BRIMCOVE PTY LTD and DIRECTOR GENERAL OF THE DEPARTMENT OF AGRICULTURE AND FOOD WESTERN AUSTRALIA
[2015] WASAT 30
•23 MARCH 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BIOSECURITY AND AGRICULTURE MANAGEMENT ACT 2007 (WA)
CITATION: BRIMCOVE PTY LTD and DIRECTOR GENERAL OF THE DEPARTMENT OF AGRICULTURE AND FOOD WESTERN AUSTRALIA [2015] WASAT 30
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
HEARD: 10 AND 11 DECEMBER 2014
DELIVERED : 23 MARCH 2015
FILE NO/S: DR 241 of 2014
BETWEEN: BRIMCOVE PTY LTD
Applicant
AND
DIRECTOR GENERAL OF THE DEPARTMENT OF AGRICULTURE AND FOOD WESTERN AUSTRALIA
Respondent
Catchwords:
Application of policy Pest risk analysis International Standards for Phytosanitary Measures Framework for Pest Risk Analysis for Australian Pests (ISPM 2) Engagement with stakeholders
Legislation:
Biosecurity and Agriculture Management Act 2007 (WA), s 3(1), s 6, s 15(3), s 16, s 16(2)
Biosecurity and Agriculture Management Regulations 2013 (WA), reg 5(d), reg 72(2), reg 72(2)(a)(ii), reg 72(4), reg 91, reg 93, reg 94, reg 96, reg 97, reg 102
State Administrative Tribunal Act 2004 (WA), s 21, s 24
Result:
Application dismissed
Summary of Tribunal's decision:
Brimcove Pty Ltd applied for an individual import permit so as to import fresh table grapes from Victoria into Western Australia. The Director General refused the application on the basis that a pest risk analysis had not been completed. A pest risk analysis (PRA) is required pursuant to Australia's obligations under International conventions, as reflected in Commonwealth/State Agreements.
Brimcove alleged that there had been an unreasonable delay in the preparation and completion of the PRA.
The Tribunal accepts that there has been a long delay. However, engagement with stakeholders is an important aspect of the pest risk analysis process. Since that engagement has not been completed, it is not appropriate to issue an individual import permit to Brimcove Pty Ltd.
Category: B
Representation:
Counsel:
Applicant: Mr DH Solomon and Mr AR Hay
Respondent: Mr A Shuy and Ms JA Godfrey
Solicitors:
Applicant: Solomon Brothers
Respondent: State Solicitor for Western Australia
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; 122 LGERA 433
Zampatti v Western Australian Planning Commission [2010] WASCA 149
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 12 March 2014, the applicant, Brimcove Pty Ltd (Brimcove), applied for a permit to import grapes into Western Australia from Victoria.
The grant of an import permit is governed by the Biosecurity and Agriculture Management Act 2007 (WA) (the Act) and the Biosecurity and Agriculture Management Regulations 2013 (WA) (the Regulations).
On 19 June 2014, the Director General of the Department of Agriculture and Food Western Australia (the Director General) refused the application.
The Director General refused Brimcove's application for a permit on the ground that before such a permit could be granted, the Director General had to undertake a pest risk analysis (PRA).
Brimcove's application to the Tribunal for a review of the Director General's application was filed on 18 July 2014.
At the date of the hearing in December 2014, a PRA had been commenced by the Director General but not completed. A number of draft PRA (the Draft PRA) were admitted as exhibits, including Exhibits 2 and 3. Exhibit 2 and 3 exceed 460 pages.
The Tribunal concludes that since the processes relating to the Draft PRA has not been completed, the application should be dismissed.
What is a pest risk analysis?
Before embarking further in these reasons, it is useful to explain the general procedure for a PRA.
It is important to understand that the procedure for preparing a PRA involves a process.
The procedure for a PRA is set out in considerable detail in the International Standards for Phytosanitary Measures Framework for Pest Risk Analysis for Australian Pests (ISPM 2) (Exhibit 9, pages 88 105).
ISPM 2 sets out an outline of these requirements (Exhibit 9, page 92):
Scope
This standard provides a framework that describes the pest risk analysis (PRA) process within the scope of the [International Plant Protection Convention]. It introduces the three stages of pest risk analysis - initiation, pest risk assessment and pest risk management.
…
Outline of Requirements
The PRA process is a technical tool used for identifying appropriate phytosanitary measures. The PRA process, may be used for organisms not previously recognized as pests (such as plants, biological control agents or other beneficial organisms, living modified organisms), recognized pests, pathways and review of phytosanitary policy. The process consists of three stages: 1: Initiation; 2: Pest risk assessment; and 3: Pest risk management.
PRAs are conducted both at the Commonwealth level and the State level.
A PRA is not a simple document. It is apparent from ISPM 2 and ISPM 11 (below) that the requirements of a PRA require extensive scientific investigation and communication with stakeholders.
