LEGISLATION ADVISORY COMMITTEE

Legislation Advisory Committee Report No. 3 Administrative Tribunals

The Allocation of Power Between Courts, Tribunals and the Executive Government

21. 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.

22. 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.

23. The picture suggested by the heading to this section of the Report 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 chief executive). By contrast, the same individual may be a member 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. Thus we have already noticed the extensive tribunal role in hearing appeals from departmental decisions (paras S and 6). Before we take these matters further and to give the broad context, we indicate the major subject areas with which administrative tribunals are concerned.

The functions of tribunals

Disputes between individuals about rights

24. Powers to decide disputes between individuals about their rights and interests are allocated in some cases 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 mentioned in para 23: the tribunal might be part of a court; it might be made up of members of a court; there might be an appeal from its decision to a court; 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 since they are essentially concerned with private law matters in dispute.between individuals. They do not raise the administrative and public law issues with which we are concerned.

25. 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 registration, companies and other 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 superior officers and their Minister; and usually there is a right of appeal to the Courts from the officials' decisions. The model of initial decision by an official with the matter getting to court only if that decision is challenged might be used more widely in respect of high volume jurisdictions of a routine character which rarely cause controversy. The annual renewals of many licences might be dealt with in this way (e.g. paras 29, 135). We later make a relevant general recommendation (para 55).

26. While some state sector appointment, promotion and disciplinary matters are still dealt with in that way with any challenge to the original decision being handled in a tribunal, most have now become subject to general industrial relations legislation either through the process of the formation of state enterprises or the State Sector Act 1988 (see para 31). The remedies, if any, for an aggrieved employee are to be found in that general law, although the 1988 Act does require the chief executive of each department to establish internal grievance procedures. Since the remaining principal special tribunals - those in the education area - are also under review at the moment we make no further reference to this category.

Environmental and planning matters

27. 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. Any challenge to the decision or policy of the local authority which made the decision at first instance 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 separation from the general courts and central government 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. This three way distribution indicates that some matters are for the general courts of law, others for the expert tribunal, and yet others for the elected representatives ? and governments (local as well as central) with their political responsibility. It is the view of the Legislation Advisory Committee that principle and criteria should govern such allocations.

Quantitative licensing

28. 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 and put to one side some professional and occupational licensing : paras 15-17 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 particular licensing powers in some circumstances (subject to some overall Ministerial determinations and controls); in that case those aggrieved by the decisions have limited rights of appeal to the High Court. In the case of fishing the principal justification for quantitative licensing is that the resource is a limited one and might be exhausted. That has been true in a different way of the allocation of the broadcasting spectrum (where similarly there may be relevant international standards). In other cases the justification for quantitative licensing may not be as absolute - consider for instance the argument based on the large economic cost involved in the licensing of extra television channels, or those based on the need for orderly export marketing of horticultural produce. The licensing of fishing and broadcasting is considered further in paras 71-85.

Qualitative and social licensing

29. In other areas of licensing (including some with a quantitative element) the central governmental involvement in respect of particular decisions may be reduced or non-existent - as with internal air transport and road transport. .Special tribunals make the relevant decisions. Usually there are rights of appeal - in some cases 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 the related qualifications of the applicants: consider the licensing of pawnbrokers, second-hand dealers, private investigators and massage parlours.' Some 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. As already indicated, we make a relevant recommendation later (para 55).

30. 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. That appears to be an exceptional provision. (See also para 131.)

Labour disputes

31. Labour or industrial disputes are another category of dispute between individuals or groups of individuals. Those disputes are 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 under very recently reviewed legislation 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 Report.

Other economic disputes

32. 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 power 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 members with relevant expertise to be added to the Division 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, investigatory and enforcement functions, which have been supplemented by the Fair Trading Act 1986.

