Wildlife (Authorisations) Amendment Bill

Members, the House is in committee on the Wildlife (Authorisations) Amendment Bill. We come first to Part 1. This is the debate on clause 4, “Amendments about authorisations”. The question is that Part 1 stand part.

Thank you, Madam Chair. I think it would be very useful for the Minister of Conservation to go through this part very carefully with us. As you just said, we’re just talking about one clause, clause 4. But this is a very important clause—

Grant McCallum: Very short clause.

Hon RACHEL BROOKING: —and where we’re talking—the member opposite is saying it’s a very short clause. It’s not a short clause. It’s a couple of pages clause, but it is only a couple of pages. So I think the Minister will have time to go through it with us slowly and deliberately.

So this is inserting some new provisions after section 53 and what my questions will be about is how these new provisions interact with each other. Section 53 of the Act is not being amended and that says, “The Director-General may authorise taking or killing of wildlife for certain purposes.” Then it goes on to say, “The Director-General may from time to time in writing authorise any specified person to catch alive or kill for any purpose approved by the Director-General any absolutely protected or partially protected wildlife or any game or any other species of wildlife the hunting or killing of which is not for the time being permitted.” So that is a very wide power that is given in section 53. Section 53 has not been amended by this bill, but it’s important because the context is there, setting up that the director-general can make an authorisation to kill.

Then we know we’ve had this case with the Mt Messenger Bypass where the judge said, “I”—the judge—“have to look at what the Supreme Court has said in the shark diving case.” That is that we have to import the purpose of the bill, which is about protecting wildlife, into that section. So a decision maker using this section can’t just look at the words by themselves and go, “Oh, I can do whatever I like.” It’s got to be in the context of making a decision that is consistent with the scheme of the Act. So, hopefully, nobody’s disputing what I’ve just said—setting out, that is, section 53.

What this bill is then doing in clause 4 is inserting a whole lot of other things which the Government will say is for clarity and is to allow an authority under that section 53 to kill wildlife incidentally. I’ll ask questions about the relationship of section 53 to section 71 later—well, my colleagues might—but now if we go through section 53A which is being inserted after section 53, which is the director-general can make a decision. Then it says—and there are a whole lot of terms here that I would like the Minister to focus on. So it starts with “Without limiting section 53”, the section 53 that is very broad and that we’re about to limit in the subsequent sections. Why is that phrase there: “without limiting section 53”? Surely the whole purpose of what comes after in clause 4 is to limit section 53.

So then it’s “The Director-General may grant an authority”—so it’s discretionary, that makes sense—“that authorises the killing of wildlife that is incidental”. Then for it to be incidental it has to be, “is not directly intended but is unavoidable and foreseeable as a consequence of carrying out the lawful activity.”

So there is a question in here as well about what sort of activities has the Minister received advice on that would be both unavoidable and foreseeable? So that’s one question. The other question on 53A is, why is the phrase “without limiting section 53” there when the whole scheme seems to be to limit to section 53?

But then we move on to these other clauses, and I think we’ll probably have to spend a bit of time on those, so I’ll come back to them in a moment if the Minister is of a mind to answer those first two points.

CHAIRPERSON (Barbara Kuriger): Take your next call while the Minister is debating.

Hon RACHEL BROOKING: Thank you. The question is about the set-up and the consistency of these different clauses together. We then have section 53B inserted by clause 4, which is “To avoid doubt, the Director-General may grant an authority referred to in 53A only if it is consistent with the protection of wildlife.” That “only” seems to be very important and seems to be a limitation on section 53. The “only if it is consistent with the protection of wildlife” does also seem to be incorporating that Supreme Court shark case and the more recent one. So I’d like the Minister to comment on the word “only” there and tell me if he agrees that this is the very important clause that incorporates that case law.

But then we go to section 53B(2). It’s that “The authority is to be treated as consistent with the protection of wildlife”—which is the only—“if in granting it, the Director-General is satisfied that its overall effect would be consistent with the protection of populations and individual wildlife.” So it appears then we’ve got this at subsection (1), only if it’s consistent with protection of wildlife. But, actually, then it says at subsection (2) that it’s not what we might all think is the protection of wildlife, it’s the overall effect. So what then? How do you interpret an overall effect?

Then we go to subsection (3), which is about that overall effect. So when “In determining whether the overall effect of the authority would be consistent with the protection of [a population] of wildlife rather than the individual wildlife”—and both are to be considered—“the Director-General must have regard to (a) any potential adverse effects of the lawful activity on (i) [the] populations … and; the viability of the species to which that wildlife belongs; and (b) the extent to which the authority addresses those potential adverse effects;”, and any other matters.

What sort of circumstances are foreseen then in the drafting of this that we have—you’ve got to protect the wildlife, but we’re diluting that by talking about an overall effect and then there could be potential adverse effects on those populations of wildlife. So what sort of adverse effect would be acceptable on that population of wildlife that somehow isn’t an overall effect? That’s the question here.

But then we go on to subsection (4), and “The Director-General may be satisfied that the overall effect of the authority would be consistent with the protection of the individual wildlife”—so until we hear about individual wildlife rather than populations, subsection (3) is about populations; subsection (4) is about individuals—“only if satisfied that the holder of the authority will take reasonable steps … to avoid, minimise, and mitigate the adverse effects of the lawful authority on the individual wildlife.”

Now, this again seems to be a dilution of the general idea of protection of individual wildlife because that “avoid, minimise, and mitigate any adverse effects” is a hierarchy that we see in the Resource Management Act (RMA). There is case law in the Resource Management Act to say it is a hierarchy. That you have to do the avoiding first and if you can’t do the avoiding, then you do the minimising and then you do the mitigating. So that is the hierarchy in the RMA.

So another question here is: does this hierarchy of effects from the RMA—is that supposed to apply here in this Act as well? But if it does—or even if it doesn’t—why would we only be looking at mitigating adverse effects that may have something to do with an overall effect and a negative impact on the viability of an individual animal? So that’s another question. Then we go to—[Time expired].

Thank you. Look, really pleased to be able to speak to this tonight and get some really, hopefully, clear answers from the Minister with such an important bill that has such a change in the full purpose of the Wildlife Act. So I really want to start at that broader level where Part 1 starts to unpick it, because right here already in Part 1 it’s talking about the “Authority may be granted under section 53 to kill wildlife incidentally”. So this is new section 53A in clause 4.

Now, in general, what I would really like to hear from the Minister—and, Madam Chair, should I continue when the Minister’s talking to officials?

CHAIRPERSON (Barbara Kuriger): Yeah. Just ask the question. We can pass them on. Yeah, the officials are listening too.

LAN PHAM: OK, great. Thank you. So, initially, I would be really interested to hear from the Minister why he and his Government feel that the Department of Conservation (DOC) actually needs—that there is a requirement and a justification for them to actually authorise the killing of protected species. I ask that question because the Wildlife Act, as I understand it, already includes a defence to prosecution. It applies to anyone already who kills protected wildlife unintentionally, so long as they took all reasonable steps to avoid it.

Now, this to me seems like a better situation to be in, simply because of the fact that these amendments will be changing the entire purpose and implementation of the Wildlife Act in a way that is no longer protective. The whole point of the Wildlife Act is the protection of wildlife. This change, quite contrary to the claims of making sure there is certainty and protection for developers or anyone who’s carrying out activities—which, by the way, is something we all want. We know that there are situations where this unintentional killing happens and we’re simply asking: what is the pragmatic way to do this?

Now, the Government should not be putting the Director-General of Conservation in this situation to actually be in the position of permitting the killing of protected species. This is really tricky. This, in terms of actually reading the situation, could cause the uncertainty that this Government is actually trying to fix. As far as I’m aware—and my understanding of this, and I’d love more information about it, because there’s no regulatory impact assessment, there’s no experts that are coming in—DOC are the prosecuting authority when it comes to situations under the Wildlife Act where, for example, unintentional killing or deliberate killing takes place.

Now, because they have this prosecution responsibility—and, as far as I understand, no other authority does—why then, again, to the Minister, does the justification exist to complicate the Wildlife Act and change its purpose from so clearly being protective to suddenly having these additional authorisations that actually change it?

Now, the preliminary commentary in the bill kind of touches on this. It seems just blatantly wrong. It says it “restores the regulatory approach that had been taken by the Department before the judgment.”, and that it “enables the Director-General to continue to authorise the killing of wildlife”. Now, as far as I’m aware, that is categorically wrong because the director-general has never been able to do that. That is what the High Court decision was saying. This change in legislation will now be the first time that this is put into the Act and therefore complicates the purpose and the implementation of the Act. I would really like some clear answers from the Minister about that.

Thank you, Madam Chair. I’m going to continue with a series of questions that continue on from where my colleagues have begun, because what is really obvious reading through the existing section of the bill—so section 53—and the new sections being inserted is that is becoming more complicated. So I have a lot of questions for the Minister about how these clauses—because my prediction is that if this passes in its current form, it’s going to create even more legal uncertainty, and so the winners of this are going to be the lawyers and the courts who are going to spend even more time going through to interpret it.

So if I read out 53 from the Act: “The Director-General may from time to time in writing authorise any specified person to catch alive or kill for any purpose approved by the Director-General any absolutely protected or partially protected wildlife or any game or any other species of wildlife the hunting or killing of which is not for the time being permitted.” Now, what the High Court found was that they took that section and then considered it alongside the purpose of the Act around wildlife and protecting species as a whole. So it said there needed to be a nexus or a connection between the two Acts. What has now happened is instead of amending section 53, it’s added section 53A and 53B and 53C, so what the Department of Conservation is going to have to do and the director-general is going to have to do, and then, ultimately, the courts are going to have to do is read those two sections together, which creates the complication.

