Reprint as at 1 July 2016

Coat of Arms of New Zealand

Biosecurity Act 1993

Public Act
 
1993 No 95
Date of assent
 
26 August 1993
Commencement
 
see section 1(2)
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry for Primary Industries.

Contents

Title
1Short Title and commencement
2Interpretation
2AInterpretation of import
2BInterpretation of specified in relation to organisms
3Application of Act to syndromes of uncertain origin
4Application of Act in territorial sea
5Act binds the Crown
6Land may include parts of boundary roads
7Relationship with other enactments
7ARelationship with Resource Management Act 1991
7BRelationship with Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
7CPublic notice of decision to exempt action
7DRegulations may continue exemption
7EBorder information supplied using JBMS must be supplied in approved form and manner
7FDuty to use JBMS to supply border information to Ministry
8Responsibilities of responsible Minister
9Powers of responsible Minister
10Functions of Ministers in relation to national plans
11Other powers of Ministers
12Responsible Minister may require information
12ADirector-General provides overall leadership
12BRegional council provides leadership regionally
13Powers of regional councils
14Powers of territorial authorities
15Transfer of powers, etc, by local authorities
16Purpose of Part 3
16AGeneral duty relating to importation
16BDuty of importers to comply with import health standards
16CDuty of importers not to abandon goods
17Notice of craft’s intended arrival in New Zealand
17AInward cargo report
18Arrival of craft in New Zealand
19Persons in charge of certain craft to obey directions of inspector or authorised person
20Import health permits [Repealed]
21Criteria for issue of import health permits [Repealed]
22Meaning of import health standard
22AProcess for independent review panel to be established [Repealed]
23From draft to recommendation
24Review
24AIssue
24BAmendment, revocation, suspension, and reinstatement
24CPublication
24DCompliance
24EMeaning of craft risk management standard
24FFrom draft to recommendation
24GIssue
24HAmendment, revocation, suspension, and reinstatement
24IPublication
24JCompliance
24KCraft risk management plans
25Goods to be cleared for entry into New Zealand
26Clearances by inspectors
27Requirements for clearances
27APost-clearance conditions on clearances
28Restrictions on giving clearances
28ADealing with suspected new organism
28BBiosecurity clearance for certain new organisms and qualifying organisms
29Restricted organisms to be contained
30Uncleared imports
30AProcessing unaccompanied goods
31Boarding of craft
32Powers relating to craft
33Risk goods on board craft
34Disembarkation
35Duties of persons in biosecurity control areas
35ADuty of persons to remain in biosecurity control areas
36Movement of risk goods
37Approval of ports as places of first arrival
37AApproval of arrival of craft at port not approved as place of first arrival
37BSuspension of approval
37CPort operators
37DDirector-General to consult chief executives
38Importers’ records
39Approval and cancellation of approval of transitional facilities and containment facilities
40Approval and cancellation of approval of facility operators
40ASuspension of facility approval
40BNotice requirements
40CEffect of suspension and extension
40DSuspension of operator approval
40ENotice requirements
40FEffect of suspension and extension
41Designation of quarantine area
41ADefinitions
41BPurpose of sections 41C to 41E
41CInterim collection of border information
41DRequirement by or under this Act to supply border information is complied with if information is supplied to Customs or other agency
41EInterim access to border information
41FExpiry of sections 41B to 41E and agreements made under section 41E
41GAAApplication of sections 41G to 41I
41GCollection of border information
41HRequirement by or under this Act to supply border information is complied with if information is supplied to Customs or other agency
41IMinistry may access border information
42Purpose of Part 4
43Duty to provide information
44General duty to inform
45Notifiable organisms
46Duty to report notifiable organisms
47Imported risk goods [Repealed]
48Power to require information
49Use of information
50Identification systems
51Duties relating to identification of organisms
52Communication of pest or unwanted organism
53Duties of owners of organisms
54Purpose of this Part
55Responsible Minister may assign responsibility for decisions
56Responsible Minister provides leadership through national policy direction
57Process for making national policy direction
58Process for amending or revoking and replacing national policy direction
59Definitions for sections 60 to 67
60Relationship of rules and plan with law
61First step: plan initiated by proposal
62Second step: satisfaction on requirements
63Third step: satisfaction with consultation or requirement of more consultation
64Fourth step: approval of preparation of plan and decision on management agency
65Fifth step: satisfaction on contents of plan and requirements
66Making of plan
67Exemptions from rules
68Definitions for sections 69 to 78
69Relationship of rules with law
70First step: plan initiated by proposal
71Second step: satisfaction on requirements
72Third step: satisfaction with consultation or requirement of more consultation
73Fourth step: approval of preparation of plan and decision on management agency
74Fifth step: satisfaction on contents of plan and requirements
75Sixth step: decision on plan
76Application to Environment Court about plan
77Making of plan
78Exemptions from rules
79Definitions for sections 80 to 87
80Relationship of rules and plan with laws
81First step: plan initiated by proposal
82Second step: satisfaction on requirements
83Third step: satisfaction with consultation or requirement of more consultation
84Fourth step: approval of preparation of plan and decision on management agency
85Fifth step: satisfaction on contents of plan and requirements
86Making of plan
87Exemptions from rules
88Definitions for sections 89 to 98
89Relationship of rules with law
90First step: plan initiated by proposal
91Second step: satisfaction on requirements
92Third step: satisfaction with consultation or requirement of more consultation
93Fourth step: approval of preparation of plan and decision on management agency
94Fifth step: satisfaction on contents of plan and requirements
95Sixth step: decision on plan
96Application to Environment Court about plan
97Making of plan
98Exemptions from rules
99Definitions for sections 100 to 100G
100Management agencies
100APowers in Part 6
100BOperational plans
100CDuration of plans
100DReview of plans
100EReview of plans after national policy direction approved, amended, or revoked and replaced
100FApplication to Environment Court if regional plan not reviewed
100GMinor changes to plans
100HCouncils’ powers and duties
100ICompensation
100JDefinitions for sections 100K to 100S
100KLimitation on expenditure
100LLevy orders
100MEffect of order
100NContents of order
100OTrust accounts for levy money
100PCompliance audits for levy
100QPower of auditors to require production of documents
100RManagement agency to account for levy
100SOrders are confirmable instruments
100TRegional pest management plan or regional pathway management plan
100UNational pest management plan or national pathway management plan
100VRegional council may declare small-scale management programme
100WExercise of powers under programme
100XPurpose of Part 5A
100YDefinitions for Part 5A
100ZGovernment/industry agreement for readiness or response
100ZAIndustry organisation
100ZBReadiness or response levy orders
100ZCEffect of order
100ZDContents of order
100ZETrust accounts for levy money
100ZFCompliance audits for levy
100ZGPower of auditors to require production of documents
100ZHOrders are confirmable instruments
101Chief technical officers
102Deputy chief technical officers
103Inspectors, authorised persons, and accredited persons
104Authorised persons to comply with instructions
105Delegation to authorised persons
105ACall in of powers or functions
105BAppointment of auditors
105CAudits
105DAuditors’ general duties
105EAuditors’ powers
105FAuditors’ duties relating to power of entry
106Power to require assistance
107Power to detain for purpose of checking for uncleared risk goods
107APower to detain for purpose of checking for unauthorised goods
107BPower to detain for public health or law enforcement purposes
108Power to search people
109Power of inspection
110Warrant to inspect dwellinghouse, marae, etc
111Entry in respect of offences
112Duties on exercising power of entry
113Power to record information
114General powers
114AApplication of articles or substances from aircraft
115Use of dogs and devices
116Power to seize and dispose of unauthorised goods
117Expenses and compensation
117ASeizure and detention of goods or documents as evidence for other enactments
118Power to seize evidence
119Power to seize abandoned goods
120Power to intercept risk goods
121Power to examine organisms
121APower to apply article or substance to place
121BProhibition or control of certain tests
122Power to give directions
123Power to vaccinate, etc
124Power to destroy organism on non-payment of fees
125Transitional facility direction
126Inspection of and intervention in transitional facilities and containment facilities
127Destruction of imported organisms
128Power to act on default
129Liens
130Declaration of restricted place
131Declaration of controlled area
132Road blocks, cordons, checkpoints, etc
133Duration of place and area declarations
134Enforcement of area controls
135Options for cost recovery
136Failure to pay
137Levies
138Orders are confirmable instruments
139Restrictions on levies
140Contents of levy order
140AALevies for recovering border processing costs
140ABContents of border processing levy order
140ATrust accounts for levy money payable to Director-General
141Effect of levy order
141AOrders to provide for records to be kept for Director-General’s levy
141BCompliance audits for Director-General’s levy
141CPurpose of compliance audits for Director-General’s levy
141DPower of auditors to require production of statements and records
142Resolution of disputes
142AEstablishment
142BInformation from local authorities
142CAccess, use, or disclosure
142DPerson may require Director-General not to access, use, or disclose information
142EVoluntary provision of information
142FArrangement for system
142GEffect of use of system
142HRetention and use of information for risk profiling
142IDisclosure of personal information in New Zealand
142JDisclosure of personal information outside New Zealand
142KDisclosure of personal information outside New Zealand: urgent action required
142LDefinitions for sections 142M to 142S
142MIncorporation in biosecurity documents
142NRequirement to consult on proposal to incorporate material
142OEffect of amendments to, or replacement of, material incorporated
142PProof of material incorporated
142QEffect of expiry of material incorporated
142RAccess to material incorporated
142SEffect of other enactments
143Purpose of Part 7
144Declaration of biosecurity emergency
145Emergency powers
146Duration of emergency
147House of Representatives must be informed
148Revocation by House of Representatives of biosecurity emergency [Repealed]
149Compensation [Repealed]
150Biosecurity emergency regulations
151Emergency regulations are confirmable instruments
152Provisional control action
153Compensation following investigation of pests [Repealed]
154Scope
154AContent
154BService
154CCompliance
154DChange or cancellation
154EAppeal to District Court
154FAppeal to High Court, Court of Appeal, or Supreme Court
154GEffect of appeal
154HPecuniary penalty order
154ILiability of principals and employers
154JAmount
154KOther orders instead of or in addition to pecuniary penalty order
154LConcurrent criminal proceedings and pecuniary penalty proceedings
154MSection 154M offence
154NSection 154N offences
154NASection 154NA offence relating to failure to update information supplied in advance
154OSection 154O offences
155Proof of permission, etc
156Liability of principals and agents
157Penalties
158Fines to be paid to management agency instituting prosecution [Repealed]
159Proceedings for infringement offences other than border infringement offences
159AAccelerated infringement notice procedure for border infringement offences
160Who gets payments of fines, fees, and pecuniary penalties
160AProcedure for certain declaration offences [Repealed]
161Evidence in proceedings
162Time for filing charging document for certain offences
162AADefinitions for this Part
162ABApplication of Act in EEZ
162ACApplication of Act to fish and mammals taken in EEZ
162ADInterpretation
162AEPurpose of Part 3
162AFNotice of intended arrival of craft in EEZ
162AGArrival of craft in EEZ
162AHPersons in charge of certain craft to obey directions of inspector or authorised person
162AIBoarding of craft
162AJPowers relating to craft
162AKRisk goods on board craft
162ALDuty to provide information
162AMGeneral duty to inform
162ANDuty to report notifiable organisms
162AOSecond step: satisfaction on requirements
162APFourth step: approval of preparation of plan and decision on management agency
162AQSecond step: satisfaction on requirements
162ARFourth step: approval of preparation of plan and decision on management agency
162ASDefinitions for Part 5A
162ATDeclaration of controlled area
162AUDeclaration of biosecurity emergency
162AVEmergency powers
162AWProvisional control action
162AXGeneral provisions as to regulations
162ACompensation
163Protection of inspectors and others
164Liability for goods
164AProcedure for giving directions or making requirements
164BApplication of section 164A
164CRegistration of unwanted organisms
164DConsultation about regulations
165Regulations
165ARegulations relating to definition of Ministry-related border management function in section 41A(1)
166General provisions as to regulations
167Repeals and revocations
168Enactments amended
169Savings of Animals Act 1967 for limited administrative purposes [Repealed]
170Savings of Plants Act 1970 for limited administrative purposes
171Savings of Apiaries Act 1969 for limited administrative purposes [Repealed]
172Transition of emergency proclamations
173Transitional continuance of regulations
174Transitional provision concerning inspectors, etc
175Transition of quarantine appointments
176Transition of import permits and exemptions [Repealed]
177Transition of notices under section 13A of Animals Act 1967
178Transitional control of brucellosis and tuberculosis in cattle and tuberculosis in deer
179Transitional control of agricultural pests [Expired]
180Compensation for certain slaughtered animals [Expired]
181Transitional control of plant pests [Expired]
182Transitional control of bee diseases [Expired]
183Transitional control of hydatids [Expired]
184Designated ports of entry
184ADesignated as approved, or approved, ports
185Expiration of sections 179 to 183
185AOrganisms illegally present in New Zealand at commencement of Hazardous Substances and New Organisms Act 1996
[Repealed]
[Repealed]
[Spent]
Reprint notes

An Act to restate and reform the law relating to the exclusion, eradication, and effective management of pests and unwanted organisms

 
1 Short Title and commencement

(1)

This Act may be cited as the Biosecurity Act 1993.

(2)

This Act shall come into force on 1 October 1993.

Part 1 Preliminary

2 Interpretation

(1)

In this Act, unless the context otherwise requires,—

accredited person means a person currently accredited under section 103(7)

appointer means the person who appoints an inspector or authorised person

approved means approved by the Director-General

approved identification means any method of identifying animals or animal products approved under section 50 or prescribed under this Act

arrive in New Zealand,—

(a)

in relation to an aircraft, means to land (whether or not on land) in New Zealand territory after a flight originating outside New Zealand territory:

(b)

in relation to any other craft, means to anchor, berth, or come ashore in New Zealand territory after a voyage originating outside New Zealand territory:

(c)

in relation to a person, means to reach land within New Zealand territory after a flight or voyage originating outside New Zealand territory:

(d)

in relation to goods, means to reach land within New Zealand territory after a flight or voyage originating outside New Zealand territory

arrive in the EEZ has the same meaning as it has in Part 8A

auditor, in sections 105C to 105F, means a person appointed an auditor under section 105B

authorised person means a person for the time being appointed an authorised person under section 103

Authority means the Environmental Protection Authority established by section 7 of the Environmental Protection Authority Act 2011

automated electronic system means a system that is the subject of an arrangement under section 142F

biosecurity clearance means a clearance under section 26 for the entry of goods into New Zealand

biosecurity control area means a place that is—

(a)

part of a port approved as a place of first arrival in accordance with section 37(1); and

(b)

by written agreement with the port’s operator, under the control of the Director-General for the purposes of this Act

biosecurity database means the database established under section 142A

biosecurity law means—

(a)

this Act:

(b)

regulations:

(c)

instruments made under Part 5:

(d)

any thing done under this Act that applies generally:

(e)

any thing done under this Act that applies specifically to a person

border infringement offence means an infringement offence specified as a border infringement offence by regulations made under this Act

chief executive means the head of a department; and includes a chief executive appointed under the State Sector Act 1988

chief technical officer means a person appointed a chief technical officer under section 101

compliance order means an order made under section 154

consultation includes actions taken before the enactment of this Act in anticipation of its enactment; and consult has a corresponding meaning

containment condition that is still operative, at any time, means a condition of a kind authorised by section 13(2)(ab)(i) of the Animals Act 1967—

(a)

in the case of a condition requiring an organism to be held indefinitely, where the condition has not before that time been revoked; and

(b)

in the case of a condition requiring an organism to be held for a specified period, where the period has not before that time expired; and

(c)

in the case of a condition requiring an organism to be held until the happening of a specified event, where the event has not before that time happened

containment facility means a place approved in accordance with section 39 for holding organisms that should not, whether for the time being or ever, become established in New Zealand

controlled area means an area for the time being declared under subsection (2) of section 131 to be an area that is controlled for the purposes of that section

conveyance includes any craft, truck, cargo container, horse-box, wagon, cart, dray, cage, kennel, or vehicle that is or has been used for the conveyance of, or has come into contact with, any organism or organic material

costs and benefits includes costs and benefits of any kind, whether monetary or non-monetary

craft

(a)

means an aircraft, ship, boat, or other machine or vessel used or able to be used for the transport of people or goods, or both, by air or sea; and

(b)

includes—

(i)

an oil rig; and

(ii)

a structure or installation that is imported by being towed through the sea

craft risk management plan means a plan approved under section 24K

craft risk management standard means a standard issued under section 24G

department has the same meaning as in the State Sector Act 1988

Director-General means the chief executive of the Ministry

EEZ has the same meaning as it has in Part 8A

effects, in sections 12A and 12B and Part 5,—

(a)

include the following, regardless of scale, intensity, duration, or frequency:

(i)

a positive or adverse effect; and

(ii)

a temporary or permanent effect; and

(iii)

a past, present, or future effect; and

(iv)

a cumulative effect that arises over time or in combination with other effects; and

(b)

also include the following:

(i)

a potential effect of high probability; and

(ii)

a potential effect of low probability that has a high potential impact

environment includes—

(a)

ecosystems and their constituent parts, including people and their communities; and

(b)

all natural and physical resources; and

(c)

amenity values; and

(d)

the aesthetic, cultural, economic, and social conditions that affect or are affected by any matter referred to in paragraphs (a) to (c)

facility operator means a person approved under section 40

good neighbour rule means a rule to which the following apply:

(a)

it applies to an occupier of land and to a pest or pest agent that is present on the land; and

(b)

it seeks to manage the spread of a pest that would cause costs to occupiers of land that is adjacent or nearby; and

(c)

it is identified in a regional pest management plan as a good neighbour rule; and

(d)

it complies with the directions in the national policy direction relating to the setting of good neighbour rules

goods means all kinds of moveable personal property

import is defined in section 2A

import health standard has the meaning given to it by section 22

incidentally imported new organism has the same meaning as in section 2(1) of the Hazardous Substances and New Organisms Act 1996

infringement fee means the amount prescribed by regulations made under this Act as the infringement fee for an infringement offence

infringement offence means an offence prescribed by regulations made under this Act as an infringement offence

inspector means a person who is appointed an inspector under section 103

law, in section 154O, means—

(a)

this Act:

(b)

regulations:

(c)

a pest management plan:

(d)

a pathway management plan:

(e)

a declaration of emergency under section 144

local authority means a regional council or territorial authority

management agency means the body specified as the management agency in a pest management plan or a pathway management plan

marae includes the area of land on which all buildings such as the wharenui (meeting house), the wharekai (dining room), ablution blocks, and any other associated buildings are situated

Minister means a Minister of the Crown

Ministry means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

national policy direction means the direction approved under section 57

natural and physical resources means—

(a)

organisms of all kinds; and

(b)

the air, water, and soil in or on which any organism lives or may live; and

(c)

landscape and land form; and

(d)

geological features; and

(e)

structures of all kinds; and

(f)

systems of interacting living organisms and their environment

new organism has the same meaning as in section 2 of the Hazardous Substances and New Organisms Act 1996

New Zealand territory means the land and the waters enclosed by the outer limits of the territorial sea

occupier,—

(a)

in relation to any place physically occupied by any person, means that person; and

(b)

in relation to any other place, means the owner of the place; and

(c)

in relation to any place, includes any agent, employee, or other person, acting or apparently acting in the general management or control of the place

official means—

(a)

the Director-General:

(b)

an inspector:

(c)

an authorised person:

(d)

an assistant of an inspector:

(e)

an assistant of an authorised person:

(f)

a chief technical officer:

(g)

a person appointed an auditor under section 105B

organic material means material to which the following apply:

(a)

it—

(i)

is derived from an organism; or

(ii)

is an excretion or secretion of an organism; or

(iii)

contains material derived from an organism; or

(iv)

contains an excretion or secretion of an organism; and

(b)

it—

(i)

may or may not contain material derived from a human being; and

(ii)

may or may not contain the secretions of a human being; and

(c)

it—

(i)

is not cardboard, coal, paper, petroleum oil, a substance derived from coal, or a substance derived from petroleum oil; and

(ii)

is not material purporting to be organic on the basis only that it contains cardboard, coal, paper, petroleum oil, a substance derived from coal, or a substance derived from petroleum oil

organism

(a)

does not include a human being or a genetic structure derived from a human being:

(b)

includes a micro-organism:

(c)

subject to paragraph (a), includes a genetic structure that is capable of replicating itself (whether that structure comprises all or only part of an entity, and whether it comprises all or only part of the total genetic structure of an entity):

(d)

includes an entity (other than a human being) declared by the Governor-General by Order in Council to be an organism for the purposes of this Act:

(e)

includes a reproductive cell or developmental stage of an organism:

(f)

includes any particle that is a prion

other department means a department of State other than the Ministry

other Minister means a Minister other than the responsible Minister

pathway means movement that—

(a)

is of goods or craft out of, into, or through—

(i)

a particular place in New Zealand; or

(ii)

a particular kind of place in New Zealand; and

(b)

has the potential to spread harmful organisms

pathway management plan means a plan to which the following apply:

(a)

it is for the prevention or management of the spread of harmful organisms:

(b)

it is made under Part 5:

(c)

it is a national pathway management plan or a regional pathway management plan

person includes the Crown, a corporation sole, and a body of persons (whether corporate or unincorporate)

pest means an organism specified as a pest in a pest management plan

pest agent, in relation to any pest, means any organism capable of—

(a)

helping the pest replicate, spread, or survive; or

(b)

interfering with the management of the pest

pest management plan means a plan to which the following apply:

(a)

it is for the eradication or effective management of a particular pest or pests:

(b)

it is made under Part 5:

(c)

it is a national pest management plan or a regional pest management plan

place includes any building, conveyance, craft, land, or structure, and the bed and waters of the sea and any canal, lake, pond, river, or stream

port includes an airport, anchorage, harbour, and wharf

post-clearance requirements means requirements that apply after risk goods are given a biosecurity clearance

prescribed means prescribed by regulations made under this Act

principal officer means,—

(a)

in relation to a regional council, its chief executive; and

(b)

in relation to a region, the chief executive of the region’s regional council;—

and includes an acting chief executive

quarantine means confinement of organisms or organic material that may be harbouring pests or unwanted organisms

quarantine area means a place so designated under section 41

readiness or response activity has the meaning given to it in section 100Y

reasonable charge means a charge calculated by the Director-General having regard to the direct and indirect costs of performing the activity concerned

region, in relation to a unitary authority, means the region in respect of which it has the functions, duties, and powers of a regional council

regional council includes the Chatham Islands Council and a unitary authority

regulations means regulations made under this Act

responsible Minister means the Minister who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

restricted organism means any organism for which a containment approval has been granted in accordance with the Hazardous Substances and New Organisms Act 1996 (including any approval deemed to have been granted under sections 254(1), 254(3), 254(8)(a), 255(1), 255(2), 256, 258(1), and 258(3))

restricted place means any place that an inspector or an authorised person has declared to be a restricted place under section 130

risk goods means any organism, organic material, or other thing, or substance, that (by reason of its nature, origin, or other relevant factors) it is reasonable to suspect constitutes, harbours, or contains an organism that may—

(a)

cause unwanted harm to natural and physical resources or human health in New Zealand; or

(b)

interfere with the diagnosis, management, or treatment, in New Zealand, of pests or unwanted organisms

road includes all bridges, culverts, and fords forming part of any road

rule means a rule included in a pest management plan or a pathway management plan

sector has the same meaning as it has in Part 5A

small-scale management programme means a small-scale management programme to which section 100V applies

SPS Agreement means the WTO Agreement on the Application of Sanitary and Phytosanitary Measures

territorial authority means a territorial authority within the meaning of the Local Government Act 2002

territorial sea has the meaning given to it in section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

threatened species includes any species within the meaning given to the terms extinct in the wild, critically endangered, endangered, and vulnerable by the International Union for Conservation of Nature and Natural Resources

transitional facility means:

(a)

any place approved as a transitional facility in accordance with section 39 for the purpose of inspection, storage, treatment, quarantine, holding, or destruction of uncleared goods; or

(b)

a part of a port declared to be a transitional facility in accordance with section 39

unauthorised goods means any goods that are—

(a)

uncleared goods in a place that is not a transitional facility or a biosecurity control area (other than goods that, in accordance with the authority of an inspector, are—

(i)

proceeding from a transitional facility or a biosecurity control area to a transitional facility, biosecurity control area, or a containment facility; or

(ii)

being exported from New Zealand); or

(b)

uncleared goods that are in a transitional facility or a biosecurity control area to which those goods proceeded, other than in accordance with the authority of an inspector, from some other transitional facility, or biosecurity control area, and have not later received the authority of an inspector to remain there; or

(c)

goods which have been given a biosecurity clearance by an inspector following receipt by that inspector of false, incomplete, or misleading information concerning the goods; or

(ca)

goods that—

(i)

are subject to post-clearance requirements in an import health standard; and

(ii)

do not comply with the requirements; or

(cb)

goods that—

(i)

are subject to post-clearance conditions under section 27A; and

(ii)

do not comply with the conditions; or

(cc)

goods that—

(i)

are subject to regulations made under section 165(3); and

(ii)

do not comply with the regulations; or

(cd)

goods in relation to which a person is subject to post-clearance requirements in an import health standard and does not comply with the requirements; or

(ce)

goods in relation to which a person is subject to post-clearance conditions under section 27A and does not comply with the conditions; or

(cf)

goods in relation to which a person is subject to regulations made under section 165(3) and does not comply with the regulations; or

(d)

a restricted organism in a place that is not a containment facility (other than an organism that,—

(i)

in accordance with the authority of an inspector, is proceeding from a transitional facility, biosecurity control area, or a containment facility to another transitional facility, biosecurity control area, or containment facility; or

(ii)

is in a transitional facility or biosecurity control area to which it has proceeded in accordance with the authority of an inspector; or

(iii)

in accordance with the authority of an inspector, is being exported from New Zealand); or

(e)

a restricted organism that is in a containment facility to which it proceeded other than in accordance with the authority of an inspector, and has not later received the authority of an inspector to remain there

uncleared goods means imported goods for which no biosecurity clearance has been given

unitary authority has the meaning given to it by section 5(1) of the Local Government Act 2002

unwanted organism means any organism that a chief technical officer believes is capable or potentially capable of causing unwanted harm to any natural and physical resources or human health; and

(a)

includes—

(i)

any new organism, if the Authority has declined approval to import that organism; and

(ii)

any organism specified in Schedule 2 of the Hazardous Substances and New Organisms Act 1996; but

(b)

does not include any organism approved for importation under the Hazardous Substances and New Organisms Act 1996, unless—

(i)

the organism is an organism which has escaped from a containment facility; or

(ii)

a chief technical officer, after consulting the Authority and taking into account any comments made by the Authority concerning the organism, believes that the organism is capable or potentially capable of causing unwanted harm to any natural and physical resources or human health

working day means any day except—

(a)

a Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and

(ab)

the day observed in the region of a regional council as the anniversary day of the province of which the region forms part; and

(ac)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(b)

a day in the period commencing on 20 December in any year and ending with 15 January in the following year

written or in writing means printed, typewritten, or otherwise visibly represented, copied, or reproduced, including by fax, email, or other electronic means.

(2)

[Repealed]

(3)

[Repealed]

(4)

[Repealed]

Section 2(1) accredited person: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) appointer: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) arrive in New Zealand paragraph (d): inserted, on 18 September 2012, by section 4(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) arrive in the EEZ: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) auditor: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) Authority: replaced, on 1 July 2011, by section 53(1) of the Environmental Protection Authority Act 2011 (2011 No 14).

Section 2(1) automated electronic system: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) biosecurity control area: replaced, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) biosecurity database: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) biosecurity law: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) border infringement offence: inserted, on 22 April 2010, by section 4 of the Biosecurity Amendment Act 2009 (2009 No 66).

Section 2(1) compliance order: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) confine: repealed, on 26 November 1997, by section 2(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) containment facility: replaced, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) craft: replaced, on 18 September 2012, by section 4(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) craft risk management plan: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) craft risk management standard: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) designated port of entry: repealed, on 26 November 1997, by section 2(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) EEZ: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) effects: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) exclusive economic zone: repealed, on 18 September 2012, by section 4(4) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) facility operator: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) good neighbour rule: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) import: replaced, on 18 September 2012, by section 4(5) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) import health permit: repealed, on 26 November 1997, by section 2(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) import health standard: replaced, on 18 September 2012, by section 4(6) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) incidentally imported new organism: inserted, on 9 April 2008, by section 4 of the Biosecurity Amendment Act (No 2) 2008 (2008 No 21).

Section 2(1) infringement fee: inserted, on 22 April 2010, by section 4 of the Biosecurity Amendment Act 2009 (2009 No 66).

Section 2(1) infringement offence: inserted, on 22 April 2010, by section 4 of the Biosecurity Amendment Act 2009 (2009 No 66).

Section 2(1) law: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) management agency: replaced, on 18 September 2012, by section 4(7) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) Minister: replaced, on 18 September 2012, by section 4(8) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) national policy direction: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) natural and physical resources: inserted, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) natural resources: repealed, on 26 November 1997, by section 2(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) new organism: inserted, on 29 July 1998, by section 128(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) New Zealand territory: amended, on 18 September 2012, by section 4(9) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) New Zealand territory: amended, on 26 November 1997, by section 2(3)(a) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) official: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) organic material: replaced, on 18 September 2012, by section 4(10) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) organism paragraph (f): inserted, on 26 November 1997, by section 2(3)(b) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) pathway: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) pathway management plan: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) pest: amended, on 18 September 2012, by section 4(11) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) pest management plan: inserted, on 18 September 2012, by section 4(12) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) pest management strategy and strategy: repealed, on 18 September 2012, by section 4(12) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) post-clearance requirements: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) principal officer: replaced, on 1 July 2003, by section 262 of the Local Government Act 2002 (2002 No 84).

Section 2(1) quarantine: inserted, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) quarantine facility: repealed, on 26 November 1997, by section 2(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) readiness or response activity: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) regional council: amended, on 1 November 1995, by section 36 of the Chatham Islands Council Act 1995 (1995 No 41).

Section 2(1) restricted organism: replaced, on 29 July 1998, by section 128(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) restricted place: amended, on 26 November 1997, by section 2(5) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) risk goods: replaced, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) road: inserted, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) rule: inserted, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) rule: amended, on 18 September 2012, by section 4(13) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) sector: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) small-scale management programme: inserted, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) small-scale management programme: amended, on 18 September 2012, by section 4(14) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) SPS Agreement: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) territorial authority: replaced, on 1 July 2003, by section 262 of the Local Government Act 2002 (2002 No 84).

Section 2(1) territorial sea: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) threatened species: inserted, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) transitional facility: replaced, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) treatment: repealed, on 26 November 1997, by section 2(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) unauthorised goods: replaced, on 26 November 1997, by section 2(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) unauthorised goods paragraph (ca): inserted, on 18 September 2012, by section 4(15) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) unauthorised goods paragraph (cb): inserted, on 18 September 2012, by section 4(15) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) unauthorised goods paragraph (cc): inserted, on 18 September 2012, by section 4(15) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) unauthorised goods paragraph (cd): inserted, on 18 September 2012, by section 4(15) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) unauthorised goods paragraph (ce): inserted, on 18 September 2012, by section 4(15) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) unauthorised goods paragraph (cf): inserted, on 18 September 2012, by section 4(15) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(1) unitary authority: replaced, on 1 July 2003, by section 262 of the Local Government Act 2002 (2002 No 84).

Section 2(1) unwanted organism: replaced, on 29 July 1998, by section 128(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) working day paragraph (ab): inserted, on 26 November 1997, by section 2(6) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 2(1) working day paragraph (ac): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

Section 2(1) written or in writing: inserted, on 18 September 2012, by section 4(16) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(2): repealed, on 18 September 2012, by section 4(17) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(3): repealed, on 18 September 2012, by section 4(17) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 2(4): repealed, on 8 July 2003, by section 3 of the Biosecurity Amendment Act 2003 (2003 No 38).

2A Interpretation of import

(1)

In this Act, import means to bring within New Zealand territory from outside the territory. Verb forms of import have a corresponding meaning.

