Brigitte is admitted as a barrister and solicitor of the High Court.
She has over a decade of experience working in politics across Australia and New Zealand. She has a Bachelor of Law from Victoria University, a Masters of Law from the Australian National University, and a Graduate Certificate in Counter-Terrorism from Interdisciplinary Center (Israel).
Brigitte spent three years providing political and media advice to the Embassy of Israel in Australia, whilst dealing with a number of high profile events. She worked as a Senior Advisor in state politics and worked on a number of Australian state and federal election campaigns. Brigitte was a Chief of Staff to an Australian Senator, before returning home to be the Senior Ministerial Advisor to the Minister of Education in the last National Government.
She has worked extensively with clients in the private sector to help them establish and maintain relationships with government, lobby on important issues, and drive campaigns to raise public interest. Brigitte particularly enjoys working with grassroots and member based organisations.
Brigitte has extensive knowledge of law making processes, how to best utilise the Official Information Act, and how to coordinate public interest campaigns across multiple channels. She is particularly interested and experienced in firearms law, electoral law and large scale reforms.
She is a regular commentator for RNZ and Newshub, and writes a weekly column for NBR.
The Timaru, Whangarei and Waimakariri District Councils unsuccessfully challenged the Government’s Three Waters reforms. They sought declarations recognising important common law principles related to democratic local governance and property rights.
The Government’s proposed Three Waters reform aims to change how drinking water, wastewater and storm water services are provided. These services are currently provided by local authorities to their communities through infrastructure assets the councils own.
At the time these proceedings were lodged, the Government sought to shift the delivery and operation of three waters services from local councils to four new multi-regional water service entities. Future reforms intended to transfer council-owned infrastructure assets to those entities, however local councils would not be compensated for the value of their assets. As part of their Three Waters ‘reset’ in April 2023, the Government has proposed a smaller set of ten regional entities to replace the previous four mega-entities. The ten regional water services entities would be established based on existing local authority boundaries. The ‘reset’ has delayed the Three Waters reforms by two years and is due to come into force in 2026.
The Timaru, Whangarei and Waimakariri District Councils (the Councils) oppose the proposed reforms. They are concerned the reforms will cause a loss of local democratic accountability and deprive the Councils of assets that local communities have funded over generations.
The Councils sought three declarations in a bid to challenge the implementation of the Three Waters reforms:
A. Local government is an important and longstanding component of the democratic governance of New Zealand.
B. Important and longstanding principles and features of the democratic governance of New Zealand at the local level include:
a) Local infrastructure assets are owned and/or controlled, and related services are provided by local councils;
b) Local councils are responsive/and democratically accountable to their communities for the provision of infrastructure assets and related services;
c) Local councils owe (or may owe) fiduciary-like obligations to their communities; and
d) Their communities have wholly or materially funded local government infrastructure assets.
C. The Councils’ rights of ownership in relation to infrastructure assets include the following:
a) The exclusive ability to prevent others from interfering with such assets;
b) The exclusive possession or control of such assets;
c) The exclusive ability to manage and operate, and/or enter into contracts about such assets;
d) The exclusive ability to modify or replace the assets;
e) The exclusive ability to use such assets as security for borrowing; and
f) The exclusive entitlement to receive compensation if their ownership of the assets is removed by legislation.
A declaratory judgment is a formal statement by a court pronouncing the rights or legal position of the parties as they stand. The Crown submitted that the declarations sought were too abstract and general to come within the jurisdiction of the Declaratory Judgments Act 1908. The Crown contended that the Court’s jurisdiction extended to legal rights but not to ‘components’, ‘principles’, or ‘features’ of local government.
Mallon J took a broad view of the ‘catch-all provision’ under the Act which permits the Court to make declarations concerning legal rights. Her Honour agreed with the Councils that the common law includes fundamental values and principles. The declaratory relief sought to establish that the Three Waters reforms disturbed important constitutional law principles affecting the Councils and their communities. The Court accepted that they fell within the broad ‘stand-alone’ jurisdiction for declarations of legal rights.
Having determined that it had jurisdiction to make the declarations sought, the Court assessed whether it should do so in light of the relevant discretionary factors.
Both the Crown and the Court accepted that local government is an important and longstanding component of the democratic governance of New Zealand. Mallon J held the declarations sought do not accurately reflect this principle. The Local Government Act 2002 already defines the purposes and principles of local government, including democratic accountability. Her Honour disagreed this principle required local authorities to own or control local infrastructure assets, nor is it a ‘feature’ that cannot be changed. Just as Parliament conferred those functions and powers, it can remove them. It is for Parliament to decide whether local councils retain the ownership and control of local infrastructure assets and related services, and how those services should be delivered. The Court agreed with the Crown’s arguments and held the proposed declarations were constructed abstractly and devoid of any utility.
The Councils relied on the common law principle of the right not to be forcibly deprived of property without compensation unless there is legislative authority. The Court acknowledged that it is a principle of statutory interpretation to construe statutes in recognition of this right. The Councils submitted that they were entitled to receive proper compensation if they were to lose ownership of their Three Waters assets through legislation. The Crown argued that this right is limited to the deprivation of private property. The Crown also submitted that the Councils’ ownership rights sit within a complex legislative and regulatory framework that has always been subject to the sovereignty of Parliament, which the Councils’ declarations failed to acknowledge.
The Court agreed with the Crown’s arguments. The declarations sought were framed too generally and inaccurately captured the full framework of local government ownership rights regarding infrastructure assets. Mallon J accepted that “the Three Waters reforms involve a form of expropriation for which compensation could be given, but whether it is, is ultimately a matter for Parliament”.
