week nine Flashcards
tribunals began as institutions of administrative law and are a pragmatic response to?
a political reality
tribunals have been described as the court of __ ___ for the citizen
first instance
a public officer has discretion whenever ?
the effective limits on his power leave him free to make a choice among possible courses of action or inaction
what are the three principle ingredients for the exercise of discretion
facts, values and influences
discretionary justice overlaps with ?
policy-making
rules alone, untempered by discretion, cannot cope with ?
the complexities of modern government and of modern justice
discretion is our principle source of creativeness in which areas
government and law
discretion is only a tool when it is?
properly used
why was the Ombudsmen established
to look into administrative decisions and make recommendations about defects
what is the oldest and most effective avenue of redress
Parliament itself
how does one get redress from Parliament (4 methods)
point out the problem to your MP, they can write to the relevant minister on your behalf, who will have to write back saying what the position is, and, if in the government’s view, anything is wrong
alternatively: MP’s can ask questions
alternatively: select committees can investigate serious grievances
alternatively: petition to parliament
what limitations do Standing Orders put upon petitions to parliament
language must be respectful and moderate
other legal remedies must be exhausted
if it could’ve been complained to the Ombudsmen it won’t be considered
if its on the same subject as an earlier petition that has been dealt with, unless substantial and material new evidence is available, then it also won’t be considered
does the Ombudsmen have allegiance to the executive branch
no
are funding decisions for the ombudsmen made by cabinet
no, by the Officers of Parliament Committee
how long is the Ombudsmen appointed for
5 year term
can the Ombudsmen investigate on their own behalf as well as investigating complaints?
yes
does the Ombudsmen have the power to alter decisions
no, they just investigate and report on them
what are the functions of the Police Complaints Authority
receive complaints, investigate of its own motion and take such action in respect of complaints, incidents and other matters as it is contemplated by the Act
the human rights act is related to what other rights statute
NZBORA
the Human Rights Act is an ____-____ law
anti-discrimination
what’s the extra difference of NZBORA compared to the Human Rights Act
it protects citizens from the state regarding a much broader range of rights and freedoms, subject to a general balancing justification, rather than only being anti-discrimination like Human Rights Act
what information remedies can the human Rights Commission and the Race Relations Commissioner use (in the first instance)
mediation, negotiation, shuttle diplomacy, informal interventions
where matters for the Human Rights Commission cannot be solved informally, what happens
the Director of Human Rights proceedings takes over and decides whether each complainant should be provided with free legal representation to take the compaints to the Human Rights Review Tribunal
what Act established the Privacy Commissioner
Privacy Act 1993
the generality of Privacy principles means much of their public credibility lies in __ ___ __ ___ ___, which makes the skills and experience of the Privacy Commissioner important to the effective functioning of New Zealand’s privacy law
the way they are applied
what act established the Health and Disability Commissioner
Health and Disability Commissioner Act 1994
what act established the Children’s Commissioner
Children, Young Persons, and Their Families Act 1989
what two parts is the Public Sector as a whole divided up into
the state sector and the local government
what makes up the State Sector (within the Public Sector)
public service
state owned enterprises
crown entities
other public entities
what makes up the local government (within the Public Sector)
regional councils
territorial authorities
what is the public service
it is the core of the Public Sector, the executive and the delivery arm of government. it is those that work DIRECTLY for the Crown
what was happening pre-1912 in the Public Service
Ministers controlled departments entirely, meaning they could appoint staff - not merit based always
there was little coordination between departments
in 1866 a basic examination was introduced that you had to pass to get into the service, but the Ministers could still appoint whatever temporary staff they wanted
patronage - departments became kingdoms for Ministers - the public service are loyal to the Minister because they can be fired by them
what role did the 1912 Public Service Act create in regards to the Public Service
sets up a Public Services Commissioner who appoints all those working in the Public Services - no longer done by the Minister. The Commissioners job is to ensure efficient and economic running of the public service, as well as employing the staff
what were the principles of the Public Service system from 1912 - 1988, after the Public Services Commissioner was established but before the Muldoon to Lange party change
Merit based system
Non-political
Independent - can give frank advice to the minister
Generalist - all public management is the same, you can move between departments
anonymous - decision of an individual public servant will not be publicised
a single service - no divisions between advisors/senior management and the delivery of policy
ministerial responsibility for what goes on in their department
why was reform of the Public Service urgently needed when Lange came into power in 1984
the country is in extreme debt and we needed to get out of huge financial troubles which the Muldoon government was able to hide because of extreme secrecy at the time
what were the principles of the 1984 reform of the Public Service, based on the advice of the Treasury
maximise efficiency
improve coordination
reduce the range of state functions - not so many people
ensure clear accountability
ensure clear MISSIONS - focus on what they are meant to achieve
high quality & contestable advice
focus changes from processes to outputs - focus on the consequences and outcomes
what principle did the 1984 reforms of the Public service use and what was the argument for it
new public management, by focusing on the principles we could improve the public service, make it more efficient and save money - which we desperately needed to do
how did the division of the public sector end up looking after the 1984 reforms to the public sector
- central service (Treasury, DPMC)
- departments, rather than one big service (policy departments and administration departments)
- companies are removes from the public service and become SOE’s
- Crown entities
what is new public management
a flexible, market based form of public management
the power given to the executive gives them the power to impede on individuals’ lives, but only to the extent of?
