Creating a system of appeal, review, and complaint
This is a single section from Chapter 28. Read the full chapter here.
Should the legislation provide a right to appeal a statutory decision affecting a person’s rights or interests?
A person affected by a statutory decision should have an adequate pathway to challenge that decision.
Determining whether an adequate pathway to challenge a decision should involve an internal review or appeal (or both), or merely judicial review, turns on the nature of the decision and the decision-maker.
In the case of criminal proceedings, the need to provide for a right of appeal is dealt with by the Criminal Procedure Act 2011. New legislation should rely on these existing appeal rights, and not create bespoke appeal rights.
For most other decisions, the starting point is that legislation should provide a right of appeal if the rights or interests of a particular person are affected by an administrative decision. An appeal enables the merits of a decision to be re-examined through an assessment of questions of fact and the application of judgement to those facts (rather than just an assessment of the process by which the decision was made, which is what is examined in a judicial review). Therefore, an appeal should be available unless there are factors that would make an appeal inappropriate.
The value of an appeal must be balanced in the particular circumstances against a consideration of the potential costs, implications of delay, significance of the subject matter, competence and expertise of the decision-maker in the first instance, and the need for finality. However, concerns about cost and delay should usually be dealt with by limiting the right of appeal, rather than denying it altogether.