Environmental Reporting Bill

We now move to the debate on Part 2. We have Eugenie Sage’s amendments to clauses 7, 10, 12, 13, 14, 16, 18, and 19, set out on Supplementary Order Paper 87, and a tabled amendment inserting new clause 11A. I am making it clear that we are debating those amendments and what was agreed at the second reading.

It is my pleasure to take a call on Part 2, and I want to speak to clauses 7 and 10 of the bill in particular, which cover off the content of both the synthesis and the domain reports. Clause 7 covers the synthesis reports, and clause 10 covers the domain reports. In addressing those clauses, as agreed to in the select committee and reported back to the House, I also want to address the amendments around the way they may be improved, which Eugenie Sage has put up in Supplementary Order Paper 87.

Let us turn our attention, first of all, to clause 7 of the bill, which covers the contents of the synthesis reports. It asks that “(1) Each synthesis report must describe, in relation to the topics prescribed in regulations made under section 18,”—and I will come to section 18 in a further contribution—“all of the following matters: (a) the state of New Zealand’s environment including biodiversity and ecosystems; and (b) the pressures that may be causing, …”. The reason why we are supporting the Supplementary Order Paper that addresses clause 7 of the bill is that what we want to see meaningful environmental reporting that is of genuine benefit to the environment and that gives us some way to analyse what the cause is of the state of the environment that we are observing. What we are seeing, in terms of the legislation as it is before us, in clause 7 is that it is far too descriptive and not analytical enough. What Eugenie Sage’s amendment says, as set out, is that there are ways to analyse the content of those reports, and it is a far more productive and useful document when we have the synthesis reports come back to us. That is the change.

We have signalled our opposition to this bill from the very beginning. We have signalled our opposition to it at the select committee and in our contributions to this stage of the debate. What we have also signalled is that we would be willing to support it if there are some changes made to the legislation as it is reported back. Actually, making sure that we have meaningful synthesis reports and meaningful domain reports, and the way that the Supplementary Order Paper sets out the amendments, which would go some way to achieving this, would mean that Labour could support the legislation. Like the Greens, we would like to have seen some perhaps more far-reaching changes, but we think that the amendments that have been put up, particularly in Part 2, are going a long way towards making this a bill that every member in this House could agree to. I will be very interested to hear from the Minister in the chair the reason why the Government will not agree to the measures in Part 2, which are being put up and supported by a number of parties in this House, and which would mean independent reporting.

In mentioning this, I am turning my attention now to clause 18, in Part 2 of the legislation. What I want to know from the Minister is why there is objection to putting in place protections to ensure that we do not just have a Minister of whatever political hue making decisions, for political reasons, about what is going to be reported on in our environmental reporting. What we want to see is that the decisions that are being made about what topics will be covered off are being made for purely environmental reasons—that they are in the best interests of the environment, and not in the best interests of someone’s political agenda. That is what the amendments that Eugenie Sage has put up in her Supplementary Order Paper would achieve. She has found a very good way to work around that.

There are other bodies. Many submitters came to the select committee and described other mechanisms that could be used to ensure that we do have independent environmental reporting. Although these have not found their way into the bill that we have before us, they have found their way into Eugenie Sage’s Supplementary Order Paper and into the amendments that she has put up. Several other bodies were put up as alternatives. The Parliamentary Commissioner for the Environment was put up as one body that could make the decision. The Parliamentary Commissioner herself told us that because she had a commentary role in this bill, this would not be appropriate. So for that reason, the amendments that we are looking at today look at alternative mechanisms. They look to the Government Statistician as one person, along with the Secretary for the Environment and the power of regulation making, and the way in which that can be used. It is our firm belief that when it comes to the interests of the environment, we have to have political distance in place.

The other clause that I want to turn my attention to now is the one covering the role of the commissioner, which I alluded to in my discussion of a previous clause. The role of the commissioner is a very specific function under this legislation, as covered off in clause 17: “(1) In accordance with his or her functions and powers under the Environment Act 1986, the Commissioner may, at his or her discretion, report on an environmental report and the processes that produced it. (2) The matters that the Commissioner may report on under subsection (1) include, but are not limited to,—(a) analysing environmental reports: (b) identifying trends: (c) discussing the implications of environmental report findings: (d) recommending responses to environmental report findings.”

