The Allocation of Power Between Courts, Tribunals and the Executive Government
8. Every year Parliament allocates to public bodies powers to make decisions directly affecting members of the community. The relevant legislation covers a vast range of matters, for instance, minimum standards of public behaviour to be enforced through the criminal law or related processes; rules regulating behaviour .and obligations between individuals who may be strangers (as in some areas of contract and commercial law) or in a close and continuing relationship (as in family law and some aspects of company law); standards of safety; provision for health, education and welfare; and taxation to support public services.
9. Most of this legislation takes for granted the existing decision-making systems, especially within the executive government and the courts. Thus when new criminal offences are created or family law or the law of contract is altered, the new function simply becomes vested in the appropriate part or parts of the existing court system. And if subordinate law making power is to be conferred, the Governor-General in Council or the governing body of the relevant local authority are the likely repositories. Existing tribunals - especially the Planning Tribunal sometimes also have new jurisdiction conferred on them.
10. The picture suggested by the heading to this part of the paper of three distinct categories of bodies is misleading in important respects. Thus there may be different decision-makers within a single court (such as Justices of the Peace within the District Courts) and within the executive (such as the Governor-General, a Minister, and a permanent head). To the contrary, the same individuals may be members of both a court and a tribunal. And there may be interaction - by way of direction, advice or appeal between the work of the different bodies (see para.23 below). Before we take these matters further and to give the broad context we indicate the major subject areas with which tribunals are concerned. We make no other reference to some of them.
Disputes between individuals about rights
11. Powers to decide disputes between individuals about their rights and interests are allocated in some cases allocated to tribunals or special courts rather than or in addition to the general courts. This is so for instance of some disputes about unlawful discrimination, motor vehicle dealer contracts, copyright, tenancy and small claims. The allocation decision is not always a completely clear one for reasons just mentioned: the tribunal might be part of a court and there might be an appeal from its decision to a court; in addition the parties might be able to choose whether to bring the proceedings in a court or tribunal (and the bodies themselves might be able to reallocate a particular matter). For the most part we do not consider these bodies further. The Law Commission's paper on the court structure discusses them and the Economic Development Commission in its December 1987 report on Motor Vehicle Dealers has proposed that the motor vehicle disputes tribunals should be abolished (see also para.48 below).
12. Central government officials might also have initial jurisdiction over issues involving individuals. This is so of many registration and related functions, concerning, for instance, land valuation and registration, companies and other incorporated and similar bodies, and industrial and intellectual property (including new plant varieties). The powers exercised by Court Registrars are of the same type. These powers are distinct from those regularly exercised by public servants in two ways: the named officials exercise them as independent statutory officers without any direction from their senior officers and their Minister; and usually there is a right of appeal to the Courts from the officials' decisions.
13. Appointment, promotion and disciplinary matters in the public sector (including the health and educational services) are dealt with in a way similar to those just mentioned. The initial decision is made by an official or body such as the State Services Commission, again on an independent basis without political direction, and the individual aggrieved can generally appeal (usually to a tribunal or special court rather than to a court of general jurisdiction). This area is subject to fundamental review at the moment and we do not take it further in this report.
Environmental and planning matters
14. Environmental and planning matters often involve disputes between individuals although usually there is a broader public interest which transcends the private interest of the individual disputants. Again, there may well be a challenge to the decision or policy of the local authority which made the decision at first instance. The challenge in this case generally goes to the Planning Tribunal (which also has some original jurisdiction, for instance in mining inquiries, and indeed hears appeals as if the matter had originated before it). Again the division from the other bodies is not complete since sittings of the Tribunal are chaired by a District Court Judge who is appointed as a Planning Judge, and aggrieved parties have a right of appeal on points of law to the High Court. Moreover some planning and environmental matters might be dealt with in the courts, for instance in nuisance actions, criminal prosecutions, and applications for injunctions to require compliance with the law; and judicial review proceedings may challenge planning decisions. And in some cases the central government has a relevant power of decision, perhaps having received a recommendation rather than a binding decision from the Tribunal.
