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Jamieson, N --- "Book Review: The Disputes Tribunals of New Zealand (by Peter Spiller, Thomson-Brookers Ltd, 2nd Edition 2003)" [2005] OtaLawRw 8; (2005) 11 Otago Law Review 139

Book Review: The Disputes Tribunals of New Zealand (by Peter Spiller, Thomson-Brookers Ltd, 2nd Edition 2003)

“It has rightly been observed,” as Peter Spiller quotes in the preface to his second edition of The Disputes Tribunals of New Zealand, “that it is the duty of every civilised country to provide adequate redress for those with small claims.” Whether the Disputes Tribunal system provides such adequate redress will always remain an ongoing issue of jurisprudence. The setting up of lay courts (no less than the substitution of justices of the peace for grand juries, the extension of summary at the expense of regular jurisdiction, and the introduction of a new regime of imposing instant fines without judicial hearing) will always provoke controversy for as long as these jurisprudential issues are seen to retain any constitutional significance.

“Over the past 26 years tens of thousands of New Zealanders have had such [adequate] redress afforded to them through the Small Claims/Disputes Tribunals,” continues the author. This is of course, a value judgement — and one that may be too close for comfort to the author ’s claims “to have been part of the Tribunal venture for over 14 years... [to have been] engaged by the Department of Justice to give instruction to the Tribunal Referees... [to have] continued in the role of trainer... [to have been] appointed as a Referee... and [to have worked] as such in a part-time capacity in Hamilton and other centres...”

It was C.K. Chesterton who credited Malcolm Arnold with raising the level of the English literary review (begun by way of putting books on trial by the lawyer, judge, and author of Tom Jones, Henry Fielding) — to that level of review which we lawyers have long taken for granted by way of being the credentials for undertaking legal commentary. The critical function is exercised only “in the common pleasure of a free disinterested play of mind” wrote Arnold. “It is because criticism has so little kept in the pure intellectual sphere, has so little detached itself from practice... that it has so ill-accomplished, in this country, its best spiritual work which is to keep man from a self-satisfaction which is retarding and vulgarising... And how is it to be disinterested? By keeping aloof from practice...”

The irony for lawyers lies in this: that the literary conscience — which can inspire even the French to ask a quoi tient la superiorite des AngloSaxons — is typically the legal conscience. For those whose conscience has been seared, or for those who are intellectually ill-suited to the claims of a voluntarily assumed jurisprudence, this means following today’s professionally enforced code of legal ethics. Lawyers are obliged to build Chinese Walls between conflicts of interest in practice, no less than judges are expected to recognise and avoid conflicts of interest on the Bench. Legal academics, to fulfil whatever statutory role they may have under the Education Act 1989 in acting as “the critic and conscience of society”, are similarly obliged to respect the isolation of their ivory towers and to keep themselves sufficiently “aloof from practice”.

It is tempting to cry maleesh or “she’ll be right”, and to give over any further enquiry into the credentials for legal commentary. One would prefer more politely to turn a collegially blind eye, — which one might well do were “commentary”, as in the phrase “legal commentary”, not directly derived from Arnold’s insistence on a thoroughly reflective and fully contemplative commentari.

There are three things to think upon by way of Arnold’s insistence on a strictly etymological derivation by which to measure that “disinterested play of mind” to which legal commentary no less than literary review must aspire. First, ours is such a small, fragile, and now almost self-appointed legal system that it is hard to avoid the allegation of incestuousness that has driven so many young New Zealand lawyers to seek their fortunes overseas. Correlatively, by way of rebutting this allegation of professional incestuousness many disastrous decisions have resulted from engaging overseas consultants completely unacquainted with this country. Secondly, in accordance with today’s increasingly bureaucratic surveillance of the universities, the independent and self-effacing scholar is hard-pressed to avoid that patronage and self-promotion which will, more readily in association with prevailing schools and factions rather than by free-ranging academic scrutiny, secure the acceptance of ideas and recognition of arguments. Thirdly, Professor Spiller is so constant in his promotion of the system in which he participates and so actively involved with its protocols and practices that every reviewer must surely demur if only to discover the truth of Professor Spiller ’s conclusions. This is so even if only to discover what Arnold considered more important than the popular truth for the function of criticism, that is to say “the unpopular half-truth”.

