Challenging government reversals: Smokefree legislation, Te Tiriti rights and urgency

As I write this at the end of January 2024, a claim has just been lodged with the Waitangi Tribunal for an urgent hearing into the Government’s decision to repeal aspects of the Smokefree legislation in its 100-day plan.

The tribunal claim is one more move by public health and Māori health advocates to highlight the lack of evidence and the ongoing harms this will have, particularly for Māori.

Taking an urgency claim to the tribunal is about making a case that one claim (or set of claims) needs to be given priority over the tribunal’s other business and be heard as soon as possible.

According to the Guide to Practice and Procedure of the Waitangi Tribunal, ¹ the tribunal only grants such hearings in “exceptional” circumstances. The kinds of things it might consider include whether:

• claimants can show significant and irreversible prejudice because of current or pending Crown actions or policies
• there are no alternative remedies (that is, other legal options) for the claimants
• claimants are ready to go forward with their claims without any further research.

The tribunal may also consider the importance of the content of the claim and whether there are other ways the issue could be resolved (for example, by mediation).

This new claim concerning the Smokefree Environments legislation is not the first urgent claim to be lodged to the Waitangi Tribunal following the Coalition Government’s formation and the release of its 100-day plan. It’s not even the second. In December, Lady Tureiti Moxon and Janice Kuka filed a claim for urgency around the Government’s plan to introduce legislation to disestablish Te Aka Whai Ora. A few days later, Ngāi Te Rangi Settlements Trust filed an urgent claim with the tribunal based on what it sees as a breach of Article 2 of Te Tiriti o Waitangi by failing to protect te reo Māori and pushing to introduce a Treaty Principles Bill.

Based on this level of legal action, the Government’s path to pass significant change quickly will not be smooth.

We didn’t see this debated much (if at all) before the election

Clearly, many groups are looking at how they can demonstrate their concern and how they might influence change in a way that addresses the unjust and unfair differences in health and other outcomes between Māori and Pākehā that we have seen for generations.

Without looking specifically at the Smokefree claim to the Waitangi Tribunal, as the tribunal is still actively considering it, the claim’s very existence is a reminder of how jarring the Coalition Government’s decision to “repeal amendments to the Smokefree Environments and Regulated Products Act 1990” is, given that we have a reputation of having one of the most comprehensive and rigorous approaches to tobacco harms in the world.

The legislation in question, which was passed in 2022, extended regulatory powers over the composition of smoked tobacco products, such as nicotine levels, and tightened restrictions around vaping.

Experts in Aotearoa have written that “the new Government’s decision to rescind these measures will result in more cancer, more heart attacks and stroke, more incurable lung disease and more cot deaths than would otherwise occur. It will create and increase health inequities because smoking and smoking-related disease place a disproportionate burden on Māori and Pacific peoples”.²

This approach to tobacco legislation is jarring partly because it flies in the face of evidence. But it is also jarring because it wasn’t National Party or ACT Party policy. While New Zealand First said it would repeal and replace the 2022 “Smoked Tobacco” amendment and 2023 regulations that were, in its words, “put in place by Labour to achieve an illusory Smokefree 2025”,³ we didn’t see this debated much (if at all) before the election, so it is hard to see this as something the electorate wanted. In fact, public health colleagues point out that the vast majority of those who smoke regret starting and want to quit, and most people who smoke support the measure of de-nicotinising tobacco, so these become non-addictive and easier to quit.⁴

Nevertheless, the repeal of Smokefree Act provisions became part of the NZ First and National Party Coalition Agreement and the 100-day plan. The details of the legislation are still unknown, perhaps not surprising given that we are only slightly over halfway through the 100-day schedule. But the Coalition agreements make it clear that the Government will include removing requirements for de-nicotinisation, removing the reduction in retail outlets, and reforming the regulation of vaping, smokeless tobacco and oral nicotine products.⁵

It is too early to know how the tribunal will approach the urgency claim on proposed Smokefree legislation, given the claim has only just been filed. It may take a similar approach to its decision on the urgency claim around disestablishing Te Aka Whai Ora. In that case, the tribunal granted urgency and said there was likely prejudice to Māori with the Government policy to close Te Aka Whai Ora (especially without any plan as to what will replace it). However, before further steps are taken in the tribunal inquiry, the Government needs to come back with more details on how the changes will look.

And the same is true here. If urgency is granted, and even if it isn’t, the Government will need to outline what exactly it plans to do with the Smokefree legislation and – critically – how it will work to ensure it will improve health outcomes equitably and in line with its Te Tiriti o Waitangi obligations.

Whatever shape those plans take, one thing is clear from the urgency application: Māori health and public health experts are available to offer informed opinion and advice should the Government be open to robust challenges. Hopefully, the urgency application can be seen as an opportunity for ministers and officials to access expert input that strengthens the legislation, rather than treat it as an adversarial litigation issue.

Gabrielle Baker (Ngāpuhi, Ngāti Kuri) is an independent health policy consultant