33. The Commerce Act in its most recent form gives a greater emphasis to the investigatory role of the Commission. Under the 1975 Act by contrast full natural justice rights of an adversary court type had greater play. That change leads us to make 2 comments. The first is that tribunals are often said to be more active and inquiring and less passive than the courts; that can be one of their strengths in pursuing the public interest. The second comment is that because the Commission remains concerned with very important rights and interests - as reflected for instance by extensive rights of appeal to an augmented Administrative Division of the High Court - the 1986 change of procedural emphasis has to be kept in perspective.

34. The Securities Commission also has a range of functions (including law reform) additional to regular tribunal powers. These powers of decision relate to such matters as 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 questions of law to the High Court.

35. 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

36. 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 New Zealand community (immigration, deportation, citizenship, passports); censorship powers in respect of books, films and 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 revenue including valuation. 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.

The choices

37. 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:

The criteria for choice

38. The reasons or criteria for choice of a particular method of decision-making can be organised under three headings -

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). That Report has since been endorsed by Cabinet.)

(1) The power: the issues and interests

39. 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?

40. This Report is principally about administrative tribunals but we must not forget that elected representatives and responsible governments are fundamental to our governmental and constitutional system. The main principle of our constitution is that it is democratic. Those who for the time being have public power have it within the confines of a democratic system. An issue which we must squarely face is how to draw the line from area to area and time to time between those matters which are to be handled by those with political responsibility to the electorate and those which are best settled by an independent tribunal or court. 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 (or, at a local level, by the relevant local authority whose members are also responsible to the people).

41. Such political processes and governmental power of decision might be complemented by a tribunal. For instance, (1) Ministers might determine the general policy by direction and the tribunal might then apply the policy to particular cases, or (2) a tribunal or a commission of inquiry might have a power to investigate a matter and make recommendations to Ministers who retain the power of decision. The latter power of recommendation is to be found for instance in the environmental area. (While there are cases in which a recommendatory power is conferred on a court that is most unusual and is contrary to the constitutional function of a court of deciding - especially in disputes between the Crown and individuals. We might add that the basic understanding of the function of a tribunal is that it too decides -- subject of course to any appeal or review. In its original meaning a tribunal was a place of judgment, a place of decision.)

42. A more common procedure than such a hybrid executive -tribunal method will be for Parliament to settle the broad policy and decide that a specialist body, independent of the executive and with power of decision, is 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 paras 56-70 below and also para 114 of the report of the Committee on Legislative Change (1987), but that point too emphasises one difference between court and tribunal.)

43. 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 the possibility of imprisonment or detention) the greater the need for the protection of the person affected - in terms of

44. Constitutional principles, legislative practice, natural justice as developed and revived by the Courts, and relevant international standards all give very strong support to that proposition. Early English translations of the central promise of Magna Carta require "due process" from the state. As the public powers to interfere with rights and interests grow, many statutes have required greater procedural protections (sometimes using the phrase "principles of natural justice"). The courts have long shown themselves willing to "supply the omission of the legislature" if a statute which confers public power to affect rights and interests is silent about procedural protections. And the relevant international standards, including the right to a fair trial by an independent and impartial tribunal in the determination of rights and obligations in a suit at law, are being given a liberal reading by some, see e.g. Report of the Committee of the Justice - All Souls Review of Administrative Law in the United Kingdom, Administrative Justice - Some Necessary Reforms (1988) 256-258; see also 376-380.

45. The right to personal liberty and especially to freedom from arbitrary imprisonment and detention of course fall within such principles. But the range of rights and interests to be protected by institutional and procedural safeguards may vary from one context and time to another as the assessment of the value of these rights and interests varies over time.

46. A large volume of relatively routine matters might provide a quite different reason for using a special tribunal especially at first instance 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 also to the third of the general matters noted in para.38 above - the procedure to be followed.

(2) The qualities and responsibilities of the decision-maker

47. 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.

