Yvonne van Roy, Victoria University Wellington finds cause for concern in the handling of the RCD crisis

It is excellent to have a giant's strength, but tyrannous to use it like a giant. (Measure for Measure: William Shakespeare)

Since Parliament is inevitably ruled by the majority votes of the governing party or coalition, the giant's strength is largely kept in balance through adherence by Government to legal procedures and conventions. This is demanded by the Rule of Law, a constitutional concept described by Joseph (Constitutional and Administrative Law in New Zealand p 167) as "the sentinel of constitutional government". Much has been written about the Rule of Law since Dicey's discussion of the doctrine in 1885. Concepts such as Government according to law, equality before the law and the absence of arbitrary power have been redefined in line with the changes in society, but remain fundamental.

However, of what value is this "sentinel of constitutional government" if a Government makes a Regulation knowing that it is almost certainly procedurally ultra vires and probably also substantively ultra vires? Is it proper for the Government to then use its power in Parliament to pass a Bill which purports retrospectively to validate that Regulation; to make a Regulation which not only has the effect of nullifying a validly made decision of a Government official (of which the Government has no power of review); to reward those who have openly defied that decision: and, in anticipation of a law change, to decline to prosecute or prevent continued defiance of the law?

These issues have all arisen from the Government's response to the illegal importation and release of rabbit calicivirus disease (RCD). An application to import and use RCD for biological control was declined by the Deputy Director-General of MAF after an extensive inquiry under s 2I Animals Act 1967 . Several disappointed farmers took the law into their own hands and spread the virus which had been illegally imported (mostly on baits as a biocide, as the virus did not spread readily by infection), MAF made an initial attempt to confine the spread of the disease, but soon gave up and left the farmers to use the virus how and where they wanted. Some farmers mixed up infected rabbit livers in their kitchen blenders, kept the resulting cocktail in the domestic refrigerator, and proceeded to spray this mixture onto baits which were then air-dropped around areas in the South lsland. While this was going on a MAF Officer and the Minister of Biosecurity announced that, whilst the importation of RCD was illegal, the possession and release of it was not. This prompted some farmers to make boastful confessions on TV and made it very difficult for MAF to take prosecutory action until the Iegal position was clarified. This clarification was then promptly given by the Crown Law Office, who explained that the possession and release of RCD was indeed illegal.

However, no further action was taken to prosecute or prevent the use of RCD. Cabinet then decided to legalise the use of the RCD inoculum currently in New Zealand and announced that it would make a Regulation to bring this about. The Regulation was made under the Biosecurity Act 1993, as all but five sections of the Animals Act had been repealed by s 167 (1) and the Third Schedule of the Biosecurity Act. As the relevant empowering section in that Act required consultation with interested groups and persons before the Regulation could be made, submissions were requested and 84 received from individuals or organisations Notwithstanding this, the Regulation was made in the third working day after submissions closed. However through poor drafting this Regulation does not appear to achieve what it set out to do (ie remove RCD from s 21 Animals Act). At or about the same time, a Bill was placed before Parliament revoking the Regulation but also purporting to validate it retrospectively. In place of the Regulation, it proposes (more effectively this time) to amend the relevant provisions of the Biosecurity Act and to remove RCD from s 21 Animals Act. In the meantime, instead of taking action to prevent the spreading of home brew mixtures, MAF is reported as expecting its main role to be giving advice to farmers on how to mix this brew and use it more effectively. Recipes for this home brew (dubbed "Kitchen whizz smoothies") are openly published - along with cautions for the farmers to wear masks because of the risk of contamination from other micro-organisms such as salmonella. For example, the recipe published in The New Zealand Farmer (2-10) states:

The mixture is as simple as mixing rabbit livers,hearts and lungs with water. Saline solution (9 gms of common salt to each litre of water) is an optional medium Officials say the ratio of water to rabbit is almost academic

Four major concerns arise from the above facts (the biological, medical, ethical and other concerns are best examined in other forums):

. MAF's decision not to enforce the law against all those using the virus;

. the making of a Regulation which nullifies the validly made decision of the Deputy Director-General and re warding those who acted in defiance of that decision;

. hastily making the Regulation without the required consultation, and in the knowledge that its validity was being questioned;

. the introduction of a Bill which purports retrospectively to validate that Regulation (and which will also retrospectively remove RCD from s 21 Animals Act).

