Patrick Corish is a Solicitor at Franks Ogilvie.
He finished his LLB/BA at Victoria University of Wellington in 2019 majoring in Philosophy and International Relations.
He was a researcher for the New Zealand Taxpayers’ Union and a project coordinator for the Free Speech Coalition. He occasionally hosts the Free Speech Coalition Podcast.
His main interest is in public law and the relationship between law and economics
Patrick enjoys tai chi and playing Go (an ancient Chinese board game) during his free time.
Patrick was admitted as a Barrister and Solicitor of the High Court in September 2020.
The Supreme Court considered the legality of extradition orders for Kyung Yup Kim to China so that he can be tried for murder. The proceedings have been adjourned until it can consider a joint report submitted by the parties. The Supreme Court has indicated the Minister of Justice is able to order the surrender of Mr Kim if certain criteria are met.
Kyung Yup Kim is accused of murdering a woman in China. The PRC sought extradition of Mr Kim for trial in China. The PRC gave initial assurances that Mr Kim’s rights would be respected - he would not be tortured and would receive a fair trial. Upon review of the PRC’s assurances, the Minister of Justice made the decision to surrender Mr Kim. Mr Kim successfully challenged this decision. The High Court ruled the Minister needed to address the quality of the PRC’s assurances and whether she was satisfied that the assurances sufficiently protected Mr Kim from ill-treatment. The Minister had to reconsider her decision with these factors in mind.
After reconsideration, the Minister again decided to surrender Mr Kim. Mr Kim challenged this second decision, culminating in a Court of Appeal decision in his favour. It ruled the Minister once again failed to take into account relevant factors concerning the PRC’s assurances.
The Minister of Justice and Attorney-General appealed the Court of Appeal decision.
The need to make a preliminary assessment on human rights abuse
The Supreme Court reversed the Court of Appeal finding that the Minister had to make a preliminary assessment on whether the assurances could be relied on given China’s human rights record. The reliability of assurances could be considered in the context of the individual case after assurances were given.
Assurances on torture
While the Court acknowledged that torture is still widespread in the PRC, it ruled the decision to surrender Mr Kim was open to the Minister if there were no substantial grounds to believe Mr Kim was be in danger of torture.
This could be proven if the assurances were sufficiently adequate, there was proper monitoring to ensure those assurances would be complied with, and Mr Kim’s personal characteristics did not heighten his risk.
The Court requested further information on assurances that Mr Kim would be tried and (if convicted)incarcerated in Shanghai, and confirmation with the PRC that New Zealand diplomatic visits with Mr Kim would be permitted at least every 48 hours.
Assurances of a fair trial
Minimum international procedural standards need to be met in order to have a fair trial. The Court concluded that the process prescribed by Chinese criminal procedure law was sufficient to meet international standards of a fair trial. However, there was concern about the independence of the Chinese judicial committee tasked with overseeing Mr Kim’s trial.
The Court requested further information on the judicial committee’s access to material, whether Mr Kim had a right to respond to third party submissions and whether the Minister was satisfied coercive political agents would not attend the hearing.
Requirement to seek remittance
The Court acknowledged that a sentence of life imprisonment for murder did not breach international law on gross and disproportional punishment. Since this maximum penalty was available to PRC judges, they had discretion whether to consider time already spent by Mr Kim. The Court ruled it was not necessary for the Minister to seek this assurance in order to surrender Mr Kim.
The Supreme Court decided most of the assurances the Minister took into account were adequate for an extradition order. However, the Court highlighted certain factors concerning torture and a fair trial that needed to be considered before surrender would be considered lawful. The Court adjourned until the parties could produce a joint report providing the information requested. This is due on the 30 July 2021.
This case is being watched closely as the Court’s decision could have an impact on the diplomatic relationship between China and New Zealand.
For further information, please contact Solicitor Patrick Corish
Nga Kaitiaki Tuku Iho Medical Action Society (“Applicant”) applied for an interim injunction to halt the supply of Pfizer’s COVID-19 vaccine. They stated it was available to a wider group of people than the consent allowed under the Medicines Act 1981 (“Act”).
