Maybe there’s no pressure, but stand by for more laws being amended under urgency – to make legal what the Government has done illegally.
The rest of us don’t have that privilege but it’s something governments can do. And it’s something the Luxon government has done already this year.
Will it happen again to remedy more recent transgressions?
An agency which plays a key role in the law-and-order caper in this country was found to have broken the law. Not once, but many times.
In the other case, the Minister of Justice – no less – was judged to have acted illegally.
In the first case, the High Court said Corrections has repeatedly breached the law by denying prisoners at Auckland Prison their right to physical exercise in the open air because of a lack of appropriate staffing and facilities.
The High Court ruled that inadequate staffing was not a lawful basis for denying someone their legal rights and it was incumbent on the court to step in and ensure those deprived of liberty were able to access the bare minimum owed to them under domestic and international law.
PoO’s attention was drawn to the ruling by a Newsroom report which said:
In a rare move, the court issued a ‘mandamus order’, telling the Corrections chief executive – Jeremy Lightfoot – to comply with the law. If he failed to do so, he would be the first public service boss to be subject to contempt of court proceedings – a charge that brought with it a possible fine or imprisonment.
Hmm. What a hoot if he finished up in Auckland Prison where he found there were too few staff and he could not exercise his right to physical exercise in the open air.
“Ultimately, I am persuaded that there needs to be a way of holding the chief executive accountable to the provision of minimum exercise entitlements at Auckland Prison that does not take several years and a lengthy trial to enforce,” Justice Jason McHerron said in his decision released on Tuesday.
“Neither would a declaration [of inconsistency with the Bill of Rights] suffice, given the chief executive’s ongoing noncompliance despite Ombudsman recommendations and court decisions.”
Paul Goldsmith landed himself on the wrong side of the law by being a tad cavalier in dishing out jobs.
The High Court has ruled he unlawfully appointed Human Rights Commissioner Stephen Rainbow and Race Relations Commissioner Melissa Derby.
According to the NZ Herald, Goldsmith says he’s taking advice on the judgment and considering “next steps”, including a possible appeal.
Human rights advocate Paul Thistoll had challenged the minister’s decision to appoint Rainbow and Derby.
Two of his four key arguments were upheld – that the minister failed to apply the correct legal test, and he failed to take into account mandatory considerations.
Contentions that the minister breached a “legitimate expectation” and “made an unreasonable decision” were not upheld.
Readers were reminded that the appointment of Rainbow in August 2024 had prompted concern from some quarters – including Labour and the Greens – given his staunch pro-Israel views and previous comments about “a trans agenda”.
Derby had come in for some criticism for sharing a tweet in 2023 that said the “trans movement” could not be tolerated in civil society.
Neither commissioner will be removed from their jobs as a result of the ruling.
A press statement from Rights Aotearoa elaborated:
The High Court in Thistoll v Minister of Justice [2025] NZHC 4067, which declares that the Minister of Justice acted unlawfully in his decision-making process regarding recent appointments to the Human Rights Commission.
And:
In the other case, the Minister of Justice – no less – was judged to have acted illegally.
In the first case, the High Court said Corrections has repeatedly breached the law by denying prisoners at Auckland Prison their right to physical exercise in the open air because of a lack of appropriate staffing and facilities.
The High Court ruled that inadequate staffing was not a lawful basis for denying someone their legal rights and it was incumbent on the court to step in and ensure those deprived of liberty were able to access the bare minimum owed to them under domestic and international law.
PoO’s attention was drawn to the ruling by a Newsroom report which said:
In a rare move, the court issued a ‘mandamus order’, telling the Corrections chief executive – Jeremy Lightfoot – to comply with the law. If he failed to do so, he would be the first public service boss to be subject to contempt of court proceedings – a charge that brought with it a possible fine or imprisonment.
Hmm. What a hoot if he finished up in Auckland Prison where he found there were too few staff and he could not exercise his right to physical exercise in the open air.
“Ultimately, I am persuaded that there needs to be a way of holding the chief executive accountable to the provision of minimum exercise entitlements at Auckland Prison that does not take several years and a lengthy trial to enforce,” Justice Jason McHerron said in his decision released on Tuesday.
