Marie Were

 Illegality: (week 14)

 This is another way of saying that the decision-maker got the law wrong

 Irrationality/Unreasonableness: (week 15)

 In administrative law, a decision-maker must act in a reasonable fashion
and the decision must rely on some reasonable basis
 An unreasonable decision is one which no sensible decision-maker,
acting with due appreciation of his/her responsibilities, would have
arrived at
 Procedural impropriety/unfairness: (week 16)
 Broadly speaking this covers all questions relating to the manner in
which a decision is reached
 NZ Bill of Rights Act 1990 & Treaty of Waitangi principles
(week 17)

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For week 14 (reading list, course materials)
 Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2
NZLR 341 in NZLR
 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 in NZLR

For weeks 15, 16, and 17

I will post the readings on Moodle for each week by Friday.

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 Abuse of discretionary power
 Bad faith
 Improper purpose
 Relevant and irrelevant considerations
 Policy rules and guidance

 Abdicating discretionary power

 Fixed rules of policy
 Fettering discretion
 Surrendering discretion
 Refusing or failing to exercise discretion
 Rules against delegation

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 A decision-maker acts outside the scope of his/her power where:
 The decision is made for an improper purpose (one not
contemplated by the legislation)
 The decision fails to take into account certain relevant matters
 The decision takes into account matters which are irrelevant and
should not be had regard to
 The decision is influenced by some factual error
 The decision-maker rigidly applies a pre-determined policy without
regard to the particular merits of the case
 The decision-maker acts under dictation from someone else
 The decision-maker has invalidly delegated a power that he or she
ought to exercise to another person or is acting pursuant to an
invalid delegation

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 A statutory authority acts in bad faith if it is actuated by
malice or fraudulent or dishonest motive. The holder
of a statutory discretion, although acting in good faith,
may also abuse his or her power by exercising it for an
improper purpose, or on irrelevant grounds, or in
disregard of relevant considerations.

Joseph Constitutional and Administrative Law in New Zealand

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 Duty of candour on decision-makers to explain process via
affidavit evidence

 [105] The courts in both New Zealand and the United Kingdom have
pointed out that the fact-dependent nature of judicial review means
that those whose decisions are challenged have a duty to explain the
decision-making process, the relevant factual and other circumstances
and the reasons for the decision – the so-called “duty of candour”. It is
not, of course, a legally enforceable duty, but rather a responsibility
attaching to public decision-making. Where such evidence is not
provided, a court may well draw adverse inferences...
 Ririnui v Landcorp Farming Ltd [2016] NZSC 62

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Ririnui v Landcorp Farming Ltd [2016] NZSC 62
 Landcorp Farming Ltd SOE, shareholding Minister for Finance and Minister
for SOE
 Landcorp is selling a large block, Wharere, in BOP. It advises Office of
Treaty Settlements under a non-binding protocol arrangement that the farm
was not of potential interest for future Treaty settlements. OTS' advice was
based on the erroneous belief that the claims of all iwi in the region had
been settled, when, in fact, Ngāti Whakahemo's claim had not been
 Landcorp put out for tenders for Wharere – and Ngati Whakahemo notified
Landcorp they had a claim on the land but OTS repeated it erroneous belief
as to no claims on the land.
 AT THE SAME TIME – OTS and another iwi Ngati Makino were in
discussions about the sale of Wharere – the iwi wanted it included in its
Treaty settlement – accordingly Landcorp were asked to delay the
awarding of the tender, did not do this for Whakahemo
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 It had been awarded to Micro Farms but tender was delayed to 28th Feb
2014 giving Ngati Makino and Ngati Whakahemo the opportunity to
tender. Nether iwi knew of the deadline. A board member of Landcorp
agreed to meet Ngati Whakahemo (7th March) – and the iwi were led to
believe that an opportunity to make a bid still existed
 HOWEVER 28th Feb – Landcorp went back into negotiations with Micro –
and finalised the sale of Wharere on the 3rd March.
 CA - although the OTS was wrong in law the decision was not reviewable.
It also dismissed the bad faith claims made by Ngati Whakahemo
 Supreme Court found that
 The sale and purchase of Wharere was tainted by both bad faith and
OTS’s erroneous advice
 The Crown was wrong as a matter of law when it determined it did not
have the power to intervene in the delay of the sale
 The sale of Wharere constituted wrongful exercises of public power
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 at [106] There is little doubt on the evidence that Ngati Whakahemo were, as a
matter of fact, misled into thinking that there was an opportunity for them to
put together a bid to acquire Wharere in early March 2014, and that they
attempted to do so. They did not file proceedings in the meantime.We
consider that an inference can fairly be drawn that Ms Houpapa intended to
mislead Ngati Whakahemo in this way, to buy time to enable the agreement
for sale and purchase with Micro to be finalised. We also consider that it is a
fair inference that Mr Carden was aware of this. Accordingly, we think it is fair
to conclude that there was bad faith (in the sense of a deliberate attempt to
mislead) on the part of both.