An example of a PRA carried out by the Commonwealth is 'Final nonregulated analysis of existing policy for California table grapes to Western Australia July 2013' (Exhibit 9, pages 300 592). That PRA is 284 pages.
Australia's international pest quarantine obligations
Australia is a party to the World Trade Agreement of 15 April 1994 (the WTO Agreement).
As a party to the WTO Agreement, Australia is bound to conform to the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) (Exhibit 9, pages 16 27).
A 'phytosanitary measure' means 'any legislation, regulation or official procedures having the purpose to prevent the introduction and/or spread of pests' (Exhibit 9, page 40).
The SPS Agreement relevantly provides:
…
Article 2
2.Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.
…
Article 5
1.Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.
2.In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest or disease free areas; relevant ecological and environmental conditions; and quarantine or other treatment.
…
7.In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.
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Article 12
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3.The Committee shall maintain close contact with the relevant international organizations in the field of sanitary and phytosanitary protection, especially with the Codex Alimentarius Commission, the International Office of Epizootics, and the Secretariat of the International Plant Protection Convention, with the objective of securing the best available scientific and technical advice for the administration of this Agreement and in order to ensure that unnecessary duplication of effort is avoided.
…
Australia is also a party to the International Plant Protection Convention (IPPC) (Exhibit 9, pages 36 53). The Secretariat of the IPCC issues international standards for phytosanitary measures. An international standard for phytosanitary measures is commonly known as an ISPM.
The Secretariat of the IPCC has issued a number of ISPMs pursuant to the SPS Agreement. ISPMs 2, 4, 5, 6, 10 and 11 appear in Exhibit 9 at pages 88 207.
ISPM 2 relevantly provides:
BACKGROUND
Pest risk analysis provides the rationale for phytosanitary measures for a specified PRA area. It evaluates scientific evidence to determine whether an organism is a pest. If so, the analysis evaluates the probability of introduction and spread of the pest and the magnitude of potential economic consequences in a defined consequences in a defined area, using biological or other scientific and economic evidence. If the risk is deemed unacceptable, the analysis may continue by suggesting management options that can reduce the risk to an acceptable level. Subsequently, pest risk management options may be used to establish phytosanitary regulations.
For some organisms, it is known beforehand that they are pests, but for others, the question of whether or not they are pests should initially be resolved.
The pest risks posed by the introduction of organisms associated with a particular pathway, such as a commodity, should also be considered in a PRA. The commodity itself may not pose a pest risk but may harbour organisms that are pests. Lists of such organisms are compiled during the initiation stage. Specific organisms may then be analysed individually, or in groups where individual species share common biological characteristics.
Less commonly, the commodity itself may pose a pest risk. When deliberately introduced and established in intended habitats in new areas, organisms imported as commodities (such as plants for planting, biological control agents and other beneficial organisms, and living modified organisms (LMOs)) may pose a risk of accidentally spreading to unintended habitats causing injury to plants or plant products. Such risks may also be analysed using the PRA process.
The PRA process is applied to pests of cultivated plants and wild flora, in accordance with the scope of the IPPC. It does not cover the analysis of risks beyond the scope of the IPPC.
Provisions of other international agreements may address risk assessment (e.g. the Convention on Biological Diversity and the Cartagena Protocol on Biosafety to that convention).
…
The PRA structure
The PRA process consists of three stages:
-Stage 1: Initiation
-Stage 2: Pest risk assessment
-Stage 3: Pest risk management.
Information gathering, documentation and risk communication are carried out throughout the PRA process. PRA is not necessarily a linear process because, in conducting the entire analysis, it may be necessary to go back and forth between various stages.
…
1.5Conclusion of initiation
At the end of PRA Stage 1, pests and pathways of concern will have been identified and the PRA area defined. Relevant information will have been collected and pests identified as candidates for further assessment, either individually or in association with a pathway.
Organisms determined not to be pests and pathways not carrying pests need not be further assessed. The decision and rationale should be recorded and communicated, as appropriate.
Where an organism has been determined to be a pest the process may continue to PRA Stage 2. Where a list of pests has been identified for a pathway, pests may be assessed as groups, where biologically similar, or separately.
Where the PRA is specifically aimed at determining if the pest should be regulated as a quarantine pest, the process may proceed immediately to the pest categorization step of pest risk assessment (PRA Stage 2) of ISPM 11:2004. That ISPM is relevant for organisms that appear to meet the following criteria:
-not present in the PRA area or, if present, of limited distribution and subject to official control or being considered for official control
-having the potential to cause injury to plants or plant products in the PRA area
-having the potential to establish and spread in the PRA area.