15. The land use control powers just mentioned can involve an economic element. That is more prominent in other licensing functions which will generally include a qualitative or safety element as well. (We have already mentioned some professional and occupational licensing para.3 above.) These functions are various and variously exercised - by the government, tribunals and courts, with rights of appeal -full or limited - in some cases, and with advisory or directive powers in others. Thus the central government licenses international air transport and foreign fishing in the exclusive economic zone (with no statutory right of appeal in either case, but with the possibility of international dispute settlement procedures). It also licenses some domestic fisheries with a limited right of appeal to an appeal authority in one situation, and an advisory role for the Planning Tribunal in another. And the Fisheries Authority has licensing powers in some circumstances (subject to some overall Ministerial controls) and those aggrieved by the decisions have limited rights of appeal to the High Court. In the fishing case the principal explanation for quantitative licensing is that the resource is a limited one and might be exhausted. That is true in a different way of the allocation of broadcasting waves (where similarly there may be relevant international standards). In other cases the argument for quantitative licensing may not be as absolute - consider for instance the argument based on the large economic cost (including overseas reserves) involved in extra television channels, or those based on the orderly export marketing of kiwifruit. The licensing of broadcasting and fishing is considered further in paras 33-44.
Qualitative and social licensing
16. In other areas of licensing (including some with a quantitative element) the central governmental power in respect of particular decisions may be reduced or non-existent - as with internal air transport, road transport and motor .spirits distribution. (Legislation to remove the last is before Parliament.) Special tribunals make the relevant decisions with rights of appeal in some cases with an intermediate appeal to a special tribunal and then to the High Court. In other cases the reasons for licensing will have less to do with scarcity of resources and economic considerations and more to do with social objectives and as well the qualifications of the applicants: consider the licensing of pawnbrokers, second-hand dealers, private investigators and massage parlours. Many of these licensing functions are in fact carried out by the District Court. In some cases there is a right of appeal and in general no governmental powers of decision although the police power of objection may be important.
17. Safety and other qualitative standards are relevant not just to the licensing of individuals but also to the licensing of products, such as animal remedies, pesticides, medicines and toxic substances; or the licensing of premises such as meat packing stations. The first instance decision making takes at least two forms: a member of the executive takes the decision having had advice from an expert committee, or an expert body itself has the power of decision. Court appeals, sometimes general, sometimes on a limited basis, are provided for in some cases. The power of decision is exercisable in the case of toxic substances by Order in Council which declares the substance in issue to be subject to the regulatory regime of the legislation. (See further paras 73-75.)
18. Labour or industrial disputes are another category of dispute between individuals or groups of individuals. Those disputes are rather firmly placed in the first instance in the hands of the specialist Labour Court consisting in many cases of one Judge. In a limited number of matters members nominated by the unions and employers join the Judge. A specially constituted tribunal is also established to deal with applications by those who have a conscientious objection to union membership. The Labour Court now also has exclusive jurisdiction over some matters which previously came within the general jurisdiction of the District Courts and High Court - economic torts arising from strikes and lockouts and judicial review of actions taken under the Labour Relations Act. There are however rights of appeal on questions of law to the Court of Appeal and general rights of appeal in the tort and judicial review cases. The Court in hearing some appeals is to have regard to the special jurisdiction and powers of the Labour Court including its equity and good conscience powers. We do not consider these special bodies further in this paper.
19. Special bodies have also been established to make decisions about other economic matters. The Commerce Commission has jurisdiction over restrictive trade practices and certain types of mergers and takeovers, and to authorise prices for controlled goods and services. (The initial decision to have price control is made by the Government which may have had advice on the matter from the Commission.) The Commission is to have at least one lawyer member and the members are to be qualified by virtue of their knowledge of or experience in industry, commerce, economics, law, accountancy, public administration, or consumer affairs. The Courts have original criminal and civil jurisdiction in respect of certain breaches of the Commerce Act; and those involved can appeal against the Commission's decisions relating to trade practices, mergers and takeovers, and prices to the Administrative Division of the High Court. There is provision for lay members to be added to the court for such appeals. They are to be qualified by virtue of their knowledge or experience in industry, commerce, economics, law or accountancy. The commission also has informational and educational functions, which have been supplemented by the Fair Trading Act 1986.
20. Such additional functions (including law reform ones) are also a feature of the work of the Securities Commission. That Commission has powers of decision, for instance in respect of registered securities, advertisements about securities, and contributory mortgages. It can also make orders exempting persons from compliance with provisions of the Act. Those aggrieved by its decisions can appeal on law only to the High Court.
