LEGISLATION ADVISORY COMMITTEE

Legislation Advisory Committee Report No. 3 Administrative Tribunals

The Application of the Criteria

86. We 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 that the regulatory schemes of which they are part are retained essentially as they are) 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

87. There is a prior question (raised in one context in para 16 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 14 above, we have already recommended that some powers should be transferred in that way principally to the District Courts with the consequential abolition of the tribunal. Another possibility is for them to 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 also be asked of other bodies listed in Appendix 2.

88. Could the decisions about the cause of injury and the extent of compensation made by the Accident Compensation Appeal Authority 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. In our view this contrary argument is the more persuasive. This function should remain within the welfare tribunal which we later propose (paras 122-127).

89. 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)? (It was increased from $1000 in 1979.) Two of the members are appointed to represent the interests of dealers and of consumers respectively and presumably have and develop, along with their chairperson (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 (although the cost to the taxpayer is quite high). 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 Dispute Tribunals Act mentioned at the end of para 37(f).) 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. We can see no strong reason why this jurisdiction is not exercised by a District Court or Disputes Tribunal.

90. 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. It was for tire reason that the Committee thought that those judgments should be made by a High Court Judge on appeal from the Minister's decision that it recommended the transfer of the jurisdiction to the High Court (see para 14 and appendix 1). Parliament has already moved partly down that path by providing for appeals to the High Court from Ministerial deportation decisions based on terrorism.

91. The Taxation Review Authorities are required to be either District Court Judges or barristers and solicitors of 7 years practice. (In fact the Authorities appointed are District Court Judges.) 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 to hear and determine 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 appeal is general if the amount involved exceeds prescribed amounts (such as $2000 tax or duty) or is on a point of law only. 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 reasons for the special tribunal are presumably arguments of expertise, consistency of treatment and perhaps informality, privacy and cost. Those reasons lead us to propose that the Authorities should have exclusive first instance power as is the case in other similar jurisdictions. There would continue to be a right of appeal to the High Court on points of law and with leave on a point of law to the Court of Appeal. We later propose that the Authorities should take up jurisdiction under customs legislation and be renamed the revenue tribunal (para 133).

92. 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)? We propose that in the current review of copyright law consideration be given to abolishing the Tribunal and transferring its jurisdiction.

93. 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 sight 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. This is the only environmental jurisdiction handled in this way. We propose that it should be dealt with along with the other environmental and planning matters. (See further paras 128-132 below.)

94. 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 houses 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, we propose that the appeal be to a District Court for the reasons we have given for the other similar proposals (para 14 and Appendix 1).

95. The Equal Opportunities Tribunal was established to make decisions on complaints of unlawful discrimination. 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, usually holds 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. However those panel members in fact bring a wide experience to the work of the Tribunal. Moreover changes in the legislation and its operation may affect the volume of work. Any change in the Tribunal should await the current review of the Human Rights Commission Act 1977.

Statutory arbitration

96. The Law Commission in its discussion paper published in September on Arbitration has called to our attention a further group of statutory powers to decide disputes which we can conveniently mention here The Commission lists 27 statutes providing for statutory arbitration (Preliminary Paper 7, paras 10 and 175-179 and Appendix 3). The Commission suggests that this Committee might consider the provisions in its review of Tribunals. It makes that suggestion on the basis that the provisions appear to provide for arbitration on a compulsory basis, in a departure from one critical element of arbitration as normally understood - that it rests on the consent of the parties. The Legislation Advisory Committee has given only preliminary consideration to the provisions and has not consulted with those affected by them. Accordingly at this stage it does no more than provide an analysis of them and make some tentative proposals, set out in Appendix 4. The Law Commission welcomes comment on those proposals by 1 March 1989. The Commission and the Committee will then consult about appropriate recommendations

97. The above are just some of the proposals for particular changes that might be made. (We later also suggest possible changes in respect of private investigators and shop trading hours, paras 135-136.) This Report is in part designed to facilitate an ongoing assessment of the possibility of different allocations of specific powers, as well as proposing a more general change. We now turn to that matter.

A system for administrative tribunals?

98. 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 inconsistencies, or at least apparent inconsistencies, can arise (eg. paras 30 and 93 above), and the need or possible need for the development of greater order and system may never be addressed.

99. Before we consider the various possible ways of reorganising tribunals, we put a number of tribunals to one side. 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, including the possibility of forming a single review or appeal body. 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.

100. We have already referred briefly to the Commerce Commission and the Securities Commission (paras 32, 33, 34 and 92). Given their functions (particularly those which run beyond the decisional), the need for a consistent approach, the current reviews of those areas of law, and the scale of the two Commissions' 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 (eg. para 92 above) or away from it, and the arrangements for appeals (e.g. paras 32 and 56-70 above; see also the 1988 Annual Report of the Commerce Commission).

