HISTORICAL TRENDS AND KEY PRINCIPLES IN JUDICIAL REVIEW

Introduction

Judicial
review is the body of law relating to the review of the justiciable
acts, decisions, determinations, orders and omissions of individuals
and bodies performing public functions. Judicial review of the
decision-making activities of these bodies is generally perceived as an
important constitutional procedure to prevent those exercising public
functions from abusing their powers. 

Self-restraint
The
development of judicial review has been marked by the reluctance of the
courts to extend the scope of judicial review beyond matters of
compliance with statutory requirements as to form and procedure. This
judicial self-restraint is founded on the reluctance of the courts to
encroach on the exercise of supremacy of Parliament, or to unduly
restrict the acts of the Executive for which that branch of government
is responsible on a political level to Parliament.[2]

No substantive review of legislation in NZ
In
this Country, once legislation has been assented to and becomes law,
there is no limit to its legal efficacy, and the courts in New Zealand
do not allow judicial review to infringe this doctrine[3]. In this
regard the position in New Zealand is now more or less unique: in the
USA, judicial review of the constitutionality of legislation has been
permitted since the early 1800s[4]; the courts of both Canada and
Australia have similar powers[5]. Even in the UK, the home of
parliamentary supremacy, judicial review of legislation is now
permissible as part of the United Kingdom’s obligations under
European Community Law and, in particular, the European Convention on
Human Rights. The courts in the United Kingdom will, in cases of
legislative ambiguity, defer to an interpretation that is consistent
with the Convention,[6] and may grant urgent interlocutory relief in
cases where rights are claimed under European Community Law, which
challenge domestic United Kingdom law.[7]

Overview of the development of judicial review
Nevertheless,
the classic theory of judicial review is that it is an important
restraint on the exercise of public power. By this theory, judicial
review imposes upon all decision-makers standards that are inherent in
a democracy and embraced by the rule of law. The role of the courts to
uphold the rule of law and restrain the exercise of power has long been
articulated: see the landmark decision in Entick v Carrington.[8] The
King’s Bench established in that case that any exercise of power must
be founded in law, and it is for the courts to determine the legal
limits attendant to the exercise of that power.

Modern judicial
review is generally regarded as a reaction to the growth of the size
and power of the Executive from about the late 1800s, and more
particularly as a result of the economic measures taken from the late
1920s to assist the British economy to recover from the effects of the
Great Depression. But its roots may be traced further back. In Allnut v
Inglis,[9] the King’s Bench, concerned with the exercise of
monopolistic powers of a dock company, adopted a passage from Lord
Hale’s Treatise de Portibus Maris[10] stating that wharfage and
cranage duties must be reasonable because of the public interest in
such amenities.[11]
In New Zealand, all the inherent powers
exercised by the English Courts of Queen’s Bench, Common Pleas,
Exchequer and Chancery were vested in the Supreme Court (after 1981,
the High Court of New Zealand) when that Court was established in
1840.[12] Official action grew in New Zealand from, for the most part
in 1840, enforcing criminal law and regulating the relationship between
settlers and Maori, until it gradually came to regulate and control
most areas of human activity.[13]

The primary purpose of judicial review was summarised by Lord Lindley M.R. in Roberts v Gwyrfai District Council:[14]
“I
know of no duty of the Court which it is more important to observe, and
no power of the Court which it is more important to enforce, than its
power of keeping public bodies within their rights. The moment public
bodies exceed their rights they do so to the injury and oppression of
private individuals, and those persons are entitled to be protected
from injury arising from such operations of public bodies.�
In
the 1800s and early 1900s the courts operated on the presumption that
all official action was valid and regular unless there was proof to the
contrary.[15] In the United Kingdom especially this translated into an
unwillingness to interfere with the actions (in particular) of local
authorities “on the ground of supposed unreasonableness�,[16] or
uncertainty[17] or ultra vires.[18] However, according to Paterson,[19]
at least by 1967 the courts in New Zealand had declined to adopt such a
broadly benevolent attitude to local authorities, confining the
operation of the presumption to cases of contended unreasonableness.[20]
Up
until at least the late 1960s, the courts confined themselves primarily
to considerations of the authorisation of actions by officials, which
is still commonly referred to now as the doctrine of ultra vires. Thus,
actions by New Zealand’s Governor,[21] Governor General,[22] and
Ministers of the Crown[23] have been subject to attempted review on the
basis that they lacked authority either under prerogative powers of the
Crown or an Act of Parliament, since the very early days of the colony.

The
principal difficulty in determining whether a decision-maker has acted
illegally occurs in those circumstances where the decision-maker has
been granted a broad decision-making discretion. However, the courts’
jurisdiction is not ousted merely because the statute confers upon a
decision-maker a discretionary power. As Lord Upjohn said in Padfield v
Minister of Agriculture Fisheries and Food:[24]

"[T]he use of
that adjective [unfettered discretion], even in an Act of Parliament,
can do nothing to unfetter the control which the judiciary have over
the executive, namely, that in exercising their powers the latter must
act lawfully and that is a matter to be determined by looking at the
Act and its scope and object in conferring a discretion upon the
[decision-maker] rather than by the use of adjectives."?

The
courts maintain, as mentioned above, a reluctance to interfere in the
exercise of a discretion that has been granted to a decision-maker.
However, as recognised in Roberts v Hopwood,[25] the courts maintain
their right as the ultimate arbiter of what is lawful.

By the
1970s, the courts in England had moved from the attitude expressed less
than a decade earlier that they did not adjudicate over “a developed
system of administrative law�,[26] to Lord Denning’s proclamation
in 1971 that “it may truly now be said that we have a developed
system of administrative law�.[27] Similar sentiments were
articulated by Lord Devlin, who praised the progress of the courts
towards a comprehensive system of administrative law as “having been
the greatest achievement of the English Courts in my judicial
lifetime�.[28]

In New Zealand, the Judicature Amendment Act
1972 (as amended in 1977) provided the opportunity for development of
judicial review independently from the authorities handed down by
English courts, and in 1985 Cooke J opined that “the time has
probably come to emphasise that New Zealand administrative law is
significantly indigenous�.[29]
The exercise by the courts of
the judicial review power is not uncontroversial. It has been argued,
especially by the Critical Legal Scholarship movement in the 1970s and
80s, that (in particular) substantive judicial review runs contrary to
the rule of law.

The rule of law, it is argued, insists on a
strict separation between law on one hand, and politics on the other.
“Law�, in this sense, consists of those substantive and procedural
rules that govern the determination and application of law. The content
of these rules must be fully determined prior to their application,
otherwise they would be exercised arbitrarily (and thus) in violation
of the norms of justice. “Politics�, in contrast, is the means by
which laws are enacted and represent the democratically determined
political will of society. Thus, the rule of law demands judicial
fidelity to both pre-existing law and the authority of Parliament to
determine what the law shall be. On this view, to the extent that a
court acts in severe departure from pre-existing law or usurps the
mandate of Parliament to enact law, not only may such a decision be
wrong as a matter of law, but also itself be a violation of the rule of
law.[30]

However, this paper does not in general critique the
procedure, or the substantive law that has grown up around it. Instead,
it seeks to describe the manner in which the power is exercised by the
courts in this Country, and the practical considerations of this
exercise for decision-makers.

Scope of Review
Public
bodies may exceed their rights in a number of ways. Acting in excess of
jurisdiction does not necessarily connote any implication of bad faith
on behalf of the decision-maker. Rather, it may simply be the case, for
example, that the decision-maker has misunderstood the legal position.
Indeed, as the law has become more complex and executive agencies have
become fundamental to the effective operation of central government,
the importance and number of judicial review decisions have increased
markedly.[31]

Traditionally, a decision will be amenable to
review where the power exercised is derived from statute, statutory
instrument or the exercise of the prerogative, and the subject matter
of the power is justiciable. This scope of review has gradually
expanded and is now more completely reflected in the statement of Lord
Diplock in C.C.S.U. v Minister for the Civil Service,[32] where His
Lordship stated that a decision will be susceptible to judicial review
where a decision-maker is empowered by public law to make decisions
that, if validly made, will lead to administrative action or abstention
from action by an authority endowed by law with executive powers.[33]
The
broad scope of judicial review therefore now includes inter alia
decisions by Ministers of the Crown,[34] government departments,[35]
local authorities,[36] incorporated and unincorporated bodies
exercising public functions,[37] non-statutory regulatory bodies[38]
and commissions of inquiry.[39] The touchstone for review appears to be
whether the exercise of power by the decision-maker is in substance
public or has important public consequences.[40]

