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Public Law Update: Novel arguments, decisive action and apologies

February 01, 2018


Partners Sally McKechnie

Māori business Government reform and public policy Public law

Welcome to the second edition of the Public Law Update. This edition focuses on three recent cases involving judicial review and the exercise of discretion by a decision maker.

The Ngāti Whātua decision raises potentially ground breaking points around the application of tikanga in Ministerial decision making and may be headed for a Supreme Court decision. Re Long explores the use of the inherent jurisdiction for practical purposes and the Broadcasting Standards Authority decision on Mike Hosking shows that informal actions, such as a good grovelling apology, can be of great use when one finds themselves in hot water.

Ngāti Whātua Ōrākei Trust v Attorney General - the reach of tikanga?

The Ngāti Whātua decision [2017] NZCA 554 concerns the extent of the comity principle (the idea that the courts should not interfere with the processes of parliament) and considers novel arguments over the place of tikanga in Ministerial decision making.

The Ngāti Whātua Ōrākei Trust (Ngāti Whātua) applied for declarations from the High Court that the transfer of land in the Auckland Isthmus to Ngāti Paoa and Marutūāhu would be unlawful. Ngāti Whātua claimed mana whenua over the land and alleged the Crown’s actions in transferring it was in breach of the Treaty and tikanga.

Ngāti Whātua, in both the High Court and Court of Appeal, argued that they had ahi kā (continuous occupation and control of land) and mana whenua (customary influence and control over land). They alleged that earlier Treaty settlements required the Crown to make any decision relating to the land in accordance with tikanga and in consultation with Ngāti Whātua. These arguments, if accepted, had the potential to alter the Treaty negotiation landscape. It would have been the first judicially enforceable invocation of tikanga outside the Waitangi tribunal and Māori Land Court and could import an obligation for the Crown to act consistently with tikanga in all Treaty settlement matters.

In rejecting the claim, the High Court, and now the Court of Appeal to an even greater extent, relied on the orthodox comity principles and did not extensively engage with the tikanga and mana whenua arguments.

The case may well be appealed to the Supreme Court. Given the recent ground breaking Watakū Supreme Court decision [2017] NZSC 17, the tikanga arguments may find greater favour. These considerations could become essential factors that the Crown must take into account when negotiating Treaty settlements, and fundamentally change the Treaty settlement process.

Re Long - High Court - the scope of inherent jurisdiction

The Long decision [2017] NZHC 3263 was an application from Ms Lee to obtain sperm from her deceased husband Mr Long. Ms Lee applied ex parte for an urgent order for a pathologist to remove sperm from her husband’s body and store it, with the intention for her to use it later to have another child.

Justice Heath made the order for the sperm to be extracted, citing the Court’s inherent jurisdiction. The Court applied Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 and held that the New Zealand common law position is that there can be no property rights in the dead body of a human being.

He then applied Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1 in extending this principle to include any part of a dead body, including genetic material. He therefore held that Ms Long had no property interest in her dead husband’s sperm. In addition to the striking subject matter, this case is interesting for the flexibility of the inherent jurisdiction it demonstrates.

The inherent jurisdiction is traditionally associated with the power of the High Court to decide procedural matters, make interim orders, and hold parties in contempt.

In this case, Heath J found there was no legislation governing the circumstances in which a dead man’s sperm could be harvested. Ethics Committee approval was required and this was not feasible on the timeframe. Heath J used his inherent jurisdiction to make a pathologist and Fertility Associates agents of the Court to harvest and store the sperm. Without this decision, any later discussion on possession and use would be purely academic.

Justice Heath, in the later part of his judgment, is clearly influenced by the principle that the Court should not make decisions where there is a more appropriate body. He considers the Ethics Committee should decide the substantive matter. However, his Honour was comfortable acting much more creatively in the short term, to preserve that decision maker’s ability to be able to make a meaningful decision.

McCaughan v Television New Zealand Ltd - Broadcasting Standards - the power of clarification

The McCaughan decision (2017-083 18 December 2017) relates to public provocateur Mike Hosking’s comments before the 2017 election:

  • On 23 August 2017, during Seven Sharp, Hosking remarked to his co-presenter Toni Street that “… you can’t vote for the Māori Party because you’re not enrolled in the Māori electorate, so what are you going to do now?”. That comment led to public and media outcry.
  • Under the pressure, TVNZ agreed that Hosking would clarify his comments the following evening.
  • Instead, on 24 August, Hosking instead stated on air; “Now, the fact that anyone can vote for them as a list party I automatically assumed we all knew given we have been doing this for 20 years for goodness’ sake and it went without saying. So hopefully that clears all of that up”.

The complainant alleged that Hosking’s 23 August statement was inaccurate and misleading. The Broadcasting Standards Authority (BSA) agreed and held that Hosking’s initial comment was presented as fact and was more than a throwaway line. It was therefore inaccurate and had the potential to mislead viewers as to whether they could vote for the Māori Party.

It further held that Hosking’s remark on 24 August did not “clear all of that up”. The comment was held as flippant and too general to adequately remedy the inaccuracy of his previous comments. Although the BSA recognised the importance of “free, frank and robust political speech during the election period”, it held the potential harm of the statement outweighed Hosking’s right to freedom of expression.

Had Hosking taken the matter more seriously on 24 August, he may well have avoided the complaint being upheld.

As it was, the BSA ordered TVNZ to broadcast a statement no later than 21 December summarising Hosking’s comments and correcting them. This order was made following Hosking’s resignation from Seven Sharp and the conclusion of the show for 2017 and he did not make the statement himself.

Not one to be cowed, following the decision being released, Hosking used his “Mike’s Minute” segment on Newstalk ZB to call the BSA “humourless, earnest clip-boarders”.

For all the colourful language, this decision serves as a useful reminder of the value of clarification and a serious apology, especially when dealing with public regulatory bodies. If Hosking had corrected himself of his own accord, the complaint would likely not have been upheld and the matter would have been resolved within 24 hours.

Contributors: Catey Boyce, Harrison Cunningham