Max Pakinga-Barber

Since the 1980s, central government service delivery has become increasingly decentralised. Rather than delivering services directly, agencies now contract widely with private providers for core operations and specialist support. Contracting out delivery can create efficiencies compared to maintaining in-house functions, but carries corresponding risks of conflicts of interest and supplier favouritism, and thereby potential misuse of public funds.

To address these risks, and to ensure public procurement is fair, competitive, and transparent, the government has adopted the Government Procurement Rules (“GPR”).

Government Procurement Rules

The GPR are mandatory for all government departments, the Police and Defence Force, and most Crown entities. Many other public bodies, including local councils and school boards of trustees, are expected to follow the rules as a matter of good practice.

The GPR incorporate the Government Procurement Charter and the Principles of Government Procurement, which emphasise fair competition, integrity, transparency, and sound management of public funds. The overarching purpose of procurement under the GPR is to achieve public value, not just the lowest price. This includes considering economic, social, cultural, and environmental outcomes that benefit New Zealand communities. Recently announced changes to the GPR, set to take effect on 1 December 2025, place a greater emphasis on economic benefits than was previously the case.

To promote the GPR objectives, contracts above particular value thresholds must be publicly advertised on the Government Electronic Tenders Service (GETS), giving all capable suppliers a fair chance to compete. Where open tendering is impractical, agencies must record and justify any limited or direct approach to particular suppliers.

Where a procurement exceeds the value threshold for open tendering, the GPR also mandates that the procuring agency cannot favour local suppliers over international ones when awarding contracts. However, from 1December 2025, agencies must give preference to local suppliers when awarding contracts that fall beneath the value threshold for open tendering.

The GPR set minimum integrity and governance rules, including requirements for agencies to manage conflicts of interest, protect confidential supplier information, and maintain accurate records of their decisions and contracts.

The GPR are not legislation. The GPR have formal effect as a policy decision of Cabinet and public officials are required to follow government policy. However, they are not legislation, and are therefore not directly enforceable in court.

Accountability

There are a number of avenues (legal and non-legal) for ensuring accountability for following procurement rules.

Legal accountability

In theory, a public agency putting a contract out for tender could contractually bind itself to submitting tenderers to follow a particular process. Failure to follow the process would amount to a breach of contract, entitling disappointed tenderers to sue for damages.

However, a mere request for tenders does not amount to a contractual offer. Something more is required to suggest an intention to create a legal relationship. The opposite is often the case – to avoid legal risk, most public agencies explicitly state in their proposals that their tender requests are not a contractual offer.

Suppliers can challenge procurement decisions via an application for judicial review. Judicial review is a legal claim that allows the decision-making procedures of public officials to be scrutinised by the courts. Claims based on procurement decisions usually rest on failures to follow correct procedure (such as using different evaluation methods than those advertised in requests for tender) or for perceived bias or conflict of interest.

However, while ordinary public decisions can be challenged on these grounds, they are not normally applicable to procurement decisions.  In Attorney-General v Problem Gambling Foundation, the Court of Appeal strongly affirmed that commercial decisions of public bodies can ordinarily only be challenged for serious impropriety –this includes fraud, corruption, bad faith, and significant conflicts of interest.

Not every public contracting decision will attract this narrow approach. Sometimes, while the decision may have a commercial appearance, it nonetheless engages some significant public interest.  For example, in Ririnui v Landcorp Farming Ltd, a Crown entity’s decision to sell a block of land was, in substance, a public decision despite its commercial appearance, as the sale implicated Crown obligations to Treaty of Waitangi claimants.

However, these cases are the exception to the rule, especially where the party challenging the decision has a purely commercial interest in the outcome. Successful legal challenge of procurement decisions can be expected to be rare under the Problem Gambling approach.

Non-legal accountability

While legal options have a steep threshold, non-legal options can provide effective relief. Public agencies are expected to maintain a process for hearing supplier complaints, and there are reputational and other incentives to ensure such complaints are dealt with fairly.

Public procurement falls within the remit of the Office of the Auditor-General, which can launch an inquiry into failures to follow the GPR under s 18 of the Public Audit Act 2001. It can launch an inquiry on its own motion or upon request, providing independent oversight for serious complaints about procurement breaches. The Auditor-General is required to report to Parliament annually on performance of its functions, including s 18 inquiries.  

Failure to follow the GPR can also be the subject of a complaint to the Ombudsman under the Ombudsmen Act 1975.The Ombudsman may investigate complaints alleging unfairness, bias, or procedural irregularity in the conduct of a procurement process, and can make findings and recommendations for corrective action. However, as the Ombudsman’s powers are recommendatory rather than binding, and given the often lengthy processing times for investigations, this option is less effective than it used to be.

Finally, public service chief executives can face Parliamentary questioning about procurement failures within their departments in Scrutiny Week.

