I don’t have a SSRN like those cool academic types, but I wrote this review of Hanna Wilberg’s new textbook Administrative Law in Aotearoa New Zealand for Public Law Review. Since my draft post about the Law Commission’s 2026-2028 Work Programme hasn’t gotten much further than “judithal review”, I’m bunging it up here. I’ve removed the footnotes of cases and pinpoints in the text as footnotes don’t really work in a blog post. I kept one that I thought was mildly entertaining. You’ll just have to trust me for the rest.

Anyway, the book is Good and you should buy it, I reckon. Currently paperback for only $89!

—

Ask someone knowledgeable about modern administrative law in Aotearoa New Zealand and they might describe it to you as contextual and non-doctrinal. Ask a slogger in the profession like me,[1] and they’ll tell you those are euphemisms for changeable and slippery. We probably never had a stable Diplockian CCSU-type golden age of administrative law, but we are certainly now at new frontiers. There is a large‑scale project to account for tikanga Māori in our legal system, with administrative law cases often the laboratory for development. Our higher courts decline to articulate any theory for standard of review, to the point the profession has stopped asking. And the Supreme Court recently used the principle of legality to read down primary legislation – enraging half the commentariat and leaving the other half wondering what the rules about doing that are exactly.

Against that background, a new text on administrative law has never been harder to write, nor more needed. And, if it is to be any good, it has to be about now and the future – not just a tabulation of what has come before.

Hanna Wilberg’s Administrative Law in Aotearoa New Zealand is timely, vibrant and masterful. Timely because it is an up-to-the-minute account of a field that is requiring its adherents to run to keep up. Vibrant because it hums with modern New Zealand administrative law scholarship in ways that are both heartening and exciting. And masterful because Wilberg’s explanations and synthesis of the topic equips readers with what they need to know today and tomorrow.

Wilberg defines administrative law as “the law that governs public administration”. She explains that judicial review cases are the major source of our law and norms in that regard, not just for litigators but for public servants and decision-makers too. This allows the text to centre judicial review, but never to the exclusion of other important sources of administrative law – things like the Regulations Review Committee or the Ombudsman. She also makes the point that any subject area is going to bring with it is own norms and substantive law together with judicial review. The result is an account of administrative law that has a focus on judicial review, but not an obsession. It gives a compelling account of the law of judicial review without ever suggesting that is all an administrative lawyer needs to know.

That approach also positions the text extremely well in the New Zealand market. The latest edition of Joseph on Constitutional and Administrative Law is now over 1500 pages because it needs to do everything: constitutional and administrative law. Taylor’s Judicial Review: A New Zealand Perspective is primarily judicial review but is more at home with the second Cooke J than the third. And Smith’s Judicial Review Handbook (a New Zealand equivalent of Fordham) is a useful reference for litigators but does not itself offer any account of the subject beyond its chapter taxonomy and the judgement inherent in its selection or non-selection of cases. Wilberg’s work gives something that each does not: concision, modernity, and explanation. Each of those qualities is on full display throughout.

To the nuts and bolts then. The text has fifteen chapters divided into five parts.

Part One is an introduction and overview. Chapter 3 is called “Introducing Debates: The Role of Political Values and Constitutional Principles” and is the chapter which is a fulcrum on which a lot of the substantive analysis in the later chapters turns. This is not a book about theory but chapter 3 takes the time to sketch out red light and green light theories, political underpinnings, and four constitutional principles – democracy, the rule of law, parliamentary sovereignty and separation of powers. The accounts of all of these are straightforward and accessible. That is not to damn them with faint praise but the pay-off for them is really in the chapters that follow.

Part Two comprises chapters on judicial review grounds proper. There are four chapters. Three of them are familiar to Lord Diplock – procedural fairness, illegality and unreasonableness. The fourth is described as “Modern Extensions: Rights as Grounds of Review” and looks at judicial review in respect of Te Tiriti o Waitangi, international law, fundamental common law rights, and the New Zealand Bill of Rights Act 1990. Wilberg describes review on rights grounds as “one of the major areas of expansion in modern judicial review”. There is no doubt that reflects modern legal practice and the text’s taxonomy reinforces its usefulness.

Part Three is about the limits of judicial review: when it is and is not available (both in terms of justiciability and privative clauses); ways of calibrating restraint in review; and remedies. It addresses collateral challenge as part of remedy. The restraint chapter – Chapter 9 – is probably where Wilberg roams the furthest from modern New Zealand position. Drawing on Craig, Taggart and Knight, as well as much of her own previous scholarship she maps the case for why courts might not always adopt a correctness standard for questions of law (think Chevron and the chopping and changing Canadian Supreme Court approaches of the last 20 years). Wilberg is not evangelical on the topic but you get the sense she is laying out a set of tools for people to use when the time comes to make those arguments. Whether New Zealand courts will be so amenable is a different question.

Part Four is about public and private. Its first chapter addresses the public/private divide and the reviewability of things like commercial decisions by the state. Its second chapter examines public authorities’ liability for damages both in tort and in damages for breach of the Bill of Rights Act.

The fifth and final part is about administrative justice, about which more later.

