tribunals and officers of parl - ombudsman Flashcards
what does the ombusman do
- finds that nz govt isn’t doing enough and calls on them to do more
the ombusman handles
- complaints and investigate the administrative conduct of state sector agencies
we look at the ombudsman under the
OIA act and OMBUDSMAN ACT
the ombudsman has a
broad power to investigate as per s13(1) OA
s13(1) OA
- 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
what is sechdule one referred to in s13(1) OA
includes govt ministers and dept, crown entities, soes
over 4000 agencies
the jurisdiction of s13(1) OA is
confined to low level administrative measures
ombudsmane investigates decisions under act
can investigate decision made under an act even if the decision is said to be final
ombusman can pursue complaints or investigate under
its own volition or it can have matters referred to it by for example the pm for committees of the house for petitions
when are two instances that the ombudsman cannot investigate
- 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
- decisions of legal advisors to the crown or matters regarding the POLICE
WHAT IS the first step of the ombudsman investigation process
- complaints can be made orally or in writing but should be made in writing
WHAT IS the second step of the ombudsman investigation process
ombudsman will first inform/warn the department under investigation
what is the privacy of the investigation by the ombudsman
investigations are conducted in private, not subject to the privacy act or OIA
omb powers to gain info
the powers are very wide
after the investigation, o makes
recommendations under s22 oa
ground of recommendations for the ombudsman
broader than judicial review, but is similar to JR
the o can make recommendations on
pretty much anything, e.g conduct, the law itself, decisions, uses of discretionary power
whats is the difference of JR to the ombudsman review
the o can make recommendations on the law itself where as JR cannot
are the recommendations make by the o binding?
no they are nit, unless in relation to the OIA, however they are very persuasive
where are the recommendations sent in order
- dept and minsters concerned
- if not followed they are sent to the pm or the house
as per ss 25 and 26
the o cannot be sued for their recommendations
what are the advantages of going to the o rather than the courts
4
- broader grounds
- cheaper and more accessible
- more privacy
- can be inquisitorial
what are the advantages of going to the o rather than the courts
expalin
- broader grounds
it is concerned with bad decisions made within the law not just ultra vires actions as per JR
OIA
Allows people to access official information
what is official information
information held by a department, minister or organisation
department is
public service agencies as list in schedule one but not the courts, tribunals or royal commissions
purpose of the oia
to increase accountability and accessibility to official info and promote executive accountability and good government
the purpose of the oia is also to withhold
information to the extent consist ent with the public interest and the preservation of personal privacy
what is the principle of avaiblity
s5 - information should be made available unless there is good reason for withholding it
who can make a request
and what sections
any citizen or permanent resident s12
how long to decide whether to grant info
and what section
request has 20 working days to decide whether to grant access to the information s15
what does s15a say
extensions to the 15 days can be granted if large quantity or consultation nesseacry
there may be …. as per s15
charges, small charges for printing or Labour costs
s17
info may have redacted portions
citizens/ residents are entitled to
written statement as to why a decision or recommendation was made about you
although there is a presumption of avaibalibity under s5…
under s18, info can be refused
under section 6 lists CONCLUSIVE reasons for withholding information
what do these include
- matter of nation safety
- protects someones safety
- maintenance of the law
in order to withhold info based on the reasons in section 6, disclosing the info must be
or in this case they should be
likely, on the balance of probabilities to bring the feared effect
Kelsey = real or significant possibility
the reasons for withholding info doesn’t need to be
weighed up against the public interest in disclosure, if one of the reason applies the info will not be shared
under section 9 lists OTHER reasons for withholding information
what do these include
PRIVACY, health, cabinet discussions
under s9 other reasons, withholding must be
or in this case they should be
nessacery to avoid the feared s9 effect
Kelsey = nessecary = essential to protect or avoid consequence
the reasons in s9 are
not conclusive so they need to be balanced against the public interest in disclosure
if the s9 reason outweighs the public interest in disclosure
it must be disclosed
s18 oia
administrative reason for withholding, info will b available soon
section 10 oia
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
what is s7 oia
Special reasons for withholding official information related to the Cook Islands, Tokelau, or Niue, or the Ross Dependency
Kelsey v minister of trade
facts
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
based on Kelsey
likely in s6 means
real or significant possibility
based on Kelsey
nescasery in s9 means
essential to protect or avoid consequences
hc said in Kelsey v minister of trade
blanket approach is unlawful
the minsters was retired to consider each request of info under s6 s9 s18
if there is uncertainty regarding s9 of the test
decision is made in favour of the release
Kelsey v minister of trade held and key takeaway
decision was quashed and asked to be remade
the blanket approach is unlawful
ombudsmen review
if person reuqtesiing info believes they have had their request wrongly declined there is a review procedure
what is the first step of the decinlees process
decinlee must go to ombudsman who can investigate the decision and make non binding recommendations to govt dept and minsters
ombudsman who can investigate the decision to withhold Oi under
s28
ombudsman make non binding recommendations to govt dept and minsters under
s30
s31
pm certifies that disclosure is likely to prejudice security or defence, the o cannot release
s32
public duty to observe the recommendation arises after 21 days
if ombudsman does not prove a satisfactory result ..
go to court
