Judicial Review Flashcards
What does Justice Cook say about why we have judicial review?
Decision-makers should make decisions fairly, reasonably, and within the law. Judicial review has the Court look at these and ensure they are being followed. If the decisions are not one of those, then the Court is able to attempt to find a remedy.
Ultra Vires
A decision-maker is acting beyond their power, beyond the law, they are acting beyond legal power.
What are the two principles of Judicial review?
- Rule of Law
- Parliamentary sovereignty
How does JR support the rule of law and parliamentary sovereignty?
Judicial review ensures that people in power are acting under the rule of law, but it also helps to keep a check on Parliament’s power giving.
Does Judicial review focus on process or outcome?
Process - It looks at how the decision was made and whether there was legal authority for it to occur.
Why do courts not focus on the outcome?
This is not an appeal. If the Court were to intervene with an opinion, then it is broaching on Parliamentary sovereignty.
Does JR have clear jurisdiction?
Nope, it’s all a bit fuzzy.
Is all public power exercised by the executive?
No
Are all powers exercised by the executive public powers?
No
What is an example of public power?
Police arresting someone
What is an example of the executive exercising non public powers?
Sometimes there are contractual obligations on the Executive to exercise power. Teachers are paid by the Ministry of Education who are using power, this however is not public power and is instead contractual.
Are all limits on public power legal limits? expand.
No, there are limits not grounded within law.
Soft law items (e.g. the Cabinet Manual) are created strictly to limit the powers of the Executive.
Convention and politics also act as limits.
What is the main point to take from the Judicial Review Procedure Act 2016?
All exercises of statutory power are amenable to Judicial Review.
What is a Statutory Power of Decision?
Any statute that gives someone the power to alter the rights, powers, privileges, immunities, duties, or liabilities of any person.
Where does the executive get their power?
- Statutory power.
- Prerogative power.
- Third source.
What questions do you ask under “Is the Decision Theoretically Amenable to judicial Review?”
- Is it statutory?
- Is it prerogative power?
- Is it 3rd source?
What questions do you ask under “Is the Decision Justiciable?”
- Is it public in nature?
- Does it involve issues the Court can’t/shouldn’t resolve.
What do we mean by is a decision justiciable?
Effectively, is this something the court should look at. Think Justice Able?
Bayline v Secretary of Education 2007 (High Court)
Facts:
- Minister has power to choose which bus company could have which route.
- Bayline has a lower rate than Bethlehem.
- Bethlehem won the route.
- Bayline sought judicial review.
Power:
- s 139D Education Act 1989
Is the Decision Theoretically Amenable to Judicial Review?
- Yes, statutory power.
Is the Decision Justiciable?
- No
- Not a public decision
- A quintessential low level contracting decision - no public consequences at all.
Decision
- Non justiciable as it lacked the public effect.
- A good example of where a decision of the Executive is far too private for it to have any public effect.
Curtis v Minister of Defence [2002] (CA)
Facts:
- Government decided to disband the air wing.
- Curtis said that this was ultra vires:
- If you take the planes with guns out of the air force, then you no longer have an Air Force.
- This would be an erasure of a branch of the Ministry.
Issue:
If you have the power to control, that does not mean you have the ability to erase.
Is this Decision Theoretically Amenable to Judicial Review?
Yes, statutory power.
Is the Decision Justiciable?
- No
- Too high level policy decision
- It is a very public issue
Decision
- This is a non-justiciable issue
- No satisfactory legal yardstick
- Question is political not legal
What is the idea of the goldilocks zone?
There are cases that are far too private and far too public. In between these two extremes is the perfect zone for Judicial Review.
The Courts often prefer a more central outlook when it comes to justiciability.
Why are too private matters not justiciable?
If every decision by the Government was amenable to Judicial Review, the processes would slow down the everyday workings of the country - commercial sense.
The Courts have a process to deal with private matters - property and contract law.
Judicial Review is meant for public matters by the judiciary. Why should the Government need to be fairer in private matters than a private organisation?
Why are too public matters not justiciable?
Courts should not decide political issues as they need to be impartial to Parliament. The Court is supervising the use of public power to ensure it stays within its legal limits. A very political issue is no longer contained within law and therefore has no legal limitations.
What is the situation regarding state owned enterprises?
Decisions by state-owned enterprises are private businesses that are owned by the Government. Are these public enough and close enough to the Executive that they are amenable to Judicial Review?
When may private decisions become public matters? Example of Spark.
Decisions by private actors can have massive consequences. Spark deciding to stop providing broadband to the South Island, would definitely be a private decision, however this would be a large use of public power. Google and Meta have revenues far greater than the domestic profit of New Zealand, this cannot be left as a decision that is - private companies only deal privately. Google and Meta would need to be held to Judicial Review as well.
