Standards of Review: Canadian-Style Deference and Lessons For The Antipodes

Tomorrow I depart for a 6 week trip abroad, courtesy of the Canadian Government (in particular, their Canadian Studies programme), to think about, chew the fat about, and write about some Canadian administrative law. Below is the project summary. More about the substance and progress when I'm over there and I've got my head around it...

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"Standards of Review: Canadian-Style Deference and Lessons For The Antipodes"

Judicial review is the main formal mechanism within Anglo-Commonwealth constitutional systems for providing "checks and balances" on administrative decision-making. Central to the operation and effectiveness of this accountability mechanism is notion of the "intensity" adopted – or in inverse Canadian parlance, "deference" applied – by the courts when reviewing or scrutinising the decisions of public bodies and officials. The question of the appropriate degree of intensity or deference is coloured by two equally important competing values. On the one hand, the courts strive to be vigilant, in order to protect the rights and interest of citizens and to uphold the Rule of Law. On the other hand, the courts also recognise the need to exercise restraint, in order to respect the constitutional allocation of power by the legislature to public bodies and officials, and to acknowledge the limits of the judicial function and procedure when reviewing the decisions and judgements made by those public bodies and officials.1 Judicial methodology or the common law doctrines applied by the courts therefore represent a mediated equilibrium or compromise between those two competing tensions.

English, New Zealand and Australian courts have traditionally given effect to this vigilance–restraint equilibrium by applying developed grounds of review which contain prescribed degrees of intensity or deference. For example, when reviewing a legality of administration under the "lawfulness" or "illegality" ground of review, the courts apply absolute vigilance and are entitled to intervene if any legal error is found.2 In contrast, when reviewing the "merits" of a decision (that is, the overall robustness of the decision, any factual findings made, the weight given to different factors, or the reasoning on which it is based), the courts are only entitled to intervene in cases where the decision is manifestly unreasonable.

In contrast, Canadian courts have for many years applied a framework where the vigilance–restraint equilibrium is settled on a case-by-case basis based on the circumstances of particular cases. Initially adopted under the "pragmatic and functional" framework3 – more recently, re-branded a "standards of review" analysis4 – the Canadian courts calibrate the degree of deference or intensity of review under a universal system based on different standards (not grounds) of review.5

The difference between the competing approaches has begun to narrow as the English, New Zealand and Australian courts have become to question the propriety of rigid grounds of review with defined degrees of deference. For example, in England and New Zealand, the courts now accept that, when reviewing the merits of a decision, the degree of unreasonableness required to justify judicial intervention may vary in the circumstances (although the precise methodology to be adopted has yet to be definitely settled).6

This year, however, the Canadian courts modified their standards of review approach,7 in the light of many years of experience and following some criticism of the regime.8 Although the basic framework was retained, the Supreme Court of Canada directed a new approach to the assessment of the reasonableness of the administrative decision under review (that is, collapsing the distinction between patent unreasonableness and reasonableness simpliciter and replacing it with a unified, but context-specific, reasonableness standard).

The purpose of the proposed project is to analyse and critique the unique features of the Canadian regime and recent developments, particularly the concerns that led to the recent change to the regime and the practical experience under the modified regime. It is proposed to undertake this analysis from a comparative perspective, that is, relating the Canadian practice and experience to the more fledgling New Zealand approach to intensity and standards of review. This comparative study will contribute to a broader project assessing whether New Zealand should adopt a formal standards of review framework and, if so, what type of standards should be adopted.9

