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Published online by Cambridge University Press: 01 January 2025
It is elementary in administrative law that there is no such thing as unfettered discretion–yet, in a development that appears to have gone largely unnoticed, statutes increasingly confer ‘absolute discretion’ on public decision-makers. This article explores and evaluates these provisions and their judicial treatment in New Zealand. It surveys the range of contexts in which they are used and the various purposes or functions they appear to serve, and evaluates each against orthodoxy. It also surveys the judicial responses to such provisions, finding that these are mixed and too often muted. Of particular concern are the ‘absolute discretion’ provisions in the Immigration Act, and the lack of a consistently resolute judicial response to these.
I am grateful to Yoav Zionov for carrying out the quite extensive research required for this article; to Ross Carter for very enlightening discussions; and to the anonymous referees for some helpful comments and suggestions. The usual disclaimer applies.
1 Mark, Aronson, Matthew, Groves and Greg, Weeks, Judicial Review of Administrative Action (6th ed, Thomson Reuters, 2017) 116–22Google Scholar [3.20]–[3.50].
2 It seems that a similar examination of the Australian situation remains to be done; but see generally ibid.
3 See Legislation Advisory Committee, Legislation Advisory Committee Guidelines: Guidelines on Process and Content of Legislation (2014 ed, October 2014), pts 3, 25.1; see also pt 14.2.
4 Neither does the Law Commission, Legislation Manual: Structure and Style, Report No 35 (1996).
5 Doug, Tennent, ‘Absolute Discretion in Immigration’ [2012] New Zealand Law Journal 144Google Scholar; Jessica, Birdsall-Day, ‘Section 177 of the Immigration Act’ [2012] New Zealand Law Journal 230Google Scholar. The matter is also touched on in Tim, Cochrane, ‘A General Public Law Duty to Provide Reasons: Why New Zealand Should Follow the Irish Supreme Court’ (2013) 11 New Zealand Journal of Public and International Law 517Google Scholar.
6 Mark, Aronson, ‘Between Form and Substance: Minimising Judicial Scrutiny of Executive Action’ (2017) 45 Federal Law Review 519Google Scholar; see also Rayner, Thwaites, ‘The Changing Landscape of Non-Justiciability’ [2016] New Zealand Law Review 31, 60Google Scholar; Amanda, Sapienza, ‘Justiciability of Non-Statutory Executive Action: A Message for Immigration Policy-Makers’ (2015) 79 AIAL Forum 70Google Scholar.
7 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030 (Lord Reid).
8 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (‘CCSU’); R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453; R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815.
9 Burt v GovernorGeneral [1992] 3 NZLR 672 (CA); R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349; Lewis v Attorney-General of Jamaica [2001] 2 AC 50.
10 See, eg, Pora v Attorney-General [2017] NZHC 2081 (28 August 2017), [103]; R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864.
11 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (‘Anisminic’); Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) (‘Bulk Gas’). Note, however, acceptance in R (Privacy International) v Investigatory Powers Tribunal [2017] EWCA Civ 1868 that this does not necessarily apply to court-like bodies.
12 Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690, [105] (CA).
13 Affco New Zealand Ltd v Employment Court [2017] NZCCLR 11, [37] (CA).
14 Reade v Smith [1959] NZLR 996 (SC); Anisminic [1969] 2 AC 147, 212; Bulk Gas [1983] NZLR 129, 136 (CA); Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597, [23], [52] (SC). But cf R v Secretary of State for the Environment; Ex parte Hammersmith and Fulham LBC [1991] 1 AC 521, 593.
15 See, eg, Legislative Advisory Committee, above n 3.
16 But the boundaries of what counts as public have been drawn fairly generously: see, eg, R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815; Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
17 R v Somerset County Council; Ex parte Fewings [1995] 1 All ER 513, 523–5 (Laws J); affirmed in R v Somerset County Council; Ex parte Fewings [1995] 1 WLR 1037 (Bingham LJ) (CA).
18 That old approach can still be seen in CCSU [1985] 1 AC 374, 418.
19 See, eg, R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6.
20 See, eg, Curtis v Minister of Defence [2002] 2 NZLR 744 (CA).
21 B V, Harris, ‘Judicial Review, Justiciability and the Prerogative of Mercy’ (2003) 62 Cambridge Law Journal 631, 635–6Google Scholar.
22 R v Inland Revenue Commissioners; Ex parte National Federation of Self-employed and Small Businesses Ltd [1982] AC 617; Environmental Defence Society v South Pacific Aluminium (No 3) [1981] 1 NZLR 216 (CA).
