judicial review Flashcards
what are the three grounds of review
- illegality (decision maker misapplies statutory power)
- irrationality/unreasonableness (no reasonable decision maker could have arrived at it without something going horribly wrong)
- procedural impropriety (duty to act fairly - audi alteram partem and rule against bias)
what case shows the relevance of judicial review and why
Borrowdale v Director-General of Health - one can challenge an action or decision in judicial review if they allege that a decision has been handled wrongly. The rationale of judicial review is to promote and uphold the rule of law
what happened in Borrowdale v Director-general of Health
- given: lockdown did restrict protected rights under NZBORA
- Bloomfield issued paragraph M order under s 70(1) to forbid congregation in outdoor places of amusement and recreation and close all premises - Borrowdale won challenge on first 9 days - no legal obligation to comply
- 9 days later he issued a second notice under paragraph f requiring all persons to isolate or quarantine at home
- in media briefings Ardern directed people to isolate, stay in their bubbles, stay home and cease interactions with people outside their bubble - these statements lacked lawful authority
- argument that the PM has no authority to suspend the protected NZBORA rights by statements, court didn’t let it succeed because they somehow construed that Ardern’s statements had suspended s 5
- the argument that para f might only apply to individuals was rejected - they read it up because the Health Act was dealing with a big public problem
- rejected Crown’s argument that Ardern’s statements merely counselled voluntary compliance
what is the jurisdictional journey as to hearing judicial review cases
- the courts don’t exercise a statutory jurisdiction, the HC exercises inherent jurisdiction which can be traced back to the origins of the common law courts - the court of king’s bench which branched off the king’s council in the 12-13th centuries in particular. that jurisdiction was established here by our colonial supreme court and carried over through successive statutes - now the Senior Courts Act 2016.
how did the courts cling to the doctrine of ultra vires for judicial review
one could only succeed in bringing an action for judicial review if the applicant could establish the decision maker had committed a jurisdictional error. If they had, they had acted ultra vires. The court asked: did the decision maker have the authority to enter upon this matter and decide it, if no, there was a reviewable jurisdictional error. if they were acting within their jurisdiction at the outset there was nothing to review
what did Anisminic do the change how judicial review was heard in regards to jurisdictional errors being abolished
the HOL said it doesn’t matter at what stage of the process the error is committed, if it is material (that is, if it influences the outcome of the decision making) then it is reviewable - the distinction between a jurisdictional and non-jurisdictional error was abolished. this greatly expanded the scope of the courts powers of judicial review and review as a weapon
what does Peters v Davison say the intention of judicial review
it is intended to uphold the rule of law - government according to law (Dicey’s first meaning)
what two sided questions did the old way of the binary judicial review method ask
jurisdictional vs non-jurisdictional error - the answer the court gave determined the outcome, non-jurisdictional = you lose
legal rights v non-legal interests - you had to establish the decision making adversely affected your legally recognised rights, otherwise you lost
statutory power v royal prerogative power - if the public power exercised is conferred by statute it was reviewable
ministerial decision-making v other public decision-making - Ministers are individually and collectively responsible to Parliament rather than the courts so we shouldn’t intervene - that is the proper forum for accountability
void v voidable - if void, it was void ad initio (from the outside) and decision handed down was a nullity, if only voidable the decision is deemed at law to be legally effective and in force up until the point where it is set aside by a successful challenge in judicial review, which may never come
mandatory v directory - a statute may lay down certain requirements of people - mandatory requirements enjoined strict compliance, but not so if the requirement was seen to be directory only
judicial review is what three things
- inherently discretionary
- fully contextual - Robin Cooke: ingredients of the problem at hand dominate
- judicial review involves overall evaluation
what were the great prorogative writs
certiorari - order of the court quashing a decision that has been handed down in excess of powers granted to the decision maker
prohibition - anticipatory order, where if the decision maker enters upon a matter it will be beyond their jurisdiction
mandanus - to seek an order of the court compelling a statutory body/decision maker to perform a public statutory duty
In Martin v Ryan, how did Fisher J describe judicial review
“inherently discretionary”
there are no hard and fast rules in judicial review - it comes down to?
overall evaluation
Robin Cooke said: the ingredients of the problem at hand …?
dominate
What did Lord Steyn say in R (Daly) v Secretary of State for the Home Department about judicial review being fully contextual
“in law, context is everything”
what was said about judicial review involving “overall evaluation” in A.J. Burr Ltd v Blenheim Borough Council by Cooke J
“The determination by the court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account”
judicial review involving overall evaluation is inherently what?
discretionary
What dicta did Robin Cooke say in the foreword of Judicial Review: A New Zealand Perspective “captured the essence of judicial review”
R v Take-over Panel; Ex parte Guinness plc - “The ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the Court, and, if so, what form that intervention should take”
what statement of Cooke P about judicial review had the 3 defining characteristics implicit in it
“most cases turn on an analysis of the particular facts and an application of the particular provisions, usually but not always statutory, which are the source of the administrative power in question. Typically the result of the case flows from the facts and the statute or rule .. the ingredients of the problem at hand dominate”
what inference can be taken from Cooke P’s statements about judicial review as to the application of the doctrine of precedence
the doctrine of precedence has less application in this area of the law because every case is unique and must be decided on its own particular facts in its own particular legal context
how does Cooke P shun over-sophisticated analyses of judicial review principles or doctrines
“refinements in the way in which fairly simple and broad background doctrines are expressed are less important than the specific and interpretive issues”
these broad background doctrines reduce to simple “the decision maker must act in accordance with law, fairly and reasonably”
how was the distinction between appeal and review put in Chief Constable of the North Wales Police v Evans
- JR concerned with the decision making process - concerned not with the merits of the decision challenged, but rather with the manner in which the decision was made, whether the decision should be allowed to stand, has the decision been reached properly in accordance with the law and the requirements of fairness - if not, it will be reviewable no matter the merits of the decision
- appeal concerned with the correctness of the decision itself - here if the court finds the appeal is good, the court will substitute its own decision for that of the decision maker
what did Justice Hardy Boys in R v Sloan say about the proper concern on review, accepting the idea in NZ
concern on review was “with the decision making process, not the decision itself”
what happened in Fraser v State Services Commission
a public servant had been dismissed for certain alleged disciplinary offences. the decision to dismiss was based on a departmental report that was highly critical of Miss Fraser, which she had not been shown in advance of the hearing.
