The Application of the Criteria
45. We accordingly now move on to ask by reference to the above discussion two related questions - one particular, the other general:
(1) Should particular tribunal jurisdictions (assuming they are retained in essentially their present form) be transferred to another body?
(2) Should general alterations to the present system be made, for instance by establishing a general administrative tribunal, by establishing an Administrative Division of the District Court or by grouping tribunal functions in a smaller number of tribunals?
TRANSFER TRIBUNAL JURISDICTIONS TO ANOTHER BODY?
46. There is a prior question (raised in para.3 above) whether the particular power of decision or regulation should continue in any form. If the answer to that question is positive, the next question is whether the power of decision might be exercised by another existing body. As mentioned in paragraph 2 above, we have already recommended that some powers should be transferred in that way principally to the District Court with the consequential abolition of the tribunal. They might also be exercised solely within the industry or profession in question. The following discussion relates to just some of the tribunals in issue. The questions asked here might be asked of other bodies listed in Appendix III as well. Appendix IV contains brief accounts of the constitution and function of some of those bodies.
47. The question might be asked for instance whether the decisions about the cause of injury and the extent of compensation made by the Accident Compensation Appeal Authority could not equally be made by the regular courts. The courts after all are concerned with determining cause and assessing damages. The argument to the contrary is that the members of the Authority gain .a detailed understanding of the relevant medical conditions and are able to maintain consistency on that and other recurring matters throughout the country. The power is of a full determination on the merits.
48. What is the argument for maintaining a separate three member tribunal to deal with disputes about the sales of motor vehicles involving less than $3,000, or more if the parties agree? Two of the members are appointed to ,represent the interests of dealers and of consumers respectively and presumably have and develop, along with their chairman (in practice a lawyer), expertise in the area. Lawyers are not allowed to represent the parties and the Tribunal is not bound by the rules of evidence. Those provisions emphasise expertise, low cost, and informality. On the other hand the parties have a general right of appeal to a District Court Judge (limited to questions of law if the amount in dispute does not exceed $500) whose decision is final. (The extent of the appeal right is to be compared with the very narrow one in the Small Claims Act mentioned at the end of para 23f.) This jurisdiction overlaps that of the general courts and raises issues about liability for breach of contract and about damages with which those courts commonly deal.
49. The Deportation Review Tribunal hears appeals from residents whose deportation the Minister of Immigration has ordered because within specified periods of their arriving in New Zealand they commit certain criminal offences. The Tribunal, chaired by a lawyer, in practice includes people with relevant experience of the immigrant community and immigration administration. They are also in a position to ensure a consistent application of the appeal function throughout New Zealand, and, as appropriate, the development of relevant policies. They may moreover be in the position of questioning in some way the decisions taken by the court of general jurisdiction which convicted and sentenced the appellant. On the other hand, the task they carry out is very much like that of the sentencing judge in a serious matter. So the Act requires that they have regard to the age, length of residence, and personal and domestic circumstances and work record of the appellant, the nature of the offences committed, and the interests of the appellant's family. And they may quash the deportation order if they are satisfied deportation would be unjust or unduly harsh and that the appellant's remaining in New Zealand would not be contrary to the public interest. Might not those judgments be made by a High Court Judge on appeal from the Minister? Parliament has already moved partly down that path by providing for appeals to the Administrative Division of the High Court from Ministerial deportation decisions based on terrorism.
50. The Taxation Review Authorities are District Court Judges or barristers and solicitors of 7 years practice. (In fact the Authorities appointed are District Court Judges and we have already recommended that that should be a statutory requirement.) They are appointed for a term of up to 7 years and can be dismissed only for cause. Their function is to sit as a judicial authority for hearing and determining objections to certain tax or duty assessments and decisions of the Commissioner of Inland Revenue. The Income Tax Act provides for a large amount of concurrent jurisdiction between the Authority and the High Court and there are rights of appeal from decisions of the Authority to the Court. The issues are issues of law, fact and discretion regularly decided by the courts, and the processes of hearing presumably are essentially the same except that persons other than lawyers can and do appear before the authority which, in addition, sits in private. Until 1960 Magistrates dealt with objections to assessments. The arguments for the special tribunal are presumably arguments of expertise, consistency of treatment and perhaps informality and cost.
