Judicial Review
Judicial review core definition
Process whereby HC reviews the lawfulness of exercises of public power by the executive and public bodies
Discretionary judicial remedy
Because executive exercises dominant power in Parliament, judicial review serves a critical constitutional checking function
Source of judicial review power
Inherent jurisdiction
Statutory courts (CA and SC)
Judicial Review Procedures Act 2016
Formalised and streamlined procedural mechanics and remedies without displacing the common law origins of judicial review
Methods of bringing judicial review:
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 v Foreign seeking to prevent courts from reviewing certain decisions or actions, asserting that they cannot be challenged in court
Expanded the ultra vires doctrine, asserting that an error of law could take a decision-maker outside their jurisdiction.
Natural Justice
Audi alteram partem: right to a fair hearing
Nemo judex in causa sua: right against bias
Affirmed by S27 NZBORA
Wednesbury Unreasonableness
Standard of judicial review that refers to a decision being so unreasonable that no reasonable authority could ever have made it
Prerogative Remedies
Certiorari: quashes an unlawful decision
Mandamus: compels a public official or administrative body to fulfill a public or statutory duty that has been neglected
Prohibition: prevents an administrative decision-maker from proceeding with an unlawful action
R v Panel
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
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: did they have lawful authority, Covers ultra vires, statutory interpretation, delegation, and improper composition
How: were proper steps followed, natural justice, freedom from bias, right to a fair hearing
Why: correct reasoning applied, appropriate considerations, improper purpose, and bad faith
Output: does decision cross substantive thresholds, unreasonableness/irrationality, proportionality, and breaches of fundamental human rights
Ridge v Baldwin
Abolished the strict distinction between judicial and administrative functions and establishing that natural justice applies to any public decision
Daganayasi v Minister of Immigration
withholding prejudicial medical reports denied the applicant a meaningful hearing
Osborne v Parole Board
public bodies cannot implement blanket 'paper-only' determination policies for administrative convenience
Awatere case
common law does not recognize a universal, freestanding duty for all decision-makers to give reasons
Tarrant criteria for judicial review representation
(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.
Ngāi Tahu Whale Watching
Even without te Tiriti clause, it must be considered
Fiordland Venison
when a statute sets out an exhaustive list of licensing criteria, a Minister cannot introduce extraneous policy goals
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
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.