Nick Xenophon (SA, Independent) Share this | Hansard source

I rise to speak about an issue which I believe relates to the worst decision the government has made—that is, allowing the importation of New Zealand apples into Australia. I still cannot believe that the government and Biosecurity Australia have allowed the importation of New Zealand apples, which are already reached our shores. We know the consequences of fire blight. We know that fire blight has been a part of New Zealand horticultural in the apple and pear industry for something like 90 years. It has had a significant and devastating impact on the pear industry, which is only a niche industry in New Zealand. It has had a very significant, deep and debilitating impact on the apple industry in New Zealand.

Once you get fire blight—as I said yesterday in the media and I will say here tonight, fire blight is like the herpes of fruit—it will never go away. It will come back and back and you cannot do anything to eradicate it. I am very grateful for the work I have done with my colleagues Senator Colbeck, Senator Heffernan and Senator Milne who are all very concerned about this. I am very gratified for the concern of Senator Madigan in relation to the whole issue of fire blight. This needs to be dealt with with some great urgency. I believe it will be addressed in a private senator's bill I will be introducing in the chamber tomorrow not just targeted at New Zealand apples but in a way that will be WTO compliant so that our biosecurity measures can be robust.

It is important that tonight I set straight some of the answers that were put in the chamber by Senator Conroy representing the minister for trade, the Hon. Dr Emerson. I do not think it is improper for me to say that it is my practice to let the government know the questions I will be asking because I think you get a better answer and I can get a substantive response, particularly if there are technical issues raised. These answers given by the minister on behalf of the minister for trade were clearly considered. The govern­ment had enough time to properly consider them and the answers were quite in deliberate. It is important that the answers be put through some forensic analysis.

The first question I asked of the minister was that on 1 February 2011 the Australian and New Zealand delegations to the World Trade Organisation jointly advised the World Trade Organisation that Australia would be in a position to issue new permits for the importation of apples from New Zealand on 17 August 2011. This announcement was well prior to the completion of the import risk analysis Australia was required to undertake. In fact, it was before the biosecurity services group had conducted the visit to New Zealand upon which Biosecurity Australia hade purported to base its recent risk analysis. The question I asked was: on what basis was the agreement made and on what basis was this date chosen given the import risk analysis had not been complete in February? Why should not the Australian apple growers and pear growers conclude that from no later than one February 2011 the outcome of the risk analysis had been fixed so that New Zealand apples would be coming to Australia?

Senator Colbeck, in his contribution, in reflecting on answers to questions without notice last week, on 18 August, referred to their being a fix in relation to this. I think that is an accurate reflection of what Senator Colbeck said and he is absolutely right. Well, the answer given by the minister was, I think, a quite dismissive answer and a rather arrogant answer given the severity of what is at stake here. The minister said:

Under WTO rules Australia had an obligation to implement the outcomes of the apples dispute either immediately or within a reasonable period of time. The Australian government decided to implement the outcomes by a scientific review of the existing 2006 import risk analysis. The reasonable period of time can either be set by agreement between the parties or by an independent arbiter. The New Zealand and Australian authorities negotiated a period of eight months to complete this review, putting Australia in a position to issue import permits by 17 August 2011.

Parenthetically, Mr President, I would say that on my calculation, and I am sure you would correct me if I am wrong, that 1 February 2011 to 17 August 2011 is more like 6½ months, not eight months. Nevertheless, the government went on to say:

If it had been left to an arbiter it is likely that Australia would have been given less time to implement the findings.

What absolute nonsense we have been told in relation to this. I repeat that sentence in the minister's answer:

If it had been left to an arbiter it is likely that Australia would have been given less time to implement the findings.

That statement absolutely cannot be supported by reference to any authority of any kind.

The most closely analogous case is Japan—Measures Affecting the Importation of Apples (WT/D5245). I give that for those who want to look up that decision. The time line was as follows. Japan did not bring its measures into line with the appellate body's ruling until the second half of 2005, some 2½ years after the adoption of that ruling. Further, there is no capacity for an 'arbitrator' to determine the reasonable period of time except in the context of a request—in this case by NZ—for permission to impose sanctions. As a time line which I will outline now shows, that step in the Japan case took two years. In the Japan case the appellate body report was adopted by the DSB on 10 December 2003. In Australia it was adopted in relation to apples on 17 December 2010. The agreed date for a new risk analysis was 30 June 2004. In Australia's case it was 17 August 2011. The United States requested permission to impose sanctions on 19 July 2004. In Japan the DSB produced a report on whether the risk analysis complied with the appellate body report on 23 June 2005. A significant period of time had elapsed. But in Australia's case no subsequent step could arise because the agreed date for the risk analysis was also the date by which import permits were agreed to be issued.

In other words, we shot ourselves in the foot when we negotiated that outcome between Australia and New Zealand with the WTO. We did not negotiate. We were like that insurance company ad as we were the 'un-negotiators'. It was a miserable attempt at negotiating to ensure that Australia would be a clean, green, disease-free producer of apples and pears in this country. It was an abdication of responsibility in terms of our negotiations before the WTO with New Zealand. It was a shocking outcome.

In relation to the Australia New Zealand Closer Economic Agreement, or ANZCERTA, I asked the government whether, in fact, there cannot be sanctions against Australia because there is an obligation to maintain on New Zealand's part the duty-free flow of goods from Australia under ANZCERTA. The minister, on behalf of the Minister for Trade, basically said that the government does not really agree with the statement and there is nothing in the treaty that prevents New Zealand from imposing retaliatory tariffs consistent with New Zealand's rights under the WTO. The WTO would not consider the provisions of the treaty in determining whether New Zealand could retaliate. It would only look at the parties' rights under the WTO agreement. I dispute that most strongly. I dispute it because I think if you look at article 4 of ANZCERTA—and I do not have time to set it out now—you will see it is very clear that there is compelling case why New Zealand could not impose sanctions against us.

The consequences of this decision and the consequences of botched negotiations by the Australian government have been to put at risk our apple and pear industries in this nation. They have put at risk their disease-free status. They have put at risk future investment in the apple and pear industries. Apple and pear growers are in despair. They tell me they wonder whether it is worth getting out of bed in the morning because they have the spectre of fire blight coming into this country. When you consider that in parts of Australia fire blight can take off in something like 20 days a year, compared to two or three days a year in New Zealand, you see this is indeed a crisis. That is why the decision of the Australian government must be, as a matter of urgency, reversed by the national parliament.