Jori Whitfield-Topp

Law Clerk
Jori Whitfield-Topp

Jori Whitfield-Topp is a Research Intern at Franks Ogilvie.


Jori completed his LLB / BA in late 2021 with a double-major in Political Science and International Relations. He expects to be admitted to the profession in early 2022.


He has experience across the public sector, having worked at Te Taura Whiri | Te Reo Maori (Māori Language Commission), the Electricity Authority and NZ Police. 


Alongside his interests in public and commercial law, Jori enjoys employment law in his previous work as a legal assistant. He has provided commentary on various topics, including business approaches to COVID-19, Labour Inspectorate Decisions and the Declarations of Inconsistency Bill. 



Jori
in the news
December 3, 2021
Summary

MBIE refused Mr Bolton and his partner’s ("the applicants") application for exemption from MIQ isolation. The applicants successfully reviewed this decision and the court directed MBIE to reconsider.

Background

Mr Bolton is 73 years old, and is the only New Zealand board member of the multinational company Xplor Industries. Mr Bolton and his partner wished to isolate at his own home rather than an MIQ facility upon returning from a planned board meeting in Boston. They applied for an exemption to under the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020 (“IQ Order”). MBIE declined the application.

The Case

Mr Bolton applied to the High Court for judicial review of the decision under four causes of action. The first was MBIE had made an error of law by misconstruing clause 12 of the IQ Order. The second was MBIE and the Director General failed to consider relevant grounds. The third was if clause 12 was to be interpreted as suggested by the respondents, it was inconsistent with the Bill of Rights Act(“NZBORA”). Finally, the applicants argued the decision was unreasonable.

The applicants sought a declaration that the decision was unlawful. They also sought an order permitting them to self-isolate at home, or in the alternative, a direction to reconsider the exemption request.

Error of Law

The applicants submitted the decision maker made an error of law by misconstruing its obligations under clause 12 of the MIQ Order, and interpreted "other needs" could only mean medical needs. Venning J noted a Medical Officer of Health may allow a person to isolate in any place other than an MIQ facility "for any reason" under the clause.

MBIE incorrectly claimed the exemption could only be approved for exceptional reasons. This wording is not used in clause 12, and was, in the Court’s view, likely the result of confusion with clause 14 of the Order. The Court ruled that MBIE’s misunderstanding of clause 12 amounted to an error of law.

Failure to consider relevant factors

As a result of this confusion, MBIE failed to consider relevant factors in its decision to decline the application. Because self-isolation in MIQ is a restriction on the right to freedom of movement under NZBORA, “other needs” could not be interpreted as just the health needs of the applicants. MBIE stated they had considered the risk of in-facility transmission of Covid-19 and Mr Bolton’s age. Despite this, the Court determined they had not considered the applicant’s proposed measures during self-isolation, nor the economic factors raised in the application.

The Court noted the Government had shifted away from its elimination strategy since the IQ Order was made in September 2020. The respondents accepted the Government’s interest in overseas business travel, and that many individuals in New Zealand were already isolating at home.

Because the Court was satisfied on the first two grounds of review, Venning J determined it was unnecessary to consider the remaining two causes of action.

Result

Venning J quashed the decision and directed MBIE to actively consider the following factors when reconsidering its decision, and balance these against the potential health risks:

- The need for Mr Bolton to attend the board meeting;

- The need of the applicants to enjoy rights conferred by NZBORA, including the right to freedom of movement and as citizens to enter New Zealand without unreasonable limitation; and

- The need for the applicants to avoid risk of contractingCovid-19 at an MIQ facility, and characteristics such as age which make them especially vulnerable.

October 19, 2021

Summary

GF unsuccessfully applied for judicial review of the COVID-19 Public Health Response (Vaccinations) Order 2021 (“Order”). The High Court found the Order was within the authority of COVID-19 Public Health Response Act 2020, and was not irrational.

Background

The applicant, GF, was an employee of NZ Customs. The Order was signed by the Associate Minister in April 2021 for the purpose of preventing and limiting the risk of Covid-19 spreading in the community. To achieve this purpose, the Order required frontline workers to be vaccinated before conducting certain activities. GF’s work was captured by the Order and she refused to get vaccinated. Her employment was terminated as a result.

GF complained to the Employment Relations Authority (“ERA”), claiming that she was unjustifiably dismissed. The ERA dismissed her claim, as the employer was complying with the Order, and the Authority had no power to declare the Order itself to be invalid.

GF challenged the validity of the Order in the High Court on two grounds. First, the Order breached New Zealand Bill of Rights Act 1990 (“NZBORA”) and was unlawful. Second, the Order was irrational.

The Case

Was the Order within the powers of the COVID-19 Public Health Response Act?

GF argued the Order was not a justified limitation on the right to refuse medical treatment under s 11 of NZBORA, and the right to freedom from discrimination under s 19. Vaccinations required by the Order were within the definition of medical treatment under s 11. GF submitted that while workers could refuse the vaccine, the Order subjected workers to duress which compromised their ability to make a free and informed choice to vaccinate.

The Court acknowledged affected workers suffered a significant imposition on their freedom of choice to refuse vaccination, and there was risk of discrimination. This meant the Crown had to justify its use of the Vaccination Order.

Dr Ashley Bloomfield’s evidence showed vaccination reduced rates of infection and the severity of symptoms, reducing the chance of fatality. As border workers were the most likely source of community transmissions, vaccinations helped to significantly reduce the risk of wider outbreaks. GF failed to identify an alternative method of addressing Covid-19 that would be equally effective. The Court held the economic, social, and health benefits of the Order outweighed any limitations to the rights of workers, and was demonstrably justified.  