48. The nature of the issues and of the judgments to be made may affect not only the criteria for the appointment of tribunal members, but also the method and the terms of appointment. To stress the independent character of the tribunal, the Minister of Justice or Attorney-General should usually have the major role or at least be involved in the appointment (for instance by way of consultation) and there should be some security of tenure; but the relevant departmental Minister will often also - and rightly - have a role, given the greater policy component in the function. That matter also explains why party caucuses usually have a role in respect of tribunal appointments, but have none at all with judicial appointments. Tribunal appointments are also usually for a fixed term. That in our view is desirable. Among other things it acknowledges that the assessment of the relevant public interests can evolve, and change (see also para 146).

49. On the other hand the issues in some situations - for instance of law and fair procedure - 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. There might be a case for specialisation within the general court as with the Family 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 as mentioned at the end of para 37.

50. By contrast with 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 predominate. They might be such that elected Ministers accountable to the electorate should have the power of decision. Our law and administration has a democratic base.

(3) The procedure to be followed

51. The three categories of decision-makers - courts, tribunals, and the executive - 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. Sometimes that will require very formal, structured presentation of evidence and arguments. Tribunal procedure by contrast is usually less formal, with the rules of evidence being relaxed in almost all cases. 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. They are still however bound by the principles of natural justice. The less structured processes of Ministerial decision-making may extend out to the relevant sources of information and opinion (expert and political) in the community, without rules about notice, disclosure and opportunities for rebuttal and do not require the kind of organised and complete record of a court and many tribunals. Those who decide will often not have "heard" all the material relevant to decision. Such procedures are better able to determine, say, the nature and characteristics of a new taxation regime.

52. Procedures within courts and within tribunals can of course vary greatly (as we noticed for instance with the Commerce Commission, paras 32 and 33 above), 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 themselves justify the use or establishment of a tribunal instead of a court. Thus the Small Claims Tribunal (soon to be renamed the Disputes 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.

53. Tribunals often are more accessible and less costly and 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.

54. However, in some tribunal cases the interests involved will be very large, the issues complex and many, and parties will wish to be represented by counsel and to engage in a relatively formal process - which in part in consequence may well be as costly and time consuming as major litigation in the High Court. But in the usual case the procedural advantages will be available. Legal aid can be important in either event and is provided for in the Legal Aid Act 1969 s15(1)(h) and (j). (That legal services area is also under review.)

55. The criteria set out above are based on much relevant practice in New Zealand and other similar jurisdictions and in the writing of official bodies and others about tribunals. They have been strongly supported by those who have mentioned them in their submissions to us. Accordingly we make the following recommendations.

• The Government should endorse the criteria for the allocation of decision-making powers between the executive, the courts and tribunals set out above. These criteria relate to

• The Government and Parliament should apply these criteria when proposing or reviewing statutes conferring public powers.

A related recommendation concerns a matter raised earlier in this Report (paras 5, 6, 23, 25 and 29; see also para 135):

• In many situations the above criteria may be met by (1) officials (often acting in a summary administrative way) making the first decision and (2) an independent tribunal, following the principles of natural justice determining appeals from the first decision.

Appeal from tribunals to the courts - a contradiction?

56. Paragraphs 38-55 (about What is to be done? Who is to do it? And how?) have been concerned mainly about a single instance, generally the first instance of decision making. But appeal - what next? - (with the same three subquestions) has arisen once or twice (in paras 46 and 49; see also para 37). A brief discussion of appeal to the courts will help to underline some of the points made. Appendix 3 lists many of the relevant appeal provisions. Many statutes over a long period have conferred powers on the courts to hear appeals from administrative tribunals.

57. Such a role for the courts may appear contradictory. The function in question has been conferred on a tribunal (and not on a court) because of the need for expertise, experience, or the consistent application (and perhaps development) of policy, or speed, informality and cost. And yet here we are, in recognition presumably of the proposition that at least one right of appeal should exist, contemplating having the matter going to court. Are we not in danger of having a single judge in a generalist court second guessing an expert multidisciplinary and sometimes multimember tribunal which has been developing and applying relevant public interest policies? Or of a formal, costly and delaying further round of argument?

