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Last Updated: 22 August 2023
A Non-Doctrinal Jaunt Through Judicial Review
31
A Non-Doctrinal Jaunt Through Judicial Review
Philip A Joseph*
This article articulates one person’s understanding of judicial review. It is written from a non-doctrinal perspective that casts aside the shibboleths of standard administrative law scholarship. I found writing the article refreshingly therapeutic. From time to time, it is beneficial to step back from the minutiae of one’s researches and take stock of the broader landscape. We, as academics, are prone to tunnel in on the intestacies of legal doctrine and reorganise our subject-matter in fragmented, disconnected parts. This article checks that tendency by taking a broader, holistic look at the landscape of judicial review. This approach complements the inherent, discretionary and contextual nature of judicial review, and the courts’ declared commitment to keep it “relatively simple, untechnical and prompt”.1 Law students might take a less sanguine view. They are deluged with judicial review decisions, academic writings and extra-judicial preponderances, and are plied with all sorts of theories about judicial review. The literature is voluminous. However, this article does not seek to burden law students further. It presents a simplified narrative of what the courts do in judicial review. The New Zealand jurist, Robin Cooke, distilled the elusive quest when he titled his seminal paper, “The Struggle for Simplicity in Administrative Law”.2This article reflects upon the fundamentals of judicial review. It proffers why some applications for review succeed and others do not. The article also suggests how judicial review pedagogy might be honed in modest ways. There is, in every field of law, continuing need to revisit our understandings of pedagogy. I do not claim that everything that follows is
* Professor of Law, University of Canterbury, New Zealand.
353. Numerous courts have repeated those words: Association of Dispensing Opticians of New Zealand v Opticians Board [1999] NZCA 182; [2000] 1 NZLR 158 (CA) at [19]; Edwards v Toime [2005] NZAR 140, (2003) 7 HRNZ 213 (HC) at [20]; Wilson v White [2004] NZCA 191; [2005] 1 NZLR 189 (CA) at [25]; Commerce Commission v Powerco Ltd CA123/06, 9 November 2006 at [36], [40]; Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [342]; Orlov v New Zealand Law Society [2012] NZCA 12 at [21]; and Attorney-General v Kim Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39].
32 Otago Law Review (2021) Vol 17 No 1
received orthodoxy. This article records my own eclectic understanding of judicial review resulting from my researches conducted over many years.3
II Inherent jurisdiction
A Historical provenance of inherent jurisdiction
An examination of judicial review logically begins with the High Court’s inherent jurisdiction. Judicial review entails the exercise of jurisdiction that is inherent, not prescribed, which sets apart judicial review from most other areas of the law. Applications for review are filed in the High Court,4 a court of general jurisdiction exercising inherent and statutory jurisdiction. “‘[I]nherent jurisdiction’ ... connotes an original and universal jurisdiction not derived from any other source”.5 This jurisdiction has an impressive history that can be traced to the reign of the Norman Kings and the splitting up of the Curia Regis (King’s Council). In an earlier article,6 I explained how this early history bestowed legitimacy on the High Court’s jurisdiction to review. I began with a hypothetical exchange between two colleagues. Colleague Y explained that the doctrine of ultra vires and presumed parliamentary intent were false gods and could not accord legitimacy to judicial review:7
Colleague X: Then how might the courts legitimise their review
powers?” Colleague Y: “Their powers are inherent. The courts
are the
third arm of government. They are invested with authority to develop
the law
and they will be guided by their own intuition of
what justice and the rule of law require.”
Colleague X: “But the courts’ functions have changed profoundly over
time.”
Colleague Y: “Quite. Their powers evolved as the constitutional balance began to shift. In the Middle Ages, they upheld the dominant Royal power (the King); then they acted as a counterweight in the contest between Crown and Parliament. When Parliament finally won that contest, they turned to securing the individual against official interference or abuse.”
Courts” above n 3.
7 At 354-355.
A Non-Doctrinal Jaunt Through Judicial Review 33
Colleague X: “So you contend that judicial review is simply the birthright
of the superior courts?”
Colleague Y: “Exactly. Their review powers date from around the thirteenth century. The ultra vires doctrine is, to parody Bentham, ‘rhetorical nonsense – nonsense upon stilts’. The courts claim constitutional justification as the guardians of the rule of law.”
The administrative lawyer, Stanley de Smith, laconically mused that judicial review “has significant roots in history.”8 The inherent jurisdiction has a historical provenance that draws on the origins of the common law courts. By the end of the thirteenth century, increasing specialisation within the Curia Regis caused it to unravel, resulting in the emergence of three royal law courts of justice – the Court of Common Pleas, the Court of Exchequer, and the Court of King’s Bench. The three Courts exercised distinct but complementary jurisdictions, except that the Court of King’s Bench assumed jurisdiction to supervise the proceedings of other courts (local and royal) and diverse persons and bodies exercising official functions. The King’s Bench originated as a judicial session of the inner Curia Regis, held in the presence of the King, and discharged quasi-governmental judicial functions.9 In time, the Judges ceased to be members of the Curia Regis and discharged purely adjudicatory functions, albeit in the name and service of the King.
The review jurisdiction emerged from these early times. Once established as a court of judicature, the King’s Bench set about consolidating its control over inferior courts, itinerant justices, and sundry officials and tribunals, whose decisions had been made irregularly or without jurisdiction. By the end of the seventeenth century, the King’s Bench had securely established the basic principles of judicial review.10 The Court developed in tandem the great prerogative writs of habeas corpus, quo warranto, prohibition, certiorari, and mandamus.11 These writs gave especial meaning to the Latin expression ubi jus ibi remedium
– where there is a right, there is a remedy. These writs facilitated the
34 Otago Law Review (2021) Vol 17 No 1
development of judicial review, but they did not supply the full suite of public law remedies. In the nineteenth century, the King’s Bench appropriated from private law the ordinary remedies of injunction and declaration to supplement the ancient writs.
