AUSTRALIA - MEASURES AFFECTING IMPORTATION OF SALMON
Document: REPORT OF THE PANEL
Date: 12 June 1998
Document codes: WT/DS18/R
Complainant: Canada
Respondent: Australia
Third parties: EU, India, Norway, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2, 3, 5  Sanitary and Phytosanitary Measures (SPS)Art. XI, XIII  GATT 1994

AUSTRALIA - MEASURES AFFECTING IMPORTATION OF SALMON

REPORT OF THE PANEL

The report of the Panel on - is being circulated to all
Members, pursuant to the DSU. The report is being circulated as an unrestricted document from
12 June 1998 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents
(WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only parties to the dispute
may appeal a panel report, an appeal shall be limited to issues of law covered in the panel report and legal
interpretations developed by the panel, and that there shall be no ex parte communications with the panel
or Appellate Body concerning matters under consideration by the panel or Appellate Body.

Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation
unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report i s appealed to the
Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on th e current status of the
Panel Report is available from the WTO Secretariat.

I. INTRODUCTION
1.1 On 5 October 1995, Canada requested cons ultations with Australia in accordance with
Article 4.4 of the Understanding on Rules and Pr ocedures Governing the Settlement of Disputes
("DSU"), pursuant to Article XXIII:1 of the Ge neral Agreement on Tariffs and Trade 1994 ("GATT
1994") and Article 11.1 of the Agreement on the App lication of Sanitary and Phytosanitary Measures
("SPS Agreement"), regarding the Government of Australia's prohibition on the importation of
untreated fresh, chilled or frozen salmon from Cana da under Quarantine Proclamation No. 86A, dated
19 February 1975. In the request for consultations, the Government of Canada expressed the view
that the application of the import prohibition in ques tion was inconsistent with the obligations of the
Government of Australia under GATT 1994 and th e SPS Agreement. The provisions of these
Agreements with which the import prohibition was inc onsistent included, but we re not limited to: (i)
Articles XI and XIII of GATT 1994; and (ii) Artic les 2 and 5 of the SPS Agreement. The import
prohibition nullified or impaired benefits accr uing to Canada under the Marrakesh Agreement
Establishing the World Trade Organization ("WTO Agreement").1
1.2 Australia accepted Canada's request and consultations were held on 23 and
24 November 1995, in Geneva, with a view to reach ing a satisfactory resolution of the matter. These
consultations failed to settle the dispute. Followi ng the conclusion of the "A ustralian Salmon Import
Risk Analysis", on 20 December 1996 the Government of Australia announced that it would maintain
the measure in force.2 Canada did not request further consultations.
1.3 On 7 March 1997, pursuant to Article XXIII of GATT 1994, Article 11 of the
SPS Agreement, and Articles 4 and 6 of the DSU, Ca nada requested that the Dispute Settlement Body
("DSB") establish a panel with standard terms of refe rence. Canada requested that the panel consider
and find that the Australian measure was inconsistent with (i) the SPS Agreement, and in particular
Articles 2, 3 and 5 thereof; (ii) GATT 1994, and in particular Articles XI and XIII thereof; and (iii)
that the application of the Australian measures nul lified or impaired benefi ts accruing to Canada
pursuant to the WTO Agreement.
1.4 On 10 April 1997, the DSB established a pane l pursuant to the request of Canada, in
accordance with Article 6 of the DSU. 3 The parties agreed that the panel should have standard terms
of reference:
"To examine, in the light of the relevant pr ovisions of the covered agreements cited by
Canada in document WT/DS18/2, the matter refe rred to the DSB by Canada in that document
and to make such findings as will assist the DSB in making the recommendations or in giving
the rulings provided for in those agreements."
1.5 The European Communities, India, Norway and the United States reserved their right to
participate in the Panel proceedings as third parties.
1.6 On 28 May 1997, the Panel was constituted with the following composition:
 Chairman: Mr. Michael Cartland
 Panelists: Mr. Kari Bergholm
 Ms. Claudia Orozco

1 WT/DS18/1.
2 WT/DS18/2.
3 WT/DS18/3/Rev.1.

1.7 The Panel met with the parties on 9 and 10 September 1997. It met with third parties on
10 September 1997. The Panel consulted scientific and technical experts and met with them on
4 February 1998. The Panel held a second meeting with the parties on 5-6 February 1998.
1.8 On 24 November 1997, the Chairman of the Pa nel informed the DSB that the Panel would not
be able to issue its report within six months. Th e reasons for that delay were stated in document

1.9 The Panel issued its interim report on 26 March 1998. At the request of Australia, an interim
review meeting was held on 21 April 1998. The final report was provided to the parties on
5 May 1998.
II. FACTUAL ASPECTS
 1. General
Salmon
2.1 The product subject to the dispute is fresh , chilled and frozen salmon product destined for
human consumption that has not been subject to heat treatment according to certain prescribed
durations and temperatures, prior to importation into Australia (paragraph ). Fresh, chilled and frozen
salmon comes within Codes 0302 to 0304 of the Ha rmonized System of tariff classification.
Hereafter this product is referred to as "uncooked salmon" or "fresh, chilled or frozen salmon".
4 The
family Salmonidae includes a number of species gro ups, such as salmon, trout, charr, grayling and
whitefish. Salmonidae is the scientific name and "salmonid" is a common name for this family.
2.2 In Canada, there are five sources of uncooked salmon for export 5:
(i) adult, wild, ocean-caught Pacific salmon;
(ii) adult, wild, freshwater-caught Pacific salmon;
(iii) adult, Pacific salmon cultured in seawater on the Pacific coast;
(iv) adult, Atlantic salmon cultured in seawater on the Pacific coast; and
(v) adult, Atlantic salmon cultured in seawater on the Atlantic coast.
The Canadian salmon farming industry is mainly located in the provinces of New Brunswick and
British Columbia.
2.3 Canadian exports of salmon have grown from 30,653 tons in 1969 to 66,234 tons in 1996.
The proportion of fresh and frozen salmon during this period has increased significantly: exports of
fresh and frozen salmon were 14,683 tons in 1969 ( 48 per cent of total exports) and 50,838 tons in
1996 (77 per cent).
2.4 "Canadian salmon" is all salmon landed by Canadian vessels. All such salmon is harvested in
Canadian waters as no Canadian vessels harvest sal mon on the high seas or in foreign waters. This
may include salmon that have spawned in the Unit ed States and that are intercepted by Canadian
fishermen as they pass through Canadian waters on their return migration to the United States.

4 The importation of live salmonids is not at issue.
5 Only adult salmon are harvested for export.

TABLE 1
Canadian Exports of Uncooked Salmon

Sources of uncooked salmon for export: Per cent of total exports
(Average, 1990-1997)

(i) adult, wild, ocean-caught Pacific salmon 58%

(ii) adult, wild, freshwater-caught Pacific salmon 3%

(iii) adult, Pacific salmon cultured in seawater on the Pacific coast 12%

(iv) adult, Atlantic salmon cultured in seawater on the Pacific coast

15%
(v) adult, Atlantic salmon cultured in seawater on the Atlantic coast

12%
2.5 The following are considered to be Pacific salmon species:
(i) pink salmon;
(ii) chum salmon;
(iii) coho salmon;
(iv) sockeye salmon; and
(v) chinook or king salmon.
2.6 Commercial salmon production in Australia is based on the Atlantic salmon. Atlantic salmon
was first imported to Australia in 1864 and last imported live for the establishment of domestic
populations in the early 1960s. Until the 1960s, the farming of salmonids was predominantly
conducted by government bodies for the purpose of stocking recreational fisheries.
2.7 There are five introduced salmonid species in Australia
6:
(i) rainbow trout;
(ii) chinook (quinnat) salmon;
(iii) brown trout;
(iv) Atlantic salmon; and
(v) brook trout.
In addition, native salmoniforms, or galaxids, are fo und in south eastern Australia (principally in the
States of New South Wales, Victoria and Tasmania) and the south west of the State of Western
Australia.
2.8 The first commercial production of Atlantic salmon in Australia took place in Tasmania in
1986-87. Salmonid production in Australia operates at the edge of the clim atic range for salmonid
survival, and for this reason commercial salm onid aquaculture operations in Australia are
concentrated in Tasmania and, to a lesser extent, in the alpine and sub alpine regions of north east
Victoria and south east New South Wales. Tasman ia continues to supply the bulk of Australian

6 Australian Salmon Import Risk Analysis, Final Report, December 1996, p.19.

commercial production. Sea-cage farming of Atlantic salmon and rainbow trout is a major part of the
Tasmanian aquaculture industry.7 Atlantic salmon is produced in Victoria and South Australia.8
2.9 Production grew from about 20 tons in 1986-87 to around 6,192 tons in 1994-95, with further
growth anticipated. 9 Output for 1995-96 was valued at $A 63 million. Australia exports about
40 per cent of its production volume, mainly to Japan. Of the remaining domestic market share, about
60 per cent is sold fresh and one third is smoked. Consumption of Atlantic salmon has increased
significantly in Australia during the 1990s. Aside from the salmon industry, salmonids are used in
recreational fisheries in Australia.
2.10 The major producers of farmed Atlantic salm on in the world are Norway, Chile and Scotland,
jointly accounting for 80 per cent of world supply of Atlantic salmon in the early 1990s.10
Diseases of salmon
2.11 In the dispute at issue, Australia has iden tified 24 disease agents of concern associated with
the importation of Canadian salmon. The identif ied disease agents are listed in Table 3. The
Australian Salmon Import Risk Analysis of December 1996 (hereafter "the Final Report") considered
the importation of uncooked, adult, wild, ocean-caught Pacific salmonid product from the United
States and Canada (the first category in paragra ph ). The Final Report also identifies 24 disease
agents of concern; these are iden tical to those identified in the dis pute at issue with the exception of
Kudoa thyrsites and the addition of Infectious salmon anaemia.11
2.12 According to the Office international des épizooties, a disease means the "... clinical or non-
clinical infection with one or more of the aetiological agents of the disease ...". A disease agent is "...
an organism which causes or contribut es to the development of a disease ...". 12 A disease agent may
have several strains with varying degrees of harmfulness.
2.13 The disease agents at issue in this dispute are not of concern from a human health perspective.
 2. Australia's current provisions relating to the importation of salmonid
 product
2.14 Australian Quarantine Proclamation 86A (" QP86A"), dated 19 February 1975, made under
the Quarantine Act 1908, states the following in relation to importation of dead salmon13:
"NOW THEREFORE I, Sir John Robert Kerr, the Governor-General of Australia,
acting with the advice of the Executive Council, hereby -

 (d) prohibit the importation into Australia of dead fish of the sub-order
Salmonidae, or any parts (other than semen or ova) of fish of that sub-order, in any
form unless:

7 Ibid., p.93
8 Australian Atlantic Salmon: Effects of Import Competition , p.5, Industry Commission, Research Project,
20 December 1996. See also Final Report, p.20.
9 Final Report p.93.
10 Australian Atlantic Salmon: Effects of Import Competition , p.5, Industry Commission, Research Project,
20 December 1996.
11 Final Report, p.133.
12 OIE International Aquatic Animal Health Code; OIE Code (1995), p.6.
13 Quarantine Proclamation No. 86A, Australian Government Gazette, No. S33, 21 February 1975.

(i) prior to importation into Australia th e fish or parts of fish have been
subject to such treatment as in the opinion of the Director of
Quarantine is likely to prevent the introduction of any infectious or
contagious disease, or disease or pest affecting persons, animals or
plants; and
(ii) the Director of Quarantine or a person authorized by him has, by
instrument in writing, consented to the importation and the instrument
is produced to a Collector within the meaning of the Customs Act
1901-1974 or to a quarantine officer."
Proclamation 86A delegates authority to the Direct or of Quarantine to determine the conditions of
entry in accordance with part (d) referred to above. The Director of Quarantine is the Secretary of the
Department of Primary Industries and Energy or his or her nominee.
2.15 Before the promulgation of QP86A on 30 June 1975, Australia imposed no restrictions on the
importation of products derived fro m salmonids. At the time of proclamation, QP86A primarily had
application to the protection of the animal health status of trout recreational fisheries in Australia from
disease introduction and, potentially, for the purposes of protecting the animal health status of any
future commercial salmonid industry which might be developed in Australia. Australia has noted that
the Proclamation also has application to the animal health status of native salmoniforms. Australia
has advised that the term "introduction" is applie d and interpreted in Austra lia in the same sense as
"entry, establishment or spread" referred to in the text of the SPS Agreement.
2.16 In accordance with the delegated authority, pursuant to QP86A, the Director of Quarantine
has permitted the entry of commercial imports of heat-treated salmon product for human consumption
together with non-commercial quantities of other salmon (primarily for scientific purposes) subject to
prescribed conditions. The Director of Quarantine, in accordance with the same delegated authority,
has decided that imports of uncooked salmon should be restricted. Specifically, the following
requirements have been issued in relation to salmon imports:
(i) "Guidelines for the Importation of Smoke d Salmon and Trout into Australia" (the
"1983 Guidelines"). Effective 1 September 1983, imports of salmon other than
canned salmon were only allowed subject to an assessment that the treatment under
which the salmon had been processed was suffi cient to prevent the entry of disease.
With immediate effect, "cold smoked" salm on was not allowed to be imported, unless
evidence was produced that it had been pro cessed in such a way as to inactivate the
causative organisms of diseases of salmonids.
14
(ii) "Conditions for the Importation of Sa lmonid Meat and Roe into Australia", of
December 1986. This circular required an import permit for all uncanned salmon and
trout meat and salmon roe to enter Australia. Among other requirements, it listed the
major diseases of concern and established the minimum temperature requirements for
heating.15
(iii) "Conditions for the Export of Salmonid M eat and Roe to Australia", dated May 1987.
This Circular dealt with non-commercial importation of salmonid meat and roe in
response to difficulties arising in certification requirements for individual
consignments (under 5kg. in weight) accom panied by passengers entering Australia. 16

14 Chief Quarantine Officer (Animals) Circular Memorandum 82/83, dated 25 July 1983.
15 Chief Quarantine Officer (Animals) Circular Memorandum 399/86.
16 Chief Quarantine Officer (Animals) Circular Memorandum 121/87, dated 29 May 1987.

"Revised conditions for the importation of sal monid meat and roe into Australia" were
issued in June 1987.17
(iv) "Conditions for the Importation of Salmonid Meat and Roe into Australia", issued in
June 1988. This circular modified the ove n temperatures and time relationships for
heating of salmon for importation. Under the new requirements, the minimum
processing that salmonid meat would be allowed to undergo was at a temperature of
35ÿC for a period of not less than 7 hours. This circular replaced the 1983 guidelines
and are hereafter referred to as the "1988 Conditions".
18 Since the issuance of these
1988 Conditions, there have been no new treatm ent specifications to date. The term
"uncanned heat-treated salmon" and "salm on treated with the 1988 Conditions" are
the same.
(v) "Importation of Salmonid Meat in Retortab le Pouches", dated in April 1990. This
circular announced the approval of the impor tation of salmonid meat in retortable
pouches under certain conditions.19
(vi) "Requirements for the Importation of Individual Consignments of Smoked Salmonid
Meat", dated in January 1996. This not ice by AQIS set new import requirements for
individual consignments (under 5kg. in weight). These are hereafter referred to as the
"1996 Requirements".20
2.17 On 13 December 1996, the Executive Direct or of the Australian Quarantine and Inspection
Service (AQIS) made a policy determination to maintain the existing quarantine policies for the
importation of salmon product. This determinati on was based on the Salmon Import Risk Analysis
(Final Report) and is hereafter referred to as "the December 1996 decision":
"The [Chief Veterinary Officer] recomme nds 'that the status quo for quarantine
policies for uncooked salmon products continue'
 - i.e. that the requests from Canada and US for access for uncooked, wild,
adult, ocean-caught Pacific salmonid product not be approved.

"On the basis of these considerations I have decided that, having regard to Australian
Government policy on quarantine and after taking account of Australia's international
obligations, importation of uncooked, wild, adult, ocean-caught Pacific salmonid
product from the Pacific rim of North Amer ica should not be permitted on quarantine
grounds."
21
 3. International recommendations - the OIE
2.18 The SPS Agreement makes reference, in a numb er of provisions, to the "relevant international
standards, guidelines and recommendations". Anne x A:3(b) of the SPS Agreement states that the
international standards, guidelines and recommendations relevant for animal22 health and zoonoses are
those developed under the auspices of the Office in ternational des épizooties (hereafter the "OIE").

17 Chief Quarantine Officer (Animals) Circular Memorandum 122/87.
18 Chief Quarantine Officer (Animals) Circular Memorandum 166/88, dated 9 June 1988.
19 Chief Quarantine Officer (Animals) Circular Memorandum 93/90, April 1990.
20 AQIS Quarantine Operational Notice 1996/022, 24 January 1996.
21 AQIS, File Note by Paul Hickey, Executive Director, 13 December 1996.
22 In Annex A of the SPS Agreement, a footnote on the titl e "Definitions" indicates that "[f]or the purpose of
these definitions, "animal" includes fish and wild fauna ...".

These standards, guidelines and recommendations ar e contained in OIE's "International Aquatic
Animal Health Code".
2.19 The OIE is an international inter-govern mental organization created in 1924. In
November 1997 it had 147 member countries. Its main objectives are to:
(i) inform governments of the occurrence and course of animal diseases throughout the
world and about ways to control these diseases;
(ii) coordinate, at the international level, st udies devoted to the surveillance and control
of animal diseases; and
(iii) harmonize regulations for trade in animal s and animal products among its member
countries.
2.20 The OIE operates under the authority and cont rol of its International Committee which is
made up of delegations from the member countries. The International Committee adopts resolutions
drawn from the work of subordinate commissions (the Administrative Commission, the Regional
Commissions and the Specialist Commissions). One of the specialist commissions is the OIE Fish
Diseases Commission (FDC). The FDC was establishe d in 1960. In May 1995, the FDC formally
adopted the OIE's "International Aquatic Animal He alth Code" (hereafter referred as to the "Code"),
and the "Diagnostic Manual for Aquatic Animal Diseases" (the "Manual"). The aim of the Code is to
facilitate international trade in aquatic animals a nd aquatic animal products by "providing detailed
definitions of minimum health guara ntees to be required of trading part ners in order to avoid the risk
of spreading aquatic animal diseases. These guarantees are based on inspection by Competent
Authorities23, epidemiological surveillance, and standard methods for laboratory examinations and
disease diagnosis". The Code and Manual are update d on a yearly basis at the OIE General Sessions,
in May.24 References in this report are to the Code as updated in May 1997.
2.21 The diseases in the Code are divided into Diseases Notifiable to the OIE (hereafter
"Notifiable Diseases") and Other Significant Diseases (hereafter "Other Diseases").
2.22 According to the OIE Code, Notifiable Diseases cover those diseases "that are generally
regarded as having the potential for serious damage to the national aquacultural industries, or wild
populations of fish, molluscs and crustaceans. In troduction of these diseases into countries free from
them or into countries with national control or eradication programmes could cause significant
economic loss. The Veterinary Ad ministrations or other responsible Competent Authorities of such
importing countries have an obligation to ensure th at new disease agents are not introduced through
imports, and to seek adequate protection in international health certificates".
25 Notifiable Diseases are
those "considered to be of socio-economic and/or public health importance wi thin countries and that
are significant in the international trade of aquatic animals and aquatic animal products".26 The Code
indicates that "... the list of notifiable diseases of aquatic animals includes only major diseases of
proven aetiology and limited geographical range ..." (page 109).
2.23 Other Diseases include diseases which: (i) are ser ious, but have a broad geographic
distribution; (ii) those causing significant mortality, are transmissible and are of limited geographic
range, but for which the aetiological agent has not yet been identified, or for which diagnostic tests are

23 A Competent Authority is defined in the OIE Code as "the National Veterinary Services, or other
Authority of a Member Country, having the responsibility and competence for ensuring or supervising the
implementation of the aquatic animal health measures recommended in this Code."
24 OIE Code, Foreword.
25 OIE Code, p. 63.
26 Ibid., p.7.

not yet standardized; (iii) have the potential for causing large losses, but which are too new for
geographic range to be defined or for the essential epidemiological elements to be understood.27
2.24 Among the 24 diseases listed by Australia as of concern relevant to this dispute two diseases
are included in the OIE list of Notifiable Diseases and four diseases in the list of Other Diseases
(Table 2).
2.25 Section 1.4 of the OIE Code deals with risk analysis. The introduction states that:
"The principal aim of import risk analysis is to provide importing countries with an
objective and defensible method of assessing the disease risks asso ciated with the
importation of aquatic animals. aquatic anim al products, .... The analysis should be
transparent. This is necessary so that the exporting country may be provided with
clear and documented reasons for the impos ition of import conditions or refusal to
import. Transparency is also essential because data are often uncertain and the
distinction between facts and the analyst's value judgements may blur."
28
TABLE 2
"Diseases Notifiable to the OIE" Relevant to Australia's Measure
Infectious haematopoietic necrosis (IHN)
Viral haemorrhagic septicaemia (VHS)

"Other Significant Diseases" Relevant to Australia's Measure
Bacterial kidney disease (BKD) Renibacterium salmoninarum)
Infectious pancreatic necrosis (IPN)
Infectious salmon anaemia29
Piscirickettsiosis (Piscirickettsia salmonis)
2.26 Chapter 1.4 then goes on to outline items in cluding: (i) the components of risk analysis
(hazard identification, risk assessment, risk management and risk communication) and the sequences
of the import analysis process 30; (ii) the methodology; and, (iii) documentation of the results of the
analysis. Under Article 1.4.1.3 on methodology, th e OIE Code notes that a "[r]isk analysis must be
able to deal with the complexities of real life situations and no single method is applicable in all cases.
For this reason, countries wanting to conduct im port risk analyses may find it necessary to design
their own process for carrying out the exercise."
 4. Australia's import risk analysis
2.27 Following GATT Article XXII consultations in 1994, Australia agreed to document an import
risk analysis on the quarantine issues involved w ith the importation of uncooked salmon meat from
North America. Due to the complexity of the task, by arrangement with Canada and the United

27 Ibid., p.109.
28Ibid, p. 29.
29 Disease number 24 in Table 3.
30 Ibid., Figure 1, p.28.

States, Australia restricted the analysis to the im portation of wild, ocean-caught Pacific salmon in the
first instance. The risk analysis process involved the preparation of two draft reports, issued in May
1995 and May 1996, and a Final Report of Decemb er 1996. The reports included identification of
potential disease agents, analysis of disease risks, scientific review of data for salmonid diseases,
socio-economic assessment of the potential im pact of salmonid disease introduction and
identification of options for risk reduction and risk management. The May 1996 and Final Reports
also included summaries of issues raised by domestic and international respondents as part of the risk
communication process. (See also the response to Question 1 by the experts advising the Panel for a
summary of the reports, paragraphs 6.13-6.42.)
2.28 The "May 1995 Draft Report" noted that ther e had been no evidence of the spread of diseases
via fish products for human consumption, desp ite "the wide scale movement of salmonid product
within and between continents". Furthermore, th e report listed a sequence of events of which each
event had to occur for the imported salmon products to cause an exotic disease to become established
in Australia. It was noted that although zero ri sk was not attainable, the risk of disease introduction
might be reduced to negligible values if one or mo re events in the sequence were extremely unlikely
to occur or if a number of events in the sequen ce had a relatively low probability. The May 1995
Draft Report noted that as with any other importation there was a risk of introducing exotic pathogens
via the importation of uncooked salmon product derived from wild, ocean-caught Pacific salmon from
Canada and the United States, but that this risk w as so small as to not merit continuation of the
present quarantine restrictions. The Draft Report c oncluded that: "the importation of eviscerated,
headless, wild, ocean-caught Pacific salmon from Ca nada and the USA should be permitted, under
specified conditions ...". The conditions required, inter alia , that the fish be suitable for human
consumption, certified by the appropriate au thorities as processed in Federally approved
establishments, inspected and graded, sub-adult or mature fish, etc.
31
2.29 In May 1996, AQIS published a revised draf t Salmon Import Risk Analysis, "An assessment
by the Australian Government of quarantine c ontrols on uncooked, wild, ocean-caught Pacific
salmonid product sourced from the United States of Am erica and Canada". (The product considered
was eviscerated fish.) The "Revised Draft IR A" took into account comments received by AQIS on
the May 1995 Draft Report. The Revised Draft IRA made no specific recommendation to permit or
not to permit importation but identified a number of risk management options for consideration.
2.30 In December 1996, the Department of Pr imary Industries and Energy published the final
version of the "Australian Salmon Import Risk Analys is (the "Final Report"). In its conclusions, the
Final Report noted that there was a possibility that up to 20 disease agents exotic to Australia might
be present in Pacific salmon products and although the probability of establishment would be low,
there would be major economic impacts which could seriously threaten the viability of aquacultural
operations and the recreational fishing industries, in addition to adverse environmental impacts on the
built environment of Australia. The Report cons idered that should any of the 20 diseases become
established, they would almost certainly be ineradicable. The Report went on to note:
"It is likely that scientific knowledge will rapidly advance consideration of these
issues over the next few years. Australia will review this information as it becomes
available. In particular, countries proposi ng to export fresh salmon to Australia must
provide, to the extent possible, improved epidemiological evidence to support
assertions of safety of fresh product."
On 13 December 1996, the Director of Quarantine d ecided to accept the recommendation of the Final
Report that "...given the unique circumstances, range of potential disease agents and potential

31 "Draft Import Risk Analysis - Disease risks asso ciated with the importation of uncooked, wild, ocean-
caught Pacific salmon product from the USA and Canada", Australian Quarantine and Inspection Service, May 1995,
Appendix 6, pp.273-275.

socio-economic and environmental impacts, entr y of uncooked salmonid prod ucts from Canada and
the United States not be permitted at this time" and th at other issues related to salmon, such as current
policies for importing heat-treated salmon, should be considered in the light of priorities
recommended by the National Task Force on Imported Fish and Fish Products.
III. CLAIMS OF THE PARTIES
 1. Canada's claims
3.1 Canada claimed that the Australia's measure was an illegal import prohibition under
Article XI:1 of GATT 1994, that found no justifica tion in Article XI:2 or Article XX or in GATT
1994.
3.2 Australia's measure fell with in the definition of a sanitary measure in accordance with
Article 1 of the SPS Agreement, and Annex A.1(a) ther eto. It was thus subject to that Agreement's
provisions. Canada claimed that Australia's me asure had not been developed and applied in
accordance with the SPS Agreement in that:
(i) the measure violated Article 3.1 of the SPS Agreement as it was not based on existing
international standards, guidelines or recommendations pursuant to Article 3.1 (in this
case, recommendations of the Office international des épizooties), and did not meet
the conditions of Article 3.3 of the SPS Agreement;
(ii) the measure was not based on a proper asse ssment of the risks to salmonid life or
health and accordingly failed to meet the requirements of Article 5.1;
(iii) the measure was not based on an assessment of risks that took into account available
scientific evidence contrary to Article 5.2 of the SPS Agreement;
(iv) the measure was inconsistent with Austra lia's obligation to avoid arbitrary and
unjustifiable distinctions in the levels of pr otection it considered to be appropriate in
different situations, distinctions that resulte d in a disguised restriction on trade, and
accordingly violated Article 5.5;
(v) the measure was more trade restrictive than required to achieve Australia's
appropriate level of sanitary protection and accordingly violated Article 5.6;
(vi) the measure was in conflict with Article 2.2 of the SPS Agreement because it was
maintained without sufficient scientific evidence; and
(vii) the measure arbitrarily or unjustifiably discriminated between Members where similar
conditions prevailed, specifically betw een Australia and Canada, and accordingly
violated Article 2.3.
3.3 Canada furthermore claimed that Australia's measure had nullified or impaired benefits
accruing to Canada under the WTO Agreement pursuant to Article XXIII:1(a) or (b) of GATT 1994.
 2. Australia's claims
3.4 Australia claimed that it was fo r the complaining party to present a prima facie case of
inconsistency before the Panel and that it was theref ore for Canada, in the first instance, to provide
sufficient evidence to raise a presumption that Aust ralia's measure was inconsistent with the rights

and obligations under the cited Agre ements. Australia cl aimed that Canada had not satisfied its
evidentiary and legal burden of proof in respect of the claims it had made. In so doing, Australia
claimed that evidentiary standards had not been met and that there was a need to distinguish between
facts and assertion, including in regard to the legal relevance of matters raised by Canada which, in
Australia's view represented an attempt to ascribe motive to actions.
3.5 Australia claimed that the Panel should first examine consistency with the SPS Agreement.
Australia claimed that unless Canada could successfully demonstrate that Australia's measure did not
conform to the provisions of the SPS Agreement, th e measure would be presumed to be in accordance
with the provisions of GATT 1994, as Article 2.4 of the SPS Agreement provided that if a measure
conformed with the provisions of the SPS Agreemen t the measure was presumed to be in accordance
with obligations of Members under the provisions of GATT 1994 which related to the use of sanitary
or phytosanitary measures, in particular the provi sions of Article XX(b). It would therefore be
necessary to first consider the measure against the rights and obligations established under the SPS
Agreement. Australia maintained that its measure was in conformity to its obligations under the SPS
Agreement.
3.6 Australia further claimed that the Panel's term s of reference did not extend to Canada's claims
of non-violation, nullification and impairment unde r Article XXIII:1(b) of GATT 1994, or to what
Australia considered as new claims submitted by Ca nada in the course of the panel proceedings.
Australia also claimed that Article 3 did not have application to the measure at issue. In the
alternative, Australia claimed that its measure w as not in violation of the SPS Agreement or GATT
1994 and that Canada's claim of non violation could not be sustained.
IV. ARGUMENTS OF THE PARTIES
 1. Due Process
4.1 In the course of the Panel proceedings, Australia raised concerns that it was disadvantaged
by certain procedures. Australia noted that neither the Final Report nor the December 1996 Decision
had been discussed in WTO consultations. Australia had therefore not been in the position to respond
to the substance of Canada's claims and argumen ts until receipt of Canada's First Submission on
29 July 1997. Hence, the time frame for Australia to engage in detailed preparation for the first stage
of the panel process had been limited to three week s. In contrast, Canada had the opportunity of
several months in which to prepare its claims since receipt of the Final Report in December 1996. As
Canada had not identified the specific matters at issu e, as required by Article 6.2, Australia could not
reasonably have been expected to anticipate the detail of Canada's claims. Indeed, Canada had altered
its claims about the specific measure on several occasions throughout the panel process and had added
new claims or rebased its legal claims, including in the final stages of the panel process. Australia
drew attention to the Appellate Body Report on India - Patent Protection for Pharmaceutical and
Agricultural Chemical Products:
"All parties engaged in dispute settlement ... must be fully forthcoming from the very
beginning both as to the claims involved in the dispute and as to the facts relating to
those claims. Claims must be stated clearly . Facts must be disclosed freely. This
must be so in consultations as well as in the more formal setting of panel proceedings.
In fact, the demands of due process that ar e implicit in the DSU make this especially
necessary during consultations. For the claims that are made and the facts that are
established during consultations do much to shape the substance and scope of
subsequent panel proceedings ... in the ab sence of the inclusion of a claim in the

terms of reference, a panel mu st neither be expected nor permitted to modify rules in
the DSU."32
4.2 Australia further stated that due process concerns did not involve the development of
arguments, but related to new claims, including the basis of claims, and to evidence submitted
subsequent to the date determined by the Panel in its working procedures. Australia noted that, in
accordance with DSU rules, the establishment of a panel was automatic and that effectively, the
complainant determined the terms of reference. Under these circumstances, it was imperative that due
process be observed, as confirmed above by the Appellate Body.
4.3 Australia further indicated concern in regard to some of the Panel's questions, including
Question 12 of 23 January 1998. 33 It was Australia's view that the question invited Canada to raise a
legal claim in respect of Article 5.5 which it had elected not to include in its submissions. A
respondent could not be expected to rebut a legal claim that had not been raised by the complainant.
4.4 Australia noted that documenta ry evidence needed to be provid ed at the earliest stage of a
panel process. The appropriate time would have b een the time of the lodging of Canada's first
submission, during the first substantive meeting between the parties and the Panel. In this regard, a
Secretariat paper regarding panel tim e frames had indicated that all evidence was to be submitted by
7 October 1997.
34 In light of the above, Australia request ed that the Panel exclude the "Quantitative
analysis of the risk of establishment of Aeromonas salmonicida and Renibacterium salmoniarum in
Australia as a result of importing Canadian ocean- caught salmon" by David Vose (the "Vose Report")
from its consideration of evidence submitted by Canada, together with the article attached to Canada's
Second Oral Argument of 5 February 1998. The or iginal Vose Report had been provided by Canada
at the end of December 1997. A partially ille gible copy had been received by Australia on
18 December, and a legible copy was not received in Canberra until 23 December; i.e., the beginning
of the statutory summer holiday period in Australia. No explanation had been offered by Canada why
the evidence had not been provided during the consulta tions or at the beginning of the panel process.
Without prejudice to the admissibility of the Vose Report, Australia drew attention to the fact that this
had been revised between 5 and 6 February. On 13 February, Australia ha d furnished initial written
comments on the revised report, but the admissibility of this comment had been contested by Canada.
Australia noted also that no effo rt had been made to subject this evidence from Canada to the same
legal scrutiny as the Final Report.
4.5 Canada noted that Australia had received the Vose Report on 18 December 1997. In their
view, this had given Australia ample opportunity to consider it and provide comments, which
Australia did at the Second Substantive Meeting, on 5 February 1998, and in its 13 February 1998
submission to the Panel.
4.6 In terms of the scope of the dispute, Australia acknowledged that Canada's requests for
consultation and a panel extended to fresh, chilled and frozen salmon and was not limited to Pacific
salmon. Nonetheless, Australia could not reasonably have been expected to undertake a formal risk
assessment on all uncooked salmon of Canadian origin within the time frame in which Canada sought
a panel, or for that matter, within the time frames of a panel process. The Final Report was limited to
the Pacific product by agreement with Canada, and at no stage had Canada subsequently requested
that the product coverage be extended to all Ca nadian salmon. Canada had not communicated to
Australia that it wished to reverse this arrangeme nt until the panel process was under way. Australia,
therefore, requested that the Panel limit its findings to fresh, chilled and frozen, adult, wild, ocean-
caught Pacific salmon.

32 Adopted 16 January 1998, WT/DS50/AB/R, para. 94.
33 Question 12: "Can Canada confirm that it is of the view that the contested measure 'results in ... a
disguised restriction on international trade' in the sense of Article 5.5? If so, why?"
34 The Panel's Revised Timetable, distributed to Parties on 10 September 1997.

4.7 Canada refuted this argument and noted that accord ing to Article 5.1 of the SPS Agreement,
it was for Members taking measures to base those me asures on an assessment of risk. The obligation
was not limited to those instances where another Memb er requested that a measure be based on a risk
assessment. Canada never excused Australia from its obligations under Article 5.1. Australia's
obligation under Article 5.1 was not to do a risk assessment, but to base its measure on one.
4.8 Australia contended that Canada had introduced fu ndamental changes in the nature of its
specific legal claims at the final meeting of the part ies with the Panel (5-6 February 1998). Canada's
oral statement of 5 February was a 44-page docum ent which had the character of a formal written
submission in regard to legal claims and rebased le gal claims as well as detailed content. It was not a
document that was capable of being addressed fully (in respect of legal claims, the legal basis of
claims and evidence) overnight or within the space of one week. This was a violation of due process
and had put Australia in a disadvantageous position. In this regard, Australia argued that in relation to
new or re-based claims, Canada's claim of inconsis tency with Article 5.1 had been extended, on 5
February, to include claims in respect of product coverage (heat-treated salmon and salmon other than
salmon covered by the scope of the Final Report). Au stralia argued that heat-treated product had not
been addressed in the Final Report for the very reason that Canada had not sought a risk assessment
on heat-treated product, for which it already ha d access, accounting for some $A 10 million of
Australia's import of that product. Australia had been reliant on the agreement reached with Canada
on the limited scope of the risk assessment, but because of this, currently faced a claim of
inconsistency with WTO treaty obligations, a claim which had not been advanced until 5 February.
4.9 Canada stated that Australia had been fully aware since 10 March 1997 that Canada was
claiming that Australia had violated Articles 2, 3 and 5 of the SPS Agreement and had done so by way
of QP86A and the amendments or modifications to it, which included heat treatment requirements. 35
The requirement of heat treatment and the prohi bition on salmon product that had not been heat-
treated (i.e. fresh, chilled or frozen salmon) were two sides of the same coin. There was no "new
identification of the measure". Canada further noted that the argument that Australia's measure was in
violation of Article 5.1 was in Canada's First Submission (paragraphs 165 to 181), and, as the Panel
had raised the issue of whether Australia had base d its measure, including the requirement of heat
treatment, on a risk assessment 36, Canada had a right and an obligation to address these issues in its
argument.
4.10 Australia further alleged that Canada had introdu ced a new specific claim that Australia had
violated Articles 5.1, 5.2 and 2.2 of the SPS Agreement, on the basis that there was no rational
relationship between the measure and the scientific evidence. The basis fo r this claim had been
largely heat-treated product, a claim not previously ra ised in relation to those provisions. Canada had
not clearly identified the basis for its claim in the te xt of the SPS Agreement. It appeared that Canada
was requesting the Panel to make a general judge ment whether Australia's measure was rationally
supported by the available scientific evidence to achie ve Australia's appropriate level of protection,

35 The fourth paragraph of Canada's First Submission (28 July 1997) stated that:
"The Australian measure at issue is Quarantine Proclamation 86A ("QP86A") and published requirements
pursuant to QP86A that together require salmonid product to be heat-treated for certain prescribed durations
and temperatures, prior to importation into Australia, ... The result of Australia's measure is to prohibit the
importation of salmonid products destined for human consumption that have not been subject to such heat
treatment, (hereinafter "uncooked salmon" or "fresh, chilled or frozen salmon").
36 The Panel's Additional Questions to the Parties of 8 December 1997.
 Question 11: Australia indicates that it will in the future undertake a risk assessment on "uncanned
heat-treated salmon". What requirements currently apply to imports of this product? Is there any difference between
"uncanned heat-treated salmon" and salmon treated in accordance with the 1988 Conditions? On what scientific or
other basis does Australia currently allow imports of salmon products treated in accordance with the 1988 Conditions?
 Question 13: To what extent and where precisely in its Final Report has Australia analyzed and
compared the risks related to the different sanitary options it considered? To what extent and where precisely in its
Final Report did Australia take into account the element of trade restrictiveness in such comparison?

rather than to examine Austra lia's compliance with specific SPS obligations. Such a request,
according to Australia, was in conflict with the DSU (Articles 3.2 and 19.2) in that the findings and
recommendations of a panel could not add to or dimi nish the rights and obligations provided in the
covered agreements, as confirmed in the Appellate Body Report EC - Measures Concerning Meat and
Meat Products (hereafter "EC - Hormones"):
"To adopt a standard of review not clearly rooted in the text of the SPS Agreement
itself may well amount to changing that finely drawn balance [in the Agreement] ..."
"... between the jurisdictional competences conceded by Members to the WTO and
the jurisdictional competences retained by the Members themselves ...." 37
4.11 Canada noted that it had argued throughout the pr oceedings that Australia's measure was
maintained without sufficient scien tific evidence. The "rational relationship" between a scientific
basis for a measure in Article 2.2 and the "based on" requirement in Article 5.1 reflected the approach
taken by the Appellate Body in EC - Hormones.38 Furthermore, the Panel had itself raised the issue of
scientific basis for heat treatment in the written ques tions that it had put to the Parties at the First
Substantive Meeting.39
4.12 In respect of Article 5.5, Australia claimed that Canada had not previously made a legal
claim that the measure resulted in a disguised restri ction on international trade, including as a discrete
legal obligation under Article 5.5. Hence, Canada had introduced a new claim of inconsistency in
regard to purported differences between heat-treated and other salmon. This was an entirely different
claim from allegations of differences between live an d bait fish and salmon. Canada had, in seeking
to demonstrate that the alleged arbitrary or unjustifia ble distinctions in Australia's level of protection
resulted in a disguised restriction on trade, attempte d to infer motive to Australia's decisions. There
was a fundamental difference between an attempt to demonstrate a disguised restriction on trade
through inferring motive, and presenting evidence based on an analysis of the architecture and
structure of Australia's measure which Canada had failed to do. Canada was in essence requesting the
Panel to undertake a de novo review and had ignored due defere nce and the standard of review
referred to in paragraphs 115 to 117 and 244 to 245 of the Appellate Body Report on EC - Hormones.
4.13 Canada noted that it had argued from the outset that Australia had violated Article 5.5 and
that there were three elements to a violation of Article 5.5 and that the third element "disguised
restriction on international trade" had been satisfi ed (Canada's First Submission paragraphs 182 to
216 and 197). Furthermore, Canada's argument in its Second Oral Statement reflected the approach of
the Appellate Body in EC - Hormones.
4.14 Australia further maintained that in regard to Article 3.3, Canada had not previously
requested the Panel to make a finding of violation in respect of Article 3.3. The legal claim had been
one of inconsistency with Article 3.1. Austra lia noted that it did not have benefit of WTO
consultations in which to address the specific claims of Canada in relation to the Article 3. Article 3
was not identified in Canada's request for consu ltations, but in keeping with the objective of WTO
dispute resolution, Australia agreed to discuss Canada 's claims in respect of Article 3. However, no

37 Adopted 13 February 1998, WT/DS26/AB/R and WT/DS48/AB/R, para. 115.
38 Ibid., para. 193.
39 Question 23 of 10 September 1997: The 1996 Final Report addresses the risks related to import of
uncooked wild caught adult Pacific salmon from Canada and the United States into Australia. Is there any scientific
evidence available related to the effectiveness of the tec hnique of cooking (as prescribed by the Australian measure)
as a tool to reduce risk (or on the effectiveness of any other alternative suggested in the 1996 Final Report). What is
the relationship between the risks alleged in the 1996 Final Report and cooking as a tool to reduce these risks? What
is the difference in effectiveness of cooking versus evisceration with respect to the diseases at issue?
Question 13 to the experts of 31 October 1997: With respect to the diseases at issue, what is the difference
in effectiveness, with regard to reducing the risk of di sease transmission, of evisceration as compared to heat
treatment of the product? as opposed to full cooking of the flesh of the product?

details were forthcoming at the consultations. Australia's due process concerns had been compounded
by the last- minute introduction of a new legal claim by Canada.
4.15 Canada maintained that prior to the Report of the Appellate Body in EC - Hormones , the
question of whether Article 3.3 was an exception to Ar ticle 3.1 was in issue. However, the Appellate
Body had found that Article 3.3 was an obligation in and of itself. Canada's arguments in its Second
Oral Statement reflected the Appellate Body's reasoning in EC - Hormones . In addition, Canada
argued that "does not meet the conditions of Article 3.3" and "is inconsistent with Article 3.3" was a
distinction without a meaningful difference.
4.16 In regard to Article 5.6, Australia argued that Canada had introduced a new legal claim in
respect of heat-treated product. Canada's claims that Australia's requirements on heat-treated product
were not sufficiently restrictive to achieve Austra lia's level of protection did not constitute evidence
that a significantly less trade restrictive measur e was available that would achieve Australia's
appropriate level of protection in relation to uncooked salmon. Canada's new legal claims in regard to
heat-treated product implied that consistency wi th Article 5.6 could be assured by placing a
quarantine prohibition on heat-treated product.
4.17 Canada stated that it had argued from the outset that Australia had violated Article 5.6 and
that this violation was due in part to Australia's inability to distinguish among the risks entailed by
various sanitary measure of differing trade restrictiveness (Canada's First Submission, paragraphs 224
to 227). These measures included heat treatment, th e most trade restrictive of the measures identified
in the Final Report and the one that Australia had ch osen to maintain. The Terms of Reference made
it clear that heat treatment had always been at issu e in this case. The Panel had furthermore raised the
issue of heat treatment and the other options identified in the Final Report in its Additional
Question 13 to the Parties of 8 December 1997.
40
4.18 Regarding Australia's due process claims in general, Canada conte nded that Australia had
confused the distinction, made clear by the Appellate Body, between claims and arguments.
According to the Appellate Body in EC - Regime for the Importation, Sale and Distribution of
Bananas:
"... there is a significant difference between the claims identified in the request for the
establishment of a panel, which establis h the panel's terms of reference under
Article 7 of the DSU, and the arguments supporting those claims, which are set out
and progressively clarified in the first written submissions, the rebuttal submissions
and the first and second panel meetings with the parties." 41 (emphasis in the original)
4.19 Hence, while claims had to be "specified sufficiently in the request for the establishment of a
panel in order to allow the defending party ... to know the legal basis of the complaint" 42, the
arguments in support of those claims were to be set out and refined in the course of the proceedings.
The Appellate Body had concluded:
"There is no requirement in the DSU or in GATT practice for arguments on all claims
relating to the matter referred to the DSB to be set out in a complaining party's first
written submission to the panel. It is th e panel's terms of reference, governed by
Article 7 of the DSU, which set out the claims of the complaining parties relating to
the matter referred to the DSB."
43

40 Reproduced in footnote 35.
41 WT/DS27/AB/R adopted 25 September 1997, para. 141. Canada also noted that the distinction was
reiterated in: WT/DS50/AB/R, para. 91 and WT/DS26/AB/R, and WT/DS48/AB/R para. 156.
42 WT/DS27/AB/R, para. 143.
43 Ibid., para. 145.

The question of whether Canada had made "new claims" had therefore to be assessed in the light of
Canada's Request for the Establishment of a Panel 44, which established the Panel's terms of reference.
In respect of Australia's alleged "new claims" c ited above, Canada claimed that these pertained to
claims that were set out in Canada's Request fo r the Establishment of a Panel, namely, that the
Australian measure was inconsistent with Articles 2, 3 and 5 of the SPS Agreement.
4.20 Canada argued that Australia's claims of a violation of due process were groundless because
(i) Canada had made no new claims, and (ii) the arguments that Australia characterized as "new
claims" could be found in the various submissions that Canada had made throughout the proceedings
and for which Australia had the opportunity to respond. Canada's arguments had been refined in the
light of the Appellate Body's Report on EC - Hormones. This had been precisely what had been
contemplated when the Panel had agreed to the Parties' request to delay the second substantive
meeting until after the release of the Appellate Body's Report.
 2. Relationship between GATT 1994 and the SPS Agreement
4.21 Canada argued, in the first instance, that Au stralia's measure was an illegal import
prohibition under Article XI:1 of GATT 1994. A lthough Australia's measure was a sanitary measure
which affected international trade within the mean ing of Article 1.1 of the SPS Agreement, it was not
"developed and applied according to the provisions of the Agreement" (Article 1.1) and was thus
inconsistent with the SPS Agreement. Sin ce there was no presumption that the measure was
consistent with the SPS Agreement, Article 2.4 of the SPS Agreement could not be used to justify
Australia's violation of Article XI of GATT 1994.
4.22 Australia agreed that the measure was a sanitary me asure which affected international trade
within the meaning of Article 1.1 of the SPS Agreem ent. Thus, Australia observed, the Panel would
first have to examine claims in respect of the SPS Agreement in order to avoid a situation where the
Panel first found inconsistencie s with regard to a Party's obligations under GATT 1994 and
subsequently found that party to be in full confor mity with its obligations under the SPS Agreement
and therefore, within the meaning of Article 2. 4 of the SPS Agreement, in conformity with the
relevant provisions of GATT 1994. Australia indicated that wher eas the parties were in agreement
that the measure came within the scope of the SPS Agreement, they did not agree on the identification
of the measure at issue.
 3. The SPS Agreement
 (a) Burden of proof
4.23 Canada argued that Australia's measure was inconsis tent with Articles 2, 3 and 5 of the SPS
Agreement. Canada accepted that it was requi red to present evidence sufficient to establish a
presumption of a prima facie case that Australia's m easure was inconsistent with its obligations under
the SPS Agreement. In this regard, Canada mainta ined that it had put forward evidence that provided

44 WT/DS18/2.

legal arguments showing that Australia's measure was inconsistent with the above cited provisions. 45
It was Australia's obligation, in turn, to put forw ard any alternative scientific evidence to demonstrate
the scientific basis for its measure. This Australia had failed to do.
4.24 Australia agreed that it was up to the complaining party to, in the first instance, provide
prima facie evidence to raise a presumption of inconsiste ncy with regard to Australia's measure.
However, Australia argued that Canada had not me t the evidentiary and legal burden of proof in
regard to all provisions cited by Canada. Australia noted that in regard to a prima facie case, the
Appellate Body in United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from
India, had stated:
"In addressing this issue, we find it difficult, indeed, to see how any system of
judicial settlement could work if it in corporated the proposition that the mere
assertion of a claim might amount to proof. It is, thus, hardly surprising that various
international tribunals, including the Interna tional Court of Justice, have generally
and consistently accepted and applied the rule that the party who asserts a fact,
whether the claimant or the respondent, is responsible for providing proof thereof.
Also, it is a generally-accepted canon of evid ence in civil law, common law and, in
fact, most jurisdictions, that the burden of proof rests upon the party, whether
complaining or defending, who asserts the affirmative of a particular claim or
defence. If that party adduces evidence suffi cient to raise a presumption that what is
claimed is true, the burden then shifts to the other party, who will fail unless it
adduces sufficient evidence to rebut the presumption."
46 (footnotes omitted)
Hence, Australia argued, the mere assertion of a cl aim did not amount to proof. In the above cited
case, Australia recalled that the Appellate Body had ruled that:
"Since India is the party that initiated the dispute settlement proceedings, we consider
that it is for India to put forward factual a nd legal arguments in order to establish that
the US restriction was inconsistent with Article 2 of the ATC and that the US

45 Canada noted that the issues had been exhaustively reviewed in the Appellate Body report in United States
- Measures Affecting Imports of Woven Wool Shirts and Blouses from India (adopted on 23 May 1997,
WT/DS33/AB/R). There, the Appellate Body had consider ed the issue of burden of proof under the Agreement on
Textiles and Clothing (the "ATC") respecting the issue of a complaint by India that certain restrictions imposed by the
United States did not respect the transitional safeguard provi sions of Articles 2.4 and 6 of the ATC. The Appellate
Body had stated that:
"We agree with the Panel that it was up to India to present evidence and argument sufficient to
establish a presumption that the transitional safeguard determination made by the United States was
inconsistent with its obligations under Article 6 of the ATC. With this presumption thus
established, it was then up to the United States to bring evidence and argument to rebut the
presumption." (p.13)

"[A] party claiming a violation of a provision of the WTO Agreement by another Member must
assert and prove its claim. In this case, India cl aimed a violation by the United States of Article 6
of the ATC. We agree with the Panel that it, therefore, was up to India to put forward evidence and
legal argument sufficient to demonstrate that the transitional safeguard action by the United States
was inconsistent with the obligations assumed by the United States under Articles 2 and 6 of the
ATC. India did so in this case. And, with India having done so, the onus then shifted to the United
States to bring forward evidence and argument to disprove the claim. This, the United States was
not able to do and, therefore, the Panel found that the transitional safeguard action by the United
States "violated the provisions of Articles 2 and 6 of the ATC"." (p.16)
Canada stated that the reasoning in the Appellate Body decision equally applied to the SPS Agreement.
46 Ibid., p.14.

determination for a safeguard action was inconsistent with the provisions of Article 6
of the ATC".47
4.25 In EC - Hormones, the Appellate Body had confirmed that the complainant had the burden of
establishing a prima facie case in respect of all provisions of the SPS Agreement. In its findings and
conclusions, the Appellate Body had reversed the panel's general interpretative ruling that the SPS
Agreement allocated the evidentiary burden to the Member imposing an SPS measure. The Appellate
Body had also reversed the panel's conclusion that when a measure was not based on an international
standard in accordance with Article 3.1, the burde n was on the Member to show that its SPS measure
was consistent with Article 3.3 of the SPS Agreement.48 It was clear from the Appellate Body's report
that the complainant's burden of establishing a prima facie case applied across all provision of the
SPS Agreement.49
(b) The measure at issue

Sanitary or phytosanitary measure – Any measure applied:

(a) to protect animal or plant life or health within the territory of the Member from risk s arising from the entry,
 establishment or spread of pests, diseases, diseas e-carrying organisms or disease-causing organisms;

(b) to protect human or animal life or health within the territory of the Member from risks arising from additives,
 contaminants, toxins or disease-causing orga nisms in foods, beverages or feedstuffs;

(c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals,
plants or products thereof, or from the entry, establishment or spread of pests; or

(d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.

Sanitary or phytosanitary measures include all relevant la ws, decrees, regulations, requirements and procedures including, inter alia,
end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quaranti ne
treatments including relevant requirements associated with the tran sport of animals or plants, or with the materials necessary for their
survival during transport; provisions on relevant statistical me thods, sampling procedures and methods of risk assessment; an d
packaging and labelling requirements directly related to food safety.

SPS Agreement, Annex A: Definitions
4.26 Canada stated that the measure at issue was Quarantine Proclamation 86A (hereafter
"QP86A") introduced in February 1975, and published requirements pursuant to QP86A, that together
required salmonid product to be heat treated for cert ain prescribed durations and temperatures prior to
importation into Australia. Canada listed th e 1983 Guidelines, the 1988 Conditions and the 1996
Requirements as published requirements pursuant to QP86A. 50 The result of Australia's measure,
according to Canada, was to prohibit the importa tion of salmonid products destined for human
consumption that had not been subject to such heat treatment. Canada's claim was that the prohibition
on the importation of all fresh, chilled or frozen Canadian sal mon, as a result of the Australian
measure that included QP86A and any amendments or modifications to it, violated Australia's
obligations under the SPS Agreemen t and GATT 1994. The products that were the subject of
Canada's complaint before the DSU included Tariff Items:
0302.12.00 Fresh or chilled Paci fic, Atlantic and Danube salmon
0303.10.10 Frozen Pacific salmon
0303.22.00 Frozen Atlantic and Danube salmon

47 Ibid., p.12 (the Appellate Body's confirmation of the Panel's findings).
48 Op. cit., para. 253.
49 Ibid., para. 108.
50 Paragraph 2.16.

0304.10.00 Fresh or chilled fish fillets
0304.20.00 Frozen fish fillets
0305.30.00
* Fish fillets, dried, salted or in brine, but not smoked
0305.41.00* Smoked Pacific, Atlantic and Danube salmon (incl. fillets)
0305.59.00* Dried fish, not smoked (excl. cod)
0305.69.00* Other fish salted or in brine but not dried or smoked, nes
1604.20.00* Other prepared or preserved fish, nes
Note: The products marked "*" fall outside the HS tariff classifications of fresh, chilled and frozen
salmon for human consumption.
4.27 Canada argued that Australia's measur e (QP86A of 1975 and subsequent published
requirements pursuant to QP86A 51 fell within the definition of a sanitary measure in Annex A:1,
paragraph (a), as well as within the second part of Annex A.1 ("Sanitary or phytosanitary measures
include all relevant laws, decrees, regula tions, requirements and procedures including, inter alia, end
product criteria; processes and production methods; .... ").
4.28 Australia argued that QP86A and any amendments or modifications thereto did not represent
a prohibition on imports of uncooked salmon. QP86A provided a legal basis for conditions of entry
for salmon but did not constitute a prohibition per se. It established a system of permit or consent.
There had not been any amendments or modificati ons to QP86A and substa ntial imports of product
coming within the scope of QP86A had in fact ente red Australia. QP86A did not operate as an
import prohibition, but as a system of permit and consent. The Director of Quarantine had discretion
whether to allow importation or not; the condition to be met was that "[t]he Director of Quarantine
must be satisfied that prior to importation into Australia the product has been subject to such
treatment as in the opinion of th e Director of Quarantine is likel y to prevent the introduction of any
infectious or contagious disease, or disease or pest affecting persons, animals or plants." 52 T h e
conditions to be attached for treatment did not pro scribe the entry of fresh, chilled or frozen salmon.
It was noted that experts advising the Panel did no t consider heat-treated salmon to be the same
product as fresh, chilled and frozen salmon and that heat- treated salmon w as normally traded in
eviscerated form, hence different considerations would apply. In this regard Australia noted that heat-
treated salmon had been allowed into Australia si nce the issuance of QP86A in accordance with the
exercise of the delegated authority conferred on th e Director of Quarantine by QP86A; for example,
substantial quantities of heat-treated salmon, incl uding imports from Canada valued at some $A 10
million in 1996. Fresh, chilled and frozen salmon ha d been addressed separately, following which a
decision had been taken that a permit for this produc t would not be issued at the present time. Only
minuscule, non commercial quantities of frozen un cooked salmon tissue had been imported for
scientific purposes and for taxidermy. At the curre nt time, Australia did not permit the commercial
importation of fresh, chilled or frozen salmon from any country.
4.29 In common with most other countries, Austra lia had historically not generally restricted
imports of aquatic animal produc ts for reasons of disease risks. Reasons include that by long
established practice, aquatic products were primarily sourced from the sea, fishing vessels were free
to catch product not subject to private ownership and the significance of aquatic animal disease was
not fully appreciated - no ready dis tinctions could be made between the relevant disease status of fish
caught in littoral waters or from other, more remo te stocks. The growth of aquaculture and other
developments changed this situation, including in relation to the rapid accumulation of evidence on
incidents of disease caused damage in aquaculture a nd wild stocks, in part reflecting the commercial
asset value of privately owned stocks.

51 The 1983 Guidelines, the 1988 Conditions and the 1996 Requirements, paragraph .
52 Paragraph 2.14.

4.30 Australia stated that the measure at issu e was the 13 December 1996 Decision of the Director
of Quarantine, which was that quarantine restric tions on imports into Australia of uncooked salmon
product from Canada and the United States should not be permitted entry at the present time,
following an import risk analysis. This decision derived from the exercise of authority by the Director
of Quarantine in accordance with QP86A. In essence, the December 1996 decision meant that a
permit would not be issued for importation of uncooked salmon for the purposes of free circulation
within Australia for commercial consumption. Th is measure was applied within the meaning of
paragraphs 1(a) and (b) of Annex A of the SPS Agreement as a measure a pplied for the purposes of
protection of animal life and health which affect ed international trade within the meaning of
Article 1.1 of the SPS Agreement. The protection of human life or health was not an issue in this
dispute.
4.31 Canada noted that Australia's claim that the "measure" was the December 1996 decision by
the Director of Quarantine limited the scope of th e measure to wild, ocean-caught Pacific salmonids
from Canada and the United States. However, the Terms of Reference for the current Panel extended
to all fresh, chilled and frozen salmon from Canada. 53 The Request for the Establishment of a Panel
had made it clear that Canada's claim was not li mited to wild, ocean-caught Pacific salmon. The
matter set out in the Request was "measures prohi biting the importation of fresh, chilled or frozen
salmon" through the application of QP86A and any amendments or modifications made thereto.
Thus, although the December 1996 decision fell within the Terms of Reference, it did not exhaust
them. In other words, while the 1996 Decision dea lt only with wild, ocean-caught Pacific salmonids,
the Terms of Reference covered all fresh, chilled or frozen salmon. 54 The scope of Canada's
complaint covered the following species:
 Pacific 55 Oncorhynchus gorbuscha pink salmon
 salmon Oncorhynchus keta chum salmon
 Oncorhynchus kisutch coho salmon
 Oncorhynchus nerka sockeye salmon
 Oncorhynchus tshawytscha chinook or king salmon
 Oncorhynchus mykiss steelhead/rainbow trout
 Salmo salar Atlantic salmon
In Canada, only adult salmon is harvested for export. Th e importation of live salmon was not an
issue in this case. Live salmonids and their genetic material had not been approved for importation
into Australia since the promulgation of QP86A in 1975.56
4.32 However, if the Panel were to find that the measure at issue was the 1996 Decision, Canada
argued, in the alternative, that Australia had viol ated Article XI of GATT for the reasons outlined in
paragraph 4.228.
4.33 Furthermore, Canada maintained that para graph 1(b) of Annex A was not relevant to the
measure in question. Canada noted that in the Final Report there had been no mention of assessing
risks to salmon from disease-causing organisms in food, nor could it be expected that such an
assessment be made when the product in question was intended for human consumption. The first
introductory paragraph of the Final Report stated that the main issues discussed were, inter alia, "the

53 WT/DS18/2.
54 Table 1.
55 The first five species are known collectively as "Pacific salmon". Most harvested Pacific salmon is wild,
ocean-caught. Almost all Atlantic salmon is farmed, including on the Pacific coast.
56 Final Report, p.5.

likelihood of disease entry and establishment" and "t he consequences that may arise from that disease
entry and establishment".57
 (c) The disease agents at issue
4.34 Australia stated that the number of disease agents at issue depended on the scope of the
dispute and the specific products being addressed. The initial scope of the risk assessment was
uncooked salmon from both Canada and the United St ates. The Final Report identified 24 disease
agents at issue, of which at least 20 disease agents exotic to Australia were identified as present or
potentially present in adult, wild, ocean-caught Paci fic salmon of Canadian and US origin. It was
important to put any discussion on the number of disease agents at issue into the context of the
specific product, for example whether reference was being made to Pacific, Atlantic or all products.
4.35 The risk at issue was to the health of fish, particularly salmonids and salmoniforms 58, as a
potential consequence of the entry or spread of one or more of at least 20 disease agents likely to be
present in uncooked wild, ocean-caught Pacific salm on of Canadian (and US) origin. The risk was
identified as the potential consequences of entry, estab lishment or spread of exotic diseases, including
biological and economic consequences, for the life a nd health of live fish in Australia's Territory.
This included the economic consequences of the impact of disease entry, establishment or spread in
regard to the economic asset value of salmonid aqua culture and recreational fisheries, the biological
value in regard to native salmoniforms in the bu ilt environment and extended to the quality premiums
that were commanded for Australian uncooked salmon in export markets. Australian environmental
conditions and the geographical c oncentration of commercial salmoni d aquaculture left Australia
significantly exposed to the impact of exotic di sease establishment. Salmon had been identified in
Australian scientific studies as coming within the "h igh risk" category in respect of exotic diseases.
Salmonid recreational fisheries added significant economic benefit to regions in southern Australia,
in addition to the social asset value to the popula tion. Australia confirmed that the diseases were not
of concern from a human health perspective, but that they related to the potential consequences
associated with the importation of salmon for human consumption, including the pathways by which
events might occur. As noted in the Final Report (pages 29 and 30) the product proposed for
importation was intended for human consumption. Although most was likely to be consumed by
humans the product might be used for purposes other than human consumption. The form of the
product could have an impact on its final use; ot her possible end uses included pet feed, bait and fish
feed and disposal as scrap. In this context, Australia noted that Dr. Rodgers had confirmed that
salmon were scavengers.
4.36 Australia observed that, as a general rule, salmonids (salmon and trout) would be more likely
to carry salmonid diseases than non-salmonids. Du e to the commercial importance of salmon, the
amount of science documented on salmonid disease was quite extensive when compared to other fish
species, but when compared to th e knowledge built up over centuries of terrestrial animal production
and medicine, this total amount was small and patc hy. The gaps in data were compounded by the
amount of interaction between disease agents, their ho sts and the environment. Australia noted that
there was a difference between "known to occur" and "may occur". For many diseases there was
scientific data to support the likely presence of the pathogen in salmon, though for a number of
reasons the pathogen might not yet have been isol ated from adult ocean-caught salmon. There were
difficulties associated with growing and identifying pathogens from fish in the carrier state and the
presence or absence of monitoring and survei llance programs for the disease agents. The
identification of an agent in a particular host woul d also reflect the intensity of the testing and the
sensitivity of the methodology used. When an outbreak of disease occurred, scientific resources

57 Ibid., "Purpose of Paper", p.3.
58 Salmoniforms is the common name for the Order Salmoniformes. Salmonids is the common name for the
Family Salmonidae within the Order Salmoniformes.

tended to give priority to control and eradication rather than identifying the source of the disease or
transmission possibilities.
4.37 Australia noted that, in addition to the id entification of disease agents, disease transmission
would depend on many factors, including scientific evaluation of the following:
(i) source of product;
(ii) number of different disease agents of qua rantine concern that may be found in a
species;
(iii) prevalence of the agent in source popula tion (whether naturally present, whether
infection recognised under experimental or unusual circumstances;
(iv) relationship between the agent in the host and that found in the salmon in question
(whether strains are specific to the host, th e species that the strains infect naturally,
the circumstances under which the salmonids would be affected);
(v) number of agents present and their tissue distribution;
(vi) impact of processing on viability of agent;
(vii) comparative amount that will be imported (total risk depends on volume imported);
(viii) likely patterns of use in the importing country;
(ix) likely manner of preparation and its impact in regard to the number of infectious
agents present (for example, whether more likely to be eaten raw or cooked);
(x) likely means of disposal; and
(xi) consequences that would follow from introduction of the disease.
4.38 Canada argued that Australia had not indicated what disease agents/diseases identified in the
Final Report were "addressed by" Australia's measu re. Canada supported the comment of the United
States in its "Third Party Oral Statement" that Au stralia seemed unable even to make up its mind as to
how many disease agents were of concern. Aust ralia first referred to "20 or more diseases under
consideration," (paragraph 47 of Australia's first submission), but then in the next sentence referred to
"a possibility that up to 20 disease agents exotic to Australia may be present in Pacific salmon
products". This would apparently limit the number of disease agents of concern to no more than 20.
In the next paragraph, however, Australia liste d 21 disease agents without identifying which 20 of
these were of concern (paragraph 48 of Australia's Firs t Submission). Australia next referred to "the
23 identified disease agents" that were"‘at issue" (p aragraph 110 of Australia's First Submission).
Australia never identified which 23 agents these were . Thus, even after Australia had done what it
purported to be a risk assessment, it could not or would not state which disease agents were the basis
of its measure.
4.39 Canada argued that when the Panel ask ed Australia how many and which diseases were
addressed by its measure, Australia presented a list of 24 disease agents "of concern". This list
included infectious salmon anaemia virus (ISA), wh ich was never mentioned before, but no longer
included Kudoa thyrsites, which was included in th e list of diseases set out in the Final Report.
Moreover, the list of disease agents of concern di d not specify which disease agents were actually
addressed by Australia's measure. This was due to the failing of the Final Report to assess the
likelihood that each of the diseases Australia ha d identified as being "of concern" would actually
establish in Australia as a result of the importati on of uncooked Canadian sa lmon. Thus, Australia
had begun its Final Report with the premise that 24 diseases or disease agents might pose a risk and
concluded exactly the same way. In Canada's vi ew, this was one of the reasons why the experts
advising the Panel considered the Final Report to be nothing more than a "hazard identification".
4.40 Canada maintained that not more than 19 of these disease agents of concern to Australia were
known to occur in wild or farmed salmon from Canada . Furthermore, some strains of four of these

disease agents were endemic to aquatic animals in Australia. 59 With respect to adult, wild ocean-
caught Pacific salmon, for which Australia had performed a ri sk assessment, Canada argued that only
four disease agents were known to occur in that category of salmon (Table 4).
4.41 Australia noted that the number of disease agents a nd the issue of whether they were exotic
or non-exotic to Australia needed to be put into context in regard to strains of disease agents, as
provided in the OIE Code. Furthermore, as earlier indicated, the precise number of disease agents at
issue depended on the product being discussed. In re gard to Pacific salmon, there were at least 20
disease agents of concern, but if considering all salmon, the number would be 24. The Final Report
addressed 24 disease agents, it did not claim that ther e were 24 disease agents at issue in regard to
wild ocean-caught Pacific salmon.
TABLE 3
Disease Agents of Concern to Australia

# Disease Agent

Known to occur in any of the five categories of
salmon from Canada (Note 1)
Endemic to
Australia
 Disease According to
ALA:
(Note 2)
According to
CAN:

1 Aeromonas salmonicida
(typical strain)

Aeromonas salmonicida
(atypical strain)
furunculosis

various names such as
goldfish ulcer disease

YES

YES
YES

YES

X
(some strains)
2 Edwardsiella tarda edwardsiellosis YES YES X
3 *Piscirickettsia salmonis piscirickettsiosis YES YES
4 *Renibacterium salmoninarum bacterial kidney
disease (BKD)
YES YES
5 Vibrio ordalii and V.
anguillarum
vibriosis YES YES X
V. anguillarum
(some strains)
6 Vibrio salmonicida Hitra disease or
coldwater vibriosis

YES YES
7 Yersinia ruckeri enteric redmouth
disease (ERM)

YES YES X
(some strains)
8 erythrocytic necrosis virus viral erythrocytic
necrosis (VEN)

YES YES

59 Aeromonas salmonicida (some atypical strains), Edwardisiella tarda, Yersinia ruckeri (some strains) and
Vibrio anguillarum (some strains).

TABLE 3
Disease Agents of Concern to Australia

# Disease Agent

Known to occur in any of the five categories of
salmon from Canada (Note 1)
Endemic to
Australia
 Disease According to
ALA:
(Note 2)
According to
CAN:

9 Herpesvirus salmonis type 1 -

NO NO
10 †infectious haematopoietic
necrosis virus (IHNV)
infectious
haematopoietic
necrosis (IHN)

YES YES
11 *infectious pancreatic necrosis
virus (IPNV)
infectious pancreatic
necrosis (IPN)

YES YES
12 Pacific salmon anaemia virus erythrocytic inclusion
body syndrome (EIBS)

YES NO
13 salmon leukaemia virus (SLV) plasmacytoid
leukaemia

YES YES
14 salmon pancreas disease virus pancrease disease YES YES
15 †viral haemorrhagic septicaemia
virus (VHSV)
viral haemorrhagic
septicaemia (VHS)

NO YES

16 Enterocytozoon salmonis -

YES YES
17 Loma salmonae -

YES YES
18 Ceratomyxa shasta ceratomyxosis

YES YES
19 Henneguya salminicola -

YES YES
20 Myxobolus cerebralis whirling disease

YES

NO

21 Parvicapsula sp. parvicapsula disease

YES YES

TABLE 3
Disease Agents of Concern to Australia

# Disease Agent

Known to occur in any of the five categories of
salmon from Canada (Note 1)
Endemic to
Australia
 Disease According to
ALA:
(Note 2)
According to
CAN:

22 proliferative kidney disease
agent (sometimes called PKX)
proliferative kidney
disease (PKD)

YES NO
23 rosette agent YES YES

24 *Infectious salmon anaemia
virus (Note 3)

 YES n.a.
Note 1: See the five categories in Canada's as set out in Table 1 (Canada's response to the Panel's Question 2 of
7 October 1997).
Note 2: In response to the Panel's question. "[w]hich of the identified diseases are known to occur in salmon
from Canada? ...", Australia listed those diseases "c urrently known to occur in different subsets of
Canadian salmon". Australia noted, inter alia , that the information re flected current knowledge
(Australia's 7 October 1997 answer to the Panel's Question 2).
Note 3: This disease was identified after the issuance of the Final Report. Australia indicated that this disease
was not brought to its attention until September 1997, following the presumptive diagnosis of the
disease in New Brunswick salmon, which was announ ced by Canadian authorities in late 1997. See
Australia's Rebuttal, p.31, p.33 as well as Australia's Responses to the Panel's Questions 1, 2, 11 and 25
of 7 October. It should be noted that this list of diseases does not include Kudoa thyrsites, which was
one of the 24 diseases of concern in the Final Report (p.133). Canada notes this in their Comments on
the experts' responses, of 18 December, p.10.
* OIE - Other Significant Disease (shaded)
† OIE Notifiable Disease (shaded)
n.a. Not addressed

TABLE 4
Disease Agents Known To Occur In:

 Adult , wild ocean-caught
Pacific salmon
according to Canada (4):

Wild caught Pacific salmon
according to Australia (14)

Disease agents Renibacterium
salmoninarum
Renibacterium
salmoninarum
 Infectious haematopoietic
necrosis (IHN)
Infectious haematopoietic
necrosis (IHN)
 Salmon leukaemia virus Salmon leukaemia virus
 Henneguya salminicola Henneguya salminicola
 Vibrio anguillarum and V.
ordalii
 Yersina ruckeri
 Erythrocytic necrosis virus
 Piscirickettsia salmonis (?)
 Edwardsiella tarda
 Loma salmonae
 Ceratomyxa shasta
(affected individuals die as
juveniles ?)
 Aeromonas salmonicida
(typical and atypical strain)
 Parvicapsula spp.
 Proliferative kidney disease
agent (PKX)
Note 1: In Canada, only adult salmon are harvested for export.
Note 2: Australia claimed that the fact that a disease agent pres ent in juvenile fish had not been identified in adult fish did not rule
out the presence of that agent in adult fish.
Note 3: While Australia did not explicitly contest Canada's cla im that only four diseases (shaded in the table above) are known to
occur in adult, wild, ocean-caught Pacific salmon, Australia argued that there was a difference between "known to occur"
and "may occur". As Australia had been obliged to make a judgement about risk in a highl y uncertain field in the Final
Report, it was misleading to imply that only those diseases known to occur were relevant.
Source: Parties' response to the Panel's Questi on 2 of 7 October 1997 (see Note 2 in Table 3).
4.42 Australia indicated that the Final Report (Sec tion 3) included a stochastic assessment of the
economic impact in relation to two diseases (Furunculosis and IHN), including the economic and
technical feasibility of prevention and control. This demonstrated that Furunculosis (Aeromonas
salmonicida) and Infectious haematopoetic necrosis virus (IHN) were diseases where the potential
impact to Australian waters would be particular ly high given that the entire salmon industry would
probably cease operation in the event of disease outbreak. In addition, the introduction of Whirling

disease into Australia would substantially raise the costs of production of salmon in Australia and
increase mortality. 60 Australia noted that Infectious salmon anaemia (ISA), a disease exotic to
Australia, had recently been presumptively diag nosed in Canada (New Brunswick salmon).
According to Australia, this disease had previously been thought to occur on ly in Norway. If the
presumptive diagnosis were confirmed in Canada, it would demonstrate that the disease was capable
of spreading despite strict controls imposed by importing countries. Australia further noted that
Canada had not disagreed that there was a ri sk of disease spread through product for human
consumption.
4.43 Australia stated that the Final Report had b een obliged to make a judgment about risk in the
face of considerable uncertainties resulting from ex tensive data gaps. Australia had sought from
Canada, but not received directly relevant scientif ic information on endemic disease agents present in
a major resource, pertaining to:
- prevalence of infection in adult, wild, ocean-caught Pacific salmon;
- impact of processing and handling on the infection;
- effectiveness of inspection at detecting infections;
- infectious dose; and
- route of infection.
In view of this dearth of information, the Canadi an presentation of those diseases that might be found
in adult, wild, ocean-caught Pacific salmon from Canada was a simplification of a very complex
issue. Australia contended that, given the disease data gaps together with limitations in surveillance
programs and testing protocols, it was misleading to concentrate only on those diseases that were
known to occur. Accordingly, Australia pointed out that there was a difference between "known to
occur" and "may occur". For example, the fact th at a disease agent present in juvenile fish had not
been identified in adult fish did not rule out the presence of that agent in adult fish. Equally, Australia
contended that the fact that an agent had only been recorded from fresh water did not mean that the
agent would not be carried in the same host species under marine conditions.
4.44 Of the total of 24 diseases of concern listed in the Final Report, Australia claimed that 14 of
these disease agents might occur in wild caught Pacific salmon from Canada. The remainder had
been included in the list as they were either found in US stocks; had been recorded to date only from
the Atlantic coast of Canada; or had only been isolated from farmed salmon. For example, while
Australia recognized that Myxobolus cerebralis (whirling disease) was not present in Canadian
salmon, Australia argued that the disease was present in US stocks and could therefore be present in
exports from Canada. As such Myxobolus cerebralis was considered in the risk assessment on adult,
wild, ocean-caught Pacific salmon. Australia noted that Dr. Wooldridge supported the inclusion of
any disease in a risk assessment for which there was reason to suspect that it was in the product.
61 In
addition to the uncertainty presented by the above, the complexity of the issue had been further
heightened by many product-related factors such as the spoilage of flesh, as seen with Henneguya
salminicola. This spoilage had the potential for increased wastage of uncooked flesh and consequent
increase in the likelihood of such infected product en tering the water where susceptible species occur.
Australia emphasised that in the context of quaran tine, the concern was the dose needed to establish
carrier status, which might be considerably lowe r than that required for actual clinical disease.
Australia also noted that Canada had not contested the scientific evidence of the Final Report that all
of the agents at issue, other than pancreas disease virus and Vibrio salmonicida, had been found in at
least one age group of salmonids in the Pacific region.
4.45 Australia argued that although there was no definitive proof of the spread of fish diseases via
fish products for human consumption, the potential for introduction of exotic pathogens in this

60 Final Report, p.48 and pp.251-255.
61 Wooldridge, Transcript, para. 107.

manner could not be discounted. Australia maintained that this lack of evid ence must be viewed in
the context of the factors that would minimize th e likelihood of detecting the spread of a pathogen,
should it occur. These factors included the prev ailing situation where most salmon product was
traded between countries where salmon diseases were already present. Delay between any incident
introducing the agent and the recognition of the presence of the agent would further minimize the
chance of relating disease introduction to product movement. The thoroughness and timeliness of
disease surveillance and reporting as a factor contributin g to the lack of evid ence for pathogen spread
through fish product for human consumption was also highlighted by Australia.
4.46 To support its argument for transfer of disease agents through product for human
consumption, Australia cited examples of other pr oducts for human consumption, such as avian and
mammalian tissues, known to have spread animal di seases. These included the numerous recordings
of international transmission of animal disease th rough products for human consumption such as foot
and mouth disease, African swine fever, classical sw ine fever (hog cholera), swine vesicular disease
and Newcastle disease. Australia noted that the OIE International Animal Health Code included
restrictions in respect of these di seases for the same reason. In a ddition, Australia contended that
given both the difficulty of proving the spread of aquatic animal diseases through product and the
very short history of aquatic animal medicine in comparison to its terrestrial animal counterpart, it
would be prudent to consider that rather than being unlikely, it was probably only a matter of time and
attention until there was definitive proof of the spread of aquatic animal disease via product for
human consumption. Australia further supported th is argument with evidence on previously exotic
prawn viruses, responsible for the diseases Taura syndrome, whitespot and yellowhead, that had
recently been found in the United States. Though th e route of entry of these pathogens was unknown,
the importation of farmed prawns for human cons umption from South America and Asia where these
diseases were endemic had been proposed as the source of the infection
4.47 With respect to Australia's concerns regarding disease surveillance and reporting, Canada
recalled Dr. Rodgers' comments that:
"One other aspect to consider [i.e. in assessing the degree of confidence of disease detection]
is that regularly tested stocks are normally c onsidered as a lesser risk than occasionally, or
untested stocks, or products, since regular m onitoring will provide a background database of
information over time.

"Unfortunately, this is rarely the case for wild populations of fish because regular monitoring
programmes do not normally exist, unless diagnosis is related to the occurrence of large,
noticeable mortalities. However, sampling returning anadromous salmonids in their
freshwater phase is occasionally the exception."
62
Canada indicated, however, that over the past 20 years it had developed an extensive programme of
disease monitoring of its wild population of Pacific salmon, particularly adults returning to fresh
water to spawn. These data had been provided to Australia and were included in Australia's Final
Report. For example, between 1972 and 1993, Canada sampled:
- 21,495 returning anadromous salmonids for Aeromonas Salmonicida (atypical and
typical);
- 21,999 returning anadromous salmonids for Renibacterium salmoninarum;
- 21,495 returning anadromous salmonids for Yersinia ruckeri;
- 21,495 returning anadromous salmonids for Vibrio anguillarum and Vibrio ordalii;
- 14,595 returning anadromous salmonids for infectious haematopoietic necrosis;

62 Paragraph 6.91.

- 14,595 returning anadromous salmonids fo r infectious pancreatic necrosis; and
- 14,595 returning anadromous salmonids for viral haemorrhagic septicaemia.63
4.48 Canada further noted that ISA had been a dded to the list of diseases of concern to Australia
during the Panel process, without a risk assessment . Furthermore, Australia had acknowledged that
the disease had only been identified in adult Atlantic salmon farmed in New Brunswick.
4.49 In regard to the New Brunswick salmon, Australia noted that Canada's comments were valid
only insofar as the product at issue in the dispute were limited to the Pacific product addressed in the
Final Report. However, Canada claimed that the dispute extended to New Brunswick salmon.
 (d) Article 1.1

This Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade. Such
measures shall be developed and applied in accordance with the provisions of this Agreement.

