Public Law 2026

How does the house hold the goverment to account

the house must consent to any public spending s 22 constitution act, when executive is adopting policies must oresent them to the house

S 22 of the Constiution Act

The house must agree to all goverment spending

Ag v Taylor

establishes that the supremacy of parliment is the bedrock of the consitution and this can not be based in legislation

Pickin v British Railway

establishes that even if legislation is misleading it does not matter must give effect to what parliment wants as they are supreme

s 16 of constituion

the gg must sign off on all bills, in relaity they will always sign off because of convention

s 268 constitution act

sets out provisions that are entrenched

NRA v AG

Court found that by taking away there right to vote it did not touch any part of the entrenched constitution therefore it is legal.

Soft laws

these are best practice constraints which are meant to constrain parliment, while they can not be upheld in court they are taken seriously and there is a strong sense of moral obligations to respect the constraints

LDAC guidelines

designed for when the goverment is making legislation decisions to slow down and think if it is good law

LDAC application

the goverment can still propose legislation that is in breach of LDAC e.g. ganga patch act. However the expectation is that ministers will look into this, while they can not be forced to follow them there is a potential political cost if you dont.

Rights and parliment enacting legislation

Hansen Case, is it sufficent important to jsutify limiting rights, if the reason is good enough does this then ahcieve what the act is wanting

s 7 reports

if parliment wants to issue a bill that is inconsititen with NZBORA the AG will issue a report as a warning

vetting procss of bills before they enter the house

do any provisons limit rights in NZBORA, if so are they deomnstrably justified under s 5. The house can still pass a bill that breaches right the only potential consequences are political .

Prisoner Voting

example of parliment passing a bill that is contrary to NZBORA

What stops parliment from making law in an unjust way

Politcal and moral constraints, MP elcted to represnt us should be aware of what the community wants. Bill of Rights Act 1990, Courts can issue declerations of inconsitencys

Kiwi v AG

challenged the regualtion of rifles after the mosque shooting, was found that because nothing written in constitution in terms of the right to bear arms then parliment can legislate against it.

Comity

s 4(1) (b) of parlimentary privllidge act requires the sperate brenaches have proper spheres of inclunces and privlidges

Mps not to interfer with courts

standing order 115 MP not to interfere with matters awaiting trial and standing order 117 prevents MP using offensive words against the judiciary .

There is a proviso that you may do it but must speak to the speaker, the house is entitled to legislate in any matter which may affect the court case can continue to do so.

Parlimentary privilidge

rules that prohbit the courts from interfering with how the house operates

article 9 of Bill of rights act

states that freedom of speak ought not to be imparied, so no one can be prosecuted for what they say in parliment

Kiwi arms party case 2.0 argument

argued legislation was bad and select committe proccess not proper however s 11 of parlimentary privlidge sets out that parliment is top of system and can legislate how they would like

s 11 parlimentary privlidge act

parliment is the tope of the system therefore can choose to pass and legislate as it wants

Executive parts

executive council, all cabinet members and the governor general and cabinet which is the heart of goverment

Collective responsibility

unamity ( speak with one voice) and confidentality

Conventions

non legal rules that govern the politcal part to the consitution, act as a link between politics and law

Goverment formation as a check on power

election acts as a check moreover acts of conifdence in the house

Caretaker convention

After election must wait for ritz so current goverment is acting as a caretaker can not undertake any signifcant actions unless directed to by the incoming goverment. Example of this is Muldoon refused to drop the $1 value but caretaker convention on advise of the incoming goverment he has to.

Constitutional Conventions

non legal rules, binding in 2 ways if the relevant actor considers themselves bound by convention or the consequences flow on if you dont follow them ( political)

Jennings Test

helps determine if it is convention.

