Much of the public attention has understandably been on review of COVID-19 related decisions, with a particular focus on vaccine mandates and the legality of lockdowns – restrictions on rights and freedoms as we have not seen before in our lifetimes.

But away from the intensity of COVID-19 disputes, there is an unmistakeable movement towards broader public interest litigation that is seeking to use judicial review and other public law proceedings as an instrument of change. With some COVID-19 regulation still in play, a busy Government change agenda and an empowered business community, citizenry, and public service alike, there are no signs of the judicial review momentum slowing down in the next 12 months. 2023 looks set to be another busy year for keeping public service decision makers (and policy makers) on their game.

The COVID-19 effect

It is well understood that COVID-19 restrictions on people and businesses have changed the way we live, work, and engage with each other. These same COVID-19 restrictions have showcased the much-maligned judicial review as it was always intended, as a “relatively simple untechnical and prompt procedure”[1] to check Government decision making is lawful, fair, and reasonable.

There have been roughly 20 applications for judicial review of COVID-19 related decisions over the past three years, primarily relating to vaccination orders, MIQ exemptions and other travel restrictions, and access to Māori health information. This may not seem like a large number, but when you factor in that many of the cases have been brought by individuals [2], and judicial review cases are notoriously expensive, hard to win, slow and focussed on decision making processes not outcomes, it has been a significant development in the caseload of our High Court. Cases have been decided in weeks not months, sometimes crowdfunded or undertaken on a pro bono basis, and with a success rate strong enough to keep organisations and individuals feeling empowered to use the Courts to air frustrations with Government policy.

There is in fact a long history of judicial review by individuals for private benefit [3]. But what is really striking about the COVID-19 judicial reviews is the speed at which they have been decided in an otherwise clogged Court system, and the relatively high strike rate for successful review of the Government’s decision- making processes. Expectations have been set. We have seen a number of themes emerge from the cases. Government decision makers are taking note that:

• The Courts are prepared to construe statutory powers broadly in a crisis but will not keep granting leeway beyond the time of real emergency.
• Government needs to take care to make evidence-based decisions, even when acting under urgency – decision making on the fly will not easily survive judicial scrutiny, even in a global pandemic. Courts will hold Government accountable for rushed, non-evidence- based decision making.
• Decision makers can minimise the risk of successful challenge by identifying and engaging with the facts of each case, rather than applying rigid policies without considering the basis on which people are seeking specific Government decisions.

For people and organisations seeking to challenge Government policy and decisions, our clients are telling us that courts are once again viewed as an accessible way to get adverse decisions reviewed and potentially overturned. And the ‘wins’ taken from Court proceedings are not only decisions in people’s favour – sometimes shining light on the issues is enough to get political momentum for change, and organisations are seeing the benefit from such a strategy in public law cases of late.

Public interest groups stepping up

The number of judicial review applications by public interest groups is growing too, and not just in relation to COVID-19. So why are public interest cases gaining popularity? The simple answer seems to be that, in addition to providing a platform for holding government decision makers to account, media coverage and public debate is turning judicial review into an attractive lobbying tool. Other public law proceedings, such as those seeking declaratory judgments or declarations of inconsistency with the New Zealand Bill of Rights Act 1990, are similarly being used as a political lobbying tool in an attempt to overturn government policy on a broad range of issues.

One significant example was the recent climate change judicial review proceeding brought by Students for Climate Solutions Inc (SfCS), an incorporated body established to enable students to develop and support climate-friendly initiatives [4], and which pursued political litigation as one of its major initiatives. SfCS challenged decisions to grant petroleum exploration permits to private entities under the Crown Minerals Act 1991 on the basis that the relevant decision maker failed to substantively consider the climate change implications of the decisions. SfCS were unsuccessful in their claim but received significant media attention and debate for what the Judge referred to as possibly the most significant issue of our time.

The same can be said for the unsuccessful judicial review by Lawyers for Climate Action NZ Inc against the Climate Change Commission challenging advice it provided to the Government broadly regarding progress towards its emissions reduction and adaptation goals. While dismissing all grounds for review, the Court noted that while the Commission’s task is a very important one, with climate change being regarded as “not only quickly developing into the most important issue of our time, but perhaps the most important issue humanity has ever faced”, judicial review provides an important check on the statutory task vested in the Commission; and that challenge and debate can lead to better outcomes. Unsuccessful challenges can also bring a public benefit of providing legitimacy to the Commission’s work [5].

Examples of successful public law based legal challenges have included freedom campers successfully judicially reviewing the introduction of a blanket ban on freedom camping across the Marlborough district by the Marlborough District Council [6]. Grounded Kiwis successfully judicially reviewed certain restrictions on persons entering Aotearoa New Zealand requiring that they had a place in MIQ; the way decisions were made for groups entering MIQ and the approach that was taken to applications for places in MIQ under one of the emergency categories [7]. The Court found that the MIQ system operated as an unjustified limit on the right of New Zealand citizens to enter their country. The ‘Make It 16’ claim successfully sought a declaration that the statutory provisions setting the minimum voting age at 18 are inconsistent with the right to freedom from age discrimination guaranteed under s 19 of the New Zealand Bill of Rights Act [8]. The public profile for ‘Make It 16’ gained from the proceeding (alongside the successful declaration of inconsistency) has been significant, and no doubt an instrumental part of the reason for the Government’s immediate decision to prepare legislation lowering the voting age. While that legislation seems unlikely to pass, the issue has gained wide publicity and debate. The proceeding and the publicity have also coincided, no doubt not unintentionally, with the Independent Electoral Review Panel’s consideration of a range of issues including voting age.

