Tribunals Powers and Procedures Legislation Bill

Madam Chair, I appreciate the committee’s indulgence. I want to spend a bit of time introducing Part 1 of the Tribunals Powers and Procedures Legislation Bill. It is an omnibus bill in two parts that makes relatively small but important amendments to the Acts governing 21 tribunals administered by the Ministry of Justice. This bill and the Courts Matters Bill form an integrated package of reforms of the courts and tribunals system.

Tribunals are expert forums for hearing and resolving disputes dealing with occupational discipline and regulation, and for reviewing decisions of Government agencies. The 21 tribunals affected by this bill provide low-cost, timely, and specialist forums for a very broad range of matters. The Tribunals Powers and Procedures Legislation Bill will improve users’ experience of these 21 tribunals by simplifying and standardising statutory powers and procedures to improve efficiency and timeliness, and by providing better consumer protection and redress and greater access to justice.

I want to highlight the principal amendments as we examine each part of the bill. Before turning to Part 1, I note that the Government’s Supplementary Order Paper 133 adds a new Subpart 20A, which transfers the amendments to the 1964 Social Security Act to the recently enacted 2018 Social Security Act without making any policy changes. It deletes the amendments to the current Social Security Act because that is to be repealed soon. It also deletes the amendments to the Customs and Excise Act 1996, which was repealed recently. These amendments have also been transferred to the new Customs and Excise Act 2018. The Supplementary Order Paper makes further amendments to better implement the policies of the bill as well as to correct errors of omission.

Part 1 of the Tribunals Powers and Procedures Legislation Bill comprises 24 subparts and makes up almost all of the bill. Part 1 contains the amendment this Government has added to the bill to address the backlog of cases that has developed in the Human Rights Review Tribunal since 2016. These amendments include authorising the appointment of one or more deputy chairpersons instead of a second chairperson, and authorising the chairperson or a deputy chairperson alone to consider appropriate matters on the papers. This will help to reduce the backlog because much of this tribunal’s work has to be undertaken by the chairpersons. In future, the deputy chairpersons will be able to perform the same functions as the chairperson.

Part 1 also provides the 21 tribunals administered by the Ministry of Justice with the powers and procedures they need to resolve matters sooner. Members will have noticed that the same amendments are repeated across several subparts. Tribunal users will benefit from the standard provisions that authorise tribunals to consider more matters on the papers and to use audiovisual link technology more often. Many tribunals have been given contempt powers to enable disruptive people to be removed during hearings. These tribunals will also have broader powers to strike out meritless proceedings and to decide matters in a party’s absence in appropriate circumstances.

Part 1 clarifies that retiring tribunal members can complete any cases that have commenced. This will ensure proceedings are not unnecessarily prolonged or delayed when changes are made to a tribunal’s membership. Part 1 will also enable tribunals to provide greater access to justice by providing a simpler, quicker, and cheaper alternative to a court case.

The disputes tribunal monetary threshold will be increased from $15,000—or $20,000, if all parties agree—to $30,000. The disputes tribunals provide a quicker, simpler, and cheaper forum than a court for resolving lower-value disputes.

The Real Estate Agents Disciplinary Tribunal will be able to award monetary compensation of up to $100,000 for financial losses arising from a real estate agent’s unsatisfactory conduct. The tribunal sanctions poor behaviour by real estate agents.

The Private Security Personnel Licensing Authority will be able to discipline unsatisfactory conduct as well as misconduct. This will allow the authority to appropriately address concerning behaviour—such as bullying by private security personnel and private investigators—that might not meet the higher threshold of misconduct.

Part 1 also addresses several anomalies in the legislation of these 21 tribunals. For example, Part 1 clarifies that monetary orders such as fines, fee refunds, and compensation ordered by the Legal Complaints Review Officer can be enforced in the District Court if they are not voluntarily paid. The Legal Complaints Review Officer sanctions poor behaviour by lawyers and conveyancers.