23 Paul, Daly, A Theory of Deference in Administrative Law: Basis, Application, and Scope (Cambridge University Press, 2012)Google Scholar ch 7.
24 Attorney-General v Unitec Institute of Technology [2007] 1 NZLR 750 (CA).
25 See, eg, Singh v Chief Executive of the Ministry of Business, Innovation and Employment [2014] 3 NZLR 23 (CA).
26 See, eg, Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690, [19], [89], [106]–[107], [184]–[187] (CA); McGrath v Accident Compensation Corporation [2011] 3 NZLR 733 (SC) (‘McGrath’).
27 Air Nelson Ltd v Minister of Transport [2008] NZAR 139, [59]–[69] (CA); Ririnui v Landcorp Farming Ltd [2016] 1 NZLR 1056, [112] (SC) (‘Ririnui’) (see also [131]–[137], [140]–[149], [189]–[192]).
28 See, eg, R v Secretary of State for the Environment; Ex parte Ostler [1977] 1 QB 122; Rajan v Minister of Immigration [2004] NZAR 615 (CA).
29 Upheld, eg, in Love v Porirua [1984] 2 NZLR 308 (CA).
30 Upheld prominently in Tannadyce Investments Ltd v Commissioner of Inland Revenue [2012] 2 NZLR 153 (SC) (‘Tannadyce’); Ramsay v Wellington District Court [2006] NZAR 136 (CA); Affco New Zealand Ltd v Employment Court [2017] NZCCLR 11 (CA).
31 This is emphasised in all three cases cited in the previous footnote. Similarly, in McGrath [2011] 3 NZLR 733 (SC) it appears that judicial review proceedings were entertained despite the exclusive remedies clause in the relevant legislation because the statutory avenues were not available for the preliminary decision that was challenged: see Andrew, Beck, ‘Accident Compensation and the Supreme Court’ [2012] New Zealand Law Journal 161Google Scholar.
32 Notably in Tannadyce [2012] 2 NZLR 153 (SC) (Elias CJ and McGrath J).
33 Very arguably, that is the effect of Charter Holdings Ltd v Commissioner of Inland Revenue (2016) 27 NZTC 22–075 (CA) (‘Charter Holdings’).
34 Some of these Acts or Regulations contain two or more such provisions.
35 At the Commonwealth of Australia level we located 45 individual provisions containing the phrase ‘absolute discretion’. At the State level, there were six in the Australian Capital Territory; 52 in New South Wales; 30 in the Northern Territory; 21 in Queensland; 65 in South Australia; 49 in Victoria; and 30 in Western Australia. Tasmania shows as having 197 provisions, but this includes both current and repealed provisions.
36 At the federal level in Canada, we found only four statutes and two regulations, though all concerned significant matters (parole, criminal record suspension, and fishing licences). In the provinces, numbers ranged from none at all for Quebec; to fewer than 10 for each of British Columbia, Alberta, the territories and the smaller provinces; to 20 for Ontario and Saskatchewan; to 86 for Manitoba.
37 The sole modern instance in the United Kingdom is s 25(8) of the London Olympic Games and Paralympic Games Act 2006 (UK) and regulations under that provision, concerning authorisation for street trading in the vicinity of the games. The regulations provide for a review on the merits of decisions made in the exercise of the absolute discretion.
38 A related provision concerning deportees is in the Parole Act 2002 (NZ) s 55.
39 See, eg, Immigration Act ss 17(3), 71(5), 72(3), 76(3).
40 Education Act 1989 (NZ) ss 146, 153, 154, 156, 156A. Thanks to Sally McKechnie for drawing this to my attention.
41 Ibid s 418.
42 Ibid s 158B.
43 Housing Restructuring and Tenancy Matters Act 1992 (NZ) s 72, and similarly s 92 (first inserted as s 43 by amendment in 2000).
44 Insolvency (Personal Insolvency) Regulations 2007 (NZ) regs 10(2), 11(2).
45 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (NZ) s 33.
46 Social Workers Registration Act 2003 (NZ) s 24; Health and Disability Services (Safety) Act 2001 (NZ) s 29; West Coast Wind-blown Timber (Conservation Lands) Act 2014 (NZ) s 15; Crown Pastoral Land Act 1998 (NZ) ss 32, 86; Boxing and Wrestling Regulations 1958 (NZ) reg 4(2), continued in force by the Boxing and Wrestling Act 1981 (NZ) s 12(4). Some other old provisions in this category are still on the books but have been rendered entirely or largely inoperative: Continental Shelf Act 1964 (NZ) s 5, cf s 5AA (inserted in 2013); Rock Oyster Farming Regulations 1964 (NZ) reg 11.
