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New Zealand Pork Industry Board v Director-General of the Ministry of Agriculture and Forestry [2013] NZCA 65 (18 March 2013)

Last Updated: 27 March 2013


IN THE COURT OF APPEAL OF NEW ZEALAND
CA282/2012
[2013] NZCA 65

BETWEEN THE NEW ZEALAND PORK INDUSTRY BOARD
Appellant

AND THE DIRECTOR-GENERAL OF THE MINISTRY OF AGRICULTURE AND FORESTRY
First Respondent

AND THE CHIEF TECHNICAL OFFICER AND BIOSECURITY NEW ZEALAND
Second Respondents

Hearing: 28 November 2012

Court: Harrison, Stevens and White JJ

Counsel: F M R Cooke QC and J B Kaye for Appellant
C R Gwyn, K M Muller and H J Sims for Respondents

Judgment: 18 March 2013 at 10 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

  1. The appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

REASONS


Harrison and Stevens JJ [1]
White J (dissenting) [100]


HARRISON AND STEVENS JJ


(Given by Harrison J)


Table of Contents


Para No


Introduction

[1] In 2011 the Director-General of the Ministry of Agriculture and Forestry (the Ministry) produced new biosecurity standards, the Import Health Standards (the IHSs), lifting restrictions on importing raw pig meat from countries where a porcine disease known as Porcine Reproductive and Respiratory Syndrome (PRRS) is present. Introduction of the IHSs followed a lengthy process of consideration and consultation with interested parties.
[2] One interested party, the New Zealand Pork Industry Board (the Board), had objected to the Director-General’s proposal to introduce the standards throughout this process. At the Board’s request an independent review panel (the Panel) had reviewed the scientific evidence which the Ministry had relied upon to develop the IHSs and reported to the Director-General with its findings and recommendations. As a result he commissioned further work and an additional experts report. Following receipt and consideration of both, the Director-General decided to approve the new IHSs.
[3] The Board applied to the High Court to judicially review the Director-General’s decision. It contended that when approving the IHSs the Director-General had breached his obligations under s 22A of the Biosecurity Act 1993 relating to the status and his use of the Panel’s report. Williams J dismissed the Board’s application.[1] The Board appeals to this Court. An interim order made in the High Court restraining introduction of the new IHSs has remained in effect pending this Court’s decision on the appeal.

Background

(a) 2001–2009: Provisional IHSs

[4] In setting out the background narrative to the Board’s appeal we acknowledge the considerable assistance we have derived from Ms Gwyn’s summary of the relevant events. While it is unnecessary for us to replicate her detail, a reasonably full account of the process and its milestones will assist in understanding the issues.
[5] PRRS is, as Mr Cooke QC emphasises, a very destructive virus. It is highly contagious. New Zealand and Australia are two of the five countries in the western world known to be free of it. Ms Gwyn emphasises that in the period between 1995 and 2001 64,000 tonnes of fresh, chilled or frozen pig meat were imported into New Zealand from countries where PRRS was endemic but without any outbreaks of the virus here; and that New Zealand has long restricted and continues to restrict the import of live pigs and pig semen, which are the principal ways of spreading PRRS.
[6] In 2001 the Ministry learned of a scientific study raising the possibility that PRRS may be transmitted by feeding pigs raw PRRS infected meat. It responded by introducing provisional IHSs requiring the cooking or treatment of all imported pig meat from countries where PRRS is known to be endemic. The IHSs were adopted pursuant to the World Trade Organisation’s 1995 Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS agreement). New Zealand is a signatory.
[7] As Ms Gwyn notes, the SPS agreement balances two important but potentially conflicting public interests – one in free trade between nations and the other in the ability to impose measures to ensure biosecurity. While the Ministry was empowered to introduce the IHSs as a provisional precautionary measure, the SPS agreement required it to undertake a detailed risk assessment within a reasonable time. The Ministry had to be satisfied that the measures remained necessary for New Zealand biosecurity while having the least trade restrictive option available.
[8] In accordance with the treaty requirements, the Ministry then embarked upon a comprehensive process of assessing the risks inherent in allowing importation of raw pig meat, starting with a draft import risk analysis (IRA) completed in December 2001. A complete IRA was prepared in 2006 after consultation with national and international experts. The report was comprehensive, running to 51 pages, and was undertaken in accordance with the Ministry’s statutory obligation to consider the likelihood that imported commodities may harbour organisms and their effect on New Zealand’s people, economy and environment.[2] The authors estimated there was a non-negligible risk of the PRRS virus in imported pig meat for small, non-commercial or marginally commercial breeding herds that were not complying with statutory requirements or safe practice.
[9] Detailed reviews followed, to which national and international experts again contributed. On 12 November 2007 the Ministry issued for public consultation draft IHSs for pig meat and pig meat products from the European Union, Canada, the USA and a Mexican state. The draft IHSs proposed that cuts of raw meat be imported into New Zealand providing they were packaged as consumer ready cuts of less than 3 kilograms, did not include minced meat, the head or neck, and had major lymph nodes removed.
[10] The Board objected to the draft IHSs on the ground that the use of kitchen and commercial waste as pig feed – particularly in the significant amateur pig holding sector existing in New Zealand – was widespread. In the Board’s view, it was highly speculative for the Ministry to propose that confining imports of particular cuts of meat would meaningfully prevent infected meat reaching a New Zealand pig. In its view, a very detailed further analysis was required.
[11] In its objection to the draft IHSs the Board placed particular reliance on a quantitative risk model developed by Dr Neumann and Professor Roger Morris in 2007 (the 2007 Neumann model). Its effect was to question the reliability and validity of the Ministry’s IRA. Dr Neumann later played a significant part in the process of developing the IHSs.
[12] A public consultative round followed. The Board participated actively. Submissions were made for and against the draft IHSs. Following a further review which was released in March 2009 the draft standards were finalised with some minor changes and released on 7 April 2009, also pursuant to s 22, as “Provisional Import Health Standards”.

(b) Statutory framework

[13] It is appropriate at this stage to introduce the relevant statutory provisions governing the introduction of IHSs. An IHS is defined in this way:

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.

(1A) An import health standard issued under this section applies to goods the importation of which involves, or might involve, an incidentally imported new organism.

(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.

(3) Nothing in this Act obliges the Director-General to have an import health standard in force for goods of any kind or description if, in the Director-General’s opinion, the requirements that could be imposed on the importation of those goods would not be sufficient to enable the purpose of this Part to be met if the importation of those goods were permitted.

(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, on 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.

(6) Before making a recommendation to the Director-General on the issue or amendment of an import health standard, the chief technical officer must, unless the standard needs to be issued or amended urgently, or unless the chief technical considers that the amendment is minor, consult with those persons considered by the chief technical officer to be representative of the classes of persons having an interest in the standard.

(7) The consultation may be on the import health standard or on a document that analyses or assesses the risks associated with the goods or class of goods to which the goods belong.

(8) Before making a recommendation to the Director-General in accordance with this section the chief technical officer must give notice of the intention to make the recommendation to the chief executive of every department of State whose responsibilities for natural resources or human health may be adversely affected by the issue, amendment, or revocation of the relevant standard.

(9) The Director-General must maintain a register of the import health standards (as amended from time to time) issued under this section.

(10) The register must be available for public information and inspection at the office of the Director-General during normal office hours.

(Emphasis added.)

[14] Section 22A(3) was introduced in 2008.[3] Its genesis was a decision of this Court in National Beekeepers’ Association of New Zealand v Chief Executive of the Ministry of Agriculture and Forestry.[4] Its terms are central to the Board’s appeal and are set out as follows:

22A Process for independent review panel to be established

(1) The Director-General must, by notice in the Gazette, set out the process by which an independent review panel is to be established to review whether, in developing an import health standard, there has been sufficient regard to the scientific evidence about which a person consulted under section 22(6) has raised a significant concern.

