Public Governance and Administrative Law

Shift to New Public Governance

• Governance by Contract - Benefits

  • Increased efficiency in the public service. However, this could be offset by bureaucratic responses aimed at enhancing efficiency.

  • Improvement in the advice provided to the government.

  • Departments gain a sharper focus and clearer objectives for planning.

• BUT…

  • Politicisation of Public Servants:

    • Rankin v State Services Commissioner [2001] ERNZ 476 case: Failure to reappoint due to perceived political bias. Although the government complied with employment law, the judge was critical.

    • COVID-19 Example: The association of Ashley Bloomfield, as Director-General of Health, with the political aspects of the COVID-19 response blurred the lines between the government and the public service.

• Other Problems

  • Output vs. Outcome Focus: A tendency to focus on immediate outputs rather than broader outcomes.

  • Fragmented Accountability Measurements: Issues with coherently measuring accountability.

  • Goodhart's Law:

    • "Any observed statistical regularity will tend to collapse once pressure is placed upon it for control purposes."

    • "When a measure becomes a target, it ceases to be a good measure."

  • The Cave Creek Tragedy (1995):

    • Collapse of a viewing platform in a national park, resulting in 18 deaths.

    • Accountability: Judge Noble determined that no single individual or group was solely responsible.

    • Pressure within the System: The Department of Conservation (DOC) faced pressure to build tourist facilities.

    • DOC's outputs included constructing viewing platforms.

    • Platforms like the one at Cave Creek were built by staff and volunteers who were not engineers.

    • Proper drilling was not conducted due to the lack of drills on site, leading to improperly installed bolts.

    • Focus on Output: DOC's narrow focus on producing platforms resulted in quickly and cheaply built structures.

New Executive Model

• New Public Management & The New Zealand Model

  • Technical Accountability

  • De-Coupling & Specialism

  • Arm's length management

  • Financial Accountability

• The Critiques

  • The Headless Chicken school of management - Focus on particular outputs and not on the broader collective outcomes

  • Political Accountability & Independence? - 5 year appointments, political favour - Rankin

2020 Reform Principles (Public Services Act)

• A more holistically unified public service

• Strengthening of the Maori/Crown relationship - Te Ao Tumatanui

• Changes to Employment

  • Employees to be both Crown and CE employees

  • More flexibility - movement between departments combat siloisation of SOEs

• PFA principles still apply: Targets & Siloisation

• Disasters and Law

  • Changing Outcome focus - COVID-19 Responses - Headless chicken management

Administrative Law

• Concerns the decisions that the executive branch makes in the administration of law.

• Overlap of Constitutional and Administrative Law - Administrative law decisions usually have an impact on constitutional law as they often involve the limits of executive power.

• Administrative Law

  • Guides the administration of the executive

  • Provides a remedy against the state

  • Not all dealt with in the courts, exists far beyond the courts.

Administrative Law and the Courts

• The Diceyian Legacy - The Rule of Law

  • 1st Rule - No one is punishable except for a breach of law - No arbitrary public actions

  • 2nd Rule - Legal Equality before the Ordinary Courts (no one is above the law) - No specialist Administrative rules, Tribunals, or Courts.

  • Assertion that the courts will have a role in reviewing executive action if they breach the law themselves.

• The Droit Administratif

  • A separate system of courts for the execution of Administrative Law

  • Lead by a Conseil d'Etat - a 'council of state'

  • Prospective Role - They can strike down laws that are in breach of executive power before law can be passed.

• Features of the system

  • Administrative Experts act as staff of courts

  • Cheap to use

  • Specific Remedies and Procedures focused on what the executive does.

Sandbox Theory - Red Light

• Based on the Diceyan Rule of Law

• Role of Courts (Ordinary) to ensure the executive can only operate when it has the legal power to do so

  • Their job is to keep the Executive within the powers that Parliament gives it - (The executive goes too far "Red light, go back)

• Criticisms - Based on the fact that Parliament will create strong rules that will keep the executive in check. However in reality due to the political power the executive holds over Parliament, the executive through Parliament can "make the box bigger" - they can change the rules to suit them.

  • Recent example - Equal Pay Act - Passed under urgency by the executive in one afternoon.

  • The state Dicey was talking about was the "watchman" state - didn't do much, fought wars, income tax was a new concept - provision of welfare, roads, health etc was not seen as significant as it is today. Today significant bueraractic process needed to control the modern day complex state.

  • Significance of Discretion - Rules for everything cannot be created.

