DISCRETION -Error in fact – fact finding is normally a matter of the merits and not for -Presumptive – financial interest in the outcome – intervention
“Decisions where the law does not dictate a specific outcome, or whether the courts to review especially where reasonably possible to hold differing when there is risk of influence
the DM is given a choice of options within a statutorily imposed set of views of facts (NZ Fishing – fishing resource rents, and Moxon) – serious CONCLUDE UPON THE BALANCE OF PROBABILITIES
boundaries” (Cartier) and incontrovertible errors may be reviewable (e.g., hard-edged, no fluffy
-Purpose (Cartier): to decide individual justice to certain cases while edges Oggi – billboard construction date clear mistake). Primary DMs = 5. Unreasonableness – rationality and reasonableness. Choosing
creating and adopting norms for expertise, efficiency, and flexibility in experts!! whether the Wolf or Wednesbury approach should be used. This
law-making. -Improper purpose – discretionary power is granted for a purpose so depends on the context, e.g., the nature of the decision, who made
-Overall, discretion is “the margin of manoeuvre that is involved in should be used for a purpose – it is improper when it runs thwart and the decision, the decision-making process, subject matter, policy
making choices that suggests that there is a space or distance between the counter to the statutory purpose (Unison Networks) content (PS!!) – HUMAN RIGHTS VIOLATIONS = WOLF!!
expression of the will of Parliament on the one hand, and the acts of the -Relevancy – DMs must take into consideration all relevant elements
executive on the other, so that running the government exceeds ‘mere when making decisions, weighted at their discretion (NZ Fishing Industry -Wednesbury (15-year-olds Sunday movie sessions) – more stringent –
executive.’ and M v Syms – gross misconduct, high school students with beer, factual Courts may intervene if the decision is one which no reasonable authority
-Needed for unprecedented and unheard-of situations. Parliament may not matters relevant) could have decided to impose – so unreasonable that no reasonable
have the necessary expertise or knowledge needed to make these -Failure to exercise discretion – delegated discretion must be used and authority would have come to it – e.g., firing teacher bc red hair.
decisions. the blind application of policy is not the exercise of discretion as that can -Woolworths – NZ case – adopts Wednesbury – pattern of perversity,
exclude the merits of the decision (M v Syms – rigid application of alcohol absurd, outrageous in the defiance of logic – high threshold.
Discretion – good or bad? policy – must be personal and no rubber stamps). Self-fettering – rigid -CCSU – “a decision so outrageous in its defiance of logic or of accepted
-Robson – collective socialist state – social welfare and collective well- application of predetermined policy. moral standards that no sensible person who had applied their mind to the
being – no rigidities of processes, methods, mindsets of law – needs CONCLUDE UPON THE BALANCE OF PROBABILITIES question to be decided could have arrived to it.”
emotion, flexibility and tailoring. -Wolf (tribunal chose to stop deportation due to humanitarian grounds)
-Jennings – specialist division in the High Court to circumvent prejudices 4. Procedural impropriety – failure to observe the basic rules of (family break up) – did not occur bc of lack of robustness in factual
that ordinary courts had traditionally expressed against the government of natural justice or failure to act with procedural fairness towards a evaluation and close scrutiny) – simple unreasonableness – greater
the welfare state. person who will be affected by the decision (CCSU) = if the system scrutiny and high intensity of review – HUMAN RIGHTS!! But there is
-Dicey -minimal libertarian state – rule of law – discretion should only be was arbitrary, no one would believe it reluctancy to intervene when DM is democratically elected, process was
available in exceptional cases (war, trouble, or invasion) – parliamentary transparent, or it is a matter for Parliament to consider.