(2) The notice required by subsection (1) must cover the following matters:

(a) the criteria for setting up an independent review panel; and

(b) how the Director-General will appoint an independent review panel, including the knowledge and experience required for appointees; and

(c) the procedures to be followed by—

(i) a person eligible to seek a review under subsection (1); and

(ii) an independent review panel, in undertaking its review; and

(d) the reporting requirements for an independent review panel.

(3) The Director-General must receive any report from an independent review panel and, as soon as is reasonably practicable, determine the issue in dispute after taking into account the findings and recommendations of the independent review panel, giving reasons for that determination.

(4) The Director-General must issue a notice under subsection (1) not later than 1 July 2008.

(Emphasis added.)

(c) Independent Review Panel

[15] In May 2009 the Board requested the Director-General to appoint a panel in accordance with s 22A and identified nine contentious issues for its consideration. The Board’s objective was either retention of the 2001 provisional IHSs or commencement of a new IRA. The then Director-General, Murray Sherwin, accepted the Board’s request and in September 2009 he issued terms of reference for an independent review panel. Among other things the Panel was requested “... to consider whether the Ministry had had sufficient regard to the scientific evidence in the following areas [being those raised by the Board]”:
[16] The Panel was chaired by the late Helen Aikman QC. The three other members were international experts in the field; two of them had been nominated by the Board. The Panel sat between November 2009 and March 2010. It convened at least 14 telephone or video conferences and the members corresponded extensively by email. Both the Board and the Ministry made submissions. Included in the Board’s submissions was the 2007 Neumann model.
[17] The Panel issued its report on 21 March 2010. Its 29 recommendations were summarised by Williams J in detail in the High Court.[5] It is unnecessary for us to consider the Panel’s recommendations in similar detail. We note the Panel’s conclusion that:

... in most but not all areas MAF fully considered the science available, and ... applied the recognised international standards for risk assessments. In some areas, however, there have been developments since MAF undertook the import risk assessment on which the standards are based.

[18] Mr Cooke describes the report as highly critical of the Ministry on most issues in dispute. While we accept that the report made certain criticisms in the context of its consideration of each of the nine areas identified by the Director-General for its consideration, we do not accept that broad description. We do, however, note two of the Panel’s specific conclusions because they convey its approach to its task.
[19] First on topic (e), the Panel found deficiencies in the Ministry’s assessment of the likelihood of infected meat being fed to a New Zealand pig. Principally they were that the Ministry had inappropriately reduced the percentage of pork discarded to three per cent; it had failed to assess properly and take into account commercial disposal by entities such as supermarkets; it had failed properly to assess disposal of meats for reasons such as sell by dates being exceeded or of where meat would be disposed; there was no reliable estimate of the quantity of uncooked pig meat being discarded; and there were data gaps on the extent of waste feeding with new data suggesting it was common.
[20] Second, on topic (i), the Ministry’s overall treatment of the issues, the Panel concluded that aspects of the scientific evidence were not given due regard by the Ministry. In particular the Panel noted that the Ministry’s modus operandi was not conducive to achieving agreement; that the Ministry’s resources appeared to be limited; its terminology was not adequately defined and there were a number of aspects for which no evidence was available; that it had made assumptions where uncertainties existed; that international experts should be employed further; and there was “scope for a more open minded approach”.
[21] On the other side of the ledger, the Panel rejected the Board’s criticisms of the Ministry’s 2006 IRA. Nevertheless, it considered that further work may be useful, to be carried out in cooperation with the local industry by a joint technical working group. The Panel forecast that the additional work would not need to be extensive and that the existing IRA may not change.

(d) 2010–2012

[22] In response to the report, the Ministry developed work streams for each area where the Panel identified further data might be collected. A meeting with stake holders, including the Board, was held to obtain feedback on the Panel’s report and the Ministry’s proposed work programme. The Ministry also conferred with three of the panel members by teleconference. One member, Professor Katharina Stärk, was commissioned to conduct further work on the 2007 Neumann model.
[23] On 1 September 2010 the then Acting Director-General, Steve Stuart, issued a document headed “Director-General’s Decision on Pork Independent Panel Report”. Copies were provided to all stakeholders including the Board. While it was not given particular prominence in counsel’s submissions, we regard it as a significant document. We refer to these aspects:
[24] The EWG commenced its work in September 2010. It was chaired by Matthew Stone, a senior Ministry employee, and comprised a spectrum of nominated experts. Included among them was Dr Neumann. He was the Board’s nominee.
[25] On the final day of the EWG’s deliberations, Dr Neumann presented a restructured version of his 2007 model (the 2010 Neumann model). On 7 November 2010 the EWG reported to the Ministry that no consensus had been reached. In accordance with the Director-General’s 1 September decision, the Ministry then engaged two other experts, Drs Francisco Zagmutt and Huybert Groenendaal, to review the 2010 Neumann model.
[26] On 14 December 2010 the two reviewing experts produced EpiX Analytics’ report including a model (the Zagmutt-Groenendaal model). In summary, the experts concluded that, first, the 2010 Neumann model submitted to the EWG contained some incorrect assumptions and calculations but, second, the Ministry’s revised version of that model had understated the risk. It was necessary for the experts to undertake their own independent revision of both works. In the result, they produced a corrected version of the 2010 Neumann model.
[27] The experts concluded as follows:

... the amended model we present here reports a mean of 0.0038 PRRSv primary introductions per year, which translate into an average of 1,227 years between outbreaks, while always predicting non-negative expected outbreaks/year ...

Some caution is required to correctly interpret the results of a model of this nature. For example, interpretations such as “There will be a PRRSv introduction after 1,127 years” or “there is a 0.0038 probability of at least 1 PRRSv primary introduction for next year” are wrong. However, we can say that under the current conditions assumed in the model we could expect an average of roughly 1,200 years between PRRSv introductions resulting in outbreaks (due to imported pig meat) in New Zealand, and that given the uncertainties in the model we are 95% confident that this time ranges from approximately from 52 to 6,150 years”. It is important to point out that the model estimates the probability of an outbreak on any given year, and not for next year. ...

From this work, it is our belief that the current model provides a conservative estimate of the risk of introduction of PRRSv into New Zealand via the importation of fresh pork meat ... and therefore any further modelling work or collection of new evidence should only be considered if either the current risk is not acceptable for the decision maker, or if new evidence will show that in fact the model underestimates the risk. In our experience, the former is possible but the latter is less likely given all the time, auditing, and discussions that have revolved around this particular risk assessment model.

[28] On 10 April 2011 the new Director-General, Wayne McNee, issued what he described as a final decision under s 22A(3). His decision paper ran to 34 pages. He had considered some 900 pages of evidence. He concluded that the Ministry had taken “appropriate account of the available science”. At the same time as delivering his decision, as noted, the Director-General issued the proposed IHSs under s 22. On 13 April 2011 the IHSs were communicated to the Board.
[29] Some aspects of the Director-General’s 10 April 2011 decision bear elaboration. When reviewing the recent background, the Director-General referred to these events following receipt of the Panel’s report:

... and the (then) Director-General agreed to a programme of work in response to the report. The major component of work was an updated quantitative risk analysis, building on the earlier analysis commissioned by NZPork (Neumann et al, 2007) and developed with the assistance of an Expert Working Group (EWG) of experts nominated by domestic and international stakeholders.