court held the decision was in breach of principles in natural justice. the judicial review was successful and it was quashed.
the case illustrates the duty of disclosure in administrative law and judicial review. all decision makers have a duty to disclose all relevant information to all interested parties.
Richardson J: concern was the manner in which the decision was reached - was it fair and in accordance with the requirements of judicial review - no (even though she had been involved in misconduct, that merit of the decision was not the courts concern)
how does the distinction between appeal and review serve as discipline
the courts powers are limited when they sit in review
what are the 2 basic limitations to what the courts can do in judicial review
democratic - 95% of public decision making powers are statutory. statutory powers are enacted by the parliament who we the people elect. if Parliament mandates X as the decision maker it must be X and not the courts.
constitutional - derives from the separation of powers - the courts exercise the judicial power on the state, not executive and the decisions are handed down by executive
the distinction between appeal and review has incidental relevance when
when the pleaded ground of challenge is procedural impropriety - this ground of review is focussed entirely on procedures of decision making and a challenge may be that the decision maker was biased, audi alterum partum (hear the other side) etc.
vs illegality and unreasonableness which are less focussed on the procedures of law making - more to do with application of the law and merit based respectively
what are 5 ways the distinction between appeal and review is unhelpful
- does not identify which decisions are reviewable and which aren’t e.g. in Curtis v Minister of Defence the decision challenged was beyond judicial scrutiny because of the subject matter of the decision itself - national defence and resource allocation beyond judicial scrutiny (removing air force combat wing)
- does not help courts fix the scope of discretionary powers (that involves statutory interpretation)
- does not identify the intensity of review in any particular case - different decisions will invite different intensities depending on the interests at issue e.g. a matter of human rights like immigration with have intensive scrutiny by the courts but an economic decision the courts will back of.
- distinction does not identify or indicate which decisions warrant judicial deference and which do not
- distinction does not assist courts in the exercise of public law discretions - judicial review is inherently discretionary and the distinction does not assist courts in any navigational sense in exercising the discretionary element of judicial review
what did Lord Donaldson in ex parte Guinness was the true motivation and catalyst in judicial review
“has something gone wrong of a nature and degree that requires the intervention of this court? If so, how should the court intervene?”
if something has gone wrong in decision making, what must the judge do
judge must translate the instinctual impulse or response into real language that can explain and justify the courts intervention, they must identify a recognised ground of judicial review - illegality, procedural impropriety or unreasonableness or maybe even breach of some generic statute relating to public administration e.g. NZBORA
why do more judicial review actions fail than succeed
they fail to trigger the required instinctual response to establish that something has gone terribly wrong with the decision making. should this occur, no amount of persuasive advocacy will get the applicant home and convince the judge
how can the judge in judicial review explain why the application can not succeed (because they didn’t have the something has gone wrong reaction) - give cases
Curtis v Minister of Defence - decision was non-justiciable
Wellington City Council v Woolworths (NZ) - given the nature of the decision, the decision maker may be accorded deference and the court will back off, in this case Wellington City Council was a democratically elected decision making body so the court would not intervene unless something was demonstrably wrong
Air New Zealand Ltd v Wellington International Airport Ltd - applicant was in the wrong forum, the right forum was the Commerce Commission because it was a purely commercial decision by the airport in this case
what happened in Curtis v Minister of Defence
The Clarke Labour government made a decision to disband the combat wing of the RNZAF. The court held the decision was non-justicable because it was a matter for the executive and not the courts. there was no legal yard stick to assess the impugned decision to disband because it was a decision to do with national defence and armament of armed forces
what happened in Wellington City Council v Woolworths (NZ)
a wellington rate payer challenged the WCC decision. the application failed because the WCC was a democratically elected decision making body so the court would not intervene - they would only intervene is something was demonstrably wrong and shown to have occurred. so deference was accorded due to the democratic nature of the decision maker
what happened in Air New Zealand v Wellington International Airport
the applicant challenged an airport pricing decision, but failed because the court said the applicant was in the wrong forum - the right forum would be the Commerce Commission - set up under the Commerce Act to investigate such decision making as the purely commercial decision in this case
is there such thing as unfettered discretion
no - every discretionary power has legal limits. unfettered discretion cannot coexist with the rule of law and constitutional government - a body with this would have absolute power, unamicable to the concept of limited government that underpins the system.
even if parliament seemingly conferred an unfettered discretion, the courts will read down that discretion and import legal limits into it as per the statutory purpose. courts assume parliament confers power for particular statutory purposes
what happened in Padfield v Minister of Agriculture, Fisheries and Food
Padfield established: a decision maker may enjoy a wide discretion, yet be under a legal duty to exercise it in certain circumstances.
this case concerned a statutory scheme to regulate a particular trade. to ensure the integrity of the scheme, parliament introduced a complaints process. a committee was established to to investigate such complaints but only had the power to hear complaints “if the Minister in any case so directs.”
