Can't see the science for the solicitors: judicial review of scientific research in light of NIWA's case

The existence of climate change remains an unjustifiably vexed issue worldwide. In New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd, sceptics’ attempts to challenge NIWA’s temperature records allowed the Court to extend its reach into the heart of the scientific research process. Whilst this paper supports Venning J’s determination that NIWA’s decisions were within the Court’s jurisdiction for review, his finding that individuals might suffer harm as a result of them is shown to be unjustified. Furthermore, the Court’s inherent unsuitability to addressing matters with high scientific contents, due to its adversarial nature and judges’ lack of scientific training, supports a finding of non- or partial justiciability. Non-justiciability is here rejected for allowing scientists behaving fraudulently to escape rebuke. The standard of deference Venning J attempts to introduce is similarly flawed as it allows unwary judges to unintentionally judge matters of science. Concerns are also raised that research might stagnate if scientists must worry about judicial scrutiny of their work. Thus, a standard of flagrant impropriety, or “fraud, corruption or bad faith”, is argued to be the ideal threshold for permitting judicial review of scientific research.