Judicial Review Procedure Act 2016 – review of regulations reducing maximum nicotine strength for vaping products – natural justice – procedural fairness – legitimate expectations – duty of consultation – presumption of regularity – public policy considerations – preservation of executive autonomy – ultra vires 

ALT New Zealand Ltd v Attorney-General [2023] NZHC 3855 per Churchman J.

The applicants (ALT, VEC and Myriad) are three companies that manufacture and sell vaping products in New Zealand. They sought interim orders against regulations reducing nicotine strength in vaping products.

On 11 August 2021, the regulations under the Smokefree Environments and Regulated Products Act 1990 came into effect, with clause 15 stating: “The strength of nicotine salt in a vaping substance must not exceed 50 mg/ml”. Subsequently, the Ministry of Health sought an amendment to the regulations that would lower the maximum strength of nicotine salt to 28.5 mg/ml.

The applicants sought judicial review of the proposed regulation, along with an interim order under s 15(3)(b)(i) of the Judicial Review Procedure Act 2016 preventing the enforcement of these regulations until the substantive application for judicial review was determined.

Ellis J issued a declaration clarifying the interpretation of regulations about nicotine strength in vaping substances to be 50 mg/ml. However, subsequent ministry amendments prompted further proceedings.

The focus of the proceedings then changed to the substantive action for judicial review of the amended regulation. Evidence was presented, focusing on the lawfulness of the amendment process.

The applicants advanced four causes of action. First, there was a duty to consult. Second, there was a breach of natural justice by failing to undertake a lawful consultation process. Third, the decision to amend clause 15 failed to take into account relevant considerations. Fourth, that the making of the regulation was ultra vires.

Churchman J rejected the claims of a legitimate expectation to be consulted, asserting that such an expectation must be clear and well-established, which was not the case here. Overall, the consultation process was deemed adequate and consistent with legal requirements.

Churchman J said the third cause of action stemmed from a contention that the advice given to the Executive Council was insufficient. However, he ultimately held the executive, in receiving appendices of results of the consultation process, was given sufficient information.

On the issue of ultra vires, the challenge suggested the amendment was irrational and beyond the empowering clause’s scope. The respondent contended the regulations aligned with the Act’s purpose to minimise harm, especially to youth, and were based on a reasonable balancing of health interests. The decision-making process, though debatable, wasn’t irrational. Ultimately, Churchman J upheld the amendment’s validity, affirming it was within the scope of the empowering provision and not ultra vires.

Applicable principles: judicial review – whether enforceable duty to consult in respect of regulations – whether legitimate expectation for applicants to be consulted – whether failure to take into account relevant considerations – whether making of regulation within scope of empowering provision – whether decision ultra vires.

Held: The applicants failed on all causes of action and the proceedings were dismissed.

Jamie Dierick is a law clerk working for an Auckland criminal defence barrister.

ALT New Zealand Ltd v Attorney-General [2023] NZHC 3855.