INTRODUCTION

PART 1    

13.1.1 Guidelines    
13.1.2 Explanation

PART 2    

13.2.1 Guidelines    
13.2.2 Explanation

PART 3    

13.3.1 Guidelines    
13.3.2 Explanation

PART 4    

13.4.1 Guidelines    
13.4.2 Explanation

PART 5    

13.5.1 Guidelines    
13.5.2 Explanation

PART 6    

13.6.1 Guidelines    
13.6.2 Explanation

PART 7    

13.7.1 Guidelines    
13.7.2 Explanation

Where legislation authorises decisions that affect a person's rights, interests, or legitimate expectations, it is generally desirable for persons to be able to challenge such decisions, either by way of appeal or by seeking judicial review. A right of appeal must be created by statute; judicial review exists independently of statute. When preparing legislation, policy-makers should consider whether to provide a right of appeal and should be aware of the possibility of judicial review.

Contingent on how the statute is framed, appellate bodies generally operate in the place of the original decision-maker, and make their own findings of fact or law or both. By contrast, reviewing courts supervise the process by which a decision has been made and determine whether it has been made according to law. They do not decide the matter in the place of the original decision-maker but, if review is successful, they will usually send the matter back to the original decision-maker to be decided again.

Whether a right of appeal should be provided turns on the nature of the decision and the decision-maker at first instance, and the need to ensure subsequent oversight. When a right of appeal is provided, policy-makers should consider the composition of the appellate body and the procedure it will follow in hearing appeals. In certain cases, it may also be advisable to impose constraints on a right of appeal, or provide for a second tier of appeal.

In the absence of an effective ouster clause, judicial review may always be used to challenge administrative decisions.[108] The structure of any given piece of legislation may affect the scope and availability of judicial review. Therefore, policy-makers should consider the effect that legislation will have upon judicial review, and the extent to which other supervisory mechanisms are available. In general, legislation should not seek to oust, or unduly restrict, access to judicial review.

Issues

The following issues are discussed in this chapter:

Part 1: Should the legislation provide a right of appeal?

Part 2: Have the proper criteria for choosing the appellate body been applied?

Part 3: Have the proper criteria for choosing the type of appeal been applied?

Part 4: Does the legislation specify the appropriate appellate procedure?

Part 5: Does the legislation give sufficient guidance for the purposes of judicial review on the grounds of error of law?

Part 6: Does the legislation give sufficient guidance for the purposes of judicial review on the grounds of breach of natural justice?

Part 7: Does the legislation unduly restrict judicial review?

It is generally desirable for legislation to provide a right of appeal against the decisions of officials, tribunals and other bodies that affect important rights, interests, or legitimate expectations of citizens. The reasons for providing an appeal are to correct error and to supervise and improve decision-making. However, the value of having an appeal right must be balanced against the following factors:

• cost;
• delay;
• significance of the subject matter;
• the competence and expertise of the decision-maker at first instance; and
• the need for finality.

It will usually be appropriate to respond to concerns about cost and delay by limiting the scope of any right of appeal, rather than denying it altogether.

Where legislation deals with non-justiciable matters, which are generally not subject to judicial review, a right of appeal to a specialist appellate body may be an appropriate means of overseeing the primary decision-maker. A specialist appellate body may also be desirable when the subject matter is particularly technical or where multiple parties have interests that need to be heard and resolved.

Natural justice does not require that there should be a right of appeal from every decision[109] and there is no such thing as a common law right of appeal. However, in most circumstances it will be desirable for legislation to provide a right of appeal against an administrative decision.

Appeals serve a private and a public purpose. The private purpose is to scrutinise and correct specific decisions of first instance decision-makers.[110] The emphasis is on the personal redress of a particular party allegedly wronged by the decision in question. The public purpose of appeals is to maintain a high standard of public administration and public confidence in the legal system. The prospect of scrutiny by a superior body encourages primary decision-makers to produce rulings and judgments of the highest possible quality.

When a public decision impacts on a citizen, legislation typically provides at least one tier of appeal. While judicial review will also usually be available, it is not always a satisfactory remedy. A statutory appeal may be more desirable as it is generally cheaper and speedier. In addition, an appellate body can consider the merits of the decision whereas in judicial review proceedings the court's focus is on the legality of the procedure adopted by the decision-maker.