1 See for example Michael Fordham "Surveying the Grounds: Key Themes in Judicial Intervention" in Peter Leyland and Terry Woods (eds) Administrative Law Facing the Future: Old Constraints and New Horizons (Blackstone Press, London, 1997).
2 Dean R Knight "Simple, Fair, Discretionary Administrative Law" (2007) VUWLR 91 and Michael Taggart "Administrative Law" [2006] NZ Law Rev 75.
3 CUPE, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227 and Canada (Director of Investigation & Research) v Southam Inc [1997] 1 SCR 748. 4 Dunsmuir v New Brunswick (2008) SCC 9.
5 See for example David Phillips Jones and Anne S de Villars Principles of Administrative Law (4 ed, Thomson Carswell, Scarborough, 2004); David J Mullan "Establishing the Standard of Review: The Struggle for Complexity?" (2004) 17 Canadian Journal of Administrative Law and Practice 59; Philip Bryden "Understanding the Standard of Review in Administrative Law" (2005) 54 Uni New Brun LJ 75; Audrey Macklin "Standard of Review: The Pragmatic and Functional Test" in Colleen M Flood and Lorne Sossin (eds) Administrative Law in Context (Edmond Montgomery Publications, Toronto, 2008) 197.
6 See for example Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117 and Michael Taggart "Proportionality, Deference, Wednesbury" in Judicial Review (New Zealand Law Society, Wellington, 2007) (New Zealand); Andrew Le Sueur, "The Rise and Ruin of Unreasonableness?" [2005] 10 JR 32 (United Kingdom); Lisa Busch "Standards of Review of Administrative Decision-Making in Australian Public Law" [2006] JR 363 (Australia); 7 Dunsmuir v New Brunswick (2008) SCC 9.
8 Guy Régimbald "Correctness, Reasonableness, and Proportionality: A New Standard of Judicial Review" (2005) 31 Man LJ 239; and Toronto (City) v CUPE, Local 79 [2003] SCC 63.
9 For my initial work on this broader project, see Dean R Knight, "Dunne v Canwest TVWorks Ltd: Enhancing or Undermining the Democratic and Constitutional Balance?" (2005) 21 NZULR 711, Dean R Knight "A Murky Methodology: Standards of Review In Administrative Law" [2008] 6 NZJPIL 117, and Dean R Knight, "Standards of Review in Administrative Law" (Seminar for Crown Law Office, Wellington, September 2008).

Loss of a great scholar and friend

Ka hinga te totara o te wao nui a tane.

With the passing of Mike Taggart due to illness yesterday, the NZ legal academy has lost one of its finest and most generous legal scholars.

Below is a copy of a painting (by Richard Taggart) presented to Mike to mark his retirement from Auckland Law School last year. It epitomises Mike: a truly fine common lawyer, with incredible enthuthiasm and passion for what he did.

We will all very much miss him.

See also: > 15 Lambton Quay: "The death of a friend - Professor Mike Taggart" > Hart Publishing: "A Simple Common Lawyer"

New Zealand Order of Merit (Modernisation of Titular Titles) Bill

> New Zealand Order of Merit (Modernisation of Titular Titles) Bill Most folk reading this will know that, for quite some time, I have been lobbying publicly and on this blog for the reinstatement of titulars titles as part of the NZ Order of Merit. With this month's announcement of the re-designated Knights and Dames, part of that campaign has finally come to fruition. I understand there is soon to be a redesignation ceremony, from which point honorands will be able to use the appellations of Sir and Dame. But... my campaign was not merely about reinstating the titular titles of British origin. I also proposed that we allow equivalent Māori / Te Reo appellations, "Tā" and "Kahurangi" (or such other appellations as Māoridom support). It would, I think, have been a nice compromise in the polemic debate: a nod to our British heritage and a nod to our indigenous heritage. Anyway, I've now drafted a Member's Bill which would effect such a change. Also included in the proposed Bill are changes to a couple of the discriminatory elements of the Knightshoods and Damehoods. Honorands of both genders and their spouses should be treated the same - this Bill would ensure they are. This Bill is free to a good home - I'm happy for any MPs to pick it up and seek to have it progressed in the House. - - - - - - -

New Zealand Order of Merit (Modernisation of Titular Titles) Bill

Member's Bill

Explanatory Note

In March 2009, the New Zealand Order of Merit was changed to restore titular titles. That is, the recipients of the highest honours were redesignated Knights and Dames and are entitled to use the appellations of "Sir" and "Dame" before their names.

This Bill further amends the honours system to allow Knights and Dames to use a Te Reo Māori form of appellation, "Tā" and "Kahurangi", if they wish. This reinforces the indigenous nature of the Order and acknowledges that the honours system may evolve to reflect New Zealand's present-day culture. Further, the adoption of an explicitly indigenous appellation may mean some people may be more willing to accept the highest honours.

