Dear Ministry of Justice,

Would you please provide me with any information held by the Ministry, such as cabinet papers, reports to ministers, and internal memorandum, which relate to why hearings in, and decisions of, the Disputes Tribunal remain private contrary to the numerous recommendations from the Law Society to make them public?

Below is the history of the matter as far as I can make out from sources available online - it may assist you in where/when to look for information.

Yours faithfully,

Nick Coyle

History

Proceedings" in the Disputes Tribunals are private by virtue of section 39 of the Disputes Tribunal Act 1988. They were also private under the Small Claims Courts Act 1984.

In its 2004 report on the Courts and Tribunals, “Delivering Justice for All”, the Law Commission concluded that there were no compelling reasons for the Disputes Tribunal to continue to hold hearings in private.

In the Government's response to the Law Commission Report on "Delivering Justice for All" tabled in the House of Representatives on 9 September 2004, with regard to Residential Tenancy and Disputes Tribunals, it is stated at [254]: “The Government agrees that proceedings in the Disputes Tribunal should be open to the public and that those proceedings should be recorded. The Government has directed the Ministry of Justice to report back on the operational implications and costs involved in recording hearings and to seek any funding required through normal budget processes. Opening the Disputes Tribunals to the public would require change to the Disputes Tribunals Act 1988. Government has therefore directed that officials report back on the implications of opening the Disputes Tribunal by December 2005.”

According to later Law Commission material no action appears to have been taken by either the government or officials.

In 2007 the Law Commission again concluded that public access to tribunal hearings and reports of proceedings should be permitted, unless an overriding public interest requires otherwise (New Zealand Law Commission Tribunals in New Zealand (NZLC IP6 Wellington, 2007) 108).

In October 2007 the Minister for Courts announced the government’s support for a programme of tribunal reform, the aim of which is to propose a coherent structure for tribunals and ensure consistency in the development of future tribunals.

In “Tribunals in New Zealand” the Commission outlined very briefly five options which had been identified by the Cabinet as meriting further assessment. The Commission, working closely with the Ministry of Justice, examined these options together with various permutations of each that have since emerged.

In its October 2008 study paper entitled “Tribunal Reform”, the Commission recommended as its “number 1” option that tribunal powers and procedures be standardised at page 42: “Under this option tribunal procedures, powers, appeal rights and membership provisions would be standardised. The option aims to address the current level of disparity that exists between legislative provisions and administrative practices governing different tribunals. By tribunal procedures and powers we mean the rules that apply on matters such as whether unsworn evidence can be accepted, whether hearings are oral or on the papers, whether hearings are in public or private and whether the tribunal can award costs. We found in our early work that procedural provisions differ widely between tribunals. By aligning tribunal powers and procedures and appeal rights greater consistency would be introduced across the tribunal system. This would arguably improve perceptions of fairness and contribute to consistency in decision-making.”

In June 2006 the Commission released its report "Access to Court Records". At paragraph 376 of that report the Law Commission states: 376 As noted earlier, the Government has agreed with the Law Commission's recommendation that Disputes Tribunal proceedings should be open to the public. Once that recommendation is implemented, the Disputes Tribunal rules should be amended to reflect the presumption that a case record should be accessible unless there is good reason for withholding it.

The Government’s response dated 09 May 2007 did not address the issue of whether the Disputes Tribunal should be open to the public but stated at [8] that it “considers that a definition of open justice should be the centrepiece of any new legislation governing access to court records.”

On 24 March 2009 Parliament introduced the Disputes Tribunal amendment bill. The bill digest stated that “The aim of this Bill is to amend the Disputes Tribunals Act 1988 (the Act) to increase the maximum claim levels of the Disputes Tribunal from $7,500 or $12,000 (with the consent of all the parties) to $15,000 or $20,,000 (with the consent of all the parties).”

In its submission dated 28 April 2009 the Law Society inter alia referred to its numerous earlier publications which recommend the Disputes Tribunal should be made public and suggested the Justice and Electoral Committee consider the issue further. The Whitireia Community Law Center made a submission to the same effect by reference to the Law Commission’s material.

On 29 May 2009 the Committee issued a report which noted the submissions which recommended that decisions of the Tribunal be made public but determined “While we consider that there is some merit to evaluating these proposals further, we are advised that such amendments are outside the scope of the bill. The focus of the bill as introduced is to increase the maximum claim levels of the Disputes Tribunal. The bill does not propose any other amendments to the Disputes Tribunals Act. We would encourage the Government to consider reviewing the Disputes Tribunals Act to assess the feasibility of the amendments suggested by submitters.”

As far as I can tell, no further action was taken until 01 August 2017 when the Tribunals Powers and Procedures Legislation Bill was introduced to the House of Representatives. The digest for that bill stated that the bill "provides for twenty one tribunals (all administered by the Ministry of Justice) a standard set of powers and procedures as follows: ... issuing practice notes, online publication of information about procedures, time frames, and progress of decisions and online publication of final written decisions;"

While numerous other tribunals were “opened up” and required to publish their decisions (e.g. Motor Vehicle Sales Act 2003 s 94, Copyright Act 1994 s 224A-C), the bill did not provide for any amendment to section 39 of the Disputes Tribunal Act 1988 despite the apparent purpose of the bill being to adopt the Law Commission’s recommendation to standardise tribunal procedures (including that they be open to the public unless good reason required otherwise).

I note neither the submissions of the Law Society made in respect of the bill or the Committee report on the progress of the bill made any mention of whether the Disputes Tribunal should be made public or remain private. The Law Society submission made no reference to its earlier publications on the issue. Accordingly, it seems that there was not a deliberate decision to keep the Disputes Tribunal private contrary to the main objective of the bill as introduced. Could it possibly be that the matter was simply overlooked?