Brigitte is admitted as a barrister and solicitor of the High Court.
She has over a decade of experience working in politics across Australia and New Zealand. She has a Bachelor of Law from Victoria University, a Masters of Law from the Australian National University, and a Graduate Certificate in Counter-Terrorism from Interdisciplinary Center (Israel).
Brigitte spent three years providing political and media advice to the Embassy of Israel in Australia, whilst dealing with a number of high profile events. She worked as a Senior Advisor in state politics and worked on a number of Australian state and federal election campaigns. Brigitte was a Chief of Staff to an Australian Senator, before returning home to be the Senior Ministerial Advisor to the Minister of Education in the last National Government.
She has worked extensively with clients in the private sector to help them establish and maintain relationships with government, lobby on important issues, and drive campaigns to raise public interest. Brigitte particularly enjoys working with grassroots and member based organisations.
Brigitte has extensive knowledge of law making processes, how to best utilise the Official Information Act, and how to coordinate public interest campaigns across multiple channels. She is particularly interested and experienced in firearms law, electoral law and large scale reforms.
She is a regular commentator for RNZ and Newshub, and writes a weekly column for NBR.
Franks Ogilvie was instructed to assist with strategic advice and legal submissions on the Lower Hutt City Council proposed Change 56. This change was required due to new intensification laws and the Council sought to protect some areas from the new intensification with heritage protections.
The Voluntary Heritage Group seeks to have planning laws and regulations changed to ensure heritage listing can only be imposed on a property with the consent of the landowner. Franks Ogilvie was originally instructed to assist with the designation of new and expanded heritage areas in the Lower Hutt City Council District Plan. However, Parliament passed the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act which required specified councils, such as Lower Hutt, to incorporate new intensification requirements in to their District Plan in a short time period.
In Plan Change 56, the Council effectively transposed the work to date on the District Plan regarding heritage. This would have resulted in significant new residential and commercial areas of Lower Hutt restricted in their ability to renovate or build. Franks Ogilvie provided support to the campaign that engaged with affected residents to enable them to submit on the process. Typically processes such as these are dominated by those that wish to protect heritage properties and the affected landowners struggle to have the information required to oppose them. The Voluntary Heritage Group provided a platform for these owners to demonstrate to council the impact a heritage designation would have on their property.
Franks Ogilvie provided legal advice on the responsibilities of the Council under the Enabling Housing Act and demonstrated that the Council was not meeting the high threshold the Act imposed for intensification exemptions. Franks Ogilvie drafted submissions for the process that drew on the insufficient evidence in the proposed plan change, illustrating that legally the Council could not impose the restrictions they sought to do so. Franks Ogilvie joined members of the group and expert witnesses to present orally to the Independent Panel.
Franks Ogilvie also provided support with media and member communications, and engagement with politicians.
The Council was not able to impose the new and expanded heritage areas. The Independent Panel Report agreed with the arguments put forward by the Voluntary Heritage Group including the Enabling Supply Act process was not the appropriate pathway to impose these new areas, the expert evidence in the report was insufficient and the Council had failed to properly engage with the Voluntary Heritage expert report. Notably, the Panel agreed with a key point raised by the Group that the proposed areas were actually areas of ‘special character’ that did not qualify for exemption under the Act.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
Franks Ogilvie has wide-ranging experience in establishing and providing guidance to incorporated societies, including on constitutional arrangements, dispute resolution, and compliance matters.
In 2021, Franks Ogilvie submitted on the Incorporated Societies Bill. We emphasised the distinctiveness of New Zealand's voluntary sector and warned against overly aligning incorporated societies' law with company law.
In July this year, Franks Ogilvie submitted Ministry of Business, Innovation and Employment (MBIE) on the Incorporated Societies Regulations 2023. These proposed regulations will supplement the 2022 Act and deal with number of the administrative and procedural matters.
Key concerns that we raised were:
The proposed regulations introduce mandatory online procedures for notifications and applications, with provisions allowing the Registrar to accept alternative methods in cases of unreasonableness.
