Waikato Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Waikato Law Review |
|
The development of administrative law in the United Kingdom (“UK”) and New Zealand has been described by Joseph as “essentially a post-war phenomenon”.[1] It has developed incrementally since Victorian times in response to changes in society due to events such as the industrial revolution, the outbreak of war, and the creation of the welfare state.
For example, during the 19th century the industrial revolution in the UK provided the impetus for the growth in administrative law to address problems relating to the regulation of factories, the Poor Law, railways, and public health. The growth in administrative law continued in the 20th century due to the need to regulate pensions and workers compensation schemes, and the development of the national health service. This led Taylor to comment that:
Until August 1914 a sensible, law-abiding [citizen] could pass through life and hardly notice the existence of the state, beyond the post office and the policeman. ... The state intervened to prevent the citizen from eating adulterated food or contracting certain infectious diseases. It imposed safety rules in factories, and prevented women, and adult males in some industries from working excessive hours. ... This tendency toward more state action was increasing. ... Still, broadly speaking, the state acted only to help those who could not help themselves. It left the adult citizen alone.[2]
A consequence of the changes in society has been “the increase in delegated legislation and the growth of administrative tribunals”.[3] The development of specialist courts and tribunals therefore arose at the critical point of the establishment of British rule over New Zealand. As a result it is not surprising that New Zealand has inherited a strong administrative tradition. This included a passion for setting up a range of tribunals which provide an alternative avenue of complaint for the citizen instead of having recourse to judicial review in the High Court. The importance of the jurisdiction exercised by some tribunals has also resulted in the development of specialist courts, particularly in relation to property rights.
This article will focus on the role of specialist courts and tribunals. In particular, the Environment Court will be used as a case study. Critical questions in this analysis will relate to the arguments which justify assigning tasks to specialist courts and tribunals; their independence, both political and financial; and the effectiveness of the remedies provided.
The Law Commission has identified over 100 specialist tribunals that have been established in New Zealand ranging from Consent Authorities under the Resource Management Act 1991 (“RMA”) to the New Zealand Parole Board.[4] They are responsible for adjudicating disputes in a wide range of matters, including “disputes between citizens and government departments” in relation to matters such as environmental and planning issues, immigration, welfare and benefits, and taxation.[5]
Other specialist tribunals are responsible for “occupational licensing & discipline” (for example the Police Complaints Authority), “decisions on economic matters” (the Commerce Commission), “decisions on human and cultural rights” (the Waitangi Tribunal), deciding “disputes between individuals (the Tenancy Tribunal), and “censorship” (the Office of Film and Literature Classification).[6]
Specialist tribunals also exercise divergent jurisdiction with some tribunals exercising original jurisdiction to determine matters at first instance (the Consent Authorities), some tribunals reviewing the decisions taken by others (the Deportation Review Tribunal), and some tribunals exercising concurrent jurisdiction (both original and review) (the Refugee Status Appeals Authority).[7]
There are differences between the appeal rights available from the various specialist tribunals to the general courts. For example, in some cases there are no appeal rights (the Student Allowance Appeal Authority), whilst in other cases rights of appeal to the District Court, High Court, or Court of Appeal are provided (the Residence Appeal Authority).[8] Beyond that, there are also differences in the category of appeal rights provided. A general right of appeal is allowed in some cases (the State Housing Appeals Authority). In other cases appeal rights are limited to questions of law, matters of public importance, or specified grounds, or are restricted to specific statutory provisions. In some cases the right of appeal can be exercised only if leave is obtained from the general courts.[9]
The Department for Courts has played a key role in the administration of justice in New Zealand.[10] The Department’s Annual Report for the Year Ended 30 June 2002 stated that:
Maintaining the separation of powers and the independence of each of the branches of Government is fundamental to New Zealand’s constitutional arrangements. Within the New Zealand public sector, the Department for Courts has a key and unique role as an agency working for the Executive, while, at the same time, working in the interests of the independent Judiciary to administer the Court system.[11]
As a result the Department is responsible for managing “administrative services within the court system, supporting the work of the Judiciary in determining and managing criminal, civil and family cases” in the general courts.[12] The Special Jurisdictions Unit of the Department, however, plays a more limited role in being responsible for managing “administrative services supporting a range of specialist courts, tribunals, and authorities including the Maori Land Court, Waitangi Tribunal, Environment Court, Coroners, Disputes Tribunal, Tenancy Tribunal and Land Valuation Tribunal”.[13]
What emerges from this brief analysis of the work of the Department for Courts is the fact that the Department is currently responsible for supporting only 24 out of more than 100 specialist courts and tribunals. The majority of specialist tribunals, therefore, rely on the government department or agency which they were set up to supervise. As a result there is considerable variety in the jurisdiction given to specialist courts and tribunals in New Zealand.
The growth in the number of specialist courts and tribunals, particularly during the second half of the 20th century, has been pragmatic rather than principled, as will be readily apparent from the historical background above. As a result it will be relevant to consider next the arguments which justify assigning tasks to specialist courts and tribunals, before turning to look at proposals for reform of the system.
