Judicial Review

Question 1

What needs to be satisfied under “is the decision amenable?”

Answer 1

The power under the act needs to be a statutory power of decision and that is amenable because of the Judicial Review Procedure Act.

Question 2

What needs to be satisfied under “is the decision justiciable?”

Answer 2

1. Legal yardstick
   (lawfulness can be assessed)
2. Public decision
   (not policy based and needs to have
   an impact on the public)
   § Bayline
   § Curtis
   Hopper (e.g. of justiciable private decision)
3. Standing
   (person applying for the review
   needs to be effected by the decision
   which is basically everyone CHCH
   trust case)

Question 3

What are the grounds of review

Answer 3

Illegality, procedural impropriety and unreasonableness

Question 4

What is illegality?

Answer 4

1. Was the relevant legislation followed?
2. Did they pursue an improper purpose?
3. Were all relevant consideration consideration taken into account or were they irrelevant?
4. Was the decision ultra vires

Question 5

What is procedural impropriety/natural justice?

Answer 5

1. Audi alteram partum (right to be heard)
2. Was the decision maker biassed

These issues concern natural justice

Question 6

What is unreasonableness?

Answer 6

Was the decision so unreasonable that no reasonable decision maker would make it? Lower threshold for cases that concern humans rights and climate change

Question 7

What remedies are available if the review is successful?

Answer 7

Mandamus: positive - makes decision maker do what they should be doing

Prohibition: stops decision maker doing something unlawful

Certiorari: gets rid of the decision

Question 8

What limits are on remedies?

Answer 8

All remedies are discretionary so you may get nothing

Won’t be granted if it will cause administrative difficulties

Won’t be granted if the remedy serves no purpose

Won’t be granted if there has been a long delay

Question 9

What is improper purpose?

Answer 9

When the decision maker was focusing on something that was contrary to the purpose assigned by parliament.

Question 10

When does ultra vires apply?

Answer 10

Under the head lawfulness, when a decision it outside of the scope of the delegated power. Applies for delegated legislation mainly.

Question 11

Why is ultra vires a rule?

Answer 11

Parliamentary supremacy

Question 12

What is the test for bias

Answer 12

A sliding threshold test. Bias is allowed more for Ministers meaning actual bias is needed. Bias is not allowed for judges meaning perceived bias is enough.

Question 13

What happens if natural justice is threatened?

Answer 13

Natural justice means an individuals human rights are threatened and means the threshold for bias and audi alteram partum is lowered.

Question 14

What are the different cases and tests for unreasonableness?

Answer 14

Wednesbury unreasonableness: needs to be very unreasonable

Hauraki and Students for Climate Change: lower threshold when natural justice is threatened and that can be either individual rights or climate change.

Question 15

What did BC Helicopters say on improper purpose?

Answer 15

Did not succeed as a political purpose does not matter if the act is followed. Having a collateral purpose is okay until it is pursued contrary to the act

Question 16

What did CreedNZ say about relevancy of considerations?

Answer 16

Relevant considerations are the ones the act says must be considered.

Question 17

What is error of law?

Answer 17

When the legislation is not followed properly

Question 18

What did CreedNZ say about audi alteram partum?

Answer 18

The purpose of the Act was to fast-track so a right to a hearing would be contrary to that

Question 19

What did Daganayasi say about audi alteram partum?

Answer 19

Daganayasi had the right to be heard as her individual rights and natural justice were at risk

Question 20

When to consider bias and when to consider pre-determination

Answer 20

Bias is more a standard to be applied to judges. Pre-determination is more of an issue for Ministers

Question 21

What does BC Helicopters say about bias?

Answer 21

Actual bias is about whether the decision maker had closed their mind. Perceived bias is about how the decision maker looks. Bias is only a problem for Ministers if their mind is completely closed

Question 22

What did CreedNZ say about bias and predetermination

Answer 22

Bias should be assessed on a balance of probabilities regarding whether the decision maker had a closed mind. Bias has a high threshold

Question 23

What did NZ Firearms say about consultation

Answer 23

If a party has been consulted in the past on something it may mean they have a right to be consulted again

Question 24

What does Taylor say?

Answer 24

We assume that parliament did not write sections that breach fundamental rights

Question 25

Bayline

Answer 25

Not public decision as it was about two different bidders for a private contract

Question 26

Hopper

Answer 26

Private decision but still justiciable because the decision was of public interest

Question 27

Curtis

Answer 27

Not public decision as it was about to what level the RNZAF should be armed

Question 28

Great CHCH Buildings trust

Answer 28

Standing: GCBT has standing because of the importance of the building to them; this case shows us pretty much everyone had standing

Question 29

Case for ultra vires

Answer 29

AG v Taylor
We assume that parliament did not write sections that breach fundamental rights