Judicial Review in New Zealand: A Guide to JRPA 2016

Posted on Oct 25, 2024 in Law & Jurisprudence

Exercise of Public Power & Judicial Review

Judicial Review Procedure Act 2016

Refer to the relevant sections of the Judicial Review Procedure Act 2016.

Section 3(1)(a)-(c)

The JRPA allows for judicial review of:

  • The exercise, failure to exercise, proposed, or purported exercise of a statutory power.

Section 5: Definition of Statutory Power

(1) In this Act, statutory power means a power or right to do anything specified in subsection (2) and conferred by or under:

  1. Any Act; or
  2. The constitution or other instrument of incorporation, rules, or bylaws of any body corporate. (This can extend to private incorporated associations if decisions are made under their bylaws or constitution.)

(2) The things referred to in subsection (1) are:

  1. To exercise a statutory power of decision; or…

Section 4: Interpretation

Statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding, prescribing, or affecting:

  1. The rights, powers, privileges, immunities, duties, or liabilities of any person; or
  2. The eligibility of any person to receive, or continue to receive, a benefit or license, whether that person is legally entitled to it or not.
  • The JRPA definition covers:
    • Government decisions made under the Act, and
    • Decisions made under the constitution, bylaws, or rules of private incorporated associations.
  • The key question is whether the power exercised is of a public nature or has public consequences (Royal Australasian College of Psychiatrists v Phipps; Wilson v White; Hopper; Bayline Group). (Most government decisions will be of a public nature, as will some decisions by private incorporated associations if there are public consequences.)

Justiciability

  • Is the decision one where the courts should defer to the decision-maker?
    • National security (Curtis; CCSU)
    • Complex policy; use/allocation of national resources, etc.

Standing

  • A person’s legal capacity to challenge a decision.
  • In New Zealand, the courts have adopted a generous and holistic approach. (Standing should be assessed in light of the legal and factual context of the matter.)
  • Personal and public interest standing (see Smith v Attorney-General):
    • If directly impacted (i.e., the applicant’s personal rights and interests are affected), standing is met.
    • If standing is claimed on broader public interest grounds, this is also acceptable if there is a bona fide interest in a matter of public interest and it is not frivolous or vexatious. (Therefore, living in the affected area might be enough for standing, even without direct impact.)
      • Ye v Minister of Immigration
      • Mocrief-Spittle v Regional Facilities Auckland
      • Finnigan v NZRFU

Grounds for Review

  • Three broad categories (from Diplock in CCSU):
    • Illegality
    • Unreasonableness
    • Procedural Impropriety
  • These categories (and the grounds they encapsulate) overlap significantly.
  • Illegality:
    • Ultra vires:
      • Did the decision-maker have the legal power to make the decision? (Quake Outcasts)
    • Improper purpose:
      • Decision-makers must not exercise their powers for purposes outside the objects of the relevant statute. (Fiordland Venison; Wheeler; AG v Ireland)
    • Relevant/irrelevant considerations:
      • Failure to take into account a relevant matter (as required by law)
      • Taking into account a legally irrelevant matter
      • Fiordland Venison; CREEDNZ Inc; Simes
    • Mistake of fact:
      • A decision-maker ignores or acts in defiance of an incontrovertible fact; reliance on that fact was pivotal to the decision. (For example, a decision made about dolphins based on incorrect science.)
      • Northern Inshore Fishing; Daganayasi; Taiaro
    • Abdication of discretion:
      • Decision-maker ‘fetters’ their discretion.
      • Rigid application of policy (Christiansen)
      • Acting under direction (Macfarlane; Criminal Bar Association of NZ v AG)
  • Procedural impropriety:
    • Ensuring decisions are arrived at fairly and in accordance with natural justice (reinforced through s 27(1) NZBORA).
    • Always dependent on specific circumstances (Phipps; Daganayasi; Furnell).
    • Audi alteram partem (hearing rules, nature of the hearing):
      • Duty to provide notice:
        • Reasonable opportunity to present a case and reasonable notice of the case to be met.
        • Temporal (enough notice in terms of time) and substantive aspects (awareness of the decision’s impacts). (Ali; Phipps; Ridge v Baldwin)
      • Duty to disclose relevant material:
        • Subject matter; relevant issues to the decision; information that will be taken into account; procedure for the decision; consequences (Daganayasi; Mockford; Simes)
      • Provision of reasons and extent of reasons:
        • No general duty (Lewis v Wilson & Horton), but desirable (Lewis v Wilson & Horton (No 2)).
        • When required, reasons should be proper and adequate (Bell v Broadcasting Standards Authority)
    • Nemo debet esse judex in propria causa (bias/predetermination):
      • Two forms of bias:
        • Presumptive bias:
          • A decision-maker has a direct (usually pecuniary) interest in the outcome.
          • Automatic disqualification (Auckland Casino; Pinochet (No 2))
        • Apparent bias:
          • A decision-maker has a personal or professional relationship with a party, or a preference for a particular approach, to an extent that might give rise to apprehension of bias.
          • Two-stage test from Saxmere:
            • Identify the bias (what might lead a judge to decide a case other than on its factual merits).
            • Connect the risk of bias to the specific matter/issues at hand.

    Remedies

    • Available under ss 16 and 17 of the JRPA (or Part 30 of the High Court Rules).
    • Section 16:
      • Prerogative remedies:
        • Mandamus s 16(1)(a)(i): compels a person to make a decision (according to law).
        • Prohibition s 16(1)(a)(ii): prohibits a person from making a decision.
        • Certiorari s 16(1)(a)(iii): quashes an existing decision.
      • Ordinary remedies:
        • A declaration or injunction s 16(1)(b)
    • Section 17:
      • The court may order the decision-maker to reconsider all or part of their decision as related to the application.