Untitled Flashcards Set

Parliament:

5 purposes/functions of parliament:

• Parliament Provides a government, i.e. a “political executive”. Democratic representation of the people

•  Represent the people

•  Power to raise public money and approve spending

•  Consider and pass legislation

•  Scrutinise and keep in check, to various degrees, the political executive it provides. Exec gov can be held accountable, as well as political exec, to provide a check on exec power.

Executive branch:

Separation of power:

Accountability:

Relation to parliament:

The Executive:

The Prime-Minister appoints a Cabinet of Ministers with a variety of portfolios (few Ministers have only one responsibility). This provides them both with the responsibility to develop policy and make decision in the area in question, but also direct the actions of administrative departments and agencies while taking responsibility for the actions of those agencies and departments.

Collectively such Ministers will comprise the Cabinet, again a creature of Convention and the highest executive decision making body in the country. In practice it is this body that makes the decisions that drive New Zealand. It's formal double is the Executive Council, which passes executive legislation. However, such decisions are not debated in the Executive Council having already been made in Cabinet – under the direction of the Prime Minister.

The development of MMP and minority government has increasingly led to the phenomenon of Ministers outside Cabinet. This innovation has been incorporated relatively smoothly into the New Zealand Constitution. This emphasizes how Conventions tend to follow the practicalities of governance rather than the formal position.

members of parliament, must be elected

Concentrated map of power: puts executive in dominant section of power in nz

What executive does: delivers rules, provides direction for the state. Shouldn’t make law but exec branch do make law. Royal prerogative (remaining royal powers)

• Delegated legislation, parliament passes laws and provides authority to the executive to pass further laws to implicate legislation

• Deemed regulations; things that department powers have the same impact of legislation, ie building act

• Majority in parliament is executives. Executives make regulations.

Local councils apart of exec branch. Under because local gov is created by statue, so executes public policy. Even though we elect local gov.

Political exec: prime minister (head of gov in NZ). The invisible job. Until recently no mention of PM in legislation, few statues now refer. Powers lie with power to call election and power to appoint ministers. One of the most powerful heads of gov out of states. Cause of informal power. Ability to control parliament, control large parliament as party leader/control majority. PM controls who gets promotions/ministers. Political power, not in the constitution.

• Power to appoint ministers in exec council

• Associate ministers, in NZ everyone is also a cabinet minister

• Role of ministers; policy regulations ie health, education, defence..

Administrative body/executive: executes public policy. 

Public sector, everything part of executive, state and local sectors within that.

 Until public service act in introduced. Implicated an independent public service.

Importance of independence: stops bribery, ambiguity so we get independent advisee and non-political advise from officials, can’t move ministers when new gov comes in that don’t like their policies.

MR: minister is responsible, crucial because connects it to the people.

• PSR have to link to a minister. Crucial a minister has responsibility, minister is responsible to parliament connects to the people.

• Cabinet: largely doesn’t exist. Collective responsibility, once cabinet makes decision ministers all agree to show united front.  Pm can hold vote in cb and make decision, or can just make decision on own. (different realities) public sector looks to what cabinet says.

Executive Law Making Power: Secondary Legislation

Secondary leg, most of it through powers delegated by parliament to exec. Delegate powers in emergency’s ie health ministers. Parliament doesn’t have time for everything delegates power.

Issue: amount of dl is increasing enforced by executive.

Sl examples on slide.

 Separation of powers:

Tricky as, direct elections relies on parliament keeping exec in check, but executive controls parliament, infused together. (no separation of powers).

Executives:

PSA principles:  chief executives run agency, responsible to business. Chief exec must act independently.

Chief exec, can spend money as wish to deliver outputs. Key to the delivery of ps. 

CE Tend to focus on own sections, and avoid collective action.

Ministerial responsibility/question time (PA)

Political accountability:

•  means by which hold broad range of accountability of executive, parliament holds them accountable. Question time where mps question ministers, (12 questions/some can come from people of same party), To scrutinize their actions and decisions.

Ministers must respond honestly to questions. (political responsibility) ministers are not experts.

• Debates and Select Committees: Parliamentary debates and specialized committees examine government actions, spending, and proposed legislation.

• Elections: Voters can hold the Executive accountable by voting them out in general elections.

