13 July 2009

"Intensity of anxiety"

Some folk will know that I'm presently working on a project proposing the adoption of different standards of review in judicial review. That is, a framework for the courts to calibrate the balance drawn between the counterveiling values of vigilance and restraint in any particular case. (See for example Dean R Knight "A Murky Methodology: Standards of Review in Administrative Law" in Claudia Geiringer and Dean R Knight (eds) Seeing the World Whole: Essays in Honour of Sir Kenneth Keith (Victoria University Press, Wellington, 2008) 180) In my project, I noted that our highest court has been reluctant to express a firm view on the intensity question, even though some of the lower courts have adopted it. And there were some hints that they weren't that excited by the idea anyway. Well, have a look at this exchange earlier this year in the Supreme Court. It perhaps suggests that many of the Court do not agree there is any need for structuring judicial discretion in this area: > Ye v Minister of Immigration SC 53/2008 (Transcript, 21-23 April 2009)
MR BASSETT: Through no fault of the children obviously, the same point. If I now can move just to the question of intensity of review, my submission is that this case could have been, and still can be, decided on the application of orthodox judicial review principles, however it is my submission that a hard look approach or a heightened level of intensity of review is nevertheless appropriate in a case such as this, notwithstanding that on a straightforward Wednesbury analysis, Mr Zhou’s actions are unreasonable and irrational in the administrative law sense. Justice Glazebrook at paragraph 303 referred to this case as being one which involved fundamental human rights of children and accordingly, she was of the view that this is a case where the Court should apply a standard of anxious scrutiny. I’d just like to make one or two brief comments about intensity of review which Your Honours will all be familiar with, but the basic proposition is that the level of intensity depends upon the nature of the right being interfered with by the decision making process and that the more fundamental the right, the higher the intensity of review and in this case, the right at issue is the right of a child to be looked after by its natural parents which, in my submission, is an important right and just a matter of basic humanity, even though it’s not a right protected by the New Zealand Bill of Rights Act 1990. TIPPING J: I would hope I would always have a hard look, the question is more, isn’t it, to the standard to which you hold the decision making? I don’t think it’s going to matter much in this case, but honestly, I can’t resist the temptation because you obviously have a good grip of this Mr Bassett, to put it to you that the degree of hardness of the look, I wouldn’t have thought was the point, it was the degree of the standard to which, in other words, it’s almost like degrees of reasonableness, the more fundamental the right, the more reasonable the decision must be. The idea that you look at it more closely, I’ve never found very helpful. ELIAS CJ: I don’t know that degrees of reasonableness help either. TIPPING J: No. ELIAS CJ: It’s just, it’s got to be contextual. What is reasonable takes its colour from the context. Really, there’s so much dancing around on the heads of pins in this area. MR BASSETT: I think the lingo, if you like, Your Honour, is a question of deference, less deference where the rights are more fundamental and more deference where it’s – ELIAS CJ: That’s a dreadful word. TIPPING J: It’s a controversial word. I understand the concept, you’re more exacting, if you like, the more fundamental – it’s a more exacting test, or – ANDERSON J: It connotes the extent to which a Court’s prepared to interfere. TIPPING J: Yes. ANDERSON J: However you describe it. TIPPING J: And the Court must interfere where it must. TIPPING J: You either feel driven to interfere or you don’t, and that will depend on what sort of a right it is and what the whole shebang is, I think this is a – ANDERSON J: It’s really intensity of anxiety. MR BASSETT: As has just been commented, the reason it’s being raised Your Honours is because Justice Chambers and Justice Robertson in the Court of Appeal said that, and indeed Justice Chambers in Huang said that the intensity would be light, to use that adjective, and I think that that – the lightness of review or the lightness of intensity is to some extent bound up with the fact that they, in Huang, let section 47(3) occupy the field, if you like. As I understand it, the Court appears to be taking a different view. TIPPING J: Please don’t think I’m personally being critical of you at all, I think it’s very important that you’ve raised it, but I’m just saying, I, together with I think the Chief Justice, I think there’s a lot of nonsense talked in this area and it’s unhelpful to start trying these adjectival or adverbial adornments of the sort of review you’re undertaking. MR BASSETT: Well perhaps, if you ask me the reason why I’m raising it – ANDERSON J: We can see why you’re raising it. TIPPING J: We can understand it, I can understand why. McGRATH J: It was a ground, it was specified in the grounds, and no one’s blaming you for it. TIPPING J: Yes, no one’s blaming you for one moment, we’re just – if you can shed some further light on this, but it really does seem to be a more semantic issue that in the end, you interfere if you think you should.

I know the last of remark of Tipping J has some pedigree ("whether something had gone wrong of a nature and degree which required the intervention of the court"; see R v Panel on Take-overs and Mergers, ex parte Guinness plc [1989] 1 All ER 509, 513 (CA) Lord Donaldson, endorsed on a couple of occasions by Lord Cooke).

But try teaching that to public law students at law school: judges overturn administrative decisions when they think they should! Well, at least, if that is the test, we can probably then dispense with the remaining 11 weeks of the 12 week judicial review course...

3 comments:

Anonymous said...

Heaven forbid judges should, yknow, interpret/create the law in a way that makes it more difficult for you to teach.

Anonymous said...

Dean, while applauding the attempt to extract some kind of overarching principle in this area, one can't also help but wonder if the "know it when you see it" test can adequately be replaced. As everyone seems to agree, context is everything, and perhaps there are just too many potential contextual dimensions to attempt a pseudo-codification?

Robin Johnson's Economics Web Page said...

Dean,
Just to recap to clarify my own understanding. Mr Bassett starts to make the distinction between 'orthodox judicial review' and a 'hard look' or 'heightened level of intensity'. He notes the presence of the fundamental human rights of children and that this may trigger a higher intensity of review - 'anxious scrutiny'. Then, while trying to submit that intensity of review should be related to how fundamental the human right, he is interrupted by Tipping J.

Tipping says he prefers to conceptualise the 'sliding scale' in terms of the standard to which the decision-maker is expected to adhere to, or 'reasonableness'. Elisa CJ says she does not like either 'degrees of reasonableness' or 'deference' (to the decision maker) but she wants context.

Mental note: never use the term 'deference' before Elias CJ!

And was Anderson J joking or making a pun when he said "It's really intensity of anxiety"? He is almost inventing his own formalistic definition there.

So, are the judges saying to Mr Bassett "don't give us a lecture on 'formalistic definitions' of judicial review, just give us the context, we will judicially review the decision, and others can place it on the 'sliding scale'" ?.

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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