SPS Agreement, Article 1.1
4.50 Canada observed that Australia's measure directly or indirectly affected international trade
within the meaning of Article 1.1 of the SPS Ag reement, however, Canada maintained that the
measure was not "developed and applied" in accordance with the SPS Agreement and that it was
therefore in violation thereof.
4.51 Australia agreed that the measure taken, as identif ied by Australia, was a sanitary measure
for the protection of animal life and health within Australia's Territory an d within the meaning of
Article 1.1 of the SPS Agreement, but did not agree that the measure at issue was as described by
Canada. Australia claimed that the Panel was not required to examine whether there had been a
violation of Article 1 of the SPS Agreement, as Canada had not claimed a violation of this provision.
As stated above, the measure was applied for the purposes of protection of animal life and health and
affected international trade within the meaning of Article 1.1 of the SPS Agreement.
 (e) Article 2.2
Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, anima l or
plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for
in paragraph 7 of Article 5.
SPS Agreement, Article 2.2
4.52 Canada claimed that Australia was required to ensure that its ban on the importation of
uncooked salmon was sustained by sufficient, rele vant, scientific evidence, reflecting the risks
Australia claimed would arise from the entry of salmonid diseases through the importation of
uncooked salmon. There was a substantial body of re levant scientific evidence which made it clear
that Australia had failed to ensure that its measur e was "not maintained w ithout sufficient scientific
evidence". Therefore, Canada contended, Australia had failed to meet the fundamental obligations on
the application of SPS measures, as set out in Article 2.2.
4.53 Canada recalled that the Appellate Body in EC - Hormones had considered that Article 2.2
and Article 5.1 of the SPS Agreemen t had constantly to be read t ogether and that elements which

63 Final Report pp. 137, 157, 175, 165, 191, 197, and May 1995 Draft Report, p.196.

defined Article 2.2 imparted meaning to 5.1. 64 The Appellate Body had c oncluded that the result of a
risk assessment had to sufficiently warrant or reas onably support the sanitary measure at issue. There
had to be a rational relationship between the scientific evidence disclosed in a risk assessment and the
sanitary measure.65 Canada argued that the foundation of any sanitary measure must be science, not
protectionism or politics. Article 5.1 of the SPS Agreement required that a sanitary measure must be
based on a risk assessment. Article 5.2 provided that Members must take into account available
scientific evidence in assessing this risk. Thus, the heat treatment conditions set out in Australia's
measure and the consequent ban on the importa tion of uncooked salmon had to be rationally
supported by the available scientific evidence to achie ve Australia's appropriate level of protection.
Canada stated that there was no sound scientific r eason for Australia to continue to maintain a
heat-treatment policy that had the effect of banning the importation of uncooked Canadian salmonid
products into Australia. In Canada's view, Australia's measure violated Articles 2.2, 5.1 and 5.2 of the
SPS Agreement.
4.54 Australia argued that Article 2 of the SPS Agreem ent accorded basic rights and obligations
to Members in respect of the application of sanita ry measures referred to under Article 1 of the SPS
Agreement. Article 2.1 enabled Australia to take sanitary measures which might be necessary for the
protection of animal life and health, provided that the measures were not inconsistent with the
provisions of the SPS Agreement. 66 Article 2 conferred a basic right , and Canada had therefore a
higher burden of proof to establish a prima facie case that the conditions attached to Article 2.1 had
not been met. Nevertheless, without prejudice to the question of burden of proof, Australia's
contended that the measure was necessary and was not inconsistent with the SPS Agreement.
4.55 Australia noted that Canada's claims of viol ation of Article 2.2 were limited to the measure
not being based on sufficient evidence. In the context of Article 2.2, Canada had not claimed that the
measure was being applied beyond what was necessary to protect animal life. As had been noted by
the Appellate Body in EC - Hormones, Articles 2.2 and 5.1 had constantly to be read together. 67 The
Appellate Body had also noted:
"... a panel charged with determining, for inst ance, whether "sufficien t scientific evidence"
exists to warrant the maintenance by a Member of a particular SPS measure may, of course,
and should, bear in mind that responsible , representative governments commonly act from
perspectives of prudence and precaution where risks are irreversible ...."
68
Australia maintained that there was sufficient scientific evidence to maintain the measure, which
reflected Australia's appropriate level of protecti on. Canada's evidence related to opinions expressed
about the absence of conclusive sci entific evidence; this did not contradict the evidence on which
Australia had based its measure.
Sufficient scientific evidence
4.56 Canada noted that in addition to Australia's alle ged import risk analysis (paragraphs 2.27-
2.30 refer), various studies and reports have considered issues relevant to the matter in dispute. In
December 1992 the Working Group on Aquacultu re, a Commonwealth/State/Territory Group
commissioned background documents for discussion by the Australian and New Zealand Fisheries
and Aquaculture Council. Technical Paper No.2 , "Relationship Between Wild Fisheries and
Aquaculture", studied the major positive and nega tive interactions between wild-fisheries and

64 Op. cit, para. 180.
65 Ibid., para. 193.
66 Article 2.1 of the SPS Agreement: "Members have th e right to take sanitary and phytosantiary measures
necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent
with the provisions of this Agreement."
67 Op. cit., para. 180.
68 Ibid., para. 124.

aquaculture. Possible objectives and recommendations were made, including in the areas of
marketing, co-operation, education, environmen t, government and management. Technical Paper
No.3, "Quarantine, Health and Movement", examined inter alia , the importation of fish and fish
products (including salmonid produc ts), interstate movement and disease control. The Paper set up a
list of priorities which included the principles for the development of appropriate protocols for the
importation of fish and fish products from overs eas. The technical papers were prepared by
consultants as background papers for the Draft National Strategy on Aquaculture.
4.57 In September 1994, the New Zealand Ministry of Agriculture and Fisheries Regulatory
Authority published a report on "The Risk of In troducing Exotic Diseases of Fish into New Zealand
through the Importation of Ocean-caught Pacific Salmon from Canada". The "1994 New Zealand
Risk Assessment" on imports of wild, ocean-caught Pacific salmon from Canada concluded that "the
overall risk of introducing diseases of salmon thr ough the vehicle of headle ss, eviscerated, wild,
ocean-caught Pacific salmon, appropriately certified by the Canadian Government authorities as to
origin and grade, is negligible and poses no threat to either New Zealand's wild and farmed salmonid
stocks or to non-salmonid fish stocks".
4.58 The Australian Quarantine and Inspection Se rvice (AQIS) in 1992 commissioned a review of
Australia's aquatic animal quarantine policies as a basis for a review by AQIS of its quarantine
policies and procedures. The review was conducted by a scientific working party led by M.J. Nunn of
the Bureau of Resource Sciences. Its report, "Aqua tic Animal Quarantine in Australia - Report of the
Scientific Working Party on Aquatic Animal Quaran tine" (the "BRS Report") was released in 1995.
This report concluded, inter alia, that the present restrictions on the importation of salmonid flesh for
human consumption could not be ju stified and should be revised. Th e report also made a number of
recommendations for AQIS to consider, including that: salmonid fish should be individually
inspected for evidence of muscle, skin, visceral lesions or abnormaliti es, and should be certified as
free of such by a competent govern ment authority; unless other safeguards are taken to minimize
possible risks, salmonid fish should be imported as eviscerated, filleted flesh to minimise possible
contamination by exotic pathogens; databases on several aspects of aquatic animal health and disease
should be developed; and that research was needed , for example, in regard to the inactivation of
pathogens (by heat).
4.59 In order to facilitate th e above-mentioned BRS Report, a c onsultant was commissioned to
produce a detailed independent review of the scien tific literature and Australian quarantine policies
and practices for aquatic animals and their products . "Australian Quarantine Policies and Practices
for Aquatic Animals and their Products: a review for the Scientific Working Party on Aquatic Animal
Quarantine", by J.D. Humphrey, Bureau of Resource Sciences, was distributed in 1995 (the "1995
Humphrey Report"). This report concluded that there was little evidence to support a case that the
importation of products derived from aquatic animals destined fo r human consumption presented a
risk of establishment of exotic pathogens in th e aquatic environment. It concluded that an
inconsistency currently existed whereby fresh or frozen products derived from finfish other than
salmonids might be imported without specific quara ntine restrictions, wher eas salmonid flesh was
prohibited unless treated in a manner to inactivate potential pathogens. It also concluded that the
current process of heating salmonid fish to inac tivate potential exotic pa thogens did not have a
rational basis in view of the thermal stability of a number of pathogens of high quarantine importance,
especially at the lower temperature ranges.
4.60 In response to requests for market access for salmon from Australia and the United States,
New Zealand undertook an analysis of disease risk s from wild and aquacultured salmonid products
from a wide range of countries, issued in Septem ber 1997. The "1997 New Zealand Risk Analysis"
considered in particular headed, gilled and evi scerated salmon, and included both a qualitative and a
quantitative assessment. One conclusion of the quantitative assessment was that the upper 95 per cent
confidence limits for the probability of Aeromonas salmonicida introduction per tonne of head-off,
eviscerated, commercially-harvested, wild Pacific salmon from North America was 2.27 x 10
-9 and for

farmed Atlantic salmon from Norway is. 5.48 x 10 -8. New Zealand concluded "[c]onsidering that the
probability of an aquatic animal disease being in troduced into New Zealand through imports of the
commodity is likely to be negligible for most diseases and very low for others, continuing a
prohibition on imports is inappropriate."69 (emphasis in the original)
4.61 Australia observed that the studies referred to by Canada did not reflect official government
policy. In December 1988, Australian governme nt policy objectives on quarantine were set out in
"Australian Quarantine - Looking to the Future: a Government policy statement", known as the "Cook
Statement". This statement sets out Australia's long-term quarantine policy fundamentals and
organization.
4.62 In October 1996, a report on "Australian Qu arantine - A shared responsibility" was published
by the Department of Primary Industries and Energy . This document (the "Nairn Report") set out a
series of recommendations to the Australian G overnment. Following these recommendations, a
program of aquatic quarantine reviews was established. A National Task Force on Imported Fish and
Fish Products was commissioned by the Australian G overnment to prepare a paper that would enable
a coordinated response to several current aquatic animal health issues. The "Task Force" had
representatives from the Federal and State levels of the Government, industry, recreational fisheries,
conservation groups and the scientific community. "A Report into the implications arising from
aquatic animal imports", also called the "Repor t of the National Task Force", was published in
December 1996. In August 1997, the Government's response to the Nairn Report and the Report of
the National Task Force was published as "Austra lian Quarantine: A Shared Responsibility - The
Government Response". This document set out current Australian quarantine policy.
4.63 Australia also contended that the economic study by the Industry Commission on "Australian
Atlantic Salmon - Effects of Import Competition", dated 20 December 1996, was highly pertinent.
4.64 More importantly, Australia indicated that it was the practice of the Australian government to
commission studies by consultants at the policy formulation stage. It was also the practice of the
Australian government, at the policy development stage, to commission draft reports containing
recommendations designed to stimulate public res ponse. These reports often made proposals for
change, which resulted in public responses by all stak eholders. However, official decision makers
often rejected the draft recommendations or accepted them only partially or in modified form. The
various studies and reports cited by Canada, and the recommendations th ey contained, had to be seen
in this light. Furthermore, Canada had selectivel y quoted from these reports, giving an inaccurate
rendition of factual and scientific circumstances. Nor had these reports been subject to the same
scientific scrutiny as the Final Report.
4.65 Canada argued that the Humphrey Report, the BRS Report, and Technical Paper No. 3, all
commissioned by Australia, represented thorough sci entific analysis and opinion that together
constituted significant evidentiary material before th e Panel. These reports concluded that there were
no confirmed examples of diseases that had been established in aquatic animal populations as the
result of the introduction of fresh or frozen product from aquatic animals including salmonids; that
there was little scientific evidence to support a case that the importation of products derived from
aquatic animals including salmonids destined for human consumption presented a risk of
establishment of exotic pathogens in the aquatic environment; that evisceration of fish was a reliable
means of preventing the spread of aquatic animal pa thogens through the international trade in aquatic
animals; and that a continued ban on the importation of uncooked salmonid products was
scientifically difficult to justify. The reports show ed that Australia's measure was without scientific
foundation. Australia had not questioned the credib ility of the scientific an alysis and conclusions
contained in the reports. Nor had Australia pr esented any alternative scientific evidence that

69 M. Stone, S. MacDiarmid, and H. Pharo, "Import Health Risk Analysis: Salmonids for Human
Consumption", New Zealand Ministry of Agriculture Regulatory Authority, 1997, p. 6.

contradicted the conclusions contained in the repo rts. Rather, Australia discredited these reports only
because they did not represent official government policy.
4.66 Australia argued that Technical Paper No. 3 was commissioned as a discussion paper for the
purpose of assisting an Australian aquaculture workin g group to identify potential issues and options
for developing policies and measures to address poten tial concerns in relation to aquaculture in
general. It did not have the purpose of a compre hensive examination of salmonid issues and did not
include comprehensive detail on salmonid health. Au stralia noted that the purpose of the BRS Report
was to identify issues and possible options as part of a review of Australia's aquatic quarantine
policies. Again, the authors did not have the manda te to undertake a risk assessment, nor to limit the
scope of the study to salmon. The Humphrey Report was commissioned to assist the authors
preparing the BRS Report, hence it formed part of the BRS Report. To the extent that these papers
and reports contained relevant , valid and uncontradicted scientif ic data, it was drawn upon in the
salmon risk assessment process.
4.67 Canada observed further that Australia had acknow ledged in the Final Report that there was
no evidence to link trade in salmon products for human consumption to spread of diseases.
70 Hence,
Canada argued there was substantial epidemiological ev idence in respect of the lack of spread of the
diseases through international trade in uncooked salmon.71 The Final Report had asserted that:
"The potential for pathogenic exotic organisms to enter Australia via imports of salmon from
Canada and the United States is a risk and for some of the disease agents under consideration
it is probable that if commercial quantiti es of product were imported some of the exotic
agents would be introduced with the produc t. This must be considered against the
background that there is no epidemiological evidence recorded in the literature of disease
having been spread via trade in salmon products for human consumption although it must be
acknowledged that in practice the occurrence of such events would be difficult to determine."

"Although there is no scientific evidence for th e spread of the disease agents under
consideration via product for human consumption, it is possible that such events, if they have
occurred, would be relatively uncommon and extremely difficult to recognise."
72
4.68 Canada noted that the Final Report acknow ledged that, since the May 1995 Draft Report,
despite further inquiries, no reports had been found in the scientific literature of transmission of
disease via salmon product for human consumption 73 and that the scientific evidence did not sustain
the conclusion that disease agents were sp read through trade in eviscerated fish. 74 On the contrary,
there was ample scientific evidence, consistent with a substantial body of epidemiological data, to
show that Australia had not ensured that its ban on the importation of uncooked salmon was
maintained on the basis of sufficient scientific evidence.
4.69 Canada stated that in both the Final Report and the May 1995 Draft Report, the importance of
the sequence of events that had to be met for an exotic disease to become established in Australia had

70 Final Report, p.364. ("There is no evidence to link trade ...").
71 Canada cited a number of reports, including: the 1994 New Zealand Risk Assessment, pp.5-6; May 1995
Report, p.i, p.iii, p.218; Humphrey Report, pp. 89, 117; Nunn Report, p.34; P. de Kinkelin and R.P. Hedrick,
"Dilemmas of Disease Control Policies" (1991), 11, Bulletin of the European Association of Fish Pathologists 3;
Technical Paper No.3.
72 Final Report, p.66 and p. 67.
73 Ibid., p.67, 37, p.349 "Despite further inquiries no reports ...".
74 Ibid., p. 47 for Ceratomyxa shasta and Henneguya salminicola; p.44 for IHNV. See also New Zealand
Import Risk Assessment, p. 20 for IHNV.

been noted. 75 For the first step in the sequence of events, "the source fish must contain exotic
pathogens", Australia had acknowledged in the Final Report that there was no evidence that several of
the pathogens at issue had ever been found in w ild, ocean-caught Pacific salmon (Table 5). In its
response to the Panel's additional questions (Question 3) 76, Australia had also acknowledged that "the
'known' presence of an agent with a particular hos t by itself is not an accurate indicator of the
likelihood of disease introduction, establishment or spread".
4.70 Canada argued that in examining the likeli hood that every step in the sequence of events
would occur, in light of the scientific evidence on th e health status of North American salmonids, the
May 1995 Draft Report had concluded that importa tion under specified conditions of wild, ocean-
caught Pacific salmon from Canada and the United States for human consumption did not present a
significant risk of the introduction and establishment of an exotic disease or strain of a disease to
Australia.77 This conclusion was consistent w ith the 1994 New Zealand Risk Assessment 78 and had
been supported by comments from peer reviewers. 79 Canada noted, furthermore, that both
Drs. Wooldridge and Rodgers had stated that the May 1995 Draft Report was a qualitative risk
analysis. Australia had acknowledged this, st ating that the 1995 Draft Report fulfilled the
requirements under Article 5. Yet the Final Re port had rejected these two conclusions, reached
independently of each other. Moreover, the Final Report did not show that the scientific evidence in
the May 1995 Draft Report was incorrect or not appr opriate. Neither did the additional scientific
references included in the Final Report provide ev idence that importations of uncooked salmon would
result in the introduction of each or any one of the pathogens of concern. Further aggravating the
situation, Australia had left out data in the Final Report which was present in the May 1995 Draft
Report; a fact that both Drs. Wooldridge and Rodge rs noted in their submissions to the Panel.
Nonetheless Australia's Final Report had come to exactly the opposite conc lusion of the May 1995
Draft Report in prohibiting the importation of un cooked salmon under any condition. In Canada's
view the only conclusion that could be drawn was that extraneous factors, other than scientific
evidence, were at the root of Australia's measure.
4.71 Canada refuted Australia's demand that Ca nada provide scientific proof that disease would
not be transmitted through eviscerated product. Canada countered that it would never be able to meet
the scientific burden Australia was imposing; as Dr . Burmaster had noted, "one can never prove the
negative in science".80

75 Ibid., p.51; May 1995 Draft Report, p.215.
76 The Panel's Additional Questions to the Parties of 8 December 1997.
Question 3: Which aquatic animals other than salmonids, that are known to be carriers of any,
several or all of the 24 diseases of concern to Au stralia, does Australia import? For such imports,
please indicate (i) the purpose(s) and subsequent us e thereof (e.g. for human consumption, bait), (ii)
the approximate volume currently imported and that imported over the last 20 years (iii) the form of
the product allowed for importation (i.e. eviscerated, frozen) and (iv) the specific sanitary measures
applied to these non-salmonids, other than those identified in your response to Question 4 (c) and (d)
of 7 October (under what specific conditions can, for example, Pacific herring be imported as bait
fish).
77 May 1995 Draft Report, p.223 (Conclusions), see also paragraph 4.172.
78 1994 New Zealand Risk Assessment, p.2.
79 Tore Håstein (July 1995) and A.H. Mc.Vicar (August 1995).
80 Burmaster, Transcript, para. 250.

TABLE 5
Occurrence Of Diseases In Wild, Ocean-Caught Pacific Salmon
(Excerpts from the Final Report)
Disease Agent Final Report
Aeromonas salmonicida (typical strain)
Aeromonas salmonicida (atypical strain)
p.38 . "Its presence has not been reported in wild, adult, marine Pacific salmon in
North America, nor elsewhere in the North Pacific Ocean."
Yersinia ruckeri p.42. "Disease due to Y. ruckeri infection has not been reported in adult, wild,
marine Pacific salmon ... "
Piscirickettsia salmonis p.40. "P. salmonis has not been observed in adult, wild, marine Pacific salmon,
but it has been seen in captive Pacific salmon stock held in sea water in the
region."
Salmon pancreas disease virus p.45. "Although pancreas di sease has not been reported in wild, adult, marine
Pacific salmon, as the causal agent has only recently been identified as a virus
the likelihood that Pacific salmon could be infected cannot be predicted with any
certainty."
Viral haemorrhagic septicaemia virus (VHSV) p.45. "The virus has not been identified in adult, wild, marine Pacific salmon,
but has been identified in spawning salmon, perhaps as a result of contact with
cod and/or herring in marine waters."
Enterocytozoon salmonis p.46. "Of the species currently under consideration, natural infection has only
been identified in chinook salmon and has not been reported in adult, wild
marine Pacific salmon."
Loma salmonae p.46. "Infection may occur at sea, but has not been reported in adult, wild,
marine Pacific salmon."

Herpesvirus salmonis type 1 p.43. "Infection has not been de tected in the Pacific salmon species under
consideration, nor has it been detected in salmon in British Columbia or Alaska."
Infectious haematopoietic necrosis virus (IHNV) p.43. "IHNV ha s been recovered on one occasion from a group of fish returning
to spawn, and this was regarded as an unusual event ... All other attempts to
isolate the virus in adult, wild, marine Pacific salmon have been unsuccessful."
Infectious pancreatic necrosis virus (IPNV) p.44. "Extensive sampling of wild a dult Pacific salmon in British Columbia and
Alaska failed to detect the presence of IPNV."
Pacific salmon anaemia virus p.44. "Infection with PSAV has not been reported in adult, wild, marine Pacific
salmon."
Myxobolus cerebralis p.48. "Infection has not been reported in Canada or Alaska. ... Very few if any
adult marine salmonids in the Pacific rim of North America would be expected
to be infected with M. cerebralis."
Rosette agent p.49. "It has been recognised in farmed salmonids, but not, to date, in adult,
wild, marine Pacific salmon."
Source: First submission of Canada, pp.96-97; Final Report, pp.38-49.

4.72 In order to determine what conclusions Au stralia might have reached had it used the data
available to it, Canada had commissioned David Vo se, an expert with considerable experience in
animal import risk assessments, to prepare an as sessment of the likelihood that imports of uncooked
Canadian salmon would result in the establishment of the two disease agents identified by the May
1995 Draft Report as posing the greatest risk of introduction, Aeromonas salmonicida and
Renibacterium salmoninarum. Canada instructed Mr. Vose to c onsider only information cited in the
May 1995 Draft Report or the Final Report or that was otherwise available to Australia when it was
preparing its reports. Canada observed that both Dr s. Wooldridge and Burmaster considered the Vose
Report to be "very relevant"81 to the case at hand. The Vose Report concluded that 82:
- a salmonid would need to consume 400,000 kg. of Canadian salmon scraps to be
50 per cent certain of receiving an infective dose of Aeromonas salmonicida or
7,800 kg. of Canadian salmon scraps to be 50 per cent certain of receiving an
infective dose of Renibacterium salmoninarum;
- the dilution rates in dumps containing Ca nadian salmon scraps which might carry the
two disease agents would be so high as to make the risk associated with water run-off
negligibly small;
- the maximum average levels of the two disease agents in waste water due to imports
of Canadian salmon would be billions of times lower than the levels necessary to
cause an infection; and
- one would have to wait hundreds of thousands or even millions of years to be
50 per cent sure of at least one lesion containing the disease agents entering Australia
in imported Canadian salmon and that lesion would then have to complete intact all
of the remaining post-entry steps in order to lead to possible disease establishment.
4.73 Australia drew attention to its request that the Vose Report be excluded as evidence. 83 The
Vose Report had been amended overnight and the revised version was not communicated to Australia
until 6 February 1998. Australia had subsequently provided initial written comment which contested
some of the science, but Canada had contested th e admissibility of this comment as evidence.
Australia had noted that the Vose Report and other studies had not been subjected to the same WTO
legal scrutiny as the Final Report, nor did they pur port to be risk assessments in the sense of the SPS
Agreement. Canada was ignoring requirements of due deference and was requesting the Panel to
undertake a de novo review.
4.74 Nonetheless, without prejudice to Australia's concerns about its admissibility as evidence -
and also without prejudice to Australia's concerns th at this paper had not been subject to the same
scientific scrutiny (including scientific peer review ) as the Final Report, Australia argued that the
Vose Report attempted to assess only the risk of in troduction and establishment of only two of the 24
agents of concern and did not attempt to assess the consequences of introduction. Australia agreed
that it provided a reasonable approach to deve loping a quantitative model of the risk of introduction
of these two agents, if sufficient relevant date were available. However, Australia stressed that the
paper's attempt at a quantitative assessment of the risk of disease establishment was incomplete in that
it attempted to assess for only two of the 24 agents of concern only one of a potentially large number

82 "Quantitative analysis of the risk of establishment of Aeromonas salmonicida and Renibacterium
salmoninarum in Australia as a result of importing Canadian ocean-caught salmon", David Vose, (the "Vose Report"),
December 1997.
83 Paragraph 4.4.

of pathways by which contaminated or diseased impo rted product could reach susceptible host fish in
Australia. The particular post-entry exposure path way that the Vose Report attempted to model (i.e.
exposure via contaminated groundwater from garb age containing contaminated or diseased imported
product) ignored other higher risk pathways associat ed with the disposal of scraps as waste (e.g. the
risk of spread via excess run-off and floods, scavengi ng birds such as seagulls, or the entry of raw or
poorly cooked scraps to waterways by other means, in cluding restaurant scraps, picnickers, or people
deliberately feeding scraps to birds or fish). Aust ralia also raised concerns regarding the paper's
omission of consideration of the risk of introduction and establishment of Aeromonas salmonicida ,
the causative agent of furunculosis, through sk in mucus of salmon. What the Vose Report did not
attempt to model was of considerably more importan ce than the details of what it did attempt, and it
confirmed Australia's view that a fully quantita tive approach for evaluating the likelihood of
establishment and spread of exotic pathogens importe d with the product at issue was not feasible or
appropriate. Australia noted again that it was under no obligation to attempt a quantitative risk
assessment and reiterated concerns it had previously expressed about the difficulty and limitations of
a quantitative approach in complex scenarios where there were significant gaps in information.
4.75 Australia contended that much of what Cana da claimed to be substantial scientific evidence
simply related to an absence of reports. It did not re late to directed scientific work aimed at detecting
whether something occurred or not. Spread, if occurring through product, in countries where the
disease agent existed was unlikely to be attributed to the movement of product, frequently because of
the delay between any incident introducing the agent and the recognition of the presence of the agent.
Also, once a presumptive diagnosis was made of a newly identified disease agent, the bulk of
scientific work was concentrated on control and eradi cation. Canada's evidence was in the realm of
assertion, drawing on a statement in a New Zealan d risk assessment and selective quotations from
various Australian studies, which did not contradict the science of the Final Report. The "substantial
epidemiological evidence" cited by Canada related solely to opinions expressed in reports and studies,
much of this relating to levels of risk. Some of this opinion had since stood corrected in relation to
the recent presumptive diagnosis of ISA in New Brunswick salmon, which had led to stock
eradication and other quarantine measures, at significant financial cost.
4.76 Australia argued that in order to establis h whether a measure was "necessary", reference had
to be made to the appropriate le vel of protection and whether there was a risk that the appropriate
level of protection would not be achieved if the pr oduct (uncooked salmon) were to be imported in
any form. Australia had not claimed that there need ed to be irrefutable scientific evidence that an
event would not occur, rather that "sufficient scientific evidence" was relevant to the appropriate level
of protection. Australia had identified through sci entific research that there was a potential for a
number of disease agents exotic to Australia to be present in uncooked Canadian salmon. If product
entered, disease agents would enter. This was not in dispute. On the basis of available scientific
information, it had been determined that there was a likelihood that those disease agents could be
present in the product on arrival in Australia even if the product had been subject to certain forms of
treatment other than heat treatment. In addition it had been established that the entry, establishment
or spread of those disease agents could occur through certain identified pathways. Options for
managing the risk by means other than restricti ons on imports had been a ddressed but had not been
considered to be adequate to achieve the appropriate level of protection. It had been concluded that
there was an unacceptable level of risk associated with the importation of the product in question. For
these reasons, Australia argued that it determined that the measure was necessary to achieve its
appropriate level of protection.
4.77 Australia argued that "sufficient scientific evidence" did not require a demonstration of
conclusive scientific evidence. Australia was entitled to adopt a cautious approach. There was
sufficient scientific evidence of a risk of disease entry, spread or establishment to maintain its
measure.
84 The SPS Agreement did not set value or vol ume thresholds nor categorize obligations

84 Final Report, pp. 7-10 outlines the process used to gather information.

according to trade or economic concerns. There were no limits to the type or scope of a measure used
by a Member; the SPS Agreement did not preclude Members from maintaining import prohibitions if
such measures were necessary for the protection of life and health. The evidence presented by
Australia was sufficient for the purposes of determini ng that the appropriate level of protection could
not be achieved if uncooked salmon from Canada were permitted entry. 85 Australia was not obliged
to demonstrate that there was conclusive eviden ce. Canada's arguments were based on opinions
expressed about the absence of conclusive evidence. Australia had pointed out the significant gaps in
scientific research in salmon and other aquatic animals compared to the work undertaken on terrestrial
animals, where products for human consumption were known to have spread disease. In terms of
"sufficient scientific evidence", the Appellate Body in EC - Hormones made it clear that a risk
assessment did not necessarily have to embody only the vi ew of the majority of the relevant scientific
community and Members were entitled to take decisions notwithstanding scientific uncertainty.86
4.78 Australia summarized that the availa ble scientific evidence indicated that:
- at least 20 disease agents, exotic to Austra lia were potentially present in adult, wild,
ocean-caught Pacific salmon which might be imported into Australia from Canada;
- some or all of these disease agents, togeth er with some other disease agents present in
other Canadian salmon populations, could en ter, establish or spread in Australia
through the importation of uncooked salmon of Canadian (or United States) origin;
and
- if established, the disease or strains of di sease agent were unlikely to be amenable to
eradication, with serious economic and environmental impact.
4.79 Australia argued that for most of the diseas e agents, the information necessary to establish the
likelihood of their entry through the importation of uncooked Canadian salmon was lacking. The data
that was available was often fragmentary or incomplete.87 The gaps in information were significant to
quarantine decision making. This had not been cha llenged by Canada and the gaps in data had been
acknowledged by the experts advising the Panel. The experts referred to the contribution of the Final
Report in this regard. Improved epidemiological evidence was particularly needed to support
assertions of the safety of uncooked products. Ne ither had Canada provid ed any alternative or
supplementary scientific evidence which would refute the conclusion, based on available scientific
evidence, that there was a risk of entry, spread or establishment of the diseases at issue. This had
furthermore been confirmed by the experts advising the Panel. Canada's evidence did not relate to
science, but to level of risk. Gaps in scientific knowledge did not equate to insufficient scientific
evidence. If those gaps were filled and provi ded evidence which might modify the basis for
conclusions, Australia would be prepared to review the information, as made clear in the Final Report.
To date, Canada had been unable to provide directly relevant scientific evidence on endemic disease
agents present in a major resource, including inform ation pertaining to: prevalence of infection in
adult, wild, ocean-caught Pacific salmon; impact of processing and handling on the infection;
effectiveness of inspection at detecting infections; infectious dose; or route of infection.
4.80 Australia contended that the absence of evid ence of spread was not equivalent to evidence
that spread did not occur. 88 In this regard, Australia claimed that the recent introduction of prawn
diseases, yellowhead, whitespot and Taura syndrome into North America provided strong evidence
that products destined for human consumption could be responsible for the sp read of aquatic animal

85 References cited in the Final Report.
86 Op. cit., paras. 193 and 194.
87 Final Report, pp.VIII-IX.
88 Humphrey Report, p.117.

diseases. These diseases had a substantial impact on the American prawn industry. In regard to
evidence presented in Table 5, Canada had not in cluded all disease agents considered in the Final
Report, thus the information was not a reliable indi cator for the totality of the risk being addressed.
Finally, Canada had not disagreed that there was a risk of disease spread through product for human
consumption.
4.81 Australia noted that it was a misrepresentati on of the conclusions reached in the Final Report
to state that they were the opposite of those reached in May 1995. The recommendation from the
May 1995 Draft Report had been among the five op tions which had been considered in the Final
Report. The recommendations of the May 1995 Draf t Report represented the next greatest level of
risk when compared to recommendations in the Final Report. The Final Report incorporated the
science of the May 1995 Draft Report but could not be described as a reversal of a policy position.
Rather, it had been decided to adopt the next more conservative option, consistent with Australia's
appropriate level of risk.
4.82 Canada refuted Australia's reference to "advances in scientific knowledge" in respect of new
pathogens, prawn viruses, biofilms and the identificati on in Australia of the alternate host of whirling
disease pathogen. When questioned by the Panel, Dr. Rogers had said that all experts advising the
Panel agreed that they were not aware of any information advances in scientific knowledge that would
justify a change in the conclusions from the May 1995 Draft Report to the Final Report.
4.83 According to Canada, none of the cited information constituted advances in scientific
knowledge that would justify a change in the c onclusions. Regarding pathogen identification,
Australia had acknowledged that the information a bout ISA, Erythrocytic necrosis virus and VHS
came after the Final Report. The apparent identifica tion of these pathogens in Atlantic salmon had
no relevance to Australia's Final Report, which examined only wild, ocean-caught Pacific salmon.
4.84 Canada noted that with regard to praw n viruses, Australia had acknowledged in the Final
Report that the route of entry of the virus into the United States was unknown and that the relevance
of this example was limited. 89 Australia, in attempting to explai n why non-salmonids hosting several
of the same disease agents common to salmon were permitted entry into Australia (while salmon was
not), had argued that with regard to the carriage of organisms by species of fish other than salmonid, it
was difficult to draw any conclusions without having first undertaken any risk analysis. Yet Australia
was more than willing to use the purported spread of prawn viruses as evidence of the risk of entry,
establishment or spread of disease agents to justify its prohibition on the importation of uncooked
salmon products. In terms of biofilms, Australia had acknowledged in the Final Report that biofilms
had minimal if any relevance to Australia's measure and had showed that the information on biofilms
could not be used to justify the prohibition on uncooked salmon.
4.85 Last, Canada argued that the identifica tion in Australia of the alternate host for M. cerebralis,
was not enough to justify a complete reversal of the May 1995 Draft Report's conclusion. Australia
had acknowledged in the Final Report that whirling di sease was not present in Canada at all, and, in
any event, the disease was associated with young sal monids in freshwater. Hence, the Final Report
did not contain advances in scientific evidence sufficient to justify the reversal of the
recommendations in the May 1995 Draft Report.
4.86 The heat treatment conditions set out in Au stralia's measure and the consequent ban on the
importation of uncooked salmon product had to be rationally supported by the available scientific
evidence to achieve Australia's appropriate level of protection. In Canada's view, there was no sound
scientific reason for Australia to continue to mainta in a heat treatment policy that had the effect of
banning the importation of uncooked Ca nadian salmonid products into Au stralia. Canada noted that
Australia had stated that "[w]hat is certain is that applied heat will reduce the number of viable

89 Final Report, p.38.

disease agents that may be present" (emphasis added) . Australia had furthermore stated that the
scientific basis for its heat treatment policy was based on information available in 1983. Canada
claimed that in 1988, when the heat treatment requirements were last amended, the scientific
information then available about the effectiveness of heat treatment in inactivating the 24 pathogens
listed in the Final Report was at best sparse and con tinued to be limited. Australia continued not to
have scientific evidence of the inactivation of any of the disease agents listed in the Final Report when
the fish host was heated. 90 Australia had acknowledged that exis ting heat treatment requirements had
to be reviewed. In the BRS Report, it had been stated that:
"The current process of heating salmonid finfish to inactivate potential exotic
pathogens does not have a rational basis in view of the thermal stability of a number
of pathogens of high quarantine importance, especially at the lower temperature
ranges."
91
4.87 Canada noted that Australia was not awar e of any studies that had examined the heat
inactivation of many of these pathogens when grown in artificial medium (i.e. outside the host fish).
Thus, in Canada's view, it was clear that for a nu mber of pathogens listed in the Final Report there
was no "certainty" that heat treatment woul d reduce the number of viable pathogens. 92 To the
contrary, Canada claimed that Australia had been aware, since 1991, that especially at the lower
temperature range of its heat treatment requirement s several pathogens not only survived but actually
would grow.93
4.88 Australia contended its assessment of the 24 salmonid disease agents was based on relevant
scientific data. It had evaluated:
- the presence of the disease in Australia (disease status, testing methodology and
reliability, control measures);
- exporting country factors (population susceptible to infection by agent, prevalence of
infection, effectiveness of the diagnostic tests applied to the agent, disease control
policies of the exporting country, disease zoning);
- commodity factors (whether agent found in host, whether there is change of
prevalence with the time of year/life cycle);
- pathogenesis factors (disease agent predil ection sites, the number of disease agents
likely to be found in the commodity, ease of disease agent contamination and the
sequence of events for an exotic disease to become established in Australia);
- agent factors (pH lability of the agent, agent's liability to cooling, freezing and
heating in the product, whether the agent survives free in the environment);
- exposure factors (what hosts are infected naturally, distribution of known primary,
secondary and intermediate hosts, mode of transmission and infectious dose);
- risk reduction factors (restricting zone of origin, species of origin, life cycle stage,
pre- and post-shipping quarantine, product testing with tests having high sensitivity,

90 Final Report, Chapter 2.
91 BRS Report, p.37.
92 Final Report, pp. 262, 257, 244, 238, 233, 227, 216, 206, 182, 166, 138.
93 Pathogens in the Final Report known to survive included Aeromonas salmonicida (typical),
Renibacterium salmoninarum , Edwardsiella tarda , Yersinia rucke ri, and infectious pancreatic necrosis virus.
Pathogens known to grow at the lower temperature range included Edwardsiella tarda and Yersinia ruckeri.

processing, maturation and storage for specified time and temperature, treating such
as heating or disinfection, restricting the destination, vaccination, certification); and
- consequences (consequence of disease intr oduction on native and introduced species,
ability to control or eradicate if disease were introduced).
The risk assessment had also included a study of the economic impact of two salmonid diseases,
furunculosis and infectious haematopoietic necrosis (IHN).
4.89 In regard to heat-treated product, Australia recalled that heat-treated product was not within
the scope of Canada's initial complaint (paragraph 4.8). Nonetheless, Australia referred to its
statements under the relevant provisions of Artic le 5 (paragraphs 4.194-4.213), including that heat-
treated product was scheduled to be reassessed as part of the aquatic review. The current measures
for heat-treated product were ba sed on science available in 1982 and there had been some views
expressed that the measures might not be sufficiently restrictive in terms of Australia's appropriate
level of protection. In regard to Canada's arguments of "refutations " of Australia's claims, Australia
reiterated the different status of various studies a nd reports cited by Canada , including the difference
between opinions on levels of protection and judgme nts on the basis of a detailed risk assessment.
Australia also referred to its statements in para graphs 4.152-4.154 that it was not claiming that the
difference between the recommendations of the Final and draft reports was for reasons of new science
 (f) Article 2.3
Members shall ensure that their sanitary and phytosanitary measures do not arbitraril y or unjustifiably discriminate between Me mbers
where identical or similar conditions preva il, including between their own territory and that of other Members. Sanitary and
phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade.
SPS Agreement, Article 2.3
4.90 Canada argued that Australia's ban on the importation of uncooked salmon violated the first
sentence of Article 2.3. This sentence provided th at where identical or similar conditions existed
between Australia and any other WTO Member, Au stralia was under a positive obligation to ensure
that any of its sanitary measures applied to protect salmonid life or health in its territory did not
arbitrarily or unjustifiably discriminate against any other WTO Member.
4.91 Australia noted that Canada's claim in respect of Article 2.3 was limited to the measure being
discriminatory contrary to Article 2.3. In the cont ext of Article 2.3, Canada had not claimed that the
measure constituted a disguised restriction on international trade.
4.92 Australia argued that Article 2.3 represen ted a basic obligation, elaborated under the
provisions of Article 5. The basic obligation set out in Article 2.3 needed to be read in the context of
the use of the same terms in Article 5.5. The Appellate Body in EC - Hormones , had affirmed that
Articles 2.3 and 5.5 had to be read in context a nd that Article 5.5 marked out and elaborated a
particular route leading to the same destination as Article 2.3. In particular, Articles 5.2 and 5.3
needed to be taken into account in determining wh ether there were similar conditions in the sense of
Article 2.3 in the same way as when examining Article 5.5. 94 The basic obligation under Article 2.3
was: (i) that the measure (the quarantine pr ohibition on uncooked salm on from Canada) did not
arbitrarily or unjustifiably discriminate between Ca nada and Australia or be tween Canada and other
Members, under circumstances where identical or si milar conditions prevailed, and (ii) that the
measure was not applied in a way which could constitute a disguised restriction on trade.

94 Op. cit., para. 212.

4.93 Australia claimed that there was no situati on in existence which imposed different conditions
on different Members in respect of the importation of uncooked salmon. In addition, Australia argued
that under circumstances where a number of disease ag ents exotic to Australia had the potential to
enter, establish or spread subsequent to imports of uncooked salmon of Cana dian origin, it could not
be claimed that there were identical or similar c onditions prevailing between Australia and Canada in
respect of the same product and the same diseases.
4.94 In regard to other products which might hos t the same diseases or disease agents exotic to
Australia, Australia argued that it would have to be necessary to establish whether there would be
identical or similar adverse health effects or consequences of the kind listed in Article 5.3, in the event
that such a product were permitted entry. A simple comparison of trade restrictions on those products
did not constitute evidence of "ide ntical or similar conditions". A prima facie case could not be
established solely by identifying that different m easures applied to other products which might host
one or more of the diseases present in uncooked salmon. It was Australia's contention that there were
no prevailing conditions which were identical or similar to the risks and consequences associated with
the 24 disease agents of concern potentially present in uncooked salmon of Canadian origin.
4.95 Canada argued that in Australia there were di sease agents of serious pathogenicity not
examined in the Final Report that were exotic to some of Australia's States with salmonid aquaculture
or recreational fisheries. Australia did not cont rol the movement of salmonid products from infected
States to disease free States or Territories to protect its salmonid populations from these salmonid
disease agents. An example was epizootic haematopoietic necrosis virus (EHNV), a disease notifiable
to the OIE. 95 EHNV had been recorded in Australia, and was found in Victoria where salmonid
populations of rainbow trout and Atlantic salmon were substantial. EHNV had not been reported in
Western Australia where rainbow trout was commerc ially cultured and provided an important sport
fishery. Yet the Final Report had made it clear th at Australian State and Territory governments had
not placed any controls on the movement of salmonid products from areas where EHNV was found to
areas where EHNV was exotic:
"Control measures have been placed on the movement of live salmonids from EHNV infected
areas to free areas, but as infection of salmonids is rare it has not been necessary to place
controls on the movement of salmonid product." 96
4.96 Canada argued that this cons tituted an arbitrary and unjustifiable distinction. In the case of the
interstate movement of salmonid products from a State where an OIE Notifiable salmonid disease was
detected to a State that was free of the di sease, Australia had claimed that there was a possibility of
disease establishment in salmonids via salmonid products , but this was "rare" and thus it had not been
necessary to place controls on the movement of the salmonid products. However, in the case of the
movement of salmonid products from a Member into Australia, the existence of any one of a number
of diseases that Australia claimed were exotic raised for Australia the possibility of disease
establishment in salmonids via salmonid products. Regardless of the degree of pathogenicity of the
diseases or the likelihood of disease establishment, this possibility was the basis for Australia's
prohibition on the importation of uncooked salmon. In this sense, Canada argued that Australia
violated the first sentence of Article 2.3 of the SPS Agreement.
4.97 Australia argued that Canada's assertion that identi cal or similar conditions prevailed were
based in part on the fact that EHNV was an OIE notifiable disease, and as such would be at least as
serious a health concern as the exotic salmonid disease or strains of disease agents. In this respect,
Australia argued that status as a Notifiable disease di d not constitute evidence of "identical or similar
conditions". There remained a question whether the classification of EHNV as a notifiable disease
was appropriate in the light of it being a disease that caused little environmental or commercial

95 OIE Code, p.67.
96 Final Report, p.379.

damage within Australia. 97 The OIE list of notifiable diseases did not include those diseases which
were serious, but had a br oad geographic distribution, nor did it reflect the severity of the disease in
terms of risk of occurrence or consequences. 98 It did not list some serious salmonid diseases of
quarantine concern to Australia. 99 EHN was not considered a significant disease of salmonid fish
compared to redfin perch. Nor could EHN be compared to some of the more serious diseases of
salmonid such as BKD, ISA and typical A. salmonicida. Furthermore, it was also noted that the OIE
Fish Diseases Commission (FDC) did not have the ca pacity to undertake detailed risk analysis in
considering individual diseases for categorizati on and listing, nor did the OIE Code contain any
guidelines specific to salmonids. Australia also referred to its comments with respect to EHNV in
paragraphs 4.99, 4.102, 4.208 and 4.214(v).
4.98 The Australian measure was di rected against the totality of the risk of diseases (cumulative
effect of identified disease agents potentially present in Canadian salmon), not against a single disease
agent. Yet Canada, in Australia's view, appeared to be basing its claims on a like product concept,
inferring that the existence of any disease in a comp arable product equated to "similar conditions".
Consideration of similar conditions under the SPS Ag reement involved similar adverse health effects
and similar biological and economic consequences , together with the feasibility of employing a
similar measure to address the similar risk and conse quences. Even if there were evidence of similar
conditions and measures, there woul d have to be evidence that the non-application of a technically
and economically feasible similar measure arbitrarily or unjustifiably discriminated between Australia
and Canada.
4.99 The factors Members were required to take into account, as detailed in Article 5.3, included
the potential damage in terms of loss of production or sales. These factors might not necessarily be
comparable; by reason of climatic and topogra phical factors the salmonid populations of Western
Australia did not have the same significance in term s of commercial or recreational fisheries as in
south eastern Australia. Hence, the controls on in ternal movement of aquatic animals in regard to
diseases which were not exotic to certain regions of Australia could not be e quated to controls on the
import of products which might carry disease which we re exotic to all regions. The consequences
from exotic pathogen introduction w ould be far greater than those associated, for example, with EHN
alone. In addition, other factors being equal, controlling a disease was easier than attempting to
eradicate or control one that was already endemic. It was Australia's view that there was no
identified, endemic aquatic disease in Australia for which it was warranted, feasible and cost effective
to place internal movement restrictions on product. Australia noted that: (i) there was no significant
trade of fresh salmonid product into Tasmania
100 from the mainland and local demand in Tasmania
was met by local product 101; (ii) if EHNV were to enter W estern Australia, the consequences for
salmonids would be minimal; (iii) if EHNV were to enter Queensland and the Northern Territory, the
consequences for salmonids would be highly margin al due to climatic factors unsuited to salmonid
life (there were no salmonid populations in the No rthern Territory, and in Queensland they were
restricted to a few isolated mountain areas). Where it was present in Australia, EHNV it did not cause
major problems to salmonids.
4.100 Australia maintained that Canada had not provided evidence that identical or similar
conditions existed, only th at controls on introduction within Australia of one disease which was not
exotic to certain regions of Australia differed from the controls on introduction within the whole of
Australia's Territory of diseases which were exotic to Australia. Canada had therefore not made a

97 Australia refers to Resolution No. XII "Amendments to the International Aquatic Animal Health Code and
Diagnostic Manual for Aquatic Animal Diseases", adopted by the OIE International Committee on 29 May 1997.
98 OIE Code, p.109.
99 Final Report, p.12.
100 EHNV had not been reported in the Northern Territory, Queensland, Tasmania or Western Australia.
101 Although demand was met by local product, Australia pointed out that Canadian and Tasmanian product
would fill different markets. Thus, local production could not be relied upon to prevent Canadian salmon from
entering Tasmania.

prima facie case that identical or similar conditions preva iled. Furthermore, Australia argued that
there was no element of arbitrary or unjustifiabl e discrimination against Canadian uncooked salmon
arising from different measures applying to internal quarantine on salmonids and other fish in relation
to a different disease which was not exotic to certain regions of Australia. Establishing that there was
a difference in a measure in regard to different diseases did not imply that there was arbitrary or
unjustifiable discrimination.
4.101 Canada refuted Australia's claim that th e consequences from exotic pathogen introduction
would be far greater than those associated with EHNV alone. In spite of the fact that the Final Report
had shown that EHNV could cause mortalities in several native salmoniforms including the threatened
Maquaria australasica (Macquarie perch) 102, Australia imposed no controls on the movement of
salmonid product that might contain EHNV into EHNV -free States. Australia's attempt to justify its
"no controls policy" for EHNV by claiming that th ere were no salmonids in the Northern Territory
and isolated salmonid production in Queensland stood in stark contrast to the fact that Canadian
salmonid product was not allowed into the Northern Territory or Queensland. Australia had first
claimed that for Western Australia the consequences for salmonids would be minimal. Yet, in its
response to a question from the Panel regarding th e importance of salmonid culture Australia had
acknowledged that in Western Australia a nd other States salmonid fisheries had a significant local
economic impact. Canada stated that it was clear, in light of the above, that for uncooked salmonid
products Australia had violated the non-discrimination requirement of the first sentence of Article 2.3.
4.102 Australia noted that EHN was well understood in Au stralia and that effective management
practices had been developed appropr iate to unique circumstances. Australia referred to the facts of
salmonid production and distribution in Australia, including the concentration of salmonid production
in the south east of Australia because of favourable biological conditions. In States and Territories
other than Tasmania, New South Wales and Vict oria, salmonid aquaculture operations range from
minor (for recreational purposes) to zero. In West ern Australia for example, there was little salmonid
culture. Total aquaculture trout production in that State was 41 tons, valued at $A 455,000 per year.
The hatcheries which provided trout for stocking severa l rivers in the south west of that State for
recreational purposes were routinely monitored for E HN so that, if needed, control measures could be
quickly instituted with a view to avoiding any extremely localised economic impact . The disease was
endemic in Victoria, New South Wales and South Australia. It was endemic to redfin perch
populations and hence the potential for eradication woul d be very low. It would be relatively more
difficult and far less practicable to control the spr ead of pathogens into regions where salmonids were
present, than to prevent the entry of an exotic pathogen into Australia through imported product.
What also needed to be considered were the economic and technical feasibility of controlling endemic
disease through internal controls. This required a case-by-case approach and Australia had in place
emergency preparedness plans for such incidents. In regard to Tasmania, there was no significant
interstate trade in fresh salmonid products, but it could not be conc luded that consumption in that
State would be fully met by local production in th e event that imports were permitted entry.
Australia had considered the possibility of limiting fi sh distribution in Australia, but concluded that
such a measure would not be economically or tec hnically feasible and would not meet Australia's
appropriate level of protection. Australia noted also that, in relation to its federal structure,
operational control of aquatic animal diseases rested with the States and Territories. Coordination of
policy was achieved through a committee struct ure, with members drawn from State and
Commonwealth Government.

102 Final Report, p.98 and p.345.

 (g) Article 3.1
To harmonize sanitary and phytosanitary meas ures on as wide a basis as possible, Memb ers shall base their sanitary or phytosani tary
measures on international standards, guidelin es or recommendations, where they exist, except as otherwise provided for in this
Agreement, and in particular in paragraph 3.
SPS Agreement, Article 3.1
Harmonization – The establishment, recognition and application of co mmon sanitary and phytosanitary measures by different
Members.
SPS Agreement, Annex A.2
4.103 Canada argued that Article 3.1 of the SPS Agreem ent imposed an obligation on Australia to
base its sanitary measures on the standards, guidelin es or recommendations developed under the OIE.
With regard to the disease agents at issue (Table 3), Canada note d that infectious haematopoietic
necrosis (IHN) and viral haemorrhagic septicaemi a (VHS) were OIE Notifiable Diseases. For these
diseases, the OIE Code stipulated that relevant competent authorities103 in countries officially declared
to be free from the respective diseases, should dema nd that dead fish for importation from countries
not free from the respective diseases be eviscerated before transit. 104 That is, the OIE Code for these
two diseases recommended certification only for imports of live fish or dead, uneviscerated fish.
Hence, Canada argued, Australia's prohibition on the importation of uncooked salmon was not based
on the relevant OIE Code standards for IHN and VHS.
4.104 Australia claimed that Article 3 did not have app lication to the dispute. Notwithstanding
Canada's claims of the existence of certain OI E guidelines in respect of two OIE Notifiable disease
agents, it was not possible to apply these two standa rds in respect of a product-based measure. The
risk to Australia related to the presence or pot ential presence of up to 24 disease agents in a product
which might be imported into Australia. The OI E guidelines did not extend to all the diseases at
issue. The fact that the OIE did not have guidelin es for all of the disease agents at issue meant that
there was no relevant OIE guideline on which Au stralia might base its measure. Nor could the
practice of other countries be taken as an OIE sta ndard, particularly in light of the sovereignty
accorded WTO Members to determine their own appropriate levels of protection.
4.105 Australia further claimed that Canada had not met its burden of proof in regard to the
existence of relevant international standards, guidelines or recommendations on which Australia
might base a measure in respect of a number of disease agents present or potentially present in a
product and for which there were no OIE guidelines in existence. There could be no presumption that
an OIE guideline existed on the basis that the OIE had not addressed certain disease agents. Canada
had not demonstrated the applicability of Artic le 3 of the SPS Agreement to the measure.
Furthermore, Australia contended that the OIE Code did not state that evisceration was adequate for
the two Notifiable Diseases in question. It did not go beyond recommending, as part of a minimum
worldwide standard for the control of aquatic di seases, that authorities of countries free of IHN and
VHS should demand evisceration in regard to fish from countries not free from those diseases.
105
More importantly, Australia argued that the OI E did not provide relevant guidelines on which a
product specific measure could be based for the purposes of achieving the appropriate level of
protection in regard to the totality of the disease ag ents of concern to Australia. To assert that WTO
Members could apply no more than the OIE minimu m standard was in effect imposing on Members a
set level of protection, irrespective of the like lihood of disease introduction and the consequences that
would arise from such an introduction. This was in contradiction to each Member's sovereign right to

103 See footnote .
104 OIE Code, Articles 2.1.2.4 and 2.1.5.4 referring to IHN and VHS, pp. 74 and 86, respectively.
105 OIE Code, pp.74 and 86.

determine its own appropriate level of protection. Hence, Australia argued that the guidelines had to
be seen as minimum recommendations and not as a firm set of standards.
4.106 Without prejudice to Australia's claims in respect of the non a pplication of Article 3 Australia
cited the Appellate Body Report on EC - Hormones in support of its claim that the existence of an
international standard did not raise a presumption of inconsistency with Article 3.1. Australia argued
that Canada had the burden of proof in regard to all aspects of Article 3, including evidence that it
would be possible to base the measure on existing international standards.
4.107 Australia stressed that OIE recommendations were characterised as minimum standards and
that the listing or otherwise coul d not be taken as an indicator of the seriousness of disease agent in
terms of adverse health effect, management or consequences. The diseases listed were those of
primary concern to Northern Hemisphere countries, in many cases where the disease was endemic and
hence the focus was more on disease management. Au stralia also noted that evisceration reflected
commercial trading practice of those countries. The potential biological and economic consequences
of disease agents exotic to Aust ralia was an entirely different ma tter than the management of non-
exotic diseases. As confirmed by scientific disease experts advising the Panel, evisceration, while
assisting in the reduction of risk in some instances, would not eliminate the risk. In the case of some
of the disease agents at issue, evisceration would no t have any effect in situations where the disease
agent for instance was blood borne. Australia also noted that OIE standards were not based on an
assessment of risks, and that compared to terrestri al animals, OIE work on aquatic diseases was in its
infancy. In this context, Australia noted the comments by the experts advising the Panel that the Final
Report and the present dispute had enhanced their understanding about salmon diseases.
4.108 Canada noted that piscirickettsiosis, bact erial kidney disease (BKD), and infectious
pancreatic necrosis (IPN) were classified as "Oth er Diseases" under the OIE Code. With respect to
these disease agents, the OIE recommendations were limit ed to live fish or uneviscerated fish. As the
OIE made no recommendation in respect of importation of dead eviscerated fish, by implication, the
importation of such fish raised minimal risk fo r transmitting these three diseases. Consequently,
Canada argued that Australia's measure was not based on OIE recommendations and was in violation
of Article 3.1.
4.109 In addition, Australia's m easure was not "based on" the relevant OIE Code recommendation.
The Appellate Body Report in EC - Hormones examined the meaning of "based on" in Article 3.1 and
concluded that to be based on an international st andard, a sanitary measure had to adopt some though
not necessarily all of the elements of the international standard.
106 For finfish, including salmonids,
evisceration was the existing OIE recommendation to pr event the transmission of Notifiable or Other
Significant Diseases. Dr. Winton, in advising the Pane l, had stated that evisceration had attained the
status of a de facto standard and that FDC considered eviscer ated fish to represent a minimal, i.e.,
negligible risk that did not warrant restriction of trade, and, accordingly, fell outside the concern of
the FDC. Dr. Winton further noted that th ere was no evidence of transmission of disease from
eviscerated product and until scientific evidence show ed otherwise, the level of risk of disease
transmission from trade in eviscerated products was such that it was not of concern to the FDC.
4.110 In regard to the effectiveness of eviscerati on, Canada noted that neither Drs. Winton nor
Rodgers knew of any specific case of disease transmission from eviscerated fish, including salmonids.
Dr. Winton had noted two scientific studies in this r espect that had not been published simply because
the virus had not been found in the flesh of the t ested fish. Canada argued that the scientific
community was concerned with carrier fish in th e epizootiology of several diseases, but only in

106 Op cit., para. 171, pp.68-69.

respect of live fish. Scientific research did not focus on dead eviscerated aquatic animals because it
was irrelevant.107 In respect of evisceration, Dr. Winton noted that:
"The FDC has considered this point carefully and is unanimous in the opinion that
evisceration of fin fish (e.g., salmonids in this case) provides a very high level of
safety against transmission of disease and that none of the notifiable or other
significant diseases are likely to be transported with such products. Thus, the FDC
has judged that eviscerated products fall outsi de the concern of the FDC. In fact, a
paragraph in the first edition of the A quatic Animal Code (Article 1.5.5.2
paragraph 3) was specifically deleted in the current edition to clarify this point
because the former language provided an op tion for countries to require inspections
of any fish products (even eviscerated fish) that were, in the opinion of the importing
country capable of introducing a disease of concern. Members of the FDC have
reviewed the scientific evidence and are not aware of a known expansion of range for
a fish pathogen due to the movement of evi scerated fish; conversely, there are many
cases of disease transmission associated with shipment of infected live fish, live eggs,
or even uneviscerated fish used to feed ot her aquatic animals that are documented in
the scientific literature." (paragraph 6.144)

"As stated above, the FDC currently regards evi scerated fish to represent a minimal risk that
does not warrant restriction of trade." (paragraph 6.145)
Dr. Rogers stated that:
"It is probably true to say that for a gi ven disease agent, the likelihood of disease
establishment is higher for imports of whole, non-ev iscerated bait fish and for live fish than it
is from imports of uncooked salmon for human consumption." (paragraph 6.100).
4.111 In addition, Canada noted that Dr. Winton went on to suggest that the mere presence of
pathogens in the flesh was not synonymous with th e establishment or spread of fish disease. There
had been examples where fish that potentially contai ned high levels of an infectious agent had not
resulted in transmission of disease if eviscerated.
4.112 Australia noted that Dr. Winton's comments in rega rd to a "de facto standard" referred only
to the United States, Canada and the European Co mmunities and that he had qualified this comment
to the effect that it was hard to say that there was an international standard in existence. The
relevance of unpublished studies referred to by Dr. Winton was difficult to judge because the
methodology of the studies had not been provided, nor had the studies apparently been subject to peer
review. Australia stated that, from a scientific perspective, it ha d doubts about the conclusions from
these unpublished studies or in relation to extending the information provided to the wide range of
different agents of different ta xonomic groups involved and the different circumstances that may
exist.
4.113 Australia considered that evisceration might ser ve to reduce the risk in regard to some of the
disease agents at issue, in particular in regard to VHS, but that it would not serve to reduce the risk in
accordance with Australia's appropriate level of prot ection. With regard to many of the diseases at
issue, including IHN, Aeromonas salmonicida , Renibacterium salmoniarum and Piscirickettsia

107 Canada noted that in a recent book entitled Furunculosis: Multidisciplinary Fish Disease Research, an
entire chapter was devoted to the specific issue of carriers of Aeromonas salmonicida. Yet the chapter did not even
consider the role of dead eviscerated fish in the epidemiology of the disease because it was irrelevant. The publication
was mentioned in the Final Report on pp.353-354.

salmonis, evisceration was not effective. Furthermore, although evisceration could reduce the level of
risk from some diseases as the process physically removed tissues that could carry the disease agents,
this would not substantially reduce the risk because the disease agent could be present in other tissues,
or it could be mechanically transferred from an inf ected tissue to a tissue that was free of the disease
agent. It was clear from the view of the experts advising the Panel that there was no scientific basis
for assertions that evisceration was an effective me ans of reducing the risk to what some experts
might consider to be a "negligible" level. This w as without prejudice to Australia's views on the legal
relevance of an expert's views of what might cons titute a "negligible" level, within the context of a
Member's sovereignty in regard to levels of prot ection and bearing in mind that the views put forward
by experts advising the Panel had not been formed on the basis of a risk assessment, including the
biological and economic consequences of disease entry, establishment or spread.
4.114 Australia acknowledged that the movement of fish and their genetic materials for stocking
purposes and uneviscerated fish had been identified as causes of spread of disease. Nevertheless, the
fact that disease spread was more commonly iden tified with these situations did not eliminate
eviscerated fish as means of spread. Dr. Winton ha d not claimed that evisceration eliminated risk.
Hence, although Australia noted that evisceration woul d reduce the risk, it did not do so to the extent
that it achieved the level of protection required by Australia since it did not fully address Australia's
concerns in regard to the disease agents which could be found in sk in, bone, muscle and blood. It was
evident that not permitting the importation of sal mon provided a higher level of protection than
allowing the import of eviscerated product. Dr. Wi nton had not described what level of risk was
implicit in the OIE recommendations, nor had he been able to refer to any detailed scientific data to
support the FDC's opinion on the alleged safety of evi scerated product. Furthermore, it could not be
demonstrated that evisceration was as effective, or more effective than heat treatment, given in
particular that heat-treated product was eviscerated. Australia contended that eviscerated fish had to
be regarded as a risk product capable of spreading disease. Nor were Dr. Winton's comments made in
the context of a situation of low risk and high consequences.
4.115 Australia argued that the OIE recommended that product be imported in uneviscerated form
only from countries where Piscirickettsiosis, BKD, and IPN were not present.
108 As Piscirickettsiosis,
BKD and IPN were present in Canadian fish, the OIE standard was not relevant to Australia's measure
and did not have application. The Code was irreleva nt in regard to eviscerat ed fish for such diseases
as it did not provide guidelines regarding importation of dead, eviscerated fish. Hence, Australia
noted, the relevant OIE standards, guidelines or recommendations covered only 2 of the 24 diseases of
concern (IHN and VHS). These guidelines were disease-specific and, as Australia's measure related
to the risk of introduction of a number of diseases which the product potentially could host, there were
no OIE guidelines in existence on which Australia coul d base its measure. The measure could not, in
this regard, be broken down into components fo r the individual disease agents; it was a measure
which dealt with the totality of the disease risk. Au stralia maintained that Canada had not submitted
evidence of the existence of a releva nt international standard applicab le to the totality of the entry,
establishment or spread of the 24 diseases of concern.
4.116 Australia noted that there were no detailed cr iteria for diseases to be listed in the OIE Code;
these were listed as a result of discretionary decision making and not necessarily as a result of
considered scientific analysis. Australia recalled Dr . Winton's statement to the effect that there was
no formal method for evaluation of disease risk a nd that the FDC decisions were not based on any
scientific risk assessments process. Hence, Austra lia argued, the FDC itself did not make decisions
based on the risk analysis process that the OIE advocated, and on which Australia had modelled its
Final Report. Australia noted that the FDC did not base its recommendations on detailed examination
of risks. The matter was not helped by the fact that the FDC did not keep any detailed minutes from
the meetings of the FDC. Regarding the diseases examined by the OIE, Dr. Winton had noted that a
lack of a listing (as a Notifiable Disease) did not mean that the FDC considered the disease to be of

108 Australia noted that ISA was included in the OIE list of Other Diseases.

low priority. Given that many serious salmonid diseases were endemic in the northern hemisphere, it
was probable that this had influenced the FDC's c onsideration of salmonid diseases. In other words,
Australia had every right to be concerned about diseases that occurred in adult, wild, ocean-caught
Pacific salmon from North America but that did not occur in Australia - regardless of whether or not
they appeared on the current FDC list of Notifiable Diseases. In this respect, Australia noted that the
five Members of the FDC were from a restricted geographical distribution, with no member being
from a country in the southern hemisphere. None of the FDC members could be expected to have a
deep understanding of the health or production of salmonids in the southern hemisphere - in particular
of Australia's favourable health status and its freedom from the diseases that caused production
problems in countries of the northern hemisphere. Hence, Australia argued that the OIE
recommendations did not reflect the significance to Australia of certain diseases which might be
exotic to Australia but endemic in major aquaculture fishing nations. In light of the above, Australia
reiterated that there was no relevant OIE standard on which it would be possible to base a measure in
respect of a large number of exotic salmonid diseases.
4.117 Canada refuted Australia's argument that releva nt OIE Code recommendations did not exist
because the OIE did not provide a recommendation for each and every pathogen covered by
Australia's measure. Canada recalled that Australia had acknowledged in the Final Report
109 that: (i)
there were international standards applicable to th e importation of uncooked salmon, (ii) the standard
was evisceration, but that (iii) this standard was inappropriate to Australia's circumstances. This
position was consistent with Australia's past re asoning at the October 1996 meeting of the SPS
Committee where Australia, addressing the salmon import ban, had announced to the Committee that
the relevant OIE standard did not meet Australia's acceptable level of protection.
110 According to
Canada, these two facts were sufficient to show th at Australia's position before the Panel was a matter
of "after the fact" reasoning.
4.118 Furthermore, the Appellate Body in EC - Hormones , had noted that there were international
standards, guidelines or recommendations for five of the six hormones that were covered by the EC
directives at issue. In other words, the Appe llate Body had not concluded that there were no
international standards applicable to the five hor mones at issue. Rather, the Appellate Body had
concluded that the European Communities was entitle d to deviate from these standards provided the
EC measures for these five hormones complied with th e conditions set out in Article 3.3 (e.g., based
on a risk assessment in accordance with Article 5.1). 111 In this case the reasoning by the Appellate
Body meant that just because Aust ralia's sanitary measure applied to more pathogens than were
identified in the OIE Code did not mean that there was no relevant OIE recommendation applicable to
the measure. Rather, it meant that for the pathogens identified in the OIE Code, Australia's measure
had to be based on the relevant OIE recommendation or comply with the provisions of Article 3.3 of
the SPS Agreement. Canada stated that if Austra lia's argument were accepted, it would also mean
that so long as a Member claimed that a measure a pplied to just one disease agent not listed in the
OIE Code, all of its other standards, guidelines or recommendations would not apply to the measure.
According to Canada, this would mean that the importance of Article 3.1 to the SPS Agreement
would depend on a Member willing to forego the temptation of saying that its sanitary measure
addressed just one other pathogen. The consequenc e of accepting Australia's argument was that the
importance of internationals standards, guidelines or recommendation to the SPS Agreement would be
critically weakened.
4.119 Australia noted that, while it might be possible to consider application of individual
standards in regard to additives, it was not possibl e to base a measure on an international standard in
circumstances of diseases present or potentially pre sent in a single product and for which there were
few disease-based international standards in existence.

109 Final Report, p.66.
110 G/SPS/R/6, "Summary Report of SPS Committee meeting on 8-9 October 1996", p.4.
111 Op. cit., para. 209, p.86.

 (h) Article 3.3
Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitar y
protection than would be achieved by measures based on the rele vant international standards, guidelines or recommendations, if there
is a scientific justification, or as a c onsequence of the level of sanitary or phyto sanitary protection a Member determines to be
appropriate in accordance with the relevant provi sions of paragraphs 1 through 8 of Article 5. 2 Notwithstanding the above, all
measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measure s
based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement.
Footnote 2:
For the purposes of paragraph 3 of Article 3, there is a scien tific justification if, on the basi s of an examination and evalua tion of
available scientific information in conformi ty with the relevant provisions of this Ag reement, a Member determines that the rel evant
international standards, guidelines or recommendations are not su fficient to achieve its appropria te level of sanitary or phyto sanitary
protection.
SPS Agreement, Article 3.3
4.120 Prior to the Appellate Body Report in EC - Hormones, Canada argued that the last phrase of
Article 3.1 was phrased as an "exception to the posit ive obligation contained in Article 3.1". Hence,
Australia had the burden of proving that non-use of OIE standards, guidelines or recommendations
was justified under Article 3.3 and met the conditions set out therein. Canada claimed that Australia's
measure (i) did not result in a higher level of sanita ry protection than would have been achieved by a
measure based on the OIE standards, guidelines or recommendations, (ii) was not scientifically
justifiable and, (iii) was inconsistent with other Articles of the SPS Agreement, including Articles 5.1,
5.5, 5.6 as well as Article 2. Therefore the cond itions of Article 3.3 were not met and the measure
was inconsistent with Article 3.1. Canada thus ar gued that Australia had failed to comply with its
obligations under Article 3.3.
4.121 Canada further noted that the Appellate Body Report in EC - Hormones , stated that under
Article 3.3 a Member could choose to set for itself a level of protection that was different from that
implicit in an international standard and to implem ent that level of protection in a measure that was
"not based on" the international standard. However, in implementing that measure, the Member had
to comply with the provisions of Article 5.
112 However Australia's measure had (i) failed to specify its
appropriate level of protection for its sanitary meas ure, (ii) assuming that the level of protection
implemented by Australia's measure was a negligible level of risk, Australia's measure did not provide
a higher level of protection than a measure based on the OIE Code recommendation of evisceration,
and (iii) Australia's measure was inconsistent with th e provisions of Articles 2.2, 2.3 and Article 5, in
particular 5.1, 5.2, 5.5 and 5.6. As a result, Aust ralia's measure was inconsistent with Article 3 of the
SPS Agreement.
4.122 Without prejudice to the application of Article 3, Australia stressed that Members were not
required to change their appropriate level of protection in regard to the objective of furthering the use
of harmonized international standards. This was emphasized in the preamble to the SPS Agreement,
the basic rights and obligations in Article 2, as well as in Article 3.3 itself. 113 There could be no
presumption of inconsistency simply on the basis of evidence that a measure had not been based on a
relevant existing internatio nal standard. In light of this, the last sentence in Article 3.3 could not be
read as an exception but as a conditional right. Au stralia further noted that although Canada had

112 Ibid., para. 172, p.69.
113 The sixth indent of the Preamble states:
"Desiring to further the use of harmonized sanitary and phytosanitary measures between Members,
on the basis of international standards, guidelines and recommendations developed by the relevant
international organizations, including ... the Inte rnational Office of Epizootics, ... , without
requiring Members to change their appropriate level of protection of human, animal or plant life or
health; ..."

claimed that Article 3.3 represented an exceptional ri ght and that Australia had the burden of proof to
demonstrate consistency with Article 3.3, Canada had not claimed that Australia's measure was in
violation of Article 3.3.
4.123 Australia contended that the Appellate Body in EC - Hormones , had confirmed Australia's
interpretation of Article 3 obligations, includi ng in regard to the burden of proof on the
complainant.114 The Appellate Body had also confirmed th at international standards, guidelines and
recommendations did not have obligatory force and effect and that a Member was not required to
conform or comply with such standards. Nor did Article 3.3 represent an exceptional right.115
4.124 Australia argued that Canada had not pr esented any evidence to establish a presumption that
Australia was acting in violation of Article 3.3, par ticularly in respect of the "special meaning" given
to the term "scientific justification" in footnote 2 to Article 3.3. Canada's mere reference to
inconsistency with other provisions of the SPS Agreement in the context of Article 3.3 was
furthermore not sufficient to establish a prima facie case of violation of the provisions of Article 3.3.
Without prejudice to Australia's claims that Article 3 did not have application to the dispute at issue,
Australia had, as a result of its risk assessment and in conformity with its rights under the SPS
Agreement, applied a measure different from the inte rnational standard and which resulted in a higher
level of protection than would have been achieved if it were based on the international standard.
Australia stressed that OIE standards, guidelines or recommendations were minimum guidelines,
specifically recognized as such by the OIE:
"Realising that the Code represents a worldwide standard for the control of the listed
aquatic animal diseases, Member Countries may use risk assessment approaches to
include other diseases of particular concern in their national regulations."
116
(emphasis added)
4.125 Australia further argued that claims about the practices of ot her Members (which appeared to
be limited to the United States, Canada and the European Communities) did not constitute scientific
justification that those practices would achieve Australia's desired level of protection. Canada had not
provided alternative scientific evidence about how a measure based on a standard expressed as a
minimal worldwide standard could achieve the leve l of protection Australia considered appropriate
for the diseases at issue. The OIE standards, guidelines or recommendations provided for guidance
and did not impede a country's sovereign right to determine its acceptable level of risk, provided there
was scientific basis for the decision.
4.126 Australia contended that the OIE's Internati onal Aquatic Animal Health Code did not provide
a single appropriate level of protection. It noted that none of the experts advising the Panel appeared
to have responded to the part of Question 26 d ealing with the implicit level of risk in OIE
recommendations (see paragraphs 6.146-6.148). Dr. Winton had stated that, because of the differing
health conditions in various OIE member coun tries, it was impractical to have different
recommendations for each country. Australia stated that, in fact, the OIE recommendations provide a
minimal level of protection against disease entry. The associated implicit level of risk could not be
considered to be the same for all OIE recommendati ons regarding fish. This was because risk had
two components, the likelihood of disease intr oduction, establishment and spread; and the
consequence (or harm) that would result because of disease introduction, establishment or spread.
4.127 In the event that the Panel were to find that OIE's standards, guidelines or recommendations
were relevant to the dispute, Australia argued, in the alternative and without prejudice to the above,

114 Op. cit., paras. 102, 165 and 171.
115 Ibid., para. 165.
116 OIE Code, Introduction, p.vi.

that, contrary to Canada's claims, (i) its own measure would result in a higher level of protection than
would be achieved by measures based on OIE guidelines, and that (ii) on the basis of examination and
evaluation of available scientific information in conformity with the relevant provisions of the
Agreement (Articles 5.1, 5.2 and 5.3), there was scie ntific justification that a higher level of sanitary
protection would be achieved by Australia's measure. Australia recalled that the text of Article 3.3
provided two options for compliance with the conditions attached to the exercise of the right not to
base the measure on an international standard. In accordance with footnote 2, the condition of
scientific justification was met if a Member determin ed that the relevant international standard was
insufficient to meet the appropriate level of protec tion and provided also that the determination had
been made on the basis of an examination and eval uation of available scientific information. The
other option was compliance with the provisions of Article 5.
 (i) Article 5.1
Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the
circumstances, of the risks to human, anim al or plant life or health, taking into acc ount risk assessment techniques developed by
the relevant international organizations.
SPS Agreement, Article 5.1
Risk assessment - The evaluation of the likelihood of entry, es tablishment or spread of a pest or disease within the territory of an
importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential
biological and economic consequences; or the evaluation of the pot ential for adverse effects on human or animal health arising
from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.
SPS Agreement, Annex A, paragraph 4

4.128 Australia argued that Canada confused scientific justification with opinions about a level of
risk. It had not provided alternative evidence to the detailed science of the Final Report, including the
examination of options which might reduce the risk . Canada could not claim, for instance, that
evisceration would achieve a higher level of protecti on than controls on the importation of a product.
If product entered, disease agents would enter. Th is was not contested. Nor could there be any
presumption that an international standard was nece ssarily based on scientific justification. It also
noted that consideration of appropr iate levels of protection includ ed consequences as well as disease
transmission and that the two factors could not be divorced from each other. Australia maintained
that Canada's arguments in respect of the contention that the measure did not result in a higher level of
protection rested on a quotation from the Final Report in regard to the difficulty in distinguishing
levels of risk in regard to each option presented by a continuum of risks. Australia had provided clear
scientific evidence, supported by the fish disease experts, that evisceration would not result in a higher
level of protection than the measure applied by Au stralia. None of the reports cited by Canada
concluded that basing measures on an international standard would be sufficient to achieve Australia's
appropriate level of protection. In contrast, the Final Report, on which the measure was based,
contained a detailed and exhaustive evaluation and examination of available scientific information, on
which basis it was concluded that the OIE guidelin es would not be a sufficient basis to achieve the
appropriate level of protection.
4.129 Canada recalled the requirement of Article 5.1 that a sanitary measure be based on an
appropriate assessment of the risks. Canada argued th at the Final Report did not meet this criteria as
it did not (i) evaluate the likelihood of disease intr oduction but merely identified the possibility; (ii)
examine the risks on a disease-by-disease basis; and ( iii) evaluate the risk on the basis of the various
risk mitigation measures that might be applied.

4.130 In Canada's view, the term "as appropriate to the circumstances" referred to the circumstances
in which a risk assessment was being undertaken. Referring to Annex A.1 and Annex A.4 of the SPS
Agreement, Canada claimed that these circumstances concerned (i) the source of risk (i.e. whether it
was posed by an animal pathogen or a chemical contam inant); and (ii) the subject of risk (i.e. whether
it was to human, animal or plant life or health). The risk assessment and risk assessment techniques
that are appropriate in the circumstances for one type of measure, such as a measure in respect of risks
to human health from chemicals in food, may well be different from that for another, such as a
measure in respect of risks from the entry, estab lishment or spread of disease from an imported
product.
4.131 Australia advised that, in accordance with the Vienna Convention, it interpreted the term "as
appropriate to the circumstances" as requiring a risk assessment based on product, country of origin
and country of destination. In other words, it c onferred a right and obligation on a Member to include
country-specific information in a product-based asse ssment of risk, and to assess the need for sanitary
and phytosanitary measures on a case-by-case basis. Australia drew attention to the relevant
negotiating texts of the SPS Agreement, from which it was evident that a "one model fits all"
approach to risk assessment had been rejected. The term "as appropriate to the circumstances" was
first introduced into the draft text in 1991, in preference to earlier drafts of "risk assessment when
appropriate", "based on adequate risk assessment procedures" and "based on an assessment of actual
risks entailed". It was considered that those term s, while indicating a high degree of flexibility in
making a sovereign judgment as to the level of deta il of any risk assessment, did not address concerns
regarding specific or unique situations or a Member's right to take them into consideration. During
the course of the negotiations of the SPS Agreement, it was Australia's view th at the risk assessment
policies and practices as detailed in its 1988 policy statement (paragraph (iv) refers) represented
prevailing international risk assessment methodology incorporating the need to address specific or
unique situations appropriate to the circumstances. This had been the basis for Australia's acceptance
of the term "as appropriate to the circumstances" fo r incorporation in the final text of Article 5.1 of
the SPS Agreement. Australia further argued that the non prescriptive approach of the SPS
Agreement to risk assessment was consistent with the approach adopted in WTO Agreements relating
to subsidies and countervailing measures, anti-dum ping and safeguards. Those Agreements provided
the envelope of disciplines while allowing for si gnificant differences in approach for assessing key
issues, including the need to deal with a wide variety of different circumstances.
4.132 Hence, in Australia's view "appropriate to the circumstances" with regard to risk assessment
included (i) that the approach had to include, but not be limited to, the risk assessment techniques
which were still being developed and refined by the relevant international organizations, such as the
OIE; and, (ii) the approach had also to recogni ze that there was no single model for risk assessment
and that recent developments in the field might have to be taken into account. Australia drew
attention to the discussions with the experts advisi ng the Panel, from which it was clear that risk
assessment techniques were in constant evolution and th at the views of experts, in respect of desirable
risk assessment methodology and techniques, could not provide a basis for interpretation of WTO
treaty obligations. Australia noted that Article 5.1 did not require that a risk assessment be based on
risk assessment techniques developed by the relevant international organisation, rather that they
should be taken into account.
4.133 Australia argued that what constituted an a ppropriate risk assessment could differ from one
case to another. In view of the gaps in information on many aquatic animal diseases and the relative
stage of development of work on aquatic disease compared to that on terrestrial animals (in part due to
historical circumstances), it was Australia's opini on that the qualitative approach taken in the Final
Report was the most appropriate to the circumstan ces. Nothing in the SPS Agreement imposed an
obligation on a Member to quantify its level of ri sk. Australia considered that a quantitative risk
assessment might be appropriate when there was a single chain of events in an import pathway.
However, there was no contemporary quantitative me thodology that could provide a mathematically
rigorous, stochastic approach for a quantitative risk assessment of a multiple pathway scenario as

posed by the salmon example (multiple disease agents and more than one route by which the agent
could establish in the susceptible population). Th e feasibility of a quantitative risk assessment would
be further limited by (i) insufficient volume of de tailed scientific information; (ii) insufficient
knowledge of likely volumes to be imported each year and (iii) the absence, in Australia, of a policy
judgement to determine what final level of risk w as acceptable, including in regard to consequences.
According to Australia, a qualitative risk analysis w as the most appropriate approach in this case.
Hence, Australia maintained that its measure was based on a risk assessment as appropriate to the
circumstances and that the risk assessment took into account the risk assessment techniques developed
by the relevant international orga nizations. Canada has not met the burden of proof in regard to its
claim that Australia had not undertaken an appropriate risk assessment.
4.134 Australia drew attention to the following excerpts from the Final Report in this context117:
"A qualitative approach has been taken in this risk analysis as there are major
impediments to performing a quantitative analysis. These include the lack of reliable
quantitative data with which to perform th e analysis. Further difficulties are posed by
the multiple, complex, and - in some scenar ios - the long, indirect potential pathways
through which susceptible animals could be exposed to the disease agent in imported
product. These pathways are difficult to defi ne - and there is virtually no reliable
quantitative data to use in calculating the likel y prevalence of agents in product or the
likelihood of susceptible animals being exposed to imported product. The scenarios
of exposure involve unpredictable and unusual events which are difficult to model.
It is noted that New Zealand MAF attemp ted a quantitative risk analysis using only
Aeromonas salmonicida with other agents assessed on a qualitative basis. New
Zealand MAF concluded that, as a result of the importation of chilled, headless,
eviscerated salmon from Canada, there is a 95 per cent probability that there would be
fewer than one disease introduction of Aeromonas salmonicida per ten million tons of
salmon imported. However some have argued that the statistical reliability of that
analysis, including the assumptions used, is open to question. Australia believes the
importation of salmon from Canada and the United States falls into this category
where it is inappropriate to undertake a quantitative analysis."
4.135 Regarding the scope of the Final Report, Australia argued that it had acceded to a request in
late 1994 from Canada and the United States that pr iority be accorded to a risk assessment on wild,
adult, ocean-caught Pacific salmon. There had been no request from Canada to proceed with a risk
analysis for the other categories of salmon product from Canada.
4.136 In respect of the scope of the Final Report, Canada noted that in order to proceed more
quickly and in light of the magnitude of the t ask, Canada had suggested that Australia proceed first
with an assessment of wild, adult, ocean-caught Pacific salmon, on the understanding that an
assessment of other salmon products would follow thereafter. The scope of the task had been
narrowed with a view to facilitating the task so as to achieve progress. According to Article 5.1, it
was for Members taking measures to base those measu re on an assessment of risks. The obligation
was not limited to those instances where another Memb er requested that a measure be based on a risk
assessment. Canada had not excused Australia from its obligations under Article 5.1.
Evaluation of likelihood
4.137 Canada argued that the Final Report did not focus on the probability, but rather on the
possibility of the risk event occurring. The risk event, in this case, was the establishment of exotic
diseases through the importation of uncooked, wild, ocean -caught Pacific salmon. In line with Annex

117 Final Report, p.24.

A.4 and Article 5.1, a risk assessment had to assess the likelihood of the occu rrence of the event that
the measure in question was designed to prev ent by the making of probabilistic estimates.
Probability, in Canada's view, could be expressed qualitatively as well as quantitatively. The OIE
guidelines focused on the "estimation of the probability of an adverse event". 118 This view was
supported by Dr. Wooldridge:
"In my opinion, the requirement of a risk assessment is to evaluate the probability of
risk. Given the existence of a particular disease agent, one can always construct a
possible infection transmission scenario, however improbable, and therefore
demonstration of the possibility of successful transmission and disease is not
adequate. (paragraph 6.59)
"The OIE code does require an evaluation of probability (either qualitatively or
quantitatively) rather than merely possibility of a given outcome or consequence even
if, given current knowledge levels, the confidence limits on that probability are wide."
(paragraph 6.152)
4.138 Canada noted that in the earlier Australian risk analysis, the May 1995 Draft Report, it had
been stated that in order for uncooked Pacific sa lmon to cause exotic diseases to become established
in Australia, each step in a sequence of events ha d to occur. The risk, according to the May 1995
Draft Report, would be reduced to negligible va lues if one or more events in the sequence was
extremely unlikely to occur, or if a number of ev ents in the sequence had a relatively low probability.
These events were listed in the May 1995 Draft Report:
"For imported salmon products to cause an exotic disease to become established in Australia,
the following sequence of events must take place:
 (i) the product must contain exotic pathogens;
 (ii) the pathogens must survive processing;
 (iii) the fish must be visibly normal (to pass inspection);
(iv) the pathogens must survive physical/c hemical treatments, (such as freezing)
in biologically significant numbers;
 (v) the edible product and/or waste products must enter natural water courses;
 (vi) the water must contain susceptible aquatic animals;
 (vii) the pathogens must survive for sufficient time and in significant numbers;
(viii) the pathogens must be exposed to a susceptible host by a route that allows
infection;
(ix) the pathogens must be present in suffi cient numbers to initiate infection in the
host; and
 (x) the host must transmit infection to other susceptible animals."
119
4.139 Canada observed that New Zealand had al so undertaken an assessment of the risks of
importing wild, ocean-caught Pacific salmon from Canada. The 1994 New Zealand Risk Assessment,
like the May 1995 Draft Report, had demonstrated that it was possible to provide a clear statement of
probability (whether quantitative or qualitative) by considering the full sequence of events required
for disease establishment. Although Canada did not contend that the 1994 New Zealand Risk
Assessment was conclusive of the issue of risk posed by importation of uncooked, wild, ocean-caught
Pacific salmon to Australia, it was important to note that the 1994 New Zealand Risk Assessment had
concluded that, when certain sanitary measures were applied, the probability of disease introduction in
respect of each of the diseases in question was negligible.

