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Digest No. 1603

Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill 2008

Date of Introduction: 12 February 2008
Portfolio: Biosecurity
Select Committee: As at 12 February, 1st Reading not held.
Published: 12 February 2008Prepared by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 471-9626 (Ext. 9626)F: (04) 471-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The aim of this Bill is to amend the Biosecurity Act 1993 (the Biosecurity Act) and the Hazardous Substances and New Organisms Act 1996 (the HSNO Act) to clarify the relationship between these two Acts.

Background

National Beekeepers’ Association v MAF

The 2007 Court of Appeal decision, National Beekeepers' Association of New Zealand v Chief Executive of the Ministry of Agriculture and Forestry [2007] NZCA 556 (the Beekeepers' Case) concerned the importation of honey from Australia in 2006.

For many years prior to this, New Zealand had prohibited the importation of honey and other bee products from Australia. This prohibition was lifted in August 2006 when the Director-General of the Ministry of Agriculture and Forests (MAF) issued an Import Health Standard (IHS) under the Biosecurity Act which allowed the importation of such honey.

The importation of Australian honey in December 2006 was opposed by the National Beekeepers' Association which brought an application for judicial review in the High Court, contending that the imported honey contained a potentially harmful bacterium Paenibacillus alvei (P. alvei) not previously identified as being present in New Zealand. The risks posed by P. alvei and other potentially harmful bacteria had been assessed by MAF before the IHS was issued.

The key issue in the case was whether P. alvei was a "new organism" which could not lawfully be brought into New Zealand without an approval under the HSNO Act.

In the High Court, Simon France J rejected the Beekeepers' Association's submission that approval under HSNO was required, accepting the submission by MAF that an approval under HSNO was not required for new organisms which were merely "passenger" organisms associated with the importation of other goods. The Judge said that approval under HSNO was only necessary where the new organism was itself the intended import. Any risks associated with passenger organisms were to be dealt by MAF under the Biosecurity Act alone. The issuing of the IHS by MAF was therefore lawful.

The Beekeepers' Association appealed the matter to the Court of Appeal which allowed the appeal after a careful examination of the two statutes, concluding that " ... honey or other bee products from Australia containing P. alvei may not be imported without both biosecurity clearance under the Biosecurity Act 1993 and an approval granted for new organisms under the Hazardous Substances and New Organisms Act 1996" [1]   .

National Beekeepers' Association of New Zealand v Chief Executive of the Ministry of Agriculture and Forestry [2007] NZCA 556 (the Beekeepers' Case) therefore " ... clarified the scope of the two Acts in its finding that all new organisms imported into New Zealand must have prior approval under the HSNO Act" [2]   .

The clarification of policy following the Beekeepers' case

The Bill amends both the Biosecurity Act and the HSNO Act to " ... make it clear that:

  • risks from all non-genetically modified organisms imported incidentally in association with imported goods will be managed by MAF [the Ministry of Agriculture and Forestry] under the Biosecurity Act;

  • risks from non-genetically modified new organisms imported other than incidentally in association with imported goods, and risks from all genetically modified new organisms, will be managed by ERMA [Environmental Risk Management Authority] under the HSNO Act" [3]   .

Additional amendments are made to both Acts to ensure that the legislation " ... operates as intended" [4]   .

Main Provisions

Amendments to Biosecurity Act 1993

Incidentally imported new organism

The Bill inserts a definition of "incidentally imported new organism" into the Biosecurity Act. The new definition incorporates the definition of the term to be placed in the Hazardous Substances and New Organisms Act 1996 by Clause 10(2) of this Bill. Under this definition an “incidentally imported new organism" means:

  • a new organism that is imported in or on goods, but is not an essential or constituent part of those goods;

  • is not imported in or on the goods with the intention of concealing the presence of the new organism;

  • is not a genetically modified organism (Part 1, Clause 4, amending Section 2(1) of the Biosecurity Act 1993 by inserting a new definition, that of "incidentally imported new organism"; cf. Part 2, Clause 10(2) of the Bill, amending Section 2(1) of the HSNO Act by inserting a new definition, that of "incidentally imported new organism").

