Wellington District Legal Services Committee v Tangiora CA33/97 [1997] NZCA 326; [1998] 1 NZLR 129; (1997) 3 BHRC 1; (1997) 4 HRNZ 136 (10 September 1997)

Last Updated: 5 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 33/97

BETWEEN WELLINGTON DISTRICT LEGAL SERVICES COMMITTEE

Appellant

A N D PAULINE EUNICE TANGIORA Respondent

Coram: Richardson P Gault J Thomas J Keith J Blanchard J

Hearing: 8 July 1997

Counsel: Solicitor-General J J McGrath QC, P J Andrew and

N J Baird for the Appellant

Rt Hon Sir Geoffrey Palmer, A Shaw and

C B Hirschfeld for the Respondent

Judgment: 10 September 1997

JUDGMENT OF RICHARDSON P, GAULT, KEITH AND BLANCHARD JJ DELIVERED BY KEITH J

Summary .................................................................................................................. 2

The International Bill of Rights ............................................................................... 3

The Human Rights Committee ................................................................................ 6

Relevant approaches to interpretation.................................................................... 11

The Legal Services Act 1991 ................................................................................. 15

Result ..................................................................................................................... 22

Summary

The respondent, along with 18 others representing Maori iwi, lodged a communication with the Human Rights Committee set up under the International Covenant on Civil and Political Rights claiming that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 violates her rights under the Covenant. The Committee has found the communication admissible and the New Zealand Government has filed a further lengthy response. The proceedings before this Court do not concern that substantive claim. Rather they concern the application for legal aid which the respondent made to the Wellington District Legal Services Committee in support of the substantive claim. The Committee, the appellant in this Court, ruled that legal aid could not be approved in respect of proceedings issued in courts outside New Zealand. The respondent sought a declaration that that refusal was unlawful.

The only issue argued before Gallen J was whether the Human Rights

Committee is a “judicial authority” within s19(1)(e) of the Legal Services Act

1991, and accordingly falls within the list of bodies in respect of which legal aid can be granted. He held that it was and accordingly granted a declaration that the refusal was unlawful and invalid. His judgment is reported as Tangiora v Wellington District Legal Services Committee (1996) 3 HRNZ 267, 1 BHRC 582, [1997] NZAR 118.

The Legal Services Committee appeals. For the reasons given in this judgment we allow the appeal. We hold that the Human Rights Committee is not “an administrative tribunal or judicial authority” within the meaning of the Legal Services Act.

That result follows directly from the terms of the 1991 Act. We also conclude that in this case no questions about New Zealand’s international

obligations relating to legal aid are directly raised by the interpretation and application of the Legal Services Act. Before we address the terms of that Act and approaches to its interpretation we consider the International Bill of Rights and the Human Rights Committee. We do that as background to the issues relating to the claim for legal aid. To repeat, we are not concerned with the substantive claim relating to the Fisheries Settlement Act and the Sealords deal, now before the Human Rights Committee.

The International Bill of Rights

On 26 June 1945 “We the peoples of the United Nations” stated their determination in the Preamble to the Charter of the United Nations

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom

The prominent recognition in the second paragraph and to some extent in the fourth of the centrality of fundamental human rights in international relations was of huge significance. No longer could it be accepted, as it had been so disastrously only a few short years before, that the world community had no right to concern itself with violations of human rights committed by a state against its own people. The barriers of domestic jurisdiction and sovereignty were to be lowered, if not completely swept away.

The preambular provisions are reflected in articles 1(3), 13(1)(b), 55 and 56. The third of the purposes of the United Nations as set out in article 1(3) is

To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

Under article 56 all the Members of the United Nations pledge themselves to take joint and separate action in cooperation with the organisation for the achievement of the purposes set out in article 55. That provision states in part that

With a view to the creation of conditions of stability and well- being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

...

(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

In the decades since 1945 members of the United Nations and related bodies have striven to give content to those aspirations and broad undertakings by (1) stating substantive human rights obligations intended to be binding on states and (2) developing effective means of implementing those obligations. Notable among those steps are the components of what is often referred to as the International Bill of Rights - the Universal Declaration of Human Rights proclaimed by the United Nations General Assembly in 1948 as “a common standard of achievement for all peoples and all nations”, the International Covenant on Economic Social and Cultural Rights, the International Covenant on Civil and Political Rights (ICCPR) and the (first) Optional Protocol, the last three all being adopted in 1966, UNGA res 217A(III), 993 UNTS 3, 999 UNTS 272 and

302. New Zealand became bound by the Covenants in 1979 and the Optional Protocol in 1989. In the substantive claim before the Human Rights Committee, the respondent alleges breaches of the ICCPR and invokes the procedure available under the Optional Protocol.