Each chapter is divided into topics and within each topic Wilberg gives a short introductory sketch, then sets out a series of subheadings that move through the topic starting with the description and then addressing areas of contention or debate. That rather bland description by me does not do justice to Wilberg’s skill in doing this – consistently and well – chapter by chapter. Taking the reader through the orthodoxies and introducing and explaining debates is what a textbook is for, but Wilberg is a strong writer and a great explainer and you love to see it done well. That work also pays off the groundwork of the theory from Chapter Three. Wilberg frequently refers back to it in order to explain that debates on the substantive law are often a result of tension between competing principles. In this way we get more than mere description of debates but never in a way that gets bogged down reintroducing the theory each time.

The text also balances authority and intellectual modesty. We see Wilberg disagree with Joseph on whether a decision-maker may have an additional improper purpose; we get her view that predetermination is simply one of the forms of apparent bias and that the test in Saxmere should apply to them all; and we get her take on Fitzgerald where her careful dissection of the judgments asks us all to calm down (which I will not). For some topics she draws on her previous scholarship – such as mistake of fact – to strong effect. But those parts never feel unbalanced or self-indulgent. Equally, there are some topics where Wilberg is content to explain the debate but leave it unresolved rather than pretend to have the answer to everything. Rather than feeling shortchanged, that approach caused me to take Wilberg’s analysis all the more seriously.

It is hard to convey just how modern it all feels. Often when Wilberg makes her points, she is speaking the same administrative law language as our courts do today. It is a search for context and justification, and the eschewing of hard rules. Where divides exist, Wilberg often has a view, but her approach is not to pick a side and decry the opposite. When Supreme Court decisions are unclear, she explains why directly, but proposes a course forward. Hers is method of reconciling cases, suggesting divisions are more perceived than real, or placing matters on a spectrum rather than into camps. In less skilful hands this could be serial demurral, but Wilberg is always clear on the underlying principle. The result is a picture of administrative law especially attuned to New Zealand judgery in the 2020s. That is precisely what will make the text so valuable to modern administrative law practitioners and, I have no doubt, judges themselves.

Two other features of the sources Wilberg draws on reinforce how modern the text is. First, extremely discerning footnotes that often cite only a single recent case of high authority. It leaves no doubt it is a book about administrative law for today. Second, it is a text that serves as a sort of reef for modern New Zealand administrative law scholars. The footnotes are full of Knight, Clark, Geiringer, McLean and many, many more. It does not shirk on the classics – both from New Zealand and overseas. But it is particularly generous in its attribution of ideas and highlighting modern New Zealand scholarship. Readers will benefit not just from Wilberg’s own deep thinking, but also from being reminded (or even introduced to) classics of New Zealand administrative law scholarship.

Part Five of the text landed less strongly for me. It is about Administrative Justice – subject-specific systems of decision-making and remedial regimes short of judicial review (for example in immigration or social security decision-making). By design, the text moves away from judicial review and instead talks about features of administrative justice systems in New Zealand. The focus is largely on the architecture of different systems rather than substantive law. While it uses plenty of examples, it is talking about a topic that focuses on design of legal systems rather than the law itself: things like how rights are protected, what levels of representation are permitted, or what appeal or review rights are conferred. It is not a criticism to say these topics are more abstract, though Wilberg does try to convince practitioners that how other dispute mechanisms work will be relevant to the question of when judicial review will and will not be entertained. Despite that it is still a disjoint from the intensely practical chapters in the earlier parts and will be more relevant to policy makers or those studying administrative justice than it will be to practitioners or judges.

That said, in Part Five, Wilberg is not intending to give us the latest word in judicial review, but rather a much earlier word in administrative justice – at least in terms of an account in a New Zealand text. That is borne out by the footnotes which draw more heavily on overseas academic work than the more scant New Zealand sources. Wilberg’s generosity in the earlier parts is giving us her account of a well-trodden area. Her generosity in Part Five is giving us a foundation for further administrative justice scholarship in New Zealand.

I pre-ordered this book well before I was asked to review it because I wanted to know what a new text in administrative law would have to say. In the couple of months that I have had it, I have used it often and felt like I had a secret weapon. It is now the first text I consult. It is a matter of time before it is regularly cited in judgments.

At a time when we needed a new administrative law textbook, New Zealand is very lucky to have received this.

—

[1] If you don’t want to ask a slogger in the profession like me, you could read the foreword which is by Peter Cane and offers considerably more erudite analysis of Wilberg’s work.

I know I never really start any of these positively but, far out, what a year! Simply exhausting, and that’s only on the basis of a fairly middle-of-the-road plod by yours truly. Still, well done you for making it this far. Some of us quit law half way through and started writing letters to children instead.

What sort of year has it been? 

The Treaty Principles Bill brought out a collection of the worst takes you’ve ever heard in your life. Lawyers played an important role in the debate. Not on the merits, obviously – God. But they did do their assiduous best to out-“well actually” each other about the limits of Parliamentary sovereignty. The people opposed to the bill were united against the idea of an offensive legal fiction. The people in favour of the bill were split: some said that Parliament can legislate to say the Earth is flat; others said it doesn’t have to because it already is. The bill didn’t progress beyond second reading and was never going to but it took up time in the House and select committee that we’re now partly paying back by having what seems like every second piece of legislation hurtling through under urgency. 

The judicial appointment criteria protocol got updated to remove express reference to diversity. That is a backwards step. It has been that commitment to diversity that has meant that a full spectrum of Cookes have been appointed over the years. It didn’t matter whether your first name was Philip or Robin or Francis – you were given an equal shot at getting to the bench. Without an express commitment to diversity, I fear for the next generation of Blanchards and Gaults. 

