Got Milk: Outdated legislation and the fight for legality

Words by Bridget Scott (she/her)

Wellington City Council has a milk problem. 

The Wellington Milk Supply Act 1919 states that only suppliers issued with a licence from the WCC are permitted to sell, deliver, or possess milk within the region. Yet the licence hasn’t been issued in decades and the white liquid gold continues to flow freely through the capital—meaning suppliers are technically operating illegally. The right to supply milk, one of dozens of pieces of legislation that are practically redundant, unenforced, yet still on the books, has become a fight to balance proper legislating processes and the challenges of local government bureaucracy.

This is where Tyrone Baughn steps in. 

A lawyer by trade, Baughn found the Milk Act in March 2021 whilst attempting to read all of Aotearoa’s legislation and sought to apply for the licence. While WCC declined to comment, emails reveal that Baughn experienced no formal application process. They responded to emails with confusion and eventually declined Braughn a licence, arguing that the law was too old to be actioned. 

Indeed, the Act has been relegated to the history books. An info pamphlet from the early 1920s published by the council notes that the Milk Supply Act protected their monopolistic position and “led to the purchase of the council’s first dairy factory at Rahui on the outskirts of Otaki and soon the WCC became the sole supplier and distributor of milk to homes and schools across the city.”

Time, however, plays almost no role in determining the legal legitimacy of laws. In fact, as the latest generation of Laws 121 freshers are about to joyfully discover, older legislation dictates the fundamental principles of our legal and political system. The Magna Carta (1297), The Bill of Rights (1688), and The Judicature Act (1908) are all part of our laws today and continue to be enforced. Even the 1640 writ of habeas corpus, which prevents the unjustified imprisonment of citizens, has featured in our courts as recently as 2020, following a dismissed court case against Jacinda Ardern and Ashley Bloomfield that claimed Level 4 lockdowns were equivalent to detention.

Make no mistake, if granted the licence, Baughn intends to sell milk. After purchasing it outside of the WCC’s jurisdiction and transporting it into the city, he’ll eventually stock a novelty pop-up shop selling Wellington’s only legal milk. But without it, the law places Baughn in danger of committing an offence and being fined.

This isn’t an issue restricted to milk supplies. Subway footlong sandwiches might be iconic, but according to section 11 of the Weights and Measures Act 1987, they’re also illegal. 

Designed to force Aotearoa’s retailers to shift to the metric system of measurement, anyone using a unit of measure other than the metric system in advertising commits an offence—somehow a 30.48cm sub doesn’t hold quite the same appeal. These might seem trivial, but other outdated laws hold the potential to be legitimately and seriously harmful. The Māori Community Development Act 1962 plays host to a whole range of racist criminal offences that apply only to Māori. Under s 30 of this legislation, Māori who disturb congregations, public meetings, or audiences are automatically deemed to have committed an offence. Alternatively, s 33(2) states that any person managing a “gathering of Māori” that is “held in a meeting place” and “supplies intoxicating liquor” commits an offence.

Even if these laws haven’t been enforced in recent times, as long as they remain on the statute books, there’s a possibility that they could be! The week three SparkNotes of Laws 121 points to the Rule of Law principle, the idea that law should be accessible, not discriminate, and safeguard against abuse.

All citizens have the right to know which actions are legally permitted and which aren’t. There is a legitimate argument that the Milk Supply Act may have been overruled by more recent legislation, but when outdated acts remain unrepealed, the public relies on ambiguous discretion exercised by politicians, judges, and police. Notably, public expectation about the conduct by individuals occupying these positions varies across partisan, geographic, and class lines and changes every election. Today’s norms of behaviour cannot be guaranteed in the future.

For Braughn, this has only furthered his frustration: “Wellington City Council doesn’t have a strong culture of respecting the law or respecting good public law decision making principles.” 

Since the rejection of his licence application, he has filed and withdrawn an appeal of the Council’s decision with the High Court. Now, in an effort to preserve taxpayer funds by preventing unnecessary courtroom appearances, he has sought to compromise—lobbying for the repeal of section 6 and 7 of the Wellington Milk Supply Act 1919. The last clarifying and repealing of outdated laws occurred in 2017 with the Statutes Repeal Bill that cut 132 acts out of the books. Today, ridding Wellington of the Act will require a bill from the Department of Internal Affairs sponsored by Local Government Minister Hon. Nanaia Mahuta. This has been described by Minister Mahuta as “not a priority while the department is progressing an ambitious package of reforms across the sector.”

Braughn is continuing the fight on his own terms. He will present a petition to the council at an upcoming meeting calling for “Council to demonstrate good regulatory stewardship and promote a local bill for its repeal” and hopefully improving the equitability and accessibility of legislation nationwide.

Until then, take pride in knowing that even illegal milk can create a tiny rebellion in the most unlikely of places.