What is Public Law, and why will it matter even more after COVID-19?

A State of Emergency and public law

New Zealand’s government has (like many around the world) sailed into uncharted waters since the end of March 2020, when a national state of emergency was declared to deal with the coronavirus. Unfamiliar authoritarian steps have been taken in the public interest, under a law that even most lawyers had not noticed on the statute books before now: the Epidemic Preparedness Act 2006.

In a time of crisis, New Zealand is fortunate to have government institutions that are prepared to be active, take leadership and intervene decisively as needed. Allied to leaders who are (for the most part) sane and balanced, the nation and its economic structure is better placed to emerge from the crisis only moderately hurt, not mortally wounded.

But what about all those pesky rules, procedures or democratic checks and balances that had to be swept aside to deal with the emergency. When do they return? Will the government give them all back when the crisis is over? How do we monitor or impose any controls on what law-makers are doing in the meantime?

The answers lie in the realm of Public Law, which is unfortunately one of those labels that probably only lawyers use, and other lawyers understand.

Ordinary folk and firms don’t use that term much, or necessarily care. They tend to see the particular expression of government in front of them: maybe a regulator seeking to intervene in their business, or a Ministry official approving a licence or determining their path forward, or a Council that collects local taxes/rates but delivers some kind of service problem to their door.  All of these engage what lawyers call public law.

So, what is “Public Law”?

Simply put, public law covers the legal relationships or interface between the many arms of government and the citizen (a person, company, charity, sports club, whatever).  There is a massive body of rules, statutory provisions, and case law that deal with the powers, rights, and obligations of the government, and how they treat or control those who are governed.

Sir Kenneth Keith, later a New Zealand Supreme Court Judge, explained it this way:

Public law, taken broadly, is about the State, its powers, and its relationships. …  concern the founding of New Zealand, the relations of Maori (or particular hapu or iwi) to the State, the relations of New Zealand to the United Kingdom, the region, and the world, and the relations of the citizen to the State. The areas are vast.   (2003) 1 NZJPIL

It also covers how affected folk and firms can challenge government actors, and hold them to account. A particular form of this is the court process of judicial review of administrative action or officials’ decisions.

Keith J also noted that there are definitional challenges. Does public law, for instance, include international law?  When many domestic statutes derive from government commitments made to international bodies such as the Financial Action Task Force (e.g. New Zealand’s Anti-Money Laundering & Countering Financing of Terrorism Act, or Mutual Assistance in Criminal Matters Act), and when our regulators work closely with their counterparts overseas (e.g. through the International Competition Network), then public law clearly does include an increasing international collaboration component.

Examples of public law work (at least in more routine times!) that I help with include:

  • advising on complex statutory interpretation issues
  • applying for licences or business approvals from government agencies
  • preparing and presenting submissions and commercial input to influence and improve upcoming law reform processes
  • judicial review challenge to the decision making of regulators and public sector parties
  • assisting regulated parties to navigate and comply with complicated frameworks of statute, regulations, rules, standards or guidelines
  • challenging (or, for the public sector, defending) a particular central or local government action – including by strategic use of non-court mechanisms in various tribunals, forums for dispute resolution, the Select Committee process of Parliament, or independent watchdog bodies such as Ombudsmen or Commissioners
  • commercial contracting, tendering and RFPs, official information process, government procurement policies and protocols when doing business with an arm of the State
  • representing affected persons in one-off Government or Royal Commission independent Inquiries.

Regulatory Investigations 

A subset of public law involves regulatory investigations and enforcement cases. This is the core area that I work across, dealing with many government agencies.  It can sometimes mean handling court proceedings, if there is a prosecution, or a judicial review or appeal challenge to an administrative decision that was made, or it may involve more up-front corporate compliance and risk management advice (trying to keep clients out of court).

That means drawing upon many years of experience to predict and react to how regulators tend to supervise, monitor, gather information, conduct investigations, assemble evidence, deal with legal privilege, and prosecute for breaches.

Each regulator will usually have its own specific statutory framework, and sector knowledge, but overarching themes and parallels in how they operate and co-ordinate can often be seen.

A post-Covid government more deeply embedded in the economy

Public law and regulatory investigations work is likely to grow and become more complex in the wake of the Covid-19 crisis. New Zealand continues to operate under state of emergency status, meaning the Executive Cabinet has been handed extraordinary powers under the Epidemic Preparedness Act, and suspended Parliament for at least a month.

The crucial decisions taken to place New Zealand in an early and full lockdown, under a “go hard and go early” strategy, will now continue until basically mid-May.   That has curtailed basic civil liberties and altered everyday life in ways those of my generation have never seen before.  And it has required regulators and officials at all levels of government hierarchy to make big decisions effectively on the fly.

For instance, the Ministry of Business, Innovation & Employment had to decide by the stroke of a bureaucratic pen which businesses can live or die (if deemed “non-essential”).  Further, decades of teachings to businesses that co-operation with your closest market rival is anti-competitive had to be reversed overnight, in the name of collaboration to tackle Covid-19. And the economic shock of sudden forced closure has caused many firms large or small to become dependent on government welfare, bailouts or public contract work for the foreseeable future.

In times of crisis, fundamental issues can get relegated – such as individual privacy, protection from surveillance technology, a level-playing field competition, fair and principled government procurement contract awards, and routine checks and balances against corruption and conflicts of interest. But those concerns have only been relegated temporarily.

The government that emerges post-Covid will be more massive and entwined in our lives than ever before. The judicial review process and other public law controls that our New Zealand democracy enjoys have never been more important.

What is Public Law, and why will it matter even more after COVID-19?