Charting the trajectory of intensity of review following Osborne v Worksafe New Zealand

Abstract

The courts have used the concepts of justiciability and intensity of review to restrict access to judicial review where it seemed inappropriate to intervene in executive decision-making. The courts have used these concepts to limit judicial review of prosecution discretion. More recently, there has been a trend in favour of widening availability of review, resulting in a shift away from non-justiciability towards intensity of review. This paper examines the trajectory of judicial review away from non-justiciability and towards intensity of review, and considers whether the Osborne v Worksafe New Zealand litigation disrupts or endorses this trajectory. Overall, it argues that the Court of Appeal endorsed the shift to intensity of review. While the Supreme Court appears to disapprove of intensity of review, particularly low intensity of review, it did not overturn the Court of Appeal’s position. In the context of judicial review of prosecution decisions, lower courts will apply the Court of Appeal’s precedent, and use a varying intensity approach.