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Government Bill
Contents
1 Title
2 Commencement
3 Act to bind the Crown
4 Purpose
5 Certain rules relating to applications for review
6 Directions
7 Defects in form, or technical irregularities
8 Remedies against the Crown
9 Principal Act amended
10 Other enactments amended
11 Repeals
Schedule 1
Other enactments amended
Schedule 2
Enactments repealed
The Parliament of New Zealand enacts as follows:
1 Title
(1) This Act is the Judicature Amendment Act 2001.
(2) In this Act, the Judicature Act 1908 is called “the principal Act”.
2 Commencement
This Act comes into force on [insert date].
3 Act to bind the Crown
This Act binds the Crown.
4 Purpose
(1) The purpose of this Act is to reform the law relating to the procedure for judicial review and to repeal Part I of the Judicature Amendment Act 1972.
(2) This Act does not limit any power which the Court has under any law with respect to applications for review.
5 Certain rules relating to applications for review
(1) Where on an application for review the applicant is entitled to an order declaring that a decision is unauthorised or otherwise invalid, the Court may, instead of making that declaration, set aside the decision.
(2) Despite any rule of law to the contrary, it is not a bar to the grant of relief in proceedings for a writ or an order of or in the nature of certiorari or prohibition, or to the grant of relief on an application for review, that the respondent was not under a duty to act judicially. This subsection is not to be construed as enlarging or modifying the grounds on which the Court may treat an applicant as being entitled to an order of or in the nature of certiorari or prohibition.
C1 Section 3 provides that the Act will bind the Crown.
C2 Section 4(1) sets out the purpose of the Act. The purpose of the Act is to repeal the Judicature Amendment Act 1972 and to reform the law of judicial review. This legislation will replace the judicial review provisions of the JAA 1972. It does not address the sections of Part II of the JAA 1972 that are still in force.[132]
C3 Section 4(2) provides that the common law powers of the Courts to exercise their jurisdiction of judicial review will not be affected by the new Act.[133]
C4 Section 5(1) restates the current section 4(2) in plain English.
C5 Section 5(2) restates the current section 4(2A) in plain English.
6 Directions
(1) On an application for review the Court, if it is satisfied that the applicant is entitled to relief, may, in addition to or instead of granting any other relief, direct the respondent to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of any matter to which the application relates. In giving any such direction the Court must—
(a) advise the respondent of its reasons for so doing; and
(b) give to the respondent such directions as the Court thinks just as to the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.
(2) If the Court gives a direction under subsection (1), it may also make an interim order.
(3) Where any matter is referred back to the respondent, the respondent has jurisdiction to reconsider and determine the matter in accordance with the Court’s direction despite anything in any other enactment.
(4) Where any matter is referred back to the respondent, the act or omission that is to be reconsidered, subject to any interim order made by the Court, continues to have effect according to its tenor unless and until it is revoked or amended by the respondent.
(5) In reconsidering any matter referred back under subsection (1), the respondent must have regard to the Court’s reasons for giving the direction and to the Court’s directions.
7 Defects in form, or technical irregularities
On an application for review, if the sole ground of relief established is a defect in form or a technical irregularity, and the Court finds that no substantial wrong or miscarriage of justice has occurred, the Court may
(a) refuse relief; and
(b) if the decision has already been made, make an order validating the decision, despite the defect or irregularity, to have effect from such time and on such terms as the Court thinks fit.
C6 Section 6 restates the current section 4(5), 4(5A), 4(5B), 4(5C) and 4(6) in plain English. This section sets out the Court’s powers to give directions.
C7 Section 7 restates the power that the Court currently has under section 5 to validate a decision where there is a defect in form or a technical irregularity, but the Court finds no substantial wrong has occurred.
8 Remedies against the Crown
To avoid any doubt, the Court may make any order (including an interim order) against the Crown that it may make against any other respondent in respect of an application for review or an application for mandamus, injunction, prohibition, or certiorari.
9 Principal Act amended
(1) Section 26J(4)(b) of the principal Act is amended by omitting the words “under section 4(1) of the Judicature Amendment Act 1972”.
(2) Section 56N of the principal Act is amended by omitting the words “under Part I of the Judicature Amendment Act 1972” and substituting the words “by the High Court”.
10 Other enactments amended
The enactments specified in Schedule 1 are amended in the manner indicated in that schedule.
11 Repeals
The enactments specified in Schedule 2 are repealed.
C8 Section 8 provides that the Court may make any order against the Crown. It does not include the Sovereign in her private capacity (see Crown Proceedings Act 1950 section 35(1)). Nor does the (procedural) reform alter any substantive Crown immunity, any principle of nonjusticiability, or the grounds on which the Court will exercise the discretion against granting relief (paragraph 31 above ). We propose that in the new Act all orders, including mandatory orders, and whether interim or permanent, should be available against the Crown.
