Administrative Law and Justice Masterdoc

Constitutional Law

Body of law defining the overall structure and allocation of authority within a legal system.

Administrative Law

The body of law governing the executive branch and public administrative bodies in the exercise of their statutory powers.

Core functions of administrative law

Guidance

Redress

Prominence of courts

De facto constitution role

De Facto Constitutional Role

Refers to the significant constitutional function administrative law performs in defining and limiting executive power.

Parliamentary Sovereignty

The doctrine that Parliament is the supreme legal authority and can override any judicial decision.

Judicial Review

The legal process by which the judiciary reviews the lawfulness of executive actions and decisions.

Administrative Justice System

Framework of non-judicial bodies designed to guide administrative decision-making

A.V. Dicey

A legal scholar known for his principles of the rule of law, which underpin administrative law.

Dicey principle 1

No Punishment Except for Breach of Law

Dicey principle of No Punishment Except for Breach of Law

State authorities cannot impose punishment, restrict rights, or limit freedoms unless authorized by explicit law.

Dicey principle 2

Equality before the law

Principle of Equality Before the Law

The principle that every individual, regardless of rank or authority, is subject to ordinary law and courts.

Dicey principle 3

Constitutional law derived from judicial decisions

Principle of constitutional law derived from judicial decisions

Right derived and developed from court interpretation and application

Droit Administratif

The French model of administrative law that maintains separate, specialized administrative courts.

Conseil d'État

France's Council of State, responsible for reviewing administrative actions and ensuring compliance with the law.

Dicey’s opinion on Conseil d'État

Rejected its separate system opposed to empowerment of courts

Conseil d'État strengths

Affordability and ease of access

Conseil d'État weaknesses

High administrative bureaucracy and systemic overload

Core tenets of Dicean model

Regular law supremacy

Legal backing required

Equality before ordinary courts

Red light theory of administrative law

Viewed as a set of static legal boundaries designed to restrain executive overreach or misconduct

Dicey’s stance on discretion

Rejects, fearing abuse of power or illogical rulings

Entick v Carrington (1765) takeaway

Established principle of legality, holding that government officials can only do what is legally authorised

Realist critique of Dicean model

When counrts enforce statutory boundaries, executive uses its legislative controls to legitimise their actions

Fitzegerald v Muldoon (1976) takeaway

Demonstrates that, while ordinary courts can declare executive actions illegal, executive controlling Parliament can retroactively alter the law to overcome court ruling

Political and functional critique of Dicean model

Operating a social state requires significant administrative discretion and Dicey’s opposition to discretion creates friction

Origin of local government

Created in Victorian cities to handle water provision and sewage management

Systemic failures of Dicean model

Judicial bias against state action

Attenuation of electoral accountability

Attenuation of electoral accountability

Relying on general elections to control daily discretionary decisions of frontline officers affect individual citizens is an attenuated control mechanism

Green light theory of administrative law founders

Harlow, Rawlings, and Davis

Green light theory goal

Eliminate bad administrative decisions at the source rather than respond in Dicean model

Davis criticism of Dicean model

Emphasised importance of discretion, considering it the essence of the modern administrative state

Davis on management of discretion three techniques

Confining discretion

Checking discretion

Structuring discretion

21st c. rule of law v. Dicey

Redefines Dicey's model by recognising necessity of and legistimising discretion

NZ statutes for administrative procedure

Non-existent

Judicial review origin

Red light concept of ultra vires, evolved to involve green-light procedure override

Practical barriers to judicial review

Complex

Expensive

Narrow remedies

Core components of NZ administrative justice

Ombudsman

OIA

Specialist administrative tribunals

Public inquiries

Amber-like reality of administrative law

Combines traditional red-light court intervention with green-light administrative justice institution

Structure of NZ administrative law

Formal judicial review

Administrative justice system

Ombudsman

An officer of Parliament responsible for investigating administrative maladministration and ensuring fairness in public administration.

Relevance of 1962 to Ombudsman

After NZ officials atended national conference, NZ became the first non-Scandinavian country to establish Ombudsman

Ombudsman Act 1975

Primary source governing Ombudsman jurisdiction

What Ombudsman jurisdiction has expanded to

Official information

Whistleblowing

OPCAT

Disability rights

Aged care fascilities

Ombudsman accessibility

Free to all members of the public

Ombudsman dispute-centric focus

Complainants do not need formal legal knowledge or technical cause of action, just alleged unfairness or harm

Ombudsman non binding precendent

Each complaint evaluated subjectively

Ombudsman informal resolution mechanics

Majority of matters resolved informally prior to formal investigation or final report

Maladministration definition

Used to summarise Ombudsman office’s core jurisdiction despiute not appearing in Ombudsman Act 1975

Ombudsman grounds for critical findings

Maladministration

Ombudsman Act 1975 S22(1) Grounds for critical findings

If administration decision, act, or omission is:

• Contrary to law

• Unreasonable, unjust, or oppressive

• Based on improper law

• Based on mistake of law

• Based on improper execise of discretion

• Is ‘wrong’

Ombudsman Act 1973 S22(3) remedial recommendations

Reconsider decision

Cancel or vary decision

Change administrative practice or policy

Provide explanation

Reconsider or amend legislation

Pay monetary compesation or issue formal apology

Succes rates of Ombudsman recommendations

Despite adbsence of formal enforcement powers, recommendations almost always complied with

