Judicial review - Procedural Impropriety

Question 1

What is the right to natural justice?

Answer 1

The right to natural justice, also known as procedural fairness, is a fundamental legal principle that ensures fairness and protects the rights of individuals in administrative and legal proceedings. It encompasses two main principles:

The right to be heard
the right to an unbiased decision maker

Question 2

Explain the right to be heard

Answer 2

individuals have the right to have the opportunity to present their case and be heard before a decision is made that may affect their rights, interests or legitimate expectations

Question 3

Explain the right to an unbiased decision maker

Answer 3

the right of individuals to have decision makers be impartial and free from bias that may influence their decision making

Question 4

How does fairness work in Judicial review?

Answer 4

it depends on the circumstances and is a contextual enquiry depending on the facts and the legal framework in question

Question 5

What are the factors which inform what fairness requires

Answer 5

1. The facts
2. The decision making framework (i.e. statute)
3. The nature of the decision
4. Rights/interests/responsibilities overlaying the law
5. Legitimate expectations

Question 6

How is the nature of the decision a factor impacting fairness

Answer 6

there are more fairness requirements for a decision impacting one person as opposed to a group of people

Question 7

What might be some of the rights/interests/responsibilities overlaying the law?

Answer 7

1. Common law rights - “there are some rights which are so well protected even parliament cannot undo them”
2. Te Tiriti - SoE case principles are part of the NZ constitution so must be considered
3. Tikanga - upholding mana
4. international law and treaty obligations

Question 8

what does legitimate expectation mean?

Answer 8

justice done and seen to be done - if you promise to do something you need to do it

Question 9

What is the overview of Dagayanasi?

Answer 9

Daganayasi v Minister of immigration [1980] 2 NZLR 130

Appellant had unsuccessfully applied for residency and was facing deportation. He had a sick child and the Department of immigration had prepared a report which minimized the child’s risk of travel and incorrectly implied that the child’s doctor agreed with the findings of the report. The Minister of Immigrations decision to deport the appellant was based on the doctors report

The appellant argued that he had not been given the opportunity to present his case or respond to the information used in the report which was incorrect

Question 10

What was the central issue in Daganayasi

Answer 10

had the minister of immigration followed the principles of natural justice and procedural fairness in making the deportation decision?

Question 11

What was the courts findings in Daganayasi

Answer 11

natural justice requires that the medical report written by the Department of immigration should have been disclosed to the appellant and that they should have been given the opportunity to respond to the matters in the report

The minister of immigrations decision was invalid on the grounds of procedural unfairness

Question 12

What was the background of CreedNZ?

Answer 12

CREEDNZ v Governor-General [1981] 1 NZLR 172

There was an order in council that allowed companies to bypass normal statutory procedures for consent granting under the National Development Act 1979.

This was challenged by an environmental group that argued that it removed their right to be heard about and be consulted on projects impacting the environment (as was the normal statutory procedure)

The discretionary power was with the governor general who could make a decision to grant consent after consultation with the minister.

Question 13

what was the issue in CreedNZ?

Answer 13

whether there was an implied obligation to accord a hearing to property owners in the vicinity of the site of the proposed smelter before making a decision to grant consent under the national development act 1975?

Question 14

What was the courts findings in CreedNZ

Answer 14

the purpose of the act was to provide a mechanism for prompt consideration of proposed works of national importance. the right to be heard would be inconsistent with the purpose by providing an unnecessary roadblock

Public participation was provided in public consultation on the law itself to give everyone the right to be heard would be time consuming

Question 15

What is an additional important point about CreedNZ

Answer 15

it related to decisions made by the governor general and the court made the point that this kind of decision made by the GG were not subject to judicial review because they are considered to be an exercise of executive political power not legal power and were beyond the reach of judicial scrutiny

Question 16

What was the background of Fraser?

Answer 16

Fraser v State Services Commission [1984] 1 NZLR 116

Fraser was dismissed from his job at the state services commission

Question 17

What was the issue in Fraser?

Answer 17

Did the state services commission adhere to principles of natural justice in the dismissal procedure?

Question 18

What was the findings of the court in Fraser?

Answer 18

The state services commission had not provided fraser with a fair chance to respond to the allegations or to present his case

Question 19

What was the background in Saxmere?

Answer 19

Saxmere Company ltd v Wool board disestablishment company Ltd [2010] 1 NZLR 35

TBD

Question 20

What is the key principle identified in Saxmere?

Answer 20

A judge is disqualified if a fair minded law observer may reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case to be decided

Question 21

what ideas does this principle give effect to?

Answer 21

1. That justice should be done and seen to be done
2. judges should be and remain impartial and independent of bias
3. The public has confidence in an independent and impartial judiciary

Question 22

What is the two part saxmere test?

Answer 22

1. The identification of what it is said that might lead a judge to decide a case on anything other than its legal and factual merits
2. there must be a logical connection between the matter and the feared deviation from a case decided on its merits

Question 23

What are the three presumptions about the fair minded observer in the saxmere test?

Answer 23

1. they are intelligent with the ability to view things objectively
2. they are a non-lawyer who is reasonably informed about the workings of the judicial system
3. they are reasonably informed about the issues and facts of the case being discussed

Question 24

What does it mean to be reasonably informed about the judicial system?

Answer 24

1. knowledge about how counsel and judges are supposed to act with one another
   (a) Counsel acts on the clients behalf in a professional manner
   (b) They are not involved indirectly or directly with any financial interest in the outcome of the case
   (c) They must conduct themselves in accordance with professional standards
   (d) If they have professional relationships with opposing counsel they must act without compromising their clients interests
2. The general conduct of judges requires that they:
   (a) Judges must be independent in decision making and have taken an oath to do right in all manner of people after the laws and usages of NZ
   (b) They have an obligation to sit on any case they are allocated to unless they are disqualified - they cannot pick and choose cases
   (c) Judicial system functions on the basis of deciding between litigants irrespective of the merits or demerits of counsel