FOREWORD

The first edition of "The Judge Over Your Shoulder" appeared in 1988/89. Since that time the scope and volume of administrative law and judicial review have continued to develop at an increasing pace. Among the significant legislative reforms since that time are the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 (and subsequent Amendment Act 2001), the Privacy Act 1993, the Electoral Act 1993 (which provided for MMP), Te Ture Whenua M

For decision-makers within Government, particular reforms which have, or may in the future, provide fertile ground for judicial review applications include the Education Act 1989, the Resource Management Act 1991, the Building Act 1991, the Employment Contracts Act 1991 (followed by the Employment Relations Act 2000), the Health and Safety in Employment Act 1992, the Holidays Act 2003, the Defamation Act 1992, the Land Transport Act 1993, the Fisheries Act 1996, and the Foreshore and Seabed Act 2004. In the criminal law area the Bail Act 2000, the Parole Act 2002 and the Sentencing Act 2002 have been passed.

All of these changes make a new edition of "The Judge Over Your Shoulder" timely indeed. It’s purpose is to give decision-makers (and those who advise them) at all levels an introduction to the present state of the law and to highlight the principles of good administration which the courts expect us to apply. I am sure that this edition will prove as useful and popular as the first edition of "The Judge Over Your Shoulder".

Terence Arnold QC

Solicitor-General

1 March 2005

CONTENTS

INTRODUCTION 2

THE NATURE OF JUDICIAL REVIEW 2

THE GROUNDS OF CHALLENGE 5

FIRST GENERAL GROUND OF REVIEW – ILLEGALITY 6

Error of law 7

Error of fact 7

Ultra Vires 8

Relevant or irrelevant considerations 8

Rigid application of a pre-determined policy 9

Acting under dictation 9

Invalid delegation 10

Improper purpose 10

SECOND GENERAL GROUND OF REVIEW – UNFAIRNESS 11

Natural Justice 12

Bias 13

Legitimate Expectation 14

Lack of consultation 15

THIRD GENERAL GROUND OF REVIEW – UNREASONABLENESS 16

Substantive Unfairness 17

Other impacts on judicial review 17

The Treaty of Waitangi 18

International obligations 20

New Zealand Bill Of Rights Act 1990 21

Remedies 24

Human Rights Act 25

THE PROCESS AND OUTCOME OF JUDICIAL REVIEW 26

Interim orders 26

Relief 26

Process 27

Discovery 27

Affidavits 28

Getting the process right 28

Consultation 29

Preparing the recommendations 29

INTRODUCTION

1. The Judge Over Your Shoulder is directed to Government officials responsible for making decisions affecting public rights or those who prepare reports and recommendations for others (including Ministers and Chief Executives) to decide. The purpose of this publication is twofold: first, to give guidance as to the principles involved in review of decision-making; and, second, to highlight the danger areas where Government decision-makers may be particularly open to challenge in the courts. It also offers general advice on the format of recommendations and the process to follow.

2. The Judge Over Your Shoulder is not, and cannot be, a substitute for seeking specific legal advice. Nor is it a comprehensive guide to administrative law. What it aims to do is alert public decision-makers to the potential challenges their decisions may face so that they can take legal advice at the right time, and to provide a general framework for the decision-making process. Although The Judge Over Your Shoulder will be available to the public, it is not intended to be a public guide to official decision-making or legal advice. Care also needs to be taken to ensure that the law has not changed since the date of publication. Specific queries should be addressed to departmental legal advisors in the first instance, or to the Crown Law Office.

THE NATURE OF JUDICIAL REVIEW

3. Judicial review is the review by a judge of the High Court of any exercise (or any refusal to exercise) of public decision-making powers, in order to determine whether that decision or action is unauthorised or invalid. Although most such powers derive from statute, judicial review may also extend to public powers that do not have a statutory basis, including decisions under the Crown prerogative.

4. Although this guide will concentrate on decisions made by Crown officials pursuant to statute, it is important to realise that it is not just the core public sector which can be subject to judicial review. Many organisations carry out functions formerly performed by the public sector but do so on a commercial basis. Although this does not necessarily protect such bodies from review, the courts will generally be reluctant to review commercial decisions of public organisations.

