The ombudsman
Over time the growth of state activity caused a considerable increase in the number of public servants, and their decisions and those of ministers of the Crown can impact seriously upon the rights and freedoms of people. In 1962 the Office of the Ombudsman was introduced to provide a person to whom grievances could be referred. The ombudsmen form opinions about the complaints made about central, regional and local government after carrying out investigations. An ombudsman may reach a conclusion that a decision has been unfair, contrary to law, unreasonable, unjust, oppressive or just plain wrong. While recommendations by the ombudsmen are not legally binding, they carry a lot of weight and are usually acted upon.
Official information
The ombudsmen also review, upon receiving a complaint, decisions to decline the release of information under the Official Information Act 1982. This statute plays an important constitutional role in keeping government transparent and open.
Reviewing regulations
Historically in New Zealand too much policy has been contained in regulations rather than statutes (acts). Regulations are authorised by acts of Parliament but they are made by the governor-general in council on the recommendation of cabinet. For example, the Economic Stabilisation Act 1948 allowed regulations to be made to control all wages, prices and other aspects of the economy. In response to this problem the Regulations (Disallowance) Act 1989 was passed, and complaints about delegated legislation can be made to the Regulations Review Committee of Parliament.
Other review authorities
In recent years there has been a proliferation of agencies to which the public can complain for review of various decisions or actions. Some of these are the Independent Police Complaints Authority, the Human Rights Commission, the race relations commissioner, the privacy commissioner, the parliamentary commissioner for the environment, the health and disability commissioner and the children’s commissioner.
Judicial review
Since the 1960s the courts have developed the techniques of administrative law to review the legality of government action. The Judicature Amendment Act 1972 said that ‘the exercise, refusal to exercise, or proposed or purported exercise by any person of any statutory power’ could be judicially reviewed by the High Court. Judicial review is a keystone of New Zealand public law and a significant contribution to the rule of law. Furthermore, the New Zealand Bill of Rights Act 1990 provides that ‘Every person whose rights, obligations or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.’ The grounds for judicial review are essentially those developed by the judges in cases that come before them, and it is a branch of common law assisted by statute.
At its base administrative law is about fairness. Breaches of natural justice or of legitimate expectations, illegality or irrationality, or lack of consultation when there should have been consultation, can make decisions invalid. In New Zealand the government is subject to the law and not above it.