Last year, we wrung our hands about whether King’s Counsel ought to be writing open letters. This year, Judith Collins KC fired one off, which is strange because she’s always struck me as more of a without prejudice save as to costs kind of letter writer. Last year, the Supreme Court allowed a Crown appeal about the interpretation of the MACA legislation and instated a more conservative test. This year, we decided even that wasn’t good enough and we got amendment legislation that  wasted about a million court sitting hours of MACA claims (MACA in this context standing for Make Applicants Commence Again). Last year we got a Ministry for Regulation and midway through this year a Regulatory Standards Bill. Then we got regulations made that survived about two minutes before the High Court made interim orders that they not be enforced because of questionable evidence, insufficient consultation, and improper abdication of the Minister’s decision-making to Cabinet. I’m not saying 2026 will be worse, but at this rate every Supreme Court media release will be written by Roger Partridge.

Lastly, an update from barrister life. It’s going pretty well, I think, although I’m on track to fail to achieve my one long-held, genuine professional goal in life (appear in front of Ellen France J). I have been lucky to have been entrusted with good work, I have supportive colleagues, and only one silk still hasn’t paid a five-month outstanding invoice. I’m not very good at the work-life balance thing, but we all need something to improve on. The most rewarding part has been being able to choose to take pro bono files I want to take, especially relating to lawyers’ discipline (a healthy dose of the old do what I say, not what I do irony there, but still). 

Anyway, we’re almost at the awards but, because this is 2025 and I’m writing to a legal audience, I have to mention generative AI. There we go. Moving on.

The Wayne Gretzky Medal

“You miss 100% of the shots you don’t take,” said Wayne Gretzky. This year’s recipient is Mike Heron KC, tasked with finding the leaker in the Ministry of Education. To be fair, if this had worked then what a coup!

Injudicious remark of the year

Jagose J in Deliu v Legal Complaints Review Officer [2025] NZHC 1730.

Facing a recusal application (far from the first the particular applicant has made and had declined by Jagose J) when just trying to work out some timetabling, Jagose J tells a litigant to “knock yourself out”. The comeuppance is instantaneous as Jagose J then has to write another decision explaining why he doesn’t have to recuse himself for telling a litigant to knock themselves out. 

Oration of the year

A speech is when you talk to people. An oration is when you talk to people and you have four or more letters after your name. 

The Joe Biden Memorial “Come on, man” Award

Williams J in the oral argument for Iongi v R. In trying to argue the young defendant was part of a plan to shoot the victim, the Crown points to social media videos that showed the defendant had previously handled firearms. Williams J’s response: “That would catch every Crip in the city.”

Contrivance of the year

Breakfasts with senior legal figures.

I don’t want breakfast with the Attorney-General. I don’t want breakfast with the Chief Justice. I don’t want breakfast with the Minister of Justice. And if I wanted to eat cold scrambled eggs at the Northern Club then I would go to the Northern Club and order scrambled eggs.  (This is a joke. I try not to go to the Northern Club.) 

Decision of the year

Briefly interrupting the flippancy to give a genuine plug for J, Compulsory Care Recipient v Attorney-General [2025] NZSC 103 as the most interesting judgment written by the Supreme Court in a long time. Stark facts and four different judgments – each revealing something about the authors’ judicial philosophy. I have read this maybe five or six times this year and maybe I’m making more of it than can fairly be made, but I think this judgment tells you a lot about the current make up of the Court. 

Lawyerly precision of the year

This lawyer on LinkedIn, who offered some pertinent commentary on budget cuts at WorkSafe that would likely reduce the number of prosecutions. 

“No managers set out to kill their workers”. Hmm. I suppose I can’t exclude the possibility that some managers set out to kill their workers. Better change it.

Lawyerly imprecision of the year

Todd Simmonds KC for “ifs, buts and holes”. I don’t think that’s the saying.

Legal Labubu of the year

Strangely popular. Came out of nowhere. You see it everywhere now. Has me obsessed. It’s the de facto officer doctrine! Featured heavily in Deliu v Lawyers and Conveyancers Disciplinary Tribunal [2025] NZCA 273 and then even more heavily in Glazebrook J’s (correct) dissent in Re Solicitor-General’s Reference (No 1 of 2024) [2025] NZSC 121 (despite not featuring at all in the Crown’s submissions). If you subscribe to one exception to the need for validly appointed decision makers, make sure it is the de facto officer doctrine. 

Credibility demolition of the year

Becroft J in Green & McCahill Holdings Ltd v Williams [2025] NZHC 2581. We get one of these a year if we’re lucky, and this year we were very lucky. Extensive adverse credibility findings – far too long to screenshot in their entirety here, but cop a load of these bits. 

Estate case of the year

Re Denholm [2025] NZHC 1881. The testator leaves $20,000 to each of her grandnieces and grandnephews, thinking she’s got three. Turns out she had 38!

Medium-sized law firm of the year

Meredith Connell.

South Island silk appointment of the year

There were 12 silk appointments this year and none of them were from the South Island this year. I just thought I’d mention that. Mosgiel will remember.

Virtue-signalling of the year

The New Zealand government, for including in the job description for the new Solicitor-General that the “successful applicant will be one who respects and is prepared to advocate for ‘black-letter’ law”. The successful applicant must also agree that the judges of the Supreme Court smell.

