From the perspective of legal doctrine, when an administrative agency in New Zealand
revises its interpretation of the law, the law itself remains unchanged.3 The agency has either shifted
from a correct understanding of the law to an incorrect one or (as I will suggest happened here)
from an incorrect understanding of the law to a correct one. If the legal interpretation that the
administrative agency adopts is, at either point, erroneous, then it can be corrected in the High
Court by way of judicial review.
That is the position in theory.4 But in reality, administrative interpretations of the law can be
far more significant than this theoretical position discloses. In some (perhaps many) areas of
government administration, the possibility of legal challenge is, for a range of potential reasons,
remote.5 The s 9(1)(c) power to grant citizenship in exceptional circumstances is a case in point.
Although this power has been part of New Zealand law since 1977,6 I can find no example of its
exercise being subject to legal challenge. The reasons for this are not hard to surmise. They include
cost,7 the inability of judicial review proceedings (most especially in cases concerning a high-level
ministerial exercise of power such as this one) to guarantee a concrete outcome for a successful
plaintiff, and the fact that, in many citizenship cases, the likely delay in bringing judicial review
proceedings to fruition will counteract any benefit that the applicant hoped to gain from the special
grant of citizenship in the first place.8
Whatever the reasons, the practical effect of the absence (and absence of any significant
prospect) of judicial guidance on the meaning of s 9(1)(c) is that administrative interpretations of the
statute function as de facto statements of the law. This makes the decision of the Department of
Internal Affairs to revise its interpretation of s 9(1)(c) an important matter – one that is of as much
practical significance to potential applicants for citizenship as if the change had occurred by way of
judicial decision.9
One characteristic of such shifts in the law-as-applied is that they can sometimes be less
transparent, and less accessible, than shifts in the law that occur through the formal mechanisms of
3
For example Tauranga Boys College Board of Trustees v International Education Appeal Authority [2016]
NZHC 1381, [2016] NZAR 1029 at [20]; Earthquake Commission v Insurance Council of New Zealand Inc [2014]
NZHC 3138, [2015] 2 NZLR 381 (Full Court) at [155]–[156]; Dandelion Investments Ltd v Commissioner of Inland
Revenue [2003] 1 NZLR 600 (CA) at [74]; Philip A Joseph Constitutional and Administrative Law in New Zealand
(4th ed, Brookers, Wellington, 2014) at 959–960; Matthew Smith New Zealand Judicial Review Handbook (2nd
ed, Thomson Reuters, Wellington, 2016) at [64.5.1]; GDS Taylor (assisted by JK Gorman) Judicial Review: A New
Zealand Perspective (2nd ed, LexisNexis, Wellington, 2010) at [15.59].
4
This assumption that legal interpretations arrived at by administrative decision-makers can be judicially
reviewed to a standard of correctness is not shared in all common law jurisdictions: see for example Chevron
USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984); Dunsmuir v New Brunswick 2008 SCC 9,
[2008] 1 SCR 190.
5
See Peter Cane Administrative Law (4th ed, Oxford University Press, Oxford, 2004) at 403; Carol Harlow and
Richard Rawlings Law and Administration (3rd ed, Cambridge University Press, Cambridge, 2009) at 201, 712–
714.
6
Initially introduced as Citizenship Act 1977, s 9(1)(d).
7
See Harlow and Rawlings, above n 5, at 714–716.
8
As we will see, the significance of s 9(1)(c) for many applicants is that it provides a route to circumvent the
standard eligibility requirement that the applicant must have resided in New Zealand for 1350 days:
Citizenship Act 1977, s 8(2)(b).
9
See Matthew Palmer “What is New Zealand’s constitution and who interprets it? Constitutional realism and
the importance of public office-holders” (2006) 17 PLR 133 at 148–150 (developing a similar point but
specifically in relation to the role of public office-holders in interpreting New Zealand’s constitution).
2
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