The inherent jurisdiction of the King’s Bench travelled with the expansion of empire. The first courts established in New Zealand were authorised to exercise the common law and equity jurisdictions of the Superior Courts in England, which included the inherent jurisdiction to review.12 Statutory reforms over the past 50 years have streamlined judicial review procedures but have not transformed the Court’s inherent jurisdiction. The Judicature Amendment Act 1972 introduced a composite procedure – called an “application for review” – to avoid the injustices that resulted from an applicant having selected the wrong remedy.13 An application for review required applicants to identify the nature of the relief sought rather than nominate by name the particular remedy. It established one overall remedy where one or more of the prerogative or ordinary remedies were available. The Judicial Review Procedure Act 2016 replaced and modernised the Judicature Amendment Act 1972 and the application for review procedure. These statutes effected major procedural innovations but did not alter the scope of the ancient writs or the Court’s inherent jurisdiction.
B Judicial disciplines
The High Court’s inherent jurisdiction acknowledges the illusory limits of judicial review. The Court’s only restraints are those it reposes upon itself. It has jurisdiction to determine the limits of its own jurisdiction, subject only to rights of appeal and any statutory limits as Parliament may impose.14 However, the inherent nature of its jurisdiction does not make the judicial task unconstrained and free. Several factors inform the options in judicial review: “the judge’s knowledge and experience of the law, the disciplines of the judicial role, the professional expectations on judges, judicial peer pressure, and the commitment to do practical justice”.15 In a successful judicial review, the judge will set out the facts
New Zealand Waterside Workers’ Federation Industrial Association of Workers v Frazer [1924] NZLR 689 (SC) at 707; and Re Kestle (No 2) [1980] 2 NZLR 353 (CA) at 358. Statutory privative provisions seldom succeed in ousting the High Court’s review jurisdiction: see H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 (discussed below).
15 Joseph (2021), above n 3, at 22.4.5.
A Non-Doctrinal Jaunt Through Judicial Review 35
and context of the case and explain how the decision-making faltered
and why the court must intervene.
Democracy imposes limits to the acceptability of judicial review.16 Parliament mandates public decision-makers to develop policies and guidelines in administering statutory schemes, and the courts refrain from intruding upon their specialist functions. The courts readily defer when called upon to review public decisions involving: polycentric considerations,17 considerations of national security,18 the allocation of national resources,19 or national political or policy considerations.20 The exercise of inherent jurisdiction is constrained by the limitations of the judicial role and the courts’ respect for the functional expertise of specialist decision-makers. The courts are pragmatically cautious and defer rather than overreach the judicial remit.
III Justiciability/reviewability
A Kindred concepts
“Justiciability” and “reviewability” are kindred concepts that may be used interchangeably. That was not always so. For a period last century, the term “justiciability” denoted “no-go” zones in judicial review, where the courts could not (or would not) intervene. They ring-fenced areas of public administration and declared them to be non-justiciable. The courts determined that certain subjects of public decision-making were off-limits and not open to judicial scrutiny. The concepts of jurisdiction and justiciability were conflated to create a judicial review Alsatia.
36 Otago Law Review (2021) Vol 17 No 1
In the ensuing years, the courts reappraised their role in accordance with changing social expectations. They prised apart the expressions “jurisdiction” and “justiciability”, and treated these as distinct concepts conveying different things. Jurisdiction identifies the court’s power to intervene in judicial review, while justiciability identifies the appropriateness to intervene. Today, no area of public administration is immune from judicial review per se: “There is no such thing as an unreviewable exercise of government power.”21 The High Court is apprised of jurisdiction to adjudge all public decision-making and rule whether or not it falls within the lawful powers of government.22 The subject-matter of administrative discretion does not affect jurisdiction but rather the reviewing court’s decision whether or not to intervene. Is the subject-matter of the impugned decision justiciable (that is, appropriate for curial intervention)? The senior courts respect the institutional differences between the branches and typically defer over decisions involving national security, allocation of national resources, or national political or policy considerations.23
B Modern preference
The preference today is to use the term “reviewability” rather than “justiciability”. The latter expression too readily conjures images of when the courts clung to no-go zones in judicial review. The expression “reviewability”, in contrast, is not tainted by any past association. It denotes amenability to review which focuses on the nature and consequences of the exercise of power. Over the past 50 years, the courts have progressively removed former impediments to judicial review
A Non-Doctrinal Jaunt Through Judicial Review 37
and broadened the range of persons or bodies that are amenable to the supervisory jurisdiction. Applications for review may lie against: ministers of the Crown, heads of government departments, lower courts, statutory bodies, Crown entities, state-owned enterprises, local authorities, incorporated bodies, unincorporated domestic bodies, non-statutory regulatory bodies, royal commissions/commissions of inquiry, and even private organisations.24 In principle, all exercises of public power are reviewable, whether the power be sourced in statute, the royal prerogative, the common law or contract.25 The focus is on the nature of the impugned decision and its consequences, not the source of power that is exercised.
Modern courts have discarded former doctrinal complications and developed easily digestible principles of judicial review.26 The test of reviewability is non-formalist and simply expressed: is the exercise of power “in substance ... public” or does it have “important public consequences”?27 Even the exercise of non-legal powers is reviewable if it has public consequences or the powers are public in nature. It is no longer a requirement that decision-makers be “empowered by public law” to be susceptible to review. 28 A power that is de facto and assumed, as part of a non-statutory regulatory regime, may entail the exercise of public power that is reviewable.29 Similarly, the exercise of contractual power may be reviewable if the decision-making has a public “dimension”.30 In Air Nelson Ltd v Minister of Transport,31 a ministerial pricing decision was reviewable as it had a dual commercial and regulatory focus involving a “public law aspect”.