The preamble to the ICCPR indicates its foundation and purposes:

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,

Agree upon the following articles: ... .

Part III of the Covenant sets out substantive rights including two relevant to the substantive claim before the Committee: the right to be equal before the courts and tribunals (article 14) and rights in respect of minorities (article 27); article 1 (comprising the whole of Part I) about self-determination is also invoked. Part II is concerned with the national implementation of the obligations and Part IV with international processes. In Part II, article 2 requires each State party to the Covenant to respect and to ensure to all individuals within its territory subject to its jurisdiction the rights recognised in the Covenant without distinction of any kind. As well, the parties are obliged to adopt legislative or other measures necessary to give effect to the rights recognised in the Covenant to the extent that their existing law is deficient. And finally, in article 2(3)

Each State Party to the present Covenant undertakes:

(a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) to ensure that any person claiming such a remedy shall have his rights therein determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) to ensure that the competent authorities shall enforce such remedies when granted.

That provision was prominent in the judgments in this Court in Baigent’s Case holding that a person whose rights under the New Zealand Bill of Rights Act 1990 had been breached might, in appropriate cases, be entitled to an award of compensation, Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667,

676, 690-91, 699 and 718.

In principle and in practice it is those national means of implementation which must constitute the major means by which States give effect to their obligations under the Covenant. In principle that is so given the substantive obligations of States set out in Part III emphasised by their implementation obligations in Part II. In practice that will also be so given the impossibility of a single central body, meeting on a part-time basis, handling the vast number of human rights disputes arising between individuals and governments around the world. The last resort character of the complaint remedies in the Covenant and the Optional Protocol is emphasised as well by their express requirements that domestic remedies be exhausted before the Committee considers a communication.

The Human Rights Committee

The Human Rights Committee which consists of 18 members elected to four year terms under Part IV of the Covenant by the States parties to it has three

functions. The first is to consider the reports submitted to it on a periodic basis by States parties to the Covenant on the measures they have adopted to give effect to the rights recognised in the Covenant and on the progress made in the enjoyment of those rights (article 40). Secondly, a procedure is available between States which accept it enabling one State to make a communication to the effect that another State is not fulfilling its obligations under the Covenant (articles 41-42). The third procedure, the one in issue in the present case, is also available only against States which have separately accepted it, by becoming party to the Optional Protocol. Under article 1 of the Protocol the Committee is competent to receive and consider communications from individuals who claim to be victims of a violation by such a State Party of any of the rights set out in the Covenant.

The question the Court has to decide is whether, when the Human Rights Committee is carrying out that final function, it is “an administrative tribunal or judicial authority” within the meaning of s19(1)(e) of the Legal Services Act

1991. If it is, a person who has made a communication to the Committee may be entitled to legal aid in accordance with the other provisions of that Act.

Before turning to the New Zealand legislation and the approach to its interpretation that should be adopted, we note some aspects of the character, procedures and powers of the Committee, when it is dealing with individual communications under the optional protocol.

In the first place, the Committee is not called a court (by contrast to the International Court of Justice) or a tribunal (by contrast to the United Nations Administrative Tribunal), or even a Commission (by contrast to the Fact-Finding Commissions provided for in the Hague Conventions on the Peaceful Settlement of International Disputes, 1901 UKTS 9). The history of the drafting of the Covenant shows that the choice of a lesser title was a deliberate one. The negative implication of the title for judicial status is not affected by the fact that

members serve in their personal capacities, make solemn declarations of office and enjoy certain privileges and immunities; that is also true of members of a number of international bodies which could not be characterised as judicial.

Second, the process set out in the Protocol is exiguous. It is not that expected of a judicial body or tribunal. Under article 3, the Committee is first required to consider as inadmissible anonymous communications, communications which are an abuse of the right of submission, or communications which are incompatible with the Covenant. Subject to those constraints the communication need not take any particular form. The Committee need not follow any express procedure in undertaking that consideration. If those hurdles have been overcome the Committee brings the communication to the attention of the State party in question which within six months is obliged to submit written explanations or statements “clarifying the matter and the remedy, if any, that may have been taken by that State”, article 4. The Committee is then to consider communications received under the Protocol in the light of all the information made available to it by the individual and the State party. If the matter is not being considered by some other international process and if the individual has exhausted available domestic remedies, the Committee examines the communications in closed meetings and “shall forward its views to the State party concerned and to the individual”, article 5. It is to include in its annual report to the General Assembly on its activities a summary of its activities under the Protocol, article 6.

