Biosecurity Law Reform Bill

Tēnā koe, Mr Chairperson. I am pleased to continue my contribution at this Committee stage on Part 2 of the Biosecurity Law Reform Bill. Just to recap: Part 2 deals with amendments relating to ballast water, in particular with managing the risk of marine pest organisms being introduced to New Zealand in ships’ ballast water. The discharge of ballast water is one of the main ways marine pests can be introduced to New Zealand. Each year almost 3 million metric tonnes of ballast water sourced from outside our exclusive economic zone are discharged into New Zealand ports. If unmanaged, this water is more likely to contain eggs and larvae of harmful marine organisms, which may be able to be established here. So it is vitally important that we beef up our defences in the marine area.

Labour supports the provisions in Part 2 of this bill, in particular the alignment with the International Convention for the Control and Management of Ships’ Ballast Water and Sediments. The definitions in the bill align with that international convention. That brings our line of defence in line with best international practice and international control regimes. We also commend the provisions relating to the imposition of a ballast water management levy that can be imposed by Order in Council, because that will help fund the administration, inspection, and enforcement of our biosecurity workers controlling and keeping an eye on ballast water discharge. Likewise, we support the offence provisions. It is important that we do actually create very strong deterrents to ships’ owners and masters in terms of discharge, so that if they do discharge, there will be stiff penalties. We support those offence provisions. They are very strong. We also commend the wide powers that the director-general will have to investigate cases where there has been a discharge of ballast water.

As I have mentioned, we want to protect our pā; we want to make sure that our biosecurity laws do protect our industries and our livelihoods. If we look at the marine environment, we mention names like Undaria and didymo. We know what harm they have caused to our waterways and potentially to our marine industries. Just in terms of Māori, we are significant stakeholders in our fisheries industries and our marine-farm aquaculture industries, so any introductions of unwanted, harmful, and invasive organisms that could potentially impact on the property rights and the industries could have a huge economic impact on those industries and on our country. So it is vitally important that we do protect the pā, as I said, and that we do manage the risk of these marine pest organisms.

We commend the measures that are contained in this Part 2 that relate to the discharge of ballast water. Thank you.

It is a pleasure to take a call on Part 2 of the Biosecurity Law Reform Bill. I have got a couple of questions for the Minister in the chair, the Minister for Primary Industries, in relation to the way in which Part 2 around ballast water relates to New Zealand’s activity in the exclusive economic zone and, in particular, in terms of—

💬 Shane Ardern: There’s a big area of that around Wellington.

Well, it is. Mr Ardern is right to say that it is a big area. That is a good, clear way of describing it, Mr Ardern: big. That is correct. The exclusive economic zone is a very, very large area, and it is currently the subject of a piece of legislation that is before the House, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill.

My question for the Minister is around the relationship of this Biosecurity Law Reform Bill to that other piece of legislation, the exclusive economic zone bill, because there are a number of areas, reading through the bill—particularly new Part 19A in clause 76, which has been included here—that I think have some issues sitting alongside that exclusive economic zone bill. It actually starts with the title of new Part 19A, “Protection of marine environment from ballast water”. One of the issues with the exclusive economic zone bill is the absence of language around protection and preservation of the marine environment in that bill.

In fact the Minister for the Environment, Amy Adams, in the second reading debate, spent a significant amount of time telling the House that that kind of language, which comes from the UN Convention on the Law of the Sea, was not going to be necessary in any legislation around the exclusive economic zone bill. So I am somewhat confused to find here in this new Part 19A a whole new provision entitled “Protection of marine environment from ballast water”. I am confused, because that language is now not going to appear in the exclusive economic zone legislation, and that specific area is mentioned as part of new section 246B(2), which tells us that “Subsection (1) applies to … (i) the territorial sea of New Zealand; or (ii) the internal waters of New Zealand; or (iii) the exclusive economic zone of New Zealand;”.