sovereignty – does not like wide discretionary and arbitrary power – -Natural justice – all individuals have the obligation to be heard and CONCLUDE UPON THE BALANCE OF PROBABILITIES
judicial adjudication. contest matters before the DM. Fair hearing rights depend on the
-FA Von Hayek – discretion prevented citizens “from knowing how the circumstances and context of the case (CREEDNZ – Cabinet decision- 6. Other substantive grounds (developments in NZ)
state will use its coercive powers and was contrary to the rule of law.” making is incompatible with giving oral hearing rights and Daganayasi – -Substantive legitimate expectation – promises, contract to exercise
oral hearing rights in the statute) discretion in a way
What is judicial review? -Nature of the decision – how was the decision made, who -Inconsistent treatment
“A review by a judge of the High Court of… public decision-making made the decision, etc. Administrative efficiency should be -Disproportionality – Bill of Rights – disproportionate penalties – were
powers in order to determine whether [it] is unauthorised or invalid.” considered (Daganayasi). What were the prior practices and there justifiable limits imposed by rights under the BORA – reluctant to
(Crown Law) assurances? (CCSU) look at the merits
-Not concerned with merits of the decision -Statutory context – must consider what is inferred or -Substantive fairness
-Tensions arise particularly when disputes involve important political, presumed in interpreting the Act whereby you look at the
Treaty, or human rights issues statute as a whole and look what you can draw from it CONCLUDE OVERALL
-Safeguarding the rights and interests of citizens while getting the law (Daganayasi) – statutory purpose must not be undermined or On the balance of probabilities whether the decision will be judicially
right in the first place frustrated (CREEDNZ). reviewable. Because of this sub-ground/ground it is likely/unlikely to
-Judicial review must only be sporadic and peripheral -Identifiable interest – based on the circumstances and the succeed. Either remake the decision, declare that it is invalid (quash) or
defendant must know the case before them (Daganayasi). injunction
STRUCTURE OF JUDICIAL REVIEW -Bias – whether a fair-minded (reasonably informed) lay observer would
1. Issue statement – must include all the individuals involve – what is reasonably apprehend that the decision-maker might not bring an OMBUDSMAN
being challenged – what is the decision. impartial mind to the resolution of the question (Saxmere – judge was in “An Office provided for by the Constitution or by an action of the
debt to counsel so had a conflict of interest – modest and close interests legislature or Parliament and headed by an independent, high-level public
2. Is the decision amenable to judicial review? – e.g., actions of the are acceptable). official, who is responsible to the legislature or Parliament, who received
executive, powers deriving from statute, regulations and subsidiary -Dividing line between permissible and impermissible shifts complaints from aggrieved persons against Government agencies,
legislation, public powers that do not have a statutory basis, and with context – bias rule is flexible – legal and factual officials, employees, or who acts on [his] own motion and who has the
prerogative powers (CCSU) circumstances (Saxmere) power to investigate, recommend corrective action, and issue reports.”
-Justice should be done and seen to be done / independence (Judge Anand Satyanand)
3. Illegality and impartiality / confidence (Saxmere)
-Error of law – the DM must get the law right, otherwise they are -Joseph – financial interests and financial relationships / Who? – appointed by the Governor-General (s 3(2)), governed by the
acting outside of the scope of their legal powers and ultra vires familial and past relationships / personal prejudice Ombudsman Act 1975, similar protection and tenure as judges (s 6), filled
(Peters v Davidson – tax evasion law applied wrong) – Carter Holt -Actual bias – improper external factors are considered – by judges and senior civil servants
Harvey v North Shore City Council – you cannot construe a matter of proof
definition too wide otherwise law is wrong (paper is not waste) -Apparent bias – risk of influence – settings and conditions Jurisdiction (s 13(1)) – any decision or recommendation made, or any
suggest a risk regardless of actual risk act done or omitted – related to the administration – any person or bodies
, affected personally – any department or organisation listed in parts 1 and -How? The official information requested shall be specified with due
2 of sch. 1, or any committee or subcommittee of any organisation named particularity in the request Weaknesses – time constraints (sit at the same time as debating of Bills),
in part 3 of sch. 1. – any officer, employee, or member of any such paperwork, reading and thinking of what is important (prioritising),
department or organisation in his capacity such as officer, employee, or Section 15 – decision made by who and when? competing demands, power can only be recommendatory in the
member. -no later than 20 working days after the request has been received conclusion (cannot strike down or amend regulations and policy)
-as soon as practical
Exclusions (s 13(7)) – Trustee Act 1956 – any decision, recommendation, -time limit can be extended (s 15(1)) – having regard to the circumstances
act, or omission of any trustee – legal advisors to the Crown – any member in a reasonable time INTERNATIONAL LAW
of the police, other than any matter relating to terms and conditions of -small cost for labour and materials to get info Dualism – domestic and international law are distinct systems; each is
service – s 13(8) and s 14 (certain claims) -department can ask a minister for advice (s 15(5)) supreme in its own sphere and legal system. Only when international law
has been adopted by Parliament can it have constitutional significance and
Restrictions/rules – the House may make rules for the Ombudsman (s Section 16 – how can the request be filled? be enforceable in the courts.
