Introduction

Part 1: If a new public power is proposed, is it needed, or are suitable powers available under existing law?

Part 2: Who is the appropriate person to have the power?

Part 3: Has a process for exercising the power been established?

Part 4: Has the power and process been clearly stated?

Part 5: What protections have been included for those who could be affected by the exercise of the power?

Background

The government of New Zealand is largely carried out through powers conferred on public authorities by legislation. These powers are known as public powers. They give individuals and agencies the discretion to act or not to act, and to decide what particular action to take.

Public powers should be distinguished from public duties. Powers are those that may be exercised, and where done so will be held lawful. Duties are those that must be performed as a matter of law. Generally, powers are discretionary. However, a public power can be construed as obligatory, when there is a power coupled with a duty to perform it.

Public powers are an essential element of our democratic government, through the separation of powers. The three branches of government all have public powers that interrelate and complement each other. In simple terms, Parliament has full power to make laws, through the political process. The executive has the governmental power of decision. The judiciary has the power to determine disputes and matters of law. Each of these powers is obviously exercised in different circumstances and processes.

There are numerous types of public power. Aside from general law-making and decision-making powers, there are also law enforcement, investigation, prosecution, and the like.

The most significant powers are those that affect individuals. In general, the greater the potential for public powers to impact on individuals, the greater the protections there should be, in terms of the independence of the decision-maker, the procedure to be followed, the specificity of the criteria for the decision, and the rights of appeal and review available.

Issues discussed

The following issues are discussed in this Chapter:

Part 1: Is a new power needed?

Part 2: Who is the appropriate person to have the power?

Part 3: Has a process for exercising the power been established?

Part 4: Has the power and process been clearly stated?

Part 5: What protections have been included for those who could be affected by the exercise of the power?

The first issue is whether the proposed public power is necessary. If it is necessary, then later parts will describe the appropriate procedural and institutional safeguards to use in stating the power, to protect individual rights and freedoms.

In creating a public power, care should be taken to ensure that there is protection for individuals dealing with government or otherwise affected by the exercise of the power.

Earlier chapters describe the importance of individuals' inherent rights and freedoms. Among these, the right to personal liberty and freedom from arbitrary imprisonment and detention are particularly important. A key responsibility of the state is not to trespass on these rights and freedoms in the exercise of public powers, unless the public interest in doing so outweighs the relevant private interest.

Do not create a public power unless it is really needed. Consider whether there are other options for achieving the desired outcome (see Chapter 1). Use these options if possible.

Once it has been established that a public power is necessary, a key question is who should have the power. Public powers can be exercised within the three branches of government, under the separation of powers, at various levels according to their particular nature and function. Powers overlap and inter-relate, and some bodies exercise several different powers. For example, in the criminal justice system, courts and tribunals exercise decision-making power over individuals, but there are also considerable public powers being exercised by agencies of the executive (such as the Police and Corrections).

When conferring a public power, legislation must choose between the executive, legislature and the Courts. There is also a further choice to be made as to the appropriate level within the appropriate branch, for instance, in the executive branch, between central and local government and, if central government, between Ministers, officials, and tribunals and other public bodies.

The appropriate holder of a public power will depend on how confined the power is. Does it mainly involve the finding of past facts and the application of precise rules to those facts, or does it require the making of broader judgments, or the exercise of wide discretions, looking to the future and to elements of public interest. Decisions made in respect of individuals do not automatically require that the decision-maker be a court or tribunal. A further consideration is whether the power has a high policy-making content.

Elected representatives and responsible governments are fundamental to our governmental and constitutional system. The main principle of our constitution is that it is democratic; those who for the time being have public power have it within the confines of a democratic system. A central issue is how to draw the line from area to area and time to time between those matters of public decision which are to be handled by those with political responsibility to the electorate and those which are best settled by an independent tribunal or court. The broader the policy element the more appropriate it may be for the matter to be settled by Ministers who are responsible to Parliament, and ultimately to the electorate (or, at a local level, by the relevant local authority whose members are also responsible to the people).