New Zealand’s ability to make law in the exclusive economic zone actually arises from the UN Convention on the Law of the Sea. The fact that we are signatories too, and have ratified that convention, is the very thing that allows us to make law on that. What we on this side of the House are looking for here is consistency in the way that the law treats the exclusive economic zone. There are a number of pieces of legislation that will affect New Zealand or any economic activity in our exclusive economic zone. One of them is this piece of law, another is the exclusive economic zone bill itself, and, thirdly, there are other pieces of legislation like the Crown Minerals Act, for instance. So I think the Minister in the chair could easily take a call here and let us know what work he has done, or perhaps even the Minister responsible for the exclusive economic zone bill, Amy Adams, could take a call and let us know what work has been done to make these two pieces of legislation consistent.

As we go down the further measures here in clause 76 to new section 246C around offences, I notice in there a set of fines that have been listed for the discharge of ballast water. In this case it could be in the exclusive economic zone. These fines are quite different from the set of fines that are now in the exclusive economic zone bill. In fact, on this side of the House we have concerns about whether or not the fines regime and the penalties regime within the exclusive economic zone bill are sufficient, and whether it is what we need for the protection and preservation of our marine environment. Again, there is a question of consistency here between the exclusive economic zone bill and this bill, in terms of the penalties for offences as listed in new section 246C. So the Minister might like to take a call and advise whether or not we are going to have to come back again to the House to reform the biosecurity legislation one more time, because of the exclusive economic zone bill, which is currently before the House.

I hope that the Government has taken some time to look at it. I am sure Mr Ardern has been studying the exclusive economic zone bill clause by clause, just before bed. When he has got the cocoa, he gets out the exclusive economic zone bill and he says: “Is this consistent with the Biosecurity Law Reform Bill?”.

💬 Shane Ardern: I can see the member has.

Absolutely. That is how good my life is, Mr Ardern. That is what we do on this side of the House. We look through the legislation and we ask ourselves whether the Government is being consistent here. When I look at the offence provisions that are in new section 246C, I think that if they sit alongside the penalties regime in the exclusive economic zone bill, we do have some inconsistency.

The other point that I wanted to make was around the question of the director’s powers to investigate a discharge or the escape of ballast water. I note that obviously we have brand new sections here, and I was not on the Primary Production Committee—something I regret, Mr Ardern; the fact that I was not there to go through these matters in depth. But these are quite extensive powers that are being given to the Director-General of the Ministry for Primary Industries. These powers, which are now listed out in new section 246E, are quite extensive, and I would hope that the Minister could inform us as to whether or not these powers are contained in any other part of the director’s responsibilities. It seems to me that obviously it is an important step to take—to have somebody responsible for protecting the marine environment from the discharge of ballast water—and on this side of the House we obviously support the intent of that. But extending the director’s powers in this way is something that we always need to watch, in terms of the power of senior public servants, if they are given power to effectively put people in a position where they are charged with offences that have fines of up $200,000.

They are the two points that I was keen to make, and keen to seek the Minister’s feedback on.

It is very appropriate to have a biosecurity bill, the Biosecurity Law Reform Bill , back in the House this week. The Minister in the chair, the Minister for Primary Industries , after his outrageous accusations against the horticultural industry last week, will, I am sure, get up to take a call and justify what was an outrageous rant at a group of people who commit billions of dollars in investment—their heart, their soul, their energy—to growing products that we sell offshore. And he gets up at a conference, out of his limo, and has a go at them because they feel threatened by biosecurity!

They are not threatened by Part 2 of the bill here, unless, of course, on their odd day off they go out fishing—which they do, I have to say. This part relates to ballast water, and all I can say is that it is about time. I think in our support of the bill we have to acknowledge that maybe we could have pushed this along. However, this bill itself was generated by Labour in Government; we saw the need for this, for greater alignment of the sectors.

In the area of ballast water, my colleague Rino Tirikatene was very modest and kind to the Government. In fact, the risk is not 3 million cubic tonnes of water; it is 6 million cubic tonnes—metric tonnes, I should say, sorry—of water that comes into this country every year. There are 2,500 visits by ships coming into the country, and they exchange water under a protocol; there has been a general agreement. This bill will move to regulate ships and bring us under the international protocols that attempt to keep marine pests, diseases, and organisms out of New Zealand waters.