Green Light Theory

• Criticsm of Diceys theory

• 'Where law ends tyranny begins' - incorrect, when Executive goes out of the box it is discrection, needed in modern governance

  • 'Where there is Discretion there is arbitariness'?

• The issue is not to remove discretion, but embrace and understanding it. Involvement of the law in controlling the discretion.

• Red Light Theory - 'Ambulance at the cliff' - Green light theory - legal checks 'within the box', internal controls, helping the government make good decisions, focus on getting it right rather than the ex facto red light idea about remedy.

• KC Davis - Management of discretion - 3 things:

  • Confining Discretion - Legal framework in which it works

  • Checking Discretion - Creation of a means of checking discretion

  • Structure Discretion - Discretion should be both assissted and constrained in decision making - Ensure the decision maker only focuses on the decision at hand, to assist them in making the decision

  • Open, participative and legitimate decision making

• A system to ensure good decision making

• What should a 'Rule of Law' for thr 21st Century contain?

  • Recognition of the role of discretion

  • Legitimation of that discretion

  • The structuring, confining and checking of discretion

  • We must not replace one example of un-restrained discretion (the executive) with another (the courts)

The US Model

• Embedding of this management model in the US Administrative Law.

• Constitutional Basis - 5th (& 14th) Amendments

  • "No person shall be … Be deprived of life, liberty, or property, without due process of laww…"

  • A Supreme Constitutional Court

• The Administrative Procedure Act 1946 - tries to employ the ideas of Davis - All federal agencies have to follow the procedures laid down in the act. KC Davis was heavily involved in the creation of the act.

  • Creation of regulations in the US, procedure of system within each agency - let people know, appeal processes etc.

  • Open Government - access to government information

  • 1966 FOIA, 'Sunshine Act' 1976.

NZ Model

• Judicial Review

  • Ultra Vires - Acting outside of jurisdiction - Courts getting into the box

  • Dicey still relevant - Courts have to justify how they get into the box. Courts are not designed to deal with administrative procedure - they do not have the knowledge nor specific remedies that other specific administrative justice regimes have.

• Administrative Justice

  • Ombudsmen & Other Watchdogs

  • IPCA, Auditor General, Parliamentary Commissioner for the Environment etc.

  • Transparency and Access to Informaiton (Official Information Act 1982)

  • Tribunals

  • Inquiries

The Limits of Judicial Review

• Complex - Have to follow the paper trail

• Expensive

• Lack of Public Law Specalists

• Lack of specific remdies, no damages can be awarded under judicial review

• Who uses Judicial Review:

  • The Wealthy

  • Pressure Groups/NGOs

  • The "Dillusional" - constitution works in a way in which it doesn't

• For the rest of us, the Administrative Justice system is Administrative Law

The Ombusdman

• The History of the Ombudsman

  • Originally a Swedish concept - 1809

  • Justiteombudsmannen

    • Checking of the administrative process

    • Prosecution power - If rules breached, cance of prosecution

  • The Danish Ombusdman - 1953

    • Expansion of the social/welfare state - problems of challenging it.

    • Ombudsman set up, can investigate but no prosecution power. Provision of guidance.

  • New Zelaand - 1962

    • Adoption by chance - Growth of the state, government not too keen about the courts getting involved but increasing want for ability to challenge. NZ found the Obudsman by chance at conference

    • An Officer of Parliament

    • A limited, investigatory institution

  • NZ's Multi-Talented Ombudsman

    • Maladministration 1962

    • Ombusdmen Act 1975

    • Freedom of Information 1982

    • OIA, and Local Government Offical Informaiton and Meetings Act

    • Whistle-Blowing 2000

    • Protected Disclosures Act

    • Place of Detention

    • Persons with Disabilities

  • Primary Roles of Ombudsman

    • The Ombudsman Act:

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

    • Offical Information Act and LGOIMA:

      • To investigate complaints about decisions made on requests for offical information

      • To form an independent opinion as to whether such decisions are justified under this legislation.

  • Purpose of the Ombudsman

    • Post-War Growth of the State - Development of the welfare state - much more interaction with the administration of the executive

    • More expected from Government and its institutions

      • Complexity of Government

      • Perceived remoteness of Government

    • Institutions of Government increasingly under inquiry

      • Perception of lack of institutional accountability

    • Sir Guy Powles - 1st NZ Ombudsman - "The Ombudsman is Parliament's [person], put there for the protection of the individual, and if you protect the individual, you protect society."