See

5. The courts also distinguish between public and private decisions made by non-Government organisations and may intervene if such bodies are exercising a public power. It is the public nature of the power being exercised, not the classification of a decision-maker as part of the Crown, or as a statutory body, which will determine whether a body is reviewable.

See

6. Judicial review, as one aspect of

7. Judicial review is however a flexible and potent way in which the courts can control the activities of the executive and safeguard the rights of citizens. Judicial review ensures that public authorities act within the law by defining the principles of law that govern administration, and by safeguarding individual interests against illegal or unreasonable administrative action, or administrative action taken without following proper procedures.

8. The courts cannot however overrule the statute under which a decision is properly made as, in New Zealand, Parliament is the supreme law-making body. Instead, the courts in judicial review concentrate on the actions of the executive. The role of the executive (which includes both the Ministers of the Government and public servants) is both to propose legislation for enactment by Parliament and to implement the laws made by Parliament. The judiciary’s role in judicial review is to interpret legislation and ensure it is correctly applied by the executive. Although the New Zealand courts do not have the power to strike down Acts of Parliament, they can declare regulations and other "subsidiary legislation" to be invalid if such rules are not authorised by an Act of Parliament.

Examples where the Courts would not interfere with Parliamentary processes include

9. The courts are also generally reluctant to intervene in the internal processes of Parliament which fall within the scope of Article 9 of the Bill of Rights Act 1688. See

10. In general, a court will not get involved in questions of policy, as implementing a particular policy is a matter for the executive, especially where the electorate has voted on specific policies.

Recent examples where the Courts have not intervened in policy matters include:

Lumber Specialties Ltd v Hodgson

In

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11. Judicial review is not concerned with the merits of a decision, but with the process by which the decision is made. So long as the processes followed are proper, a court will not interfere with the decision, unless it is clearly an unreasonable one.

12. Sometimes, however, it can be difficult to completely sever the decision-making process from the merits of the decision. As a result, the courts can influence the development of policy and its implementation, which are traditionally the province of the executive. Tensions arise particularly when disputes involve important political, Treaty or human rights issues.

An example is

13. To establish whether the decision-maker has acted properly and fairly, the courts will look closely at the decision-making process. This overriding concept of fairness to all affected parties is critical. Judicial review is a discretionary remedy and even where the grounds of review are established and a decision is found to be invalid, the remedy given or whether any remedy at all is given may ultimately depend upon the court’s view of what is "fair" and "reasonable".

14. The grounds of challenge can be broadly divided into:

These grounds (which contain further subcategories) often overlap and decisions are often challenged on a number of grounds. For example, a decision that is illegal may also be unfair and/or unreasonable. An unreasonable decision is almost always either illegal or unfair.

15. The Judge Over Your Shoulder will also briefly discuss challenges based on breach of the Treaty of Waitangi, international conventions and the New Zealand Bill of Rights Act 1990 (NZBORA). While not grounds for review in their own right, they are often linked with an application for judicial review, and need to be considered by decision-makers.

THE GROUNDS OF CHALLENGE

16. Illegality is another way of saying that the decision-maker got the law wrong. The starting point for this argument is the correct meaning of the words in the legislation and, therefore, the correct scope of the power or discretion they confer. In addition to the specific statute before the court, this will often involve the application of the principles of statutory interpretation, in particular the Interpretation Act 1999.

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17. There are a number of bases upon which a court might hold that actions or decisions have been made illegally. In summary, a decision-maker acts outside the scope of his or her power if:

These grounds are discussed individually below.

FIRST GENERAL GROUND OF REVIEW – ILLEGALITY

ERROR OF LAW

18. It is fundamental that, in making decisions, decision-makers must get the law right and must base their findings on sufficient evidence. The error of law must however be relevant to the decision taken, not a minor technical error.

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ERROR OF FACT

19. Although, in contrast to an appeal, a court on judicial review is not concerned with the factual merits of a decision, it may intervene if a decision is made on the basis of a serious factual error. A mistake of fact must however be central to the decision and an established, incontrovertible fact, rather than a matter which is disputed or where differing opinions are possible.

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20. Decision-makers should therefore be very careful to get the facts right and ensure that their decision is supported by proper evidence. They are, however, entitled to adopt a point of view on the facts when it is possible to reasonably hold differing points of view.