A legitimate complaint was made but the Minister declined to refer it on to the committee for investigation because if he did it would expose his own failings and cause him significant political embarrassment.
this was successfully challenged - the Minister had abused the statutory power on two grounds:
1. Minister had acted on a legally irrelevant consideration
- Minister violated the statutory purpose for which the power had been given
despite the ostensibly unfettered nature of the power itself, the court had no difficulty in reading in those limitations
what dicta came out of Padfield
“The use of that adjective [unfettered], even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive. “
“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter if law for the court”
what is the significance of Padfield
when parliament confers a statutory power, it will confer it and then subject the exercise of that power to internal statutory controls.
A statute may say that X may reach a decision on X, Y, Z and any other matter that the decision maker considers relevant - this catch-all will be restrictively construed in the light of the statutory purpose and the reason why that statutory power was conferred
powers can also be restricted in other ways: by reference to the context of the decision making, context might invite limitations on the exercise of discretions e.g. the decision maker would have to have regard to the effect of decision making on sectional interests disproportionately affected in the context
what happened in the Huakina Development Trust v Waikato Valley Authority case
The High Court imported Maori spiritual values into the decision making of the Planning Tribunal (now Environment Court under the RMA).
An application had been made under the relevant act at the time for a water consent - the Tribunal upheld the application and granted the water consent.
Local Maori opposed, it would adversely effect their spiritual relationship with the waters of the region. The Planning Tribunal placed to one side what they were saying - the values were legally irrelevant.
Maori successfully reviewed the tribunal decision. The High Court ruled that in appropriate cases, Maori spiritual values may be a mandatory relevant consideration and the decision maker must be shown to have proper regard to the consideration. Extrinsic aids may be needed to ascertain what those spiritual values might be - further, maybe the court should look at Waitangi Tribunal interpretations in ascertaining values
what happened in Attorney-general v New Zealand Maori Council (radio frequencies)
this case was about the 4th Labour government’s (Lange) decision to privatise the radio frequencies.
The Maori Council intervened, under the Treaty of Waitangi Maori were entitled to be gifted some of those frequencies, particularly in Auckland and Wellington where there were large concentrations of young Maori (to protect the language - state obligation).
The promotion of the maori language and culture was a mandatory relevant consideration, hedging the exercise of the discretionary power.
The High Court granted an interim injunction to pause the sale process, which continued until the Waitangi Tribunal decision. The Waitangi Tribunal held that they should be made available to Auckland and Wellington.
The Minister had regard to the WT report and elected to go ahead and sell as he had intended to do.
Maori Council game back and challenged but the Minister had done all that he was required to do and the Court is only concerned with the decision making process not the merits of the decision itself
what did the CCSU case say about illegality as a ground of review
“A public authority must understand correctly the law that regulates its decision making power and must give effect to it”
illegality encompasses which three situations
- an abuse of discretionary power under the Wednesbury principle e.g. exercising a power for an improper purpose or failing to have regard to a mandatory relevant consideration or if the decision maker relies upon a legally irrelevant consideration
- abdicating a statutory discretionary power e.g. adopting a rigid rule of policy (negating the exercise of discretion - a decision maker cannot fall back on a blanket rule instead of deciding) or acting under dictation of another person or body
- committing a jurisdictional error in making findings of law or fact
what amounts to a clear abuse of discretionary power and what may be more nuanced
a decision maker that acts in bad faith/fraud/malice clearly amounts to an abuse of discretionary power.
a decision maker may set out in good faith and yet still abuse his/her discretionary power if the power is exercised for an improper purpose or on irrelevant grounds or without regard to relevant grounds which must be factored in to the exercise of discretion
what happened in Municipal Council of Sydney v Campbell
the local council had power to compulsorily acquire land under statute, which said it was to be done “for carrying out improvements.”
Clearly the Council exceeded its power because it compulsorily acquired land, but not for the purpose of carrying out improvements but rather for making a profit arising from a future increase in the land value.
Held to be an abuse of power.
what happened in Rowling v Takaro Properties
this illustrates the problematic nature of this interpretive exercise in ascertaining parliament’s purpose when not clearly set out in statute.
In 1975 a judicial review action was brought and in 1988 an action in tort for damages. they both concerned the Reserve Bank of New Zealand Act 1964. Both courts had to ascertain purposes for which it was enacted by construing the statute and each came to an opposite conclusion as to what the statutory purposes where.
where decision makers are given two separate powers, they must not?
merge those separately granted - the decision maker must chose the power under which it wishes to act and cannot act under two separate powers at the same time unless they are identical
what happened in James Aviation Ltd v Air Services Licensing Appeal Authority
the decision maker erred by merging two separate powers which had been granted separately. the Appeal Authority had two separate jurisdictions:
- to confirm, modify or reverse a decision of the licensing authority
- the power to direct the authority to reconsider the matter
they ordered the rehearing of an application but subject to that application in principle being granted, so had erred
what happened in the retirement villages association case
the legislation gave the responsible minister two options:
- if the industry came up with a draft code of practice, the Minister had the power to approve it
- or he could promulgate his own code of practice
the minister erred by approving a draft industry code but materially altering its terms, placing the cost of refurbishment on the retirement village.
the court held the minister had improperly merged two discrete powers - he could do either, not accept or rewrite
ulterior statutory purposes pursued by a decision maker _____ invalidate the exercise of a statutory power
may or may not
what happened in Attorney-General v Ireland
the court held that a statutory power may be exercised for a concurrent ulterior purpose, in addition to the lawful/authorised statutory purpose. ulterior purposes do not necessarily invalidate the decision making.