Part 1 also authorises insurance companies to be represented at disputes tribunal hearings by agents as well as by employees or officers. Insurance companies are parties in around one-third of all disputes tribunal cases. This change will align better with the way that insurance companies operate.

Finally, Part 1 will disestablish two rarely used tribunals: the Health Boards of Appeal and the Maritime Appeal Authority. These tribunals have not received any new cases for several years, and any future cases will be heard in the District Court instead.

I hope that helps members in the debate on the Tribunals Powers and Procedures Legislation Bill.

Thank you, Madam Chair. I rise to speak to the Tribunals Powers and Procedures Legislation Bill. As with the bill that we considered a little while ago—the Courts Matters Bill, which amended 14 Acts—this one is also all about standardising and modernising legislation to make it better and more fit for public purpose. It modernises the legislation for 21 tribunals—so, improving productivity and efficiency, amending powers and procedures—to improve users’ experience of tribunals, to make these procedures easier for the public to understand, and to reduce the length of time it takes to hear and to resolve matters. It is very difficult indeed to argue with the spirit of the intention of what this bill is doing.

The Justice Committee has heard a number of submissions on it. It has made some recommendation for changes and, in my call tonight, I intend to look at aspects of the Real Estate Agents Act, under Part 1, and also the amendments to the Human Rights Act 1993, also in Part 1. I commend the work of Hon Aupito William Sio, the Associate Minister of Justice, and he has outlined some of the changes in Part 1. I think that some of the things that he outlined, which I feel will be particularly popular with the public, are particularly around the Real Estate Agents Disciplinary Tribunal. It will be able to award compensation of up to $100,000, and that’s for financial losses arising from a real estate agent’s unsatisfactory conduct. That’s a very specific thing, and I think that, really, the public appetite for badly behaved real estate agents is very minimal.

I think that the processes for the somewhat unfortunate acronym of CACs, the complaints assessment committees, are going to be more clearly defined. So CACs, when the breach is minor or technical, don’t need to send it on to another slightly odd acronym, READT, the Real Estate Agents Disciplinary Tribunal. So overturning a CACs assessment of a breach as not qualifying for a referral is not going to be happening. I think that for members of the public and others who are interested in the way that these things can be delayed—and justice delayed is justice denied—I think that the speeding up and the clarifying of the strikeout powers that have been inserted into 13 Acts can now only be applied if the party was not present or represented at a hearing in which they were required to be.

So that makes it very straightforward, and I think the better consumer protection and redress for people with the tribunals makes it much simpler and faster and, of course, a cheaper alternative to a court case. I think that the use of tribunals—using them in a better and more appropriate and intelligent way—is a better process. Omnibus bills in two parts, as this one is, I think make a series of particularly good observations, and the standard appointment terms are part of that. I think in the past it was all a little bit ad hoc. People could be appointed, for example, to tribunals for terms of three, five, or seven years. No one particularly knew who was going to be there. When the time was up, they went. But now the provisions—eminently sensible, in my view—have standardised the appointment term of up to five years. There are multiple terms for reappointment, but I think it will be very important to make that standard provision to be inserted into 16 different Acts.

I think also, when we look at the Human Rights Act 1993, the Human Rights Review Tribunal—anyone who has tried to take a case before it, or who follows some of the high profile cases, is very well aware of the large workload of the tribunal. The provisions that have been mooted here as the changes, which have been approved through the select committee process, mean that at the moment two chairpersons can be appointed to the tribunal, and they’re responsible for dealing with almost all of the tribunal’s workload, which is why they have become so overburdened. The change to address concerns about that workload is to change many different aspects of the New Zealand Public Health and Disability Act, the Privacy Act, and the Human Rights Act to have a much more sensible provision so that we can have other individuals there—chairpersons or deputy chairpersons—for training purposes. That will allow those chairpersons or deputy chairpersons to consider alone, as opposed to just the standard procedures. So all of these are major improvements that the public will, I am sure, welcome.