15) under the OIA, the LIOMA, and the Protected Disclosures Act, -inspection in a reasonable time given -Courts assume that Parliament would not adopt legislation that conflicts
printed and published with the Acts and Regulations Publication Act 1989 -provided in a document as a copy with international obligations.
(e.g., there is public interest in the departments/organisations) – s 16(1) -written, visual, heard, or seen
the complaint must be made in writing or orally as soon as practicable – s -written transcript if codified Monism – domestic and international law are connected/integrated.
22(3)(g) only can make recommendations. -excerpt or summary if necessary International law is supreme to domestic law. it is the foundation for
-oral if required which each domestic legal system emerges, therefore, it applies to the
Decisions – can only be s 22(1) contrary to law, unreasonable, unjust, -administrative efficacy (s 16(2)) or the legal duty of the department, domestic legal system as like any other domestic law.
oppressive, or improperly discriminatory, mistake of fact / mistake of law, minister of the crown or organisation, or prejudice must not be applicable
or was just plainly wrong. Section 22(2) improper purpose or irrelevant here for the request to be filled Treaties in executive decision-making
grounds of consideration. -Has the treaty or international convention been signed and ratified by the
Section 17 – deletion of info from docs – there must be good reason to executive?
Powers, remedies, outcomes – s 22(3) – referred to the appropriate withhold some info contained in the doc if such alterations are necessary. -If it is incorporated, then the executive is obliged to apply law
authority, omission could be rectified, decision should be cancelled or implementing the treaty.
varied, law = altered, practice = altered, reasons that the decision was Section 18 – refusal of request – good reason, the ppl do not confirm or -If the judiciary fails to implement the treaty under the
made should be stated, any other relevant steps deny the existence or non-existence of the info request (provisions in illegality ground (review to judicial review)
Section 22(3)(g) – Ombudsman must report his opinion enactment, constitute contempt of court or the House) – the info will be -CCSU – the decision-maker must understand the law
Section 23 – might require publication (OIA) made publicly available soon – the request is made by the defendant, the correctly that regulates his decision-making power and must
Section 24 – the complainant will be informed of the result of the info does not exist, no grounds for believing that the info is held by give effect to it.
investigation another person, connected more closely with the functions of the ppl. -Falls under material error of law, a decision-maker must get
Section 25 – proceedings are not to be questioned or subject to review (no the law correct otherwise they are acting outside their scope of
court can challenge, review, quash, or call into question the Ombudsman’s Section 28 – OMBUDSMAN provisions - allows the Ombudsman the authority and ultra vires (Peters v Davidson)
decision or proceeding) opportunity to investigate and review any decision to release official info
Section 26 – proceedings are privileged subject to ss 12, 15, 16, or 17 of the Act. Ombudsman will make a -If it is not incorporated…
Section 27 – the Ombudsman has the power to enter upon any premises recommendation, person will be heard, public duty to observe the -International treaty obligations are legally irrelevant if
occupied by the departments or organisations as per sch. 1 of the Act recommendation, apply to the HC for review by the Order of Council and unincorporated into domestic law (as per dualism) Attorney-
then appeal to the CA (ss 30-32) General for Canada / Brind.