While these provisions have been considerably developed by the Rules of Procedure and the practices of the Committee the procedures are not obviously those of a court or tribunal like body. They are even limited compared with the procedures the Committee applies when dealing with complaints brought by one State against another. For instance, in that situation the Committee must make available its good offices to the States parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental

freedoms as recognised in the Covenant. The States parties have an express right to be represented when the matter is being considered in the Committee and to make oral and written submissions. If that process is unsuccessful the Committee has the power, with the consent of the States parties, to appoint an ad hoc conciliation commission which is required to fully consider the matter. It, too, has the power to call upon the States parties to supply any other relevant information.

More significant than that internal contrast are the differences between the provisions regulating the Committee and those governing other bodies set up to resolve disputes of an international character. We take just one example arising from a multilateral treaty negotiated at about the same time as the Covenant - the Convention on the Settlement of Investment Disputes between States and nationals of other States which was concluded in 1965, 1175 UNTS 438. It sets up, principally by way of the rules which have been adopted in accordance with it, an arbitral procedure following the standard processes of international commercial arbitration and giving both parties full opportunities to present evidence and argument to the arbitrators.

The contrast can be carried forward into the third area, that is the powers of the Human Rights Committee. All it can do under the Optional Protocol is to forward its “views” to the State party in question and the individual concerned. They are views on the issue whether the State has breached its obligations. That aspect of the function might suggest a judicial role. But against that characterisation is the wording of the Protocol : it is not the language of binding obligation, as the legislative history once again emphasises. It is true there have been important subsequent developments designed to enhance the force of the “views” adopted by the Committee. Nothing that we say should be seen as questioning at all the importance of those developments and others designed to strengthen the Committee’s procedures. Nor do we question in any way the duty of the States parties to the Covenant to consider in good faith what steps they must take to give effect to their obligations under the Covenant in accordance with the

general principles of international law, as proclaimed, for example, in article 26 of the Vienna Convention on the Law of Treaties

Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (1155 UNTS 331)

No doubt the views stated and the comments made by the Committee should where appropriate have an important relevance to the States parties’ assessment of those obligations, as this Court has indicated, eg R v Goodwin (No 2) [1993] 2

NZLR 390, 393.

The fact remains however that when international obligations to comply with findings made following dispute settlement procedures are being created, plain language to that effect is available and is ordinarily used. Again, to take the example of the ICSID Convention, the parties to the arbitration process set up under it must accept the binding force of the award. Article 53(1) provides:

The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.

Even the qualifications in that provision help emphasise the different position of the Committee. Neither element - that the award is binding and that that binding character is subject to limits - is to be found in the express law relating to the Committee.

The above brief review of the character, procedures and powers of the Committee raises real doubts whether the Committee could be characterised in any general sense as an administrative tribunal or judicial authority; see eg Tertiary Institutes Allied Staff Association Incorporated v Tahana CA175/96 and CA183/96 judgment of 14 August 1997 pp5-14. A comparison with the same three features of the European Court of Human Rights set up under the European Convention on Human Rights of 1950 - the only existing human rights model

when the Covenant was being drafted - increases those doubts. Any general characterisation would not however be decisive since the characterisation does have to be made in the particular context of the Legal Services Act. The issue is one of the interpretation of the relevant provision of that Act. We take up that matter in the next two parts of this judgment.

Relevant approaches to interpretation

In his judgment Gallen J recorded that in this case the appropriate approach towards statutory interpretation was “very much in contention”. He continued:

Speaking in general terms, it is the view for the plaintiff that the Act should be interpreted in the light of the appropriate response of the New Zealand Government and the New Zealand governmental agencies towards international obligations. The defendant takes the view that the Act should be interpreted according to those rules of interpretation which have evolved within the common law and which have been set out with more or less precision in a large number of judicial decisions.

In determining the matter, I think that both approaches need to be taken into account. There is ample authority from the Court of Appeal and I accept, that international obligations are to be taken seriously and that the acceptance of such obligations particularly in relation to human rights, is a matter of significance - as such it ought to reflect in statutory interpretation.