Thank you, Madam Chair, for my opportunity to contribute to the Tribunal Powers and Procedures Legislation Bill. We are, of course, speaking to Part 1 of that in this, the committee stage. I’d like to follow on from the comments that Minister Sio has made and also my learned colleague the Hon Maggie Barry, who focused on a couple of the different tribunals that are amended by this legislation, and I’ll talk about amendments that are made to a couple of other bodies. But as she did, I would like to first consider some of the overarching purposes of the bill in so far as they will now enable us to assess the validity and the worthwhileness of those particular provisions in Part 1.

So, first, the aim to create—or rather update—our system such that it is a modern, efficient, and effective tribunal system, as well as the court system, fitted within the judicial branch of Government. Having an easier-to-use system and keeping pace with people’s expectations are worthwhile aims in themselves, and so while some might be tempted to consider the content of these bills that we’re looking at tonight, the Courts Matters Bill and now the Tribunal Powers and Procedures Legislation Bill, as perhaps somewhat dry in nature—one might say unkindly—in fact, they’re very important for those who would bring disputes before them.

So looking first, then, at the Disputes Tribunal Act 1988—that’s a piece of legislation that’s going to be amended by Part 1 of this bill. It includes such gems as rostering and training of referees—so, for example, a gap in the system currently, if I might describe it as that, whereby the principal disputes referee will become responsible for rostering and training referees. The recommendation of the Justice Committee—having considered the first stage, or the bill as it had been passed by way of the first reading—recommended amending a couple of clauses such that it would be the Chief District Court Judge who would be wholly responsible if the principal disputes referee position was vacant or that person was unable to perform the function. So that seems to me a useful manner of achieving a backup, essentially, in the event that that principal officer is unable to perform his or her duties for whatever reason.

Similarly, some extra thoughts have been provided by the select committee in relation to dismissing and striking out claims—a couple of section numbers, which I won’t trouble you with, Madam Chair. But, essentially, the select committee wanted the ability for the disputes tribunal, in fulfilling its functions, to be able not only to prevent the refiling of an amended claim, but also to replace the dismissal provision with the standard strike out provision. Again, there’s no reason that we can see, on this side of the committee, not to include that.

In my remaining time I will focus on the Lawyers and Conveyances Act 2006, or the part of that that’s going to be amended by Part 1 of this bill—in particular, the Legal Complaints Review Officer. And for any of those who have practiced law, the very name strikes fear into the hearts.

💬 Chris Bishop: That’s right. Ha, ha!

That’s right. I’d like to say that I’m not familiar at all with its workings, but I will move on in the interests of not straining the power of parliamentary privilege any further.

So the powers of the Legal Complaints Review Officer, particularly what we’re considering here—we’re clarifying a number of their duties and functions, including that they are able to withhold evidence or the name of any witness. So whereas the publication of materials deriving from a complaint that’s been made is in itself a good thing, there are situations that the bill contemplates and that the legislation being amended also contemplates in which suppression orders, as we might describe them, would be a valid and worthwhile. So that’s recognised, and, again, that is a change that we believe is worth supporting.

Similarly—well, similar in the sense that it’s also a procedural change—this one is actually quite a major one in numerical terms, such that orders for enforcing costs which have been awarded or fines and refunds and so forth—currently $12,000 would be heard up to the District Court and beyond that the High Court. In fact, the change will be that, actually, up to $350,000 can be heard by the District Court, so that’s in alignment with other aspects of our justice system as far as that is concerned.

Thank you very much, Madam Chair. Look, we considered the Tribunals Powers and Procedures Legislation Bill alongside the Courts Matters Bill at the Justice Committee in the last Parliament and also into the new Parliament. It’s good to see the Labour-led Government continuing with it. It’s a bit more substantive, actually, than the Courts Matters Bill, because it makes a whole, quite substantive, series of changes to the way in which our tribunals work. Members, I think, will have some appreciation of just how many disputes in New Zealand are dealt with outside the sort of ordinary court process of the District Court, High Court, and above. There’s increasing use of tribunals, as well, and so it’s very important to get this legislation right.