What is section 5 of the Judicial Review Procedure Act?
(2)(b) deems any statutory power by any constitution or body corporate. Therefore all private corporations are theoretically amenable to Judicial Review.
???
Key Public/Private Cases on Theoretically Amenable?
Bayline, Curtis, and Hopper.
All theoretically amenable to review as they were exercises of statutory powers.
Key Public/Private Cases on Justiciability?
Bayline (too private) and Curtis (too public).
Hopper v North Shore Aero Club Inc 2006 (CA)
Facts:
- Mr Hopper wants to land and store his experimental aircraft at the aero club.
- Request denied.
Theoretically Amenable to Judicial Review?
The incorporated classifies this as a body corporate, thus is theoretically amenable to Judicial Review.
Justiciable?
- This decision is not public as no other person is affected.
- The decision of a private body is likely not amenable to review.
- There is no remedy within public law.
What is Locus Standi?
The Ability to Bring Judicial Review to Action
When can you bring judicial review?
- If you are directly affected, then you have standing to bring it to Judicial Review.
- If you are not, but it is of very high national importance, you probably have standing to bring it to Judicial Review.
Why is having standing important? (not everyone able to bring JR)
Stopping floodgates and extrodinate court fees, resources and delays.
Finnigan
Facts:
All Blacks tour in South Africa during the apartheid regime. The Rugby Football union is a private organisation.
Finnigan and friend challenged the decision.
Court of Appeal:
The decision is one of national importance. Finnigan and Co are allowed the standing to bring this to Judicial Review.
Historical Relevance:
This case opened the floodgates, allowing someone to seek Judicial Review when it is of great national importance.
What does Finnigan say about standing?
Allows someone to seek Judicial Review when the decision is of great national importance. Pretty much always have standing.
Great Christchurch Buildings Trust v Church Property Trustees 2012 (HC)
Facts:
CPT decided to demolish the cathedral.
GCBT take the decision to Judicial Review.
No one in GCBT were members of the Anglican church. They liked to look at it while walking through Christchurch.
High Court:
Standing granted.
Judicial Review Decision:
GCBT lost the Judicial Review as CPT were forced to make a decision and did not have the funds to make repairs - no point.
Historical Relevance:
To have standing, you must be directly affected, unless the decision is one of sufficient public importance.
What are the heads of judicial review?
- Illegality
- Procedural impropriety
- Unreasonableness
Why are there three categories?
They are a way of categorising how and why the line was crossed for the decision to get to Judicial Review.
Why do we have illegality?
A statute will never give a Minister / official unlimited power. There will always be conditions/terms, allowing Judicial Review to see when a person has exceeded their power.
Why do we have Procedural Impropriety?
Was the process taken fair? Natural justice?
Why do we have Unreasonableness?
The only head not about process, it looks at the outcome and decides whether or not it is good.
What are the two ways illegality arises?
Decision makers going beyond their allocated power or an error of law. (These are decided and discussed differently from one another).
In essence, illegality is about instructions from parliament that any decision maker must follow.
What is the deal with intention in illegality?
Intention is Irrelevant in Illegality.
Intention generally has no ground on illegality, if they are acting outside of the law they are acting outside of the law.
What are the categories under illegality?
- Improper Purpose
- Error of Law
- Irrelevant considerations
When is a decision maker exceeding their power for an improper purpose?
When the decision maker made the decision exceeding what Parliament intended for an improper purpose. Parliament grants powers with strict limits, any decision made outside of statute comes under this.
Cases on improper purpose
- Back Country Hellicopters v Minister of Conservation 2013 HC
Cases on Irrelevant considerations
- CREEDNZ
- Back Country Hellicopters
Cases on error of law
- Daganayasi
What does Back Country Hellicopters say about improper purpose?
The existence of a collateral purpose does not make a decision invalid so long as the main purpose prevails.
It does not matter that parliament did not explicitly endorse a purpose. Minister still gave a permit, just not the full permit requested.
What does Back Country Hellicopters say about irrelevant considerations?
Ok to consider other things so long as the additional objectives do not overthrow or contradict the primary objective.
Generally all good as long as primary avenue is still alive.
What does CREEDNZ say about irrelevant considerations?
Not enough that the consideration is something someone should take into account; decision maker only has to take into account required considerations.
What does Daganyasi say about errors of law?
- Errors of law are a ground for relief.
- The minister should bear the responsibility for getting the best most up to date advice / information.
What are the types of considerations?
