Max Barber is a Solicitor with Franks Ogilvie. He joined the firm in early 2023 and was admitted as a barrister and solicitor in March 2023.
Max joined the firm from BNZ where he spent seven years working across client relations and personal banking. He gained his Bachelor of Laws from Victoria University of Wellington.
An advocate for Pike River families successfully sought access to privileged documents relating to the decision not to prosecute people involved in the mining disaster.
On 19 November 2010, an explosion occurred in the Pike River Mine near Greymouth, claiming the lives of 29 workers.
In 2013, Worksafe made the decision not to prosecute Peter Whittal, the managing director of the owners of the mine at the time of the disaster, conditional upon Mr Whittal making a ‘voluntary payment’ to families of the deceased miners Two family members of deceased miners challenged this decision as an unlawful agreement to stifle prosecution. In 2017, the Supreme Court found for the family members, and the decision was held to be unlawful.
The Supreme Court decision did not lead to prosecution of Mr Harder, so the family members sought to hold officials and lawyers involved accountable through other means. During this process, they were assisted by Mr Harder, a former lawyer who was the applicant in this case.
Harder made an Official Information Act request for the Solicitor General’s legal advice to Worksafe. The request was declined under on the ground that this information was privileged. This decision was upheld by the Ombudsman.
In the present proceeding, the Harder then sought access to communications between counsel who negotiated the ‘voluntary payment’ so they could further appeal to the Ombudsman to reconsider their decision. Worksafe provided some documents but withheld others on the basis that they were privileged under the Evidence Act 2006.
Privilege is the concept that individuals have an absolute right of confidentiality in certain communications. This usually covers communications made in defined circumstances where the public interest is conclusively presumed to favour confidentiality over disclosure of relevant information. The archetypal example is legal professional privilege, where the ability to speak freely and frankly when seeking legal counsel is deemed more important than the benefit of obtaining relevant evidence.
When documents are privileged, it means they cannot be used as evidence in court or released under the Official Information Act (unless that privilege is waived).
This case concerned materials that Worksafe alleged were covered by sentencing negotiation privilege. These documents are privileged in order to promote parties to reach an agreed sentence in confidence that any admissions or discussions will not be used as evidence against them later. Promoting confidence in this area is desirable to minimise court delays and costs when processing criminal cases, thereby improving the efficiency of the court system. It is also necessary to spare victims and other participants from lengthy and occasionally traumatic involvement in criminal proceedings.
Unlike other forms of privilege that are virtually absolute (such as legal professional privilege), sentencing negotiation privilege is subject to a public interest balancing exercise. Accordingly, the court is enabled to order documents covered by sentencing privilege to be disclosed if (among other things) it would be contrary to the interests of justice to withhold it. By contrast, documents covered by legal professional privilege can usually only be disclosed if the privilege is used to perpetrate or conceal a crime.
In this case, it was not seriously disputed that the privilege applied, as that the communications occurred pursuant to negotiating the voluntary payment, an integral part of the prosecution decision. The key issue in the case was whether upholding the privilege was contrary to the interests of justice.
The court noted the value of the privilege in the administration of justice, which arose from relieving victims from the burden of testifying, reducing court and prosecution time and costs, and providing a structured environment in which the defendant could admit responsibility for offending. However, given the length of time since the Prosecution decision, these factors were given significantly less weight than normal. Another crucial factor was that Mr Harder already had access to similar documents obtained through other channels. Worksafe were only withholding the documents at issue in the case out of general principle.
In this context, the court held that the interests of justice were better facilitated by releasing the documents. Refusing to do so could only have the effect of encouraging false speculation and misunderstanding.
The court ordered that Worksafe disclose the privileged communications to Mr Harder.
Strictly construed, this case only has value as a legal precedent in sentencing negotiations. However, construed more broadly, it acts as an important reminder that government officials do not have an unfettered power to determine that documents are privileged and thereby withhold them from the public. The High Court in this case sent a clear message when officials should not be too ready to resort to privilege as a means of withholding information they would otherwise be required to make available under the Official Information Act. Applicants for official information can be confident that the courts will effectively scrutinise claims of privilege that do not reflect statutory and public policy factors underlying the privilege.
For further information on this case or similar issues, please contact Director Brigitte Morten
A consumer advocacy group successfully challenged directions by the Director-General of Health ordering 14 local councils to fluoridate their water supply.
