Hazardous Substances and New Organisms Act 1996

Reprint as at 8 November 2016

Coat of Arms of New Zealand

Hazardous Substances and New Organisms Act 1996

Public Act
 
1996 No 30
Date of assent
 
10 June 1996
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 the Environment.

Contents

Title
1Short Title and commencement
2Interpretation
2AMeaning of term new organism
3Act to bind the Crown
3ATransitional and savings provisions relating to amendments to Act
4Purpose of Act
5Principles relevant to purpose of Act
6Matters relevant to purpose of Act
7Precautionary approach
8Treaty of Waitangi
9Methodology to be used
10Powers, functions, and duties of Minister
11Powers, functions, and duties of Authority
12Powers, functions, and duties of enforcement officers
13General duty
14Establishment of Authority [Repealed]
15Membership of Authority [Repealed]
16Eligibility for appointment as member of Authority [Repealed]
17Restriction on Ministerial direction
18EPA may appoint committees
18ACommittee may appoint and delegate functions to subcommittee
18BComposition of subcommittee
18CQualification for appointment to committee or subcommittee
19Delegation by Authority
20Obligation to prepare and maintain register
20ARegister of exposure limits for substances with toxic or ecotoxic properties
21Charges
22Payments in advance
23Fees for local authorities
24Power to request information
[Repealed]
24AEstablishment of Nga Kaihautu Tikanga Taiao [Repealed]
24BFunction of Nga Kaihautu Tikanga Taiao [Repealed]
24CAppointment and remuneration of members and chair [Repealed]
24DReview of terms of reference [Repealed]
25AAThis Part subject to Part 5A [Repealed]
25Restriction of import, manufacture, development, field testing, or release
25AProhibition of import, manufacture, or use of persistent organic pollutants
25BProhibition on storage of persistent organic pollutants
25CContinuation of certain exemptions under Toxic Substances Regulations 1983
25DUse of persistent organic pollutants imported or manufactured before commencement of Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003
26Determination of new organism or hazardous substance
27Types of approval
27AApprovals at any taxonomic classification
28Application for approval to import or manufacture hazardous substances
28ARapid assessment for importation or manufacture of hazardous substances
29Determination of applications
29AApprovals for innovative agricultural compounds and medicines [Repealed]
29BApplications relating to persistent organic pollutants
30Importing hazardous substances in containment
31Application for hazardous substance containment approval
32Decision on application
33Exemptions from Act for small-scale research on hazardous substances
34Application for approval to import or release
34AApplications for conditional release and for release in respect of same new organism
35Rapid assessment of risk for importation of new organisms
36Minimum standards
37Additional matters to be considered
38Determination of applications to import or release
38AApplication for approval to import or release new organism with controls
38BApplication under section 34 may be treated as application under section 38A
38BARapid assessment of risk for importation or release of new organisms with controls
38CDetermination of applications to import or release new organisms with controls
38DControls
38EDuration of conditional release approval
38FConsequences of expiry of conditional release approval
38GReview of controls on conditional release approval
38HRestriction on release of new organism subject to conditional release approval
38IAssessment of applications for release of qualifying organisms
38JProcedure for assessing and approving application by responsible chief executive
38KControls
38LReview of controls for qualifying organisms
39Importation or development of new organisms in containment
40Application for containment approval for new organisms
41Assessment of adverse effects of developing genetically modified organisms
42Rapid assessment of adverse effects for development of genetically modified organisms
42ARapid assessment of projects for low-risk genetic modification
42BRapid assessment of adverse effects for importation of genetically modified organisms into containment
42CRapid assessment of adverse effects for development in containment, etc, of certain new organisms
43Additional matters to be considered when application made for developing new organisms in containment
44Additional matters to be considered on applications for importing and field testing of organisms
44AAdditional matters to be considered for certain developments and field tests
45Determination of application
45AControls required for certain developments and for all field tests
45BAnimals in circus or zoological garden deemed approved under section 255
46Meaning of emergency
47Application for approval to use a hazardous substance or new organism in an emergency
48Determination of applications
49Exemptions from provisions of Act in emergencies
49AInterpretation
49BDeclaration of special emergency
49CApplication of sections 49D to 49K
49DApplication for approval to use agricultural compound or medicine in special emergency
49EContents of application
49FDetermination of applications
49GControls attaching to approval of application
49HNotification or publication of approval of application
49IEffect of approval of release
49JDuration of approval
49KConsequences of expiry of approval
49LRapid assessment and approval of other hazardous substances in special emergencies
50Prohibited organisms
51Transhipment of substances and organisms
52Applicant may be required to provide further information
53Applications required to be publicly notified
53AMethod of public notification [Repealed]
54Submission on application
55Information held on behalf of applicant
56Consideration of information withheld under Official Information Act 1982
57Authority to withhold information
58Further information
59Time limits and waivers
60Obligation to hold hearing
61Provisions relating to hearings
62Grounds for reassessment of a substance or organism
63Reassessment
63AModified reassessment procedure for amendments to approvals of hazardous substances
63BProposal for group standard may be consulted on in same way as reassessment
64Suspension of approvals during reassessment
65No compensation following reassessment
66Requirement for disposing of substances
66ADisposal of persistent organic pollutants
67Authority to direct disposal of new organisms
67AMinor or technical amendments to approvals
68Minister’s power to call in applications with significant effects
69Notification of Minister’s direction
70Minister may appoint persons
71Conduct of inquiry by Authority
72Authority to report to Minister
73Minister to decide application and notify decision
[Repealed]
73AInterpretation [Repealed]
73BApplication [Repealed]
73CAuthority must not consider or approve certain applications during restricted period [Repealed]
73DAdditional information required for certain applications [Repealed]
73EAdditional matters Authority must consider for certain applications [Repealed]
73FNo compensation [Repealed]
73GExpiry [Repealed]
74Establishment of hazard classification system
75Regulations prescribing hazard classification control
76Requirements for containers, identification, disposal, emergencies, tracking, and fireworks
76AAuthority may prescribe other matters relating to hazardous substances
76BFurther provisions relating to EPA notices
76CProcedure for issuing EPA notices
76DApplication of Legislation Act 2012 to EPA notices
77Controls on hazardous substances
77AAuthority’s power to impose controls and vary specified controls
77BExposure limits for substances with toxic or ecotoxic properties
78Codes of practice
79Codes may be approved by Authority
80Availability of codes
81Proof of code
82Issue of test certificates by test certifiers
82ARegister of test certificates
82BDelegation by approved person
82CRevocation of test certificates
83Applications for approval as test certifier
84Processing applications for approval as test certifier
85Register of test certifiers
86Complaints to Authority
87Establishment of transferable permit scheme
88Authority to recommend establishment
89Transferable permit scheme and variation of controls
90Transfer of permits
91Contents of transferable permits
92Modification of permits
93Registration of scheme
94Transferable permit not to be mortgaged
95Prohibition on import or manufacture until transferable permit obtained
95APermissions
95BLicences
96Report on environmental user charges
96APurpose of Part
96BGroup standards
96CWhen group standards may be issued or amended
96DRevocation of group standards
96EEffect of group standards
96FHazardous substances in group standards if Parts 11 to 15 apply
97Enforcement of Act
97AEnforcement of Act in respect of new organisms
97AABorder information supplied using JBMS must be supplied in approved form and manner
97ABDuty to use JBMS to supply border information
97BEnforcement of Act in respect of hazardous substances in place of work
98Co-ordination of inspection
98AChief executives of Ministry and Authority to have functions, powers, duties, and protections of enforcement officers
99Supervision of inspection
100Appointment of enforcement officers
101Duty of territorial authorities
102Building Act 2004
103Powers of entry for inspection
104Scope of compliance order
105Compliance with compliance order
106Form and content of compliance order
107Service of compliance order
108Cancellation of compliance order
109Offences
109ATime for filing charging document
109BExtension of time for filing charging document
110Infringement offences
111Commission of infringement offence
112Infringement notices
113Entitlement to infringement fees
114Penalties
115Liability of employers and principals
116Liability of directors and officers of bodies corporate
117Strict liability and defences
118Fines to be paid to territorial authority instituting prosecution
119Search warrants
120Dealing with property seized by enforcement officers [Repealed]
121Application of Customs and Excise Act 1996 to hazardous substance imported in breach of this Act
122Power to require hazardous substance to leave New Zealand
123Declaration that organism not genetically modified
124Responsibilities of carrier and person in charge of any craft
124AInterpretation
124BPecuniary penalty order
124CAmount of pecuniary penalty
124DOther orders instead of or in addition to pecuniary penalty order
124EStandard of proof and procedural matters
124FRelationship between concurrent proceedings for pecuniary penalty and criminal proceedings
124GCivil liability
124HDefences to liability under section 124G
124IBreaches, acts, and omissions by directors, employees, or agents
125Appeals
126Appeal on question of law
127Notice of appeal
128Right to appear and be heard on appeal
129Parties to appeal before High Court
130Orders of High Court
131Additional appeals on points of law
132Extension of time
133Date of hearing
134Appeals to Court of Appeal
135Interpretation
136Declaration of emergency
137Emergency powers
138Compensation for property requisitioned or destroyed
139Protection of enforcement officers and persons
140Regulations
140APersistent organic pollutants
140BSchedule 1AA may be amended or substituted
141Procedure for making Orders in Council
141AIncorporation of material by reference
141BAmendment to, or replacement of, material incorporated by reference
141CProof of material incorporated by reference
141DMaterial incorporated by reference that ceases to have effect
141ENotice must be provided to committee responsible for examining regulations
141FRequirement to consult on proposal to amend or replace material incorporated by reference
141GAccess to material incorporated by reference in regulations
141GAAccess to material incorporated by reference in EPA notices
141HAccess to material incorporated by reference in group standard, notice of transfer, or code of practice
141IApplication of Legislation Act 2012
142Relationship to other Acts
142AExemptions from approval requirements [Expired]
143Notification of hazardous substances injuries
144Reporting of incidents
145Ombudsmen Act 1975 amended [Repealed]
146Authority to be Crown entity [Repealed]
147Additional matters to be included in statement of intent
148Additional reporting requirements
149Amendments to other Acts
150Repeals and revocations
[Expired]
151Interpretation [Expired]
152Expiry of transitional provisions [Expired]
152AExpiry of transitional provisions in relation to persistent organic pollutants [Expired]
153Exemption in case of licence application [Expired]
154Exemptions from regulations and provisions of Parts 11 to 16 [Expired]
155Applications made under transitional provisions [Expired]
156Offences against Parts 11 to 16 [Expired]
157Defences [Expired]
158Suspension and cancellation of licences [Expired]
159Continuation of Pesticides Board and Toxic Substances Board [Expired]
160Regulations relating to transitional provisions [Expired]
160ANotices of transfer relating to transitional matters [Expired]
160BControls may be imposed for purposes of notice of transfer [Expired]
161Regulations saved [Expired]
162Reassessment of substances and organisms [Expired]
[Expired]
163Interpretation [Expired]
164Application of this Part [Expired]
164AProtection of information [Expired]
165Sale, importation, and use of pesticides [Expired]
166Labelling [Expired]
167Advertisements [Expired]
168Review and revocation of registration [Expired]
169Transfer of proprietors’ rights [Expired]
170Sale of pesticides in bulk [Expired]
171Warranties [Expired]
172Pesticide register [Expired]
173Regulations relating to all pesticides [Expired]
174Regulations relating to controlled pesticides [Expired]
175Interpretation [Expired]
176Restrictions on use of controlled pesticides [Expired]
177Qualifications for approved operator licence [Expired]
178Dealing with applications [Expired]
179Effect of licences [Expired]
180Duration of licences [Expired]
181Variation of terms and conditions of licences [Expired]
182Register of approved operators [Expired]
[Expired]
183Interpretation [Expired]
184Application of this Part [Expired]
184AProtection of information [Expired]
185Restrictions on sales of deadly poisons and dangerous poisons [Expired]
186Sale and packing of poisons [Expired]
187Further restrictions on sale of poisons [Expired]
188Containers [Expired]
189Custody of poisons and harmful substances [Expired]
190Storage of poisons and harmful substances [Expired]
191Packing of poisons and harmful substances [Expired]
192Restriction on possession and use of deadly poisons and dangerous poisons [Expired]
193Control of advertisements [Expired]
194Disposal of surplus poisons to other user or licensee [Expired]
195Exemptions for pharmacists [Expired]
196Exemptions for veterinarians [Expired]
197Exemptions for certain other persons [Expired]
198Exemptions for agents and employees [Expired]
199Applications for licences [Expired]
200Dealing with applications [Expired]
201Effect of licences [Expired]
202Duration of licences [Expired]
203Records of sales [Expired]
204Register [Expired]
205Interpretation [Expired]
206Packing of imported toxic substances [Expired]
207Notice to be given of imported toxic substances [Expired]
208Application of toxic substances regulations [Expired]
[Expired]
209Interpretation [Expired]
210Application of this Part [Expired]
211Restrictions on storage and use of dangerous goods [Expired]
212Restrictions on containers [Expired]
213Containers of dangerous goods to be specially marked [Expired]
214Pumps for reselling dangerous goods [Expired]
215Restrictions on use of gases in balloons [Expired]
216Phosphorus matches [Expired]
217Licensing of premises for storage of dangerous goods [Expired]
218Provisional licences [Expired]
219General provisions as to licences [Expired]
220Renewal of licences [Expired]
221Continuing application of dangerous goods regulations [Expired]
[Expired]
222Interpretation [Expired]
223Classification of explosives [Expired]
224Application of this Part [Expired]
225Importation of explosives [Expired]
226Permit for importation of fireworks [Expired]
227Licence to manufacture explosives [Expired]
228Factory not to be altered without consent of Authority [Expired]
229Fireworks not to be sold to persons under 14 years of age [Expired]
230Application of following sections [Expired]
231Explosives not to be sold without licence [Expired]
232Restriction on sale of fireworks [Expired]
233Sale of explosives [Expired]
234Storage of explosives [Expired]
235Certain explosives not to be carried without consent of Authority [Expired]
236Licence required to carry certain explosives [Expired]
237Carriage of explosives in vehicles or vessels carrying passengers [Expired]
238Firework displays [Expired]
239Private storage [Expired]
240Conditions of licence [Expired]
241Public magazines [Expired]
242Private magazines [Expired]
243Private magazine not to be altered without consent [Expired]
244Danger buildings [Expired]
245Notices on danger buildings [Expired]
246Repairs or alterations to danger buildings [Expired]
247Protective clothing, etc [Expired]
248Employment of young persons in danger buildings [Expired]
249Packing and marking of explosives [Expired]
250Handling of explosives [Expired]
251Abandonment or disposal of explosives [Expired]
252Damaged, defective, or unsafe explosives [Expired]
253Continuation of regulations [Expired]
[Expired]
[Expired]
254Animals [Expired]
255Zoological gardens [Expired]
256Hamsters [Expired]
257Approvals for genetically modified organisms [Expired]
[Expired]
258Import permits [Expired]
259Micro-organisms lawfully in use [Expired]
[Repealed]
Reprint notes

An Act to restate and reform the law relating to the management of hazardous substances and new organisms

 
1 Short Title and commencement

(1)

This Act may be cited as the Hazardous Substances and New Organisms Act 1996.

(2)

This Act shall come into force on a date to be fixed by the Governor-General by Order in Council; and 1 or more Orders in Council may be made fixing different dates for different provisions and for different purposes.

Section 1(2): Hazardous Substances and New Organisms Act 1996 brought into force for all purposes, on 2 July 2001, by clause 2 of the Hazardous Substances and New Organisms Act Commencement Order (No 2) 2001 (SR 2001/171).

Part 1 Preliminary

2 Interpretation

(1)

In this Act, unless the context otherwise requires,—

advertisement means any publication to the community or to any section of the community of any words, whether written or printed, spoken, or in any electronic form, or of any pictorial representation or design or device, used to promote the sale of any hazardous substance; and to advertise has a corresponding meaning

aircraft has the same meaning as in section 2 of the Civil Aviation Act 1990

amenity values means those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes

approved form means a form approved by the Authority under section 11(1)(fa)

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

bioaccumulation means accumulation within the tissues of living organisms

building has the same meaning as in section 7 of the Building Act 2004

by-product means an incidental or secondary product made in the manufacture of another product

carrier, in relation to a craft, means the owner or charterer of the craft; and, where the owner or charterer is not in New Zealand, includes the agent in New Zealand of the owner or charterer or, if there is no such agent in New Zealand, the person in charge

code of practice means any document issued or approved in accordance with section 78

compound means any chemical combination of chemical elements

conditional release approval means an approval under section 38BA or 38C

conditionally released new organism means a new organism that is subject to a conditional release approval

container means any vessel or structure, whether moveable or fixed, in which hazardous substances may be cased, covered, enclosed, contained, or packed; and—

(a)

includes,—

(i)

any vessel (other than part of a vehicle’s fuel system) which forms an integral part of any vehicle; and

(ii)

any stationary container; and

(iii)

any package; and

(b)

does not include any landfill

containment means restricting an organism or substance to a secure location or facility to prevent escape; and includes, in respect of genetically modified organisms, field testing and large-scale fermentation

containment facility means,—

(a)

in relation to new organisms (other than genetically modified organisms), a facility registered as a containment facility under the Biosecurity Act 1993:

(b)

in relation to genetically modified organisms, a facility which complies with the controls imposed by an approval granted under any of sections 42, 42A, 42B, or 45

containment structure means a containment facility that is a vehicle, room, building, or other structure, set aside and equipped for the development of genetically modified organisms

controller means the person for the time being in charge of a location or facility

controls means any obligations or restrictions imposed on any hazardous substance or new organism, or on any person in relation to any hazardous substance or new organism, by this or any other Act or any regulations, rules, codes, or other documents made in accordance with the provisions of this or any other Act for the purposes of controlling the adverse effects of that substance or organism on people or the environment

craft means any form of aircraft, ship, or other vehicle or vessel capable of being used to transport any substance to or from New Zealand from or to any country outside New Zealand

Crown entity

(a)

has the same meaning as in section 7(1) of the Crown Entities Act 2004; and

(b)

includes an organisation named or described in Schedule 4, or a company named in Schedule 4A, of the Public Finance Act 1989

Customs officer means any person holding office as a Customs officer appointed under the Customs and Excise Act 1996

department has the same meaning as in section 2 of the State Sector Act 1988

develop,—

(a)

in relation to organisms other than incidentally imported new organisms,—

(i)

means—

(A)

genetic modification of an organism:

(B)

regeneration of a new organism from biological material of the organism that cannot, without human intervention, be used to reproduce the organism:

(C)

fermentation of a micro-organism that is a new organism; but

(ii)

does not include field testing; and

(b)

in relation to incidentally imported new organisms,—

(i)

means—

(A)

the activities referred to in paragraph (a)(i); and

(B)

the deliberate isolation, aggregation, multiplication, or other use of the organism; but

(ii)

does not include field testing

disposal means,—

(a)

in relation to a hazardous substance,—

(i)

treating the substance in such a way that it is no longer a hazardous substance; or

(ii)

discharging the substance into the environment as waste; or

(iii)

exporting the substance as waste from New Zealand:

(b)

in relation to a new organism,—

(i)

rendering the organism biologically inactive in such a manner as to prevent the occurrence of any future biological activity; or

(ii)

exporting the organism from New Zealand

distribution system has the same meaning as in section 2 of the Gas Act 1992

ecotoxic means capable of causing ill health, injury, or death to any living organism

effect includes—

(a)

any potential or probable effect; and

(b)

any positive or adverse effect; and

(c)

any temporary or permanent effect; and

(d)

any past, present, or future effects; and

(e)

any acute or chronic effect; and

(f)

any cumulative effect which arises over time or in combination with other effects

enforcement officer means an enforcement officer appointed under section 98 or section 99(3)

environment includes—

(a)

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

(b)

all natural and physical resources; and

(c)

amenity values; and

(d)

the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) or which are affected by those matters

environmental medium,—

(a)

in relation to class 6 substances, means—

(i)

air, water, and soil; or

(ii)

a surface that a hazardous substance may be deposited onto:

(b)

in relation to class 9 substances, means water, soil, or sediment where these are in the natural environment, or a surface that a hazardous substance may be deposited onto

environmental user charge means an amount of money payable per unit mass of a hazardous substance

environmentally sound disposal, in relation to a substance that is a persistent organic pollutant, means disposal in accordance with directions given by the Authority by notice in the Gazette, being directions that are not inconsistent with Article 6 of the Stockholm Convention

EPA notice means a notice issued in the Gazette by the Authority under Part 6 or under any other provision of this Act that applies section 76C

explosive means capable of sudden expansion owing to a release of internal energy; and includes the capability to generate—

(a)

deflagration; or

(b)

pyrotechnic effects,—

and explosion has a corresponding meaning

exportation has the same meaning as in section 2(1) of the Customs and Excise Act 1996; and to export has a corresponding meaning

exposure limit means an environmental exposure limit, a tolerable exposure limit, or a workplace exposure standard (as these terms are defined in section 77B(6))

field test means, in relation to an organism, the carrying on of trials on the effects of the organism under conditions similar to those of the environment into which the organism is likely to be released, but from which the organism, or any heritable material arising from it, could be retrieved or destroyed at the end of the trials

firework means an object containing small quantities of hazardous substances with explosive properties enclosed in a case of paper or similar material of such a strength, construction, and character that the ignition or explosion of one such firework will not cause the explosion en masse of similar fireworks kept or carried with it, and whose sole or principal effect is not percussive or vertical or horizontal flight

gas appliance has the same meaning as in section 2 of the Gas Act 1992

gas installation has the same meaning as in section 2 of the Gas Act 1992

genetic element, in relation to a new organism, means—

(a)

heritable material; and

(b)

any genes, nucleic acids, or other molecules from the organism that can, without human intervention, replicate in a biological system and transfer a character or trait to another organism or to subsequent generations of the organism

genetically modified organism means, unless expressly provided otherwise by regulations, any organism in which any of the genes or other genetic material—

(a)

have been modified by in vitro techniques; or

(b)

are inherited or otherwise derived, through any number of replications, from any genes or other genetic material which has been modified by in vitro techniques

hazard classification means a combination of the hazardous property of a substance and the level or type of hazard related to that property prescribed in accordance with section 74

hazardous substance means, unless expressly provided otherwise by regulations, any substance—

(a)

with 1 or more of the following intrinsic properties:

(i)

explosiveness:

(ii)

flammability:

(iii)

a capacity to oxidise:

(iv)

corrosiveness:

(v)

toxicity (including chronic toxicity):

(vi)

ecotoxicity, with or without bioaccumulation; or

(b)

which on contact with air or water (other than air or water where the temperature or pressure has been artificially increased or decreased) generates a substance with any 1 or more of the properties specified in paragraph (a)

heritable material, in relation to a new organism, means viable biological material, including gametes and spores, arising from the organism that can, without human intervention, regenerate the organism or reproduce a new generation of the same species of the organism

host organism means an organism that is the subject of a genetic modification procedure

human cells

(a)

means human cells, human cell lines, or human tissues that are being grown or maintained outside the human body; and

(b)

includes human reproductive cells or human embryonic cells that are being grown or maintained outside the human body

identification means the provision of any information about a substance or organism which—

(a)

clearly identifies the chemical or biological nature of the substance or organism:

(b)

specifies the nature and degree or type of hazard intrinsic to the substance or organism:

(c)

describes precautions to be taken by persons managing hazardous substances to avoid injury to people or environmental damage:

(d)

directly or indirectly aids in managing any hazardous effect of a hazardous substance:

(e)

identifies and specifies the means of contacting any person knowledgeable in the management of the substance

import, in relation to new organisms, has the same meaning as in section 2(1) of the Biosecurity Act 1993

importation, in relation to hazardous substances, has the same meaning as in section 2(1) of the Customs and Excise Act 1996; and to import, in relation to those substances, has a corresponding meaning

incidentally imported new organism means a new organism that is imported in or on goods, but is not—

(a)

an essential or constituent part of those goods:

(b)

imported in or on the goods with the intention of concealing the presence of the new organism:

(c)

a genetically modified organism

innovative medicine application has the meaning given to it in section 23A of the Medicines Act 1981

innovative TNP application

(a)

has the meaning given to it in section 72(1) of the Agricultural Compounds and Veterinary Medicines Act 1997; and

(b)

includes an innovative agricultural compound application (as defined in section 72 of that Act as in force immediately before the commencement of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016)

inseparable organism means any organism which is unable to be separated from any other organism

intrinsic values, in relation to ecosystems, means those aspects of ecosystems and their constituent parts which have value in their own right, including—

(a)

their biological and genetic diversity; and

(b)

the essential characteristics that determine an ecosystem’s integrity, form, functioning, and resilience

laboratory means a vehicle, room, building, or any other structure set aside and equipped for scientific experiments or research, for teaching science, or for the development of chemical or medicinal products

landfill means any premises used for the lawful deposit or disposal of waste materials into or onto land

life cycle, in relation to a substance, means the time for which the substance is in existence from (and including) its manufacture or importation to its disposal

light rail vehicle has the same meaning as in section 4(1) of the Railways Act 2005

local authority means a territorial authority or a regional council

manufacture, in relation to a hazardous substance, includes the mining or extraction of any hazardous substance

member means a member of the Authority

Minister means the Minister for the Environment

motor vehicle has the same meaning as in section 2(1) of the Land Transport Act 1998

natural and physical resources has the same meaning as in section 2(1) of the Resource Management Act 1991

new organism has the meaning given to it by section 2A

organism

(a)

does not include a human being:

(ab)

includes a human cell:

(b)

includes a micro-organism:

(c)

includes a genetic structure, other than a human cell, 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 to be an organism for the purposes of the Biosecurity Act 1993:

(e)

includes a reproductive cell or developmental stage of an organism

persistent organic pollutant

(a)

means a substance listed in Schedule 2A; and

(b)

includes a substance containing 1 or more of those substances; and

(ba)

includes a manufactured article containing 1 or more of those substances; but

(c)

does not include a substance occurring in quantities as unintentional trace contaminants in products and articles

person includes the Crown

place of work has the same meaning as in section 2(1) and (3) of the Health and Safety in Employment Act 1992

port of entry has the same meaning as in the Customs Act 1966

premises includes a dwelling, building, aircraft, ship, carriage, vehicle, box, receptacle, and place

prescribed means prescribed by regulations made or an EPA notice issued under this Act

public health has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000

public notice means—

(a)

a notice published on an Internet site maintained by or on behalf of the Authority; or

(b)

a notice published in 1 or more daily newspapers circulating in the main metropolitan areas, together with any other public notice (if any) that the Authority or Minister (as applicable) thinks fit

qualifying medicine means a medicine or new medicine (as defined in section 3 of the Medicines Act 1981) that—

(a)

is or contains a new organism; and

(b)

meets the criteria set out in section 38I(3)

qualifying organism means a new organism that is or is contained in a qualifying medicine or qualifying veterinary medicine

qualifying veterinary medicine means a veterinary medicine (as defined in section 2(1) of the Agricultural Compounds and Veterinary Medicines Act 1997) that—

(a)

is or contains a new organism; and

(b)

meets the criteria set out in section 38I(3)

rail vehicle has the same meaning as in section 4(1) of the Railways Act 2005

railway line has the same meaning as in section 4(1) of the Railways Act 2005

regional council means a regional council within the meaning of the Local Government Act 2002

regulations means regulations in force under this Act

release, in relation to new organisms, means to allow the organism to move within New Zealand free of any restrictions other than those imposed in accordance with the Biosecurity Act 1993 or the Conservation Act 1987

research and development, in relation to a hazardous substance, means systematic investigation or experimentation activities that involve the hazardous substance

responsible chief executive means the chief executive of the Authority and the chief executive of the department for the time being responsible for the administration of the Medicines Act 1981 or the Agricultural Compounds and Veterinary Medicines Act 1997, as the case may be

risk species means any species, subspecies, infrasubspecies, variety, strain, or cultivar prescribed as a risk species under section 140

road has the same meaning as in section 2(1) of the Land Transport Act 1998

serious environmental damage means any environmental damage prescribed under section 140

serious harm has the same meaning as in Schedule 1 of the Health and Safety in Employment Act 1992

ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

stationary container means any building or part of a building, or vessel supported by or incorporated in any building, which is expressly designed to contain any hazardous substance

Stockholm Convention

(a)

means the Convention on Persistent Organic Pollutants done at Stockholm on 23 May 2001 and the Annexes to the Convention, a copy of the English text of which is set out in Schedule 1AA; and

(b)

includes any amendments to, or substitutions of, the Convention or the Annexes that are, or will become, binding on New Zealand

substance means—

(a)

any element, defined mixture of elements, compounds, or defined mixture of compounds, either naturally occurring or produced synthetically, or any mixtures thereof:

(b)

any isotope, allotrope, isomer, congener, radical, or ion of an element or compound which has been declared by the Authority, by notice in the Gazette, to be a different substance from that element or compound:

(c)

any mixtures or combinations of any of the above:

(d)

any manufactured article containing, incorporating, or including any hazardous substance with explosive properties

taxonomic classification, in relation to an organism, means the genus, species, subspecies, infrasubspecies, variety, strain, cultivar, or other appropriate classification that the organism belongs to

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

test certificate means a certificate issued by a test certifier in accordance with section 82

toxic means capable of causing ill health in, or injury to, human beings

tracking system means a system established under regulations made under section 76

transferable permit means any permit to import or manufacture a hazardous substance issued in accordance with a transferable permit scheme

transferable permit scheme means any scheme established in accordance with section 87

transhipment means the importation into New Zealand of a hazardous substance or new organism solely for the purpose of export within 20 working days to another destination outside New Zealand

Treaty of Waitangi (Te Tiriti o Waitangi) has the same meaning as the word Treaty as defined in section 2 of the Treaty of Waitangi Act 1975

weapons system means any ammunition, explosive, or propellant; and includes any platform designed to carry any combination thereof

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)

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

WorkSafe means WorkSafe New Zealand established by section 5 of the WorkSafe New Zealand Act 2013.

(2)

For the purposes of paragraph (a) of the definition of the term substance in section 2(1), the definition of any mixture of elements or mixture of compounds may include a range of percentages of the elements or compounds making up the substance.

Section 2(1) aerodrome: repealed, on 20 April 2010, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 2(1) approved form: inserted, on 31 December 2000, by section 3(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 2(1) approved form: amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 2(1) Authority or EPA: substituted, on 1 July 2011, by section 4 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 2(1) building: amended, on 31 March 2005, pursuant to section 415(1) of the Building Act 2004 (2004 No 72).

Section 2(1) conditional release approval: substituted, on 20 April 2010, by section 4(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 2(1) conditionally released new organism: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) containment facility paragraph (b): amended, on 30 October 2003, by section 4(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) containment structure: inserted, on 28 May 2002, by section 5 of the Hazardous Substances and New Organisms (Genetically Modified Organisms) Amendment Act 2002 (2002 No 13).

Section 2(1) Crown entity: inserted, on 25 January 2005, by section 37(1) of the Public Finance Amendment Act 2004 (2004 No 113).

Section 2(1) Crown entity paragraph (b): amended, on 18 July 2013, by section 57 of the Public Finance Amendment Act 2013 (2013 No 50).

Section 2(1) Customs officer: amended, on 1 October 1996, pursuant to section 294(2) of the Customs and Excise Act 1996 (1996 No 27).

Section 2(1) department: inserted, on 9 April 2008, by section 4(2) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 2(1) develop: substituted, on 9 April 2008, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 2(1) environmental medium: inserted, on 22 December 2005, by section 3(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 2(1) environmentally sound disposal: inserted, on 23 December 2004, by section 4 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 2(1) EPA notice: inserted, on 5 September 2015, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 2(1) exportation: amended, on 1 October 1996, pursuant to section 290(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 2(1) exposure limit: inserted, on 22 December 2005, by section 3(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 2(1) field test: amended, on 30 October 2003, by section 4(4) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) genetic element: inserted, on 28 May 2002, by section 5 of the Hazardous Substances and New Organisms (Genetically Modified Organisms) Amendment Act 2002 (2002 No 13).

Section 2(1) heritable material: inserted, on 28 May 2002, by section 5 of the Hazardous Substances and New Organisms (Genetically Modified Organisms) Amendment Act 2002 (2002 No 13).

Section 2(1) host organism: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) human cells: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) importation: amended, on 1 October 1996, pursuant to section 290(1) of the Customs and Excise Act 1996 (1996 No 27).

Section 2(1) incidentally imported new organism: inserted, on 9 April 2008, by section 4(2) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 2(1) innovative medicine application: inserted, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 2(1) innovative TNP application: inserted, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 2(1) laboratory: inserted, on 31 December 2000, by section 3(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 2(1) light rail vehicle: inserted, on 20 July 2005, by section 103(3) of the Railways Act 2005 (2005 No 37).

