Cabinet Minister’s diaries

"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 law1 (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. [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 clauses2 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.