Max Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
Summary
Three vaping related businesses were unsuccessful in challenging regulations setting the maximum permissible nicotine concentration in vaping products.
Background
In 2020, Parliament amended what is now the Smokefree Environments and Regulated Products Act 1990 (“Act”) by including vaping-related products as ‘notifiable products’ under the Act. Section 84(1)(a) of the Act allows the Governor-General to make regulations prescribing safety requirements for notifiable products.
The applicants were three related companies that manufacture, import and sell vaping products.
On 11 August 2021, The Smokefree Environments and Regulated Products Regulations 2021 (“Original Regulations”) came into effect. The applicants had challenged the validity of these regulations in earlier proceedings.
While these proceedings were afoot, the government began enacting regulations to correct defects in the Original Regulations (“Amendment Regulations”) that had been brought to their attention as a result of the legal proceedings. The Amendment Regulations reduced the maximum allowable nicotine concentration in certain vaping products from 50mg/mL to 28.5mg/mL.
Upon learning this, the applicants filed judicial review proceedings claiming that the Amendment Regulations were unlawful.
The case
The Amendment Regulations are secondary legislation. Secondary legislation is law made by someone other than Parliament, usually under the authority of an empowering Act of Parliament. The making of secondary legislation is amenable to judicial review in the same way as any other exercise of power by a public decision-maker.
When the Governor-General makes secondary legislation, they act on the advice of the responsible Minister, formally conveyed through the Executive Council.
The applicants’ challenge to the Amendment Regulations was based on a number of judicial review grounds. Broadly, these were based on inadequate consultation and a lack of evidence of a link between nicotine concentration in vaping products and resulting user harm.
Inadequate consultation
The applicants claimed that the Minister was required to consult with them prior to making the Amendment Regulations (as representatives of the industry to be regulated) and had failed to do so. They also alleged that their consultation with various other groups had been inadequate.
The court held that there was no legal duty to consult in the circumstances. They affirmed that there was no general duty to consult in the absence of express statutory language, other than in cases where a particular individual had a legitimate expectation of being consulted(as they have special circumstances that differentiates them from the general public).
As the Act said nothing about consultation when making regulations under s 84(1)(a) (in contrast to other powers under the Act which did require consultation), the court inferred that Parliament did not intend a consultation requirement. The circumstances of the applicants were not sufficient to give rise to a legitimate expectation of consultation.
Accordingly, the applicants’ claim failed on this ground. Consultation was described as a ‘healthy practice’ but not a mandatory requirement in the circumstances.
Lack of evidence of correlation between nicotine concentration and harm
The applicants advanced a number of grounds relating to the Amendment Regulations being contrary to expert evidence. The applicants argued that the expert position was that there was no correlation between nicotine concentration in vaping products and the level of resulting harm.
The applicants argued that the Governor-General had made the regulations without considering the expert evidence they relied on, which they argued was a mandatory relevant consideration. The court rejected this argument, holding that Governor-General (and Executive Council which advised them) were concerned with high level public policy only, and were not obliged to consider technical expert evidence when making secondary legislation.
The applicants made a related argument that the Amendment Regulations were unreasonable or were ultra vires (‘outside the power of’) the Act because they went against the weight of expert evidence. If, as the applicants alleged, there was no link between nicotine concentration and harm, the Amendment Regulations could not rationally fall within the scope of the power to ‘prescribe safety requirements’ for vaping products.
The court emphasised that judicial review ground of ultra vires was concerned with whether the secondary legislation complied with the empowering Act, not the court’s assessment of its merit. Secondary legislation would exceed the scope of the empowering Act if it was not rationally connected to the purpose of the empowering provision. However, if this unexacting requirement is satisfied, a court would not entertain a challenge to secondary legislation merely because it viewed the evidence as pointing in a different direction.
In this case, the court held that this rationality requirement was satisfied. The Minister had acted in good faith and the evidence was “capable of supporting” a link between nicotine concentration and harm. Accordingly, the Amendment Regulations “were not totally irrational” and the applicants’ challenge on this ground failed.
Result
The court rejected the applicants’ claim on all grounds and the Amendment Regulations remained in force.
The decision clarifies some important points about judicial review of secondary legislation, including that:
For further information on this case or similar issues please contact Director Brigitte Morten
Summary
The High Court granted interim orders preventing the Attorney-General from appointing a Judicial Conduct Panel to investigate allegations of judicial misconduct by a District Court Judge.
Background
Under our constitutional system, the independence of the judiciary is protected by providing security of tenure for individual judges. However, if the public is to retain confidence in the system, there is a countervailing need to ensure there is accountability for judicial misconduct.
