10 September 2008

The Scope of Judicial Review: Who and What may be Reviewed?

Some more reading for people who have trouble sleeping at night. Below is a paper that Jenny Cassie and I prepared for and presented at the NZLS CLE's "Administrative Law Intensive" in August 2008.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - The Scope of Judicial Review: Who and What may be Reviewed? Jenny Cassie (Barrister, Thorndon Chambers, Wellington) and Dean Knight (Lecturer, Faculty of Law and Associate Director, New Zealand Centre for Public Law, Victoria University of Wellington)


This area is notorious for its terminological multiplicity and confusion. When discussing the concept of justiciability in the Australian context, Finn alludes to the confusion that exists about terms such as "jurisdiction", "justiciability", and the "limits of public law":

There is a complex relationship between questions of jurisdiction, justiciability and the limits of public law. At common law, these concepts are particularly difficult to separate. However, they remain analytically distinct. First, the outer limits of public law and its attendant remedies have traditionally been set by the public/private divide. Judicial review has been held to be available to remedy abuse of statutory and prerogative powers, but not abuse of contractual or other common law powers by the Crown. The latter powers are not unique to the Crown and any remedy for their abuse is said to lie in private rather than public law. In this sense, exercises of contractual power and other private law powers are sometimes said to be 'non-justiciable' at public law. But this is misleading for two reasons. First, misuse of such powers remains justiciable at private law. Private law remedies are potentially available. Second, 'non-justiciability' is a narrower concept than 'public power'. The mere fact that a power is classified as 'public' rather than 'private' does not entail its justiciability. Many prerogative, and arguably even some statutory, powers are still viewed by the courts as non-justiciable. The jurisdiction of the courts is also a separate concept. This is most evident when that jurisdiction is conferred by statute, such as the Federal Court's jurisdiction conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). ... Where jurisdiction is conferred by common law, it is likely to be coterminous with the limits of public power described above.

These three concepts combine to set a preliminary question in any judicial review application: is the decision capable of being reviewed by judicial review? It is important though to remember that that question has two quite distinct sub-questions:

  • first, does the Court have jurisdiction to review the particular decision?
  • secondly, assuming the decision is reviewable, is the decision justiciable?

As will be seen, the courts have sometimes fudged the distinction between these enquires or not made it clear whether their rational for non-intervention is a jurisdictional concern or non-justiciability concern. Consistent with the adopted elsewhere, this paper addresses the net effect of those questions by organising the types of decision-makers into matrix combining both institutional and functional perspectives: Questions of jurisdiction and justiciability have traditionally been explored through this perspective. The demarcation between public and private has tended to be addressed by marshalling the cases into their respective categories according to the outcome of the judicial enquiry, with the implicit corollary that the categories will serve as analogues for later cases. To a certain degree, we continue that tradition by later discussing the cases organised in a similar fashion. Before doing so, however, we think it important to discuss some of the difficulties with the public–private demarcation and to record some caveats about the nature of the enquiry. Also, as others have noted, questions such as this raise the full gamut of contextual factors; the outcome will depend on "a careful analysis of the nature of the decision-maker and of the subject matter (nature) and surrounding circumstances of the decision". The outcome tends to depend on an overall evaluative judgement or assessment of these factors, not formalistic application of precedent. [continues...]

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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