…
2.2Summary of PRA Stage 2: Pest risk assessment
Stage 2 involves several steps:
-pest categorization: the determination of whether the pest has the characteristics of a quarantine pest or RNQP, respectively assessment of introduction and spread:
•candidates for quarantine pests: the identification of the endangered area and assessment of the probability of introduction and spread
•candidates for RNQPs: assessment of whether the plants for planting are or will be the main source of pest infestation, in comparison to other sources of infestation of the area[.]
…
2.3Summary of PRA Stage 3: Pest risk management
Stage 3 involves the identification of phytosanitary measures that (alone or in combination) reduce the risk to an acceptable level.
Phytosanitary measures are not justified if the pest risk is considered acceptable or if they are not feasible (e.g. as may be the case with natural spread). However, even in such cases contracting parties may decide to maintain a low level of monitoring or audit regarding the pest risk to ensure that future changes in that risk are identified.
The conclusion of the pest risk management stage will be whether or not appropriate phytosanitary measures adequate to reduce the pest risk to an acceptable level are available, cost-effective and feasible.
In addition to standards for PRA (Table 1), other standards provide specific technical guidance to pest risk management options.
…
3.3Documentation
The principle of transparency requires that contracting parties should, on request, make available the technical justification for phytosanitary requirements. Thus, the PRA should be sufficiently documented. Documenting PRA has two levels:
-documenting the general PRA process
-documenting each analysis made.
…
3.4Risk communication
Risk communication is generally recognized as an interactive process allowing exchange of information between the NPPO and stakeholders. It is not simply a one-way movement of information or about making stakeholders understand the risk situation, but is meant to reconcile the views of scientists, stakeholders, politicians etc. in order to:
-achieve a common understanding of the pest risks
-develop credible pest risk management options
-develop credible and consistent regulations and policies to deal with pest risks
-promote awareness of the phytosanitary issues under consideration.
At the end of the PRA, evidence supporting the PRA, the proposed mitigations and uncertainties should preferably be communicated to stakeholders and other interested parties, including other contracting parties, RPPOs and NPPOs, as appropriate.
…
ISPM 11 relevantly provides:
1.1.1PRA initiated by the identification of a pathway
The need for a new or revised PRA of a specific pathway may arise in the following situations:
-International trade is initiated in a commodity not previously imported into the country (usually a plant or plant product, including genetically altered plants) or a commodity from a new area or new country of origin.
-New plant species are imported for selection and scientific research purposes.
-A pathway other than commodity import is identified (natural spread, packing material, mail, garbage, passenger baggage etc.).
A list of pests likely to be associated with the pathway (e.g. carried by the commodity) may be generated by any combination of official sources, databases, scientific and other literature, or expert consultation. It is preferable to prioritize the listing, based on expert judgement on pest distribution and types of pests. If no potential quarantine pests are identified as likely to follow the pathway, the PRA may stop at this point.
S2The phrase 'genetically altered plants' is understood to mean plants obtained through the use of modern biotechnology.
…
2.1.1Elements of categorization
The categorization of a pest as a quarantine pest includes the following primary elements:
-identity of the pest
-presence or absence in the PRA area
-regulatory status
-potential for establishment and spread in PRA area
-potential for economic consequences (including environmental consequences) in the PRA area.
…
2.2.1.2Probability of the pest being associated with the pathway at origin
The probability of the pest being associated, spatially or temporally, with the pathway at origin should be estimated. Factors to consider are:
-prevalence of the pest in the source area
-occurrence of the pest in a life stage that would be associated with commodities, containers, or conveyances
-volume and frequency of movement along the pathway
-seasonal timing
-pest management, cultural and commercial procedures applied at the place of origin (application of plant protection products, handling, culling, [rogueing], grading).
…
2.2.2.1Availability of suitable hosts, alternate hosts and vectors in the PRA area
Factors to consider are:
-whether hosts and alternate hosts are present and how abundant or widely distributed they may be
-whether hosts and alternate hosts occur within sufficient geographic proximity to allow the pest to complete its life cycle
-whether there are other plant species, which could prove to be suitable hosts in the absence of the usual host species
-whether a vector, if needed for dispersal of the pest, is already present in the PRA area or likely to be introduced
-whether another vector species occurs in the PRA area.
The taxonomic level at which hosts are considered should normally be the 'species'. The use of higher or lower taxonomic levels should be justified by scientifically sound rationale.
2.2.2.2Suitability of environment
Factors in the environment (e.g. suitability of climate, soil, pest and host competition) that are critical to the development of the pest, its host and if applicable its vector, and to their ability to survive periods of climatic stress and complete their life cycles, should be identified. It should be noted that the environment is likely to have different effects on the pest, its host and its vector. This needs to be recognized in determining whether the interaction between these organisms in the area of origin is maintained in the PRA area to the benefit or detriment of the pest. The probability of establishment in a protected environment, e.g. in glasshouses, should also be considered.
Climatic modelling systems may be used to compare climatic data on the known distribution of a pest with that in the PRA area.
