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Butterworths Questions and Answers
Butterworths Questions and Answers
Index :)
1. Advice on exams 2. English Constitutional History and the Royal Prerogative 3. Parliamentary Sovereignty 4. The Rule of Law 5. Separation of Powers and Judicial Independence 6. Constitutional Conventions and the Reserve Powers 7. Judicial Review 8. The New Zealand Bill of Rights Act 1990 9. Maori and the Crown
This is not extra work, it is saving you from doing it all at the end of year in one go. For each case that you study, you should be familiar with the material facts: The ratio decidendi
What policy considerations (if any) influenced the Court in its decision. Should also try to develop a view on whether you think the case is a good or bad decision.
Summarise each weeks study notes. Think of public law as being like a tree: Every area of law is very much like a tree. There is a sturdy trunk going up the middle, which contains all the key principles running through that area of law. Then, there are branches leading off the- main truck, each of which deals with a particular topic or unit that you will cover. Finally, there are leaves, which are like the particular cases and statutes that provide the precise rules and details. Except for perhaps short answer questions, most Qs are usually set in such a way to let you show the examiner that you know what the particular trunk or branch of law that you have studied looks like. Examiners are usually less concerned with the leaves. If your answer shows that you are familiar with the key principles, you will be well on your way to a good answer. In short, try to ensure that your answer looks more like a tree (with a clear structure of trunk and branches) than an unorganised pile of leaves.
The prerogative today continues to provide the legal authority for much of what the executive branch of the government does. The following lists some important surviving prerogative powers: 1. The external affairs prerogative for example, the power to enter into treaties at international law. 2. The prerogative of mercy the power to pardon criminals. 3. The defence prerogative. 4. The power to summon, prorogue (postpone) and dissolve Parliament. 5. The power to grant the royal assent to Bills passed by Parliament and thereby give them the force of law. 6. Conferment of honours the power to make someone a member of the New Zealand Order of Merit. 7. Various immunities, including the Crowns immunity from statute. This is now codified by s 27 of the Interpretation Act 1999.
Malone v Metropolitan Police Commissioner [1979] Facts: The Chancery division of the High Court of England and Wales held that it was legal for the Secretary of State (an English minister) to authorise the tapping of the plaintiffs telephone calls by the Post Office. The Court concluded that tapping was legal because it was not prohibited by any statute, the criminal law, or tort law. Arguments for and against this power: It has been argued that this third source of state power is undesirable because it gives the state a broad discretionary power without the safeguards that often accompany statutory powers. Such power is more concerning in the hands of the state than in the hands of private individuals because of the states vast resources. In response it can be argued that the Crown needs such a general power, and that it makes no difference whether it is conferred by statute or the common law. In this instance the real problem appears to be the absence of adequate privacy laws. If there has been something akin to a tort of privacy in England, Malone might have been decided differently
Fitzgerald v Muldoon Facts: During the 1975 election campaign, the National Party campaigned against the superannuation scheme established under the New Zealand Superannuation Act 1974. Immediately after winning the election, but before Parliament had resumed sitting, the leader of the National Party and Prime Minister-elect, Robert Muldoon, announced that government departments should cease to administer the 1974 Act. The plaintiff, a public servant, sued Muldoon, seeking a declaration that
Muldoons statements were illegal. The plaintiff argued that Muldoon had attempted to suspend a statute by regal authority without Parliaments consent in contravention of cl 1 of the Bill of Rights 1688. The Court held for the plaintiff. Under New Zealands current constitutional arrangements a great deal of power is vested in the Cabinet. Fitzgerald v Muldoon shows that the Bill of Rights 1688 is still and important check on the power wielded by Cabinet. It helps to ensure that the Cabinet does not rule entirely without Parliament.
Common pitfalls:
Confusion about the nature and source of prerogative power. Confusion about the sequence of the main events in the battle between Parliament and the monarch in the seventeenth century.
After 1688 Parliament was increasingly seen as the champion of individual rights. The Courts, having largely sided with the monarch during the 17th century battles and having not been independent of the monarch until 1700, were in no position to assert political power over Parliament. The Stuarts (the Royal House between 1603 -1714) had claimed absolute and unlimited power under the divine right of kings. When the monarchy was defeated, Parliament claimed unlimited power for itself.
(b) Has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts. Certain constitutionally important provisions (for example s 168, which sets out the method of voting, and the definition of the term general electoral population in s 3(1)) are described by s 268(1) as reserved provisions. A provision like s 168 is singly entrenched because the entrenching provision (that is, s 268(2) the provision which states that s 168 cannot be amended by a simple 50 per cent majority of the votes in Parliament) is not itself entrenched. Thus, s 168 can be amended or repealed by a simple majority. That is to say, s 268(2) could be repealed by a simple majority in Parliament, and once it has been repealed, a simple majority could pass a separate Bill amending s 168. Double entrenchment exists where an entrenching provision is itself entrenched. A provision like s 168 would be doubly entrenched is s 268(2) read as follows: (2) No reserved provision shall be repealed or amended unless the proposal for the amendment or repeal (a) Is passed by a majority of 75% of all the members of the House of representatives; or (b) Has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts; And this section itself may be amended of repealed only if the proposal for the amendment or repeal
(c) Is passed by a majority of 75% of all the members of the House of Representatives; or (d) Has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts. There are no doubly entrenched provisions in New Zealand or the United Kingdom. However such provisions do exist in Australia, Germany, the US, and in many other countries. In the UK and New Zealand there is a debate about whether, if Parliament enacted a doubly entrenchment provision, the Courts would accept that double entrenchment prevented the amendment of the entrenched provision by a simple majority. One camp argues that double entrenchment is simply not recognised by English (and NZ) law at present. The rules that define the procedures by which Parliament makes legislation cannot be amended by Parliament so as to impose constraints on future Parliaments. It would be a revolution if the Courts upheld any limits that Parliament imposed on itself. The other maintains that the rules which govern how Parliament operates, and what validly qualifies as a statute, are common law rules, and that Parliament can therefore amend them. Thus, a common law rule currently says that a bare majority in the House of Representatives is required to enact legislation, but Parliament could override that common
law rule and provide that a 75 per cent majority is required to enact certain types of legislation. There is a distinction between procedural and substantive limitations on parliamentary sovereignty. Procedural limitations increase above a simple majority the percentage of the votes in a legislature that is required to pass certain types of legislation. Substantive limitations prevent a legislature from passing certain Bills no matter how much support they have.
