Judicial Review - Overview & Illegality

Question 1

What is discretion?

Answer 1

Cartier - refers to decisions where the law does not dictate a specific outcome or where the decision maker is given a choice of options within a statutorily imposed set of boundaries

Question 2

What does discretionary decision allow for?

Answer 2

1. Flexibility and efficiency of statutory regimes by taking the burden of decision making away from parliament who may not have time
2. allows for experts to make decisions where parliament may not necessarily have the expertise

Question 3

Define Judicial review

Answer 3

The review by a judge of the High court of any exercise of public decision making powers, in order to determine whether the decision or action is unauthorized our invalid

Question 4

What is the purpose of judicial review (4 key points)

Answer 4

1. To allow for decisions made by the government to be challenged
2. Ensures that public authorities act within the law by defining the principles of law that govern administration
3. safeguards individual interests against illegal or unreasonable administrative action taken without following proper procedures

Cooke J JR is about the procedural and substantive limits and constraints on power

Question 5

What constitutional principle does it principally give effect to?

Answer 5

The separation of powers - prevents any one branch of government from being able to act with unfettered power

The rule of law - all are equal before the law even government decision makers

Parliamentary sovereignty - judges cannot overturn the law made by parliament but they can question that process that was followed to make a law

Question 6

What is the role of the courts in judicial review proceedings (3 points)

Answer 6

Judicial review is a supervisory jurisdiction

It is the jurisdiction of the senior courts to supervise the lawfulness of those who have been given primary responsibility for exercising public powers

Their role is only to supervise the exercise of power of the people we elect to exercise that power

Question 7

What are the grounds of judicial review?

Answer 7

Established by Diplock J in Council Service Civil Unions Case and adopted in NZ, the three grounds are:

Illegality
Irrationality
Procedural Impropriety

Question 8

What must a decision be before it a ground of judicial review can be brought?

Answer 8

Before action can be brought the decision must be amenable to judicial review. I.e. the decision must be a public one and therefore judicial review can be used to challenge it

Question 9

Which NZ case studied confirms what type of decisions or actions are subject to review?

Answer 9

Affirmed in - Lab tests Auckland Ltd v Auckland DHB 2009

Question 10

What type of decisions or actions may be subject to judicial review?

Answer 10

Per Arnold J in Lab tests -
Judicial review will be available where there is fraud, corruption or bad faith

We accept as a matter of principle that it may be available in analogous situations such as where an insider with significant inside information and conflict of interest has used that information to further his or her interests and to disadvantage his or her rivals in a tender

Question 11

According to Sir Robin Cooke what is the duty of decision makers?

Answer 11

Its the threefold duty of the decision maker to act reasonably, fairly and in accordance with the law

This can be translated to the three grounds for judicial review identified by Diplock J in the Council Service Civil unions case

Reasonably - reasonableness
Fairly - procedural impropriety and natural justice
in accordance with the law - illegality

Question 12

What does the law require a decision maker when they are interpreting and applying the law?

Answer 12

the decision maker must have gotten the law shaping their discretion correct otherwise they are acting outside of the scope of their legal powers (Carter-Holt)

Question 13

what are the sub-grounds under illegality

Answer 13

Error of law
Error of fact
Relevant/irrelevant considerations
Improper purpose
Fettering of Discretion

Question 14

Explain error of law as a subground for judicial review

Answer 14

the decision maker has gotten the law shaping their discretion incorrect and are therefore acting outside the scope of the power they have been conferred in statute

Question 15

How is Peters relevant to error of law?

Answer 15

Peters v Davidson 1999
Judicial review is in general available where a decision making authority exceeds its powers commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers (quoting from UK case law and adopted by NZ in Miller v Commissioner of IRD 1995)
Error of law is a ground of review in and of itself; it is not necessary to show that the error was one that caused the tribunal or court to go beyond its jurisdiction

Question 16

What is the court case for error of law

Answer 16

Carter Holt Harvey ltd v North Shore City Council (2008) Court of appeal Wilson J delivering judgement

Short form - carter holt harvey

Question 17

What is the background and legal issue in Carter holt harvey?

Answer 17

law requires anyone collecting and transporting waste to have a licence to do so otherwise its unlawful

Carter holt harvey manufactures paper from recyclable paper

Is the recyclable paper acquired by Carter holt “waste” for the purpose of the by law

Question 18

What were the findings of the court in Carter holt and reason for their conclusion?

Answer 18

of the two definitions put forward by counsel, the court agreed with carter holt.

Reasoning? carter holt definition provides a test in line with common usage and provides a clear and practical way of distinguishing between what is an isnt waste

The council definition created uncertainty and would be difficult to apply and likely lead to unintended consequences

The court ultimately found the councils interpretation of the by law invalid and that they had acted ultra vires

Question 19

Explain error of fact as a subground for judicial review

Whats important to note about this subground?

