Administrative Law Flashcards

Flashcards from lecture notes on Administrative Law.

Sandbox Theory - Red Light

Based on the Diceyan Rule of Law. The role of the courts is to ensure the executive can only operate when it has the legal power to do so.

Green Light Theory

A criticism of Dicey's theory. Embraces the discretion needed in modern governance, involves law in controlling discretion.

KC Davis - Management of Discretion

Confining, checking, and structuring discretion to ensure good decision-making.

US Model

Management model embedded in US Administrative Law, with a constitutional basis in the 5th and 14th Amendments.

Administrative Procedure Act 1946

Tries to employ the ideas of Davis, requires all federal agencies to follow procedures laid down in the act.

Judicial Review - Ultra Vires

Acting outside of jurisdiction. Courts have to justify how they get into the box, as they are not designed to deal with administrative procedure.

Administrative Justice

Includes Ombudsmen & Other Watchdogs, Transparency and Access to Information (Official Information Act 1982), Tribunals and Inquiries.

Limits of Judicial Review

Complex, expensive, lacks public law specialists and specific remedies.

The Ombudsman

Originally a Swedish concept (1809), an officer of Parliament with limited investigatory power.

Primary Roles of Ombudsman

To investigate complaints arising out of actions of central and local government agencies.

Official Information Act and LGOIMA

To investigate complaints about decisions made on requests for official information and form an independent opinion.

The Office of the Ombudsmen

An officer of Parliament, appointed directly by Parliament, independent from the Executive.

The Ombudsmen Act 1975 - Wide Jurisdiction

Investigation of complaints about acts or decisions of central and local government agencies affecting persons.

The Remedy of Last Resort

Complainants are expected first to exhaust internal avenues of complaint. A remedy of last resort.

Section 22(1)

An Ombudsman investigation is a 'remedy of last resort'.

Section 22(3) - Outcomes of Ombudsman Inquiries

Further consideration, cancellation/change, change of practice, reconsideration of enactment, giving reasons.

Courts and Ombudsman

Operate differently and have different remedies/legalistic v non-formal mechanisms.

The Ombudsman as Fire Watcher

Raise issues of concern within the Administration, conduct own motion investigations.

Administrative Justice

Transparency in regards to public information.

The UK Official Secrets Act 1911

Applied in NZ. Early 20th century dramatic increase in surveillance and spying. Upholding states secrets became a statutory duty of public servants, where the disclosure of official secrets is illegal.

NZ Official Secrets Act 1951

Maintains the Presumption of secrecy - All government documents are secret, but information can be released if it is in the public interests.

Committee on Official Information set up 1978 - Danks Committee

Suggestion of radical change - repeal and replacement of the OSA. Shift from a presumption of secracy to a presumption of disclosure.

Official Information Act 1982

Enacted - 'a presumption of disclosure' (s 5)

Management of Information Today

Statues, common law principles.

Purpose of the Act

To increase progressively the availability of official information to the people of New Zealand.

Principle of Availability

Information should be made available unless there is good reason for withholding it.

Conclusive Reasons for Withholding - s6

Information that would be likely to endanger the safety of any person, prejudice security, foreign affairs, etc.

Section 9 - Non-Conclusive Reasons for Withholding

Privacy of individuals, Trade Secrets, Health and Safety of the Public.

Section 18 - Practical Reasons for Withholding Information

Contrary to primary legislation, doesn't exist/can't be found, substantial collation/research.

Dicey's rule of law

Is NZ court system completely unified? Specialist Courts - Family Court, Maori Land Court, Environment Court Tribunals

Tribunals

Type of specialist justice, but not courts, not courts of record and not formally part of the judiciary structures.

Courts operate with the full procedural facets of the judiciary

Expensive, Formal processes - 'Rolls Royce Justice'.

Tribunals Allows for simplified procedures

Reduce Costs and Allows Speedy Resolution, More accessible justice, Focus on dispute resolution.

Features of a Tribunal

Procedures set by the Tribunals themselves, Few/No rules of evidence, No (or limited use of) precedent, Less Adversarial, More Inquisitorial.

Tribunals by Type of Dispute Regulatory/Professional

The Lawyers & Conveyancers Disciplinary Tribunal, The Real Estate Agents Tribunal.

Administrative Tribunals and the Growth of the State

Why the need for an alternative to the courts?

Justice Issues

Remedies - Court remedies designed for generalist use/Private remedies

Critique of the Current System

Law Commission's Tribunal Reform Issues Paper Lack of coherance

Tribunal Reform in NZ Law Commission Reports

Delivering Justice for all, Law Commission (2004) Joint Ministry of Justice/Law Commission Project

Inquiries

Executive bodies outside the judiciary, but Inquiries are not dispute resolution.

What do Inquiries Do?

Finding out the truth or information, Non-decision making, Investigatory, Inquisitorial, Publishes a report or facts.

Why have them in Public Law

The Mt Erebus Inquiry The COVID Inquiry. Independent examination of issues When truth is more important than justice

Inquiries Act 2013 Government

Government - Established by Ministers

Judicial Review and Inquiries

Major role in which courts review decisions of public bodies - 'Ultra Vires' - beyond powers. Government can only operate when it has the power to do so.

Court

Applies natural justice in their own experiences of justice - 'due process' traditional common law court based procedures

Natural justice

Highlight or ostracizes the inclusion of natural justice in inquiries

The Winebox Affair

Leaked information about a Tax Avoidance scheme and associated corruption

Administrative Justice Conclusion

Reflects the confused nature of the NZ 'system' of Administrative Law generally