51. The Copyright Tribunal of three members including a lawyer chairman has powers in respect of licence schemes (those refused licences can apply) and licences for diffusion services. The latter jurisdiction may include the determination of royalties. The functions are similar to those in the Patents Act relating to compulsory licences where the powers are exercised by the Commissioner of Patents and on appeal by the High Court and to those of the Commerce Commission relating to wrongful refusal to trade and price determinations. Is there any justification for the separate Tribunal (which we understand has sat only twice)?
52. The Clean Air Act 1972 suggests the reverse question. The Act gives those aggrieved by decisions of the Director-General of Health relating to clean air requirements a right to appeal to the High Court. The appeal is heard in the Administrative Division by a Judge and two additional members who are chosen from a panel of persons approved by the Minister of Justice after consultation with the Minister of Health. The question arises whether this jurisdiction relating to environmental quality should not be dealt with along with the other environmental and planning matters. (See further paras 72-75 below.)
53. Under the Meat Act 1981, the Minister of Agriculture has powers to direct certain slaughterhouses to receive stock for slaughter and to collect hides, wool and pelts in a common pool. The Minister also has the power to decide disputes between meat packing and slaughterhouses about the supply of meat. Those affected can appeal against such a direction or decision to a committee consisting of a District Court Judge and nominated assessors. The first question is whether the powers should be vested in the minister in any event. If they are, might not the appeal be to the District Court? What function do the assessors perform?
54. The Equal Opportunities Tribunal was established to make decisions on complaints of unlawful discrimination and original jurisdiction was not conferred on the courts on the basis that an expert input into such matters was required (consider the provision for the appointment of members, to sit with a lawyer who presides, on the basis of their knowledge and experience), that the decisions are to be made according to equity, good conscience, and the substantial merits of the cases, and that the consistent application and development of the law required a single body. On the other hand, the High Court can share in certain circumstances in the exercise of that original jurisdiction, and its Administrative Division (consisting of a High Court Judge and two members from the Tribunal panel) hears appeals from the Tribunal and, when issues of fact are involved, does it in general by way of an actual rehearing of the evidence. In fact the very, large" proportion of complaints is dealt with by the conciliation processes of the Human Rights Commission and the Race Relations Conciliator. The rarity of the cases heard by the Tribunal means that there is little build up of expertise by its individual members.
55. The above questions are by no means exhaustive of the possibility of transferring tribunal jurisdiction to the courts (or in reverse). They are in part designed to provoke thinking about the way in which other particular powers should be conferred and allocated. We have the impression that some allocations might be improved by a more careful examination at this time. Answers to the questions about particular tribunals relate as well to the broader framework of the system and it is to that that we now turn.
A SYSTEM FOR ADMINISTRATIVE TRIBUNALS?
56. The word "system" is of course pretentious and may suggest that a great range of bodies with an almost infinite variety of functions can be brought within a procrustean bed. That cannot be so. Separate bodies have been established for particular reasons or a particular mix of reasons. Those reasons, if still valid, may continue to require distinct institutions or distinct arrangements. On the other hand, the relevant decisions have usually been made with greater attention being given to the particular situation than to the overall one. As a result over time inconsistencies, or at least apparent inconsistencies, can arise (e.g. paras 17 and 52 above), and the need or possible need for the development of greater order and system may never be addressed.
57. As already mentioned, tribunals might be grouped or organised or related in different ways -
(1) they might be "left as they are on the basis that the reasons for creating them are still valid;
(2) some of the functions might be moved into the High Court (especially the Administrative Division), into the District Court (perhaps with an Administrative Division of that Court being established), or into an existing tribunal;
(3) some of the tribunals might be grouped together producing a smaller number of stronger tribunals;
(4) most, if not all, might be brought within a single tribunal.
Some of these steps, - e.g. (2) and (3) - might be taken together. The second builds on the 1968 decision to establish an Administrative Division of the High Court, our earlier recommendations to replace appeal tribunals by appeal to the District Court or to a District Court Judge, and perhaps on the fact that a significant number of District Court Judges already operate essentially separately as administrative tribunal judges. The fourth suggestion arises from the establishment in Australia, Victoria and South Australia of an Administrative Appeals Tribunal.
