Illegality

Question 1

How to understand legislation?

Answer 1

How parliament delegate powers to a body, so they need to understand how the statute applies to them and so does the court

Question 2

How does law interact with discretionary power?

Answer 2

The rule of law, delegates to power lets them the right thing without too much guidance, even when it creates wide discretionary power

Question 3

What is the courts’ role in upholding legislative mandates?

Answer 3

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

Question 4

What is Illegality?

Answer 4

“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.”

Question 5

What do the judges have to do?

Answer 5

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

Question 6

What do you have to determine for Illegality? (3)

Answer 6

•	“Read the … statute”*
–	Words
–	Purpose
•	Defining the scope of discretion
•	Ensuring discretion is properly exercised

Question 7

Why do we have Illegality? (2)

Answer 7

–	Limiting administrative power
•	Lawful power
•	The courts enforce the law
–	Good governance
•	Respecting Parliament, in its wisdom
•	Ensuring power is exercised for appropriate reasons

Question 8

What if it was inconsistent?

Answer 8

Then there is unjust and discrimination

Question 9

What is a fair warning?

Answer 9

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

Question 10

What is the abdication of discretionary power? (4)

Answer 10

• Rigid adherence to fixed policy
• Contract or representation
• Acting under dictation
• Subdelegation

Question 11

Cases for Illegality?

Answer 11

Ankers

Question 12

What is the case where they discuss if the statute authorises and how they interpret the law to the facts? (6)

Answer 12

Ankers
Wheeler
Fiordland Venison
NZ Fishing Industry Ass’n
Peters
Waikato Airport

Question 13

What argument should you not use?

Answer 13

Floodgates

Question 14

How to work out the statutory purpose to determine improper purpose? (4)

Answer 14

• What is the statute/provision for?
• Purpose sections
• Inference from statute’s effects
• Compromises?

Question 15

What is illegality trying to prevent?

Answer 15

Fraud and corruption

Question 16

What is the section and act that discusses that acts must be for the purpose of functions for crown entities?

Answer 16

s 18 of the Crown Entities Act 2004

Question 17

Which case discusses whether an eviction decision is valid and misuse of power?

Answer 17

Wheeler

Question 18

Which NZ case discusses the misuse of power?

Answer 18

Fiordland Venison

Question 19

Which is the official purpose?

Answer 19

Has to be the primary one, and some additional purposes may be allowed

Question 20

Which case discusses the mistake of fact?

Answer 20

NZ Fishing Industry Ass’n

Question 21

What do you look for in a mistake of fact?

Answer 21

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

Question 22

Which case discusses the error of law?

Answer 22

Peters

Question 23

What do you look for in an error of law review?

Answer 23

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

Question 24

In error of law, what is the court’s role?

Answer 24

To ensure public authorities have complied with the law (they follow fair procedures and complied with the law)

Question 25

What are the mandatory/irrelevant considerations? (7)

Answer 25

•	Relevant
–	Mandatory (must be taken into account)
–	Permissible (may be taken into account)
•	Irrelevant (not be taken into account)
•	Source
–	Statutory text
–	Implication

Question 26

How do we know is permission able or not?

Answer 26

The most obvious source would be statute for mandatory considerations not so much irrelevant considerations. Start with the text of the statute and you sometimes end with what was implied

Question 27

Which case discusses considerations?

Answer 27

Waikato Airport & NZ Fishing Industry Ass’n

Question 28

What are the key points to illegality? (7)

Answer 28

• Decisions must comply with law
• Courts interpret law & ensure legality
• Decisions must be
– Made by persons designated by law
– For purposes set by law
– Free from mistake of fact, error of law
– Based on mandatory and/or relevant, not extraneous considerations

Question 29

What are the grounds to JR? (3)

Answer 29

Illegality, irrationality and procedural impropriety

Question 30

What is illegality?

Answer 30

Public authorities must not go behind their legal powers or they will be acting ultra vires, meaning without legal authority