Section 2(1) local authority: inserted, on 22 December 2005, by section 3(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 2(1) motor vehicle: amended, on 1 March 1999, by section 215(1) of the Land Transport Act 1998 (1998 No 110).

Section 2(1) new organism: substituted, on 7 May 1999, by section 2(1) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 2(1) organism paragraph (a): substituted, on 30 October 2003, by section 4(5) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) organism paragraph (ab): inserted, on 30 October 2003, by section 4(5) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) organism paragraph (c): amended, on 30 October 2003, by section 4(6) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) persistent organic pollutant: inserted, on 23 December 2004, by section 4 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 2(1) persistent organic pollutant paragraph (b): amended, on 5 September 2015, by section 4(7) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 2(1) persistent organic pollutant paragraph (ba): inserted, on 5 September 2015, by section 4(8) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 2(1) place of work: amended, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 2(1) place of work: amended, on 5 May 2003, by section 34 of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).

Section 2(1) premises: substituted, on 31 December 2000, by section 3(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 2(1) prescribed: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) prescribed: amended, on 5 September 2015, by section 4(10) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 2(1) public health: substituted, on 1 January 2001, by section 111(1) of the New Zealand Public Health and Disability Act 2000 (2000 No 91).

Section 2(1) public notice: replaced, on 5 September 2015, by section 4(11) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 2(1) qualifying medicine: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) qualifying organism: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) qualifying veterinary medicine: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) rail service vehicle and light rail vehicle: repealed, on 20 July 2005, by section 103(3) of the Railways Act 2005 (2005 No 37).

Section 2(1) rail vehicle: inserted, on 20 July 2005, by section 103(3) of the Railways Act 2005 (2005 No 37).

Section 2(1) railway line: amended, on 20 July 2005, by section 103(3) of the Railways Act 2005 (2005 No 37).

Section 2(1) regional council: inserted, on 22 December 2005, by section 3(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 2(1) research and development: substituted, on 22 December 2005, by section 3(2) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 2(1) responsible chief executive: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2(1) road: amended, on 1 March 1999, by section 215(1) of the Land Transport Act 1998 (1998 No 110).

Section 2(1) Stockholm Convention: inserted, on 23 December 2004, by section 4 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 2(1) taxonomic classification: inserted, on 30 October 2003, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

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

Section 2(1) test certificate: substituted, on 7 May 1999, by section 2(2) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 2(1) working day paragraph (ab): 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) WorkSafe: inserted, on 16 December 2013, by section 22 of the WorkSafe New Zealand Act 2013 (2013 No 94).

2A Meaning of term new organism

(1)

A new organism is—

(a)

an organism belonging to a species that was not present in New Zealand immediately before 29 July 1998:

(b)

an organism belonging to a species, subspecies, infrasubspecies, variety, strain, or cultivar prescribed as a risk species, where that organism was not present in New Zealand at the time of promulgation of the relevant regulation:

(c)

an organism for which a containment approval has been given under this Act:

(ca)

an organism for which a conditional release approval has been given:

(cb)

a qualifying organism approved for release with controls:

(d)

a genetically modified organism:

(e)

an organism that belongs to a species, subspecies, infrasubspecies, variety, strain, or cultivar that has been eradicated from New Zealand.

(2)

An organism is not a new organism if—

(a)

the organism is not a genetically modified organism and—

(i)

an approval is granted under section 35 or 38 to release an organism of the same taxonomic classification; or

(ii)

the organism is a qualifying organism and an approval has been granted under section 38I to release an organism of the same taxonomic classification without controls; or

(iii)

an organism of the same taxonomic classification has been prescribed as not a new organism; or

(b)

the organism is a genetically modified organism and—

(i)

an approval is granted under section 38 to release an organism of the same taxonomic classification with the same genetic modification; or

(ii)

the organism is a qualifying organism and an approval has been granted under section 38I to release an organism of the same taxonomic classification with the same genetic modification without controls; or

(iii)

an organism of the same taxonomic classification with the same genetic modification has been prescribed as not a new organism; or

(c)

the new organism was deemed to be a new organism under section 255 and other organisms of the same taxonomic classification were lawfully present in New Zealand before the commencement of that section and in a place that was not registered as a circus or zoo under the Zoological Gardens Regulations 1977.

(2A)

A new organism does not cease to be a new organism because—

(a)

it is subject to a conditional release approval; or

(b)

it is a qualifying organism approved for release with controls; or

(c)

it is an incidentally imported new organism.

(3)

Despite the provisions of this section, an organism present in New Zealand before 29 July 1998 in contravention of the Animals Act 1967 or the Plants Act 1970 is a new organism.

(4)

Subsection (3) does not apply to the organism known as rabbit haemorrhagic disease virus, or rabbit calicivirus.

Section 2A: inserted, on 7 May 1999, by section 3 of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 2A(1)(ca): inserted, on 30 October 2003, by section 5(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2A(1)(cb): inserted, on 30 October 2003, by section 5(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2A(2): substituted, on 30 October 2003, by section 5(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2A(2)(a)(i): amended, on 20 April 2010, by section 5 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 2A(2A): inserted, on 30 October 2003, by section 5(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 2A(2A)(b): amended, on 9 April 2008, by section 5(1) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 2A(2A)(c): added, on 9 April 2008, by section 5(2) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

3 Act to bind the Crown

(1)

Except as provided in subsections (2) to (8), this Act shall bind the Crown.

(2)

Subject to subsections (3) to (8), this Act shall not apply to any hazardous substance controlled by the Minister of Defence.

(3)

The Chief of Defence Force shall develop codes of practice for hazardous substances controlled by the Minister of Defence and contained in any weapons system.

(4)

The codes of practice developed under subsection (3)—

(a)

must—

(i)

be based on the relevant controls (including any group standard conditions) imposed by the Authority on hazardous substances that have been approved by the Authority (including a deemed approval under section 96E or section 160A) for any purpose under this Act; or

(ii)

meet the relevant requirements prescribed by regulations made in accordance with section 75; and

(b)

may incorporate or adapt any relevant international code of practice.

(5)

The Chief of Defence Force—

(a)

must ensure that methods of controlling all hazardous substances not contained in any weapons system and controlled by the Minister of Defence—

(i)

are based on the relevant controls (including any group standard conditions) imposed by the Authority on hazardous substances that have been approved by the Authority (including a deemed approval under section 96E or section 160A) for any purpose under this Act; or

(ii)

meet the relevant requirements prescribed by regulations made in accordance with section 75; and

(b)

may comply with the relevant requirements in paragraph (a) by following the relevant code of practice approved under section 79.

(6)

The Secretary of Defence shall audit the controls on hazardous substances under the control of the Minister of Defence in accordance with section 24(2)(e) of the Defence Act 1990, and report the results to the Minister and the Minister of Defence.

(7)

Any person may report to the Authority a breach of the requirements required to be met by any regulations in relation to hazardous substances under the control of the Minister of Defence.

(8)

Where an incident occurs which involves any hazardous substance under the control of the Minister of Defence and the incident is not being investigated under the Armed Forces Discipline Act 1971, the Authority may, after consultation with the Minister and the Minister of the Crown who is responsible for the Ministry of Justice, direct an inquiry to be held before a District Court Judge.

(9)

To assist the Judge, the Authority may appoint 2 or more people with skills or knowledge relevant to the subject matter of the inquiry.

(10)

The Judge may hold the inquiry at any times and places the Judge appoints, and shall report on the cause of the incident to the Authority.

(11)

The Judge has all the powers of a Commission of Inquiry under the Commissions of Inquiry Act 1908; and subject to subsections (9) and (10), that Act shall apply accordingly.

Section 3(4): substituted, on 22 December 2005, by section 4 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 3(5): substituted, on 22 December 2005, by section 4 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 3(8): amended, on 1 October 2003, by section 12(2) of the State Sector Amendment Act 2003 (2003 No 41).

3A Transitional and savings provisions relating to amendments to Act

The transitional and savings provisions set out in Schedule 7, which relate to amendments made to this Act by the Hazardous Substances and New Organisms Amendment Act 2015, have effect for the purposes of this Act.

Section 3A: inserted, on 5 September 2015, by section 6 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Part 2 Purpose of Act

4 Purpose of Act

The purpose of this Act is to protect the environment, and the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms.

5 Principles relevant to purpose of Act

All persons exercising functions, powers, and duties under this Act shall, to achieve the purpose of this Act, recognise and provide for the following principles:

(a)

the safeguarding of the life-supporting capacity of air, water, soil, and ecosystems:

(b)

the maintenance and enhancement of the capacity of people and communities to provide for their own economic, social, and cultural well-being and for the reasonably foreseeable needs of future generations.

6 Matters relevant to purpose of Act

All persons exercising functions, powers, and duties under this Act shall, to achieve the purpose of this Act, take into account the following matters:

(a)

the sustainability of all native and valued introduced flora and fauna:

(b)

the intrinsic value of ecosystems:

(c)

public health:

(d)

the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga:

(e)

the economic and related benefits and costs of using a particular hazardous substance or new organism:

(f)

New Zealand’s international obligations.

Section 6(e): substituted, on 30 October 2003, by section 6 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

7 Precautionary approach

All persons exercising functions, powers, and duties under this Act including, but not limited to, functions, powers, and duties under sections 28A, 29, 32, 38, 45, and 48, shall take into account the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects.

Section 7: amended, on 31 December 2000, by section 4 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

8 Treaty of Waitangi

All persons exercising powers and functions under this Act shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

9 Methodology to be used

(1)

The Governor-General may from time to time, by Order in Council, establish a methodology (which includes an assessment of monetary and non-monetary costs and benefits) for making decisions under Part 5; and the Authority shall consistently apply that methodology when making such decisions.

(2)

Before making any recommendation for the purpose of making any Order in Council under subsection (1), the Minister shall request the Authority to—

(a)

develop a proposed methodology; and

(b)

establish a process that the Minister considers gives the public adequate time and opportunity to make submissions on the proposed methodology to the Authority; and

(c)

advise the Minister of any submissions received, and any comments the Authority wishes to make on the submissions, or the proposed methodology,—

and the Minister shall have regard to those submissions and comments.

(3)

A failure to comply with subsection (2) shall not affect the validity of any Order in Council made under subsection (1).

(4)

Notwithstanding section 59, the Authority shall not proceed to determine any application made under Part 5 until an Order in Council has been made under subsection (1).

(5)

No decision of the Authority under Part 5 shall be challenged on the adequacy or otherwise of the methodology developed and applied under subsection (1).

Part 3 Powers, functions, and duties

10 Powers, functions, and duties of Minister

(1)

The Minister may—

(a)
[Repealed]

(b)
[Repealed]

(c)

decide any application made under this Act in accordance with the provisions of sections 68 to 73 inclusive of this Act:

(d)

carry out any powers, functions, and duties conferred on the Minister by or under this Act.

(2)

Subsection (1)(c) and (d) apply despite section 113 of the Crown Entities Act 2004.

(3)

This section does not limit section 27 of the Crown Entities Act 2004.

Section 10(1)(a): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 10(1)(b): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 10(1)(c): amended, on 7 May 1999, by section 15(a) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 10(2): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 10(3): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

11 Powers, functions, and duties of Authority

(1)

The Authority may—

(a)

advise the Minister on any matter relating to the purpose of this Act, including, but not limited to,—

(i)

the extent to which persons are complying with the provisions of this Act:

(ii)

inconsistencies or conflicts between any controls placed on hazardous substances and new organisms under this Act and any controls placed on any hazardous substance and new organisms under any other Act:

(iii)

the consideration and investigation of the use of environmental user charges in accordance with section 96:

(b)

monitor and review—

(i)

the extent to which the Act reduces adverse effects on the environment or people from hazardous substances or new organisms:

(ii)

the enforcement of this Act including, but not limited to, the exercise of any power under section 103 by any enforcement officer:

(c)

promote awareness of the adverse effects of hazardous substances and new organisms on people or the environment and awareness of the prevention or safe management of those effects:

(d)

contribute to and co-operate with international forums and carry out international requirements as directed by the Minister:

(e)

enquire into any incident or emergency involving a hazardous substance or a new organism:

(f)

keep such registers relating to hazardous substances and new organisms as may be required by this Act or as may be necessary to administer this Act:

(fa)

approve forms for applications under Part 5:

(fb)

give directions as to the disposal of persistent organic pollutants:

(fc)

approve standards for containment facilities:

(g)

carry out any powers, functions, and duties conferred on it by or under this Act.

(2)

The Authority must, before exercising the function specified in subsection (1)(fc), consult the persons whom the Authority considers are representative of the classes of person who are likely to have an interest in the standards.

(3)

This section does not limit section 17 of the Crown Entities Act 2004.

Section 11(1)(fa): inserted, on 31 December 2000, by section 5 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 11(1)(fb): inserted, on 23 December 2004, by section 5 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 11(1)(fc): inserted, as section 11(1)(fb), on 30 October 2003, by section 7(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 11(1)(fc) paragraph number: substituted, on 20 September 2007, by section 4(1) of the Hazardous Substances and New Organisms Amendment Act 2007 (2007 No 61).

Section 11(1)(g): amended, on 1 July 2011, by section 5 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 11(2): added, on 30 October 2003, by section 7(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 11(2): amended, on 20 April 2010, by section 6 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 11(3): added, as section 11(2), on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 11(3) subsection number: substituted, on 20 September 2007, by section 4(2) of the Hazardous Substances and New Organisms Amendment Act 2007 (2007 No 61).

12 Powers, functions, and duties of enforcement officers

Any enforcement officer may, in relation to the powers, functions, and duties specified in the enforcement officer’s warrant of appointment,—

(a)

give advice and information on the provisions of this Act:

(b)

promote and monitor compliance with the provisions of this Act:

(c)

provide information to the Authority if requested to do so by the Authority:

(d)

carry out any powers, functions, and duties conferred on enforcement officers by or under this Act.

13 General duty

(1)

Every person who imports, possesses, or uses a hazardous substance or new organism shall ensure that—

(a)

any adverse effect caused by an act or omission of that person in relation to that substance or organism on any other person or the environment is avoided, remedied, or mitigated; and

(b)

no action or omission by that person will contravene any requirement or control on that substance or organism imposed by this Act.

(2)

The duty imposed in accordance with subsection (1) is not of itself enforceable against any person, and no person is liable to any other person for a breach of that duty.

(3)

Notwithstanding subsection (2), a compliance order may be served on any person requiring that person to cease or prohibiting that person from commencing anything done or to be done by or on behalf of that person that in the opinion of the enforcement officer relates to any hazardous substance or new organism and is or is likely to be dangerous to such an extent that it has or is likely to have an adverse effect on the health and safety of people or the environment.

Part 4 Administrative provisions

Part 4 heading: substituted, on 1 July 2011, by section 6 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

14 Establishment of Authority
[Repealed]

Section 14: repealed, on 1 July 2011, by section 7 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

15 Membership of Authority
[Repealed]

Section 15: repealed, on 1 July 2011, by section 7 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

16 Eligibility for appointment as member of Authority
[Repealed]

Section 16: repealed, on 1 July 2011, by section 7 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

17 Restriction on Ministerial direction

The Minister may not give a direction under section 103 of the Crown Entities Act 2004 that relates to the exercise of any power, duty, or function of the Authority under Part 5 or Part 6A of this Act.

Section 17: substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 17: amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 17: amended, on 22 December 2005, by section 5 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

18 EPA may appoint committees

(1)

A committee must include at least 1 member of the EPA.

(2)

A person must not be appointed as a member of a committee unless the Minister has approved the appointment.

(3)

Clause 14 of Schedule 5 of the Crown Entities Act 2004 applies to the EPA subject to subsection (2).

Section 18: substituted, on 1 July 2011, by section 8 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

18A Committee may appoint and delegate functions to subcommittee

(1)

A committee appointed by the EPA under clause 14 of Schedule 5 of the Crown Entities Act 2004 may appoint a subcommittee to hear and decide an application to which section 19(2)(b) applies.

(2)

For the purpose of subsection (1), the committee may delegate a power delegated to the committee under section 19(2)(b) to the subcommittee.

(3)

A subcommittee is a committee for the purposes of clause 15 of Schedule 5 of the Crown Entities Act 2004.

Section 18A: inserted, on 1 July 2011, by section 8 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

18B Composition of subcommittee

(1)

The majority of members of a subcommittee appointed under section 18A must be members of the committee that appointed the subcommittee.

(2)

The subcommittee need not include a member of the EPA.

Section 18B: inserted, on 1 July 2011, by section 8 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

18C Qualification for appointment to committee or subcommittee

A committee or subcommittee appointed for the purpose of section 19(2)(b) must consist of persons who collectively have particular knowledge of, and expertise in, the subject matter of the application before the committee.

Section 18C: inserted, on 1 July 2011, by section 8 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

19 Delegation by Authority

(1)

The Authority may, in writing, delegate to any person, whether or not that person is a member of the Authority, any of the Authority’s functions, powers, or duties under this Act, on such conditions as the Authority thinks fit, except—

(a)

the fixing of charges under section 21; and

(ab)

the issuing of an EPA notice; and

(b)

any power that may be delegated under subsection (2); and

(c)

this power of delegation.

(2)

The Authority may delegate in writing, on such terms and conditions as the Authority thinks fit,—

(a)

the power to conduct a rapid assessment under any of sections 35, 38BA, 42, 42A, 42B, or 42C to any person, whether or not that person is a member of the Authority:

(b)

the power to hear and decide any other application made under Part 5 or Part 6A to any committee appointed for that purpose in accordance with the Crown Entities Act 2004:

(ba)

the power to assess and approve an application under section 38I(1) for the release of a qualifying organism to the responsible chief executive:

(bb)

the power to determine whether a medicine or veterinary medicine is a qualifying medicine or qualifying veterinary medicine to the responsible chief executive:

(bc)

the power to review and amend controls under section 38L in relation to qualifying medicines and qualifying veterinary medicines to the responsible chief executive:

(bd)

the power to impose controls under section 45(2) in relation to a genetically modified human cell to which section 55 of the Hazardous Substances and New Organisms Amendment Act 2003 applies:

(c)
[Repealed]

(ca)

the power to grant an extension of an exemption under section 25C(2) to—

(i)

any employee of a person specified in section 97 with relevant experience; or

(ii)

if there is no employee with relevant experience, any other person with relevant experience, whether or not that person is a member of the Authority:

(cb)

the power to decide any application under section 28, if it is not publicly notified under section 53(2), to its chief executive:

(d)

the power to conduct a rapid assessment under section 28A to its chief executive:

(e)

the power to hear and decide any application made under section 31 to its chief executive:

(f)

the power to hear and decide an application made under section 83 for approval as a test certifier to any person, whether or not that person is a member of the Authority:

(g)

the power to appoint an enforcement officer under section 99(3)(a) to its chief executive:

(h)

the power to decide any application for any permission or licence under Part 6, or the revocation of any permission or licence under that Part, to—

(i)

any employee of the Ministry of Agriculture and Forestry, any Medical Officer of Health (as defined in section 2(1) of the Health Act 1956), or any employee of any person specified in section 97, or any enforcement officer, with relevant experience in the subject matter of the application or the permission or licence; or

(ii)

if there is no employee or enforcement officer with the relevant experience, any other person with the relevant experience, whether or not that person is a member of the Authority:

(ha)

the power to revoke a certificate under section 82C to its chief executive:

(i)

the power to decide any application for any licence under Part 6, or the revocation of any licence under that Part, to any test certifier approved under section 84.

(3)

Every decision made in accordance with a delegation under this section shall be treated in all respects as though it were a decision of the Authority.

(4)

Every person purporting to act under a delegation under this section is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.

(5)

A delegation under this section shall be revocable at will, and no such delegation shall prevent the performance or exercise of any function, power, or duty by the Authority.

(5A)

A delegate to whom any function or power is delegated under this section may delegate the function or power only—

(a)

with the prior written consent of the Authority; and

(b)

subject to the same restrictions, and with the same effect, as if the subdelegate were the delegate.

(5B)

Despite subsection (5A), if any function or power under section 26 or 51 in relation to hazardous substances or under section 28A, 29, or 32 is delegated to the chief executive under this section, the delegate may delegate the function or power to any employee of the Authority with the prior written consent of the Authority.

(6)

Every delegation under subsection (2) must be available for public inspection at the office of the Authority during ordinary office hours.

(7)

Sections 73 to 76 of the Crown Entities Act 2004 do not apply to the Authority’s functions, powers, or duties under this Act.

Section 19(1): amended, on 20 April 2010, by section 7(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 19(1)(ab): inserted, on 5 September 2015, by section 8(1) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 19(1)(b): substituted, on 20 April 2010, by section 7(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 19(2): amended, on 20 April 2010, by section 7(3) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 19(2)(a): amended, on 20 April 2010, by section 7(4) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 19(2)(a): amended, on 30 October 2003, by section 9(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 19(2)(b): amended, on 1 July 2011, by section 9(1) of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 19(2)(b): amended, on 22 December 2005, by section 6(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 19(2)(ba): inserted, on 30 October 2003, by section 9(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 19(2)(bb): inserted, on 30 October 2003, by section 9(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 19(2)(bc): inserted, on 30 October 2003, by section 9(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 19(2)(bd): inserted, on 30 October 2003, by section 9(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 19(2)(c): repealed, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 19(2)(ca): inserted, on 23 December 2004, by section 6 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 19(2)(cb): inserted, on 20 April 2010, by section 7(5) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 19(2)(d): added, on 31 December 2000, by section 6(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 19(2)(e): added, on 31 December 2000, by section 6(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 19(2)(f): added, on 31 December 2000, by section 6(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 19(2)(g): added, on 31 December 2000, by section 6(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 19(2)(h): added, on 24 March 2004, by section 4 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 19(2)(ha): inserted, on 22 December 2005, by section 6(2) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 19(2)(ha): amended, on 5 September 2015, by section 8(2) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 19(2)(ha): amended, on 20 April 2010, by section 7(6) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 19(2)(i): added, on 24 March 2004, by section 4 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 19(3): amended, on 20 April 2010, by section 7(7) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 19(5A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 19(5B): inserted, on 5 September 2015, by section 8(3) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 19(6): added, on 31 December 2000, by section 6(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 19(7): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 19(7): amended, on 1 July 2011, by section 9(2) of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

20 Obligation to prepare and maintain register

(1)

The Authority shall keep a register of all applications made to the Authority.

(2)

The register shall specify—

(a)

the name and address of the applicant:

(b)

a sufficient description of the substance or organism to uniquely identify that substance or organism:

(c)

the purpose of the application:

(ca)

if applicable, the project concerned:

(d)

whether the application was approved or declined:

(e)

any controls attached to the approval by the Authority, including any associated permissions granted under section 95A and any associated licences granted under section 95B:

(f)

all the controls on a hazardous substance, whether the controls are imposed under this Act or any other Act.

(3)

The register shall also record the details of any list of low-risk organisms issued by the Authority.

(4)

Any decision by the Authority to approve the importation for release or development of any organism as a low-risk organism (other than an organism which is listed as a low-risk organism), shall also be included in the register.

(5)

Every person shall have the right to inspect the register during the ordinary office hours of the Authority.

(6)

The Authority may withhold any information relating to transhipment applications that this section would otherwise require to be on the register if, in its opinion, the information could pose a risk to national safety and security.

Section 20(2)(ca): inserted, on 30 October 2003, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 20(2)(e): amended, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 20(6): inserted, on 5 September 2015, by section 9(4) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

20A Register of exposure limits for substances with toxic or ecotoxic properties

(1)

The Authority must keep and maintain a register of all exposure limits set under this Act for substances with toxic or ecotoxic properties.

(2)

The register must specify—

(a)

the type of exposure limit:

(b)

the value of the exposure limit:

(c)

the hazardous substance that the exposure limit will apply to:

(d)

if the exposure limit applies to any element or compound making up the hazardous substance, the element or compound that the exposure limit will apply to.

(3)

Every person has the right to inspect the register during the ordinary office hours of the Authority.

Section 20A: inserted, on 22 December 2005, by section 7 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

21 Charges

(1)

The Authority may from time to time—

(a)

fix the charges—

(i)

on a scale of charges for exercising or performing any function, power, or duty under this Act; or

(ii)

based on the time involved in exercising or performing any function, power, or duty under this Act—

so as to recover the actual and reasonable costs incurred in the exercise of that function, power, or duty; and

(b)

specify the persons liable to pay the charge.

(2)

Before any charges are fixed pursuant to subsection (1), the Authority shall—

(a)

publicly notify the charges it proposes to fix and the persons who are liable to pay the charge; and

(b)

allow such period of time as the Authority thinks fit for any person who may be liable to pay the proposed charge to comment in writing to the Authority on whether or not the proposed charges are reasonable; and

(c)

consider any comments received in accordance with paragraph (b).

(3)

The Authority shall, after fixing any charges in accordance with this section, publicly notify the charges.

(4)

Where the Authority fixes a scale of charges or a charge based on time, the Authority shall provide an estimate of the full charge payable by any person upon request by that person.

(5)

Any charge payable under this section by any person in respect of the completed exercise or performance of any function, power, or duty by the Authority shall, until paid in full and remitted to the Authority, constitute a debt due to the Authority, and may be recovered in any court of competent jurisdiction.

22 Payments in advance

(1)

The Authority may estimate the charge payable in respect of the exercise or performance of any function, power, or duty and require that estimated charge or part of that estimated charge to be paid in full before the Authority exercises or performs the function, power, or duty to which that charge relates.

(2)

Where the actual and reasonable costs of exercising or performing any function, power, or duty,—

(a)

exceed the amount paid in advance, the difference between the amount paid and the actual and reasonable costs shall be a debt and the provisions of section 21(5) shall apply:

(b)

are less than the amount paid in advance, the Authority shall refund the difference between the amount paid and the actual and reasonable costs.

23 Fees for local authorities

Any local authority may prescribe fees by bylaw or resolution in accordance with section 150 of the Local Government Act 2002 for the exercise or performance by the local authority of any power, function, or duty under this Act.

Section 23: amended, on 22 December 2005, by section 8 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 23: amended, on 1 July 2003, by section 262 of the Local Government Act 2002 (2002 No 84).

24 Power to request information

The Authority may from time to time request any person who in the Authority’s opinion is able to give any information relating to any significant incident or emergency or likely significant incident or emergency involving a hazardous substance or new organism which is the subject of an inquiry by the Authority under section 11(e), to furnish to the Authority any such information and to produce any documents or papers or things which in the Authority’s opinion relate to any such matter and which may be in the possession or under the control of that person.

Part 4A Nga Kaihautu Tikanga Taiao

[Repealed]

Part 4A: repealed, on 1 July 2011, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

24A Establishment of Nga Kaihautu Tikanga Taiao
[Repealed]

Section 24A: repealed, on 1 July 2011, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

24B Function of Nga Kaihautu Tikanga Taiao
[Repealed]

Section 24B: repealed, on 1 July 2011, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

24C Appointment and remuneration of members and chair
[Repealed]

Section 24C: repealed, on 1 July 2011, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

24D Review of terms of reference
[Repealed]

Section 24D: repealed, on 1 July 2011, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Part 5 Assessment of hazardous substances and new organisms

Prohibition of import, etc, and types of approval

25AA This Part subject to Part 5A
[Repealed]

Section 25AA: repealed, on 30 October 2003, by section 13(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

25 Restriction of import, manufacture, development, field testing, or release

(1)

No—

(a)

hazardous substance shall be imported, or manufactured:

(b)

new organism shall be imported, developed, field tested, or released—

otherwise than in accordance with an approval issued under this Act or in accordance with Parts 11 to 16.

(1A)

Subsection (1)(b) does not apply to—

(a)

the importation of an incidentally imported new organism, if it is imported in or on goods lawfully imported under the Biosecurity Act 1993; or

(b)

the movement or use of those goods, together with any new organisms incidentally imported while they remain in or on those goods, after their importation.

(1B)

The department responsible for administering the Biosecurity Act 1993 or its agents, and any other departments recognised by the responsible Minister under section 101(2) of that Act or their agents may, despite subsection (1)(b), isolate, aggregate, multiply, or use an incidentally imported new organism for the purpose of identifying, managing, or eradicating that organism.

(2)

No approval shall be issued to import, develop, field test, or release any new organism specified in Schedule 2.

(3)

If an organism has a conditional release approval, no further approvals are required for the conditional release of the organism on the same conditions.

(4)

If an organism has an approval for importation into containment, no further approvals are required for the importation into containment of the organism.

(5)

The restriction on the importation of a new organism does not apply to biological material of the organism that cannot, without human intervention, be used to reproduce the organism.

(6)

No person may do any of the things specified in subsection (1)(a) or (b) in relation to any hazardous substance or new organism that is or has been the subject of an innovative TNP application or an innovative medicine application unless the person has applied for and been granted an approval to do that thing.

(7)

Subsection (6) ceases to apply in respect of a hazardous substance or new organism on the date that section 55(3) or (4) ceases to apply to the Authority.

(8)

[Repealed]

Section 25 heading: amended, on 9 April 2008, by section 6(1) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 25(1A): inserted, on 9 April 2008, by section 6(2) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 25(1B): inserted, on 9 April 2008, by section 6(2) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 25(2): amended, on 30 October 2003, by section 12(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 25(3): substituted, on 30 October 2003, by section 12(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 25(4): added, on 30 October 2003, by section 12(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 25(5): added, on 30 October 2003, by section 12(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 25(5): amended, on 9 April 2008, by section 6(3) of the Hazardous Substances and New Organisms Amendment Act 2008 (2008 No 22).

Section 25(6): added, on 30 October 2003, by section 12(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 25(6): amended, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 25(7): replaced, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 25(8): repealed, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

25A Prohibition of import, manufacture, or use of persistent organic pollutants

(1)

No persistent organic pollutant is to be imported or manufactured, and no approval is to be issued to import or manufacture a persistent organic pollutant, except as provided by—

(a)
(c)

section 30(ba), but only for research in a laboratory.

(2)

A persistent organic pollutant that is manufactured in New Zealand must not be used in New Zealand except for a use specified in Schedule 2A for the persistent organic pollutant.

Section 25A: inserted, on 23 December 2004, by section 7 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

25B Prohibition on storage of persistent organic pollutants

(1)

A persistent organic pollutant must not be stored in New Zealand.

(2)

However, subsection (1) does not apply to—

(a)

a persistent organic pollutant stored in accordance with conditions specified by the Authority by notice in the Gazette; or

(b)

a persistent organic pollutant in respect of which storage is specified in Schedule 2A.

Section 25B: inserted, on 23 December 2004, by section 7 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 25B(2)(a): amended, on 22 December 2005, by section 9 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

25C Continuation of certain exemptions under Toxic Substances Regulations 1983

(1)

For the purposes of sections 25A and 25B and Schedule 2A, an exemption granted under regulation 49I or regulation 49J of the Toxic Substances Regulations 1983 that is in force immediately before the commencement of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 continues—

(a)

on the same terms and conditions as in force at that time; and

(b)

until the expiry of—

(i)

the exemption; or

(ii)

an extension of the exemption (being not later than the close of 2016).

(2)

The Authority may grant an extension of an exemption for the purposes of subsection (1)(b)(ii).

Section 25C: inserted, on 23 December 2004, by section 7 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

25D Use of persistent organic pollutants imported or manufactured before commencement of Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003

(1)

This section applies to persistent organic pollutants imported or manufactured before the commencement of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003.

(2)

No person may use a persistent organic pollutant for a use not specified in Schedule 2A if the Authority has issued a direction, by notice in the Gazette, restricting the use of the persistent organic pollutant to the use in that schedule for the persistent organic pollutant.

(3)

This section does not prevent approvals being granted under—

(a)
(b)

section 30(ba), but only for research in a laboratory.

Section 25D: inserted, on 23 December 2004, by section 7 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

26 Determination of new organism or hazardous substance

(1)

The Authority may, on application by any person, determine whether or not any organism is a new organism.

(2)

A determination under subsection (1) must be issued by notice in the Gazette.

(3)

The Authority may, on application by any person, determine 1 or more of the following:

(a)

whether or not any substance is a hazardous substance:

(b)

a hazardous substance’s classification:

(c)

the approvals that apply or are required to be obtained.

(4)

A determination under subsection (3) must be publicly notified.

(5)

Before issuing a determination under this section, the Authority must have regard to—

(a)

any information held by the Authority; and

(b)

any information held by any department listed in Schedule 1 of the State Sector Act 1988 and any Crown entity; and

(c)

any information provided by the applicant.

(6)

The Authority may revoke or reissue a determination issued by it under this section if it receives further information.