Answer 19

When the decision maker gets a fact wrong and its incontrovertible

As a general rule factual questions are for the decision maker and the courts reason that factual determination has been entrusted to the decision by parliament However there are instances where the facts are incorrect and its incontravertible at which point the courts can step in

Question 20

What is the court case for error of fact?

Answer 20

Oggi Advertising Ltd v Auckland city council 2005 High court Harrison J delivering judgement

Short form - oggi

Question 21

What are the key findings from oggi?

Answer 21

“A finding that the facts cannot support the councils decision to register the billboard or alternatively that the decision is based upon a clear mistake of fact provides a justiciable basis for setting it aside”

Question 22

Explain improper purpose as a subground for judicial review

Answer 22

It will be unlawful if the decision maker exercises the power for a purpose that thwarts or runs counter to the statutory purpose of power

Parliament intended to have the discretion limited/framed by the purpose of the statute

Question 23

How do we know what the purpose of a statute is for the purpose of improper purpose as a subground?

Answer 23

We identify proper purpose from those purposes that are set out expressly (in the relevant sections of the statute) or by necessary implication within the statute looking at the test and scheme and where the power fits into the overall statute

Question 24

What is the court case for improper purpose?

Answer 24

Unison Networks Ltd v Commerce Commission 2008 Supreme Court McGrath J delivering judgement

Short form: Unison

Question 25

What did the court find in Unison?

Answer 25

A statutory power is subject to the limits even if it is conferred in unqualified terms.

Parliament must have intended that a broadly framed discretion should always be exercised to promote the policy and objectives of the act.

The exercise of power will be invalid if the decision maker so uses his discretion to thwart or run counter to the policy and objects of the act

Question 26

How do we identify what the purpose is?

Answer 26

It is an exercise in statutory interpretation (from Unison)

the purpose is that which is identified expressly in the purpose or long title sections of an act or by necessary implication in the statute

Question 27

Explain relevant and irrelevant considerations as a sub ground for judicial review

Answer 27

Decision makers must take into account relevant factors and considerations and disregard all irrelevant considerations

The weight given to each consideration is for the decision maker so long as that considered it its fine even if it had little bearing on the decision

Question 28

How do we identify relevant considerations in statute?

Answer 28

the relevant considerations are those identified expressly in statutory provisions or by necessary implication in the statute

where the provision includes lists - indicating things that need to be take into account - from NZ fisheries

Like improper purpose it is an exercise in statutory interpretation

Question 29

What is the difference between a mandatory and a permissible consideration?

Answer 29

Mandatory consideration: ones that must be taken into account - i.e. provisions that use the word “must”

Permissible considerations ones that may be taken into account i.e. the provisions that use the word may or “other matters the minister thinks is relevant”

Question 30

What is the court case for relevant considerations?

Answer 30

New Zealand Fishing industry association inc v Minister of agriculture and fisheries 1988 Cooke P delivering judgement

Short form: NZ Fishing

Question 31

What was the findings in this case

Answer 31

The court found that the minister had taken all relevant considerations

the duty to consider statutory criteria extends to facts so plainly relevant to those criteria that parliament would have intended them to be into account and a reasonable minister would not fail to do so

the statute required him to have regard to all the overlapping matters listed as (a) to (e) but their weight inter se was for him to decide within the limits of reason subject only to the necessary qualifications

Question 32

Explain self fettering as a sub ground for judicial review

Answer 32

the duty to genuinely exercise a discretion and to tailor the decision to the particular circumstances that are before the decision-maker place limit on the ability of public bodies to themselves fetter the circumstances in which they will exercise the power that has been entrusted to them

a decision maker cannot act under dictation and rubber stamp a decision

Question 33

What is the court case for self-fettering

Answer 33

M v Syms 2003 High Court McGhecan J delivering judgement

Short form: Syms

Question 34

what was the background in syms

Answer 34

two students were suspended for consuming alcohol on a school trip

the two students argued that the quantity they had drunk was small

The rector refused to give consideration to the quantity stating that any consumption was an automatic suspension

The BoT resolved to expel M on that grounds that his breach of school rules was a gross misconduct

Court looks at the meaning of gross misconduct

Question 35

What did the court find in syms

Answer 35

it is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case; each case must be considered on its own merits and decided as the public interest requires each time

The imperative is that the authority genuinely be prepared to consider each individual case on its own merits assess it as a possible exception to the general policy

The rector did not see the need to stop and did not stop to consider whether in all the circumstances of the case including such matters as the character of the boys there should or should not be suspension