Cumulatively this amounts to a determined wielding of power by Government in response to political pressures, but with scant regard for the Rule of Law. This has not been without consequences as it has sent disturbing messages both within New Zealand and to our overseas trading partners.

NON-ENFORCEMENT

MAF has consistently said that it would prosecute the person or persons who imported the RCD virus illegally, but has declined to take any action to prosecute those who possess or use the virus. It would have been inappropriate to prosecute farmers who had confessed to use of the virus after the Ministry incorrectly announced that this was not illegal, and before this announcement was publicly corrected after advice from the Crown Law Office. However this should not have prevented the Ministry from taking action to prevent continued release, and to take full prosecutory action once the law had been clarified.

It is difficult to understand how MAF could ever have believed that possession or release of RCD was legal. A quick perusal of statutes with which MAF should have been familiar would have revealed the fallacy of that contention. To begin with, knowingly possessing RCD was illegal under s 21(4) Animals Act ( which is retained by s I69 and the Third Schedule of the Biosecurity Act in relation to organisms not established in New Zealand). This section would certainly have applied to those who were releasing the virus in an attempt to spread it throughout New Zealand, as it could not be argued that RCD was established in New Zealand at that time.

Actions were possible, and may still be possible, under s 154(f) and (g) Biosecurity Act, which create offences for possession and disposal (by sale or otherwise) of "unauthorised goods". This included RCD because it was an imported good for which no biosecurity clearance had been given.

As RCD is able to be defined as a "pesticide", the Pesticides Act 1979 also applies. "Pesticide" is defined in s 2 as:

any substance or mixture of substances represented by the proprietor as suitable for the eradication or control of any pest, whether by way of modification of behav iour or development or otherwise ... .

"Proprietor" means the manufacturer or importer of the pesticide, and "manufacturer" means an owner who packs the pesticide for sale in or by means of a container This should cover all those who mix up "home brews" of RCD virus mixture for "sale" - which includes disposal by way of gift, loan or otherwise (s 4). Whether it would also cover those who make up the same or similar mixture for their own use is uncertain. Pesticides must not be imported, sold or supplied for reward unless registered (s 21); for example, the RCD Regional Council's plan to use would be covered by the Act. It does not seem possible for "home brews" to obtain registration under the Act, as each brew is different and will contain an unknown amount of other ingredients (including other diseases).

Just as one would expect that dealing in RCD should be recognised in the same way as dealing in 1080 poison (the substitute product), one would also expect there to be some controls over what can and cannot be spread about the countryside or dropped from the air. Section 15 Resource Management Act 1991 makes it a contravention of that Act to discharge any contaminant (which would include RCD) into the air, land or water or onto the land, in a manner that contravenes a rule in a regional plan. Permits to make discharges are granted only after notified public hearings If these sections had not given MAF enough actions to choose from, others such as s 17(3) RMA and ss 14S and 66 Crimes Act 196l are worth considering. Does failure to understand their own legislation, or to get sound legal advice when common sense would indicate that action should be possible, constitute negligence on behalf of MAF?

The Ministry is reported (Dominion 23-9) as stating that although those who spread the virus before the Regulation changes would technically have broken the law, the Ministry considered it impractical to prosecute most of the people involved. It is astounding that the Ministry considered contraventions of all the aforementioned Acts to be only "technical". Also, how would it have been "impractical" to enforce the law when the location and times of some aerial drops have been openly publicised, and when planes and airstrips are licensed?

The real reason for MAF's failure to enforce the law has been provided by the Director-General of Agriculture himself:

In view of Government's decision to amend the Animals Act and, as a consequence, the Biosecurity Act, to make the possession of RCD Illegal, MAF elected not to pursue prosecution of the many persons who possessed RCD material. There was a clear Government policy determination to exploit the existence of RCD, a decision which recognised the impossibility of containment and eradication of RCD. (information obtained under the Official Information Act.)

