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.