[4] The Executive is the core administrative decision making body of government and their constitutional domain lies in the execution of the laws laid down by the sovereign Parliament. In practical terms, the boundaries of this field are nothing less than amorphous. The various methods of accountability operate to verify the decision-making process, placing a restrictive influence on decision-makers, encouraging them to be justified in their actions so as to uphold the rule of law. Taking a broad view, although during the implementation of accountability mechanisms some bounds will be overstepped, this function is essential as not only does it trespass on these domains, it also defines them. There exists an organic power struggle that maintains a necessary equilibrium. When a ball is thrown there are two types of forces acting on it, those propelling it and those slowing it down. Without the latter, the ball would never stop. Accountability is like those restrictive forces and the ball is power. Choudry v Attorney General [1999] 3 NZLR 399 provides an example of this power struggle at work. There, the Minister for the Secret Intelligence Service issued a warrant to invade a private residence. It was held that the SIS had acted illegally as the Minister had no statutory authority to grant such a warrant. As a consequence, the boundaries of the minister’s power are delineated. Also in Fitzgerald v Muldoon [1976] 2 NZLR 615 the Prime Minister was made accountable for effectively setting aside an Act of parliament contrary to the rule of law.
[5] The Bill of Rights Act 1990 has also provided a means of achieving accountability in light of Simpson v Attorney General [1994] 3 NZLR 667. There monetary compensation was awarded under the Act for the first time for breach of s21 “unreasonable search” by the police. The word trespass implies the lack of a right to occupy but in reality, it is the very role of accountability to push against the fence. Inevitably if the system is operated by humans, the boundary will occasionally be crossed.
[6] Parliament is the creator of laws. In the New Zealand system it is the supreme institution and so it follows that any trespasses on authority will be much less direct than those on the Executive. We have a representative democracy, which is in reality not highly democratic. The people only vote once every 3 years and rely on the politicians thereby elected to govern in accordance with their proposed policies. There is no entrenched written constitution, no higher law, meaning that theoretically Parliament could pass any law it wishes. However, in practice, it is subject to political accountability so far as if it performs inconsistently with the beliefs of the majority, its members will fail to be re-elected.
[7] The Courts act as an indirect accountability mechanism through their ability to interpret legislation. In Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, the Court read down privative clauses to only apply to claims intra vires, essentially rendering them of no practical effect. Also, the Attorney General has a formal power to refuse assent to legislation by royal prerogative however she is constrained by constitutional convention not to.
[8] Accountability is essential for the functioning of the government system but, for practicality reasons, there are some restrictions that are necessary. For example, Cabinet discussions must be confidential so as to enable free and frank discussion. In Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 it was held that views expressed in cabinet are matters of confidence and that to prematurely disclose a former Cabinet Minister’s diaries would be detrimental to the public interest. There it was not held to be premature. Also in Prebble v TVNZ Ltd [1994] 3 NZLR 1 it was held that statements in Parliament cannot be utilised as evidence in Court due to the restrictive effects it would have on free and frank discussion in house.
“The friction between accountability and democratic values seems to be inevitable”
[8] Evidence of the existence of this “friction” lies manifestly in the emergence of an element of judicial activism over the past few decades. An illustration of the mindset underlying this movement can be seen in Fraser v State Services Commission [1984] 1 NZLR 116 where Cooke J said that “it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them”. This statement flies in the face of Parliamentary sovereignty. More specifically, in the area of judicial review, there has been a gradual extension of judicial reach. The concept of judicial review is essentially to deal with the decisions of bodies exercising a public power and ensure the legality, not of the merits, but of the process by which the decision was made (Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141).However, in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 Cooke J had held that merits of the decisions were relevant in determining whether the Minister in question had acted reasonably. Also developing grounds of review such as substantive unfairness (Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641) seem to be pushing the boundaries of justiciability.
[9] The consequence of this jurisdictional extension is to transfer discretionary power from the hands of the democratically elected representatives into those of the unelected judges. The practical reality in any system is that someone must have the last word otherwise the path to decisiveness would be never ending. John Laws supports judicial activism on the rationale that judges are apolitical and therefore more apt to make decisions as to fundamental rights. He suggests that the Executive may be “perhaps too much in love with a particular policy objective” (Griffith, J.A.G “The Brave New World of Sir John Laws” (2000) 63 Modern Law Review 159). However the notion that judges are apolitical is about as credible as saying that they are not morally motivated human beings. For example, ever since Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 the threshold for when decisions were reviewable by the Court on grounds of irrationality was, as expressed by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, when a decision was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. Wheeler and others v Leicester City Council [1985] 1 AC 1054 was decided on improper purpose grounds but Lord Roskill stated that the actions of Leicester City Council, in withdrawing the use of the field, had met the Wednesbury threshold for enabling judicial intervention on that ground. This suggestion was a blatant misapplication of the test, obviously influenced by factors other than purely the facts of the case, and the other judges expressed their staunch disagreement. This is an example of the politicisation of the judiciary.
[10] The Court cannot be seen as the voice of objective reason as the judges tend to come from a small cross section of society and are subject to the same types of class, status and background limitations as the man on the street. Therefore a Court that intervenes on the merits will “under the guise of preventing the abuse of power, be itself guilty of usurping power” (Police v Evans). It is in the hands of the elected and accountable politicians that democratic mandate lies.
[11] The development of freedom of information legislation has lead to increased accountability of democratically elected decision-makers in the last forty years, promoting a more transparent decision making process. The main pieces of legislation are the Ombudmen Act 1975, the Official Information Act 1982 and the Privacy Act 1993. These Acts are external controls ensuring minimum standards of public decision making. The office of the Ombudsmen has become a very important role as it is the most easily accessible accountability source, serving to provide an independent check on the arbitrary use of power by the Executive. It provides an external complaints mechanism whereby recommendations may be made. Such recommendations are not legally binding but are politically very persuasive. S4(1)(a)(ii) of the Official Information Act 1982 expresses a purpose of the Act to be “to promote accountability of ministers of the crown and officials”. This Act enables access to information in the public sector. The Privacy Act 1993 grants requests by natural people for information about themselves.
[12] The development of public interest immunity in this area also reflects a rising level of accountability. Public interest immunity is a rule of evidence to exclude information from Court proceedings if its disclosure would be contrary to the public interest. In earlier cases like Duncan v Cammell, Laird & Co Ltd [1942] AC 624, the Courts tended to defer to government claims but with the decades that followed this became less so. In Environmental Defense Society Inc v South Pacific Aluminium (No 2) [1981] 1 NZLR, it was held that no absolute immunity existed for certain types of documents, instead having to undergo a public interest balancing process. Since then the tide may have receded somewhat as in Choudry the Court held that certain documents would not be disclosed as the government claimed that immunity existed on grounds of national security, and therefore such documents were non-justiciable.
[13] Indeed this “friction” is inevitable as long as the system is operated by people, but the true question to be raised is, is it desirable? The answer is yes. The interplay between the desires of those in power and those governed serves to establish the boundaries which define the composition of our constitutional order. Democratic values call for accountability and without the latter, the former could not exist. It would be my submission then that the existence of this “friction” is completely necessary for the operation of our interdependent system.
Word Count: 1940 - I typed the essay out initially with one word in place of all full citations and a computer word count came to 1940.
Rule of Law – everyone is subject to the law.
Privative Clause - clause implemented by Parliament to exclude Courts from reviewing decisions of a public body.