Section 26: replaced, on 1 July 2016, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

27 Types of approval

In this Act, the term approval means any of the following:

(a)

an approval to import or manufacture a hazardous substance for release:

(b)

an approval to import for release or release from containment any new organism:

(ba)

a conditional release approval to import for release or release from containment a new organism:

(bb)

an approval to import for release or to release from containment a qualifying organism:

(c)

an approval to import any new organism into containment, field test any new organism in containment, develop any new organism in containment:

(d)

an approval to import any hazardous substance into containment or manufacture any hazardous substance in containment:

(e)

an approval to import or manufacture any hazardous substance for release in an emergency, import any new organism for release in an emergency, or release any new organism from containment in an emergency:

(f)

an approval to import an agricultural compound or medicine for release in a special emergency, release an agricultural compound or medicine from containment in a special emergency, or use an agricultural compound or a medicine in a special emergency.

Section 27(ba): inserted, on 30 October 2003, by section 14(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 27(bb): inserted, on 30 October 2003, by section 14(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 27(f): added, on 30 October 2003, by section 14(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

27A Approvals at any taxonomic classification

(1)

An approval referred to in section 27(b), (ba), (bb), or (c) may be granted for a new organism at any taxonomic classification that the Authority thinks fit.

(2)

An approval that is granted for a new organism (that is not a genetically modified organism) in a taxonomic classification applies to all the organisms in the taxonomic classification.

(3)

An approval that is granted for a genetically modified organism in a taxonomic classification applies only to organisms in the taxonomic classification with the same genetic modification as specified in the approval.

(4)

Despite subsections (2) and (3), an approval may exclude any organism or groups of organisms from its scope.

Section 27A: inserted, on 30 October 2003, by section 15 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Approvals for hazardous substances

28 Application for approval to import or manufacture hazardous substances

(1)

Unless an approval under section 28A or section 29 applies to the importation or manufacture of the substance, every person intending to—

(a)

import; or

(b)

manufacture—

a hazardous substance otherwise than in containment shall, before importation or manufacture, apply to the Authority for approval to import or manufacture that substance.

(2)

Every application shall be in an approved form and shall include—

(a)

the unequivocal identification of the substance and its properties; and

(b)

information on all the possible adverse effects of the substance on the environment; and

(c)

information on the intended uses of the substance throughout the life cycle of the substance; and

(d)

information on methods for disposal of the substance; and

(e)

information on all occasions where the substance has been considered by the government of any prescribed State or country or any prescribed organisation and the results of such consideration; and

(f)

such other information as may be prescribed.

(3)

The Authority may, by written notice given to the applicant, require the applicant to verify an application by statutory declaration.

(4)

An applicant may, by written notice to the Authority, withdraw the application at any time.

Section 28(1): amended, on 2 July 2001, by section 8(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 28(2): amended, on 2 July 2001, by section 8(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

28A Rapid assessment for importation or manufacture of hazardous substances

(1)

When the Authority receives an application under section 28 in respect of a hazardous substance, and the applicant has verified the information contained in the application by statutory declaration, the Authority may make a rapid assessment of the adverse effects of importing or manufacturing the substance.

(2)

The Authority may approve a hazardous substance under this section if the Authority is satisfied that—

(a)

a substance having a similar composition and similar hazardous properties has been approved; or

(b)

the substance has 1 or more hazardous properties and each hazardous property has the least degree of hazard for that property; or

(c)

the substance has been formulated so that 1 or more of its hazardous properties has a lesser degree of hazard than any substance that has been approved under this Act.

(3)

Sections 77, 77A, and 77B apply to a hazardous substance approved by the Authority under this section as if the approval had been given under section 29.

(4)

If the Authority does not approve a hazardous substance under this section, the application under section 28 may be determined under section 29.

Section 28A: inserted, on 2 July 2001, by section 9 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 28A(2)(b): amended, on 22 December 2005, by section 10(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 28A(2)(c): added, on 22 December 2005, by section 10(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 28A(3): amended, on 22 December 2005, by section 10(2) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

29 Determination of applications

(1)

After considering any application for approval made under section 28 the Authority may, in its discretion,—

(a)

approve the application if, after taking into account—

(i)

any controls which may be imposed on the substance; and

(ii)

all effects of the substance during the life cycle of that substance; and

(iii)

the likely effects of the substance being unavailable,—

the positive effects of the substance outweigh the adverse effects; or

(b)

decline the application if, after taking into account—

(i)

any controls which may be imposed on the substance; and

(ii)

all effects of the substance during the life cycle of that substance; and

(iii)

the likely effects of the substance being unavailable,—

the adverse effects of the substance outweigh the positive effects; or

(c)

decline the application if insufficient information is available to enable the Authority to determine the adverse effects of the substance.

(2)

The provisions of sections 77, 77A, and 77B shall apply to any substance approved by the Authority under subsection (1).

(3)

The Authority shall give its decision in writing, including reasons for the decision, give written notice of the decision to the applicant and every person who made a submission, and publicly notify it.

Section 29(2): amended, on 22 December 2005, by section 11 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

29A Approvals for innovative agricultural compounds and medicines
[Repealed]

Section 29A: repealed, on 30 October 2003, by section 16(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

29B Applications relating to persistent organic pollutants

(1)

An application to import a persistent organic pollutant may be granted,—

(a)

if a use for the persistent organic pollutant is specified in Schedule 2A, only for that use; or

(b)

if no use for the persistent organic pollutant is specified in Schedule 2A, only for the purpose of environmentally sound disposal.

(2)

An application to manufacture a persistent organic pollutant may be granted if manufacture for the persistent organic pollutant is specified in Schedule 2A.

Section 29B: inserted, on 23 December 2004, by section 8 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Containment approvals for hazardous substances

30 Importing hazardous substances in containment

The Authority may approve the manufacture or importation of any hazardous substance in containment for any of the following purposes:

(a)

small amounts of any hazardous substance for use as analytical standards where—

(i)

approval to import or manufacture that substance has been declined; or

(ii)

the substance is a persistent organic pollutant; or

(b)

research on any hazardous substance to acquire information for use in assessing that substance in accordance with this Part; or

(ba)

research and development on any hazardous substance; or

(c)

use in an emergency under this or any other Act; or

(ca)

formulating, relabelling, repackaging, or storing any hazardous substance for export to a destination outside New Zealand; or

(d)

such other purposes as the Authority thinks fit.

Section 30(a): substituted, on 23 December 2004, by section 9 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 30(ba): inserted, on 2 July 2001, by section 11 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 30(ca): inserted, on 22 December 2005, by section 12 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

31 Application for hazardous substance containment approval

(1)

Every person intending—

(a)

to import into containment; or

(b)

manufacture in containment—

any hazardous substance shall, before importation or manufacture, apply to the Authority for approval to import or manufacture that substance.

(2)

Every application shall be in an approved form and shall include—

(a)

identification of the substance for which approval is sought:

(b)

the purpose for which approval is sought:

(c)

the quantity of the substance proposed to be imported or manufactured:

(d)

information on all occasions where the substance has been considered by the government of any prescribed State or country or any prescribed organisation and the results of such consideration:

(e)

such other information as may be prescribed:

(f)

all information known to the applicant relating to the effects of the substance throughout the life cycle of the substance:

(g)

information on the proposed containment system.

(3)

The Authority may, by written notice given to the applicant, require the applicant to verify any application by statutory declaration.

(4)

An applicant may, by written notice to the Authority, withdraw the application at any time.

Section 31(2): amended, on 2 July 2001, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

32 Decision on application

(1)

After considering any application for approval made under section 31, the Authority may grant the application if the application is for one of the purposes specified in section 30 and the Authority is satisfied that the substance can be adequately contained.

(2)

An approval under this section—

(a)

must include controls that provide for each of the applicable matters specified in Schedule 3; and

(b)

may include controls that provide for any other matters in order to give effect to the purpose of this Act.

(3)

The Authority shall give its decision, in writing, including reasons for the decision, give written notice of the decision to the applicant and every person who made a submission, and publicly notify it.

Section 32(2): substituted, on 2 July 2001, by section 13 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

33 Exemptions from Act for small-scale research on hazardous substances

(1)

Nothing in this Act applies to any small-scale use of hazardous substances in research and development or teaching if—

(a)

the use occurs in a laboratory that meets the prescribed requirements; and

(b)

the use does not create or involve a hazardous substance for which any application for approval has been declined under this Act; and

(ba)

the use does not create or involve a persistent organic pollutant; and

(c)

the importation, storage, and transportation of the hazardous substances each meets the prescribed requirements; and

(d)

no such hazardous substance, nor any substance created from that use, is sold as a substance or in a product containing or derived from that substance, except as provided for in subsection (2).

(2)

A hazardous substance, or any substance created from the use of that hazardous substance, referred to in subsection (1) may be sold as a substance or in a product containing or derived from that substance only if it is sold to—

(a)

a laboratory in New Zealand that meets the prescribed requirements:

(b)

a laboratory outside New Zealand, but only if—

(i)

the hazardous substance or the substance has been sold to the laboratory outside New Zealand by a laboratory in New Zealand that meets the prescribed requirements; and

(ii)

the laboratory in New Zealand holds evidence that the hazardous substance or the substance will be used by the laboratory outside New Zealand in research and development or training, and produces that evidence if requested to do so by the Authority.

Section 33: substituted, on 2 July 2001, by section 14 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 33(1)(ba): inserted, on 23 December 2004, by section 10 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 33(1)(d): amended, on 22 December 2005, by section 13(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 33(2): added, on 22 December 2005, by section 13(2) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Assessment of new organisms for importation or release

34 Application for approval to import or release

(1)

Every person intending—

(a)

to import for release; or

(b)

to release from containment—

any new organism shall, before importation or release, apply, under this section or under section 38A, to the Authority for approval to import or release.

(2)

Every application under this section shall be in an approved form and shall include—

(a)

any information prescribed; and

(b)

information on all occasions where the organism has been considered by the government of any prescribed State or country or by any prescribed organisation and the results of such consideration; and

(c)

the identification of the organism; and

(d)

any likely inseparable organisms; and

(e)

all the possible adverse effects of the organism on the environment; and

(f)

the affinities of the organism with other organisms in New Zealand; and

(g)

the potential use for the organism.

(3)

The Authority may, by written notice given to the applicant, require the applicant to verify an application by statutory declaration.

(4)

Any applicant may, by written notice to the Authority, withdraw the application at any time.

Section 34(1): amended, on 30 October 2003, by section 17(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 34(2): amended, on 30 October 2003, by section 17(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 34(2): amended, on 31 December 2000, by section 15 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

34A Applications for conditional release and for release in respect of same new organism

(1)

The user of a conditional release approval may, at or after the time of applying for the approval, apply to the Authority for approval to release the new organism at the expiry of the conditional release approval.

(2)

The application must be treated as if it were an application under section 34 to release the new organism from containment.

(3)

If the application is granted, the approval takes effect immediately after the expiry of the conditional release approval.

Section 34A: inserted, on 30 October 2003, by section 18 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

35 Rapid assessment of risk for importation of new organisms

(1)

Where the Authority receives an application under section 34 to import a new organism that is not a genetically modified organism for release, the Authority may make a rapid assessment of the adverse effects of importing that organism in accordance with subsections (2) and (3).

(2)

If the Authority is satisfied that—

(a)

the organism is not an unwanted organism as defined in the Biosecurity Act 1993; and

(b)

it is highly improbable that the organism, after release,—

(i)

could form self-sustaining populations anywhere in New Zealand, taking into account the ease of eradication; or

(ii)

could displace or reduce a valued species; or

(iii)

could cause deterioration of natural habitats; or

(iv)

will be disease-causing or be a parasite, or be a vector or reservoir for human, plant, or animal disease; or

(v)

will have any adverse effects on human health and safety or the environment,—

the Authority may approve the application without controls.

(3)

If the Authority is satisfied that—

(a)

the organism is an unwanted organism as defined in the Biosecurity Act 1993; or

(b)

the organism is likely to fail the minimum standards specified in section 36

the Authority may, subject to subsection (5), decline the application.

(4)

If the Authority considers that the application should not be approved under subsection (2), then the application may be determined under section 38.

(5)

Where any person appointed by the Authority to conduct a rapid assessment of risk declines an application under subsection (3), the applicant may request the Authority to continue the assessment and determine the application in accordance with section 38.

36 Minimum standards

The Authority shall decline the application, if the new organism is likely to—

(a)

cause any significant displacement of any native species within its natural habitat; or

(b)

cause any significant deterioration of natural habitats; or

(c)

cause any significant adverse effects on human health and safety; or

(d)

cause any significant adverse effect to New Zealand’s inherent genetic diversity; or

(e)

cause disease, be parasitic, or become a vector for human, animal, or plant disease, unless the purpose of that importation or release is to import or release an organism to cause disease, be a parasite, or a vector for disease.

37 Additional matters to be considered

The Authority, when making a decision under section 38, shall have regard to—

(a)

the ability of the organism to establish an undesirable self-sustaining population; and

(b)

the ease with which the organism could be eradicated if it established an undesirable self-sustaining population.

38 Determination of applications to import or release

(1)

If an application made under section 34 is not granted under section 35 or any other section, the Authority may, in its discretion,—

(a)

approve the application if—

(i)

the organism meets the minimum standards set out in section 36; and

(ii)

after taking into account all the effects of the organism, the effects of any inseparable organism and the matters in section 37, the positive effects of the organism outweigh the adverse effects of the organism and any inseparable organism; or

(b)

decline the application if—

(i)

the organism fails to meet the said minimum standards; or

(ii)

after taking into account all the effects of the organism, the effects of any inseparable organism, and the matters in section 37, the adverse effects of the organism and any inseparable organism outweigh the positive effects; or

(iii)

insufficient information is available to enable the Authority to assess the adverse effects of the organism.

(2)

An approval under subsection (1) must be granted without controls.

(3)

Any approval to import an organism for release or to release an organism from containment shall lapse 5 years after the date of the approval unless—

(a)

the organism is sooner released; or

(b)

the Authority, following an application by any person before the expiry of the time limit, extends the time limit for a further period of up to 5 years.

(3A)

However, subsection (3) does not apply to an approval under this section that takes effect on the expiry of a conditional release approval.

(4)

Every person who releases an organism in accordance with an approval given under this section within 5 years after the date of that approval shall, unless the requirement is waived by the Authority, notify the Authority within 1 month after the date of release.

(5)

The Authority shall give its decision in writing, including reasons for the decision, give written notice of the decision to the applicant and every person who made a submission, and publicly notify it.

Section 38(1): amended, on 30 October 2003, by section 19(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 38(2): substituted, on 30 October 2003, by section 19(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 38(3A): inserted, on 30 October 2003, by section 19(3) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Conditional release of new organisms

Heading: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38A Application for approval to import or release new organism with controls

(1)

A person may apply to the Authority for a conditional release approval to import for release or to release from containment a new organism with controls.

(2)

An application for a conditional release approval must be in the approved form and must include—

(a)

all prescribed information (if any); and

(b)

information on all occasions where the organism has been considered by the government of any prescribed State or country or by any prescribed organisation and the results of the consideration; and

(c)

the identification of the organism; and

(d)

any likely inseparable organisms; and

(e)

all the possible adverse effects of the organism on the environment; and

(f)

the affinities of the organism with other organisms in New Zealand; and

(g)

the proposed use for the organism; and

(h)

the controls that the applicant proposes the organism would be subject to on its release.

(3)

The Authority may, by written notice given to the applicant, require the applicant to verify an application by statutory declaration.

(4)

Any applicant may, by written notice to the Authority, withdraw the application at any time.

Section 38A: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38B Application under section 34 may be treated as application under section 38A

The Authority may, with the agreement of the applicant, treat an application made under section 34 as if it were an application made under section 38A, and sections 38A, 38BA, 38C, and 53(1)(ab) apply accordingly.

Section 38B: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 38B: amended, on 20 April 2010, by section 8 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

38BA Rapid assessment of risk for importation or release of new organisms with controls

(1)

If the Authority receives an application under section 38A in respect of a new organism (other than a genetically modified organism), the Authority may make a rapid assessment of the adverse effects of importing the organism for release or releasing the organism from containment.

(2)

The Authority may approve the application and grant a conditional release approval with controls if the Authority is satisfied that—

(a)

the organism is not an unwanted organism as defined in the Biosecurity Act 1993; and

(b)

after the controls are imposed, the organism will comply with section 35(2)(b).

Section 38BA: inserted, on 20 April 2010, by section 9 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

38C Determination of applications to import or release new organisms with controls

(1)

If an application made under section 38A is not approved under section 38BA, the Authority may approve the application and grant a conditional release approval with controls if the Authority determines that,—

(a)

after taking into account the matters in subsection (3), the new organism is likely to meet the minimum standards set out in section 36; and

(b)

there is sufficient information available to assess the adverse effects of the organism; and

(c)

after taking into account the matters in subsection (2), the positive effects of the organism outweigh the adverse effects of the organism and any inseparable organism.

(2)

The matters to be taken into account under subsection (1)(c) are—

(a)

all the effects of the organism and any inseparable organism; and

(b)

the ability of the organism to establish a self-sustaining population; and

(c)

the ease with which the organism could be recovered or eradicated if it established an undesirable self-sustaining population; and

(d)

all the controls that will be imposed on the organism.

(3)

The matters to be taken into account in subsection (1)(a) are—

(a)

the controls that will be imposed on the approval; and

(b)

whether the controls are likely to be effective in meeting the objective of the controls; and

(c)

the ease with which the organism could be recovered or eradicated if it formed a self-sustaining population.

Section 38C: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 38C(1): amended, on 20 April 2010, by section 10 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

38D Controls

(1)

The controls that the Authority may impose on a conditional release approval include—

(a)

controlling the extent and purposes for which organisms could be used:

(b)

requiring any monitoring, auditing, reporting, and record-keeping:

(c)

imposing any obligation to comply with relevant codes of practice or standards (for example, to meet particular co-existence requirements):

(d)

requiring contingency plans to be developed to manage potential incidents:

(e)

limiting the dissemination or persistence of the organism or its genetic material in the environment:

(f)

requiring the disposal of any organisms or genetic material:

(g)

limiting the proximity of the organism to other organisms, including those that could be at risk from the conditionally released organism:

(h)

setting requirements that must be met for any material derived from the organism:

(i)

imposing obligations on the user of an approval, including levels of training or knowledge, limits on the numbers of users who may hold an approval, and the persons that they could deal with in respect of the organism:

(j)

specifying the duration of the approval or of a control before requiring review by the Authority, and the nature of that review.

(2)

Subsection (1) does not limit the type of controls the Authority may impose on a conditional release approval.

Section 38D: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38E Duration of conditional release approval

(1)

A conditional release approval that expressly states that it does not expire expires on the close of the date on which the last control to which the approval relates expires.

(2)

In any other case, a conditional release approval expires on the earlier of the following:

(a)

the date of expiry (if any) specified in the approval; or

(b)

if no date of expiry is specified, 5 years after the date on which the approval is granted; or

(c)

the close of the date on which the last control to which the approval relates expires.

Section 38E: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38F Consequences of expiry of conditional release approval

On the expiry of a conditional release approval, the new organism concerned must be disposed of unless, before the expiry of the approval, another approval has been granted under this Act.

Section 38F: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38G Review of controls on conditional release approval

(1)

The Authority may, on its own initiative or on the application of any user of a conditional release approval or of any person specified in section 97 or section 97A, review the controls that it has imposed on the conditional release approval, but only if—

(a)

the review is to amend a control so that it better meets the objective of the control; or

(b)

the control included a review requirement specifying—

(i)

the circumstances in which the control would be reviewed; and

(ii)

the potential consequences of the review.

(2)

The Authority—

(a)

may carry out the review without publicly notifying the review in accordance with section 53; but

(b)

if it does so, must—

(i)

consult, and consider the views of, the Department of Conservation and any other government agency (as defined in section 49A) that the Authority considers is likely to have an interest in the review; and

(ii)

publicly notify the results of the review.

(3)

This section does not limit section 67A.

Section 38G: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38H Restriction on release of new organism subject to conditional release approval

A person who did not obtain a conditional release approval for a new organism that is subject to a conditional release approval must not release the new organism in accordance with the approval unless, before the release, the person has given notice in writing to the Authority of the proposed release.

Section 38H: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Release of qualifying organisms

Heading: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38I Assessment of applications for release of qualifying organisms

(1)

If the Authority receives an application under section 34 that relates to a qualifying organism, the Authority may—

(a)

make a rapid assessment of the adverse effects of importing for release or releasing from containment the qualifying organism; and

(b)

approve the importation for release or the release from containment of the qualifying organism with or without controls.

(2)

If the Authority does not approve an application under this section, the Authority must assess and determine the application under section 38.

(3)

The Authority or the responsible chief executive, as the case may be, may determine that a qualifying organism is or is contained in a qualifying medicine or a qualifying veterinary medicine only if satisfied that, taking into account all the controls that will be imposed (if any), it is highly improbable that—

(a)

the dose and routes of administration of the medicine or veterinary medicine would have significant adverse effects on—

(i)

the health of the public; or

(ii)

any valued species; and

(b)

the qualifying organism could form an undesirable self-sustaining population and would have significant adverse effects on—

(i)

the health and safety of the public; or

(ii)

any valued species; or

(iii)

natural habitats; or

(iv)

the environment.

(4)

In determining under subsection (3) whether a qualifying organism is or is contained in a qualifying medicine or a qualifying veterinary medicine, the following effects (if any) are not to be taken into account:

(a)

any effect of the medicine or qualifying organism on the person who is being treated with the medicine:

(b)

any effect of the veterinary medicine or qualifying organism on the animal that is being treated with the veterinary medicine.

(5)

An approval granted under this section is not an approval—

(a)

to use a qualifying medicine until the medicine has been lawfully supplied for use under the Medicines Act 1981; or

(b)

to use a qualifying veterinary medicine until the veterinary medicine has been approved for use under the Agricultural Compounds and Veterinary Medicines Act 1997.

Section 38I: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38J Procedure for assessing and approving application by responsible chief executive

If the Authority has delegated to the responsible chief executive its power to assess and approve an application under section 38 for the release of a qualifying organism, the responsible chief executive must—

(a)

be paid the fee set by the Authority for the assessment and approval of the application; and

(b)

determine whether the medicine is a qualifying medicine or the veterinary medicine is a qualifying veterinary medicine, as the case may be; and

(c)

if the responsible chief executive is satisfied that the medicine is a qualifying medicine or the veterinary medicine is a qualifying veterinary medicine, the responsible chief executive may, with or without controls, approve the release of the qualifying organism.

Section 38J: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38K Controls

(1)

The type of controls that may be imposed on the importation for release or release from containment of a qualifying organism include—

(a)

controls for the distribution of the qualifying medicine or qualifying veterinary medicine:

(b)

controls providing for the methods of administering the qualifying medicine or qualifying veterinary medicine:

(c)

controls concerning the persons who may administer the qualifying medicine or qualifying veterinary medicine:

(d)

controls concerning the persons to whom the qualifying medicine may be administered:

(e)

controls concerning the animals to which the qualifying veterinary medicine may be administered.

(2)

Subsection (1) does not limit the type of controls that may be imposed on the importation for release or release from containment of a qualifying organism.

Section 38K: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

38L Review of controls for qualifying organisms

(1)

The Authority may, on its own initiative or on the application of the holder of an approval under section 38I or of any person specified in section 97 or section 97A, review any controls that it has imposed on the approval, but only if—

(a)

the review is to amend a control so that it better meets the objective of the control; or

(b)

the control included a review requirement specifying—

(i)

the circumstances in which the control would be reviewed; and

(ii)

the potential consequences of the review.

(2)

The Authority—

(a)

may carry out the review without publicly notifying the review in accordance with section 53; but

(b)

if it does so, must—

(i)

consult, and consider the views of, any government agency (as defined in section 49A) that the Authority considers is likely to have an interest in the review; and

(ii)

publicly notify the results of the review.

(3)

This section does not limit section 67A.

Section 38L: inserted, on 30 October 2003, by section 20 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Containment approval for new organisms

39 Importation or development of new organisms in containment

(1)

The Authority may approve the importation, development, or field testing of any new organism into containment for the following purposes:

(a)

the development of any new organism:

(b)

field testing any new organism:

(c)

maintaining a new organism for use in an emergency (as defined in section 46):

(d)

the conservation of any genetic material:

(e)

the public display of any organism including, but not limited to, display in a circus or zoological garden:

(f)

maintaining a new organism in containment to produce antigens, biopesticides, biopharmaceuticals, enzymes, hormones, or vaccines for release:

(g)

maintaining new organisms in containment for diagnostic purposes:

(h)

such other purposes as the Authority thinks fit.

(2)

A decision by the Authority under section 38 or section 38C or section 38I to decline an application does not prevent the Authority from granting an approval to import a new organism into containment, develop a new organism in containment, or field test a new organism in containment for 1 or more of the purposes specified in subsection (1).

(3)

If an application has been made to the Authority for a conditional release approval, any person may apply to the Authority for approval to put the organism into containment and the application—

(a)

must be treated in all respects as an application to import a new organism into containment; and

(b)

may be granted only for 1 or more of the purposes specified in subsection (1).

(4)

If an application has been made to the Authority for an approval under section 38I, any person may apply to the Authority for approval to put the qualifying organism into containment, and the application—

(a)

must be treated in all respects as an application to import a new organism into containment; and

(b)

may be granted only for 1 or more of the purposes specified in subsection (1).

Section 39(1)(a): amended, on 30 October 2003, by section 21(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 39(2): substituted, on 30 October 2003, by section 21(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 39(3): added, on 30 October 2003, by section 21(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 39(4): added, on 30 October 2003, by section 21(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

40 Application for containment approval for new organisms

(1)

Every person intending to import any new organism into containment, or develop or field test any new organism in containment, must apply to the Authority for approval to do so before importing, developing, or field testing the organism.

(2)

Every application shall be in an approved form and shall include any information prescribed, information on all occasions where the organism has been considered by the government of any prescribed State or country, or by any prescribed organisation, and the results of such consideration, information about the containment system for the organism, and,—

(a)

for the development of a genetically modified organism,—

(i)

the identification of the organism; and

(ii)

the description of the project and the experimental procedures to be used; and

(iii)

the details of the biological material to be used; and

(iv)

the expression of foreign nucleic acid material; and

(v)

all the possible adverse effects of the organism on the environment:

(b)

for field testing of a genetically modified organism,—

(i)

the identification of the organism; and

(ii)

the purposes of the field testing; and

(iii)

the genetic modifications of the organism to be tested; and

(iv)

the nature and method of field trials and the experimental procedures to be used; and

(v)

all the possible adverse effects of the organism on the environment.

(3)

The Authority may, by written notice given to the applicant, require the applicant to verify an application by statutory declaration.

(4)

An applicant may, by written notice to the Authority, withdraw the application at any time.

Section 40(1): substituted, on 20 April 2010, by section 11 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 40(2): amended, on 31 December 2000, by section 16 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 40(2)(a)(iv): amended, on 7 May 1999, by section 4 of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 40(2)(b): amended, on 30 October 2003, by section 22 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 40(2)(b)(ii): amended, on 30 October 2003, by section 22 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

41 Assessment of adverse effects of developing genetically modified organisms

The Governor-General may, from time to time, by Order in Council, make regulations—

(a)

specifying the procedures and methods for assessing the probability that an adverse effect will occur from genetic modification of an organism:

(b)

specifying the probability that adverse effects will occur from specified development procedures:

(c)

specifying the circumstances in which genetic modification of an organism is a low risk genetic modification.

42 Rapid assessment of adverse effects for development of genetically modified organisms

(1)

Where the Authority receives an application under section 40 to develop a genetically modified organism in containment, the Authority may make a rapid assessment of the adverse effects of developing that organism.

(2)

If the Authority is satisfied that any development meets the criteria for a low-risk genetic modification specified in regulations made under section 41, the Authority may approve the application and impose such controls providing for each of the matters specified in Schedule 3 as the Authority thinks fit.

42A Rapid assessment of projects for low-risk genetic modification

(1)

An application made under section 40 to develop a new organism in containment may, instead of specifying the information required by or under section 40(2), describe—

(a)

a project for the development of genetically modified organisms; and

(b)

the identity of the host organisms; and

(c)

the nature and range of the proposed genetic modifications.

(2)

After the Authority receives an application under section 40 that complies with subsection (1), the Authority may make a rapid assessment of the adverse effects of carrying out the project if it is satisfied that—

(a)

any host organism specified for the project meets the criteria for host organisms prescribed in regulations made under section 41; and

(b)

any genetic modification specified for the project meets the criteria for genetic modification procedures prescribed in regulations made under section 41.

(3)

If the Authority has completed a rapid assessment under subsection (2), the Authority may—

(a)

approve the application; and

(b)

impose controls providing for each of the matters specified in Schedule 3 as the Authority thinks fit; and

(c)

direct the applicant to provide progress reports on the development at the times specified or required by the Authority.

Section 42A: inserted, on 30 October 2003, by section 23 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

42B Rapid assessment of adverse effects for importation of genetically modified organisms into containment

(1)

After the Authority receives an application under section 40 to import a genetically modified organism into containment, the Authority may make a rapid assessment of the adverse effects of importing the organism.

(2)

If the Authority is satisfied that the importation meets the criteria for a low-risk genetic modification specified in regulations made under section 41, the Authority may approve the application and impose controls providing for each of the matters specified in Schedule 3 as the Authority thinks fit.

(3)

Section 25(4) does not apply if an application is approved under this section by a person acting under delegated authority from the Authority under section 19(2)(a).

Section 42B: inserted, on 30 October 2003, by section 23 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

42C Rapid assessment of adverse effects for development in containment, etc, of certain new organisms

(1)

If the Authority receives an application under section 40 in respect of a new organism (other than a genetically modified organism), the Authority may make a rapid assessment of the adverse effects of importing the organism into containment, or of developing or field testing the organism in containment.

(2)

If the Authority is satisfied that the importation, development, or field testing is low-risk, in accordance with regulations made under subsection (3), the Authority may approve the application and impose controls providing for each of the matters specified in Part 2 of Schedule 3 as the Authority thinks fit.

(3)

The Governor-General may, by Order in Council, make regulations specifying the circumstances in which there is a low risk of adverse effects from—

(a)

importing a new organism (other than a genetically modified organism) into containment; or

(b)

developing or field testing a new organism (other than a genetically modified organism) in containment.

Section 42C: inserted, on 20 April 2010, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

43 Additional matters to be considered when application made for developing new organisms in containment

The Authority, when making a decision under section 45, must have regard to,—

(a)

in the case of an application made under section 40 to genetically modify an organism in containment, the matters specified in regulations made under section 41; and

(b)

in the case of all applications made under section 40 to develop a new organism in containment, the matters specified in section 37.

Section 43: substituted, on 30 October 2003, by section 24 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 43(a): amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 43(b): amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

44 Additional matters to be considered on applications for importing and field testing of organisms

The Authority, when making a decision under section 45, on an application made under section 40 to import a new organism into, or field test a new organism in, containment, must have regard to—

(a)

the matters in section 37; and

(b)

the ability of the organism to escape from containment.

Section 44: amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

44A Additional matters to be considered for certain developments and field tests

(1)

This section applies to an application—

(a)

to develop a new organism in containment that is a genetically modified organism, to the extent that the development does not take place in a containment structure:

(b)

to field test a new organism in containment if the new organism is a genetically modified organism.

(2)

In deciding whether to approve or decline an application, the Authority must take into account—

(a)

any adverse effects of developing or field testing the organism on—

(i)

human health and safety; and

(ii)

the environment, in particular ecosystems and their constituent parts; and

(b)

any alternative method of achieving the research objective that has fewer adverse effects on the matters referred to in paragraph (a) than the development or field test; and

(c)

any effects resulting from the transfer of any genetic elements to other organisms in or around the site of the development or field test.

(3)

The matters referred to in subsection (2) are in addition to the matters referred to in sections 44 and 45.

(4)

[Repealed]

Section 44A: inserted, on 28 May 2002, by section 7(1) of the Hazardous Substances and New Organisms (Genetically Modified Organisms) Amendment Act 2002 (2002 No 13).

Section 44A(4): repealed, on 30 October 2003, by section 25 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

45 Determination of application

(1)

After considering any application for approval made under section 40, the Authority (if the application is not approved under section 42, 42A, 42B, or 42C) may, in its discretion,—

(a)

approve the application if—

(i)

the application is for one of the purposes specified in section 39(1); and

(ii)

after taking into account all the effects of the organism and any inseparable organism, including, but not limited to, the effects on the matters in section 43 (for application to develop a new organism in containment) or the matters in section 44 (for applications to import a new organism into, or field test a new organism in, containment), the beneficial effects of having the organism in containment outweigh the adverse effects of the organism and any inseparable organism; and

(iii)

the Authority is satisfied that the organism can be adequately contained; or

(b)

decline the application in any other case.

