The National Beekeepers' Association of New Zealand v The Chief Executive of the Ministry of Agriculture and Forestry [2007] NZCA 556 (4 December 2007)

Last Updated: 22 December 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA128/07 [2007] NZCA 556

BETWEEN THE NATIONAL BEEKEEPERS' ASSOCIATION OF NEW ZEALAND
Appellant

AND THE CHIEF EXECUTIVE OF THE MINISTRY OF AGRICULTURE AND FORESTRY
Respondent

Hearing: 18 July 2007

Court: Hammond, Randerson and Chisholm JJ

Counsel: D J Boldt for Appellant
H S Hancock and R Iyer for Respondent

Judgment: 4 December 2007 at 4 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The appellant is entitled to costs against the respondent of $5000 plus usual disbursements.

100. The interim order made by Simon France J prohibiting the importation of honey and other bee products from Australia (other than from Western Australia) is continued pending the further order of this Court.

4. Counsel must file memoranda in accordance with the timetable identified in this judgment on the form of relief which should follow this judgment.

____________________________________________________________________

REASONS OF THE COURT
(Given by Randerson J)

Introduction

[1] For many years, New Zealand has prohibited the importation of honey and other bee products from Australia. But that prohibition was lifted in August 2006 when the Director-General of the Ministry of Agriculture and Forests (MAF) issued an Import Health Standard (IHS) under the Biosecurity Act 1993 (the BSA). The IHS was issued after consultation with affected parties and an assessment by MAF of the risks posed by the introduction of honey and other bee products from Australia. In consequence, MAF considered that importations of honey from Australia could be permitted if they complied with the IHS and otherwise met the requirements of the BSA.
[2] This led to the importation of 2000 kgs of honey from Australia in December 2006. This was a matter of concern to the National Beekeepers’ Association of New Zealand, an organisation representing the bulk of beekeepers in this country. The Beekeepers’ Association brought an application for judicial review in the High Court, contending that the imported honey contained a potentially harmful bacterium paenibacillus alvei (P. alvei), not previously identified as being present in New Zealand. The risks posed by P. alvei and other potentially harmful bacteria had been assessed by MAF before the IHS was issued. The pleadings alleged that the issuing of the IHS was unlawful or, alternatively, that MAF was not authorised to clear the goods for importation into New Zealand under the BSA.
[3] It is common ground that, over time, the importation of honey from the eastern states of Australia will inevitably result in the introduction of P. alvei to this country. It is accepted that P. alvei is not susceptible to control by heat treatment as is the case for other potentially harmful organisms commonly associated with honey and other bee products. The Beekeepers’ Association is concerned that P. alvei may be pathogenic to honey bees and other organisms. This last contention is disputed by the respondent which contends there is no discernible risk.
[4] The key submission by the Beekeepers’ Association in the High Court, and in this Court, was that P. alvei is a “new organism” which cannot lawfully be brought into New Zealand without an approval under the Hazardous Substances and New Organisms Act 1996 (HSNO).
[5] Initially there was debate about whether P. alvei was a new organism as defined by HSNO. However, that issue was laid to rest on 12 February 2007 by a formal determination of the Environmental Risk Management Authority (ERMA), under s 26 HSNO, that it was indeed a new organism for the purposes of HSNO. P. alvei has since been gazetted as such. ERMA’s determination had been sought by MAF which contended there was evidence of the existence of P. alvei in New Zealand before the critical date of 29 July 1998 specified in the HSNO definition of “new organism”. If that were so, P. alvei would fall outside the definition of a “new organism”. The committee of ERMA considering the application was not satisfied the evidence of the existence of P. alvei before the critical date was reliable. It is common ground that no approval has been given under HSNO for P. alvei.
[6] In the High Court (CIV 2006-485-2845 21 March 2007), Simon France J rejected the submission by the Beekeepers’ Association that approval under HSNO was required, accepting the submission made by MAF that an approval under HSNO was not required for new organisms which were merely “passenger” organisms associated with the importation of other goods. Approval under HSNO was only necessary where the new organism was itself the intended import. Any risks associated with passenger organisms were to be dealt with by MAF under the BSA alone. The issuing of the IHS was accordingly lawful.
[7] As the High Court Judge said, the issue for determination in this appeal is a classic one for judicial review: does MAF or ERMA have jurisdiction to grant approval for the importation of P. alvei into New Zealand as a passenger in honey brought from Australia?

