Administrative Law Flashcards

Sandbox Theory (Red Light)

• Based on Dicey's Rule of Law.

• Courts (ordinary) ensure the executive operates only with legal power.

  • Their job is to keep the executive within the powers granted by Parliament.

  • The executive goes too far: "Red light, go back."

• Criticisms:

  • Assumes Parliament creates strong rules to check the executive.

  • In reality, the executive can influence Parliament to "make the box bigger" by changing rules to suit them.

    • Recent example: Equal Pay Act passed under urgency by the executive in one afternoon.

  • Dicey's state was a "watchman" state (limited functions).

    • Didn't do much, fought wars.

    • Income tax was new.

    • Provision of welfare, roads, health, etc., wasn't as significant as today.

    • Today, a significant bureaucratic process is needed to control the modern, complex state.

  • Significance of Discretion:

    • Rules for everything cannot be created.

Green Light Theory

• Criticism of Dicey's 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.

• 'Ambulance at the cliff' (Red Light Theory) vs. legal checks 'within the box' (Green Light Theory).

  • Internal controls, helping the government make good decisions.

  • Focus on getting it right rather than ex-facto 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 the 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).

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 law…"

• 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 the 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 Information (Official Information Act 1982).

  • Tribunals

  • Inquiries

The Limits of Judicial Review

• Complex - Have to follow the paper trail

• Expensive

• Lack of Public Law Specialists

• Lack of specific remedies; no damages can be awarded under judicial review

• Who uses Judicial Review:

  • The Wealthy

  • Pressure Groups/NGOs

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

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

The Ombudsman

• The History of the Ombudsman

  • Originally a Swedish concept - 1809

    • Justitieombudsmannen

      • Checking of the administrative process

      • Prosecution power - If rules breached, chance of prosecution

  • The Danish Ombudsman - 1953

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

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

  • New Zealand - 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

  • Ombudsmen Act 1975

  • Freedom of Information 1982

    • OIA, and Local Government Official Information 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

  • Official Information Act and LGOIMA:

    • To investigate complaints about decisions made on requests for official 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 recommendation 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 exhaust 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 investigate (s17)

    • 12-month delay in application

    • Adequate remedy available elsewhere

    • Trivial complaint

    • Further investigation unnecessary

• 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 the 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. Their 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?

Administrative Justice: Courts and Non-judicial practices

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

  • Administrative reasons: you have got to know how the information relevant to executive decisions and processes to know whether the executive where right and just. How do we know the government is doing well if we can't get relevant facts to their decisions.

• Striking a Balance - Freedom of Information lease vs Individual and Collective information that would not be in the best interest to release (Info on defence force, police, trade, finances, health data etc.)

• History of Information Provisions in NZ:

  • The UK Official Secrets Act 1911 - Applied in NZ. Prior to 1911 no official legislative framing for states secrets in Britain. 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.

    • Any public document was classed as official and it becomes a criminal offence to release it unless a minister or delegate to release it.

  • 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.

    • Executive Discretion to release - Criminal Offence to release otherwise

• A changing mood - Concerns with Government Information in NZ

  • Post-war Government becomes bigger, development of the social state = lots of information.

  • In the 1970s development of the computer - Wanganui Computer Centre - 1976. Lots of government information brought together, cross referencing.

  • Muldoon's Government - undertaken large, risky economic ventures - argument that the information used to justify these ventures was not available. Setting up of the Coalition of government.

  • Committee on Official Information set up 1978 - Danks Committee

    • Suggestion of radical change - repeal and replacement of the OSA.

    • Shift from a presumption of secrecy to a 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

Tribunals

• Dicey's rule of law - 'All equal before the ordinary courts'

• Is NZ court system completely unified:

  • Specialist Courts

    • Family Court

    • Maori Land Court

    • Environment Court

  • Tribunals

    • Taxation and Charity Review Authorities

    • ACC Appeals Authority

    • Disputes Tribunal

• Why Specialized - Legomsky

  • If an issue of a general law, it makes sense to deal with it in the ordianry courts. But if the issue is more about discretion rather than the rule of law, it should be dealt with specially (same in regards to more technical matters)

  • Similarity of disputes - takes up unnecessary amounts of time, clogs up the normal courts

  • Disputes isolated from the wider legal system

  • Legal consistency in a specific area

  • Inappropriateness of more formal court procedures - need for adjustment in an alternative court.

• What are Tribunals

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

  • While not part of the judiciary they are still adjudicative and independent (but not fully independent from the executive at times)

  • How do they fit into administrative law -

    • Examples: Taxation review authority - reviews decisions by the executive in regards to tax decisions.