Decisions of a commercial nature will seldom be reviewable. Trading
judicial review of the listed persons or bodies.
11. See also Wilson v White [2004] NZCA 191; [2005] 1 NZLR 189 (CA) at [21]; Air Nelson v Minister of Transport, [2008] NZCA 26, [2008] NZAR 139, at [33]; and Lab Tests Auckland Ltd v Auckland District Health Board, above n 1, at [351].
38 Otago Law Review (2021) Vol 17 No 1
functions under contract will typically lack the necessary public law “dimension” or “aspect”. Such functions include entering into or terminating commercial supply contracts for goods or services. Commercial decisions may be reviewable in two situations only: where there is evidence of fraud, corruption or bad faith,32 or where the impugned decision is affected with a public interest. In Ririnui v Landcorp Farming Ltd,33 the Supreme Court held that Landcorp’s tendering of land for sale was reviewable on broader grounds than fraud, corruption or bad faith. The tender process was affected with a public interest; Landcorp had an arrangement with the Crown to make available former Crown lands to be used in Treaty of Waitangi settlements.
The law defining reviewability illustrates the flexibility of judicial review. The courts flex their judicial review powers according to the justice of the case, not hard and fast rules. The drivers of judicial review are: discretion,34 overall evaluation,35 context,36 and the instinctual nature of the judicial role.
IV Instinctual nature of judicial review
A Inarticulate premise
The defining characteristics of judicial review (discretion, overallevaluation and context) make it an instinctual exercise. We should ask:37
What is the true catalyst in judicial review? What moves a court to say that a decision cannot stand and must be set aside? Is it principles, doctrine or curriculum, or something more basic and intuitive? Experience suggests the latter.
The instinctual nature of the forensic exercise is the inarticulate premise of judicial review. R v Panel on Take-overs and Mergers, ex parte Guinness plc38 is a stand-out decision that seized upon the inarticulate
182 (HL) at 190; and Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209 (HC) at 236.
37 Joseph (2021), above n 3, at 22.4.1.
38 R v Panel on Take-overs and Mergers, ex parte Guinness plc [1990] 1 QB 146 (CA).
A Non-Doctrinal Jaunt Through Judicial Review 39
premise: “whether something had gone wrong of a nature and degree which required the intervention of the court, and, if so, what form that intervention should take.”39 Lord Donaldson of Lymington termed this the “innominate ground” of review,40 although it was more a methodological prescription than a substantive ground of challenge. Donaldson himself styled his question, “the ultimate question ... as always”.41
Courts in judicial review will occasionally couch their judgments in the language of Lord Donaldson’s simple but penetrating question. In Pora v Attorney-General,42 the inarticulate premise of judicial review became the articulate premise. Counsel adopted Lord Donaldson’s question, “has something gone wrong?”, and treated it as an abridgement of the grounds of review pleaded in the statement of claim. Counsel submitted in oral argument that “it was ‘of no real moment’ to isolate any particular one of them.”43 “The central contention,” observed the Court, “was ... that ‘something in public law terms has gone terribly wrong’ and Mr Pora has, thereby, suffered ‘a new and different injustice’.”44 The Court agreed and granted the declaration sought.45 The Court of Appeal adopted a similar approach in Financial Services Complaints Ltd v Chief Ombudsman.46 The Court rehearsed Lord Donaldson’s question and resolved that the decision-making errors were “of a nature and degree that warrant judicial intervention”.47 Again, it was the instinctual response, not the pleaded grounds of review, that drove the Court’s decision.
B Robin Cooke: judicial lodestar
The question, “has something gone wrong?”, takes us to the heart of judicial review. The forensic exercise is “inherently discretionary”,48 and cannot be reduced to formulaic rules for producing predictable and mechanical outcomes. Forty years ago, Sir Robin Cooke signalled the move away from fixed principles of legality in favour of a more flexible, integrated approach to judicial review. In AJ Burr Ltd v Blenheim Borough
39 At 160.
40 At 160. See Joseph (2021), above n 3, at 24.6.4.
44 At [80] (quoting from counsel’s written submissions). 45 At [138].
46 Financial Services Complaints Ltd v Chief Ombudsman [2018] NZCA 27,
[2018] NZCA 27; [2018] 2 NZLR 884.
47 At [56].
48 London and Clydeside Estates Ltd v Aberdeen District Council, above n 34, at
190; Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209 (HC) at 236.
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Council,49 his Honour explained the need for “overall evaluation”: “The determination whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation.”50 The methodology of overall evaluation lends transparency to the forensic process and underscores its discretionary nature. Sir Robin emphasised the specific factual and interpretive issues and down-played refinements in the background doctrines of administrative law.51 For him, the “governing factors” were “statutory interpretation” and “the judicial attitude of mind”.52 He applauded the innominate ground coined by Lord Donaldson in Ex parte Guinness, as “capturing the essence of the law of judicial review”.53 Has something gone wrong, and, if so, what should be done about it?
Robin Cooke displayed penetrating insight last century when he reflected on judicial review. No New Zealand jurist has had greater impact during my lifetime as a legal academic. His doctoral studies at Cambridge brought home the distracting formalism that was choking judicial review.54 It was he who counselled courts to keep judicial review “relatively simple, untechnical and prompt”.55 He espoused judicial directness and honesty of mind over the formal trappings of pedagogy and legal doctrine. He championed the simple construct of reviewable error of law over the doctrines of ultra vires and jurisdictional/non- jurisdictional error. These arcane doctrines had fixed the parameters of judicial review throughout the middle years of last century. Robin Cooke’s influence was also felt in another telling way: he led the transformation away from the old dichotomies that posited binary choices in judicial review.