(2)

In this Act, importation means bringing within New Zealand territory from outside the territory.

(3)

In this Act, importer

(a)

means a person who imports goods; and

(b)

includes a person for whom goods are imported; and

(c)

includes a New Zealand-based agent who—

(i)

has an overseas-based person as a principal; and

(ii)

arranges the importation of goods for the principal; and

(d)

includes a New Zealand-based representative who—

(i)

represents an overseas-based person; and

(ii)

arranges the importation of goods for the person; and

(e)

includes the New Zealand-based consignee of imported goods.

Section 2A: inserted, on 18 September 2012, by section 5 of the Biosecurity Law Reform Act 2012 (2012 No 73).

2B Interpretation of specified in relation to organisms

For the purposes of this Act, an organism may be specified by 1 or both of the following:

(a)

its scientific name:

(b)

the name of a disease it causes.

Section 2B: inserted, on 18 September 2012, by section 5 of the Biosecurity Law Reform Act 2012 (2012 No 73).

3 Application of Act to syndromes of uncertain origin

(1)

This subsection applies to a syndrome if—

(a)

the scientific community generally accepts that—

(i)

it is probably caused by an organism; but

(ii)

there is no satisfactory proof that it is in fact caused by an organism; or

(b)

the scientific community generally accepts that—

(i)

it is caused by an organism; but

(ii)

there is no satisfactory evidence available as to the identity or nature of the organism causing it.

(2)

This Act shall have effect as if every syndrome to which subsection (1) applies is in fact caused by an organism, which may be specified (in a pest management plan or a pathway management plan or for any other purpose) by reference to the name generally accepted by the scientific community for that syndrome.

(3)

In this section, syndrome means a group of characteristic symptoms, behaviours, or symptoms and behaviours, generally recognised by the scientific community as proceeding or being likely to proceed from a single cause.

Section 3(2): amended, on 18 September 2012, by section 6 of the Biosecurity Law Reform Act 2012 (2012 No 73).

4 Application of Act in territorial sea

A provision in this Act that applies in the territorial sea must be interpreted in a way that preserves the rights of vessels of other states to engage in innocent passage through the territorial sea or transit passage through straits used for international navigation as set out in the United Nations Convention on the Law of the Sea of 10 December 1982.

Section 4: replaced, on 18 September 2012, by section 7 of the Biosecurity Law Reform Act 2012 (2012 No 73).

5 Act binds the Crown

(1)

This Act binds the Crown, except as described in subsection (2).

(2)

A regional pest management plan binds the Crown to the extent provided in section 69(5) and a regional pathway management plan binds the Crown to the extent provided in section 89(5).

Section 5: replaced, on 18 September 2012, by section 8 of the Biosecurity Law Reform Act 2012 (2012 No 73).

6 Land may include parts of boundary roads

(1)

Where a pest management plan or a pathway management plan applies to land adjoining a road, the plan may state that the land includes, for the purposes of the plan, all or any of the portions of road bounded by—

(a)

the boundary of that land abutting that road; and

(b)

lines extended from the end of that portion of boundary to the middle line of the road; and

(c)

the middle line of the road connecting those extended lines.

(2)

Any person required or authorised by or under a pest management plan or a pathway management plan to do anything on or in relation to land, when the plan provides that the land includes portions of road in accordance with subsection (1), is also required or authorised to do that thing on those portions of the road.

(3)

Nothing in subsection (2) authorises any person to damage any road.

Section 6: replaced, on 26 November 1997, by section 3 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 6(1): amended, on 18 September 2012, by section 9(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 6(2): amended, on 18 September 2012, by section 9(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

7 Relationship with other enactments

(1)

Nothing in any enactment specified in this section affects the performance or exercise of any power, function, or duty conferred by Part 7.

(2)

Except—

(a)

to the extent provided in subsections (1), (5), and (6), and sections 7A to 7D; and

(b)

to the extent that those enactments are expressly amended by section 168(1),—

this Act must not be construed so as to affect or derogate in any way from the provisions of the Soil Conservation and Rivers Control Act 1941, the Forests Act 1949, the Wildlife Act 1953, the Health Act 1956, the Animal Welfare Act 1999, the Wild Animal Control Act 1977, the Reserves Act 1977, the National Parks Act 1980, the Fisheries Act 1983, the Conservation Act 1987, the Te Urewera Act 2014, the Trade in Endangered Species Act 1989, the Resource Management Act 1991, or the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

(3)

This Act must not be construed so as to affect or derogate in any way from the provisions of the Customs and Excise Act 1996 and, in particular, the provisions of this Act do not affect the obligations of any person under the Customs and Excise Act 1996 in relation to goods.

(4)

The provisions of this Act in so far as they relate to risk goods must not be construed to take precedence over the powers provided under the Misuse of Drugs Act 1975 in relation to any controlled drug (as defined in section 2(1) of that Act).

(5)

The provisions of the Wild Animal Control Act 1977 and the Game Animal Council Act 2013 do not apply to prevent or inhibit the exercise of any powers under the Biosecurity Act 1993 on any land (other than land administered under the Acts listed in Schedule 1 of the Conservation Act 1987) when those powers are used in respect of—

(a)

a pest; or

(b)

an unwanted organism—

that may be transmitted by any animal to which the Wild Animal Control Act 1977 or Game Animal Council Act 2013 applies.

(6)

The provisions of the Wildlife Act 1953 (including any regulations made under that Act)—

(a)

do not apply to prevent or inhibit the exercise or performance of any powers, functions, or duties under this Act when those powers, functions, or duties are exercised or performed in respect of an unwanted organism; and

(b)

do not allow or authorise the contravention of any provision of this Act in respect of wildlife that is also an unwanted organism.

Section 7: replaced, on 26 November 1997, by section 4 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 7(2): amended, on 28 July 2014, by section 138 of the Te Urewera Act 2014 (2014 No 51).

Section 7(2): amended, on 28 June 2013, by section 169(2) of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (2012 No 72).

Section 7(2): amended, on 1 January 2000, by section 194 of the Animal Welfare Act 1999 (1999 No 142).

Section 7(2)(a): amended, on 28 June 2013, by section 169(1) of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (2012 No 72).

Section 7(2)(a): amended, on 8 July 2003, by section 4(1) of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 7(5): amended, on 28 November 2013, by section 41(2) of the Game Animal Council Act 2013 (2013 No 98).

Section 7(5): amended, on 8 July 2003, by section 4(2) of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 7(6): inserted, on 8 July 2003, by section 4(3) of the Biosecurity Amendment Act 2003 (2003 No 38).

7A Relationship with Resource Management Act 1991

(1)

The responsible Minister may exempt an action from the provisions of Part 3 of the Resource Management Act 1991 if the action is taken in accordance with Part 6 of this Act in an attempt to eradicate an organism and if—

(a)

the action would be in breach of Part 3 of the Resource Management Act 1991; and

(b)

the responsible Minister is satisfied that it is likely that—

(i)

the organism is not established in New Zealand, the organism is not known to be established in New Zealand, or the organism is established in New Zealand but is restricted to certain parts of New Zealand; and

(ii)

the organism has the potential to cause 1 or more of significant economic loss, significant adverse effects on human health, or significant environmental loss if it becomes established in New Zealand, or if it becomes established throughout New Zealand; and

(iii)

it is in the public interest that action be taken immediately in an attempt to eradicate the organism.

(2)

The exemption of an action under subsection (1) may last for up to 20 working days.

(3)

Before making a decision under subsection (1), the responsible Minister—

(a)

must consult the relevant consent authority (to the extent that is possible in the circumstances); and

(b)

may consult such other persons as the responsible Minister considers are representative of the persons likely to be affected by the eradication attempt.

(4)

If an exemption is granted under subsection (1) or continued by regulations made under section 7D, Part 3 of the Resource Management Act 1991 does not apply to the action while the exemption continues.

(5)

After the exemption ends,—

(a)

the provisions of the Resource Management Act 1991 apply to the action and its adverse effects to the same extent as those provisions would have applied but for the exemption; and

(b)

the responsible Minister must remedy or mitigate the adverse effects to which the provisions of the Resource Management Act 1991 would have applied if not for the exemption.

(6)

For the purposes of this section, consent authority has the same meaning as in section 2(1) of the Resource Management Act 1991.

Section 7A: replaced, on 28 June 2013, by section 170 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (2012 No 72).

7B Relationship with Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

(1)

The responsible Minister may exempt an action from the provisions of Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 if the action is taken in an attempt to eradicate or manage an organism under this Act and if—

(a)

the action would be in breach of Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012; and

(b)

the responsible Minister is satisfied that it is likely that—

(i)

the organism is not established in the exclusive economic zone, the organism is not known to be established in the exclusive economic zone, or the organism is established in the exclusive economic zone but is restricted to certain parts of the exclusive economic zone; and

(ii)

the organism has the potential to cause 1 or more of significant economic loss, significant adverse effects on human health, or significant environmental loss if it becomes established in the exclusive economic zone, or if it becomes established throughout the exclusive economic zone, or if it spreads to New Zealand; and

(iii)

it is in the public interest that action be taken immediately in an attempt to eradicate or manage the organism.

(2)

The exemption of an action under subsection (1) may last for up to 20 working days.

(3)

Before making a decision under subsection (1), the responsible Minister—

(a)

must consult the Authority (to the extent that is possible in the circumstances); and

(b)

may consult such other persons as the responsible Minister considers are representative of the persons likely to be affected by the eradication or management attempt.

(4)

If an exemption is granted under subsection (1) or continued by regulations made under section 7D, Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 does not apply to the action while the exemption continues.

(5)

After the exemption ends,—

(a)

the provisions of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 apply to the action and its adverse effects to the same extent as those provisions would have applied but for the exemption; and

(b)

the responsible Minister must remedy or mitigate the adverse effects to which the provisions of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 would have applied if not for the exemption.

Section 7B: inserted, on 28 June 2013, by section 170 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (2012 No 72).

7C Public notice of decision to exempt action

(1)

After making a decision under section 7A or 7B, the responsible Minister must give public notice of the Minister’s decision in such a manner as the Minister thinks fit.

(2)

The public notice must specify—

(a)

the organism to be eradicated or managed; and

(b)

the principal actions that may be taken in the attempt to eradicate or manage the organism; and

(c)

the areas affected by the action.

(3)

A failure to comply with the provisions of this section or section 7A(3) or 7B(3) does not affect the validity of any exemption given under section 7A or 7B.

Section 7C: inserted, on 28 June 2013, by section 170 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (2012 No 72).

7D Regulations may continue exemption

(1)

The Governor-General may, by Order in Council made on the recommendation of the responsible Minister, make regulations—

(a)

continuing the exemption under section 7A of an action from Part 3 of the Resource Management Act 1991:

(b)

continuing the exemption under section 7B of an action from Part 2 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.

(2)

The responsible Minister must not make a recommendation for the purposes of subsection (1) unless he or she considers that it is necessary to continue the action to attempt to eradicate or manage the organism beyond the duration of the exemption.

(3)

Regulations made under this section come into force on the date of notification in the Gazette, or at the time specified in the regulations, whichever is the later.

(4)

The regulations expire on the day that is 2 years after the date on which the regulations come into force unless they are revoked earlier.

Section 7D: inserted, on 28 June 2013, by section 170 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (2012 No 72).

7E Border information supplied using JBMS must be supplied in approved form and manner

(1)

This section applies to a requirement by or under an Act to supply to the Ministry any border information (as defined in section 41A(1)) if the Act is—

(a)

this Act; or

(b)

an Act that is specified by regulations under section 165A to be an Act for the purposes of the definition of Ministry-related border management function in section 41A(1).

(2)

Any person who uses the JBMS (which, in this section, has the meaning given in section 131A of the Customs and Excise Act 1996) to comply with the requirement (including, without limitation, by supplying the information to the Customs, or to an appointed agency, in accordance with section 41D or 41H) must supply the information in a form and manner—

(a)

for complying with the requirement by using the JBMS; and

(b)

for the time being generally approved in writing,—

(i)

if the Act is this Act, by the Director-General; or

(ii)

if the Act is one specified by regulations under section 165A to be an Act for the purposes of the definition of Ministry-related border management function in section 41A(1), under that Act (as modified by this section) by the chief executive of the department of State responsible for the Act’s administration.

(3)

The approved form and manner referred to in subsection (2)—

(a)

must be notified via an Internet site that is, so far as practicable, publicly available free of charge; and

(b)

may be set out, for the information of registered JBMS users, in Customs rules under section 288(1)(j) of the Customs and Excise Act 1996.

Section 7E: inserted, on 24 June 2014, by section 4 of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

7F Duty to use JBMS to supply border information to Ministry

(1)

This section applies to a requirement by or under an Act to supply to the Ministry any border information (as defined in section 41A(1)) if the Act is—

(a)

this Act; or

(b)

an Act that is specified by regulations under section 165A to be an Act for the purposes of the definition of Ministry-related border management function in section 41A(1).

(2)

After the commencement of this section, the only ways in which a person can comply with the requirement are—

(a)

by using the JBMS (which, in this section, has the meaning given in section 131A of the Customs and Excise Act 1996); or

(b)

by using another means for the time being generally or specifically approved in writing by—

(i)

the Director-General (as defined in section 2(1)), if the Act is this Act; or

(ii)

the chief executive of the department of State for the time being responsible for the Act’s administration, if the Act is an Act that is specified by regulations under section 165A to be an Act for the purposes of the definition of Ministry-related border management function in section 41A(1).

Section 7F: inserted, on 1 July 2016, by section 17 of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Part 2 Functions, powers, and duties

Ministers

8 Responsibilities of responsible Minister

(1)

In addition to being responsible for the administration of this Act, the responsible Minister has responsibility for—

(a)

providing for the co-ordinated implementation of this Act:

(b)

recording and co-ordinating reports of suspected new organisms:

(c)

managing appropriate responses to such reports.

(2)

Section 9 does not limit or affect the generality of subsection (1).

9 Powers of responsible Minister

(1)

The responsible Minister has power to—

(a)

perform the functions in section 7A:

(b)
[Repealed]

(c)

recommend to the Governor-General the making of Orders in Council under section 45(3):

(ca)

assign responsibility for decisions under section 55:

(cb)

recommend to the Governor-General the approval of the national policy direction under section 57:

(cc)

recommend to the Governor-General the approval of amendments to the national policy direction under section 58(1):

(cd)

approve amendments to the national policy direction under section 58(2):

(ce)

recommend to the Governor-General the approval of the revocation and replacement of the national policy direction under section 58(3):

(cf)

publish notices about industry organisations under section 100ZA(2):

(cg)

recommend to the Governor-General under section 100ZB(1) the making of Orders in Council imposing readiness and response levies:

(d)

recommend to the Governor-General under section 137(1) or section 140AA(3) the making of Orders in Council imposing levies, and perform other functions in relation to levies:

(e)

recommend to the Governor-General under section 165 the making of regulations.

(2)

The responsible Minister must not delegate to any person the exercise of any of the powers specified in subsection (1).

Section 9: replaced, on 26 November 1997, by section 5 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 9(1)(b): repealed, on 18 September 2012, by section 10(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(ca): inserted, on 18 September 2012, by section 10(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(cb): inserted, on 18 September 2012, by section 10(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(cc): inserted, on 18 September 2012, by section 10(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(cd): inserted, on 18 September 2012, by section 10(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(ce): inserted, on 18 September 2012, by section 10(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(cf): inserted, on 18 September 2012, by section 10(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(cg): inserted, on 18 September 2012, by section 10(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 9(1)(d): amended, on 28 May 2015, by section 4 of the Biosecurity Amendment Act (No 2) 2015 (2015 No 56).

Section 9(2): amended, on 18 September 2012, by section 10(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

10 Functions of Ministers in relation to national plans

(1)

Any Minister may carry out the functions specified in Part 5 as the functions of a Minister.

(2)

Any Minister may carry out the functions of—

(a)

approving the preparation of a national pest management plan under section 64(1):

(b)

recommending to the Governor-General the making of an Order in Council making a national pest management plan under section 66(1):

(c)

approving the preparation of a national pathway management plan under section 84(1):

(d)

recommending to the Governor-General the making of an Order in Council making a national pathway management plan under section 86(1):

(e)

appointing a management agency for a plan under section 100(4):

(f)

disallowing an operational plan or part of it under section 100B(4):

(g)

reviewing, amending, revoking and replacing, or revoking a plan under section 100D:

(h)

recommending to the Governor-General the making of an Order in Council imposing a levy under section 100L(1).

(3)

No Minister may delegate the carrying out of the functions in subsection (2).

Section 10: replaced, on 18 September 2012, by section 11 of the Biosecurity Law Reform Act 2012 (2012 No 73).

11 Other powers of Ministers

(1)

Any Minister has power to—

(a)

direct the forfeiture of organisms and organic material under section 134(3):

(b)

take action under sections 144 and 147 in relation to biosecurity emergencies:

(c)

take action under section 145 in relation to biosecurity emergencies:

(d)

recommend to the Governor-General under section 150(1) the making of biosecurity emergency regulations, and where such regulations are made, the Minister has the duty of laying them before the House of Representatives under section 150(5):

(e)

declare a provisional control programme under section 152(1):

(f)

extend under subsection (3) of section 152 a provisional control programme.

(2)

A Minister must not delegate to any person the exercise of the powers specified in subsection (1)(b), (d), (e), and (f).

Section 11: replaced, on 26 November 1997, by section 7 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 11(2): amended, on 7 May 1999, by section 2 of the Biosecurity Amendment Act 1999 (1999 No 29).

12 Responsible Minister may require information

(1)

The responsible Minister may ask any regional council or management agency to give the responsible Minister, in a form the responsible Minister specifies, any information relating to the exercise or performance of any of its functions, powers, or duties under this Act or under any pest management plan or a pathway management plan

(a)

in the possession of the council or agency; or

(b)

capable of being obtained by the council or agency without unreasonable difficulty or expense,—

that the responsible Minister reasonably requires.

(2)

A regional council or management agency shall give the responsible Minister any information the responsible Minister has asked for under subsection (1) as soon as is reasonably practicable after being asked to do so.

Section 12(1): amended, on 18 September 2012, by section 12 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Director-General

Heading: replaced, on 18 September 2012, by section 13 of the Biosecurity Law Reform Act 2012 (2012 No 73).

12A Director-General provides overall leadership

(1)

The Director-General provides overall leadership in activities that prevent, reduce, or eliminate adverse effects from harmful organisms that are present in New Zealand (pest management).

(2)

The ways in which the Director-General provides leadership include—

(a)

promoting alignment of pest management within the whole biosecurity system:

(b)

overseeing New Zealand’s systems for pest management and measuring overall system performance:

(c)

facilitating the development and alignment of national pest management plans and national pathway management plans:

(d)

promoting public support for pest management:

(e)

facilitating communication, co-operation, and co-ordination among those involved in pest management to enhance effectiveness, efficiency, and equity of programmes.

Section 12A: inserted, on 18 September 2012, by section 13 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Local authorities

Heading: inserted, on 18 September 2012, by section 13 of the Biosecurity Law Reform Act 2012 (2012 No 73).

12B Regional council provides leadership regionally

(1)

A regional council provides leadership in activities that prevent, reduce, or eliminate adverse effects from harmful organisms that are present in New Zealand (pest management) in its region.

(2)

The ways in which the regional council provides leadership in the region include—

(a)

promoting the alignment of pest management in the region:

(b)

facilitating the development and alignment of regional pest management plans and regional pathway management plans in the region:

(c)

promoting public support for pest management:

(d)

facilitating communication and co-operation among those involved in pest management to enhance effectiveness, efficiency, and equity of programmes.

(3)

A regional council also provides leadership by promoting co-ordination of pest management between regions.

Section 12B: inserted, on 18 September 2012, by section 13 of the Biosecurity Law Reform Act 2012 (2012 No 73).

13 Powers of regional councils

(1)

Every regional council has, in relation to its region, power to—

(a)

cause to be carried out, for the purposes of Part 5,—

(i)

monitoring to determine whether or not pests, pest agents, and unwanted organisms are present; and

(ii)

surveillance of pests, pest agents, and unwanted organisms:

(b)

provide, in accordance with relevant pest management plans, for the assessment and eradication or management of pests:

(c)

prepare proposals for, make, and implement regional pest management plans and regional pathway management plans:

(d)

appoint a management agency for a plan under section 100(4):

(e)

disallow an operational plan or part of it under section 100B(4):

(f)

review, amend, revoke and replace, or revoke a plan under section 100D:

(fa)

declare and implement small-scale management programmes:

(g)

gather information, keep records, undertake research, or do any other similar thing, if doing so is necessary or desirable to enable it to act effectively under this Act:

(h)

take any action contemplated by or necessary for giving effect to any provision of this Act.

(2)

Regional councils have all the powers of territorial authorities set out in section 14.

Section 13: replaced, on 26 November 1997, by section 8 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 13(1)(a): replaced, on 18 September 2012, by section 14(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 13(1)(b): replaced, on 18 September 2012, by section 14(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 13(1)(c): replaced, on 18 September 2012, by section 14(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 13(1)(d): replaced, on 18 September 2012, by section 14(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 13(1)(e): replaced, on 18 September 2012, by section 14(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 13(1)(f): replaced, on 18 September 2012, by section 14(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 13(1)(fa): inserted, on 18 September 2012, by section 14(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 13(2): replaced, on 18 September 2012, by section 14(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

14 Powers of territorial authorities

Every territorial authority has power—

(a)

to take any action any natural person could take under Part 5:

(b)

to act as a management agency under a pest management plan or a pathway management plan:

(c)

to take any action provided for or required by a pest management plan or a pathway management plan:

(d)

if, and only if,—

(i)

a pest management plan or a pathway management plan provides for certain actions to be taken; but does not expressly provide for them to be taken by territorial authorities, territorial authorities of a class or description to which the authority belongs, or the authority; and

(ii)

the management agency for the plan agrees with the authority that the authority will take those actions and the agency will meet the authority’s costs in doing so,—

to take those actions:

(da)

to the extent only that a national pest management plan or a national pathway management plan provides for—

(i)

territorial authorities; or

(ii)

territorial authorities of a class or description to which the authority belongs; or

(iii)

the authority,—

to make contributions towards the costs of the implementation of the plan, to make such contributions (from the authority’s general funds or from any fund dedicated for the purpose):

(db)

to set and assess rates under the Local Government (Rating) Act 2002 for the purpose of making any contributions that the authority is empowered by paragraph (da) to make:

(e)

to gather information, keep records, undertake research, or do any other similar thing, if doing so is necessary or desirable to enable it to act effectively under this Act:

(f)

to perform or exercise any function, power, or duty whose performance or exercise is for the time being transferred to it under section 15:

(g)

to perform or exercise any other function, power, or duty conferred on it by this Act.

Section 14(b): amended, on 18 September 2012, by section 15(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 14(c): amended, on 18 September 2012, by section 15(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 14(d): replaced, on 1 July 1994, by section 3 of the Biosecurity Amendment Act 1994 (1994 No 24).

Section 14(d)(i): amended, on 18 September 2012, by section 15(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 14(d)(ii): amended, on 18 September 2012, by section 15(4) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 14(da): inserted, on 1 July 1994, by section 3 of the Biosecurity Amendment Act 1994 (1994 No 24).

Section 14(da): amended, on 18 September 2012, by section 15(5) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 14(da): amended, on 18 September 2012, by section 15(6) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 14(db): replaced, on 1 July 2003, by section 137(1) of the Local Government (Rating) Act 2002 (2002 No 6).

15 Transfer of powers, etc, by local authorities

(1)

Subject to subsections (2) and (3), a local authority that has an operation under this Act (in this section referred to as the transferor) may transfer the performance of the operation to another local authority (in this section referred to as the transferee), if—

(a)

it has used the special consultative procedure specified in section 83 of the Local Government Act 2002; and

(b)

in the case of an operation under or relating to a national pest management plan or a national pathway management plan, before using that procedure it has served notice on the Minister of its intention to do so; and

(c)

in the case of an operation under or relating to a regional pest management plan or a regional pathway management plan,—

(i)

it is a regional council, and no other regional council is involved in the plan; or

(ii)

before using that procedure it has served notice on every regional council involved in the plan (other than itself, if it is a regional council) of its intention to do so; and

(d)

it agrees with the transferee that the transfer is desirable on the grounds of—

(i)

efficiency; and

(ii)

technical or special capability or expertise on the part of the transferee,—

by (and subject to any terms and conditions contained in) a written agreement with the transferee.

(2)

The transferor shall not transfer—

(a)

the performance of the function of making a regional pest management plan or a regional pathway management plan under Part 5; or

(b)

the exercise of the power of transfer conferred by subsection (1).

(3)

The agreement shall contain provisions dealing with the revocation and relinquishment of the transfer; and

(a)

the transferor may change or revoke the transfer; and

(b)

the transferee may relinquish the transfer,—

accordingly.

(4)

While the operation remains transferred to the transferee,—

(a)

the transferee’s functions, powers, and duties shall be deemed to be extended to the extent necessary to enable it to undertake the operation; but

(b)

the transferor shall continue to be responsible for the operation.

(5)

In this section—

operation means a function, power, or duty

perform includes exercise.

Section 15(1): amended, on 26 November 1997, by section 9(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 15(1)(a): replaced, on 1 July 2003, by section 262 of the Local Government Act 2002 (2002 No 84).

Section 15(1)(b): amended, on 18 September 2012, by section 16(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 15(1)(c): amended, on 18 September 2012, by section 16(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 15(2)(a): amended, on 18 September 2012, by section 16(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Part 3 Importation of risk goods

16 Purpose of Part 3

The purpose of this Part is to provide for the effective management of risks associated with—

(a)

the importation of risk goods:

(b)

the entry of craft into New Zealand territory.

Section 16: replaced, on 18 September 2012, by section 17 of the Biosecurity Law Reform Act 2012 (2012 No 73).

16A General duty relating to importation

A person must not—

(a)

provide an official or an automated electronic system with false, misleading, or incomplete information about goods to be imported or uncleared goods; or

(b)

take steps that are likely to hinder the detection by an official of uncleared goods.

Section 16A: inserted, on 18 September 2012, by section 17 of the Biosecurity Law Reform Act 2012 (2012 No 73).

16B Duty of importers to comply with import health standards

An importer of risk goods must—

(a)

take all reasonable steps to ensure that the goods comply with applicable import health standards; and

(b)

if required by an inspector, do the following:

(i)

provide the inspector with a declaration in an approved form setting out the steps taken to comply with the standard; and

(ii)

provide the inspector with the declaration in an approved manner.

Section 16B: inserted, on 18 September 2012, by section 17 of the Biosecurity Law Reform Act 2012 (2012 No 73).

16C Duty of importers not to abandon goods

(1)

An importer of goods must not leave the goods in a biosecurity control area, transitional facility, or place approved under section 37.

(2)

For the purposes of this section, leaving goods—

(a)

means leaving them in a way or for a period that would entitle an inspector or authorised person to regard the goods, under section 119(2), as abandoned; and

(b)

does not mean putting them into a bin provided for the purpose of having imported goods left in it for disposal.

Section 16C: inserted, on 18 September 2012, by section 17 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Arrival of craft

17 Notice of craft’s intended arrival in New Zealand
Craft to which section applies

(1)

This section applies to a craft that is en route to New Zealand territory from a point outside New Zealand territory on a flight or voyage that is intended to include arrival in New Zealand.

Meaning of approved port

(2)

The craft must arrive in New Zealand at 1 of the following approved ports if it is possible and practicable to do so:

(a)

a port of entry approved under this Act as a place of first arrival for craft of all kinds and craft arriving for all purposes:

(b)

a port of entry approved under this Act as a place of first arrival suitable for the craft and, if relevant, for the purpose for which it is arriving:

(c)

a port approved under section 37A for the arrival of the craft.

Persons who carry out duties

(3)

The duties in subsections (6), (7), (9), and (10) must be carried out by the person who is in charge of the craft.

(4)

The following persons may carry out the duties on behalf of the person who is in charge of the craft:

(a)

an owner of the craft:

(b)

an operator of the craft:

(c)

an agent of an owner of the craft:

(d)

an agent of an operator of the craft.

Form and manner of notices, and supporting documentation

(5)

The person who is carrying out the duties must give notices under this section in the form and manner—

(a)

approved by the Director-General; and

(b)

available on an Internet site maintained by or on behalf of the Ministry.

(5A)

Notices under this section must be accompanied by any supporting documents (being documents each of which is genuine, not erroneous, and not misleading) the Director-General may require.

First notice

(6)

The person must give the Director-General notice of the following matters from a point outside New Zealand territory:

(a)

when and where, approximately, the craft will enter New Zealand territory; and

(b)

in relation to the craft’s arrival in New Zealand,—

(i)

the approved port at which it is intended that the craft will arrive; or

(ii)

if it is impossible or impracticable to go to an approved port, the destination at which it is intended that the craft will arrive.

(7)

After giving notice under subsection (6), the person must ensure that the craft goes directly to, and arrives in New Zealand at, the notified port or destination.

Second notice

(8)

Subsections (9) and (10) apply when—

(a)

the person has given the notice; and

(b)

the craft has not subsequently arrived in New Zealand; and

(c)

the person learns that it is now impossible or impracticable to go to the port or destination stated in the notice.

(9)

The person must give the Director-General notice of the following matters:

(a)

where, approximately, the craft is; and

(b)

when and where, approximately, the craft will enter New Zealand territory; and

(c)

in relation to the craft’s arrival in New Zealand,—

(i)

the approved port at which it is now intended that the craft will arrive, if it is possible and practicable to go to an approved port; or

(ii)

the destination at which it is now intended that the craft will arrive, if it is impossible or impracticable to go to an approved port.

(10)

After giving notice under subsection (9), the person must ensure that the craft goes directly to, and arrives in New Zealand at, the notified port or destination.

Regulations may elaborate duties

(11)

Regulations may—

(a)

require that a notice contain details of a craft’s previous voyages, current voyage, and future intended voyages within New Zealand territory:

(b)

require that a notice contain the details about the following that are specified in the regulations:

(i)

the craft’s crew:

(ii)

the craft’s passengers:

(iii)

goods on board the craft:

(c)

specify the length of time before a craft’s arrival in New Zealand at which the notice must be given:

(d)

require that a notice—

(i)

give different information about the matters depending on the class or description of the craft:

(ii)

give the information at different times depending on the class or description of the craft:

(e)

provide for the Director-General to require the giving of the information earlier than the time specified in the regulations if—

(i)

an emergency or an urgent situation has arisen; and

(ii)

the emergency or the urgent situation creates a risk of significant harm to human health, the environment, or the economy; and

(iii)

the earlier giving of the information is necessary to avoid or mitigate the risk.

Section 17: replaced, on 18 September 2012, by section 18 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 17(5) heading: amended, on 24 June 2014, by section 5(1) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Section 17(5A): inserted, on 24 June 2014, by section 5(2) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

17A Inward cargo report
Craft and cargo to which section applies

(1)

This section applies to cargo (whether or not all or any of the cargo is goods that are, may be, or are not, risk goods) on a craft if the craft is—

(a)

en route to, or has arrived in, New Zealand (as defined in section 2(1) of the Customs and Excise Act 1996), from a point outside New Zealand (as so defined); or

(b)

carrying goods subject to the control of the Customs (as defined in section 20 of the Customs and Excise Act 1996) brought in that craft or any other craft from a point outside New Zealand (as defined in section 2(1) of the Customs and Excise Act 1996).

Inward cargo report

(2)

Every person responsible for the carriage of the cargo on the craft must give to the Director-General, before the prescribed deadline, a report on the cargo, unless a particular person of that kind is exempted from doing so because—

(a)

that person has been advised by the Director-General that 1 or more other persons of that kind have already done so; or

(b)

under this paragraph, and for another reason, the Director-General approves that person’s being exempted from doing so.

(3)

The prescribed deadline may differ depending on the class or description of the craft, or on the class or description of the person responsible, or both, and may be earlier than the otherwise applicable prescribed deadline if—

(a)

an emergency or an urgent situation has arisen; and

(b)

the emergency or the urgent situation creates a risk of significant harm to human health, the environment, or the economy; and

(c)

the earlier giving of the report is necessary to avoid or mitigate the risk.