1. Is there an established precedent

2. the relevant actor considers themselves bound

3. there is a consitutional reason for the rule

if all 3 are established it may be enough to say that it is constitutional convention

Muldoon and the $1 is a good example here

Jennings test in appointing ministers ( example to use)

1. conventional rule GG acts on advice from PM in appointing ministers

2. good consitutional reasons as we want the political executive to be held accuntable

3. the precedent that not a signle GG has refused toa ppoint the requested minister

4. mutiple GG have stated publicly they consider themselves bound to follow this.

Why conventions

judges are not ultimate enforcers because we have an unwritten consitutioon, hisotrically conventions are way to do things very hard to put into law, gives flexble application, to important for law just because you havent breached a law doesnt make it un consitutional.

principles of public service

s11 of the public service act

support the current goverment and future goverments to implement policeis and deliver high qaulity and efficent public service supports.

Main principles of public service

Impartial, accountable, ethical, respectful, responsive, act or the benefit of NZ and Politcal neutrality

Political neutrality and the public secotre

public sector should give free and fran advice politcally neutral but have respect for the policy choices

Public service commissioner

overseas the public service, they are there when something bade happen e.g. if public service accused of not acting netural, good examole is the costello accused public service not being nuetral. The commissioner can there to make a balancing act and figure out if something actually went wrong.

delegation

must be in writing can delegate to another person under s 7 of the consitution act. this can be done ever through statue or by wiriting of the minsiter but once delegated it can not be redeleagted unles expressly allowed to.

Carltona Principle

Ministry officals can act for the minister but they should act in the ministers name not as a deleage, this should be taken to cabinet for approval first.

Diffrence between delegation and carltona

delegation minister will remain responsible but has some fall out where as carltona there is no diffrence between the minister and the ministry.

Ministerial responsiblity

minister will always remain politically responsible even if they did not make the decisions, must always be able to defend and explain there actions.

Primary responsiblity

can you preform the officl role and have you used it in a proper manner

vicarious responsiblity

responsible for the work of you department officals, often when major disaster such as pike river may have to resgin.

Role of law in cosntraining public power

Rule of law no one is above the law and it applies the same to public offcials, however not practically true becayse the goverment has special powers therefore there needs to be a source for this power.

Entik v Carrington

C a police officer entered E home nad trashed the place on direction from superiors, however was guilty of trespass because there was no lawful basis for the application

Webster v Police

Modern day entik v Carrington, entered on to property but they did not have reasonable suspciion of a crim as such they had no law ful authrotiy.

Fitzgerald v Muldoon

announced in a press confrence that the super annuation scheme has been repealed. This was illegal and could not point to any lawful authority

3 sources of executive power

statue, prerogative, third source

Statue as a source of power

vast majority of goverment action authroised by statue, courts must recognise the legislation and then apply it

Boroowdale v Diretor General of Health

director general of health can take broad measures such as implement the covid lockdown, B objected to this and stated that while broad powers there is limitations, decided that it is not an unfetted power however needs to be broad and are not going to go against a world leading response.

Prerogative Power

Non statutory power that only the crown has, stuff that was never replaced by statue but are better to be politcally accountable then legal. Recognised by comon law as law that was already there. It can be replaced by statue if needed.

De Keyser Royal Hotel

British goverment took a hotel to make as a home for soilders, under the realm act 1914 which dd not have ww1 in contempletion after the war suppose to pay out compensation. Crown refused to pay, argued acting under royal prerogative not the act. However court held that once a statue is there that does the heavy lifing should not rely on the prerogative any further

Preorgative and legal accountablity

council of civil service unions PM said spy agency could not join a union, up to a court to decide if it is prerogative but very hard to reduce down to a singal legal questions

prerogative political accountablity

normal stuff and effect election

International law and prerogative

being able to entier into treaties is an example of prerogative that can be done without stautory endorsment

lousianna purchase and prerogative

President Jeffersons rand a deal with france to purchase land, France sent an offer rather qucik J did not want to loose deal so accepted it before going to congress.

this idea carries through into modrn context that these things can occur as long as there is executive discretion because it may be time sensitive etc.