In addition, the Bill removes the following discriminatory elements of the titular titles and highest honours: - First, only men are entitled to be conferred with the Accolade of Knighthood (that is, the "dubbing" of shoulders with the ceremonial sword). - Secondly, only wives of Knights are entitled to the courtesy title "Lady". Husbands of Dames do not receive a courtesy title, nor do (opposite-sex or same-sex) civil union or de facto partners.

These elements are inconsistent with the prohibitions on gender, martial status and sexual orientation discrimination in the New Zealand Bill of Rights Act 1990. This Bill allows women to also receive the Accolade and to be "dubbed". It also removes courtesy titles for wives of any Knights, honoured after the date the Bill is passed (existing courtesy titles may continue to be used), so the spouses, civil union partners and de facto partners of Knights and Dames are all treated in the same manner.

____________________

[Member of Parliament]

New Zealand Order of Merit (Modernisation of Titular Titles) Bill Member's Bill

Contents 1 Title 2 Commencement 3 Purpose 4 Act to bind Crown 5 Te Reo Māori Titular Titles 6 Accolade of Knighthood 7 Removal of Courtesy Titles ____________________

The Parliament of New Zealand enacts as follows:

1 Title This Act is the New Zealand Order of Merit (Modernisation of Titular Titles) Bill 2009.

2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent.

3 Purpose The purpose of this Act is: (a) to amend the Statutes of the New Zealand Order of Merit to provide for titular titles in Te Reo Māori, namely "Tā" and "Kahurangi"; (b) to remove discriminatory elements of the titular titles and highest honours.

4 Act to bind Crown This Act binds the Crown.

5 Te Reo Māori Titular Titles (1) Clause 20 of the Statutes of the New Zealand Order of Merit (SR 1996/205) is revoked and the following clause is substituted: "20. Ordinary and Additional members of the first and second levels of this Order may use the following appellations before their forenames from the date of their appointment:(a) in the case of a man of, "Sir" or "Tā"; and (b) in the case of a woman, "Dame" or "Kahurangi"." (2) Clauses 3(2)(c) and 4(2)(c) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Sir" wherever it appears, the words "or "Tā"". (3) Clauses 3(3)(b) and 4(3)(b) of the Additional Statutes of The New Zealand Order of Merit (2009/90) are amended by inserting after the word "Dame" wherever it appears, the words "or "Kahurangi"".

6 Accolade of Knighthood Clause 16 of the Statutes of the New Zealand Order of Merit (SR 1996/205) is revoked and the following clause is substituted: "16. It shall be competent for Our Chancellor of this Order to perform in Our Name, and on Our behalf, the ceremony of investing persons admitted to this Order with the insignia of their dignity and confer the Accolade of Knighthood on Knights Grand Companions, Dames Grand Companions, Knights Companions and Dames Companions if such Knights or Dames have not previously received the Accolade."

7 Removal of Courtesy Titles (1) Wives of Ordinary and Additional members admitted to the first and second levels of the New Zealand Order of Merit after the commencement of this Act are not entitled to used the courtesy title of "Lady" before their surname. (2) For the avoidance of doubt, wives of Ordinary and Additional members admitted to the first and second levels of the New Zealand Order of Merit before the commencement of this Act may continue to use before their surname (while it remains the same as that of their husband) the courtesy title of "Lady".

Ambach - is it really a provocation defence case?

