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AA PUB 204 > tribunals and officers of parl - ombudsman > Flashcards

tribunals and officers of parl - ombudsman Flashcards

1
Q

what does the ombusman do

A
  • finds that nz govt isn’t doing enough and calls on them to do more
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2
Q

the ombusman handles

A
  • complaints and investigate the administrative conduct of state sector agencies
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3
Q

we look at the ombudsman under the

A

OIA act and OMBUDSMAN ACT

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4
Q

the ombudsman has a

A

broad power to investigate as per s13(1) OA

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5
Q

s13(1) OA

A
  • INVESTIGATES any decision made or act done by any person or body of persons in their personal capacity by any dept or organisation in schedule one
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6
Q

what is sechdule one referred to in s13(1) OA

A

includes govt ministers and dept, crown entities, soes

over 4000 agencies

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7
Q

the jurisdiction of s13(1) OA is

A

confined to low level administrative measures

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8
Q

ombudsmane investigates decisions under act

A

can investigate decision made under an act even if the decision is said to be final

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9
Q

ombusman can pursue complaints or investigate under

A

its own volition or it can have matters referred to it by for example the pm for committees of the house for petitions

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10
Q

when are two instances that the ombudsman cannot investigate

A
  1. where legislation gives a right of appeal on the merits unless o believes that it is not reasonable for the effected person to pursue their right of appeal
  2. decisions of legal advisors to the crown or matters regarding the POLICE
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11
Q

WHAT IS the first step of the ombudsman investigation process

A
  1. complaints can be made orally or in writing but should be made in writing
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12
Q

WHAT IS the second step of the ombudsman investigation process

A

ombudsman will first inform/warn the department under investigation

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13
Q

what is the privacy of the investigation by the ombudsman

A

investigations are conducted in private, not subject to the privacy act or OIA

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14
Q

omb powers to gain info

A

the powers are very wide

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15
Q

after the investigation, o makes

A

recommendations under s22 oa

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16
Q

ground of recommendations for the ombudsman

A

broader than judicial review, but is similar to JR

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17
Q

the o can make recommendations on

A

pretty much anything, e.g conduct, the law itself, decisions, uses of discretionary power

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18
Q

whats is the difference of JR to the ombudsman review

A

the o can make recommendations on the law itself where as JR cannot

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19
Q

are the recommendations make by the o binding?

A

no they are nit, unless in relation to the OIA, however they are very persuasive

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20
Q

where are the recommendations sent in order

A
  1. dept and minsters concerned
  2. if not followed they are sent to the pm or the house
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21
Q

as per ss 25 and 26

A

the o cannot be sued for their recommendations

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22
Q

what are the advantages of going to the o rather than the courts

4

A
  1. broader grounds
  2. cheaper and more accessible
  3. more privacy
  4. can be inquisitorial
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23
Q

what are the advantages of going to the o rather than the courts

expalin

  1. broader grounds
A

it is concerned with bad decisions made within the law not just ultra vires actions as per JR

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24
Q

OIA

A

Allows people to access official information

25
Q

what is official information

A

information held by a department, minister or organisation

26
Q

department is

A

public service agencies as list in schedule one but not the courts, tribunals or royal commissions

27
Q

purpose of the oia

A

to increase accountability and accessibility to official info and promote executive accountability and good government

28
Q

the purpose of the oia is also to withhold

A

information to the extent consist ent with the public interest and the preservation of personal privacy

29
Q

what is the principle of avaiblity

A

s5 - information should be made available unless there is good reason for withholding it

30
Q

who can make a request
and what sections

A

any citizen or permanent resident s12

31
Q

how long to decide whether to grant info
and what section

A

request has 20 working days to decide whether to grant access to the information s15

32
Q

what does s15a say

A

extensions to the 15 days can be granted if large quantity or consultation nesseacry

33
Q

there may be …. as per s15

A

charges, small charges for printing or Labour costs

34
Q

s17

A

info may have redacted portions

35
Q

citizens/ residents are entitled to

A

written statement as to why a decision or recommendation was made about you

36
Q

although there is a presumption of avaibalibity under s5…

A

under s18, info can be refused

37
Q

under section 6 lists CONCLUSIVE reasons for withholding information
what do these include

A
  • matter of nation safety
  • protects someones safety
  • maintenance of the law
38
Q

in order to withhold info based on the reasons in section 6, disclosing the info must be

or in this case they should be

A

likely, on the balance of probabilities to bring the feared effect

Kelsey = real or significant possibility

39
Q

the reasons for withholding info doesn’t need to be

A

weighed up against the public interest in disclosure, if one of the reason applies the info will not be shared

40
Q

under section 9 lists OTHER reasons for withholding information
what do these include

A

PRIVACY, health, cabinet discussions

41
Q

under s9 other reasons, withholding must be

or in this case they should be

A

nessacery to avoid the feared s9 effect

Kelsey = nessecary = essential to protect or avoid consequence

42
Q

the reasons in s9 are

A

not conclusive so they need to be balanced against the public interest in disclosure

43
Q

if the s9 reason outweighs the public interest in disclosure

A

it must be disclosed

44
Q

s18 oia

A

administrative reason for withholding, info will b available soon

45
Q

section 10 oia

A

if confirming to acknowledging the mere existence of info would be prejudicial for reason under 6 7 or 9 the dept can write that they can neither confirm nor deny the existence of the info

46
Q

what is s7 oia

A

Special reasons for withholding official information related to the Cook Islands, Tokelau, or Niue, or the Ross Dependency

47
Q

Kelsey v minister of trade

facts

A

Kelsey had their request fro info regards the transpacific partnership agt negotiation declined by the minister of trade

k sought JR clAMING the oia was applied incorrectly

48
Q

based on Kelsey

likely in s6 means

A

real or significant possibility

49
Q

based on Kelsey

nescasery in s9 means

A

essential to protect or avoid consequences

50
Q

hc said in Kelsey v minister of trade

A

blanket approach is unlawful

the minsters was retired to consider each request of info under s6 s9 s18

51
Q

if there is uncertainty regarding s9 of the test

A

decision is made in favour of the release

52
Q

Kelsey v minister of trade held and key takeaway

A

decision was quashed and asked to be remade

the blanket approach is unlawful

53
Q

ombudsmen review

A

if person reuqtesiing info believes they have had their request wrongly declined there is a review procedure

54
Q

what is the first step of the decinlees process

A

decinlee must go to ombudsman who can investigate the decision and make non binding recommendations to govt dept and minsters

55
Q

ombudsman who can investigate the decision to withhold Oi under

A

s28

56
Q

ombudsman make non binding recommendations to govt dept and minsters under

A

s30

57
Q

s31

A

pm certifies that disclosure is likely to prejudice security or defence, the o cannot release

58
Q

s32

A

public duty to observe the recommendation arises after 21 days

59
Q

if ombudsman does not prove a satisfactory result ..

A

go to court

AA PUB 204 (47 decks)

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