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Richardson, Ivor --- "Public Interest Litigation" [1995] WkoLawRw 1; (1995) 3 Waikato Law Review 1

THE HARKNESS HENRY LECTURE:

PUBLIC INTEREST LITIGATION

BY RT HON SIR IVOR RICHARDSON[*]

I. INTRODUCTION

Public interest litigation is an inevitable feature of modern democracies but it continues to give rise to questions as to the proper role of the courts in determining public policy issues.

Judges make law and are expected to make law and in doing so necessarily weigh public policy considerations. The oracular or declaratory theory of decision-making has long been discredited. In the great majority of cases at the trial and first appellate level, once the facts are determined and assessed the legal answer is clear-cut. However, in some cases there is room for divergent answers. This is true both at common law and under statutes.

The direction of development of the common law depends on what analogies are used and on an assessment of the values involved. The notion that the common law is a seamless web is as unrealistic as the view that on their appointment judges obtain the password to the correct common law answer. Thus duties of care are based on public policy values, and in the development of the modern law of negligence the New Zealand courts openly seek to identify and weigh the various public policy considerations at stake.

Again, in exploring the interpretation and application of legislation the courts are required to consider the public policies which the legislation serves. Section 5(j) of the Acts Interpretation Act 1924 mandates a purposive approach by the courts to all legislation. And judicial review of the exercise of statutory power and public law generally requires the identification and weighing of relevant public policies by the courts.

In all such cases the approach taken depends on the material and arguments before the court and on the perception judges have of community values and attitudes in their own societies. It is at this point that questions arise as to the proper role of the courts in determining where the public interest lies. There are two broad considerations which underlie the questioning. The first is that there are limits to the democratic acceptability of judicial prescription. That reflects concerns for the constitutional and democratic implications of judicial involvement in wide issues of public policy. The second is that the techniques and procedures of the courts are not always well suited to the consideration of public interest issues. This stems from concerns about the appropriateness of adversarial proceedings in seeking to resolve complex matters; from doubts about the competence of judges and lawyers in assessing specialised material; and from fear of protracted litigation and consequential uncertainty and delays for the parties and the wider community.

I propose exploring these questions under four headings: (1) Justiciability: whether it is appropriate for the court to decide the issue; (2) Information gathering: how the court can be adequately informed of the issues; (3) Representation: who should be heard in the particular dispute; and (4) Remedies: what kinds of relief and remedy are appropriate. But before turning to justiciability I should explain why I am deliberately using the wider expression public interest litigation rather than confining the discussion to public law.

II. PUBLIC INTEREST - PUBLIC LAW

A great deal of legal learning and energy has been devoted to explaining, developing and applying the dichotomy between private law and public law. At one end of the spectrum a law suit is a vehicle for settling disputes about private rights. At the other end of the spectrum a law suit may settle disputes over the distribution and exercise of public power. But it is not easy to draw a sharp dividing line.

For example, a dispute between two private parties over their private rights may require consideration of public policies underlying the existing or contemplated legal rule. In that way it may impinge on the public interest and in its application inevitably have effects beyond the immediate parties.

Consider contract law which is the paradigm black letter private law. Underlying it are a set of public policy assumptions. Thus courts tend to view standard form contracts and exclusion clauses with suspicion as the products of inequality of bargaining power and imperfect information available to the weaker parties.[1] That public policy approach may or may not be justified. Empirical analysis may not warrant such a critical approach on the part of the courts. No one complains that prices for goods and services are generally set on a take it or leave it basis. Constant haggling over price necessarily involves high transaction costs. For the same reason standard form contracts may in many contexts also permit a dramatic reduction in transaction costs and so in prices.

The reality is that intrusion by the courts on the operating of markets tends to add to the cost of the goods or services. Where resources are scarce, as they always are, trade-offs are always involved - here between greater protection for consumers and higher retail prices. That may involve balancing considerations of efficiency and fairness. And fairness values should recognise that the contractual price might well have been higher had the impugned exclusion clause or standard terms not been included in the contract. One only needs to consider the different sale prices attaching to different warranties or other terms of contract to appreciate that reality.

