Q1: What is the source of power for the decision?
The first step for making a good decision is to understand the source of the decision-making power.
This source will usually be in statute or regulation…
To identify the source of the decision-making power, you first need to consider whether there is any governing legislation. You may work in an area which has a specific statute. For example, if you are making decisions about prisoners, look to the Corrections Act.
Or, if you are making decisions about social development, look first to the Social Security Act. If you are not sure whether there is relevant legislation for the decision you are making, ask your in-house lawyer.
Alongside properly understanding the source of power, it will be important to properly describe the power in the final decision-making documents [see Step 4] as well as in any initial papers setting out or approving processes to be used [see Step 2]. It can be tempting to paraphrase. Once a source of power is identified, particularly if found in statute or regulation, always quote the enactment correctly. To do otherwise risks a challenge that the decision-maker misdirected themselves as to the law [see Question 19].
… but may be found elsewhere, in limited cases.
Usually, public officials’ power to make decisions comes from statute or regulations. However, this is not always the case.
There are some decision-making powers sourced in the common law and the ‘Royal prerogative’ (the remaining few powers of the Monarchy).
If you have a statute dealing with a particular area or policy or service delivery, and it does not provide you with the powers you need, consult with your lawyers. It may be possible to find an alternative source of power for the decision, but there are limits.
| Following the Canterbury earthquakes the Government declared certain damaged areas to be ‘red zones’ and offered to purchase land and buildings. |
| When the Quake Outcasts sued, the Government argued that the decision to create the zones did not need to be made under the Canterbury Earthquake Recovery Act 2011 but could instead be sourced from the common law or Royal prerogative, as applicable. The Supreme Court found otherwise, saying the Act’s machinery needed to have been used. The Act ‘covered the field’. |
| Quake Outcasts v Minister of Canterbury Earthquake Recovery [2016] 1 NZLR 1 |