(4)

This section does not limit, and is not limited by, section 17(11)(b)(iii).

Persons who carry out duty to give report

(5)

A person is, for this section’s purposes, responsible for the carriage of cargo on a craft only if the person (whether or not the person owns, or has any proprietary interest of any kind in, all or any part of the cargo) is—

(a)

the person in charge of the craft; or

(b)

a cargo aggregator (as defined in subsection (11)) who, in the course of that cargo aggregator’s business, has (in or outside New Zealand territory) arranged for the carriage of the cargo on the craft under a shared space, or other negotiated volume of cargo, arrangement with the craft’s owner or operator.

(6)

The duty of the person in charge of the craft to give the report may be performed, on that person’s behalf, by—

(a)

an owner of the craft; or

(b)

an operator of the craft; or

(c)

an agent of an owner of the craft; or

(d)

an agent of an operator of the craft.

Requirements for report

(7)

The report must contain such information relating to the cargo (being information that is genuine, not erroneous in a material particular, and not misleading) as may be prescribed.

(8)

The report must be accompanied by such supporting documents (being documents each of which is genuine, not erroneous, and not misleading) as the Director-General may require.

(9)

The prescribed information relating to the cargo, or supporting documents required under subsection (8), or both, may differ depending on the class or description of the craft.

Form and manner in which report given

(10)

The person who is carrying out the duty to give the report must ensure that it is given in an approved form and manner.

Cargo aggregator defined

(11)

Cargo aggregator, in subsection (5)(b), means a person who, for reward, aggregates cargo (being cargo to be carried for different people) for carriage together on a craft—

(a)

in bulk cargo containers, or otherwise; and

(b)

under a shared space, or other negotiated volume of cargo, arrangement with the craft’s owner or operator.

Section 17A: inserted, on 24 June 2014, by section 6 of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

18 Arrival of craft in New Zealand

(1)

The person in charge of any craft that arrives at a place in New Zealand—

(a)

shall, if—

(i)

the person has not notified the Director-General under section 17; or

(ii)

the place is not the port or destination notified (or, as the case may be, last notified) under section 17,—

give the Director-General notice of where and (approximately) when the craft arrived; and

(b)

shall prevent risk goods from leaving the craft without the permission of an inspector.

(2)

The person in charge of any such craft shall, if so required by an inspector, pay a bond for such amount not exceeding $10,000 as the inspector may require to secure due compliance with subsection (1)(b).

Compare: 1967 No 50 s 18

19 Persons in charge of certain craft to obey directions of inspector or authorised person

(1)

This section applies to a craft, and place in New Zealand, if—

(a)

the craft arrives in New Zealand there; or

(b)

the craft is carrying risk goods that it was carrying when it arrived in New Zealand at some other place.

(2)

Where this section applies to a craft and place, the person in charge of the craft shall—

(a)

obey every reasonable direction given by an inspector as to—

(i)

the movement of the craft in the place; or

(ii)

the unloading or discharge of risk goods or the disembarkation of crew or passengers from the craft; or

(iii)

measures (including any bond required under section 18(2)) to ensure that any risk goods not intended to be unloaded or discharged from the craft are maintained in a secure place under the control of that person; and

(b)

within the required time or times, deliver to an inspector a report, in such manner and form, and containing such particulars verified by declaration, and with such supporting documents, as may be required; and

(c)

answer all questions relating to the craft or its cargo, crew, passengers, stores, or voyage, asked by an inspector;—

and every person disembarking from the craft shall, on request by an inspector, make his or her baggage available for inspection by the inspector.

Import health standards

Heading: replaced, on 26 November 1997, by section 12(a) of the Biosecurity Amendment Act 1997 (1997 No 89).

20 Import health permits
[Repealed]

Section 20: repealed, on 26 November 1997, by section 12(b) of the Biosecurity Amendment Act 1997 (1997 No 89).

21 Criteria for issue of import health permits
[Repealed]

Section 21: repealed, on 26 November 1997, by section 12(b) of the Biosecurity Amendment Act 1997 (1997 No 89).

22 Meaning of import health standard

(1)

An import health standard specifies requirements to be met for the effective management of risks associated with importing risk goods, including risks arising because importing the goods involves or might involve an incidentally imported new organism.

(2)

An import health standard must include requirements that apply before 1 or more of the following actions may be taken:

(a)

the risk goods are imported:

(b)

the risk goods are moved from a biosecurity control area:

(c)

the risk goods are moved from a transitional facility:

(d)

the risk goods are given a biosecurity clearance.

(3)

An import health standard may also include post-clearance requirements.

(4)

An import health standard must do the following:

(a)

specify the class or description of goods to which it applies; and

(b)

specify that it applies to goods of a class or description imported from—

(i)

a country or countries specified; or

(ii)

countries of a class or description specified; or

(iii)

a location or locations specified; or

(iv)

all countries.

(5)

An import health standard may specify requirements in any appropriate manner, including, but not limited to, 1 or more of the following:

(a)

measures to be applied to the goods before or after importation into New Zealand:

(b)

evidence or information to be provided about the measures or the goods:

(c)

a statement of the outcome to be achieved and the criteria to determine whether the outcome has been achieved.

(6)

An import health standard may specify—

(a)

information that the importer of goods to which the standard applies must provide to the Director-General:

(b)

the period before the goods’ arrival in New Zealand by which the importer must provide the information:

(c)

the form and manner in which the importer must provide the information.

(7)

Post-clearance requirements in an import health standard may also specify the following:

(a)

the class or description of persons to whom the requirements apply:

(b)

the use to which the goods must be put:

(c)

the restrictions or conditions on the use of the goods:

(d)

the duration of the requirements:

(e)

any other matters reasonably necessary for the effective implementation of the requirements.

Section 22: replaced, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

22A Process for independent review panel to be established
[Repealed]

Section 22A: repealed, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

23 From draft to recommendation

(1)

A chief technical officer begins the process of making an import health standard by analysing or assessing the risks associated with importing a class or description of goods.

(2)

If the officer considers that a standard could effectively manage the risks, the officer may draft a proposed standard.

(3)

The officer must consult the following persons about the draft standard:

(a)

the chief executive of every department whose responsibilities for human health or natural resources may be adversely affected by it; and

(b)

any other persons the officer considers to be representative of the classes of persons having an interest in it.

(4)

In the course of developing the version of the standard for recommendation to the Director-General, the officer—

(a)

must have regard to the matters raised by the persons consulted; and

(b)

must have regard to the following matters in relation to goods of the class or description proposed for coverage by the standard:

(i)

the likelihood that the goods will import organisms:

(ii)

the nature of the organisms that the goods may import:

(iii)

the possible effect on human health, the New Zealand environment, and the New Zealand economy of the organisms that the goods may import:

(iv)

New Zealand’s obligations under international agreements other than the SPS Agreement; and

(c)

must be satisfied that the requirements proposed for inclusion in the standard are consistent with New Zealand’s obligations under the SPS Agreement; and

(d)

must have regard to the following matters in relation to goods of the class or description proposed for coverage by the standard and the requirements proposed for inclusion in the standard:

(i)

the extent to which the requirements reduce or manage the likelihood of adverse effects from organisms that may be imported on the goods or in association with the goods:

(ii)

the extent to which the requirements reduce or manage the impacts of adverse effects from organisms that may be imported on the goods or in association with the goods; and

(e)

may have regard to the following matters in relation to goods of the class or description proposed for coverage by the standard and the requirements proposed for inclusion in the standard:

(i)

the direct cost of the requirements on importers:

(ii)

the direct cost of the requirements on the Crown:

(iii)

other economic factors involved in implementing the requirements:

(iv)

technical and operational factors involved in implementing the requirements; and

(f)

must ensure, in relation to post-clearance requirements proposed for inclusion in the standard, that—

(i)

there is an identifiable class of persons who will be subject to the requirements; and

(ii)

it is reasonably practicable to notify the persons who will be subject to the requirements about the requirements; and

(iii)

the requirements are reasonably capable of being enforced; and

(g)

may have regard to any other matters that the officer considers relevant to achieving the purpose of this Part.

(5)

The officer then recommends to the Director-General that the Director-General issue the standard.

Section 23: replaced, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24 Review

(1)

A person consulted under section 23(3)(b) may raise with the Director-General the question of whether scientific evidence about which the person raised a significant concern received sufficient regard in the development of the standard.

(2)

The Director-General must ensure that there is a process to establish an independent review panel to review the question of whether scientific evidence about which a person has raised a significant concern received sufficient regard in the development of the standard.

(3)

The process must deal with—

(a)

the criteria for setting up the panel; and

(b)

how the Director-General will appoint the panel members, including the knowledge and experience that members must have; and

(c)

the procedures to be followed by—

(i)

a person consulted under section 23(3)(b); and

(ii)

the panel in undertaking its review; and

(d)

the reporting requirements for the panel.

(4)

If a panel reports to the Director-General, the Director-General must, as soon as reasonably practicable,—

(a)

take the panel’s findings and recommendations into account; and

(b)

determine the issue in dispute; and

(c)

give reasons for the determination.

Section 24: replaced, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24A Issue

(1)

After receiving the officer’s recommendation under section 23(5) and complying with section 24(4), if it applies, the Director-General must decide whether or not to issue a standard.

(2)

If the Director-General decides to issue a standard, he or she must—

(a)

decide on the date on which the standard is to come into force; and

(b)

issue the standard with the date in it.

(3)

The Director-General is not required to issue a standard for goods of a particular class or description if the Director-General considers that the requirements that could be imposed in the standard would not be sufficient to enable the purpose of this Part to be achieved.

Section 24A: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24B Amendment, revocation, suspension, and reinstatement
Amendment and revocation

(1)

Sections 23 to 24A apply, to the extent to which they are relevant and reading in any necessary modifications, to—

(a)

proposed amendments to an import health standard:

(b)

a proposal to revoke an import health standard.

(2)

However, if a chief technical officer considers that the standard needs to be amended or revoked urgently or that a proposed amendment is minor, the officer is not required to comply with section 23(3).

Suspension

(3)

Subsections (4) and (5) apply if a chief technical officer believes on reasonable grounds that circumstances or knowledge have changed in such a way as to cause the requirements in an import health standard to no longer enable the purposes of this Part to be achieved.

(4)

The officer may recommend to the Director-General the suspension of the standard.

(5)

After receiving the officer’s recommendation, the Director-General may suspend the standard.

Reinstatement

(6)

Subsections (7) and (8) apply if a chief technical officer believes on reasonable grounds that circumstances or knowledge have changed in such a way as to cause the requirements in a suspended import health standard to again enable the purposes of this Part to be achieved.

(7)

The officer may recommend to the Director-General the reinstatement of the standard.

(8)

After receiving the officer’s recommendation, the Director-General may reinstate the standard.

Section 24B: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24C Publication

(1)

The Director-General must maintain a register of current import health standards.

(2)

The register must be available for the public to read free of charge—

(a)

at the office of the Director-General during normal office hours; or

(b)

on an Internet site maintained by or on behalf of the Ministry.

Section 24C: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24D Compliance
Post-clearance requirements

(1)

A person to whose goods post-clearance requirements in an import health standard apply must—

(a)

take all reasonable steps to ensure that the goods comply with the requirements; and

(b)

if required by an inspector, do the following:

(i)

provide the inspector with a declaration in an approved form setting out the steps taken to comply with the requirements; and

(ii)

provide the inspector with the declaration in an approved manner.

Permits

(2)

The Director-General may issue a permit that a standard specifies as a requirement if the Director-General considers it appropriate to do so.

Section 24D: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Craft risk management standards

Heading: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24E Meaning of craft risk management standard

(1)

A craft risk management standard specifies requirements to be met for the effective management of risks that—

(a)

are associated with the entry of craft into New Zealand territory or the arrival of craft in the EEZ; and

(b)

are not already covered by, or are not suitable to be covered by, an import health standard.

(2)

A craft risk management standard—

(a)

must specify the class or description of craft to which it applies:

(b)

may specify the class or description of activity to which it applies.

(3)

A craft risk management standard must specify that—

(a)

it applies to the risks specified in the standard; or

(b)

it applies to all risks except those managed under another enactment; or

(c)

it applies to all risks.

(4)

A craft risk management standard may specify requirements for craft—

(a)

entering New Zealand territory:

(b)

arriving in New Zealand:

(c)

arriving in the EEZ:

(d)

while they remain in New Zealand territory.

(5)

A craft risk management standard may specify requirements in any appropriate manner, including, but not limited to, 1 or more of the following:

(a)

measures to be applied:

(b)

evidence or information to be provided about the measures:

(c)

a statement of the outcome to be achieved and the criteria to determine whether the outcome has been achieved.

(6)

A craft risk management standard may specify—

(a)

information that must be provided to the Director-General:

(b)

the period before the craft’s arrival in New Zealand by which the information must be provided:

(c)

the form and manner in which the information must be provided.

Section 24E: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 24E(1)(a): amended, on 26 March 2015, by section 4 of the Biosecurity Amendment Act 2015 (2015 No 8).

24F From draft to recommendation

(1)

A chief technical officer begins the process of making a craft risk management standard by analysing or assessing the risks associated with a class or description of craft.

(2)

If the officer considers that a standard could assist in effectively managing the risks, the officer may draft a proposed standard.

(3)

The chief technical officer must consult the following persons about the draft standard:

(a)

the chief executive of every department whose responsibilities for natural resources or human health may be adversely affected by it; and

(b)

any other persons the chief technical officer considers to be representative of the classes of persons having an interest in it.

(4)

In the course of developing the version of the standard for recommendation to the Director-General, the officer—

(a)

must have regard to the matters raised by the persons consulted; and

(b)

must have regard to the following matters in relation to craft of the class or description proposed for coverage by the standard:

(i)

the likelihood that the craft will import organisms into New Zealand territory:

(ii)

the nature of the organisms that the craft may import into New Zealand territory:

(iii)

the possible effect on human health, the New Zealand environment, and the New Zealand economy of the organisms that the craft may import into New Zealand territory:

(iv)

New Zealand’s obligations under international agreements; and

(c)

must have regard to the following matters in relation to craft of the class or description proposed for coverage by the standard and the requirements proposed for inclusion in the standard:

(i)

the extent to which the requirements reduce or manage the likelihood of adverse effects from organisms that may be imported in or on the craft:

(ii)

the extent to which the requirements reduce or manage the impacts of adverse effects from organisms that may be imported in or on the craft; and

(d)

may have regard to the following matters in relation to craft of the class or description proposed for coverage by the standard and the requirements proposed for inclusion in the standard:

(i)

the direct cost of the requirements on owners or operators, or the persons in charge, of craft:

(ii)

the direct cost of the requirements on the Crown:

(iii)

other economic factors involved in implementing the requirements:

(iv)

technical and operational factors involved in implementing the requirements; and

(e)

may have regard to any other matters that the officer considers relevant to achieving the purpose of this Part.

(5)

The officer then recommends to the Director-General that the Director-General issue the standard.

Section 24F: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24G Issue

(1)

After receiving the officer’s recommendation under section 24F(5), the Director-General must decide whether or not to issue a standard.

(2)

If the Director-General decides to issue a standard, he or she must—

(a)

decide on the date on which the standard is to come into force; and

(b)

issue the standard with the date in it.

Section 24G: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24H Amendment, revocation, suspension, and reinstatement
Amendment and revocation

(1)

Sections 24F and 24G apply, to the extent to which they are relevant and reading in any necessary modifications, to—

(a)

proposed amendments to a craft risk management standard:

(b)

a proposal to revoke a craft risk management standard.

(2)

However, if a chief technical officer considers that the standard needs to be amended or revoked urgently or that a proposed amendment is minor, the officer is not required to comply with section 24F(3).

Suspension

(3)

Subsections (4) and (5) apply if a chief technical officer believes on reasonable grounds that circumstances or knowledge have changed in such a way as to cause the requirements in a craft risk management standard to no longer enable the purposes of this Part to be achieved.

(4)

The officer may recommend to the Director-General the suspension of the standard.

(5)

After receiving the officer’s recommendation, the Director-General may suspend the standard.

Reinstatement

(6)

Subsections (7) and (8) apply if a chief technical officer believes on reasonable grounds that circumstances or knowledge have changed in such a way as to cause the requirements in a suspended craft risk management standard to again enable the purposes of this Part to be achieved.

(7)

The officer may recommend to the Director-General the reinstatement of the standard.

(8)

After receiving the officer’s recommendation, the Director-General may reinstate the standard.

Section 24H: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24I Publication

(1)

The Director-General must maintain a register of current craft risk management standards.

(2)

The register must be available for the public to read free of charge—

(a)

at the office of the Director-General during normal office hours; or

(b)

on an Internet site maintained by or on behalf of the Ministry.

Section 24I: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24J Compliance

An operator, or the person in charge, of a craft to which a craft risk management standard applies must—

(a)

take all reasonable steps to comply with the standard; and

(b)

if required by an inspector, do the following:

(i)

provide the inspector with a declaration in an approved form setting out the steps taken to comply with the standard; and

(ii)

provide the inspector with the declaration in an approved manner.

Section 24J: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

24K Craft risk management plans

(1)

This section applies if a person—

(a)

is an owner or an operator, or the person in charge, of a craft; and

(b)

wants to operate under a craft risk management plan containing requirements that are equivalent to but different from those specified in the applicable craft risk management standard.

(2)

The person must—

(a)

make the plan; and

(b)

submit it to the Director-General for approval.

(3)

The Director-General may approve the plan if satisfied that the risks can be managed under the plan to the same extent as, or a greater extent than, they can be managed under the applicable craft risk management standard.

(4)

The Director-General must include in the approval of the plan a statement of the class or description of activity to which it applies.

(5)

The Director-General may include in the approval of the plan a statement of the period for which the approval is valid.

(6)

If the Director-General ceases to be satisfied under subsection (3), the Director-General may—

(a)

withdraw the approval; or

(b)

follow the following process:

(i)

the Director-General informs the person of the aspects of the plan that have ceased to satisfy the Director-General; and

(ii)

the person may submit draft amendments to the Director-General; and

(iii)

the Director-General may approve the draft amendments or require other amendments; and

(iv)

whether or not the person submits draft amendments to the Director-General, the Director-General may withdraw approval of the plan if it is not amended to the Director-General’s satisfaction within a reasonable time.

(7)

Throughout the period that the plan has the approval of the Director-General, a person who complies with the plan for an activity to which the plan applies does not have to comply also with the applicable craft risk management standard for the activity.

(8)

An operator, or the person in charge, of a craft to which a craft risk management plan applies must—

(a)

comply with the plan; and

(b)

if required by an inspector, do the following:

(i)

provide the inspector with a declaration in an approved form setting out the steps taken to comply with the plan; and

(ii)

provide the inspector with the declaration in an approved manner.

Section 24K: inserted, on 18 September 2012, by section 20 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Clearance of risk goods

25 Goods to be cleared for entry into New Zealand

(1)

No person may cause or permit any uncleared goods imported on any craft to leave that craft, except to proceed to a transitional facility or a biosecurity control area.

(2)

A person may cause or permit uncleared goods that are in a transitional facility or biosecurity control area to leave the facility or area only if subsection (3) or (4) applies.

(3)

Uncleared goods that are in a transitional facility or biosecurity control area may leave the facility or area to be exported from New Zealand, if an inspector authorises their export.

(4)

Uncleared goods that are in a transitional facility or biosecurity control area may leave the facility or area if an inspector authorises their movement to another transitional facility or biosecurity control area or a containment facility.

(5)

An authorisation may—

(a)

specify how the goods must be moved:

(b)

specify a time period within which the goods must be moved:

(c)

specify how the goods must be dealt with at their destination.

(6)

An authorisation may impose conditions.

(7)

An authorisation may be given to—

(a)

a facility operator:

(b)

a person in charge of the goods in any capacity at a particular time:

(c)

another person in charge of the goods in any capacity at the same or a later time:

(d)

a person in possession of the goods at a particular time:

(e)

another person in possession of the goods at the same or a later time.

(8)

A person to whom an inspector gives an authorisation must—

(a)

act within its terms; and

(b)

take all reasonable steps to communicate its terms to all other persons who come into possession or control of the goods before they are given a biosecurity clearance; and

(c)

take all other reasonable steps to ensure that other persons act within its terms.

(9)

A person who comes into possession or control of the goods before they are given a biosecurity clearance and has had the terms of the authorisation communicated under subsection (8)(b) must act within the terms.

Section 25: replaced, on 26 November 1997, by section 14 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 25(2): replaced, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 25(3): replaced, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 25(4): inserted, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 25(5): inserted, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 25(6): inserted, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 25(7): inserted, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 25(8): inserted, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 25(9): inserted, on 18 September 2012, by section 21 of the Biosecurity Law Reform Act 2012 (2012 No 73).

26 Clearances by inspectors

(1)

An inspector must not give a clearance for the entry into New Zealand of goods contrary to section 27 but may give a clearance if satisfied as required by section 27.

(2)

An inspector must not give a clearance for the entry into New Zealand of goods contrary to section 28.

Section 26: replaced, on 18 September 2012, by section 22 of the Biosecurity Law Reform Act 2012 (2012 No 73).

27 Requirements for clearances

(1)

An inspector must not give a clearance for goods unless satisfied—

(a)

that the goods are not risk goods; or

(b)

that—

(i)

the goods are of a kind that would not usually be considered as risk goods; and

(ii)

on or after arrival in New Zealand, the goods may have harboured or contained a harmful organism; and

(iii)

a chief technical officer has issued guidelines, or given directions, on measures that may be applied to manage the risks from the organism effectively; and

(iv)

the measures have been properly applied; or

(c)

that—

(i)

the goods are goods to which an import health standard applies; and

(ii)

the goods comply with the requirements in the standard for receiving a clearance; or

(d)

that—

(i)

the goods are goods to which an import health standard applies; and

(ii)

the goods do not comply with the requirements in the standard for receiving a clearance; and

(iii)

a chief technical officer has issued guidelines, or given directions, on measures, different from those in the standard, that may be applied to manage effectively risks of the kind arising from the non-compliance; and

(iv)

the measures have been properly applied.

(2)

An inspector satisfied as required by subsection (1) must not give a clearance for goods if he or she is aware of any of the following that makes it unwise for them to be given a clearance:

(a)

circumstances or documents associated with the goods:

(b)

circumstances or documents associated with the importation of the goods:

(c)

circumstances or documents associated with the craft on which the goods were imported.

(3)

The Director-General must ensure that the following information is available on an Internet site maintained by or on behalf of the Ministry:

(a)

the guidelines and directions referred to in subsection (1)(b)(iii) and (d)(iii):

(b)

the following details about decisions to give a clearance to goods under subsection (1)(d):

(i)

the goods given clearance; and

(ii)

the nature of the non-compliance with the requirements in an applicable import health standard; and

(iii)

the reasons for giving the clearance.

Section 27: replaced, on 18 September 2012, by section 23 of the Biosecurity Law Reform Act 2012 (2012 No 73).

27A Post-clearance conditions on clearances

(1)

An inspector who gives a biosecurity clearance under section 26 may impose post-clearance conditions on the goods.

(2)

The inspector may impose only such conditions as are approved by a chief technical officer specifically or generally.

(3)

A chief technical officer must not approve conditions that are inconsistent with relevant post-clearance requirements of an applicable import health standard.

(4)

The conditions may,—

(a)

specify the use to which the goods must be put:

(b)

specify the restrictions or conditions on the use of the goods:

(c)

specify how long a restriction or condition lasts by reference to a period of time, a date, or an event:

(d)

specify how the goods must be managed or disposed of:

(e)

specify the place or area within which the goods must be kept, managed, or used:

(f)

require notification of a change in circumstances that affects the goods:

(g)

require reporting to an inspector or another specified person in specified circumstances on specified matters:

(h)

deal with any other matters reasonably necessary for the effective management of the risks associated with the goods.

Section 27A: inserted, on 18 September 2012, by section 23 of the Biosecurity Law Reform Act 2012 (2012 No 73).

28 Restrictions on giving clearances

(1)

An inspector must not give a biosecurity clearance for goods that are or contain an organism specified in Schedule 2 of the Hazardous Substances and New Organisms Act 1996 or for a new organism.

(1A)

However, subsection (1) does not prohibit an inspector from giving a biosecurity clearance for goods the importation of which involves, or might involve, an incidentally imported new organism.

(2)

Where any new organism is an organism for which—

(a)

the Authority has given approval for importation into containment in accordance with sections 42 or 45 of the Hazardous Substances and New Organisms Act 1996: and

(b)

there is in existence a containment facility approved as meeting the standard set by the Authority; and

(c)

the organism is able to go to that facility,—

any inspector may authorise that organism to go to that containment facility.

Section 28: replaced, on 29 July 1998, by section 130 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 28(1A): inserted, on 9 April 2008, by section 7 of the Biosecurity Amendment Act (No 2) 2008 (2008 No 21).

28A Dealing with suspected new organism

(1)

Any inspector may seize any organism which the inspector has reason to believe may be a new organism.

(2)

The provisions of sections 116 and 117 apply to any organism seized under subsection (1) as if that organism were unauthorised goods.

(3)

A chief technical officer may permit an organism seized under this section to be held in the custody of the Director-General for so long as is necessary for the importer to apply to the Authority for a determination under section 26 of the Hazardous Substances and New Organisms Act 1996 that the organism is, or is not, a new organism.

(4)

Where an organism is held in accordance with this section, the estimated costs and expenses of the custody and maintenance of the organism must be paid in advance to the Director-General by the importer.

(5)

When the Director-General’s custody of an organism ceases, the Director-General must calculate the actual and reasonable costs and expenses of holding the organism and, if those actual and reasonable costs—

(a)

exceed the amount paid in accordance with subsection (4), the balance of the costs and expenses are recoverable as a debt due to the Crown from the importer:

(b)

are less than the amount paid in accordance with subsection (4), the overpayment must be refunded to the importer.

(6)

Where any organism held under subsection (3) is declared to be a new organism, the chief technical officer may, either generally or in any particular case, give any reasonable directions as to the disposal of, or any other dealing with, that organism, but must not give a biosecurity clearance for that organism.

Section 28A: inserted, on 29 July 1998, by section 130 of the Biosecurity Amendment Act 1997 (1997 No 89).

28B Biosecurity clearance for certain new organisms and qualifying organisms

Section 28 does not apply to organisms approved under the following sections of the Hazardous Substances and New Organisms Act 1996:

Section 28B: replaced, on 18 September 2012, by section 24 of the Biosecurity Law Reform Act 2012 (2012 No 73).

29 Restricted organisms to be contained

(1)

No person may cause or permit any restricted organism that is in a transitional facility, a biosecurity control area, or a containment facility to leave that facility or area, except—

(a)

to proceed, in accordance with the authority of an inspector, to a transitional facility, a biosecurity control area, or a containment facility; or

(b)

in accordance with the authority of an inspector, to be exported from New Zealand.

(2)

Authority to move a restricted organism given by an inspector in accordance with this section may be given subject to conditions.

Section 29: replaced, on 26 November 1997, by section 16 of the Biosecurity Amendment Act 1997 (1997 No 89).

Inspections, declarations, etc

30 Uncleared imports

(1)

An inspector may require a person arriving in New Zealand to surrender to an inspector uncleared goods that are risk goods that the person has in his or her possession or under his or her control.

(1A)

The purpose for which the inspector may exercise the power in subsection (1) is to enable the goods to be disposed of under this Act.

(1B)

An inspector may require a person arriving in New Zealand to make a declaration about 1 or more of the following in a manner specified by the inspector:

(a)

the person’s name:

(b)

the person’s date of birth:

(c)

the person’s nationality:

(d)

the person’s country of birth:

(e)

the person’s occupation:

(f)

the person’s passport number:

(g)

any evidence of identity that the person has that is not a passport:

(h)

the person’s residential address and contact details:

(i)

where and when the person has travelled before and where and when the person will travel in future:

(j)

whether the person has goods of a kind specified in the declaration in his or her possession, including as part of his or her personal effects or baggage:

(k)

the place where goods of a kind specified in the declaration were acquired:

(l)

the origin of goods of a kind specified in the declaration:

(m)

details of the flight or voyage on which the person arrived in New Zealand.

(2)

Every person arriving in New Zealand shall permit any inspector to inspect and examine any specified goods in his or her possession as part of his or her personal effects or baggage, and afford to the inspector all reasonable facilities and assistance in carrying out the inspection and examination.

Compare: 1967 No 50 s 22

Section 30(1): replaced, on 18 September 2012, by section 25 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30(1A): inserted, on 18 September 2012, by section 25 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30(1B): inserted, on 18 September 2012, by section 25 of the Biosecurity Law Reform Act 2012 (2012 No 73).

30A Processing unaccompanied goods

(1)

Where any imported goods other than goods inspected, examined, or surrendered in accordance with section 30 or section 35, are in a transitional facility or biosecurity control area, an inspector may, for the purpose of determining whether the goods are, or contain, risk goods,—

(a)

open any bag, box, parcel, container, or other thing containing the goods:

(b)

inspect the goods.

(2)

An inspector may enter a transitional facility or biosecurity control area for the purposes of subsection (1), but must do so—

(a)

at a reasonable time or times; and

(b)

in the manner required by section 112.

(3)

Subsections (4) to (9) apply to goods in a transitional facility or biosecurity control area that—

(a)

are risk goods; or

(b)

contain risk goods; or

(c)

are unauthorised goods; or

(d)

contain unauthorised goods.

(4)

A chief technical officer may give directions that—

(a)

may apply to the particular goods or to goods of their kind:

(b)

may be about disposal, treatment, or any other dealing:

(c)

must be reasonable.

(5)

A person to whom the directions are given must comply with them.

(6)

A chief technical officer may offer the importer or owner of the goods the option of exporting the goods or returning them to their place of origin at the importer’s or owner’s expense.

(7)

A chief technical officer may—

(a)

permit the goods to be held in the Director-General’s custody for as long as is necessary for the importer to obtain a biosecurity clearance:

(b)

require payment in advance of the estimated costs and expenses of the custody and maintenance of the goods.

(8)

A chief technical officer exercising powers under any of subsections (4), (6), or (7) must, as far as practicable, act in a manner that is consistent with avoiding or minimising loss to the importer or owner of the goods while achieving the purpose of this Part.

(9)

If the goods in a transitional facility or biosecurity control area are an endangered species, as defined in section 3 of the Trade in Endangered Species Act 1989, a chief technical officer must—

(a)

consult the Director-General of Conservation about the disposal of the goods; and

(b)

dispose of the goods as the chief technical officer thinks fit.

Section 30A: inserted, on 26 November 1997, by section 17 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 30A(1): amended, on 8 July 2003, by section 5 of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 30A(2): replaced, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30A(3): replaced, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30A(4): inserted, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30A(5): inserted, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30A(6): inserted, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30A(7): inserted, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30A(8): inserted, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 30A(9): inserted, on 18 September 2012, by section 26 of the Biosecurity Law Reform Act 2012 (2012 No 73).

31 Boarding of craft

(1)

Subject to subsection (2), an inspector may, for the purpose of ascertaining the presence of risk goods, require the person in charge of—

(a)

any craft, used for the transportation of people or goods, or both, by air, that is within New Zealand territory; or

(b)

any craft, used for the transportation of people or goods, or both, by sea, that is within the area of sea adjacent to New Zealand and bounded by the outer limits of the contiguous zone of New Zealand—

to—

(c)

bring the craft to for boarding on being so directed by an inspector; and

(d)

by all reasonable means, facilitate the boarding of the craft by an inspector; and

(e)

by all reasonable means, facilitate the inspection of the craft, including its exterior surfaces, by an inspector.

(2)

A craft carrying an inspector who gives a direction under this section must be clearly identifiable as being a craft in the service of the Crown.

Section 31(1): replaced, on 1 August 1996, by section 2 of the Biosecurity Amendment Act (No 2) 1996 (1996 No 78).

Section 31(1)(d): replaced, on 18 September 2012, by section 27 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 31(1)(e): inserted, on 18 September 2012, by section 27 of the Biosecurity Law Reform Act 2012 (2012 No 73).