Need any legal commentary, such as that which Professor Spiller provides on the Disputes Tribunals of New Zealand, provide more than an exposition of the law? Certainly not — since exposition need not sit in judgement nor provide any critique or criticism. As of any statute that eschews intent and purpose clauses, rigorously restricting oneself to exposition assumes greater risks for higher rewards. The measure of legal certainty derived from expositional expertise is to be weighed against outright communicative failure. For as long as any legal commentary remains purely descriptive and devoid of value judgements, the work is thereby made more reliant on expositional expertise. The subject becomes correspondingly harder of explanation, riskier of failure, but more self-evident in achieving success.

The obvious way for Professor Spiller to achieve rigorously descriptive exposition is to stick to the statute as a primary source. From Halsbury’s Statutes through Sim’s Practice and Procedure to EC Adams on The Law of Estate and Gift Duties or Adams on The Law of Stamp Duties, this has always been the most obviously direct if mundanely repetitious way of writing commentaries. The original mind looks for riskier challenges, however, just as it has been said of Adams that his own comprehensive works, which became the standard texts for estate, gift, and stamp duties, were demurred for a doctorate for their lack of originality. In so many different ways does the uneasy boundary between jurisprudence and black-letter law provoke a frictive response. After all, the primary source in being the primary source is one which rapidly loses its priority the greater our indulgence in legal commentary.

It was Henry Hallam who first focused every commentator ’s attention on the primary source of law, and who by his Constitutional History gave birth through Dicey to constitutional law. Thereafter the still growing tradition of parliamentary sovereignty, although augmented by constitutional convention as a new primary source would focus on the statute. Such is our habituation to statutory form, however, that even commentators are challenged to wax creatively by aping legislators. As with Webb and Webb on Partnership, commentators may go so far as to compose a pseudo-statutory text, with hypothetical sections and subsections, from which to derive their footnoted commentary. Some, even purely Common Law texts such as Bowstead on Agency, chose to conform to this same methodology of legislative drafting. Many Common Law commentaries by now adhere to this strongly formalised statutory style. In article 1 Bowstead begins his commentary with the interpretation of terms, and then goes on to deal with definitions in article 2. Such is the forcefulness of statute law that legislative rather than case-law stylistics have taken over commentaries at Common Law.

Once the commentary introduces value judgements, however, then the measure of those judgements, whether textually hidden or overtly expressed, is open to review. The clinical quality of the exposition may or may not remain autonomous of the introduced values. Unless the distinction between exposition and critique is kept explicit, then the writer may be hoodwinking others if not also himself as to the purity of his exposition. Then the task of evaluating the legal exposition likewise transcends its previously black-letter boundaries.

The same argument applies to the Disputes Tribunals Act 1988. As a matter of positive law, the Act is the Act is the Act. One need not raise the issue of the inept naming of the Act any more than one need raise the issue of whether the Act is deficient in drafting or less than capable of achieving its purpose. The task is then one only of rigorous exposition. The Law is the Law is the Law.

That argument ceases to hold whenever the exposition of law is tempered by reference to politics, philosophy, or personal experience. Some jurists such as Holmes might say the same goes even for trying to temper the law with logic. As for politics and philosophy, some other touchstone is then being applied to the no longer positive law. Then the critique must itself be critiqued no less than the exposition of positive law must remain open to review. No less full- blooded means can maintain the authority and autonomy of positive law. This is the case even though the process opens commentators to suspicions of personal partiality and judges to compromising their independence or to allegations of judicial activism.

There is thus a scholarly strength to be derived from maintaining the legal high ground of rigorously descriptive and uncritical exposition. “Judge not that you be not judged” expresses an Hohfeldian immunity for the province of legal scholarship. What makes Professor Spiller ’s work on The Disputes Tribunals vulnerable is not so much his descent from this high ground, but his failure to recognize and adapt to the different modes of travel apt for such diverse topographies.