PROS – free, not coercive, gets to a conclusion that both sides accept and -However, unincorporated treaties can be mandatory relevant
the complainant’s mana is intact, can look at the merits, powers are broad considerations (Tavita / Ashby)
in scope (s 22(3)), usually concluded within 12 months coming in, getting REGULATIONS REVIEW COMMITTEE -Tavita is obiter (the convention just needs to be
a result that allows someone to move forward. -Chris Penk relevant). Tavita was a case on humanitarian
-Chaired by an opposition member of Parliament grounds.
CONS – only makes recommendations (judicial review is binding), -Scrutinises the executive -Ashby it must be manifestly and apparently
depends on whether the Ombudsman is motivated, cannot provide a quick -Part of Parliament to keep check on the executive relevant – higher standard. The weight is for the
solution for complex issues, sometimes cannot provide the remedy that -Jurisdiction comes Standing Orders and is also limited by these grounds DM.
certain people want, there is no control over the investigation. -As per the presumption of consistency, statutory powers, as
What triggers a matter of concern? far as possible on their wording, must be interpreted
-Look at regulations that are made > ensuring that they are made in consistently with international law obligations (Puli’uvea /
THE OFFICIAL INFORMATION ACT 1982 accordance with primary legislation and the policy intent Zaoui). A broadly worded statute is easier to read in
Section 2 – department means a government department named in pt 1 of -Looking at whether the new Bill will set up an appropriate set of consistency and vice-versa.
sch 1 of the Ombudsmen Act 1975. regulations from the Minister or agency -Was the weight reasonable? (Refer to judicial review cheat
-Looking at orders being able to scrutinise it as a routine matter sheet) – Wolf standard – implications of treaty obligations may
Section 12 trigger harder look or heightened scrutiny (can also look at
-Who? NZ citizens, permanent resident, in NZ, body corporate inside NZ Strengths – technical, rather than political – has good conversations on Wednesbury)
and one that has a place of business in NZ – For what? May request a how the law should reflect the intent of government rather than members
department, organisation, Minister of the Crown, or interdepartmental trying to be government (e.g., in select committees and debates) –
venture to make available info members can be lawyers (expertise!!) – constructive role
“Decisions where the law does not dictate a specific outcome, or whether the courts to review especially where reasonably possible to hold differing when there is risk of influence
the DM is given a choice of options within a statutorily imposed set of views of facts (NZ Fishing – fishing resource rents, and Moxon) – serious CONCLUDE UPON THE BALANCE OF PROBABILITIES
boundaries” (Cartier) and incontrovertible errors may be reviewable (e.g., hard-edged, no fluffy
-Purpose (Cartier): to decide individual justice to certain cases while edges Oggi – billboard construction date clear mistake). Primary DMs = 5. Unreasonableness – rationality and reasonableness. Choosing
creating and adopting norms for expertise, efficiency, and flexibility in experts!! whether the Wolf or Wednesbury approach should be used. This
law-making. -Improper purpose – discretionary power is granted for a purpose so depends on the context, e.g., the nature of the decision, who made
-Overall, discretion is “the margin of manoeuvre that is involved in should be used for a purpose – it is improper when it runs thwart and the decision, the decision-making process, subject matter, policy
making choices that suggests that there is a space or distance between the counter to the statutory purpose (Unison Networks) content (PS!!) – HUMAN RIGHTS VIOLATIONS = WOLF!!
expression of the will of Parliament on the one hand, and the acts of the -Relevancy – DMs must take into consideration all relevant elements
executive on the other, so that running the government exceeds ‘mere when making decisions, weighted at their discretion (NZ Fishing Industry -Wednesbury (15-year-olds Sunday movie sessions) – more stringent –
executive.’ and M v Syms – gross misconduct, high school students with beer, factual Courts may intervene if the decision is one which no reasonable authority
-Needed for unprecedented and unheard-of situations. Parliament may not matters relevant) could have decided to impose – so unreasonable that no reasonable
have the necessary expertise or knowledge needed to make these -Failure to exercise discretion – delegated discretion must be used and authority would have come to it – e.g., firing teacher bc red hair.
decisions. the blind application of policy is not the exercise of discretion as that can -Woolworths – NZ case – adopts Wednesbury – pattern of perversity,
exclude the merits of the decision (M v Syms – rigid application of alcohol absurd, outrageous in the defiance of logic – high threshold.
