Max Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
Summary
A climate change advocacy group was unsuccessful in judicial review proceedings challenging the grant of two petroleum exploration permits.
Background
The Crown Minerals Act 1991 (“CMA”) creates a legal regime whereby permits are granted for the exploration, prospecting, and extraction of Crown owned minerals. The purpose of the CMA at the relevant time was to promote exploitation of Crown owned minerals for the benefit of New Zealand.
The Minister of Energy and Resources has the power to grant mineral permits under the CMA. The CMA lists various matters which the Minister must be satisfied of when granting permits, but these considerations are not stated as exhaustive. Additionally, there is a general requirement for all decision-makers under the CMA to consider the principles of the Treaty of Waitangi.
The Climate Change Response Act 2002 (“CCRA”) is the primary legislation governing carbon emissions in New Zealand. Amendments in 2019 introduced a statutory ‘net zero’ target and requirements for the government to set emissions budgets and emissions reduction plans. Section 5ZN allows any public decision-maker to have regard to these matters as they think fit.
In 2021, the Minister proposed to grant permits under the CMA to two firms allowing them to explore for petroleum in specified areas of Taranaki.
Students For Climate Solutions Incorporated(“SCSI”), an incorporated society established to enable students to address climate change concerns, challenged the permit decision in judicial review proceedings.
The High Court dismissed the challenge on all grounds. SCSI appealed to the Court of Appeal.
The case
SCSI argued that the Minister’s decision was unlawful due to failure to consider the climate change implications of the decision, as well as the principles of the Treaty of Waitangi.
Both parties accepted that mandatory considerations were those matters that the governing statute expressly or impliedly required the decision-maker to take into account. It was not open for a court to impose its own view on decision-makers as to what was sensible to consider.
There was also no dispute between the parties that combustion of petroleum was a leading cause of climate change.
Failure to consider climate change implications
The parties agreed there was no express requirement in the CMA to consider climate change.
However, SCSI argued that a requirement to consider climate change was implied by the reference to ‘for the benefit of New Zealand’ in the CMA’s purpose section. They argued that the ‘for the benefit of New Zealand’ wording meant that exploitation of Crown minerals should only occur if it was determined that the exploitation was in New Zealand’s benefit. Assessment of public benefit in this case required the Minister to consider climate change impacts, and this interpretation was supported by the scale of the climate emergency as well as the intent behind s 5ZN of the CCRA.
The court unanimously rejected SCSI’s interpretation of the purpose of the CMA. ‘For the benefit of New Zealand’ did not qualify the CMA’s purpose of promoting mineral exploitation. Rather, it was clear that Parliament regarded promotion of this objective and benefit to New Zealand as one and the same.
This was supported by Parliamentary materials that showed that when the purpose clause was added to the CMA, the main concern was economic development. Environmental concerns were intended to be dealt with in other legislative regimes. Subsequent case law in the High Court had confirmed this interpretation in other contexts.
Accordingly, the proper interpretation of the CMA was that Parliament had not intended a requirement for climate change to be considered.
Failure to consider Treaty of Waitangi principles
SCSI argued that failure to consider climate change implications in this case amounted to a failure to consider Treaty principles, as Maori stood to be disproportionately affected by climate change.
The court unanimously rejected this argument. Proper consideration of the Treaty principles in this context required consulting iwi and hapū around the permit area and assessing impacts of the permit on them. The Minister had considered this. A broad policy assessment weighing economic benefits with climate change impacts was not required as it would be inconsistent with the scheme and purpose of the CMA.
Were climate change implications a permissible consideration?
The High Court had held that not only was climate change not a mandatory consideration under the CMA, it was not a permissible consideration either. The court held that the CMA, as the more specific legislation, overrode the more general permission under s 5ZN of the CCRA for decision-makers to consider climate change matters. The effect of this decision was that any Minister under the CMA who considered these matters substantively would act unlawfully.
The majority of the Court of Appeal declined to reach a concluded view on this issue, holding that it unnecessary to decide the case.
However, in a separate judgment, Mallon J came to the opposite conclusion to the High Court. Climate change matters were a permissible consideration under the CMA – there was no limitation under that Act on what matters a Minister could consider, and there was clear intent that s 5ZN applied generally to all public decision-makers. Additionally, there would be occasions where it would be perverse for a Minister not to consider climate change when granting mineral permits, such as where New Zealand was on track to significantly exceed an emissions budget.
