APPENDIX IV: Brief information relating to some of the tribunals considered in the paper
The information set out below is called in part from departmental and tribunal responses to the questionnaire distributed in 1985. In some cases only brief legislative information is provided.
Equal opportunities Tribunal
This Tribunal which was established by the Human Rights Commission Act 1967 deals with complaints of unlawful discrimination
Indecent Publications Tribunal
This body which was set up by the Indecent Publications Act 1963 is being considered by the recently established Committee of Inquiry.
Planning Tribunal
This important tribunal, established by the Town and Country Planning Act 1977, exercising jurisdiction under that Act and a number of others. See e.g. the discussion in the report by A Hearn QC, Review of the Town and Country Planning Act 1977 (1987)
AGRICULTURE AND FISHERIES
Animal Remedies Board
This tribunal, which was established by the Animal Remedies Act 1967, replaced the Stock Remedies Registration Board. It has 11 members who are appointed by the Minister of Agriculture for a term of three years. It includes veterinarians and pharmacists, most of whom are nominated by specified manufacturers, user groups or by the Ministry. The Board's principal function is to licence the importation or manufacture of animal remedies. An appeal against the Board's decision is to be determined by the Administrative Division of the High Court sitting with two assessors.
The Board's functions are comparable with those of the Pesticides Board and the Toxic Substances Board dealt with below.
Berryfruit Marketing Licensing Authority
Established by the Berryfruit Marketing Licensing Regulations 1983, the Authority consists of nine members appointed by the Minister of Agriculture. Six of the members are appointed through the Berryfruit Growers Federation, two representing growers of blackcurrants, two representing growers of blackberries, and two representing the Federation. Two members are nominated by the Berryfruit Sub Committee of the Horticulture Exports Council, and one member is appointed as a representative of the Government. The Authority is responsible for the promotion and development of the berryfruit industry and is also responsible for the issue of berryfruit exporters licences. The Authority may grant permits of exemption from licensing to export berryfruit.
Regulation 29 provides that appeals against the Authority's decision on the grant revocation or renewal of a licence are to be referred to an arbitrator. The arbitrator is to be a barrister or solicitor of at least seven years standing, nominated by the President of New Zealand Law Society. There is provision for an appeal on a question of law to the High Court from the decision of an arbitrator.
Game Industry Board
This Board is established pursuant to the Primary Products Marketing Act 1953 which permits the Minister of Agriculture and Fisheries to create regulatory regimes to enable the producers of primary products to control the marketing of their products. The Board joins such marketing groups as the berryfruit, kiwifruit, pork and raspberry producers, all of which should be dealt with on the same basis.
The Board, according to the Game Industry Board Regulations 1985/154, consists of 11 members appointed by the Minister. Five members represent deer farmers and are nominated by the Deer Farmers' Association; four members represent game producers and processors and are nominated by the Game Exporters Council; and one government member represents the interests of consumers. The term of appointment is three years, subject to reappointment.
The Board's functions include the promotion of the game industry in New Zealand and the orderly marketing of game and game products in New Zealand and overseas.
The Board is financed by a levy on deer slaughtered and packed in deer slaughtering premises or in game packing houses. The levy is fixed annually by the Board and published in the Gazette.
The Regulations also provide for the compulsory licensing of game exporters. Before issuing a licence the Board may require an applicant to produce evidence of business experience and financial standing. Further, the Board shall issue the licence if "and only if" it is satisfied, "in relation to the orderly marketing and control of export game," that the applicant has, among other attributes, suitable facilities, adequate international marketing experience and will, comply with the Board's policy relating to the marketing and promotion of export game. The Board may also revoke licences if the licensee has failed, inter alia, to comply with any condition of the licence, has unsuitable facilities or is "no longer of sound financial standing or business repute".
An appeal against any of the Board's decisions involving a licence shall be heard by an independent arbitrator appointed by the Minister. The arbitrator shall be a barrister or solicitor of at least seven years' standing. Appeals on a point of law shall be heard by the Administrative Division of the High Court.