Discretion – good or bad? policy – must be personal and no rubber stamps). Self-fettering – rigid -CCSU – “a decision so outrageous in its defiance of logic or of accepted
-Robson – collective socialist state – social welfare and collective well- application of predetermined policy. moral standards that no sensible person who had applied their mind to the
being – no rigidities of processes, methods, mindsets of law – needs CONCLUDE UPON THE BALANCE OF PROBABILITIES question to be decided could have arrived to it.”
emotion, flexibility and tailoring. -Wolf (tribunal chose to stop deportation due to humanitarian grounds)
-Jennings – specialist division in the High Court to circumvent prejudices 4. Procedural impropriety – failure to observe the basic rules of (family break up) – did not occur bc of lack of robustness in factual
that ordinary courts had traditionally expressed against the government of natural justice or failure to act with procedural fairness towards a evaluation and close scrutiny) – simple unreasonableness – greater
the welfare state. person who will be affected by the decision (CCSU) = if the system scrutiny and high intensity of review – HUMAN RIGHTS!! But there is
-Dicey -minimal libertarian state – rule of law – discretion should only be was arbitrary, no one would believe it reluctancy to intervene when DM is democratically elected, process was
available in exceptional cases (war, trouble, or invasion) – parliamentary transparent, or it is a matter for Parliament to consider.
sovereignty – does not like wide discretionary and arbitrary power – -Natural justice – all individuals have the obligation to be heard and CONCLUDE UPON THE BALANCE OF PROBABILITIES
judicial adjudication. contest matters before the DM. Fair hearing rights depend on the
-FA Von Hayek – discretion prevented citizens “from knowing how the circumstances and context of the case (CREEDNZ – Cabinet decision- 6. Other substantive grounds (developments in NZ)
state will use its coercive powers and was contrary to the rule of law.” making is incompatible with giving oral hearing rights and Daganayasi – -Substantive legitimate expectation – promises, contract to exercise
oral hearing rights in the statute) discretion in a way
What is judicial review? -Nature of the decision – how was the decision made, who -Inconsistent treatment
“A review by a judge of the High Court of… public decision-making made the decision, etc. Administrative efficiency should be -Disproportionality – Bill of Rights – disproportionate penalties – were
powers in order to determine whether [it] is unauthorised or invalid.” considered (Daganayasi). What were the prior practices and there justifiable limits imposed by rights under the BORA – reluctant to
(Crown Law) assurances? (CCSU) look at the merits
-Not concerned with merits of the decision -Statutory context – must consider what is inferred or -Substantive fairness
-Tensions arise particularly when disputes involve important political, presumed in interpreting the Act whereby you look at the
Treaty, or human rights issues statute as a whole and look what you can draw from it CONCLUDE OVERALL
-Safeguarding the rights and interests of citizens while getting the law (Daganayasi) – statutory purpose must not be undermined or On the balance of probabilities whether the decision will be judicially
right in the first place frustrated (CREEDNZ). reviewable. Because of this sub-ground/ground it is likely/unlikely to
-Judicial review must only be sporadic and peripheral -Identifiable interest – based on the circumstances and the succeed. Either remake the decision, declare that it is invalid (quash) or
defendant must know the case before them (Daganayasi). injunction
STRUCTURE OF JUDICIAL REVIEW -Bias – whether a fair-minded (reasonably informed) lay observer would
1. Issue statement – must include all the individuals involve – what is reasonably apprehend that the decision-maker might not bring an OMBUDSMAN
being challenged – what is the decision. impartial mind to the resolution of the question (Saxmere – judge was in “An Office provided for by the Constitution or by an action of the
debt to counsel so had a conflict of interest – modest and close interests legislature or Parliament and headed by an independent, high-level public
2. Is the decision amenable to judicial review? – e.g., actions of the are acceptable). official, who is responsible to the legislature or Parliament, who received
executive, powers deriving from statute, regulations and subsidiary -Dividing line between permissible and impermissible shifts complaints from aggrieved persons against Government agencies,
legislation, public powers that do not have a statutory basis, and with context – bias rule is flexible – legal and factual officials, employees, or who acts on [his] own motion and who has the
prerogative powers (CCSU) circumstances (Saxmere) power to investigate, recommend corrective action, and issue reports.”