The SPS Agreement, ISPM 2 and ISPM 11 make it clear that the preparation of a PRA is a significant undertaking by the Director General.
Commonwealth/State Agreements
On 21 December 1995, the Commonwealth and the States entered into a Memorandum of Understanding on Animal and Plant Quarantine Measures (MOU). The MOU relevantly provides:
…
E.The States and Territories have legal competence for establishing and maintaining quarantine measures to the extent that they are consistent with Commonwealth legislation.
APPLICATION
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3.This Memorandum shall apply to all animal and plant quarantine measures which are relevant sanitary and phytosanitary measures and which may directly or indirectly affect trade into Australia.
4.This Memorandum shall be deemed to have come into effect on 1 January 1995, the date on which Australia assumed its obligations under the WTO Agreement.
…
7.This Memorandum shall not create legal obligations binding on the parties.
OBJECTIVE
8.The objective of this Memorandum is to enable compliance by Australia with relevant obligations under the SPS Agreement.
ELEMENTS OF AGREEMENT
9.States and Territories shall consult fully with the Commonwealth before implementing any relevant sanitary or phytosanitary measures which could inhibit trade into Australia and which may not conform with the provisions of the SPS Agreement.
…
11.States and Territories shall not apply any relevant sanitary or phytosanitary measures within their jurisdictions which would not conform with the provisions of the SPS Agreement.
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In 2012, the Commonwealth and the States entered into the Intergovernmental Agreement on Biosecurity (IGOB) (Exhibit 9, pages 54 87) which relevantly provides:
…
2.PURPOSE OF THE AGREEMENT
2.1The Intergovernmental Agreement on Biosecurity (the Agreement) will enhance Australia's biosecurity system and strengthen the collaborative approach between the Commonwealth of Australia' (the Commonwealth) and state and territory governments (the Parties) to address Australia's broad range of biosecurity issues.
…
2.4This Agreement is not intended to create legal relations between the Parties. Notwithstanding this, the Parties intend to comply with all provisions in the Agreement and its schedules.
4.Principles
4.1.The following principles underpin the national biosecurity system.
(i)Biosecurity is a shared-responsibility between all governments, industry, natural resource managers, custodians or users, and the community.
(ii)in practical terms, zero biosecurity is unattainable.
…
(v)Activity is undertaken and investment is allocated according to a cost-effective, science-based and riskmanagement approach, prioritising the allocation of resources to the areas of greatest return.
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(vii)Governments, industry, and other relevant parties are involved in decision-making, according to their roles, responsibilities and contributions.
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5.Key Components and Features
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5.2.Through this Agreement, the Parties commit to a strengthened national biosecurity system based on the following components:
(i)One Appropriate Level of Protection (ALOP).
(ii)Biosecurity measures on domestic movement of goods and vectors are scientifically justified and are the least trade restrictive to meet Australia's ALOP.
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5.3Decisions on investments across these components will be supported by:
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(vii)Effective engagement and communication between all key biosecurity stakeholders.
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7.15To support the operation of effective and efficient biosecurity controls and facilitate interstate trade, the Parties agree to limit the application of interstate biosecurity measures to the level necessary to mitigate risks to the economy, environment and community. These measures will be the least trade restrictive possible and based on a scientific analysis of the risk of entry, establishment and spread of a pest or disease and applied only to the extent necessary to achieve Australia's ALOP. States and territories will accept alternate interstate biosecurity measures where they achieve equivalent biosecurity risk reductions.
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7.17Where, as part of a national approach to managing established pests and diseases, regional measures are required, they will be applied under state and territory legislation.
The relevant legislation
Section 3(1) of the Act provides:
(1)The objects of this Act are to provide effective biosecurity and agriculture management for the State by providing the means to -
(a)control the entry, establishment, spread and impact of organisms that have or may have an adverse effect on -
(i)other organisms; or
(ii)human beings; or
(iii)the environment or part of the environment; or
(iv)agricultural activities, fishing or pearling activities, or related commercial activities, carried on, or intended to be carried on, in the State or part of the State;
and
(b)control the use of agricultural and veterinary chemicals; and
(c)establish standards to ensure the safety and quality of agricultural products; and
(d)raise funds for biosecurity-related purposes.
The term 'plant' is broadly defined in s 6 of the Act as including, inter alia, the fruit of a plant and any other product or part of a plant. Table grapes are plants within the meaning of s 6 of the Act.
Section 15(3) of the Act provides that it is an offence for a person to import a prescribed potential carrier unless (a) the import is permitted under the Regulations and (b) the prescribed potential carrier is imported in accordance with the Regulations.
A 'plant' is a prescribed potential carrier: reg 5(d) of the Regulations.