Kiwifruit Marketing Licensing Authority
The Authority was established by Regulation 3 of the Kiwifruit Marketing Licensing Regulations 1977. The Authority consists of eight members, seven of whom are elected as representatives of wards prescribed in the Act and one appointed by the Minister as a representative of the Government. The Government member is intended to represent the interests of consumers of kiwifruit. The Authority is required to consider annually whether the number and quality of existing kiwifruit exporters licences is sufficient for the requirement of the industry. If the Authority resolves that additional licences are needed it is to publish a notice in the Gazette specifying the number of licences intended to be allocated and calling for applications for approval of eligibility to tender for such licences. On receipt of any applications the Authority must take prescribed factors into account in considering whether the applicant is eligible to tender for a licence. The allocation of licences by tender shall be to the highest bidder or, where bids are identical, by lot.
Where a licensee does not comply with the conditions of the licence the Authority may suspend or revoke the licence.
Where the Authority thinks that conditions in the kiwifruit industry have materially changed, it may conduct a review of exporters licences. After such a review the Authority may decide to revoke all or any of the licences.
Appeal against the Authority's decision on a licence are to be made to the Kiwifruit Licensing Appeal Tribunal.
Meat Committee
The Meat Act 1981, s.45, provides that the Minister of Agriculture may give certain directions to slaughter house licensees (which include requiring them to revive stock) and may determine dispute between licensees. Affected parties may appeal the Minister's decision at which time a Meat Committee is constituted. The Committee consists of a District Court Judge and two assessors, one each nominated by the Minister and the appellant. There is no information about the frequency of meetings.
National Hydatids Council
This Council was established by the Hydatids Act 1959 and continued in the Dog Control and Hydatids Act 1982, section 19. The Council consists of an officer of the Ministry of Agriculture and Fisheries, an officer of the Department of Health, and one person nominated from each of Federated Farmers' of New Zealand, New Zealand Counties Association, Municipal Association of New Zealand, New Zealand Kennel Club, New Zealand Federation of Young Farmers' Clubs, New Zealand Veterinary Association, and the New Zealand Institute of Hydatids Control Officers. Other person may be appointed from time to time.
Amongst other functions relating to Hydatids Control, the Council is to fix qualifications necessary for a person to act as a Dog Control Officer and to issue a certificate of competency to perform the duties of a Dog Control Officer. The Council is also entitled to revoke any such certificate if it is satisfied that the person holding the certificate has neglected to carry out hi duties in accordance with the techniques and methods fixed by the Council. An appeal against such a resolution is to the District Court.
The Council also has an appellate function. Where a territorial authority has received an objection to a notice given by a Dog Control Officer relating to dog proof premises on their land and the owner or occupier is dissatisfied with the territorial authority's decision on the objection, that person may appeal in writing to the Council. The Council may also review the decision of a territorial authority to modify or cancel any such notice. In both cases adequate notice must be given to the owner of land and the territorial authority and both ate entitled to be represented and to be heard.
Hydatids Board of Review
Where the National Hydatids Council refuses to approve a territorial authority's plan for hydatids control or approve such a plan subject to conditions or modifications, the territorial authority may appeal against the Council's decision under section 32 of the Act. Upon receipt of notice of appeal, the Secretary of the Council shall take steps necessary for the constitution of a Board of Appeal. The Board is appointed in accordance with the Dog Control and Hydatids Regulations 1985. The Board of Appeal consists of a District Court Judge and two assessors. The Board of Appeal shall hear the appeal by way of re-hearing and may confirm, modify or set aside the decision of the council.
New Zealand Fishing Industry Board
This Board was established by section 3 of the Fishing Industry Board Act 1963. The Board comprises seven members including the Director-General of Agriculture and Fisheries and members nominated by the New Zealand Federation of Commercial Fishermen, the New Zealand Share Fishermen's Association, the New Zealand Seafood Processors Association, and an organisation representative of retailers of fish.
Section 10 gives the Board a licensing function under the Fish Export Licensing Regulations 1982. The regulations prescribe the requirements for. the issue of a licence. The Board is empowered to grant, renew or revoke a licence under those regulations.
Appeals against a decision of the Board on a licence are to the Administrative Division of the High Court sitting with two assessors.
New Zealand Horticulture Export Authority
This nine member Authority is established by section 5 of the New Zealand Horticulture Export Authority Act 1987. The members include six representatives of producer and export interests, two members representing the Government with knowledge of and experience in marketing and the Chairman who is not to be a member of any of the representative bodies.
