Precedent setting? — Editorial

While the Government has yet to decide if it will appeal the ruling, if it sticks it will be precedent-setting.

Growers who joined the class action argued that the former Ministry of Agriculture (now Ministry for Primary Industries) had allowed Te Puke company Kiwi Pollen to import kiwifruit pollen for the first time in April 2007 through to 2010. They argued the officials should have properly analysed the risk from imports, given that kiwifruit pollen had not been brought into New Zealand before and officials had failed to inform the kiwifruit industry about the imports.

Justice Jillian Mallon agreed with the complainants and ruled that MAF owed a duty of care to kiwifruit growers because it had responsibility for controlling what goods could be imported into NZ. She ruled that MAF had breached its duty of care in its decision on whether to grant import permits for kiwifruit pollen.

Justice Mallon also ruled that the claimants had proven on the balance of probability that the consignment of anthers containing pollen was the cause of the outbreak.

As Lincoln University senior lecturer in agribusiness Nic Lees says, this means MPI can be liable for its decisions on importation of any product that may have biosecurity risks.

“In the past MPI has done risk assessments on importing products, but the risk of a biosecurity failure has rested with the industry not MPI. This fundamentally changes that. Now MPI (and by proxy the government) is legally liable for a biosecurity failure.”

The High Court decision is contained in a 500-page document that traverses events dating back 12 years -- pre-dating the establishment of MPI. Interestingly, it also gives the lie to the current Government’s reaction to the ruling -- putting all the blame for the Psa outbreak on the previous administration. The allegedly infected imports first came into NZ in April 2007 during the previous Labour/NZ First government’s watch.

However, petty finger-pointing by politicians will soon mean nothing if this court ruling holds because governments of whatever political colour could be confronted with more hefty compensation claims for current and future biosecurity breaches. 

Precedent setting indeed.