ULTRA VIRES

21. Decisions must be within the powers of the decision-maker; if not they are described as being

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RELEVANT OR IRRELEVANT CONSIDERATIONS

22. A decision-maker must consider all relevant matters and must not take into account any irrelevant matters. Relevant considerations may be categorised as mandatory or permissible.

23. Mandatory considerations will usually be expressly stated in the statute, but some may be necessarily implied because their importance is so obvious. However, as long as each consideration is properly considered, the weight to be given to each will be a matter for the decision-maker. The court will not intervene unless the decision can be categorised as unreasonable (see later discussion).

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24. Permissible considerations may also be express, for example where the statute provides a list of factors which the decision-maker may have regard to. They can also be implicit in an Act, in which case the court will look at the overall scheme and purpose of the Act to find out what other matters may be relevant.

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26. Increasingly New Zealand’s international obligations, the principles of the Treaty of Waitangi and the NZBORA may also be implied as mandatory relevant considerations, even when they are not referred to in the statute. These are discussed separately in later chapters.

RIGID APPLICATION OF A PRE-DETERMINED POLICY

27. A decision-maker is entitled to adopt a general policy as a guide to exercising a discretion, but is not generally permitted to apply that policy so rigidly as to exclude the merits of an individual case. Therefore, although manuals and other departmental guidelines are important in ensuring some consistency of decision making, departmental policies should not fetter any discretion the Act confers.

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See also

ACTING UNDER DICTATION

28. While decision-makers may consult and receive advice from others, decision-makers must personally take the final decision. They cannot abdicate the responsibility for exercising their powers, unless they have formally and properly delegated that power to another person (see paragraph 30). Acting under dictation can happen if decision-makers purport to make the decision themselves, but allow someone else to have a decisive say in the matter, or follow a direction from someone else on how to make the decision. This ground may also overlap with an allegation that the decision-maker is rigidly following a prescribed policy.

Social Security Commission v Macfarlane

29. Other examples of abdicating responsibility for decisions are where the decision-maker has been briefed on what is happening but does not actually make the decision, or where a decision of another person is simply rubber stamped by the decision-maker.

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INVALID DELEGATION

30. Similarly, there will be an invalid delegation if the right person does not exercise the power. If a power has been delegated (for instance from a chief executive to a senior official), there must be clear authority to delegate the power, the delegation should be in writing and must clearly follow the terms of the empowering instrument. Often the statute or regulation itself provides for or prohibits delegation. Section 41 of the State Sector Act 1988 also provides a general power of delegation.

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IMPROPER PURPOSE

31. If a power granted for one purpose is exercised for a different purpose, that power has not been validly exercised. The cases on improper purpose involve scrutiny of the validity of the objectives that the decision-maker seeks to achieve in exercising the power.

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32. Even where a statute appears to confer the widest possible discretion on a decision-maker, the courts will consider that the discretion has not been properly exercised if the decision is outside the purpose or the spirit of the Act. In deciding what that purpose or spirit is, the courts will look at whether the Act expressly sets out its purposes and objects. If these are not expressly set out, the court will look at the Act as a whole, and sometimes also its history and surrounding legislation.

33. A decision made for a proper purpose is not invalid because it also has an ancillary purpose, provided the additional purpose is within the ambit of the Act.

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34. Broadly speaking, this head of challenge covers all questions relating to the manner in which a decision is reached, as opposed to the decision itself. It relates primarily to whether those affected by a decision have been given a fair opportunity to be heard or their views adequately considered. The grounds of review under this general heading, and which are discussed below, include:

35. Inadequate consultation is also often pleaded as a separate ground for review, and will be considered below, although in reality it usually forms part of other grounds, such as breach of natural justice, or legitimate expectation, or failure to consider relevant considerations.

36. Overall "the duty to act fairly" means decision-makers must give adequate opportunity for representations to be made and considered so that they may be fully aware of all the relevant considerations before making a decision. Those making representations must also have adequate information to know the case they have to answer.