(2)

An approval under this section—

(a)

must include controls that provide for each of the applicable matters specified in Schedule 3; and

(b)

may include controls that provide for any other matters in order to give effect to the purpose of this Act.

(3)

The Authority shall give its decision in writing, including reasons for the decision, give written notice of the decision to the applicant and every person who made a submission, and publicly notify the decision.

(4)

In taking into account the adverse effects of the organism under subsection (1)(a)(ii), the Authority must take into account—

(a)

the adverse effects (if any) of having the organism and any inseparable organism in containment; and

(b)

the probability that the organism may escape after considering all the controls to which the organism would be subject if the application were approved; and

(c)

the effects of the organism, if the organism were to escape.

Section 45(1): amended, on 20 April 2010, by section 13 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 45(1)(a)(ii): substituted, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 45(2): substituted, on 31 December 2000, by section 17 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 45(4): added, on 30 October 2003, by section 26(3) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

45A Controls required for certain developments and for all field tests

(1)

This section applies to an approval under section 45

(a)

to develop a new organism in containment that is a genetically modified organism, to the extent that the development does not take place in a containment structure; or

(b)

to field test a new organism in containment if the new organism is a genetically modified organism.

(2)

An approval—

(a)

must include controls to ensure that, after the end of the development or field test, the organism and any heritable material from the organism is removed or destroyed; and

(b)

may include controls to ensure that, after the end of the development or field test and after heritable material is removed or destroyed, some or all of the genetic elements remaining from the organism are removed or destroyed.

(3)

In subsection (2), destroyed includes leaving genetic elements to break down or become inactive at the site of the development or field test.

Section 45A: inserted, on 28 May 2002, by section 8(1) of the Hazardous Substances and New Organisms (Genetically Modified Organisms) Amendment Act 2002 (2002 No 13).

45B Animals in circus or zoological garden deemed approved under section 255

The Authority may, for a deemed approval under section 255,—

(a)

include controls that provide for each of the applicable matters specified in Schedule 3; and

(b)

include controls that provide for any other matters in order to give effect to the purpose of this Act; and

(c)

remove or vary the conditions imposed under section 255 that the organism remains at a particular place.

Section 45B: inserted, on 30 October 2003, by section 27 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Use of hazardous substances and new organisms in emergencies

46 Meaning of emergency

(1)

For the purposes of section 30(c) and sections 47 to 49, emergency means—

(a)

an event involving the release of a new organism for which a national pest management plan has been approved under section 66 of the Biosecurity Act 1993; or

(b)

a state of emergency declared under the Civil Defence Emergency Management Act 2002; or

(c)

an emergency as defined in section 2 of the Fire Service Act 1975; or

(d)

an emergency declared under Part 9; or

(e)

a marine oil spill emergency under the Maritime Transport Act 1994.

(2)

Sections 47 and 48 apply to every foreseeable emergency where the importation, release, or use of the hazardous substance or new organism in that emergency is also foreseeable.

Section 46(1)(a): amended, on 18 September 2012, by section 93 of the Biosecurity Law Reform Act 2012 (2012 No 73).

Section 46(1)(b): substituted, on 1 December 2002, by section 117 of the Civil Defence Emergency Management Act 2002 (2002 No 33).

47 Application for approval to use a hazardous substance or new organism in an emergency

(1)

Every person intending to—

(a)

import any hazardous substance for release in an emergency; or

(b)

import any new organism for release in an emergency; or

(c)

release any new organism from containment in an emergency; or

(d)

release any hazardous substance from containment in an emergency; or

(e)

use any hazardous substance in an emergency in a manner which would otherwise contravene the provisions of this Act or any regulations—

shall, before importation or release or use, apply to the Authority for approval to import or release or use.

(2)

Every application shall be in an approved form and shall include—

(a)

information to identify the substance or organism; and

(b)

information showing that the hazardous substance or new organism is necessary to deal with an emergency; and

(c)

a proposed plan for dealing with the use of the substance or organism in the emergency; and

(d)

all information relating to the effects of the substance or organism; and

(e)

such other information as may be prescribed.

(3)

The Authority may, by written notice given to the applicant, require the applicant to verify an application by statutory declaration.

(4)

An applicant may, by written notice to the Authority, withdraw the application at any time.

Section 47(2): amended, on 31 December 2000, by section 18 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

48 Determination of applications

(1)

The Authority may approve or decline an application under section 47, but may only decline the application if it is satisfied that—

(a)

the organism or substance is not necessary for use in the emergency; or

(b)

if the application relates to a substance, the proposed plan does not adequately control the adverse effects of the substance; or

(c)

if the application relates to a new organism, the proposed plan does not adequately control the adverse effects of the organism or any inseparable organism (including, but not limited to, adequate control of the organism if the organism is likely to establish an undesirable self-sustaining population, taking into account the ease of destroying such a population).

(2)

When approving the substance or organism in accordance with subsection (1), the Authority shall impose the following controls:

(a)

that the substance or organism only be released when an emergency has been declared under this Act or declared in accordance with the provisions of any other Act:

(b)

that the organism or substance only be released for a specified type of emergency:

(c)

that the organism or substance may only be released if the emergency is dealt with in accordance with a specified plan which includes:

(i)

the measures which must be taken to avoid, remedy, or mitigate any actual or potential adverse effects from the use of that substance or organism:

(ii)

the requirements for the disposal of the hazardous substance and any waste products:

(iii)

the requirements for the eradication or control of any new organism.

(3)

The Authority shall give its decision in writing, including reasons for the decision, give written notice of the decision to the applicant, and publicly notify it.

49 Exemptions from provisions of Act in emergencies

Subject to sections 49A to 50, nothing in this Act shall apply to any hazardous substance or new organism required for use in an emergency where—

(a)

the emergency; or

(b)

the use of the substance or organism in the emergency—

was not foreseeable.

Section 49: amended, on 30 October 2003, by section 28 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Rapid assessment and approval of agricultural compounds and medicines in special emergencies

Heading: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49A Interpretation

In sections 49B to 49K,—

adverse event includes, but is not limited to, any of the events or emergencies specified in section 46(1)

agricultural compound means an agricultural compound (as defined in section 2(1) of the Agricultural Compounds and Veterinary Medicines Act 1997) that is or contains a hazardous substance or a new organism

government agency means—

(a)

a department specified in Schedule 1 of the State Sector Act 1988:

(b)

a Crown entity specified in Schedule 4 or 4A of the Public Finance Act 1989

interested government agency means a government agency that, in the opinion of the Authority, is likely to have an interest in the approval of an agricultural compound or medicine in a special emergency

medicine means a medicine (as defined in section 3 of the Medicines Act 1981) that is or contains a hazardous substance or new organism

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—

(a)

this Act; or

(e)
(f)

special emergency means a special emergency declared under section 49B.

Section 49A: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 49A government agency paragraph (b): amended, on 18 July 2013, by section 57 of the Public Finance Amendment Act 2013 (2013 No 50).

49B Declaration of special emergency

(1)

A responsible Minister may declare an adverse event to be a special emergency if the adverse event is a matter that comes within the Minister’s portfolio.

(2)

A declaration of a special emergency—

(a)

must be notified or published in the Gazette as soon as practicable after the special emergency is declared; and

(b)

is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

(3)

A special emergency expires—

(a)

on the close of the date (if any) specified in the declaration as the expiry date; or

(b)

if paragraph (a) does not apply, then on the close of a date specified by notice in the Gazette as the date of expiry of the emergency.

Section 49B: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 49B(2)(b): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

49C Application of sections 49D to 49K

Sections 49D to 49K apply to a special emergency whether or not—

(a)

the special emergency is foreseeable; and

(b)

the importation, release, or use of an agricultural compound or medicine in the special emergency is foreseeable.

Section 49C: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49D Application for approval to use agricultural compound or medicine in special emergency

(1)

A person who does not have approval under this Act to do a thing specified in subsection (2) may apply to the Authority to do the thing in a special emergency.

(2)

The things are—

(a)

import any agricultural compound or medicine for release; or

(b)

manufacture an agricultural compound or medicine that is a hazardous substance otherwise in containment; or

(c)

release any agricultural compound or medicine from containment; or

(d)

use any agricultural compound or medicine in a manner that would contravene this Act or any regulations.

(3)

For the purposes of subsection (1),—

(a)

it does not matter whether the application is made or approved before or after the special emergency has been declared:

(b)

the applicant may import, release, or use the agricultural compound or medicine before the declaration of the special emergency has been notified or published in the Gazette.

Section 49D: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49E Contents of application

(1)

An application under section 49D must be in the approved form and must include information required by the Authority that, having regard to the particular circumstances of the special emergency, the applicant can provide to the Authority in the time available.

(2)

Without limiting subsection (1), the Authority may require the following information:

(a)

information to identify the agricultural compound or medicine and the hazardous substance or new organism that is or is contained in the agricultural compound or medicine; and

(b)

information showing that the agricultural compound or medicine is necessary to deal with the special emergency; and

(c)

a proposed plan for dealing with the use of the agricultural compound or medicine in the special emergency; and

(d)

any reports by experts available from—

(i)

the applicant:

(ii)

any overseas regulatory agencies; and

(e)

written confirmation by the applicant that the agricultural compound or medicine satisfies all relevant manufacturing practices and standards; and

(f)

information on whether the agricultural compound or medicine has been approved for use in an overseas country; and

(g)

information on whether approval for use of the agricultural compound or medicine has been declined in an overseas country; and

(h)

information on the nature of the special emergency; and

(i)

information on the nature of the agricultural compound or medicine; and

(j)

information on the labelling of the agricultural compound or medicine; and

(k)

all other prescribed information (if any).

(3)

The Authority may, by written notice given to the applicant, require the applicant to verify the application by statutory declaration.

(4)

An applicant may, by written notice to the Authority, withdraw the application at any time.

Section 49E: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49F Determination of applications

(1)

As soon as practicable after receiving an application under section 49D, the Authority must complete a rapid assessment of the application and decide whether to approve or decline the application.

(2)

In determining whether to approve or decline the application, the Authority must—

(a)

consult, and have particular regard to the views of, the Department of Conservation; and

(b)

consult and consider the views of any other interested government agency; and

(c)

consider all the information on the matters specified in section 49E that, having regard to the particular circumstances of the special emergency, the applicant can provide to the Authority in the time available.

(3)

The Authority may decline the application only if it is satisfied that—

(a)

the agricultural compound or medicine is not necessary for use in the special emergency; or

(b)

if the application relates to a hazardous substance, the proposed plan does not adequately control the adverse effects of the hazardous substance; or

(c)

if the application relates to a new organism, the proposed plan does not adequately control the adverse effects of the new organism or any inseparable organism (including, but not limited to, adequate control of the organism if the organism is likely to establish an undesirable self-sustaining population, taking into account the ease of destroying such a population).

Section 49F: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49G Controls attaching to approval of application

If the Authority approves an application under section 49F, the Authority must impose the control that the agricultural compound or medicine may be released only if the special emergency is dealt with in accordance with the specified plan, and the plan includes—

(a)

the measures that must be taken to avoid, remedy, or mitigate any actual or potential adverse effects from the use of the agricultural compound or medicine:

(b)

the requirements for the disposal of the agricultural compound or medicine and any waste products:

(c)

the requirements for the eradication or control of any new organism.

Section 49G: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49H Notification or publication of approval of application

(1)

An approval under section 49F and the reasons for the approval must be notified or published in the Gazette.

(2)

The notified or published approval—

(a)

must describe the special emergency to which it relates; and

(b)

must specify where a copy of the plan for dealing with the use of the agricultural compound or medicine in the special emergency may be inspected or obtained; but

(c)

need not specify what the approval has been granted for.

(3)

If the approval is only notified in the Gazette,—

(a)

the notice must specify where a copy of the approval may be inspected or obtained; and

(b)

the Authority must make copies of the approval available for inspection free of charge, and for purchase at a reasonable cost, at the head office of the Authority and at any other places that the Authority determines as necessary or appropriate.

Section 49H: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49I Effect of approval of release

(1)

An approval for the importation, release, or use of an agricultural compound or medicine in a special emergency is limited to the importation, release, or use of the agricultural compound or medicine in the special emergency.

(2)

If an approval relates to a new organism, the organism does not cease to be a new organism because it is released in accordance with the approval.

Section 49I: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49J Duration of approval

An approval under section 49F takes effect on the day specified in the approval, and expires on the earlier of—

(a)

the date of expiry (if any) of the special emergency specified by a responsible Minister in—

(i)

the declaration declaring the special emergency; or

(ii)

a later declaration declaring that the special emergency has ceased; or

(b)

the date of expiry (if any) specified by the Authority in the approval, which must not be later than the date of expiry of the special emergency; or

(c)

if paragraph (a) or paragraph (b) does not apply, 2 years after the date on which the approval is granted.

Section 49J: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

49K Consequences of expiry of approval

On the expiry of an approval under section 49F that relates to a hazardous substance or new organism, the hazardous substance or new organism must be disposed of unless, before the expiry of the approval, the applicant has, under any other provision of this Act, been granted an approval.

Section 49K: inserted, on 30 October 2003, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Rapid assessment and approval of other hazardous substances in special emergencies

Heading: inserted, on 22 December 2005, by section 14 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

49L Rapid assessment and approval of other hazardous substances in special emergencies

(1)

Sections 49A to 49K apply, with all necessary modifications, to the rapid assessment and approval of other hazardous substances in special emergencies.

(2)

In this section, other hazardous substances means hazardous substances that are not already covered by sections 49A to 49K by virtue of being contained in an agricultural compound or a medicine.

Section 49L: inserted, on 22 December 2005, by section 14 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Prohibited list organisms

50 Prohibited organisms

(1)

The importation or release or development of any organism specified in Schedule 2 is prohibited.

(2)

The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 2 to—

(a)

add a new organism that the Authority has, under subsection (3), recommended to the Minister be included in the schedule:

(b)

add a new organism, or group or groups of new organisms, that have adverse effects on the health and safety of people or the environment:

(c)

remove an organism or group of organisms, but only if the organism was inserted by Order in Council.

(2A)

Subsection (2) applies subject to section 141.

(2B)

An organism in Schedule 2 that is prescribed as not a new organism in regulations made under section 140(1)(ba) is to be treated as if it had been removed from that schedule.

(3)

The Authority may, after declining any application made under this Act in relation to an organism, recommend to the Minister that an Order in Council be made to include the organism in Schedule 2, where the Authority is satisfied that—

(a)

the organism is likely to have any of the effects described in section 36; and

(b)

any likely adverse effects which may occur should the organism escape from containment would outweigh any likely beneficial effects of allowing the organism to be imported into containment.

(4)

The Authority, when making a recommendation under subsection (3), may advise the Minister that a group of organisms should be included in Schedule 2 if it is difficult for persons to distinguish between high-risk and low-risk members of that group.

(5)

An Order in Council made under this section 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 50(1): amended, on 30 October 2003, by section 30(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 50(2): substituted, on 30 October 2003, by section 30(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 50(2A): inserted, on 30 October 2003, by section 30(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 50(2B): inserted, on 30 October 2003, by section 30(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 50(3): amended, on 30 October 2003, by section 30(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 50(4): amended, on 30 October 2003, by section 30(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 50(5): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Transhipment

51 Transhipment of substances and organisms

(1)

Nothing in this Act shall apply to any hazardous substance or new organism transhipped through New Zealand where any person has—

(a)

received approval from the Authority to tranship the hazardous substances or new organism; and

(b)

complied with any controls that the Authority has imposed on the transhipment.

(2)

The Authority—

(a)

shall decline approval to tranship any organism specified in Schedule 2:

(b)

may, within 10 working days after receipt of the application,—

(i)

decline approval to tranship any hazardous substance or new organism if the Authority considers that the substance or organism cannot be adequately contained so as to prevent the environment from being exposed to the substance or organism or any adverse effects of the substance or organism; or

(ii)

approve the transhipment of any hazardous substance or new organism with such controls as the Authority thinks fit.

Section 51(2)(a): amended, on 30 October 2003, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Procedure for assessment

52 Applicant may be required to provide further information

(1)

Where the Authority considers that an applicant is able to provide further relevant information, the Authority may, by written notice given to the applicant not later than 10 working days after the receipt of the application, require the applicant to supply such further information relating to the application as is specified in the notice.

(2)

Where the applicant fails to comply with any request made in accordance with subsection (1) within 1 year after the date of the request, the application shall lapse.

53 Applications required to be publicly notified

(1)

The following applications shall be publicly notified by the Authority:

(a)
[Repealed]

(ab)

an application under section 38A for a conditional release approval for a new organism, if the application has not been approved under section 38BA:

(b)

an application, under section 34, to import for release any new organism, if the application has not been approved under section 35 or section 38I:

(c)

an application, under section 34, to release any new organism from containment, if the application has not been approved under section 38I:

(d)

an application, under section 40, to field test a genetically modified organism:

(e)

an application under section 47 to import, release, or use a hazardous substance or a new organism in an emergency:

(f)
[Repealed]

(1A)

The Authority must publicly notify, in 1 or more public notices,—

(a)

an application under section 96B to issue, amend, or revoke a group standard; and

(b)

the proposal to issue or amend (as the case may be) a group standard; and

(c)

the Authority’s assessment of the matters required under section 96C(1)(a), (b), (c), (d), and (e) in relation to a group standard as proposed to be issued or amended.

(2)

The Authority may, if it considers that there is likely to be significant public interest, publicly notify—

(a)

an application under section 40 in respect of a new organism (other than a genetically modified organism), if the application has not been approved under section 42C; or

(b)

an application under section 40 to import into containment or develop in containment a genetically modified organism, if the application has not been approved under section 42, 42A, or 42B; or

(c)

an application under section 28, if the application has not been approved under section 28A.

(3)

The public notice shall state—

(a)

that any person may make a written submission on the application; and

(b)

a closing date for receipt of submissions by the Authority; and

(c)

the place where the application and accompanying information may be viewed, and the address for service of the Authority and the applicant unless that information has been withheld—

(i)

in accordance with the Official Information Act 1982; or

(ii)

in accordance with this Act.

(4)

The Authority shall, upon receipt of the application, notify—

(a)

the Minister; and

(b)

any department listed in Schedule 1 of the State Sector Act 1988 and any Crown entity which, in the opinion of the Authority, is likely to have an interest in the application; and

(c)

if the application is an application for approval of a new organism,—

(i)

the Department of Conservation; and

(ii)

any local authority (within the meaning of the Local Government Act 2002) if, in the opinion of the Authority, the local authority is likely to have an interest in the application; and

(d)

if the application is an application for approval of a hazardous substance, WorkSafe.

Section 53(1)(a): repealed, on 20 April 2010, by section 14(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 53(1)(ab): inserted, on 30 October 2003, by section 32(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 53(1)(ab): amended, on 20 April 2010, by section 14(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 53(1)(b): amended, on 30 October 2003, by section 32(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 53(1)(c): amended, on 30 October 2003, by section 32(3) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 53(1)(f): repealed, on 5 September 2015, by section 12(1) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 53(1A): inserted, on 5 September 2015, by section 12(2) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 53(2): substituted, on 20 April 2010, by section 14(3) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 53(3)(b): amended, on 7 May 1999, by section 5 of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 53(3)(c)(ii): amended, on 7 May 1999, by section 15(b) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 53(4)(b): amended, on 25 January 2005, by section 37(1) of the Public Finance Amendment Act 2004 (2004 No 113).

Section 53(4)(c)(ii): substituted, on 30 October 2003, by section 32(5) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 53(4)(c)(ii): amended, on 5 September 2015, by section 12(3) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 53(4)(d): inserted, on 5 September 2015, by section 12(4) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

53A Method of public notification
[Repealed]

Section 53A: repealed, on 5 September 2015, by section 13 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

54 Submission on application

(1)

Any person may make a written submission on any publicly notified application to the Authority.

(2)

The submission—

(a)

shall state the reasons for making the submission; and

(b)

may state any decision sought; and

(c)

shall state whether the person making the submission wishes to be heard.

(3)

The Authority shall forward a copy of every submission to the applicant as soon as reasonably practicable after receipt of it by the Authority.

55 Information held on behalf of applicant

(1)

Where any person—

(a)

supplies any information to the Authority; and

(b)

the information is likely to relate to an application for approval; and

(c)

the relevant application has not yet been lodged with the Authority,—

the information shall be held by the Authority on behalf of that person; and the provisions of the Official Information Act 1982 shall not apply to that information until the relevant application has been received by the Authority.

(2)

Where any information supplied under subsection (1) is held by the Authority on behalf of any person, that information shall be returned upon request.

(3)

Sections 23A to 23C of the Medicines Act 1981 apply (with the necessary modifications) to the Authority (as if it were the Minister of Health) in relation to confidential information received in respect of an application made under this Act if—

(a)

the hazardous substance or new organism to which the application relates is or has been the subject of an innovative medicine application; and

(b)

the confidential information is about that substance or organism; and

(c)

the Minister of Health is, at the time the Authority wants to disclose or use the information, required under section 23B of the Medicines Act 1981 to protect information provided in, or in relation to, the innovative medicine application.

(4)

Part 6 of the Agricultural Compounds and Veterinary Medicines Act 1997 applies (with the necessary modifications) to the Authority (as if it were the Director-General) in relation to confidential information received in respect of an application made under this Act if—

(a)

the hazardous substance or new organism to which the application relates is or has been the subject of an innovative TNP application; and

(b)

the confidential information is about that substance or organism; and

(c)

the Director-General is, at the time the Authority wants to disclose or use the information, required under Part 6 of the Agricultural Compounds and Veterinary Medicines Act 1997 to protect information provided in support of the innovative TNP application.

(5)

Despite subsections (3) and (4),—

(a)

the Authority must make available a summary of the effects of a hazardous substance or new organism for the purposes of section 53(3)(c) if the Authority is required to publicly notify the application that relates to that substance or organism under section 53:

(b)

the Authority may disclose confidential information to prescribed persons or organisations or persons or organisations within prescribed classes of persons or organisations.

(6)

For the purposes of subsection (5)(b), the Governor-General may, by Order in Council, make regulations prescribing persons, organisations, or classes of persons or organisations.

(7)

In this section, confidential information means information that includes either or both of the following:

(a)

trade secrets:

(b)

information with a commercial value that would, or would be likely to, be diminished by disclosure of the information.

Section 55(3): replaced, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 55(4): replaced, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 55(4A): repealed, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 55(4B): repealed, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 55(5): replaced, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 55(6): replaced, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 55(7): replaced, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

56 Consideration of information withheld under Official Information Act 1982

Any information withheld from any person in accordance with section 9(2)(b) of the Official Information Act 1982 may be considered by the Authority in reaching a decision under this Act.

57 Authority to withhold information

(1)

Where, in the Authority’s opinion, any information which has been supplied to the Authority in respect of any application may be able to be withheld under section 9(2)(b) of the Official Information Act 1982, that information shall not be released to any person when any application is publicly notified.

(2)

Where—

(a)

the Authority receives a request to release any information held by the Authority under the Official Information Act 1982; and

(b)

the information to which the request relates,—

(i)

in the Authority’s opinion, may be able to be withheld under section 9(2)(b) of that Act; or

(ii)

has been classified as commercially sensitive by the person who gave the information to the Authority,—

the Authority shall make all reasonable efforts to contact and notify immediately the person who gave the information to the Authority that a request to release the information has been received.

(3)

Where a person receives notice from the Authority under subsection (2), that person shall, within 10 working days of receipt of the notice, respond to the Authority stating whether that person believes that the information should be withheld under section 9(2)(b) of the Official Information Act 1982 and give reasons for that person’s belief.

(4)

The Authority may release the information or withhold the information in accordance with the Official Information Act 1982 if—

(a)

the Authority has complied with subsection (2); and

(b)

the time limit specified in subsection (3) has expired.

Section 57(2): amended, on 30 October 2003, by section 34(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 57(4): substituted, on 30 October 2003, by section 34(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

58 Further information

(1)

The Authority—

(a)

may commission a report or seek advice from any person on any matters raised in relation to the application, including a review of any information provided by the applicant:

(b)

may obtain any existing relevant information on the substance or organism which is the subject of the application from any source:

(c)

shall consult with all departments or Crown entities notified of the application in accordance with section 53(4) and, where any application is for approval to import, develop, field test, conditionally release, or release a new organism, have particular regard to any submissions made by the Department of Conservation.

(1A)

Any report, advice, or other information obtained under subsection (1) may be considered at any hearing conducted by the Authority.

(2)

Where the Authority obtains further information under subsection (1), the Authority, at least 10 working days before commencement of the hearing or consideration, as the case may be, of the application, shall notify the applicant and every person who made a submission that the information is available for inspection, unless that information has been withheld in accordance with section 9(2)(b) of the Official Information Act 1982.

(3)

Where information is requested in accordance with subsection (1), the Authority may postpone the hearing or consideration of the application until the information has been received.

Section 58(1)(c): amended, on 30 October 2003, by section 35 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 58(1A): inserted, on 31 December 2000, by section 21(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 58(2): amended, on 31 December 2000, by section 21(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

59 Time limits and waivers

(1)

The Authority shall,—

(a)

where public notification of an application is required by section 53(1), (1A)(a), and (2), publicly notify that application within 10 working days of receipt unless paragraph (b) applies to that application:

(b)

if any of sections 28A, 35, 38BA, 38I, 42, 42A, 42B, and 42C apply to the application,—

(i)

make a rapid assessment of the application within 10 working days after receipt of the application; and

(ii)

if the application is not approved under one of those sections, publicly notify the application, if required under this Act, within 10 working days of the Authority’s decision:

(c)

allow 30 working days from the date of public notification for the receipt of submissions:

(d)

fix a date for commencement of the hearing or (where there is no hearing) for consideration of the application, being not more than 30 working days after the receipt of the application or the closing date for submissions, whichever is the later:

(e)

give the applicant at least 10 working days’ notice of the commencement date and the time and place of the hearing or consideration of the application:

(f)

give every person who has made a submission on the application and who has stated his or her wish to be heard, at least 10 working days’ notice of the commencement date and the time and place of the hearing.

(2)

The Authority shall publicly notify its decision as soon as reasonably practicable but not later than 30 working days after the conclusion of the hearing or, where there is no hearing, the consideration of the application.

(3)

A person may apply to the Authority to—

(a)

waive a requirement of this Act or a regulation or an EPA notice concerning—

(i)

the time within which any action shall be carried out; or

(ii)

the information that shall be supplied; or

(b)

give a direction concerning—

(i)

the time within which any action shall be carried out; or

(ii)

the terms, including terms as to adjournment, costs, or other matters, on which any information shall be supplied.

(4)

The Authority shall not extend or reduce any time period or grant an application under this section to waive a requirement as to the time within which any action shall be carried out unless it is satisfied that—

(a)

the applicant and the persons making submissions consent to that waiver; or

(b)

any of those parties who have not so consented will not be unduly prejudiced.

(5)

Subject to subsection (4), the Authority may at any time extend or reduce any time limit under this Act whether or not—

(a)

an application has been made under this section; or

(b)

that time limit has expired,—

but in all cases must ensure the matter is carried out as promptly as is reasonable in the circumstances.

Section 59(1)(a): amended, on 5 September 2015, by section 15(1) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 59(1)(a): amended, on 30 October 2003, by section 36(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 59(1)(b): substituted, on 30 October 2003, by section 36(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 59(1)(b): amended, on 20 April 2010, by section 15 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 59(1)(d): amended, on 31 December 2000, by section 22(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 59(2): amended, on 30 October 2003, by section 36(3) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 59(3)(a): amended, on 5 September 2015, by section 15(2) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 59(4): amended, on 31 December 2000, by section 22(3) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 59(5): amended, on 31 December 2000, by section 22(4) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

60 Obligation to hold hearing

A hearing of any application need not be held unless—

(a)

the Authority considers that a hearing is necessary; or

(b)

the applicant has made a written request to the Authority for a hearing; or

(c)

a person who has made a submission stated in that submission that he or she wishes to be heard and has not subsequently advised that he or she does not wish to be heard.

61 Provisions relating to hearings

(1)

The Authority shall consider and decide any application, other than an application which is the subject of a Ministerial direction under section 68.

(2)

The Authority shall keep a record of all proceedings before it.

(3)

For the purpose of considering any application, the Authority shall have the same powers as are conferred on a Commission of Inquiry by the Commissions of Inquiry Act 1908; and sections 4, 4B, 4D, 6, 7, 9, 11, and 12 of that Act shall apply accordingly.

(4)

The members of the Authority shall have, in relation to any such consideration and any decision on any matter, the same immunities and privileges as are possessed by a District Court Judge.

(4A)

Subsection (4) applies despite section 121 of the Crown Entities Act 2004.

(5)

Every summons to a witness to appear at a hearing shall be in an approved form and be signed by the person chairing the hearing.

(6)

All allowances for a witness shall be paid by the party on whose behalf the witness is called.

(7)

The Authority shall hold any hearing of a publicly notified application in public and shall establish a procedure that is appropriate and fair in the circumstances and may—

(a)

permit cross-examination; or

(b)

permit questions in clarification; or

(c)

permit only the members of the Authority to question any person.

(8)

At the hearing, the applicant and any person who made submissions and stated that they wished to be heard may speak (either personally or through a representative) and call evidence.

(9)

Where any person who has stated that he or she wished to be heard fails to appear at the hearing, the Authority may nevertheless proceed with the hearing if it considers it fair and reasonable to do so.

Section 61(4A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 61(5): amended, on 31 December 2000, by section 23 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 61(7): amended, on 7 May 1999, by section 6 of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

62 Grounds for reassessment of a substance or organism

(1)

(a)

any person; or

(b)

the chief executive of the Authority—

may at any time request the Authority to decide whether there are grounds for reassessing any new organism in containment, any conditionally released new organism, any qualifying organism released with controls, or any hazardous substance where that organism or substance has previously been assessed by the Authority.

(2)

Where any request has been made under subsection (1), the Authority may decide that grounds exist to reassess that substance or organism after taking into account that—

(a)

significant new information relating to the effects of the substance or the organism has become available; or

(b)

another substance with similar or improved beneficial effects and reduced adverse effects has become available; or

(c)

information showing a significant change of use, or a significant change in the quantity manufactured, imported, or developed has become available.

(3)

The Authority shall give its decision under subsection (2) in writing, with reasons, to the applicant.

(4)

For the purposes of subsection (1), assessed by the Authority means a decision under any of sections 28A, 29, 32, 38BA, 38C, 38I, 42, 42A, 42B, 42C, 45 or 48 or a decision by the Minister under section 73, or a deemed assessment under section 160A.

Section 62(1): amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 62(1): amended, on 30 October 2003, by section 37(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 62(4): amended, on 20 April 2010, by section 16(a) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 62(4): amended, on 20 April 2010, by section 16(b) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 62(4): amended, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 62(4): amended, on 30 October 2003, by section 37(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 62(4): amended, on 2 July 2001, by section 24 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 62(4): amended, on 7 May 1999, by section 15(c) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

63 Reassessment

(1)

Any person or the chief executive of the Authority may request the Authority to proceed with a reassessment following a decision under section 62(2).

(2)

A reassessment under this section shall be deemed to be an application and shall be publicly notified in accordance with section 53 and—

(a)

section 29 and sections 54 to 61 shall apply with all necessary modifications to a reassessment of a hazardous substance approved under section 28A or section 29:

(b)

sections 30 and 32 shall apply with all necessary modifications to a reassessment of a hazardous substance approved under section 32:

(c)

sections 39 to 45 and sections 54 to 61 shall apply with all necessary modifications to a reassessment of a new organism in containment approved under section 42, 42A, 42B, 42C, or 45:

(ca)

sections 38A to 38D and 54 to 61 apply with all necessary modifications to a reassessment of a conditional release approval:

(cb)

sections 38I to 38L and 54 to 58 apply with all necessary modifications to a reassessment of a qualifying organism released with controls:

(d)

sections 47 and 48 and sections 54 to 61 shall apply with all necessary modifications to a reassessment of a hazardous substance or new organism for use in an emergency approved under section 48.

(3)

However, a reassessment of a qualifying organism released with controls is not required to be publicly notified in accordance with section 53.

Section 63(1): amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 63(2)(a): amended, on 2 July 2001, by section 25 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 63(2)(c): amended, on 20 April 2010, by section 17 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 63(2)(ca): inserted, on 30 October 2003, by section 38(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 63(2)(cb): inserted, on 30 October 2003, by section 38(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 63(3): added, on 30 October 2003, by section 38(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

63A Modified reassessment procedure for amendments to approvals of hazardous substances

(1)

Despite anything to the contrary in this Act, the Authority may, following a decision under section 62(2), reassess a hazardous substance in accordance with this section if the Authority considers that—

(a)

a reassessment of the hazardous substance under section 63 is not appropriate because the reassessment will involve only a specific aspect of the approval; and

(b)

the amendment is not a minor or technical amendment to which section 67A applies.

