'Equity allows courts to shift the focus from technical correctness to the process by which conclusions are reached.'
PSGRNZ question to ChatGPT. The Role of Equity in Administrative and Constitutional Law in New Zealand & how democracies might navigate scientific & technical controversies. April 2025
PSGR: This question to ChatGPT concerns the role of equity and public law conventions in ensuring that scientific and technical claims (which are used to underpin policies and laws) conform to democratic norms. I.e. that claims around the safety of a technology can be rigorously defended because the underlying ‘evidence’ is made using processes (conventions) that are transparent and accountable – fair and just. There is an opportunity to highlight that public inquiries and the courts have an important role in practicably evaluating whether such claims are supported by data and evidence that has been derived through the use of trustworthy processes (including regulatory conventions) that accord with good democratic practice.
Members of public inquiries and the courts might ask: Has the data and evidence (the justification for the policy or the law), been derived using rigorous, transparent, methods-based scientific processes? How is the relevant consideration of risk and uncertainty addressed, for example, the impact on children or human rights? Is the information independent, or produced, reviewed by and approved of, by individuals and organisations with political or financial conflicts of interest? Are there appropriate forums for experts to contradict, challenge and update government claims over time as the information changes?
There is little publicly accessible information discussing the issues addressed below. There are few documents discussing the role of equity and public law conventions for the general public, and legal texts are prohibitively expensive (for example see publications by Philip Joseph ($267) and Andrew Butler ($237)).
Please email info@PSGR.org.nz if you have expertise in constitutional and administrative (public) law, and you can add to this discussion. This includes to criticise, to provide further context or suggest other improvements. PDF available here:
Chat GPT: The Role of Equity in Administrative and Constitutional Law in New Zealand & how democracies might navigate scientific & technical controversies.
Introduction
In New Zealand, public law—comprising administrative and constitutional law—governs the relationship between the state and its citizens. A vital but often understated influence on this relationship is the body of equitable principles that shape the actions of public officials, the rights of individuals, and the integrity of legal processes. While equity traditionally developed within private law to ensure justice and fairness where rigid application of common law failed, its import into public law has become increasingly salient. This essay examines the role of equity in New Zealand's public law, particularly focusing on: (a) the role of transparent and accountable conventions and processes in policymaking and legislation; (b) methods by which government officials can undermine these public law conventions and processes; and (c) the difficulty judges face when conventions are sidelined, transparency is lost, and the limits of judicial review are tested, especially in situations where administrative government relies on scientific and technical claims.
Part I: Equity and the Foundations of New Zealand Public Law
Equity in public law does not manifest identically to its private law counterpart. Instead of formal trusts or fiduciary obligations, public law uses equitable reasoning to reinforce accountability, prevent abuse of power, and ensure that discretionary decisions align with principles of fairness and good faith. The courts have occasionally drawn on equitable doctrines such as legitimate expectation, estoppel, and fiduciary-like responsibilities to hold public bodies accountable (see Attorney-General v Ngati Apa [2003] 3 NZLR 643).
New Zealand’s legal system, grounded in the Westminster constitutional model, also relies heavily on constitutional conventions. These are unwritten rules that guide governmental conduct, ensuring the separation of powers, responsible government, and democratic legitimacy. These conventions operate alongside legal rules, often filling gaps where written law is silent or ambiguous. Equitable reasoning supports the moral force of conventions, especially in the absence of enforceable statutes (see Joseph, Philip A., Constitutional and Administrative Law in New Zealand, 5th ed, Thomson Reuters, 2021).
Part II: Transparent and Accountable Conventions in Policy and Lawmaking
1. Constitutional Conventions and Their Equity-Inspired Role
Constitutional conventions in New Zealand govern processes such as the formation of government, ministerial responsibility, and the conduct of the Governor-General. While not legally enforceable, these conventions derive their authority from their consistency with democratic principles, including transparency, fairness, and accountability—principles shared with equity.