Result
The appeal was dismissed on all grounds.
Amendments to the CMA following the permit decision mean that this decision is of lesser relevance to the interpretation of the CMA specifically.
The broader relevance of the decision relates to its treatment of s 5ZN of the CCRA. Unfortunately, the law is left in an unsatisfactory state. Cooke J’s decision in the High Court is directly in conflict with Mallon J’s comment in the Court of Appeal. Neither decision is binding precedent on future judicial reviews in the High Court. The legal uncertainty leaves room for future litigation about the extent to which public decision-makers can factor climate change concerns into their decision-making.
For more information on this case or related issues please contact Director Brigitte Morten
Summary
Three vaping related 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.
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 these proceedings were afoot, the government began enacting regulations to correct defects in the Original Regulations (“Amendment Regulations”) that had been brought to their attention as a result of the legal proceedings. The Amendment Regulations reduced the maximum allowable nicotine concentration in certain vaping products from 50mg/mL to 28.5mg/mL.
Upon learning this, the applicants filed judicial review proceedings claiming that the Amendment Regulations were unlawful.
The case
The Amendment Regulations are secondary legislation. Secondary legislation is law made by someone other than Parliament, usually under the authority of an empowering Act of Parliament. The making of secondary legislation is amenable to judicial review in the same way as any other exercise of power by a public decision-maker.
When the Governor-General makes secondary legislation, they act on the advice of the responsible Minister, formally conveyed through the Executive Council.
The applicants’ challenge to the Amendment Regulations was based on a number of judicial review grounds. Broadly, these were based on inadequate consultation and a lack of evidence of a link between nicotine concentration in vaping products and resulting user harm.
Inadequate consultation
The applicants claimed that the Minister was required to consult with them prior to making the Amendment Regulations (as representatives of the industry to be regulated) and had failed to do so. They also alleged that their consultation with various other groups had been inadequate.
The court held that there was no legal duty to consult in the circumstances. They affirmed that there was no general duty to consult in the absence of express statutory language, other than in cases where a particular individual had a legitimate expectation of being consulted(as they have special circumstances that differentiates them from the general public).
As the Act said nothing about consultation when making regulations under s 84(1)(a) (in contrast to other powers under the Act which did require consultation), the court inferred that Parliament did not intend a consultation requirement. The circumstances of the applicants were not sufficient to give rise to a legitimate expectation of consultation.
Accordingly, the applicants’ claim failed on this ground. Consultation was described as a ‘healthy practice’ but not a mandatory requirement in the circumstances.
Lack of evidence of correlation between nicotine concentration and harm
The applicants advanced a number of grounds relating to the Amendment Regulations being contrary to expert evidence. The applicants argued that the expert position was that there was no correlation between nicotine concentration in vaping products and the level of resulting harm.
The applicants argued that the Governor-General had made the regulations without considering the expert evidence they relied on, which they argued was a mandatory relevant consideration. The court rejected this argument, holding that Governor-General (and Executive Council which advised them) were concerned with high level public policy only, and were not obliged to consider technical expert evidence when making secondary legislation.
The applicants made a related argument that the Amendment Regulations were unreasonable or were ultra vires (‘outside the power of’) the Act because they went against the weight of expert evidence. If, as the applicants alleged, there was no link between nicotine concentration and harm, the Amendment Regulations could not rationally fall within the scope of the power to ‘prescribe safety requirements’ for vaping products.
The court emphasised that judicial review ground of ultra vires was concerned with whether the secondary legislation complied with the empowering Act, not the court’s assessment of its merit. Secondary legislation would exceed the scope of the empowering Act if it was not rationally connected to the purpose of the empowering provision. However, if this unexacting requirement is satisfied, a court would not entertain a challenge to secondary legislation merely because it viewed the evidence as pointing in a different direction.
In this case, the court held that this rationality requirement was satisfied. The Minister had acted in good faith and the evidence was “capable of supporting” a link between nicotine concentration and harm. Accordingly, the Amendment Regulations “were not totally irrational” and the applicants’ challenge on this ground failed.
Result
The court rejected the applicants’ claim on all grounds and the Amendment Regulations remained in force.
The decision clarifies some important points about judicial review of secondary legislation, including that:
For further information on this case or similar issues please contact Director Brigitte Morten
Summary
The High Court granted interim orders preventing the Attorney-General from appointing a Judicial Conduct Panel to investigate allegations of judicial misconduct by a District Court Judge.