Justiciability
Not
all decisions are open to review by the courts. Some, with a high level
of policy content, are deemed to be beyond the competence of the
intervention of judges and therefore “not amenable to the judicial
process�.[41] Such decisions, identified by De Smith, Woolf and
Jowell:[42]
“include those [decisions] that necessitate the
evaluation of social and economic policy,[43] or the allocation of
scarce resources among competing claims.[44] Courts are institutionally
unsuited to resolving these kinds of problem, which are best left to be
decided in the political arena.�
The judicial recognition that
some decisions are necessarily non-justiciable is a significant
departure from the stricter approach formerly adopted by the courts,
where the courts would in principle refrain from reviewing any “non-
judicial� decision. As De Smith, Woolf and Jowell recognise:[45]
“…the
courts have rejected the old distinction between “judicial� and
“administrative� decisions (the latter being held not amenable to
review). It can now be said that “it is not the label of
‘administration’ or ‘management’ that determines the existence
of jurisdiction but the quality and attributes of the decision.�
Recently, in Curtis v Ministry of Defence,[46] Tipping J said on the issue of justiciability:[47]
“A
non-justiciable issue is one in respect of which there is no
satisfactory legal yardstick by which the issue can be resolved. That
situation will often arise in cases into which it is also
constitutionally inappropriate for the Courts to embark.�
On
the merits of judicial review of the decision to disband the Air Combat
Force of the Royal New Zealand Air Force, His Honour went on to say:[48]
“The
only issue is whether his decision has left the RNZAF insufficiently
armed. But that is par excellence a non-justiciable question. It is a
question which is not susceptible of determination by any legal
yardstick. Furthermore it is one of Government policy into which it is
constitutionally improper for the Courts to go.�
Classification Of Grounds Of Review
There
are now generally recognised to be three principal grounds of judicial
review, specifically “procedural impropriety�, “irrationality�,
and “illegality�. Lord Diplock identified these principal grounds
of review in Council of Civil Service Unions and others v Minister for
the Civil Services.[49]
The grounds of review are not discrete
and there may be overlap between them. Moreover, as a general principle
of law, these “grounds� are not considered exhaustive.[50] They
merely impose labels upon the broad framework of judicial review of the
justiciable exercise of public power by a decision-maker. They reflect
the variety of principles which govern the law of judicial review,
which is summarised by Sir Robin Cooke’s now well-known statement
that “[t]he decision maker must act in accordance with law, fairly
and reasonably�.[51]
Illegality
If a decision-maker
contravenes or exceeds the terms of the power which authorises the
making of the decision, or pursues an objective other than that for
which the decision-making power was conferred, then the decision is
likely to be tainted by illegality. The courts will review a decision
which is tainted in this way to ensure that the exercise of power by
the decision-maker is in accordance with what Parliament intended.
Lord
Diplock defined the ground of illegality as encapsulating the
requirement “that the decision-maker must understand correctly the
law that regulates his decision making power and give effect to
it�.[52] This involves identifying the parameters set by the
empowering statute and having regard to whether the decision maker has:
exercised a power for an improper purpose;
made any mistakes of law;
made any mistakes of fact;
applied the law inconsistently.[53]
If
a power has been granted to a decision-maker for one purpose and is
exercised for another different purpose, then that power has not been
properly exercised, and the exercise is unlawful. Decision-makers
should not pursue “collateral objects�, the decision-maker’s
power should not be “exceeded�, the purposes pursued by the
decision-maker should not be “improper�, “ulterior�, or
“extraneous� to those required by the statute, nor should
“irrelevant considerations� be taken into account in reaching a
decision. All these terms adopted by the courts signify that the
decision-maker cannot lawfully act in pursuit of an improper
purpose.[54]
A decision will not be in accordance with law if
all mandatory relevant considerations have not been taken into account,
or if irrelevant considerations have been allowed to influence the
decision. That is, mandatory considerations of the statute must be
given effect to by the decision-maker.
The mandatory
considerations of the statute may be either expressly or impliedly
specified. Express mandatory considerations are those directly
identified in the empowering statute or regulation. Alternatively,
implied mandatory considerations arise by implication from the
statutory scheme, that is: the subject matter, scope and purpose of the
relevant Act, including its objects and provisions; and/or by the
context of the decision making. For example, the New Zealand Court of
Appeal in Attorney-General v NZ Maori Council[55] held that the
promotion of Maori language and culture was an implied mandatory
relevant consideration in a decision to allocate radio frequencies
under the Radio Communications Act 1984.

Not every potentially
relevant fact or consideration is deemed to be a mandatory
consideration. A consideration does not become mandatory merely because
it may properly be taken into account, even if it is one the Court
itself would have taken into consideration. It must be expressly or
impliedly required by statute as a matter of legal obligation.[56]
Furthermore, the Courts have emphasised that mandatory relevant
considerations must be obvious to the reasonable decision-maker. These
extend to facts “obviously material to the mandatory statutory
considerations as were or ought to have been known� to the
decision-maker.[57]
Once it has been established that irrelevant
factors have influenced the decision, as a general rule, it is not
necessary to prove that they were either the sole or dominant influence
of the decision-maker.[58] It is enough to prove that their influence
was material or substantial. On the other hand, if it is alleged that
relevant considerations have been overlooked by the decision-maker, the
court will normally try and assess the actual or potential importance
of the factor that was overlooked.

The availability of judicial
review for both mistake of fact and failure by the decision-maker to
apply the law consistently will be considered later as developing
trends in judicial review in New Zealand.

Irrationality
This
ground of review differs from both illegality (whether the
decision-maker has acted for a purpose outside that defined by the
governing statute) and procedural propriety (the fairness of the
procedure followed by the decision-maker). Instead, irrationality[59]
triggers review when a bizarre or plainly unintended decision results
from the exercise of a power of decision. Whereas the ground of
illegality is sometimes criticised for being retrospective in exercise
and therefore unhelpful to decision-makers, the irrationality ground is
sometimes seen as an opportunity for capricious interference by the
courts in matters of policy.
The most famous formulation that
seeks to summarise this ground of review is that by Lord Greene in
Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[60]
In that case, His Lordship held that a decision may be set aside if it
is so unreasonable that no reasonable [decision-maker] could ever come
to it.�[61] Unfortunately, the substantive decision in question
demonstrates, at least to a reader 70 years later, the validity of the
criticism of review on this ground.

In New Zealand, the relevant
principles are summarised by the Court of Appeal in Wellington City
Council v Woolworths NZ Ltd (No 2):[62]
“Even though the
decision maker has seemingly considered all relevant factors and closed
its mind to the irrelevant, if the outcome of the exercise of
discretion is irrational or such that no reasonable body of person
could have arrived at the decision, the only proper inference is that
the power itself has been misused.
To prove a case of that kind
requires “something overwhelming� (Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1948] KB 223, 230 per Lord Greene
MR). In Council of Civil Service Unions v Minister for the Civil
Service [1985] AC 374, 410 Lord Diplock said in respect of
unreasonableness, or “irrationality� as he preferred to call it:
“It
applies to a decision which is so outrageous in its defiance of logic
or of accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at it.�

Similarly,
in Nottinghamshire County Council v Secretary of State for the
Environment [1986] AC 240, 247 - 248 Lord Scarman used expressions such
as “so absurd that he must have taken leave of his senses� and “a
pattern of perversity� as setting the standard and in Webster v
Auckland Harbour Board [1987] 2 NZLR 129, 131 Cooke P spoke of an
unreasonable decision as “one outside the limits of reason�.

Accordingly,
the exercise of power may be unreasonable where the decision was taken
in bad faith, is irrational or clearly involves the decision-maker
giving manifestly inappropriate weight to relevant considerations.
Furthermore, if the decision-maker fails to give effect to an
individual’s legitimate expectation or fails to decide matters
between individuals consistently, or ultimately is excessively
oppressive of an individual’s interests, then the courts may hold
that the decision-maker has acted irrationally.[63] As will be seen,
the courts have attempted to diffuse criticism of the use of the power
under this head by specifying that it may only be deployed in extreme
cases.