However, although of great importance, a sound appellate structure cannot ever fully compensate for poor decision-making at first instance. Rights of appeal should be seen as safety devices to deal with occasional errors rather than the main device for preventing errors.[111]

It is also important to note that the general availability of appeals is at odds with the principle of finality.[112] A sequence of appeals can cause objectionable delay and frustration to the parties and may ultimately be counterproductive. Accordingly, the value of having an appeal right must be balanced against factors such as costs, delay and significance of the subject matter. Generally, the cost and delay of the appeal process will not be justified where the matter in issue is relatively unimportant or where there is an overwhelming need for finality. Furthermore, the right of appeal may not be justified where the primary decision-maker is a body of high quality and expertise. Even then, however, it would usually be more appropriate to limit a right of appeal, rather than deny it altogether.[113]

Policymakers should also bear in mind that some matters may be non-justiciable and, as a consequence, not subject to judicial review.[114] A matter tends towards non-justiciability as its policy or political content increases.[115] For example, it is generally recognised that considerations of national security are not subject to judicial review. In such cases, it may be desirable to create a statutory right of appeal to ensure that decisions which the courts will not review continue to be subject to oversight.

Generally, legislation should provide for appeals to be heard by either a specialist tribunal (of which at least one member should have legal training), or a court of general jurisdiction. The following factors are relevant to determining which type of body is best suited to hear and decide the appeal:

• the nature of the decision-maker at first instance, and especially the extent to which it performs a specialist function;
• the significance of the decision in question;
• the necessary balance between expeditious resolution of appeals, and procedural rigour; and
• the extent to which the issues come within the ordinary scope of the court's work.

In determining the appropriate appellate structure, policy-makers should consider the need for a second right of appeal. To an extent, the character of the original decision-maker and first appellate body will shape the need for a second tier of appeal. Conversely, if legislation provides for a second right of appeal, this will influence the choice of the first appellate body.

The desirability of a second right of appeal will turn on:

• the need to ensure judicial oversight of administrative action, which is contingent on the nature of the first appellate body and the availability of other supervisory mechanisms; and
• the implications of the principle of finality.

If a second tier is considered appropriate, appeals against decisions of specialist appellate tribunals should generally be heard by a court of general jurisdiction. This second right of appeal should usually be limited to important questions of law.

A first right of appeal should generally be as of right. A second right of appeal may properly be limited by the requirement of leave. Time limits on rights of appeal are unobjectionable, although, in general, exceptions to time limits should be provided for.

Appeals may be heard either by a specialist tribunal or a court of general jurisdiction. Each has its advantages and disadvantages. A specialist appellate tribunal is well placed to hear and determine appeals in a narrow and focused field in an expeditious and cost-effective manner. Often, the members of such a body have technical expertise in the area in question, which is sharpened by constant involvement in the particular field.[116] However, it is possible that the quality of decisions made by specialised appellate bodies may be compromised for the sake of prompt resolution.[117] To minimise the incidence of legal errors, it will generally be desirable to ensure that at least one member of the specialist tribunal is legally qualified.

The courts of general jurisdiction, on the other hand, have expertise in the law and follow rigorous procedures to ensure its proper application. The courts also have the legitimacy and public confidence that comes from their permanence and transparency.

The important factors to consider when choosing an appellate body are the nature of the issues likely to be involved and the nature of the decision-maker at first instance (the first instance decision-maker). If the first instance decision-maker is likely to be concerned with fact-sensitive and complex technical determinations, a specialist appellate tribunal may be a more appropriate authority to hear and resolve the appeal. A specialist appellate tribunal has the advantage of expertise, and can efficiently dispose of an appeal. It may consist of a panel of experts whose judgements of the merits deserve confidence, and a lawyer who could guide the tribunal to fair and open process according to law. By comparison, a court of general jurisdiction may not necessarily possess experience and understanding of the subject-matter, and may also take longer to deal with technical matters.

Alternatively, when the first instance decision-maker is a specialist body, and the decision could have a significant impact upon the rights and interests of citizens, it may be desirable to allow appeals directly to a court of general jurisdiction. This is especially so when the subject-matter of the decision appealed from comes within the ordinary ambit of the courts' work.