We are very proud of our marine environment. We say that we are clean and green, we have beautiful mussels, we have whales in our water, and we have the Māui’s dolphin, an endangered species—all in pristine marine environments. Well, the truth is that we have actually had 148 exotic marine pests come into this country. My guess is that it probably started when Abel Tasman came to this country. Captain Cook probably helped as well. Since that time we have been bringing unwanted pests and organisms into the marine environment of this country. There are a number now that we do not want to bring in, I have to say, and the focus on ballast water is quite appropriate. I hope the Minister has got the same focus on terrestrial pests and diseases. He seems to have ignored some of the risk that has been explained to him, time and time again.

I went to the Ministry Agriculture and Forestry website—or the new superministry website; I am not sure whether they are keeping this up to date—and it clearly outlines the risks to our country from some of the pests. I should name the six of them that it says are the most significant: the Mediterranean fanworm, the European shore crab or green crab , the northern Pacific seastar, the Chinese mitten crab, the Caulerpa, and the Asian clam. I am not familiar with these things other than to guess that they would have a severe impact on our native marine wildlife. We had one bizarre situation where the Pacific oyster—which actually came in on boats, established itself in New Zealand waters, and has been turned into what was a profitable aquaculture industry—unfortunately, has now almost been destroyed, certainly in Northland, by an algal bloom, and perhaps by an unknown pest that could maybe have been brought in through ballast water. So it is appropriate that we move to legislate for stricter controls in this area.

For another example of the things that we are trying to do, perhaps, think of the Rena. Think of what happened out on the reef there. Although the country was focused on oil, on the fuel from the boat, and on our attempt—successful, for the most part—to get all that oil off the boat, there was, of course, ballast water in the hull and in the boat that no doubt escaped from that vessel.

The legislation has penalties in place. It has defence against charges, should some contamination or pollution occur, and one of those defences, of course, is if ballast water has escaped as a consequence of damage to a ship—a reasonable position. But I think it does beg the question of what we can do to minimise the chances of boats running aground. If nothing else comes from that disastrous situation, it is that we should have a better, more highly regulated coastal shipping environment. I was in the House here in 1994—

💬 Hon Annette King: We should have coastal shipping.

We should have coastal shipping.

💬 Hon Annette King: Yes. It was scrapped by the Tories.

Because the National Government, the Tory Government, as my colleague said—

💬 Shane Ardern: What’s wrong with the Interislander?

💬 Hon Annette King: Took $51 million out of it.

That is right. It absolutely decimated coastal shipping here. We were debating that bill. That member, Shane Ardern, would not know. He was probably on the farm then. He should be still. We were debating that bill until 4 o’clock in the morning, if I remember rightly, in this very Chamber.

💬 Hon Annette King: That was the Plimsoll line.

That is right. That was on the Plimsoll line. All I can say, in summary, is that the Labour Opposition in the 1990s fought tooth and nail to stop the National Government deregulating coastal shipping, the consequence of which was the Rena running aground, the huge cost to the Bay of Plenty, and the huge cost to the Government. There will be people smiling at that, because that is the same Government that deregulated the building industry, and, of course, the mining industry, and—I will bring it back to the bill. Talking about ballast water and the regulation that we are bringing into place here, the wisdom of good regulation is profound. The stupidity of deregulation, in too many cases, is also quite stark. I hope that this National Government learns.

We are supporting this bill. We have pointed out our concerns, particularly in Part 1 of the bill. We have major concerns in that area, because the Government is not properly resourcing biosecurity. But in terms of Part 2 of the bill, dealing specifically with the area of ballast water—dare I tread outside the tight constraints that the Chairman puts on me—can I say that we support wise implementation of regulations around ballast water in New Zealand, and we hope that the Ministry for Primary Industries and all its Government agencies have enough resources to properly police this. Of the number of boats, be they fishing boats or cargo vessels, coming in, out of the 2,500, I suspect that not all of them are crewed, managed, and captained to the standards that we would expect. We may very well face the incursions, as listed on the Ministry for Primary Industries’ own website, that would have a huge impact on what we hope is a growing aquacultural industry—an industry that has huge potential in the pristine waters of this country.

