Judicial Review

Judicial review is the body of law relating to the review of the justiciable acts, decisions, determinations, orders and omissions of individuals and bodies performing public functions. Judicial review of the decision-making activities of these bodies is generally perceived as an important constitutional procedure to prevent those exercising public functions from abusing their powers.

In Aotearoa, once legislation has been assented to and becomes law, there is no limit to its legal efficacy, and the courts do not allow judicial review to infringe this doctrine. In this regard the position in Aotearoa is now more or less unique. In the USA, judicial review of the constitutionality of legislation has been permitted since the early 1800's. The courts of both Canada and Australia have similar powers. Even in the UK, the home of parliamentary supremacy, judicial review of legislation is now permissible as part of the United Kingdom's obligations under European Community Law and, in particular, the European Convention on Human Rights.

The Courts claim a general power to rectify injustices, based on "overall evaluation" and the inherent discretion of the law. The innominate ground of review is acceptance that judicial review "is not circumscribed by existing categories", but rather by the injustice of the case. Although the Court must identify its ground for intervening, the judicial intuition always is: "whether something had gone wrong of a nature and degree which required the intervention of the Court, and, if so, what form that intervention should take". This simplified test links the judicial methodology with the historical role of the Courts to remedy injustices and to ensure public administration according to law.

There are three principal grounds of challenge to public decision-making:

  1. procedural impropriety;
  2. illegality; and
  3. irrationality.

If you believe that you have suffered an injustice as a result of the exercise of a public power (whether in immigration, employment, education etc), contact Rennie Cox to explore your potential remedies.