Judicial Review Flashcards
What is judicial review?
Mechanism by which the courts ensure decision-makers are acting within ‘the four corners’ of this legislative grant of power.
Upholds 2 constitutional principles: Rule of law & parliamentary supremacy.
How does judicial review limit parliamentary supremacy?
Assesses legality of laws, government actions. Courts can interpret legislation, ensuring compliance with constitutional or human rights principles, striking down actions that exceed legal authority ensuring parliament and the executive operate within legal boundaries.
JRs origin and development occurd through what?
Common law
What does JR focus on?
the process that decision-makers go through when making a decision, as opposed to the substance of the subsequent decision.
How do you seek judicial review?
The decision must be theoretically amenable to review.
The issue must be justiciable.
The plaintiff must have standing.
Following there are 3 heads of review - theres are overarching categories of ways a court may determine a decision to be ultra vires.
What are the heads of review?
Illegality, procedural impropriety, and unreasonableness
when else can a decision be ultra vires?
If the empowering legislation gives rise to ToW obligations that aren’t complied with.
To be reviewable, a decision must first be….
Theoretically amenable to review. (In the theoretical jurisdiction of the courts = very broad) - (Can deal with it in one sentence)
S 4 & 5 of the JRPA 2016 - That a decision is theoretically amenable to review if…
That a decision is theoretically amenable to review if:
1. the pwr to make the decision is conferred by: an act, or the constitution, rules or bylaws or a body corporate or incorporation - Hopper
2. AND, the decision affects someone in some way (affects their rights/powers/privileges/etc)
For a decision to be justiciable it must…
Be pubic in nature and not invlove issues which the court cannot/shouldn’t resolve
Public in nature?
- How many people are affected by the decision?
- to what extent it affects them & their rights
Bayline Group v Secretary of Education [2007]
- Bayline = bus charter operator.
- Competed for a govt tender to supply bus services with another company (Bethlehem) and lost.
- Bethlehem chosen to keep them in bsns. (if Beth went out of bsns, bayline would be the sole operator in the area, which is commercially undesirable.
HC decision:
- Not justiciable because it was a low level contracting decision, that was not sufficiently public in nature.
- For contracting decisions to be subject to JR, there must be a specific 204 element beyond the fact the body is exercising a stat power to contract. Here there wasn’t. The public would still essentially have the same bus service - they wouldnt be affected.
Key takeaway: Decision wasn’t public enough to be justiciable as it was a low-level one-off contracting decision w/ no wider policy content.
Hopper v North shore Aero Club Inc [2007]
- H wanted to land plane at AC but wasn’t given permission
CA: decision is not justiciable as not sufficiently public - Was a private decision minorly affecting a single individual.
- Club committee was not exercising a quasi-public function. it didnt breach natural justice.
In the absence of both, its doubtful a decision of private body will be amenable to review.
Key:
- Decision was not public enough to be justiciable, was a private internal decision.
Involve issues the court cannot/should not resolve?
A decision will not be justiciable if it concerns an issue that is too political, as this takes the matter outside of the constitutional role of the courts - political issues are for parliament.