New Health NZ is an incorporated society that describes itself as a ‘consumer-focused health organisation”. It is opposed to water fluoridation.
In 2021, Parliament enacted Part 5A of the Health Act 1956, which enabled the Director-General of Health to issue directions requiring local councils to fluoridate their water supply. Nothing in Part 5A required the Director-General to consider whether such directions limited the right to refuse medical treatment under s 11 of the New Zealand Bill of Rights Act 1990 (“BoRA”) and whether any such limitation was reasonably justified.
On 27 July 2022, the Director-General gave directions to 14 local authorities to fluoridate their drinking water supply to a specified concentration (“Orders”). The Director-General did not explicitly consider the BoRA implications of the decision as they had received legal advice that they were not required to do so.
The New Health NZ filed judicial review proceedings challenging the legality of the orders. Among other things, the plaintiff argued that the Director-General had failed to turn his mind whether the orders were compliant with BoRA rights or were reasonably justified limitations of those rights.
Did the Director-General have to turn their mind to BoRA matters when making the Orders?
At the time of the case, it was unclear whether public officials exercising discretionary powers were obliged (as a matter of decision-making procedure) to consider the BoRA impacts of their decisions. The parties agreed to address this preliminary legal question separately from the main proceeding.
The Crown, in their arguments, relied heavily on UK authorities, in particular the Denbigh decision of the House of Lords. In that case, the court rejected a requirement for decision-makers to explicitly consider the relevant human rights law in their decisions. The court, they reasoned, already had extensive powers to review the merits of administrative decisions for compliance with human rights law. An additional procedural requirement to consider such rights added nothing to the court’s oversight powers, and risked imposing a costly tick-box exercise on public officials.
In this case, Radich J held that the legal context in New Zealand was different to that in which Denbigh was decided, and agreed with New Health NZ’s argument that public officials not only had a duty to comply with the BoRA, but were also required to consider how their decisions impacted on BoRA rights.
Contrary to the Denbigh court (which had emphasised administrative efficiency), Radich J held that the consideration requirement would enhance rights by promoting a ‘culture of justification’ among public decision-makers – a culture where officials were obliged to explicitly consider how their decisions affected rights and give good reasons for departing from those rights.
How does the requirement apply?
Radich J noted that there was now effectively a two-stage approach for assessing the relevance of BoRA to discretionary public power.
First, the court would assess whether the decision-maker had turned their mind to appropriate BoRA matters. Failure to do so would render a decision unlawful in circumstances where BoRA matters were a relevant consideration.
Second, the court would consider whether a decision did in fact breach a BoRA right and, if so, whether that breach was reasonably justified. Where the decision breached the right without reasonable justification, the court could grant relief in accordance with remedies established in prior BoRA case law.
Asher J noted that there would ordinarily be significant overlap between the two-stages, and given the overlap, it would be expected that a decision-maker’s consideration of breach of the right and justifications for the breach would inform the courts analysis at the second stage.
The level of consideration would vary depending on the nature of the decision, the decision-maker, and the degree of relevance of BoRA rights to the decision. The court emphasised that consideration of BoRA rights was a matter of substance rather than a mere formality.
It was clear that the Director-General had never turned his mind to BoRA considerations when issuing the directions, and the decision was accordingly unlawful. However, the court declined to grant relief, instead leaving it to the parties to agree on next steps.
The case has significance to the public sector as a whole. Decision-makers are now required to address BoRA head on when exercising their powers. It remains to be seen whether this will promote a ‘culture of justification’ that enhances protection of fundamental rights, or whether it will merely add an unnecessary formal burden to administrative decision-making.
Due to the potentially wide-ranging impacts, there is a strong possibility that the Crown will appeal the decision.
To understand more about this issue, please contact Director Brigitte Morten
It is common in New Zealand’s MMP system for a multiple political parties to need to enter into an arrangement to secure government. In order to form government, a political party must be able to demonstrate to the Governor-General that they have the confidence of House. Therefore, a party must be able to show they can get a majority of votes in a confidence motion, and to get a budget through parliament.
To do this, the secure governing agreements with minor parties. These are often referred to as ‘coalition agreements’, but not all agreements between parties are actually coalition agreements.