Many of those who accept that the UK or NZ Parliaments could adopt procedural limitations of their sovereignty argue that substantive limitations are impossible. Cooke P Practicalities of a Bill of Rights: Whether the Courts would uphold a doubly entrenched Bill of Rights depends ultimately on their view of the will of the electorate and on broad public support. Legal logic alone cannot provide an answer.
Shaw v Commissioner of Inland Revenue In this case the Court of Appeal suggested that even if Courts can strike down legislation, they can do so only in the event of a very serious constitutional crisis. Furthermore, Parliament has recently reaffirmed the doctrine of parliamentary sovereignty in the Supreme Court Act 2003, s 3(2) of which declares that nothing in that Act affects New Zealands continuing commitment to the sovereignty of Parliament.
Despite the fact that NZ and UK Courts often endorse Parliamentary sovereignty, they regularly ignore Parliaments will in relation to ouster or privative clauses. These are provisions in legislation that prohibit the ordinary Courts from judicially reviewing the decisions of specialist tribunals or persons on whom legislation confers discretionary powers.
Despite some suggestions to the contrary, the generally accepted position is that the Treaty of Waitangi does not limit Parliaments legislative powers in any way.
The Courts will not strike down legislation that is inconsistent with international law: o In R v Pora the Court of Appeal accepted that the Criminal Justice Amendment Act (No 2) 1999 breached New Zealands international obligations, but no suggestion was made that this entitled the Court to strike down the Act.
Finally, the Governor-General can withhold the royal assent to prevent a Bill from becoming law. Such action would breach the fundamental constitutional convention that the royal assent will not be withheld. It would be taken only in the event of a serious constitutional crisis perhaps if Parliament attempted to change a fundamental aspect of the constitution without widespread public support, and without the proposed change having been put to the electorate during an election campaign. Things to note: Parliamentary sovereignty or supremacy is a common law concept. It is completely unrelated to the notion of a nation states sovereignty at international law, which refers to a states power to enter into treaties at international law and its right not to have other states interfere with its domestic affairs and territory. There are many nations that have sovereignty at international law, but to whose legislatures parliamentary sovereignty does not apply (for example, the US, Germany, and Australia). Dont be concerned about the fact that there are no clear answers to some of the questions raised, i.e. whether the Courts uphold double entrenchment. Simply point this out in an exam answer.
Common pitfalls:
Parliamentary sovereignty or supremacy is a common law concept. It is completely unrelated to the notion of a nation states power to enter into treaties at international law and its right not to have other states interfere with its domestic affairs and territory. There are many nations that have sovereignty at international law, but to whose legislatures parliamentary sovereignty does not apply (for example, the US, Germany, and Australia). Confusion about the meaning of the terms single entrenchment and double entrenchment. Do not be concerned about the fact that there are no clear answers to some of the quns raised in this section (for example, whether the Courts uphold double entrenchment). Simply point this out in an exam answer.
The importance of the rule of law has now been expressly recognised in the Supreme Court Act 2003, s 3(2) of which provides that nothing in that Act affects New Zealands continuing commitment to the rule of law. Although now recognised by statute, the rule of law is not defined by statute. Indeed a precise definition is elusive. For some, the rule of law means law and order. On another view, the rule of law simply means that the state is bound by the law as much as private citizens. However, even the most despotic regime can provide law and order, and be bound by its own tyrannous laws. Thus, such definitions are wanting, as they fail to distinguish democratic government from totalitarian regimes.
Secondly, the rule of law meant: Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts; the rule of law in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.
Thirdly, the rule of law could be used as a formula for expressing the fact that: The law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as
defined and enforced by the Courts; that, in short, the principles of private law have with us have been by the action of the Courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.
Common pitfalls:
When discussing the term rule of law in an examination, specify precisely what you mean by this term. The term has been used to refer to a variety of differing concepts and ideas, not all of which are mutually consistent.
How the branches can check on each other: The President acts as a check on Congress because he/she can veto legislation. o A presidential veto can only be overridden by a two thirds vote by each of the two houses. The President can enter into treaties and appoint Judges, ambassadors and other officers of the US, but the Senate must approve treaties by a two thirds majority, and appointments by a simple majority. The President can be impeached by Congress and removed from office for treason, bribery, or other high crimes and misdemeanours. Separate elections are held for the Presidency and membership of congress, and the terms of office for each are different. o Often the President is from a political party different from that which has a majority in one or both of the two Houses. Each House acts as a check on the other, because Bills must be passed by both Houses to become law. o One political part may have a majority in the Senate and another in the House of Representatives. The federal Courts, the highest being the Supreme Court, have the power to review the legality of actions of the executive branch. Furthermore, in the famous case Marbury v Madison (1803) 1 Cranch 103, the SC held that the federal Courts have the power to strike down Congresss legislation if it is inconsistent with the Constitution, although the Constitution does not expressly confer any such power on the Courts. Congress can impeach Judges, and Judges interpretations of the Constitution can be overturned by amendment of the Constitution, although such amendments are rare.
5.1.3 France
The French Constitution of 1958 lies between the US presidential system and NZs Cabinet system.
