Judicial Review as Dialogical Accountability: Aotearoa New Zealand’s Supervisory Jurisdiction

1 Introduction

In Aotearoa New Zealand, judicial review is heralded as the gold standard legal process for holding the government to account. Administrative decisions of ministers, officials and public bodies (but not primary legislation passed by the legislature) are subject to scrutiny by the senior courts. Judicial review is traditionally understood as expressing certain fundamental – constitutional but common law – standards. In other words, the courts police the rule of law by insisting administrative decisions comply with a series of good governance norms, such as legality, procedural fairness and reasonableness.

In a modest shift in perspective from this traditional picture, I look at judicial review in a different way in this chapter: as a form of dialogical accountability. Thinking about the mechanism of judicial review as an expressive activity anchors accountability in a relationship between actor and forum where actions are justified, interrogated and judged through dialogue. The emphasis shifts back to the primary decision-maker and their duty to render account. Accountability is grounded more in the notion of explanation by decision-makers than intervention and invalidation by a judicial watchdog. The supervisory court, as a forum, still plays a crucial role as a recipient of that explanation – interrogating and appraising the reasons offered to justify the administrative action and generating consequences by granting legal remedies. But dialogical accountability views that judgement in the context of a dynamic conversation about justification.

The focus on dialogue does not discount the crucial role judicial supervision of administrative action plays in the constitutional ecosystem. But it brings attention to different features of the process of judicial review than traditionally seen in the picture of rule of law enforcement. Dialogical accountability, amongst other things, more readily positions judicial review as part of the broader suite of accountability mechanisms, such as ministerial accountability within Parliament, where the ritual of explanation is centre stage.

The idea of inter-branch dialogue is, of course, commonly spoken about in the field of constitutional law, typically in the context of judicial review of legislation; and, then, the notion of dialogue tends to focus on legislative responses to judicial intervention.^[1] Here, however, the focus is somewhat different. First, the dialogue does not arise from the interrogation of legislation: legal traditions in New Zealand do not allow for the invalidation of legislation by judicial review.^[2] Secondly, the dialogue arises in the context of judicial supervision of administrative action – and in the context of an expectation or duty that ministers, officials and public bodies must be held accountable for the discretionary powers and functions delegated to them by the legislature. In other words, the focus here is on dialogue in miniature, within the immediate process of exacting accountability for administrative action via judicial review.

In order to illuminate the way judicial review engenders this form of dialogical accountability, I explain New Zealand’s current practice and experience in a way attentive to its expressive character. In doing so, I highlight the features of judicial review – both procedural infrastructure and substantive doctrinal norms – that foster and support this dynamic relationship of dialogue between actor and forum. I then conclude by offering some reflections on the virtue of viewing judicial review in dialogical terms and implications for its place within the myriad of other accountability conversations operating within modern government in New Zealand.

2 From Rule of Law Enforcement to Dialogical Accountability

Our starting point is the standard account of judicial review in New Zealand that tends to characterise the supervisory jurisdiction as the manifestation of the rule of law and a mechanism by which aggrieved people can challenge a governmental decision.

A brief dip into the leading textbooks and practice manuals reveals a heavy emphasis on the rule of law – and the courts’ corresponding enforcement role – in their key explanations of the nature of judicial review of administrative action. A few examples are sufficient. The opening words in Taylor’s specialist textbook describe judicial review as ‘neither more nor less than the enforcement of the rule of law over executive action’, reproducing the words of a senior Australian judge.^[3] That quotation is echoed in the leading bureaucratic manual on administrative decision-making, Crown Law’s The Judge Over Your Shoulder.^[4] The legal encyclopaedia, Laws of New Zealand, points to judicial review’s legitimacy being founded on the rule of law and explains that the ‘primary role’ of the courts on judicial review is to ‘uphold the fundamental and enduring values that constitute the rule of law’.^[5] So too Smith’s professional handbook on judicial review: he reiterates that judicial review ‘affirms and upholds’ the rule of law;^[6] a catalogue of cases that speak to the rule of law as the justification for judicial review follows.^[7] And Joseph, in his weighty constitutional text book, joins the chorus too: ‘judicial review is an institution of constitutional importance embracing the rule of law’, he says, along with the formal superiority of the legislature and judicial independence.’^[8] The role of the court as a constitutional ‘watchdog’ – charged with policing and enforcing the rule of law as constitutional principle and providing redress for those wronged – is also ubiquitous in standard accounts. Judicial review is, Smith says, a ‘constitutional fundamental’ through which an independent judiciary ‘supervises’ the exercise of public power.^[9] The language of supervision and primacy of the courts is repeated in Taylor’s text.^[10] The government’s bureaucratic manual highlights the way judicial review ‘protects individual citizens against excesses or abuses of public power’ and provides ‘a legal process where individuals can challenge the lawfulness of a decision’.^[11]