In some cases more than one officer or body may be involved, with similar or inter-related powers. For example, one body may have only advisory powers (rather than powers of decision), or one can exercise original powers of decision and the other resolves appeals. Many different examples of the spread of public powers can be given. One example is the Immigration Act 1987, which provides for:

• a variety of decision-makers, being the Governor-General in Council, the Minister of Immigration, immigration officers, the Courts (the District Courts, High Court and the Court of Appeal) and a tribunal (the Deportation Review Tribunal)

• a variety of procedures: administrative, on the papers, full hearing

• a variety of decisions relating to admission to, and deportation from, New Zealand

• reference or not to express standards or limiting criteria, such as humanitarian grounds, administrative error, fraud, unlawful residence, national security, criminal offending, terrorism

Aside from the spread of public powers, it is common for Parliament to settle the broad policy and delegate the power of decision-making to an independent specialist body. The specialist body will be best able to develop and apply the policy consistently on a country wide basis. Where appropriate, the policy can be developed by reference to a changing perception of the public interest.

Such a function might be thought better suited to a specialist tribunal with a multidisciplinary and changing membership than to the judges of a court of general jurisdiction. (That is not to deny a role for the courts in respect of questions of law and related matters arising from the exercise of such functions, but the special character of that appellate role also emphasises one difference between court and tribunal.)

A large volume of relatively routine matters might provide a quite different reason for using a specialist tribunal especially at first instance rather than a general court. In some cases, this tribunal might be a public servant acting as an independent officer and usually subject to a full right of appeal to the courts. (This is true of many registration and intellectual and industrial property functions.)

How should a tribunal be constituted?

In general, the members of a tribunal should be, and should be seen to be, independent of parties to matters to be considered by the tribunal. That independence will arise from their qualifications, the method of appointment, their term of office, and the provision for termination of their appointment.

Some statutes indicate criteria relevant to appointment. The matter might be stated as a prerequisite or simply as something to be considered. Many statutes, although not invariably, require that a lawyer chair multi-member tribunals. That requirement, recommended by the Public and Administrative Law Reform Committee in its first report, is to be justified by reference to two features at least of the operation of tribunals - their procedure, and the interpretation of the legislation governing the tribunal's work.

In general the members should be appointed by the Government. The independence of the tribunal is also enhanced by making the appointment on the recommendation of, or at least following consultation with, the Attorney-General or Minister of Justice. Exceptionally parties to matters before a tribunal may have a role in the appointment of the tribunal, for instance, when the legislation adopts arbitration as the means of resolving a dispute.

An appointment should in general be for a term of at least three years and terminable only for good reason such as disability. The reason for this requirement is that the power in issue is to be exercised by an independent body and not by a body subject to particular government direction.

Procedures commonly used by different decision-makers

Court, tribunals, and the executive - have their characteristic procedures. Those different procedures, it can quickly be seen, are more apt for dealing with some issues than others.

A court process is designed, for example, to resolve, through adversary presentation and testing of evidence and argument, disputes about facts and law. Sometimes that will require the formal, structured presentation of evidence and arguments.

Tribunal procedure by contrast is usually less formal, with the rules of evidence being relaxed in almost all cases. Tribunals are sometimes expected to take an inquisitorial role in contrast to a more passive court which is dependent on the parties to bring the relevant material before it. Tribunals are still however bound by the principles of natural justice.

The less structured processes of ministerial decision-making may extend out to the relevant sources of information and opinion (expert and political) in the community, without rules about notice, disclosure and opportunities for rebuttal. Those processes do not require the kind of organised and complete record that a court and many tribunals must assemble. Those who decide will often not have "heard" all the material relevant to decision.

Procedures within courts and within tribunals can of course vary greatly, and that is even more true within the executive. The procedures can be more or less formal, more or less speedy and more or less costly. Those considerations may also themselves justify the use or establishment of a tribunal instead of a court. Thus the Disputes Tribunal was established to deal in an expeditious, informal, private and less costly way with small claims which otherwise come within the regular court jurisdiction. The issues might by contrast be so significant or difficult that a more elaborate and formal process is required.

Tribunals often are more accessible and less costly and allow a greater range of individual and public participation. In the courts a party who wishes to be represented is usually required to engage a lawyer. Tribunals frequently operate without the assistance of lawyers and indeed the use of lawyers is prohibited or limited in some tribunals concerned with private law matters in the interests of informality and lower costs. However, in some tribunal cases the interests involved will be very large, the issues complex and many, and parties will wish to be represented by counsel and to engage in a relatively formal process - which in consequence may well be, in part, as costly and time consuming as major litigation in the High Court. But in the usual case the procedural advantages will be available. Legal aid can be important in either event and is provided for in the Legal Services Act 2000.

