Biosecurity (Status of Specified Ports) Amendment Bill

I move, That the Biosecurity (Status of Specified Ports) Amendment Bill be now read a first time. The key provisions of the bill are, first, that specified ports are treated as having been designated or approved as places of first arrival under the Biosecurity Act 1993 for all kinds of aircraft, that is for airports, and vessels for seaports, from 1 July 1995 for certain specified ports and from 25 May 1998 for certain other specified ports.

Secondly, the biosecurity control areas are confirmed as having been established in these specified ports if biosecurity control area agreements exist. Third, the deemed approval of ports and confirmation of biosecurity control areas will not apply to convictions entered, or sentences imposed, from a certain period of time, until the date on which the port approvals were given, or the bill is passed, whichever is the earlier. Fourth, the deemed approval of ports and confirmation of biosecurity control areas will not apply to any court proceedings commenced before the date on which this bill is introduced.

The bill is needed, because when the Biosecurity Act was enacted in 1993, the ports used as a place of first arrival were approved as a transitional measure. The transitional measure ceased on 1 July 1995. Unfortunately at the time, the Ministry of Agriculture and Forestry failed to approve the ports, and consequently the ports were not approved as a place of first arrival, after 1995. The 1997 amendment Act enabled an approval to impose a limitation on the type of craft that could enter a port. Consequently, the amendment provided transitional approval of certain ports of entry for a period of 6 months. At the end of the 6 months the approvals expired.

During the 6-month transition period the ports were required to be approved under the amendment Act. However, the Ministry of Agriculture and Forestry failed to make the necessary approval, and consequently the ports were not designated a place of entry under the Act. The ministry—apart from apologising to everybody—is now in the process of issuing new approvals for relevant ports in accordance with the Biosecurity Act. However, the ministry’s failure to do this prior to now, exposes the Crown to civil action by those who might seek to challenge the actions of ministry staff operating at ports and airports over the intervening period, even though, of course, this was unintended and without malice of any sort.

The bill is urgently needed to deem retrospectively certain ports to have been approved as places of first arrival. This will effectively eliminate the risk of future civil action being taken against the Crown for those historical oversights. Although clearly undesirable, the bill will effectively validate the ministry’s operation of the respective ports and airports in the intervening period only. The bill will not validate the three invalid convictions entered, or sentences imposed, during the period when the ports were not approved. Convictions will be quashed, and affected persons will receive redress. Fortunately, those convictions are relatively minor. Any civil proceedings commenced before the bill is introduced will not be affected, but thus far, as far as I am aware, there are no such proceedings.

The Government proposes that the bill is not referred to a select committee for consideration, as it is desirable that the legislation be dealt with expeditiously for obvious reasons. If the bill were referred to a committee, there would be a period after introduction, and before enactment, when persons would be aware of the Crown’s exposure and could take civil action. The passing of this bill through all its stages will remove the opportunity for any person to take civil action because ports were not approved—unintentional as it was—as places of first arrival. I gratefully acknowledge the support and cooperation of other parties in the House in assisting with the introduction of the bill.

First of all, Madam Assistant Speaker, can I take this opportunity to wish you and your fellow presiding officers a merry Christmas, because I may not have that chance on the last day of Parliament.

I thank the Minister for Biosecurity for, in his first job as Minister, playing catch-up with his Ministry of Agriculture and Forestry over what clearly has been an oversight. The National Party will be supporting the Minister in his endeavours. I totally agree with the Minister’s comment made at the Biosecurity Summit, when he quoted a former Prime Minister of Australia, Gough Whitlam, who, as Opposition leader, had said: “The new Minister is of a calibre above that of the previous Minister.” When responding to an interjection about what that meant he said: “He is a bigger bore than the previous Minister.” So I congratulate the Minister on acknowledging that right upfront.