• NZ executive: accountability. Assume that government is going to look after us, just have election to political accountibity.

Technical Accountability Measures, outputs/inputs:

• Shifted to the new  exec/public management model, moved away from a permanent civil service that just focuses on purpose to a much more focus on targets and efficiency.

• Outputs over outcomes! Outcomes are to broad/hard to measure

• Technical/financial accountability mechanisms, ministers must say what will happen in next 3 yrs, what things are going to be done over the next few years(physical things). Ie outcomes are the big stuff, ie improving health system to help people live longer, healthier lives.

• Problem with outcomes in technical system. How do you measure it for a specific department. Ministers cant always achieve it. Ie traying to cure cancer easier as health minister, but cancer is also caused by bad diets/lifestyles. Can’t have outcomes that are too small, must be a broad outcome.  Outcome is difficult to measure so instead, outputs that relate to the outcome. Outputs have to be something that is measurable. Ie output for reducing road deaths the number of roadside breath tests.

• New public management from 19800s: shift towards this has had some benefits. More efficient system, some would say lots of bureaucratic costs. Improvement to advice given to government. departments are more focused and have clearer objectives/achieving specific things.

Focus on target setting/annual plans and output, rather than outcome in the public service.

• Problems with accountability measures: when outputs become targets it’s hard to achieve the outcome/too much focus on narrow things. (outputs/specific targets look good, but might not hit the correct overall outcome).  Goodhart/professor on slide. (7/5)

• Cave creek tragedy 1995:  students walking in national park to visit cave creek in Westland, the viewing platform collapsed 17 students and doc fell, and 15 died. Study onto what happened after. Accountability by judge noble on slide, where no individual was responsible but the whole system. This platform had been built by staff/volunteers not builders, so key bolts were not attached. (no engender on site).  Process focused on the output of making the platforms under budget, but not at the outcome of building safe platforms. 

• Overall of the NZ exec model on slide. Leads to the public service act 2020, 2020 reform.

• To try and make the service more holistic and move away from the headless chicken approach (more broad, move away from narrow focus on outputs). More unified Public service…

• Has it been an effective? Still have accountability/targets through public finance act.  Think that departments are to focused on specifics would have to reform PFA. 

• While reforms aim to be more holistic, technical accountability structures (like the Public Finance Act)still enforce specific, output-based targets.

• Departments remain highly focused on measurable specifics, which may inhibit collaboration or long-term strategic thinking.

• Suggestion: Reform the Public Finance Act to allow for more flexibility, shared outcomes, and collective accountability across departments.

Administrative justice/law: means to provide guidance for ministers and guidance when something goes wrong/provides a remedy.

Unusual map of power in NZ: role of courts is limited.

Red light v green light theories:

Diceys red light

idea is opposed to the idea of discretion. Wants to keep in exec in a small box so courts can intervene only when something goes wrong. Courts sit outside to uphold the law.

Courts will step in when exec goes beyond its powers/steps outside the box.

Means in practice, courts must wait for something to happen/after an action has occurred to intervein. 

Requires tight legal control, emphasis need to limit/scrutinize public power, supports judicial review/legal controls.

Dicey disliked arbatory decisions/ability to discriminate. 

• No explicit administrative (or constitutional) role for the courts

• No administrative courts

The RED LIGHT THEORY (model)

Does it operate in NZ?

• Realism critique of model; realists say the model doesn’t work like this. Assumes parliament will create the rule of law that courts can play such role/intervene. Problem un written constitution ambiguity on powers of parliaments/courts. only one house/unitarity in parliament. Leads to exec controlling parliament and PM.

• Reality not parliament setting rules but the executive.

• How do put parliament into emergency? Its sovereign, need a majority of parliament to say going into emergency. Bi pass committees, select committee, Fastly pass act.  Exec makes the decision and tends to control parliament.

• Political critique of model: people want/expect things from a state ie health, education, infostructure.. gives more power and discretion to the government.

• Where law ends tyranny begins.. in modern law were law ends discretion begins. Leads to a problem how does this lead to exec having so much power?

Rule that law should play in managing the executive:

• Red light theory… ordinary courts are only there to insure exec only operates when it has the legal power. Courts are to keep them in the powers parliament gives.

