structure

Exam: which structure for each Part?

A: MCQs (read every option). B: NZBORA problem or Parliament/rule of law essay. C: tikanga, conventions or Ombudsman/OIA. D: JR problem + Ombudsman/OIA. E: statutory scenario – JR + DL and/or Treaty

Exam timing from 2:30pm

A by 2:42; B by 3:17; C by 3:35; D by 4:30; E by 5:25; check until 5:30

Every answer – basic method

Issue → rule with case → apply to facts → conclude; note what the facts don't tell you

JR structure – four steps

(1) Amenability – theoretical + justiciability; (2) standing; (3) grounds; (4) relief

JR step 1a – theoretical amenability

One sentence: statutory power (JRPA s 5) + statutory power of decision (s 4); agent irrelevant (Reckitt & Colman); prerogative (CCSU) and third source (Quake Outcasts) reviewable at common law

JR step 1b – justiciability

Public in nature? (Bayline; Hopper). Too political / no legal yardstick? (Curtis). Tikanga rights can be a yardstick (Ngāti Whātua Ōrākei)

JR step 2 – standing

Sufficient connection, applied liberally (Finnigan; Great Christchurch Buildings Trust)

JR step 3 – three heads of grounds

Illegality; unreasonableness; procedural impropriety (heads optional – argue every arguable ground)

JR – illegality grounds checklist

Outside four corners / error of law (Hart v DG; Ngāi Tai); improper purpose (BCH; Re Cavenett); relevant considerations (CREEDNZ; BCH); abdication (Christiansen); error of fact (ANZ Sky Tours; Daganayasi)

JR – unreasonableness checklist

Woolworths test; sliding scale – decision-maker, nature of decision, impact (Woolworths/BCH deferential; Thompson, Kim intense; Hauraki; contrast Cooke J in Students for Climate)

JR – procedural impropriety checklist

Natural justice/consultation (Daganayasi vs CREEDNZ); legitimate expectation (Re Finucane; Hart v DG; Te Pou Matakana); bias – pick standard first (Auckland Casino; McGrath; English; BCH)

JR – natural justice factors

Statutory framework; consequences for those affected; the decision-maker

JR – legitimate expectation elements

Promise/practice/policy; reasonable reliance; remedy (can be defeated on genuine policy grounds – Re Finucane)

JR – choosing the bias standard

Who decides, in what capacity (political vs quasi-judicial), impact, how diffuse – then presumptive, apparent or predetermination

JR step 4 – relief

Say it's discretionary first; presumption it follows (Air Nelson); factors: good administration, delay/conduct, third parties, commercial community, utility; choose remedy; no damages except NZBORA

JR conclusion

Likely outcome on each ground + realistic remedy

DL structure – starting point

Presumption of validity; 'ultra vires' is the conclusion – the ground is why it falls outside the Act

DL step 1 – empowering provision

Text + purpose (Firearms Owners); unqualified powers still limited (Unison; Padfield); presumptions – NZBORA/natural justice (Drew; Cropp), Treaty, no taxes by DL, other Acts; Treaty clause exhaustive? (Hart v MDC)

DL step 2

What does the regulation actually require or prohibit?

DL step 3 – reasons it may not fit

Repugnancy (Taylor); unjustified NZBORA limit (Drew; Cropp/Four Midwives if justified); improper purpose / considerations (Brook Valley; Firearms); uncertainty, sub-delegation, unreasonableness (One Foundation); consultation rarely read in (Brook Valley)

DL – temporary/emergency regulations

Duty to keep under review and amend/revoke within a reasonable time (Free to be Church)

DL – relief and parliamentary controls

Relief discretionary (Air Nelson); invalid DL void. Controls: RRC (SO 326–327), disallowance (Legislation Act ss 114–117), Cabinet Manual [7.85]

Treaty in JR – where it goes

Inside Grounds of the JR structure, whenever Māori interests appear

Treaty in JR step 1 – what does the statute say?

Broad clause (SOE s 9 restraint; Conservation Act s 4 positive duty); elaborated clause (EEZ s 12 not exhaustive; LGA s 4 exhaustive; NZPHDA s 4); no clause → principle of legality (Trans-Tasman; Mair v Lampp)

Treaty in JR step 2 – principles engaged

Partnership, active protection, redress, consultation, subject to kāwanatanga (lands case); limited by reasonableness (broadcasting); health: tino rangatiratanga, equity, options (Haumaru); tikanga via clause or legality

Treaty in JR step 3 – does the requirement fit?