Legomsky considered the criteria for establishing specialist courts and tribunals in Specialized Justice – Courts, Administrative Tribunals and a Cross-National Theory of Specialization. He identified 12 criteria which can be used to assess the benefits and costs of specialization, namely:
Mix of law, fact, and discretion;
Technical complexity;
Degree of isolation;
Cohesiveness;
Degree of repetition;
Degree of controversy;
Clannishness;
Peculiar importance of consistency;
Dynamism;
Logistics: volume, time per case, and geographic distribution;
Special need for prompt resolution;
Unique procedural needs.[14]
The criteria identified by Legomsky are not new, but provide a useful one-stop summary of the factors which may be relevant to the decision to establish specialist courts and tribunals.[15] It will be noted that the criteria will sometimes conflict with each other, and that all criteria will not be relevant in every case.[16] Whilst this article concentrates on current proposals for reform of the system of specialist courts and tribunals in New Zealand, the criteria provide a litmus test of the continuing need for assigning tasks to these bodies. Legomsky used the criteria to examine the possible models that “specialization [should] take”.[17] Based on the experience of the former Administrative Division of the High Court of New Zealand, he argued for a “multi-speciality” approach to adjudication with a core group of judges being responsible for determining cases from a range of specialist statutory regimes (for example, Town and Country Planning Appeals), similar to the “umbrella” approach now recommended by the Law Commission.
Legomsky found that the exercise of discretion provides a general rationale for specialization. In particular, he found that “the application of broadly worded statutory provisions” and “decisions that depend heavily on personal value-judgments” are well suited to a specialist approach.[18] For example, he noted that:
The greater the scope of the decision-maker’s choice, the more essential become several qualities: a deep understanding of the relevant policy objectives, a reduced probability of simple inadvertence, the pursuit of coherence, and the minimizing of dependence on the views and comparative adversarial skills of opposing counsel.[19]
Questions of law on the other hand were found to be more suitable for determination by the “legal generalist” as legal training in itself reduces the need for relatively confined legal matters to be determined by specialist courts and tribunals.[20]
Technical complexity was identified by Legomsky as one of the “traditional” reasons for establishing specialist courts and tribunals.[21] He found that technical complexity can arise from a number of factors including “the sheer size of the pertinent legislation”. Specifically, he noted that “a massive statute, particularly if accompanied by lengthy administrative regulations, might ... be seen as introducing a high degree of ‘technicality’”.[22]
Similarly, an area of law may be considered technically complex due to the fact that professional expertise from other disciplines is required in order to determine the facts of a particular case before the tribunal for adjudication.[23] For example, Legomsky noted that:
Some environmental cases will be comprehensible only to chemists; some patent cases will be understood only by mechanical engineers. In these instances, even an appellate body charged only with assuming there is evidentiary support for the findings of the lower tribunal might be mystified.[24]
The degree of isolation, or the extent to which a particular area of law is “discrete” or “unique” will be determined by considering whether reference to other areas of law or non-legal issues is necessary in order to determine the matters in issue in a given case.[25] Legomsky found that:
... the quality of a decision can be enhanced when the adjudicator is aware of approaches taken in analogous situations. That awareness can also promote consistency between or among areas. And efficiency is improved if a tribunal has already had access to a situation that avoids duplication of someone else’s effort. Again a tribunal with jurisdiction over all these analogous areas might be ideal, but when either the number or the nature of those areas makes that arrangement unworkable, specialization within one such field alone might pose unacceptable costs.[26]
Other factors which indicate that a specialist approach is desirable include cohesiveness or “a high degree of inter-relationship within a single subject”, the degree of repetition or frequency with which similar issues arise for determination, and clannishness or the degree to which “the private lawyers, the government officials, the expert witnesses, and others [engaged in a particular field] form a relatively closed group”.[27]
However, the degree of controversy or the extent to which “the public is likely to perceive [professional] bias in the decisions of specialized experts”, provides a counter-factual argument against assigning jurisdiction to specialist courts and tribunals.[28]
Legomsky found that specialist courts and tribunals can promote consistency in a particular area.[29] He also found that the need for consistency is “magnified” by the presence of trade competition.[30] He observed that:
If one restaurant is granted a liquor licence and an adjacent restaurant in similar circumstances is denied one, that latter is worse off than if both licence applications had been denied. The good fortune of one business can, in a competitive setting, be the bad fortune of another.[31]
Legomsky found that dynamism or “the increased need to monitor and apply current developments makes specialized expertise more valuable”.[32] He also found that the volume and geographic spread of litigation can justify “establishing a specialized adjudicative body”.[33] There is, however, an operational limit in terms of the number of cases that can be determined in any given period. As a result Legomsky noted that:
Just as a high volume of cases can impair the functioning of the general courts, a low volume can make specialized adjudication ineffectual. So much of the raison d’etre for specialized tribunals is the enhanced expertise, consistency, and efficiency that specialization can bring. All these benefits require a sufficient case-load.[34]
7. Speed of decision
Specialist courts and tribunals also lend themselves well to “prompt resolution” of disputes.[35] Legomsky noted that:
For several reasons, specialized adjudication can be a device to speed the disposition of cases. Experts can presumably handle greater case-loads because their familiarity with the subject diminishes the time they will need per case. Further, if the authority creating a specialized tribunal wishes, it can tailor the resources of the tribunal to the special need for promptness in that subject area – an option not as readily available when the cases comprise merely one small part of the work of a tribunal with general jurisdiction.[36]
Legomsky also observed that the disposal rate of cases before the courts is “crucial” when dealing with “frivolous actions [lodged] for purposes of delay’. Speedy decision-making “discourage[s] frivolous actions”.[37]
Similarly, Craig has identified speed of decision as one of the arguments that support assigning jurisdiction to specialist courts and tribunals. He noted that:
... they have advantages of speed, cheapness, informality and expertise. These advantages are of particular importance in areas involving mass administrative justice, such as the distribution of social welfare benefits. It would ... be extremely difficult for the ordinary courts to cope with the large increase in case load if these matters were assigned to the ordinary judicial process. The creation of a tribunal system can also alleviate problems for the courts, which can become inundated by judicial review applications within a particular area.[38]
Interestingly, whilst Legomsky identified a number of criteria that indicate the circumstances where it may be appropriate to establish specialist courts and tribunals to deal with specific areas of law and the disputes which arise in these areas, overall he found that “[n]o one procedure is ideal for all disputes”.[39] Indeed, this point was emphasized by the Law Commission in Striking the Balance. It noted that:
Over the years, a number of specialist courts have developed to hear particular types of cases such as family disputes and employment problems, and environmental matters. This has benefits in that a multi-million dollar planning case heard in the Environment Court may well require different expertise and processes than a case about child custody heard in the Family Court.[40]
Beyond the criteria identified by Legomsky, Craig offers three arguments to explain the rationale for establishing specialist courts and tribunals[41], namely:
... [a] different type of argument was that the ordinary courts might not be sympathetic to the protection of the substantive interests contained in the legislation that laid the foundation of the welfare state ... and therefore the matter should be assigned to a tribunal instead;
... [a] more radical argument sees the creation of some tribunals as a symbolic means of giving the appearance of legality in a particular area in order to render more palatable unpopular changes in the substantive benefits to which individuals were entitled. ... [it was] argued that appeals machinery introduced in the [UK] Unemployment Act 1934 was designed to defuse opposition to cuts in benefits by directing it into channels where it could be controlled and have a minimal effect.[42]
Whilst Legomsky and Craig hold similar positions about “speed of decision” and the particular benefits specialist courts and tribunals can bring in this area, the other arguments put forward by Craig raise matters that were not previously identified by Legomsky in his analysis of the factors which “point toward specialized adjudication for a given group of cases”.[43]
To avoid the temptation for further pragmatic growth in the number and variety of specialist courts and tribunals, the Law Commission has identified two questions that “could usefully be asked by policy makers at the outset”, as the basis for a more principled approach to the issue, namely:
Can this matter be dealt with through the ordinary mechanisms of the general courts? Are there compelling reasons related to subject matter or process which require a tribunal?
If it is thought that a tribunal is required, can an existing tribunal deal with this matter, rather than creating a new one? We suggest that in the future, this is a decision in which the President of the unified tribunal framework should play an important advisory role.[44]
However, how far these safeguards will go toward preventing the cynical abuse of the tribunal system identified by Craig in his “radical” argument, will be a test of time. Certainly, the UK experience of consultation with the umbrella body of the Council on Tribunals in relation to the creation of new tribunals has not been uniformly observed.
Since the mid-20th century various attempts have been made to reform the tribunal system both in the UK and New Zealand. Given the similarity in the administrative traditions in these jurisdictions, the reforms in the UK provide a useful background to the debate in New Zealand. To date the “reforms” have been successful only in part.
The Franks Committee made a number of recommendations in relation to the UK tribunal system:
Tribunal should be regarded as part of the machinery of adjudication rather than as part of the machinery of administration;
Lord Chancellor should be responsible for appointment of tribunal chairmen, other tribunal members should be appointed by the Council on Tribunals;
Council on Tribunals should formulate procedure for particular tribunals;
Reasoned decisions should be given by tribunals setting out the findings of fact and informing those persons affected by the decision of any right of appeal;
Provision for appeals on fact, law, and merits from first instance tribunals to an appellate tribunal, unless the first instance tribunal “was particularly well qualified”.[45]
In practice the recommendations as to appointments and appeals were not adopted in full. This resulted in some tribunal members being appointed by the Lord Chancellor and others by the Minister responsible for the matters which the tribunal was established to supervise. Rights of appeal were also generally limited to appeals on a question of law to the High Court. No uniform procedure was established for tribunals by the Council on Tribunals. Additionally, consultation with the Council on Tribunals about establishment of new tribunals appears to have been sporadic. On occasion insufficient time has been allowed for the Council to provide a reasoned submission to the government on the issue of whether jurisdiction should be assigned to an existing court or tribunal or whether a new tribunal should be established to deal with the particular matter of concern.[46]
The Leggatt Report[47] again considered the need to review the UK tribunal system and made a number of recommendations:
Establishing a Tribunals Service, organised on a regional basis, divided into subject matter divisions, presided over by a High Court judge;
Rights of appeal from first-tier tribunals would be provided to a single appellate tribunal;
Further appeals, by leave, would be provided to the Court of Appeal on points of law;
Judicial review of first-tier tribunals would be precluded, unless appeal rights have been exhausted, and the ability to challenge decisions of the appellate tribunal by judicial review in the High Court would be prohibited.[48]
The UK Government has given a commitment to implement the recommendations in the Leggatt Report by establishing a unified tribunal system on a rolling basis. It has indicated that the first tribunals to be amalgamated into the new system would cover matters such as immigration, employment, criminal injuries compensation, mental health, social security, tax, special educational needs and disability, pensions, and land valuation. Other tribunals are to be amalgamated into the new system over time.[49]
Overall, the attempts made to reform the tribunal system in the UK foreshadow the recommendations made by the Law Commission in New Zealand in the documents referred to below. In particular, the proposed “umbrella” structure has to varying degrees been the subject of positive comment by the Franks Committee and the Leggatt Report. When viewed in the wider Commonwealth context alongside recent developments in Australia, the reforms establish a trend in the development of administrative law which may be difficult for New Zealand to resist.
