Illegality Flashcards
How to understand legislation?
How parliament delegate powers to a body, so they need to understand how the statute applies to them and so does the court
How does law interact with discretionary power?
The rule of law, delegates to power lets them the right thing without too much guidance, even when it creates wide discretionary power
What is the courts’ role in upholding legislative mandates?
It is useful to be aware that there are law systems that rely on the same foundations and they take different approaches in a different jurisdiction
What is Illegality?
“By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.”
What do the judges have to do?
They will have to understand the statute, but if there is a judicial review application then the courts will reconsider their interpretation so it will be the court’s decision that will prevail regardless what the administrator says
What do you have to determine for Illegality? (3)
• “Read the … statute”* – Words – Purpose • Defining the scope of discretion • Ensuring discretion is properly exercised
Why do we have Illegality? (2)
– Limiting administrative power • Lawful power • The courts enforce the law – Good governance • Respecting Parliament, in its wisdom • Ensuring power is exercised for appropriate reasons
What if it was inconsistent?
Then there is unjust and discrimination
What is a fair warning?
Where you know in advance how you know the courts are going to treat you (you can form a plan in a way that will comply with the law) if you don’t know what the law is then your ability to plan may undermine yourself
What is the abdication of discretionary power? (4)
- Rigid adherence to fixed policy
- Contract or representation
- Acting under dictation
- Subdelegation
Cases for Illegality?
Ankers
What is the case where they discuss if the statute authorises and how they interpret the law to the facts? (6)
Ankers Wheeler Fiordland Venison NZ Fishing Industry Ass’n Peters Waikato Airport
What argument should you not use?
Floodgates
How to work out the statutory purpose to determine improper purpose? (4)
- What is the statute/provision for?
- Purpose sections
- Inference from statute’s effects
- Compromises?
What is illegality trying to prevent?
Fraud and corruption
What is the section and act that discusses that acts must be for the purpose of functions for crown entities?
s 18 of the Crown Entities Act 2004
Which case discusses whether an eviction decision is valid and misuse of power?
Wheeler
Which NZ case discusses the misuse of power?
Fiordland Venison
Which is the official purpose?
Has to be the primary one, and some additional purposes may be allowed
Which case discusses the mistake of fact?
NZ Fishing Industry Ass’n
What do you look for in a mistake of fact?
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
Which case discusses the error of law?
Peters
What do you look for in an error of law review?
The 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
In error of law, what is the court’s role?
To ensure public authorities have complied with the law (they follow fair procedures and complied with the law)
