Judicial Review Flashcards

1
Q

Amenable to review

A

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

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2
Q

3 requirements for justiciability

A

Legal yardstick, public in nature standing

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3
Q

Hopper

A

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

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4
Q

Curtis

A

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

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5
Q

Bayline

A

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

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6
Q

Great CHCH building trust

A

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

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7
Q

grounds under illegality

A

improper purpose, lawfulness, mandatory considerations, ultra vires

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8
Q

Lawfulness

A

a decision maker has applied in the law wrong

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9
Q

Considerations

A

(CreedNZ) Relevant considerations are the ones the act says must be considered.

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10
Q

Improper purpose

A

BC Helicopters
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

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11
Q

Ultra vires

A

When a decision it outside of the scope of the delegated power. Applies for delegated legislation mainly.

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

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12
Q

Natural Justice

A

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

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13
Q

Audi alteram partum

A

When a decision-maker gives individuals adequate notice and the opportunity to be heard

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

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

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

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14
Q

Bias

A

A sliding threshold test. Bias is allowed more for Ministers meaning actual bias is needed (Back Country Helicopters). Bias is not allowed for judges meaning perceived bias is enough. Bias is more a standard to be applied to judges; pre-determination is more of an issue for Ministers

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15
Q

actual vs perceived bias

A
  1. Actual bias (for those acting in a political/ministerial capacity
    - Where there is clear evidential basis that one result is preferred to another for irrelevant considerations (McGrath)
  2. Perceived bias (for judges)
    - Objective test from a reasonable, fair minded, and informed observer (McGrath)
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16
Q

Bias case B

A

Backcountry helicopters: 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

17
Q

Bias case C

A

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

18
Q

Unreasonableness

A

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

19
Q

high standard for unreasonableness

A

Very high bar for unreasonableness: so unreasonable no reasonable decision maker could ever make that decision
Example in case Short v Poole: teacher dismissed because of red hair

20
Q

low bar for unreasonableness

A

Hauraki
“the intensity of review of decisions about climate change by public decision-makers is similar to that for fundamental human rights. Depending on their context, decisions about climate change deserve heightened scrutiny”

“If the decision … had been based on misinformation or blanket denial of climate change, it may well have been unreasonable.”

Students for Climate Change
climate change is serious, but it is not a trump card; here the decision maker was acting for purpose of act

21
Q

broad policy

A

Backcountry Helicopters
When the subject involves a broad policy, they can be more unreasonable

22
Q

Remedies available

A
  1. Mandamus: positive - makes decision maker do what they should be doing
  2. Prohibition: stops decision maker doing something unlawful
  3. Certiorari: gets rid of the decision
23
Q

Limits on Remedies

A
  1. All remedies are discretionary so you may get nothing
  2. Won’t be granted if it will cause administrative difficulties
  3. Won’t be granted if the remedy serves no purpose
  4. Won’t be granted if there has been a long delay
24
Q

when will remedies be granted

A

Air nelson - must be strong reasons not to grant remedies