A Non-Doctrinal Jaunt Through Judicial Review 41
Nine judicially constructed dichotomies dominated administrative law method following the Second World War (1939–1945). These were: jurisdictional v non-jurisdiction error, judicial v administrative decisions, legal v non-legal interests, statutory v prerogative power, void v voidable error, ministerial v non-ministerial decisions, mandatory v directory directions, standing v non-standing, and public v private bodies.56 These dichotomies posited “either”/ “or” doctrine. A case either fell into category X, or it fell into category Y: there was nothing between. How the court categorised the case predetermined the outcome. If a court ruled an administrative error jurisdictional, the applicant succeeded. But if it ruled the error non-jurisdictional, the applicant failed. Only jurisdictional error triggered the ultra vires doctrine. By the end of the 1970s, it was dawning on the courts that these dichotomies were “misleading”, “not easily fitted to the requirements of administrative law”.57 They had forced courts to cramp cases into rigid legal categories – categories that were “mutually exclusive and starkly contrasted”, “invented by lawyers for the purposes of convenient exposition.”58 Robin Cooke was in the vanguard in dispensing with the binary “either/or” approach to judicial review.
C Why some challenges succeed and others fail
I caution public law students never to be drawn into predicting the outcome of judicial review challenges. Clients seeking reassurance will often ask: “Will we win?” Second-guessing such outcomes is a precarious and ill-advised exercise. That is because of the mix of discretion, overall evaluation and contextual idiosyncrasy in judicial review, and the instinctual nature of the forensic exercise: applicants will succeed only if they trigger the instinctual response that the decision-making has misfired, calling upon the court’s intervention. The judge instinctively asks: “Has something gone wrong, and, if so, what should be done about it?” In one case, the Judge entered the courtroom, acknowledged counsel, took his seat and said: “Subject to what the Crown has to say, I can see no answer to this challenge.”59 The case on the papers had triggered the required instinctual impulse.Many applications for review fail to trigger the necessary reaction.60
58 At 189–190.
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When this occurs, no amount of persuasive advocacy will cause the judge to uphold the applicant’s challenge. The case may be cleverly constructed, adroitly argued and persuasively supported, but it will falter on the need to show that the decision-making had misfired. The judge has several fall-back positions to justify a decision not to intervene:61
The Judge will rehearse the orthodox language of the law to show why cause to intervene was lacking. The issues may: be non-justiciable, warrant deference to the decision-maker, be more suited for determination in another forum, or be dealt with fairly notwithstanding an initial error or defect.
It is axiomatic that a reviewable error must satisfy the materiality test. The courts will not be drawn by errors having minor or technical effect. The error must, in a qualitative sense, affect the outcome of the decision- making: it must be “an error in the actual making of the decision which affected the decision itself”.62 An error or defect having minor or technical effect will not cause a judge to say, “Something has gone wrong which calls for curial intervention.”
D Grounds-of-review framework
The instinctual nature of judicial review raises questions about the grounds-of-review framework that has anchored administrative law pedagogy, at least since the House of Lords decision in Council of Civil Service Unions v Minister for the Civil Service.63 It has been customary to organise judicial review and the framing of cases around the three established grounds of review – illegality, irrationality (or unreasonableness) and procedural impropriety.64 Counsel typically set out in their statement of claim the pleaded grounds of review, and direct their written and oral submissions to establishing each of the grounds. The framework has provided a useful taxonomy in a field of public law that has undergone transformative change over the past 60 years.The grounds-of-review framework filled the vacuum created by the
systematic culling of the formalist doctrine of last century. The self-
A Non-Doctrinal Jaunt Through Judicial Review 43
evident concept of reviewable error of law replaced ultra vires as the central plank of judicial review.65 This relieved courts of the need to distinguish between jurisdictional error (which was reviewable) and non- jurisdictional error (which was not reviewable). Distinguishing between the two types of error had become an increasingly artificial and arbitrary exercise. The courts also began unpicking the many dichotomies that had reduced judicial review to binary choices that predetermined the outcome of cases. The transition to an evaluative, contextual approach swept aside doctrine that had sought to portray administrative law as rigorous, analytical and “respectable”.66 The grounds-of-review framework Lord Diplock formalised in Council of Civil Service Unions gave structure to an otherwise barren pedagogical landscape.
The question now is whether the grounds-of-review framework retains its former utility.67 If judicial review is truly instinctual and intuitive, need applications for review be conceptualised according to grounds of review? Possibly not. The High Court decision in Pora v Attorney- General68 exemplifies a more holistic approach to decision-making error. In oral argument, counsel discarded the pleaded grounds of review in the statement of claim and advanced the unadorned proposition: “something in public law terms has gone terribly wrong”.69 The Court accepted counsel’s submission and granted the relief sought. The Court made no attempt to align the decision with a pleaded ground of review: it bypassed the grounds-of-review framework under a more direct and penetrating analysis of the decision-making error.70 The Court of Appeal, too, has adopted Lord Donaldson’s instinctual approach to decision-making error. In Financial Services Complaint Ltd v Chief Ombudsman,71 the Court found the decision-maker had improperly fettered discretion and failed to weigh relevant considerations. The Court concluded: “The errors we have identified in the decision under review are in our assessment of a nature and degree that warrant judicial intervention.”72
A retreat from the grounds-of-review framework would herald a further transformational change in judicial review. Such a move would complete Sir Robin Cooke’s quest, “The Struggle for Simplicity in
69 At [80].
70 Joseph (2021), above n 3, at 22.4.4.
71 Financial Services Complaint Ltd v Chief Ombudsman, above n 46. 72 At [56].
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Administrative Law”.73 However, the possibility of this happening is remote. While the “instinctual response” might be the driver in judicial review, there is no indication the courts would abandon the grounds-of- review taxonomy for analysing decision-making error. There seems no judicial appetite for a doctrinally untrammelled law of judicial review.