47 Royal Society of New Zealand Act 1997 (NZ) s 15; Maori Community Development Act 1962 (NZ) s 15A (inserted by Maori Purposes Act 1975 (NZ).
48 Auckland Regional Amenities Funding Act 2008 (NZ) s 15.
49 Lawyers and Conveyancers Act 2006 (NZ) ss 238–9; Insolvency (Personal Insolvency) Regulations 2007 (NZ) reg 53.
50 Resource Management Act 1991 (NZ) s 36AAB; Conservation Act 1987 (NZ) ss 60B, 26ZZO (inserted in 1988 and 1996 respectively); West Coast Wind-blown Timber (Conservation Lands) Act 2014 (NZ) s 12; Local Government Act 2002 (NZ) s 150A; Road User Charges Act 2012 (NZ) s 33; Biosecurity Act 1993 (NZ); National Parks Act 1980 (NZ) s 56H (inserted in 1996); Agricultural Compounds and Veterinary Medicines Act 1997 (NZ) s 7A; Te Urewera Act 2014 (NZ) s 20; Education Act 1989 (NZ) s 238J (inserted in 2015); Immigration Act s 180(3). Rating Valuations (Local Authority Charges) Regulations 1999 (NZ) regs 6, 9; Rotoira Trout Fishing Regulations 1979 (NZ) reg 15.
51 For instance, Queenstown Reserves Vesting and Empowering Act 1971 (NZ) s 8; and provisions in a series of Reserves and Other Lands Disposal Acts dating from 1925, 1943 and 1946.
52 Wellington Regional Council (Stadium Empowering) Act 1996 (NZ) s 4; Crown Research Institutes Act 1992 (NZ) s 44; Reserves and Other Lands Disposal Act 1936 (NZ) s 22; Wellington City and Suburban Districts Ambulance Transport Service Act 1927 (NZ) s 2.
53 Reserves and Other Lands Disposal Act 1963 (NZ) s 23; St Mary's Church (Karori) Burial Ground Act 1963 (NZ) s 4; Petone Borough Council Empowering Act 1956 (NZ) s 7; Wellington City Empowering Act 1928 (NZ) s 4.
54 Weathertight Homes Resolution Services Act 2006 (NZ) s 57.
55 Immigration Advisers Licensing Act 2007 (NZ) s 49.
56 Immigration Act ss 233(2), 233(4).
57 Coroners Act 2006 (NZ) ss 75 and 126.
58 Acts or Regulations pre-dating 1968 and still on the books number 22.
59 Ridge v Baldwin [1964] AC 40; Padfield [1968] AC 997; Anisminic [1969] 2 AC 147.
60 Padfield [1968] AC 997, 1030 (Lord Reid).
61 See, eg, Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] 2 NZLR 662, [8] (CA); Singh (Kulbir) v Chief Executive, Ministry of Business, Innovation and Employment [2016] NZAR 93, [46]–[60], [64] (CA) (‘Singh (Kulbir)’). For more emphatic statements, see Cao v Ministry of Business, Innovation and Employment [2014] NZAR 871, [36] (HC) (‘Cao’); Ning v Minister of Immigration [2016] NZHC 697 (15 April 2016) [24] (‘Ning’); McKelvey v Minister of Immigration [2017] NZHC 659 (6 April 2017) [34] (‘McKelvey’).
62 See, eg, Hon Hekia Parata (Minister of Education) (12 April 2017) 721 NZPD 17453.
63 Liu [2014] 2 NZLR 662, [8] (CA); Singh (Kulbir) [2016] NZAR 93, [46] (CA); Zhang v Associate Minister of Immigration [2016] NZAR 1222, [23] (CA) (‘Zhang’).
64 Balubal v Chief Executive, Department of Labour (Unreported, HC Auckland, CIV-2011-404-1773, 29 September 2011) (‘Balubal’), [29].
65 Nguyen v Minister of Immigration [2014] NZHC 2524 (15 October 2014) [20].
66 See, eg, Taefi v Weathertight Homes Tribunal (No 2) (Unreported, HC Auckland, CIV-2008-404-6709, Heath J, 10 October 2008) (urgent interim relief); Chee v Stareast Investment Ltd (Unreported, HC Auckland, CIV-2009-404-5255, 1 April 2010).