a court must identify the character or quality of the ulterior purpose and ask if it runs counter to or circumvents or undermines the mandated purpose. the court emphasised the fulfilment of the statutory purpose is paramount
DOC was authorised to set aside a parcel of land within the reserve in order to erect a building needed for administration of the reserve - but they set up buildings to administer all the reserves in the greater Auckland region. Ireland brought challenge saying DOC exceeded its lawful powers, but the CA said it was permissible - they had met the purpose so pursuing ulterior purposes was okay
decision makers will often develop policies to guide them in the exercise of their discretions, what do the courts think of this
courts often encourage - it is seen to promote the consistency of decision making, particularly where the decision maker has broad discretionary power. the caution is that any policy or guideline adopted must itself further the statutory purposes or at least be consonant with it
what happened in Pub Charity v Attorney-general
the decision maker adopted a policy rule which the HC held sought to substitute for the statutory criteria laid down. the policy was seen to trump what the statute provided, exposing the decision to challenge
what happened in Attorney-General v Unitec Institute of Technology
an application was made by Unitec to be accredited as a university and the Minister put it on indefinite hold because of a government policy not to create any new universities pending a tertiary education review.
the court upheld the deferring because the Minister was not handing down a binding decision, rather it was a decision whether or not to initiate a certain process.
how must a decision maker consider relevant and irrelevant considerations
a decision maker must not be influenced by legally irrelevant considerations and must fairly have regard to all legally relevant considerations (at lease where they are mandatory consideration)
what happened in Fiordland Venison v Minister of Agriculture
- statutory regulations which required the Minister to grant a deer processing/export licence once the Minister was satisfied as to certain matters
- Minister declined application made by having regard to potential adverse economic effect it would have on other stakeholders in the industry (existing licence holders)
- but this was not a listed criteria and this exposed the decision to challenge
- where an applicant succeeds on judicial review, they will usually quash the decision and remit it back to the decision maker to reconsider. Here the regulation imposed a duty on the Minister to give a licence if satisfied and all other listed criteria were satisfied so the CA declared the applicant was entitled to a licence
what happened in Wahrliche v Bate
- an application to the DC judge for a grant of legal aid, declined owing to the limited pool of legal aid monies available
- on review, this was an irrelevant consideration to the stated statutory test, whether a grant was “desirable in the interests of justice”
- The DC judge was acting in public interest, but that consideration is not relevant and won’t provide a defence
why is a decision maker not always bound by relevant considerations
because there are two classes - mandatory and permissive
what comments did Cooke J make in CREEDNZ about the distinction between mandatory and permissive relevant considerations
“it is only when a statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision”
“[The more] general and the more obviously important the consideration, the readier the court must be to hold that Parliament must have meant it to be taken into account”
only if parliament mandates a relevant consideration will?
a successful judicial review be found
does the decision maker have to take permissive relevant considerations
no - decision maker may or may not take into account depending on their inclination and judgment
JR will succeed or fail depending on hoe the court classifies what?
the relevant consideration - a matter of interpretation
where parliament confers powers to exercise discretion having regard to “any of the following matters”, the criteria is likely to be
permissive
where parliament confers powers to exercise discretion “having regard to the following matters”, the criteria is likely to be
mandatory
do mandatory considerations need always to be expressly listed in the statute conferring the power itself?
no, they can also arise by implication of the statutory scheme or the context of the decision making itself (having regard to the effect of the decision on sectional interests) as in Huakina and Radio Frequencies
the more comprehensive the listed criteria for decision making, the more likely the list will be construed as
exhaustive, and the more open ended the listed criteria the less likely they will be exhausted, making it more likely for implication of further relevant considerations
what does it mean where Parliament confers a statutory decision making power listing relevant considerations and the final one being “may have regard to any other matter that the decision maker considers relevant”
- where listed, matter will import additional relevant considerations
- this does not literally mean what it says, it cannot authorize reference to legally irrelevant matters
- to determine if legally relevant, one must have regard to the statutory purpose
- clearly some matters will be legally irrelevant
what happened in Howe v Keown
power may be drafted in such a way as to invite additional relevant considerations.
here the statutory power to appoint a person to a position - “best suited to the position”
this allowed the decision maker to appoint in a host of additional relevant considerations - permissive relevant considerations
how much mandatory relevant considerations be weighed
must be genuinely considered in the exercise of discretion - there must be due deliberation and openness of mind
what happened in NZ Fishing Industry Association Inc v Ministry of Agriculture and Fisheries
mandatory considerations “may not be rebuffed by a closed mind.”
weight to be given to a mandatory consideration is a matter always for the decision maker - not for the court on review to second guess the weight given so the court does not ask whether sufficient weight was given to a matter - as long as it was genuinely factored in thats the end of it
what happens when arguments of wrong weight are often raised by applicants, what happens to them
they are always rejected by the courts - this is a part of the discretionary decision making itself
what happened in Singh v Legal Aid Review Authority
arguments of wrong weight address “value judgments rather than questions of law.” second guessing would have the court intrude on the decision makers domain
how should decision makers go about implying mandatory considerations
decision makers must weigh mandatory considerations “openly and transparently or risk a finding of no weight” - but you can argue no weight because the decision maker failed to have regard
what happened in Leiataua v Minister of Immigration
“one cannot assume from the mere reference to a fact that the fact has been adequately considered”
the decision maker must show it has properly considered and weighed them in the exercise of discretion - they must genuinely and openly engage
a decision maker will be well advised to leave a paper trail to that effect showing they have done so
what happened in Ye v Minister of Immigration
exception to the basic principle that the weight to be given is for the decision maker not the court - where a mandatory consideration internalizes built in weight to itself
statute required the best interests of the child to be taken into account “as a primary consideration”
this internalised built in weight and the CA held the weight had to be appropriately assessed because Parliament had laid down what weight should be given, so the court had to ask what weight had been given
what are 3 miscellaneous points about the abuse of statutory power
- the grounds of invalidity merge
- leeway conceded to decision makers
- justified and true reasons for action
AND no public interest justification
what cases show that the grounds of invalidity merge
Associated Provincial Picture Houses v Wednesbury Corporation - the grounds tend not to be discrete, but they “run into one another”
Padfield v Minister of Agriculture Fisheries and Food - the Minister had acted for an improper statutory purpose but also acted upon a legally irrelevant consideration (these two aspects of abusive statutory power ran together)
what case illustrates when leeway is conceded to decision makers
Attorney-General v Ireland - the court held a decision maker may pursue more than one purpose. they must always pursue the authorised statutory purpose and so long as they do that there is nothing to prevent them going on and pursuing an additional unauthorised.