Older attitudes based on the primacy of domestic law and the general irrelevance for the purposes of domestic law of international law, must I think be considered as having lost a good deal of their authority in the contemporary climate of a world where international obligations are taken seriously and in some cases become the focus of international action. At the same time, the rules of interpretation which have been worked out and applied, are necessary to ensure some degree of certainty in the application of domestic law and the ordering of the affairs of persons subject to it. In the light of those observations, I proceed to consider the specific submissions made. 3 HRNZ at 273-274; 1 BHRC at 587; [1997] NZAR at 123.

We begin with two brief statements taken from a recent judgment of this

Court about the role of treaty provisions in the interpretation of legislation. The

first states

the presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations, eg Rajan v Minister of Immigration [1996] 3 NZLR 543, 551. That presumption may apply whether or not the legislation was enacted for the purpose of implementing the relevant text. (New Zealand Airline Pilots Association Incorporated v The Attorney-General CA 300/96, CA 301/96, judgment of 16 June 1997, 30)

The Court secondly pointed out that the statutory language in issue in that case could be read in the context of the relevant international text. There was, the Court said, no legislative provision which stood in the way of that contextual use of the international provisions. That use of the international provisions to assist the reading of the national text does not expressly depend on the existence of relevant international obligations. We return to that second, somewhat wider approach later. For the moment we consider whether there are relevant international obligations by reference to which s19 of the Legal Services Act might fall to be interpreted.

The international obligations suggested in this case were (1) an obligation to provide civil legal aid, including aid facilitating access to the Human Rights Committee, and (2) an obligation to ensure “an equality of arms” between the parties; according to the respondent that equality, on the facts of this case, required the grant of legal aid.

The first possibility received only limited attention in argument before us and rightly so. The only express obligation relating to legal aid in the Covenant relates to criminal proceedings at the trial level, article 14(3)(d). Civil proceedings are not the subject of any such explicit obligation at any level of national courts, let alone at the international level. The information about state practice available to us also does not begin to support the existence of an obligation to provide legal aid in respect of a communication to the Human Rights Committee. While there is some provision for financial assistance within the

European human rights system, that assistance is provided by the European Commission of Human Rights itself, Gomien, Harris and Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (1996) 52. The Ministry of Foreign Affairs and Trade sought information from 17 countries which are parties to the Optional Protocol and which together provided a broad geographic sample. Of those countries only the Netherlands definitely provides legal aid for communications to the Committee although Finland is contemplating making such a provision. In other jurisdictions, including some Australian states, the position is not clear as the situation has not yet arisen. Among the countries which do not provide such financial assistance are Austria, Canada, Denmark, France, Germany, Italy and Norway. The French reply is perhaps of some wider relevance since legal aid is available in that country before “juridiction” - a word that is understood by the French authorities as applying the legal aid scheme only to cases being heard by French courts. Those replies are consistent with the statement in the 1996 book just cited that domestic legal aid systems in most Council of Europe countries do not cover the costs of pursuing international legal actions.

The Covenant does not expressly refer to “equality of arms”. Rather article

14(1) of the Covenant requires that

All persons shall be equal before the courts and tribunals.

and article 26 that

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

The argument might also be related to the obligation under article 2 of the Covenant quoted earlier. Those provisions are however concerned with courts, tribunals, rights and remedies made available by a State party through its own legal system or enforced through that system. Moreover, in none of the cases to which we were referred is there any suggestion that the principle creates an

obligation to fund access to the Committee. The situation in this case is sharply different from that where the State creates a difficult financial hurdle for those seeking justice, as Laws J emphasised in R v Lord Chancellor ex parte Witham [1997] EWHC Admin 237; [1997] 2 All ER 779, 788c-e.

We accordingly conclude that there is no relevant international obligation by reference to which the Legal Services Act is to be interpreted in this case. That is not however the end of the matter so far as the international texts are concerned since the respondent urged here, as in the High Court, that the Act should be interpreted in the light of “the appropriate response of the New Zealand Government and New Zealand governmental agencies towards international obligations”. Insofar as that proposition requires an approach to the interpretation of legislation which seeks consistency with international obligations we see no difficulty with it and we have already dealt with it. The argument before us was however put in a broader way, calling in aid a passage from the Report of the Legislation Advisory Committee, Legislative Change : Guidelines in Process and Content (rev ed 191) para 44, a report which the Cabinet Office Manual (August

1996) para 5.26 endorses. The respondent invoked the emphasised sentence which should however be read in context:

In a very wide and increasing range of areas, New Zealand is committed by its treaty obligations or by customary international law to make particular provision in its domestic laws. Appendix E [to the Report] is a list of primary legislation which appears to raise treaty issues. It includes about one quarter of all public Acts. Any proposal to amend that legislation should prompt the question whether there is a treaty which must be taken into consideration. Again, appropriate and timely consultation, especially with the Ministry of External Relations and Trade is essential. Even where there is no direct obligation, there might be an international standard, especially in the human rights area, which is relevant to the preparation of new legislation and to the replacement and amendment of the old. It may also be relevant to the interpretation of legislation. (Emphasis added)

We read the emphasised sentence as saying no more than that in some

circumstances the legislature might go further than New Zealand’s international obligations require and draw on international standards which do not have obligatory force. That is an option available to those responsible for the preparation and enactment of legislation.

But as the passage also indicates that non-obligatory material may also be relevant to the interpretative process as it was for instance in Van Gorkom v Attorney-General [1977] 1 NZLR 535, 542-543, affirmed [1978] 2 NZLR 387. The international text might provide part of the context in which legislation might be read, as occurred in the ALPA case mentioned earlier. International law might for instance help indicate the content of “judicial authority” or “administrative tribunal” - but not as a matter of international obligation and only as one part of the context and possibly an inconsequential one at that. We do not see the interpretative role of the courts as extending to determining “the appropriate response” of New Zealand towards its international obligations - at least if that process runs beyond the approaches mentioned in this part of the judgment.

The Legal Services Act 1991

Against that background of international human rights law and appropriate approaches to the interpretation of legislation which might be related to that law, we turn to the provisions of the Legal Services Act.

According to its title it is an “Act to make legal assistance and legal services more readily available to persons of insufficient means”. The Legal Aid Act 1969 similarly was an Act to make legal aid “more readily available”. Prominent in the reasons given by the Ministers of Justice in 1969 and 1989 for a state funded system was the basic responsibility of the State to ensure that its citizens have access to the legal system. Both cited article 7 of the Universal Declaration of Human Rights which like article 26 of the ICCPR quoted earlier provides that “all shall be entitled without discrimination to equal protection of the law”.

Such broad propositions do not of course dictate the detail of the support to be provided - to whom it is to be given as having insufficient means, in respect of what legal services, in which courts and tribunals, and in what amounts (and with what contributions or repayments)? Decisions are to be made about those matters, in the first place by Ministers in proposing legislation, by Parliament in enacting it, and by those responsible for its administration. The answers might very well vary from time to time, as appears from a comparison of the law before 1969 (when only criminal legal aid was provided for), between 1969 and 1991 and since 1991. That is not to say that there may not be some rights in respect of legal aid, as there are for criminal trials, see the New Zealand Bill of Rights Act 1990 s24(f) and the Criminal Justice Act 1985 s10, and also article 14(3)(d) of the ICCPR.

One critical area of decision for the legislature concerns the courts and other bodies in respect of which legal aid may be granted. So far as civil proceedings are concerned, Parliament provided this answer in s19(1):

(a) Civil proceedings in any District Court or Family Court:

(b) Civil proceedings in the High Court or the Court of Appeal:

(c) Appeals to the Judicial Committee of the Privy Council in civil proceedings in any case where⎯

(i) The applicant has succeeded in the Court of Appeal and is the respondent in the appeal to the Privy Council, if the grant of aid is approved by the Minister; or

(ii) The Attorney-General certifies that a question of law of exceptional public importance is involved and that the grant of aid is desirable in the public interest:

(d) Proceedings commenced by way of application in a Youth Court under Part VII of the Children, Young Persons, and Their Families Act 1989 or in respect of any review of any determination of, or any order made in, a Youth Court in any such proceedings:

(e) Proceedings in⎯

(i) The Maori Land Court; or

(ii) The Maori Appellate Court; or

(iii) The Employment Court; or

(iv) The Employment Tribunal; or

(v) Any administrative tribunal or judicial authority (not being a tribunal or an authority in respect of any decision of which an appeal lies to any of the bodies referred to in any of paragraphs (g) to (j) of this subsection) ⎯

in any case where the District Subcommittee considering the application is of the opinion⎯

(vi) That the case is one that requires legal representation having regard to the nature of the proceedings and to the applicant's personal interest; and

(vii) That the applicant would suffer substantial hardship if aid were not granted:

(f) Proceedings in the Waitangi Tribunal:

(g) Proceedings in the Compensation Court or before the Accident

Compensation Appeal Authority:

(h) Proceedings before the Social Security Appeal Authority: (i) Proceedings before the Tenancy Tribunal:

(j) Proceedings before any body (by whatever name called) established by the Government of New Zealand to determine appeals against decisions made by immigration officers (within the meaning of the Immigration Act 1987) and relating to the status of persons as refugees:

(k) All applications, submissions, and appeals under the Resource Management Act 1991 or to the [Environment Court] under any other Act:

(l) All applications, submissions, and appeals to any Council or body in any case where an appeal in relation to its decision lies to the Planning Tribunal.

