Madeleine Railton is a research intern at Franks Ogilvie.
Madeleine is currently studying a Bachelor of Engineering.
She has experience as an intern for a Member of Parliament, before moving into work as a Membership & Administration Assistant at the New Zealand National Party.
Outside of her work and studies, Madeleine enjoys participating in different sports. Alongside this, she enjoys conducting her own research into policy issues and keeping up to date with the issues of the day both in New Zealand and internationally.
Two supermarkets appealed to the Supreme Court challenging the legality of a decision to uphold Auckland Council’s provisional local alcohol policy.
Under the Sale and Supply of Alcohol Act 2012, councils (excluding regional councils) may adopt local alcohol policies. An alcohol licence cannot be granted or granted on particular terms if it would be inconsistent with the policy.
Before a council can adopt a local alcohol policy, they must adopt a provisional local alcohol policy which includes consultation with the community. The Local Government Act 2002 sets out a ‘special consultative process’ that must be used.
Auckland Council produced a provisional local alcohol policy in 2015. Woolworths and Foodstuffs challenged two elements of this policy in the Alcohol Regulatory and Licensing Authority (“ARLA”):
• Restricting the trading hours of off-licences to 9am to 9pm Auckland-wide (as compared to the Act’s default off-licence hours of 7am – 11pm)
• Restricting the grant of new off-licences by creating a presumption against granting new off-licences in certain areas and a 24 month freeze for new off-licence applications in others
The supermarkets’ challenged the policy under s 81 of the Act, arguing that the trading hours and licence restrictions were unreasonable when considered against complementary statutory objectives harm reduction and promotion of responsible consumption. ARLA ruled that the policy (other than the morning opening hours restriction) was lawful and reasonable.
The supermarkets successfully challenged ARLA’s decision in judicial proceedings brought in the High Court, however the Court of Appeal subsequently quashed the High Court’s decision on all points.
The supermarkets appealed the Court of Appeal decision to the Supreme Court.
Restatement of the law
The Supreme Court took care to clarify what had been left open in prior decisions of ARLA and the courts – namely that the ‘reasonable system of control of the sale and supply of alcohol’ contemplated by the Act did not recognise any standalone ‘right to trade’ existing independently of the Act. Instead, the court held that the starting point was the complementary objectives of that system of control – reducing alcohol-related harm and promoting responsible consumption of alcohol. In this sense, the ability to sell alcohol was a privilege rather than a right, and one which was subject to broader public policy concerns.
Accordingly, when assessing the reasonableness of a provisional local alcohol policy, ARLA was required to assess the impact of the policy on responsible consumption and harm reduction. In doing so, ARLA was not bound to observe a strict approach to proof of harm reduction of the kind that would be expected of a court. Ordinarily, a reasonable possibility of such an effect would be sufficient, however the standard of evidence required would depend on the extent of restriction on the convenience of users seeking to consume alcohol responsibly. A minimal restriction on consumer convenience would require correspondingly minimal evidence of harm reduction, while a significant restriction might require a council to meet a more formal standard of proof.
Contrary to the supermarkets’ submission, this standard was not capable of precise definition. The standard of proof required would be a matter for ARLA’s discretion, which would be subject to judicial review on the same principles that governed other exercises of discretion conferred under statute.
Role of community input
Importantly, the court also noted that it was legitimate for ARLA to adopt a deferential approach to councils when assessing reasonableness. The significant emphasis on consultation while preparing a provision local alcohol policy suggested a strong Parliamentary intent that reasonableness was to incorporate community viewpoints in addition to more objective evidence. This supported Auckland Council’s case that an assessment of reasonableness under s 81 was not a purely evidence-based process.
Was the policy unreasonable?
The court held that ARLA was entitled to conclude that both policy elements were reasonable.
Regarding the restriction of trading hours, the court noted that the impact on consumers was minimal. Off-licence trading hours were 7am – 9pm, only a small change from the statutory default of 7am – 11pm. Given the low impact of the restriction, it was reasonable for the Council to adopt the policy notwithstanding that the evidence of likely harm reduction was not especially strong. A deferential approach to the Council was justified in the circumstances.