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) seeks to balance these conflicting objectives by establishing a multi-step process that must be undertaken before a Judge can be removed from office.
The process starts with the Judicial Conduct Commissioner. On receipt of a complaint, the Commissioner has discretion to take one of several actions. In cases where the Commissioner is satisfied that it is necessary to investigate a complaint that, if proven, could warrant consideration of removal of the judge, they may recommend that the Attorney-General convene a Judicial Conduct Panel to investigate the matter.
The Attorney-General may then decide to follow all or part of the Commissioner’s recommendation, and convene a Panel to investigate. Following an investigation, the Panel may recommend to the appropriate decision-maker to remove the Judge. The Attorney-General’s decision and the Panel’s investigation is determined by the scope of the Commissioner’s initial investigation.
In December 2024, several media reports surfaced alleging that District Court Judge Ema Aitken and her partner verbally attacked Deputy Prime Minister Winston Peters and other New Zealand First members at a Christmas party at Auckland’s Northern Club.
A complaint was referred to the Commissioner by the Attorney-General. On 23 January 2025, the Commissioner exercised their powers under the Act to recommend to the Attorney-General that a Judicial Conduct Panel be appointed to investigate complaints about Judge Aitken’s conduct at the Northern Club Christmas Party
On 10 February 2025, before the Attorney-General convened the Panel, Judge Aitken filed judicial review proceedings alleging that the Commissioner’s recommendation was unlawful. At the same time, she sought interim orders preventing the Attorney-General from acting on the recommendation until the judicial review claim had been determined.
The case
To obtain interim orders, Judge Aitken had to demonstrate that they were necessary to protect her position, and that it was appropriate for the court to exercise its discretion to grant them.
Preservation of position
The court rejected Judge Aitken’s argument that she had a position to preserve solely because the trial court might decide the Commissioner’s decision was unlawful at trial. She was required to establish some kind of prejudice that would arise if the interim orders were declined and she went on to succeed at trial.
However, the court also rejected the Crown’s narrow argument that the only prejudice that could arise to a judge was potential removal from office (which could not possibly occur before trial).
The court noted that the Attorney-General’s decision to appoint a Panel following the Commissioner’s recommendation was a serious one. While convening the Panel was not an inevitable step to a Judge’s removal, the mere fact of an appointment was a serious step that could increase public pressure on the Judge and potentially compromise their independence.
On this basis, the court accepted that there was a potential prejudice to Judge Aitken’s natural justice rights for having to respond to the Attorney-General’s decision to convene the Panel, when that decision was potentially affected by the Commissioner’s error of law.
Discretion
In exercising its discretion, the court considered the merits of Judge Aitken’s case, the nature of the statutory power, and the balance of convenience.
The merits of the case tentatively favoured granting the orders, with the court stating that Judge Aitken’s claim did not appear ‘entirely lacking in merit’.
Public policy considerations pulled in different directions and were a neutral factor in granting relief. While granting interim orders might delay the statutory process and undermine the effectiveness of the complaints process, allowing a potentially unlawful process to continue until final determination could undermine the Act’s countervailing objective of protecting judicial independence.
The balance of convenience was the decisive consideration.
The prejudice to the Crown if the orders were made and they went on to succeed at trial was minimal. The hearing had been scheduled for the following month, meaning as soon as judgment was issued, the Attorney-General would be able to proceed confidently.
By contrast, Judge Aitken stood to suffer serious prejudice if the orders were declined but she went on to succeed at trial – she would be required to provide a response to the decision to convene the Panel (which could compromise her natural justice rights) and there was a likelihood of adverse publicity which could affect the undertaking of her judicial functions.
As the greater potential prejudice lay with Judge Aitken, the Court exercised its discretion to grant the orders sought.
Result
Interim orders were granted declaring that the Attorney-General ought not take any further action consequential on the Commissioner’s decision until further order of the court.
The hearing of the main judicial review proceeding was heard in mid-March 2025, with the court yet to issue judgment.
The case illustrates the delicate balance the court must maintain in the rare cases of determining the legality of the judicial misconduct process under the Act. The court in this case erred in favour of protecting the natural justice rights of Judges as a means of protecting judicial independence, suggesting a relatively low threshold for obtaining interim orders in the rare instance of proceedings under the Act.
For more information on this case or similar issues please contact Director Brigitte Morten
A member of Tuhoe successfully challenged a decision to demolish a number of huts in Te Urewera.
In 2013, the Crown and Tuhoe signed a settlement deed that agreed, among other things, that Te Urewera would have legal personality rather than merely being a national park. Te Urewera Act 2014 (“Act”) gives effect to the settlement deed, and the deed of key importance in interpreting the Act.
