Judicial Review

Judicial review core definition

Process whereby HC reviews the lawfulness of exercises of public power by the executive and public bodies

Constitutional position of judicial review in NZ

Because executive exercises dominant power in Parliament, judicial review serves a critical constitutional checking function

Judicial authority v democratic legitimacy

In jurisdictions where courts review legislation, judges often possess formal democratic linkages, but, in NZ, HC judges are unelected, potentially restricting their democratic legitimacy

Sources of judicial review power

Inherent jurisdiction

Statutory courts (CA and SC)

Judicial Review Procedures Act 2016

Judicial Review Procedures Act 2016

Formalised and streamlined procedural mechanics and remedies without displacing the common law origins of judicial review

Judicial review origin

Inherent jurisdiction of HC

Appeal origin

Entirely statutory

Judicial review right v remedy

Discretionary judicial remedy

Appeal right v remedy

Statutory right of appeal if criteria are met

Judicial review focus

Decision-making procedure, lawfulness, and authority

Appeal focus

Substantive merits, correctness, and factual/legal outcomes

Judicial review scope

Confined to public decisions

Appeal scope

Can apply to private, civil, criminal, and public disputes

Methods of bringing judicial reviews

Direct challenge

Collateral challenge

Direct challenge

Affirmative proceeding initiated specifically under the Judicial Review Procedures Act 2016 challenging an executive decision-maker

Collateral challenge

Invoking judicial review defensively within existing court proceedings

Ouster Clause

Provision introduced in Anisminic Ltd seeking to prevent courts from reviewing certain decisions or actions, asserting that they cannot be challenged in court

Anisminic Ltd v Foreign Compensation Commission

Expanded the ultra vires doctrine, asserting that an error of law could take a decision-maker outside their jurisdiction.

Natural Justice

Legal principle that requires fair procedures which involve audi alteram partem and nemo judex in causa sua

Audi alteram partem

Right to a fair hearing

Nemo judex in causa sua

Right against bias

Legitimate Expectations

Procedural ground in judicial review which allows individuals to expect a certain administrative process to be followed based on prior representations made by a public authority

S27 NZBORA

Right to justice and the observance of natural justice by public tribunals

Wednesbury Unreasonableness

Standard of judicial review that refers to a decision being so unreasonable that no reasonable authority could ever have made it

Prerogative Writs (Certiorari, Mandamus, Prohibition)

Traditional common law remedies in administrative review

Certiorari

Type of prerogative writ that quashes an unlawful decision, allowing the decision-maker to reconsider the matter under lawful procedures

Mandamus

Prerogative order that compels a public official or administrative body to fulfill a public or statutory duty that has been neglected

Prohibition

Prerogative order that prevents an administrative decision-maker from proceeding with an unlawful action

Hansen test

Six-step framework formulated in R v Hansen for analyzing legislative inconsistencies with protected rights under NZBORA

Te Tiriti o Waitangi

Imposes a legal obligation on the Crown to consider Māori interests in decision-making, whether stated or not in legislation

Statutory Power vs. Common Law Review

Distinction between powers exercised under statutory law and those that arise from common law or traditional legal principles

De Facto Public Power

Public authority exercised by bodies that are not established by statute but fulfill significant public functions, thus subject to review

R v Panel on Takeovers and Mergers, ex parte Datafin plc (UK) issue

Whether a private, self-regulatory body with no statutory or prerogative basis was subject to judicial review

R v Panel on Takeovers and Mergers, ex parte Datafin plc (UK) holding

Bodies exercising public duties or de facto public power are subject to judicial review regardless of their source of authority

Royal Australasian College of Surgeons v Phipps (NZ) issue

Whether a report prepared by a professional surgical college reviewing a surgeon's practice for a public health board was reviewable

Royal Australasian College of Surgeons v Phipps (NZ) holding

Non-statutory bodies exercising powers with public consequences, professional reputational impacts, and public health ramifications are subject to public law judicial review principles.

