Max Harris
Max Harris is a barrister and door tenant at Thorndon Chambers, having recently returned to legal work following a number of years in policy, campaigns, academia, and writing. Since returning to legal practice, Max has appeared as counsel (and made oral submissions) in the Supreme Court, Court of Appeal, High Court, District Court, and Coroners Court. He has also presented briefs of evidence in the Waitangi Tribunal.
Max has experience in academia and public writing. He was an Examination Fellow in Law at All Souls College at the University of Oxford, where he completed a DPhil in constitutional law on the prerogative and third source. He completed BCL (with Distinction) and Master of Public Policy degrees at the University of Oxford as a New Zealand Rhodes Scholar. While at the University of Oxford he tutored philosophy of human rights, taught law for public policy, and participated in (and developed) an education programme at Grendon Prison.
He previously graduated from the University of Auckland with a BA/LLB(Hons.) degree. At the University of Auckland he was Senior Scholar in Law and Political Studies, and Editor-in-Chief of the Auckland University Law Review. His academic work has been published in, among other places, the European Human Rights Law Review, the Journal of Contract Law, and the New Zealand Universities Law Review. He is co-editor of two books on the legal contributions of Dame Sian Elias and Bruce Harris, and author of the book The New Zealand Project. He tutored tort law at Victoria University of Wellington while clerk to Chief Justice Elias at the Supreme Court.
Max has worked as a campaigner and policy researcher, and has a longstanding interest in and commitment to progressive politics. He continues to work part-time for ActionStation (in particular, on a project called Dental for All) though the majority of his time is now dedicated to work as a barrister. He has authored policy reports on housing policy and a Ministry of Green Works, worked as an economic policy advisor to Shadow Chancellor John McDonnell in the UK Parliament, and was a consultant to the United Nations Development Programme in New York.
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Max has a broad practice, with particular experience in public law matters and criminal appeals.
Supreme Court –
Appearing in two related appeals in 2024 for which the Court has granted leave, concerning damages under the New Zealand Bill of Rights Act, whether the Court should overturn Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462, and the circumstances under which the Court will overturn its past decisions: SC 31/2024 Putua v Attorney-General and SC 107/2024 Fitzgerald v Attorney-General.
Successful criminal appeal in 2024 (details suppressed). Contributed to written submissions and made oral submissions to the Court in this case.
Attorney-General v Chisnall [2024] NZSC 178. Appeal allowed in a case about the consistency of Extended Supervision Order (ESO) and Public Protection Order (PPO) regimes with the New Zealand Bill of Rights Act 1990 (“Bill of Rights”). Contributed to written submissions, including on the approach to facial and as-applied Bill of Rights challenges, the meaning of penalty under s 26(2) of the Bill of Rights, and the approach to be taken to s 5 of the Bill of Rights.
Court of Appeal –
CA404/203 Commonwealth of Australia v (name suppressed). Appeal taken by Crown of High Court decision not to extradite. Represented respondent, issues raised including the approach to be taken to the best interests of the child in extradition cases. Contributed to written submissions and made oral submissions to the Court (legal aid). Court has reserved its decision.
CA391/2023 New Zealand Independent Community Pharmacy Group v RX8 & Others. Appeal relating to judicial review of decision by District Health Boards (as they were then constituted) to grant contracts to Countdown Pharmacy, including the principles governing judicial review of public sector contracting decisions. Contributed to submissions and made oral submissions to the Court. Court has reserved its decision.
CA108/2023 Hoban v Attorney-General. Appeal relating to whether gap in hate speech law for protection against hate speech on the ground of sexual orientation represents an unjustified limit on the right to be free from discrimination. Contributed to submissions and made oral submissions to the Court (pro bono). Court has reserved its decision.
Ngāti Paoa Trust Board v Auckland Council & Ors [2024] NZCA 481. Appeal relating to, among other things, how local authorities should recognise iwi representatives under the Resource Management Act 1991 and Local Government Act 2002. Contributed specialist advice to the appellant legal team. Appeal allowed in part.
Demant v King [2023] NZCA 366. Appeal on whether an appeal against decision of the High Court declining application for EM bail (pending an adjourned sentencing) should be treated as a bail appeal, and whether the High Court correctly approached adjournment of sentencing, including in light of the Bill of Rights. Contributed to submissions in this case (legal aid). Appeal dismissed.
Greenpeace Aotearoa v Hiringa Energy Ltd and Ballance Agri-Nutrients Ltd & Ors [2023] NZCA 672. Appeal from High Court decision on whether an expert consenting panel correctly applied principles, including those relating to Te Tiriti o Waitangi and its principles, under the COVID-19 Recovery (Fast-track Consenting) Act 2020. Part of team representing interested parties (‘Ngā Hapū’, pro bono). Appeal dismissed.