21. The executive of course has major powers over the economy, through, for instance, controls on imports and exports, and incentives relating to them, or over the banking system, or over air and sea transport. The courts too have a part through the law of contracts and commercial law, and related criminal and regulatory offences.
Disputes with the state about individual rights
22. The foregoing discussion does not cover a large number of statutory public powers to affect the rights or interests of particular individuals consider those relating to the membership of the society (immigration, deportation, citizenship, passports); censorship powers in respect of books, films and most recently video recordings, and the related issue of access to official information; powers to make grants, award compensation and to make social welfare payments; and powers in respect of taxation. We see almost every institutional possibility in respect of these matters. The courts make some of the decisions, sometimes originally and sometimes on appeal (which might be full or limited). Others are made by independent tribunals, some originally, some on appeal. Still others are made within the executive, by the Governor-General, ministers and officials, originally and sometimes on appeal. In some cases those affected will be able to make a choice between the remedies.
23. The basic choice is of course that already indicated - between court, tribunal and the executive government. The material indicates as well that the choice can be more complex, taking account of differences within each body, of overlaps of both people and jurisdiction between them, and of relationships of direction, advice and appeal between the bodies:
(a) within each body, different decision-makers are or may be available - one person or several, a special judge, a judge with additional members, an independent statutory officer ...; e.g. the Labour Court Judge sitting alone or with assessors, the Administrative Division Judge, that Judge with lay members in commerce matters, or the Commissioner of Patents.
(b) by contrast to the division involved in (a), a member of a court .or tribunal might be a member of the other, especially the tribunal member who is required by law to be a Judge or is in fact one ; e.g. the Planning Tribunal Judge and the Taxation Review Authorities respectively.
(c) as with (b) there might be an overlap, but of jurisdiction rather than people; the litigants might be able to have the matter dealt with in one of a number of bodies; those bodies may also be able to control where the matter is considered ; e.g. a small claim relating to a motor vehicle might come within the jurisdiction of a Small Claims Tribunal, a Motor Vehicle Disputes Tribunal, or the courts.
(d) one body may be able to give directions to another affecting the-way, in which that other exercises the power of decision : e.g. the Minister of Broadcasting can give directions to the Broadcasting Tribunal.
(e) one body may give advice or recommendations to another which decides ; e.g. the Commerce Commission to the government on price control.
(f) there might be a right of appeal from one body to another which can vary greatly:
- full consideration as if the matter were being dealt with originally (the Planning Tribunal on appeal from a local body)
- a general appeal (air services licensing appeals to the High Court)
- an appeal as if from the exercise of a discretion (indecent publication appeals to the High Court)
- an appeal on law alone
- an appeal on the ground that the proceedings were conducted in an unfair manner which prejudiced the proceedings (small claims).
24. The reasons or criteria for choice of a particular method of decision-making can be organised under three headings -
(1) the characteristics of the function or power, together with the issues to be resolved and the interests affected;
(2) the qualities and responsibilities of the decision-maker; and
(3) the procedure to be followed.
They can be put more shortly: what is to be done, who is to do it, and how? (See also paras 44-46 and 59-64 of the report of the Committee on Legislative Change (1987).)
(1) The power : the issues and interests
25. How confined is the power? Does it mainly involve the finding of past facts and the application of precise rules to those facts? Or does it require the making of broader judgments or the exercise of wide discretions looking to the future and to elements of public interest? Does it have a high policy making content?
26. The broader the policy element the more appropriate it may be for the matter to be settled by Ministers who are responsible to Parliament, and ultimately to the electorate. Such a political process might be complemented by a tribunal or even a court, for instance, (1) by Ministers determining the general policy by direction and the tribunal applying the policy to particular cases, or (2) by a tribunal or a commission of inquiry having a power to investigate a matter and make recommendations to Ministers who have the power of decision. The latter power of recommendation is to be found for instance in the environmental area. It is most unusual for a recommendatory power to be conferred on a court. In general that is contrary to the constitutional function of a court of deciding. - especially in disputes between the Crown and individuals.
