13 Persons eligible to be third party (1) A person is eligible to be listed as a third party if the person is— (a) a New Zealand citizen or ordinarily resident in New Zealand; or (b) a body corporate that is not an overseas person within the meaning of the Overseas Investment Act 2005; or (c) an unincorporated body of which the majority of its members are persons described in paragraph (a). (2) The following are ineligible to be a third party: ... (f) a person involved in the administration of— (i) the affairs of a party; or (ii) the affairs of a candidate in relation to his or her election campaign.
The Electoral Commission has obviously made the judgement that the EPMU is not "involved in the administration of the affairs of a party". A number of people have expressed surprise at this conclusion, with the EPMU being affiliated in various ways to the Labour Party.
Now, I don't have a particular view either way whether that's correct or not. What I'm interested in is how a supervising court might review that decision, if a judicial review of the decision is taken in the High Court. The appropriate methodology is, I think, surprisingly unclear.
First, though, dealing with a matter which is clear. If the Electoral Commission has made an error of law and has misinterpreted the meaning of words or phrases like "involved in the administration" or "affairs of a party", then the High Court will intervene to correct the error (Peters v Davison). A "correctness" standard applies, that is, the court will focus on whether the Electoral Commission has applied the correct meaning. The courts consider it is "in fulfilment of their constitutional role as interpreters of the written law" to determine what the law means - no latitude or deference is given to an administrative body's interpretation of a statute (Bulk Gas).
Secondly, assuming the Electoral Commission has properly directed itself on the meaning of the section, the factual assessment or judgement of whether the EPMU satisfies the statutory standard is different.
On the one hand, there is an argument that that factual assessment circumscribes the jurisdiction of the Electoral Commission to act and register the body as a third party. Any error made in that (factual) assessment leads to the Electoral Commission exceeding the jurisdiction conferred by Parliament, meaning it has acted unlawfully; this mandates the High Court to intervene and overturn the decision (Zerek, White and Collins, and Khawaja; also (arguably) Discount Brands). Sometimes this approach is described as the doctrine of jurisdictional fact (or precedent fact). It represents a gloss on the usual principle that courts will be reluctant to intervene and overturn an administrative body's fact-finding, judgement, and - in general terms, the "merits" of the decision; such matters having been delegated by Parliament to the administrative body to determine, not the courts.
On the other hand, some of our courts have been sceptical about framing the approach in terms of jurisdictional terms. Instead, the courts have examined whether it is constitutional appropriate for the courts to intervene and substitute its view on a factual conclusion for that of the administrative body, based on a contextual assessment of the appropriate degree of deference to be accorded to decisions of the body (Hawkins). Relevant factors include the constitutional allocation of the function (and discretion) to the body by the legislature, the (comparative) expertise of the courts and body in making that assessment, the other (legal and non-legal) checks and balances that apply to that assessment within the existing legal regime, etc. The upshot of this more deferential approach is that the courts may determine that it is constitutionally appropriate for them not to second-guess the assessment of the Electoral Commission except if it is unreasonable in the traditional administrative law sense (usually, equivalent to "irrationality" but, in some cases, sometimes unreasonableness in its simple and ordinary sense).
For my own part, I think the better approach is to regard the supervision of "jurisdictional" fact-finding as being subject to a variable intensity of review, depending on the context. Elsewhere I've argued that a continuum of standards of review should apply:
(a) non-justiciable; (b) flagrant impropriety; (c) manifest unreasonableness; (d) simple unreasonableness; (e) incorrectness.
(See Dean R Knight, "A Murky Methodology: Standards of Review in Administrative Law" (2008) 6 NZJPIL 117 (forthcoming).)
Based on the particular context, any one of these standards might apply.
In this context, I suspect a contextual assessment of the nature, function, expertise and accountability of Electoral Commission suggests that it should be accorded some deference in relation to the factual assessment has been made, that is, the incorrectness standard (allowing the court to intervene simply because it disagrees with the factual assessment) should not apply. Most likely is that one of the reasonableness standards should apply. Given the significance of the factual conclusion in the overall regime, there might be an argument that it should be subject to the simple unreasonableness standard - that is, the Electoral Commission would be given some latitude, but not a lot, in making this assessment (or, in other words, the factual assessment need not trigger the stringent standard of "the defiance of logic" for the court to intervene).
I watch for any judicial review application with interest.