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| Submission by Hospitality Association of New Zealand to the Health Committee on The Public Health Bill
7 March 2008 Hospitality Association of New Zealand Public Health Bill Members of the Select Committee The Hospitality Association of New Zealand represents a diverse variety of New Zealand hospitality businesses including restaurants, caf￩ bars, hotels, off-licenses and a wide array of short and long term accommodation providers. The Association is voluntary and is primarily funded by membership subscriptions. Our membership of approximately 2350 plus members employ 11,610 full-time and 19,674 part time employees for a total of around 30,000 people. Approximately 83% of the Association’s members are small businesses and owner operated. The Association asserts that this figure mirrors the wider hospitality industry. There is also a perception that the Association speaks for and represents the interests of the hospitality industry as a whole. The Association has considered the bill and makes appropriate comment on selected aspects of the bill. The Association would like an opportunity to be heard before the Committee on its submission. Bruce H Robertson 1. Introduction 1.1. The Bill’s purpose is to improve, promote and protect public health in order to help obtain optimal and equitable health outcomes. In doing so the Bill will also replace and update old legislation. 1.2. The Association supports these objectives and also welcomes the Bill’s measures in respect of emergency, quarantine and border protection as a sound response to the potential for epidemic and pandemic emergencies that could have adverse consequences for New Zealand’s vital industries, including of course tourism of which hospitality forms a major part. 1.3. While the Bill is therefore desired from these perspectives, the Association is concerned about some of the Bill’s provisions, particularly with respect to industry codes of conduct in respect of non-communicable diseases, and regulated activities. 1.4. Indeed, the Association is concerned that the Bill’s provisions have the potential to extend well beyond the health sector in a way much wider than desired or perhaps is necessary. 1.5. The Association notes that one of the Bill’s objectives is to “ensure the exercise of powers under the provisions of the Act involves a response that is in proportion to the nature and seriousness of the risk to public health”. 1.6. However, the Association is concerned with some of the seemingly general powers that the Bill provides in respect of this stated objective. 1.7. The Bill further states that in seeking to achieve its purpose that the Bill will reflect the need to “complement other legislation that seeks to improve, promote and protect public health”. 1.8. It is these aspects of the Bill that the Association’s submission is primarily focused on. 2. Discussion on Selected Aspects of the Bill 2.1 Part 3: Non–communicable diseases 2.1.1 The Ministry of Health, in their commentary on the Bill, state that “Public health legislation has traditionally focused on communicable disease and environmental health. Although these remain very significant issues, they are no longer the main cause of death and ill-health in New Zealand. Rather those illnesses broadly categorised as non-communicable diseases (NCDs) are the main causes of ill-health and death today, and are the significant drivers of health expenditure. The Bill therefore recognises and enables steps to be taken to address risk factors associated with such diseases.” 2.1.2 The Bill consequently provides for the Director-General of Health to issue non-binding codes of practice and guidelines about NCD risk factors. The Bill also provides for statements about goods, substances or services in respect of any promotional or communication material and the Bill permits regulations to be made that would assist in reducing risk factors associated with NCDs. 2.1.3 Although it is accepted that codes or guidelines issued under this provision are non-binding, the Bill certainly includes the scope to regulate after any period of non compliance both under Clause 88 (1) (c) as well as the general regulatory making powers under Clause 374 of the Bill. 2.1.4 The Association is concerned that any codes or guidelines could be given a far greater effect than desirable or necessary particularly in respect to the advertising and marketing of products with only the potential to have health consequences without necessarily being subject to proper scrutiny in proportion to actual seriousness and established risks to public health. 2.1.5 Most businesses that are involved in potential risks to the community from NCDs will readily comply with any codes, guidelines and requirements to avoid causing harm to their customers, communities and their businesses. But the Association is concerned that there need only be a small proportion of non compliance with any codes and guidelines to result in full regulation affecting the entire industry in possibly a more adverse way than desired or necessary. 2.1.6 Further, it is worth noting that many risk factors in respect of what could be considered NCDs are already addressed under specific legislation. Such examples include the Smoke-free Environments Act, Sale of Liquor Act, Wine Act, Gambling legislation and Food Safety legislation to name a few examples. Indeed, Clause 84 of the Bill states that ‘in issuing or amending a code of practice or guidelines, the Director-General must endeavour to avoid including any provisions that overlap with matters contained in an enactment’. The Association considers that this should be taken one step further by taking out the words ‘endeavour to’, so that there is absolutely no overlap with matters contained in any other enactment. 