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37. What the duty to act fairly amounts to depends upon the facts and circumstances of the case. It relates largely to the nature of the rights affected, and what procedures are necessary to give those affected a proper opportunity to put their case. It may arise as a result of provisions in the statute or because of the nature of the interests involved. It may also arise as a result of an existing practice that the applicant expects will continue, or because of past assurances (which gives rise to a legitimate expectation – discussed at paragraphs 45 to 48).

SECOND GENERAL GROUND OF REVIEW – UNFAIRNESS

NATURAL JUSTICE

38. The duty to act fairly includes ensuring that the procedural requirements of

39. Sometimes, particularly with investigations and inquiries, there may be a duty to permit legal representation and cross-examination of witnesses.

40. If identifiable individual interests are affected, the duty to act fairly will almost always require:

Phipps v Royal Australasian College of Surgeons

In

In

BIAS

41. Another form of procedural unfairness is bias or the appearance or suspicion of it. There will be apparent bias if, in all the circumstances of the case, there is a real danger or real possibility of bias. The test has been variously expressed in recent years, but was recently held to be whether the reasonable observer, aware of all the circumstances would think that the impartiality of the decision-maker might be or might have been affected. Examples of apparent bias include potential conflicts of interest arising from financial interests in the subject matter of the decision, being related to the applicant, or having some past connection with an applicant.

42. Apparent bias may be distinguished from actual bias in relation to the subject matter, which may also form the basis of a challenge on other grounds. If, for example, the decision-maker is prejudiced against members of a particular political party, he or she may be led into taking into account an irrelevant consideration. However, depending upon the wording of the enabling legislation, favouring one class of person over another is not necessarily bias, provided that the decision-maker does not have a closed mind to the circumstances of the particular case.

43. Generally, a decision-maker must not have:

44. However, a party may waive its objection to a decision-maker who would otherwise be disqualified on the ground of bias.

In

Man O’War Station Ltd v Auckland City Council (No 1)

Riverside Casino Ltd v Moxon

LEGITIMATE EXPECTATION

45. In certain circumstances, the duty to act fairly will include an obligation to act consistently with some previous representation, or in accordance with how other similar cases have been treated. This applies particularly where a person’s "legitimate expectations" may be disappointed. A legitimate expectation is relevant only to the process by which the decision was reached. The outcome will not have a bearing on whether or not a legitimate expectation is reasonably held.

46. A legitimate expectation can arise from:

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47. There may also be a legitimate expectation that a decision-maker will take account of New Zealand’s international obligations and the principles of the Treaty of Waitangi. These are discussed further below.

48. In the United Kingdom, courts have on occasion been prepared to accept claims to a "substantive" legitimate expectation, that is an expectation of a certain outcome, not merely a certain process (for example

LACK OF CONSULTATION

49. As noted, lack of consultation or inadequate consultation is often pleaded as a separate ground for review, although it often merges with allegations of failure to take account of relevant considerations, or breach of legitimate expectation, or the general duty of fairness.

50. Sometimes the statute or regulations will specifically provide for consultation with affected parties before a decision can be taken. In these cases, the statutory requirements must be carefully followed. In other cases, consultation is more an issue of good governance or a protection against overlooking relevant considerations or making material mistakes of fact or law, or breaching a legitimate expectation of consultation before a policy is changed.

51. Consultation is not required in all circumstances. There will be times when the decision-makers are already adequately informed of the relevant views of those affected or where a decision is simply a step in a process and does not of itself affect legal rights.

52. It is also important not to confuse consultation with agreement or negotiation. Although decision-makers must approach consultation honestly and be open to changing their minds, they may have a preferred option as a basis for consultation and must be free to make the eventual decision.

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53. There is a strong expectation of consultation with M

In New Zealand

54. In administrative law, a decision-maker must act in a reasonable fashion and the decision must rely on some reasonable basis. To invalidate the ultimate decision as unreasonable, it must be so perverse, absurd or outrageous in its defiance of logic that Parliament could not have contemplated such a decision being made. This principle is often referred to as

55. Even though the decision-maker has apparently considered all relevant factors and closed their mind to the irrelevant, if the outcome of the exercise of discretion is irrational or the decision is such that no reasonable body of persons could have arrived at it, the only proper inference is that the power itself has been misused. The classic example cited is the dismissal of a teacher because she had red hair. Unreasonableness can derive from both the process and the outcome of the decision. On a practical level, decision-makers need to look objectively at what has occurred and be satisfied that a fair and reasonable process has resulted in a fair and reasonable outcome.

