The Background to the Inquiry
13. The Minister of Justice asked the Legislation Advisory Committee to advise him on the system of administrative tribunals in New Zealand. The Committee divided this task into three.
14. It first examined a large miscellaneous group of appeal bodies, and recommended that many of them could be abolished and their jurisdiction transferred to the District Courts. Those appeal bodies usually consist 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 those 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, that most of the bodies handled few cases, 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 those recommendations and implementing legislation is to be prepared. Appendix 1 lists the bodies affected by those recommendations and that decision. The Committee gives additional reasons for one of the recommendations - that relating to the Deportation Review Tribunal - in para 90 below.
15. The Committee secondly considered a large group of bodies with registration, licensing and disciplinary powers over professions, occupations, trades and activities. (Some were listed in appendix II to its discussion paper issued in January 1988.)
16. 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 established procedures for a review of the need for some licensing systems and we mention other, particular reviews of licensing later (e.g. paras 136, 137, 139). See also the discussion paper by the Economic Development Commission, A Generic Approach to the Reform of Occupational Regulation (December 1988) and the Victorian Law Reform Commission and Regulation Review Unit, Principles for Occupational Regulation (June 1988).
17. Where a licensing regime is retained or introduced, the next question is about its basic form. The Legislation Advisory Committee has a legitimate concern with this aspect of the reviews and it has in fact 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 reviews of occupational and other licensing proceed.
18. This Report is concerned with a third group of tribunals which are listed in Appendix 2. The Report's introductory paragraphs give some flavour of them and their functions, and we expand on that in the next section. (See as well Appendix IV to the discussion paper.)
19. The Report is based on the growing experience of the role and functioning of administrative tribunals in our system of government. We have drawn freely on the New Zealand experience as indicated by legislation, by annual reports of relevant departments and bodies, by reported decisions of the tribunals, by the responses to a questionnaire sent 3 years ago by the Public and Administrative Law Reform Committee to Departments responsible for administering tribunals and later to the tribunals themselves, by our own knowledge of their operation, by the valuable submissions we have had from those listed in Appendix 5 to our discussion paper on Administrative Tribunals issued in January 1988, and by discussions with some of those who made submissions and others with relevant experience. There is also much relevant experience and writing in Australia, the United Kingdom and Canada which we have used (in most cases without specific reference). Appendix 6 provides a brief note of relevant literature.
20. The recommendations we make are also to be related to the reference by the Minister of Justice to the Law Commission on the structure of the Courts on which the Commission is about to report. 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 recommendations about allocation which this Report makes, the two inquiries have so far as possible been kept in step. See e.g. paras 19-21 of and appendices D and E to the Law Commission's discussion paper on the Structure of the Courts (December 1987).