Types of governing agreements
Governing agreements allow governments made up of a variety of political parties to act collectively. The Cabinet Manual specifically states that the decision to form government is political. There are no rules on the form they take, but the most common types of governing agreement to date have been coalition agreements and confidence and supply agreements.
Coalition agreements involve two or more parties forming a single government called a coalition government. The agreements will set out an overall government policy and ministerial appointments, both of which are agreed through negotiation between the parties. All parties to the agreement will typically have Ministers inside Cabinet, as well as possibly outside Cabinet.
In a coalition government, Ministers inside Cabinet will be bound by collective responsibility in respect of all government policy, which restricts their ability to speak out in accordance with party policy or the preferences of their voting base. This can be a significant electoral drawback for minor parties, however this can be offset by ‘agree to disagree’ clauses(see below).
Notable coalition governments in New Zealand include the2017 Labour-New Zealand First coalition government (which also relied on a confidence and supply agreement with the Green Party) and the volatile 1996 National-New Zealand First coalition government, the first government under MMP.
Confidence and supply agreements are a looser arrangement. Under this kind of arrangement, a minor party will agree to vote in the House with the governing party on matters deemed to be matters of confidence in the Parliamentary Standing Orders and on matters of supply such as the annual budgets and other appropriations necessary to fund the government. If a governing party fails to maintain confidence and supply, it is vulnerable to being ousted from government by a vote of no confidence in the House.
Minor parties usually provide this assurance in exchange for policy concessions from the governing party and/or ministerial appointments. The latter may be positions inside or outside of Cabinet, but are usually outside of Cabinet. Ministers outside of Cabinet are only bound by collective responsibility in respect of their ministerial portfolios.
Confidence and supply agreements are a trade-off for minor parties. Being freed from collective responsibility on most matters means they have greater means of maintaining their party identity and the support of their voting base. However, this greater freedom can come with a diminished ongoing influence on wider policy due to lack of representation in Cabinet.
The majority of governments since the advent of MMP have been minority governments reliant on confidence and supply from minor parties. The Fifth National Government (2008 – 2017) did not form any coalitions relying on confidence and supply agreements with minor parties throughout.
Minor parties have obtained several notable policy victories over the years through confidence and supply agreements. Examples include the repeal of the Foreshore and Seabed Act under the National/Maori Party agreement of 2011, and the Climate Change (Zero Carbon) Amendment Act under the 2017Labour-New Zealand First/Greens agreement.
‘Agree to disagree’ arrangements
Under both coalition agreements, and confidence and supply agreements, the Cabinet Manual allows parties to ‘agree to disagree’. These agreements allow for Ministers to depart from collective responsibility and speak as party members on certain issues agreed between the parties. The issues can be agreed upfront, or the parties can agree to determine relevant ‘agree to disagree’ issues on a case by case basis. The 2017 Labour-New Zealand First/Greens confidence and supply agreement contained an example of the latter.
What are the consequences for departing from a governing agreement?
Governing agreements and collective responsibility are not legally enforceable. The extent to which they are enforced is an inherently political decision.
However, this does not mean that they can be breached with impunity. The agreements ensure that parties with often divergent policies can function together as a single unit. The decision of whether to break a governing agreement, by any party, is usually determined by the significance of the breach of the agreement and the public appetite for this breach. If this occurs, there is a risk of the government suffering a vote of no confidence in the House, with the usual result being another election.
Astute politicians will be aware that the electorate does not like instability, and may judge parties involved in a collapsed government harshly. Accordingly, there is a significant incentive to ensure governing agreements remain substantially complied with.
The collapse of the National/New Zealand First coalition in1998 provides an illustrative example. The coalition had formed following the first MMP election in 1996, and relations between the two governing parties were fraught from the start. These issues culminated with National’s proposed sale of government shares in Wellington Airport, prompting New Zealand First leader Winston Peters and several New Zealand First members exiting Cabinet in protest.
This defiance of the coalition agreement and collective responsibility led to the collapse of the coalition government. Following this, National managed to govern for another year, with the support of minor parties helping to avert a no confidence vote. However, at the 1999 election, National was ousted from government by a Labour/Alliance coalition government, and New Zealand First lost almost half its seats, illustrating the potential pitfalls of departing from governing arrangements and collective responsibility.
To understand more about this issue, please contact Director Brigitte Morten