V Error of law versus error of fact
A Context
Dealing the quietus to the ultra vires doctrine was the breakthrough in administrative law last century.74 The intense and sometimes acrimonious debate over the doctrine in the closing years of last century eventually forged a new consensus:75 material error of law was the conceptual basis and appropriate standard of review.76 This was a timely and welcomed development, but it left unanswered one question: judicial review lies for material error of law but does it also lie for material error of fact? The courts tend to treat errors of law and of fact as being qualitatively different.Before the Supreme Court was established, the Court of Appeal had divided over the question.77 In the 1980s, Cooke P repeatedly proclaimed mistake of fact as an independent ground of review, while Richardson J disagreed or reserved judgment.78 The contest was whether mistake of fact was a discrete ground in its own right, or a particular manifestation of “error of law” review. In Bryson v Three Foot Six Ltd,79 the Supreme Court resolved that contest in favour of error of law review. In Lewis v Wilson & Horton,80 the Court of Appeal had warned that the High Court was not permitted to reopen determinations of fact on applications for
73 Sir Robin Cooke, above n 2.
74 See Joseph (2021), above n3, at 22.8.1–22.8.2.
77 See Joseph (2021), above n 3, at 23.5.5(1).
A Non-Doctrinal Jaunt Through Judicial Review 45
review. It might intervene only where the decision of fact was a condition precedent to the exercise of power (a “jurisdictional fact”), or the error of fact resulted in a decision that was unreasonable. In Bryson, the Supreme Court endorsed that approach and subsumed mistake of fact within error of law review. The Court set an exacting threshold before mistake of fact would metamorphose into error of law. A finding of fact had to be so insupportable, or so untenable, that “proper application of the law require[d] a different answer”.81 There was no jurisdiction to upset a factual finding that had a rational basis and was reasonably supported (where one of two or more tenable inferences may be drawn from the facts). The Bryson threshold counsels against judicial second-guessing of factual findings, which are part of the discretionary decision-making reserved to the specialist decision-maker.
Does that approach withstand scrutiny? Possibly not on two counts: the law/fact distinction is an unstable one, and errors of fact may be as damning for decision-makers as errors of law.
B Unstable distinction
Joseph on Constitutional and Administrative Law82 explains that the distinction between error of law and error of fact is inherently unstable. In E v Secretary of State for the Home Department,83 the Court of Appeal of England and Wales alluded to the “notorious difficulty” of distinguishing between errors of law and of fact. Bryson v Three Foot Six Ltd84 encapsulates the instability of the distinction: an unsupported finding of fact may be so untenable as to be reviewable as an error of law (error of fact metamorphoses into error of law). Where a decision-maker fixes rent for dwelling houses and it erroneously fixes rent for business premises, it may have made an error of law (it may misinterpret its powers) or of fact (it my wrongly classify a building as a dwelling). The criminal law, in particular, has struggled over mistake of law and mistake of fact.85 X purchases grass clippings believing them to be cannabis and is charged with attempted possession of a controlled substance. Question: Is this a mistake of fact or of law? Answer: It is both. It is a mistake of fact because grass clippings are not in fact the prohibited substance (factual impossibility), but it is also a mistake of law because it is not in law an offence to possess grass clippings (legal impossibility). This exposes the
46 Otago Law Review (2021) Vol 17 No 1
illogic of holding that X may be convicted of attempted possession if the offence is factually impossible but not if it is legally impossible
C Dispensing with the binary classification
Dispensing with the binary classification would rid the law of a problematic distinction. Howsoever one classifies decision-making error is of no consequence. The crucial matter is whether the error materially (that is, directly and causally) affects the decision-making outcome. In Ririnui v Landcorp Farming Ltd,86 two Judges cast aside the distinction and emphasised materiality as the determining criterion. For Elias CJ and Arnold J, the Crown’s error was reviewable as it had a direct and causal impact on the decision-making. Their approach dispenses with the linguistic sparring over the binary classification and rids administrative law of a false dichotomy.For a period last century, administrative law was riddled with false dichotomies that complicated judicial review. I listed above nine dichotomies when recording the imprint Robin Cooke left on New Zealand’s administrative law.87 These dichotomies finally succumbed to the purge that simplified the law of judicial review, except for the “error of law versus fact” distinction. This dichotomy should now be read its last rites. The approach of Elias CJ and Arnold J in Ririnui is eminently more sensible than sparring over an unstable distinction. An error that materially affects the decision-making outcome, howsoever it is classified, should be reviewable.
VI Landmark decision
The Supreme Court decision in H v Refugee and Protection Officer88 is a landmark decision on two counts: it makes a stark statement on the putative sovereignty of Parliament, and it recalibrates the law on privative clauses and de novo appeals.
A Of parliamentary sovereignty
(i) Parliament’s interpretive instructionUpon entering the country’s law schools, students are inculcated with statements about Parliament’s sovereignty and the courts’ correlative duty of obedience. The courts must take Parliament’s legislation, interpret it, and apply it dutifully, according to its text, purpose and
A Non-Doctrinal Jaunt Through Judicial Review 47
context. Parliament’s interpretive instruction is caustically blunt: “The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.”89 That instruction is marvellously free of ambiguity: the courts must have regard to text, purpose and context in ascertaining the meaning of legislation. Now consider the decision in H v Refugee and Protection Officer.
(ii) The decision
H applied under the Immigration Act 2009 for refugee status and provided a personal statement in support. The Refugee and Protection Officer (RPO) scheduled an interview and informed H that it was important he attend. He was required to supply a medical certificate if he was unable to attend for medical reasons. The day before the interview, H fell ill and obtained a doctor’s certificate which H’s lawyer forwarded to the RPO. The RPO issued his decision two days later, declining H’s claim for refugee status. The RPO resolved that H’s medical certificate did not meet the Department’s standard-form criteria and ruled that he had failed to attend the interview. H’s lawyer complained and the Refugee Status Branch (RSB) accepted that the RPO’s decision was harsh but ruled that the Immigration Act 2009 did not permit an RPO’s decision to be re-opened once made. H’s only recourse was to appeal the decision to the Immigration and Protection Tribunal (Tribunal). H sought judicial review of the RPO’s decisions to refuse to accept the medical certificate and to decline H’s application.
