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Public Law > The Executive Continued - My notes > Flashcards

The Executive Continued - My notes Flashcards

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1
Q

What are the different forms of accountability? + source

A
  • formal
  • informal
  • legal
  • constitutional
  • political
    From Palmer and Knight
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2
Q

What is the Controller and Auditor General?

A
  • ONE PERSON!
  • Have both a financial role and role in doing audits
  • “Parliament’s financial watchdog” (Palmer & Knight)
  • Office established under Public Audit Act 2001
  • Independent Officer of Parliament – appointed by GG on recommendation of the House (ss 7 and 9), NOT government
  • They report to parliament
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3
Q

What is the Controller and Auditor General’s financial controller role?

A

Key functions:
- Look at appropriations of parliament? (22)and make sure that govt funding falls within them
- Make sure it spends the money for the purpose it is allowed to

  • Controller “ensures government spending is lawful and consistent with Parliament’s appropriations” (Palmer & Knight)
  • Remember: Constitution Act 1986, s 22 = Executive cant tax/spend money without parliament’s consent
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4
Q

What is the Controller and Auditor General’s auditing role?

A

In this role, the Auditor-General will examine financial statements, look at their own audit plan, review performance, look to legislation.
They ask:
- Are they complying with what they need to?
- Are they compliant with government policy?

Not role to look at policy’s themselves but just whether they are being followed!!! - cannot politicise the office – need to be A political and impartial

Examines annual financial statements (s 15); audits plans; reviews performance (for compliance with statutory obligations, waste, lack of probity or financial prudence, compliance with government policy (but not the policies themselves) (s 16)

Auditor-General “ensures the activities of government departments and other organisations [eg local government] are prudently undertaken and accurately reported” (Palmer & Knight)

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5
Q

When can the Auditor-General enquire into something?

A

Can inquire on request or own volition (s 18)
OR
They can look at things because they want to themself

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6
Q

Example of the Controller and Auditor General’s role:

A

Inquiry (by Controller and Auditor General) into Government’s preparedness to implement the 2030 Sustainable Development Goals

  • Own motion with international encouragement
  • “Nearly six years after it adopted the 2030 Agenda, we expected the Government to have established a foundation from which to successfully achieve the SDGs by 2030. There is still time for the Government to respond to our recommendations and progress the planning, implementation, and monitoring needed to achieve the SDGs by 2030.”
  • The international community of Auditor Generals decided to have a look at how their governments were doing with these sustainable development goals
  • NZ AdG did this
  • Big audit of govts performance
  • Found it to be behind
  • Can audit ANYTHING
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7
Q

What can the Controller and Auditor General look at?

A

Examines annual financial statements (s 15); audits plans; reviews performance (for compliance with statutory obligations, waste, lack of probity or financial prudence, compliance with government policy (but not the policies themselves) (s 16)

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8
Q

Who is the Parliamentary Commissioner for the Environment?

A

They are an officer of parliament (not really a comissioner, just their title)
- Appointed by GG on the recommendation of the House

Note:
- This is a pretty broad role
- Slightly overlaps with AdG role
- Can only look into environmental cases

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9
Q

What was Space invaders?

A

A review of how NZ manages weeds that threaten native ecosystems (2021)
- Parliamentary Commissioner for the Environment
- About how we are managing the plant pests in NZ?
- Ask are we doing the best we can?
- Answer: no
- Why: complex, focused on border and pre-border measures, failure to prioritise, lack of clear leadership, badly coordinated, information is out of date and not well managed.

7 recommendations made.
- mere recommendations
- weren’t followed
- Sometimes govt wont follow them
- But would be other issues if they could make formal judgements

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10
Q

Can the Parliamentary Commissioner for the Environment make formal judgements?

A

No, only recommendations

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11
Q

Who are the ombudsmen? Brief

A

Officers of parliament who report to parliament
- “The Ombudsman is Parliament’s man, put there for the protection of the individual, and if you protect the individual you protect society.” - Sir Guy Powles (first Ombudsman)
- More modenly described as: “an exemplar of non-judicial administrative justice and accountability” (Palmer and Knight)

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12
Q

What do the ombudsmen do?

A

Investigate complaints about maladministration under the Ombudsmen Act 1975

Investigate and review decisions on requests for official information under:
- Official Information Act 1982
- Local Government Official Information
- Meetings Act 1987

Inspect conditions in prisons and aged care homes under the Crimes of Torture Act 1989

Monitor NZ’s compliance with obligations under the UN Convention on the Rights of Persons with Disabilities

Provide advice to and investigate complaints from whistleblowers under the Protected Disclosures Act 2000

Support the Petitions Select Committee

Look after petitions taken to parliament

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13
Q

Who appoints the ombudsmen?

A

Appointed by the GG on the recommendation of the House

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14
Q

What must the ombudsmen be?

A

They must be Independent and impartial

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15
Q

What is a matter of administration? (ombudsmen)

A
  • We are looking at decisions of director generals /administrativeheads/ administrative functions
  • But not the high level stuff – not ministers
  • Confers general jurisdiction of the ombudsmen
  • Broad
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16
Q

What are the functions of the ombudsmen under s 13?

A

Investigate any decision or reccomendation:
- Petitions reffered by any committee of the House (s 13(4))
- The PM can also refer any matter for investigation and report, with the consent of the Chief Ombudsman (s 13(5))
- The Ombudsman can investigate notwithstanding that the legislation says the decision being investigated shall be final (s 13(6))

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17
Q

What are the Parliamentary Commissioner for the Environment’s functions? Where are they set out?

