Administrative Justice

Question 1

Limits of judicial review

Answer 1

Expensive, complex, specialist, the wealthy and pressure groups use it

Question 2

Non judicial elements of administrative law

Answer 2

Vital and offer solutions to citizens without great expense or complexity. These elements can be viewed as a response to the growth of the state and the need for accountability.

Question 3

Discretion

Answer 3

The liberty to act at pleasure

Question 4

Red light theory

Answer 4

Anti-discretionary view – traditional model adopted in UK and NZ. In this model the role of the law is to restrain the executive and ensure that is stays within the confines laid down by Parliament. Relies upon ultra vires (beyond powers) for its legitimacy

Question 5

John Locke

Answer 5

Where law ends tyranny begins

Question 6

Albet Venn Dicey

Answer 6

Where there is discretion, there is room for arbitrariness

Question 7

Green light theory

Answer 7

Role of the law was not to bar the executive from undertaking actions outside what is laid down specifically in law, but to ensure that such discretion was used correctly (make good decisions). Administrative law must ‘confine, structure and check’ such discretion

Question 8

KC Davis

Answer 8

Where law ends, discretion begins

Question 9

NZ System

Answer 9

“Never quite thrown off the shackles of the Red Light Diceyan tradition”. Lights are always set at amber

Question 10

Ombudsman

Answer 10

Established 1964. Evolved from an institution of limited scope and uncertain competence to become the primary method by which complaints against the executive are resolved in NZ today. Emphasises how many of the publics issues with the state can be resolved with the most simple of actions

Question 11

Sir Guy Powells

Answer 11

“The Ombudsman is Parliament’s [person], put there for the protection of the individual, and if you protect the individual, you protect society”

Question 12

Ombudsman Act 1975

Answer 12

• Primary role = to investigate complaints arising out of the actions of central and local government agencies
• S 22(1): wide scope of investigation
• Schedule 1: wide jurisdiction
• S 25: Ombudsman not subject to judicial review (except on lack of jurisdiction grounds). Wyatt Co Ltd v Queenstown Lakes District Council: Courts will only intervene when Chief Ombudsman is plainly and demonstrably wrong”
• S 13(3): own motion investigations

Question 13

Ombudsman procedure

Answer 13

• Focus on the complaint
• To assess validity, process is investigatory and inquisitorial
• When investigation completed, Ombudsman can make a finding that upholds or rejects the complaint

Question 14

Critical finding on the grounds of s 22(1)(b)

Answer 14

1. Illegality
2. Unreasonableness made under an unreasonable enactment
3. Based on a mistake
4. Using a discretionary power wrongly

Can also confirm the decision of the public body was justified

Question 15

s 13(a) OA 1975

Answer 15

May not investigate where an appeal right to a Court or Tribunal exists

(investigation a remedy of last resort)

Question 16

s 17 OA 1975

Answer 16

May refuse to investigate a complaint if it has been known about but not acted on for 12 months, there is an adequate remedy available, the complaint is trivial, or further investigation is unnecessary

Question 17

s 22(3) OA 1975 - remedies

Answer 17

Focused on righting the actual wrong.

Further consideration, cancelled/changed decision, change of practice, enactment should be reconsidered, the giving of reasons.

There are no limits as to the extent of these remedies – in effect the exact nature of any recommended remedy is left to the Ombudsman

‘Recommended’ because Ombudsman have no powers to enforce their decision. Based entirely upon powers of persuasion and the respect in which they are held

Question 18

Ombudsman Advantages

Answer 18

• Free
• Highly respected
• Informal
• Multiple outcomes

Question 19

Ombudsman Disadvantages

Answer 19

• Recommendations not binding
• Lack of funding
• Inability to match demand (sheer volume of complaints)
• Lack of respect from executive

Question 20

Joseph on access to information

Answer 20

The lifeblood of liberal democracy

Question 21

Brandeis J

Answer 21

Sunlight is the best disinfectant

Question 22

Provision of public information

Answer 22

One of the most fundamental aspects of a functioning democracy. Without it, democratic elections become meaningless

Question 23

Access to information

Answer 23

Fundamental to individuals ability to gain redress for alleged wrongs done by administration

Balance must be struck between individual and collective information

Prior to 1983 NZ operated behind veil of secrecy (Official Secrets Act 1951)

Introduction of Ombudsman and increased computing power

Question 24

Three key statutes that provide information regime

Answer 24

OIA 1982
Local government official information and meetings act 1987
Privacy act 1993

Question 25

OIA 1982

Answer 25

• Applies to public bodies defined by a statutory list
• S 4: “to promote democratic participation, political accountability and good government”
• S 5: presumption of availability
• S 6, 7: Conclusive reasons for not releasing information. E.g. Information release causing prejudice or serious damages to security, foreign affairs law and order, safety of any person, economy of NZ
• S 9: other – personal privacy, trade secrets. Can be overridden if the public interest in favour of their release outweighs the interests listed in the Act
• S 18: practical reasons (e.g. contempt of court, contrary to primary legislation, frivolous
• Requests may be made in any form and communicated by any means, and does not need to refer to the Act (s 12(1AA)). Once a request is made, the body has 20 working days to respond

Question 26

Privacy Act 1993

Answer 26

Aims to ensure private information is kept private and used properly, rather than being made available to the public. 12 privacy principles outlined in Act

Question 27

OIA problems

Answer 27

Structural problems, playing the system, overly bureaucratic

Question 28

OIA advantages

Answer 28

1. No court option like this
2. Availability
3. Free to use
4. Important to administrative law for transparency and confidence in the system, and knowing what you are challenging

Question 29

Specialist Justice

Answer 29

Not a feature of common law systems in English tradition but advantages are becoming more accepted. Resulted in numerous specialist courts created while the explosion of tribunals has been quite astounding (NZ has 100+)

Question 30

Why specialist justice?

Answer 30

Need to have specialists working in areas of complexity and technicality, the appropriateness of judges to be resolving issues of policy or discretion and the suitability of the formal court process for particular dispute

Question 31

Specialist Justice problems

Answer 31

consistency, bias (if specialists are from community they’re adjudicating over) and where the decisions ave impacts beyond the specific subject area

Question 32

Reasons for avoiding formal court structure

Answer 32

Cost, speed of decision, access to tribunal and accessibility to the individual). Useful in ensuring advantages of the ‘repeat player’ are minimised

Question 33

Types of tribunals

Answer 33

1. Inter-partes
2. Regulatory/professional (regulate particular fields or professions)
3. Administrative (To allow for disputes to be heard when you have problems against administration)

Question 34

Tribunals advantages

Answer 34

1. Cheaper
2. Informal and set own procedures – tailored (not as procedually focused as courts)
3. More inquisitorial (less legalistic with need for lawyer)
4. Can examine decision itself (judicial review focused on process)
5. Another alternative to judicial review

Question 35

Tribunal operation

Answer 35

Each tribunal operates separately, and has an individual relationship with the executive and courts. The varied nature of NZ’s system can be regarded as one of its key features, and could be argued as a benefit for the system as a whole.

Question 36

Tribunal limitations

Answer 36

Specialist justice and the ability to tailor may mean inconsistency in decisions. Subject to judicial review

Question 37

Critique of current system of administrative tribunals

Answer 37

1. lack of coherence
2. lack of clarity in relation to access and use
3. lack of independence