Max Pakinga-Barber

Buying alcohol over the Easter break can often cause confusion. The Sale and Supply of Alcohol (Sales on Anzac Day Morning, Good Friday, Easter Sunday, and Christmas Day) Amendment Act 2026, which takes effect on Good Friday 2026, has relaxed some prior Easter trading rules.  

Here are four things you need to know so you don't get caught dry:

1.      Most off licences can’t sell alcohol on Good Friday or Easter Sunday. That includes all supermarkets, bottle stores, wineries, breweries and anywhere that sells alcohol to take away.

2.       There’s an exception to off-licence rules for wineries. These businesses are allowed to sell wine off-licence from their cellar door if they make the wine on site or harvest the grapes used to make the wine on site.  

3.      On licences like bars, restaurants, and cafes with a licence to sell alcohol to be drunk on-site can sell alcohol on Good Friday and Easter Sunday within their authorised opening hours. Old restrictions that required consumers to be a guest at the premises or be “on the premises to dine” to be eligible to be served alcohol were abolished in 2026.  

4.      Trading on Saturday and Monday is not affected.

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Summary

Three vaping 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 (“Companies”).

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 those proceedings were afoot, the government began a process to clarify an ambiguity in the Original Regulations. It was unclear under those regulations whether the maximum allowable nicotine concentration in a class of vaping products was 50mg/mL or 28.5mg/mL.

The Minister of Health submitted two papers to Cabinet in mid-2023. The papers set out the details of targeted consultation undertaken by officials (which included consultation with vaping industry participants) and options analysis. The papers recommended that the regulatory limited be set at 28.5mg/mL.

Cabinet approved the recommended changes to the regulations on 21 August 2023, and they came into effect the following month (“Amended Regulations”).

Upon learning this, the Companies filed judicial review proceedings claiming that the Amended Regulations were unlawful. Broadly, their challenge focused on inadequate consultation and a lack of evidence of a link between nicotine concentration in vaping products and resulting user harm.

The High Court rejected the Companies’ claim on all grounds. The court found no duty to consult, and held that the evidential criticisms, while framed a legal errors, were in substance a challenge to the merits of the decision (and therefore outside the scope of judicial review).

The Companies appealed to the Court of Appeal.

The case

The issues on appeal were whether the Ministry had a duty to consult on the Amended Regulations, whether they had consulted adequately, and whether the decision was rendered unlawful by the allegedly inadequate advice provided by officials.

Duty to consult

The Companies accepted there was no duty under the Act to consult but argued a common law duty to consult arose due to the significant public health and commercial impacts of the Amended Regulations. Alternatively, they argued the Ministry’s voluntary consultation created a duty to do so adequately.

The court squarely rejected that the Minister had any duty to consult. Formally, the Amended Regulations were made by the Governor-General acting on the advice of the Executive Council – following a decision of Cabinet. Previous case law held that it would highly unusual for consultation to be legally required for Cabinet decisions like making regulations. If consultation was intended by Parliament, the Act would have said so.

The court also rejected the claim that the Ministry’s voluntary decision to consult imposed legal duties on the Ministry as to how that consultation was undertaken. Consultation was good governance practice. Imposing legal duties on voluntary consultation would strongly disincentivise the practice.

Finally, the court held on the evidence that even if a duty to consult existed, the Companies failed to demonstrate the process was inadequate.

Inadequate advice

Relying on the earlier Court of Appeal decision Air Nelson Ltd v Minister of Transport, the Companies argued that the Amended Regulations were unlawful as they were based on official advice that was neither fair, accurate, nor adequate. The advice, the Companies claimed, was so on-sided that only one rational outcome was possible.

The court held that the Companies had mischaracterised the Air Nelson decision. That case concerned advice that failed to address matters that the Minister was legally required to consider. It did not establish a principle that the decision-maker must have all conflicting views before them when making decisions.

In this case, Cabinet made a high-level policy decision as a time-limited but democratically accountable body. It was not acting as a court or tribunal, but rather as a body making high level public policy in the general public interest. In such situations, individuals had limited rights to have their specific views put before the decision-maker.

In any event, the court found that the advice to Cabinet was sufficiently balanced. The Companies’ detailed criticisms of minutiae in official advice were matters for debate, not failures to consider mandatory considerations. The Ministry was not obliged to present industry or other specific arguments in detail and Cabinet was not required to consider them; it was permissible for Cabinet to deal with such matters at a macro level. Unlike in Air Nelson, the Minister and Cabinet were adequately informed of opposing views.

Result

The court dismissed the appeal and the Amendment Regulations remained in force.

The decision affirms important administrative law principles, including that the courts:

1. are unlikely to recognise non-statutory rights to consultation, particularly in high-level policy decisions; and

2. will not otherwise impose exacting procedural requirements on high level policy decisions, particularly those of Cabinet.

For futhur informatiion on this or similar cases please contact Director, Brigitte Morten

The Regulatory Standards Act 2025 (“Act”) sets standards of legislative quality and provides for assessment against those standards. Most of the Act comes into force at a date set by the Governor-General, but no later than 1 July 2026.