-Justice should be done and seen to be done / independence (Judge Anand Satyanand)
3. Illegality and impartiality / confidence (Saxmere)
-Error of law – the DM must get the law right, otherwise they are -Joseph – financial interests and financial relationships / Who? – appointed by the Governor-General (s 3(2)), governed by the
acting outside of the scope of their legal powers and ultra vires familial and past relationships / personal prejudice Ombudsman Act 1975, similar protection and tenure as judges (s 6), filled
(Peters v Davidson – tax evasion law applied wrong) – Carter Holt -Actual bias – improper external factors are considered – by judges and senior civil servants
Harvey v North Shore City Council – you cannot construe a matter of proof
definition too wide otherwise law is wrong (paper is not waste) -Apparent bias – risk of influence – settings and conditions Jurisdiction (s 13(1)) – any decision or recommendation made, or any
suggest a risk regardless of actual risk act done or omitted – related to the administration – any person or bodies
, affected personally – any department or organisation listed in parts 1 and -How? The official information requested shall be specified with due
2 of sch. 1, or any committee or subcommittee of any organisation named particularity in the request Weaknesses – time constraints (sit at the same time as debating of Bills),
in part 3 of sch. 1. – any officer, employee, or member of any such paperwork, reading and thinking of what is important (prioritising),
department or organisation in his capacity such as officer, employee, or Section 15 – decision made by who and when? competing demands, power can only be recommendatory in the
member. -no later than 20 working days after the request has been received conclusion (cannot strike down or amend regulations and policy)
-as soon as practical
Exclusions (s 13(7)) – Trustee Act 1956 – any decision, recommendation, -time limit can be extended (s 15(1)) – having regard to the circumstances
act, or omission of any trustee – legal advisors to the Crown – any member in a reasonable time INTERNATIONAL LAW
of the police, other than any matter relating to terms and conditions of -small cost for labour and materials to get info Dualism – domestic and international law are distinct systems; each is
service – s 13(8) and s 14 (certain claims) -department can ask a minister for advice (s 15(5)) supreme in its own sphere and legal system. Only when international law
has been adopted by Parliament can it have constitutional significance and
Restrictions/rules – the House may make rules for the Ombudsman (s Section 16 – how can the request be filled? be enforceable in the courts.
15) under the OIA, the LIOMA, and the Protected Disclosures Act, -inspection in a reasonable time given -Courts assume that Parliament would not adopt legislation that conflicts
printed and published with the Acts and Regulations Publication Act 1989 -provided in a document as a copy with international obligations.
(e.g., there is public interest in the departments/organisations) – s 16(1) -written, visual, heard, or seen
the complaint must be made in writing or orally as soon as practicable – s -written transcript if codified Monism – domestic and international law are connected/integrated.
22(3)(g) only can make recommendations. -excerpt or summary if necessary International law is supreme to domestic law. it is the foundation for
-oral if required which each domestic legal system emerges, therefore, it applies to the
Decisions – can only be s 22(1) contrary to law, unreasonable, unjust, -administrative efficacy (s 16(2)) or the legal duty of the department, domestic legal system as like any other domestic law.
oppressive, or improperly discriminatory, mistake of fact / mistake of law, minister of the crown or organisation, or prejudice must not be applicable
or was just plainly wrong. Section 22(2) improper purpose or irrelevant here for the request to be filled Treaties in executive decision-making
grounds of consideration. -Has the treaty or international convention been signed and ratified by the
Section 17 – deletion of info from docs – there must be good reason to executive?