58. The discussion so far leads us to the conclusion that we should not, at least at this stage, adopt the first view. Even if the original reasons for the particular body were valid at the time it was established, that may no longer be so, later inconsistent decisions may have been taken, and in any event from time to time an overall view is required. The second possibility arises when particular jurisdictions are examined (as in paras 46-54 above), subject to one qualification. That qualification is the formation of an Administrative Division of the District Court. That is a .more general matter which can be taken up with the other two possibilities - (3) and (4) in the above list. First, however, it is convenient to put a number of tribunals to one side.
59. The government has set up an inquiry into the area of law which is principally administered by the various censorship bodies established under the indecent publications, films, video recordings and related legislation. We do of course have an interest in the form, procedures and control of such bodies. Any contribution by us on those matters at this stage is however premature, as would be any suggestion about how they might be reorganised, or related to each other and to the courts.
60. We have already referred briefly to the Commerce Commission and the Securities Commission (paras 19, 20 and 51). Given the functions (particularly those which run beyond the decisional), the need for a consistent approach, and the scale of their operations, the only specific matters that we see arising for us at this stage relate to the possibility of particular areas of power being transferred to one or other of the Commissions (e.g. para 51 above) or away from it, and the arrangements for appeals (e.g. para 19 above).
61. We have also discussed the Broadcasting Tribunal and the existing and possible arrangements for exercise of the powers of decision that might arise in broadcasting matters (para 33-38). Again we can note that questions can arise about the characteristics of the appeal arrangements (for example in respect of the finality of the Administrative Division's decisions and its power to refer the matter back to the Broadcasting Tribunal).
62. The Small Claims Tribunals and Motor Vehicle Disputes Tribunal have also already been briefly mentioned (paras 11, 23(c) and 48). They, together with the Tenancy Tribunals, which are also concerned with private disputes, are perhaps best to be seen as part of the District Court to which they are linked in various ways.
An Administrative Division of the District Court?
63. The possibility of establishing an Administrative Division of the District Court is suggested by the analogy of the Administrative Division of the High Court, the reasons that led to its establishment, and the fact that a significant amount of tribunal work is already done by District Court Judges. To take the last point first, the equivalent of 9 or 10 District Court Judges - or about 10% of the strength of the District Court - is committed to tribunal work, principally the Planning Tribunal, Taxation Review Authorities, Social Security Appeal Authority, Accident Compensation Appeal Authority and the Licensing Control Commission. District Court Judges also sit in Land Valuation Tribunals, as Transport Licensing and Charges Appeal Authorities, and as Chairman of the Indecent Publications Tribunal, and in many of the bodies listed in Appendix I. In some cases such membership is required by law, in others it is a matter of practice (perhaps now an expected practice). In some cases the bodies are administered by the Tribunals Division of the Department of Justice, in others by the relevant District Court, and in others by a special secretariat. The Judge sits alone in some cases. In others there will be additional members, usually with relevant expertise. The procedural rules will often differ from those applying in ordinary District Court matters : the rules of evidence used by courts are likely not to apply, the tribunal will be able to determine, within broad limits, its procedures, parties might be represented by persons other than lawyers, and it is more likely that the tribunal will sit in private. Appeal arrangements might also vary.
64. What, it might be asked, are the advantages of bringing together these jurisdictions into a single Division? The question might be extended to include jurisdictions not currently exercised by District Court Judges but comparable to the above matters. The possible advantages include
(1) The build up within that group of judges of expertise in administrative adjudication and its processes.
(2) The greater strength that can come from a larger group working together and exchanging ideas and experience; this and other points are important given the significance of the powers of decision we are concerned with. Attention is often called to the major importance and impact of some tribunal functions.
(3) The moderating of the views of the single person tribunal who without colleagues might adopt policies which are not considered consistent with the purpose of the legislation.
(4) A related or in some circumstances a contrasting point, avoiding or at least reducing the danger of what is referred to as agency capture, the situation in which the body in question develops too close a relationship with the industry subject to regulation.
(5) The more flexible matching of judicial manpower to the needs of the various jurisdictions as they fluctuate; this could include as well any lay members who were to sit in particular areas.