The decision under appeal

[8] Simon France J initially made an interim order on 18 December 2006 preventing any further importations of honey from Australia until the substantive application could be heard. In his final decision, delivered on 21 March 2007, the Judge dismissed the application for review but later extended the import prohibition pending this appeal (with the exception of imports from Western Australia where the existence of P. alvei has apparently not been identified).
[9] In a succinct and careful decision, the Judge reviewed the purposes and provisions of the BSA and HSNO. Although initially attracted to the conclusion that HSNO was the obvious regime to deal with new organisms, he concluded that MAF’s position was correct and that it was authorised to undertake the relevant risk assessment for the importation of honey (including any risks associated with P. alvei) and to issue the relevant IHS.
[10] The Judge’s reasoning was that, in terms of s 22 BSA, it was the responsibility of the Director-General to identify any organisms which might arrive as a consequence of allowing particular goods into New Zealand. He considered s 22 required the Director-General to assess any dangers associated with identified organisms, to impose controls to manage or eliminate identified risks, and not to allow goods to enter New Zealand if it were considered the risks could not be adequately managed.
[11] The Judge did not consider s 22 suggested that, if an organism identified as potentially arriving as a passenger was a new organism, the matter must be referred to ERMA. There was, he said, no compelling policy reason why it should be, since MAF had the capacity to undertake the task and would ultimately be guided by the same concerns and responsibilities as ERMA.
[12] The Judge considered that HSNO applied where a person sought approval to import a new organism. Any such application required an applicant to identify the potential use of the organism. The test for approving a new organism was that “the positive effects of the organism outweigh the adverse effects” (see s 38(1)(a) HSNO). The Judge considered this presupposed a purposeful importation where the focus was on the new organism itself. He observed that no positive effects of the introduction of P. alvei were contended for.
[13] As the Judge put it at [34]:

The plaintiff’s case requires a reference to ERMA to import an organism that may come sometime but it is not known when, that the importer does not want to bring in, and for which the importer has no intended use or plan to release it.

[14] The Judge concluded that the most obvious reading of the legislation is that unintended passenger importations do not come within the HSNO approval regime. The focus should be on how and why the new organism was to be imported rather than on the new organism itself.
[15] The Judge considered that the overall scheme of the two Acts did not suggest different safety standards would be in operation. Both had as their goal the safety of New Zealand’s environment and both Acts recognised it was neither desirable nor practicable to shut borders. Ultimately, the task was safe management and the Judge did not see s 7 HSNO (the precautionary principle) as establishing a different standard from that which would be applied by MAF under the BSA.

The broad contentions of the parties

[16] For the appellant, Mr Boldt submitted in this Court that the BSA did not provide an alternative mechanism by which new organisms, as defined by HSNO, could be imported into New Zealand if they were not the object of the importation but were merely passengers associated with the goods imported. He submitted that if an organism is new and poses a potential risk then importers must satisfy the requirements of both the BSA and HSNO. The only body having power to approve the importation of a new organism was ERMA. The Director-General of MAF and enforcement officers appointed under the BSA had the dual responsibilities of ensuring compliance with both enactments. If a new organism presented potential environmental or health risks, then those risks would be no less real if the organism were imported into New Zealand as a passenger than if the organism was the intended object of the import.
[17] In response, Mr Hancock for the respondent supported the decision under appeal for the reasons given by the Judge. He submitted that the BSA provided for the assessment of risks associated with imported goods including risks associated with passenger organisms, whether or not these constituted new organisms. HSNO, he submitted, is concerned with the deliberate importation of new organisms, not with the unintended importation of passenger organisms. Since P. alvei was not the subject of the importation of honey, no approval by ERMA under HSNO was required.

Background to the legislation

[18] The BSA consolidated into one enactment the previous Animals Act 1967, the Plants Act 1970, the Poultry Act 1968, the Noxious Plants Act 1978, the Agricultural Pests Destruction Act 1967, the Apiaries Act 1969, and parts of the Dog Control and Hydatids Act 1982.
[19] In introducing the Biosecurity Bill, the Honourable John Falloon, then Minister of Agriculture, stated:

The purpose of this Bill is the exclusion, eradication, or effective management of pests and unwanted organisms of all kinds. It provides for the management of risks associated with the importation of animals, plants, microbia and their products and anything contaminated by them. Secondly, the Bill will provide for damage control – that is to say, the investigation and management of unwanted organisms whether they be of foreign origin, such as foot and mouth disease or fruit-fly, or long established in New Zealand as is the case with tuberculosis and sheep measles.