Hanara v King [2022] NZCA 608. Appeal on correct approach to fitness and jury directions, in a case with evidence of foetal alcohol spectrum disorder (FASD). Provided research used in submissions on approach to fitness in light of the New Zealand Bill of Rights Act 1990. Appeal allowed.
High Court
New Zealand College of Midwives Inc & Ors v Attorney-General CIV-2022-485-558. Provided specialist advice, among other things, on discrimination law and damages under the New Zealand Bill of Rights Act 1990 for the purpose of written submissions. Case heard in 2024; decision is reserved.
New Zealand Independent Community Pharmacy Group v Te Whatu Ora – Health New Zealand & Ors [2023] NZHC 1486. Challenge to how regulation of community pharmacy services is administered by various public health bodies. Contributed to written submissions and made oral submissions to the Court. Challenge was successful in part.
District Court
King v Denton-Tipoki [2024] NZDC 27920. Case concerning orders under the Criminal Procedure (Mentally Impaired Persons) Act 2023 and its interface with the New Zealand Bill of Rights Act 1990. Contributed to written submissions and made oral submissions to the Court (legal aid). District Court found in favour of Crown; now under appeal.
Coroners Court
Scope decision in inquiry into the death of Ahamed Aathil Mohamed Samsudeen (1 May 2024), arising following a New Lynn Countdown attack. Part of team representing Mr Samsudeen’s family. Contributed to written submissions and led oral submissions. Most sub-issues found to be within scope; inquest to be held in 2025.
Scope decision in inquiries into the deaths of 51 people in relation to the 15 March 2019 Christchurch Masjidain Attack (28 April 2022). Part of team representing Islamic Women’s Council of New Zealand. Contributed to written submissions and made oral submissions on the relevance of digital platforms to the causes and circumstances of deaths. Most sub-issues raised were found (at least potentially) to be within the scope of the inquiry.
Waitangi Tribunal
Provided an expert brief of evidence to the Waitangi Tribunal inquiry into the Treaty Principles Bill and Treaty clause review, resulting in the Ngā Mātāpono report. One of three experts called back by the Tribunal to give further evidence about the Crown’s further actions in relation to the Treaty Principles Bill, resulting in a further chapter being added to the Ngā Mātāpono report.
Other opinion / advisory work
Max has provided a range of other opinion / advisory work, including under tight time constraints. Some of this work cannot be specified in detail to maintain confidentiality, but has included:
Specialist advice on law and public policy matters relating to Te Tiriti o Waitangi and environmental law.
Advice on possible claims relevant to Te Tiriti o Waitangi and natural resources.
Advice on police misconduct resulting in a breach of human rights.
Advice for a European Court of Human Rights challenge on the interface between criminal law and human rights law.
Advice on a possible breach of a prisoner’s human rights.
Advice on judicial review of an inquiry.
Advice on the COVID-19 Recovery (Fast-track Consenting) Act 2020.
Advice on coronial inquiries.
Advice on employer misconduct in the adult entertainment industry.
An opinion (produced with two other lawyers) calling for the Inspector-General of Intelligence and Security to conduct an own-motion inquiry into possible New Zealand engagement with actions contributing to Israel’s activities in the Gaza Strip in 2023-2024.
Max is approved as a supervised criminal and civil legal aid provider.
Max has experienced considering how legal tools (including letters) and non-legal tools (including press releases and engagement with politicians) can be used to advance the interests of clients, especially clients challenging government or corporate decisions who have limited financial means and access to power. He also recognises – and takes into account in his advice – that (kāwanatanga) law may simply be one instrument or tool for those seeking systemic change and social, economic, and/or constitutional transformation.
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Books
(ed, with Sam Bookman, Edward Willis, and Hanna Wilberg) Pragmatism, Principle, and Power in Common Law Constitutional Systems: Essays in Honour of Bruce Harris (Intersentia, 2022)
(ed, with Simon Mount QC) The Promise of Law: Essays marking the retirement of Dame Sian Elias as Chief Justice of New Zealand (LexisNexis, 2019)
The New Zealand Project (Bridget Williams Books, 2017)
Articles (sample, full publication list available on request)
‘Showcase – New Directions in Administrative Law Theory: The Prerogative, The Third Source, and Administrative Law Theory’, Int’l J Const Law Blog, 13 September 2019, at http://www.iconnectblog.com/2019/09/showcase-new-directions-in-administrative-law-theory-the-prerogative-the-third-source-and-administrative-law-theory/
‘Is New Zealand Law Ready for a Marbury v Madison Moment?’ (2012) 25 New Zealand Universities Law Review 210
‘Fairness and Remoteness of Damage in Contract Law: A Lexical Ordering Approach’ (2011) 28 Journal of Contract Law 122
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DPhil (Oxford), supervised by Professor Paul Craig
BCL (Distinction), MPP (Oxford)
BA/LLB(Hons.) (Auckland)