Second tier of appeal Where the first appellate body is a tribunal, policy-makers should consider the utility of creating a second right of appeal to a court of general jurisdiction. Whether a second tier of appeal is needed will turn on the legal competence of the first appellate body, the significance of the matter at stake, and the availability of judicial review. It will often be desirable to restrict the second right of appeal to questions of law. This ensures judicial oversight over the first appeal, while avoiding the danger of endlessly re-litigating the same factual issues.

Limiting appeals Generally, a first appeal should be as of right: that is, it can be brought without the leave of either the first instance decision-maker or the appellate body. The importance of the principle of finality, which minimises costs and ensures certainty, means that a second right of appeal should be available only with the leave either of the first appellate body, or with special leave from the second appellate body. The statute should state the criteria for the granting of leave. Typically, these will include the interests of justice, and/or the public interest in having an important question of law resolved.

There is nothing objectionable in imposing time limits on rights of appeal. However, it will be desirable to have a provision which allows the appellate body to waive the time limit.[118] The statute should expressly state the criteria, however broad or narrow, that guides this discretion. The time limit should not be waived as a matter of course.[119]

Example: Sale of Liquor Act 1989 The Sale of Liquor Act 1989 ("SLA") illustrates these principles. Section 137(1) of the SLA states that any party to proceedings before a District Licensing Agency who is dissatisfied with a decision of the Agency may appeal to the Licensing Authority. Such appeals are heard by way of rehearing.[120] The Licensing Authority may confirm, modify, or reverse the decision.[121]

Section 138(1) of the SLA provides a second right of appeal to the High Court. However, this appeal is restricted to the sole issue of the suitability of the party to hold a liquor licence. Finally, s 150 of the SLA provides for a third right of appeal, with leave, to the Court of Appeal on a question of law. These rights of appeal are all subject to various time limits.

In the interest of finality, appeal rights may be limited to specifically defined issues, usually questions of law, or questions of fact. However, care should be exercised when considering possible limits on appeal rights because:

• it is sometimes very difficult to distinguish between the questions of law and fact; and
• imposing limitations may in some circumstances effectively leave an individual with no right of recourse.

The type of issues that may be considered on appeal should be determined in light of the purpose of providing the appeal, the competence of the appellate body, and the appropriate balance between finality on the one hand, and accurate fact-finding and correct interpretation of the law on the other.

A statute should explicitly state the scope of any appeal right. A decision may be challenged on appeal on the grounds that the factual findings at first instance are wrong, or that the decision relies on an error of law. However, statutes may, and often do, limit a right of appeal simply to questions of law.

The distinction between law and fact can sometimes be elusive.[122] However, it can generally be said that while questions of fact are concerned with the factual basis on which law is applied,[123] whether a set of facts satisfies a certain legal definition or requirement is a question of law.[124] Every point of legal interpretation that arises after the primary facts have been established is a question of law; likewise, the application of the law to a set of facts is a question of law. Where both questions of fact and law are in dispute, the question is called a mixed question of law and fact.

If the purpose of the appeal is to subject administration to the rule of law, and if the appellate body is competent to determine questions of law, then the statute should provide for an appeal on a question of law.

However, where the right of appeal is limited to questions of law, the appellate body is unable to overturn the decision at first instance in the event of factual error. If the purpose of the appeal is to correct factual errors that may have been made by (possibly over worked) first instance decision-makers, the appeal right should not be constrained in this way.

Even where an appeal is not limited to questions of law, it does not follow that the appellate body will comprehensively review all relevant facts. The extent to which the appellate body may inquire into the facts on which the first instance decision rests will depend upon the procedure that the statute specifies.[125]

If imposing limitations would in effect leave an individual with no right of recourse, the right of appeal should not be limited. For example, the scope of the appeal from the Disputes Tribunals to the District Court is extremely narrow and limited to matters of procedural irregularity causing unfairness. The approach of the District Court to appeals from the Disputes Tribunals has been inconsistent, and subject to considerable criticism.[126]

Policy-makers must decide what procedure an appellate body is to follow in hearing appeals. There are four broad types of appellate procedure: pure appeals (stricto sensu), re-hearings, hearings de novo, and appeals by way of case stated.