> R v Ambach (10.07.2009, CRI-2007-004-027374) I see the High Court ruling on whether the defences of automatism (based on drunkeness) and provocation should be put to the jury is now available. I must say it is only a partial piece of the jigsaw. As I note in some comments I made on another website, reproduced below, we still can't be confident about the reason for the manslaughter verdict. The ruling corroborates this uncertainty. As automatism was in issue (albeit ruled out as being caused by a drug), it suggests the possibility of a lack of intent due to drunkeness was a very real issue. Although provocation was allowed, reading between the lines, there is some suggestion it was a weak case without a strong foundation. It will be interesting and important to consider the judge's reasons when she sentences Ambach soon. That might shed some light on whether it is another tragic provocation defence case. However, whether or not this case ultimately turned on provocation, the great dark clouds that hangs over these types of case may be a reason itself to support its abolition anyways. - - - - - I think we might need to take some care at this point about what we read into the Ambach-Brown. I share the concerns about the egregious way the provocation defence is deployed by the killers of gay men. And I am similarly frustrated that it's taken a high-profile case involving a heterosexual woman to trigger the abolition of a defence when gay groups have been lobbying for abolition for years. However, I'm not sure we can confidentally assume that Ambach's acquittal turned on provocation. As I read the reports, the case for provocation was quite tenuous and the judge instructed the jury accordingly. A manslaughter verdict may also have arisen from a lack on intent (due, I understand, to claims of intoxication). In some respects we won't know because a jury does not need to provide reasons for it's verdict. But it might be that some light is provided by the judge when she sentences Ambach shortly. That's not to take away from awfulness of the case or the provocation defence - but categorising is as a successful provocation case might be premature at this point.