The traditional story thus told about judicial review tends to emphasise the policing of breach and resolution of grievances. Judicial determination of lawfulness and lawlessness – judicial rulings on the meaning of law and its proper application – looms large. Remedial power of judges, especially their ability to intervene to right wrongs and alleviate any prejudice suffered, is heavily showcased. More monologue than dialogue.

The alternative story about judicial review of administrative action, and the one I seek to sketch in this chapter, presents judicial review as a form of dialogical accountability. Bovens, for example, explains accountability as a ‘social relation’:^[12]

Accountability is a relationship between an actor and forum in which an actor has an obligation to explain and to justify [their] conduct, the forum can pose questions and pass judgement, and the actor may face consequences.

Explanation of accountability as a social relationship foregrounds the expression and dialogue that lies at its heart.^[13] Thus, Bovens’ definition is especially useful for present purposes. However, other models of accountability from the dialogical family of accountability could equally be co-opted: public administration, political science and legal literature is replete with other definitions of accountability that are similarly attentive to expressive explication and justification.^[14] As Day and Klein explain, accountability ‘is all about the construction of an agreed language or currency of discourse about conduct and performance’.^[15]

The relational and dialogical definition employed by Bovens captures a wide range of relationships where ministers, officials or public bodies are called on to render account to different forums. The forum and relationship may sit in the legal or political domain. The relationship may be formal or informal. The forum may be internal or external, sitting inside or outside the governmental apparatus. The relationship may be direct or indirect. The dialogical definition of accountability can robustly capture the myriad of accountability relationships that face ministers, public bodies and officials in modern-day government.

We can graphically see the natural dialogue arising from, for example, ministerial responsibility. There is a direct and formal accountability relationship between ministers, as actors, and Parliament, as forum; and, more broadly, this relationship is echoed in more informal relationships with the electorate. Ministers are expected to explain and justify matters that happen in their portfolios; members of Parliament interrogate ministers and make judgements about their stewardship of government office. Oral and written parliamentary questions or briefings before select committees are common direct means for interrogation and rendering of account. Judgement on performance is typically expressed informally, often in parliamentary debates or utterances outside Parliament to media and the public. Ministers may also face consequences, such as public opprobrium, diminished electoral prospects and, if the confidence of their colleagues is sorely tested, loss of office. The metaphor of dialogical accountability can also be applied to integrity institutions such as Ombuds or the Auditor-General: ministers or government bodies are actors who render account to these institutions, where the explanation given is interrogated against certain benchmarks; judgement is brought to bear by these bodies through reportage of their finding and (usually non-legal only) consequences might flow as a result.

For judicial review, in simple terms, the actor is the decision-maker subject to review and the forum is the supervising court. The obligation to explain and justify comes from the duty to present a legal and factual defence to the allegations made by an applicant. Questioning duties are shared between the supervising judge and applicant, but principally the applicant carries the burden of interrogation. The appraisal rendered in the court’s decision is the rendering of judgement, which usually involves consequences in the form of relief. Other consequences may flow from observations made in the court’s reasons or findings formalised in declaratory relief; disapprobation and vindication may have sequels elsewhere, politically or reputationally.

Against that basic sketch, we can look deeper into the way the legal apparatus in New Zealand supports this form of accountability, with particular attention to how dialogue is supported.

