Q20: Is your proposed action proportionate?

Are the options proportionate responses to the problem? Have all options been properly considered, especially when options impact on fundamental rights?

Decisions involving impacts on fundamental rights are increasingly vulnerable to challenge as disproportionate.  The cases fall into three general categories:

  1. Cases considering the proportionality of penalties;
  2. Cases considering the proportionality of delegated legislation, bylaws and rules;
  3. Cases considering proportionality as a general, stand-alone ground of judicial review.

The statutory context may also impliedly rule out a challenge on the basis of proportionality, especially when a statute anticipates a decision- maker making a decision of a binary nature.

A decision by the Institute of Chartered Accountants to impose penalties was held to be excessive in the context of the breach by a member.  The penalties were imposed primarily due to the member’s delay in responding to a complaint investigation being undertaken by the Institute (with the complaint that was the subject of the investigation eventually being withdrawn). The Institute imposed a suspension, fine, review of practice, mandatory training, censure, and costs due to the delay.  These penalties were held to be disproportionate and overturned.
Institute of Chartered Accountants of New Zealand v Bevan [2003] 1 NZLR 154
The Court of Appeal refused to overturn a District Court decision on extradition on proportionality grounds.  The specific statutory role provided to the District Court under the relevant immigration legislation left “little or no room for the proportionality approach”.
Mailley v District Court at North Shore [2016] NZCA 83