10.4.3 General decision-making requirements of public law

 

  1. All council decision-makers are subject to public law principles which are enforced by the High Court in judicial review. They require public decision-makers to act lawfully, fairly and reasonably.

  2. The concept of acting lawfully includes:

    • having the necessary power or delegation to make the decision

    • acting in accordance with the purpose of the power being exercised, and within the scope of the discretion granted to the decision-maker

    • taking into account all relevant considerations and ignoring any irrelevant considerations

    • exercising independent judgement in making the decision rather than rubber-stamping the recommendation of another person.

  3. The concept of acting fairly includes:

    • ensuring a proper process is followed, including consulting where appropriate

    • being unbiased and free from conflicts of interest [1]

    • fairly considering all relevant views put forward and not predetermining the decision [2]

    • complying with the public’s legitimate expectations (e.g. keeping a promise to do something in a particular way that has been relied on)

    • complying with any applicable principles of natural justice (although what this will require depends heavily on the context, as discussed below).

  4. The concept of acting reasonably includes:

    • ensuring the decision is rational, based on legitimate reasons and one that a reasonable decision-maker could make

    • ensuring the decision is proportionate to the purpose being served by the decision (the idea that a legal sledgehammer should not be used to crack a nut, especially if it affects human rights).

  5. These public law obligations vary by context; the exact obligations that apply depend on the nature of the decision [3].

 

 

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