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Administrative law for decision-makers

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Tony Dellow

on 26 August 2014

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Transcript of Administrative law for decision-makers

Grounds for review
Don't just comply with the administrative law obligations, state them and say that you have complied.

Administrative law for decision-makers
Strong decisions
State you comply
Tony Dellow
Diana Thomas

What is administrative law?
Administrative law principles:
apply to public decision-making
form the grounds for judicial review of a decision or appeal on a question of law.
What decisions are reviewable?
Decisions of public actors (eg. the Electricity Authority) are generally reviewable, as a matter of jurisdiction, but the courts may rule that particular decisions are not justiciable.
Decisions of private actors may be reviewable if those decisions can be regarded as public functions or have significant public consequences.
Motivated by an improper purpose
Acting ultra vires
Errors of fact or law
Taking into account irrelevant considerations
Failing to make a decision and exercise discretion:
rigid application of a predetermined policy/closed mind
acting under dictation from another
invalid delegation
Powers of the Authority
Powers of a natural person - so Authority can do all things a natural person can do.
Authority must exercise the powers it has in pursuit of its objectives/functions
- promote competition in, reliable supply by, and the efficient operation of, the electricity industry for the long-term benefit of consumers (section 15)
Meet natural justice obligations/right to be heard
Avoid bias/prejudice/predetermination
Meet legitimate expectations
Design process to comply with basic standards for consultation established by case law.
No universal requirements as to form of consultation, but must:
allow adequate expression and consideration of views
allow a sufficient time
make a genuine effort
make available sufficient information to enable parties who are consulted to be adequately informed so as to be able to make intelligent and useful responses.
Consultation does not require agreement, although it does require more than mere telling or presenting.
Approach consultation with an open mind, and be prepared to change or even start the process afresh.
Real benefits of consultation
Provides Authority with all information available to make best decision
Provides Authority with notice of consultees' views on procedural defects (then they can be corrected)
Exposes consultees to the views of other affected parties
Draws potential challengers into the process
Prevents a successful challenge on the basis of inadequate consultation
Contact Energy Limited and Meridian Energy Limited v Electricity Commission and others, August 2005
Meridian and Contact alleged that the Commission breached its consultation obligations in developing guidelines on the TPM
Challenge related to the difference between the proposed guidelines in the issues paper and the final form of the guidelines
- proposed guidelines would have resulted in HVDC charges being borne by users in the same way as HVAC charges

- finalised guidelines meant that charges for the existing HVDC link would be charged to existing South Island generators
Court held that the Commission had not fulfilled its obligation to consult
- Contact and Meridian were not adequately informed of what options were "on the table"

- Tight timetable and heavy workload should not deprive the applicants of proper consultation
The Court set aside the guidelines so far as they related to the HVDC charge, and the Commission was directed to reconsider the guidelines and consult further
Wednesbury unreasonableness
- so absurd that no sensible person could dream that it lay within the powers of the Authority

- so perverse, absurd or outrageous in defiance of logic that Parliament could not have contemplated such a decision being made/beyond the limits of reason.
The Court's role is not to substitute its own view for the decision-maker's view
Court rarely makes findings of unreasonableness on its own
Cover off doubtful legalities
Close off review where there are matters of doubtful legality.
"The Commission considers that it is prevented from considering a relocation of the Whirinaki Plant as an alternative project under clause 19. This is because neither the Commission nor Transpower has any power to determine the location of the plant. This conclusion is consistent with clause 89 of the GPS. However, the Commission records that this is the view it would take even in the absence of that clause.
Consultation is not a right it's a weapon
Relief is discretionary
Traditional and creative remedies
Other possible avenues for challenge:
Office of the Auditor-General
media/public opinion
appeal (in some cases)
Declaratory Judgments Acts 1908
Intensity of review varies
Factors to determine justiciability include:
- effect on public/individual
- statutory scheme
- degree of policy/judgement/expertise involved
- availability of other remedies
Consultation can be used to disarm potential opponents to a decision

Multiple rounds of consultation can exhaust an opponent

"The Minister was correctly advised by his Ministry:
"In exercising your discretion under the Act, you must comply with the principles of administrative law relating to the exercise of statutory powers of decision. That is, you must act according to law, fairly and reasonably. You must also have regard to relevant factors and disregard irrelevant factors. You are required to exercise your power yourself and not act under the direction of any other person".
His affidavit and its extensive exhibits demonstrates satisfactorily that he acted in accordance with that advice."

Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd
Appeals on questions of law
Section 64 of the Electricity Industry Act allows appeals on questions of law.
Ancare N Ltd v Wyeth (NZ) Ltd (2009): Related to withholding of key information.
"Wyeth alleges that ERMA's approach is erroneous as a matter of law and permeated its decision-making, giving rise to a fundamental breach of the rules of natural justice."
"We see no reason why this issue should not be raised by way of an appeal on a point of law...rather than by way of judicial review proceedings. If there has been a breach of natural justice, the substantive decision will be tainted by illegality.
Electricity Commission reasons for decision, NIGU Proposal
18 June 2013
Full transcript