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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 legislation. 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.

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.

Pub Charity v Attorney-General [2003] NZAR 512 (HC)

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.

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

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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Dealing with government agencies

Where to go for more support

Community Law

Your local Community Law Centre can provide you with free initial legal advice.

Find your local Community Law Centre online: www.communitylaw.org.nz/our-law-centres

Office of the Ombudsman

The Ombudsman handles complaints about Government agencies.

Website: www.ombudsman.parliament.nz
Email: office@ombudsmen.parliament.nz
Phone: 0800 802 602

To make a complaint online: www.ombudsman.parliament.nz/get-help-public

Privacy Commissioner

The Privacy Commissioner website provides information about your rights and responsibilities under the Privacy Act 2020 and the Privacy Principles.  It also outlines the role of the Privacy Commissioner and how to make a privacy complaint.

Website: www.privacy.org.nz
Email: enquiries@privacy.org.nz
Phone: 0800 803 909

To make a complaint online: www.privacy.org.nz/your-rights/making-a-complaint

Te Kāhui Tika Tangata/Human Rights Commission

The Human Rights Commission website provides information about human rights in Aotearoa and outlines how you can make a complaint to the Commission.

Website: www.tikatangata.org.nz or www.hrc.co.nz
Email: infoline@hrc.co.nz
Phone: 0800 496 877 (0800 4 YOUR RIGHTS)

To make a complaint online, download a complaint form or find out more about the complaints process: www.tikatangata.org.nz/resources-and-support/make-a-complaint

Health and Disability Commissioner

The Health and Disability Commissioner website sets out your rights under the Code of Health and Disability Services Consumers’ Rights and how you can make a complaint to the Commissioner.

Website: www.hdc.org.nz
Email: hdc@hdc.org.nz
Phone: 0800 11 22 33

To make a complaint online: www.hdc.org.nz/making-a-complaint/make-a-complaint-to-hdc

Independent Police Conduct Authority (IPCA)

The Independent Police Conduct Authority website has information about how the Authority receives and investigates complaints about the Police.

Website: www.ipca.govt.nz
Email: info@ipca.govt.nz
Phone: 0800 503 728

To make a complaint online: www.complaints.ipca.govt.nz/195

Directory of Official Information

The Directory of Official Information lists the information each central government body holds.

Website: www.justice.govt.nz/about/official-information-act-requests/directory-of-official-information

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