Max Pakinga-Barber

Parliament’s Environment Committee is considering the Fast-track Approvals Amendment Bill (“Bill”). Franks Ogilvie submitted on the Bill, drawing on our experience advising clients under the current environmental and consenting system. We support the Bill’s direction but identify several opportunities to strengthen its ability to deliver timely, certain, and enabling development decisions.

Key changes introduced by the Bill

The Bill amends the Fast-track Approvals Act 2024 (“Act”). While the Government announcements on the Bill focused on a new streamlined process for fast-tracking of supermarket consents, the changes introduced in the Bill are intended to better promote delivery of the Act’s purpose of facilitating the delivery of a range of infrastructure and development projects with significant regional or national benefits.

Comment and appeal rights‍

The Bill narrows who may comment on fast-track approval applications. Under the current Act, some expert panels have exercised their discretion to invite comment generously, including to those not directly impacted by proposed activities or opposed to certain activities on principle. The existing Act automatically grants commenters rights to appeal approval decisions.  

The Bill clarifies that panels can only invite comment at their discretion where there is a pressing need not fulfilled by those that the Act requires be given comment rights (including local authorities, iwi, and government departments). Even where discretionary commenters are invited, they will lose rights to appeal panel decisions.

Technical and administrative improvements

The Bill introduces several technical improvements aimed to make processing and decision-making on fast-track applications faster. The Environmental Protection Agency is empowered to undertake initial processing tasks concurrently rather than sequentially, there is greater flexibility to amend applications after they are submitted, and a maximum time limit for panels to reach a decision is introduced.

Listed projects

In Ngāti Kuku Hapū Trust v Environmental Protection Agency [2025] NZHC 2453, the court struck down Port of Tauranga’s fast-track wharf extension because its application strayed beyond the project description set out in Schedule 2 of the Act. The Bill corrects the description of that project, allowing it to proceed to a panel. It also introduces a limited power for the Minister to correct listed project descriptions. This power is likely to be important given that another fast-track applicant has withdrawn their application due to the same issue that arose in Ngāti Kuku.

Government Policy Statements

A new power allows the Minister to issue Government Policy Statements to guide how ‘significant regional or national benefits’ are assessed in particular sectors. These statements must be considered by Ministers referring projects to expert panels, and by the expert panels themselves when deciding on approval applications.  

Franks Ogilvie’s submission on the Bill

Franks Ogilvie submitted in support of the Bill, but argued that the Bill could go further to deliver on the fast-track regime’s initial promise.

Limit opportunities for interference and judicial red-tape

We supported the changes to limit the rights of expert panels to invite commenters at their discretion, and limiting the appeal rights of discretionary commenters. Participation rights for those with a direct interest in fast-tracked activities are important but individuals or groups not directly affected should not be able to interfere with approval applications.  

We recommended a number of further changes to limit inappropriate interference in fast-track applications, including:

·        Allowing panels to confine comments sought to specific subject-matter;

·        Prohibiting commenters from making legal submissions;

·        Requiring panels to provide written reasons when exercising their discretion to invite comments;

·        Introducing a procedural principle to require panels limit commenters to the minimum number  necessary to determine the application; and

·        Including a stronger privative clause to deter strategic judicial review.

These changes would better protect the regime from the types of delays and litigation that have hindered major projects under existing environmental and planning laws.

Technical improvements

We supported most of the amendments to enhance processing efficiency. However, we noted that the mandatory 60-day timeframe for panel decisions may prove unrealistic in complex cases, and recommended the Minister be granted a power to make exemptions to the timeframe in these cases.

Ensuring listed projects can proceed as Parliament intended

We supported the new power to correct the descriptions of Schedule 2 listed projects to ensure that fast-track applications are not hindered by court challenges based on legal technicalities. While the clause allows the Minister to amend legislation (known as a ‘Henry VIII clause’), the power was sufficiently narrow and limited that it raised no constitutional issues.

Strengthening decision-making

We supported the introduction of Government Policy Statements, which will give panels better guidance about the Act’s ‘significant regional or national benefit’ test. However, we recommended that the policy statements be given greater weight in decision-making.

We also suggested improvements to s 85(3)of the Act, which governs when panels are permitted to decline approval applications. We highlighted that some early panel decisions have been less enabling than the proponents of the Act may have expected.

To make decision-making more explicitly enabling, we recommended the following changes:

·        Clarifying that projects that have reached an expert panel are deemed to have significant regional or national benefits; and

·        Placing the onus on opponents to prove disproportionate adverse effects that outweigh these benefits.

To read our full submission, please click here.

For further information on this or similar issues please contact Driector Brigitte Morten.

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