Aly joined Franks Ogilvie in 2024 as a Senior Solicitor. After graduating from Victoria University and completing her professional studies, she worked in general private practice gaining experience across a wide range of matters.
In her first two years of practice Aly appeared in the Employment Relations Authority, District Court, High Court, Court of Appeal and the Court Martial of New Zealand. She was involved in numerous mediations and negotiations, and in multiple successful judicial review challenges to Government decisions.
Aly is particularly interested in Government decision making processes and the evolution of New Zealand’s uncodified constitution. She takes satisfaction in problem solving and in providing both legal and practical advice that is comprehensive, concise and easy to understand.
In her personal time she enjoys being out in nature, going tothe driving range or tennis court, and being creative.
Summary
Thorndon Quay Collective Incorporated("TQC") successfully secured a declaration that Wellington City Council ("WCC") failed to properly consider all reasonable options when making a decision to reconfigure angle parking to parallel parking on Thorndon Quay, as required by the Local Government Act 2002 ("LGA").
Background
In June 2021 the WCC proposed to reconfigure parking on Thorndon Quay from angled parking to parallel parking to improve cyclist safety. Consultation was conducted as part of the “Let’s Get Wellington Moving” (“LGWM”) initiative.
TQC, as a representative body for local businesses, raised concerns about the adverse impacts of the parking changes on businesses. Alternatives were suggested, such as; reducing the speed to 30kmph in line with other speed reductions around the city, or repainting the angled parks on a relaxed angle so cars would have a clearer line of site of oncoming cyclists.
The WCC delegated its decision-making power to the Planning and Environment Committee. A Council employee was then tasked with identifying all available options to reduce the safety risk, but failed to present all options to the Committee.
On 24 June 2021 the Planning Committee passed a traffic resolution deciding to reconfigure the parking (“Decision”). A report distributed in support of the Decision noted that it was intended to make it safer “in the short term…, whilst long term decisions are made”.
TQC lodged an application for judicial review of the Decision, alleging that the Council failed to adhere to its decision-making responsibilities under the LGA.
The High Court dismissed TQC's application. TQC appealed that decision to the CA.
The Case
The focus of the appeal was on the interpretation and application of:
Section 76(3)
The Court of Appeal (“CA”) found the High Court erred in its interpretation of section76(3) of the LGA. This misinterpretation did not result in a different outcome, but the CA clarified its interpretation:
Section 77
The LGA requires local authorities to identify all reasonably practical options for achieving the objectives of a decision, and to assess the advantages and disadvantages of each option.
The CA found that because a WCC employee was tasked with considering all options, and not all of those options were provided to the Committee for consideration, the Committee (as the WCC’s delegate) had insufficient information to reach a properly informed view.
The appeal was successful on this basis.
Section 82A
If a local authority is required to consult in accordance with section 82, they must make certain information publicly available. Given its finding that the Council had not complied with section 77 (to identify options), it was not necessary for the CA to decide this point. However, the Court clarified that s 82A only applies to consultations specifically required by the LGA, not all consultations. The Decision was not subject to the consultation principles in section 82.
Section 79
Section 79 states it is the responsibility of a local authority to make judgments (in its discretion), about how to achieve compliance with sections 77 and 78. Section 77 is detailed above. Section 78 requires the consideration of the views and preferences of persons affected by or interested in the relevant matter.
The CA found that section 79 confers a broad discretion on local authorities, and undue formality would slow down local government decision-making significantly. While the Council did not formally make judgments, it could be inferred that they had informally made judgments about the process being appropriate. The CA commented that“ decision-making is a process, not a specific point in time”, and requiring exhaustive compliance with procedural details for every decision would be impractical and burdensome.
Result
The Court of Appeal granted TQC a declaration that the Council's decision-making processes did not comply with its obligations under section 77. However, it declined to formally quash the decision or order the reinstatement of angled parking due to:
The case provides valuable guidance for local authorities in navigating the delicate balance between strict compliance with the LGA and the practical realities of their operations. The CA acknowledged that while local authorities are obligated to comply with the LGA's decision-making procedures, local authorities should not be burdened with excessively formal procedures and meticulous record-keeping for every decision, particularly those of low significance. However, there should still be a clear record of the decision-making process, even if it's informal.
For further information on this case orsimilar issues, please contact Director Brigitte Morten.
Summary
The Human Rights Review Tribunal awarded $60,000 in damages for a privacy breach, in which an employer took an employee’s work laptop, personal cell phone and a personal USB drive, without consent.
Background
BMN, a former employee of Stonewood Group Limited, was invited to a coffee meeting outside the office. While he was gone, Stonewood's Executive Director removed his work laptop, personal cell phone, and personal USB flash drive from his desk. One week later, BMN's employment was terminated.
Despite repeated requests, Stonewood failed to return BMN's devices which contained personal information including tax returns and medical information.
BMN filed a claim with the Human Rights Review Tribunal alleging Stonewood interfered with his privacy. Stonewood disputed taking the cell phone and USB and argued there was no breach of privacy.
The Case
The Tribunal considered whether there was an "interference with privacy" under the Privacy Act, which requires both a breach of an Information Privacy Principle (“IPP”) and demonstrable harm to the individual.