A statute should make it clear which of these four models of procedure the appellate body is to follow. While the choice of procedure in any given instance turns on the type and purpose of the appeal and the nature of the appellate body, the following observations are generally applicable.

Appeals should not be heard stricto sensu. The cumbersome case-stated procedure should also be avoided. Instead, policy-makers should create a right of appeal limited to questions of law.

Appeals should usually be heard by way of re-hearing. In most situations, this procedure strikes an appropriate balance between the flexibility to correct apparent or glaring factual errors and the need for appeals to be expeditiously resolved. It may be appropriate for appeals to be heard de novo where the primary purpose of the right of appeal is to correct factual errors, and where there is good reason to avoid a presumption that the decision at first instance is based on accurate factual findings. This procedure is, however, more costly than the available alternatives.

Appeals may be heard as pure appeals, appeals by way of re-hearing, hearings de novo, or appeals by way of case stated.

Pure appeals A pure appeal, or an appeal stricto sensu, limits the appellate court to substituting a judgment which could have been given at the original hearing on the basis of the evidence presented. Thus, the appellate court is free to depart from the lower body's factual conclusions, but only to the extent that this is consistent with the evidence that was available to the lower body. The appellate body is not able to hear new evidence. This category of appeal is very restrictive and should not be enacted.

Appeals by way of re-hearing On an appeal by way of a re-hearing the appellate body is entitled to reach its own independent findings on the evidence it admits. The appeal is to be heard on the record of evidence given below, subject to discretionary power to re-hear the whole or any part of the evidence or even to receive further evidence.[127] The term "re-hearing" is somewhat misleading. It does not usually mean the court will hear all the evidence again as though it were a new trial. Instead, it simply means that the appellate body is not limited to correction of errors in the judgment below, but may take into account developments since the trial.[128]

While on a re-hearing the appellate body is not restricted by any findings which the lower court or tribunal has made, the appellate body acknowledges the advantage enjoyed by the first instance decision maker, which may have seen and heard the witnesses.[129] There is a presumption that the decision appealed from is correct and ordinarily an appellate body will only differ from the factual findings of the decision-maker at first instance if:[130]

• the conclusion reached was not open on the evidence, that is, where there was no evidence to support it; or
• the lower body was plainly wrong in the conclusion it reached.

This procedure requires the appellate body to refrain from engaging in a general factual retrial. Most appeals in New Zealand are heard this way. For example, s 76 of the District Courts Act 1947 provides that all civil appeals from the District Court to the High Court shall be by way of rehearing.[131]

Hearings de novo Where an appeal is heard de novo then the appellate body is not bound by the presumption that the decision appealed from is correct.[132] Essentially, the appellate body may approach the case afresh - the appellant receives an entirely new hearing.[133]

Appeal by way of case stated This is not a re-hearing of a dispute, but rather a procedure whereby a tribunal seeks clarification, usually on points of law, from a court of general jurisdiction.[134] For example, s 107 of the Summary Proceedings Act 1957 allows a District Court Judge to consult the High Court on a question of law via appeal by way of case stated.

This procedure has been criticised on the grounds that it wastes time, weakens the value of the appellant's right of appeal because the tribunal controls the formulation of the question, and is essentially an unduly cumbersome appeal procedure.

Which is the most suitable? An appeal by way of re-hearing is the appropriate procedure in most contexts. It is more expeditious than a hearing de novo because of its focus on specific alleged errors, but not as restrictive as an appeal stricto sensu. Indeed, an appeal should focus on specific alleged errors. In general, there is no need to provide an opportunity to re-litigate the whole matter, as in a hearing de novo, unless there is good reason not to presume that the first instance decision-maker correctly ascertained the facts. The added cost of a complete rehearing generally counts against this procedure. An appeal should not be by way of case stated unless there is some reason why this option is preferable to an ordinary appeal limited to questions of law.

Policy-makers should bear in mind that administrative action is subject to judicial review, which tests the lawfulness of state action. The availability and extent of judicial review turns, in a large part, on the character of the legislation in question. Therefore, policy-makers should structure legislation in order to give clear guidance as to the legal limits to which statutory powers are subject.