(I don’t even know who has applied to be the next Solicitor-General but the correct appointment is Aaron Martin, the current Deputy Solicitor-General, Crown Legal Risk Group – one of the most decent people you’ll ever meet and a tremendously good lawyer. Unfortunately I have jinxed it by writing this.)

Sir Richard Wild Prize for Commitment to the Rule of Law

Christopher Luxon for his comments on the re-institution of the prisoner voting ban that the courts have previously found to be an unjustified infringement on rights.

My dude, you’re the Prime Minister. I think you do have to care about what the High Court of New Zealand says.

Moderately-entertaining (alleged) offending of the year

Was it the man who (allegedly) swallowed a Faberge pendant? No, because I can’t think of any good pun about that. Was it the man who (allegedly) pretended to be a police officer but pulled over real police in an unmarked police car? No, for the same reason. Instead, this goes to the couple who were arrested for excessively heavy petting on an Air New Zealand flight (please ensure children’s fingers and toes are clear from any moving parts, seat backs were not the only thing in the upright position, etc etc.).

Discovery list of the year

No one wants an unmanageable amount of discovery. It’s the worst. It adds to cost. It’s often not central to the key issues. That’s why this year’s award goes to the people who listed the King James Bible as their sole discoverable document even in the face of an unless order. This from Haus of Flash Ltd v Tamaki [2025] NZHC 3276.

The Horseshoe Theory Award for Conduct in Advocacy

Horseshoe theory provides that extreme positions of the political spectrum often have more in common with each other than the moderate centre. So if you were to draw a diagram of the political spectrum it wouldn’t be a straight line; rather, it would bend like a horseshoe.

This can be applied with equal force in advocacy, where the conduct of top silks and the loosest units of lay advocacy have more in common with each other than at least one of those groups would care to admit. 

This award is conferred annually to an instance of advocacy by either a KC or a lay advocate that could most plausibly have been committed by the other. This year the award goes to Lawrence Anderson, for this from Menzies v Corrigan [2025] NZEmpC 186. 

Best attempt to bribe a member of registry staff before proceeding to shoot one’s self in the foot several times

This guy from Ruscoe v Houchens [2025] NZHC 2113.

Maxwell Smart Award for Court Security

We court-martialled a dude for espionage and these were the security measures. It makes you proud to be a Kiwi. 

Euphemism of the year

The Kaipara District Council paper that described the “legal” “opinion” (both sets of inverted commas mine) that went through both drafting from Franks Ogilvie and peer-review by Simpson Grierson as having sections of “no specific legal relevance”.  

Poetry of the year (flippant edition)

Downs J in Li v NZME Publishing Ltd [2025] NZHC 2986.

Perfection.

Poetry of the year (genuine edition)

The father of murdered Christchurch real estate agent Yanfei Bao remembering her as “the most brilliant colour in our ordinary days“. I still think of this line all the time. I hope you know someone like that. 

Cat of the year

Gaia

Appendix

This post has been peer-reviewed by Simpson Grierson, who agree with every word. 

Thanks for using ChatGPT. Would you like me to write this again but peppier and with more insults against the New Zealand Initiative?

Friends of Vicki McCall are fundraising to endow a prize in her name. Many of you will have known Vicki. Those that don’t could read more about her here. She was a colleague and mentor. I still think about her all the time.

You would have liked Vicki. Whatever public law in New Zealand is now, or what it will be in the future, it is and will be less for not having Vicki a part of it.

You can read more about the intended prize and support the Givealittle here: https://givealittle.co.nz/cause/vicki-mccall-memorial-prize-in-public-law

I’ve never asked for anything for the nonsense collected here. If anything, I’ve always felt readers would have grounds for compensation. But if you’ve ever felt at least mildly positively inclined to anything I’ve written, then supporting the scholarship would mean a lot. (This request doesn’t apply to the KC that got grumpy at me for my Mark Lundy tweets.)

Dear Andrew,

This is the Court of Appeal. We are writing to you in light of your touching and warm-hearted judgment recording the resolution of an appeal about care arrangements, in the form of a letter to young Claude. 

Please don’t.

Judgments need to be understood by their readers. In a case about care arrangements there is probably no more important reader than the child or young person involved. But it also the case that judgments demand precision of language and, by their nature, resolve and record complicated concepts. It is the formal resolution that the parties need, and the system requires. Departure from that mode risks imprecision and imprecision risks error and appeal, to the detriment of the system, the parties, and the child or young person involved.

Or, put another way, the senior courts issue summaries of judgments to assist in public understanding. So why can’t the summary just be the judgment itself? Because the formal site of the exercise of public power brings with it complexity and formality, no matter how much we might wish it to be otherwise. 

We know that context matters, and that your letter recorded an agreed position reached in court, rather than formally adjudicating an active dispute. We have no doubt that you picked your moment and that had the matter been bitterly contested you would not have jeopardised Claude’s interests by failing to issue a judgment in more formal terms. But the thing is, allowing letters as judgments is going to encourage some other judge somewhere to release a judgment in the form of a poem. We know our colleagues. Some of them are just itching to do that. We already have to put up with occasional secret messages in judgments, or the comedy stylings of Hammond J. Then it will be blank verse. After that, it’s not going to be long before this Court is having to issue judgments explaining why the Family Court at Masterton was wrong to determine shared day-to-day care arrangements by means of a mime performance scored to the Netherworld Dancing Toys.

