Publiclaw

Key Issues

Here are the steps you need to go through when answering a problem question. Prepare a checklist before going into an examination.

The main steps are as follows:

  • Identify all administrative decisions which can be challenged.
  • Check whether there is an ouster clause and discuss whether it prevents review.
  • Consider whether the decision maker was exercising a public function.
  • Discuss justiciability.
  • Apply the three grounds of review. Check which of the limbs of illegality applies, then which of the limbs of procedural impropriety. Then consider irrationality.
  • Consider remedies.

Common Pitfalls

  • Make sure you identify all the different decisions in a problem question that can be reviewed. Often there is more than one.
  • Do not miss out any of the steps which need to be applied when answering a judicial review problem question.
  • Be aware of the differences between the separate limbs and sub-limbs of illegality and procedural impropriety.
  • In an examination answer, you should aim to cite at least one case as authority for each limb or sub-limb of illegality or procedural impropriety that you apply. You may also need to cite cases for irrationality.
  • Compare the facts in the problem question with the facts of the cases to see whether the relevant ground of review is satisfied.
  • Do not list all the limbs and sub-limbs of each head of review in an exam answer. This wastes valuable time. Think about which limbs are relevant when you plan your answer, and discuss only those that apply or might apply.

 

Question 1

A Christchurch company called Altech has, by genetically modifying a common species of bacterium that lives in sheep, developed a new bacterium called NSV9. It is designed to infect sheep and improve their wool yield. Section 3 of the Genetically Modified Organisms Act (GMOA) provides:

The purposes of this Act are to:
(a) promote advances in the sciences of genetics and biochemistry and their commercial application; and
(b) protect human beings, animals, plants and the environment from any harmful effects which the genetic
modification of living organisms may cause; and
(c) establish a system of licensing for all persons wishing genetically to modify living organisms and to prevent genetic modification by persons not holding a licence.

Section 34 of the GMOA provides:
The Minister of Agriculture may issue a warrant instructing an Agriculture Inspector to seize any genetically modified viral matter and to enter any premises for that purpose if the Minister has reason to suspect that such matter threatens New Zealand’s agricultural industry.

The Minister of Agriculture, the Hon Bill Greenwood, tells the Rt Hon Margaret Fitzroy, the Minister of Energy, that she may exercise any of his powers under the GMOA on his behalf whenever she wishes. Margaret is a member of the Gaia Liberation Army (GLA), a pressure group that opposes genetic engineering. Without first consulting Altech, she instructs inspectors to seize all of the NSV9 held at Altech’s laboratories in New Zealand. She tells the inspectors that she wants to prevent Altech from manufacturing and distributing NSV9 because it will harm New Zealand’s image overseas as a “clean green GE-free country” and because she regards genetic engineering as immoral.

After the seizure, Margaret receives a confidential report from Dr Grimes, a well-known opponent of genetic modification, which suggests that NSV9 poses a threat to human health. Again, without consulting Altech, Margaret immediately bans the production and possession of NSV9 and cancels Altech’s licence to produce it under s 78 of the GMOA.

Section 78 provides:
If the Minister of Agriculture is satisfied that any genetically modified organism is a threat to human health, the Minister may immediately ban the production and possession of such an organism by any person and may immediately cancel any licence issued to any person permitting the production of such an organism.

Section 204 of the GMOA provides:
No decision made under s 78 of this Act shall be called into question or quashed by any Court.

Allan, Altech’s chief executive, is furious. He seeks your advice as to whether Altech can challenge either of Margaret’s decisions. In particular, he asks you whether the fact that NSV9 is bacterial and not viral is relevant in relation to Margaret’s decision under s 34.

Outline of Solution

You will need to address the following matters in your answer:

  • Does s 204 preclude judicial review?
  • Could Bill delegate his powers to Margaret?
  • Did Margaret make a jurisdictional error of fact or law in concluding that s 34 of the GMOA allowed her to order the seizure of NSV9, given that it is bacterial and not viral?
  • Did Margaret act on the basis of an improper purpose, take irrelevant considerations into account or act irrationally in exercising the s 34 power?
  • Did Altech have a right to be heard before its NSV9 was seized and before its licence was cancelled and production and possession of NSV9 were prohibited?

 

Question 2

The New Zealand Government has been considering entering into a comprehensive free trade agreement with the European Union for several years. The New Zealand Indigenous Council (NZIC) — an organisation representing Maori interests — has been closely involved in the negotiations and the government has promised the NZIC not to sign a treaty without consulting it. Negotiations with the European Union suddenly collapse.

One week later the Prime Minister, the Rt Hon David Grey, announces that New Zealand has, in secret, entered into a free trade agreement called NUFTA with the United States. Article 17 of NUFTA provides that:
No New Zealand investor shall be treated more favourably by the New Zealand government than any US investor and no US investor shall be treated more favourably by the US government than any New Zealand investor.

One of the implications of art 17 is that, when the New Zealand Government wishes to sell surplus land, it cannot offer it to Maori without offering it to any US investors who might be interested in it, and on the same terms. The NZIC is outraged and claims that NUFTA breaches the Treaty of Waitangi. When asked by a journalist for the Evening Mail newspaper whether art 17 is consistent with the Treaty of Waitangi, David says, “We really had no time to think about the Treaty during the hectic negotiations with the US, but we’re confident that NUFTA will deliver benefits for all New Zealanders”.

As soon as David announces New Zealand’s entry into the NUFTA, the share price of FarmCo, New Zealand’s largest beef exporter, begins to rise and soon reaches an all-time high. The Evening Mail reveals that, because of art 17 of NUFTA, FarmCo expects to be able to buy a large US beef processing company.

FarmCo would not have had similar business opportunities under a free trade treaty with the European Union. The Evening Mail further reveals that David and several other ministers who played a major role in the Government’s decision to enter into NUFTA hold very large shareholdings in FarmCo and that these ministers have collectively gained NZ$44 million from the rise in FarmCo’s share price.

The NZIC commences judicial review proceedings in the High Court, seeking a declaration that entry into NUFTA was unlawful under New Zealand law. Write the judgment of the High Court.

Outline of Solution

You will need to address the following matters in your answer:

  • Was the decision to enter into NUFTA non-justiciable?
  • Did the NZIC have a legitimate expectation of consultation?
  • Was the Treaty of Waitangi a mandatory relevant consideration?
  • Was the decision to enter into NUFTA irrational?
  • Was the decision tainted by bias?

 

For the full sample answers and more see Wood, Questions and Answers Public Law (3rd ed, LexisNexis, Wellington, 2014)

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