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However, over time there has been a selective lowering of the threshold for judicial review based on unreasonableness in New Zealand: In

THIRD GENERAL GROUND OF REVIEW – UNREASONABLENESS

56. Proving unreasonableness is difficult and, in practice, the courts rarely find on grounds of unreasonableness alone. If they find that the decision made was unreasonable, they will almost always find illegality or some procedural unfairness as well.

SUBSTANTIVE UNFAIRNESS

57. Substantive unfairness has been recognised as a legitimate ground of review (

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OTHER IMPACTS ON JUDICIAL REVIEW

58. As well as applying the relevant legislation and general principles of review to the decision-making process, courts are increasingly also considering the application of treaties and human rights legislation to the interpretation of legislation and procedures to be adopted.

59. Treaties include both the Treaty of Waitangi and conventions and other international instruments New Zealand has entered into, but which may not be expressly incorporated into domestic legislation. Decision-makers must therefore bear in mind these provisions as well as the statute under which they are acting. The degree of relevance of these instruments will depend a great deal on the context.

60. The NZBORA has also affected judicial review. The Human Rights Act 1993, as substantially amended in 2001 to bring allegations of discrimination by central government agencies within its scope, is also likely to have a significant impact on public decision-making.

THE TREATY OF WAITANGI

61. The Treaty of Waitangi has traditionally been held to have no independent legal status and cannot be directly applied unless expressly incorporated into statute. An example of incorporation is section 9 of the State-Owned Enterprises Act 1986, which provides that the Crown, acting under that legislation, may not act inconsistently with the principles of the Treaty. Similarly the Conservation Act 1987 requires decision-makers to "give effect to" the principles of the Treaty of Waitangi.

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62. If a statutory provision expresses the principles of the Treaty of Waitangi as a restraint on the decision-maker’s authority, the decision itself, not just the process, is reviewable. This places the obligation on the decision-makers to ensure they have acted reasonably and in good faith, consulted adequately, and the decision does not diminish the Crown’s obligation to protect M

63. A number of other statutes provide that the decision-maker must "have regard to" or "take into account" Treaty principles, which makes the Treaty a mandatory relevant consideration in decisions taken under that Act. In such cases, although decision-makers must give weight to the principles, they do not have to act consistently with them if other factors predominate.

64. This may require consultation with M

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65. Consultation with relevant iwi or M

66. When there is no reference to the principles of the Treaty of Waitangi in the Act, there may be no legal necessity to consider them. The Treaty of Waitangi can be relevant, however, if it establishes one of the previously mentioned grounds of judicial review. This occurs when a legal obligation to consider the Treaty exists because of the context in which the decision is made. The context of a decision is both its factual background and the relevant provisions in other Acts.

Barton-Prescott v Director-General of Social Welfare

67. A decision that is totally inconsistent with the principles of the Treaty of Waitangi may be reviewable on the grounds that no reasonable Minister having regard to the relevant considerations would have reached that decision. The outcome as well as the process can be reviewed. The applicant must first establish the importance of the Treaty to the particular decision.

68. In carrying out its obligations to protect taonga, the Crown does not have to go beyond taking reasonable action in the circumstances. If, however, the court is satisfied that the policy is unreasonable, it can intervene in how the Crown chooses to fulfil its obligations under the Treaty of Waitangi.

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69. The principles of the Treaty of Waitangi have been the subject of considerable discussion, but have been expressed (for example by the Court of Appeal in

INTERNATIONAL OBLIGATIONS

70. International obligations may be implied as mandatory relevant considerations that the decision-maker should take into account, or give rise to a presumption that, where possible, legislation will be interpreted consistently with relevant international obligations. The two approaches are illustrated below.

Tavita v Minister of Immigration

New Zealand Airline Pilots’ Association v Attorney General

71. Weight must therefore be given to the international obligations but they are not necessarily the paramount consideration in making the decision, and other domestic considerations may also be taken into account.