There are a couple of things that I want to point to that I think are very important and I praise. The first is the doubling of the monetary limit for the disputes tribunal from $15,000 to $30,000, and I’ll just make a side note here: I think it would be good if the power to increase the maximum limit for claims in the disputes tribunal could be given to the Minister or given to the Governor-General in regulation. I’ve got to say, it seems a little bit silly that we have to legislate in order to increase the monetary limit. That seems to me to be a power that could be within the Governor-General’s—so, in other words, the Cabinet’s—ambit. It’s a bit of a personal bugbear of mine that a lot of change to things like thresholds, limits, maximums, minimums, and things like that is actually in primary legislation. I think it could be perfectly well catered for in regulation. The classic, of course, is the Income Tax Act. Our colleague Michael Wood is shaking his head in despair—but the Income Tax Act’s a classic. Parliament every year has to legislate to add, say, the “Himalayan Trust Board” to the list of charities that are entitled to a tax rebate. Well, I mean, frankly, I think there are better uses of the time than, you know, the “Mount Roskill Residents Association No 2 Incorporated”—I mean, I’m sure they’d do very good work, but I don’t really think we need to waste Parliament’s time legislating. Anyway, that’s more of a side point.

The actual increase in the disputes tribunal maximum is a really important one, because over the last 10 to 15 years, of course, inflation has increased 1.5 or 2 percent a year, and more and more claims—and this was the evidence before the committee—found themselves outside the ambit of the disputes tribunal because the claims were, for example, somebody having a dispute with somebody over 20,000 bucks worth of property or $21,000 for a car; you know, a dispute there, or whatever. Basically, because of the Act, they were outside the ambit of the Act, and the law doesn’t intend for that to happen, so we’ve now increased it to $30,000.

There’s some interesting other little changes here. The Birdlings Flat Land Titles Commissioner, the Health Boards of Appeal, and the Maritime Appeal Authority are disestablished. The Health Boards of Appeal was seldom used, apparently, and given that I’d never heard of them until we started to consider this bill in the select committee, I suspect that is true.

Just a quick note on the Supplementary Order Paper (SOP) of the Government. I think the changes advanced by the Minister, Aupito William Sio, are very sensible. The particular change in clause 51(5), which is related to the increasing of the general limit of the disputes tribunal to $30,000—the Supplementary Order Paper advanced by the Minister brings all those changes into force at the same time. There was going to be a staggered introduction of that $30,000 limit across the disputes tribunal and the various other tribunals. That’s now going to be done all at the same time, and I think that makes sense. I’ve had a look through the Supplementary Order Paper of the Minister—I think it does make sense, and National does support the bill.

The question was put that the amendments set out on Supplementary Order Paper 133 in the name of the Hon Aupito William Sio to Part 1 be agreed to.

Amendments agreed to.

The question was put that the following amendments in the name of the Hon Aupito William Sio to Part 1 be agreed to:

Subpart 3 heading

delete the subpart 3 heading (page 24, line 30).

Clause 37

after clause 37(1) (page 32, after line 23), insert:

(1A) In section 2, definition of work order, replace “specified in the order.” with “specified in the order”.

Clause 163

in clause 163(8), replace “clause 9C” with “clause 9D” (page 81, line 34).

Subpart 20 heading

delete the subpart 20 heading (page 122, line 18).

Clause 306

in the heading to clause 306,replace “25A to 25C” with “25A and 25B” (page 133, line 8).

Clause 307

in the heading to clause 307, replace “sections 25D and 25E inserted” with “section 25D inserted (Online publication of information about procedures, time frames, and progress of decisions)” (page 134, line 4).

Clause 320

in clause 320(1), new section 117(ca), replace “electronically:” with “electronically; or” (page 138, line 11).

Amendments agreed to.

Part 1 as amended agreed to.

Part 2 Repeal, revocation, and amendment of enactments