118 OIE Code, Chapter 1.4.2 (See the title of the Article 1.4.2.1), p. 33.
119 May 1995 Draft Report, p. ii (Executive Summary), see also p.218, para. 7.

4.140 Canada maintained that the Final Report was not a risk assessment because it did not assess
probability. Canada noted that this was made cl ear in the reasons given in the Final Report for
maintaining the measure, which included "the possibility of diseases establishing in Australia". While
it was recognized that probability could be expressed qualitatively as well as quantitatively, all of the
experts advising the Panel agreed that a minimum requirement of a risk assessment was that it
assessed probability. The experts advising the Panel ag reed that the Final Report did not do so and
therefore did not meet that minimum requirement. The Appellate Body in EC -Hormones, had noted
that "probability" referred to "likelihood"
120, hence, it was clear that a ri sk assessment, in the sense of
the first definition in Annex A:4, which refers to the "[t]he evaluation of the likelihood of entry,
establishment or spread of a pest or disease...", must evaluate probability. A mere evaluation of the
possibility was not enough.
4.141 Furthermore, Article 1.4.2.1 of the OIE Code provided that "[t]he number of aquatic animal
import units being imported significantly influences the risk assessment". "Aquatic animal import
units" was defined in Section 1.1 of the OIE Code as "a specified weight of a product of aquatic
origin". Yet the Final Report had made no atte mpt to estimate the volume or weight of salmon
product that would be imported, despite the fact that quantitative data directly relevant to such an
estimate was included in the May 1995 Draft Report.
121 Hence, the Final Report did not conform to
the OIE Guidelines for Risk Assessment.
4.142 Even if the Final Report had constituted a risk assessment, Canada argued that Australia's
measure was not based on a risk assessment. The re quirement in the SPS Agreement was not to do a
risk assessment, but to base its measure on one. Yet Australia's measure operated to prohibit the entry
of all five categories 122 of uncooked salmonids from Canada wh ile the Final Report considered only
adult, wild, ocean-caught Pacific salmon. The meas ure was hence maintained against the other four
categories of salmon without a risk assessment.
4.143 Finally, Australia's measure operated to a llow entry into Australia only for salmon product
that had been heat treated according to certain ti me/temperature requirements. Heat treatment was
thus part of Australia's measure. However, Austra lia itself had stated that the Final Report did not
cover heat-treated product and that it would in the future undertake a risk ass essment for heat-treated
salmon. As the Appellate Body had stated in EC - Hormones, there needed to be a rational
relationship between the measure and available sci entific evidence contained in the Final Report. 123
Australia's current measure was not based on a risk assessment and was in violation of Article 5.1.
4.144 Australia noted that Canada's claims of violati on under Article 5.1 were based on a reading
of Annex A of the Agreement, rather than on the terms of Article 5.1. Canada's claim represented a
selective interpretation of risk assessment. Cana da had read requirements into paragraph 4 of
Annex A for which there was no textual basis. Atte mpts to assign a probabilistic interpretation rested
on a quote from a single dictionary definition. Re ference to other dictionary sources, including
dictionaries of legal usage, revealed that Cana da's interpretation of "likelihood" as equating to
"probability" was not a universally shared view which would be capable of application as a legal
definition, even within national ju risdictions. Contrary to Canada's assertion that the Appellate Body
Report on EC - Hormones supported this interpretation, the Appellate Body in that case did not
address definitions of "likelihood".
4.145 Australia drew attention to the views of the experts advising the Panel in regard to the
confusions associated with the use of terms such as probability, which they were clearly using in the
sense of statistical risk assessme nt techniques and methodology which, they noted, were evolving

120 Op. cit., para. 184.
121 May 1995 Draft Report, p.23.
122 Table 1.
123 Op. cit., para. 193, p.78.

over time. Australia argued that an expert's pref erence for a statistical probability based methodology
or techniques in risk assessment could not be used to define a constant le gal obligation. Experts
advising the Panel had pointed to the linguistic diffi culties and confusions associated with definitions
of "probability", which may not adequately describe a range of possible situations, hence the
preference of some experts for a quantitative appr oach as a desirable future goal (although they
recognised that a quantitative approach might not be possible where there were gaps in data).
4.146 Australia further argued that "likelihood" could not be interpreted in a way which would
restrict the sovereign right of a Member to determ ine its appropriate level of protection, and that
interpretations of "likelihood" coul d not be constructed in a contex t divorced from considerations of
the appropriate level of protection, including in ci rcumstances of low risk of occurrence and high
consequences. Australia noted that "likelihood" had formed part of the SPS draft text in 1990, but on
the basis of legal claims advanced by Canada, the Panel was now being requested to interpret
"likelihood" in the context of the 1998 views of experts on appropriate methodology, which experts
did not view as static. Australia stated that in terms of "likelihood", it did not require scientific
certainty, rather that there should be sufficient info rmation to allow reasonable judgments to be made
in assessing whether the risk met Australia's appropriate level of protection. Australia referred to the
comments of a risk assessment expert advising the Pane l in regard to the need for a judgment to be
made.
4.147 Australia argued that in interpreting the SPS Agreement, a distinction had to be made between
the definition of "risk assessment" set out in Anne x A paragraph 4, and the substantive provisions
including those set out in Article 5. To do otherwi se, according to Australia, would be to fail to give
effect to all the terms of the Agreement in their co ntext. Australia pointed out that the definition of
risk assessment as set out in Annex A paragraph 4, c ontained two parts joined by the word "or". This
clearly indicated that there was no requirement for a risk assessment to meet all the terms in
paragraph 4; compliance with either of the two pa rts of the definition was sufficient. In this sense,
according to Australia, Canada had not put forward any claims that the risk assessment (in the Final
Report) did not fall within the definition contained in the second part of the sentence in paragraph 4.
Hence, Australia contended that the risk assess ment contained in the Final Report had been
undertaken as defined in paragraph 4 of Annex A a nd that it met the requirements of Article 5, of
which paragraphs 2 and 3 thereof elaborated the f actors to be taken into account in a risk assessment,
and as such provided further definition to what cons tituted a risk assessment. There was furthermore
no limitation on the form that an "evaluation of likel ihood" might take, except that is should consider
the possible risk management measures and th e consequences. The SPS Agreement was not
prescriptive about the methodology of risk assessment.
4.148 Australia observed that both Drs. Rodge rs and Wooldridge accepted that quantitative
assessment (i.e. numerical probabilities) could not al ways be done in such a subject as fish diseases
where there were often gaps in relevant data. Dr. Rodgers noted that:
"The possibility and the probability of an event occurring both embody elements of
likelihood and risk. However, as far as I am aware there is currently no pre-requisite
to use the quantitative method, particularly in view of the lack of data in certain key
areas of aquatic animal health. This applies equally when dealing with more than one
disease agent, since, although many risk factors are common between different
diseases, each disease may have unique factor to consider and each of these will have
a variable quantity and quality of useable data." (paragraph 6.58)
In situation where all the scientific information si gnificant to a risk assessment could not be obtained,
it was necessary to apply expert judgement with su itable allowance for uncertainty. The application
of such judgement in the present case had led to the conclusion that no set of technically feasible
measures met Australia's appropriate level of protection.

4.149 Also, the Appellate Body in EC - Hormones had rejected the interpretations of the
requirements of the SPS Agreement to the effect that there was a requirement that a risk assessment
"establish a minimum magnitude of risk". The Appellate Body noted that124:
"the ordinary meaning of "potential" relat es to "possibility" and is different from the
ordinary meaning of "probability". "Pr obability" implies a higher degree or a
threshold of potentiality or possibility. It thus appears that here the Panel introduces a
quantitative dimension to the notion of risk."
"... We must note that imposition of such a quantitative requirement [in regard to a
minimum magnitude of risk] finds no basis in the SPS Agreement."
4.150 Notwithstanding the above, Australia did not agree that the Final Report assessed only the
possibility of an event. Australia contended that the possibility of an event occurring (i.e. possible
pathways) had been evaluated as a first step in th e risk analysis process. This was supported in
Dr. Wooldridge's advice to the Panel. The Final Repo rt had concluded that the risk of introduction of
unwanted exotic diseases from imported salmon meat of adult, wild, ocean-caught Pacific salmon
from North America was likely to be small. 125 This conclusion was re peated in the Executive
Summary in the Final Report, although the term "low" was used. 126 However, given the potential
consequences, and the uncertainty inherent in the assessment, this was judged not to be sufficiently so
low as to meet Australia's appropriate level of protec tion. Australia drew attention to the absence of
argumentation from Canada in respect of the fact ors to be taken into account as enumerated in
Articles 5.2 and 5.3 of the SPS Agreement. Cana da's arguments addressed only entry, establishment
or spread and not biological or economic conseque nces. The SPS Agreement accorded Members the
right to take into account consequences in regard to animal health measures and consideration of the
risk of transmission could not be separated from consequences in the context of determining which
measure might achieve the appropriate level of protection. The present circumstances related to low
risk and high consequences. It was conceivable that in circumstances of a high risk/low consequence
a Member might decide that a particular quarantin e restriction might not be warranted in the context
of achieving an appropriate level of protection, by reason of the capacity to manage or eradicate the
risk or by reason of the minor economic or biolog ical consequences, including the low economic or
social value that a community might attach to consequences. This illustrated that the appropriate level
of protection might still be the same in circumstan ces of widely varying levels of risk of entry,
establishment or spread.
4.151 In respect of the sequence of events set out above (in paragraph 4.138), Australia argued that
although the cumulative probability of the 10 events would be low, there were (i) multiple and
complex pathways of disease introduction and establishment
127, (ii) a significant number of diseases
of concern, (iii) large uncertainties in any estimates of probabilities, and (iv) considerable debate on
the number of actual "steps" or "events" in each chain or branch in the possible scenario tree.
4.152 Australia stressed that a comparison of th e conclusions between the May 1995 Draft Report
and Final Report was not valid. The May 1995 Draft Report was a draft import risk analysis intended
as a public discussion paper and designed to elicit public comment; as such it had no official status.
It represented the risk communication stage of a risk analysis, including recommendations designed to
encourage public debate. There had been two opportunities for comment: the May 1995 Draft Report
and the "Revised Draft IRA", released in May 1996. 128 In addition, this information had been

124 Op. cit., paras. 184 and 186.
125 Final Report, p.70.
126 Ibid., p.xi
127 Ibid., pp.366-371.
128 The 1996 Revised Draft Import Risk Analysis took into account the comments made on the May 1995
Draft IRA. Final Report, p.318.

documented and made available for peer review.129 The May 1995 Draft Report was part of a process
leading to the Final Report, which was submitted to the Director of Quarantine for decision. The
format of the Revised Draft IRA differed from that of the 1995 Draft Report to ensure it was
presented in accordance with OIE guidelines. As no adverse comments had been received on the
change in the format, the Final Report was structured in the same fashion. No inferences of motive
could be attached to the differences in recomme ndations. Australia was not seeking to explain the
differences between the draft and final recommendations as due to new scientific data as such. The
Final Report was an independent document that shoul d be considered on its me rits and should not be
compared to other studies which had been undertak en for different purposes and which had not been
subject to the same level of scientific or legal scrutiny. The May 1995 draft was evaluated following
public comment and included a re-evaluation of the sci entific data in light of Australia's appropriate
level of protection. The conclusion was reached that the level of risk had been underestimated in the
draft report.
4.153 Australia noted that some information had b een included in the Final Report which was not in
the May 1995 Draft Report. This included the sp read of prawn viruses in the United States, the
biofilms issue and the presence of the whirling disease a lternate host in Australia. Furthermore, since
the release of the Final Report, infectious salmon an aemia had been identified in Canada, erythrocytic
necrosis virus had apparently been identified in Atlantic salmon in British Columbia and there was
apparently strain differences in the IHN virus a ffecting wild and aquaculture salmonids in British
Columbia. Australia noted that Dr. Rodgers had al so pointed at the presence of VHS in Canadian
Atlantic salmon, a fact of which Australia had not been previously aware.
4.154 Although the vast majority of the information in the May 1995 Draft Report was included in
the Final Report, some information was no longer required as a result of the re-formatting of the
document or was not relevant to the decision making process. For example, the information on the
percentage breakdown of a salmon into its variou s tissues was omitted as it did not add to the
decision-making process in a qualitative risk analysis; also, the usage of water and waste disposal in
Sydney and Melbourne did not address waste dispo sal in a number of other regions which were
potentially of a higher risk (Tasmania and regional areas). The technical content and the evaluations
made in the Final Report and the May 1995 Draft Re port were similar. The recommendation of the
1996 Final Report differed from the draft reco mmendation because after evaluating the almost
200 comments submitted and re-evaluating the Ma y 1995 Draft Report, the conclusion was reached
that the level of risk of exotic disease entry, th e potential for their spread and establishment and the
economic and environmental impacts, includi ng on recreational fishing, had been underestimated in
the May 1995 Draft Report. Australia stressed that the risk assessment at issue was the Final Report
of December 1996 and that there was no other ri sk assessment on uncooked salmon from Canada.
There was thus no other risk assessment on which the existing measure was based.
4.155 Australia also argued that the New Zealand import risk analysis was not relevant to the
present dispute as (i) Australia believed that New Zealand's use of a quantitative risk analysis
technique was not appropriate in the circumstances; (ii) post entry factors including species at risk,
industry practices, population distribution, waste di sposal practices, environmental conditions, and
disease status were different between Australia and Ne w Zealand; (iii) the New Zealand risk analysis
did not consider the consequences arising from th e introduction of diseases and pests; (iv) the
assumptions made by New Zealand scientists a nd decision-makers did not necessarily reflect
Australia's approach to risk and its appropriate le vel of protection, and, (v) the New Zealand report
had several shortcomings in its modelling techni ques. The relevance of the New Zealand risk
assessment was valid solely in regard to scien tific evidence and whether undisputed scientific
evidence in the New Zealand risk assessment was taken account as part of relevant "available

129 Canada submitted the peer reviews of the May 1995 Draft Report by Dr. Tore Hästein of the Norwegian
Central Veterinay Laboratory and Dr. A.H. McVicar of the Scottish Marine Laboratory.

scientific evidence". Australia noted further that the New Zealand risk assessment, together with
other relevant studies, had not been subject to the same WTO legal scrutiny as the Final Report.
4.156 Australia noted that Members of the WTO were not limited to the consideration of the risk of
transmission of a disease in determining the measure which might be applied, but had in principle the
right to introduce or maintain trade restrictiv e measures in circumstanc es where the likelihood of
entry or establishment might be small, but the con sequences were of an unacceptable magnitude. In
line with Articles 5.2 and 5.3 of the SPS Agreement, the consequences of occurrence also required an
evaluation for the purposes of determining the measur e which might be applied. The Appellate Body
had clarified in EC - Hormones that the SPS Agreement did not distinguish between "risk assessment"
and "risk management" and that defi nitions of "risk assessment" did not stop at scientific evaluation
of risk. 130 Experts advising the Panel had, in this cont ext, stressed that once a level of risk of
occurrence had been defined, it was by far more difficult to decide how to determine an acceptable
level of risk. This was, at the end of the day, a judgement for individual countries. In this regard,
Australian salmon was internationall y competitive and in addition recei ved a premium based, at least
to some extent, on its quality and disease free status , both of which could be threatened by disease
introduction. As Australian product already compet ed effectively with product from North America,
it was unlikely to suffer any adverse economic imp act from competition in the Australian market.
However, the costs of disease introduction were subs tantial enough to threaten the very viability of
the industry. Disease introducti on could affect not only the comme rcial salmonid industry and its
local and export markets, but also have serious implication for recreational and native fisheries.
Disease-by-disease basis
4.157 Canada argued that Australia, having identified 24 disease agents of concern, was obliged in
its risk assessment to make an evaluation of the likelihood of establishment for each one of the
diseases. As Australia had not done this, it was impo ssible to determine the risk, if any, posed by a
particular disease agent. Canada pointed out that the May 1995 Draft Report had contained a
substantial amount of information that had not been included in the Final Report. The May 1995
Draft Report had examined the risk of the same 24 diseases and had reached conclusions as to the
risk for individual diseases. The May 1995 Draft Report had stated that the risk was so small as to not
merit continuation of the present quarantine restrictions.
131 The Final Report had begun with the
premise that 24 disease agents posed a risk and had concluded in exactly the same way. In other
words, it reached no conclusions as to which of the diseases or disease agents of concern did in fact
pose a risk that required the particular measure to ensure that Australia's appropriate level of
protection was met. In Canada's view this was one of the reasons why the experts advising the Panel
had considered the Final Report to be nothing more than a "hazard identification".132 Hence, the Final
Report did not fulfil the requirements of a risk assessment as set out in Article 5.1 and did not meet
the definition of a risk assessment in Annex A of the SPS Agreement.
4.158 Canada noted that Article 1.4.2.1 of the OI E Code provided that the factors listed needed to
be considered "in constructing a scenario by which a disease agent might be introduced into the
importing country" (emphasis added). Further, in referring to country, commodity, exposure and risk
reduction factors, the Guidelines provided that: " Depending on the commodity and the disease agent,
any number of these factors may be used to estim ate the probability of an adverse event for the
importing country" (emphasis added).
4.159 Australia noted that there was no textual basis for Canada's claim that a risk assessment must
separately evaluate risk of occurrence for each dis ease and for each measure which might be applied.
Australia did not exclude that such an approach might be feasible in certain circumstances, for

130 Op. cit., para. 181.
131 May 1995 Draft Report, p.218.
132 Burmaster, Transcript, para. 322.

instance where an individual measure might prove capable of reducing or eliminating a single risk
from an individual disease, pest or substance in rega rd to a human health matter addressing the risk of
occurrence and consequences of di fferent additives. But such an approach was not feasible in
circumstances of the potential risk of multiple diseases carried by a product. As exemplified in
Articles 5.2 and 5.3, the consequences also require d evaluation. Risk of occurrence and risk of
consequences could not be considered in isolation.
4.160 Australia drew attention to its arguments that the SPS Agreement was not prescriptive about
the methodology of a risk assessment (see paragra ph 4.132). In terms of conformity with the
provisions of the SPS Agreement, a risk assessment need ed to be examined in regard to the factors
enumerated in Articles 5.2 and 5.3, as well as the pr ovisions of Article 2 of the Agreement, including
in regard to scientific evidence and scientific principles. Australia considered that, as an initial step,
each disease had to be considered individually, where appropriate and where information was
available; and collectively in the light of the fact that the measure was applied for all agents
collectively. This had been done in Section 1.4 and Section 2 of the Final Report. Australia argued
that the OIE recommendations did not require an assessment for each disease or an evaluation of
possible introduction scenarios. Rather, the risk assessment technique recommended by the OIE was
based on the elaboration of introductory scenarios according to the components stipulated. Australia
noted that the OIE risk assessment guidelines referred to "the risk associated with one or more
disease agents". Hence, Australia maintained th at its measure was based on a risk assessment as
appropriate to the circumstances 133 which took full account of OIE techniques, including assessment
of the risk associated with one or more exotic di sease agents and the scenarios that might be involved
in their introduction, together with subsequent exposure and transmission to aquatic animals.
Australia's risk assessment was based on existi ng, accepted international guidelines contained in
Section 1.4 of the OIE Code in line with Article 5.1.134 Australia noted that the OIE Code indicated:
"Risk analysis must be able to deal with the complexities of reallife situations and no
single method is applicable in all cases. Fo r this reason, countries wanting to conduct
import risk analyses may find it necessary to design their own process for carrying
out the exercise."135
4.161 Australia argued that Canada's interpre tations of OIE methodology requirements were not
relevant. Australia was not required to conform with or base its requirements on OIE techniques.
OIE techniques were in the process of constant change and could not be used to define "risk
assessment" in the context of the SPS Agreement. Yet, in Australia's view, this seemed to be
Canada's main evidence of the need for a disease-by-disease evaluation.
Evaluation of risk in light of measures which might be applied
4.162 Canada argued that Australia failed to evalua te the likelihood of the establishment of the
disease (the risk event occurring) according to each sanitary measure which might be applied (as set
out in Annex A.4). If a Member did not do so, it would not be able to identify the least trade
restrictive measure that would achieve its appropr iate level of protection. The Final Report was
largely a descriptive document. It described scen arios by which a disease establishment might occur,
and it described a number of the factors that were rele vant to an estimation of the probability of such
an occurrence, but it avoided making the necessar y probability assertions for the scenarios it had
postulated. Although the Final Report did identify fi ve quarantine policy options, it did not evaluate
the likelihood that each option would lead to the establishment of any of the diseases of concern.
136

133 Paragraph 4.129 and following.
134 Final Report, p.37 (Risk Analysis Considerations).
135 OIE Code, Section 1.4.1.3, p.30.
136 Final Report, p.69.

4.163 Australia argued that a decision on which measure to take in a particular case would be made
on the basis of a risk assessment against the level of protection which a Member had "deemed" to be
generally appropriate, in accordance with paragraph 5 of Annex A. In this sense, the risk assessment
in the Final Report had evaluated the likelihood of risk according to the range of possible measure that
might be applied. Australia noted that there was no limitation as to the form that this evaluation had
to take except that it had to consider the possible risk management measures and the consequences.
4.164 Australia drew attention to the options iden tified in the Final Report. Options for pre- and
post-entry quarantine conditions on imported product were built into all stages of the risk analysis and
could not be separated out. The Report containe d a technical review of data which examined, for
each disease, control measures, exporting country fact ors, pathogenic factors, agent factors, exposure
factors and risk reduction factors and consequences. In regard to risk reduction factors, the following
issues were addressed:
- restricting the zone of origin, sp ecies of origin, life cycle stage;
- pre and post shipping quarantine;
- product testing with tests having high sensitivity;
- processing, maturation and storage for specified time and temperature;
- treatments such as heating and disinfection;
- restricting the destination;
- vaccination; and
- certification.
As noted elsewhere, the Final Report included an eval uation of the costs of control or eradication in
respect of furunculosis and IHN, including the rela tive cost effectiveness of alternative approaches to
limiting the risk. In regard to consequences, cons ideration was given, for each disease, to the ability
to control or eradicate if the disease were introduced into Australia.
4.165 The Final Report also addressed the follo wing options as part of the risk analysis:
- heat treatment of pathogens of concern, pr e- and post-entry (but Australia noted that
this was outside the scope of the access request by Canada and United States);
- implement the findings of the BRS report in part or in full;
- permit the importation of retail ready fi llets, for distribution in raw form under
specified conditions;
- permit the importation of headless, gilled, eviscerated product under specified
conditions; and
- permit the import of product that complies with current international standards of
evisceration.
4.166 In regard to the options identified in the Final Report, Australia noted that for each option
there was a distinct level of protection and it ha d been established that only the option chosen would
achieve the appropriate level of protection. Australia noted that in regard to the continuum of risks, it
was true that it was difficult to quantify the differen ces in the level of risk afforded by each option,
but, nevertheless, the fact that differences prevailed was evident. The Final Report stated that " [t]he
difference in level of risk between each op tion is incremental and cannot be quantified".
137 However,
the Final Report had clearly stated that Option 1 represented the lowest level of risk (highest degree of
security) of any option considered. 138 Options 2, 3 and 4 were not ranked other than that these fell
between Option 1 (lowest risk) and Option 5 (highest risk).139

137 Ibid., p.62.
138 Ibid., pp. 62 and 69.
139 Australia noted that on page ix of the Final Report "lowest" was an editorial error, and should read
"lower".

 (j) Articles 5.2, 5.3 and 5.4
In the assessment of risks, Members shall take into account ava ilable scientific evidence; relevant processes and production m ethods;
relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-fre e areas;
relevant ecological and environmental conditions; and quarantine or other treatment.
SPS Agreement, Article 5.2
In assessing the risk to animal or plant life or health and de termining the measure to be applied for achieving the appropriate level of
sanitary or phytosanitary protection from such risk, Members sh all take into account as relevant economic factors: the potenti al
damage in terms of loss of production or sale s in the event of the entry, establishment or spread of a pest or disease; the co sts of
control or eradication in the territory of the importing Member; and the relative co st-effectiveness of alternative approaches to
limiting risks.
SPS Agreement, Article 5.3
Members should, when determining the appropria te level of sanitary or phytosanitary pr otection, take into account the objective of
minimizing negative trade effects.
SPS Agreement, Article 5.4
4.167 Canada claimed that Australia's measure was contra ry to Article 5.2 of the SPS Agreement.
Canada argued that according to Articles 5.1 a nd 5.2 a sanitary measure must be based on an
assessment of risks to animal life or health taking into account scientific evidence of the likelihood of
the entry, establishment or spread of a disease. Canada noted that the Final Report came to the
opposite conclusion of the May 1995 Draft Report without calling into question the scientific
credibility of the May 1995 Draft Report, and without presenting additional scientific evidence that
warranted a wholesale reexamination of the conclusions of the May 1995 Draft Report.
4.168 Canada argued that the heat treatment conditions set out in Australia's measure and
consequent ban on the importation of uncooked salmon were not rationally supported by the available
scientific evidence, and were therefore in violation of Article 5.2.
4.169 Australia drew attention to its due process concerns , which included concerns in relation to
Canada's claim of inconsistency w ith Article 5.2 (paragraph 4.10). Australia argued that the Panel
was thus not required to make findings in respect of the consistency of Australia's measure with
respect to that provision. Nonetheless, without pr ejudice to its due process concerns, Australia noted
that Canada's claims rested on a new specific claim that there was no rational relationship between the
measure and the scientific evidence. The basis for that claim was ne w, in regard to heat-treated
product. However, Canada had not clearly identifie d the basis for its claim in the text of the SPS
Agreement. It had cited the Appellate Body Report in EC - Hormones, but its characterisation of legal
issues differed markedly from the language used by the Appellate Body.
4.170 Australia observed that Articles 5.2 and 5.3, together with Article 5.5, imparted meaning to
the scope of a risk assessment, as defined in paragraph 4 of Annex A. The Final Report had
extensively considered the factors set out in Article 5.2. This had been done in regard to the source of
the product and the receiving environment in co nsidering each disease agent. Furthermore, in
assessing the risk and determining the measure to be applied for achieving th e appropriate level of
protection, Australia had taken into account all relevant factors listed in Article 5.3. Australia argued
that although Article 5.4 did not contain any subs tantive obligations, it did impart meaning to the
substantive obligations in Article 2.2 (in regard to "necessary") and Article 5, in particular Article 5.5.
The fact that Australia had previously determined, inter alia, that canned and heat-treated, uncanned
salmon would be permitted entry, was evidence that Australia had taken into account the objective of
minimizing negative trade effects.
4.171 Australia noted also that Canada had never addressed the May 1995 Draft Report in terms of
legal consistency, but presumably its endorsement of th at draft report related to the conclusions rather
than the content. Australia maintained that SPS legal obligations were not about ascribing motive or

intent, but it would be highly misleading to believe that there had been a change in Australia's policy
on an appropriate level of protection between 1995 and 1996.
 (k) Article 5.5
With the objective of achieving consistency in the application of the concept of appropr iate level of sanitary or phytosanitary
protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable
distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised
restriction on international trade ....
SPS Agreement, Article 5.5
Appropriate level of sanitary or phytosanitary protection – The level of protection deemed appr opriate by the Member establishing a
sanitary or phytosanitary measure to protect human, animal or plant life or health within its territory.
SPS Agreement,Annex A, paragraph 5
Determination of the acceptable level of risk
4.172 Canada noted that a fundamental problem in accep ting Australia's contention that only heat-
treated product would achieve its appropriate level of protection was Australia's failure to adequately
express its appropriate level of protection. While a Member had a sovereign right to choose its own
appropriate level of protection, Australia had failed to determine its "appropriate level of sanitary
protection" in maintaining the measure at issue. In not doing so, Australia had, on this ground alone,
violated its obligations under Article 5.5 of the SPS Agreement. Canada noted that among the
conclusions in the May 1995 Draft Report, Australia had stated:
"In light of the substantial information c onsidered on the health status of North
American salmonids, it is AQIS's judgement the importation of salmonid product
derived from wild, ocean-caught Pacific salmon from Canada and the USA under
specified conditions for the purposes of human consumption does not present a
significant risk of the introduction and establishment of an exotic disease or strain of
disease to Australia. Accordingly, AQIS recommends that importation be permitted
under the draft conditions described in Appendix 6.
"It has concluded that the risk of dis ease introduction is acceptably low, having
regard to the potentially serious consequences of such an event."
140 (emphasis added)
4.173 Canada observed that in the Final Report, Australia had indicated:
"As a practical matter, the concept of "acceptable risk" is applied in most
circumstances in a qualitative manner, as is the practice in comparable countries.
Because of its favourable animal health stat us, Australia has traditionally maintained
a consistently conservative approach to the management of risk in accordance with
the broad policy position of government.

"Where Australia has a great deal to lose from the entry and establishment of exotic
diseases, controls on imports are set so as to reduce risk to very low levels."
141
(emphasis added)

140 May 1995 Draft Report, Conclusion, p. 223.
141 May 1995 Draft Report, Conclusion, p. 223.

Furthermore, the final paragraph of the conclusion in the Final Report stated:
"On the basis of the large number of disease agents in question; the many unknowns
about them ; the impossibility of detecting covertly infected animals at inspection;
the multiple, complex pathways thro ugh which imported product could enter
Australian waterways; the presence of potential host species in Australian
waterways; the possibility of diseases est ablishing in Australia ; the substantial
economic impacts that could result to the salmonid aquaculture industry from disease
establishment; the potential loss of amenity and economic impact on recreational
fishing and associated business; the potential environmental impacts on listed
endangered and vulnerable species; an d the ineradicability of disease, it is
recommended that the present quarantine policies for uncooked salmon products
remain in place."
142 (emphasis added)
4.174 Thus, in Canada's view, Australia had gone from apparently using the standard of "no
significant risk" (May 1995 Draft Report), to "very low risk" and "possibility" of risk in the Final
Report. Canada argued that to use the possibility of disease establishment as a basis for refusing
access for uncooked salmon was tantamount to a "zero-risk" policy. In its Rebuttal Submission,
Australia had stated that Canada had not put fort h evidence "that spread could not occur" and that
"Canada is unable to say that there is no risk or that none of the disease agents in question will be
found in Pacific salmon in the Pacific region". It appeared to confirm this when it indicated in
response to a question from the Panel (Question 24)143 that it required freedom of a product from pests
or diseases of concern as the basis for access to its markets. Thus, Australia appeared to be
demanding zero risk that a disease agent would even enter its territory through the importation of
Canadian salmon. Canada also noted that Aust ralia appeared to admit explicitly in its First
Submission (at paragraph 382) that it had not determined its acceptable level of risk at all:
"Use of a quantitative approach implies that there is agreement on what level of risk
is acceptable. A policy judgement is needed to determine whether or not such a risk
is "acceptable", including in regard to c onsequence, and to da te, no such level of
acceptability has been agreed in Australia."
Australia's shifting and contradictory statements in respect of its appropriate level of protection
indicated that Australia had either not determined its appropriate level of protection, or that it was
using its appropriate level of protection not to protect its fish, but to protect its measure.
4.175 Australia argued that the evidence cited by Canada was incorrect or misleading. Australia
recalled its arguments in paragraph that inferences of motive or intent belonged in the realm of
assertion and did not constitute evidence, and further th at there had not been a change in Australia's
policy on an appropriate level of protection for salmon between May 1995 and 1996. Rather, the
recommendations of the Final Report were made af ter a full evaluation of comments in response to
the draft import risk analysis (whose recommendati ons were framed with a view to eliciting public
comment) and a thorough evaluation of the draft repor t by experts. Furthermore, Australia argued
that claims whether Australia had or had not unde rtaken a risk assessment n eeded to be addressed in
the context of Article 5.1.
4.176 Without prejudice to the forgoing, Austra lia had the right to take into account the
consequences of entry, spread or establishment, including the factors listed in Article 5.3 of the SPS

142 Ibid., Conclusions, p.70.
143 Panel's Questions to the Parties on 10 September 1997.
Question 24: Is it correct to say that Australia effectively bans all uncooked salmon whether or not
it originates from Canada or the United States? What is the status of imports of New Zealand
salmon into Australia? What are the possibilities for a country to prove that it is free of the
diseases of concern to Australia and thus to get permission to export its salmon to Australia?

Agreement. The appropriate level of protection was determined in regard to risk, including
consequences - a likelihood of occurrence might be small, but the consequences were of an
unacceptable magnitude. The level of protection deemed appropriate was that of the Member
establishing the measure - there were no minimum or maximum thresholds. The issue of the
determination of Australia's acceptable level of risk was not relevant to the examination of
consistency within the provisions of Article 5.5. Furthermore, Aust ralia claimed that Canada had not
met its burden of proof with respect to Article 5.5. Canada's evidence was in the realm of assertion,
based on assumptions derived from a comparative an alysis of the May 1995 Draft Report, the 1994
New Zealand Assessment and the Final Report. Th is ignored the standard of review and was
tantamount to a de novo review.
4.177 The basis for Canada's claim that Australia had not determined its appropriate level of
protection appeared to be the non-quantification of th e acceptable level of risk. Australia argued that
there was nothing in the SPS Agreement which impo sed an obligation on a Member to quantify its
level of risk. Determination of the appropriate level of protection was a sovereign decision as was
evident from the definition of the term (Annex A, paragraph 5), and the preamble to the SPS
Agreement. Australia recalled its earlier arguments in this respect (see paragraphs 4.146-4.149).
4.178 Australia argued that the appropriate level of protection reflected community expectations
across a range of issues and activities to protect human, animal and plant life, health and safety. The
determination of the appropriate level of protection included consideration of, inter alia, the benefits
of access for imported products as against the costs of pest or disease incursions - in a general sense,
not on a case-by-case basis. The decision on which me asure to take in a particular case would be
made on the basis of a risk assessment against the level of protection which a Member had deemed
generally appropriate, in accordance with the defini tion of risk assessment in Annex A, paragraph 5.
According to Australia, the risk as sessment evaluated the likelihood of risk according to the range of
possible measure that might be applied. Subse quently, in the case of protection from pests and
diseases, a quarantine decision, including specific quarantine measures applicable (ranging from free
entry to prohibition) and consistent with Australia's appropriate level of prot ection, was then made.
Factors to be considered in the case of protecti on from pests and diseases included the likelihood of
introduction, establishment or spread, the conseque nces (economic and social) that would result from
that event occurring and the weighting that would be applied where uncertainty existed. Australia
noted that in the Final Report, explanations or terms to describe the concept of the appropriate level of
protection included:
- "very conservative";
- "where Australia has a great deal to lo se from the entry and establishment of exotic
diseases, controls on imports are set so as to reduce risk to very low levels"; and,
- "Australia develops quarantine measur es to provide the appropriate level of
quarantine security acceptable to the Australian community".
4.179 Australia argued that successive Australian gove rnments, in the light of Australia being an
island State free of many pests and diseases and with a very high economic dependence on
agricultural production and exports, had consistently adopted a conservative approach with respect to
the appropriate level of protection. Quarantine was seen as a fundamental to the protection of
Australia's unique environment and was clearly linke d to Australia's export future which depended on
Australia's relative freedom from pests and diseases. There was a history in Australia of new
agents/pests (for example the cane toad, papaya fruit fly) having a significantly greater impact than in
other countries. Australian quarantine policy, while not based on a zero risk approach, was very risk
adverse because of the consequences of not maintaini ng the current pest and disease status. In regard
to salmonids, the number and distribution of su sceptible salmonid hosts within Australia had
increased significantly since the 1970s. This cha nge, combined with greater mobility of people
(including recreational boating and ecotourism), as well as dietary changes (including greater
consumption of raw fish products) had significantly increased the risk of exposure of salmonids to

imported product since the 1970s. Australia intended to maintain its conservative approach to
quarantine policy while ensuring that sufficient resources were availa ble to maintain a science-based
quarantine system capable of decision making b ased on the weight of scientific evidence and
judgement. Australia underscored that care had to be used when making comparisons between
decisions that had been taken at different times since community expectations on the appropriate level
of protection changed with time.
4.180 Canada refuted Australia's attempt to justify its measure in part by asserting special
ecological circumstances. 144 Australia had offered no evidence for its assertions regarding export
price premiums due to a "privileged health status ". Moreover, many salmonid diseases were endemic
to Australia. 145 Any price premium Australia received was clearly not due to its self-proclaimed
"privileged health status", but rather was likely due to commercial and marketing factors such as
Australia's ability to supply product from January to March (a low production and export period for
northern hemisphere countries), and the freshness of its product due to its proximity to markets such
as Japan. While Australia had argued that dead Canadian salmon posed a potential threat to its
indigenous fish populations 146, Australia had ignored documented threats to those same populations
from its live, introduced recreational salmonid populations.147
4.181 Canada argued, specifically, that Australia ha d contravened each of the three distinct elements
that the Appellate Body in EC - Hormones had indicated were required to make a violation of
Article 5.5, namely:
(i) that the Member imposing the measure compla ined of has adopted appropriate levels
of sanitary protection in different situations;
(ii) that those levels of protection exhibit arbitrary or unjustifiable differences or
distinctions in their treatment of different situations; and
(iii) that the arbitrary or unjustifiable differences result in discrimination or a disguised
restriction on international trade through the measure embodying a particular level of
protection.148
Different levels of protection in different situations
4.182 Canada recalled that Article 5.5 required Austra lia to "avoid arbitrary or unjustifiable
distinctions in the levels it consid ers appropriate in different situati ons, if such distinctions result in
discrimination or a disguised restriction on intern ational trade". Canada argued that "different
situations" in this case were, at minimum, those th at involved at least some of the same 24 disease
agents that Australia had used as a justification fo r its measure. Thus, whatever level of protection
was reflected in Australia's measure, Australia w ould have to impose the same restrictions on the
importation of all products known to host any of the same 24 disease agents, irrespective of whether
the hosts were salmonids or not. The consequences of establishment of the disease would be the same
whether a given disease was established via salmoni d or non-salmonid imports. However, Canada
contended that Australia did not do this. Austra lia explicitly distinguished between salmonids and

144 Final Report, p.70.
145 These included septicaemic and ulcerative disease attributed to Vibrio anguillarum; septicaemic diseases
caused by Yersinia ruckeri , Enterococcus seriolicida and Lactobacillus piscicola ; amoebic gill disease caused by
Paramoeba sp.; haemorrhagic gill lesions caused by Ceratothoa sp.; ulcerative dermatitis caused by Flexibacter
maritimus and Cytophaga psychrophila and various skin and gill diseases caused by the fungi Saprolegnia sp.
Furthermore, Canada observed that endemic to Australia were diseases of other species which affected salmonids,
including Aeromonas salmonicida (atypical), Edwardsiella tarda , and epizootic haematopoietic necrosis (EHN), an
OIE Notifiable disease not found in North America.
146 Final Report, p.108 (Response to Question 3).
147 Report of the National Task Force, p.69; Final Report, p.97.
148 Op. cit., para. 214.

other finfish for sanitary purposes, despite scientif ic evidence that many of the 24 disease agents of
concern to Australia could also occur in a wide range of non-salmonids (Table 6 and Table 7).
4.183 Canada pointed out that the Appellate Body in EC - Hormones had taken a broad view on
what constituted different situations for the purpose of identifying different levels of protection in
different situations, namely some common element or elements that rendered them comparable. 149
The common element for the products Canada had id entified was that they all were known to host
disease agents that were also found in salmonids, th at were exotic to Australia, that might infect
salmon and other salmonids in Australia and that Au stralia had claimed as the basis for its prohibition
on uncooked salmon. Canada also noted Australia's failure to control the internal movement of
salmonids that might host EHNV as another example. In that case, the common element was that
EHNV was another serious disease agent of salmonids, and Australia claimed it was attempting to
avoid the introduction of serious diseases of salmonids by its prohibition of uncooked salmon from
Canada.
4.184 Australia argued that, as supported by the Appellate Body Report on EC - Hormones,
consistency was not an obligation of Article 5.5. Nevertheless Australia had taken steps towards
achieving consistency in regard to aquatic animals as well as in other areas, as evident in the detailed
program of scheduled risk analyses (paragraph refers). Different situations needed to be interpreted
in the light of the Appellate Body Report on EC - Hormones, that is that there must be sufficient
elements in common for the purposes of comparison. The concepts of Article III of GATT 1994 in
respect of "like" or "directly competitive or substit utable" products was not relevant. Article 2.2 ,
which was relevant, referred to "conditions", not products. It was Australia's contention that, in
regard to the evidence submitted by Canada, th ere were no common elements sufficient to render
comparable the levels of protection on salmoni ds and non salmonids. There could not be any
assumption that the existence of th e same disease in another product was an element sufficient to
render comparable the treatment of another produc t which hosted or potentially hosted a significant
number of other diseases. Any such assumption did not have scientific validity. Nor as, evidenced by
the views of the experts advising the Panel, were th ere sufficient common elements in regard to heat-
treated product.
4.185 Australia had imposed the measure on salm on because of the range of disease agents that
potentially might be present in imported salmon. The measure had not been put in place for any one
particular disease agent. The only fact in common was that salmon and another fish might have a
disease agent in common. However, the existence of different measures for different products where
there were one or more diseases in common did not constitute evidence of distinctions in the
appropriate level of protection. Canada had not addressed the issue of comparability of (i) the
likelihood of entry, establishment or spread of di seases in these different products; (ii) the biological
or economic consequences; or (iii) the risk management factors.
4.186 Australia contended that "different situati ons" might occur in regard to the same product and
the same diseases where there might be an identical or similar adverse health effect and identical or
similar consequences. Different situations could also involve the same a dverse health effects and
consequences in respect of different products. In re gard to identical or similar adverse health effect
and consequences, Australia had permitted the entr y of certain cooked prod ucts, which had been
determined to represent an acceptable level of risk . In regard to the same product and the same
diseases, Australia had determined that the same level of protection had to be applied to products from
all sources. With respect to EHNV, Australia recal led its response to Canada's arguments given in
paragraphs 4.97, 4.99 and 4.102 .

149 Ibid., para. 217, p.88.

TABLE 6
Salmonid Disease Agents Identified In Australia's Final Report Known To Occur
 In Non-Salmonid Fish Imported Fresh Or Frozen Into Australia
(As Argued By Canada)
Disease Agent Non-salmonid host species
(Number of additional non-salmonid host
species)
Australian import
A. BACTERIA

Aeromonas salmonicida (atypical)

Pacific herring
Haddock
Atlantic cod
Plaice
Japanese eel
(28)

Herring
Haddock
Cod
Plaice
Eel

Aeromonas salmonicida (typical)

Coalfish
American eel
Atlantic cod
(32)

Coalfish
Eel
Cod

Edwardsiella tarda

Japanese eel
(10)

Eel

Vibrio anguillarum

Atlantic cod
Coalfish
(8)

Cod
Coalfish

Vibrio salmonicida

Atlantic cod

Cod

Yersinia ruckeri

European eel
Coalfish
(9)

Eel
Coalfish
B. VIRUSES

Erythrocytic necrosis virus

Atlantic herring
Pacific herring
Atlantic cod
(15)

Herring

Cod

Infectious pancreatic necrosis virus (IPNV)

European eel
Japanese eel
Dover sole
Cod
(25)
Eel

Sole
Cod

Infectious haematopoietic virus (IHNV)

Pacific herring

Herring

Viral haemorrhagic septicaemia virus
(VHSV) (N.A. strain)

Pacific herring
Pacific cod

Herring
Cod

Viral haemorrhagic septicaemia virus
(VHSV) (European strain)

Atlantic cod
Haddock
European eel
(3)

Cod
Haddock
Eel
Source: First submission of Canada, Table 6, p.79-80.

TABLE 7
Australian Imports Of Live Fish Known To Host Disease Agents
Identified In Australia's Final Report
(As Argued By Canada)
Fish Disease Agent Total number of
fish Imported
1988-1995

Ornamental: fresh water

IPNV
A. salmonicida (atypical)
Y. ruckeri
E. tarda

57,663,000

Ornamental: salt water

V. anguillarum

1,193,000

Carp

A. salmonicida (typical)
IPNV
A. salmonicida (atypical)
Y. ruckeri

3,814
Source: First submission of Canada, Table 7, p.82.
4.187 In regard to the same di seases which might be present in other products, Australia argued that
due to scientific knowledge about the presence of e xotic diseases in salmonids and the research which
had been undertaken on entry and establishment of the diseases, salmon represented the only finfish
on which a species-specific level of protection had been established. As concluded in the Final
Report, Australia had determined that there was an unacceptable level of risk associated with the entry
of uncooked salmon from Canada and the United States.
4.188 Australia further noted that a Task Force 150 had been established to examine and report on
issues relating to the importation of fish and fish products into Australia, including fish health,
industry implications and environmental aspects. The Task Force had been concerned about the
potential risks inherent in some existing aquatic animal imports. Australia had reaffirmed its
commitment to undertake open, transparent, scientif ically-based import risk analysis of these imports
in order to clearly identify the risks and take appropr iate action to ensure the consistent application of
quarantine policy in line with Australia's interna tional obligations. Following recommendations by
this Task Force, Australia had attached quara ntine conditions to imports of uncooked freshwater
crayfish products and prawns not fit for human consumption.
4.189 If Article 5.5 were to be interpreted in a way which required Australia to impose the same
restrictions on other fish which might host other diseases, Australia would then run the risk of
breaching its obligations in regard to the measur es on those other products, including Article 5.1
obligations. It was Australia's view that risks as sociated with other aquatic animals could not be
compared in the absence of a risk analysis. This was supported by the experts advising the Panel.
The same measure, applied in different circumstances, might not achieve the same level of protection.
Consistent with a Member's rights under Article 5. 7 of the SPS Agreement, it could not be excluded
that, depending on the circumstances, quarantine restrictions be considered on the importation of other
aquatic animals and their products prior to the co mpletion of an import risk analysis if it were
believed that there was sufficient justification. In fact, there were Australian experts who were of the
view that quarantine measures applie d to some other fish species might not be appropriately

150 Paragraph 4.62.

restrictive.151 Nevertheless, in the absence of strong jus tification, Australia intended to await the
completion of an import risk analysis process before revising its import conditions for aquatic animals
and their products.
4.190 Import risk analyses were schedul ed for the following aquatic products:
- processed aquatic animal feeds;
- table fish;
- other aquatic animals for human consumption (some crustacean species and
miscellaneous invertebrates);
- uncanned heat-treated salmon;
- registered premises - standards and guide lines, including the use of live animals for
research;
- biologicals, vaccines, fish hormone preparations;
- aquatic microorganisms;
- fomites, fishing gear, wastes, packaging materials;
- processed aquatic animal products and extracts;
- brine shrimp;
- transhipment of live aquatic animal species;
- live aquatic animals for human consumption;
- live aquatic animals for aquaculture, breeding purposes;
- live aquatic animals for ornamental purposes (not fin fish);
- molluscs and bait and feed fish; and
- prawns and freshwater crayfish (commenced).
Australia stated that an import risk analysis process had commenced in 1997 for the importation of
ornamental fish, which had been identified as a high-priority area. Australia emphasised that, in a real
world, it was not possible to undertake numerous and complex risk assessments in parallel. They had
to be programmed and prioritised in the light of re sources, including specialist scientific expertise.
This was the situation in practice in most countries. In terms of aquatic issues, Australia was more
advanced than any other country, including Canada, in regard to working towards the achievement of
the objectives of Article 5.5.
4.191 Australia noted its rights under Article 5.7 to take provisional measures and had not excluded
that it might be necessary to do so in resp ect of the products and diseases which were under
examination, but Australia was also conscious of the objective of minimizing negative effects on trade
in non-salmonids as well as salmonids.
4.192 Quarantine measures for aquatic animals were being developed to reflect the same level of
protection as for terrestrial animals. Although some factors might be different, and the interaction
between host, pathogen and environment more complex, the same principles applied to the spread of
disease for aquatic animals as for terrestrial animals. The main differences between terrestrial and
aquatic animals was the longer history of observa tion, the intensity of the observation, and the
different state of knowledge of diseases and disease agents.
4.193 The Final Report identified the import requi rements for aquatic animals and their products
other than salmonids:
"All goods entering Australia are subject to quarantine. They may be inspected on
arrival and may be sampled and tested at the importer's expense regardless of whether
or not prior permission to import is required and granted.

151 Final Report, pp. 334-335.

"The specific policies applying to the im portation of aquatic animals (other than
salmonids), their products and related materials, are as follows:
- Live, freshwater, ornamental fish may be imported with prior written
approval. Approval is restricted to fish on Schedule 6 of the Wildlife
Protection (Regulation of Exports an d Imports) Act 1982 and there are pre-
entry and post-entry requirements including a minimum period of 14 days in
post-arrival quarantine premises.
- Live, marine, ornamental fish may be imported subject to examination on
arrival for species identification, clinical health and presence of other
materials of quarantine concern. Approval is restricted to fish on Schedule 6
of the Wildlife Protection (Regulation of Exports and Imports) Act 1982.
- Animals imported for scientific or display purposes must be held in premises
approved for the purpose under the Quarantine Act 1908. Permission must
also be obtained from DEST, under the Wildlife Protection (Regulation of
Exports and Imports) Act 1982 for the impor tation of fish species other than
those on Schedule 6 of that Act.
- Brine-shrimp eggs may be imported with prior written permission subject to
suitable processing, including surface chemical sterilisation and drying.
- Other live aquatic animals may be imported subject to risk assessment and
approval on a case by case basis. Permission must also be obtained from
DEST under the Wildlife Protection (Regul ation of Exports and Imports) Act
1982
- Meals derived from aquatic animals , for example fish and prawn meal,
require prior written permission for importation subject to suitable processing
of the product and inspection on arrival.
- Manufactured aquatic animal feeds require prior written permission for
importation subject to quarantine acceptance that ingredients meet quarantine
requirements and have been appropriate ly treated either before export or
before release from quarantine in Australia.
- Oysters in the full or half shell are prohibited from all sources, except oysters
in the half shell from New Zealand (prior permission is not required). Other
oysters in the full or half shell may be imported for scientific purposes with
prior written permission. The goods must be held in premises approved for
that purpose under the Quarantine Act 1908.
- Uncooked, freshwater crayfish product , subject to risk assessment and
approval on a case by case basis, requires prior written permission for
importation.
- Uncooked prawns (shrimp) not fit for human consumption , subject to risk
assessment and approval on a case by case basis, requires prior written
permission for importation.
- Other non-viable aquatic animal products , for example mussels, are allowed
entry subject to inspection and conf irmation of non-viability and freedom
from visible contamination.

- Clothes, footwear and used fishing gear that have had contact with fish or
fish farms overseas are subject to inspection on arrival and treatment if
required."
152 (emphasis added, emphasis in original removed)
4.194 Australia recalled its due process concerns in respect of heat-treated product (paragraph ).
Australia noted that heat-treated product had not been addressed in the risk assessment for the reason
that Canada had not sought a risk assessment on that product, which the experts advising the Panel
had stated to be a different product than that consid ered by the Final Report. An import risk analysis
was scheduled as part of the aquatic quarantine review . In Australia's view, Canada's claim in respect
of heat-treated product was an entirely different legal claim from allegations of differences between
live and bait/feed fish and salmon. It also raised significantly different scientific issues. Canada
could not claim that the factors pertaining to heat -treated salmon were the same as those pertaining to
live and bait fish, which formed the basis of Canada's legal claims.
4.195 Canada observed that in the case of EC - Hormones, the fact that the European Communities
had not done a risk assessment for either the hor mones at issue or for the veterinary drugs carbadox
and olaquindox did not prevent the Panel or the Appellate Body from comparing them and finding
evidence of an arbitrary or unjustifiable distinction in levels of protection in different situations.
Canada suggested that if Australia's position were accepted, Article 5.5 would be critically weakened
as it would mean that unless and until Australia did risk assessments for the other pathogen-hosting
products identified by Canada, no comparisons would be possible. The scenario would arise whereby
a Member might impose a highly trade restrictive measu re in one situation in respect of one product
but no measure whatsoever in respect of another co mparable product, and the Member would be able
to do so with impunity.
4.196 Australia noted that Canada's characterisation of th e legal issues in regard to the Appellate
Body report on EC - Hormones differed markedly from the language used by the Appellate Body.
4.197 Canada argued that there were circumstances where it was valid to compare the risk posed by
other aquatic animals or products hosting any or a ll of the same disease agents with those posed by
uncooked salmon, even in the absence of a risk assessment for those other aquatic animals or
products. This was so in respect of assessing the probability of exposure, transmission and
consequences of a given disease post-entry within a c ountry or region; and, it was also relevant in
respect of identifying inconsistencies in acceptable le vel of risk. Canada claimed that its argument
that for any given disease agent, the consequences of an introduction would be the same, regardless of
the imported product responsible was supported by Dr s. Wooldridge, Burmaster and Rodgers. In
particular, Dr. Wooldridge noted that:
"Briefly, in my opinion, the risks fr om salmonids and non-salmonids can be
compared by comparing available data pre- entry plus potential exposure pathways.
The decision on whether risk [sic] are acceptable or not depends on many factors but
if the risks are assessed as being (or are otherwise believed to be) at a similar level
then in my opinion they must be either equally acceptable or equally unacceptable
regardless of the source." (paragraph 6.104)
4.198 Canada conceded that if different products we re imported into different regions of a country,
the consequences could be different due to vari ability in the presence of susceptible hosts in the
regions. However, this qualification was not a function of different consequences arising from the
same disease agent in different products. It was a function of different re gional environments. The
same variation in consequences would exist if the same disease agent were imported into different
regions in the same product. Canada noted that there was no evidence that Australia had prohibited
into any particular region any of the non-salmonid pr oducts that Australia imported or allowed to be

152 Ibid., pp.5-6.

imported that were known to host many of the disease agents which Australia had cited as a basis for
excluding salmonid imports. Canada noted Dr. Wooldridge's statement to this effect:
"Once a given disease is established country-wide in an importing country, then in
my opinion the consequences from that point on will be the same whatever the
original imported source or manner of establishment." (paragraph 6.81)
4.199 Australia refuted Canada's claim that the conse quences of the disease being established in an
importing country would be the same, regardless of th e original imported source. Australia noted that
Dr. Wooldridge agreed with this proposition on ly insofar as a disease became established.
Nevertheless, Dr. Wooldridge had pointed out that regional variations might affect consequences in
the short to the medium term. In addition, Dr. R odgers had noted that there were degrees of severity
for some disease agents, and consequences could vary depending on the nature of the pathogen and
the genetic basis of the indigenous species. The fi nal destination of a particular consignment could
have an impact on potential disease establishment.
Arbitrary or unjustifiable differences in levels of protection
4.200 Canada noted that Australia had claimed that its appropriate level of protection was
conservative for certain pathogens of quarantine c oncern when these pathogens had not been found in
salmon. As a result it excluded uncooked salmon pr oduct, on the basis that it was possible that its
importation could lead to the establishment or spread of such pathogens. However, when Australia
had been faced with the knowledge that many of th e same pathogens were found in a wide array of
other aquatic animal products, Australia had abandoned its conservative approach.
4.201 Canada identified the following four difference s in levels of protection, which it considered to
be arbitrary or unjustifiable:
 (i) Canada noted that in the Final Report, Australia stated that: " A. salmonicida has a
wide range of hosts and would present one of the most serious threats to Australian fish". 153
Canada claimed that despite the fact that confirmed hosts of atypical Aeromonas salmonicida
included Pacific herring, haddock, cod, plaice and Japanese eel, Australia did not ban the
importation of fresh and frozen products of these species. However, uncooked Canadian
adult, wild, ocean-caught Pacific salmon, which was not know to host Aeromonas
salmonicida, was not allowed entry on the grounds that it was a potential (possible) host of,
inter alia, Aeromonas salmonicida . In addition, in the Final Report, Australia had conceded
that viral haemorrhagic septicaemia virus (VHS V), had not been identified in adult, wild
ocean-caught Pacific salmon. 154 Similarly, in regard to Inf ectious pancreatic necrosis virus
(IPNV), the Final Report stated that "[e]xtensive sampling of wild adult Pacific salmon in
British Columbia and Alaska failed to detect the presence of IPNV."
155 Yet despite the fact
that these two diseases had not been identified in adult, wild, ocean-caught Pacific salmon,
Australia banned the importation of uncooked sal mon, ostensibly to protect against both
VHSV and IPNV. On the other hand, Australia allowed imports of fresh, chilled and frozen
Pacific cod and herring (both of which the Fi nal Report admitted were natural hosts for
VHSV in North America
156, as well as fresh, chilled and frozen Atlantic cod, haddock and
European eel (which Canada contended were also included in the host range of VHSV).
Furthermore, Australia did not ban the importation of fresh, chilled and frozen products of the
species Atlantic herring, European eel, Japanese eel, Dover sole, or Cod, although IPNV had
been identified in these species. Canada dr ew attention to other disease agents, and
corresponding Australian imports, identified in Table 7.

153 Ibid., pp.38, 138-139.
154 Ibid., p.45.
155 Ibid., p.44.
156 Ibid., p.45.

 (ii) Canada further noted that Australia imported herring in whole, frozen form, for use as
bait fish in Australian waters. These were im ported uneviscerated and deposited directly into
the aquatic environment.157 It was logical that the likelihood of disease establishment arising
from imports of bait fish would be greater th an for uncooked salmonids because the events
sequence (see paragraph 4.138) that had to be completed for disease establishment to occur
through bait fish was greatly compressed. Whol e bait fish was by definition not eviscerated.
Canada claimed that herring was known to host Aeromonas salmonicida (atypical strain),
erythrocytic necrosis virus, infectious ha ematopoietic necrosis virus (IHNV) and viral
haemorrhagic septicaemia virus (VHSV).158
(iii) Canada argued that under the quarantin e regime regulating the importation of live
finfish, including ornamental freshwater and marine finfish, the Director of Quarantine had
permitted the importation into Australia of close to 59 million ornamental finfish between the
period 1988 through 1997. Ornamental fish (fresh and saltwater) were known to host the
disease agents Aeromonas salmonicida (atypical), Yersinia ruckeri , Edwardsiella tarda ,
Infectious pancreatic necrosis virus (IPNV) and Vibrio anguillarum . In addition, Canada
stressed that, unlike dead, evi scerated product, live ornamental finfish were known to have
introduced exotic diseases.
159 Referring to the 1995 Humphrey Report, Canada noted that the
disease risk in respect of introducing exotic disease for live fish or invertebrates was
particularly high. 160 Yet uncooked, Canadian adult, wild, ocean-caught Pacific salmon, not
known to host any of the above diseases, was not allowed for importation.
 (iv) Finally, Canada noted that EHNV was found in Victoria where salmonid populations
 of rainbow trout and Atlantic salmon were substantial, but ha d not been reported in Western
Australia where rainbow trout was commercially cultured and provided important sport
fishery. Yet the Final Report had made it clear that Australian State and Territory
governments had not placed any controls on th e movement of salmonid products from areas
where EHNV was found to areas where EHNV was e xotic. Given the potential for Australian
salmonids to introduce EHNV into aquacultured salmon, Australia had failed to explain the
differences in levels of protection it had established in respect of those products and uncooked
Canadian salmon.
4.202 In respect of both live fish and bait fish, Ca nada pointed out that Dr. Rodgers had noted that
the risks posed by live fish and bait fish imports we re probably at least as high or higher than for
uncooked salmon from Canada:
"The importation of several other groups would pose a potential risk of disease
introduction that would probably be at least as high, if not higher, than that posed by
the importation of uncooked salmon from Canada. These groups would include any
live ornamental fish, bait fish and trash fish for feeding aquaculture species ...."
(paragraph 6.97)
and,
"It is probably true to say that for a given disease agent, the likelihood of disease
establishment is higher for imports of whole, non-eviscerated bait fish and for live
fish than it is from imports of unc ooked salmon for human consumption."
(paragraph 6.100)

157 Report of the National Task Force, Table 3.8 : "Import usage within the commercial bait sector", p.24.
158 Final Report, p.45 (for VHSV).
159 J.S. Langdon, "Diseases of Introduced Australian Fish", Fish diseases: refresher course for
veterinarians, May 1988, p. 231.
160 Humphrey Report, p.87.

Dr. Winton had stated that there was a hierarchy of product risk, with live fish posing the greatest
risks, bait fish in the second place and dead, eviscera ted fish, ranked last of the three. Dr. Winton had
noted that it was quite clear that herring, imported as bait, was a major reservoir of VHS, yet Australia
imported large quantities of herring as bait.
4.203 In summary, Canada alleged in the first instance that as Australia had not banned the
importation of both dead non-salmonid finfish and live ornamental finfish, despite scientific evidence
that several of the 24 disease agents of concern to Australia occurred in these products, Australia had
chosen distinct levels of protecti on in different situations. In the second instance, Canada argued that
it was not possible to justify these distinction in the levels of protection that Australia had adopted in
different situations. This view was supported by Au stralia's own experts, in particular in the 1995
Humphrey Report, the 1995 BRS Report and Technical Paper No.3 (1992). 161 This latter paper
characterized the distinction whereby the Director of Quarantine prohibited the importation of fresh,
chilled and frozen salmonids but permitted the entry of live ornamental finfish, as an "arbitrary"
separation of aquacultural and recreational species (including ornamental species), which had "little, if
any, scientific basis."162 Hence, these distinctions were arbitrary and unjustifiable.
4.204 In respect of Canada's claim that Australia's alleged distinctions in the level of protection
adopted in different situations were arbitrary and unjustifiable, Australia argued that Canada had not,
in the first place, demonstrated that there were distin ctions in the levels of protection considered to be
appropriate in different situations. Australia st ressed that there could not be any presumption of
distinctions in the levels of protection solely on the basis of evidence of a difference in measures
applied to the same animal species or according to origin of a product. Nor could there be a
presumption of different levels of protection in circ umstances of a product hosting one or more of the
diseases in question. A comparison of measures applying to different fish, some of which might have
a disease in common, was not sufficient to demons trate that there existed identical or similar
conditions or arbitrary or unjustifiabl e distinctions in the levels of pr otection in different situations in
the sense of Articles 2.3 and 5.5.
4.205 Without prejudice to the above, Australia argued that if the Panel were to find to the contrary,
Canada had not put forward relevant evidence that such distinctions amounted to arbitrary or
unjustifiable discrimination. The burden of proof could not be satisfied by a mere assertion of a
claim, it had to be shown that the distinction wa s arbitrary and unjustifiable. This had been the
conclusion of the Appellate Body Report United States - Measures Affecting Import of Woven Wool
Shirts and Blouses from India .
163 The arguments were, furtherm ore, supported by the Appellate
Body's ruling in EC - Hormones .164 Nor could the evidentiary standard be met by inferences of
motive or intent. In accordance w ith the Appellate Body Report on EC - Hormones, the measure
needed to be examined in the c ontext of the architecture and structure of the measure. Australia
further noted that, in the context of the comments by the experts advising the Panel on a hierarchy of
risks, the experts had stated (paragraph 287 of the transcript) that risk assessments would be needed in
each case.
4.206 Australia claimed that several of the reports cited by Canada to substantiate its claim that the
measure was arbitrary and unjustifiable were cited out of context and in some cases were out of date.
In this regard, Canada had not taken into account the status of the reports it had cited. 165 None of the
reports cited had the status of an import risk asse ssment. The Humphrey Report explicitly noted the
privileged position of Australia in regard to " freedom from many serious salmonid pathogens or
strains thereof" and identified salmonids as a higher risk species. The Humphrey Report

161 Humphrey Report, p.120 (A-22); Nunn Report, p.34 (A-21); Technical Paper no.3, p.2 (A-19).
162 Technical Paper No. 3, p.2 (Present measures).
163 Op. cit., paragraph 4.24.
164 Op. cit., paras. 239 and 240.
165 Paragraphs 4.56-4.60

recommended minimum restrictions and that the im portation of all fish be permitted only on a case-
by-case basis.166 The BRS Report had argued along the same lines that a higher level of "surety from
exotic pathogens" was justified in regard to non-living salmonid product for human consumption in
"view of Australia's relative freedom from exotic disease". The BRS Report had recommended that
quarantine restrictions in excess of evisceration were justified and that quarantine restrictions on both
salmonid and non-salmonid aquatic animals had to be reviewed and bro ught into consistency. 167
Australia noted that the separation between recr eational and aquaculture species from other species,
including ornamental fish, had been made on environmental grounds and used in connection with
assessments made under the Wildlife Protection (Regul ation of Exports and Imports) Act with regard
to the inclusion of fish on Schedule 6. 168 The rationale had been that aquaculture and recreational
species would be attractive for release into the wild because of their aquaculture and recreational
attributes and could potentially form feral popula tions leading to environmental damage. This
approach was no longer practised and the new assessment procedure could be found in Appendix D of
the Report of the National Task Force (December 1996).
4.207 Furthermore, Australia observed that not all live ornamental fish imported into Australia
were capable or recognized as harbouring the disease agents that were the subject of the current
dispute. All live ornamental fish entering Australia were inspected on arrival to (i) ensure that they
were healthy, (ii) confirm the identification of th e species and (iii) ensure that no other materials or
issues of quarantine concern were present. 169 Even if a species of ornamental fish could carry a
disease agent, one could not automatically conclude that Australia's appropriate level of protection
had not been met. Further import risk analysis fo r the importation of bait and feed fish, and for the
importation of molluscs were planned for April 1998.
4.208 In terms of Canada's claims concerning EHNV, Australia noted that these had been addressed
in respect of Article 2.3 (see paragraphs 4.97, 4.99 and 4.102). Australia argued that the evidence
submitted by Canada did not relate to similar conditions or that the measure represented arbitrary or
unjustifiable discrimination. Canada's claims rested on the OIE status of EHNV as a notifiable
disease. As noted elsewhere, the classification and listing of diseases by the OIE was not evidence of
the severity of disease or of the comparability of risk of occurrence or consequences.
Disguised restriction on international trade
4.209 Canada argued that there were seven factors which demonstrated that the arbitrary or
unjustifiable distinctions in Australia 's levels of protection did in fact result in a disguised restriction
on international trade:
(i) Australia's failure to simply prohibit the importation of other products known to host
the same disease agents. In Canada's view this was not re flective merely of the magnitude of
the difference of the levels of protection or the fact that the measure in respect of salmon was
significantly more trade restrictive, rather, it we nt directly at Australia's purported basis for
the measure. While Australia was concerned about the potential presence of certain exotic
disease agents in Canadian salmon and therefor e required a ban on the product, Australia was
willing to permit the entry of exactly the same disease agents in other products, and even in
Canadian salmon that had been heat treated pursuant to the 1988 Conditions. Australia took
this position despite its admission in respect of non-salmonids that "the 'known' presence of

166 Humphrey Report, p.89, p.120.
167 BRS Report, pp.34-35.
168 Schedule 6, Wildlife Protection (Regulation of Exports & Imports) Act 1982, "Live animals and live
plants the import of which is not prohibited by paragraph 22 (b) and in relation to which section 9 apples", updated
7 May 1996.
169 Final Report, pp.5-6.

an agent with a particular host by itself is not an accurate indicator of the likelihood of disease
introduction, establishment or spread".
(ii) The circumstances surrounding the abrupt ch ange in conclusions from the May 1995
Draft Report to the Final Report . Following the release of the May 1995 Draft Report,
Tasmanian salmon producers lobbied against it in an effort to reverse the conclusion that
uncooked Canadian salmon should be permitted entry, and those conclusions had in fact been
reversed. The conclusion for the May 1995 Draft Report had been that for imports of head-
off, eviscerated salmon the risk of disease intr oduction was negligible. This was deemed to
be "acceptably low, having regard to the pot entially serious consequences of such an
event".170 Yet the Final Report concluded that not only would this not satisfy Australia's
appropriate level of protection, but that no imports of uncooked salmon would satisfy it. Only
heat treatment would. This conclusion had b een reached without an assessment of the risks
entailed by heat-treated product, in a docum ent which all three risk assessment experts
advising the Panel regarded as opaque and inadeq uate. Hence, the only reasonable inference
was that Australia was hiding the real reason fo r reversing its conclusions - to protect its
domestic salmon not from disease, but from import competition.
(iii) Australia excluded from the Final Report relevant information that was considered in
the May 1995 Report. Australia had argued, contrary to the conclusions of Drs. Wooldridge
and Rodgers, that the information excluded was not relevant to the decision-making
process.171 Australia had also stated that the water and waste disposal statistics from Sydney
and Melbourne did not address waste disposal in other regions of potentially higher risk such
as Tasmania. Yet, in fact, the May 1995 Draft Risk analysis had provided waste water
statistics for Hobart, Tasmania. In add ition, Australia offered no explanation why
conclusions regarding pathogen dilution rates based on the information in the May 1995 Draft
Report were not applicable to other potentia lly "higher risk" areas. The only convincing
explanation for why Australia excluded relevant da ta in the Final Report was that the data led
inexorably to the conclusion that it did not want to reach - the conclusion that had been
reached qualitatively in the May 1995 Draft Report - that the likelihood of disease
establishment by the pathways identified by Aust ralia were negligible. This conclusion was
supported by the quantitative assessment Dr. Vose had undertaken, using the same data which
had been available to Australia.
172
(iv) Absence of scientific basis for the measure (Canada's arguments in this regard are
contained in paragraphs 4.65-4.72 below).
(v) Australia's failure, despite professed c oncerns about the health of its salmonid
populations, to control the internal movement of EHNV hosts.
(vi) Australia's failure to specify the pathogens addressed by its measure. As Australia
had failed to assess the risks posed by pathogens identified in the hazard identification stage
of its risk assessment, Australia had no credib le basis for asserting that its measure addressed
the risks posed by particular pathogens.
(vii) Australia's inability to explain consisten tly or at all the appropriate level of
protection, that its measure aimed to achieve. This inferred that rather than its measure
being applied to achieve its appropriate le vel of protection, Australia was using its
"appropriate level of protection" as a shield for a trade-restrictive measure.

170 May 1995 Draft Report, p.223.
171 Paragraph 4.154.
172 "Quantitative analysis of the risk of establishment of Aeromonas salmonicida and Renibacterium
salmoniarum in Australia as a result of importing Canadian ocean-caught salmon", David Vose, Canada's Submission
of 18 December 1997 ("Vose Report").

4.210 Canada further argued that the reasoni ng of the Appellate Body in the dispute United States -
Standards for Reformulated and Conventional Gasoline , on the relationship between arbitrary or
unjustifiable distinctions in levels of protec tion and the resulting disguised restrictions on
international trade was equally applicab le to Article 5.5 of the SPS Agreement. 173 Hence, the
distinction in Australia's levels of protecti on for uncooked salmonids and non-salmonids, and for
uncooked salmonids and live ornamental fish was, in Canada's view, arbitrary and unjustifiable. The
resulting import ban on uncooked salmon was a restriction on international trade in the guise of a
sanitary measure.
4.211 Australia drew attention to its due process concer ns regarding Canada's claim that the
measure resulted in a disguised restriction on international trade (paragraph 4.12). Moreover, in
addition to the measures previously forming th e basis of Canada's legal claims, Canada had
introduced a new legal claim of inconsistency in regard to the purported differences between heat-
treated and other salmon (paragraph 4.16). Australia also argued that the evidentiary standard could
not be satisfied by a comparison of measures applyi ng to different fish. Nor could the evidentiary
standard be met by ascribing motive to actions. As stated by the Appellate Body in EC - Hormones, it
was the architecture and structure of a measure which needed to be addressed.
174
4.212 In regard to Canada's assertions under (ii) above, Australia noted, in reference to Canada's
arguments regarding the Appellate Body ruling in United States - Standards for Reformulated and
Conventional Gasoline , that the Appellate Body findings related to Article XX of GATT 1994 and
that the incidence of obligations in that regard ma y be somewhat different, given that Article XX of
GATT 1994 deals with conditions attached to an ex ceptional right, as compared to Articles 2.3 and
5.5 of the SPS Agreement, which deal with the cond itions to be attached to the grant of a basic WTO
right. In EC - Hormones, the Appellate Body had rejected the interpretation of Article 5 put forward
by Canada on the basis of the Appellate Body fi ndings in the reformulated gasoline case. Moreover,
it had stated that the three elements under Article 5.5 - (i) the adoption of appropriate level of
protection in different situations, (ii) arbitrary or un justifiable differences in these different situations
which (iii) resulted in discrimination or a disguise d restriction on international trade - were of a
cumulative nature; all had to be demonstrated and in particular both the second and the third element
had to be found, the second element alone would not suffice. 175 In this regard, Australia claimed that
Canada, in its submissions to the Panel, had equa ted the element of "discrimination or a disguised
restriction on international trade" with "arbitrar y and unjustifiable distinction". Canada had
furthermore incorrectly assumed that the Appellate Body interpretations of Article XX of GATT 1994
had a direct application to Article 5.5 of the SPS Agreement.
4.213 Furthermore, Australia argue d that Canada had not demonstrated that the draft import risk
analysis met Australia's appropriate level of protect ion. The Final Report did not conclude that heat
treatment was satisfactory, it stated:
"... it is recommended that uncooked salm on products should not be permitted entry
from Canada and the United States at the present time. Other issues related to
salmon, such as current policies for im porting heat-treated salmon, should be

173 WT/DS2/AB/R adopted on 29 April 1996, p.25. "We cons ider that "disguised restriction", whatever else
it covers, may properly be read as embracing restrictions amounting to arbitrary or unjustifiable discrimination in
international trade taken under the guise of a measure formally within the terms of an exception listed in Article XX.
Put in a somewhat different manner, the kinds of considerations pertinent in deciding whether the application of a
particular measure amounts to "arbitrary or unjustifiable discrimination", may also be taken into account in
determining the presence of a "disguised restriction" on international trade. The fundamental theme is to be found in
the purpose and object of avoiding abuse or illegitimate use of the exceptions to substantive rules available in
Article XX."
174 Op. cit., para. 246.
175 Op. cit., paras. 214-215.

considered in the light of priorities recommended by the National Task Force on
Imported Fish and Fish Products."176
Australia explained that, in regard to salmon, the measures pre-dated the entry into force of the SPS
Agreement. Australia had undertaken a risk assess ment on Pacific salmon and on the basis of that
risk assessment had decided to maintain quarantine restrictions on imported salmon. No Member had
the capacity to undertake concurrent risk assessments on all salmonids, let alone all aquatic products.
Australia was undertaking a structured program of risk assessments on a range of aquatic animal
products. This was relevant to the architecture and structure of Australia's measures.
4.214 Australia contended that Canada had misr epresented a number of statements made by
Australia. The seven points listed by Canada were not facts, but assertions and had previously been
addressed by Australia. In particular, Australia argued that:
(i) Canada's claims reiterated the same claims in regard to different levels of protection
and arbitrary and unjustifiable differences. Au stralia's arguments in regard to these matters
expressed in paragraphs 4.185-4.189 and paragraphs 4.204-4.207 were valid here.
(ii) Canada's arguments did not go beyond an ascription of motive which was not relevant
to the architecture and structure of the Article 5.5 obligation. Furthermore, the assertion was
not borne out by the empirical evidence submitte d by Australia in rebuttal, including in
relation to the status of the draft risk analysis.
(iii) Australia had already explained the reasons for the differences in content between the
draft report and the Final Report, as well as the relationship between the reports, which could
not be viewed as separate and distinct exercises. Canada's assertion was an attempt to ascribe
motive. Australia had not claimed that th e difference between the draft and final
recommendations was because of new scientific information. The Final Report had
reappraised scientific information and the measures that would be required to meet Australia's
appropriate level of protection, as well as factoring in new information.
(iv) In regard to the scientific basis for th e measure, the Final Report fully evaluated all
scientific data and the measure was based on the Fi nal Report. Canada's arguments relate to
scientific views (not all shared) about acceptable levels of protection. Australia explained
that it did not require conclusive scientific eviden ce that an event would not occur, but that
there was sufficient scientific evidence on whic h to base its judgment of the likelihood of
occurrence. Canada had not disputed Australia's scientific evidence.
(v) In regard to EHNV, Canada's argum ents had no legal basis and were a
misrepresentation of Australia's evidence in re gard to EHNV (addressed in paragraphs 4.97,
4.99 and 4.102). Evidence of the existence of a non-exotic disease in domestic salmonids did
not constitute evidence of a situation identical or similar to evidence of a large number of
exotic diseases in imported salmonids; evidence of a different measure did not constitute
evidence of arbitrary or unjustifiable distincti ons and there was no evidence of a disguised
restriction on international trade.
(vi) As was clear in the Final Report, Au stralia had specified the pathogens addressed.
(vii) Australia had consistently explained its a ppropriate level of protection. Canada could
not provide evidence to the contrary.