For instance, if a person subject to a removal order has dependent children, the interests of the children are a weighty but not decisive factor see

72. Treaties may be incorporated into domestic law to differing degrees, depending on whether they have simply been signed, but not ratified and, if ratified, whether a statute specifically incorporates aspects of the treaty as New Zealand law, or simply requires that decision-makers have regard to the treaty or specific parts of it. The Ministry of Foreign Affairs and Trade holds information by which agencies can identify all treaties that have been incorporated into New Zealand law.

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73. The rulings of various international tribunals, such as the United Nations Human Rights Committee, may also be a relevant consideration for New Zealand courts, but are not binding.

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NEW ZEALAND BILL OF RIGHTS ACT 1990 (NZBORA)

74. The NZBORA is part of the general law of New Zealand and inconsistency with its provisions may therefore be a ground for judicial review or may found a separate action. Unlike most other grounds of review, review of a decision for breach of NZBORA often requires review of the merits of the decision, not merely of the process undergone to reach that decision. A successful review may also involve an award of compensation.

75. Three requirements must be met before a decision can be held inconsistent with NZBORA:

76. The NZBORA applies to acts done by the legislative, executive, or judicial branches of Government and acts done by any person or body in performing a public function. NZBORA is not entrenched in New Zealand law and ordinary Acts of Parliament can override the rights contained in it (s 4 NZBORA). This means NZBORA cannot invalidate either an Act or the legal exercise of a power conferred under an Act.

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77. The courts may however find that regulations and other subsidiary legislation are

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78. Where decision-making under an Act of Parliament involves an exercise of discretion, it must be consistent with the NZBORA unless the Act explicitly or implicitly allows the Bill of Rights to be infringed (s 6). The broader the discretion, the more likely it is that NZBORA principles can have an impact. The NZBORA is therefore less likely to impact on the law in areas that are already governed by a detailed statutory code.

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79. The rights and freedoms protected are contained in Part II of NZBORA. The courts give these a broad interpretation. The rights that will most frequently be invoked as a ground for review include:

80. Even if a decision infringes a right or freedom, it will not be inconsistent with NZBORA if it is reasonable in a free and democratic society and prescribed by law (s 5 NZBORA).

81. A decision will be "prescribed by law" if the decision-maker’s power to make decisions is conferred by an Act or the common law. This requirement is easily satisfied in most circumstances; it may also be implied.

82. There are no general rules on what is reasonable or justified. This depends on the circumstances in which the decision is made, including economic, administrative and social implications. But the following factors may be considered in determining whether a decision is reasonable in the circumstances:

Decisions were held to have infringed freedoms or rights in the following cases:

Newspapers Publishers Association of New Zealand (Inc) v Family Court

Northern Regional Health Authority v Human Rights Commission

Wilson v New Zealand Customs Service

Decisions which did not infringe freedoms or rights include:

Lal v Residence Appeal Authority

In

Moonen v Film and Literature Board of Review

Federated Farmers of New Zealand Inc v New Zealand Post Ltd

Television NZ Ltd v Attorney-General

83. Even if a decision contravenes the NZBORA and it is an unreasonable and unjustified infringement, it is not a breach of NZBORA if an Act authorises it, either expressly or by implication, since s 4 NZBORA then applies.

Quilter v Attorney General

REMEDIES

84. A breach of NZBORA rights may result in an award of compensation. This is different from judicial review cases, where generally the decision in question is simply quashed or the matter reheard according to law.

85. The courts have held that the NZBORA implies that effective remedies should be available for its breach. Typically, the courts award damages and assess those by taking into account the circumstances of each case. In some cases, the court may be able to quantify objectively an actual loss. In others, it will assess general damages. It will not necessarily award damages for every breach, particularly if the breach caused no loss or would have made no difference to the outcome.

Simpson v Attorney-General (Baigent’s Case)

86. For this reason, a NZBORA claim is often linked in with a judicial review claim – for instance where a breach of natural justice is alleged, both judicial review and a breach of s 27 NZBORA may be claimed. Whether a breach of s 27 NZBORA allows monetary compensation to be awarded in respect of administrative decisions is still to be decided by the Courts. The Crown’s position is that administrative law remedies are sufficient to compensate for any s 27 NZBORA breach.