The High Court acknowledged the possibility they were correct in their claim. But, despite ruling there was a legitimate case to argue, Justice Ellis decided not to exercise the High Court’s discretionary powers to halt the supply of Pfizer’s vaccine until a full trial.
Under s 20 of the Act, vaccines and other new medicines are only made available to the public once granted consent by the Minister of Health. In considering an application for consent, the Minister looks at a number of factors related to the medicine’s safety and effectiveness.
Provisional consent can be granted for temporary availability to a specific group of people under s 23 of the Act. An application for provisional consent has a reduced number of factors to consider.
The Minister of Health delegated authority to give consent to Medsafe. Medsafe granted Pfizer’s Comirnaty vaccine for COVID-19 provisional consent for 9 months with special conditions, including requiring updates on the safety and effectiveness of the drug. Originally intended for front-line workers who could be exposed to COVID-19, the vaccine was soon made available to everyone over the age of 16 in New Zealand.
The Applicant sought an interim injunction pending a full judicial review on the lawfulness of the consent given to Pfizer and the legality of the subsequent roll-out. This injunction would have stopped the ongoing supply of the vaccine until the full hearing. The courts have discretion when determining whether to make an interim order.
In making its determination, the Court looked at whether the Applicant had standing (a right to make a complaint), whether it was arguable that the provisional consent to the Pfizer vaccine was unlawful under s 23 of the Act, and what the public and private repercussions would be if the Court granted the interim order.
Generally on serious questions on the legality of state action, courts are generous when considering if an applicant has standing. The judge decided in this case they did because they are affected by the ongoing roll-out, and by the time the substantive proceeding concluded, the Pfizer roll-out would be largely complete.
Lawfulness of the consent under s 23
The judge stated the purpose of provisional consent was to allow the limited distribution of a new medicine where there was a “clear and immediate need” for it, but “it was not possible to go through a full consent process because all the information necessary to establish its safety was not available.” For this, Medsafe had to be of the opinion that it was desirable to supply the vaccine on a restricted basis and for the treatment of a limited number of people.
The judge ruled that while the availability of the vaccine to everyone over the age of 16 was “more limited than all New Zealanders” it was arguable this was too wide of a class of people to satisfy the ‘limited number of patients’ requirement. With that, the Applicant had an arguable case that the provisional consent was not lawful.
Public and private repercussions
COVID-19’s unique threat to public health was a considerable factor against an interim order. Looking at international medical sources, the Pfizer vaccine significantly reduced chances of infection. And a halt in the roll-out could risk public health, hurt public confidence and delay national recovery.
The judge decided the repercussions were too great to grant an interim order, and did not use her discretionary powers to stop the roll-out.
While this case was only for an interim order and not the substantive proceeding, it demonstrates the public policy elements the Court takes into account when deciding whether to exercise its discretionary powers. Applicants are not owed an interim order even when their case is reasonably arguable.
Public policy matters play a role in the Court’s choice in applying discretionary power. The circumstances of COVID-19 and the need to pursue public immunity is a unique situation. Even when government action might be unlawful, discretionary remedies may not be given when the risk to the public good is too great. Despite policy factors preventing a remedy in this case, the consent may yet be determined to be unlawful. Parliament has subsequently changed the Medicines Act, allowing for provisional consent to authorise similar roll-outs in future.
If you are interested in understanding more about this case or similar areas of law, please contact Senior Consultant Brigitte Morten.
UPDATED (July 2021): Since publication the case brief below, the Attorney-General appealed the decision in the Supreme Court. He submitted that the Court of Appeal misapplied the Supreme Court’s judgment in Re Greenpeace. The Attorney-General asked that the Court of Appeal’s decision be reversed.
In a media release, the Supreme Court confirmed that as part of the proceeding, it would reconsider its decision in Re Greenpeace and whether some forms of political advocacy can be considered charitable.