((8 December 1992) 532 NZPD 13090)

[20] Until the later passage of the HSNO legislation, there were restrictions in s 28 BSA on the issue of biosecurity clearance for animals and plants not already established in New Zealand. However, upon the enactment of HSNO, the BSA was extensively modified with the clear intention of ensuring the two enactments would work in harmony with each other.
[21] The HSNO Bill had its genesis in Part 13 of the Resource Management Act 1991 which provided for the establishment of a Hazards Control Commission. In terms of s 345(2) Resource Management Act, this was a body designed to:

[B]alance the benefits which may be obtained from hazardous substances and new organisms against the risks and damage to the environment and to the health, safety and economic, social and cultural wellbeing of people and communities ... .

[22] Part 13 never came into force. Instead, the HSNO Bill was developed. Like the BSA it replaced a number of legislative measures dealing with hazardous substances as well as selected sections of the Plants Act and the Animals Act. In introducing the HSNO Bill, the Honourable Simon Upton (the then Minister for the Environment) stated:

[H]azardous substances at present undergo multiple assessments, which result in differing and at times conflicting controls being applied. The net effect is confusion about who is doing what, and therefore unnecessary costs ... .

With respect to new organisms, the present legislation, which this Bill seeks to correct, has almost no capacity to enable environmental effects to be considered in importing new plants. The procedures for considering animal introductions are also less than complete in their attention to environmental impact. It is not clear whether any of the current legislation can cover the introduction of micro-organisms.

...

[The Bill] will provide a coherent overall system for the management of hazardous substances and new organisms, based on the need to provide for the health and safety of people and the environment. This means managing the risks from chemical substances and developments in genetic manipulation, while retaining the access to these substances and organisms, which are essential for the continued operation of a technically advanced and natural resource based economy.

((8 November 1994) 544 NZPD 4603)

[23] It is evident from the parliamentary debates that Parliament had several concerns. One was to have a comprehensive legislative regime rather than piecemeal legislation. Another was the absence of legislation to deal with genetically modified organisms. A third was a concern to adopt the “precautionary principle” now reflected in s 7 HSNO. Reporting back from the Select Committee, the Chairman (Mr Nick Smith MP) stated:

The second key issue is the debate over the precautionary principle or the precautionary approach. The committee members reflected on the history of New Zealand’s mistakes in that regard – the introduction of rabbits, wasps, gorse, and other species that have been disastrous – and we believe that it is very important that we establish the principle that where there is significant doubt about technical or scientific issues, the new body to legislate in this area – the Environmental Risk Management Authority – should take a cautious approach. The committee has recommended changes to the Bill that do just that.

((19 December 1995) 552 NZPD 10763)

[24] During the select committee process, the concept of “net national benefit” in the original Bill was replaced with a purpose clause (now s 4 HSNO). The Minister for the Environment’s interpretation of this change was stated at the second reading of the Bill:

There can be no doubt that in removing the process goal of net national benefit, the select committee has substituted the protection of the environment and the public health and safety as the overriding goals. That is an uninteresting observation, in my view. The important question is whether this formulation has significantly tipped the scales in favour of environmental protection at the expense of economic and social development. In my view, it has, but to nowhere near the degree some rather alarmist lobbyists might suggest.

((16 April 1996) 554 NZPD 11900)

[25] It is evident from both the adoption of the precautionary principle and the change to a purpose provision, that Parliament was concerned to ensure a high standard of environmental protection was the overriding goal of the new legislation.
[26] On the other hand some support for the respondent’s contention is reflected in the Report of the Committee on Hazardous Substances and New Organisms Bill (1995) at 13:

With regard to the interface with the Biosecurity Act 1994 [sic], we are of the view that, in cases where the introduction of a new organism is considered and there is a risk of bringing in a passenger disease organism, the assessment of the new organism itself (under the HSNO legislation) and the passenger disease (under the Biosecurity Act) should be carried out together. We further recommend that all aspects of this joint assessment should be made through a public process.