I mention this not to go off into a discussion of the economic analysis of legal rules but rather to emphasise that much of the law making of the courts in determining private rights of private parties involves the identification, assessment and application of public policy values in that society. Reconsideration of existing legal rules to reflect contemporary conceptions of relevant public policies and contemplated policy developments becomes much more difficult in the traditional two party private dispute defined by past events where the fact inquiry is party driven and mainly historical rather than also policy oriented and predictive.

Numerous other examples come to mind. Green v Matheson,[2] which arose from the cervical cancer inquiry, was an action against a medical practitioner and a hospital for exemplary damages for personal injury. In form it was a private law matter but it affected a large number of people and raised public interest considerations. Next, questions relating to charities and charitable gifts often raise public interest considerations in private litigation, so much so that the Attorney-General as the guardian of charities often has a special role in the litigation. Again, dig into any equity case including modern developments in unconscionability, fiduciary duties and de facto couple property sharing, and the underlying public policy bases for the particular rule or doctrine will become apparent.

Clearly, then, ostensibly private disputes may involve weighing public policy considerations. By contrast, public law bodies have the capacity to perform private activities. The carrying on of any public or commercial activity carries the risk on a day to day basis of disputes which, if not resolved, may lead to ordinary civil litigation. It should make no difference to the assessment of liability if your car is hit by a local authority vehicle or a private vehicle.

Public law is concerned with the exercise of public power. In drawing the private law/public law divide the focus is on the nature of the function which is being performed. Even there the line is fuzzy. On one side of the divide control of the exercise of power has not been confined to bodies performing functions conferred or imposed by law. One obvious example is Finnigan v New Zealand Rugby Football Union,[3] where the High Court issued an injunction stopping the All Black tour of South Africa. The rationale was that rugby is a national sport and, while it is technically a private and voluntary sporting organisation, the Rugby Union in the New Zealand context is in a position of major national importance. On the other side of the private/public divide the Court in NZ Stock Exchange v Listed Companies Association Inc[4] held that the relationship between the Stock Exchange and a listed company was contractual and the decision by the Stock Exchange to suspend listing a company was exercised under that contract and was not the exercise of a statutory power of decision within section 4 of the Judicature Amendment Act 1972. Inherent in that approach was the view that Parliament could never have intended that every corporate body recognised by statute or owing its existence to a specific or general statute could have its commercial operations subject to judicial review.

To sum up the preceding discussion, there are two reasons why I prefer to focus on the wider expression public interest litigation rather than on public law litigation. The first is that public policy considerations affect decision-making in private law litigation and public bodies have private law rights and obligations. The second is that the dividing line between private law and public law is not easy to draw and apply. Accordingly it seems sensible to concentrate on the wider expression public interest litigation and on the four issues of justiciability, information gathering, representation and remedies.

III. JUSTICIABILITY

The notion of justiciability poses the question of whether the particular question is appropriate for judicial resolution. Judges must be conscious of the respective roles of the three branches of government reflected in the Constitution Act 1986: Parliament, the Executive and the Courts. They must respect the constitutional and democratic implications of judicial intrusion into wide public policy issues. There comes a point where public policies are so significant that the courts should defer to the executive decision-maker. The larger the policy content and the more the decision-making is within the customary sphere of those entrusted with the decision, the less well-equipped the courts are to weigh the considerations involved and the less inclined they must be to intervene.

For example, in Petrocorp Exploration Ltd v Minister of Energy,[5] I took the view, which was upheld by the Privy Council, that the identification and determination of the national interest under the statute in that case was for the Minister alone. As the statutory authority under the Petroleum Act 1937, the Minister was empowered to refuse applications and to grant licences to himself or herself even though the Minister also had commercial functions under a joint venture agreement which held the licence for an adjoining area.

Ten years earlier, in Ashby v Minister of Immigration,[6] I took the view that the content of the national interest in relation to immigration policy and the granting or refusing of temporary visas, and in particular the isolation of specific aspects of foreign and domestic policies and their elevation into obligatory considerations which must be weighed by the Minister, was not a proper subject for determination by the Court.