That work programme has now been completed. The development of the quantitative risk model has been a long process involving several levels of peer review, including through the EWG process, and various structural changes to incorporate recommendations. The model described in the report of the expert consultants, EpiX Analytics LLC (an independent consultancy specialised in quantitative risk analysis), is accepted by MAF as “fit for purpose” to support a decision on whether import health standards issued under the Biosecurity Act section 22 provide for effective management of biosecurity risk. The model supports the conclusions of MAF’s earlier qualitative risk analysis in that respect. The model reports a mean of 0.0038 PRRS virus primary introductions per year if the importation of pig meat in the proposed consumer-ready form were permitted. This model output can be considered to be equivalent to an average of 1,227 years between outbreaks, given the current conditions and parameters assumed in the model. The expert consultants EpiX Analytics have offered their view that the model provides a conservative estimate of risk, in that the selection of parameters for several variables are likely to over-state the risk.

[30] Then, under the heading “Matter in Dispute” the Director-General said this:

The matter in dispute can be described at two levels.

Overall, the matter in dispute is whether MAF has taken appropriate account of the available science in determining that the provisional import health standards provide for effective management of biosecurity risk, considering the legal obligations of Section 22(5) of the Biosecurity Act 1993.

In detail, the matters in dispute are effectively summarised as each of the individual matters in the terms of reference MAF established for the Panel. These are referred to in the terms of reference under the following headings:


1. Scope of the standards

2. Virus levels in imported meat

3. Impact of changes in volume of trade

4. Likelihood of infection

5. Knowledge of New Zealand industry, and consequent spread risk

6. Relevance of quantitative models

7. Overall assessment of risk

[31] The Director-General then addressed each of the Panel’s seven recommendations on the areas of concern which have been referred to. He noted that no particular decision was required on some recommendations as they did not directly relate to the IHSs; on others, he summarised in detail the further work undertaken by the Ministry in response to a particular recommendation, and made findings. This was quintessentially an evaluative exercise, necessarily addressing each of the concerns raised by the Board and on which the Panel had made recommendations.
[32] When discussing the overall assessment of risk, the Director-General concluded as follows:

Despite the shortcomings of the original Neumann quantitative model, MAF adopted the underlying structure of this work commissioned by NZPork in order to aid domestic stakeholders’ understanding of this modelling approach.

MAF’s revised model was subsequently subject to review by the EWG. As recommended by the Panel, the members of the EWG were named and agreed by MAF and stakeholders, and included representatives nominated by the European Union, the Canadian Food Inspection Agency, Federated Farmers of New Zealand, NZPork, NZ Veterinary Association Pig Veterinary Society, Freshpork NZ, Australian Pork, and the National Pork Producers Council (USA). Expert consultants from EpiX Analytics were also included in the EWG as independent experts participating at the request of MAF.

[33] The Director-General further noted that:

The EWG process was reasonably efficient and effective in drawing out expert opinion relevant to the risk question. Some new scientific information on peak viraemia was presented. Expert opinion varied on the interpretation of this information. Polarised views on some other key issues were encountered early on and did not change through the process. The polarisation was particularly evident on some aspects other than the risk model under consideration, such as whether the empirical evidence of history could be interpreted as indicative of low risk, and whether a domestic culture of waste-feeding and poor compliance represents a justification for import restrictions. The discussion returned to these two aspects repeatedly.

[34] The Board’s challenge to the High Court’s rejection of its application for judicial review focuses squarely on the terms of s 22A. The Board claims that when deciding to approve the IHSs the Director-General failed first to resolve the issues in dispute as required by s 22A. Instead, it says, the Director-General determined completely different issues based on different material and in a manner which was inconsistent with the statute.
[35] In the result, the Board claims that the Director-General’s decision to impose the new IHSs relied on an invalid determination and the Ministry’s related modelling of the risk of PRRS was not made in accordance with the law and was the product of procedural impropriety. In support of the Board’s claim, Mr Cooke relies upon three particular allegations of failure to comply with s 22A and additional deficiencies.

Issues

(a) Failure to comply with s 22A

(i) Issue in dispute

[36] First, Mr Cooke notes that s 22A(3) requires the Director-General after receipt of the Panel’s report to “... determine the issue in dispute”. Mr Cooke submits that the issue in dispute was in fact the series of nine issues which the Director-General had specifically referred to the Panel for consideration. He characterises them as having the composite effect of enquiring whether development of the IHSs through the IRA had sufficient regard to the scientific evidence about which the Board had raised a significant concern.
[37] What Mr Cooke says the Director-General actually determined was whether the Zagmutt-Groenendaal model constituted a sufficient IRA to meet the Panel’s criticisms. However, that was additional research and was not the subject of the s 22A determination, and the model had not been subjected to the statutory review procedure. Additionally, Mr Cooke says, the Director-General’s determination failed to address the issues which had been reviewed by the Panel as required by s 22A – namely whether the Ministry’s IRA supporting the IHSs had had sufficient regard to the scientific evidence.
[38] In support of this submission Mr Cooke challenges Williams J’s findings that:

[137] Here, NZPIB’s attack appears to be that MAF’s over reliance on the Zagmutt and Groenendaal model meant it never answered the question in Issue (i) or indeed in any of the other questions.

[138] I do not think that proposition is correct. What actually happened was that the Panel pointed out a number of deficiencies in MAF’s science and MAF spent a year remedying that (as suggested by the Panel) before handing the matter (together with the new work) on to the Director-General for final determination. By that time the new work had pushed the debate forward. It is to be remembered also that the Zagmutt and Groenendaal model was not entirely new work. It had built on the original Neumann model that had been before the IRP, and then on Neumann’s subsequent iteration provided right at the end of the EWG’s work.

[39] While accepting the Judge’s point that the Ministry was required to undertake more work as a result of the Panel’s report, Mr Cooke says the Director-General still remained under an obligation to determine the s 22A issues in favour of the Board – the party which had been consulted and had raised significant concerns – and for the IRA to be substantially reviewed. In argument Mr Cooke emphasised that in making his s 22A(3) determination the Director-General was obliged to disregard the Ministry’s further work, which he characterises as being necessary to rectify the deficiencies exposed in the Panel’s report.
[40] In this respect Mr Cooke also challenges Williams J’s finding that:

[144] Generally speaking the problems identified by the IRP were information gaps in MAF’s analysis rather than wrong interpretations of settled scientific facts. The focus of the IRP’s recommendations was therefore to fill the gaps identified. The Panel’s recommendations in Issue H on quantitative risk models are an example of this. While it may have been possible in a different kind of debate under s 22A for the Director-General to simply resolve the debate on the papers as it were, either by following an IRP recommendation or rejecting it, that was not possible given the IRP’s report in this case. The Panel said in most areas (but especially in modelling where input variables could have a multiplier effect on risk quantification) the Director-General needed to do more work. It is hard to see how he could have done anything but undertake new research and engage in new processes if he was to properly address the findings and recommendations of the IRP. By convening the EWG and, when that process failed to find consensus, undertaking his own modelling work, the Director-General was doing exactly what the IRP contemplated.