[27] As the Judge highlighted at [7] of the judgment under appeal, the Ministry for the Environment issued a discussion document in 1992 well before the introduction of HSNO. The discussion paper began by identifying the intended scope of the new Act in the form of a chart which differentiated between intentional and unintentional “human assisted importations”. Under the “unintentional” heading were Passenger Organisms and Associated Organisms. The chart indicated these were to be covered by the proposed Biosecurity Bill.
[28] In summary, the extrinsic material as to parliamentary intention, to the extent that it is relevant to the present issue, suggests that, although there was to be a close relationship between the two pieces of legislation, passenger or associated organisms were to be dealt with under the Biosecurity Bill rather than under HSNO. However, the extrinsic material also demonstrates that while the approval of new organisms under HSNO would normally require an assessment of both risks and benefits, Parliament was concerned that a precautionary approach be adopted. This was out of concern for the protection of the environment as well as health and safety issues.
[29] The adoption of the precautionary approach in HSNO is unusual in New Zealand legislation, reflecting Parliament’s concern that risks associated with the introduction of potentially harmful new organisms are carefully and cautiously assessed. It is noteworthy that the precautionary principle has not been adopted in the BSA. Even in the Resource Management Act 1991, which is concerned with the protection of the environment (including people and communities), the precautionary principle is not mentioned in the Part II purposes and principles. It is only mentioned more obliquely in s 32(4)(b) in relation to the preparation of instruments and rules.
[30] While the extrinsic material is of interest, the primary source of statutory intention must be the legislation itself which is to be ascertained from its text and in the light of its purpose: s 5 Interpretation Act 1999.

BSA

[31] It is immediately apparent that there is a close connection between the BSA and HSNO. A number of the definitions adopted are the same or similar in both enactments. Importantly, “new organism” has the same meaning under the BSA as it does under HSNO. The expression “import” is defined in s 2(1) BSA as meaning to “bring within New Zealand territory from outside that territory”. Under HSNO, the same definition is adopted.
[32] The long title of the BSA states that it is:

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

[33] An “unwanted organism” is defined in s 2(1) and includes cross-references to new organisms under HSNO:

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

(a) Includes—

(i) Any new organism, if the Authority has declined approval to import that organism; and

(ii) Any organism specified in Schedule 2 of the Hazardous Substances and New Organisms Act 1996; but

(b) Does not include any organism approved for importation under the Hazardous Substances and New Organisms Act 1996, unless—

(i) The organism is an organism which has escaped from a containment facility; or

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

[34] This provision indicates a clear link to, and demarcation from, the importation of new organisms. It suggests that, with carefully defined exceptions not relevant here, new organisms are the responsibility of “the Authority” (ERMA) through the specific approval process identified in HSNO.
[35] An important function of the Director-General of MAF under the BSA is the effective management of risks associated with the importation of “risk goods”. These are defined in s 2:

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

(a) Cause unwanted harm to natural and physical resources or human health in New Zealand; or

(b) Interfere with the diagnosis, management, or treatment, in New Zealand, of pests or unwanted organisms

[36] The definition of risk goods is wide enough to include an organism which may itself cause unwanted harm as well as an organism which it is reasonable to suspect “harbours or contains” an organism that may cause unwanted harm.
[37] A significant focus of the decision under appeal was the power of the Director-General to issue an IHS “specifying the requirements to be met for the effective management of risks associated with the importation of risk goods ...”. Section 22 relevantly provides:

22 Import health standards

(1) The Director-General may, following the recommendation of a chief technical officer, issue an import health standard specifying the requirements to be met for the effective management of risks associated with the importation of risk goods before those goods may be imported, moved from a biosecurity control area or a transitional facility, or given a biosecurity clearance; and may, in a like manner, amend or revoke any import health standard so issued.

(2) If an import health standard requires a permit to be obtained from the Director-General before the goods can be imported, moved from a biosecurity control area or a transitional facility, or given a biosecurity clearance, the Director-General may, if he or she thinks fit, issue the permit.

...

(4) An import health standard issued under this section may apply to goods of a certain kind or description imported from—

(a) A country or countries specified in the import health standard; or

(b) Countries of a kind or description specified in the import health standard; or

(c) All countries; or

(d) A location or locations specified in the import health standard.

(5) When making a recommendation to the Director-General in accordance with this section, the chief technical officer must have regard to the following matters:

(a) The likelihood that goods of the kind or description to be specified in the import health standard may bring organisms into New Zealand:

(b) The nature and possible effect on people, the New Zealand environment, and the New Zealand economy of any organisms that goods of the kind or description specified in the import health standard may bring into New Zealand:

(c) New Zealand's international obligations:

(d) Such other matters as the chief technical officer considers relevant to the purpose of this Part.