The constitution embraces the first and second interpretations of the doctrine of separation of powers, but not the third. Thus, the ordinary Courts are given no power of review over the acts of the executive and legislative branches. The acts of the Executive are reviewed by special administrative Courts that are part of the executive branch, although independent of the political part of the executive. A Constitutional Council reviews legislation. Furthermore, the French President has no power to veto legislation.
Common pitfalls:
Do not run the separate interpretations of the doctrine of the separation of powers together in essay answers. Although they overlap to some extent, be sure to discuss them separately and to distinguish among them.
6.1.1 Functions
Dicey suggested that the main function of constitutional conventions was to ensure that the prerogative powers that the law vested in the monarch were exercised in accordance with the wishes of the people, rather than the whims of the monarch. It is true that this is the role of the most important conventions, which establish responsible government. However, many conventions are unrelated to the monarchs prerogative powers. Generally, conventions restrain formal legal
powers and ensure that they are exercised in accordance with the publics expectations. They make the constitution flexible by permitting constitutional change without formal legal change. Constitutional conventions arise from precedent or agreement. If, when a novel constitutional questions arises, political actors act in a manner which commands widespread approval, their conduct may establish a precedent and thereby a new constitutional convention. Alternatively, a convention may arise from a formal agreement entered into by political actors.
Conventions are obeyed because (examples): They have moral force. They reflect widely held expectations about constitutional behaviour. Because breaching them will have adverse consequences for those who breach them or for the constitutional system generally. Because of habit. A convention may cease to exist if it is breached repeatedly without the breach attracting widespread criticism.
The most fundamental convention is that which requires the Sovereign or G-G to exercise his or her prerogative and statutory powers in accordance with the advice tendered by ministers commanding the confidence of a democratically elected legislature. The convention that the NZ G-G (and other Dominion G-Gs) must act on the advice of Dominion governments rather than on the advice of the UK Government was established by agreement at the Imperial Conference of 1926. Collective ministerial responsibility: Another fundamental convention is collective ministerial responsibility. The unanimity aspect of the convention prohibits individual ministers from publicly disagreeing with a Cabinet decision once it has been taken. Also, Cabinet discussions are confidential. Once Cabinet has decided to pursue a certain policy, individual ministers cannot reveal what alternative policies were considered and who supported them.
After the 2005 general election, the convention of collective ministerial responsibility was modified further, to allow the leaders of two non-government political parties (NZ First and United Future) to assume ministerial roles outside of Cabinet, without their parties formally joining the Executive Government. Individual ministerial responsibility: This convention requires individual ministers to explain their own actions and those of their departments to the House. They must also remedy shortcomings in their depts., and inform the House of their efforts. The conventions may require a minister to resign for serious misconduct (either personal or a breach of a constitutional convention), but resignation is rare where a minister simply makes an error or judgement or where departmental employees act incompetently without the ministers knowledge. Often Cabinet will balance the political cost of retaining the minister against the cost of losing his or her expertise should they resign. If Cabinet resolves that a minister should stay on, Cabinet as a whole will defend the minister.
Some other conventions: Require the Sovereign to appoint as G-G of a commonwealth country the person nominated by the Prime Minister of that country. Prohibit Parliament from enacting oppressive legislation. Require that public servants be politically neutral and shielded from political criticism. Limit the ability of politicians to criticise the judiciary.
Common pitfalls:
Ministers are often criticised by the media and by opposition politicians for failing to resign even when they or their departments make relatively trivial errors of judgement. Individual ministerial responsibility does not require resignation in such circumstances.
Most judicial review cases are concerned with ensuring that those on whom Parliament has conferred discretionary statutory powers do not use their powers improperly, or in breach of certain basic rules of fairness. It is needed for separation of powers; however, some decision-making powers are not subject to judicial review, most notably Parliaments power to enact legislation.
Council of Civil Service Unions v Minister for the Civil Service Lord Diplock stated that there are three grounds of review: 1. Illegality 2. Procedural impropriety 3. Irrationality The core elements of judicial review are old, but the scope (in terms of the types of decisions Courts are willing to review and the types of errors for which they quashed decisions) was modest until recently.
The expansion of the welfare state during the 19th and 20th centuries led to an increase in state power, and to an increase in the number of wide discretionary powers conferred by Parliament on executive decision makers. Courts began responding to this from the 1950s onwards by increasing the scope of judicial review. The Courts justify judicial review on the basis of the legal fiction that Parliament cannot have intended to permit a decision maker to violate the three grounds of review. When the grounds of review are violated, a decision is described as ultra vires beyond the power that Parliament conferred. Even where a statute provides that the Minister may issue a permit if he thinks fit, a Court will hold that judicial review principles apply. In R v Somerset County Council, Laws J said that there is no such thing as an unfettered discretion, as these would be inconsistent with the rule of law. A Courts role when hearing a judicial review application is different from its role when hearing an appeal. Where a Court hears an appeal, it is required to decide whether the person who made the decision appealed from made the right decision. When a Court is judicially reviewing a decision, it may not overturn the decision under appeal merely because it thinks that the decision was wrong on the merits. The Court can intervene only if the decision maker adopted the wrong process in reaching the decision (irrelevant matters taken into account, bias and so on). Parliamentary sovereignty and the separation of powers are the reasons for this distinction.