Again, in Council of Civil Service Unions v Minister for the Civil Service,[7] Lord Roskill itemised such prerogative powers as those relating to the making of treaties, the defence of the nation, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of Ministers as not being “susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process”.

More recently, in Waters v Acting Administrator of the Northern Territory,[8] the Federal Court of Australia held that the decision of the Administrator to refuse to appoint a barrister as a Queen's Counsel was not justiciable.

A court may also refuse to act as requested by a party where the unforeseeable consequences reach far beyond the limits of the case. Thus, in Steadman v Steadman,[9] a part performance case, Lord Reid said that the decision in question was so embedded in the law that he would not depart from it even if he thought it wrong. He stated that “it would be impracticable to foresee all the consequences of tampering with it”.[10]

That case did not involve a basic policy decision of the executive or of the legislature. Nor was it an attempt to assert the need for public accountability for private power. These latter cases are intrinsically difficult. As David Feldman observes,[11] if everyone is permitted to raise public interest issues, litigation becomes an alternative or a supplement to orthodox political processes, taking the courts beyond their core function of adjudicating on individuals' rights and duties. When assessing where public interest issues should most appropriately be addressed, the differences between the political and judicial forums should be kept in mind. The limitations of the role of the courts as agents of change have long been recognised. As G Edward White has observed, in twentieth century jurisprudential theories:

Some limitations have been intellectual (an obligation to give adequate reasons for results), some institutional (an obligation to defer to the power of another branch of government), some political (a need to avoid involvement in hotly partisan issues), some psychological (a need to recognise the role of individual bias in judicial decision-making).[12]

The constitutional functions, democratic legitimacy and consultative processes of the legislature and executive may render those branches of government better able to address the multifarious considerations typically thrown up by public interest litigation.

The court must remain conscious of this when deciding where, in terms of the constitutional and social ethic, to end the judicial role.

Westminster style constitutions are committed to representative democracy and responsible government. Those features of our constitutional arrangements do not provide the touchstone of justiciability. They do not define a no-go area for the courts. The legal answer may be affected by the judge’s perspective of the role of the State and of each branch of government. It may also be affected by the judge’s perspective of the balance in the particular society and at the particular time between individual, group and community rights, responsibilities and interests.

Let me give three quotations from judges in other jurisdictions. The first is Lord Devlin. He noted that in the past judges looked for the philosophy behind the statute and what they found was a Victorian bill of rights favouring the liberty of the individual, the freedom of contract, the sacredness of property and a high suspicion of taxation. He went on to say that it is silly to invite the judges to make free with Acts of Parliament and then abuse them if the results are unpleasant to advanced thinkers.[13]

Next is Sir Anthony Mason, the recently retired Chief Justice of Australia. Writing in 1989, he described administrative law as a body of public law having as its premise the need to control the exercise of power in a welfare state with a largely regulated economy.[14] As Sir Anthony Mason put it, and I summarise: administrative review owes its place in a modern democracy to a vast expansion of the administrative decision-making process; the increasing complexity of social and economic life has called for more sophisticated and flexible regulatory control in which administrative discretions have played an ever-increasing part; these techniques of regulatory control have been supplemented by social welfare and other legislative programmes administered by government departments or statutory authorities; and in the result the material welfare of the individual has come to depend even more on one's rights against the executive and its agencies than on one's rights against one's fellow citizens.

Finally, Lord Woolf, delivering the F A Mann lecture in November 1994,[15] appeared to go further than Sir Anthony Mason. Noting that increasingly services which at one time were regarded as an essential part of government are being performed by private bodies, he said:

I can see no justification for the law allowing privatised bodies to adopt lower standards than those they were previously required to maintain.[16]

If there were to be an overriding test, he would wish it to have two primary requirements: an issue is subject to public law if (a) it is one about which the public has a legitimate concern as to its outcome; and (b) it is not an issue which is already satisfactorily protected by private law. He went on to say that over the years the attitudes of the judiciary have changed but fortunately they have kept broadly in step with the attitudes of the public.