“Neither would a declaration [of inconsistency with the Bill of Rights] suffice, given the chief executive’s ongoing noncompliance despite Ombudsman recommendations and court decisions.”
Paul Goldsmith landed himself on the wrong side of the law by being a tad cavalier in dishing out jobs.
The High Court has ruled he unlawfully appointed Human Rights Commissioner Stephen Rainbow and Race Relations Commissioner Melissa Derby.
According to the NZ Herald, Goldsmith says he’s taking advice on the judgment and considering “next steps”, including a possible appeal.
Human rights advocate Paul Thistoll had challenged the minister’s decision to appoint Rainbow and Derby.
Two of his four key arguments were upheld – that the minister failed to apply the correct legal test, and he failed to take into account mandatory considerations.
Contentions that the minister breached a “legitimate expectation” and “made an unreasonable decision” were not upheld.
Readers were reminded that the appointment of Rainbow in August 2024 had prompted concern from some quarters – including Labour and the Greens – given his staunch pro-Israel views and previous comments about “a trans agenda”.
Derby had come in for some criticism for sharing a tweet in 2023 that said the “trans movement” could not be tolerated in civil society.
Neither commissioner will be removed from their jobs as a result of the ruling.
A press statement from Rights Aotearoa elaborated:
The High Court in Thistoll v Minister of Justice [2025] NZHC 4067, which declares that the Minister of Justice acted unlawfully in his decision-making process regarding recent appointments to the Human Rights Commission.
And:
In a significant decision for public accountability, Justice Gendall granted a formal declaration that the Minister’s decision was unlawful on two grounds:
1. Application of the Incorrect Legal Test: The Court found the Minister failed to apply the strict legal tests required by the Crown Entities Act 2004 and the Human Rights Act 1993.
2. Failure to Consider Mandatory Considerations: The Court ruled that the Minister failed to take into account mandatory relevant considerations regarding the specific functions and skills required for these critical roles.
Paul Thistoll is the head of Rights Aotearoa, a Wellington-based non-governmental organisation devoted to the promotion and defence of universal human rights for all New Zealanders.
He says the Human Rights Commission exists to protect the rights of all New Zealanders, and:
“It is vital that those appointed to lead it are selected through a lawful, robust process that respects the statutory criteria set by Parliament.”
Thistoll noted
- The judgment revealed that the independent assessment panel had rated the Minister’s preferred candidate for Chief Commissioner as “Not Recommended” and was “unable to recommend” the candidate for Race Relations Commissioner due to a lack of depth and experience. Despite this, the Minister proceeded with the recommendations without adequately documenting that the statutory pre-requisites were met.
- While the Court did not set aside the appointments, the declaration of unlawfulness serves a vital constitutional function. As Justice Gendall stated, there is a “clear and substantial public interest” in having these errors publicly declared to ensure that “future recommendations for the position of human rights commissioners proceed lawfully”.
Anyway, these things can easily be put to rights if need be.
Remember the High Court decision in the case of the Environmental Law Initiative v The Director-General of the Department of Conservation (DOC) and others?
That case challenged DOC’s decision to grant Waka Kotahi permission to kill wildlife during the construction of the Mt Messenger Bypass in Taranaki.
The Judge ruled that the permit was unlawful, reportedly ending years of DOC’s practice of granting permits which authorised the killing of wildlife under the Wildlife Act.
Oh dear. Naughty officials.
But this is a government hellbent on paving the way for growth, no matter the existential threat to wildlife.
And – shazam – before the greenies could crack open a bottle of dandelion wine to celebrate, the Government had sorted things out.
An amendment to the Wildlife Act was passed under urgency in May to allow the Director-General of Conservation to grant companies permission to bump off kiwi and other native wildlife if they get in the way of projects like roads, mines or dams. Or progress.
All three stages of the Bill were heard under urgency in a legislative process that could be described as Trumpian, except he simply signs an executive order to give effect to whatever he wants. Our government must muster a majority of votes in Parliament.
Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE. - where this article was sourced.
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