Public law, broadly speaking

The public law landscape has been broad and varied over the last month or so; a reflection on the diversity of the people and organisations who seek to check the exercise of public power. At one end of the spectrum, Miller J, in Tiroa E and Te Hape B Trusts v Chief Executive of Land Information (HC Wellington CIV-2012-485-101) (the Crafar Farms case) displayed the extent to which a reviewing court may enhance an already detailed statutory scheme when he found that, in considering whether under the relevant part of the Overseas Investment Act 2005 an overseas investment would benefit New Zealand, it is the counterfactual (what would happen without the overseas investment), rather than the status quo, which must be balanced against the intended investment.

At the other end of the spectrum, Mallon J in Easton v Governor-General (HC Wellington CIV-2011-485-1753 and 1840) was required to consider a rejection of an application for the exercise of the prerogative of mercy following a refusal to attend an anti-violence programme ordered by the Family Court, finding that the prerogative did not in fact need to be exercised by the Queen herself.

At something of a midpoint on the spectrum, Kós J recently provided valuable guidance on the nature of “personal information” under the Privacy Act in an appeal from a decision of the Human Rights Review Tribunal. While noting the apparent difference in approach between the Court of Appeal and the Tribunal as between a qualified and broad approach (the Court of Appeal, obiter, having signalled a preference for the former), the Court found that a health practitioner’s list of clients, released in the context of disciplinary proceedings, was not personal information about the practitioner.

Internationally, the breadth of public law litigation is reflected in the fact that, out of the 59 judgments handed down in the United Kingdom Supreme Court in the 2010-11 legal year, 23 concerned issues of public law (see C Knight and T Cross “Public Law in the Supreme Court 2010-2011” [2011] JR 348). Keep an eye on this column for an analysis of the more important, or interesting, of them.

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