The Chairman is acknowledging the exit of St Bede’s College—a very good school, I have to say. It is a shame it turned out so many National Party members. There are a couple of good Labour Party members from there to uphold the honour of the school. Can I say that, in summary, we do support the bill. We support the implementation of Part 2, but it is important that the Government gets this right and follows this through with appropriate policing of these regulations.

The Green Party is supporting Part 2 of the Biosecurity Law Reform Bill. We are opposed to the bill in general because of the provisions that are in there over a number of things, including the Government-industry agreements, but in this particular part to do with ballast water, we think that this is a great improvement. We believe that the fines and penalties could be somewhat more severe, and we take on our colleague Damien O’Connor’s point that the surveillance and the monitoring of this part of the bill on ballast water will be critical.

I noted in Part 1 that there was a bit around ballast water and also bio-fouling. There are some issues sometimes where you cannot really tell the difference, whether the new organism has come from bio-fouling or through the ballast water. In Tasman Bay we had a major scare when the South African brown mussel was found there; when the oil rig that was parked out there in 2008, I think, had actually deposited on the bottom this South African brown mussel. It was so close to New Zealand’s primary aquaculture area that it posed a very, very real threat. We are very, very fortunate that that threat appears to have been bypassed with good controls following that. But that was very concerning. We have oil rigs come into the Marlborough Sounds and actually park in the Marlborough Sounds in transit sometimes as well, and other ships passing through—smaller ones coming through French Pass, even. That area in the top of the south, which has such an important industry, is at real, real risk. So this bill is very important.

An organisation I was involved with in the top of the south before coming into this role, Friends of Nelson Haven and Tasman Bay, has often advocated for improved controls and monitoring, particularly in and around Nelson harbour and through the top of the south, around ballast water. We think that there have been a number of organisms brought in in that way. It is very, very hard to pinpoint which ship and when. I noticed Undaria was mentioned earlier, and that has obviously been a major issue in the Marlborough Sounds. It took the industry a lot of work and a lot of cost to get that into a particular management regime. Unfortunately, it is never going to go away, and the industry has seen that as an opportunity, I suppose, in making a crop out of it.

It does remind me, however—you know, we get a new pest in, and Pacific oyster was mentioned, which is quite a luscious oyster to eat. However, I will note that the then theoretically honourable Doug Kidd talked to some marine farmers in the Marlborough Sounds who said that maybe they could farm it in Kenepuru Sound. He said no, because it was not a natural organism there, but should it by chance happen to appear there, then maybe they could apply to farm it. What happened the next week? It was in Kenepuru Sound, brought over from Manaroa. So ballast water, bio-fouling, or just general bad biosecurity advocated by former Minister of Fisheries Doug Kidd—we have some major problems. But the Green Party sees the benefit of this part of the bill, and we will support this part of the bill. Thank you.

I intend to take only a short call on this part of the Biosecurity Law Reform Bill, which is around ballast water. I do have a question for the Minister in the chair, the Minister for Primary Industries , which is a serious question, around the issue of cost recovery. We have seen, as the member who has taken just taken his seat, Steffan Browning, has talked about, that some of the penalties and offences that exist in Part 2 of this bill are an improvement, but sometimes that means nothing when we are unable to actually get any of the money out of the individuals involved. You often find that the Government will say “Well, we have got these significant penalties, we are able to recoup some of the cost.” But I would like to know from the Minister where in this piece of legislation—maybe it is in the convention that is referenced here; I do not know—is that ability for New Zealand to enforce cost recovery so that if we do have a biosecurity incursion in our marine environment, it is not the taxpayers of New Zealand who end up paying for that and it is not the people working in the aquaculture and fisheries industries who end up paying for that.