The emphasised words in para (e)(v) are the ones immediately in issue.

The separate inclusion of paras (f) and (j) helps make a point touched on earlier, that bodies without powers of decision may not easily be characterised as “an administrative tribunal or judicial authority”. Doubts raised in 1987 on that score about the Waitangi Tribunal by the Legal Aid Appeal Authority were met by Parliament in the following year expressly adding the Tribunal to the list in the

1969 Act; Decision No LAA 11/87 (1987) 6 NZAR 443 and Treaty of Waitangi

(State Enterprises) Act 1988 s15.

Subsection (4) excludes certain proceedings from the list (relator actions, election petitions and proceedings for dissolution of marriage; see also subs (3)) and subs (5) requires separate applications in respect of appeals or reviews to which paras (h), (d), (e), (k) or (l) apply. Those provisions can be seen as indicating the care with which the list is constructed. That care is also to be seen in an amendment to s19 made later in 1991 essentially excluding from the coverage of the Act proceedings before the newly established immigration tribunals (subs (4A)). That exclusion is to be contrasted with the addition to the Bill, made in the course of its passage, of the refugee body referred to in para (j). The procedural obligations to be found in and arising from the 1951 Convention relating to the Status of Refugees may have helped to distinguish that body from the new statutory bodies and to justify eligibility for legal aid. The refugee body is the only named body included in the list which is not established by or under statute or which does not have authority conferred on it by statute.

The list of bodies in s19(1) can usefully be put into four groups. The first and second are particularly identified. The third and the fourth require a further judgment to ensure eligibility:

(1) paras (a), (b) and (d) cover the courts of general and related jurisdiction without the additional standards to be found in paras (c) and (e)

(2) paras (f) - (l) list particular specified tribunals again without additional standards (for the Waitangi Tribunal see also ss72-76)

(3) para (c) provides for appeals to the Privy Council but only if the Minister of Justice or Attorney-General agree; that executive or non- judicial requirement also appears in the provisions for criminal legal aid : cf s4(b) with s4(a)

(4) para (e) - that in issue in this case - requires further judgments about the proceedings, the personal interest and substantial hardship.

The extra element in respect of appeals to the Privy Council is particularly significant: legal aid is available in respect of those appeals only if the Minister of Justice or Attorney-General agrees, while all other legal aid decisions are made by the legal services bodies or the courts originally or on appeal. Access to that final stage in the New Zealand court system is to be tightly controlled By contrast, on the respondent’s argument, there would be no such executive constraint on legal aid supporting access to a next stage of complaint, beyond the Judicial Committee: it is relevant to recall that domestic remedies must be exhausted before the Committee can be approached. (In fact a challenge to the Sealord agreement relating to the proposed legislation which is in issue in the Human Rights Committee did come to this Court, Te Runanga o Wharekauri Rekohu v Attorney- General [1993] 2 NZLR 301.)

The requirement for the further judgments in the case of the fourth group is also significant. It is understandable given the large number and wide range of administrative tribunals to be found in New Zealand. A report of the Legislation Advisory Committee on Administrative Tribunals presented to the Minister of Justice in late 1988 and published in 1989 referred to more than 100 tribunals and discussed more than 50 of them under nine headings, including disputes between individuals, environmental and planning matters, economic matters, censorship, welfare and benefits, taxation, and licensing.

One plain implication to be drawn from this list is of considerable caution once it extends beyond those in groups (1) and (2) - the major original and appellate judicial and tribunal jurisdictions. As well the final appeal in the regular court system is subject to unique executive control.

Another implication arising from the list is that it is firmly limited to bodies established within the New Zealand legal system and then only to the bodies listed or indicated. By contrast to the action that it took in relation to the refugee appeal

body, a body established by a Minister, Parliament did not expressly respond to the suggestion of a scholarly commentator that it extend legal aid to the Committee, Elkind [1990] NZLJ 96, 100.

