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New Zealand, High Court of New Zealand, 28 February 2022, NZHC 308‎

Case overview

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Country
New Zealand
Case ID
NZHC 308‎
Decision date
28 February 2022
Deciding body (English)
High Court of New Zealand
Type of body
Court
Type of Court (material scope)
The High Court is New Zealand’s court of general jurisdiction ‎
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
Judicial Review of an Executive decision
Area
Industrial relations / Labor law
Outcome of the decision
Claim upheld
Link to the full text of the decision
Decision_EN available on www.courtsofnz.govt.nz

Case analisys

General Summary

The case is fundamentally about the duration of emergency powers ‎of the executive that were put in place in response to the COVID-19 ‎pandemic. ‎

The emergency power in question enabled a collective employment ‎agreement to continue beyond its 12-month duration. The applicant ‎argued the Order was unlawful, and the consequence of the ‎emergency power was that it placed an unjustifiable limitation on ‎their right to freedom of association. The Applicant sought a ‎declaration that part of the Order was invalid, and that the relevant ‎collective employment agreement had ended. ‎

The application was successful. The failure to undertake a review of ‎the Order was declared unlawful and the respondents were directed ‎to reconsider the Order within 14 days from the date of the ‎judgement. ‎

Facts of the case

The applicant is an employer in the disability services sector. They ‎had a collective employment agreement with their employee’s ‎union. The agreement was due to expire on 18 October 2020. ‎Negotiations were commenced between the union and the employer ‎to start a 12-month extension contained in s 53 of the Employment ‎Relations Act making the new expiration date 18 October 2021. ‎

At the start of 2020 the government issued an epidemic notice under ‎the relevant emergency legislation. The notice expires after three ‎months if not renewed. The effect of this notice is that it suspends ‎requirements contained in statutes as part of the epidemic response. ‎More particularly the government amended s 53 so as to exclude the ‎‎12-month period during which the epidemic notice was in place. “In ‎other words, the Order ‘stops the clock’ on the calculation of the 12-‎month negotiation period prescribed by s 53(3).” Therefore, in the ‎absence of this suspension the collective agreement would have ‎expired on 18 October 2021 resulting in all union members reverting ‎to an individual employment contract. ‎

The applicant raised 5 grounds of review: that s 53 did not impose a ‎‎“restriction or requirement” that could be modified by the ‎emergency legislation; that there was no evidence that it is ‎‎“impossible or impracticable” to comply with it; that the emergency ‎notice or Order went further than was reasonably necessary, and ‎infringed on the applicant’s freedom of association. Furthermore, it ‎was argued there existed an implied requirement to review ‎immediate modification orders which the government failed to do. ‎The applicant was successful on its final claim being that the failure ‎to review the Order “without further specific consideration of ‎necessity was unlawful.”‎

The Court ordered that the respondents reconsider the Order within ‎‎14 days from the date of the judgement. ‎

Type of measure challenged
Federal government measure
Measures, actions, remedies claimed
Declaration that the Order was unlawful.‎
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Ordinary procedures
Reasoning of the deciding body

In relation to the first cause of action the Court considered the ‎balance between ensuring the emergency legislation was fit for its ‎intended purpose while also addressing concerns arising from the ‎exercise of such significant power by the executive. The Court ‎considered that the applicants had a narrow interpretation of the ‎emergency powers and such an interpretation would frustrate the ‎parliamentary intention of such legislation. Further, such a narrow ‎view would only serve to deprive the legislation “of its intended ‎remedial effect” and only “create significant uncertainty”.‎

In relation to the applicant’s second ground, sating that it was not ‎‎“impossible or impractical” to comply with a requirement or ‎restriction, the Court was of the view that this ground “seeks a ‎review of the merits of the Minister’s decision rather than its ‎legality” and dismissed this cause of action.‎

The Court also dismissed the applicant’s third cause of action that ‎the Order went further than reasonably necessary. The Court held ‎that the Order did not go further than it was “likely to be necessary in ‎the circumstances.”‎

Although the relevant emergency legislation permitted modification ‎of statutory requirements and restrictions during an epidemic, it did ‎not authorize modification of a requirement or restriction imposed ‎by a number of Acts, including the New Zealand Bill of Rights Act ‎‎1990. Section 17 of the New Zealand Bill of Rights Act 1990 ‎provides a right to freedom of association. In relation to the ‎assertion that the applicant’s freedom of association was being ‎infringed upon by having to associate with the employee’s union, the ‎Court clarified that the right to freedom of association did not ‎‎“constitutionalise freedom of contract.” Furthermore, the right to ‎freedom of association is subject to reasonable limits prescribed by ‎law as can be justified in a free and democratic society. ‎

The Court considered the applicant’s final ground of appeal more ‎favourably in that all Orders under the emergency powers issued ‎since the start of the pandemic have been “immediate modification ‎orders” which have no requirement for review as opposed to the ‎available “prospective modification orders” which are subject to ‎review. The Court identified this as having “rule of law ‎consequences” due to the lack of ministerial reconsideration almost ‎‎18 months after the issue of the Order. The Court stated that “as a ‎matter of constitutional principle all emergency powers exercised by ‎the executive are subject to reasonable temporal limits and the ‎requirement of ongoing necessity.” Therefore, the Court declared ‎that the failure to review the Order was unlawful and directed the ‎respondents to reconsider the Order within 14 days from the date of ‎the judgement.‎

Conclusions of the deciding body

The Court upheld the fifth and last claim of the applicant and ‎declared that the failure to review the Order was unlawful.‎

Balancing Fundamental Rights and Fundamental Freedoms

Fundamental Right(s) involved
Freedom of association, Public gathering, Assembly
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Right to freedom of association, s. 17, New Zealand Bill of Rights Act ‎‎1990
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. freedom of association / public gathering
General principle applied
  • Rule of law
  • Reasonableness
  • State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)

In interpreting rights contained in the New Zealand Bill of Rights ‎Act, the Court confirmed the approach being the need to assess first ‎whether a law or Order limits any rights under the Act and if so ‎whether such a limitation is justified and reasonable in the ‎circumstances. The Court reiterated that rights are not absolute and ‎in some circumstances one’s right “can only come at the cost of ‎another’s.” However, in this instance the Order was a reasonable ‎limitation on the right to freedom of association.‎

Authors of the case note
  • Solicitor‎ Kirsty Mackie, Research Assistant‎, Australian Centre for Health Law Research‎, Queensland University of Technology
  • Professor Belinda Bennett, Chief Investigator, Australian Centre for Health Law Research‎, Queensland University of Technology
Case identified by
Muhammad Zaheer Abbas‎, Lecturer, Australian Centre for Health Law Research‎, Queensland University of Technology
Published by Chiara Naddeo on 29 June 2022

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