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Challenging decisions and conduct of government agencies

Challenging departmental policies

It’s common for government departments to adopt specific policies and formal procedures to guide them when they exercise the decision-making powers given to them by Acts of Parliament. These are published in the form of policy statements and manuals – for example, Work and Income’s manuals and procedures, available on its website, www.workandincome.govt.nz.

The courts have generally encouraged government agencies to adopt and publish policies, as this provides the public with more consistent decision-making than if officials had a completely unguided discretion, while at the same time allowing officials more flexibility than if they had to follow a set of legally binding regulations.

Pub Charity v Attorney-General [2003] NZAR 512 (HC); Legal Services Agency v Sweeney (2005) 17 PRNZ 767 (HC); Criminal Bar Assoc of New Zealand v Attorney-General [2013] NZCA 176

Departmental policies aren’t law. So, if there’s a conflict between a government agency’s adopted policy and the Act that gives the agency its powers, the Act overrides the policy.

If for example an Act gives an agency a power to make decisions about certain issues, such as granting licences, and the Act sets out the criteria that licence applications have to meet, the agency can’t adopt a policy with different criteria.

Similarly, an agency policy can’t narrow the terms of the discretion that the relevant Act has given the agency. In one High Court case, for example, the judge found that the Legal Services Agency (the body running the Legal Aid scheme at the time) had limited its discretion in cases of “hardship” (the term used in the Act) by focusing only on financial hardship. In legal terminology, the agency had here “fettered” its own discretion, which isn’t allowed. Policies also can’t be in such absolute terms that they prevent decision-makers from making exceptions to the policy in particular cases.

Vickerman Fisheries Ltd v Attorney-General (High Court, Wellington, CP 1007/91, 26 August 1994)

An agency’s policies also have to further the purposes laid out in the Act that gives the agency its powers and discretion. It can’t adopt a policy to achieve some other purpose.

Do departments always have to follow their policies?

Lalli v Attorney-General [2009] NZAR 720 (HC)

On the one hand a department’s decision could be legally invalid it if relies too heavily on fixed decision-making criteria set out in its policies, rather than exercising the discretion given to it by the relevant Act in each individual case (see above). On the other hand, a department’s decision may also be open to legal challenge if it suddenly changes or departs from the policy that it has published and that people are familiar with.

The rules of natural justice say that if a department has published a policy, the people affected by it have a “legitimate expectation” that this policy will continue to be followed, and the department can’t simply change the policy without first notifying the affected people about the change.

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