So, while the LinkedIn set have enjoyed the letter and hold it up (correctly) as an example of a good judge doing a good thing, they will also realise that it is tomato sauce. Tomato sauce is nice when it accompanies a proper meal. But no one wants a plate of tomato sauce.

If you really have to, put it an appendix next time.

Lastly, we don’t watch much league here in the Court of Appeal, but if you had any thoughts on La Dorada’s run at Karaka then we’d be happy to receive your ranking out of ten. 

Warm regards,

The Court of Appeal

The Supreme Court of New Zealand has taken the rare step of asking the Attorney-General to amend her s 7 report into the Electoral Matters Legislation Amendment Bill.

Under s 7 of the New Zealand Bill of Rights Act 1990, the Attorney-General has the responsibility to “bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights”. The Attorney-General of the day performs this function independently of political affiliation. In the case of the most recent report, Attorney-General Judith Collins KC identified that aspects of the proposed electoral amendments limited the rights of New Zealanders under s 12 (the right to vote), s 14 (the right to freedom of expression), and s 25(g) (the right to benefit of the lesser penalty). The limitations on those rights could not be demonstrably justified in a free and democratic society, and therefore the Bill appeared inconsistent with rights and freedoms guaranteed to all New Zealanders. The impugned provisions included a large-scale ban on prisoners’ ability to vote and imposing a new registration deadline requiring voters to register no later than 13 days before polling day. 

In a letter from the Office of the Chief Justice to the Attorney-General, the Chief Justice of New Zealand Dame Helen Winkelmann asked the Attorney-General to “reflect whether passages of your report risk amounting to spoilers of how the Supreme Court will rule on this in three years time” and to “consider whether the report might be reissued with spoiler tags”. 

While noting that the legislation had not yet been passed, nor first-instance proceedings for a declaration of inconsistency issued, the letter made the point that these matters were highly likely to end up before the Court in due course. It continued that “[a]ny acknowledgment by the senior law officer of the Crown at this early stage that the laws infringe rights and cannot be demonstrably justified are highly likely to be cited in any Supreme Court judgment. For that reason the report might be said to unfairly give away the result to anyone wishing to keep as a surprise what we are going to say in, say, Q4 2027 or Q1 2028”.

In comment to the media, the Attorney-General said she would not be reissuing the report with spoiler tags and that “I do not accept the Supreme Court can be concerned about spoilers when the courts of New Zealand have already held that blanket prisoner voting bans are inconsistent with the Bill of Rights Act. The fact that this government’s intended law breaches rights is a matter of long-standing public record”. 

A spokesperson for Crown Law said that Crown lawyers were presently booking leave for Q4 2027/Q1 2028.

2026

Sub-contractors in court following cost overruns in seismic strengthening of wharf piles required to protect against ongoing Interislander rammings.

Golden Mile development setback after NZTA’s permission to cull pedestrians ruled unlawful by High Court. 

LIVE WELLington sues to extend character protections to traffic jams around the Basin Reserve.

2027

Four-laning of Chews Lane enjoined by High Court. Successful challenge by Guardians of the Golden Mile who want six-laning.

Legality of Kate Sheppard and Carmen Rupe “green men” challenged by Concerned Ratepayers for Pedestrian Safety and Ulterior Motives.

Challenge to non-notified consent to turn Cobham Drive into a single two-kilometre long pedestrian crossing. 

Speaker’s decision to ban cars from the steps of Parliament challenged by local business associations who say their customers need the ability to park centrally.

2028

Challenge to Commerce Commission grant of permission for airport runway extension. Ten week hearing in the High Court. The most junior counsel to appear is Justin Smith KC. Combined daily legal fees exceed $500,000.  McHerron J spends six months of his life writing the decision. Three paragraphs of a 400-page judgment will come to be regularly cited for the meaning of an obscure subsection of the Commerce Act 1986. The rest will be forgotten when the case goes on appeal.

Challenge to bylaw prohibiting tooting in the Mt Victoria tunnel brought by applicants whose custom car horns blare short excerpts of Mein Kampf. Funded by the Free Speech Union. 

Cable car sued for some reason, probably.

It’s been a year of threats to the legal and constitutional order: a Minister calling a judge a Communist! A Minister calling a judge a Communist again when explaining what they meant the first time! A Ministerial apology where we all waited to see if they’d call a judge a Communist a third time!

The plot was lost somewhere around February when Smith v Fonterra set off tizzies so strong that, as of December, some victims have not yet re-hinged themselves. There is, as yet, no sign of the plot returning but we’re left with having to explain to ten per cent of the profession that they are not having an ordinary reaction to an orthodox civil procedure judgment.

It hasn’t all been fun, though. Sentencing policy is on its way back to the dark ages (the 2010s). There have been more Gary Judd opinion pieces than days to submit on half the Bills before select committees. And a Treaty Principles Bill shows that our commitment to a foundational constitutional document is alive and well as long as that document is the National-ACT coalition agreement. (Please indicate your disapproval of this joke in the traditional way – by voting for it at first reading.)

