The Demise of Ultra Vires in New Zealand: to Be? Not to Be

Abstract

This paper examines whether New Zealand courts have renounced the ultra vires doctrine as the central principle of judicial review. It examines this topic in terms of the expanded meaning of jurisdiction, the relationship between error of law review and ultra vires, the role that legislative intent plays, as well as the competing concepts of parliamentary sovereignty and common law fundamental rights. This paper observes that vires has evolved from the narrow concept of jurisdiction to general power conferred by Parliament. It further argues that the New Zealand courts have treated error of law review as a species of ultra vires, that there is a trend to interpret legislation more strictly without reading in the courts’ extra requirements of good administration, that the courts employ legislative intent in dealing with privative clauses, and that they avoid expressing a view on the common law fundamental rights discussion. The conclusion is that the courts shave not renounced the ultra vires doctrine