If Parliament confers a statutory decision-making power on a minister and does not provide for an appeal to a Court, a Court would be violating the doctrine of Parliamentary sovereignty if it were to overturn the ministers decision simply because it did not agree with it. Parliament has instructed the minister, not the Court, to make the decision. Even where a Court finds that a decision maker has adopted the wrong process in reaching a decision the Court will rarely replace the decision makers decision with a decision of its own. Instead it will generally quash the decision (that is, to declare that it has no legal effect) and direct the decision maker to reconsider. Judicial review comes at a price. While it helps to uphold the rule of law and basic principles of fairness, judicial review applications are costly for the state to defend, may delay implementation of important public policies, and prevent government departments from functioning efficiently. Courts are at times influenced by such considerations. Finally, note that the Judicature Amendment Act 1972 was enacted to simplify the complex procedural rules that governed judicial review before its enactment. The Act applies only to review of the exercise of statutory powers. 7.2 Standing Complex rules once existed which specified who was sufficiently affected by an administrative decision to be able to seek judicial review. These rules have been relaxed considerably, and you will probably not study them in detail.
7.3 Privative or ouster clauses Parliament often attempt to prohibit the Courts from reviewing decisions made under statutory powers. A statutory provision that states that a decision makers decision shall not be quashed by any Court or shall not be questioned in any Court or something similar s a privative or ouster clause. The Courts have always held that privative clauses could exclude judicial review only if there was no jurisdictional error of law. Anisminic Ltd v Foreign Compensation Corporation HoL held that virtually all material errors of law go to jurisdiction.
Thus, because ouster clauses protect against only errors of law that do not affect jurisdiction, all material errors of law can now be reviewed despite the presence of an ouster clause. Material means that the error must affect the outcome of the case. Any breach of the three grounds of review discussed below will qualify as an error of law. Although the Courts have held that ouster clauses which attempt to prevent judicial review entirely cannot prevent review where a material error of law has been made, they are willing to give effect to time ouster clauses. If a statute provides that a decision makers decision shall not be quashed once six weeks have expired since the date of the decision, a Court will probably refuse to quash the decision after six weeks even if a material jurisdictional error has been made: see R v Secretary of State for the Environment. 7.4 Public function A Court will normally review decisions made by a member of the Executive, an inferior Court, an administrative tribunal or a statutory body. But; R v Panel on Take-Overs and Mergers The decisions of a body that is not established by statute and which is not exercising any statutory or prerogative or common law powers can be reviewed if the bodys function is public. Dunne v CanWest TVWorks Ltd Ronald Young J held that a decision by a privately owned broadcaster arbitrarily to exclude two political party leaders from an election debate amounted to the exercise of public power and was susceptible to judicial review. 7.5 Justiciability In the past the Courts took the view that once it was established that a certain act fell within a prerogative power, it could not be reviewed. I.e. Curtis v Attorney-General
The CA held that the decision by the Minister of Defence to disband the air combat force of the RNZAF is not justiciable, because that is a matter for government policy and it is constitutionally improper for the Courts to question such decisions.
Council of Civil Service Unions v Minister for the Civil Service The HoL held that there was no reason why an act should be unreviewable merely because it fell under the prerogative rather than a statutory power. It was held that anything done under the prerogative could be reviewed by applying the same grounds of review which apply to statutory powers, provided that what was done under the prerogative was justiciable. Lord Roskill identified as being non-justiciable: Decisions under the prerogative relating to national security. Entry intro treaties at international law. The dissolution of Parliament. Mercy. The grant of honours.
Such decisions cannot be reviewed because they involve political judgement on the part of the decision maker, and major questions of public policy. Courts feel unable to second-guess such decisions because there are no clear standards in relation to which they can be assessed. Courts rather take the view that politicians should be held to account for such decisions only by the electorate at a general election. Burt v Governor-General NZCA adopted CCSU. Cooke P held that the G-Gs refusal to grant the applicant a pardon (refusal to exercise the prerogative of mercy) could not be reviewed, although he suggested that the Court might reconsider its position if there was evidence that the NZ criminal system was not working well. Justiciability applies to statutory powers as well: CREEDNZ v Governor-General It is important to stress that the Courts today rarely refuse to review something done under a statutory power on the basis of non-justiciability. Even if a Court finds that a decision is nonjusticiable, it may be willing to review it in exceptional circumstances, and on very limited grounds. It may review only if fraud, corruption, or bad faith is established, but refuse to review the decision on normal grounds of review.
7.6.1 Illegality
The illegality ground has eight different limbs. 1) Improper purpose Courts will ensure that decision makers do not exercise their statutory powers for purposes for which they were not intended to be used. Where a statute does not expressly state that the purpose for which a power is conferred, a Court will read the statute as a whole and attempt to identify its objectives. Decisions that stem from fraud or malice are always ultra vires. 2) Irrelevant considerations A decision maker must not take irrelevant considerations into account when exercising a statutory power. Statutes rarely list factors that may not be taken into account. When identifying irrelevant considerations the Courts normally draw on the policy and language of a statute. Note that the improper purpose and irrelevant consideration limbs will often overlap. 3) Mandatory irrelevant considerations When deciding whether to exercise statutory powers, decision makers must take permissible relevant considerations into account, but are not obliged to do so. There are also matters that they must take into account. These are mandatory relevant considerations. A statute may expressly state that certain factors must be taken into account, or a Court may, as the result of a process of statutory interpretation, read mandatory relevant considerations into a statute. Courts are slow to read implied mandatory relevant considerations into statutes without there being any basis for doing so within the statute. Note that the law generally does not prescribe what weight must be given to a mandatory relevant consideration. It is enough if decision makers simply turn their minds to them. 4) Improper delegation Where a statute confers a decision-making power on a person holding a certain office, that person generally may not allow someone else to exercise the power for them. Delegation may be permitted where a decision is administrative, routine, and of limited importance.