Powers, remedies, outcomes – s 22(3) – referred to the appropriate withhold some info contained in the doc if such alterations are necessary. -If it is incorporated, then the executive is obliged to apply law
authority, omission could be rectified, decision should be cancelled or implementing the treaty.
varied, law = altered, practice = altered, reasons that the decision was Section 18 – refusal of request – good reason, the ppl do not confirm or -If the judiciary fails to implement the treaty under the
made should be stated, any other relevant steps deny the existence or non-existence of the info request (provisions in illegality ground (review to judicial review)
Section 22(3)(g) – Ombudsman must report his opinion enactment, constitute contempt of court or the House) – the info will be -CCSU – the decision-maker must understand the law
Section 23 – might require publication (OIA) made publicly available soon – the request is made by the defendant, the correctly that regulates his decision-making power and must
Section 24 – the complainant will be informed of the result of the info does not exist, no grounds for believing that the info is held by give effect to it.
investigation another person, connected more closely with the functions of the ppl. -Falls under material error of law, a decision-maker must get
Section 25 – proceedings are not to be questioned or subject to review (no the law correct otherwise they are acting outside their scope of
court can challenge, review, quash, or call into question the Ombudsman’s Section 28 – OMBUDSMAN provisions - allows the Ombudsman the authority and ultra vires (Peters v Davidson)
decision or proceeding) opportunity to investigate and review any decision to release official info
Section 26 – proceedings are privileged subject to ss 12, 15, 16, or 17 of the Act. Ombudsman will make a -If it is not incorporated…
Section 27 – the Ombudsman has the power to enter upon any premises recommendation, person will be heard, public duty to observe the -International treaty obligations are legally irrelevant if
occupied by the departments or organisations as per sch. 1 of the Act recommendation, apply to the HC for review by the Order of Council and unincorporated into domestic law (as per dualism) Attorney-
then appeal to the CA (ss 30-32) General for Canada / Brind.
PROS – free, not coercive, gets to a conclusion that both sides accept and -However, unincorporated treaties can be mandatory relevant
the complainant’s mana is intact, can look at the merits, powers are broad considerations (Tavita / Ashby)
in scope (s 22(3)), usually concluded within 12 months coming in, getting REGULATIONS REVIEW COMMITTEE -Tavita is obiter (the convention just needs to be
a result that allows someone to move forward. -Chris Penk relevant). Tavita was a case on humanitarian
-Chaired by an opposition member of Parliament grounds.
CONS – only makes recommendations (judicial review is binding), -Scrutinises the executive -Ashby it must be manifestly and apparently
depends on whether the Ombudsman is motivated, cannot provide a quick -Part of Parliament to keep check on the executive relevant – higher standard. The weight is for the
solution for complex issues, sometimes cannot provide the remedy that -Jurisdiction comes Standing Orders and is also limited by these grounds DM.
certain people want, there is no control over the investigation. -As per the presumption of consistency, statutory powers, as
What triggers a matter of concern? far as possible on their wording, must be interpreted
-Look at regulations that are made > ensuring that they are made in consistently with international law obligations (Puli’uvea /
THE OFFICIAL INFORMATION ACT 1982 accordance with primary legislation and the policy intent Zaoui). A broadly worded statute is easier to read in
Section 2 – department means a government department named in pt 1 of -Looking at whether the new Bill will set up an appropriate set of consistency and vice-versa.
sch 1 of the Ombudsmen Act 1975. regulations from the Minister or agency -Was the weight reasonable? (Refer to judicial review cheat
-Looking at orders being able to scrutinise it as a routine matter sheet) – Wolf standard – implications of treaty obligations may
Section 12 trigger harder look or heightened scrutiny (can also look at
-Who? NZ citizens, permanent resident, in NZ, body corporate inside NZ Strengths – technical, rather than political – has good conversations on Wednesbury)
and one that has a place of business in NZ – For what? May request a how the law should reflect the intent of government rather than members
department, organisation, Minister of the Crown, or interdepartmental trying to be government (e.g., in select committees and debates) –
venture to make available info members can be lawyers (expertise!!) – constructive role
