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Administrative Justice Summary
Public Law (University of Canterbury)
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INTRODUCTION/BACKGROUND
Admin justice refers to the principles, processes and procedures that govern the exercise of
administrative powers by government bodies and public officials, ensuring their decisions are
fair, reasonable, transparent and in accordance with the rule of law. JR is an undeniably
effective institution with high constitutional Elmoonalle, but it has limits. In light of this, the
non-judicial elements of admin law are vital and offer solutions to citizens without great
expense or complexity. These non-judicial elements can be viewed as a response to the
growth of the state and the need for accountability (Boven). Ministers, officials and other
public bodies must account for and be accountable for the decisions they make. To focus on
JR is not realistic in the realm of admin justice as it is complex, expensive, specialist and not
readily available for the vast majority of Nzers. For the non-wealthy, administrative justice IS
administrative law. Thus, the non-judicial elements or Aotearoas administrative law dirt
increasingly dominate the administrative justice system. These elements include the
ombudsman, access to info/transparency, & Inquiries.
BACKGROUND
- Admin law in NZ owes its roots to Dicey, whose ideas are crucial to our
understanding of the system.
- Red light theory states that "the primary function of administrative law should be to
control excesses of power, and more precisely, subject it to the rule of law courts.
- Dicey's = "where there is discretion, there is room for arbitrariness"
- Realist and political critiques of red light theory, as it does not accurately reflect the
reality of the NZ constitution and the essence of the state.
- KC Davis, in juxtaposition, argued that "where law ends, discretion begins. This is the
essence of the modern state and encapsulates the Green light theory, which sees
administrative law as a vehicle for political progress.
- A more appropriate ROL for the modern century should contain a recognition of the
role or discretion, legitimation of that discretion, and the structure confining and
checking of it."
- NZ lights stuck at amber (H&R).
Ombudsman
- OBM is arguably the most important element of our non-judicial administrative law
system.
- It’s a classic green light model of admin law, operating as a middle ground between
the executive and the court.
- Born in Scandinavian jurisdictions, adopted in NZ in 1962
OBM is designed to provide a readilv accessible, relatively informal system for
resolving grievances.
- The introduction of the office was a significant development for subjecting the public
office service to scrutiny and account and promoting access to justice.
- Using procedures is a free public service to maintain proper accountability in the
public sector.
- Sir Guy Powles, NZ's 1st OBM, held, "The OBM is Parliament's person, put there for
the protection of the individual. If you protect the individual, you protect society."
- OBM has two primary roles: acting upon the complaint as the citizen’s protector in
righting administrative roles and administering the OIA 1982 to investigate upon
complaint that information has been wrongly withheld.
- The office of OBM is the antithesis to the courts of law:"
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OBM procedures are inquisitive, unlike adversarial court procedures, are flexible and
informal, conduct their motion investigations, and have powers to obtain information
in their inquiries.
Do not have a binding power of decision but a power of recommendation that is
always followed.
Advantage of the OBM is that it provides independent oversight, is accessible and
free,
whereas litigation is costly, involves delays, and risks less than optimal outcomes
through normal judicial remedies.
Informal and flexible and promotes efficient solutions that often lie beyond the
capabilities of the Courts, with its investigative powers being proactive.
The Massive increase in demand for services illustrates that it is an incredibly
effective institution and over 70% know of its existence.
However, around 12,000 complaints are made annually.
With increasing caseload, it is questioned whether the OBM can adequately discharge
their role or are sufficiently resourced to carry out the functions for which they were
established.
Further limitations, including non-binding recommendations (however, they are
generally implemented in full or at least in part). There is also limited jurisdiction, and
the OBM cannot look into matters with an open appeal right.
OBM are not always keeping pace with demand and are incredibly overworked,
promoting delays and frustration.
Further lack of respect from the executive and complainants whose requests are
denied (usually for frivolous or vexatious reasons).
Although increasing in demand, the OBM as an institution is relatively unknown to
the public.
Inquiries
- purpose of inquiries is to supply general policy information to the law makers and
investigate particular incidents.
- When the truth is more important than justice or bringing people to trial, inquiries can
be used.
- not dispute-resolution mechanisms and are to be distinguished from tribunals.
- do not deliver enforceable verdicts and are advisors in nature.
- The Inquiries Act establishes two types of Inquiries: public and government. The
virtue of inquiries is that the mode and style of investigation can be tailored to the
particular matters being investigated, demonstrating a balance between red and green
light theory.
- The advantage of inquiries is that specialist matters are complex. it is logical to
adjudicate these with specialised experts instead of generalist judges in the court
system.
- the procedures of a tribunal can be tailored to the subject matter, and the cost of
proceedings is lower than court costs.
- litigation is much faster than that of courts, and accessibility is more significant
because a lawyer is unnecessary.
- range of remedies open to tribunals can be much more comprehensive.
- Limitations include specialist justice and the ability to tailor, which may mean
inconsistent decisions, and specialist judges may be biased where they are from the
same communities they are adjudicating.
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There have been various reform proposals, but none have been successful. However,
the ultimate disadvantage is that inquiries (and tribunals) are subject to judicial
review.
Judicial Review of Administrative Justice
s25 of the OBM Act holds that it is not to be subject to review except for lack of jurisdiction.
However, this does not apply to OlA investigations (s29(2)).
- Wyatt v Queenstown Lakes shows the Courts' reluctance to participate in OBM
decisions.
- Courts Will only intervene when the Chief OBM is "Dainlv and demonstrably wrong,
not Because he preferred one side'
- "The OBM engages with complex, even agonising issues and balancing exercises
dealing with competing interests, not necessarily available for JR."
- In ESCL v Chief OBM, the courts getting involved risked breaking the bubble'. This
highlights a reluctance to subject the OBM's procedures to judicial review.
Inquiries
- Commissions of inquiry are subject to JR. Commissions have the discretion to set
their procedures, but courts will review the exercise of this discretion as they would
any other public body.
- Natural justice is used in the review or inquiries.
- Richardson set out the scale or intervention. Balance must be found between the
purpose of the investigation and the individual's rights.
- in Air NZ V Manon. in which a statutory inquiry was undertaken regarding the Air
NZ Erebus crash. Damning findings from Mahon J were appealed, with the Courts
finding that Mahon had gone beyond the jurisdiction and had insufficient evidence.
- This promulgated the need for the balancing act between natural justice and the aim of
the inquiry, leaving the role of NAM inquiries in our system unclear. JR Arguments.
- It is strongly argued that if courts review these mechanisms, it can undermine
confidence in them and Parliament's intention.
- SUBJECT There is a significant clash of cultures, as these mechanisms were set up
for the very reason of distance from the court but are now being dragged back to the
problematic system.
- Further, the expertise and efficiency of these systems are lacking in the courts, and
there is the overwhelming potential of overburdening the judicial system. However, it
must be recognised that if decisions are going seriously wrong, checks and balances
must exist. Courts must fulfil this constitutional duty where necessary in order to
safeguard individual rights, ensure procedural fairness, and establish legal precedent.
CONCLUSION
Non-judicial elements of admin justice are increasingly dominating the system, growing in
prominence and popularity. This provides citizens with faster, less costly and more accessible
options for holding the executive account. Perhaps, as Harlow and Rawlings have argued, in
reference to the British model, the NZ system is destined to remain forever stuck in amber.
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