3 Actor and Forum

The identity of the actor and forum speaks to the personnel engaged in the dialogue in order to ensure accountability is brought to bear. The actor element implicates the sometimes tricky question of who is amenable to judicial review in relation to what decisions. In other words, the actor is the respondent in judicial review proceedings called to account. The forum element reveals the precious and exclusive role of senior courts to supervise public decision-making by judicial review. However, as we see in the next section, some of the forum’s accountability duties – especially questioning and interrogation – are partly undertaken derivatively; the applicant who challenges the government’s decision plays a supporting role by catalysing the need for the rendering of account and the case they present for judicial review also tests the government’s justification.

We can start, first, with the identity of the actor and the preliminary question of which individuals or bodies are expected to render account for particular decisions. In broad terms, the jurisprudence of amenability to review requires that decision-makers or their decisions must have some degree of publicness in order to be exposed to review. In the case of ministers, officials and public bodies, this is usually not an issue because their institutional status – born of government – qualifies. But when a functional lens is adopted, such as when private bodies undertaking public functions are challenged, amenability to review is more complicated. The focus turns to the nature of the decision itself and becomes a value judgement about the character of government: whether the decision is one that is intrinsically public in nature.^[16]

Amenability to review is an amalgam of rules about jurisdiction and justiciability, coloured both by common law and statute.^[17] Judicial review in New Zealand has – and continues to have – its genesis in the common law, traceable back to the ancient prerogative writs of the monarch.^[18] Modern statutory reform provides procedural support for these common law remedies but without codifying the substance of judicial review; direct resort to common law judicial review remains possible but is rarely invoked.^[19]

The Judicial Review Procedure Act 2016 provides a simplified procedure for judicial review in the most common type of case: where a ‘person’ has exercised a ‘statutory power’.^[20] Person is defined expansively to capture natural persons, as well as corporate and unincorporated bodies – without any governmental qualification.^[21] Statutory power is defined to include various types of decisions or actions taken under Acts of Parliament or corporate instruments. The combination of the two means there are few actors that are beyond reach – deliberately, because the reforms were intended to ensure that applicants were not stymied by formal procedural impediments. However, the procedural reforms did not act as a code and kept alive the underlying common law of judicial review. The consequence of this is that the jurisdictional limits of common law judicial review still need to be established (even though occasional cases sometimes fail to acknowledge this and treat the procedural legislation as conferring jurisdiction).^[22] For present purposes, it is sufficient to acknowledge that those common law limits insist on some form of publicness, whether institutional, functional or consequential – albeit that the outer boundaries of those limits evolve. Judicial review is generally concerned with the accountability of government officials and bodies. But we can add a number of private bodies to the list of actors exposed to accountability through judicial review when they make decisions with some public character; a broad and non-exhaustive test has been adopted to determine whether the essential requirement of some form of publicness has been triggered.^[23] Some prominent examples include a professional body regulating medical practitioners,^[24] a self-regulatory advertising standards body,^[25] a sports organisation making a significantly controversial decision to tour apartheid South Africa,^[26] and a private media organisation deciding participation in election debates.^[27] But otherwise private bodies making intrinsically private decisions are not subject to judicial review.

The breadth of judicial review’s jurisdiction in New Zealand is sometimes limited, albeit marginally, by the principle of non-justiciability. Sometimes the courts decline to review the actions of a decision-maker because the decision or complaint is unsuitable for judicial scrutiny or for reasons of constitutional comity.^[28] This judicial humility means a small number of decisions are not subject to formal accountability appraising them against the legal standards applied through judicial review. But non-justiciability as a preliminary and absolute exemption from accountability is waning in New Zealand; more typical nowadays is for the courts to engage in a more gentle form of supervision, by measuring propriety against more deferential standards or employing more circumspect relief.^[29] In other words, rather than conditioning the obligation of an actor to render account for a particular decision, justiciability conditions the vigour of the interrogative conversation: less so in cases at the margins of the courts’ competence or in delicate cases implicating institutional comity. Or sometimes justiciability encourages less severe consequences, perhaps only declaratory in nature.