Prior to considering the IPPs, the tribunal analysed the definition of collection, finding it is to be interpreted widely and can mean “acquire”. The active and intentional steps of Stonewood to take BMN’s devices, while knowing that they contained his personal information was “collection”, not the receipt of unsolicited information.
IPPs
Harm to the Individual
The Tribunal found that Stonewood’s breach of IPPs 1, 2, and 4 caused significant humiliation, loss of dignity, and injury to feelings. This was evidenced by BMN's subsequent diagnosis of acute anxiety and depression. The Tribunal acknowledged the impact on BMN’s tax filing and career prospects.
Result
The Tribunal ruled in favour of BMN, finding that Stonewood interfered with his privacy. Stonewood was ordered to return BMN's personal information and USB drive, delete all copies of his information, and pay $60,000 in damages for humiliation, loss of dignity, and injury to feelings, in addition to $394.87 in pecuniary losses. Non-publication orders were granted to protect BMN's identity.
The case highlights that “collection” is to be interpreted widely and that a right to privacy exists in the context of taking property that is known to contain personal information, without consent, and without a lawful purpose or where the person did not reasonably believe an exception to requiring consent, under the Act, applied. An interference with privacy under the Act will only be made out where there is evidence of correlating harm to the individual.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
Summary
This decision of the Employment Relations Authority declined an application to fix a Fair Pay Agreement following the repeal of the Fair Pay Agreements Act. The Legislation Act allows initiated processes to continue despite a repeal of its underlying Act, but legislative context allowed the Authority to determine that Parliament intended all bargaining processes to cease.
Background
In 2022, Parliament passed the Fair Pay Agreements Act (“FPAA”). The FPAA was designed to bring employee and employer associations to the table to bargain for minimum employment terms and conditions that would apply to a whole industry or occupation. These bargaining processes could be brought by a relatively small proportion of an industry sector.
In 2023, Unite Union applied for a fair pay agreement for the hospitality industry. The preliminary requirements to initiate bargaining were met and on 29 May 2023 public notice of approval of the application was given. Employee and employer bargaining sides were formed and notified, with additional unions and employer organisations joining the respective sides. The employer bargaining side did not produce an inter-party side agreement or appoint a lead advocate within the FPAA prescribed timeline.
National and ACT campaigned to repeal the FPAA during the 2023 election, and subsequently repealed the FPAA under urgency in late 2023.The Repeal Bill contained no transitional provisions and made no mention of ongoing bargaining processes.
On the same day as the Repeal Bill was introduced, Unite lodged an application in the Employment Relations Authority (“ERA”) to fix (unilaterally determine) a fair pay agreement for the hospitality industry. It claimed that the failure of the employer associations to come to an inter-party side agreement was a breach of the FPAA’s requirements for good faith, and it had no reasonable alternative to reach a fair pay agreement without the ERA fixing one.
The Case
As the FPAA was repealed shortly after Unite’s application for a fixed agreement, the issue before the ERA was jurisdictional: could it still fix a fair pay agreement even after the legislation empowering it to do so had been repealed?
In its application for the fair pay agreement process to continue, Unite relied upon section 33(1)(c) of the Legislation Act 2019, which provided that certain processes commenced under the authority of an act may continue until their completion even if the underlying act was repealed. Unite argued that proceedings were to be determined under the law at the time they were filed, relying on the principle against the retroactive application of legislation as a lens to view section 33(1)(c).
The employer associations argued that section 33(1)(c) was limited to processes and did not resurrect substantive remedies (such as the fixing of an agreement), and relied upon the Minister’s speeches to the House to show Parliament’s intention that the ongoing bargaining processes would cease upon repeal. Further, the presumption against retroactive enforcement of legislation was not to be used to undermine government policy. They also argued the application was moot: the repeal of the FPAA meant there was no underlying structure for any award to have effect.
Section 33(1)(c) of the Legislation Act is subject to section 9 of that Act. Section 9 excludes the provisions in Part 2 of the Act (which includes section 33) if the provisions of the legislation in question, or the legislative context, require otherwise. The Government had the chance (and declined) to amend the repeal Bill to either explicitly allow ongoing processes to continue or to state that they were to end. Each party argued that this was beneficial to their own side.
The ERA determined that without the empowering legislation the ERA had no resources to draw on to make the necessary investigations for fixing an FPA, and in any case there would have been no legislative mechanism to enforce an FPA going forward. Parliament must therefore have intended that the repeal of the FPAA was to put a stop to ongoing bargaining processes, and so the legislative context of the case required that section 33(1)(c) not apply.
Result
The ERA determined they did not have jurisdiction and declined to proceed with Unite’s application to fix a fair pay agreement.
This decision highlights the importance of thorough statutory drafting. The Repeal Bill was very barebones, and despite the Minister’s speeches in Parliament about her clear intention to end the bargaining processes it still took the issue going through the ERA and the use of the peripheral legislative context, not a clear intention within the Bill itself, to settle the issue.
For further information on this case or similar issues, please contact Director Rob Ogilvie.
Note: Hospitality NZ, one of the employer associations involved in this case, was represented by their General Counsel Tim Blake. Tim also works as a Consultant for Franks Ogilvie. Franks Ogilvie was not itself involved in this case.