67 Housing New Zealand Corporation v Auckland District Court [2008] NZAR 389, [19] (HC) (‘Housing NZ’).
68 Housing New Zealand Corporation v Auckland District Court [2009] NZAR 313 (CA) (‘Housing NZ’). The Court relied on the scheme and purpose of the Act rather than on the ‘absolute’ wording.
69 Elements of this definition are reiterated in various other provisions of that Act, including in s 177.
70 Housing NZ [2009] NZAR 313 (CA), interpreting the Housing Restructuring and Tenancy Matters Act 1992 (NZ) s 43 (the predecessor of s 72, in force until 2014).
71 See Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, [85] (CA) on reasons; Hanna, Wilberg, ‘Administrative Law’ [2010] New Zealand Law Review 177, 202–6Google Scholar on a duty to inquire.
72 Social Workers Registration Act 2003 (NZ) s 24.
73 Hill Country Corporation Ltd v Hastings District Council [2010] NZRMA 539, [48]–[51]; Porirua City Council v Ellis [2017] NZHC 784 (26 April 2017) [49]: both interpreting Resource Management Act 1991 (NZ) s 36(5) (the predecessor to 36AAB).
74 See, eg, Zhang [2016] NZAR 1222, [23], [31] (CA); see also [34]; Devi v Minister of Immigration [2017] NZHC 728 (12 April 2017) [15], [29] (‘Devi’); Singh (Amarjit) v Associate Minister for Immigration [2016] NZHC 2888 (1 December 2016) [12], [25].
75 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229; and discussion in Paul, Craig, Administrative Law (8th ed, Sweet & Maxwell, 2016)Google Scholar [19–002].
76 Singh (Kulbir) [2016] NZAR 93, [64] (CA).
77 Ibid [46].
78 The reading referring to the broader set of grounds is adopted in Nair v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZHC 345 (3 March 2016), [56]–[57] (outcome overturned on appeal, but not on this point: Chief Executive of the Ministry of Business, Innovation and Employment v Nair [2016] NZAR 836 (CA) (‘Nair’)). On the other hand, this reading was considered and rejected in Singh (Amarjit) [2016] NZHC 2888 (1 December 2016) [7]–[12].
79 See the cases in nn 80–91 below. But cf, eg, Zhang [2016] NZAR 1222, [34]; Devi [2017] NZHC 728, [29]; Singh (Amarjit) [2016] NZHC 2888 (1 December 2016) [25].
80 Ning [2016] NZHC 697 (15 April 2016) [39]–[40].
81 Ibid [24]; Cao [2014] NZAR 871, [37]; Nair [2016] NZHC 345, [56]–[57] (overturned on appeal, but not on this point).
82 Ministry of Education (NZ), Ed Act Update FS 12: Absolute Discretion Around Schooling Provision (19 May 2017) <https://www.education.govt.nz/assets/Documents/Ministry/Legislation/Ed-Act-Update-Factsheets/Ed-Act-Update-FS-12-Absolute-discretion-around-schooling-provision.pdf>.
83 Ibid.
84 Education Act 1989 (NZ) s 145AAA.
85 Lawyers and Conveyancers Act 2006 (NZ), ss 328–9.
86 For instance, the Education Act 1989 (NZ) s 157 continues to require consultation for decisions that are now in the Minister's ‘absolute discretion’ (albeit the amending legislation introduced some ‘streamlining’ of the consultation requirements: see n 134); see also, eg, Hon Hekia Parata (Minister of Education) (12 April 2017) 721 NZPD 17465–6. And, in a different context, see Dean v Chief Executive of the Ministry of Business, Innovation and Employment [2017] NZHC 588 (29 March 2017) [45]–[47] (‘Dean’). A final example is found in the Social Workers Registration Legislation Bill 2017 (NZ) cl 12, which would insert a defined and limited right to be heard into the absolute discretion provision in s 24 of Social Workers Registration Act (NZ).
87 Huynh v Ministry of Business, Innovation and Employment [2017] NZHC 730 (7 April 2017) [21]–[23] (interim relief application).
88 Leung v Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1158 (17 May 2012) [11]–[12] (interim relief application).
89 Relying on Daganayasi v Minster of Immigration [1980] 2 NZLR 130 (CA).
90 Dean [2017] NZHC 588 (29 March 2017) [45]–[47] (interim relief).
91 Ibid, [40].
92 Henderson v Official Assignee [2015] NZHC 1341 (12 June 2015) [56], [59] (‘Henderson’).
93 See Kacem v Bashir [2011] 2 NZLR 1 (SC).
94 Glynbrook 2001 Ltd v The Official Assignee for New Zealand [2012] NZCA 289 (2 July 2012). For a similar ruling in the context of a different statute, see also Hitex Building Systems Ltd v Wilkinson [2014] NZHC 475 (14 March 2014) (‘Hitex’).