Mandatory Considerations - failure to consider = breach of statute.
Permissible Considerations - strong emphasis to consider but not necessary.
Irrelevant Considerations - outside scope set out by parliament, subverts expectation of parliament. (Act states nothing about the consideration).
What are the categories under procedural impropriety?
- Natural Justice
- Predetermination/ bias
What is procedural impropriety talking about?
Fairness in the process of the decision.
What is the difference Between illegality and Procedural Impropriety?
Illegality comes from statute, procedural impropriety is largely examined within the common law.
Is statutory power unconditional?
No. There will always be conditions and strings attached. A statute might give some power to a decision-maker, the court after the fact will say they have extra duties or obligations that they needed to meet.
What is natural justice essentially?
Duties / Obligations the Court Imposes After Decision.
Fair process.
What are the three obligations under natural justice?
Statute
- Statute says a decision maker must follow a process, the court will ensure that process was correctly followed.
Legitimate Expectation
- Legitimate expectation can apply to a process but not an outcome. Must be genuine and from previous assurances or regular practice.
Consultation
- In a given context, certain people should need to be consulted.
What does Daganayasi v Minister of Immigration [1980] (CA) say about natural justice?
Court can read in natural justice requirements but only if statute is silent on the requirements
Deporting Miss Daganayasi would have an unjust or unduly harsh humanitarian circumstance.
Miss Daganayasi should have neem consulted and sent the report.
What does CREEDNZ v Governor-General [1981] say about natural justice?
CREEDNZ’s argument falls short as it goes directly against the intended purpose of the Act. Reading in a duty to consult would go against/frustrate the statute’s purpose of no need to consult.
The impact would have only had them loose a say at this stage; unlike the decision in Daganayasi where she was deported and stripped of rights.
What does McGrath v Minister of Justice [2014] say about natural justice?
McGrath already had a chance to respond (knew everything on the report anyway).
Cases about Natural justice?
Daganayasi v Minister of Immigration [1980] (CA)
CREEDNZ v Governor-General [1981]
McGrath v Minister of Justice [2014]
Cases about pre-determination/bias?
CREEDNZ v Governor-General [1981]
McGrath v Minister of Justice [2014]
What does McGrath v Minister of Justice [2014] say about pre-determination / bias?
Not satisfied a reasonable person would think there was any apparent bias due to family friend situation
Unlikely to bring about “feared deviation”
Court argued that depending on the decision maker, a different level of impartiality would be required for it to be unfair.
- A judge should have a lot of impartiality, a Minister, due to their political nature, will not be impartial.
What does CREEDNZ v Governor-General [1981] say about pre-determination / bias?
Minister not closed minded
?????
What is the head of Unreasonableness?
Reasonableness focuses on the outcome of a decision and decides whether that outcome is a reasonable one.
What are three things to know about unreasonableness?
- The head is concerned with the outcome of a decision making process.
- Because of this focus, there is a risk that the court considers the merits of a decision.
- The courts have said that the test of reasonableness is very high.
What are the cases for unreasonableness?
Hauraki
Students for Climate Change Solutions
Back Country Helicopters
What is the Wednesbury Test for Unreasonableness?
An unreasonable decision that is so unreasonable that a decision maker should have never made it to begin with, allows for the courts to intervene in the decision. The test was extremely high and it was never used as a ground of review, likely because the test was far too high and therefore there is no point in attempting.
What is the historical relevance of Wednesbury?
The courts can only intervene when there is a decision that is so unreasonable – this must be something so overwhelmingly unreasonable.
What does Hauraki Climate Action Inc v Thames-Coromandel DC [2020] (HC) say about unreasonableness?
The impact of climate change is similar to that of a violation to human rights. Therefore, the bar for unreasonableness should be lower as it has a greater effect.
Under Hauraki which things increase / decrease intensity of review?
Increases intensity of review:
- decision maker has a regulatory / quasi-judicial function.
- decision is a simple application of legal principles.
- impact of decision involves individual human rights.
Decreases intensity of review:
- decision maker democratically elected / politically accountable.
- decision is of high policy value.
- impact of the decision is widespread / only surrounding financial consequences.
Example: Woolworths.
What does Students for Climate Change Solutions say about unreasonableness?
Degree of scrutiny should not alter with every case - disagrees with Hauraki
How are JR remedies different to contract remedies?
They do not have damages and are discretionary.
What does McGrath say about unreasonableness?
What are the two key things in JR remedies?
- Damages are not available in judicial review proceedings.
- Remedies in Judicial review are discretionary
- presumption that remedy will follow a successful application, but no guarantee.
Why are there no damages?
