Ground-breaking new legislation, which is likely to have wide economic impact on the country, has come under fire for the lack of public consultation in its drafting and for containing serious constitutional flaws.
Solicitor Rae Nield, in consultation with a group of IT industry representatives, including distributor Ingram Micro, has made a strongly-worded submission to the select committee reviewing the proposed Waste Minimisation (Solids) Bill, at Parliament.
The bill proposes substantial changes for all industries towards greater accountability for disposing of products at the end of their lifecycles, says Nield. It includes regulations to deal with waste electrical and electronic equipment, or e-waste and makes provision for "cradle-to-grave" product stewardship schemes.
However, even though the bill has the potential to have far reaching economic impact, it has not had full public consultation.
"It is effectively a Government bill that has gone out without general public consultation," says Nield.
"The bill as drafted is dramatically different from Nandor Tanczos' private member's bill on which it was based. This is ground-breaking legislation. All New Zealanders should be given the opportunity to comment fully on the new proposal."
A particular concern for Nield is the criminal provisions in the bill. She says the extended liability provisions breach the constitutional principle that a person is presumed innocent until proven guilty: directors and managers are deemed to be guilty of breaches of regulations (including regulated product stewardship schemes) unless they can show they did not know and could not have known of the breaches.
"This is a reversal of ancient convention enshrined in criminal law statutes and procedure. It is a serious constitutional flaw. Extended liability is dealt with appropriately in other statutes, and these precedents should be followed."
The bill's offence provisions are also unclear and may be too harsh on people who commit minor, inadvertent or non-commercial breaches, says Nield. Breaches of the bill could result in fines of up to $100,000.
Regulations imposed under the bill could result in major compliance costs for any business in New Zealand, while the processes it proposes could impose significant costs on the IT industry, says Nield.
Meanwhile the criteria under which product stewardship schemes are accredited do not adequately address the economic sustainability of such programmes, says Nield.
She proposes a cautious approach to introducing product stewardship schemes. "A conservative approach now would permit more extensive product stewardship controls later on."
As drafted the bill could result in significant market competition issues, including the potential for increased barriers to entry for new players in the local market, says Nield.
But despite these concerns, Nield and the consulting group do support the objectives of the bill, in particular measures to reduce solid waste in the IT industry. "We are simply concerned that the bill as drafted will be unbalanced, onerous and expensive, and therefore is less likely to be workable."
In her submission to the select committee, Nield has suggested a redrafting of the bill to reduce its negative impact and to improve its effectiveness. "We are looking to a reduction not only in the transaction costs of addressing waste minimisation within the industry, but also to increasing the effectiveness of enforcement."