Import Health Standard to applies to incidentally imported new organism

The Bill provides that Import Health Standard applies to goods the importation of which involves, or might involve, an incidentally imported new organism (Part 1, Clause 5 amending Section 22 of the Biosecurity Act).

Biosecurity clearance may be given for goods which may contain incidentally imported new organism.

The Bill creates an exception to the prohibition placed on an inspector from giving a biosecurity clearance for goods that are or contain an organism specified in Schedule 2 of the Biosecurity Act. An inspector may give a biosecurity clearance for goods the importation of which involves or might involve an incidentally imported new organism. (part 1, Clause 6, amending Section 28 of the Biosecurity Act).

Validation of previous Import Health Standards

The Bill provides that all Import Health Standards issued before the commencement of this Bill are valid and effectual as if the Bill had come into force on 29 July 1998, but only if, and so far as, the invalidity of an import health standard arises because it applies to goods the importation of which involves or might involve an incidentally imported new organism. The Bill also specifically validates the Import Health Standard for the Importation into New Zealand of Specified Bee Products from Australia, dated 2 August 2006, which was the subject of the judgement of the Court of Appeal in National Beekeepers Association of New Zealand v Chief Executive of Ministry of Agriculture and Forestry [2007] NZCA 556 and which was quashed by order of the Court in National Beekeepers Association of New Zealand v Chief Executive of Ministry of Agriculture and Forestry [2008] NZCA 1. The relevant biosecurity clearances are also validated (Part 1, Clauses 7 and 8 of the Bill).

Amendments to Hazardous Substances and New Organisms Act 1996

Incidentally imported new organism

The Bill inserts a definition of "incidentally imported new organism" into the HSNO Act. Under this definition an “incidentally imported new organism" means a new organism that is imported in or on goods, but is not an essential or constituent part of those goods, is not imported in or on the goods with the intention of concealing the presence of the new organism, or is not a genetically modified organism. This new definition is also inserted into the Biosecurity Act (see above) (Part 2, Clause 10(2) of the Bill, amending Section 2(1) of the HSNO Act by inserting a new definition, that of "incidentally imported new organism"; cf. Clause 4 of the Bill).

Prohibition of import, manufacture, development, field testing, or release

The HSNO Act generally provides that no hazardous substance can be imported, or manufactured (Section 25(1)(a)) and no new organism can be imported, developed, field tested, or released (Section 25(1)(b)) otherwise than in accordance with an approval issued under the HSNO Act.

The Bill provides exemptions for the Ministry of Agriculture and Forestry, and any departments recognised by the Minister responsible for that Ministry, so that they may undertake the specified activities in relation to an incidentally imported new organism for the purpose of identifying, managing, or eradicating that new organism (Part 2, Clause 12, amending Section 25 of the HSNO Act by inserting new subsections (1A) and (1B)).

Copyright: © NZ Parliamentary Library, 2008
Except for educational purposes permitted under the Copyright Act 1994, no part of this document may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, other than by Members of Parliament in the course of their official duties, without the consent of the Parliamentary Librarian, Parliament Buildings, Wellington, New Zealand.This document may also be available through commercial online services and may be viewed and reproduced in accordance with the conditions applicable to those services.

  1. National Beekeepers' Association of New Zealand v Chief Executive of the Ministry of Agriculture and Forestry [2007] NZCA 556, paragraphs 1 - 7, and 67.   [back]
  2. Biosecurity and Hazardous Substances and New Organisms Legislation Amendment Bill, 2008 No 198-1, Explanatory note, General policy statement, p. 4.   [back]
  3. Ibid, p. 4.   [back]
  4. Ibid.   [back]