(2)

A reassessment under this section—

(a)

may vary the controls that attach to a hazardous substance, or the description of a hazardous substance, or both; but

(b)

may not revoke an approval given to a hazardous substance under this Act to import or manufacture the substance.

(3)

A reassessment under this section is deemed to be an application, and sections 55 to 61 apply with all necessary modifications.

(4)

The Authority may reassess a hazardous substance under this section without publicly notifying the reassessment in accordance with section 53.

(5)

If the Authority does not publicly notify the reassessment in accordance with section 53, the Authority must—

(a)

do everything reasonably practicable on its part to consult with all persons who, in its opinion, may be affected by the reassessment; and

(b)

give those persons a reasonable opportunity to make submissions and comments to the Authority on the reassessment; and

(c)

consider all submissions and comments received.

(6)

The Authority may approve or decline an application for reassessment under this section as it considers appropriate after taking into account—

(a)

all the effects associated with the reassessment; and

(b)

the best international practices and standards for the safe management of hazardous substances.

(7)

Section 77 applies to any hazardous substance that is approved under this section.

(8)

Section 65(e) applies, with all necessary modifications, to a reassessment under this section.

Section 63A: inserted, on 22 December 2005, by section 16 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

63B Proposal for group standard may be consulted on in same way as reassessment

(1)

This section applies if the Authority—

(a)

decides to reassess a hazardous substance under section 63A without publicly notifying the reassessment in accordance with section 53; and

(b)

proposes to issue, amend, or revoke (under section 96B) a group standard that applies to the hazardous substance, on similar grounds to the grounds for deciding to reassess the substance.

(2)

The Authority may consult on the following matters, in accordance with section 63A(5), as if they were part of the reassessment:

(a)

the proposal to issue, amend, or revoke the group standard; and

(b)

its assessment of the matters referred to in section 53(1A)(c).

(3)

If the Authority consults in accordance with subsection (2), then the public notice requirements of sections 53(1A), 96C(2), and 96D do not apply.

Section 63B: inserted, on 20 April 2010, by section 18 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 63B(2)(b): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 63B(3): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

64 Suspension of approvals during reassessment

Where a decision to reassess any hazardous substance has been publicly notified under section 63(2), and the Authority has reasonable cause to believe that there is significant actual or imminent danger to human health or safety or the environment from the continued use of the substance, the Authority, by notice in the Gazette, may direct that any further use of the substance is prohibited until such time as a decision has been made following the reassessment.

65 No compensation following reassessment

Where any hazardous substance or new organism is reassessed in accordance with section 63, no compensation shall be payable to any person for any loss where the Authority—

(a)

declines to allow any further importation or manufacture of that substance; or

(b)

declines to approve the release of any new organism from containment; or

(c)

declines to approve any further importation, field testing, or development of any new organism in containment; or

(d)

suspends any approval in accordance with section 64; or

(e)

varies the controls on any substance or organism.

66 Requirement for disposing of substances

(1)

Where any hazardous substance has been reassessed in accordance with section 63 and the Authority has declined to allow any further importation or manufacture of that substance, the Authority may issue a direction, by notice in the Gazette, prohibiting the use of that substance and requiring that substance to be disposed of, at the owner’s expense, in accordance with the controls placed on it by the Authority.

(2)

Where the use of any hazardous substance is prohibited in accordance with subsection (1), the Authority may, if it thinks fit, add to or vary the controls on disposal of that substance to control any additional adverse effects of disposal of that substance in accordance with subsection (1), disclosed during reassessment.

66A Disposal of persistent organic pollutants

If Schedule 2A does not specify a use for a persistent organic pollutant or a specified use has expired,—

(a)

no person may use the substance; and

(b)

the Authority may issue a direction, by notice in the Gazette, requiring the environmentally sound disposal of the persistent organic pollutant.

Section 66A: inserted, on 23 December 2004, by section 11 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

67 Authority to direct disposal of new organisms

Following any decision to—

(a)

decline approval to release any new organism from containment; or

(b)

decline approval to import, field test, or develop any new organism,—

the Authority may direct the owner of any such organism already in New Zealand to dispose of the organism at the owner’s expense in accordance with the terms of the approval under which the organism was imported, field tested, or developed.

67A Minor or technical amendments to approvals

The Authority may, of its own motion, amend any approval given by it under this Part if it considers that the alteration is minor in effect or corrects a minor or technical error.

Section 67A: inserted, on 31 December 2000, by section 26 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Minister’s call-in powers

68 Minister’s power to call in applications with significant effects

(1)

The Minister may direct that he or she will decide an application under this Act if the Minister considers that the decision on the application will have—

(a)

significant cultural, economic, environmental, ethical, health, international, or spiritual effects; or

(b)

significant effects in an area in which the Authority lacks sufficient knowledge or experience.

(2)

The direction shall include the Minister’s reasons for giving it.

(2A)

Sections 114 and 115 of the Crown Entities Act 2004 do not apply to a direction under subsection (1).

(2B)

This section applies despite section 113 of the Crown Entities Act 2004.

(3)

Where the application is for approval to release from containment any new organism, the Minister, in the Minister’s discretion, may include in the direction given under subsection (1) a statement specifying, in the circumstances of the particular case, what is or is not significant for the purposes of applying section 36 in respect of the application.

Section 68(1): substituted, on 30 October 2003, by section 39 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 68(2A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 68(2B): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

69 Notification of Minister’s direction

(1)

A direction by the Minister under section 68 is not effective in respect of any application unless the direction is notified in the Gazette not later than 30 working days after the date on which the Authority gives public notice of the application.

(2)

The Minister shall forward a copy of the Gazette notice under subsection (1) to the Authority; and the Authority shall inquire into and report on the application concerned under sections 71 and 72.

Section 69(1): amended, on 30 October 2003, by section 40 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

70 Minister may appoint persons

Where the Minister directs that the Minister will decide any application in accordance with section 68, the Minister may appoint any person or persons with relevant knowledge or experience to sit with the Authority and exercise the power of a member of the Authority under sections 71 and 72.

71 Conduct of inquiry by Authority

(1)

On receipt of a notice under section 69, the Authority shall inquire into any application for an approval to which a direction under section 68 applies.

(2)

The Authority may require further information under section 52 in respect of any application to which such a direction applies.

(3)

Sections 53 to 61 apply, with all necessary modifications, in respect of such an inquiry as if the conduct of the inquiry were the hearing of an application.

(4)

The Authority—

(a)

must hold an inquiry in public; and

(b)

must consider—

(i)

all matters under this Act relevant to the application; and

(ii)

the Minister’s reasons for giving the direction under section 68.

Section 71(4): substituted, on 30 October 2003, by section 41 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

72 Authority to report to Minister

(1)

On completion of an inquiry under section 71, the Authority shall, as soon as practicable, submit to the Minister a written report (including recommendations and reasons) on the application referred to it by the Minister.

(2)

After receiving a report from the Authority, the Minister shall ensure that—

(a)

a copy of the report is sent to the applicant for any approval to which the report relates; and

(b)

a copy of the report is sent to every person who made a submission.

73 Minister to decide application and notify decision

(1)

When considering his or her decision on the application, the Minister shall have regard to—

(a)

the report and recommendations of the Authority; and

(b)

the reasons for calling in the application.

(2)

Within 20 working days after receiving a report from the Authority, the Minister shall give his or her decision in writing, including reasons for the decision, give written notice of the decision to the applicant and every person who made a submission, and publicly notify the decision.

(3)

Every decision by the Minister under this section may include such controls as may be imposed by the Authority under this Act, and shall have the same effect as a decision by the Authority.

Section 73(3): amended, on 30 October 2003, by section 42 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Part 5A Restrictions on approving certain applications

[Repealed]

Part 5A: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

73A Interpretation
[Repealed]

Section 73A: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

73B Application
[Repealed]

Section 73B: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

73C Authority must not consider or approve certain applications during restricted period
[Repealed]

Section 73C: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

73D Additional information required for certain applications
[Repealed]

Section 73D: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

73E Additional matters Authority must consider for certain applications
[Repealed]

Section 73E: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

73F No compensation
[Repealed]

Section 73F: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

73G Expiry
[Repealed]

Section 73G: repealed, on 30 October 2003, by section 43(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Part 6 Controls

Hazard classification system

74 Establishment of hazard classification system

Subject to section 141, the Governor-General may, from time to time, by Order in Council make regulations establishing a hazard classification system by—

(a)

prescribing for each intrinsic hazardous substance property a number of degrees or types of hazard:

(b)

prescribing, for each intrinsic hazardous substance property, a degree of hazard below which any substance is not considered hazardous.

75 Regulations prescribing hazard classification control

(1)

Subject to section 141, the Governor-General may, from time to time, by Order in Council make regulations prescribing controls for each hazard classification for the following purposes:

(a)

for substances with explosive properties:

(i)

to reduce the likelihood of an unintended explosion:

(ii)

to control the adverse effects likely to be caused by an explosion:

(b)

for substances with flammable properties:

(i)

to reduce the likelihood of an unintended fire or explosion:

(ii)

to control the adverse effects of any fire or explosion:

(c)

for substances with oxidising properties:

(i)

to reduce the likelihood of any unintended release of chemical energy as an explosion or fire:

(ii)

to control the adverse effects of any release of chemical energy as an explosion or fire:

(d)

for substances with corrosive properties:

(i)

to reduce the likelihood of any unintended corrosion:

(ii)

to control the adverse effects of any corrosion:

(e)

for substances with toxic properties:

(i)

to reduce the likelihood of any unintended exposure to any such substances:

(ii)

to control the adverse effects of any exposure to such substances:

(f)

for substances with ecotoxic properties:

(i)

to reduce the likelihood of unintended exposure to any such substance:

(ii)

to control the adverse effects of any exposure to such substances:

(g)

prescribing substances as substances which are not hazardous for the purpose of this Act.

(2)

Any regulations made under this section may require any specified person to obtain a test certificate at any specified time certifying that any prescribed requirement has been met.

(3)

Any regulations made under subsection (1)(e) or (f) may—

(a)

set, or provide for the setting of, exposure limits within a range of values, or according to a methodology:

(b)

set, or provide for the setting of, exposure limits by adopting international values or international methodologies.

Section 75(3): added, on 22 December 2005, by section 17 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

76 Requirements for containers, identification, disposal, emergencies, tracking, and fireworks

(1)

Subject to section 141, the Governor-General may from time to time, by Order in Council, make regulations prescribing controls in respect of any hazard classifications for the following purposes:

(a)

prescribing requirements for packages or containers for hazardous substances:

(b)

prescribing requirements for specifying the identification, labelling, or advertising of hazardous substances:

(c)

prescribing requirements for disposal of hazardous substances:

(d)

prescribing requirements to manage any emergency involving a hazardous substance:

(e)

prescribing systems for tracking hazardous substances which may include requirements that—

(i)

the whereabouts of the substance be recorded at all times or from time to time:

(ii)

the quantity of the substance be recorded:

(iii)

a person be identified as being in charge of the substance:

(iv)

any person handling the substance holds prescribed qualifications:

(f)

prescribing qualifications, including requirements that a person be a member of any specified professional body or organisation, for any person handling a hazardous substance.

(2)

Any requirements prescribed in accordance with paragraph (a) or paragraph (b) or paragraph (c) of subsection (1) shall comply with any relevant requirements prescribed by regulations made under section 75.

(3)

Any regulations made under this section may require any person to obtain a test certificate at any specified time certifying that any specified requirement has been met.

(4)

Despite section 18(1) of the Building Act 2004, regulations may be made prescribing requirements for stationary containers that require a person to achieve performance criteria that are additional to or more restrictive in relation to any building work than the performance criteria specified in the building code as defined in section 7 of the Building Act 2004.

Section 76(4): substituted, on 20 September 2007, by section 5 of the Hazardous Substances and New Organisms Amendment Act 2007 (2007 No 61).

76A Authority may prescribe other matters relating to hazardous substances

The Authority may, in accordance with section 76C, issue an EPA notice that does 1 or more of the following:

(a)

prescribes the method of estimating the quantity of any substance to be imported or manufactured:

(b)

prescribes countries for the purposes of sections 28 and 31:

(c)

prescribes information to be provided to the Authority with any application for approval of any hazardous substance:

(d)

prescribes, whether by reference to any specified classes of importers or manufacturers or on some other basis,—

(i)

information that importers or manufacturers must provide to the Authority; and

(ii)

related requirements, including the making available of, or the giving of, any notice or information about specified activities, matters, or things to the Authority or to an enforcement officer:

(e)

prescribes forms for the purposes of this Act that relate to any hazardous substances:

(f)

prescribes documentation to be issued in respect of any hazardous substance before importation into New Zealand:

(g)

prescribes qualifications for enforcement officers appointed under section 100:

(h)

prescribes who is an importer or a manufacturer, which may be done by reference to any classes or otherwise:

(i)

provides for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

Section 76A: inserted, on 5 September 2015, by section 24 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 76A(a): not yet in force.

Section 76A(b): not yet in force.

Section 76A(c): not yet in force.

Section 76A(e): not yet in force.

Section 76A(i): not yet in force.

76B Further provisions relating to EPA notices

(1)

An EPA notice issued under section 74, 75, 76, or 76A may—

(a)

be of general or limited application:

(b)

differ according to differences in time, place, or circumstance, or any other basis:

(c)

impose prohibitions:

(d)

impose obligations and restrictions on persons:

(e)

apply differently to people of a differing age or health status, and may apply only to people of a particular age or health status.

(2)

An EPA notice made under subsection (1) is not invalid merely because it confers a discretion on, or allows a matter to be determined or approved by, any person.

(3)

The Authority may, in any EPA notice, include transitional and savings provisions for the purpose of giving effect to any matters arising from the notice that are necessary because of the coming into effect of the notice.

Section 76B: inserted, on 5 September 2015, by section 24 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

76C Procedure for issuing EPA notices

(1)

Before issuing an EPA notice, the Authority must—

(a)

publicly notify its intention to issue the notice; and

(b)

give interested persons a reasonable time, which must be specified in the notification published under paragraph (a), to make submissions on the proposal; and

(c)

consult any persons, representative groups within the hazardous substances industry or elsewhere, government departments, WorkSafe, and Crown entities that the Authority considers appropriate in each case.

(2)

Before issuing an EPA notice, the Authority must have regard, and give any weight that it considers appropriate in each case, to the following:

(a)

the costs and benefits of implementing measures for which the notice is being proposed:

(b)

the best international practices and standards for the safe management of hazardous substances:

(c)

any other matters that the EPA considers appropriate in the circumstances.

(3)

An EPA notice must—

(a)

be signed by the chairperson of the Authority; and

(b)

set out fully the requirements of the notice, except where certain information is incorporated in the notice by reference; and

(c)

include a statement of the objective of the notice; and

(d)

be published in the Gazette.

(4)

An EPA notice must be publicly notified, along with a statement stating the extent of consultation that took place before the notice was made.

(5)

The Authority may amend or revoke any EPA notice and the amendment or revocation is subject to subsections (1) to (3), except as provided by subsection (6).

(6)

The Authority may, on its own initiative, amend an EPA notice without complying with subsections (1) and (2), if it considers that the amendment is minor in effect or corrects a minor or technical error.

(7)

A failure to comply with subsections (1), (3), and (4) does not affect the validity of any EPA notice made under this Act.

Section 76C: inserted, on 5 September 2015, by section 24 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

76D Application of Legislation Act 2012 to EPA notices

An EPA notice 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 76D: inserted, on 5 September 2015, by section 24 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

77 Controls on hazardous substances

(1)

Where the Authority has approved the importation or manufacture of any substance under section 28A or section 29, the Authority shall give that substance 1 or more hazard classifications in accordance with the intrinsic properties of that substance and the degree of hazard of that substance.

(2)

The controls prescribed for each hazard classification shall attach to the substance, but may be varied,—

(a)

from time to time by amendments to the regulations prescribing controls for the relevant hazard classification:

(b)

at the time the substance is approved, in accordance with subsections (3), (4) and (5).

(2A)

If regulations referred to in subsection (2)(a) are made, then, unless the Authority otherwise determines, the regulations do not affect any variations made by the Authority under subsections (3) to (5) before the commencement of the regulations.

(3)

The Authority may substitute or add any controls prescribed for any classification,—

(a)

where the adverse effects identified for a substance are greater than the adverse effects which would usually be associated with substances given that hazard classification; or

(b)

where another substance with similar or improved beneficial effects and reduced adverse effects has become available and the availability of the substance should be restricted by the imposition of additional controls; or

(c)

where the scientific and technical uncertainty in the available information is such that the adverse effects cannot be accurately identified.

(4)

The Authority may substitute or delete any or all controls prescribed for any classification,—

(a)

where the adverse effects identified for a substance are less than the adverse effects which would usually be associated with substances given that hazard classification; or

(b)

where the benefits of any substance are such that the controls should be varied to retain the benefits and the variation would, in the opinion of the Authority, not significantly increase the adverse effect.

(5)

Where any substance is given 2 or more hazard classifications, the Authority shall combine the prescribed controls and impose such of those controls as will control all of the adverse effects identified for the substance.

(6)

Where any controls are varied or deleted in accordance with subsection (3) or subsection (4), the Authority shall ensure that the controls remain consistent over the whole life cycle of the substance concerned.

(7)

Any restrictions and prohibitions on the sale of fireworks prescribed under section 140(1)(r) shall be in addition to any controls placed on fireworks under this section to control their explosive properties.

(8)

The powers under sections 77A and 77B are in addition to the powers conferred by this section.

Section 77(1): amended, on 2 July 2001, by section 27 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 77(2A): inserted, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 77(8): added, on 22 December 2005, by section 18 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

77A Authority’s power to impose controls and vary specified controls

(1)

The Authority may, at the time it approves a substance for any purpose under this Act, impose as controls under this section any obligations and restrictions that the Authority thinks fit.

(2)

Without limiting anything in subsection (1), the Authority may,—

(a)

in approving a substance, specify as a control under this section an obligation to obtain a permission under section 95A for general or particular use of the substance:

(b)

in approving a substance, specify as a control under this section an obligation to obtain a licence under section 95B for possession of the substance.

(3)

Obligations and restrictions imposed under this section are controls for the purposes of this Act, and such controls may—

(a)

be additional to other specified controls; or

(b)

vary other specified controls; or

(c)

be in substitution for other specified controls; or

(d)

combine other specified controls; or

(e)

delete other specified controls.

(4)

Before imposing a control under this section, the Authority must be satisfied that, against any other specified controls that apply to the substance,—

(a)

the proposed control is more effective in terms of its effect on the management, use, and risks of the substance; or

(b)

the proposed control is more cost-effective in terms of its effect on the management, use, and risks of the substance; or

(c)

the proposed control is more likely to achieve its purpose.

(5)

In this section, other specified controls means controls imposed by or under any other section of this Act, and includes controls imposed by regulations made under this Act.

Section 77A: inserted, on 24 March 2004, by section 5 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

77B Exposure limits for substances with toxic or ecotoxic properties

(1)

Despite anything to the contrary in this Act, the Authority may, at the time, or at any time after, it approves a substance with toxic or ecotoxic properties for any purpose under this Act,—

(a)

set exposure limits for the substance or any element or compound making up the substance that the Authority thinks fit; or

(b)

provide for the setting of exposure limits for the substance or any element or compound making up the substance.

(2)

Exposure limits set under subsection (1) may comprise 1 or more of the following:

(a)

environmental exposure limits:

(b)

tolerable exposure limits:

(c)

workplace exposure standards.

(3)

Without limiting anything in subsection (1), the Authority may—

(a)

provide that all or any of the exposure limits set by it are for guidance only:

(b)

set, or provide for the setting of, exposure limits within a range of values or according to a methodology:

(c)

set, or provide for the setting of, exposure limits by adopting international values or international methodologies.

(4)

Exposure limits imposed under this section are controls for the purposes of this Act, and such exposure limits may—

(a)

be additional to other specified exposure limits; or

(b)

vary other specified exposure limits; or

(c)

substitute other specified exposure limits; or

(d)

combine other specified exposure limits; or

(e)

delete other specified exposure limits.

(5)

Before setting exposure limits under this section, the Authority must—

(a)

consider the best international practices and standards for the safe management of substances with toxic or ecotoxic properties; and

(b)

be satisfied that, against other specified exposure limits that apply to the substance,—

(i)

the proposed exposure limit is more effective in terms of its effect on the management, use, and risks of the substance; or

(ii)

the proposed exposure limit is more cost-effective in terms of its effect on the management, use, and risks of the substance; or

(iii)

the proposed exposure limit is more likely to achieve its purpose; and

(c)

do everything reasonably practicable on its part to advise all people who in its opinion may be affected by the proposed exposure limit; and

(d)

give those people a reasonable opportunity to make submissions and comments to the Authority on the proposed exposure limit; and

(e)

consider all submissions and comments received.

(6)

In this section,—

environmental exposure limit means the limit on the concentration of a substance (or any element or compound making up the substance) with ecotoxic properties in an environmental medium as set in accordance with this section or regulations made under section 75

tolerable exposure limit means the limit on the concentration of a substance (or any element or compound making up the substance) with toxic properties in an environmental medium as set in accordance with this section or regulations made under section 75

workplace exposure standard means the limit on the concentration of a substance (or any element or compound making up the substance) with toxic properties in air set in accordance with this section or regulations made under section 75 for the purpose of protecting persons in a workplace from the adverse effects of toxic substances.

Section 77B: inserted, on 22 December 2005, by section 19 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

78 Codes of practice

(1)

The Authority may from time to time issue, amend, approve, or revoke any code of practice for hazardous substances for the purpose of implementing any requirement included in controls or in regulations in force under this Act.

(2)

Every code of practice, and every amendment or revocation of a code of practice for hazardous substances, shall show the date on which it was issued.

(3)

The Authority may issue, as a code of practice for hazardous substances, any code of practice approved under any other Act.

(4)

The Authority may approve, as a code of practice for hazardous substances, any document prepared by any other person if that document is considered by the Authority as a suitable document for use as a code of practice for hazardous substances.

(5)

A code of practice issued or approved under this Act that is also a code of practice approved under any other Act or a document prepared by another person, consists of the contents of that code or document as that code or document existed on the date that it was approved or issued as a code of practice under this Act.

(6)

The Authority shall not—

(a)

adopt with modification any documents previously approved by a Minister of the Crown (or by the Building Industry Authority established by section 10(1) of the Building Act 1991); or

(b)

approve any amendment of any part of a code of practice that comprises a document approved by a Minister of the Crown (or by the Building Industry Authority) and later adopted by the Authority—

without the written consent of the relevant Minister or the Building Industry Authority.

Section 78(1): substituted, on 2 July 2001, by section 28 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 78(5): substituted, on 7 May 1999, by section 7 of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

79 Codes may be approved by Authority

(1)

A code of practice for hazardous substances, an amendment to such a code, and a revocation of such a code, shall not have any force or effect until it has been approved by the Authority.

(2)

Subject to subsection (3), the Authority shall not approve any code, or any amendment or revocation of a code, unless—

(a)

not less than 20 working days has elapsed since the publication in the Gazette of a notice of the intention to apply for approval; and

(b)

the Authority has consulted such persons as will be affected by the code or amendment or revocation or who have advised the Authority in writing that they wish to be consulted, or representatives of those persons, and they have had the opportunity to consider its possible effects and to comment on those effects to the Authority; and

(c)

the Authority has considered any comments made to it concerning those effects.

(3)

The Authority may approve a code of practice for hazardous substances or any amendment or revocation of that code without complying with the requirements of subsection (2)(a) or (b), if it is satisfied that sufficient consultation has already taken place in respect of the matters in the code, or amendment, or revocation.

(4)

[Repealed]

(5)

When the Authority approves a code of practice for hazardous substances or an amendment or revocation of that code, the Authority shall—

(a)

publish a notice of the approval of the code of practice in the Gazette; and

(b)

show the date of the approval of the code of practice on the code, amendment, or revocation and promulgate it in such manner as the Authority thinks fit.

Section 79(2)(b): amended, on 2 July 2001, by section 29(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 79(4): repealed, on 2 July 2001, by section 29(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

80 Availability of codes

(1)

If the Authority approves a code of practice, the Authority must ensure that, so long as the code remains in force, copies of that code, and of all amendments to that code, are available—

(a)

for inspection by members of the public free of charge; and

(b)

for purchase by members of the public at a reasonable price.

(2)

The notice of approval published in the Gazette pursuant to section 79 shall show, in relation to the code, or the amendment to a code to which it relates, a place or places at which copies of the code or, as the case requires, the amendment, are available for public inspection and purchase.

Section 80(1): substituted, on 2 July 2001, by section 30(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 80(2): amended, on 2 July 2001, by section 30(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

81 Proof of code

Without affecting any other method of proof, the production in any proceedings of a copy of any code of practice for hazardous substances, or amendment or revocation of such a code of practice, purporting to have been approved by the Authority, in the absence of evidence to the contrary, shall be sufficient proof that it has been issued in accordance with this Act.

Test certifiers

82 Issue of test certificates by test certifiers

(1)

Where—

(a)

any regulations made under this Act; or

(aa)

any approval granted by the Authority under this Act; or

(b)

any requirements imposed in accordance with Schedule 3,—

require any person to obtain a test certificate, that person shall obtain the test certificate from a test certifier who has been approved to issue such a test certificate in accordance with sections 83 and 84.

(2)

A test certifier may, if he or she is authorised to issue a test certificate for any prescribed requirement and is satisfied on reasonable grounds that the prescribed requirement has been met, issue a test certificate.

(3)

A test certifier shall not issue any test certificate in respect of any matter if the test certifier is or has been responsible for, or has a financial interest in, the design, planning, or construction of anything relating to the matter.

(4)

Where any test certifier considers, on reasonable grounds that any matter does not comply with the relevant requirement, he or she shall, unless a conditional test certificate is issued under subsection (4A),

(a)

refuse to issue a test certificate; and

(b)

notify the applicant, in writing, with reasons, of the refusal; and

(c)

notify the appropriate enforcement agency unless the test certifier is satisfied that any potential adverse effect from failure to comply with the relevant requirements has been satisfactorily avoided.

(4A)

A test certifier may issue a conditional test certificate for a hazardous substance location if he or she considers, on reasonable grounds, that the failure to meet the relevant requirements for the hazardous substance location is minor and technical in nature.

(4B)

A conditional test certificate must—

(a)

specify the requirements that have not been met; and

(b)

specify the date by which the requirements must be met; and

(c)

state that the certificate expires on the close of the day specified under paragraph (b) if the requirements have not been met by then.

(4C)

A conditional test certificate expires on the close of the day specified under subsection (4B)(b) if the requirements specified under subsection (4B)(a) have not been met by then.

(4D)

In all other respects, a conditional test certificate is a test certificate for the purposes of this Act.

(4E)

In subsection (4A), hazardous substance location has the same meaning as in regulation 3 of the Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001.

(5)

A test certifier must, as soon as practicable after issuing a test certificate under this section, forward a copy of that test certificate to the Authority.

Section 82(1)(aa): inserted, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 82(4): amended, on 20 April 2010, by section 19(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82(4A): inserted, on 20 April 2010, by section 19(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82(4B): inserted, on 20 April 2010, by section 19(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82(4C): inserted, on 20 April 2010, by section 19(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82(4D): inserted, on 20 April 2010, by section 19(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82(4E): inserted, on 20 April 2010, by section 19(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82(5): added, on 22 December 2005, by section 20 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

82A Register of test certificates

(1)

The Authority must keep and maintain a register of test certificates issued by test certifiers under section 82.

(2)

The purpose of the register is to facilitate compliance with, and enforcement of,—

(b)

any regulations or notices in force under those Acts.

(3)

The register must specify—

(a)

the date on which each test certificate was issued, and the expiry date or (if applicable) the date of the revocation of the test certificate; and

(b)

the name of the test certifier who issued the certificate; and

(c)

the matter for which each test certificate has been issued; and

(d)

details of the prescribed requirements for which each test certificate was issued; and

(e)

in the case of a test certificate issued in respect of a place, the street address of the place; and

(f)

in the case of a test certificate issued in respect of a person,—

(i)

the name of the person; and

(ii)

the name and address of the person’s place of work; and

(g)

in the case of a conditional test certificate issued for a hazardous substance location,—

(i)

details of the hazardous substance location; and

(ii)

the relevant requirements for the hazardous substance location that have not been met; and

(iii)

the date by which the requirements must be met.

(4)

A search of the register may be carried out by the Authority, and by the following persons for the following purposes:

(a)

an individual, or a person with the written consent of the individual, for the purpose of searching for information about that individual in accordance with the Privacy Act 1993:

(b)

a test certifier for the purpose of searching for information that the test certifier has provided under section 82(5):

(c)

an approved person for a purpose that—

(i)

relates to the purpose of the register; or

(ii)

is necessary to prevent or lessen a serious and imminent threat to public health, public safety, or the life or health of any person; or

(iii)

is necessary to avoid prejudice to the maintenance of the law (including the prevention, detection, investigation, prosecution, and punishment of offences); or

(iv)

has been authorised by the Privacy Commissioner under section 54(1) of the Privacy Act 1993; or

(v)

is necessary to plan for responses to any emergency (as defined in section 46).

(5)

In this section, approved person means—

(a)

the chief executive of the department that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Agricultural Compounds and Veterinary Medicines Act 1997:

(b)

a person specified in section 97:

(ba)

the chief executive of the New Zealand Fire Service:

(c)

an enforcement officer.

Section 82A: inserted, on 22 December 2005, by section 21 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 82A(3)(f)(ii): amended, on 20 April 2010, by section 20(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82A(3)(g): added, on 20 April 2010, by section 20(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82A(4)(c)(iv): amended, on 20 April 2010, by section 20(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82A(4)(c)(v): added, on 20 April 2010, by section 20(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82A(5)(ba): inserted, on 20 April 2010, by section 20(3) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

82B Delegation by approved person

(1)

An approved person described in section 82A(5)(a), (b), or (ba) may, in writing, delegate to any person the approved person’s power to search the register in accordance with section 82A(4).

(2)

The approved person may delegate the power to search the register on such terms and conditions as the approved person thinks fit.

(3)

Every decision made in accordance with a delegation under subsection (1) must be treated in all respects as though it were a decision of the approved person.

(4)

Every person purporting to act under a delegation under this section is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.

(5)

A delegation under this section is revocable at will and does not prevent the exercise of the power to search the register by the approved person.

(6)

Every delegation under subsection (1) must be available for public inspection at the office of the relevant approved person during ordinary office hours.

Section 82B: inserted, on 22 December 2005, by section 21 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 82B(1): amended, on 20 April 2010, by section 21 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

82C Revocation of test certificates

(1)

The Authority may, at any time and by notice in writing to the person to whom the test certificate was issued (the certificate holder), revoke a test certificate if the Authority is satisfied that the certificate holder—

(a)

obtained the test certificate by fraud, misrepresentation, or concealment of facts; or

(b)

has been negligent as a certificate holder; or

(c)

is incompetent to act as a certificate holder; or

(d)

has not met, or continued to meet, any requirement for which the test certificate was issued.

(2)

The Authority may not revoke a test certificate under subsection (1) unless the Authority—

(a)

has notified the certificate holder in writing of its intention to investigate whether to revoke the test certificate; and

(b)

has given the certificate holder reasons in writing for the Authority’s investigation; and

(c)

has given the certificate holder a reasonable opportunity to make submissions to the Authority in respect of the investigation; and

(d)

has considered all submissions and any other information received; and

(e)

is, as a result of the investigation, satisfied that there are grounds for revoking the test certificate under subsection (1).

(3)

The Authority may seek, receive, or take into account any other information or evidence that the Authority considers relevant for the purposes of this section.

(4)

If the Authority proposes to take into account any information that is or may be prejudicial to the certificate holder, the Authority must, subject to subsection (5), disclose that information to the certificate holder and give him or her a reasonable opportunity to refute or comment on the information.

(5)

The Authority is not required to disclose any information under subsection (4) that would be likely to endanger the safety of any person.

(6)

If the Authority determines not to disclose any information in reliance on subsection (5), the Authority must inform the certificate holder of the fact of non-disclosure, and the following provisions apply:

(a)

in the case of non-disclosure to an individual of information about the individual,—

(i)

the Authority must inform the individual that he or she may, under the Privacy Act 1993, complain to the Privacy Commissioner about that non-disclosure; and

(ii)

the provisions of that Act apply to that non-disclosure as if, following a request under that Act for the information withheld, the information had been withheld under section 27(1)(d) of that Act; and

(b)

in any other case,—

(i)

the Authority must inform the person that the person may seek a review by an Ombudsman of that non-disclosure under the Official Information Act 1982; and

(ii)

the provisions of that Act apply to that non-disclosure as if, following a request under that Act for the information withheld, the information had been withheld under section 6(d) of that Act.

