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«JUDICIAL REVIEW IN NEW ZEALAND: A PREFERENCE FOR DEFERENCE? DANIEL J. PANNETT A dissertation submitted in partial fulfilment of the degree of ...»

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A dissertation submitted in partial fulfilment of the degree of Bachelor of

Laws (with Honours) at the University of Otago

October 2008



To Professor Stuart Anderson, for your invaluable guidance, constructive criticism, enthusiasm,

encouragement, and reassurance as supervisor of this dissertation;

to Matt Smith, for drawing my attention to important commentary;

to Godfrey Potahu of the MLC, for locating material when all seemed lost;

to Michael Dobson, for proofreading skills par excellence;

to Laura Fraser, for your constructive advice and friendship;

to Kesia Denhardt, for your love and support throughout.



Daniel J. Pannett



Chapter I: The Origins and Structure of Judicial Deference


The “Spirit” of Deference

New Zealand

Deference as “Respect” and “Due Deference”

Factors Giving Rise to Deference


Statutory Indications

Privative Clauses

Rights of Appeal

Deference to What?

Deference to Whom?


New Zealand

Chapter II: Deference in New Zealand

Fulcher v Parole Board

Gordon v Auckland City Council

Leary v New Zealand Law Practitioners Disciplinary Tribunal

R v Hansen

Objections to Deference

Parliament and “Dialogue”

Agency Capture

Institutional Structure; Abandoning Dicey

iii Chapter III: Deference and Specific Institutions

The Maori Land Court

Jurisdiction and Appeals


Attorney‐General v Maori Land Court

“Weak” Deference?

Film and Literature Board of Review

Society for the Promotion of Community Standards v FLBR


–  –  –

The scope of administrative law has developed rapidly over the past twenty years.1 Developments in New Zealand, including the return of the doctrine of jurisdictional fact2 and the discussion of the novel concept of proportionality3 have greatly altered the methodology in which administrative law operates. This is particularly clear in relation to varying standards of review that may be applied by a court. In Canada, this development has manifested itself in the idea of deference; understood generally as the lowering of a traditional “correctness” standard on an alleged error of law made by a specialist tribunal to one of “patent unreasonableness”. This approach has culminated in explicit curial recognition of the constitutional importance of these tribunals through a lowered level of intervention in an area of law where the courts had previously taken an interventionist approach.

No New Zealand court has yet openly applied a deferential approach on review. Courts instead seemingly adhere to their orthodox role as strict interpreters of statutes and the administrative bodies established by them. However, there have been a number of statutory tribunals established in New Zealand with a significant amount of specialised expertise in their own legal field, with the Maori Land Court the clear paradigm example. This may be indicative of an emerging constitutional order where administrative tribunals exercise their own discreet legal interpretations. Accordingly, this dissertation examines the possibility of “deference” forming a new part of the administrative law landscape in New Zealand, both on a broad principle level, and in relation to specific institutions.

Chapter I will outline the origins of the doctrine of deference in Canada, describing and analysing its birth and growth into a critical part of contemporary Canadian administrative law. In particular, focus will be placed on the challenges faced in interpreting the “spirit” of a deferential approach since the birth of the doctrine. The chapter will then discuss the existing academic treatment of deference in New Zealand, leading to the idea being more succinctly defined. Finally, “deference” will be construed in relation to two specific questions – the bodies to which a reviewing court might defer, and to what types of erroneous decision‐making deference should apply.

Chapter II will examine the appropriateness of deference in a New Zealand context. Existing cases that have, both expressly and impliedly, dealt with the concept will be discussed and analysed to assess whether there are any existing “roots” for the concept to grow. Next, some of the primary 1 rd Philip A Joseph (ed) Constitutional and Administrative Law in New Zealand (3 ed, Brookers, Wellington, 2007), p820.

Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597.

Wolf v Minister of Immigration [2004] NZAR 414.

objections to deference will be examined in relation to the constitutional and legal framework of New Zealand: whether lessening levels of judicial intervention is really a matter for Parliament;

whether New Zealand’s smaller pool of legally‐trained individuals would lead to problematic “agency capture”; and whether our institutional framework is actually as well‐suited to deference as it would first seem.

Finally, Chapter III will examine deference in respect of specific administrative tribunals, so as to tie the previous discussion to some tangible examples. The specialist jurisdiction and expertise of the Maori Land Court will be the primary example. Its governing statute, Te Ture Whenua Maori Act 1993, will be explored in detail, and a significant case where deference to the Maori Land Court may have resulted in a different result will be analysed. The possibility of deference applying to the Film and Literature Review Board and the problems therein will also be assessed, with a general conclusion to follow.

–  –  –

Canada The roots of a principled concept of “deference” stem from the Canadian jurisdiction. This “profoundly deferential attitude towards administrative interpretations of statutes”4 emerged from the keystone case of CUPE v New Brunswick Liquor Corporation.5 In that case, the court was faced with a complaint against the Public Service Labour Relations Board – a statutory tribunal created to rule on questions of Canadian labour law. The question for the Supreme Court was whether the Board could interpret the meaning of the term “other employee” in a particular way. Until this point in Canada, the standard of review would have been correctness. However, CUPE marked a departure from this, ceding a “wider range of administrative lawmaking to the board”6. Dickson J stated the

standard to be applied:

"Was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?” Accordingly, the decision – that is, the interpretation8 of the legal phrase “other employee” – must be “’more’ than wrong”9 to justify a reviewing court intervening and replacing the interpretation of the decision‐maker. This approach was justified for several reasons. Firstly, the position of this labour board as a “specialised tribunal which administers a comprehensive statute [meant it] has developed [...] accumulated experience in the area”10. Moreover, the existence of a privative clause Michael Taggart “Lord Cooke and the Scope of Review Doctrine in Administrative Law” in Paul Rishworth (ed) The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon, (Butterworths, Wellington, 1997, pp189‐219), p204.

