The Public Law Toolbox
In an edited extract from her forthcoming new book, Public Law Toolbox, Mai Chen explains what public law is
The Public Law Toolbox approach sees public law, including public accountability and transparency mechanisms like the Official Information Act 1982, officers of Parliament, complaints bodies, the institutions of government and constitutional conventions, and regulators and regulation of the private sector as problem-solving tools for business and citizens.
Litigation is often regarded as the most orthodox means of resolving public and private disputes: the parties to the dispute assume their respective positions, counsel are instructed, and the matter is ultimately placed before a court to provide a binding judgment. This is often the ‘default position’ and it provides the backdrop for alternative forms of dispute resolution such as mediation.
Some problems do require court action, but they are not that common. For example, we had clients who wanted us to ask the Minister of Conservation to change his decision not to grant an approval to build a marina at Whangamata. Unfortunately, the instruction came too late; the Minister had effectively made his decision, and was functus officio, having no ongoing powers even if he wanted to change his decision. Only the Court could overturn the decision. The result was the Whangamata Marina case (Whangamata Marina Society Inc v Attorney General  1 NZLR 252 (HC)), where the Minister’s decision was set aside.
Good relations with government are not the answer to these kinds of public law problems; they require court decisions on legality. The willingness to litigate also creates incentives for the other side to seriously consider non-litigation options for solutions.
Litigation may be the last resort, but it is rarely the best place to start. Advocacy to influence the making of the public policy, and the law which often is needed to implement it, are cheaper and faster public law tools if engaged early enough in the process.
In reality, the majority of first-instance government decisions which cause problems for citizens or business are not dealt with by the Courts, but by other dispute resolution mechanisms like statutory watchdogs and complaints bodies. Court action is costly, time-consuming, uncertain, and often limited in the redress it can provide. For example, the only type of action available for some government maladministration may be judicial review. This does not give compensation and, if the decision is quashed, the same decision can be made again as long as the proper procedure is followed.
There are non-litigation alternatives to solve public law problems. Many of these are free, and give better outcomes in a shorter time frame. For example, some clients seek help after failed High Court litigation, when a complaint to the Ombudsman may have resulted in quicker and greater success in getting redress.
Making a complaint to the Ombudsman does not require lawyers’ assistance, although lawyers can assist in making the case that the complaint should be investigated; in assisting the complainant to comment on the response from the public agency/official complained about; or in negotiating a settlement if the Ombudsman has issued a draft report in favour of the complainant and this has driven the offending party to the table. The cost of a lawyer’s involvement in assisting with an ombudsman complaint is small compared with litigation.
Public law tools thus generally operate in the Executive and Parliamentary branches rather than the Judicial branch of government, so they are additional to reviews and appeals internal to departments and public agencies and to judicial appeals and judicial review. What can be used as public law tools to fix a public or private law problem include:
(a) Constitutional doctrines, conventions, and laws;
(b) Working with Ministers and officials and key office holders in government who can assist in diagnosing and resolving a problem;
(c) Policy and law reform, including making law and other Parliamentary processes;
(d) Tools to gather information and intelligence from government, such as the Official Information Act, which is essential to properly diagnosing public, and often private, law problems;
(e) Tools to enforce human rights, including legislation such as the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, and bodies such as the Human Rights Commission and the Human Rights Review Tribunal;
(f) Tools unique to Māori to resolve public law problems with the Crown and between Māori;
(g) International law treaties and declarations, and international customary law which impact on the Government’s behaviour;
(h) Royal Commissions, Commissions of Inquiry, ministerial inquiries, statutory inquiries, and select committee inquiries; and
(i) Mechanisms, usually statutory, which exact accountability and facilitate transparency in the government’s performance and expenditure of public monies and the exercise of public power. These include officers of Parliament, complaints bodies, regulators (including regulation of the professions), and tools allowing Parliament to exact accountability from Executive government.
In some areas, there is a range of public law tools that can be used; the skill is to understand the tools well enough and how they all operate to select the right one(s). Sometimes, the clustering also shows up duplications in the toolbox to fix the same problem.
The Public Law Toolbox approach asks which tool or combination of tools can best assist problem solving. There is rarely only one way to solve a problem, unless it is very late in the process and previous problem-solving attempts have not worked. “Public Law Toolboxing” a problem should throw up a range of tools that could assist.