I tell the Minister that there are a number of issues that he will need to address very quickly. Not only will he have to fix up this measure and have it passed on 13 December—it is 14 December already, but, in the time-honoured fashion of the House, when in urgency it stays in the day that the urgency started; so the Minister is already a day behind in terms of what he is trying to achieve—but also he will have to do something about the major biosecurity problems we have in this country. Thus far every single piece of rhetoric I have heard from this Minister tends to indicate there is no progress on that, whatsoever.

Clause 4 inserts new section 184A, which basically does what the Minister outlined, and it does need to happen. But given that he has been able, through the process that has brought him to introduce this bill, to see that there are quite a few holes, as it were, in the Ministry of Agriculture and Forestry, will he be doing something to fix up some of the other vacuums, or shortcomings, in the rest of his portfolio mix? When he made a speech to Federated Farmers and told them there was absolutely no logical reason to have a biosecurity strategy in place before an incursion took place—in fact, I think he said it was illegal to have a strategy in place before an incursion took place—did he know then that that is within his power? Clearly, he does not know that. If that is the case, perhaps he should get a briefing from his officials; they will tell him that the law provides that he must, in some cases, have a strategy in place before there is an incursion. That is yet another gap in the law, or in the Minister’s knowledge—I am not sure. As far as I understand the law, there must be a strategy in place before there is an incursion, in a number of areas. I give but one: the potential foot-and-mouth threat that this country is under all the time. There is within the law a power for the Minister to make sure a strategy is in place before there is an incursion. So I am really curious about what the Minister was referring to when he made that comment.

The pest management strategy that his ministry has in place appears to be fairly robust in that area. Unfortunately, it is not robust in a number of other areas. During the process of this bill—and research obviously has gone on therein—the Minister might have a look at what other gaps there may be in the law, and bring those to Parliament, so that the people of New Zealand can be confident that this Minister is on top of his portfolio. There certainly is no evidence of it thus far.

I want to quote to the Minister section 69A of the Act: “A national pest management strategy must specify the following matters: (a) The pest or pests to be managed or eradicated:”. That throws up another question. Given that the Minister, presumably, knew that, and we have had a couple of incursions just recently—namely, sea squirt and didymo—was the Minister aware that under the Act he is required to try, first of all, to eradicate? We can see from the outcome, now that both those incursions appear to be permanent residents in New Zealand, and will be devastating not only to our biodiversity but potentially to our aquafarming economy, that the Minister himself may have slipped up in that regard by not doing what is required under the Biosecurity Act, which he is required to work under. Maybe the Minister has a different view of that; I am sure he does.

So when he says in speeches at biosecurity summits, Federated Farmers conferences, and other such places where he has spoken as the new Minister for Biosecurity, that it would be stupid—I think that is the language he used—to employ funds in the area of a biosecurity strategy before we have an incursion—[Interruption] It might be a good idea if the Minister checked the Act he is supposed to be working under, to find out the reason his warrant has been given to him.

I give the Minister yet another example of failure—by his predecessor—and that was the case of the varroa bee mite. Once again, there was a surveillance process, there was a biosecurity advance strategy, and neither was used. It was a wait and see situation; the Government would not throw money around willy-nilly, so it just waited to see whether that organism could live in New Zealand. Perhaps the Government hoped that a cold snap would freeze it out, or something like that. Maybe the Government had people sit down at the port with a fly swatter to try to catch the organism on the way through. That sort of approach has failed, and the cost to this country is billions of dollars. We have yet to establish what the cost of the didymo outbreak will be, but I suspect that it could be billions of dollars. So I say to the Minister that while we fiddle while the house burns, as it were, and fix up what is obviously a shortcoming within his own department, he might want to go back and look at some of the other major gaps within his department, to see whether there is something he can do about them.