Four core inquiries in judicial review

Who

How

Why

Output

Who

(Jurisdiction & Authority): Did the decision-maker possess the lawful authority to make the decision? (Covers ultra vires, statutory interpretation, delegation, and improper composition)

How

(Procedural Fairness): Was the decision made using proper procedural steps? (Covers rules of natural justice, freedom from bias, right to a fair hearing, and statutory procedural compliance)

Why

(Inputs & Process): Were the correct legal inputs and reasoning applied? (Covers taking into account relevant considerations, ignoring irrelevant considerations, improper purpose, and bad faith)

Output

(Substantive Rationality): Does the decision cross substantive legal thresholds? (Covers unreasonableness/irrationality, proportionality, and breaches of fundamental human rights under NZBORA)

Types of executive power

Imperium power

Dominion power

Third source?

Imperium power

Sovereign power of the state to compel compliance, impose duties, and restrict individual liberties

Dominion power

Power exercised by the state as a property owner, employer, or commercial entity

Third source of power

While R v Secretary of State for Health, ex parte Fewings held public bodies possess no private rights for their own sake and every public action must be justified by positive legal authority, Hamid v R held executive interference with individual liberty or privacy requires positive legal authorization under statute

Remedies in Judicial Review

Relief granted by courts in judicial review cases, typically including quashing orders, mandatory directions, declarations, and injunctions

Judicial Review Procedures Act 2016

Legislation that streamlines the process for challenging administrative decisions and clarifies the remedies available in judicial review

Substantive Unreasonableness

Ground for judicial review where the court examines whether the substantive outcome of a decision is just and rational

Improper Purpose

Legal doctrine stating that powers conferred for a specific public purpose cannot be used for unauthorized ends

Judicial Independence

Principle that court decisions must be free from external control or influence, ensuring impartiality in the justice system

Ridge v Baldwin (1964)

Abolished the strict distinction between judicial and administrative functions and establishing that natural justice applies to any public decision revoking office, status, or livelihoods

S27 NZBORA & Common Law Natural Justice

Codifies the right to natural justice before public authorities

Daganayasi v Minister of Immigration

CA held that withholding prejudicial medical reports denied the applicant a meaningful hearing

Osborne v Parole Board

Established that public bodies cannot implement blanket 'paper-only' determination policies for administrative convenience

The Tarrant Criteria (Legal Representation)

set of non-exhaustive common law criteria used to determine when procedural fairness demands allowing legal representation before an administrative tribunal:

(1) seriousness of allegation/penalty

(2) complexity of legal issues

(3) applicant's personal capacity to present their case

(4) procedural hurdles

(5) need for administrative speed

(6) equality of arms between parties.

Awatere case

Affirmed that while S23 of OIAconfers an enforceable statutory right to written reasons for personal decisions, New Zealand common law does not recognize a universal, freestanding duty for all decision-makers to give reasons

Declarations of Inconsistency (DOI)

Formal judicial ruling that a statutory provision is inconsistent with NZBORA rights, confirmed as an inherent judicial power in Attorney-General v Taylor

Doctrine of Improper Purpose

Statutory power conferred for one purpose cannot be deployed to pursue an unauthorized, collateral, or extraneous goal

Simes Case

Demonstrates that public decision-makers must evaluate relevant reports in their entirety

Ngāi Tahu Whale Watching Case

Established that even without an express Treaty clause, Te Tiriti is an essential relevant consideration whenever executive actions impact Māori interests or customary rights

Fiordland Venison Case

Illustrated that when a statute sets out an exhaustive list of licensing criteria, a Minister cannot introduce extraneous policy goals

Roberts v Hopwood [1925]

Cautionary example of subjective judicial policy views

Waitakere City Council v Lovelock

Framework to lower and clarify the high Wednesbury threshold, identifying actionable indicators of substantive unreasonableness:

(1) manifest disproportionality

(2) failure to give weight to fundamental common law rights

(3) logical flaws/contradictions in reasoning

(4) breach of fiduciary duties to constituents

(5) unreasonable failure to balance competing community interests.

R (Rogers) v Swindon NHS Trust

Struck down the refusal as substantively unreasonable because the policy failed to define any rational medical criteria for exceptionality, acting as a de facto unlawful blanket ban that defeated the statutory scheme

Wellington City Council v Woolworths

Courts will not rewrite rating schemes under substantive unreasonableness unless they are so completely irrational that no sensible council could have implemented them

Judicial Declarations & Constitutional Comity

Declaration is standard administrative law remedy. Resolves the legal rights of parties and states whether an executive action is lawful. No coercive power , but constitutional comity presumes the Crown will voluntarily follow authoritative judicial determinations, preventing constitutional standoffs.