Two issues arise from this statement. Firstly, even when the possession of RCD is legal, the requirements of Acts such as the Pesticides Act and the RMA continue to apply. Such Acts are designed to prevent what is now occurring - the uncontrolled spreading of substances which contain not only unknown concentrations of deadly haemorrhagic disease, but very probably also contain a number of other contaminants and diseases. Little recognition appears to have been given to cross species exposures, aerosol generation, inoculum effect, secondary contamination and residual contamination. Although MAF has reported (NZ Herald 24 Oct) that interim results from tests of some homebrew mix did not show any new viruses or bacteria, this does not mean that such brews, (each of which is different), do not contain other viruses or bacteria.

Secondly, such a blanket refusal to enforce any of the laws applicable to those who use or deal with RCD cannot be equated with the use of discretion on whether or not to prosecute a particular individual. It could well be seen as suspension of the law, reminiscent of the facts in Fitzgerald v Muldoon [I976) 2 NZLR 615. In that case also the Minister announced by press release that, since the law was to be changed, actions required under the then current legislation would cease forthwith. Wild CJ found that the Minister was purporting to suspend the law without the consent of Parliament in contravention of s 1 Bill of Rights 1688. He quoted Dicey (Law of the Constitution, IOth Edn, p39):

The principle of parliamentary sovereignty ,means neither more nor less than this, namely that Parliament has ... the right to make or unmake any law whatever; and ... no person or body is recognised ... as having a right to override or set aside the legislation of parliament.

This issue has special significance now that MMP makes the outcome in parliament less certain - what if Parliament declined to change the law or to validate the Regulation? Even if MAF's actions cannot be concluded to be a breach of the Iaw as in Fitzgerald v Muldoon, its actions in condoning widespread disregard for the law on the basis of "Government policy" must surely be a breach of the Rule of Law, the consequences of which are discussed at the end of this article.

In practical terms,however, MAF's failure to act has far more serious consequences than the Minister's actions in Fitzgerald v Muldoon. Although farmers have been spreading RCD around the South Island for some time, the disease has only recently begun to spread by infection. It was not inevitable that RCD would spread by infection throughout New Zealand, and an attempt could have been made to prevent this by stopping the use of RCD as a biocide. If MAF had taken action to prevent the spreading of home brews - as good biosecurity management should have mandated-then it is unlikely that there would be any real argument for the Regulation or the Amendment to the Biosecurity Act. The Government would also have been forced to concur with the use of the proper legal procedure, a revisiting of the decision under s 21 of the Animals Act or the Hazardous Substances and New Organisms Act which should come into force next year and replace that section. That would require inquiry into safety and efficacy, and much public debate - and the risk of yet another "no" decision. Does this explain the most incomprehensible obtuseness of MAF in the matter of enforcement?

NULLIFYING A VALID DEClSION

The decision to decline the application to import and release RCD in New Zealand was made after a long process of peer review and public consultation, involving around 800 submissions from farming groups, conservation groups, animal protection groups, scientists (including overseas experts) and others. The three principal reasons given related to uncertainties about the epidemiology and effectiveness of the virus and the inadequacy of the proposed management programme. Risks relating to infection of humans and other species, virus mutation and prey-switching, would have been tolerated if the Deputy Director-General had been satisfied that the benefits argued by the applicant would actually have occurred (The Press 3-7) .

The decision provoked incautious outbursts from some Members of parliament. For example, the Minister of Agriculture was reported as saying that it was the wrong decision, and that he was "extremely disappointed" with it. He also said that "he would do everything in his power to get this rabbit-killing calicivirus disease approved", and that he backed calls for a judicial review (Dominion 3-7,4-7 and 12-7).

After a meeting with the Minister of Agriculture, the applicant appealed to the Director-General of MAF to review the decision of the Deputy Director-General. The Director-General took legal advice from the Solicitor-General and was reported to have said (Evening Post 20-8):

In my view the process was lengthy, even-handed and transparent, and I am satisfied that this enabled the outcome of a credible decision. I can find no evidence to suggest to me that (the Deputy Director-General's) decision was reached as a result of a wrongful analysis or interpretation of the scientific information. His conclusions are consistent with those of the expert reviewers.