Regulation 72(2) of the Regulations relevantly provides:
(2)For the purposes of section 15(3)(a), the import of a prescribed potential carrier is permitted if -
(a)the carrier -
(i)is imported as authorised by, and in accordance with the terms and conditions of, an import permit; or
(ii)is treated in accordance with, or otherwise satisfies, the import requirements, if any, that apply to a carrier of that kind and an inspector does not require the carrier to be further treated before it is removed from an inspection point[.]
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(4)The Director General may publish import requirements on the department's website for the purposes of subregulation (2)(a)(ii).
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The term 'import permit' is defined in s 6 of the Act as 'a permit issued under section 16(2)'.
Importation usually occurs pursuant to import requirements published on the Department of Agriculture and Food WA's website, known as Western Australian Import Requirements: s 15(3) of the Act; reg 72(2)(a)(ii) and (4) of the Regulations.
Brimcove is seeking an individual permit under s 16(2) of the Act.
Section 16 of the Act provides:
(1)A person may apply for an import permit in accordance with the regulations.
(2)The Director General may issue, or refuse to issue, an import permit.
(3)An import permit may be issued subject to conditions.
Applications for import permits are made in accordance with reg 91 of the Regulations.
The Director General 'may grant or renew, or refuse to grant or renew, a permit' (reg 93 of the Regulations).
Where a permit is granted, reg 94 provides that the permit must set out:
(a)the name of the person to whom it is granted;
(b)the scientific name or group of the organism or declared pest, if any, to which the permit applies;
(c)the activities or procedures that are authorised under the permit;
(d)any conditions to which the permit is subject;
(e)any other details that the Director General considers appropriate.
The permit is to specify the duration of the permit, which period must not exceed five years (reg 96 of the Regulations).
A permit is subject to any conditions imposed under the Regulations by the Director General (reg 97 of the Regulations).
A decision by the Director General to refuse to grant a permit is a decision in respect of which a person aggrieved may apply to the Tribunal for a review of the decision (reg 102 of the Regulations).
The issues
Brimcove submits that the Director General has failed to comply with the policy reflected in the IGOB.
Brimcove submits that the relevant policy is that phytosanitary measures should only be applied to the minimum extent necessary so as to minimise the effect on interstate trade.
At the heart of Brimcove's submission is the contention that the Director General's failure to issue a permit to import table grapes from Victoria is a breach of policy. Brimcove contends that the relevant policy requires that the Director General should have completed a pest risk analysis within a reasonable time.
Brimcove further contends that given that the Director General has taken an unreasonable amount of time to undertake a PRA, an import permit should be issued by this Tribunal despite the fact that a PRA has not been completed.
The Director General submits that, whatever the delays, a decision should not be made until the Draft PRA is completed.
Accordingly, the Director General submits that Brimcove's application should be dismissed.
Brimcove's application to the Director General
Mr Grant Etherington, on behalf of Brimcove, applied to the Director General for an import permit on 12 March 2014 (Exhibit 9, pages 10 13).
On 19 July 2014 the Director General refused Brimcove's application (Exhibit 9, pages 1 2). His reasons stated:
The original prohibition was implemented due to biosecurity risks posed by phylloxera (Daktulosphaira vitifolii) and downy mildew (Plasmopara viticola). In 2008, Phomopsis viticola and grapevine fanleaf virus were identified as biosecurity concerns but downy mildew was no longer an issue as it had become endemic in WA. Completion of a pest risk analysis may identify other pests of concern.
The Department of Agriculture and Food, Western Australia (the Department) has initiated a pest risk analysis, considering the biosecurity risks associated with the import of fresh table grape bunches from other Australian states and territories into WA.
…
After considering the differing risk profiles for table grapes imported from California and Victoria (and other Australian states and territories) and the lack of prophylactic risk mitigation measures I have determined that the import of fresh table grapes from Victoria into WA is not possible without exposing the [sic] Western Australia to an unacceptable level of biosecurity risk. Consequently, your application for an important permit is refused pending the outcome of the pest risk analysis process.
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Brimcove's solicitors wrote to the Director General on 24 June 2014 seeking written reasons pursuant to s 21 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) (Exhibit 9, pages 3 4).
The Director General responded on 17 July 2014 (Exhibit 9, pages 5 9):
The Department of Agriculture and Food, Western Australia's (the Department) import conditions are based upon processes similar to those used by the Commonwealth Government. One commonality is that the importation of potential carriers into the applicable jurisdiction is essentially prohibited unless certain requirements are met.
In the case of the Commonwealth the import into Australia of a fresh fruit or vegetable is prohibited unless a Director of Quarantine has granted the person a permit to import it into Australia (Quarantine Proclamation 1998 section 64(2)). Under Western Australia's Biosecurity and Agriculture Management Act 2007 section 15(3) a person must not import a prescribed potential carrier unless the import is permitted under the regulations and the prescribed potential carrier is imported in accordance with the regulations. Fresh fruit is a prescribed potential carrier under regulation 5 of the Biosecurity and Agriculture Management Regulations 2013.
