2016 Public Law Round Up

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2016 has been a remarkable year: Brexit, the US election, the loss of Leonard Cohen, the Queen’s 90th birthday and PM John Key’s abrupt resignation.  In the midst of this, one would be forgiven for overlooking some of the public law developments taking place in New Zealand. Here are some of the more notable of them:

Justiciability in judicial review

In response to over 1,750 claims of child abuse in state care, the Ministry for Social Development set up an internal process to attempt to resolve the claims out of court.  The process proved to be slow, so the Ministry developed a new “two path approach”: claimants could accept an expedited settlement offer or could opt to have their claim assessed fully.  In XY v The Attorney-General [2016] NZHC 1196, the implementation of the “two path approach” policy was challenged by 615 claimants who allege historic abuse.

Although the Ministry’s decision to compensate victims of historic abuse amounts to an exercise of prerogative power, which is, in principle, amenable to review, Gendall J concluded that this decision was not justiciable because there was no “legal framework against which the decision can be assessed”, at [35], and because permitting the court to supervise an alternative dispute resolution process such as this could “procure a potentially chilling effect in which the Crown might become reluctant to engage in settlement discussions for fear that any decisions would be subject to the Court’s supervision”, at [36].

The court has held previously, on the same “no legal framework” basis, that ex gratia compensation to persons who are wrongfully imprisoned is not justiciable: Akatere v Attorney-General [2005] NZHC 477; [2006] 3 NZLR 705.

Ex Gratia compensation for wrongful imprisonment

This year there have been two high profile cases of ex gratia compensation for wrongful imprisonment.  In New Zealand there is no legal right to compensation for wrongful conviction or imprisonment; compensation payments are made on an ex gratia or discretionary basis.  The Cabinet Guidelines provide a standard process for considering the grant of compensation and the ultimate decision rests with Ministers.

In May, retired High Court judge Rodney Hansen QC found, on the balance of probabilities, that Teina Pora was innocent of the charges for which he was convicted and for which he spent 21 years in prison.  Cabinet accepted the finding and agreed to pay over $2.5 million in compensation.

In August, retired Australian High Court judge Ian Callinan QC found that David Bain had not established his innocence on the balance of probabilities.  On that basis, David Bain was denied compensation.  Cabinet nevertheless decided to make an ex gratia payment of $925,000 to reflect the time and cost involved in his compensation claim (which lasted nearly six and a half years), to avoid further legal proceedings, and to bring to an end the whole matter.

Unreasonableness in judicial review

Wong v New Zealand Parole Board [2016] NZHC 1401 is one of the rare cases in which the Court has disqualified a decision on the ground of unreasonableness.

Mr Wong, who was serving a term of imprisonment for importing, and possession for supply of, methamphetamine, challenged the Parole Board’s refusal to grant parole.  As a pre-requisite to parole, the Parole Board required Mr Wong to complete a drug treatment unit programme, even though there was no evidence that he had ever been a drug user.

The High Court found that, in the absence of any evidence that Mr Wong had used drugs and in light of the Probation Service’s assessment that there was no need for such rehabilitation, the Board had acted unreasonably.

Innominate ground of judicial review

In AI v The Immigration and Protection Tribunal [2016] NZHC 2227, Mr AI challenged, under the “innominate ground”, the Tribunal’s refusal to grant him refugee status, citing a series of errors by the Tribunal.

Palmer J observed, at [41], that the “innominate ground” has been misunderstood.  It does not authorise the Court’s intervention on the “stand-alone basis” that something has gone wrong of a sufficiently serious nature and degree.  In other words, it is not a separate residual and instinctual “something has gone wrong” ground of review, at [2], [43], and [46].

The “innominate ground” simply means that the lawfulness of the exercise of powers by an unusually constituted body must be judged against its nature and functions, powers and duties, and the environment in which it operates, at [43].  Palmer J commented, at [43], that “this is a routine and orthodox approach to interpretation of a body’s constitution.  It is not an invitation to courts to strike down a decision of a public body based on a court’s instinct as to whether “something has gone wrong”.

In Electoral Commission v Cameron [1997] 2 NZLR 421, the “innominate ground” was relevant insofar as the CA had to consider the overlap of powers between the Electoral Commission and the Advertising Standards Complaints Board.  The Court held, at p 430, “if on a proper construction of the powers of the board they do not extend to interfering with the exercise by the commission of any of its statutory functions and powers, a decision by the board having that effect will be beyond its powers.”

By contrast, in this case “the law governing the decision-making by the Tribunal is clearly set out in statute.  There is no need to delve further into its legal parameters by reference to its functions, powers or duties”, at [48].  Accordingly, the innominate ground was not applicable.

A very Merry Christmas and best wishes for the New Year from all of us here at Clifton Chambers


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