The Cabinet Manual (2023) is New Zealand’s authoritative guide to constitutional conventions. Its emphasis on accountability and transparency mirrors equitable concerns for honesty and good conscience. For instance, the principle of collective responsibility ensures that ministers publicly support Cabinet decisions, reinforcing government coherence and predictability. Equity's concern for good faith supports this principle, expecting public officials to act in ways that uphold public trust.
2. Equitable Principles in Administrative Law
In administrative law, equitable ideas have influenced doctrines that control the exercise of public power. Notably:
Legitimate Expectation: Rooted in equity and estoppel, this doctrine allows individuals to rely on consistent government conduct or promises. Where a public authority departs from established procedures or representations, the courts may intervene, particularly if the change affects fundamental rights or expectations (see Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308).
Procedural Fairness: A cornerstone of administrative justice, procedural fairness echoes equity’s concern for conscience. Courts require decision-makers to provide notice, an opportunity to be heard, and impartial adjudication (Daganayasi v Minister of Immigration [1980] 2 NZLR 130).
Unconscionable Conduct: Though rarely used as a standalone basis in public law, the idea that public bodies should not act oppressively or exploitatively draws upon equitable values (see Bulk Gas Users Group v Attorney-General [1983] NZLR 129).
3. Transparency and Consultation in Policy Development
Transparency and meaningful public consultation are critical to equitable governance. The New Zealand Bill of Rights Act 1990 (NZBORA) and Official Information Act 1982 (OIA) support these ideals, reflecting equity’s emphasis on openness and accountability. When public bodies consult, they must do so genuinely—evidence of tokenism or predetermined outcomes can breach equitable expectations of fair dealing (Air Nelson Ltd v Minister of Transport [2008] NZCA 26).
Part III: Methods by Which Officials Undermine Public Law Conventions and Processes
Despite established conventions and legal safeguards, government officials can erode public law processes through subtle or overt means. Equity's role in public law is to resist these tendencies and protect individuals and institutions from arbitrary or deceptive conduct.
1. Avoidance and Ambiguity
Public officials may sidestep transparency obligations by exploiting procedural ambiguities. This includes:
Drafting legislation with vague terms to avoid accountability.
Using secondary legislation or executive orders to implement major policy shifts without parliamentary scrutiny.
Withholding information under broad or poorly justified exceptions in the OIA (see Kelsey v Minister of Trade [2015] NZHC 2497).
Such tactics subvert equitable values by undermining legitimate expectations of openness and consultation.
2. Politicisation of Public Service
A public service that becomes an arm of political will, rather than an impartial body, threatens constitutional balance. Appointments based on loyalty rather than merit dilute public trust and reduce transparency.
Equity would view such conduct as a breach of fiduciary-like responsibility. Officials, particularly those in powerful executive roles, owe a duty to act in the public interest. The erosion of impartiality contradicts equity’s demand for conscientious exercise of power.
3. Disregard for Ministerial Accountability
Ministers who withhold or misrepresent information to Parliament challenge the convention of responsible government. When Cabinet decisions are shielded from scrutiny or ministers refuse to accept responsibility for departmental failings, the spirit of equity—grounded in honesty and openness—is violated (see Burt v Governor-General [1992] 3 NZLR 672).
Part IV: Judicial Challenges in the Face of Scientific and Technical Claims
1. Scientific and Technical Governance and the Problem of Black-Box Technologies
Modern governance increasingly relies on scientific data and technical systems—ranging from public health technologies to environmental monitoring and digital infrastructure. Government assurances of safety or efficacy are often backed by expert reports, risk assessments, or technical models. However, these claims may lack transparency, particularly when:
Data is supplied by private industry, often under commercial-in-confidence agreements.
Methodological processes are unclear or not subject to independent scrutiny.
Technologies themselves (e.g., digital tools, surveillance systems) operate as black boxes, whose algorithms and inner workings are inaccessible to the public or even to decision-makers.
2. The Limitations of Judicial Review and Non-Justiciability
Judicial review is constrained by doctrines of justiciability and separation of powers. Courts typically refrain from questioning scientific judgments unless a clear legal error or process flaw exists. This is particularly problematic when government relies on:
Opaque or misleading expert evidence, where underlying data is withheld.
