The plaintiff attempted to export live koi carp from New Zealand. Koi carp damages invertebrates, the young of other fish, water conditions and aquatic vegetation, so it had been specified as a noxious fish and an unwanted organism in New Zealand. The applicant wanted to take the carp in New Zealand and then export it to Australia, stating that this would assist in the eradication of koi carp.
The applicant was of the view that the permit it had obtained under s 97 of the Fisheries Act 1996 was for its purpose the sole statutory authority required. The respondent stated that permits under the Biosecurity Act, Conservation Act and regulations were also required in addition to the s 97 permit. The applicant has been refused a permit under the Biosecurity Act.
The court had to analyze a set of statutory provisions including the Fisheries Act 1996, the Biosecurity Act 1993, the Conservation Act 1987 and the Freshwater Fisheries Regulations 1983 and answer the question as to which provisions applied to what activities.
It was of the view that the Fisheries Act and the Biosecurity Act had a different focus and therefore there were no overlapping provisions which needed to be reconciled. Thus, an applicant proposing to take and dispose of an unwanted organism may have to obtain the Fisheries Act permit and permits under the Biosecurity Act if the fish was an unwanted organism. Apart from that, the court held that consent under the Conservation Act had to be obtained from the Minister of Conservation and consent under the Freshwater Fisheries Regulations was required to possess, control and transport the koi carp, as these regulations aimed at prohibiting the possession, control or consignment of a noxious fish. The decision to decline the permit under the Biosecurity Act was confirmed.