(7)

On completion of the Authority’s investigation, the Authority must notify the certificate holder in writing of—

(a)

the Authority’s decision; and

(b)

the certificate holder’s right of appeal against that decision.

(8)

A test certificate that is revoked under this section is deemed to have expired on the date on which the test certificate was revoked.

(9)

[Repealed]

Section 82C: inserted, on 22 December 2005, by section 21 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 82C heading: amended, on 20 April 2010, by section 22(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82C(1): amended, on 20 April 2010, by section 22(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82C(1)(c): amended, on 20 April 2010, by section 22(3) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82C(1)(d): added, on 20 April 2010, by section 22(3) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 82C(9): repealed, on 20 April 2010, by section 22(4) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

83 Applications for approval as test certifier

(1)

Any person may apply to the Authority for approval as a test certifier.

(2)

Every application shall be in the form specified or provided by the Authority and shall specify the requirements in respect of which the applicant wishes to be approved as a test certifier.

(3)

Except as provided by subsection (4), each application shall include—

(a)

information that will enable the Authority to decide whether or not the applicant has appropriate qualifications, sufficient knowledge of the relevant requirement, and appropriate equipment to test for the relevant requirements, and, if so,—

(i)

the specific requirements in respect of which the applicant should be approved; and

(ii)

any limitations which should be placed on the approval:

(b)

where required by the Authority, evidence that a scheme of insurance, approved by the Authority, will apply in respect of any insurable civil liability of the applicant that might arise out of the issuing by the applicant of a test certificate under this Act or any regulations.

(4)

In the case of an applicant who is or has been a test certifier and who is applying for continuation or renewal of approval in respect of the same requirements, the application need not be accompanied by the documentation required by subsection (3)(a), but instead shall be accompanied by—

(a)

a list of any additional qualifications that the applicant has acquired since that person’s previous application; and

(b)

a request for any changes to any limitations imposed on the previous approval, with reasons for the request; and

(c)

in the case of an application for renewal, reasons why the approval lapsed.

84 Processing applications for approval as test certifier

(1)

The Authority may require the applicant for approval as a test certifier to provide further information in support of the application.

(2)

If the applicant is unable to comply with any requirement of the Authority under subsection (1), the applicant shall inform the Authority of the reasons why the applicant is unable to comply.

(3)

The application shall be considered by the Authority within 20 working days of receipt of all information required under subsection (1) or notification by the applicant under subsection (2) that he or she is unable to comply with a request for further information.

(4)

The Authority shall notify the applicant not less than 10 days before any meeting at which it is intended to consider the application. The applicant may, and if the Authority so requires, the applicant shall appear and be heard at that meeting of the Authority.

(5)

After considering an application for approval as a test certifier the Authority shall grant the approval if it is satisfied—

(a)

that the applicant has—

(i)

the prescribed qualifications; and

(ii)

sufficient knowledge of the relevant requirements; and

(iii)

complied with any other prescribed conditions; and

(b)

where required by the Authority, that a scheme of insurance approved by the Authority will apply in respect of any insurable civil liability of the applicant that might arise out of the issuing by the applicant of a test certificate under this Act or any regulations, except in respect of a test certificate issued by a territorial authority.

(6)

If the Authority declines an application it shall notify the applicant in writing specifying the reasons.

(7)

An approval expires on the earlier of the following dates:

(a)

5 years after the date on which it is given:

(b)

the date of expiry (if any) specified by the Authority in the approval.

Section 84(7): substituted, on 2 July 2001, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

85 Register of test certifiers

(1)

The Authority shall establish and maintain a register of test certifiers.

(2)

Whenever the Authority approves a person as a test certifier, it shall enter on the register—

(a)

the date of approval; and

(b)

the name and address of the person approved; and

(c)

the specific requirements in respect of, or in connection with which, the person may issue test certificates; and

(d)

any limitation on the matters in respect of which the person may issue test certificates; and

(e)

the date of expiry of the approval; and

(f)

such other matters relating to the approval as the Authority directs.

(3)

A test certificate purporting to be under the hand of a person duly authorised by the Authority to issue such a certificate shall, in the absence of proof to the contrary, and without proof of the signature appended to the certificate, be sufficient evidence of the matters specified in the certificate.

(4)

Every person shall have the right to inspect the register during the ordinary office hours of the Authority.

86 Complaints to Authority

(1)

If the Authority receives any complaint about, or has cause to query the conduct or ability of, a test certifier, the Authority may investigate the complaint or query and, if it considers the complaint or query to be justified, may amend or cancel the approval.

(2)

The Authority may, if it thinks fit, after the receipt of any complaint or query, suspend all or any part of the approval given under section 84 until the investigation under subsection (1) is complete.

Transferable permits

87 Establishment of transferable permit scheme

(1)

Subject to section 141, the Governor-General may from time to time, by Order in Council, make regulations establishing a transferable permit scheme for any hazardous substance or group of hazardous substances.

(2)

Regulations made under subsection (1) may include the following matters:

(a)

the amount of substance available for importation or manufacture in any specified period of time or a method for determining that amount:

(b)

the method of allocating, reallocating, reducing, increasing, or cancelling any transferable permits:

(c)

the period for which any transferable permit will be valid:

(d)

any limitations upon the transfer of permits:

(e)

any scheme monitoring requirements, including any reporting requirements imposed on holders of permits.

(3)

Any method specified in accordance with subsection (2)(b) shall first allocate transferable permits to persons importing or manufacturing the substance immediately prior to the establishment of the transferable permit scheme.

(4)

Any method specified in accordance with subsection (2)(a) may provide for the amount of a substance to be reduced or increased over a specified period of time.

(5)

Where any regulations made under this section specify a method for reducing the amount of substance available for importation or manufacture, no compensation shall be payable in respect of any such reduction.

88 Authority to recommend establishment

The Authority may recommend to the Minister that a transferable permit scheme be established, amended, or revoked for any hazardous substances or group of hazardous substances, in accordance with section 87, where the Authority is satisfied—

(a)

that a reduction in the likely occurrence of adverse effects similar to that achieved by the controls attached to any substance in accordance with sections 77, 77A, and 77B could be achieved by—

(i)

any transferable permit scheme; or

(ii)

any combination of a transferable permit scheme and controls prescribed in accordance with sections 75 and 76; and

(b)

that such a scheme will be cost effective to implement, having regard to the costs associated with the transferable permit scheme, including the costs of monitoring and the costs of alternative methods of controls, and the benefits provided from the ability to transfer permits.

Section 88(a): amended, on 22 December 2005, by section 22 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

89 Transferable permit scheme and variation of controls

(1)

Where any transferable permit scheme is established for any hazardous substance in accordance with section 87, the Authority may substitute or delete any controls attached to that substance if the combination of controls and transferable permit scheme reduce the likely adverse effects of that substance to a level similar to that achieved by the controls attached to that substance in accordance with sections 77, 77A, and 77B.

(2)

Any substitution or deletion of controls on any substance in accordance with subsection (1) shall remain in force so long as the transferable permit scheme in place at the time of the substitution or deletion of controls remains the same.

Section 89(1): amended, on 22 December 2005, by section 23 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

90 Transfer of permits

(1)

Any person who has been granted a transferable permit in accordance with any scheme established under section 87 may transfer that permit or any part of it to any other person.

(2)

The transferor, within 20 working days after making any such transfer, shall notify the Authority in writing of the transfer, the amount transferred, and the name and address of the transferee, and return the permit for reissuing.

(3)

No transfer shall be valid unless the Authority is notified in accordance with subsection (2).

91 Contents of transferable permits

Every transferable permit shall specify—

(a)

the substance in respect of which it is issued; and

(b)

the dates of issue and expiry of the permit; and

(c)

the amount of the substance which the permit holder is permitted to import or manufacture under the permit; and

(d)

any other controls on the importation or manufacture of substances as the Authority thinks fit.

92 Modification of permits

The Authority may modify any permit to correct any clerical error or omission.

93 Registration of scheme

(1)

Before commencing any transferable permit scheme, the Authority shall establish a register for each scheme.

(2)

The Authority shall include in the register—

(a)

the details of every permit issued; and

(b)

the details of every transfer of the whole or any part of a transferable permit.

(3)

The register shall be available for inspection upon request to any person.

(4)

An entry in the register, in the absence of evidence to the contrary, shall be sufficient proof that the person named in the register is the holder of the transferable permit to which the entry relates.

94 Transferable permit not to be mortgaged

Any contract or other instrument purporting to create any interest in any transferable permit for the purpose of securing the payment of a debt or other pecuniary obligation, or for the performance of any other obligation, is void.

95 Prohibition on import or manufacture until transferable permit obtained

Where a transferable permit scheme exists for a substance,—

(a)

no person shall manufacture or import that hazardous substance unless any relevant transferable permit has been obtained for the amount of substance being manufactured or imported; and

(b)

any Customs officer may permit the importation of any hazardous substance upon production by the importer of a relevant transferable permit for the amount of substance being imported.

Permissions and licences

Heading: inserted, on 24 March 2004, by section 6 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

95A Permissions

(1)

This section applies if the Authority approves a substance subject to an obligation referred to in section 77A(2)(a) (namely that, before using the substance, a person must obtain a prior permission under this section for the general or particular use of the substance).

(2)

An application for a permission under this section must be made in a form approved by the Authority, and must be accompanied by the appropriate charge (if any) fixed under section 21.

(3)

In considering an application, the Authority must consider—

(a)

the adverse effects involved in the use or uses of the substance to which the application relates; and

(b)

the conditions (if any) that it thinks should be imposed as part of the permission.

(4)

The Authority may grant a permission subject to any conditions it may specify in the permission that are consistent with the approval of the substance.

(5)

The holder of a permission granted under this section is authorised to use the substance specified in the permission in accordance with the approval of the substance and the holder’s permission.

(6)

A permission granted under this section must be in writing and in a form approved by the Authority.

(7)

The Authority may, at any time by notice in writing to the holder of a permission granted under this section,—

(a)

add or delete any conditions, or otherwise vary any conditions:

(b)

revoke a permission granted to the holder under this section.

Section 95A: inserted, on 24 March 2004, by section 6 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

95B Licences

(1)

This section applies if the Authority approves a substance subject to an obligation referred to in section 77A(2)(b) (namely, that a person must obtain a licence under this section before possessing the substance).

(2)

An application for a licence under this section must—

(a)

be made in a form prescribed by regulations referred to in subsection (4) or (in the absence of such regulations) in a form determined by the Authority; and

(b)

be accompanied by the appropriate charge (if any) fixed under section 21.

(3)

The Authority—

(a)

must grant a licence under this section if satisfied that the applicant—

(i)

is a fit and proper person to possess the substance concerned; and

(ii)

meets the relevant test certification requirements that apply to the substance under section 82; and

(b)

may make the licence subject to any conditions it may specify in the licence.

(4)

Regulations made under section 76 or section 140, or both, may (without limitation)—

(a)

specify the criteria the Authority must consider in determining whether the applicant is a fit and proper person:

(b)

specify any other matters that the Authority may consider in determining whether to grant a licence under this section:

(c)

prescribe the form of an application for a licence under this section:

(d)

provide for the variation of licences under this section and provide for their revocation:

(e)

provide for any other matters necessary for the administration of licences under this section.

(5)

The holder of a licence granted under this section is authorised to possess the substance specified in the licence in accordance with the approval of the substance and the holder’s licence.

Section 95B: inserted, on 24 March 2004, by section 6 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Environmental user charges

96 Report on environmental user charges

(1)

Where the Authority considers that a reduction in the likely occurrence of adverse effects similar to that achieved by the controls attached to any substance in accordance with sections 77, 77A, and 77B could be achieved by—

(a)

any environmental user charge; or

(b)

any combination of an environmental user charge and controls prescribed in accordance with section 75 or section 76,—

the Authority may report to the Minister on such a charge or any combination of such controls and an environmental user charge.

(2)

Before preparing any report in accordance with subsection (1), the Authority shall satisfy itself that any environmental user charge would be cost effective to implement having regard to the costs associated with the environmental user charge, including the costs of monitoring and the costs of alternative methods of control.

(3)

Any report to the Minister made in accordance with subsection (1) may include any other matters relevant to any environmental user charge, including a report on—

(a)

the time of commencement of any environmental user charge; and

(b)

the duration of any environmental user charge; and

(c)

any matters relevant to the implementation of environmental user charges; and

(d)

use of the revenue from environmental user charges; and

(e)

any procedure for adjusting or removing any controls already imposed upon a substance at the time of imposition of the environmental user charge; and

(f)

any procedure for adjusting or removing any combination of controls and environmental user charge or an environmental user charge, after a reassessment of the substance under section 62.

Section 96(1): amended, on 22 December 2005, by section 24 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Part 6A Group standards

Part 6A: inserted, on 22 December 2005, by section 25 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

96A Purpose of Part

The purpose of this Part is to enable the Authority to issue, amend, and revoke standards (known as group standards) for groups of hazardous substances (whether these are subject to Part 5 or not) that have a similar nature, are of a similar type, or have similar circumstances of use, so that the risks of the grouped hazardous substances can be effectively managed by 1 set of conditions.

Section 96A: inserted, on 22 December 2005, by section 25 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

96B Group standards

(1)

The Authority may, by notice in the Gazette, issue group standards that—

(a)

identify the group of hazardous substances or products (described in subsection (2)) concerned; and

(b)

impose as conditions under this section any obligations and restrictions that the Authority thinks fit on the identified group of hazardous substances or products.

(2)

A group standard may apply to 1 or more of the following hazardous substances or products:

(a)

a hazardous substance to which Part 5 applies:

(b)

a hazardous substance to which Parts 11 to 15 apply:

(c)

a hazardous substance to which a notice or regulation under Part 11 applies, or a hazardous substance that has been approved under Part 5:

(d)

a product (including, but not limited to, a manufactured article, a waste product, or a manufacturing by-product) that is, contains, incorporates, or includes a hazardous substance.

(3)

The Authority may, by notice in the Gazette, amend or revoke group standards that are issued under subsection (1).

(4)

The Authority may issue, amend, or revoke group standards under this section—

(a)

on its own initiative; or

(b)

on application by any person.

(5)

A notice issued under this section 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.

(6)

As soon as practicable after issuing, amending, or revoking a group standard, the Authority must do the following:

(a)

publish the group standard, amendment, or revocation in a publication relevant to affected persons; and

(b)

make the group standard, amendment, or revocation available to be inspected free of charge and purchased at a reasonable price; and

(c)

give public notice of where the group standard, amendment, or revocation can be inspected or purchased.

Section 96B: inserted, on 22 December 2005, by section 25 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 96B(5): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

96C When group standards may be issued or amended

(1)

Before issuing or amending group standards under section 96B, the Authority must,—

(a)

in the case of any hazardous substance to which section 96B(2)(a) applies, be satisfied that issuing or amending (as the case may be) group standards is a more efficient and effective way of managing the risks of all the hazardous substances in the identified group than the approval process under Part 5; and

(b)

in the case of any hazardous substance to which section 96B(2)(b) applies, be satisfied that issuing or amending (as the case may be) group standards is a more efficient and effective way of managing the risks of all the hazardous substances in the identified group; and

(c)

in the case of any hazardous substance to which section 96B(2)(c) applies, be satisfied that issuing or amending (as the case may be) group standards is a more efficient and effective way of managing the risks of all the hazardous substances in the identified group; and

(d)

in the case of any product to which section 96B(2)(d) applies, be satisfied that—

(i)

the benefits associated with a reduction of environmental and health risks outweigh the economic costs associated with complying with the group standard; and

(ii)

the issuing or amending (as the case may be) of group standards is the most efficient and effective way of managing the risks of all the products in the identified group, having considered matters including alternative methods of managing those risks; and

(iii)

the group standard is only applied to the extent that it is reasonably necessary to manage the risks of the products; and

(e)

where a group standard applies—

(i)

to 1 hazardous substance or product (described in section 96B(2)), be satisfied that the risks of the hazardous substance or product can be effectively managed by one set of conditions; or

(ii)

to more than 1 hazardous substance or product (described in section 96B(2)), be satisfied that all the hazardous substances or products in the identified group have a similar nature, are of a similar type, or have similar circumstances of use, such that the risks of the group of hazardous substances or products can be effectively managed by 1 set of conditions; and

(f)

consider the best international practices and standards for the safe management of hazardous substances and products (described in section 96B(2)); and

(g)

consider the types of EPA controls appropriate for the group in accordance with sections 77, 77A, and 77B; and

(h)

comply with the requirements of section 53(1A) (which relates to public notification).

(2)

Where the Authority proposes to issue, amend, or revoke group standards on its own initiative, sections 53 to 61 apply, with all necessary modifications, for the purposes of this section, as if the proposal were an application.

(3)

However, the Authority may, on its own initiative, amend a group standard under section 96B without complying with subsections (1) and (2) of this section or section 53(1A), if it considers that the amendment is minor in effect or corrects a minor or technical error.

Section 96C: inserted, on 22 December 2005, by section 25 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 96C(1)(g): amended, on 5 September 2015, by section 35(1) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 96C(1)(h): replaced, on 5 September 2015, by section 35(2) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 96C(3): added, on 20 April 2010, by section 23 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 96C(3): amended, on 5 September 2015, by section 35(3) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

96D Revocation of group standards

(1)

Before revoking group standards under section 96B, the Authority must publicly notify its proposal to revoke group standards in accordance with section 53(1A).

(2)

Sections 54 to 61 apply, with all necessary modifications, for the purposes of this section.

Section 96D: inserted, on 22 December 2005, by section 25 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 96D(1): amended, on 5 September 2015, by section 36 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

96E Effect of group standards

(1)

If a group standard applies to a hazardous substance or product, the substance or product must comply with the group standard.

(2)

However, in the case of a hazardous substance, if the hazardous substance also has an approval given under this Act, the substance may instead comply with the approval.

(3)

A hazardous substance to which section 96B(2)(a) applies is deemed to have been approved by the Authority under section 29.

Section 96E: inserted, on 22 December 2005, by section 25 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

96F Hazardous substances in group standards if Parts 11 to 15 apply

If Parts 11 to 15 apply to a hazardous substance and a group standard is made under section 96B that applies to the substance,—

(a)

Parts 11 to 15 do not apply to that hazardous substance on and from the date on which the group standard comes into force; and

(b)

the hazardous substance is deemed to have been approved by the Authority on the date that the group standard comes into force.

Section 96F: inserted, on 22 December 2005, by section 25 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Part 7 Inspection, enforcement, and ancillary powers

Inspection

97 Enforcement of Act

(1)

The following persons shall ensure the provisions of this Act (including any controls imposed on approvals granted under this Act) are enforced in the following situations:

(a)

WorkSafe must ensure that the provisions of this Act are enforced in any place of work:

(b)

WorkSafe must ensure that the provisions of this Act are enforced in, on, at, or around any distribution system, gas installation, or gas appliance:

(c)

the New Zealand Transport Agency may enforce the provisions of this Act in or on any motor vehicle, on any road, in or on any rail vehicle, or on any railway line:

(d)

the Commissioner of Police (after consultation with the New Zealand Transport Agency) shall ensure that the provisions of this Act are enforced in or on any motor vehicle, on any road, in or on any rail vehicle, or on any railway line:

(e)

the Director of the Civil Aviation Authority shall ensure that the provisions of this Act are enforced in or on any aircraft:

(f)

the Director of Maritime New Zealand shall ensure that the provisions of this Act are enforced in or on any ship:

(g)

the chief executive of the Ministry of Health shall ensure that the provisions of this Act are enforced where it is necessary to protect public health:

(h)

the chief executive of any territorial authority—

(i)

shall ensure that the provisions of this Act are enforced in or on any premises situated in the district of the territorial authority other than those premises specified in paragraphs (a) to (g):

(ii)

may enforce the provisions of this Act in or on those premises specified in paragraphs (a) to (g) where the territorial authority is in or on those premises for the purposes of enforcing the provisions of the Resource Management Act 1991:

(iii)

shall ensure that the provisions of this Act are enforced in or on those premises specified in paragraphs (a) to (g), where the function, power, or duty is transferred to the territorial authority in accordance with section 98.

(iv)
[Repealed]

(2)

The chief executive of a regional council may—

(a)

enforce the provisions of this Act in or on those premises specified in subsection (1)(a) to (g) if the regional council is in or on those premises for the purposes of enforcing the provisions of the Resource Management Act 1991:

(b)

enforce the provisions of this Act in or on those premises specified in subsection (1)(a) to (g) if the function, power, or duty is transferred to the regional council in accordance with section 98.

Section 97(1): amended, on 30 October 2003, by section 44 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 97(1)(a): replaced, on 16 December 2013, by section 22 of the WorkSafe New Zealand Act 2013 (2013 No 94).

Section 97(1)(b): replaced, on 16 December 2013, by section 22 of the WorkSafe New Zealand Act 2013 (2013 No 94).

Section 97(1)(c): amended, on 1 August 2008, by section 50(1) of the Land Transport Management Amendment Act 2008 (2008 No 47).

Section 97(1)(c): amended, on 20 July 2005, by section 103(3) of the Railways Act 2005 (2005 No 37).

Section 97(1)(d): amended, on 1 August 2008, by section 50(1) of the Land Transport Management Amendment Act 2008 (2008 No 47).

Section 97(1)(d): amended, on 20 July 2005, by section 103(3) of the Railways Act 2005 (2005 No 37).

Section 97(1)(e): amended, on 20 April 2010, by section 24 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 97(1)(f): amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 97(1)(h)(iii): amended, on 22 December 2005, by section 27(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 97(1)(h)(iv): repealed, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 97(2): added, on 22 December 2005, by section 27(2) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

97A Enforcement of Act in respect of new organisms

(1)

The enforcement agency must ensure that the provisions of this Act are enforced in respect of new organisms.

(2)

For the purpose of complying with subsection (1), the enforcement agency may appoint enforcement officers in accordance with this Act who may exercise also the powers of inspectors under the Biosecurity Act 1993 that may be exercised in respect of an unwanted organism, and the provisions of that Act apply with all necessary modifications.

(3)

A person who may exercise powers under the Biosecurity Act 1993 in respect of unwanted organisms may also exercise those powers under that Act in respect of new organisms whether or not the person is appointed as an enforcement officer under this Act.

(4)

Without limiting subsection (2), the provisions of the Biosecurity Act 1993 that apply, with all necessary modifications, for the purposes of this section include sections 162A, 163, and 164 of that Act.

(4A)

The enforcement agency’s costs of enforcing this Act in respect of new organisms are to be treated as if they were costs of administering the Biosecurity Act 1993, and—

(a)

may be recovered in accordance with section 135 of that Act; and

(b)

may be funded by a levy imposed under section 137 of that Act; and

(c)

may be prescribed, in regulations made under section 165(1)(s) of that Act, as costs that are recoverable.

(5)

In this section,—

enforcement agency means the chief executive of the department of State responsible for the administration of the Biosecurity Act 1993

unwanted organism has the same meaning as in section 2(1) of the Biosecurity Act 1993.

Section 97A: inserted, on 30 October 2003, by section 45 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 97A(4A): inserted, on 20 April 2010, by section 25 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

97AA Border information supplied using JBMS must be supplied in approved form and manner

(1)

This section applies to a requirement by or under this Act to supply any border information to the Ministry (for example, to the chief executive of the department of State responsible for the administration of the Biosecurity Act 1993 in enforcing this Act in respect of new organisms).

(2)

Any person who uses the JBMS (Joint Border Management System) 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 of the Biosecurity Act 1993) 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 by the chief executive of the department of State responsible for the administration of the Biosecurity Act 1993.

(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.

(4)

Border information, JBMS, and Ministry have, in this section, the meanings given or referred to in section 41A(1) of the Biosecurity Act 1993.

Section 97AA: inserted, on 24 June 2014, by section 16 of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

97AB Duty to use JBMS to supply border information

(1)

This section applies to a requirement by or under this Act to supply any border information to the Ministry (for example, to the chief executive of the department of State responsible for the administration of the Biosecurity Act 1993 in enforcing this Act in respect of new organisms).

(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; or

(b)

by using another means for the time being generally or specifically approved in writing by the responsible person.

(3)

Border information, JBMS, and Ministry have, in this section, the meanings given or referred to in section 41A(1) of the Biosecurity Act 1993, and responsible person means, in this section, the person (whether described as the enforcement agency or otherwise) who under sections 97 to 97B of this Act is responsible for enforcement of the requirement.

Section 97AB: inserted, on 1 July 2016, by section 18(4) of the Biosecurity (Border Processing—Trade Single Window) Amendment Act 2014 (2014 No 11).

97B Enforcement of Act in respect of hazardous substances in place of work

(1)

The enforcement agency must ensure that the provisions of this Act are enforced in respect of hazardous substances in a place of work.

(2)

For the purpose of complying with subsection (1), the enforcement agency may appoint enforcement officers in accordance with this Act who may exercise the powers of inspectors under the Health and Safety in Employment Act 1992, and the provisions of that Act apply with all necessary modifications.

(3)

In this section,—

enforcement agency

(a)

means WorkSafe:

(b)

includes, in relation to a particular industry, sector, or type of work, the chief executive of an agency designated under section 28B(1) of that Act to administer that Act for the particular industry, sector, or type of work

inspector and place of work have the same meanings as in section 2(1) of the Health and Safety in Employment Act 1992.

Section 97B: inserted, on 22 December 2005, by section 28 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 97B(3) enforcement agency: replaced, on 20 April 2010, by section 26 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 97B(3) enforcement agency paragraph (a): replaced, on 16 December 2013, by section 22 of the WorkSafe New Zealand Act 2013 (2013 No 94).

98 Co-ordination of inspection

(1)

Any person specified in section 97 or section 97A may,—

(a)

appoint enforcement officers in accordance with section 100 to enforce the provisions of this Act; or

(b)

transfer the power to enforce the provisions of this Act in their area in accordance with subsections (2) to (7).

(2)

Any person who appoints any enforcement officers in accordance with subsection (1) shall, each year, no later than 1 month before the commencement of the Authority’s financial year, notify the Authority of the premises where that person will appoint enforcement officers in accordance with section 100 and the nature and level of inspection and enforcement to be provided by those enforcement officers.

(3)

Any person who has functions, powers, or duties under section 97 or section 97A may transfer all or any part of those functions, powers, or duties to another person specified in section 97 or section 97A, except that he or she may not transfer this power of transfer.

(4)

[Repealed]

(5)

A person may not transfer any function, power, or duty under this section unless—

(a)

the person has first—

(i)

notified the Authority in accordance with subsection (2); and

(ii)

notified the Authority where that person proposes to transfer the function to enforce the provisions of this Act to another person; and

(iii)

has received the approval of the Authority to the transfer in the case of a transfer between territorial authorities or the approval of the relevant Ministers to the transfer in the case of a transfer between other persons; and

(b)

both persons agree that the transfer is desirable on any of the following grounds:

(i)

to ensure sufficient enforcement of this Act and to ensure that there is not unnecessary duplication of enforcement:

(ii)

efficiency:

(iii)

technical or special capability or expertise.

(6)

A transfer of functions, powers, or duties under this section shall be made by agreement between the authorities concerned and on such terms and conditions as are agreed.

(7)

A person to whom any function, power, or duty is transferred under this section may accept such transfer unless expressly forbidden to do so by the terms of any Act by or under which that person is appointed; and upon any such transfer, that person’s functions, powers, and duties shall be deemed to be extended in such manner as may be necessary to enable the person to undertake, exercise, and perform the function, power, or duty.

(8)

Any transfer of any function, power, or duty under this section may be changed or revoked at any time by agreement between the transferee and transferor and upon notice to the Authority.

Section 98(1): amended, on 30 October 2003, by section 46 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 98(3): amended, on 30 October 2003, by section 46 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 98(4): repealed, on 2 July 2001, by section 32 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

98A Chief executives of Ministry and Authority to have functions, powers, duties, and protections of enforcement officers

(1)

For the purposes of this Act, a chief executive has the same functions, powers, duties, and protections that enforcement officers have under this Act.

(2)

In subsection (1), chief executive means—

(a)

the chief executive of the department of State responsible for the administration of this Act:

(b)

the chief executive of the Authority.

Section 98A: inserted, on 30 October 2003, by section 47 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

99 Supervision of inspection

(1)

The Authority shall ensure that the provisions of this Act are enforced in all premises likely to contain a hazardous substance or new organism and shall advise the persons specified in section 97 or section 97A and the Minister when the Authority considers that there is insufficient or unnecessary inspection and enforcement.

(2)

The Authority shall record all notifications made by persons in accordance with section 98.

(3)

The Authority may from time to time, as the Authority thinks fit,—

(a)

appoint enforcement officers to enforce the provisions of this Act in such premises as the Authority thinks fit:

(b)

authorise the chief executive of—

(i)

any department specified in Schedule 1 of the State Sector Act 1988:

(ii)

any Crown entity:

(iii)

any local authority—

to appoint enforcement officers to enforce the provisions of this Act in or on any premises specified by the Authority.

(4)

In this section, hazardous substance includes compressed gases, whether intrinsically hazardous or not.

Section 99(1): amended, on 30 October 2003, by section 48 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 99(3)(b)(ii): amended, on 25 January 2005, by section 37(1) of the Public Finance Amendment Act 2004 (2004 No 113).

Section 99(4): added, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

100 Appointment of enforcement officers

(1)

No person shall be appointed as an enforcement officer unless that person has the prescribed qualifications to carry out the powers, functions, and duties specified in the officer’s warrant of appointment.

(2)

Any person who appoints any person other than an employee as an enforcement officer shall remain liable in every respect for the actions of that officer, while he or she is acting as such, as if that person were an employee of the appointer.

(3)

Every person who appoints an enforcement officer shall supply each officer with a warrant specifying the functions that the officer may carry out, and any such warrant may at any time be revoked by the person who issued it or by any successor in office of that person.

(4)

Where the chief executive of a territorial authority appoints an enforcement officer in accordance with this section, the chief executive may designate that officer as a district hazardous substances officer.

101 Duty of territorial authorities

(1)

If the Minister considers that any territorial authority is not exercising or performing any of its functions, powers, or duties under this Act to the extent that the Minister considers necessary to achieve the purposes of this Act, the Minister shall consult with the Minister of Local Government and may appoint, on such terms and conditions as the Minister thinks fit, the Authority to exercise or perform all or any of those functions, powers, or duties in place of the territorial authority.

(2)

Before making any appointment under subsection (1), the Minister shall give the territorial authority at least 20 working days’ notice in writing of the Minister’s intention to do so, specifying the reasons why the Minister considers such an appointment is necessary.

(3)

The notice shall invite the territorial authority to give to the Minister, within such period (being not less than 20 working days after the date of the notice) as may be specified in the notice, such written comments as the territorial authority wishes to make about any steps that the territorial authority is taking, or is intending to take, that may obviate the need for an appointment, and the Minister shall consider those comments and the need for making an appointment before making an appointment.

(4)

The Authority, if appointed under subsection (1) to exercise or perform the functions, powers, or duties of a territorial authority under this Act, may do so as if it were the territorial authority; and the provisions of this Act shall apply accordingly.

(5)

All costs, charges, and expenses incurred by the Authority for the purposes of this section, in exercising or performing any functions, powers, or duties of a territorial authority under this Act, shall be recoverable from the territorial authority as a debt due to the Authority or may be deducted from any money payable to the territorial authority by the Authority.

(6)

In making any such appointment, the Minister shall specify the period for which the appointment is made, and it may from time to time be renewed.

(7)

Any appointment of the Authority under this section may be revoked at any time by the Minister.

(8)

In determining whether any appointment under this section should be renewed or whether a new appointment should be made, the Minister shall consider whether the territorial authority is capable of exercising its powers, functions, and duties under this Act, and, if the Minister considers the territorial authority is so capable, the territorial authority shall be directed by the Minister to resume those powers, functions, and duties.

102 Building Act 2004

(1)

Where an enforcement officer believes that any building or sitework does not comply with the Building Act 2004, the enforcement officer shall, by notice in writing, give to the appropriate territorial authority details of the respects in which the building or sitework is believed not to comply.

(2)

For the purposes of this section, the terms building, sitework, and territorial authority have the meanings ascribed to them by the Building Act 2004.

Section 102 heading: substituted, on 31 March 2005, pursuant to section 414 of the Building Act 2004 (2004 No 72).

Section 102(1): amended, on 31 March 2005, by section 414 of the Building Act 2004 (2004 No 72).

Section 102(2): amended, on 31 March 2005, by section 414 of the Building Act 2004 (2004 No 72).

