week ten Flashcards
what does the word Ombudsman mean
‘entrusted person’ or ‘grievance representative’
which types of investigations of the Ombudsman are more expensive: Official information act or ombudsman act
official information act
public law = constitutional law + ?
administrative law
what is administrative law
the part of the legal system where the administration is reviewed by courts and other bodies - the rules which bind the executive
what are administrative laws two roles
- guiding the administration/executive to ensure they know what the rules are
- provide remedy against the state when it all goes wrong - somewhere to go to resolve the dispute
what is the extensive role of the courts in administrative law and what is the problem with it
judicial review - expensive, get results you don’t necessarily want, formalities etc
what are dicey’s two main principles of the rule of law that apply to administrative law and how do they apply
- no one is punishable except for a breach of law - the government can only do things when law provides for it
- everyone is equal before the law - there are no specialist administrative rules or tribunals/courts, they are dealt with through the ordinary courts and are treated exactly the same there as us
Dicey’s system of administrative law differs greatly to the French model (used around many places in the world), why?
they have a counsiel d’Etat (council of state) which is an advisory council specifically to advise on administrative matter, which has now evolved into a separate system of courts.
administrative law is separated from everyone else
what are 2 key features of Dicey’s ideas about administrative law
- parliament is the key body in controlling public power
- no explicitly administrative or constitutional role for the courts, though they have developed this
Dicey opposes the idea of executive discretion, because where law ends ?
tyranny begins
who are tasked with policing the Official Information Act
Ombudsman
what are the 4 groups of reasons for withholding information under the Official Information Act 1982
protected interests
integrity of government processes
administrative grounds
fourth group applies specifically to the Cook Islands, Tokelau, Nieu and the Ross Dependency
how long do departments have to notify their decision of whether or not to grant an Official Information Act request
20 working days
what is Dicey’s red light theory
executive is within the box - law. the box is passed by Parliament so they confine the executive and the courts sit just outside the box stopping the executive from coming our of the box
what are the practical problems with Dicey’s red light theory
this is not how the NZ constitution works. house of parliament is fused with the executive, so we end up, in practice, with the executive policing itself. they can expand the box and give themselves more power
what are the political limits of Dicey’s red light theory
as a nation/community, we want the box to get bigger.
what is KC Davis’s green light theory
governments have to govern, we have to embrace discretion.
involve law in discretions use
KC Davis said a system of administrative justice has to do 3 things
- confine discretion
- checking discretion
- structuring discretion
why do we need an Ombudsman
growing state, more expected from government and its institutions, perception of lack of institutional accountability
what institutions are subject to the Ombudsman
a wide range - wide jurisdiction! includes central and local authorities, almost all Crown entities and public bodies (school boards, universities, health boards) etc.
what are some exclusions to the jurisdiction of the Ombudsman
- lawyers, MPs and Ministers of the Crown - but advice given to a Minister by an agency that is subject to the act is not excluded)
- the police - they have their own independent police conduct authority
- local council decisions
- decisions of courts, tribunals or parole board
why is the Ombudsman the last resort
complaints are expected to first exhaust internal avenues of complaint.
they may not investigate where a court or tribunal appeal right exists (s13) and have discretion not to investigate where an adequate remedy is available or further investigation is unnecessary (s17)
what can the Ombudsman ground a finding on
nearly anything
what are the outcomes of Ombudsman inquiries
focus on righting the wrong - they can recommend anything at all but there is no power of enforcement
the political cost of not doing what the Ombudsman says is ____ (high or low)
high
is the Ombudsman subject to judicial review in NZ
not for their decisions, very limited judicial review on the grounds of lack of jurisdiction under s25 Omubudsman Act, Official Information Act decisions can be reviewed in courts.
Overall, courts are very reluctant to second guess the Ombudsman anyways - complex decisions like these are better suited to the inquisitorial nature of the Ombudsman anyways
why would courts practically not review the Ombudsman
people might lose faith in Ombudsman recommendations, courts get lots of reviews making them busy and people can’t afford judicial review anyways
what do Ombudsman public annual reports say?
they raise issues of general concern in the Administration and pressure implied agencies to improve e.g. told ACC to get internal complaints mechanisms
what percentage of people know about the Ombudsman
70
what are some potential challenges ahead for the Ombudsman
- funding issues
- not always keeping pace with demand
- delays
- potential lack of respect from the executive at times, particularly where that executive has been in for a long time and start to feel above everyone
what are the constitutional reasons for allowing access to public information
- incoming governments know what they’re getting
- we can make informed decisions about voting - shows what the government is just saying vs what they are actually doing
what are the administrative reasons for allowing access to public information
- accountability (how can you challenge decisions when you don’t know how they were made in the first place
- opening things up and seeing what people are up to means greater efficiency (we know people are doing things) and ensuring decisions are taken how they are supposed to be taken
why do we have to balance letting public information out and keeping it in
we don’t want our personal information (health, finances, address) to be shared with everyone and there is also some collective information the state has that we also don’t want shared (international relations and negotiations, defence, security, police investigation tactics, economic information)
what was the UK Official Secrets Act 1911 and when did it apply in NZ till
there was an obsession that German spies were everywhere so they passed this quick law to make EVERYTHING a secret. It was badly written - one defence within it was that information sharing in the ‘public interest’ was authorised, but the Act didn’t define what a public interest was. It applied in NZ until 1951
what was the NZ Official Secrets Act 1951
- presumption of secrecy
- all government documents secret
- still a public interest defence, as in the UK Official Secrets Act 1911
- executive discretion to release information
- otherwise - releasing information was a criminal offence
