PPAL 6120 Ethics, Privacy and Access to Information

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PPAL 6120Ethics, Privacy and Access to
Information

• March 3, 2009
• Ian Greene

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Introduction to Administrative Law, Ethics,
Privacy and Access to Information

• Schedule for tonight
• Brief Introductions
• Course expectations
• Electronic resources
• Discussion about readings assigned for this
  evening

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Course Expectations

• Assignment on public sector ethics (15)
• Short paper on public sector ethics (25)
• Assignment on administrative law (15)
• Short paper on privacy and access to information
  (25)
• Seminar participation (10)
• Seminar presentations (10 2X5)
• Alternative mark breakdown
• Avoid Plagiarism

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Introductions

• Name
• How does your work (current or past) relate to
  ethics, privacy or access to information?

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Democracy, ethics, administrative law, privacy
and access to information

• Democracy is government based on the principle of
  mutual respect, which implies
• Social equality
• Deference to the majority
• Minority rights
• Freedom
• Integrity
• These principles imply ethical duties for public
  officials impartiality, fiduciary trust, and
  accountability responsibility. The 5
  principles and 3 ethical duties are supported by
  the legal principles of the rule of law, and the
  doctrine of fairness.
• Ethics principles in the public sector are
  derived from mutual respect
• Administrative law helps to promote the 3 ethical
  duties, supported by the rule of law and the
  doctrine of fairness
• Legislation and case law surrounding privacy and
  access to information are derivatives of the
  principle of mutual respect, especially the
  principles of equality, freedom integrity, the
  ethical duties of fidiciary trust, and
  accountability and responsibility. The case law
  surrounding privacy and access to information
  provides examples of the application of the
  principles of administrative law.

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Presentation Chapter 1, Greene Shugarman

• Lisa Peacock
• Discussion

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Presentation Chapter 1, Kernaghan and Langford

• Heather McMartin
• Discussion

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Mullan Chapter 1

• What is administrative law?
• Admin law is one aspect of public law (others
  constitutional law and criminal law)
• The principles by which courts supervise
  supervise the functioning of persons and bodies
  that derive their powers from statute or the
  Royal prerogative. These persons and bodies must
  respect the limits of their authority
• Abuse of power is acting outside legal authority
• Two concepts are central
• Procedural fairness (including natural justice)
• Jurisdiction (public persons and bodies must act
  within jurisdiction)
• Courts (superior) have jurisdiction over
  administrative tribunals to ensure procedural
  fairness and intra vires

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Boundaries of administrative law are fuzzy

• Sometimes private organizations are regulated by
  administrative law eg membership (even in
  religious organizations)
• Contracting out to for-profit or nonprofit
  agencies
• Diceys definition of the rule of law includes
  the equality of all before the law including the
  subjection of administrative officials to the
  ordinary law of the land administered by the
  ordinary law courts.

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The players, roles limits

• Government
• Formal head of government is the monarch, who has
  delegated authority to the governor-general
  (federal order) and lieutenant-governors
  (provincial orders)
• By convention, most royal prerogative powers
  are exercised by the first minister and cabinet
  (executive)
• Many of the powers of the executive are
  prescribed by statutes
• The monarch and her representatives retain the
  reserve power power to act against the advice
  of the first minister to protect the
  constitution, written and conventional
• Conventions are enforced by the political
  process, not by the courts         -Responsible
  government         -cabinet responsible to the
  legislature         -Ministerial accountability
          -Cabinet solidarity
• Constitutional principles of the rule of law, and
  judicial independence, are enforced by the
  courts.
• Public servants

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Other players

• Administrative tribunals
• Regulatory agencies
• Crown corporations
• Bodies created by statute, such as universities
  and hospital board, professional organizations
  (eg. the Law Society of Upper Canada), Indian
  band councils, municipalities
• Sometimes affects foreign bodies such as visitors
  to Canada, or foreign corporations doing business
  in Canada. (Federal laws have extraterritorial
  effect)
• Those involved in govt procurement

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Roles

• How much discretion should a statute give a
  public servant?
• Dicey none
• Jennings in the age of social welfare, experts
  working for government require discretion
• Mullan discretionary executive powers are at
  the heart and sole of modern legislation.
• Discretion involves choice, but according to the
  relevant laws and regulations, and limited by the
  constitution and procedural fairness/natural
  justice

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Natural Justice Fairness

• Natural Justice
• Nemo judex in sua causa (impartiality)
• Audi alteram partem (hear both sides)
• Functions of Admin. Agencies
• Legislative (eg. CRTC)
• Administrative (no discretion)
• Executive (discretion)
• Judicial or quasi-jud. (determine rights and
  obligations)

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Judicial review

• Judicial review
• Jurisdictional
• Division of powers
• Charter of rights
• Limits in relevant statute and regulations
• If outside jurisdiction, ultra vires
• Abuse of power public official acting without
  legal authority
• Natural justice applies to judicial or
  quasi-judicial tribunals
• Doctrine of fairness natural justice applied to
  all public decision-makers where relevant
• Patently unreasonable decisions are ultra vires
• Privative clauses
• No appeal of the substantive issue to a court,
  but they cant stop judicial review
• Tribunal cant hide behind privative clause if
  there is a const issue, or if it is claimed a
  decision is patently unreasonable

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