When deciding who should have a public power, the following matters should be considered:

• the importance of the individual rights and interests involved (compare, for example, serious criminal or disciplinary processes with a power to confer benefits to which there is no entitlement),

• the importance of the public or state interest involved

• the character of the issues to be decided (for instance fact, policy, discretion, law),

• the expertise to be expected of the decision-maker

• the context, including the administrative one, in which the issue is to be resolved

• the existence of other safeguards over the exercise of the power

• the procedure commonly used by the proposed decision-maker

• the advantage or disadvantage of having a body independent of the government and other public controls making the decision or carrying out the function.

This involves deciding how the public power should be exercised in order to achieve its purpose. It is important to clearly establish some sort of process and guidelines by which the power is to be exercised.

The particular method chosen for exercising the public power will depend on the purpose and characteristics of the power, together with the issues to be resolved and the interests affected, the qualities and responsibilities of the decision-maker, and the procedure to be followed.

The procedure to be followed will depend on whether the decision-maker should -

• give a fair hearing
• consult
• give public notice and invite comment
• decide on a more summary basis

If there is an obligation to give a fair hearing or consult, it is necessary to determine who should be entitled to be heard or to be consulted. This includes those directly affected, those less directly affected, and those who represent some relevant part of the public interest or otherwise may aid the decision-maker.

Where there is an obligation to give a hearing, it is necessary to determine what the particular content of that hearing should be. As a matter of natural justice, the decision-maker must indicate to the persons affected what the issues are, disclose the information relevant to the exercise of the power, and give the persons the opportunity to present their case and to rebut material put forward to their detriment. This can vary in extent from a full court process to a "hearing" on papers. Whether there should be full or more limited hearing largely depends very much on the broad public powers considerations, and the appropriate choice of decision-maker. The detail of the answers should also be helped by the provisions applying in general to tribunals (see below).

In general, those with the power to make decisions should be obliged to disclose the principles and policies they apply and to give reasons for their decisions, if asked to do so by those affected. This principle already binds those subject to the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987.

The exact requirements for exercising a public power will be affected by the existence or not of rights of appeal. Any power the original decision-maker has to reconsider the matter will also be relevant. The existence of safeguards such as review or appeal may mean that procedural safeguards need not be accorded at first instance. But that may be a false economy. It is important to aim to get good quality decisions at that stage.

Procedures for tribunals

The Public and Administrative Law Reform Committee addressed the question of appropriate procedures for tribunals in its sixth report (1973) paras 15-50. The then Department of Justice subsequently reviewed the practice of conferring powers on tribunals by reference to the Commissions of Inquiry Act 1908 and concluded that it was inappropriate to confer powers on tribunals in this way.

If a government department may from time to time be required to appear as a party before a tribunal, then, where practicable, that same department should not provide administrative services for the tribunal (Public and Administrative Law Reform Committee, First Report (1968)). In addition, where a tribunal is hearing appeals from decisions of a government department the same rule should apply. The rule enhances the independence of the tribunal and the appearance of that independence.

Professional discipline

One particular application of tribunals is to professional discipline. In its ninth report (1976) the Public and Administrative Law Reform Committee formulated general standards that should apply to all statutes dealing with discipline of professionals. In its tenth report (1977) it applied these principles to the disciplinary rules of the legal profession. The principles formulated by the Committee were:

• A representative of the public or lay observer should participate in the disciplinary process.

• Investigative and adjudicative functions should be performed by separate bodies.

• Both the complainant and the person whose conduct is the subject of the complaint should be given a fair hearing.

• The grounds upon which a professional can be disciplined must be appropriate to the particular profession.

• Adequate appeal rights must be provided.

When determining how a power should be exercised, and what particular method of decision-making should be used, consider the following criteria:

• the characteristics of the power, together with the issues to be resolved and the interests affected (prominent among those interests are the liberty of individuals and their other important rights)

• the qualities and responsibilities of the decision-maker; and

• the procedure to be followed.

Determining the procedure to be used involves deciding whether the decision-maker should:

• give a fair hearing (in which case, the content should be determined)

• consult (in which case, who should be consulted should be determined)

• give public notice and invite comment (in which case, the content and timeframes should be determined)

• decide on a more summary basis (in which case, the criteria the decision should be based on should be determined).