103 Powers of entry for inspection

(1)

Any enforcement officer may, at any reasonable time,—

(a)

go on, into, under, and over any premises (excluding dwellings); or

(b)

with the consent of the occupier, go on, into, under, and over a dwelling—

for the purpose of inspection to—

(c)

monitor compliance with the conditions or controls on any hazardous substance or new organism in any premises where a hazardous substance or new organism approved under this Act is located; or

(d)

determine the nature of any substance or organism in the premises; or

(e)

determine whether or not any person is complying with a compliance order.

(2)

For the purposes of subsection (1), an enforcement officer may—

(a)

take samples of water, air, soil, any substance, or any organism; and

(b)

open containers or packages (including secured or sealed containers or packages) to inspect the contents; and

(c)

take photographs and measurements and make sketches and recordings; and

(d)

take or remove any thing for analysis or testing; and

(e)

conduct examinations, tests, inquiries, demonstrations, and inspections; and

(ea)

require that any place or thing specified by the enforcement officer is not disturbed for a reasonable time pending any examination, test, inquiry, demonstration, or inspection; and

(eb)

require the making of statements by the person in charge of the premises, in any form or manner specified by the enforcement officer, about conditions, material, or equipment relevant to the purpose of the inspection; and

(f)

require the production of any documents relevant to the purpose of the inspection; and

(g)

take copies of the documents or information or extracts from those documents or information.

(3)

Where any enforcement officer has taken any thing in accordance with subsection (2)(d), the enforcement officer shall give the occupier of the premises written notice of the things that have been taken, the reason for taking the things, and where the things will be kept.

(4)

Within 5 working days of removing the thing the enforcement officer shall give the person in charge of the premises written notice stating—

(a)

whether or not the thing will be returned or destroyed; and

(b)

either—

(i)

the time and date of the return of the thing to the premises; or

(ii)

the results of the analysis of the thing and why it is being destroyed.

(5)

Every enforcement officer exercising any of the powers conferred under this section shall, at the time of exercising that power, and thereafter on request, produce—

(a)

evidence of that person’s appointment as an enforcement officer; and

(b)

evidence of that person’s identity.

(6)

An enforcement officer may take any person with relevant experience or expertise on to the premises to assist the officer with the inspection.

(7)

Nothing in this section shall limit or affect the privilege against self-incrimination.

Section 103(1)(a): amended, on 31 December 2000, by section 33(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 103(1)(c): amended, on 30 October 2003, by section 49 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 103(2)(c): substituted, on 31 December 2000, by section 33(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 103(2)(ea): inserted, on 31 December 2000, by section 33(3) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 103(2)(eb): inserted, on 31 December 2000, by section 33(3) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 103(6): substituted, on 31 December 2000, by section 33(4) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Compliance orders

104 Scope of compliance order

(1)

A compliance order may be served on any person by an enforcement officer—

(a)

requiring that person to cease, or prohibiting that person from commencing, anything done or to be done by or on behalf of that person that, in the opinion of the enforcement officer,—

(i)

contravenes or is likely to contravene this Act, any regulations, or a control imposed by an approval under this Act; or

(ii)

relates to any hazardous substance or new organism and is or is likely to be dangerous, to such an extent that it has or is likely to have an adverse effect on the health and safety of people or the environment; or

(b)

requiring that person to do something that, in the opinion of the enforcement officer, is necessary to ensure that person complies with this Act, any regulations, controls imposed by an approval granted under this Act, or is necessary to avoid, remedy, or mitigate any actual or likely adverse effects on people or the environment resulting from any breach of any regulations or any controls imposed by an approval granted under this Act—

(i)

caused by or on behalf of the person; or

(ii)

relating to any land of which the person is the owner or occupier.

(2)

A compliance order may be made subject to such conditions as are reasonable in the circumstances.

105 Compliance with compliance order

Subject to the rights of appeal in section 125, any person on whom a compliance order is served shall—

(a)

comply with the order within the period specified in the order; and

(b)

unless the order directs otherwise, pay all the costs and expenses of complying with the order.

106 Form and content of compliance order

(1)

Every compliance order shall be in the prescribed form and shall state—

(a)

the name of the person to whom it is addressed; and

(b)

the reasons for the order; and

(c)

the action required to be taken or ceased or not undertaken; and

(d)

the period within which the action shall be taken or cease; and

(e)

the consequences of either not complying with the order or lodging a notice of appeal; and

(f)

the rights of appeal under section 125; and

(g)

the name and address of the agency whose enforcement officer served the order.

(2)

The period referred to in subsection (1)(d) must—

(a)

commence at the time the notice is served; and

(b)

be reasonable, having regard to the circumstances giving rise to the compliance order.

Section 106(1)(d): amended, on 30 October 2003, by section 50(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 106(1)(f): amended, on 30 October 2003, by section 50(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 106(2): added, on 30 October 2003, by section 50(3) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

107 Service of compliance order

(1)

Where a compliance order is to be served on a person, it may be served—

(a)

by delivering it personally to the person (other than a Minister of the Crown); or

(b)

by delivering it at the usual or last known place of residence or business of the person by any means, including by facsimile; or

(c)

by sending it by prepaid post addressed to the person at the usual or last known place of residence or business of that person.

(2)

Where a notice or other document is to be served on a body (whether incorporated or not) for the purposes of this Act, service on an officer of the body, or on the registered office of the body, in accordance with subsection (1) shall be deemed to be service on the body.

(3)

Where a notice or other document is to be served on a partnership for the purposes of this Act, service on any one of the partners in accordance with subsection (1) shall be deemed to be service on the partnership.

(4)

Where a notice or other document is sent by post to a person in accordance with subsection (1)(c), it shall be deemed, in the absence of proof to the contrary, to be received by the person at the time at which the letter would have been delivered in the ordinary course of the post.

108 Cancellation of compliance order

(1)

For the purposes of this section, relevant person means the person or body who or which appointed the enforcement officer who served the compliance order.

(2)

Where a relevant person considers that a compliance order is no longer required, the relevant person may cancel the order at any time except where the order is subject to appeal under section 125.

(3)

Where any relevant person delegates his or her power under this section, no person to whom the powers are delegated shall consider any application made under subsection (6), in respect of any compliance order which he or she has issued.

(4)

The chief executive of a territorial authority may delegate any of his or her powers, functions, or duties under this section.

(5)

The relevant person shall give written notice of a decision under subsection (2) to cancel a compliance order to any person subject to the order.

(6)

Any person who is directly affected by a compliance order may apply in writing to the relevant person to change or cancel the order.

(7)

The relevant person shall, as soon as practicable, consider the application, having regard to the purpose for which the compliance order was given, the effect of a change or cancellation on that purpose, and any other matter the relevant person thinks fit; and the relevant person may confirm, change, or cancel the order.

(8)

The relevant person shall give written notice of the decision to the person who applied under subsection (6).

(9)

Where the relevant person, after considering an application made under subsection (6) by a person who is directly affected by a compliance order, confirms the order or changes it in a way other than that sought by that person, that person may appeal to the District Court in accordance with section 125(3) against the whole or any part of the compliance order.

(10)

A compliance order may not be cancelled where the District Court has confirmed the order.

Enforcement

109 Offences

(1)

Every person commits an offence against this Act who—

(a)

manufactures any hazardous substance in contravention of this Act; or

(aa)

imports, manufactures, uses, or stores a persistent organic pollutant in contravention of this Act; or

(b)

develops or field tests a new organism in contravention of this Act; or

(c)

knowingly imports or releases a new organism in contravention of this Act; or

(d)

knowingly, recklessly, or negligently—

(i)

manufactures, imports, develops, uses, or disposes of any hazardous substance or new organism where any approval is suspended in accordance with section 64:

(ii)

possesses or disposes of any hazardous substance or new organism imported, manufactured, developed, or released in contravention of this Act; or

(da)

fails to comply with any requirements in an EPA notice made under section 76A(d) or (f); or

(e)

fails to comply with—

(i)

any controls imposed by any approval granted under this Act; or

(ii)

any controls specified in any regulations; or

(iii)

any requirement to obtain a test certificate specified in any regulations; or

(ea)

fails to comply with a condition on a licence or permission granted under section 95A or section 95B; or

(eb)

fails to comply with a condition imposed under section 96B(1)(b) on an identified group of hazardous substances; or

(f)

fails to comply with any compliance order served under section 107; or

(g)

fails to comply with any of the requirements of section 124; or

(h)

fails without any lawful justification or excuse to obtain any transferable permit when required to do so by any Order in Council in force under this Act; or

(i)

being a manufacturer, developer, or importer of any hazardous substance or new organism knowingly fails to report any significant new information of any adverse effect of that hazardous substance or new organism; or

(j)

knowingly personates any enforcement officer; or

(k)

wilfully obstructs any enforcement officer in the course of his or her duties; or

(l)

falsely informs a person that an emergency exists where that person knows the information to be false; or

(m)

knowingly labels any package or container in such a manner that the label could in an emergency wrongly indicate the presence of hazardous substances to an enforcement officer, fire services officer, or constable.

(2)

[Repealed]

Section 109(1)(aa): inserted, on 23 December 2004, by section 12 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 109(1)(b): amended, on 7 May 1999, by section 9 of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 109(1)(da): inserted, on 5 September 2015, by section 43(2) of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 109(1)(ea): inserted, on 24 March 2004, by section 7 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 109(1)(eb): inserted, on 22 December 2005, by section 29 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 109(1)(m): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 109(2): repealed, on 20 April 2010, by section 27 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

109A Time for filing charging document

(1)

The limitation period in respect of an offence against this Act that relates to a hazardous substance ends on the date that is 6 months after the earlier of—

(a)

the date when the incident, situation, or set of circumstances to which the offence relates first became known to the person by whom the proceedings are commenced; or

(b)

the date when the incident, situation, or set of circumstances to which the offence relates should reasonably have become known to the person.

(2)

The limitation period in respect of an offence against this Act that relates to a new organism ends on the date that is 2 years after the date on which the offence was committed.

(3)

Subsection (1) is subject to section 109B.

Section 109A: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

109B Extension of time for filing charging document

(1)

The District Court may, on application by any person, extend the time for the person to file a charging document under section 109A(1).

(2)

The application must be made within the 6-month period that applies to the person under section 109A(1).

(3)

The court must not grant an extension unless it is satisfied that—

(a)

the person reasonably requires longer than the 6-month period to decide whether to file a charging document; and

(b)

the reason for requiring the longer period is that the investigation of the events and issues surrounding the alleged offence is complex or time-consuming; and

(c)

it is in the public interest in the circumstances that a charging document is able to be filed after the 6-month period expires; and

(d)

filing the charging document after the 6-month period expires will not unfairly prejudice the proposed defendant in defending the charge.

(4)

The court must give the following persons an opportunity to be heard:

(a)

the person seeking the extension:

(b)

the proposed defendant.

Section 109B: inserted, on 20 April 2010, by section 28 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 109B heading: amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 109B(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 109B(3)(a): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 109B(3)(c): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 109B(3)(d): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

110 Infringement offences

In sections 111 to 113

infringement fee, in relation to an infringement offence, means the amount fixed by regulations made under section 140, as the infringement fee for the offence

infringement offence means an offence specified as such in regulations made under section 140.

Section 110 infringement fee: amended, on 7 May 1999, by section 15(d) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 110 infringement offence: amended, on 7 May 1999, by section 15(d) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

111 Commission of infringement offence

Where any person is alleged to have committed an infringement offence, that person may either—

(a)

be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or

(b)

be served with an infringement notice as provided for in section 112.

Section 111(a): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

112 Infringement notices

(1)

Where an enforcement officer observes a person committing an infringement offence, or has reasonable cause to believe such an offence is being or has been committed by that person, an infringement notice may be issued in respect of that offence.

(2)

Any enforcement officer (not necessarily the officer who issued the notice) may deliver the infringement notice (or a copy of it) to the person alleged to have committed an infringement offence personally or by post addressed to that person’s last known place of residence or business; and in that case it (or the copy) shall be deemed to have been served on that person when it was posted.

(3)

Every infringement notice shall be in the prescribed form and shall contain the following particulars:

(a)

such details of the alleged infringement offence as are sufficient fairly to inform a person of the time, place, and nature of the alleged offence; and

(b)

the amount of the infringement fee specified for that offence; and

(c)

the address at which the infringement fee may be paid; and

(d)

the time within which the infringement fee must be paid; and

(e)

a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957; and

(f)

a statement that the person served with the notice has the right to request a hearing; and

(g)

a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing; and

(h)

such other particulars as are prescribed.

(4)

Where an infringement notice has been issued under this section, proceedings in respect of the offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957; and in that case the provisions of that section shall apply with the necessary modifications.

Section 112(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

113 Entitlement to infringement fees

A territorial authority shall be entitled to retain all infringement fees received by it in respect of infringement offences where the infringement notice was issued by an enforcement officer employed by that authority.

114 Penalties

(1)

Every person who commits an offence against paragraph (a) or paragraph (aa) or paragraph (b) or paragraph (c) or paragraph (d) or paragraph (e) or paragraph (ea) or paragraph (eb) of section 109(1) is liable on conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $500,000 and, if the offence is a continuing one, to a further fine not exceeding $50,000 for every day or part of a day during which the offence has continued.

(2)

Every person who commits an offence against paragraph (f) or paragraph (g) or paragraph (h) or paragraph (i) of section 109(1), or section 156(1), is liable on conviction to a fine not exceeding $50,000 and, if the offence is a continuing one, to a further fine not exceeding $5,000 for every day or part of a day during which the offence has continued.

(3)

Every person who commits an offence against paragraph (j) or paragraph (k) or paragraph (l) or paragraph (m) of section 109(1) is liable on conviction to a fine not exceeding $5,000.

(4)

Where any person is convicted of an offence against section 109, the court may, instead of or in addition to imposing any fine or term of imprisonment, revoke any transferable permit held by that person.

(5)

Where any person is convicted of an offence against section 109, the court may, instead of or in addition to imposing any fine or term of imprisonment, order the person to mitigate or remedy any adverse effects on people or the environment—

(a)

caused by or on behalf of the person; or

(b)

relating to any land of which the person is the owner or occupier—

or to pay the costs of doing so.

(6)

Where any person is convicted of an offence against section 109, the court may, instead of or in addition to imposing any fine or term of imprisonment, order the destruction of any new organism.

(6A)

To avoid doubt, the court may make an order under either or both of subsection (5) and subsection (6) against the same person in respect of the same offence.

(7)

The continued existence of anything, or the intermittent repetition of any actions, contrary to any provision of this Act shall be deemed to be a continuing offence.

Section 114(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 114(1): amended, on 22 December 2005, by section 30 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 114(1): amended, on 23 December 2004, by section 13 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 114(1): amended, on 24 March 2004, by section 8 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 114(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 114(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 114(6A): inserted, on 30 October 2003, by section 51 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

115 Liability of employers and principals

(1)

Subject to subsection (3), where any offence is committed against this Act by a person as the employee of another person, that offence shall, for the purposes of this Act, be treated as committed by that other person as well as by the first-mentioned person, whether or not it was done with that other person’s knowledge or approval.

(2)

Where any offence is committed against this Act by a person acting as the agent of another person, that offence shall, for the purposes of this Act, be treated as committed by the principal unless it is done without the principal’s express or implied authority.

(3)

In any proceedings (being proceedings for an offence against this Act or regulations) against any person in respect of any offence alleged to have been committed against this Act by an employee of that person, it shall be a defence for that person to prove—

(a)

that—

(i)

he or she did not know nor could reasonably be expected to have known that the offence was to be or was being committed; or

(ii)

he or she took such steps as were reasonably practicable to prevent the commission of the offence; and

(b)

that he or she took such steps as were reasonable in all the circumstances to remedy any effects of the act or omission giving rise to the offence.

116 Liability of directors and officers of bodies corporate

Where any body corporate is convicted of an offence against this Act, every director and every person concerned in the management of the body corporate shall be guilty of the like offence if it is proved—

(a)

that the act that constituted the offence took place with his or her authority, permission, or consent; and

(b)

that he or she knew or could reasonably be expected to have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

117 Strict liability and defences

(1)

In any prosecution for an offence specified in paragraph (a) or paragraph (aa) or paragraph (b) or paragraph (e) or paragraph (eb) or paragraph (f) or paragraph (g) of section 109(1), it is not necessary to prove that the defendant intended to commit the offence.

(2)

It is a defence to prosecution of the kind referred to in subsection (1) if the defendant proves—

(a)

that—

(i)

the action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment; and

(ii)

the conduct of the defendant was reasonable in the circumstances; and

(iii)

the defendant took such steps as were reasonable in all the circumstances to mitigate or remedy the effects of the action or event after it occurred; or

(b)

that the action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case—

(i)

the action or event could not reasonably have been foreseen or been provided against by the defendant; and

(ii)

the defendant took such steps as were reasonable in all the circumstances to mitigate or remedy the effects of the action or event after it occurred; or

(c)

that the action or event to which the prosecution related was within the defendant’s control; but—

(i)

the defendant had taken all reasonable steps to prevent the action or event; and

(ii)

the defendant took such steps as were reasonable in all the circumstances to mitigate or remedy the effects of the action or event after it occurred.

(3)

It is a defence to prosecution for any offence specified in section 109(1)(e)(ii) or (iii) that the defendant—

(a)

complied with any code of practice approved under section 79 as a method of achieving the controls that it is alleged that the defendant failed to comply with; or

(b)

was the holder of any current test certificate issued by any test certifier in accordance with section 82, certifying that the controls that it is alleged that the defendant failed to comply with had been met,—

unless the defendant had reason to believe that the code of practice or the structure or goods covered by the test certificate did not meet the relevant controls.

(4)

It is a defence to prosecution for any offence specified in section 109(1)(e)(ii) or (iii) that, at the time of the alleged offence, the defendant was the holder of a conditional test certificate issued under section 82(4A) that—

(a)

specified, as requirements that had not been met, the controls that it is alleged that the defendant failed to comply with; and

(b)

had not expired under section 82(4C).

Section 117(1): amended, on 22 December 2005, by section 31 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 117(1): amended, on 23 December 2004, by section 14 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

Section 117(3): amended, on 7 May 1999, by section 10 of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 117(4): added, on 20 April 2010, by section 29 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

118 Fines to be paid to territorial authority instituting prosecution

(1)

Subject to subsection (2), where a person is convicted of an offence under section 109 and the court imposes a fine, the court shall, if the charging document for that offence was filed on behalf of a territorial authority, order that the fine be paid to that territorial authority.

(2)

There shall be deducted from every amount payable to a territorial authority under subsection (1), a sum equal to 10% thereof, and that sum shall be credited to a Crown Bank Account.

(3)

Notwithstanding anything in subsection (2), where any money awarded by a court in respect of any loss or damage is recovered as a fine, and that fine is ordered to be paid to a territorial authority under subsection (1), no deduction shall be made under subsection (2) in respect of that money.

(4)

Subject to subsection (2), an order of the court made under subsection (1) shall be sufficient authority for the Registrar receiving the fine to pay that fine to the territorial authority entitled to it under the order.

(5)

Nothing in section 73 of the Public Finance Act 1989 shall apply to any fine ordered to be paid to any territorial authority under subsection (1).

Section 118(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 118(2): amended, on 25 January 2005, pursuant to section 65R(3) of the Public Finance Act 1989 (1989 No 44).

119 Search warrants

(1)

Any issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) who is satisfied, on an application made in the manner provided in subpart 3 of Part 4 of that Act, that there are reasonable grounds for believing that there is, in or on or under or over any premises or any dwelling,—

(a)

any substance or organism that has been imported, manufactured, developed, released, held, transported, or disposed of in contravention of this Act; or

(b)

any documents or other records which there are reasonable grounds to believe may be evidence of the commission of any offence under this Act to which paragraph (a) applies,—

may issue a search warrant.

(2)

Every search warrant shall be directed either to a constable by name or to every constable or to any enforcement officer by name, but in any of those cases, the warrant may be executed by any constable.

(3)

Subject to subsection (4), the provisions of Part 4 of the Search and Surveillance Act 2012 apply.

(4)

Despite subsection (3), sections 118 and 119 of the Search and Surveillance Act 2012 apply only in respect of a warrant issued to a named constable or to every constable.

(5)

[Repealed]

(6)

[Repealed]

(7)

[Repealed]

(8)

[Repealed]

Section 119(1): amended, on 1 October 2012, by section 255(2)(a) of the Search and Surveillance Act 2012 (2012 No 24).

Section 119(1): amended, on 1 October 2012, by section 255(2)(b) of the Search and Surveillance Act 2012 (2012 No 24).

Section 119(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 119(3): replaced, on 1 October 2012, by section 255(3) of the Search and Surveillance Act 2012 (2012 No 24).

Section 119(4): replaced, on 1 October 2012, by section 255(3) of the Search and Surveillance Act 2012 (2012 No 24).

Section 119(5): repealed, on 1 October 2012, by section 255(3) of the Search and Surveillance Act 2012 (2012 No 24).

Section 119(6): repealed, on 1 October 2012, by section 255(3) of the Search and Surveillance Act 2012 (2012 No 24).

Section 119(7): repealed, on 1 October 2012, by section 255(3) of the Search and Surveillance Act 2012 (2012 No 24).

Section 119(8): repealed, on 1 October 2012, by section 255(3) of the Search and Surveillance Act 2012 (2012 No 24).

120 Dealing with property seized by enforcement officers
[Repealed]

Section 120: repealed, on 1 October 2012, by section 255(4) of the Search and Surveillance Act 2012 (2012 No 24).

121 Application of Customs and Excise Act 1996 to hazardous substance imported in breach of this Act

A hazardous substance that is being, or has been, imported in breach of this Act is a prohibited import under section 54 of the Customs and Excise Act 1996, and the provisions of that Act (including, for the avoidance of doubt, section 209 of that Act) apply accordingly.

Section 121: substituted, on 22 December 2005, by section 32 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

122 Power to require hazardous substance to leave New Zealand

(1)

If a Customs officer has reasonable cause to believe that a hazardous substance is being, or has been, imported in breach of this Act, the Customs officer may,—

(a)

in the case of a hazardous substance that is being imported in breach of this Act, direct that the importer of the hazardous substance cause the hazardous substance to remain on the ship or aircraft and leave New Zealand at the importer’s own cost and in accordance with the directions of the Customs officer; or

(b)

in the case of a hazardous substance that has been imported in breach of this Act and has been unloaded from a ship or aircraft, direct that the importer of the hazardous substance cause the hazardous substance to leave New Zealand at the importer’s own cost and in accordance with the directions of the Customs officer.

(2)

Subsection (1)(b) applies only to hazardous substances that are goods that are subject to the control of the Customs in accordance with section 20 of the Customs and Excise Act 1996.

(3)

In this section,—

cost, in relation to a hazardous substance that has been imported in breach of this Act, includes the costs of handling, storing, and transporting the hazardous substance

importer has the same meaning as in section 2(1) of the Customs and Excise Act 1996.

Section 122: substituted, on 22 December 2005, by section 33 of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

123 Declaration that organism not genetically modified

Any inspector (as defined in section 2(1) of the Biosecurity Act 1993) may require any person importing any organism to declare, by statutory declaration, that the organism is not a genetically modified organism.

124 Responsibilities of carrier and person in charge of any craft

(1)

For the purposes of this Act, the carrier and the person in charge of any craft that berths, lands, or otherwise arrives in New Zealand from another country, or that is to so berth, land, or arrive, shall—

(a)

ensure that any documentation, required by regulations, in relation to all hazardous substances loaded onto that craft is available:

(b)

on arrival of the craft at a port of entry or Customs airport, produce for inspection such documentation as a Customs officer may lawfully specify.

(2)

The carrier and the person in charge of a craft leaving New Zealand shall—

(a)

provide transportation from New Zealand, at the cost in respects of the carrier, of any hazardous substance on board the craft, or any other craft operated by the carrier when it arrived in New Zealand, which was not accompanied by the documentation required by regulations:

(b)

in respect of any hazardous substance for which the carrier is obliged to provide transportation or the cost of transportation under paragraph (a), to pay all the costs (if any) incurred by the Crown in holding that substance before the removal of that substance from New Zealand.

Part 7A Pecuniary penalties and civil liability for breaches relating to new organisms

Part 7A: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

124A Interpretation

In this Part, unless the context otherwise requires,—

court means the High Court

enforcement agency means the chief executive of the department of State responsible for the administration of the Biosecurity Act 1993.

Section 124A: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Pecuniary penalties

Heading: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

124B Pecuniary penalty order

(1)

The enforcement agency may apply to the court for an order that a person pay to the Crown a pecuniary penalty under this Act.

(2)

The court may make the order if it is satisfied that the person—

(a)

developed, field tested, imported, or released a new organism in breach of this Act; or

(b)

possessed or disposed of any new organism imported, developed, or released in breach of this Act; or

(c)

failed to comply with any controls relating to a new organism—

(i)

imposed by any approval granted under this Act; or

(ii)

specified in regulations made under this Act.

(3)

The court must not make the order if the person satisfies the court that the person did not know, and could not reasonably have known, of the breach.

Section 124B: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 124B(2)(b): amended, on 20 September 2007, by section 6 of the Hazardous Substances and New Organisms Amendment Act 2007 (2007 No 61).

124C Amount of pecuniary penalty

(1)

The court must not make an order for the payment of a pecuniary penalty that exceeds,—

(a)

in the case of an individual, $500,000; or

(b)

in the case of a body corporate, the greater of—

(i)

$10,000,000; or

(ii)

if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or

(iii)

if the commercial gain cannot be readily ascertained, 10% of the turnover of the body corporate and all of its interconnected bodies corporate (if any).

(2)

In determining an appropriate penalty under this section, the court must have regard to all relevant matters, including—

(a)

the nature and extent of the breach:

(b)

the nature and extent of any loss or damage suffered by any person or to the environment as a result of the breach:

(c)

the circumstances in which the breach took place:

(d)

whether or not the person has previously been found in proceedings under this Act to have engaged in any similar conduct:

(e)

the steps taken by the person to bring the breach to the attention of the enforcement agency:

(f)

the steps taken by the person to avoid, remedy, or mitigate the effects of the breach.

(3)

In this section, interconnected and turnover have the same meaning as in the Commerce Act 1986.

Section 124C: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

124D Other orders instead of or in addition to pecuniary penalty order

(1)

At the conclusion of proceedings for an order for the payment of a pecuniary penalty under section 124B, the court may, instead of or in addition to making the order, make—

(a)

an order that the person mitigate or remedy any adverse effects on people or the environment—

(i)

caused by or on behalf of the person; or

(ii)

relating to any land that the person owns or occupies; or

(b)

an order to pay the costs of mitigating or remedying the adverse effects specified in paragraph (a).

(2)

At the conclusion of proceedings for an order for the payment of a pecuniary penalty under section 124B, the court may, instead of or in addition to making the order, make an order for the destruction of the new organism involved in the breach.

(3)

To avoid doubt, the court may make an order under either or both of subsections (1) and (2) against the same person in respect of the same breach.

Section 124D: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

124E Standard of proof and procedural matters

In proceedings for an order under section 124B,—

(a)

the standard of proof is the standard of proof that applies in civil proceedings; and

(b)

the enforcement agency may, by order of the court, obtain discovery and administer interrogatories.

Section 124E: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

124F Relationship between concurrent proceedings for pecuniary penalty and criminal proceedings

(1)

Criminal proceedings under this Act may be started against a person whether or not proceedings for an order under section 124B have been started against the person for the same act or omission or substantially the same act or omission in respect of which the criminal proceedings have been started.

(2)

Uncompleted proceedings for an order under section 124B must be stayed if criminal proceedings are started or have already been started against the person for the same act or omission or substantially the same act or omission in respect of which the order is sought.

Section 124F: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Civil liability for acts and omissions while in breach

Heading: inserted, 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

124G Civil liability

(1)

A person is liable in damages for any loss or damage caused by any act or omission of the person while—

(a)

developing, field testing, importing, or releasing a new organism in breach of this Act; or

(b)

possessing or disposing of any new organism imported, developed, or released in breach of this Act; or

(c)

failing to comply with any controls relating to a new organism—

(i)

imposed by any approval granted under this Act; or

(ii)

specified in any regulations made under this Act.

(2)

A person is liable under subsection (1) whether or not—

(a)

the person intended the act, omission, or breach; or

(b)

the person was taking reasonable care when the act, omission, or breach occurred.

(3)

To avoid doubt, proceedings under this section are in addition to, and not in substitution for, any other cause of action.

Section 124G: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 124G(1)(b): amended, on 20 September 2007, by section 7 of the Hazardous Substances and New Organisms Amendment Act 2007 (2007 No 61).

124H Defences to liability under section 124G

(1)

A person is not liable under section 124G if the person proves 1 or more of the defences specified in subsection (2) in relation to the breach.

(2)

The defences are—

(a)

that—

(i)

the breach was necessary for the purpose of—

(A)

saving or protecting life or health; or

(B)

preventing serious damage to property; or

(C)

avoiding an actual or likely adverse effect on the environment; and

(ii)

the conduct of the defendant was reasonable in the circumstances; and

(iii)

the defendant took steps that were reasonable in all the circumstances to mitigate or remedy the effects of the breach after it occurred; or

(b)

that the breach was due to an event beyond the control of the defendant (including natural disaster, mechanical failure, or sabotage) and—

(i)

the event could not reasonably have been foreseen or been provided against by the defendant; and

(ii)

the defendant took steps that were reasonable in all the circumstances to mitigate or remedy the effects of the breach after the event occurred; or

(c)

that the defendant did not know, and could not reasonably have known, of the breach.

Section 124H: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Liability for acts and omissions of others

Heading: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

124I Breaches, acts, and omissions by directors, employees, or agents

(1)

This section applies for the purposes of sections 124B and 124G.

(2)

A body corporate is to be treated as in breach of this Act or as having done or omitted to do an act if—

(a)

a director, employee, or agent of the body corporate, acting within the scope of his or her actual or apparent authority, is in breach of this Act or has done or omitted to do an act; or

(b)

any other person, at the direction or with the consent or agreement (whether express or implied) of a director, employee, or agent of the body corporate, given within the scope of the actual or apparent authority of the director, employee, or agent, is in breach of this Act or has done or omitted to do an act.

(3)

A person (person A) who is not a body corporate is to be treated as in breach of this Act or as having done or omitted to do an act if—

(a)

an employee or agent of person A, acting within the scope of his or her actual or apparent authority, is in breach of this Act or has done or omitted to do an act; or

(b)

any other person, at the direction or with the consent or agreement (whether express or implied) of an employee or agent of person A, given within the scope of the actual or apparent authority of the employee or agent, is in breach of this Act or has done or omitted to do an act.

(4)

If a person in breach of this Act has a defence to the breach under section 124H, the defence is also available to another person if the breach is to be treated under subsection (2) or subsection (3) as also the breach of the other person.

(5)

However, the defence under section 124H(2)(c) is not available to the other person unless the other person also proves that he or she did not know, and could not reasonably have known, of the breach by the person.

(6)

If the court is prevented by section 124B(3) from making an order under that section against a person in breach of this Act and the breach is to be treated under subsection (2) or subsection (3) of this section as also the breach of another person, the court must not make an order under section 124B against the other person if it is satisfied that the other person did not know and could not reasonably have known of the breach.

Section 124I: inserted, on 30 October 2003, by section 52 of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Part 8 Appeals

125 Appeals

(1)

In any case where the Authority—

(a)

issues a transferable permit entitling the holder to import or manufacture less substance than the holder claimed to be entitled to import or manufacture; or

(b)

declines any application for a transferable permit; or

(c)

revokes any transferable permit; or

(d)

imposes any charge on any person to recover costs in accordance with section 21; or

(da)

revokes a test certificate under section 82C; or

(e)

declines any application for approval as a test certifier in respect of any relevant controls in accordance with section 84; or

(f)

revokes any approval to act as a test certifier in respect of any relevant controls in accordance with section 86; or

(g)

suspends all or any part of any approval to act as a test certifier in accordance with section 86; or

(h)
[Repealed]

(i)

declines any application under section 51 to tranship a substance or organism,—

any person directly affected may appeal against that decision to the District Court.

(1A)

A person may appeal to the District Court against—

(a)

a decision of the Authority, under section 95A,—

(i)

about the terms and conditions of a permission held by the person; or

(ii)

declining to grant the person a permission or revoking a permission held by the person; or

(b)

a decision of the Authority, under section 95B,—

(i)

about the terms and conditions of a licence held by the person; or

(ii)

declining to grant the person a licence or revoking a licence held by the person.

(2)

In any case where—

(a)

any property is seized and retained pursuant to section 119; or

(b)

an application for compensation is declined in accordance with section 138; or

(c)

costs are awarded in accordance with section 61,—

the person directly affected may appeal against that decision to the District Court.

(2A)

Where a Customs officer directs in accordance with section 122 that a hazardous substance remains on a ship or aircraft, the person directly affected may appeal against that direction to the District Court.