2.1.7 The Association also considers that clause 84 should clearly state that a code of practice will not be introduced when existing self-regulatory codes or co-regulatory codes are already in existence. This would go some way towards eliminating the doubling up of codes from two separate regulatory frameworks that would undoubtedly lead to confusion. 2.1.8 It is simply confusing and compliance intensive to have differing regulatory outcomes in the same sector, which at a practical level will not work. 2.2 Part 6: Regulated activities2.2.1 The Bill sets out a framework for managing risks to public health including providing for a wide range of approaches depending on the nature of the activity and extent of the risk. Although the Bill provides for the continuation of a number of specified activities from the 1956 Health Act, the Bill introduces the potential for other activities to be included under the regulated activity framework set out in Subpart 7 to Part 6 the Bill. 2.2.2 The Association would only wish to see these powers used in situations where normal advice, discussion and approval processes, including where necessary under appropriate specific legislation such as the Smoke-free Environments Act, Sale of Liquor Act, Food legislation and indeed Health and Safety in Employment legislation have been demonstrably insufficient to control clearly identified risks. 2.2.3 The Association considers that the Bill does not adequately address this concern. 2.2.4 Further, while the Association notes the scope in the Bill for any proposed regulated activity to be subject to an appropriate consent from a consent authority, the Bill does not mandate this and notes that the Bill effectively leaves it up to the Minister about whether this process is required in respect of an activity. 2.3 Part 8: Miscellaneous provisions 2.3.1 Clause 374 of the Bill contains two further provisions of concern. 2.3.2 Subclause 374 (r) of the Bill allows controls on the manufacture, packing and sale of any thing likely to introduce or increase a risk to public health, while Subclause 374 (x), allows for the making of regulations to reduce or assist with reducing risk factors associated with or related to NCDs. 2.3.3 First, the Association is concerned about the wide potential of these provisions and, as stated, their scope to extend well beyond established and or demonstrated health concerns without necessarily needing to be addressed by Parliament or in response to actual risks. 2.3.4 Second, the regulation making power under Clause 374 does not include any guidance or checks on misuse when considering making regulations. 2.3.5 The Association considers that such wide powers ought, at the very least to be made following consideration of expert advice and that the Bill provide for this check as well as the usual cost benefit analysis that should accompany any decisions in respect of the making of regulations. 2.3.6 By way of comparison, Part 5 of the Bill provides for territorial authorities to make bylaws and in doing so the Bill requires territorial authorities to extensively consult before any bylaws in respect of public health are made. 2.3.7 The Association considers that a similar requirement ought to apply to the making of regulations under Clause 374 and that by doing so reduce the potential for improper exercise of general regulatory power. 3. Conclusion 3.1 While accepting the need to update the Health Act and related legislation in respect of public health issues, the Association has some concerns about the scope and powers provided by the Bill. 3.2 In particular, the extension of the framework in the Bill into areas not generally considered applicable under Public Health legislation, including the potential for overlap and conflict in areas satisfactorily and appropriately addressed by other specific legislation. 3.3 The Association is also concerned about the wide and general powers to regulate, not just established public health issues and practices, but also activities without any demonstrated or established health issues. 3.4 The Association considers that if these provisions must remain in the Bill that guidance be provided in the Bill as a check against the potential for misuse of these powers as well as ensuring consistency with related legislation to ensure compliance costs are kept to a necessary minimum and in doing so ensuring maximum compliance to meet the Bill’s objectives. 3.5 The Association would also like to recommend that appropriate criteria in respect of the exercise of the Bill’s powers with regards to non-communicable diseases, regulated activities and regulation making be included in the Bill. 3.6 Such criteria, in the Association’s view should include greater regard for demonstrated and established risks to public health, rather than actual or perceived risk.
Summary of Recommendations
(a) Where any prospective codes of practice or guidelines are to be issued by the Director General under Part 3 of the Bill that any prospective codes of practice or guidelines follow a mandatory and rigorous regulatory criteria checklist and be based on demonstrated risk; and (b) That the words “endeavour to” be removed from Clause 84 of the Bill to ensure that there is no overlap between any codes of practice and any other legislation and guidelines in respect of any clearly identified risks to public health; and (c) A code of practice or guideline should not be able to be issued when a self-regulatory or co-regulatory code already exists; and (d) That any regulations made follow a mandatory and rigorous regulatory criteria checklist to include significant and transparent discussions with key affected people and groups. |
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