Rayner Thwaites and Dean R Knight
While regulation is primarily concerned with the achievement of a social end, administrative law performs the secondary role of examining how the means to this end is carried out. This paper promotes a framework to provide greater clarity to the purposes and modes of accountability in administrative law, in particular judicial adjudication. The authors rely on the proposition that accountability has three purposes: constitutional, democratic and learning. Constitutional accountability looks to the extent to which the regulation limits the ability for the executive to abuse its powers and privileges; democratic accountability examines whether the regulatory arrangement provides the opportunity for the voter to control executive actions; and learning accountability requires the executive to reflect upon and modify its actions to result in more efficient and effective regulation. The paper evaluates each purpose against the three criteria of the accountability relationship: (1) whether the decision maker has informed the concerned forum of his or her conduct, (2) whether there has been opportunity to debate the decision maker’s conduct, and (3) whether the affected forum or a third party can pass judgment on the decision maker’s actions and present him or her with consequences. Each criterion is characterised in a different way depending on the relevant purpose.
These accountability purposes are illustrated through discussion of the New Zealand Court of Appeal decision of Lab Tests and to the Regulatory Standards Bill 2011. The paper suggests that judicial review needs to be aware of these forms of accountability in shaping the judicial review process, illustrated in Lab Tests, where constitutional and democratic purposes were widely discussed in the court’s judgment, but the learning purpose was only fleetingly touched upon. This, the authors suggest, highlights a gap in judicial review as a means to improve regulation.
The paper also suggests that efforts to improve regulatory management will be misdirected if familiar mechanisms that serve other tools that establish accountability are merely transposed to a new tool. The Regulatory Standards Bill 2011, for example, was not formulated on any discussion of the learning purpose. The authors contend that the learning purpose needs to be recognised in accountability mechanisms.