5) Dictation Where a statute confers a decision-making power on a person holding a certain office, that person may not surrender his or her discretion to another by acting on that persons instructions. 6) Fettering a discretion Decision makers may adopt a policy as to how discretionary statutory powers should be exercised. However, they must be prepared to depart from such a policy in an individual case, and listen to someone who wishes to argue that a policy should be departed from. 7) Other errors of law Anisminic extended the meaning of the term jurisdiction, so that all material errors of law now go to jurisdiction. A Court can now usually quash a decision for any material error of law irrespective of
whether it is on the face of the record and of whether it goes to jurisdiction in the old narrow sense. Any breach of limbs (1)-(6) of the illegality grounds or of the procedural impropriety and irrationality grounds is a material error of law. However, there are also errors of law, which do not fall within these, and which can be used to quash a decision. These are covered by limb (7). A decision maker may act without the preconditions for the exercise of a statutory power being satisfied. A good example is provided by the CAs decision in: Everitt v Attorney-General. Section 57A(1) of the Police Act 1958 provides that: where any personit taken into lawful custody and is to be locked up in Police custody, a member of the police, or any searcher employed for the purpose under section 57B, may conduct a search of that person. The plaintiff was validly arrested and brought to a police station. At the station, he was stripsearched by two police officers before the police had decided whether he would be put in a cell, or released on bail. A majority of the Judges held that the search was not authorised by s 57A(1) because the plaintiff was not to be locked up at the time when he was searched. That requirement is satisfied only where the police have decided to place someone in a cell or where it is very likely that they will do so. Because the police officers had not decided to place the plaintiff in a cell, but thought that s 57A(1) allowed them to strip-search him simply because he was in a secure part of a police station, they had made an error of law as to the scope of their powers which made their actions ultra vires. An error of law falling under limb (7) also occurs where an inferior Court or an administrative tribunal misinterprets a statute that it is required to apply to the case before it. 8) Error of fact A decision is ultra vires if the decision maker made a jurisdictional error of fact. All errors of law now go to jurisdiction because Anisminic extended the meaning of the term jurisdiction in relation to errors of law. However, Anisminic did not extend the meaning of jurisdiction in relation to errors of fact, so where decision makers make errors of fact, their decisions can be quashed only if their errors of fact are jurisdictional errors in the original narrow sense of that term. A jurisdictional error of fact occurs where the statutory power exercised by a decision maker is dependent on the existence of certain facts and the decision maker wrongly thinks that those facts exist. It is often difficult to distinguish between jurisdictional errors of fact, and errors of law, like that in Everitt. It can also be difficult to distinguish between jurisdictional and non-jurisdictional errors of fact. In Edwards v Bairstow the HoL held that a decision can be quashed where a decision maker makes a finding of fact without such evidence such that no reasonable decision maker could have made it. Such err-or of fact is treated as an error of law.
In Daganayasi v Minister of Immigration, Cooke J stated that all material errors of fact can be reviewed, not just jurisdictional errors of fact. However, this extension of judicial review is controversial, and the other members of the CA left this open.
However, Courts will be reluctant to read an implied right to a hearing into a statute where such a right word would frustrate the policy of a statute, where the decision maker is Cabinet or the Governor-General, or where the decision affects a very large number of people. Even if the rules of natural justice do not give a person a right to be heard, if a decision maker expressly undertakes to give a person an opportunity to be heard before making a decision, the decision maker creates a legitimate expectation and is bound by the undertaking. A decision in breach of it can be quashed. CCSU shows that an express undertaking is not always required a history of consultation may create a legitimate expectation of future consultation. The main sub-limbs of a right to be heard are: 1. Notice Persons affected by a decision must be given notice of any charges or complaints made against them and of any hearing (if a hearing is to be held). There is no rule requiring a decision maker to hold an oral hearing. Written submissions may be received instead. 2. Disclosure of relevant information
Persons affected by a decision are entitled to be told of evidence adverse to their interests that a decision maker holds. 3. Right to comment Persons affected by a decision are entitled to put their views about the case against them to the decision maker. 4. Legal representation A tribunal has discretion as to whether to permit those who appear before it to be legally represented. In some cases it may be inappropriate not to permit legal representation. 5. Cross-examination There is a right to cross-examine witnesses before a Court, but tribunals generally have a discretion as to whether to permit cross-examination. 6. Giving of reasons There is currently no rule requiring a decision maker to give reasons for his or her decisions, even if the decision maker is a Court. However, the CA in Lewis v Wilson & Horton Ltd suggested that this might change, at least in relation to Courts.
2) Bias:
Bias has three sub limbs: 1. Actual bias A decision will be quashed if actual bias can be proved. This requires evidence that the decision maker in actual fact reached a certain result because that result furthered his or her own interests. Evidence of actual bias is rarely available. 2. Presumptive bias When a decision makers personal financial interests will be directly affected by the result they reach, the law automatically assumes that the decision maker will act in a biased manner. There is no need to establish actual bias, or to adduce evidence to show that the decision maker is likely to be improperly influenced by their financial interests. This is the rule of presumptive bias. 3. Apparent bias The third sub-limb is apparent bias. Even if neither actual bias nor presumptive bias can be established, a decision can be quashed if it can be established that; in all the circumstances of the case there was a real danger or a real likelihood, in the sense of a real possibility, of bias see Auckland Casino Ltd v Casino Control Authority.
The overall impression created by the decision maker on the reasonable observer is relevant here. Factors such as a family relationship between the decision maker and one party, and statements revealing personal hostility or a closed mind on the decision makers part are relevant.
7.6.3 Irrationality
A Court can quash a decision if it is so unreasonable that no reasonable authority could ever have come to it (Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation. Such a decision is said to be irrational, or Wednesbury unreasonable.
Irrationality involves an assessment of the merits of a decision rather than merely the process by which it was made. The Courts have thus set the threshold for interference under the ground very high. This is because, if they quashed every decision with which they disagreed on the merits, they would in effect be taking statutory decision-making powers away from the authorities on which Parliament has conferred them, and breach the principle of Parliamentary sovereignty. Another reason for the Courts reluctance to intervene is the absence of obvious and universally accepted moral standards that they can use to explain why an administrative decision is irrational. Thus, only extreme departures from what most people find acceptable will be found to be irrational.