58. The existence of an appeal system is to be justified by the fact that the appeal decision is likely to be better than the original one. Why? Why is it expected to be better and to be more likely to produce a correct decision? The reasons relate to the body which hears the appeal and the process it follows. If the appeal court is composed of a greater number of judges their qualifications and experience should exceed those of the judge or smaller number of judges in the court below. The parties, their counsel, and the appeal judges should also be helped by the facts that the matter has already been heard and been the subject of a judgment and that the appeal process as a consequence is more focused. Moreover appeal judges should be less pressed for time and less subject to the pressures of litigation. It will be seen that practical matters - as well as ones of principle - are of critical importance for a successful appeal system.

59. The emphasis has been on the correction of the decision so far as the individual litigant is concerned. That is not however purely a matter of private interest. The state as a whole has an interest in the law being faithfully and correctly enforced and applied by its courts. If that does not happen the substantive law might be put at risk.

60. Appeals may also serve another important public purpose - the clarification and development of the law. This function arises, if for no other reason, from the multiplicity of lower court decisions with the possibility of inconsistencies between them. Parliament and the Courts have also expressly recognised this function in their statements of the grounds for granting leave to appeal (where appeal is not of right). They often require that the question raised by the appeal present a far reaching question of law or a matter of dominant public interest.

61. Those reasons for having appeals have to be weighed against the costs of appeals. There are the costs and resources (including the human and public resources involved in the appeal body itself) and the costs arising from the delay in obtaining finality and the risk that a meritorious case would fail because a party cannot afford to take part in the appeal or to await its outcome. And we come back to the legislative choice not to use the courts - at first instance at least -but rather to use another body. To repeat the question, does an appeal to the courts contradict that initial decision?

62. Parts of the answer may be found in (1) the composition of the appeal court (including the use of expert members), (2) the procedure followed (for instance in terms of explanations given to it of the policies and decisions below), and (3) especially the issues that can be taken up and the way they are in fact taken up.

63. Appendix 3 gives the basic material relevant to (1) and (3). In about one third of the cases where there is an appeal to the High Court from a tribunal considered in this report the appeal is simply to the High Court. In the remaining cases the appeal is to the Administrative Division - presumably on the basis that the members of that Division have and build up relevant expertise (although we note that the volume of work of that Division has been less than originally expected). The proportion is about the same for the registration and disciplinary bodies. In 6 cases the regular judicial membership of the High Court or Division is supplemented by members or assessors with relevant expertise and background. As the scientific and technical provisions show that has not however been provided for consistently. Those particular provisions do however indicate one balance between the composition of the appeal court and the grounds for appeal since the nonsupplemented court can upset the expert decision only on the grounds that the original decider had not complied with the Act or that the decision was unreasonable.

64. The more common legislative constraint on the appeal court is to limit the appeal to questions of law. This is so for about half of the tribunals considered in this Report. To be included with the law only group are the technical provisions just mentioned and the provisions requiring the appeal to be heard as if the original decision were decided in the exercise of a discretion. The last group - indecent publications, broadcasting warrants and until recently deportation for terrorist activities - were presumably enacted since Parliament judged that in the first case the courts, having been excluded from the primary decision making on the indecency of books, should be able to intervene in a limited way only; in the second that the assessment of the need for a broadcasting warrant and comparative abilities to provide such a service are primarily for the expert tribunal; and in the third that the Minister of Immigration (with special sources of information and advice) would generally know best about national security.

65. Parliament has not however as a general rule limited the appeal from the expert tribunal to the general court in one or other of these 3 ways. The provisions for appeal in the registration and disciplinary area indeed provide almost completely consistently for a general appeal.

66. Three factors (or some of them) at least must be relevant to those broader grants of power First, a recognition of the importance of the matter and the consequent need for a reconsideration of the merits and not merely the issues of law (for instance as with discipline). Secondly, the fact that the issue may very often not be one involving any significant element of expert judgment. And, thirdly, a recognition that to the extent that there is such an element the general court may defer to the assessment of that element in any event. So, even if the appeal right is given in general terms the courts have often deferred to the tribunal, for instance, by insisting that the appellant show that the decision was plainly wrong, by pointing to the advantage of the body that saw the witnesses (where facts are in dispute), and (most relevantly here) by stressing in respect of matters of policy or discretion the expertise of the tribunal where that is significant. The issue in part is one of comparative legitimacy.

