The Biosecurity Law Reform Bill was introduced to Parliament on 10 December 2010. It has been referred to the Primary Production select committee, with submissions due by Thursday 10 February 2011.
National policy direction
The amendments contain a new requirement for the responsible Minister to make a national policy direction. The purpose of that document will be to ensure that pest management activities provide the best use of available resources for New Zealand's best interests and align with one another, when necessary, to contribute to the achievement of:
the development of effective and efficient instruments and measures that prevent, reduce, or eliminate the adverse effects of harmful organisms on economic wellbeing, the environment, human health, enjoyment of the natural environment, and the relationship between Maori, their culture, and their traditions and their ancestral lands, waters, sites, waahi tapu, and taonga; and
the appropriate distribution of costs associated with instruments and measures.
It will be a requirement of the national policy direction that it contain directions on the setting of "good neighbour rules" in regional pest management plans.
Good Neighbour Rules
The Bill introduces the concept of a "good neighbour rule", which means a rule which:
(a) applies to an occupier of land and to a pest or pest agent that is present on the land; and
(b) seeks to manage the spread of a pest that would cause costs to occupiers of adjacent land; and
(c) is identified in a regional pest management plan as a good neighbour rule; and
(d) complies with the directions in the national policy direction relating to the setting of good neighbour rules.
The significance of a rule being a "good neighbour rule" is that it binds the Crown. Currently, the Crown is not required to abide by regional pest management strategies, which can result in pests spilling over onto land which neighbours Crown land, and reduce the effectiveness of pest management in a region.
Assignment of Responsibility for Response Decision
The Bill contains a new provision which enables the responsible Minister to assign, to a regional council or a government department, responsibility for a decision on the appropriate response to an issue relating to a harmful organism or pathway. If the Minister assigns responsibility, then he may also specify a time within which the decision must be made, and the council or department must comply with that timeframe. The process for the Minister to assign responsibility is to be set out in regulations, which have not yet been promulgated. One would hope that those regulations will provide for consultation with the regional council or department affected, prior to assigning decision-making responsibilities and compulsory timeframes.
Regional Council Leadership Role
The Bill contains a new provision stating that regional councils provides leadership in activities that prevent, reduce, or eliminate adverse effects from harmful organisms that are established in New Zealand, in their regions, in the following ways:
(a) promoting the optimal contribution of pest management to relevant community and national strategies;
(b) facilitating communication and co-operation between those involved in pest management to enhance effectiveness, efficiency, and equity of programmes;
(c) promoting co-ordination of pest management between regions.
Plans instead of Strategies
Instead of "national pest management strategies" and "regional pest management strategies", there will now be "national pest management plans", "national pathway management plans", "regional pest management plans" and "regional pathway management plans".
The requirements and contents of a national or regional pest management plan are very similar to the current requirements for a national or regional pest management strategy, although the new legislation states those requirements in much greater detail than the current legislation does.
National or regional pathway management plans are a new development. In the Bill, "pathway" means "movement of goods or craft out of, into, or through New Zealand, which has the potential to spread harmful organisms. A "pathway management plan" is meant to prevent or manage the spread of harmful organisms. So, central government and regional councils, through national and regional pathway management plans, are supposed to prevent or manage the spread of harmful organisms by managing the movement of goods or craft out of, into, or through New Zealand. That is a significant new responsibility, especially for regional councils.
The new legislation provides for the making of proposals for national or regional pest management plans and national or regional pathway management plans. Those proposals may be made by the Minister (for national plans), the regional council (for regional plans) or any other person. This is similar to the current provisions for a proposal to be made.
The process for transforming a proposal into a plan, under the new legislation, is quite different to the current process. Currently, the Minister or regional council is required to publicly notify a proposal for a strategy, provided certain criteria are met, so that submissions may be made by any person. The current legislation requires an inquiry to be held into a proposal which has been notified, and that power of inquiry may be delegated to a hearings commissioner.
Under the new provisions contained in the Bill, public notification of a proposal and the receipt of submissions are an option which may be taken, but only if the Minister or regional council is not satisfied that, during the development of the proposal, there was sufficient consultation with persons other than those with whom consultation is mandatory. Even in those circumstances, there is no requirement for an independent board of inquiry to hear the submissions, although that is an option.
So, in relation to both national pest and pathway management plans and regional pest and pathway management plans, the new legislation removes the current requirements to afford persons who may be affected by a plan an opportunity to lodge a submission and be heard. The new legislation requires that such persons be consulted, but consultation is generally a lesser form of public participation than is the ability to lodge a submission.