The identity of the forum , secondly, is straightforward because judicial review is the sole preserve of the senior courts. In other words, the jurisdiction to exact accountability through the mechanism of judicial review is held by the High Court only. This jurisdiction is not conferred by statute; instead, it is part of the birthright of the senior courts.^[30] The Judicial Review Procedure Act 2016 recognises that an application for judicial review may be made to the High Court but, as mentioned earlier, this merely supports the High Court’s inherent review powers.^[31]

A few minor caveats apply though. First, by statute, the Employment Court has exclusive jurisdiction to hear judicial review applications relating to employment matters.^[32] Secondly, other judicial institutions, such as the District Court, may be called on to consider judicial review principles in other proceedings, where the legality of such actions are put in issue through collateral challenges.^[33] Thirdly, appellate review undertaken by the High Court and other courts often looks like judicial review and brings a similar spirit of accountability. However, the source of authority for review is statutory and thus the nature of the conversation and consequences often differ.^[34]

The forum for accountability through judicial review – namely, the senior courts – is therefore composed of people with significant experience and acumen in law and adjudication. However, the senior courts do not reflect the diversity of general population, especially for women, Māori and other minority ethnicities, and the LGBT+ community.^[35] While judicial review’s accountability conversation is usually focused on law and process, the background and credentials of judges inevitably adds a particular accent to that dialogue. The lack of diversity risks undermining some of the legitimacy of the courts’ judgements, especially in public interest cases when the conversation often shifts slightly towards policy and political matters where values start to creep in.

4 Account-Giving and Questioning

The rendering of account tracks the curial process for judicial review. In other words, ministers, public bodies and officials explain and justify their actions through the evidence presented, and legal arguments made, by their lawyers in the course of the judicial review proceeding. The actions decision-makers take to ‘defend’ a judicial review application open a dialogical conversation about the propriety of their action, even if not always recognised in these expressive terms. However, the explanation (and cognate questioning and consequential judgement) is tightly circumscribed: it is generally restricted to assessing the legality of the decision taken, not a free-ranging assessment of its wisdom. Questioning by the forum, perhaps oddly, is largely derivative; the adversarial nature of judicial review proceedings means the applicant – not the court as forum – undertakes most of the questioning through the contestation of the respondent actor’s case.

To elaborate, the ritual of judicial review procedure supports account giving and questioning through the following procedural requirements. The applicant commences the judicial review proceeding by filing a statement of claim.^[36] The statement of claim must set out the ‘general nature of the … claim to the relief sought’, along with sufficient particulars of time, place, persons, instruments and other circumstances.^[37] The statement of claim must conclude by specifying the relief or remedy sought.^[38] In practical terms, these combined requirements mean an applicant needs to describe the decision they are challenging (with some specificity), explain how it affects them, identify relevant grounds of review relied on and spell out the particular relief sought.^[39] Standing is rarely an issue as a very liberal approach is adopted.^[40] As respondent, the decision-maker must file a statement of defence, admitting or denying the statements of fact alleged in the statement of claim.^[41] Many of the underlying facts can often be readily admitted by the decision-maker without difficulty, given judicial review’s focus is on law and process (although it is also not uncommon for applicants to be unnecessarily prolix in their factual allegations).^[42] Disputed facts are an anathema and the courts often disclaim their ability to resolve factual disputes through judicial review.^[43]

A case management conference settles a timetable for these preliminary steps, including deadlines for filing the statement of defence and evidence, as well as any need for further particulars, discovery or interrogatories.^[44] In New Zealand, there is no requirement to obtain leave or permission to commence judicial review proceedings. However, the case management conference gives a judge an early opportunity to eyeball the claim and, if necessary through their procedural powers, to help refashion it into a form that can be competently addressed by the court.

Evidence in judicial review proceedings is usually exclusively by way of affidavit.^[45] Cross-examination of witnesses is only allowed with permission and is rarely granted.^[46] While the sequence for filing evidence is ultimately in the hands of the judge through the case management conference, judicial review tends to echo typical adversarial litigation. Applicants file their evidence first (often key affidavits are filed along with the statement of claim) and respondents follow; applicants sometimes file further affidavits in reply. Importantly, public decision-makers are subject to a ‘duty of candour’, where they are expected to explain the decision-making process, relevant factual circumstances and reasons for the decision; failure to do so might lead to the supervising court drawing adverse inferences.^[47] Disclosure of documents through formal discovery is almost always not needed because applicants can access documents independently before a challenge commences through freedom of information processes;^[48] parties are also required to provide key documents when filing their statements of claim or defence.^[49] However, discovery can be ordered by the judge at a case management conference if necessary.^[50]