 Ngati Whakahemo was successful on the 3 findings, but did not get
the sale set aside. It was validated.

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 The decision is made for an improper purpose (one not
contemplated by the legislation)
 A power granted for one purpose must be used for that
purpose and not for some unauthorized or collateral purpose.
Thus a power to make a transfer of a public servant on
administrative grounds may not be used to effect disciplinary
action. The ground of improper purpose does not require proof
that the decision-maker acted knowingly or in bad faith but
covers the unintentional or mistaken application of public
power.
Joseph Constitutional and Administrative Law in New Zealand

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Attorney-General v Ireland [2002] 2 NZLR 220 (CA)
 DOC administered reserve land under the Reserves Act 1977
 North Head Reserve had historic buildings located which DOC
converted to be used as Auckland area administration office
 Question whether DOC acted unlawfully in accommodating
area office in building on North Head Reserve while also
seeking to preserve, protect and enhance the reserve
 HC Potter J found DOC powers limited under Reserves Act 1977
to administration of reserve – i.e. precluded location of area
office

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CA argument rested on the fact that while one purpose pursued
by DOC was clearly within the statute – there was also another
purpose – the establishment of the offices

CA Keith J held that unauthorized purpose would need to

“thwart or frustrate” statutory purpose of Reserves Act 1977 to
be invalid”
 … because the statutory purpose is satisfied and the
additional purpose and use do not in any way prejudice that
purpose, the additional purpose and use do not make the
departmental action unlawful’

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 A power may be conferred for incidental or ancillary purposes
and lack any connection to the statutory objects. Where an Act
has several purposes, the court may have to decide whether a
statutory power can be invoked for all or for only some of
specified purposes. Where the lawful exercise of a power is
predicated on the opinion of the decision-maker … the decision-
makers opinion is not conclusive and the courts will inquire
whether the opinion could reasonably be held, having regard to
the statutory purposes. It is immaterial that a decision made for
an unauthorized purpose could, in the circumstances, have been
made for a valid or an authorized purpose.
 Joseph Constitutional and Administrative Law in New Zealand

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 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
(HL); [1968] 2 WLR 924; [1968] 1 All ER 694
 Facts: Under the scheme, the Milk Marketing Board fixed the prices farmers were
paid for their milk. There were 11 milk regions which made up the Milk
Marketing Board – Southeast was a minority group
 Farmers in the South-East complained to the Board that the price they were
being paid was too low and did not reflect growing costs
 Because the Board refused to alter the price, the farmers asked the Minister to
exercise his power under s 19(3) of the Act so as to direct that their complaint be
considered by a committee of investigation.
 The Minister refused. Section 19 provided for referral “if the Minister in any case
so directs”

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 Minister argued that his only duty was to consider a complaint fairly
and that he had an unfettered discretion whether or not to refer. CA said
the Minister’s discretion could not be challenged
 HL - Lord Upjohn emphatically rejected the notion of unfettered
discretion
 In this case, the Minister pursued an improper purpose when he declined to
refer a complaint for investigation because it might have caused him
political embarrassment
 Lord Reid observed:
 “Parliament must have conferred the discretion with the intention that it
should be used to promote the policy and objects of the Act; the policy and
objects of the Act must be determined by construing the Act as a whole and
construction is always a matter of law for the court.”
 Padfield is also an example of abdicating discretionary power by
refusing or failing to exercise discretion

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 The decision fails to take into account certain relevant matters
 The decision takes into account matters which are irrelevant and
should not be had regard to
 The exercise of a discretionary power, even for a proper purpose,
may be invalid if the decision-maker is influenced by
considerations that ought not to be taken into account, or if the
decision-maker fails to take account of relevant considerations.
 Joseph Constitutional and Administrative Law in New Zealand

