have to say I am more confused than ever. I listened with great care to what the Minister had to say, because I was interested. I was concerned to know that what is contained in the select committee report is not accurate, and I would like to put some questions to the Minister so we might get some clarification. If we reflect on this bill, we are talking about an Act that was passed in 1996, about an incredibly important area, and that is ensuring that toxic substances used in New Zealand are safe. Yet I am to believe that despite the fact that we are now 7 years down the track, we are only a fraction through the transitional provisions.

I say to the Minister that depending on which numbers we might use, we can come up with some pretty amazing figures for the transition. If I am to believe the Minister’s latest figures, that in fact that are 215,000 of those substances to go through the process, and if I am to believe the select committee chair—and I have no reason to disbelieve him—when he says we are doing 100 a year, I have worked out that the transition will be completed in the year 2804. That is a pretty long transition period for any piece of legislation. I do not expect many of the children in the public gallery to live until the end of this bill’s transitional period—the year 2804. It is a wee way away!

But if I am to believe the figures in the select committee report—that there are 80,000 of these substances, and 10,000 have made it through the process—that means it will be the year 2080 before we get to the end of the transitional period under the Hazardous Substances and New Organisms Act.

💬 Jim Peters: That’s progress!

Well, I am not sure. I have to say that if that is how damn long it is going to take for this legislation to take effect, then I truly think that this Parliament is kidding itself. It is not good enough. I have to say that I think the Minister has somewhat brought this problem on herself. With no disrespect to the very capable members on the Education and Science Committee, I have to ask why it was that the Government referred this bill not to the Local Government and Environment Committee, which has dealt with all the other issues associated with hazardous substances, but to the Education and Science Committee on fast track. I will tell members why. It is because the Government is in a mad hurry.

I say to the Minister that she has now been in this role for 4½ years. Why is it that she cannot have the select committee do the job properly rather than the much-constrained process that she forced on to Brian Donnelly and members of the Education and Science Committee? It is not good enough. It is not fair. The protection of our environment from hazardous substances deserves better than a constrained process where the select committee cannot do its job properly and where the chair of the committee does not even know whether his report is accurate, and it deserves better than not being referred to the committee it should have been referred to—and that is the Local Government and Environment Committee, which is very experienced with legislation of this sort.

But I come back to the principal point. This Committee deserves clarification. How many substances are going to be required to be registered under the hazardous substances and new organisms legislation? Does the Minister know? I think it is a pretty important point. How many hazardous substances do we expect to be registered under the Act? Does the Minister not know? Does the Minister have no idea? Is the figure that is provided in the Education and Science Committee’s report accurate? The Minister is paid a salary. We deserve an answer. The ministerial car and all the other things that go with her role mean that this Parliament is deserving of answers. If the select committee report is inaccurate, then we need to know.

I also have to ask the Minister how many substances have actually been registered. Can the Minister answer that? The Minister does not know? The Minister is refusing to answer the question? Can the officials in the Chamber provide accurate answers to the simple questions? How many hazardous substances are there to register through this process, how many are done, and, based on the current budget and schedule, how long will it take? They are reasonable questions, and the Committee deserves an answer.

I was not going to take a call, because I was not involved in the select committee process, not being a member of the Education and Science Committee, but I become concerned when I listen to the contributions by the chair of the committee, the Hon Brian Donnelly, and by my colleague the Hon Dr Nick Smith. I become even more concerned when the Minister sits there solemnly and does not answer any of the questions raised. As I study the bill and the commentary on the bill it seems to me that in good faith this legislation was advanced as a means of minimising a lot of the significant cost burdens that have been thrust on industry by the original hazardous substances and new organisms legislation. If that be the case, then I am supportive, and, as has been already stated by my colleague Dr Paul Hutchison, the National Party supports the legislation.

But I become concerned when there are so many examples of the Government spinning itself out of control by advancing legislation that it says is going to deliver a more cost-effective regime to industry, and then we find, when we take all the gloss and spin away, that in actual fact this bill does not deliver as we, as members of Parliament, are told it will. So I think the Minister should take a call and take the opportunity of assuring us that this legislation will bring around a much-reduced cost structure to industry.

The other point I want to pick up on is the superb point made by the Hon Brian Donnelly. He talked about the increasing disregard for the process of Parliament by which legislation is introduced in a rush, and sent to a select committee with a very sharp report-back date required so that submissioners do not have the opportunity to sensibly construct a submission. The select committee often then does not have the opportunity to sensibly consider the submission before a report-back deadline is reached and the issue is back before the House.

When we look through some of the legislation sitting on the Order Paper we see that this legislation has been rushed through. It was reported back from the select committee only 2 weeks ago. Yet a number of other pieces of legislation that were reported back over 12 months ago—the Residential Tenancies Amendment Bill is one—still sit on the Order Paper. I see that some of the Labour members agree. It seems strange that there is such pressure to rush this legislation through and abuse the select committee process. Yet there is other legislation well and truly reported back for which people have made submissions under the due process and been given time to make sensible, considered submissions on that, for some reason, sits on the Order Paper.

💬 Hon Ken Shirley: The Conservation (Protection of Trout as a Non-commercial Species) Amendment Bill was reported 3 years ago.