Professional disciplinary legislation should incorporate the standards set out in the ninth report (1976) of the Public and Administrative Law Reform Committee.

Once the need for a public power has been determined, together with how and by whom it should be exercised, a remaining issue is how the power should be stated. It is essential that the power be stated clearly in the legislation. This involves being clear about what the purpose of the power is, and how it should be achieved. Other issues include: how does the proposed power relate to existing powers? Is it stated sufficiently broadly to achieve the intended purpose while being subject to sufficient restraints and controls to meet the demands of principle?

As a minimum the legislation must state the thing to be done. For example, this may be granting or revoking a licence, conferring or cancelling a benefit, permitting non-New Zealanders to be in New Zealand, or deporting such persons.

The statement of what is to be done will often include a qualification or condition (such as age for a benefit, or status for migration). The qualification or condition can be complex, for example where the principal deportation power can be exercised only if the person in issue has committed certain offences and has done that within a particular period of becoming a resident.

The legislation can set a test that has to be satisfied in the exercise of the power. Once again the immigration legislation provides examples. The appeal tribunal may cancel an order issued for the removal of an overstayer if satisfied, first, that because of exceptional circumstances of humanitarian character removal would be unjust or unduly harsh and, second, that allowing the person to remain would not be contrary to the public interest.

The legislation can (impliedly as well as expressly) put a "gloss" on the power in at least two further ways. It can indicate the matters or factors to be considered (or not to be considered) by those exercising the power. And it can oblige or permit the decision-maker to consider (or not to consider) certain purposes of the power or legislation.

The legislation should state, as far as possible, broadly what the power is; in what circumstances it can be exercised; what matters can be considered; and what is the purpose of the power. These matters are important in both technical and policy senses. In a technical sense, there is a critical difference between the circumstances in which the power can be exercised and the matters for consideration. The former states a prerequisite to action and must be established in the mind of the decision-maker, while the latter indicates matters that must or may merely be considered.

In a policy sense, the issue is: in what circumstances should limiting purposes and factors be indicated? The best approach is to state the purposes and factors as clearly as practicable. There can be a difference between situations where restraints are being imposed on individuals' freedom of action (for example by way of regulations) or things are being taken away from them, and there can be situations where benefits are conferred without any question of entitlement.

The legislation should clearly state whether judgments need to be made on two or more distinct matters in the particular case. This may be addressed in separate provisions. For instance, there may be a need for a new operator in a licensed industry and if so, then the qualifications of particular applicants. Or perhaps a restrictive trade practice exists, and if so, the grounds for whether this is contrary to the public interest.

Clear policy decisions are critical to ensure that the power is stated clearly in the legislation. The legislation should state -

• What the power is

• In what circumstances can it be exercised? (What judgments must be made before exercising the power? Is the exercise of the power discretionary or mandatory once the circumstances are established?)

• What matters should, may, or must not be considered?

• For what purposes may or must the power be exercised, and what purposes are improper?

Part 1 of this chapter requires policy makers to ensure that a public power is necessary, before introducing it. Subsequent Parts discuss the importance of ensuring the policy behind the public power is properly elaborated and applied. Finally, it is critical to consider the individuals affected by the exercise of the power.

How important are the individual rights and interests which may be affected by the exercise of the power? Is personal liberty involved? Do the rights justify or require elaborate and careful protections by a formal process supervised and applied by a body which is clearly independent of the government? Against that may be important public interests which suggest that the government should have a substantial or final power of decision.

As the public powers to interfere with individuals' rights and interests grow, many statutes have required greater procedural protections (sometimes using the phrase "principles of natural justice"). The courts have long shown themselves willing to "supply the omission of the legislature" if a statute which confers public power to affect rights and interests is silent about procedural protections.

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

The Bill of Rights Act 1990 reaffirms the broad principle: "Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law" (s 27(1)).

In general, the more serious the consequence of the decision for individual rights and interests then the more protection should be given the persons affected. This "protection" should take the form of:

• the independence of the decision-maker (court or tribunal rather than executive or, if it is to be the executive, the seniority of the person with power of decision (Minister or even Governor-General rather than officials)),

• the procedure to be followed (rights to provide submissions, to be heard and to call witnesses rather than no express procedural protections at all),

• the specificity of standards, criteria and rules for decision, and

• rights of appeal and review.

The main qualification to this is when a broader public interest prevails over an individual right or interest.