17
Fiordland Venison Ltd v Minister of Agriculture 1978] 2 NZLR 341
(CA)
 New regulations were introduced by the Meat Amendment Act 1975 and
the Game Regulations 1975. The Regulations required the Minister to
grant a deer processing and export licence once the Minister was
satisfied as to certain matters.
 Minister declined Fiordland’s application – letter stated ‘the application
was declined because the applicant did not meet the new criteria’… [and
further] ‘no other considerations have influenced the Minister or Ministry
in relation to this application’ - Court described the letter as ‘almost
valueless’
 The Game Regulations Act 1975 had 5 criteria –
 Richardson J: ‘The minister’s decision was invalid because it had been
made as a result of a ‘misunderstanding of the test required under the
regulations’

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 Woodhouse and Cooke JJ:
 Regulations required Minister to consider “series of specific and apparently
carefully limited questions”
 Minister was acting judicially and “unfortunate” no reasons given
 Affected persons are “entitled to an explanation” – apart from exceptional
cases
 Regulations allowed Minister to override criteria to grant a licence where
that would ensure that the game industry would be competitive
 Held that this did not provide the Minister with a residual discretion to
decline applications but found that the Minister had declined the
application because
 “he was of the opinion that a rationalised industry could function
satisfactorily without a licence at Te Anau”
 Held that rationalisation “was not a ground authorized by the
regulations”
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 Anisminic Ltd v Foreign Compensation Commission [1969] 2
AC 147 (HL)
 Statutory criteria can operate as “conditions precedent” – i.e. must
be met before decision made
 Likewise criteria can be listed “exhaustively” or generically – and
sometimes the statute may be completely silent
 Question in Anisminic was whether statute enabled Commission to
require applicants for compensation to satisfy matters not listed in
the relevant statutory criteria
 Mining company assets seized by revolutionary government in
Egypt (1956) then destroyed in Egypt-Israel war & company
applied for compensation from fixed fund paid by Egypt to UK
government
 Found to be mistake of law resulting in Commission taking irrelevant
considerations into account
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 Most statutory empowering provisions set out criteria that will govern the
exercise of discretion. However, not all matters or criteria specified [i.e.
relevant considerations] must as a matter of obligation, be taken into
account. There are two classes:
 Mandatory considerations are ones the decision-maker must take into
account;
 Permissible considerations are ones the decision-maker may take into
account, according to its inclination or judgment.
 The more “general and the more obviously important the consideration,
the readier the court must be to hold that Parliament must have meant it to
be taken into account.
 Where a decision-maker must give due weight to mandatory
considerations, it must have “reasonably adequate information” and
“sufficient information to allow a reasonably informed decision”.
 Joseph Constitutional and Administrative Law in New Zealand

21
 Abuse of discretionary power
 The grounds of invalidity under abuse of discretionary power “overlap
to a very great extent” and “run into one another”.
 If a decision-maker has more than one purpose, or takes into account
several considerations where only some are authorized, the decision
will stand if:
 any unauthorized purpose was not the true and dominant purpose
behind the decision; or
 any irrelevant consideration did not materially influence the decision.
 The courts will be careful to ensure decision-makers do not feign
authorized purposes by concealing the true reasons for action.
 Even if the purpose pursued or the matter considered seems justified in
the public interest or on policy grounds, the court will invalidate the
decision if it is unauthorized.
 Joseph Constitutional and Administrative Law in New Zealand 22
 A public authority must not disable itself from exercising its discretion in
individual cases. When an authority is entrusted with discretionary powers,
discretion must be brought to bear in every case. Each case must be
considered on its merits and decided as the statute and public interest may
require. An authority must not:
 Adopt a fixed rule of policy;
 Act under dictation of another;
 Fetter its discretion by contract or representation;
 Refuse or fail to exercise its discretion; or
 Sub-delegate its powers.
 Joseph Constitutional and Administrative Law in New Zealand

 See Carltona Ltd v Commissioners of Works & Others [1943] 2 All ER 560
 Did the Commissioners abdicate its discretion?
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 The decision-maker rigidly applies a pre-determined policy without
regard to the particular merits of the case
 A decision-maker entrusted with a discretion must not allow a fixed
rule of policy to displace personal judgment. Discretion must be
exercised in a “real and genuine sense”.
 Decision-makers are not expected to operate in a vacuum. The
courts do not object to the adoption of policy rules, provided they
leave room for judgment and discretion:
 “[T]o give effect to the broad purposes of the legislation,
general working rules or guidelines can be evolved, so long as
they are not elevated into something inflexible.”
 It is a reviewable error of law for a decision-maker to misconstrue or
fail to apply policy rules or guidelines voluntarily adopted.
 Joseph Constitutional and Administrative Law in New Zealand

