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

A number of assertions were made in the debate on Part 1, and I think some of them actually touched on Part 2. There was an assertion—and I shall clarify the statistics—that it will take light years to get through the process, because so many substances are outside the legislation. Extravagant claims were made about that.

This wondrous piece of legislation was written in 1996. The purpose of the bill is to speed up the process. It allows the authority to issue a notice of transfer by notice in the Gazette. It removes the requirement to transfer substances through regulations. It has always taken ages for that to go through the required Cabinet committees and be written in the Parliamentary Counsel Office. That has been part of the problem in the past, as the transfers have been worked through, and it has slowed down the process through to the present time.

Members also talked about the authority having the ability to assign practical cost-effective controls to hazardous substances, rather than having to vary the default controls individually and do that by regulation. It had become ludicrous, as people got into the actual business of transferring. April is the time line we are working to, if this legislation is passed. We had a timetable to push this through. I thank the chair of the Education and Science Committee in that respect. There was a need for speediness. It was costing businesses in this country money. In April we hope that dangerous goods will be transferred; and in July, pesticides—the scheduled toxic substances; and in post-July we will try to deal with notified toxic substances.

I want to clarify one matter. The figure mentioned of 70,000 is correct. The 215,000 figure is to do with notifications under the old toxic substances legislation. That figure becomes 70,000 notified toxic substances, once we remove multiple notifications and substances that are not hazardous. The interesting thing is that that figure leapt from 8,000 to 215,000, once people started raising their hands, saying: “I think I’m using, or about to use, a toxic substance.” They had to go through that whole process—if I am correct—of finding out what was multiple, and what was toxic or not toxic, to reduce that to 70,000. I can assure people that we will not be going through a process that will take another 80 years. With the help of committee members I think we have a process that will keep this thing on time and online.

It is interesting to hear the Minister now talk about 70,000 substances. That is a new figure plucked out of the air. The advice to the Education and Science Committee was that there were 80,000 substances, of which 8,000 did not require the process, so that left 72,000. At some stage, I hope the Minister will take a call and be accurate about that issue. It is important, because as I understand it, we have been told that there is in the order of about 100 new substances per year that will in future have to be transferred. Once the backlog has been achieved, that figure in itself is quite manageable. However, I would like the Minister to take a call and assure us all that it is only 100 per year. After all, there was confusion about the 215,000 figure, then the Minister said that it was 70,000—when we know it is 72,000. So we hope she will be able to guide us accurately, because that is so important.

Part 2 is the substance of the bill. Indeed, it deals with the issue of delegation of powers by the Environmental Risk Management Authority. Undoubtedly, there has to be a considerable amount of flexibility. Clause 4 gives the authority the power to decide any application for any permission or licence under Part VI, or the revocation of any permission or licence under that part, to any employee of the Ministry of Agriculture and Forestry, any medical officer of health, or any enforcement officer with relevant experience. If there is no employee or enforcement officer with relevant experience, it can be any other person with the relevant experience, whether or not that person is a member of the authority.

My only concern is that, clearly, there needs to be a degree of conviction that that individual will have bona fide qualifications to be able to do the task in hand. I absolutely accept that under this situation it is right and proper to delegate to various parts of the country and to delegate the wide variety of hazardous substances that are available to people with the appropriate expertise. However, it is hugely important to be able to assure the Parliament that the delegated person does, indeed, carry a qualification that we can have confidence in.

Clause 5 inserts new section 77A, “Authority’s power to impose controls and vary specified controls”. When one first reads that, one becomes worried. Subsection (1) states: “The Authority may, at the time it approves a substance for any purpose under this Act, impose as controls under this section any obligations and restrictions that the Authority thinks fit.” On first looking at that new provision it seems to be extremely wide. However, new subsection (4) states: “Before imposing a control under this section, the Authority must be satisfied that, against any other specified controls that apply to the substance—(a) the proposed control is more effective in terms of its effect on the management, use, and risks of the substance; or (b) the proposed control is more cost-effective in terms of its effect on the management, use, and risks of the substance, or (c) the proposed control is more likely to achieve its purpose.” Undoubtedly, these provisions must give a range of qualities that are hugely important and go to the nub of why we are supporting the bill. Hopefully, there will be effectiveness, efficiency, and cost-efficiency associated with the transfer process.