95 See, eg, Immigration Act 2009 (NZ) s 48(7); Housing Restructuring and Tenancy Matters Act 1992 (NZ) s 61(1) (this was the version prior to amendments in 2014; the current version simply provides no right of appeal from the decisions of Housing New Zealand Corporation at all: s 132(1)).
96 Housing NZ [2008] NZAR 389, [44] (HC); the decision was overturned on appeal, but not on this point.
97 For instance, Queenstown Reserves Vesting and Empowering Act 1971 (NZ) s 8; and provisions in a series of Reserves and Other Lands Disposal Acts dating from 1925, 1943 and 1946.
98 Most of them predate Padfield [1968] AC 997, and the remaining three are from the 1970s.
99 See, eg, Housing Restructuring and Tenancy Matters Act 1992 (NZ): s 104 (another agency now calculates income-related rents); s 75(2) (nothing affects the rights of Housing NZ as a landlord under the Residential Tenancies Act 1986 (NZ); and the omission of Housing NZ decisions from the scope of the new appeal right in s 132(1).
100 See Housing NZ [2008] NZAR 389, [34] (HC) for the history and rationale.
101 See, eg, Crown Research Institutes Act 1992 (NZ) s 44.
102 Unitec [2007] 1 NZLR 750 (CA).
103 Their decisions about students are frequently the subject of judicial review: see, eg, Battison v Melloy [2014] NZAR 927 (HC).
104 Education Act 1989 (NZ) s 157.
105 Social Workers Registration Act 2003 (NZ) ss 24, 88, 91.
106 See, eg, Insolvency (Personal Insolvency) Regulations 2007 (NZ) SR 2007/333, regs 10(2), 11(2), 53 are all subject to an appeal under the Insolvency Act 2006 (NZ) s 226; the power in the Resource Management Act (NZ) s 36AAB to waive additional fees is subject to objection (ss 357B and 357D) and then appeal (ss 358 and 290)—however, this does not apply to the power under the same section to waive standard fixed fees: confirmed in Haines v Tasman District Council (2009) 15 ELRNZ 182, [64].
107 Henderson [2015] NZHC 1341.
108 See Kacem v Bashir [2011] 2 NZLR 1 (SC).
109 See legislation cited at above nn 54–57.
110 See, eg, Sparks v Immigration Advisers Complaints and Disciplinary Tribunal [2017] NZHC 376 (8 March 2017) (‘Sparks).
111 Weathertight Homes Resolution Services Act 2006 (NZ) s 93; Immigration Advisers Licencing Act 2007 (NZ) s 49 (the appeal is limited to decisions imposing sanctions, as pointed out ibid [93]).
112 Chee v Stareast Investment Ltd (Unreported, HC Auckland, CIV-2009-404-5255, 1 April 2010), [70]; Hitex [2014] NZHC 475, [167]—both under the Weathertight Homes Resolution Services Act 2006. (NZ).
113 Sparks [2017] NZHC 376 (8 March 2017) [93]–[97], under the Immigration Advisers Licencing Act 2007 (NZ).
114 The position in relation to the Coroners Act 2006 (NZ) may be different, since the absolute discretion is conferred on the High Court reviewing the Coroner's interlocutory decision; but the point does not appear to have been considered yet.
115 See Singh (Kulbir) [2016] NZAR 93, [14] (CA); Nair [2016] NZAR 836, [37] (CA); Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190 (19 May 2017) [20], [40] (‘Fang’)—each relying on the preceding decision.
116 See part VI.
117 Insolvency (Personal Insolvency) Regulations 2007 (NZ) SR 2007/333, regs 10(2)), 11(2).
118 Insolvency Act 2006 (NZ) s 226.
119 Cf also Charter Holdings (2016) 27 NZTC 22 (CA), allowing an exclusive remedies clause to be undermined by a judicial review challenge to the exercise of a residual power.
120 Insolvency (Personal Insolvency) Regulations 2007 (NZ) SR 2007/333, reg 53; Lawyers and Conveyancers Act 2006 (NZ) ss 2–9 (concerning shortfalls in the fidelity funds).