(6) The more efficient administrative servicing that might arise through a single registry.
A separate general administrative tribunal?
65. All those arguments might also be made for a separate general administrative tribunal. The arguments that distinguish between the two proposals relate to the advantages and disadvantages of having the jurisdictions in question within a court - or to be more precise within a specialised division of the court. In brief the advantages are in terms of the authority, ability, experience and status of the courts and their members. The courts have a clearly established and recognised independent place in our constitutional arrangements. They do justice according to law. They resolve disputes between the citizen and the state and they control excesses of public power.
66. But, to return to the earlier discussion of the criteria for allocation, the legislation has not vested the powers of decision with which we are concerned in the courts. Rather they have been given to a special, separate body (even if composed of a District Court Judge). Parliament has done this (if we can make a general assumption) for reasons of expertise, consistency, development of policy, informality, expedition and cost - or some of them. Is the nature of the functions (or at least some of them) not such that they are quite distinct from the work of the District Courts? Is there no real affinity? Might not the ambience of the one body inappropriately affect the operation of the other? Will not the advantages of tribunals that led to their separate establishment be lost by a wholesale movement of jurisdiction into the ordinary courts? Some of these matters are not very tangible, but cumulatively they have often led to the establishment of separate tribunals operating differently from the courts.
67. The proponents of a Division would respond to the points just made by contending that the Division would, as a separate body, incorporate as appropriate those advantages of tribunals while still retaining the mana of the general Court to which it also belongs. It would get the best of both worlds - of the general court and the special tribunal jurisdiction. The argument is in part to be tested against the experience of the Administrative Division of the High Court. To what extent have the expectations of those reforms been realised?
68. A separate general tribunal, it might be argued, faces other difficulties. As a new body it would have to acquire status and authority (some would of course arrive with its original members). Its place in the general order of things would not be clear. Its independence from the executive and its relation to the court system might also be uncertain. And is it really the case that the great variety of business can conveniently and sensibly be brought within a single body? Would the apparent unity of the jurisdiction - say over accident compensation, land valuation, the licensing of pesticides, and the grant of fishing quotas -be only apparent and not real?
69. The references to particular powers of decision in that last question help remind us that the matters we are considering depend not just on the general arguments about authority, responsibility and expertise but also on the character of the issues to be decided. They provide a convenient lead into the third general possibility raised earlier - a number of groupings of at least some of the tribunals and jurisdictions this paper is concerned with. Each grouping could constitute a tribunal. Another possibility would be for each grouping to be a division of a general tribunal.
70. At least five tribunals are in the benefit and welfare area : the Accident Compensation Appeal Authority, the Legal Aid Appeal Authority, the Social Security Appeal Authority, the Tertiary Assistance Grants Appeal Authority and the War Pensions Appeal Board. They are concerned with question of eligibility (including medical or financial qualifications or both) and with the amount of the entitlement (or in some cases the correct exercise of discretion). As the names of the bodies indicate, they all hear appeals, in general from departmental officials. The bodies are variously composed . the Accident Compensation Appeal Authority consists of one or more barristers and solicitors of 7 years practice (in fact at the moment District Court Judges) and the tertiary grants body is one person (no qualifications being specified). The others are multimember : the legal aid body consists of 7 barristers or solicitors of 7 years practice (with a quorum of 3); the social security body consists of 3 persons (with no qualifications specified and a quorum of 2); and each war pensions appeal board consists of no more than 4 members, 2 of whom are doctors (one appointed on the nomination of the RSA). Some war pensions matters go on appeal not to the appeal board but to the Social Security Appeal Authority, the District Court, or the High Court.
71. The legal aid and social security decisions are subject to appeal as of right on points of law to the Administrative Division of the High Court; and accident compensation decisions with leave of the Authority or Court on law or more broadly. Questions of law can be taken on further appeal to the Court of Appeal with the leave of that Court or the High Court. There is no provision for appeal from the tertiary grants and war pensions appeal bodies (although under the war pensions legislation some matters are dealt with by the Social Security Appeal Authority and are subject to its appeal system - including, as just noted, the High Court and Court of Appeal). The High Court may of course become involved with decisions of those bodies through applications for judicial review.