The Act specifies that Te Urewera is governed by Te Urewera Board (“Board”), established under s 16 of the Act. Board members were a mix of Tuhoe - Te Uru Taumatua trustees (“TUT”) and appointees of the Minister of Conservation. The Director-General of the Department of Conservation and the chief executive of TUT are responsible for operational management of Te Urewera.
The Act requires that that TUT and DOC must prepare an annual plan for the “following year” to provide for the operational management of Te Urewera. A draft plan must be approved by the Board under Schedule 2 cl 24 of the Act before it can become final.
The Crown retains property rights in certain improvements in the area, including the hut network, but can only take certain actions in respect of them (including demolition) in accordance with the annual operational plan. The Act provides certain residual powers to the Crown to act where no annual operational plan has been agreed.
No annual operational plan was approved for the 2021/22 and 2022/23 operational years due to disagreements between the Crown and TUT.
In 2022, the Board announced its decision to demolish 43 huts in Te Urewera. Wharenui Tuna (a local hapu member who had used the huts for recreation and the gathering of food since he was a child) filed judicial review proceedings in the High Court. He claimed the Board and the Crown acted unlawfully in their decision to destroy the huts, as did TUT in acting on that decision (“Respondents”).
Tuna was granted an interim order in an earlier proceeding, which stopped any further demolition activity pending a decision in the case. Nonetheless, several further demolitions did occur, although it is yet to be discovered who was responsible.
On 24 August2023, after the interim order was granted, the respondents attempted to retrospectively validate the demolitions by approving annual operational plans for the relevant years.
Mr Tuna argued that the decision to demolish the huts was unlawful on several grounds. The actual demolition of the huts by TUT was similarly unlawful as it had been based on the unlawful demolition decision.
Failure to act in accordance with annual operational plan
Mr Tuna argued that the demolition decision had not been in accordance with a prevailing annual operational plan and was therefore unlawful.
It was not disputed that there had been no annual operational plan in place at the time the relevant actions had been taken. However, the Crown argued the plans published after the decision had retrospectively validated the decision.
The court accepted Mr Tuna’s argument that the absence of an annual operational plan meant that the demolition decision (and subsequent demolition) was unlawful. The existence of a plan was not a technical matter. The Crown’s right to exercise its powers as the owner of the huts was subject to authorisation by a relevant plan.
The court was particularly scathing about the purported retrospective adoption of the plans, which it noted was endorsed by the Crown 367 days after the end of the year to which it related. A retrospective approach was at odds with the use of future-oriented language in the Act such as “plan” and “the following year”. Additionally, the need for such a plan was not established given that the Crown could still act in relation to Crown property in the area under residual powers set out in the Act.
Breach of principles of the Act
Section 5 of the Act requires that persons performing functions under the Act must act to preserve ecological systems and biodiversity, freedom of entry and access to the area, and Tūhoetanga.
Mr Tuna argued that the decision breached s 5, because it resulted in a reduction of facilities that could be used by DOC in their biodiversity functions, as well as impeding the public from tramping safely in the area. The Crown argued that this ground should fail as the principles in s 5 were aspirational rather than legally binding.
The court agreed with Mr Tuna, holding that the imperative language used in s 5 (“must”)strongly suggested that a legal obligation was intended. While the court accepted that the Board and the Crown were entitled to significant leeway as to how they upheld these principles, there was no leeway to give in this case. Neither the Crown nor the Board had attempted to justify how the demolition decision would uphold the s 5 principles. The court would have given such a justification significant weight in line with the principle of deference had it been advanced.
Accordingly, the demolition decision was unlawful on this ground.
Failure to consult
The court rejected Mr Tuna’s argument that the Board and TUT were required to consult before the demolition decision. No party had a legitimate expectation of being consulted in relation to the decision, and there was no express or implied requirement for consultation in the Act. The presence of express consultation requirements in relation to other matters under the Act pointed strongly against an implied requirement of consultation in this case.
Additionally,this case did not fall within the rare class of case where fairness required consultation to take place.
The court did not decide on the appropriate relief and costs, ordering a further hearing. Submissions for the Crown were due in March 2024, but a hearing date has yet to be allocated.
Pending the relief hearing, the interim order will remain in place.
The case is a notable example of a senior court providing significant criticism of Crown actions during litigation. The court was particularly unimpressed with the Crown’s contention that annual operational plans were merely a ‘technical’ requirement and their attempt to validate their actions through adopting a retrospective plan.
Update: The parties in this case have since come to an agreement. The press release for this agreement can be read here.