Previously the Legislation Advisory Committee (“LAC”)[50] considered the New Zealand experience with specialist courts and tribunals and recommended that:
... New Zealand tribunals should be ordered in larger clusters, beginning with three major tribunals encompassing 20 distinct jurisdictions. One would be concerned with welfare, another resources and a third revenue. The LAC saw licensing and indecent publications as two other areas worthy of major tribunals.[51]
More recently, the Law Commission has been active in relation to review of the courts system (including tribunals) and has produced a series of three documents on the topic. The findings of the Law Commission based on the consultation exercise in the first two preliminary papers are likely to exert a strong influence on the future structure of New Zealand specialist courts and tribunals. The Law Commission process has been informed, in particular, by attempts to reform the tribunal system in the UK and Australia.
In 2002 the New Zealand Law Commission began a consultation process on the future of the courts system with publication of the preliminary paper Striking the Balance.[52] One of the matters considered was the administration of specialist courts and tribunals.
The paper noted the fragmented and pragmatic manner in which tribunals had been constituted over the years in response to specific issues and the lack of any standardised processes. In particular, the paper noted the response developed in Victoria to such issues where an umbrella body, the Victorian Civil and Administrative Tribunal (“VCAT”), has been established:
The benefits of an arrangement like VCAT include detachment from the agencies or organizations whose decisions are being challenged, a better use of resources, and a higher standard of process. The integrity of the system and the reality of independence have real bite.[53]
The paper also noted the benefits to be derived from specialist courts, namely:
Over the years, a number of specialist courts have developed to hear particular types of cases such as family disputes and employment problems, and environmental matters. This has benefits in that a multi-million dollar planning case heard in the Environment Court may well require different expertise and processes than a case about child custody heard in the Family Court.[54]
The Law Commission returned to these issues later in 2002 with publication of a second preliminary paper Seeking Solutions. The paper considered a number of specific issues in relation to tribunals.
In response to the question “Why we have tribunals” the document noted that:
Tribunals resolve disputes between individuals and between citizens and the state. They provide specialist, speedy, less formal and less expensive justice in matters that do not require full court treatment. They also resolve problems that call for special expertise such as claims over accident compensation or objections to tax assessments.[55]
Next, the Law Commission looked at “What tribunals should decide”. The paper noted the diverse range of decision-making options currently found in New Zealand tribunals. For example, the Deportation Review Tribunal determines appeals on the basis of the facts, the Waitangi Tribunal investigates matters and makes recommendations to the Government, and the Environment Court is frequently required to make decisions “involving the interpretation of law” and is presided over by a judge.
In relation to the linked question of “Who should decide” cases coming before tribunals, the Law Commission noted that:
Lawyers or judges are best suited to make decisions that involve the interpretation of the law. Elected officials are best suited to make decisions with high policy content. Decision-makers, who have specialist knowledge, are best suited to decide issues that require specialist expertise.[56]
When considering the question of “How tribunals should decide” the Law Commission noted the views expressed by submitters in response to the questions asked in the previous paper Striking the Balance. For example, most submitters:
... supported formal rules in complex cases, or those with potential to affect individual rights seriously. But ... saw advantage in more informality, relaxed rules of evidence, and a more investigative enquiry.[57]
In relation to administrative support, the paper again noted the diversity found in existing arrangements. For example, twenty-four tribunals were administered by the Ministry of Justice (now Department for Courts), whilst other tribunals either had independent arrangements for their support or were dependent for their administration on the Government departments and agencies which they supervised.
The paper then asked the question “What we could do” in relation to administrative support for tribunals. The Law Commission looked at this question against the background of experience in other jurisdictions. The success of the Australian experience in amalgamating a number of tribunals under the umbrella of VCAT was noted again, together with similar recommendations for reform of the tribunal system in the United Kingdom found in the Leggatt Report.
The structural options considered included “No change”, “Consolidation of tribunals” into three topic based tribunals (welfare, resources, and revenue) as previously suggested by the LAC in 1989, and the creation of a “Super-tribunal”. Most submitters appeared to support establishment of a “Super-tribunal” similar to the Australian experience with VCAT. In particular, submitters were critical of existing arrangements where tribunals are administered by the Government department or agency they are set up to supervise:
They stressed the importance of impartial decision-making, and the removal of any perception of bias. Such perceptions could undermine public confidence in the tribunal system.[58]
Procedure followed by tribunals was considered next. The paper noted that the Leggatt Report had “recommended a single consistent procedure for all tribunals” in the UK. In addition, the paper also noted previous reviews of procedure by New Zealand tribunals carried out by the LAC which had resulted in the publication of “a non-binding statement of principles” in 1991.