Third source

is the least important does the smallest amount of work it is a ordinary person power, so the executive can take any action that an ordinary person could take. Can be seen as inconsitent with the rule of law because not specifcally authroised, unseful because the goverment can not legislate for everything that it needs to do.

Malone v Metro Police

this case announced that third source was a thing, they tapped M phone and he objected to this, court accepted that it could be done under the third source because not stautory authroity preventing it.

Hamed

after 9/11 police saw people undertaking terorsit like activities and seen training in a forest, they set up cameras to see what doing. The law did not allow the police to do this and there was no statue, Argued that the public could do it why not them, said iwi gave implied license to enjoy for recreational purpose not to film therefore not third source.

Qauke outcasts

a group whos houses were in the red zone or red stickered and did not have insurance through no fault of there own. Goverment gave buying house options based on insurance. Qauke outcasts argued that the goverment could not red zone houses as no authority to do so. court held that an ordinary person could not do this the prerogative expriese when legislation covers the field therefore the legislation that is apssed is the authority.

Public records act

requires the goverment to keep reasonable records of its activities

Controller and Auditor General

parliments financial watch dog, s 22 of consitution act means that parliment wont spend public money unless authorised. Public audit act 2001 s 7 and 9 give them this power. s 15 gives them power to examine finacial statnets and 20 and 21 require them to provide reports to the house. Examples of work include the chattam island council house spending

Parlimentary commissioner for the enviroment

established by the environment act, they review goverment agencies and investigate effectivness of enviroment planning, they will report to the house and give recommendations. One example of there work is how we manage weeds

Ombudsman

Parliments man put there to protect society, characterzied by the ombudsman act 1976

What can the ombudsman investigate

1. What matters can be investigated

2. who can be

3. when can they

4. how does it take place

5. what remedies are avalible

what can ombudsman investigate ( step 1)

section 13 (1) any decision made or failed to that relates to a matter of admin affecting any person. S 20 highligghts that it must be maladmisntation that are contrary to law.

what cant the ombudsamn investigate

s13 and 17 provide that decisions where there is appeal process or where the information is trival complaint known of it for 12 months or do not have sufficent personal intrest

Who can the ombudsman investigate

found in schedule 1 of the act, includes goverment departments, local orgnaizations councils etc

when can the ombudsman investigate

s 13 overall framework, mainly investigates when public omplain very rare from select committe or pm

How does the investigation take place

s 18 (1) provides the ombudsman must inform the head of department concerned, this is the sole limitation otherwise very flexble.

What remedies are avalible

can give very broad, make any recommendation they see fit, it is not in the act. When they make reccomendations to the house it is not binding but normally followed .

Public Inquiries

an offical investigation by the state into an event or matter that caused or could concern the public, takes places under the inquires act 2013

3 types of inquiries

Royal commission, public inquiries, goverment inquiries

Establishing an inquiry

must be done under s 71, 1. specifiy the matter of importance, 2. must name the person appointed to be members of the inquiry and the chair person, 3. specify the date when the inquiry may begin considering evidence.

Inquiry terms of refrence

sets out the subject matter and questions which panel is investigating. they must not go beyond these terms however they may be changed under s 7 (5)

Re Finuance

solictor was murdered by the army, wife was promised an inquiry, court held that normally public do not get to influcne heavily what the inquiry is about and the terms of refrence. Public may be helpful but also have the problem they may over run the system with one perspective.

Inquiry procedure

s 29 goves broad powers to conduct onquiries as they see fit, can conduct interviews summon witness and hold hearings. S 30 sets out that people may be subject to a penalty for not complying.