The purpose for which a power is given should be included with the empowering provision. It is also useful for empowering provisions to set out the terms on which the discretion may be exercised, and the considerations that must be taken into account in exercising the discretion. Where the criteria are not exhaustive, or if no criteria are specified, a court will look to the statute as a whole, particularly its purpose and subject-matter.[135] Ideally, those contemplating legislation should also set out which criteria are mandatory considerations, and which are permissible. It is also desirable for legislation to clarify the consequences that follow from a breach of a statutory pre-condition.

Even where an inferior body (such as a tribunal) has been given power to determine questions of law, decisions of that body will likely be reviewable by the courts on the grounds of error of law.

Broad powers and expansive statutory language will often be read by the courts as being subject to international law, constitutional rights and freedoms, and the principles of the Treaty of Waitangi. Administrative decision-makers may commit an error of law if their decisions fail to consider or are inconsistent with these implicit conditions on statutory power. Policy-makers should consider relevant international obligations, treaty principles, and individual rights in drafting statutory powers. This will minimise the extent to which the courts' determination of these issues supersedes or frustrates the legislative judgment.

Even the most generally worded discretion or power conferred in statute may be subject to the constraints of judicial review. A broadly worded power will be read as being constrained by the purposes of the Act. A court's reading of the purpose of legislation or of a power may be different to that of policy-makers. There are a number of ways to indicate in the statute what policies are intended to inform the exercise of the power:

• state explicitly the purpose(s) of the statute[136] or of the particular power;[137]
• indicate which considerations should be taken into account when exercising the power.[138] The greater the number of considerations, the more they are likely to be considered exhaustive. The more the considerations potentially conflict, the more discretion is being conferred;
• indicate whether some of those considerations should be given more weight than others;
• indicate whether there is a presumption from which the decision-maker should proceed;[139]
• state the preconditions that must be fulfilled for the existence of the power or discretion;[140] and
• indicate any matters that are not to be taken into account.[141]

In addition to what is expressly included in legislation, courts will sometimes read in factors that a decision-maker ought to take into account. When deciding how to structure a discretion, policy-makers should take account of the possible effects that various other legal instruments may have on the exercise of that power, for instance:

• relevant international treaties;
• the principles of the Treaty of Waitangi; and
• the New Zealand Bill of Rights Act 1990.

These instruments should of course be considered in formulating policy in the first place. However, policy-makers should be aware that their judgement as to the relevance of Treaty principles or the requirements of the New Zealand Bill of Rights Act 1990 may not coincide with that of the courts. It is desirable, therefore, that where legislation implicates these considerations, policy-makers make explicit their judgement as to how Treaty principles are to be respected or addressed, and as to how, if at all, individual rights are to be limited. This avoids subsequent judicial implication frustrating the legislative purpose or policy on account of a failure to make clear the legislative will.

It is of course possible that a decision-maker may breach one or many of the various preconditions or limits that a statute places on statutory powers. When decisions predicated on an error of law are subsequently reviewed, the courts are forced to determine the consequences, if any, that should follow from the error. This means that they determine, with regard to the scheme and purpose of the statutory rule, whether the rule was intended to be mandatory or directory. A mandatory rule is fundamental and its breach renders illegitimate the exercise of power; a directory rule may be breached without rendering the exercise of power voidable. It is desirable for the legislation to stipulate the consequence that is to follow from breach of the statutory condition. Fundamentally important rules, which go to jurisdiction and authority, should be mandatory; less important limits, or those which concern a situation where the public interest requires the exercise of the power be final, should be directory.[142]

Where a statutory power may significantly affect rights or interests, it is generally desirable for the statutory scheme to specify the protections that decision-makers must accord to those affected. These protections, also termed rules of natural justice, due process or fairness, fall into two broad categories[1]:

(a) The opportunity to be heard, which will take different forms depending upon the nature of the decision; and

(b) The rule that a decision-maker be free from bias.

In respect of the first category, it is necessary to consider what, if any, procedural protections are required in respect of a particular statutory power. Common procedural protections include the giving of prior notice to those affected, disclosure of relevant material, the provision of an oral hearing, entitlement to legal representation and/or a right to call and/or cross-examine of witnesses.