67. The relevant material leads us to 4 conclusions about appeals. The first is that in general there should be one right of appeal against the final decision of tribunals making the original decision - and that that should be a matter of right and not of leave. That is a general proposition and in exceptional cases reasons of timing, cost and formality might lead to a specially composed body or a rejection of it. Such matters however may rather lead to a narrower ground of appeal.

68. Appendix 3 shows inconsistencies in the choice and composition of the appeal body. Social security appeals go to the Administrative Division but legal aid to the High Court. Indecent publications appeals are heard by 3 High Court Judges with no further appeal but film and video appeals are heard by the Division (of 1 Judge) with a further appeal. Moreover the grounds for appeal differ. Animal remedies appeals are general and go to an Administrative Division Judge sitting with assessors, toxic substance matters are not subject to appeal while 3 other scientific matters are subject to a confined appeal to the Administrative Division consisting of one Judge. Our second conclusion is accordingly that greater consistency should be introduced.

69. Whether the ground for appeal is general or confined to questions of law (or confined in some similar way) depends on the range of matters discussed - the composition of the appeal body, the procedure it follows (and that followed below), and the nature of the issues. The choice should be made by reference to those factors. It has not always been made consistently. Consider the substantial variations in the welfare and benefits area, and the somewhat narrower ones in the censorship area (compounded in that case by the fact that different courts and judges have the appeal functions).

70. The fourth. conclusion relates to the matter of a further appeal. Such an appeal in our view should have as its main purpose the clarification of important points of law and principle rather than the correctness of the particular decision. The possibility of such an appeal to the final appeal court for such a public purpose should in our view be allowed for even though it is not likely that it will be used very often. The limited purpose of such an appeal is reflected in the fact that the final appeal is sometimes confined to questions of law. Accordingly the Legislation Advisory Committee recommends that appeals from the decisions of tribunals be in general provided for as follows.

Examples : fisheries and broadcasting

71. A discussion of the allocation of powers relative to the licensing or regulation of fisheries and private broadcasting should help make the foregoing more concrete. The discussion does not go into the detail of complex legislation and its administration, but it does try to show the vital connections between the character of the interests and issues, and the qualities, responsibilities and procedures of the different decision makers.

72. 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 a Maori tribe, 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 from seeking a share - if for instance they have breached the rules or if in some other way (technical or financial) they are not qualified.

73. 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, or on those who may fish (such as the prohibition on foreign fishing vessels in territorial waters). That legislation might be enacted by Parliament or by the Governor-General in Council or other subordinate law makers.

74. Secondly, the regulation or allocation might be by particular decision taken under statutory authority, relating to the circumstances of specific situations and cases. That decision might be made within the context of a more general determination 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 determined the total catch or the maximum number of licences. The two decisions (the overall and the allocational) need not and often will not be made by the same body or person. Thus in a controlled fishery the Minister fixes the maximum number of licences and the largely independent Fisheries Authority chooses among the applicants (with an appeal in respect of the second category of decisions to the High Court). The decision-makers in some cases have the power to impose conditions - with regulatory effect - on those authorised to fish.

75. The various decisions might be controlled by rules or criteria or be conferred in broader 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 which, as discussed in paras 63, 64 and 69-70, might be narrow or limited in some way. 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 numbers 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.

76. 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? 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 for instance by way of tender may indeed also pay a royalty or a rental. (Balloting or choice by lot has also 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 be such that the process of hearing and comparative consideration of the merits of the applications becomes impracticable.

77. 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 in the industry and those who wish to enter it, 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 latter case precise 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.