[38] Compliance with the relevant IHS is relevant to the discretion to be exercised by an inspector appointed under the BSA when considering the clearance of risk goods under Part 3 of the BSA. The relevant provisions are ss 25 to 29 of the BSA which contain specific references to new organisms and suspected new organisms:

25 Goods to be cleared for entry into New Zealand

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

(2) No person may cause or permit any uncleared goods that are in a transitional facility or biosecurity control area to leave that facility or area, except—

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

(b) In accordance with the authority of an inspector, to be exported from New Zealand.

(3) Authority to move uncleared goods given by an inspector in accordance with this section, may be given subject to conditions.

26 Clearances

Subject to sections 27 and 28 of this Act, any inspector may give a clearance for the entry into New Zealand of any goods.

27 Inspector to be satisfied of certain matters

An inspector shall not give a biosecurity clearance for any goods unless satisfied that the goods are not risk goods; or satisfied—

(a) That the goods comply with the requirements specified in an import health standard in force for the goods (or goods of the kind or description to which the goods belong); and

(b) That there are no discrepancies in the documentation accompanying the goods (or between that documentation and those goods) that suggest that it may be unwise to rely on that documentation; and

(c) In the case of an organism, that the goods display no symptoms that may be a consequence of harbouring unwanted organisms; and

(d) That the goods display no signs of harbouring organisms that may be unwanted organisms; and

(e) There has been no recent change in circumstances, or in the state of knowledge, that makes it unwise to issue a clearance.

28 Restrictions on giving clearances

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

(2) Where any new organism is an organism for which—

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

(b) There is in existence a containment facility approved as meeting the standard set by the Authority; and

(c) The organism is able to go to that facility,—

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

[Emphasis added.]

28A Dealing with suspected new organism

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

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

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

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

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

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

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

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

[Emphasis added.]

28B Biosecurity clearance for certain new organisms and qualifying organisms

Section 28 does not apply to—

(a) a new organism that is subject to a conditional release approval granted under section 38C of the Hazardous Substances and New Organisms Act 1996; or

(b) a qualifying organism approved for importation for release with controls under section 38I of that Act.

29 Restricted organisms to be contained

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

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

(b) In accordance with the authority of an inspector, to be exported from New Zealand.

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

[39] Section 28(1) is crucial for present purposes. On its face, it provides a prohibition on the grant of biosecurity clearance “for new organisms”. Where ERMA has given approval to import the new organism into containment, the inspector’s authority is limited to authorising the movement of the new organism to an approved containment facility. Under s 28A, where an inspector has reason to believe that an organism may be a new organism, there are powers of seizure for the purpose of treatment or destruction, or to hold the item to enable the importer to apply to ERMA for a determination as to whether it is a new organism. Where any organism so held is declared by ERMA to be a new organism, there is an express prohibition on the grant of biosecurity clearance: s 28A(6). This confirms the approach adopted under s 28(1): the approval of new organisms is for ERMA.
[40] Section 28B of the BSA qualifies the blanket prohibition under s 28(1) against the giving of biosecurity clearance for new organisms in respect of two categories of organisms. The first is a new organism that has been approved for conditional release under s 38C HSNO. The second is a “qualifying organism” approved for controlled release under s 38I HSNO. We refer to qualifying organisms below but, for the present, it is sufficient to note that these qualifications to the prohibition under s 28(1) are limited to categories of organisms already approved by ERMA under HSNO for release.
[41] The Judge determined that s 28(1) did not apply to passenger organisms of the kind at issue here. He reasoned that the BSA provided a mechanism through s 22 and the issuing of an IHS to deal with the management of risks associated with goods such as the importation of honey. He placed particular emphasis on s 22(5), pointing out that MAF was required to consider whether the goods were likely to bring organisms into New Zealand and the effects those organisms might have on people or the environment. He observed that it would not necessarily be known whether P. alvei was in any particular jar of honey. He regarded this as supporting the argument that s 28(1) applied only where the purpose of the importation was to bring in the new organism in question. The Judge also noted that s 28A appeared to apply to the seizure of the organism in question rather than the goods (the honey) in which P. alvei might exist. And, reference was made to the distinction in s 28(1) between “goods that are or contain an organism specified in Schedule 2” of HSNO and security clearance “for a new organism”.
[42] We regret that we cannot support the Judge’s conclusion. The principal difficulty is the plain wording of s 28(1). We are unable to see how it can be read down in the way the Judge considered possible. First, the expression “new organism” is defined as having the same meaning as in HSNO. On MAF’s own application, ERMA has declared under HSNO that P. alvei is indeed a “new organism” for the purposes of HSNO and the organism has since been gazetted as such. Secondly, the legislature has seen fit to make special provision for biosecurity clearance for new organisms within the meaning of HSNO. The plain intention is that the approval of new organisms for importation and release is the responsibility of ERMA. Any new organisms not approved under any of the mechanisms in HSNO shall not be given biosecurity clearance. Any that have been approved under HSNO may only be cleared into New Zealand in accordance with the approvals given.
[43] Thirdly, we do not see an IHS issued under s 22 BSA as an alternative route for the approval of new organisms. It is a broadly drawn provision which may be applied to all risk goods whether they constitute an organism in themselves or may harbour an organism. Compliance with the relevant IHS does not automatically enable biosecurity clearance to be given. The requirements of s 27 are cumulative and all must be met. Critically, s 26 provides that a biosecurity clearance is also subject to s 28. The IHS itself recognises this in clause 8 which provides:

8. BIOSECURITY CLEARANCE

• 8.1 An inspector at the port of arrival shall inspect either the consignment or samples of the consignment.
• 8.2 Providing that the consignment meets the conditions of ELIGIBILITY and PART D ZOOSANITARY CERTIFICATION, the consignment may, subject to sections 27 and 28 of the Biosecurity Act 1993, be given a biosecurity clearance pursuant to section 26 of the Biosecurity Act 1993.
• 8.3 Consignments that do not meet all requirements of this import health standard may be reshipped or destroyed at the cost of the importer.

[44] We do not consider it to be outside MAF’s powers under s 22 to assess the risks of importing a new organism but it does so under the BSA and not under the special regime established by HSNO. However, from a practical point of view, we see little point in MAF carrying out a risk assessment for new organisms since it is prohibited by s 28(1) from giving biosecurity clearance for new organisms not approved by ERMA under HSNO.
[45] Fourthly, we accept Mr Boldt’s submission that if a new organism is thought to present risks to the environment or to health and safety, then those risks will be the same whether the new organisms arrive in this country as passengers in some other goods or whether they are imported in their own right. Given the strong emphasis in HSNO on environmental protection, the purpose of the legislation would not be met if HSNO could be bypassed for new organisms which are merely passengers.
[46] We agree with the Judge that it would not necessarily be known that P.alvei is in any particular consignment of honey but, on the accepted facts, it is inevitable that the organism will be imported into New Zealand in honey or other bee products sourced from Australia. In our view, s 28(1) must be interpreted consistently with the statutory purpose of preventing the introduction of new organisms into this country otherwise than with the approval of ERMA as the body given statutory responsibility for that task. We do not consider significant weight can be given to the distinction in s 28(1) between goods specified in Schedule 2 of HSNO and new organisms. The Schedule 2 prohibitions are discrete and are aimed at specified animals and plants. Finally, although we agree with the Judge that the power to seize suspected new organisms under s 28A is most naturally read as referring to the seizure of the new organism itself rather than the goods in which the new organism may be harboured, we do not see that the power should be so limited. Where a new organism is suspected to be contained within goods (as envisaged by s 27(c) and (d) BSA and by the definition of “risk goods” itself), there may be no practical alternative other than to seize the goods.
[47] Our conclusions are supported by an examination of the provisions of HSNO to which we now turn.

The legislative regime under HSNO

[48] The long title to HSNO states:

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

[49] The purpose and principles of the Act are set out in Part 2. Relevantly for present purposes, they are:

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 wellbeing and for the reasonably foreseeable needs of future generations.

...

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 of this Act, shall take into account the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects.