This Act has been the subject of much controversy. Despite critics claiming it would restrict Parliament’s power to legislate, the Act is not this dramatic in effect. Its procedures are intended to promote voluntary compliance with standards of good law-making, rather than imposing those standards by force.

Because of this, Act is likely to be a particularly useful tool for advocacy organisations and others seeking to promote law reform.  

What the Act does

Scope

The Act mainly achieves its purpose are through the broad principles of responsible regulation set out in s9 of the Act (“Principles”).

The Principles are varied, ranging from markers of good law-making like clarity and cost/benefit analysis, constitutional conventions recognising the importance of judicial review and that legislation should not apply retrospectively, and more political principles like protection of individual liberty and providing compensation for property impaired by legislation. The Principles are likely to be fleshed out in guidance issued jointly by the Minister for Regulation and the Attorney-General under s 26 of the Act.

The Principles apply to most legislation and regulation. There are limited exceptions, including Treaty settlements, budget legislation, and rules of court (among others).

Benchmarking new legislation

Government legislation and amendments introduced to Parliament after commencement of the Act will require assessment against the Principles. The same applies to all regulation made after that date, unless certain limited exceptions apply. Member’s bills, local bills, and private bills are excluded. The new process requires a “consistency accountability statement” that sets out consistency of the proposed legislation or regulation with the Principles. If inconsistency is found, the responsible person(usually a Minister) must provide a statement with the reasons why.

Failure to comply with the Principles does not mean that legislation cannot progress. But the benchmarking requirements ensure that there is political accountability for failure to comply with the Principles.

Reviewing existing legislation

Existing legislation can also be assessed against the Principles. This can happen in three ways.

Inquiries by the Regulatory Standards Board

The Regulatory Standards Board (“Board”) is tasked with inquiring into and reporting on existing primary legislation for consistency with the Principles. It can also look at existing regulation in limited circumstances.

The public can trigger an inquiry by making a complaint, although the Board does not have to launch an inquiry in response to every complaint. Inquiries must be determined without a hearing.

Upon completion, the Board must report its findings to the Minister for Regulation, and to the government agency and Minister responsible for the legislation. The report is also made public.

Departmental reviews

Government can initiate reviews for legislation they administer.

If a review is undertaken, the agency reports on consistency with the Principles. For legislation, the responsible Minister must present the assessment and explanation to Parliament, and what (if anything) the government plans to do about it. For regulation, the agency must publish the report, along with any future action proposed to address inconsistency. There is no legal requirement for the relevant person to act on any proposed actions to address inconsistencies identified during a review.

Regulatory system reviews

The Minister for Regulation can initiate a review of any regulatory system. While “regulatory system” is undefined, such reviews are likely to have a broader ambit than departmental reviews of legislation.

The Ministry for Regulation has powers to require information from various public bodies and officials to carryout these reviews.

What the Act does not do

Contrary to some commentary on the Bill, the Principles do not affect the validity of non-compliant laws. They do not constrain Parliament’s powers or those acting under delegation from Parliament, from passing legislation.

The legal rights and obligations of individuals are not affected by the Principles.

The Act does not provide a mechanism for complaints about the impact of legislation (or decisions under legislation) on individual interests. The Board is expressly prohibited from considering individual outcomes or impacts when undertaking its inquiry functions.

The advocacy opportunity

The Act can generate and maintain momentum for law reform.

The Act provides two essential tools for this:

1.      Inconsistency reports and explanations, and

2.      The Board inquiry procedure.

While the regime is new and untested, there are some law reform projects that will clearly benefit from these tools.

Poorly drafted legislation

The Board complaints procedure provides a strong mechanism to draw attention to poor or uncertain drafting. Relevant principles include that legislation should be clear and accessible, and the cost/benefit principle. The Board is expressly empowered to consider how legislation has applied in practice when inquiring under cost/benefit Principle.

Fees and levies

Fees and levies are set on a cost-recovery basis, and payers are selected on either a ‘beneficiary pays’ or ‘polluter pays’ basis.  

Complaints under these Principles offer a strong basis for influencing fee and levy settings.

Licensing

Licensing includes professional regulation applied to lawyers, accountants, engineers and others, as well as controlled activities like driving and dealing with hazardous substances.

The Board complaint procedure cannot be used to challenge individual licensing decisions but the Principles in ss 9(a)(v) and 9(h) can be used to draw attention to legislation that grants discretion to officials that is open to abuse, or broader than necessary to achieve the legislative purpose.

De-regulation

The Principles recognise that legislation may not be the best option and other options such as taking no action, reliance on the private sector, or voluntary compliance regimes should be given genuine consideration.

Unlike existing Regulatory Impact Statements (that go to Cabinet), consistency assessments can ‘brand’ a Bill, requiring the Government to publicly justify their preferred option.

For further information on this or similar issues please contact Director, Brigitte Morten