Q21: EVIDENCE

Q21: Is your decision consistent with the evidence?

Is your decision supported by the evidence before you?  Is that evidence robust?  Do you have good reason to have rejected evidence that would support an alternative option? Do you have all of the facts?

While the courts will resist weighing the evidence for the decision-maker, the treatment of evidence (or lack of it) can lead to decisions being overturned. The courts also expect that a decision-maker can demonstrate in a transparent and accountable way how the balancing exercise was undertaken.

Decisions may therefore fail for:

  • relying on evidence that is discredited or mistaken;
  • rejecting or failing to consider relevant evidence;
  • applying the wrong onus of proof.

Lack of information may mean that the process should be delayed to make fresh inquiries.

The Court of Appeal overturned a decision by the Minister of Immigration not to exercise discretion to order that a woman not be deported.  The request from the woman was primarily based on the impact the deportation would have on her (New Zealand-born) child with a rare disease.  The Court found that a key medical report relied on by the Minister was flawed (leading to a mistake of fact), and also found a breach of natural justice in that the adverse report was not provided to her in order to allow her to submit on it.
Daganasi v Minister of Immigration [1980] 2 NZLR 130
In the context of a decision under the Resource Management Act 1991 not to publicly notify an application for a resource consent, the Supreme Court stated:
“The consent authority must be clear that notification would not elicit information or perspective which would cause it to view the effects of the activity on the environment as more than minor….  It was not sufficient for the consent authority to have before it ‘some material of probative value’”
Westfield (New Zealand) Limited v North Shore City Council [2005] SC 17 at [25-26]
In 2005, the High Court held that TV3’s decision to exclude two political leaders from its televised leaders’ debate was susceptible to review. Review is not limited to public bodies exercising statutory functions. It is concerned with bodies performing what are essentially public functions or the exercise of public powers. The Court was satisfied that TV3 in its election coverage was performing a public function and this was a “comparatively rare” example of a private body exercising a public power with such significance that it should be susceptible to review. The decision to exclude the two leaders was held to be arbitrary and flawed as it was based on a single poll with high levels of margin of error, with the poll results (including the margin of error) of the two leaders excluded being indistinguishable from two leaders included.
Dunne v CanWest TV Works Ltd [2005] NZAR 577 (HC)

Will the record of your decision establish that you have considered all of the relevant material?

If you are summarising facts for a decision-maker, the summary needs to be carefully constructed to ensure the relevant facts are correctly portrayed.

A decision of the Minister of Fisheries to set a maximum number of sea lions that could be caught by the squid industry around the Auckland Islands was challenged in 2003.  The Minister had set a limit that was recognised as conservative, and did not take into account that principle that decisions should be based on the best available evidence.  Better analysis and advice relating to recent scientific approaches and evidence would have indicated to the Minister that there was considerable more ‘head room’ deaths within the agreed conservation outcomes than (the Court inferred) the Minister had in mind when the decision was made. The Minister’s contemporaneous notes indicated an acceptance that the newly developed scientific approach was preferable, but the actual decision was still based on old science.  While the Court did not say that another number should have resulted, this failure in process was sufficient to overturn the decision.
Squid Fishery Management Company Ltd v Minister of Fisheries CA39/04, 13/7/2004, at [93] and [103]
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