Mallon J held that granting the declaratory relief would be an inappropriate exercise of the Court’s discretion. To do so would be inconsistent with the principle of non-interference because the “courts should not try to dictate, by declaration or a willingness to award damages or any other form of relief, what should be placed before Parliament”. While the declarations had been carefully framed to avoid the principle of non-interference, they nevertheless aimed to influence the legislative process.
The Councils submitted that Parliament should not proceed with the reforms without being properly informed of the important principles and rights addressed in the declarations. The Court held the declarations were unnecessary for such a purpose. If the reforms proceed, Parliament would be doing so knowing that they are expropriating councils’ water services assets, diluting the councils’ control of those assets, and removing the local democratic accountability inherent in the governance and management of those assets.
The Councils’ application for declaratory relief was dismissed.
The Timaru and Waimakariri District Councils have filed a notice of appeal and intend to challenge the High Court decision to refuse the declarations. The Councils announced they intend to approach other local authorities who may wish to join the proceedings. Whangarei District Council decided to join the appeal in August 2023.
Following the change of Government after the 2023 general election, the Timaru District Council voted on January 30 2024 to withdraw the appeal. This came after the declared intent of the incoming Local Government Minister to repeal the Three Waters reforms.
For further information on this case or similar issues, please contact Director Brigitte Morten
Who we are
Franks Ogilvie specialises in public and commercial law. We work with a range of clients across government, political parties / causes, industry groups and not-for-profits. Our small team enjoys new challenges, tricky public policy challenges and finding solutions where others might not.
We expect the same from you.
You would be expected to manage client files and advise across the practice. Our preference is for someone with public law or commercial law experience but demonstrated energy and commitment to learning new skills would be recognised.
About you:
You may be looking to take a step out of big law firm compartmentalisation, government or regulatory employment into a role where there is more room for rapid advancement. We rarely work on the same kind of matter twice. We are happy to discuss the role and type of work we do before application so please drop us a line.
Send expressions of interest to info@franksogilvie.co.nz
Applications close 12 May 2023
The Supreme Court granted Make It 16’s appeal for a declaration that the minimum voting age was inconsistent with the right to freedom from discrimination under the New Zealand Bill of Rights Act 1990 (“NZBORA”).
Make It 16 is a lobby group seeking to lower the minimum voting age from 18 to 16. The group argued the minimum age of 18 set by the Electoral Act 1993 and Local Electoral Act 2001 was inconsistent with the right to freedom from discrimination on the basis of age. The Court of Appeal accepted that minimum age was unjustified, but declined to make a formal declaration to that effect due to the political nature of the issue.
Make It 16appealed the decision to the Supreme Court.
While rights under NZBORA can be limited, they may only be done so when demonstrably justified in a free and democratic society. NZBORA also requires that where possible, laws must be interpreted in a manner consistent with these rights.
Section 12 of NZBORA states that every New Zealand citizen over the age of 18 years has the right to vote in parliamentary elections. However, section 19 of NZBORA protects against discrimination on a list of grounds, including on the basis of age. Under the Human Rights Act 1993, the protection against age-based discrimination expressly begins at 16.
The Supreme Court acknowledged that section 12 may provide support for adopting a voting age of 18, but it was not sufficient to justify the exclusion of 16 and 17 year-olds from voting. While the section prescribed the right to vote for those over 18, it did not expressly exclude the possibility of younger voters.
The Attorney-General did not provide evidence to support a voting age of 18. The Court noted that the evidence before it instead supported the proposition that 16 and 17 year olds were sufficiently competent to vote. The majority held the Court of Appeal was therefore correct to conclude that the limitation to the right to freedom from discrimination had not been justified.
Kós J, dissenting, disagreed that the provisions of the Electoral Act were inconsistent with NZBORA, as the voting age reflected a clear Parliamentary intent. His honour stated that section 12 expressly provided a voting age of 18, and its specificity prevailed over the general anti-discrimination provision under NZBORA. Had Parliament intended to alter the voting age in accordance with NZBORA, it would have done so when it passed the Electoral Act in 1993. However, his honour agreed with the majority that the voting age within the Local Electoral Act was inconsistent. This was because the voting provision within NZBORA only applied to parliamentary elections.
Where a law is inconsistent with a right contained within NZBORA, the court may use its discretion to make a formal declaration to that effect.
The Court was not persuaded by the Attorney-General that it would be premature to make a declaration. The Court noted the Royal Commission Report in 1986 which stated that “a strong case” could be made for a voting age of 16, and recommended the voting age remain under review. The Court also held that the issue was not sufficiently complex as to be beyond its institutional competence.
There were a number of factors which strongly supported the making of a declaration:
- The case involved the protection of fundamental human rights of a minority group;
- The minority nature meant that other avenues such as parliamentary inquiries and public-initiated referenda may not be as effective in protecting the rights of the group;
- New Zealand is a party to the United Nations Convention on the Rights of the Child, which recognises an obligation to assure children capable of forming their own views the right to freely express those views in matters which affect them; and
- The age of 16 is specified in New Zealand’s relevant anti-discrimination laws, a feature which separates it from other countries.
The Supreme Court held that a declaration was appropriate, and the Court of Appeal erred in declining to grant the remedy.
The Supreme Court allowed the appeal.
The Court made a declaration that the provisions of the Electoral Act and Local Electoral Act setting a minimum voting age of 18 were inconsistent with the right to freedom from discrimination on the basis of age, and had not been justified.
The Court took care to formulate its declaration in a manner which acknowledged the possibility that further evidence could justify a voting age of 18.
In late 2022, the Labour Government announced plans to introduce a bill on lowering the voting age. Such a bill would require a 75 percent majority in Parliament to pass. In early 2023, the Government announced that the bill will not be progressed but then introduced a bill Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill in August 2023. This bill made it to Select Committee, but in January 2024 the new coalition government announced the withdrawal of the bill.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