[41] Before addressing Mr Cooke’s submission, we record that the Director-General’s decision delivered on 1 September 2010 appeared to determine “the issue in dispute” in terms of s 22A(3). It was expressed as such and gave reasons in support.
[42] In essence, acting on the CTO’s advice, the Director-General determined that the Panel had correctly concluded that the Ministry had not taken sufficient regard of the scientific evidence in some respects when developing the draft IHSs. In substance, if not in form, this was an acceptance that some of the questions raised by the Board before the Panel were justified. In Mr Cooke’s terms, they were findings made in the Board’s favour on disputed issues.
[43] The Director-General decided that further work should be carried out in material areas recommended by the Panel. He gave the Board an opportunity, which it accepted, to participate. Its nominee, Dr Neumann, became a member of the EWG. The Board did not protest at any stage. The CTO’s misunderstanding – that a further determination on “the issue in dispute” was necessary – does not affect the legal status of the 1 September 2010 decision.
[44] In argument, in answer to questions from the Court, Mr Cooke accepted that the Board would be unable to maintain its challenge on this ground if the Director-General had followed a two stage decision making process – of accepting the Panel’s finding and recommendations and directing further work. He conceded that such a process would answer his proposition that when making a s 22A(3) determination the Director-General could not take into account subsequent work designed to cure any deficiencies identified by the Panel. It now appears that the Director-General did in fact follow that two stage process before making his final decision to issue the IHSs. However, we emphasise that the Panel’s report cannot and does not bind the Director-General when making his final decision.
[45] Despite this provisional view, we must determine the appeal in accordance with counsel’s argument. Our starting point when considering Mr Cooke’s submission is found in Part 3 of the Act. Section 16 states that its purpose is to “provide for the effective management of risks associated with the importation of risk goods”. By definition, risk goods are “... any organism ... that ... it is reasonable to suspect ... contains an organism that may cause unwanted harm to natural and physical resources or human health in New Zealand”.[6] It is common ground that raw pig meat falls into that category. What is significant in s 16 is its recognition that the risks must be effectively managed, not that risk goods cannot be imported.
[46] In keeping with this governing provision:
[47] It is axiomatic that ss 22 and 22A must be read together. In combination, they place the CTO in the primary role of instigator and advisor on IHSs. The Director-General assumes an independent decision making function on whether to accept a recommendation from the CTO. The regime superimposed on this process in 2008 was designed to provide for an independent and expert review of the relevant scientific evidence used when developing an IHS where a consulted party raised a significant concern. A review panel’s work, in the form of its findings and recommendations, constitutes a factor to be taken into account by the Director-General when determining the issue in dispute.
[48] In our view, the Panel’s primary function is, as its name suggests, investigatory and advisory. It is to conduct an expert and substantive review of the evidence, and then make findings on whether there has been sufficient regard to the scientific evidence on which a significant concern has been raised together with recommendations.
[49] Section 22A does not constitute the Ministry and the consulted party which has raised a significant concern about the Ministry’s work as formal protagonists whose dispute must be resolved in favour of one or the other by the Director-General. The provision does not convert the review mechanism into a dispute resolution process, with the Director-General acting as adjudicator. The Panel may, or may not, achieve a consensus between the Ministry and the consulted person who has raised the points of significant concern but that is not a statutory requirement. Section 22A does not provide a jurisdictional foundation for the Director-General then to make findings in favour of a participant, as Mr Cooke suggests.
[50] In this case the Board and the Ministry were not in dispute. The Board is an industry stakeholder and, as Ms Gwyn submits, has a partisan interest. Its judgment on risk tolerance is influenced by its partiality.
[51] By contrast, neither the Ministry nor the Director-General is a stakeholder. And the Ministry does not have a partisan interest. The Director-General occupies a different role. He or she is a decision maker in terms of both ss 22 and 22A(3). Those decisions are informed but not dictated by the Panel’s findings and recommendations.
[52] Our construction is based on the wording and context of s 22A. Section 22A(3) obliges the Director-General to receive a panel report and determine “the issue in dispute” after taking account of its findings and recommendations. That is the only statutory reference to “the issue”. Implementation of this process is triggered by the raising of a “significant concern” about “sufficient regard to the scientific evidence”. We accept that the “significant concern” will provide the focus for the Panel’s review, as happened here. But that concern or concerns does not define or constitute “the issue in dispute” or confine the scope of the Director-General’s determination.
[53] By reading the section as a whole, this reference to “the issue in dispute” must relate back to s 22A(1) which encapsulates the purpose for which a panel is to be established; that is, to review whether the Ministry had “sufficient regard to the scientific evidence” when developing an IHS. “The issue in dispute” is not whether the Board was right or wrong. Determination of that question would serve no purpose for the Director-General who is charged with a range of statutory responsibilities to which the issue he decides on the sufficiency of regard to scientific evidence when developing an IHS is directly relevant, particularly under s 22(5). The establishment of a panel under s 22A cannot be permitted to hijack or derail the statutory process under s 22 for the development of an IHS. The s 22A panel process regarding a matter of scientific evidence is rather complementary to the broader task of issuing an IHS.
[54] Mr Cooke’s submission that the Director-General was bound to decide each of what he says are the nine issues would be a pointless exercise. Assuming that course was adopted here, the Director-General would have to construe whether the Panel’s conclusion on each issue amounted to a finding for or against the Board. Arguably he would have to make his own decision on that point which may expose him to review.
[55] Even if the Director-General did undertake that exercise, and reached a conclusion in favour of the Ministry or the Board based upon who won the most issues, the obvious question arises: what purpose that would serve? What would the Director-General be expected to do as a consequence? Adopting a materiality test, his evaluation may lead him to conclude that none of the issues on which the Board succeeded was ultimately relevant to his statutory responsibilities. Parliament cannot possibly have intended that the Director-General embark on such an exercise.
[56] Mr Cooke’s submission proceeds on the misconceived premise that the Director-General’s identification of the terms of reference for the Panel’s review, formulated in accordance with cl 6 of the Gazette Notice as required by s 22A(1), constituted “the issue in dispute” in terms of s 22A(3). Paragraph 15 set out the purpose of the review. Expressed in terms of s 22A(1) it stated:

The Panel is appointed to consider whether MAF, in developing the provisional import health standards, had sufficient regard to the scientific evidence about which the Board has raised a significant concern. The Panel should assess whether MAF’s treatment of the issues, given all the evidence, was reasonably open to it, and whether there is a reasonable chain of logic linking the science to the provisional import health standards.

[57] Paragraph 18 then specified the “issues to be considered by the Panel”. However, while describing them as issues, the terms of reference specifically requested the Panel to consider whether the Ministry had had sufficient regard to scientific evidence “in the following areas”. They were the nine areas of significant concern raised by the Board. However, the Director-General’s request that the Panel review the evidence in nine specific areas did not have the effect of elevating or converting those specific areas into “the issue” within s 22A(3). They were no more than particulars of the Board’s “significant concerns”.
[58] In this respect it follows that we disagree with Williams J’s finding that:

[130] I accept that s 22A is designed to provide a process of scientific inquiry into issues raised by a stake holder. It is, as NZPIB says, those issues that must be the focus, not any reformulation or recasting by MAF. IRP inquiries must be about science and they must be about the scientific issues raised by the relevant stakeholder as a matter of significant concern to it. Section 22A(1) is explicit about that. There should not, in my view have been an attempt to step back and recast the debate. The statement of an overall issue both in the terms of reference and in the advice paper over-stepped the disciplined line required to be maintained by s 22A.

The Judge did, however, follow this statement with a finding that any harm done should be seen as a “technical misstep” only. It was rectified by the Director-General’s addressing each of the issues raised by the Board.[8]

[59] In summary, the Panel’s review, findings and recommendations constitutes one step – a most important step – in the process of developing and issuing an IHS. However, as ss 22 and 22A recognise, that process is dynamic or evolutionary. Otherwise there would be no point in the Panel making recommendations. The Panel’s work would be meaningless if, in making his determination on the issue in dispute and his consequential decision to issue the IHSs, the Director-General ignored steps taken to implement the Panel’s recommendations.
[60] The statutory responsibility for developing and implementing the IHSs under s 22 remains with the Director-General throughout. The Panel’s participation did not stop the clock or oblige the Director-General to restart the process. In our judgment, the process adopted by the Director-General here of considering the Panel’s findings and taking account of and implementing its recommendations within the overall framework of deciding to issue the IHSs accorded with the statutory requirements.