The High Court dismissed H’s application for want of jurisdiction,90 and the Court of Appeal dismissed an appeal from that decision.91 The Supreme Court gave leave to appeal and held in the substantive appeal that it was not deprived of jurisdiction to hear and determine the judicial review appeal. That ruling threw into sharp relief two sections of the Immigration Act 2009: s 195 confers a de novo right of appeal to the Tribunal against an RPO decision,92 and s 249 enacts a privative clause prohibiting proceedings for judicial review unless a s 195 appeal has been made and completed. Section 249(1) reads:
249 Restriction on judicial review of matters within Tribunal’s jurisdiction
(1) No judicial review proceedings may be brought in any court in
respect of a decision where the decision (or the effect of the
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decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.
What do those words mean? They contain no ambiguity: no court may entertain proceedings for judicial review unless and until the Tribunal has heard and determined an appeal against the RPO’s decision. In H there had been no appeal. Yet, the Supreme Court reinstated the proceeding for judicial review and remitted it to the High Court for hearing.
(iii) Privative clauses and parliamentary sovereignty
The decision in H is a ruling sub silentio on constitutional fundamentals. Privative clauses raise issues “of constitutional concern” that fashion the judicial response.93 The courts treat with scepticism statutory commands that they refrain from ruling on the legality of public decision-making. By seeking to oust judicial review, privative clauses tamper with the established relationship between courts and Parliament and the constitutional balance it secures.
H is one in a long line of decisions where the courts have refused to be “red carded”.94 The decision speaks the lie to what law students are grandly told about parliamentary sovereignty. If Parliament is omnipotent and its word is “law”, it is only because the courts say it is. Even committed sovereignty theorists accept that it is the responsibility of the judicial branch to say what the law is.95 The courts are the authoritative and final expositors of legal meaning and will not be drawn by statutory commands to renounce their historic jurisdiction to review. They pay lip service, at best, to the possibility that a privative clause might achieve its purpose: “It is not what these clauses enact but what the rule of law
at [3].
A Non-Doctrinal Jaunt Through Judicial Review 49
requires.”96 In R (Privacy International) v Investigatory Powers Tribunal,97
the United Kingdom Supreme Court was disarmingly frank:
[I]t is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude [judicial] review... The question in any case is “the level of scrutiny required by the rule of law”.
There is an inconvenient truth that ardent democrats are wont to overlook: Parliament did not give to the High Court its historic (inherent) jurisdiction; nor, therefore, is it Parliament’s right to withhold or regulate it. Privative clauses compromise the bedrock function of courts to uphold the rule of law and “do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will”.98 The judicial oath commends courts to rebuff legislative attempts to tamper with the political-judicial relationship and the judicial responsibility “to do right to all manner of people”. Their refusal to comply with privative clauses shows that there are ultimately limits to Parliament’s legislative competence, even if these limits remain partially indeterminate and untested. Such clauses do not prevent courts from discharging their constitutional responsibility to uphold the rule of law and check public excess or abuse.
(iv) The broader canvas
The idea of supreme and undiminished power is inimical to the Western paradigm of limited government and the expectations that shape our physical existence.99 As former Chief Justice Dame Sian Elias observed, the notion of an omnipotent Parliament seems increasingly divorced from the world as it is.100 Even the constitutional doyen, Albert Venn Dicey, acknowledged that Parliament is not, and never has been, sovereign in the absolutist and unlimited sense. Acolytes of Dicey have attributed
50 Otago Law Review (20219) Vol 17 No 1
more to his writings than he ever intended. Parliament, he wrote, is controlled by external and internal limits:101
The actual exercise of authority by any sovereign whatever, and notably by Parliament, is bounded or controlled by two limitations. Of these the one is external, the other is an internal limitation.
The external limit was the probability of popular disobedience or opposition to unjust laws (the duty of obedience “must always be in reality limited”102), and the internal limit derived from the nature of the sovereign power itself (members of civil society comprising Parliament’s membership are moulded by the moral values of the day).103 Dicey concluded: “If the doctrine of Parliamentary sovereignty involves the attribution of unrestricted power to Parliament, the dogma is no better than a legal fiction.”104 Several years ago, I wrote that Parliamentary sovereignty is a latter-day myth perpetrated by our habits of lazy thinking.105 The great attraction of the doctrine is its lack of complication and concealment of the “hard” questions that sit beneath its veneer: Can even a “sovereign” Parliament claim legislative competence to enact unjust laws? I concluded:106
Parliament has never been sovereign. In the dominant tradition, sovereignty implies autocracy. It imports the language of Leviathan – the concentration of supreme and undiminished power in the Sovereign ... But domestic legislative power has never been of this nature. Throughout English constitutional history, Parliament and the Courts have exercised co-ordinate, constitutive authority – Parliament through legislation, the Courts through statutory construction and principles of common law. While each has been, operationally and functionally, independent of the other, each has been constitutionally interdependent on the other ... A constitutional relationship of interdependence and reciprocity is the antithesis of classical sovereignty theory.
VII Privative clauses and de novo appeals/reviews
H changed the dynamic between privative clauses and de novo appeal or review rights.107 The courts once readily conceded their review
101 AV Dicey Introduction to the Study of the Law of the Constitution (10th ed,
Macmillan & Co Ltd, London, 1959) at 76.
102 At 78.
103 At 80.
104 At 71.
105 PA Joseph “Parliament, the Courts, and the Collaborative Enterprise”,
above n 99, at 321.