Apply step 1 to the specific demand: strong clause → substantive outcomes, no veto (Ngāi Tai); exhaustive clause → nothing extra (Hart; Smith; Community Pharmacy); no/non-exhaustive clause → read in if consistent with Act (Trans-Tasman; Mair)

Treaty in JR step 4

Was the requirement met? If not → breach

Treaty in JR step 5 – choosing the ground

Misread clause → error of law (Ngāi Tai); didn't consider → relevant considerations; outcome breaches restraint → illegality (lands case); broken promise → legitimate expectation (Te Pou Matakana); no consultation → natural justice

Treaty grounds overlap – what to do

Argue best fit first, add the overlapping ground in one line; unreasonableness unlikely

NZBORA (Act/Bill) step 1

Does NZBORA apply? s 3(a) branches / s 3(b) public function (Ransfield; Moncrief-Spittle); limits of s 3 (Smith v AG)

NZBORA step 2

Which Part 2 right is engaged? Name the section

NZBORA step 3 – Hansen steps

Intended meaning → apparently inconsistent? → s 5/Oakes → justified: stands → not: s 6 meaning? → none: s 4 applies

NZBORA – Oakes limbs with cases

Important objective (Arps); rational connection (Arps); minimal impairment – range of reasonable alternatives (New Health 2018); proportionality

NZBORA – rights with no s 5

ss 9, 25, 26 – go straight to s 6 (Fitzgerald)

NZBORA (Act/Bill) step 4 – remedy

s 6 reading; declaration of inconsistency (AG v Taylor); for a Bill, AG s 7 report (red flag only)

NZBORA – decision or regulation structure

s 3 → right engaged → Oakes applied to the decision/regulation (Moncrief-Spittle) → unjustified: unlawful / regulation outside Act read with s 6 (Drew; Cropp); justified: valid (Four Midwives) → temporary DL review duty (Free to be Church) → remedies (Air Nelson; Baigent)

Tikanga problem – intro

Name the take and all parties, including the place/taonga; tikanga is a system, contextual not prescriptive

Tikanga problem – Step 1 (a)–(f)

(a) structural; (b) relational + source of mana (take tupuna vs take hoko; Ngāi Te Hapū indicators; Ngāti Hokopu; mauri); (c) responsibilities ranked; (d) take/utu/ea; (e) other concepts; (f) processes

Tikanga problem – Steps 2 and 3

Kōrero tuku iho (say what you'd look for); similar situations – same iwi/hapū → same waka → any iwi; not binding precedent

Tikanga problem – finish

Resolution to restore ea (usually hui; consultation matched to responsibility) → interface with state law (Treaty clause, Privacy Act s 21(c), relevant considerations, Te Pou Matakana) → limits: consult pūkenga/iwi

Tikanga essay structure

Thesis (room, but on Western terms) → why the tension → sections: provision → helps → limits → example (NZBORA ss 19/20/5; Privacy Act s 21(c); Waitangi Tribunal; checkpoints) → conclusion

Ombudsman complaint – structure

Jurisdiction (Sch 1; administrative; s 13(1)) → can it be made (s 17; s 13(6); appeal bar ss 13(7), 17) → process → s 22 grounds → outcome (case note 603162; not binding; s 22(5)) → compare with JR

OIA request – structure

Who can ask (s 12) → official information? → availability (s 5) → process (20 working days; s 15A; urgency) → withholding (s 6 likely; s 9 necessary + public interest; s 18; s 10; no blanket – Kelsey) → review (Ombudsman ss 28, 30, 32; s 31) → JR

Can a government actor do X? – structure

(1) Hard law: legal power? statute (Borrowdale), prerogative (CCSU), third source (Quake Outcasts; Hamed); rule of law (Entick; Webster; Fitzgerald v Muldoon). (2) Soft law: conventions, Cabinet Manual, accountability. (3) Conclude

Conventions question – structure

Define → identify (Jennings) → apply (ministerial advice; confidence; caretaker; collective responsibility; individual responsibility) → consequences (non-justiciable, political) → evaluate

Limits on Parliament – structure

Supremacy (Dicey; s 15; AG v Taylor) → hard law (s 16; s 268, Ngaranoa) → soft law (Pickin; LDAC; s 7 reports) → common law limits? (Cooke; Kiwi Party) → NZBORA (s 4, s 6, DOI) → political limits (Prebble) → conclude

Privilege and comity – structure

Define comity (PPA s 4(1)(b)) → Parliament restrained (sub judice; judges) → courts restrained (free speech PPA s 10/art 9; exclusive cognisance; Pickin; Kiwi Party) → apply: is it a proceeding?

'Explain and discuss' quote – structure

Thesis → explain the concept → 2–3 arguments each with a case → counterpoint → conclusion back to thesis

Waitangi Tribunal claim – structure

Jurisdiction (s 6; bars s 6AA, s 7; Crown only) → principles (lands case; Haumaru; Wai 2870) → Crown's answer (kāwanatanga; reasonableness) → powers (Skerrett-White; s 5(2)) → outcome (non-binding except clawback)

Inquiry question – structure

Type (s 6: public/Royal Commission vs government) → terms of reference (s 7) → powers → non-binding report, no liability; promise may create legitimate expectation (Re Finucane)