Judicial Review Flashcards
Amenable to review
The power under the act needs to be a statutory power of decision and that is amenable because of the Judicial Review Procedure Act.
3 requirements for justiciability
Legal yardstick, public in nature standing
Hopper
Private decision but still justiciable because the decision was of public interest
Curtis
Not public decision as it was about to what level the RNZAF should be armed
Bayline
Not public decision as it was about two different bidders for a private contract
Great CHCH building trust
Standing: GCBT has standing because of the importance of the building to them; this case shows us pretty much everyone had standing
grounds under illegality
improper purpose, lawfulness, mandatory considerations, ultra vires
Lawfulness
a decision maker has applied in the law wrong
Considerations
(CreedNZ) Relevant considerations are the ones the act says must be considered.
Improper purpose
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
Ultra vires
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
Natural Justice
Natural justice means an individuals human rights are threatened and means the threshold for bias and audi alteram partum is lowered.
Audi alteram partum
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
Bias
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
actual vs perceived bias
- 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) - Perceived bias (for judges)
- Objective test from a reasonable, fair minded, and informed observer (McGrath)