Judicial Review Illegality Notes

JR - Illegality Illegality is a 'head' of review, requires considering Parliament's intended purpose. Improper purpose - Padfield Look to Act to ascertain purpose - was decision made for this purpose? Relevancy of considerations - CREEDNZ, Evans Have all mandatory considerations been taken into account? Have any irrelevant considerations been taken into account? Error of law - Evans (CREEDNZ) Did the decision maker make the decision according to the law? Mistake of fact - Daganayasi Did the decision maker correctly understand the facts material to the decision? Padfield v Minister of Agriculture, Fisheries and Food A milk marketing scheme was set up by the Agricultural Marketing Act 1958, where producers were paid fixed prices based on their region The South-Eastern Region producers contended the differential of pay between them and another region should be altered, but doing this would affect all regions. They requested the Minister to appoint a committee of investigation under the Act, when he refused they applied to the court for review of this decision. Minister's power to appoint committees cam under s 19: S 19(3) - A committee of investigation shall [be set up] if the Minister in any case directs S 19(6) - If the committee reports that any provision of the scheme is contrary to the interests of consumers or any persons affected by the scheme and is not in the public interest, the Minister may in relation to the scheme: (a) amend (b) Revoke (c) Rectify by an order Lord Reid: Minister claimed a 'power' under the scheme (giving no rights to other parties), while Padfield claimed it was a duty (enforceable by other parties). The scheme says 'if the Minister directs' it is so be set up - prima facie a power. Court found that if the committee and the Minister agree that a provision of the scheme is not in the public interest, the Minister has a duty to act. The discretion must be read in the context of the purpose of the Act - not unfettered. Improper purpose: Ground of review The Minister did not have unfettered discretion. Rather the Act itself is a fetter - the discretion must be used to promote the objects of the Act. If Minister uses discretion counter to purpose of Act, the law would be defective if aggrieved parties couldn't look to the Court for protection. If the Act gives no guide as to the nature or extent of a discretion, they are to be inferred from a construction of the Act as a whole. The Minister's reasons for not referring this to a committee: 1. May raise wide issues. (a) But the scheme gives such powers that it is clear that P intended the Minister to have power to deal with wide issues. 2. May be politically embarrassing (a) This is a bad reason, not part of scheme of Act. 3. The scheme should be self-regulating (a) But Parliament gave the Minister these powers intending him to use them when necessary - scheme not intended to be entirely self-regulating. 4. If the Minister had given no reasons, then would be in better position, couldn't be called into question. (a) If a decision maker gives no reasons for a decision, then the Court will infer them from the circumstances and judge their va lidity in law. Lord Morris, dissenting: Found discretion was exercised properly. If the discretion had been exercised properly, the Court would have no jurisdiction to act as a Court of Appeal on that decision. Court only able to make an order if it were shown a. The Minister failed/refused to apply his mind to the question of referring the complaint ? Finds that the Minister did consider referral. b. He misinterpreted the law/held an erroneous view of the law ? Only misinterpreted law if his considerations were inadmissible. c. Based his decision on a wholly extraneous consideration, or failed to have regard to matters which he should have taken into account. ? Found Minister decided as policy that it was undesirable/inappropriate to overrule the board in regard to price fixtures. ? This was not an inadmissible ground. Daganayasi v Minister of Immigration [1980] NZCA The Minister had rejected D's appeal under s 20A of the Immigration Act 1964 against deportation on the grounds of "exceptional circumstances of a humanitarian nature which would render deportation unduly harsh or unjust." D's son had a rare disease requiring medical care, but deportation was to Fiji. The Minister had appointed a medical referee who had produced a perhaps biased report against D, without giving telling her. Also, the Minister claimed to have obtained the best and most medical advice available, but had not fully consulted the boy's specialist clinic. Mistake of fact Not clear as to whether this was a ground for relief in law. Observations in House of Lords showed that the duty to take into account relevant considerations extends to considerations which should have been within knowledge of Minister. Test from Tameside, Lord Wilberforce endorsing Scarman LJ: # "If a judgment requires the existence of some facts, then although the evaluation of the facts is for the decision maker alon e, the Court must inquire whether ? Those facts exist ? Have they been taken into account Whether the judgment is made upon a proper self-direction as to those facts Public Page 27

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