the law
why did we need to make more administrative justice bodies
the state is growing and becoming increasingly complex and uses a lot more discretionary executive power. we need mechanisms to control, or at least hold accountable, the exercise of those discretions.
the Ombudsmen have a lot of effectiveness and respect despite have little or no ?
coercive power
in what context do the Ombudsmen have coercive powers
Official Information - if you request information for a department but only release some, the Ombudsmen can go in for you and direct the release of further information
what special role do the Ombudsmen have under the Public Disclosures Act and what is this Act known as
the whistleblowing act - Ombudsmen facilitates disclosure and protection
can the Ombudsmen surprise inspect prisons and provide reports and recommendations
yes
ombudsmen recommendations improve ___ ___ ___ and ___ to make our executive better
public decision making and processes
what are 4 limits on the Ombudsmen’s effectiveness
legally, they don’t HAVE to be follow, although in practice it is highly effective
funding comes directly from Parliament, and technically they could face financial constraints as their workload goes up over time, however they will most always get extra money they ask the Parliamentary Committee for
you have tp have exhausted any appeal rights or internal complaints procedures to be able to apply there
the Ombudsmen doesn’t have to hear the complaint - if you’ve sat on it for over a year, if its frivolous or lacking merit etc.
what is the overall advantage of going to the Ombudsmen over the court, and 4 reasons for this
overall - much more accessible than the courts
its free
you should get a resolution and usually within 6 months, only 4-5% of complaints were still alive 12 months after they were filed, whereas getting before a judge for judicial review could take a really long time
no lawyers
less formality - complain by text, email, phone call - there is no particular form. whereas courts have requirements for the font size and paper weights of filings
what are some reasons why administrative justice shouldn’t be judicially reviewable
dragging the person into judicial review, which they were trying to avoid in the first place, may/probably not able to afford
these processes were set up to avoid court in the first place
court of general jurisdiction can make decisions in respect of tribunals which Parliament intended to become a specialist
what are some reasons why administrative justice should be judicially reviewable
there has to be some mechanism to check that these quite powerful administrative justice mechanisms operate within the law
is the Ombudsmen judicially reviewable
yes - but only administrative actions, not substantive ones (things about decisions, whose cases to here etc.)
the Ombudsmen Act has a privative clause - what is this and why is it not that important in this case
excludes the challenging of any decision in a court - courts read provisions like that really narrowly, so do review administrative actions of the Ombudsmen
what are the two key acts underpinning the Public Sector
Public Service Act 2020 and Public Finance Act 1989
what are the principles of the Public Service Act 2020
politically neutral
free and frank advice to ministers
merit based appointments
culture of open government
proactively promote stewardship of the public service including its long term capability and its people, institutional knowledge and information, its systems and processes, its assets, the legislation administered by agencies
the principles of the Public Service Act 2020 move more towards what previous model of the Public Service
pre-1988 - a more wholistic approach
what is the chief executive of a department
they are appointed for a 5 year term by all departments/agencies.
they must act within the PSA s11 purpose and s12 principles with a “spirit of service to the community” s13.
They are responsible for running their department/agency within the limits provided by the Minister. How they do things is up to them, the Minister just directs them on what to do.
They are the employer of all the department staff
public finances in nz have to follow which rules?
the rules that apply to private entities - this is strange because most states make exceptions for public, this is a legacy of 1984 and the fear of what happened happening again
what is the idea of decoupling
in the Public Service, there are bodies that provide policy, that then have agreements with other agencies which will purchase services, and then there are those that actually deliver the service e.g. Ministry of Health > District Health Boards > Healthcare Providers
accountability works through the concept of?
inputs, outputs and outcomes
what is a statement of intent
a statement, covering the next four years and made at least once every three years, that is agreed with the Minister and Chief Executive, of what they are going to do over the next four year.
The Chief Executive’s performance will be measured against what is in the Statement of Intent
what are some types of output plans
performance agreements, purchasing agreements, targets
what is a performance agreement
what the Chief Executive is going to achieve in relation to the statement of intent - there will be targets for them to achieve in here
how is a Chief Executives performance against their performance agreement and statement of intent actually measured
annual reports that say what they’ve done in this period of time to deliver our statement of intent
what do the public service commission do
employ and hold to account the Chief Executives - recommend appointment, Cabinet could technically overrule the decision but this rarely happens
how are SOE’s held to account
- select committee investigations
- annual and 6 month reports
- audit office
- statement of corporate intent
- ministerial accountability through the appointment of the board
what are some reasons to have QUANGOs
- independent and not staffed as public service
- a number of tribunals are QUANGOs
- politically convenient - a means of setting something up outside the constraints of the public service
what are some examples of QUANGOs
ACC, Commerce Commission, Families Commission, Universities
what act was introduced to deal with a lack of accountability of QUANGOs under just the Public Finance Act 1989
Crown Entities Act 2004 - introduced some mechanisms of accountability
what are some examples of SOEs
solid energy
kiwirail
landcorp
nz post
transpower
metservice
airwards
what are some examples of things which use a mixed ownership model
air nz, meridian energy, genesis energy, mighty river power
what are some examples of crown entity corporations
tvnz, rnz
can other Acts trump the Crown Entities Act 2004
yes, acts specific to that thing/organisation
what is the risk of politication of public servants
the line between what is policy (Minister) and what is administration (Director/CE) becomes blurry
what tragedy prompted cross-government aims by Cabinet to try stop the focus on outputs and bring the system back more to outcomes
The Cave Creek Tragedy - viewing platform of students collapses