Although the digital focus promotes efficiency, the potential exclusion of individuals facing digital barriers, such as the elderly, those with disabilities, or individuals in low-income or remote areas, raises concerns about access to essential services.
Recommendation:
Franks Ogilvie recommended incorporating a provision in the proposed regulations that obliges the Registrar to accept paper-based applications, offering an equitable alternative to digital filing. To address concerns about potential inefficiency, a longer processing period for paper-based applications could be considered.
Regulation 5(d) requires officers to list their physical address for incorporation applications, acknowledging the privacy implications. The same requirement applies to re-registration.
Franks Ogilvie noted that there are obvious privacy implications to requiring notification of physical address. Although MBIE has provided reassurance that officers’ physical addresses will not be made public on the register, this protection should be made certain in the Regulations. This change will give those considering participating in the voluntary sector a clear assurance that their privacy is not at risk.
Recommendation:
Franks Ogilvie recommended revising the proposed regulations 5(d), 11, and 45(e)(i) to provide flexibility in address details submission. The options include requiring a physical or electronic address along with a telephone number or explicitly specifying that a provided physical address won't be made public without the officer's consent.
Proposed Regulation 15 defines financial reporting standards for small societies based on ‘total current assets’. The definition of "total current assets" is unclear and it includes other term which can be misinterpreted, such as ‘cash equivalent’. The proposed regulations draw on international accounting standards but lack clarity for practical application. The ambiguity surrounding investments such as term deposits creates uncertainty for small societies striving to meet financial reporting obligations.
Recommendation:
Franks Ogilvie recommended amending Regulation 15(2) to specifically exclude term investments held with a deposit-taker (as defined in sch 2 cl 2 of the Deposit Takers Act 2023) from the definition of ‘cash equivalent’. This clarification ensures that small societies can accurately determine their financial reporting obligations, avoiding unnecessary costs and complexity.
You can read Franks Ogilvie's submission here
If you would like to understand more about Incorporated Societies and how the changes may affect your organisation, please contact Director Rob Ogilvie
The Timaru, Whangarei and Waimakariri District Councils unsuccessfully challenged the Government’s Three Waters reforms. They sought declarations recognising important common law principles related to democratic local governance and property rights.
The Government’s proposed Three Waters reform aims to change how drinking water, wastewater and storm water services are provided. These services are currently provided by local authorities to their communities through infrastructure assets the councils own.
At the time these proceedings were lodged, the Government sought to shift the delivery and operation of three waters services from local councils to four new multi-regional water service entities. Future reforms intended to transfer council-owned infrastructure assets to those entities, however local councils would not be compensated for the value of their assets. As part of their Three Waters ‘reset’ in April 2023, the Government has proposed a smaller set of ten regional entities to replace the previous four mega-entities. The ten regional water services entities would be established based on existing local authority boundaries. The ‘reset’ has delayed the Three Waters reforms by two years and is due to come into force in 2026.
The Timaru, Whangarei and Waimakariri District Councils (the Councils) oppose the proposed reforms. They are concerned the reforms will cause a loss of local democratic accountability and deprive the Councils of assets that local communities have funded over generations.
The Councils sought three declarations in a bid to challenge the implementation of the Three Waters reforms:
A. Local government is an important and longstanding component of the democratic governance of New Zealand.
B. Important and longstanding principles and features of the democratic governance of New Zealand at the local level include:
a) Local infrastructure assets are owned and/or controlled, and related services are provided by local councils;
b) Local councils are responsive/and democratically accountable to their communities for the provision of infrastructure assets and related services;
c) Local councils owe (or may owe) fiduciary-like obligations to their communities; and
d) Their communities have wholly or materially funded local government infrastructure assets.