Personally, I blame the Supreme Court 20 Year Anniversary Conference for setting the tone for the year. It’s a strange birthday party where you invite people to say slightly mean things about you, but there you are. What started as a quasi-academic conference boiled over into about two media rounds of saying the Supreme Court was doing values, not law. It didn’t seem to occur to any of the interlocutors that if the judges really were substituting their own values for the rule of law then we’d have a legal system based on Werther’s Originals. But that didn’t stop every NZ Herald editorial sounding like it was ghostwritten by Muriel Newman. And when good old LawNews started insisting to its readers that freedom of speech meant it had to keep publishing the worst takes known to man, it became apparent to everyone that things were going to get worse before they got better.

Unfortunately, the institutionalists have played a shocker this year. There was no organised response to any of the March madness. The best we got was a statement a couple of weeks afterwards from the Law Society president that amounted to asking everybody to remember to use a coaster, while barstools were being hurled across the room. Plus some dude online, I guess.

The thing is, you don’t always get to choose when someone puts a coin in the Whack-a-Mole machine. But, when someone is silly enough to do that, you’re going to get moles whether you want ‘em or not. Your only choice at that point is whether you take up the squeaky rubber mallet. And if you don’t, there are an awful lot of moles.

So this year we got:

• A New Zealand Initiative Report wanting to re-enact s 4 of the Bill of Rights Act but in capital letters and start judicial purity tests.
• Veiled threats to the Waitangi Tribunal.
• Proposals to cap sentencing reductions for personal mitigating factors.
• A return of three strikes.
• The Treaty Principles Bill. (Everyone knows the Treaty Principles were invented by those activist, anti-establishment ne’er-do-wells with names like Sir Gordon Bisson and Edward Jonathan Somers QC. For 36 years the Court of Appeal’s Treaty principles have worked to the Crown’s advantage as a conservative stopgap against the inevitability of Te Reo text. Why Ministers of the Crown would want to blow up one of the best legal window-dressing tools the Crown has is lost on me.)
• The Regulatory Standards Bill.
• Fits of the vapours at updated Prosecution Guidelines. (And, can I just say, the best way to politicise the Guidelines is to withdraw them the first time some cranks don’t like them. I mean, come on, team! Moles everywhere!)

And while the fightback on the New Zealand Initiative report was pretty good, I’m sorry to report it’s still at least 5-1 to the baddies this year, and the one point was only thanks to overburdened stalwarts like Te Hunga Rōia Māori o Aotearoa fighting the good fight like they always do.

This is all immensely depressing for people like me who would prefer to be making fun of the Supreme Court for being weird and out of touch and not doing anything with public law. Instead, I find myself having to defend the same judges that took 876 days to issue judgment in Royal Forest and Bird. I pray that 2025 is a year that other people are out there boosting our courts and judges so that the 2025 Law Awards can be me saying mean things about the Supreme Court like normal.

Anyway, here are the awards.

 

Understatement of the year

Suppression order of the year

The Justices of the Peace that suppressed their own names when hearing Kerry Prendergast’s parking ticket case. You’ve heard of the The Secret Barrister but have you heard of the Secret JPs?

Far from being some threat to open justice, this is the justice system working as intended. Every legal system needs 20-30 judicial JPs, 8-10 District Court judges, and 1.5 High Court judges just making the most bananas calls you’ve ever seen.

Bad statistics of the year

Winner: NZ Lawyer Magazine

The NZLS Gender Equality Charter Survey found only 34% of equity partners were women.

But NZ Lawyer inverted that and reported that 34% of women lawyers were equity partners.

Progress *is* possible when we do bad stats. Congratulations to 34% of women lawyers!

Runner up: the appellant in Tamiefuna v R (SC51/2023).

You can’t reason backwards from the amount of evidence admitted to say the section is too generous! That overlooks the evidence the Crown does not apply to admit because it assesses it will not meet the s 30 test. The only evidence the Court ever assesses is the evidence that the Crown thinks stands a fair chance of passing the test. The fact that 80% is then admitted just bears out the Crown’s assessment. It doesn’t mean the test is too permissive! Or, at least, it’s not a safe basis to conclude what the appellant asks the Court to conclude!

Unwelcome symbolism of the year

Hard To Find Books in Dunedin. Law: a half shelf. Anarchy: a full shelf.

Best case involving a dog

“A dog, like a person, is entitled to credit for a lifetime of good behaviour.”

So wrote Boldt J in Shramka v South Taranaki District Council [2024] NZHC 3064. Dexter the black labrador/ridgeback cross might have got a sense of which way the appeal against his destruction was going when his Honour managed to record he was a “beloved family dog”, “relatively elderly”  and with “no record of his attacking anyone before” by paragraph 4 of the judgment. As a result of upcoming sentencing reforms, Dexter will soon be allowed greater reductions for personal mitigating factors than his owner.

Second best case involving a dog

The Human Rights Review Tribunal declining to award disbursements for the cost of kennel accommodation for a party’s dogs in Cunliffe v Helensville Primary School Board of Trustees [2024] NZHRRT 28.

So it’s yes to black lab/ridgeback crosses and no to boarder collies.

Sir Richard Wild Medal for Commitment to the Rule of Law

The rule of law requires that the law be knowable in advance. Concerned that young people might miss out on vital information about populist sentencing reform, Minister of Justice Paul Goldsmith reached out to the natural home of ram-raiding youths – LinkedIn – to give them an important update.

Headline of the year

Flimsy defence of the year

When challenged about Shane Jones calling Gwyn J a communist judge:

I mean, okay. But if I call a judge childish, I can’t justify that by saying that it is a matter of public record that the judge was once a child.