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 British Oxygen Co Ltd v Minister of Technology [1970] 3 WLR 488
(HL)
 BOC applied for grant to offset £20 cost of gas cylinders under the
Industrial Development Act 1966 –
 Board of Trade declined application based on policy that only items
valued £25 or more qualified for grant and ‘vehicles were ineligible’.
 Appellants argued it was an ‘inflexible rule’ and therefore there had been
no decision at all
 Lord Reid stated
 The general rule is that anyone who has to exercise a statutory
discretion must not ‘shut his eyes’ to the application … What the
authority must not do is to refuse to listen at all. But a Ministry or large
authority may have to deal … with a multitude of similar applications
and then they will almost certainly have evolved a policy so precise
that it could well be called a rule. There can be no objection to that,
provided that the authority is always willing to listen to anyone with
something new to say.
 The fixed policy ground for review failed.
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 It is said that the Crown and public bodies cannot, by
contract or representation, fetter their future freedom of
action:
 There is a general principle of law that a public
authority cannot preclude itself from exercising
important statutory powers or performing public duties
by incompatible contractual or other undertakings.
 Joseph Constitutional and Administrative Law in New
Zealand

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 The decision-maker acts under dictation from someone else
In Roncarrelli v Duplessis [1959] S.C.R. 121
 Frank Roncarelli was a successful restaurateur in Montreal. His
restaurant, Quaff, had received a liquor licence for 34 years. He was
also a Jehovah’s Witness.
 the Premier of Quebec took exception to Roncarrelli being a
member of JW and had instructed the licensing commission to
revoke his liquor licence.
 the Supreme Court of Canada struck down the decision of the
licensing commission because it had acted on the instruction of the
provincial Premier.

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 When viewing the statute the question must be asked
 what was the context, legal or otherwise, does the statute
use a particular word or phrase (sometimes known as a
statutory description/definition) ?
 If the legislative intention is that the word or phrase is given
its ‘ordinary’ meaning – then this is a question of fact
 If the legislative intention is that the word or phrase be given
a ‘technical legal’ meaning – it is a question of law

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 Where the courts have found
 A ‘wrong’ finding of fact
 A ‘perverse finding of fact
 A finding of fact ‘contrary to the overwhelming weight
of evidence’
 A finding of fact ‘against the evidence and the weight of
evidence’
 A finding of fact that ‘ignores the probative force of the
evidence which is all one way’
 A finding of fact that ‘no reasonable person could have
made’
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Fiordland Venison Ltd v Minister of Agriculture [1978] 2 NZLR 341
(CA)
 Regulations required Minister to grant license the five criteria set out in
the regulations had been met

 Court inferred that Minister declined the licence as he did not feel
another processing plant was necessary – this is NOT one of the five
criteria set out in the regulations

 CoA declared that the applicant was entitled to a licence since any
economic flow-on effect was not listed in the regulations and was
irrelevant to the exercise of the Minister’s discretion.

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Fiordland Venison Ltd v Minister of Agriculture [1978] 2 NZLR 341
(CA)
 Richardson J
 Found that the Ministry report included “value judgments” that
there was no economic justification for granting Fiordland a
licence
 Found that the level of factual information in the report lacked the
“particularity” necessary for the Minister to apply the correct legal
test under the regulations
 Concluded that the decision was invalid because the Minister had
misunderstood the test under the regulations

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 The decision is influenced by some factual error
 Secretary of State for Education v Tameside MBC [1977] AC 1014
(HL)
 Newly elected Conservative council reversed decision to abolish
grammar schools
 Minister directed council to abide by original decision as this would
cause “considerable difficulties” at imminent start of new school year.
However, the Minister could only give this advice if the he was satisfied
that the local council had acted unreasonably
 Decision is influenced by a Mistake of fact – the Minister’s precondition
did not exist (i.e., the council had not acted unreasonably)

 Lord Wilberforce: “Given that the council had a political mandate to pursue
the grammar schools policy and massively supported by parents, it would
be impossible for the Secretary of State to conclude that the decision was
Wednesbury unreasonable.”
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 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA)
 Minister stated in decision letter confirming deportation of Mrs
Daganayasi that he had regard to best and most up-to-date medical
advice regarding her NZ born son
 D alleged that the Minister was mistaken because he had not
consulted the clinic in Fiji to where she and her son would be
deported
 Cooke J (applying Tameside) found that the Minister should bear
responsibility for any misleading or inadequate report prepared by
a delegate (medical referee)
 This ground of review is akin to failure to have regard to relevant
considerations (Anisminic)

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