I’m just going to basically refer back to what I just read out and the pieces where I think we’re talking about them; really complicated parts, now. If you look at 53B(1)—well, 53B talks about the consistency with the protection of wildlife. So, again, we’ve got that piece that actually caused the High Court case in the first place, which was the interaction between 53(1) and the purpose of the Act, and we’ve actually gone and added the purpose of the Act part in here. So, in my reading of it, it actually looks like we’re reinforcing and accepting the court’s decision and putting it—my colleague Lan Pham has made this point. But my reading of it, the reason I want to raise it again is that we’ve got to hear from the Minister because when the courts are interpreting this, they will read the Hansard to see the Parliament’s intent, and if we don’t have the Parliament’s intent from the Minister on the Hansard, we are going to have court cases coming out the wazoo, actually.

No, I haven’t finished; I’m going to go to another piece. Sorry, I’ve got a lot more questions; I’ve only just started, sorry. If I then look to 53B(2). To me, this goes on about the interpretation of that piece about the protection of wildlife. Now, the protection of wildlife, if you consider the actual bill, is mostly talking about the species as a whole. What it does in 53B(2) is says “The authority is to be treated as consistent with the protection of wildlife if, in granting it, the Director-General is satisfied that its overall effect would be consistent with the protection of—(a) populations of wildlife; and…individual wildlife.” It’s not “or”. It’s not looking only at the species; it’s actually looking at each individual piece of wildlife and the population of wildlife as a whole. To me that feels stronger than what we currently have in the Act, potentially. That’s my question to the Minister: is it actually making it even harder than what the bill wording currently says and which led to the court judgment?

Again, I say we need to have this on the record and in some detail because lawyers will be combing through this, NGOs will be combing through it, and that’ll then be leading to court cases. So I’m really concerned. I have some more questions, but I’m actually, I mean—the drafting, and I say this with respect, I mean the actual Act is a hot mess, in terms of its writing. But it’s confusing in its writing, especially when you put the two together. So I’m going to have to sit down. I’ve got some more questions around 53B that I’m going to come back to in a future call. And it looks like the Minister may finally have an answer for us.

Madam Chair, thank you for this opportunity to respond to some of the inquiries and questions. You know, our forefathers and foremothers in this House many years ago saw the importance of protecting wildlife but also the pragmatism that must go with protecting wildlife. For example, the bovine tuberculosis TBfree kaupapa, which a good friend, Minister Hoggard, and others look after, and also the building of roads and, more latterly, renewable infrastructure, that is well supported across the House.

But that pragmatism required for protecting wildlife enabled the incidental killing, with the appropriate conditions—reasonableness, hierarchy of effects that apply within that—to enable that incidental killing to take place. So we should be absolutely clear about the intentions of this Government to continue to protect wildlife by way of the Wildlife Act and the authorisations that go with it, to ensure that the existing authorities are validated, that the understanding over many, many decades, not only under National conservation Ministers but also those from the Green Party and the Labour Party—we enable new authorities to be issued. The wording that has been proposed enables this as a set of targeted amendments as a solution for a very narrow court decision that has created uncertainty, ambiguity, and the need for assurance across both environmental and economic activities.

Now, we can all admit and acknowledge that the Wildlife Act is old and creaky, and matters such as the defences will be looked at in any comprehensive review. It’s not timely for that right now. What’s timely is a set of targeted amendments for the immediate issue that we have at hand and, of course, restoring, by way of these targeted amendments, the understanding on the status quo prior to the court decision. Whilst there has been comment around the complications that are perceived to arise from the proposed amendments, I think that those amendments that have been proposed are very clear—very clear about the intentions of this Government and soon to be, I intend, this Parliament to ensure that the Wildlife Act is focused on protecting wildlife but captures the intent, the pragmatic intent, of our forefathers and foremothers in this fine House to ensure that incidental killing can take place.

Yes, the director-general has been authorising the incidental killing of species over many, many years—a couple of decades, in fact, within the ministerial leadership of conservation Ministers from different musters and parties of this House. The director-general can set conditions, and that’s why we have this hierarchy of effects set out in new section 53B(4), inserted by clause 4. That’s why we have the “avoid, minimise, and mitigate any adverse effects” phrase set out in that subsection. Of course, it must be consistent with species protection at a species level, not just at an individual animal level. That’s what we are focused on this evening.

There’s a whole range of organisations that are involved in upholding and satisfying conditions within authorisations that are issued under this Act, whether or not they are infrastructure developers, pest controllers, kaimahi out on the conservation and other estates throughout the country, acting in a manner to uphold the TBfree aspirations. They do sometimes, and foreseeably, kill wildlife; that has been undertaken for many, many years.

Thank you, Madam Chair. I appreciate the questions that my colleagues have asked going to the heart of clause 4, and new section 53 and the different parts of section 53A, B, and C, because there is no appeals process in the Wildlife Act. So if Parliament doesn’t get this right tonight, then the only recourse again is judicial review. So it is important that we nut out some of the detail.

I don’t agree with what the Minister said at the start that this clarifies the process, and I think as many of us have been reading the detail it actually muddies the waters, and that’s why we’re drilling into the detail of section 53A, B, and C in relation to the existing section 71, and how those parts interact with section 71.

However, I want to zoom out a little bit in my line of questioning, and I do have a number of detailed questions as well for the Minister, but I want to zoom out a little. The fact that we’re doing this under urgency, the fact that we don’t have a select committee process tonight—the Minister has been quoted in the media, pointing to the legal uncertainty that exists as a result of the March 2025 High Court ruling, and he talks about the different projects that have been given permits by the Department of Conservation (DOC) and are coming through the pipeline as well and the fact that they might have to wait a little bit before conducting the construction work and the rest of what’s required for those projects. But that doesn’t necessarily mean a process of passing this bill, all stages under urgency with absolutely no select committee process. It could have been, as we’ve pointed out already, one or two weeks.

So I’d really like a bit more of a rationale from the Minister in terms of what are those projects? What is the urgency there? What would have happened if we had had one or two weeks of a select committee process to consider and to hear from those who’ve been working for many years on reviewing and redrafting the Wildlife Act in a way that permissions granted through section 53 are more robust. So that is my first question.

I would also like to know: what are some of the other options that the Minister has considered? So this is a piece of legislation that’s come to us under urgency that fixes—well, it doesn’t actually fix anything because what it does is, essentially, disagree with the High Court ruling and to return the interpretation of the Act to what DOC had interpreted it as before the High Court ruling. So it kind of reverts to earlier practice. The High Court ruling pointed out that those permits that were granted were not in accordance with the purpose of the Act, which was to protect biodiversity.

So I’d like to know from the Minister: which part of that High Court ruling does he disagree with? Why has the Minister decided to take an approach that is, frankly, reasonably sloppy? All it does is revert. It doesn’t improve the Wildlife Act at all. The principal purpose of the Wildlife Act is to protect biodiversity.

Others have pointed out, and I agree, that this particular piece of legislation dilutes the very purpose of that Act. So why? What were some of the alternatives? We don’t have a regulatory impact statement, so we can’t consider that. There is no proactively released Cabinet paper, so we don’t actually know what the rationale was or what the Minister’s thinking was in landing here, where we’ve landed today. What were some of the other alternatives or options that officials might have provided to the Minister? What has been considered and why was, then, the decision to land on just this one targeted piece of legislation that, frankly, doesn’t clarify the purpose of the Act any better and muddies the waters even further?

I’ve got a couple of questions also around section 53A, B, and C specifically, but for now, the other question that I’ll leave the Minister with is this: the Environmental Defence Society, for example, has done a fair bit of work on what a review of the Wildlife Act could look like. It’s quite a lengthy document. One part of that was to actually bring in an appeals process. Were those sorts of considerations things that the Minister looked at when looking at how to improve the Wildlife Act, or was it just to revert to behaviour that the High Court has actually ruled against and said is not in accordance with the principal purpose of this Act?

I would like to come back, though, to some of the questions that I have, specifically around section 53, as well.

Thank you, Madam Chair. I appreciate the opportunity to talk. I’m hoping the Minister’s going to give more in-depth and substantive answers in the course of this process, because there are a lot of serious questions here and we’ve got a piece of legislation that has not had any external consultation on it.

The questions that my colleague has just been asking about the advice the Minister has received would be very useful to hear. I have a few relatively quick questions on that, in a general sense. What advice has the Minister received on how this bill aligns with New Zealand’s international conservation treaty obligations? How do other jurisdictions deal with this challenge of incidental killings and development processes?

Simon Court: Good question, Mr Abel.

STEVE ABEL: Thank you, Mr Court. And how do they grapple with this problem of a piece of legislation like a Wildlife Act, whose primary purpose is to protect wildlife, and then a conservation authority being given the task of issuing permits to go against the purpose of the Wildlife Act—the primary purpose—which is what has been deemed to have been unlawful by the court?

Just while I remember, the Minister said that for 20 years these unlawful permits have been issued. I wonder, given the Wildlife Act has been around for best part of 70 years, or more, what was done prior to 20 years ago when roads were being built and other forms of development being enacted, which would have involved incidental killing of wildlife. I think this perhaps captures the nub of our question here: is the action taken in this legislation necessary? Were those permits that have been issued for 20 years even necessary? That is the speculation of the Environment Law Initiative, that perhaps it wasn’t even a necessary measure to take.