In order to determine what, if any, procedural protections ought to apply to a given power, it is necessary to consider:

On this basis, statutory provisions should specify what, if any, procedural requirements are to apply to a given power. Where there are particular constraints upon a decision, such as those noted, it may also be desirable to expressly exclude a given procedural protection that might otherwise be found to apply by implication. General statutory provisions that do not specify particular protections but simply require the decision-maker to, for example, “act in accordance with the principles of natural justice” should be avoided.

In respect of the second category, it is not generally necessary to specify that the rule against bias applies. In some instances, however, it will be appropriate that a decision-maker may proceed even though he or she has some interest in the decision and that the rule should be expressly qualified or excluded.

In situations where a decision is being made which could adversely affect an individual’s rights, interests or legitimate expectations, the principles of natural justice will in most instances entitle that individual to certain procedural protections. Whether particular procedural protections are required will vary according to the nature of the individual’s rights or interests, the value of any particular procedural protection in relation to the decision and the wider context, including such factors as limited resources or requirements of confidentiality.

In some instances, the terms of a statute may indicate whether certain natural justice protections do or do not apply by necessary implication.

Where possible, however, the procedural protections that apply to a particular decision-making power should be specified. If the applicable procedural protections are not specified, it will be necessary for decision-makers or, in judicial review proceedings, the courts to infer what, if any, protections are applicable under the common law, leading to uncertainty, legal risk and associated litigation cost and, potentially, the application of more or fewer procedural protections than was intended.[2]

Factors affecting application of procedural protections

In determining whether particular procedural protections ought to apply to a given decision-making power, it is necessary to consider:[3]

• The character of the decision-maker and the decision. For example, broad ministerial powers to make policy or to make extraordinary exceptions will normally warrant more limited procedural protections than decisions by officials in individual cases.

• The nature and importance of the affected rights or interests. In general, the greater the effect and the more important the right or interest in question, the more extensive the procedural protections.

• Whether a particular procedural protection will be beneficial or burdensome to the decision-making process. For example, in considering whether affected individuals should have a right to an oral hearing, it is appropriate to consider whether such a hearing would in fact assist individuals in putting their point of view or whether any benefit is outweighed by the additional costs in time and resources;[4]

• Whether there are other interests beyond that of the individual to be represented. Where a decision involves competing interests of more than one individual, it may be necessary for each to have an opportunity to comment on representations made by the other(s).

• Whether the decision involves the expert evaluation of facts. Some issues, such as determinations of the credibility of conflicting statements, will require a more formal process.

• Whether the decision involves complex legal issues. Where it does, a more formal process is likely to be required.

• Whether the decision is final or preliminary and whether a specific right of reconsideration, appeal or review is provided. Where a decision is preliminary or subject to a review right, it may warrant comparatively limited procedural protections.[5]

• Whether there are particular reasons for excluding a given procedural protection in relation to the decision-making power. For example, as was noted above, there may be reasons to limit the application of the rule against bias. Similarly, limited resources, the need for rapid decisions or requirements of confidentiality may warrant limiting or excluding particular protections.

Application of particular procedural protections

Prior notice/preparation time

People whose rights or interests are affected by the decision should generally be given adequate notice of an impending decision or hearing and adequate opportunity to prepare and present their case[6]. Notice may not be required where it would defeat, or tend to defeat, the purpose of the decision/action, for example where rapid decisions are required, or where notice would be prejudicial, for example in a decision to issue a search warrant[7].

Should disclosure of relevant material be required?

In general, decision-makers should be required to disclose, or offer to disclose, all material upon which they may base their decisions so as to enable those affected to comment on that material[8]. This principle is, however, subject to factors such as practicability or confidentiality, which may warrant withholding of some material and/or the provision of a summary or its provision after a decision is made.

More specifically, where decisions are factually complex or there is the potential for immediate irreparable harm consequent upon a decision, it may also be appropriate to provide affected persons with a preliminary indication of the likely decision so as to afford a further opportunity for comment or correction.

Are written representations sufficient or is it necessary to provide an opportunity for oral representations?

