Judicial Review of Improper Purposes and Irrelevant Considerations
G. D. S. Taylor*
Control of the abuse of discretion is arguably the central and most controversial part of judicial review of administrative action. Within abuse of discretion, review of improper purposes is probably the most difficult ground to define and expound. It is not seen easily as a separate and unique concept. There is no clear approach to it as a mechanism of review. On the other hand, review for the consideration of irrelevant factors appears to offer greater certainty. There has been, therefore, a tendency to bring both grounds together in terms of the latter. As a result, the line between improper purposes and irrelevant considerations has become blurred, and often they are seen as identical. A number of questions arise from this. Are the two grounds of review different? What is their content? How are they to be manipulated? Is the apparently expansive import of Padfield v. Minister of Agriculture, Fisheries and Food a significant development? If so, is it a shift in the right direction? Problems in review for abuse of discretion stem from several sources. The problems compound one another in a context of limited legal structures and judicial analysis. Abuse of discretion is too easily regarded as a “grab-bag” from which a ground of review can always be found to suit the conclusion sought to be reached on the merits. Judicial review is a flexible tool but each ground has a limited use. “Improper purposes” and “irrelevant factors” exist as distinct phrases because each represents a separate mode of analysis which is particularly useful in a given situation.
Footnotes
* LL.M. (Well.), Ph.D. (Cantab.); Barrister and solicitor of the Supreme Court of New Zealand; Senior Lecturer in Law at Monash University, Melbourne, Australia.
Terms | Definitions |
|---|---|
 Padfield's, or Padfield v Minister of Agriculture, Fisheries & Food | Per Lord Reid: "...[I]f the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court." |
| Fiordland's, or Fiordland Venision Ltd. v Minister of Agriculture | Per Justice Richardson: "...[W]hile the decision on the facts is for the Minister alone, he must properly direct himself as to the test he is to apply, he must take all relevant considerations into account and he must exclude extraneous considerations." |
| Bate's, or Wahrliche v Bate | Per Justice McGechan: 'There is much to be said for a purposive approach. To adopt some phrases of Cooke P...in Northern Milk Ltd. v Northland Milk Vendors Association..."a very real problem has certainly not been expressly provided for and possibly not even foreseen." In the result "...the Courts must try to make the Act work while taking care not themselves to usurp the policy-making function which rightly belongs to Parliament. The Courts can in a sense fill gaps in the Act but only in order to make the Act work as Parliament would have intended."' |
| On considerations in CREEDNZ's, or CREEDNZ v Governor-General | Per Justice Cooke: "...[I]t is only when a statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground...It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people including the Court itself, would have taken into account if they had to make the decision. "...[T]he 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." |
| On public interest in CREEDNZ's, or CREEDNZ v Governor-General | Per Justice Cooke: "Under the Judicature Amendment Act 1972 and the administrative law principles developed in recent decades the Courts must be concerned from time to time, when governmental action is challenged, with issues of public interest extending beyond the interests of the two sides to the litigation." |
| Car Haulaways', or Attorney-General v Car Haulaways (NZ) Ltd. | Per Justice Haslam: 'The Legislature prescribed as the first factor a yardstick of indeterminate length, viz., "The interests of the public generally".' |
| Justice Cooke in Ashby's, or Ashby v Minister of Immigration | Justice Cooke noted "the difference between obligatory considerations (i.e. those which the Act expressly or impliedly requires the Minister to take into account) and permissible considerations (i.e. those which can properly be taken into account but do not have to be)." |
| Justice Richardson in Ashby's, or Ashby v Minister of Immigration | "The national interest does not readily lend itself to compartmentalisation of the amalgam of considerations involved, and the isolation of particular aspects of foreign and/or domestic policies as obligatory considerations which must be weighed in the balance as distinct from permissible considerations..." |
No comments:
Post a Comment