It is sometimes thought that a regulatory need is so crucial or the issues are so new that a new and specialised institution is required in order for the matter to be satisfactorily regulated going forward. An example is the Law Commission’s proposal for a new tribunal to provide relief outside of the existing court system to address harmful cyber communications. See Law Commission "Harmful Digital Communications: The adequacy of the current sanctions and remedies" (Ministerial Briefing Paper, August 2012).
Petra Butler “When is an Act of Parliament an Appropriate Form of Regulation?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). Non-governmental groups, including InternetNZ, have identified the need to ensure broad legislative change is based on consistent principles. However, InternetNZ has critiqued the Tribunal in particular as being ill-conceived. The requirements for the making of order under clause 16 (including "take downs") are two-fold: that the complainant suffers, or was likely to suffer harm; and that the defendant breached one of the Communications Principles. InternetNZ suggests that this threshold is too low, and could lead to decisions that establish an undue limit on freedom of speech. Instead, it recommends that the threshold be similar to that of the new offence that the Bill creates in the Summary Offences Act 1981, requiring actions that are: (a) grossly offensive; or (b) indecent, obscene or menacing; or (c) knowingly false. This new frontier of regulation brings with it several challenges, and as a result, there is a need for a robust statutory basis. Despite corporations such as Google and Facebook touting the effectiveness of self-regulation, the Law Commission has identified that it is not sufficient, as there are several gaps in the law that require statutory action. The inherent power imbalances the large volume of data, the rigidity of existing law and the complexity of regulating (including the difficulty in identifying culprits) means that allowing the industry to self-regulate (in the Law Commission's view) is ineffective.
Dean Knight and Rayner Thwaites “Review and Appeal of Regulatory Decisions: The Tension between Supervision and Performance” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011). While we do not directly address the methodology of non-judicial appellate bodies, some of our analysis readily translates across to supervision of regulatory decisions by tribunals. We recognise that such bodies are a key component of New Zealand’s regulatory structure. In many respects, tribunals mimic the formal, external, and legalised review of court-based supervision. In other respects, tribunals may bring some different character to the supervision task, through things like expertise, specialisation, and tailored procedural rules. These different characteristics may ameliorate (or, indeed, exacerbate) some of the tensions in the performance–supervision dynamic. However, the different nature of tribunals make it practically difficult to engage in a comprehensive study of their supervision methodologies. Instead, we leave review by tribunals to be addressed by way of extrapolation, based on the (varying) extent of their analogy with independent review undertaken by the courts.
Susy Frankel and Meredith Kolsky Lewis “Trade Agreements and Regulatory Autonomy: The Effect on National Interests” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011). The Food Standards Treaty established the first trans-Tasman bi-national regulatory agency, the Australia New Zealand Food Authority (“ANZFA”), to develop joint food standards for Australia and New Zealand. In 2002 the Food Standards Treaty was amended and the ANZFA was renamed Food Standards Australia and New Zealand (“FSANZ”). The FSANZ is an independent statutory agency, whose powers and functions are governed by the Food Standards Australia New Zealand Act 1991 (Australia). In New Zealand, the Parliamentary Secretary to the Minister for Health has executive responsibility for FSANZ. FSANZ has offices in Canberra and Wellington, and all employees are members of the Australian public service, including those employed in New Zealand. The governing Act provides that the primary objective of the FSANZ, in developing or reviewing food standards and variations of food standards, is to protect public health and safety. Other objectives include the provision of adequate information relating to food to enable consumers to make informed choices and the prevention of misleading or deceptive conduct. Although not stated in the Act, another promoted aim of FSANZ is the reduction of barriers to trade. (c) Joint Food Standards Code The FSANZ is authorised to make food standards for both Australia and New Zealand called the Australia New Zealand Food Standards Code (joint code). FSANZ developed the joint code based on a review of the Australian Food Standards Code. The Health Ministers of New Zealand and Australia agreed to the joint code in November 2000. The joint code deals with issues such as production, composition, contaminants and labelling.