The care in the construction of the list and the careful limits placed on it are to be seen as well in the exclusion from the Act as enacted of legal proceedings originally included in the 1989 Bill. The Minister in 1991 explained those exclusions in this way:

The demands for legal aid have risen dramatically in recent years

⎯in particular, for civil legal aid. The Government is determined to be fiscally responsible. Competing demands for the taxpayers’ dollars must be, and under this Government will be, carefully weighed in the balance. The Government considers that it is not responsible behaviour to borrow the amount spent today on legal aid and to burden future generations with that cost. Therefore it has been necessary to delete from the Bill all new categories for which legal aid was to become available. Those categories include legal aid for appearances before royal commissions, for the dissolution of marriage, for groups making claims in the Maori Land Court, and for groups in the environmental sector. Legal aid for all those proceedings for which it is available under the present Acts will continue, including⎯but at present in a different form⎯ hearings before the Waitangi Tribunal.

He later made the point that the fund available for legal aid is not a bottomless pit and spoke of the conflict between the demand driven nature of legal aid and the need to ration resources.

Prudent financial management is emphasised in the statement of the principal functions of the Legal Services Board established to administer the schemes provided for in the Act. Like the Board under the 1969 Act it is

to ensure that the operation of the criminal legal aid scheme and the civil legal aid scheme is as inexpensive, expeditious, and efficient as is consistent with the spirit of this Act: (s95(c); Legal Aid Act 1969 s5(1)(c); see also the emphasis in the annual report provision on financial reporting, s111).

Against that account of the provisions of the Act we return to the question

whether the expression “any administrative tribunal or judicial authority” includes the Human Rights Committee. The answer is plainly no. The 1991 Act, including s19, is concerned only with courts, tribunals and related bodies which are established under New Zealand law, by or with the authority of Parliament, and which Parliament in a careful way lists or indicates. (As already noted, the refugee appeal body is an exception to that proposition insofar as it requires Parliamentary establishment or authority. That body is established under the common law rather than by or with the authority of statute but it was of course expressly added.) The ruling in the most relevant decision to which we were referred, Arbitrators Institute of New Zealand Inc v Legal Services Board [1995] 2

NZLR 202, is consistent with that proposition.

The Act does not extend to courts or tribunals established beyond New Zealand except to the limited extent provided for in respect of the Privy Council. In particular the Human Rights Committee does not come within the scope of the Act.

The respondent understandably emphasised various statements which this Court has made about the status of the Human Rights Committee and the significance of its views, one of which is mentioned earlier in this judgment. In particular in Tavita v Minister of Immigration [1994] 2 NZLR 257, 260, this Court said

That Committee is in substance a judicial body of high standing.

When making that statement the Court was not of course concerned with the particular issue of statutory interpretation involved in this case. Nor was it when the other statements were made. Rather they concern the authority that should be accorded to the views of the Committee (R v Goodwin (No 2) [1993] 2 NZLR 390,

393), the views that it has expressed on matters before the Court (Baigent’s Case

[1994] 3 NZLR 667, 699), and the significance of New Zealand’s acceptance of

the optional protocol for the remedies available under the Bill of Rights (Baigent’s Case at 691). This Court has recently cautioned against using in one context the characterisation of a body or function as judicial made for a quite different purpose, Tertiary Institutes Allied Staff Association Incorporated v Tahana, above. Accordingly we do not see these statements as affecting the meaning of s19. Nor, to return to an earlier part of the judgment, do we see that meaning as affected by any possible argument based on the general characterisation of the Committee : as indicated, there must be great doubt whether it can be characterised in some general sense as an administrative tribunal or a judicial authority. In any event, the analysis of the terms of s19(1)(e)(v) in context and by reference to the purpose of the Legal Services Act leads us to the conclusion stated earlier - s19 is limited to courts, tribunals and related bodies which are established under New Zealand law, by or with the authority of Parliament, and which Parliament in a careful way lists or indicates. The Human Rights Committee is not such a body.

Result

Accordingly, the appeal succeeds. The statement of claim is dismissed. The order for costs made in favour of the respondent in the High Court is quashed. Counsel may submit memoranda on costs in both Courts they wish.

