11 October 2004
Dear Mr Johnson
I have received your further letter dated 1 October 2004, in which you request that I investigate, under section 13 of the Ombudsmen Act 1975, a decision by the Minister of Conservation, made on 12 March 2004, to enter into a conditional agreement for land access with the Pike River Coal Company Limited.
In your view, the Minister's decision is:
You are further of the view that the Minister:
"failed to properly direct himself in law (an error of law), he failed to weight the mandatory relevant matters, and he did not exercise his discretion in a real way."
It may be helpful if I explained that an Ombudsman's principal function under the Ombudsmen Act 1975 is to investigate those acts, omissions, decisions or recommendations made in or by central and local government departments and organisations, specified in the First Schedule of the Act.Any investigation undertaken by an Ombudsman focuses on matters of administration and seeks to determine whether the actions of the agency complained of have been resonable or not, in all the circumstances of the matter. The Department of Conservation is listed in the Schedule and is therefore subject to an Ombudsman's jurisdiction under the Act. An Ombudsman does not however have jurisdiction over Ministers of the Crown, so any decision made by the Minister of Conservation is not subject to investigation by an Ombudsman under the Ombudsmen Act.
As you are aware, I am currently investigating certain decisions made by the Minister with regard to the the provision of information to you which pertains to the issue of concern to you. I am able to conduct those investigations and review because they relate to the provision of information and are conducted by me under the Official Information Act. Under this Act, an Ombudsman has jurisdiction over Ministers of the Crown. However, under the Ombudsmen Act, that is not the case.
It follows from this, that, I do not have the jurisdiction to investigate the Minister's decision of 12 March 2004. An Ombudsman is not an appeal authority against decisions made by Ministers of the Crown.
If you remain of the view that the Minister's decision is unreasonable, then the approporiate forum in which you may wish to test that view may be through the process of judicial review in the Courts.
I appreciate that you will be disppointed with my response to you, but an Ombudsman is able to do only what the law allows, and in this case, that law does not give me the requisite jurisdiction over the Minister.
Yours sincerely
Mel Smith
Ombudsman