[50] The language in ss 4 and 5 is reminiscent of the language adopted in Part 2 of the Resource Management Act. There is a strong emphasis on the protection of the environment (which is widely defined) and the protection of health and safety. The focus is on preventing or managing the adverse effects of hazardous substances and new organisms. The protection function is emphasised in s 7 by the precautionary approach in cases where there is scientific and technical uncertainty. We accept, however, that the benefits of using a particular hazardous substance or new organism are also to be taken into account: s 6(e).
[51] The key provision for present purposes is s 25(1) which provides:

25. Prohibition 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 of this Act.

[52] On its face, s 25(1) provides an absolute prohibition on the importation of any new organism without the appropriate approval under HSNO. The question is whether, as the Judge concluded, this section can effectively be read down as relating only to cases where the purpose of the importation is to bring in the new organism in its own right as distinct from its incidental arrival as a passenger associated with the goods intended to be imported.
[53] To support the conclusion that the prohibition did not apply to the importation of new organisms as passengers, Mr Hancock referred to s 34(2)(g) which requires an application for approval of a new organism to include “the potential use for the organism”. He also drew attention to s 38(1)(a)(ii) and s 38C(1)(c) which require ERMA to consider whether the positive effects of the organism outweigh the adverse effects and also refer to “inseparable organisms” (defined in s 2(1) as meaning any organism which is unable to be separated from any other organism). These provisions, it was said, tended to support the view that the focus of approvals for new organisms under HSNO was on the importation of the new organism in its own right for a particular use. It was submitted that the importation of P. alvei was not the purpose of the importation of honey; the importation of P. alvei was not desired or sought; it was merely an incident of the importation of the honey which could not be avoided.
[54] Again, we are unable to accept that s 25(1) should be read down in this way. It is, we think, absolute in its terms. It would have been a simple matter to have excluded from s 25 a new organism which was an unwanted passenger if that had been intended by Parliament.
[55] Secondly, the HSNO legislation was passed for the specific purpose of managing the adverse effects of new organisms. To enable its provisions to be effectively bypassed in relation to new organisms which arrive as passengers would not give effect to that statutory intention.
[56] Thirdly, it is not correct to characterise the incidental bringing into the country of P. alvei as an unintended import. The existence of P. alvei is known and it is accepted to be inevitable that it will be introduced by the importation of honey from Australia. In that respect, it is quite different from the accidental introduction of, for example, an insect in a traveller’s luggage of which the traveller had no knowledge. Where the existence of the new organism is known, the importer of goods containing the new organism must be taken to have intended the importation of any new organism contained within those goods. Similarly, the importer in these circumstances must be taken to have intended the new organism to be “released” in New Zealand given the accepted inevitability of this occurring. It cannot have been Parliament’s intention that the application of HSNO would depend on whether the importer did, or did not, want to bring in the new organism in question.
[57] Fourthly, while we accept that the importation of new organisms may generally or usually be for the purpose of using them in their own right, with a weighing of costs and benefits, that is not always the case. Section 35 provides for the rapid assessment of risk for the importation of new organisms. It relates to any new organism other than a genetically modified organism. ERMA may approve an application under s 35 without controls where it is satisfied that the organism is not an unwanted organism as defined under the BSA and where ERMA is satisfied of the matters set out in s 35(2)(b). These criteria focus solely on potential adverse effects and do not require any weighing or balancing of positive effects.
[58] While we understand that ERMA has indicated that P. alvei may or may not be capable of assessment under s 35, the fact remains that the legislation permits new organisms to be assessed under this provision whether they are imported as such or are passengers with some other item. We observe too that if P. alvei could not be assessed under s 35 because it cannot satisfy the criteria designed to protect the environment as well as health and safety, then it would seem to be proper that the introduction of the new organism be assessed more fully under ss 38 or 38A.
[59] Fifthly, some assistance in interpreting the legislation is provided by s 38I which introduced new provisions to HSNO by the Hazardous Substances and New Organisms Amendment Act 2003. This section refers to “qualifying organisms” which are defined in s 2 as meaning “a new organism that is or is contained in a qualifying medicine or qualifying veterinary medicine”. Under ss 38I – 38L a mechanism is provided to enable the rapid approval for release of medicines that are or contain new organisms where there is little risk of the organism forming self-sustaining populations or causing any risk to humans or the environment. Under these provisions, there are restricted powers for ERMA to delegate the approval to the Director-General of Health (or, in the case of animal medicines, to the Chief Executive of the Ministry of Agriculture). We accept Mr Boldt’s submission that the existence of this special mechanism for imports of qualifying organisms (whether passengers or otherwise) indicates that they would otherwise have been subject to full scrutiny by ERMA. This is supported by material in the Explanatory Note when the amending Bill was introduced (at 20):

All organisms that were not present in New Zealand before 29 July 1998 are considered new organisms, even when they are naturally introduced to New Zealand or have arrived as accidental ‘hitchhikers’.