The continuing tension surrounding irrationality as a
ground of review is aptly illustrated by the decision of the English
Court of Appeal in R v Ministry of Defence, ex parte Smith.[64] In this
case, judicial review was sought challenging the policy of the Ministry
of Defence prohibiting homosexual people from serving in the Armed
Forces. The Court of Appeal concluded that the policy was not
irrational and reaffirmed that the threshold of irrationality is a high
one and that the greater the policy content of a decision, the more
hesitant a court must be in holding a decision to be irrational.[65]
Procedural Impropriety
This
ground of judicial review considers the procedures, and,
consequentially the fairness of those procedures, followed by the
decision-maker in arriving at the decision. De Smith, Woolf and Jowell
state that the importance of procedural propriety is:[66]

“…to
provide the opportunity for individuals to participate in decisions
that affect them. Another is to promote the quality, accuracy and
rationality of the decision-making process. Both concerns aim at
enhancing the legitimacy of that process.�

Decision-makers are
bound to ensure that their procedure of decision-making complies with
the rules of natural justice. It is “a duty lying on every one who
decides anything [to] act in good faith and fairly listen to both
sides�.[67] This duty of fairness was described by Cooke J in
Daganayasi v Minister of Immigration[68] as “legally enforceable
elementary standards� that must be followed by the decision-maker.[69]

The
two most basic and fundamental principles of natural justice are that
the parties be given adequate notice and an opportunity to be
heard,[70] and that the decision-maker be unbiased.[71] In Daganayasi,
Cooke J emphasised that these requirements of natural justice may be
applicable to a statutory power of decision-making in one of two ways:
either through “what is to be inferred or presumed in interpreting the Act�; or
by
“judicial supplementation of the Act when this is necessary to
achieve justice without frustrating the apparent purpose of the
legislation�.
Before the exercise of power will be reviewable,
the statutory scheme as a whole must be examined in order to see to
what degree, if any, the legislation intended the principle of natural
justice or fairness to apply.[72] The modern approach[73] in New
Zealand was summarised in Fowler & Roderique v Attorney
General,[74] where Somers J stated:
“If the exercise of the
power is likely to affect the interests of an individual in a way that
is significantly different from the way in which it is likely to affect
the interests of the public generally, the person exercising the power
will normally be expected to have regard to the interests of the
individual before it is exercised.�
The availability of review
of the exercise of power by a decision-maker for breach of natural
justice was also commented on in Royal Australasian College of Surgeons
v Phipps.[75] The Court of Appeal stated that the courts are willing to
exercise the power, even although there may be no statutory power of
decision or the power may in significant measure be contractual. The
Court held the obligation of natural justice “is an area of broad
principle, not precise rules, turning on the nature of the power being
exercised and all the circumstances.�[76]
An affected party
may have been given a legitimate expectation of consultation either by
a promise or an established practice of consultation by the
decision-maker.[77] The legitimate expectation must have some
reasonable basis,[78] and cannot be founded on, for example, a
misinterpretation of an assurance, undertaking, a course of dealing[79]
or on the mere hope or unsubstantiated belief of the person asserting
it.[80] Once the legitimate expectation has arisen, then the
consultation must be undertaken by the decision-maker to the extent
that the legitimate expectation demands in each case.[81]
The
rule against bias is concerned with the impartiality of the
decision-maker and with maintaining public confidence in the
administration of justice. This is reflected in the often cited maxim:
“[J]ustice should not only be done, but should manifestly and
undoubtedly be seen to be done.�[82]
The test for determining whether bias arises in each particular case has been defined by Joseph as follows:[83]
“There
are two types of bias: “presumptive� and “apparent�.
Presumptive bias arises where a decision-maker has a direct pecuniary
or personal interest in the outcome of the case; apparent bias where
the decision-maker has some personal or professional relationship to a
party or witness, or a prejudice against or preference towards a
particular result, or a predisposition leading to a predetermination of
the issue(s). The dividing line between permissible and impermissible
partiality shifts with the context. The content of the bias rule is
flexible, varying with the factual and legal circumstances of the
case.�
In the case of presumptive bias, a pecuniary financial
interest of the decision-maker will not be improper where the financial
interest of the decision-maker is minor and “could not sensibly exert
improper influence�.[84] Non-pecuniary presumptive bias was normally
evidenced by a relationship of the decision-maker that engendered a
manifest danger of actual bias, however, as Joseph recognises, the
effect of the decision of the House of Lords in Ex p Pinochet (No
2)[85] may be that “any relationship a decision-maker has to a party
to the case may trigger automatic disqualification�.[86]
The
test of whether apparent bias exists was defined by the Court of Appeal
in Auckland Casino Ltd v Casino Control Authority.[87] The Court
rejected any previous distinction between “real likelihood� and
“reasonable suspicion� and stated:[88]
If a reasonable
person knowing all the material facts would not consider that there was
a real danger of bias, it would seem strained to say that nevertheless
he or she would reasonably suspect bias.�
Therefore, if, for
example, a decision-maker has made prior statements that reveal prior
judgment of or hostility to the issue, or favouritism towards any of
the interested parties, then, on the facts in each case, it may be open
to a court to find that the decision should be quashed on the grounds
of bias.[89]
However, not every decision requires an impartial
mind to be brought to bear on it. Sometimes, it will be apparent that
Parliament intends decision-makers to act as representatives of a
particular interest group, as was the case in NZI Financial Corporation
Ltd v New Zealand Kiwifruit Authority.[90]