I note that the officials brought up a variety of issues, and I am quite taken with the one about the level of control for Billy Peach flea powder.

The CHAIRPERSON (Ann Hartley): Before I call the next speaker, I should have announced that Part 2, which includes clauses 4 to 11, also includes the schedule.

I guess that the confusion over the numbers proves the point about the need for select committees to have an appropriate amount of time to go through the issues carefully. I make that point because at this particular stage, as I say, I am still not too certain about the numbers; I think we will just agree that lots and lots of substances have to be processed.

Given that lots and lots of substances have to be transferred from the various different Acts into the Hazardous Substances and New Organisms Act, it is equally clear that the current transfer provisions are inefficient, and are causing increased costs to Government and to business. It is for that reason that New Zealand First is supporting this legislation. We believe that something has to be done. Back in 1996, what was drawn up on paper looked good, but when it was put into practice and tested it did not show up very well. The regulation process was obviously just too slow. So New Zealand First will be supporting this legislation on that particular basis.

However, questions have been raised about the regulatory framework in which this whole hazardous substances and new organisms process is operating, and some very strong positions were taken on that. In fact, I think it was agreed that significant work has to be done on those regulations. I ask the Minister for the Environment whether she can assure the Committee that the work that needs to be done is being done. Some people have suggested that we do not need this legislation, but New Zealand First is not convinced; we believe that the legislation is needed, but that significant work also needs to be done on the regulations. I ask the Minister to take a call to confirm for us that that work on the regulations, which underpin all of this, is actually being done. For example, the tank wagon and compressed gas regulations are supposed to be in force by March 2004. If this legislation is to do what it is meant to do, those deadlines have to be met. I ask the Minister to guarantee that those deadlines are being met.

I would like to point out some of the impracticalities in the Act as it stands. One is that the controls change on the day a transfer takes place. On one day a business or an entity is acting under one regime and on the next day it is operating under another regime. It is pretty obvious from the field in which I and the Minister have more experience—education—that when we start doing that sort of thing we turn things into a nonsense. So this legislation in fact provides a means by which there can be a much more sensible transfer from one particular regime to the next regime.

The next point I would like to make relates to something that, once again, came out of the select committee process—that is, the issue over compressed gases. The committee became aware that a gas in itself is not a dangerous or hazardous substance. Oxygen in its natural form is not exactly hazardous; otherwise, we would all be dead. But once a gas is compressed, regardless of its natural form it becomes hazardous per se. The bill, in the way it was drawn up, did not accommodate that reality, but as it has progressed through it has accommodated it.

Also, some other issues were raised that this bill does not cover, but on which further work needs to be done, and I think they need to be mentioned. One example is whether a company that becomes bankrupt can just say that it is getting rid of all its hazardous substances, and that it is no longer responsible for them. Certainly, as a result of this legislation, further work will be done on that particular issue.

New Zealand First believes that this legislation is necessary. We would have hoped it would be processed in a far better fashion, but we believe that what is suggested in it is a far more sensible approach to the whole issue. The bill gives greater flexibility, and gives the Environmental Risk Management Authority greater powers of delegation to local decision-making. Therefore, New Zealand First will support it. However, we hope the Minister will answer some of those pressing questions on the development and the fixing up of the regulations as they stand.

I want to make a number of points about Part 2 and the provisions that provide for the transfer and transition of hazardous substances into the new regime. I thank the Minister in the chair, the Hon Marian Hobbs, for some clarification of the numbers, and I seek some further assurances.