121 Weathertight Homes Resolution Services Act 2006 (NZ) s 57; Immigration Advisers Licencing Act 2007 (NZ) s 49.
122 For instance, Resource Management Act 1991 (NZ) s 36AAB. Prior to 2014, the provision in the Housing Restructuring and Tenancy Matters Act 1992 (NZ) (then s 43) that corresponds to the current ss 72 and 92 was held to be subject to appeal: Housing NZ [2008] NZAR 389, [43] (HC). However, the current version of the appeal right does not provide for appeals from the decisions of the Housing NZ Corporation at all: see s 132(1).
123 Housing Restructuring and Tenancy Matters Act 1992 (NZ) ss 72, 92; many of the 27 ‘absolute discretion’ provisions in the Immigration Act 2009 (NZ) eg ss 17(3) or 72(3); the provisions for waiving all or parts of otherwise applicable charges, such as the Resource Management Act 1991 (NZ) s 36AAB in relation to standard charges (Legislation Advisory Committee, above n 3, part 15 classifies such waiver provision as exemption powers).
124 See, eg, Peter, Cane, Administrative Law (5th ed, Oxford University Press, 2011)Google Scholar ch 6.1; Robert, E Goodin, ‘Welfare, Rights and Discretion’ (1986) 6 Oxford Journal of Legal Studies 232Google Scholar.
125 For discussion of this need, see, eg, Housing NZ [2009] NZAR 313, [40]–[42] (CA); that this was the intention behind the provision is also confirmed by its history: see Housing NZ [2008] NZAR 389, [34] (HC).
126 Legislation Advisory Committee, above n 3, states that powers of exemption should be granted only for compelling reasons (part 14.1) and must specify appropriate safeguards such as setting out the criteria and the purpose, requiring reasons to be given, and specifying an expiry date (part 14.2).
127 This approach is relevant to the exceptional powers in the Immigration Act 2009 (NZ), discussed in detail in part VI below.
128 As seen, eg, in the Immigration Act 2009 (NZ) s 11.
129 Ibid.
130 Criminal Bar Association of New Zealand Inc v Attorney-General [2013] NZAR 1409; British Oxygen Co Ltd v Minister of Technology [1971] AC 610.
131 Housing NZ [2009] NZAR 313 (CA). The Court relied on the scheme and purpose of the Act rather than on the ‘absolute’ wording as the basis for considering the discretion to be exceptional.
132 For further discussion of the arguable duty to inquire in this context see Wilberg, above n 71, 205–6.
133 Board of Trustees of Phillipston School v Minister of Education [2013] NZHC 2641 (9 October 2013).
134 Education Act 1989 (NZ) s 157(3A); explained in Ministry of Education (NZ), Ed Act Update FS 13: Consultation with schools whose rolls might be affected by a closure or merger proposal afer an area strategy (26 September 2017) <https://www.education.govt.nz/assets/Documents/Ministry/Legislation/Ed-Act-Update-Factsheets/Ed-Act-Update-FS13-Consultation-with-schools-affected-by-closure-or-merger-proposal.pdf>.
135 Royal Society of New Zealand Act 1997 (NZ) s 15; Maori Community Development Act 1962 (NZ) s 15A.
136 As is the case for the Social Workers Registration Act 2003 (NZ) ss 24, 88.
137 West Coast Wind-blown Timber (Conservation Lands) Act 2014 (NZ) s 15.
138 Parts of the discussion in this part are based on Hanna, Wilberg ‘Administrative Law’ [2016] New Zealand Law Review 571, 601–9Google Scholar.
139 In particular, art 3 of the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘UNCROC’); and arts 17 and 23 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 151 (entered into force 23 March 1976) (‘ICCPR’).
140 Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA).
141 A ‘deportation liability notice’ is expressly not required for deportation on the grounds of being unlawfully in New Zealand: Immigration Act 2009 (NZ) ss 170(1), 170(2)(a). Ewebiyi v Parr (Unreported, HC Christchurch, CIV 2011-409-002010, Fogarty J, 7 December 2011) (‘Ewebiyi’) explained this as part of a ‘principle of personal responsibility for immigration status’, citing the s 14 obligation on immigrants to ensure that they are on a valid visa at all times: [28]–[29]. See also Nair [2016] NZAR 836, [19] (CA).
142 Immigration Act 2009 (NZ) s 154.
143 Immigration Act 2009 (NZ) ss 175(1)(c)(i), 178.
144 Fang [2017] NZCA 190 (19 May 2017), [55]–[57].
145 The qualifications codify a subset of the requirements that were read into the predecessor provision in Ye to address concerns that otherwise, many deportations would take place without any consideration of relevant international obligations: Ye v Minister of Immigration [2010] 1 NZLR 104, [13]–[29] (SC). The courts’ discussions of the legislative history of s 177 have often ignored this aspect, and been confined to the elements overruling Ye: see below n 146.