The final question considered by the paper in relation to the review of tribunals was “Appeal options”. Again, current arrangements exhibit a wide diversity of approach including tribunals whose decisions are final and not subject to appeal, tribunals where a right of appeal to another tribunal is provided, and tribunals where the right of appeal is justiciable before the courts. Here the Law Commission asked:
... whether appeal rights are necessary at all. Judicial review of a tribunal decision is always possible if the tribunal is exercising a “statutory power” of decision-making or is exercising a power that is “in substance public” or has “important public consequences”. However, it can involve litigants in considerable expense and is subject to court timetabling delays.[59]
It then noted that:
If some form of appeal is necessary further questions arise, such as whether there is any good reason for the current proliferation of differing appeal rights and how many tiers of review there should be.[60]
Subsequently, in March 2004, the Law Commission issued its report on the review of New Zealand courts and tribunals, Delivering Justice for All. Building on previous work in the two preliminary papers, the Law Commission has concluded that:
... for all aspects of tribunal justice to be coherent and accessible, the approach should be to create fewer and stronger tribunals by amalgamating or grouping existing tribunals according to their functions. In contrast to the LAC approach, we consider that these clusters can and should be integrated within a single entity. The VCAT model is both desirable and achievable in New Zealand. Most New Zealand tribunals should be integrated within a unified tribunals framework.[61]
The proposal for a new tribunal structure does not, however, mean that diversity between tribunals will be sacrificed. For example, the report noted:
This is not to suggest that all tribunals should become the same. Clearly, there will be significant differences between many tribunals, as their functions and the processes and membership they require may be very different. Where there is a principled reason for diversity it should and can be maintained within the unified tribunal framework. But the unified structure will help to reduce needless difference, and allows tribunals to benefit from each other’s experience.[62]
The Law Commission considered that the benefits of the proposed new tribunal structure are likely to include:
The process of clustering individual bodies within the structure, and standardising processes and rationalising membership, will be incremental. Even tribunals which continue to operate very much as they do at present can still derive advantages from being within the framework, in terms of accessibility, administration, support, and potential for cross-membership.[63]
Certain tribunals, however, are to be excluded from the proposed new “unified” tribunal structure. These include a “free-standing” Waitangi Tribunal, and the Disputes Tribunal and the Tenancy Tribunal which, due to the nature of their work, are to become divisions of the proposed Community Court.
A hallmark of the new structure will be “the opportunity it affords to make processes uniform and more accessible”. However, it was suggested that this approach should not preclude diversity where appropriate:
We commend the model used in Victoria, where the essential elements are prescribed generally, but the necessary particular processes of individual jurisdictions are respected and promoted. A rules committee with wide discretion and powers would be essential.[64]
One exception from the general rule in favour of diversity of process concerns the availability of appeal rights. Here the Law Commission recommended that:
... the unified tribunals structure includes an appellate panel from the outset, to deal with first appeals from decisions of tribunals within the framework, on matters of fact and/or law according to the primary statute establishing the primary statute establishing the particular tribunal. A further appeal to the High Court (sitting as a full bench of two judges) would also exist, with leave, on a matter of law only.[65]
In addition to the advantages identified above, the proposed new tribunal structure would also finally divorce some tribunals from reliance on the Government department or organisation they are intended to supervise on appeal (for example, the Deportation Review Tribunal, which currently relies on the Department of Labour for administrative support). This should provide a “neutral administrative base” for all tribunals within the new structure. Indeed, the Law Commission observed:
Those tribunals in all probability function independently. Their members are unlikely to ever to consider themselves captured by their host agency. But do they enjoy the full confidence of those whose appeals they hear? There is a risk they may be seen as just another tier of departmental officers, working to a fixed policy, merely vindicating the decision under appeal.[66]
Most recently, in September 2004, the Government released its response to the Law Commission report.[67] Whilst the Government is not in favour of radical changes to the Courts structure, it is committed to supporting a unified tribunal framework. In particular, the Government made the following statement on the administration of tribunals:
The Government acknowledges that, in some cases, the housing of a tribunal in a related Department or Ministry may lead to the perception of lack of independence. Where, as part of the consideration of a tribunal against the proposed guidelines, a potential perceived lack of independence is established, that tribunal will be treated with some priority for consideration of transfer to the Ministry of Justice. This will include consideration of tribunals highlighted by the Commission, including the Removal Review Residence Appeal and Refugee Status Appeals Authorities.[68]
No specific changes are proposed by the Government in relation to the Environment Court independent of the RMA review process.
The Law Commission paper Striking the Balance noted that some tribunals:
... like the Town and Country Planning Tribunals have developed into the full scale Environment Court where there are specialist judges who sit permanently and have developed their own approaches and processes.[69]
The Environment Court therefore provides an interesting example of the development of specialist courts and tribunals. Originally established as the Town and Country Planning Appeal Board under the Town and Country Planning Act 1953. it has made the transition from an Appeal Board to become a Tribunal under the Town and Country Planning Act 1977 (“TCPA 1977”), and most recently to become a full scale Court under the Resource Management Amendment Act 1996 (“RMAA”). Before 1953 the Minister of Works was responsible for determining appeals under the Town and Country Planning Act 1926.
From the outset the composition of the Town and Country Planning Appeal Board recognized the technical nature of the decisions that would need to be made in response to appeals against local authority decisions relating to the subdivision and zoning of land. For example, when reviewing the development of the planning appeal system Judge Sheppard (formerly Principal Environment Judge) noted that:
It was recognized that the Appeal Board would be dealing with matters largely of a technical nature; and that the chairman, as well as having a barrister’s knowledge of the law, and being a judicial person, would need to have some general idea of the operations of town planning and local body administration. The members [of the Appeal Board] from the Municipal Association and the Counties Association would be selected for their local body knowledge, particularly of town planning. The chairman of the local town-planning committee would be suitable. An architect or a town planning officer would be of great value. Although the Board would have a great deal of legal work to do, its members would also require a general knowledge of administration.[70]
The purpose of the Town and Country Planning Appeal Board was “to preserve the rights of the individual”[71] against administrative action by local government. There has been little change in the composition of the Court which normally consists of a Presiding Judge sitting with two Environment Commissioners who are appointed as a result of their experience in resource management matters.