I understand that 215,000 notifications have been made, and that many of those substances are either non-toxic and do not need to go through the process, or that some doubling up has occurred, as compared with the new provisions, so that we are dealing with about 70,000 substances. I am not going to get too upset as to whether there are 70,000 or 72,000, but I am still concerned that about 8,000 to 10,000, I understand, have got through the system to date. I also note, as I understand the legislation, that the transitional provision needs to be completed by June 2006, which is 2 years away. It seems to me to be very ambitious, even with the transfer provisions, that we will be able to get roughly 35,000 substances per year through the hoops in time for June 2006. I would like some indication from the Minister as to whether she is confident that the ministry and, most important, the Environmental Risk Management Authority, will be able to reach that timetable. Some clarification from the Minister on that point would be very helpful.

The second point I want to raise is that as it seems so many substances are used in New Zealand, the sooner we move to greater international recognition of these, the better. I note, for instance, that the globally harmonised system of classification and labelling of chemicals is a huge step forward in reducing some of the bureaucracy of this. I want some reassurance from the Minister that we are moving at the front end of the pack internationally in the application of globally harmonised systems. As New Zealand is a little country of 4 million people and has a strong agricultural base that uses a huge diversity of chemicals and substances, it would make good sense for us to maximise the use of globally harmonised systems to minimise compliance costs, and, in my view, also to maximise safety. That is the second point I would like the Minister to respond to.

The third issue relates to some of the regulations that are required to make this part of the bill work. I note, for instance, that the ministry and the Environmental Risk Management Authority had promised that the new safety regulations for tank wagons and compressed gases would be in force by March 2004. It is March now. Has the ministry met that timetable? I can see the Minister nodding.

💬 Hon Marian Hobbs: Yes.

Is that the case for both tank wagons and compressed gases?

💬 Hon Marian Hobbs: The tank wagons part. I have to check the other one.

Could she provide me with some clarification as to whether the ministry has reached its timetable for March 2004?

💬 Hon Marian Hobbs: Both have been done.

That is to the credit of the ministry, and I acknowledge that.

Finally, I come to the bigger issue, which is whether the thresholds being set around toxicity are really at the right level. When this legislation was put together back in the 1990s, we were trying to sort out what was and what was not toxic. It seems somewhat extraordinary to me that the net has been thrown so widely that we are picking up 80,000 substances. I have talked with my own constituent companies in Nelson, and they have told me some of the things that have been defined as toxic substances. I remember that a particular type of tape used for wrapping fruit products had been deemed a toxic substance and would need to go through the system. It seems that we have thrown the net too wide and that we are picking up too much, when if we focused just on those things that are genuinely toxic and present some risk to the environment or to public health, we would be doing a more thorough and better job.

I ask the Minister to comment, in respect of Part 2 and the schedules, on whether we will get some greater clarification around that and not pick up so many substances. We could then perhaps get a regime that does focus on those substances that really are toxic—substances that we do need to take care with and have a pretty rigorous regularity regime around—and not include a whole lot of materials and substances that are, in practice, pretty harmless. I would appreciate the Minister’s clarification on those points.

United Future believes that this legislation is needed and that it is overdue. That is why we strongly support this legislation. I shall refer to one or two of the things that have been mentioned.

I noted that when the Education and Science Committee was asking questions of the officials, a comment was made that this bill would certainly not be the last amendment to the hazardous substances and new organisms regulations. That gives me some comfort—not necessarily full comfort—in respect of the questions that have been asked around the Chamber. It tells me that as we move along there will be little wires we trip over and things that need to be tidied up. My colleagues asked, for instance, whether sufficient regulations were in place to cover what we now know. I am sure there are not. That is my question. I think that, as one of the officials admitted, there will be further amending legislation coming through, to tidy up as we go along. That encourages me, as I said in my earlier speech.

I am comforted by the fact that there are in this bill, in any case, sufficient hand-holds to speed up the process and to ensure that the things we do know, at least, are done and are properly classified. The gazetting arrangements that this bill allows for certainly go in that direction—ensuring that the licences are set up, and the permissions are made. At the end of the day, I think all of this comes down to labelling so that everybody has clarity about a whole range of substances. Even if they have a common base chemical in them, they will have one range. Fly spray, as I seem to recall, was one of the illustrations used. There will not be a regulation for every fly spray—

💬 Hon Brian Donnelly: One has to get a licence to use it.