72. The varying composition and appeal arrangements and the procedures which also also vary suggest two conflicting questions Do they mean that the jurisdictions have inherently different features which make it desirable to keep them apart? Or have those differences (or most of them) arisen from different decisions being taken at different times with no or little attempt being made to produce consistency or combination of function where that appears desirable? Another possible way of handling one of the functions was raised earlier (para.47).
73. Another group of decision-making powers is concerned with planning, environmental and scientific matters: clean air appeals (para.52 above), land rating classification, land valuation, and planning (the Planning Tribunal already has jurisdiction under a wide range of statutes); and animal remedies, medicines, pesticides and toxic substances. The group of scientific matters is included here for two reasons. The first is to call attention to the different ways in which the first instance decision is made (generally to approve or not the substance or technique for public use and related licensing matters). Legislation administered by the Health Department (Medicines Act and Toxic Substances Act) retains that power of decision within the executive and generally provides that the Minister is to be advised by an expert body in the exercise of the power. (There is a partial exception in the Medicines Act in that some licensing decisions made by the Director-General of Health relating to the manufacture and distribution of medicines are subject to appeal to the Medicines Review Committee and then, on limited grounds`, to the High Court. That Committee has however only an advisory function in respect of the principal ministerial power to consent to the distribution of a medicine.) The legislation for which the ministry of Agriculture and Fisheries is responsible by contrast gives the power to an independent body : the Animal Remedies Board and the Pesticides Board. The question is whether there is any good reason now for this difference and, if not, whether one or other is to be preferred.
74. The second question arising from these provisions relates to the appeal arrangements. Where an appeal is provided for-from the Minister of Health, the Director-General of Health, Medical Officers of Health and the Medicines Review Committee under the Medicines and Toxic Substances Acts and from the Animal Remedies and Pesticides Boards - all four Acts now provide for the appeal to be dealt with by the Administrative Division of the High Court. The Animal Remedies Act - as amended in 1969, the year after the Division was established - differs in two ways from the other three Acts. The appeal is to be determined by the Division and two assessors (named by the board and the appellant respectively). And no direction is given to the Court about the way it is to decide the matter. By contrast the other 3 Acts provide for decision by the Judge alone and all limit the grounds for appeal to non-compliance with the legislation and unreasonableness. That limit presumably is in recognition of the possibly technical character of the decision. The 3 Acts - but not the Animal Remedies Act - provide for a further appeal on law to the Court of Appeal with the leave of that Court or the High Court. None of them expressly confers power on the High Court to refer the matter back to the original decision maker. (The Acts are notable for the fact that, with the possible exception of the Medicines Act only persons who carry out or are applying to carry out the regulated activity have -rights of appeal. The wider public interest is presumably to be protected by the relevant department, committee or board.)
75. So far as appeals under these 4 Acts are concerned the following questions arise : is there any reason why the legislation should not deal with them consistently; is there sufficient reason for the legislature to limit the appeal, at least if the composition of the appeal body and its procedures are more apt to a careful examination of the technical and scientific judgments involved; and would this jurisdiction better belong with the Planning Tribunal or an expanded version of it? The last question is asked because that body does from time to time make decisions with scientific content and could have appropriately qualified people within its membership.
76. The larger question raised within this grouping is whether the land rating classification and land valuation matters should tie exercised within an expanded Planning Tribunal. There are also questions, raised for instance in the Review of the Town and Country Planning Act 1977 (1987) Section VI by A. Hearn QC, whether the Tribunal should have enforcement powers (by way of prosecution and injunction) and wider declaratory functions. And foreshadowed changes in protected area, mining, historic places and water legislation may also affect the jurisdiction of the Tribunal. All these matters are important but they probably do not affect in a substantial way the overall arrangements relating to the constitutional position of the Tribunal:
77. Next are a group of powers in the taxation area. The Taxation Review Authority (mentioned in para.50 above) is the most significant. There are four separate authorities which appear barely to exist : the cooperative dairy, milk marketing and pig marketing tax appeal authorities and the overtime and shift work authority. The Inland Revenue Department agrees that these functions should be taken over by the Taxation Review Authority. Some of the processes in customs legislation (including those relating to the newly established -mediator) might also be examined from that point of view. The close association of these functions with the court system raises in a particular context, it might be thought, the Administrative Division possibility discussed earlier (paras 63-64).
