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Preface

THIS STUDY PAPER records options for reform of the procedures for judicial eview of administrative action. It contains the argument by the President of the Law Commission in favour of reform.

This Study Paper raises two broad issues for discussion. The first concerns an aspect of the status of the citizen in relation to the State in litigation: whether mandatory orders should become available against the Crown. The second issue relates to the procedures for judicial review of administrative action. These issues overlap when mandatory orders are sought on judicial review.

It became clear that to deal with the question of mandatory orders in the context of judicial review, we were also required to examine the statutory Crown immunity from mandatory orders provided by section 8(2) of the Judicature Amendment Act 1972 (JAA), itself derived from section 17 of the Crown Proceedings Act 1950 (CPA). That immunity is considered as an initial question in chapter 1.

The precept that the Sovereign can do no wrong is a relic of another age. But some of its baggage is still with us. In 1947 the United Kingdom Parliament reacted to the grossest injustices resulting from Crown immunities from suit by enacting the Crown Proceedings Act.[1] The New Zealand Crown Proceedings Act 1950 (CPA) (which, with minor exceptions, has remained unaltered ever since) essentially adopted the United Kingdom measure. While generally permitting the grant against the Crown in civil proceedings of relief available against a subject, section 17 prohibited the making of orders for injunction, specific performance, recovery of land and delivery of property against the Crown; only declaration was to be available. And (important to the later discussion of judicial proceedings) in relation to habeas corpus, mandamus, prohibition, or certiorari, and (since 1972) applications under the JAA to the extent that any relief sought is in the nature of mandamus, prohibition or certiorari, which is important to the later discussion of judicial review. So, save to the extent they are excluded by the JAA, the rules of the common law, including any Crown immunity, continue to apply and require consideration. Nevertheless when section 8 of the JAA introduced statutory procedures through judicial review for interim relief by way of prohibition or stay, it excluded Crown liability to any remedy other than declaration. The present law is complex; in some regards unclear and confusing.

The pressure for change has been reduced by the courts’ ability to devise procedures that will do justice in most cases and, regarding the Crown’s immunity from mandatory orders, by reason of the Crown’s commendable practice of honouring declarations as to its liability. But that is no justification to avoid the need for reform.

Change has also been resisted on account of the substantive immunity of the Crown from various kinds of claim. Procedural reform requires consideration of this thorny topic. There is a tension between two important public interests: (1) that the Crown be able to perform its function of governing the country without undue interference from suit; (2) that the Crown be answerable to the law. The competing arguments are advanced at paragraphs 28–48.

The second question considered in this paper concerns the procedures for seeking judicial review of administrative action. The 1972 and 1977 amendments to the Judicature Act 1908, introducing a simple procedure for judicial review, revitalised the ancient processes derived from the common law prerogative writs. But a quarter century’s development of the substantive common law has been more dynamic than could be accommodated within the statutory procedures. It has proved necessary in a variety of cases to revert to the old procedures, or to issue double proceedings, to avoid procedural error. While merely inconvenient for experienced administrative lawyers, for others, the Law Commission decided under section 5(1)(d) of its Act that this area of law warranted consideration, in discharge of its responsibility to advise how it can “be made as understandable and accessible as practicable”.

Procedures for judicial review applications are currently located within both the JAA and Part VII of the High Court Rules (HCR). The JAA provides a statutory basis for review, while the HCR allow claimants to resort to the common law of judicial review. When the JAA was introduced, it was thought that the common law procedures would wither away as people became familiar with the new statutory system.

The development of judicial review beyond the framework of the JAA has meant increased recourse to the common law procedures. The existence of a dual system of judicial review has led to inconsistencies of substance between the common law and statutory procedures. It is misleading to non-specialists.

The Law Commission therefore undertook to explore “tidying” the procedures for judicial review. This Study Paper proposes that the JAA be repealed and replaced with a skeletal Act which will retain the substantive elements of the current legislation. All the procedures for judicial review would be consolidated in the High Court Rules, redrafted to this effect.

In preparing this paper nearly three decades after the reform of 1972, the Law Commission sought the views of several of New Zealand’s leading administrative lawyers – the Right Hon Justice Sir Kenneth Keith, who as a long-serving member of the Public and Administrative Law Reform Committee contributed notably to its work in this area, Professor Stuart Anderson and Associate Professor Andrew Beck of the University of Otago, Professor Michael Taggart and Janet McLean of the University of Auckland, Dr Rodney Harrison QC and Ailsa Duffy QC of Auckland, Associate Professor Philip Joseph of the University of Canterbury and Dr Graham Taylor, barrister of Wellington. All have greatly assisted the preparation of the present paper, whether or not they can identify their influence or agree with our proposals. The Rules Committee was also consulted. Grateful thanks are due to all of them.