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Update on Judicial Review

NZ $30.00
Author(s): Janet McLean, Lyn Stevens QC, Helen Aikman
Published: 17 November, 2003
Pages: 38



Administrative law is a means to control abuses and potential abuses of power by public authorities such as Ministers, statutory office holders, local authorities and other bodies enjoying a sufficiently public character and function. It embodies the principles that govern the exercise by public authorities of their powers and duties. These principles promote democratic values, rationality and justification of executive decisions, openness, fairness and participation in government decision-making.

Administrative law principles are derived from a variety of sources. Judges frequently justify their supervision of exercises of discretion by the executive on the basis they are enforcing the policy and will of the legislature. Hence discretionary powers must be exercised according to statutory purposes and legislative scheme. Other administrative law values, such as the right to natural justice, derive from the common law itself. Increasingly the New Zealand, Canadian and United Kingdom courts are expressly founding administrative law values on “fundamental constitutional values”, “democratic values” and “international human rights instruments”. Increasingly too, Judges are raising the threshold beyond which such constitutional values can be displaced by statute.

Judicial review has traditionally focused on the process by which decisions are made. Judges supervise whether the decision was made by the correct person, following correct procedures and in accordance with correct criteria. However, a reviewing court does not (under orthodox understandings) have the power to make a decision in the place of the original decision-maker. The usual remedy is to send the decision back to the original decision-maker to be made again. This focus on judicial supervision of the process by which decisions are made, maintains a distinction between appeal and review.

In recent years some Judges have shown a new willingness to look at the weight that the decision-maker has given to particular factors. This begins to undermine the procedural rationale for judicial review and to collapse the distinction between review and appeal. There are a number of controversial areas where judges exercising the supervisory powers of judicial review appear to be more willing to supervise the substance rather than merely the process of administrative decision-making. In these areas the increasing impact of international human rights instruments, the Bill of Rights and ideas of the fundamental constitutional values of a substantive kind may be seen.

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