ANNEX 3

Tāpiritanga 3: Ētahi atu momo whakahaere tūmatanui

Annex 3: Other forms of public supervision

1.New Zealand has a range of ‘public watchdog’ bodies with legal powers to supervise the executive government.  These bodies work within narrower subject areas than the Courts but tend to have lower thresholds for finding wrongdoing and broader powers (for example, the power to initiate investigations into particular issues). Generally, the courts will refuse judicial review where an appeal right is available, but an ability to complain or seek an investigation from one of these other bodies is not an appeal – and does not prevent the courts also exercising their review functions.

Parliament

2.Parliament oversees and regulates government action in a number of ways. The legislative process enables Parliament to scrutinise government policy and practice through debate during readings of a Bill. Parliamentarians also oversee the executive government with questions to Ministers and the use of select committees, which are made up of groups of MPs.
3.Select committees receive Bills and other proposals within their jurisdiction for review and can question representatives of government on the content and process of the proposed legislation. The committees can apply to the Speaker of the House to summons any person, to direct a person to give evidence under oath and to require the provision of any documents.1Standing Orders of the House of Representatives 2011, SO 194.
4.Select committees also seek public submissions on proposed legislation, which frequently results in changes to the proposals. At the end of the review process the committee makes recommendations to the House of Representatives, which often includes amendments to Bills.
5.Parliament controls public finances and therefore also holds the executive government accountable by requiring parliamentary authorisation for any public spending.  The Public Finance Act 1989 imposes financial reporting obligations on government and Crown entities, and there is a public audit system operated under the Public Audit Act 2001.

The Ombudsman

6.The Office of the Ombudsman has several areas of responsibility.  Perhaps the most well-known is with respect to official information.  However, the Ombudsman also has a very important role monitoring good administration.  As part of this function, the Ombudsman has powers to investigate individual complaints and to investigate broader system issues within government.
7.The Ombudsman can receive complaints about the conduct or decisions of state agencies (including recommendations made to Ministers).  When investigating the complaint,the Ombudsman looks at whether the agency acted fairly and reasonably.  An agency that has squarely adhered to the legal standards of judicial review should be safe from an adverse finding.  However, the Ombudsman is likely to more carefully scrutinise the reasonableness of a decision than the High Court on judicial review.
8.The Ombudsman is also a “National Preventive Mechanism” under the Crimes of Torture Act 1989, and monitors the treatment of persons held in places of detention (including prisons, youth justice residences and care and protection residences) in accordance with that role.
9.The Ombudsman also provides advice and guidance to state agencies before decisions are made or policies developed.

The Auditor General

10.The Auditor-General oversees the use of public resources from a financial and organisational perspective.  The Auditor-General is responsible for auditing public entities to ensure they fairly reflect the results of their activities in their annual reports.  The Auditor-General also evaluates the performance and effectiveness of public entities.  This assesses whether a public entity is carrying out its activities effectively and efficiently, complying with statutory obligations, using public resources appropriately, is operating with probity (integrity) and being financially prudent.
11.The role of the Auditor-General is considerably broader than that of the High Court on judicial review.  However, adhering to the legal standards of judicial review should protect agencies from adverse reports of the Auditor-General with respect to statutory compliance and acting with probity.
12.The Auditor-General does not have a complaints function like the Ombudsman. However, people can report concerns about public agencies’ use of resources to the Office of the Auditor-General. If the matter is considered serious enough, the Auditor-General can conduct an inquiry.

Royal Commissions, Public Inquiries and Government Inquiries

13.An inquiry often involves establishing the cause of something and recommending action to prevent similar occurrences in future.
14.A Public Inquiry is an investigation to look into any matter of public importance.  The Inquiries Act 2013 enables the Governor-General by Order in Council to establish Public Inquiries and also preserves the option of setting up a Royal Commission of Inquiry, established under letters patent and reserved for the most serious matters of public importance.
15.Public Inquiries and Royal Commissions of Inquiry report to the Governor-General and the report must be presented to the House of Representatives.
16.Under the Inquiries Act, the Government may instead establish a Government Inquiry which reports to a Minister and does not have to be presented to the House.
17.For all inquiries, the evidence that is sought tends to depend on the terms of reference, which are published early in the process. The parties involved participate in the process by providing submissions and answering questions. Overall the process is potentially more flexible and less formal than court proceedings.

