Q14: How quickly should the decision be made?
The timeliness of decision-making can also have an impact on the ability to withstand challenge. A failure to make a timely decision may render it invalid or unlawful.
A decision may be required to be made within a statutory timeframe (e.g. “not later than 20 working days”), by a certain date (e.g. “before the close of 31 December 2020”), or within regular intervals (e.g. “once every six months”).
A decision-maker should start the process of making the decision sufficiently in advance that the decision will be complete on or before the deadline. A decision-making process that has been commenced, but not concluded, before the deadline may be invalid.
Where no statutory deadline is fixed, a decision should still be made within a reasonable period. A decision that is made unreasonably late may also be invalid.
Where consultation is required, a sufficient period of time should be provided for submissions to be drafted and received. If a consultation period is too short, the decision may be unfair for that reason.
Where a statute stipulates that a decision must be made within a number of ‘working days’, you should check with your in-house lawyer the appropriate definition of ‘working day’ in the context of the relevant legislation—different statutes apply different definitions of this term.
| A school closure decision made before the start of the school year (to enable transfer of students before neighbouring schools started for the year) was argued to be unreasonable due to its haste. The High Court held otherwise, finding that the speed and timing of the decision was ultimately a policy matter, and that the speed of the decision was not so unreasonable that a Minister faced with making that decision could not have made it that quickly. |
| Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 at [98] |