The Commonwealth Government undertakes an import risk analysis when relevant risk management measures have not been established, or relevant risk management measures for a similar good and pest combination do exist, but the likelihood and/or consequences of entry, establishment or spread of pests could differ significantly from those previously assessed. A risk analysis which does not meet these criteria is undertaken as a non-regulated analysis of existing policy ( Department follows a similar process where pest risk analyses are conducted to identify the pests which could be associated with the import, determine the likelihood of a pest entering, establishing and spreading in Western Australia and the consequences of a pest entry, establishment and spread. The pest risk analyses then considers what, if any, pest risk mitigation measures are required.
Please consider the above information in conjunction with my responses to each of the points raised in your letter. Given the uncertainties described in my letter to your client and that the Department's pest risk analysis for fresh table grapes from other Australian states and territories has not yet been completed I am unable to justify the grant of an import permit. The conclusions of the pest risk analysis will enable me to make a fully informed decision regarding the import of fresh table grapes from other Australian states and territories.
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Brimcove's application for review to the Tribunal
On 18 July 2014 Brimcove filed an application for review of the Director General's decision of the 12 March 2014 (the SAT Application). In the grounds of review in the SAT Application, Brimcove stated that '… the decision was based on conclusions of fact unsupported by evidence, the decisionmaker took into account irrelevant considerations and the decisionmaker acted unreasonably'.
The language above is more akin to the language of a judicial review, rather than a merits review. There was some preliminary and unproductive skirmishing between the parties as to the grounds of review. These matters were not taken up at the hearing, and rightly so.
Brimcove's ultimate contention at the hearing was that there has been 'inordinate delay' by the Director General in completing the PRA (Brimcove's submissions for hearing, 3 December 2014).
The use of policy
In Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission[2002] WASCA 276; 122 LGERA 433 (Clive Elliott Jennings) at [24] - [26] Barker J held:
[24]In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
[25]Much has been written about the use of policy in administrative decision-making. Administrators do not act unlawfully in adopting policies to structure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1971] AC 61O; R v Eastleigh Borough Council; ex parte Betts [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 illustrates. This principle aside, the importance of the use of 'policies' in the exercise of discretionary planning powers in Western Australia is well recognised: see, for example, Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428.
[26]A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons': 644 5.
Clive Elliott Jennings was applied in Zampatti v Western Australian Planning Commission [2010] WASCA 149; 176 LGERA 150 at [9] and [10] per Pullin JA, with whom Buss JA agreed.
The relevant policy
Brimcove correctly submits that the policy on phytosanitary measures is expressed in the IGOB; that is, the SPS Agreement and the relevant ISPMs. The Tribunal does not understand the Director General to take a contrary position.
A PRA is the means by which effect is given to the principle articulated in Article 2.2 of the SPS Agreement; that is, that phytosanitary measures should be applied only to the extent necessary to protect human, animal or plant life or health.
The SPS Agreement was entered into by Australia in the context of the WTO Agreement. Accordingly, restrictions on international trade that are not justified by Article 2.2 are impermissible. By reason of the Commonwealth/State agreements, that principle applies equally to interstate trade. Equally, a PRA is the appropriate means by which a phytosanitary measure is to be tested as to whether it is an impermissible restriction.
Was the delay unreasonable?
At the hearing, Brimcove filed a detailed chronology, based on the documents filed under s 24 of the SAT Act, for the period from 14 October 1998 to 23 October 2013. A copy of the chronology is attached to these reasons.
On September 2011, the preparation of a PRA for the import of table grapes was formally announced by the Director General.
Brimcove's chronology supports Brimcove's submission that at least since late 1998 officers of the Director General's Department have been engaged in sporadic efforts to prepare a PRA for the import of table grapes.
Brimcove submits that there has been a delay of some 15 years and that this delay is unreasonable. At paragraph 9 of its submissions the Director General states:
[The Director General] concedes that the time that has been taken to complete the pest risk analysis has been longer than could be regarded as desirable. Whether or not there is any proper explanation for the delay, or whether there has been any contravention of the SPS Agreement, are not relevant questions for determination in these proceedings. Clearly, there is a long history.
Brimcove's detailed submissions are as follows:
8.What is a reasonable period of time within the meaning of Article 5 paragraph 7 of the SPS Agreement is a question of fact to be determined having regard to all the circumstances: Australian Conference Association Ltd v Mainline Construction Pty Ltd (in liq) (1978) 141 CLR 335, 354 per Gibbs ACJ, Jacobs and Murphy JJ agreeing; Louinder v Leis (1982) 148 CLR 509; 527 per Mason J, Stephen and Wilson JJ agreeing.
9.The relevant circumstances in this matter for determining what is a reasonable period of time include:
9.1The obvious object of Article 5 paragraph 7 of the SPS Agreement is to ensure that phytosanitary measures imposed in the absence of sufficient relevant scientific evidence do not continue longer than necessary.
