Introduction
1. The Minister of Justice has asked the Legislation Advisory Committee to advise him on the system of administrative tribunals in New Zealand. The Committee has divided this task into three.
2. It first considered a large miscellaneous group of appeal bodies, and proposed that many of them could be abolished and their jurisdiction transferred to the District Court. The appeal body usually consists of a District Court Judge or a lawyer, often appointed for the particular case, and sitting either alone or with members or assessors appointed or nominated by the two parties to the appeal. The Committee made the particular recommendations on the grounds that the issues arising in the appeals were issues similar to those regularly dealt with in the courts, that there were no sufficient reasons of expertise for keeping the function in a special or single body, and that it was likely to be administratively more efficient for the matter to be dealt with by an existing court. The contribution expected from the additional members appointed for the occasional case in the jurisdictions in question could equally well be provided in most instances by expert witnesses. The Government has accepted that recommendation and implementing legislation is to be prepared. A list of the bodies affected by that recommendation and decision is attached in Appendix I.
3. The Committee secondly considered a large group of bodies with registration, licensing and disciplinary powers over professions, occupations, trades and activities. They are listed in Appendix II.
4. The first question to be asked about these bodies is whether a registration or licensing regime is needed at all. That raises issues which are predominantly economic and social; and indeed the Government has recently established procedures for a review of the need for some licensing systems.
5. Where such a regime is retained in a particular case, a second question arises about the basic form the regime should take. The Legislation Advisory Committee has a legitimate concern with this aspect of the review and has already considered in various contexts the form of registration and licensing bodies and associated disciplinary provisions: how should the bodies be composed, what procedure should they follow, what powers should they have, and what rights of appeal should there be? See our Report to the Minister of Justice Legislative Change; Guidelines on Process and Content (1987) paras 66-87 and 114-116. The Committee will no doubt return to those matters as the review proceeds.
6. This paper is concerned with a third group of tribunals which are listed in Appendix III. (Appendix IV provides additional information about some of them.) Some, such as the Planning Tribunal, are very important in terms of function and work load, while others are of less significance. The paper begins by stepping back, to consider by what criteria choices are or should be made to allocate functions to tribunals (or to the courts or to the government - since a tribunal choice is a choice not to allocate the function to one of the other two) (paras 8-44). It then raises questions about particular tribunals (paras 46-55), and about the general position (paras 63-82). For reasons indicated it puts some tribunals to one side (e.g. paras 59-62).
7. This paper is to be related to other inquiries including in particular the reference by the Minister of Justice to the Law Commission on the structure of the Courts. That reference requires the Commission to consider the composition, jurisdiction and operation of the courts in New Zealand. Given the various links between courts and tribunals and the question of allocation which this paper addresses, it has been agreed that the two inquiries should so far as possible be kept in step. See e.g. paras 19-21 and appendices D and E of the Law Commission's discussion paper on the Structure of the Courts (December 1987).