week twelve

Question 1

do we utilise specialist justice in NZ

Answer 1

yes, we have specialist courts (family court, Maori land court, environment court) and tribunals (taxation review authorities, ACC appeals authority, disputes tribunal).

These undermine the traditional Dicey unity of the legal system idea of one law applying across the whole system

Question 2

what is a tribunal

Answer 2

a form of specialist justice that deals with specific issues that don’t need to be heard in the general courts. They are adjudicative (make decisions), independent and not part of the judiciary. they can be both part of the administrative justice system and subject to it

Question 3

why do we have tribunals?

Answer 3

you don’t need all the panoply of rules that apply to the formal courts structure for most disputes - don’t need Rolls Royce justice system for mini disputes.

Tribunals are more procedurally flexible, can be simplified, focused on the dispute before them, more inquisitorial, ask questions, be faster, reduce costs, speedy resolution

Question 4

what are some features of tribunal procedures

Answer 4

procedures are set by the tribunals themselves. there are few/no rules of evidence, no (or limited use of) precedent, less adversarial and more inquisitorial, sometimes investigatory, generally no need for legal representation although there is more legalisation happening.

judges often bring legality with them by sitting on the tribunals though

Question 5

what are the 3 types of tribunals, under the law commission definitions

Answer 5

1. inter-partes
2. regulatory/professional
3. administrative

Question 6

why do we have administrative tribunals

Answer 6

• administrative decisions often not suited to adversarial court structure
• courts are expensive
• issues are minor
• individual vs state = unfair resources, tribunals balance this out more
• judicial review remedied are quite narrow, they can only force the decision to be retaken, something to be done or something not to be done. people just want the wrong righted.
• political reasons: avoiding unpopular decisions and avoid the courts

Question 7

how many administrative tribunals are there in NZ and what are some examples of them

Answer 7

17, created by statute to review decisions of the executive branch. Includes Tax Review Authority, Immigration and Protection Tribunal, State Housing Appeal Authority

Question 8

what are some critiques of the NZ system of tribals

Answer 8

• lack of coherance - differ in procedures and approaches (nothing like super tribunal/umbrella structure of Victoria or the Tribunals and Inquiries Act of the UK)
• lack of clarity in relation to access and use, with many people not knowing they exist
• lack of independence - they are kind of associated with the judiciary and most are under the authority of an executive department, which can cause conflict when the issue being decided is run by the body in the decision making process

Question 9

did tribunal reform happen in nz

Answer 9

no, it was proposed in 2004 but the national government came in and didn’t take the project forward. Although, we do now have the Tribunal Powers and Procedures Legislation Bill 2017 but this is only a basic structure

Question 10

are tribunals cheap courts

Answer 10

no, they have a different form and function and are specifically suited to administrative decision making (with multi-faceted and merit based review). The procedures are flexible

Question 11

what are the similarities between inquiries and tribunals

Answer 11

• both outside judiciary

- both executive

Question 12

what are the differences between inquiries and tribunals

Answer 12

inquiries are not dispute resolution mechanisms

Question 13

just because something is called a tribunal or an inquiry, __ __ __ ___, eg?

Answer 13

doesn’t mean it is, e.g. Waitangi Tribunal doesn’t make decisions and Commerce Commission Inquiries do make binding decisions

Question 14

what do inquiries do

Answer 14

find out the information and truth, investigate are inquisitorial and then publish a report or facts (never making a decision)

Question 15

what are the two uses of inquiries as non-deciding bodies in public law

Answer 15

• supply general policy information to law makers (if something is complex to get advice or politically sensitive so they want to give it to an inquiry)
• investigate a particular incident and figure out what went wrong

they give an independent examination of the issues

Question 16

what two types of inquiries are there under the Inquiries Act 2013

Answer 16

public inquiries - established by the Governor General

government inquiries - internal to the executive

Question 17

what is the chair of an inquiry able to do

Answer 17

within the terms of reference established for that inquiry, they can can undertake whatever they want

Question 18

how does the chair of an inquiry often interpret the government set terms of reference

Answer 18

often the terms are drawn narrowly but the chair will interpret them quite flexibly

Question 19

what is an offence for breach on inquiry

Answer 19

Contempt of inquiry - a small offence for not coming before an inquiry or producing documents or information you have where you have been asked to do so

Question 20

are inquiries judicially reviewable?

Answer 20

yes

Question 21

on what grounds are inquiries judicially reviewable

Answer 21

• in relation to its procedures

- going beyond its jurisdiction (ultra vires)

Question 22

what was the result of the chippendale report into the Erebus disaster

Answer 22

the pilot shouldn’t have been flying at such a low altitude in poor visibility

Question 23

what was the conclusion of Mahon’s report into the Erebus disaster

Answer 23

• visibility was not poor - passenger photos taken before the crash showed this
• air nz claimed flying at a low level was unusual for these flights but this wasn’t true - pilots were expected to fly at low levels for the sightseeing experience and even the advertisement shows a plane flying below the level of the mountain
• pilots weren’t trained in whiteout conditions
• flight plan had been changed that morning to the path of Erebus and it was doomed from take-off, he said the blame lies with Air NZ not the pilot because of this
• shortcuts for safety, training and funding were taken and Air NZ had tried to cover it up. he said they lied and destroyed documents

= costs awarded against the airline

Question 24

what happened to Mahon’s conclusion of the Erebus inquiry after it was decided

Answer 24

Air NZ took it to the HC, appealed to the CA.

They said he was there to say what happened not that he lied. He was outside his jurisdiction so costs were quashed.

Mahon appealed to the PC who went even further to talk about the requirement of natural justice to look at evidence. they imposed their views on whether the evidence fitted with the conclusions and the costs were quashed and the comments struck from the record.

Question 25

how were the principles of natural justice seen in the court room of the JCPC in the Erebus appeal

Answer 25

it was a balancing act between natural justice requiring an individual to have the right to be heard when a decision is taken against them and ensuring the evidence is sufficient as it would be in a court for the decision to be reached

Question 26

according to Joseph, access to information is?

Answer 26

“the lifeblood of the liberal democracy”

Question 27

what is at the heart of administrative law

Answer 27

discretion

Question 28

the nz courts apply treaty norms when applying?

Answer 28

the principles of administrative law

Question 29

Bagehot said “Cabinet is ?

Answer 29

the body chosen to rule the nation”

Question 30

John Locke said “where law ends ?

Answer 30

tyranny begins”

Question 31

KC Davis said “where law ends ?

Answer 31

discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness”

Question 32

KC Davis said “discretion is only a tool ?

Answer 32

when used properly”