9.2The Intergovernmental Agreement contemplated all Australian Governments (Commonwealth, States and Territories) applying the SPS Agreement (clause 7.8) using co-operative and standard measures.
9.3The period of time prescribed for the Commonwealth for preparation of a comparable IRA should therefore be used as an important guide to determining what is a reasonable period of time for the purposes of Article 5 paragraph 7 of the SPS Agreement in this matter. In that regard, the WA Department[']s Pest Risk Analysis, which has been on foot since 1998, is comparable to a regulated Commonwealth IRA for the following reasons:-
9.3.1The process for classifying a Commonwealth IRA is set out at page 271 of the Respondent's bundle (Document 18).
9.3.2A Commonwealth IRA may be regulated or non regulated. If it is regulated, it may be either a standard or an expanded IRA.
9.3.3A regulated IRA is the appropriate IRA where there are no relevant risk management measures in place existing measures or where measures that are in place for a similar good and pest/disease do exist but, the likelihood/and or consequence of entry differ significantly. A non-regulated IRA is used to review existing policies (RB 274).
9.3.4WA has not previously developed risk management measures in place in regard to interstate importation of table grapes and the associated pests. Accordingly, the PRA currently being undertaken is comparable to a regulated IRA.
9.3.5The Commonwealth Quarantine Regulations provide that standard regulated IRA is to be completed in 24 months and expanded regulated IRA is to be completed in 30 months (Regulation 69E of the Quarantine Regulations). Even if it were accepted that the PRA was commenced in 2011 (which is clearly not the case) the timeframe has already expired, and will have long expired by the now-projected completion time of October 2015.
9.4It is clear that the Department has caused the State to not comply with the Intergovernmental Agreement and the SPS Agreement and has failed to apply the WA Government policy by maintaining a complete prohibition on interstate importation of table grapes on a purportedly interim basis over 14 years without any scientific basis.
9.5The Department cannot genuinely attribute the delay in completing the PRA to a lack of necessary information. The Department requested pest lists from other States in 1998 (RSB page 329). The Department was provided with a pest list by AQIS in July 1999 (RSB page 338 to 361) and was informed in 1999 that pest lists for other states and territories were with AQIS and available to WA (RSB page 363).
10.In the circumstances, the Tribunal should find that refusal of the permit sought would result in the State not complying with clause 7.8 of the Intergovernmental Agreement because refusal would continue the prohibition on importation of interstate table grapes beyond a reasonable period of time. Accordingly, refusal of the permit would be contrary to the WA Government policy referred to in paras 2 and 4 above.
A Commonwealth Import Risk Analysis (IRA) is essentially a PRA. The Tribunal accepts paragraphs 8, 9.1 and 9.2 of Brimcove's submission.
The Tribunal does not accept that the period of time prescribed by the Commonwealth for the preparation of an IRA necessarily provides a basis for a reasonable amount of time within which to complete a State PRA. The two year permit specified in the Commonwealth Quarantine Regulations is a legislated period. There is no comparable period in the Act or the Regulations. The State has not seen fit to legislate on the period of time within which to complete a PRA. Therefore, each PRA should be considered on a case by case basis.
The effect of the Director General's failure to prepare a PRA on the import of table grapes from other States has led to a prohibition of such imports.
However, if by paragraph 9.4 Brimcove contends that effect was a deliberate decision by the Director General, the Tribunal rejects that contention.
Brimcove submits that the Director General had not, and did not, until after Brimcove's application to the Tribunal was filed, allocate sufficient resources to carry out a PRA.
It could not reasonably be expected that upon the signing of the MOU or the IGOB that the Director General would immediately undertake a PRA of all possible imports from other States. There are competing priorities.
Brimcove did not file an application for an import permit until 12 March 2014. The time taken to commence a PRA since that date is not unreasonable.
What the documents also disclose is that the delay has been a matter of lack of resources, rather than any attempt to delay a pest risk analysis. Mr Marc Poole, a Research Officer of the Biosecurity and Regulation Division of the Department, gave evidence that, since 2000, he had been working on the pest risk analysis for the importation of table grapes from other Australian States and Territories on a resource prioritisation basis (Exhibit 1, paragraphs 10 and 12). He accepts that the work on the draft pest risk analysis has been of a stop/start nature (Exhibit 1, paragraph 38).
Ms Simone Tuten, Project Manager, Biosecurity and Regulation at the Department of Agriculture and Food, notes that the work has been carried out amongst various other functions and responsibilities of the officers involved and states that the preparation of PRAs is largely reactive in nature and provides an indication of competing priorities and the resultant regular changes in priorities (Exhibit 2, paragraph 50).
Given the competing demands on the limited resources of any government department, this Tribunal ought to be cautious in effectively directing how those resources are to be allocated.
