Q16: What weight applies to different factors?
Once irrelevant matters are put aside, it is up the decision-maker to decide what weight attaches to any relevant factors, unless: the statute says otherwise; the weighting is palpably unfair or unreasonable; or you have promised otherwise.
The Courts are traditionally hesitant about substituting or second-guessing the weighting of different considerations by a decision-maker. However, there are a variety of reasons why some factors may have to be given greater or lesser weight.
First, a statute might require that a matter is given more or less weight, either explicitly or by implication
| Section 7 of the Resource Management Act 1991 requires decision-makers to “have particular regard to” a set of specified considerations. |
In addition, while respect for the role of the original decision-maker remains high, the Courts may intervene if the weightings are considered to be substantially unfair, or beyond the limits of reason – although this remains a high bar and the excess or insufficiency must be palpable. [See Annex 2 for more detail].
It is also possible to create a legitimate expectation on the part of a third party (through a statement made or by past practice) that a matter will be given weight or given specific weight.
| The best interests of an affected child in an immigration case were held to be so important as to be a “primary” consideration for a decision-maker. |
| Huang v Immigration [2008] NZCA 377 |
| A decision by the Commerce Commission not to meet the interest commitments of a milling company was overturned because assurances had been provided to the company and a contrary interim practice put in place. The company was not told the arrangements were temporary and had relied on them. The Commission then failed to give enough weight to these factors. |
| Northern Roller Milling Co v Commerce Commission [1994] 2 NZLR 747 (HC) |