4.19 “Judicial review” is the review by a judge of the High Court of any exercise of, or non-exercise of, a decision-making power in order to determine whether or not the decision was lawful or valid. Most formal decisions taken by the executive arm of government (including Ministers), and the process by which they are reached, can be reviewed by a court. Ordinarily, a power that is the subject of review proceedings will be one that has been conferred on the decision-maker by statute.
4.20 On occasion, the courts will review the exercise of other public powers. In principle, all exercises of public power are reviewable, whether the relevant power is derived from statute, the royal prerogative, or any other source. However, the courts acknowledge that some exercises of public power are not suitable for judicial review because of their subject matter. The courts would be most unlikely to intervene in decisions about policy formation by the government of the day or involving political or fiscal considerations.
4.21This does not mean that any decision having a policy context will be inappropriate for review if the Court considers some principle of public law decision-making has been breached. In addition, even if not appropriate for judicial review, a policy decision may be open to challenge in another forum, such as the Waitangi Tribunal.
- has the decision-maker acted within the scope of the power or discretion conferred?
- has the decision-maker acted reasonably and fairly?
The courts are primarily concerned with the process of decision-making rather than the outcome or merits of the decision.
- acted outside the scope of the power or discretion;
- misinterpreted the applicable law;
- did not make up his or her own mind on the matter that he or she was called on by law to determine (acted “under dictation”);
- took into account irrelevant considerations;
- failed to take account of relevant considerations; or
- did not act “fairly” in that he or she failed to hear from or consult with persons or groups who would be affected by, or otherwise had an interest in, the particular decision.
4.24 Generally, a decision will have been made following advice from officials, which is likely to touch on many of the above matters, and often those officials will be the key witnesses in judicial review proceedings. Where the Minister is required to make the final decision, however, the court will regard the Minister as the person who is ultimately responsible for ensuring that the decision is made reasonably, fairly, and according to law.
4.25 Referring any matter to Cabinet or a Cabinet committee when the Minister is acting under statutory authority must be handled carefully so that it is clear that the Minister is not asking Cabinet to make the decision. Paragraphs 5.34 – 5.38 contain detailed guidance about statutory decision-making in the collective context.
4.26 In almost all cases, litigants are given court-authorised access to the departmental papers on which decisions are taken (through the process of discovery). Officials should therefore prepare all submissions to Cabinet and Cabinet committees and any other policy advice assuming that the papers could be made public. The policy elements of a decision should be made clear. Inappropriate editorial comment, unnecessary subjective views, and other irrelevancies should be avoided in case they may be taken out of context in a way that would detract from an otherwise proper decision-making process. Similarly, Ministers should themselves ensure that any written comments they make—either on advice prepared for them by officials (including marginal notes) or on their own account—would be regarded as appropriate if later made public through court proceedings.
4.27 Requests to produce Cabinet or departmental papers to a court or other quasi-judicial body, or to give evidence in court or to another quasi-judicial body on official matters, usually take the form of a formal notice or order in existing proceedings. These documents are unlikely to be received by Ministers directly, as the Crown Law Office is generally authorised to accept service on a Minister's behalf.
4.28 Any Minister who receives such a request should refer it to the Attorney-General, who may consult the Solicitor-General on the question of whether public-interest immunity should be claimed. Public interest immunity is a term that applies to the protection of official information from disclosure where its disclosure would be injurious to the public interest (see paragraph 8.87).
4.30If a Minister or government department considers that it is necessary to release any documents containing legal advice provided to the government, approval must first be obtained from the Attorney-General, through the Crown Law Office. This principle applies to documents containing legal advice from the Crown Law Office, internal legal advisers, or lawyers in private practice. See the guidance on legal and professional privilege in paragraphs 4.62 – 4.73.
4.31In judicial review proceedings, the Court of Appeal has indicated that an affidavit from the relevant Minister may be desirable to ensure that the court has reliable evidence of the reasons why the Minister acted in a particular way. Cross-examination on an affidavit made by a Minister is unlikely to be permitted unless the court concludes that cross-examination is necessary to allow the case to be disposed of fairly. Cross-examination is unlikely to be ordered if:
- the chain of documents culminating in a decision is sufficiently complete; and
- the Minister's affidavit addresses the matters raised in the case.
4.32 The practice of limiting cross-examination reflects a balance between two competing objectives. The first is to ensure that the courts are able to discharge their functions properly. The second is to preserve the relationship of mutual respect and deference between the branches of government, acknowledging that the first call on a Minister's time must be the House and the duties of executive office. Similar considerations arise when considering requests for Ministers to appear before other quasi-judicial forums.