The same reasoning applied to the restrictions on new off-licences. Consumer impact was minimised, as the restrictions were confined in their geographic effect, with the targeted areas already sufficiently supplied by existing off-licences. Again, the evidence showed a reasonable possibility of resulting harm reduction even if the evidence was not sufficiently strong. In particular, the council had engaged in careful research to identify and target areas where alcohol-related harm was a particular problem.
The supermarkets’ appeal was dismissed. ARLA was entitled to conclude that both elements of the policy were reasonable, and accordingly the policy remained in force.
The decision is significant in that it restates the pre-existing law and makes it clear that any ‘right’ to sell alcohol is totally subordinate to the policy objectives of the Act. This finding, along with the strong emphasis placed on community views when assessing reasonableness, might be seen as an unwelcome step by business community. In particular, local authorities will be more confident in responding to the wishes of neighbourhood groups and trade competitors in restricting the supply of on and off-licences in their district, restrictions that will ultimately will impact the wallets of responsible alcohol consumers.
For further information on this case or similar issues, please contact Director Brigitte Morten
In October 2021, the Government announced a review into New Zealand’s electoral laws. The goal of the review is to make election rules fairer and clearer. Increased fairness and transparency is intended to increase voter participation.
The review panel will be chaired by Deborah Hart. Members include Dr Maria Bargh, Professor Andrew Geddis, Alice Mander, Robert Peden and Dr Lara Greaves. The panel was appointed by an independent panel of experts.
Expected Time Frame
Between June and November 2022, the panel are expected to release a summary of the issues and a range of potential solutions. They are then expected to conduct broad engagement. A draft report will be released between December 2022 and May 2023. Following further work and engagement, the final report is expected to be presented to the Minister at the end of November 2023 for public release.
Scope of the Review
The Panel’s terms of reference are setout in four key areas for investigation, and provide they cannot investigate online voting, alternatives to MMP, the future of Māori electorate seats, local electoral law or any other fundamental constitutional change (outside of the key areas).
Legislative Framework
The panel will look at the overall design of the legislative framework governing the electoral system. This will involve looking at issues such as whether the current use of instruments such as primary and secondary legislation strike the right balance between certainty and flexibility. In addition, the panel must consider whether fundamental electoral rights should be protected through reserved provisions. A reserved provision is one which requires a 75% majority to pass or a majority of valid votes in a referendum.
Fit for purpose electoral regime
The panel will consider how a fit-for-purpose electoral regime can be maintained for voters, parties and candidates. This involves assessing the underlying policies and rules which govern the electoral system. This is where the panel will consider issues such as lowering the voting age, any permanent changes to restrictions for overseas voting, and potential changes to political financing.
Past recommendations
The panel will consider recommendations made by the Justice Select Committee and the Electoral Commission in response to historic elections. This will include the 2012 Electoral Commissions’ recommendations for improvements to MMP. Considerations include lowering the party vote threshold from 5% to 4% and removing the coattail provision which allows minor parties to bring in additional list MPs if they win an electorate seat but did not surpass 5% party vote.
Parliamentary Term
The panel to will look at altering the length of the parliamentary term. Given both National and Labour committed at the 2020 election to explore a 4 year term proposal, any recommendation made i slikely to be to retain the 3 year term or increase to a 4 year term.
Consultation and Public Engagement
Opportunities for public consultation have not yet been announced as the review is still in its first stages. However, it is expected public engagement will occur at various times between June 2022 and May 2023. There will also be opportunities to submit during the select committee stage of any relevant legislative changes.
Other Relevant Changes
Prior to the final recommendations being made in the final report and the 2023 general election, the government are also making some smaller targeted changes. The recommendations of the Panel will not be implemented until after the 2023general election.
The Government already announced temporary changes to overseas voter eligibility for the 2023 general election. The amount of time a citizen can spend overseas will increase from 3 years to 6 years before becoming ineligible to vote. Similarly, for permanent residents, there will be an increase from 1 year to 3 years.
Following consultation earlier this year, the Government has announced that prior to the 2023 general election, there will be targeted changes made to the rules which govern political donations and loans. The changes will require political parties to disclose:
- Donor identities for any party donations above $5,000.
- The number and total value of non-anonymous party donations under $1,500.
- What proportion of total party donations are non-monetary.
- Any loans to candidates from unregistered lenders.