The Hon Ken Shirley identifies another bill that has been sitting on the Order Paper for 3 years, yet we have this rushed process. So I support entirely the comments of the Hon Brian Donnelly because I think too often the Government, in its rush to make sure the legislation does not get examined sufficiently, does not make the opportunity available for people to make submissions and receive a considered and respectable airing at a select committee. It makes the people suspicious that, in actual fact, the objectives and the purpose of this legislation are not quite as the Government has described it. So the Minister can certainly take a call and take an opportunity of satisfying me that my fears are ungrounded. I think it would be admirable if the purposes of the legislation were fulfilled, and the legislation as reported back meant that the cost structures—under which many, many industries are operating and are affected by the original hazardous substances and new organisms legislation —are significantly reduced, and I look forward to the Minister’s contribution in that regard.

My difficulty is that I think I have a reputation for being reasonably conscientious, and for reading papers and looking at them carefully. The questions I really want to satisfy myself on are how many hazardous substances we have in New Zealand, and the status of those substances at the moment. I asked the Minister for some figures to clarify that, but, in fact, she confused the issue even more. She is now talking about the possibility of 215,000 toxic substances being present in New Zealand—

💬 Hon Marian Hobbs: Notifications.

OK. The figure we have is that there are approximately 80,000 existing hazardous substances, presumably captured under the old legislation—that is what I think, because another chart states that they were legally in New Zealand as at 1 July 2001. Then the report states that approximately 8,000 of them were previously regulated. So that leaves 72,000—

💬 Hon Marian Hobbs: Yes.

Regulated, non-regulated, or what? We have it stated that 80,000 substances are legal and 8,000 were regulated. What has happened to the other 72,000? How are they legal? I am then left with a figure of 70,000, and I am told through the Education and Science Committee’s report—and I was there at the committee, and we asked the officials precisely what the number was—that there are 70,000 substances that are not official. That is the precise wording.

I am left with a real confusion about the status and the number of the different hazardous substances in the country, which this particular legislation now has to handle over the next 2 years. It only has 2 years in which to do that. What is the status of the hazardous substances and what are the numbers that we are talking about? At this particular point in time it would appear that if we have only done a few thousand from 2001, then we will not meet the deadline. So I do ask the Minister whether she can clarify that for me. As I say, I think I have an average IQ, and I think my maths is reasonable, but I am getting more and more confused over that particular issue.

💬 Hon Dr Nick Smith: Madam Chair—

I move, That the question be now put.

💬 Hon Dr Nick Smith: I raise a point of order, Madam Chairperson.

The CHAIRPERSON (Ann Hartley): Would the member please be seated.

I raise a point of order, Madam Chairperson. I called a point of order before.

💬 Jill Pettis: No, the member did not.

The CHAIRPERSON (Ann Hartley): I have called the vote—[Interruption] The member will withdraw and apologise for that remark.

I was trying to clarify in my point of order the discussion that occurred between the senior Government whip, who has just moved the closure motion, and the Chair and the Minister for the Environment. When questions were raised quite legitimately by the chair of the Education and Science Committee, the Hon Brian Donnelly, which the Minister refused to respond to, I saw the three members discussing that they wanted closure. I think that is an inappropriate intervention. If you can clarify that for me I will be happy to withdraw and apologise.

The CHAIRPERSON (Ann Hartley): The member does not have the right to ask that question of the Chair. The member will withdraw and apologise.

I withdraw and apologise. I raise a point of order, Madam Chairperson. I am concerned that I and the chair of the select committee have both raised quite legitimate questions about that point. We saw the Minister, who was somewhat uncomfortable about those questions, talking with you and with the senior Government whip, and next minute a closure motion was moved by the senior Government whip and accepted by the Chair. I think the Committee deserves an explanation of that. We need to be satisfied that the Chair of the Committee is behaving in a neutral way and is not being influenced by the Government to stop answers being given to very legitimate questions.

I raise a point of order, Madam Chairperson. I am very happy to share with the Committee what I said. As members will know, this is the last bill that I considered when I was on the Education and Science Committee, and I said very casually to the Minister I had forgotten how short the bill was. That is what I said to her.

The CHAIRPERSON (Ann Hartley): I will not let this go on. This is not a debate about the closure motion; members know quite well that they cannot debate that. I will put the motion.

I raise a point of order, Madam Chairperson. I want to raise with you a matter of procedure. I did not interrupt the vote, because it was not appropriate to do so, but just as you were taking the closure motion my colleague Dr Nick Smith sought a point of order. I was concerned that it took some time before his point of order was recognised. Every member in this Chamber has a right, at any stage, with one or two exceptions as we might be going through a procedural matter, to raise a point of order. It may be that, finally, the Chair will decide that it was not a legitimate point of order, but, of course, that cannot be judged until after the point of order is taken.

I want your assurance that when a member—particularly from this side—raises a point of order it will be recognised immediately and dealt with appropriately in whatever way the Chair decides. It is not appropriate for the point of order to be refused by the Chair initially, because the Chair may think it would do something to prejudge the procedure. I just want an assurance that points of order will be taken and recognised, because it is important that that is a common part of our practice in this Chamber.

The CHAIRPERSON (Ann Hartley): I acknowledge the point that Mr Carter is making.

Part 2, and Schedule