KEY THEMES IN JUDICIAL REVIEW IN NEW ZEALAND

Illegality
Review for error of law
As
discussed above, traditionally a decision-maker would only be
reviewable for error of law if he or she incorrectly interpreted the
source of his or her jurisdictional power, or ignored it completely.
However,
the decision in Anisminic v Foreign Compensation Commission[91]
rendered obsolete this restrictive approach towards jurisdictional
error. The Court extended the scope of “jurisdictional error� to
include any material error made in the course of applying a statutory
power.
Anisminic held that privative clauses (clauses that seek
to oust the jurisdiction of the court to review) must be strictly
construed and “if such a provision is reasonably capable of having
two meanings, that meaning should be taken which preserves the ordinary
jurisdiction of the Court.�[92] Lord Wilberforce stated further:[93]
“The
question, what is the [decision-maker’s] proper area, is one which it
has always been permissible to ask and to answer, and it must follow
that examination of its extent is not precluded by a clause conferring
conclusiveness, finality, or unquestionability upon its decisions.�
The
expanding scope of the courts’ jurisdiction and the
“elasticity�[94] of the modern approach as to error of law was
acknowledged in New Zealand in Bulk Gas Users Group v A-G.[95] Cooke J
summarised the developing approach:[96]
“It is further clear
that the Courts of general jurisdiction will be slow to conclude that
power to decide a question of law conclusively has been conferred on a
statutory authority or tribunal… . In Re Racal Communications Ltd
[1981] AC 374, 382-383, Lord Diplock put it that there is a
"presumption that where Parliament confers on an administrative
tribunal or authority, as distinct from a court of law, power to decide
particular questions defined by the Act conferring the power,
Parliament intends to confine that power to answering the question as
it has been so defined: and if there has been any doubt as to what that
question is, this is a matter for courts of law to resolve in
fulfilment of their constitutional role as interpreters of the written
law and expounders of the common law and rules of equity.�
In
Peters v Davison,[97] the Court of Appeal affirmed that the effect of
the decision in Anisminic[98] is in general to render redundant any
distinction between jurisdictional and non-jurisdictional error of law.
The Court, recognising that the general availability of error of law as
a ground for review of the exercise of public power is well established
in New Zealand,[99] stated that:[100]
“Error of law is a
ground of review in and of itself; it is not necessary to show that the
error was one that caused the tribunal or Court to go beyond its
jurisdiction.�
It is therefore now only necessary to show that
the decision-maker erred and that the relevant error of law is “one
which is an error in the actual making of the decision which affected
the decision itself.�[101]
Review for error of fact
The
courts have traditionally claimed no jurisdiction to review for error
of fact. It has always been thought that the decision-maker must
exercise judgment itself as to the existence or non-existence of facts.
The availability of review was summarised by Cooke J in Car Haulaways
Ltd v Attorney-General:[102]
“Unless the errors of law . . .
go to jurisdiction, they are not redressable … A fortiori, findings
of fact on the very question which the tribunal is set up to decide,
and conclusions based on an evaluation of the evidence bearing on such
questions, would be immune [to review]…�.
However, just as
the decision in Anisminic has expanded review for error of law
substantially to include errors made in the course of the proceedings
(as opposed to errors going to jurisdiction), so too has review of
error of fact expanded. In Secretary of State for Education and Science
v Tameside Metropolitan Borough Council,[103] Lord Wilberforce said
that the decision-maker could not act “upon an incorrect basis of
fact�.[104] Similarly, Lord Diplock held that not only must the
decision-maker ask the right question, he must be adequately informed
so as to answer that question correctly.[105]
In New Zealand the expansion began with the dicta of Cooke J in Daganayasi:[106]
“The
Minister has implied authority to delegate the function of making
inquiries, but if as a result the Minister is lead into a mistake and a
failure to take into account the true facts, it is not right that the
appellant should suffer. On this view the decision is invalid on the
ground of mistake as well as on the ground of procedural unfairness.�
Richmond
P and Richardson J were not prepared to go so far and instead observed
merely that the law on this matter was “far from settled�.[107]
Cooke J further reaffirmed his view that mistake of fact was a separate
ground of review in Bulk Gas Users Group Ltd. Likewise, in Fowler &
Roderique Ltd[108] Casey J accepted factual error as a ground for
review. In NZ Fishing Industry Association Inc v Minister of
Agriculture and Fisheries,[109] the Court of Appeal was evenly split on
the existence of review for error of fact. Cooke P, with whom Casey J
concurred, referred to the judgment of Casey J in Fowler &
Roderique and reaffirmed factual error as a ground of review:
“[T]o
jeopardise validity on the ground of mistake of fact the fact must be
an established one or an established and recognised opinion; and that
it cannot be said to be a mistake to adopt one of two differing points
of view of the facts, each of which may reasonably be held.�
Richardson
J, however, reaffirmed his position in Daganayasi and declined to
express any view as to mistake of fact as a ground for granting relief
in judicial review proceedings.[110]
Recently, in Lewis v Wilson
& Horton Ltd,[111] the Court of Appeal held unanimously that the
High Court is not permitted to reopen any determination of fact on an
application for judicial review. The Court stated that the High Court
could only intervene where the factual matter was a condition precedent
to the exercise of power. In other words, an error as to
“jurisdictional fact�, or an error of fact resulting in a decision
that is unreasonable, is required.[112] Elias CJ, delivering the
judgment of the Court, held:
“Whatever the scope of mistake of
fact as a ground of judicial review (as to which see Daganayasi v
Minister of Immigration [1980] 2 NZLR 130; New Zealand Fishing Industry
Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR
544), the additional facts put forward in the High Court do not
establish reviewable error. The approach adopted in the High Court
would have the effect of permitting any conclusion of fact to be
reopened on application for judicial review. The supervisory
jurisdiction does not go so far, except where the decision of fact is a
condition precedent to the exercise of power or where the error of fact
results in a decision which is unreasonable. In such cases, the
decision-making process will have miscarried. That was not the case
here, even accepting the Judge to have been under the wrong impression
of the true facts. Given however the conclusions reached on the
reasonableness of the decision, it is unnecessary to consider the point
in more detail.�
While the Court of Appeal in Lewis may now
have drawn the parameters of review for error of fact more narrowly
than did Cooke J in New Zealand Fishing Industry or Casey J in Fowler
& Roderique, the decision in Lewis demonstrates that mistake of
fact can still provide a basis for judicial review in appropriate
circumstances.
The circumstances now available for judicial
review of error of fact include, at a minimum, those where the
decision-maker has acted in the absence of evidence or material of
probative value.[113] Similarly, if the mistake of fact is fundamental
it will vitiate the basis upon which the decision has been made. The
more orthodox approach to matters of fact is one of relevancy of
considerations. The approach is described by Cooke P in New Zealand
Fishing Industry:[114]
“I accept that the relevant
considerations which the Minister was bound to take into account
included such facts obviously material to the mandatory statutory
considerations as were or ought to have been known to himself or the
Ministry. That is to say, the duty to consider statutory criteria
extends to facts so plainly relevant to those criteria that Parliament
would have intended them to be taken into account and a reasonable
Minister would not fail to do so. See CREEDNZ Inc v Governor General
[1981] 1 NZLR 172, 183; Ashby v Minister of Immigration [1981] 1 NZLR
222, 225-226.�
Therefore, at the very least, a mistake of fact
is likely to add great weight to a contention that the decision-maker
has failed to take all relevant factors into account.
Irrationality
The two grounds of review to be considered under the head of irrationality are substantive unfairness and proportionality.
Substantive Unfairness
The
availability of substantive unfairness as a stand-alone ground of
review in New Zealand is not yet settled. The Court of Appeal affirmed
that it was a ground of review in Thames Valley Electric Power Board v
NZFP Pulp & Paper Ltd,[115] where Cooke P stated that there was
“no lack of authority that [substantive unfairness] is a legitimate
ground of review, shading into but not identical with
unreasonableness�.[116] And later:[117]
“One situation
justifying intervention for unfairness might be where the procedure and
the decision of an administrative body, although possibly just
surviving challenge if viewed separately, were in combination so
questionable as to impel the conclusion that, in the words of Lord
Donaldson of Lymington MR in R v Panel on Take-overs and Mergers, ex
parte Guinness plc [1990] 1 QB 146, 160, "something had gone wrong of a
nature and degree that required the intervention of the court . . ."
The merit of the substantive unfairness ground is that it allows a
measure of flexibility enabling redress for misuses of administrative
authority which might otherwise go unchecked.�
The other
Judges exercised some caution in describing the ground. McKay J warned
against the erosion of the ground into mere ‘unfairness’:[118]
“The
authorities cited by the President amply demonstrate that unfairness
can be a ground of judicial review, but it does not follow that
anything that can be described as "unfair" will suffice. As Lord
Templeman said in Re Preston [1985] AC 835 at p 864, in most cases in
which review has been granted there has been some proven element of
improper motive. At p 866 he points out that error of law was
sufficient in HTV Ltd v Price Commission [1976] ICR 170, and at pp
866-867 that a breach of contract or breach of representation may fall
within the ambit of "abuse of power" for which judicial review may be
the appropriate remedy. While it may be appropriate to group such cases
under the generic description of "unfairness", there is a danger that
in doing so one may convey the impression that anything that is
"unfair" will be sufficient.�
Fisher J gave the strongest
indication that substantive unfairness should not be treated as a
stand-alone ground of review, commenting that “it will continue to be
necessary to identify a more specific and principled administrative law
basis for intervention� in cases where substantive unfairness was
pleaded.[119]
More recently, the Court of Appeal commented in
Pharmaceutical Management Agency Ltd (Pharmac) v Roussel Uclaf
Australia Pty Ltd[120] that the area required further consideration and
would “no doubt be developed on a case by case basis.�
Proportionality
The
concept of proportionality as a ground of review was raised by Diplock
LJ in CCSU.[121] The concept is based in international and Napoleonic
law, echoed in the jurisprudence of the European Court of Justice and
the European Court of Human Rights.[122] De Smith, Woolf & Jowell
refer to a resolution of the Committee of Ministers of the Council of
Europe, defining proportionality as a requirement on an administrative
decision making body to:[123]
“maintain a proper balance
between any adverse effects which its decision may have on the rights,
liberties, or interests of persons and the purpose which it pursues.�
How
the doctrine of proportionality might apply to judicial review in New
Zealand in the future is not yet clear. Thomas J commented obiter on
the issue in Waitakere City Council v Lovelock:[124]
“The
close affinity of proportionality to the concept of unreasonableness is
plain to see. Proportionality recognises that an administrative
discretionary power should not be exercised in a manner which causes
injury to individuals out of proportion to the perceived advantage to
the public. But this question can only be satisfactorily answered by
assessing the reasonableness of the relationship between the objective
which the authority seeks to achieve and the means it employs to
achieve that end. See R v Secretary of State of the Home Department, ex
parte Brind [1991] 1 AC 696.
Whether proportionality will be
classified as a separate ground of review or viewed as an aspect of
Wednesbury unreasonableness remains uncertain. In Ex parte Brind the
concept was seen as having a significant substantive element and, while
rejected in that case, its future application arguably was not ruled
out. Lord Diplock noted at p 410 that the ground was well established
in several fellow European Community countries and further development
on a case-by-case basis could lead to the adoption of the concept in
English law.�
However, the status of the doctrine of
proportionality remains unclear and, in Isaac v Minister of Consumer
Affairs,[125] Tipping J rejected the notion of proportionality as an
independent ground of review, considering that it was merely a part of
reasonableness.
Joseph[126] has suggested that proportionality,
along with the duty to act consistently when exercising decision-making
powers, could form part of the basis of what he calls “constitutional
review�, a more substance-based review procedure based around New
Zealand’s constitutional legislation and documents such as the New
Zealand Bill of Rights Act 1990 and the Treaty of Waitangi. However,
such a basis for review has not yet been considered by a New Zealand
court.
Procedural Impropriety
In Breen v Amalgamated Engineering Union, Lord Denning stated:[127]
"It
is now well settled that a statutory body, which is entrusted by
statute with a discretion, must act fairly. It does not matter whether
its functions are described as judicial or quasi-judicial on the one
hand, or as administrative on the other hand, or what you will […].
Even though its functions are not judicial or quasi-judicial, but only
administrative, still it must act fairly"
This statement defines
the nature of procedural fairness and it is now accepted that
procedural impropriety and the rules of natural justice “mean no more
than the duty to act fairly…�[128]
As noted above, an
affected party may have been given a legitimate expectation of
consultation either by an express promise or representation,[129] or by
a representation implied from an established practice of consultation
by the decision-maker.[130] Accordingly, it is not necessary that the
representation be made directly to the affected party; it is sufficient
that the affected party is a member of a class of persons subject who
are the subject of the representation.
The first issue arises,
however, over whether the affected party must actually know of the
promise or representation and establish reliance upon that it. The
courts have been split in their approach to this issue. In Minister for
Immigration and Ethnic Affairs v Teoh,[131] the High Court of Australia
adopted an objective approach and held that “it is not necessary that