The Authority may grant an export licence if it is satisfied that the applicant has adequate experience and competence in international marketing and in handling export product, is of sound financial standing and business repute, and has not been convicted of an offence relating to exporting generally. It is possible to grant a provisional licence for a period of not less than two years if an applicant lacks the requisite experience in international marketing. The Authority holds a hearing on the question of whether a licence should be granted only if it is not satisfied after considering an application, that it should grant a licence or provisional licence. The Authority may prescribe conditions on a licence and, if it believes on reasonable grounds, that a licensed exporter is conducting export prejudicial to the current export marketing strategy for the product it may impose extra conditions on the licence. The exporter may request a hearing on the matted if the exporter objects to those conditions.
The Authority may revoke, suspend or cancel a licence if the exporter has failed to comply with any condition attached to the licence or the exporter has been convicted of an offence relating to the exporter's product which is of such a nature as to cast doubt on the ability of the exporter to carry out exporting operations. Again, the exporter may request a hearing on the matter.
Where a applicant for, or a holder of, an export licence is dissatisfied with any decision of the Authority relating to a licence, they may appeal in writing to the Authority. On receipt of notice of appeal, the Authority shall refer its decision to an arbitrator appointed under section 43(4) of the Act. The arbitrator is to be a barrister or solicitor of the High Court of at least seven years standing nominated by the President of the New Zealand Law Society. The arbitrator may affirm, reverse or vary the decision given by the Authority. Appeals on questions of law against the arbitrator's decision are to the High Court.
New Zealand Poultry Board
This Board, established by the Poultry Board Act 1980, consists of eight members appointed by the Governor-General. Three members are to be appointed as- representatives of the Government and five are to be appointed. as representatives of poultry farmers on nomination by various poultry farmers groups. The Board is empowered to grant or revoke a certificate of registration of a poultry hatchery. It is also responsible for the granting of entitlement licences which entitle the holder to keep more than 100 laying birds. The Board may grant or revoke such a licence.
Regulation 28 provides that any person may appear against the decision of the Board on the grounds that either the Board's decision was not made in accordance with the regulations or the Board's decision was manifestly unfair to the appellant. Appeals are to be heard by an independent arbitrator who shall be a barrister or solicitor of the High Court nominated by the President of the New Zealand Law Society. The arbitrator may affirm, vary or reverse the decision of the Board.
Pesticides Board
The principal function of this Board is to register pesticides before their sale or distribution in New Zealand. It may also issue experimental use permits to obtain field evaluations. Further, it has the tasks (a) to encourage research into pesticide efficiency; (b) to disseminate information about pesticides; and (c) to train pesticide applicators and to maintain a voluntary register of such people. The Board sits for approximately six half days a year and seven of the 12 members represent agricultural industry groups. The other five represent various government departments.
The Ministry considers that the Board should be retained as the collective expertise ensures that complex technical issues are dealt with in a professional manner.
Pests Destruction Boards
Section 30 of the Agricultural Pests Destruction Act 1967 provides that there shall be a Pests Destruction Board for every pest destruction district. Each Board consists of six members, of whom five shall be elected by the electors of the district, and one appointed by the Minister of Agriculture. Under section 34 of the Act the Secretary of each Board shall compile a list of ratepayers in the district. The Board, under section 38, is to hear objections to the inclusion or exclusion of any person's name on the list by way of public hearing. Appeal against the Board's decision on objections is to the District Court.
ENERGY
Coal Mines Council
This tribunal continues to operate actively. It is principally concerned with industrial relations and was to be included in the general review of state servants' conditions of employment following the establishment of State Owned Enterprises. On this basis it should have been excluded from the Committee's review.
HEALTH
Hospitals Committee
If any licensee or manager of a private hospital or a medical practioner involved in the area is dissatisfied with a requirement of the Minister of Health or an officer of the Health Department, that person may appeal to the Board of Health. The Board of Health shall appoint a hospitals committee to investigate the matter and prepare a report.
Medicines Review Committee
This Committee is established by the Medicines Act 1981, s.10. The membership of six appointed by the Minister of Health, includes one person with wide experience in each of the following realms: the practice of medicine, the practice of pharmacy, the pharmaceutical manufacturing industry and chemistry. One person with wide experience in natural therapy shall be appointed to the committee when it is dealing with the practice of natural therapy.
The Act does not appear to provide for a specific term of membership.
The Committee's functions are to consider objections to recommendations made to the Minister by any committee considering, applications for the Minister's consent to sell or distribute medicines or objections to departmental decisisions affecting the manufacture or sale of medicines.