My other question, in a general sense, is: how has Te Tiriti o Waitangi been considered in the drafting of these provisions, particularly regarding customary wildlife protections? As my colleague Tākuta Ferris was pointing out in his earlier speech, these are taonga species we’re talking about. Those species that are absolutely protected by the Wildlife Act include kiwi, kea whio, tūī, fantail, pīwakawaka, toroa, tuatara, jewelled gecko, moko kākāriki, Hochstetter’s frog, Archie’s frog, long-tailed and short-tailed bats, flat snails, and many other species. Numerous species—manta ray, basking sharks, and sea turtles.

Finally, in terms of broader questions: what opportunity was provided for stakeholder engagement, both tangata whenua stakeholder engagement, in terms of those customary wildlife protections, but also engagement between iwi, conservation, and non-governmental organisations? What consideration was given to the perspectives of how to reasonably manage this challenge of incidental killings? It’s obviously a thing that we’ve been grappling with for some time, and, in fact, one would argue—and it hasn’t really been answered by the Minister yet—that it’s covered already by section 68AB of the Act.

A key question I’ve got on new section 53A, in clause 4—now that we get to the key parts of Part 1 after those broader questions—is: how does it not weaken the protective purpose of the Act to make these changes to Part 1? The clear intention of the Act is to protect wildlife. So I’d just like a very straightforward answer from the Minister: how can it not possibly weaken that protective purpose? Is there not a risk, Minister, that these provisions will create a more permissive killing regime under the guise of being incidental killing? When you have issued a licence to kill or an authority to kill species incidentally, have you not therefore created a circumstance where there will be a more laissez faire attitude to the possible impact of activities that have been undertaken in the process of development?

To give an example that specifically could relate to the Mount Messenger bypass example, say one is building a road and comes across a large mature native tree species where, because of bat surveys, one is highly aware there are likely to be endangered native bats living, but you’re talking about a very large tree. If there was not an authority to kill but a requirement to meet the obligations of the Wildlife Act and protect those species, then greater effort may be taken to relocate them. Whether that relocation would be successful or not is another question, because obviously where a species has been relocated and, in the process of that relocation, one of them dies, who is going to be prosecuting somebody for that? It is not credible that that’s going to be happening, but it is credible that when presented with the challenge of a large tree that has bats at the top of it in a nice woody rotten knot, if the operator has a licence to kill, they may as well just knock that tree down and incidentally kill those species. They will not take that extra effort.

Under a direct interpretation of the Act, through working with the Department of Conservation, a given developer could take all necessary steps or reasonable steps to protect species. But is there not a risk, Minister, that you’re creating a more permissive regime for developers to be more reckless in their efforts or less concerned in their efforts to protect wildlife, because they’ve already got a ticket that says they can incidentally kill wildlife and they get to say when they’ve done that? Realistically, Minister, who is going to be watching every single day of work on a given project to make sure that the killing that was incidental was legitimately incidental? How will the monitoring and how will the actual observation be taken to make sure that it is appropriate incidental killing?

Another question I’ve got regarding new section 53A is: why is there a difference between a foreseen but undesired killing of a native species and a foreseen but supposedly desired killing? I sort of infer that what is being got at here is the difference between direct and indirect intention, but both have the same effect and neither is protective. So, in meeting the requirement of any legitimate activity that is incidental and the purpose of the Act to protect wildlife, why is there a difference between foreseen but undesired killing and foreseen but supposedly desired killing?

How is the authority to kill wildlife incidentally consistent with the purpose of the Act? That’s another part of that same question of how does it not weaken the protective purpose of the Act. How is the authority to kill wildlife incidentally consistent with the purpose of the Act? The reason I ask that question, Minister, is because I think it will help take us on the mental journey through the deeper question of what the purpose of the Wildlife Act is and how these changes in new section 53A fundamentally, in my proposition, undermine that purpose in a way that ties the legislation in knots, frankly, and makes a real mess for the Department of Conservation to deal with and the courts to deal with in the future.

I actually think that this legislation has the potential to create a lot more headaches for the courts and for the department. Thank you. I hope you can answer some of those questions.

Thank you, Madam Chair. It feels like I’m not unlike a hobbit that I’m on an intrepid journey this evening. In response to the comments by my colleague Mr Abel and the question that was posed: “How does it not weaken the protective purpose of the Act?”, we all understand that the key purpose of the Wildlife Act is to protect wildlife. But without the ability to grant authorisations, Te Papa Atawhai—the Department of Conservation—will not be able to properly regulate and ensure the protection of wildlife.

There is a question posed or offered regarding the international obligations. I’ll just refer to the Convention on Biological Diversity; our view is that the actions that are being taken—the provisions of this bill, as proposed—are consistent with that set of international obligations because we are able to clarify and reinforce already established conservation processes and balance protection and human wildlife interactions.

There was a comment about how these provisions are muddying the waters. Members opposite offered those comments—albeit that my view is that the only waters that are being muddied at the moment are the convection and the complications that the members are introducing to this discussion in the committee of the whole House. Government can disagree with High Court rulings. I mean, talk about the 2003 foreshore and seabed matter as an example. But killing must relate to protecting wildlife under certain conditions. Pragmatism in these matters is very, very important. The court’s view that killing must relate to protecting and there’s got to be a very clear nexus does not reinforce the status quo and the understanding prior to that court decision, whereby the director-general enabled incidental killings under certain conditions. This is what is proposed to be restored under the proposed legislation.

There was a question posed around the options that were considered. Yes, we did consider appeal for the decision, but that would take a very long time. To be fair, we’ve got to get on with a lot of mahi, whether or not that’s in the environmental space, in the infrastructure space, or in the housing space that has been well trumpeted by the previous Government that also used a number of wildlife authorisations with the understanding that we’re trying to restore now. Amazing.

There’s a question about Te Tiriti o Waitangi. Well, we think this is a valid exercise of kāwanatanga and we’re quite comfortable in saying that and stating that. We expect many iwi have also used wildlife authorisations in their housing developments and their logistics developments at Ruakura, or Waikato-Tainui out there in Kirikiriroa—city of the future. So, no doubt, there are many iwi who have endorsed the understanding that we are now seeking to restore by way of these proposed amendments.

Monitoring—that was another issue that was raised. Usually, especially if you had the chance to actually read conditions of these types of authorisations and permits, there is monitoring expected. I certainly would have expected that those who have quite deep and meaningful comments this evening on these authorisations have actually taken the time to read the conditions of these types of authorisations so that their questions are informed.

Thank you, Madam Chair. I note that it’s interesting that Government members are already seeking calls, and I hope that they will be—

Joseph Mooney: It’s been 40 minutes.

Hon RACHEL BROOKING: Oh, we’ve been here for 40 minutes, we hear, when we’re in an all-stages urgency—

CHAIRPERSON (Barbara Kuriger): Can I just get the Clerk to stop the clock. At the moment, the 40-minute call is—this is a bill under urgency and there has been no select committee, so we’re not focusing on the 40 minutes. We’re focusing on the questions from the members to the Minister.

Hon RACHEL BROOKING: Thank you, Madam Chair, for that reassurance.

I asked the Minister of Conservation a lot of questions about the meanings of words and how it is that these different clauses in front of us, on these two pages, are consistent in how they relate to each other, and he did not answer that question. I heard him say one thing that was useful, and that was when he said that there is a hierarchy when you have the avoid, minimise, and mitigate, and that is supposed to be a hierarchy. That’s useful to have on the Hansard.

I also heard him say in answer to, I think, Rachel Boyack that the decisions have to be made both about species, he said, and individual wildlife. I do want the Minister to clarify that statement, because what this bill talks about is populations of wildlife, rather than species. Populations of wildlife are a subset of the species, so I presume the Minister’s point was just that there is an “and” in new section 53B(2) in clause 4, between paragraph (a) and paragraph (b)—“(a) populations of wildlife; and (b) individual wildlife.”—and the statement about species wasn’t to denigrate from the word “populations”.

Now, just in that last contribution, the Minister said something about there’s got to be a nexus with the protection of wildlife for this, and I’m not asking any questions about anything outside of these clauses and how they work together. No big-picture questions here; just: how do these clauses interact?

It was interesting that the Acting Prime Minister in the House in question time today said in the first answer about this bill that it was to do with the culling of wildlife, and that makes some sense. If you look at it on the face of it and you think that section 53 in the Wildlife Act says that you can consent to killing, but then there’s a big “but” added in these new clauses and we’ve got to look at the overall effect—but, clearly, we’ve then heard other Ministers say that, no, a whole lot of this is to enable a whole lot of other activity, as well, and that it’s not just about culling.

The Minister has just said, “Oh well, everybody should read the conditions of these wildlife permits.” Well, it would be useful if he could take us through where he thinks the thresholds are and if he can go back to saying why new section 53A(1) says, “Without limiting section 53,”. Does section 53 itself need to change, because it’s not changed with this bill.

But where I was getting to before, before I lost my call, was subsection (5) of new section 53B in clause 4—

Joseph Mooney: It’s only 314 words.

Hon RACHEL BROOKING: —and that was that “In granting the authority, the Director-General is not required to be satisfied”—

Joseph Mooney: We’re debating 314 words—314 words.

Hon RACHEL BROOKING: I’m sorry, Madam Chair, but I can’t concentrate at the moment on this because I am so angry that members on the Government backbenches are heckling with things I can’t hear when we do not have a select committee process. I am being criticised for going through the words in these clauses, which are very important, and I would ask that—

Joseph Mooney: It’s 314 words.

CHAIRPERSON (Barbara Kuriger): No, we’ll have some respect, please. Interjections are fine. I haven’t felt yet that it was a barrage, but there has been a bit of talking going on. But I do understand your question, so continue.

