Should judicial review be available in the widget case? 

In Bayline it was held that for a decision of a public authority to be amenable to judicial review there had to be some wider policy content in the decision . There was 1

no such content in the choice between two bus services . Superficially, the decision to 2

choose supplier B over supplier C of widgets is the same. However, in William Young J’s widget example there is the added element of actual corruption, which would, in my opinion, have pushed Bayline over the line. However, William Young J argues that the widget example is different because SOEs are supposed to perform as comparable businesses not owned by the government . 3

I argue that this is not a strong enough reason to hold that “quintessentially... low level contracting decision[s]” are not amendable to judicial review, especially not 4

where there is actual corruption. Firstly, I will argue from constitutional values. Secondly, I will argue that judicial review is a superior tool than criminal or civil actions. Thirdly, I will argue that only judicial review can properly address the wrong done to third party tenderers. Finally, I will conclude by addressing William Young’s J ‘gaming’ concerns. 5

Why judicial review is required by constitutional values

The existence of corruption is a stain on the integrity of public decision making. It is a harm in itself which needs redress. Integrity in public decision making is a crucial element of the rule of law because the rule of law requires people to have faith in the system . It is the responsibility of the High Court to use its supervisory jurisdiction in 6

judicial review to uphold the rule of law and therefore, by extension, to ensure the 7

integrity of public decision making and preserve public confidence in the legal system. 

Furthermore, the centrality of the rule of law in our legal system requires its value to be constantly affirmed. This is achieved is by signalling the importance of the rule of

Bayline Group v Secretary of Education [2007] NZAR 7471

Ibid. at [30]2

Ririnui v Landcorp Farming Ltd [2016] NZSC 62 per William Young J at [214]3

Bayline at [30]4

Ririnui at [214]5

For similar themes and arguments see Tannadyce Investments v Commissioner of Inland Revenue [2011] 6

NZSC 158 at [32]

See the following for oblique references: Tannadyce at [70], Interpharma (NZ) v Commissioner of Patents 7

[2012] NZAR 222 at [63] to [65], Zaoui v Attorney-General (No. 2) [2005] 1 NZLR 691 at [16]

the law to both those who are subject to public decisions—the public—and to those who wield that power—the Government, the Executive, and the administrative arms of the state. In the absence of a signal affirming the value of the rule of law a negative signal is sent regarding the importance of the rule of law. Additionally, the availability of judicial review provides a further disincentive for public decision makers to misuse power. 

Finally, the scope and availability of judicial review needs to keep pace with an ever expanding administrative state in order to maintain effective restraints on the use of public power. Denying the availability of judicial review allows public authorities to take a step away from the supervisory eye of the courts. This increases the likelihood of power being abused. The High Court should take every opportunity it can to flex its muscles lest they atrophy and be too weak for when it is not just an issue of this widget or that. 

Why judicial review is superior to criminal and civil actions

Corruption is inefficient and is as such inconsistent with the founding purposes behind SOEs. That both criminal and civil actions are available to address it is good, however, judicial review is a better tool for addressing what is best understood as an administrative wrong rather than a criminal or civil wrong. Firstly, because the widget example is a case where the wrong is committed by a person in their capacity as an official of the administrative state and in the course of making a public decision, albeit a quintessentially low level contracting decision; there's a certain aesthetic appropriateness in channelling such a case through judicial process custom built for administrative issues. Secondly, the High Court in judicial review is incredibly well equipped to analyse these situations and identify the wrongs specific to public decision making. 

How judicial review addresses harm to third parties

Even assuming the criminal and civil proceedings were effective at upholding the rule of law and conveying the right messages, judicial review would still perform an important function that neither of the other two do.

Criminal actions are taken by the state against parties that commit offences against the state or the law itself. A successful action in criminal law vindicates a wrong committed against the law. Additionally, a civil action in fraud in the widget example would correct a wrong against the state in the form of the SOE. In neither proceeding is the wrong against C addressed. In judicial review it would be. 

Because of the modern liberal approach to standing , an action in judicial review 8

could readily be brought by C. The High Court can make a number of orders ranging from directing the decision to be made again, to quashing the decision, to simply making a declaration of its defects. Even if only a declaration were granted there is potential symbolic value to be gained by litigants in C's position. Even if C themselves

CMP v Director General of Social Services and Putland [1997] NZFLR 1 at CM 48

didn't put any stock in this symbolic value, that is no reason to deny it to other litigants who would.

Addressing William Young J’s ‘gaming’ concerns

William Young J's concerns about firms gaming litigation, while legitimate, is less of a worry than he thinks and is not outweighed by the value added to the rule of law by the availability of judicial review. Firstly, as he notes, the grounds for judicial review against SOE's can be limited to the Mercury Energy grounds. Secondly, the courts 9

have always been sensitive to actions which lack substance and can be dealt with in strike out applications. Even if the number of applications for judicial review increases it will not be overwhelming, and there are good reasons (those explored above) to allow them.

Conclusion

Corruption is a real harm which the High Court in its constitutional role should be weeding out as often as possible. Interventions by the High Court send strong messages about the value of the rule of law. Judicial review is a superior tool to deal with administrative wrongs and has the capacity to address wrongs done to third parties. For these reasons it should be available in the widget example.

Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 395 9