New Zealand Law Review - Published Issues - 2016 - Issue 1

Issue 1
 

Table of Contents


  • By Hanna Wilberg

    This special issue comprises articles that were first presented at the Legal Research Foundation “New Zealand Administrative Law” Conference and Workshop in Auckland in January 2015. Administrative law specialists from most of New Zealand’s universities kindly agreed to contribute, as did two former New Zealand academics currently working in Australia. The articles address a broad range of issues in judicial review and administrative law. They either put New Zealand developments centre stage or show how some more general analysis applies in the New Zealand context.

  • Convergence in Public and Private Law Doctrines — the Case of Public Contracts
    By Janet McLean

    Is it possible for public and private law doctrines to converge in response to contemporary modes of mixed public–private governance? Such an approach has certain attractions. It sidesteps difficult and often circular a priori assessments of whether a transaction or body is sufficiently "public" or "commercial", and it sometimes provides a space in which the countervailing threats of public corruption and private coercion can be weighed. Three examples of modern convergence are identified in relation to public contracts: the law of public tendering; controls on contractual discretion; and the concept of non-delegable duties in tort law which impacts on contracting out.

  • The Changing Landscape of Non-Justiciability
    By Rayner Thwaites

    What is judged to be non-justiciable and how that is determined has changed markedly in the last several decades and the concept remains in flux. There has been recent British and Australian case law on the concept in the highest appellate courts, providing an opportune moment to survey the contemporary landscape of nonjusticiability. The contemporary non-justiciability cases concentrate in the area of foreign relations law, in cases arising from the "war on terror", though they range over broader subject matter. I argue that contemporary Australian and British approaches to nonjusticiability, though developed in very different legal contexts, are presently converging; and I situate New Zealand case law in relation to these developments. I argue that non-justiciability is a concept of continuing utility in New Zealand and elsewhere in the common law world. Accounts discerning, and arguing for, the redundancy of non-justiciability mistake its transformation for its demise.

  • Modulating the Depth of Scrutiny in Judicial Review: Scope, Grounds, Intensity, Context
    By Dean R. Knight

    This article focuses on the manner by which the courts modulate the depth of scrutiny in judicial review. Building on previous work that demonstrates that (overt and covert) variability is ubiquitous in judicial review, this article frames and explains the key methods employed to modulate the depth of scrutiny in New Zealand. The key methods are located within the broader Anglo-Commonwealth experience and are explicated in terms of four schemata drawn from the changing language and structure of successive editions of de Smith's distinguished textbook: scope of review, grounds of review, intensity of review and contextual review. A set of criteria for evaluating the virtues of the different schemata is then proposed, based on Fuller's principles of legality.

  • The Ireland Principle on Unauthorised but not Improper Purposes: An Exploration and Defence
    By Hanna Wilberg

    One of the leading New Zealand authorities on the illegality ground of judicial review is Attorney-General v Ireland. The Court of Appeal in that case recognised a category of unauthorised but not improper purposes that do not invalidate a decision. This article addresses two questions arising from Ireland. First, it seeks to clarify the extent of toleration of unauthorised purposes following Ireland. Secondly, it defends the decision against the charge that it is fundamentally contrary to the rule of law.

  • False Dichotomies in Administrative Law: From There to Here
    By Philip A Joseph

    This article revisits our administrative law journey since the Second World War. It is a journey worth recounting because it reveals how starkly our administrative law has changed over a short, finite period of time. The transformative nature of this change beguiled some into believing that judicial review was a strictly post-war phenomenon. This was palpably not so; judicial review has a rich and absorbing history reaching back to the early jurisdiction of the Court of King’s Bench.

  • The Functional Convergence of Appeal and Judicial Review
    By MB Rodriguez Ferrere

    "Judicial review is not the same as appeal" is one of the more common epithets found in administrative law in New Zealand. As neat as it is, however, it is not truly reflective of reality. Often, when considering the determinations of administrative decisionmakers, a court will find itself engaging in the same task in judicial review proceedings as it does in certain types of appeal. Despite that functional similarity, however, courts have insisted that the distinction between the procedures is a valid one. In this article, I argue that the epithet above is a significant overstatement, and that in administrative law, there is no functional distinction between review and two types of appeal: those on questions of law and against exercises of discretion. In making my argument, I will first outline the different procedures, before showing that the rationales for differentiating them from one another are no longer sufficient and that the distinction is no longer desirable.

  • The First Victim — Administrative Law and Natural Disasters
    By W John Hopkins

    This article examines the place of administrative law principles and processes (broadly understood) in a time of crisis. There appears a generally held assumption that such principles are a luxury which can be dispensed with when disaster strikes. The dominant political narratives that represent these views revolve around the idea that disaster recovery and the response that precedes it require urgent action. In these cases the advantages in doing something quickly is perceived to outweigh the need to do something correctly. In such an environment, the principles of good administrative practice and the processes that exist to deliver it are seen as unnecessary roadblocks in the way of progress and recovery.

    This article challenges this traditional approach to the use of public power in disaster management. Using the specific example of the Canterbury earthquakes and the New Zealand government's legislative response, it argues that the concept of emergency and disaster are often conflated. As a result of this, the differences between the concepts are not recognised. This failure to understand the differences between disaster management phases is reflected in a flawed legislative approach. Far from being a simple question of delivering uncontentious goals, disaster recovery involves a set of highly contested political questions. The legislative framework should reflect this through recognition of good administrative process and principles. Without this, disaster recovery risks becoming an arbitrary and potentially inefficient process.

  • The Development of the Damages Remedy under the New Zealand Bill of Rights Act 1990: From Torts to Administrative Law
    By Jason NE Varuhas

    This article charts the development of the damages remedy under the New Zealand Bill of Rights Act 1990 (NZBORA). It analyses the major twists and turns in the NZBORA damages jurisprudence and identifies different approaches to human rights damages which have emerged. It places each approach within a theoretical framework, and undertakes normative evaluation of each, with a view to determining which approach should be preferred.

New Zealand Law Review Published Issues