There has been a 93 percent increase in the number of passengers coming into New Zealand—I am just telling the Minister this because I am sure he does not know. There has been a 40 percent increase in the number of cargo movements—containers and suchlike. That is the reason why we are far more at risk today—and all that is good because it shows there is growth in the economy—than we have ever been before. For the Minister to sit there and say we have the best biosecurity in the world is just not good enough, because it does not take into account all that extra traffic and extra risk. The Minister will tell us how many more millions of dollars have been put into biosecurity since 1999, but he will never quote how much extra passenger and cargo traffic there has been. He will not mention that. There has been a 96 percent increase in container movements alone. Did the Minister know that? He did not know that. The last time he was anywhere near a port was when he was at the airport, coming into Wellington. He had no idea that was the case.

So the amount that the Government has put in, percentage-wise, compared to the increase in traffic, is miniscule, and the Minister knows it. He needs to go back and use his now-elevated position as No. 1 in a caucus of one, use that horsepower, to beat up the Minister of Finance and say that the biggest single risk to this country is the threat to our biosecurity. Of course, the Minister will make light of it, and, of course, the Minister of Finance will spit him out like he does all the other ill-prepared Ministers who turn up and do not know their portfolios.

Here is a figure that the Minister will not be aware of: 16,000 tonnes of foreign ballast water are estimated to be discharged into New Zealand waters each year. The question we need to ask is how the sea squirt got here. Well, 16,000 tonnes of foreign ballast water is discharged into New Zealand each year. The Minister should fix it while he has a chance.

The Green Party will be supporting this bill through all its stages. We do not often do that for bills that have not first been referred to a select committee, but we recognise that this bill is solving a problem that happens from time to time in legislation, and it is quite right that Parliament should fix it.

Biosecurity is a critical aspect of the Greens conservation policy and process, and we take it very seriously indeed. In our view, any biosecurity strategy must be based on a precautionary approach and must recognise that many pest incursions are irreversible and should therefore promote the lowest practical risk approach to the way biosecurity is managed. We need only consider the didymo incursion to understand that it is not good enough to take time over these incursions when they occur. Didymo was found in the Lower Waiau and Mararoa rivers in Southland in October of 2004, and although I think that Biosecurity New Zealand did some good work on this issue, it is not good enough to wait until the problem gets bigger before serious and severe measures are put in place. For example, the research on how to kill didymo should have begun immediately after it was found, not a year later, because in September 2005 didymo was found in the Tasman district, in the upper reaches of the Buller River, in the Otago region, in the Hāwea, Upper Clutha, and Von rivers, and in additional rivers in Southland, the Oreti and the Upper Waiau. Of course the whole of the South Island is a controlled area, and it is not good enough that we allowed this to happen.

I do not think, and the Greens do not think, that the extreme dependence of our biosecurity measures on the education of New Zealanders and on individual responsibility will work effectively. It is not the best strategy. But it must be said that if New Zealanders do truly appreciate their environment and do hold it in the esteem that we frequently say we do, then we should all take more responsibility for the impact that our actions have on the environment, and on the biosecurity risks that our behaviour imposes. The Greens believe that from the outset all possible restrictions must be used to prevent the introduction and spread of biosecurity risks. Biosecurity processes must consider the harmful effects of toxins on human and non-target species and ensure that chemicals are used only as a last resort. The National Party suggested that somehow all the rivers in the South Island should suffer some form of chemical blasting with chlorine. That would kill everything, in an effort to get rid of potentially this one little thing. [Interruption] It was an insane suggestion, clearly made by people who have no concept of what it means to be environmentally responsible, and I am so pleased that nobody has taken that suggestion the least bit seriously. Instead, people have recognised it as being ridiculously stupid, as it was.

We would like to see the Biosecurity Act include, as part of its purpose, the need to protect New Zealand from pest diseases and from GE organisms. We would like regional councils to be required to develop pest management strategies that cover both public and private land, and we believe we should encourage the preparation of pest management strategies that are ecosystem based as well as species based. There is no point in trying to attack individual species if we do not take an ecosystem approach, and that in fact is increasingly a part of the policy development process for conservation in general. We would like to see it included more in biosecurity, and, of course, there must be consideration of the cumulative impacts of biodiversity associated with imports.