before ireland, the courts engaged in a problematic exercise because it was often apparent they had pursued more than one purpose so the courts looked to the predominant purpose. would the decision maker have handed down that decision but for that unauthorised purpose (but for test), no = decision was reviewable
what cases state there is no public interest justification
Laker Airways v Department of Trade - the public interest cannot override the statutory purpose.
Wahrlich v Bate - an application for legal aid was declined by the DC on the improper ground of because of considerable pressure on the limited legal aid funds available, when the statutory test was just whether a grant was desirable in the interests of justice
a decision maker invested with a discretion must not
- adopt a fixed rule or policy
2. surrender a discretion or act, particularly not under the dictation of another
what happened in R v London County Council; ex parte Corrie about fixed rules of policy
the council had a discretionary power to grant permits for the sale of literature in public parks during war time. they adopted a rule to grant no further permits.
in doing so, they would no longer exercise discretion to grant the power, it had abdicated its statutory powers and a mandamus writ was ordered ordering the exercise of public duty
what happened in R v Barry District Council; ex parte jones about fixed rules of policy
the council had a discretionary power to issue taxi cab licences. they imposed a policy to no longer issue any new licences. they were held to have abdicated statutory powers and mandamus was ordered
what happened in Ankers v Attorney-General about fixed rules of policy
in the modern (computer) age, decision makers must be wary of computerised systems.
obiter in this case: a decision may be challenged if it was made by a mechanical application of input data into a computer programme. This was because a computer programme doesn’t use discretion
what happened in Attorney-General ex rel Tilley v Wandsworth Borough Council about fixed rules of policy
if a decision maker does adopt a fixed rule of policy, it may be no answer that the decision maker followed a practice of allowing exceptions to it. fixed rule of policy is enough to expose a decision to challenge
what happened in Vickerman Fisheries v Attorney-General about fixed rules of policy
A minister was authorised to licence commercial fishers. The Minister imposed a moratorium that he would issue no further licences to commercial fishers because he wanted to conserve the fish stocks. this was generally supported in the industry.
it was successfully judicially reviewed and the Minister was held to have abdicated his discretion
what happened in Practical Shooting Institute (NZ) Inc v Commissioner of Police
The Commissioner had statutory discretion to grant import permits for military style semi-automatic fire arms. the commissioner said he would grant no further permits.
this was successfully judicially reviewed. the ban was a fixed rule of policy, which unlawfully fettered the commissioner’s discertion
do courts usually encourage or discourage broad policy guidlines
encourage, particularly where a broad discretionary power is granted, to promote consistency of decision making
what cautions are there to courts encouraging broad policy guidelines
- guidelines must not lapse into binding rules of application (overtaking the exercise of discretion)
- policy guidelines must themselves promote the authorised statutory purpose(s)
what happened in Findlay v Secretary of State for the Home Department regarding policy guidelines
the Minister manages the prison parole system and adopted a policy rule that for very serious offences early release would be granted only in exceptional circumstances. the House of Lords upheld the policy ruling - it fell short of an abdication because the Minister reserved himself some discretion to consider whether there were exceptional circumstances in the case infront of him. the lords were also influenced by the Minister being responsible to Parliament for the way he administered the system
how does Roncarelli v Duplessis illustrate rules around surrendering a discretion by acting under another’s dictation
the supreme court struck down the decision of a licensing commission because the commission had acted on the instruction of the Quebec provincial premier. the premier had taken exception to the plaintiff because he was a member of Jehovah’s Witnesses (discrimination) and instructed the commission to revoke the plaintiffs licece
how will courts read provisions in statutes which when read literally seem to subject decision makers to some other person’s instruction or command, e.g. subject “to the general direction and control of the Minister”
courts will often read down such provisions so as to preserve as much as possible an element of independent discretion
what happened in Social Security Commission v Macfarlane regarding surrendering discretion to another person
under statute the commission was to exercise powers “under the general direction and control of the Minister.” despite these words the court held that the Minister could not override the commission’s discretion
what happened in Elston v State Services Commission regarding surrendering discretion to another person
statute provided the decision maker was to act “independently.” the question was whether this precluded the decision maker from entering consultation.
what comes out of Associated Provincial Picture Houses v Wednesbury Corporation
Wednesbury unreasonableness implies something more than unreasonableness per se. it is something that takes the decision to the brink of and beyond the decision makers’ powers. courts have insisted that a decision be outrageous or perverse or absurd before intervening.