• Promblems: relies upon parliaments power/they set the rules/but in practice not in charge of executive can execute most power. Ie NZ equal pay act when changed it in urgency pushed it thorough in an afternoon. Demonstrates exec power.

• Idea dicey approach is wrong. Green light theory that emerges. Where law ends discretion starts arba../modern law.

Green light:

Idea that government has best interest for public good/trust the government.

Internal accountability, efficiency and collaborative government. Relies more on parliament and internal checks than government. Ie performance measures, strategic planning, outputs..

• David says not to remove discretion but embrace it and understand it. Green light theory: expects the fact the state is bigger. Courts and judges can get in the way sometimes. About recognising policy/law recognising discretion.

• Focus on internal controls helping the gov make good decisions/insuring decisions are made right in the beginning.

• Kc davis: administrative law system should be involved in discretion. Do three things, check, define and structure desertion. Define: give it a legal framework/clear parameter. Check: have some process where it is checked by other people. Structure: officials choices should be structed/restrained. Ie decision on X must have to take in discretion ie environmental.. want to ensure decision maker, is not making corrupt decisions and to help them make good decisions. Give assistance and guidance in the decision making process. Ie open decision making and participation were others have opportunity to be involved/offer advice. According to davis creates a better decision making not just stopping bad decisions when they went wrong ie red light.

Modern rule of law:

• Recognise  role of discretion, structure confide and check it. According to green light model.

•  

• US follows this model better (on slide) on their constitutional basis. A system of national administrative law belong dicey’s limited view. In NZ don’t have quite systematic approach. Developing, still beyond diceys view, with increasingly courts being involved. Courts have to justify how they get in/are ordinary courts don’t have specialty remedies…

Administrative justice In NZ:

 Elements of the model that operates primarily outside the courts. To challenge a public law decision in court its expensive/ on process have to show that process was breached/wrong, have to find an error through paper trails. Remedies are quite limited, no damages.

When decisions by government feel are wrong/breach of law, go to administrative law.

Limits of judicial review: does set a number of rules/processes for what exec can do. But not accessible for the vast majority of people. Administrate justice system is administrative  law, more accessible for the majority.

What is administrative justice and why has it developed?:

• challenging executive and the state.

• Accountability mechanisms on decisions and procedures to protect individuals

• More delegated authority's

• Discretion (locke, when law ends…) k.c Davis, where law ends discretion begins

• Discretionary power can be abused, mechanisms to control

• Parliament unable to make decisions on everything, need to delegate discretionary power.

• With mechanisms/ accountability for.

Ombudsman: response to the growth of the state need for accountability mechanisms

• Receive and investigate complaints about conduct central and local government.

• Recommendations and remedies to improve processes.

• Supervisory recommendation, can direct release of official information.

• Ensure prisons/places of detention are meeting standards/their rights aren't being violated.

• Stumble alongside wrongdoing

Advantages:

• Not legalistic, cheaper/no legal costs

• No limits on recommendations, can recommend the recommendation they think is right, unlike courts. informal system to make complaints

• Recommend changes to legislation.

• recommend apologies/practical recommendation's

• Effective, rec are taken seriously. Are very rarely ignored. 

• 2023 cashmere school board rejected recommendations

• Gov dep don’t want negative media attention from not responding to recommendations

• Doesn’t have to wait for a complaint to investigate

• People appointed to ombudsman are highly respected individuals  know lots about gov

• Doesn’t set precedent, done case by case

Limitations:

• Recommendations are not legally enforceable, although almost always effective

• Choose not to investigate/dismiss complaints. Ie old complaint or frivolous

• Risk don’t get the correct outcome/human process always going to be discretion

• Cant look into certain bodies ie police  (diff body)

• Democratic decision making of local gov not covered(could look at enforcing decision making)

• Must wait until Right of appeal

Are arguments in favor and against courts reviewing non judicial systems of administrative justice.

• No, risk omb might act differently/conservatively

• Make it more expensive, undermine the omb system. Setting up a clash of cultures. Parliament has seen fit to set up such bodies, to be expert in specialists. Set up judicial review for then undermining parliaments intention.

• Courts are cautious to judicial review of omb, something must go very wrong for them to review

• In favor, someone to check the omb, courts function that any body with statutory power, should be in accordance to the law. Courts role to enforce following the law.