These are all incredibly important functions, and already we have seen the commissioner produce one report that is a prelude to what is going to be produced under clause 17 of this legislation, in terms of the air quality domain report that was produced earlier this year. It gave the public a bit of a taste of the worth and the value of the reporting that we could potentially see under this legislation. What we had from the commissioner was a very sound consideration of the science, particularly with regard to particulate levels and what it is that we should be measuring when we are considering air quality in New Zealand. Should we be looking at the kind of particulate that we have previously measured, which, traditionally, has been of concern in New Zealand—PM10—or should we go down to a smaller level and measure a different kind of particulate?

It is our great desire to be able to support legislation such as this, which is going to produce such sound information on the state of our environment. It is with sadness that Labour is not able to support this legislation. We are one of very few countries in the OECD that do not have an environmental reporting framework. We heard the chair of the Local Government and Environment Committee, Scott Simpson, who did a very fine job of chairing the select committee, say that we are clutching at straws—echoing the words of the Minister who was in the chair last night. But it is simply not true. We worked hard and we worked constructively at the select committee to try to ensure that we could have genuine independent environmental reporting in this country. That is not some straw. The fact that you do not have political decision-making for political purposes around how it is that we are going to have a safeguard around our environment is not what I call a straw. Perhaps the attitude of the Minister in the chair of the Local Government and Environment Committee gets to the very heart of the problem and to why it is that we have a deficit in the legislation that we are debating here tonight. They do not see a problem with having political interference and political oversight of how it is that we measure the state of our environment. But for us in Labour and on this side of the House, that is not just a straw in the wind; that is a fundamental that has to be there in any piece of legislation that purports to be about reporting on the state of our environment. It is lacking here, and I will cover off some other things that are lacking in this legislation in further contributions on this part. For this, I want to hear the Minister in the chair, Craig Foss, on his feet giving us an explanation as to why it is that we cannot put in place the mechanisms that are being put up in a Supplementary Order Paper that would give us independence.

What is it that is so frightening about having a level of independence in the decision making around what it is that we report on? This is something that has to be addressed in the course of this debate. We cannot have a Minister who just sits there and refuses to address a question as fundamental as that. We are not asking for the earth. We are asking for a basic tenet of any robust and good environmental reporting system—that is, independence from political interference. That is not too much to ask, and until we can see that in this legislation, we cannot support it.

I just want to follow on from that member, Megan Woods, and talk about political interference, independence, and accountability. I think it is right that the Minister is involved with the domain reports and the synthesis reports, for that mere fact of accountability. I would point out in clause 18, “Regulations”, subclause (3) says: “Before recommending the making of regulations under subsection (1), the Ministers must consult (a) the Government Statistician; and (b) the Commissioner; and (c) the public; and (d) iwi authorities; and (e) local authorities.” So there is consultation and there is accountability. With that clause in there I think it does exactly that. It stops that political interference. It means the Ministers have to go through that consultation to speak with the Government Statistician, the commissioner, and the public especially. So the public will be involved in the domains, and I think that very much answers that question around political interference.

I can understand the calls for independence but, equally, what we want is accountability. That is why under this Government the Ministers will stand up and take accountability. I also draw reference to clause 15 about reports being fair and accurate. One thing that was not discussed in the previous stage around purpose is that the purpose of this bill—yes, we are reporting on domains every 6 months and a synthesis report, I think, every 3 years, but underneath that is trust and confidence.

What this bill is doing through clause 15—we need to ensure that the public has trust and confidence in our environmental reporting. At the moment they, quite rightly, probably have very little trust and confidence. We are hardly on a par with other OECD countries and, yet again, it takes a National Government to stand up in the environmental space and deliver. So with the trust and confidence, I think the public is sick of hearing half-truths and misinformation. We know that when we had the experience of the Green Party putting out around our primary industries having a high carbon emission rate.