Lord Green: “a decision was unreasonable where it was so absurd that no sensible person could ever dream that it lay within the powers of the decision maker,” e.g. a red head teacher dismissed for her read here.
this was a very high threshold
Wednesburdy unreasonableness is a very high threshold, how did things start to change
the standard set was practically unobtainable. decision makers err from time to time but seldom so blatantly as required by this category of review as they are rational people.
some courts began lowering the standard of review to make it a more practical ground on which an applicant could sometimes succeed. the movement developed and by 1994 courts had sanctioned substantive unfairness as a legitimate and independent ground of review
what did Lord Diplock say in CCSU about when unreasonableness could be used
“[a decision is irrational] if it is so outrageous in its defiance of logic or of accepted standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”
what did the Thames Valley case do to change the ground of unreasonableness
- lowered threshold considerably to come very close to unreasonableness per se
“substantive unfairness was a legitimate ground of review. Its merit was that it allowed a measure of flexibility enabling redress for misuses of administrative authority which might otherwise go unchecked. its limits or categories would never be defined with exhaustive precision. however, it could not be suggested that the mere personal opinion of a judge that a decision was unfair would justify holding it invalid”
what are the two features of judicial review
- varying intensity
- contextual trappings
what is the spectrum between for unreasonableness
local authority rating cases at one end and decisions affecting basic human rights at the other
what happened in the woolworths case (how did the court approach it)
the court insisted on a very strict Wednesbury threshold. they empasised the democratic nature of the elected council which set the rating increase. they were accountable to the rate payers who elected them, so the courts would only take a once over look. the plaintiff had to show “something overwhelming”
how did the court approach the Thames Valley case
human rights decisions - courts tend to sanction substantive unfairness as a ground of review - a much lower threshold for intervention. this is like an american methodology of hard look for review where courts are much more ready to intervene
how did the court approach the Pharmac case
a strict wednesbury threshold for intervening was used because the decision was all about money/funding - the court would only intervene is something had gone demonstrably wrong. the court would use “case by case analysis”
what factors will influence the intensity of review under unreasonableness
- functions and status of the decision maker itself
- political or policy content of the impugned decision - the greater the content, the less likely the courts will be to intervene
- whether there is genuine scope for differing views. there may be a range of possible outcomes the decision maker might reasonably come to and in this case the courts will pull back and only intervene where something has gone demonstrably wrong - high threshold
- effect of the decision on individuals including the plaintiff e.g. Huakina
- overall justice of the case
- selective raising and lowering of the review threshold depends on the totality of these factors at hand
what happened in Electoral Commission v Cameron 1997
the advertising standards authority promulgates codes of practice within the advertising industry. having promulgated the code of practice, they set up a decision making body to hear complaints of breach of the code of practice. the electoral commission sought review because they had taken advertisements to better understand MMP and the board had upheld a complaint that the commission’s advertising was misleading.
CA held: this body was subject to judicial review. they emphasised the public regulatory role of the complaints body and the fact it was exercising a public power in essence. they also emphasised the nature of the complaints body - it was established without any statutory powers to constitute it. also the complaints board set its own jurisdictional boundaries.
the court noted this body did not fit within the conventional grounds of judicial review. for that reason, the court needed to adopt a more flexible approach to reviewing this particular decision maker. It would scrutinise the board’s powers broadly (intensive review) with a lower standard of unreasonableness than would be ordinarily required
what was affirmed in Lumber Specialties Ltd v Hodgson 2000
sliding threshold for unreasonableness is not fully accepted and established. Hammond J: “In New Zealand, it is now the position that there is no single standard of unreasonableness.”
what does procedural impropriety mean for decision makers
decision makers are bound by procedural requirements - they are usually referred to as the rules/principles of natural justice
what cases outline the duty to act fairly under procedural impropriety
Board of Education v Rice 1911 - “[It is] a duty lying on every one who decides anything [to] act in good faith and fairly listen to both sides.”
Fraser v State Services Commission - Fraser was ambushed and had no opportunity to rebut the contents of the damming report about her. the court is concerned with the procedures that leas to the decision making, which were unfair in this case
what are the 2 aspects to procedural impropriety
- audi alteram partem (hear the other side)
2. rule against bias
how many discrete principles are there for audi alteram partem are there
13 - we looking at 8
what does prior notice require
interested parties = persons who may be affected by a decision
if there is to be a hearing into the matter, any interested party must be given notice of that hearing and it must be adequate in the circumstances (depending on context).
if any allegations are to be made against a person, sufficient particulars must be given of those allegations in the notice to the interested party and there also must be sufficient time for the interested party to prepare a rebuttal
what happened in D v M and Board of Trustees of Auckland Grammar School 2003
D, a high school student, admitted smoking one cigarette on a school field trip. The headmaster M suspended D and sent a report to the board of trustees as required under the education act.
the board expelled the student because he was in continual disobedience of the school rules.
court held: the board had acted in breach of natural justice by not giving the student prior notice of what the headmaster was going to include in his report - he had included material relating to past breaches of the school rules and the pupil thought it was only the cigarette. the student was given no opportunity to address the allegations.
what is required by disclosure of relevant material
a duty of disclosure rests on all decision makers. all relevant information to decision making must be disclosed in advance of any hearing. this enables the interested party to challenge the contents of any report that might be compiled.
what happened in Daganayasi v Minister of Immigration
D was issued a deportation order. Under immigration legislation at the time, she could appeal to the responsible Minister on humanitarian grounds. She appealed on the ground that her child had a rare disease which needed specialist medical treatment available in NZ but not in the islands.
Minister refused the appeal on the basis of a medical referees report which suggested the child’s condition had improved.
