1. PPAL 6120 Ethics, Privacy and Access to Information
March 3, 2009
Ian Greene

2. 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

3. 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

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

5. 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.

6. Presentation: Chapter 1, Greene & Shugarman
Lisa Peacock
Discussion

7. Presentation: Chapter 1, Kernaghan and Langford
Heather McMartin
Discussion

8. 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

9. 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
Dicey’s 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.”

10. 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

11. 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 gov’t procurement

12. 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

13. Natural Justice & Fairness
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)

14. Judicial review Judicial review Privative clauses 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 can’t stop judicial review
Tribunal can’t hide behind privative clause if there is a const issue, or if it is claimed a decision is patently unreasonable