Who is liable for an outbreak of plant disease?
Biosecurity issues never seem to be far from the news these days. The Ministry of Primary Industries (MPI) is responsible for biosecurity in New Zealand and gets its powers in relation to biosecurity under the Biosecurity Act 1993. The purpose of the biosecurity system that the Act puts in place is to prevent or manage risks from harmful organisms such as pests and diseases. It does this by attempting to stop pests and diseases before they arrive in the country and, if they do, by trying to either eradicate or manage them.
Psa, varroa mite, myrtle rust and Mycoplasma bovis have all recently caused major issues. Now MPI is seeking the destruction of tens of thousands of plant cuttings and trees that were imported from an American nursery in the state of Washington after an audit uncovered irregularities in the nursery’s processes.
MPI has been criticised in relation to its decision to require those cuttings to be either destroyed or contained. However, following the decision in the Strathboss case, who can blame them?
That case was in relation to the Psa bacteria. The High Court found that the Ministry of Agriculture & Fisheries (now MPI) owed and breached a duty of care to kiwifruit orchardists in negligently allowing the Psa bacteria into New Zealand. The Psa bacteria had caused significant loss to North Island kiwifruit orchards.
That case is (not surprisingly) being appealed by the Crown. It does show, however, that the potential liability for the Crown in relation to biosecurity breaches is significant.
The Strathboss case is a negligence case. Simply put, the argument was that the Crown owes a duty of care (under the Biosecurity Act) to the kiwifruit orchardists. The court held it was reasonably foreseeable that if the Crown was negligent then the orchardists would suffer loss. Once the court found that the Crown had breached its duty of care by a series of errors, liability followed.
It is obviously a situation that the dairy industry will be looking at closely as, presumably, will the fruit growers.
Auditing overseas nurseries
One of the biosecurity mechanisms MPI relies on is the audit of overseas nurseries to ensure that new fruitwood stock arrives free of pests and diseases. Is it sufficient for those nurseries to be audited every five or six years, which is what appears to have happened in the Washington state situation?
Given the economic significance to the industry involved and the risks attached to a biosecurity breach, how often should these nursery facilities be audited? If audits took place annually, and the nursery was found wanting, potentially only one year’s cuttings arriving in New Zealand would be affected. If audits happen less regularly, cuttings will have been planted in orchards and become trees. In biosecurity terms, if there are issues, then the horse may well have bolted.
How can New Zealand be better protected?
The other issue that these biosecurity issues raise is – to what extent can we expect MPI to protect us from overseas pests and diseases? With the free flow of people and trade around the world, can we seriously expect to keep our islands free of pests and diseases?
The answer is surely that no matter how well MPI is resourced and how much power it is given in law, it simply isn’t possible to keep New Zealand completely free of pests or diseases.
Anyone flying into Auckland International Airport at 6am and seeing the masses of people in the customs queues or is on a wharf to see the pile of containers at our ports can understand that.
The answer is that any response is always going to be a mix of legislative/government responsibility and action from the industry bodies themselves by, for example, breeding pest or disease-resistant plants or similar methods of control.
 Strathboss Kiwifruit Limited v Attorney General  NZHC 1559.