Proceedings are expected to be brought on to hearing swiftly. Judicial review is traditionally expected to be ‘a relatively simple, untechnical, and prompt procedure’, due to its generally circumscribed and legal focus.^[51] The hearing tracks the sequence of typical adversarial litigation: the applicant presents their case; the respondent puts their defence; the applicant replies briefly. Oral submissions – almost always nowadays supplementary to filed written submissions – highlight key evidence, argue about the applicable law and generally make the case for the grant or refusal of relief. Hearings are expected to be relatively brief, given the slim-lined adjudicative model of judicial review. That is, the central focus is expected to be on law and justification, without any significant need to resolve disputed facts. Throughout the hearing, the presiding judge may ask questions of counsel to clarify matters. However, the frequency of judicial intervention varies from judge to judge. Some barely say a word. Others seize control of the hearing and curate the agenda of discussion and debate.

We can see the shape of accountability dialogue within these proceedings, although the rhythm differs slightly from more direct interrogative forms of accountability exhibited in other forums. The most vivid rendering of account by the actor is seen in two key places. First, the actor themselves will typically prepare an affidavit explaining the context, explicating the factual basis of their decision and justifying their decision. Secondly, the actor, through their statement of defence and lawyers’ legal submissions, will defend the propriety of that decision when appraised against legal requirements. Rendering of account in these ways ensures that the reasons for a decision are revealed. Thus, judicial review is a precious form of accountability because there is no general common law obligation on public decision-makers to provide contemporaneous reasons for decisions (although sometimes specific statutes so provide and those personally affected by a decision have a general right to request reasons after the fact under freedom of information legislation).^[52]

The questioning by the forum arises indirectly, largely through presentation of a counter-narrative by the applicant. The applicant – through their statement of claim, evidence and submissions – questions the propriety of the decision by arguing its deficiency, either by directly quibbling with the applicant’s account or inviting clarification and explanation of the decision and its justification. The judge may supplement the applicant’s questioning with some of their own.

Overall, judicial review has particular rhythm engendered by its adversarial and adjudicative pedigree. That rhythm might perhaps seem a little odd, though, when considered in terms of dialogical accountability. The forum charged with dispensing judgement (the court) sits passively, while the applicant takes the lead on questioning. Nowadays, the traditions of party-led adversarial civil ligation dominate, eclipsing the ancient origins of judicial review as a writ from the monarch demanding explanation.^[53] The pattern of explanation and questioning is slightly jumbled. The actor’s explanation is initially drip-fed, through a statement of defence and affidavit evidence; when finally fully revealed, the applicant has little scope for direct questioning of the actor’s explanation. Like sports teams or cultural groups performing a traditional Māori haka, the challenge and reply are uttered from distance, often with little synchronous engagement between the two.

Explanation and questioning are significantly constrained too. The court’s judgement, as explained shortly, is focused and concentrated on (non-)compliance with principles of good administration. In general terms, principles of good administration demand that the decision-maker understood and applied the law correctly, followed the proper process, and ultimately made a reasonable decision; a failure to comply with those expectations amounts to a ground of review from which consequences may flow. This ultimate focus on grounds of review colours the tone of the explanation and questioning. Evidence and argument hones in on matters that address grounds of review – explaining why a ground is or is not made out in the particular situation. I return to the role played by grounds of review in the context of the judgement brought to bear by the court.

Finally – and importantly – the account giving and questioning (and subsequent judgement) takes place publicly. There is public ritual and transparency associated with the justification and exacting of accountability, in contrast to some other accountability conversations which take place internally within government or in circumstances where the public are not privy.

5 Judgement and Consequences

The supervising court ultimately publicly expresses its judgement after the hearing through a formal judgment. The judgment specifies any relief that has been granted as a consequence of the court’s appraisal. The reasons for the decision, nowadays almost always incorporated into a written judgment, explain the rationale for granting or withholding relief through an analysis of whether the grounds of review have or have not been established. Judicial review is traditionally seen as a remedial jurisdiction, mostly concerned with the grant of relief – ie, consequences. However, the role judicial review plays in accountability dialogue means a court’s reasons – ie, its judgement – assume heightened significance.