It is important to note that decisions made by the Deputy Director-General or the Director-General under s 21(1) of the Animals Act are unable to be reviewed by either Minister. Even if they had that power, they would have been confined to the decision-making criteria set out in the procedure followed by the Deputy Director-General. They could not have used the reasons put forward by the Minister of Biosecurity to justify the Regulation or the Amendment Bill

These reasons were: (1 ) RCD is now widely distributed in New Zealand; (2) It would be desirable to promote responsible, safe and effective use of the virus; and (3) there needs to be a good flow of information and people will not be forthcoming with information if they feel under legal threat. This sort of reasoning- that if people will do it anyway, legalise it so that it can be managed properly, simply does not address the, reasons for the illegality. Also, RCD is not widespread in New Zealand because, as yet, it has not been reported in the North Island. Even if it had been widespread in New Zealand, that is no reason for legalising its use when decision had already been made to decline it. Hopefully the Minister would not have wished to legalise the use of the virus if it had been proved that its host-range was wider than rabbits. The real reason would appear to be that the Minister has disagreed with the risk analysis inherent in the decision of the Deputy Director-General. If he had agreed with that analysis, attempts would have been made to prevent the use of the virus as a biocide.

In addition, it is difficult to see that there can ever be "safe and effective" use of RCD while so little is known about the virus, and so long as MAF continues to allow the use of home brews. Information from those who are using the virus can never be regarded as "reliable", whether the use is legal or not, as there are too many reasons for such persons to keep any adverse findings to themselves.

The real point at issue here is the Government's use of its regulation-making power and, ultimately, its legislation making power to do what the normal procedures in the Act did not enable it to do. That is, to nullify a decision made validly under the Animals Act for reasons quite different from the criteria relevant to that decision, and to provide farmers with the result which they were unable to achieve through the process set our in the Act. Anarchy has proved to be more profitable than adherence to the law.

Although perfectly legal, legislation which reverses a judicial or quasi-judicial decision is a breach of the Rule of Law if it reverses the outcome of the case in question,and not merely the application of that law to future cases (see Brookfield, "High Court, High Dam, High Policy" [1983] Recent Law 62f) . It is regarded as especially serious when the decision being reversed had been adverse to the wishes of the Government for it indicates that Government is willing to use its strength in Parliament to overturn the law when a Iegal decision goes against it.

REGULATION MAKING PROCESS

The relevant empowering section for making the Regulation under question, s 165 Biosecurity Act, requires that the Minister consult with "such persons as the Minister has reason to believe are representatives of interests affected by the regulations", before making a recommendation to the Governor General. The Minister invited I60 individuals and groups to respond, and others were also able to make responses if they wished. A maximum of seven days (five working days) was available for persons to make replies. In the end MAF received 84 responses which covered a wide range of legal and technical issues. Although no independent scientists were asked for a response, several felt strongly enough to make one. The closing date was Wednesday 17th Sept. In the next two working days MAF speed readers must have got into action, and scientific and legal opinion obtained with the adroitness of Superman - for while the news media were still reporting (23.9) that the Regulations were not expected to be formalised till the Minister returned on the Thursday or Friday, the Regulations had already been passed on Monday 22nd (and gazetted on the 24th).

That the responses from those consulted had not been fully digested is evidenced by the fact that some of them had drawn the Minister's attention to the requirements for "consultation" set out by the Court of Appeal in Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 67I, pp 674-675:

Those consulted must be given a reasonable opportunity to state their views They must be allowed sufficient time, and genuine effort must be made. It is to be a reality, not a charade.

To consult is not merely to tell or present. Nor, at the other extreme, is it to agree.

Implicit in the concept is a requirement that the party consulted will be (or will be made) adequately informed so as to be able to make intelligent and useful responses.

It is also implicit that the party obliged to consult, while quite entitled to have a working plan already in mind, must keep its mind open and be ready to change and even start afresh.

� Consulting involves the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done.

Even though the nature and object of consultation must be related to the circumstances which call for it, it would be extremely difficult for the Minister to argue that he had complied with the above requirements for consultation. There are several ways in which "consultation" failed including:

Five working days was insufficient time in which to make responses, given the nature of the issues and the fact that organisations were being asked for their views. Two working days is not sufficient for 84 such responses even to be read much less fully digested , individual persons or groups consulted further, differences of views sorted out, etc. The actual wording of the Regulation was not given, even when this was specifically requested.

This suggests that a Court would probably find that the Minister had already decided what was to be done, and that the consultation was a mere "charade". The Regulation is therefore almost certainly procedurally ultra vires. To attempt to "cure" this by retrospectively validating it through an Act of Parliament is reprehensible.