[60] Similar considerations apply to special emergency provisions under ss 49A – 49L in respect of agricultural compounds that are or contain a hazardous substance or new organism.
[61] We are satisfied that the importation of P. alvei in honey or other bee products must comply with the requirements of both the BSA and HSNO. The plain wording of s 28(1) BSA and s 25(1) HSNO as well as the broader analysis of the legislation we have undertaken supports this conclusion. That compliance with both enactments is required is further supported by s 142(1) HSNO (“[n]othing in this Act shall affect the requirements of the Biosecurity Act 1993 in relation to any organism”) and by s 97A HSNO. Under the latter provision, the relevant enforcement agency is the Chief Executive of the department of state responsible for the administration of the BSA. The relevant Chief Executive is the Director-General of MAF. The Director-General has responsibilities in terms of s 97A(1) to ensure not only that the BSA is enforced but also that HSNO is enforced. This dual responsibility emphasises the statutory intention that both enactments must be complied with where the importation of new organisms is involved.
[62] The respondent contended there was nothing to indicate that the scientists and other experts available to MAF would be any less rigorous than ERMA acting under HSNO when examining the actual or potential risks of the importation of P. alvei. We have no means of assessing the validity of that contention. The correct outcome must follow as a matter of statutory interpretation. In that respect, we observe that Parliament has deliberately given responsibility to ERMA under HSNO for the assessment of those risks. It must be assumed that Parliament did so for good and sufficient reasons.
[63] The respondent also submitted that great inconvenience would result if all importations of new organisms as passengers required approval under HSNO. It was suggested there might well be other potential new organisms contained in honey imports which could also require approval by ERMA. Some material in that respect was submitted to us post-hearing. However, the material is disputed and we disregard it for present purposes. Nonetheless we observe that if there were other known new organisms which might incidentally be imported in other products then, as we interpret the legislation, approval for them would be required from ERMA.
[64] We were told that ERMA supports the respondent’s contentions in this case although ERMA was not separately represented. In response to our inquiry, ERMA has indicated to the Court in a letter received after the hearing that, in these circumstances, it did not regard it as necessary to appear. There is, of course, no requirement that ERMA should do so and there is no suggestion it has acted improperly.
[65] While it is tempting to arrive at a solution by statutory interpretation which would overcome any perceived workability issues, it is not appropriate to succumb to that temptation unless we can properly do so within the ordinary canons of construction. We are not persuaded that we could do so in the present case. If, as the respondent contends, administrative or practical difficulties are likely to arise from our decision, then it is within the hands of Parliament to cure any such difficulties by statutory amendment.
[66] One final point made by the respondent was that New Zealand is required to comply with its international obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures (1995). Article 2 of this agreement provides that member states agree that measures taken to protect humans, plants or animals from risks arising from the entry of unwanted organisms are not to be applied in a manner which would constitute “a disguised restriction on international trade”, and that such measures are not maintained “without sufficient scientific evidence”. Our attention was drawn to s 22(5)(c) BSA and s 6(f) HSNO in terms of which international obligations are to be taken into account. There is nothing before us to suggest that any international obligation has been or would be breached by requiring P. alvei to be approved under HSNO in accordance with the requirements of New Zealand’s domestic legislation as we have found them to be.

Conclusion

[67] In summary, we conclude that honey or other bee products from Australia containing P.alvei may not be imported without both biosecurity clearance under the Biosecurity Act 1993 and an approval granted for new organisms under the Hazardous Substances and New Organisms Act 1996.
[68] It follows that the appeal is allowed. The appellant is entitled to costs against the respondent in the sum of $5000 plus usual disbursements. The interim order made by Simon France J prohibiting further importations of honey from Australia (other than Western Australia) is continued on an interim basis pending the further order of this Court.
[69] We will receive submissions from counsel on the form of relief to be granted in consequence of our judgment. Counsel are to confer and submit a joint memorandum within 10 working days from the date of this judgment. If agreement is not reached, the appellant is to file and serve a memorandum within the same period and the respondent within 10 working days after receipt of the appellant’s memorandum.

Solicitors:
Davys Burton, Rotorua for Appellant
Crown Law Office, Wellington