The jurisdiction of the Town and Country Planning Appeal Board was expanded following enactment of the Water and Soil Conservation Act 1967. The significance of this event was noted by Judge Sheppard:
What would prove to be a significant event in the development of the jurisdiction was the enactment of the Water and Soil Conservation Act 1967. Providing for the first time a coherent system for controlling the taking, discharge, and damming of [sic] nature water, the Act (as reported back from select committee) also empowered the Appeal Board to hear appeals from decisions of regional water boards. The original proposal had been for appeals to the National Water and Soil Conservation Authority, but the select committee had decided that the Appeal Board was the type of authority that would be right to protect the rights of the individual, and designed to bring about the correct use of land and the multiple use of water. The addition of that jurisdiction to the land use planning jurisdiction conferred by the Town and Country Planning Act 1953 provided the basis for evolution to the broader environment court functions of the Planning Tribunal.[72]
Subsequently (in term of the TCPA 1977), the Town and Country Planning Appeal Board was replaced by the Planning Tribunal following “a full review and consolidation” of the legislation. The standing of the Planning Tribunal was also enhanced by its formal designation as a Court of record “which, in addition to the jurisdiction and powers conferred on it by [statute] ... shall ... have all the powers inherent in a Court of record”.[73] Following the coming into force of the Town and Country Planning Amendment Act 1983 the chairmen of the various divisions of the Planning Tribunal were re-designated as Planning Judges.
The Planning Tribunal was re-named the Environment Court by the Resource Management Amendment Act 1996 (“RMAA”), and the Planning Judges and Planning Commissioners were re-designated as Environment Judges and Environment Commissioners.[74] At the same time the jurisdiction of the Court was expanded by amending s 278 of the Resource Management Act 1991 to provide that the Environment Court and Environment Judges had the same powers that a District Court had in the exercise of its civil jurisdiction.[75]
The effect of this provision has been most readily observed in relation to the range of interlocutory orders which can be made by the Court in relation to the management of proceedings. Such orders include discovery and security for costs.[76]
More recently, the Law Commission has recommended that the Environment Court should become part of the Primary Court structure “due to the public importance and complexity of a significant proportion of the work that comes before it”.[77]
In his review of the planning appeals system Judge Sheppard concluded that the establishment of the Environment Court has been a notable success. He stated that:
Over forty years of hearing and deciding appeals, the Tribunal has established a practice of open and patient hearings, and reasoned decisions that have normative value for primary decision-makers and professional advisers. As envisaged in 1953, it continues to travel all parts of the country, view schemes, hear evidence in the locality, and give decisions. It continues to hear appeals about subdivisions, and to decide questions of a technical nature. That the Tribunal has been entrusted with increased jurisdiction and judicial powers demonstrates the acceptance in this country, as elsewhere, of a multi-disciplinary specialist court to review planning and resource management decisions on the merits. The original intentions when the Appeal Board was first set up have been fulfilled and have been surpassed.[78]
Whilst a cynical person could regard these comments as self-serving, it is of note that Grant has also identified a high level of satisfaction regarding the work of the Court from a wide range of stakeholders.[79] For example, he observed that:
We encountered a common perception amongst the practitioners and groups we spoke to that the calibre of the judges is high, and the intellectual standards of the Court more than satisfactory. The calibre of its decision-making is seen as being on a par with the High Court, and this is probably borne out in the relatively low success rate of appeals to the High Court from the Environment Court.[80]
However, since 1991, the Environment Court has come under pressure from increased workload, and has been subject to criticism about delays in the processing of appeals. The number of cases waiting for a hearing rose from 500 in 1993/94 to a peak of 3,000 in 2000/01. The increase in workload arose primarily from appeals lodged against district and regional plans prepared under the RMA, which accounted for 51% of the Court’s workload. Increasing dissatisfaction with the speed of decision-making by the Court during this period was not surprising, given the historic under-funding of the Court by previous Governments. Subsequently, as noted below, a funding package of $1.2 million per year for a period of four years announced in May 2002 has increased the capability of the Court by enabling the appointment of additional judges and the provision of enhanced administrative support. However, notwithstanding these initiatives and the consequent reduction in the number of cases waiting for a hearing, criticism of the decision-making process under the RMA continues.
On 12 May 2004 Associate Minister for the Environment, David Benson-Pope, launched a review of the RMA. One of the improvements which the RMA Review has focused on is “[i]mproving the consent decision making process”. In particular, the scope document noted that:
The concerns about consent decision making include lack of consistency between councils; delays and costs; lack of clarity and certainty for applicants; abuse of the process for personal gain, trade competition, or other vexatious reasons; and lack of clarity and consistency about consultation requirements.[81]
Release of the scope document was followed by intense speculation in the media as to the detail of improvements that should be made to the RMA, with both the Labour and National Parties raising the issue of de novo appeals to the Environment Court, and questioning whether the scope of the appeal process should be changed. Specific concerns have focused on transport and energy projects. For example, Improving the RMA A Progress Report on Achievements, released by the Ministry for the Environment in May 2004, noted that the demise of Project Aqua had led to claims that the Resource Management Act was a disincentive to investment in large projects.[82]
Concern about delays in consent-processing in relation to major projects may, however, be overstated. For example, Fixing the Resource Management Act, released by the Ministry for the Environment in October 2003, noted that such projects are “the exception rather than the norm with around 3-6 projects nationally per year”.[83] The document also indicated that concerns about delays are not clearcut. For example, it noted that “considerable delays result where the issues that arise are not proactively managed”.[84]
Proposals to improve the RMA were announced by the Associate Minister on 15 September 2004, and a series of eight information sheets detailing proposed changes to the RMA were released by the Ministry. The overview noted that:
Many of the problems have been dealt with by previous amendments to the Act, improvements in the Environment Court and sharing of best practice among councils. However, other concerns were identified during consultation with business, local government, environmental organizations and the wider community.[85]
However, Feedback from business and non-governmental organizations at Improving the RMA meetings, June 2004, posted on the Ministry’s website, recorded that concern about de novo hearings in the Environment Court in relation to consent decision-making was raised by only one of three discussion groups at the industry meeting in Auckland on 30 June 2004.[86]
The Summary of written feedback about improving the RMA, also posted on the Ministry’s website, recorded a more balanced view. Some respondents held the view that de novo hearings took too much time and money, and suggested that a “focused hearing approach” be adopted.[87] Other respondents, however, considered that “the scope of the Environment Court should not be reduced”, and that “the Environment Court should not be limited to considering points of law”.[88]
Notwithstanding the lack of a clear mandate for changes to Environment Court procedure from the “four month” review process, the proposals to improve the RMA, announced on 15 September 2004, reported that the Government had decided that some legislative changes were needed to reduce further the length and cost of the hearing process at the Environment Court. In particular, it was proposed that the Court would be required, as a matter of statute, to have regard to the Council’s decision and conduct a hearing that only focused on matters in contention. This would replace the presumption in favour of a fresh hearing (de novo) which did not refer to the council’s decision. It is, however, submitted that the proposals for improving decision-making in the Environment Court are based on a fundamental misconception about how such hearings are conducted in practice, and how the Court views evidence about Council decisions.