Communist judge of the year

It has been explained to me that I’m not allowed to do this one.

Acronym of the year

An organisation for our times: Calm Alarming Law Madness!

Ground of appeal of the year

Now, I’m no one’s idea of an employment lawyer, but when the Court of Appeal grants leave in these terms that seems bad to me.

Social media power user of the year

You are the Attorney-General Judith Collins.

It is 21 March. At 4.00pm, you are called to the Inner Bar.

The ceremony finishes. There are some pleasantries. People shake your hand. Your dinner reservation is for 6.30pm. Just enough time to hop on Twitter and start arguing with people about whether and how New Zealand criminalises hate crime.

You are still wearing your ceremonial wig.

Most concerning footnote formatting of the year

The New Zealand Council of Legal Education’s submission to the Regulations Review Committee about the inclusion of tikanga in the law school curriculum. A crisp, calm explanation of the Council’s role, that was fronted by a crisp, calm Campbell J. At times, one of the best pieces of legal writing I’ve read this year (it really kicks into gear from para 34 onwards).

But its footnotes. Check out the margins on this bad boy. Christ!

Best Metaphor for the Common Law

Ambitious argument of the year

The Crown in Choi v Attorney-General [2024] NZHC 3678 which ventured that an Act called the Victims’ Rights Act did not confer rights on a victim, a submission that Radich J called “a difficult one”.

Congratulations to all the winners.

I leave you with two things.

First, a quote from Sir Grant Hammond. It’s evergreen but you might think it particularly timely. Keep it in a drawer somewhere and when things seem particularly fraught in 2025, refer to it as necessary.

Second, I went to the bar this year. My background is in being a lawyer for institutional clients of various kinds which is mostly what my practice at the bar still is. But in the last two weeks one of my first private clients came to me with a problem that was really important to them and asked for my help. So I helped them by using the skills that other lawyers have taught me over the last ten years or so, and other lawyers played their part too, and there was a really good result, which I know there often isn’t. But I helped make it happen and… it felt really good?! (This is not a brag – the other private case I did this year, Venning J called my argument misconceived and the Crown Counsel literally ran out of words in the hearing to explain how I was wrong.)

I’m still turning the experience over in my head – the power that lawyers have to help people. I think it feels strange because too many years of public law acting for the Crown and regulators has left me thinking of power in the law as associated with actual legally-conferred power like a judge with the power to make decisions or a Minister conferred statutory powers of decision. And without wanting to have you all shout at me for not discovering the obvious until I’m 34 years old, the responsibility to use the power that lawyers have to help more clients is something that has me excited about 2025. But first a rest. Stay well.

It’s what we were warned about, but we didn’t listen. Our Supreme Court judges whipping out the stiletto of judicial supremacy from below their robes and lunging at the rule of law. The statute books used as mere kindling for fireplaces in judicial chambers while the flag of juristocracy flies from 85 Lambton Quay. When the post-mortem certificate of Lady Justice is signed, the decision of A, B and C v D and E Limited [2024] NZSC 161 will be listed under cause of death.

The case purported to be about whether fiduciary relationships exist between parents and children and whether they persist into adulthood. In its judgment, the Court subversively confirmed the indicia for fiduciary relationships are those found in the leading Supreme Court decision of Chirnside v Fay – a decision written by Communist judges Blanchard and Tipping JJ. And Paper Reclaim? Amaltal v Maruha? Bristol and West Building Society v Mothew? The way that this decision fits so well with all of these cases is all the confirmation that you need that judicial subversion of democracy has been a decades-long project.  

A veiled judicial power-grab then ensued as the Court rejected the leading Canadian approach as offering too little guidance and preferring the long-standing New Zealand approach “as providing greater clarity as to the circumstances in which a fiduciary relationship will be found to exist” (at [50]). While on its face this might seem to bring greater certainty to the law (and reduce judicial discretion at the same time), you would have to be pretty credulous to accept that at face value. Then, in what I can only assume is some sort of double bluff, the Court declined to adopt more recent Kós J equitable murmurings in Dold v Murphy that sought to supplement Chirnside v Fay. It instead reaffirmed the general approach in Chirnside v Fay.

Having brazenly committed itself to an application of long-standing principle, the Court then considered how it should apply to parent-child relationships. As the Court observed, “[t]he law in relation to the coincidence of fiduciary and family relationships is not settled in New Zealand” (at [55]). Naturally that meant the judges could just do whatever they wanted. Taking full advantage, and under the pretence of a careful tour of domestic and Canadian authority, the Court drew out themes from cases about fiduciary relationships in caregiving relationships with a view to identifying principle. Keeping its insidious motives for these techniques hidden, the Court confirmed that the Chirnside approach meant that “a fiduciary relationship exists between a parent and a minor child while that child is in the parent’s care” (at [63]). This outcome was suspiciously aligned with the tenor of the authorities that it had reviewed and with both parties’ positions.

But if the parent-minor child relationship was to be considered fiduciary, what are the extent of the parent’s duties? Here, the Court shamelessly invented two important reasons why the duties should not be broad. The first of those was because Parliament has legislated to regulate the parent-child relationship “where appropriate and in limited circumstances” (at [65]). In what I am choosing to treat as veiled sarcasm, the Court recognised “there are broad and complex issues of social policy to be weighed in determining just where such regulation is appropriate” that it pretended made judicial intervention inappropriate (at [65]). Second, the Court recognised that it was “important that the law not intrude unnecessarily upon a relationship which is primarily based upon natural love and affection, and which is so multifaceted” (at [65]). Alas, by sticking its oar in in this way it simply confirms the Court’s typical insistence that judges be able to have the final say in all aspects of society.

