A New Perspective on the Public-Private Divide? Justiciability of Government Contracting Decisions Following Ririnui and Problem Gambling
33 Pages Posted: 12 Jul 2019
Date Written: July 4, 2017
Behind every theory of administrative law lies a theory of the state. Nowhere is this more apparent than in the application of judicial review to government contracting decisions. New Zealand courts have long struggled to adopt a consistent and coherent approach to this problem, and two recent decisions in this area do very little to resolve this. This paper argues that a decision of the Supreme Court in Ririnui significantly broadens the scope of this doctrine by providing an exception to Mercury Energy. The Court of Appeal’s approach in Problem Gambling is more cautious, but has nevertheless resulted in a broadening of the range of circumstances where government contracting decisions will be subject to judicial review. Beyond these limited findings however, the law both in New Zealand and overseas continues to lack consistency and coherence. This paper suggests that while this state of affairs is undoubtedly the result of the application of a public law cause of action to a context which sits right on the cusp of the public law-private law divide, the courts need to stop relying on an inconsistent doctrine, and admit that cases are being decided on the basis of normative conceptions of the proper role of judicial review in this context.
Keywords: judicial review, government contracting
JEL Classification: K00
Suggested Citation: Suggested Citation