106 At 321-322.
107 See Joseph (2021), above n 3, at 22.9.3.
A Non-Doctrinal Jaunt Through Judicial Review 51
jurisdiction where a statute containing a privative clause provided an alternative form of redress, such as a de novo administrative appeal or review.108 For the courts, a de novo right of appeal to or review by an administrative authority “lessens the need for the normally strict construction of privative provisions”.109 The courts accepted that a challenge should be by way of the statutory procedure provided rather than judicial review. Later courts added the qualification that the statutory procedure must be at least as effective as judicial review in order to substitute for it. In Tannadyce Investments Ltd v Commissioner of Inland Revenue,110 the Tax Administration Act 1994 established for taxpayers a comprehensive challenge procedure that rendered judicial review unnecessary. For the majority, the statutory challenge procedure was more advantageous to the taxpayer as it conferred “broader rights and remedies than would be available on judicial review”.111
In H the Supreme Court redefined the law on “curing”. The decision checked the potential of de novo administrative appeals or reviews to cure a flawed first instance process. The immigration statute established a two-tier hearing process for applicants seeking refugee status. An applicant had a right to an interview with a Refugee and Protection Officer (RPO) and a right of appeal to the Immigration and Protection Tribunal (Tribunal) against an unfavourable first instance decision. In H the hearing before the RPO derailed and H sought judicial review rather than initiate the de novo appeal. Their Honours held that the de novo appeal could not cure the first instance failure. The appellant had been deprived of the benefit of the two-tier system (two opportunities rather than one to persuade the immigration authorities). The Tribunal had no power to remit the matter back to the RPO for reconsideration, leaving judicial review the only pathway to reinstate the two-tier statutory process. “[T]he Tribunal’s process,” the Court observed, “is intended to be an appeal process, not a first instance process.”112
Following H, arguments that an administrative appeal or review cures first instance failures “face stiff headwinds”.113 In Ortmann v United States of America,114 the Supreme Court confined its decision in Tannadyce
108 Calvin v Carr [1979] UKPC 1; [1980] AC 574 (PC) at 592–593.
114 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475.
52 Otago Law Review (2021) Vol 17 No 1
to its own statutory setting. “Tannadyce was a very different case from the present,” the Court observed: “It was a tax case.”115 In Ortmann the appellants sought judicial review of a District Court decision which held that the appellants were eligible for surrender under the Extradition Act 1999. Their right of case stated appeal under that Act was more limited in scope than the statutory challenge procedure in Tannadyce and did not oust the right to judicial review. For a privative clause to succeed, the statutory appeal or review procedure must be “the practical equivalent of ... [or] better than a right of judicial review”.116
The Supreme Court’s decision in H is to be commended. Fifty years ago, Megarry J asked why a person ought to be satisfied “with an unjust trial and a fair appeal”.117 A right of appeal or rehearing must not leave a complainant more disadvantaged than had proper process been observed. H would have been deprived of the two-tier hearing process had the de novo appeal been capable of curing the first instance failure. “Curing” might now be confined to low-level decision-making within domestic organisations (social clubs, incorporated societies, professional bodies, etc), where the object is to resolve matters under internal disputes procedures without external oversight.
VIII Remedial discretion
A Earlier judicial attitude
At times, too much has been made of the remedial discretion in judicial review. Refusing relief in the exercise of discretion may have serious repercussions for the rule of law: from a plaintiff’s standpoint, a decision to refuse relief post-validates the public law wrong. In New Zealand Employers Federation Inc v National Union of Public Employees,118 McGrath J observed that to refuse the declaration sought would be “positive validation in disguise”.119 For him, the Court would fail its constitutional function and raise questions as to its independence were it to decline relief.120The overriding purpose of judicial review is to uphold the rule of law. Decisions founded on material error of law, or otherwise entailing a misapplication of public power, ought to be subject to judicial correction.
115 At [568].
above n 76, at [57], [71].
[2001] NZCA 315; [2002] 2 NZLR 54 (CA) .
119 At [112].
120 At [126].
A Non-Doctrinal Jaunt Through Judicial Review 53
However, that approach has not always reflected the attitude of the courts. At times, they have been excessively judgmental in declining relief to claimants considered “undeserving”.121 The element of remedial discretion became especially prominent with the expansion of the judicial function during the post-way era. As the courts broadened the substantive grounds of review, they became conscious of the need to contain their review jurisdiction within permissible and manageable limits. The discretion to refuse relief became an indispensable adjunct to the judicial function. In Stininato v Auckland Boxing Association (Inc),122 Cooke J expressed uncharacteristic caution:
Concern for the development of administrative law as an effective and realistic branch of justice must imply that the discretionary remedies should not be granted lightly. After all, progress is not synonymous with giving judgment for plaintiffs.
Applicants for judicial review bore a dual burden: to establish the substantive ground for relief and persuade the court to exercise its remedial discretion favourably. The burden applicants bore was not a trifling one. In Stininato the Court thought the applicant’s “general record” made him undeserving of the Court’s protection.123 The Court alluded to his “tendency to troublemaking and physical aggressiveness”,124 and refused to rule on whether the Boxing Association had acted in breach of natural justice.
B Judicial correction
During the middle years of last century, the courts embraced the remedial discretion and readily declined relief, notwithstanding the commission of a public law wrong. That remained the position until the early years of this century, when a sharp judicial correction reined in the remedial discretion.125 Where grounds for relief were made out, the courts erected a strong presumption that relief should follow the wrong. English courts
123 At 30.
124 At 30.
125 See Joseph (2021), above n 3, at 27.4.1(2).
54 Otago Law Review (2021) Vol 17 No 1
led the way. In Berkeley v Secretary of State for the Environment,126 a refusal to grant relief was “exceptional”,127 available only within a “very narrow” range of situations.128 In Air Nelson Ltd v Minister of Transport,129 the Court of Appeal followed Berkeley and stated, as a “starting point”, there must be “extremely strong reasons to decline to grant relief”.130 In principle, a claimant who demonstrates that a decision-maker has erred “is entitled to relief”.131 The Court took succour from its decision in Unison Networks Ltd v Commerce Commission,132 which issued “strong cautions” against declining to set aside an unlawful decision.133
The senior courts uniformly followed suit and endorsed the Air Nelson correction. They declared it would be “rare” for a court to refuse relief:134 “The discretion to be exercised is very narrow or exceptional”;135 “the rule of law itself requires that if a law has been contravened that should be plainly enunciated and formally made known.”136 The Air Nelson correction re-established the primacy of the rule of law in judicial review, but it was short-lived.
