Rachael Schmidt-McCleave

BARRISTER

President, New Zealand Film & Literature Board of Review
Deputy Chair, Teachers’ Disciplinary Tribunal

Rachael Schmidt-McCleave is an experienced litigator who has worked in New Zealand and the United Kingdom since commencing practice in 1996. Rachael has expertise in public law, education law, professional disciplinary law, medico-legal, privacy, employment and health and safety law. Rachael has regularly appeared in the District Court, High Court and Court of Appeal, as well as in other tribunals such as the Coroner’s Court, the Health Practitioners Disciplinary Tribunal, the Employment Relations Authority, the Employment Court, the Māori Land Court and the Human Rights Review Tribunal, in judicial review proceedings and appeals and other general commercial litigation, health regulatory work and employment litigation.

Rachael has a particular interest in health law and, especially, in the overlap between law and psychiatry. Since commencing at the Bar, she has worked extensively with responsible authorities under the Health Practitioners Competence Assurance Act 2003, as legal advisor to Professional Conduct Committees investigating complaints, and as prosecutor with respect to disciplinary charges. She is also a contract investigator/reviewer/mediator with Fairway Resolution and a contract mediator with Massey University.

Rachael spent almost a decade with the Crown Law Office (2001 – 2010) where, as an Associate Crown Counsel and Crown Counsel in the Public Law Group, she honed her expertise in public and constitutional law, particularly in areas where the activities of Government interact with commerce, and in areas of regulation.  During her time at Crown Law, Rachael was also seconded to the legal teams of Treasury and of the then Securities Commission (now the Financial Markets Authority) and to the Constitutional Group at Crown Law.

Rachael commenced her legal career as a solicitor with Chen Palmer & Partners (1996 – 1997), before moving to Russell McVeagh as a solicitor and senior solicitor in Wellington (1997 – 2000) and onto Freshfields Bruckhaus Deringer as a senior associate in London (2000 – 2001). Rachael spent two and a half years working as a senior associate in the dispute resolutions team at Minter Ellison Rudd Watts in Wellington (2010 – 2014), where she was a key member of the firm’s public law, health law, and health and safety law practices.

In 2017, Rachael was appointed the President of the New Zealand Film and Literature Board of Review, and in 2020 was made a Deputy Chair of the Teachers’ Disciplinary Tribunal. She also sits on two Standards Committees of the Law Society, and chairs a Complaints Assessment Committee of the Real Estate Authority. Rachael sits on the Council of the Arbitrators & Mediators’ Institute of New Zealand (AMINZ).

Qualifications and appointments

LLB (Hons, 1st), BA (English Literature & French), University of Otago, 1995
LLM (Hons, 1st), Victoria University of Wellington, 2003
MA (Creative Writing), Victoria University of Wellington, 2006
Graduate Diploma Business Studies (Dispute Resolution), Massey University, 2015
Admitted as Barrister and Solicitor of the High Court of New Zealand, 1996
President, New Zealand Film and Literature Board of Review, 2017
Deputy Chair, Teachers’ Disciplinary Tribunal, 2020

Publications

Health and Safety Handbook (Thomson Reuters, 2016 and 2018 editions)
Health and Safety at Work in New Zealand: Know the Law, Thomson Reuters (2015 and 2020 editions).
Author of Thomson Reuters online Health and Safety case notes and Accident Compensation case notes
Consulting Editor of Thomson Reuters Case Tracker on Accident Compensation
“Declaratory Relief”, “Costs” and “Limitation of Proceedings” chapters in Brookers Law of Civil Remedies (2nd ed. Thomson Reuters, Wellington, 2011).
“Nervous Shock Damages in New Zealand: The Implications for Health Providers after Palmer” Journal of Law and Medicine, February 2000.
“Wild Law, All Care and Responsibility”, NZ Wilderness Magazine, October 2004.
“The New Zealand Public Health and Disability Amendment Act (No 2) and restricting judicial review” NZ Lawyer, 12 July 2013.
“The Use of Guidelines to aid Departmental and Ministerial decision-making – when does this fetter discretion?” NZ Lawyer, 9 August 2013.
“Alternative Dispute Resolution and the Courts” (2013) New Zealand Law Journal.
“Mediators’ Duty of Care” (2013) New Zealand Law Journal.
Murray & ors v ACC – the inherent tension between the accident compensation legislation and traditional insurance schemes” Law News (ADLS), 28 March 2014

Awards and memberships

Otago Prize in Legal Systems 1991
Otago Family Law Prize 1995
Member, New Zealand Bar Association
Member, Wellington Women Lawyers’ Association
Associate, Arbitrators & Mediators’ Institute of New Zealand

  • Conducting investigations and reviews into various issues including compliance with statutory processes, bullying and harassment issues, and enforcement actions taken (including for Maritime NZ, Environmental Protection Agency, Fire & Emergency NZ, Ministry of Transport, Ministry for Primary Industries, Ministry of Business, Innovation & Employment).
  • Acting for the Crown in the Waitangi Tribunal and in the Royal Commission into Historic Abuse.
  • Investigating, mediating and/or adjudicating on disputes, including for Fairway Resolution Ltd and for Massey University.
  • Advising the Overseas Investment Office on best administrative law practice.
  • Advising various school Boards of Trustees in relation to employment, health and safety and student discipline matters
  • Acting for the Health and Disability Commissioner in prosecutions before the HPDT, and in judicial review proceedings before the High Court
  • Acting for the Ministry of Primary Industries in High Court and Court of Appeal proceedings
  • Acting for the Ministry of Education in employment contract litigation in the Employment Court
  • Acting for the NZ Psychologists Board, the Nursing Council, the Osteopathic Council of NZ and the Podiatrists Board in general advice matters, PCC health practitioner investigations and HPDT prosecutions.
  • Acting for affected persons in Coroner’s Inquests.
  • Acting for Te Ohu Kaimoana Ltd (the Māori Fisheries Trust) in various proceedings under the Māori Fisheries Act 2004 and the Māori Commercial Aquaculture Settlement Act 2004.