Ombudsman Act 1975 S25: Judicial review of Ombudsman

Ouster clause that Ombudsman proceedings and decisions shall not be challenged, reviewed, or called into question, except on grounds of lack of jurisdiction

Wyatt v Kanui takeaway

HC established courts must exercise extreme restraint when reviewing Ombudsman decisions

Ombudsman administrative review green-light mechanisms

Annual reports

Own-motion investigations

Public sector education

Democratic and administrative rationales for open information

Constitutional principles

Administrative accountability

Scrutiny of decision-making

Individual protection

Key open information rationale tension

Individual interest: protecting personal privacy

Collective/state interests: safeguarding national defence, international relations, law enforcement strategies

Catalysts for open information change (1960s-70s)

Ombudsman reports highlighting secrecy

Whanganui Computer Centre creating centralised state database linking department records

Danks Committee impact on official information

1980 Danks Report recommended replacing statutory presumption of secrecy with presumption of disclosure

Official Information Act 1982 (OIA)

Legislation in New Zealand that mandates information disclosure unless a good reason for withholding it exists.

OIA scope

Ministers, government departments, Crown entities, SOEs, public universities, and school boards

OIA S4 Purpose

Increase availability of official information to enable effective public participation and promote accountability

OIA S5 Principle of availability

Information shall be made available unless good reason for witholding it

Section 21 of OIA

Mandates the publication of a directory of Official Information listing all agency holdings.

Natural Justice

Legal principles ensuring fairness in decision-making, including the right to a fair hearing.

Audi alteram partem

The principle of natural justice that dictates a party must be given a chance to be heard.

Nemo judex in causa sua

The principle of natural justice that prohibits judges from deciding their own cases.

Public Interest Test

A criterion applied to determine whether the public interest in disclosure outweighs the grounds for withholding information.

Judicial Review Procedures Act 2016

Reformed procedural framework for conducting judicial reviews in New Zealand, streamlining applications.

Ultra Vires

A legal doctrine meaning 'beyond the powers'; refers to acts performed beyond legal authority.

Mandamus

A court order compelling a public authority to perform a duty it has neglected.

Certiorari

A judicial order that quashes a decision made by a lower court or administrative body.

Ouster Clause

A provision attempting to prevent the court from reviewing certain decisions or actions.

Wednesbury Unreasonableness

A standard of judicial review that allows courts to invalidate decisions that are so unreasonable that no reasonable authority could make them.

Neex

Rights and freedoms that are protected under the New Zealand Bill of Rights Act 1990.

Substantive Unreasonableness

A ground for challenging decisions based on their outcomes being manifestly unreasonable.

Natural Justice in Inquiries

The obligation for inquiries to follow principles of procedural fairness throughout their processes.

Breach of Natural Justice

Occurs when a decision-maker fails to adhere to the principles of fair hearing or impartiality.

Official Secrets Act

Historical legislation that established a presumption of secrecy in government information before the OIA.

Bill of Rights Act 1990

A statutory instrument in New Zealand affirming fundamental civil and political rights.

The 1980 Danks Report

Key document that recommended replacing the presumption of secrecy with a presumption of information disclosure.

Financial Services Complaints Ltd v Chief Ombudsman

Case where the High Court reviewed the Chief Ombudsman's decision regarding title protection.

Erebus Disaster Inquiry

A major inquiry into the 1979 air disaster, revealing issues of natural justice violation in reporting.

Judicial Review Grounds

Legal bases upon which a judicial review may be conducted, covering illegality, rationality, and procedural errors.

Administrative Maladministration

Poor or inefficient administrative decision-making that affects individuals or entities.

Section 7 Reporting for Bills

Requirement for the Attorney-General to report legislative proposals that appear to limit rights under the Bill of Rights Act.

High Court's Role in Judicial Review

Function of reviewing the lawfulness of executive actions, ensuring adherence to the law.

Judicial Review vs. Appeal

Judicial review focuses on legality and procedures, while appeals assess the substantive merits of decisions.

Royal Commission

A major public inquiry established to investigate significant issues and recommend reforms or improvements.

Empirical Evidence in Judicial Review

The requirement for courts to assess whether legal decisions align with statutory or common law standards.

Public Accountability

Expectations that public officials or institutions justify their decisions and actions to the public and government.

Legal Standing

The requirement that a party must have sufficient connection to and harm from the law or action challenged.

Public Participation in Decision Making

The principle that stakeholders should be involved in the processes that affect their rights and interests.

Human Rights Review Tribunal

A specialized body that handles cases involving allegations of discrimination and human rights violations.

Inquisitorial System vs. Adversarial System

The inquisitorial system focuses on investigation and evidence gathering, while the adversarial system emphasizes competition between parties.

Public Interest in Transparency

The principle that the public has the right to access information concerning government operations.

Judicial Authority

The power of judges or courts to enforce legal standards and oversee public decisions.

Judicial Scrutiny of Discretion

The examination of how public bodies exercise discretion in their decision-making processes.

Executive Accountability

The obligation of the executive branch to justify its actions and decisions to the legislative and judicial branches.