The Electoral (Māori Electoral Option)Legislation Bill is also before Parliament. If passed, the Bill would allow Māori to freely transfer between the Māori and the general electoral rolls.
The Government has also stated they are considering changes to electoral law following the verdict in the New Zealand First donations case (R v EF and RG [2022] HC)
Next steps
The scope of the review is extensive however, we won’t know the full extent of changes until the first set of issues and potential proposals are released later this year.
If you would like to understand more about electoral law, please contact Director Brigitte Morten
Summary
Wellington International Airport unsuccessfully applied for an interim injunction pausing the New Zealand Transport Authority’s (Waka Kotahi) construction of a signal-controlled pedestrian crossing on Cobham Drive, until their judicial review application could be heard in the High Court.
Background
Let’s Get Wellington Moving (LGWM) is a partnership between Waka Kotahi, Wellington City Council and the Greater Wellington Regional Council. LGWM was established with the responsibility of finding solutions to Wellington’s land transport issues.
Cobham Drive is the primary route from the CBD through to Wellington Airport and the eastern suburbs. LGWM proposed lowering the speed limit and constructing a pedestrian crossing to improve safety. Construction was delayed pending this decision.
The Case
Wellington Airport filed for judicial review of the decision by Waka Kotahi to proceed with constructing a signalised, level crossing on Cobham Drive despite consultation favouring alternative options.
Wellington Airport also filed for an interim injunction to pause construction of the crossing until the substantive hearing.
The purpose of the injunction was to prevent the traffic issues and costs associated with construction occurring before the substantive hearing.
A successful application for an interim injunction requires demonstration of a necessity to preserve a position. The judge may also decline the application due to other discretionary considerations.
Wellington Airport based their case on four main grounds.
Consultation (failure of Waka Kotahi to properly consult)
The Court held that consultation requirements differ depending on circumstances.
Wellington Airport claimed Waka Kotahi had three main obligations. These were to:
LGWM’s consultation documents and business case supported construction of a level crossing in the short-term to provide safety improvements sooner.
Wellington Airport claimed Waka Kotahi failed to provide sufficient information due to errors in the modelling used to produce the business case that consultation was based on. However, the Court found the modelling process is a decision for Waka Kotahi and from a preliminary view, there appeared to be sufficient information provided. A definitive decision on this ground was left for the full hearing.
Wellington Airport also submitted that there were issues in the benefit-cost ratio (BCR) calculation. Any issues were considered unlikely to be significant nor affect the outcome of a decision. The Judge left this for the trial Judge to consider in more detail.
Relevant considerations
Relevant considerations are those which the decision-maker must consider while making their decision.
Wellington Airport submitted LGWM had failed to consider whether the proposal would have prevented the type of fatality seen in 2016 resulting from a pedestrian attempting to cross Cobham Drive. The Court left consideration of relevancy for the full hearing. However, it was noted that safety concerns do arise from the lack of a crossing.
Another consideration identified was whether the crossing would be inconsistent with a Mass Rapid Transport solution and longer-term development. The Court held there is nothing preventing short-term activities being implemented.
Wellington Airport also argued LGWM failed to consider the Traffic Control Devices Rule which governs the installation and operation of traffic controls. Complete consideration was left for the full hearing though, the Court held failure to consider the rule would not solely be sufficient to highlight a fatal error indecision-making.
Unreasonableness
The Judge held the decision failed to reach the high threshold of being “so unreasonable no rational decision maker could have come to it”. Resultantly, there was no further analysis of this issue.
Unlawful fettering of discretion
Wellington Airport argued LGWM failed to exercise its discretion by only considering a signalised level crossing. The Court held that evidence did not support this allegation.
Interim relief and preserving the position of the Airport
The Court held the statutory threshold of reasonable necessity to protect Wellington Airport’s position was not reached. Proposed delays were not deemed significant and construction disruptions would occur regardless of the chosen solution.
The Court noted that discretionary considerations favoured dismissal. Notably, the crossing would be of public interest as it would increase safety for those crossing Cobham Drive.
Result
The Judge made a preliminary assessment that the case is not overwhelmingly strong and therefore was not satisfied the applicant had a position to preserve. The Judge therefore did not grant an interim injunction.
Wellington Airport have since dropped their judicial review application.
For further information on this case or similar issues, please contact Director Brigitte Morten.