Hon RACHEL BROOKING: Thank you, Madam Chair, and it’s particularly egregious when we do not have a select committee stage that I am being heckled for asking about the words when the Minister is not answering about these exact words.

The Minister is giving us political answers, so the question here is that we’ve got at paragraph (b) in subsection (5) that “the Director-General is not required to be satisfied— … (b) that each individual act of killing, viewed in isolation, would be consistent with the protection of wildlife.” So how does that paragraph (b) relate back to subsection (4) where it says that the director-general must be satisfied that the overall effect would be consistent with the protection of individual wildlife; how do those two subsections about the individual act of killing work together?

Thank you, Madam Chair. To the Minister of Conservation, I’m really interested in your previous comments about how the management plans around effects on wildlife are actually designed to mitigate the effects and reduce the risk of harm, and that it appears that my learned colleagues in the Opposition tonight haven’t adequately reflected on all of the protections that are in place. So when we consider that authority may be granted to kill wildlife incidentally, while that sounds extreme, dramatic, and really, really awful, in fact the existing management plans that are already issued for projects like Mount Messenger clarify that is certainly not the intention of the ecology, the scientific, the wildlife protection professionals who work on New Zealand’s major infrastructure projects—who left school, went and studied a science degree, love nature, probably spend most of their weekends in the outdoors looking for little creatures on their walks, and go to work five, six, or seven days a week to protect wildlife on the projects they work on.

So, Minister, I’m really interested, do you see that the amendments about authorisations are really intended to kill more creatures or are they in fact intended to give effect to and support the fantastic planning that already occurs? Because when I read the species-specific measures to avoid or minimise effects on bats, for example, on the Mount Messenger project, it says quite clearly that when removing vegetation, it could potentially support bat roosts, and further detail is required before this happens. The primary mechanism to avoid any harm to bats is, firstly, listening to them to see if they’re in the tree, and visual inspections and ensure any trees that represent potential bat-roosting habitats are only felled if it can be confirmed they’re not occupied by bats. Now, that’s here in black and white in their consents that were applied for in 2017. So if having gone through all of these measures and having turned up to work, wanting to save every single creature on the project because that’s what you truly believe in while you work for a business that is building infrastructure, how is it that this bill is going to do harm, Minister?

The way I understand it, and I’d appreciate if you confirm it, it’s simply confirming that best practice when it comes to managing the risks to New Zealand’s precious indigenous biodiversity are simply to be accepted and recognised as lawful, rather than it being some catastrophe that is highly unlikely and certainly not intended to befall our threatened species.

Rachel Brooking—no, sorry, Rachel Boyack. Apologies.

Thank you, Madam Chair—it’s not the first time, that’s for sure—

CHAIRPERSON (Barbara Kuriger): No, it’s not the first time; that’s why I’ve apologised.

RACHEL BOYACK: —and I’m sure it won’t be the last! I just want to make an initial comment, I guess in frustration, that this isn’t going through a select committee process, and so a lot of the questions I’m asking tonight I would normally have the opportunity to ask officials and particularly the Parliamentary Counsel Office. The reason we’re going to dig into the detail and actually come back to the Minister of Conservation when the statements have been so broad and, quite frankly, vague is that we’re not getting the answers, and, actually, the concerns we’re raising—

Simon Court: You’re asking the wrong questions, that’s why.

RACHEL BOYACK: I am—I’ll get there, don’t you worry. I’ve got plenty of questions—plenty of questions. There is a genuine issue to be resolved, and we accept that, but actually getting this right is important, because otherwise we’re going to end up back in court—like, that’s my prediction.

Simon Court: Are you going to support the bill because it’s practical?

RACHEL BOYACK: So—if you’ve been listening to our speeches, you’ll hear that we’re not, because the process is so poor, Mr Court. So, again, I do think it’s—yeah—

Shanan Halbert: Point of order. I think you know what I’m going to say here, that, in fairness, we are here under urgency. We haven’t had the opportunity to take this through select committee. There is a barrage of shouting coming down from the other end, and I’d just ask that our members have the right to put our case forward, to put questions to the Minister, that he answers them in detail fairly, and that we treat this process with respect.

CHAIRPERSON (Barbara Kuriger): Yep, and I appreciate that point of order. I didn’t hear a barrage, but there definitely was a two-way transaction going on. So perhaps we’ll give Rachel Boyack the opportunity to ask some clear and concise questions around what the member wants from the Minister.

RACHEL BOYACK: They’re very detailed questions. Thank you, Madam Chair. So the first part I’m going to talk to is new section 53B(2), inserted by clause 4. It says here, “The authority is to be treated as consistent with the protection of wildlife if, in granting it, the Director-General is satisfied that its overall effect would be consistent with the protection of—(a) populations of wildlife; and (b) individual wildlife.” The piece I’m interested in is the words “overall effect”. What do they mean in the context of the Act? What are we talking about? What is the definition here? I’m asking specifically; I want to know: what is the definition here of “overall effect”?

“In determining whether the overall effect of the authority would be consistent with the protection of populations of wildlife”—so I’ve gone on to 53B(3)—“the Director-General must have regard to—(a) any potential adverse effects of the lawful activity on—(i) populations of wildlife”—and it goes on with a series of criteria. The piece that I think, when you’re looking at these two pieces together, makes it really confusing is when you look at 53B(5) and it says, “In granting the authority, the Director-General is not required to be satisfied—(a) that the lawful activity is itself consistent with the protection of wildlife; or (b) that each individual act of killing, viewed in isolation, would be consistent with the protection of wildlife.”

My question is: how does the wording of “lawful activity” interact with the wording of “overall effect”? I understand the definition of “lawful activity”; we’re talking about the building of a road. My understanding around the overall effect is the overall effect of the activity—that’s my question. It’s very confusing for the reader here to understand how 53B(2) and (3) interact with 53B(5), and it’s not unreasonable for us to be asking for a detailed response, because this is complex law. It’s been drafted in a way that is really challenging to understand how these clauses interact with each other, particularly when you then consider the existing section 53.

When I sit in select committee, I often ask questions back again and again to actually understand how this works as a lawmaker. That is our responsibility; we are here to make law. So I am asking for the Minister to actually not talk in platitudes or not talk in vague statements, to actually dig into the detail of the definitions of these clauses and how they interact with each other, because it needs to be on the Hansard.

Look, I genuinely agree there was a problem to be solved. The High Court ruling placed a problem on the Department of Conservation—absolutely accept that; we’re not disagreeing, but we have real concerns around the drafting of this bill and the unintended consequences that are going to appear for the department, for the director-general, and for the people trying to actually apply it. Very genuine, confused set of members over here, including people with significant legal skills in this area.

So, you know, we are actually asking for some detailed responses from the Minister, because at the moment all we’re hearing is answers that are actually adding to the confusion as well. Thank you, Madam Chair.

Look, I actually think that this is not only an error of law but it’s an error of logic. I actually am in part inspired to ask this question off the back of what Simon Court asked. Let us move ourselves to a completely different area of law to address the logic problem: health and safety law, where the purpose is to protect human life. It’s entirely set up to make sure people are safe from harm and from death in the workplace. Now, I might be an employer in an industry that is a high-risk industry, and perhaps historically, statistically, it is foreseeable, because there have been deaths in the past, that there will be deaths in the future in my industry.

Now, there is a reasonable likelihood that there will be deaths, and it is foreseeable that there will be deaths—that someone will be injured or killed in my workplace. Can I then get a permit to say that I’ve got permission to kill people? Of course I can’t. But that is the logic—that is the logic of this legislation. I must take all reasonable steps to protect people from harm and from death, and the Wildlife Act is set up to be protective of our wildlife from harm and from death, and the exact same principle applies that I cannot logically get given a permit to kill, a licence to kill, and whilst I’m not in any way suggesting that human life is not more valuable than the life of other species, I’m suggesting that the logic of creating a system where you are licensing someone to break the Wildlife Act, which has a purpose of protecting wildlife, doesn’t stack up.

So my question for the Minister is in new section 53A(1). There’s a very interesting term: “otherwise lawful activity”. It’s an unusual term, and I asked a couple of lawyers how many other pieces of legislation they’d seen this term in—“otherwise lawful activity”—because it seems to be at the crux of the illogic of this legislation. Can the Minister provide examples of otherwise lawful activities where incidental killings might occur and might be permissible and might have to be authorised? How will “not directly intended” be determined, in the language of new section 53A(2): “killing of wildlife is incidental if it is not directly intended.”—how will “not directly intended” be determined?—“but is unavoidable and foreseeable as a consequence of carrying out the lawful activity.” How are unavoidable consequences defined and assessed in practice? In respect of new section 53A(2), does unavoidable mean that it was in the way of a digger? Who is monitoring and assessing this—this goes to a question I asked earlier, which wasn’t answered.

Finally, how are “foreseeable consequences” defined and assessed in practice? These are serious questions because how are you practically going to implement this? How are you practically going to implement this, Minister? You have laws and rules in place that say you have to take every reasonable step to protect wildlife. We know that you’re going to build a road through a certain area, and it’s going to have a consequence of unintended killing. But as the very lawyers who took the case to the court pointed out, who’s going to prosecute somebody for an unintended killing when every reasonable step was taken? I want you to speak, Minister, to the logic of our health and safety law and how it would be ludicrous to suggest—ludicrous to suggest—that any employer would be given a licence to incidentally, inadvertently kill a worker. That would be preposterous and revolting, frankly.