Then, the Court further confirmed an approach of one of the Court of Appeal judgments, giving clarity through express endorsement and resolving a difference in approach. The Court then proceeded to apply the law to the facts in a straightforward way that resolved the case.

That wasn’t enough for the Court though. It went on to reject other submissions from counsel assisting because the claims were not grounded in the pleadings. This resort to standard concepts of civil procedure had chilling parallels with Smith v Fonterra where it had declined to strike out a claim on the basis it disclosed reasonably arguable causes of action.

And then when invited to apply tikanga as relevant to the recognition of fiduciary duties, the Court said (at [83]):

We do not deny the great wrong which was done to the appellants by their father. We accept that tikanga provides another framework for explaining and understanding the harm done to the appellants. But this is not a case where the law had no ability to respond to the justice of the appellants’ claims — there were claims available to them which were not pursued at the time, albeit for understandable reasons. The developments the appellants seek in the law would require a reworking of the fundamental concepts of fiduciary relationships which is disconnected from their doctrinal underpinnings and would be incautious, creating great uncertainty in the law.

All of this is a disconcerting departure from the common law method, the rule of law, democracy, certainty, predictability, consistency, respect for Parliament, and not mowing your lawns after 7pm. Fortunately, the answers are clear. Judicial purity tests will rid us of these turbulent priests of the law, and good luck with judicial activism when we amend the Bill of Rights Act so that section 4 is written in capital letters.

But, in the meantime, the next time you hear about claims of judicial activism, I want you to remember this case.

The New Zealand Initiative will be familiar to readers as an organisation that accidentally let its Law Reports subscription lapse in 1915 and has been attempting to style it out ever since. In an exclusive, we are proud to publish an extract from the New Zealand Initiative’s latest publication – a jokebook full of classic gags and side-splitters bound to delight KCs from ages 75 to 95.

With a foreword by Professor Richard Ekins KC.

***

Why did the chicken cross the road?

Values, probably.

***

How many people does it take to change a lightbulb?

None, changes are for Parliament.

***

“Doctor, doctor! I keep seeing activist judges everywhere!”

“Don’t you think you’re overreacting?”

“Oh my God, you’re one of them!”

***

Your mother is so fat that she makes the thick conception of the rule of law look thin.

***

Knock knock.

Who’s there?

Parliament.

Parliament who?

Don’t start with this again, your Honour!

***

What’s black and white and red all over?

The Bill of Rights Act with my tracked changes on it.

***

That’s what she said. Glazebrook J. In this speech one time.

 

 

The advent of a lawyer membership scheme for the Free Speech Union is a timely occasion for a quick think about the empirical basis for the claim of an erosion of freedom of speech in the profession.

It’s true the Law Society supported increasing the groups of people protected by discrimination and hate speech laws, which I read as support to ensure consistency within a legal scheme that presently offers selective protection to some groups but not others. I do not read its submission as supporting a lowered threshold. To the contrary, near the start of the submission the Law Society said this:

2.2 The right to freedom of speech is an important right, protected by the New Zealand Bill of Rights Act 1990 (BORA). The Law Society stresses the need for vigilance in safeguarding this right and that any limitation on it must be demonstrably justified as reasonable in a free and democratic society.

…

2.4 There is a need to be very cautious about deploying the criminal law in this context, and it requires evidence of harm of sufficient magnitude to justify doing so. This means policy- makers need to consider, in relation to each of the grounds of discrimination in the Human Rights Act 1993, whether there is a basis for carrying that ground across to the hate speech provisions in section 61 (and the new Crimes Act provision to replace section 131).

Then there is the Hardie case, a decision about natural justice that keeps being mistaken for a case about freedom of speech. Upon receiving an anonymous complaint about emails that two lawyers sent between themselves, the Standards Committee determined to take no further action because doing so would be “disproportionate to the public interest in pursuing the investigation further” (at [32]). The lawyers’ (justified and upheld) right to be aggrieved at an adverse comment to which they had not had a chance to respond seems to have overshadowed the fact the Standards Committee’s response to the complaint was to end the complaint process before it even had to consider a substantive determination, on the grounds the complaint did not justify troubling the parties further.

These things are against a background of the Lawyers and Conveyancers Disciplinary Tribunal reminding the profession and the public that “[t]he remedy for ill-conceived speech is more speech, not enforced silence”, and that “freedom of expression must be jealously guarded and that lawyers, within limits, must not be fearful of saying unpopular things. If that were to occur, they might be dampened or restricted in their role in advancing the democratic rights of their clients” (Nelson Standards Committee v Grey [2023] NZLCDT 33 at [1] and [54]).

They are also reinforced by the cavalcade of opinion pieces about values, judicial activism and our Supreme Court earlier this year. Hesitancy on the part of lawyers to share unpopular views was not a vice on display. So numerous were the editorials that, even now, neither fish nor chip in this country wants for wrapping.

Vigilance for freedom of speech is a good thing. The profession should not be complacent. And any new group of lawyers is to be welcomed.

The trick is not bursting in to a room full of pilates instructors wielding a defibrillator.