176 Final Report, p.xi.

4.215 Australia argued that Canada's claims rested on a premise that the test of legal consistency
was one of changes between the draft and Final Reports . In particular, most of the seven factors cited
by Canada were simply attempts to infer motives. There was a fundamental difference between an
attempt to demonstrate a disguised restriction on international trade through inferring motive and a
presentation of evidence based on an analysis of the architecture and structure of Australia's measures.
Canada had failed to do this, but w as requesting the Panel to undertake a de novo review. As such,
Canada ignored due deference and the standard of re view referred to in the Appellate Body Report on
EC - Hormones.177
4.216 Australia also argued that Canada had not met its burden of proof and had not produced any
evidence that Australia's measures resulted in a disgui sed restriction on international trade. Australia
was a significant importer of aquatic animal products, including smoked and canned salmon from
Canada. Many of these products competed directly with domestic products in the Australian market
place. Australia was, in fact, a net importer of fish products. Australia was also a significant
producer and exporter of non-salmonid aquatic products . On the basis of Canada's interpretation of
Article 5.5 obligations, consistenc y could only be assured by removal of the restrictions on salmon,
whatever the basis for such measu re, or by introducing trade-rest rictive measures on other aquatic
animal products, whatever the b asis for sanitary protection in the case of those products. The latter
approach would risk inconsistenc y with other provisions of the SPS Agreement, while the former
would deny Australia the right to protect its salmonid populations against an assessed risk.
 (l) Article 5.6
Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve t he appropriate
level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than requ ired to achieve
their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.3
Footnote 3:
For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure , reasonably
available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanit ary protection and
is significantly less restrictive to trade.
SPS Agreement, Article 5.6 and footnote
4.217 Canada argued that even if the Panel were to c onclude that Australia had determined the
appropriate level of sanitary protection to be achieve d by its measure and that the distinction in the
levels of sanitary protection considered to be approp riate in different situations was not arbitrary or
unjustified, Australia's measure was nevertheless mo re trade-restrictive than required to achieve its
appropriate level of protection. The footnote to Ar ticle 5.6 made it clear that a determination of a
measure's consistency with Article 5.6 entailed the assessment of that measure in relation to other
potential measures which would also achieve the sa me appropriate level of protection that the
Member could reasonably adopt. Since Austra lia prohibited the importation of uncooked salmon
while permitting the importation of uncooked non-salmonids, includi ng fish for human consumption
and whole uneviscerated bait fish, Australia's sanita ry measures for non-salmonids were significantly
less trade restrictive. Yet, according to Austra lia, they achieved the same appropriate level of
protection. Additionally, Australia permitted the en try of live ornamental fish which, according to
Australia's own experts, posed the highest risk of causing the establishment of serious aquatic animal
diseases. Thus, in the case of both non-salmonids a nd live fish, the measures maintained by Australia
against the risk of the establishment of exotic diseas es were significantly less trade restrictive than the
prohibition on the importation of uncooked salmon.
4.218 Canada noted that it was necessary to know wh at Australia's level of protection was in order
to identify alternatives that would meet it. As a matter of principle and logic, a Member could not
evade its obligations under Article 5.6 (or any ot her provision of the SPS Agreement) simply by

177 Op. cit., paras. 244-245.

failing to determine or disclose its appropriate le vel of protection. If it could be inferred that
Australia's appropriate level of protection was " zero risk", there might be no measure less trade
restrictive than the current measure which achieved th at level. Australia had argued that there was no
scientific evidence that evisceration would eliminate the risk of entry, establishment or spread of
disease. But, as Canada had shown, there was no scientific evidence that heat treatment would
eliminate this risk either. Thus, if the Panel we re to find that Australi a's appropriate level of
protection were zero risk, Canada submitted that the Panel would have to consider whether the
measure currently imposed by Australia actually met its appropriate level of protection.
4.219 Should, on the other hand, Australia's appr opriate level of protec tion be inferred to be
something other than zero risk, Canada argued that a complete prohibition on uncooked salmon
imports was the most trade restrictive measure avai lable to Australia. The conclusions in the Final
Report demonstrated that Australia had maintained this prohibition despite having been unable to
distinguish the level of risk presented by other less trade restrictive options. 178 The fact that Australia
had not been able to distinguish among the levels of risk in the import options, including the measure
which it had chosen in order to achieve its acceptable level of risk, logically meant that each of the
measures achieved Australia's acceptable level of risk . Australia had noted that the Final Report had
referred to a number of options as "lower risk op tions" of which only Option 3 had been identified. 179
Thus, according to Canada, there were several options for fresh, chilled or frozen salmon that
represented the bottom of the import risk spectrum and therefore, by definition, had to be capable of
achieving Australia's acceptable level of protection.
4.220 Although Australia insisted that it was "readily apparent" that there w as a difference in the
level of risk between the importation of eviscerated fish and that of maintaining restrictions on
uncooked salmon, Canada argued that for many of the pathogens there was no evidence of the
effectiveness of heat treatment at the lower te mperature ranges allowed under Australia's current
restrictions. To the contrary, by providing the conditions for certain of the pathogens at issue to
flourish, heat treatment might actually increase the risk for certain of the pathogens identified as being
of concern. Although Australia claimed to have assessed the risks entailed by the four less trade
restrictive options, Australia had acknowledged that the Final Report did not cover heat-treated
product. Therefore, it could not possibly have compared the risk of the four less trade-restrictive
options with the risk entailed in its current measure, and it could not claim that the current measure
achieved its appropriate level of protection. Hence, it was not "readily apparent" that there was a
difference in the level of risk between the current restrictions and evisceration. There was no basis in
the Final Report for drawing such a conclusion. As Australia had decided that one option achieved its
appropriate level of protection, it necessarily follo wed that the other options would also achieve
Australia's appropriate level of protection. All of the four other options identified in the Final
Report
180 were significantly less trade restrictive th an the heat treatment requirement and were
economically and technically achievable. Australia had therefore violated Article 5.6.
4.221 Australia argued that Article 5.6 obligations could not be determined on the basis of views of
appropriate methodology for risk assessments. No r could the obligations be determined by an
examination of different measures in force between aquatic products. Austra lia referred to its due
process concerns in regard to Canada's claims about heat-treated product (see paragraph 4.8).
Australia had not taken the most trade restrictive measure possible for the pr otection of salmonid life
and health, as evidenced by ongoing significant impor ts of salmon products. Measures in respect of
heat-treated product (which the experts advising the Panel had characterised as a product different
from uncooked salmon) were significantly less trade r estrictive than a total ban on salmon imports.
As documented in the Final Report, Australia had evaluated other potential measures which might be

178 Final Report, p.62. pp.69-70.
179 Ibid., p.ix-x (last two paragraphs on page ix). Australia noted in its first submission that on page ix of the
Final Report "lowest" was an editorial error, and should read "lower".
180 Ibid., p.69.

less trade restrictive, but had determined as pa rt of a risk assessment that there was no other
significantly less trade restrictive measure reasonabl y available to it that achieved the appropriate
level of protection for salmonids. Australia also noted that heat-treated product was traded in
eviscerated form, hence disease risk factors could be different.
4.222 Australia noted that the provision in Article 5.6 was an elaboration of the provisions of the
basic rights in Article 2.1 that "Members have the right to take sanitary ... measures necessary for the
protection of ... animal or plant life or health ... " a nd the basic obligation in Article 2.2 in regard to
"only to the extent necessary ...". The meaning of the term "necessary" could not be fully interpreted
with regard to Article XX of GATT 1994, nor with re gard to the jurisprudence of Article XX, as that
article covered exceptional rights, not basic rights. The term used in the footnote to Article 5.6
"significantly less restrictive to trade" was not the same as "least trade restrictive". Australia argued
that through the risk assessment process, it had been established that there was no other measure
reasonably available to Australia in regard to th e risk and consequences of entry, establishment or
spread of the disease agents of concern in Pacific salmon products subject to the Final Report, taking
into account technical and economic feasibility, that would achieve the appropriate level of protection
and which would be significantly less restrictive to tr ade. In other words, th e measure was necessary.
In this context, Australia referred to its arguments in regard to Article 2.2.
4.223 Australia argued that Canada had not come forward with any evidence that would
demonstrate that there were significantly less trade restrictive measures available on uncooked salmon
which would achieve the appropriate level of protec tion. Canada's assertion that different measures
were applied between live fish and dead uncooked fi sh did not constitute evid ence that there was an
alternative and significantly less trade restrictiv e measure available which was feasible in both
technical and economic terms and which was capable of achieving the appropriate level of protection.
A generalization that uneviscerated bait fish or live fi sh posed a greater threat than eviscerated fish of
a different species could not be substantiated withou t reference to a risk analysis including detailed
scientific risk assessment, as stated by the experts advising the Panel. It had to be demonstrated that
there were comparable situations in a scientific, econom ic and biological sense in regard to the risk of
entry, establishment or spread of the totality of diseases at issue, together with comparable
consequences, and that the same measure would be feasible in an economic and technical sense.
Canada's claim that Australia's requirements on heat -treated product were not sufficiently restrictive
to achieve Australia's level of protection did not represent evidence that a significantly less trade
restrictive measure was available to achieve Australi a's appropriate level of protection in relation to
uncooked salmon. Canada had not put forward documented evidence that the other options identified
in the Final Report could achieve Australia's level of protection. Australia drew attention to the
detailed evaluation of options in the Final Report (see paragraphs 4.164-4.165).
4.224 In regard to other aquatic products, Austra lia observed that it would have to conduct a risk
assessment in order to estab lish what measures to adopt vis-à-vis these other products. The need for
this had been confirmed by the experts advising the Panel. Risk assessments for other aquatic
products were scheduled or underway in order to de termine the appropriate measure for the particular
circumstances, including ornamental fish. Following the risk assessments, the measures to be applied
might be more or less trade restrictive than tho se applying to uncooked salmon, however, that did not
mean that they were significantly more or less trad e restrictive within the meaning and intent of the
SPS Agreement, including Article 5.6. Pendi ng quarantine reviews on other aquatic products,
Australia was not in the position to determine whet her the measures that applied to uncooked salmon
would or would not achieve the appr opriate level of protection in rela tion to animal health and life
risks.181
4.225 In regard to the options identified in the Final Report, Australia noted that for each option
there was a distinct level of protection and it ha d been established that only the option chosen would

181 Ibid., pp. 334-335.

achieve the appropriate level of pr otection. Although the Final Report stated that " [t]he difference in
level of risk between each option is incremental and cannot be quantified" 182, it had clearly stated that
Option 1 represented the lowest level of risk (high est degree of security) of any option considered. 183
Options 2, 3 and 4 were not ranked other than that these fell between Option 1 (lowest risk) and
Option 5 (highest risk).184
4.226 Australia maintained that it had applied th e only measure available to it that was consistent
with its appropriate level of protection - it was not the most trade restric tive measure as was evident
from imports of heat-treated salmonids. Australia argued that even if the measures on salmon were
the most trade restrictive possible, Canada would need to demonstrate that there was a significantly
less trade restrictive measure reasonably available wh ich would protect animal life and health within
Australia in accordance with the level of protection deemed to be appropriate. Moreover, even the
most trade-restrictive measure available did not consti tute evidence of inconsistency with Article 5.6.
Canada had not met its burden of proof in regard to its claims that the measure was more trade
restrictive than required in the meaning of Article 5.6.
 4. Articles XI and XX of GATT 1994
4.227 Canada argued that Australia's measure was a quantitative restriction in the meaning of
paragraph 1 of Article XI of GATT 1994, which provided that:
"No prohibitions or restrictions other than duties, taxes or other charges, whether
made effective through quotas, import or export licences or other measures, shall be
instituted or maintained by any contracting party on the importation of any product of
the territory of any other contracting party or on the exportation or sale for export of
any product destined for the territory of any other contracting party."
185
In Canada's view the measure was a restriction on the importation into Australia of fresh, chilled or
frozen salmon from Canada and could not be characte rized as a "duty, tax or other charges" which
would exempt it from paragraph 1 of Article XI. Fu rthermore, the measure did not qualify for any of
the exemptions within the meaning of paragraph 2 of Article XI. The burden of proof that one or
more of the exceptions applied was Australia's.
4.228 If the Panel were to find that the measure at issue was the 1996 Decision, Canada argued that
measure would be limited to wild, ocean-caught Paci fic salmonids. However, Australia had admitted
that its prohibition extended to all uncooked salmon as it had stated in the Final Report that
"commercial quantities of fresh, frozen and chille d salmon product are not permitted entry into
Australia".186 If the measure were the December 1996 Deci sion, then Australia would be maintaining
a prohibition on farmed Pacific and Atlantic salmon without a measure. As the prohibition in respect
of farmed salmon would be maintained without th e benefit of a measure, the SPS Agreement, which
applies only to "sanitary or phytosanitary measures" , would not apply. Thus, with respect to these
products, the prohibition was a violation of Artic le XI:1 of GATT 1994 to which none of the
exceptions in Article XI:2 applied.
4.229 In respect of Article XI, Australia contended that the measure cited by Canada did not
constitute an import prohibition within the meaning of paragraph 1 of Article XI. Australia argued
that QP86A did not prohibit the importation of uncooked salmon from Canada; it allowed imports

182 Ibid., p.62.
183 Ibid., pp. 62 and 69.
184 Australia noted in its first submission that on page ix of the Final Report "lowest" was an editorial error,
and should read "lower".
185 GATT 1994, Article XI paragraph 1.
186 Final Report, p.4.

subject to permit, provided by the Director of Qu arantine within the scope of the delegated legal
authority accorded under QP86A.
4.230 Nonetheless, with respect to both Article XI and Article XX(b) of GATT 1994, Australia
argued that in accordance with Article 2.4 of the SPS Agreement, a sanitary measure which
conformed to the relevant provisions of the SPS Agreement was presumed to be in accordance with
obligations under GATT 1994 which related to the u se of sanitary measures. Furthermore, Canada
had not contested that the measure was within the scope of the SPS Agreement. As Canada had not
established inconsistency with Articles 2, 3 or 5 of the SPS Agreement, there had to be a presumption
that the measure was in conformity with Austra lia's obligations under Articles XI and XX(b) of
GATT 1994. Canada therefore bore the burden of proof to rebut the presumption of conformity.
4.231 Canada stated that Australia's measure could not be justified under any of the exceptions
under Article XX and that Australia bore the burden of justifying under Article XX its violation of
Article XI. Canada recalled that GATT practice di ctated that the party invoking Article XX bore the
burden of proving it. Furthermore, GATT and WTO Panels had made it clear that a measure could be
considered necessary "only if there were no alte rnative measure consistent with the General
Agreement, or less inconsistent with it, which [t he member] could reasonably be expected to employ
to achieve its ... policy objectives".
187 Since Canada had already demonstrated that Australia had
adopted alternative measures (heat treatment) with respect to the importation of pathogens occurring
in salmon and had nevertheless been able to achieve its policy objective of protecting animal life and
health, Australia's measure had no justification in th e "necessity test", set out in Article XX(b). As
Australia had failed to meet this "necessity test ", it was not necessary to examine the chapeau of
Article XX which proscribed the application of measures which "in a manner which would constitute
a means of arbitrary or unjustifiable restriction on international trade".
 5. Article XXIII of GATT 1994
4.232 Canada maintained that the inconsistency of Australia's measure with GATT 1994 and the
SPS Agreement established a prima facie case of nullification or impairment pursuant to GATT
Article XXIII:1(a) and Article 3.8 of the DSU. If th e Panel were to find that Australia's measure was
not inconsistent with the cited Agreements, Canada requested the Panel to find that the measure
otherwise nullified or impaired benefits accruing to Canada under Article XXIII:1(b). Canada noted
that in its request for consultations in 1994 unde r GATT, the Request for Consultations under the
WTO, and the Request for the Establishment of a Panel 188, Canada had raised non-violation claims
under Article XXIII:1(b) of GATT 1994. Moreover, Article XXIII:1(b) applied to both GATT 1994
and the SPS Agreement 189, and Canada had made it clear in its requests for consultations and for the
establishment of a panel that it considered that benefits accruing to it pursuant to the WTO Agreement
were being nullified or impaired as a result of Austra lia's application of its measure. Canada noted
that Article 26.1 of the DSU made it clear that complaints concerning non-violation nullification or
impairment could be made within the framework of the WTO Agreement.
4.233 Canada argued that the benefits that it reasonably could have expected to accrue as a
consequence of Australia's tariff concessions had been nullified or impaired in that: (i) fresh, chilled
and frozen salmon were subject to tariff concessions originally made by Australia in 1947, before the
introduction of Australia's measure; (ii) as a con sequence of Australia's measure, Canada's uncooked
salmon had been denied access to Australia's market; and, (iii) the tariff concessions had been carried
forward in successive tariff negotiations, such that Canada was entitled to rely on the reasonable

187 Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes , 7 November 1990, BISD
37S/200, para. 75; United States - Restrictions on Imports of Tuna , circulated 3 September 1991, BISD 39S/155,
para. 5.28; United States - Standards for Reformulated and Conventional Gasoline , Panel Report, adopted 20 May
1996, WT/DS2/9, paras. 6.25-6.28.
188 GATT Doc. DS48/1, WT/DS18/1 and WT/DS18/2, respectively.
189 Article 11.1 of the SPS Agreement.

expectations it had in 1947 at the time of negotia tion of the original tariff concessions. Canadian
salmon exporters could reasonably have expected to export significant quantities of fresh and frozen
salmon to Australia, commensurate with Canada's increased export potential for this product and with
growing demand in Australia. Moreover, while the measure had denied Canadian exporters access to
Australia's growing market for fresh, chilled and fr ozen salmon, it had at the same time enabled
domestic producers to benefit from higher domestic prices.
4.234 Australia argued that Canada's claims in regard to nullification and impairment were not
within the Panel's terms of reference as a claim of non-violation had not been raised in consultations
and was not cited in Canada's request for a Panel. Canada's request for the establishment of a Panel
identified GATT 1994 and SPS Articles on which it was seeking findings by the Panel, although it did
not specify provisions of those articles. Canada did not identify Article XXIII:1(b) of GATT 1994 as
a basis for its legal claims. Nor did it identify Article 26 of the DSU. No reference was made to
Article II of GATT 1994 as a relevant provision. Australia further contended that the 1994
consultations, which were held unde r the GATT dispute settlement rules, were not relevant to the
terms of reference of the Panel constituted unde r Article 6 of the DSU. The relevant WTO
consultations were those which took place in 1995. Canada's request for a panel did not cite the 1994
GATT consultation and did not incorporate matters discussed at those consultations. The basis for the
current panel was Canada's request set out in WT/DS18/2. Australia noted that in India - Patent
Protection for Pharamceutical and Agricultural Chemical Products , the Appellate Body had
reaffirmed that a complainant had to identify the measures and legal basis of its claims in a request for
a Panel, in accordance with Article 6.2 of the DSU. The Panel, under the terms of Article 7.2 of the
DSU, was only required to address the relevant pr ovisions in any covered agreement or agreements
cited by the parties to the dispute. Canada had not previously cited non-violation claims. Nor had
Canada fulfilled the requirement set out in Article 6.2 of the DSU to identify the specific measure at
issue and to provide a brief summary of the legal basis of the complaint.
4.235 Australia noted that Canada's claims of the application of the doctrine of "reasonable
expectations" were limited to the citation of GATT jurisprudence in footnotes in its submissions.
Australia noted that it was clear that claims of "r easonable expectations" were valid in the context of
non-violation claims relating to the introduction of subsidies subsequent to the negotiation of a GATT
bound tariff concession. However, Canada had not co me forward with any evidence in the context of
the application of a sanitary measure, including in th e context of the application of a sanitary measure
as a basic right under the SPS Agreement. Canada's cl aims, if accepted, could become an obstacle to
the protection of life and health and might effectively prevent Members from exercising a basic WTO
right conferred under the SPS Agreement. Any su ch construction would upset the balance of rights
and obligations as practised by Members and woul d undermine the attainment of WTO objectives
expressed in the preamble to the Marrakesh Agreem ent Establishing the WTO, including in regard to
the objective of protecting and preserving the environment.
4.236 Without prejudice to the above, Australia main tained that if the Panel were to find that
Canada's complaint in this regard fell within th e scope of its terms of reference, Canada had
nonetheless not satisfied its legal and evidentiary burden of proof in regard to claims of non-violation
nullification and impairment in accordance with Article 26.1(a) of the DSU. Australia stated that, as a
matter of fact, at the time of negotiation of the original tariff concession, the Quarantine Act of 1908
was in place. The Act made it clear that entry into Australia would be subject to quarantine
conditions. The relevant legislative provisions rema ined unchanged. Hence, it was a measure that
could have been reasonably anticipated by Canada at the time of the initial tariff bindings.
Furthermore, in regard to the rights accorded under the SPS Agreement in 1995, it was within
Canada's reasonable expectations that the identifi cation of a number of disease agents exotic to
Australia could affect access to Australia and that Australia would have recourse to sanitary measures
in the exercise of its basic WTO rights which might have affected international trade within the
meaning of Article 1 of the SPS Agreement.

V. SUMMARY OF THIRD PARTY SUBMISSIONS
European Communities
Burden of proof - Articles 3.3 and 5
5.1 The European Communities argue d Article 3.3 was not an "exception" to Article 3.1. The
SPS Agreement was based on the recognition that Me mbers had the right to choose their appropriate
level of protection. Although Article 3.3 laid dow n specific conditions governing the exercise of that
right in cases where an international standard existe d, this did not change the nature of Members’
rights to choose their own level of protection into an "exceptional" right. Three possible options were
available to Members when international standards ex isted. Those were to take measures which were
(i) based on the relevant standard (Article 3.1); (ii) which conformed to the standard (Article 3.2); or,
(iii) which resulted in a higher level of protectio n (Article 3.3). The SPS Agreement encouraged
Members to adopt measures which "conformed" to ex isting international standards by providing that
such measures would be "deemed" to be "necessar y" (in the sense of Article 2.2 of the SPS
Agreement) and "presumed to be consistent w ith" the remainder of the SPS Agreement and with
GATT. But even this presumption could not be re butted by a complaining Member. From this, it
could not be inferred that a reverse presumption (or negative inference) applied in those cases where a
Member chose to depart from the in ternational standard in order to set a higher level of protection.
The three options were of equal standing and no one could be qualified as an exception to the others.
The SPS Agreement clearly distinguished between measures which were based on international
standards (Articles 3.1 and 3.3) and those which conformed to such standards (Articles 2.4 and 3.2).
The complaining party had to bear the burden of showing that the measure of another Member was
not based on the international standards, was not based on scientific principles and was maintained
without sufficient scientific evidence (Article 2.2).
5.2 The European Communities emphasized that th e right to choose a higher level of sanitary
protection was explicitly provided for in the SPS Agreement (6th preambular paragraph, Annex A
paragraph 5, and Articles 2, 3 and 4.1). A sovere ign right could not be undermined by technical and
procedural requirements, like the burden of proof , especially in cases where there was scientific
uncertainty. Issues of health were so fundamental to the democratic system of government, that
sanitary measures had to be given the benefit of conformity with the SPS Agreement until the
complaining Member had succeeded in establishing beyond doubt and on the basis of the latest
scientific information available that a sanitary measure was not based at all on scientific principles, in
the sense of Article 2.2.
5.3 In the view of the European Communities, "burden of proof" was an ambiguous term. It was
essential to distinguish between the following concep ts: (i) standard of proof; (ii) burden of
persuasion; (iii) minimally suffi cient evidence; and, (iv) burd en of producing evidence. These
concepts applied to very different aspects of fact-f inding and responded to ve ry different policies.
Initially, a complaining party had to "present evidence and argument sufficient to establish a
presumption" that a Member had acted incons istently with its obligations under the SPS
Agreement.190 Evidence had to be produced (i) that wa s minimally sufficient to support its requested
finding and (ii) that would be sufficient to persuade the panel that what was claimed was true if no
counter-evidence were to be produced. A prima facie case had, therefore, to be of sufficient weight to
persuade the panel and of suffici ent quality to pass appellate review for reasonableness. Once a
complaining party had produced such compelling ev idence, the Member against whom the complaint
was being brought faced the practical reality that e ither it had to produce convincing rebuttal evidence
or it would be likely to suffer adverse findings. It was misleading, however, to speak of any "shift" in
the "burden of proof" in such a case. The burde ns of production and persuasion on any issue essential

190 Appellate Body Report on United States - Measures Affecting Imports of Woven Wool Shirts and Blouses
from India, WT/DS33/AB/R, p.13.

to proving a violation had to be borne throughout the process by the complaining party. The fact that
in the dynamics of the proof process there might come a point when the defending party had to
produce convincing evidence or lose did not amount to an additional rule of law that "shifted" those
burdens. The European Communities noted that the argument on burden of proof they proposed
found clear support also in the almost identical pr ovisions of the NAFTA Agreement on sanitary and
phytosanitary measures.
The Panel’s role in reviewing the scientific judgements made by Members
5.4 The European Communities argued that the Panel had to decide whether the Australian
measure was based on a risk assessment as appropriate to the circumstances (Article 5.1). The Panel
had also to judge whether the Australian measu re was based on scientific principles and was
maintained with sufficient scientif ic evidence (Article 2.2), as well as whether there was scientific
justification for departing from existing international standards (Article 3.3).
5.5 The Panel could not conduct its own risk asse ssment, nor could the Panel substitute its own
scientific judgement or that of individual scientists or experts chosen by it for that of the Member
applying an SPS measure. Panels had no authority nor competence to evaluate the weight of scientific
evidence used by the government of a Member ap plying an SPS measure. A panel’s mandate, in
considering the evidence invoked by a Member main taining an SPS measure, was not to determine
whether it agreed that such evidence constituted best evidence available but merely to determine
whether that evidence had the mi nimum external attributes of scientific inquiry and provided a
sufficient basis for the Member’s own determinations about the risk.
5.6 It followed that if in a particular case the "w eight" of available evidence indicated that there
was no risk of spread of a certain disease, but anot her part of available scientific evidence indicated
that there was such a risk, the gove rnment of the Member concerned would still be entitled, under the
SPS Agreement, to take a precautionary or preventive approach and base its measure on the latter part
of the available scientific evidence.
5.7 The European Communities disagreed with Ca nada's claim that a "risk assessment" could not
satisfy the obligation imposed by Article 5.1 of the SPS Agreement, unless it estimated the
"probability" of a risk rather than its mere "possi bility". This implied that Members were required to
make a quantitative assessment of the risk, but the u se of the term "likelihood" in the definition of
"risk assessment" could not be taken to mean that a risk assessment had necessarily to include a
quantitative estimate of the risk level. The SPS Agreement qualified the obligation to conduct a risk
assessment with the phrase "as appropriate to the circ umstances" in Article 5.1. This was an express
recognition that what was an appropriate risk ass essment might differ from case to case. In many
cases, a quantitative assessment of the risk might not be appropriate or indeed feasible at all.
5.8 The European Communities noted that a Member was free under the SPS Agreement to
refuse to take any risk, no matter how small its possi bility of occurrence might be and irrespective of
whether it was considered to be acceptable to othe r Members. With its submission Canada did not
appear to argue that there was no risk at all, but simply that its probability of occurrence was very
very small. However, a Member was free under th e SPS Agreement to refuse to take any risk, no
matter how small its possibility of occurrence ma y be and irrespective of whether it had been
considered to be acceptable to other WTO Members or to international organizations such as the OIE.
Canada appeared also to forget that, in basing their measures on a risk assessment, Members could
take into account a wide range of reports, studies , publications and individual scientific advice.
Because the "information-base" for the analysis of the risk was necessarily very wide and constantly
being updated as science progressed, it was not surprisi ng to find sometimes contradictory scientific
statements. However, this could not prevent a Member from choosing to base its evaluation of the
possibility of the harm arising on the part of availa ble scientific evidence which in its view appeared
to be more reasonable.

Article 5.5
5.9 The European Communities agreed with Australia that the text of Article 5.5 did not impose
an obligation lending itself to immediate implemen tation. Article 5.5 required a comparison of the
levels of protection applied by a Member in different situations and not of the measures adopted to
enforce those levels of protection. Instead, Canada had compared the measure applied by Australia to
different types of fish and then mistakenly assu med that to different measures must necessarily
correspond different levels of protection. In or der to achieve a given level of protection it was
necessary to apply different measures depending on the circumstances of each situation. More
restrictive measures were not necessarily equivalent to a higher level of protection and, conversely,
less restrictive measures were not necessarily indicativ e of a lower level of protection. Because there
could often be a wide range of sanitary measures ava ilable to achieve the same level of protection, the
measures employed by Members could differ significan tly even where they were designed to achieve
the same level of protection. Th is was, in the EC view, not to be dealt with under Article 5.5 as
Canada had done, but rather, under the provisions of equivalency of the SPS Agreement (Article 4).
5.10 The European Communities further argued that a distinction in the levels of protection
applied in different "situations" c ould not be deemed to be "arbitrar y" or "unjustified" nor lead to
"discrimination" or to a "disguised restriction of international trade" unless those situations were
clearly comparable. The mere fact that a disease ag ent was found in two different species of fish was
not sufficient to render "comparable" for the purpo ses of Article 5.5 the level of protection and the
sanitary measure applied by Australia to those sp ecies, because there might be other factors which
could make the two situations not comparable. For instance, the sever ity of the effects of a disease
agent might vary from one type of fish to another, thus justifying both a different level of protection
and different sanitary measures. Consistency coul d not be seen as a static concept, but rather a
process that would take years to achieve. The guidelines, which Article 5.5 required before the
objective became operational, had been foreseen prec isely for that purpose. Canada’s interpretation
of Article 5.5 was not only unreasonable and unfounde d but could also lead to regulatory chaos for
Members of WTO.
Arbitrary, unjustifiable or disguised restriction on international trade: proportionality of the
Australian measure
5.11 The European Communities noted that in accordance with Articles 2.3 and 5.6 of the SPS
Agreement, Canada bore the burden of showing that Australia's measure was arbitrary, unjustifiable
or constituted a disguised restriction on international trade. In particular, Canada had to show that
there was another reasonably available measure, wh ich was less trade restrictive and which could
achieve the level of protection chosen by Australia. Canada did not appear to have established this,
because the salmon it was endeavouring to export did not come from regions or zones that had been
declared free from certain diseases of concern. The European Communities, on the other hand,
claimed to have shown Australia that the Atlantic salmon caught or farmed in Ireland and the United
Kingdom was free of the specific salmon diseases menti oned by Australia. EC salmon, therefore,
came from regions or zones free of those diseases and to that extent the Australian measures were not,
in the view of the European Communities, in conformity with Articles 2.3 and 5.6 of the SPS
Agreement.
India
5.12 India agreed that each Member had the right to take such measures which it might feel were
necessary for protection of human, animal or plant h ealth or life. It was, however, important for
Members to ensure that these measu res were applied in an equita ble manner, did not constitute a
disguised restriction of international trade. In this perspective, even though India recognized
Australia's desire to prevent the transmission of some of the diseases of concern to its own fish
population, it was important that the measures were not only necessary for attaining these objectives

but were also consistent with the WTO obliga tions. The sanitary measure had to be applied only to
the extent necessary to protect human, animal or plant health or life, and had to be based on scientific
principles and not maintained without sufficient sci entific evidence. As salmon constituted an
important ingredient in international trade, it w as essential that any measure which was found to be
inconsistent with Members' obligations, or whic h in any way negated the benefits accruing to any
country under the WTO Agreement, was removed expeditiously.
Norway
5.13 Norway did not contest Australia's stated policy objective to protect salmonid life or health
from the spread of exotic diseases, and accepted that Australia had the right to establish its appropriate
level of sanitary or phytosanitary protection, i.e., its acceptable level of risk. Norway did, however,
submit that Australia's measure was not necessary to achieve this purpose. Furthermore, a risk
assessment as appropriate to the circumstances had not been performed.
5.14 Norway stated that the Australian measure at issue amounted to an effective ban on imports of
fresh and frozen salmonid products, in contraven tion to GATT Article XI. The ban could not be
justified either under the general exceptions in GATT Article XX or the SPS Agreement, the latter
being an elaboration of relevant provisions of GATT 1994, in particular the provisions of
Article XX(b). As Australia had submitted that its measure was being maintained for the purposes of
protection of animal life and health from the risks arising from the entry, establishment or spread of
diseases, disease-carrying organisms or disease-causing organisms - measures that came within the
scope of Article 1 of the SPS Agreement as detailed in paragraph 1(a) of Annex A of that Agreement -
 Norway considered that the Au stralian measure had to be first examined against the rights and
obligations of the SPS Agreement. If the measure violated the SPS Agreement, there would be no
need to discuss Article XX of GATT 1994 separately.
5.15 Norway noted that the Australian measure applied to all salmonid product of whatever
subspecies or origin. However, the Australian re ports that related to risk assessment only assessed
disease risks in connection with potential imports of fresh and frozen adult, wild, caught Pacific
salmon from the United States and Canada (the species belonging to the genus Oncorhynchus).
Imports of farmed salmon and wild caught salmon from other countries would require separate risk
analyses. It thus seemed that no risk analysis ex isted that would cover all the products and origins
covered by QP86A (the species belonging to the genus Salmo and Salvelinus, common to
aquaculture). This in itself casts serious doubt s as to the conformity of QP86A with the SPS
Agreement.
5.16 Norway noted that a distinction had to be made between measures depending on the extent to
which they were based on an international standa rd, guideline or regulation. Of the 24 diseases
discussed in the Australian reports, and thus pr esumably the diseases the m easure was supposed to
protect against, two diseases had been identif ied by the OIE as requiring special attention
(i.e. notifiable Diseases). For these two diseases, fi sh had to be eviscerated before sold. Three
diseases were labelled Other Diseases (OIE reco mmended that the importing country require an
international aquatic animal health certificate). The other 19 diseases were not subject to any specific
recommendation. Only three of these had been co nsidered by the OIE Fish Diseases Commission,
which had not considered any specific recomme ndation necessary for these three diseases. The
Australian measure (the import ban) thus did not c onform to any international standard, guideline or
recommendation.
5.17 Where an international standard, guidelin e or recommendation existed a measure which did
not conform to that standard, was subject to two sets of requirements in Article 3.3, i.e., that it
resulted in a higher level of sanitary and phytosanitary protection than would be achieved by
measures based on the relevant international standards; and that there was either scientific
justification for the deviation from th e relevant international standard or the measure was a

consequence of the level of sanitary or phytosan itary protection a Member determined to be
appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5. Where
no international standard, guideline or recommendati on existed, there was no obligation to harmonize
with other countries' standards, but the measure ha d to be developed and applied in accordance with
inter alia, Articles 2 and 5 of the SPS Agreement.
5.18 The Australian measure, as it related to t hose diseases covered by OIE recommendations, did
not comply with the first requirement in Article 3.3, i.e., it did not result in a higher level of sanitary
and phytosanitary protection than would have been achieved by measures based on the OIE
recommendation. Australia's May 1995 Draft Report lis ted a number of events that had to take place
before an exotic disease could become established in Australia, and had concluded that this outcome
was so unlikely that it did not merit the stringent measures in effect. Later Australian reports and
submissions had not provided reasons to disprove this conclusion.
5.19 Even if one had assumed that a higher level of protection could be achieved by Australia's
measure, the measure did not comply with the second set of requirements in Article 3.3. Footnote 2 to
Article 3.3 stated that "there is scientific justifi cation if, on the basis of an examination and evaluation
of available scientific information in conformity with the relevant provisions of this [SPS] Agreement,
a Member determines that the relevant internati onal standards, guidelines or recommendations are not
sufficient to achieve its appropriate level of sanitary or phytosanitary protection". Norway contended
that there were no international scientific studi es that supported the contention that headless,
eviscerated salmon for human consumption had spread diseases to living salmon.
5.20 Alternatively, if one accepted that Australia's measure could achieve a higher level of sanitary
or phytosanitary protection, Australia's right to de termine such a higher level of protection - and the
measure to implement this decision - had to comply w ith the relevant provisions of Article 5, as well
as Article 2. This meant that the risks from th e introduction of diseases had to be related to the
importation in question.
5.21 Articles 5.1 and 5.2 required that an a ppropriate risk assessment be made. Annex A,
paragraph 4, explained this as an "... evaluation of the likelihood of entry, establishment or spread of a
pest or disease within the territory of an importing Member according to the sanitary or phytosanitary
measures which might be applied, ...; or the ev aluation of the potential for adverse effects on human
or animal health arising from the presence of ... disease-causing organisms in food, beverages or
feedstuffs." Article 5.2 furthermore required that Members had to take into account, inter alia
scientific evidence, production methods, inspection methods, prevalence of disease and existence of
disease free areas. Taken together, this required Au stralia to perform a thorough evaluation of the
different measures which might be applied to achieve its appropriate level of protection. Norway
accepted that Australia might come to a different resu lt than the OIE, if its evaluation of the risks and
measures, performed in conformity with the el ements detailed above, c ould justify a different
approach. The Australian arguments as to why the OIE measures were not sufficient to achieve this
level of protection, when other countries applied th e OIE measures to achieve, successfully, the same
level of protection, were, however, not based on the elements mentioned above. Furthermore, there
had been no quantification of likelihood of disease introduction for different measures were discussed.
5.22 Annex A, paragraph 4, defi ned risk assessment as relating to a pest or disease. The
requirement to perform separate risk assessment and management decisions for each disease was also
inherent in Article 5.2 with respect to disease-free areas. In establishing its measure, Australia had
not evaluated the likelihood of en try for each disease. When the OIE had established its two lists of
diseases, it had been because some diseases were thought to require more stringent measures than
others. Yet Australia's broad measur e made no distinctions, thus denying inter alia, other Members
the right, according to Article 6.2, to demonstrate th at its area was free of any or all of the diseases,
something which was particularly important with respect to the 5 diseases covered by the OIE
recommendations as opposed to the 19 diseases not so covered.

5.23 Norway noted that Australia's right to de termine its appropriate level of protection was
circumscribed by the obligation to avoid arbitrar y or unjustifiable distinctions in the level it
considered appropriate in different situations, if such distinctions resulted in discrimination or a
disguised restriction on international trade. Th is Article established a general objective of
consistency, unrelated to the level of protection c hosen. Consistency was, however, an objective, and
did not impose an absolute obligation in all resp ects. The SPS Committee had so far not developed
guidelines for the application of this paragraph. Co nsidering the numerous regulations that currently
existed, the differences that might exist between substances and diseases, and the many regulations
that were in force before the SPS Agreement came in to force, it seemed to Norway that only quite
similar circumstances coupled with unjustifiable levels of protection might be considered a violation.
This requirement had to be applied with caution, and the limits to unwarranted comparisons would
probably have to be decided from case to case. In the present case, the treatment of the same diseases
when present in other fish species, and perhaps also the treatment of other exotic diseases in fish,
would seem to be relevant.
5.24 Australia did not prohibit importation of fresh or frozen fish of other species which might
carry the same diseases, and where the introduc tion of disease would follow the same pattern.
Australia, furthermore, allowed the importation of live ornamental finfish which might be host to
various exotic diseases. Norway argued that this i ndicated different levels of protection. Australia,
furthermore, had provided no expl anation or justification for these differences, which previous
Australian reports had admitted were arbitrary and unj ustifiable. As such, they had clearly to be
considered a disguised restriction on internationa l trade, and, in this case, contrary not only to
Article 5.5, but also to the requirement in the last sentence of Article 2.3.
5.25 Irrespective of what might be considered as Australia's "appropriate level of protection" -
which Australia had never defined or quantified - against the spread of the diseases in question, it was
evident that Australia applied different measures to different fish species. Australia had not presented
evidence that would substantiate that different fish species with the same disease represented different
risks. It thus seemed that some of the measures were either unwarranted or ineffective.
5.26 The OIE recommended measures to protect im porting countries against various diseases.
Australia's measure with respect to salmonids was more trade restrictive than another measure, readily
available to Australia and which r esulted in the same level of protection, while at the same time its
necessity over other measures was unsubstantiated. In this respect, Norway therefore contended that
Australia had violated Article 5.6 and Article 2.2 of the SPS Agreement.
United States
5.27 The United States noted that it had a long hi story of unsuccessfully tr ying to work with the
Government of Australia to permit the importation of wild, ocean-caught salmon. For over 20 years,
Australia had prevented the importation of any uncooked salmon by claiming potential fish disease
transmission. The industry pr otected by Australia's ban, the Tasmanian salmon industry, had
originated at least in part from the importation of live salmon eggs from the United States.
5.28 The United States noted that Australia's import ban applied to all uncooked salmon, no
matter whether any salmon products in a shipment carried the disease and no matter whether the stock
from which the salmon was harvested was free of disease. Australia's broad arguments in support of
its ban disguised the lack of scientific justifica tion. Under the terms of the SPS Agreement, the
United States argued that the analysis had to be whether the measure at issue was based on legitimate
sanitary concerns for each specific disease on which Au stralia had based its ban. Instead of analysing
each disease, Australia referred generally to a broa d number of fish disease agents that it considered
could "potentially" be present in Canadian salmon. Yet Australia had declined to address the issues
involving each of these disease agents. As Australi a had not specified on which disease risk it had
based its ban, it was impossible to conduct the n ecessary analysis. The United States noted that

varying references in the Australian first submissi on in respect of the disease agents of concern had
led to confusion in regard to the actual number of diseases at issue.
5.29 The United States claimed that Australia's an alysis did not address some of the basic issues
surrounding its claims in support of its ban. First, Australia's claims turn ed on the assertion that for
each of the disease agents there wa s a risk that the agent might be present in eviscerated, wild,
northeast Pacific ocean-caught salmon (the "salmon at issue"). Yet in many cases Australia had
presented no scientific evidence of the agent ever ha ving been found in the salmon at issue, let alone
in any products from such salmon. Furthermore, Australia had not conducted its own tests to look for
the disease agents. Much of the analysis was mere speculation that, because the agent had been found
in salmon in freshwater, there might be a chance that the agent would occur in wild, ocean-going
salmon. Most of the disease agents which had b een listed by Australia had been isolated from
stressed Pacific salmon in freshwater, but had never been isolated or detected in wild, ocean-caught
Pacific salmon. Pacific salmon returned to freshwater as adults to spawn and then they died. As they
returned to freshwater, they became highly stressed , their immune response was compromised, their
flesh quality would begin to deteriorate, and they mi ght contract a number of opportunistic infectious
diseases which were not found in ocean-caught fish. Thus, Australia's list of 20 or so disease agents
would have to be reduced by removing those for which there was no scientific evidence of the agent
being present in the salmon at issue.
5.30 Second, according to Australia's own Final Re port, an essential link in the chain of events
necessary for imported salmon to introduce a disease was that "the pathogens must be present in
biologically significant numbers to initiate infection in the host". In other words, Australia claimed
that, for each remaining disease, the level of any di sease agent that would be present in the salmon at
issue was large enough to be an infective dose. Again, there was no scientific evidence to support this
claim with respect to each of these disease agents and, in many instances, there was scientific
evidence that this claim was not valid. Australia had not provided scientific evidence that all of the
disease agents of concern even o ccurred in the edible muscle, or other tissues which would be
imported, at a level which would constitute a risk of infection.
5.31 Third, Australia's claims were based on th e assertion that each of the disease agents was
exotic to Australia. Australia ha d not conducted an adequate survey of its waters or domestic stocks
of salmonids and native fishes to determine if th ese diseases were present. Instead, it relied on the
fact that the disease had not been reported and that it would turn up in routine testing. However, this
approach stood in stark contrast to the approach us ed to determine if the disease was present in the
salmon at issue. For instance, in the United States, the states of Alaska, Oregon and Washington
examined salmon submitted to their fisheries laborat ories by commercial fishers and processors. The
testing by these states was much more extensive than that done by Australia. In fact, only a few of the
disease agents listed by Australia had ever been r ecorded in wild, ocean-caught Pacific salmon in any
life stage or in any tissue and might well have not been found had the United States used Australia's
testing system. According to Australia's approach , none of the other disease agents existed in the
salmon at issue.
5.32 As a result, in the view of the United St ates, Australia's appro ach to the evidence was
inconsistent. Australia had to either accept that the evidence was sufficien t to establish that these
other diseases were not present in the salmon at issue (in which case there was no reason to ban their
importation in fresh or frozen from) or else that the evidence was no sufficien t to establish that these
diseases were exotic to Australia.
5.33 The United States noted that many of the di sease agents about which Au stralia claimed to be
concerned also occurred in other finfish, and Au stralia imported large quantities of other marine
finfish in a fresh or frozen condition, and imported live ornamental fish, without any sanitary controls.
Although Australia claimed that it had commenced , and would commence, risk assessments on some
of these other fish, it was doubtful that Australia wa s really concerned about the introduction of these

diseases or that the risk of disease was the true b asis for its ban. For over 20 years Australia banned
the importation of salmon without taking any steps to assess risks from, or protect against the
introduction of disease from, these other finfish.
5.34 Australia had stated that its appropriate level of protection was that "fish have been subject to
such treatment as in the opinion of the Director of Quarantine is likely to prevent the introduction of
any infectious or contagious disease." "Likely to pr event" would mean that it was likely that the fish
would not introduce an exotic disease. Australia's own characterization of the risks from the salmon
at issue made it clear that it was likely that the salmon would not introduce the disease. Accordingly,
it was not clear why Australia's ban was necessary. Instead, Australia's ban appeared to be designed
to ensure that there was no likelihood of any disease agent being found in imported salmon. "No
likelihood of disease" was a different test altogether from "likely to prevent disease," and "no
likelihood" was a much higher level of protection than "likely to prevent." The United States did not
see how Australia could reconcile its ban with its stated level of protection.
5.35 Finally, the United States noted that it could not endorse all of the arguments put forward by
Canada. In particular, the United States did not agree that the SPS Agreement required a
"quantitative" risk assessment. Nothing in that agr eement specified that the risk assessment had to be
quantitative. The term "likelihood" in the defi nition of "risk assessment" in Annex A to the SPS
Agreement did not mean a numerical value of probab ility. This simply recognized the constraints of
scientific knowledge. Ideally the objective of a risk assessment would be to establish, through
scientific evidence, a quantitative level of risk whenev er this was possible. However, in many if not
most cases, this would not be possible due to a lack of evidence that could link an activity
quantitatively to any effect on the population covered.
VI. PANEL'S CONSULTATION WITH SCIENTIFIC EXPERTS
Panel procedures with regard to scientific expertise
6.1 The Panel recalled that paragraph 2 of Article 11 of the SPS Agreement provided that:
"In a dispute under this Agreement involving scientific or technical issues, a panel
should seek advice from experts chosen by th e panel in consultation with the parties
to the dispute. To this end, the panel may, when it deems it appropriate, establish an
advisory technical experts group, or consu lt the relevant international organizations,
at the request of either party to the dispute or on its own initiative."
Noting that this dispute involved scientific or tec hnical issues, the Panel consulted with the parties
regarding the need for expert advice. Neither part y requested the Panel to seek such advice, however
both parties indicated that they had no objection to the Panel seeking advice. The Panel decided to
seek scientific and technical advice as foreseen in para graphs 1 and 2, first sen tence, of Article 13 of
the DSU, and pursuant to paragraph 2, first sentence, of Article 11 of the SPS Agreement.
6.2 The parties were invited to submit names of indi viduals expert in the subject matter before the
Panel. At the same time, names of individuals were also sought from the Office international des
epizooties (OIE). Brief curricula vitae were solicit ed from all experts who were prepared to assist the
Panel.
6.3 The parties were provided the opportunity to comment on these potential experts on the basis
of the curricula vitae, and in particular to state any compelling objections they might have with regard
to any individual. The Panel than selected four individuals from the list taking into account the
comments of the parties and the need for expertise in a number of areas (eg., risk assessment,

transmission of diseases of fish, and the procedures of the OIE). These experts were requested to
serve, in their personal capacities, as individual advisers to the Panel.
6.4 The Panel, in consultation with the parties, prepared specific questions which it submitted to
each expert individually. The experts were requested to provide their responses, in writing, to those
questions they felt qualified to address. The parties agreed that their written submissions to the Panel,
including the written versions of their oral statemen ts, be provided to each of the selected experts.
The written responses of the experts were provided to the parties, and the parties were given the
opportunity to comment on these.
6.5 The experts were invited to meet with th e Panel and the parties to discuss their written
responses to the questions and to provide further information. A summary of the written responses
provided by the experts is presented below.
191
6.6 The experts selected to advise the Panel were:
Dr. David E. Burmaster, Alceon Corporation, United States
Dr. Christopher J. Rodgers, fish disease consultant, Spain
Dr. James Winton, National Fisheries and Research Center, US Fish and Wildlife Service,
United States
Dr. Marion Wooldridge, Department of Risk Research, Central Veterinary Laboratory,
United Kingdom
Questions to the experts - Compiled Responses
6.7 By way of general introductory comments, Dr. Wooldridge noted that a number of different
terminology systems were still in use even within th e veterinary and animal health sphere (including
fish). In the terminology system now gene rally advised for use within this field, risk analysis and
risk assessment had different, distinct meanings although in the past they were often used
interchangeably. The term risk analysis as now ge nerally used comprised four components: hazard
identification, risk assessment, risk management and risk communication. This terminology was
taught in the WTO/OIE sponsored Risk Analysis Training Workshops.
6.8 In the SPS Agreement definitions, hazards were defined as additives, c ontaminants, toxins or
disease-causing organisms which may poten tially have an adverse effect. A particular risk analysis
might look only at a particular range of hazards, for example disease-causing organisms; and within
the scope of that particular risk analysis, hazard identification (HI) was then the process of identifying
all potential hazards in the commodity being considered.
6.9 Risk assessment was the process of estimating th e risk presented, by the identified hazard or
hazards, for the outcomes of interest. The relevant outcomes of interest for import risk assessments
were specified in the SPS Agreemen t. In theory, the assessment coul d be done either qualitatively or
quantitatively. In a qualitative assessment one estimat ed the risk (that is, the probability) of a
particular outcome in words; thus the probability of a particular outcome might be estimated as, for
example, high, or low, or negligible. In a qua ntitative risk assessment th e probability was assessed
numerically and the resultant probability (P) was given a numerical value; thus, for example, P= 0.99,
or P=1x10
-6, or "there is a 95 per cent probability that P<0.1". In practice a quantitative assessment
could only be undertaken where quantitative data allowed.

191 A transcript of the meeting with the experts is attached as Annex 2 of this document.

6.10 Risk management was the process of decidi ng whether a particular risk estimated under the
pertinent circumstances was acceptable (which was a matter of judgment dependent upon various
factors including the results of a risk assessment) and, if not, selecting and implementing measures
that could be applied to reduce the level of risk . Risk communication included all the communication
relevant to the risk analysis, including communi cating results of risk assessments and obtaining
information, opinions, and feedback from all in terested parties on any relevant factor including
scientific data and method, and acceptable risk levels.
6.11 A risk assessment was therefore only part of a risk analysis, but in answering the Panel's
questions on risk assessment, it might be necessary to consider the other elements of the risk analysis
within the Australian document. In addition, the two Australian documents did not use the two terms
in exactly this way. They appeared to call both th e whole process, and the risk assessment itself risk
analysis, therefore those parts of the document relati ng specifically to the risk assessment have to be
identified by the reader. Also, the qualitative assessment of risk often leads very directly into a risk
management recommendation, making separation more difficult.
6.12 Dr. Wooldridge further noted that her main area of competence in this matter was on risk
analysis and risk assessment.
Risk assessment procedures
Question 1. When comparing Australia's Draft 1995 ri sk assessment with the 1996 Final Report,
what are the main differences between the two risk assessments? Would you characterize one or the
other of these risk assessments as technically or scientifically more sound than the other? If so, on
what basis? What, in your view, are the mi nimum requirements of a risk assessment? Would
requirements vary depending on the product and/or diseases addressed? With regard to both the
1995 Draft Report and the 1996 Final Report, do these re ports, from a technical/scientific point of
view, meet the minimum requirements of a risk asse ssment generally accepted in the specific area of
aquatic animal health?
6.13 Dr. Burmaster replied that the two reports used sim ilar methods but came to opposite policy
conclusions. He did not consider that one or th e other of these risk assessments was technically or
scientifically more sound than the other, but that th e two reports had similar strengths and limitations.
In terms of the minimum requirements for such a ri sk assessment, Dr. Burmaster indicated that, with
some exceptions in some situations (but not in the case of this dispute), a risk assessment must use
quantitative methods to estimate the probability and the magnitude of desired and adverse
consequences. Neither the draft risk assessment (May 1995) nor the final risk assessment (December
1996) used quantitative methods, so neither met the minimum requirements for this situation. Dr.
Burmaster noted that the requirements might possi bly vary depending on the product and/or diseases
addressed. For example, the minimum requirements for a risk assessment concerning insect pests in
fruit orchards might differ in some ways from t hose for a risk assessment concerning bacterial
diseases in fish. However, he believed that each such risk assessment must, at a minimum, use
probabilistic methods to distinguish and to quantify the variability and the uncertainty inherent in the
problem. [References to the current thinking in the risk assessment community about distinguishing
and quantifying variability and uncertainty could be found in (i) Burmaster & Thompson, 1997; and
(ii) Burmaster & Wilson, 1996, via the Internet from http://www.Alceon.com.]
6.14 Dr. Rodgers observed that the 1996 Final Report had b een restructured and divided into 4
main sections, which were linked by an overall summary, reflecting the two previous draft reports.
The 1995 Draft Report was designed as a draft import risk analysis (IRA) for public comment, which
was a valuable additional step for this type of exercise. Unfortunately, this led to the subsequent 1996
reports being less specific, although the sections on disease considerations presented the background
information in a more clearly structured format by using recommended risk assessment factor
groupings (e.g. country, commodity, agent, etc.). The 1996 Draft Report adopted a more cautious

approach, since the conclusion used expressions such as "... if the importation of product were to be
permitted ...", rather than statements such as " ... AQIS recommends that importation be permitted
under the draft conditions described ...", as occurred in the 1995 Draft Report. On the other hand, the
1996 Final Report went one step further and categor ically stated that "... it is recommended that
uncooked salmon products should not be permitted entry ...". This could only be as a result of the
public consultation exercise and the uncertainty arising from missing or difficult to interpret data. This
approach gave the impression that the 1996 Draf t Report considered the available options as a
technical review but fell short of commitment. The 1996 Final Report fully committed itself.
6.15 In contrast, the 1995 Draft Report, although ap pearing as a straightforward literature review
in some sections, appeared to use the available in formation to attempt a qualitative risk assessment,
which lead to subjective assumptions about the va rious possibilities for disease introduction. As such,
the 1995 Draft Report was a more useful document, in the sense of an inte rnal risk assessment
exercise, since it evaluated the data to conclude that a negligible risk existed, while at the same time
recognising that the overall risk of disease intr oduction could not be quantified. The 1996 Final
Report gave more weight to the unknown elements of the assessment and as such was more cautious,
which resulted in an outcome closer to the "unaccep table" rather than the "negligible but acceptable"
end of the scale. Dr. Rodgers indicated that th e lack of actual data and disagreement between
scientists on likely outcomes probably led to this an omaly, since subjective opinion is usually argued
as unrepresentative of the true situation. Unfort unately, qualitative risk assessment contains an
element of assumption which is a necessity as a substitute for gaps in the scientific data base. In fact,
a range of "scientific expert opinion" could actuall y be very useful in these circumstances and might
even be adapted to create probability distributions for a more accurate quan titative risk assessment.
This would be equally true for both the disease ag ent factors and the unique factors related to
Australia, such as the susceptibility of Australian sp ecies to exotic salmonid diseases. Only the 1995
Draft Report made an attempt in this direction.
6.16 Dr. Rodgers noted that the reports had been compiled from an Australian perspective and in
this respect met the methodology requirements laid down by the OIE, which stated that countries may
design their own process. The reports were supporte d by references to the scientific literature and
other sources, as required. The question of the potential volume of trade was addressed in the 1995
Draft Report by listing the Canadian export stat istics for salmon to other countries and simply
estimating that about 3000 tons would be imported annually. The 1996 Final Report only referred to
"commercial quantities of product", even though th e number of aquatic animal units being imported
significantly influences the risk assessment. The ot her basic factors required for a risk assessment,
namely country factors, commodity factors, exposur e factors and reduction factors, were considered
on a disease-by-disease basis from a textual technical/scientific point of view. The potential adverse
consequences of disease introduction were also outlined in the same way.
6.17 One of the more important necessities for a risk assessment, particularly a quantitative risk
assessment, was good scientific data concerning the re ported prevalence of infection in the exporting
country. For fish or shellfish (and other animals) th is generally occurred in one of three ways: data
from the OIE annual returns, scientific reports and published peer-reviewed scientific literature. In
practice, each of these varied in detail from basic in formation (OIE returns) to detailed data (scientific
literature). However, even the most detailed data varied widely, in both content and usefulness.
6.18 Prior to a consideration of the factors involved in a risk assessment exercise it was necessary
to address the basic question that the analysis woul d be designed to answer. The question needed to
be as specific as necessary in order to provide useful information in support of a subsequent decision
concerning the importation of a batch of fish or their products. A question usually specified the
disease, or diseases, of concern, the fish species to be imported and possibly the time-frame of
interest. However, the basic question might need refining and could be divided into more precise
questions. Sometimes it was not clear, until the prob lem was considered in detail, exactly which risks
needed to be estimated. As a result, the origin al question might need to be re-framed. Once the

hazard had been identified, all the events likely to occur during importation needed to be listed in
order to represent the expected pathway which would prevent the unwanted event from occurring.
6.19 The potential risk factors could be generally divided into prioritized categories, such as:
- the diseases of concern and their prevalen ce in the species for export and any closely
related species in the exporting country and surrounding areas;
- the epizootiology of the diseases of concern;
- the effectiveness of the dis ease surveillance and monitoring systems in the exporting
zone/country and the powers of the government administration over the movement of
fish and fish diseases;
- the sensitivity and specificity of diagnostic tests for detection and identification of the
pathogens of concern.
The identified risk factors could also be further broken down into more specific topics as follows:
(a) Country factors concerned with the diseases present in bo th the exporting and
importing country or region and would include factors such as disease prevalence, disease
characteristics (methods of spread, clinical si gns, carrier state and reservoir species) and the
prevalence of residual infection; the estab lishment/facility factor (the presence of known
vectors, presence of anadromous fish to wate r supplies, means of processing); assessment of
monitoring services (import/export policies and legi slation) and transportation. Destination
factors were also a consideration but would need to include host susceptibility and the end use
of the import. These factors would be considered for each disease of concern.
(b) Commodity factors, mainly applicable to the diseases present in the fish or products
rather than live animals. These were genera lly concerns related to whether any infected
material was removed after slaughter, the pathoge n survival rate after processing (storage and
transit temperatures, processing plant waste and disposal practices, elimination during
storage) and the volume of any permitted trade (disease introduction is directly proportional
to amount imported). Specific exposure factors re lated to the use of the product could also be
considered in this category, or form a separa te topic dealing specifically with the probability
of a susceptible species being infected and transmission of a disease.
(c) Risk reduction factors could be considered to include options available to reduce the
probability of introducing a disease agent. These mi ght include factors such as the origin of
the product, selective destination establis hments and specified product processing or
treatments.
6.20 The risks were identified by drawing up a list of potential diseases of concern that would be
associated with the importation of the fish product, followed by an examination of the consequences
of their entry and establishment. In addition, it was prudent to identify management options to
further reduce the likelihood of disease entry and to consider the socio-economic and environmental
impact of disease establishment.
6.21 Dr. Rodgers indicated that actual histor ical data was required for a quantitative risk
assessment, since it was necessary to define th e distribution of the probability of a disease
introduction. For disease prevalence, this informat ion would come from surveillance and monitoring
programmes. In the absence of reliable data, a qualitative risk assessment might need to be performed
particularly for factors related to the poten tial pathogens themselves, such as pathology,
epizootiology, control, survival and inactivation. A certain amount of assumption might also be

necessary in these cases, although a worst case scenario could be adopted, even if expert opinion had
been included as a short term substitute for actual documented data.
6.22 Dr. Rodgers noted that the current OIE gui delines for undertaking risk assessment were being
completely rewritten and a draft should be available shortly. Whilst not specifically referring to fish,
the principles would be applicable to aquatic anim als and their products in general terms, as in the
current version. Consequently, this would pr obably entail a change in the OIE guidelines for
importation of aquatic animals and their products, as detailed in th e International Aquatic Animal
Health Code.
6.23 Dr. Wooldridge identified the following minimum requirements of a risk assessment,
providing an explanation for each.
Requirement
A. A risk assessment must be transparent,
that is it must be clearly set out, and
fully referenced in the risk assessment
report produced.
 Explanation
B. The risk which the risk assessment
evaluates must be defined and clearly
set out.
 For an import risk assessment this
includes the definition of the
commodities to be included in the
assessment and the definition or
description of the outcomes of interest.
For an import risk assessment these
outcomes will usually be the various
identified unwanted consequences.
C. The hazard or hazards to be
addressed must be defined and
clearly set out. If a particular hazard
has not been specified in the request
for a risk assessment, this will require
a hazard identification of appropriate
breadth.
 A decision must be made as to which
are the hazards of interest. If the
decision is that all disease-causing
organisms are of interest, then a
hazard identification to identify all
disease-causing organisms potentially
in the commodities of interest must be
undertaken.
D. The potential pathways from the
hazards of interest to the outcomes of
interest (that is the sequence of
events necessary) must be elucidated,
and clearly set out. Details of any
processes incorporated in this
pathway (for example testing for
infection) must be fully referenced
where appropriate.

 These pathways will be based upon the
(mainly biological) requirements
necessary to arrive at the defined
outcomes and are most clearly
illustrated as a series of steps in a
diagram. Full referencing allows for
transparency. For most import risk
assessments, there will be (either
implicitly or explicitly) a risk release
assessment stage, an exposure
assessment stage, and a consequences
assessment stage, and outcomes will
generally be consequences.

E. For each identified step in the
pathway, information (data) must be
gathered to evaluate the probability
of that step occurring. This may vary
from hazard to hazard, and therefore
must be hazard specific where
necessary. This information must be
clearly set out, and the source of this
information should be fully
referenced.
 The information (data) will be either
qualitative or quantitative, depending
upon availability and the type of
assessment being undertaken. The
assessors should undertake a search
which is as thorough as is practicable
to find the most appropriate
information for the assessment in
hand. Full referencing allows for
transparency.

F. The overall probability of the
pathway of events from hazard to
defined outcome actually occurring
is evaluated either qualitatively or
quantitatively for each defined hazard
and outcome, using the information
obtained. A quantitative assessment
also uses appropriate mathematical
manipulations. Reasoning,
mathematical manipulations (where
used) and conclusions must be fully
set out. A quantitative assessment
must include a time-frame.

This will be a probability given in
either qualitative terms (for example
high, low, negligible risk), or
quantitative terms. A time-frame may
be actual time (e.g. risk per year) or
quantity based (e.g. risk per batch).
Dr. Wooldridge indicated that these basic requirements did not vary with the product or disease
addressed. The specific variations which would occu r in each stage of the table, depending upon the
assessment required, were allowed for within the defined minimum requirements.
6.24 With regard to the 1995 Draft Report, Dr. Wooldr idge observed that the major part of this risk
analysis document comprised a very clearly set out and transparent qualitative risk assessment.
Included within the document were:
- A short, clear executive summary wh ich summarized all major points.
- An introduction (Section 1) which included a definition of the risk analysis, and thus
the risk assessment, being undertaken.
- A background (Section 2) which include d a brief overview outline of the risk
assessment methodology, including the se quence of events n ecessary for unwanted
consequences to occur (Section 2.2) and an assessment of the current disease status of
Australian salmonids, necessary for consequence assessment given a disease
incursion by import (Section 2.9).
- A section on risk factors (Section 3) which described the potential pathways from
hazard to risk in detail and illustrated di agrammatically with an assessment, where
appropriate, of the effect of each of these stages on the probability of viable
disease-causing organisms successfully passing through that step.
- A section on diseases (Section 4) which in itially gave the results of the hazard
identification, which comprises a list of the defined hazards, or diseases, being
considered in this assessment. This w as followed by a fully referenced section on

each disease hazard including, for each, a consideration of the factors involved in the
evaluation of the probability of a disease outbreak due to that hazard.
- A discussion section (Section 5) whose risk assessment part included summaries of
the disease considerations, product conclusi ons, environmental concerns (including
the current recorded Australian disease situa tion and the regulations applied to other
imported fish species) and consequence c onsiderations. Also considered was
evidence from the experience of fish importa tion into other countries, and that of
Australia before the current regulations we re put into force. The discussion initially
considered each potential disease hazard and then, taking into account all the relevant
factors, qualitatively evaluated the probability of an unwanted outcome from import
of the commodities under consideration.
In addition, risk management issues were discussed, including considerations in
setting the level of risk. Dr. Wooldridge specifically noted the following points made
on page 217; that the mere possibility of an imported product containing exotic
pathogens was not sufficient to prohibit impor tation; that Australia had rejected the
impractical ‘zero-risk’ approach; and that quarantine decisions must be made based
on the best information available and the most likely outcomes given that
information. There was therefore emphasis throughout on attempting to estimate
probability rather than merely possibility. In conclusion, in this analysis risk
management recommendations were given resultant upon the probabilities estimated
in the qualitative risk assessment.
The 1995 Draft Report also included a glossary and appendices on draft import conditions, translating
the findings into a recommended policy given in Appendix 6.
6.25 Dr. Wooldridge summarized that the 1995 Draft Report was technically and scientifically a
clearly and well executed qualitative risk assess ment with all essential requirements present,
particularly with respect to the clarity of the rationa le for the conclusions reached. She noted that she
was not competent to comment upon the validity of the fish-related information given.
6.26 With regard to the 1996 final risk analysis report, Dr. Wooldridge noted that this document
resulted from the process of risk communication en tered into after the publication of the draft
document. It was divided into an executive su mmary and four sections. The first section was
described as a risk analysis, the second section cont ained the data used for the diseases identified as
hazards. The first two sections therefore included the final risk assessment for the risk of disease
introduction, as well as the risk management conclusions and decisions. These sections had
counterparts within the draft document. She expressed the opinion that, for clarity of comparison, the
risk assessment layout within related documents shoul d be broadly similar but, noted that here this
was not the case.
6.27 The third section of the 1996 Final Report was an economic assessment of the effect of the
introduction of two of the diseases, and the final se ction contained the bulk of the responses to the
draft risk assessment; that is, the results of the risk communication process. These sections had no
counterparts in the draft document.
6.28 A risk communication process served two ma jor functions; it might identify inaccuracies in
the risk assessment process; and it would provide information regarding the acceptable level of risk
amongst interested sections of the community. These were two separate ty pes of feedback, with
different implications. In Dr. Wooldridge's view, each point in the documentation of such a
consultation process should refer specifically, by cro ss-reference to the place in the initial risk
analysis and risk assessment to clearly demonstrate whether, how and exactly where and why the

communication process had modified and altered th e initial assessment, conclusions and resultant
policy recommendations.
6.29 New or altered ‘factual’ evidence or methodol ogy incorporated into the hazard identification
or risk assessment itself should be clearly indicated, and it should also be immediately possible to see
how this related to any altere d conclusions reached in the assessment. This allowed the risk
assessment, that is the estimation of the risk invol ved, to be agreed as an issue separate from any
considerations of acceptable risk. Any changes in recommended risk management policy due solely
to the differing conclusions of the modified risk assessment should also be made clear.
6.30 Any changes in the level of risk considered to be an acceptable risk by the risk manager after
consultation during the communication process should be separately discussed and described and any
resultant effect on risk management policy should be clearly differentiated from the effects of an
altered risk assessment.
6.31 Dr. Wooldridge noted that this was not the case with this document as, although the risk
communication responses were documented in the fina l section, the format of the risk analysis and
risk assessment were very different from the draft. This made it more difficult than it otherwise
would be to identify differences, particularly of de tail, between the two risk assessments and exactly
how they came about. Nevertheless some highly significant differences were present.
6.32 In comparing the 1995 Draft Report and the 1996 Final Report, Dr. Wooldridge noted that
there were differences in format, clarity and tran sparency. The first majo r difference was that the
processes involved and conclusions reac hed in the actual risk assessme nt were much less clearly set
out than in the draft. The order had been altere d and the initial contents page (v) was particularly
unhelpful in tracing the information sought; data was often difficult to find.
6.33 Partly due to the methodology employed and pa rtly due to the layout, it was more difficult (if
not impossible) to disentangle the sections relevant to the assessment of the risk from the sections
relevant to a consideration of risk management issu es, in particular that of acceptable risk; in her
opinion this was a serious flaw. In a risk analysis care should always be ta ken to distinguish between
assessed risk and acceptable risk.
6.34 She further observed that the order of presen tation was confusing. The major part of the
information on the diseases themselves (Section 2) now came after the assessment in which that
information was used (Section 1), as did an outline of "risk analysis" methodology (Appendix 1.7.7).
The potential risk pathways considered were much less clearly laid out and less detailed than in the
draft. In particular Sections 1.3.2 (Risk An alysis: Considerations) and 1.4 (Risk Analysis
Considerations) were, in her opini on, poorly set out (and in addition the headings were confusing).
This made the reaching of relevant assessment conclusions more difficult.
6.35 The responses from the consultation process, on which the changes in both risk assessment
and risk acceptance were based, were documented in the final two sections (Sections 3 and 4), and
were not easily related to the changes made in th e final risk assessment as compared with the draft
version. A clear separation of the responses by cat egory (in particular whether concerning fact, or
conclusion, or policy recommendations) and a system of cross-referencing these with their effect on
the initial risk assessment data, risk estimate conc lusions and risk management issues would enhance
clarity and comparison of the risk analysis.
6.36 There was no obvious explanation as to why the finalised report should be less clear than the
draft report. In her opinion it was far less transparent.
6.37 Dr. Wooldridge indicated that the next major difference was that the underlying basic
methodology of the risk assessment had been altered. Both draft and final document were qualitative

assessments. In the final document there was a di scussion of the impossibility, given information
available, of undertaking any quantitative risk as sessment (page 24) and specifically, on page 25, the
final document stated that "This paper discusses pot ential routes of entry to the aquatic environment
but does not calculate the likelihood that exposure w ill occur.". However, not only did the final
document explicitly rule out the possibility of a quantitative assessment, but the qualitative
assessment then proceeded implicitly on the basis that without quantification, the assessment could
only be concerned with the possibility of agent entr y, rather than making any attempt to qualitatively
ascribe probabilities based on the information available.
6.38 This resulted in conclusions such as the following: "There will be an unknown chance - with
some degree of uncertainty about the confidence th at can be had in any estimation - that imported
product will be infected." (page 50). But we can work this out before we undertake a risk assessment.
6.39 In Dr. Wooldridge's opinion, looking only at the possibility of particular consequences, rather
than the probability, was neither an appropriate technical method nor adequate scientific outcome
from a risk assessment. This was the most important difference between the draft and the final report.
6.40 Dr. Wooldridge further observed that there we re differences in data used in the assessment. A
number of specific additional risk factors were cons idered in the final document, and this was an
appropriate result of the communication process. Those identified included, for example, biofilms on
processing equipment (page 25), potential additional diseases (page 26) and a potentially incorrect
assumption about the amount of salmon which would be cooked (page 30).
6.41 Some data was present in th e initial risk assessment that did not appear to be present in the
final assessment. Examples included the tables of data given in the section on risk factors in the draft
document (e.g. page 17), although with the very di fferent format, it was difficult to be completely
certain that it had not been included elsewhere. She could find no explanation for the data having
been left out.
6.42 In summary, Dr. Wooldridge stated that in her opinion the risk assessment methodology in
the 1995 Draft Report was superior to the 1996 Final Report, and technically acceptable, whereas that
in the 1996 Final Report was not. For the reasons given above, she did not consider that the 1996
Final Report met the explicit minimum methodological requirements of a risk assessment. She noted
that she was not competent to comment upon the specific information regarding the fish diseases
identified, nor the completeness of the hazard iden tification, nor on the technical information on the
processes which the fish undergo. The accuracy a nd completeness of this information would of
course affect the final conclusions from either assessment.
Question 2. The Panel notes that the government of New Zealand conducted a risk assessment
with regard to the importation of Canadian Pacific salmon in 1994 (submitted by both parties). In
what manner and to what extent do you consider th e risk assessment undertaken by New Zealand to
be technically/scientifically relevant to the disput e at hand? What is the relevance of the scientific
evidence considered in the New Zealand risk assessment to the Australian Final Report?
6.43 Dr. Burmaster replied that the report completed by New Zealand in 1994 met the minimum
requirements for quantification in a risk assessment of this nature. In terms of the relevance of the
scientific evidence, he noted that based on conversa tions with a biologist familiar with New Zealand
and Australia, he believed that there were many similarities between the conditions in the two
countries. From his perspective as a probabilistic risk assessor (but not as a fisheries biologist), he
thought that New Zealand's Report resolved many - and perhaps all - of the issues between Australia
and Canada. If Australia did not agree that the Ne w Zealand's Report resolved all the issues between
Australia and Canada, he thought Australia need ed to prepare a new risk assessment using
probabilistic methods to quantify the risks associated with different policies.

6.44 Dr. Rodgers indicated that the 1994 New Zealand government risk assessment, referring to
the risk of introducing exotic diseases of fish through the importation of ocean-caught Pacific salmon
from Canada, contained some factual information which was relevant to the dispute at hand. As such
it was useful background information. Data limitati ons at the time of the report led to a combination
of both qualitative and quantitative risk assessment s being carried out, although the latter was only
concerned with one disease (furunculosis). The assessment analyzed the available data in a competent
scientific way and used the opinion of experts, where necessary, to supplement published information
and provide a substitute for gaps in the data base. Unfortunately, the l ack of data in certain important
areas meant that assumed outcomes were qualitative a nd therefore some were not relevant to the
current dispute, since non-validated opinion can be open to different conclusions. In addition, the
conditions applicable to New Zealand might not be of equal importance to another country and
additional risk factors might need to be consid ered in another assessment. For instance, the
environment, the fish species being farmed a nd the presence of susceptible host species would all
have to be reassessed. Consequently, a similar ri sk assessment undertaken by Australia, using the
same information in support of additional risk factors, might not arrive at the same conclusions.
6.45 Of equal, if not more relevance, Dr . Rodgers indicated, was the recently published
(October 1997) report by the New Zealand governm ent entitled "Import health risk analysis:
salmonids for human consumption". This was eff ectively a more comprehensive update to the earlier
1994 Report, since it contained additional factual information on pathogen survival, inactivation and
likely tissue levels. In addition, the quantitativ e risk assessment model had been modified and
improved by using alternative distributions for th e probabilities arising from expert opinion and the
possible number of infected fish imported per tonne of product. It was also a more global report
because it considered farmed Atlantic salmon fro m Norway, wild Pacific salmon from the Pacific
North West of America and farmed rainbow trout from Denmark. As a result, two additional inputs
were included, namely those of prevalence of infec tion of harvested fish and fish weight. Taking
furunculosis as an example again, one of the conc lusions had been that, whereas a qualitative risk
assessment indicated that the risk of the introduction of Aeromonas salmonicida (the bacterial causal
agent of furunculosis) through importations of the commodity (products) was low, quantification of
the risk further demonstrated that such an event was unlikely to occur, particularly given the relatively
low annual volumes which were likely to be imported.
6.46 Dr. Wooldridge replied that the New Zealand risk assessment addressed the question of
import of the same commodity, ocean caught Pacifi c salmon from Canada, into New Zealand. As
with Australia, it also took into account the effect of evisceration and head removal. It included a
qualitative analysis, including an assessment plus management recommendations on the full range of
hazards identified, and a quantitative assessment on one particular hazard, Aeromonas salmonicida.
6.47 In terms of the qualitative analysis and assess ment, the potential pathway from hazard to
unwanted outcome (the introduction of fish disease) was outlined on page 3. This included steps
involved in release (i.e. import of infected material ) and steps involved in exposure and transmission
in New Zealand. The main assessment consider ed 23 diseases as hazards. These were all diseases
included in the Australian risk assessment; the one considered in the Australian assessment but not
included in the New Zealand assessment was Whirling Disease (Myxobolus cerebralis), but it was
stated earlier in the document that Whirling Disease was already present in New Zealand (page 10).
6.48 Thus the same commodity was being assessed , and it was passing through the same processes
in Canada before export. The export or release risks for each disease associated with the export of the
same grade, quality and processing of salmon at the point of export would therefore be the same
regardless of their intended destination. Up to th is point therefore, this assessment was completely
relevant both scientifically and technically to the dispute and the Australian Final Report. One would
expect broadly the same data to be used, and the conclusions regarding the assessed risk of ‘release’
to be the same. Any discrepancy would be a cause for further investigation.