The Courts are more willing to hold some decisions to be irrational than others. A Court is less likely to hols a decision made by a democratically elected local authority in relation to a matter such as rates (about which there exist a wide range of views) irrational than a decision affecting human rights (for example, a decision to arrest someone without good reason). Some commentators and Judges have argued that the irrationality threshold should be lowered across the board. These views have to date not been accepted explicitly by the CA. Cooke P attempted to develop substantive unfairness as a ground of review in decisions such as Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd. Decisions that were unfair were to be quashed. Adoption of this ground would probably amount to a lowering of the irrationality threshold. o The status of substantive fairness as a ground for review is, at present, somewhat uncertain.
Finally, there have been indications that a new ground of review called proportionality might be adopted at some stage in the future. Review on this ground would allow the Courts to quash decisions that were out of proportion to the objective sought to be achieved, which would go further than Wednesbury unreasonableness. The CA has said that the question of whether proportionality is available as a distinct head of review is open.
7.7 Remedies
Applicants in judicial review proceedings who establish that one of the grounds of review has been infringed can seek a declaration from a Court that a certain act is illegal. They can also seek an injunction ordering an official not to do something (a prohibitory injunction), or one ordering an official to act (a mandatory injunction). They may also rely on one of the prerogative writs (these seem similar to the aforementioned remedies?): I. Certiorari
This involves a Court reviewing a decision, and quashing it if it is ultra vires. II. Prohibition
This involves an order that an official will not act in a certain way. III. Mandamus
This involves an order that an official perform a public duty that he or she has refused to perform. Note that a remedy will not automatically be granted is one of the grounds of review is breached. All the remedies are discretionary. A declaration is the most frequently granted remedy.
Common pitfalls:
Failing to identify all the different decisions in a problem question that can be reviewed. Often there is more than one. Missing out some of the steps which need to be applied when answering a judicial review problem question. Be aware of the differences between the separate limbs and sub-limbs of illegality and procedural impropriety. In an examination answer, you should aim to cite at least one case as authority for each limb or sub-limb of illegality or procedural impropriety that you apply. You may also need to cite cases for irrationality. Then compare the facts in the problem questions with the facts of the cases to see whether the relevant ground of review is satisfied.
By the time the BORA 1990 was enacted, it had been watered down even further. In the final stages of the Bills passage, the provision that became s 4 was added to ensure that other enactments, including those passed before the BORA, would not be overridden or impliedly repealed by it. Many expected that the BORA, in its weakened and unentrenched state, would achieve little. From the early 1990s, however, the CA demonstrated in a series of decisions that it was prepared to breathe some life into the BORA, and to ensure that the rights and freedoms affirmed by it were given appropriate effect. It is now fair to say that the BORA has taken on a quasi-constitutional significance.
In Lange v Atkinson and Australian Consolidated Press NZ Ltd, the CA indicated that the development of the common law was subject to the BORA, and this position appears to have been accepted or assumed by the members of the CA in Hosking v Runting.
The main acts of the Executive comprise the enacting of secondary regulations, and the exercise of statutory (and prerogative) powers and duties by ministers, public servants, and government entitites.
Section 3(b) This section attempts to capture acts done by bodies that are not governmental in nature but that nevertheless exercise some public functions. Accordingly, s 3(b) provides that the Act applies to acts done by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. A number of cases have grappled with the complex question of what a public function is, and when such a function is conferred or imposed by or pursuant to law.
The distinction between these two limbs is important. If a body falls within s 3(a), all of its acts will be subject to the BORA. However, for bodies falling within s 3(b), only those of its acts that involve a public function, power, or duty are subject to the BORA. Thus, it does not regulate purely private conduct by these bodies.
8.4.2 Section 5
Section 5 allows the various rights and freedoms affirmed in the BORA to be subjected only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This section recognises that rights are not absolute. They can conflict with other rights or interests. Accordingly, any given right may be limited, but only where it is reasonable. It should be noted that s 5 is expressed to be subject to s 4. Section 5 permits only such limits as are prescribed by law. Accordingly, any public act that infringes the rights and freedoms affirmed by the BORA is not prescribed by law unless that act is mandated by some legal authority. If the Executive or judiciary is empowered under a statute to act in a way that infringes the rights and freedoms affirmed by the BORA, that will constitute such a limit. Common law limitations on the rights and freedoms affirmed by the BORA are also limits prescribed by law.
Where a statute confers a discretion that may be exercised only in a manner inconsistent with the rights and freedoms affirmed by the BORA, that is probably also a limit prescribed by law.
Moonen v Film and Literature Board of Review In this case the CA set out a test for determining whether a given limitation can be demonstrably justified in a free and democratic society under s 5. 1. The Court must determine what objective the legislature was trying to achieve by the provision in question. 2. The Court must assess the important and significance of that objective. 3. The way the objective is statutorily achieved must be in reasonable proportion to the objective. 4. The means used must have a rational relationship with the objective, and in achieving that objective there must be as little interference as possible with the BORA right or freedom in question. 5. The limitation must be justifiable in the light of the objective.
8.4.3 Section 6
This section requires the Courts, when interpreting statutes, to prefer meanings that are consistent with the rights and freedoms affirmed by the BORA to those meanings that are not. However, there are limits to how far legislation can be interpreted in a BORA-consistent manner. Where a statutory provision uses ambiguous language, s 6 can be applied. In some cases, the Courts have used s 6 to depart from well-settled interpretation of statutes. In Flickinger v Crown Colony of Hong Kong, Cooke P appeared willing to use s 6 to ignore the legislative history and statutory context of s 66 of the Judicature Act 1908, and to depart from the wellestablished interpretation given to s 66 by a line of authority decided decades before the enactment of the BORA. Cooke Ps decision could be said to be inconsistent with s 4, because it could amount to ignoring Parliaments will by radically altering the established meaning of existing legislation. However, the better view is perhaps that s 6 as a statutory provision is itself a manifestation of the will of Parliament, and that the Courts are only following Parliaments will as expressed in that section if they prefer BORA-consistent interpretations over those suggested by traditional methods of statutory interpretation.
