Response to the Government’s limitations on judicial review under the Fisheries Act

Today Minister Shane Jones has announced he intends to limit the grounds for judicial review of decisions under the Fisheries Act. The Environmental Law Initiative has not yet seen the details of these changes. We understand they are part of reforms to the Fisheries Act, however, limits to judicial review were not consulted on.

ELI says this is a very concerning development, which would undermine the accountability of decision making, the rule of law, and ultimately the health of our ecosystems.

ELI has won successive High Court cases against the Minister for Oceans and Fisheries because Ministers have made unlawful decisions under the Fisheries Act.

ELI’s director of legal and research, Dr Matt Hall says, “Any restrictions on judicial review under the Fisheries Act will mean that when unlawful decisions are made, they may be unchallengeable. This would undermine the rule of law.”

The Law Society has recently warned against removing or restricting the right to apply for judicial review, "Legislation should not remove the right to apply for judicial review. Restrictions placed upon the right should be rare, limited to cases where finality is critical, and be proportionate to that objective."

“We have a catastrophe of kina barrens up and down the East Coast of Northland, because successive governments have allowed too much crayfish to be taken. In the largest orange roughy fishery, the population has crashed – even though Fisheries NZ has supposedly been overseeing the sustainable management of the stock.

“Rigorous review of decision-making by officials and Ministers, including through the courts, is crucial therefore to ensure the sustainability of our oceans and to protect Aotearoa New Zealand’s interests in our EEZ,” says Dr Hall.

Background

The NZ Law Society's report "Strengthening the rule of law in Aotearoa New Zealand" says: "Both judicial review and appeal mechanisms also strengthen the rule of law by enabling individuals to resort to the courts to resolve disputes or to exercise their rights, and by helping to maintain a high level of public confidence in the legal system."

Under the UN Convention on the Law of the Sea, the Government has a duty to protect the marine environment, and that is the legal obligation underpinning our right to use the resources in our Exclusive Economic Zone.