Was the Order irrational?
Decisions made by the government can be challenged on the grounds they are unreasonable or irrational. A decision will be irrational where it is not supported by evidence or logic, or fails to follow an established legal principle.

GF argued the Order was not created in partnership with Māori, and was inconsistent with legal principles in other legislation governing employment relationships. This included the Health and Safety at Work Act 2015 (“HSWA”), the Universal Declaration of Human Rights (UDHR), and the Health and Disability Commissioner (Code of Health and Disability Services Consumers Rights) Regulations 1996 (“Regulations”).

There was considerable overlap between the applicant’s arguments that the Order was unlawful and irrational. Much of GF’s claims relied on the assertion that the Order was inconsistent with the HWSA and Regulations by imposing its own requirements.

The Court found the Minister had adequately considered the impacts of the Vaccination Order on Māori, the Treaty of Waitangi, and workers. It had not acted irrationally, nor without regard to its consequences.  The Court could not second-guess the policy decisions made by the Minister.

The Court also held the Order not did not breach or replace any provisions of the HSWA or the Regulations. Nor did it interfere with an employee’s right to dispute employment matters in the ERA and Employment Court.

Result

The High Court found that the Order was neither a breach of NZBORA nor irrational, and dismissed the application for judicial review. This decision shows that for workers affected by the vaccinations public health orders, freedom to refuse vaccination does not mean freedom from consequence.

September 8, 2021

Summary

In 2018 the Bay of Plenty Regional Council and Whakatāne District Council granted Cresswell NZ Ltd consents to take and bottle groundwater from an aquifer near Otakiri. Te Rūnanga o Ngāti Awa (Ngāti Awa), Sustainable Otakiri and several other parties sought to appeal these decisions in the Environment Court. Following an unsuccessful appeal, the High Court upheld the Environment Court’s decision to allow the granting of consents to Creswell NZ Ltd.

Background

Creswell NZ Ltd is a subsidiary company of Nong fu Springs, a Chinese water bottling giant. In 2016, Creswell entered an agreement to purchase an existing water bottling plant in Otakiri. The company intended to expand operations and significantly increase production, with much of the water being sold to China.

In 2018, the company was given approval to purchase a spring in the Bay of Plenty in order to export over one billion litres of drinking water each year. Creswell was also granted water permits from the Bay of Plenty Regional Council and consents from Whakatane District Council for expansion of the existing bottling plant. These decisions were made jointly by a panel of two independent commissioners.

Te Rūnangao Ngāti Awa is the iwi authority for Ngāti Awa, a collection of 22 hapū representatives. Ngāti Awa was supported in its appeal by other groups, including the Ngāti Pikiao Environmental Society and Te Rūnanga o Ngāi Te Rangi Iwi Trust. Sustainable Otakiri Incorporated is a group consisting of residents living near the Otakiri Springs bottling plant and was established following the decision to grant consents.

The groups were unsuccessful in their first appeal to the Environment Court under the Resource Management Act (RMA). Following this, the groups appealed to the High Court.

The Case

A key concern of the appellants was that the water was to be exported overseas in large quantities. Ngāti Awa argued this would have negative cultural impacts on the mauri and mana of the water. The High Court supported the Environment Court’s finding the cultural effects of export as the water’s end use were beyond the scope of the decision. No evidence had convinced the Environment Court that there were any metaphysical effects specific to the aquifer being used. If the taking of the water was sustainable, it was decided that its subsequent exportation should also be.

The High Court acknowledged water is a taonga, and Otakiri is an area of particular significance to Ngāti Awa. Despite this, the High Court agreed with the Environment Court that the drawing of water would “not unreasonably prevent the exercise of kaitiakitanga by Ngāti Awa.”

In addition to this, Sustainable Otakiri argued the environmental effects of the plastic bottles had not been adequately considered. Planned expansions to the bottling plant would allow Creswell to produce up to 144,000 bottles per hour. The majority in the Environment Court established that while the plastic bottles had some foreseeable impact, refusal of consent would have no effect on the wider industry. Legislative intervention would be required, as the Environment Court could not “effectively prohibit ether using plastic bottles or exporting bottled water.”

The Environment Court determined this end use of exporting bottled water went beyond the scope of consideration for an application for consent to draw from the aquifer. The High Court agreed the environmental impacts of discarded plastic bottles were too remote to warrant further consideration.

The appellants also attempted to argue Creswell’s proposal was a non-complying industrial activity under the Whakatāne District Plan. The High Court disagreed, and held the Environment Court had correctly determined Cresswell’s activity status as a discretionary “rural processing activity.” The Environment Court had correctly classified the respondent’s proposal as an extension of an existing use of the land, and therefore a discretionary activity under the RMA. This meant the planned expansions were not available for consideration as a non-complying activity.

Result

The High Court found none of the grounds were met and the appeal was dismissed. The courts have indicated that while there are public concerns raised by Creswell’s planned operations, it is a matter for Parliament to resolve.

As of 29 July 2021,Ngāti Awa and Sustainable Otakiri have been granted leave to appeal the High Court decision in the Court of Appeal. Of the fifteen grounds of appeal sought, five have been granted. These are whether the:

- environmental effects of plastic bottles were within the scope of consideration;

- Environmental Court should have sought further evidence of environmental effects,

- sustainability assessment under the RMA was sufficient to address relevant cultural effects;

- activity should be considered as a discretionary “rural processing activity” rather than anon-complying industrial activity; and

- use of the land was an extension of its current use, and not appropriate for further consideration.

This appeal will provide another opportunity to examine the extent to which councils must consider relevant environmental and cultural factors when granting consents.

To understand more about this case or similar decisions, please contact Director Brigitte Morten.

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