    • Hugely influential on development of Ombudsman in NZ

    • An "insider" - Legally trained, worked in public service, applied a mild "legalistic" approach to complaints made about the public servic/executive.

• The Office of the Ombudsmen

  • An Officer of Parliament, appointed directly by Parliament

  • Independent from Executive

  • 5 year term - Governor-General appoints on recommendation of Parliament

  • In Practice, appointed on recomendation by the Officers of Parliament Select Committee

  • Funding provided directly through Parliament

  • Ombudsmen report to the Officers of Parliament Select Committee

  • The Ombudsman's view

    • Fits somewhere between the Courts and the Executive

• The Ombudsmen Act 1975

  • Wide Jurisdiction

    • Investigation of complaints about the acts or decisions of central and local government agencies that affect persons in their personal capacity

    • Institutions subjected to Ombudsmen

      • Central Government & Local Authorities (but not council decisions as seen as democratic)

      • Almost all Crown Entities and Public bodies (School Trustees, Universities)

    • Exclusions to Jurisdiction

      • Lawyers, MPs and Ministers of the Crown

        • But advice given to a Minister by an agency that is subject to this Act is not excluded

      • The Police

        • Jurisdiction now falls to the Independent Police Conduct Authority of New Zealand

      • Local Council Decisions

      • Decisions of Courts, Tribunals or Parole Board

  • The Remedy of Last Resort

    • An Ombudsman's investigation is a "remedy of last resort"

      • Complainants are expected first to exhause internal avenues of complaint

      • May not investigate (ss13(a))

        • Where appeal right to a Court or Tribunal exists unless "special circumstances exist"

      • Discretion not to invesigtate (s17)

        • 12 month dealy in application

        • Adequate remedy avaliable elsewhere

        • Trivial complaint

        • Further investiagtion unncessary

      • Around 12,000 "complaints" received each year

        • 2017 11,846

    • Huge Growth

      • 2006 - 6,000

      • 2013 - 13,684

      • 2017

        • OA = 2,191 complaints (8,198 "contacts")

        • OIA/LGOIMA = 1,422 Complaints

      • Subject matter of complaints varies from the "serious" to the "trivial"

        • But the complaints are always important to complainant

The Process of an Ombudsman Investigation

• Complaints can be registered in any way

• The Service is Free

• The focus is on the Dispute

  • No need to have a particular claim

  • Resolve complaints during the investigation process, if possible

  • Most disputes are solved informally

  • There is no precedent from an Ombudsman's recommendation

• A Finding of Maladministration: s 22(1)

  • The Ombudsman can return a critical finding on the grounds of:

    • Illegality

    • Unreasonableness

    • Made under an unreasonable enactment

    • Based on a mistake

    • Using a discretionary power wrongly

    • The decision was plainly "wrong"

      • Colloquially referred to as "Maladministration"

The Outcomes of Ombudsman Inquiries

• Focuses on righting the actual wrong

• Section 22(3) Outlines some remedies:

  • Further consideration

  • Cancelled/Change

  • Change of Practice

  • An Enactment should be reconsidered

  • The Giving of reasons

• But, the Ombudsman is not limited in the remedies they can recommend

• If a complaint is sustained, an Ombudsman can make any recommendation he or she shees fit

• Ombudsman Recommendations do not have force of law

  • Ombudsmen rely on powers of persuasion

  • But Government agencies accept Ombudsman recommendation, no example of a Government agency rejecting a decision of the Ombudsman.

• Ombudsman vs MPs

  • MPs have a political position, thus may disagree with complaints made

  • Ombudsman has wide powers in regards for getting information, MPs dont have such power and have similar power to us when it comes to disclosure of information from government agencies etc.

• If a complaint is sustained, an Ombudsman can make recommendation he or she sees fit

  • The focus is on remedying the complaint, and ensuring such actions don't occur again

• Ombudsman Recommendations do not have the force of law

  • No power fo enforcement

  • Ombudsmen rely on powers of persuasion

    • But Government agencies accept Ombudsman recommendations - why do they?

      • Political Redress

      • Minister not practically responsible - doesn't want to get "tarred" with the same brush of public servants etc working under them.

Should Ombudsmen be subject to judicial review?

• S25 OA

  • Not to be subject to review except on the grounds of lack of jurisdiction - e.g. There recomendations brough them out of their box of jurisdiction and as such the courts can act.

  • Courts and Ombudsman both operate differently and have different remedies/legalistic v non-formal mechanisms etc.

