Introduction
"Administrative tribunals have an essential role in our system of administration and justice. Each year they make a great number of decisions, some of major importance affecting many people. In significant areas of the lives of New Zealanders they strike the balance between private right and public interest"
2. The Minister of Justice introduced our discussion paper on Administrative Tribunals in that way. Some facts and figures help document the points he makes. Thus this report considers more than 50 distinct tribunals. The Committee has already reported (as mentioned later) on 24 others. In addition the discussion paper noted about 40 occupational registration and disciplinary bodies and put them to one side for the reasons set out in paras 15-17 of this Report.
3. Those figures are perhaps not as significant as the numbers of cases handled and their character. Thus tribunals in the welfare and benefits area handled about 420 appeals in 1987 - a figure which is comparable with the civil judgments given by District Court Judges. And the sitting days of the Planning Tribunal and the Licensing Control Commission each year total almost 500 - or roughly half the numbers of days District Court Judges preside over criminal jury trials.
4. The business of tribunals includes the grant of a third television warrant, planning permission in respect of multimillion dollar development projects, the quashing of Ministerial orders to deport migrants convicted of serious crimes, the allocation of scarce fisheries, the determination of whether a film can be publicly shown, the entitlement of 300 New Zealanders to social security benefits and war pensions, over 3000 applications for transport licences, and 15,000 disputes between individuals about small claims and residential tenancies.
5. Some of that business is original - that of the Broadcasting Tribunal, the Small Claims Tribunals and Residential Tenancy Tribunals, for instance. Much of the remainder is appellate. Some of the appeals are from departmental or Ministerial decisions (some will have already have been the subject of informal or formal review within the department), some from local government, and others from independent tribunals. In some cases there will have been a hearing at the earlier stage, in others not.
6. The origin of some tribunal business in departmental decisions helps make three points. (1) There is not always a clear line between matters which should be administered within the executive and those which belong to an independent tribunal. (2) In such areas it is however the norm for the particular power of decision to be independent of the Minister. A related point is that the first decision maker will often follow a summary, administrative process, the second a judicial one. (Legal aid provides an instance.) In that sense the power is not a usual departmental one for which the Minister is responsible. (3) The quality of that first instance decision making is of great importance. Only a tiny proportion of those first instance decisions is challenged. In 1987, 138,000 ACC claims generated about twice that many decisions (on both eligibility and amount), about 7400 reviews, 4800 of which were resolved to the client's satisfaction and 266 appeals of which 77 were successful. That is to say about 1 in 1000 of the original decisions got to that appeal level and a much smaller number to the courts. The proportion of matters being appealed in the social security areas is even smaller.
7. In some cases Parliament has given only the broadest direction to the decision makers - as with broadcasting and some transport licensing where "public interest" is the guiding criterion, while in others the rules may be written much more tightly - as with some entitlements under the social security and accident compensation legislation.
8. In most tribunals a public authority (or at least a body with statutory and official status) is involved as a party or in a related way, but, as the tenancy and small claims and much licensing activity shows, the disputes can be between private individuals. Some of those characteristics of tribunals are developed further in this report.
9. As the broadcasting, fisheries, transport and residential tenancy examples show us, we are preparing this Report at a time of great change in many relevant substantive policies. We note some of these changes later. We recognise that they will very probably affect the implementation of the proposals in this Report. The proposals will nevertheless, we trust, be of assistance to the various processes of review, in two ways - one more general, the other more specific.
10. The general assistance is to be found in the proposals we make about the criteria for the allocation of powers of decision and about the institutional forms that the powers may take. The process of establishing methods of decision-making can be made more thorough and systematic than it has been. The specific assistance is in the concrete proposals we make for the reshaping of our system of tribunals and for some particular reallocation of powers of decision.
11. The report
(1) sets out the background of the inquiry and describes the procedure we have followed (paras 13-20)
(2) discusses the functions of tribunals (paras 21-36)
(3) proposes the criteria by which choices should be made in the allocation of functions to tribunals, to courts, or to government agencies (paras 37-85)
(4) proposes the transfer of certain powers of decision (paras 86-97) and
(5) makes general recommendations for the reorganisation of our system of administrative tribunals (paras 98-140).
12. The Report does this against the background of our general constitutional system. It is concerned with central questions about the allocation of public power - between Ministers (and other politically responsible persons and bodies), courts and tribunals. Parliament has long recognised that for reasons of independence and expertise and fair adjudicatory procedures some public powers should be conferred on bodies outside the executive. Sometimes for reasons of expertise, informality, expedition and cost the powers should be conferred on a special tribunal rather than on a court.