Thread by @drdeanknight

I managed to dip into the (virtual) hearing of this appeal in the Supremes yesterday. A couple of trainspotter tid-bits.

Moncrief-Spittle v Regional Facilities Auckland Ltd

courtsofnz.govt.nz/assets/cases/C…

There is still a dispute about whether the Council’s CCTO was performing a “public function” under s3(b) such that the Bill of Rights Act applies. In the Supremes, there was a lot of argument about how the Ransfield test/indicia apply in this context.

FWIW, I think Ransfield is methodologically dangerous. It approaches the question of public function as if there is some intrinsic truth about what functions are intrinsically public or governmental.

The changing nature of the state and what it does over time or in different jurisdictions belies that. As Cane rightly argues, it’s not a quality like “redness” that can be observed.

In other words, the better way to look at public function is as a normative — not descriptive — test. Should accountability for this function follow in public law or not?

I don’t have the Cane passage to link to but I nod to the nature of the test in this article (“Privately Public”) and in a NZLS CLE seminar paper (with Cassie) on judicial review that preceded it.

papers.ssrn.com/sol3/papers.cf…

And the Ransfield indicia are often misused — as some form a summative criteria. Just like one of the counsel did in the hearing. “We got 8 of the 10 indicia so we must qualify.” 🤦🏼

Regardless of whether a normative or descriptive test, the indicia are at best a shopping list of things to think about. But the key consideration must return to the idea of publicness (as woolly as that concept is).

And I hate that observation in Ransfield that the public function test under the Bill of Rights Act might be different to the publicness test for common law judicial review.

Sure. I get that as a matter of theory and metaphysics. But, realistically, there no difference. It’s fanciful to think a case where there’s a material difference will turn up. Just close the door! They’re the same! 🙄

The other issue that brought out the 🍿 was the approach to section 5/justified limits on supervisory review when dealing with a primary decision-maker discharging administrative functions. Miss Behavin’, Dore and all that.

As I heard it, M-S’s beef was largely procedural (eg didn’t consider crucial matters etc). But there was also a substantive argument that the cancellation was not a justified limit prescribed by law.

M-S’s counsel was arguing, I think, that the Court should form its own view on whether the proportionality calculus was met, esp whether the decision limited the right no more than (reasonably) necessary when set against alternatives.

Enter Glazebrook J. “So what do you say is the applicable standard of review for s 5? Correctness?” and ~“I don’t like term (etc) but does deference apply?” Cough.

To be clear, Glazebrook J was exactly on point. These are the key questions. The difficulty is that our Supremes often get so wound up in their objection to the language and/or method (“unhelpful” concept / “ugly” lexicon) that it’s a shock to hear it uttered.

The further difficulty was that counsel for M-S on this point was Prof Joseph, who has very strong views about (viz against) deference etc. There was some reluctance on his part to accept that he was arguing for a “correctness” standard — even though that was clearly his case.

I know I’ve written a book on this — and one that looks at different ways we might think about and talk about these methodological issues. But, SERIOUSLY, we need to get past the language!

How does the court’s supervisory eye change in different contexts? Clearly it does.

there’s *

And, here, it seems plain that justified limits bite differently, when a discretionary admin/contractual power — and the ct’s ex post facto appraisal needs to reflect that, inevitably more deferentially than the strict appln of proportionality seen eg in legislative context.

Finally, big snaps to the Supremes for a pretty slick live stream of the hearing (I promise not to tease about the jazzy muzak that played during breaks…). We lost Glazebrook J a few times as she was Zooming in from home it seems. But otherwise steps fwd on access to justice.

PS I didn’t post these reckons yesterday because of a quirk, I think, in the remote viewing protocol: “You must not publish any report of the hearing while it is in progress.”

Due to other work, I was dipping in-and-out of the hearing, as I often do in-person. When I do that in-person, I often tweet a reckon in an adjournment or after I’ve stepped out for good.

But, on a strict reading of the virtual viewing protocol, I shouldn’t until the end of the hearing — even if I’m no longer remote viewing. A bit odd and awkward. 🤷

PPS Forgot to say:
It’s a damn town hall — what more publicness do you need?!? 🥸

the term *