Chapter 8: Review of Decisions Impacting on Rights and Liberties: SO 327(2)(d)

I Introduction

This ground is directed at those regulations that authorise the making of administrative decisions that can affect an individual’s rights or liberties, for example a regulation requiring the granting of a licence or a permit to undertake a certain activity. The Committee may be of the opinion that this kind of decision is of such significance that an independent review on the merits of the decision should be available.

II Right of Appeal

The Committee set out its approach to this ground as part of its investigation into the Biosecurity (Ruminant Protein) Regulations 1999. It stated that:²⁶⁸

In this instance, the regulations placed an enforceable ban on feeding ruminant protein to ruminant animals, such as cows or sheep. Regulation 7 required all operators to prepare a ruminant control programme and granted the Director-General the power to suspend or cancel an operator’s business indefinitely until satisfied that the programme met the necessary requirements. The Committee took objection to the absence of an independent review on the merits of a Director-General’s decision to amend or cancel the registration of a programme. The absence of an adequate appeal mechanism meant that there was no check on the fairness or reasonableness of the decision. The Committee also found fault with the Director-General’s power under regulation 12 to request certain information regarding an operator’s programme. If not satisfied that all necessary information had been received, the Director-General was not required to make any decisions regarding the suitability of a programme. As an operator could quite conceivably have a legitimate reason for not wanting to supply the information, the Committee found that an independent review process was even more important.

In its investigation into the Legal Services Regulations 2011,²⁶⁹ the Committee affirmed that reconsideration of a matter by the same decision-maker (or one that was not materially different from the original decision-maker) using the same criteria could not constitute a formal review mechanism.²⁷⁰ In this instance, the Committee considered that the Ministry of Justice’s internal review processes were, in effect, no different to the relevant Commissioner’s initial exercise of decision making power; the rights that dissatisfied parties had regarding reviews were not specified; and the previously-existing independent review process had been disestablished. In the Committee’s view, this process was not in itself a sufficiently independent form of review for the purposes of the Standing Order.

As a general rule, the greater the impact of a decision the greater the need for independent review. In other words, the more that is at stake when a decision is made, the more likely it is that the absence of an appeal mechanism will be considered “undue”. The Committee’s investigation into the Domestic Violence (Programmes) Regulations 1996 provides a good example.²⁷¹ The complainant organisation ran anger-management programmes for men subjected to protection orders. In order to receive funding, the programme had to receive approval from a panel established by the regulations. The Committee found that a requirement that all panels operate under the rules of natural justice did not compensate for the lack of an appropriate review structure. The Committee stated that, “with funding in the vicinity of $1 million a year at stake, it is imperative that the approvals on which such funding is dependent are open to review on the merits”.²⁷²

The potential impact of an administrative decision was also a crucial factor in the Committee’s investigation into the Marine Mammals Protection Regulations 1990.²⁷³ The regulations required commercial operators who wished to transport people to view marine mammals to obtain a permit to do so. While the regulations contained a right of appeal to the Minister of Conservation for a suspension or revocation of an existing permit, there was no right of appeal for the non-granting of a permit to new applicants. The Committee pointed to the number of new applicants seeking permits and surmised that this was evidence of high expectation and interest in establishing commercial ventures for the purposes of marine mammal watching. The importance of a decision not to grant a permit to an applicant was such that a right of appeal for new applicants should have been included in the regulations.

When an administrative decision is based on criteria that are either unstated or unclear, the need for an independent review of that decision increases. In its investigation into the Marine Mammals Protection Regulations 1990, the Committee stated that, in situations where an administrative decision can affect livelihood and business interests, there must exist detailed criteria to guide and limit that decision.²⁷⁴ In this instance it was unclear exactly what factors were to be taken into account when making the decision to issue a permit for commercial marine mammal watching. Because of this ambiguity, the Committee found the regulations to have breached this Standing Order ground. For similar reasons the Geothermal Energy Regulations 1961 were considered unsatisfactory.²⁷⁵ Under the regulations the Minister of Energy had a discretion to issue licences to draw on geothermal energy in Rotorua. The Committee pointed to the absence of any mechanism to appeal a decision of the minister. This inadequacy was made worse by the fact that an applicant would have little idea in advance what criteria would be applied in granting the licence.