The Court of Appeal reversed the decision of the High Court and the Charities Registration Board to deregister Family First New Zealand from the Charities Register and declared that Family First qualified for registration as a charity. The Court of Appeal found that the activities of Family First, while political and controversial to some New Zealanders, is for a charitable purpose. This is the latest application of the Supreme Court’s ruling in Greenpeace that some political purposes are charitable.
Family First New Zealand is a registered charity under the Charities Act 2015. In2013, the Charities Registration Board decided to deregister Family First because the Board considered Family First’s advocacy of its particular views about the family as being for a non-charitable political purpose without a self-evident public benefit. A judicial review in 2015 determined that the Board’s decision to deregister Family First was incorrect because the court did not follow the Supreme Court approach in Greenpeace and was instructed to reconsider its decision.
In 2017 the Charities Registration Board again decided to deregister Family First for similar reasons: Family First’s main activity was advocacy for the advancement of its policies. The Board did not consider this to be a benefit to the public. Family First again sought judicial review of the decision.
The Court of Appeal addressed three main questions in its consideration:
a) whether the High Court was wrong to find Family First was not a trust for charitable educational purposes;
b) whether the High Court was wrong to find Family First is not a trust for the purpose of promoting families and marriage as a benefit to society; and
c) if the High Court was wrong on any of those conclusions, whether Family First has a non-charitable purpose of more than an ancillary nature which would disqualify it from being a registered charity?
Charitable purpose – advancement of education
Section 5of the Charities Act 2005 sets out four categories of charitable purposes. The second of these is “the advancement of education or religion”. Family First claimed that some of its organization’s primary objects: to “promote and advance research and policy”, “educate to educate the public”, and “produce and publish relevant and stimulating material” qualified under this category.
The Court ruled that the advancement of education should be interpreted “very widely” and educational activity “will extend to those providing for the improvement of a useful branch of human knowledge and its public dissemination.” Education about the family is “for a public good” and fell within the second charitable category. The Court ruled Family First met the minimum standard of having an educative purpose by the conducting research and reporting that research adequately.
Charitable purpose – any other matter beneficial to the community
The Court also looked at the law’s development over time to assess whether Family First’s activity is analogous to other charitable purposes under common law.
Family First argued its advocacy for family values and marriage being a strength was a benefit to society, while the High Court ruled the focus on the “traditional family” was too “conservative and controversial” to be a charitable purpose.
Applying the Supreme Court’s decision in Greenpeace the majority decided that the advocacy in support of marriage or core family values was “not dissimilar to the examples given in Greenpeace of world peace and nuclear disarmament.” Some forms of political advocacy benefited the community.
The Court held that Family First’s object of advancing the family satisfied the fourth category of charitable purpose.
Non-charitable, non-ancillary purposes
The Court then looked at whether Family First had any non-ancillary purpose that were non-charitable that would disqualify it from maintaining registration. The Court asked whether specific controversial issues Family First advocated for where for a non-charitable purpose that was more than ancillary.
The Court looked at various policies and public statements made by Family First over a range of matters. Taken together these statements reflected the charitable objects of Family First, with a few non-charitable exceptions.
The Court concluded Family First’s non-charitable advocacy on any singular issue was ancillary to the overall charitable purposes of education and support of the family and marriage which were “generally constant over time”. But the Court warned that Family First will have to monitor these activities and ensure they are kept ancillary.
The Court allowed the appeal and ruled that the Board and the High Court erred in deciding Family First was disqualified from remaining a registered charity. It made a declaration stating Family First qualified.
This is another case that applies the decision of the Supreme Court in Greenpeace, allowing for advocacy on political matters to be charitable purpose. This 2 to 1 decision could have gone either way, and demonstrates against how this application of Greenpeace is on a case by case basis. As public views around benefits to the community changes, political advocates may find themselves moving towards or away from the protections of the Charities Act.
If you would like to know more about the application of charities law, please contact Patrick Corish.