6.49 Differences in transit conditions, processi ng in the destination country, local exposure
pathways, and susceptibility of local fish might be different, and data, assessment results and
conclusions would not necessarily be the same for exposure and likely conseq uences. However, the
basic methodology should be similar, and was therefor e technically relevant. In actual fact, despite
the possibility of differing exposures etc., the Ne w Zealand qualitative assessment was for the most
part similar in content, method and conclusions to that in the draft Australian assessment.
6.50 The New Zealand assessment also gave, for each disease, a very clear summary of the reasons
for the conclusion reached, and this was a very useful feature of the assessment. From this it was
possible to see which diseases were considered of ne gligible risk due to their release assessment
results, and of the 23 considered, 15 were classified as of negligible risk on this assessment alone. Of
the remaining 8, four were consider ed to be of negligible risk pa rtly because they require specific
intermediate hosts not considered present locally, and four partly because they were already present in
New Zealand, although in all cases release assessment results also played a prominent part in reaching
the conclusions. Nevertheless, the exposure patterns and local disease situation (that is, the data used)
could, for these eight, be compared directly with Australia if required, as could that for Whirling
disease.
6.51 Dr. Wooldridge also commented on the quan titative assessment as used in the New Zealand
Report. In both countries assessments, furunculosis caused by Aeromonas salmonicida , was
considered to be the most likely disease to be introduced. The New Zealand assessment reached the
conclusion, based on the release assessment result, that "Wild, oc ean-caught Pacific salmon from the
west coast of North Ameri ca are unlikely to introduce A. salmonicida when imported as headless,
eviscerated fish" (page 35). It went on to say "How ever, because A. salmonicida is the one pathogen
of salmon likely to be present in a high concentrati on in the muscles of diseased fish, it is the subject
of a separate quantitative risk assessment" (page 36).
6.52 The method used in this quantitative assess ment was based on Monte Carlo (stochastic)
simulation, which allows real life uncertainty an d variability to be used in the distributions
incorporated into the model. Outputs, rather than being single point values, are also given as
distributions, which can be illustrated graphically a nd analyzed statistically. They therefore give
much more information than a single point determ inistic model, and are in general the preferred
method for such quantitative assessments.
6.53 The assessment evaluated the risk of four possible product presentations (page 56) but most
importantly, the release assessment was explicitly separated from the exposure assessment (e.g.
page 58). As with the qualitative assessment, this release assessment was both scientifically and
technically applicable to Australia as well as New Zealand. Similarly, although specific import data
(in particular estimated import tonnage per annum) and exposure r outes and susceptibilities might be
different, requiring an exposure model different in detail, the technical methods employed in this
quantitative assessment were fully applicable to any other import destination including Australia.
6.54 Dr. Wooldridge noted that a quantitative assessment required also the availability of
appropriate data, and the Australian Final Report argued that such data was not available. However, it
was clear from the New Zealand assessment that sources of data for the release assessment part, for
this disease at least, did exist and in her opinion no convincing argument was made as to why such
data could not also have been utilised by Australia . She observed that there was generally much more
data in existence for almost any quantitative risk assessment than at first sight seemed likely to be
available. However the source and type of such data was not always immediately apparent until a
model was under development, when specific data requirements could be fully considered.
6.55 In summary, Dr. Wooldridge considered that all of the technical methodology and a large
proportion of the scientific data used in the New Zealand risk assessment was relevant to both the
dispute and the Australian Final Report. She reca lled that she was not competent to comment upon

the accuracy of the fish-based data, but specifically for that used in the release assessments and given
the conditions specified, if it was correct for New Zealand, then it was also correct for Australia.
Question 3. Canada argues that for a risk assessment to be appropriate it is not enough to
claim/prove the possibility of risk. According to Canada, one has to evaluate and give a certain
probability of risk. What is your view on this poi nt from a scientific/technical perspective? To what
extent, from a scientific/technical point of view, does one have to quantify, or use expressions which
qualify, a risk in a risk assessment for the risk assessmen t to be deemed satisfactory? To what extent
can you establish the probability of occurrence of the risk involved when dealing with more than one
disease agent?
6.56 Dr. Burmaster indicated that he agreed with Canada on this point. He thought that a
quantitative risk assessment using probabilistic techniques was the most appropriate tool for resolving
this dispute between the two countries. Although he could not specify sharp boundaries as to what
extent it was necessary to quantify, or use expressi ons which quantify, a risk for a satisfactory risk
assessment, he considered that the current disput e certainly fell within the region where a fully
quantitative risk assessment was nece ssary. With regard to the est ablishment of the probability of
occurrence of risk when dealing with more than one disease agent, he referred to his response to
Question 4.
6.57 Dr. Rodgers replied that the difference between the possibility of risk and the probability of
risk was largely based on the availability of relia ble data. When there was insufficient data for a
quantitative risk assessment it was necessary to undertake a qualitative analysis instead. Alternatively
both types of analysis could be used to complime nt each other. However, the more mathematical
concept of quantitative risk assessment, which used probability distributions in a predictive way gave
an indication of the probability of an event occurri ng. On the other hand the same probability could
not be generated from a subjective qualitative analysis , since only the possible outcome of an event,
or series of events, could be generated using this methodology. In other words, quantitative risk
analysis attached numerical equivalents to qualitative estimates and assumptions. The quantitative
approach was more accurate and ideally should be used (data permitting) to provide a more valid
answer to a potentially complex chain of interac tions. However, this would mean that all the
variables associated with an importation would need to be known with some accuracy in order that the
risks could be established mathematically.
6.58 The possibility and the probability of an event occurring both embodied elements of
likelihood and risk. However, Dr. Rodgers was not aware of any pre-requisite to use the quantitative
method, particularly in view of the lack of data in certain key areas of aquatic animal health. This
applied equally when dealing with more than one disease agent, since, although many risk factors
were common between different diseases, each dise ase might have unique factors to consider and
each of these would have a variable quantity and quality of usable data.
6.59 Dr. Wooldridge indicated with regard to the question of probability versus possibility, that in
her opinion, the requirement of a risk assessment was to evaluate the probability o f r i s k . S h e
identified this as one of the minimum requirements (see response to Question 1). Given the existence
of a particular disease agent, one could always construct a possible infection transmission scenario,
however improbable, and therefore demonstration of the possibility of successful transmission and
disease was not adequate.
6.60 However, the probability di d not have to be expressed quan titatively, and frequently it could
not be. In qualitative assessment there was therefore the difficulty of what was meant by the terms
used, for example high, medium or low risk, and s ubjectivity was a potential problem. If there were
several hazards being evaluated, it was often possible to distinguish between them and thus class them
as high or low within the group being considered. However, in import qualitative risk assessment and
when dealing with a disease of serious consequen ces, one usually looked for something which could

be described or classified as a "neg ligible" risk with respect to th e consequence of causing a disease
outbreak. That is, given all the data available, the conclusion reached by most people with
appropriate expert knowle dge would be that the likelihood of the organism passing through every
necessary stage in the pathway fr om potential hazard to unwanted out come was highly unlikely. It
was accepted that there was still a degree of subjectiv ity even in this classifi cation, and that was why
the assessment must be fully transparent.
6.61 Dr. Wooldridge further noted that regard ing initial qualitative classification, whatever the
initial (unknown) risk, it was often possible to qua ntify the amount by which that risk could be
reduced if certain safeguards are put in place. Thus, given qualitative evidence that a "low" risk
initially existed, it might be possible to deduce that a "negligible" risk existed after application of the
safeguards and a quantitative assessment of the difference.
6.62 With more than one disease agent, if a quantitative assessment could be undertaken for each
disease, then it was possible to quantify the total ri sk. However, individu al quantitative assessments
were time consuming and might not be possible. In any event, qualitative a ssessments were the type
generally done initially.
6.63 Whichever method was used, if any one of the diseases being assessed individually was
considered by itself to present a risk, at a level ag reed by all concerned to be unacceptable to the
importing country, then that commodity would not be imported. Given this, it was therefore
necessary always to first assess each disease risk sep arately. A problem only arose when each disease
taken individually was assessed as representing a very low level of risk, and when those assessments
were qualitative.
6.64 In this situation, if each individual risk had been classed as "negligible" it might be argued
with some justification that the overall risk was th erefore negligible. However, given some way of
further ordering the risks within this "negligible" cat egory, it might still be possible to decide on that
disease with the maximum risk. In the approach ta ken by New Zealand in this situation, the disease
with the highest assessed qua litative risk was quantitatively assessed. Although not done by New
Zealand, the maximum total risk could then quan titatively be assessed by assuming that each of the
other diseases had the same level of risk. This would overestimate the maximum total risk.
Variations on this method to more closely model the differences between the diseases might also be
possible depending upon data available.
6.65 Dr. Wooldridge additionally noted that it may be (for example due to
immunocompromisation) that one disease pre-disposed to another. The effect of this might be
difficult to determine, as whilst this might increase th e risk of infection with a given disease, it might
also increase the total detection rate of disease at inspection. Where there were negligible disease
levels for both, this might be assessed as of little relevance either way.
6.66 It was accepted that where a group of di seases were qualitatively class ed as other than very
low risk, with no additional data, estimating the tota l risk would be difficult. But the initial proviso
above suggests the commodity would in that case be re jected in any event. Further, where a disease
was not low risk, then it was often likely to be because it was more prevalent and therefore more was
often known about it; if this was the case, there may well data available to quantify that risk.
6.67 Dr. Wooldridge summarized that, although it might not always be possible to fully estimate
the total risk when dealing with multiple diseases, it was likely to be possible to come to usable
conclusions about the probability of the overall level of risk.
Question 4. In the event a sanitary measure deals w ith several diseases, in terms of risk
assessment technique, does one need to assess th e likelihood of entry and establishment of each
disease agent separately, all in combination, or bot h? To what extent is it necessary to account for

different characteristics of the hosts and disease agents; of the use and disposal characteristics of the
products? Should the risk assessment also incl ude an assessment of the likelihood of entry,
establishment and spread of the disease agent from imports of products of other species known to
carry the same disease(s)? From a scientific/technical point of view, is it valid to undertake a risk
assessment either on a disease-by-disease basis or on a product-by-product ba sis, or could either
approach be adopted? What factors should be considered when making such a decision?
6.68 Dr. Burmaster presented the following notation in his response:
Nsa = number of fish species of concern in Australia
Nsc = number of fish species of concern from Canada
Nd = number of fish diseases of concern
Np = number of pathways of exposure
Ne = number of events to complete one pathway
Nw = number of different weather conditions of concern
No = number of other factors to include
Ntot = total number of variables/distributions to assess
Australia might say that it could not undertake a risk assessment for which it must develop probability
distributions for Ntot variables:
Ntot = N sa • Nsc • Nd • Np • Ne • Nw • No
Dr. Burmaster disagreed with such a position. In his opinion, New Zealand had shown how to reduce
the "dimensionality" of the problem to a manageable size by analyzing only certain combinations of
Nsa, N sc, N d, N p, N e, N w, and N o that were selected as the "most important" or "dominant"
combinations.
6.69 He also believed that New Zealand had dem onstrated how to reduce the dimensionality of the
problem of different characteristics of the hosts and disease agent, or of the use and disposal
characteristics of the products, to a manageable size. Dr. Burmaster indicated that the risk assessment
should possibly also include an assessment of the li kelihood of entry, establishment and spread of the
disease agent from imports of products of other species know to carry the same disease(s). As a
hypothetical example, fish disease D could arrive in Australia via the importation of frozen,
eviscerated, and beheaded salmon from Canada with probability P
c. The same fish disease could
arrive in Australia via the importation of live, ornamental goldfish from Malaysia with probability
P m. If a risk assessment were to show that P c < Pm, it would not make sense for Australia to ban the
importation of the salmon from Canada and not ban the importation of the goldfish from Malaysia.
6.70 When preparing the scope for a quantitative ri sk assessment, Dr. Burmaster considered that it
was essential for the risk assessor to cons ider both a disease-by-disease basis and a
product-by-product basis. He further observed that New Zealand had shown how to reduce the
dimensionality of the problem to a manageable size by focusing on certain key combinations of fish
species, pathways, events, etc. Along the way, the risk assessor(s) should use expert judgment to rank
the importance of different combinations of species, diseases, pathways, etc. as a way to determine
which combinations to quantify first. This was always an iterative process. As the risk assessment
developed, new insights would deve lop that would allow the risk assessors to understand and place
suitable emphasis on the most important combinations of species, diseases, pathways, etc.
6.71 With regard to the risk assessment technique, Dr. Wooldridge replied that, as detailed in the
previous question, one needed first to assess the likelihood of the unwanted outcome (here the

establishment of disease) separately for each disease. The outcome of this would determine the next
step in the assessment, as detailed previously.
6.72 Hazard identification would automatically involve the initial host characteristics. As
indicated in her answer to question 1, it was nec essary to outline the steps in the pathway from hazard
identification to unwanted outcome. This would include such things as inspection, processing etc. If
different disease agents had different probabilities of being detected, inactivated, surviving in waste
water, surviving whilst clinging to wrapping paper et c., then these characteristics must be taken into
account. For some of these aspects (for example dise ase detection) the specific host being considered
might also be relevant. For some of these characteristics (for example use of wrapping paper), use
and disposal characteristics of the product might be relevant. Whenever relevant, such factors must
be considered. In addition the susceptibility and di sease status of the potential hosts in the importing
country were relevant.
6.73 With regard to imports of other products of other species known to carry the same disease,
information on the existence of such products was important in two respects. First, a comparison with
other products might provide data necessary to asse ss the probability of exposure, transmission and
consequences of a given disease post-entry within a country or region. Secondly, the information on
the existence of such products was an important part of the overall risk analysis (as opposed to the
risk assessment) and should be sought as part of that analysis. If such products were known to exist, it
was relevant to the setting of acceptable levels of risk and therefore to the risk management part of the
whole risk analysis.
6.74 Dr. Wooldridge considered that whether a co mplete risk assessment of any other particular
product was required depended on the precise situatio n; in certain circumstances it might be enough
to demonstrate that a particular product containing a given disease agent, and subject to similar use
and disposal pathways, had b een imported regularly for many years with no detected disease
consequences.
6.75 The approach to a risk assessment depended upon the initial risk for which an assessment was
required. If the question asked was "What is the ri sk of an exotic disease being introduced with
product X?", then the hazard identification require d that all exotic diseases potentially present in
product X were identified, and the risk for each a ssessed. If the initial ques tion asked was "What is
the risk of introducing exotic disease Y into co untry Z?" then the hazar d was disease Y and the
potential pathways for import which would need to be considered included the initial identification of
all products which could potentially contain disease agent Y and were (or might be) imported into
country Z. Thus the crucial factor in the initial ap proach was the question asked (i.e. the risk to be
assessed). Either approach was perfectly valid de pendent upon the risk to be assessed. The exact
question asked depended on the underlying reasons fo r the risk assessment being undertaken and was
likely to be a risk management decision, although input from the risk assessor was frequently sought.
Question 5. Australia contends that one cannot compa re the risk posed by other aquatic animals
or products hosting any or all of the same disease agents with those posed by uncooked salmon in the
absence of a risk assessment for those other aquatic animals or products. What is your view?
6.76 Dr. Burmaster referred to his answers to Question 4, above.
6.77 Dr. Wooldridge recalled her answer to question 4, i ndicating that there were circumstances
where it was valid to compare the risk posed by other aquatic animals or products hosting any or all of
the same disease agents with those posed by uncooked salmon, even in the absence of a risk
assessment for those other aquatic animals or products . In any risk assessment, the more information
available the less uncertainty in th e final result. A full risk assessment for these other products might
well markedly reduce uncertainty in the risk assess ment under consideration; less than a full risk
assessment was likely to re duce uncertainty by a lesser amount. Nevertheless such information as

was available might be adequate to reduce uncertainty to negligible levels for a given situation under
consideration; much depended upon the level of similarity. Such information should not be ignored.
Question 6. Canada contends that for any given disea se agent, the consequences of the disease
becoming established in an importing country would be the same regardless of the original imported
source. In your view, is this statement technically/scientifically correct?
6.78 Dr. Burmaster responded that the statement was correct; he could not think of a
counter-example to this principle.
6.79 Dr. Rodgers replied that this statement was proba bly generally correct, although there were
degrees of severity for some disease agents and th e consequences of disease establishment could vary
depending on the nature of the pathogen and th e genetic basis of the indigenous species. The
consequences might be limited de pending on the efficiency of the responsible monitoring service and
subsequent early detection. The presence or ab sence of a susceptible host species and unfavourable
local conditions might also limit the spread, since th e death of only a few fish could go unnoticed.
The costs of control or eradication would vary too for the same reasons. The nature of the original
import would have a bearing on the possible con sequences because the risk s for dead (processed)
product would be different compared to that from live fish imports. The economic consequences
might also be different, since there would be a potential negative effect on the local industry following
the introduction of highly competitive cheaper fish product from a guaranteed aquaculture source. On
the other hand, a finite resource, such as wild ocean-caught fish, might have less impact because it
might not be able to compete as aggressively in te rms of cost or quality. This of course might occur
the other way round depending on the overheads attached to bringing each commodity to the market.
6.80 It was also relevant to consider that f actors other than the presence of a pathogen were
important in the consequences of disease entry, b ecause some diseases were more serious in certain
areas than in others (e.g. infectious haematopoietic necrosis (IHN), V. ordalii and Piscirickettsia
salmonis). On the other hand, certain diseases only o ccurred in a limited area, such as infectious
salmon anaemia (ISA) in Norway, Oncorhynchus masou virus in Japan, epizootic haematopoietic
necrosis (EHN) virus in Australia and Ceratomyxa shasta on the Pacific northwest coast. It might be
that these diseases could not establish themselves in other regions because the necessary combination
of environmental factors, susceptible species and husbandry practices did not exist elsewhere. The
opposite might also be true in that they could b ecome very successful at establishing themselves in a
new environment and be extremely virulent. The reason for their current "containment" might rely
partly on efficient monitoring and subsequent m ovement controls and partly on the fact that
development of aquaculture with the exact cond itions necessary for their establishment had not yet
occurred in other areas or countries.
6.81 Dr. Wooldridge replied that once a given disease was established country-wide in an
importing country, the consequences from that point on would be the same whatever the original
imported source or manner of establishment. However, any regional variation in disease
establishment might conceivably affect the conseque nces, in particular the short to medium term
consequences, and regional variation in disease estab lishment might be source-related. Long-term
consequences would converge if the disease then became established country-wide.
6.82 This could be illustrated by assuming that Product A, containing agent K was imported into
region W of country Z, but the product had no furt her widespread distribution in that country.
Region W contained no susceptible animals of ec onomic importance, although it did contain
susceptible animals of no economic importance. One possible consequence was that disease K
became established locally in Region W of importing country Z. In this scenario there were short-
term biological consequences but no short-term ec onomic consequences. Given these circumstances
it might also be an undetected consequence.

6.83 To continue the example, one could assume that Product B, a different source but also
containing disease agent K, was imported only into Re gion X of country Z, a region where there were
susceptible animals of economic importance. Lo cal establishment of disease K would then most
probably result in both short-term biological and eco nomic consequences. That is, given a different
product source with a different import distribution, some of the short-term consequences of disease
establishment would be different because the manner of initial establishment was different. Whether,
given time, the disease would then spread from either region to become established country-wide
would depend upon many country specific factors incl uding, for example, animal migration patterns,
agent virulence, climate, geographical barriers, hu man working patterns and so on. Therefore, when
using information derived from the importation of ot her products or products from other sources in a
current risk assessment, information on the ubiquity and history of that comparison import was of
particular relevance.
The distribution and transmission of fish diseases
Question 7. Which disease agents (or strains of disea se agent) have been identified as present in
Canadian (i) adult, wild, ocean-caught Pacific sa lmon; (ii) adult wild freshwater-caught Pacific
salmon; (iii) adult Pacific Salmon cultured in seawa ter on the Pacific coast; (iv) adult Atlantic
salmon cultured in seawater on the Pacific coast; (v) adult Atlantic salmon cultured in seawater on
the Atlantic coast? Please comment on the respon ses provided by Australia and Canada in this
regard and in particular, the discrepancies in the answers provided by parties (7 October submissions
"Responses to Questions", Question 2). In your vi ew, what degree of scientific confidence is there of
detecting the occurrence of diseases or disease agents given existing met hods of monitoring and
surveillance?
6.84 Dr. Rodgers responded that some diseases reported to occur in the above categories include:
(i) adult wild ocean-caught Pacific salmon: bacterial kidney disease (BKD), Kudoa
thyrsites, Parvicapsula sp., plasmacytoid leukaemia (marine anaemia);
(ii) adult wild freshwater-caught Pacific salmon: BKD, Ceratomyxa shasta , enteric
redmouth disease (ERM), flexibacteriosis, furunculosis, infectious haematopoietic
necrosis (IHN), Loma salmonae, plasmacytoid leukaemia (marine anaemia),
proliferative kidney disease (PKD);
(iii) adult Pacific salmon cultured in seawater on the Pacific coast: BKD, Parvicapsula
sp., piscirikettsiosis;
(iv) adult Atlantic salmon cultured in seawa ter on the Pacific coast: IHN, pancreas
disease (PD), piscirikettsiosis, viral haemorrhagic septicaemia (VHS):
(v) adult Atlantic salmon cultured in seawater on the Atlantic coast: BKD, ERM,
furunculosis, infectious salmon anaemia (ISA), Vibrio salmonicida.
Dr. Rodgers noted that he had not been able to undertake a complete literature survey for each disease
in each of the above categories due to the time ava ilable to respond to the questions. Neither had it
been possible, for the same reason, to solicit a dditional information, in the form of personal
communication, directly from other sources. Consequently, the above list of diseases was not
exhaustive and it had not always been possible to id entify which maturity state any particular disease
had been isolated from (i.e. juvenile or adult). In addition, the identification of a particular disease
agent did not imply that it occurred regularly, si nce only an occasional occurrence may have been
reported in the literature. Other diseases, such as some parasitic (e.g. protozoal, etc.) or bacterial (e.g.
vibriosis) conditions, occurred on a more global scale and would be expected to be ubiquitous.

6.85 There were discrepancies in the responses from both countries in regard to the question
concerning the presence of certain disease agents in Canadian salmon. The answer from Canada was
more detailed in the sense that it further subdivided the categories of salmon into the above five
groups. As a result, this was more accurate, useful information and consequently had probably led to
the majority of differences betwee n the two responses. For instance, the presence of furunculosis in
wild-caught Pacific salmon was acknowledged by both countries but Canada qualified the answer by
stating that it did not, however, occur in ocean caught fish, only in freshwater caught fish and cultured
stocks. The same was true for enteric redmouth disease, which Canada contended did not occur in
ocean caught Pacific salmon, nor in farmed salmon (Atlantic and Pacific species) on the Pacific coast.
6.86 In other responses Australia indicated un known or uncertain presence, due to lack of
definitive scientific work or difficulty in detection, by the use of a question mark (i.e. Yes? or No?).
In all these cases, Canada supplied a definitive "yes" or "no". The main discrepancies related to
conflicting responses concern the presence of vibriosis ( V. anguillarum and V. ordalii) in wild-caught
Pacific salmon, Pacific salmon anaemia virus (E IBS) in Pacific salmon, viral haemorrhagic
septicaemia (VHS) in farmed Atlantic salmon, proliferative kidney disease (PKD) in wild-caught
Pacific salmon and infectious salmon anaemia (ISA) in farmed Atlantic salmon on the east coast.
Canada specifically stated that EIBS and PKD were not known to occur in any of the five categories
of salmon. Although there were a few reports in the scientific literature of these two diseases
occurring in Pacific salmon in Canada, it was most pr obable that they referred to juvenile fish rather
than adults and consequently the statement that they did not occur in adult fish would be true. As
regards vibriosis in wild-caught Pacific salmon, the condition was likely to be widespread in the
marine environment but in this particular case it was not clear which specific references had been
used to prove or disprove this point. The occurre nce of VHS in Canadian Atlantic salmon, which was
not mentioned in the Australian response, represen ted 1995 published information which presumably
the Australian case was not aware of at the time. The presumptive diagnosis of ISA in Canadian
farmed Atlantic salmon was verbally reported in an international conference of fish pathologists in
September 1997, but the current status of ISA was not listed by Canada in its responses to questions.
However, this was perhaps not surprising since it was an addition to the Australian Final Report (in
place of Kudoa thyrsites) and appeared for the first time in the responses to panel questions.
Therefore, it was most likely that Canada was unaware that it had to comment on the current status of
this disease.
6.87 Dr. Rodgers observed that there was mu ch reliance in both submissions on personal
communications with respected fish pathologists and these should be accepted at face value, since it
was not possible to corroborate all this information within the current time frame. However, such
information was usually based on more recent da ta and was usually unpubl ished, although it could
contain an element of subjective opinion and assu mption. The Canadian information was broken
down into more relevant groups, since they had greater access to data from research projects,
veterinary reports and monitoring and surveilla nce programmes, which were not always readily
available to the general scientific community. Co nsequently, this should represent the most accurate
up-to-date picture for the diseases of concern, sin ce information in the published scientific literature
could be quickly out of date and many histor ical published reports were not followed up by
subsequent more recent studies.
6.88 The degree of scientific confidence in diseas e detection with existing methods of monitoring
relied on the lowest limits of detection for each sp ecific test or series of identification methods.
Currently, there were some difficulties with the isola tion of some fish viruses (e.g. PD, ISA, etc.) or
bacterial strains (e.g. the lengthy incubation time for Renibacterium salmoninarum , the causal agent
of BKD). In addition, there was a cut-off sensitivity point for most diagnostic methods which leads to
the carrier state being very difficult to detect, ex cept with the most sensitive of tests (e.g. PCR).
However, even these tests had limits of sensitivity, which were albeit very low, and they did not
always rely on culture as a prerequisite for iden tification. Nevertheless, these deficiencies in
sensitivity for existing methods were generally accep ted in terms of both their supportive science

(pending improvements) and the legislative policies th at stipulated their use in regular surveillance
programmes.
6.89 Regardless of the reason for carrying out a disease examination there was a need for some
form of standardized sampling methodology whic h would allow a reasonably accurate assessment of
the health status of a particular stock to be made. While local conditions in respect of the cultured or
wild species and the presence of specific diseases might vary considerably, th e principles of such a
sampling methodology tended to re main constant. For a correct disease diagnosis it was often
necessary to demonstrate the presence of the pa thogen by culture, followed by some form of
confirmatory serological test. However, there we re certain measures that could be employed to
increase the chances of detecting the presence of a pa thogen. For clinical outbreaks it was usually
prudent to sample moribund fish exhibiting clinical signs but at the same time selecting certain target
tissues. Testing fish with the minimum or abse nce of symptoms (e.g. the "asymptomatic carrier"
state) would normally be biased towards any fish with possible clinical signs, selecting the correct age
of fish (e.g. at least one-month old fry in the case of infectious pancreatic necrosis (IPN) or screening
five-month old fish for whirling disease) and sampling during periods when the disease was most
likely to be detected (e.g. February-April in Europe for BKD). Examination of fish with no suspicion
of disease for screening purposes would also consider these factors but in addition would sample a
sufficient number of fish for effective sampling. This number was usually based on the work of
Ossiander and Wedemeyer (1973), as stipulated in the OIE Diagnostic Manual for Aquatic Animal
Diseases. This study indicates the minimum sample size for each lot of fish that provides a 95 per
cent confidence of including infected specimens in the fish sampled, assuming a minimum prevalence
of infection equal to or greater than 2 per cent, 5 per cent or 10 per cent. For instance, 150 out of
100,000+ fish need to be sampled at the 2 per cent level. This is reduced to 30 out of 100,000+ fish at
the 10 per cent level. Testing for statutory pur poses was generally conducted at the 95 per cent level
of confidence with an assumed incidence of disease of 2 per cent. Occasionally, there might be
justification for increasing the level of confidence fro m 95 per cent to 99 per cent (i.e. 225 fish at the
2 per cent level) for a particular examination. Ho wever, any subsequent increase in sample size gives
a negligible increase in the statistical probability of finding an infected specimen.
6.90 Despite attempts by various international organisations, such as EIFAC, FAO and OIE, to
discuss the possibility of producing a uniform system of monitoring, none really existed on a world-
wide scale. Individual countries (e.g. Australia, Canada and the United States) or whole trading
blocks, such as the European Union, had develope d their own baseline rules relating to importations
and these were well formed for those countries which had a heavy involvement in aquaculture or had
an important sport fishery. In this context the receiving country or trading block tended to set the
conditions of importation.
6.91 Dr. Rodgers noted that one other aspect to c onsider was that regularly tested stocks were
normally considered as a lesser risk than occasionally, or untested stocks or products, since regular
monitoring provided a background database of info rmation over time. For instance, it would be
considered that ova from wild salmonids would pr esent a greater disease risk than ova from farmed
stocks since the latter could be tested regularly throughout their lifetime. Estimates of prevalence data
were usually based on surveillance information obt ained from fish health authorities in potential
exporting countries but such data were generally limited to those countries that had statutory
monitoring in place. This type of data, however, was actually designed to overestimate the prevalence
of infection in commercially harvested fish, since the monitoring programme targeted fish from which
an infectious agent was most likely to be isolated , such as spawning fish, fry or fingerlings and fish
exhibiting signs of infectious disease, as mentioned above. Unfortunately, this was rarely the case for
wild populations of fish because regular monito ring programmes did not normally exist, unless
diagnosis was related to the occurrence of large, noticeable mortalities. However, sampling returning
anadromous salmonids in their freshwater phase w as occasionally the exception. Post-harvesting
testing for disease in fish destined for human consumption was very rarely undertaken.

Question 8. What aquatic animals, other than salmonids, are known to be carriers of any, several
or all of the disease agents subject to this dis pute? Please comment on the responses provided by
Australia and Canada in this regard (7 October s ubmissions "Responses to Questions", Question 3).
Would the epidemiological factors relevant to disease transmission be the same in all cases?
6.92 Dr. Rodgers replied that it had not been possible to undertake a comprehensive literature
search to determine which aquatic animals, other th an salmonids, were known to be carriers of any,
several or all of the disease agents subject to this dispute. However, an examination of the lists
provided by both Australia and Canada indicated th at they were comprehensive and authoritative.
The list from Australia tended to be more general in content and used phrases such as salmonids,
cyprinids or a wide range of salmonids, whereas th e list from Canada was more detailed since it listed
the relevant species separately. However, the Ca nadian list was incomplete because it did not deal
with all the diseases, although the original ques tion concerned "... any, several or all of the
diseases ..." and there did not seem to have been a sp ecific requirement to detail all species for all the
diseases. Nevertheless, since the Canadian list did not include Piscirickettsia salmonis ,
Renibacterium salmoninarum (BKD), Vibrio ordalii , herpesvirus salmonis type 1, Pacific salmon
anaemia virus, salmon leukaemia virus, salmon pancreas disease virus (PD), Enterocytozoon
salmonis, Loma salmonae , Ceratomyxa shasta , Henneguya salminicola , Myxobolus cerebralis ,
Parvicapsula spp., proliferative kidney disease (PKD), rosette agent and infectious salmon anaemia
(ISA), the Australian list was more useful in this respect. Neither list included Kudoa thyrsites ,
which to all intents and purposes was widely distributed and had a broad host range.
6.93 Disease transmission combined many biological, behavioural and environmental factors that
were interrelated. The epizootiological factors relevant to disease transmission would not necessarily
be the same for each disease, since they were complex and numerous, although the general aspects
were common. Fish diseases manifested themselves as a result of a variety of circumstances, such as
genetic background, nutrition, stress, injury or cohabitation. The relationship between disease
epizootics among fish and fish stocking densities was important, since overcrowding of fish was often
followed by infections of opportunist bacteria, fungi or parasites. Non-infectious disease that
occurred as a result of fish culture mis-management could also be prevalent in these circumstances.
Some fish pathogens were a cons tant and natural part of the environment, usually without causing
disease problems and mortality (e.g. certain parasites) . There was a unique relationship between fish,
their pathogens and their environment which meant that a balance normally existed between the three
factors, with the fishÿs immune system playing an active role in maintaining this balance. However,
if there was an alteration in one or more of the environmental characteristics then there might be a
shift in the balance to the benefit or detriment of either the fish or the pathogen. Another relevant
disease-causing factor was the introduction of a potential pathogen into an already stable
environment. The introduction of different types, strains or novel pathogens could upset the natural
balance of a fish population. Indigenous fish deve loped a degree of immunity to relevant pathogens
in their environment but they may never have encountered new strains.
6.94 The reasons for a disease outbreak were va ried, representing complex interactions between
the host and the disease-causing situation. In the cases of host-pathogen interactions, the onset of
disease represented a decrease in the resistance of the host such as during reproductive stages or due
to environmental stress, poor husbandry conditions, in conjunction with an increase in numbers and/or
virulence of the pathogen. However, it was not clear what was the maximum number of cells which
constituted a genuine infection, since there was a bi g difference in the number of cells required to
establish clinical disease in aquatic animals. Th is might range from 1 (e.g. crayfish plague) to 100
(e.g. furunculosis) or more (e.g. BKD).
6.95 Dr. Rodgers stated that it was generally accep ted that four major groups of disease might be
identified in terms of epizootiology. These included sporadic diseases, which occurred sporadically in
comparatively few numbers of a population; epizootics, which were large-scale outbreaks of
communicable animal disease occurring temporarily within limited geographical areas; panzootics,

which occurred over large areas; and enzootics, wh ich persisted or re-occurred as low level outbreaks
in certain areas.
6.96 It had been suggested that dense populations of fish would maintain a given level of diseased
individuals, regardless of whether the populations we re shoals in the sea or aquacultured stocks.
However, there was a generally accepted lack of in formation about the occurrence of disease in wild
fish. Most studies related to the potential effect s of pollution on free-living marine fish and the
incidence of disease in returning anadromous sal monids. Much less information was available on
disease transmission between wild and aquacultured fish and vice versa.
Question 9. The 1996 Final Report (as well as its earlie r drafts) only deals with wild ocean-
caught adult Pacific salmon. In your scientific/technical opinion, do any imports of aquatic animals
or aquatic animal products, other than salmonids, in to Australia entail the same (or even higher)
risks with respect to the introduc tion of the identified diseases as those that would arise from the
import of uncooked salmon from Canada (either on a disease-by-disease basis or in an overall
manner)? Please explain the basis for your opinion.
6.97 Dr. Rodgers replied that the importation of several other groups would pose a potential risk
of disease introduction that would probably be at least as high, if not higher, than that posed by the
importation of uncooked salmon from Canada. These groups would include any live ornamental fish,
bait fish and trash fish for feeding aquacultured species. It was not possible to predict though, without
an import risk analysis study, which of these represented the highest risk. However, importation of
live fish for stocking of open waters containing indi genous fish, and the feeding of trash fish or bait
fish directly to aquacultured species as a feed s upplement or substitute would probably be the most
important in terms of risk. Escapees from a closed system into an open waterway could also be a
problem. The arrival of furunculosis into Australia via imported goldfish or into Norway via salmon
smolts and the first reported outbreaks of VHS in turbot from Scotland and Ireland helped to support
the hypotheses of live fish importation and feeding respectively.
6.98 A recent risk analysis report (October 1997), by the Western Australian Fishing Industry
Council on the practice of importing frozen fish as bait, considered the possible introduction of
viruses that could have an impact on the rock lobste r industry. The resulting analysis was not able to
distinguish between a very low risk of introduction and no risk at all. The report stated that the
analysis could not conclude that there was no risk of introducing an exotic disease only that the risk of
introducing an exotic disease that was capable of pr oducing a large scale fish kill was either very low
or did not exist at all. In conjunction with this conclusion the report identified a series of risk
reduction measures that could be implemented for frozen bait.
Question 10. Canada contends that for a given disease agent, the likelihood of disease
establishment is higher for imports of whole, un eviscerated bait fish and for live fish known to host
that disease agent than it is from imports of unc ooked salmon for human consumption. In your view,
are these contentions corroborated by scientific/techni cal evidence? If not, what factors would be
needed to substantiate those views?
6.99 Dr. Burmaster responded that this seemed highly likely to him, but he had no independent
information to support or refute such an opinion.
6.100 Dr. Rodgers replied that it was probably true to say that for a given disease agent, the
likelihood of disease establishment was higher for imports of whole, non-eviscerated bait fish and for
live fish than it was from imports of uncooked salmo n for human consumption. However, the actual
level of risk would be important and the opinion e xpressed in Question 9 was also relevant here. It
was also a fact that there were complex processes that lead to di sease establishment (see his response
to Question 8). In addition, the final destination of a particular consignment would have an impact on
potential disease establishment. For instance, a lic ensed, carefully controlled import of a live fish

species destined to be confined fo r research purposes would entail a very much lower risk than open
water stocking. The same considerations would apply to processing establishments, since
uncontrolled waste discharges could be a factor in possible disease transmission (e.g. ISA in Norway).
It was also worth noting that comprehensive controls that prohibited the importation of certain species
and products or failed to differentia te adequately between an ornament al species and a wild fish with
the same taxonomic name might promote an illegal, difficult to control, underground trade. This had
probably been a factor, for instance, in the introducti on and spread of spring viraemia of carp in the
United Kingdom in recent years, although the elevat ed value of certain cyprinid species for sport
fishing might also be important in such cases.
Question 11. In their 7 October "Responses to Questions ", Question 3, both Canada and Australia
identify, for diseases subject to the dispute, non-sa lmonids which may also be carriers of these
diseases. However, Australia seems to contend that a separate risk analysis may be necessary for
these non-salmonids. In your view, can the risks represented by these non-salmonids be compared to
those which arise from salmonids? If one p resumes that the risks posed by salmonids are
unacceptable, are there any scientific or technical rea sons for not making the same presumption with
respect to risks of the same disea ses from non-salmonids? What factors should be taken into account
in comparing the risks of entry, establishment or spread of a disease for one or several disease agents
know to be carried by salmonids as well as non- salmonids? Can the data and findings contained in
the Australian Final Report dealing with wild oce an-caught adult Pacific salmon be validly used in a
risk assessment for the four other categories of salmon from Canada (see Question 7)?
6.101 Dr. Burmaster recalled his answers to Question 4. He believed that the risks represented by
non-salmonids could be compared to those which ar ose from salmonids. With regard to making the
same presumption of the acceptability of the risks posed by salmonids and non-salmonids for the
same disease, he indicated that it all depended on the particular evidence. As discussed in his answer
to Question 17, below, a risk assessor could answ er this question by developing and combining
probability distributions for the variables flowing from the seven conceptual steps identified by New
Zealand. To identify what factors should be take n into account in comparing the risks of entry,
establishment or spread of a disease for one or se veral disease agents known to be carried by
salmonids as well as non-salmonids, a risk assessor must develop and combine probability
distributions for the two (or more) scenarios. Dr. Burmaster did not believe that the data and findings
contained in the Australian Final Report dealing with wild ocean-caught adult Pacific salmon could be
validly used in a risk assessment for the four other categories of salmon from Canada because the
1996 Final Report did not meet the minimum standa rds for a risk assessment. New Zealand's final
risk assessment did meet the minimum standards for a risk assessment and, as such, might contain an
answer acceptable to the parties in this dispute. If the parties could not agree on the findings in New
Zealand's Final Report, he did not think that the current dispute could be resolved without a new
quantitative risk assessment using probabilistic methods.
6.102 Dr. Rodgers indicated that the basic underlying risk assessment would be the same but a
good risk assessment model would be modular and ther efore flexible enough to take account of any
additional or different risks posed by non-salmonids. Although the risks might be compared, any
additional risks, or those considered for salmonids that would be inappropriate for non-salmonids,
would mean that a separate risk assessment would be necessary for each category of import. In
addition, some of the diseases of concern are salmonid diseases and as such it would be inappropriate
to transfer the data to a risk assessment of non-salmonids. Howeve r, non-salmonids could be carriers
of some of the diseases of concern and therefore act as agents of dissemination. Essentially, although
some data could be used to assess the risk factors, the outcome of an assessment might be different.
This would apply to both qualitative and quantitative risk analysis. He noted that the points he made
in response to Question 1 concerning the minimum requirements of a risk assessment were also valid
here.

6.103 The same would be true for the four othe r categories of salmon fro m Canada, although these
were closer in taxonomic concept and other considerations. Some of the data and findings contained
in the Australian Final Report dealing with wild ocean-caught adult Pacific salmon could be validly
used in a risk assessment for the four other cate gories of salmon. However, there were additional
factors to consider for aquacultured species and wild freshwater-caught species, as opposed to wild
ocean-caught fish. These would include the presence of known vectors (and alternative host species),
the access of anadromous fish to water supplies, protected water sources, purchase of ova/fry/other
fish/fish products, sharing equipment with other fa rms (vaccination, grading machines, etc.), sharing
staff with other farms, density of farms locally, density of infected farms locally
(introduction/reintroduction of fish), distance to sea, number of salmonid rivers locally, age of
farm/hatchery, annual production, type of feed (cold processing, supplementation with trash/wild
fish), the prevalence of residual infection in the area and the type of management practices
undertaken.
6.104 Dr. Wooldridge observed that she had answered the majority of points in this question within
her answers to other questions. Much of it con cerned risk assessment technique. The risks from
salmonids and non-salmonids could be compared by comparing available data pre-entry data plus
potential exposure pathways. The decision on whethe r risk were acceptable or not depended on many
factors but if the risks were assessed as being (or are otherwise believed to be) at a similar level then
she believed they must be either equally acceptabl e or equally unacceptable regardless of the source.
The comparison should take into account all availabl e information. Any data used in one risk
assessment which was valid in another assessment coul d be used in that assessment also. This would
in such circumstances most probably include data from post-entry exposure onwards, and possibly
pre-entry processing and inspection.
Question 12. Is evisceration an effective means of reducing the risk to a negligible level of each of
the identified diseases? (See summary table provided by Australia in its 7 October "Responses to
Questions", Question 13.) Would the effects of evisceration in terms of reducing the risk of disease
transmission be similar in all circumstances? Wh ich of the disease agents can be found in flesh
(muscle), remnant kidney tissue, bone, skin, gills, head, or blood? Do you know of specific cases
where diseases have been transmitted from one area to another by imported eviscerated fish? From
imported eviscerated salmonids? Please identify and describe these cases.
6.105 Dr. Burmaster doubted that evisceration alone reduced the risk to a "negligible" one, but
New Zealand's Report showed that evisceration in co mbination with other factors reduced the risks to
acceptable levels.
6.106 Dr. Rodgers responded that evisceration was probably an effective means of reducing the
risk to an acceptable level in certa in of the identified diseases. The level of reduction would largely
depend on the tissue location of the disease causing agent and the effectiveness of the evisceration
process. Many of the disease agents of concern had the potential to remain at some level after
evisceration, particularly those that might be concentr ated in the head, brain, gills, musculature, heart,
kidney remains and skin or external surfaces. Di fferent pathogens could target different organs,
although since viruses were intracellular they were pa rticularly difficult to remove. Certain of the
bacterial disease agents could also remain, especially those that caused lesions in the musculature (e.g.
Aeromonas salmonicida ) or were harboured in the kidney (e.g. Renibacterium salmoninarum ).
Evisceration would not remove all the parasites either , particularly those that appeared in the blood,
on external surfaces or as cysts (e.g. Loma salmonae, Henneguya salminicola and Kudoa thyrsites).
In addition, infected host individuals might serve as “carriers” or “reservoirs” of a disease agent
without being demonstrably affected themselves and they therefore acted simply as vehicles of agent
transmission. At such low levels they were very difficult to detect and therefore to know which
particular tissues are affected.

6.107 Dr. Rodgers added that he did not know of any specific cases where fish diseases had been
transmitted from one area to another by imported eviscerated salmonids or other eviscerated fish.
6.108 Dr. Winton stated that the FDC was unanimous in its belief that evisceration was an effective
method to greatly reduce the risk of transmission of the notifiable fish disea ses regardless of their
source (hatchery or wild). Certainly for very stab le pathogens (e.g. those with spore stages), there
might be some residual infectivity in the flesh or heads of highly infected animals (typically this
would be more likely to happen in fish harvest ed from hatcheries where a disease outbreak with
attendant mortality was occurring), but the level of in fectivity in the eviscerated animal could usually
be expected to be considerably less than that presen t in viscera. The FDC considered that the risk of
transmission of fish diseases by movement of evis cerated fish products was probably lower than the
risk from certain other activities (movement of aquarium fish, ballast water in ships, etc.) and thus did
not justify trade restrictions. Recently, the US government changed its regulations to exempt
eviscerated fish from requirements for certificati on under US Title 50 based upon this same concept.
Several other countries (e.g. the European Union a nd New Zealand) had also adopted this approach
and reduced or eliminated disease control require ments for aquatic animals destined for human
consumption.
6.109 Dr. Winton indicated that he knew of no case ( salmonids or otherwise) where eviscerated fish
had been shown to result in the importation and establishment of an infectious disease in fish;
however, Australia was correct in that it might be di fficult to find such cases if they occurred in wild
fish. Nevertheless, where expansions of the geogr aphic range of a fish disease had been documented,
they were most often associated with increased su rveillance efforts or the application of more
sensitive diagnostic methods. There were also several documented cases where a fish disease had
been introduced into an area previously known to be free of the disease through importation of live
fish or eggs for rearing in hatcheries (infectious hematopoietic necrosis virus was a good example)
and even a few diseases that were introduced by importation of unevi scerated fish for use as food for
fish reared in net-pens (viral hemorrhagic septicemia virus in turbot in the United Kingdom).
6.110 Conversely, there were also examples where fish that potentially contained high levels of an
infectious agent had not resulted in transmission of disease if eviscerated. For example,
approximately 80 per cent of all rainbow trout produced in the United States came from the Hagerman
Valley of Idaho where fish in virtually 100 per ce nt of the farms had been exposed to, or were
infected with, infectious hematopoietic necrosis virus (IHNV). While there were perhaps more than a
dozen documented cases of IHNV being spread by moveme nt of infected fish or contaminated eggs,
there was not a single case where transmission of IH NV was associated with fresh eviscerated fish for
human consumption in spite of the fact that la rge numbers of these were sold in supermarkets
throughout the United States within 24-48 hours of slaughter. Similarly, Piscirickettsia salmonis was
present in many farmed salmon in Chile and infec tious salmon anaemia was present in several salmon
farms in Norway. No case of transmission of either agent to fish in any other part of the world had
been documented in spite of the fact that thousands of metric tons of such products were shipped fresh
throughout the world each year in the form of iced, eviscerated product.
6.111 While there were few actual studies on effici ency of transmission of a fish disease by various
types of products, an unpublished study was conduc ted in Dr. Winton's laboratory in collaboration
with the Clear Springs Trout Company in Idaho wher e nearly all fish were infected with IHNV at
some level during various stages of rearing. Fresh fish were removed directly from the processing
area and sampled for virus. They found no evidence of virus in the flesh of processed fish by either
cell culture or by the polymerase chain reaction a ssay. Some of his colleagues had also conducted
tests looking for IPN virus in Atlantic salmon im ported fresh into the United States. These studies
remained unpublished as no virus was found. In a few limited surveys of ocean-caught salmon, both
the incidence and intensity of infection of a give n disease was typically lower than found among fish
reared at hatcheries where the disease was enzootic.

Question 13. With respect to the diseases at issue, what is the difference in effectiveness, with
regard to reducing the risk of disease transmission, of evisceration as compared to heat treatment of
the product? as opposed to full cooking of the flesh of the product?
6.112 Dr. Burmaster observed that no method was risk fr ee. Cooking reduced the risk as a
function of time, temperature, and pressure. L ong ago, food technologists prepared and published
tables showing the logarithmic efficiencies of differe nt heat treatments (such as blanching, parboiling,
or canning). He was unaware of any "hard" data to compare the effectiveness of evisceration to the
effectiveness of cooking or canning. New Zeala nd's risk assessment concluded that a regulatory
program that included evisceration as one step reduced risks to de minimis values.
6.113 Dr. Rodgers responded that he could not provide a co mplete answer to this question because
comparative data for evisceration, heat treatment and full cooking were scarce. However, a published
study (Whipple and Rohovec, 1994) on the effect of heat and low pH on selected viral and bacterial
fish pathogens had been undertaken. The study concluded that A. salmonicida , Mycobacterium
cheloni and the IHN virus were sensitive to a heat treatment of 65ºC for 15 minutes and 82ºC for
5 minutes. They were also sensitive to the fish s ilage process which used a pH of 4. In addition,
although more heat resistant, the IPN virus and R. salmoninarum would also be killed when
incorporated into fish silage and heated to 82ºC for 5 minutes after a 15 minute period at 65ºC. The
study was carried out in order to test the efficacy of procedures used for processing fish viscera to be
incorporated into fish diets. Full cooking shou ld, of course, completely eliminate such pathogens
providing the process was properly carried out. The only possible exception would possibly be a
spore-forming organism, such as Myxobolus cerebralis, the causal agent of whirling disease, although
there was some suggestion from the literature that th is would not survive at a temperature of 100ºC
for 10 minutes. Most of the other studies related to inactivation by heat were largely concerned with
incubation and cultivation temperatur es in artificial media, not to reduction of pathogen levels in
tissue.
Question 14. Which of the disease(s) or disease agents of concern, if carried by live fish, can be
detected by organoleptic examination? Which of th e disease(s) of concern, if carried by uncooked
salmon, can be detected by organoleptic examination?
6.114 Dr. Rodgers replied that in many cases the success of determining the presence of a
particular disease agent and subsequent diagnosis relied on an interpretation of all the available
information, including historical data, visual examination and tissue sampling. Unfortunately, no
single sign was indicative of a specific individual disease condition. Similarly, not all reported
clinical signs were present in every case of the disease.
6.115 Disease conditions were diverse and might elic it very varied response patterns in fish. The
pathology and outcome of individual infections we re the result of several factors including the
physiological and immunological status of the host, species, age, stage of sexual development and
nutritional status. Other properties included the water temperature, salinity, pH, pathogen numbers
and their location within the host. Under certain ci rcumstances fish might act as symptomatic carriers
and pass the infective agent to susceptible animals. Unfortunately, the symptoms and gross pathology
of many fish diseases were similar, and it could be difficult for even experienced fish pathologists to
distinguish between the different pathological cond itions, notably when two or more diseases might
be present. Common visual signs of disease among salmonids included dark skin colour, excess
mucus production (skin or gills), exophthalmia, distended abdomen, skin ulcers and petechial
haemorrhages at the base of fins, skin, gills or muscle. These might be encountered to varying
degrees in several disease conditions. In addition, spoilage organisms such as Alteromonas spp. and
Pseudomonas
 spp. (and others) produced distinctive odours following contamination during storage
and filleting operations. For these reasons, diagnosi s should not be made solely on the basis of
disease signs.

6.116 By way of example, Dr. Rodgers observed th at the following disease signs could be indicative
of several possible causal agents:
(a) Exophthalmia (many viral diseases such as IPN and IHN; bacterial diseases such as
BKD, ERM; parasitic diseases such as PKD; nutritional deficiency such as lack of
certain vitamins);
(b) Dark skin colour (viral diseases such as VHS; bacterial diseases such as ERM,
furunculosis; nutritional deficiency such as lack of certain vitamins; stress due to
poor water quality);
(c) Excess mucus production (skin or gills: parasitic infections in general;
environmental irritant);
(d) Distended abdomen (virus diseases in general; several bacterial conditions; fungal
infection; kidney malfunction; intestinal cestodes; nutritional imbalance);
(e) Skin ulcers (many different disease conditions);
(f) Petechial haemorrhages (skin or muscle: viral diseases such as VHS; bacterial
diseases in general; protozoan or crustacean parasites).
It was possible to isolate specific fish pathogens fro m apparently healthy fish without evidence of any
clinical disease. There were also many faculta tive fish pathogenic bacteria and viruses whose
pathogenicity depended directly on environmen tal quality and which in cases of decreasing quality
could lead to similar septicaemi as to those caused by specific fish pathogenic agents. Therefore the
identification of the pathogen was important, w ith disease diagnosis being a step-wise procedure
divided into a consideration of archival informa tion, general examination, collection of samples and
subsequent analysis for pathogen identification. Organoleptic tests might be a part of the general
examination but could not be relied on solely for di sease identification, although a visual examination
for grading purposes would identify unsightly looking fish (e.g. superficial damage, ulcers and
possibly extensive haemorrhaging). Such fish might not then enter the supply chain as a quality
product.
Question 15. Are you aware of any evidence of major disease spread with a significant impact on
salmon production (wild or cultured, including recreational fisheries)? In regard to new
introductions, to what extent is it feasible to identify the means/pat hway of the introduction of the
disease?
6.117 Dr. Rodgers replied that there had been several occurrences of disease spread with a
significant impact on salmon production. The most notable documented incidences concerned the
introduction of furunculosis in Atlantic salmon smolts and Gyrodactylus salaris on smolts into
Norway, from Scotland and Sweden, respectively.
6.118 A recent graphic example of possible disease spread in non-salmonids concerned the large
mortalities experienced in wild pilchards along the coast of South Australia and New Zealand. Frozen
pilchards imported from California, Chile, Peru an d Japan were fed to sea cage tuna in Australia,
resulting in an epizootic among pilchards that even tually spread along 6,000 km of coastline. A
herpesvirus was thought to be the cause of the mortalities, although this had not been proved
definitively. The involvement of imported baitf ish had also been suggested as a cause of disease
introduction of enteric redmouth in France from mi nnows. The isolated cases of VHS in turbot
recorded in Scotland and Ireland, linked to the feed ing of marine fish as a feed supplement, should
also be noted. Although these incidences referred to non-salmonids they served to indicate the
potential for disease spread in certain circumstances. The importation of ova had also been blamed

for the spread or introduction of diseases such as furunculosis, IHN, BKD and IPN into countries as
diverse as Sweden, Japan, China, Chile, Germany and Taiwan.
6.119 Scientific "detective work" was often the only solution available to identify the means or
pathway of introduction for a disease. Howeve r, the main problem was normally that the
manifestation of a new disease condition occurred afte r the initial causal event. This meant that there
was no source material to work with and an e ducated assumption, based on corroborative evidence or
circumstantial detail, was often necessary. Nevert heless, such conclusions were decided only after
collecting all the necessary data and eliminating unlik ely scenarios. This type of investigation would
normally be carried out by experienced teams and would be very time consuming. The proportions
and causes of the problem would have to be determined in order to discover whether there were any
external influences that could be assigned to any pa rticular introduction. The identification of the
pathway of an introduction might be a complex di agnostic problem that would involve collecting
information on environmental conditions, clinical signs, aetiological factors, possible transmission
routes, identification of any potential pathogen, authorised movement records and the possible
existence of illegal imports.
6.120 Dr. Wooldridge noted that risk assessments were originally developed precisely for the
assessment of potential risks which had not yet o ccurred and for which the potential pathways from
hazard to outcome had not been observed; for example, the risk of radiation release from new designs
of nuclear power station and, on the biological side , the risks of new pathogenic bacteria returning to
earth from space travel. In such cases identification of potential pathways from hazard to outcome
was thus an integral part of the assessment. Ther efore, with regard to new disease introductions, it
was perfectly feasible, and an integral part of th e risk assessment, to identif y potential pathways for
the introduction of disease. And in the assessment bei ng undertaken here, this part was likely to have
access to more relevant available information than in the "exotic" examples just quoted.
Question 16. Australia (in its 7 October response to Qu estion 10) has stated that there are no
reports on introduction of unwanted exotic diseases of fish through imports of product for human
consumption. Australia has suggested, inter alia, t hat this can be explained because of the difficulty
of recognizing -or establishing - any such occurrence, because many or all of the diseases of concern
occur endemically and because of lack of research. What is your view on these points? To what
extent, if any, are examples of disease transmission in terrestrial animals relevant to this case?
6.121 Dr. Burmaster agreed that there were no reports of introductions via imports of fish products
for human consumption. While it was usually not possible to "prove the negative" from the
"condition of no reports", the "condition of no repor ts" did allow one to put statistical bounds on the
probability of the unwanted event. In other wo rds, the "condition of no reports" did contain
information that a risk assessor could use to put bounds on the probability. He thus disagreed with
Australia's implicit argument that a "condition of no reports" supplied no evidence to a risk
assessment.
Question 17. What chain of events must be met for unc ooked salmon products to cause the entry,
establishment and spread of the identified diseases into Australia?
6.122 Dr. Burmaster broadly agreed with the seven concep tual steps identified in the Summary
(page 1) and again in the Introduction (page 3) of New Zealand's 1994 risk assessment report:
 - the disease must be present in the waters of origin;
 - the disease must be present in the partic ular fish caught (or the flesh mush have
become contaminated during processing);
 - the pathogen must be present in the imported tissues;

 - the diseased fish must pass inspection and grading procedures;
 - the pathogen in the flesh must survive storage and processing and be present in an
infectious dose;
 - the pathogen must be able to establish infection by the oral route or by the host being
bathed in it;
 - scraps of the flesh product must find th eir way into a susceptible fish host in
New Zealand or an infectious dose of pathogen must find its way into contact with a
susceptible fish host by some other means.
6.123 Dr. Rodgers observed that for uncooked salmon products to cause the entry, establishment
and spread of the identified diseases into Australia the following criteria would have to be met:
 - infection occurring in source stock;
 - the presence of significant numbers of pathogens;
 - no detection of disease on routine sampling of source stock;
 - survival of the pathogen in processed fi sh (e.g. after evisceration and/or heat
treatment);
 - survival of the pathogen in tr ansit (presumably chilled or frozen);
 - processing plant with drain to wate r source (in the destination country);
 - susceptible host fish at destination;
 - interaction with susceptible host fish;
 - pathogen to overcome host defences, possibly in a stressed host;
 - subsequent pathogen reproduction (possi ble necessity for intermediate vector);
 - favourable environmental conditions;
 - local and national dissemination of disease.
Essentially, the disease agent must be present in th e particular fish caught for processing, although
contamination during processing was also a possible but unlikely factor, and the pathogen must be
present in the imported tissues or products. In addi tion, the diseased fish/flesh must pass grading,
inspection and testing procedures. After harvesting, the pathogen in the flesh must survive the death
of the host, subsequent storage and processing, then still be present in an infectious dose. Finally,
sufficient infected flesh must find its way into the local environment or a susceptible fish host and the
pathogen must be able to establish an infection by the oral route or by contact.
6.124 Dr. Wooldridge noted that this question defined three potential outcomes; the entry of the
identified diseases into Australia; their subsequent establishment; and their spread. The question
(and therefore the answer given here) addressed only possibility, not probability.
Entry into Australia
6.125 For each of the diseases identified as a hazard, in order for it to enter Australia in uncooked
salmon products, either the disease agent must origin ate from the fish harvest or it must be introduced
as a contaminant at some point in the preparation and processing. If contamination occurred at any
point before processing which would render the pr obable total amount of agent non-viable, then it
need not be considered separately at the next stage.
6.126 Therefore, for entry to Australia, either:
 (a) the fish must contain the diseas e agent at the point of harvest; and
 (b) the disease agent must then remain present within the tissues selected for the
imported product, at the point of import. If only part of the fish were selected for

import (e.g. headless, eviscerated) then the agent must be present in that part selected.
If any examination of the fish were undertaken , either visual or otherwise, any agent
present must escape detection (detection assumed to lead to rejection).
or
 (c) the fish must become contaminated during the processing so far.
Then:
 (d) the agent must remain viable within th e tissues selected for the imported product, at
the point of import. Therefore any processing (e.g., freezing, thawing, chemical
application) must fail to render the agent non-viable.
or
 (e) the product must become contaminated with the disease agent after any final
processing before import.
Dr. Wooldridge noted that assessment of the pr obability of this occurri ng comprised a release
assessment, of which the elucidation of the chain of necessary events was an essential component.
Establishment
6.127 For each of the diseases identified as a hazard, in order for it to become established in
Australia from the import of uncooked sal mon products the agent must first enter Australia in
imported uncooked salmon products. That is, it must be present and viable at the point of import of
the product. However this was not in itself enough to enable establishment.
6.128 Given entry, then the chain of events n ecessary for establishment of the disease in Australia
required:
(a) the presence of susceptible animals (including fish); and
(b) the existence of possible exposure pathways from the product at the point of entry to
agent contact with a suscep tible species. There might be many potential exposure
pathways; and
(c) for at least one of the potential pathways the disease agent must remain present and
viable all the way through that potential expos ure pathway. Therefore for at least one
pathway all the following conditions must be met:
(i) any processing in the pathway (e.g., fr eezing, thawing, chemical application,
cooking) must fail to render the agent non-viable; and
(ii) any regulatory activity in the pathway designed to reduce the potential for
exposure (e.g. disposal method, siting of processing plant) must fail to render
the agent non-viable; and
(iii) any natural occurrence in the pathwa y which by its nature would tend to
reduce the potential for exposure (e.g. dilu tion, exposure to sunlight, lack of
necessary intermediate host) must fail to render the agent non-viable; and

(d) At the point of exposur e, conditions must be appropriate to enable successful
transmission of agent in an infectious form into the susceptible species. This would
be agent- and host-dependent; and
(e) At the point of exposure there must not only be viable agent present, but it must be in
a sufficient quantity to result in infection. This would be agent- and host- dependent.
Spread
6.129 For each of the diseases identified as a hazard, in order for it to spread within local fauna, it
first had to become established locally. However, this was not, in itself, enough to enable spread.
Spread might mean spread to other species than t hose initially infected or other geographical areas or
both.
6.130 Given local establishment, the chain of even ts necessary for the spread of disease required:
 (a) that the initial establishment of disease did not only occur within a dead-end-host
species (i.e. that transmission was possible from those initially infected at exposure).
For spread across species, requirements were:
 (b) other susceptible species in Australia; and
 (c) the existence of possible exposure path ways from the initially infected species to
others. These exposure pathways were subject to the same kinds of considerations as
in the previous section, though they would be different in detail; and
 (d) at the point of exposure, conditions must be appropriate to enable successful
transmission of agent from the initially infect ed to another susceptible species. This
would be agent- and species-dependent; and
 (e) at the point of exposure viable agent must be in a sufficient quantity to result in
infection of the host second species. This w ould be agent- and species- dependent. A
particularly susceptible initially infected species might allow for agent multiplication
thus allowing infection of a second, less susceptible species.
For geographical spread, requirements were:
 (f) the presence of susceptible animals to be more than just locally present; and
 (g) the presence of exposure pathways from lo cally infected animals to those in other
areas, with all the usual considerations plus , for waterway spread, the lack of natural
geographical barriers; and
 (h) the ability of the agent to survive in the environment encountered in other
geographical conditions (e.g. climate, presence of intermediate hosts, etc.).
Question 18. In the period between May 1995 and D ecember 1996, were there any advances in
scientific knowledge that would justify a change in the conclusions fr om the 1995 Draft Report to the
1996 Final Report?
6.131 Dr. Burmaster replied that he did not think so.
Question 19. Canada contends (First Submission of Canada, para. 175, Oral Argument of Canada, 9
September 1997, para. 92) that in the 1996 Final Report, Australia omitted significant information for

the estimation of risk that was in its 1995 Draft Report, including data on which to base estimates of
volumes of fish, prevalence of disease agents, quantiti es of waste and concentrations of waste. What
is your view on this point?
6.132 Dr. Rodgers responded that in parts the 1996 Fina l Report was less detailed than the 1995
Draft Report and to a certain extent the specific sect ion on qualitative risk analysis appeared to have
been largely replaced by a straightforward textual su mmary. There also seemed to be more detail in
the 1995 Draft Report in areas such as disease agent viability and infectious dose, although conversely
it lacked some information contained in the 19 96 Final Report (e.g. import country presence of
infection data). In addition, the 1995 Draft Re port presented some data in the form of a simple
literature review for sections such as histopathology and diagnosis. On balance the best features of
both draft reports should possibly have been combin ed to create a final analysis dealing with the
aspects of a qualitative risk analysis, leading to an estimation of the possibility of each risk factor
occurring. The 1996 Final Report put most emphasi s on the unknown, or poorly understood, factors
and the unique position of Australia, rather than accepting a low risk in conjunction with risk
management (reduction) factors. Accurate data on prevalence of infection, fish weight and waste
statistics, leading to an estimation of the disease ri sk per tonne of imported product, used particularly
in combination with actual historical data that showed no disease introduction for similar importations
elsewhere, was mainly valuable for a quantitative risk assessment. The more subjective approach of a
qualitative risk assessment did not necessarily make full use of such detail. Nevertheless, the
availability of such information, whether detaile d or not, should warrant its inclusion in either
scenario.
6.133 Dr. Wooldridge replied that it was precisely to facilita te the comparison of the information
used that in her opinion the layout of the risk assessment should have been similar in both the draft
and final document, and any change of data specifically indicated with the reason for the change. The
change in format and order made comparison much more difficult and time consuming. Nevertheless,
it was possible to identify data given in the 1995 Draft Report (for example the tables on pages 17, 24,
27, 29 giving data on fish, municipal waste water, etc.) which she was unable to find in the final
assessment, and which was potentially relevant to the conclusions from the qualitative assessment and
of potential use in a quantitative assessment.
OIE procedures and recommendations
Question 20. How are members of the FDC selected? Is membership of the FDC limited? How
many, and which, OIE members are represented on the FDC? Is a quorum needed for FDC
recommendations? How are members views taken into account?
6.134 Dr. Winton indicated that Members of the OIE Fish Diseases Commission were elected by
formal vote of the delegates of OIE Member Countries at the annual General Session. They served 3-
year terms and could be reelected. Candidates were nominated solely on the basis of their scientific
expertise and were expected to be completely free from the influence of either national or commercial
interests. There were currently 5 (formerly 3) elected members, listed below. Each was an
internationally recognized authority in diseases of a quatic animals and all of them worked at national
laboratories where they were either a senior resear cher or program director. In addition, the FDC
typically invited from 1-3 other participants. For example at the last FDC meeting in October 1997,
Dr. R. Subasinghe, Director of the International Fi sh Health Programs for the FAO in Rome attended
by formal agreement between FAO and OIE, and Dr. F. Berthe, research scientist from the national
shellfish laboratory in Tremblade, France (IFREMER) , attended by invitation of the FDC in order to
provide added expertise in shellf ish pathology. There were no formal procedures for voting or for
establishment of a quorum. In the years he had be en a member, all elected members attended every
meeting. Decisions were reached by consensus of the members after examination of scientific
evidence. The list of Members of the OIE Fish Diseases Commission at the 29 September-1 October
1997 meeting was the following:

Prof. T. Hästein (President)
Superintending Veterinary Officer in Fish Diseases
Central Veterinary Laboratory
Norway
Dr. C. Michel (Vice President)
Laboratoire de Virologie et d'Immunologie moléculaires
Centre de Recherches de Jouy-en-Josas
France
Prof. B.J. Hill (Secretary General)
Centre for Environment, Fisheries and Aquaculture Science (CEFAS)
United Kingdom
Dr. J.R. Winton
Research Team Leader
Western Fisheries Research Center
United States
Dr. K. Nakajima
Director of Pathogen Division
Fish Pathology Department
National Research Institute of Agriculture - Fisheries Agency
Japan
Question 21. Australia states that detailed minutes are not kept of meetings of the FDC where the
categorization of measures to be applied for a particular disease are discussed. Does the FDC
produce summary reports of these meetings? A re the FDC recommendations on disease guidelines
based on scientific evaluations or assessments? What is the scientific content of FDC
reports/records? What processes are under way in re gard to the categorization or classification of
fish diseases?
6.135 Dr. Winton replied that while detailed minutes regarding each decision were not kept,
summary minutes of each meeting were prepared and distributed to the delegates from each OIE
Member Country by mail. A synopsis of the activ ities of the FDC was also presented orally by the
President of the FDC to delegates at the OIE General Session for approval. Due to a lack of any
formal method for evaluation of disease risk, disease assessments were based on knowledge of the
peer-reviewed literature or experience of the member s of the FDC (which was quite extensive due to
the large network of colleagues and the frequent contacts needed to prepare the OIE FDC annual
report on the epidemiological situation for aquatic animal diseases worldwide). The scientific content
of the FDC epidemiological report was high because information was gleaned from the peer-reviewed
literature or from direct reports provided by fish disease experts and reference laboratories around the
world who submitted information on the aquatic anim al disease situation in their area. The annual
epidemiological report and report of the meeting of the Fish Diseases Commission were occasionally
cited.
6.136 There was no formal process for categorization of fish diseases and, in fact, there were no
formal mechanisms for categorization of other animal diseases and only limited examples existed for
human diseases. Development of such methods wa s a task for one of the Specialist Commissions of
the OIE which produced an early draft that apparen tly failed to gain approval from the delegates of
Member Countries. If approved for other animals, the FDC would attempt to adapt it to diseases of
aquatic animals, but to date, effo rts to construct a method that work ed well in all cases had remained
elusive. Recently, Australia provided a draft of a proposed mechanism for categorization of fish
diseases. It was discussed at the most recent m eeting of the FDC. While it seemed to perform

reasonably well for some of the notifiable diseases, other diseases of aquatic animals either lacked
sufficient information or differed too greatly in thei r worldwide distribution, host range, or severity to
allow a single method to be applied globally.
Question 22. Which of the 24 disease agents listed in the 1996 Final Report have been considered
by the OIE and what were the conclusions for each? Which of the 24 diseases were considered but
had no recommendation? (For a list of the 24 diseases of concern, see Au stralia's response to
Question 1 of 7 October.) Is this documented in FDC/OIE records? When no recommendation is
made, does it mean that after consideration the disease was found not to be of serious epidemiological
or economic concern?
6.137 Dr. Winton stated that virtually all the 24 listed di seases and several others had, at one time
or another, been considered by the FDC. In general, those diseases having worldwide distribution,
limited impact, or which were readily controllabl e by drugs, vaccines or management strategies had
received less emphasis. Typically, the FDC placed the greatest emphasis on uncontrollable diseases
of proven etiology having a limited geographic di stribution and for which robust diagnostic methods
were available. This information was gleaned from the scientific literature and personal knowledge of
the FDC members. Detailed record s of the factors involved in each decision were not available. A
lack of listing as notifiable did not mean the FDC c onsidered the disease to be of low priority. It
might be, for example, that a new and very severe disease lacked standard diagnostic methods and
could not be listed as no adequate inspection methods existed.
Question 23. To what extent does the FDC factor take into consideration whether a disease is
widespread in concluding whether diseases shoul d be reported or whether guidelines should be
established? Does the FDC consider the impact on trade when categorizing diseases or in developing
guidelines.
6.138 Dr. Winton responded that distribution of diseases was very important in determining
categorization as indicated above. The impact on tr ade was not, per se, a separate factor, but was
included in the concept of the level of damage that could be expected if the disease were introduced.
If a disease was uncontrollable, whether in wild fish or commercial fish, the FDC tended to rate it as
having more effect.
Question 24. Does an OIE recommendation stating that de ad fish be eviscerated before transit
mean that OIE considers that the eviscerated product is sufficiently "safe" in terms of the specific fish
disease under consideration? Do the OIE recommenda tions for the "Other Significant Diseases" of
concern in this dispute, which only deal with uneviscerated fish, imply that the OIE considered
eviscerated fish sufficiently "safe" in terms of the specific fish disease under consideration? Are such
recommendations based on scientific principles? Plea se clarify what you mean by the term "safe" in
your response.
6.139 Dr. Burmaster recommend that the WTO and the parties avoid the word "safe" because most
people understand the word to imply a condition of " zero risk". He believed that conditions of "zero
risk" never occurred in the world. Every plan or proposal, including the "do nothing" alternative, had
(i) non-zero probabilities of adverse consequences (broad ly called the "risks" of the plan or proposal)
and, simultaneously, (ii) non-zero probabilities of favourable consequences (broadly called the
"benefits" of the plan or proposal). Each possible plan or proposal had both risks and benefits. No
single plan or proposal had just risks; no single plan or proposal had just benefits.
6.140 In some situations, there were only two po ssible plans or proposals, which could be called
"Plan Yes" and "Plan No". Each of these choices had risks and benefits. In other situations, there
might be more than two competing plans or proposals, perhaps called Plan A, Plan B, ... , and the "Do
Nothing" Plan. Each of these choices had risks and benefits. The risks and benefits of the competing,

alternative plans or proposals might be measured in a variety of units, including economic or
monetary units.
6.141 In a first step sometimes called "risk assessme nt", scientists, engineers, statisticians, and other
professionals estimated the risks and benefits associat ed with each of the competing, alternative plans
or proposals.
6.142 In a second step sometimes called "risk co mmunication", the risk assessors conveyed their
findings, complete with descriptions of the variab ilities and the uncertainties in their findings, to the
risk managers.
6.143 Then, in a third step sometimes called "ris k management", government officials (including,
possibly, judges and juries) and/or other groups of citizens chose the option from among the
competing, alternative plans and proposals that had the most attractive combination of risks and
benefits. Since all of the options had both risks and benefits, none could be called "safe".
6.144 Dr. Winton replied that the FDC had considered th is point carefully and was unanimous in
the opinion that evisceration of fin fish (e.g. salm onids in this case) provided a very high level of
safety against transmission of disease and that none of the notifiable or other significant diseases were
likely to be transported with such products. Thus , the FDC had judged that eviscerated products fell
outside the concern of the FDC. In fact, a paragr aph in the first edition of the Aquatic Animal Code
(Article 1.5.5.2, paragraph 3) was specifically de leted in the current edition to clarify this point
because the former language provided an option for countries to require inspections of any fish
products (even eviscerated fish) that were, in the opinion of the importing country capable of
introducing a disease of concern. Members of the FDC had reviewed the scientific evidence and were
not aware of a known expansion of range for a fish pa thogen due to the movement of eviscerated fish;
conversely, there were many cases of disease transmi ssion associated with shipment of infected live
fish, live eggs, or even uneviscerated fish used to feed other aquatic animals that were documented in
the scientific literature.
Question 25. To what extent do the OIE recommendations take into account the differing health
situations or potential vulnerabilities of importing member governments?
6.145 Dr. Winton observed that the differing health conditions in various member countries (both
exporting and importing) were a concern; how ever, it was impractical to have different
recommendations for each country. This was why th e FDC had tried to set minimum standards that
could be applied worldwide, but encouraged countri es to engage in bilateral negotiations where there
were differences of opinion regarding quality of fi sh health services, presence of other pathogens of
concern, etc. This flexibility, however, extende d only to live fish, live gametes, and uneviscerated
fish. As stated above, the FDC currently regarded ev iscerated fish to represent a minimal risk that did
not warrant restriction of trade.
Question 26. Could application of OIE guidelines by an importing country be considered to
provide some sense of "safety" with regard to the particular fish disease addressed in the guideline
(please clarify what you mean by the term "safe" in your response)? What is the "level of risk"
implicit in OIE recommendations? Is this a quant ifiable risk level (i.e., one in a million chance
that ...) or can it be described in other terms (i.e ., "negligible", "unmeasurable", "highly unlikely",
etc.)? Is this (implicit) level of risk the same for all OIE recommendations regarding fish diseases?
6.146 Dr. Burmaster stated that he did not know the OIE's or FDC's policies and procedures with
regard to this question, but terms such as "negligib le", "unmeasurable", "highly unlikely", etc. often
caused great confusion in risk assessment, risk communication, and risk management. These words
had no common meaning; different people using the same word could and did have entirely different
meanings in mind when using such terms.

6.147 For example, he noted that Professor M. Granger Morgan recently reported his findings from
an expert elicitation of senior scientists serving on the Science Advisory Board (SAB) of the US
Environmental Protection Agency (Morgan, 1997 ; see also: Morgan & Henrion, 1990; and Cooke,
1991). In this paper, Morgan worked with 14 memb ers of one of the US EPA's SAB panels - mostly
full professors of science or engineering at major universities - to quantify each individual's definition
of three phrases: "likely", "something between likely and not likely", and "not likely". Morgan found
that:
- some of the 14 SAB members use the word "likely" to mean the probability range
from 80 per cent to 100 per cent, while othe r SAB members use the same word to
mean the probability range from 0.1 per cen t to 100 per cent chance of occurring;
and
- some of the 14 SAB members use the words "not likely" to mean the probability
range from 0 per cent to 10 per cent, while other SAB members use the same phrase
to mean the probability range from 0 per cen t to 0.001 per cent chance of occurring;
and
- all of the 14 SAB members identified a probability range to describe "something
between likely and not likely". For one of the SAB members, this intermediate
condition had a wide range, 0.0003 < proba bility < 0.8, showing that the terms
"likely" and "not likely" are not logical complements of each other as one might
expect.
Professor Morgan concluded, and Dr. Burmaster agre ed, that these words had such large differences
in meanings - even among senior scientists - that the words created more misunderstanding than they
did enlightenment. When a lay person heard th ese words spoken by a full professor from a major
university, what conclusion should he or she draw?
6.148 Dr. Winton believed the OIE guidelines, if properly applied by competent personnel,
represented a very significant level of safety against importation of the listed diseases. He knew of no
procedures that would offer improvements in safety su fficient to justify the added expense or effort.
He was not aware of any examples of importation of disease in groups of live fish or eggs nor in
uneviscerated fish when imported in accordance with these or similar (US, Canadian, EU) procedures,
while there were many cases wher e fish diseases had been imported through movement of both live
and uneviscerated fish in the absence of these methods.
Question 27. What are the criteria used by OIE to decide whether or not a particular
disease/disease agent should be included in the Code? Are OIE member governments permitted or
expected to request consideration by the OIE of fish diseases which they have identified as being of
concern?
6.149 Dr. Winton responded that the criteria are stated in the Aquatic Animal Health Code. These
were: proven etiology, limited geographic distributi on, untreatable, and of severe impact. Member
countries were encouraged and expected to review the Code and Manual and to propose the addition
or deletion of aquatic animal diseases or to suggest modifications in wording, diagnostic methods, etc.
based upon scientific evidence. In fact, several co untries (including both Canada and Australia) had
been rather diligent in doing so on a regular basis. The FDC had both added and deleted diseases
based upon scientifically-constructed arguments from several member countries. In some cases, the
FDC had received conflicting opinions from count ries (some wanting to add diseases and others
wishing to delete the same diseases). In thes e cases, the scientific evidence and opinions of the
members of the FDC were used.

Question 28. Are OIE guidelines primarily directed at eliminating or reducing disease
transmission? Do they also address the spread or management of diseases? Are some diseases
considered sufficiently capable of be ing managed so as not to warrant controls on transmission in all
circumstances?
6.150 Dr. Winton indicated that ultimately, the OIE gui delines sought to prevent international
shipment of disease agents. Because there could be no absolute guarantee that transmission would not
occur unless no trade were allowed, the guidelines were, in fact, designed to reduce the risk to
sufficiently low levels that international trade c ould proceed in a safe manner. It was up to the
member countries to control or restrict the distribution of diseases within their country and to maintain
information about this status for the OIE. Seve ral diseases of aquatic animals could be adequately
managed and were thus not included on the OIE list . These diseases could be subjects for bilateral
negotiations if they could be show n to be of legitimate concern to the importing country and trade
were anticipated in live or uneviscerated fish.
Question 29. Have, from a technical/scientific point of view, the risk assessment techniques and
guidelines contained in Section 1.4 of the OIE Code been taken into account in Australia's 1996 Final
Report? Do these OIE techniques and guidelines impose a separate risk assessment for each
individual disease of concern to the country impos ing the sanitary measure and for each sanitary
measure that country decides to consider? A lternatively, do these OIE techniques and guidelines
impose the necessity to assess within a risk assessment, the likelihood of establishment and
consequences of each disease as well as the e ffects of each sanitary measure on the likelihood and
consequences of disease establishment? When a country finally chooses one of these options, do the
OIE techniques and guidelines on risk assessment require that country to justify or explain why that
particular option has been preferred, i.e. does that country need to establish a causal link between the
option chosen and the reduction of risks allegedly identified in its risk a ssessment? Do the OIE
techniques and guidelines require a country to quantify (i.e. to state the probability of), or use
expressions which qualify, the risk which allegedly justifies its sanitary measure?
6.151 Dr. Wooldridge replied that Section 1.4 of the OIE Code was at present undergoing a
re-writing process in order to upda te, expand upon, and clarify the gui delines in the code. The basic
premise was that the guidelines for import risk an alysis and assessment should reflect the best
methodology available.
6.152 The version currently in use stated in the In troduction that: "Import risk analysis is preferable
to a zero-risk approach because it provides a more objective decision" and the section entitled
"Guidelines for Risk Assessment" focused on th e probability of disease agent entry and exposure
rather than just the relevant possibilities. In a ddition it advised that "Because of the multiplicity of
disease agents it may be necessary to carry out multip le risk estimates for any commodity considered
for importation", and "If information on the probabilit y of the presence or survival of a particular
agent following application of a risk reduction optio n is not available, documented experience could
be an alternative source of information". All of these basic guidelines were still valid. The OIE Code
did require an evaluation of probability (either qualitatively or quantitatively) rather than merely
possibility of a given outcome or consequence even if, given current knowledge levels, the confidence
limits on that probability are wide.
6.153 The failure to consider the probability of the various outcomes in the 1996 Final Report rather
than just their possibility meant that, in her opini on, the guidelines given in Section 1.4 of the OIE
Code had not been properly taken into account.
6.154 Whether one considered that a separate ri sk assessment was undertak en for each disease, or
whether within a single risk assessment each disease was considered separately was, in
Dr. Wooldridge's view, merely a case of semantics; the OIE guidelines did not impose either of the
suggested alternatives. The fact was that, in c onsidering any particular product for import, and in

undertaking a risk assessment for that product, each potential disease hazard identified had to be
separately assessed. The potential consequences might be different for each disease. The effect of any
particular sanitary measure would affect the path way from hazard to outcome for each disease, and
might affect it differently for different diseases. Thus the initial assessments, and any re-assessments
considering the application of any risk reducti on measures would need to consider each disease
separately. Performance of the necessary numbe r of individual assessment procedures for any
particular product was part of the full risk analysis process and depended upon the commodity.
6.155 Dr. Wooldridge stated that, in her opinion, once a particular set of sanitary measures had been
chosen by a particular country, transparency in the rationale for that choice was required to
demonstrate that there was a reasonable basis in the case in question for expecting that the risk
reduction measure would have the desired effect.
6.156 Dr. Winton noted that the risk assessment guidelines of Australia or New Zealand had been
read with interest by members of the FDC, but ha d not been formally taken into account. He believed
the FDC would support the concept of individual ri sk assessment for each li sted disease because
important epidemiological features (presence of susceptible hosts, temperatures, etc.) would vary with
each country. That was why the notifiable di sease list was relatively short. Those diseases
considered notifiable were ones that almost everyo ne could agree upon would be very harmful to the
importing country if it were presently free of them. Other aquatic animal diseases could be added by
bilateral agreement if the importing country coul d make a good case based upon its unique situation.
The FDC did not anticipate this would be done for ev iscerated or processed fish products destined for
human consumption unless a human pathogen was involved.
Question 30. Australia seems to contend that a separat e risk analysis may be necessary for each
aquatic animal or animal product. What are the reasons behind the OIE's adoption of
recommendations on a disease-by-disease basis (not on a product-by-product basis)?
6.157 Dr. Winton replied that the notifiable diseases in the OIE Code probably did not need a case-
by-case analysis as this list represented the most si gnificant diseases of aquatic animals and virtually
all cases of movement of infected live aquatic an imals or uneviscerated fish were judged to present
risk. In the case of other diseases of concern, bilateral agreements between countries regarding live
fish, live eggs, or uneviscerated fish should take in to account the volume of tr ade, anticipated use of
the product, presence of different strains of the pa thogen, etc. that might require a product-by-product
or case-by-case analysis.
VII. INTERIM REVIEW
192
7.1 On 7 April 1997, Canada and Australia requ ested the Panel to review, in accordance with
Article 15.2 of the DSU, precise aspects of the interi m report that had been issued to the parties on
26 March 1997. Australia also requested the Panel to hold a further meeting with the parties. We met
with the parties on 21 April 1998.
7.2 Following comments by Canada and Australia on the descriptive part of our report, we
modified paragraphs 2.8, 2.27, 2.28, 4.4, 4.22, 4.26, 4.51, 4.56-4.64, 4.66, 4.71 and 4.175. We
considered that several of the additions sought by Australia were already addressed, particularly in
paragraphs 4.29, 4.30 and 4.35.

192 According to Article 15.3 of the DSU, "the findings of the final report shall include a discussion of the
arguments made at the interim review stage". The following section entitled "Interim Review" is therefore part of the
findings of our report.

