This is a single section from Chapter 28. Read the full chapter here.

Does the legislation seek to exclude or limit the right to apply for judicial review?

Legislation should not restrict the right to apply for judicial review.

New Zealand courts do not have jurisdiction to invalidate legislation passed by Parliament, but do have the right to judicially review the legality of decisions made by Ministers, officials, or others under that legislation.  This is a fundamental part of New Zealand’s constitutional settings. The right to apply to the High Court for judicial review of a decision exists independently of any statutory appeal rights and is affirmed by s 27(2) NZBORA.

In judicial review proceedings, the court will determine whether the decision was made in accordance with the law and within the range of reasonable decisions that could have been made. The court may set an unlawful or unreasonable decision aside, to be re-made by the decision maker. In rare circumstances, the court may substitute its own decision.

The requirement that decision-makers act within the law is fundamental to the rule of law. Ouster clauses (sometimes called privative clauses) remove or limit (either substantively or through procedural limits) the ability of the courts to judicially review the decision. As a result, they interfere with the courts’ constitutional role as interpreters of the law and so undermine the rule of law. The inclusion of ouster clauses also needs to be very carefully considered as they raise issues as to whether legislation is consistent with s 27(2) NZBORA.

Because ouster clauses undermine fundamental principles of constitutional law, the courts give them a narrow interpretation to preserve their ability to review decisions in at least some circumstances. As a result, ouster clauses may not be fully effective even if included.

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