Chapter One - The inquiry
1.1
This is the Committee's second inquiry into the
importation of New Zealand
apples. The inquiry was initially self referred by the Committee on 9 March 2004 with the following terms
of reference:
The administration of Biosecurity Australia with particular
reference to the assessment, methodology, conclusions and recommendations
contained in the Revised Draft Import Risk Analysis report on the Importation
of Apples from New Zealand released in February 2004.
1.2
The Committee advertised the inquiry in The Australian on 10 March 2004. During the inquiry the Committee
received 37 written submissions, including three supplementary submissions. Contributions
were made by the New Zealand
government, the peak Australian apple and pear body and a range of other Australian
apple and pear industry organisations. A list of submissions received by the
Committee is included in Appendix 1.
1.3
Due to workload and the imminent 2004 federal election
the Committee was unable to conduct hearings in apple growing regions. Instead,
industry representatives and Biosecurity Australia
appeared at public hearings in Canberra
on 31 March 2004 and 30 June 2004. A list of witnesses to
appear before the Committee is included in Appendix 2.
1.4
However, the Committee did not complete the inquiry
prior to the election being called. On 1
December 2004, the Committee reported that fact to the Senate,
together with a recommendation that the Senate refer the matter to the
Committee to finalise. On the adoption of that report, the administration of
Biosecurity Australia
with particular reference to the import risk analysis (IRA) of apples from New
Zealand, was again referred to the
Committee. A further hearing was held on 9
February 2005.
1.5
A Hansard record of the Committee's
hearings is available on the web at www.aph.gov.au.
Background
Australia's
WTO rights and obligations
1.6
Australia
is a signatory to the World Trade Organisation's (WTO) Agreement on the
Application of Sanitary and Phytosanitary Measures (SPS Agreement). Under this
agreement, member states are entitled to "take sanitary and phytosanitary
measures necessary for the protection of human, animal or plant life or
health".[1] This right is limited by
member states' obligation to ensure their SPS measures are not more trade
restrictive than necessary to achieve an appropriate level of protection (ALOP)
from pests and disease.[2]
1.7
International standards for phytosanitary measures are
set by the International Plant Protection Convention, to which Australia
is a contracting party. The WTO SPS Agreement requires that SPS measures
enforcing a higher standard of protection than international standards be based
on a scientific assessment of risk. The risk assessment must be based on
sufficient scientific evidence and shall contemplate factors such as:
- Processes and production methods;
- Inspection, sampling and testing methods;
- Prevalence of specific pests and diseases and
the existence of pest/disease free areas;
- Ecological and environmental conditions;
- Economic impact of loss of production and cost
of control/eradication.[3]
1.8
Biosecurity Australia's
undertaking of the IRA for New Zealand
apples reflects Australia's
obligations under Article 5 of the SPS Agreement.
Biosecurity Australia's
IRA process
1.9
The entire IRA process is documented in Biosecurity Australia's
IRA Handbook,
specifying the step-by-step procedure that must be followed before a final IRA
is produced and the Director of Quarantine makes a determination detailing
import requirements.
1.10
The Handbook establishes the procedures to be followed
in relation to the preparation of a draft IRA, as well as the requirement for
it to be publicly released with the opportunity for affected parties to submit
comments on the draft.
1.11
Step 16 of the Handbook states that:
If new information comes to light that may significantly affect
the analysis, or if the IRA team identifies the need to make significant
changes to the analysis in finalising the IRA Report, the IRA team, in
consultation with the Executive Manager of Biosecurity Australia, may consider
whether it would be appropriate to prepare a revised Draft IRA Report for
stakeholder consultation.[4]
1.12
Further, the release of a revised draft IRA is followed
by an additional consultation period whereby stakeholders are given 60 days to
comment on the report.[5]
The IRA for New Zealand
apples
1.13
The current apples IRA process was instigated in 1999
following a New Zealand request for Australia to present its assessment of the
least trade restrictive quarantine regime under which New Zealand apples could
be exported to Australia.[6] This follows
New Zealand's
earlier attempts to export apples to Australia
in 1986, 1989 and 1995.[7]
1.14
This process differs from New
Zealand's attempts prior to 1999 to export
apples to Australia,
where Australia
rejected New Zealand's
proposed SPS measures. On this occasion, New
Zealand has requested that Australia
propose the least trade restrictive risk mitigation protocols it could impose
while maintaining an appropriate level of quarantine protection from pests and
disease.[8]
1.15
Presently only fuji
apples from Japan
are permitted into Australia,
subject to certain protocols.[9]
1.16
The revised draft IRA for the importation of New
Zealand apples follows Biosecurity Australia's
release of a draft IRA on 11 October
2000; the subject of the Committee's interim report on the
importation of New Zealand
apples tabled in the Senate on 18 July
2001.[10]
1.17
The 2000 draft IRA attracted considerable criticism
from industry representatives from both sides of the Tasman,
as well as sections of the scientific community. These criticisms broadly
concentrated on:
(i) the consultation process between Biosecurity Australia
and industry;
(ii) a methodological leaning towards qualitative rather
than quantitative analysis;
(iii) the
validity of the science cited in the draft IRA.[11]
1.18
The Committee's predecessor's interim report on the
2000 draft IRA made fifteen recommendations regarding various aspects of the
development of a final New Zealand
apple IRA.[12] Some of these addressed
issues pertaining to the generic IRA process, others to the specifics of the
apples IRA. The salient recommendations and government responses[13] are as follows:
- Introducing procedures to allow appeals on IRAs
to the Administrative Appeals Tribunal. The government rejected this on the
basis that the IRA process is not statutorily based;
- The development and publication of guidelines
establishing the IRA consultative process, and greater direct contact with
stakeholders. The guidelines outlining Biosecurity Australia's consultative
process are contained in the rewritten 2003 Handbook, while Biosecurity
Australia's representatives now also travel to relevant areas to hear feedback
and provide direct information to stakeholders;
- Quantitative risk evaluation in preference to
qualitative risk evaluation. The government's response did not directly endorse
one methodology over another, however when compared to the 2000 draft IRA the
revised draft version has shifted towards quantitative risk evaluation;
- Biosecurity Australia commission research into
whether mature apples can carry transmittable fire blight bacteria and the role
of vectors in transmitting fire blight. The government responded by indicating
that the feasibility of additional research was being considered, though this
has not been undertaken. The Committee notes that additional research was
undertaken on behalf of the New Zealand authorities, but this is not available
to the Committee (see paragraphs 4.45 to 4.52);
- Biosecurity Australia conducts tests in New
Zealand packing houses to assess the processing requirements for ensuring trash
free apples. The government response indicated that trash issues would be
considered in more detail. However, the revised draft IRA has removed trash as
a component of BA's risk modelling; and
- Include in the IRA advice from the Agricultural
and Veterinary Chemicals National Registration Authority (NRA) as to the
circumstances in which the spraying of streptomycin to combat fire blight would
be permitted. The revised draft IRA does not specifically do this, though the
possibility of its use is referred to.[14] The government's response stated that the NRA has advised that it could issue
emergency use permits for three months.
