Judicial review and constitutional balance

The Rt Hon Dame Sian Elias, Chief Justice of New Zealand, gave an address to a gathering at Te Herenga Waka—Victoria University of Wellington on the topic of ‘Judicial review and constitutional balance’. Excerpts from the conclusion of her speech follow.

“Public law today occupies a space that until comparatively recently was the province of constitutional law only. Until 1940 there was no such subject as ‘administrative law’ taught in New Zealand law schools. The judges and the profession considered that there was ‘really no such special branch of the law’ and that if distinct from general law, at most it was but an aspect of constitutional law.”

Dame Elias noted that Sir Michael Myers, as Chief Justice, eventually acquiesced in the inclusion in the curriculum for the LLB degree of what he said ‘the law professors are pleased to call “administrative law”’.

She made two comments about the extent to which we have moved on from this Diceyan complacency. First, it struck her as ironic that the procedure of judicial review, which preceded the development of modern administrative law, seems today to be so closely associated with it that we have forgotten its older provenance and the extent to which it is available to ensure observance of law, including in relation to areas generally thought of today as private law.

Secondly, she observed that administrative law seems largely to have eclipsed constitutional law. “In a constitutional setting like ours, that means that there is a risk that in judicial review we start too often in the middle, instead of at the beginning with what is foundational in the legal order.”

Dame Elias sees signs of some repositioning. “Although in 1960 Professor De Smith thought that constitutional law and administrative law occupied ‘distinct provinces’ if also ‘a substantial area of common ground’, the latest editions of his text have suggested more convergence as the emphasis on ultra vires as the foundation of judicial review has waned.”

In Dame Elias’s view, the supervisory jurisdiction may be best understood as constitutional review, “which is observed by public and private actors alike if they have power to affect the rights or interests of others. Judicial review to ensure that such power is not abused does not weaken but strengthens good administration and the rule of law.”

Dame Elias related Felix Frankfurter’s warning against ‘an undue quest for certainty’ in relation to administrative law. “Sir David Williams suggested that, in the long term, the courts would help in the development of a more ordered legal system if they intervened ‘where intervention is constitutionally desirable’.”

According to Dame Elias, that approach does not lend itself to tests and bright lines. “If it encourages a better constitutional sense, Mr Pickles, and Jaws, and all who exercise power over others, may yet join administrators and officials under the rule of law.”

Read Rt Hon Dame Sian Elias's full address.