Which, if any, of these sets of assumptions is in tune with the New Zealand society of 1995? That could be a matter for endless debate. One obvious point is that we are all influenced and limited by our backgrounds, as were Lord Devlin, Sir Anthony Mason and Lord Woolf. And as Professor Jaffe has emphasised:

The judicial function is not a single, unchanging, universal concept. In any one habitat it differs from era to era... The powers of the executive and the legislature wax and wane at the expense of each other... The conditions which act upon the executive and the legislature to determine the character of their powers act upon the judiciary.[17]

Any survey of democracies shows that different societies give different emphases to different values and the emphases may change over time. Particularly over the last 10 years the economic, social and political landscape has changed markedly. Apart from structural changes affecting the economy and the nature and degree of governmental involvement, there have been many changes in attitudes, in the way of looking at the economy, at the functioning of government and at society. In his trenchant fashion Sir Geoffrey Palmer has recently spoken of the yawning chasm between the way Ministers look at decisions and the way courts look at them and of his doubts that many of the judges know a great deal about administrative reality.[18] And complicating the assessment of often diverse community values are the differing speeds at which different segments of society are responding or adjusting to the change process.

How should these changes, which have affected other institutions of our society, rub off on the courts? Should justiciability questions and the philosophical approach underpinning large areas of public law now be modified to reflect the less expansive role of government in the more market-oriented State?

Major economic, social and political change inevitably calls in question public policies underlying legal rules. Where there has been so much economic and social change, it becomes all the more important to take stock of our laws; to enquire whether they truly reflect the values of today's society; to assess their economic and social implications. In that stocktaking the allocation of scarce resources necessarily involves weighing egalitarian and community values along with efficiency concerns.

In reflecting the scheme and purpose of legislation those engaged in statutory interpretation can be expected to approach new or amending legislation conscious of those changes. Likewise common law and public law rules may need to be reappraised through a contemporary lens. It does not follow that there will be less public interest litigation. There may well be more if the community perspective is that the public policies underlying particular legal rules have themselves changed. Again, if as has been suggested, agreement on legislative change will be more difficult to achieve under MMP, more policy issues may reach the courts.

IV. INFORMATION GATHERING

The two major problems for the courts in deciding public interest litigation are obtaining relevant information and then assessing it.

There are obvious constraints. First, litigation under the adversary processes of the courts is not an ideal vehicle for conducting an extensive social inquiry. Traditionally the courts have been dependent on the evidence and arguments which the parties elect to put before the court. The parties are primarily concerned with the resolution of their particular dispute. They may not have any interest in external wider issues. They may lack resources or may be unwilling to commit more resources to the case. In the result there may be serious gaps in the material furnished to the court.

At the other extreme is the problem of information overload. We have had many cases on appeal where, in addition to the pleadings, the transcript of the evidence, and the judgment in the court below, we have been inundated with thousands of pages of legal, historical and other such material. An expenditure by one party, for example on the provision of the material for the hearing, may affect the expenditure decisions of the other and the overall length and costs of the litigation processes.

In recent times courts have taken over from counsel some of the responsibility for controlling the course of litigation. Judges have a proper public responsibility for case management but it is never easy to strike the right balance between court intervention and party autonomy. This is particularly true in public interest litigation where the costs are borne by the immediate parties and the courts but the decision has wider ramifications extending beyond the immediate parties.

The acceptable resolution of disputes involves reaching a satisfactory substantive answer in a fair and cost efficient way. Both the substantive decision and the process by which it is arrived at must balance community values (moral, social and political), fairness considerations, and resource constraints. In economic cost terms the object is to minimise the sum of the three types of costs. In other areas of public policy the costs are conventionally referred to as administration costs, compliance costs and economic or deadweight costs. In the justice system the administration costs are the net costs to government after deducting court fees and other receipts. The compliance costs are the costs borne by those involved in the litigation. The economic costs are the risks and costs of erroneous and inefficient decision-making. The substantive decision also carries costs and benefits. The point is that in both the decision-making process itself and in the ultimate decision on the public policy rule the court should take account of all the costs involved.

