New Zealand: Judicial review cases update - key points

Last Updated: 15 July 2015
Article by Nick Crang
Most Read Contributor in New Zealand, November 2017

Judicial review cases update key points

Two recent judicial review cases provide helpful guidance on the scope of the ground of unreasonableness and on powers of search and seizure. The first is the very public and controversial challenge to the decision by the Department of Corrections to refuse Scott Watson an interview with a journalist. The second case arose from an investigation into alleged dumping of quota by a fishing company.

Court finds Department unreasonable to deny Watson interview

Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227 is one of the rare cases decided solely on the reasonableness ground. Scott Watson, convicted of the murders of Ben Smart and Olivia Hope in 1999, requested the interview in order to air his views that he is a victim of a miscarriage of justice. The Chief Executive refused the request. Mr Watson applied for judicial review.

Mr Watson argued that the decision went beyond the range of responses open to a reasonable decision-maker. He based his argument particularly on his right to freedom of expression under the New Zealand Bill of Rights Act 1990.

The judge's decision

The judge agreed, finding it significant that the Chief Executive did not intend to prohibit other modes of communication (such as written correspondence) by which Mr Watson could communicate with the reporter. The judge considered that the adverse effect on the victims, which the Chief Executive by publication of Mr Watson's views sought to avoid, could still occur.

It is unusual for a Court to uphold a judicial review solely on the ground of unreasonableness. Normally, a Court finds unreasonableness only if one of the other grounds of review, unlawfulness or unfairness is made out. In this case, however, the applicant accepted that the decision was made within the correct statutory framework and took into account all the relevant considerations. He also did not claim that it was unfair. The only issue was whether it was unreasonable.

Unreasonableness described, but not defined

The judge started with the strict Wednesdbury irrationality test, but noted that the Courts now adopt a lower standard for unreasonableness. This was articulated as "unreasonable in an administrative law sense". The judge then gave examples of unreasonableness, including cases where the decision-maker had more than one option but reached a decision unsupported by reasoned justifications, or where the decision was highly disproportionate in the way that it weighed competing factors.

The judge recognised the standard admonition against undertaking merits-based review of a decision, but also noted that the merits are relevant where they demonstrate a flaw in the decision-making process itself.

Applying these principles to Mr Watson's situation, the Court held that:

  • Mr Watson had a right to freedom of expression, but that right was not unfettered. It could be restricted, for example, in order to ensure the security and good order of a prison or the interests of victims of crime against further harm.
  • The right to express concerns about an alleged miscarriage of justice is a legitimate exception to these restrictions.
  • The Department did not propose to, and could not, prevent Mr Watson from communicating with the outside world by mail, having visitors and short telephone calls, which were all ways he could communicate his concerns.
  • The decision to prevent Mr Watson interviewing with the reporter would not necessarily achieve the purpose claimed by the Department, calling into question that justification.

The take-outs

Despite the vague terms in which the Court expressed the test for unreasonableness and that the context of each decision remains vitally important, the decision provides useful guidance to decision-makers and to legal counsel advising on proposed decisions. After ensuring that all the other requirements of administrative law are met, it is best to run a further "unreasonableness test". This test should check whether, in practice, a decision will achieve its stated aims, that the impact upon the person concerned is proportionate to the interests it is trying to protect, and that the reasons are clearly stated.

Search and seizure powers upheld

The scope of powers of search and seizure powers was confirmed by the Court in Southern Storm Fishing (2007) v Chief Executive, Ministry of Fisheries [2015] NZAR 816.

The case arose from the exercise by fishery officers of entry and search powers under the Fisheries Act 1996. The powers could be exercised where a fishery officer believes, on reasonable grounds, that an offence has been committed against the Act. No court warrant was required.

The issues in the Court of Appeal were whether the Ministry's treatment of legally privileged material was a defect of a fundamental nature and whether the scope of the search was wider than permitted under the Act.

Limited review of search and seizure powers

The Courts are reluctant to allow judicial review of search warrants or the exercise of search powers, as they usually only occur at an early stage of a criminal investigation, and there are various opportunities to challenge the warrant, the search powers, and/or their execution at later stages. However, judicial review may be permitted where there is a defect of a such a fundamental nature that it affects the jurisdiction of the relevant officer to issue the warrant or exercise the power. An example is where a power of entry fell outside the scope of the statutory powers.

Protection of legal privilege

During the search of Southern Storm's vessel, the Ministry was advised that there were legally privileged documents aboard the vessel and in written and electronic documents seized by the Ministry. Southern Storm claimed that the Ministry did not then take adequate steps to ensure privilege was protected. The Ministry responded that, at most, only a cursory review of the documents was undertaken, which was not a fundamental defect.

While the Court of Appeal found that there was no fundamental defect, it held that the brief review of the privileged documents to see whether they were privileged was breach of privilege. In order to avoid such an effect, the Court suggested that the Ministry could have had Southern Storm's representatives identify the documents, and then have reviewed by an independent barrister and, if necessary, an independent computer expert.

The reasons that there was no fundamental defect were that the Ministry did take some steps to protect privilege and that any breach of privilege was minor. The Court also saw it as significant that other avenues for overturning the search were available to address Southern Storm's concerns, including challenging the admissibility of evidence.

The scope of the search

On the question of the scope of the search, Southern Storm claimed that the Ministry went far beyond its powers, alleging that a secondary purpose of the search was to conduct an audit. This claim arose from a reference in a Ministry document, which was written after the search, to an audit of Southern Storm, and the possibility that some documents seized could be relevant to the audit.

Southern Storm's claim, however, was refuted by notes made by the investigating officer at the time and the operational orders of the Ministry for the search. These documents clearly showed the Ministry's purpose was to investigate possible offences

Helpful points from the case

The case is helpful for two points:

  • Although not overturned on the privilege issue, it provides useful guidance on protocols that could be adopted to ensure that legal privilege is protected during searches, to reduce the risk that evidence is later excluded.
  • It demonstrates the importance of clearly documenting the reasons why the legal tests for conducting a search are met, the purposes of the search, and retaining those documents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nick Crang
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