Outcomes of an inquiry

s 12 (1) must prepare and publisha final report to present to the indivudal minister who initated the inquiry

select committees

main work is legislative scrutiny the sit between the first and second rading, 2 types the subject or the specalist

Chair person and select committe

standing order 214 can request that any person attend and give evidence to the committee,ministers can only be requested because they are soley accountable to the house however should make every effort to go. standing order 199 and 200 can issue summons to force a person to come to court

e.g. tvnz fined 1k

effectivness of select committees

have more expertise and time, is treated seriously by MPs and seen as an important process. however issue is they take Mps away from the communities that they are suppose to be serving

select committees and department officals

will tend to use the staff from the relevant ministers department which can prove to be problematic, as minister may be able to put forward there own views e.g. eviroment select committee more labour mmeber and were in favour even though public submissions said something diffrent

deleagte legislaton and regulations review committe

law has been passed by a specalist select comitttee rather then parliment, it deals with technical matters that parliment does not have time to deal with, it is faster and easier but gets the same scrutinity

Economic stablization Act 9148 and Muldoon

tried to impose a wage freeze to controll the market but it had the opposite effect this major failure lead to the establishment of the regulations review committee

pros of passing legislation outside of parlimen t

relives parliment pressure as they take alot of time to review, can be made quick and flexibly provids power to respond to emrgencies including war etc.

cons of passing legislation outside of parliment

potential for abuse by the executive as not subject to scrutinty, gives them power from parliment that we have specifcally given parliment

How do we make effect regulations

1. identify the need

2. develop polic

3. consult as required

4. submit it policy and impact to cabinet for approval

5. lgislation drafted by parlimentary counsel

6. goes to cabinet for approacal

7. notfication in the gazette

8. 28 days tand down

9. published and comes into force

legislation act 2019 and parliments oversight of secondary legislation

all regulations must be presented to the house per s 114, s116 parliment has to engage with the legislation s 119 can ammend or delgate legisaltion.

regulations review committee

examines all regulations made and draft regulation making, hear complaints, made up by 3 opposition members one of which is the chair and 3 governing emembers it can change we have had 9 and currently have 5

grounds for reviewing the legislation under standing order 327

1.        Its not in accordance with the general objects and intention of the enactment under which was made

2.        Trespasses unduly on personal rights and liberties

3.        Appears to make so unusual or unexpected use of power conferred by the enactment under which it is made

4.        Unduly makes the rights and liberties of a person dependent on administrative decisions

5.        Excludes the jurisdiction of the courts without explicit authorization of the enactment to do so.

Serious fraud office

• priamry office that investigate bribery and corruption, works with the ombdsman on things, established by the serious fraud office act 1990, works to detection, investigation and then prosectuion

Whistle blowing

when a insider is aware of a issues an flags it to be investigated

Protected disclosure act 2022- steps to whistle blowing

3 stages to whistle blowing

1. appropriate disclosure under s 8

2. is the disclosure under s 9

3. have you followed an appropriate action

who can make disclosures of whistle blowing

s 8 gives a wide remenet for who can anyone who used to be or is employed there, dont have to be currently employed this is desgined so that people who have raisded concerns and a re fired can still bring it up

is the disclosure protected under s 9

1. belives on reasonable gounds that there has been serious wrong doing, s 11 (4) (a) still allows for protection even if it is a mistake

2. discloses information in accorandce with the act s 11 either to internal affairs or an appropriate authrotity

3. does not dsclose in bad faith

ALA v ITE

specififes that redisclosure of a whistle blwoer report to members in the same organisation still count as protected disclosure

kavallris v Infaramax construction

sending something someone who is not an appropriate offical is not technical failure it is substantive so therefore excluded from protection

what whistle blowers are entitled to

confidentatility, no retaliation by employer, no victmaization, immunity from civil criminal and disciplinary hearongs

confidentaltity and whistle blowing

protected under aection 17 of the act, it is not guaranteed rather to there best endevaours. if confidentaltiy is protected no other 3 resutls will occur.

privacy act 2002

draws the distinction between information and personal info that will not be covered by the OIE

Offical Information Acct

idea is to increacse the avalablity of information to the people of NZ

who does the OIE apply to

applies to basically anyone who is in central goverment, however more specific schedule 2 of ombudsman act