D successfully challenged that decision. the Minister had failed the duty of disclosure. the report was also not supported by medical evidence and the referee said they had consulted the clinicians but hadn’t. the duty of disclosure if paramount so the content of reports can be challenged and materials corrected if needed
what is the right to a hearing under audi alterem partum
there is no automatic right to an oral hearing but an interested party has a right to submit written submission. that said, the requirements of fairness may import the right to an oral hearing
what happened in Osborn v Parole Board 2013
the UKSC said “decision makers may not dispense with oral hearings simply to save time, trouble and expense.”
a party must be heard if it was doubtful (any doubt whatsoever) whether the matter could be dealt with fairly on the papers
oral hearings promote respect for the decision making process and the requirements of fairness may require an oral hearing
what happened in Rose v Humbles 1972
an oral hearing must be conducted where a persons credibility or reputation is at stake.
this case concerned a tax objection - a tax payer had been levied a tax assessment and a tax payer objected to the assessment. the tax objection was determined without the tax payer being heard in person.
held: this was a breach of natural justice. the matter turns on the taxpayers credibility of whether they had disclosed all income or hidden some things from authorities. this could be determined only by hearing from the tax payer in person.
whether a hearing in person need be granted depends on what fairness requires in the context of all the factors in question - judicial review is entirely contextual
what is the right to legal representation
- no automatic right, but the requirements of fairness may import it
what did Lord Denning say in Pett v Grehound Racing Association Ltd about when the right to legal representation may be imported?
general right to legal representation where livelihood or reputation is at stake
what matters were listed to which a tribunal should have regard in determining whether to allow legal representation in Ex Parte Tarrante
- seriousness of the charge (if any) and of the potential penalty
- the question whether points of law are likely to arise
- the question whether procedural difficulties are likely to arise
- the desirability of a prompt determination and
- the overall need for fairness as between the parties
what is the right for the decision maker having to hear the case
- one who decides must here
a statute sometimes will prescribe the membership of the deciding body. in these cases the decision must be by all members and the presence of some unauthorised person may expose the decision to challenge, though this is not always fatal
what was held in Wislang about a decision maker to hear the case
held not to be a breach of natural justice if this unauthorised person was present for recording submissions or otherwise discharging secretarial functions. if they make a pre-hearing report, this must be sufficiently full and comprehensive so that all members of the deciding body may decide
what was the decision about the prehearing report made in Jeffs v New Zealand Dairy Board
it was not sufficiently full and comprehensive
the deciding body established a subcommittee to prepare a prehearing report for the board, but the subcommittee merely summarised the submissions made to it, which was not a full and comprehensive report
this was a breach of natural justice because deciding body had not heard
what was the decision in Videbeck v Auckland City Council about the councils report
the council official prepared a report, which made certain and very clear and definite recommendations as to what the outcome should be. this was fatal as the deciding body had just rubber stamped the report and recommendation and had not heard before deciding
does having a legal advisor cause issues to the right to be heard
it is not a breach of natural justice for a legal advisor to sit with an adjudicating body when it makes its decision - they can assist the decision maker. but a caution is that the advisor must not enter into the deliberations - see Rich v Christchurch Girls’ High School Board of Governors
Murdoch v NZ Milk Board - the court may find a breach if the advisors mere presence conveys an appearance that they influenced the discussions
what is the audi alteram partem requirement for probative evidence
Ex parte Morre - a decision maker “must not spin a coin or consult an astrologer.” All decisions must be rationally supported. If a decision is based on ‘speculative reasoning’ this will expose the decision making to challenge
what is required under warnings as to adverse credibility findings
a duty lies on decision makers to forewarn parties of adverse findings they are proposing to make/hand down. a finding may not impugn reputation of credibility or effect ones livelihood/property without the party having the opportunity to respond, which they can only do if forewanred
what was required in Khalon v Attorney-General
need to warn is an elementary requirement of fairness. key elements of this duty to forewarn “are surprise and potential prejudice”
what happened in Re Erebes Royal Commission
Mahon J was appointed as royal commissioner and was held to have breached the principles of natural justice because he made certain unannounced findings against top airline officials. he made findings of misconduct that they had entered into a predetermined plan of deception and an orchestrated litany of lies with no chance for them to respond.
the duty to forewarn arises where the risk of adverse findings is neither implicit in the nature of the inquiry nor obvious from the conduct of the hearing
what is the duty to provide reasons
no automatic right, but the duty can arise if the requirements of fairness import it in the context.
courts and decision makers expose themselves if they fail to give good reasons. a refusal to provide reasons may invite adverse inferences
Breen v Amalgamated Engineering Union - “the giving of reasons is one of the fundamentals of good administration”
what did the court say about the duty to provide reasons in R v Awatere
affirmed the proposition that there is no general obligation to provide reasons, which places law out of step with modern public expectations of transparency and accountability in decision making. “must always be good judicial practice to provide a reasoned decision”
what was said about the duty to provide reasons
Lewis sailed his yacht to Auckland to watch the America’s Cup and brought weed. He was charged with possession and offered to make a hefty donation to charity for name suppression, which the DC judge granted. HIs decision was in breach of principles of natural justice so was a reviewable error of law.
