The High Court has found that the Ministry of Primary Industries used the wrong powers in the Biosecurity Act 1993 (Act) when it seized and ordered the destruction or containment of approximately 48,000 fruit trees. The Court set aside the Ministry's use of powers.
The fruit trees had been predominantly grown in New Zealand from plant material that had been imported from a clean plant facility in the United States (Facility) over the past six years. The Ministry withdrew its accreditation of the Facility in March 2018, following an audit that identified issues with the Facility's records.
The Ministry said that it had lost confidence in the Facility and decided that any plant material imported from the Facility since 2012, and any trees grown from that material, were "unauthorised goods" and therefore could be seized and destroyed under section 116 of the Act. In contrast to other powers under the Act, that section permits seizure and destruction of goods without compensation.
A number of nurseries and orchardists challenged the seizure and directions by judicial review in two proceedings (heard together). The key issues were whether the trees were "unauthorised goods" and whether the seizure of the trees and ordering their destruction or containment was reasonable.
The Biosecurity regime
The Act provides the Ministry with a range of powers to manage the risks of pests and diseases that are in, or may enter, New Zealand.
Section 116 permits the seizure of "unauthorised goods", which, relevantly, include goods that have been given biosecurity clearance following the receipt of false, misleading or incomplete information concerning the goods.
The Ministry said that phytosanitary certificates issued by the US Department of Agriculture in relation to the imported plant material and provided to the Ministry during the importation process were misleading in light of the issues with the Facility's records.
The Court's decision
The Court held that the irregularities in the Facility's record keeping were insufficient to justify the Ministry regarding the phytosanitary certificates as misleading and thereby treating the plant material as unauthorised goods.
The Court further held that most of the seized fruit trees were no longer "goods" under the Act. The Court held the definition of "goods" in the Act, as "moveable personal property", did not cover trees that were derived from the imported plant material and were planted in the ground. The majority of the trees in issue had been planted in the ground and, therefore, were outside the scope of section 116.
The Ministry suggested that, if it could not exercise powers under s 116, there would be a lacuna in the Act as the Ministry would lack the powers to respond. The Court rejected this argument, holding that there were other powers in the Act that were apt to deal with the Ministry's biosecurity concerns.
Ultimately, the Court set aside the section 116 seizure and containment orders. Given the biosecurity concerns potentially in play however, the Court also made interim orders for the further containment of the trees to give the Ministry time to consider whether it should exercise alternative powers under the Act.
The Ministry's Response
On 5 September 2018, the Ministry exercised alternative powers under section 122 of the Act to contain the trees. The Ministry and industry are now consulting on the further response required to deal with the plant material.
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