It is the same thing that we have seen, as my colleague Grant Robertson said, in the exclusive economic zone legislation, where we are still trying to discuss with the Government the issue of cost recovery and ensuring that the insurance and bonds that are in place up front do mean that that cost recovery is real. It is all very well saying we are going to go for full cost recovery, but if the company then just closes up shop and the ship or vessel is registered in Liberia or somewhere on the other side of the world, that has—

💬 Hon Clayton Cosgrove: Gisborne.

No, Gisborne would have very, very stringent rules and regulations around this. Coastal shipping is a very important part of our economy on the East Coast, and I know that the Gisborne port was very grateful for the focus that Annette King, when she was Minister of Transport , put on coastal shipping.

It comes back to, I think, a more general point about ballast water and the treatment of ballast water by the shipping companies, which is that the decimation of our domestic coastal shipping fleet has led to far fewer safe practices in our territorial waters and our exclusive economic zone. This is really coming to light only now and even the Government is having to acknowledge it—not just practices around the environment, such as the discharge of ballast water, but labour practices and the way that employees are treated on these vessels, which sometimes is not far short of slave labour, as well as the way environmentally they operate in our waters. I know that what is left of our local fishing industry, for example, is very concerned at the unenvironmental practices carried out by some of these foreign fishing vessels. They come in and trap a number of New Zealand birds in their set-net lines, then suddenly the entire fishery is shut down when we know that our local fishing guys really value and respect the environment in which they operate. It is no different when it comes to the discharge of ballast waters. I think that a strong domestic coastal shipping fleet would act far more environmentally responsibly in New Zealand waters than those kinds of rusty tin cans that come from overseas. As we saw in the case of the Rena, the impacts on the environment can be particularly disastrous.

That was all I wanted to say on this part, but my specific question to the Minister is around cost recovery—and, Minister, please do not say that that is not your area and that someone else is in charge of that. That is another thing I find frustrating about a lot of this legislation that is protecting the environment, particularly in the marine area. Suddenly the biosecurity Minister says “No, no, no, once something bad happens it is the Minister of Fisheries.”, or “It is the Minister of Transport if it is an oil spill, because that comes under the Maritime Act.” This is one of the big issues that we have: ensuring that when you have so many pieces of legislation all layered on top of each other, there are not any gaps that mean that it ends up being the taxpayers of New Zealand who pay for any cost recovery, any clean-ups, and the biosecurity impact of an incursion.

We need to ensure it is not those important industries, which are the backbone of our economy, that end up paying, because they have to shut down their practices and lose a lot of their product, especially in the case of aquaculture and fisheries. So it would be interesting to hear from the Minister where the cost recovery provisions are in this part of the bill.

It is my pleasure to take a call on Part 2 of the Biosecurity Law Reform Bill, around the amendments relating to ballast water. As my colleagues have articulated, Labour supports this bill because it helps our biosecurity systems and staff work more effectively to prevent and control pest and disease incursions. What we have seen over recent years is the absolute danger and threat that biosecurity pests pose to the New Zealand economy. Labour understands the need, understands how important biosecurity protections are, and that is why under the previous Labour Government investment in biosecurity more than doubled, from $94 million in 1999 to $187 million in 2008. It involves an incredibly important part of our economy.

One of the important things that this piece of legislation does is that it actually brings the legislation up to date with the technology that is available in terms of both detecting and dealing with incursions when they are found. I think that is one of the important things when we are looking at this. My colleague Moana Mackey just spoke about the need to see the biosecurity legislation as an overarching piece of legislation that is central to our economic well-being, and I also would like to offer the comment that we need to see how this piece of legislation fits with other areas of investment. Our biosecurity is only ever going to be as strong as two components: one is having the people to monitor, and actually having adequate resource in that area; and the second area is ensuring that we invest and continue our investment in the area of science and innovation, in the area of biotech.