Turning to the judgement, first, we see that the appraisal of the actor’s explanation by the court as forum is conditioned by applicable grounds of review. A court’s reasoning and ultimate judgement are expected to analyse whether, in a negative sense, a ground of review is made out. Put in a positive sense, a court is expected to assess whether a decision and decision-making process complies with norms of good administration. These grounds and norms are generated by judges through the common law and are not codified in legislation.^[54] Judicial review doctrine in New Zealand owes its pedigree to its English common law parent and there is a strong similarity in the suite of grounds between the two jurisdictions; however, local judicial review doctrine is showing some signs of indigeneity.^[55] Broadly, as mentioned earlier, these grounds and norms look at whether the decision-maker understood and applied the law correctly, whether the decision-maker followed the proper process, and whether the decision itself is reasonable. In theory, judges are not supposed to second-guess the ‘merits’ of the decision; that is, they do not decide a case based on their own view of whether the decision itself is wise or optimal.^[56] Judicial review traditionally does not invite wholesale revisitation of a decision or unconstrained assessment of its wisdom. But, occasionally in practice, the temptation proves too much and some evaluation of the merits seeps into the court’s formal appraisal, either latently or patently.^[57]

The grounds or norms themselves are often expressed as a simplified trilogy: illegality, (procedural) unfairness and unreasonableness.^[58] But, in reality, the catalogue of grounds is much more extensive and sometimes enigmatic. First, the courts have developed more particularised versions of these generalised grounds, such as taking into account irrelevant considerations, failing to take into account relevant considerations, acting with an improper purpose, improper fettering of discretion, breach of natural justice, bias, and so forth.^[59] Secondly, the unreasonableness ground is traditionally calibrated deferentially – ‘so unreasonable that no reasonable authority would make such a decision’, as it was put in Wednesbury – in part to discourage judges from second-guessing the merits of a decision.^[60] However, sometimes the courts have deployed different standards of reasonableness in some contexts.^[61] The methodology for reasonableness review remain a little contested and unsettled, especially whether and how the intensity of review might vary according to context.^[62] Thirdly, the courts have also developed alternative substantive grounds which invite closer scrutiny of the merits of a decision.^[63] Those with some degree of currency include breach of legitimate expectation,^[64] and (serious) mistake of fact.^[65] Proportionality has not taken off as a general ground of review in New Zealand, except in narrow circumstances such as review of penalties and local authority bylaws.^[66] A few judges have justified their invention on a more generalised threshold (‘whether something had gone wrong of a nature and degree which required the intervention of the court’) but this approach is viewed dimly as it risks introducing an indeterminate and largely discretionary ground of judicial review.^[67]

In the context of dialogical accountability, the important point is that these grounds of review frame the explanation, questioning and ultimate judgement. In other words, the grounds of review provide the legal benchmarks for accountability and provide a lexicon for dialogue between actor and forum. Thus, the accountability conversation is narrow and concentrated on particular forms of (il)legality – a point often misunderstood by lay members of the community.

Formal consequences come in the form of court-ordered relief. The relief that can be granted is set out in the Judicial Review Procedure Act 2016. Relief reflecting the old prerogative writs that developed into modern review may be granted: namely, mandamus, prohibition or certiorari.^[68] The simplification of procedure in the 1970s means writs themselves are no longer ordered; rather, orders are granted in the nature of the old writs.^[69] Alternatively, a declaration or injunction may be granted as relief.^[70] If an applicant is entitled to a declaration that a decision is unauthorised or invalid, the court may instead set aside the decision.^[71] The court may also direct reconsideration of the decision, either in combination with or instead of other relief.^[72] Ordering reconsideration is routine except in unusual cases, reflecting the law–merits dichotomy that traditionally runs through judicial review. Notably, there is no right in judicial review for compensation for an invalid decision. However, in limited circumstances, invalidation of a decision by judicial review might trigger fiscal consequences in other domains of law, such as claims in tort, restitutionary remedies or for compensation under the Bill of Rights Act.^[73] Ultimately, remedies in judicial review are discretionary, both as to whether relief should be granted and, if so, what orders should be granted.^[74] Typically, proceedings will ask for a decision to be invalidated and, if invalidated, the decision will be sent back to the decision-maker to make the decision again, often with directions about the proper way to do so.^[75] In so doing, judicial review remedies potentially open up broader inter-branch dialogue, as the administration responds to the ruling; consequential decisions taken then are ripe for review again and another accountability conversation is once again triggered.