This can be illustrated by the decision of the High Court in Westfield (New Zealand) Ltd v Hamilton City Council.[89] Here the High Court was required to consider an appeal from the Environment Court on a question of law under section 299 of the RMA. It was alleged that the Court had failed to conduct its own inquiry under section 32 of the RMA (which imposes a duty to consider alternatives) before confirming rules in the proposed district plan which provided for retail shopping malls in the commercial services and industrial zones as controlled activities. Westfield argued that “unrestricted retail activity” would give rise to adverse traffic effects, and that “more restrictive” rules providing for retail activity as a discretionary activity should be adopted. To determine this issue Fisher J was required to consider the nature of de novo hearings in the Environment Court. He found that:
It is ... true that hearings in the Environment Court are rehearings conducted de novo. However the Court does not have to ignore the fact that Council officers and the Council had already covered the same ground. The evidence the Council broadly conveyed to the Court regarding the Council’s own investigations and conclusions with respect to a proposed plan itself represents fresh evidence before the Environment Court. The Court is entitled to rely upon that evidence in the absence of specific issues to which their attention is drawn. The Court is not expected to conduct the type of broad-ranging inquiry that would have been appropriate if the whole exercise were approached afresh.[90]
The decision of the High Court in Westfield provides interesting and timely commentary on the nature of de novo hearings in the Environment Court in the context of the current RMA review. However, the decision is not surprising from a practical perspective as the scope of a hearing will in practice be defined by the relief sought in the notice of appeal. Similarly, evidence given during the hearing will be directed to support the grounds of appeal or will be tendered by other parties to rebut the evidence given by the appellant. As a result, whether a particular matter is put in issue before the Court will usually be determined by the parties rather than the Court.
More importantly, whilst the proposals for improving the RMA acknowledge that “there has been a substantial reduction in the backlog of cases awaiting a hearing in the Environment Court from over 3,000 in 2001 to around 1,400 in 2004”, no account has, in reality, been taken of more recent improvements in Environment Court procedure due to their recent vintage.
First, the number of cases waiting for a hearing in the Environment Court has been halved from 3,000 to 1,498 since May 2002 following the provision of additional funding of $1.2 million per annum for a period of four years to increase the number of Judges and Commissioners, and to ensure that each Judge is assisted by a Case Manager and a legally qualified Hearing Manager. Secondly, the use of digital audio technology has also reduced hearing time by 30-40%. Thirdly, the introduction of Case Management in April 2004 should result in the majority of cases being heard within 6 months of the appeal being lodged. Fourthly, the increased provision made in the RM Amendment Act 2003 for Environment Commissioners “to sit alone to hear and decide cases” also has the potential to increase the Court’s ability to dispose of cases expeditiously still further. Fifthly, the announcement of changes to Civil Court Fees on 1 June 2004 may provide a disincentive for vexatious and frivolous objectors to pursue appeals or become parties to proceedings before the Environment Court. For example, the filing fee is to be increased to $245 for both appellants and section 274 parties, and appellants will be required to pay a hearing fee of $440 per day for the duration of the hearing. Finally, the information sheet also noted that the Court proposed to issue “practice notes” on the use of Environment Commissioners sitting alone and on when alternative dispute resolution processes (mediation and arbitration) were to be used.
When viewed against the background of these improvements, the proposals in the current RMA Review process that there should be a move away from de novo hearings by the Environment Court are not warranted. Such a move would also reverse the trend to make Local Authority decisions more transparent and susceptible to review by the courts established during the 20th century.
It also remains unclear what, if any, monitoring is proposed in terms of assessing the impact of the new systems and procedures introduced by the Court since August 2003. In the absence of empirical evidence about the success or failure of these measures it will be difficult to determine with precision what, if any, legislative changes are required to improve decision-making in the Environment Court.
It is clear from the work of Legomsky that there are compelling reasons for assigning jurisdiction to specialist courts and tribunals in appropriate cases, particularly where large complex statutes such as the RMA need to be administered consistently throughout the country. The documents produced by the Law Commission on the courts system, together with the work done overseas by the Leggatt Report and VCAT, indicate strong grounds for making changes to the current tribunals system in New Zealand in terms of administrative efficiency. Beyond that, however, there are no compelling arguments for imposing a single solution on all specialist courts and tribunals in terms of jurisdictions or procedure.