Starter for.... 40 marks

It's still blogger-light for me. But with good reason. Although teaching has finished, I'm busy marking 300 legal opinions / assignments for Public Law! The assessment problem is no great secret (past exam questions and some other assessment is routinely made available). I thought some of you might be interested to see an example of how we test students' knowledge and skills. Below is the problem. And perhaps some of you might be interested in giving it a go yourself! You have 1,800 words!
Problem [Total: 40 marks]
In August 2009, the current government is a National-led government and is the same government that was constituted following the November 2008 general election. That is, the number of MPs elected for each party is as follows:
- National 58
- Labour 43
- Green 9
- ACT 5
- Māori 5
- Progressive 1
- United Future 1
- TOTAL 122
The National Party has confidence and supply arrangements with the ACT, Māori and United Future parties ([see http://www.parliament.nz/en-NZ/MPP/Parties/ for copies of the agreements]). You are a constitutional lawyer within the Department of Prime Minister and Cabinet. The Prime Minister, the Hon John Key, has asked you for various pieces of advice, at different times, on a number of the legal and constitutional issues arising from the events that follow. Provide the advice requested by the Prime Minister, giving reasons in support of your advice. You must presume that the advice you give the Prime Minister is based on the events up to the date on which the advice is requested.
Writing style and structure [5 marks] As noted above, your writing style and structure of your opinion, including compliance with the Style Guide will also be assessed.
On 4 August 2009, John Key announces that Cabinet has agreed to introduce the Land Transport (Boy Racer Eradication) Amendment Bill 2009 into Parliament and intends to pass the Bill under urgency before the end of the week. A copy of the Bill, as introduced by the Minister of Transport, the Hon Steven Joyce, on the same day, is attached. The New Zealand Law Society's Rule of Law committee immediately issues a media release indicating that it will be investigating the Bill because of concerns that the Bill is inconsistent with the Rule of Law.
Issue 1: 4 August 2009 [10 marks]
The Prime Minister seeks advice on whether or not the Land Transport (Boy Racer Eradication) Amendment Bill 2009 is consistent with the Rule of Law and, if not, the aspects of the Bill that are inconsistent with the Rule of Law.
On 5 August 2009, the Minister of Local Government, the Hon Rodney Hide (a Minister outside Cabinet), is interviewed by Mikey Havoc on his regular political show on 95bFM. In the course of the interview, Rodney Hide says the following:
 "HIDE: Oh, ACT is still working out whether we'll support the Bill or not. You know, ACT is tough on crime. We're pushing the "three strikes and you're out" Bill. We think the government has gone soft on this one. When this idea came to the Cabinet committee, I argued strongly that we should not just destroy the cars, but we should burn the cars in public. And as for the rapscallions who were driving the cars, we should put them on weeding duty along the roads where they were cruising. Put pink overalls on the rascals, like they do with the graffiti. That's what I reckon. That'll stomp out this anti-social behaviour. But this guy Joyce is a wimp and wouldn't have a bar of it. And that Finlayson chap kept spouting that human rights mumbo-jumbo. I reckon I could have turned Crusher Collins though. She's one of the few who warmed to this idea. But Sharples was concerned about the effect of the law on young Māori, particularly their economic wellbeing if these expensive cars are seized when they still owe lots to finance companies. And he was worried about their education and how they might get to school and wānanga if they lose their cars. And I'm not sure I like this idea of leaving it to the local authorities to choose which roads to designate as cruise-free zones. What a waste of time. More red tape. I've been working hard to cut rates for ratepayers and oppose any extra duties for local authorities. My idea was to cut out the local authorities and to make the offence apply to every road."
Issue 2: 5 August 2009 [5 marks]
The Prime Minister seeks advice, from a constitutional perspective, on what, if any, steps he is entitled to take or obliged to take in relation to the comments made by Rodney Hide on the 95bFM radio show.
The following day on 6 August 2009, the Bill is passed under urgency, with ACT ultimately agreeing to vote for the Bill after being given an assurance that in return the National Party would expedite ACT's Taxpayer Rights Bill. The Governor-General immediately assents to the Bill and it becomes law. Five months later, once local authorities have designated some roads as cruise-free roads, the Act starts to have an effect on boy racers. Over 100 vehicles are seized and destroyed. The Police report that nearly 40% of the vehicles destroyed are Toyota Corolla FXGT vehicles. The government then recommends to the Governor-General that a regulation be promulgated under section 9 of the new Act to prohibit the importation of Toyota Corolla FXGT vehicles.
On 7 January 2010, the Governor-General accedes to that advice and promulgates a regulation to that effect.
On 8 February 2010, a problem arises. Reports start to emerge that the Police have used the seizure and destruction power under the new Act to seize and destroy three politically branded Volkswagen cars owned by Māori Party MPs. The cars were driving repeatedly up and down Lambton Quay, covered in red and black balloons, celebrating the repeal of Foreshore and Seabed legislation.
A well-known left-wing blog alleges that the Minister of Police, the Hon Judith Collins, may have had a hand in the Police action and may have improperly directed the Police to target the Māori Party cars. As a result, Māori Party list and backbench MP, Hone Harawira, issues the following media statement:
"FESS UP OR RESIGN The illegal seizure of the cars by the Police is a scandal" says Hone Harawira. "Even if the cars were cruising down Lambton Quay, the seizure of the cars was unlawful because the cars were not owned by boy racers and did not meet the criteria for seizure and destruction under the Land Transport (Boy Racer Eradication) Amendment Act 2009." Harawira called on the Minister of Police to come clean about her involvement in the seizure. "The unlawful seizure suggests that there are rotten apples in Collins' police department. Or there is inappropriate influence coming from the Minister herself. She must resign. If she doesn't, the Prime Minister must dismiss her forthwith. If she doesn't go, the Māori Party will withdraw its support for the government."
On the same day, the Prime Minister is quizzed at his weekly press conference about the Māori Party threat to withdraw and says the threat is a hollow one:
"They'll stay on board. If they don't, we'll sue them for reneging on their contract with us."
That comment riles the Māori Party and it announces the withdrawal of its support for the government on matters of confidence and supply and the resignation of its ministerial positions.
Issue 3: 8 February 2010 [5 marks]
The Prime Minister seeks advice on whether, constitutionally, the Hon Judith Collins is obliged to resign or whether he is obliged to dismiss her. Further, he also seeks advice on the legal and/or constitutional implications of the Māori Party reneging on its confidence and supply agreement.
On 9 March 2010, on the back of a grim previous month, the government announces its Budget. Due to the recession, the Budget includes a reduction in funding for the Police. The Minister of Finance, the Hon Bill English, explains this on the radio:
"Each department needs to pull its weight and help us through the tough times. The police department is no different."
However, Rodney Hide is outraged. He says it's another example of the National Party being "all bark and no bite" on crime. In his speech on the first reading of one of the first budget Bills, the Appropriation (2010/11 Estimates) Bill, Rodney Hide announces the immediate withdraw of his party's support for the government on confidence and supply and the resignation of its ministerial positions.
A vote is then had on the first reading of the Appropriation Bill. The National and United Future parties vote for the Bill; the Labour, Green, ACT and Māori parties vote against the Bill; the Progressive party abstains from the vote.
Issue 4: 9 March 2010 [10 marks]
The Prime Minister seeks advice on the constitutional position following the vote in the House on 9 March 2010. The Prime Minister wants to know what his constitutional obligations are in this situation. Further, the Prime Minister wants to know what powers, if any, the Governor-General may exercise in these circumstances, along with advice about how the exercise of those powers or associated processes is constrained by constitutional convention.
On the next day, on 10 March 2010, the Labour leader, the Hon Phil Goff, announces that he believes the defection of the ACT party might mean he has the numbers to form an alternative government, if he can secure a deal with the ACT party. On the same day, international problems arise. The Japanese government, concerned at the regulation preventing its main car manufacturer from exporting its cars to New Zealand, announces that unless the regulation is revoked immediately, the Japanese government will impose a compulsory boycott of all dairy exports from New Zealand.
The next day, on 11 March 2010, the Labour Party leader publicly announces that he believes he has successfully garnered coalition agreements with the Green, ACT, Māori, and Progressive parties and, as a result, he is entitled to be appointed Prime Minister. He publicly releases the coalition agreements and says he will be asking the Governor-General to appoint him as Prime Minister at the first opportunity. However, as the Governor-General is conducting a ceremony conferring a knighthood on a local resident on the Chatham Islands, Phil Goff is not formally appointed and sworn in as new Prime Minister until the following day, 12 March 2010, once the Governor-General returns to Wellington.
Issue 5: 10 and 11 March 2010 [5 marks]
The Prime Minister seeks advice on whether it is lawful and/or constitutional for him to advise the Governor-General, either on 10 March 2010 or 11 March 2010, to revoke the regulations prohibiting the importation of Toyota Corolla FXGT vehicles.