I agree; we need some directions on how to use it. There needs to be a regulation stating: “Put finger on top and squirt.”, “Push here and not down here.”, or something like that.

Those labelling issues tie up to Dr Smith’s question. He raised the matter of international standards. As we all know, New Zealand is part of a global village, and as we go around the world we are starting to realise that there are international symbols for virtually everything, from driving on roads to whatever. I want to be assured that, for hazardous substances, there is an international standard that we are conforming to, or, at least, that we are setting the pattern for everybody else to follow us. Would that not be remarkable in itself?

I take on board what this bill is trying to do. I endorse it, and the sooner we get under way with all the detail the sooner, I am sure, the officials and others will be able to tell us how many of these numbers we will have to legislate for yet again, or make amendments for, to tidy up what is left over. As I said at the beginning, United Future endorses this bill and would love to see it in place so that we can get the actions that are required.

As I said before, Part 2 is certainly the substance of this bill. As we have noted, the range of substances is absolutely huge. It varies enormously from cleaners, to flea powder, to explosives, to pesticides, and hence the need for the tremendous flexibility that the bill contains. I was quite fascinated by some of the colourful substances that were brought to our attention by the Education and Science Committee. Unfortunately, I was not there to receive the information, but as I read it one that caught my imagination related to section 77A, “Authority’s power to impose controls and vary specified controls”, in clause 5—that is, the level of control for Billy Peach flea powder. I guess that is the sort of thing all of us who have had a dog or anything to do with a dog—

💬 Hon Dr Nick Smith: I don’t have fleas.

My colleague assures me that it is not he who has fleas, but I am really thinking more of our canine friends. The point made here is that—

💬 Hon Dr Nick Smith: Don’t talk about the Government like that.

I would not talk about the Government like that for a moment! The point made here was that the authority was proposing to delete all approved-handler controls for flea powders, but it requires that the bill be passed in order for it to make that deletion. The really important thing is that, indeed, it is right and proper that the people who deal with bulk flea-powder purchase and distribution be official handlers, but it would be quite ludicrous if every flea-powder user throughout the country also had to be an official handler, and, indeed, that is one of the things that the bill does away with.

The question of transfer is absolutely relevant in terms of enabling the authority to transfer substances from the transitional regime to the Hazardous Substances and New Organisms Act regime. I take up the point raised by my colleague Dr Nick Smith. Section 160A(5), in clause 10, states: “Before issuing a notice of transfer under this section the Authority must—(a) consider the best international practices and standards for the safe management of hazardous substances;”. That is absolutely relevant in this highly interconnected world where hazardous substances are being moved from country to country. New Zealand is expected to take on at least 100 per year, although I can easily see that number varying from year to year—sometimes it might be much more and sometimes it might be less. It is hugely important to have best international practice and standards.

The other thing that is required is that the authority must “do everything reasonably practicable on its part to advise all persons, who in its opinion may be affected by the notice of transfer”. That is always a difficult task for an authority, because it is left with discretion. I think that is right and proper. It is part of the flexibility. Hopefully, the Minister will make sure that there is a clear intention to monitor it to ensure that it does indeed work. This is the sort of thing where individuals may be left out of the loop inappropriately.

The last thing I want to mention is in section 160B, “Controls may be imposed for purposes of notice of transfer”, in clause 10. Subsection (4) states: “Section 77A(4) does not apply for the purposes of subsection (1) if—(a) the control being varied on transfer relates to a previous management practice; or (b) the control being deleted on transfer existed under Parts XI to XVI …”. With regard to that, I noted that the Ministry of Health pointed out that this section enables the authority to delete default controls where no such control applied. The example given was fly sprays.

I move, That the question be now put.