a person seeking to set up such a legitimate expectation should be
aware of…or personally entertain the expectation; it is enough that
the expectation is reasonable…�[132] However, in Lawson, Williams J
took the opposite approach and emphasised the applicant’s lack of
knowledge and reliance upon the statements said to establish the
legitimate expectation.[133]
Secondly, it is presently unclear
whether the legitimate expectation is of procedural fairness or that a
benefit of a substantive nature will be granted. In Lawson, the Court
held:[134]
“… the most that this Court can review is the
"quality of an administrative decision as well as the procedure"
(Thames Valley at p 652) in order to see whether the company has acted
fairly. The Court cannot review the substance or merits of the
decision.�
However, in New Zealand Maori Council v
Attorney-General, the Privy Council endorsed the legal significance of
a substantive expectation[135] and, although noting that it may not be
directly enforceable in law, stated: [136]
"The assurance once
given creates the expectation, or to use the current parlance the
'legitimate expectation', that the Crown would act in accordance with
the assurance, and if, for no satisfactory reason, the Crown should
fail to comply with it, the failure could give rise to a successful
challenge on an application for judicial review."
In any event, the continued usefulness of the legitimate expectation doctrine is open to question. Joseph notes that:[137]
“A
legitimate expectation does not materially add to substantive
unfairness as a ground of review; to renege on one’s undertaking or
promise is not ‘fair play in action’ (Daganayasi v Minister of
Immigration [1980] 2 NZLR 130 at 140 per Cooke J (CA)).�
The
possibility that legitimate expectation may be usurped by substantive
unfairness as a ground of review has received judicial support in New
Zealand. In Northern Roller Milling Co Ltd v Commerce Commission,[138]
Gallen J appeared to accept that legitimate expectation itself as a
concept is a shorthand term for an expectation that decision making
will be carried out in accordance with those principles which the law
embodies and “that the two concepts of legitimate expectation and
substantive fairness are mutually reinforced.�[139]
Finally,
it is important to distinguish between the concept of legitimate
expectation in and the status of mandatory relevant considerations. In
Teoh,[140] the High Court of Australia recognised that “ratification
of a[n international] convention is a positive statement by the
executive … to the world and to the Australian people that the
executive government and its agencies will act in accordance with the
Convention�.[141] The Convention gave rise to a legitimate
expectation that the decision-maker would act in conformity with it.
Thus, if the decision-maker proposes to make a decision inconsistent
with the legitimate expectation, procedural fairness requires that the
person affected should be given notice and an adequate opportunity to
be heard.
In New Zealand, the courts have been more circumspect
in usurping the role of the decision-maker. In Tavita v Minister of
Immigration,[142] Cooke P left open the question of whether a
decision-maker’s powers could be subject to limits read in by
reference to international treaty obligations. However, although the
law has remained somewhat undeveloped,[143] the courts have
nevertheless retreated from the position suggested in Tavitia and have
instead re-emphasised the importance of leaving policy making to New
Zealand's elected representatives and their delegates in the executive;
including also New Zealand's international obligations. This is
reflected in this statement by Greig J in Patel v Minister of
Immigration:[144]
“They [Tavita and Puli'uvea's case] are
couched in broad terms and in any event there must be a balancing
between what may be seen in the particular case as international
obligations and those applying internally in the administration of
immigration policies and the statute.�
In contrast to the
Australian approach in Teoh, in New Zealand provided the decision-maker
weighs all matters that may materially affect the outcome[145] and
takes into account the whole of the circumstances,[146] then the
decision will not be disturbed for error of law. That is, there is no
legitimate expectation that the decision-maker will act in conformity
with an international instrument.
This more traditional approach
is echoed in the decision in Patel v Chief Executive of the Department
of Labour[147] where Baragwanath J, defining the role of the court,
held that “in certain cases the Court's role is to form its own view
on matters of jurisdictional fact; in others it will apply Wednesbury
principles�.[148] This means that the focus of the court is not
whether the substance of the decision accords with the international
obligation (per the approach in Teoh), but rather whether the decision
was unreasonable or that it was one which failed to take account of all
the relevant circumstances, including the international
obligations.[149]
Standing
The expanding scope of the
courts’ jurisdiction concurrent with the increasing scope of
governmental powers has been further echoed in the courts’ approach
to the rules of standing. Formerly, the rules of standing imposed
complex and restrictive requirements upon a person seeking an
administrative law remedy.[150] However, the courts now take a more
relaxed approach and focus increasingly on the substantive merits of
the application for review.
The current approach has been
discussed recently by the Court of Appeal in Peters v Davidson.[151] In
that case, the Court rejected the proposition that “the Court can
make a declaration only if there are rights and duties of, and owed
between, relevant parties.�[152] Rather, the Court emphasised the
importance of judicial review and held that “the Courts as a matter
of constitutional principle have the power to see that public
authorities do not make material errors of law�.[153]
Judicial Review In Specialist Jurisdictions
Commerce Commission
Judicial
review has not featured prominently in actions under the Commerce Act.
However, in Commerce Commission v Telecom Corporation of New Zealand
Limited,[154] the Court of Appeal upheld a decision in the High Court
that by instituting an inquiry into competition in the
telecommunications industry, the Commission had acted outside its
authority.
Recently, the High Court has found that there are
some powers of the Commission under the Commerce Act, for example the
discretion to decline to consider an application for clearance or
authorisation, which do not attract a right of appeal under the Act. In
those cases, judicial review is appropriate.[155]
Resource Management Act 1991
Section
23 of Resource Management Act 1991 (“the RMA�) provides that
compliance with that Act “does not remove the need to comply with all
other applicable Acts, regulations, bylaws and rules of law.� This
means that decisions under the RMA may be susceptible to judicial
review. However, that reviewability is subject to s296, which provides
that where there is a right to refer any matter for inquiry to the
Environment Court or to appeal to the Court against a decision of a
local authority, consent authority or any person under the RMA or under
any other Act or regulation, no application for judicial review may be
made unless the right of referral or appeal has been exercised.
Applications
for judicial review have been of particular use in challenging
decisions under s94 RMA by an authority that an application for
resource consent under the RMA need not be notified. Judicial review
under this section has been permitted as there is no general right of
appeal.[156]
Standing for judicial review under s94 attaches to
“anyone whose ability to participate in the resource planning
processes was taken away by the failure of a consenting authority to
notify the application�[157], although Elias J notes that a similar
test was rejected on different facts by Blanchard J in Quarantine Waste
NZ Ltd v Murray & Ors.[158]
Comments by the Court of Appeal
in Bayley & Ors v Manukau City Council & Anor[159] would appear
to support Elias J’s conclusion, although it should be noted that in
that case the Court was not concerned with standing:[160]
“There
is a policy evident upon a reading of Part VI of the Act, dealing with
the grant of resource consents, that the process is to be public and
participatory. Section 94 spells out exceptions which are carefully
described circumstances in which a consent authority may dispense with
notification. In the exercise of the dispensing power and in the
interpretation of the section, however, the general policy must be
observed. Care should be taken by consent authorities before they
remove a participatory right of persons who may by reason of proximity
or otherwise assert an interest in the effects of the activity proposed
by an applicant on the environment generally or on themselves in
particular.�
The approach to judicial review under the RMA was explained by Blanchard J in Quaratine Waste NZ Ltd v Waste Resources Ltd:[161]
“Upon
an application for judicial review the Court does not substitute its
own decision for that of the consent authority, it merely determines
whether proper procedures were followed, whether all relevant and no
irrelevant considerations were taken into account and whether a
decision was reasonably made. Unless the statute otherwise directs, the
weight to be given to particular relevant matters is one for the
consent authority not for the Court to determine.�
This
passage has received considerable support in the High Court,[162] and
Blanchard J made an almost identical statement of the principles again
when delivering the Court of Appeal’s judgment in Pring v Wanganui
District Council & Anor.[163]
Employment Relations Act 2000
Under
the Employment Relations Act 2000 (“the ERA�), the High Court does
not have jurisdiction to hear applications for review arising out of
powers exercised under that Act or specific parts of the State Sector
Act 1988. All applications for review against decisions by the
Employment Relations Authority, any employer, any union, the Minister
or Department of Labour, or any person must be made to the Employment
Court,[164] and that Court has the “full and exclusive
jurisdiction� to determine the application.[165] Where there is a
right of appeal in respect of any matter, no application for review may
be made unless and until that right has been exercised.[166] Appeals
against orders made in respect of applications under s194 are to the
Court of Appeal.[167] If a party wishes to have reviewed any
proceedings before the Employment Court itself, the application must be
made to the Court of Appeal.[168]
By and large, the Act
re-enacts the relevant provisions of the Employment Contracts Act 1991
(“the ECA�) in this regard. One exception is the restriction in
section 194 of ERA on the parts of the State Sector Act under which
decisions may be reviewed in the Employment Court. The ECA did not
contain such a restriction. According to Brookers Employment Law,
“the new restrictions on the scope of judicial review do not achieve
a consistent delineation between employment-related and
non-employment-related decisions under the State Sector Act�.[169] In
Rankin v A-G in respect of the State Services Commissioner[170] Goddard
CJ commented that “[t]his amendment of quite a radical nature is
something of a mystery�.[171]
Another difference is the
availability of judicial review in cases of dismissal. Under the ECA,
dismissal could be, and was, challenged by review. However, section
113(1) of ERA provides that dismissal may only be challenged before the
Employment Relations Authority under the personal grievance provisions
of the ERA.
The legislation is very recent and as yet these
provisions have not been tested. However, given the substantive
re-enactment of the ECA, principles developed in the Courts under that
Act are still relevant. Under the ECA, the following approaches by the
Employment Court to the exercise of the judicial review power were
observed:
As in general cases of judicial review, review in the
Employment Court is concerned with the regularity and fairness of the
decision-making process, not the outcome of the decision itself.[172]
The
application of natural justice is well established among the implied
and express duties in an employment contract (agreement). Where a
current employee applies for another position with the same employer,
the employer may owe that employee some additional natural justice
obligations.[173]
The principles of fairness apply to action
taken under most, if not all, employment contracts. Very clear
statutory or contractual language would be necessary to exclude that
element.[174]
The test of unreasonableness in Wednesbury,[175]
requiring a “high� threshold, applies equally in an employment
context.[176] However, the Employment Court has suggested that the
threshold may be subject to modification in the case of public service
employment.[177]
Judicial Review and Accident Compensation Law
The
Accident Insurance Act 1998 and its predecessor legislation, the
Accident Rehabilitation and Compensation Insurance Act 1992 contain a
comprehensive system of appeals, including to the High Court and Court
of Appeal of points of law. However, judicial review is not completely
excluded. In King v ACC,[178] Barker J found that the failure of the
Accident Compensation Corporation to exercise a power of decision to
assess an applicant for permanent incapacity was reviewable because by
refusing to make an assessment the Corporation had denied the applicant
the chance of having the matter debated on the merits and (presumably)
subjected to the normal appeals process.
Haines House Haulage Co
Ltd v ACC[179] and Works Civil Construction Ltd v ACC & Anor[180]
involved judicial review of the lawfulness of regulations[181]
promulgated under the Accident Rehabilitation and Compensation Act 1992
and of decisions made under those regulations. Works Civil Construction
was heard after Haines House Haulage was heard, but before the judgment
in that case was delivered. Both decisions found that the regulations
were not ultra vires.
In Works Civil Construction, Goddard J
found that judicial review of a decision made by the Corporation under
the Regulations to increase the applicant’s experience rating was
unavailable because the applicant had not chosen to exercise its rights
of appeal and review under the Act. Section 89(7) of the Act provided
that a person who has a right of appeal or review under the Act had no
other remedy, and the Judge considered that to attempt to bring
judicial review proceedings without first exercising the right of
appeal or review was an attempt to circumvent the specific scheme of
the Act.
However, in Haines House Haulage, Paterson J found that
while there was a right of review or appeal against the Corporation,
there was no equivalent right against decisions made by the Minister of
Accident Compensation. The decision of which review was sought in that
case was one made by the Minister, and so judicial review was available.
Accident
Compensation law has recently undergone legislative change again, but
the privative clauses contained in the repealed Accident Insurance and
Accident Rehabilitation and Compensation Insurance Acts have not been
altered to any great extent.[182]
AVOIDING JUDICIAL REVIEW CHECKLIST– DOING YOUR BEST TO MAKE YOUR PROCEDURES “JUDGE-PROOF�
Have
you identified the specific power under which you are acting? Is there
an Act or Regulations (or both)? Are there departmental guidelines, or
a policy document, that may have created legitimate expectations or
which should otherwise be had regard to?
   
