Powers from two places...

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NickWallingford

BOP Club
319
465
Tauranga
Experience
Retired
Biosecurity Act
https://www.legislation.govt.nz/act/public/1993/0095/latest/whole.html

American Foulbrood Pest Management Plan
https://www.legislation.govt.nz/regulation/public/1998/0260/latest/whole.html


There has been concern in the last few years along the lines of “The Management Agency is using powers that are not in the PMP Order. They are using powers from both the Order, but also from the Biosecurity Act.” The implication is that the Mgmt Agency is overstepping its authority, that this shouldn’t be happening.

The Biosecurity Act 1993 (BSA) is sometimes referred to as an “umbrella act”, in that it sets the necessary conditions and framework for the control of pests, but doesn’t actually spell out all the specifics. The BSA describes how Pest Management Plans can be created, and it describes a wide range of powers that might be needed for such plans. It is that subsequent PMP Order that gives most of the specific powers, and places obligations on both the beekeeper and the Mgmt Agency.

So the AFB PMP Order provides some pretty specific rules (sections 10-40). Things like requiring bees to be kept in moveable-frame hives, clearly something pretty specific to the beekeeping industry. It is the Order that makes the prohibition on the feeding of drugs that might mask the visual signs of AFB, again something quite specific to our PMP.

But the AFB PMP is quite clear about the powers that are available to the Mgmt Agency. Section 8 describes which of the powers that are described in the BSA are selectively “conferred” on the Mgmt Agency, and another set of powers that are “conferred” on an Authorised Person (AP). The BSA describes other powers as well, but unless the Order specifically confers a particular power, they are not available for the Mgmt Agency or APs.

Section 8 of the PMP Order, for example, allows the provisions of section 128 of the Biosecurity Act to be used. That is, if someone refuses an instruction from the Mgmt Agency, the Agency is given the “power to act on default”. That’s a power described, “created” if you will, by the BSA. But the AFB PMP Order specifically gives that power to the Mgmt Agency. The power doesn't appear in the Order - it appears in the Act itself.

Similarly, by conferring the powers of section 109 of the BSA to the Authorised Persons of the AFB PMP, it allows the powers for all of the aspects of inspection, including the right to enter someone’s property. Those powers are not described in the Order - they appear in the BSA, and section 8 of the Order makes them available to APs.

And section 122 of the BSA is provided to the AFB PMP. That section would appear to me to be the one used to provide the legal basis for recent actions.

The point I want to make is that there is nothing sneaky about using the powers from the BSA that are specified in the AFB PMP Order. The specific application of the power by the Mgmt Agency is always up to challenge legally. And it would be a rash Mgmt Agency that acted, using those “conferred powers”, without ensuring the relevant department (MPI) and the Minister were informed and without objections.
 


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