JR focus’ on ensuring the decision makers are acting within their decision making power. DOES NOT focus on negative experiences of the people coming to court.
Why are the remedies discretionary?
JR not about gaining an advantage, but holding decision makers accountable.
Decisions usually impact whole industries, to give remedies to everyone would be unrealistic.
Most JR situations are an honest and reasonable mistake by the decision maker, charging the Government for this would be unfair.
What is Secondary Legislation/Delegated Legislation?
Legislation that is made by someone other than Parliament, it is always authorised by Parliament through an Act.
In the act of delegation, it relinquishes responsibility and power from Parliament.
What are the JR remedies?
Certiorari
- quash decision
Mandamus
- order to remake decision
Prohibition
- decision maker cannot make decision again
Injunction
- prevents decision from being made
Declaration
- ruling that decision is unlawful
What are the Key Points of Delegated Legislation?
Delegated legislation takes many forms.
Delegated legislation relieves pressure off of Parliament.
Delegated legislation requires there to be oversight, as it is not created by parliament, only authorised.
What are the types of delegated legislation?
- Order in Council
- Regulations
- Bylaws
What is an order in council?
An order in council is a document made by the Governor General when in the Executive Council.
- CREEDNZ
What is a regulation?
Regulations are rules made under the authority of an Act, usually by The Executive Ministers (but can also be made by other entities).
What is a bylaw?
Bylaws are made by councils rather than Governments, they only affect the specific area under that authority’s control.
Why is delegated legislation important in emergencies?
Delegated legislation can be made and implemented overnight, whereas Parliament only sits three times a week. In times of emergency, delegated legislation can allow responses to occur when primary legislation would require several readings.
What is parliament’s role in delegated legislation?
Parliament can strike down any piece of delegated legislation they wish. They do this under the Legislation Act 2019 s 114.
All delegated legislation needs to go to the House to be regulated. Parliament does not have time to make the legislation, but can check to see whether it should be implemented.
What is the Regulations Review Committee?
If as a citizen, you think a piece of delegated legislation has been implemented when it should not have (when Parliament would not have agreed) you can go to the committee to have it investigated.
This causes Parliament to take a closer look. Although parliament looks at all delegated legislation, some are looked at more thoroughly than others, mistakes can be missed.
Can delegated legislation be subject to judicial review?
Yes. It is all theoretically amenable to review by virtue ofbeing a type of legislation.
What are the Judicial Review Grounds for Delegated Legislation?
- repugnancy
- uncertainty
- presumption of interpretation
These mimic the same grounds as decision-making.
What is the ground of repugnancy?
It must align with the Act which enabled the party to make the legislation.
General Law = Delegated legislation needs to align with anything that Parliament has created in the past.
What is the ground of uncertainty?
Obscurity, vagueness, open-ended, discretion terms found within the regulation, order, or bylaw.
What is the ground of presumption of interpretation?
- Unable to imply tax.
- No prohibition can be crossed by delegated legislation.
- There is a presumption of validity.
New Zealand Council of Licensed Firearm Owners v Minister of Police [2020] - Facts?
Following the mosque shootings in Christchurch 2019.
Within a week there was a ban on certain types of firearms, this also banned certain types of ammunition.
This implemented a gun buyback scheme, however there was no ammunition buy back scheme. This was made through an order in council.
Issue = Did the Governor-General’s ammunition declaration follow the correct process that it should have?
What did New Zealand Council of Licensed Firearm Owners v Minister of Police [2020] decide?
The entire case was dismissed, as the statute empowering the Governor-General to make the decision had not been breached and the regulation was therefore valid.
Taylor v CE Department of Corrections [2014]
Facts:
- Smoking was very popular in prison
- Auckland prison manager bans smoking within the prison
- Taylor takes a case to court
Decision:
- The bylaw made by the prison manager was not acceptable and the delegated legislation was removed.
- It contradicted the Smoke Free Environment Act as well as many other pieces of legislation.
- The prison manager does not have the ability to, even under the Act he originally created the bylaw from, rule out smoking from within the prison.
Brook Valley Community Group Inc v Trustee of Brook Waimarama Sanctuary Trust [2018]
Facts:
- The sanctuary wanted to drop a bunch of poison - stronger and longer than 1080.
- A community group thought this was wrong and not permitted under RMA 1991 s 360(1)(h).
- The Act is trying to capture that you can make regulations without the need for resource consent. Only be discharged if they want to get rid of pests, and if they are a sanctuary.
Decision:
- The RMA does not grant a right for the un-consulted distribution of the poison, however the Court does not want to read in a new term.
- It is clear the reason the regulations had been made, and therefore the administering of the poison is legal.