G
Are
you the person with the legal power to make the decision? If not, has
the power been properly delegated? Is it clear that any discretion is
being exercised independently and on an unfettered basis?
   
G
Are
you satisfied that no question of bias arises? Have you already made up
your mind and do you merely intend to structure the considerations to
support your decision?
   
G
Have you identified person or persons prejudicially affected by the proposed decision/action (if any)?
   
G
If
so, have they been fully informed of the nature of the proposal and
given an opportunity to make representations about it (unless the
legislation exempts you)?
   
G
Has proper consideration been given to their representations?
   
G
Is this apparent from the decision and its supporting paperwork (see note 3 above)?
   
G
If affected persons have not been fully consulted, have you taken legal advice on this point?
   
G
Have
you checked that your facts are accurate? If there is something you are
not sure about, do not make assumptions or postpone obtaining a report
on the issue unless, or until, someone challenges it (usually after the
decision is made). It is difficult and undesirable to backtrack;
   
G
Are you satisfied that the purpose you are acting for is authorised by the legislation?
   
G
Have
you taken into account all relevant matters, including those specified
in the legislation and those matters that seem to you to be obviously
relevant, although not necessarily specified?
   
G
Are these apparent from the decision or its supporting documentation(see note 3 above)?
   
G
Have
you ensured that none of the factors you propose to take into account
are improper or irrelevant? Step back and think about what a reasonably
well-informed objective member of the public would think about you
taking such considerations into account. Are you only using those
considerations to justify a decision you have already made because the
proper relevant considerations do not support your decision?
   
G
Are you being consistent with previous practice and/or expressed policy or representations made?
   
G
If not, have you taken legal advice on this point?
   
G
Have you considered the particular merits of the case and not simply applied a predetermined policy?
   
G
Is this apparent from the decision or its supporting paperwork?
   
G
Have
you clearly set out all the reasons for you recommendation or decision?
You must do this in the first instance: do not wait until someone
challenges your decision;
   
G
Does your decision
unreasonably affect the rights, liberties, or interests of interested
persons? If so, is this injury out of proportion to the perceived
advantage to the public? Can you fulfil your decision-making
obligations in another way, so to minimise injury to affected persons?
   
G
Are
you satisfied that, from an objective standpoint, all interested
persons have been treated fairly and the decision is not unreasonable?
   