C. The Councils’ rights of ownership in relation to infrastructure assets include the following:
a) The exclusive ability to prevent others from interfering with such assets;
b) The exclusive possession or control of such assets;
c) The exclusive ability to manage and operate, and/or enter into contracts about such assets;
d) The exclusive ability to modify or replace the assets;
e) The exclusive ability to use such assets as security for borrowing; and
f) The exclusive entitlement to receive compensation if their ownership of the assets is removed by legislation.
A declaratory judgment is a formal statement by a court pronouncing the rights or legal position of the parties as they stand. The Crown submitted that the declarations sought were too abstract and general to come within the jurisdiction of the Declaratory Judgments Act 1908. The Crown contended that the Court’s jurisdiction extended to legal rights but not to ‘components’, ‘principles’, or ‘features’ of local government.
Mallon J took a broad view of the ‘catch-all provision’ under the Act which permits the Court to make declarations concerning legal rights. Her Honour agreed with the Councils that the common law includes fundamental values and principles. The declaratory relief sought to establish that the Three Waters reforms disturbed important constitutional law principles affecting the Councils and their communities. The Court accepted that they fell within the broad ‘stand-alone’ jurisdiction for declarations of legal rights.
Having determined that it had jurisdiction to make the declarations sought, the Court assessed whether it should do so in light of the relevant discretionary factors.
Both the Crown and the Court accepted that local government is an important and longstanding component of the democratic governance of New Zealand. Mallon J held the declarations sought do not accurately reflect this principle. The Local Government Act 2002 already defines the purposes and principles of local government, including democratic accountability. Her Honour disagreed this principle required local authorities to own or control local infrastructure assets, nor is it a ‘feature’ that cannot be changed. Just as Parliament conferred those functions and powers, it can remove them. It is for Parliament to decide whether local councils retain the ownership and control of local infrastructure assets and related services, and how those services should be delivered. The Court agreed with the Crown’s arguments and held the proposed declarations were constructed abstractly and devoid of any utility.
The Councils relied on the common law principle of the right not to be forcibly deprived of property without compensation unless there is legislative authority. The Court acknowledged that it is a principle of statutory interpretation to construe statutes in recognition of this right. The Councils submitted that they were entitled to receive proper compensation if they were to lose ownership of their Three Waters assets through legislation. The Crown argued that this right is limited to the deprivation of private property. The Crown also submitted that the Councils’ ownership rights sit within a complex legislative and regulatory framework that has always been subject to the sovereignty of Parliament, which the Councils’ declarations failed to acknowledge.
The Court agreed with the Crown’s arguments. The declarations sought were framed too generally and inaccurately captured the full framework of local government ownership rights regarding infrastructure assets. Mallon J accepted that “the Three Waters reforms involve a form of expropriation for which compensation could be given, but whether it is, is ultimately a matter for Parliament”.
Mallon J held that granting the declaratory relief would be an inappropriate exercise of the Court’s discretion. To do so would be inconsistent with the principle of non-interference because the “courts should not try to dictate, by declaration or a willingness to award damages or any other form of relief, what should be placed before Parliament”. While the declarations had been carefully framed to avoid the principle of non-interference, they nevertheless aimed to influence the legislative process.
The Councils submitted that Parliament should not proceed with the reforms without being properly informed of the important principles and rights addressed in the declarations. The Court held the declarations were unnecessary for such a purpose. If the reforms proceed, Parliament would be doing so knowing that they are expropriating councils’ water services assets, diluting the councils’ control of those assets, and removing the local democratic accountability inherent in the governance and management of those assets.
The Councils’ application for declaratory relief was dismissed.
The Timaru and Waimakariri District Councils have filed a notice of appeal and intend to challenge the High Court decision to refuse the declarations. The Councils announced they intend to approach other local authorities who may wish to join the proceedings. Whangarei District Council decided to join the appeal in August 2023.
Following the change of Government after the 2023 general election, the Timaru District Council voted on January 30 2024 to withdraw the appeal. This came after the declared intent of the incoming Local Government Minister to repeal the Three Waters reforms.
For further information on this case or similar issues, please contact Director Brigitte Morten
