In this episode of LEX & LORE, Geoff, Dean, Nessa and Eddie huddle around the fireplace in the Old Government Buildings and in festive fashion, contemplate their seasonal wish lists for legislative reform.

Dean shares his thoughts on the possibilities of clarifying state sector legislation and democratic infrastructure, while Nessa discusses the potential to reform pertinent areas of youth justice. Eddie focuses on the shortfalls within human rights provisions that need to be addressed, while Geoff provides insight into the possibility of criminal and international law reform.

About the Guests

Dr Eddie Clark, Lecturer, Victoria University of Wellington

Areas of interest include Judicial review, administrative law, courts and democracy/public accountability.

Dr Dean Knight, Associate Professor, Victoria University of Wellington

Specialises in Constitutional law, administrative law, judicial review and local government

Dr Nessa Lynch, Associate Professor, Victoria University of Wellington

Specialises in criminal law, New Zealand Law Reports, discretion, youth justice and police action.

Welsh police acquire digital images of Mr Bridges face while he is in Cardiff central city, and later at a protest. Facial recognition software extracts Mr Bridges' facial biometric information in real time and compares it with the information of persons on specific watchlists. Is this type of activity moving into a "search" by the state, even though the expectation of privacy in a public space is low? How would this play out in New Zealand?

A pair of international speakers with racially offensive views have their speaking event at a public venue cancelled...were they discriminated against on the basis of "political opinion"?

The government directs New Zealanders to stay at home during lockdown using language that sits somewhere between the truly voluntary and the directly coercive...regardless of the efficacy in response to a global pandemic, how are we to understand the lawfulness of the government's directions in the first 9 days of lockdown?

About the Guests

Dr Nessa Lynch, Associate Professor, Victoria University of Wellington

Specialises in criminal law, New Zealand Law Reports, discretion, youth justice and police action.

Dr Eddie Clark, Lecturer, Victoria University of Wellington

Areas of interest include Judicial review, administrative law, courts and democracy/public accountability.

Dr Dean Knight, Associate Professor, Victoria University of Wellington

Specialises in Constitutional law, administrative law, judicial review and local government

Cases Discussed:

R (on the application of Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058

Lexis Advance® link: https://advance.lexis.com/document/index?crid=bde935bc-6c5d-4f4b-ba03-1ac8d47f8469&pdpermalink=f99c97a5-be4e-4b97-a173-faa5b98def6d&pdmfid=1230042&pdisurlapi=true

Moncrief-Spittle v Regional Facilities Auckland Ltd [2019] 3 NZLR 433; [2019] NZHC 2399

Lexis Advance®link: https://advance.lexis.com/document/onecase?crid=1e6c75ff-4de5-434a-ab8c-84dff6885d9a&pdpermalink=4f3b16a9-45f3-44fa-8580-ba19e96b6fd8&pdmfid=1230042&pdisurlapi=true

Borrowdale v Director-General of Health [2020] NZHC 2090

Lexis Advance® link: https://advance.lexis.com/api/permalink/fd93e40a-033b-4a3b-9d3b-07d0ab568f3c/?context=1230042

How do constitutional conventions play into the Government’s announcement that the 2020 election is delayed due to the resurgence of COVID-19 in New Zealand? Geoff, Dean, Nessa and Eddie gather in an urgent fashion to discuss the drums beats of a constitutional crisis…or lack thereof.

Also in this episode, the panel dives deeper into how the Government is approaching lockdown post-Borrowdale, as it grapples with how to best encourage continued compliance with public health measures. Is this best achieved via signalling and advice, or rules and compulsion?

How do different professional cultures think of and respond to executive powers during a crisis? While public officials work out how to best exercise their powers for good to help communities respond to the crisis, lawyers ask, in the event that exercising those powers is not good or indeed unhelpful, how exercising those powers can be restricted. It is in this somewhat paradoxical post-Borrowdale landscape that the panel share their insights on these issues and more.