• Why Have Tribunals?

  • Courts operate with the full procedural facets of the judiciary

    • Expensive, Formal processes - 'Rolls Royce Justice'

    • Many administrative disputes are not large but rather minor.

  • 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

  • Sometimes Investigatory

  • Generally, no need for legal representation

• Types of Tribunals

  • Tribunals by Type of Dispute (Law Commissions Definitions)

    • Inter-Partes

      • Disputes Tribunal

      • The Tenancy Tribunals

    • Regulatory/Professional

      • The Lawyers & Conveyancers Disciplinary Tribunal

      • The Real Estate Agents Tribunal

    • Administrative

      • Taxation and Charities Review Authority

      • Alcohol Regulatory & Licensing Authority

      • The Immigration & Protection Tribunal

Administrative Tribunals and the Growth of the State

• Why the need for an alternative to the courts?

  • Administrative decisions multi-faceted - usually involves many parties that have a stake of some sort in the decisions

  • Courts are Expensive

  • Issues often minor

• Justice Issues

  • State is ultimate 'repeat player' - entities that utilize the judiciary system regularly, they have the best lawyers, significant court experiences etc. Broader functions of the tribunal and the inquisitorial function makes it more of an even playing field

  • Remedies - Court remedies designed for generalist use/Private remedies

• Political Issues

  • Avoid Unpopular decisions - government avoids unwanted decisions by setting up tribunals, can control and construct tribunal in their on way

  • Courts - red light.

• Administrative Tribunals in NZ

  • Created by Statute to review decisions of the executive branch

  • Around 17 such bodies in NZ

    • Taxation and Charities Review Authority

    • Immigration and Protection Tribunal

    • State Housing Appeal Authority

  • Non-Statutory examples

    • ACC review Process (internal) and external review process

• Critique of the Current System

  • Law Commission's Tribunal Reform Issues Paper

    • Lack of coherence

      • No Super Tribunal/Umbrella Structure (Australia - every state has a single 'shop front' for every tribunal)

      • No equivalent of Tribunals and Inquiries Act UK (No overarching Tribunal but does set out a broader process for all tribunals, a form of coherence)

    • Lack of Clarity in relation to access and use

    • Lack of Independence

      • Only 16 tribunals within the court structure (hundreds of independent tribunals)

      • Many under authority of parent department or agency

      • Conflicts of interests (e.g., Tenancy Tribunal)

• Tribunal Reform in NZ

  • Law Commission Reports

    • Delivering Justice for all, Law Commission (2004)

    • Joint Ministry of Justice/Law Commission Project

    • Never implemented - Largely political reasons

  • Tribunal Powers and Procedures Legislation Act 2018

    • Omnibus Reform Act

    • Does not create a single tribunal system in NZ (just a tidy up of the variety of acts in which tribunals were based)

    • The NZ systems remains confusing and disjointed

Conclusion

• Public law decision-making doesn't usually fit well within court. The inquisitorial nature of the tribunal system is more suited to administrative law. Multi-faceted and Merits review focused rather than process.

• Provide easy access to review procedures

• Reform must keep their key features - many reform elements focus on tribunals as cheap courts

• Ensure consistency with other aspects of administrative law

Inquiries

• Similarities with Tribunals

  • Both executive bodies outside the judiciary

  • But Inquiries are not dispute resolution (Tribunals adjudicative) inquiries are not

  • Inquiries can appear like tribunals

    • Waitangi Tribunal - Not an inquiry - recommendations only.

    • Commerce Commissions Inquiries - Investigate and makes decisions that are binding in regards to economic cartels and monopolies

    • Inquiries inquire and Tribunals decide

• 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

  • Supply general policy information to the lawmakers (e.g., The Inquiry on Genetic Modification)

  • Investigate a particular incident

    • The Canterbury Earthquakes Royal Commission

    • The Mt Erebus Inquiry

    • COVID Inquiry

  • Independent examination of issues

  • When truth is more important than justice

• Inquiries Act 2013

  • Basis of Most Inquiries Today

  • Replaces 1908 Commission of Inquiry Act

  • Established two types of Inquiries

    • Public (Commissions/Royal Commissions)

      • Established by Governor-General

      • Previously Commissions of Inquiry

      • Inquiries reported to Parliament

    • Government

      • Established by Ministers

      • Previously "Ministerial"

      • Inquiry report is delivered to the minister

    • Both can compel witnesses to give evidence etc, fines applicable if failure.