It is not only agencies that face possible sanctions. The Public Service Commission’s Standards of Integrity and Conduct form part of each public sector employee’s employment contract. Serious breaches of the GPR could breach the Code, thereby potentially justifying a finding of misconduct or serious misconduct, with attendant employment law consequences (including termination of employment).

For further information on government procurement, please contact Director Brigitte Morten

Summary

The Court of Appeal upheld a decision to grant public law damages to two individuals who had been prejudiced by disclosure failures in a criminal prosecution.

Background

In March 2014, Lance Morrison and Richard Blackwood (“Respondents”) were charged with a number of offences relating to the financial dealings of a company they were associated with.

During the first trial, it emerged that the Crown had failed to disclose nearly 14,000 potentially relevant documents, in breach of the Criminal Disclosure Act 2008 (“CDA”). This came to light approximately halfway through the trial hearing.

The trial court accepted that the Crown had not deliberately withheld the documents, but described the scale of the non-disclosure as “unprecedented.” In those circumstances, the Respondents could not be guaranteed a fair trial. The proceeding was discontinued.

The Crown chose not to re-prosecute Mr Morrison but continued against Mr Blackwood. Mr Blackwood’s retrial commenced in August 2018. He was convicted at trial, but the convictions were later overturned on appeal.  

This meant that, in total, Mr Blackwood had to wait 5 years from the time he was charged before he was acquitted. Mr Morrison waited 3 years before the charges against him were dropped.

Following Mr Blackwood’s acquittal, both men commenced proceedings against the Crown seeking public law damages for breaches of their fair trial rights under ss 24 and 25 of the New Zealand Bill of Rights Act 1990 (“NZBORA”).

The High Court held that the Respondents fair trial rights had been breached by the non-disclosure and awarded each $10,000 in public law damages. It also awarded Mr Blackwood an additional $5,000 to reflect the undue delays in the second trial, which were directly caused by the Crown’s disclosure failures.

The Attorney-General appealed.

The case

Public law damages are a form of relief available against the state for breaches of rights guaranteed under NZBORA. The purpose of such damages, usually set at a modest sum, is to vindicate breaches of NZBORA rights, and to deter public officials from infringing such rights in future.

The rights engaged in this case were the minimum standards of criminal procedure guaranteed under ss 24 and 25 of NZBORA. These included the umbrella right to a fair and public hearing by an independent and impartial court, as well as subsidiary procedural rights such as the right to be tried without delay, to be present at trial and present a defence, to have adequate time and facilities to prepare a defence, and to effectively examine witnesses. All of these were affected by the disclosure failures.

Availability of public law damages

Earlier New Zealand cases had expressed doubt about whether public law damages could be awarded for breaches of fair trial rights, holding that those rights could be safeguarded through procedural remedies, and that the prospect of damages could have unintended consequences for prosecutorial and judicial decision-making.

The Court of Appeal in this case departed from this approach, confirming that public law damages were available for breaches of ss 24 and 25. It held that damages for breaches of fair trial rights would only arise in the most serious cases and would not have distortionary effects. There was no principled reason to exclude them, particularly as Canadian courts had already recognised their availability for a breach of fair trial rights.

First ground of appeal – Intention requirement

The central issue was whether damages required proof of intentional non-disclosure. In the Canadian Supreme Court case Henry v British Columbia, the majority held that damages required intentional withholding, knowledge that the non-disclosure would harm the defendant’s case, a constitutional breach, and resulting harm. The minority applied the same test but without the intention requirement.

The majority justified the intention threshold on concerns that without it prosecutors might be chilled in their work and litigation might expand uncontrollably. The minority was not persuaded.

The High Court in New Zealand in this case had followed the Canadian minority. The Attorney-General argued that this was an error and that the majority should have been followed.

The Court of Appeal upheld the High Court and adopted the minority approach in Henry. It emphasised that damages deter rights infringements and promote good governance, and that most disclosure issues are dealt with as part of court procedure. Given disclosure under the CDA was mandatory, it would in fact be beneficial to incentivise prosecutors to err on the side of caution and disclose documents of uncertain relevance. There was no reason to treat fair trial rights differently to other rights guaranteed under the NZBORA, where no requirement to prove intention existed.

Accordingly, the High Court had been correct in following the Henry minority and not requiring the Respondents to establish the documents were intentionally withheld.

Second ground of appeal – Additional damages for undue delay

The Attorney-General also appealed against the additional $5,000 awarded to Mr Blackwood for delay.

The Court dismissed this appeal. The disclosure failures had directly caused the retrial, which took place more than four years after the initial charge. Another defendant, who was convicted, received a 19-month sentence reduction for the same delay. There was no reason Mr Blackwood, who was acquitted, should be denied a remedy

Result

The Court of Appeal upheld the High Court’s awards of public law damages to the Respondents.

The decision shows a departure from the more conservative approach signalled by the New Zealand courts to public law damages under ss 24 and 25 of the NZBORA.

