Since December 2007, New Zealand has been involved in a WTO dispute with Australia contesting certain restrictions Australia places on the import of New Zealand apples (said to relate to risks of the diseases of fireblight and European canker).
Australia claims, and New Zealand denies, that these are appropriately justified by scientific evidence. Several third parties have now joined this dispute, including Chile, the European Community, Japan and the United States. The WTO Agreement which determines the basis upon which member states may impose health-based import restrictions is the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). On 20 June 2008, after early procedural skirmishing, New Zealand lodged its first written submission in the dispute. Following Australia’s initial response, an oral hearing was held before a WTO panel in September 2008. A further oral hearing is scheduled for June 2009 and New Zealand filed its second detailed written submission on 21 April 2009.
The dispute is highly technical – as is much of the case law on the operation of the SPS Agreement – but the essence of New Zealand’s position is that Australia’s restrictions do not comply with Article 2.2 of that Agreement, which provides 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”. Australia’s case, in essence, is that not all of the measures complained of fall within the scope of the SPS Agreement and that it has, in any event, carried out its own risk assessment pursuant to Article 5 of the Agreement, to which the WTO panel should accord “considerable deference”. The Panel’s decision is expected sometime in January 2010.