ABSTRACT
New Zealand law distinguishes public from private law obligations, recognising the ‘special area’ where the boundary is difficult to define. In the last two decades New Zealand courts have been increasingly drawn into that area, the contraction of government in an era of corporatisation and privatisation making challenges to the decisions of non-governmental bodies more likely than in earlier times.2 The courts have asked whether such a body bears some extra legal burden on account of its being ‘public’,3 performing functions that are ‘public’,4 being affected by a ‘public interest’,5 or doing things that have ‘public consequences’.6 The result of bearing that burden may vary according to the nature of the case, but, in the main, it is that the party’s impugned action is amenable to some degree of judicial review. The party will need to have acted ‘reasonably and in good faith and upon lawful and relevant grounds of public interest’.7 The enactment of the New Zealand Bill of Rights Act 1990, which applies to government and to bodies that perform ‘public functions’, provided a further reason for exploration of that
special area: Bill of Rights constraints provide further, and substantive, grounds for administrative challenges.8