Importers must have, and take, a greater level of responsibility for the biosecurity risks they pose. We would like to see increased funding for implementing biosecurity risk assessments and invasion response measures, supported through a levy on importers and people arriving at our borders. We believe that importers should be required to pay the full cost of eradication when negligence or non-compliance has been demonstrated by them. We need to enhance our ability to prevent exotic species from entering New Zealand and our ability to respond to any incursions that do occur. We have to continue with public education. We should be looking more seriously at the offshore inspection of containers, at increasing staff training and providing staff with the technology they need to do the job they want to do, and at making sure there is an emergency response fund that is well supported so that it can be effective. We also need to begin permanent pest surveillance programmes in and around all ports. We need risk assessments for exotic organisms, to consider their potential impacts on indigenous species and ecosystems, and on rural and urban environments, in addition to those on primary production and human health.

This is a significant issue for the whole country. If we do not impose severe and costly penalties on importers who, through negligence or non-compliance, put our country at risk, New Zealand will be seen as too soft on these issues, and the cost to our environment, our economy, and our people will be extreme. We have only one little country, and we have to protect it as best we can. We must give equal importance to biosecurity threats to the marine environment as we do to the terrestrial environment. We need much more caution and more stringent measures for marine biosecurity threats. We must take more seriously the risk that pollution, for example, imposes on our marine life. We have an exceptional abundance of marine life and ecosystems in our seas. Research is being undertaken in the Sounds to look at the medicinal properties of marine life that were hitherto unknown to us.

One of the major threats, for example, to the Hector’s and Maui dolphins, after gill-nets, is pollution of their habitats by toxins flowing into the sea from rivers, the dumping of sewage into the sea, and the dumping of wastes from dredging and seabed prospecting and mining. Biosecurity forms one part of the protection measures we can take to ensure that our endangered and critically endangered species are protected and that we do not continue to lose species in this country. If we do not take biosecurity issues extremely seriously and impose severe and mandatory controls and penalties, we risk a huge amount in our country. So, in terms of this bill, we are very pleased that the legislative lacuna will be filled, but it is only a small part of what needs to be done to truly protect our beautiful country.

New Zealand First will support this bill in all its stages. We received a copy of it only an hour or so ago and, as the Minister who opened the debate said in his speech, it comes about because of—to use nautical language—a Ministry of Agriculture and Forestry stuff-up. The ministry got it wrong. There was an oversight, and this bill is now urgently needed because of the possibility of the Crown being exposed to civil action.

I agree with Shane Ardern, who spoke a little while ago, that the biggest single risk to this country’s security is biosecurity. I would like to explain to Shane Ardern—my colleague and, I think, my friend—a little about ships’ ballast, because he seemed to be making a little bit of noise about that. Shipowners are very conscious of the problems that a ship’s ballast brings with it. Currently, an overseas ship that is coming to New Zealand is meant to exchange ballast in mid-ocean.

💬 Shane Ardern: They’re meant to.

Ships are meant to, and they make certain entries in their log books to that effect. Various shipping lines in various parts of the world are experimenting with heating ships’ ballast from the engines—

💬 Shane Ardern: There’s chemical treatment, as well.

I do not think that chemical treatment has met with as much success as heating, but shipowners are reluctant to put in major, sophisticated methods to address the issue until they know that it will actually address it. I think I am correct in saying that at the moment the most accepted measure is exchanging the ballast mid-ocean.

💬 Shane Ardern: But do they do it in rough seas?

It cannot be done in rough seas, if we are talking about large quantities, and it cannot be done all at once; it has to be done progressively, because it affects ships’ stability, stresses, and all those sorts of things. So whether ships exchange their ballast as fully as we would like them to is a debatable point. But I found that most of the people I dealt with in the area of shipping were pretty darn honest.