G
[1]
LLB(Hons) VUW, 1989; MJur(Dist) Auck, 1994; Crown Counsel, Crown Law
Office, 1994-8; Partner, MinterEllisonRuddWatts. The extensive
assistance of James Neumann (LLB(Hons)(Canterbury)), Solicitor,
MinterEllisonRuddWatts, in the writing of this paper, is gratefully
acknowledged.
[2] In New Zealand, the sovereign legal power lies
in the Parliament of New Zealand, which consists of the Sovereign in
right of New Zealand and the House of Representatives: Section 14(1) of
the Constitution Act 1986.
[3] This, despite now well-known
dicta of Cooke J (as he then was) in cases such as Taylor v NZ Poultry
Board [1984] 1 NZLR 394, 398 (CA); L v M [1979] 2 NZLR 519, 527 (CA);
Brader v Ministry of Transport [1981] 1 NZLR 73, 78 (CA); NZ Drivers’
Assn v NZ Road Carriers [1982] 1 NZLR 374, 390 (CA) (where McMullin and
Ongley JJ concurred in the relevant observations); Fraser v State
Services Commission [1984] 1 NZLR 116, 121 (CA).
[4] Marbury v Madison 1 Cranch 137; 2 L Ed 60 (1803)
[5]
R v Drybones [1970] SCR 282; 9 DLR (3d) 473 (SCC); Hunter et al v
Southam Inc (1984) 9 CRR 355; [1984] 2 SCR 145 (SCC); Ford v Quebec
(Attorney-General) [1988] 2 SCR 712; 54 DLR (4th) 577; Allan Singer Ltd
v Quebec (Procureur Général) [1988] 2 SCR 790; Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; Cole v
Whitfield (1988) 165 CLR 360.
[6] R v Secretary of State for the
Home Department, ex parte Brind [1991] 1 AC 696 (HL); see also R v
Secretary of State for the Home Department, ex parte Leech (No.2)
[1994] QB 198.
[7] R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603 (ECJ & HL)
[8] (1765) 19 State Tr 1029
[9] (1810) 12 East 526; 104 ER 206
[10] Vol.2 of Tracts published by Mr Hargrave, part 2, chapter 6, p 77
[11](1810) East 526 at 530; 104 ER 206, 208
[12] Supreme Court Ordinance 1840, Sess II, No.1, sections 2-5
[13] See Paterson, An Introduction to Administrative Law in New Zealand (1967) at p 1
[14] [1899] 2 Ch 608, 614-615
[15]
Dunedin City and Suburban Tramway Company v Ross (1895) 13 NZLR 366;
Point of Ayr Colleries Limited v Lloyd-George [1943] 2 All ER 546
[16] Kruse v Johnson [1898] 2 QB 91, 99
[17] Hall & Co Limited v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240
[18]
Fawcett Properties Limited v Buckingham County Council [1961] AC 636;
Hall & Co Limited v Shoreham-by-Sea Urban District Council, ibid.
[19] Paterson, An Introduction to Administrative Law in New Zealand (1967) at p 8-9
[20]
Paterson refers to a number of cases, including Grater v Montagu (1904)
23 NZLR 904 and Thompson v Wellington City Corporation [1957] NZLR 84
[21] The Queen v Symonds (1847) NZPCC 387
[22] Godkin v Newman [1928] NZLR 593
[23] Jensen v Wellington Woollen Manufacturing Co Ltd [1942] NZLR 394
[24] [1968] AC 997, 1060
[25] [1925] AC 578, 606-607 per Sumner LJ
[26] Ridge v Baldwin [1964] AC 40, 72 per Lord Reid
[27] Breen v Amalgamated Engineering [1971] 2 QB 175, 189
[28]
R v Inland Revenue Commissioners, ex parte National Federation of the
Self-Employed and Small Businesses Ltd [1982] AC 617, 641
[29] Budget Rent A Car Ltd v Auckland Regional Authority [1985] 2 NZLR 414, 418
[30]
See Roberto Unger, Law in Modern Society (New York, 1976); and “The
Critical Legal Studies Movement�, 96 Harvard L. Rev. 563-675 (1983);
Morton Horwitz, “The Rule of Law; An Unqualified Human Good?�, 86
Yale L.J. 561 (1977) who argue that the rule of law, understood as a
rule of judicial fidelity to law, imposes obligations of neutral
apolitical impartiality and consistency on judges that are in fact
impossible to meet, and that the distinction between law and politics
which it is accordingly intended to police, is incoherent and should
accordingly be abandoned.
[31] The Department for Court does not
keep statistics noting the types of cases before the courts. However,
LINX searches for "judicial review" and the year 1985-2000 (in five
year intervals) reveals the trend of increasing judicial review cases
before the courts: 1985 – 24; 1990 – 36; 1995 – 57; 2000 – 92.
Searches of BRIEFCASE reveal a similar trend: 1990 – 38; 1995 – 48;
2000 – 104.
[32] [1985] AC 374, 408-409
[33] For the express adoption of this approach in New Zealand, see Burt v Governor-General [1992] 3 NZLR 672 (CA)
[34] Rowling v Takaro Properties Ltd [1975] 2 NZLR 537 (CA); Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA).
[35] Patel v Chief Executive of the Dept of Labour [1997] 1 NZLR 102.
[36] Mackenzie District Council v Electricity Corp. of NZ [1992] 3 NZLR 41 (CA).
[37] See, in respect of unincorporated bodies: Finnigan v NZ Rugby Football Union Inc [1985] 2 NZLR 159 (CA).
[38] Electoral Commission v Cameron [1997] 2 NZLR 421.
[39] Re Erebus Royal Commission; Air NZ Ltd v Mahon (No 2) [1981] 1 NZLR 618 (CA); [1983] NZLR 662 (PC).
[40]
Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 at p 11
per Henry, Keith, McGechan JJ (CA). See also R v Panel on Take-overs
and Mergers, ex parte Guinness plc [1990] 1 QB 146, 159 – 160; Ridge
v Baldwin [1964] AC 40 at p 70 – 71.
Note the discussion below on the development of review of privatised trading entities that control significant public services.
[41] Council for the Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 418 per Lord Roskill
[42] De Smith, Woolf and Jowell Judicial Review of Administrative Action (1995) para 6-031
[43]
See questions of “high policy� (identified by Taylor LJ in R v
Secretary of State for the Home Department ex p. Everett [1989] QB 811
– such as making treaties, dissolving Parliament, mobilising the
armed forces) and questions of a lower order but involving “competing
policy considerations�, which Lord Diplock in the GCHQ case
considered to involve “a balancing exercise which judges by their
upbringing and their experience are ill-qualified to perform�.
Council of Civil Service Unions v Minister for the Civil Service [1985]
AC 374, 411.
[44] See Lord Bridge in R v Secretary of State for
the Environment, ex p Hammersmith and Fulham LBC [1991] 1 AC 521, 593,
on the need for an “objective criterion� in order for a decision to
be amenable to judicial review.
[45] Supra n.42 at para 6-034
[46] (Court of Appeal, Wellington, CA 289/01, 25 February 2002)
[47] Ibid at para 27
[48] Ibid at para 28
[49] C.C.S.U. v Minister for the Civil Service [1985] AC 374
[50] R v Secretary of State for the Environment, ex p. Nottinghamshire CC [1986] A.C. 240, 249 per Lord Scarman.
[51] Sir Robin Cooke, “Third Thoughts on Administrative Law� [1979] NZ Recent Law 218 at p 225
[52] Supra n.49 at p 950
[53]
See, Padfield v. Minister of Agriculture [1968] 1 All ER 694, 717 per
Lord Upjohn and Associated Provincial Picture Houses v Wednesbury Corp.
[1948] 1 KB 223, 228 per Lord Greene.
[54] See the discussion in
De Smith, Woolf and Jowell, Judicial Review of Administrative Action
(5th edn) at para 6-061 – 6-062 and Associated Provincial Picture
Houses v Wednesbury Corp. [1948] 1 KB 223, 228 per Lord Greene.
[55] [1991] 2 NZLR 129
[56] CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 182-183 per Cooke J.
[57]
New Zealand Fishing Industry Association Inc v Minister of Agriculture
and Fisheries [1988] 1 NZLR 544, 552 (CA) (per Cooke P).
[58] Supra n.42 at para 6-086.
[59] Also referred to (inconsistently) as unreasonableness or abuse of power, see De Smith, Woolf and Jowell at para 13-001.
[60] [1948] KB 223
[61] Ibid at p 229-230.
[62] [1996] 2 NZLR 537, 545
[63] See, De Smith, Woolf and Jowell, supra n.42 at para 13-086.
[64] [1996] 1 All ER 257.
[65]
For a discussion of the rule of law and the function of the courts in
upholding it, see Elias, “’Hard Look’ and the Judicial
Function� (1996) 4:2 Waikato Law Review 1-23.
[66] Supra n.42 at para 7-001
[67]
Board of Education v Rice [1911] AC 179 at p 182 per Lord Loreburn
(HL), quoted in Joseph, Constitutional and Administrative Law in New
Zealand (2nd ed) at para 23.1. The duty to listen fairly to both sides
includes the requirement to disclose all relevant material to
interested parties: Daganayasi v Minister of Immigration [1980] 2 NZLR,