32 Powers relating to craft

(1)

Subject to subsection (2), any person who has the power under any provision in this Act to enter any craft and who has reasonable grounds to suspect that a craft in New Zealand territory contains any unwanted organism may direct the master or other person in charge of the craft to—

(a)

move it to and stop it at any place within New Zealand territory; or

(b)

move it and keep it outside New Zealand territory; or

(c)

take any specified action on or in respect of the craft.

(2)

Before exercising a power conferred by subsection (1), the person who proposes to exercise the power shall consult the chief executives of—

(a)

the New Zealand Customs Service; and

(b)

the Ministry for Primary Industries.

Section 32(2)(a): amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).

33 Risk goods on board craft

(1)

Where there are any risk goods on board or attached to the outside of a craft that has entered New Zealand territory from outside New Zealand territory, an inspector may direct the master or other person in charge of the craft to take (as the master or person thinks fit) one of the following steps:

(a)

deal with the goods in a manner specified by the inspector while the craft is in New Zealand territory; or

(b)

move the craft outside New Zealand territory (immediately, or within a period specified by the inspector); or

(c)

destroy the goods in a place and manner approved by the inspector for the purpose.

(2)

Subject to subsection (3), where the master or person in charge of a craft fails or refuses to comply with a direction under subsection (1), any inspector may—

(a)

direct the master or other person in charge of the craft to move the craft outside New Zealand territory (immediately, or within a period specified by the inspector); or

(b)

seize, destroy, or deal with the risk goods concerned.

(3)

Where—

(a)

an inspector gives a direction under subsection (1) in respect of goods of a particular kind or description on board or attached to the outside of a craft of a particular kind or description; and

(b)

there are for the time being in force under this Act regulations prescribing the manner in which risk goods of that kind or description should be dealt with while on board or attached to the outside of a craft of that kind or description,—

compliance with those regulations shall be deemed to be a sufficient compliance with the direction.

(4)

Nothing in this section limits or affects the generality of section 32.

Section 33(1): amended, on 18 September 2012, by section 28(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 33(2)(b): amended, on 18 September 2012, by section 28(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 33(3)(a): amended, on 18 September 2012, by section 28(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 33(3)(b): amended, on 18 September 2012, by section 28(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

34 Disembarkation

(1)

For the purpose of ascertaining the presence of or controlling any risk goods, a person on board a craft that has arrived in New Zealand shall obey every reasonable direction given to the person concerning disembarkation—

(a)

by an inspector; or

(b)

on the direction of an inspector, by the person in charge of the craft or a crew member of the craft.

(2)

Unless otherwise directed by an inspector, every person arriving in New Zealand shall—

(a)

go directly to a biosecurity control area; and

(b)

remain there for such reasonable time as an inspector may require to ascertain the presence of any risk goods.

(3)

This subsection applies to a person and a biosecurity control area if the person is required by subsection (2) to go directly to the biosecurity control area and remain there for such reasonable time as an inspector may require to ascertain the presence of any risk goods.

(4)

An inspector, and any person the inspector calls to the inspector’s assistance, may use such force as is reasonably necessary to—

(a)

compel to go to the biosecurity control area concerned a person to whom subsection (3) applies who has been directed by the inspector to go directly there; but—

(i)

has failed or refused to do so within a reasonable time of being so directed; or

(ii)

has attempted to go instead to some other place; or

(b)

detain in the biosecurity control area concerned a person to whom subsection (3) applies who—

(i)

has been required by the inspector to remain there for a reasonable time to ascertain the presence of any risk goods; but

(ii)

has attempted to leave the biosecurity control area in contravention of the requirement; or

(c)

stop, return to, and detain in the biosecurity control area concerned a person to whom subsection (3) applies who has gone to the biosecurity control area, and—

(i)

has been required by the inspector to remain there for a reasonable time to ascertain the presence of any risk goods; but

(ii)

has left the biosecurity control area in contravention of the requirement; or

(d)

stop, return to, and detain in the biosecurity control area concerned a person to whom subsection (3) applies who has gone to the biosecurity control area, but left before the inspector has—

(i)

required the person to remain there; or

(ii)

had a reasonable time to ascertain the presence of any risk goods.

(5)

Every person who has disembarked from a craft that has arrived in New Zealand, whether or not the person boarded the craft in New Zealand, shall make his or her accompanying baggage available for inspection by an inspector.

Compare: 1967 No 50 s 22

35 Duties of persons in biosecurity control areas

(1)

A person in a biosecurity control area must answer all questions asked by an inspector about—

(a)

the person’s identity:

(b)

the person’s residential address and contact details:

(c)

the presence, nature, origin, or itinerary of goods in the person’s possession or under his or her immediate control:

(d)

any other matter on which the inspector requires information.

(2)

The purpose for which the inspector may ask for information under subsection (1)(d) is to exercise a power or carry out a function or duty under this Part.

(3)

A person in a biosecurity control area must, if asked to do so by an inspector, provide the inspector with the person’s passport or any evidence of identity that the person has that is not a passport.

(4)

An inspector to whom a passport or evidence of identity is provided under subsection (3)—

(a)

may take a copy; and

(b)

may keep the copy for a lawful purpose; and

(c)

must return the passport or evidence immediately after—

(i)

inspecting it; or

(ii)

inspecting and copying it.

(5)

A person in a biosecurity control area must, if asked to do so by an inspector, make available to an inspector goods in the person’s possession or under his or her immediate control.

(6)

The purpose for which an inspector may make a request under subsection (5) is to enable an inspector to examine the goods to ascertain whether or not risk goods are present.

(7)

A person in a biosecurity control area must comply with a reasonable direction of an inspector in relation to risk goods.

Section 35: replaced, on 18 September 2012, by section 29 of the Biosecurity Law Reform Act 2012 (2012 No 73).

35A Duty of persons to remain in biosecurity control areas

(1)

This section applies to a person in a biosecurity control area who has arrived in New Zealand.

(2)

The person must remain in the area until the person’s arrival in New Zealand is processed by the taking of whichever of the following steps are relevant:

(a)

consideration by an officer authorised under the Act of the applicability to the person of powers or duties in the Act:

(b)

a request by an inspector that an officer not present at the area consider exercising a particular power, or carrying out a particular duty, in the Act that the inspector considers—

(i)

may be applicable to the person; and

(ii)

may not be exercised or carried out by an officer present; and

(iii)

may be exercised or carried out by the officer to whom the request is made:

(c)

the lapse of time following the request that is reasonable to allow a response from the officer to whom the request is made:

(d)

the exercise of a particular power, or the carrying out of a particular duty, in the Act in response to the request if the requested officer decides to exercise the power or carry out the duty:

(e)

the exercise, as far as practicable, in the area of the powers under the Act that are required to be exercised in the area:

(f)

the carrying out, as far as practicable, in the area of the duties under the Act that are required to be carried out in the area:

(g)

compliance by the person with all obligations imposed on him or her under the Act relating to his or her arrival in New Zealand.

(3)

An inspector may direct a person to comply with the person’s duties under this section.

Definition for this section

(4)

In this section, Act means the Customs and Excise Act 1996 or the Immigration Act 2009.

Section 35A: inserted, on 18 September 2012, by section 29 of the Biosecurity Law Reform Act 2012 (2012 No 73).

36 Movement of risk goods

Any person who moves risk goods within a biosecurity control area shall comply with all reasonable directions given to that person by an inspector concerning the movement of those goods.

Section 36: amended, on 18 September 2012, by section 30 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 36: amended, on 26 November 1997, by section 18 of the Biosecurity Amendment Act 1997 (1997 No 89).

37 Approval of ports as places of first arrival

(1)

The Director-General may, by written notice to the operator of a port, approve a port as a place of first arrival for all craft or craft of specified kinds or descriptions if satisfied that there are available, and capable of operating to approved standards, all arrangements, facilities (other than office and parking facilities), and systems that the Director-General for the time being reasonably requires, in relation to that port, for the purposes of this Part.

(2)

An approval given under subsection (1) may limit the arrival of craft to arrivals for the purposes specified in the approval.

(3)

The Director-General must, when considering the arrangements, facilities, and systems available at a port in accordance with subsection (1), have regard to—

(a)

the alternative arrangements, facilities, and systems that are or could be made available; and

(b)

the cost to the port operator of each alternative arrangement, facility, and system; and

(c)

the extent to which each alternative arrangement, facility, and system would assist the Director-General in managing the risks associated with the importation of risk goods.

(4)

All arrangements, facilities (other than office or parking facilities), and systems required in accordance with subsection (1) are available for use by the Crown at no expense to the Crown.

(5)

The Director-General must,—

(a)

within 28 days after approving a port in accordance with subsection (1), publish in the Gazette a notice specifying the name of the port, the day on which it was so approved, any limitation on the kind or description of craft for which the port was approved, any limitation on arrivals to specified purposes, and a place where the notice of approval may be inspected; and

(b)

at all reasonable times make the written notice available for inspection at the place specified in the Gazette notice.

(6)

The Director-General must be satisfied of the matters referred to in subsection (1), whether or not all of the arrangements, facilities, and systems are under the control of the operator of the port concerned.

(7)

Before taking any action under this section, the Director-General must consult in accordance with section 37D.

(8)

Where approval is declined under this section, the Director-General must give reasons for his or her decision.

(9)

Where a decision under this section is made by a person acting under the delegated authority of the Director-General, the port operator is entitled to have the decision reviewed by the Director-General.

Section 37: replaced, on 26 November 1997, by section 19 of the Biosecurity Amendment Act 1997 (1997 No 89).

37A Approval of arrival of craft at port not approved as place of first arrival

(1)

A person may request the Director-General’s approval for the arrival of a craft at a port that is not approved under section 37 as a place of first arrival for—

(a)

any craft; or

(b)

craft of the kind or description of the craft to which the request relates; or

(c)

craft arriving for the purpose that the craft to which the request relates is arriving for.

(2)

The Director-General may approve the arrival of the craft at the port if he or she is satisfied that imposing conditions on the arrival of the craft at the port can manage the risks associated with—

(a)

the importation of risk goods; and

(b)

the entry of the craft into New Zealand territory.

(2A)

The Director-General may give his or her approval subject to the necessary conditions.

(3)

Before taking action under this section, the Director-General must consult in accordance with section 37D.

Section 37A: inserted, on 26 November 1997, by section 19 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 37A(1): replaced, on 18 September 2012, by section 31 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 37A(2): replaced, on 18 September 2012, by section 31 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 37A(2A): inserted, on 18 September 2012, by section 31 of the Biosecurity Law Reform Act 2012 (2012 No 73).

37B Suspension of approval

(1)

If the Director-General is no longer satisfied that the provisions of section 37(1) are being met for a port, the Director-General may,—

(a)

by written notice to its operator, suspend the port’s approval under section 37(1) for a specified period or until a specified action is taken; or

(b)

by written notice in the Gazette, revoke the port’s approval under section 37(1); or

(c)

by written notice in the Gazette and written notice to the port’s operator, vary the port’s approval under section 37(1) by varying the kind or description of craft for which the port is approved as a place of first arrival, or by varying the purposes of arrival for which the port is approved as a place of first arrival.

(2)

Before taking action under this section, the Director-General must consult in accordance with section 37D.

(3)

In exercising a power under this section, the Director-General must observe the rules of natural justice.

(4)

Where a decision under this section is made by a person acting under the delegated authority of the Director-General, the port operator is entitled to have the decision reviewed by the Director-General.

Section 37B: inserted, on 26 November 1997, by section 19 of the Biosecurity Amendment Act 1997 (1997 No 89).

37C Port operators

(1)

Nothing in section 37 authorises a port operator to require any user of a port—

(a)

to use or patronise facilities under the operator’s control; or

(b)

to contribute, directly or indirectly, towards the expense of operating facilities under the operator’s control that the user has not used or patronised.

(2)

No operator of a port may wilfully or recklessly represent that the port is an approved place of first arrival for any craft other than craft specified in the approval.

(3)

No operator may wilfully or recklessly represent that the port is an approved place of first arrival where no approval has been given or an approval has been suspended or revoked.

Section 37C: inserted, on 26 November 1997, by section 19 of the Biosecurity Amendment Act 1997 (1997 No 89).

37D Director-General to consult chief executives

The Director-General must not take any action under sections 37, 37A, or 37B without consulting the chief executives of—

(a)

the New Zealand Customs Service; and

(b)

the Ministry of Health; and

(c)

the New Zealand Police; and

(d)

the Ministry of Transport; and

(e)

every other department of State whose operations may, in the Director-General’s opinion, be affected by the action.

Section 37D: inserted, on 26 November 1997, by section 19 of the Biosecurity Amendment Act 1997 (1997 No 89).

38 Importers’ records

(1)

An importer must keep records about goods the importer intends to import or imports, in accordance with regulations that may specify—

(a)

the class or description of importer who must keep the records, which may be a class or description that is narrower than the definition of importer in section 2A:

(b)

the class or description of goods about which records must be kept:

(c)

the class or description of records that must be kept:

(d)

the manner in which the records must be kept:

(e)

the period for which the records must be kept.

(2)

The importer must make the records available to an inspector if an inspector requires them to be made available during the period that the importer must keep them.

Section 38: replaced, on 18 September 2012, by section 32 of the Biosecurity Law Reform Act 2012 (2012 No 73).

39 Approval and cancellation of approval of transitional facilities and containment facilities

(1)

The Director-General may approve standards for building, maintaining, or operating transitional facilities.

(1A)

The Director-General must consult the persons the Director-General considers representative of the classes of persons likely to have an interest in a proposed standard before approving the standard.

(2)

Any person may apply in an approved form and manner to the Director-General for the approval of any place as a transitional facility or a containment facility.

(2A)

The Director-General must consider every application for approval of a place as a containment facility made under subsection (2) and,—

(a)

if the application complies with the requirements of this Act; and

(b)

if the place meets the relevant standards approved by the Authority in accordance with the Hazardous Substances and New Organisms Act 1996,—

the Director-General may approve the place as a containment facility.

(3)

The Director-General must consider every application for approval of a place as a transitional facility made under subsection (2) and—

(a)

if the application complies with the requirements of this Act; and

(b)

if the place meets the relevant standards approved under subsection (1),—

the Director-General may approve the place as a transitional facility for the purpose specified in the approval.

(3A)

The Director-General may approve the place as a transitional facility on conditions that the Director-General considers necessary or desirable.

(3B)

The Director-General may amend conditions in an approval, remove conditions from an approval, or add conditions to an approval when he or she considers it necessary or desirable to do so.

(4)

A transitional facility approval given in accordance with this section must, where the approval specifies, expire at a time specified in the approval or upon the occurrence of an event specified in the approval.

(5)

A transitional facility approval given in accordance with this section may specify the uncleared goods that may be held in the facility.

(6)

A containment facility approval given in accordance with this section may specify the organisms that may be held in the facility.

(7)

The Director-General may, by written notice to the facility operator, cancel an approval for a transitional facility, or a containment facility, or a part of an approval relating to 1 or more uses of a transitional facility, where—

(a)

the facility no longer complies with the relevant standards; or

(b)

the Director-General is satisfied that the facility is no longer used for the purpose or 1 or more of the purposes specified in the approval.

(8)

In exercising a power under subsection (7), the Director-General must observe the rules of natural justice.

(9)

The Director-General may, if he or she thinks fit and without an application from any person, declare specified parts of ports approved as places of first arrival to be transitional facilities.

Section 39: replaced, on 26 November 1997, by section 20 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 39 heading: replaced, on 18 September 2012, by section 33(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 39(1): replaced, on 18 September 2012, by section 33(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 39(1A): inserted, on 18 September 2012, by section 33(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 39(2): amended, on 18 September 2012, by section 33(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 39(2A): inserted, on 29 July 1998, by section 131(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 39(3): amended, on 29 July 1998, by section 131(1)(b) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 39(3): amended, on 29 July 1998, by section 131(1)(c) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 39(3A): inserted, on 18 September 2012, by section 33(4) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 39(3B): inserted, on 18 September 2012, by section 33(4) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 39(7): amended, on 18 September 2012, by section 33(5) of the Biosecurity Law Reform Act 2012 (2012 No 73).

40 Approval and cancellation of approval of facility operators

(1)

Any person may apply, in an approved form and manner, to the Director-General for approval as the operator of a specified transitional facility or specified containment facility.

(2)

Every application must be accompanied by such further information as the Director-General may require.

(3)

The Director-General must consider every application made under subsection (1).

(3A)

In considering an application, the Director-General may take the matters in subsection (3B) into account in relation to—

(a)

the applicant:

(b)

a person involved in the management of the applicant:

(c)

an organisation of which the applicant is or was a director or manager.

(3B)

The matters are—

(a)

a serious or repeated failure to comply in the past with a duty imposed by this Act on a facility operator:

(b)

a conviction for an offence against this Act, the Customs and Excise Act 1996, the Hazardous Substances and New Organisms Act 1996, or any other enactment that regulates the importation of goods:

(c)

a conviction in New Zealand or another country for an offence relating to fraud or dishonesty:

(d)

a conviction in New Zealand or another country for an offence relating to a business of a kind that is regulated under this Act or any other enactment administered by the Ministry and involving—

(i)

management control in New Zealand or another country:

(ii)

business activities in New Zealand or another country:

(e)

any circumstances that could lead to a failure to comply in the future with a duty imposed by this Act on a facility operator.

(3C)

The Director-General may approve the applicant as a facility operator if satisfied that the applicant—

(a)

is a fit and proper person to be the operator of the transitional facility or containment facility specified in the application; and

(b)

is able to comply with the operating standards for the facility.

(3D)

The Director-General may approve the applicant as a facility operator—

(a)

on the condition that the operator will comply with applicable standards; and

(b)

on any other conditions that the Director-General considers necessary or desirable.

(3E)

The Director-General may amend conditions in an approval, remove conditions from an approval, or add conditions to an approval when he or she considers it necessary or desirable to do so.

(4)

The Director-General may, by written notice to a person, and whether or not the Director-General has suspended the person’s approval under section 40D, cancel that person’s approval to operate a specified transitional facility or a specified containment facility where—

(a)

the person is no longer operating the facility in compliance with the operating standards for the facility; or

(b)

the person has ceased to act as operator of the facility; or

(c)

the person is no longer a fit and proper person to operate the facility.

(5)

In exercising a power under subsection (4), the Director-General must observe the rules of natural justice.

(6)

A facility operator must comply with—

(a)

all the conditions of the facility approval and the operator approval; and

(b)

all directions given by an inspector relating to goods held at the facility; and

(c)

all restrictions relating to the release of goods held at the facility communicated to the operator by an inspector.

Section 40: replaced, on 26 November 1997, by section 21 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 40 heading: replaced, on 18 September 2012, by section 34(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(1): amended, on 18 September 2012, by section 34(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(3): replaced, on 18 September 2012, by section 34(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(3A): inserted, on 18 September 2012, by section 34(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(3B): inserted, on 18 September 2012, by section 34(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(3C): inserted, on 18 September 2012, by section 34(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(3D): inserted, on 18 September 2012, by section 34(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(3E): inserted, on 18 September 2012, by section 34(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(4): amended, on 18 September 2012, by section 34(4) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 40(6): replaced, on 18 September 2012, by section 34(5) of the Biosecurity Law Reform Act 2012 (2012 No 73).

40A Suspension of facility approval

(1)

The Director-General may suspend an approval given under section 39 if the Director-General has reasonable grounds to believe that an applicable standard has not been complied with.

(2)

The maximum period of the suspension is 3 months.

(3)

The Director-General may extend the period of a suspension if the Director-General has reasonable grounds to believe that the non-compliance with the applicable standard has not been rectified.

(4)

The period of extension must not exceed 3 months.

(5)

The Director-General must lift a suspension or extension before its period ends if the Director-General has reasonable grounds to believe that the non-compliance occasioning the suspension has been rectified.

(6)

In exercising a power under subsections (1) to (5), the Director-General must observe the rules of natural justice.

(7)

The maximum total period of suspension under this section is 6 months.

(8)

At the end of the maximum total period of suspension, the Director-General may cancel the approval if the Director-General has reasonable grounds to believe that the non-compliance occasioning the suspension has not been rectified.

Section 40A: inserted, on 18 September 2012, by section 35 of the Biosecurity Law Reform Act 2012 (2012 No 73).

40B Notice requirements

(1)

If the Director-General suspends an approval under section 40A(1), the Director-General must give written notice to the facility operator.

(2)

The Director-General must give the notice before the suspension takes effect.

(3)

The notice must specify—

(a)

the reason for the suspension; and

(b)

the period of the suspension; and

(c)

the date on which, or the date and time at which, the suspension starts; and

(d)

the steps to be taken to enable the suspension to be lifted.

(4)

If the Director-General extends the period of suspension under section 40A(3), the Director-General must give written notice to the facility operator.

(5)

The Director-General must give the notice before the expiry of the original suspension.

(6)

The notice must specify—

(a)

the reason for the extension; and

(b)

the period of the extension; and

(c)

the date on which, or the date and time at which, the extension starts; and

(d)

the steps to be taken to enable the extension to be lifted.

Section 40B: inserted, on 18 September 2012, by section 35 of the Biosecurity Law Reform Act 2012 (2012 No 73).

40C Effect of suspension and extension

(1)

When a suspension or extension is imposed under section 40A, the Director-General, a chief technical officer, or an inspector may give reasonable directions as to the disposal of, treatment of, or any other dealing with the goods held at the facility.

(2)

The suspension or extension does not affect any other actions that the Director-General, a chief technical officer, or an inspector may take under this Act.

Section 40C: inserted, on 18 September 2012, by section 35 of the Biosecurity Law Reform Act 2012 (2012 No 73).

40D Suspension of operator approval

(1)

The Director-General may suspend an approval given under section 40 if the Director-General has reasonable grounds to believe that—

(a)

the facility operator has not complied with section 40(6); or

(b)

the facility operator has committed an offence under section 154N(17).

(2)

The maximum period of the suspension is 3 months.

(3)

The Director-General may extend the period of a suspension if the Director-General has reasonable grounds to believe that the conduct occasioning the suspension has not been rectified.

(4)

The period of extension must not exceed 3 months.

(5)

The Director-General must lift a suspension or extension before its period ends if the Director-General has reasonable grounds to believe that the conduct occasioning the suspension has been rectified.

(6)

In exercising a power under subsections (1) to (5), the Director-General must observe the rules of natural justice.

(7)

The maximum total period of suspension under this section is 6 months.

(8)

At the end of the maximum total period of suspension, the Director-General may cancel the approval if the Director-General has reasonable grounds to believe that the non-compliance occasioning the suspension has not been rectified.

Section 40D: inserted, on 18 September 2012, by section 35 of the Biosecurity Law Reform Act 2012 (2012 No 73).

40E Notice requirements

(1)

If the Director-General suspends an approval under section 40D(1), the Director-General must give written notice to the facility operator.

(2)

The Director-General must give the notice before the suspension takes effect.

(3)

The notice must specify—

(a)

the reason for the suspension; and

(b)

the period of the suspension; and

(c)

the date on which, or the date and time at which, the suspension starts; and

(d)

the steps to be taken to enable the suspension to be lifted.

(4)

If the Director-General extends the period of suspension under section 40D(3), the Director-General must give written notice to the facility operator.

(5)

The Director-General must give the notice before the expiry of the original suspension.

(6)

The notice must specify—

(a)

the reason for the extension; and

(b)

the period of the extension; and

(c)

the date on which, or the date and time at which, the extension starts; and

(d)

the steps to be taken to enable the extension to be lifted.

Section 40E: inserted, on 18 September 2012, by section 35 of the Biosecurity Law Reform Act 2012 (2012 No 73).

40F Effect of suspension and extension

(1)

When a suspension or extension is imposed under section 40D, the Director-General, a chief technical officer, or an inspector may give reasonable directions as to the disposal of, treatment of, or any other dealing with the goods held at the facility.

(2)

The suspension or extension does not affect any other actions that the Director-General, a chief technical officer, or an inspector may take under this Act.

Section 40F: inserted, on 18 September 2012, by section 35 of the Biosecurity Law Reform Act 2012 (2012 No 73).

41 Designation of quarantine area

(1)

The Director-General may by notice in the Gazette designate any place to be a quarantine area, and may at any time revoke or vary such a designation.

(2)

An inspector may, by the display of a clearly visible notice within a biosecurity control area, designate any place within that biosecurity control area to be a quarantine area.

(3)

A designation under subsection (2) shall ordinarily expire after 48 hours, or when sooner revoked; but it may be extended once by an inspector for a further period of not more than 48 hours.

(4)

Every quarantine area shall be under the direct control of an inspector.

(5)

No person shall, knowing that an area is a quarantine area, enter, leave, or use the area for any purpose, without the permission of the inspector who has control of the area.

Definitions for information-sharing provisions

Heading: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41A Definitions

(1)

In this section and sections 41B to 41I, unless the context otherwise requires,—

access, in relation to any information, means search, inspect, copy, process, analyse, manipulate, receive, or otherwise make use of the information in a way that is consistent with the purpose for which access has been allowed

agency includes a government department or Crown entity

border information

(a)

means information—

(i)

that is required to be supplied to the Ministry or the Customs by or under this Act or the Customs and Excise Act 1996, or both, for a border protection purpose; or

(ii)

that is otherwise lawfully supplied or collected for a border protection purpose; and

(b)

includes, without limitation, information about—

(i)

goods, persons, or craft:

(ii)

import or export transactions:

(iii)

importers or exporters; and

(c)

also includes data or information that is derived from, or related to, any information referred to in paragraphs (a) and (b) or any analysis of that information

border protection purpose means any lawful purpose relating to, or connected with, the performance or exercise of either or both of the following, as the case may be:

(a)

a Ministry-related border management function:

(b)

a customs-related border management function

chief executive means the chief executive of the Customs

computer system means the whole, or any part, of all or any of the 1 or more items described in the following paragraphs (each of which items includes all related input, output, processing, storage, software, or communication facilities, and stored data):

(a)

a computer:

(b)

2 or more interconnected computers:

(c)

any communication links between computers or to remote terminals or another device:

(d)

2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device

Customs

(a)

means the New Zealand Customs Service; and

(b)

includes the chief executive and any Customs officer

customs-related border management function means any function, duty, or power imposed or conferred on the Customs by or under the Customs and Excise Act 1996 that is necessary—

(a)

to achieve the purpose of that Act; or

(b)

for the administration of that Act

Joint Border Management System or JBMS has the meaning given in section 131A of the Customs and Excise Act 1996

Ministry includes—

(a)

the Director-General; and

(b)

any inspector appointed under section 103

Ministry-related border management function means—

(a)

any function, duty, or power imposed or conferred on the Ministry by or under this Part:

(b)

any other function, duty, or power imposed or conferred on the Ministry by or under this Act that is necessary—

(i)

to achieve the purpose of this Part; or

(ii)

for the administration of this Part:

(c)

any function, duty, or power imposed or conferred on the Ministry by or under any of the following Acts in relation to the effective management of risks associated with the movement of goods, persons, or craft into or out of New Zealand:

(i)
(v)
(vi)

any other Act that is specified by the Governor-General, by Order in Council made under section 165A, to be an Act for the purposes of this definition.

(2)

For the purposes of the definition of computer system, a computer is interconnected with another computer if it can be lawfully used to provide access to that other computer—

(a)

with or without access information; and

(b)

whether or not either or both computers are currently turned on; and

(c)

whether or not access is currently occurring.

Section 41A: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

Section 41A(1) biosecurity-related border management function: repealed, on 24 June 2014, by section 7(1) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Section 41A(1) border protection purpose paragraph (a): amended, on 24 June 2014, by section 7(2) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Section 41A(1) computer system: replaced, on 24 June 2014, by section 7(3) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Section 41A(1) Joint Border Management System or JBMS: replaced, on 24 June 2014, by section 7(4) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Section 41A(1) Ministry-related border management function: inserted, on 24 June 2014, by section 7(1) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Section 41A(1) Ministry-related border management function paragraph (c)(i): amended, on 1 March 2016, by section 447 of the Food Act 2014 (2014 No 32).

Section 41A(2): inserted, on 24 June 2014, by section 7(5) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Interim arrangements for information sharing

Heading: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41B Purpose of sections 41C to 41E

The purpose of sections 41C to 41E is to support certain interim information-sharing measures (relating to joint border management initiatives between the Ministry and the Customs) that are required to be in place until the JBMS becomes operational by allowing—

(a)

the Ministry or an agency appointed under section 41C to collect or store any border information:

(b)

the Customs to access that border information for a customs-related border management function.

Section 41B: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41C Interim collection of border information

(1)

The Ministry may—

(a)

collect any border information:

(b)

store any border information.

(2)

If the border information is personal information, subsection (1) applies despite anything in information privacy principle 2 or 3 of the Privacy Act 1993.

(3)

The Minister may appoint any agency (in addition to, or instead of, the Customs) to exercise any of the powers conferred on the Ministry by subsection (1).

Section 41C: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41D Requirement by or under this Act to supply border information is complied with if information is supplied to Customs or other agency

(1)

A person must be taken to have complied with a requirement by or under this Act to supply any border information to the Ministry if, instead of to the Ministry, the person supplies the border information to—

(a)

the Customs, for the purposes of, and in accordance with, section 282F(1) of the Customs and Excise Act 1996:

(b)

an agency appointed under section 41C(3), for the purposes of, and in accordance with, section 41C(1) of this Act or section 282F(1) of the Customs and Excise Act 1996.

(2)

However, subsection (1) does not apply if the Director-General has given the person a written notice requiring the border information to be supplied to the Ministry instead of to the Customs or an agency appointed under section 41C(3).

Section 41D: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41E Interim access to border information

(1)

The Director-General may, in accordance with a written agreement entered into by the Director-General and the chief executive, allow the Customs to access any border information that was or is collected or stored before, on, or after the commencement of this section.

(2)

If the border information is personal information, subsection (1) applies despite anything in information privacy principle 10 or 11 of the Privacy Act 1993.

(3)

An agreement must state—

(a)

the purpose of the agreement; and

(b)

the border information that can be accessed; and

(c)

the conditions subject to which the border information will be accessed; and

(d)

how the Customs will use the border information (including the limits on any further disclosure by the Customs); and

(e)

the method and form of access.

(4)

An agreement may be varied by the Director-General and the chief executive in writing.

(5)

The Director-General and the chief executive must consult the Privacy Commissioner before entering into or varying an agreement.

(6)

To avoid doubt, nothing in subsection (1) limits or prevents the Customs from carrying out an analysis of any border information to which it has access under that subsection for the purpose of examining risk patterns or risk profiles in relation to any or all of the following:

(a)

goods, persons, or craft:

(b)

import or export transactions:

(c)

importers or exporters.

Section 41E: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41F Expiry of sections 41B to 41E and agreements made under section 41E

Sections 41B to 41E and any agreement made under section 41E expire, or must be taken to have expired, on the date of expiry of sections 282E to 282H of the Customs and Excise Act 1996 (as provided for in section 282I of that Act).

Section 41F: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

Information sharing for joint border management

Heading: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41GAA Application of sections 41G to 41I

(1)

Sections 41G to 41I apply to border information only on and after the date of expiry of the interim arrangements for information sharing (as that date of expiry is provided in section 282I(1) of the Customs and Excise Act 1996).

(2)

The interim arrangements for information sharing are the arrangements under all or any of the following:

(a)

sections 282E to 282H (and any agreements under section 282H) of the Customs and Excise Act 1996; and

(b)

sections 41B to 41E (and any agreements under section 41E) of this Act.

(3)

On that date of expiry (as provided in section 282I(1) of the Customs and Excise Act 1996), sections 41B to 41F, and the cross-heading above section 41B, are repealed.

Section 41GAA: inserted, on 24 June 2014, by section 8 of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

41G Collection of border information

(1)

The Ministry may—

(a)

collect any border information:

(b)

store any border information in the JBMS.

(2)

If the border information is personal information, subsection (1) applies despite anything in information privacy principle 2 or 3 of the Privacy Act 1993.