Commercial confidentiality to shield potentially flawed or biased technical assessments.
Scientific claims as definitive, despite contested evidence or lack of peer review.
Judges may find these matters non-justiciable, claiming they fall within executive discretion or policy. This deference can leave affected individuals without remedy, especially in cases involving health risks, environmental exposure, or inequitable access to technology (see Ngāti Whātua Ōrākei Trust v Attorney-General [2021] NZSC 111).
3. Navigating Equity in Scientific Controversies
Despite these barriers, courts can—and arguably should—invoke equity to demand transparency and fairness in scientific governance. This includes:
Insisting on procedural integrity: Requiring that decision-makers disclose the basis for technical claims, subject to cross-examination and independent evaluation.
Recognising legitimate expectations: Where public consultation promised full disclosure or participatory engagement, failure to uphold these standards may breach procedural fairness.
Protecting against abuse of discretion: If a decision is based on partial or biased information, or ignores contrary evidence without explanation, the decision may be ultra vires.
Equity allows courts to shift the focus from technical correctness to the process by which conclusions are reached. The judiciary need not second-guess scientific findings, but can scrutinise whether the process by which they were adopted was open, balanced, and fair.
Part V: The Role of Disclosure and Democratic Accountability
At the heart of equity’s role in public law is the principle that justice requires access to relevant information. Courts should be wary of government decisions made behind closed doors or based on secretive data arrangements. Equity demands that individuals affected by administrative decisions have the opportunity to know and challenge the evidence used against them.
This is particularly relevant in contexts such as:
Public health mandates based on contested pharmaceutical data.
Environmental approvals for technologies with uncertain or long-term risks.
Algorithmic decision-making in social services or immigration, where affected persons have no insight into how determinations were made.
Disclosure, in such contexts, is not a technicality—it is a condition of justice.
Conclusion: Courts, Equity, and Democratic Legitimacy
Equity plays a critical role in New Zealand’s administrative and constitutional law by reinforcing the moral foundations of governance. It demands fairness, transparency, and accountability in the exercise of public power. When governments rely on scientific and technical claims, equity insists not on scientific perfection but on openness and integrity in the decision-making process.
Courts have the tools to navigate these issues—not by deciding scientific questions, but by ensuring that the processes used to resolve them meet equitable standards. Legitimate expectations, procedural fairness, and the requirement to act in good faith are not minor technicalities—they are essential to democracy.
Ultimately, equity reminds us that the rule of law is not just about rules; it is about trust, conscience, and justice. As science and technology become more complex and more entwined with governance, courts will need to adapt—asserting their role not as arbiters of science, but as guardians of process. To do so, they will require public support, robust legal principles, and a commitment to the ideals that have long underpinned both equity and democratic government.
In a functioning democracy, no power—no matter how expert or technical—should be beyond scrutiny. Courts, guided by equity, are essential to ensuring that even in the age of algorithms and black-box governance, justice remains both visible and real.
References
Air Nelson Ltd v Minister of Transport [2008] NZCA 26 (Court of Appeal of New Zealand).
Attorney-General v Ngati Apa [2003] 3 NZLR 643 (Court of Appeal of New Zealand).
Burt v Governor-General [1992] 3 NZLR 672 (High Court of New Zealand).
Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (High Court of New Zealand).
Cabinet Office. (2023). Cabinet Manual 2023. Department of the Prime Minister and Cabinet. https://dpmc.govt.nz/publications/cabinet-manual-2023
Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (Court of Appeal of New Zealand).
Joseph, P. A. (2021). Constitutional and Administrative Law in New Zealand (5th ed.). Thomson Reuters.
Kelsey v Minister of Trade [2015] NZHC 2497 (High Court of New Zealand).
Ngāti Whātua Ōrākei Trust v Attorney-General [2021] NZSC 111 (Supreme Court of New Zealand).
New Zealand Bill of Rights Act 1990. Public Act 1990 No 109. http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html
Official Information Act 1982. Public Act 1982 No 156. http://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.html