Binstead v Northern Region Domestic Violence Approval Panel

HUMAN RIGHTS ACT

87. A related avenue for those wishing to challenge the validity of some Government decisions is a claim under the Human Rights Act 1993. Claims are taken to the Human Rights Commission, and if a mediated resolution is not possible then may proceed to the Human Rights Review Tribunal.

88. The Tribunal has a variety of remedies available to it, including a declaration that a breach has been committed, orders restraining further breaches and damages.

89. The Human Rights Act was amended in 2001 to allow members of the public to challenge any Government action, including legislation, on the grounds that it is discriminatory in that it is inconsistent with s 19 NZBORA.

INTERIM ORDERS

91. Interim orders can be a powerful weapon for those who wish to maintain the status quo and can sometimes have significant financial or other consequences. Interim orders will often affect the final outcome, or even make a substantive hearing redundant. Tax assessments, pharmaceuticals, and fisheries management are common areas where delay can create a significant financial advantage to the applicant in review proceedings. Interim orders can also delay the implementation of Government policies for considerable periods.

92. As there is a significantly lower onus of proof on an applicant for interim orders, Government will sometimes undertake not to implement a decision pending an urgent substantive hearing instead of having an interim hearing. Cases that do proceed to an interim hearing will often require considerable preparation to ensure the court is adequately informed before a decision is made.

RELIEF

93. Judicial review is a discretionary remedy, which means that even if a plaintiff establishes that there has been a breach of an administrative law right, the court can decline relief if it decides it is in the overall public interest to do so. This might occur where a plaintiff has unreasonably delayed bringing action; or has acted wrongly, where the right affected is minimal; or where the rights of others will be unduly affected if relief is granted. However, mere administrative inconvenience on the part of the Government will rarely be a reason for declining relief.

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THE PROCESS AND OUTCOME OF JUDICIAL REVIEW

94. If the court finds there has been a breach of an administrative law duty and exercises its discretion to grant relief, it may:

PROCESS

95. The court will find out whether or not the decision has been made lawfully by examining the documents and evidence of relevant decision-makers as well as interpreting the relevant statutes and case law. The first steps in preparing the evidence for a judicial review hearing are usually discovery of documents, followed by an exchange of affidavit evidence by both sides. (Although discovery is not available as of right in judicial review, usually the Crown will agree to it. In many cases, the applicant will in any event have obtained some or all of the relevant documents by way of Official Information Act requests.)

DISCOVERY

96. Discovery involves providing a list of all relevant documents to the other side, the opportunity to inspect those documents, and providing copies of any documents requested. This obligation is in addition to, and separate from, any obligations to disclose that information under the Official Information Act 1982 and often involves slightly different tests for disclosure. It is therefore important not to assume that because something is not available under the Official Information Act, it does not need to be discovered.

97. Everything that is relevant must be made available to the applicant and the court, unless it can be withheld because it is privileged (such as legal opinions and advice obtained once litigation is underway or contemplated). Very rarely a document may also be withheld if it is subject to public interest immunity, usually where it involves very sensitive security material.

98. Officials should therefore work on the assumption that whatever they write may be closely examined by judges and lawyers to see whether the decision was properly made. This may include emails and informal comments on papers, including drafts. It is therefore very important to avoid comments that can be used later and prove embarrassing in court.

99. Discovery will involve the relevant officials providing all potentially relevant documents held in their offices and other departments as well as those of their Ministers, to their lawyers. This may include:

100. Where there is any doubt as to whether a document is relevant or privileged, it must be fully discussed with the lawyers. The responsible official will then be required to swear an "affidavit of documents" listing the discovered documents (both privileged and not privileged) and stating that all relevant documents have been discovered.

AFFIDAVITS

101. Evidence is generally given by affidavit in judicial review proceedings. Typically, the affidavit(s) for the Crown will outline the steps taken and reasons for a decision and will usually include an affidavit from the actual decision-maker (except in the case of a judicial officer, where the judgment speaks for itself and a judge will not usually give direct evidence).

102. Cross-examination is not permitted as of right in judicial review proceedings. Occasionally the judge may give leave to hear oral evidence where there is a material conflict of evidence and cross-examination is necessary to resolve the issues, but there is a convention that courts will not order Ministers or judicial officers to give evidence arising from their roles as decision-makers.