(3)

The Minister may appoint any agency (in addition to, or instead, of the Customs) to exercise any of the powers conferred on the Ministry by subsection (1).

Section 41G: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41H Requirement by or under this Act to supply border information is complied with if information is supplied to Customs or other agency

(1)

A person must be taken to have complied with a requirement by or under this Act to supply any border information to the Ministry if, instead of to the Ministry, the person supplies the border information to—

(a)

the Customs, for the purposes of, and in accordance with, section 282J(1) of the Customs and Excise Act 1996:

(b)

an agency appointed under section 41G(3), for the purposes of, and in accordance with, section 41G(1) of this Act or section 282J(1) of the Customs and Excise Act 1996.

(2)

However, subsection (1) does not apply if the Director-General has given the person a written notice requiring the border information to be supplied to the Ministry instead of to the Customs or an agency appointed under section 41G(3).

Section 41H: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

41I Ministry may access border information

(1)

The Ministry may access any border information stored in the JBMS that is needed for, or relevant to, a Ministry-related border management function.

(2)

If the border information is personal information, subsection (1) applies despite anything in information privacy principle 10 of the Privacy Act 1993.

(3)

Subsections (1) and (2) apply to any border information stored in the JBMS, whether the border information was or is collected—

(a)

before, on, or after the commencement of this section; or

(b)

by an agency appointed under section 41G(3).

(4)

To avoid doubt, nothing in subsection (1) limits or prevents the Ministry from carrying out an analysis of any border information to which it has access under that subsection for the purpose of examining risk patterns or risk profiles in relation to any or all of the following:

(a)

goods, persons, or craft:

(b)

import or export transactions:

(c)

importers or exporters.

Section 41I: inserted, on 6 April 2012, by section 4 of the Biosecurity Amendment Act 2012 (2012 No 26).

Section 41I(1): amended, on 24 June 2014, by section 9 of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

Part 4 Surveillance and prevention

42 Purpose of Part 4

The purpose of this Part is to provide for the continuous monitoring of New Zealand’s status in regard to pests and unwanted organisms—

(a)

to facilitate the provision of assurances and certificates in relation to exports of organisms and their products; and

(b)

as a basis for the proper administration of this Act, including the institution of precautionary actions, emergency and exigency arrangements, and pest management plans or pathway management plans; and

(c)

to monitor the effect of pest management plans or pathway management plans; and

(d)

otherwise to enable any of New Zealand’s international reporting obligations and trading requirements to be met.

Section 42(b): amended, on 18 September 2012, by section 36 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 42(c): amended, on 18 September 2012, by section 36 of the Biosecurity Law Reform Act 2012 (2012 No 73).

43 Duty to provide information

(1)

For the purposes of this Part, an inspector or authorised person may require any person referred to in subsection (2)—

(a)

to provide any information held by the person concerning pests, pest agents, unwanted organisms, or risk goods that the inspector or authorised person believes on reasonable grounds is necessary to ascertain the presence or distribution in New Zealand of pests, pest agents, or unwanted organisms (or pests or unwanted organisms of a particular kind or description); and

(b)

to provide such assistance as the inspector or authorised person reasonably requests to enable or facilitate the acquisition, collection, and recording of any such information ascertained.

(2)

The persons referred to for the purposes of subsection (1) are—

(a)

every person who owns, manages, or otherwise controls the means by which and the sources from which information required under subsection (1) may be generated; and

(b)

every person who owns, manages, or otherwise controls any organism, organic material, or risk goods that may be monitored for the purposes of this Part.

Compare: 1969 No 53 s 6

Section 43(1)(a): amended, on 1 January 2005, by section 3(1) of the Biosecurity Amendment Act 2004 (2004 No 106).

Section 43(1)(a): amended, on 26 November 1997, by section 22 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 43(2)(b): amended, on 1 January 2005, by section 3(2) of the Biosecurity Amendment Act 2004 (2004 No 106).

44 General duty to inform

(1)

Every person is under a duty to inform the Ministry, as soon as practicable in the circumstances, of the presence of what appears to be an organism not normally seen or otherwise detected in New Zealand.

(2)

The duty to inform does not apply in relation to an organism that is seen or otherwise detected in a place where it may lawfully be present in accordance with an approval given under the Hazardous Substances and New Organisms Act 1996.

Section 44: replaced, on 8 July 2003, by section 6 of the Biosecurity Amendment Act 2003 (2003 No 38).

45 Notifiable organisms

(1)

[Repealed]

(2)

The Governor-General may, by Order in Council, declare any organism to be a notifiable organism.

(3)

The Governor-General may, by Order in Council, made on the recommendation of the responsible Minister, declare any pest to which a regional pest management plan relates to be an organism notifiable within the region, or within any specified part of the region, of the regional council or regional councils concerned.

(4)

The responsible Minister shall not recommend the making of an order under subsection (3), unless—

(a)

the regional council or regional councils concerned have asked the Minister to do so; and

(b)

the Minister is satisfied that it is in the public interest to do so.

(5)

The responsible Minister must not recommend the making of an order under subsection (2) in respect of any organism which has been approved for release in New Zealand by the Authority in accordance with the Hazardous Substances and New Organisms Act 1996 unless that Minister has first consulted with the Authority.

Section 45(1): repealed, on 26 November 1997, by section 35(2)(b) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 45(3): amended, on 18 September 2012, by section 37 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 45(5): inserted, on 29 July 1998, by section 132 of the Biosecurity Amendment Act 1997 (1997 No 89).

46 Duty to report notifiable organisms

(1)

Every person who—

(a)

at any time suspects the presence of an organism in any place in New Zealand; and

(b)

suspects that it is for the time being declared to be a notifiable organism under subsection (2) of section 45; and

(c)

believes that it is not at the time established in that place; and

(d)

has no reasonable grounds for believing that the chief technical officer is aware of its presence or possible presence in that place at that time,—

shall without unreasonable delay report to the chief technical officer its presence or possible presence in that place at that time.

(2)

Every person who—

(a)

at any time suspects the presence of an organism in a place in the region, or in any part of the region, of a regional council; and

(b)

suspects that it is for the time being declared to be an organism notifiable within the region or part under subsection (3) of section 45; and

(c)

believes that it is not at that time established in that place; and

(d)

has no reasonable grounds for believing that the chief technical officer is aware of its presence or possible presence in that place at that time,—

shall without unreasonable delay report to the chief technical officer its presence or possible presence in that place at that time.

Section 46(1)(b): amended, on 26 November 1997, by section 35(2)(c) of the Biosecurity Amendment Act 1997 (1997 No 89).

47 Imported risk goods
[Repealed]

Section 47: repealed, on 26 November 1997, by section 24 of the Biosecurity Amendment Act 1997 (1997 No 89).

48 Power to require information

(1)

A chief technical officer may, by notice in writing, require the person in charge of premises used for investigating organisms or organic material, or any person employed in a professional or technical capacity in any area of biological science, to—

(a)

supply the chief technical officer with information held by that person on the incidence, prevalence, or distribution of specified organisms; or

(b)

permit the chief technical officer, or a person authorised in writing by that officer, to have access to, inspect, and test or sample specimens of any organism or tissues or parts of an organism or organic material held by that person or on those premises.

(1A)

A chief technical officer may, by notice in writing, require any person who has expertise or knowledge in an area of biological science to supply the chief technical officer with information held by that person on the incidence, prevalence, or distribution of specified organisms.

(2)

Except in relation to circumstances concerning which a regulation makes contrary provision, the reasonable expenses of a person who supplies information to a chief technical officer in response to a requirement under this section will be reimbursed out of money appropriated by Parliament for the purpose if those expenses would not have been incurred but for the requirement.

Section 48(1): replaced, on 26 November 1997, by section 25 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 48(1A): inserted, on 26 November 1997, by section 25 of the Biosecurity Amendment Act 1997 (1997 No 89).

49 Use of information

Any information acquired by a chief technical officer under this Part may be published for the purpose of communicating the animal or plant health status of New Zealand, or the occurrence (in New Zealand or overseas) of pests or unwanted organisms.

50 Identification systems

(1)

The Director-General may, from time to time, approve systems administered by specified persons for the purpose of enabling the identification of organisms and their products and associated premises.

(2)

The Director-General may approve identification systems under this section for any of the following purposes:

(a)

facilitating pest management:

(b)

marking the presence or absence in organisms of particular qualities relating to the purposes of this Act:

(c)

meeting the certification requirements of overseas authorities in respect of New Zealand exports.

(3)

When considering the approval of an identification system under this section, the Director-General shall ensure that the identifications to be used—

(a)

provide unique, clear, and lasting identification having regard to the purpose for which the identifications are needed; and

(b)

do not create confusion with any other generally used system of identification.

(4)

Regulations made under this Act may require persons of any kind or description to use one of any 1 or more identification systems approved under this section and notified in the Gazette in accordance with subsection (5).

(5)

The Director-General may, by notice in the Gazette, specify the identification systems that may be used to comply with regulations made under this Act; and must keep, and make publicly available, a register of all Gazette notices made under this section.

Section 50(1): replaced, on 26 November 1997, by section 26(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 50(4): replaced, on 26 November 1997, by section 26(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 50(5): inserted, on 26 November 1997, by section 26(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

51 Duties relating to identification of organisms

(1)

No person shall remove, alter, or deface any approved identification that has been used in relation to an organism except with the written permission of an inspector or with reasonable excuse.

(2)

No person shall knowingly use in relation to any organism—

(a)

an identification forming part of an approved identification system that the person is not entitled to use in relation to that organism; or

(b)

any mark that is likely to be mistaken for or confused with an identification forming part of an approved identification system.

(3)

No person required by regulations made under this Act to use one of any 1 or more identification systems notified in the Gazette shall fail to do so.

Section 51(3): amended, on 26 November 1997, by section 26(3) of the Biosecurity Amendment Act 1997 (1997 No 89).

52 Communication of pest or unwanted organism

No person shall knowingly communicate, cause to be communicated, release, or cause to be released, or otherwise spread any pest or unwanted organism except—

(a)

in the course of and in accordance with a pest management plan; or

(b)

as provided in an emergency regulation made under section 150; or

(c)

for a scientific purpose carried out with the authority of the Minister; or

(d)

as permitted either generally or specifically by a chief technical officer.

Compare: 1967 No 50 s 38; 1967 No 147 s 111

Section 52 heading: amended, on 26 November 1997, by section 27(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 52: amended, on 26 November 1997, by section 27(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 52(a): amended, on 18 September 2012, by section 38(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 52(c): amended, on 18 September 2012, by section 38(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 52(d): inserted, on 26 November 1997, by section 27(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

53 Duties of owners of organisms

(1)

Subject to subsection (2), the owner or person in charge of an organism which that person knows or suspects constitutes, contains, or harbours a pest or unwanted organism must not—

(a)

cause or permit that organism to be in a place where organisms are offered for sale or are exhibited; or

(b)

sell or offer that organism for sale; or

(c)

propagate, breed, or multiply the pest or unwanted organism or otherwise act in such a manner as is likely to encourage or cause the propagation, breeding, or multiplication of the pest or unwanted organism.

(2)

A chief technical officer may permit an owner or person in charge of an organism to carry out an act otherwise prohibited by this section.

(3)

Permission given under this section must be given either by notice in the Gazette or in writing to the owner or person in charge of an organism.

Compare: 1967 No 50 s 49; 1970 No 151 s 28; 1978 No 15 s 49

Section 53(1): replaced, on 26 November 1997, by section 28(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 53(2): replaced, on 26 November 1997, by section 28(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 53(3): inserted, on 26 November 1997, by section 28(2) of the Biosecurity Amendment Act 1997 (1997 No 89).

Part 5 Pest management

Part 5: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

54 Purpose of this Part

The purpose of this Part is to provide for the eradication or effective management of harmful organisms that are present in New Zealand by providing for—

(a)

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 Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga; and

(b)

the appropriate distribution of costs associated with the instruments and measures.

Section 54: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

55 Responsible Minister may assign responsibility for decisions

(1)

The responsible Minister may assign responsibility for a decision on the appropriate response to an issue relating to a harmful organism or pathway.

(2)

The process for the Minister to assign responsibility must be set out in regulations.

(3)

If the Minister assigns responsibility to a department or regional council,—

(a)

the Minister may specify a time within which the decision must be made; and

(b)

the Minister may extend the time if the Minister considers that exceptional circumstances exist justifying the extension; and

(c)

the department or regional council must make the decision within the time or extended time.

Section 55: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Policy direction

Heading: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

56 Responsible Minister provides leadership through national policy direction

(1)

The responsible Minister must make a national policy direction. It is to be the only national policy direction, but it may be amended or revoked and replaced.

Purpose

(2)

The purpose of the national policy direction is to ensure that activities under this Part 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 purpose of this Part.

Good neighbour rules

(3)

The national policy direction must contain directions on the setting of good neighbour rules in regional pest management plans.

Timing requirements for determination under section 100E(3)

(4)

The national policy direction must contain directions on the time within which the Minister or council must make a determination under section 100E(3).

Directions

(5)

The national policy direction may include directions on—

(a)

the process for making plans or small-scale management programmes:

(b)

the content of plans or small-scale management programmes:

(c)

any other matter that the responsible Minister considers necessary.

(6)

The following are examples of the matters on which directions may be given:

(a)

the circumstances in which it is or is not appropriate to use plans or small-scale management programmes:

(b)

the development of plans or small-scale management programmes:

(c)

the implementation of plans or small-scale management programmes:

(d)

the monitoring of plans or small-scale management programmes:

(e)

the review of plans or small-scale management programmes:

(f)

the relationship of plans with one another:

(g)

the relationship of small-scale management programmes with one another:

(h)

the relationship between plans and small-scale management programmes:

(i)

the achievement of appropriate consistency between plans and instruments under other enactments:

(j)

the achievement of appropriate consistency between small-scale management programmes and instruments under other enactments:

(k)

the transitional arrangements that are necessary for plans or small-scale management programmes to conform with the national policy direction.

(7)

Before including a direction under subsection (5), the Minister must have regard to the extent to which the direction is likely to—

(a)

achieve the purpose of this Part and of the national policy direction:

(b)

affect the flexibility of instruments or measures under this Part:

(c)

affect the timeliness of decisions made under this Part:

(d)

improve national consistency among instruments made under this Part:

(e)

affect the accountability of decision-makers, including the accountability of local decision-makers to their communities of interest:

(f)

affect any other matter that the Minister considers relevant.

Section 56: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

57 Process for making national policy direction

(1)

The responsible Minister must prepare a proposed national policy direction (proposal).

(2)

After preparing the proposal, the Minister must establish, and then use, a process that—

(a)

the Minister is satisfied gives adequate time and opportunity to the following to make a submission on the proposal:

(i)

management agencies; and

(ii)

the rest of the public; and

(b)

requires a report and recommendations to be made to the Minister on the submissions and the subject matter of the proposal.

(3)

When the Minister receives the report and recommendations, the Minister must consider them.

(4)

If the Minister does not accept a recommendation, the Minister must publish the Minister’s reasons on an Internet site maintained by or on behalf of the Ministry.

(5)

The Minister may then—

(a)

make changes that the Minister considers appropriate to the proposal or decide to make no changes to it; or

(b)

withdraw all or part of the proposal and publish the withdrawal, and the reasons for it, on an Internet site maintained by or on behalf of the Ministry.

(6)

When the Minister has made appropriate changes to the proposal or decided to make no changes to it, the Minister must recommend the approval of the national policy direction to the Governor-General in Council.

(7)

The Governor-General in Council may approve the national policy direction.

(8)

As soon as practicable after the Governor-General in Council has approved the national policy direction, the Minister must—

(a)

publish a notice in the Gazette stating that the Governor-General has approved the direction and the date on which the Governor-General approved it; and

(b)

publicly notify the direction in whatever form he or she thinks appropriate; and

(c)

send a copy of the direction to every management agency and regional council.

(9)

The national policy direction is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 57: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 57(9): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

58 Process for amending or revoking and replacing national policy direction

(1)

If the national policy direction is to be amended in a way that the Minister considers would materially alter the direction, the Minister must—

(a)

prepare the proposed amendment; and

(b)

apply the process in section 57(2) to (8) to the proposed amendment.

(2)

If the national policy direction is to be amended in a way that the Minister does not consider would materially alter the direction, the Minister must—

(a)

approve the amendment; and

(b)

publish a notice in the Gazette stating that the amendment has been approved; and

(c)

publicly notify the amendment in whatever form he or she thinks appropriate; and

(d)

send a copy of the amendment to every management agency and regional council.

(3)

If the national policy direction is to be revoked and replaced, the Minister must follow the process in section 57(1) to (8).

(4)

An amendment under subsection (1) or (2) or a replacement direction under subsection (3) is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 58: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 58(4): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Pest management plans

National pest management plans

Headings: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

59 Definitions for sections 60 to 67

For the purposes of sections 60 to 67,—

management agency means a management agency responsible for implementing a national pest management plan

plan means a national pest management plan

proposal means a proposal for a national pest management plan

rule means a rule in a national pest management plan.

Section 59: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

60 Relationship of rules and plan with law

(1)

To the extent to which a bylaw of a local authority is inconsistent with a rule applying to the same locality, the rule prevails.

(2)

If a plan imposes obligations and costs on the Crown, the Crown must comply with the obligations and meet the costs.

Section 60: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

61 First step: plan initiated by proposal

(1)

The first step in the making of a plan is a proposal made by—

(a)

a Minister; or

(b)

a person who submits the proposal to a Minister.

(2)

The proposal must set out the following matters:

(a)

the name of the person making the proposal:

(b)

the subject of the proposal, which means—

(i)

the organism proposed to be specified as a pest under the plan or the organisms proposed to be specified as pests under the plan; or

(ii)

the class or description of organism proposed to be specified as a pest under the plan or the classes or descriptions of organisms proposed to be specified as pests under the plan:

(c)

for each subject,—

(i)

a description of its adverse effects:

(ii)

the reasons for proposing a plan:

(iii)

the objectives that the plan would have:

(iv)

the principal measures that would be in the plan to achieve the objectives:

(v)

other measures that it would be reasonable to take to achieve the objectives, if there are any such measures, and the reasons why the proposed measures are preferable as a means of achieving the objectives:

(vi)

the reasons why a national plan is more appropriate than a regional plan:

(vii)

an analysis of the benefits and costs of the plan:

(viii)

the extent to which any persons, or persons of a class or description, are likely to benefit from the plan:

(ix)

the extent to which any persons, or persons of a class or description, contribute to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan:

(x)

the rationale for the proposed allocation of costs:

(xi)

if it is proposed that the plan be funded by a levy under section 100L, how the proposed levy satisfies section 100L(5)(d) and what matters will be specified under section 100N(1):

(xii)

whether any unusual administrative problems or costs are expected in recovering the costs allocated to any of the persons whom the plan would require to pay the costs:

(d)

any other organism intended to be controlled:

(e)

the effects that, in the opinion of the person making the proposal, implementation of the plan would have on—

(i)

economic wellbeing, the environment, human health, enjoyment of the natural environment, and the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(ii)

the marketing overseas of New Zealand products:

(f)

if the plan would affect another pest management plan or a pathway management plan, how it is proposed to co-ordinate the implementation of the plans:

(g)

the powers in Part 6 that it is proposed to use to implement the plan:

(h)

each proposed rule and an explanation of its purpose:

(i)

the rules whose contravention is proposed to be an offence under this Act:

(j)

the management agency:

(k)

the means by which it is proposed to monitor or measure the achievement of the plan’s objectives:

(l)

the actions that it is proposed local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(m)

the basis, if any, on which the management agency is to pay compensation for losses incurred as a direct result of the implementation of the plan:

(n)

information on the disposal of the proceeds of any receipts arising in the course of implementing the plan:

(o)

whether or not the plan would apply to the EEZ and, if it would, whether it would apply to all of it or parts of it and, if it would apply to parts, which parts:

(p)

whether the plan includes portions of road adjoining land it covers, as authorised by section 6, and, if so, the portions of road proposed to be included:

(q)

the anticipated costs of implementing the plan:

(r)

how it is proposed that the costs be funded:

(s)

the period for which it is proposed the plan be in force:

(t)

the consultation, if any, that has occurred on the proposal and the outcome of it:

(u)

any matter that the national policy direction requires be specified in a plan:

(v)

the steps that have been taken to comply with the process requirements in the national policy direction, if there were any.

Section 61: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

62 Second step: satisfaction on requirements

If the Minister is satisfied that section 61 has been complied with, the Minister may take the second step in the making of a plan, which is to consider whether the Minister is satisfied—

(a)

that the proposal is not inconsistent with the national policy direction; and

(b)

that, during the development of the proposal, the process requirements for a plan in the national policy direction, if there were any, were complied with; and

(c)

that the proposal has merit as a means of eradicating or effectively managing the subject of the proposal, which means—

(i)

the organism proposed to be specified as a pest under the plan or the organisms proposed to be specified as pests under the plan; or

(ii)

the class or description of organism proposed to be specified as a pest under the plan or the classes or descriptions of organisms proposed to be specified as pests under the plan; and

(d)

that each subject is capable of causing at some time an adverse effect on 1 or more of the following in New Zealand:

(i)

economic wellbeing:

(ii)

the viability of threatened species of organisms:

(iii)

the survival and distribution of indigenous plants or animals:

(iv)

the sustainability of natural and developed ecosystems, ecological processes, and biological diversity:

(v)

soil resources:

(vi)

water quality:

(vii)

human health:

(viii)

social and cultural wellbeing:

(ix)

the enjoyment of the recreational value of the natural environment:

(x)

the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(xi)

animal welfare; and

(e)

that, for each subject, the benefits of the plan would outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(f)

that, for each subject, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

would accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(g)

that, for each subject, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(h)

that the implementation of the plan would not be contrary to New Zealand’s international obligations; and

(i)

that each proposed rule—

(i)

would assist in achieving the plan’s objectives; and

(ii)

would not trespass unduly on the rights of individuals; and

(j)

that the proposal is not frivolous or vexatious; and

(k)

that the proposal is clear enough to be readily understood; and

(l)

that, if the Minister rejected a similar proposal within the last 3 years, new and material information answers the Minister’s objection to the previous proposal.

Section 62: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

63 Third step: satisfaction with consultation or requirement of more consultation

(1)

If the Minister is satisfied of the matters in section 62, the Minister may take the third step in the making of a plan, which is for the Minister to consider whether the Minister is satisfied—

(a)

that, if Ministers’ responsibilities may be affected by the plan, the Ministers have been consulted; and

(b)

that, if local authorities’ responsibilities may be affected by the plan, the authorities have been consulted; and

(c)

that, if consultation with tangata whenua or other persons is appropriate, sufficient consultation has occurred.

(2)

In considering whether the Minister is satisfied as required by subsection (1)(c), the Minister must have regard to the following:

(a)

the scale of the impacts on persons who are likely to be affected by the plan; and

(b)

whether the persons likely to be affected by the plan or their representatives have already been consulted and, if so, the nature of the consultation; and

(c)

the level of support for, or opposition to, the proposal from persons who are likely to be affected by it.

(3)

If the Minister is satisfied as required by subsection (1), the Minister must apply section 64.

(4)

If the Minister is not satisfied as required by subsection (1), the Minister may require consultation to be undertaken on the proposal.

(5)

If the Minister requires consultation to be undertaken, the Minister must determine the way or ways in which the consultation must be undertaken, including, but not limited to, ways such as—

(a)

consultation with persons likely to be affected by the plan or with their representatives:

(b)

the appointment by the Minister of 1 or more persons to carry out an independent inquiry into the proposal on terms of reference set by the Minister:

(c)

public notification of the proposal and the receipt of submissions.

(6)

After the consultation required by the Minister has been undertaken, the Minister must apply subsection (1) again.

Section 63: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

64 Fourth step: approval of preparation of plan and decision on management agency

(1)

If the Minister is satisfied as required by section 63(1) and is satisfied that the issues raised in all the consultation undertaken on the proposal have been considered, the Minister may take the fourth step in the making of a plan, which is to approve the preparation of a plan.

(2)

If the Minister approves the preparation of a plan, the Minister must apply section 100 to decide which body is to be the management agency.

Matters to be specified

(3)

A plan must specify the following matters:

(a)

the pest or pests to be eradicated or managed:

(b)

the plan’s objectives:

(c)

the principal measures to be taken to achieve the objectives:

(d)

the means by which the achievement of the plan’s objectives will be monitored or measured:

(e)

the sources of funding for the implementation of the plan:

(f)

the limitations, if any, on how the funds collected from those sources may be used to implement the plan:

(g)

the powers in Part 6 to be used to implement the plan:

(h)

the rules, if any:

(i)

the management agency:

(j)

the actions that local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(k)

the parts of the EEZ to which the plan applies, if it applies to parts, or the fact that it applies to the whole EEZ, if it does:

(l)

the portions of road, if any, adjoining land covered by the plan and, as authorised by section 6, also covered by the plan:

(m)

the plan’s commencement date and termination date:

(n)

any matters required by the national policy direction.

Compensation

(4)

A plan—

(a)

may provide for the payment of compensation for losses incurred as a direct result of the implementation of the plan:

(b)

must not provide for the payment of compensation for the following losses:

(i)

loss suffered because a person’s income derived from feral or wild organisms is adversely affected by the implementation of the plan:

(ii)

loss suffered before an inspector or authorised person establishes the presence of the pest on the place of the person suffering the loss:

(iii)

loss suffered by a person who fails to comply with the plan.

Rules

(5)

A plan may include rules for all or any of the following purposes:

(a)

requiring a person to take specified actions to enable the management agency to determine or monitor the presence or distribution of the pest or a pest agent:

(b)

requiring a person to keep records of actions taken under the rules and to send to the management agency specified information based on the records:

(c)

requiring the identification of specified goods:

(d)

prohibiting or regulating specified methods that may be used in managing the pest:

(e)

prohibiting or regulating activities that may affect measures taken to implement the plan:

(f)

requiring audits or inspections of specified actions:

(g)

specifying, for the purposes of section 52(a), the circumstances in which the pest may be communicated, released, or otherwise spread:

(h)

requiring the occupier of a place to take specified actions to eradicate or manage the pest or a specified pest agent on the place:

(i)

requiring the occupier of a place to take specified actions to eradicate or manage the habitat of the pest or the habitat of a specified pest agent on the place:

(j)

prohibiting or regulating specified activities by the occupier of a place if the activities are of the kind that would promote the habitat of the pest on the place:

(k)

requiring the occupier of a place to carry out specified activities to promote the presence of organisms that assist in the control of the pest on the place:

(l)

prohibiting or regulating specified activities by the occupier of a place, which deter the presence on that place of organisms that assist in the control of the pest:

(m)

requiring the occupier of a place to carry out specified treatments or procedures to assist in preventing the spread of the pest:

(n)

requiring the owner or person in charge of goods to carry out specified treatments or procedures to assist in preventing the spread of the pest:

(o)

requiring the destruction of goods if the goods may contain or harbour the pest or otherwise pose a risk of spreading the pest:

(p)

prohibiting or regulating specified uses of goods that may promote the spread or survival of the pest:

(q)

prohibiting or regulating the use or disposal of organic material:

(r)

prohibiting or regulating the use of specified practices in the management of organisms that may promote the spread or survival of the pest:

(s)

prohibiting or regulating the movement of goods that may contain or harbour the pest or otherwise pose a risk of spreading the pest.

(6)

A rule may—

(a)

apply generally or to different classes or descriptions of persons, places, goods, or other things:

(b)

apply all the time or at 1 or more specified times of the year:

(c)

apply throughout New Zealand or in a specified part or parts of New Zealand, with, if necessary, another rule on the same subject matter applying to another specified part of New Zealand:

(d)

specify that a contravention of the rule creates an offence under section 154N(18).

Section 64: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

65 Fifth step: satisfaction on contents of plan and requirements

If the Minister is satisfied that section 64 has been complied with, the Minister may take the fifth step in the making of a plan, which is for the Minister to consider whether the Minister is satisfied, in relation to the plan prepared under section 64,—

(a)

that the plan is not inconsistent with the national policy direction; and

(b)

that, for each subject of the plan, the benefits of the plan outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(c)

that, for each subject of the plan, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

will accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(d)

that, for each subject of the plan, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(e)

that each rule—

(i)

will assist in achieving the plan’s objectives; and

(ii)

will not trespass unduly on the rights of individuals; and

(f)

that the implementation of the plan is not contrary to New Zealand’s international obligations.

Section 65: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

66 Making of plan

(1)

If the Minister is satisfied of the matters in section 65, the Minister may recommend to the Governor-General that an Order in Council be made making the plan.

(2)

The order is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 66: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 66(2): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

67 Exemptions from rules

(1)

The Minister may exempt a person from a requirement in a rule, without conditions or on conditions that the Minister considers appropriate.

(2)

The Minister may grant an exemption under subsection (1) only if—

(a)

the Minister is satisfied that granting the exemption will not significantly prejudice the attainment of the plan’s objectives; and

(b)

the Minister is satisfied that 1 or more of the following applies:

(i)

the requirement has been substantially complied with and further compliance is unnecessary:

(ii)

the action taken on, or provision made for, the matter to which the requirement relates is as effective as, or more effective than, compliance with the requirement:

(iii)

the requirement is clearly unreasonable or inappropriate in the particular case:

(iv)

events have occurred that make the requirement unnecessary or inappropriate in the particular case.

(3)

The Minister may exempt all persons, a specified class of persons, persons in a specified place, or persons responsible for specified goods or things from a requirement in a rule, without conditions or on conditions that the Minister considers appropriate.

(4)

The Minister may grant an exemption under subsection (3) only if the Minister is satisfied that events have occurred that make the requirement unnecessary or inappropriate.

(5)

Conditions on which the Minister grants an exemption must be consistent with the purpose of this Part and must be no more onerous than the requirement from which the exemption is granted.

(6)

The Minister must determine the period of an exemption that the Minister grants.

(7)

As soon as practicable after granting an exemption, the Minister must publish a notice in the Gazette giving—

(a)

a description of the exemption; and

(b)

the reasons for the exemption; and

(c)

the period of the exemption.

(8)

The following apply to the extension of the period of an exemption:

(a)

the Minister may grant an extension of the period; and

(b)

the extension must be granted before the end of the period; and

(c)

the extended period becomes the period of the exemption; and

(d)

the Minister may exercise the power in paragraph (a) more than once; and

(e)

extensions of the period of an exemption must be notified in the Gazette.

(9)

An exemption is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 67: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 67(9): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Regional pest management plans

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

68 Definitions for sections 69 to 78

For the purposes of sections 69 to 78,—

council means a regional council

management agency means a management agency responsible for implementing a regional pest management plan

plan means a regional pest management plan

proposal means a proposal for a regional pest management plan

rule means a rule in a regional pest management plan.

Section 68: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

69 Relationship of rules with law

(1)

To the extent to which a regulation made under this or any other Act is inconsistent with a rule, the regulation prevails.

(2)

To the extent to which a rule in a national pest management plan is inconsistent with a rule, the rule in the national pest management plan prevails.

(3)

To the extent to which a rule in a national pathway management plan is inconsistent with a rule, the rule in the national pathway management plan prevails.

(4)

To the extent to which a bylaw of a local authority is inconsistent with a rule applying to the same locality, the rule prevails.

(5)

A good neighbour rule in a plan, or action taken under a plan to enforce a good neighbour rule in the plan, are the only ways in which a plan may cause the Crown to become liable to meet obligations or costs.

Section 69: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

70 First step: plan initiated by proposal

(1)

The first step in the making of a plan is a proposal made by—

(a)

the council; or

(b)

a person who submits the proposal to the council.

