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Admin Justice Flashcards

1
Q

What is administrative law/justice

A
  • Admin justice falls into rather administrative role of public law
  • guides and limits the executive and keeping it accountable
    -provides remedy against the state when things go wrong
  • discretion is necessary to modern government because you cannot anticipate the law

-in mordern gov discretion is necessary even though not everyone agrees with it. Therefore there need to be a check on these powers so not carried out arbitraryly

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2
Q

Different views of admin law -red light

A

Red light theory
-role of administrative law to confine the power of the state
-John lokey - if it is law it will be found in the books
-no room for arbitrariness, follows strict process

Critism
- doesn’t reflect modern goverment
-need discretion because can’t anticipate the law

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3
Q

Green light theory

A

Davis - where the law ends, discretion not tranny begins
-not to bar the executive form undertaking actions outside what is laid down in law but to ensure such discretion is used correctly
Admin law must confine structure and check such discretion
-nectary to morden government - without executive too Powerful
-not to restrict but make sure it acts effectively and fairly

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4
Q

Non judicial elements of admin law

A
  • the offical information act and access to information
    The ombudsman
    Tribunals
    Inquiries
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5
Q

“What is the ombudsman

A

The most influential green light system
- owes its existence to the ombudsman act 1975
- it investigates complaints arising out of the central and local goverment and try to bring a resolution
- Recipes and investigates complaints
- Protects the individual
Primary method in which complaints against the executive are resolved

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6
Q

Purpose of the ombudsman on a functional level

A

-Investigate complaints
-has jurisdiction to investigate prisons, no bad reatment of prisoners, can make surprise visits
- offical info act, intended to increase transparency
, consider decions and decide if they are justified
- functions to assist people to make decions under the disclosure act , if someone has identified a wrongdoing they can blow the wistel

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7
Q

Purpose of the ombudsman on a broader veiw

A
  • admin justice mechanisms
  • respond to the growth of a modern state, provided accountability
  • improve public decion making
  • Remedial purposss
    If they have the same complaint they can write and say how something can be improved
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8
Q

Advantages of the ombudsman

A
  • well respected - respected in goverment and law, know how goverment works and regulations
  • independaofficer of parliament - salary protected, A political recruitment process
  • broad jurisdiction - complaints can be for various reasons
  • wide scope
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9
Q

Advantage of ombudsman vs courts

A
  • ombudsman is free, no fee for filing a complaint
  • doesn’t have complexity’s around the formality of court eg evidence and process
  • you can phone, email and text, court is much more formal
  • isn’t bound by precedent - more flexible
  • not limited by questions that are legal in nature
  • There can be medication between the parties
  • Can recommend an apology to be issued
  • can make recommendations on things so other people don’t suffer
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10
Q

Disadvantages of ombudsman

A
  • limits on effectiveness - mechanics of last resort, have to have existed all other options
  • makes recommendations that are not binding - has not been a problem because every decision has been followed but could still happen in theory
  • could be levels to how much the decions are followed
  • share volume of work, isn’t an issue atm but could happen again
  • can’t access legally privlaged info
  • they can dismiss claims when the person has taken to long to lodge
  • they can decline to investigate
  • they can decide there is nothing in the complaint
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11
Q

What is the offical information act and access to information

A
  • constitutionally democracy requires acess to public information without it elections are meaningless
  • applies to statutory bodies - wide lists, SOES, departments, ministers
  • “sunlight is the best disinfect”
  • NZ has one of the most open governments post 1983
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12
Q

Purpose of The OIA AND LGOMIA (local goverment offical information and meetings act)

A
  • presumption of availability- shouldn’t have to ask
  • all information should be available to the people of nz
    , expect for exceptions
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13
Q

Exceptions to OIA

A

Some information will not be realised if it cause “prejudice or serious damage” eg
- security foreign affairs
- safety of a person
- economy of nz

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14
Q

Privacy act 1993

A

Falls under offical information
- opposite of OIA it protects private information and ensures it is kept private and used property rather than made a live to public
- green light insituion
- overseas the development of privacy principles

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15
Q

Disadvantages of OIA ,

A

-structural problems- most responses are on time but, 20 days is the response target, 97% are on target but are not a hard endpoint
- places don’t start doing anything until after 20 days, might reply but not with the information
- overly bureaucrat
- spend lots of time on requests
Variations between bodies
- it is debatable if all official and positions within the executive adhere to these principles
- has the offical information act archive it’s aspirational aim?

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16
Q

What are Inquires

A
  • inquires act 2013
    -often misunderstood by the public and policy maker s
  • established to investigate or examine a particular subject or event
  • they are NOT dispute resolution mechanism which is what lots of people think they are
  • inquisitorial
  • tribunals resolve, inquires investigate
  • used to inform the executive on particular isssues
17
Q

What are the 3 types of inquiries in nz

A
  • political inquires -
  • administrative/executive inquiries
  • independent/ judicial inquiries
18
Q

What is the 2013 inquires act

A
  • created as a result as a law commission report into the original 1908 act
  • aims to clarify and simplify the statutory framework for inquires in NZ rather than radically change the
    -hasn’t fundamentally changed the position of inquiries
    -classic example of green light approach
19
Q

Judicial review/role of the courts and inquiries

A

-often headed by a judge but they are not the courts
- the courts still have a roll in inquires, through the application of natural justice
- subject to review- sliding scale (not about what the inquiry is called but what it does)
- still question on whether courts involment reviewing inquiries are the correct balance between independence of the commission and the right of an individual

20
Q

Describe the leading case on the courts review (JR) of inquiries

A

-AIR NZ v Mahon
-PC
- worst air disaster in nzs history
- instead of following safe sight seeing protocol flew into mountain and killed 200 people
- it was the royal commissioners job to be the seeker of truth, make inquiries of evidence
- in the first inquiry they said the plan was flying too low and ruled it was a polite error
- in thr second inquiry the mahon inquiry said the plane wasn’t too low and that they were doomed from the beginning - “orchestrated litany of lies”
- JR was sought, concluded the royal commissioner had acted in adverse because he made the finding s and didn’t inform air nz- breach of natural justice- judicial review was successful
- so should the inquires act 2013 incorporate natural justice.

Could also argue that it there shouldn’t be JR on royal commissioner - does it go too far.
?

21
Q

Ombudsman and the courts

A

Disadvantages
- subject to JR which can take a away the benefits of a review system (although only really does so it a respectful way and if somethings gone really wrong)

22
Q

Argument for and against JR and admin justice (general)

A

Against
- as soon as you have review of these mechanisms it kinda defeats the purpose of avoiding the court process in the first place
- parliament has set up tribunals to deal with specific issues, allowing judicial review is allowing the courts to interfere and in a way saying that they can do a better job than others

For
- it’s is a constitutional function of the courts
- make sure admin justice is not working ultra vires
- Mahon case

23
Q

Diceys veiw of admin justice

A
  • executive can go as far as the law permits based on Diceys principles
  • the red light theory is to confine the state and replies on the principles of ultra vires.
    - according to dicey everything should be based on the written law
  • discretion is bad
  • the box picture
  • where law ends tyranny begins
24
Q

What is the green light system

A
  • devoted by authors such as k.c Davis
  • where the law end discretion not tyranny begins
  • role of courts not to bar the executive but make sure discretion si used correctly
  • admin law must confine, structure and check such discussion
25
Q

introduction for admin law

A
  • public law divided into 2 branches - constitutional and administrative
  • the highly effective non -judicial elements of NZs admin law are increasingly dominating our system of justice
  • while JR is very effective it can be too complex at time and is expensive
  • admin law is all about discretion

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