About the Guests

Dr Nessa Lynch, Associate Professor, Victoria University of Wellington

Specialises in criminal law, New Zealand Law Reports, discretion, youth justice and police action.

Dr Eddie Clark, Lecturer, Victoria University of Wellington

Areas of interest include Judicial review, administrative law, courts and democracy/public accountability.

Dr Dean Knight, Associate Professor, Victoria University of Wellington

Specialises in Constitutional law, administrative law, judicial review and local government

Cases Discussed:

Executive power

Borrowdale v Director-General of Health [2020] NZHC 1379

Further Reading:

Claudia Geiringer, No, National, the caretaker convention doesn’t apply now – and nor should it

Dean Knight and Nessa Lynch, Special Topic: Covid-19 and the Law

During a national emergency arising out of a global pandemic that many countries are still struggling to contain, the government provided advice on voluntary compliance measures to isolate the threat by restricting contact between everyone but those we lived with, on a nationwide scale. The voluntary compliance approach was predicated on government press conference messaging to co-opt the goodwill of a “team of five million”, with the lens of the law focused on a network of regulatory tools. How should the legally-minded think about the flexible but necessarily murky approach taken by the executive in light of its failure to fit with traditional rule of law standards; standards of certainty, and clarity?

In this episode, Geoff discusses the public law implications of the upcoming High Court decision in Borrowdale v Director-General of Health with Dr Dean Knight. Central to this conversation is how we think about law itself – if we think of law as obligatory command and consequence, then we might consider the way government managed lockdown as insufficient. We all experienced lockdown compliance in different ways. What price would we pay for certainty and clarity were the executive enabled to exercise wide and enforceable powers during a national emergency?

About the Guests

Dr Dean Knight, Associate Professor, Victoria University of Wellington

Specialises in Constitutional law, administrative law, judicial review and local government

Cases Discussed:

Executive power

Borrowdale v Director-General of Health [2020] NZHC 1379

Fitzgerald v Muldoon [1976] 2 NZLR 615

Further Reading:

Andrew Geddis and Claudia Geiringer: Is New Zealand’s COVID-19 lockdown lawful?

Dean Knight and Geoff McLay: Is New Zealand's Covid-19 lockdown lawful?- an alternative view

General legal commentary on the law and COVID-19 can be found HERE

From whose perspective should the risk of an unforeseen medical consequence be considered for the purposes of ACC compensation? Should unforeseen consequences be approached holistically by the courts, or broken up into a series of events? How do courts distinguish between injury and illness? Geoff and Dr Eddie Clark discuss the critical cases that provide an insight into these divisions in our healthcare system.

As the courts deal with a judicial backlog in the midst of a pandemic, Eddie shares his thoughts on the review of COVID-19 lockdown breach prosecutions. Are these prosecutions necessary as a deterrent, regardless of the judicial backlog in civil and criminal matters?

At the heart of this episode is Dr Nessa Lynch’s discussion on how presumptive sentencing has been applied under the three-strikes law and the potential for injustice to arise as a result. An inherent tension exists between mandatory sentencing and judicial discretion – manifest injustice ought to be a safety valve which can be applied by the courts, but how does this play out across the nuanced historical, cultural and personal circumstances of individuals who are sentenced on their third strike?

About the Guests

Dr Nessa Lynch, Associate Professor, Victoria University of Wellington

Specialises in criminal law, New Zealand Law Reports, discretion, youth justice and police action.

Dr Eddie Clark, Lecturer, Victoria University of Wellington

Areas of interest include Judicial review, administrative law, courts and democracy/public accountability.

Cases Discussed

ACC compensation:

W v ACC  [2018] NZHC 937,  [2018] 3 NZLR 859

ACC v Ng [2018] NZHC 2848

Three-strikes sentencing:

Fitzgerald v R [2020] NZCA 292

R v Allen [2020] NZHC 1796

Individual accountability in sentencing:

Zhang v R  [2019] NZCA 507, [2019] 3 NZLR 648

Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37

Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241