4.34 In certain circumstances, the Speaker may issue a certificate exempting any member of Parliament from attendance at court in answer to a summons to attend as a party or witness in a civil proceeding, or as a witness in a criminal proceeding. The Speaker's power to issue such a certificate arises under the Parliamentary Privilege Act 2014. Additionally, where a Minister is unable to give any relevant and admissible evidence in the proceedings for which the witness summons has been issued, an application can be made to the court to have the summons set aside. In either event, the Crown Law Office will help the Minister make the necessary applications.
4.35 The Crown Law Office is authorised to accept service of all court documents relating to proceedings where Ministers are parties in their ministerial capacity. This authority does not extend to documents such as witness summonses, which require personal service.
Indemnity of Minister as a defendant
4.36 The guidance in paragraphs 4.37 – 4.57 sets out the process for indemnifying Ministers for legal costs incurred in the course of legal proceedings brought against them in their capacity as Ministers. References to Ministers in this guidance also apply to former Ministers, including those of previous governments.
Proceedings concerning the exercise of ministerial powers
4.37 Ministers may be named as defendants in court proceedings, almost always in relation to the exercise of their ministerial powers. Most proceedings will be by way of judicial review, which generally involves a legal challenge to the way in which a particular (usually statutory) power has been exercised (see paragraphs 4.19 – 4.26).
4.38 Ministers would not be at risk of judicial review proceedings at all if it were not for their official position. It is a convention of government, therefore, that Ministers should be indemnified by the Crown for any actions taken against them for things done or decisions made in the course of their ministerial duties. The indemnity will cover the cost of defending the proceedings, and any costs or damages awarded against the Minister (in all but exceptional cases—see paragraph 4.55).
4.39 On occasion, Ministers may be sued for acts done while a Minister, but having a more “personal” aspect. For example, a Minister may be sued in defamation arising from the contents of a particular speech or other public statement. Or proceedings may be instituted alleging that a Minister has acted dishonestly or in bad faith. The extent to which a Minister will be personally liable will depend on the law relating to the particular matter.
4.40 By their very nature, cases against a Minister personally raise issues about whether the Minister has acted so far beyond the scope of his or her authority that the Minister should not be indemnified by the Crown in relation to the proceedings. No absolute legal right to indemnity by the Crown exists just because a Minister was acting as a Minister in doing, or refraining from doing, the act that is the subject of the claim.
4.41 Where a Minister is sued or threatened with legal action personally and it is uncertain whether he or she should be indemnified, the normal arrangement is to seek Cabinet’s agreement in advance to meet the expenses of legal representation. The question of indemnity on costs and damages will be held over until judgment has been given (see paragraphs 4.53 – 4.56).
4.43 Ministers may be indemnified by the Crown for actions other than legal proceedings taken against them for things done or decisions made in the course of their ministerial duties, for example where the Minister is the subject of a formal inquiry and requires legal advice and representation. There is no absolute right to indemnity in such circumstances. The steps set out in paragraphs 4.44 – 4.57 should also be followed in these circumstances.
4.44 Where a Minister is sued personally about a matter that he or she regards as government business, the Minister must, on service of the proceedings, discuss them promptly with the Prime Minister and the Attorney-General (who will usually consult the Solicitor-General). The Attorney-General will form a view on whether or not the matter arose from the Minister’s duties.
4.45 If the Attorney-General forms the view that the matter arose from the Minister’s duties, the Attorney-General should consult the Prime Minister and the Minister of Finance and submit a paper to Cabinet seeking a decision on whether or not to indemnify the Minister’s expenses. The Attorney-General should also advise the Secretary of the Cabinet of his or her intention to seek a Cabinet decision.
4.46 The Cabinet paper should note that the Attorney-General is satisfied that the matter has arisen as a consequence of the Minister carrying out his or her ministerial duties. It should seek a decision from Cabinet on whether the Crown will:
- undertake the defence of the proceedings, that is, treat it as an ordinary action against the Crown (this will usually be the case for judicial review proceedings); or
- if the proceedings are against the Minister personally, such as defamation proceedings, meet the Minister’s costs in retaining private counsel (for example, to obtain preliminary advice on the situation or to undertake the defence of the proceedings); or
- leave the Minister to handle the case privately as a personal expense.
