At The Bar
December 2008
Judicial Review Proposals Spark Concern Deep concerns about the constitutional implications of changes proposed by the Law Commission to Judicial review have been expressed by submitters ranging from Chief Justice Dame Sian Elias, to practitioners and academics. The commission in August released an issues paper, Review of Prerogative Writs. The document proposed that a new Judicature Amendment Act be passed to replace the 1972 legislation. This would provide for Photograph taken at the American Bar Association Distinguished Guest Program 2008 and provided courtesy of the orders in the nature of mandamus, American Bar Association. certiorari and prohibition, while the Flying the flag for the New Zealand Bar Association is Colin Carruthers QC [pictured in the second row, far right, second from the end], at the American Bar Association annual meeting held in New York City in August. general shape of Judicial review would be authorised by Parliament answer to the question as to the source of the authority of in the light of current conditions and social requirements. the court. However, the question impacted on fundamental However, the proposals have drawn criticism from elements of the New Zealand constitution which had not submitters. Justice Elias in her submission said that the been determined, and answers should not be assumed in recommendations affected the existing legal order of New what purported to be a procedural reform. Zealand and ought not to be progressed other than as Justice Elias said that excluding the inherent jurisdiction of part of a squarely confronted constitutional reform. She the court to grant Judicial review would be a substantive, said that practical and technical reasons for advancing and not a procedural, change and much wider public the proposals, such as complexity and obscurity, were engagement would be required before the commission’s overstated. views could properly be acted on. “They do not justify the radical She concluded that the commission’s change entailed in excluding the process was not an appropriate inherent jurisdiction of the court way to reform the New Zealand to control abuse of power. Many constitution. of the propositions on which the Christchurch Judge, Justice John proposals are based, such as the Fogarty, in a personal submission, division between public and private said that for Parliament by a simple law, are contestable. The exclusive majority to assume authority to statutory jurisdiction proposed is delimit Judicial review would be to likely to inhibit the responsiveness qualify significantly the independent of administrative law in meeting the Judicial branch of government. needs of New Zealanders.” Justice Fogarty said that he disagreed “strongly” with Justice Elias said that the commission’s contention that the proposals. The United Kingdom and New Zealand the general shape and reach of Judicial review must be Parliaments had never sought to replace the relevant authorised by Parliament in the light of current conditions common law jurisdiction with a statutory jurisdiction under and social requirements, in part because of costs and the control of Parliament. To do so would effect a significant delays in implementing significant government decisions, constitutional change in arrangements which had been in was contentious. There was not necessarily any correct place since the Act of Settlement.
2009 Annual Conference 11 - 13 September Wellington
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