1.19
The Committee notes that the revised draft IRA did not
base its assessment on the risk posed by mature apples as vectors for fire
blight on Australian based research as recommended in its predecessor's report.
Nor was the related issue of trash considered in more detail in the revised
draft IRA. In fact the issue of trash was not fully considered as the IRA is
predicated on the assumption that the imported fruit will be trash free.
1.20
A revised draft IRA for the importation of New
Zealand apples was undertaken and released
on 19 February 2004.[15] At the request of the apple and pear
industry, many of whom were undertaking their harvest when the revised draft
was released, BA agreed to extend the comment period from 60 to 120 days.
1.21
On 11 March
2004 the Committee released its final report on the proposed
importation of fresh apple fruit from New Zealand;
an inquiry instigated following the release of the 2000 draft IRA. This report indicated
the Committee's agreement to conclude the Senate's initial reference and
commence this inquiry on the revised draft IRA.[16]
1.22
In August 2004 the Minister announced the establishment
of an Eminent Scientists Group to provide independent examination of proposed
final IRAs before their release. Their role is to:
(i)
ensure the IRA panel adequately considered the
technical submissions received during the consultation period, and;
(ii)
recommend necessary action to overcome any identified
deficiencies, if any.[17]
1.23
The Committee notes that this initiative does not
affect the IRA appeal process specified in the Handbook.
1.24
Following the publication of the final IRA, step 20 of
the Handbook provides for an appeal process to an independent IRA appeal panel.
However, the basis of any such appeal is limited to the following grounds:
(i)
deviation from the process established by the Handbook;
and
(ii)
lack of consideration of a significant body of relevant
evidence.[18]
1.25
Significantly, the IRA team's interpretation and
application of the available scientific evidence, as well as any assessment of quarantine
risk levels, does not provide grounds for appeal. Therefore, if industry
believes the IRA team has drawn incorrect conclusions on the basis of the
available science, no appeal on the final IRA is possible through the IRA
appeal panel.
1.26
At its hearing on 9 February 2005 the Committee sought
an indication as to the IRA's present status and what further work, if any,
would be undertaken on the IRA report for apples from New Zealand. The Committee
was informed that:
Mr Cahill - It is essentially the task of
the panel to inform me of their view of that. Given that there are 200
submissions from stakeholders, there is a fair bit of work that still needs to
be done by the import risk analysis team, and I expect that a new draft would
be issued. But the actual details of that and how quickly we might be able to
progress with that is a matter for consideration once I have received the
panel's report.
Senator Cherry – It would certainly be a new draft.
You would not be proposing to go straight to the final report at this stage?
Mr Cahill – That is correct.[19]
Scope of the report
1.27
The Committee notes Biosecurity Australia's
advice that further work will be undertaken on the revised draft IRA report for
apples from New Zealand
prior to its re-release. None the less the Committee believes that the issues
placed before the Committee during its inquiry and the Committee's own views
should be placed on the public record and it does so with this report. In doing
so, the Committee hopes that the review process to be undertaken by Biosecurity
Australia will
note and act on the Committee's findings where appropriate.
1.28
Chapter Two considers the recent ruling by the WTO's
Appellate Body in relation to the case of Japan – Measures Affecting the Import of Apple. During
the inquiry conflicting evidence was provided asserting the significance of the
decision to Australia's
circumstance. These arguments are presented in that chapter.
1.29
Chapter Three focuses on the issues raised in evidence
relating to the specifics of the revised draft IRA report. Regional concerns
are also outlined in this chapter.
1.30
Chapter Four examines Biosecurity Australia's
administration of the IRA process, including the nature of some evidence it
provided to this Committee.
1.31
The final Chapter briefly outlines lessons from this
process that, in the Committee's view, Biosecurity Australia
should apply to any further work it conducts on the IRA for apples from New
Zealand.
Acknowledgements
1.32
The Committee would
like to thank those who participated in the inquiry, often meeting difficult
time lines. It appreciates the work undertaken to provide both written and oral
evidence and acknowledges the debt this report owes to that work.