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NEW ZEALAND APPLES - NOW ON TO THE WORLD TRADE ORGANIZATION - BY ROSS BECROFT

In the latest chapter of this dispute, New Zealand has requested the establishment of a World Trade Organization Panel to determine whether Australia’s apple import regime complies with the WTO Rules.

In 2007 (and after 86 years) Australia overturned its ban on the importation of apples from New Zealand.

The ban had been in place due to the presence within New Zealand of the fire blight bacteria, which has the potential to damage Australia’s domestic apple industry.

The agency responsible for reviewing the ban is Biosecurity Australia, which is an agency sitting within the Commonwealth Department of Agriculture, Fisheries and Forestry.

Procedurally, Biosecurity Australia issued a Report in late 2006 in which it recommended that New Zealand apples to permitted to be imported into Australia, provided that a number of screening procedures are implemented to reduce risks of infection. These include pre-entry cleaning arrangements and regular orchard inspections in both Australia and New Zealand.

Apple and Pear Australia in early 2007 appealed the Report to the relevant body being the Import Risk Analysis Appeal Panel. It is noteworthy that the grounds of appeal are narrowly prescribed and the appellant would have to show that a significant body of scientific evidence was not considered by Biosecurity Australia (rather than there being a mere disagreement with conclusions). In this case the appeal was unsuccessful.

New Zealand has been pressuring Australia for some time to overturn the ban and is not satisfied with the conditions now imposed on New Zealand apple growers. New Zealand has now taken its grievance to the WTO to argue that the ban was an unjustified restriction on trade. The WTO has previously dealt with international disputes over apples. At the end of 2003, the WTO Appellate Body found against Japan when it sought to maintain a very strict entry and licensing requirements on apples exported from the United States. Whilst there may be peculiarities as to how Japan ran its case and undertook its risk analysis, the ruling would have to some degree influenced Australia's approach to this important issue. It remains to be seen whether a WTO panel agrees with Australia’s approach.

This matter has now gone before a ATO panel and the panel's findings are expected to be handed down early in 2010.

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