The development of administrative tribunals in many countries is associated with the increased powers of the State which the growing complexity of society and demands for social justice have caused. In New Zealand the State has long exercised functions that elsewhere were until recently, or still are, in private hands. It might be expected, therefore, that administrative tribunals would have become important at an early period. This did not happen. One reason is that earlier State intervention commonly took the form of ownership or detailed administration. Only since 1936 has there been extensive Government regulation of the economy outside the public sector, and it is here that independent tribunals abound and play a particularly important role.
Administrative tribunals may be regarded as intermediate between Courts and the ordinary administration, possessing characteristics of each. Their membership, functions, and procedure vary greatly, although in New Zealand almost all possess the powers of a Commission of Inquiry. They have in common an identifiable membership, in contrast to the anonymity of administration, and the duty to act judicially, including the obligation to hear the parties. This duty also involves freedom from Government influence in deciding particular cases, although some tribunals must have regard to Government policy directives. On the other hand, the procedure of tribunals is less (often much less) formal than that of the Courts; they are not bound by the ordinary rules of evidence and their members almost always have less security of tenure than do Judges or Magistrates.
No a priori rules exist for determining whether a function will be given to an administrative tribunal. Broadly speaking, tribunals are established to demonstrate that cases affecting the citizen's rights will be fairly decided where the ordinary Courts are unsuitable to deal with the issues involved. In this country disputes about welfare benefits are decided administratively and not by independent tribunals, a policy the justice of which is arguable. The ordinary Public Service, however, also administers many controls affecting individual property rights–for example, import and exchange controls. Grounds commonly said to justify the handling of a particular subject-matter by a tribunal rather than by a Court are that there will be a great number of petty cases; that a wide discretion is involved, especially to decide what is fair and reasonable; that the field is technical and specialised, so that the ordinary Courts are inexpert; or that the element of social or economic policy is large. The first ground has had little application in New Zealand. Nor is the superiority of tribunals over Courts in exercising discretionary powers obvious in the light of our experience. The other grounds have more validity, and most tribunals in this country have been established for one of these reasons.
Administrative tribunals may be divided into those which make a final decision affecting individuals, subject to any appeal, and those which are limited to fact finding or making a report or recommendation which need not be followed. This inquiry procedure, common and important in England, is much less significant in New Zealand. Examples here are statutory committees of inquiry into certain types of accident, and the hearing by the Minister's nominee of objections to the taking of land. The coroner's inquest is essentially of this nature, although coroners are not thought of as administrative tribunals.
Some tribunals deal with a particular subject-matter from the beginning (for instance, the Commissioner of Patents hearing an opposition to the grant of a patent, the Copyright Tribunal, the Pharmacy Authority, and the Shops and Offices Tribunal). Others hear appeals from inferior tribunals; for example, the Trade Practices Appeal Authority and the Transport Licensing Appeal Authority. Others again hear appeals or complaints against ordinary administrative decisions. The Cinematograph Films Censorship Board of Appeal, the Board of Review under the Inland Revenue Act, and the Town and Country Planning Appeal Board are examples.
Often, however, an appeal from an administrative decision lies not to an administrative tribunal but to a Magistrate, with or without assessors. This is an interesting feature of New Zealand administrative law. Among many other things Magistrates hear appeals against closing orders under the Health Act, orders under the Housing Improvement Act, nonregistration or revocation of registration of agricultural chemicals and fertilisers, refusals to grant a firearm's permit, the assessment of charges for the reception and disposal of trade wastes, refusal to register or cancellation of registration of chemists, electricians, nurses, opticians, and others. Indeed, over an extensive field Magistrates act as a sort of administrative Appeal Court.
A numerous and, economically, a most important group of tribunals in New Zealand is concerned with the licensing and regulation of particular businesses and activities. They are the counterpart of the regulatory agencies of the United States. Where the primary object is to exclude persons of bad character, licensing is entrusted to Magistrates' Courts, as in the case of auctioneers, land agents, and motor-vehicle dealers. Where, however, the predominant purpose is social or economic, special tribunals are usually established. There are notable instances in the closely regulated liquor and transport industries. Other examples are air services, cinemas, milk, petrol retailing, pharmacy, and sea fishing. But whereas brewers' licences, for instance, are issued in this way, distillers' licences are granted by the Minister of Customs. It is impossible to explain this on other than political grounds.
There are indeed many anomalies in this area, partly because administrative tribunals have come into being piecemeal without any policy or body of doctrine, partly because decisions are often made for political reasons. There seems no reason in principle why, for instance, war pensions should be granted by a tribunal with an appeal to another tribunal while other welfare benefits are not; why appeals from the Pharmacy Authority should go to the Supreme Court while transport appeals go to a special tribunal; why closing orders under the Health Act can be appealed to a Magistrate, whereas an objection to a clearing requisition by a noxious weeds inspector is heard by the local authority which employs him. Some tribunals are required to give reasons for their decisions and others need not. Qualifications and tenure of office also differ in a seemingly arbitrary way.
An appeal to the Supreme Court on the merits from a tribunal's decision is occasionally provided, but is open to objection as a general rule. Such an appeal could nullify the purpose of having a tribunal in the first place. This objection does not apply to appeals on a point of law and there seems no reason why an appeal should not lie either to the Supreme Court or to the Court of Appeal in all cases.
The importance of administrative tribunals in New Zealand's legal and governmental system is likely to increase. They play a vital part in what has been called the task of judicialising the process of administration without impairing its efficiency. The present defects of some tribunals seem accidental rather than inherent. The value and necessity of tribunals within their proper sphere are no longer seriously questioned.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.