C Judicial retreat
It took little time for judicial pragmatism to beat a hasty retreat from Air Nelson. The late Gerard McCoy published a stinging critique of the judicial correction and called for a more nuanced approach to the remedial discretion.137 In Rees v Firth,138 the Court of Appeal cited McCoy’s critique and suggested “a more nuanced approach” may be necessary “in the generality of cases”.139 In Tauber v Commissioner of Inland Revenue,140 the Court eagerly endorsed Rees v Firth and confined the Air Nelson
126 Berkeley v Secretary of State for the Environment [2000] UKHL 36; [2001] 2 AC 603 (HL). 127 At 616.
128 At 608.
129 Air Nelson Ltd v Minister of Transport, above n 27. 130 At [60]–[61].
131 At [61].
at [81].
513[2010] NZCA 513; , [2011] 2 NZLR 442 at [141].
138 Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408.
139 At [48].
A Non-Doctrinal Jaunt Through Judicial Review 55
approach to situations of substantial prejudice. Courts that followed sometimes paid lip service to Air Nelson, while opting for the nuanced, discursive approach to remedies.141 In a series of decisions, the Court of Appeal has confirmed the retreat from Air Nelson and endorsed the Rees v Firth approach.142
D Comment
The remedy of declaration is the most common form of relief in judicial review and stands apart from the mandatory orders: unlike the latter, a declaration entails no consequential relief. This makes the Rees v Firth approach problematic: it does not differentiate between declarations and the mandatory orders (orders in the nature of certiorari, prohibition, mandamus or injunction). Unlike declarations, these orders are prone to downstream consequences.143 Granting a mandatory order might: adversely affect third parties, cause administrative difficulties or disruption, serve no useful purpose, eclipse alternative statutory or domestic remedies, give undue weight to technical or minor decision- making defect, or quash a decision that was an inevitable outcome. A declaration, in contrast, does not entail any “consequences”. It might be sought with or without a prayer for one or more mandatory remedies, or it may issue in substitution for a mandatory order where the court considers the situation does not call for consequential relief.144 In Fitzgerald v Muldoon,145 Wild CJ granted a declaration that Prime Minister Robert Muldoon had acted unlawfully in breach of art 1 of the Bill of Rights 1688 (Eng). The Chief Justice granted the declaration but declined the further remedies of injunction and mandamus, as these would have served no useful public purpose.
The Rees v Firth approach may be appropriate for the mandatory
orders but not the remedy of declaration. A declaration pronounces
[86]–[114] (acknowledging Air Nelson at [92]).
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the parties’ legal position inter se without providing further relief: “A declaration neither commands nor restrains action.”146 If a material error of law is established, the courts should not balk at granting a declaration, whether or not discretion is exercised to refuse a mandatory order. In the challenge to the legality of the 2020 COVID lockdown, the Full Court endorsed the following statement of principle: “Where an applicant establishes the substantive basis for a declaration, it is difficult to envisage a valid reason to decline the order.”147 A declaration should be refused only under the strict Air Nelson threshold – where a refusal would be “exceptional”,148 based on “extremely strong reasons”.149 The courts will refuse a declaration where: the issue is purely abstract or hypothetical,150 or the facts are in dispute,151 or the remedy would usurp the jurisdiction of the criminal courts.152
The courts on occasion have refused to grant declarations where they were seen to lack utility, or where there was no perceived injustice. This approach to the remedial discretion fails to differential between declarations and mandatory orders, and misconceives the essential nature of a declaration. A declaration vindicates a violation of the plaintiff’s rights and promotes the ideals of the rule of law.153 In prison disciplinary cases, some courts have refused relief on the basis that a refusal would cause no injustice.154 That exercise of the remedial discretion must be seen for what it is – avowedly cynical, as though prisoners could never be deserving of the court’s protection. In another prison disciplinary case, the Court of Appeal granted a declaration and refused simply to record
1 NZLR 474 (HC).
A Non-Doctrinal Jaunt Through Judicial Review 57
that a breach of the prisoner’s right had occurred.155 A declaration had real purpose in “vindicating the right and marking society’s disapproval of its breach”.156 Vindication is aimed also at denouncing the decision- making, making good the harm and deterring future breaches.157 Judicial action to vindicate rights can never lack utility.
IX Conclusion
The freedom to roam in this article has been salutary, even liberating. Stepping outside the well-worn contours of one’s discipline can be invigorating. That said, persons who have been immersed in the law for decades cannot shrug off with ease the pedagogy and doctrine that have shaped their habits of thought. This article has navigated the highways of judicial review and only occasionally detoured down the byways. Judicial review is essentially an uncomplicated forensic exercise that speaks to the need for fairness and legality. Robin Cooke’s struggle for simplicity in administrative law is a worthy and laudable goal.158 Pedagogy and doctrine, at times, must sit on the side lines if the courts are to achieve their lofty purpose as guardians of the rule of law. Always, the issue in judicial review returns to Lord Donaldson’s question: “whether something had gone wrong of a nature and degree which required the intervention of the court, and, if so, what form that intervention should take.”159 Law students might take heart that judicial review is not as arcane, remote and mysterious as some might have them believe.
160.
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