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