• These bodies can go wrong, should be a final check by the courts as a result. Ie royal commission inquiry ex. .breached rule of natural justice. Ensures compliance with basic compliance of fairness.

• Non judicial body went wrong, judicial body corrected it.

Public information:

Public information:

Collective info: defence, intelligence info, police actions.

History in NZ:

 Nz OFA 1951, lead to the situation where most gov information was an official secret.

Changing mood – computing power, brought together a lot of gov information, so could cross check info.

Raised concern about information that gov now holds.

Move to  presumption of openness/disclosure. 

How do we manage info today?

Statues on slide

Common law principles.

Wider legal framework around information.

 The official information act

Who does it apply to?

Almost everything within the public sector. Lots of public bodies.

Open approach to public information.

Purpose of the act, s4 on slide

S5 key point. The principle of availability. Info must be made available unless there is a good reason for withholding it. Flips the essence of 1955 act.

When should info be withheld: s6-s18

S6 conclusive reasons

If the info would be likely to endanger safety… look at slide.

S9 non-conclusive reasons.

Can be overridden, a rebuttable presumption in favour of withholding, if public interest is found to be stronger.

S18 practical reasons

Using the act, simplicity..

Process – 20 days to respond.

Moved to a system where vast majority of info is available.

Flaws: structural problems…

Playing the system:

Got to know info exists in first place, know the information exists. Different agency’s react differently to asking for information. Some are more helpful than others.

Overly bureaucratic: whole point of act is to encourage good behaviour, make stuff available.

Has the Official information act, changed openness? Yes it is better than before act, must more open available information. Proactive release ie get to see cabinet papers. 

Tribunals:

Series of entities outside courts that provide another area of administrative justice/form of specialist justice. Not courts or apart of formal judicial structure. Still decision making. Provide recommendations to exec. Independent.

Dicey rule: all equal before law, everyone under same ordinary court,

Why have special courts/go against diceys rule? Judges are general, not going to have special knowledge. Some things don’t want shared in general courts. good reasons to specialize.

If an issue is of general law, normal court. If issue is about discretion/technically complex might not be best for general court.

• Similar disputes, courts are over loaded/expensive.

• Formal judicial procedure might not be appropriate for certain issues.

So NZ does specialise.

Courts are highly procedural, tribunals allow simplified procedures, reduce costs, quicker, less formal process, more accessible justice.

Features of tribunal procedures:

On slide. Why do courts like process? Reason to drive consistency, adversarial system procedural based model. Tribunals are more inquisitorial, less restricted procedurally. Precedent often not applied in tribunals

Critique of the current system

Not really a system?

Lack of coherence/clarity/people don’t realise tribunals exist/ how to use.

• Law Commission's Tribunal Reform Issues Paper

• Lack of coherence

  • No Super Tribunal/Umbrella Structure (Aus)‏

  • No equivalent of Tribunals and Inquiries Act (UK)‏

• Lack of Clarity in Relation to Access & Use

• Lack of Independence

  • Only 16 tribunals under Court Structure

  • Many under authority of parent department

    • Conflicts of Interest (e.g. Tenancy Tribunal)

Issues of independence: many set in authority of gov department that reports to gov/courts.

Issue: don’t have an overall structure for tribunals in NZ.

Tribunal reform in NZ: partly political.

Issue with judicial involvement in tribunals, make them more formal, wouldn’t keep them separate.

System still remains confusing and disjointed.

Conclusions: still provides an alternative where individuals can take action against the state.

Inquiries:

Inquires and tribunals:  independent like tribunals

Key difference, inquiries do not decide anything. Tribunals make decisions/inquiry don’t.  

What do they do? About finding out the truth.

• Non decision making, investigatory, advice on policy, when enquiry is finished publishes inquiry or facts. About questioning the provision of information. Statutory inquires; ie traffic accidents. Inquires through parliament…

Truth is more important than justice, focuses on the better argument. Ie focus on fixing. Inquiries are good when you want truth but can’t excursive justice.

Problem with natural justice: Air NZ LTD v Mahon

• Inquires on what happened in disaster, courts intervened with inquiry.

• Raised Issues about what the job of court.

Courts intervening/applying own processes makes inquiries judicial.

Issue if judicial review gets more involved in green light administrative law, in some aspects, inquiries get judicialization, processes become more formal, shift more towards red light theory.