Okay. To return to the substance of this report, a few hot reckons — based on some thoughts provided as comment following a brief read. 🧵

As I said earlier, this is an ugly solution in search of a problem — a non-existent or massively overstated problem. The criticisms of the Supreme Court are misplaced. There is nothing constitutionally exceptional in the ways they go about interpreting statute law or shepherding the common law.

If Whaitiri's letter to the Speaker meets the section 55B requirements, it’s all over and there’s no going back. Her seat automatically becomes vacant once that letter is received by the Speaker. That is:
- written notice
- signed by the MP
- addressed to the Speaker
- states she has resigned from the parliamentary Labour party (and/or now wishes to be reconsider as a member of Te Pāti Māori).

👇🏼 commonslibrary.parliament.uk/changes-to-the… Also:
ucl.ac.uk/constitution-u…

Sigh. #fastestlawmakerinthewest

https://twitter.com/nzparliament/status/1640627766335815680

An irony, too, that this emergency Henry VIII framework legislation drops the very week we are studying the virtues and vices of secondary legislation and the Regs Review committee’s scrutiny work. #LAWS321

Seriously? A framework for emergency Orders-in-Council — overriding primary legislation — for large areas of the country for the next 5 years.

Catching up on constitutional developments while I’ve been deep in the marking cave.

And this one is a doozy — and perhaps concerning?

An SOP entrenching a point of policy (ownership/control of water assets) was agreed, ie 60% majority needed to repeal.
legislation.govt.nz/sop/members/20… I make no comment on the underlying policy. However, constitutionally, this is unusual and doesn’t sit well with our current constitutional traditions. Manner-and-form entrenchment has, to date, been restricted to key electoral provisions and those with widespread public support.

Folk proclaiming that the sky is falling because of the Supremes’ declaration of inconsistency on the voting age might want to breathe and have a closer look at what went on first. The outcome owes much to a tactical decision by the Attorney/Crown Law that backfired.

They put all their eggs in one basket — arguing the answer to exclusion of 16 and 17yos lay in the Bill of Rights protection of 18yos+ and entrenchment of 18yo+ voting made it hard to change.

I know my view on this may ruffle some feathers amongst officers and lawyers. But it follows simply from the role of elected members as governors and their corresponding accountability to the public. 🧵 /1

https://twitter.com/dompost/status/1524435975388073987

Councillors, as elected members and members of the governing body, have a general right to receive any information held by the local authority, subject to very narrow limits. They are accountable at large and at the ballot box for the organisation and its operations. /2

Hmmm. I’ve just discovered that the release of the 12 Nov 2021 MoH internal memo was accompanied by the 22 Nov 2021 briefing from Bloomfield to Hipkins, ie more extensive advice following external peer review, Crown Law Office advice, etc.

health.govt.nz/system/files/d… The briefing is 9pp long plus executive summary. The summary is below.

For those interested in the implications of MoH’s advice re a revised risk assessment for MIQ/returnees in Nov 2021, it’s worth reading the memo in full.

Quick reckons. This is an important but pretty narrow ruling because (a) it related to the special threshold for vax mandates applicable to the Police and Defence Force (ie "continuity of service" etc); and /1

rnz.co.nz/news/national/… (b) because of some messiness, the govt didn't marshal the evidence the judge expected to demonstrably prove that threshold was met - esp given the indirect limitation on folks' rights. /2

A fun and rich day at the NZ Centre for Public Law at @VicUniWgtn, with our regular (but today virtual) Govt Law - Year in Review symposium. Over 250 folk joining to chew the fat about developments over past year (incl goings-on around our own places as we speak!) #NZCPLgovtlaw Our day kicks off with a superb keynote from Prof Claudia Geiringer (@GeiringerC): "Reimagining the NZ Bill of Rights Act: an internalised constraint on administrative power" - a taster from her forthcoming book.
#NZCPLgovtlaw

I think Lady Chambers is quite mistaken about the (so-called diluted) role the Bill of Rights Act has played in the pandemic (on @CheckpointRNZ and @nzherald). Rather than the government being blasé about human rights and there being an absence of debate etc, the justification calculus has been at the forefront of government decision-making - as section 5 of the Bill of Rights Act demands.

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.

Grounded Kiwis judicial review challenge to New Zealand's managed isolation and quarantine regime -- arguing that it unjustifiably breaches the right to return in s18(2) of the Bill of Rights Act -- is being heard by the High Court today. I have been granted permission to trainspot and tweet (subject to a 10min delay on reports and reckons). 🤓

COVID-19 Response (Vaccinations) Legislation Bill now available.

legislation.govt.nz/bill/governmen… To be clear, it is a constitutional disgrace that the legislation mandating this vaccination regime is being passed urgently this week, without provision for prior/adequate consultation on the legislative framework.

I’m in the virtual gallery today, watching this judicial review challenge to the vaccination order for border workers.

Please note the applicant’s identity is suppressed (but not details of their former occupation and employer).

#bordervax I'm also subject to the media's 10min delay rule -- which is not unexpected but challenging for an academic with a memory like a goldfish... 🐠

@SpeakerTrevor Thanks. It will be interesting to see how this plays out. A few top-of-mind/random thoughts, on what seem to be proposals in tandem. @SpeakerTrevor My instinct is to think about efficacy and design in functional terms, ie do/will these institutions deliver the type and style of accountability etc expected, regardless of name and form?

Borrowdale v Director-General of Health in the Court of Appeal (day two).

#BorrowdaleRound2 Apologies to my fellow trainspotters but core uni duties (our first LAWS213 classes on admin law and judicial review) trump spectating today — so I’m dipping in-and-out of the hearing

#BorrowdaleRound2

Borrowdale v Director-General of Health in the Court of Appeal (Day 1).

#BorrowdaleRound2 Judges have arrived. Farmer QC et al for Borrowdale; Solicitor-General et al for govt (good to see SG appearing herself); NZLS intervening. Gallery full — except the broken seat (my favourite at the back right).

#BorrowdaleRound2

The legal challenge to New Zealand’s C19 lockdown in Mar/Apr 2020 continues in Court of Appeal today, after Borrowdale challenges two grounds he lost before High Court (scope of health orders; essential businesses list). Snippets below explain background.
#BorrowdaleRound2 Snippets are from a note of mine:
“Stamping out Covid-19 in New Zealand: legal pragmatism and democratic legitimacy” [2021] Public Law 241.