C9 Section 9 provides for the consequential amendments that must be made to the principal Act as a result of the new Act.
C10 Section 10 sets out amendments that, as a consequence of this Act, must be made to other legislation. Note that no amendment is proposed regarding the Employment Contracts Act 1991 in light of its repeal by the Employment Relations Act 2000.
C11 Section 11 sets out the enactments that, as a consequence of this Act, must be repealed.
Schedule 1
Other enactments amended
Armed Forces Discipline Act 1971 (RS Vol 23 p 33)
Omit from section 143 the words “be liable to review by any court under the Judicature Amendment Act 1972” and substitute the words “an application for review”.
Casino Control Act 1990 (1990 No 62)
Omit from section 98(a) the words “of that decision under Part I of the Judicature Amendment Act 1972” and substitute the words “by the High Court of that decision”.
Children, Young Persons, and Their Families Act 1989 (1989 No 24)
Omit from paragraph (a) of the definition of “review proceedings” in section 207B the words “under the Judicature Amendment Act 1972” and substitute the words “by the High Court”.
Crown Proceedings Act 1950 (RS Vol 38, p 441)
Omit from the definition of “civil proceedings” in section 2(1) the words “under Part I of the Judicature Amendment Act 1972” and substitute the words “by the High Court”.
Flags, Emblems, and Names Protection Act 1981 (1981 No 47)
Repeal section 20A(5) and substitute :
“(5) A decision of the New Zealand Olympic Committee Incorporated under this section may be the subject of an application for review by the High Court.”
Immigration Act 1987 (RS Vol 33 p 163)
Omit from paragraph (a) of the definition of “review proceedings” in section 2(1) the words “under the Judicature Amendment Act 1972” and substitute the words “by the High Court”.
Omit from section 146A(1) the words “Any review proceedings in respect of a statutory power of decision” and substitute the words “An application for review by the High Court in respect of any decision”.
Repeal section 146A(3).
International War Crimes Tribunals Act 1995 (RS Vol 41 p 577)
Omit from section 39 the words “under Part I of the Judicature Amendment Act 1972” and substitute the words “by the High Court”.
Local Government Official Information and Meetings Act 1987 (RS Vol 35 p 347)
Repeal section 9(1)(b) and substitute:
“(b) Any application for review by the High Court of any decision under this Act; —”.
Repeal section 32(4) and substitute:
“(4) Nothing in this section prevents the High Court from making an interim order in respect of an application for review or effect being given to that interim order.”
Repeal section 37(a) and substitute:
“(a) May not make an application for review by the High Court of that decision; and”
New Zealand Security Intelligence Service Act 1969 (RS Vol 21 p 559)
Omit from section 4A(6)(b) the words “judicial review under Part I of the Judicature Amendment Act 1972” and substitute the words “ an application for review by the High Court.”
Official Information Act 1982 (RS Vol 35 p 403)
Repeal section 11(1)(b) and substitute:
“(b) Any application for review by the High Court of any decision under this Act;”.
Repeal section 32(5) and substitute:
“(5) Nothing in this section prevents the High Court from making an interim order in respect of an application for review or effect being given to that interim order.”
Repeal section 34(a) and substitute:
“(a) May not make an application for review by the High Court of that decision; and”
Privacy Act 1993 (1993 No 28)
Repeal section 119 (1)(b) and substitute:
“(b) Any application for review by the High Court of any decision under this Act; —”.
Rating Powers Act 1988 (1988 No 97)
Omit from section 150C(2)(b) the words “review by the High Court under section 4 of the Judicature Amendment Act 1972,” and substitute the words “an application for review by the High Court”.
Resource Management Act 1991 (RS Vol 32 p 131)
Omit from section 296(a) the words “under Part I of the Judicature Amendment Act 1972” and substitute the words “ by the High Court”.
Sale of Liquor Act 1989 (1989 No 63)
Omit from section 148(a) the words “under Part I of the Judicature Amendment Act 1972” and substitute the words “by the High Court”.
Serious Fraud Office Act 1990 (1990 No 51)
Omit from section 21(3) the words “under section 8 of the Judicature Amendment Act 1972” and substitute the words “with respect to an application for review by the High Court”.
Schedule 2
Enactments repealed
Employment Contracts Act 1991 (1991 No 22)
Section 163
Judicature Amendment Act 1972 (RS Vol 40 p 327)
Part I
Judicature Amendment Act 1977 (RS Vol 40 p 327)
Sections 10 to 14
Judicature Amendment Act 1991 (RS Vol 40 p 327)
Section 7
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URL: http://www.nzlii.org/nz/other/nzlc/report/SP10/SP10-APPENDIX.html