The judiciary stepping back?

Just as litigants are feeling empowered by the early Covid-inspired “relatively simple untechnical and prompt” judicial review claims, we have also observed some push back from the Courts on the extent of their role in judicial review.

For example, in the SfSC case, the Judge made clear that “The applicant represents those who are greatly concerned that not enough is being done. It is significant that they seek to represent those who are part of the next generation. But the issues for the Court are necessarily narrower ones. The Court’s role is limited to ensuring that discretionary powers are lawfully exercised… Climate change considerations were not relevant to the decisions…The significant issues about climate change were accordingly not for this decision maker to address. They arise to be addressed in other ways, including in relation to other statutory powers.”[9]

This is no doubt a timely reminder that judicial review is designed to ensure public decision makers follow correct decision- making processes: did the decision maker consider relevant matters? Was there proper consultation? Is the decision consistent with the evidence provided? Judicial review is not traditionally focused on whether the decision maker made the correct decision (often referred to as the ‘merits’ of the decision) – that is for Ministers and policy officials.

But while the emphasis on the orthodox approach to judicial review will be welcome relief to Government decision makers, we are starting to see that a win in Court is not the end game for those using judicial review and other public law litigation as a political tool to achieve political ends.

The High Court has also recently recognised the availability of protective costs orders in New Zealand, which (in extraordinary cases) may remove some financial barriers to public interest litigation and make it more accessible [10]. Protective costs orders can be granted early in proceedings (i.e. before the parties go to the cost and effort of preparing evidence and submissions) to confirm that costs will not be ordered against a public interest applicant, even if they are ultimately unsuccessful. These orders may be granted where a claim raises issues of general public importance, and where there is a real risk that the claim will not be pursued without the order. We expect to see more public interest groups applying to take advantage of these orders although such orders will be far from the norm in our view.

Some caution about the costs of litigation seems needed, however. Where wholly unmeritorious arguments are put before the Courts, the publicly visibility gained for a cause may be cancelled by significant costs orders for the unsuccessful party regardless of whether a claim is brought for wider “public interest” considerations. The Court of Appeal has been clear in the judicial review context in the last few years that, for costs purposes, arguments that lack merit “cannot be shielded by the cloak of public interest; it being axiomatic that it can never be in the public interest to place unmeritorious arguments before the courts”.[11] Against that, the Lawyers for Climate Change proceeding is an example where the Judge has given the successful party a strong steer that she is not inclined to make a costs order even though the case failed, given the role of judicial review “as an important check on this very important statutory task vested in the [Climate Change] Commission”.[12]

What does this mean for Government and private sector relations in 2023?

While challenges to the Government’s COVID-19 response will come to a natural end, the reactivation of judicial review as an option for challenging Government administrative decisions seems likely to continue for some time. So does the public interest and political litigation. Even as we write, local media are reporting that philanthropic organisation the Gama Foundation is applying to judicially review the Auditor-General’s approach to enforcement of repayments under the Covid lockdowns wage subsidy scheme.

In this environment, whether you are in Government or engaging with Government, through 2023 we see merit in your legal risk management processes including a pragmatic assessment of litigation risk and litigation options as you plan the best way to achieve optimal regulatory and public policy outcomes.

Footnotes

[1] Minister of Energy v Petrocorp Exploration [1989] 1 NZLR 348, at 353.
[2] Andrew Borrowdale’s challenge to the legality of the lockdown orders; Murray Bolton’s challenge to his declined exemption application from MIQ; Mr Nottingham’s application for a writ of habeas corpus/unlawful detainment through the level 3 restrictions.
[3] The majority of judicial review cases fall in this category and involve decisions to decline bail, decisions by corrections officers about the treatment of people in prisons, and decisions to decline immigration visas.
[4] Students for Climate Solutions Inc v Minister of Energy and Resources [2022] NZHC 2116.
[5] Lawyers for Climate Action NZ Inc v Climate Change Commission and Minister for Climate Change [2022] NZHC 3064 at [315].
[6] New Zealand Motor Caravan Association Inc v Marlborough District Council (No 1) [2021] NZHC 3157.
[7] Grounded Kiwis Group Incorporated v Minister of Health et al [2022] NZHC 832 at [429].
[8] Make It 16 Incorporated v Attorney-General [2022] NZSC 134 at [72].
[9] Students for Climate Solutions Inc v Minister of Energy and Resources [2022] NZHC 2116 at [114] – [117].
[10] Gordon v Attorney-General [2022] NZHC 2801.
[11] New Zealand Democratic Party for Social Credit Inc v Minister for Land Information [2021] NZCA 599 at [85].
[12] Lawyers for Climate Action NZ Inc v Climate Change Commission and Minister for Climate Change [2022] NZHC 3064 at [315].