130.
[68] Ibid at 141
[69] See also Re Erebus Royal
Commission [1993] 1 NZLR 662 (PC) which held that a party must be
warned and given an opportunity to respond before any finding that
impugns the reputation, credibility or livelihood of the affected party
is made.
[70] Often expressed as the principle of audi alteram partem.
[71] The principle of nemo judex in causa sua – literally, no man a judge in his own cause.
[72] Refer CREEDNZ, supra n.56, at p 179 per Cooke J and at p 186-187 per Richardson J.
[73]
Compare the restricted approach of R v Electricity Commissioners; Ex p
London Electricity Joint Committee (1920) Ltd [1924] 1 KB 171 (CA) with
the modern purposive approach of Ridge v Baldwin [1964] AC 40 (HL).
[74] [1987] 2 NZLR 56, 74
[75] [1999] 3 NZLR 1, 16
[76] Ibid
[77]
See: Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 (CA)
and more recently Te Heu Heu v A-G [1999] 1 NZLR 98.
[78] A-G (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 (PC)
[79] Lawson v Housing NZ [1997] 2 NZLR 474 at p 489-491.
[80] Te Heu Heu v A-G supra n.77. See, Joseph, at para 23.2
[81] Te Heu Heu v A-G supra n.77
[82] R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256, at p 256, quoted in Joseph, at para 23.5.1.
[83] Joseph, at para 23.5.1.
[84] Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 at p 148 per Cooke P.
[85] R v Box Street Metropolitan Stipendiary Magistrate; Ex p Pinochet (No 2) [2000] 1 AC 119 (HL)
[86] Joseph, Constitutional and Administrative Law in New Zealand (2nd edn) at para 23.5.2.
[87] Supra n.84
[88] Ibid at p 149 per Cooke P
[89] See for example Isitt v Quill (1893) 11 NZLR 224 (CA)
[90] [1986] 1 NZLR 159 per Henry J (HC)
[91] [1969] 2 AC 147 (HL).
[92] Ibid at p 169-170 per Lord Reid, at p 199-200 per Lord Pearce, quoted in Joseph, at para 20.7.1.
[93] Ibid at p 207
[94] See, Joseph at para 20.7.1.
[95] [1983] NZLR 129 (CA).
[96] Ibid at p 133
[97] [1999] 2 NZLR 164 (CA)
[98]
Supra n.91: as interpreted in O’Reilly v Mackman [1983] 2 AC 237,
278, and in R v Lord President of the Privy Council, ex parte Page
[1993] AC 682, 701.
[99] Bulk Gas Users Group v Attorney-General [1983] NZLR 129 and Hawkins v Minister of Justice [1991] 2 NZLR 530
[100] Supra n.97 at p 181 per Richardson P, Henry and Keith JJ (CA)
[101]
Ibid at p 202 per Thomas J, adopting the decision of Lord
Browne-Wilkinson in R v Lord President of the Privy Council, ex parte
Page [1993] AC 682, 701.
[102] (Supreme Court, Auckland, A 8/73,
8 August 1973), quoted in Attorney-General v Car Haulaways (NZ) Ltd
[1974] 2 NZLR 331, 333-334 per Haslam J (CA)
[103] [1977] AC 1014 (HL)
[104] Ibid at 1047
[105] Ibid at 1065
[106] Supra n.67 at p 149 (CA)
[107] Ibid at 132 per Richmond P and Richardson J
[108] Supra n.74
[109] Supra n.57
[110] Supra n.67
[111] [2000] 3 NZLR 546
[112] Ibid at 568
[113] Re Erebus Royal Commission; Air New Zealand v Mahon [1983] NZLR 662 (PC)
[114] Supra n.57 at 552
[115] [1994] 2 NZLR 641
[116] Ibid, at 652
[117] Ibid, at 652-653
[118] Ibid, at 654
[119] Ibid
[120] [1998] NZAR 59, 66
[121] Supra n.41 at 410
[122] De Smith, Woolf & Jowell, at p 593
[123] Ibid, at p 594
[124] [1997] 2 NZLR 385, 407
[125] [1990] 2 NZLR 606, 636
[126] Joseph, at p778
[127] [1971] 1 All ER 1148, 1153-1154; see Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1, 5 per Richmond P (CA)
[128]
O’Reilly v Mackman [1983] 2 AC 237, 275 per Lord Diplock; Royal
Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA).
[129]
See Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629;
Liverpool Taxi [1972] 2 QB 299; R v Secretary of State for the Home
Department, ex p Asif Mahmood Khan [1984] 1 WLR 1337.
[130] See:
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 (CA); R v
Secretary of State for the Home Department, ex p. Ruddock [1987] 1 WLR
1482; see more recently, Te Heu Heu v A-G [1999] 1 NZLR 98.
[131] (1995) 183 CLR 273 (per Mason CJ, Deane, Toohey, Gaudron JJ, McHugh J dissenting)
[132] Ibid at p 291 (per Mason CJ and Deane J)
[133]
Supra n.79 at p 489. See, De Smith, Woolf and Jowell at para 8-058 –
8-061 who suggest that it should not be necessary that the applicant be
aware of the representation, nor that the applicant demonstrate
reliance on the representation.
[134] Ibid at p 491
[135]
See also R v Secretary of State for the Home Department, ex parte
Ruddock [1987] 2 All ER 518, and R v Secretary of State for Transport,
ex parte Richmond upon Thames London Borough Council [1994] 1 All ER
577.
[136] [1994] 1 NZLR 513, 525 (PC); see also New Zealand Maori Council v A-G [1996] 3 NZLR 140, 183 per Thomas J (CA)
[137] Constitutional and Administrative Law in New Zealand (2nd edn) at para 23.2.
[138] [1994] 2 NZLR 747
[139] Ibid at p 750, quoting Taylor on Judicial Review (1991) in para 13.10.
[140] Supra n.131
[141] Ibid at p 291 per Mason CJ and Deane J (HCA).
[142] [1994] 2 NZLR 257, 266.
[143]
See Puli'uvea v Removal Review Authority [1996] 3 NZLR 543 (CA);
Bracanov v Moss [1996] 1 NZLR 445; Elika v Minister of Immigration
[1996] 1 NZLR 741; Ankers v Attorney-General [1995] 2 NZLR 595; Patel v
Minister of Immigration [1997] 1 NZLR 252; Patel v Chief Executive of
the Department of Labour [1997] 1 NZLR 102.
[144] [1997] 1 NZLR 252, 256 (HC)
[145] Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 147 (CA)
[146] A-G v New Zealand Maori Council [1991] NZLR 129 (CA)
[147] [1997] 1 NZLR 102 (HC)
[148]
Ibid at p 110. See R v Secretary of State for the Home Department, ex
parte Onibiyo [1996] 2 All ER 901, 912; Puli'uvea v Removal Review
Authority, supra n.143
[149] Puli'uvea v Removal Review Authority, ibid, and Tavita v Minister of Immigration, supra n.142
[150] For a discussion of the old rules of standing in New Zealand, see Joseph at para 25.7.2
[151] Supra n.97
[152] Ibid at 188
[153]
Ibid. See also, Fitzgerald v Muldoon [1976] 2 NZLR 615; Environmental
Defence Soc Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216
(CA); Finnigan v NZ Rugby Football Union Inc [1985] 2 NZLR 159 (CA);
Budget Rent A Car v Auckland Regional Authority [1985] 2 NZLR 414 (CA);
Quaratine Waste NZ Ltd v Waste Resources Ltd [1994] NZRMA 529.
[154] [1994] 2 NZLR 421 (CA)
[155] New Zealand Bus Limited v Commerce Commission (HC Wellington CP24/02, 27 February 2002, Wild J)
[156] Aro Valley Community Council v Wellington CC (1992) 1 NZRMA 221
[157]
Murray v Whakatane District Council [1999] 3 NZLR 276, 308. The
decision was affirmed on appeal in Waiotahi Contractors Ltd v Murray
& Ors [1999] 3 NZLR 276 (CA decision at 325)
[158] [1994] NZRMA 529
[159] [1999] 1 NZLR 568
[160]
Ibid, at 575: That passage was affirmed by the Court of Appeal in Body
Corporate 97010 v Auckland City Council & Anor [2000] 3 NZLR 513,
517-518
[161] [1994] NZRMA 529, 540
[162] Wilson Parking
New Zealand (1992) Limited v Auckland City Council & Anor [2001]
NZRMA 364, 369; Barrett v Wellington City Council & Ors [2000]
NZRMA 481, at para 62; Lowe & Ors v Dunedin City Council & Anor
[1999] NZRMA 280, 291
[163] [1999] NZRMA 519, 523
[164] Employment Relations Act 2000, s194(1)
[165] Ibid, s194(2)
[166] Ibid, s194(3)
[167] Ibid, s218
[168] Ibid, s213
[169] Brooker’s Employment Law (looseleaf) para ER194.06(2)
[170] (2001) 6 NZELC 98,645
[171] Ibid at para [32]
[172] Bunce v Fogelberg, Vice-Chancellor, University of Otago [2000] 1 ERNZ 1, 20
[173] Haddon v Victoria University of Wellington [1995] 1 ERNZ 375, 391
[174] Marlborough Harbour Board v Goulden [1985] 2 NZLR 378, 383 (per CookeJ)
[175]
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223, adopted in Wellington City Council v Woolworths NZ Ltd
(No.2) [1996] 2 NZLR 537 (CA)
[176] Commissioner of Police v NZ Police Association [1999] 2 NZLR 741; [1999] 1 ERNZ 624 (CA)
[177] Rennie v Attorney-General [1998] 1 ERNZ 58, 70
[178] [1994] NZAR 159
[179] [2001] NZAR 769
[180] [2001] 1 NZLR 721
[181] The Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993
[182] See Part 5 of the Injury Prevention, Rehabilitation, and Compensation Act 2001