78. A large number of bodies are concerned with licensing - sometimes for qualitative reasons (relating especially to the standards of the applicant) and sometimes, as well, for quantitative ones (relating to the protection of a scarce resource or of existing operators). We can put liquor licensing to one side since that is being dealt with separately. Legislation to abolish the motor spirits distribution licensing scheme has also been introduced. Some licensing, we have already noted (para.15) belongs with Ministers. And much of this area, is the subject of a separate review (para.3 above). There remain nevertheless a significant number of bodies and functions for mention now. The licensing of private investigators is almost the only qualitative licensing system for a social purpose and based on personal fitness not administered in the District Court. Is there any reason why it shouldn't be? (In respect of similar areas such as second hand dealers, pawnbrokers, and massage parlours two further questions can be asked . is licensing needed at all (might not a power of disqualification be enough)? And, if it is, might not the licensing power be exercised by the police with an appeal, in the event of refusal, to the courts?)
79. Another area of licensing which might be transferred to an existing general institution is shop trading hours. A justification over the past 30 years for a single nationwide body deciding whether shops can open on the weekends (more recently on Sundays) has been consistency of treatment; the national industrial award process has also been seen by some as a significant factor. Is there now an argument for saying that this matter is better assessed in a local context by local bodies with perhaps an appeal as in other planning matters to the Planning Tribunal?
80. One group of bodies licenses primary produce exporters including (1) Berryfruit Marketing Licensing Authority, (2) Game Industry Board, (3) Kiwifruit Marketing Licensing Authority, (4) Fishing Industry Board, (5) Horticulture Export Authority. In addition to their licensing function, the bodies may exercise promotional and other important responsibilities. That is to say a reallocation of the licensing function would not necessarily remove the need for the body. The only question we wish to raise at this stage relates to the appeal system. Appeals from the decisions of (1), (2), and (5) (and also the Poultry Board which registers poultry hatcheries and grants entitlement licences for those with more than 100 laying birds) go to an independent arbitrator who is to be a barrister and solicitor nominated by the President of the New Zealand Law Society (except for (2) where the nomination is by the Minister). The fisheries appeal (4) is to the Administrative Division of the High court sitting with two assessors and the kiwifruit appeal (3) to an Appeal Tribunal consisting of a barrister or solicitor nominated by the Law Society President and two members nominated by the authority and by the appellant. In (1), (2), (3) and (5) there may be a further appeal to the Administrative Division of the High Court on a point of law. Is there good reason for these differences? Might consideration be given at least to the first appeal being consolidated in one place? Is there some analogy to the first set of recommendations we made (para.2 and appendix I)?
81. There is a group of bodies concerned with transport licensing the Air Services Licensing Authority, the Transport Licensing Authorities and Appeal Authority and the Harbour Ferry Service Licensing Authority. The Transport Charges Appeal Authority hears appeals from pricing decisions of local authorities and the Secretary for Transport. Might that function be appropriately exercised by the Commerce Commission which has jurisdiction over other pricing matters? The Public and Administrative Law Reform Committee proposed that the appellate function in the licensing area should be transferred to the Administrative Division of the High Court. For air services that step was taken in 1983 (the only issues now are qualitative). For road services where a quantitative element remains, is the appropriate body now the Commerce Commission, given its broad responsibility for judging competition or the Administrative Division of the High Court sitting with additional members (as in Commerce Commission appeals)?
82. In the fisheries licensing area, as already indicated the law provides a complex range of regimes and decision-making bodies. It is not possible, it appears to us, to produce greater system and order by looking only at those bodies. The relevant substantive policy must first be worked out.
83. It may be that others of the functions exercised by the bodies included in Appendices III and IV could also be grouped or transferred to existing tribunals or courts. We welcome proposals to that effect. In some cases, the bodies in question have functions additional to the decision-making ones with which we are concerened, and that may be a good reason for their retention. And it may be that as a more general pattern of administrative tribunals appears the allocation of some of the powers of decision-making can be more readily determined.