With that said, s 6 cannot usually be used to give a statute a strained interpretation (i.e. Quilter v Attorney General CA would not stretch the word marriage to include same-sex couples). In recent years, the Courts have been willing to use s 6 to adopt strained interpretations where that has been necessary to avoid giving effect to legislation that involves significant breaches of fundamental rights and liberties; see R v Pora and R v Poumako.
the BORA, because regulations are enactments. However, there is an indirect route by which the Courts may strike down regulations inconsistent with the BORA. o In Drew v Attorney-General, the CA stated that the Courts may use s 6 of the BORA to read down the empowering provision under which the regulations are made. In these cases, the Court is effectively saying that a broad power in a statute to make regulations must be interpreted as conferring only a power to make regulations consistent with the BORA.
8.6 Remedies
Article 28 of the draft BoR included in the 1985 White Paper contained an express remedies provision, but this provision was deliberately omitted when the BORA was enacted. Despite the absence of an express remedies provision, the CA has created remedies to vindicate breaches of the BORA.
The above rule was eventually abolished in R v Shaheed. In its place the CA declared that the admissibility of evidence obtained in breach of the BORA should be determined by means of a balancing exercise.
The main reason for permitting such a remedy is that the BORA rights would be meaningless unless the Court had adequate remedies to uphold them when they were breached.
In the first Moonen case, the CA suggested obiter that it had the power to indicate that a staute was inconsistent with the BORA. As of yet there appears to be no case in which a Court has formally ordered that such a declaration should issue. In Zaoui v Attorney-General, Williams J described the declaration of inconsistency as being a remedy of last resort. In the UK, the Courts are expressly empowered under s 4 of the Human Rights Act 1998 (UK) to issue declarations of incompatibility where primary legislation is inconsistent with that Act. In NZ s 92J of the Human Rights Act 2001 now expressly empowers the Human Rights Review Tribunal to make a declaration that an enactment is inconsistent with the right to freedom from discrimination under s 19 of the BORA. Given this background, it seems unlikely that the Courts in NZ will renounce their assumed power to issue such declaration. In any event, the remedy would appear to be a discretionary one.
Common pitfalls:
Current case law has not yet established when s 3 of the BORA applies. This is particularly so for s 3(b). You should discuss all the relevant cases mentioned during your course when discussing s 3 in a problem question.
Make sure you are well acquainted with the part in the judgment in Moonen in which the CA sets out how ss 4-6 are applied to statutes. It is often described as a five-step test, but it may be easier to think of it as having five steps. When answering a BORA problem question involving the interaction of ss 4-6, make sure that you apply the Moonen test and that you keep all the different steps separate. Do not combine all the different steps. Before Moonen, there was much debate among academics and also in some cases about the order in which ss 4, 5 and 6 should be applied. The Moonen approach has now been widely adopted, so it is probably best for students to focus on how to apply the Moonen test and what its strengths and weaknesses are. Section 5 permits limitation of BORA rights only where these are prescribed by law. If an act infringing BORA rights or freedoms is committed without legal authority, s 5 will not justify that act.
know as the Treaty of Waitangi. Hundreds more chiefs (but by no means representing all Maori) were to sign the Treaty in the following months.
As far as the Treaty of Waitangi is concerned, the orthodox view has been that the Treaty was not a valid treaty of cession at international law, because the party ceding sovereignty (the Maori) did not have legal personality under international law. That is because tribal societies have traditionally been regarded as possessing an insufficient level of political organisation to have legal personality at international law. For this reason, Prendergast CJ famously declared the Treaty a simple nullity in Wi Parata v Bishop of Wellington. A contrary view has been put forward in more recent times. Sir Kenneth Keith has argued that the view expressed in Wi Parata is itself inconsistent with previous practice, and that it was a wellestablished practice before 1840 for western governments to enter treaties with tribal societies.
Less controversially, it now seems that the Treaty may be used as an aid in interpreting ambiguous legislation. In New Zealand Maori Council v Attorney-General [1987], Cooke P accepted that when interpreting ambiguous statutes, the Courts will be reluctant to ascribe to Parliament an intention to legislate contrary to the principles of the Treaty of Waitangi. The principle may be applicable even where the statute does not refer to the Treaty of Waitangi. Thus Chilwell J stated in Huakina Development Trust v Waikato Valley Authority that the Treaty was part of NZs social fabric, and could be used to interpret statutes that do not refer to the Treaty. In that case, Chilwell held that the Planning Tribunal had to consider Maori spiritual and cultural values when exercising its statutory powers under the Water and Soil Conservation Act 1967.
The Treaty may also be used in some cases to determine the relevant considerations to which statutory decision makers must have regard, and judicial review may lie where the Treaty has not been considered by a person exercising such a statutory power. In Attorney-General v New Zealand Maori Council [1991] (the Radio Frequencies case), the NZ Maori Council challenged the Crowns plans to put out to tender radio frequencies before the Waitangi Tribunal had published its report on a claim relating to Maori broadcasting. Cooke P, Casey and Bisson JJ (Richardson and Hardie Boys JJ dissenting) upheld the High Courts decision to grant interim relief delaying this tender, on the ground that the Court was bound to consider the tribunals recommendations before deciding whether to tender
out the radio frequencies. The majority arrived at this conclusion, despite the fact that the relevant legislation (the Radiocommunications Act 1989) did not refer to the Treaty.