Whilst there is no evidence of political interference in the New Zealand tribunal system, the historic lack of funding in relation to the Environment Court shows that lack of financial independence can place real strains on the system and lead to significant delays. Given the importance attached to speed of decision-making, it is reasonably clear that there is a strong relationship between funding and the rate at which cases can be determined.
As a result, public perception about the effectiveness of the remedies provided under statute will be a reflection of the adequacy of funding provided by the Government. For example, recent initiatives in the Environment Court demonstrate the gains that can be made in terms of speed of decision-making when adequate funding is provided. However, the historic under-funding of the Court in the period before May 2002, relative to its increased case load under the RMA, also demonstrates that public dissatisfaction can become entrenched and difficult to dispel notwithstanding the efforts made to improve matters. This is a lesson which may have been learned the hard way with the Environment Court. As a result, in terms of public perception, the key to success for the new “umbrella” structure proposed by the Law Commission and the Government for the majority of specialist courts and tribunals may therefore lie in adequacy of funding.
[*] FRSA, Legal Associate RTPI, Barrister (Lincoln’s Inn & New Zealand), Senior Lecturer in Law, University of Waikato.
[1] Joseph, P Constitutional and Administrative Law in New Zealand (1993) 656.
[2] Taylor, A J P English History 1914-1945 (1977) 1.
[3] Joseph, supra note 1.
[4] Law Commission, Striking the Balance PP51 (2002) 78-90.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] The Department for Courts was disbanded on 1 October 2003, and its work in this area has subsequently been undertaken by the Department of Justice.
[11] Department for Courts, Annual Report for the Year Ended 30 June 2002 8.
[12] Ibid, 19.
[13] Ibid, 23.
[14] Legomsky, S H Specialized Justice – Courts, Administrative Tribunals and a Cross-National Theory of Specialization (1990) 20-32.
[15] Finnie, W “Recent Literature” Juridical Review (October 1991) 261.
[16] Sainsbury, R “Book Reviews” Public Law (Summer 1992) 349.
[17] Legomsky, supra note 14, at 33.
[18] Ibid, 22.
[19] Ibid.
[20] Ibid, 23.
[21] Ibid, 24.
[22] Ibid.
[23] Ibid, 25.
[24] Ibid.
[25] Ibid, 26.
[26] Ibid, 26-27.
[27] Ibid, 27-28.
[28] Ibid.
[29] Ibid, 28.
[30] Ibid, 29.
[31] Ibid.
[32] Ibid.
[33] Ibid, 30.
[34] Ibid, 31.
[35] Ibid.
[36] Ibid.
[37] Ibid, 31-32.
[38] Craig, P P Administrative Law (2003) 253.
[39] Legomsky, supra note 14, at 32.
[40] Law Commission, supra note 4, at 50.
[41] For the first argument put forward by Craig, see discussion under “Speed of decision” above.
[42] Craig, supra note 38, at 253.
[43] Legomsky, supra note 14, at 33.
[44] Law Commission, supra note 4, at 293-294.
[45] Report of the Committee on Administrative Tribunals and Enquiries Cmnd.218 (1957).
[46] Craig, supra note 38, at 255-257.
[47] Tribunals for Users – One System, One Service (2001).
[48] Ibid, paras 5.3-5.4 & 6.3-6.4.
[49] Craig, supra note 38, at 273.
[50] Legislation Advisory Committee, Administrative Tribunals (1989).
[51] Law Commission, Delivering Justice for All Report 85 (2004) 286.
[52] NZLC PP51
[53] Law Commission, supra note 4, at 51.
[54] Ibid, 50.
[55] Law Commission, Seeking Solutions PP52 (2002) 197.
[56] Ibid, 198.
[57] Ibid.
[58] Ibid, 204.
[59] Ibid, 206.
[60] Ibid.
[61] Law Commission, supra note 51, at 288.
[62] Ibid, 288-289.
[63] Ibid, 289.
[64] Ibid, 294.
[65] Ibid, 298.
[66] Ibid, 296.
[67] Ministry of Justice, Government Response to Law Commission Report on Delivering Justice for All (2004).
[68] Ibid, 51-52.
[69] Law Commission, supra note 4, at 50.
[70] Sheppard, “Forty Years of Planning Appeals” (May/June 1995) Resource Management News 20.
[71] Ibid.
[72] Ibid.
[73] RMA, s 247; RMAA, s 6.
[74] Ibid.
[75] Ibid, s 14.
[76] The power to award security for costs was subsequently repealed by the RMAA 2003.
[77] Law Commission, supra note 46, at 219.
[78] Sheppard, supra note 63, at 25.
[79] Grant, M Environmental Court Project: Final Report (1999), paras 4.2, 4.6.2, & 4.13.1.
[80] Ibid, para 4.6.2.
[81] Ministry for the Environment, RMA Review Scope Document (May 2004) 2.
[82] Ministry for the Environment, Improving the RMA A Progress Report on Achievements (May 2004) 2.
[83] Ministry for the Environment, Fixing the Resource Management Act (October 2003) 2.
[84] Ibid.
[85] Ministry for the Environment, Improving the RMA – Overview (September 2004) 1.
[86] Ministry for the Environment, Feedback from business and non-governmental organizations at Improving the RMA (June 2004) 3.
[87] Ministry for the Environment, Summary of written feedback about improving the RMA 4.
[88] Ibid.
[89] High Court, Hamilton, CIV2003 485 000953, 54, & 56, 17 March 2004.
[90] Ibid, para 40.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/WkoLawRw/2004/2.html