Waitangi Tribunal

18.Questions of interpretation of Te Tiriti o Waitangi and allegations of conflict between Te Tiriti and government policy or law are the primary concerns of the Waitangi Tribunal. The Tribunal sits in a similar manner to a court, with a bench of members appointed by the Governor-General and chaired by a current or retired Judge.2Treaty of Waitangi Act 1975, s 4. However, the Tribunal has more flexibility than the courts as it is a commission of inquiry and can determine its own procedure and timetable.3Joseph Williams, Laws of New Zealand, Treaty of Waitangi: Jurisdiction (online ed) at [48]. The conduct of the Tribunal tends to be significantly influenced by tikanga Māori.
19.The Waitangi Tribunal has jurisdiction to inquire into claims that the government’s acts or omissions have breached the principles of the Treaty of Waitangi, causing prejudice. This could include any statutory instrument, policies and procedures adopted or proposed to be adopted by or on behalf of the Crown since 6 February 1840. The Tribunal’s current work programme includes contemporary inquiries and thematic ‘Kaupapa inquiries’ which consider current Crown legislation and policies that are alleged to be in breach of Treaty principles.
20.Reports of the Tribunal can take years to produce given the breadth of information involved and the complexity of hearing multiple claims from individuals within an iwi and/or competing claims from different iwi.
21.The Tribunal has the authority to find that legislation and government action are inconsistent with the principles of the Treaty, although any Tribunal recommendations are not binding in law on Parliament or the executive.4Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 (CA) at 651-652. However courts will have regard to the findings of the Tribunal, and a failure of to consider Tribunal findings and recommendations when making a decision has been held to be an error of law in judicial review.5Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188  (HC) at 223 and 227; Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129  (CA) at 134-135 [the Radio Frequencies case].

Privacy Commissioner

22.The Office of the Privacy Commissioner is tasked with overseeing the enforcement and development of the law of privacy, which focuses on helping people access and control their personal information. The Privacy Commissioner receives and investigates privacy complaints, and also proactively helps public and private organisations to establish good information-handling practices and policies.
23.It is useful to view the Office of the Privacy Commissioner as a resource to contact early in a matter involving privacy questions, instead of viewing the Commissioner as a body that gets involved once a complaint is made.
24. Advice from the Commissioner early in a process can avoid the risk of breaching privacy rights that may lead to legal proceedings against the government.
25.If a complaint about an alleged breach of privacy is made to the Commissioner, the Commissioner will consider the complaint and may decide to investigate the complaint if it is within their jurisdiction. The Commissioner can also assist parties in reaching a settlement.
26.If an investigation is undertaken, the organisation responsible for the alleged privacy breach will be contacted for submissions.6Privacy Act 1993, s 73.

Health and Disability Commissioner

27.The Health and Disability Commissioner is an independent Crown entity that can receive complaints relating to health and disability services in New Zealand. Complainants can submit concerns to the Commissioner directly, but the Ombudsman or other public body may refer a complaint to the Commissioner if it is considered within their jurisdiction.
28.The Commissioner endeavours to resolve complaints and can initiate formal investigations.
29.The Commissioner is responsible for enforcing the Code of Health and Disability Services Consumers’ Rights, which imposes duties on health providers and sets out consumer rights. Tertiary health providers are predominantly public sector bodies, such as district health boards. Organisations such as the Department of Corrections may also provide health and disability services.  The Commissioner also reports to the Minister of Health on any legislative or policy recommendations for promoting and protecting consumer rights.