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Hon Steven Joyce Land Transport (Boy Racer Eradication) Amendment Bill 2009
Government Bill
The Parliament of New Zealand enacts as follows: 1 Title This Bill is the Land Transport (Boy Racer Eradication) Amendment Bill 2009. 2 Commencement This Bill comes into force on the day after the date on which it receives the Royal assent. 3 Purpose The purpose of this Bill is to: (a) authorise local authorities to designate certain roads as cruise-free roads; and (b) provide greater deterrence for anti-social boy racer behaviour by allowing vehicles driven by young boy racers to be crushed and destroyed. 4 Interpretation In this Bill, unless the context otherwise requires, cruise means driving repeatedly over the same section of a road in a vehicle in an anti-social manner designated cruise-free road means a road designated as a cruise-free zone under clause 6. 5 Offence to cruise on a designated cruise-free road (1) Every person commits an offence who cruises on a designated cruise-free road. (2) A person who commits an offence against subclause (1) is liable on summary conviction to a fine not exceeding $2,500. 6 Local authorities may designate roads as cruise-free roads (1) A local authority may, from time to time, by resolution designate any road within its district as a cruise-free road. (2) Before making a resolution under subclause (1), the local authority must: (a) give 3 month's public notice of its intention to designate the road as a cruise-free road; and (b) allow the public to make written submissions on whether the road should be designated as a cruise-free road. (3) Once a resolution is passed, the relevant road is deemed to have been designated as a cruise-free road from the date of the public notice given under subclause (2)(a). 7 Police may seize and destroy vehicles driven on a cruise-free road (1) A constable may seize and direct that a vehicle be destroyed, without further order of the Court, if the following conditions are all satisfied: (a) the vehicle is used in the commission of an offence under clause 5 (cruise on a designated cruise-free road); and (b) the car is operated by a male driver under the age of 25; and (c) the constable believes that the destruction of the vehicle may discourage the driver from engaging in cruising and other anti-social behaviour in the future. 8 Protection against certain actions Where a constable, in good faith, directs that a vehicle be destroyed under clause 7, no proceedings, civil or criminal, shall lie against the Crown, the constable, or any other person in respect of the destruction of the vehicle, or for any consequences that flow from the destruction of the vehicle. 9 Regulations (1) The Governor-General may, from time to time, by Order in Council, make regulations prohibiting the importation of any specified class or classes of vehicles if that class or those classes of vehicles are disproportionality used in the commission of offences under clause 5. (2) Any regulation made under subclause (1) may, from time to time, by Order in Council, be varied or revoked.