New Zealand Pork Industry Board v The Director-General of the Ministry for Primary Industries [2013] NZSC 154

At the end of last year the Supreme Court, agreeing with the High Court and Court of Appeal, found that the Ministry for Primary Industries (MPI) followed a proper decision-making process before it allowed imports into New Zealand of raw pork from countries where the highly contagious Porcine Reproductive and Respiratory Syndrome (PRRS) (blue ear pig disease) is found.

The Biosecurity Act 1991 empowers MPI to decide on biosecurity measures to protect against high-risk imports.  The relevant provisions also prescribe the matters MPI must consider in making such decisions.  In 2011 MPI's Director-General produced biosecurity standards (Standards) that would permit the importing of raw pig meat from countries where PRRS is present (where importing was previously restricted).  The decision followed consultation with interested parties and a consideration by a statutory independent review panel.

The New Zealand Pork Industry Board (Board) objected to the Standards during consultation and sought judicial review of MPI's decision-making process, alleging MPI did not comply with the Act and acted with procedural impropriety.  The Board argued it was improper for officials, whose work was the very subject matter of the disputed issues, to prepare the decision paper of such issues.  It also argued the issue was predetermined because of a lack of further consultation on a revised model of risk analysis.  The High Court restricted the introduction of the Standards pending the case's outcome.  The High Court and Court of Appeal both found in favour of MPI, and the Board appealed further to the Supreme Court. 

The Supreme Court found that MPI's risk analysis, reports, expert working group, and consultation procedure met the standard required of MPI under the Act.  Risk assessments were inevitably subjective, and focussed on minimisation rather than elimination, and it was impossible to demand precision in the face of differing expert reports.  All reports had adequately been considered, including those critical of MPI's policy choice.  Above all, the Act was interpreted as not demanding each and every review or report be considered separately.  The process was to be considered as a whole.  Subsequently, the interim restriction initially placed on the Standard has been lifted.

Chief Justice Elias gave a separate minority opinion, agreeing largely with Justice White (Court of Appeal minority) that strict adherence to procedures is essential to decision-making in areas of acknowledged risk, complicated factors and the possibility of significant adverse consequences if the wrong decision were made.  MPI's failure to consult on the revised risk analysis fell short of the standard required of MPI, because it meant that the novel and sensitive model had not been informed by sufficient empirical information and scientific knowledge before it was adopted, and the risk was resultantly not appropriately calculated.  Her Honour ultimately found that the Act's procedures were not followed and that the Standards were invalid.

This case illustrates the nature and procedure of the Courts' judicial review function.  In spite of the favourable outcome for MPI, however, the case effectively postponed the issuance of the Standards, and led to a sustained minority opinion on the function of public decision-making, which is testament to the gravity and importance of any judicial review process.