There are various steps which the court can take to ensure that it is adequately informed. It may seek or encourage the parties to provide further material. For example, Cabinet Minutes were received on the argument of the appeals in CREEDNZ Inc v Governor-General[19] and Petrocorp;[20] affidavits from the Ministers concerned were received in numerous cases, including Ashby v Minister of Immigration;[21] and the actual contract of employment was tendered on the appeal in Governor of Pitcairn v Sutton.[22] Where it can be conveniently done, it is desirable that we have a clear picture of the facts.

An interesting approach to this problem was taken in the Australian case of Mabo v Queensland.[23] The case commenced in the High Court, but the issues of fact were remitted to the Supreme Court of Queensland for determination. This arrangement, made under the Australian Judiciary Act 1903, saved the High Court an enormous amount of sitting time, for the hearing of factual matters alone took nearly 70 sitting days, and the findings ran to three volumes. Creative application of case management under our High Court Rules could assist fact-finding in public interest litigation here.

Next, there are numerous cases where factual material bearing on the public policy assessment, which was not available to the lower court, was received on appeal. Bill of Rights cases are a fertile example of this. Thus, in Police v Smith and Herewini,[24] which dealt with taking of blood samples in hospitals or doctors' surgeries under the Transport Act 1962, affidavits were received from New Zealand and Canada on the practicability of affording access to a lawyer under section 23(1) of the Bill of Rights. Again, we have benefited in sentencing appeals from receiving a range of sociological and statistical material to assist in sentencing guidelines. Thus, in R v Accused (CA406/92),[25] the Court sought and received a mass of data from Australia, England, Canada and the United States, as well as New Zealand material on incest offending.

Judges may also properly take judicial notice of a range of factual material. Thus the first New Zealand Mori Council case under the State-Owned Enterprises Act[26] stressed the great value to the courts of the opinions of the Waitangi Tribunal. Section 42 of the Evidence Act 1908 expressly allows generous reference to such published works as we consider to be of authority on the subjects to which they relate. We have treated section 42 as allowing reference to the widest range of statistical, economic and social data, analyses and discussion. At the same time we must be cautious in the weight we give to material of that kind, particular where it has not been subject to scrutiny or testing at trial or on the argument of the appeal. The trenchant criticisms which have been made of the use by Canadian courts of limited quantitative social science data in the leading Charter cases dealing with delays in criminal proceedings are a powerful reminder of the need for caution.[27] A do-it-yourself approach may be little better than a purely intuitive judicial assessment if it allows untested and possibly flawed material to be influential in decision-making. We need to guard against the easy assumption that without assistance we are competent to assess specialised social policy data.

The real problem, however, is that the court processes do not allow public policy to be developed in the systematic way that is regarded as desirable elsewhere in government. Public policy development conventionally requires the identification and consideration of key policy elements; appropriate consultation and assessment throughout the processes; and cost benefit analyses during the various phases of the policy development program. Those analyses should assess all the costs and benefits, including the contribution of the particular policy to the achievement of community goals, and should recognise implementation constraints.

The Brandeis brief, named after the well known United States judge, follows that course but without external consultation and assessment throughout the process. In his briefs as counsel and in his judicial opinions Justice Brandeis would set out the factual basis of his inquiry, undertake an extensive empirical examination (complete with technical references), make a cost benefit analysis of the effect of various policy choices and choose the most efficient solution.[28] That technique was utilised in the great school desegregation case, Brown v Board of Education,[29] where a Social Science Statement, signed by 32 social scientists and appended to the brief of counsel for the appellants, summarised the general fund of psychological and social knowledge of the effects of the segregation of the black and white races.

Coming closer to home, the manner in which the New Zealand Law Commission works by publishing discussion papers and then presenting final reports with draft bills attached, produces carefully thought-out policy with ample public participation.[30] By contrast, courts cannot circulate draft judgments for public comment before committing themselves finally.

While public interest litigation does not lend itself to standard processes of public policy development, the courts must ensure so far as they reasonably can that the identification, assessment and judicial acceptance of relevant public policies as the basis for legal rules is appropriately founded on the material and arguments before the court.

V. REPRESENTATION

There are two aspects of representation in public interest litigation. One is the application of rules of standing designed to limit appearance to those with a genuine interest in the issues. The other is to ensure that relevant perspectives, which the parties themselves do not necessarily bring to the litigation, may be considered by the court.