(2B)

If a Customs officer directs in accordance with section 122 that an importer of a hazardous substance is to cause the hazardous substance to leave New Zealand, the importer may appeal against that direction to the District Court.

(3)

Any person on whom a compliance order is served may appeal to the District Court against the whole or any part of that order.

(4)

Any person who lodges a notice of appeal under subsection (3) may apply to the District Court for a stay of the compliance order until the determination of the appeal.

(5)

The District Court shall not confirm a compliance order against which an appeal has been lodged where the person on whom the order was served was acting in accordance with—

(a)

controls on any hazardous substance under this Act; or

(b)

conditions imposed on an approval granted under this Act.

(6)

Subject to subsection (7), the decision of the court on any appeal under this Act shall be final.

(7)

Any party to an appeal under this section may further appeal to the High Court on a question of law.

Section 125(1)(da): inserted, on 22 December 2005, by section 34(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 125(1)(h): repealed, on 7 May 1999, by section 12(1) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 125(1A): inserted, on 24 March 2004, by section 9 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 125(2A): inserted, on 7 May 1999, by section 12(2) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 125(2B): inserted, on 22 December 2005, by section 34(2) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

126 Appeal on question of law

(1)

Any—

(a)

party to any application for an approval or an application under section 26 or regulations; or

(b)

person who made submissions to the Authority on any application for an approval or an application under section 26 or regulations—

may appeal against the decision of the Authority to the High Court on a question of law, unless a right of appeal to the District Court against the decision is provided for in any other provision of this Act.

(2)

Any report and recommendation of the Authority under section 72 is deemed to be a decision for the purposes of Part 10 of the High Court Rules 2016.

(3)

An appeal under this section shall be made in accordance with the High Court Rules 2016, except to the extent that those rules are inconsistent with sections 127 to 134.

Section 126(2): amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48).

Section 126(3): amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48).

127 Notice of appeal

Before or immediately after the filing and service of a notice of appeal, the appellant shall serve a copy of the notice on—

(a)

the Authority; and

(b)

every other party to the proceedings; and

(c)

any other person who made a submission to the Authority.

128 Right to appear and be heard on appeal

(1)

A party to any proceedings, or any person who made submissions to the Authority, and who wishes to appear and be heard on an appeal to the High Court, shall give notice of his or her intention to appear to—

(a)

the appellant; and

(b)

the Registrar of the High Court; and

(c)

the Authority.

(2)

The notice to appear under subsection (1) shall be served within 10 working days after the party or the person was served with the notice of appeal.

129 Parties to appeal before High Court

(1)

The parties to an appeal before the High Court are the appellant, the Authority, and any person who gives notice of intention to appear under section 128.

(2)

The Registrar of the High Court shall ensure that the parties to an appeal before the High Court are served with—

(a)

a copy of every document which is filed or lodged with the Registrar of the High Court relating to the appeal; and

(b)

notice of the time and date set down for hearing the appeal.

130 Orders of High Court

(1)

The High Court may, on application to it or on its own motion, make an order directing the Authority to lodge with the Registrar of the High Court all or any of the following things:

(a)

anything in the possession of the Authority relating to the appeal; and

(b)

a report recording, in respect of any matter or issue the court may specify, any of the findings of fact of the Authority which are not set out in its decision or report and recommendation; and

(c)

a report setting out, so far as is reasonably practicable and in respect of any issue or matter the order may specify, any reasons or considerations to which the Authority had regard but which are not set out in its decision or report and recommendation.

(2)

An application under subsection (1) shall be made,—

(a)

in the case of the appellant, within 20 working days after the date on which the notice of appeal is lodged; or

(b)

in the case of any other party to the appeal, within 20 working days after the date of the service on him or her of a copy of the notice of appeal.

(3)

The High Court may make an order under subsection (1) only if it is satisfied that a proper determination of a point of law so requires; and the order may be made subject to such conditions as the High Court thinks fit.

131 Additional appeals on points of law

(1)

When a party to an appeal, other than the appellant, wishes to contend that the decision or report and recommendation of the Authority or District Court is in error on other points of law, that party may lodge a notice to that effect with the Registrar of the High Court.

(2)

The notice under subsection (1) shall be lodged within 20 working days after the date on which the respondent is served with a copy of the notice of appeal.

(3)

Sections 127 to 129 apply to a notice lodged under subsection (1), with all necessary modifications.

132 Extension of time

On the application of a party to an appeal, the High Court may extend any period of time stated in sections 128 and 130.

133 Date of hearing

When a party to an appeal notifies the Registrar of the High Court—

(a)

that the notice of appeal has been served on all parties to the proceedings; and

(b)

either—

(i)

that no application has been lodged under section 130; or

(ii)

that any application lodged under section 130 has been complied with—

the appeal is ready for hearing and the Registrar shall arrange a hearing date as soon as practicable.

134 Appeals to Court of Appeal

Subpart 8 of Part 6 of the Criminal Procedure Act 2011 applies as far as applicable with the necessary modifications to a decision of the High Court under section 126 as if the decision were made under section 304 of that Act.

Section 134: replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Part 9 Emergencies

135 Interpretation

In this Part, unless the context otherwise requires,—

emergency means—

(a)

actual or imminent danger to human health or safety; or

(b)

a danger to the environment or chattels so significant that immediate action is required to remove the danger—

arising from a hazardous substance or new organism

enforcement officer includes any constable, and any Chief Fire Officer or person exercising the powers of a Chief Fire Officer under section 28 or section 28A or section 29 of the Fire Service Act 1975.

Section 135 enforcement officer: amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

136 Declaration of emergency

(1)

Where any enforcement officer has reasonable grounds to believe that—

(a)

there is an emergency; and

(b)

either,—

(i)

no state of emergency has been declared under the Civil Defence Emergency Management Act 2002; or

(ii)

the emergency is not being dealt with under the Fire Service Act 1975; or

(iii)

no emergency has been declared under section 144 of the Biosecurity Act 1993; or

(iv)

no other enforcement officer has declared an emergency under this Act; and

(c)

all or any of the powers set out in section 137 should be exercised in order to—

(i)

enter any premises or dwelling; or

(ii)

remove the cause of the emergency; or

(iii)

stabilise the situation to limit the actual or likely adverse effects of the emergency; or

(iv)

protect the health and safety of people, chattels, or the environment from the actual or likely adverse effects of any emergency,—

the enforcement officer may declare a hazardous substance or new organisms emergency.

(2)

A hazardous substance or new organisms emergency shall be declared by the enforcement officer by—

(a)

identifying himself or herself to any persons in the vicinity; and

(b)

stating his or her authority to exercise emergency powers; and

(c)

announcing the nature of the emergency and the area likely to be affected.

(3)

Every enforcement officer shall notify—

(a)

the person who appointed him or her as an enforcement officer, if he or she was appointed under section 98; and

(b)

the Authority—

of every occasion on which a hazardous substances or new organisms emergency is declared by that officer under this section.

(4)

Any emergency declared under this section shall cease—

(a)

48 hours after the time of declaration; or

(b)

when a state of emergency is declared under the Civil Defence Emergency Management Act 2002; or

(c)

when the emergency is treated by a Chief Fire Officer as an emergency under the Fire Service Act 1975; or

(d)

when an emergency is declared under section 144 of the Biosecurity Act 1993,—

whichever is the sooner.

(5)

Where the conditions which caused the emergency to be declared under subsection (1) still exist 48 hours after the time of declaration of the emergency and the emergency has not been treated as an emergency under any of the provisions in paragraphs (b), (c), and (d) of subsection (4), 1 further declaration of emergency may be made under this Act and the provisions of subsection (4) shall apply accordingly.

(6)

Any emergency declared under this section shall have effect over the area specified under subsection (2)(c).

Section 136(1)(b)(i): substituted, on 1 December 2002, by section 117 of the Civil Defence Emergency Management Act 2002 (2002 No 33).

Section 136(4)(b): substituted, on 1 December 2002, by section 117 of the Civil Defence Emergency Management Act 2002 (2002 No 33).

137 Emergency powers

(1)

When a hazardous substance or new organisms emergency has been declared under section 136, any enforcement officer may—

(a)

enter any premises or any dwelling at any time without complying with the provisions of section 103 or section 119:

(b)

exercise any of the powers set out in section 103:

(c)

exercise any of the powers set out in section 119(5):

(d)

direct any person to stop any activity which may contribute to the emergency:

(e)

request any person, either verbally or in writing, to take any action to prevent or limit the extent of the emergency:

(f)

direct any person to leave any place in the vicinity of the emergency:

(g)

direct any person to refrain from entering the vicinity of the emergency:

(h)

requisition any property for use in the emergency:

(i)

destroy any property or any other thing in order to prevent or limit the extent of the emergency:

(j)

secure the site for up to 24 hours following the decision of the enforcement officer that the immediate danger is past.

(2)

If an enforcement officer enters any private property pursuant to the powers conferred by subsection (1), he or she shall advise the occupier of the property as soon as practicable.

Section 137(1)(b): amended, on 7 May 1999, by section 15(e) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

138 Compensation for property requisitioned or destroyed

(1)

Where any enforcement officer or any person acting at the request of an enforcement officer, made under section 137(1)(e)

(a)

requisitions any property from any person for use in an emergency; or

(b)

destroys any property in order to prevent or limit the extent of any emergency,—

there shall be payable, on written application by any person having an interest in the property, by the organisation whose chief executive appointed the enforcement officer or (where the enforcement officer is a constable) out of money appropriated by Parliament for the purpose, reasonable compensation for any loss or damage caused by the requisition or destruction of the property.

(2)

Compensation shall not be payable under this section to any person who caused or contributed substantially to the emergency which brought about the requisition or destruction.

(3)

Where there is any dispute as to the entitlement of any person to compensation under this section, or as to the amount of such compensation, or as to the liability of the Crown or any other person or organisation to pay any such compensation, the matter shall be determined by any court of competent jurisdiction.

Section 138(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

139 Protection of enforcement officers and persons

No action or proceedings shall be brought against any enforcement officer or any person acting at the request of an enforcement officer made under section 137(1)(e), in respect of any actions taken by any such officer or person under this Part where that officer or that person has acted in good faith and with reasonable care.

Part 10 Miscellaneous provisions

140 Regulations

(1)

Subject to section 141, the Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

(a)

prescribing organisms as genetically modified organisms for the purpose of this Act:

(b)

prescribing organisms as organisms which are not genetically modified for the purposes of this Act:

(ba)

prescribing organisms that are not new organisms for the purposes of this Act:

(c)

prescribing or providing for controls on compressed gases, whether intrinsically hazardous or not:

(d)

prescribing the method of estimating the quantity of any substance or organism to be imported or manufactured:

(e)

prescribing controls for any hazardous substance to avoid or mitigate any adverse effects on the physical or chemical nature of the environment:

(f)

prescribing controls to avoid or mitigate illness or injury to people or damage to the environment or chattels from any hazardous substance:

(fa)

prescribing controls for any conditionally released new organism or any qualifying organism released with controls, to avoid or mitigate any adverse effects on the physical or chemical nature of the environment:

(fb)

prescribing controls for any conditionally released new organism or any qualifying organism released with controls, to avoid or mitigate illness or injury to people or animals (other than the persons or animals referred to in section 38I(4)(a) and (b)) or damage to the environment or chattels:

(g)

prescribing requirements to be met by a laboratory, and during the storage, importation, or transportation of any hazardous substance, for the purposes of section 33:

(h)

prescribing—

(i)

any species as a risk species where any subspecies, infrasubspecies, variety, strain, or cultivar of that species may have adverse effects on the health and safety of people or the environment; or

(ii)

any subspecies, infrasubspecies, variety, strain, or cultivar as a risk species where that subspecies, infrasubspecies, variety, strain, or cultivar may have adverse effects on the health and safety of people or the environment:

(i)

prescribing those offences under this Act that constitute infringement offences against this Act:

(j)

prescribing forms of infringement notices, and prescribing the infringement fees (not exceeding $1,000) for each infringement offence, which may be different fees for different offences:

(k)

prescribing countries or organisations for the purposes of sections 28, 31, 34, 38A, and 40:

(l)

prescribing information to be provided with any application for approval:

(m)

prescribing forms for the purposes of this Act:

(n)

prescribing documentation to be issued in respect of any hazardous substance before importation into New Zealand:

(o)

prescribing qualifications for—

(i)

enforcement officers appointed under section 100:

(ii)

test certifiers appointed under section 84:

(p)

prescribing controls for by-products with hazardous properties, which result from the manufacture of any substance:

(q)

prescribing damage as serious environmental damage for the purposes of section 144:

(r)

prescribing restrictions and prohibitions on the sale of specified fireworks:

(s)

providing for such other matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.

(2)

Regulations may only be made under subsection (1)(p) where the Authority has notified the Minister that the Authority has reviewed the controls on any by-product with hazardous properties under this Act or any other Act and has satisfied itself that those controls are not sufficient to achieve the purposes of this Act.

(2A)

Regulations may be made under subsection (1)(ba) only if the Minister has considered—

(a)

whether the organism has formed a self-sustaining population in New Zealand; and

(b)

whether any person is attempting to manage, control, or eradicate the organism under any Act.

(3)

Any regulations made under this Act may provide for controls by reference to controls in regulations under any other Act:

(4)

Any regulations made under subsection (1) may require any person to obtain a test certificate at any specified time certifying that a specified requirement has been met.

(5)

Regulations made under subsection (1)(c) may prescribe or provide for controls on any compressed gases, whether or not the properties of any gas that is compressed are intrinsically hazardous, and those compressed gases must all be treated as hazardous substances for the purposes of Part 7 regardless of their properties.

Section 140(1)(ba): inserted, on 30 October 2003, by section 53(1) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 140(1)(c): amended, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 140(1)(fa): inserted, on 30 October 2003, by section 53(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 140(1)(fb): inserted, on 30 October 2003, by section 53(2) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 140(1)(g): substituted, on 2 July 2001, by section 34(1) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 140(1)(k): amended, on 20 September 2007, by section 8 of the Hazardous Substances and New Organisms Amendment Act 2007 (2007 No 61).

Section 140(1)(k): amended, on 7 May 1999, by section 15(f) of the Hazardous Substances and New Organisms Amendment Act 1999 (1999 No 35).

Section 140(2A): inserted, on 30 October 2003, by section 53(3) of the Hazardous Substances and New Organisms Amendment Act 2003 (2003 No 54).

Section 140(4): added, on 2 July 2001, by section 34(2) of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 140(5): added, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

140A Persistent organic pollutants

(1)

The Governor-General may, by Order in Council, amend Schedule 2A to—

(a)

add any hazardous substance that exhibits the characteristics of a persistent organic pollutant as specified in the Stockholm Convention:

(b)

include or amend a use for a persistent organic pollutant:

(c)

include or amend a date on the close of which a use included under paragraph (b) ceases to be allowed.

(2)

An Order in Council made under subsection (1) must be consistent with New Zealand’s obligations under the Stockholm Convention.

Section 140A: inserted, on 23 December 2004, by section 15 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

140B Schedule 1AA may be amended or substituted

The Governor-General may, by Order in Council,—

(a)

amend Schedule 1AA by making any amendments to the text of the Stockholm Convention set out in the schedule as are required to bring it up to date:

(b)

revoke Schedule 1AA and substitute a new schedule setting out in an up-to-date form the text of the Stockholm Convention.

Section 140B: inserted, on 23 December 2004, by section 15 of the Hazardous Substances and New Organisms (Stockholm Convention) Amendment Act 2003 (2003 No 37).

141 Procedure for making Orders in Council

(1)

Before making any recommendation for the purpose of making any Order in Council under this Act (other than any Order in Council or part of an Order in Council made under section 9(1), 55(6), 140(1)(i), (j), or (m), or 140B), the Minister shall—

(a)

request the Authority to—

(i)

do everything reasonably practicable on its part to advise all persons, who or which in its opinion may be affected by any Order in Council made in accordance with the recommendation, of the proposed terms of the Order in Council; and

(ii)

give such persons a reasonable opportunity to make submissions on them to the Authority; and

(iii)

advise the Minister of any submissions received, and any comments the Authority wishes to make on the submissions or the proposed Order in Council; and

(b)

request the Authority to advise on the best international practices and standards for the safe management of hazardous substances and new organisms,—

and the Minister shall have regard to those submissions and comments received in accordance with paragraph (a) and to the advice received in accordance with paragraph (b).

(2)

Subsection (1)(a) shall not apply in respect of any Order in Council if the Minister considers it is desirable in the public interest that the Order in Council be made urgently.

(2A)

Subsection (1) does not apply in respect of an Order in Council if its sole purpose is to revoke any regulations replaced or to be replaced, or otherwise provided for, by an EPA notice or by any regulations or safe work instrument made under the Health and Safety at Work Act 2015.

(3)

A failure to comply with subsection (1) shall not affect the validity of any Order in Council made under this Act.

Section 141(1): amended, on 8 November 2016, by section 11 of the Agricultural Compounds and Veterinary Medicines Amendment Act 2016 (2016 No 82).

Section 141(1): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141(1): amended, on 1 July 2011, by section 12 of the Hazardous Substances and New Organisms Amendment Act 2011 (2011 No 16).

Section 141(2A): inserted, on 5 September 2015, by section 49 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

141A Incorporation of material by reference

(1)

The following material may be incorporated by reference into any regulations, EPA notice, group standard, notice of transfer, or code of practice:

(a)

standards, requirements, or recommended practices of national or international organisations:

(ab)

standards, requirements, or recommended practices prescribed in any country or jurisdiction or by any group of countries:

(b)

any document or other material that, in the opinion of the Minister (in the case of regulations) or the Authority (in the case of an EPA notice, a group standard, a notice of transfer, or a code), is too large or impractical to be printed as part of the regulations, EPA notice, group standard, notice of transfer, or code.

(2)

Any such material may be so incorporated in regulations, an EPA notice, a group standard, a notice of transfer, or a code of practice either in whole or in part, and either unmodified or with such additions or variations as are specified in the regulations, EPA notice, group standard, notice of transfer, or code.

(3)

Material has legal effect as part of the regulations, EPA notice, group standard, notice of transfer, or code of practice in which the material is incorporated by reference.

(4)

[Repealed]

Section 141A: inserted, on 2 July 2001, by section 35 of the Hazardous Substances and New Organisms Amendment Act 2000 (2000 No 89).

Section 141A(1): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141A(1): amended, on 22 December 2005, by section 35(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 141A(1)(a): substituted, on 20 April 2010, by section 30(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141A(1)(ab): inserted, on 20 April 2010, by section 30(1) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141A(1)(b): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141A(1)(b): amended, on 22 December 2005, by section 35(2)(b) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 141A(2): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141A(2): amended, on 22 December 2005, by section 35(3)(a) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 141A(2): amended, on 22 December 2005, by section 35(3)(b) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 141A(3): substituted, on 20 April 2010, by section 30(2) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141A(3): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141A(4): repealed, on 20 April 2010, by section 30(3) of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

141B Amendment to, or replacement of, material incorporated by reference

(1)

An amendment to, or replacement of, material has legal effect as part of the regulations, EPA notice, group standard, or code of practice in which the material is incorporated by reference only if a notice is published in the Gazette

(a)

stating that the amendment or replacement has that effect; and

(b)

specifying the date of the notice, or a later date, as the date on which the amendment or replacement has that effect.

(2)

The following person may publish the notice:

(a)

the Minister, in the case of material incorporated in regulations; or

(b)

the Authority, in the case of material incorporated in an EPA notice or a group standard or code of practice.

(3)

The notice must not be published unless the amendment or replacement material is of the same general character as the material amended or replaced.

(4)

An amendment to, or replacement of, material does not have legal effect as part of a notice of transfer in which the material is incorporated by reference.

Section 141B: inserted, on 20 April 2010, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141B(1): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141B(2)(b): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

141C Proof of material incorporated by reference

(1)

A copy of material that is incorporated by reference in regulations, including any amendment to, or replacement of, that material, must be—

(a)

certified as a correct copy of the material by the chief executive of the Ministry for the Environment; and

(b)

retained by that chief executive or the chief executive of the Authority.

(2)

A copy of material that is incorporated by reference in an EPA notice or a group standard, notice of transfer, or code of practice, including any amendment to, or replacement of, that material, must be—

(a)

certified as a correct copy of the material by the chief executive of the Authority; and

(b)

retained by that chief executive.

(3)

The production in proceedings of a certified copy of the material is, in the absence of evidence to the contrary, sufficient evidence of the incorporation of that material in the regulations, EPA notice, group standard, notice of transfer, or code of practice.

Section 141C: inserted, on 20 April 2010, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141C(2): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141C(3): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

141D Material incorporated by reference that ceases to have effect

(1)

If material ceases to have effect, it ceases to have legal effect as part of the regulations, EPA notice, group standard, or code of practice in which the material is incorporated by reference only if a notice is published in the Gazette

(a)

stating that the material ceases to have that effect; and

(b)

specifying the date of the notice, or a later date, as the date on which the material ceases to have that effect.

(2)

The following person may publish the notice:

(a)

the Minister, in the case of material incorporated in regulations; or

(b)

the Authority, in the case of material incorporated in an EPA notice or a group standard or code of practice.

(3)

Material that ceases to have effect does not cease to have legal effect as part of a notice of transfer in which the material is incorporated by reference.

Section 141D: inserted, on 20 April 2010, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141D(1): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141D(2)(b): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

141E Notice must be provided to committee responsible for examining regulations

If a notice is published in the Gazette under section 141B or 141D in relation to material incorporated in regulations, an EPA notice, or a group standard, the following person must promptly provide a copy of the notice to the chairperson of the committee of the House of Representatives responsible for examining regulations:

(a)

the chief executive of the Ministry for the Environment, in the case of material incorporated in regulations; or

(b)

the chief executive of the Authority, in the case of material incorporated in an EPA notice or a group standard.

Section 141E: inserted, on 20 April 2010, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141E: amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141E(b): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

141F Requirement to consult on proposal to amend or replace material incorporated by reference

(1)

The Minister must comply with subsection (2) before publishing a notice in the Gazette under section 141B stating that an amendment to, or replacement of, material has legal effect as part of the regulations in which the material is incorporated by reference.

(2)

The Minister must notify and consult on the proposed amendment to, or replacement of, material in accordance with section 141 (with all necessary modifications) as if the proposed amendment or replacement were a proposed Order in Council.

(3)

The chief executive of the Authority must comply with subsection (4) before publishing a notice in the Gazette under section 141B stating that an amendment to, or replacement of, material has legal effect as part of the EPA notice or group standard or code of practice in which the material is incorporated by reference.

(4)

The chief executive must notify and consult on the proposed amendment to, or replacement of, material,—

(a)

in the case of a group standard, in accordance with sections 53 to 61 (with all necessary modifications) as if the proposed amendment or replacement were an application under section 96B to amend a group standard; or

(b)

in the case of a code of practice, in accordance with section 79(2) and (3) (with all necessary modifications) as if the proposed amendment or replacement were a code proposed for approval; or

(c)

in the case of an EPA notice, in accordance with section 76C (with all necessary modifications) as if the proposed amendment or replacement were a proposal to amend an EPA notice.

(4A)

However, there is no need to comply with subsection (2) or (4) in the case of an amendment to material incorporated by reference if the Minister or the chief executive, as the case may be, considers that the amendment is minor in effect or corrects a minor or technical error.

(5)

A failure to comply with this section does not invalidate regulations that incorporate material by reference or an EPA notice or a group standard or code of practice that incorporates material by reference.

Section 141F: inserted, on 20 April 2010, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

Section 141F(3): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141F(4)(b): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141F(4)(c): inserted, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141F(4A): inserted, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141F(5): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

141G Access to material incorporated by reference in regulations

(1)

This section applies if material is incorporated by reference in regulations.

(2)

The chief executive of the Ministry for the Environment must—

(a)

make the material referred to in subsection (5) (the incorporated material) available for inspection during working hours, free of charge, at—

(i)

the head office of the Ministry; and

(ii)

any other places that the chief executive may, at his or her discretion, determine are appropriate; and

(b)

ensure that copies of the incorporated material are available for purchase by members of the public at a reasonable price; and

(c)

make copies of the incorporated material available, free of charge, on an Internet site maintained by or on behalf of the Ministry, unless doing so would infringe copyright in that material or be inconsistent with any other enactment or rule of law; and

(d)

give notice in the Gazette

(i)

stating that the incorporated material is available for inspection during working hours, free of charge, and specifying the places at which it can be inspected; and

(ii)

stating that copies of the incorporated material can be purchased and specifying the places at which they can be purchased; and

(iii)

if applicable, stating that the incorporated material is available on the Internet, free of charge, and specifying the Internet site address.

(3)

The chief executive—

(a)

may make copies of the incorporated material available in any other way that he or she considers appropriate in the circumstances; and

(b)

must, if paragraph (a) applies, give notice in the Gazette stating that the incorporated material is available in other ways and specifying details of where or how it can be accessed or obtained.

(4)

The chief executive may comply with subsection (2)(c) by providing a hypertext link from an Internet site maintained by or on behalf of the Ministry to a copy of the incorporated material that is available, free of charge, on an Internet site that is maintained by or on behalf of someone else.

(5)

The material is—

(a)

material incorporated by reference in regulations:

(b)

any amendment to, or replacement of, that material that is incorporated in the regulations, or the material referred to in paragraph (a) with the amendments or replacement material incorporated:

(c)

if the material referred to in paragraph (a) or (b) is not in an official New Zealand language, as well as the material itself, an accurate translation in an official New Zealand language of the material.

(6)

A failure to comply with this section does not invalidate regulations that incorporate material by reference.

Section 141G: inserted, on 20 April 2010, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

141GA Access to material incorporated by reference in EPA notices

(1)

This section applies if material is incorporated by reference in an EPA notice.

(2)

The chief executive of the Authority must—

(a)

make the material referred to in subsection (5) (the incorporated material) available for inspection during working hours, free of charge, at—

(i)

the head office of the Authority; and

(ii)

any other places that the chief executive may, at his or her discretion, determine are appropriate; and

(b)

ensure that copies of the incorporated material are available for purchase by members of the public at a reasonable price; and

(c)

make copies of the incorporated material available, free of charge, on an Internet site maintained by or on behalf of the Authority, unless doing so would infringe copyright in that material or be inconsistent with any other enactment or rule of law; and

(d)

give notice in the Gazette

(i)

stating that the incorporated material is available for inspection during working hours, free of charge, and specifying the places at which it can be inspected; and

(ii)

stating that copies of the incorporated material can be purchased and specifying the places at which they can be purchased; and

(iii)

if applicable, stating that the incorporated material is available on the Internet, free of charge, and specifying the Internet site address.

(3)

The chief executive—

(a)

may make copies of the incorporated material available in any other way that he or she considers appropriate in the circumstances; and

(b)

must, if paragraph (a) applies, give notice in the Gazette stating that the incorporated material is available in other ways and specifying details of where or how it can be accessed or obtained.

(4)

The chief executive may comply with subsection (2)(c) by providing a hypertext link from an Internet site maintained by or on behalf of the Authority to a copy of the incorporated material that is available, free of charge, on an Internet site that is maintained by or on behalf of someone else.

(5)

The material is—

(a)

material incorporated by reference in an EPA notice:

(b)

any amendment to, or replacement of, that material that is incorporated in an EPA notice, or the material referred to in paragraph (a) with the amendments or replacement material incorporated:

(c)

if the material referred to in paragraph (a) or (b) is not in an official New Zealand language, as well as the material itself, an accurate translation in an official New Zealand language of the material.

(6)

A failure to comply with this section does not invalidate an EPA notice that incorporates material by reference.

Section 141GA: inserted, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

141H Access to material incorporated by reference in group standard, notice of transfer, or code of practice

(1)

This section applies if material is incorporated by reference in a group standard, notice of transfer, or code of practice.

(2)

The chief executive of the Authority must—

(a)

make the material referred to in subsection (3) (the incorporated material) available for inspection by members of the public free of charge; and

(b)

ensure that copies of the incorporated material are available for purchase by members of the public at a reasonable price; and

(c)

give notice in the Gazette

(i)

stating that the incorporated material is available for inspection free of charge and specifying the places at which it can be inspected; and

(ii)

stating that copies of the incorporated material can be purchased and specifying the places at which they can be purchased.

(3)

The material is—

(a)

material incorporated by reference in a group standard, notice of transfer, or code of practice:

(b)

any amendment to, or replacement of, that material that is incorporated in the group standard or code of practice, or the material referred to in paragraph (a) with the amendments or replacement material incorporated:

(c)

if the material referred to in paragraph (a) or (b) is not in an official New Zealand language, as well as the material itself, an accurate translation in an official New Zealand language of the material.

(4)

A failure to comply with this section does not invalidate a group standard, notice of transfer, or code of practice that incorporates material by reference.

Section 141H: inserted, on 20 April 2010, by section 31 of the Hazardous Substances and New Organisms Amendment Act 2010 (2010 No 18).

141I Application of Legislation Act 2012

(1)

Part 2 of the Legislation Act 2012 does not apply to material incorporated by reference in regulations, EPA notices, group standards, notices of transfer, or codes of practice, or to any amendment to, or replacement of, that material.

(2)

Subpart 1 of Part 3 of the Legislation Act 2012 applies to regulations, EPA notices, group standards, and notices of transfer that incorporate material by reference, but does not apply to codes of practice that incorporate material by reference.

(3)

However, nothing in section 41 of the Legislation Act 2012 requires material (including any amendment to, or replacement of, that material) that is incorporated by reference in regulations, EPA notices, group standards, or notices of transfer to be presented to the House of Representatives.

Section 141I: replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).

Section 141I(1): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141I(2): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

Section 141I(3): amended, on 5 September 2015, by section 54 of the Hazardous Substances and New Organisms Amendment Act 2015 (2015 No 72).

142 Relationship to other Acts

(1)

Nothing in this Act shall affect the requirements of the Biosecurity Act 1993 in relation to any organism.

(2)

Every person exercising a power or function under the Resource Management Act 1991 relating to the storage, use, disposal, or transportation of any hazardous substance shall comply with the provisions of this Act and with regulations and notices of transfer made under this Act.

(3)

Nothing in subsection (2) shall prevent any person lawfully imposing more stringent requirements on the storage, use, disposal, or transportation of any hazardous substance than may be required by or under this Act where such requirements are considered necessary by that person for the purposes of the Resource Management Act 1991.

(4)

Nothing in this Act shall apply to any resource consent, being—

(a)

a land use consent relating to the storage, use, disposal, or transportation of any hazardous substance; or

(b)

a coastal permit to do something that would otherwise contravene section 15 of the Resource Management Act 1991; or

(c)

a discharge permit,—

where that resource consent was granted before the coming into force of any regulations made under this Act (other than regulations made under Parts 11 to 16) until such time as the conditions on the resource consent are reviewed in accordance with section 128 of the Resource Management Act 1991.

(5)

For the purposes of this section, resource consent has the same meaning as in the Resource Management Act 1991.

(6)

Any controls prescribed under any other Act for any hazardous substance shall not contravene the provisions of regulations made under sections 75 and 76 unless—

(a)

there is a provision in that other Act that expressly provides that controls made under that other Act for specified purposes may contravene the provisions of regulations made under this Act; and

(b)

the controls are made for the purposes provided for in that Act.

Section 142(2): amended, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

Section 142(3): amended, on 24 March 2004, by section 13 of the Hazardous Substances and New Organisms (Transitional Provisions and Controls) Amendment Act 2004 (2004 No 7).

142A Exemptions from approval requirements
[Expired]

Section 142A: expired, on 2 July 2006, by section 142A(6).

143 Notification of hazardous substances injuries

(1)

In this section,—

hospital means a hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001

medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine.

(2)

If any person, upon admission to a hospital, is found to be suffering from any injury caused by a hazardous substance, the person for the time being in charge of the hospital shall give notice of the injury to the Medical Officer of Health.

(2A)

If a medical practitioner finds that a person who is not admitted to a hospital is suffering from an injury caused by a hazardous substance, the medical practitioner must give notice of the injury to the Medical Officer of Health.

(3)

The Medical Officer of Health shall ensure that information about any injury notified in accordance with subsection (2) or subsection (2A) (not being information which identifies any individual person) is supplied to the Minister of Health.

Section 143(1): substituted, on 22 December 2005, by section 36(1) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 143(2A): inserted, on 22 December 2005, by section 36(2) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

Section 143(3): amended, on 22 December 2005, by section 36(3) of the Hazardous Substances and New Organisms (Approvals and Enforcement) Amendment Act 2005 (2005 No 123).

144 Reporting of incidents

(1)

Every person in charge of a substance involved in an incident resulting in serious harm to any person or serious environmental damage shall, unless an enforcement officer attended the incident or subsection (2) applies, report that incident to an enforcement officer.