Brimcove contends that the Director General's actions are driven by a protectionist bent. The alternative and simpler explanation is that the preparation of a PRA for table grapes has been lost in a welter of competing obligations. The Tribunal prefers the simpler explanation.
The Tribunal is not able to discern anything in the conduct of the Director General to suggest that the conduct of the Director General or his Department has been aimed at avoiding the implementation of a pest risk analysis for table grapes. Rather, it seems only to have occurred as a consequence of the demands arising from competing priorities.
Delay per se
Delay cannot of itself be a sufficient reason to grant an import permit.
The powers of the Tribunal under the SAT Act are not to be exercised for punitive purposes. Rather, they are to be exercised in the public interest.
The importance of engagement with stakeholders
The importance of engagement and communication with stakeholders is reflected in:
1)ISPM 2 at 3.4; and
2)IGOB at 5.3(viii).
The Commonwealth's Import Risk Analysis also reflects the importance of communication with stakeholders (Exhibit 9, page 222).
Preparation of a PRA involves engagement with stakeholders.
A party cannot adopt only some parts of a policy. The SPS Agreement, and associated ISPMs, are the appropriate policy. Of necessity, the stakeholders must be engaged.
As at the date of the hearing that engagement had not taken place.
No cogent reason has been advanced by Brimcove as to why a significant part of the PRA process should effectively be overlooked by this Tribunal.
Scientific evidence
Brimcove made comprehensive submissions on the scientific evidence. The Tribunal has not addressed those submissions because, even if Brimcove is correct, stakeholder engagement still needs to take place.
What steps remain?
The Director General's submissions state that the following steps remain in the PRA process:
45.The first remaining step is to complete the pest categorisation. The function of this step is to determine what pests are associated with grapes and what pests are of sufficient concern as to require a full risk assessment. This step is very close to completion. Recent work has identified new pests which are to undergo a full risk assessment.
46.The next remaining step is to complete a draft risk assessment of pests of concern for release for public and stakeholder consultation. The function of this step is to form a preliminary assessment, pending public and stakeholder consultation, as to whether any pests exceed the ALOP and any necessary mitigation measures. This is largely driven by quarantine entomologists and plant pathologists.
47.The quarantine entomologists and plant pathologists are required to make a series of interim and provisional policy decisions in creating the draft risk analysis for consultation. A range of factors are required to be taken into account. A range of assumptions are required to be made. Finely balanced value judgments are required to be made. The potential consequences are serious. Heerey and Lander JJ described the Commonwealth's equivalent process in Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368 at [4] as a process which involves 'fact finding and the making of value judgements and risk assessments in a complex scientific setting.'
48.The next remaining step is consultation. The consultation serves a range of important objectives. It is designed to:
(a)Achieve a common understanding of the pest risks.
(b)Develop credible pest risk management options.
(c)Develop credible and consistent regulations and policies to deal with pest risks.
(d)Promote awareness of the phytosanitary issues under consideration.
49.Consultation is a recognised and accepted aspect of good governance when decisions and value judgments which affect a range of stakeholders and the general community are to be made. This is reflected in various legislation such as the Planning and Development Act 2005 (WA), the Environmental Protection Act 1986 (WA) and the Conservation and Land Management Act 1984 (WA).
50.The Tribunal does not have the benefit of the input of relevant stakeholders in these proceedings. The stakeholders include the other Australian states and territories, grape producers in the other states and territories, potential importers such as the Applicant, industries in Western Australia who may be affected by any pests which are introduced as a result of the import of grapes and the general public. Decisions affecting the various stakeholders should not be made without proper consultation.
51.The final remaining step is for DAFWA to finalise the pest risk analysis. This involves the entomologist and plant pathologist completing their work with the benefit of the consultation process. The work is then checked and approved by experienced biosecurity officers for ultimate submission to the Respondent, who is entrusted with the responsibility of determining import requirements, for a final policy decision. The final policy decision will be reflected in the import requirements. It is not possible to know now what the import requirements will ultimately be.
The Director General expects to complete the PRA process by October 2015.
The Tribunal is not persuaded that there is anything in the Director General's conduct to suspect that the Director General will not adhere to that completion date.
Conclusion
Having regard to the objectives of the Act, it is proper that the Tribunal consider what is the correct and preferable decision as at the date of the hearing. The issue for the Tribunal is whether it is correct and preferable to:
a)wait until the PRA is completed and the import requirements are published based on the completed pest risk analysis; or
b)grant an import permit now.
In the end, the Tribunal has to balance Brimcove's financial interest in importing grapes from Victoria against the public interest in completing the PRA.
A single application before the Tribunal is necessarily incapable of properly bringing to bear the public interest considerations that favour completing the PRA.
The correct and preferable decision is to wait until the PRA is completed.
Accordingly, Brimcove's application is dismissed.
Order
1. The application by Brimcove Pty Ltd is dismissed.
I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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