  • S 25 does not apply to OIA investigations (s29(2) OIA)

    • Ombudsman's decisions on OIA complaints can be reviewed in Courts

    • Courts rarely pass judgement on OIA complaints.

  • FSCL v Chief Ombudsman [2022]

    • An appeal over the decisions of the Ombudsman to refuse the use of the term Ombudsman in the Financial Services Complaints Ltd complaint scheme.

    • Under s 28 of the Ombudsman act the use of the term is a protected term, use only with permission of the Chief Ombudsman.

    • Ombudsman decision appealed, held that the information that the Ombudsman used, in regards to confusion around the varied use of the term, were not enough in that they didn't provide enough relevant consideration in the decision that the Ombudsman made.

      • Problem: Courts overriding the decision of the Ombudsman. Quite dangerous, both mechanisms are very different. Ombudsman Act has been now amended - decision now rests with the minister.

Courts and Ombudsmen: The Supreme Court of Canada

• BC Development Corporation v. Friedmann [1984]

  • View held by jduges in NZ

    • If courts getting involved, you risk changing the nature of the Ombudsman and the nature of the green light administration

The Ombudsman as Fire Watcher

• Annual reports of the Ombudsmen

  • Raise issues of concern within the Administration

  • ACC internal complaints mechanisms

  • Own Motion Investigations s13(3)

    • Access to EQC (Earthquake Commission) Information 2013

    • COVID-19

      • Publication of Recommendations

        • Recommendations to avoid future disputes

    • Special Oversight of Prisons

      • 1984 Corrections Act/1989 Crimes of Torture Act

60 Years of the NZ Ombudsman

• The Positives

  • An incredibly effective institution

  • Over 70% of people know of the existence of the institution

  • Huge increase in demand for services

• Challenges

  • Problems Around Funding

  • Ombudsman not alwaays keeping pace with demand

  • The EQC and delays

  • Lack of Respect from Executive?

Inquiries

• Established to investigate or examine a particular subject or event. They are not dispute mechanisms.

• Inquiries are only advisory in nature and do not deliver enforceable verdicts.

• Developed as a method of finding information and investigating matters, for future decision-making by Parliament or the Executive.

• They are designed to be able to illicit information from witnesses, compel individuals to produce documents allowing it to find answers to questions put before them.

Types of Inquiries

Political Inquiries

• Parliamentary Select Committees Inquiries. Select Committees can call witnesses and demand documents be presented, but they can be influenced by political factors. They are not subject to judicial review and rarely investigate the actions of individuals.

• Established directly by ministers by notice in the Gazette

Administrative/Executive (Governmental) Inquiries

• Ministerial/Departmental Inquiries - Internal government inquiries undertaken to inform policy choices, review internal procedures, or investigate incidents. They report to the Minister who initated the inquriy. Statutory basis now under the the 2013 Inquiries Act, before they were established by the royal prerogative.

• Statutory Inquires undertaken on the basis of particular statutory provisions (such as the Transport Accident Investigation Commission Act 1990) - aim to provide an inquiry, triggered by particular events (e.g. Transport incident or accident).

• Subject to judicial review

• Largely Undertaken by public servants

Independent/Judicial (Public Inquiries)

• Royal Commissions/Commissions of Inquiry

• Ombudsmen Inquiries

• Agency Inquiries (e.g. Inquiries of the Human Rights Commission or the Securities Commission) - Inquiries into areas within the agencies remit that they deem important. These inquiries are covered by their individual statutes.

Royal Commissions/Commissions of Inquiry

• 2013 Inquiries ACt lays out methods of appointment of the Commissioners who are the investigating authorities/

• Royal Commissions are inquiries deemed to have sufficient public importance. In these cases, the Royal Commissioner is appointed by the Governor-General under Letters Pattent, rather than a Minister under statutory powers.

Judicial Review and Inquiries

• Although inquiries may operate like courts - the use of counsel, cross examination of witnesses etc, they are not courts.

• While Inquiries are not courts, and do not have powers of legal enforceability, the courts in New Zealand have had a significant impact on the operation of inquiries, primarily on the application of rules of natural justice to the inquiry process.

• An inquiry, that is outside of Parliamentary privilege are subject to review by the courts. If an inquiry act ultra vires, then it would be subject to being constrained by the courts.

Air New Zealand v Mahon

• Concerned the Royal Commission of Inquiry into the crash of Air New Zealand aircraft on Mount Erebus in 1979.

• Justice Mahon, who was chairing the inquiry referred, in his recommendations that the evidence that Air New New Zealand gave as a “litany of lies”.