Background
Under our constitutional system, the independence of the judiciary is protected by providing security of tenure for individual judges. However, if the public is to retain confidence in the system, there is a countervailing need to ensure there is accountability for judicial misconduct.
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) seeks to balance these conflicting objectives by establishing a multi-step process that must be undertaken before a Judge can be removed from office.
The process starts with the Judicial Conduct Commissioner. On receipt of a complaint, the Commissioner has discretion to take one of several actions. In cases where the Commissioner is satisfied that it is necessary to investigate a complaint that, if proven, could warrant consideration of removal of the judge, they may recommend that the Attorney-General convene a Judicial Conduct Panel to investigate the matter.
The Attorney-General may then decide to follow all or part of the Commissioner’s recommendation, and convene a Panel to investigate. Following an investigation, the Panel may recommend to the appropriate decision-maker to remove the Judge. The Attorney-General’s decision and the Panel’s investigation is determined by the scope of the Commissioner’s initial investigation.
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.
A complaint was referred to the Commissioner by the Attorney-General. On 23 January 2025, the Commissioner exercised their powers under the Act to recommend to the Attorney-General that a Judicial Conduct Panel be appointed to investigate complaints about Judge Aitken’s conduct at the Northern Club Christmas Party
On 10 February 2025, before the Attorney-General convened the Panel, Judge Aitken filed judicial review proceedings alleging that the Commissioner’s recommendation was unlawful. At the same time, she sought interim orders preventing the Attorney-General from acting on the recommendation until the judicial review claim had been determined.
The case
To obtain interim orders, Judge Aitken had to demonstrate that they were necessary to protect her position, and that it was appropriate for the court to exercise its discretion to grant them.
Preservation of position
The court rejected Judge Aitken’s argument that she had a position to preserve solely because the trial court might decide the Commissioner’s decision was unlawful at trial. She was required to establish some kind of prejudice that would arise if the interim orders were declined and she went on to succeed at trial.
However, the court also rejected the Crown’s narrow argument that the only prejudice that could arise to a judge was potential removal from office (which could not possibly occur before trial).
The court noted that the Attorney-General’s decision to appoint a Panel following the Commissioner’s recommendation was a serious one. While convening the Panel was not an inevitable step to a Judge’s removal, the mere fact of an appointment was a serious step that could increase public pressure on the Judge and potentially compromise their independence.
On this basis, the court accepted that there was a potential prejudice to Judge Aitken’s natural justice rights for having to respond to the Attorney-General’s decision to convene the Panel, when that decision was potentially affected by the Commissioner’s error of law.
Discretion
In exercising its discretion, the court considered the merits of Judge Aitken’s case, the nature of the statutory power, and the balance of convenience.
The merits of the case tentatively favoured granting the orders, with the court stating that Judge Aitken’s claim did not appear ‘entirely lacking in merit’.
Public policy considerations pulled in different directions and were a neutral factor in granting relief. While granting interim orders might delay the statutory process and undermine the effectiveness of the complaints process, allowing a potentially unlawful process to continue until final determination could undermine the Act’s countervailing objective of protecting judicial independence.
The balance of convenience was the decisive consideration.
The prejudice to the Crown if the orders were made and they went on to succeed at trial was minimal. The hearing had been scheduled for the following month, meaning as soon as judgment was issued, the Attorney-General would be able to proceed confidently.
By contrast, Judge Aitken stood to suffer serious prejudice if the orders were declined but she went on to succeed at trial – she would be required to provide a response to the decision to convene the Panel (which could compromise her natural justice rights) and there was a likelihood of adverse publicity which could affect the undertaking of her judicial functions.
As the greater potential prejudice lay with Judge Aitken, the Court exercised its discretion to grant the orders sought.
Result
Interim orders were granted declaring that the Attorney-General ought not take any further action consequential on the Commissioner’s decision until further order of the court.
The hearing of the main judicial review proceeding was heard in mid-March 2025, with the court yet to issue judgment.
The case illustrates the delicate balance the court must maintain in the rare cases of determining the legality of the judicial misconduct process under the Act. The court in this case erred in favour of protecting the natural justice rights of Judges as a means of protecting judicial independence, suggesting a relatively low threshold for obtaining interim orders in the rare instance of proceedings under the Act.
For more information on this case or similar issues please contact Director Brigitte Morten
