If you are dealing with government agencies in any shape or form (and let’s face it, everybody will have to at some stage) then you may be encountering “public law”.
What is Public Law? This is a broad description for the way government institutions develop policy, prepare laws, take leadership and make decisions, and also intervene, investigate, or enforce decisively when needed.
Gary is a public/government law expert, with rankings in two major independent lawyer guides:
- Global Investigations Review – annual rankings research with Who’s Who Legal, for Regulatory Investigations
- Best Lawyers guide, in the Public Law and Regulatory Practice categories
This section answers some general queries about the nature, scope and remedies available as part of Public Law. It may help demystify the way government officials wave their wands over citizens, groups and businesses.
Please explain this “Public Law” thing?
Public Law is one of those labels that probably only lawyers use, and other lawyers understand.
Ordinary folk and firms don’t use the term much, or necessarily care. They tend to see a particular expression of government in front of them: maybe a regulator seeking to intervene in their business, a Ministry official approving a licence or determining their path forward, or a Council taking local taxes/rates but delivering some kind of service problem to their door. All of these engage what lawyers call 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.
It also covers how affected folk and firms can challenge government actors, and hold them to account.
What areas are in the scope of Public Law?
Sir Kenneth Keith, one of New Zealand’s most respected former Supreme Court Judges, once 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
Keith J also noted that there are definitional challenges. Does it, for instance, include international law? When many domestic NZ statutes derive from government commitments made to international bodies such as the Financial Action Task Force (e.g. the Anti-Money Laundering & Countering Financing of Terrorism Act, or Mutual Assistance in Criminal Matters Act), it clearly does. And also when our regulators work closely with their counterparts overseas (e.g. through the International Competition Network) public law can be seen to include an increasing international component and cross-border comparative issues arise.
Another clear example is the international dimension when Government imposes targeted financial sanctions on dealing with a foreign state or its people (e.g. Russian Sanctions 2022).
Can you give examples of what public lawyers do?
As an expert in government law, regulatory regimes and public law rights, remedies, Gary’s work can include these type of cases/briefs:
- advising on complex statutory interpretation issues
- applying for licences or business approvals from government agencies
- defending parties under investigation by a government regulator or enforcement body
- preparing and presenting submissions and commercial input, to influence and improve upcoming law reform processes
- judicial review challenges to the decision-making of regulators, Councils or public sector entities
- 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, central or local government watchdogs etc
- making submissions to the Select Committee process of Parliament, including complaint for clients to the Regulations Review Committee
- formulating and pressing complaints to independent bodies such as Offices of the Ombudsmen, or the Auditor-General
- handling Official Information Act and LGOIMA processes or complaints (NZ’s governmental freedom of information regime)
- commercial contracting, tendering and RFPs, government procurement protocols when doing business with an arm of the State
- representing affected persons in one-off Government Inquiries or Royal Commission independent Inquiries.
How does Judicial Review work?
Judicial review is a specific type of Court application, asking a Judge to review the actions of some government official or agent. Known to lawyers as “Administrative Law” this includes challenges taken to the courts about a huge range of central government, local councils, and regulatory bodies whenever they take an action or make a decision impacting the rights of private citizens, groups or businesses.
It is crucial to understand that the Judges are (for the most part) interested in checking and reviewing the process leading up to the decision, and all facets of the decision-making characteristics that a government official has considered. This means that, even if the case succeeds, a Judge would rarely supplant the official’s decision or outcome with their own – normally, it will be sent back to the officials or regulatory body to reconsider its decision or start the process again, according to law this time.
There are many specific grounds of Judicial Review, but the main ones fall under 3 umbrella headings: decisions must be taken in accordance with the law/statutes (reviewable for “Illegality”); decision makers must be acting fairly (reviewable for “Procedural Unfairness” including breach of natural justice or due process); and the decision maker should be acting reasonably (reviewable for “Irrationality”).
But beware, the Court’s JR notion of unreasonable is a very high standard. Not every little unreasonable outcome is reviewable. The legal test is described as “Wednesbury unreasonableness” – inviting comparison by the Judge of a range of reasonable outcomes open to proper decision makers. Only if the outcome is plainly irrational and outside that range, such that no reasonable person properly informed could come to that decision, will this ground of JR succeed.
What about Regulatory Investigations?
An important subset of public law involves the regulatory investigations and enforcement cases, and the up-front corporate compliance and risk management advice (to keep clients out of court) that we handle.
That means working from Gary’s years of experience in how regulators will supervise, monitor, gather information, conduct investigations, assemble evidence, deal with legal privilege, and prosecute for breaches. Each regulator tends to 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.
This can include external investigations where a regulator is already involved, or internal investigations where a corporate has uncovered a problem or misconduct itself (before the regulator steps in). Often, a crisis for a firm means that both those avenues may need to be addressed in parallel, and under conditions of urgency.
For more detail see Gary’s expert article about Regulatory Investigations in NZ here.
Has Covid made government action and public law worse?
Not “worse” or “better” as such, but definitely more complex and more important than ever.
Public law and regulatory investigations work has grown and become more complex in the wake of the Covid-19 crisis. The New Zealand government (like others overseas) reacted by taken decisions over lockdowns and vaccinations or quarantine that were unthinkable in ordinary times prior to March 2020. Anytime that a national state of emergency is declared, the Executive Cabinet of Government may seek to utilise extraordinary powers. During Covid that was particularly under the Epidemic Preparedness Act, including suspending Parliament altogether for periods of time.
Granted, governments everywhere were operating in uncharted waters with the coronavirus pandemic. But that led them to curtail basic civil liberties and alter everyday life in ways not seen in several generations. An important judicial review case taken by legal academic Andrew Borrowdale sought to challenge statements from Jacinda Ardern and the Labour Party leadership that all citizens would be put into immediate lockdown from 11:59pm on 25 March 2020. His point was that only Parliament had the power to do that, not Cabinet or the Prime Minister. For the first part of lockdown, the necessary legislation or delegated legislative powers were not in place from Parliament.
In August 2020 the High Court of New Zealand agreed in a decision Andrew Borrowdale v Director-General of Health [2020] NZHC 2090. Mr Borrowdale won on one of his 3 grounds of claim, based on those Ministerial statements which “entailed directions requiring all New Zealanders to be confined to their homes and to stop all interactions with others outside an individual’s immediate household or ‘bubble’.” However, between March 23 and April 3, when the necessary regulatory Orders were properly made under statute, those directions went beyond the scope of orders in place “and therefore had no legal basis. ”
Since Covid, what has emerged in New Zealand is greater interventions by government welfare, policy, bailouts, public contracts, assistance or regulated controls. Is this now to be the new permanent normal? In times of crisis, fundamental issues may understandably need to be relegated in priority. Bu regaining control is now vital over things such as individual privacy and protection from surveillance, level-playing field competition without subsidies, fair and carefully reasoned procurement, checks and balances on corruption and impromptu political interventions.
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The government emerging post-Covid is now more massive and entwined in our lives than ever before. The Judicial Review and Public Law controls that our New Zealand democracy enjoys have never been more important.
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