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

Summary

The High Court dismissed a judicial review against the Judicial Conduct Commissioner’s recommendation to convene a panel to investigate alleged misconduct by District Court Judge Ema Aitken.  

Background

Statutory framework

The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) sets out a detailed process for accountability of judges for misconduct. The Act aims to maintain the balance between these accountability mechanisms and the need to protect security of judicial tenure from political interference.

Under the Act, the Judicial Conduct Commissioner is the point of first receipt for complaints of judicial misconduct. In the most serious cases, the Commissioner may recommend to the Attorney-General to convene a Judicial Conduct Panel to investigate the alleged misconduct. When a Panel is convened, they are tasked with investigating the matter and making a recommendation as to whether the judge should be removed from office.

The Attorney-General may commence the process for removal of the judge if (and only if) the Panel recommends this course of action following their investigation.

The incident

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 (“Incident”).

Following a complaint about the Incident, the Commissioner recommended that the Attorney-General convene a Panel. The Commissioner noted that there were differing accounts of what occurred during the Incident, and particularly whether Judge Aitken’s outburst had a political motive.  

Before the Attorney-General acted on the recommendation, Judge Aitken filed judicial review proceedings alleging the recommendation was unlawful on four grounds and seeking that the matter be referred back to the Commissioner for further investigation.

In February2025, the court granted interim orders recommending that the Crown take no further action to convene the Panel.

The Case

Commissioner’s role

The court held that the Act was intended to propose a number of discrete steps that must be satisfied before a judge could be removed from office.

The Commissioner’s function within this scheme was to filter out unmeritorious complaints, and to recommend appropriate next steps for meritorious ones. Given their function, the Commissioner was expected only to form a preliminary view of the subject-matter of the complaint. The Commissioner could recommend convening a Panel if they were satisfied that the complaint was plausible and that the alleged conduct, if substantiated, could warrant consideration of removing the Judge from office.  

The Commissioner did not have licence to determine disputed issues of fact, which was a function reserved by the Act for a Panel (if one was appointed).

First ground - Failure to identify legal standard

Judge Aitken alleged the Commissioner had erred in law by failing to expressly identify the legal standard against which the alleged conduct was to be measured.

The court held there was no general rule that the Commissioner had to expressly identify the relevant standard. In marginal cases, failure to do so might indicate that the Commissioner had misapplied the legal test, but this was not such a case. If a political dimension to the Judge’s conduct was substantiated, this would certainly warrant consideration of Judge Aitken’s removal.

Second ground - Failure to provide sufficient reasons

Judge Aitken’s second ground alleged the Commissioner had failed to provide sufficient reasons for their decision (as required by s 18(2) of the Act) because they had failed to identify the relevant legal standard and clearly apply that standard to the facts before them.

The court was satisfied that the Commissioner’s reasons were adequate in the circumstances.

The ambit of any statutory requirement to provide reasons was context-dependent. A quasi-judicial body might be expected to provide fairly robust reasons if they were making authoritative determinations on facts and law, particularly where the decisions made were publicly available and relied on by third parties. However, given the Commissioner’s determinations were both preliminary and (ordinarily) confidential, the requirement to provide reasons was far less stringent.

In these circumstances, Commissioner’s reasons were sufficient. They were neither required nor permitted to go into any further detail than they had regarding conflicting factual accounts of the Incident.  

Third ground - Insufficient preliminary examination

The Judge’s third ground alleged that the Commissioner could not properly form the opinion required under s 18(1) without referring her response about alleged political animus back to the complainant.

The court rejected this argument. An iterative approach to disputed evidence might be necessary in particular cases, but it was not an absolute legal requirement. There was no evidence it would have made any difference in this case. The claim was in essence an invitation for the Commissioner to determine disputed factual allegations, a function that the Act did not permit the Commissioner to perform.

Fourth ground – Failure to determine initial scope of Panel enquiry

Judge Aitken’s final ground of challenge was that the Commissioner’s cursory reasons meant that the scope of the resulting Panel inquiry would be unclear.

The court held that the scope of the inquiry was clear. While the Commissioner did not expressly set it out, his reasons read as a whole and with regard to attachments and appendixes clearly established that the Panel would investigate the Incident, including the allegation that Judge Aitken’s actions were politically motivated. If that motivation were made out, this would suggest breach of constitutional convention that could certainly warrant removal from office.

Result

The court dismissed the application in its entirety and allowed interim orders restricting further action to lapse. Before the hearing, the Attorney-General recused herself from further involvement, as it had been her that referred the complaint to the Panel.

The acting Attorney-General, who is now responsible for the matter, convened a panel on 22 July 2025. The Panel is scheduled to hear the complaint in February 2026, and to report back to the Attorney-General with its recommendations by Easter 2026.

This decision sets a clear precedent about the limits of the Judicial Conduct Commissioner’s functions, which provides welcome clarity following earlier cases that developed the law in response to more complex facts.

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