Creating a system of appeal, review, and complaint
This is a single section from Chapter 28. Read the full chapter here.
Who should hear an appeal?
Legislation should identify which courts or specialist bodies will hear any appeal or complaint and new tribunals or appeal bodies should not be created if appeals or complaints could be heard by an existing entity.
Where a right of appeal from a decision (or from the internal review of that decision) is intended, the legislation should identify the body which will hear the appeal. The two general classes of appeal body are the courts of general jurisdiction (District Court, High Court, Court of Appeal, and Supreme Court) and specialist bodies and courts (such as the Social Security Appeal Authority, Environment Court, and Employment Court).
Courts of general jurisdiction are more appropriate for second appeals from specialist courts, or for first appeals where general matters of criminal or civil law are involved. A specialist body will generally be appropriate for first appeals from decision makers in narrow fields or in cases that require technical expertise on the part of the decision maker.
New specialist tribunals are rarely created. Officials should work closely with their legal advisers and the Ministry of Justice before deciding whether to create a new specialist tribunal or expand the jurisdiction of an existing tribunal. The creation of new tribunals and the granting of new powers to existing tribunals are discussed in Chapters 18 and 20. In 2015, the Ministry of Justice produced detailed guidance for departments considering whether to create a new tribunal or improve an existing tribunal. This guidance provides the starting point for any department that is considering creating a new tribunal.
Similarly, a range of statutory office holders are also empowered to investigate complaints relating to specific fields. Examples include the Commerce Commission, the Privacy Commissioner, the Health and Disability Commissioner, the Human Rights Commissioner, and the Electricity Authority. Existing commissioners and statutory office holders with relevant jurisdiction should be relied on rather than creating new jurisdictions, unless there are good reasons not to do so. Good reasons for not relying on an existing body might include the fact that the body lacks the necessary powers, independence, or governance arrangements to properly address the issue. Also, the new powers or jurisdiction granted may conflict with the existing functions of the body. If consideration is being given to extending the jurisdiction of an existing body, that body should be consulted at an early stage.