4.47 The Cabinet paper should seek Cabinet’s agreement to the Vote and appropriation from which the expenses would be met. It may, if necessary, seek a Cabinet decision on whether or not it would be appropriate, given the circumstances, to indemnify the Minister against an award of costs or damages, or whether to defer this decision pending the outcome of the proceedings (see paragraphs 4.41 and 4.53 – 4.56). The Minister concerned usually withdraws from the Cabinet meeting.
4.48 The Cabinet paper should recognise that the statutory decision whether to give an indemnity in such a situation must be taken by the Minister of Finance under section 65ZD of the Public Finance Act 1989.
4.49 If any doubt exists about the capacity in which the Minister is defending legal proceedings (that is, whether the proceedings are against the Minister personally or not), the case should be dealt with according to the guidance in paragraph 4.46(b) or 4.46(c).
4.50 Where Cabinet decides that the Crown will undertake the defence (see paragraph 4.46(a)), the papers must be referred to the Crown Law Office. The Crown Law Office’s costs in defending the proceedings will usually be charged to the relevant Vote.
4.51 If Cabinet has agreed that the Crown will meet the Minister’s costs in retaining private counsel (see paragraph 4.46(b)), the choice of counsel is made by the Minister only after consultation with the Attorney-General (who will usually consult the Solicitor-General). Once that choice has been made, the practice is for the Solicitor-General to retain counsel and to settle the basis on which the fees will be charged.
4.52 Once the Solicitor-General has retained private counsel to act for the Minister, the Minister should refer bills for legal expenses to the Crown Law Office for certification before the bills are paid. If private counsel was engaged by a Minister before the matter had been referred to Cabinet, the bill should be promptly referred to the Attorney-General who will, if necessary, refer it to Cabinet for a decision on payment. Counsel’s bills for legal expenses will be charged against the relevant Vote and appropriation (as determined by Cabinet—see paragraph 4.47).
Payment of costs or damages awarded
4.53 Where a Minister defends proceedings concerning the exercise of ministerial powers (such as judicial review proceedings), the Minister will usually be indemnified against any award of costs or damages (except in exceptional cases—see paragraph 4.55).
4.54 Where proceedings have been taken personally against a Minister, Cabinet will usually defer the issue of an indemnity on costs or damages until after the trial, at which point Cabinet will decide the issue on the advice of the Attorney-General or the Solicitor-General.
4.55 The decision as to whether a Minister should be indemnified against costs or damages will usually depend on the extent to which the costs or damages awarded against the Minister might be said to arise from the Minister’s personal wrongdoing or impropriety. The Attorney-General may defer such a decision until judgment has been given. For example, in a defamation case, if a court finds that a particular Minister had made the statement complained of dishonestly or maliciously, Cabinet may consider that the Minister’s words went beyond the bounds of duty, for it is no part of a Minister’s duty to act for malicious reasons. Malice in a legal sense, and in broad terms, means for a dishonest or improper motive. Other exceptional cases may also lead Cabinet to decline to authorise the indemnification of the Minister.
4.56 If Cabinet agrees that the Minister should be indemnified against an award of costs and/or damages made against the Minister, those costs may be charged to the relevant Vote and appropriation, as determined by Cabinet.
4.57 If a Minister has been represented at the expense of the Crown and costs or damages are awarded in the Minister’s favour, then they should be regarded as public funds and paid into a Crown or departmental bank account, unless Cabinet directs otherwise.
4.58 A Minister may contemplate taking a suit as a plaintiff in a personal capacity to uphold his or her integrity as a Minister, for example, in a defamation suit. In such a case, the Minister may wish to be indemnified against the costs of the proceedings. Paragraphs 4.36 – 4.57 do not apply in these circumstances.
4.59 Any intention to take proceedings as a plaintiff must first be discussed with the Prime Minister and the Attorney-General (who will usually consult the Solicitor-General). The Attorney-General will then ask Cabinet to agree that the matter be investigated by the Solicitor-General or by private counsel to determine whether it would be in the public interest for the Minister to take a personal action in the courts at the Crown's expense to resolve the matter. An opinion on the merits of the claim, prepared either by the Solicitor-General or private counsel, will be provided to the Attorney-General, together with the Solicitor-General's views on the public interest aspect. On the basis of this advice, the Attorney-General may seek Cabinet's authorisation for the Minister to pursue the claim at the Crown's expense.
4.61If a Minister is successful as a plaintiff in proceedings that have been funded by the Crown, any costs or damages awarded should be paid into a Crown or departmental bank account unless Cabinet directs otherwise (for example, where the Crown has contributed only part of the Minister's costs).