• Air New Zealand sought judicial review of Justice Mahon’s ruling. The court held that the Mahon had breached natural justice by not allowing Air New Zealand to respond to the allegations, and that he acted ultra virus in his findings of perjury.

Official Information

• Transparency in regards to public information = prerequisite to administrative justice and democracy in general.

  • You have to know the relevant information behind executive decisions and processes to know whether the decision and it’s process was right and just.

  • Striking a balance - Freedom of information release vs individual and collective information that would not be in the best interest to release (e.g. information on health, the police, trade, finances, the defence force).

History of Information Provision in NZ

• The UK Official Secrets Act 1911 Applied in NZ prior to 1951. Prior to 1911, no official legislative framework for states secret in Britain.

• Early 20th century, dramatic increase in surveillance and state spying in the lead up to the first world war. Became a statutory duty for public servants, disclosure of official secrets was illegal.

• Under 1911 act - presumption of secrecy. All public documents were classed as official and thus an offence to release them unless specifically authorised by a minister or delegate.

• New Zealand adopted the Official Secrets Act in 1951. This maintained the presumption of secrecy. Information could be released if it was in the public interests.

• However, over the years, there have been calls for greater transparency, larger state, larger government = lots of information.

• The 1970s saw the introduction of the Wanganui Computer. Brought together info from the Police, MOT and the Justice department.

• The Labour government under Robert Muldoon became involved in a variety of economically risky ventures. Many wanted the information used to justify these ventures available to the public.

• This led to the establishment of the Danks Committee on Official Information in 1978.

• The committee aimed to address concerns regarding transparency and access to government-held information, ultimately leading to the formulation of the Official Information Act in 1982.

  Radical Change Suggestion

  • Repeal and replacement of the OSA.

  • Shift from presumption of secrecy to presumption of disclosure.

  • Official Information Act 1982 enacted - 'a presumption of disclosure' (s 5)

  Management of Information Today

  • Statutes

    • The Official Information Act 1982

    • The Local Government Meetings and Official Information Act 1987

    • Privacy Act 1993

  • Common Law Principles

    • The Duty to Give Reasons

    • The Emerging Tort of Privacy

  The Official Information Act

  • Who Does it Apply to?

    • Public Bodies defined by A statutory List

    • Cannot be extended bt interpretation

    • Parts I and II of Schedule 1 of Ombudsmen Act

    • Plus OIA Schedule 1

  • Wide List

    • Departments/Ministries

    • SOEs - but not other State owned companies

    • Many Crown Entities and other Public Bodies - e.g. Universities and School Boards

  Purpose of the Act

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

  • The main purpose is not the complaints mechanisms

  • Purpose into Principle: Section 5

  • The Principle of Availability

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

  When can Information be Withheld?

  • No classes of information are excluded

  • Conclusive Reasons for Withholding - s6

  • "Other" Reasons to be Balanced with the Public Interest - s9 - Can be withheld only if public interests doesn't outweigh the reason to withhold

  • Administrative Reasons - s 18

  Conclusive Reasons

  • Information that would be likely to

    • Endanger the Safety of any Person

    • 'Prejudice'

    • Security, Foreign Affairs, Law and Order, International Confidentiality

    • The Relationship with the Cook Islands, Niue, Tokelau, Ross Dependency - s7

  • Information that would 'damage seriously' Specific Elements of Economic Policy

    • Exchange rates

    • The regulation of banking or credit

    • Taxation

    • Price Controls

    • Borrowing

    • Trade info

  Non-Conclusive Reasons

  • Privacy of Individuals

  • Trade Secrets

  • Health and Safety of the Public

  • Legal Privilege

  • The Effective Conduct of Public Affairs - "Free and Frank advice"

  • State Commercial Activities

  • Information that would likely "prejudice" the substantial economic interests of New Zealand

  • Section 9 - Non-Conclusive Reasons for Withholding

    • Presumption of Secrecy that can be rebutted if the release of the information is still within the public interests.

  • Section 18 - Practical Reasons for Withholding Information

    • Contempt of Court

    • Contrary to Primary Legislation

    • Soon to be released

    • Doesn't exist/can't be found

    • Substantial collation/research

    • Not held by department or public body

    • Frivolous/Vexatious

  Using the Official Information Act

  • Simplicity - No formality requirements - may be made by any form and communicated by any means ss1(1AA(a))

  • Most people never know they are using it

  • The Directory of Official Information - Very Basic Guide to Public Information

  • The Process

    • 20 days to respond