In New Zealand Maori Council v Attorney-General [1987], the CA considered for the first time what these principles were. In his judgment Cooke P identified the following Treaty principles: 1. The Treaty of Waitangi is a partnership between Maori and the Crown, which required each to act reasonably and in good faith towards the other; 2. The relationship between the Treaty partners created responsibilities analogous to fiduciary duties; 3. The Crown had a duty to actively protect Maori and their taonga; 4. If a breach of the Treaty is demonstrated, it is the duty of the Crown to insist it is honoured; 5. Maori have undertaken a duty of loyalty to the Queen. Subsequent cases have refined what the principles of the Treaty of Waitangi are. In the Lands case, the Court rejected a broad duty to consult. That said, the obligations cast upon the Crown are not absolute. The Privy Council has held in New Zealand Maori Council v Attorney-General [1994] that the Crown is simply required to do what is reasonable in the circumstances. There is no doubt that the treatment accorded the Treaty of Waitangi by the CA in the Lands case has led to the increasing importance of, and a greater constitutional role for, the Treaty. Yet there are signs that at least in some quarters, patience with the Treaty is wearing thin. In 2005 NZ First introduced the principles of the Treaty of Waitangi Deletion Bill into Parliament that sought to remove all references to the Treaty in Acts of Parliament and secondary legislation. Later in 2005 Rodney Hide MP introduced a Bill designed to define in legislation the principles of the Treaty of Waitangi. Both Bills were defeated.
Generally the tribunals power where a claim is made out is limited to recommending to the Crown what remedies it should provide. Thus, the tribunals recommendations are not usually legally binding. However, the tribunal can order the return to Maori of land where that land is still held by the Crown (and, in some instances, where the Crown formerly held the land). Once a report has been issued, the relevant iwi or hapu and the Crown enter into negotiations for a full and final settlement of the claims and determine what redress the Crown should provide for the Treaty breaches. This redress often takes the form of an apology from the Crown, monetary compensation and the return of Crown land to Maori. Such settlements are effected by Act of Parliament (such as the Waikato Raupatu Claims Settlement Act 1995) to Maori, which also provide, since the settlement is full and final, that iwi or hapus ability to return to the tribunal for historic claims is removed.
Since 1985 there has been a broad political consensus that supported the Waitangi Tribunal process and recognised the importance of, and need for, addressing historical claims by Maori. In recent years there are signs that this consensus is becoming strained as the process drags on. Many political parties entering the 2005 election campaign supported time limits or bringing historic claims to the tribunal and some supported a deadline for completing claims.
Finally it is important to note that the Treaty of Waitangi Act 1975 does not incorporate the Treaty into domestic law.
R v Symonds (1847):
It was held here that the Crown could extinguish customary title, but that it could not be extinguished by Maori selling their land to settlers. It was also stated that customary title could be extinguished only by legislation, or by Maori voluntarily selling their land to the Crown. However in Wi Parata (1877): Prendergast CJ stated that the Crown could unilaterally extinguish customary title without any Court being able to question its decision to do so. In Wallis v Solicitor-General (1903): The Privy Council criticised Wi Parata, but the NZ Courts and Government objected to the Privy Councils approach.
Under the Native Land Act 1909 and the Maori Affairs Act 1953, customary title was unenforceable in an action brought by Maori against the Crown. The Te Ture Whenua Maori Act 1993 repealed the 1953 Acts bar to the enforcement of customary title. However, the 1993 Act also amended the Limitation Act 1950 so as to prevent Maori from enforcing customary titles if more than 12 years have passed since the date on which the right to bring an action arose. Maori thus cannot sue the Crown for interference with customary titles that occurred in the 19th century. Very little land is today held under Maori customary title, because the Crown encouraged Maori to have their customary titles converted into statutory property rights under the Native Land Act 1865.
In Attorney-General v Ngati Apa the CA held that the Maori Land Court retained jurisdiction to determine claims by Maori to the foreshore and seabed as Maori customary land, and that the fact that the adjacent title had been investigated and converted into a Crown grant did not extinguish any customary rights that Maori might have in relation to the foreshore. While it was doubtful whether many iwi or hapu would be in a position to show sufficient connection to foreshore over the preceding 163 years to successfully make out a claim to customary title, Parliament intervened to enact the Foreshore and Seabed Act 2004 to reverse the decision. The 2004 Act abolishes customary title to the foreshore and seabed in language of considerable comprehensiveness, and vests the land in the Crown. However, Maori rights short of customary title can still be recognised under the 2004 Act. Even if customary title to land has been extinguished, Maori customary rights can continue to exist. Customary rights are rights to use land rather than exclusive rights of ownership. They permit Maori to use land owned by others for activities such as fishing and hunting. Evidence that Maori traditionally exercised specific rights over a specific area of land is required before the Courts will recognise a customary right. In Te Weehi v Regional Fisheries Officer the High Court held that Maori had customary rights to fish in the sea, although successive governments had assumed that no such rights existed. Together with various fisheries claims before the Waitangi Tribunal, the case led to the 1992 Sealord deal. The deal resulted in the enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The Act
extinguished all commercial Maori customary fishing rights (s 9). In return Maori received money with which to buy half of Sealord Products Ltd NZs largest fishing company quota. Under s 10 non-commercial fishing rights continue to exist, but only to the extent permitted by regulations made in consultation with Maori.
Common pitfalls:
If the Treaty were incorporated into NZ law by a statute, the government would have to comply with it whatever it does. It would be part of the law just like the New Zealand Bill of Rights Act 1990 and the law of contract or torts. Sometimes it is said that the Treaty has been incorporated in relation to a particular statute. This simply means that the statute contains a Treaty clause. It does not mean that the Treaty has been generally incorporated into NZ law.