(ii) As soon as reasonably practicable

[61] Second, Mr Cooke submits that the Director-General breached his obligation under s 22A(3) to “... receive [the Panel’s] report and, as soon as reasonably practicable, determine the issue in dispute ...”. He relies on the fact that the Director-General’s determination was made one year after the Panel delivered its report. He says that in all the circumstances the Director-General did not determine the issue in dispute “as soon as reasonably practicable” – that is, as soon as is feasible to do so in the circumstances.[9]
[62] Mr Cooke challenges Williams J’s adverse finding on this argument as follows:

[121] No specific timeframe is given in s 22A(3). I am sure that was an intentional omission. In the present case the Director-General could not be in a position to make a determination until after the six to nine month period of gap filling work had been completed as recommended by the IRP. Equally self evidently, the imprecise and open ended nature of the calculations the Director-General is required to make under s 22A suggest that this kind of delay is contemplated by the phrase “as soon as reasonably practicable”. That phrase must be able to accommodate a science-based inquiry about future risk that sometimes, as here, will produce more questions than answers.

(Footnotes omitted.)

[63] Mr Cooke says that the period of time referred to in s 22A(3) cannot contemplate a six to nine month period of what he calls “gap filling work”. Such a delay was only necessary if the Panel’s findings were accepted. It was not the amount required to remedy the deficiencies of the issue in dispute to be determined in favour of the consulted party. It is the amount of time required to determine whether there are such deficiencies.
[64] We reject this submission. On analysis, it requires acceptance of Mr Cooke’s underlying premise that the Director-General’s timing obligation is governed in turn by his primary obligation to limit himself to a dispute resolution function. The Panel’s report made 29 recommendations, as we have noted, on a wide range of topics. For example, it proposed changes to the process by which IHSs are developed, emphasising that it should take place within a more collegial framework by using experts from key stakeholders in the industry and government. The Panel concluded that the Ministry had adequately considered most but not all of the scientific evidence. Recommendations were made on addressing gaps in data and carrying out additional modelling work.
[65] The nature of the Panel’s report reflected the complex and necessarily science-based inquiry that was needed. Moreover, we accept that the Director-General’s task was complicated by what Williams J aptly described as the “wide ranging and discursive [nature of the report], posing more questions than it answers”.[10]
[66] The phrase “as soon as reasonably practicable” must be construed within its particular circumstantial context. It is primarily a fact orientated obligation. It is necessary to interpret the words in that way if effect is to be given to Parliament’s intention to allow for a robust independent check of the type carried out by the Panel while also providing the decision maker with sufficient information to make a determination under s 22A(3) in a timely manner.
[67] Apart from a general submission that the time taken by the Director-General to make his determination was outside the timeframe contemplated by s 22A(3), Mr Cooke does not identify a single respect in which the Director-General failed to act expeditiously following receipt of the Panel’s report. In particular, Mr Cooke does not point to any area where the Director-General unnecessarily commissioned extra work or wasted time. Given the nature and intensity of the Board’s objection to the provisional IHSs, it cannot complain that the Director-General undertook a further and necessarily time consuming review of all the relevant scientific evidence following receipt of the Panel’s report.
[68] We are in no doubt that in the circumstances the Director-General acted “as soon as reasonably practicable” after receiving the Panel’s report when making a determination on the issue in dispute. We add that, even if Mr Cooke had established what we will call a timing breach by the Director-General, it would not have been sufficient to warrant this Court invoking its discretionary power of review.

(iii) Failing to address the Panel’s findings

[69] Third, Mr Cooke submits that the Director-General erred in failing in his decision to actually set out or otherwise address the Panel’s findings which are critical of the Ministry’s risk assessment work. This is despite the fact that the Director-General’s decision memorandum is of some length and recites the Panel’s formal recommendations. Mr Cooke says that the Director-General simply failed to address the Panel’s criticisms.
[70] Mr Cooke accepts that the Judge was entitled to take into account the affidavit sworn by the Director-General in the High Court to the effect that he had read all the material including the text of the Panel’s report.[11] However, he says, a court may only take into account a decision maker’s affidavit where it explains the reasons for a decision. Where a formal decision paper is adopted by the decision maker, and the paper fails to comply with the statutory requirements, the deficiency is not saved by an affidavit to the effect that the mandated material has nevertheless been read. The statute requires something more of the Director-General and the affidavit does not on its face cure the deficiency.
[71] In our judgment, s 22A(3) does not require the Director-General to specifically address any criticisms made by the Panel when making his determination. We repeat that he does not perform an adjudicative function. His statutory obligation is to receive – and thus take into account – the Panel’s report and recommendations and then determine the issue in dispute, with reasons. He is not obliged to specifically address any or all of the Panel’s specific criticisms. Taken to its logical conclusion, acceptance of Mr Cooke’s argument would open the Director-General’s decision to judicial review on the ground, for example, that he failed to identify a criticism, let alone address it. That would lead to unworkability, even absurdity.
[72] Mr Cooke has not identified any failure by the Director-General to take any or proper account of the Panel’s findings and recommendations. All the evidence points in the opposite direction. This argument must fail. We would add that if the Director-General’s decision made on 1 September 2010 was his determination in terms of s 22A(3), it is beyond argument that he specifically addressed any criticism made by the Panel.

(b) Additional deficiencies in decision paper

[73] Mr Cooke separately submits that the Director-General’s decision paper did not accord with the Act. First, he says that it wrongly reformulated the issues in dispute so that they were not the issues which had been established under s 22A through the terms of reference but were different questions on more favourable terms to the Ministry. He relies on Williams J’s finding[12] to which we have already referred, and the Director-General’s statement in his decision paper as follows:

The matter in dispute

The matter in dispute can be described at two levels.

Overall, the matter in dispute is whether MAF has taken appropriate account of the available science in determining that the provisional import health standards provide for effective management of biosecurity risk, considering the legal obligations of Section 22(5) of the Biosecurity Act 1993.

In detail, the matters in dispute are effectively summarised as each of the individual matters in the terms of reference MAF established for the Panel. These are referred to in the terms of reference under the following headings ...

[74] We have already answered this submission in setting out our disagreement with Williams J’s finding and our rejection of Mr Cooke’s argument about the meaning of the phrase “the issue in dispute” in s 22A(3).
[75] Second, Mr Cooke submits that the Director-General simply failed to determine two of the issues in dispute, in breach of s 22A(3). He identifies them as the Panel’s findings on topics (a), relating to biosecurity risks other than PRRS potentially involved in allowing raw pig importation, and (g), relating to the importance and likelihood of aerosol and “area” spread of PRRS. On the first, Mr Cooke says that the Panel reported it had insufficient time to address the question; and on the second, the Panel is said to have made findings adverse to the Ministry.
[76] Again we have already rejected this submission by our construction of the phrase “the issue in dispute”.