A review was carried out in 2001, and it found that 88 percent of our biosecurity expenditure was invested in post-border research. When we look at what marine environments were receiving at this time, it was very low. We were talking about 5 percent of the money that was spent on biosecurity research going to fresh water, and 2 percent to marine environments. But since 2001 there has been an increased emphasis on science in the marine biosecurity area, because it is understood what an important part of the New Zealand economy it is, and it is in part these advancements that this legislation will enable to be used.

Marine biosecurity received very little attention until the 1990s, and it was really the arrival of various algae in our shellfish beds that brought to our attention what a significant economic threat incursions in the marine environment could play, and that is why these Part 2 amendments are so important. We do have increased activity in our coastal shipping. The sea has changed, we do have changes happening there, and we need to ensure that we are protecting our environments.

New threats have emerged and have become apparent since the previous piece of legislation was passed in 1993. This is no more particularly so than in the marine area. The risks offered to marine biosecurity by visiting vessels are significant. The new activity within the 200 miles of the exclusive economic zone opens up some real questions in terms of what organisms may come into play with increased economic activity in our exclusive economic zone. When we have a think about what our future is and where our economic future lies, aquaculture and our ability to utilise our marine environments are going to be so important to so many parts of our economy. That is why we believe that it is so important that we do have these regulations around ballast water, and that we do have a good regulatory environment that protects the biosecurity of this area.

If we have a look at what is actually needed in this area in terms of the science and the technology, there has been an investment there, and it is focused increasingly on increasing our understanding of the pests that are already present in New Zealand. My colleague Damien O’Connor talked about the fact that biosecurity hazards have been brought in to New Zealand waters for a couple of centuries now. This is not something new. We have an existing bank of biosecurity threats. We need to have knowledge of what is already there. We also have to have improved survey and surveillance methods so that we can develop detection of what organisms are present and what ones are going to pose a threat to our marine environments and the economic activities that are happening within those environments. We need to know, when a vessel comes in and there is a release of ballast water, exactly what it is that we need to be testing for, how we are going to test, and how the tests actually fit with international testing environments.

There are various regulatory frameworks that are imposed on our exporters in the shellfish sector in terms of how it is that we test for algal presence within many of our shellfish beds. For example, access to European markets is highly dependent on our still being able to afford a mouse biotoxin assay. We need to actually keep this capability somewhere within the New Zealand science ecosystem. That we look at how this is funded is vitally important if we still want to have access to various markets. So the ability to actually know what it is we are looking for and how it is that we are going to test for it is vitally important.

But as well as knowing what is there and knowing what test to use, we also need to develop new detection tools. We need to be thinking about the next generation of work and we need to understand the origin of these incursions, if we are going to prevent them. Actually having the ability to regulate ballast water is so important, because we need to be able to undertake very careful, very considered risk analysis. This brings me to the point that my colleague Grant Robertson posed to the Minister for Primary Industries. He asked how it is that we marry this legislation, this bill, with the exclusive economic zone legislation that is going through the House. The regulatory impact statement for this piece of legislation talks about its relationship with the exclusive economic zone legislation and how they will fit together, and notes that it is not there. A significant question that has been raised throughout the passage of the exclusive economic zone legislation, as we have seen it go through the House, is around how much risk we really are willing to take in our marine environments. Are we going to take a cautionary approach and invent a whole new way of doing things, or are we going to treat with real seriousness the need to protect our marine environments by adopting already existing standards that are used throughout the world in terms of precautionary approaches to these environments? This is a question that really does need to be asked, because this bill is all about our understanding our biosecurity in not just a terrestrial way; this bill is really about strengthening up our marine protections. We have seen how important the ability to protect our marine environments from biosecurity incursions is.

These are important questions that we are looking to be answered: how it is that it fits with this, how it fits within the wider plan, given that it is so important to our economic future and our economic survival? We need to continue to invest and to innovate in this area of our science, given how important it is, but we need to have the enabling legislation that will allow the utilisation of these technologies. Thank you.

The question was put that the amendment set out on Supplementary Order Paper 27 in the name of the Hon David Carter to clause 76 be agreed to.

Amendment agreed to.

Part 2 as amended agreed to.

Part 3 Related amendments to other enactments