Elias CJ’s 3 overriding principles why judges should provide reasons for their decisions:
- need to uphold open justice - this principle is foundational, essence of the justice system
- need to protect against judges giving wrong/arbitrary/inconsistent decisions
- need to provide a basis on which the lawfulness of decisions can be assessed (in applications for JR in particular) - if reasons aren’t given, we don’t know how the decision was reached
what happened in Jones v Attorney-General
Jones was pulled over, police officer said he had crossed the white line and he alleged he was only stopped because of jelousy driving his flash car. he assumed that reasons need to be given for the exercise of statutory powers that interfere with personal liberty. to give a false reason would be deceitful, you must give the actual reason for the action
what happened in Baker v Canada
the SCC established that a general duty to supply reasons imposed a flexible standard that left leeway for decision makers. in this immigration case, a junior immigration officer discharged the duty to provide reasons by writing informal notes - satisfied the duty to give reasons.
even box ticking might satisfy the Baker duty because the content of this duty varies with the decision making. this was low level decision making, so a few informal notes were fine
what are the two limbs of the rule against bias
presumptive bias and apparent bias
what is NZ moving towards with the limbs of the rules against bias
conflating the two limbs
the rule against bias disqualifies decision-makers on either of two grounds, what are they?
for direct pecuniary interest (presumptive bias)
when there arises a manifest likelihood or danger of actual bias influencing the proceedings or decision (apparent bias)
what is the presumptive bias limb of the rule against bias
at common law, presumptive bias imposes automatic disqualification - no one may judge his or her own case. If a decision-maker has a pecuniary interest in the case, or an interest capable of a monetary value (e.g. shares in a company(, then the law raises a conclusive presumption of bias. bias is presumed from the mere existence of the interest, and the decision-maker is disqualified. The rule is a strict one. Only where the interest is trifling or minimal, that it could not conceivable exert influence, or where the decision-maker is oblivious to its existence, will the rule give way
what happened in Dimes v Proprietors of Grand Junction Canal - presumptive bias case
the presiding judge was disqualified because he held a substantial shareholding in the defendant company. a direct pecuniary interest had been established, so he was automatically disqualified for adjudicating and there was no need to establish the likelihood of actual bias
what is the apparent bias limb of the rule against bias
the ground of disqualification is established when a person manifests a predisposition towards a particular result. it raises no irrebuttable presumption of disqualification but turns on outward appearances and overall evaluation: where there arises a reasonable apprehension of bias influencing the outcome. apparent bias may emerge from:
a persons overall demeanour and disposition
statements revealing prior judgment
outward personal favour or disfavour towards a party or witness
a relationship the decision-maker has to a party or witness
apparent conflicts of interest howsoever arising
the courts apply different standards of impartiality, depending on the decision maker, how so?
stricter standards are demanded of courts of law than public decision-makers. for example, Royal Commissions are expected to take freer initiative (being more inquisitorial) than courts in questioning and examining witnesses. moreover, domestic decision making tribunals, unlike courts, may not be expected to shut out entirely personal animus or discount entirely pre-existing relationships
the courts have moved award from using different standards of impartiality to decide apparent bias cases. what is the current test
before Saxmere, the courts adopted a subjective test as to whether or not a decision maker may have been biased, asking if that gave rise to a reasonable apprehension of bias. this threshold was too high as it is the public perception that matters because this rule against bias is aimed to promote public confidence in the administration of justice and integrity of decision making. instead, not we look through the lend of the fair minded lay observer and what they’d think
what was established in Saxmere
a judge or decision maker is disqualified if “a fair minded lay observer might reasonably apprehend that the judge or decision maker might not bring an impartial mind to the question before the judge or decision maker”
how did saxmere describe the fair minded lay observer
fair minded lay observer = intelligent, can view matters objectively, non-lawyer, reasonable understanding of judicial system and public decision making, neither unduly sensitive not suspicious but not complacent about what might influence a judge or decision maker, reasonably meticulous, well informed, takes a balanced approach to allegations of bias and so will place the allegation into its full social context
what are the 4 features of the apparent bias fair minded lay observer test from Saxmere
causal link between the potentially disqualifying interest and the apprehension of bias
public perception, not the actuality of bias
test is uniformly adopted in common law jurisdictions so NZ should come on board
test properly takes account of public perception and the need to maintain public confidence in the judicial system or public decision making
what happened in Muir v Commissioner of Inland Revenue
the CA clearly supported following the Australian lead in conflating the two limbs of the bias rule because of a need for simplicity. this would not substantively alter the law, rather only simplify it
“if a judge has a direct pecuniary interest of anything more than the most minimal character, it is hard to see how a reasonable observer would not consider that to be ‘bias.’ Hence no harm, and a great deal of good, in terms of the understandability of the law, would be done by a unitary principle”
what did the judges in Saxmere say about conflating the two limbs of the rule against bias
Tipping J: there should be no difference between the two limbs.
McGrath J: agreed and recommended that the apparent bias test should apply to all allegations of bias.
reasons: simplification and rationalisation of the law
“There should no longer be any distinction between cases in which the allegation of apparent bias rests on financial interests as against those involving other matters. The same test should apply” (Tipping J)
what is the doctrine of legitimate expectation
Attorney-General (Hong Kong) v Ng Yuen Shiu - “when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and implement its promise, so long as it does not interfere with its statutory duty”
what 3 things must be established by an applicant for the doctrine of legitimate expectation to apply
Green v Racing Integrity Unit Ltd
a commitment by way of a promise or settled practice or policy to act in a certain way
legitimate or reasonable reliance on the promise or commitment; and
the appropriate remedy (if any) that should be granted for breach of the legitimate expectation
is substantive relief allowed under the doctrine of legitimate expectation in NZ
Green v Racing Integrity Unit Ltd - substantive relief is “rarely, if ever, granted.”
what happened in Ex parte Coughlan (ENG)
a government Minister made a promise to a small number of persons who were housed in a nursing facility run by the NHS that that would be their home for life. later the government decided to close down the facility and the persons affected alleged breach of substantive legitimate expectation.
held: they were entitled to what the government had promised. the court ordered the substantive outcome of the promise that had been made. In NZ, that relief would not be granted, they would instead provide a procedural remedy e.g. reconsider decision in light of promise made
what is the legal foundation for a ruling under the doctrine of legitimate expectation in NZ
illegality - failure to have regard to a mandatory relevant consideration or having regard to a legally irrelevant consideration