(2)

The proposal must set out the following matters:

(a)

the name of the person making the proposal:

(b)

the subject of the proposal, which means—

(i)

the organism proposed to be specified as a pest under the plan or the organisms proposed to be specified as pests under the plan; or

(ii)

the class or description of organism proposed to be specified as a pest under the plan or the classes or descriptions of organisms proposed to be specified as pests under the plan:

(c)

for each subject,—

(i)

a description of its adverse effects:

(ii)

the reasons for proposing a plan:

(iii)

the objectives that the plan would have:

(iv)

the principal measures that would be in the plan to achieve the objectives:

(v)

other measures that it would be reasonable to take to achieve the objectives, if there are any such measures, and the reasons why the proposed measures are preferable as a means of achieving the objectives:

(vi)

the reasons why the plan is more appropriate than relying on voluntary actions:

(vii)

an analysis of the benefits and costs of the plan:

(viii)

the extent to which any persons, or persons of a class or description, are likely to benefit from the plan:

(ix)

the extent to which any persons, or persons of a class or description, contribute to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan:

(x)

the rationale for the proposed allocation of costs:

(xi)

if it is proposed that the plan be funded by a levy under section 100L, how the proposed levy satisfies section 100L(5)(d) and what matters will be specified under section 100N(1):

(xii)

whether any unusual administrative problems or costs are expected in recovering the costs allocated to any of the persons whom the plan would require to pay the costs:

(d)

any other organism intended to be controlled:

(e)

the effects that, in the opinion of the person making the proposal, implementation of the plan would have on—

(i)

economic wellbeing, the environment, human health, enjoyment of the natural environment, and the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(ii)

the marketing overseas of New Zealand products:

(f)

if the plan would affect another pest management plan or a pathway management plan, how it is proposed to co-ordinate the implementation of the plans:

(g)

the powers in Part 6 that it is proposed to use to implement the plan:

(h)

each proposed rule and an explanation of its purpose:

(i)

the rules, if any, that are intended to be good neighbour rules:

(j)

the rules whose contravention is proposed to be an offence under this Act:

(k)

the management agency:

(l)

the means by which it is proposed to monitor or measure the achievement of the plan’s objectives:

(m)

the actions that it is proposed local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(n)

the basis, if any, on which the management agency is to pay compensation for losses incurred as a direct result of the implementation of the plan:

(o)

information on the disposal of the proceeds of any receipts arising in the course of implementing the plan:

(p)

whether the plan includes portions of road adjoining land it covers, as authorised by section 6, and, if so, the portions of road proposed to be included:

(q)

the anticipated costs of implementing the plan:

(r)

how it is proposed that the costs be funded:

(s)

the period for which it is proposed the plan be in force:

(t)

the consultation, if any, that has occurred on the proposal and the outcome of it:

(u)

any matter that the national policy direction requires be specified in a plan:

(v)

the steps that have been taken to comply with the process requirements in the national policy direction, if there were any.

Section 70: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

71 Second step: satisfaction on requirements

If the council is satisfied that section 70 has been complied with, the council may take the second step in the making of a plan, which is to consider whether the council is satisfied—

(a)

that the proposal is not inconsistent with—

(i)

the national policy direction; or

(ii)

any other pest management plan on the same organism; or

(iii)

any pathway management plan; or

(iv)

a regional policy statement or regional plan prepared under the Resource Management Act 1991; or

(v)

any regulations; and

(b)

that, during the development of the proposal, the process requirements for a plan in the national policy direction, if there were any, were complied with; and

(c)

that the proposal has merit as a means of eradicating or effectively managing the subject of the proposal, which means—

(i)

the organism proposed to be specified as a pest under the plan or the organisms proposed to be specified as pests under the plan; or

(ii)

the class or description of organism proposed to be specified as a pest under the plan or the classes or descriptions of organisms proposed to be specified as pests under the plan; and

(d)

that each subject is capable of causing at some time an adverse effect on 1 or more of the following in the region:

(i)

economic wellbeing:

(ii)

the viability of threatened species of organisms:

(iii)

the survival and distribution of indigenous plants or animals:

(iv)

the sustainability of natural and developed ecosystems, ecological processes, and biological diversity:

(v)

soil resources:

(vi)

water quality:

(vii)

human health:

(viii)

social and cultural wellbeing:

(ix)

the enjoyment of the recreational value of the natural environment:

(x)

the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(xi)

animal welfare; and

(e)

that, for each subject, the benefits of the plan would outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(f)

that, for each subject, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

would accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(g)

that, for each subject, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(h)

that each proposed rule—

(i)

would assist in achieving the plan’s objectives; and

(ii)

would not trespass unduly on the rights of individuals; and

(i)

that the proposal is not frivolous or vexatious; and

(j)

that the proposal is clear enough to be readily understood; and

(k)

that, if the council rejected a similar proposal within the last 3 years, new and material information answers the council’s objection to the previous proposal.

Section 71: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

72 Third step: satisfaction with consultation or requirement of more consultation

(1)

If the council is satisfied of the matters in section 71, the council may take the third step in the making of a plan, which is for the council to consider whether the council is satisfied—

(a)

that, if Ministers’ responsibilities may be affected by the plan, the Ministers have been consulted; and

(b)

that, if local authorities’ responsibilities may be affected by the plan, the authorities have been consulted; and

(c)

that the tangata whenua of the area who may be affected by the plan were consulted through iwi authorities and tribal runanga; and

(d)

that, if consultation with other persons is appropriate, sufficient consultation has occurred.

(2)

In considering whether the council is satisfied as required by subsection (1)(d), the council must have regard to the following:

(a)

the scale of the impacts on persons who are likely to be affected by the plan; and

(b)

whether the persons likely to be affected by the plan or their representatives have already been consulted and, if so, the nature of the consultation; and

(c)

the level of support for, or opposition to, the proposal from persons who are likely to be affected by it.

(3)

If the council is satisfied as required by subsection (1), the council must apply section 73.

(4)

If the council is not satisfied as required by subsection (1), the council may require consultation to be undertaken on the proposal.

(5)

If the council requires consultation to be undertaken, the council must determine the way or ways in which the consultation must be undertaken, including, but not limited to, ways such as—

(a)

consultation with persons likely to be affected by the plan or with their representatives:

(b)

the appointment by the council of 1 or more persons to carry out an independent inquiry into the proposal on terms of reference set by the council:

(c)

public notification of the proposal and the receipt of submissions.

(6)

After the consultation required by the council has been undertaken, the council must apply subsection (1) again.

Section 72: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

73 Fourth step: approval of preparation of plan and decision on management agency

(1)

If the council is satisfied as required by section 72(1) and is satisfied that the issues raised in all the consultation undertaken on the proposal have been considered, the council may take the fourth step in the making of a plan, which is to approve the preparation of a plan.

(2)

If the council approves the preparation of a plan, the council must apply section 100 to decide which body is to be the management agency.

Matters to be specified

(3)

A plan must specify the following matters:

(a)

the pest or pests to be eradicated or managed:

(b)

the plan’s objectives:

(c)

the principal measures to be taken to achieve the objectives:

(d)

the means by which the achievement of the plan’s objectives will be monitored or measured:

(e)

the sources of funding for the implementation of the plan:

(f)

the limitations, if any, on how the funds collected from those sources may be used to implement the plan:

(g)

the powers in Part 6 to be used to implement the plan:

(h)

the rules, if any:

(i)

the rules, if any, that are good neighbour rules:

(j)

the management agency:

(k)

the actions that local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(l)

the portions of road, if any, adjoining land covered by the plan and, as authorised by section 6, also covered by the plan:

(m)

the plan’s commencement date and termination date:

(n)

any matters required by the national policy direction.

Compensation

(4)

A plan—

(a)

may provide for the payment of compensation for losses incurred as a direct result of the implementation of the plan:

(b)

must not provide for the payment of compensation for the following losses:

(i)

loss suffered because a person’s income derived from feral or wild organisms is adversely affected by the implementation of the plan:

(ii)

loss suffered before an inspector or authorised person establishes the presence of the pest on the place of the person suffering the loss:

(iii)

loss suffered by a person who fails to comply with the plan.

Rules

(5)

A plan may include rules for all or any of the following purposes:

(a)

requiring a person to take specified actions to enable the management agency to determine or monitor the presence or distribution of the pest or a pest agent:

(b)

requiring a person to keep records of actions taken under the rules and to send to the management agency specified information based on the records:

(c)

requiring the identification of specified goods:

(d)

prohibiting or regulating specified methods that may be used in managing the pest:

(e)

prohibiting or regulating activities that may affect measures taken to implement the plan:

(f)

requiring audits or inspections of specified actions:

(g)

specifying, for the purposes of section 52(a), the circumstances in which the pest may be communicated, released, or otherwise spread:

(h)

requiring the occupier of a place to take specified actions to eradicate or manage the pest or a specified pest agent on the place:

(i)

requiring the occupier of a place to take specified actions to eradicate or manage the habitat of the pest or the habitat of a specified pest agent on the place:

(j)

prohibiting or regulating specified activities by the occupier of a place if the activities are of the kind that would promote the habitat of the pest on the place:

(k)

requiring the occupier of a place to carry out specified activities to promote the presence of organisms that assist in the control of the pest on the place:

(l)

prohibiting or regulating specified activities by the occupier of a place, which deter the presence on that place of organisms that assist in the control of the pest:

(m)

requiring the occupier of a place to carry out specified treatments or procedures to assist in preventing the spread of the pest:

(n)

requiring the owner or person in charge of goods to carry out specified treatments or procedures to assist in preventing the spread of the pest:

(o)

requiring the destruction of goods if the goods may contain or harbour the pest or otherwise pose a risk of spreading the pest:

(p)

prohibiting or regulating specified uses of goods that may promote the spread or survival of the pest:

(q)

prohibiting or regulating the use or disposal of organic material:

(r)

prohibiting or regulating the use of specified practices in the management of organisms that may promote the spread or survival of the pest:

(s)

prohibiting or regulating the movement of goods that may contain or harbour the pest or otherwise pose a risk of spreading the pest.

(6)

A rule may—

(a)

apply generally or to different classes or descriptions of persons, places, goods, or other things:

(b)

apply all the time or at 1 or more specified times of the year:

(c)

apply throughout the region or in a specified part or parts of the region with, if necessary, another rule on the same subject matter applying to another specified part of the region:

(d)

specify that a contravention of the rule creates an offence under section 154N(19).

Section 73: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

74 Fifth step: satisfaction on contents of plan and requirements

If the council is satisfied that section 73 has been complied with, the council may take the fifth step in the making of a plan, which is for the council to consider whether the council is satisfied, in relation to the plan prepared under section 73,—

(a)

that the plan is not inconsistent with—

(i)

the national policy direction; or

(ii)

any other pest management plan on the same organism; or

(iii)

any pathway management plan; or

(iv)

a regional policy statement or regional plan prepared under the Resource Management Act 1991; or

(v)

any regulations; and

(b)

that, for each subject of the plan, the benefits of the plan outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(c)

that, for each subject of the plan, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

will accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(d)

that, for each subject of the plan, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(e)

that each rule—

(i)

will assist in achieving the plan’s objectives; and

(ii)

will not trespass unduly on the rights of individuals.

Section 74: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

75 Sixth step: decision on plan

(1)

When the council is satisfied of the matters in section 74, the council must prepare a written report on the plan.

(2)

If the council has received submissions on the proposal, the council must—

(a)

set out in the report the council’s reasons for accepting or rejecting the submissions; and

(b)

give a copy of the report to every person who made a submission.

(3)

The report must give the council’s decision on the plan.

(4)

The council must give public notice—

(a)

stating the council’s decision on the plan; and

(b)

stating where the plan resulting from the council’s decision can be read.

Section 75: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

76 Application to Environment Court about plan

(1)

This section applies to the plan resulting from the council’s decision under section 75(3).

(2)

The following matters may be the subject of an application to the Environment Court:

(a)

any aspect of the plan:

(b)

whether the plan is inconsistent with the national policy direction:

(c)

whether the process requirements for a plan in the national policy direction, if there were any, were complied with.

(3)

If consultation on the proposal for the plan was undertaken by way of public notification of the proposal and the receipt of submissions, a person who made a submission on the proposal may make an application to the Environment Court.

(4)

If consultation on the proposal was undertaken other than by way of public notification of the proposal and the receipt of submissions, the following persons may make an application to the Environment Court:

(a)

a person who participated in consultation during the preparation of the proposal and whose views were provided or recorded in writing:

(b)

a person who participated in consultation on the proposal and whose views were provided or recorded in writing:

(c)

a person who is likely to be affected by the plan and did not participate in consultation only because the person was not given an opportunity to participate.

(5)

The application must be made within 15 working days after the date of the public notice.

(6)

The application is made under section 291 of the Resource Management Act 1991 and regulations made under the Resource Management Act 1991.

(7)

The court must hold a public hearing on the application.

(8)

The court must—

(a)

dismiss the application; or

(b)

direct the council to modify the plan, delete a provision from the plan, or insert a provision in the plan.

Section 76: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

77 Making of plan

(1)

A plan is made by the council fixing the council’s seal to the plan.

(2)

If no person makes an application under section 76, the council must make the plan.

(3)

If a person makes an application under section 76, the council must—

(a)

decide whether the matter dealt with in the application is severable from the rest of the plan; and

(b)

take 1 of the courses of action described in subsection (4).

(4)

The courses of action are as follows:

(a)

if the matter dealt with in the application is severable from the rest of the plan, the council must make the plan without the matter in it and, after the Environment Court’s decision, do the applicable 1 of the following:

(i)

if the Environment Court dismisses the application under section 76(8)(a), make the part of the plan that deals with the matter:

(ii)

if the Environment Court gives a direction under section 76(8)(b), comply with the direction before making the part of the plan that deals with the matter:

(b)

if the matter dealt with in the application is not severable from the rest of the plan and the Environment Court dismisses the application under section 76(8)(a), the council must make the plan:

(c)

if the matter dealt with in the application is not severable from the rest of the plan and the Environment Court gives a direction under section 76(8)(b), the council must comply with the direction before making the plan.

(5)

The council must give public notice of—

(a)

the making of the plan; and

(b)

the plan’s commencement date or dates, as follows:

(i)

the commencement date of a plan made in the circumstances described in subsection (2) or (4)(b) or (c) is the date on which the council fixes the council’s seal to the plan:

(ii)

the commencement dates of the parts of a plan made in the circumstances described in subsection (4)(a) are, for the part of the plan made first, the date on which the council fixes the council’s seal to that part and, for the part of the plan made after the Environment Court’s decision, the date on which the council fixes the council’s seal to that part.

Section 77: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

78 Exemptions from rules

(1)

The council may exempt a person from a requirement in a rule, without conditions or on conditions that the council considers appropriate.

(2)

The council may grant an exemption under subsection (1) only if—

(a)

the council is satisfied that granting the exemption will not significantly prejudice the attainment of the plan’s objectives; and

(b)

the council is satisfied that 1 or more of the following applies:

(i)

the requirement has been substantially complied with and further compliance is unnecessary:

(ii)

the action taken on, or provision made for, the matter to which the requirement relates is as effective as, or more effective than, compliance with the requirement:

(iii)

the requirement is clearly unreasonable or inappropriate in the particular case:

(iv)

events have occurred that make the requirement unnecessary or inappropriate in the particular case.

(3)

The council may exempt all persons, a specified class of persons, persons in a specified place, or persons responsible for specified goods or things from a requirement in a rule, without conditions or on conditions that the council considers appropriate.

(4)

The council may grant an exemption under subsection (3) only if the council is satisfied that events have occurred that make the requirement unnecessary or inappropriate.

(5)

Conditions on which the council grants an exemption must be consistent with the purpose of this Part and must be no more onerous than the requirement from which the exemption is granted.

(6)

The council must determine the period of an exemption that the council grants.

(7)

The council must provide a register that—

(a)

records, for each exemption granted,—

(i)

a description of the exemption; and

(ii)

the reasons for the exemption; and

(iii)

the period of the exemption; and

(b)

is available for the public to read free of charge—

(i)

at the council’s offices during the council’s normal office hours; or

(ii)

on an Internet site maintained by or on behalf of the council.

(8)

The following apply to the extension of the period of an exemption:

(a)

the council may grant an extension of the period; and

(b)

the extension must be granted before the end of the period; and

(c)

the extended period becomes the period of the exemption; and

(d)

the council may exercise the power in paragraph (a) more than once.

Section 78: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Pathway management plans

National pathway management plans

Headings: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

79 Definitions for sections 80 to 87

For the purposes of sections 80 to 87,—

management agency means a management agency responsible for implementing a national pathway management plan

plan means a national pathway management plan

proposal means a proposal for a national pathway management plan

rule means a rule in a national pathway management plan.

Section 79: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

80 Relationship of rules and plan with laws

(1)

To the extent to which a bylaw of a local authority is inconsistent with a rule applying to the same locality, the rule prevails.

(2)

If a plan imposes obligations and costs on the Crown, the Crown must comply with the obligations and meet the costs.

Section 80: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

81 First step: plan initiated by proposal

(1)

The first step in the making of a plan is a proposal made by—

(a)

a Minister; or

(b)

a person who submits the proposal to a Minister.

(2)

The proposal must set out the following matters:

(a)

the name of the person making the proposal:

(b)

the subject of the proposal, which means the pathway or pathways to which the proposal applies:

(c)

for each subject,—

(i)

a description of the actual or potential risks associated with it:

(ii)

the reasons for proposing a plan:

(iii)

the objectives that the plan would have:

(iv)

the principal measures that would be in the plan to achieve the objectives:

(v)

other measures that it would be reasonable to take to achieve the objectives, if there are any such measures, and the reasons why the proposed measures are preferable as a means of achieving the objectives:

(vi)

the reasons why a national plan is more appropriate than a regional plan:

(vii)

an analysis of the benefits and costs of the plan:

(viii)

the extent to which any persons, or persons of a class or description, are likely to benefit from the plan:

(ix)

the extent to which any persons, or persons of a class or description, contribute to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan:

(x)

the anticipated costs of implementing the plan:

(xi)

how it is proposed that the costs be funded:

(xii)

the rationale for the proposed allocation of costs:

(xiii)

if it is proposed that the plan be funded by a levy under section 100L, how the proposed levy satisfies section 100L(5)(d) and what matters will be specified under section 100N(1):

(xiv)

whether any unusual administrative problems or costs are expected in recovering the costs allocated to any of the persons whom the plan would require to pay the costs:

(d)

the effect that, in the opinion of the person making the proposal, implementation of the plan would have on—

(i)

economic wellbeing, the environment, human health, enjoyment of the natural environment, and the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(ii)

the marketing overseas of New Zealand products:

(e)

if the plan would affect another pathway management plan or a pest management plan, how it is proposed to co-ordinate the implementation of the plans:

(f)

the powers in Part 6 that it is proposed to use to implement the plan:

(g)

each proposed rule and an explanation of its purpose:

(h)

the rules whose contravention is proposed to be an offence under this Act:

(i)

the management agency:

(j)

the means by which it is proposed to monitor or measure the achievement of the plan’s objectives:

(k)

the actions that it is proposed local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(l)

the basis, if any, on which the management agency is to pay compensation for losses incurred as a direct result of the implementation of the plan:

(m)

information on the disposal of the proceeds of any receipts arising in the course of implementing the plan:

(n)

whether or not the plan would apply to the EEZ and, if it would, whether it would apply to all of it or parts of it and, if it would apply to parts, which parts:

(o)

whether the plan includes portions of road adjoining land it covers, as authorised by section 6, and, if so, the portions of road proposed to be included:

(p)

the period for which it is proposed the plan be in force:

(q)

the consultation, if any, that has occurred on the proposal and the outcome of it:

(r)

any matter that the national policy direction requires be specified in a plan:

(s)

the steps that have been taken to comply with the process requirements in the national policy direction, if there were any.

Section 81: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

82 Second step: satisfaction on requirements

If the Minister is satisfied that section 81 has been complied with, the Minister may take the second step in the making of a plan, which is to consider whether the Minister is satisfied—

(a)

that the proposal is not inconsistent with the national policy direction; and

(b)

that, during the development of the proposal, the process requirements for a plan in the national policy direction, if there were any, were complied with; and

(c)

that the proposal has merit as a means of managing the subject of the proposal, which means the pathway or pathways; and

(d)

that each subject could spread an organism that is capable of causing at some time an adverse effect on 1 or more of the following in New Zealand:

(i)

economic wellbeing:

(ii)

the viability of threatened species of organisms:

(iii)

the survival and distribution of indigenous plants or animals:

(iv)

the sustainability of natural and developed ecosystems, ecological processes, and biological diversity:

(v)

soil resources:

(vi)

water quality:

(vii)

human health:

(viii)

social and cultural wellbeing:

(ix)

the enjoyment of the recreational value of the natural environment:

(x)

the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(xi)

animal welfare; and

(e)

that, for each subject, the benefits of the plan would outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(f)

that, for each subject, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

would accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(g)

that, for each subject, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(h)

that the implementation of the plan would not be contrary to New Zealand’s international obligations; and

(i)

that each proposed rule—

(i)

would assist in achieving the plan’s objectives; and

(ii)

would not trespass unduly on the rights of individuals; and

(j)

that the proposal is not frivolous or vexatious; and

(k)

that the proposal is clear enough to be readily understood; and

(l)

that, if the Minister rejected a similar proposal within the last 3 years, new and material information answers the Minister’s objection to the previous proposal.

Section 82: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

83 Third step: satisfaction with consultation or requirement of more consultation

(1)

If the Minister is satisfied of the matters in section 82, the Minister may take the third step in the making of a plan, which is for the Minister to consider whether the Minister is satisfied—

(a)

that, if Ministers’ responsibilities may be affected by the plan, the Ministers have been consulted; and

(b)

that, if local authorities’ responsibilities may be affected by the plan, the authorities have been consulted; and

(c)

that, if consultation with tangata whenua or other persons is appropriate, sufficient consultation has occurred.

(2)

In considering whether the Minister is satisfied as required by subsection (1)(c), the Minister must have regard to the following:

(a)

the scale of the impacts on persons who are likely to be affected by the plan; and

(b)

whether the persons likely to be affected by the plan or their representatives have already been consulted and, if so, the nature of the consultation; and

(c)

the level of support for, or opposition to, the proposal from persons who are likely to be affected by it.

(3)

If the Minister is satisfied as required by subsection (1), the Minister must apply section 84.

(4)

If the Minister is not satisfied as required by subsection (1), the Minister may require consultation to be undertaken on the proposal.

(5)

If the Minister requires consultation to be undertaken, the Minister must determine the way or ways in which the consultation must be undertaken, including, but not limited to, ways such as—

(a)

consultation with persons likely to be affected by the plan or with their representatives:

(b)

the appointment by the Minister of 1 or more persons to carry out an independent inquiry into the proposal on terms of reference set by the Minister:

(c)

public notification of the proposal and the receipt of submissions.

(6)

After the consultation required by the Minister has been undertaken, the Minister must apply subsection (1) again.

Section 83: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

84 Fourth step: approval of preparation of plan and decision on management agency

(1)

If the Minister is satisfied as required by section 83(1) and is satisfied that the issues raised in all the consultation undertaken on the proposal have been considered, the Minister may take the fourth step in the making of a plan, which is to approve the preparation of a plan.

(2)

If the Minister approves the preparation of a plan, the Minister must apply section 100 to decide which body is to be the management agency.

Matters to be specified

(3)

A plan must specify the following matters:

(a)

the pathway or pathways to be managed:

(b)

the plan’s objectives:

(c)

the principal measures to be taken to achieve the objectives:

(d)

the means by which the achievement of the plan’s objectives will be monitored or measured:

(e)

the sources of funding for the implementation of the plan:

(f)

the limitations, if any, on how the funds collected from those sources may be used to implement the plan:

(g)

the powers in Part 6 to be used to implement the plan:

(h)

the rules, if any:

(i)

the management agency:

(j)

the actions that local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(k)

the parts of the EEZ to which the plan applies, if it applies to parts, or the fact that it applies to the whole EEZ, if it does:

(l)

the portions of road, if any, adjoining land covered by the plan and, as authorised by section 6, also covered by the plan:

(m)

the plan’s commencement date and, if there is one, its termination date:

(n)

any matters required by the national policy direction.

Compensation

(4)

A plan—

(a)

may provide for the payment of compensation for losses incurred as a direct result of the implementation of the plan:

(b)

must not provide for the payment of compensation for the following losses:

(i)

loss suffered because a person’s income derived from feral or wild organisms is adversely affected by the implementation of the plan:

(ii)

loss suffered by a person who fails to comply with the plan.

Rules

(5)

A plan may include rules for all or any of the following purposes:

(a)

requiring a person to keep records of actions taken under the rules and to send to the management agency specified information based on the records:

(b)

requiring the identification of specified goods:

(c)

prohibiting or regulating specified methods that may be used in managing the pathway:

(d)

prohibiting or regulating activities that may affect measures taken to implement the plan:

(e)

requiring audits or inspections of specified actions:

(f)

requiring the occupier of a place to carry out specified treatments or procedures to assist in preventing the spread of organisms that could be spread through the pathway:

(g)

requiring the owner or person in charge of goods or craft to carry out specified treatments or procedures to assist in preventing the spread of organisms that could be spread through the pathway:

(h)

requiring the destruction of goods in circumstances in which the goods pose a risk of spreading organisms that could be spread through the pathway:

(i)

prohibiting or regulating specified uses or movement of goods that may promote the spread of organisms through the pathway:

(j)

prohibiting or regulating the use or disposal of organic material on the pathway:

(k)

prohibiting or regulating the use of specified practices in the management of organisms that may promote the spread of organisms through the pathway.

(6)

A rule may—

(a)

apply generally or to different classes or descriptions of persons, places, goods, or other things:

(b)

apply all the time or at 1 or more specified times of the year:

(c)

apply throughout New Zealand or in a specified part or parts of New Zealand, with, if necessary, another rule on the same subject matter applying to another specified part of New Zealand:

(d)

specify that a contravention of the rule creates an offence under section 154N(18).

Section 84: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

85 Fifth step: satisfaction on contents of plan and requirements

If the Minister is satisfied that section 84 has been complied with, the Minister may take the fifth step in the making of a plan, which is for the Minister to consider whether the Minister is satisfied, in relation to the plan prepared under section 84,—

(a)

that the plan is not inconsistent with the national policy direction; and

(b)

that, for each subject of the plan, the benefits of the plan outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(c)

that, for each subject of the plan, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

will accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(d)

that, for each subject of the plan, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(e)

that each rule—

(i)

will assist in achieving the plan’s objectives; and

(ii)

will not trespass unduly on the rights of individuals; and

(f)

that the implementation of the plan is not contrary to New Zealand’s international obligations.

Section 85: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

86 Making of plan

(1)

If the Minister is satisfied of the matters in section 85, the Minister may recommend to the Governor-General that an Order in Council be made making the plan.

(2)

The order is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 86: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 86(2): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

87 Exemptions from rules

(1)

The following are exempt from the requirements in rules for acts or omissions in the course of an emergency as described in subsection (2):

(a)

the New Zealand Defence Force:

(b)

a Civil Defence Emergency Management Group established under the Civil Defence Emergency Management Act 2002:

(c)

the New Zealand Police:

(d)

the New Zealand Fire Service:

(e)

the National Rural Fire Authority:

(f)

rural fire authorities:

(g)

DHBs, as defined in section 6 of the New Zealand Public Health and Disability Act 2000.

(2)

An emergency is,—

(a)

for the purposes of subsection (1)(a), an emergency relating to—

(i)

a threat to New Zealand’s interests under section 5 of the Defence Act 1990:

(ii)

the safety of human life:

(iii)

the safety of ships or aircraft:

(iv)

the protection of the environment:

(v)

equipment or facilities of high value:

(b)

for the purposes of subsection (1)(b) to (g), a situation as described in paragraphs (a) and (b) of the definition of emergency in section 4 of the Civil Defence Emergency Management Act 2002.

(3)

The Minister may exempt a person from a requirement in a rule, without conditions or on conditions that the Minister considers appropriate.

(4)

The Minister may grant an exemption under subsection (3) only if—

(a)

the Minister is satisfied that granting the exemption will not significantly prejudice the attainment of the plan’s objectives; and

(b)

the Minister is satisfied that 1 or more of the following applies:

(i)

the requirement has been substantially complied with and further compliance is unnecessary:

(ii)

the action taken on, or provision made for, the matter to which the requirement relates is as effective as, or more effective than, compliance with the requirement:

(iii)

the requirement is clearly unreasonable or inappropriate in the particular case:

(iv)

events have occurred that make the requirement unnecessary or inappropriate in the particular case.

(5)

The Minister may exempt all persons, a specified class of persons, persons in a specified place, or persons responsible for specified goods or things from a requirement in a rule, without conditions or on conditions that the Minister considers appropriate.

(6)

The Minister may grant an exemption under subsection (5) only if the Minister is satisfied that events have occurred that make the requirement unnecessary or inappropriate.

(7)

Conditions on which the Minister grants an exemption must be consistent with the purpose of this Part and must be no more onerous than the requirement from which the exemption is granted.

(8)

The Minister must determine the period of an exemption that the Minister grants.

(9)

As soon as practicable after granting an exemption, the Minister must publish a notice in the Gazette giving—

(a)

a description of the exemption; and

(b)

the reasons for the exemption; and

(c)

the period of the exemption.

(10)

The following apply to the extension of the period of an exemption:

(a)

the Minister may grant an extension of the period; and

(b)

the extension must be granted before the end of the period; and

(c)

the extended period becomes the period of the exemption; and

(d)

the Minister may exercise the power in paragraph (a) more than once; and

(e)

extensions of the period of an exemption must be notified in the Gazette.

(11)

An exemption is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 87: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 87(11): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Regional pathway management plans

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

88 Definitions for sections 89 to 98

For the purposes of sections 89 to 98,—

council means a regional council

management agency means a management agency responsible for implementing a regional pathway management plan

plan means a regional pathway management plan

proposal means a proposal for a regional pathway management plan

rule means a rule in a regional pathway management plan.

Section 88: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

89 Relationship of rules with law

(1)

To the extent to which a regulation made under this or any other Act is inconsistent with a rule, the regulation prevails.

(2)

To the extent to which a rule in a national pest management plan is inconsistent with a rule, the rule in the national pest management plan prevails.

(3)

To the extent to which a rule in a national pathway management plan is inconsistent with a rule, the rule in the national pathway management plan prevails.

(4)

To the extent to which a bylaw of a local authority is inconsistent with a rule applying to the same locality, the rule prevails.

(5)

If a rule imposes obligations and costs on the Crown, the Crown must comply with the obligations and meet the costs.

Section 89: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

90 First step: plan initiated by proposal

(1)

The first step in the making of a plan is a proposal made by—

(a)

the council; or

(b)

a person who submits the proposal to the council.

(2)

The proposal must set out the following matters:

(a)

the name of the person making the proposal:

(b)

the subject of the proposal, which means the pathway or pathways to which the proposal applies:

(c)

for each subject,—

(i)

a description of the actual or potential risks associated with it:

(ii)

the reasons for proposing a plan:

(iii)

the objectives that the plan would have:

(iv)

the principal measures that would be in the plan to achieve the objectives:

(v)

other measures that it would be reasonable to take to achieve the objectives, if there are any such measures, and the reasons why the proposed measures are preferable as a means of achieving the objectives:

(vi)

an analysis of the benefits and costs of the plan:

(vii)

the extent to which any persons, or persons of a class or description, are likely to benefit from the plan:

(viii)

the extent to which any persons, or persons of a class or description, contribute to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan:

(ix)

the rationale for the proposed allocation of costs:

(x)

if it is proposed that the plan be funded by a levy under section 100L, how the proposed levy satisfies section 100L(5)(d) and what matters will be specified under section 100N(1):

(xi)

whether any unusual administrative problems or costs are expected in recovering the costs allocated to any of the persons whom the plan would require to pay the costs:

(d)

the effects that, in the opinion of the person making the proposal, implementation of the plan would have on—

(i)

economic wellbeing, the environment, human health, enjoyment of the natural environment, and the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(ii)

the marketing overseas of New Zealand products:

(e)

if the plan would affect another pathway management plan or a pest management plan, how it is proposed to co-ordinate the implementation of the plans:

(f)

the powers in Part 6 that it is proposed to use to implement the plan:

(g)

each proposed rule and an explanation of its purpose:

(h)

the rules whose contravention is proposed to be an offence under this Act:

(i)

the management agency:

(j)

the means by which it is proposed to monitor or measure the achievement of the plan’s objectives:

(k)

the actions that it is proposed local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(l)

the basis, if any, on which the management agency is to pay compensation for losses incurred as a direct result of the implementation of the plan:

(m)

information on the disposal of the proceeds of any receipts arising in the course of implementing the plan:

(n)

whether the plan includes portions of road adjoining land it covers, as authorised by section 6, and, if so, the portions of road proposed to be included:

(o)

the anticipated costs of implementing the plan:

(p)

how it is proposed that the costs be funded:

(q)

the period for which it is proposed the plan be in force:

(r)

the consultation, if any, that has occurred on the proposal and the outcome of it:

(s)

any matter that the national policy direction requires be specified in a plan:

(t)

the steps that have been taken to comply with the process requirements in the national policy direction, if there were any.