27. A more common procedure will be for Parliament to settle the broad policy and decide that a single or small number of specialist bodies, independent of the executive and with power of decision, are best able to develop and apply the policy consistently, on a country wide basis and, where appropriate, develop it by reference to a changing perception of the public interest. Such a function might be thought better suited to a specialist tribunal with a multidisciplinary and changing membership than to the judges of a court of general jurisdiction. (That is not to deny a role for the courts in respect of questions of law and related matters arising from the exercise of such functions, see para.114 of the report of the Committee on Legislative Change (1987).)
28. The preceding paragraphs look at the matter from the point of view of the state, of those in authority seeing to it that policy is properly elaborated and applied. It is critical as well to consider it from the other end, from the point of view of the individuals affected by the exercise of the power. How important are the individual rights and interests which may be affected by the exercise of the power? Is personal liberty involved? Do the rights justify or require elaborate and careful protections by a formal process supervised and applied by a body which is clearly independent of the government? Against that may be important public interests which suggest that the state should have a substantial or final power of decision. In general however the more serious the consequence of the decision for individual rights and interests (for example in terms of the possibility of imprisonment) the greater the protection for the person affected - in terms of
- the independence of the decision-maker (court or tribunal rather than executive) or the seniority of that person (Minister or even Governor-General rather than officials),
- the procedure to be followed (a right to be heard and to call witnesses etc. rather than no express procedural protections at all),
- the specificity of standards and criteria for decision, and
- rights of appeal and review.
29. A large volume of relatively routine matters might provide a quite different reason for using a special tribunal rather than a general court. In some cases, this tribunal might be a public servant acting as an independent officer and usually subject to a full right of appeal to the Courts. (Consider many registration and intellectual and industrial property functions.) This relates to the third of the general matters noted in para.24 above - the procedure to be followed.
(2) The qualities and responsibilities of the decision-maker.
30. This matter ties back into the characteristics of the issues and the function and, indeed, forward into the procedure. Thus the nature of the issues might require special expertise (which the tribunal members might have on appointment or might acquire by concentrating in that field), possibly across several areas (thereby justifying multimember panels); consider for example the statutory provisions about members of the Indecent Publications Tribunal and the Commerce Commission, and the nature of the decisions to be made about medicines, poisons and pesticides. The issues on the other hand might be such that Judges in courts of general jurisdiction, with the traditional independence and other attributes of that office, are the appropriate people to determine them, or there might be a case for specialisation within the general court. Another possibility, again seen in the Commerce Act, is to add expert members to the general court. A further variation in an appeal context is to limit the issues which a general court can consider. By contrast to the foregoing, the character of the issues and of the function might be such that Ministers should take responsibility. This could be so, for instance, if the policy and public interest components of the decision are significant. They might be such that elected Ministers accountable to the electorate should have the power of decision.
(3) The procedure to be followed.
31. The three categories of decision-makers - courts, tribunals, and the executive - of course have their standard procedures. Those different procedures, it can quickly be seen, are more apt for dealing with some issues than with others. A court process is designed, for example, to resolve, through adversary presentation and testing of evidence and argument, disputes about facts and law. Tribunal procedure is usually less formal, with the law of evidence being relaxed for instance. Tribunals are sometimes expected to take an active inquisitorial role in contrast to a more passive court which is dependent on the parties to bring the relevant material before it. The less structured processes of ministerial decision-making, extending as they can out to the relevant sources of information and opinion (expert and political) in the community, are better able to determine, say, the nature and characteristics of a new taxation regime. Procedures within courts and within tribunals can of course vary greatly, and that is even more true within the executive. The procedures can be more or less formal, more or less speedy and more or less costly. Those considerations may also justify the use or establishment of a tribunal instead of a court. Thus the Small Claims Tribunal was established to deal in an expeditious, informal, private and less costly way with small claims which otherwise come within the regular court jurisdiction. The issues might by contrast be so significant or difficult that a more elaborate and formal process is required.
32: Tribunals are often perceived to be more accessible and less costly and to allow a greater range of individual and public participation. In the courts a party who wishes to be represented usually is required to engage a lawyer. Tribunals frequently operate without the assistance of lawyers and indeed the use of lawyers is prohibited or limited in some tribunals concerned with private law matters in the interests of informality and lower costs.