One particular form of relief – a declaration, without quashing the decision or otherwise changing the applicable legal settings – has become rather fashionable lately.^[76] Declaratory remedies provide a further opportunity for the need for comity between branches to be recognised. We might think of the remedial discretion as a form of tertiary justiciability, allowing the courts as forum to adopt a more deferential posture, in this instance, by not quashing the decision under review.^[77] The absence of formal legal consequences makes the declaratory remedy curious but its contribution to accountability should not be discounted. A declaration comes with the sting of adverse judgement from a specialist forum – that is, criticism and disapprobation of the highest order. The black mark for the governmental actor will carry particular weight in other overlapping accountability conversations; further accountability based on a court’s criticism may be brought to bear indirectly and informally within government and the political arena by forums such as Cabinet colleagues, departmental managers, opposition parties, media and – ultimately, the public at the ballot box. The political stakes of a minister, for example, will inevitably be diminished by a declaratory ruling of a court that they have acted unlawfully, especially when broadcast on the front page of newspapers of record. And, similarly, even sometimes when a government actor has prevailed in a judicial review application and avoided formal findings of illegality, informal criticism from the judge in the course of their reasoning may still carry some sting.^[78] The expression of adverse judgement may be more important to accountability than remedial consequences.

6 Conclusion

There is no doubt that judicial review of administrative action is one of the most precious forms of accountability in Aotearoa New Zealand’s civic sphere. Traditional accounts of judicial review of administrative action emphasise the courts’ role in enforcing the rule of law and its potency for addressing grievances. These features are undoubtedly important. But their prominence tends to obscure or overshadow another dimension of judicial review: the way judicial review provides a mechanism for ministers, public bodies and officials to render account for their actions. Judicial review shares the rhythm of account-giving, interrogation, appraisal and consequences with other accountability conversations throughout the civic sphere. In this chapter, I have highlighted and explained the rituals of judicial review that foster this dialogue between governmental decision-makers as actors and courts as forum.

It is no revelation, of course, that judicial review is a form of accountability per se, amongst many others. But the way judicial review brings accountability through dialogue is underappreciated. Attentiveness to the discourse between government and court in judicial review proceedings – the lyrics of rendering account, questioning and judgement – unlocks, I suggest, a different way of thinking about judicial review: less emphasis on powerful judges warding the rule of law; more emphasis on the government’s obligation to explain and justify its action. Perhaps even shades of Dyzenhaus’ culture of justification in administrative law.^[79] Attentiveness to how the ritual of judicial review supports, frames and delivers accountability in dialogical terms invites us to reflect on our expectations of judicial review and the elements of the process as traditionally emphasised. Perhaps even a tentative invitation to revisit the process itself in order to amplify the rendering of account and foster the conversations that follow. Should, for example, the government’s explanation and justification be sequenced first in the hearing? Attentiveness to explanation and justification in judicial review also makes it feel more familiar in the family of accountability mechanisms. Accountability brought to bear by parliamentary or integrity institutions such as Ombuds and audit bodies often feels lPartike conversations and debates about good governance. So too judicial review, if its expressive dimension is drawn out.

Through its English title – The Judge Over Your Shoulder – the government’s bureaucratic manual on judicial review evokes a picture of potent watchdogs stepping in to uphold the law and correct wrongs. Through its recently added te reo Māori title – Te Pouārahi (people who provide guidance and direction) – the manual hints at a conversation of sorts, of a relationship bringing appraisal and shared wisdom. In the spirit of the latter, this chapter has sought to highlight the way judicial review in Aotearoa New Zealand generates a particular form of relational discourse, so that this dialogical accountability might more readily be appreciated alongside its rule-of-law-enforcement counterpart.