This Committee, because of the scientific and technical issues inolved, has something in common with bodies such as the Toxic Substances Board and will be considered in stage 3.
Toxic Substances Board
This tribunal was created by the Toxic Substances Act 1979 and its jurisdiction specifically excludes matters which fall within the ambit of the Animal Remedies Board or the Pesticides Board. The Board consists of 11 members each appointed for a term of three years. One member is nominated by each. of the following: the Ministers of Health, Science, Labour, Trade and Industry, Transport and the Environment; the NZMA; the Consumer Council; t Manufacturers' Federation; the Federation of Labour; and the Fir, Service Commission.
The Board's functions are to advise the Minister or the Director-General of Health on the manufacture, importation, sale and storage of toxic substances, and the protection of human health and the environment from the harmful effects of such substances.
The issue of licences for the manufacture, packaging or sale of toxic substances is the responsibility of the medical officer of health and appeals against that officer's decisions are determined by the Administration Division of the High Court.
The Board's responsibility is to advise or recommend to the Minister that any toxic substance be notified by Order in Council. as a deadly poison, a dangerous poison, a standard poison or a harmful substance. In contrast with the Animal Remedies Board and the Pesticides Board, it is not a licensing authority.
Pharmacy Authority
The Pharmaceutical Society advised in March 1986 that both the Pharmacy Authority and the Board of Appeal created by the Pharmacy Act 1970 were being reviewed by the Society and by the Health Department.
INTERNAL AFFAIRS
Racing Authority
The Department of Internal Affairs disagrees with the listing of this authority as a tribunal. The Authority's functions are to promote the economic and financial welfare of horse racing, trotting and greyhound racing. It advises the Minister on racing matters including the number of totalisator licences which should be issued each year. It also adjudicates on disputes arising between codes or between codes and their clubs. The Authority is clearly concerned with the regulation of a major industry and should be considered in that context.
JUSTICE
Abortion Supervisory Committee
The principal functions undertaken by this Committee are (a) the licensing of institutions for the performance of pregnancy terminations, (b) appointing certifying consultants and (c) the provision of counselling services. These responsibilities could be assigned to a court or tribunal of general jurisdiction but the committee also has a range of monitoring, prescribing, recommendatory and administrative functions which appear inseparable from its other duties. While this will be considered further in stage 3 of the review, the Committee's tentative conclusion is to agree with the Department of Justice's opinion that the Committee should be retained. Any proposal for change on such a sensitive political issue could only come from a detailed review requested by the Government.
Copyright Tribunal
This Tribunal meets irregularly (there was a one day meeting on 14.7.86). At present the Act is being reviewed by the Law Reform Division of the Justice Department.
Equal Opportunities Tribunal
This Tribunal which was established by the Human Rights Commission Act 1967 deals with complaints of unlawful discrimination.
Indecent Publications Tribunal
This body which was set up by the Indecent Publications Act 1963 is being considered by the recently established Committee of Inquiry.
Land Valuation Tribunals
These Tribunals were established by the Land Valuation Proceedings Act 1948. There are 20 such bodies. The Department states that they "provide specialist forums for matters where the value to be attributed to land is at issue" and "that any replacement would require similar expertise". It prefers their retention. With regard to valuation issues, the Chairman of the Gisborne Land Valuation Tribunal suggests that "jurisdiction could be undertaken either by Planning Tribunals or an administration division of the District Court".
A number of chairmen refer to the functions under the Land Settlement Promotion and Land Acquisition Act 1952 involving questions concerning the undue aggregation of farm land and-the purchase of farm land by foreigners. The chairmen expect this function to be repealed. The add that the exercise of this jurisdiction is dominated by the chairman of the Tribunal and it seems that if this jurisdiction is retained, it could be exercised by a District Court Judge.
Motor Vehicle Disputes Tribunal
There are three Motor Vehicle Disputes Tribunals based, respectively, in Auckland, Wellington and Christchurch. They are serviced by the Tribunals Division of the Justice Department. The three members of each tribunal are appointed by the Minister of Justice and the length of service appears to be at the Minister's discretion. One member shall be appointed as chairman (in practice a barrister or solicitor) and the other two members shall represent respectively the interests of the licensee and the public.