146 These parts of the section overturn significant further requirements that had been read into the provision in Ye v Minister of Immigration [2010] 1 NZLR 104 (SC), as noted in Singh (Kulbir) [2016] NZAR 93, [18]–[20] (CA); Nair [2016] NZAR 836, [34]–[36] (CA).
147 Wolf v Minister of Immigration [2004] NZAR 414, [65] (HC); and for the general point, see [47].
148 See Marcelo, Rodriguez Ferrere ‘An Impasse in New Zealand Administrative Law: How Did We Get Here?’ (2017) 28 Public Law Review (forthcoming)Google Scholar.
149 The one case that arguably applied heightened scrutiny is Pring v Wanganui District Council (1999) 5 ELRNZ 464, [7] (CA). High profile obiter dicta are found in Electoral Commission v Cameron [1997] 2 NZLR 421, 433 (CA); Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 (CA), 66; Conley v Hamilton City Council [2008] 1 NZLR 789 (CA).
150 Quake Outcasts v Minister of Canterbury Earthquake Recovery [2017] 3 NZLR 486, [73] (CA).
151 See also, in the related context of an appeal against deportation of a young offender, the minority position of Elias CJ in Helu v Immigration and Protection Tribunal [2016] 1 NZLR 298 (SC).
152 Ye v Minister of Immigration [2009] 2 NZLR 596, [303], [112] (CA).
153 Chambers and Robertson JJ considered the issue did not arise: ibid [569].
154 Huang Xiao Qiong v Minister of Immigration [2007] NZAR 163, [49]–[50] (HC).
155 Huang v Minister of Immigration [2009] 2 NZLR 700, 717 [67] (CA). It referred to Wolf only for the proposition that proportionality has less foundation in New Zealand than in the UK: [64].
156 Ye v Minister of Immigration [2010] 1 NZLR 104 (SC). The decision in Huang v Minister of Immigration [2010] 1 NZLR 135 (SC) simply refers to Ye for discussion of the law.
157 The position would be different if the appeal had been on some points only, excluding the intensity of review point and thus leaving the lower court decisions undisturbed on that point, but that was not the case here. The Court did agree with the Court of Appeal in both Ye and Huang, but only on the point that the relevant international law obligation made the children's interests ‘a’, not ‘the’, primary consideration: [24].
158 There, family life is a protected right under the Human Rights Act 1998 (UK) incorporating art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).
159 Singh (Kulbir) [2016] NZAR 93, [28]–[37], [42]–[50] (CA).
160 Despite the fact that Wild J authored both Wolf and this judgment. Instead, the New Zealand authority relied on by counsel was the dissenting view of Baragwanath J in Tamil X v Refugee Status Appeals Authority [2010] 2 NZLR 73 (CA), which the Court dismissed as not being part of the ratio: Singh (Kulbir) [2016] NZAR 93, [41] (CA).
161 Singh (Kulbir) [2016] NZAR 93, [64] (CA) and also implicit in [52].
162 Ibid [42].
163 Zhang [2016] NZAR 1222, [10] (see especially fn 7), [14], [23], [30]–[31] (CA).
164 See, eg, Dean [2017] NZHC 588 (29 March 2017), [60]; Devi [2017] NZHC 728 (23 April 2017), [15]–[16]; McKelvey [2017] NZHC 659 (6 April 2017), [34], [60].
165 Ning [2016] NZHC 697 (15 April 2016), [25]–[29].
166 Singh (Kulbir) v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZSC 39 (19 April 2016), [4]. I disclose that I assisted with the application for leave.
167 Balubal (Unreported, HC Auckland, CIV-2011-404-1773, 29 September 2011).
168 Ibid [24]–[41].
169 Ibid [27].
170 Ibid [29], [33], [36].
171 Ibid [27]–[36], [41]. The Court of Appeal's recent rejection of Balubal's position on the topic of part B below is not directly relevant to this point.
172 Citing New Zealand Fishing Industry Association v Minister of Agriculture & Fisheries [1988] 1 NZLR 544, 566 (CA) (‘NZ Fishing Industry Association’).
173 Singh (Kulbir) [2016] NZAR 93, [17], [50] (CA).
174 Ibid [58]–[62]. In Kaur v Ministry of Business, Innovation and Employment [2016] NZHC 872 (3 May 2016), [74], an application to cross-examine an immigration officer succeeded in one small respect, which was held not to go to the reasons for decision. However, the Court otherwise followed Singh (Kulbir) in rejecting cross-examination on other points: [82]–[83].