[1979] 2 SCR 227 (Hereafter referred to as CUPE).

Taggart, above n4, p206.

CUPE, above n5, p237.

Questions of interpretation, application, and mixed fact and law are addressed later in this Chapter under the heading “Deference to What”. At this stage, however, it is clearer to outline the origins of deference in a purely descriptive, rather than evaluative or selective sense.

The Attorney‐General of Canada v Public Service Alliance of Canada [1993] 1 S.C.R 941, p955.

CUPE, above n5, p235‐6.

in the statute provided a “compelling”11 rationale for non‐intervention. Judicial restraint in the form of curial deference followed accordingly in this case.

Therefore, CUPE had created two “threshold” standards: correctness and patent unreasonableness, and was initially regarded as “encapsulating an entire approach to judicial review”12. Stemming initially from the context of labour relations tribunals13 but spreading also to other areas of “inferior” tribunal decision‐making14, courts undertook what they described as a “pragmatic and functional analysis”,15 which included factors such as the wording of the statute, the nature of the problem, and the expertise of the decision‐maker.16 Following this analysis, the decision for the Court was a binary one: simply to defer (patent unreasonableness) or not to defer (correctness).17 The “Spirit” of Deference Following this watermark, however, the “spirit” of CUPE underwent some challenges in interpretation and application. In CAIMAW, Loc. 14 v Pacaar Canada Ltd.,18 Sopinka J for the majority

stated in relation to the “patent unreasonableness” test that:

“When a court says that a decision under review is [...] “patently unreasonable” it is making a statement about the logical relationship between the grounds of the decision and premises thought by the court to be true. Without the reference point of an opinion [...] on the merits, such a relative CUPE, above n5, p235‐6.

Christopher Taylor “Curial Deference and Judicial Review” Advocate’s Quarterly ([1991] Vol 13) pp78‐89, p78.

13 th See, for example, CAIMAW, Loc. 14 v Pacaar Canada Ltd (1989) 62 DLR (4 ) 437.

Such as the Canadian Tribunal established to control and regulate imported goods into that country, as well as many other administrative tribunals. See, for example, National Corn Growers v Canada (Canadian Import th Tribunal) (1990) 74 DLR (4 ) 458.

See, for example, Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R 982, p991.

Lorne Sossin and Colleen M. Food “The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in

Administrative Law”, University of Toronto Law Journal (Special Issue: Education, Administration and Justice:

Essays in Honour of Frank Iacobucci, 2007, Vol 57, pp581‐606), p586.

Ibid., 587.

18 th (1989) 62 D.L.R (4 ) 437.

statement cannot be made [...] in my view, curial deference does not enter into the picture until the court finds itself in disagreement with the tribunal”.

This approach arguably allows a court to establish a set of “of basic principles relevant to the merits of the case”20 before deciding whether to defer. Commentators have pointed out difficulties with this, as it “permits the court to set very narrow bounds as to the range of final conclusions that would be upheld by a court [...] whilst ostensibly advocating curial deference”.21 Moreover, the creation of an “intermediate” standard of reasonableness simpliciter, between patent unreasonableness and correctness, by Iacobucci J in Canada (Director of Investigation and Research) v Southam Inc22 muddied the water further. Gone was the initial CUPE approach of a choice between deference and non‐deference, seemingly replaced by a contextual spectrum that could allow a court to justify any level of intervention. Dissatisfaction with these elements eventually culminated in a

judgment by Lebel J in Toronto (City of) v. CUPE, Local 79.23 Lebel J’s primary concern was:

In attempting to follow the court's distinctions between "patently unreasonable", "reasonable" and "correct", one feels at times as though one is watching a juggler juggle three transparent objects.

Depending on the way the light falls, sometimes one thinks one can see the objects. Other times one cannot and, indeed, wonders whether there are really three distinct objects there at all.” Accordingly, very recently, the Supreme Court in Dunsmuir v New Brunswick25 has moved back towards a binary approach in determining the application of deference. The distinction between “patent unreasonableness” and “reasonableness simpliciter” was abandoned, and the approach returned to a binary decision between “correctness” and “reasonableness”.26 The relationship between patent unreasonableness and reasonableness simpliciter was stated as “unproductive and CAIMAW, Loc. 14 v Pacaar Canada Ltd, above n18, p479.

Taylor, above n12, p81.


[1997] 1 S.C.R 748.

[2003] 3 S.C.R 77.

Ibid., para [63], citing Miller v. Newfoundland (Workers’ Compensation Commission) (1997), 154 Nfld. & P.E.I.R. 52 (Nfld. S.C.T.D.), para. 27.

2008 SCC 9.

In doing this, Binnie J at para [139] recognises this “will shift the courtroom debate from choosing between two standards of reasonableness that each represented a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference”.

distracting”.27 Accordingly, the Court recognised that questions of degrees of deference – that is, how “reasonable” a decision must be depending on factors such as a privative clause or the expertise of the tribunal28 ‐ should become an issue only after the decision of whether to defer or not is made. The approach in Dunsmuir, representing a return to “base” CUPE principles, demands that the first question be a straight “yes/no” one: questions of degree arise only when that first question is answered in the affirmative.

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