The Department writes that consideration has been given to the abolition of this Tribunal and for its duties to be taken over by the Small Claims Tribunals. It believes that this is impractical as the Dispute Tribunals have jurisdiction up to $8000 and that they do not enjoy the legal flexibility exercised by Small Claims Tribunals. The transfer of the Disputes Tribunals' functions to the District Court would increase costs.
The three Tribunal chairmen argue for retention on the basis of expertise, consistency, cost and informality.
Planning Tribunals
This important tribunal, established by the Town and Country Planning Act 1977, exercises jurisdiction under that Act and a number of others. See egg the dicussion in the report by A Hearn, QC, Review of the Town and Country Planning Act 1977 (1987).
LABOUR
Shop Trading Hours Commission
This one person Commission decides upon applications from retailers for exemptions from normal trading hours. On the basis of a need for consistency, the Department of Labour considers that the present Commission is preferable to a District Court Judge. It adds that the Labour Department cannot be substituted because of its enforcement responsibilities. This reason should be examined further. The Department initiates enforcement in the District Court. It does not determine breach nor penalty, although its attitude parallels the police in that it suggests that the laying of an information equates with guilt, rather than the allegation of an offence.
Union Membership-Exemption Tribunal
This three member Tribunal which was set up by the Industrial Relations Amendment Act 1985 and continued by the Labour Relations Act 1987 determines applications for exemption from union
FOREST SERVICE
Rural Fire Mediator
The Forest Service believes that the mediator provisions allow "ad hoc palm tree justice" at little cost and that it has proved an acceptable innovation. A mediator is appointed pursuant to the Forest and Rural Fires Act 1977, s.64, by the Minister of Forests in the case of a dispute or a difference relating to rural fire control. Appeals, except on the granting or withholding of fire permits, lie to a District Court.
It is the impression of the Committee that the process, whether or not it conforms to any principle of administration management, works well in practice and there is no reason to disturb it.
TRANSPORT
It is the understanding of the Committee that the progressive deregulation of air, sea and road transport involves a continuing review of the regulatory bodies for which the Ministry has responsibility.
Air Services Licensing-Authority
This is maintained by the Air Services Licensing Act 1983, s.3. The members, appointed on the recommendation of the Minister of Transport, consist of a barrister and solicitor of at least seven years' standing as chairman and two other members. The Authority issues licences for air services and it is an offence to operate an unlicensed service. An application requires details not only of the proposed service but also of the proposed financial structure and the management personnel. The Ministry states that safety and reliability are the Authority's primary concerns. The Act lists a number of specific issues that must be considered (s.20) in granting or revoking a licence.
The Authority may hold a public inquiry if it believes that a licensee, having a dominant position in the market, is eliminating, restricting or deterring competition to the harm of the users of air services. Appeals against decisions of the are to the Administrative Division of the High Court.
The Ministry states that retention of the Authority is desirable to avoid allegations of bias against the Minister or the Department.
Transport Licensing Authorities
Under the Transport Act 1962 three one person transport licensing authorities covering New Zealand have been established. They are appointed by the Minister of Transport for a term of five years. They are responsible for determining applications for transport licences - goods services, rental services, harbour ferry services, passenger services and taxicab services. They are directly involved in the economics of the transport industry.
Until October 1986, for example, they administered the provision which protected the New Zealand Railways from competition for the carriage of goods over more than 150 kilometres.
The Ministry observes that land transport licencing apart from taxicabs, now operates on a qualitative rather than a quantitative basis. The details required in a licence application (s.116) include economic information in addition to information about safety and reliability which the authorities maintain are the prime considerations. Reviews of taxi services in the cities are required every three years. "Need" is the primary basis for the issue of new taxi licences.
WORKS AND DEVELOPMENT
Regional Water Boards
Water and Soil Conservation Tribunal
Soil Conservation Rivers Control Tribunal
The first two Boards are established pursuant to the Water and Soil Conservation Act 1967 and the last by the Soil Conservation and Rivers Control Act 1941.
The Ministry advises that regional water Boards cover New Zealand (apart from Wanganui) and are operated either by the 20 elected catchment Boards or the local territorial authority together with departmental representatives. The Ministry has prepared.a new Water and Soil Conservation Bill but it is not expected to be introduced into Parliament prior to the election.
The Regional Water Boards are responsible for the Acts and apparently appoint the two Tribunals noted above, depending on the issue in question. Considerable clarification on the constitution and powers of the Regional Water Boards and the role of the Tribunals is necessary before a decision is taken on their future.