Section 90: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

91 Second step: satisfaction on requirements

If the council is satisfied that section 90 has been complied with, the council may take the second step in the making of a plan, which is to consider whether the council is satisfied—

(a)

that the proposal is not inconsistent with—

(i)

the national policy direction; or

(ii)

any other pathway management plan or pest management plan; or

(iii)

a regional policy statement or regional plan prepared under the Resource Management Act 1991; or

(iv)

any regulations; and

(b)

that, during the development of the proposal, the process requirements for a plan in the national policy direction, if there were any, were complied with; and

(c)

that the proposal has merit as a means of managing the subject of the proposal, which means the pathway or pathways; and

(d)

that each subject could spread an organism that is capable of causing at some time an adverse effect on 1 or more of the following in the region:

(i)

economic wellbeing:

(ii)

the viability of threatened species of organisms:

(iii)

the survival and distribution of indigenous plants or animals:

(iv)

the sustainability of natural and developed ecosystems, ecological processes, and biological diversity:

(v)

soil resources:

(vi)

water quality:

(vii)

human health:

(viii)

social and cultural wellbeing:

(ix)

the enjoyment of the recreational value of the natural environment:

(x)

the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga:

(xi)

animal welfare; and

(e)

that, for each subject, the benefits of the plan would outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(f)

that, for each subject, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

would accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(g)

that, for each subject, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(h)

that each proposed rule—

(i)

would assist in achieving the plan’s objectives; and

(ii)

would not trespass unduly on the rights of individuals; and

(i)

that the proposal is not frivolous or vexatious; and

(j)

that the proposal is clear enough to be readily understood; and

(k)

that, if the council rejected a similar proposal within the last 3 years, new and material information answers the council’s objection to the previous proposal.

Section 91: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

92 Third step: satisfaction with consultation or requirement of more consultation

(1)

If the council is satisfied of the matters in section 91, the council may take the third step in the making of a plan, which is for the council to consider whether the council is satisfied—

(a)

that, if Ministers’ responsibilities may be affected by the plan, the Ministers have been consulted; and

(b)

that, if local authorities’ responsibilities may be affected by the plan, the authorities have been consulted; and

(c)

that the tangata whenua of the area who may be affected by the plan were consulted through iwi authorities and tribal runanga; and

(d)

that, if consultation with other persons is appropriate, sufficient consultation has occurred.

(2)

In considering whether the council is satisfied as required by subsection (1)(d), the council must have regard to the following:

(a)

the scale of the impacts on persons who are likely to be affected by the plan; and

(b)

whether the persons likely to be affected by the plan or their representatives have already been consulted and, if so, the nature of the consultation; and

(c)

the level of support for, or opposition to, the proposal from persons who are likely to be affected by it.

(3)

If the council is satisfied as required by subsection (1), the council must apply section 93.

(4)

If the council is not satisfied as required by subsection (1), the council may require consultation to be undertaken on the proposal.

(5)

If the council requires consultation to be undertaken, the council must determine the way or ways in which the consultation must be undertaken, including, but not limited to, ways such as—

(a)

consultation with persons likely to be affected by the plan or with their representatives:

(b)

the appointment by the council of 1 or more persons to carry out an independent inquiry into the proposal on terms of reference set by the council:

(c)

public notification of the proposal and the receipt of submissions.

(6)

After the consultation required by the council has been undertaken, the council must apply subsection (1) again.

Section 92: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

93 Fourth step: approval of preparation of plan and decision on management agency

(1)

If the council is satisfied as required by section 92(1) and is satisfied that the issues raised in all the consultation undertaken on the proposal have been considered, the council may take the fourth step in the making of a plan, which is to approve the preparation of a plan.

(2)

If the council approves the preparation of a plan, the council must apply section 100 to decide which body is to be the management agency.

Matters to be specified

(3)

A plan must specify the following matters:

(a)

the pathway or pathways to be managed:

(b)

the plan’s objectives:

(c)

the principal measures to be taken to achieve the objectives:

(d)

the means by which the achievement of the plan’s objectives will be monitored or measured:

(e)

the sources of funding for the implementation of the plan:

(f)

the limitations, if any, on how the funds collected from those sources may be used to implement the plan:

(g)

the powers in Part 6 to be used to implement the plan:

(h)

the rules, if any:

(i)

the management agency:

(j)

the actions that local authorities, local authorities of a specified class or description, or specified local authorities may take to implement the plan, including contributing towards the costs of implementation:

(k)

the portions of road, if any, adjoining land covered by the plan and, as authorised by section 6, also covered by the plan:

(l)

the plan’s commencement date and, if there is one, its termination date:

(m)

any matters required by the national policy direction.

Compensation

(4)

A plan—

(a)

may provide for the payment of compensation for losses incurred as a direct result of the implementation of the plan:

(b)

must not provide for the payment of compensation for the following losses:

(i)

loss suffered because a person’s income derived from feral or wild organisms is adversely affected by the implementation of the plan:

(ii)

loss suffered by a person who fails to comply with the plan.

Rules

(5)

A plan may include rules for all or any of the following purposes:

(a)

requiring a person to keep records of actions taken under the rules and to send to the management agency specified information based on the records:

(b)

requiring the identification of specified goods:

(c)

prohibiting or regulating specified methods that may be used in managing the pathway:

(d)

prohibiting or regulating activities that may affect measures taken to implement the plan:

(e)

requiring audits or inspections of specified actions:

(f)

requiring the occupier of a place to carry out specified treatments or procedures to assist in preventing the spread of organisms that could be spread through the pathway:

(g)

requiring the owner or person in charge of goods or craft to carry out specified treatments or procedures to assist in preventing the spread of organisms that could be spread through the pathway:

(h)

requiring the destruction of goods in circumstances in which the goods pose a risk of spreading organisms that could be spread through the pathway:

(i)

prohibiting or regulating specified uses or movement of goods that may promote the spread of organisms through the pathway:

(j)

prohibiting or regulating the use or disposal of organic material on the pathway:

(k)

prohibiting or regulating the use of specified practices in the management of organisms that may promote the spread of organisms through the pathway.

(6)

A rule may—

(a)

apply generally or to different classes or descriptions of persons, places, goods, or other things:

(b)

apply all the time or at 1 or more specified times of the year:

(c)

apply throughout the region or in a specified part or parts of the region, with, if necessary, another rule on the same subject matter applying to another specified part of the region:

(d)

specify that a contravention of the rule creates an offence under section 154N(19).

Section 93: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

94 Fifth step: satisfaction on contents of plan and requirements

If the council is satisfied that section 93 has been complied with, the council may take the fifth step in the making of a plan, which is for the council to consider whether the council is satisfied, in relation to the plan prepared under section 93,—

(a)

that the plan is not inconsistent with—

(i)

the national policy direction; or

(ii)

any other pathway management plan or pest management plan; or

(iii)

a regional policy statement or regional plan prepared under the Resource Management Act 1991; or

(iv)

any regulations; and

(b)

that, for each subject of the plan, the benefits of the plan outweigh the costs, after taking account of the likely consequences of inaction or other courses of action; and

(c)

that, for each subject of the plan, persons who are required, as a group, to meet directly any or all of the costs of implementing the plan—

(i)

will accrue, as a group, benefits outweighing the costs; or

(ii)

contribute, as a group, to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan; and

(d)

that, for each subject of the plan, there is likely to be adequate funding for the implementation of the plan for the shorter of its proposed duration and 5 years; and

(e)

that each rule—

(i)

will assist in achieving the plan’s objectives; and

(ii)

will not trespass unduly on the rights of individuals.

Section 94: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

95 Sixth step: decision on plan

(1)

When the council is satisfied of the matters in section 94, the council must prepare a written report on the plan.

(2)

If the council has received submissions on the proposal, the council must—

(a)

set out in the report the council’s reasons for accepting or rejecting the submissions; and

(b)

give a copy of the report to every person who made a submission.

(3)

The report must give the council’s decision on the plan.

(4)

The council must give public notice—

(a)

stating the council’s decision on the plan; and

(b)

stating where the plan resulting from the council’s decision can be read.

Section 95: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

96 Application to Environment Court about plan

(1)

This section applies to the plan resulting from the council’s decision under section 95(3).

(2)

The following matters may be the subject of an application to the Environment Court:

(a)

any aspect of the plan:

(b)

whether the plan is inconsistent with the national policy direction:

(c)

whether the process requirements for a plan in the national policy direction, if there were any, were complied with.

(3)

If consultation on the proposal for the plan was undertaken by way of public notification of the proposal and the receipt of submissions, a person who made a submission on the proposal may make an application to the Environment Court.

(4)

If consultation on the proposal was undertaken other than by way of public notification of the proposal and the receipt of submissions, the following persons may make an application to the Environment Court:

(a)

a person who participated in consultation during the preparation of the proposal and whose views were provided or recorded in writing:

(b)

a person who participated in consultation on the proposal and whose views were provided or recorded in writing:

(c)

a person who is likely to be affected by the plan and did not participate in consultation only because the person was not given an opportunity to participate.

(5)

The application must be made within 15 working days after the date of the public notice.

(6)

The application is made under section 291 of the Resource Management Act 1991 and regulations made under the Resource Management Act 1991.

(7)

The court must hold a public hearing on the application.

(8)

The court must—

(a)

dismiss the application; or

(b)

direct the council to modify the plan, delete a provision from the plan, or insert a provision in the plan.

Section 96: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

97 Making of plan

(1)

A plan is made by the council fixing the council’s seal to the plan.

(2)

If no person makes an application under section 96, the council must make the plan.

(3)

If a person makes an application under section 96, the council must—

(a)

decide whether the matter dealt with in the application is severable from the rest of the plan; and

(b)

take 1 of the courses of action described in subsection (4).

(4)

The courses of action are as follows:

(a)

if the matter dealt with in the application is severable from the rest of the plan, the council must make the plan without the matter in it and, after the Environment Court’s decision, do the applicable 1 of the following:

(i)

if the Environment Court dismisses the application under section 96(8)(a), make the part of the plan that deals with the matter:

(ii)

if the Environment Court gives a direction under section 96(8)(b), comply with the direction before making the part of the plan that deals with the matter:

(b)

if the matter dealt with in the application is not severable from the rest of the plan and the Environment Court dismisses the application under section 96(8)(a), the council must make the plan:

(c)

if the matter dealt with in the application is not severable from the rest of the plan and the Environment Court gives a direction under section 96(8)(b), the council must comply with the direction before making the plan.

(5)

The council must give public notice of—

(a)

the making of the plan; and

(b)

the plan’s commencement date or dates, as follows:

(i)

the commencement date of a plan made in the circumstances described in subsection (2) or (4)(b) or (c) is the date on which the council fixes the council’s seal to the plan:

(ii)

the commencement dates of the parts of a plan made in the circumstances described in subsection (4)(a) are, for the part of the plan made first, the date on which the council fixes the council’s seal to that part and, for the part of the plan made after the Environment Court’s decision, the date on which the council fixes the council’s seal to that part.

Section 97: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

98 Exemptions from rules

(1)

The following are exempt from the requirements in rules for acts or omissions in the course of an emergency as described in subsection (2):

(a)

the New Zealand Defence Force:

(b)

a Civil Defence Emergency Management Group established under the Civil Defence Emergency Management Act 2002:

(c)

the New Zealand Police:

(d)

the New Zealand Fire Service:

(e)

the National Rural Fire Authority:

(f)

rural fire authorities:

(g)

DHBs, as defined in section 6 of the New Zealand Public Health and Disability Act 2000.

(2)

An emergency is,—

(a)

for the purposes of subsection (1)(a), an emergency relating to—

(i)

a threat to New Zealand’s interests under section 5 of the Defence Act 1990:

(ii)

the safety of human life:

(iii)

the safety of ships or aircraft:

(iv)

the protection of the environment:

(v)

equipment or facilities of high value:

(b)

for the purposes of subsection (1)(b) to (g), a situation as described in paragraphs (a) and (b) of the definition of emergency in section 4 of the Civil Defence Emergency Management Act 2002.

(3)

The council may exempt a person from a requirement in a rule, without conditions or on conditions that the council considers appropriate.

(4)

The council may grant an exemption under subsection (3) only if—

(a)

the council is satisfied that granting the exemption will not significantly prejudice the attainment of the plan’s objectives; and

(b)

the council is satisfied that 1 or more of the following applies:

(i)

the requirement has been substantially complied with and further compliance is unnecessary:

(ii)

the action taken on, or provision made for, the matter to which the requirement relates is as effective as, or more effective than, compliance with the requirement:

(iii)

the requirement is clearly unreasonable or inappropriate in the particular case:

(iv)

events have occurred that make the requirement unnecessary or inappropriate in the particular case.

(5)

The council may exempt all persons, a specified class of persons, persons in a specified place, or persons responsible for specified goods or things from a requirement in a rule, without conditions or on conditions that the council considers appropriate.

(6)

The council may grant an exemption under subsection (5) only if the council is satisfied that events have occurred that make the requirement unnecessary or inappropriate.

(7)

Conditions on which the council grants an exemption must be consistent with the purpose of this Part and must be no more onerous than the requirement from which the exemption is granted.

(8)

The council must determine the period of an exemption that the council grants.

(9)

The council must provide a register that—

(a)

records, for each exemption granted,—

(i)

a description of the exemption; and

(ii)

the reasons for the exemption; and

(iii)

the period of the exemption; and

(b)

is available for the public to read free of charge—

(i)

at the council’s offices during the council’s normal office hours; or

(ii)

on an Internet site maintained by or on behalf of the council.

(10)

The following apply to the extension of the period of an exemption:

(a)

the council may grant an extension of the period; and

(b)

the extension must be granted before the end of the period; and

(c)

the extended period becomes the period of the exemption; and

(d)

the council may exercise the power in paragraph (a) more than once.

Section 98: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Implementation of plans

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

99 Definitions for sections 100 to 100G

For the purposes of sections 100 to 100G,—

Minister or council means the Minister who recommended the making of the plan, in relation to a national pest management plan and a national pathway management plan, or the regional council that made the plan, in relation to a regional pest management plan or a regional pathway management plan

operational plan means a plan for the implementation of—

(a)

a national pest management plan:

(b)

a regional pest management plan:

(c)

a national pathway management plan:

(d)

a regional pathway management plan

plan means—

(a)

a national pest management plan:

(b)

a regional pest management plan:

(c)

a national pathway management plan:

(d)

a regional pathway management plan.

Section 99: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100 Management agencies

(1)

The management agency specified in a plan must be 1 of the following bodies:

(a)

a department:

(b)

a council:

(c)

a territorial authority:

(d)

a body corporate.

(2)

In deciding which body is to be the management agency, the Minister or council must take the following into consideration:

(a)

the need for accountability to those providing the funds to implement the plan; and

(b)

the acceptability of the body to—

(i)

those providing the funds to implement the plan; and

(ii)

those subject to management provisions under the plan; and

(c)

the capacity of the body to manage the plan, including the competence and expertise of the body’s employees and contractors.

(3)

Subsection (4) applies if a management agency—

(a)

gives the Minister or council a written notice of resignation; or

(b)

goes into liquidation, receivership, statutory management, or voluntary administration; or

(c)

ceases to exist.

(4)

The Minister or council must, as soon as practicable,—

(a)

appoint another body to be the management agency; and

(b)

publicly notify the appointment.

Section 100: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100A Powers in Part 6

(1)

A plan must be implemented using only the powers in Part 6 specified in the plan as those to be used to implement the plan.

(2)

The management agency specified in the plan may exercise a power in Part 6 to implement the plan only if the plan provides for the agency to exercise the power.

(3)

An authorised person may exercise a power in Part 6 to implement a plan only if—

(a)

the authorised person is appointed for the purposes of the plan; and

(b)

Part 6 gives the power to an authorised person; and

(c)

the plan specifies the power as one to be used to implement that plan.

Section 100A: replaced, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100B Operational plans

(1)

A management agency must—

(a)

prepare an operational plan within 3 months after the commencement date specified under section 64(3)(m), 73(3)(m), 84(3)(m), or 93(3)(l); and

(b)

review the operational plan annually; and

(c)

decide on appropriate amendments to the operational plan, if necessary; and

(d)

make copies of the operational plan and every amended version available to the public at cost; and

(e)

provide a copy of the operational plan and every amended version to the Minister or council.

(2)

A management agency must—

(a)

prepare a report on the operational plan and its implementation not later than 5 months after the end of each financial year; and

(b)

provide a copy of the report to the Minister or council.

(3)

A management agency for a regional pest management plan or regional pathway management plan—

(a)

may submit the report on the operational plan and its implementation for inclusion in the regional council’s annual report; and

(b)

must make the report on the operational plan and its implementation available to the public as a separate document, at cost, or as an extract from the annual report, at the cost of providing the extract.

(4)

The Minister or council may give the management agency written notice that the Minister or council intends to disallow all or part of an operational plan on the ground that the Minister or council believes that the whole operational plan, or the part of it, is inconsistent with the plan that the operational plan implements.

(5)

A notice under subsection (4)—

(a)

must be given before, or within 20 working days after, the Minister or council receives a copy of the operational plan or an amended version under subsection (1)(e); and

(b)

has the effect that the whole operational plan, or the part of it, is of no effect; and

(c)

may be revoked by a later written notice given by the Minister or council to the management agency allowing the whole operational plan or the part.

Section 100B: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100C Duration of plans

A plan ceases to have effect when the earliest of the following occurs:

(a)

the plan’s termination date is reached:

(b)

the Minister or council issues a public notice declaring that the plan’s objectives have been achieved:

(c)

the plan is revoked following a review under section 100D.

Section 100C: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100D Review of plans
Reasons for reviews

(1)

The Minister or council must initiate a review of a plan as a whole if—

(a)

the plan is due to terminate in less than 12 months and the Minister or council proposes to extend the plan’s duration; or

(b)

the plan is due to terminate in less than 12 months and a person submits a proposal to the Minister or council to extend the plan’s duration; or

(c)

the plan was last reviewed as a whole more than 10 years previously.

(2)

The Minister or council may review the whole or part of a plan if the Minister or council has reason to believe—

(a)

that the plan or part is failing to achieve its objectives; or

(b)

that relevant circumstances have changed since the plan or part commenced.

(3)

The Minister or council must review a plan or a relevant part of a plan if—

(a)

circumstances occur that are circumstances in which the national policy direction requires a review to be conducted; or

(b)

any other requirement of the national policy direction requires a review to be conducted.

Proposal for review

(4)

A review is initiated by a proposal made by the Minister or council or any other person.

(5)

The proposal—

(a)

must state whether the proposal is to amend, revoke, revoke and replace, or leave unchanged the plan or part of the plan; and

(b)

must give reasons for the proposal; and

(c)

must,—

(i)

if the proposal is to amend the plan or part of the plan, set out any proposed amendments in full; or

(ii)

if the proposal is to revoke and replace the plan or part of the plan, set out the replacement plan or part; and

(d)

must comply with section 61, 70, 81, or 90 to the extent to which the sections are relevant and reading in any necessary modifications; and

(e)

may propose that a pest or pathway, as appropriate, be added to the plan, whether or not the review is of the whole plan.

Provisions applying to reviews

(6)

Reviews are conducted under the following sections to the extent to which they are relevant and reading in any necessary modifications:

(a)

sections 59 to 67, for a national pest management plan:

(b)

sections 68 to 78, for a regional pest management plan:

(c)

sections 79 to 87, for a national pathway management plan:

(d)

sections 88 to 98, for a regional pathway management plan.

Action after review

(7)

Following the review, the Minister or council may approve—

(a)

the amendment of the plan or part of the plan; or

(b)

the revocation and replacement of the plan or part of the plan; or

(c)

the revocation of the plan or part of the plan; or

(d)

the leaving unchanged of the plan or part of the plan.

(8)

A plan that reaches its termination date during a review that has begun continues in force and its future is determined by the action that the Minister or council approves under subsection (7).

Consequence of not complying with section

(9)

A plan does not cease to be in force only because it is not reviewed as required by this section.

Section 100D: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100E Review of plans after national policy direction approved, amended, or revoked and replaced

(1)

This section applies when the national policy direction is—

(a)

approved by the Governor-General under section 57:

(b)

amended under section 58(1):

(c)

revoked and replaced under section 58(3).

(2)

In this section, references to the direction mean the national policy direction as approved by the Governor-General, amended, or replaced.

(3)

The Minister or council must determine whether a plan is inconsistent with the direction and must do so within the timing requirements in the direction.

(4)

If a plan is inconsistent with the direction but the changes to the plan necessary to resolve the inconsistency would not have a significant effect on any person’s rights and obligations, the Minister or council must act under section 100G and must do so within the timing requirements in the direction, if there are any.

(5)

If the plan is inconsistent with the direction and the changes to the plan necessary to resolve the inconsistency would have a significant effect on any person’s rights and obligations,—

(a)

the Minister or council must initiate a review to address the inconsistency under section 100D(4) within the timing requirements in the direction, if there are any; and

Section 100E: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100F Application to Environment Court if regional plan not reviewed

(1)

This section applies if a regional pest management plan or a regional pathway management plan is not reviewed as required by section 100D(3) or 100E.

(2)

A person may apply to the Environment Court on the basis that there is an inconsistency between the national policy direction and the regional pest management plan or the regional pathway management plan.

(3)

The application is made under section 291 of the Resource Management Act 1991 and regulations made under the Resource Management Act 1991.

(4)

The court must hold a public hearing on the application.

(5)

The court must—

(a)

dismiss the application; or

(b)

direct the council to modify the plan, delete a provision from the plan, or insert a provision in the plan.

(6)

The council must comply with a direction under subsection (5)(b).

Section 100F: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100G Minor changes to plans
National pest management plan or national pathway management plan

(1)

The Minister may recommend to the Governor-General the amendment of a national pest management plan or a national pathway management plan by Order in Council without a review under section 100D, if the Minister is satisfied that the amendment—

(a)

does not have a significant effect on any person’s rights and obligations; and

(b)

is not inconsistent with the national policy direction.

(2)

The Governor-General may make the order.

(3)

The order is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Regional pest management plan or regional pathway management plan

(4)

A regional pest management plan or a regional pathway management plan may be amended from time to time by a council by resolution without a review under section 100D, if the council is satisfied that the amendment—

(a)

does not have a significant effect on any person’s rights and obligations; and

(b)

is not inconsistent with the national policy direction.

Section 100G: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 100G(3): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Councils’ powers and duties relating to regional plans

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100H Councils’ powers and duties

(1)

This section applies to—

(a)

a regional pest management plan:

(b)

a regional pathway management plan.

(2)

The Local Government Act 2002 applies to the implementation of a plan by a council.

(3)

A council must not delegate—

(a)

the power to determine the ways in which consultation must be undertaken; or

(b)

the power to make, review, amend, or revoke a plan; or

(c)

the power to declare a small-scale management programme.

(4)

Two or more councils may prepare a plan jointly and, if they do, must each make it.

(5)

The following provisions apply to a plan prepared jointly and made by each council:

(a)

the councils must state in the plan whether it must be implemented by 1, some, or all of them:

(b)

if the plan must be implemented by 1 council, this Act and the plan have effect as if the regions of the councils are a single region with that council as the single council:

(c)

if the plan must be implemented by some or all of the councils,—

(i)

the plan must state the extent to which the councils are empowered to implement it outside their own regions; and

(ii)

this Act and the plan have effect as stated in the plan:

(d)

each council retains its power to amend or revoke the plan it has made.

(6)

The council must provide 1 copy of each plan made by the council to every public library in its area.

Section 100H: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Compensation

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100I Compensation

(1)

This section applies to a pest management plan.

(2)

Subsection (3) applies when—

(a)

a person owns—

(i)

domesticated organisms infected by a pest to which a pest management plan applies; or

(ii)

domesticated organisms that are pest agents for a pest to which a pest management plan applies; or

(iii)

domesticated organisms whose feral or wild population is a pest to which a pest management plan applies; and

(b)

some or all of the organisms are necessarily destroyed in the course of implementing the plan; and

(c)

there are net proceeds available from the disposal of the organisms destroyed.

(3)

The net proceeds—

(a)

must be paid to the owner if the plan does not provide for the payment of compensation to the owner of organisms destroyed:

(b)

must be paid to the owner instead of compensation if the compensation payable to the owner under the plan is less than the proceeds:

(c)

must be retained by the management agency in any other case.

(4)

If there is a dispute about eligibility for, or the amount of, compensation,—

(a)

the dispute must be submitted to arbitration; and

(b)

the arbitration must be conducted under the Arbitration Act 1996.

Section 100I: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Funding of implementation of plans

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100J Definitions for sections 100K to 100S

For the purposes of sections 100K to 100S, plan means—

(a)

a national pest management plan:

(b)

a regional pest management plan:

(c)

a national pathway management plan:

(d)

a regional pathway management plan.

Section 100J: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100K Limitation on expenditure

A management agency must not spend funds to meet the costs of implementing a plan in contravention of the limitations, if any, that the plan imposes on the expenditure of funds.

Section 100K: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Funding from levy

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100L Levy orders

(1)

The Governor-General may impose a levy for the purposes of wholly or partly funding the implementation of a plan or part of a plan.

(2)

The levy is payable to the plan’s management agency.

(3)

A levy may be imposed only by Order in Council.

(4)

A levy order may be made only on the recommendation of a Minister.

(5)

The Minister may make a recommendation only if satisfied, on the basis of information and evidence that the Minister regards as satisfactory, that—

(a)

persons likely to be affected by the payment or collection of the levy have been consulted; and

(b)

persons opposing the levy’s imposition have had a reasonable opportunity to put their views to the Minister; and

(c)

all views put to the Minister about the proposed imposition of the levy have been given due regard; and

(d)

the imposition of the levy is the most appropriate means of funding the plan or the part of the plan, having regard to the extent to which the levy would target—

(i)

persons likely to benefit from the implementation of the plan or the part of the plan; and

(ii)

persons who by their activities or inaction contribute to the creation, continuance, or exacerbation of the problems proposed to be resolved by the plan or the part of the plan; and

(e)

if the levy is imposed on quantities of a commodity imported, its imposition will not constitute a non-tariff barrier and will not be contrary to New Zealand’s international legal obligations; and

(f)

the management agency will have in place adequate systems of accounting to persons who will be responsible for paying the levy; and

(g)

all other relevant matters known to the Minister have been properly considered.

(6)

A levy order may be made from time to time.

(7)

The order is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 100L: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 100L(7): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

100M Effect of order

(1)

A person responsible for paying a levy set by a levy order must pay it.

(2)

The management agency may recover a levy from a person responsible for paying it as a debt due in a court of competent jurisdiction.

Section 100M: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100N Contents of order

(1)

A levy order must specify—

(a)

how the levy may be spent; and

(b)

the persons responsible for paying the levy; and

(c)

the persons, if any, exempt from paying the levy; and

(d)

the basis on which the amount of levy must be calculated or ascertained; and

(e)

on the rate of levy,—

(i)

whether there is to be a single rate or 2 or more different rates; and

(ii)

if there are to be 2 or more different rates, the things to which the different rates apply; and

(iii)

the maximum for each rate or rates; and

(iv)

how the management agency must set the actual rate or rates of levy; and

(v)

how the rate or rates of the levy and variations of the rate or rates must be notified; and

(f)

when and how the levy must be paid; and

(g)

the persons responsible for collecting the levy; and

(h)

on the matter of a fee for recovery,—

(i)

whether or not the persons responsible for collecting the levy are entitled to charge a fee for recovering it; and

(ii)

if so, the amount of the fee or a means by which its amount may be calculated or ascertained; and

(i)

for the purpose of ascertaining whether or not the order is being complied with,—

(i)

the keeping of accounts, statements, and records of a specified class or description by all or any of the persons responsible for collecting the levy, the persons responsible for paying it, and the management agency; and

(ii)

the retention of the accounts, statements, or records for a specified period; and

(j)

for the purpose of resolving disputes about whether or not a person is required to pay the levy and the amount of levy a person is required to pay,—

(i)

the appointment of arbitrators; and

(ii)

the procedures to be followed by arbitrators; and

(iii)

the remuneration of arbitrators; and

(iv)

the payment of arbitration costs; and

(v)

a right of appeal to a District Court Judge against decisions of arbitrators; and

(vi)

the procedures governing the exercise of the right of appeal; and

(vii)

any other matters relating to the resolution of disputes; and

(k)

the remuneration payable to an auditor appointed under section 100P.

(2)

A levy order may specify—

(a)

the returns to be made to the management agency or some other person or body for the purpose of enabling or assisting the determination of amounts of levy payable:

(b)

the circumstances in which, and conditions subject to which, persons may be allowed extensions of time for the payment of the levy:

(c)

a method of paying the levy that may be used by persons who object on conscientious or religious grounds to paying the levy in the manner provided in the order:

(d)

a requirement for the payment of additional or increased amounts of levy when amounts of levy originally payable have been paid late, paid in part, or not paid at all:

(e)

a requirement for the funds from which levy payments must be made to the management agency to be held on trust in a separate account.

(3)

A levy order may—

(a)

set a rate or rates initially at zero; or

(b)

provide for a rate or rates to be set at zero.

Section 100N: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100O Trust accounts for levy money

(1)

This section applies if a levy order specifies a requirement that the funds from which levy payments must be made to the management agency must be held on trust in a separate account.

(2)

For the purposes of this section, the amount outstanding to the management agency on a day by a person responsible for collecting the levy is calculated by subtracting the total of the levy payments that the person makes before that day to the management agency from the total of the amounts that subsection (4) requires the person to deposit in the account not later than a day before that day.

(3)

A person responsible for collecting the levy must—

(a)

keep an account—

(i)

at a registered bank within the meaning of the Reserve Bank of New Zealand Act 1989; and

(ii)

named in a way that identifies it as a trust account kept by the person responsible for collecting the levy; and

(b)

take all practicable steps to ensure that the account is used for holding only the amounts that subsection (4) requires to be deposited in it; and

(c)

take all practicable steps to ensure that the balance in the account on any day is not less than the amount outstanding to the management agency on that day by the person; and

(d)

on ceasing to be a person responsible for collecting the levy, continue to keep the account until all the levy money payable to the management agency for the period during which the person was responsible for collecting the levy has been paid.

(4)

A person responsible for collecting the levy must deposit amounts in the account by depositing an amount equal to the levy, calculated as specified in the levy order, in the account—

(a)

on the day or days specified in the order; or

(b)

on a day or days calculated as specified in the order.

(5)

The following amount in the account is held on trust for the management agency as levy money:

(a)

the amount outstanding to the management agency on a day by a person responsible for collecting the levy; or

(b)

if the amount held is less than the amount outstanding, all the money in the account.

(6)

The amount in the account held on trust for the management agency—

(a)

is not available for the payment of any other creditor of a person responsible for collecting the levy; and

(b)

is not liable to be attached or taken in execution at the instance of any other creditor of a person responsible for collecting the levy.

Section 100O: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100P Compliance audits for levy

(1)

This section applies while a levy order is in force.

(2)

If the management agency requests the Minister who recommended the making of the levy order to do so, the Minister may appoint 1 or more auditors to conduct an audit of the affairs of all or any of the following:

(a)

1 or more of the persons responsible for collecting the levy:

(b)

1 or more of the persons responsible for paying the levy.