(c) Procedural impropriety

[77] Mr Cooke submits that the Director-General’s decision should be set aside for procedural impropriety. He says, it was improper for the officials whose work was the subject matter of the issues in dispute to prepare the decision paper which determined the issues in dispute, particularly given the criticisms of their work made by the Panel; and that the decision paper which they prepared for the Director-General determined all the issues in dispute in their favour. He identifies the CTO, Mr Knox, and three other Ministry officials who worked with him at various stages in developing the IHSs both before and after the Panel’s report and recommendations.
[78] Mr Cooke relies on the Panel’s criticisms of these officials, or more particularly of their work, that they had had insufficient regard to the scientific evidence; and of the impartiality of their work and failure to facilitate consensus. Nevertheless, Mr Cooke says, these very officials then developed the Ministry’s response to the Panel’s findings leading to the Director-General’s determination of all the issues in dispute in their favour. He emphasises that two of the officials, Messrs Pharo and Cobb, led the work on the new IRA model which became the Zagmutt-Groenendaal model.
[79] These events provide the factual foundation for Mr Cooke’s submission that the Director-General had predetermined, or appeared to predetermine, the issue in dispute.[13] He says officials are not allowed to be a judge in their own cause.[14] He says the principle extends to official involvement leading to contamination of a decision made by another decision maker.[15] He criticises Williams J’s rejection of this submission, on the apparent ground that the Panel’s criticisms of the officials were not as extreme as the Board suggested and the decision maker appeared to address the questions objectively.[16] Ultimately, Mr Cooke says, there was a process failure justifying judicial intervention.
[80] Once again, this submission derives from Mr Cooke’s premise about the meaning of the phrase, “the issue in dispute”. Again, we repeat that the Director-General was not acting in an adjudicative role. He was not being asked to rule in a particular cause – in favour of either the Board or the Ministry. His function was of a higher order, bearing in mind his statutory and treaty responsibilities. He was required to bring an independent mind to bear on whether, in developing an IHS, the Ministry has had sufficient regard to the scientific evidence about which the Board has raised a significant concern. There could be no prospect of him ruling in his own cause or that of any of the participants in the process.
[81] We agree with Ms Gwyn that Mr Cooke’s submission misunderstands the respective roles of the Panel and the Ministry in the s 22A process. As Williams J observed:

... there is nothing in the wording of s 22A that suggests that officials should be removed from their usual role as advisors or assistants to the Director-General when he “determines the issue”.

[82] In developing IHSs, the Ministry officials, particularly the CTO,[17] play a key part in the decision-making process mandated by s 22. Williams J properly recognised that, in the ordinary course of the business of government, officials provide expert advice, sometimes to a level of great detail, about the way in which a Minister or another statutory decision maker should exercise his or her discretion. As a government department, the Ministry’s role was to independently assess and evaluate information on risk goods and mitigation measures, and determine an appropriate level of protection against risks. That is not a process from which it can be said that the relevant officials have an interest in the result. Ms Gwyn is right that their only interest is to ensure the integrity of the scientific analysis which has been conducted and compliance with New Zealand’s obligations under the SPS agreement.
[83] When it is stripped away, Mr Cooke’s argument reduces to a proposition that the Panel’s report, by virtue of some criticisms of the process adopted by the Ministry in developing the provisional IHSs to that stage, transformed the CTOs and others into legal protagonists who should then have removed themselves from the process. We reject that proposition. As Williams J found:[18]

... there is no reason to be found either in the structure of s 22A or in the conduct of these officials to suggest that they should have been removed from the process before the Director-General made his s 22A(3) decision for reasons of bias or pre-determination.

(d) Further consultation

[84] Finally, Mr Cooke submits there was an additional procedural impropriety arising from the manner in which the Ministry failed to engage in any further consultation on its revised risk analysis set out in the Zagmutt-Groenendaal model, and in its simultaneous determination of the ss 22A and 22 questions in a manner which excluded any input from the Board into the final decisions before they were made. He relies particularly on the provisions of s 22(6) and (7) which we repeat for ease of reference as follows:

22 Import health standards

...

(6) Before making a recommendation to the Director-General on the issue or amendment of an import health standard, the chief technical officer must, unless the standard needs to be issued or amended urgently, or unless the chief technical officer considers that the amendment is minor, consult with those persons considered by the chief technical officer to be representative of the classes of persons having an interest in the standard.

(7) The consultation may be on the import health standard or on a document that analyses or assesses the risks associated with the goods or class of goods to which the goods belong.

[85] Mr Cooke accepts that further consultation had taken place on the document upon which the IHSs was based – that is, the Ministry’s original IRA and the draft IHSs. However, he emphasises that following the Panel’s report reasonably detailed further work was undertaken to substantially review that risk analysis. In particular, the two experts were retained to use a modelling approach which the Ministry had not previously used to support the IHSs and there had been no consultation on an IHS supported by a model of the risk. Also, he says the outputs from the Zagmutt-Groenendaal model were significantly different from the 2010 Neumann model because significant changes had been made to its parameters.
[86] On this basis Mr Cooke submits there was a fundamentally new IRA which had been engaged to support the IHSs. Accordingly, the Ministry assumed an obligation for further consultation.[19] In particular, the Board was never given an opportunity to address the revised IRA contained in the Zagmutt-Groenendaal model. Mr Cooke has undertaken a reasonably detailed comparative analysis of the conclusions reached by the two conflicting scientific models to support his argument for further consultation.
[87] In our judgment, the terms of s 22(6) and (7) are decisive. The CTO’s obligation to consult arises before he or she makes a recommendation to the Director-General on the issue or amendment of an IHS. In terms of this obligation, the Director-General first issued provisional IHSs on 31 August 2001, following his provision a month earlier of a draft IRA to the Board for consideration. The Ministry then undertook further work and consultation before releasing its formal IRA for consultation on 25 July 2006. On 12 November 2007, the Ministry released for consultation its draft IHSs. On 25 March 2009, the Director-General issued his provisional IHSs before the Board gave notice a month later of its intention to request a panel be appointed. In terms of s 22(6), there can be no doubt that the CTO had complied with his obligation and also insofar as it related to the proposed IHSs and the IRA.
[88] The Ministry had not issued any IHSs allowing the import of “ready-to-cook, high value cuts of pig meats” from the European Union, Canada, the United States of America and the Sonora State of Mexico before releasing its draft IHSs for consultation on 12 November 2007. The duty to consult related to the recommendation made by the Ministry on 25 March 2009. We do not read the statutory provision as extending to or embracing any subsequent work carried out. It is limited to an existing IHS or IRA.
[89] It is not in dispute that the Board was consulted extensively throughout the process between 2001 and 2011. It made submissions to the Ministry in the formal consultation round on the 2006 IRA; on the provisional IHSs in November 2007; and to the Panel in 2009. It received and considered the Director-General’s decision issued on 1 September 2010 and, as a consequence, nominated Dr Neumann for appointment to the EWG. His work in that capacity generated the Ministry’s commission of a further report, the EpiX Analytics report incorporating the Zagmutt-Groenendaal model.
[90] Also, we agree with Williams J that the Zagmutt-Groenendaal model did not constitute a new or fresh IRA. He upheld Ms Gwyn’s contention that the model was merely a tool or mechanism for exploring and testing the primary IRA drafted in 2006. That was also plain from the Director-General’s 1 September 2010 decision. The inputs for the model had been subjected to extensive consultation by all parties. In any event, the 2007 Neumann model was the original source of all this data, the work of the Board’s expert.
[91] Also, we should point out a contradiction inherent in Mr Cooke’s arguments. On his first ground, one of his premises was that the Director-General was not entitled to continue the process, as he did, by revising the existing IRA, following receipt of the Panel’s report; on this ground, however, he submits that the Zagmutt-Groenendaal model was in fact a new quantitative risk model. The two are inconsistent.
[92] This process had been, to say the least, drawn out, largely as a result of the Board’s participation in the consultative phases. Provisional IHSs had been under consideration for some 10 years when the Director-General made his final decision. In his s 22A(3) determination the Director-General recognised that for years expert opinion had been divided and polarised on interpretation of new data. In large part, this was a consequence of the intensity of the Ministry’s consultation with the Board. The Director-General’s view was that a final decision was necessary.
[93] Mr Cooke’s submission can be construed as a call for the process to continue indefinitely while the Board continued to debate the relevant science with the Ministry. The Director-General, the statutory decision maker, had concluded that the scientific protagonists were never likely to agree on the ultimate risk assessment, however long the process had allowed. In our judgment, that is not the purpose or effect of s 22(6) and (7). Arguably, what actually happened here was antithetical to the statutory purpose, which Williams J rightly described as designed to facilitate a decision process that advanced the effective management of risk.[20]
[94] In his written synopsis Mr Cooke affirmed the truism that it is not the High Court’s function in judicial review proceedings to reach conclusions on disputed questions of science. However, this affirmation followed his analysis of the competing merits of the two models, based upon an affidavit by Professor Morris filed in support of the Board’s application to continue the interim relief. In argument Mr Cooke devoted some time to an expansion upon Professor Morris’ thesis and an examination of the competing merits of the Neumann and Zagmutt-Groenendaal models. This argument, advanced in support of a submission on a duty to consult, could be open to construction as a front for a challenge to the substantive merits of the Director-General’s decision. If that is so, we reject it.
[95] In summary, the statutory scheme relating to an IHS provides that:

(a) The CTO is responsible for instigating and developing an IHS. He or she is appointed on the basis of technical expertise and knowledge.

(b) In recommending to the Director-General that an IHS be issued, the CTO must take into account four specific factors including the risk of imported goods bringing organisms into New Zealand, the effect of those organisms on New Zealand and New Zealand’s international obligations. In other words the CTO’s responsibilities are significantly wider than technical considerations.

(c) Before making a recommendation, the CTO must consult with interested parties. Consultation means what it says – that is, to seek information or advice from others and take into account what they say. If during this consultation period one of the consulted parties raises a significant concern about whether the CTO has sufficient regard to the scientific evidence in developing the IHS, the Director-General may establish an independent review panel to consider and advise on that issue.

(d) If the Director-General establishes a panel, he or she is bound to receive its report and determine the issue of whether sufficient regard has been had to the scientific evidence, taking into account the Panel’s findings and recommendations. The Director-General must give reasons for the determination.

[96] In the result, it is solely for the Director-General following receipt of the CTO’s recommendation to determine not only the issue in dispute considered by the panel but also to decide whether to issue an IHS. Parliament has entrusted the decision making power at both stages solely to the Director-General. The process by which the Director-General acts at either stage is reviewable, but the substance of either the s 22A determination or s 22 decision is not.
[97] In our judgment, the Director-General’s determination, whether made on 1 September 2010 or 10 April 2011, complied with the statutory process. The Board’s application, when analysed at its core, is an attempt to use an application for judicial review of a statutory determination as a vehicle for challenging the merits of the Director-General’s consequential decision to issue the IHSs. That decision was essentially his evaluation of the relevant risks, on which there had been years of scientific debate and which the Director-General concluded was likely to continue indefinitely and inconclusively, and is not reviewable by the courts. The appeal must fail.

Result

[98] The appeal is dismissed.
[99] The appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

WHITE J

[100] If I considered that it was reasonably open to the Director-General to introduce the new biosecurity standards (the IHSs) for the importation of raw pig meat into New Zealand on the basis that the risk of PRRS was as remote as suggested in the December 2010 EpiX Analytics report,[21] then I would agree with the decision of the majority whose judgment in my view correctly summarises the relevant factual background and the well-established approach to the interpretation of the relevant statutory provisions.
[101] But, for reasons which largely reflect the persuasive submissions of Mr Cooke in reply and which I am able to state shortly, I do not consider that it was reasonably open to the chief technical officer and the Director-General to accept the EpiX Analytics report as the last word and to make their final recommendations and decision respectively without first disclosing the report to the Board and giving the Board the opportunity to respond to and comment on the report.
[102] As the independent expert evidence before the High Court indicates, the Zagmutt-Groenendaal modelling exercise on which the EpiX Analytics report was based is open to challenge. Professor Roger Morris, Emeritus Professor of Animal Health at Massey University, deposed in his affidavit filed in support of the Board’s application to continue the interim relief that in his opinion the EpiX Analytics analysis incorporated several very influential parameters, including in particular the amount of imported pork, the proportion of imported pork sold as consumer-ready cuts, and viral assistance after slaughter. Very slight adjustments in one or more of these values adopted in the EpiX Analytics report significantly increased the risk of a PRRS incursion. Professor Morris said that, throughout the likely time ranges for the three factors, the risk of incursion was so high that the IHSs fell well short of providing acceptable protection from the entry and establishment of the PRRS virus. This demonstrated a real risk of a PRRS incursion in New Zealand under the new IHSs. Professor Morris concluded:

If PRRS is to be kept out of New Zealand, pig meat must be processed to destroy any virus in the product before entry to New Zealand, such as was the case under the previous import health standards. It is my scientific opinion that the release of consumer-ready cuts under the new import health standards would expose New Zealand pigs to an unacceptably high risk of one or more PRRS incursions within a time horizon of a decade.

[103] Notwithstanding all that had gone before, a genuine and unresolved scientific issue as to the risks involved in the importation of raw pig meat remains on the evidence. This fact, that is the existence of this unresolved issue, is in my view sufficient to trigger the provisions of the Act.
[104] Acceptance of this fact does not involve the determination of the scientific issue by the Court, which I agree would be inappropriate in a judicial review proceeding of this nature.[22] The existence of this unresolved issue, which is based on the standing of the experts on both sides, does not require the Court to resolve the question of the relative reliability of the contested scientific evidence.[23]
[105] Consequently, by making his recommendations on the basis of the EpiX Analytics report, the chief technical officer failed to consult with the Board as required by s 22(6) of the Act. This meant that the Director-General determined the issue in dispute without having sufficient regard to the relevant scientific evidence as required by s 22A(1) and (3). These failures to comply with the mandatory statutory obligations, which remained in existence as a result of the unresolved scientific issue, could not be avoided by the steps previously taken. Statutory obligations of this nature continue to apply to circumstances as they arise and may be performed from time to time.[24] This seems to have been accepted by the Director-General in the two stage decision making process adopted in this case.[25]
[106] I consider that my approach to the interpretation and application of the mandatory statutory obligations in this case is supported by the purpose and scheme of the Act, especially when it is recognised that when the Director-General is exercising his discretionary power under s 22(1) to issue an IHS he must do so to implement and not thwart that purpose.[26]
[107] The overarching purpose of the Act is to protect New Zealand’s economic base from damage from the importation of unwanted pests and diseases. As the then Minister of Agriculture, the Hon John Falloon, said on the introduction of the legislation:[27]

[the Act] will help to ensure that New Zealand remains free of the serious pests and diseases that plague many parts of the world. It will also establish a rational and equitable mechanism to manage pests that are damaging either the reputation of New Zealand’s primary products or the production of the land itself.