101. We have also discussed some of the existing and possible arrangements for exercise of the powers of decision that might arise in broadcasting matters (paras 79-84). They too are subject to very large change.

102. The Small Claims Tribunals (to be reorganised as Disputes Tribunals) and Motor Vehicle Disputes Tribunals have also already been briefly mentioned (paras 24, 37(c) and (f) and 89). They, together with the Tenancy Tribunals, which are also concerned with private disputes, are perhaps best to be seen as part of the District Courts to which they are linked in various ways. Furthermore they have all been either separately reviewed or recently established.

103. As already indicated, tribunals might be grouped or organised or related in different ways -

Some of these steps - e.g. (2) and (4) - might be taken together. The second would build on the 1968 decision to establish an Administrative Division of the High Court, our earlier recommendations to replace appeal tribunals by appeal to a District Court or. to a District Court Judge, and on the fact that a significant number of District Court Judges already operate, essentially separately, as administrative tribunal judges. The third suggestion arises from the establishment in Australia and Victoria of Administrative Appeals Tribunals.

104. The discussion so far leads us to the firm conclusion that we should not adopt the first view. Even if the original reasons for choosing the particular body were valid at the time it was established, that may no longer be so, later inconsistent decisions may have been taken, many were taken on a one off basis 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 87-95 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 now be taken up with the other two possibilities - (3) and (4) in the above list.

An Administrative Division of the District Court?

105. The possibility of establishing an Administrative Division of the District Courts 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 chair the Indecent Publications Tribunal and many of the bodies listed in Appendix 1 which we have already proposed should be absorbed in the District Courts. 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 bind the tribunal; 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 from those generally applicable to the courts.

106. 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

A separate general administrative tribunal?

107. All those arguments might also be made for a general administrative tribunal which is established separately from the courts. 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.

108. Those are critical aspects of the role of the courts. As we have seen, they have often led to the conferring of a right of appeal from tribunal decisions to the High Curt on matters of law (paras 56-70). But they are not decisive for the reasons we give in this and the following 2 paragraphs. So far as we can judge, tribunals are increasingly seen as having a significant, distinct and independent position in our system of justice and administration. We recall the statement made by the Minister of Justice set out in the first paragraph of this Report. The evidence is also to be seen in the very extensive role which successive Parliaments and Governments have accorded to tribunals. The suspicion of administrative tribunals -- based in large part on lack of familiarity and ignorance of developments elsewhere - that was common say 50 or 60 years ago in several common law jurisdictions has long since passed. There is no reflection of it in the submissions made to us. Now the agenda is a more specific and reasoned one:

109. All that discussion and the related developments recognise that tribunals have a position distinct from that of the courts. The earlier discussion of criteria for allocation recognises that as well (par-as 38-55). Parliament has not vested the powers of decision with which we are concerned in the courts. Rather it has given the powers to a special, separate body. 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. It has created bodies with special expertise that can make a full, informed decision on the merits of the matter in dispute. The nature of the functions (or at least some of them) is distinct from the work of the District Courts. In many cases there is no real affinity. And we must be concerned that the ambience of the one body will inappropriately affect the operation of the others In a general way the advantages of tribunals that led to their separate establishment are likely to be lost by a wholesale movement of jurisdiction into the ordinary courts. Some of these matters are not very tangible, but cumulatively they persuade us that there should continue to be administrative tribunals composed and operating separately and differently from the courts. In that of course we come to the conclusion reached in many other countries with similar governmental, constitutional and legal arrangements.

110. The proponents of a Division of the District Court might 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. That Division has not however had conferred on it the extensive jurisdiction that the members of the Public and Administrative Law Reform Committee expected and recommended. (Appendix 3 lists the statutes conferring jurisdiction.) Moreover its members are not (again contrary to the proposal of the Committee) appointed permanently. For those and other reasons they have not built up the special experience that was originally anticipated. (In 1987, the Division had 7 Judges and about 30 administrative appeals were heard.) The function has been more a court one and less an administrative tribunal one. And the Division, instead of replacing much of the preexisting (appellate) tribunal structure has become yet another means additional to, and not instead of, other existing means of handling appeals - appeal tribunals, special tribunals, the High Court in its general jurisdiction, the District Courts and District Court Judges, and ad hoc bodies.

111. To recapitulate, we are persuaded of the essential role of tribunals in our system of law and administration. We see the force of the argument for consolidating the various functions for the reasons given in para 106 - but for the reasons just given we think that the consolidation should occur separately from the courts. We think that the various advantages can be obtained but not by way of a single general tribunal.