Thank you, Madam Chair, and thank you for that variety of questions that were posed to me over the last 15 minutes or so. In terms of the overall effect question, it means that the authorisation itself must be consistent with wildlife protection, not the activity itself—e.g., earthworks does not have to be consistent with wildlife protection, but the authority to kill wildlife killed during earthworks does need to be consistent.

There was a question and an observation that this will just open up for carte blanche killing of wildlife: fake news, false reporting; a question that has no logic and an observation that has no logic at all. Because this proposed change will neither increase the bar nor lower the bar in terms of the authorisation of permits. The focus is on making sure that there is an authorised pathway to kill protected wildlife, incidental to the mahi that is being undertaken, whether or not that’s environmental-focused mahi or economic-focused mahi. The focus is on protecting populations and individual wildlife as far as practicable. Now, the Department of Conservation has taken this approach for many, many years. It’s about best practice. It’s about making lawful the strategies we already use to avoid, minimise, and mitigate harm for a protected species through these authorisations and the detailed conditions that they impose.

The practical implementation question—this has been done for decades. And we will ensure that this pragmatic practice will continue by way of the wording set out here.

There were comments about the health and safety law and some of the logic that goes with it. Well, that needs its own review. I won’t be comparing the health and safety laws with what we’re doing here. But just to reinforce that I won’t be curved by illogical questions. This provides an appropriate, safe, authorised pathway for those that have those authorisations and permits to undertake incidental killing. Now, I know that there’s a real effort to complicate this matter in the late hours of the evening, but we’re very clear and I’m happy to answer.

Thank you, Madam Chair, and thank you to the Minister of Conservation for his response but also to other members who have spoken on this. Now, again, nothing we’re saying here is trying to be illogical, because of the fact that we would have teased a lot of this out during select committee, but we are still trying to figure out the exact scope of this particular bill and its implications. One of the things that the Minister is referring to and talking about is that this has been done for a number of years. Well, there is no regulatory impact statement, so we have no idea of any of the risks.

What is the risk? That would appear in a regulatory impact statement. I’m looking at the departmental disclosure statement, at page 6. The Minister was like, “This has been done for many years.”, but the Department of Conservation (DOC) themselves said the “information is limited and insufficient to inform a full impact [statement]”. It’s very nice to say that it’s been done for many years, but we actually don’t have any data for it, according to the departmental disclosure statement. My question to the Minister then is: if the Minister is convinced that it’s exactly the same or that the bar has not been raised or lowered, as the Minister put it, can the Minister at least tell this committee how many authorities then has DOC granted so far? If it’s been going on for a while, how many has there been?

Then if we’re looking at a particular case that has been taken here and if we’re looking at the way that we’re reading the current Wildlife Act’s section 68AB—particularly around mens rea and strict liability—that is something that is considered retrospective. But what we’re seeing here in new section 53A is prospective, so I wanted to check with the Minister then about the prospectivity and retrospectivity of this bill. Does that mean that the authority we’re seeing here can only be granted prospectively, as opposed to also being granted retrospectively, which is how section 68AB is interpreted? That’s my second question.

My third question is on the specific terminology that has been used, which is “lawful activity”. Now, we’ve heard examples that the Minister has been using in terms of lawful activities, such as infrastructure and building roads, etc., but surely anything that is within the law would be considered a lawful activity. Now, I did have a look at the Wildlife Act. The term “lawful activity” doesn’t appear once—or at least I couldn’t find it in that particular Act—so this part is the first time we’re seeing this term being used without any clear definition of the term. For me, if I’m thinking broadly in terms of lawful activity, I think of things like fishing being a lawful activity. If that is considered a lawful activity, we know that, for example, under complete protection, there are nine marine fish species, which include manta rays, basking sharks, honu turtles, and spotted black groupers. Would that then mean that any fishing vessels or any fishing companies who are conducting lawful activities within fishing are able to apply for authority for incidental bycatch? Is that a consideration? Although we’ve been trying to lead everyone to think down one track of that lawful activity in terms of infrastructure and construction, I would like to know what the scope of lawful activity is.

Those are my three questions so far, and I know that a lot of people will have other questions as well.

Thank you, Madam Chair. I have a number of questions, and I would like to start on clause 4, looking at this question of “unintended”. I have not yet heard from the Minister of Conservation how, if something is unavoidable and foreseeable, it can possibly not be done with intention, because if a person of sound mind knows what might happen and knows that the consequences are unavoidable, then, surely, they intended that. That’s my first point, and it’s probably a bit of a philosophical question about who determines what “unintended” means. Does it just come down to somebody saying, “Oh, I didn’t mean that to happen.”, or have you got something slightly more robust in mind, for the poor director-general or the person that this is delegated to, to make that critical judgment?

We all understand that generally desirable activities—it might be housing, it might be a transport project, it might be renewable energy; for heaven’s sake, even putting in a cycleway in Evans Bay needed some lizards to be moved, and maybe not every one kept their tails, or worse. But where is the balance struck? For example, is it sufficient to talk about the population that is living in that rohe, or are you saying that if the population in other places is protected, it doesn’t matter what happens in this particular project? Those populations can be the same species but quite genetically distinct. That would particularly be the case where, for some species of gecko, you can only tell which one it is by what location they’re from, because they look so similar.

There was a very good example given of a consent for a roading project that looked at a whole load of protective things and how there had to be a check on the trees as to whether there were bats or not. That is completely separate from the Wildlife Act and the amendments here. That would be done under the Resource Management Act. What assurance could the Minister give me that conditions may not just be imposed but that, surely, conditions should be imposed, that they need to be imposed? If there is an unavoidable issue, maybe you can’t avoid it, but then you’ve created this logical contradiction.

I’d also like to know how the Minister would like to address the suggestion, made earlier, that a previous conservation Minister the Hon Eugenie Sage—I think I heard Grant McCallum assert that she would be supporting this legislation. Well, I don’t think anything is further from the truth. How would the Minister address Eugenie Sage’s point that this amendment creates a much weaker regime?

Finally, how much longer does he think that the delegated Department of Conservation staff will be taking to grant authority under these amendments?

Thank you, Mr Chair. It’s wonderful to see you this evening. There was a question seeking clarification around the relationship between the protection for populations and species of wildlife. As many of us know, the bill provides provisions to help protect both wildlife populations—e.g., a local population and the species as a whole. The bill provides that “in making decisions to authorise incidental killing, the Director-General is to have regard to—any potential adverse effects of the lawful activity on the survival of populations of wildlife and the viability of the species to which that wildlife belongs”. Under new section 53C(1), the director-general may impose conditions “to address [the] potential … effects of the lawful activity on populations of wildlife or the viability of the species to which that wildlife belongs”.

There was another question in relation to the numbers. I anticipate there will be thousands of wildlife authorisations or permits that have been issued over many, many years, both by Te Papa Atawhai - Department of Conservation and also predecessor organisations. Right now, over 500 active permissions have a section 53 component that could be affected by the court’s decisions and about a hundred active authorisations explicitly contain a kill component in the authority that is likely impacted by the court decision. Of course, as you know, we are seeking to reset, by way of this proposed bill, the universal understanding of the authorisation process. Of course, of the over 500 permissions that are active, nearly half of these authorities relate either directly or indirectly to developments in infrastructure. There are nearly 400 applications pending where section 53 may form part or all of the relevant legislation under which the permit authority could be granted to the applicant.

In relation to the lawful activity matter, there was a question around what that actually means. That is the actual activity that gives rise to the need for an authority—for example, pest control or housing development. The authority doesn’t permit that lawful activity; it permits the interactions with wildlife by humans that result from those activities over there and, therefore, sets conditions that ensure wildlife is protected while these are undertaken. There was a comment in relation to retrospectivity by my colleague over in the Green Party, and, certainly, the intention of the proposed bill is to ensure that those permits that were issued prior to the court decision are validated.

Finally, another colleague from the Green Party talked about “unavoidable and foreseeable” and how any of that could be unintended. In some instances, the harming, let’s say, of small animals, like invertebrates, that may be impossible to detect but are, in fact, protected wildlife is supported by way of these authorisations, and the people or the organisations that are undertaking that activity, which could harm in a foreseeable and unavoidable way but an unintended way—those authorisations and those permits are ultimately the focus of this mahi that we’re undertaking this evening.

Finally, there was a comment again by our colleague from the Green Party around conditions; these conditions are generally imposed in Wildlife Act authorisations. What we’re doing in this instance, of course, folks, is ensuring that we make targeted changes to the Act to restore the understanding prior to the court decision, and ensuring that there is a balance in protecting wildlife populations and protecting and enabling the world that our mokopuna will live in.

Kia orana, Mr Chair, and thank you. This is the first opportunity that I’ve had to make a contribution, by way of questions, as part of urgency, actually. This is a bill that’s more than 70 years old, and one thinks that it often stands the test of time. But what we have in front of us, of course, are some changes. I have to say that, like other members of the House, given that this has been progressed through urgency, I haven’t had a lot of time to actually digest this. Obviously, we would have had a select committee process. That’s why we’ll certainly try and make the most of that.

I have a question for the Minister of Conservation that does relate to new section 53B(4) on page 3 of the bill. As I was reading through this, I was somewhat actually inspired by Mr Abel’s tabled amendment to new section 53C, so I won’t refer to that.

Steve Abel: I don’t mind.

