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Judicial Review of AgResearch Decision Welcomed

Minister welcomes Judicial Review of AgResearch decision

Environment Minister Marian Hobbs has welcomed today’s decision by the High Court that her decision not to “call-in” an AgResearch application to develop transgenic cattle was not unreasonable.

The anti-GM lobby group, Mothers Against Genetic Engineering had sought a judicial review of the minister’s actions in relation to AgResearch’s application and in particular the minister’s failure to exercise her right of “call-in”. Under Section 68 of the Hazardous Substances and New Organisms (HSNO) Act 1996, the Minister for the Environment can step in and decide an application that the minister considers has significant economic, environmental, international and health effects, or significant effects in an area in which ERMA lacks sufficient knowledge or experience

In her decision, Justice Judith Potter found that section 68 is “clearly not a licence for the Minister to become involved in the nuts and bolts of applications” – that was the responsibility of the decision making body, the Environmental Risk Management Authority (ERMA). Rather, the court considered that the call-in power would be used in exceptional circumstances where on a public policy level there was a risk that the “big picture” as it affected New Zealand could be “overlooked or insufficiently taken into account in relation to a specific application”.

Justice Potter said it was clear that the Ministry for the Environment, in its role as the Minister’s adviser, did consider and assess the application, and its assessment did not raise any of the significant effects specified in section 68.

Marian Hobbs said the decision affirmed her interpretation of ministerial call-in as a decision that had to be taken at the highest level and with considerable thought and care.

“ERMA is a national expert body. As minister, I appoint members to the Authority with a balanced mix of knowledge and experience in the matters likely to come before it. The power to call in an application is not a power I am likely to exercise very often.”

The judgment noted some concerns with the Ministry for the Environment’s processes in performing its function of advising the minister, saying the informal processes adopted were less than satisfactory. It recommends a clearer protocol, with internal systems to ensure the protocol is observed and decisions recorded.

The minister says that despite this, the advice the Ministry gave was appropriate and she has directed the Ministry to formalise the protocol.

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