What Judicial Review Actually Is

A check on power, not a second opinion on the decision

Judicial review is the principal way the courts hold public power to account. When a public body exercises a power given to it by Parliament — a Minister, a government department, a tribunal, a council, or any official making a decision under statute — the High Court can be asked to examine whether that power was used within the law. The jurisdiction is described as supervisory because the court supervises the process; it does not step into the decision-maker’s shoes.

That distinction does a great deal of work. The court is not asking whether it would have reached the same conclusion, or whether the decision was wise or generous. It is asking whether the decision was made lawfully, fairly, and reasonably. If it was not, the usual outcome is that the decision is set aside and sent back to the original decision-maker to be made again, properly, according to law. The court rarely substitutes its own decision for the one under challenge. The point of the remedy is to correct the process, not to award the applicant the result they wanted.

The power being reviewed is what the Judicial Review Procedure Act 2016 calls a statutory power. Section 5 of the Judicial Review Procedure Act 2016 defines that term broadly, reaching a power or right conferred by or under an Act, or under the constitution or rules of a body corporate, to make a decision affecting a person’s rights, obligations, or interests. That breadth is why judicial review touches so many of the decision-makers ordinary people actually deal with, from statutory boards to the governing committees of incorporated societies.

The three grounds: illegality, unreasonableness, and unfair process

The grounds of review are usually grouped into three (3) broad heads, a classification drawn from the decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 and applied consistently in New Zealand. The heads overlap, and a single set of facts will often engage more than one.

The first is illegality. A decision-maker acts illegally when it gets the law wrong — when it acts beyond the power Parliament gave it, misreads the statute it is working under, declines to exercise a discretion it is required to exercise, applies a rigid policy without considering the individual case, or takes into account something the law says is irrelevant while ignoring something the law says must be weighed. The empowering statute is always the starting point, because it defines the boundaries of the power.

The second is unreasonableness, sometimes called irrationality. The classic formulation comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223: a decision can be struck down if it is so unreasonable that no sensible decision-maker, properly applying its mind, could have arrived at it. That is a high threshold, and New Zealand courts have at times preferred to describe it more simply as a decision outside the limits of reason. The intensity of the court’s scrutiny rises where fundamental rights are at stake.

The third is procedural impropriety — a failure of fair process. This is the ground that matters most often in practice, and it carries the two pillars of natural justice: the right to be heard, meaning a fair hearing and a genuine opportunity to put your case before the decision is made; and the rule against bias, meaning the decision-maker must be impartial and must not have an interest in the outcome. It also covers a failure to follow a procedure the empowering statute itself requires. The right to the observance of natural justice, and the right to apply for judicial review, are both affirmed in section 27 of the New Zealand Bill of Rights Act 1990.

How a review runs, and what the High Court can do

Procedure is the work of the Judicial Review Procedure Act 2016, which re-enacted the older Judicature Amendment Act 1972 and gathered the various historical remedies into a single application for review. A person with a sufficient interest files in the High Court, identifies the statutory power and the decision under attack, sets out the facts, and pleads the grounds. Where the challenge is to the exercise of a power by the Crown, the Attorney-General is brought in. The court can make interim orders to hold the position while the case is decided, including staying the decision under review.

The remedies are set out in section 16 of the Judicial Review Procedure Act 2016. In place of the old prerogative writs, the High Court may grant any relief the applicant could have obtained through them: an order quashing an unlawful decision, an order prohibiting a body from acting unlawfully, an order compelling a public body to perform a duty it has refused to perform, a declaration of the parties’ legal position, or an injunction. Under section 17 of the Judicial Review Procedure Act 2016, the court can direct the decision-maker to reconsider and remake the decision in line with the court’s findings, which is the most common practical result.

Every one of these remedies is discretionary. Even where a ground of review is made out, the court may decline relief — for instance where the breach made no real difference, or where the applicant had an adequate alternative remedy and did not use it. That last point leads directly to the situation most workers will encounter.

Why this matters at work: the Authority is reviewed differently

If your dispute is with an employer and it has been to the Employment Relations Authority, judicial review is almost never your path. Parliament built a complete, self-contained route through the Employment Relations Act 2000, and it deliberately kept the ordinary judicial review jurisdiction of the High Court out of it. The Employment Relations Authority is an investigative body whose role is set out in section 157 of the Employment Relations Act 2000, and the way to contest what it decides is not to review it but to challenge it.

A party who is dissatisfied with a determination of the Authority may elect, under section 179 of the Employment Relations Act 2000, to have the matter heard by the Employment Court. That election is called a challenge, and it must be filed within twenty-eight (28) days. The challenging party says whether it wants a full rehearing of the whole matter, or a narrower challenge confined to specified errors of law or fact.

Judicial review of the Authority does exist, but it is a narrow and last-resort remedy, not an alternative to the challenge. It is governed by section 184 of the Employment Relations Act 2000, which restricts it in two important ways. First, no review proceedings may be brought until the challenge rights under section 179 of the Employment Relations Act 2000 have been used and the Employment Court has decided the challenge under section 183 of the Employment Relations Act 2000. Second, review is available only on the narrow and original sense of jurisdiction — in essence, that the Authority had no entitlement to enter on the inquiry at all, or made an order outside the classes of order it is authorised to make.

Even then, the review does not go to the High Court. An application for review of the Authority is made to the Employment Court under section 194 of the Employment Relations Act 2000, the Employment Court being a court of equal standing to the High Court with jurisdiction over employment matters under section 187 of the Employment Relations Act 2000. Review of the Employment Court itself runs to the Court of Appeal, not the High Court, under section 213 of the Employment Relations Act 2000. The Judicial Review Procedure Act 2016 respects that scheme: section 7 of the Judicial Review Procedure Act 2016 expressly makes the general review procedure subject to the jurisdiction the Employment Relations Act 2000 gives the Employment Court and the Court of Appeal.

Legislation cited is linked to the current consolidated text on the New Zealand Parliamentary Counsel Office website at legislation.govt.nz. Case authorities are linked to the Working for Workers case law and reference repository at caselawandreference.workingforworkers.nz. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 are English authorities named for the origin of the grounds of review; they are not held in the repository and are referenced as settled doctrine. Confirmed section anchors for the Judicial Review Procedure Act 2016 are sections 5, 16, and 17; section 7 is linked to the Act root pending a confirmed anchor.