One area that concerns me, when I look at schedule 9, is that only five airports are mentioned. I would have thought that that provision could have been upgraded by now. Hamilton has international airlines coming into its airport, as does Queenstown, I think. As far as I am aware, Greymouth is a port. Maybe in the Committee stage the Minister will tell us why Hamilton, Queenstown, and perhaps some other airports have been excluded, because it is distinctly possible—

💬 Hon Jim Anderton: There are two schedules.

💬 Shane Ardern: On the back page.

Ah, there they are: Hamilton, Dunedin, Invercargill, Palmerston North, Queenstown, and Tauranga. But where is Greymouth? I thank the member for alerting me to that. I had not read the bill as far as that. Greymouth is not recorded as a port.

💬 Shane Ardern: Tauranga is named with other ports. That’s not even in the amendment.

Oh, Tauranga is not in the main port area. This bill is urgently required. The Minister made that quite clear. I think it is incumbent upon this House to pass it with minimum delay. New Zealand First is quite keen to get on with the job, and we will support the bill through all its stages.

I rise on behalf of the Māori Party to address this bill in the context of its first reading. In the interests of bringing new ideas to this debate, our priority today is to focus particularly on the Biosecurity (Gypsy Moth Levy) Order. The Biosecurity (Gypsy Moth Levy) Order 2004 was made in the context of the Biosecurity Act 1993. The order provides for the levy to be imposed on all shipping containers and used vehicles imported into New Zealand, and is the liability, primarily, of importers, although an importer or a shipping agent must pay the levy. The levy is calculated on the basis of dividing the estimated annual cost of a surveillance programme by the estimated number of shipping containers and used vehicles to be imported annually into New Zealand, and is to be spent on the surveillance programme for the gypsy moth.

Although we are pleased to see the introduction of the levy, it is the bigger issue around the eradication of the gypsy moth that still remains unresolved. That is an area of particular interest to me, given its implications for the people of Tāmaki-makau-rau, and, in particular, west Auckland. Just last month it was announced that a report into the health effects of the aerial insecticide spraying in west Auckland found that child asthma rates rose during that spray programme. The report from the Institute of Environmental Science and Research pointed to a plausible link to the spray programme. The report found that, for boys aged up to 4 years, hospital discharge rates for asthma conditions doubled over that period, 2002 to mid-2004, in the exposed population. One parent described his daughter as being hospitalised 28 times in a year with serious asthma. That is a hospital episode every fortnight for a 5-year-old girl.

Our particular concern with the linking of the moth spray to the incidence of respiratory diseases is the greater Māori asthma morbidity. The Māori asthma review concluded that asthma was more severe in Māori and that hospitalisation and mortality rates for Māori exceeded those of non-Māori. The review states that Māori are no more likely than non-Māori to develop asthma but that once they get it, it is more severe and tends to last longer.

The economic burden of asthma to New Zealand has been conservatively estimated as $800 million per year. For the sake of our society, our economy, and our community well-being, we must be vigilant in stamping out any factors that may serve to threaten our future progress as a nation. Eradication of the gypsy moth may not be as critical as the insecticide introduced to kill it. It must always be considered that in doing whatever we do to get rid of a particular problem, we must not increase the likelihood of other illnesses. In a way, it is like using a wet towel to hit a moth on a light bulb. Sure, we might get rid of the moth, but in the process we might end up in the dark.

ACT will support the Biosecurity (Status of Specified Ports) Amendment Bill at its first reading, as it is obvious that urgent attention is needed for the problems that it seems have only just come to light. I think that that serves as a warning to us, and we should take it very seriously, as my colleague in the National Party Shane Ardern pointed out. The present Minister for Biosecurity says that we have the best biosecurity in the world, as did the previous Minister for Biosecurity, but the very fact that we are here in the House today debating this issue, under urgency, perhaps suggests otherwise.