Goodman Fielder Ltd v Commerce Commission

GETTING THE PROCESS RIGHT

103. The best way to try to prevent judicial review proceedings being brought or being successful is to ensure proper processes are adopted throughout. Where in doubt as to the correct process, it is important to seek legal advice before a decision is made, as this should save a great deal of expense, time and potential embarrassment to the Government in the long run.

CONSULTATION

104. One way to reduce the possibility that a decision will be the subject of a successful judicial review is to consult those who may be affected. As indicated earlier, the appropriateness and extent of consultation will depend on the facts of each case. In general, give early notice of the proposed decision, and provide reasonable information including the reasons, factors to be considered, and the material relied upon. Often consultation occurs before any tentative conclusion is reached, but consultation may also be held on proposed action. Before making a decision, give adversely affected persons a fair opportunity to comment, as well as proper consideration to those representations.

105. If the decision-maker intends taking a different course from one recommended, adversely affected parties may need to be consulted and given another opportunity to comment. The decision-maker may also make a decision for reasons other than those on which the recommendations are based. In that case also, it is prudent to explain the approach to the decision to those affected.

106. The courts do recognise that public consultation can attract submissions from interest groups and that the "silent majority" may not participate, either because of indifference or because of satisfaction with the status quo. The mode and extent of consultation will therefore vary. In some cases, it may be confined to an opportunity to make written submissions; in others, more proactive meetings, advertising and other methods may be necessary. In all cases, the decision-maker is required to keep an open mind but need not yield to the sheer weight of numbers.

PREPARING THE RECOMMENDATIONS

107. Although traditionally there is no general principle of law that reasons should be given for decisions, reasons are increasingly required by statute and the courts have indicated that in some circumstances (eg where an unexplained decision might result in injustice or prejudice to a party), failure to give reasons might be regarded as a breach of the duty to act fairly. Also, courts may be more likely to accept an explanation for a decision that is reflected in contemporaneous reasons than one that appears much later in response to proceedings.

108. The Official Information Act is also relevant, in that s 23 of the Act gives requestors the right to be supplied with a written statement of the reasons for any decision affecting them. It is imperative that a full statement of reasons can be drawn from the papers.

109. In any event, decision-makers or officials preparing recommendations should carefully formulate the reasons for a recommendation or decision because those reasons will usually be critical to the outcome of any judicial review, particularly if the decision-maker makes a decision for reasons different from those initially put forward.

110. In some circumstances, the courts may infer from the absence of reasons that there were no good reasons for a decision. The Court of Appeal has said that if there is no evidence that a relevant matter was taken into account, the court will draw the inference that it was not.

111. To avoid such inferences or an application for the court to grant leave for cross-examination, it is vital that the papers reflect all the relevant considerations taken into account and the reasons for the decision. They should also show that the appropriate parties were properly consulted and their representations considered. If the ultimate decision-maker does not accept the recommendation in its entirety or the reasons set out, that divergence and the reasons for it should be briefly recorded, either on the recommendation itself or in a letter of advice to the affected party. Care should be taken to ensure that the decision-maker’s reasons are proper, and that affected parties are not prejudiced by the divergence without being given the opportunity to comment first.

112. To ensure the duty to act fairly is complied with, take the following steps wherever possible when identified individual interests are adversely affected:

113. The letter advising a person of the outcome of the decision is the document that may result in a visit to the lawyer. A recipient is likely to feel less aggrieved at an adverse decision if it is clear from the letter that his or her arguments were considered, and reasons for the decision are provided. If the matter is subsequently taken to court, the letter from the decision-maker is the best evidence of the reasons in the decision-maker’s mind. It becomes particularly important where departmental recommendations are simply noted "Approved" by the decision-maker.

114. If the decision-maker accepts the recommendation in its entirety, the simple approach may be to send a brief letter attaching the recommendation and stating "I decline your application for the reasons set out in the department’s recommendation", providing the recipient has access to that paper. This also avoids the risk of omitting something important in an attempt to summarise the position. If the decision-maker’s reasons differ in some respects from the recommendation, the letter might attach the recommendation but explain where those differences lie. The letter should also record that the decision-maker has considered the various submissions, and list them.

115. The courts have identified a number of purposes in giving a statement of reasons:

FURTHER INFORMATION