Chapter 2
Judicial review

The future of the Judicature Amendment Act 1972

2.4The 1972 Amendment Act is an unusual amending statute in that it must be read together with, and is deemed part of, the Judicature Act 1908,18  but it stands alongside the principal Act.

2.5If, as we recommend, the Judicature Act 1908 is repealed, then the issue arises as to what should happen to the 1972 Amendment Act.

2.6As a review of the substance of the 1972 Amendment Act is outside the scope of the Commission’s review of the 1908 Act, we initially considered whether a draft judicial review bill could simply re-enact the existing provisions of the 1972 Amendment Act under a different name. However, Parliamentary Counsel advised that the 1972 Amendment Act could not sensibly be re-enacted in its current form, either as a standalone statute, or as a part of another Act, as the drafting would need to be updated to reflect the modern drafting style. We therefore suggested in Issues Paper 29 that the 1972 Amendment Act be redrafted to update the language (but not alter the substance) of the 1972 Amendment Act, and enacted as a standalone statute.19
2.7A draft Judicial Review (Statutory Powers) Procedure Bill (draft Bill) was prepared by Parliamentary Counsel on an exploratory basis and included in Issues Paper 29.20  The draft Bill is also included in this Report as Appendix 3.

Views of submitters

2.8Submissions on whether there should be a standalone bill for judicial review were mixed.

2.9The New Zealand Bar Association supported the Commission’s proposal for a stand-alone judicial review bill, on the basis that no substantive change is effected. It had several suggestions for improvements it considered could be made to the draft Bill to help achieve this goal, which are discussed later in this chapter.

2.10The New Zealand Law Society was not able to come to a unanimous view. It said some members favoured simply re-enacting the 1972 Amendment Act unchanged, as they were concerned about any unforeseen and undesirable consequences in reordering, modernising and collapsing several of the provisions. Other members agreed with our approach. As some put it, if one was demolishing and rebuilding a 1972 house in the exact same style, it would be rebuilt according to modern standards, not those in place in 1972. Various amendments were suggested to support the aim of not altering the intention or effect of the former Act. Again, these are discussed later in this chapter.

2.11The Senior Courts’ judges did not agree with our proposal for a redrafted standalone Act. They took the view that the 1972 Amendment Act itself should be re-enacted as a standalone Act, “at least until some thorough-going review [of judicial review] can be attempted”.

2.12The Department of Labour said it supported the development of a standalone Bill, but was concerned to ensure that the Employment Court’s exclusive jurisdiction was not unintentionally limited.

2.13An individual submitter and law firm Duncan Cotterill also agreed there should be a standalone Judicial Review Bill.

Commission’s view

2.14In order to leave the 1972 Amendment Act untouched, new courts legislation would need to either repeal most, but not all, of the 1908 Act, for example by leaving the commercial provisions in situ, or repeal the 1908 Act and contain a provision specifically preserving the 1972 Amendment Act , and possibly renaming it. We do not favour these options, as they would not enhance the accessibility of the 1972 Amendment Act provisions.

2.15Instead, the Commission favours the enactment of a new standalone statute drafted in the modern style, but substantively the same as the 1972 Amendment Act. In our view, the subject of judicial review is so important in our governance system that it merits its own statute, even though in terms it applies only to the High Court of New Zealand.

2.16Alternatively, while the provisions of the 1972 Amendment Act would sit awkwardly in a unitary courts statute, as the judicial review powers would not be exercised by the District Courts, if a decision was made to have a new Senior Courts Act and a District Courts Act, then the substance of the 1972 Amendment Act could be incorporated in the Senior Courts Act, as a separate Part.

18Judicature Amendment Act 1972, s 1.
19Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at [1.16]-[1.20].
20At appendix 1.