Q2: LIMITS

Q2: What are the limits on your decision-making?

Public powers of decision-making will almost always be limited in some way, whether by statute or common law.

It is important to understand the nature of the decision-making power, and the exact words used.  If the source of the decision-making power is a statute, the nature of the power will mean that it is either something that:

  • must be done (a ‘rule’ or a ‘duty’); or
  • may be done (a ‘discretion’). 

Section 45A of the Corrections Act contains both a rule and a discretion.   The Chief Executive must make rules declaring items of property that a prisoner may be issued with or allowed to keep.  The Chief Executive may also make rules imposing conditions that attach to an item of property.

A rule or duty is a very limited and specific power.  It requires the particular function to be exercised in a certain way. 

By contrast, the exercise of discretion enables a decision between several options, usually including a choice as to whether to act or not.  The options before the decision-maker may be wide or can be narrowed by limits on how the discretion can be exercised.

A decision-making power is also always limited by its purpose.  Even where the statute appears to give the widest possible discretion, the discretion must be exercised in a way that is consistent with the purpose of the statute.  The purpose of a statute can be identified by the “purpose” or “objects” section, the statute read as a whole, its history, or surrounding legislation, or other wider factors (like Parliamentary debates). Particular parts of statutes may (explicitly or implicitly) have their own sub-purposes.

The Court of Appeal held (by majority of 3 to 2) that section 11 of the Interpretation Act 1999, which allows public officials to take certain actions putting legislative infrastructure into place once an Act has been passed but before it comes into force, did not extend to the registration of unions before the Employment Relations Act 2000 came into operation.
The majority of the Court recognised that the interpretation provision was not to be narrowly read, but nonetheless were unable to find that administrative steps to register a union under a new Act could be said to be “necessary and desirable” steps to bring the new Act into operation, as enabled by section 11.  The majority found that other transitional provisions ensured continuity and prevented a ‘hiatus’ – which was the purpose for section 11 that the Court found most important – meaning that section 11 did not need to be extended that far and could be limited to enabling internal and more mechanical establishment matters within the government. (The minority took a different view of the purpose of section 11 and the relevant employment law provisions, and would have confirmed that the early registrations were valid)
New Zealand Employers Federation Inc v National Union of Public Employers [2002] 2 NZLR 54.

Powers can also be limited by things not expressly set out in a statute.  This can include principles established by the courts (common law); the need to exercise the power reasonably; or obligations to consider particular matters (such as may arise under Treaty of Waitangi obligations) or undertake particular processes to meet natural justice requirements. These matters are discussed in more detail in Steps 2 and 3.

The Court of Appeal declared invalid regulations which allowed the Chief Executive of the Ministry of Fisheries to allocate catch entitlements, when the regulations themselves did not specify the fish stocks to which they related or provide any rules or guidelines as to how allocation will occur.  The statute envisaged that the regulations themselves would stipulate how the entitlements would be allocated, and therefore the level of discretion left to the Chief Executive invalidated them.
Official Assignee v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 722
A regulation requiring farmers to continue selling their milk to the same processor for a whole season (once they had started selling to that processor) was overturned. 
While the objective behind the making of the regulation (of providing commercial certainty to processors and market stability) may have been sensible, it was not within the express or implied objectives of the empowering Act to use the regulatory power for that purpose.
Carroll v A-G [1933] NZLR 1461
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