Editor's Preface

Hanna Wilberg

In publishing his “last word on this subject”, I am fairly certain that Mike Taggart — far from wishing to “stem the torrent of discussion on this topic”1 — wished not only to contribute to the discussion, but to stimulate further debate. His ability to do just that had, after all, been one of the hallmarks of his remarkable academic career.

This particular article had a long genesis and had already been discussed and debated at a string of seminars, but still it was not to be an endpoint but a springboard. The first rejoinder “Against Bifurcation” came swiftly, in the contribution of Mike’s good friend Murray Hunt to the Festschrift for Mike...

Proportionality — A Proportionate Response to an Emerging Crisis in Canadian Judicial Review Law?

David Mullan

This article examines Professor Mike Taggart’s contention in his article “Proportionality, Deference, Wednesbury” that lack of proportionality should not become an at-large ground of review in New Zealand judicial review law but should be confined to situations where administrative decision-making engages the rights protected by the New Zealand Bill of Rights Act 1990 and other fundamental rights. From a Canadian perspective, proportionality is proposed as one vehicle for the evolution of greater specificity in the conduct of unreasonableness review especially in the context of the exercise of discretionary power.

In contrast to Taggart, who fears the open-endedness and intrusiveness of proportionality as a general organising principle of judicial review in New Zealand, this article points out the potential for proportionality to provide structure to unreasonableness review, now the remaining deferential standard of review in Canadian judicial review law.

Without the discipline provided by closer and context-sensitive elaboration of the indicia of unreasonableness, there is an equal if not more dangerous threat than that presented by proportionality review to appropriate levels of deference in the relationship between the courts and administrative decision-makers. In this context, the problems that Taggart associates with proportionality review can be minimised by focusing on a structured approach to the discernment of proportionality as well as the careful delineation of particular situations that call for a proportionality response from the courts. Subject to that form of discipline, proportionality need not be confined to situations where constitutionalised and other fundamental rights and freedoms are in play.

Proportionality, Rationality and Review

Paul Craig

This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review.

The article begins by addressing the advantages of proportionality as a head of review. The argument then shifts to consideration of Mike Taggart’s preferred position of proportionality for rights-based cases combined with low intensity review for other administrative law challenges. It is argued that this position does not cohere with positive law, and that it is not desirable in normative terms. The remainder of the article is premised on the assumption that rationality is accorded a broader meaning. I address various objections to proportionality becoming a general head of review, and contend that these arguments are mistaken or misplaced.

Problems for Proportionality

Tom Hickman

Proportionality: A Halfway House

Jeff King

Some prominent judges and commentators argue that a proportionality test should serve as a general head of review in administrative law. This article argues against this view, claiming that the case in favour of it is weak and that its potential harms could be substantial. Such a move could be costly, hamper needed regulation and be abused by well-resourced litigants.

The comparative law arguments often adduced in favour of the move are equivocal. This article argues — with apologies to the “variable intensity of review” argument — that the proportionality test is generally a somewhat demanding standard of review. It is an asset that should be deployed carefully when we have reason to want more searching review. Thus, in a more constructive vein, the article presents a halfway house by explaining how proportionality could be used, consistently with its more searching character, in public law where there is evidence of special demand for greater judicial scrutiny.

Proportionality in Perspective

Thomas Poole

This article questions the received genealogy of proportionality, which traces its origins to continental European sources, especially German administrative law. The article goes back to Plato and Cicero, two defining writers on law and politics in the classical world. Analysis of their work reveals a richer role for proportionality in visions of public law, and how deeply that idea is embedded in classical conceptions of justice.

We see in Plato and Cicero two dimensions particularly worth noting. Proportionality is “rounded off” in relation to an overarching scale of values — it has a metaphysical or celestial quality. Proportionality “reaches out” to identify the relevant political community to which proportionate justice is to apply — which, in Cicero, has a universal or universalising tendency. Returning to the present, the article argues that the modern proportionality principle, while certainly attenuated when set against its classical forebears, shares some of the same features. In particular, modern conceptions of proportionality involve, whether explicitly or not, the phenomena of “rounding off” and “reaching out”; a point that is illustrated by referring to two different attempts to make sense of proportionality in common law judging. One, like Plato, turns inward to the (perceived) structure and values of the state. The other, following Cicero, turns outward in a search for more global standards of justice.

Mapping the Rainbow of Review: Recognising Variable Intensity

Dean R Knight

This article explores Professor Taggart’s “rainbow of review”, a metaphor which seeks to capture the different intensity applied by courts when reviewing the administrative decisions of public bodies, office-holders and officials. The primary purpose of this article is to demonstrate the widespread application of variable intensity in New Zealand administrative law, both in its overt and covert forms.

This article also builds on the contextualism–deference couplet mentioned by Professor Taggart — the idea that a commitment to the importance of context must also involve the application of deference (or variability) in judicial supervision. The secondary purpose of the article is to examine the attitudes of local jurists, scholars and practitioners to the contextualism–variability couplet. A strong commitment to the first arm of the couplet is evident, but there are greatly varying attitudes to the latter arm. The article aims to build a foundation for the future examination of the ideal mechanism to capture and calibrate variable intensity.

Evidence

Richard Mahoney

The Evidence Act 2006 (the Act) has been with us now for three years. For every issue that is resolved, another one is thrown up by facts or arguments that no one had previously anticipated. From the substantial range of options, the three broad topics chosen as the focus of this review are propensity evidence, improperly obtained evidence, and privilege. Section references in this review are references to the Act unless otherwise specified.