Solicitors

Crown Law Office, Wellington for the Appellant

Wellington Maori Legal Services for the Respondent

IN THE COURT OF APPEAL OF NEW ZEALAND CA 33/97

BETWEEN WELLINGTON DISTRICT LEGAL SERVICES COMMITTEE

Appellant

A N D PAULINE EUNICE TANGIORA Respondent

Coram: Richardson P Gault J Thomas J Keith J Blanchard J

Hearing: 8 July 1997

Counsel: Solicitor-General J J McGrath QC, P J Andrew, N J Baird for Appellant

Rt Hon Sir Geoffrey Palmer, A Shaw, C B Hirschfeld for the

Respondent

_{Judgment: 10 September 1997}

_{JUDGMENT OF THOMAS J}

I have had the advantage of reading Keith J’s draft judgment, and I agree that the appeal should be allowed. I wish, however, to restrict the basis of my concurrence to the question of the interpretation of s 19(1)(e) of the Legal Services Act 1991.

After an admirable and comprehensive review of the International Bill of Rights and the Human Rights Committee, Keith J reaches the conclusion that his review of the character, procedures and powers of the Committee raises real doubts whether the Committee could be characterised in any general sense as a judicial authority. I do not wish, or consider it necessary, to reach a concluded view on this issue. Although the Committee may lack many of the characteristics

of a judicial authority, particularly the power to issue decisions which are binding and enforceable, I incline to think that, when the Committee determines a substantive claim by reaching a “view” whether or not the State party is in breach of its obligations under the International Covenant on Civil and Political Rights, it has made a definitive and final ruling on that claim. The fact the State party may choose not to comply with the Committee’s directions in any particular case does not detract from the fact that to all intents and purposes the Committee’s “view” that there is a breach is determinative of the issue. In reaching what is effectively a definitive ruling, I apprehend that the Committee is exercising a judicial or quasi-judicial function which may be sufficient to clothe it with the mantle of a “judicial authority”. But because I believe the meaning of s 19(1)(e) of the Legal Services Act is plain, I do not need to press my opinion to a firm conclusion.

For the reasons given by Keith J, I take the view that s 19(1)(e) is intended to apply to domestic tribunals and judicial authorities only. I cannot accept that any other interpretation would accord with Parliament’s intent.

Solicitors

Crown Law Office, Wellington for Appellant

Wellington Maori Legal Services for Respondent

IN THE COURT OF APPEAL OF NEW ZEALAND CA 33/97

BETWEEN WELLINGTON DISTRICT LEGAL SERVICES COMMITTEE

Appellant

A N D PAULINE EUNICE TANGIORA Respondent

Coram: Richardson P Gault J Thomas J Keith J Blanchard J

Hearing: 8 July 1997

Counsel: Solicitor-General J J McGrath QC, P J Andrew, N J Baird for Appellant

Rt Hon Sir Geoffrey Palmer, A Shaw, C B Hirschfeld for the

Respondent

_{Judgment: 10 September 1997}

_{JUDGMENT OF THOMAS J}

I have had the advantage of reading Keith J’s draft judgment, and I agree that the appeal should be allowed. I wish, however, to restrict the basis of my concurrence to the question of the interpretation of s 19(1)(e) of the Legal Services Act 1991.

After an admirable and comprehensive review of the International Bill of Rights and the Human Rights Committee, Keith J reaches the conclusion that his review of the character, procedures and powers of the Committee raises real doubts whether the Committee could be characterised in any general sense as a judicial authority. I do not wish, or consider it necessary, to reach a concluded view on this issue. Although

2

the Committee may lack many of the characteristics of a judicial authority, particularly the power to issue decisions which are binding and enforceable, I incline to think that, when the Committee determines a substantive claim by reaching a “view” whether or not the State party is in breach of its obligations under the International Covenant on Civil and Political Rights, it has made a definitive and final ruling on that claim. The fact the State party may choose not to comply with the Committee’s directions in any particular case does not detract from the fact that to all intents and purposes the Committee’s “view” that there is a breach is determinative of the issue. In reaching what is effectively a definitive ruling, I apprehend that the Committee is exercising a judicial or quasi-judicial function which may be sufficient to clothe it with the mantle of a “judicial authority”. But because I believe the meaning of s 19(1)(e) of the Legal Services Act is plain, I do not need to press my opinion to a firm conclusion.

For the reasons given by Keith J, I take the view that s 19(1)(e) is intended to apply to domestic tribunals and judicial authorities only. I cannot accept that any other interpretation would accord with Parliament’s intent.

Solicitors

Crown Law Office, Wellington for Appellant

Wellington Maori Legal Services for Respondent