Human Rights Commission

30.The Human Rights Act 1993 (HRA) includes a mechanism through which a person can complain that a potentially discriminatory legislative instrument, practice or policy has been made, carried out or adopted by a person or body within the legislative, executive and judicial branches, or by any person or body performing public functions or powers.7Philip A Joseph Constitutional Law – A to Z of New Zealand Law (online looseleaf ed, Thomson Reuters) at 10.3(3)(a).
31.The functions of the Human Rights Commission are to receive these complaints and to attempt to settle discrimination complaints through dispute resolution, in which they act as an independent body.8Human Rights Act 1993 [HRA], s 76(1). The Commission can involve any person it considers appropriate for the purposes of gathering information and resolving disputes.9HRA, s 79(6).
32.The Commission also acts to promote human rights programmes in organisations, which can include reporting on action taken to eradicate laws and practices that are discriminatory. Additionally, the Commission can review alleged discrimination in employment matters if the complainant chooses to go to the Commission rather than through an employment dispute resolution route.10HRA, s 79A.
33.The Commission will endeavour to resolve complaints through dispute resolution, but if the parties are unable to agree on an outcome, proceedings for breach of the HRA can be taken to the Human Rights Review Tribunal (HRRT).

Human Rights Review Tribunal

34.The HRA also allows a person to lay a complaint with the HRRT that a public person or body, under any of the legislative, executive and judicial branches of government, has acted inconsistently with the right to freedom from discrimination.11HRA, Part 1A. The right to freedom from discrimination is set out at section 19(1) of the New Zealand Bill of Rights Act 1990.
35.Any person may bring a related proceeding to the HRRT  to challenge alleged discrimination as defined in the HRA.12Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers Ltd, 2014) at 295. This means that the person bringing the proceeding is not required to have any connection to the substance of the complaint, and it may be the case that the Human Rights Commission brings the proceeding.13Joseph, at 295; and HRA, s 92B(1).
36.The HRRT can receive any evidence and can make decisions that are binding on the parties.14HRA, ss 94 and 106. The HRRT has a broad discretion as to remedies, and the types of remedies the Tribunal can issue include: declaring a breach of the HRA has occurred; issuing an order restraining continued or repeated breaches; issuing an order that the defendant take action to redress harm caused by the breach; issuing damages; and/or ordering the defendant to undertake training or implement programmes to promote HRA compliance.15HRA, s 92I.
37.If legislation is found to be inconsistent with the right to freedom from discrimination, which is affirmed by section 19 of the New Zealand Bill of Rights Act 1990, the HRRT can issue a declaration to that effect.16HRA, s 92J. The Minister responsible for administering that enactment must present a report to the House to alert the House to the declaration and to advise on the government’s response. The legislation is not invalidated by the declaration.
38.The Privacy Act 1993 and Health and Disability Commissioner Act 1994 set out other aspects of the HRRT’s jurisdiction, as well as remedies it may award.  Under these statutes, the HRRT has jurisdiction to hear proceedings:
– in which a breach of privacy is alleged, if the Privacy Commissioner’s processes have not been able to resolve or settle the issue; and
– following a complaint to the Health and Disability Commissioner.

Inspector-General of Intelligence and Security

39. The Inspector-General of Intelligence and Security is an independent body to the intelligence and security agencies,17Jim Rolfe “New Zealand: Small Community, Central Control” in D Baldino (ed) Democratic Oversight of Intelligence Services (The Federation Press, New South Wales, 2010) 108  at 127. such as the Government Communications Security Bureau and the New Zealand Security Intelligence Service. The Inspector- General has oversight of the intelligence community and ensures statutory processes are followed when these agencies make decisions or otherwise act.18Rolfe, at 124.
40. Their role also involves taking action to ensure the statutory processes are followed, by either:19Rolfe, at 124.
a. Responding to a complaint;
b. Initiating an investigation into the process followed by an agency at the request or consent of a Minister; or
c. Reviewing individual processes randomly or methodically.
The types of investigation undertaken by the Inspector-General have included reviewing the adequacy of safeguards employed by security agencies, inquiring into whether an agency has acted properly when advising another government department, and examining the validity of an agency’s internal rules.20Rolfe, at 125.

State Services Commissioner

41. The State Services Commissioner acts as the employer of Public Service chief executives. The Commissioner is part of the executive and appointed by Ministers, but under statute has a wide ranging mandate and can act independently in investigating and reporting on performance failure by State service agencies and breaches of the State Services code of conduct.
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