In some jurisdictions arguments over standing can occupy much time of the courts and are a feature of its administrative law. There is an understandable concern that the court processes should not be used for the proliferation or expansion of litigation by organisations and individuals who, though well meaning, have only a marginal interest in an issue. The New Zealand courts have tended to take a broad if not relaxed view of standing and have never felt oppressed by a busybody problem. For example, in Finnigan v NZ Rugby Football Union,[31] we accepted that two members of local clubs had standing to challenge the decision of the Rugby Union to tour South Africa. Again, in Environmental Defence Society (Inc) v South Pacific Aluminium Ltd (No 3),[32] concerning the proposed aluminium smelter at Aramoana, we said that had it been necessary for the decision we would have found that the Environmental Defence Society and the Royal Forest and Bird Protection Society, as public groups concerned with environmental issues, had standing to challenge the validity of the order of the Governor-General in Council under the National Development Act 1979.

In practice, the more important question is how can the court ensure that all relevant public interest considerations are advanced and tested? The techniques of requiring amicus curiae briefs from government and affected industries and citizen groups have not been comprehensively developed outside the United States. Rather, wider representation has been arranged on an ad hoc basis as and where we consider it appropriate. Thus, in Gazley v Attorney-General,[33] which concerned the jurisdiction of the court to restrain counsel from acting in a matter, the court was assisted by submissions from the New Zealand Law Society, the New Zealand Bar Association and also Dr Barton as amicus curiae.

The Attorney-General, acting in the public interest, will always be heard by the court. As Professor Edwards puts it,[34] the Attorney-General has a leading role, but no monopoly, as guardian of the public interest. And the Attorney may appear either in that capacity or as amicus curiae to assist the court. Television NZ Limited v Prebble[35] is a recent case where the Attorney-General and Crown Counsel appeared as amici curiae. There have also been some cases where at our request the Solicitor-General has presented submissions.

Further, the High Court Rules specifically contemplate wider representation before the court. Rule 81 enables the court to ensure that the interests of those who may be affected by a proceeding can be represented. The court may make a representation order on the application of any party or on its own motion. The Rules specifically allow for service on the Attorney-General or Solicitor-General (paragraph (d)), for the head of a government department or other officer to “represent the public interest” (paragraph (e)), and for a “local authority, public body or other representative body of persons” to represent “the inhabitants of any locality or any class of persons” (paragraphs (f) and (g)).

Nevertheless, in the adversarial system we are largely reliant on counsel for the immediate parties for the adducing of evidence and the development of argument.

In relation to justiciability, this situation must be contrasted with the representation available in the political and legislative processes. The nature of the political process enables (and requires) the participation of a wide variety of interested groups in policy making. With the increased political value of individual and party votes under MMP, this level of consultation can only be expected to intensify. Inevitably the court must compare its ability to hear the necessary range of voices on a public interest issue with the broadly consultative approach which the political process would bring to the matter. Striking the appropriate balance between the different forums is again a question of assessing the relative costs and quality of representation provided by each, as well as recognising their respective constitutional roles. It is ironic that the enhanced consultation predicted under MMP may make legislative change more difficult to achieve, resulting in more policy issues reaching the courts.

Finally, while wider representation would help the courts reach decisions balancing all the public interests involved, there is the question of who should pay for that wider representation and for the additional costs to the immediate litigants and the courts.

VI. REMEDIES

In some categories of public interest litigation the courts have considerable flexibility in determining the appropriate remedy. Thus, under the Judicature Amendment Act 1972, where the court has found process failure in the exercise of a statutory power, the court still has a discretion as to whether to grant or refuse a declaration or other specific remedy. In making its decision the court will weigh all the implications of the alternatives for the agency and individuals concerned.

