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.
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
A political party sought an order requiring the Electoral Commission to accept candidate nominations after the statutory deadline had expired.
The applicants, NZ Loyal, were a registered political party running in the 2023 general election. The respondent, the Electoral Commission, is an independent statutory body charged with conducting elections in accordance with the Electoral Act 1993 (“Act”).
The Act governs, among other things, the nomination pathways for electoral candidates. There are two nomination pathways.
The first is a personal nomination process, where any qualified person can be nominated by two or more members of their electoral district (“First Pathway”). The second process requires the secretary of a registered political party to submit candidates in bulk (“Second Pathway”).
Crucially in this case, statutory deadline is earlier for nominations under the Second Pathway. Nominations under the First Pathway must be submitted by noon on the nomination date, while Second Pathway deadline is at noon on the day before the nomination date. The Commission is required to reject any nominations received after the relevant deadline under s 128(1)(b) of the Act.
The nomination date is set in the writ calling the election. The writ for the 2023 general election was issued by the Governor-General who set the nomination date as 15 September.
Ms Smith, the party secretary for the applicant, submitted nominations for three candidates to the Commission under the Second Pathway before noon on 14 September. She then notified the Commission that she would submit a number of other nominations under the First Pathway prior to noon on 15 September, which she perceived to be the applicable deadline.
However, s 146C(2) of the Act prohibits the Commission from accepting nominations under the First Pathway if they have received notice from a party secretary that they intend to use the Second Pathway. The Commission informed Ms Smith of this, and that they would not accept any nominations after the noon 14 September deadline applicable to the Second Pathway.
The Commission informed Ms Smith that the nominations would not be accepted, as she had given notice that she would be following the Second Pathway, meaning the First Pathway was no longer open to her. The Commission informed her of the noon 14 September deadline applicable to the Second Pathway.
The applicant filed judicial review proceedings in the High Court arguing that the Commission’s “decision” not to accept the additional candidates was unlawful. To preserve the status quo before trial, the applicant sought an interim order requiring the Commission to accept and publish the candidate list to reflect the nominations after noon on 14 September.
The case proceeded on the basis that all the facts alleged by the applicant were proved, so that a preliminary legal question could be resolved, namely whether the High Court could grant the order sought by the applicant.
The court rejected the applicant’s claim for interim relief.
Parliamentary sovereignty
The primary reason for doing so was that the order sought would cut against the nomination deadlines, the nomination deadline being set directly in the Act rather than by the Commission.
The court affirmed that Parliamentary sovereignty is the fundamental constitutional principle in New Zealand law. It was confirmed that the courts have no jurisdiction to modify or ignore an Act of Parliament.
The court noted that its judicial review jurisdiction was an extension of Parliamentary sovereignty, embodying the court’s constitutional role to police exercises of discretionary power delegated by Parliament to the executive government and other public bodies. However, judicial review was not available here because the Commission was not exercising a discretionary power. Instead, it was simply acting in accordance with the terms of its empowering legislation.
For the court to have ordered that the Commission act in contravention of these statutory deadlines would require the Commission to contravene its empowering legislation. The court had no jurisdiction to make such an order.
The court went on to reject several technical arguments to the effect that the statutory deadline for nominations under the Second Pathway was noon 15 September rather than noon on the previous day.
The Parliamentary sovereignty point decided the case.
However, the court went on to note following clear Parliamentary intent was especially important in the context of the Act. The court noted that the Act recognises that the integrity of the electoral system is fundamentally important to maintaining liberal democracy in New Zealand. For such a system to survive requires the electoral system to have legitimacy among the public.
One aspect of maintaining public confidence in the electoral system is to ensure that elections are conducted impartially. In this context, allowing the Commission a discretion as to who received lenience (and who did not) regarding the deadlines for nominations would have the opposite effect. Justified or not, questions could be raised about the Commission giving special treatment to certain parties over others.
In that context, it made sense for deadlines to be set in the Act, with the Commission having little discretion in how it carried out its role.
The court rejected NZ Loyal’s claim for interim relief.
The case provides a timely reminder that the doctrine of Parliamentary sovereignty remains the fundamental constitutional principle in New Zealand law.
For further information on this case or similar issues, please contact Director Brigitte Morten