175 Fang v Ministry of Business, Innovation and Employment [2017] 3 NZLR 316, [62]–[63] (CA) (‘Fang’).
176 Ewebiyi (Unreported, HC Christchurch, CIV 2011-409-002010, Fogarty J, 7 December 2011).
177 Dong v Chief Executive of the Ministry of Business, Innovation and Employment [2016] 3 NZLR 357 (HC). See also Li v Ministry of Business Innovation and Employment [2016] NZHC 1788 (3 August 2016). Fang [2017] 3 NZLR 316, [31]–[35] (CA) also rejected the view taken in some cases that the Court of Appeal in Singh (Kulbir) had approved Balubal on this point.
178 Fang [2017] 3 NZLR 316, 328 [46]–[47], 332 [62]–[63] (CA).
179 Ibid [60].
180 Ewebiyi (Unreported, HC Christchurch, CIV 2011-409-002010, Fogarty J, 7 December 2011), [46], [57].
181 Fang [2017] 3 NZLR 316, [47], [63] (CA).
182 Ibid [72], [75]–[76].
183 Balubal (Unreported, HC Auckland, CIV-2011-404-1773, 29 September 2011).
184 Leung [2013] NZHC 1158 (17 May 2013), [13]–[15]; Zheng v The Chief Executive of the Ministry of Business, Innovation and Employment [2013] NZHC 1257 (29 May 2013), [10].
185 Balubal (Unreported, HC Auckland, CIV-2011-404-1773, 29 September 2011). [74]. See also [27]–[41].
186 Fang v Ministry of Business, Innovation and Employment [2015] NZHC 2059 (28 August 2015), [30]–[31].
187 Fang [2017] 3 NZLR 316 [74]–[75], (CA).
188 Cao [2014] NZAR 871 (HC).
189 Zhang [2016] NZAR 1222 (CA).
190 Cao [2014] NZAR 871 (HC). [37]. See also [23].
191 Ibid [20]–[37].
192 Zhang [2016] NZAR 1222, [25], [27] (CA).
193 Ibid [26]. This was followed in McKelvey v Minister of Immigration [2017] NZHC 430 (14 March 2017).
194 Ibid [23], [26]. This argument had been put to the High Court ([6]) and had by implication been rejected when discovery was ordered: [38].
195 Ibid [30]–[31].
196 Singh (Kulbir) [2016] NZAR 93, [55] (CA).
197 See Zhang [2016] NZAR 1222, [37], fn 16 (CA).
198 Ririnui [2016] 1 NZLR 1056, [105] (SC); Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1032–3; Fiordland Venison Ltd v Minister of Agriculture [1978] 2 NZLR 341, 346, 354 (CA); NZ Fishing Industry Association [1988] 1 NZLR 544, 554 (CA). The last two cases illustrate that the inferences may also happen to be favourable, depending on the evidence. That was also seen in the immigration context in Pesamino v Minister of Immigration [2012] NZHC 4 (19 January 2012), [23].
199 Ning [2016] NZHC 697 (15 April 2016), [46].
200 Nair v Chief Executive of Ministry of Business, Innovation and Employment [2016] NZHC 345, [37]–[40].
201 Chief Executive of Ministry of Business, Innovation and Employment v Nair [2016] NZAR 836 (CA).
202 For instance, the earliest use of the concept of a ‘legitimate expectation’ was in the immigration context, where such an expectation gave rise to a right to a hearing which the immigrant would otherwise not have had: Schmidt v Secretary of State for the Home Department Affairs [1969] 2 Ch 149 (CA).
203 See, eg, Daganayasi v Minster of Immigration [1980] 2 NZLR 130 (CA).
204 Zhang [2016] NZAR 1222 (CA), [38]. See also Yure v Bentley [2002] NZHC 8, [11]. It seems instructive to compare the muted judicial response to the clearly problematic provisions in the Immigration Act with a line of cases about the exclusive remedies clause in the tax legislation. While the Supreme Court in Tannadyce Investments Ltd v Commissioner of Inland Revenue [2012] 2 NZLR 153 (SC) respected that clause, several subsequent decisions such as Charter Holdings Charter Holdings Ltd v Commissioner of Inland Revenue (2016) 27 NZTC 22 (CA) appear to undermine that position. The contrast may owe something to a lingering idea that tax decisions, unlike decisions on deportation of unlawful immigrants, affect vested legal rights and interests.
