Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
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
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
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.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- 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.