The CHAIRPERSON (Hon Trevor Mallard): Order! The member will resume his seat. We are not having a good night tonight. The member is making a speech that might have been relevant at the second reading. We are now debating Part 2 as reported by the Local Government and Environment Committee, and I want the member to come back to why or why not this particular part meets the objectives that the House has accepted at second reading.

There is just one final clause I would like to refer to, clause 13, “Roles of Secretary and Government Statistician”. Subclause (3) is about the Government Statistician understanding and being satisfied that best-practice principles are at play here. That is because we need to ensure that we have data quality. In the sense of measuring the reports of the domain reports we need to ensure that the quality of the data is rigorous and has value. So that is why I am happy to support this bill.

I just take the opportunity to talk particularly to Supplementary Order Paper 87 proposed by Eugenie Sage, which has been a topic of a lot of the conversation. Clause 18 was, as the member said earlier, one of the contentious points during the select committee process, at the second reading, and now, of course, while we are on Part 2. There are concerns that some people have about clause 18. I do acknowledge, though, through the Chair, that the work that the Local Government and Environment Committee did to get us to this point was obviously very, very good work, and well done to those members. It is unfortunate that some parties are not agreeing with, and will not be voting for, this part and this bill at the end of the day, but let us see how we go.

The concern seems to be about the independence of topic-setting by the Minister of Statistics and the Minister for the Environment, and it is being made out as if this is something new. Well, in fact, the Statistics Act 1975 already has this same model embedded. In fact, without reading the particular section of the Act, the key point is that the ministerial power has never been exercised since the Act was passed in 1975, but it is, essentially, this same model. If, in fact, the Government Statistician believes the Minister has interfered in some way in the goings on or in the makings of statistics at an operational level, under that particular Act, they can report to the House or make public their concerns about that. As I noted, that section has never been used, at least not since 1975. Again, that is the same model that we have here in this bill.

I do note that the Supplementary Order Paper has a suggestion that the Secretary for the Environment and the Government Statistician do the topic-setting. I also acknowledge Megan Woods’ point that there was another suggestion in, I think, an earlier discussion that the Parliamentary Commissioner for the Environment do the topic-setting. But she also acknowledged why that should not happen, and she pointed to some of the checks and balances in clause 17. That is absolutely fair enough, but it brings me to the checks and balances, because, as the we saw in the second reading, the House did accept the changes made by the select committee, inserting more consultation around the topic-setting by the Ministers with local government and iwi.

If there was deemed to be some mischief, let us say, clauses 6(1A) and 9(2), I think—I might have that round the wrong way—also point to the Supplementary Order Paper by Eugene Sage—

The CHAIRPERSON (Hon Trevor Mallard): Eugenie Sage.

Excuse me—Eugenie Sage. Apologies for getting the name wrong. Clause 9(2) says: “As soon as is reasonably practicable after the Secretary and the Government Statistician have published a domain report, the Ministers must jointly present the report to the House of Representatives.” So political accountability to this House, to Parliament, is actually paramount in this bill, because the other side of the debate, and the proposals from the member—in fact, it is a well-worn path, if you like, that we have topic-setting in the regulatory process.

But I note that if the topics were to be set by the Secretary for the Environment and the Government Statistician, well, yes, some may see that as being a better option. But having topic-setting in the regulations also allows for important levels of accountability to members of this Parliament, who are representatives of and to the public. So if the Ministers are jointly recommending regulations—i.e., the topics—they are accountable for those choices made when setting topics and for ensuring that the scope of reporting is relevant to New Zealanders—i.e., they are accountable to this Parliament, to this House. If, as in the other proposal under the Supplementary Order Paper, the Secretary for the Environment and/or the Government Statistician were to set the topics, accountability for their decision making would be met through a judicial review, as it is with any statutory power.

So, again, there are pros and cons to both proposals. I fully acknowledge that, but I also fully acknowledge that these were canvassed very well at the select committee. I acknowledge that those points were reported on in the various reports by the political parties in the commentary on the bill. But, actually, there is a well-worn path. The model of independence is already in place under the Statistics Act in the form of a regulatory process providing certainty and confidence and accountability to this Parliament and to this House and decisions made by those two Ministers in setting the topics are open for accountability to the House.