The promise of retrospective validation effectively prevents all but the most determined (and wealthy) litigants from challenging the regulation in Court. This is of real concern, not only because of procedural ultra vires, but also because there are very good arguments for finding that the Regulation is substantively ultra vires also. These arguments were put to the Minister by some of those consulted

SUBSTANTlVE ULTRA-VIRES

The Biosecurity (Rabbit Calicivirus) Regulations 1997 have been made under s I65 (w) and (x) of the Biosecurity Act. Clause 2 of the Regulation reads:

2. Section 21 of the Animals Act 1967 not to apply to rabbit calicivirus - For the purposes of the savings provision relating to s 21 of the Animals Act 1967 that is set out in the Third Schedule of the Biosecurity Act 1993, the organism known as viral hemorrhagic disease of rabbits, or rabbit calicivirus, is to be treated as an organism established in New Zealand.

The empowering clause in s 165 (w) Biosecurity Act reads: Prescribing transitional and savings provisions relating to the coming into force of this Act, which may be additional to or in place of any of the provisions of Part X of this Act, ...

First, can removal of a specific disease from s 21 Animals Act relate to the coming into force of the Biosecurity Act, especially when that disease had already been the subject of an inquiry under the Animals Act four years after the coming into force of the Biosecurity Act? Also, can a provision which removes something from the Animals Act (and does not replace it with a provision in the Biosecurity Act) be a "savings" or "transitional" provision? The proper place to look for an empowering clause for Regulations which contain other than transitional or savings provisions was in the Animals Act (s 107), but this clause has been repealed.Also, as the Third Schedule is enacted under Part IX and is not therefore "any of the provisions of Part X" of the Act, can s I65 (w) be used to alter it?

To complicate things further, the Regulation simply fails to do what it is intended to do, ie remove RCD from s21 Animals Act. The Regulation deals only with the savings provision relating to s 21 of the Animals Act that is set out in the Third Schedule of the Biosecurity Act.However, the savings provision in the Biosecurity Act is s 169 and not the Third Schedule (the Third Schedule is a repealing provision not a savings provision). Section 169 reads;

169. Savings of Animals Act 1967 for limited Administrative Purposes- Notwithstanding s 167 (1) of this Act [that enacts the Third Schedule] the Animals Act l967 shall continue to full effect to the extent necessary for the proper administration of sections l3,14, 15,16 and 21 of that Act in relation to organisms not established in New Zealand

As s 169 applies notwithstanding the contents of the third Schedule, it would appear that RCD remains with s 21 and that importation and possession remain illegal. (The proposed Amendment to the Biosecurity Act recognises that both the Third Schedule and s 169 must be addressed, for it purports to retrospectively provide for the removal of RCD from both provisions.)

Even if the Regulation were worded in a way which properly expressed its purpose, additional arguments of substantive ultra vires could still be made, ie repugnancy, pursuit of improper purpose, and that the minister was influenced by irrelevant considerations or failure to consider relevant considerations.

The second empowering provision used was s 165(x) Providing for such matters as may be contemplated by or necessary for giving full effect to this Act and for its administration.

Although this is a widely drawn provision, it appears to be limited to matters relating to the Biosecurity Act and not to the Animals Act. Even if it were not so limited, it is difficult to see how removing a particular disease from s 21 Animals Act, after a determination has been made under that section not to approve the use of the disease, is a matter which is contemplated by or necessary for giving full effect to the Biosecurity Act and its administration.

RETROSPECTIVE VALIDATION

Although Parliament is legally able to pass retrospective legislation, in principle such legislation may well be repugnant to the Rule of Law, (Wade and Bradley, Constitutional and Administrative Law, 11th Edn,1993, p 267). Before Parliament wields its giant's power it should consider very carefully if such legislation is really necessary. The Biosecurity (Rabbit Calicivirus ) Amendment Bill has only four sections, but these contain three retrospective provisions. These are set out in cls 2 and 3 as follows:

2. Section 21 of Animals Act 1967 not to apply to rabbit calicivirus - (1) The organism known as viral haemorrhagic disease of rabbits, or rabbit calicivirus, is deemed on and after 24 September I997 to have been established in New Zealand for the purposes of S 21 of the Animals Act 1967 (as continued in force by the Third Schedule of the principal Act.

