Fundamental to New Zealand's political system is the courts' supervisory function over the exercise of public power by public bodies. This is the basis for judicial review which allows an aggrieved citizen to challenge an abuse of public power. Also fundamental to the political system is the concept of separation of powers. Certain decisions are best made by elected politicians following democratic processes - not judges, who have no electoral mandate and are not subject to the same scrutiny in the electoral system.

Unfortunately, sometimes there is a tension between these two concepts. A recent example of this is the High Court decision of Curtis v The Minister of Defence. Mr Curtis sought a declaration that the actions of the Minister in disbanding the air combat force were invalid. The Court refused to intervene, in part because the decision was one involving questions of 'high policy' or had a largely political character. The Court relied on a previous summary of this principle by the Court of Appeal:

"The willingness of the Courts to interfere with the exercise of discretionary decisions must be affected by the nature and subject of the matter of the decision in question and by consideration of the constitutional role of the body entrusted by statute with the exercise of the power. Thus, the larger the policy content and the more the decision making is within the customary sphere of elected representatives the less well equipped the Courts are to weigh the considerations involved and the less inclined they must be to intervene."

Of course the reluctance to intervene does not mean the courts will not step in if the decision of the public body is patently illegal or perverse. There is some similarity between the decision in Curtis and the courts' reluctance to intervene in the local government rates-setting cases. In those cases the courts were unwilling to usurp the exercise of political judgments by the elected representatives of the community, except where those judgments were fundamentally absurd or perverse.

This article is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely
on this article.

Copyright Phillips Fox, December 2001

For more details, contact the author: Dean Knight
Email:dean.knight@phillipsfox.com

Web site: Phillips Fox