[108] Notwithstanding the economic changes in New Zealand since the introduction of the legislation in 1993, the primary production sector retains its central place, contributing some $31.5 billion a year or 71 per cent of New Zealand’s total export income.[28] It is therefore difficult to overstate the importance of ensuring that the Act is interpreted and applied effectively to ensure organisms which pose a threat to the integrity of New Zealand’s primary industries or New Zealand’s bio-environment generally do not gain a foothold in this country. In the present case the pork industry is worth approximately $1 billion to the New Zealand economy through local sales, exports and employment and servicing related expenditure.[29]
[109] Reflecting the importance of the Act to New Zealand’s economy, the focus of the Director-General, when exercising his discretionary power under s 22(1), is on “the effective management of risks associated with the importation of risk goods ...”.[30]
[110] While, as the majority have noted, the expression “risk goods” is defined in s 2 of the Act,[31] the word “risk” which appears in both s 22(1) and the definition is not separately defined. In the context of this Act, I consider it should be given its ordinary meaning of “(exposure to) the possibility of loss, injury, or other adverse or unwelcome circumstance; a chance or situation involving such a possibility”.[32] Parliament’s concern is therefore with the possibility, rather than the probability, of adverse consequences from the importation of goods with diseases.[33] This concern has led one commentator to say:[34]

New Zealand’s biosecurity policies can be acknowledged as some of the boldest experiments in bringing science and the precautionary approach into policy, regulation, and operational decision-making at the domestic level. New Zealand has a comprehensive structure and the responsible agencies are relatively well staffed by scientists and professionals. The decisions are made after risk assessments and public input. The legislature has indicated its intention to give appropriate weight to scientific and technical data and analysis to arrive at decisions that are neutral and unaffected by political and other influences. New Zealand’s comprehensive structure and the internalization of the precautionary approach, among other things, provide a model from which other countries could learn.

[111] When it is recognised that the Act is concerned with protecting New Zealand’s economy from the possibility of damage from the importation of pests or harmful organisms, it is not surprising that the courts have required strict compliance with the provisions of the Act.[35] Recognising the ongoing nature of the mandatory statutory obligations is also consistent with the purpose of the Act.
[112] In reaching this conclusion, I do not overlook the reference in s 22(5)(c) to “New Zealand’s international obligations” as one of the matters to which the chief technical officer “must have regard” in making a recommendation to the Director-General. But care must be taken to identify the nature and extent of the relevant international obligations and not to rely on this requirement to qualify unduly the primary purpose of the Act. As this Court put it in New Zealand Air Line Pilots’ Association Inc v Attorney-General, New Zealand legislation should be interpreted consistently with its international treaty obligations wherever possible.[36]
[113] New Zealand is a signatory to a range of international agreements affecting biosecurity, including agreements introduced by the World Trade Organisation (WTO), which are designed to liberalise trade, and multilateral environmental agreements, which have the goal of environmental conservation generally, or of specific goals relating to environmental protection, or the protection of plant, animal (and human) health.[37] The Agreement on the Application of Sanitary and Phytosanitary Measures, referred to by the majority,[38] is one of the former. New Zealand is, however, also a party to a significant number of the latter.[39]
[114] There are a number of difficulties involved in endeavouring to reconcile the various different international agreements. They have been described as lacking coherence and clarity because of the potential conflicts in the applicable principles and rules and in the different approaches adopted by the WTO.[40] For instance, the WTO has recognised that members “can to some extent apply the ‘precautionary principle’, a kind of ‘safety first’ approach to deal with scientific uncertainty”.[41]
[115] In these circumstances I do not consider that New Zealand’s international treaty obligations should be read as qualifying the interpretation and application of the Act in this case. On the contrary, in the face of the unresolved scientific uncertainty as to the possibility of a PRRS incursion in New Zealand through imported raw pig meat, an outcome that would have serious adverse consequences for New Zealand’s economy, a precautionary approach requiring strict compliance with the statutory obligations is warranted.
[116] For these reasons I would have allowed the appeal, quashed the Director-General’s decision of 13 April 2011 and remitted the matter to the Director-General under s 4(5) of the Judicature Amendment Act 1972 to consider, in accordance with ss 22 and 22A of the Act, the unresolved scientific issue that remains on the evidence. I would also have extended the current interim order to protect the position pending the further consideration by the Director-General.[42]

Solicitors:
Jonathan Kaye Law, Wellington for Appellant
Crown Law Office, Wellington for Respondents


[1] The New Zealand Pork Industry Board v The Director-General of Ministry of Agriculture and Forestry [2012] NZHC 888.
[2] Biosecurity Act 1993, s 22(5).

[3] Section 22A(3) was introduced by s 6 of the Biosecurity Amendment Act (No 2) 2008. The section was repealed on 18 September 2012 by s 20 of the Biosecurity Law Reform Act 2012.

[4] National Beekeepers’ Association of New Zealand v Chief Executive of the Ministry of Agriculture and Forestry [2007] NZCA 556.
[5] At [41]–[59].
[6] Biosecurity Act, s 2.
[7] Biosecurity Act, s 101.
[8] At [131].
[9] Malone v R [2010] NZCA 59.
[10] At [117].
[11] At [150].
[12] At [130].
[13] CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).
[14] Director of Civil Aviation v Paterson (No 3) HC Wellington CIV-2005-485-606, 23 June 2005.

[15] Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817; Hot Holdings Pty Ltd v Creasy [2002] HCA 51, (2002) 210 CLR 438.
[16] At [210]–[224].
[17] Biosecurity Act, s 101.
[18] At [224].

[19] Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA) at 683–684.
[20] At [117].
[21] Majority judgment, at [27] and [29].

[22] Majority judgment, at [94].

[23] Compare New Zealand Asparagus Council v Director-General of Agriculture and Fisheries HC Wellington CP103/95, 20 June 1995 at 4; Daubert v Merrill Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993) and New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research [2012] NZHC 2297, [2013] 1 NZLR 75 at [45]–[47]. See Marcelo Rodriguez Ferrere “Judicial Review of Scientific Findings” [2012] NZLJ 380. The United States Supreme Court emphasised in Daubert that “[t]he focus... must be solely on principles and methodology, not the conclusions they generate” at 595; Margaret A Berger “The Admissibility of Expert Testimony” in Reference Manual on Scientific Evidence (3rd ed, The National Academies Press, Washington DC, 2011) at 12. See Mitsuhiko A Takahashi “Are the Kiwis Taking a Leap? – Learning from the Biosecurity Policy of New Zealand” (2005) 24 Temp Envtl L & Tech J 461 at 472.

[24] Interpretation Act 1999, ss 6 and 16.
[25] Majority judgment, at [23], [28] and [44].

[26] Biosecurity Act, s 22(3); Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53].
[27] (17 August 1993) 537 NZPD 17459.
[28] Statistics New Zealand “Experts for Overseas Merchandise Trade: Country of Destination by Commodity and Period” < www.stats.govt.nz >.
[29] Allan Gillingham “Pigs and the pork industry - Pig farming” Te Ara - the Encyclopaedia of New
Zealand < www.teara.govt.nz >.
[30] Biosecurity Act, s 16.
[31] Majority judgment, at [45].

[32] John Simpson and others (eds) Oxford English Dictionary (3rd online ed, Oxford University Press, 2010) < www.oed.com >.

[33] The suggestion of the World Health Organisation for Animal Health that “risk” involves the “probability of something happening” appears erroneous. See Noel Murray and others Handbook on Import Risk Analysis for Animals and Animal Products, Volume 1 Introduction and Qualitative Risk Analysis (World Health Organisation for Animal Health, Paris, 2004) at 2.
[34] Takahashi, above n 23, at 476.

[35] New Zealand Asparagus Council, above n 23; Michael Webb “The Biosecurity Act 1993 and the ‘thin green line’” [1995] NZLJ 395; and National Beekeepers’ Association of New Zealand v Chief Executive of the Ministry of Agriculture and Forestry, above n 4, at [50].

[36] New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289; United States of America v Dotcom [2013] NZCA 38 at [19]; and JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 495–496.

[37] See Opi Outhwaite “The International Legal Framework for Biosecurity and the Challenges Ahead” (2010) 19 RECIEL 207 at 213.
[38] Majority judgment, at [6].

[39] Including the Cartagena Protocol on Biosafety 2000 and the Statutes of the International Union for the Conservation of Nature and Natural Resources.
[40] Outhwaite, above n 37, at 220–221.

[41] At 220.
[42] Judicature Amendment Act 1972, s 4(5A).

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