TANGI UTIKERE: I’ll refer to my own. Oh, I’m sure the member doesn’t mind. But I want to just ask the Minister around a potential change to the very first sentence of that clause, and it relates to basically changing the word “may”—which, as we know, has a little bit of looseness to it or flexibility to it—to “must”. This section specifically relates to the ability of the director-general to make a decision based on a number of different facts, but the point of difference with this section is around the reasonable steps that would be taken by the holder of any authority that is granted to, effectively, either “avoid, mitigate, or minimise any adverse effects of the lawful activity”. There’s no issue here with the lawful activity being undertaken.

However, there is a suggestion that if the director-general was required, by way of inserting the phrase “must consider” those—“avoid, minimise, and mitigate the adverse effects of the lawful activity”—it relates specifically to the steps that would be considered reasonable. Now, I accept, and the Minister may agree with me, that “reasonable” in itself might perhaps provide a little bit of broad flexibility around that, but this relates specifically to the holder. Whether or not that was followed through would be another matter and may fall actually within the ambit of new section 53C, but this is about what specifically the director-general is required to be satisfied around and whether or not that needs to be strengthened.

There is a tabled amendment in my name. I apologise; it’s handwritten. Well, actually, no, I don’t apologise, because, under urgency, we have not had an opportunity to digest this. I have tabled a handwritten amendment that basically seeks to amend new section 53B(4) to replace the word “may” with the word “must”. My question for the Minister is—well, first of all, whether he is supportive of that, to give effect to the “avoid, minimise, and mitigate the adverse effects”. But also whether he sees that if he was supportive of that—and I don’t think it is—that it would be inconsistent with other parts of the bill, because that’s certainly not my sort of read on it.

Thank you, Mr Chair. I want to go back to, as Steve Able outlined, the crux of this bill. Sorry, I have asked this question before; I’m asking it one more time because the Minister of Conservation didn’t answer it. He did talk around it, but he didn’t get to the crux of this, and I would like this on the record, in terms of clarification.

Now, the genesis of the problematic position that everyone is in was the High Court ruling in March this year. What the judge specifically ruled on, which I have somewhere here—“Justice McHerron highlighted that section 53 permits can only be issued if their purpose is to protect wildlife. In a previous case, the Court of Appeal suggested one such purpose could be [for example] culling of some individuals to prevent the spread of disease to a wider population.” In that sense, you’re authorising the killing of something, which then has a direct benefit to that species. The direct nexus was at the heart of the High Court ruling, and so the judge in question then said that that particular permit under section 53 was unlawful because, ultimately, there was no protective purpose there. It was the killing of a species for a road, and that was not in line with the principal purpose of the Act. Now, the Minister has said that the whole point of this piece of legislation that we’re debating tonight under urgency is to revert to decisions that were made prior to that March 2025 ruling, which would then allow, for example, for a species—in the Mount Messenger case, 46 species—that was incidentally killed as a result of a road that was being built to be then offset or mitigated by saying that there was an overall benefit or effect that was positive to that species.

What I want to just get—really, yes or no—clarity on, Minister, is in new section 53B, where 53B(1) says, “To avoid doubt, the Director-General may grant an authority referred to in section 53A only if it is consistent with the protection of wildlife.” I take the point that the Minister has made—that there is still a protection to wildlife requirement in this legislation—but it’s not the direct nexus, is it? The wording that we’ve been trying to prosecute, on this side of the Chamber—“overall effect”—is directly contradicting the direct nexus requirement of the High Court ruling. Is that the case? That is my primary question for the Minister. Can the Minister just clarify that including “overall effect” removes the requirement for there to be a direct benefit to that species? Essentially, what this legislation is doing is allowing for species that are protected to be killed in order for a road to be built. Let’s just be very clear that that is what this piece of legislation will allow. That is my first question.

My second question that I have for the Minister is the relationship between section 53A and section 71, which I understand is unchanged in the bill. Section 53A, as I mentioned before, was meant to be that direct benefit to a species—the killing of a species can only be authorised if there’s a direct benefit. Section 71 was, basically, where certain things could be—or certain projects could be—allowed. I’m just looking for the legislative statement that I had—here we go—so: “Section 71 provides for authorisations to be issued where activities affecting wildlife are carried out under named legislation specified in Schedule 9 of the Act.” For specific exemptions, Schedule 9 is, basically, an exemptions list—so roading was an exemption. The Mount Messenger case was lawful because of section 71.

My question to the Minister is: does section 53A actually substitute section 71? In effect, if the director-general can then authorise the killing of various species because a road needs to be built, which is, essentially, what section 71 did, what is the difference between the two? Can the Minister clarify what the difference and purpose of these two sections are and how they relate to one another?

Thank you, Mr Chair. I’ve got a quite specific and, hopefully, relatively quick question.

CHAIRPERSON (Greg O’Connor): Specific and quick is probably what we’re looking for at this time of night.

STEVE ABEL: Good, yeah. What would help too, Mr Chair—I think we haven’t had particularly substantive answers from the Minister, and some of the many questions we’ve asked have not really been answered, and they’re often pretty specific.

CHAIRPERSON (Greg O’Connor): Can I assure the members that the Minister’s answers will be taken into account when we’re sitting at closed mics as well.

STEVE ABEL: I appreciate that.

CHAIRPERSON (Greg O’Connor): The universe is balanced.

STEVE ABEL: Thank you, Mr Chair. My colleague Dr Lawrence Xu-Nan asked a question about where a fisher may catch or capture one of the nine species that are protected in the Wildlife Act. My question is: do those fishers have authority now to incidentally, inadvertently kill any of those protected nine species?

It relates to a broader question. New section 53B, inserted by clause 4, says that authority may be granted. Who must get an authority to incidentally kill wildlife? Does every fisher in New Zealand need to get an authority on the potential that they will incidentally kill—not intentionally; with best endeavours try not to—wildlife? For that to be a legal killing, do they have to have one of these newly stipulated authorities and to what extent does that go?

When Mr Grant McCallum jumps off his cellphone and thinks about growing his hemp crop this year and he goes to plough his field, does he have to get an authority for the foreseeable likelihood that he will kill a few skinks in the process? That may be a minor example, but it’s a serious question. Who has to get an authority?

If I go to mow my lawn in Green Bay with the foreseeable potential that I may impact a protected species, I presume I don’t have to get an authority to do it. But where are the bounds of these authorities meant to be? There you go, Mr Chair—I got it in in under 2½ minutes.

Thank you, Mr Chair. In one of the Minister’s previous answers—not the last one but, I think, the one before—he talked about the phrase “overall effect” and said that it related to the activity. I cannot see how that interpretation can work with this legislation. Going back to my first point, it seems that we have section 53 saying, “Do what you like.” Then we’re saying, without limiting section 53, “We’ve got some quite tight controls here about incidental killings, so you’ve got to be protecting wildlife.” But how we’re interpreting protecting wildlife has to do with an overall effect. One of my questions to the Minister earlier that I haven’t had an answer to is: is that the right interpretation of how these clauses are working? The overall effect is a diminishment of what we might normally think is the protection of wildlife. That’s a very important question.

But then, even if it is a diminishment—if I’m right in my reading that the overall effect is a diminishment—there is still a lot in these clauses that keeps going on about the protection of wildlife for individuals, so how could anybody get an authority to do something that wasn’t the example of culling that we just had from my colleague Priyanca Radhakrishnan. That question relates to statements—the Minister also needed, he said, best practical options, or what’s most reasonable where pragmatic. These clauses do not read like a rebalancing of the environment that we see everywhere else from this Government. It does look like there are some quite tough steps here to go through. Am I correct that even with the overall effect being a watering down of protection, it will still be difficult to get through these tests and they will, in fact, not enable all of the things that Minister Shane Jones was talking about? There’s a couple of questions in that piece.

Then, we’ve just heard from Steve Abel about mowing his lawn, and he’s worried about whether there will be incidental killings, and so we might say the same with a bird flying into a window. Maybe it’s foreseeable that if you have a window near some trees, a bird will fly into it, so do we need to be looking at this bill in terms of section 63 of the Wildlife Act, which relates to offences. That says, “No person may, without lawful authority … hunt or kill”. That’s another question: has that offences provision been considered when it still looks like it will be difficult to get lawful permission under new sections 53A, B, and C?

Another separate type of question goes to section 71 of the Wildlife Act, and this is how Mt Messenger was made lawful because the two Ministers signed it off under section 71. We’ve talked a lot about that Act; it’s an old Act. Section 71 is actually under “Miscellaneous” provisions, and is the “Saving of other Acts”. It’s a horrible clause to go through, with all of its exceptions. It says, “Except where this Act otherwise provides, nothing in this Act shall derogate from any provision of any of the Acts specified in Schedule 9:”—we know that many of the Acts in Schedule 9 no longer exist, but there is one about roads that does—“provided that, except with the prior consent of the Minister of Conservation and the Minister charged with the administration of the Act under which the act or authority is performed or exercised, and subject to such conditions as those Minister may jointly impose, no person shall be entitled to do any act or exercise any authority under [the] Act in respect of any wildlife”, etc.

That’s a very convoluted clause. It has been, though, an avenue for the Department of Conservation to make some of these permissions and authorities lawful. Has the Minister considered amending section 71, and/or has he considered amending the schedule there with all of those outdated Acts? Would that be another way to fix the problem? Does it need to be done in conjunction with these additions to section 53, and how does existing 53 interact with these new sections 53A, B, and C, and section 71?

Just mindful of some of the questions that we’ve answered that haven’t been heard by the Opposition, I’ll just repeat again that concept of overall effect. What that means, in new section 53B(2), as mentioned earlier, is that the authorisation itself must be consistent with the wildlife protection, not the activity itself. Building earthworks, as an example, does not have to be consistent with wildlife protection, but the authority to kill wildlife during earthworks does need to be consistent.

