#8410 - Extra Judicial Constraints On State Power - LAWS204 Public Law

Extra-judicial constraints on state power The media The media are the key vehicle for public opinion to affect government, and for government's message to be delivered to the people. A force that, like law, can inhibit executive action. The media are subject to both the market and to the law. In New Zealand, there is a conflation of opinion and fact in media reporting: the stream of political discourse is polluted at the source. MMP has made government and Parliament more susceptible to media influence. Parliamentary Press gallery is restricted atm to 40 members, but has an impossibly broad range of tasks to carry out. Media controls debate (preventing free speech, but also a free-for-all) , but also enables it. It is not clear that the normal working of free markets ensures optimum outcomes for democratic deliberation. Broadcasting Act 1989 sets minimum standards of accuracy and balance for news media, especially in election coverage. Lobby groups Moves in Australia as to whether all lobbying should be regulated, but few rules in NZ. There is a register of the financial interests that MPs and Ministers have. Lobbying in NZ is practicable for many people even without the huge resources necessary in other jurisidictions. Politicians in NZ are more accessible than in other jurisdictions. Citizen Initiated Referendum Largely a waste of money and time. Not binding on the government, government referenda may be legally binding. Require a petition of 10% of electorate before CIR 1993 kicks in. Blunt and crude devices (yes/no response) May adversely affect minorities. No scope as to subject matter of CIRs - could be even about non-legislative matters. No record of a CIR ever affecting government policy (e.g. Anti-smacking amendment CIR) Local Government NZ has a strong unitary governmental structure - Local Government is not constitutionally entrenched, and only has as much power as Parliament allows. i.e. No inherent law making powers, can't contradict statute (including BORA), cannot act ultra vires, or be 'unreasonable'. Local Government Act 2002 = central. Two purposes of local government: 1. To enable democratic local decision making and action by and on behalf of the community 2. To promote the social, economic, environmental, and cultural well-being of communities, in present and future. 2002 Act gives LG's "general competence", like the royal prerogative - the power to do anything not proscribed by law. In 1989, large remodelling of NZ's local governance: pruning of number of councils. Activities: 1. Makes by-laws, regulations 2. Grants consents under the RMA 3. Administers standards for buildings 4. Manages communal amenities 5. Levies rates Public law checks: Ombudsmen, Local Government Official Information and Meetings Act 1987, meetings must be open to public, open to civil liability for wrongs, select committees may investigate, bound by Treaty principles, Auditor-General is a watchdog. Ombudsmen The Ombudsmen Act 1975 Ombudsmen can investigate any matter of administrative action within a department, organisation, or local government, including Ministerial advice But not including the Ministerial decisions themselves. An Ombudsman's recommendation of remedial action is not binding, but if unsatisfied, the Ombudsman will report to the PM, then to Parliament. Fill a gap left by the judiciary (expensive) and Parliament (not enough time) Opposite of the courts: flexible, informal, inquisitorial, cheap. Requirements of the Ombudsmen office 1) Independence i. Must be established by legislation/incorporation so it is independent of the bodies that it is investigating. 1) Responsible only to legislature ii. Appointed for a fixed term except if misbehaviour iii. Independent funding 2) Jurisdiction i. Should be clearly defined in legislation/founding document, extend to administrative actions of most organisations, determined by O ii. s 13(1) Ombudsmen Act 1975 1) To investigate any decision or recommendation made, or any act done or omitted... Relating to a matter of administration and affecting any person or body of persons in his or its personal capacity. iii. Includes: 1) Central government departments/organisations 2) Crown entities 3) Local government 4) Hospital and education boards 5) Tertiary institutions No policy/administration distinction - instead concerned with who makes the decision and on what grounds. SCC: only Legislature and Courts are exempt from the O's scrutiny. 3) Powers of the Ombudsman Public Page 22