(3)

The purpose of the audit is to ascertain the following matters, to the extent to which they are relevant to the affairs being audited and to which it is practicable to ascertain them, and to report to the Minister on them:

(a)

the extent to which persons responsible for paying the levy are doing and have done so:

(b)

the extent to which appropriate amounts of levy are being and have been paid:

(c)

the extent to which appropriate amounts of levy are being and have been collected:

(d)

the extent to which appropriate amounts of levy are being and have been paid to the management agency by the persons collecting the levy:

(e)

the extent to which accounts, statements, and records are being and have been kept:

(f)

the extent to which the accounts, statements, and records kept are properly kept.

(4)

If an arbitrator has been appointed to resolve a dispute, the Minister may appoint an auditor to conduct an audit of all or any of the persons involved in the dispute.

(5)

The purpose of the audit is to ascertain the matters of fact that are in dispute, to the extent to which it is practicable to ascertain them, and report them to the arbitrator, the persons involved, and the Minister.

(6)

No person is qualified for appointment as an auditor unless the person is a qualified auditor (within the meaning of section 35 of the Financial Reporting Act 2013).

(7)

No officer or employee of any of the following may be appointed an auditor:

(a)

the management agency:

(b)

a person responsible for collecting the levy:

(c)

a person responsible for paying the levy.

(8)

A person appointed as an auditor is entitled to receive from the management agency the remuneration provided for in the order.

Section 100P: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 100P(6): replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).

100Q Power of auditors to require production of documents

(1)

This section applies to an auditor appointed under section 100P.

(2)

The Minister may authorise the auditor, for the purposes of conducting an audit, to—

(a)

require the management agency, a person responsible for collecting the levy, a person responsible for paying the levy, or an employee or officer of any of the preceding 3 persons to produce for inspection in a reasonable period specified by the auditor documents that—

(i)

are accounts, statements, or records; and

(ii)

are required to be kept by this Act or a levy order; and

(iii)

are in the possession or under the control of the management agency or person; and

(b)

take copies of or extracts from the documents.

(3)

An authorisation under subsection (2) must—

(a)

be written; and

(b)

state the auditor’s full name; and

(c)

refer to this section; and

(d)

state the powers conferred on the auditor; and

(e)

state whether the powers are conferred specifically or generally.

(4)

The auditor may act under the authorisation.

(5)

The auditor must not disclose any information the auditor obtains as a result of acting under the authorisation to any other person, except that the auditor may disclose information—

(b)

to a Minister:

(c)

to a person authorised by a Minister to receive it:

(d)

for the purposes of a prosecution under this Act:

(e)

for the purposes of an action for the recovery of an amount due under this Act.

(6)

The Official Information Act 1982 applies to information held by a Minister that was obtained under this section.

Section 100Q: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100R Management agency to account for levy

(1)

As soon as practicable after the end of a financial year in which a levy has been paid to a management agency, the agency must prepare the following for the year:

(a)

a statement of the money paid to the agency as levy in the year:

(b)

a statement of the assets the agency has at the end of the year as a result of money paid as levy in the year:

(c)

a statement of the agency’s receipt and expenditure of money paid as levy in the year:

(d)

all other statements necessary to show fully—

(i)

the agency’s financial position as a result of money paid as levy in the year; and

(ii)

the financial results of all of the agency’s activities involving the use of money paid as levy in the year or the use of assets the agency has at the end of the year as a result of money paid as levy in the year.

(2)

The management agency must ensure that the statements are audited within 5 months after the end of the year.

Section 100R: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100S Orders are confirmable instruments

The explanatory note of a levy order made under section 100L must indicate that—

(a)

it is a confirmable instrument under section 47B of the Legislation Act 2012; and

(b)

it is revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and

(c)

the stated time is the applicable deadline under section 47C(1)(a) or (b) of that Act.

Section 100S: replaced, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

Funding from rates

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100T Regional pest management plan or regional pathway management plan

(1)

A regional council must decide the extent to which it should fund the implementation of its regional pest management plan or its regional pathway management plan from a general rate, a targeted rate, or a combination of both, set and assessed under the Local Government (Rating) Act 2002.

(2)

In making the decision, the council must have regard to—

(a)

the extent to which the plan relates to the interests of the occupiers of the properties on which the rate would be levied:

(b)

the extent to which the occupiers of the properties on which the rate would be levied will obtain direct or indirect benefits from the implementation of the plan:

(c)

the collective benefits of the implementation of the plan to the occupiers of the properties on which the rate would be levied compared with the collective costs to them of the rate:

(d)

for the regional pest management plan, the extent to which the characteristics of the properties on which the rate would be levied and the uses to which they are put contribute to the presence or prevalence of the pest or pests covered by it:

(e)

for the regional pathway management plan, the extent to which the characteristics of the properties on which the rate would be levied and the uses to which they are put contribute to the actual or potential risks associated with the pathway.

Section 100T: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100U National pest management plan or national pathway management plan

Section 100T does not limit or affect the powers of a council under the Local Government (Rating) Act 2002 to set and assess rates for the purpose of exercising a power that this Act confers on the council in relation to—

(a)

national pest management plans; or

(b)

national pathway management plans; or

(c)

small-scale management programmes.

Section 100U: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Small-scale management programmes

Heading: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100V Regional council may declare small-scale management programme

(1)

A regional council may declare a small-scale management programme consisting of—

(a)

small-scale measures to eradicate or control an unwanted organism; and

(b)

provisions for compensation for losses caused by the programme.

(2)

The council may declare the programme if satisfied that—

(a)

an unwanted organism present in the region could cause serious adverse and unintended effects unless early action is taken to control it; and

(b)

the organism can be eradicated or controlled effectively by small-scale measures within 3 years of the measures starting, because—

(i)

its distribution is limited; and

(ii)

technical means to control it are available; and

(c)

the programme is not inconsistent with the national policy direction; and

(d)

the process requirements in the national policy direction for declaring the programme, if there were any, were complied with; and

(e)

the taking of the measures and, if necessary, payment of compensation is likely to cost less than an amount prescribed for the purposes of this section by the Governor-General by Order in Council; and

(f)

the taking of the measures is unlikely to result in significant monetary loss to any person, other than a person who has contributed to the presence or spread of the organism by failing to comply with biosecurity law.

(3)

The council may—

(a)

include in the programme provision for a person other than the council to take steps to bring an organism under control; and

(b)

meet all or some of the costs to the person of taking the steps.

(4)

The council declares the programme by giving public notice in a manner appropriate to the distribution of the organism and the persons likely to be affected by the programme.

(5)

The public notice must specify—

(a)

the unwanted organism that is the subject of the programme; and

(b)

the objectives of the programme; and

(c)

the powers to be exercised under Part 6 to implement the programme.

(6)

A programme ceases to have effect on the occurrence of the earliest of the following:

(a)

the regional council declares by public notice that the programme is failing to control the organism:

(b)

the regional council declares by public notice that the organism has been eradicated or controlled:

(c)

5 years have passed after the declaration of the programme.

Section 100V: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100W Exercise of powers under programme

(1)

A small-scale management programme must be implemented using only the powers in Part 6 specified in the public notice.

(2)

An authorised person may exercise a power in Part 6 to implement a programme only if—

(a)

the authorised person is appointed for the purposes of the programme; and

(b)

Part 6 gives the power to an authorised person; and

(c)

the public notice specifies the power as one to be used to implement the programme.

(3)

An occupier of a place on which work is to be done to implement the programme must receive a notice as follows:

(a)

the notice must incorporate the details in the public notice:

(b)

the notice must specify the work to be done:

(c)

the notice must be received not less than 5 working days before the work is due to start.

(4)

Subsection (3) does not apply if the regional council is satisfied that there are reasonable grounds to believe that the unwanted organism may spread beyond the place before the end of 5 working days.

Section 100W: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Part 5A Government/industry agreement for readiness or response

Part 5A: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100X Purpose of Part 5A

The purpose of this Part is to provide a framework that enables the government and industry to work together in partnership to achieve the best possible outcomes from readiness or response activities by—

(a)

making joint decisions on the activities; and

(b)

jointly funding the costs of the activities in shares that take into account the public benefits and industry benefits that the activities deliver.

Section 100X: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100Y Definitions for Part 5A

(1)

In this Part,—

agreement means the government/industry agreement for readiness or response

government/industry agreement for readiness or response means the agreement described in section 100Z

industry organisation means an organisation described in section 100ZA

payee means the person to whom the levy is payable under section 100ZC(2)

readiness or response activity means a readiness activity or a response activity

readiness or response levy order means an Order in Council made under section 100ZB

sector means a group made up of businesses—

(a)

that are engaged in 1 or more of the following activities:

(i)

producing animals:

(ii)

producing animal products:

(iii)

harvesting animals:

(iv)

harvesting animal products:

(v)

producing plants:

(vi)

producing plant products:

(vii)

harvesting plants:

(viii)

harvesting plant products:

(ix)

processing animals, animal products, plants, or plant products that have been produced or harvested; or

(b)

that, although engaged in a different activity from any of those described in paragraph (a), would benefit directly from readiness or response activities.

(2)

A readiness activity means an activity undertaken to prepare to prevent or reduce the impact that an unwanted organism that is not present in New Zealand would have if it were to enter New Zealand.

(3)

A response activity means an activity undertaken—

(a)

after an event described in subsection (4); and

(b)

for a purpose described in subsection (5).

(4)

The events are—

(a)

the detection of an unwanted organism not previously known to be present in New Zealand:

(b)

the appearance of different effects of an unwanted organism known to be present in New Zealand and capable of being eradicated:

(c)

the development of new control methods that could make it possible to eradicate an unwanted organism known to be present in New Zealand.

(5)

The purposes are—

(a)

to investigate the unwanted organism:

(b)

to minimise the impact of the unwanted organism on natural and physical resources, human health, and overseas market access for New Zealand products:

(c)

to control the spread of the unwanted organism:

(d)

to reduce the geographical distribution of the unwanted organism:

(e)

to eradicate the unwanted organism.

(6)

A response activity ends when—

(a)

the unwanted organism is confirmed to be eradicated; or

(b)

long term arrangements for controlling the unwanted organism have been developed for implementation; or

(c)

the decision-makers for the response activity decide that it is appropriate to take no action, or no further action, on the unwanted organism.

Section 100Y: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100Z Government/industry agreement for readiness or response

(1)

The government/industry agreement for readiness or response is the agreement described in this section.

(2)

The agreement is made by deed between the Director-General and 1 or more industry organisations.

(3)

The agreement consists of,—

(a)

for a party to the deed that makes an operational agreement with the Director-General, the deed and the operational agreement:

(b)

for a party to the deed that does not make an operational agreement with the Director-General, the deed.

(4)

The agreement may include provisions on 1 or more of the following matters:

(a)

the unwanted organisms against which the parties wish to undertake readiness or response activities:

(b)

readiness or response activities that the parties have agreed to undertake:

(c)

joint decision-making on the readiness or response activities that the parties wish to undertake:

(d)

the sharing of the costs of the readiness or response activities, which may include decisions on matters such as—

(i)

the proportions in which the parties will share the costs:

(ii)

the methods by which each party will provide its share of the costs:

(iii)

whether or not an industry party will limit its liability to meet costs by setting a fiscal cap:

(e)

the variation of the compensation provisions in section 162A, subject to the restriction that the Director-General may agree to vary the compensation provisions only if satisfied that the alternative provisions are unlikely to discourage early reporting of unwanted organisms or reduce the level of co-operation with readiness or response activities:

(f)

how the parties will engage on issues relating to parts of the biosecurity system other than readiness or response activities:

(g)

any other matter that the parties agree on.

(5)

Subsection (6) applies to the exercise of a statutory power under—

(a)

this Act; or

(b)

any other Act that confers powers to carry out readiness or response activities as defined in this Act.

(6)

The exercise of the power cannot be challenged on the ground that it was the result of a joint decision under the agreement.

Section 100Z: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100ZA Industry organisation

(1)

An industry organisation is an organisation named in a notice published under subsection (2).

(2)

If the Minister is satisfied that an organisation meets the criteria in subsections (3), (4), (6), (7), and (9), the Minister must publish a notice in the Gazette stating that the organisation named in the notice represents the sector specified in the notice for the purposes of this Part.

(3)

The organisation must be a body corporate.

(4)

The organisation must represent the interests of a sector.

(5)

In deciding whether an organisation represents the interests of a sector, the Minister may include the following among the factors that the Minister takes into account:

(a)

whether the businesses that comprise the sector that the organisation claims to represent are able to be members of the organisation or another body that is a member of the organisation:

(b)

the proportion of businesses that comprise the sector that are members of the organisation or another body that is a member of the organisation:

(c)

how accountable the executive of the organisation is to members of the organisation.

(6)

The organisation must have consulted the sector that would be affected by the organisation becoming a party to the agreement about the following matters:

(a)

the proposal that the organisation become a party to the agreement; and

(b)

the way in which it is proposed that the sector’s views will be represented by the organisation during joint decision-making under the agreement; and

(c)

the arrangements proposed to fund the organisation’s commitments under the agreement.

(7)

The organisation must have had due regard to the views expressed during the consultation.

(8)

In deciding whether an organisation has had due regard to the views expressed during the consultation, the Minister must also have regard to the views expressed during the consultation.

(9)

The organisation must—

(a)

have arrangements in place to fund its commitments under the agreement; or

(b)

have an adequate plan as to how it is going to fund its commitments under the agreement.

Section 100ZA: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100ZB Readiness or response levy orders

(1)

The Governor-General may impose a levy for the purposes of wholly or partly funding an industry organisation’s commitments under the agreement.

(2)

A levy may be imposed only by Order in Council.

(3)

A levy order may be made only on the recommendation of the responsible Minister.

(4)

A levy may be imposed on a sector specified in a Gazette notice under section 100ZA.

(5)

In addition, the levy may be imposed on persons outside a sector specified in a Gazette notice under section 100ZA if—

(a)

the Minister is satisfied that—

(i)

the persons are represented by an industry organisation that is a party to the agreement; and

(ii)

the persons are likely to receive benefits from the readiness or response activities to be funded from the levy; and

(iii)

the costs to the persons of paying the levy are not disproportionate to the benefits that they are likely to receive; or

(b)

the Minister is satisfied that—

(i)

the levy is the most effective and efficient means of collecting funds from the sector that the organisation represents; and

(ii)

it is not practicable to exclude the persons from the application of the levy; and

(iii)

the persons are likely to receive benefits from the readiness or response activities to be funded from the levy; and

(iv)

the costs to the persons of paying the levy are not disproportionate to the benefits that they are likely to receive.

(6)

The Minister must not recommend that a levy order be made unless satisfied that the proposed levy payers have been consulted and their views taken into account.

(7)

For the purposes of subsection (6), the Minister may be satisfied by consultation undertaken under section 100ZA(6).

(8)

A levy order may be made from time to time.

(9)

A levy order is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Section 100ZB: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 100ZB(9): replaced, on 1 February 2014, by section 77(3) of the Legislation Act 2012 (2012 No 119).

100ZC Effect of order

(1)

This section applies to a levy imposed by a readiness or response levy order.

(2)

The levy may be payable to—

(a)

the Director-General; or

(b)

the industry organisation.

(3)

If the levy is payable to the industry organisation, it is payable to enable the organisation to meet its commitments under the agreement.

(4)

A person responsible for paying the levy must pay it.

(5)

The payee may recover a levy from a person responsible for paying it as a debt due in a court of competent jurisdiction.

Section 100ZC: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100ZD Contents of order

(1)

A readiness or response levy order must specify—

(a)

how the levy may be spent; and

(b)

the persons responsible for paying the levy; and

(c)

the persons, if any, exempt from paying the levy; and

(d)

the basis on which the amount of levy must be calculated or ascertained; and

(e)

on the rate of levy,—

(i)

whether there is to be a single rate or 2 or more different rates; and

(ii)

if there are to be 2 or more different rates, the things to which the different rates apply; and

(iii)

the maximum for each rate or rates; and

(iv)

the setting of the actual rate by the payee so that the industry organisation can meet its commitments under the agreement; and

(v)

how the rate or rates of the levy and variations of the rate or rates must be notified; and

(f)

when and how the levy must be paid; and

(g)

the persons responsible for collecting the levy; and

(h)

on the matter of a fee for recovery,—

(i)

whether or not the persons responsible for collecting the levy are entitled to charge a fee for recovering it; and

(ii)

if so, the amount of the fee or a means by which its amount may be calculated or ascertained; and

(i)

for the purpose of ascertaining whether or not the order is being complied with,—

(i)

the keeping of accounts, statements, and records of a specified class or description by all or any of the persons responsible for collecting the levy, the persons responsible for paying it, and the payee; and

(ii)

the retention of the accounts, statements, or records for a specified period; and

(j)

for the purpose of resolving disputes about whether or not a person is required to pay the levy and the amount of levy a person is required to pay,—

(i)

the appointment of arbitrators; and

(ii)

the procedures to be followed by arbitrators; and

(iii)

the remuneration of arbitrators; and

(iv)

the payment of arbitration costs; and

(v)

a right of appeal to a District Court Judge against decisions of arbitrators; and

(vi)

the procedures governing the exercise of the right of appeal; and

(vii)

any other matters relating to the resolution of disputes; and

(k)

the remuneration payable to an auditor appointed under section 100ZF.

(2)

A readiness or response levy order may specify—

(a)

the returns to be made to the payee for the purpose of enabling or assisting the determination of amounts of levy payable:

(b)

the circumstances in which, and conditions subject to which, persons may be allowed extensions of time for the payment of the levy:

(c)

a method of paying the levy that may be used by persons who object on conscientious or religious grounds to paying the levy in the manner provided in the order:

(d)

a requirement for the payment of additional or increased levy when amounts of levy originally payable have been paid late, paid in part, or not paid at all:

(e)

a requirement for the funds from which levy payments must be made to the payee to be held on trust in a separate account.

(3)

A readiness or response levy order may—

(a)

set a rate or rates initially at zero; or

(b)

provide for a rate or rates to be set at zero.

Section 100ZD: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100ZE Trust accounts for levy money

(1)

This section applies if a readiness or response levy order specifies a requirement that the funds from which levy payments must be made to the payee must be held on trust in a separate account.

(2)

For the purposes of this section, the amount outstanding to the payee on a day by a person responsible for collecting the levy is calculated by subtracting the total of the levy payments that the person makes before that day to the payee from the total of the amounts that subsection (4) requires the person to deposit in the account not later than a day before that day.

(3)

A person responsible for collecting the levy must—

(a)

keep an account—

(i)

at a registered bank within the meaning of the Reserve Bank of New Zealand Act 1989; and

(ii)

named in a way that identifies it as a trust account kept by the person responsible for collecting the levy; and

(b)

take all practicable steps to ensure that the account is used for holding only the amounts that subsection (4) requires to be deposited in it; and

(c)

take all practicable steps to ensure that the balance in the account on any day is not less than the amount outstanding to the payee on that day by the person; and

(d)

on ceasing to be a person responsible for collecting the levy, continue to keep the account until all the levy money payable to the payee for the period during which the person was responsible for collecting the levy has been paid.

(4)

A person responsible for collecting the levy must deposit amounts in the account by depositing an amount equal to the levy, calculated as specified in the readiness or response levy order, in the account—

(a)

on the day or days specified in the order; or

(b)

on a day or days calculated as specified in the order.

(5)

The following amount in the account is held on trust for the payee as levy money:

(a)

the amount outstanding to the payee on a day by a person responsible for collecting the levy; or

(b)

if the amount held is less than the amount outstanding, all the money in the account.

(6)

The amount in the account held on trust for the payee—

(a)

is not available for the payment of any other creditor of a person responsible for collecting the levy; and

(b)

is not liable to be attached or taken in execution at the instance of any other creditor of a person responsible for collecting the levy.

Section 100ZE: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100ZF Compliance audits for levy

(1)

This section applies while a readiness or response levy order is in force.

(2)

If the payee requests the Minister to do so, the Minister may appoint 1 or more auditors to conduct an audit of the affairs of all or any of the following:

(a)

1 or more of the persons responsible for collecting the levy:

(b)

1 or more of the persons responsible for paying the levy.

(3)

The purpose of the audit is to ascertain the following matters, to the extent to which they are relevant to the affairs being audited and to which it is practicable to ascertain them, and to report to the Minister on them:

(a)

the extent to which persons responsible for paying the levy are doing and have done so:

(b)

the extent to which appropriate amounts of the levy are being and have been paid:

(c)

the extent to which appropriate amounts of the levy are being and have been collected:

(d)

the extent to which appropriate amounts of the levy are being and have been paid over to the payee by the person collecting it:

(e)

the extent to which accounts, statements, and records are being and have been kept:

(f)

the extent to which the accounts, statements, and records kept are properly kept.

(4)

If an arbitrator has been appointed to resolve a dispute, the Minister may appoint an auditor to conduct an audit of all or any of the persons involved in the dispute.

(5)

The purpose of the audit is to ascertain the matters of fact that are in dispute, to the extent to which it is practicable to ascertain them, and report them to the arbitrator, the persons involved, and the Minister.

(6)

No person is qualified for appointment as an auditor unless the person is a qualified auditor (within the meaning of section 35 of the Financial Reporting Act 2013).

(7)

No officer or employee of any of the following may be appointed an auditor:

(a)

the payee:

(b)

a person responsible for collecting the levy:

(c)

a person responsible for paying the levy.

(8)

A person appointed as an auditor is entitled to receive from the payee the remuneration provided for in the order.

Section 100ZF: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 100ZF(6): replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).

100ZG Power of auditors to require production of documents

(1)

This section applies to an auditor appointed under section 100ZF.

(2)

The Minister may authorise the auditor, for the purposes of conducting an audit, to—

(a)

require the payee, a person responsible for collecting the levy, a person responsible for paying the levy, or an employee or officer of any of the preceding 3 persons to produce for inspection in a reasonable period specified by the auditor documents that—

(i)

are accounts, statements, or records; and

(ii)

are required to be kept by this Act or a levy order; and

(iii)

are in the possession or under the control of the payee or person; and

(b)

take copies of or extracts from the documents.

(3)

An authorisation under subsection (2) must—

(a)

be written; and

(b)

state the auditor’s full name; and

(c)

refer to this section; and

(d)

state the powers conferred on the auditor; and

(e)

state whether the powers are conferred specifically or generally.

(4)

An auditor who acts under an authorisation must not disclose any information the auditor obtains as a result of acting under it to any other person, except that the auditor may disclose information—

(b)

to a Minister:

(c)

to a person authorised by a Minister to receive it:

(d)

for the purposes of a prosecution under this Act:

(e)

for the purposes of an action for the recovery of an amount due under this Act.

(5)

The Official Information Act 1982 applies to information held by a Minister that was obtained under this section.

Section 100ZG: inserted, on 18 September 2012, by section 39 of the Biosecurity Law Reform Act 2012 (2012 No 73).

100ZH Orders are confirmable instruments

The explanatory note of a readiness or response levy order made under section 100ZB must indicate that—

(a)

it is a confirmable instrument under section 47B of the Legislation Act 2012; and

(b)

it is revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and

(c)

the stated time is the applicable deadline under section 47C(1)(a) or (b) of that Act.

Section 100ZH: replaced, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

Part 6 Administrative provisions

Appointments and delegations

101 Chief technical officers

(1)

The Director-General shall appoint chief technical officers for the purposes of this Act, being in each case a person with appropriate experience, technical competence, and qualifications relevant to the area of responsibilities allocated by the Director-General to that person.

(2)

The chief executive of a department recognised by the responsible Minister as having responsibilities for natural and physical resources or human health that could be adversely affected by an organism may appoint chief technical officers for the purposes of this Act, being in each case a person with appropriate experience, technical competence, and qualifications relevant to the area of responsibilities allocated by the chief executive to that person.

(2A)

A person appointed as a chief technical officer must be employed under the State Sector Act 1988.

(3)

A chief technical officer appointed under subsection (2) may exercise all the powers and perform all the functions and duties conferred on a chief technical officer by this Act except those powers conferred under sections 103(1), 116, 126, and 127.

(4)

The chief executive (including the Director-General) may not delegate to any person the power to appoint chief technical officers.

Compare: 1967 No 50 s 2

Section 101(2): replaced, on 26 November 1997, by section 66 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 101(2A): inserted, on 8 July 2003, by section 11 of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 101(3): inserted, on 26 November 1997, by section 66 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 101(4): inserted, on 15 December 2005, by section 3 of the Biosecurity Amendment Act 2005 (2005 No 91).

102 Deputy chief technical officers

(1)

The Director-General and the chief executive of any other department may appoint, in respect of any chief technical officer appointed by the Director-General or that chief executive, 1 or more deputy chief technical officers who must in each case be a person with appropriate experience, technical competence, and qualifications relevant to the area of responsibilities allocated by the chief executive to that person.

(lA)

A person appointed as a deputy chief technical officer must be employed under the State Sector Act 1988.

(2)

Subject to the direction of the chief technical officer concerned, a deputy chief technical officer shall have and may exercise all of the powers, duties, and functions of a chief technical officer under this Act, including the power to appoint inspectors, authorised persons, and accredited persons.

(3)

The chief executive (including the Director-General) may not delegate to any person the power to appoint deputy chief technical officers.

Section 102(1): replaced, on 26 November 1997, by section 67 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 102(1A): inserted, on 8 July 2003, by section 12 of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 102(2): amended, on 27 March 2008, by section 4 of the Biosecurity Amendment Act 2008 (2008 No 6).

Section 102(3): inserted, on 15 December 2005, by section 4 of the Biosecurity Amendment Act 2005 (2005 No 91).

103 Inspectors, authorised persons, and accredited persons

(1)

A chief technical officer appointed as such by the Director-General may from time to time—

(a)

appoint inspectors and authorised persons for the purposes of administering and enforcing the provisions of this Act:

(b)

appoint authorised persons for the purposes of a national pest management plan or a national pathway management plan.

(2)

A chief technical officer appointed as such by the chief executive of a department may from time to time—

(a)

appoint inspectors and authorised persons for the purposes of administering and enforcing all or any of the provisions of this Act except the provisions of Part 3:

(b)

appoint authorised persons for the purposes of a national pest management plan or a national pathway management plan.

(3)

The principal officer of a region may from time to time appoint authorised persons for the purpose of exercising functions, powers, and duties under this Act in relation to any regional pest management plan or a regional pathway management plan in force in the region or any small-scale management programme declared by the council for that region, or to ascertain the presence or distribution of any pest, pest agent, or unwanted organism.

(4)

A person shall not be appointed as an inspector or an authorised person unless the person has appropriate experience, technical competence, and qualifications relevant to the area of responsibilities proposed to be allocated to that person.

(5)

Inspectors or authorised persons appointed under this section may, but need not, be persons who are employed under the State Sector Act 1988 or by a regional council.

(6)

Inspectors and authorised persons may be authorised on their appointment to exercise all of the powers conferred on inspectors and authorised persons under this Act, or the regulations, or only such of those powers as are specified in their instruments of appointment or subsequently by written notice.

(7)

A chief technical officer or the principal officer of a region may accredit persons for the purposes of performing particular functions—

(a)

that are consequential upon the exercise of powers under this Act by an inspector or authorised person; or

(b)

that may be conferred on or may be performed by accredited persons under regulations made under this Act;—

but may not accredit a person for a particular function unless satisfied that the person has appropriate experience, technical competence, and qualifications relevant to the function.

(8)

Every inspector, authorised person, and accredited person shall in the performance of functions, powers, and duties for the purposes of this Act use his or her best endeavours to comply with and give effect to any relevant performance or technical standards.

Compare: 1967 No 50 s 5; 1967 No 147 s 100; 1968 No 13 s 5; 1969 No 53 ss 36, 39A; 1970 No 151 s 17; 1978 No 15 s 41; 1982 No 42 s 9

Section 103(1): replaced, on 26 November 1997, by section 68(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 103(1)(b): amended, on 18 September 2012, by section 40(1) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 103(2): replaced, on 26 November 1997, by section 68(1) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 103(2)(b): amended, on 18 September 2012, by section 40(2) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 103(3): amended, on 18 September 2012, by section 40(3) of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 103(3): amended, on 26 November 1997, by section 68(2)(a) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 103(4): amended, on 8 July 2003, by section 13(1)(a) of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 103(5): amended, on 8 July 2003, by section 13(1)(b) of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 103(6): amended, on 26 November 1997, by section 68(2)(b) of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 103(7): replaced, on 8 July 2003, by section 13(2) of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 103(7): amended, on 18 September 2012, by section 40(4) of the Biosecurity Law Reform Act 2012 (2012 No 73).

104 Authorised persons to comply with instructions

(1)

All inspectors and authorised persons appointed by a chief technical officer must comply with any lawful direction or instruction given by a relevant chief technical officer in relation to the exercise and performance of the powers, duties, and functions conferred or imposed on inspectors or authorised persons by this Act.

(2)

All authorised persons appointed by a principal officer must comply with any lawful direction or instruction given by that officer in relation to the exercise and performance of the powers, duties, and functions conferred or imposed on authorised persons by this Act.

(3)

For the purposes of this section, relevant chief technical officer means any 1 or more of the chief technical officers appointed by the chief executive who appointed the chief technical officer responsible for the appointment of the inspector or authorised person.

Section 104: replaced, on 26 November 1997, by section 69 of the Biosecurity Amendment Act 1997 (1997 No 89).

Section 104(1): amended, on 8 July 2003, by section 14(a) of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 104(1): amended, on 8 July 2003, by section 14(b) of the Biosecurity Amendment Act 2003 (2003 No 38).

Section 104(3): amended, on 8 July 2003, by section 14(c) of the Biosecurity Amendment Act 2003 (2003 No 38).

105 Delegation to authorised persons

(1)

A principal officer or chief technical officer may delegate to any person any of his or her functions, powers, or duties under this Act, except for—

(a)

this power of delegation; and

(b)

the power to appoint inspectors and authorised persons.

(2)

Any delegation under this section may be made on such terms and conditions as the person delegating the power thinks fit, and may be revoked at any time by notice in writing to the delegate.

(3)

Except as provided in the instrument of delegation, every person to whom a function, power, or duty has been delegated under this section may, without confirmation by the person delegating the function, power, or duty, exercise or perform the function, power, or duty in the same manner and with the same effect as the person so delegating could himself or herself have exercised or performed it.

(4)

Every person authorised to act under a delegation under this section is presumed to be acting in accordance with its terms in the absence of proof to the contrary.

(5)

A delegation under this section does not affect the performance or exercise of any function, power, or duty by the person on whom the function, power, or duty is conferred or imposed.

Section 105(1): replaced, on 15 December 2005, by section 5 of the Biosecurity Amendment Act 2005 (2005 No 91).

105A Call in of powers or functions

(1)

This section applies to the powers or functions in sections 19(2)(a), 26, 32, 33, 43, 122, 125, and 130 that an inspector or authorised person may exercise or carry out.

(2)

A chief technical officer may decide that the power must be exercised or the function carried out by the chief technical officer instead of by the inspector or authorised person.

(3)

The chief technical officer may not make a decision under subsection (2) if—

(a)

the inspector or authorised person has already exercised the power or carried out the function; and

(b)

the person affected by the exercise or carrying out knows that the inspector or authorised person has done so.

(4)

The chief technical officer may make a decision under subsection (2) if the officer considers that 1 or more of the following applies to the exercise of the power or the carrying out of the function:

(a)

it is likely to have effects on New Zealand’s culture, economy, industry, environment, public health, animal health, or international trade:

(b)

it is likely to involve treatment or post-clearance management that—

(i)

will require or is likely to require significant resources; or

(ii)

will have or is likely to have significant budgetary implications; or

(iii)

will involve or is likely to involve technology, processes, or methods that are new:

(c)

it is likely to involve issues of a systemic nature:

(d)

it is likely to involve issues that increase risk to, complexity for, or the liability of the Ministry:

(e)

it is likely to involve issues that have the potential to seriously affect the Ministry’s reputation:

(f)

it must be done urgently in circumstances in which there is insufficient time to follow normal decision-making procedure.

(5)

A chief technical officer who makes a decision under subsection (2) must give a written notice to the inspector or authorised person—

(a)

stating that the chief technical officer will exercise the power or carry out the function; and

(b)

stating the ground in subsection (4) that applies.