7.3 Australia requested a "whole of report review" of the interim report. In so doing, it referred to
Article 11 of the DSU setting out the function of a panel and requiring that it "should make an
objective assessment of the matter before it, including an objective assessment of the facts of the case
and the applicability of and conformity with the rele vant covered agreements". Australia argued that
a large part of the legal reasoning of the interim report was not based on an objective assessment of
the matter before the Panel and submitted that th e interim report contained a number of factual
inaccuracies and assertions not supported by eviden ce before the Panel. At the interim review
meeting, Canada objected to Australia's request for "a whole of report review ". Canada referred to
Article 15.2 of the DSU which provides an opportunity for parties to request the panel to "review
precise aspects of the interim report". According to Canada, it is not open to the Panel to consider
anything other than comments dealing with "precise aspects" of the interim report. We agree with
Canada and have therefore only reviewed our inte rim report in light of the comments made by the
parties which relate to "precise aspects" of the interim report.
7.4 Australia submitted a series of comments on th e definition of the measure at issue and the
product coverage of the dispute as set out in the interim report. Australia argued that the 1988
Conditions - which, according to Australia, are only guidelines and not comprehensive - only apply
to products imported in heat-treated form and have no application to fresh, chilled and frozen product;
that substantial quantities of commercially canned sal mon are imported into Australia and that these
imports are not covered by the 1988 Conditions; that the Panel re-interpreted its terms of reference
and was inconsistent in its definition of the measure at issue; and that heat-treated and fresh, chilled or
frozen salmon are not the same products. We adopted some of Australia's arguments and clarified our
rejection of others. We accordi ngly redefined and specified both the Australian measures and the
salmon products at issue and ensured a consistent a pproach to the measure and products in dispute.
These modifications are reflected in paragraphs 8.7- 8.21, 8.24, 8.29, 8.95-8.101, 8.167-8.169, 8.173-
8.179 and 8.182 and in the deletion of paragraph 8.23 in the interim report.
7.5 Australia provided factual clarifications as to the status of several reports and studies we
referred to in our report. In response, we made mo difications to paragraphs 8.130, 8.132 and 8.136.
We recall, in particular, that for purposes of our examination, the scientific and technical content of
these reports and studies is relevant, not their admini strative status (i.e., whether they are official
government reports or not).
7.6 Following Australia's more detailed objecti ons to take into account evidence submitted by
Canada after the 7 October 1997 deadline we im posed, we modified paragraph 8. and added
paragraph 8.5.
7.7 Canada requested us to review our finding in paragraph 8. that steelhead/rainbow trout falls
outside our terms of reference because, Canada submitted, the measure subject to the terms of
reference applies to all salmonids, not only to salm on. Canada further indicated that some debate
exists as to whether steelhead/rainbow trout is a sal mon or only a salmonid and that practice in North
America considers it to be a salmon. We recall that in paragraph 8. we stated that "steelhead/rainbow
trout ... is - according to the experts advising the Pa nel on this issue - not a "salmon" species but only
part of the wider "salmonid" family". We also st ated that "the Panel request, which defines our terms
of reference, only refers to "salmon", not to the wider category of "salmonid" " and thus found that
"steelhead/rainbow trout falls outside our terms of reference". In our view Canada did not bring
forward evidence which overrides the general validity of the scientific opinions we received from the
experts advising the Panel. Nor do we consider that the measure at issue in this dispute - which is,
according to the Panel request, only before us in so far as it applies to a specific category of "salmon"
- should be broadened in product c overage to all "salmonids" because the measure referred to in the
Panel request in principle applies to all salmonids. In the Panel request Canada not only limited the
scope of this dispute to a specific measure, but also to specific products (a category of "salmon"). We

therefore did not incorporate Canada's suggested change to paragraph 8.20. In response to a comment
by Australia that the genus Oncorhynchus is but one genus in the family Salmonidae, we rephrased
paragraph 8.20.
7.8 Australia claimed that paragraph 8.22 is an inaccurate rendition of the situation. Australia
submits that it should have been given the opport unity to rebut the "fundamental changes" introduced
by Canada through a formal written submission, not through a written comment limited to certain
matters. We confirm that paragr aph 8.22 is an accurate reflec tion of what happened and what
Australia agreed upon. Whether the additional oppor tunity we granted to the parties to submit
arguments resulted in a formal written submission or a written comment is in our view irrelevant.
7.9 Both Canada and Australia provided comment s on paragraphs 8.34 to 8.37 of our findings
relating to the question of which definition of "san itary measure" (as provided in paragraphs 1(a) and
(b) of Annex A to the SPS Agreement) applies to the measure at issue in this dispute. We redrafted
these paragraphs to accommodate most of the parties' concerns. However, with respect to Canada's
argument that the definition in paragraph 1(b) of Annex A does not apply to this dispute, we recall
that we stated that "both definitions of a "sanitary measure" invoked by Australia might be applicable
to the measure in dispute", without deciding whether they are. We only found that (1) the definition
in paragraph 1(a) covers the measure at issue and (2) even in the event the definition in paragraph 1(b)
would also cover to the measure at issue, "the obj ectives for which that measure is being applied are
more appropriately covered by the definition in paragraph 1(a)". Th e four elements referred to in
paragraphs 8.35 and 8.36 indicate the validity of the last statement. They are not, as submitted by
Canada, "reasons ... as to why paragraph 1(b) does not apply in this case". On that basis, we maintain
our finding that "in the specific circumstances of this case we need to ex amine this measure as a
[sanitary] measure ... in the sense of paragraph 1(a)".
7.10 With respect to paragraph 8.46, Australia stated that the OIE Code does not set adequate
international guidelines since it is under substantia l revision, not representative of global conditions,
not grounded on a scientific basis and the result of nontransparent decision-making. Canada
responded that the OIE Code is a "finalised document" adopted in 1995 and that the fact that it has
been revised in 1997 does not make the guidelines it c ontains any less legitimate, but to the contrary
ensures that these guidelines reflect advances in sc ientific knowledge. According to Canada, it is
disingenious for Australia as an active participant in the OIE to suggest that the OIE process ignores
southern hemisphere concerns or lacks transparency. To the extent we refer to the OIE Code in our
report, we recall that the SPS Agreement (paragraph 3( b) of Annex A) explicitly directs us to the OIE
and the standards, guidelines and recommendations it de velops. Article 5.1 also refers us to "risk
assessment techniques developed by the relevant inte rnational organizations". The fact that the OIE
Code is subject to revision or the way it has been adopted in our view does not change its validity for
our purposes.
7.11 On several occasions Australia referred to Article 5.3, which it invoked for the first time at
the interim review stage. It submitted that the Pa nel "ignored the right of WTO Members to take into
account the factors referred to in Article 5.3". Wh en addressing this provision in paragraph 8.50 we
noted the following: "Canada does not challenge th e measure at issue under Article 5.3 (elaborating
on the "relevant economic factors" to be taken into account in a risk assessment) nor do we see any
reason to further examine this provision". I ndeed, Article 5.3 is a provision imposing an obligation
on Australia to take into account certain economic factors in assessing risk. It is, therefore, a
provision - we would expect - to be invoked by Ca nada. However, by not addressing this provision
we do by no means ignore the right of Australia to take into account these factors. The definition of
risk assessment we applied, for example, refers to "economic consequences" and we have addressed
such consequences consistently in, e.g., paragraphs 8.72 and following and 8.121 and following.
7.12 With respect to paragraph 8.60, Canada s ubmitted that the Panel should not have limited its
findings under Articles 5.5 and 5.6 of the SPS Agreement to adult, wild, ocean-caught Pacific salmon.

Canada argued that we thus make a distinction "not among claims but among categories of products
covered by the same claims". For Canada, the Appellate Body Report on United States - Measures
Affecting Imports of Woven Wool Shirts and Blouses - to which we refer in support of the principle of
judicial economy - only allows Panels to dispense with addressing only particular claims. We
changed paragraphs 8.60, 8.102 a nd 8.104 to clarify some of the concerns raised by Canada but
maintained our position in applying the principle of judicial economy with respect to the salmon
products at issue other than those from adult, w ild, ocean-caught Pacific salmon for our examination
under Articles 5.5 and 5.6. We recall that we f ound an inconsistency with Article 5.1 of the SPS
Agreement with respect to all salmon products at is sue (including those other than from adult, wild,
ocean-caught Pacific salmon). In principle we might thus have stopped our examination there.
However, we considered it appropriate to also addres s in the alternative (i.e., in case we were to have
found that the measure at issue is consistent with Article 5.1) Articles 5.5 and 5.6 but limited our
examination under these provisions to the salmon pr oducts at issue specifically addressed by the
Australian risk assessment, i.e., those from adult, wild, ocean-caught Pacific salmon. Whether one
considers this limitation to imply a distinction betw een claims or a distinction between categories of
products covered by one and the same claim does not in our view preclude us from adhering to the
prudential dictates of judicial economy as we did in this dispute.
7.13 Australia referred to, inter alia, paragraphs 8.68 and following and argued that they do not
address differences between additives, contaminants or toxins on the one hand (for which only the
definition in paragraph 1(b) of Annex A to the SPS Agreement a pplies) and naturally occurring
diseases on the other hand (for which several definiti ons in paragraph 1 of Annex A might apply).
We consider that this issue is sufficiently covered in pa ragraphs 8.34 and following and
paragraphs 8.68 and following.
7.14 With respect to paragraph 8.96, Australia su bmitted - for the first time during our proceedings
- that the heat treatment requirements it currently imposes are based on a risk assessment, reflecting
the scientific knowledge of the 1980s, in accordance with assessments and practices that predate the
entry into force of the SPS Agreement. Howeve r, Australia never provided us any such risk
assessment. We therefore decided not to change that part of our report.
7.15 With respect to paragraph 8.107, Canada - for the first time in this dispute - invoked
paragraph 3(c) of Annex B to the SPS Agreement (re ferred to in Article 7 of that Agreement) in
support of its claim under Article 5.5 that there rest s an obligation on Australia to identify or quantify
its appropriate level of protection. We note that claims under Article 7 - which is not mentioned in
the Panel request setting out our terms of reference - fall outside our mandate. Moreover, even in so
far as paragraph 3(c) of Annex B is part of the c ontext in which the wording of Article 5.5 should be
read, we do not consider that it imposes a substa ntive obligation on Members to identify or quantify
their appropriate level of protec tion. In our view, paragraph 3( c) of Annex B imposes a mainly
procedural obligation to provide "answers to all reasonable questions from all interested Members" as
well as "relevant documents" regarding "the determ ination of the appropriate level of sanitary
protection". We therefore kept our position in para graph 8.107 unchanged. We did rephrase part of
that paragraph to avoid some further misunderstandings hinted at by Canada.
7.16 Canada further commented on paragraphs 8.127 and 8.128. We took this comment into
account and accordingly made some changes in paragr aphs 8.120, 8.127 and footnote 335 to clarify
that Canada not only forwarded the four comparisons we further examined under Article 5.5 but also
referred to others.
7.17 We incorporated changes suggested by Ca nada in paragraph 8.144 specifying that the
arguments contained in that paragraph predate the circulation of the Appellate Body Report on EC -
Hormones.

7.18 In the context of paragraph 8.154, Austra lia submitted that our lega l reasoning and reference
to the difference in conclusions reached by the 1995 Draft Report and the 1996 Final Report will
discourage Members from issuing draft reports for domestic public comment and for comments from
other Members. We recall, however, that in our vi ew risk communication is an important aspect of a
risk analysis. Nowhere should our report be inte rpreted as discouraging risk communication. All we
refer to in this respect is (as stated in paragra ph 8.154) that Australia did not explain why the risk
communication exercise - conducted between the tw o reports - brought about the change in
recommendations between the 1995 Draft Report and th e 1996 Final Report. We accept, of course,
that changes are made between draft reports sent out for public comment and final reports. However,
one may reasonably expect that substantial changes in the recommendations contained in these reports
can be explained and justified in terms of Members' commitments under the WTO agreements.
7.19 With respect to paragraph 8.185, Canada re quested the Panel to also find a violation of
Article XI of GATT 1994 since we "already made the findings necessary to support" such finding.
Even if this were the case, in our view a finding th at the measure at issue also violates Article XI of
GATT 1994 would not contribute to the resolution of the matter at issue in this dispute nor, in terms
of Article 11 of the DSU "assist the DSB in ma king the recommendations or in giving the rulings
provided for in the covered agreements". Indeed, if we were to find that Article XI of GATT 1994 is
violated, we would not be able to stop our examination there. The issue would then arise whether
such violation could not be justified under Article XX of GATT 1994 wh ich, in turn, would lead us to
the SPS Agreement under which we already found inc onsistencies. We therefore maintained our
position of applying the principle of judicial economy in this respect.
7.20 The comments made by Canada on paragra phs 8.73, 8.74, 8.75, 8.80, 8.105 and 8.107 are
explicitly addressed or have been incorporated in these paragraphs. Canada also provided some
technical corrections - to which Australia did not object - which we took into account in finalizing our
report. These dealt in particular with the technical distinction to be made between a "disease" and a
"disease agent", a distinction to which, in this report, no substantial legal consequence is attached.
7.21 The comments made by Australia on paragraphs 8.30, 8.53, 8.54, 8.55, 8.57, 8.58, 8.67, 8.81,
8.83, 8.90, 8.98, 8.106, 8.118, 8.128, 8.129, 8.140, 8.145, 8.147, 8.148 and 8.163 are explicitly
addressed or have been incorporated in these paragr aphs. We also modified paragraphs 8.72, 8.93,
and deleted paragraphs 8.98, 8.117 and 8.152 in the interim report, to accommodate or respond to
some of Australia's concerns.
VIII. FINDINGS
A. CLAIMS OF THE PARTIES
8.1 Canada claims that certain Australian quaran tine measures which, it alleges, effectively ban
the importation of fresh, chilled and frozen salmon, are inconsistent with Article XI of GATT 1994
and Articles 2, 3 and 5 of the SPS Agreement. In th e alternative, Canada claims that the Australian
measures nullify or impair benefits accruing to it under the WTO Agreement within the meaning of
Article XXIII:1(b) of GATT 1994. Australia reje cts these claims and submits that its measures
applying to fresh, chilled and frozen salmon are fully consistent with Australia's rights and obligations
under both the SPS Agreement and GATT 1994.
B. ORGANIZATIONAL ISSUES
8.2 At our first substantive meeting we decide d to seek advice from individual scientific experts
in accordance with Article 13 of the DSU and Article 11.2 of the SPS Agreement. The procedures we
adopted for our consultation with the experts advising the Panel are set out in paragraphs 6.1-6.6. We

first solicited advice from the experts advising th e Panel on a series of scientific and technical
questions. An overview of the experts' written answers to these questions can be found in
paragraphs 6.7-6.157. The parties commented extens ively on the experts' answers. We then held a
meeting with the parties and the scientific experts advising the Panel to allow the experts to express
their views orally and to enable both the Panel and the parties to ask a dditional questions. The
verbatim transcript of this meeting is attached to our report as Annex 2 (and hereafter referred to as
"transcript"). The meeting with experts advisi ng the Panel took place the day before our second
substantive meeting in order to allow the parties to incorporate - in their rebuttal statements - the
comments and conclusions they might draw from the scientific evidence gathered by the Panel. On
request by the parties, we delayed our second subs tantive meeting - and the meeting with experts
advising the Panel - to 4 and 5 February 1998 to enab le the parties to make their rebuttal statements in
light of the Appellate Body Report on European Communities - Measures Concerning Meat and Meat
Products (Hormones) (hereafter referred to as "EC - Hormones").
8.3 To allow the experts advising the Panel to ta ke into account all material evidence before the
Panel when answering our questions, we requested th e parties - at the end of our first substantive
meeting - to submit any additional evidence they mi ght have together with their rebuttal submission
which was due on 7 October 1997. However, we also made clear that the parties would still be given
the opportunity to comment on the experts' answ ers, both in writing until 18 December 1997 and at
the meeting with the experts advising the Panel.
8.4 At our second substantive meeting, Australia requested us to excl ude Annex K submitted by
Canada as part of its comments on the experts' writ ten answers, hereafter referred to as the "Vose
Report"
193, as well as Exhibit C-14 annexed by Canada to the oral statement it made at the second
substantive meeting held after the me eting with experts advising the Panel. 194 Australia argues that
for due process reasons documentary evidence needs to be provided at the earliest stage of the panel
process and that both documents have been submitt ed after the 7 October 1997 deadline. Both the
Vose Report and Exhibit C-14 were submitted after the 7 October 1997 deadline we imposed. Even
though Canada transmitted the Vose Re port before our meeting with th e experts advising the Panel as
an annex to its comments on the experts' written answ ers, it is unclear to us whether the Vose Report
- given its complexity and length (it allegedly constitutes a complete alternative risk assessment
commissioned by Canada) - can be qualified as a "c omment" on the specific answers provided by the
scientific experts advising the Panel which parti es were allowed to make after the 7 October 1997
deadline. We recall, however, that - as is outlined in paragraph 8.22 - we granted Australia the one
additional week it requested to respond, inter alia, to the Vose Report in a third written submission.
Against this background and since, in our view, th e Vose Report is in any event not crucial to our
report, we shall not further consider it in our examination. With respect to Exhibit C-14, submitted by
Canada at our second substantive meeting and thus after the meeting with the experts advising the
Panel, we agree with Australia that the 7 October 1997 deadline applies and th at it should, therefore,
be rejected. The experts advising the Panel never re ceived this document. The experts could thus not
comment on it. We therefore exclude Exhibit C-14 from our examination.
8.5 Finally, at the interim review meeting Aust ralia also pointed out that the risk assessment
conducted by New Zealand in 1997 which Canada attached to its comments on the experts' written
responses, hereafter "1997 New Zealand Risk Analysis". 195 should be excluded since it was
submitted after the 7 October 1997 deadline. In one of our questions to the experts advising the Panel
we inquired whether the risk assessment conducted by New Zealand in 1994 - and which had been
submitted to us by Canada as an exhibit to its firs t submission - was scientifically relevant to this
dispute. In response, one of the experts advising the Panel referred to and discussed the more recent

193 David Vose, "Quantitative analysis of the risk of establishment of Aeromonas salmonicida and
Renibacterium salmoninarum in Australia as a result of importing Canadian ocean-caught salmon".
194 Lester and Sewell, "Checklist of Parasites from Heron Island, Great Barrier Reef".
195 Stone, MacDiarmid and Pharo, "Import Health Risk Analysis: Salmonids for Human Consumption, New
Zealand, Ministry of Agriculture Regulatory Authority", 1997.

1997 risk assessment carried out by New Zealand. In its comments to this answer, Canada submitted
this risk assessment. On this ground, we cons ider that we can take into account the 1997
New Zealand Risk Analysis in our further examination.
C. GENERAL INTERPRETATIVE ISSUES
 1. Scope of the Australian measures in dispute
8.6 Our terms of reference direct us to examine "i n light of the relevant provisions of the covered
agreements cited by Canada in document WT/DS18/2 [the request for establishment of this Panel], the
matter referred to the DSB by Canada in that document".196
8.7 In the Panel request Canada specifi ed the contested measures as follows:
"The Australian Government's measures pr ohibiting the importation of fresh, chilled
or frozen salmon ... include Quarantine Pr oclamation 86A, dated 19 February 1975,
and any amendments or modifications to it. The measures adversely affect the
importation of Canadian salmon".197
In its first submission to the Panel, Canada sp ecifies that the Australian measures at issue are
"Quarantine Proclamation 86A ("QP86A") and pub lished requirements pursuant to QP86A that
together require salmonid product to be heat treated for certain prescribed durations and temperatures,
prior to importation into Australia". 198 Canada sums up the following Australian measures as
published requirements pursuant to QP86A: (1) "Guidelines for the Importation of Smoked Salmon
and Trout into Australia", issued in July 1983 by the Australian Department of Primary Industries and
Energy ("1983 Guidelines"; these Guidelines are no longer in effect and we shall thus not further
address them); (2) "Conditions for the Importation of Salmonid Meat and Roe into Australia", issued
on 1 June 1988 by the same department a nd replacing earlier guidelines, including the 1983
Guidelines ("1988 Conditions"); (3) "Requirements for the importation of individual consignments of
smoked salmon meat", issued by the Australia n Quarantine and Inspection Service ("AQIS") on
24 January 1996 ("1996 Requirements"); and (4) the Decision of the Director of Quarantine, dated
13 December 1996, that a permit will not be issued for the importation into Australia of "uncooked,
adult, wild, ocean-caught Pacific salmonid product from the Pacific rim of North America"
("1996 Decision").
199
8.8 Australia submits that the measure at issue is the 1996 Decision. For Australia, QP86A is not
at issue since it does not constitute an import pr ohibition but only provides the legal basis for
conditions of entry of salmon. Australia submits th at the fact that imports of appropriately heat-
treated and canned salmon have been permitted, is evidence that QP86A does not constitute an import
prohibition. If Australia is correct, the scope of th is dispute would be limited to the specific category
of salmon covered by the 1996 Decision. At the inte rim review stage, Australia further alleged that
the 1988 Conditions only apply to products imported in heat-treated form and are not comprehensive
since other products may enter Australia provided th e decision-maker is satisfied that the risk is
acceptable. Such other products which are allo wed for importation are commercially canned salmon
(according to Australia, not subject to formal gui delines) and material for scientific and research
purposes.
8.9 Canada counters that it does not argue that QP86A is an import prohibition, but rather, that it
has been applied as an import prohibition, by means of the published guidelines and conditions on

196 WT/DS18/3, 3 June 1997.
197 WT/DS18/2, 10 March 1997, p.1.
198 Canada, First Submission, para. 4.
199 The first three measures were referred to by Canada in its first submission, footnote 2, p.1. Later in the
proceedings Canada also referred to the 1996 Decision.

heat treatment. For Canada, it is a fact that Canadian fresh, chilled and frozen salmon cannot enter
Australia and that, therefore, the measures in ques tion operate as an import pr ohibition. Furthermore,
Canada notes that if the measure at issue would only be the 1996 decision by the Director of
Quarantine, the scope of the measure would be limit ed to uncooked, adult, wild, ocean-caught Pacific
salmon from Canada and the United States. However, according to Canada, the terms of reference of
the Panel extend to all fresh, chilled and frozen salmon from Canada.
8.10 QP86A provides in relevant part:
"NOW THEREFORE I, ..., the Governor-General of Australia, ..., hereby,

 (d) prohibit the importation into Australia of dead fish of the sub-order
Salmonidae, or any parts (other than semen or ova) of fish of that sub-order,
in any form unless
 (i) prior to importation into Australia the fish or parts of fish have been
subject to such treatment as in the opinion of the Director of
Quarantine is likely to prevent the introduction of any infectious or
contagious disease, or disease or pest affecting persons, animals or
plants; (underlining added) and
 (ii) the Director of Quarantine or a person authorized by him has, by
instrument in writing, consented to the importation and the instrument
is produced to a Collector ... or to a quarantine officer".200
8.11 The 1988 Conditions, which replaced earlie r guidelines (including the 1983 Guidelines)
which we do not need to address, provide as follows:
"CONDITIONS FOR THE IMPORTATION OF SALMONID MEAT AND ROE
INTO AUSTRALIA
1. All uncanned salmon and trout meat and salmon roe will require a quarantine
permit to enter Australia.

3. On current information approved te mperature time relationships are as
follows:
35° for 7 hours )
40° for 5 1/2 hours )
50° for 3 hours ) oven temperatures
60° for 1 hour )
70° for 0.25 hour )
120° for 0.2 hour )

5. The Australian Quarantine and Insp ection Service is willing to consider
variations to the current requirements which could take into account the effects of the
auxiliary processing such as "flash-baking" , "par boiling", "gamma irradiation",

200 Commonwealth of Australia Special Gazette No. S 33, 21 February 1975.

"brining" or "freezing" where the effec tiveness of this process in inactivating
organisms can be demonstrated ...

12. These conditions valid at 1 June 198 8, are subject to alteration at the
discretion of the Director of Animal and Plant Quarantine (Australia) or if the fish
disease status of any exporting country changes".
201 (underlining added)
8.12 The 1996 Requirements specify new requirements for the importation of individual
consignments of smoked salmonid meat (under 5 kg in weight) accompanied by passengers. These
consignments are:
"exempt from the certification requirement of Condition Code 5055 in Volume 5 of
the Quarantine Manual. However, treatme nt to the prescribed processing is still
required".202
8.13 The 1996 Decision of the Director of Quarantine reads in relevant part:
"The [Chief Veterinary Officer] recomme nds "that the status quo for quarantine
policies for uncooked salmon products continue"
 - i.e., that the requests from Canada and US for access for uncooked,
adult, wild, ocean caught Pacific salmonid product not be approved.

On the basis of these considerations I have decided that, having regard to Australian
Government policy on quarantine and after taking account of Australia's international
obligations, importation of uncooked, adult, wild, ocean-caught Pacific salmonid
product from the Pacific rim of North Amer ica should not be permitted on quarantine
grounds".
203
8.14 In addressing the argument raised by Australia - that QP86A is not an "import prohibition"
and that the only "import prohibition" at issue is the 1996 Decision - we note that the argument relates
primarily (and for the purpose of our present examina tion, exclusively) to the interpretation of our
terms of reference (in particul ar, the terms "measures prohibiting the importation" in the Panel
request). We, therefore, recall the Appellate Body's statement in its report on Brazil - Measures
Affecting Desiccated Coconut:
"A panel's terms of reference are important for two reasons. First, terms of reference
fulfil an important due process objective - they give the parties and third parties
sufficient information concerning the claims at issue in the dispute in order to allow
them an opportunity to respond to the comp lainant's case. Second, they establish the
jurisdiction of the panel by defining the precise claims at issue in the dispute".204

201 Department of Primary Industries and Energy ("DPIE"), Document T88/90, 1 June 1988.
202 AQIS, Quarantine Operational Notice 1996/022, 24 January 1996, p.2.
203 AQIS, Policy Decision, 13 December 1996, Australian Exhibit 33 to its First Submission.
204 Adopted 20 March 1997, WT/DS22/AB/R, p.22. See also Appellate Body Reports on EC - Regime for
the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R, para. 142, and
India - Patent Protection for Pharmaceutical and Agricultural Chemical Products , adopted 16 January 1998,
WT/DS50/AB/R, paras. 87-88.

We note, however, that in this dispute Australia does not argue that either QP86A or any of the
guidelines, conditions or requirements mentioned by Canada fall outside our terms of reference due to
lack of specificity of the Panel request, in the sense of Article 6.2 of the DSU. 205 In line with this,
Australia does not submit that the request for cons ultations or the Panel request did not give it
adequate notice that Canada would also cont est measures implementing QP86A. Australia only
argues that none of the measures challenged by Canada, other than the 1996 Decision, can be
considered as an "import prohibition", i.e., the kind of measure mentioned in the Panel request.
8.15 Considering, first, whether QP86A falls within our terms of reference, we note that our terms
of reference are defined in the Panel request and th at in this case the Panel request explicitly identifies
QP86A. We find, therefore, that QP86A, irrespective of how Canada characterizes it ( in casu ,
Canada considers it to be a measu re "prohibiting the importation of fresh, chilled or frozen salmon"),
falls within our terms of reference. In this respect, we note, moreover, that in 1975 a Chief
Quarantine Officers (Animals) Conference decided that under QP86A "all fresh or frozen salmonid
flesh is prohibited". 206 The 1996 Final Report as well stated unambiguously that under QP86A
"commercial quantities of fresh, frozen and chille d salmon product are not permitted entry into
Australia".207
8.16 We next examine whether the published re quirements pursuant to QP86A referred to by
Canada (i.e., the 1988 Conditions, the 1996 Requir ements and the 1996 Decision) fall within our
terms of reference. We note that none of these requirements are explicitly mentioned in the Panel
request. We recall, however, that the Panel request does refer to "measures prohibiting the
importation of fresh, chilled or frozen salmon" a nd explicitly mentions QP86A as being one such
measure.
8.17 The 1996 Decision is a decision taken by the Director of Quarantine on the basis of the
authority delegated to him by QP86A. Following a recommendation of the Chief Veterinary Officer
"that the status quo for quarantine policies for uncooked salmon products continue", it explicitly states
that the "importation of uncooked, adult, wild, ocean-caught Pacific salmonid product from the
Pacific rim of North America should not be permitte d on quarantine grounds". It thus confirms the
general prohibition in principle imposed by QP 86A on the importation of all salmonid products
(unless special authorization is granted) for a limited category of salmonid products. It confirms,
more particularly, the decision taken by the Chief Quarantine Officers (Animals) Conference, referred
to in paragraph 8., that "all fresh or frozen salmonid flesh is prohibited". We consider, therefore, that
the 1996 Decision is a measure "prohibiting the importation of fresh, chilled or frozen salmon" as
referred to in the Panel request and this even though it only prohibits importation of a specific
category of "fresh, chilled or frozen salmon" (namel y, "uncooked, adult, wild, ocean-caught Pacific
salmonid product"). In our view, the 1996 Decision is , moreover, subsidiary and so closely related to
QP86A that it can be said to be part of the application of QP86A.
208 On these grounds, we find that
the 1996 Decision falls within our terms of reference.
8.18 In our view, the same reasoning applies to the 1988 Conditions. They impose - as the title of
the 1988 Conditions reads - "conditions for the importa tion of salmonid meat and roe into Australia".
They authorize - by decision of the Director of Qu arantine who was granted the authority to do so in

205 Article 6.2 of the DSU provides in relevant part: "The request for the establishment of a panel shall be
made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide
a brief summary of the legal basis of the complaint sufficient to present the problem clearly".
206 Chief Quarantine Officers (Animals) Conference s 1975, (Canberra) 23-24 September, (Melbourne) 17
November, p.20.
207 1996 Final Report, p.4.
208 Panel Report on Japan - Measures Affecting Consumer Photographic Film and Paper, adopted on
22 April 1998, WT/DS44/R, para. 10.6-10.11, especially at pa ra. 10.10: "In our view, "measures" that are subsidiary
or closely related to specified "measures" can be found to be "adequately identified" as that concept was applied in the
Bananas III case".

QP86A - the importation of salmonid meat and roe into Australia subject to heat treatment in
accordance with certain approved temperature-time relationships. In that sense, they are - as the 1996
Decision is - subsidiary and so closely related to QP 86A that they can also be said to be part of the
application of QP86A. 209 Contrary to what Australia alleges, nothing in the 1988 Conditions implies
that the 1988 Conditions only apply to heat-treated product. Only the actual requirement for
importation imposed in the 1988 Conditions (not the scope of application of these conditions) refers to
heat treatment. According to Australia, only two other categories of salmonid product (for which no
formal guidelines exist) may enter Australia: canned salmon
210 (which, however, according to
Australia will a fortiori meet the heat treatment requiremen ts contained in the 1988 Conditions) and
frozen, uncooked salmon tissue to be used for scientific purposes or for taxidermy. 211 Therefore, to
the extent that the 1988 Conditions require salmon pr oduct to be heat-treated before they can enter
Australia and given the fact that, according to Australia, only some minuscule quantities of salmon
product not so heat-treated can enter Australia (namely, frozen, uncooked salmon tissue used for
scientific purposes or taxidermy), we consider that th e 1988 Conditions, read in that context, in effect
deny the importation of commercial quantities of salmon product not heat-treated as prescribed. 212
The 1988 Conditions can, in that sense, also be said to constitute a me asure "prohibiting the
importation of fresh, chilled or frozen salmon" as referred to in the Panel request. 213 For the above
reasons, we consider that also the 1988 Conditions fa ll within our terms of reference. Finally, with
respect to the 1996 Requirements - which deal w ith the importation of individual consignments of
salmonid meat and confirm that the heat treatme nt requirements imposed in the 1988 Conditions
apply for such imports - we consider that the same reasoning as that developed above for the 1988
Conditions applies. We thus consider that the 1996 Requirements fall within our terms of reference.
8.19 For the above reasons, we consider that, accord ing to our terms of reference, the measure we
need to examine in this dispute is QP86A as implemented or confirmed by the 1988 Conditions, the
1996 Requirements and the 1996 Decision and this in so far as it prohibits the importation into
Australia of fresh, chilled or frozen salmon.
8.20 In its first submission, Canada specifies certa in limits on the scope of the dispute. Australia
does not object to this and we see no reason to do so e ither. First, Canada limits its challenge to the
treatment of Canadian salmon. Second, Canada further specifies that only salmon products for human
consumption are at issue. Third, Canada also cl arifies the notion of "fresh, chilled or frozen" salmon,
the only category of salmon mentioned in the Pane l request (also referred to by Canada as "uncooked
salmon") to mean salmon which has not been heat treated as required by Australia prior to
importation. Fourth, Canada identifies the Canadian salmon for which it seeks access to the Australian
market to consist of the following seven species:
(1) pink salmon;
(2) chum salmon;
(3) coho salmon;
(4) sockeye salmon;
(5) chinook or king salmon;
(6) steelhead/rainbow trout; and
(7) Atlantic salmon.

209 Ibid.
210 1996 Final Report, p.4: "commercially canned salmon products in hermetically sealed containers not
requiring refrigeration may be imported".
211 Ibid., p.4: "small amounts [of fresh, frozen and chilled salmon product] have been permitted entry into
approved premises for scientific purposes".
212 1996 Final Report, p.4: "commercial quantities of fresh, frozen and chilled salmon product are not
permitted entry into Australia" and Chief Quarantine Officers (Animals) Conferences 1975, (Canberra)
23-24 September, (Melbourne) 17 November, p.20: "all fresh or frozen salmonid flesh is prohibited".
213 At our interim review meeting, Australia stated that it was reviewing its heat treatment requirements but
that in the interim the 1988 Conditions are applied.

The first five species are all P acific salmon. The sixth species, st eelhead/rainbow trout, differs from
the other species referred to by Canada in that it is - according to the experts advising the Panel on
this issue 214 - not a "salmon" species but only part of the wider "salmonid" family (including,
inter alia, the genus Oncorhynchus). Since the Panel request, which defines our terms of reference,
only refers to "salmon", not to the wider category of "salmonid", we find that steelhead/rainbow trout
falls outside our terms of reference.
8.21 Considering our terms of reference as inte rpreted above and taking into account the further
refinements provided in Canada's first submission, we shall, therefore, only examine Australian
QP86A as implemented or confirmed by the 198 8 Conditions, the 1996 Requirements and the 1996
Decision and this only in so far as it prohibits the importation of salmon products (i.e., dead salmon or
any part thereof) (1) imported from Canada, (2) for human consumption, (3) which are "fresh, chilled
or frozen" (i.e., which have not been heat-treated as required by Australia prior to importation) and
(4) which originate from any of the species of salmon identified by Canada other than
steelhead/rainbow trout. Hereafter we refer to this measure as "the measure in dispute" or "the
measure at issue" and to the specific category of salmon products fulfilling all four above-mentioned
conditions as "the salmon products in dispute" or "the salmon products at issue".215
 2. The "fundamental changes" introduced by Canada in its oral statement at the
second substantive meeting
8.22 At our second substantive meeting, Australia raised a procedural claim related to Canada's
oral statement made at that meeting. Accordi ng to Australia, Canada's oral statement introduced
fundamental changes in the nature of its specific legal claims which are of such significance that
Australia should be allowed to rebut them through a formal written rebuttal submission. On this
ground, Australia requested the Panel to give it mo re time - suggesting one extra week - to submit a
third written rebuttal submission. The "fundamental ch anges" referred to by Au stralia are outlined in
paragraphs 4.8-4.17. We consider that some of th ese changes - most of them inspired by the expert
advice gathered by the Panel at the experts meeting and by the Appellate Body's Report on
EC - Hormones - are, indeed, substantial and for reasons of due process warrant an additional rebuttal
period for Australia. We thus granted Australia's request to submit a third written submission within
one week after our second substantive meeting. We gave the same opport unity to Canada and
specified that both third submissions had to be li mited to the "fundamental changes" introduced by
Canada as they were identified in an oral stat ement made by Australia at the second substantive
meeting. On 13 February 1998, we received such third submission from both parties.
8.23 In its third submission Australia argues that some of these "fundamental changes" are "new
claims". However, Australia does not submit that th ey are "new claims" in the sense that they fall
outside our terms of reference. The document wh ich defines our terms of reference is Canada's
request for this Panel. In relevant part Article 6.2 of the DSU requires that "[t]he request for the
establishment of a panel shall ... identify the specifi c measures at issue and provide a brief summary
of the legal basis of the complaint sufficient to present the problem clearly". Moreover, as noted by
the Appellate Body in European Communities - Regime for the Importation, Sale and Distribution of
Bananas:
"There is no requirement in the DSU or in GATT practice for arguments on all claims
relating to the matter referred to the DSB to be set out in a complaining party's first
written submission to the panel. It is th e panel's terms of reference, governed by

215 We note that we need not address in this disput e the importation of live salmon or salmon used as
feedstuff or bait.

Article 7 of the DSU, which set out the claims of the complaining parties relating to
the matter referred to the DSB".216
8.24 Canada's request for this Panel su fficiently identifies the measures at issue 217 and specifies,
inter alia, that these measures "are inconsistent with (i) the Agreement on the Application of Sanitary
and Phytosanitary Measures, and in particular Artic le 2, 3 and 5 thereof". We next address whether
the, according to Australia, "new claims" made by Canada at our second substantive meeting fall
within our mandate. First, Australia argues that Canada extended its claim under Article 5.1 to
include claims in respect of h eat-treated salmon and salmon not c overed by the 1996 Final Report.
This "new claim" remains a claim under Article 5.1, which falls within our terms of reference. The
product coverage of this dispute, set out in the Pa nel request and specified by Canada in its first
submission, has been determined in paragraph 8.18. It does not only include salmon products covered
by the 1996 Final Report. It does exclude heat-treated product. Second, Australia alleges that Canada
introduced a new specific claim under Articles 5.1, 5. 2 and 2.2, on the basis that there was no rational
relationship between the measure and the scientific evid ence. We consider this "new claim" to be a
new argument (put forward in support of claims under Articles 2 and 5 which do fall within our terms
of reference), inspired by the Appellate Body Report on EC - Hormones, not a new claim. Third, in
respect of Article 5.5, Australia submits that Cana da had not previously made a legal claim that the
measure resulted in a disguised restriction on intern ational trade. We consider this "new claim"
(which refers to one of the requirements under Article 5.5 and has been raised by Canada in its first
submission) to be a claim under Article 5.5, which do es fall within our terms of reference. Fourth, in
regard to Article 3.3, Australia argues that Canada had not previously requested the Panel to make a
finding of violation in respect of Article 3.3. Cl aims under Article 3, including Article 3.3 to which
Article 3.1 explicitly refers, fall within our terms of reference. Moreover, in its first submission,
Canada already submitted that Australia does not fulfil the conditions in Article 3.3. Fifth, in regard
to Article 5.6, Australia argues that Canada introdu ced a new legal claim in respect of heat-treated
product. As we found in paragraph 8.18, heat-tr eated product falls outside the product coverage of
this dispute. However, as set out in paragr aph 8.18, the 1988 Conditions - which impose specific
heat-treatment requirements before importation is allowed - do fall within our terms of reference.
8.25 We thus consider that all of the "new cl aims" introduced by Canada at our second substantive
meeting fall within our terms of reference and can be taken into ac count in our examination of this
dispute.
 3. Canada's claim under Article XXIII:1(b) of GATT 1994
8.26 Australia argues that Canada's claim under Article XXIII:1(b) of GATT 1994, i.e., its claim of
non-violation nullification and impairment, falls out side our terms of reference since it was not
identified in Canada's Panel request. Canada disagre es and submits that this claim was raised in its
requests for consultations under GATT and the WTO a nd in its request for the establishment of this
Panel.
8.27 Article 6.2 of the DSU provides in relevant part:
"The request for the establishment of a pa nel shall ... identify the specific measures at
issue and provide a brief summary of the le gal basis of the complaint sufficient to
present the problem clearly".
The Appellate Body Report on European Communities - Regime for the Importation, Sale and
Distribution of Bananas noted the following:

216 Op. cit., para. 145.
217 Paras. 8.6 ff.

"Article 6.2 of the DSU requires that the claims ... must all be specified sufficiently in
the request for the establishment of a panel in order to allow the defending party and
any third parties to know the legal basis of the complaint. If a claim is not specified
in the request for the establishment of a panel, then a faulty request cannot be
subsequently "cured" by a complaining party's argumentation in its first written
submission to the panel or in any other su bmission or statement made later in the
panel proceeding".
218
In its Report on India - Patent Protection for Pharmaceu tical and Agricultural Chemical Products ,
the Appellate Body found:
"In this case ... there is a failure to identify a specific provision of an agreement that is
alleged to have been violated. This falls below the "minimum standards" [established
by Article 6.2 of the DSU] that we were willing to accept in European Communities -
 Bananas".219
8.28 Since in this dispute, Article XXIII of GA TT 1994 is not mentioned by Canada in its request
for this Panel as a legal basis for its complaint ( only as a legal ground to obtain the establishment of
the Panel) and the Panel request does not refer at all to the more specific and quite different non-
violation provision of Article XXIII:1(b) (the Pane l request only refers to the idea of "nullification
and impairment" in the context of measures "inconsis tent" with WTO rules in the sense referred to in
Article XXIII:1(a)), we find that Canada's claim under Article XXIII: 1(b) falls outside our terms of
reference.
 4. Application of GATT 1994 and the SPS Agreement
8.29 Canada first claims that the measure in dispute violates GATT 1994. We note that this
dispute relates to trade in goods ( in casu, imports of certain fresh, ch illed or frozen salmon products)
and that on its face GATT 1994 applies.
8.30 Canada next invokes the SPS Agreement. Bo th parties agree that the SPS Agreement applies
to the measure in dispute. Article 1.1 of the SPS Agreement provides that it applies to
"all sanitary and phytosanitary measures whic h may, directly or indirectly, affect
international trade. Such measures shall be developed and applied in accordance with
the provisions of this Agreement".
Neither of the parties to this dispute contests that th e measure at issue affects international trade. We
agree that it does so.
8.31 With respect to the question whether the measure in dispute is a "sanitary measure",
paragraph 1 of Annex A to the SPS Agreement defines what is considered to be a "sanitary measure"
for purposes of the SPS Agreement. Australia clai ms that the measure in dispute falls under the
following two definitions of a "sanitary measure":
"[a]ny measure applied:
 (a) to protect animal ... life or health within the territory of the Member from
risks arising from the entry, establishmen t or spread of pests, diseases ... or
disease-causing organisms;

218 Op. cit., para. 143, emphasis in original.
219 Adopted 16 January 1998, WT/DS50/AB/R, para. 91.

 (b) to protect ... animal life or health within the territory of the Member from
risks arising from ... disease-causing organisms in foods ...".220
8.32 According to Australia, the measure at issue is applied to protect the life and health of animals
in Australia, more particularly salmonids and other aquatic animals. The protection of human life or
health is not at issue in this dispute. With r espect to the definition of a "sanitary measure" in
paragraph 1(a), Australia argues that the measure at issue is intended to protect Australian salmonids
and other aquatic animals against 24 disease agents ("diseases ... or disease-causing organisms") of
concern to it.
221 To justify that its measure also falls unde r the definition of a "sanitary measure" in
paragraph 1(b), Australia notes that, if allowed into Australia, Canadian salmon would be used as food
(for human consumption). According to Australia , this food could incidentally enter Australian
waterways, (e.g., through waste disposal) where it might be consumed (as feedstuff) by salmon or
other fish and thus adversely affect animal health with any of the 24 diseases of concern.
8.33 Canada argues that the measure in disput e only falls under the definition of a "sanitary
measure" contained in paragraph 1( a) of Annex A. Canada refers to the first introductory paragraph
of the "Salmon Import Risk Analysis, Final Report" of December 1996, put forward by Australia as
the risk assessment on which its measure is based ("1996 Final Report"). That paragraph, entitled
"Purpose of paper", states that the main issues discussed are, inter alia , "the likelihood of disease
entry and establishment" and "the consequences that may arise from that disease entry and
establishment".
222 Canada submits that there is no mention of assessing risks to salmon from disease-
causing organisms in food and that one would not expect such an assessme nt when the product in
question is intended for human consumption.
8.34 In the circumstances at hand, we consider that the definition of a "sanitary measure" in
paragraph 1(a) encompasses the c overage sought by Australia under th e definition in paragraph 1(b).
The definition in paragraph 1(a) deals with risks ar ising from "the entry, establishment or spread of
pests, diseases ... or disease-causing organisms" in general. In the context of disease-causing
organisms, the definition in paragraph 1(b) is li mited in the sense that it only addresses risks arising
from "disease-causing organisms in foods, beverages or feedstuffs" (hereafter also referred to as food-
borne risks). We are of the view that, even thou gh both definitions of a "sanitary measure" invoked
by Australia might be applicable to the measure in dispute, the objectives for which that measure is
being applied are more appropriate ly covered by the definition in paragraph 1(a). These objectives
have been clearly expressed by Australia on several occasions.
8.35 First, QP86A itself provides that the import of salmon products is prohibited unless they have
been "subject to such treatment as in the opini on of the Director of Quarantine is likely to prevent the
introduction of any infectious or c ontagious disease, or diseases or pest affecting persons, animals or
plants".223 Second, in the 1996 Decision as well, the risk against which protection is required is stated
to be "the probability of establishment of ... diseases" . None of the Australian measures submitted to
the Panel are limited to, or even explicitly menti on, food-borne risks. Third, also the 1996 Final
Report, submitted by Australia as the risk assessment on which its measure is based, assesses the risks
related to "disease entry and establishment" and "t he consequences that may arise from that disease
entry and establishment". 224 Even though the Report is base d on the premise that the imported
product is food intended for human c onsumption, it does not only address risk to fish life or health
arising from this "food" infected with diseases in th e event this "food" were to end up in Australian
waterways and be eaten by individual fish. The scope of the 1996 Final Report is, indeed, much
wider in that it assesses risk related to the entry, establishment and further spread of these diseases in
Australia more generally.

220 Paragraph 1(a) and (b) of Annex A.
221 The 24 diseases of concern to Australia are summed up in Table 3 of the descriptive part.
222 DPIE, Salmon Import Risk Analysis, Final Report, December 1996, p.3.
224 1996 Final Report, p.3.

8.36 In this respect we also note that all Aust ralian measures submitted to the Panel, as well as the
1996 Final Report, are explicitly presented by Australia as "quarantine" measures or documents, (e.g.,
Quarantine Proclamation 86A, the 1988 Conditions issued by the Director of Quarantine, the 1996
Final Report is subtitled "An assessmen t by the Australian Government of quarantine controls
on ..."). Without defining the word "quarantine" as it is used in the SPS Agreement, we consider that
the concept of "quarantine" more generally is co mmonly understood to relate to avoiding the spread
of pests or diseases (in the sense of the definition of a "sanitary measure" in paragraph 1(a)). It is not
limited to protecting the life or health of individua l human beings or animals against food-borne risks
(in the sense of the definition in paragraph 1(b)).225
8.37 On these grounds, we find that, even though both definitions of a "sanitary measure" invoked
by Australia might be applicable to the measure in dispute, in the specific circumstances of this case
we need to examine this measure as a measure app lied "to protect animal ... life or health within
[Australia] from risks arising from the entry, est ablishment or spread of pests, diseases ... or disease-
causing organisms" in the sense of paragraph 1(a) of Annex A to the SPS Agreement. Given our
earlier considerations in paragraph 8., we thus fi nd that the SPS Agreement applies to the measure in
dispute.
 5. Relationship between the SPS Agreement and GATT 1994
8.38 We found that both GATT 1994 and the SPS Agreem ent apply to the measure in dispute. The
question now arises which of these we should examine first.
8.39 Canada recognizes that the SPS Agreement provides for obligations additional to those
contained in GATT 1994, but, nevertheless, first a ddresses its claim under Article XI of GATT 1994.
Australia invokes Article 2.4 of the SPS Agreement, which presumes GATT consistency for measures
found to be in conformity with the SPS Agreement 226, to first address the SPS Agreement. We note,
moreover, that (1) the SPS Agreement specifically addresses the type of measure in dispute, and
(2) we will in any case need to examine the SPS Agreement, whether or not we find a GATT violation
(since GATT consistency is nowhere presumed to c onstitute consistency with the SPS Agreement).
In order to conduct our consideration of this dispute in the most efficient manne r, we shall, therefore,
first address the claims made by Canada unde r the SPS Agreement before addressing those put
forward under GATT 1994.227
D. THE SPS AGREEMENT
 1. Burden of proof
8.40 Turning first to the question of burden of proof under the SPS Agreement, we note the
following statement of the Appellate Body in its Report on EC - Hormones:
"The initial burden lies on the complaining party, which must establish a prima facie
case of inconsistency with a particular provision of the SPS Agreement on the part of

225 The New Shorter Oxford English Dictionary defines "qua rantine" as "[a] period of isolation, orig. of forty
days, imposed on a person, animal, or thing that might otherwise spread a contagious disease " (Clarendon Press,
Oxford, Vol. 2, p.2440, emphasis added). Webster's New Encyclopedic Dictionary (Könermann, Cologne, 1994,
p.828) defines "quarantine" as "2: a restraint upon the activ ities or movements of persons or the transport of goods
designed to prevent the spread of disease or pests" (emphasis added).
226 SPS Article 2.4 provides as follows: "Sanitary or phyt osanitary measures which conform to the relevant
provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the
provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of
Article XX(b)".
227 In this respect, we follow the approach taken in the Panel Reports on EC - Hormones, complaints by the
United States and Canada, adopted 13 February 1998 (modified on appeal on other grounds), WT/DS26/R/USA and

the defending party, or more precisely, of its SPS measure or measures complained
about. When that prima facie case is made, the burden of proof moves to the
defending party, which must in turn counter or refute the claimed inconsistency".228
In this dispute it is thus for Canada to establish a prima facie case of inconsistency of the Australian
measure at issue with each of the provisions of the SPS Agreement Canada invokes. Once this is
done, it is for Australia to counter or refute the cl aimed inconsistency. In other words, if Canada
"adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts
to [Australia], who will fail unless it adduces sufficient evidence to rebut the presumption".229
8.41 In this respect - and especially following co mments made by Australia at the interim review
stage that our legal reasoning and findings do not re flect an objective assessment of the matter before
us, undertake a de novo risk assessment and are based on motives or intent - we stress that in
examining this case we did not attempt (nor are we , in our view, allowed) to conduct our own risk
assessment or to impose any scientific opinion on Australia. We only examined and evaluated the
evidence - including the information we received fro m the experts advising the Panel - and arguments
put before us in light of the relevant WTO provisi ons and, following the rules on burden of proof set
out above, based our findings on this evidence and these arguments.
 2. Sequence of claims to be addressed
8.42 Canada claims, in the following order, violati ons of Articles 3.1 and 3.3, Articles 5.1, 5.2, 5.5
and 5.6 and Articles 2.2 and 2.3 of the SPS Agreement. Australia addresses these claims in a different
order, first presenting arguments under Article 2 of the SPS Agreement and further following a
numerical order.
8.43 The question thus arises which of these provisions of the SPS Agreement we should address
first in this particular dispute.
8.44 We note that Article 3, the first Article invoked by Canada, provides in relevant part:
"1. To harmonize sanitary and phytosanitary measures on as wide a basis as
possible, Members shall base their san itary or phytosanitary measures on
international standards, guidelines or reco mmendations, where they exist, except as
otherwise provided for in this Agreement, and in particular in paragraph 3.
2. Sanitary or phytosanitary measures whic h conform to international standards,
guidelines or recommendations shall be deemed to be necessary to protect human,
animal or plant life or health, and presume d to be consistent with the relevant
provisions of this Agreement and of GATT 1994.
3. Members may introduce or maintain sanitary or phytosanitary measures
which result in a higher level of sanitary or phytosanitary protection than would be
achieved by measures based on the relevant international standards, guidelines or
recommendations, if there is a scientific justification, or as a consequence of the level
of sanitary or phytosanitary protection a Me mber determines to be appropriate in
accordance with the relevant provisions of paragraphs 1 through 8 of Article 5.
Notwithstanding the above, all measures whic h result in a level of sanitary or
phytosanitary protection different from that which would be achieved by measures

228 Adopted 13 February 1998, WT/DS26/AB/R, para. 98. See also the Panel Reports on EC - Hormones ,
op. cit., respectively, at paras 8.51 and 8.54.
229 Appellate Body Report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses
from India, adopted 23 May 1997, WT/DS33/AB/R, p.14.

based on international standards, guide lines or recommendations shall not be
inconsistent with any other provision of this Agreement".
According to Article 3.2, if the measure in disput e conforms to international guidelines, it shall be
presumed to be consistent with both the SPS Agreemen t and GATT 1994. In that event, there would,
at first sight, be no further need to address the SPS provisions at issue other than Article 3 ( in casu,
Articles 2 and 5). This could be a reason to first address Article 3. 230 However, in the particular
circumstances of this case, several considerations lead us to not first examine Article 3.
8.45 First, Australia - in this case the WT O Member imposing the sanitary measure - does not
claim that its measure conforms to inte rnational guidelines. Australia submits, inter alia, that there
are no international guidelines for some of the diseases of concern and that the measure at issue
validly aims at a higher level of protection than th at reflected in the international guidelines referred
to. Therefore, the reason to address Article 3 fi rst, because it could lead to a presumption of
consistency with all other SPS provisions, does not apply in this case.
8.46 Second, the dispute before us concerns the importation of salmon products, which according
to Australia could carry up to 24 diseases . Paragraph 3(b) of Annex A to the SPS Agreement
indicates that the international standards, guidelines or recommendations referred to in Article 3 for
animal health (the concern at issue in this dispute) are those developed under the auspices of the
International Office of Epizooties ("OIE"). Both parties agree that the International Aquatic Animal
Health Code adopted by the OIE in 1995 ("OIE Code") provides international guidelines on a disease-
by-disease basis. However, they al so agree that as of today no relevant OIE guideline exists which
deals with salmon on a product specific basis. More over, both parties also agree that OIE guidelines
do not exist for all of the 24 diseases of concern to Au stralia. Therefore, even if we were to examine
first, if and how many relevant internationa l guidelines exist and second address the question of
whether Australia deviates from these guidelines, we would thereafter still need to examine either
(1) in the event Australia does de viate from any such guidelines contrary to Article 3, whether the
measure in dispute could not be based on Australia's concern for any of the other diseases for which
no international guideline exists ( in casu , under Articles 2 and 5); or (2) in the event Australia's
measure is based on and/or conforms to any such guidelines, whether that part of the measure for
which no guidelines exist, is consistent with the pr ovisions of the SPS Agreement other than Article 3
(in casu, Articles 2 and 5). In this respect, we are of th e view, however, that the fact that in this case
no international guidelines exist for all 24 diseases of concern does not mean that an international
guideline which applies to only one of these diseases cannot be relevant (or, according to the language
of Article 3.1, does not "exist") for the measure at issue.
8.47 For the reasons mentioned above, even if we were to start our examination of this dispute
under Article 3, we would in any event be referred to and thus still need to address Articles 2 and 5.
To conduct our examination of this case in the most ef ficient manner, we shall, therefore, first address
Articles 2 and 5.
8.48 Article 2, entitled "Basic Rights and Obligations", elaborates on the basic rights and
obligations of WTO Members under the SPS Agreemen t. Article 5, under the heading "Assessment
of Risk and Determination of the Appropriate Le vel of Sanitary or Phytosanitary Protection",
provides, inter alia, more detailed obligations with resp ect to risk assessment, establishes the
objectives of minimizing negative trade effects and of achieving consistency in levels of protection
and specifies that sanitary measures should not be more trade-restrictive than required. The Appellate
Body Report on EC - Hormones on several occasions stressed the close relationship between
Articles 2 and 5 (in particular between Articles 2.2 and 5.1 and Articles 2.3 and 5.5, all of which are at

230 We note that the Panels in EC - Hormones started their examination under Article 3 (op. cit., US
complaint, paras. 8.45 and 8.56 ff.; Canadian complaint, paras. 8.48 and 8.59 ff.).

issue in this dispute).231 The Appellate Body repeatedly noted that the more general Article 2 imparts
meaning to and is part of the context of the mo re specific Article 5 and that both Articles should
constantly be read together. 232 However, even if we read Articles 2 and 5 together during our
examination of this case, in practice we still have to decide which set of Canadian claims (those under
Article 2 or those under Article 5) to address first. Si nce in this particular case, (1) Canada itself first
presents its claims under Article 5, before addressi ng those under Article 2, and (2) the provisions
invoked by Canada under Article 5 (i.e., Articles 5.1, 5.2, 5.5 and 5.6) all provide for more specific
and detailed rights and obligations than the "Basic Rights and Obligations" set out in rather broad
wording in the provisions invoked by Canada under Article 2 (i.e., Articles 2.2 and 2.3) 233, we
consider it more appropriate in the circumstances of this dispute to first deal with Canada's claims
under Article 5.234
 3. Canada's claims under Articles 5.1 and 5.2: Sanitary measures are to be based
on a risk assessment
8.49 Canada submits that the measure in dispute is inconsistent with Articles 5.1 and 5.2, which
provide as follows:
"1. Members shall ensure that their sanita ry or phytosanitary measures are based
on an assessment, as appropriate to the circ umstances, of the risks to human, animal
or plant life or health, taking into account risk assessment techniques developed by
the relevant international organizations.
2. In the assessment of risks, Member s shall take into account available
scientific evidence; relevant processes a nd production methods; relevant inspection,
sampling and testing methods; prevalence of specific diseases or pests; existence of
pest- or disease-free areas; relevant ecological and environmental conditions; and
quarantine or other treatment".
Both parties agree that the OIE Code, in partic ular its Section 1.4 on "Import risk analysis"
235 which,
inter alia, provides "Guidelines for Risk Assessment ", contains "risk assessment techniques
developed by the relevant intern ational organizations" to be take n into account by Australia under
Article 5.1.
8.50 Canada does not challenge the measure at i ssue under Article 5.3 (elaborating on the "relevant
economic factors" to be taken into account in a ri sk assessment) nor do we see any reason to further
examine this provision.
8.51 We recall that Articles 5.1 and 5.2 may be vi ewed as one of the specific applications of the
basic obligations contained in Article 2.2236, which provides as follows:
"Members shall ensure 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

231 Op. cit., paras. 180, 212, 238 and 250.
232 Ibid.
233 In this respect we note, however, that not only Article 5, but also most other provisions of the SPS
Agreement provide for more details on the basic rights and obligations set out in Article 2.
234 In this respect we refer to the Appellate Body Report on EC - Regime for the Importation, Sale and
Distribution of Bananas , adopted 25 September 1997, WT/DS27/AB/R, para. 204, which in a different context
applied a similar reasoning: "Although Article X: 3(a) of the GATT 1994 and Article 1.3 of the Licensing Agreement
both apply, the Panel, in our view, should have applied the Licensing Agreement first, since this agreement deals
specifically, and in detail, with the administration of import licensing procedures. If the Panel had done so, then there
would have been no need for it to address the alleged inconsistency with Article X:3(a) of the GATT 1994".
235 OIE Code, pp.29-37.
236 Para. 8.48 and Appellate Body Report on EC Hormones, op. cit., para. 180.

scientific principles and is not maintained without sufficient scientific evidence,
except as provided for in paragraph 7 of Article 5". (underlining added)
As stated by the Appellate Body in EC - Hormones:
"... Articles 2.2 and 5.1 should constantly be read together. Article 2.2 informs
Article 5.1: the elements that define the basic obligation set out in Article 2.2 impart
meaning to Article 5.1".
237
8.52 For these reasons, we consider, more particular ly, that Articles 5.1 and 5.2 - in the words of
the Appellate Body in EC - Hormones when dealing with the relationship between Articles 2.3
and 5.5 - "may be seen to be marking out and ela borating a particular route leading to the same
destination set out in" Article 2.2. Indeed, in th e event a sanitary measure is not based on a risk
assessment as required in Articles 5.1 and 5.2, this measure can be presumed, more generally, not to
be based on scientific principles or to be mainta ined without sufficient scientific evidence. We
conclude, therefore, that if we find a violation of the more specific Article 5.1 or 5.2 such finding can
be presumed to imply a violation of the more genera l provisions of Article 2.2. We do recognize, at
the same time, that given the more general character of Article 2.2 not all violations of Article 2.2 are
covered by Articles 5.1 and 5.2.
 (a) The salmon products in dispute other than those from adult, wild,
ocean-caught Pacific salmon238
8.53 Canada claims that Australia maintains th e measure at issue with respect to the salmon
products in dispute other than those from adult, w ild, ocean-caught Pacific salmon, without any form
of risk assessment. Australia acknowledges that the salmon products at issue in this dispute are not
limited to adult, wild, ocean-caught Pacific salmon. Australia argues that it had initially set in train a
risk assessment of all salmonid product of Canadian or US origin, but that it acceded to the request
from Canada and the United States in late 1994 that priority be accorded to a risk assessment on adult
wild, ocean-caught Pacific salmon, which would redu ce the complexity of the process in regard to a
product of higher commercial significance for Canada and the United States. Australia submits that
since, thereafter, Canada never requested to extend the product coverage of Australia's risk assessment
to all Canadian salmon, Australia cannot be reasonably expected to ha ve a formal risk assessment for
all salmon products at issue. In this respect, Aust ralia refers to Article 5.1 which requires a risk
assessment "as appropriate to the circumstances".
8.54 We recall that the scope of the measure in dispute covers salmon products (1) imported from
Canada, (2) for human consumption, (3) which ar e fresh, chilled or frozen and (4) which originate
from any of six species of salmon identified by Canada (pink salmon, chum salmon, coho salmon,
sockeye salmon, chinook or king salmon, all five being Pacific salmon; and Atlantic salmon). 239
Within this broad category of salmon products at issue five subdivisions can be made: (1) adult, wild,
ocean-caught Pacific salmon; (2) adult, wild, fre shwater-caught Pacific salmon; (3) adult Pacific
salmon cultured in seawater on the Pacific coast; (4) adult Atlantic salmon cultured in seawater on the
Pacific coast; and (5) adult Atlantic salmon cultured in seawater on the Atlantic coast. 240 Of the
salmon products at issue, Australia only claims to have a risk assessment for the first of these five
categories, namely those from adult, wild, ocean-cau ght Pacific salmon. This category represents the

237 Op. cit., para. 180.
238 The salmon products addressed in this section are the salmon products in dispute from (1) adult, wild,
freshwater-caught Pacific salmon; (2) adult Pacific salmon cultured in seawater on the Pacific coast; (3) adult Atlantic
salmon cultured in seawater on the Pacific coast; and (4) adult Atlantic salmon cultured in seawater on the Atlantic
coast.
239 Para. 8.21.
240 In its answer to original Panel Question 2, Canada stated that it only harvests adult salmon for export and
that it does not harvest wild Atlantic salmon for export.

majority of Canadian exports of uncooked salmon.241 With respect to this category of salmon products
Australia submits that the measure in dispute is based on the "Salmon Import Risk Analysis, Final
Report" published by the Department of Primary Industries and Energy in December 1996 (hereafter
referred to as the "1996 Final Report"). With resp ect to the other four categories of salmon products
in dispute, Australia concedes that it has not conducted or relied upon a risk assessment in the sense of
Article 5. In its Rebuttal Submission Australia states the following:
"The risk has been assessed in relation to diseases or disease agents in adult, wild,
ocean caught uncooked salmon of Canadian and US origin. The Final Report of
December 1996 is an assessment of the risk. There is no other risk assessment. No
formal assessment has been undertaken on all uncooked salmon of Canadian origin.
It was the intention to undertake such a risk assessment, but the product coverage was
subsequently limited to the Pacific salmon at the request of Canada and the USA". 242
(underlining added)
The 1996 Final Report itself explains its limited scope as follows:
"Canada and the United States have requested access for salmon products without
reference to the species. However Australia , after consulting with the United States
and Canada, has so far addressed the import of wild, ocean-caught Pacific salmon
only. This allows more focused debate on the disease issues associated with Pacific
salmon. Other classes of product, including aquaculture product and product derived
from other species and/or locations, are exp ected to be characterised by different
disease factors".243 (underlining added)
To this Australia adds in its first submission that "to the extent that a disease agent is common to the
wild Pacific and other Canadian salmon products, the conclusions [reached in the 1996 Final Report]
are equally valid for all fresh, chilled and frozen salmon of Canadian origin".244
8.55 Canada counters that it only suggested to Australia to proceed first with an assessment of
adult, wild, ocean-caught Pacific salmon, on the understanding that an assessment of other salmon
products would soon follow. Canada further submits that given that Australia has prohibited the
importation of all uncooked salmon, and not only adult, wild, ocean-caught Pacific salmon, it is
obliged by the SPS Agreement to asse ss risk with respect to all uncooked salmon; Australia is not
entitled to limit its assessment to adult, wild, ocean-caught Pacific salmon.
8.56 In addressing this issue, we note that Ar ticle 5.1 does not qualify - either in terms of
application in time or product coverage - the s ubstantive obligation imposed on all WTO Members to
base their sanitary measures on a risk assessment. As far as the application in time of the SPS
Agreement is concerned, we refer to the Appellate Body Report on EC - Hormones, which confirmed
that the SPS Agreement applies to sanitary measures enacted before, but maintained after, the entry
into force of the SPS Agreement. 245 In particular Article 2.2 - in light of which Article 5.1 has to be
read - confirms this reading. It provi des that sanitary measures have to be " based on scientific
principles" and "not maintained without sufficient scientific evidence". (emphasis added)

241 According to figures submitted by Canada (not contested by Australia), adult, wild, ocean-caught Pacific
salmon represents seven-year average (1990-1996) of 58 % of all Canadian uncooked salmon for export (see Table 1
in the descriptive part).
242 Australia, Rebuttal Submission, para. 84. See also Australia's answer to Panel Question 2, Australia
answers, p.4: "Australia has not done a risk analysis on farmed Pacific salmon or on commercially produced Atlantic
salmon (which, in Canada, all originates from farms)".
243 1996 Final Report, p.25.
244 Australia, First Submission, para. 137.
245 Op. cit., paras. 126-130.

8.57 As to the product coverage of Article 5.1, the reference contained in Article 5.1 to base
sanitary measures on an assessment "as appropriate to the circumstances" cannot, in our view, annul
or supersede the substantive obligation resting on Australia to base the sanitary measure in dispute
(irrespective of the products that measure may cove r) on a risk assessment. We consider that the
reference "as appropriate to the circumstances" re lates, rather, to the way in which such risk
assessment has to be carried out. 246 Only Article 5.7 allows for an exception to the obligation to base
sanitary measures on a risk assessment, namely "in cases where relevant scientific evidence is
insufficient". In such event "a Member may prov isionally adopt sanitary or phytosanitary measures
on the basis of available pertinent information" . Article 5.7 adds, however, that "[i]n such
circumstances, Members shall seek to obtain the additional information necessary for a more
objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a
reasonable period of time". In this dispute Australia has not invoked Article 5.7. Nor do we consider
that this provision applies to the measure in dis pute, given the fact that it was imposed more than
20 years ago and can thus hardly be seen as a measu re "provisionally" adopted. Articles 5.2 and 5.3,
in turn, only qualify the way in which a risk assessment has to be carried out, not the substantive
obligation to base a sanitary measure on a risk assessment.
8.58 Furthermore, we do not consider that Cana da's request or agreement to initially limit the
scope of Australia's risk assessment to adult, wild, ocean-caught P acific salmon overrides Australia's
substantive obligation to base the sanitary measure in dispute on a risk assessment for all salmon
products covered by that measure. We recall, in this respect, that to the extent Canada brought a
complaint under QP86A the scope of this dispute is wider than adult, wild, ocean-caught Pacific
salmon. As to the second argument forwarded by Australia on this issue
247, we do not consider - nor
has Australia claimed - that the 1996 Final Report (w hich is explicitly limited to adult, wild, ocean-
caught Pacific salmon) constitutes a risk assessment , in the sense of Article 5.1, for the other
categories of salmon products covered by the measure in dispute. We do, however, agree with
Australia that some of the evid ence, assessments and conclusions contained in the 1996 Final Report
might be relevant for the risk ass essment to be carried out (or relie d upon) for the other categories of
salmon products and that, therefore, a completely ne w risk assessment for th ese other categories of
salmon products might not be necessary. In support of this, we note the opinion of the following
scientific experts advising the Panel248:
Burmaster (Transcript, para. 14):
"... here we have, in this situation, mu ltiple fish diseases, potentially multiple fish
diseases and potentially multiple target species of fish. The question has arisen if
there are ten diseases of fish - ten different diseases - and five different fish species,
to make up a hypothetical argument, do we have to multiply those and do fifty, ten
times five, different risk assessments? I think, as a practical matter one need not have
to do fifty different risk assessments. I thi nk that there are ways to sort through that,
it may be that you would have to do one or two or smaller number of risk assessments
not a full number of fifty".
Rodgers (Answer to Panel Question 11, Rodgers answers, page 15
249:
"Some of the data and findings contained in the Australian Final Report dealing with
wild ocean-caught adult Pacific salmon could be validly used in a risk assessment for
the four other categories of salmon [adu lt wild freshwater-ca ught Pacific salmon,
adult Pacific salmon cultured in seawater on the Pacific coast, adult Atlantic salmon

246 See further in para. 8.70.
247 Para. 8.54 in fine.
248 We only refer to three of the four experts advisi ng the Panel since only these three have expressed an
opinion on this issue.

cultured in seawater on the Pacific coast and adult Atlantic salmon cultured in
seawater on the Atlantic coast]. However, th ere are additional factors to consider for
aquacultured species and wild freshwater- caught species, as opposed to wild ocean-
caught fish. These would include the presence of known vectors (and alternative host
species), the access of anadromous fish to water supplies, protected water sources ...".
Wooldridge (Answer to Panel Question 4, Wooldridge answers, page 10):
"With regard to imports of other product s of other species known to carry the same
diseases, information on the existence of such products is important in two respects.
First, a comparison with other products may provide data necessary to assess the
probability of exposure, transmission and consequences of a given disease post-entry
within a country or region. Secondly, the information on the existence of such
products is an important part of the overa ll risk analysis (as opposed to the risk
assessment) and should be sought as part of that analysis ...
Whether a complete risk assessment of any other particular product is required
depends on the precise situation; in certain circumstances it may be enough to
demonstrate that a particular product containing a given disease agent, and subject to
similar use and disposal pathways, has been imported regularly for many years with
no detected disease consequences".
8.59 Recalling the relatively wide range of sa lmon products covered by the sanitary measure in
dispute and noting the relatively limited scope of salmon products dealt with in the 1996 Final Report
- the only risk assessment submitted by Australia - we consider, therefore, that Canada has raised a
presumption (i.e., made a prima facie case) that the measure in dispute in so far as it relates to salmon
products at issue other than those covered by the 1996 Final Report (i.e., other than adult, wild, ocean-
caught Pacific salmon) is not based on a risk asse ssment in accordance with Article 5.1 and that
Australia, in turn, has not provided evidence to rebut that presumption. To that extent we thus find
that Australia, by maintaining the measure at issue, acts inconsistently with Article 5.1. Given our
earlier finding -that a violation of the more specific Article 5.1 can be presumed to imply a violation
of the more general provisions of Article 2.2
250 - we find that Australia, to that extent, also acts
inconsistently with Article 2.2.
8.60 Given the fact that (1) most of the studies and reports before us, a nd in particular the 1996
Final Report (Australia's only formal risk assessm ent) specifically address and discuss adult, wild,
ocean-caught Pacific salmon (even though the data they contain may relate to or be relevant for other
salmon) and (2) Canada itself also focused on adult, wild, ocean-caught Pacific salmon during our
proceedings, we, in turn, concentrated our attenti on and questions (to both the parties and the experts
advising the Panel) on adult, wild, ocean-caught P acific salmon. For these reasons, the evidence and
arguments before us which are relevant to Artic les 5.5 and 5.6 are centred on adult, wild, ocean-
caught Pacific salmon. We do not therefore consider it appropriate or necessary "in order to resolve
the matter in issue in the dispute"
251 to further address the salmon products in dispute other than those
from adult, wild, ocean-caught Pacific salmon. Any subsequent findings we thus make are limited to
those salmon products at issue from adult, wild, ocean -caught Pacific salmon. Hereafter, we refer to
this more limited category of salmon products at issue as "the salmon products further examined".

250 Para. 8.52.
251 Appellate Body Report on US - Measure Affecting Imports of Woven Wool Shirts and Blouses from India ,
adopted 23 May 1997, WT/DS33/AB/R, pp.17-20, addressing the issue of judicial economy, at p.19 ("A panel need
only address those claims which must be addressed in order to resolve the matter at issue in the dispute").

 (b) Salmon products in dispute from adult, wild, ocean-caught Pacific
salmon (i.e., the "salmon products further examined")
 (i) Arguments of the parties
8.61 Canada argues that the 1996 Final Report - invoked by Australia as the risk assessment on
which its measure as it applies to the salmon products further examined is based - is not a "proper"
risk assessment in the sense of Articles 5.1. For Canada, a "proper" risk assessment has to:
(1) evaluate the likelihood (i.e., determine the probability) of the establishment of the diseases of
concern on the basis of an examination of the differe nt possible scenarios and the different sub-events
required for such establishment to take place (not si mply posit, as - according to Canada - Australia
did, the possibility of disease establishment, however remote); (2) make such evaluation for each
disease of concern (not just assess, as - according to Ca nada - Australia did, the totality of risk linked
to 24 different diseases); and (3) make such evaluation for each SPS measure which might be applied
(i.e., for all five quarantine policy options mentione d in the 1996 Final Report). For Canada these
three requirements can be deduced from the first pa rt of the definition of "risk assessment" provided
in paragraph 4 of Annex A to the SPS Agreement:
"Risk assessment - The evaluation of the likelihood of entry, establishment or spread
of a pest or disease within the territory of an importing Member according to the
sanitary or phytosanitary measures which mi ght be applied, and of the associated
potential biological and economic consequences or the evaluation of the potential for
adverse effects on human or animal health arising from the presence of additives,
contaminants, toxins or disease-causing organi sms in food, beverages or feedstuffs".
(underlining added by Canada)
In support of its claim that these three requirements ex ist, Canada further refers to the definitions of
risk and risk assessment, as well as the "Guidelines for Risk Assessment", provided in the OIE Code
which, according to Canada, have to be taken into account as "risk assessment techniques" in
accordance with Article 5.1.
8.62 According to Canada the second part of th e definition of "risk assessment" in paragraph 4
does not apply in this case. Canada submits that the two parts of the definition are mutually
exclusive. In support of this Canada puts forw ard the same arguments as those it developed under
paragraph 1 of Annex A which provides the definitions of a "sanitary measure".
252
8.63 Canada also argues that the SPS measure at issu e - which is in Canada's view heat treatment -
is not "based on" a risk assessment in the sense required by the Appellate Body in EC - Hormones .
For Canada, there is no rational relationship between the heat-treatment conditions set out in
Australia's measure and the availa ble scientific evidence contained in the 1996 Final Report. Canada
further submits that Australia, therefore, also violat es Article 5.2 in that it does not "take into account
available scientific evidence" in assessing risk.
8.64 Australia points out that the definition of "risk assessment" as set out in paragraph 4 of
Annex A contains two parts joined by the word "or". For Australia, this clearly indicates that there is
no requirement for a risk assessment to meet all the terms in paragraph 4. According to Australia,
compliance with either of the two parts of the defi nition is sufficient and Canada does not contest that
the 1996 Final Report complies with the second part.
8.65 Australia argues that Canada's assertion that a risk assessment need s to make probabilistic
estimates has been rejected by the Appellate Body in EC - Hormones where the requirement for a risk

252 Para. 8.33.

assessment "to establish a minimum magnitude of risk" 253 was rejected. For Australia, a risk
assessment in accordance with Article 5 need not be a quantitative risk assessment, but may also be -
especially where scientific data is not complete - qualitative and need not separately evaluate risk of
occurrence for each disease and for each measure whic h might be applied. Australia submits that
Canada reads requirements in the definition of "risk assessment" provided in the SPS Agreement for
which there is no textual basis. For Australia, the important words in the definition of risk assessment
are "evaluation of likelihood". According to Australia , there is no limitation as to the form that this
evaluation should take except that it should cons ider the possible management measures and the
consequences. Australia concludes that the 1996 Fi nal Report achieves this and makes an evaluation
that the risk is unacceptable. Australia submits th at there are many different methodologies for risk
assessment and that views of risk assessment techniques vary between experts, over time and on a
case by case basis, as explicitly recognized by the re quirement in Article 5.1 that a risk assessment
should be "as appropriate to the circumstances".
8.66 With respect to the OI E risk assessment techniques relie d upon by Canada, Australia argues
that they have been fully "taken into account" in the 1996 Final Report as required in Article 5.1.
Australia also refers to Article 1.4.1.3 of the OIE Code on "Methodology":
"Risk analysis must be able to deal with the complexities of real life situations and no
single method is applicable in all cases. Fo r this reason, countries wanting to conduct
import risk analyses may find it necessary to design their own process for carrying
out the exercise. Several countries have already developed processes".
254
8.67 With respect to Canada's claim that the measure at issue is not "based on" the 1996 Final
Report, Australia submits that Article 5.1 requires that the results of a risk assessment must
sufficiently warrant or reasonably support the SPS measu re at stake, but that this does not require the
risk assessment to embody only the view of the ma jority of the scientific community. Australia
argues that heat-treated product was not addressed in the 1996 Final Report because Canada's request
for access was limited to fresh, chilled and frozen product.
 (ii) The applicable definition of "risk assessment"
8.68 We first address the problem of which of th e two definitions of "risk assessment", provided in
paragraph 4 of Annex A to the SPS Agreement, apply to this dispute. We recall our finding that in
this case we need to examine the measure in dis pute as a sanitary measure applied "to protect animal
... life or health within [Australia] from risks arising from the entry, establishment or spread of pests,
diseases ... or disease-causing organisms" in the sense of paragraph 1(a) of Annex A (rather than a
"sanitary measure" in the sense of paragraph 1(b) of that Annex). We consider, moreover, that there
is a close link between the defnition of a "sanitary me asure" in paragraph 1(a) and the first definition
of "risk assessment" in paragraph 4, as well as be tween the definition of a "sanitary measure" in
paragraph 1(b) and the second defi nition of "risk assessment" in paragraph 4. The first set of
definitions deals with risks arising from the entry, es tablishment or spread of pests or diseases. The
second addresses risks arising from specific substances in food, beverages or feedstuffs. We note that
this link has been confirmed in the panel and Appellate Body Reports on EC - Hormones where the
measure at issue was found to be a sanitary meas ure in the sense of paragraph 1(b) and the risk
assessment had to be in accordance with the second definition in paragraph 4.
255
8.69 In this case, we find, therefore, that since th e measure in dispute is a "sanitary measure" in the
sense of paragraph 1(a), it has to be based on a "ris k assessment" in the sense of the first definition of
paragraph 4, i.e., on an

253 Appellate Body Report, op. cit., para. 186.
254 OIE Code, Chapter 1.4.1, p. 30.
255 Op. cit., para. 182, and Panel Reports, op. cit., paras. 8.21, and 8.98, (US complaint) and paras. 8.24, and
 8.101, (complaint by Canada).

"evaluation of the likelihood of entry, est ablishment or spread of a pest or disease
within the territory of an importing Member according to the sanitary or
phytosanitary measures which might be a pplied, and of the associated potential
biological and economic consequences ...".
 (iii) Is the 1996 Final Report a risk assessment in accordance with
Articles 5.1 and 5.2 ?
8.70 To answer the question whether the 1996 Final Report constitutes a risk assessment as
required under the SPS Agreement, we need to examine and apply Articles 5.1 and 5.2 256 as well as
the definition of risk assessment applicable in th is case and this, in our view, in light of both
Article 2.2 and the "risk assessment techniques deve loped by relevant inte rnational organizations"
(in casu, those of the OIE) which WTO Members, in acco rdance with Article 5.1, have to "take into
account".
8.71 Following Article 5.1, a risk assessment need s to be "appropriate to the circumstances".
Answering a Panel question in this respect, Canada is of the view that the circumstances thus referred
to are the source of the risk (e.g., an animal pat hogen or a chemical contaminant) and the subject of
the risk (i.e., whether it is to human, animal or plant life or health). For Australia, the phrase "as
appropriate to the circumstances" confers a right and obligation on WTO Members to assess the risk,
on a case by case basis, in terms of product, origin and destination, including, in particular, country
specific situations. We agree that both interpretati ons may be covered by the term "as appropriate to
the circumstances". In our view, also the OIE ri sk assessment techniques as well as the scientific
opinions we gathered, may shed light on what is a risk assessment "appropriate to the circumstances".
8.72 Examining the definition of risk assessment applicable to the measure at issue, i.e., the
"evaluation of the likelihood of entr y, establishment or spread of a pest or disease within the territory
of an importing Member according to the sanitary or phytosanitary measures which might be applied,
and of the associated potential biological and economic consequences", we consider, first of all, that
the risk thus to be assessed includes (1) the risk of "entry, establishment or spread" of a disease and
(2) the risk of the "associated potential biologi cal and economic consequences". When we refer
hereafter to the risk related to a disease, this risk thus includes the risk of entry, establishment or
spread of that disease as well as the biological a nd economic consequences associated therewith. We
further note that, in our view, three elements are contained in this definition of risk assessment:
(1) the definition of risk assessment im plies that the Member imposing the
sanitary measure first has to identify the disease(s) whose "entry, establishment or
spread" within its territory it wants to prevent as well as the "associated potential
biological and economic consequences";
(2) the definition then requires an " evaluation of the likelihood " of entry,
establishment or spread of these diseases and of the associated potential biological
and economic consequences"; and
(3) the definition further requires that the evaluation of the likelihood of entry,
establishment or spread of these diseases be conducted " according to the sanitary ...
measures which might be applied".
We next examine whether the 1996 Final Report fulfils these three requirements.

256 We recall that in this dispute Canada does not contest that the 1996 Final Report meets the requirements

Identification of the disease(s) whose "entry, est ablishment or spread" Australia wants to prevent
and of the "associated potential biological and economic consequences"
8.73 The 1996 Final Report identifies 24 diseases who se "entry, establishment or spread" Australia
wants to prevent257 as well as the "potential biological and economic consequences" associated to the
entry, establishment or spread of these 24 diseases. 258 We thus find that the 1996 Final Report meets
the first requirement of a risk assessment in accord ance with Article 5.1. In reply to a Canadian
comment made at the interim review stage, we note that our finding that Australia thus identified 24
diseases of concern to Australia does not mean that the measure at issue also actually addresses these
diseases in the sense that this measure actually affe cts the likelihood of the entry, establishment or
spread of these diseases into Australia. The latter element is addressed in the section of our report
where we examine whether the measure at issue is "based on" a risk assessment.259
An "evaluation of the likelihood" of entry, establishment or spread of the disease(s) of concern and
of the associated biological and economic consequences
8.74 We agree with Canada that, given the definiti on of risk assessment applicable in this case (the
"evaluation of the likelihood of entry, establishment or spread of a ... disease", in the singular form), a
risk assessment for the measure at issue in this dispute at least has to identify risk on a disease specific
basis, i.e., it has to identify the risk for any given disease of concern separately, not simply address the
overall risk related to the combination of all diseases of concern. (The issue of how the risk thus
identified should be evaluated is addressed in paragraphs 8.76 and following.) The experts advising
the Panel on this issue confirmed this. 260 In the EC - Hormones case as well, both the panels and the
Appellate Body required some degree of specificity for a risk assessment - or a study or report
allegedly part thereof - to be in accordance with the requirements imposed in Article 5.1.
261 We
recognize, however, that some of the elements of an assessment of risk related to one disease might be
used as part of the assessment for another disease and that, in that sense, disease-by-disease
assessments may overlap. 262 We also acknowledge that as soon as there is a disease specific
assessment for one disease of concern on which the sanitary measure as a whole can be based, there
might be no more need to assess risk related to the other diseases of concern.