112. In our view a single overall tribunal handling all administrative appeals and related matters is not possible. One reason relates to 3 significant areas of administrative adjudication which we have already put to one side. We have done that because they are large and have other important non-decisional functions; and 2 of them are also currently under review - the Commerce Commission, the Securities Commission, the Broadcasting Tribunal. Consider as well the various censorship bodies (paras 99-101; see also para 102 for the private law tribunals which belong with the court system given the nature of their business and their registry arrangements). That is to say a general tribunal would not in any event be comprehensive It is relevant as well that the principal model urged on us in very interesting submissions favouring a single tribunal -the Australian Administrative Appeal Tribunal - does not have jurisdiction in respect of trade practices and companies and securities issues.

113. That Tribunal also does not have jurisdiction in a very large number of other areas of administrative adjudication. Thus among the other 50 "review tribunals" which continue to exist at the federal level independently of the AAT are review committees under the ACT legal aid ordinance, the Security Appeals Tribunal, Social Security Appeals Tribunals (although tie main social security jurisdiction is now subject to the AAT), student assistance review tribunal, and the Repatriation Commission and the Veterans Review Board, eg. ARC, Eleventh Annual Report 1986-87, Appendix 5.

114. It is also important to our consideration of this matter that that Australian Tribunal is divided by law into 3 divisions (General, Veterans, and Taxation) and that most of its members are assigned to just one Division. Finally, 12 other statutes place further limits on who may hear additional categories of appeals. The Australian Administrative Review Council has recently recommended that the divisions and limits be removed and that the President of the Tribunals be given the power to determine how large the panel is to be and its composition. But the Council stresses that it is critical that such determinations bring the appropriate experience or perspective to the relevant appeal task. The Government has not yet acted on that recommendation (Report No 29, Constitution of the Australian Appeal Tribunal ((1987)).

115. One other aspect of appeal arising from the work of the Australian Tribunal should be mentioned - the extent of review of the original decision. Should the appeal body make up its own mind completely unaffected by the decision below? Or should it give some significance to that decision? So it might

116. The Australian Tribunal does sometimes deal with matters as if they were originally before it - particularly in those cases where it hears the evidence and the original decision-maker did not. The Planning Tribunal provides a close New Zealand parallel. But in some cases the Tribunal also stresses the importance of consistency in the application of government and administrative policies and has regard to those policies, while looking to the preferable decision to the particular case. That is to say there can be no single answer to the extent of review on appeal. It certainly cannot be the case that every appellant is entitled to have the matter dealt with fully and originally. Such an approach would give far too little significance to the first instance decision maker, which we stress handles the very large proportion of the cases, and would be profligate with resources. But one central factor in the effective, economic consideration of the merits of an appeal is the experience and knowledge of the members of appeal bodies.

117. The Australian legislation and the related practice indicates that in a variety of ways there is a matching of experience and form to the particular administrative business. There is not a single homogeneous tribunal dealing in one way with a single set of cases. Consider for New Zealand the great variety of business undertaken by the tribunals listed in Appendix 2. Can the business really be conveniently and sensibly be brought within a single body? We do not think so. The apparent unity of the jurisdiction - say over accident compensation, land valuation, the licensing of pesticides, and the grant of fishing quotas - would be only apparent and not real. There would in any event be separate tribunals in practice. We would lose the advantages of specialisation and expertise if all the business were all brought into a single, undivided tribunal. To repeat, our experience, like the Australian, shows that it is not possible to bring all those jurisdictions into a single tribunal.

Groupings of tribunals?

118. The references to particular areas of decision in that last paragraph 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 particular issues to be decided. It is important that we return to the specific areas of tribunal work. The areas mentioned provide a convenient lead into the third general possibility raised earlier and to our principal recommendation under this heading - that there be a number of groupings of at least some of the tribunals and jurisdictions this paper is concerned with. Each grouping would constitute a tribunal. We make the following recommendations

• There should be a rationalisation of the system of administrative tribunals, with the members and functions being brought together in a smaller number of larger bodies, with advantages for the build up of expertise in administrative adjudication and in the grouped areas of activity, and as well for greater efficiency and economy in the administration of the tribunals

• The major tribunals would be concerned with

119. The tribunals would all be given administrative support by the Tribunals Division of the Justice Department, each would contain judicial (legally qualified) members and expert members (who would sit as required by or in accordance with the particular legislation), and each would have a single set of appeal arrangements. They would tend to attract other jurisdiction (existing or proposed), and they would provide models for other areas (such as economic licensing or censorship).