This legislation is an amendment to the Biosecurity Act 1993, to correct historical oversights. As the Minister pointed out, those consequences were unintended, but we must take unintended consequences very seriously. One of the objections we often have to urgency is that bills go through all their stages in the House. They are not open to public scrutiny through the select committee process, which is where the public are able to make submissions, and therefore things are often missed out.

As others have pointed out, the bill is necessary because of an administrative failure by the Ministry of Agriculture and Forestry. The ministry failed to approve ports of first arrival under the Act before transitional approvals expired. Some of the briefing papers we have had suggest that the issue really only came to light at the beginning of November. But the failures by the Ministry of Agriculture and Forestry occurred in 1995 and 1998, so those historical failures, unintentional though they were, in fact go back some way.

I come back to the reason for the legislation. To fix things we now need to designate ports as approved places of first arrival but, more important, legislation is also needed, retrospectively, to deem courts to be approved. ACT has frequently spoken out, particularly during periods of urgency, about retrospective legislation being put forward in this House. Probably the most famous piece of retrospective legislation was the legislation to save Harry Duynhoven’s bacon. We do object vocally, loudly, and often, to the fact that retrospective legislation comes before this House during urgency when proper scrutiny is not able to be given to it. We might find ourselves less likely to have to go back and amend legislation if that proper scrutiny did in fact occur.

It is very interesting at this time to look at the Crown Law opinion. The question should really be asked: does Crown Law think we have the best biosecurity in the world? I would suggest from the paper it put forward making comments on this issue that, no, it does not. The issues arising pending the introduction or passage of this bill have been put forward by Crown Law, which says that without this legislation there is no general power to inspect unaccompanied goods outside a transitional facility, and that it will be unclear what questions a person must answer after making the initial declaration about the presence of specified goods. Crown Law goes on to say that it will be unclear how long a person must remain at the port while inquiries are being undertaken and, lastly, that inspectors do not have the power to use reasonable force to require a person to be detained, so the power to search people will often be ineffective. Now, does that constitute the best biosecurity in the world? I do not think so, and neither does Crown Law.

A little further down in the same document, however, Crown Law comments that the bill as presently drafted would retrospectively immunise inspectors and the Crown from civil liability in relation to trespass, goods, false imprisonment, etc. So it is important that we have this legislation, but the question must be asked, particularly of the ministry: how did this situation arise in the first place? Crown Law says that the sooner the bill is introduced, the better the chance that there will not be any successful claims of that kind. I guess that in the greater scheme of things, that is correct, but with such glaring holes in the legislation perhaps concern will not be unfounded.

The retrospective aspect of the bill does not resolve issues relating to the constitutional principle that Governments should operate under law, and Dr Cullen should be very worried about that, if he is worried about good law-making. Good laws are enforceable and routinely enforced—I suspect Dr Cullen would probably agree with that statement—and they should be. Perhaps what we need to think about very carefully, in light of the fact that this legislation is necessary at all, is that all laws should regularly be reviewed to see what loopholes exist and, in fact, whether they are necessary. We have some very old and outdated laws in this country, and it would be a pertinent time to think about whether many of those should be reviewed at regular intervals. So constitutional principles should not be ignored during this debate. I think we have talked a lot about various biosecurity issues, but the broader principles should not be ignored either during the debate.

Crown Law noted that it is also undesirable for international airlines and passengers daily to be committing technical breaches of the Act. I just reinforce my position that law should be enforceable and regularly enforced.

Although there are many problems there, and ACT agrees that they must be attended to very swiftly, there are warnings around the whole issue of why it took so long for the matter to be picked up in the first place, and the issue of why the previous Minister and this Minister continue to maintain that we have the best biosecurity in the world when, in fact, our biosecurity measures have such glaring holes in them. ACT will support this bill, but we would like some consideration, particularly during the Committee stage, to discuss the issues further.

Bill read a first time.

Second Reading