(2) The organism known as viral haemorrhagic disease of rabbits, or rabbit calicivirus, is deemed on or after 24th September 1997, to have been an organism established in New Zealand for the purposes of s I69 of the principal Act.

(3). Validation and revocation of Biosecurity (Rabbit Calicivirus Regulations 1997 - (1) The Biosecurity (Rabbit Calicivirus) Regulations 1997 are deemed on and after 24 September 1997, to have been valid. (2) The Biosecurity (Rabbit Calicivirus) Regulations 1997 (S.R 1997/203) are revoked.

The intention appears to be for the provisions in cl 2 to replace the Regulations (which are to be revoked by cl 3(2)). However, as the Regulations were never effective with respect to the savings provision in s 169 of the Biosecurity Act, cl 2(2) must be seen as retrospectively legalising actions which have remained illegal under s 21 (4} Animals Act right up to the date the Bill is passed. Clause 2 will effectively "cure" the shortcomings of the Regulation, but only by legalising retrospectively.

Of even more concern is cl 3 which purports to validate retrospectively Regulations which are almost certainly ultra vires, but which are also inadequately formed to effect the intended law change. Clause 3 is simply a nonsense and should be removed. However, the fact that the Government should wish to include it is an issue of great concern. Its intention appears to be to "cure" the failure to consult adequately, and to deter challenges to the validity of the Regulation because of this - indicating that Government does not consider it necessary to comply with the legal requirement to consult.It also appears to "cure" the fact that it does not fit within the scope of the empowering clause - indicating that Government does not consider it necessary to comply with the legal constraints of an empowering clause. All can be "cured" by Government's ability to control Parliament and to legislate retrospectively.This is the most serious challenge to the Rule of Law.

CONSEQUENCES OF BREACHES OF THE RULE OF LAW

The Rule of Law is reliant on the ability of Government to understand that there are limits beyond which it is sensible not to wield its power, even when it is "legal" to do so.When the Government gets this wrong there are always consequences.

Probably the most readily foreseeable consequence is that farmers who wish to introduce a different means of biological control at some future time may not consider it necessary to follow the legal procedures in the relevant legislation. They may well believe that MAF has neither the means nor the will to stop them, that the Government will come to their aid in spite of the law, and that their rights are more important than the rights of others.It is dangerous to give any group in society the message that, should they wish to disobey the law, no one is able to stop them.

Other interest groups who have not been successful in pursuing their causes by legal means might also try to take the law into their own hands. After all, their belief in the "rightness" of their cause may equal that of the errant farmers. If their actions are met by the force of the law, genuine rifts in society occur. Some people are seen to be more equal than others before the law. A pertinent comment in that regard was made by Penny Pepperell in The Capital Letter (1997) (20 TCL 35):

The irony of one act of vandalism (of the America's Cup) attracting a 34 month prison sentence while another unlawful act (introducing the rabbit calicivirus) has been rewarded with Cabinet endorsement, provides a good illustration of the importance of applying the rule of law on an impartial rather than a popularity poll basis.It is also a reminder of why judges' perceptions of the role of the Courts in our constitutional framework is of some importance.

Those whose legal rights have been rendered nugatory by MAF's refusal to enforce the law will feel powerless and cheated. Yet society expects their response to be within the law. The obvious irony is that New Zealanders are expected to comply with biosecurity laws which were enacted primarily for the protection of farmers. If farmers are going to be given something which has been declined under legislation designed to protect them, is New Zealand really ready for the new Hazardous Substances and New Organisms Act, with its precautionary principle and its emphasis on environmental concerns?

New Zealand's clean green image has taken a battering in recent times, as noted in The State of New Zealand's Environment by the Ministry for the Environment. This fiasco will do nothing to assist its recovery. The message being given clearly to the overseas community (including our trading partners) is that New Zealand cannot cope with a biosecurity emergency, and that its Government does not comprehend that there are real biosecurity problems in letting individual farmers mix up and spread about the countryside home brews which include unknown concentrations of deadly virus, as well as unknown amounts of other contaminants (including other diseases). This surely undermines the international credibility of MAF's certification procedures. As one professor of Zoology noted in his letter to the Minister: "Internationally we will surely be viewed ... as a country that has momentarily taken leave of its senses".