A

Functions: Environment Act 1986, s 16
- review government agencies and processes managing natural + physical resources
- investigate effectiveness of environmental planning + management by public authorities
- investigate any matter where the environment may be or has been adversely affected and advise the appropriate public body of the preventive or remedial action which should be taken
- report to the House on any petition, Bill, or other matter that may have a significant effect on the environment
- inquire into any matter that has or may have a substantial and damaging effect on the environment

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18
Q

When can the Controller and Auditor General look at things?

A

Can inquire on request or own volition (s 18)

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19
Q

When can the ombudsmen look at something?

A

Can inquire on request or own volition (s 13(3))

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20
Q

What can the ombudsmen not investigate?

A
  • decisions where there is a statutory right of appeal on the merits (unless unreasonable to expect that to be resorted to) (s 13(7))
  • decisions of legal advisors to the Crown
  • decisions relating to the Police (s 13(7))
21
Q

What are the Ombudsmen basic process rules?

A
  1. Complaints can be made orally or in writing
  2. Ombudsmen first inform the Chief Executive of the department concerned
  3. Investigations are private
  4. Wide powers to hear and obtain information - No evidence rules
  5. No person is entitled to be heard unless there appear sufficient grounds of adverse affect to a person or body
  6. Not subject to the Official Information or Privacy Act
22
Q

Can the ombudsmen only look into lawfulness?

A

No, they can look into more than this?

23
Q

What may the ombudsmen find?

A
  • the decision was unlawful, unreasonable, unjust, oppressive, improperly discriminatory, based on a mistake of law or fact, or simply wrong
  • the law / regulation practice the decision was based on was unreasonable, unjust, oppressive, or improperly discriminatory
  • power has been exercised for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations
  • reasons should have but were not given for the decision
24
Q

What do the ombudsmen make?

A

Recommendations.

25
Q

What do the ombudsmen rely on for their recommendations to be taken seriously?

A

Persuasion and reputation.

26
Q

Can the ombudsmen be liable for their actions in the exercise of their statutory functions?

A

No, they are protected from liability.

27
Q

Can ombudsmen decisions be subject to JR?

A

Yes under the OIA.

28
Q

What type of matters do the ombudsmen look into?

A

Matters of administration.

29
Q

What are commissions of inquiry?

A

Commissions appointed by Government and report (with recommendations) to Government.

Report on anything … ad hoc Erebus, Pike River, the unfortunate experiment, Auckland super city, abuse in state care, etc.

30
Q

Can commissions of inquiry be appointed as a matter of prerogative?

A

No, they used to be able to but not anymore.

31
Q

What kind of process do commissions of inquiry follow?

A

Typically inquisitorial instead of adversarial.

32
Q

Who defines the procedures of commissions of inquiry.

A

The commission itself.

33
Q

What are tribunals?

A

Bit of a dogs breakfast, like there is a very diverse range of things.
Might do things such as:
- Deciding disputes between citizens
- First instance determination of disputes between citizen and state
- Reviewing/appealing administrative decisions
- Professional
- Licensing
- Investigating matters for Ministers or Parliament

34
Q

What do the Human Rights Review Tribunal do?

A

Looks into complaints made to the human rights comission about breach of human rights or complaints to the privacy comissioner about breaches of privacy

35
Q

Can the Human Rights Review Tribunal make decisions?

A

Yes, the Human Rights Act 1993 allows it to make decisions.

36
Q

What is the waitangi tribunal?

A
  • Makes recommendations about Crown action inconsistent with Treaty “principles”.

Through hearing the claims, NZ has become better informed about our history since 1835 and has helped to educate us as a country.

37
Q

Does the Treaty of Waitangi Act bind the crown?

A

Yes, s 3. Clarifies that the sovereign is not above the law.

38
Q

Which section sets out who is on the Waitangi Tribunal?

A

S 4 TOW Act 1975

39
Q

What are the Waitangi Tribunal’s functions under s 5?

A
  • to inquire into and make recommendations on s 6 claims
  • to examine and report on proposed legislation referred under s 8
  • The tribunal must look at both versions of the treaty
  • They have authority to determine their meanings to decide claims
40
Q

Who can bring a claim to the Waitangi Tribunal?

A
  • Must be māori to bring a claim (Association not blood thing)
  • Must be likely to suffer some sort of prejudicial effect
  • Prejudicial effect caused by one of the things in a, b, c or d ,
  • This thing must be inconsistent with the principles of the treaty
41
Q

What are the claims that can be made under s 6 TOW Act 1975?

A
  • any ordinance of General Legislative Council / Provincial Legislative Council
  • any Act, regulation, proclamation, order, other statutory instrument
  • any policy / practice adobted by (or on behalf of) the crown
  • any action by (or on behalf of) the crown
    All must be AFTER ToW signed
42
Q

Has the jurisdiction of the tribunal changed over the years?

A

Yes

43
Q

When must the WT inquire into claims?

A

Always unless s 6AA or s 7 apply, historic settlement has already happened or to do with commercial fishing

44
Q

What is the limitation in s 6AA ToW Act?

A

Only claims since September 21 1992 can be investigated

45
Q

What is s 7 ToW Act?

A

Trivial / vexatious / frivolous claims don’t need to be investigated

46
Q

What power does the Waitangi Tribunal have?

A

Can make reccomendations
- Compensating for prejudice
- Removing prejudice
- Preventing prejudice from happening again

47
Q

What can the Waitangi Tribunal not recommend? Why?

A

s 6(4A) Tribunal cannot recommend the return of private land
- protects the rights of private land owners

48
Q
A

Public Law (12 decks)

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