Examples : broadcasting and fisheries
33. A discussion of the allocation of powers relative to the grant of private broadcasting warrants and the licensing or regulation of fisheries should help make the foregoing more concrete. The discussion does not try to go into the detail of complex legislation and its administration.
34. In respect of broadcasting, a series of decisions has to be made: (1) Who should decide whether there should be a system of licensing of private stations? (2) If there is, who should decide whether there is a need for a particular warrant (either a new one or one actually in existence)? (3) Who, if anyone, should decide on the standards and programme content to be complied with? (4) If there is a need for a warrant, who should decide who should get that warrant? (5) What rules should there be about the renewal, cancellation and transfer of the warrant? (6) Should any of those making those decisions be aided or directed by other bodies in any respect? (7) If any of those decisions is challenged, who should decide the challenge and on what basis?
35. The first matter - whether a licensing scheme should exist - is of course for Parliament. It has to introduce and establish the basic licensing system. The executive in introducing such legislation will of course act on advice; sometimes that may be through a formal commission of inquiry (as twice in the last 20 years). The decision about the need for a particular warrant could be made by Ministers, by the existing (public) broadcasting licensees, by an independent tribunal, or by a court. Ministers could be advised by an independent body such as a commission of inquiry. Standards., could be determined by Parliament, Ministers, a licensee committee, a tribunal or a court or some combination. The decision about who should have the licence could 'also be made by any of the bodies deciding on need. It could also be made by tender or by lot (in each case among qualified applicants, who might as well be obliged to comply with the relevant standards).
36. There are some important distinctions between the quantitative and the qualitative decisions. The first includes decisions about scarce resources - the available frequencies (a matter also partly governed by New Zealand's international obligations) and economic ones (how much of total national resources should be committed to broadcasting . . .). There may as well be questions about the impact of a new warrant on those currently providing the service. As well, social and cultural judgments may have to be made about the need for further media outlets. The second decision is a somewhat more confined one: are the particular applicants qualified and if so which is the best qualified to provide the service? It might be thought that there is a strong case for the first (need) question to be decided by Ministers involved - although that is not to deny the importance of their being informed by a careful independent inquiry. The present legislation indeed envisages the possibility of such a process. The Minister of Broadcasting can refer matters relating to broadcasting to the Broadcasting Tribunal for advice. The Tribunal is also obliged to have regard to the government's general policy relating to broadcasting and to comply with any directions given to it by the Minister. That power of direction is qualified however: the Minister cannot give directions in respect of particular allegations or complaints, or directions that would derogate from the duty of the Tribunal to act judicially. That governmental power then stops short of intervention to direct in favour of or against a particular party: The Tribunal weighing the evidence, the arguments and the criteria would at least decide who is to get the warrant, assuming that a warrant is to be granted. It can be seen that that is a matter in which the Government has less interest, where an independent decision might properly be preferred, and where there is less reason for ministerial accountability through political processes.
37. The list in the Broadcasting Act of the matters to be considered on the qualitative question alone indicates why a multimember special tribunal (with a further power to coopt persons whose qualifications or experience are likely to help the Tribunal in the particular case) has been established and the matter not allocated to a court. They include the extent to which the proposed service is desirable in the public interest (a quantitative matter as well as a qualitative one), the applicant's financial and commercial ability, the likelihood of the applicant carrying on the service satisfactorily, the best use of the frequencies in the public interest, the desirability of avoiding media monopolies, and hours and advertising. On the face of it, the creation of a right of appeal to the High Court from decisions in warrant cases contradicts the allocation of those very broad powers to a specialist body. The appeal is however to the Administrative Division of the Court - the intention no doubt being that that specialist division develop expertise in the broadcasting area -and the appeal is to be heard and determined "as if the decision appealed against had been made in the exercise of a discretion". The Court has indicated that that means that it is not at liberty merely to substitute its own opinion for that of the Tribunal. It must find a wrongful exercise of discretion in that the Tribunal did not apply the right principle or gave no weight or no sufficient weight to relevant considerations.