120. Some recognition of the acquisition by individuals of general skills in administrative adjudication as such could be given by continuing the present practice by which some Tribunal Judges hold warrants in respect of more than one tribunal.

121. This approach would continue to take advantage of, and build on, the experience, facilities and support provided by the Tribunals Division of the Department of Justice which is responsible for the servicing of 15 of the bodies considered in this Report and a number of others (see Appendix 2). It has the task of providing efficient and economical servicing of various tribunals established as adjudicatory bodies set up in addition to, but apart from, ordinary courts of law. And it does that independently from the Departments of State which are responsible for the policy and decisions in issue before the tribunals. The Division's experience is now extensive in time (it was established in 1970), in the range of different tribunals and procedures, and in actual extent; so each year between 4,000 and 5,000 cases are filed, about 2,500 are heard, and there are about 1,000 hearing days.

A welfare tribunal

122. Five tribunals are in the benefits 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 questions 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, from departmental officials and others. 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; in fact chaired by a District Court Judge); 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.

123. 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. Accident compensation decisions can be appealed with leave of the Authority or Court on law or more broadly. Questions of law can be taken on further appeal in all 3 jurisdictions 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 those matters that are dealt with by the Social Security Appeal Authority 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.

124. The varying composition and appeal arrangements along with varying procedures 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 a combination of function where that appears desirable?

125. As we have already indicated (para 122) (and is also partly indicated by the practice of having the same District Court Judge sitting in more than one of the jurisdictions) we accept the latter explanation. We do not have a careful overall design. The various functions have much in common and could with advantage be brought together. The review of the social security and related legislation announced in September by the Minister of Social Welfare provides just the opportunity for that. We propose that the recommended welfare tribunal be part of that review.

126. The varying composition and appeal arrangements also lead us to make 2 proposals (which are not limited to this proposed tribunal). The issues arising before each of the tribunals will sometimes be procedural and preliminary or limited to questions of law, while in others will run more widely into the merits of the issues. The presiding judge in the tribunal should have the power to limit the tribunal to a legally qualified member in the first category while in the second the members with relevant expertise and perspective would be part of the tribunal. The Australian legislation and practice, as well as the relevant provisions of the Town and Country Planning Act 1977, provide models. The second matter is the further appeal from the tribunal to the courts. Consistent with principle and practice this should be limited to an appeal to the High Court on a point of law. There should probably be a further appeal, with leave, to the Court of Appeal, to enable any difficulties that had arisen in the High Court decisions to be resolved definitively. This would continue to be rare.

127. It might also be convenient to recall the recommendation made earlier about the value of administrative review within the agency in question (para 55). Many matters are resolved at that stage, with less cost and delay than involved in tribunal proceedings. When there is a large volume of decisions being taken within the department, consideration should be given to including a review procedure in the legislation as has been done for social security, war pensions, and accident compensation.

A resources tribunal

128. Our second proposed tribunal is the resources tribunal. The relevant group of decision-making powers is concerned with planning, environmental and scientific matters: clean air appeals (para 93 above), land rating classification, land valuation, and planning; and animal remedies, medicines, pesticides and toxic substances.

129. The Planning Tribunal already has jurisdiction under a wide range of statutes -town and country planning, water and soil conservation, mining, historic places, public works, local government, fisheries. We propose that as a resources tribunal it should have jurisdiction over a range of other matters in the land use and related scientific areas. So the land rating classification and land valuation jurisdictions (exercised by District Court Judges and expert members) should be exercised within the expanded tribunal. The valuation and compensation issues, relating to land, come within its general expertise (See the Report of the Royal Commission on the Courts para 427.) In the valuation area the expert members play an important role which we expect would continue. Again, the current review of resources management law provides a timely opportunity. It should have such a tribunal as one of its central institutional elements, although we call attention to the need, discussed earlier, to determine by reference to principle which matters are to be settled by elected officers, subject to democratic accountability, and which are appropriate for decision by an independent expert tribunal or the courts. The review is also addressing the questions raised by Mr A Hearn QC in his Review of the Town and Country Planning Act (1987) section VI whether the Tribunal should have enforcement powers (by way of prosecution and injunction) and wider declaratory functions.

130. On one aspect of the land valuation tribunals jurisdiction we return to an earlier matter - that tribunal (or rather its judicial members) handles a large number of applications under the aggregation and foreign ownership provisions of the Land Settlement Promotion and Land Acquisition Act 1952. Almost all are uncontested. The procedure is a relatively straightforward administrative one. We propose that the matter be handled by the Department of Lands unless it proposes to reject an application in which case it would be referred to the Tribunal (see similarly paras 5, 6, 25 above). The Royal Commission on the Courts proposed that the Registrar of the relevant court could decide uncontested applications (para 429).