78. Obviously, the issue and interests have to be identified and defined with some care before the institutions and procedures for decision can be settled. The question can we think be asked - we asked it when the ITQ proposals were before the House in 1985 -whether the issues have been thought through in a sufficiently rigorous way. The range of rights and interests has become far too complex (with quotas alongside licences alongside controlled fisheries and conditions), and the systems and processes of decision-making are incoherent.

79. Broadcasting policy, which is undergoing major change, presents another range of issues. The present system of broadcasting warrants is being abandoned. But the radio spectrum still has to be managed and its use controlled.

80. In respect of broadcasting, a series of important decisions has to be made. The first matter - whether private stations should be able to operate at all - is of course for Parliament (since the law at the moment regulates that matter). It has to establish the basic system. The executive in introducing 'such legislation will have advice; sometimes that may be through a formal commission of inquiry (as twice in the last 20 years). At least 2 types of decision about particular broadcasters are required - the need for a service and its technical feasibility. The decision about the need for a particular station could be made by Ministers or other government agencies, by the existing broadcasting licensees, by an independent tribunal, by a court, or by the market. Ministers could be advised by an independent body such as a commission of inquiry. Standards could be determined by Parliament, Ministers, an industry body, a public tribunal or commission or a court or some combination. When public powers of decision are conferred rights of appeal might also be provided for.

81. The Government has announced that it is abolishing the wan-ant requirements. It will no longer be necessary to establish need and comparative qualifications to obtain a warrant to broadcast. There will of course still be technical requirements to be met by broadcasters. And the Telecommunications Amendment Act 1988 - a part of the relevant legislation - now provides for the allocation by tender or auction of parts of the radio spectrum. It will be necessary to ensure that those decisions are taken consistently with our international obligations and with the Commerce Act and other relevant aspects of competition law. It may be too that tenderers will have to meet a basic qualitative standard. Procedures, powers and institutions may be required for that purpose.

82. How are standards to be established and applied? On the positive side for instance is the need to ensure sufficient New Zealand content; and on the negative side is the need to avoid broadcasting which is in bad taste or which fails to provide a reasonable balance on matters of controversy. Recent Government reports indicate that public agencies - the proposed Broadcasting Commission and Standards Authority - are needed to carry out such functions (Report of the Steering Committee on the Restructuring of the Broadcasting Corporation of New Zealand . . . (July 1988); Officials Coordinating Committee on Broadcasting, Report on Implementation of Broadcasting Policy Reform (August 1988) paras 89-126, 144-176). The matter is taken further with the Broadcasting Bill introduced into the House in mid December 1988.

83. In terms of the Bill the Standards Authority will have substantial powers, for instance to prevent the broadcasting of particular programmes and to order the payment of compensation of up to $5000 to an individual for a broadcaster's failure to maintain standards consistent with privacy, with the sanction of a fine of up to $100,000 for non-compliance with the orders. There would be, according to the Officials Committee no right of appeal "to maintain the principle of a separate and non-Court based regime for broadcasting and to promote the authority of the Authority". Judicial review would still be available (Officials Committee, para 174). We have 2 comments on that proposed arrangement relevant to the choice of decision maker. The first is that the suggested power is very broad. It does not in terms of principle relate at all closely to any existing body of law from which borrowings might be made, and the absence of a right of appeal to the courts would close off that means of developing the principles. The second is that the proposed remedies - the making of orders for the payment of money and relating to the showing or not of programmes - are very much ones that traditionally the courts have handled. The Bill stresses informal procedures while also requiring compliance with the principles of national justice. Questions of the detail of the procedure and review may arise, given the importance of the powers.

84. The proposed Broadcasting Commission has as one broad function reflecting and developing New Zealand identity and culture by promoting programmes about New Zealand and New Zealand interests. The principal means is through funding to be obtained in part from the public broadcasting fees. The allocation of funds for those and the other purpose can of course be controversial matters, and questions about fair procedure and review will arise in respect of them.

85. We have considered these 2 difficult and changing areas of government regulation to stress 3 related points

We stress that these 2 areas are difficult. We shall see that others are more straightforward.

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