This book explains the range of tools and how to choose the right tool(s) to fix a problem, because choosing the wrong tool is, at minimum, a waste of time and resources, and at worst, fatal to fixing a problem. The window of opportunity to solve a problem may be so small there is only time to try one public law tool. Also, once you start with the wrong tool, it may be difficult to withdraw the matter from that complaints body and get another to investigate it. Thus, starting in the right place is important.
This book also explains:
(a) How our system of MMP government really works and provides a problem-solving map. It also explains how government, ministers, and their officials view problems to understand what solutions would be workable from their perspective, and how best to find a common public or national interest;
(b) How the key decision makers and office-holders in the government system view and approach their role;
(c) The Public Law Toolbox approach and how to diagnose a public law problem or a problem that public law tools can assist in resolving;
(i) what are (or can be used as) public law tools;
(ii) when each tool is best used, and what delivery you can expect from each tool in terms of leverage, outcomes, and remedies;
(iii) any risks from using a public law tool that needs to be taken into account in assessing which tool to use;
(iv) what tools can be used in combination to ensure maximum effect, and sequencing and timing issues; and
(v) which public law tools are in good repair and which are defective and need reform or have problems interfacing with other tools.
The resources in the Public Law Toolbox
There is currently no single publication or online resource that provides information and guidance on how to use public law to more successfully generate policy, law reform, administrative and regulatory outcomes in government, and to solve problems between private parties, given how government really works. There is little written about what can be used as tools in problem solving with the government. There is also little written on how officers of Parliament, complaints bodies, and regulators operate, and how these bodies interact to form a safety net for citizens and businesses alleging breaches of government accountability, transparency, and fairness, or unlawful behaviour. This book aims to fill those gaps.
This is not an exhaustive text on public law and regulation or on every public agency or mechanism in the toolbox; however, the tools presented in the book are a selection of the most useful. This book leverages off the primary and secondary texts and articles about government and the constitution and its laws and conventions I have found most practically useful to explain how government really works, and how public law and public institutions and mechanisms can be used as tools to get policy and law outcomes and to solve problems with government and between private parties.
My hope is that this book will result in some important changes:
- A shift in public perception from a view of government as an all-powerful leviathan, and citizens and business as much less powerful, to an understanding that government is actually constrained by laws and constitutional conventions, and there are many mechanisms business and citizens can use to exact accountability from government, and to protect their own interests.
- A shift from apathy among businesses about government to an understanding of how government can benefit business, and how it can also create risks for business.
- A realisation among citizens, NGOs, and not-for-profit organisations which can find it harder to influence government on policy and legislation than better resourced businesses, that they can be just as influential through understanding how government really works and applying the Public Law Toolbox approach.
- A shift in how law is practised so there are not silos between public and private law, and that the academic study of public law includes the actual practice of public law, as well as theory.
- A shift in what business schools teach their students, to include regulatory and political risk and how to mitigate these risks and solve problems businesses have with government, and that business have with each other using public law tools.
The book will also discuss how placing too many limitations on government may stop it governing effectively and efficiently, as it is elected to do.
The Public Law Toolbox user
Citizens and businesses often have problems with government that they do not know how to solve. It may not even be clear to them which minister or department is responsible or who to deal with. Conversely, there is not always a clear understanding that the public is a client of government and that public power is subject to public law obligations.
Hence, this book is for:
- business, including business associations;
- unions and not-for-profit advocacy and provider organisations;
- Māori advocacy and mandate groups, hapū, iwi, and whanau;
- Government and those working in government;
- Lawyers and other professional advisers; and
- Students of law, business, public policy, and politics.
The purpose of this book is to empower those dealing with government to be more effective and successful; and to make constitutional issues ordinary and not extraordinary. This book seeks to reconceive the citizen/state relationship to a more level playing field. It also aims to raise consciousness about government and how it operates, and hence allow greater sophistication and quality of public debate about complex issues of law and policy and the constitution.
So much of the knowledge to successfully deal with government is not written down; the formal constitution and laws are often different from how government really works. MMP has complicated that reality. Thus, reading this book and understanding how to effectively use the public law toolbox should benefit businesses, ordinary citizens, government, and public officials.
Mai Chen is the founding partner of Chen Palmer, and is Adjunct Professor at the University of Auckland School of Business.
This is an edited extract from Chapter one of the Public Law Toolbox, which will be released in March 2012. For full text and footnotes, please refer to the Public Law Toolbox (LexisNexis, 2012).
NZLawyer magazine, issue 177, 10 February 2012