  • 1908 Commissions of Inquiry Act still in force (statutory tribunals still use it to base their processes)

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.

• Inquiries (and technically all administrative justice elements) are subject to judicial review. Courts are not very willing to do so. Even if the process includes ouster clauses, the courts will always review ultra vires.

• Procedures (section 14 Inquiries Act) - Inquiries set up their own procedures. Judges would restrict inquiries and anything in terms of 'natural justice'

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

Erebus Royal Commission

• Mt Erebus, until 1979 was known as the tallest mountain in Antarctica, unfortunately now remembered for an aircraft crash in 1979. Sightseeing flight to Antarctica by Air New Zealand from Auckland.

• Air NZ was under pressure to diversify profits, Erebus flights natural extension of this.

• Instead of following the safe sightseeing flight path, it flew directly into the slopes of a 12,500ft volcano. Killing all the 257 on board instantly.

• NZ Government, in respond instigated a royal commission of inquiry.

• Statutory Inquiry under the CAA - Air Accident's Authority.

  • "Probable cause of the accident was the decision of the captain to fly low in poor conditions at low altitude…" - Chippendale Report.

• Reluctantly a Royal Commission was established under High Court Judge Peter Mahon

  • Report of the Commission was announced a day before the Chippendale Report was released.

  • Was given a relatively small - 5 months - to report.

  • Mahon gave greater weight to other factors, basically exonerating the pilots. Actions of management and administration that had gone around the management of the flights. These problems had basically doomed the flight before it took off.

  • No sign of poor visibility

  • Mahon - pilots were flying low as it was a regular occurrence and was even used in the brochures by Air NZ. Skill for flying in Antarctica exceptional, pilots had not been specially trained

  • Flight plan was changed subsequent to the flight - did the pilots know?

    • Mahon concluded that the basis of Antarctic flights was not managed properly

    • Mahon concluded that Air NZ attempted to cover it up - 'a pre-determined plan of deception', 'an orchestrated litany of lies'.

    • As a symbolic action awarded costs against the airline

  • Air New Zealand took a review to the Court of Appeal reviewing the inquiry and then to the Privy Council - in terms of both the costs and the cover-up allegations

    • Both redacted bits of the report but did so for different reasons

    • Court of Appeal stated that Mahon went beyond his remit in the inquiry - was to find the cause of the crash and any other matter was not for him to commit on. Natural Justice was not observed and costs order was quashed.

    • Privy Council - Job of the PC was not to examine the jurisdiction of the commission but to review the evidence - to ensure natural justice principles had been applied. PC struck the cover-up allegations from the report and ordered redaction of costs

  • Mahon resigned from the High Court after this.

• The Balancing Act:

  • Natural Justice vs The Job of Inquiries e.g., Natural justice - rules of evidence, the chance for inquiries to be judicialized

  • Did the PC go too far? Maybe - in UK courts are less likely to intervene, Does the Inquiries Act 2013 incorporation of natural justice highlights or ostracizes the inclusion of natural justice in inquiries

The "Winebox" Affair

• Winston Peters leaked information about a Tax Avoidance scheme and associated corruption

  • NZ Company has another company in Cook Islands. NZ company moves profits to Cook island company, pay tax in the Cook Islands and sent profits back to NZ, with a credit note to IRD to show tax had been paid in the Cook Islands. Cook Island government would then give tax money back (albeit tacking a cut for themselves)

  • NZ companies were involved (BNZ was apparently aware of what was going on)

• Investigated by Ian Wishart

• Announced in Parliament and commission of inquiry launched (Davison inquiry) started (SFO had investigated and had said it was legal)

  • Davison reports back stating that it was legal, therefore no comeback on the IRD or BNZ. Winston was criticized for getting the law wrong.

  • Winston did not take this likely and asked for decision to be reviewed

• Peters v Davison [1999] 3 NZLR 744

  • Commissioner held to have made an "arguable" error of law.

  • Prima facie, the scheme was fraudulent

  • References struck from the report along with related criticisms of Winston Peters.

Inquiries Conclusion

• Inquiries are not courts

Administrative Justice Conclusion

• The Bulk of Administrative Law disputes are handled by the Administrative Justice Sector

• A combination of Red Light and Green Light mechanisms - Courts are still influenced by dicey and formal process, sit external to the executive.

  • Reflects the confused nature of the NZ "system" of Administrative Law generally.

• The Relationship between Administrative Justice and Judicial Review can be difficult

  • Inquiries Example

  • Contrasted with Ombudsman - potential for judicialization - shift to the red light model