131. 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 such powers to independent bodies : 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. Would the preferable course be to provide for the first decision to be taken within the department, no doubt on an expert basis, with an appropriate right of appeal? We now turn to the appeal issue.

132. 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 also 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.) We propose that all appeals go to the proposed resources tribunal. The Planning Tribunal already makes decisions with a scientific and technical component and the proposed resources tribunal could be appropriately composed according to the scientific issue. The provisions for the composition of the tribunal and for further appeals would be as recommended above for the welfare tribunal (para 126).

A revenue tribunal

133. Our proposed third tribunal, the revenue tribunal, would be an expanded Taxation Review Authority (mentioned in para 91 above). 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. Once again a current review - of customs legislation by our Chairman - provides an opportunity for those issues to be addressed in an overall way. We have already proposed that the Authority should have exclusive original jurisdiction in respect of taxation matters. That would include customs disputes as well (other than those which can properly be resolved by the Minister). In this case we have already proposed that because of the role of the tribunal the right of appeal to the High Court be limited to questions of law. There would be a further appeal to the Court of Appeal by leave.

134. Appendix 2 lists almost 50 tribunals. The above 3 tribunals would absorb 20 of them (or 16 and would hear appeals from the 4 scientific bodies if those bodies remained). We put to one side the 3 private law tribunals, the Commerce Commission and the Securities Commission for the reasons already indicated; and the 3 censorship bodies, the Equal Opportunities Tribunal, the Licensing Control Commission and the Broadcasting Tribunal because they axe under review; and we have already suggested the transfer of jurisdiction of and consequent abolition of 3 others (Copyright Tribunal, Deportation Review Tribunal and the Meat Committee). There remain a number of licensing bodies.

A licensing tribunal?

135. The licensing regimes sometimes have qualitative purposes (relating especially to the standards of the applicant) and sometimes, as well, quantitative ones (relating to the protection of a scarce resource or of existing operators). Some licensing, we have already noted (para 28), belongs with Ministers. And occupational licensing is the subject of a separate review (para 15 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 of its general category for a social purpose and based on personal fitness not administered in the District Courts. We do not,see why it should not be treated in the same way as second hand dealers, pawnbrokers, and massage parlours. Two further questions can of course be asked: is licensing needed at all (might not a power of disqualification from an occupation or trade following say a conviction on a relevant offence 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 (See paras 5 and 6 above). We propose that any independent power of decision be exercised by a District Court.

136. Another area of licensing which might be transferred to existing institutions 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. (Compare the fact that some powers are exercised by the Minister of Labour and the Secretary for Labour.) Is there now an argument for saying that if control is to remain 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 (or our proposed resources tribunal)? This whole matter has of course been recently reviewed, and there is the broader, related examination of the powers of local government, Shop Trading Hours Act 1977, Report of the Advisory Committee, 30 June 1988 (p12 discusses the Commission). The changes proposed for liquor licensing perhaps provide a relevant model for local decision making. If the jurisdiction is maintained we propose that consideration be given to conferring it on the relevant local authorities with a right of appeal to the resources tribunal.

137. One group of bodies licenses primary produce exporters: including (1) Berryfruit Marketing Licensing Authority, (2) Came Industry Board, (3) NZ Fishing Industry Board, and (4) NZ Horticulture Export Authority In addition to their actual or potential licensing functions, 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. Moreover, the area appears to be one of fundamental change in which quite different answers might be given in similar areas. We do not think that we can make a useful general proposal about the first instance jurisdiction.

138. The only question we wish to raise at this stage relates to the appeal system. Appeals from the decisions of (1), (2), and (4) (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 of Agriculture). A fisheries appeal (3) would be to the Administrative Division of the High Court sitting with two assessors. In (1), (2), and (4) 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 have already made (para 14 and appendix 1)?

139. 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 in 1968 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 (by then the only issues were qualitative). But given that the current Review of the Licensed Transport Industry may well lead to the removal or substantial reduction of the remaining licensing functions, any further suggestions are probably premature. The majority view of those consulted by that review has been that if quantitative licensing goes, then the Licensing Authorities would be abolished (Ministry of Transport, A Review of the Licensed Transport Industry : Summary of Submissions and Proposals (August 1988) 30).

140. The fisheries licensing law, as already indicated (paras 71-78) 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. The Fisheries Authority agrees with that view. The legislation relating to pharmacies is also being reviewed and presumably the position of the Pharmacy Authority (which decides applications relating to the establishment, ownership and operation of pharmacies) will bring considered within that review.

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