PUBLIC LAW 2004

COMPULSORY WRITTEN ASSIGNMENT

THOMAS HORDER

1288310

TUTOR: JOHN DAWSON


The main function of public law is to promote the accountability of government. This function, however, often has the effect of trespassing on the domains of our democratically elected decision-makers and law-makers. The friction between accountability and democratic values seems to be inevitable”

[1] This is a critical discussion in which I shall question the legitimacy of the above statement in light of the constitutional principles existent within the New Zealand legal system. I submit that the friction between accountability and democratic values is, in reality, no friction at all. It is an apparent friction which, upon deeper reflection, serves to harmonise the workings of the entire structure into a coherent equilibrium.

“The main function of public law is to promote the accountability of government”

[2] The concept of accountability is defined as “liable to be called account” (Shorter Oxford English Dictionary Oxford University Press; 5th ed. (2002)) and government in this sense means the Executive and the Legislature. This statement suggests that public law promotes a situation where the Government is liable or answerable for their actions. Prima facie, this seems to be an accurate conception. After all, many of the documents which form the foundation of our public law today (such as the Bill of Rights 1688) were forged out of a collective desire by the people to place a limit on the exercise of public power. However, this view only considers one side of the coin. The true function of public law is to ensure the successful operation of the constitutional system for the greater good of society. In pursuance of this, governmental institutions must abide by the law that they are constitutionally subject to by way of the rule of law (Entick v Carrington (1765) 19 State Tr 1029; 95 ER 807). To achieve this end, such institutions are to be held accountable for deviation from their righteous path – the restrictive function. However, to say this is the main function is not altogether correct. Public law also serves a positive function as a means of empowerment for public institutions, enabling them to exercise public authority in the first place (Papaspyrou, Nicholas “Government Under Law”, Paper No. 1 (October 1999, www.law.harvard.edu). Public law is not a singular directional force, rather the area within which the force exists.

“This [accountability] function, however, often has the effect of trespassing on the domains of our democratically elected decision-makers and law-makers”

[3] In an abstract sense, trespass is the unwarranted entry into the area of activity (the “domain”) of another. Therefore, this sentence suggests that accountability often causes the unwarranted entry into the areas of activity of the Executive and of the Legislature. Each arm must be dealt with in turn. In questioning whether a “trespass” has occurred we must first understand what constitutes the domain in question.

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[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 ...

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