38. A word should. perhaps be added about tender and lot mentioned in para.35 above. It is the case that scarce public resources are often enough leased or sold to persons who are qualified to make use of or extract them. Those who gain a licence to use public resources through a competitive process may indeed also pay a royalty or a rental. (This is so of fisheries which are to be considered next.) And sometimes lot has been used to select among an excess of qualified applicants. These procedures may recognise that at a certain point a qualitative selection cannot be made among those who meet a basic qualification. For instance, the number of applicants might mean that the process of hearing and comparative consideration of the merits of the applications becomes impracticable.
39. Fisheries might be regulated for several purposes -especially to conserve and manage the stock and promote the taking of the optimal yield, but also for instance to allocate the catch (or the opportunity to take the catch) between different groups of people. Thus priority might be given to those already in the industry or related to them, to the Maori, to people in the particular community, to recreational fishermen, to New Zealanders rather than foreigners, or to citizens of one country rather than another, for reasons which do not relate, at least directly, to conservation or management. others may be disqualified -if for instance they have breached the rules or if in some other way (technical or financial for instance) they are not qualified.
40. The regulation or allocation might first be effected directly by legislation - for instance a prohibition on particular methods of fishing, on fishing in a particular place, on fishing at a certain time of year (all three apply for example in respect of toheroa), or on those who may fish (such as the prohibition on foreign fishing vessels in territorial waters). That legislation might be primary or secondary.
41. Second, the regulation or allocation might be by particular decision, relating to the circumstances of specific situations and cases. That decision might be made within the context of a more general decision about the size of the overall catch or the number and character of the licences. Thus the Minister of Fisheries might decide that one country or its vessels is to have a certain licence for fishing in the exclusive economic zone, having first made the general determination of the total catch or the maximum number of licences. The two decisions (the overall and the allocational) need not be made by the same body or person. Thus in a controlled fishery the Minister fixes the maximum number of licences and the Fisheries Authority chooses among the applicants (with an appeal in respect of the second category of decisions to the High Court). The nature of the issue may affect which decision-maker has a role to play; thus foreign fishing issues may engage international dispute settlement processes, and the Waitangi Tribunal may consider claims relating to Maori fisheries.
42. The various decisions might be controlled by rules or criteria or be conferred in apparently broad terms. Procedural safeguards by way of notice, rights of objection, and rights of hearing might or might not be included. The decision-maker might be independent of government and there might be rights of appeal. The entitlement might be subject to revocation, renewal (and therefore non-renewal), and amendment. The holder of it may or may not be able to transfer it by sale of otherwise. The entitlement might be defined by number of licences (or boat authorities) or by size of catch. It might or might not be subject to the payment of royalties or rentals or to the payment of a capital sum on grant or transfer.
43. The matters just mentioned relate to the character of the individual and other interests involved. Is the individual fishing entitlement to be seen as property rather than a mere licence or privilege? If the former view is the better one, how exclusive is the property? How alienable? Since, to the extent that it is exclusive, the entitlement is in the nature of a monopoly, what return to the Crown (rent or royalty, capital sum on grant or transfer) if any is appropriate, by way of a public participation in the licensee's profits or expected profits? How are existing licences to be seen if a licensing scheme is removed? Is that a taking of property? Or does the focus of those questions inappropriately diminish the more general public interest in conservation and management or in giving a certain priority in the use of the resource. That is to say, the following properties, rights or interests (at least) might be seen to be in competition : the general (or future users) interest in conservation and wise management, and (at least) two present actual or potential users (such as those established and those who wish to enter, Maori and other, New Zealander and other, recreational and other ...). Inextricably entwined with those properties, rights or interests are the kinds of judgments to be made by the decision-makers. They might be open ended; e.g. is a small local industry rather than a large national industry to be developed? Or they might be rather confined : which of two individual applicants for a licence is the better qualified to use that licence? In that case concrete matters such as the vessels and methods to be used, the applicants' financial ability, their previous experience, and related factual matters can be assessed and compared.
44. A similar analysis can be made both of the rights and interests and of the issues involved in the broadcasting case. Those matters in both areas can and, in the Committee's view, certainly should have consequences for the choice of decision-maker and procedure. The discussion so far shows that in part that is so. But it may be that in particular areas the thinking has not been rigorous enough. Is it not the case for instance that the range of rights and interests in the fisheries area have become far too complex (with quotas alongside licences alongside controlled fisheries and conditions) and the systems and processes of decision-making have become incoherent? It is likely as well that the overall system or scheme needs close examination.