257 1996 Final Report, pp.18-19. Australia slightly change d this list in its submissions before the Panel (see
Table 3 in the descriptive part).
258 1996 Final Report, Section 3 (Impact of salmonid disease introduction into Australia).
259 Paras. 8.93 ff.
260 Rodgers, Transcript, para. 28: "If you are concerned about several diseases, effectively the risks are
identified by drawing up a list of the potential diseases of concern that would be associated with the importation of a
particular fish product, followed by an examination of th e consequences of their entry and establishment. Now,
although many risk factors are common between different dis eases, each disease may have unique factors to consider
and each of these will have a variable quality and quantitative of available data that will need to be dealt with
separately, which does make it necessary to assess risks on a disease-by-disease basis " (emphasis added); Winton,
Answer to Panel Question 29, Winton answers, p.4: "I believe the FDC ["Fish Diseases Commission" of the OIE]
would support the concept of individual risk assessment for each listed disease because important epidemiological
features (presence of susceptible hosts, temperatures etc.) will vary with each country"; Wooldridge, Answer to Panel
Question 29, Wooldridge answers, p.14: "... in consider ing any particular product for import, and in undertaking a
risk assessment for that product, each potential disease hazard identified has to be separately assessed"; see also
Wooldridge, Answer to Panel Questions 3 and 4, Wooldri dge answers, p.9 and Wooldridge, Transcript, para. 242.
Burmaster did not express his view on this specific issue.
261 This, not in the sense of requiring a disease specific assessment, but by requiring a separate assessment
for each of the six hormones at issue, when used for growth promotion purposes and requiring the evaluation of risks
arising specifically from hormones in meat or meat produc ts (Appellate Body Report, op. cit., paras. 199-200, also
confirmed in para. 141 and Panel Reports, op. cit., paras. 8.129 and 8.257 (US complaint), and paras. 8.132 and 8.260
(complaint by Canada).
262 Para. 8.58.

8.75 We note, however, that, according to the experts advising the Panel on this issue 263, the 1996
Final Report does identify the risk of disease "entry, establis hment or spread" on a disease specific
basis. Section 1.4 of the Report examines "Ris k analysis factors" on a disease-by-disease basis and
provides specific "Disease agent conclusions". 264 Section 2 provides a detailed "Technical Review of
Data for 24 Salmonid Diseases", doing so disease-by-disease. 265 We, therefore, reject Canada's claim
to the extent it implies that the 1996 Final Report does not identify risk on a disease-by-disease basis.
In response to a Canadian comment made at the in terim review stage, we note that our finding that
Australia thus identified risk on a disease specific basis, do es not mean that Australia also evaluated
or assessed this risk as required in the definition of risk assessment. The requirement of an
"evaluation of the likelihood" of risk is addressed in the following paragraphs of our report.
8.76 Canada also puts forward the requirement - al legedly contained in Artic le 5.1 - to determine
the probability of the adverse effects occurring, as opposed to only addressing possibility. In its
answer to Panel Question 19, Canada agreed, however, that this requirement can be fulfilled by either
a quantitative or qualitative risk assessment. For Canada, probability could be expressed qualitatively
by saying, for example, that the probability of a risk event is "extremely low" or is "negligible".
8.77 We recall, first, that the definition of risk assessment applicable in this dispute requires the
"evaluation of the likelihood of entry, establishment or spread of a pest or disease ... and of the
associated potential biological and economic conse quences". We further note the following statement
by the Appellate Body in EC - Hormones with respect to the meaning of "potential" or "possibility" as
opposed to "probability":
"The ordinary meaning of "potential" relates to "possibility" and is different from the
ordinary meaning of "probability". "Pr obability" implies a higher degree or a
threshold of potentiality or possibility".266 (underlining added)
A footnote to this sentence reads as follows:
"The dictionary meaning of "potential" is "that which is possible as opposed to actual;
a possibility"; L. Brown (ed.), The New Shorter Oxford English Dictionary on
Historical Principles , Vol. 2, page 2310 (Clarendon Press, 1993). In contrast,
"probability" refers to "degrees of likelihood; the appearance of truth, or likelihood
of being realized", and "a thing judged likely to be true, to exist, or to happen"; Id.,
page 2362". (underlining added)
The Appellate Body, referring to the ordinary meani ng of "probability", thus related "likelihood" (the
word used in the definition of risk assessment applicable in this case) to "probability". The dictionary
meaning of "likelihood" refers, indeed, to "a thing that is likely, a probability".267
8.78 We further note that the requirement to evalua te "likelihood" or "probability" is also reflected
in the OIE definition of risk and risk assessm ent, as well as in the OIE "Guidelines on Risk
Assessment":

263 Rodgers' Answer to Panel Question 1, Rodgers answ ers, p.3, when assessing both the 1995 Draft Report
and the 1996 Final Report: "The other basic factors required for a risk assessment, namely country factors, commodity
factors, exposure factors and reduction factors, are considered on a diseas es by disease basis from a textual
technical/scientific point of view. The potential adverse consequences of disease introduction are also outlined in the
same way" (see also Rodgers, Transcript, para. 26) and Wooldridge, Transcript, para. 59: "Section 2 of the 1996 Final
Report describes, with references, the diseases it considers relevant on a disease-by-disease basis, with a summary of
the information given". Burmaster and Winton did not express their view on this specific issue.
264 1996 Final Report, pp.37-56.
265 Ibid., pp.132-270.
266 Op. cit., para. 184.
267 L. Brown (ed.), The New Shorter Oxford English Dictionary on Historical Principles , Vol. 2, p.1588,
Clarendon Press, 1993.

"Risk - means the probability of an adverse event of aquatic animal health, public
health or economic importance, such as a disease outbreak, and the magnitude of that
event.
Risk assessment - means the processes of identifying and estimating the risks
associated with the importation of a comm odity and evaluating the consequences of
taking those risks".268 (underlining added)
"Guidelines for Risk Assessment
Article 1.4.2.1
Estimation of the probability of an adverse event
In the risk assessment of an importation, th e risk associated with one or more disease
agents may have to be considered. The importing country should elaborate the
scenarios that could be involved in the in troduction of a disease agent in an imported
commodity and its subsequent exposure a nd transmission to aquatic animals and
humans.
In constructing a scenario by which a diseas e agent might be introduced into the
importing country, some or all of the following factors (and other factors) need to be
considered:
(1) the probability of the disease agent being present in aquatic animal
populations in the water of origin;
(2) the probability of the disease agent be ing present in the particular aquatic
organism;
(3) he risk of flesh becoming contaminated during processing;
(4) the probability of the disease agent be ing present in the particular tissues
imported;
(5) the probability of infected or cont aminated aquatic animals, gametes,
embryos or product passing diagnostic screening, inspection or grading
procedures;
(6) the probability of the disease agent su rviving at an infectious dose during
processing, transport or storage of the aquatic animals, gametes, embryos or
products under consideration;
(7) the probability of the disease agent comi ng into contact with susceptible hosts
in the importing country at a suitable dose and by a suitable route to cause
infection;
(8) the risk of disease spreading from the index case and establishing in host
populations in the importing country;
(9) risk mitigation by optimising detec tion of pathogens and minimising their
likelihood of survival (see Risk reduction factors).
Each scenario would comprise a set of f actors that should be identified for the
estimation of the likelihood of some risk. In these guidelines, the factors are loosely
grouped into four categories, namely country factors, commodity factors, exposure
factors and risk reduction factors. Depending on the commodity and disease agent,
any number of these factors may be used to estimate the probability of an adverse
event for the importing country. Point estimates or probability distributions are

268 OIE Code, Section 1.1, Definitions, p.13.

employed to represent the values associated with each factor ...". 269 (underlining
added)
8.79 In this respect we also note the following opinions from experts advising the Panel:
Burmaster (Answer to Panel Question 1, Burmaster answers, page 1):
"With some exceptions in some situations (o f which this dispute is not one), I think
that a risk assessment must use quantitativ e methods to estimate the probability and
the magnitude of desired and adverse consequences".270 (underlining added)
Rodgers (Written version of Rodgers' statement at the meeting with experts, page 3):
"This concept [determination of probability based on the information available] is
though embodied in the OIE guidelines, which i ndicate that the risk factors should be
used to estimate the probability of an adve rse event occurring with point estimates or
probability distributions then employed to represent the values associated with each
factor. Effectively, risk assessment should estimate, either quantitatively or
qualitatively, the probability of an adverse effect occurring"271. (underlining added)
Winton (Transcript, para. 47):
"... the idea at least that you can begin to assess probability estimates, I think is
important and I think that all of us will be looking towards that approach in the
future". (underlining added)
Wooldridge (Answer to Panel Question 3, Wooldridge answers, page 8, emphasis in original):
"In my opinion, the requirement of a risk assessment is to evaluate the probability of
risk. This is one of my minimum requireme nts ... Given the existence of a particular
disease agent, one can always construct a possible infection transmission scenario,
however improbable, and therefore demonstration of the possibility of successful
transmission and disease is not adequate.
However, the probability does not have to be expressed quantitatively, and frequently
it cannot be. In qualitative assessment there is therefore the difficulty of what is
meant by the terms used, for example high, medium or low risk, and subjectivity is a
potential problem".
272
The experts advising the Panel thus agree that an evaluation and expression of probability or
likelihood, either quantitative or qualitative, is crucial to a risk assessment.
8.80 For the above reasons, we find that for the measu re at issue in this dispute, a risk assessment
- in accordance with Article 5.1 and paragraph 4 of Annex A and taking into account the risk
assessment techniques developed by the OIE - not only has to state that there is a possibility of the
diseases of concern being introduced into Austra lia when imports of the salmon products further
examined would be allowed, but also needs to provide some evaluation or estimation of the likelihood
or probability, expressed either qualitatively or quant itatively, of these diseases thus being introduced
and of the associated biological and economic cons equences then occurring. In our view, the SPS

269 OIE Code, Chapter 1.4.2, pp. 33-34
272 See also Wooldridge's answer to Panel Question 1, Wooldridge answers, p.3 and p.6 and Wooldridge,
Transcript, paras. 51, 52 and 55 and (with respect to associated consequences) paras. 127-128.

Agreement does not require that such evaluation ne eds to be done quantitatively. Moreover, we
consider that this requirement on how a risk assessment should evaluate risk does not at all imply that
a risk assessment in accordance with Article 5. 1 needs to demonstrate a certain magnitude or
threshold level or degree of risk (expressed either quantitatively or qualitatively).273
8.81 In this respect, we consider that a risk assessment, on which to base an import prohibition in
accordance with Article 5.1, cannot be premised on the concept of "zero risk". Otherwise, all import
prohibitions would be based on a risk assessment since there is a risk (i.e., a possibility of an adverse
event occurring), however remote, associated with most (if not all) imports. 274 In this respect, we refer
to the Appellate Body's Report on EC - Hormones:
"In one part of its Reports, the Panel opposes a requirement of an "identifiable risk"
to the uncertainty that theoretically alwa ys remains since science can never provide
absolute certainty that a given substance will not ever have adverse health effects. 275
We agree with the Panel that this theoretical uncertainty is not the kind of risk which,
under Article 5.1, is to be assessed".276
8.82 We next examine whether the requirement set out above is met in the 1996 Final Report. We
note that the 1996 Final Report uses the words probability, possibility and likelihood on different
occasions and evaluates elements of probability for some of the diseases of concern.
277 For example,
in the Executive Summary:
"Clearly there is a possibility that up to 20 disease agents exotic to Australia may be
present in Pacific salmon products. It is acknowledged that the probability of
establishment of disease would be low ...".278 (underlining added)
with respect to Aeromonas salmonicida:
"Infection with A. salmonicida may be unusual in adult, wild, marine Pacific salmon
and, if it exists, the concentration of bact eria present in fish may be low and the
likelihood of transmission of infection to Au stralian fish would be consequently low.

273 Appellate Body Report on EC - Hormones, op. cit., para. 186: "In another part of its Reports, however,
the Panel appeared to be using the term "scientifically identified risk" to prescribe implicitly that a certain magnitude
or threshold level of risk be demonstrated in a risk asse ssment if an SPS measure based thereon is to be regarded as
consistent with Article 5.1. To the extent that the Pane l purported to require a risk assessment to establish a minimum
magnitude of risk, we must note that imposition of such a quantitative requirement finds no basis in the
SPS Agreement" (footnote omitted).
274 Australia, First Submission, para. 19: "Australia does not have a no risk policy with respect to imports of
salmon products - imports of heat-treated salmon are permi tted. Stopping the import of a particular product does not
mean that there is a no risk policy, only that the risk is too high and that the product cannot be treated to reduce the
risk to an acceptable level". See also Australia, Rebuttals, para. 16; Australian Quarantine - Looking to the Future: a
Government policy statement, circulated by Senator the Hon. Peter Cook, Minister for Resources, December 1988,
p.12 ("The Government accepts the strongly expressed view of the Quarantine Review Committee that a policy of 'no
risk' would be impossible to implement. Such a policy would mean for example a ban on most products"); the 1995
Draft Report, p.217 and Nairn, M.E., et. al., Australian Quarantine: a shared responsibility, DPIE, 1996, pp.21-22 and
275 The Appellate Body refers to the Panel Reports, op. cit., paras. 8.152-8.153 (US complaint) and
paras. .155-8.156 (complaint by Canada).
276 Op. cit., para. 186, underlining in original.
277 At the meeting with experts advising the Panel Australia stated that "we contend we have conducted a
probability risk assessment" and implied that assessing risk as low or small is a statement of probability (Transcript,
para. 155).
278 1996 Final Report, p.XI.

The more significant scenario may be one in which untreated waste products are
continually discharged into water over time ...".279 (underlining added)
with respect to Parvicapsula sp.
"Since Parvicapsula is a myxosporean parasite, it need s an alternate host to complete
its life cycle. Parvicapsula disease has not spread from the Pacific rim of North
America, despite the substantial trade in uncooked salmon product from the region.
The possibility that the disease could beco me established in Australia cannot be
completely discounted; however, the likeli hood is considered to be very low". 280
(underlining added)
disease agent conclusions:
"Some general observations can be made about the likelihood of the disease agents
under consideration being present in produc t imported into Australia. The risk
reduction procedures raised for each disease agent would be expected to have an
impact on the risk - both by removing tissu es that potentially could contain the agent
and by removing tissues that would have a hi gher propensity for being disposed of in
Australia.
However, the critical gaps in the inform ation base for each of the disease agents
makes it difficult to estimate with any conf idence the likelihood that product entering
Australia would be infected. There will be an unknown chance - with some degree of
uncertainty about the confidence that can be had in any estimation - that imported
product will be infected. Limitations on the source of product and its preparation will
reduce that chance to low, but uncertain, levels".281 (underlining added)
"It is clear that all the questions arising in relation to the likelihood that animal
products intended for human consumption may, in one form or another, ultimately be
consumed by, or come into direct contact with susceptible animals, cannot be
resolved. This risk factor is difficult to quantify; the chance, although present, is
likely to be small. However, because of the potential consequences this chance
cannot be ignored".282 (underlining added)
8.83 Considering the evidence before us, we note that the 1996 Final Report addresses some
elements of both probabilit y and possibility. We shall, therefore, assume - without making a finding
on this issue - that it meets the requirement set out above.283 We do note, however, that the 1996 Final
Report (as stated by several of the experts advising the Panel 284) lends more weight to the unknown
and uncertain elements of the assessment than th e 1995 Draft Report (on which the 1996 Final Report
is based). This, on occasions, results in general a nd vague statements of me re possibility of adverse

279 Ibid., p.39.
280 Ibid., p.48.
281 Ibid., p.50.
282 Ibid., p.56. See also on pp.66-68 (Conclusions), e.g., at p.66: "The potential for pathogenic exotic
organisms to enter Australia via imports of salmon from Canada and the United States is a risk and for some of the
disease agents under consideration it is probable that if commercial quantities of product were imported some of the
exotic agents would be introduced with the product" (emphasis added).
283 Para. 8.80.
284 Wooldridge answers, p.6, quoted in para. 8. and Rodgers answers, p.1 ("As such, the 1995 report is a
more useful document, in the sense of an internal risk assessment exercise, since it 'evaluates' the data to conclude that
a negligible risk exists, while at the same time recognising that the overall risk of disease introduction cannot be
quantified. The final report seems to lend more weight to the unknown elements of the assessment and as such is
more cautious, which results in an outcome closer to the 'unacceptable' rather than the 'negligible but acceptable' end
of the scale").

effects occurring; statements which constitute neither a quantitative nor a qualitative assessment of
probability.285 We consider that this methodology is surprising in this case where Australia has
already carried out a risk assessment which (according to two of the three scientists advising the Panel
on this issue286 fully examined probability (i.e., the 1995 Draft Report).287
An evaluation of the likelihood of the entry, es tablishment or spread of the diseases of concern
"according to the sanitary ... measures which might be applied"
8.84 In this respect, Canada submits the require ment - allegedly contained in Article 5.1 - to
evaluate risks for each of the SPS measures or options which might be applied.
8.85 We recall, first, the definition of risk assessment applicable in this case, namely the
"evaluation of the likelihood of entry, establishment or spread of a pest or disease ... according to the
sanitary or phytosanitary measures which might be applied" (emphasis added). We also note that
according to Article 5.2, "[i]n the assessment of ri sks, Members shall take into account ... relevant
processes and production methods; relevant insp ection, sampling and testing methods ... and
quarantine or other treatment".
8.86 We further refer to the OIE "Gui delines on Risk Assessment", quoted above 288, which list a
series of factors to be considered in a risk assessment. One important category of factors to be
assessed covers the so-called risk reduction factors:
"Risk reduction factors
For many aquatic organisms there is a dearth of information relating to the prevalence
of disease in the source population and availa ble diagnostic tests may be of limited
use. In such cases, the analysis must pay particular attention to factors that reduce
risks. Risk reduction factors are parameters specific to measures that are applied to
reduce the probability that a disease agen t will be introduced into the importing
country, exposed to and/or transmitted to an aquatic or human population.
Options that exist to reduce risk associated with a particular importation include:
- choice of the origin of the commodity
- restricting the destination
- pre- and post-shipment quarantine

285 This led the experts advising the Panel on this issue to the conclusion that the 1996 Final Report does not
appropriately assess probability as is re quired in their view. See Burmaster's answer to Panel Question 1, Burmaster
answers, p.1; Rodgers, Transcript, para. 26 ("[The 1996 Final Report] assesses risks on a di sease-by-disease basis but
in a textural form and does not assign any probabilities that would be needed to reach a conclusion. In this respect,
therefore, I think, it possibly does fall short of determining any probability based on the information available") and
Wooldridge, Transcript, para. 55 ("... since [the 1996 Final Report] looks only at the possibility of the unwanted
outcomes of infection and disease importation, rather than the probability, in my opinion, it does not in any event
fulfil the essential requirements of a risk assessment").
286 Rodgers answers, pp.2-3 and Transcript, para. 24; W ooldridge answers, p.6 and Transcript, para. 54.
Contra: Burmaster answers, p.1, who goes further and considers that a risk assessment needs to be quantitative.
287 In this respect, see Wooldridge, Transcript, para. 57, addressing a risk assessment carried out by New
Zealand ("Anyway, where it is not the case that everybody has actually agreed on a decision that there are negligible
risks, or where further demonstration of a low level of probabi lity is required, as I say, a quantitative assessment is in
my opinion the next obvious process to attempt. This is what New Zealand has done, and I cannot actually see any
reason Australia did not attempt to undertake the same kind of assessment - selecting the disease which, qualitatively
they assessed as the most risky in their Draft Report. In my opinion, as I have stated in my written evidence, the basic
New Zealand method and much of the data is equally applicable"). The New Zealand risk assessments (one dates
from 1994, another from 1997) seem to imply that an assessment with more quantitative elements than the 1996 Final
Report may be technically and scientifically feasible.
288 Para. 8.78.

- diagnostic testing
- vaccination
- processing, maturation and storage for a specified time and temperature
- treatments, e.g., heat treatment for a specified time and temperature, use of
antibiotics and chemotherapeutics, disinfection procedures, manipulation of
salinity or pH, etc.
- limiting the size and the frequency of importation.
When a series of risk-reducing measures is applied to an importation, it may be
possible to demonstrate that the extent to which risk is reduced is sufficiently great
that an accurate estimate of the initial unrestricted risk is unnecessary.
Specific risk reduction methods for particul ar diseases are described in each chapter
of the Code. If information on the proba bility of the presence or survival of a
particular disease agent following applica tion of a risk reduction option is not
available, documented experience is an acceptable source of information".
289
(underlining added)
8.87 In this respect we further note the following opinions from experts advising the Panel: 290
Burmaster (Answer to Panel Question 24, Burmaster answers, page 9):
"In some situations, there are only two po ssible plans or proposals, perhaps called
Plan Yes and Plan No. Each of these choices has risks and benefits. In other
situations, there may be more than two co mpeting plans or proposals, perhaps called
Plan A, Plan B, .. and the 'Do Nothing' plan. Each of these choices has risks and
benefits. The risks and benefits of the co mpeting, alternative plans or proposals may
be measured in a variety of units, including economic or monetary units.
In a first step sometimes called 'risk assessmen t', scientists, engineers, statisticians,
and other professionals estimate the risks and benefits associated with each of the
competing, alternative plans or proposals". (underlining added)
Rodgers (Answer to Panel Ques tion 1, Rodgers answers, page 4), when dealing with
the "risk factors" involved in a risk assessment:
"Risk reduction factors can be considered to include options available to reduce the
probability of introducing a disease agent. These may include factors such as the
origin of the product, selective destina tion establishments and specified product
processing or treatments".
Rodgers (Transcript, para. 36291):
"What I would say though is that additional fears about the acceptability of such a
low level of risk should be allayed by cons idering a series of risk reduction factors,
that is quite acceptable. But those risk reduction factors should be accepted by both
parties. In this way, the application of such a series of measures may demonstrate
that the extent to which risk is reduced is sufficiently great that an accurate
assessment of the initial unrestricted risk is unnecessary".

289 OIE Code, Chapter 1.4.2, Article 1.4.2.2, pp. 36-37.
290 We only refer to three of the four experts advising the Panel since only three of them have expressed an
opinion on this issue.

Wooldridge (Transcript, para. 64):
"Risk management options generally involve the putting in place of risk reduction
measures, otherwise called safeguards. ... In an import risk analysis, if the assessed
baseline risk, or the risk with current re gulatory or 'usual' safeguards in place was
considered acceptable to the importing country, there would be no requirement or
need to assess any further scenario. Only if this baseline or initial risk is
unacceptable would one need to go further. If, in such a case, there are additional
safeguards identified which are considered practicable to employ, then in my opinion,
it would be necessary for the importing count ry to assess the risks with the most
stringent practicable combination of these in place, and demonstrate that the risks
were still unacceptable, in order to refuse imports. Whether it is necessary to assess
intermediate combinations of safeguards separately depends on the precise problem
being addressed".
8.88 For the above reasons, we find that for the measu re at issue in this dispute a risk assessment in
accordance with Articles 5.1 and 5.2 and paragraph 4 of Annex A and taking into account the risk
assessment techniques developed by the OIE - has to evaluate the likelihood of entry, establishment or
spread of the diseases of concern according to and taking into account the sanitary measures or
options - considered to reduce the alleged risk - which might be applied.
8.89 We next examine whether the 1996 Final Repor t meets this requirement. We note that the
1996 Final Report examines risk reduction factors on a disease-by-disease basis. It does so under
heading seven ("Risk Reduction Factors") for each of the 24 diseases examined in Section 2. For
Aeromonas salmonicida , for example, under the heading "Risk Reduction Factors" the following
elements are addressed: restricting zone of origin , species of origin, life cycle stage; pre and post
shipping quarantine; product testing with tests having high sensitivity; processing, maturation and
storage for specified time and temperature; treatments, (e.g., heating, disinfection); restricting the
destination; vaccination; and certification.
292 A similar examination is undertaken for all other
23 diseases of concern. For most of these risk reduc tion factors, the 1996 Final Report provides some
evaluation of the extent to which these factors c ould reduce risk. A summarized version of this
disease-by-disease examination, repeating some of the risk reduction factors addressed in Section 2, is
outlined in Section 1 under the heading "Risk Analysis Factors".293
8.90 With respect to the quarantin e options considered to reduce the total risk associated to all
diseases of concern, the 1996 Final Report is less exp licit. In Section 1, the 1996 Final Report sums
up a series of "Risk Management Measures" which would "contribute to a lessening of likelihood that
imported product would contain pathogen ic organisms" as well as "reduce the likelihood that this
product would cause disease if accidentally or delib erately fed to Australian fish" (emphasis added)
and provides definitions for most of these measures. 294 In Section 1.5.4, the 1996 Final Report
identifies five potential quarantine policy options - put fo rward to reduce the total disease risk related
to the imports it examined - which incorporate and develop some of the risk reduction factors
addressed earlier.295 However, we note that the 1996 Final Report does not substantively evaluate the
relative risks associated wi th these different options. 296 Even though the definition of risk assessment
requires an "evaluation ... according to the sanita ry ... measures which might be applied", the 1996
Final Report identifies such measures but does not, in any substantial way, evaluate or assess their
relative effectiveness in reducing the overall disease risk.

292 1996 Final Report, pp.139-140.
293 Ibid., pp.37-49.
294 Ibid., pp.56-58.
295 Quoted in para. 8.97.
296 Paras. 8.174 ff.

8.91 Considering the evidence before us, we recall that the 1996 Final Report addresses and to
some extent evaluates a series of risk reduction fact ors, in particular, on a disease-by-disease basis.
We shall, therefore, assume - without making a finding on this issue - that the 1996 Final Report - to
the extent that we earlier assumed that it "evalu ates the likelihood of the entry, establishment or
spread" of the diseases of concern297 - does make such evaluation according to and taking into account
the sanitary measures or options - considered to reduce the alleged risk - which might be applied.
Summary
8.92 Referring to our findings in paragraphs 8.73, 8.75, 8.80 and 8.88 and to our assumptions in
paragraphs 8.83 and 8.91, we recall that the 1996 Final Report identifies the diseases of concern as
well as the associated biological and economic co nsequences. It does so on a disease-by-disease
basis. To some extent it also addresses elements of probability of occurrence of the identified risk. It
analyzes risk reduction factors on a disease-by-disease basis and identifies five quarantine options to
reduce the total disease risk. For the purpose of our further examination we shall, therefore, assume -
without making a finding on this issue - that the 1996 Final Report meets the requirements of a risk
assessment set out in Articles 5.1 and 5.2.
 (iv) Is the sanitary measure at issue "based on" a risk assessment as
required in Article 5.1 ?
8.93 We assume that the 1996 Final Report meets the requirements of a risk assessment. However,
Article 5.1 prescribes that "Members shall ensure that their sanitary ... measures are based on an
assessment ... of the risks" (emphasis added). The next question arising under Article 5.1 is,
therefore, whether the measure at issue, in so far as it applies to the salmon products further
examined, is "based on" a risk assessment.
8.94 We note that the Appellate Body in EC - Hormones stated the following regarding the
requirement in Article 5.1 that sanitary measures are to be "based on" a risk assessment:
"We believe that Article 5.1, when contex tually read as it should be, in conjunction
with and as informed by Article 2.2 of the SPS Agreement, requires that the results of
the risk assessment must sufficiently warrant - that is to say, reasonably support -- the
SPS measure at stake. The requirement that an SPS measure be "based on" a risk
assessment is a substantive requirement that there be a rational relationship between
the measure and the risk assessment".298 (underlining added)
Applying this test to the measure at issue in EC - Hormones, the Appellate Body concluded:
"The absence of such a risk assessment, when considered in conjunction with the
conclusion actually reached by most, if not all, of the scientific studies relating to the
other aspects of risk noted earlier, leads us to the conclusion that no risk assessment
that reasonably supports or warrants th e import prohibition embodied in the EC
Directives was furnished to the Panel".299 (underlining added)
8.95 We recall that the measure at issue is Australia's QP86A as implemented or confirmed by the
1988 Conditions, the 1996 Requirements and the 1996 D ecision and this in so far as it prohibits the
importation of fresh, chilled or frozen salmon products (for present purposes we only address the
salmon products further examined).
300 The measure at issue, as it stands today, in effect prohibits the

297 Para. 8.83.
298 Op. cit., para. 193.
299 Ibid., para. 208.
300 Para. 8.21.

importation into Australia of fresh, chilled and frozen salmon. 301 Except for minuscule quantities of
frozen, uncooked salmon allowed for import for scien tific purposes, it only allows the importation of
salmon if it has been heat-treated as prescribed in the 1988 Conditions. It also allows imports of
canned salmon but such imports a fortiori meet the 1988 Conditions. From a trade perspective
(focusing on what product cannot enter the Austra lian market) the measure at issue in effect
constitutes an import prohibition on, inter alia , fresh, chilled and frozen salmon. However, if we
approach the measure at issue to determine its san itary aspects (focusing on what is required for the
product to be allowed for importation) - an approach we need to conduct in the context of the SPS
Agreement - we find that it, in effect, imposes heat treatment as a sanitary so lution to the risk posed
by the importation of salmon. These two perspectiv es are two sides of a single coin: a consequence
of Australia's sanitary requirement that salmon be heat-treated befo re it can be imported, is that
imports of fresh, chilled and frozen salmon are prohibited. 302 As Canada puts it, to contend that the
heat treatment requirements have nothing to do w ith importation of fresh, chilled or frozen salmon is
like saying that a "no smoking" regulation has nothing to do with smoking or that a requirement to
offer proof of legal drinking age when entering a bar has nothing to do with prohibiting consumption
of alcohol by minors. Australia's decision (the 19 96 Decision) to continue to prohibit fresh, chilled
and frozen salmon did not alter th e heat treatment requirements im posed in the 1988 Conditions nor
the fact that only heat-treated product can enter Au stralia. In that sense the 1996 Decision confirms
the 1988 Conditions.
8.96 Following this approach, we need to examine wh ether the measure at issue, to the extent it
prohibits the importation of commercial quantities of fresh, chilled and frozen salmon and - in effect
and from a sanitary perspective - imposes certain h eat treatment requirements, is "based on" a risk
assessment. The only risk assessment put forward by Australia in support of this measure is the 1996
Final Report. Australia argues that the heat treat ment requirements currently in place (which are,
according to Australia, in the interim, the 1988 Co nditions and this until further risk assessments are
carried out) are based on the scientific evidence which was available in the 1980s. However,
Australia never came forward with any such eviden ce. We thus need to address whether the measure
at issue is "based on" the 1996 Final Report.
8.97 We recall that the 1996 Final Report (Secti on 1.5.4) first identifies two quarantine options,
namely (1) the removal of all quarantine restric tions and (2) banning the importation of all salmon
products. However, it considered that "neither of these two options can reasonably be considered as
appropriate, having regard to associated quarantine risk". 303 On that ground, these two options were
not further discussed. The 1996 Final Report then id entifies five potential quarantine policy options
which it did further address:
"The quarantine policy options, in no particular order of merit, are as follows:

301 Para. 8.17.
302 To further illustrate the relationship between what is prohibited and what is permitted, it may help to
consider the original product and the various processes to which it may be submitted in order to allegedly ensure that
the product will not pose an unacceptable risk of entry, estab lishment or spread of certain diseases. In all cases, the
original product is, of course, the live salmon, but upon its captu re and death, the initial product is fresh salmon. This
fresh salmon may be "processed" by, for example, requiring it s evisceration or the removal of the head and gills, etc.
To facilitate its storage and transportation, the fish may be chilled or frozen. However, in Australia imports of salmon
in its fresh, chilled or frozen form are not permitted (except for minuscule quantities for scientific or taxidermy
purposes). This occurs on the grounds that the disease ri sks linked to such salmon are unacceptably high. To be
permitted, the same initial product, fresh salmon, must be subject to further processing, i.e., to heat treatment
according to the 1988 Conditions, or to commercial canning. Canada is not seeking access for heat-treated or canned
salmon. What Canada is challenging before this Panel is Australia's justification for the measures that prohibit access
for fresh, chilled or frozen salmon - or, in other words, whic h permit access for salmon only if it has been heat-treated
in accordance with the 1988 Conditions or commercially canned.
303 1996 Final Report, p.62.

1. Permit the importation of product effec tively heat treated for pathogens of
concern
 - product might be heat treated prior to export, or
 - heat treated on arrival prior to general distribution
2. Implement the recommendations of the BRS report “Aquatic Animal
Quarantine in Australia: Report of th e Scientific Working Party on Aquatic
Animal Quarantine” in part or in full.
3. Permit the importation of retail-ready fillets, for distribution in raw form
under specified conditions.
4. Implement the recommendations of AQIS’s draft IRA, that is, permit the
importation of headless, gilled, eviscerated product under specified
conditions.
5. Permit importation of product that complies with current international
standards for trade in salmon product for human consumption, that is, OIE
recommends that product be eviscerated and that no other risk reduction
measures need be taken".
304
We note that by doing so the 1996 Final Report itself - which only deals with fresh, chilled and frozen
product - regards heat treatment as one of the polic y options to be imposed on fresh, chilled or frozen
product and thereby confirms the link we discerned above 305 between the prohibition, in effect,
imposed by Australia on fresh, chilled and frozen pr oduct, on the one hand, and the heat treatment
requirements currently prescribed in Australia, on the other. We note, moreover, that at the interim
review meeting Australia stated that its quarantine measure currently in place is not the same as any of
the seven options identified in the 1996 Final Report. However, Australia c onfirmed that its current
measure most closely resembles the first of the five options further addressed in the 1996 Final Report
("[p]ermit the importation of product effectively heat treated for pathogens of concern").
8.98 We note, however, that the 1996 Final Report makes no substantive assessment of the risk or
the risk reduction related to the heat treatment requi rements in effect imposed by the measure at issue
(and more generally referred to in the first option outlined above 306). On the contrary, the 1996 Final
Report itself states that there is insufficient data on whether or not heat treatment inactivates the
disease agents in dispute:
"For many of the disease agents, data on thermal resistance are not available as the
necessary investigations have not been unde rtaken. Most fish pathogens would be
expected to be readily inactivated by heat , but there are notable exceptions such as
IPNV ... There are insufficient data to be conf ident that all of the agents that may be
present would be inactivated, but it could be expected there would be a significant
reduction in titre of the agents that may survive the heat treatment".307
In Section 1.4.2 of the 1996 Final Report, addressing "risk analysis factors" on a disease-by-disease
basis, heating as a risk reduction factor is not even addressed. 308 In Section 2, a technical review of

304 Ibid., p.62.
305 Para. 8.95.
306 At the interim review stage, Australia made clear that the first option set out in the 1996 Final Report
("[p]ermit the importation of product effectively heat treated for pathogens of concern") is not the same as the heat
treatment requirements Australia currently imposes (in the 1988 Conditions). See para. 8.175.
307 1996 Final Report, pp.57-58. In this respect, see also the answers by experts advising the Panel
(Burmaster and Rodgers) to Panel Ques tion 13, e.g., Rodgers stating : "... co mparative data for evisceration, heat
treatment and full cooking are scarce [he then refers to one 1994 study by Whipple and Rohovec and concludes]...
Most of the other studies related to inactivation by heat are largely concerned with incubation and cultivation
temperatures in artificial media, not to reduction of pathogen levels in tissue".
308 1996 Final Report, pp.37-49.

data for 24 salmonid diseases, the 1996 Final Report mentions heat treatment as a potential risk
reducing factor, but then makes the following statement for 13 out of the 24 diseases it examined:
"Treatments, (e.g., heating, disinfection)
We are unaware of any published information on such treatments which might reduce
the risk".309
In its submissions to this Panel, Australia reiterated this view as follows:
"The susceptibility of microorganisms to inactivation by heat treatment can be
characterised by particular parameters (D and Z values), which are specific for each
organism or strain of organisms. For mo st fish pathogens, these parameters have not
been determined".310 (underlining added)
With respect to the disease IPNV, the 1996 Final Repor t even concludes that it is resistant to heat
treatment.311 For other diseases the 1996 Final Report me ntions that both freezing and heating may
have risk reduction effects.312 This was addressed in more general terms by the 1995 BRS Report:
"Imported flesh heated to low temperatures [as allowed under the 1988 Conditions 313]
presents essentially the same risks as fresh or frozen flesh".314
Indeed, according to evidence referred to by Canada 315, some disease pathogens not only survive but
even grow when heat-treated at the lower temperature range allowed under the 1988 Conditions. 316 In
conclusion, the 1995 BRS Report explicitly questioned the rational basis of requiring heat treatment
before importation:
"The current process of heating salmonid finfish to inactivate potential exotic
pathogens does not have a rational basis in view of the thermal stability of a number

309 Ibid., p.148 (Edwardsiella tarda), p.167 (Vibrio anguillarum and V. ordalii), p.171 (Vibrio salmonicida),
p.178 ( Yersinia ruckeri ), p.207 (Pacific salmon anaemia virus), p.229 ( Enterocytozoon salmonis ), p.234 ( Loma
salmonae), p.239 (Ceratomyxa shasta), p.245 (Henneguya salminicola), p.249 (Kudoa thyrsites), p.258 (Parvicapsula
spp.), p.263 (PKX), p.268 (Rosette Agent). For other di seases, according to the 1996 Final Report, only some
evidence is available that heat treatment is "likely" to reduce risk, (e.g., p.152 for Piscirickettsia salmonis, p.160 for
Renibacterium salmoninarum, p.183 for ENV, p.187 for Herpesvirus salmonis Type 1, p.212 for salmon leukaemia
virus). The 1996 Final Report concludes for only 4 disease agents that heat treatment will have a significant effect on
or inactivate the disease agent (p.194 for IHNV, p.216-217 for salmon pancreas disease virus, p.223 for VHSV and
p.253 for Myxobolus cerebralis).
310 Australia's comment to Panel Question 13 to the experts, Australian comments, p.12.
311 1996 Final Report, p.53: "IPNV is a very stable virus. It can withstand heating and cooling and is
expected to persist in the environment for long periods".
312 For example, with respect to the disease agent Piscirickettsia salmonis: "Piscirickettsia salmonis does not
survive well in freshwater, but can survive for weeks in sea water. It is adversely affected by both high (>20°C) and
low temperatures (freezing)" (1996 Final Report, p.53); see al so, to a more limited extent, with respect to, e.g.,
Aeromonas salmonicida (at pp.140-141: "Freezing and thawing will significantly reduce levels of culturable
organisms. The effect of these factors on non-culturable forms of the pathogen in the product is not known") and
ENV (pp.182-183: "Little is known of the liability to freezing of ENV at -20 C, however MacMillan and Mulcahy
(1979) succeeded in inducing VEN with blood that had been frozen at -70 C").
313 Para. 8.11.
314 1995 BRS Report, p.37 (confirming the 1995 Humphrey Report, Section 9.5.5).
315 Evidence referred to by Canada in its oral statement at the second substantive meeting, not submitted to
the Panel, but not contested by Australia.
316 See also comment in the 1996 Final Report (at pp.343-344) on how protein can act as a protectant of
organisms during heat treatment and survival of spores.

of pathogens of high quarantine importance, especially at the lower temperature
ranges".317
8.99 We thus consider that Canada has raised a presumption (i.e., made a prima facie case) that
there is no "rational relationship between the measure and the risk assessment" 318 in that nowhere in
the 1996 Final Report - the only risk assessment fo rwarded by Australia - can a rational basis be
found to support the sanitary measure maintained by Australia, i.e., the heat treatment requirements in
effect imposed by the measure at issue. Canada h as, therefore, raised a presumption that there is no
risk assessment that "reasonably supports or warrants" 319 the measure at issue. We also consider that
Australia, in turn, has not provided evidence to rebut that presumption. We thus find that the measure
at issue - in so far as it applies to the salmon pr oducts further examined - is not "based on" a risk
assessment in accordance with Article 5.1. To that extent we find that Australia, by maintaining the
measure at issue, acts inconsistently with Article 5. 1. Given our earlier finding - that a violation of
the more specific Article 5.1 can be presumed to im ply a violation of the more general provisions of
Article 2.2320 - we find that Australia, to that extent, also acts inconsistently with Article 2.2.
8.100 We note Australia's statement that its po licy of allowing imports of salmon products heat-
treated in accordance with the 1988 Conditions will be reviewed and that for these purposes an import
risk analysis is scheduled. It is possible that this risk analysis provides a rational basis for the measure
at issue. However, as of today and on the basis of the risk assessment before us, we do not detect
such basis.
 (c) Summary
8.101 We have found above that the measure in dispute is not based on a risk assessment in
accordance with Article 5.1:
(1) in so far as the measure at issue a pplies to those salmon products in dispute
other than from adult, wild, ocean-caught Pacific salmon (i.e., other than
those covered by the 1996 Final Report) in that for these products no risk
assessment in accordance with Article 5.1 has been submitted
321; and
(2) in so far as the measure at issue a pplies to those salmon products in dispute
from adult, wild, ocean-caught Pacific salmon (which we have defined as "the
salmon products further examined"), to the extent it in effect and from a
sanitary perspective imposes certain heat treatment requirements, is not
reasonably supported or warranted by a risk assessment.
322
Because of these inconsistencies with Article 5.1, we also found that - to the same extent - Australia,
by maintaining the measure at issue, acts inconsistently with Article 2.2.
8.102 We note that if we were to have found that the measure in dispute is based on a risk
assessment in accordance with Artic le 5.1 and if, for that reason, Australia could have adopted a
measure to achieve its appropriate level of protec tion against these risks, we would then be called
upon to examine in this case whether the determinati on and application of this level of protection is
consistent with Articles 5.5 and 5.6. In the alte rnative, therefore, we shall next examine these
provisions.

317 1995 BRS Report, p.37 (confirming the 1995 Humphrey Report, Section 9.5.5).
318 Appellate Body Report on EC - Hormones, op. cit., para. 193, p.78.
319 Ibid., para. 208.
320 Para. 8.52.
321 Para. 8.56.
322 Para. 8.99.

 4. Canada's claims under Article 5.5
8.103 Article 5.5 provides:
"With the objective of achieving consistenc y in the application of the concept of
appropriate level of sanitary or phytosanitary protection against risks to human life or
health, or to animal and plant life or h ealth, each Member shall avoid arbitrary or
unjustifiable distinctions in the levels it considers to be appr opriate in different
situations, if such distinctions result in discrimination or a disguised restriction on
international trade. Members shall coopera te in the Committee, in accordance with
paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical
implementation of this provision. In developing the guidelines, the Committee shall
take into account all relevant factors, including the exceptional character of human
health risks to which people voluntarily expose themselves".
Article 5.5 must be read in context. An im portant part of that context is Article 2.3
323, which
provides as follows:
"Members shall ensure that their san itary and phytosanitary measures do not
arbitrarily or unjustifiably discriminate between Members where identical or similar
conditions prevail, including between their ow n territory and that of other Members.
Sanitary and phytosanitary measures shall not be applied in a manner which would
constitute a disguised restriction on international trade".
8.104 We recall that both Australia (especially in the 1996 Final Report and the drafts preceding
that report) and Canada (during our proceedings), focused on adult, wild, ocean-caught Pacific salmon
and that we, in turn, did the same. For these reas ons, the evidence and arguments before us which are
relevant to our examination under Articles 5.5 and 2.3 are centred on adult, wild, ocean-caught Pacific
salmon. On that basis we decided in paragraph 8. 60 to confine our examination of this dispute under
Articles 5.5 and 2.3 to those salmon products at issue from adult, wild, ocean-caught Pacific salmon,
which we have defined as "the salmon products further examined".
 (a) Determination of the appropriate level of sanitary protection
8.105 Canada claims that Australia has not de termined its "appropriate level of sanitary ...
protection" with respect to the importation of dead salmon and that this, as such, already violates
Article 5.5. According to Canada, Australia provi ded different and contradi ctory expressions of its
appropriate level of protecti on, defining this level, inter alia, as "no significant risk", "very low risk"
or "possibility of risk". According to Canada, "possi bility of risk" is equivalent to "zero-risk", a level
which is, as recognized by Australia itself, unattainable.
8.106 Australia submits that the SPS Agreemen t does not require Australia to quantify its
appropriate level of protection fo r salmonids. For Australia, the determination of the level of
protection deemed appropriate is a sovereign deci sion to which no minimum or maximum thresholds
are attached. According to Australia, the appropria te level of protection with respect to salmonids
was determined in regard to risks of both introduction of the diseases of concern and the
consequences associated with th ese diseases. Even though in this case the likelihood of occurrence
might be small, the consequences of introduction ar e, for Australia, of an unacceptable magnitude.
Australia further notes that the most descriptive expr ession of its appropriate level of protection in the
area of quarantine is contained implicitly in previo us quarantine decisions and the risk management
measures applied. In the light of Australia being an island state free of many pests and diseases,
Australia submits that it has consistently adopted a high, conservative approach with respect to the

323 Appellate Body Report on EC - Hormones, op. cit., para. 212.

appropriate level of protection. Australia adds that its economy is highly dependent on agricultural
production and exports (80 per cent of Australia's agri cultural production is exported) and that this, as
well as economic and non-economic factors in the domes tic context, is factored into its quarantine
decision-making.
8.107 We note that paragraph 5 of Anne x A provides the following definition:
"Appropriate level of sanitary or phytosanitary protection - The level of protection
deemed appropriate by the Member establishing a sanitary or phytosanitary measure
to protect human, animal or plant life or health within its territory.
 NOTE: Many Members otherwise refer to this concept as the 'acceptable level of risk' ".
We further note that several provisions of the SPS Agreement other than Article 5.5 mention the
concept of an "appropriate level of sanitary or phytosanitary protection".
324 However, nowhere does
the SPS Agreement explicitly impose an obligation on WTO Members to identify or quantify such
level. We consider, rather, that any sanitary measu re applied to a given situation inherently reflects
and achieves a certain level of protection with respect to that situation and that this level of protection
- implied in the sanitary measure selected by a Memb er - can be presumed to be at least as high as the
level of protection considered to be appropriate by that Member. 325 In this case, the measure at issue
implies and reflects a certain level of sanitary prot ection achieved by Australia with respect to the
salmon products at issue, including those further ex amined. Given that no evidence to the contrary
was provided by Australia, we assume that this level of protection is the level of protection considered
to be appropriate by Australia. In other words, we assume that this level is Australia's "appropriate
level of sanitary protection". We see no need to clearly define or quantify that level for present
purposes. We only note that Australia, inter alia, submitted that it is a high or "very conservative" 326
level of sanitary protection aimed at reducing risk to "very low levels" 327, "while not based on a zero
risk approach".328 We also note that Australia's primary reason to impose such conservative level of
protection is the magnitude of the biological, environmental and economic consequences of the
introduction of the diseases at issue, while it acknow ledges, on the other hand, the "small" likelihood
of such introduction.329
(b) Arbitrary or unjustifiable distinctions in levels of sanitary
protection which result in discrimination or a disguised
restriction on trade
8.108 The relevant part of Article 5.5 im posing an obligation on WTO Members reads:
"... each Member shall avoid arbitrary or unju stifiable distinctions in the levels it
considers to be appropriate in different s ituations, if such distinctions result in
discrimination or a disguised restriction on international trade".

324 Sixth preamble to the SPS Agreement, Articles 3.3, 4.1, 5.3, 5.4, 5.6, 9.1, 10.2, 12.4 and paragraph 3(c) of
Annex B.
325 In this respect, see the Panel Reports on EC - Hormones , op. cit., respectively at para. 8.74, and para.
8.77: "However, the fact that an ADI [i.e., a quantified 'Acceptable Daily Intake' of a substance] or MRL [i.e., a
quantified 'Maximum Residue Level' of a substance] can reflect a level of protection (without stricto sensu itself being
a level of protection), does not exclude, as the European Co mmunities has argued, that an ADI or MRL can also be a
sanitary measure in the sense of the SPS Agreement" (emphasis in original).
326 Australia, First Submission, para. 351.
327 Ibid.
328 Australia, Rebuttals, para. 16.
329 Australia, Rebuttals, para. 216. See also Australia's statement at the experts meeting: "Australia is willing
to accept only a low likelihood of the entry, establishmen t or spread of diseases of quarantine concern, if the
consequences from the entry of a pest or disease are expected to be significant" (Transcript, para. 81).

In this respect, the Appellate Body in EC - Hormones stated the following:
"Close inspection of Article 5.5 indicates that a complaint of violation of this Article
must show the presence of three distinct el ements. The first element is that the
Member imposing the measure complained of has adopted its own appropriate levels
of sanitary protection against risks to human life or health in several different
situations. The second element to be shown is that those levels of protection exhibit
arbitrary or unjustifiable differences ("distin ctions" in the language of Article 5.5) in
their treatment of different situations. The last element requires that the arbitrary or
unjustifiable differences result in discrimination or a disguised restriction of
international trade. We understand the l ast element to be referring to the measure
embodying or implementing a particular le vel of protection as resulting, in its
application, in discrimination or a disguised restriction on international trade".
330
The Appellate Body then added:
"We consider the above three elements of Ar ticle 5.5 to be cumulative in nature; all
of them must be demonstrated to be presen t if violation of Article 5.5 is to be
found".331
We thus consider that three elements are required in order for a Member to act inconsistently with
Article 5.5:
- the Member concerned adopts different appr opriate levels of sanitary protection in
several "different situations";
- those levels of protection exhibit differen ces which are "arbitrary or unjustifiable";
and
- the measure embodying those differences resu lts in "discrimination or a disguised
restriction on international trade".
8.109 We recall that Article 5.5 needs to be read in the light of Article 2.3. 332 A s n o t e d b y t h e
Appellate Body in EC - Hormones:
"When read together with Article 2.3, Artic le 5.5 may be seen to be marking out and
elaborating a particular route leading to the same destination set out in Article 2.3".333
Indeed, even though Article 5.5 deals with arbitrary or unjustifiable distinctions in levels of protection
imposed by one WTO Member for different situa tions and Article 2.3 addresses, rather, sanitary
measures which (1) arbitrary or unjustifiably discriminate between WTO Members or (2) are applied
in a manner which would constitute a disguised restriction on trade; the third element under
Article 5.5 also requires that the measure in dispute results in discrimination or a disguised restriction
on trade. We conclude, therefore, that if we were to find that all three elements under Article 5.5 -
including, in particular, the third element - are fulfilled and that, therefore, the more specific
Article 5.5 is violated, such finding can be presumed to imply a violation of the more general Article
2.3. We do recognize, at the same time, that, given the more general character of Article 2.3, not all
violations of Article 2.3 are covered by Article 5.5.
8.110 We recall, moreover, that the Committee on Sanitary and Phytosanitary Measures has been
given a mandate by Article 5.5, second sentence, to "develop guidelines to further the practical
implementation of this provision", but that no such guidelines have to date been developed.

330 Op. cit., para. 214, emphasis in original.
331 Ibid., para. 215.
332 Para. 8.103.
333 Op. cit., para. 212.

8.111 Canada claims that the measure in disput e meets each of the three elements contained in
Article 5.5 and therefore violates Article 5.5. Australia disagrees and submits that its measure is fully
consistent with Article 5.5. We next examine each of the three elements under Article 5.5.
 (i) Distinctions in levels of protection for "different situations"
Arguments of the parties
8.112 For Canada the "different situations" to be compared under Article 5.5 are, at a minimum,
those that involve at least some of the same 24 disease agents at issue. Canada submits that many of
these disease agents also occu r in non-salmonids whose entry into Australia is not prohibited. To
avoid a distinction in levels of protection in these different situations, Canada argues, Australia would
have to impose similar sanitary measures for the im portation of all products k nown to be capable of
hosting any of the 24 diseases of concern.
8.113 Canada argues, for example
334, that Australia makes the following distinctions in levels of
sanitary protection (also outlined in Annex 1 of our report):335
(1) an import ban on uncooked salmon for human consumption to protect against
risk of introduction of, inter alia, the disease agent Aeromonas salmonicida (atypical
strain), according to the 1996 Final Report "one of the most serious threats to
Australian fish" 336, as opposed to allowing imports of, inter alia, uncooked Pacific
herring, cod, haddock, Japanese eel and plai ce for human consumption, all of which
are known to host the same disease (as well as other diseases of concern to Australia);
(2) an import ban on uncooked salmon for human consumption to protect against
risk of introduction of, inter alia, the disease agents VHSV and IPNV 337 which
according to the 1996 Final Report itself have not even been detected in the salmon
products further examined
338, as opposed to allowing imports of, inter alia, uncooked
Pacific herring, Atlantic and Pacific c od, haddock and European eel for human
consumption, all of which are known to host VHSV (as well as other disease agents
of concern to Australia), and uncooked cod, European and Japanese eel and Dover
sole for human consumption, all of which are known to host IPNV (as well as other
disease agents of concern to Australia);
(3) an import ban on uncooked salmon for human consumption to protect against
risk of introduction of, inter alia , four specific disease agents ( Aeromonas
salmonicida (atypical strain), Erythrocytic necr osis virus, Infectious haematopoietic
necrosis virus and VHSV), as opposed to a llowing imports of herring in whole,
frozen form for use as bait which are known to host the same diseases
339;

334 In its submissions, Canada also referred to other ex amples but particularly addressed four comparisons.
We shall therefore, in turn, concentrate on these four comparisons.
335 The descriptive part of our report (at para. 4.201) al so sets out four comparisons put forward by Canada
under Article 5.5. However, in the findings section we only address the first three of these comparisons. The first two
comparisons set out in our findings are brought together in the descriptive part - on request by Canada - as one
comparison. However, for purposes of our findings we cons ider it more appropriate to set out these two comparisons
separately since they deal with different fish products, different diseases and different arguments as to disease
occurrence.
336 1996 Final Report, p.38.
337 Respectively "Viral Haemorrhagic Septicaemia Virus" and "Infectious Pancreatic Necrosis Virus".
338 1996 Final Report, respectively at p.45 and p.44.
339 According to Canada, Pacific herring is host to all four disease agents, whereas Atlantic herring only to
one of them (Erythrocytic necrosis virus).

(4) an import ban on uncooked salmon for human consumption to protect against
risk of introduction of, inter alia , five specific disease agents ( Aeromonas
salmonicida (atypical strain), Yersinia ruckeri, Edwardsiella tarda, IPNV and Vibrio
anguillarum), as opposed to allowing imports of live ornamental finfish which are
known to host the same diseases.340
Canada argues that it does not matter that no risk assessment has so far been made by Australia for the
other products compared under Article 5.5. Fo r Canada, the point is that for uncooked salmon
Australia takes an extremely cautious approach wh ereas for non-salmonids Australia is, in Canada's
words, "gambling".
8.114 Australia argues that the "different situations " envisaged in Article 5.5 may occur in regard to
(1) the same product and the same diseases where there might be iden tical or similar adverse health
effects and consequences or (2) different produc ts with the same adve rse health effects and
consequences. With respect to the distinction made between importation of salmonids and non-
salmonids, Australia acknowledges that non-salmonid product or live fish imported into Australia
could represent a risk of entry of diseases of concern. It argues, however, that it is currently
undertaking import risk analyses and reviewing its measures related to non-salmonids. An import risk
analysis on the importation of bait and feed fish is scheduled to commence in April 1998. The import
risk analysis for ornamental fish was started in 1997. Australia also argues that to restrict the
importation of non-salmonids before having completed these risk analyses would run counter to other
provisions of the SPS Agreement, in particular the obligation to base sanitary measures on a risk
assessment. Australia submits that the imposition of similar measures to different products may in
fact result in different levels of protection in r espect of the same disease ag ent since the likelihood of
disease entry is likely to be different for various co mmodities. Australia also argues that it imposes
the measure in dispute because of the range of di sease agents that potentially could be present in the
salmon products further examined, not because of any one particular disease agent.
"Different situations"
8.115 In defining the scope of "different situ ations" under Article 5.5, we note the following
statement in the Panel Reports on EC - Hormones:
"We note that both parties in dispute agree that the scope of "different situations"
contained in Article 5.5 includes situations which deal with the same substance as
well as situations which involve the same adverse health effect . For this reason,
considering the lack of guidelines by th e Committee on Sanitary and Phytosanitary
Measures and without further defining or limiting the scope of "different situations",
we find that, for the purposes of this disput e, we can compare situations where the
same substance or the same adverse health e ffect is involved as "different situations"
in the sense of Article 5.5".
341
The EC - Hormones panels then found that they could compare natural hormones with synthetic
hormones under Article 5.5 as "different situations ", even though these are different substances,
because "the situations thus co mpared involve at least the same adverse health effect , namely
carcinogenicity".342 The same conclusion was reached with respect to a comparison between five of

340 According to Canada, freshwater ornamental finfish host Aeromonas salmonicida (atypical strain),
Yersinia ruckeri, Edwardsiella tarda and IPNV, whereas marine ornamental finfish host Vibrio anguillarum.
341 Panel Reports, op. cit., para. 8.176 (US complaint) and para. 8.179 (complaint by Canada), emphasis in
original.
342 Ibid., paras. 8.208-9 at para. 8.208 (US complaint) and paras. 8.211-2 at para. 8.211 (complaint by
Canada), emphasis in original.

the six hormones at issue and the antimicrobial growth promoters carbadox and olaquindox. 343
Dealing with this very issue on appeal, the Appellate Body stated the following:
"Clearly, comparison of several levels of sanitary protecti on deemed appropriate by a
Member is necessary if a panel's inquiry under Article 5.5 is to proceed at all. The
situations exhibiting differing levels of protection cannot, of course, be compared unless
they are comparable, that is, unless they present some common element or elements
sufficient to render them comparable. If the situations proposed to be examined are
totally different from one another, they woul d not be rationally comparable and the
differences in levels of protection cannot be examined for arbitrariness".344
8.116 In the EC - Hormones cases the measure at issue intended to protect human health against
risks arising from contaminants in foods. It thus fell under the definition of a sanitary measure in
paragraph 1(b) of Annex A and had to be based on a risk assessment in the sense of the second
definition of paragraph 4 of Annex A. Such san itary measure and risk assessment should, according
to paragraph 4, address "the potential for adver se effects" on health; not the non-health related
consequences. Other situations with "the same a dverse health effect" were, therefore, found to be
comparable under Article 5.5. In this dispute, the measure at issue is intended to protect animal health
as a sanitary measure defined in para graph 1(a) of Annex A and is to be based on a risk assessment in
the sense of the first definition in paragraph 4 of Annex A. According to this first definition in
paragraph 4, such risk assessment has to take in to account risks arising not only from the "entry,
establishment or spread of a pest or disease", but also from the "associated biological and economic
consequences".
8.117 On these grounds - and in particular referri ng to the interpretation given by the Appellate
Body to the concept of "different situations" in Article 5.5, requiring that such situations should
"present some common element or elements sufficient to render them comparable"345 - we find that in
the circumstances of this dispute, we can compare situations under Article 5.5 if these situations
involve either a risk of "entry, establishment or spread" of the same or a similar disease or of the same
or similar "associated biological and economic con sequences" and this irrespective of whether they
arise from the same product or other products. In othe r words, we are of the view that the treatment
provided by Australia to the salmon products furt her examined can be compared under Article 5.5
with the treatment it provides to other salmon pr oducts or non-salmonids which represent a risk of
entry, establishment or spread of the same or a si milar disease or a risk of the same or similar
associated biological and economic consequences.
8.118 At the interim review stage, Australia argued that for "different situations" to be comparable
under Article 5.5 both the disease and the consequences need to be the same. Australia thereby
referred to the definition of risk assessment where these two factors are linked by the word "and", not
"or". We note, however, that at this stage of our examination we only address the question whether
two situations can be compared under Article 5.5. We do not examine nor decide at this point
whether the risk (both in the sense of risk of en try, establishment or spread of the disease and the
associated consequences) linked to these two situ ations is the same or has been addressed
inconsistently. This issue needs to be examined under the second element of Article 5.5.
8.119 To have "different situa tions" under Article 5.5, we do not consider that the other products
compared to the salmon products further ex amined need to be potential hosts to all disease agents of
concern for these salmon products. To the extent that both the other products and the salmon products
further examined are known to be hosts to one of these disease agents or - for the salmon products -
give rise to an alleged concern for that disease agen t, they can be associated with the same kind of

343 Ibid., paras. 8.220-1 (US complaint, where only carba dox was at issue) and paras. 8.223-4 (complaint by
Canada, where both carbadox and olaquindox were discussed).
344 Op. cit., para. 217, emphasis in original.
345 Op. cit., para. 217.

risk, namely a risk of entry, establishment or spread of that disease. Indeed, if we were to find that
only products which are known to be host to all 24 disease agents of concern to Australia can be
compared to the salmon products further examined, it would then be sufficient for a WTO Member
imposing a sanitary measure - in order to avoid the application of Article 5.5 - to list a series of
disease agents allegedly of concern to it, the tota lity of which is not known to occur in any other
product.346 In our view, even if the salmon products furt her examined were to be host to more disease
agents than the other products they are compared to, does not affect the comparability of these
products as "different situations" under Article 5.5. This factor may, however, be a reason to justify a
distinction in levels of protection imposed for these different situations under the second element of
Article 5.5 (i.e., arguments that such distinction is not "arbitrary or unjustifiable").
8.120 We next have to determine whether the f our comparisons we outlin ed in paragraph 8.113
compare situations for which a risk arises of entry, establishment or spread of the same or a similar
disease or of the same or similar associated biological and economic consequences. We recall that
our examination of this dispute under Article 5.5 is limited in scope to those salmon products at issue
from adult, wild, ocean-caught Pacific salmon, which we defined as the salmon products further
examined. We shall, therefore, only compare thos e salmon products to the other products set out in
the four comparisons.
8.121 We note, first, that Australia expressed a concern for each of the specific disease agents, put
forward under each of the four comparisons, with respect to the salmon products further examined.
347
We recall, second, that neither the parties to the dispute nor the experts advising the Panel 348 contest
the fact that with respect to all four comparis ons these specific disease agents have actually been
detected (i.e., are known to occur) in the products compared to the salmon products further examined.
Third, according to the experts advising the Panel, the biological and economic consequences of a
disease introduction (i.e., the consequences of a di sease once established in a country) will generally
be the same or similar in a given country, irrespective of the product introducing the disease.
Therefore, as soon as two situations have a diseas e agent or a concern for a disease agent in common,
also the associated potential biological and econom ic consequences can be presumed to be the same
or at least to be similar. 349 Nothing in the 1996 Final Report (in particular its Section 3 which
addresses the economic and other impacts of salm onid disease introduction into Australia) indicates
differently. Since (1) the two situa tions in each of the four comparisons have, therefore, at least one
disease agent in common - or, as far as the salmon products are concerned, represent at least an
alleged concern for that disease agent - and (2) also the consequences associated with these diseases
can, according to the experts advising the Panel, be pr esumed to be at least similar, we consider that

346 In response to an Australian comment at the interim review stage, this does not, of course, exclude that a
Member may, in some cases, have good reasons to be concerned about a series of disease agents which may occur in a
given product but which do not occur in any other product.
347 All the diseases put forward by Canada under Article 5.5 figure in the list of 24 diseases of concern to
Australia with respect to salmon products. This list was provided in Australia's answer to Panel Question 2 and is
reproduced in Table 3 in the descriptive part.
348 Answers by the experts advising the Panel to Panel Question 8.
349 Answers by the experts advising the Panel to Panel Question 6 ("Canada contends that for any given
disease agent, the consequences of the disease becoming established in an importing country would be the same
regardless of the original imported source. In your view , is this statement technically/scientifically correct?"):
Burmaster answers, p.4 ("Yes; I cannot think of a counter-e xample to this principle", expanded in Transcript, para.
259); Rodgers answers, p.7 ("This statement is probably gene rally correct ..."; Rodgers then goes on to say that the
nature of the original import may have a bearing on the possible consequences. However, the consequences he
addresses do not relate to those arising after the introduction of the disease but rather to the risk of such introduction
occurring, the consequences of allowing imports of these different products irrespective of whether they introduce
diseases or regional differences in the importing country); Wooldridge answers, pp. 10-11. ("Once a given disease is
established country-wide in an importing country, then in my opinion the consequences from that point on will be the
same whatever the original imported source or manner of establishment"; Wooldridge notes, however, that a
difference in import distribution may lead to a difference in short term consequences of disease establishment due to
regional differences in susceptibility to the disease in the importing country); Winton did not answer Question 6.

for each of these comparisons the two situations can be compared under Article 5.5 as "different
situations".
8.122 The four comparisons examined under Artic le 5.5 and the respec tive diseases under each of
these comparisons, with a reference to where the occurrence of these diseases in the other products
has been confirmed350, are outlined in Annex 1 to our report.
Difference in levels of protection
8.123 We next examine whether there is, for each of these "different situations" 351, a distinction in
levels of sanitary protection. As noted earlier 352, the appropriate level of sanitary protection will
normally be reflected in the sanitary measures im posed for a specific situation. We consider,
moreover, that the level of protection achieved by a specific sanitary measure will also depend on the
degree of risk against which that measure is inte nded to protect. In that sense, we agree with
Australia that imposing the same sanitary measure for different situations does not necessarily result
in the same level of protection. Indeed, in many situations (e.g., situatio ns representing different
risks) the same sanitary measure might result in di fferent levels of protection. On the other hand,
different sanitary measures for different situations mi ght ensure the same level of protection. Indeed,
one given situation might only represent a small risk for which a lenient sanitary measure will achieve
a high level of protection, whereas another situation might pose very high risks requiring a very strict
and different sanitary measure in order to meet that same high level of protection.
8.124 To determine whether Australia makes a distin ction in the levels of protection it considers to
be appropriate for the situations compared, we thus need to examine the sanitary measures Australia
currently imposes for these different situations. Since we have found that these situations are
comparable as "different situations" under Article 5.5 (because they have at least one disease agent in
common and, presumably, also represent the same or similar biological and economic
consequences
353) and since we will consider the potential di fference in the degree of risk posed by
these different situations under the second element of Article 5.5, we will for present purposes assume
that if there is a difference in the sanitary measures imposed for the different situations we compare
under Article 5.5, this differenc e does reflect a distinction in levels of protection achieved in - and
considered to be appropriate by - Australia.
8.125 For the above reasons 354, we consider that even though Australia has not yet conducted import
risk analyses for the other products compared under Ar ticle 5.5, Australia does, nevertheless, have a
level of protection it considers to be appropriate for these other products. Australia currently has a
sanitary regime, imposing specific sanitary measur es or refraining from such regulation, for these
other products. This sanitary regime (whether or not specific measures are enacted) reflects a level of
protection. To have a specific level of protection, there is no need to first complete a risk assessment.
8.126 The arguments submitted by Australia - th at imposing similar measures for both the salmon
products and the other products compared, without first completing a risk analysis for these other
products, would run counter to the obligation to b ase sanitary measures on a risk assessment; and that
situations can only be compared under Article 5. 5 if for both an appropriate risk assessment is

350 When addressing "disease occurrence" in Annex 1, we focus on whether or not the specific disease agent
has been detected in the product concerned. We realize th at doing so we simplify the comparison and that a better
comparison could be made if more data was available. However, according to our mandate, we have to make an
objective assessment of the evidence put before us (Article 11 of the DSU). Our approach should, therefore, not be
read to imply that risk assessments should be limited to disease agents that have actually been detected nor that they
cannot take into account evidence related to scientific research.
351 Para. 8.113 and Annex 1 to our report.
352 Para. 8.107.
353 Para. 8.121.
354 Paras. 8.123 and 8.124.

available - are unconvincing. First, as we just noted, for any given situation a level of protection
applies. Article 5.5 directs us to compare for diffe rent situations the relate d levels of protection as
they are currently considered to be appropriate by Australia and this whether or not the sanitary
measures enacted to achieve that level are based on a risk assessment. Of course, such comparison
would be easier and more accurate if for both situations an appropriate risk assessment were available.
However, according to Article 5.5 and our mandate set out in Article 11 of the DSU (to make an
"objective assessment of the matter before [us], includi ng an objective assessment of the facts of the
case"), we are called upon in this case to make this comparison and to do so on the basis of the
evidence before us. We cannot conduct our own risk assessment. Nor do we attempt to do so in this
report. The fact that one of the experts advising th e Panel stated that "if you are trying to say which
[of two products] is the most risky, then you need to know something about and possibly do a full
assessment for [the other] product"
355 and that "it would be sensible to assess that which you have
prioritized initially to have the highest risk firs t, but until you have done the risk assessment, you
actually cannot be sure you have got that right" 356, does not change our position. Nor do we disagree
with these statements. Indeed, fo r a scientist to say with scientif ic certainty that one product
represents a higher risk than the other, there may be a need to have two, more or less, complete sets of
data, including two risk assessments. And even on th at basis a scientist would probably not be able to
state with absolute certainty that one product is risk ier than the other. Our mandate is different. We
are not asked to make a scientific risk comparison nor to state with scientific certainty that one
product is riskier than the other. We can only weig h the evidence put before us and, on the basis of
the rules of burden of proof we adopted 357, including the use of factual presumptions, decide whether
sufficient evidence is before us - evidence which has not been rebutted - in order to state that it can be
presumed that one product is riskier than the other. Second, the obligations contained in Article 5.1
(risk assessment) and Article 5.5 are complementary, not mutually exclusive. We consider, therefore,
that a WTO Member cannot justify the inconsiste ncy with one Article on the ground that such
inconsistency avoids an additional inconsistency w ith another Article. Third, in order to impose
sanitary measures for the other products compared to the salmon products further examined, a
complete risk assessment is not always required. Article 5.7 allows for the provisional adoption of
sanitary measures in cases where relevant scientific evidence is insufficient. 358 Finally, we note that
the Appellate Body in EC - Hormones when addressing Article 5.5 also compared one situation (the
treatment provided by the Europ ean Communities for five of the six hormones at issue) to another
situation (the treatment provided by the Europ ean Communities to carbadox and olaquindox) even
though the European Communities had not submitted a risk assessment for the latter situation.359
8.127 Assessing now the sanitary regimes imposed for the products compared, we recall, first, that
for the salmon products further examined (the first situation in all four comparisons we outlined in
paragraph 8.113), Australia currently imposes an import prohibition. 360 Considering this sanitary
measure, we assume that the level of protection de termined to be appropriate by Australia for these

355 Wooldridge, Transcript, para. 278.
356 Ibid., para. 291.
357 Paras. 8.40 ff.
358 Article 5.7 provides: "In cases where relevant sc ientific evidence is insufficient, a Member may
provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that
from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other
Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more
objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period
of time".
359 Op. cit., para. 218 and para. 226 ff. It would, of course, be easier and provide a more accurate
comparison if for both the situations compared a full risk assessment is available (see Transcript, paras. 271 ff.).
However, in our view, the absence of a full risk assessment for either situation does not, in particular for
straightforward comparisons, prevent scientists, and on that basis panels, to state in more general terms what is most
likely to represent a higher level of risk (see, e.g., Wint on, Transcript, paras. 280-283 and the quotes in paras. 8.136
ff.).
360 Paras. 8.19 and 8.95.

salmon products is very high. 361 We next examine the sanitary regime for the other products
compared to these salmon products.
8.128 In the first comparison 362, the salmon products further examined are compared to uncooked
Pacific herring, cod, haddock, Japanese eel and plaice for human consumption. The second
comparison363, assesses these salmon products as opposed to uncooked Pacific herring, Atlantic and
Pacific cod, haddock and European eel for human cons umption. In the third and fourth comparison,
respectively, the import of herring in whole, frozen form for use as bait and the import of live
ornamental finfish is addressed.
364 Answering Panel Question 4, Australia states that the sanitary
measures currently applied to the importation of the aquatic animals and relate d products other than
salmonids addressed in these four comparisons are listed in the 1996 Final Report:
"Import requirements for aquatic animals and their products other than salmonids:
All goods entering Australia are subject to quarantine. They may be inspected on
arrival and may be sampled and tested at the importer's expense regardless of whether
or not prior permission to import is required and granted.
The specific policies applying to the importation of aquatic animals (other than
salmonids), their products and related materials, are as follows:
- Live, freshwater, ornamental fish may be imported with prior written
approval. Approval is restricted to fish on Schedule 6 of the Wildlife
Protection (Regulation of Exports and Imports) Act 1982 and there are pre-
entry and post-entry requirements including a minimum period of 14 days in
post-arrival quarantine premises.
- Live, marine, ornamental fish may be imported subject to examination on
arrival for species identification, clinical health and presence of other
materials of quarantine concern. Approva l is restricted to fish on Schedule 6
of the Wildlife Protection (Regulation of Exports and Imports) Act 1982.
- Animals imported for scientific or disp lay purposes must be held in premises
approved for the purpose under the Quarantine Act 1908 . Permission must
also be obtained from DEST, under the Wildlife Protection (Regulation of
Exports and Imports) Act 1982 for the importation of fish species other than
those on Schedule 6 of that Act.

- Other live aquatic animals may be imported subject to risk assessment and
approval on a case by case basis. Permission must also be obtained from
DEST under the Wildlife Protection (Regulation of Exports and Imports) Act
1982.
- Meals derived from aquatic animals, for example fish and prawn meal,
require prior written permission for importation subject to suitable processing
of the product and inspection on arrival.

- Other non-viable aquatic animal products, for example mussels, are allowed
entry subject to inspection and confirmation of non-viability and freedom
from visible contamination.

361 Paras. 8.123 and 8.124.
362 Para. 8.113 and Annex 1 to our report.
363 Ibid.
364 Ibid.

- Clothes, footwear and used fishing gear that have had contact with fish or
fish farms overseas are subject to inspection on arrival and treatment if
required".
365
In its answer to Panel Question 4, Australia adds that its quarantine measures for aquatic animals are
under active review and that it expects that chang es to import policies may occur when current and
proposed studies have been completed. Australia further submits that other SPS measures related to
internal quarantine restrictions, human health a nd residue matters and SPS measures related to non-
fish vertebrates were not canvassed in its answer to our question. It also notes that ornamental fish are
the main type of live aquatic animals imported. Appr oval of imports of ornamental fish is restricted
to fish on Schedule 6 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 . They
are inspected on arrival to ensure that they are healthy, to confirm the identification of the species and
to ensure that there are no other materials or i ssues of quarantine concern present. Freshwater
ornamental fish have a compulsory quarantine dete ntion period of either 14 or 28 days in approved
quarantine premises. However, with respect to the uncooked non-salmonid products compared under
the first two comparisons outlined above and fish used as bait, at issue in the third comparison, neither
the 1996 Final Report nor Australia in its submis sions before us, mention any specific sanitary
measures.
8.129 On the basis of the information thus provided, we note that in any event the aquatic animals
and products compared to the salmon products furt her examined under any of the four comparisons,
are allowed for importation into Australia. On the other hand, the salmon products further examined
cannot be imported. We further recall that in the circumstances of this dispute and for the purposes of
our examination under the first element of Article 5.5, we would assume that a difference in the
sanitary measures imposed for the different situat ions compared, does reflect a distinction in
appropriate levels of protection. 366 We thus assume in this case that the rather substantial difference
in sanitary measures imposed by Australia for the salmon products further examined (an import
prohibition) as opposed to those imposed for the othe r four situations (where imports are allowed,
often without control; ornamental finfish only after control), does reflect a difference in the levels of
protection considered to be appropriate by Australia for each of the four comparisons in the sense of
the first element of Article 5.5.
 (ii) "Arbitrary or unjustifiable" differences in levels of protection
8.130 For Canada, no possible justification can be o ffered for the distinctions in the foregoing levels
of protection. Canada argues that expert review s commissioned by Australia, in particular the 1995

365 1996 Final Report, pp.5-6, italics in original.
366 Paras. 8.123 and 8.124.

Humphrey Report367, the 1995 BRS Report 368 and Technical Paper No. 3 (1992) 369 confirm that these
distinctions are arbitrary and unjustifiable.
8.131 With respect to the distinctions made be tween the salmon products further examined, on the
one hand, and whole, frozen herring for use as bait (t hird comparison) and live ornamental finfish
(fourth comparison), on the other hand, Canada adds that the likelihood of disease establishment
arising from the latter imports will be greater th an that arising from uncooked salmonids for human
consumption. This because, according to Canada , the sequence of events required for disease
establishment to occur through bait fish or ornamental finfish is greatly compressed. As far as bait
fish is concerned, Canada argues that it will unde rgo much less rigorous inspection than fish for
human consumption; that bait fish is not cooked su bsequent to entry into Australia as most salmon
products for human consumption would be; and that - unlike salmon products for human consumption
which would only be found in the aquatic environment as a result of unlikely chance events - bait fish
are imported for the specific purpose of being introdu ced into the aquatic environment. With respect
to ornamental finfish, Canada submits that sev eral critical risk-reduction steps, including product
preparation (evisceration etc.), internal inspection and physical/chemical treatment such as freezing
and cooking are absent. For Canada, the greater risk posed by live ornamental finfish is also
confirmed by empirical evidence: unlike dead, eviscerated product, for which there are no
documented cases of disease transmission anywhere in the world, live ornamental finfish imports are
known to have introduced exotic diseases, including into Australia.
370
8.132 Australia contends that the reports cited by Canada are only draf t documents or reports
written by independent consultants, used fo r public discussion purposes, which do not represent
Australian government policy. For Australia, these re ports are part of a review process of existing
quarantine policies with the objective to determine appropriate and consistent quarantine measures for
aquatic animals and their products. They are part of the practices and processes of government in
Australia and were undertaken at a stage of policy formulation. Australia further submits that the
quotations referred to by Canada have been taken out of context. With respect to the 1995 Humphrey
Report, Australia argues that it went on to say that given Australia's disease status, restrictions on the
importation of salmonids are reas onable and that a risk assessme nt process may be required.
According to Australia, it did not say that the measures on salmon are unwarranted: it saw salmonids
as a higher risk species, recommended minimum restrictions and stated that all fish should be the

367 Humphrey, J.D., Australian Quarantine Policies and Practices for Aquatic Animals and their Products: a
review for the Scientific Working Party on Aquatic Animal Quarantine, Bureau of Resource Sciences, 1995, Canadian
Ex. A-22: "Major inconsistencies exist under existing quarantine regulations, whereby all fish are permitted entry,
except for fresh or frozen salmon" (at p.88); "All non-living finfish animals or products derived therefrom destined for
human consumption should be considered for importation. The arbitrary distinction between salmonid and non-
salmonid fish should be repudiated" (at pp.119-120).
368 Nunn, M.J., Aquatic Animal Quarantine in Australia: Report of the Scientific Working Party on Animal
Quarantine, Bureau of Resource Scienc es (BRS), 1995, Canadian Ex. A-21, p.34: "... there is currently a major
inconsistency whereby fresh or frozen products derived from finfish other than salmonids may be imported without
specific quarantine restrictions, whereas salmonid flesh is pr ohibited unless treated in a manner to inactivate potential
pathogens"; "in view of the absence of documented examples of exotic disease incursions resulting from imports of
products of aquatic animals for human consumption, and the international acceptance of evisceration as a means of
substantially reducing the risk of disease transfer in finf ish for human consumption, the present restrictions on the
importation of salmonid flesh for human consumption cannot be justified and should be revised"; "all non-living
finfish or products derived therefrom destined for human consumption should be considered for importation" and "the
arbitrary distinction between salmonid and non-salmonid fish should be repudiated".
369 Quarantine, Health and Movement, Technical Paper No. 3, in Draft National Strategy on Aquaculture:
Technical Papers for Discussion, Australian and New Z ealand Fisheries and Aquaculture Council, December 1992,
Canadian Ex. A-19, p.2: "The arbitrary separation of aquaculture/recreational species from others (especially
ornamental species) has little, if any, scientific basis ...".
370 Canada refers to the 1995 Humphrey Report, p.88 a nd a study by Langdon, J.S., of the Fish Health
Reference Laboratory, entitled: "Diseases of Introduced Au stralian Fish in Fish diseases: refreshers course for
veterinarians", May 23-27, 1988, Canadian Ex. B-32, p.225 at p.231.

subject of a case-by-case study. 371 Australia submits that such case-by-case process has commenced.
With respect to the 1995 BRS Report, Australia cont ends that it made the same recommendations as
the 1995 Humphrey Report: the quarantine restrictions , in excess of eviscerati on, are justified, but
quarantine restrictions on both salmonids and non-sa lmonid aquatic animals s hould be reviewed and
brought into consistency.372
8.133 In examining the second element under Article 5.5, we recall, first of all, that each of the four
comparisons have at least one disease agent in common - or at least, for the salmon products further
examined, an alleged concern for that disease ag ent - and that, therefore, for each of these
comparisons the two situations compared can be assumed to represent the same or a similar disease
risk as well as the same or similar associated bi ological and economic consequences. However, we
further recall that Australia effectively bans the import of the salmon products further examined, but
allows the import of the other four categories of fish or fish products. It might, therefore, be expected
that some justification for this distinction in san itary measures and corresponding levels of protection
exists, such as a higher risk related to imports of the salmon products further examined. If not, these
distinctions could be considered to be "arbitrary or unjustifiable" in the sense of the second element of
Article 5.5.
8.134 Since we have more evidence before us which relates to the third and fourth comparison, we
start our examination with these two comparisons. That is: a ban on the salmon products further
examined compared to, respectively, allowing imports of herring in whole, frozen form for use as bait
and allowing imports of live ornamental finfish. We note, however, that the arguments, reports,
studies and expert opinions submitted to us in this respect - rather than pointing in the direction of a
higher risk related to the salmon products further exam ined, in order to justify the stricter sanitary
measures imposed for these products - all provide evidence that the two categories of non-salmonids,
for which more lenient sanitary measures apply, can be presumed to represent at least as high a risk -
if not a higher risk - than the risk associated with the salmon products further examined.
8.135 We recall that the experts advising the Panel stated that the biological and economic
consequences of a disease introduction (i.e., th e consequences of a disease once established in a
country) will generally be the same or simila r in a given country, irrespective of the product
introducing the disease.
373 With respect to the products we decided to compare under Article 5.5, no
evidence to the contrary is before us. In particular, nothing in the 1996 Final Report (especially its
Section 3 which addresses the ec onomic and other impacts of salmonid disease introduction into
Australia) represents evidence to the contrary. We shall thus assume that the consequences of disease
introduction in Australia are the same or similar irrespective of whether th e disease is introduced by
imports of the salmon products further examined or by imports of herring used as bait or live
ornamental finfish.
8.136 First, we note the following excerpts from re levant reports and studies submitted to us which
address the relative risk related to salmon products (including, or for some studies even specifically
addressing, the salmon products further examined) as opposed to bait fish or live ornamental fish. We
note that these reports do not form part of Australia 's formal risk assessment nor represent Australia's
official government policy. However, to the exte nt they constitute relevant available scientific
information which was submitted to the Panel, we c onsider it our task to take this evidence into
account. We consider that, for purposes of our exam ination, the scientific and technical content of
these reports and studies is relevant, not their admini strative status (i.e., whether they are official
government reports or not).
374 As to Australia's comment made at the interim review stage that we

371 Australia refers to the 1995 Humphrey Report, pp.89 and 120.
372 Australia refers to the 1995 BRS Report, p.35.
373 Para. 8.121.
374 Para. 7.5.

seem to accord a lesser evidentiary status to the 19 96 Final Report, we recall that this report does not
address the relative risk related to the different products we compare under Article 5.5.
 Technical Paper No. 3 (1992):
"The existing range of controls encomp asses the whole spectrum of possibilities from
a complete ban on live fish and raw products from salmonids, to virtually no
restrictions on the basis of health for mari ne aquarium fish. The arbitrary separation
of aquaculture/recreational species from others (especially ornamental species) has
little, if any, scientific basis and has led to the present anomalous situation cited
above.