In some situations the opportunity to make written submissions will be sufficient. It is necessary to consider whether an oral hearing is necessary for affected people to express their points of view. For example, an oral hearing will be required where a person’s credibility is in issue[9].

Should legal representation be permitted?

Where a decision-making procedure includes an oral hearing, it is generally appropriate to permit, or give the decision-maker discretion to permit, legal representation. In deciding whether legal representation is appropriate, consideration needs to be given to factor such as:

• the seriousness of the issue and possible consequences of the decision;
• whether points of law are likely to arise;
• the ability of the party to present the case himself or herself;
• the possibility of procedural difficulties;
• the need for a prompt decision; and
• the need for fairness between the parties[10].

In some instances, legal representation may be generally excluded where it would be inconsistent with the nature of the decision-making process, as in the dispute resolution procedure of the Disputes Tribunals or otherwise impracticable.

May parties call witnesses?

Other than in comparatively formal hearings, for example before a tribunal, it is unusual to provide a right to call witnesses. Such a right should only be considered where there is some particular characteristic of the decision in question that necessitates the calling of witnesses.

Right to cross-examine witnesses?

A right to cross-examination will normally arise where witnesses are called although there are some exceptions to this, for instance in the case of a commission of inquiry.

Should the decision-maker be required to give reasons?

There is not yet a general legal principle that all decision-makers must give reasons, although such a principle may be developing. However, a statement of reasons can be required under s 23 of the Official Information Act 1982, if that Act applies.

In any event, providing reasons for decisions is generally desirable for reasons of openness, to provide a basis for consideration of the decision in the event of review or appeal and broadly to protect against wrong, arbitrary, inconsistent or biased decisions[11].

However, where provision of reasons would entail unnecessary formalisation of the decision-making process or require unacceptable cost or delay, it may be appropriate to provide for the giving of reasons on request after a decision is made.

Provision of interpreter

There is no general entitlement to be provided with an interpreter other than in criminal proceedings. It may be appropriate to require a decision-maker to provide an interpreter where affected persons are unable to provide their own, for example when in custody.

Should there be a right of appeal?

See Chapter 13 of these Guidelines.

The rule against bias

In general, decision-makers ought not to decide matters in which they have a financial or other material interest, unless it is so small as to be negligible, or where they have a personal connection with an affected party. It should be noted that the rule does not, in general, require that the decision-maker have no prior view whatsoever.[12]

Depending upon context, it may be appropriate to provide for:

Legislation should not substantively limit the availability of judicial review unless there is a compelling reason to do so. A complete limitation on the right to seek judicial review will nearly always be inappropriate. A compelling need for certainty in a non-justiciable area may justify ousting the courts' jurisdiction to review.

Careful attention should be given to the composition and character of the body that is being excluded from the ambit of judicial review. It may be appropriate to give a person or body that is at the apex of the political system, and which has the competence to interpret legislation correctly, immunity from judicial supervision.

If the decision is made to oust judicial review, notwithstanding the constitutional presumption against doing so, then the ouster clause must be drafted with extreme care if it is to be effective. The nature of the decision that is to be excluded from judicial review, and the rights or interests that it affects, may determine both the constitutional propriety and the likely efficacy of the ouster clause.

It is generally acceptable for legislation to prescribe procedural limitations on judicial review, such as time limits and provisions delaying judicial review until other remedies have been exhausted. It may also be desirable to give the courts power to waive such limitations in certain carefully prescribed circumstances.

Judicial review is an essential mechanism for maintaining the rule of law. The ability of citizens to apply to the courts for judicial review of the exercise of public power is immensely important. Its importance is affirmed by s 27(2) of the New Zealand Bill of Rights Act 1990. Legislation should limit this right only to the extent the limitation is demonstrably justifiable in a free and democratic society.[172]

Statutes may impose two types of limitation on judicial review. The first is the so-called ouster clause, whereby the courts' jurisdiction is entirely excluded. The second is a procedural restriction, which regulates the courts' power to review. Different considerations apply to each type of limitation.