In relation to the defence, there is a defence set out in the Act around accidental harm where things are unforeseeable and unintended, not when the action is intended. That space—the action is unintended, foreseeable, and unavoidable—is exactly at the heart of what we’re trying to deal with right now. As mentioned earlier, again in response to a question about the High Court ruling, the court, effectively, sent out a decision that signalled that animals may only be killed in the process of trying to protect them. This decision limits the ability to lawfully grant authority to incidentally kill protected wildlife under the Act. Authority holders, as we’ve mentioned, are concerned because they have no assurance that they would not be prosecuted if their projects kill any protected wildlife, despite having an authorisation under section 53 of the Act. That may lead them to stop doing things, including environmental things like some of the mahi around TB-free, which I’ve mentioned several times today, along with infrastructure, power line maintenance, pest control, and other things.

The court has made a decision that’s, effectively, put at risk hundreds of authorisations that are contributing to the environmental and economic wellbeing of the country. We have said no. We do not agree with that. We are going to validate those authorisations. We’re going to make sure that those people who hold the authorisations are assured and have confidence that they can go out and do the mahi that they need to do, and sometimes, incidentally, per some conditions in some permits, we might find that some protected wildlife is killed.

There was a question around how section 53 and section 71 interact. New section 53A does not act as a substitute for section 71. Section 71 still applies to activities undertaken under specific identified Acts set out in Schedule 9 of the Wildlife Act. These Acts are a relatively limited set of enactments covering limited types of activities, and I understand roads might be part of that sometimes. Section 53 is not available when section 71 applies. This was clarified in the Mount Messenger decision.

Finally, in relation to the interaction between new sections 53B(4) and 53B(5)(b)—how they interact—they work independently of each other. New section 53B(4) requires the director-general to be satisfied that the authorisation holder “will take reasonable steps … to avoid, minimise, and mitigate … adverse effects of the lawful activity on individual wildlife.” New section 53B(5)(b)—like Bananas in Pyjamas; B1 and B2—ensures that “In granting the [decision], the Director-General is not required to be satisfied … (b) that each individual act of killing, viewed in isolation, would be consistent with the protection of wildlife.” Why we’ve done this is that it responds directly to the Environmental Law Initiative decision, the Mount Messenger decision, which stated that, in that case, the authority would be lawful only if each individual active killing, viewed in isolation, would be consistent with that protection.

We’ve been very clear in forming responses—careful and cautious responses—so the bevy of questions has been answered, and we are ready to move forward.

I move, That debate on this question now close.

Thank you, Mr Chair. One of the Minister of Conservation’s answers there—before he directed his backbench to take a closure motion—was that the Minister considers he is being clear when he gives bold political answers and talks about “pyjamas” when, in fact, we are asking about very specific words. He is saying that I should read and listen to him and that the overall effect relates to the activity. He used the example of earthworks, but this phrase is talking about the authority. Surely, when you go back up to new section 53A, inserted by clause 4, the authority is the one that you’re getting that grants the killing of the wildlife. It’s not the overall activity that you might need a whole set of permissions for; it’s this little bit about—well, not little; it might be very big and important—the incidental killing and having a permission to do that. That permission is, in my reading, called “the authority” in these different sections.

The way that that section reads—I’m looking at new section 53B(2)—is: “The authority is to be treated as consistent with the protection of wildlife if… satisfied that its overall effect”. Surely, the overall effect is relating to the authority that says that you can kill some animals.

The Minister might tell me that I’m wrong, but it makes no sense what he is referring to in terms of the activity with how these sentences work. It’s very precise. I don’t want any political answers about this, so can he point to what it is that he appears to be saying is wrong with my question? If I am correct and that “overall effect” relates to the authority, the permission to kill the wildlife, then can he answer my question, which is: is that phrase “overall effect” a diminishment of the preceding test, which is the protection of wildlife?

Thank you, Mr Chair. I am really frustrated, alongside my colleagues, because, despite the Minister of Conservation’s insistence that he’s providing clear responses, there are not clear responses coming out. There are considerable issues with the entirety of this bill that we would like the opportunity to fully examine—because of urgency, because of the inability to go to select committee—so I appreciate getting to actually ask some of them.

What I want to ask the Minister about specifically is the authorisation itself of the director-general. The Minister actually brought up an example himself, where he talked about there being some invertebrates that are present in, say, a development site that are hard to detect.

Now, what we’re really concerned about with this bill is, essentially, the moving of the responsibility from the developer or the person or the company who is actually undertaking the activity and has that obligation in terms of a risk assessment—an assessment of ecological impacts; that kind of thing—on to the Director-General of Conservation. Now, what does this actually look like in practicality? Again, the Minister is saying this is practical. This is impractical—completely impractical—for a department that is already facing a $48 million cut from last Budget; we’re yet to hear what’s coming next for this next Budget. I have complete respect for the work that the Department of Conservation (DOC) does, and I understand the complexity of what is involved with actual ecological assessments which go into developments or any kind of project of magnitude—which, again, is what we’re trying to talk about, although my colleague has raised some very clear questions about the actual scope of this bill, for which we know nothing about. What we’re trying to understand here is: why move this onus on to the director-general, which will actually cause more bureaucracy?

What we’re proposing in one of our tabled amendments—I’m just finding the number here; it’s under my colleague Steve Abel’s name, and it’s regarding new section 53B, inserted by clause 4. We would propose, in section 53B(2), deleting the words “in granting it, the Director-General is satisfied that”, and then, under that, deleting subsections 53B(3), 53B(4), and 53B(5). Now, that would actually remove the ability for the director-general to have the responsibility for these discretionary decisions that they would need to make to grant the authority to actually kill the wildlife.

Now, the Minister’s example of invertebrates is a great one, because it’s basically admitting that, suddenly, it’s DOC’s role—not the developer’s, not the individual’s, not the company’s—to understand the entirety of the impact and what species might be impacted, and it’s on them to find those hard-to-find invertebrates, presumably, and actually put those in the granted authority to grant that permission. Now, this seems like a very roundabout and completely unnecessary way to purportedly solve this problem, when, actually, we’ll just be putting more bureaucracy and more demands on the actual ecological assessments which would be required for the director-general to make accurate decisions under this bill. That’s what we want, right? This isn’t for fun. This is about actual development. This is about actual situations with real wildlife that need actual protection. We’re not going to go through the statistics with that, but I’d be really keen to hear from the Minister if he would consider changing this bill and letting it go to select committee so that we can actually nut out, and understand, the implications of this, particularly for our own public agencies.

Just to catch up on a couple of the questions that were asked earlier today—could a fishing vessel apply for a permit for incidentally killing protected species such as through wildlife? This is the fishing question. Incidental bycatch during fishing is not an offence under the Wildlife Act, provided it is reported, so it does not require a wildlife authorisation.

Is a permit needed for every situation where wildlife may be killed? The examples used were lawn mowing and the growing of hemp in Maungaturoto. Now, if you know that protected wildlife is likely to be killed as a result of the activity, yes. Conditions can then be applied to ensure that any impacts of such an activity does not inflict lasting harm on the persistence of species.

There was a suggestion around an amendment that was tabled, in relation to the director-general’s responsibilities; we will not be agreeing to that amendment. We are really focused on targeted changes required in response to the High Court’s decision that would continue to leave authorisation holders uncertain of the validity of their permits, potentially delaying a wide range of activities, including those which deliver improved conservation outcomes. The director-general has been responsible for issuing these authorisations for many, many years.

I move, That debate on this question now close.

I do thank the Minister of Conservation for some of the answers that he gave. That was around clarifying that the direct nexus bit was no longer required—I get that—and also that new section 53A does not replace section 71.

I do have a question around that. I know my colleague Rachel Brooking asked whether there was any consideration around then expanding Schedule 9 so that, in effect, if section 71 provides for authorisations that are issued—so, in this case, if a road needs to be built and there is an effect on species there—incidental killing of species there—that can be offset or mitigated by addressing the population effect and so on and so forth? Section 71 already allows for that, but it’s limited by the exemptions or the Acts that are listed in Schedule 9. Was there consideration around expanding the legislation, or the Acts that are named in Schedule 9, so that the specific projects that the Minister is concerned about—I think there were 85 that were previously authorised and about 300 that are currently in train. The Minister has outlined that his worry or his concern is that those will be halted because of the High Court ruling. Now, has he considered expanding Schedule 9 so that the Acts that are related to those 85 or 300 projects could actually be included there and there could be a section 71 authorisation for that, rather than the mess that we’re seeing outlined here?

I just want to get to that as well, because I do have sympathy for what my colleagues have said. Lan Pham, Rachel Brooking, and Rachel Boyack have pointed out that the wording in new sections 53A, 53B, and 53C is unclear. We’ve asked a few times questions around the wording specifically of “overall effect” because it is important. It could relate to the activity, or it could relate to the species. We just want to know which one is the relevant one in this legislation.

I’ll ask it a slightly different way as well, because I had to go to the legislative statement to figure out what that section was referring to and what it actually meant. What new section 53B says as it’s drafted in this legislation is that “Authority under section 53 to kill wildlife incidentally: consistency with protection of wildlife”. It goes on to talk about the fact that, “To avoid doubt, the Director-General may grant an authority referred to in section 53A only if it is consistent with the protection of wildlife.” I think that does relate to the overall population, rather than the direct benefit or the direct nexus that the High Court ruling was talking about. But, in new section 53B(3), “In determining whether the overall effect of the authority would be consistent with the protection of populations of wildlife, the Director-General must have regard to—(a) any potential adverse effects of the lawful activity on—(b) populations of wildlife that the Director-General is satisfied may be affected by the lawful activity;”. What does that mean? It’s a bunch of words, and it seems incredibly confusing.