The select committee did a good job in arriving at the decision that it did. It enhanced the original bill to give it further checks and balances given the concerns raised at the select committee, and now these have been accepted by the House in the bill’s second reading. For those reasons, we are not supportive of relitigating the discussion and argument as proposed in respect of the member’s Supplementary Order Paper.

I do not think that the Minister who just spoke, the Minister of Statistics, really knows what accountability is in the context of this bill, the Environmental Reporting Bill, because what I heard from him was a speech about the functions of Ministers and not about their accountability at all. In fact, this bill is fatally flawed as far as accountability and many other aspects of it are concerned.

Clause 18, as agreed by the Local Government and Environment Committee, makes it clear that topics are to be prescribed by regulation and that that will not be an independent method of selecting topics for reporting. There is no point in having a clause 14 that imposes a duty on the secretary and the Government Statistician to report and act independently when that is not the case as far as the selection of topics by Ministers is concerned. And there is no point in having a clause 15 imposing a duty on the secretary and the Government Statistician to report fairly and accurately when that is not something that is also required of the Ministers in setting the regulations to determine what the topics are. The truth is that it is purely and completely a function of the Ministers as to what topics are to be reported on, and that is not independence, and that is not accountability. So New Zealand First cannot support the bill for that reason, not because we just want to oppose things, as Scott Simpson says. These are good and substantial reasons for opposing the bill, and New Zealand First prefers Eugenie Sage’s Supplementary Order Paper 87 instead.

Clause 18 says the Ministers may cause regulations to be made prescribing topics for both synthesis reports and domain reports, and that means that they can choose what they feel should be reported on, and they can also choose that something will not be reported on, presumably, if that would not be convenient for the Government. There is only a little guidance given in clause 18(2) about how the topics are to be selected. There is the requirement that a pressure topic or impact topic has to affect significant areas, resources, or people, and, secondly, there is a requirement about measurability. The only other limitation is in clause 18(3), which is the requirement to consult. Mr Doocey thought that meant that that created independence and accountability as far as the Ministers are concerned, but of course it does not. A duty to consult is just that: to hear what others have to say and to take it into account. It does not mean that the Ministers cannot still choose what to report and what not to report on. So it does not go nearly far enough. In the end, the section reserves full power to the Ministers to control environmental reporting in New Zealand with virtually no checks and balances, nor any genuine oversight, nor any genuine transparency, nor any real accountability, for the reasons that I gave. The Ministers, as a result, will have virtual carte blanche to do as they wish as far as environmental reporting is concerned in New Zealand. They will have massive manoeuvring room in deciding that, they will have huge opportunities for manipulation—political manipulation—as far as that is concerned, and, most of all, they will have the power to actually prevent reporting on topics that it is not convenient for the Government to have reports on.

There are two good alternatives to what is proposed in the bill. One is that there could be a schedule in the Act every 3 years to determine what the topics should be. If it is done only every 3 years then that is not an excessive imposition on Parliament, and that is actually democracy. It means the members in this House would have the opportunity to say what the topics should be. That would be debated in public and the public would, therefore, get a good grip on what was happening. But that is not going to be the case under this bill. The other alternative is Eugenie Sage’s Supplementary Order Paper 87, which provides that the secretary responsible for the Environment Act and the Government Statistician would jointly determine what the topics would be. That is independence. That is a system that does not involve Ministers at all, and excludes the possibility of political interference. That is what independence means, not what some of the members on the other side of the House think it means.

The only other thing that I wanted to mention about this part was clause 16, because it has not been sufficiently altered by the committee—indeed, not really altered at all. It prevents the Official Information Act from operating as intended, by limiting access to what is called untested information. Officials will be able to withhold information that they prefer to avoid being put out into the public arena. Members of the public will not be able access this so-called untested information, and they should be entitled to do so. It is arrogant for the Government to say to the public of New Zealand that they do not need—and they should not have access to—that information because it is untested. Well, in my view, it is over to the people of New Zealand to decide what they believe is valid and valuable and worthwhile information, whether it is tested or not. Why should it matter whether it is tested or not? The public should still have access to it. It is for them to decide whether it is of value, and not for some official to do so. Nowhere else, I believe, in similar legislation is an excuse like that given for excluding the operation of the Official Information Act. After all, it is harmless statistical information. It is not as though it is dangerous information, so what harm is there in allowing that information to be given?