Substantive restrictions Ouster clauses are objectionable because they interfere with the courts' constitutional role as interpreters and expounders of the law.[173] In general, legal obligations are enforceable by the courts. Where judicial review is ousted, it is often argued that the public body whose decisions cannot be reviewed is not subject to the law and therefore has legally unlimited power.[174] The courts' extremely strict approach to interpreting ouster clauses proceeds on the assumption that Parliament cannot have intended those exercising public power to be permitted to act unlawfully.

Strictly speaking, it is incorrect to say that an ouster clause allows a decision-maker to act unlawfully. Legal duties do not necessarily connote judicial enforcement - the obligation of the Privy Council to comply with the law cannot be enforced by a court but it is undoubtedly a legal duty which binds the Privy Council. Moreover, there are other mechanisms beyond judicial review that ensure compliance with the law: for example, specific statutory structures or parliamentary officers. Quite properly, however, the courts presume that Parliament does not intend to entrust a body other than courts of superior jurisdiction with unenforceable or unreviewable legal power. The risk of public power being exercised unlawfully or arbitrarily is too great.

This has two consequences. First, the undoubted normative strength of the presumption against ouster clauses means that Parliament should only seek to oust the courts' review jurisdiction in exceptional cases. Exceptional cases may arise where there is an overwhelming need for finality, in respect of a one-off situation. Excluding the courts' power to review is also less objectionable with respect to matters that are generally regarded as non-justiciable.[175]

A successful ouster of judicial review gives a body other than a court final decision-making power (subject to statutory appeal or objection). Parliament must be confident that such a body is competent to exercise this power and can be trusted in strictly observing its legal duties without oversight by the courts. These criteria will rarely be satisfied.

Second, as a practical matter it is very hard to completely oust the courts' jurisdiction. The courts interpret ouster clauses strictly and attempt to limit their effect as much as possible by presuming that Parliament does not intend to empower statutory authorities to conclusively determine questions of law.[176]

The form of an ouster clause appears to make little difference. The courts have continued to review decisions notwithstanding legislative provisions that include the words "no certiorari [no court order]", "finality", "conclusiveness" or "shall not be questioned".[177] The most effect that an ouster clause is likely to have will be to restrict the ambit of judicial review. For example, the ouster clause in s 109 of the Tax Administration Act 1994 was accepted as restricting the scope of review to error of law or bad faith.[178]

A constitutionally unobjectionable means of achieving the objectives of an ouster clause - certainty, finality and speedy resolution - is to precisely define the grounds on which a court may review. For example, s 193(1) of the Employment Relations Act 2000 excludes review except on the grounds that the Employment Court lacked jurisdiction. Ordinarily this clause would be of little meaning as the courts have largely collapsed the jurisdictional/non-jurisdictional distinction.[179] However, s 193(2) proceeds to define in detail when the Employment Court can be said to lack jurisdiction. This maintains the courts' oversight function but significantly reduces the scope for judicial manoeuvre. The Court of Appeal has accepted that this provision restricts their involvement in the employment law field.[180]

Procedural limitations Procedural limitations prescribe the manner and form through which judicial review may be brought in respect of certain public decisions or actions. Such limits are unobjectionable unless they effectively preclude access to review proceedings.[181]

Time limitations are the most common form of procedural limitation. For example, s 146A of the Immigration Act 1987 establishes a three-month time limit in bringing review proceedings in relation to certain immigration decisions.[182] Time limits create a fixed time period within which to file for judicial review. Outside that period, judicial review is unavailable.

Time limits provide certainty to persons affected by an administrative decision and speed up the process without denying review of unlawful action. As with time limits on statutory appeals, it is advisable to confer a power to extend the time limit on the reviewing court (or appellate body). This mitigates the harsh inflexibility a strict time limit can cause.[183] This need not frustrate the object of finality if the time limit can only be extended for exceptional circumstances relevant to the failure to meet the time limit. A more expansive power to extend the time limit may frustrate this objective.

Another common form of restriction on review is to require the applicant to pursue statutory rights of appeal or objection before seeking review.[184] The courts readily give effect to such clauses.[185] Such provisions are a sensible restriction as the statutory appeal or objection process will often be faster, cheaper and better placed to offer appropriate relief than judicial review. Even in the absence of such provisions, the courts will often decline to offer relief where a person has not pursued a statutory right to recourse.[186]