Non-salmonid freshwater finfish - ... These requirements [imposed by Australia on
this category of fish, see para. 128 above] are patently inadequate to exclude many
serious diseases, especially those which may remain latent or become pathogenic
when transferred to another species ... Undoubtedly, the conditions for the
importation of freshwater aquarium fish are in urgent need of upgrading".
375
(underlining added)
1995 BRS Report:
"The Working Party noted the consultant's conclusion (Section 9.1.2) on the disease
risk of different imports. It agreed that live aquatic animals pose the highest risk of
introducing exotic disease. It noted in particular that live ornamental finfish are a
special case because they are known or potential vectors of diseases of high
quarantine importance, are traded widely internationally, and are imported in large
numbers into Australia each year

The Working Party noted the consultant's conclusion (Section 9.1.2.3) that the use of
live finfish for bait or for food for carni vorous finfish constitutes a major risk of
disease transmission, and of introducing exotic disease if the bait fish or feed fish is
imported.

The Working Party noted the consultant's conclusions (Section 9.1.2.5) on
inconsistencies in current policy on the im portation of non-living aquatic animals for
human consumption. It acknowledged that processing can significantly reduce the
risk of entry of exotic pathogens in such products. It also acknowledged that detailed
epidemiological information may be needed from the exporting authority to assess the
risk of importing such products".
376 (underlining added)
"The Working Party agreed with the consu ltant's conclusions (Section 9.2.3.2) on the
potential of ornamental finfish to be vectors of diseases ... The Working Party agreed
with the consultant's conclusion (Section 9.2.3.3) that there are two broad risk
categories with regard to ornamental finf ish imports [a higher risk category and a
lower risk category] ... The Working Party noted that goldfish Carassius auratus ,
guppies Poecilia reticulata and gouramis Trichogaster trichopterus present special

375 Technical Paper No. 3 (1992), pp.2-3.
376 1995 BRS Report, pp.4-5. See also the 1995 Humphrey Report, pp.87-91.

cases for immediate inclusion in the higher risk category of liv ing finfish imports
because:
- they are recognised vectors of exotic diseases of high quarantine importance;
- they are farmed, or likely to be farmed in open systems or management, with
direct access to natural waters; and
- large numbers are currently imported into Australia.
The Working Party noted with concern the consultant's conclusion that there is a
major inconsistency whereby certain hi gher risk species nominally imported for
ornamental purposes are subject to minimal quarantine, but other species of equal or
lesser risk require much higher standards of quarantine".377 (underlining added)
"The Working Party noted that finfish and aquatic invertebrates are imported for bait
and fish feed, and that the volume of such imports is increasing. The Working Party
noted that some major diseases of aquatic animals have spread internationally through
the practice of importing bait fish. From first principles, it agreed with the
consultant's conclusion (Section 9.8.1) that this activity constitutes a high risk of
introducing exotic pathogens".378 (underlining added)
1995 Draft Report:
[addressing salmon "disposed of as fish bait or burley" as a risk factor] "This practice
[disposal of salmon as fish bait or burley] is thought to present the greatest risk of
disease introduction ... Fish remains, used as bait, would present as much risk as
burley containing uncooked fish product. So me of the bait would be taken by caught
fish but some may be lost in the water or eaten by fish that are not landed". 379
(underlining added)
[providing "product conclusions"] "It has been concluded that the more processing
the product receives the lower risk that the product presents. In general, value added
products present less risk because processing removes tissues that are more likely to
harbour pathogens and to be discarded prior to cooking".380 (underlining added)
We note, moreover, that, according to statistics provi ded by Canada (and not contested by Australia),
during the period between 1988 and 1995 57,663,000 fr eshwater live ornamental fish and 1,193,000
salt water live ornamental fish have been imported into Australia. 381 With respect to imports of bait, a
Report of the National Task Force on Imported Fish a nd Fish Products stated the following: "[b]ait
users, both commercial and recreational, import fi sh and fish products. According to the import
survey, commercial bait users are extremely dependent upon the import of bait . This dependence
varies between different industries".382 (emphasis added)
8.137 The evidence ou tlined above points in the direction of a higher risk of disease introduction
associated with imports of bait fish and live ornamental fish than the risk posed by imports of salmon
products for human consumption. Nevertheless, Au stralia imposes far stricter sanitary measures for
the latter category than it does for the former. Wh ether or not this evidence is part of official
Australian government policy does not, in our mind, cha nge the scientific weight to be given to it.

377 Ibid., pp.17-19. See also the 1995 Humphrey Report, pp.101 ff.
378 Ibid., p.40. See also the 1995 Humphrey Report, p.123.
379 1995 Draft Report, p.33.
380 Ibid., p.214.
381 Annex A-H to Canada's first submission.
382 Report of The National Task Force on Imported Fish and Fish Products, A report into the implications
arising from aquatic animal imports, DPIE, December 1996, p.23, see also at pp.24-26 and 30.

We consider, therefore, that Canada, as party ch allenging the measure at issue under Article 5.5, has
raised a presumption (i.e., made a prima facie case) that the distinctions in levels of protection
imposed by Australia for, on the one hand, the salm on products further examined and, on the other
hand, herring in whole, frozen form for use as bait and live ornamental finfish, are "arbitrary or
unjustifiable" in the sense of the second element in Article 5.5.
8.138 Second, we note the following opinions of experts advising the Panel which confirm this
prima facie case of "arbitrary or unjustifiable" distinctions:383
Burmaster:
[answering Panel Question 10 and commenting on Canada's claim that "the likelihood
of disease establishment is higher for imports of whole, uneviscerated bait fish and
for live fish known to host that disease agent than it is for imports of uncooked
salmon for human consumption"] "This see ms highly likely to me, but I have no
independent information to support or refute such an opinion".384 (underlining added)
Rodgers:
[answering Panel Question 9] "The importa tion of several other groups [the Panel
Question refers to "imports of aquatic anim als or aquatic animal products, other than
salmonids"] would pose a potential risk of disease introduction that would probably
be at least as high, if not higher, than that posed by the importation of uncooked
salmon from Canada. These groups would include any live ornamental fish, bait fish
and trash fish for feeding aquacultured species. It is not possible to predict though,
without an import risk analysis study, which of these represents the highest risk.
However, importation of live fish for st ocking of open waters containing indigenous
fish, the feeding of trash fish or bait fish directly to aquacultured species as a feed
supplement or substitute woul d probably be the most important in terms of risk.
Escapees from a closed system into an open waterway could also be a problem. The
arrival of furunculosis into Australia via imported goldfish or into Norway via salmon
smolts and the first reported outbreaks of VHS in turbot from Scotland and Ireland
help to support the hypotheses of live fish importations and feeding respectively".
385
(underlining added)
[answering Panel Question 10] "It is proba bly true to say that for a given disease
agent, the likelihood of disease establishment is higher for imports of whole, non-
eviscerated bait fish and for live fish than it is for imports of uncooked salmon for
human consumption".386 (underlining added)
Winton:
"... the subsets of pathogens in these di fferent species [salmon products for human
consumption, bait fish and live ornamental fi sh] will be different. Ornamental fish
will have their own subset of pathogens. But in a general sense, live fish that are

383 We only refer to three of the four experts advising the Panel since only three of them have expressed an
opinion on this issue.
384 Burmaster answers, p.5. See also Burmaster, Transcript, para. 279.
385 Rodgers answers, p.13.
386 Rodgers answers, p.14. Rodgers then goes on to address what he calls the "actual level of risk", looking
at risk reduction factors which might be present (e.g., import of live fish for scientific purposes only) or be taken (e.g.,
control measures) with respect to live fish or bait. However, these factors do not affect the risk comparison made here
since Australia has no risk reduction factors in place for bait fish nor any stringent control measures for live
ornamental finfish, see para. 8.128.

introduced carry probably, in my view, the highest risk of any category. We have
documented examples of ornamental fish carrying both Notifiable Diseases of the
OIE and non-notifiable other fish diseases in in ternational trade. Second level, might
well be those fish used as bait. Again Dr . Rodgers' point is good, we may not have
ever sampled them adequately to know, but in an example from the North American
coast, for example, number of years ago, everyone assumed that herring were sent
around as safe products up and down the coast and used as bait. We now know that
Pacific herring, and in fact Atlantic herring in the Baltic and North Sea are probably
the major reservoir for viral haemorrhagic septicaemia virus, and probably constitute
a much higher risk than a certified population dead salmonids or eviscerated
salmonids. So I would put them in the sec ond most risky category. The most safe of
the three groups would be uncertified un controlled open-ocean salmonids such as I
have talked about here".387 (underlining added)
[answering Panel Question 24] "Members of the FDC [Fish Diseases Commission]
have reviewed the scientific evidence and are not aware of a known expansion of
range for a fish pathogen due to the moveme nt of eviscerated fish; conversely, there
are many cases of disease transmission associat ed with shipment of infected live fish,
live eggs, or even uneviscerated fish used to feed other aquatic animals that are
documented in the scientific literature".388 (underlining added)
[remarks on Panel Question 12] "The FDC cons iders that the risk of transmission of
fish diseases by movement of eviscerated fish products is probably lower than the risk
from certain other activities (movement of aquarium fish, ballast water in ships, etc.)
and thus does not justify trade restrictions".389 (underlining added)
8.139 We note, moreover, that Australia has not submitted any evidence which contradicts the
above-mentioned reports a nd opinions referred to by Canada which constitute evidence that the
salmon products further examined effectively pose less risk than whole, frozen herring used as bait or
live ornamental finfish. Nor has Australia, in its turn, put forward positive evidence of a possible
justification for the distinctions in levels of protection it currently imposes. 390 On the contrary, at our
meeting with the experts advising the Panel Austra lia seemed to agree that in general terms (and
without prejudice to Australia's position that risk ass essments must be undertaken before risks can be
compared) live fish can be expected to pose the hi ghest risk, thereafter bait fish and only after that
salmon products for human consumption.391

387 Transcript, para. 267. See also Winton, Transcript, para. 179: "there is such a large body of scientific
evidence associating movements of live fish and eggs with diseases, and the absence of scientific data associating any
other products for human consumption that the preponderance of data seem to be that the risk is quite low". At the
experts meeting, Winton provided further explanation as to why bait fish and live fish ornamental fish pose higher
risks: "One, the fish that go directly in the water course bypass some of the exposure methods that might be imagined,
some of which are not so likely that would accompany human consumption products, and, secondly, because some of
these fish are known to be carriers of diseases and if they are particularly uncertified or unexamined, could be carrying
that disease at a level as high or higher than that of an eviscerated product" (Winton, Transcript, para. 281). See also
Winton, Transcript, paras. 42 and 203.
388 Winton answers, p.3.
389 Winton answers, p.5.
390 When asked to justify this difference in treatment, Australia limited its answer to a statement that risk
analyses are scheduled or taking place for bait fish and live ornamental fish (Australia's answer to additional Panel
Question 9 of 23 January 1998).
391 At the meeting with experts advising the Panel Australia noted the following: "As a sweeping
generalization, everyone agrees with these kind of three levels of risk. What Australia is saying is that you have got to
do more than that. You have got to do more than sweeping generalizations if you are looking at product which may
have a different intended purpose. So therefore, Australia cont ends that whether ornamental fish, or whether bait fish
we need to do a risk assessment ... So in short, we agree wi th generalizations, but the specifics are really what we are

8.140 As to Australia's argument that imports of salmon products pose higher risks than imports of
bait fish or live ornamental finfish because salm on products may carry a series of other, additional
diseases appearing on the list of 24 diseases of conc ern, we recall that the salmon products further
examined are only those in dispute ( inter alia, only Canadian salmon) from adult, wild, ocean-caught
Pacific salmon. According to Canada 392, the disease agents known to occur 393 in this category of
Canadian salmon are limited to four: Renibacterium salmoninarum, IHNV, salmon leukaemia virus
and Henneguya salminicola. Australia has not contested this. The expert advising the Panel on this
issue stated that also the follo wing two disease agents are reported to occur in adult, wild, ocean-
caught Pacific salmon: Kudoa thyrsites and Parvicapsula sp .394 However, only one of these two
additional diseases ( Parvicapsula sp.) appears on Australia's list of 24 diseases of concern to it. In
total only five of the 24 diseases of concern to Au stralia have thus been detected in the salmon
products further examined.395 Moreover, none of the four disease agents referred to by Canada under
the third comparison and known to occur in herring for use as bait ( Aeromonas salmonicida (atypical
strain), Erythrocytic necrosis virus, Infectious haematopoietic necrosis virus and VHSV), are - on the
basis of the evidence before us - reported to occur in the salmon products further examined. 396 The
same is true for the five disease agents addressed under the fourth comparison ( Aeromonas
salmonicida (atypical strain), Yersinia ruckeri, Edwardsiella tarda , IPNV and Vibrio anguillarum ):
all of them are known to occur in live ornamental finfish, but none of them has been reported in the
salmon products further examined. 397 Since, moreover, both herring used as bait and live ornamental
finfish are known to be host to one of the di sease agents of greatest concern to Australia ( Aeromonas

dealing with" (Transcript, para. 285). See also Australia's st atement in Transcript, para. 181 ("On relative terms, as
Dr. Winton said, well, gametes and all the rest pose greater risk, but nevertheless, it can happen").
392 According to Rodgers, one of the experts advising the Panel, one should, indeed, give particular
importance to Canada's views on disease prevalence. At our meeting with experts advising the Panel, Rodgers noted
that "the most accurate up to date information concerning disease prevalence in an exporting country is usually held
by that exporting country themselves, providing that country is of course recognised as a competent authority. In this
case of course, Canada is a well respected, has a well respected monitoring system in place for this type of situation"
(Transcript, para. 19).
393 We focus on those diseases "known to occur" (i.e., for which there is evidence that they may occur in the
specific product), not those more generally "of concern" to Au stralia. In this respect Wooldridge, when addressing
the question of which diseases are appropriate to include in a risk assessment, stated the following: "those diseases
which one may legitimately look at are any that one has evidence could be in the product , and that might not simply
be the information notified to the OIE, but it might be from a literature research or personal reports of
communications" (Transcript, para. 107, emphasis added). See also Rodgers, Transcript, para. 193 ("I think most
monitoring programmes and most national legislation is based on the understanding that to take action you must
actually isolate the organism itself"). However, we agree wi th Australia in the sense that the fact that we focus on
those diseases which have been detected in the salmon products further examined, does not mean that there is absolute
certainty that other diseases do not occur in these products (see Transcript, paras. 244-253 and 327). See also footnote
1 to Annex 1 of our report.
394 Rodgers' answer to Panel Question 7, Rodgers answer s, p.8. At the meeting with experts advising the
Panel, Rodgers limited his answer from four to only three additional diseases, confirming that the fourth one has only
been detected in juveniles, not adult fish (Transcript, para . 230). In our report we only mention two of the three since
at the interim review stage, Australia pointed out that the third additional disease referred to by Rodgers, namely
"marine anaemia", is also known as "salmon leukaemia virus", a disease which is listed in the 1996 Final Report and
which is one of the four diseases of which Canada acknowledges that it occurs in salmon products further examined.
This disease is therefore not an "additional disease".
395 In this respect it is interesting to note that according to Winton and Rodgers, wild ocean-caught Pacific
salmon during their ocean phase would probably, in a general sense, represent less of a disease risk than fresh water
fish or cultured fish in an uncontrolled water supply (Transcript, paras. 261-263).
396 This is reflected in the chart attached in Annex 1. We note, in particular, Winton's reply to the question
whether bait fish represent higher risk than the salmon products further examined: "I could make that statement with
a high level of certainty for Pacific herring in North America. As bait fish those fish contain a significantly and
quantifiably higher incidence and prevalence of infection than do Pacific salmon" (Transcript, para. 283).
397 See chart in Annex 1.

salmonicida)398, a disease which has not been reported in the salmon products further examined, we
consider that - on the basis of the evidence before us - Australia has not been able to substantiate its
argument that the salmon products further examined represent a higher risk than herring used as bait
or live ornamental finfish.
8.141 We thus consider that Australia has not been able to rebut the prima facie case of "arbitrary or
unjustifiable" distinctions established by Canada. We find, therefore, that, as of today and on the
basis of the evidence provided to us, the distinctions in levels of sanitary protection reflected in
Australia's treatment of, on the one hand, the sal mon products further examined and, on the other
hand, herring in whole, frozen form for use as bait and live ornamental finfish, are "arbitrary or
unjustifiable" in the sense of the second element of Article 5.5.
8.142 In paragraph 8.126 we have dealt with Au stralia's argument that risk assessments must be
undertaken for all situations examined under Article 5.5 before the risk arising from these situations
can be compared. Moreover, our finding that the fo regoing distinctions in le vels of protection are
"arbitrary or unjustifiable" does not imply any judgment as to whether the current Australian measures
imposed on the salmon products further examined - or the appropriate level of sanitary protection
these measures reflect - are warranted. Our finding only relates to the distinctions made by Australia
in the levels of protection it applies to different situations. It does not give any value judgment on any
of these levels of protection taken separately.
8.143 Since we already found that the third a nd fourth comparison put forward by Canada under
Article 5.5 involve distinctions in levels of protection which are "arbitrary or unjustifiable", we see no
need to further examine the justifia bility of the distinctions made by Australia in the first and second
comparison. We shall not, therefore, make further findings with respect to these comparisons.
 ( iii) Distinctions in levels of protection which result in
"discrimination or a disguised restriction on international
trade"
8.144 Canada submits that Australia's arbitrary and un justifiable distinctions in its appropriate levels
of protection result in a disguised restriction on in ternational trade. In its interpretation of "a
disguised restriction on international trade" in the sense of the third element of Article 5.5, Canada
referred, prior to the Appellate Body Report on EC - Hormones , to the following statement of the
Appellate Body in its Report on US - Standards for Reformulated and Conventional Gasoline
("US Gasoline"):
"... "disguised restriction", whatever else it covers, may properly be read as
embracing restrictions amounting to arbitr ary or unjustifiable discrimination in
international trade taken under the guise of a measure formally within the terms of an
exception listed in Article XX. Put in a somewhat different manner, the kinds of
considerations pertinent in deciding whethe r the application of a particular measure
amounts to "arbitrary or unjustifiable discrim ination", may also be taken into account
in determining the presence of a 'disguised r estriction' on international trade. The

398 1995 Draft Report, p.i: "The IR A considers 24 diseases and judges Aeromonas salmonicida to pose the
greatest risk of introduction" and 1996 Final Report, p.38: " A. salmonicida has a wide range of hosts and would
present one of the most serious threats to Australian fish". The quotes do not distinguish typical from atypical strains
of Aeromonas salmonicida. However, at the interim review stage, Australia submitted that only the typical strain of
Aeromonas salmonicida (not the atypical strains, which have been detected in herring for (continued) use as bait and
live ornamental finfish) is of the greatest concern to it and that the we confused the two different strains in our interim
report. In reply, Canada stated that any so-called "c onfusion" is created by Australia's own 1996 Final Report and
referred to the following statement at pp.140-141: "Atypical is olates are of larger concern and cause heavier losses
than typical ones in some salmon-culturing areas, for example Atlantic Canada. Similar scenarios must be expected if
a virulent-typical or atypical-strain were established into Australian waters".

fundamental theme is to be found in the purpose and object of avoiding abuse or
illegitimate use of the exceptions to substantive rules available in Article XX".399
For Canada, this reasoning of the Appellate Body with respect to Article XX of GATT 1994 was
equally applicable to Article 5.5 a nd the relationship between arbitrary or unjustifiable distinctions in
levels of protection and the resulting disguised rest rictions on international trade. Canada submitted
that the distinctions made by Australia in its levels of protection for the salmon products further
examined and for, inter alia, whole, frozen herring for use as ba it and live ornamental finfish were
arbitrary and unjustifiable and resulted in an import ban on these salmon products, i.e., a restriction on
international trade in the guise of a sanitary measure.
8.145 Prior to the Appellate Body Report on EC - Hormones , Australia submitted that it did not
disagree with Canada's legal interpretation of "a di sguised restriction on international trade" contained
in Article 5.5. Later, Australia argues that the dir ect application of Appellate Body findings in regard
to interpretations of Article XX of GATT 1994 to Ar ticle 5.5 has been rejected by the Appellate Body
in EC - Hormones . Australia further argues that Canada's assertion of a "disguised restriction on
international trade" does not contain any evidence th at the measure at issue results in a disguised
restriction on international trade.
8.146 With respect to the interpretation of the thir d element under Article 5.5, i.e., the need for the
distinction in levels of protection to result in "di scrimination or a disguised restriction on international
trade", we recall the Appellate Body's findings in EC - Hormones:
"214. ... The last element requires that th e arbitrary or unjustifiable differences
result in discrimination or a disguised restriction of international trade. We
understand the last element to be referring to the measure embodying or
implementing a particular level of protec tion as resulting, in its application, in
discrimination or a disguised restriction on international trade.
215. We consider the above three elements of Article 5.5 to be cumulative in
nature; all of them must be demonstrated to be present if violation of Article 5.5 is to
be found. In particular, both the second and third elements must be found. The
second element alone would not suffice. The third element must also be
demonstrably present: the implementing meas ure must be shown to be applied in
such a manner as to result in discrimination or a disguised restriction on international
trade. The presence of the second element - th e arbitrary or unjustifiable character of
differences in levels of protection considered by a Member as appropriate in differing
situations - may in practical effect operate as a "warning" signal that the
implementing measure in its application might be a discriminatory measure or might
be a restriction on international trade dis guised as an SPS measure for the protection
of human life or health. Nevertheless, th e measure itself needs to be examined and
appraised and, in the context of the differi ng levels of protection, shown to result in
discrimination or a disguised restriction on international trade". 400 (italics in original,
underlining added)
With respect to the reference made by Canada in this case to the Appellate Body's findings in US -
Gasoline, the Appellate Body in EC - Hormones stated the following:
"... in view of the structural diffe rences between the standards of the chapeau of
Article XX of the GATT 1994 and the elements of Article 5.5 of the SPS Agreement,

399 Appellate Body Report, adopted 29 April 1996, WT/DS2/AB/R, p.25.
400 Op. cit., paras. 214-215.

the reasoning in our Report in United States - Gasoline , quoted by Panel, cannot be
casually imported into a case involving Article 5.5 of the SPS Agreement".401
Specifically addressing the question of whether the measure at issue in EC - Hormones "results in
discrimination or a disguised restriction on inte rnational trade", the Appellate Body stated the
following:
"In our view, the degree of difference, or the extent of the discrepancy, in the levels of
protection, is only one kind of factor which, along with others, may cumulatively lead to
the conclusion that discrimination or a disguised restriction on international trade in fact
results from the application of a measure or measures embodying one or more of those
different levels of protection. ... It is well to bear in mind that, after all, the difference in
levels of protection that is characterizable as arbitrary or unjustifiable is only an element
of (indirect) proof that a Member may actually be applying an SPS measure in a manner
that discriminates between Members or constitutes a disguised restriction on international
trade, prohibited by the basic obligations set out in Article 2.3 of the SPS Agreement .
Evidently, the answer to the question whethe r arbitrary or unjustifiable differences or
distinctions in levels of protection estab lished by a Member do in fact result in
discrimination or a disguised restriction on international trade must be sought in the
circumstances of each individual case".
402 (underlining added)
After examination of this issue, the Appellate Body in EC - Hormones concluded as follows:
"Our conclusion, therefore, is that th e Panel's finding that the "arbitrary or
unjustifiable" difference in the EC levels of protection in respect of the hormones at
issue on the one hand and in respect of carbadox and olaquindox on the other hand,
"result in discrimination or a disguised r estriction on international trade", is not
supported either by the architecture and structure of the EC Directives here at stake or
of the subsequent Directive on carbadox and olaquindox, or by the evidence
submitted by the United States and Canada to the Panel. ...".403 (underlining added)
8.147 At our second substantive meeting, Canada added the following factors which it claims prove
that the measure at issue, implementing the level of protection imposed by Australia for the salmon
products further examined, results in a disguised r estriction on trade. First, Canada refers to
Australia's unwillingness to tolerate even a potential presence of disease agents in salmonids
(resulting in a ban on uncooked product) whereas it does accept imports of non-salmonids where the
presence of the same agents has been confirmed. Second, Canada asserts that there was an abrupt
change in conclusions from the 1995 Draft Report, suggesting that imports of the salmon products
further examined should be allowed, to the 1996 Fi nal Report, which advocates that the ban should be
maintained. Third, Canada argues that the 1996 Final Report excluded relevant information which
was considered in the 1995 Draft Report. Fourth, Canada highlights what it considers to be the
absence of any scientific basis for the measure at issu e. Fifth, Canada notes Australia's failure to
specify the pathogens addressed by its measure. Sixth, Canada argues that despite Australia's
professed concerns for the health of its salmonid populations, Australia does not control the internal
movement of fish (including salmon), hosts to the disease EHN. 404 Seventh, Canada submits that the
measure at issue is not being applied to achieve an appropriate level of protection, but that Australia is
using "appropriate level of protection" as a shield for a trade-restrictive measure.
8.148 Australia responds that Canada equates the second with the third element under Article 5.5,
an interpretation rejected by the Appellate Body in EC - Hormones . Australia submits that it has

401 Ibid., para. 239.
402 Ibid., para. 240.
403 Ibid., para. 246.
404 "Epizootic Haematopoietic Necrosis", also referred to as EHNV, i.e., EHN Virus.

undertaken a risk assessment on Pacific salmon and on that basis decided to maintain quarantine
restrictions. On a range of other aquatic animal products, it is undertaking a structured program of
risk assessments. Australia furthe r argues that it is a significant importer of aquatic animal products,
including smoked and canned salmon from Canada; that many of these imports compete directly
against domestic products in the Australian market; and that Australia is also a significant producer
and exporter of non-salmonid aquatic products. For Au stralia, these are the pa rticular circumstances
pertaining to Australia's quarantine measures on diff erent aquatic products. According to Australia,
most of the factors referred to by Canada are a ttempts to infer motives from Australia's decisions.
Australia argues that inferences of motive or intent are not borne out by the facts and do not constitute
evidence of trade discrimination or a disguised restriction. Recalling that the 1995 Draft Report did
not recommend that fresh, chilled or frozen salmon should be imported free of quarantine conditions,
Australia submits that the difference between the 1995 Draft Report and the 1996 Final Report
represents a small degree of difference between two highly conservative options. As to the change in
recommendations made by these two reports, Australia re fers to a reappraisal of scientific and other
data in the context of Australia's appropriate level of protection.
8.149 We recall, first, the arbitrary distinctions in levels of protection imposed by Australia for
comparable situations
405 (namely, for the salmon products furt her examined as opposed to that for
herring used as bait and live ornamental finfish). The evidence before us showed that imports of
herring for use as bait and live ornamental finfish - rather than posing less risk and thus warranting
less stringent sanitary measures - can be presumed to represent a higher risk than that related to
imports of the salmon products further examined.406 This evidence led us to find that the difference in
levels of protection is "arbitrary or unjustifiable". 407 In this respect, we note that the Appellate Body
in EC - Hormones stated the following:
"the arbitrary or unjustifiable character of differences in levels of protection
considered by a Member as appropriate in differing situations - may in practical effect
operate as a "warning" signal that the implementing measure in its application might
be a discriminatory measure or might be a restriction on international trade disguised
as an SPS measure for the protection of human life or health". (emphasis in
original)408
In this dispute, we do consider that the arbitrary character of the differences in levels of protection is a
"warning signal" that the measure at issue results in "a disguised restriction on international trade".
8.150 Second, we recall that the arbitrary differe nce in levels of protection thus imposed by
Australia for comparable situations is a rather substantial difference, namely an import prohibition for
the salmon products further examined as opposed to tolerance of imports of herring for use as bait
without control and of live ornamental finfish after control. 409 In this respect, we note the Appellate
Body's statement in EC - Hormones that
"the degree of difference, or the extent of the discrepancy, in the levels of protection,
is only one kind of factor which, along with others, may cumulatively lead to the
conclusion that discrimination or a disguised restriction on international trade in fact
results from the application of a measure". (emphasis added)410

405 I.e., "different situations" in the sense of the first element of Article 5.5, see paras. 8.115 ff.
406 Paras. 8.136 ff.
407 Para. 8.141.
408 Appellate Body Report, op. cit., para. 215.
409 Para. 8.129.
410 Appellate Body Report, op. cit., para. 240.

In this dispute, we do consider that the rather substantial difference in levels of protection is one of the
factors we should take into account in deciding whet her the measure at issue results in "a disguised
restriction on international trade", as argued by Canada.
8.151 We consider that an additional "warning signa l" is present in this dispute which is similar in
nature to the two outlined above in the sense that it is not conclusive in its own right. We recall our
finding that the sanitary measure in dispute, to the extent it in effect and from a sanitary perspective
imposes certain heat treatment requirements, is not reasonably supported or warranted by a risk
assessment and, therefore, not "based on" a ri sk assessment in accordance with Article 5.1. 411 On that
ground, we also found that the measure at issue, to that extent, violates the Article 2.2 requirement
that sanitary measures be based on scientific prin ciples and not be maintained without sufficient
scientific evidence.412 We consider that these two findings of inconsistency (with both Articles 5.1
and 2.2) constitute another "warning signal" which ma y, together with other factors, lead to the
conclusion that the measure at issue results in a "dis guised restriction on international trade". Indeed,
considering these violations of Articles 5.1 and 2.2 it would seem that the measure at issue constitutes
an import prohibition, i.e., a restriction on interna tional trade, "disguised" as a sanitary measure. We
do stress, however, that this additional "warning signa l" as such cannot be sufficient to conclude that
the measure results in a "disguised restriction on international trade".
8.152 In our view, the three "warning signals" outlined above are supported by three other factors
more substantial in nature. These factors are derived from the architecture and structure of the
measures which embody the different levels of protection we examined under the first and second
element of Article 5.5. All three suggest that the measure implementing the level of protection for the
salmon products further examined (i.e., the measure at issue), in its application and in the context of
the implementing measures imposed by Australia for the other products compared under Article 5.5,
results in "a disguised restriction on international trade".
8.153 First, in this particular case, the arb itrary and rather substantial distinctions in levels of
sanitary protection imposed by Australia (and referred to in the first two "warning signals" set out
above) are expressed in two substa ntially different implementing measures, namely, (1) an import
prohibition for the salmon products further examined, as opposed to (2) tolerance of imports of
herring for use as bait without control and of live ornamental finfish after control. 413 Nevertheless,
under the first element of Article 5.5, we considered the products to which these measures apply to be
comparable (as "different situations" under Article 5.5). 414 More importantly, under the second
element of Article 5.5 we also found that the ri sk arising from these products can be presumed to be
the same (and that the risk related to imports of herring for use as bait and live ornamental finfish
might even be greater than that arising from the salmon products further examined). 415 The fact that
Australia, therefore, applies substantially differe nt implementing measures to products which can be
presumed to represent the same risk, s uggests that Australia is effectively discriminating between, on
the one hand, the salmon products further examined (imports of which are prohibited) and, on the
other hand, herring used as bait and live ornament al finfish (imports of which are allowed). 416 Since,
in our view, the concept of "disguised restriction on international trade" in Article 5.5 includes, among
other things, restrictions constituting an arbitrar y or unjustifiable discrimination between certain
products - in particular in the event this discrim ination results from measures imposed on or in

411 Para. 8.99.
412 Ibid.
413 Para. 8.129.
414 Para. 8.121.
415 Para. 8.137.
416 According to the Report of The National Task Force on Imported Fish and Fish Products, DPIE,
December 1996, at p.24, Table 3.8, whole frozen herring for use as bait is mainly imported into Australia from New
Zealand, USA and Holland. At our interim review meeting Australia noted that Canada is also a significant producer
and exporter of herring and that it has the same access to the Australian market as any other supplier. Australia
further submitted that Canada also exports live ornamental fish to several destinations, including Australia.

connection with the importation of these products ( in casu , an import prohibition versus allowing
imports), we consider that this factor can also be taken into account in our decision as to whether the
measure at issue results in "a disguised restriction on international trade".
8.154 The second additional factor we consider to be relevant suggests elements of domestic
protection.417 In our view, the 1995 Draft Report and th e 1996 Final Report constitute an important
part of the "architecture" of the measure in dispute. 418 The measure at issue has been maintained as a
direct result of the 1996 Final Report's conclusions . The 1996 Final Report, in turn, is based on
earlier drafts, including, in particular, the 1995 Draft Report. The 1995 Draft Report reached the
following conclusion: "It is the conclusion of th is draft IRA [Import Risk Analysis] that the
importation of eviscerated, headless, wild, ocean-caught Pacific salmon from Canada and the USA
should be permitted, unde r specified conditions".
419 The 1995 Draft Report then added: "The results
of this analysis should be reviewed in the light of any significant advances in knowledge on scientific
and technical matters relevant to quarantine issues". 420 However, the 1996 Final Report reached a
different conclusion from that reached in the 1995 draft: "... it is recommended that the present
quarantine policies for uncooked salmon products remain in place". 421 This recommendation, in
effect, meant that the import prohibition on salmon products further examined should be maintained.
The change in recommendations between the 1995 Draft Report and the 1996 Final Report was,
therefore, one from allowing fresh, chilled or frozen product under specified conditions to prohibiting
its importation or requiring heat treatment, hence its transformation into a different product. Even
though we requested Australia on several occasions to clarify this rather substantial change in
conclusions, we consider that Australia has not provid ed us with information as to what happened or
what evidence was obtained in the period between th e issuance of the two reports - in particular
during the risk communication phase which took place subsequent to the circulation of the 1995 Draft
Report - that can sufficiently explain the change in recommendations (less than two years after the
1995 Draft Report) put forward in the 1996 Final Report.
422 Australia itself confirmed that the
reversal is not due to a change in its appropriate level of protection. 423 For Australia, the reversal was
made because of new scientific information (e.g., on spread of prawn viruses), a re-appraisal of
existing scientific information and the attendant uncer tainties associated with the estimates and a re-
assessment of the consequences of disease introducti on, in particular the potential environmental
impact and the socio-economic impact on recreationa l fisheries in Australia. However, the experts
advising the Panel all stated that in between th e 1995 Draft Report and the 1996 Final Report no new

417 In this regard we also note that in Australia's subm issions before this Panel, Australia noted that when
QP86A was imposed "[i]n Australia there was a desire to protect recreational fisheries based on salmonids and to
protect the potential development of a salmonid aquaculture industry". Moreover, according to an Industry
Commission Research Project on Australian Atlantic Sa lmon: Effects of Import Competition, 20 December 1996, at
p.5: "Atlantic salmon farming began in Australia in 1985, with considerable encouragement from the Tasmanian
Government ... Tasmanian production has grown from an initial harvest of 20 tonnes in 1986-87 to around 7000
tonnes in 1995-96".
418 As noted by Australia in its answer to original Panel Question 16: "The May 1995 draft import risk
analysis must be seen as part of a process which would lead to a final report to be put to the Director of Quarantine for
decision. The May 1995 draft put forward a proposal as a basis for comment and further discussion".
419 1995 Draft Report, p.iii.
420 Ibid.
421 1996 Final Report, p.70.
422 Para. 7.18.
423 At the meeting with experts advising the Panel, Austra lia stated the following: "... the experts themselves
have underlined at the point that the science and the methodology are dynamic and evolving, a point which of course
we have made in our submissions. I would note however, that the one thing that is not changing, is Australia's
appropriate level of protection . Australia has adopted a structured approach to the development of quarantine
policies, including the assessment and management of risk" (Transcript, para. 79, emphasis added).

scientific evidence relevant to the problem at hand has been produced. 424 In the words of the 1995
Draft Report there were therefore, according to the experts advising the Panel, a priori no "significant
advances in knowledge on scientific and technical ma tters relevant to quarantine issues" which could
warrant this rather substantial change in the 199 5 Draft Report's conclusions. With respect to the
other factors invoked by Australia, we note that none of them are clearly referred to in the 1996 Final
Report or, even less, mentioned by the 1996 Final Re port to be the reason for the reversal of the 1995
conclusions. Without making any conclusive stat ement in this respect, we nonetheless consider,
however, that on the basis of the evidence before us the decisive reason for reversing the 1995 Draft
Report's conclusion - that the salmon products furt her examined should be allowed into Australia
under specified conditions - might well have been inspired by domestic pressures to protect the
Australian salmon industry against import competition. 425 We acknowledge that this element, in
itself, does not constitute sufficient pr oof that the measure results in "a disguised restriction" on trade,
but consider that it can, nonetheless, be taken into account cumulatively with the other factors we
address.
8.155 Third, we recall that Australia bans th e import of the salmon products further examined
because of a "low" potential of introduction of 24 diseases, only five of which have been detected in
these salmon products. 426 When it comes to imports Australia thus imposes very strict sanitary
measures in order to uphold an allegedly very conser vative level of protection for its fish population.
However, some elements before us make us doubt wh ether Australia applies similarly strict standards
when it comes to the internal movement of salmon products within Australia or Australia's internal
monitoring and prevention mechanism for fish diseases more generally.
8.156 Canada refers, for example, to the disease Epizootic haematopoietic necrosis (EHN). This
fish disease is one of the five "Diseases Notifiabl e to the OIE" which means that, according to the
OIE, it is "considered to be of socio-economic a nd/or public health importance within countries" and
is "significant in the international trade of aquatic animals and a quatic animal products". 427 EHN is
reported to occur in salmon populations in Victoria, but not in other parts of Australia such as
Tasmania, Western Australia, Queensland and the Northern Territory. 428 Australia agrees with this.
Nevertheless, Australia does not impose any restricti ons on the internal movement of fish products.
We acknowledge Australia's argument that EHN is not a serious disease of salmonids, that an OIE
listing of a disease agent has, according to Australia , no scientific relevance as to evaluations of the
severity of that disease agent and that the biological consequences related to the introduction of EHN

424 Transcript, paras. 298-303. See also, in this resp ect, Rodgers, Transcript, paras. 33-34 ("Now for me, I
take it to mean that all these reports actually reach a simi lar scientific conclusion ... The problem for me seems to be
the change in emphasis and conclusion in the 1996 Final Report, which seems to consider the scientific advice but
then reaches a political decision, following public consulta tion") and Wooldridge, Transcri pt, para. 55 ("... the Final
Report does not make clear where any factual errors in the Draft may have occurred which may have altered the
assessed risks. And since it came to the opposite conclusion to that in the Draft, this clarity for any factual changes is
essential. It is very difficult to see from this whether different conclusions to an adequate assessment would be
valid").
425 Canada argues, for example, that "[f]ollowing the release of the May 1995 Report, Tasmanian salmon
producers lobbied furiously against it. They even hired a lobbying firm ... to reverse the conclusion ..." (Canadian oral
statement, second substantive meeting, p.33). In response, Australia argues that lobbying activities by the full range
of stakeholders (including overseas governments and other interests) reflect the open and transparent arrangements
pertaining in democratic systems of government and are neithe r implicitly or explicitly proscribed nor discouraged by
WTO provisions. In such circumstances Australia submits that there is no justification for inferences of motives that
lobbying by one particular group influenced or affected the processes leading to the recommendations of the 1996
Final Report.
426 Para. 8.140.
427 OIE Code, Section 1.1, Definitions, p.7, emphasis on defined terms omitted. Part 3 of the OIE Code
dealing with "Other Significant Diseases", further states that "the list of notifiable diseases of aquatic animals includes
only major diseases of proven aetiology and limited geographic range", p. 109.
428 EHN has not been reported to occur in Canadian salmon either. Australia pointed out, at the interim
review stage, that EHN is not considered to be exotic in New South Wales and South Australia.

are not comparable to those arising from the in troduction of exotic disease agents such as IHNV. 429
Yet, we see no benefit in trying to compare the ri sk arising from EHN as opposed to that arising from
the diseases of concern to Australia with respect to the salmon products further examined, nor to
compare the different measures imposed by Australia to deal with these risks. We note, however, that
the other reasons provided by Australia to justify the absence of any internal restrictions on the
movement of salmon products, in particular from Vict oria to other parts of Australia (no significant
trade of fresh salmon into Tasmania from mainland Australia and minimal consequences related to the
introduction of salmon diseases in Western Australia where little salmon culture is conducted,
Queensland where only a small salmon population exis ts in isolated mountain areas or the Northern
Territory where no salmon is present) would seem to be equally valid in support of allowing imports
of salmon products into specific parts of Australia.430
8.157 Moreover, when we asked Australia, more generally, whether it has sanitary measures to
prevent the spread of, or detect and monitor, fish diseases within Australian borders which are equally
stringent as those imposed to protect Australian fish populations against imports, Australia recognized
that "aquatic animal disease control within Australia is in its infancy compared to its terrestrial
counterpart, as in other countries", but that it had b een "identified as a major national priority as
demonstrated by the recent [1997] Government resp onse to the National Task Force on Imported Fish
and Fish Products Report".431 However, the stringent restrictions on imports of salmon products were
first imposed more than 20 years ago.
8.158 We consider that the elements outlined unde r this third additional factor, though probably not
conclusive as such, can also be taken into account, cumulatively with other factors, in our decision on
whether the measure at issue results in "a disguised restriction on international trade".
8.159 On the basis of all "warning signals" and f actors outlined above, considered cumulatively, we
consider that Canada has raised a presumption (i.e., established a prima facie case) that the
distinctions in levels of protection imposed by Australia for, on the one hand, the salmon products
further examined and, on the other hand, herring in whole, frozen form for use as bait and live
ornamental finfish, in its application - i.e., by means of the measure at issue which implements the
level of protection for the salmon products further ex amined - results in "a disguised restriction on
international trade", in the sense of the third element of Article 5.5. We consider that Australia, in
turn, has not provided sufficient evid ence to rebut that presumption. We thus find that, to that extent,
the third element under Article 5.5 is fulfilled.
 (iv) Summary
8.160 We have found above:
(1) that Australia imposes different appr opriate levels of sanitary protection in
several "different situations", namely with respect to all four comparisons set

429 See, however, Winton, Transcript, paras. 208-211, on EHN, stating (at para. 209) that it is part of a "pool
of strains of very closely related viruses which can have devastating effects for which there is a limited geographic
distribution but a fairly wide species distribution". EHN does not occur on the list of 24 diseases of concern to
Australia with respect to salmon products, according to Australia, because it is not exotic and it does not occur in
North America.
430 We note that in this respect Article 6 of the SPS Agreement provides: "Members shall ensure that their
sanitary ... measures are adapted to the sanitary ... characteristics of the area - whether all of a country, part of a
country, or all or parts of several countries - ... to which the product is destined. In assessing the sanitary or
phytosanitary characteristics of a region, Members shall take into account, inter alia , the level of prevalence of
specific diseases or pests, the existence of eradication or contro l programmes, and appropriate criteria or guidelines
which may be developed by the relevant international organizations".
431 Australia's answer to additional Panel Question 12 of 8 December 1997, answers, p.10, referring to:
Australian Quarantine - A Shared Responsibility, The G overnment Response, Minister for Primary Industries and
Energy, August, 1997.

out in paragraph 8.113 (the salmon produc ts at issue from adult, wild, ocean-
caught Pacific salmon compared to other products);
(2) that these levels of protection exhibit differences which are "arbitrary or
unjustifiable" in so far as they relate to, on the one hand, the salmon products
at issue from adult, wild, ocean-caught Pacific salmon and, on the other hand,
herring in whole, frozen form for use as bait and live ornamental finfish; and
(3) that these differences between the tr eatment provided to, on the one hand, the
salmon products at issue from adult, wild, ocean-caught Pacific salmon and,
on the other hand, herring in whole, frozen form for use as bait and live
ornamental finfish result, by means of the measure at issue, in "discrimination
or a disguised restriction on international trade".
Since all three elements of Article 5.5 are present in this case, we find that Australia, by maintaining
the measure at issue, acts inconsistently with its obligations under Article 5.5. Given our earlier
finding - that a violation of the more specific Article 5.5 can be presumed to imply a violation of the
more general Article 2.3
432 - we find that Australia, to that extent, also acts inconsistently with
Article 2.3.
 5. Canada's claims under Article 5.6: Me asures not more trade restrictive than
required to achieve the appropriate level of protection
8.161 In the alternative, Canada submits that -- in the event we were to find that no distinctions are
made by Australia in its levels of protection or that any such distinctions are not arbitrary or
unjustified - the measure at issue is nevertheless more trade restrictive than required to achieve
Australia's appropriate level of protection with respect to the salmon products further examined,
contrary to Article 5.6.
8.162 Canada argues that Australia has breached its obligations under Article 5.6 in two respects.
First, Canada submits that Aust ralia's sanitary measures for non-sal monids (in particular the four
categories of fish or fish pr oducts examined under Article 5.5 433 are significantly less trade restrictive
than those imposed for the salmon products further examined and this even though the risks posed by
these non-salmonids are equal to or greater than those presented by the salmon products further
examined. For Canada, there is no technical or economic reason why similar measures to those
currently imposed for these non-salmonids could not reasonably be extended to the salmon products
further examined. Second, Canada argues that, ev en if there were a plausible explanation for
Australia maintaining far more trade restrictive me asures in respect of salmon than in respect of non-
salmonids, the current measure imposed for the salm on products further examined (an import ban) is
the most trade restrictive measure available to Aust ralia. Canada further submits that, as Australia's
own risk assessment (the 1996 Final Report) concedes that the levels of risk presented by the five
options it considered (including the option fina lly selected, namely heat treatment) cannot be
distinguished, each of these options must, therefore, logically achieve Australia's appropriate level of
protection, i.e., the level of protection currently ac hieved by the measure in dispute. For Canada,
there is, for example, no difference in the level of risk between the current restriction (imposing heat
treatment without having assessed its effectiveness) and evisceration, the standard suggested by the
OIE. Since all four alternative options are far less trade restrictive than the sanitary measure currently
imposed (an import ban), Canada concludes that Australia breaches its obligations under Article 5.6.
8.163 According to Australia, the measure at issue has been dete rmined, through a risk assessment,
to be necessary to achieve its appropriate level of protection. Australia submits that the risk

432 Para. 8.109.
433 Para. 8.113 and Annex 1.

assessment established that there was no other measu re reasonably available to Australia, considering
the risks posed by the salmon products further examined and taking into account technical and
economic feasibility, that would achieve the appr opriate level of protec tion and which would be
significantly less restrictive to trade. Australia submits that Canada has not come forward with
directly relevant scientific evidence that might wa rrant an alternative conclusion. Australia argues
that the different options set out in the 1996 Final Report provide a continuum of risk and that each of
these options would achieve a distinct level of prot ection. Australia submits that it has documented
the different options considered and reached the co nclusion that while different options might reduce
risk, they would not reduce the risk to a level suffi cient to achieve Australia 's appropriate level of
protection. According to Australia, Canada's claim that the current heat-treatment requirements have
not been sufficiently assessed or that Australia opted for the most trade-restrictive measure available,
does not constitute evidence that a significantly less tr ade restrictive measure is available that would
achieve Australia's level of protection. Australia argues, moreover, that it has not taken the most
trade-restrictive measure possible for salmon sin ce significant quantities of heat-treated salmon can
enter Australia. According to Australia, Canada has not addressed issues associated with economic or
technical feasibility of different options. With respect to its measures imposed on non-salmonids,
Australia argues that the fact that some of these other situations involve a disease agent which is the
same as one of the 24 disease agents potentially present in the salmon products further examined, does
not make these other situations comparable to th at of these salmon products. Australia further
submits that if conformity with Article 5.6 require d Australia to adopt the same sanitary measures for
non-salmonids as it imposes for the salmon products further examined, Australia would then
arbitrarily restrict trade - and risk breaching its obligations under the SPS Agreement - since no risk
assessments for these other products have as yet be en conducted. Australia argues that, because no
such risk assessments have been made, it is not in a position to determine whether the measure
currently applied to the salmon products further ex amined would achieve the appropriate level of
protection for these other non-salmonid products.
8.164 Article 5.6 reads as follows:
"Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary
or phytosanitary measures to achieve the appr opriate level of sanitary or phytosanitary
protection, Members shall ensure that such me asures are not more trade-restrictive than
required to achieve their appropriate level of sanitary or phytosanitary protection, taking
into account technical and economic feasibility".
A footnote to Article 5.6 states the following:
"For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than
required unless there is another measure, reasonably available taking into account
technical and economic feasibility, that achieve s the appropriate level of sanitary or
phytosanitary protection and is significantly less restrictive to trade".
8.165 Article 5.6 must be read in context. As noted earlier
434, an important part of the context of
Article 5 is Article 2. We consider that Article 5.6 should, in particular, be read in light of Article 2.2,
which provides in relevant part:
"Members shall ensure that any sanitary ... measure is applied only to the extent
necessary to protect ... animal ... life or health". (underlining added)

434 Para. 8.103.

Given that we already found earlier that the measur e in dispute is inconsistent with Article 2.2 435, we
shall not further address the legal relationship between Articles 5.6 and 2.2.
8.166 We recall that our examination of this disput e under Article 5.6 is limited in scope to those
salmon products at issue from adult, wild, ocean- caught Pacific salmon which we have defined as the
salmon products further examined.436
8.167 In this dispute, Article 5.6 requires that the measure at issue ( in casu, QP86A as implemented
or confirmed by the 1988 Conditions, the 1996 Requir ements and the 1996 Decision and this in so far
as it prohibits the importation into Australia of fresh , chilled or frozen salmon, in particular to the
extent it - in effect and from a sanitary persp ective - imposes certain heat treatment requirements437 is
"not more trade-restrictive than required to achie ve [Australia's] appropriate level of sanitary ...
protection, taking into account technical and econom ic feasibility". According to the footnote to
Article 5.6, the measure at issue shall be considered to be "more trade-restrictive than required" if
there is another sanitary measure which:
 (1) is "reasonably available taking into account technical and economic feasibility";
 (2) "achieves [Australia's] appropriate level of sanitary ... protection"; and
 (3) is "significantly less restrictive to tr ade" than the sanitary measure contested.
We consider that these three elements are cumulati ve in nature. Only when Canada has raised a
presumption (i.e., established a prima facie case), not sufficiently rebutted by Australia, that all three
elements are present, can the measure at issue be found to be inconsistent with Article 5.6.
8.168 In examining the three elements under Ar ticle 5.6, we recall that the 1996 Final Report
(Section 1.5.4) identifies five potential quarantine policy options:
"The quarantine policy options, in no particular order of merit, are as follows:
1. Permit the importation of product effec tively heat treated for pathogens of
concern
 - product might be heat treated prior to export, or
 - heat treated on arrival prior to general distribution
2. Implement the recommendations of the BRS report “Aquatic Animal
Quarantine in Australia: Report of th e Scientific Working Party on Aquatic
Animal Quarantine” in part or in full [allowing imports of salmon but, inter
alia, with certain certification and inspection requirements and only as
eviscerated, filleted flesh] .
 3. Permit the importation of retail-read y fillets, for distribution in raw form
under specified conditions.
 4. Implement the recommendations of AQIS’s draft IRA, that is, permit the
importation of headless, gilled, eviscerated product under specified
conditions.
 5. Permit importation of product that complies with current international
standards for trade in salmon product for human consumption, that is, OIE
recommends that product be eviscerated and that no other risk reduction
measures need be taken".
438

435 Para. 8.99.
436 Para. 8.60.
437 Paras. 8.19 and 8.95 ff.
438 1996 Final Report, p.62. These options are set out in more detail in pp.63-65 of the 1996 Final Report.

The 1996 Final Report then concludes that an unaccep table risk persists for imports of the salmon
products it examined. However, in order to reduc e this risk to an acceptable level the conclusion it
then reaches is that the measure in place should be maintained:
"On the basis of the large number of disease agents in question; the many unknowns
about them; the impossibility of detecting cove rtly infected animals at inspection; the
multiple, complex pathways through whic h imported product could enter Australian
waterways; the presence of potential host species in Australian waterways; the
possibility of diseases establishing in Australia; the substantial economic impacts that
could result to the salmonid aquaculture industry from disease establishment; the
potential loss of amenity and economic impa ct on recreational fishing and associated
business; the potential environmental im pacts on listed endangered and vulnerable
species; and the ineradicability of disease, it is recommended that the present quarantine
policies for uncooked salmon products remain in place".439 (underlining added)
By recommending that the measure in place for uncooked products be ma intained, the 1996 Final
Report, in effect, confirmed the measure at issu e to the extent it imposes certain heat treatment
requirements.440
8.169 Canada refers to the four other options provided in the 1996 Fi nal Report as valid alternatives
under Article 5.6. It advocates, in particular, evisceration (i.e., the fifth option outlined in the 1996
Final Report).
8.170 We next examine whether any of these altern atives meets each of the three elements required
under Article 5.6.
(a) an alternative measure "reasonably available taking into account
technical and economic feasibility"
8.171 The first element of Article 5.6 requires that the alternative measure be "reasonably available
taking into account technical and economic feasibility ". We note that all four alternative options
outlined above were presented in the 1996 Final Report itself as options which merit consideration
and this in contrast to two other options - rem oval of all quarantine restrictions and banning the
importation of all salmon products - which were thought of as options which could not "reasonably be
considered as appropriate, having regard to associ ated quarantine risks" and were therefore "not
discussed further".
441 In our view, this implies that the 1996 Final Report put forward the four
alternatives we examine as technically and economi cally feasible policy options. Nothing in the 1996
Final Report - nor any other evidence before us - im plies that any of these four alternatives would be
technically or economically unfeasible. We thus c onsider that Canada has raised a presumption that
the four alternative options outlined in the 1996 Final Report are "reasonabl y available taking into
account technical and economic feasibility". Australia has not come forward with any argument or
evidence to rebut that presumption. We find, theref ore, that in the present dispute the first element
under Article 5.6 is fulfilled.
(b) an alternative measure which "achiev es [Australia's] appropriate level of
sanitary ... protection"
8.172 We next address the second element of Article 5.6. The alternative measure needs to achieve
Australia's appropriate level of sanitary protectio n. We fully agree with Australia that the
determination of its level of sanitary protection is a decision to be made by Australia, not by any other

439 Ibid., p.70.
440 At the interim review meeting, Australia confirmed that the heat treatment requirements currently
imposed are - in the interim and until further risk assessments are carried out - those contained in the 1988 Conditions.
441 1996 Final Report, p.62.

WTO Member or international organization. The SPS Agreement (in paragraph 5 of Annex A)
defines this level as the level of protection " deemed appropriate by the Member establishing a
sanitary ... measure", in casu, the level deemed appropriate by Au stralia. However, this decision on
what level of protection is appropriate has to co mply with the SPS Agreement (e.g., Articles 5.4 and
5.5). The same applies to Austra lia's decision as to which sanitary measure will achieve Australia's
level of protection. It is for Australia to decide on this, but, again, in so doing it has to act consistently
with the SPS Agreement, in particular Articles 2, 5.1 to 5.3 and 5.6. Our examination under
Article 5.6 is not aimed at a de novo review of what sanitary measure Australia should have chosen to
achieve its appropriate level of protection. On the other hand, we cannot completely defer this
decision to Australia and thus not give effect to Article 5.6. Our mandate under Article 11 of the DSU
requires us to "make an objective assessment of the matter before [us], including an objective
assessment of the facts of the case".442
8.173 In order to decide whether any of the alte rnative measures meet Australia's appropriate level
of protection for the salmon products further examin ed, we first have to examine more closely what
that level of protection is. 443 In this respect, we recall our earlier consideration that the level of
protection implied or reflected in a sanitary measure or regime imposed by a WTO Member can be
presumed to be at least as high as the level of protection considered to be appropriate by that
Member. In this dispute, the level of protection im plied in the measure currently imposed - in effect
and from a sanitary perspective certain heat treatm ent requirements - can thus be presumed to be at
least as high as Australia's appropriate level of protection for the salmon products further examined.444
To determine whether any of the alternative measures meet Australia's appropriate level of protection,
we should thus examine whether these alternatives m eet the level of protection currently achieved by
the measure at issue.
8.174 After summing up the five available options, the 1996 Final Report states the following:
"These options and derived variations represen t a continuum of the estimated levels of
quarantine risk. Option 5 represents the higher end and option 1 the lower end of the risk
continuum; the other options lie between. Th e difference in level of risk between each
option is incremental and cannot be quantified".445 (underlining added)
In the conclusion to Section 1 of the 1996 Final Report (Section 1.6), the five options are repeated and
a similar general assessment is made:
"These options provide for varying levels of risk which cannot be quantified. Heat
treatment (Option 1) provides the highest leve l of security; the international standard of
evisceration only (Option 5) provides for the lowest level of security". 446 (underlining
added)
"The risk of disease entry and establishment that would follow adoption of Options 1 to 4
appears to be small based on the known epid emiology of the disease agents and past
experience. However, there is a degree of un certainty attached to this judgement of the
level of risk because of gaps in and inherent shortcomings of the available data.

442 Appellate Body Report on EC - Hormones, op. cit., paras. 110-119, in particular para. 117.
443 We noted earlier that we saw no need to clearly defi ne or quantify this level (para. 8.107). We recall,
however, Australia's statement that its level of protection with respect to the salmon products further examined is high
or "very conservative" and aimed at reducing risk to "ver y low levels", "while not based on a zero risk approach"
(Ibid.). We also recall that QP86A itself provides that salmon products may enter Australia only if they have been
subject to "such treatment as in the opinion of the Director of Quarantine is likely to prevent the introduction of any
infectious or contagious disease" (emphasis added, para. 8.10).
444 Para. 8.107.
445 1996 Final Report, pp.62-65, at p.62.
446 Ibid., p.69.

It is extremely difficult to distinguish a nd describe the level of risk that each option
presents from the continuum of risk that are covered by these options. For Options 1, 2, 3
and 4, this is particularly so and it is hard to determine if any of the suggested quarantine
requirements, which are additional to tho se identified in Option 4, would have a
substantial impact on the overall risk".447 (underlining added)
8.175 The measure currently in place imposes, in e ffect, certain heat-treatment requirements defined
in the 1988 Conditions. Heat treatment is referred to more generally in Option 1. At the interim
review stage, Australia submitted that Option 1 is not the same as the 1988 Conditions in that the level
of protection in Option 1 is higher than that ach ieved by the 1988 Conditio ns because Option 1 calls
for inactivation of the disease agents, a result not required in the 1988 Conditions. 448 Since Option 1
was never formally recommended by the 1996 Final Re port and, therefore, not further defined, we
have no evidence on which to decide whether Option 1 is the same as the 1988 Conditions. We recall,
however, that to determine whether any of the alte rnative measures meet Australia's appropriate level
of protection, we should examine whether these alte rnatives meet the level of protection currently
achieved by the measure in place (in effect, the h eat treatment requirements in the 1988 Conditions)
and - in the event Option 1 is different from the measure in place - not that reflected in Option 1. 449
Since, according to Australia, the level of protection achieved by the measure in place is lower than
that reflected in Option 1, if we were to find ev idence that alternative options can be presumed to
meet the level of protection reflected in Option 1, these alternatives can a fortiori be presumed to
achieve the lower level of protection currently achieved by the measure in place.
8.176 According to the 1996 Final Report, Op tion 2 (adopting the 1995 BRS Report's conclusions)
is likely to represent the option with a degree of risk most similar to that achieved under Option 1. 450
We shall, therefore, focus our attention on Option 2 and examine, in particular, whether that option
would also achieve the level of protection currently achieved by the measure at issue. Four factors
lead us to conclude that there are alternatives to the measure currently in place which would meet
Australia's appropriate level of protection, i.e., meet the level of protection achieved today by the
measure in dispute.
8.177 First, Australia itself, in the 1996 Final Repor t, acknowledges that "[t]he risk of disease entry
and establishment that would follow adoption of Options 1 to 4 appears to be small". 451 The 1996
Final Report goes even further and states that "it is hard to determine if any of the suggested
quarantine requirements, which are additional to those identified in Option 4, would have a substantial
impact on the overall risk". According to Australia it self there is, therefore, only a minimal, if any,
difference in the level of sanitary protection linked to the alternative Options 2 to 4 and that reflected
in Option 1 - and thus a fortiori452 than that achieved by the measure at issue.
8.178 Second, on several occasions the 1996 Final Re port states that "[h]eat- treatment (Option 1)
provides the highest level of security". 453 However, as we found earlier 454, neither the 1996 Final
Report, nor any other study before us, establishes that heat treatment actually reduces risk to the
greatest extent. The 1996 Final Report does not even address heat treatment as a risk reduction factor
for 13 of the 24 diseases of concern. According to the 1996 Final Report and other studies and expert

447 Ibid., p.70. For similar statements see Section 4 of the 1996 Final Report ("A Response to Key Issues
Raised in Submissions to the Revised Draft Import Risk Analysis"), pp.325, 327 and 385.
448 However, answering a question from the Panel at the interim review meeting, Australia stated that of the
options set out in the 1996 Final Report, Option 1 comes closest to the measure currently in place.
449 Para. 8.173.
450 1996 Final Report, at p.62: "Option 5 represents the higher end and option 1 the lower end of the risk
continuum; the other options lie between".
451 Ibid., p.70.
452 Para. 8.175 in fine.
453 Ibid., p.69, also pp.62 and 70.
454 Para. 8.99.

opinions we received, some disease agents are known to survive heat treatment or even grow when
heat treatment is limited to th e lower temperatures currently allowed under the 1988 Conditions; and
for some disease agents freezing seems to re duce risk to the same extent as heating. 455 Australia's
main reason in the 1996 Final Report to not accept the "small" risk related to Options 2 to 4 456,
namely that "there is a degree of uncertainty attached to this judgement of the level of risk because of
gaps in and inherent shortcomings of the available data", seems, therefore, to apply more to heat
treatment (Option 1) than to any of the other opti ons. Indeed, all risk reduction factors proposed by,
for example, the 1995 BRS Report (Option 2) have been examined; not only in the 1995 BRS Report
itself, but most of them, if not all, also in the 1995 Draft Report (Option 4). Both the 1995 BRS
Report and the 1995 Draft Report, on the basis of an extensive examination of data, conclude that
imports of the salmon products further examined un der specified conditions represent negligible risk
and should be allowed. Both reports also questi on the rational basis of th e current heat-treatment
requirements.457 In our view, the above elements suggest (1) that the level of protection currently
achieved by the heat-treatment requirement (which has, as we found earlier, not been "based on" a
risk assessment458 is unclear and possibly not as high or conservative as Australia submits and (2) that,
therefore, the level of protection which would be met, in particular, by Option 2 (the 1995 BRS
Report recommendations), according to the 1996 Final Report posing risk most similar to the measure
currently imposed, and Option 4 (the 1995 Draf t Report recommendations), both Options having
based their recommendations on a thorough scientific an alysis, would also achieve Australia's current
level of protection (reached by the heat-treatment requirement imposed) and might even exceed it.
8.179 Third, we recall that Australia confirmed th at its level of protection for the salmon products
further examined remained unchanged between the 1995 Draft Report (recommending that imports of
these salmon products be allowed) and the 1996 Final Report (suggesting maintenance of the
prohibition). We further recall that Australia has not convinced us of the reasons why this rather
substantial change in conclusions reached by these reports occurred. 459 We recall, in particular, that
the experts advising the Panel unanimously stated that no relevant new scientific evidence occurred
between the two reports which could explain the reversal. 460 If this is true, there would seem to be no
reason (i.e., no new scientific evidence) why the recommendations of the 1995 Draft Report
(Option 4) would no longer meet Australia's (unchange d) level of protection. On this ground, there
would, a fortiori, be no reason w hy Option 2, according to Australia the most stringent alternative,
would not achieve Australia's level of protection.
8.180 Fourth, with respect to what Australia id entifies as the most liberal option, i.e., Option 5
which would "[p]ermit importation of product that complies with cu rrent international standards",
namely evisceration, the OIE expert advising the Panel stated the following:
"The FDC [Fish Diseases Commission of the OIE] considered this point carefully and is
unanimous in the opinion that evisceration of fin fish (e.g. salmonids in this case)
provides a very high level of safety against transmission of disease and that none of the
notifiable or other significant diseases are likely to be transported with such products.

455 Para. 8.98.
456 1996 Final Report, p.70.
457 Para. 8.98.
458 Para. 8.99.
459 Para. 8.154.
460 Transcript, paras. 298-303.

Thus the FDC has judged that eviscerated products fall outside the concern of the
FDC".461 (underlining added)
"The differing health conditions in vari ous member countries (both exporting and
importing) are a concern; however, it is impractical to have different recommendations
for each country. This is why the FDC has tr ied to set minimum standards that can be
applied worldwide but encouraged countries to engage in bilatera l negotiations where
there are differences of opinion regarding quality of fish health services, presence of
other pathogens of concern, etc. This flex ibility, however, extends only to live fish, live
gametes, and uneviscerated fish. As stated above, the FDC currently regards eviscerated
fish to represent a minimal risk that does not warrant restriction of trade".462
Given the repeated reference made in the SPS Agreem ent to the relevant inte rnational organizations,
in this dispute the OIE, and the recommendations they produce (e.g., Articles 3.1 and 5.1) 463, as well
as to the more general objective of harmonization (e.g., Articles 3.4 and the sixth preamble), we
consider that appropriate weight should be given to this opinion on Option 5.464 However, in so doing
we do not endorse evisceration as a measure which woul d meet Australia's level of protection nor do
we disregard the evidence before us in regard to the relative effectiveness of evisceration, depending
on the disease concerned and the tissues in which it can be found. 465 Since Option 2 is, according to
Australia, still more risk-reducing than Option 5, this opinion a fortiori applies to support the
contention that Option 2 could, indeed, be said to meet the level of protection actually met by the
measure in force.
8.181 On the basis of all four factors outlined a bove, considered cumulatively, we consider that
Canada has raised a presumption that there are other measures available, in particular Option 2 set out
in the 1996 Final Report, which would "achieve [Australia's] appropriate level of sanitary ...
protection" in the sense of the second element under Article 5.6 and that Australia has not provided
sufficient evidence to rebut that presumption. We find, therefore, that in the present dispute the
second element under Article 5.6 is fulfilled. We make this finding on the basis of the evidence
before us which, in our view, constitutes a presump tion - which has not been rebutted - that there are
alternative measures available which would meet Au stralia's appropriate level of protection. Our
finding does, therefore, not endorse any of the alternative options we examined. It does not imply that
Option 2 would actually achieve Australia's appropr iate level of protection nor does it imply that
Option 2 would be the only option which could achieve that level.

461 Winton's answer to Panel Question 24, Winton, answer s, p.3. See also Winton, Transcript, paras. 100-
101, 305, 326 and 43 ("The OIE Fish Diseases Commission has not considered eviscerated fish to represent a
significant risk. But I agree with Dr. Rodgers that probably there is no trade that has zero risk ... in our view, as a
series of experts and based on our evaluation of the scientific literature, we do not find scientific evidence that such
eviscerated products have constituted a risk in the past. Should such scientific data be forthcoming, we would perhaps
modify the types of products or the types of diseases and it is a very dynamic process, and we probably will never get
it completely right").
462 Winton's answer to Panel Question 25, Winton, answers, p.3.
463 Paras. 8.44 ff. and 8.49.
464 Another expert advising the Panel expressed a similar opinion on the effectiveness of evisceration:
Rodgers, Transcript, para. 21: "The question of evisceration is also relevant here obviously. I think that we are all in
agreement generally that it is an effective means of reducing the level of risk although the level of reduction would
largely depend on tissue location of the disease-causing ag ent and the effectiveness of the evisceration process.
Nevertheless, we do not know of any specific cases where fish diseases have been transmitted from one area to
another by imported eviscerated salmonids, or in fact other eviscerated fish, any other species of eviscerated fish".
465 In this respect, we refer to the general agreement among parties and experts advising the Panel on this
issue that some eviscerated product might still contain some of the disease agents of concer n, e.g., in muscle, remnant
kidney tissue, bone, skin or blood (see, e.g., Transcript, paras. 21, 90, 99-101, 203-204, 234 and 305-307).

(c) an alternative measure which is "significantly less restrictive to trade"
than the sanitary measure contested
8.182 We finally address the third element under Artic le 5.6: the alternative measure needs to be
"significantly less restrictive to trade" than the measure contested. Canada argues that all four
alternative options set out in the 1996 Final Report are significantly less trade restrictive. In its
request for access to the Australian market, Canada examined in particular headless, eviscerated
product and advocated that these pr oducts could be safely imported. 466 We recall that the measure
imposed by Australia (in effect, certain heat treatment requirements) prohibits the importation into
Australia of fresh, chilled or frozen salmon, including the salmon products further examined. 467 All
four alternative options outlined above would allow imports of the salmon products further examined,
albeit under specific conditions (e.g., the salmon pr oducts would have to be retail-ready fillets,
eviscerated, headless or gilled, etc...). We consider that even imposing the most stringent of these
specific conditions would still be significantly less restrictive to trade than an outright prohibition. As
opposed to any of the other conditions, heat treatment actually changes the nature of the product and
limits its use. Heat-treated salmon can obviously no longer be consumed as fresh salmon.
Eviscerated, headless or filleted salmon, on the othe r hand, can either be consumed as fresh salmon or
cooked salmon. 468 We consider, therefore, that Canada has raised a presumption that all four
alternatives outlined in the 1996 Final Report are "si gnificantly less restrictive to trade" than the
measure in dispute and that Australia has not rebut ted this presumption. We thus find that in the
present dispute the third element under Article 5.6 is fulfilled.
(d) Summary
8.183 We have found above that a ll three elements required in Article 5.6 in order to find a violation
of Article 5.6 are present in this dispute. We t hus find that Australia by maintaining the measure at
issue acts inconsistently with Article 5.6.
 6. Canada's claims under Articles 2 and 3: "Basic Rights and Obligations" and
"Harmonization"
8.184 Since we have found that the measure in di spute is inconsistent with the requirements of
Articles 5.1, 5.5 and 5.6 and is, on that ground, also inconsistent with the requirements of Articles 2.2
and 2.3, we see no need to further examine Canada's other claims under Article 2 nor its claims under
Article 3.
E. ARTICLE XI OF GATT 1994
8.185 Since we have found that the measure in disp ute is inconsistent with the requirements of the
SPS Agreement, we see no need to fu rther examine whether it is also in consistent with Article XI of
GATT 1994.

466 1996 Final Report, p.7.
467 Para. 8.19.
468 Out of a total of 66,234 tonnes of Canadian salmon exports in 1996, 50,838 tonnes were fresh and frozen
salmon; the rest was canned salmon. As opposed to canned or heat-treated salmon, Canada submits that "recent trends
indicate consumer preference for fresh and frozen salmon" (Canada, First Submission, para. 31). Australia seems to
recognize this when it states that: "For [Australian] farmed Atlantic salmon [the main salmon species commercialized
in Australia] supply to both the domestic and export market is predominantly of whole fresh fish" (Australia, Second
Submission, para. 58).

IX. CONCLUSIONS
9.1 In light of the findings above, we reach the following conclusions:
(i) Australia, by maintaining a sanitary measur e which is not based on a risk assessment,
has acted (both in so far as the measure appli es to salmon products at issue from adult, wild,
ocean-caught Pacific salmon and the other cate gories of salmon products in dispute),
inconsistently with the requirements contai ned in Article 5.1 of the Agreement on the
Application of Sanitary and Phytosanitary Measures and, on that ground, has also acted
inconsistently with the requirements contained in Article 2.2 of that Agreement;
(ii) Australia, by adopting arbitrar y or unjustifiable distinctions in the levels of sanitary
protection it considers to be appropriate in di fferent situations (on the one hand, the salmon
products at issue from adult, wild, ocean-caught Pacific salmon and, on the other hand, whole,
frozen herring for use as bait and live ornamental finfish), which result in discrimination or a
disguised restriction on international trade, has acted inconsistently with the requirements
contained in Article 5.5 of the Agreement on the Application of Sanitary and Phytosanitary
Measures and, on that ground, has also acted in consistently with the requirements contained
in Article 2.3 of that Agreement;
(iii) Australia, by maintaining a sanitary me asure (with respect to those salmon products
at issue from adult, wild, ocean-caught Pacific salmon) which is more trade-restrictive than
required to achieve its appropriate level of sanitary protection, has acted inconsistently with
the requirements contained in Article 5.6 of the Agreement on the Application of Sanitary and
Phytosanitary Measures.
Since Article 3.8 of the DSU provides that "[i] n cases where there is an infringement of the
obligations assumed under a covered agre ement, the action is considered prima facie to constitute a
case of nullification or impairment", we conclude that to the extent Australia has acted inconsistently
with the SPS Agreement it has nullified or impair ed the benefits accruing to Canada under the SPS
Agreement.
9.2 We recommend that the Dispute Settlement Body requ est Australia to bring its measure in
dispute into conformity with its obligations unde r the Agreement on the Application of Sanitary and
Phytosanitary Measures.

ANNEX 1
The Four Comparisons Under Article 5.5

COMPARISON 1 Disease of concern

Disease occurence469 Treatment of imports
Canadian adult, wild,
ocean-caught Pacific
salmon, for human
consumption

This disease agent has not
been detected in Canadian
adult, wild, ocean-caught
Pacific salmon470
banned
Pacific herring, Cod,
Haddock, Japanese eel,
Plaice, for human
consumption
Aeromonas salmonicida
(atypical strain)
This disease agent has been
detected in uncooked:471
Pacific herring
Cod
Haddock
Japanese eel
Plaice

allowed access
allowed access
allowed access
allowed access
allowed access

469 When addressing "disease occurrence" in this Annex, we focus on whether or not the specific disease
agent has been detected in the product concerned. We realize that doing so we simplify the comparison and that a
better comparison could be made if more data was available. However, according to our mandate, we have to make
an objective assessment of the evidence put before us (Article 11 of the DSU). Our approach should, therefore, not be
read to imply that risk assessments should be limited to diseases that have actually been detected nor that they cannot
take into account evidence related to scientific research.
470 Final Report, p.136; Canadian answer to original Panel Question 2, p.4.
471 Final Report, p.138 (wide statement); Australian answ er to original Panel Question 3, p.6 (for eel);
Australian answer to additional Panel Question 3 of 8 December 1997, p.6 (for all fish products compared).

ANNEX 1 (cont'd)
The Four Comparisons Under Article 5.5

COMPARISON 2 Diseases of concern

Disease occurrence Treatment of imports
Canadian adult, wild,
ocean-caught Pacific
salmon, for human
consumption

These disease agents have not
been detected in Canadian
adult, wild, ocean-caught
Pacific salmon472
banned
Pacific herring,
Atlantic and Pacific
cod, Haddock,
European and Japanese
eel and Dover sole, for
human consumption
Viral haemorrhagic
septicaemia virus (VHSV)
Infectious pancreatic necrosis
virus (IPNV)
VHSV has been detected in
uncooked:473
Pacific herring
Atlantic cod
Pacific cod
Haddock
European eel

allowed access
allowed access
allowed access
allowed access
allowed access
 IPNV has been detected in
uncooked: 474
Cod
European and Japanese eel
Dover sole

allowed access
allowed access
allowed access

472 For VHSV, Final Report, p.45; for IPNV, Final Report, pp.44 and 197; Australia agrees with this in its
answer to original Panel Question 2, pp.4-5.
473 For Pacific herring: Winton, Transcript, para. 236; For Pacific cod and Pacific herring: Final Report,
pp.45 and 222; For Pacific cod and herring in general: Australian answer to original Panel question 3, p.7; For
Atlantic cod and Haddock: Australian answer to Panel Question 20 put forward at the meeting with experts advising
the Panel; For eel: Australian answer to additional Panel question 3 of 8 December 1997, p.6.
474 For cod, sole and eel: Australian answer to additional Panel Question 3 of 8 December 1997, p.6.

ANNEX 1 (cont'd)
The Four Comparisons Under Article 5.5

COMPARISON 3

Diseases of concern Disease occurrence Treatment of imports
Canadian adult, wild,
ocean-caught Pacific
salmon for human
consumption

Aeromonas salmonicida
(atypical strain)

Erythorcytic necrosis virus
Only IHNV has been detected
in Canadian adult, wild,
ocean-caught Pacific
salmon475
banned
Whole, frozen herring
for use as bait
Infectious haematopoietic
necrosis virus (IHNV)

Viral haemorrhagic
septicaemia virus (VHSV)
Pacific herring
476:

All four disease agents have
been detected477

Atlantic herring:

only Erythorcytic necrosis
virus has been detected478

allowed access

COMPARISON 4

Diseases of concern Disease occurrence Treatment of imports
Canadian adult, wild,
ocean-caught Pacific
salmon, for human
consumption

Aeromonas salmonicida
(atypical strain)
Yersinia ruckeri

Edwardsiella tarda

None of these disease agents
has been detected in Canadian
adult, wild, ocean-caught
Pacific salmon
banned Live ornamental finfish

Infectious pancreatic
necrosis virus (IPNV)

Vibrio anguillarum
All five disease agents have
been detected in
Live ornamental finfish479

allowed access

475 According to Canada, IHNV is known to occur in these salmon products (Canadian answer to original
Panel Question 2, p.4). However, according to the 1996 Fi nal Report, at p.43, IHNV has only been recovered once
and this was regarded as "an unusual event".
476 See, in general terms, Winton, Transcript, para. 283, answering the question whether one can say without
having done a full risk assessment that bait fish represent higher risk than salmon products: "I could make that
statement with a high level of certainty for Pacific herring in North America. As bait fish those fish contain a
significantly and quantifiably higher incidence and prevalence of infection than do Pacific salmon".
477 For Aeromonas salmonicida : see Comparison 1, footnote 2; for Erythorcytic necrosis virus: see 1996
Final Report, p.43 and p.182 and Australian answer to orig inal Panel Question 2, p.6; for IHNV: see Australian
answer to Panel Question 20 put forward at the meeting with experts advising the Panel; for VHSV: Australian answer
to original Panel Question 2, p.7, Winton, Transcript, paras. 236 and 267.
478 Table 6 in Canada's First Submission, pp.79-80. According to Winton, Atlantic herring in the Baltic and
North Sea are probably also a major reservoir for VHSV (Transcript, para. 267).
479 Table 7 in Canada's First submission, p.82 and Australian answer to Panel Question 20 put forward at the
meeting with experts advising the Panel. See also Winton, Transcript, para. 267.