In the end, this bill just fails. It fails completely, not only because it behaves with arrogance towards the New Zealand public by not giving them information that they should be able to access, but because it does not ensure that reporting is independent. The only way it can be independent is if Ministers do not, in the end, determine what topics are to be reported on or, indeed, are not to be reported on. Either of the two alternatives that I gave would be satisfactory and, I believe, would earn the support of every party in this Committee. We are not opposing this bill just because that is our job; we are opposing it for good and substantial reasons. If the Government was to move on this in the way that I and others have suggested, it would earn full support right across the Committee, because we all want to see a high standard of environmental reporting. That can be achieved only without political interference, with independence, and with genuine accountability. This bill just does not measure up.

I rise with some degree of trepidation, given your rulings tonight on relevance, but we will give it every effort to make sure that the comments are relevant. I could just thank the Minister for his contribution to the debate, but I think it is interesting that if you look at the Statistics Act, and section 6 of that Act, it provides that “No government department shall commence or commission any statistical survey or make a substantial alteration to an … existing survey without the written approval of the Minister:”. I think that is quite different from the provision that we are seeing in this bill, which has in clause 18 the Ministers actually setting the topics for environmental reporting. In the Statistics Act it is the actual Government Statistician who comes up with the ideas and the proposals for statistical surveys; the Minister simply has to approve them.

I think it is quite ironic that we have celebrated 800 years since the signing of Magna Carta this week. From its beginning this Parliament has adopted the Magna Carta’s ideals of individual liberty and freedom and constraint of power. One of the concepts of the rule of law is checks on the power of the executive, and an independent, non-politicised Public Service that is able to provide robust advice to Ministers is one of the checks on the powers of the executive. So that is one of our major concerns with this bill, because the regulation-making powers in the bill exist only for the Minister for the Environment and the Minister of Statistics to set the topics for domain reports and synthesis reports. That is concentrating power in the hands of Ministers. It undermines, in our view, the rule of law. It also signals that this Government does not trust the Public Service. It does not trust senior chief executives.

By enabling the topics to be set by Ministers, the Government is politicising this whole process. That is why my Supplementary Order Paper 87 and the changes it proposes to clause 18 provide for a much more independent and robust system, because under my Supplementary Order Paper the Government Statistician and the Secretary for the Environment, instead of Ministers, would determine the topics to be covered in both the synthesis and the domain reports. The process that is set out in the bill for there to be consultation with the public, iwi, local authorities, and the Parliamentary Commissioner for the Environment would continue. Instead of having regulations—there would be no need for those—the topics would simply be notified in the Gazette.

So that is one of the changes in my Supplementary Order Paper. The other ones I would like to comment on are the changes to clauses 7 and 10, because clauses 7 and 10 set out the content of the synthesis reports and the domain reports—the synthesis reports being produced every 3 years, and the domain reports on an occasional basis every 6 months. Clause 7 at the moment lists the matters that the synthesis reports should cover, including the pressures that are causing or may cause changes to the state of the environment and the impacts that those changes may be having on ecological integrity, public health, the economy, Te Ao Māori, and culture and recreation. Officials told us that that was not intended to be an exclusive list of matters, yet the bill is not clear on that.

There is an advantage, always, in the law being clear. It reduces the scope for litigation. So my Supplementary Order Paper seeks to make it crystal clear that the lists in clause 7 and clause 10 are not exhaustive lists. There are other matters that are obviously missing here. One of them is general social well-being. That is not listed in clause 7 or clause 10. The other obvious omission is that there is no reference to climate change, the greatest—

Order! I apologise for interrupting the member. The time has come for me to report progress.

House resumed.

The Chairperson reported the Exclusive Economic Zone and Continental Shelf Environmental Shelf (Environmental Effects) (Transitional Provisions) Amendment Bill without amendment, progress on the Environmental Reporting Bill, and no progress on the New Zealand Superannuation and Retirement Income Amendment Bill.

Report adopted.