III Review on the Merits

An important component of this Standing Order ground is the focus on the merits of the decision. A review on the merits is to be distinguished from a review of the process that led to the decision. A body that is able to review the merits of a decision is able to make a finding that the decision was wrong in substance. A body that looks at the process of a decision only looks at whether the decision-maker took all the steps that were required to be taken before making the decision. The merit of the decision is, strictly speaking, extraneous to this inquiry.

After an administrative decision is made, an individual aggrieved at the outcome may choose to seek ‘judicial review’ of the decision from a court. Yet this remedy may be unsatisfactory for complaints under this Standing Order, because the court is, in general, limited to a review of the process and not the merits of the decision. For this reason, the Committee has on several occasions rejected the suggestion that recourse to judicial review proceedings provides an adequate appeal mechanism for an administrative decision.²⁷⁶ Recently, in its report on the Legal Services Regulations 2011, the Committee reaffirmed that, although aggrieved parties have the right to seek judicial review of administrative decisions, this right in itself does not constitute the formal, independent administrative review process on the merits of the decision, required by the Standing Order.²⁷⁷ For such reasons, the Committee recently expressed concern for the Hurunui/Kaikōura Earthquakes Recovery (Coastal Route and Other Matters) Order 2016 which excluded the right of a person with an interest in land intended to be taken for public works to object in the Environment Court, without the creation of an alternative or modified process. The ability of the affected person to seek judicial review did not prevent the Order from raising concerns under SO 327(2)(d).²⁷⁸ For the most part, then, the Committee is of the opinion that the availability of judicial review is not likely to satisfy this Standing Order’s requirement that review on the merits of a decision be available.

However, one report of the Committee provides a notable exception. Following an examination of the Fisheries (Allocation of Individual Catch Entitlement) Regulations 1999 the Committee concluded that judicial review could, in that case, provide a satisfactory appeal mechanism from an administrative decision.²⁷⁹ The regulations allowed the chief executive of the Ministry of Fisheries to allocate individual catch entitlements (ICEs) for the purposes of commercial fishing. This meant that those organisations that held a permit would be limited as to the number of fish they could catch in a specified period. The complainants were concerned that there existed no right of appeal from a decision of the chief executive regarding ICEs. In response the Committee stated:²⁸⁰

The Committee was satisfied that in this particular instance judicial review proceedings provided an adequate safety net to ensure the propriety of an administrative decision. By focusing on the ‘lawfulness’ of the decision, the Committee quite openly acknowledged that such a review would be limited to an analysis of the process surrounding the decision and not its merit.

268 Regulations Review Committee “Investigation into the Biosecurity (Ruminant Protein) Regulations 1999”, above n 208, at 12.

269 Regulations Review Committee “Complaint regarding the Legal Services Regulations 2011” (19 September 2013).

270 Regulations Review Committee “Complaint regarding the Legal Services Regulations 2011” (19 September 2013) at 6.

271 Regulations Review Committee “Complaint Relating to the Domestic Violence (Programmes) Regulations 1996” [2001] AJHR I16E.

272 Regulations Review Committee “Complaint Relating to the Domestic Violence (Programmes) Regulations 1996” [2001] AJHR I16E at 7.

273 Regulations Review Committee “Inquiry into the Marine Mammals Protection Regulations 1990” [1991] AJHR I16C.

274 Regulations Review Committee “Inquiry into the Marine Mammals Protection Regulations 1990” [1991] AJHR I16C at 7.

275 Regulations Review Committee “Report on the Committee’s Inquiry into the Geothermal Energy Regulations 1961” [1987] AJHR I16.

276 See for instance Regulations Review Committee “Complaint Relating to the Domestic Violence (Programmes) Regulations 1996”, above n 271, at 7; Regulations Review Committee “Inquiry into the Marine Mammals Protection Regulations 1990”, above n 273, at 11; and Regulations Review Committee “Investigation into the Biosecurity (Ruminant Protein) Regulations 1999”, above n 208, at 13.

277 Regulations Review Committee “Complaint regarding the Legal Services Regulations 2011” (19 September 2013).

278 Regulations Review Committee “Activities of the Regulations Review Committee in 2017” [2017] AJHR I.16D at 11.

279 Regulations Review Committee “Complaints Relating to the Fisheries (Allocation of Individual Catch Entitlement) Regulations 1999” [1999] AJHR I16P.

280 Regulations Review Committee “Complaints Relating to the Fisheries (Allocation of Individual Catch Entitlement) Regulations 1999” [1999] AJHR I16P at 9-10.