Again, in various New Zealand Mori Council cases the court was able to express a conclusion then leave it to the parties to work out the appropriate implications of the ruling, reserving leave to apply to the court for further decision. In Bill of Rights cases the court has flexibility to determine what, if any, remedy is appropriate to vindicate the particular right found to have been breached. In some cases, too, the court may through its orders preserve past transactions and only operate prospectively. In Coburn v Human Rights Commission,[36] the use of marital status as the basis for determining benefits in a pension plan was held to be contrary to the Human Rights Act 1993. Thorp J concluded that under the Declaratory Judgments Act 1908 he had jurisdiction to limit the operation of any orders so as to achieve a just result; that to apply his ruling to past contributions to the plan would impose harsh results on existing members and beneficiaries; and that the appropriate course was to make a prospective determination only.

In short, in public interest litigation remedies will be tailored so far as possible to meet the justice of the case.

VII. CONCLUSION

To sum up the discussion: courts, lawyers and commentators are increasingly conscious of the difficulties and complexities of public interest litigation. They may have to determine justiciability, whether the particular question is appropriate for judicial resolution. If it is, they need to consider the information-gathering process and ensure, through appropriate representation techniques, that all relevant perspectives are advanced and tested. In deciding public interest cases, and in fact wherever policy choices are required of them, the courts can no longer afford to rely on instinct and intuition. They must ensure that they are well informed of the societal background to the case. Equally, there must be limits to the amount of evidence with which they are provided. As I stated earlier, mountains of information are not conducive to good decisions. A balance must be struck. This is a major challenge facing the courts, the judiciary, and indeed the whole of the legal profession, over the coming decades: to adduce and test sufficient cogent evidence for policy decisions without swamping the court with extraneous data. Only by meeting this challenge will our courts fulfil their role in this area of adjudication.

[*] LLB, LLD (hc) (Canterbury), LLM SJD (Michigan), Judge of the New Zealand Court of Appeal.

[1] See Macaulay v A Schroeder Music Publishing Co Ltd [1974] 1 WLR 1308, 1316 and Livingstone v Roskilly [1992] 3 NZLR 230, 238.

[2] [1989] NZCA 195; [1989] 3 NZLR 564.

[3] [1985] NZHC 102; [1985] 2 NZLR 159 and [1985] NZCA 111; [1985] 2 NZLR 190.

[4] [1984] 1 NZLR 699.

[5] [1991] 1 NZLR 1 and [1991] UKPC 10; [1991] 1 NZLR 641 (PC).

[6] [1981] 1 NZLR 222.

[7] [1985] AC 374, 418.

[8] [1993] FCA 604; (1993) 119 ALR 557.

[9] [1976] AC 536.

[10] At 542.

[11] “Public Interest Litigation & Constitutional Theory in Comparative Perspective” (1992) 55 MLR 44, 48.

[12] The American Judicial Tradition (1976) 371-372.

[13] The Judge (1979) 15.

[14] “Administrative Review: The Experience of the First 12 Years" 18 Fed LR 122, 128.

[15] "Droit Public - English Style" [1995] Public Law 57.

[16] Ibid, 63.

[17] English and American Judges as Lawmakers (1969) 10.

[18] "The New Public Law: Its Province and Function" (1992) 22 VUWLR 1, 2-3.

[19] [1981] 1 NZLR 192.

[20] Supra note 5.

[21] Supra note 6.

[22] [1994] NZCA 277; [1995] 1 NZLR 426.

[23] [1986] HCA 8; (1986) 64 ALR 1.

[24] [1993] NZCA 585; [1994] 2 NZLR 306.

[25] [1994] 3 NZLR 157.

[26] New Zealand Mori Council v Attorney-General [1987] 1 NZLR 641, 661.

[27] See eg Baar, “Criminal Court Delay and the Charter: the Use and Misuse of Social Facts in Judicial Policy Making” (1993) 72 Can BR 305.

[28] White, The American Judicial Tradition (1976) 164.

[29] [1954] USSC 42; 347 US 483 (1954).

[30] Palmer, “The New Public Law: Its Province and Function” (1992) 22 VUWLR 1, 9.

[31] Supra note 3.

[32] [1981] 1 NZLR 216.

[33] CA 52/94, judgment 17 March 1995.

[34] The Attorney-General, Politics and the Public Interest (1984) 138.

[35] [1993] 3 NZLR 513.

[36] [1994] 3 NZLR 323.