If you go to the legislative statement, it says that the point of new section 53B is to restore and clarify—so to restore the allowed activity to what the Department of Conservation was doing before the High Court ruling. It, basically, specifies when an authorisation will be consistent with the protection of wildlife and what the director-general must have regard to—“This includes whether the overall effect of the authorisation and its conditions would address the potential adverse effect of the activity on affected wildlife populations”. This is why we’re confused about the wording in the letter of the law—in the legislation as it’s drafted. Where does it actually say that? So, “adverse effect of the activity on affected wildlife populations and the viability of those species”—whether the species could become more threatened or become extinct as a result of the authorisation or the permit that is being given. Is that what is actually meant? If so and if we had had a select committee process, we could have actually worked through how the wording in this legislation would actually get us to the point of what it’s meant to say.

There’s a question about why we didn’t change section 71 and Schedule 9. That would be overkill. This would add complexity and increase the risk of unintended consequences because section 71 covers a very specific set of legislation. Section 71 decisions, unlike section 53 decisions, were not put at risk following the High Court decision. As a result, I’ve not proposed changes to section 71, but we are very determined to channel and facilitate changes to section 53. Thank you, Mr Chair.

I move, That debate on this question now close.

Thank you, Mr Chair. I have a couple of very specific questions for the Minister of Conservation on new sections 53A and 53B, inserted by clause 4. I just have a question around the interaction between the granting of authority and section 68AB of the primary Act, which, the Minister has mentioned, is where the defence currently lies. The defence is currently that the defendant did not intend to commit the offence. I just want to get clarification from the Minister that by granting authority, it then constitutes an automatic defence under section 68AB because of the fact that the authority itself would mean that it is incidental and unavoidable and foreseeable, which would imply that the defendant did not intend to commit an offence. I’m just checking if it is the correct interpretation that the authority constitutes a defence under new section 68AB—section 68AB(3)(a) specifically.

My next question is about new section 53A(2), where the killing is “unavoidable and foreseeable”. I’m assuming “unavoidable and foreseeable” covers both immediate and long term, but clarification would be appreciated.

Now, moving on to new section 53B(4), it would be good if the Minister could respond—I don’t think we have heard from the Minister, and, if we have, I apologise. Would the Minister consider Tangi Utikere’s tabled amendment on changing “may” to “must”? I think that is an important clarification, because if the director-general “may” be satisfied, it also implies the director-general doesn’t need to be satisfied at all, because there is no total requirement for that to happen. Clarification around that would be great as well.

My final question—this is question number four—is also on new section 53B(4). It talks about reasonable steps. Can I check with the Minister whether the reasonable steps here are that the holder of authority will take reasonable steps? Is that reasonable on the basis of an objective person or reasonable on the basis of a subjective person or that particular individual? Those are my four questions. Thank you.

Thank you. I just have a quick question going back to this “overall effect” and the Minister saying it has to do with the activity, can the Minister consider the difference between the use of the word “authority” and the use of the phrase “lawful activity”? It seems to me that those two are used quite purposefully throughout these new sections to distinguish between the permission, the authority to do the killing of the animals, of the wildlife, because that’s what it refers to in clause 4, inserting new section 53A—“Authority may be granted”—and section 53 of the Act says “The Director-General may … authorise”, and then we’re talking about the “lawful activity”.

At new section 53A(2), the killing of wildlife is incidental if it’s a consequence of carrying out a lawful activity. The lawful activity is the earthworks or whatever it is that you’re doing, but the authority is this permission to incidentally kill the wildlife. That is why it just makes no sense to me that the Minister is saying that this “overall effect” is linked to the word “authority”. “The authority is to be treated as consistent if, in granting it, the Director-General is satisfied that its overall effect”—“its” being the authority—“would be consistent with the protection of [the wildlife]”, whereas then we look down to new section 53A(3), “In determining whether the overall effect of the authority would be consistent”, we look at “(a) any potential adverse effects of the lawful activity” on populations and viability.” Surely the word “authority” is different to “lawful activity”, and the word “authority” is what is connected to “overall effect”.

Given that, I go back to my question that I’ve asked—I know we’re not supposed to repeat questions—and I would really like the Minister to turn his mind to this and to whether, if I am right, the “overall effect” is related to the “authority” to kill the wildlife, or to whether that “overall effect”—the scheme of this amendment—is that the use of the phrase “overall effect” is a diminishment of what otherwise we would consider to be the protection of wildlife, and the protection of wildlife comes just before that. To avoid doubt, we’ve got to be consistent with the protection of wildlife. Oh, but hang on—hang on. We only treat it as consistent with the protection of wildlife if we’re satisfied that the overall effect is these things.

It does seem to be that we’re setting up a cascade of different words and phrases and tests. Because of that, the answers from the Minister to me make no sense, and I’d like him to reconsider and come back to this point whilst we’re still in the committee stage on Part 1. It may be that he will want to make an amendment if what he thinks he’s saying does not match with my reading of these words.

Thank you, Mr Chair. I’m going to bang through a few questions about new section 53B, in clause 4. I am anxious, as I look over to the other side of the room, to close Part 1. I’ve got a number of substantive questions still. New section 53B: what analysis has been undertaken on the effects of permitting the killing of wildlife compared to the status quo where all reasonable steps must be taken to avoid wildlife being killed?

What I’m asking here, Minister, is: if we retreat to the simple principle that it is about taking all reasonable steps rather than requiring these authorities to be issued, what analysis has been taken of that? Relating to that is new section 53B, in clause 4, and my question is: why is this discretionary power required when the mens rea test in section 68AB of the principal Act already provides that developers need to take all reasonable steps to ensure wildlife is not killed? Obviously, my colleague has already spoken about the burden of work for the director-general, who will be making these discretionary decisions, and it’s a huge amount of work for the Department of Conservation. So why do we need to have this discretionary power when there’s already that mens rea test of reasonable steps?

I have another question on new section 53B. How will the director-general assess the overall effect on wildlife populations? How will the director-general determine that the overall effect would be consistent with the protection of populations of wildlife and individual wildlife? This question has not been answered, and it is a significant question. New section 53B(3)(a)(ii) mentions the viability of populations. At what level is this considered? Is it the local level, Minister? Is it the national level? Is it the regional level? At what level is that viability to be evaluated, and how will the director-general determine the viability of a species? As my colleague Rachel Brooking pointed out, this is where there’s a lot of layers of complexity in the interpretation and the responsibility put on the director-general.

In anxiety that they may be looking at wrapping this up—and I don’t mean to be jumping ahead prematurely—I want to mention an amendment we have to proposed new section 53C, “Conditions that may be imposed on authority under section 53 to kill wildlife incidentally”, which is in clause 4. We believe that conditions must be imposed. Considering the significant nature of the activity, which is killing wildlife, it requires the setting of conditions. That is critical. This provision would be, essentially, worthless without the requirement being mandatory. Under new section 53C, it must be mandatory for the director-general to put in place conditions, and, what is more, what types of conditions would be included?

Is, for example, the Government aware that, in the Mount Messenger case, there were no condition requirements put on Waka Kotahi to try to avoid killing most of the listed species? It simply permitted the killing. Is the Government aware that those conditions were not put in place? It was just simply a licence to kill, which is why the case was brought. We do not want that circumstance, surely, Minister. If you are genuinely committed to the principle of this being about protecting wildlife and, surely, if you’re going to issue one of these authorities, there must be mandatory conditions put in place.

I just have some brief responses: we’ve discussed the defence for accidental harm from unintentional and unforeseeable harm. If you follow an authority that you have, it’s not an offence.

We’re starting to stray, in my view, into feral space based on speculation and conjecture. We are here to make a targeted change, as a result of a High Court decision that has completely undermined the universally understood position around the issuance and upholding of authorisations under the Wildlife Act. We are neither increasing nor decreasing the bar for the issuing of these authorisations.

The comment that the director-general will not able to, or will be overwhelmed in being able to, consider these matters and the viability of a species—I think the director-general is very competent at determining the viability of a species by using the tools and the knowledge available to her, both within the Department of Conservation - Te Papa Atawhai and outside. She looks after, on behalf of the entire country, 30 percent of the land and a little bit of marine space and is well versed in issues around the viability of species in issuing literally hundreds of authorisations under the Wildlife Act.

Finally, on the interaction between authority and lawful activity, the overall effect of the authority is consistent with protecting wildlife when the authority provides for avoiding, minimising, and mitigating harm that is incidental. To know that the authority provides for this, it is relevant to understand the harm that may result from the activity that would cause harm in the first place. I’ve described what “lawful activity” and “overall effect” mean on nearly five occasions now. Thank you.

I move, That debate on this question now close.

The question is that the Minister’s tabled amendment to clause 4, subsection (2) of new section 53C be agreed to.

The question is that Steve Abel’s tabled amendments to clause 4, new section 53B be agreed to.

The question is that Tangi Utikere’s tabled amendment to clause 4, new section 53B, to replace “may” with “must” in subsection (4), be agreed to.

The question is that the Hon Priyanca Radhakrishnan’s tabled amendment to clause 4, to replace new section 53A and delete new section 53B, be agreed to.

The question is that Steve Abel’s tabled amendment to clause 4, new section 53C, to replace “may” with “must” in subsection (1), be agreed to.

The time has come for me to leave the Chair. The House will resume at 9 a.m. Good night.

Sitting suspended from midnight to 9 a.m. (Thursday)