Admittedly, this high ground cannot always be maintained through every age and stage of any changing legal system. That a confusion of high and low grounds of legal discourse should be provoked by the folk-moot atmosphere of the Disputes Tribunals is understandable. (At least within its own jurisdiction the Act itself is bound to proliferate the growth of quasi-juristic if not also quasi- juridic legal customs). Nevertheless, one should always recognise the move from the virtually unassailable high ground of legal exposition to the far riskier level of exercising critical judgement. To maintain the purity of legal exposition as a literary genre, no critical thought is admissible. On the other hand to allow an admixture of exposition and criticism requires, for the preservation of each of those genres, first a clear distinction to be drawn between their exercise, and secondly, a rigorous examination of the role and status of the author.

The same goes for judges and legislatures. It is to the disastrous disadvantage of today’s legal system that many judges substitute their own personal and often arbitrary values for rigorous exposition while legislatures imbue and adulterate propositions of law with political slogans and policy statements. In such chaotic circumstances the same complaints can hardly be held to the heads of commentators with pistol-packing precision. Second to reviews, commentaries are the humblest of our Common Law resources. That their exposition is mightily confused if not also rendered disingenuous in consequence of today’s confused treatment of primary sources must surely be recognised in mitigation.

This is one very obvious reason — the compromise of intellectual, as well as autonomously legal independence – why prefaces and introductions to legal commentaries should never ever be given by political, and far less by judicial persons. The Forwards by the Hon. Douglas Graham, as Minister of Courts, to the first edition, and by the Hon. Margaret Wilson, as Minister of Courts, to the second edition of The Disputes Tribunals of New Zealand are each tremendously user-friendly and perhaps reassuring to the layman. Both in principle, however, are very much mistaken. The convention of ivory-towered and thus iconic independence, increasingly broken where political support is canvassed for academic work, not only compromises the rigorousness of academic independence but risks the politicisation of law. Worse still, among some very profuse recommendations given to academic work from the judiciary — such as from Lord Cooke of Thorndon — is the real threat to short-term judicial impartiality and to long-term judicial independence. Beyond all else lies the real threat, more insidiously than explicitly expressed, of creating an ethos of judicial patronage and a support for this or that judicially-acceptable academic endeavour.

Faculties of Law play a strongly constitutional role in their critique of government. That is the result of centuries of legal and constitutional history by which, either rightly or wrongly, the Universities supported the Crown against the Judiciary and Parliament. Without loss of their own identity, Common Law commentators cannot be drawn into the present maelstrom by which sometimes politics and at other times arbitrary judicial opinion is made to substitute for law. Otherwise the risk and temptation to follow suit by being disingenuously disinclined to distinguish those components by which political and philosophical critique is made to substitute for rigorously descriptive legal exposition compounds the crime.

This is not to decry legal critique. The word “dispute”, as every draftsman ought to know, is a functional adjective as well as a formal noun. “Dispute resolution” is a more familiar expression than “dispute tribunal”. Like “trade unions” instead of “trades unions” one rarely if ever requires a forked tongue to sprinkle aspirates all round. Function takes precedence over form. “Dispute Tribunals”, as borne out by the almost long-gone Government Style Book, is the proper expression. “Disputes Tribunals” even more than “Small Claims Tribunals” only serves to intensify our snake-like mouthful of aspirates. Notwithstanding the apparent triumph of the English language as today’s lingua franca, ours, so say the Chinese, is the hissing tongue. To minimise this, whether it be by way of “attorneys-general” or “dispute tribunals”, plural nouns are hardly ever compounded into a snake-pit of hissing aspirates.

In his first chapter, Professor Spiller deals with the history and nature of dispute tribunals, but, as with the rest of the book, he is apt to be complacent as to the working out of his initial formula of providing adequate redress. Is the system of dispute tribunals so immune from criticism as to be both legislatively and administratively perfect? On the other hand, his account is not presented, as it might be, as a purely positivist description of the disputes tribunal system. On a second or third reading his juristic evaluation can become more than a little cloying, especially in the context of what might be required by any more cultured rather than just barely civilised country. (The Rule of Law cannot operate in a cultural vacuum and the growth of folk-courts, summary jurisdiction, state commissioners, and instant fines, as so closely resembles the former Soviet Union, denotes a drop in the level of jurisprudentially cultured civilization).

If value judgements are to be made, then the ethos of scholarship, no less than that resultant patina of culture distinguishing civilisation from civilisations, requires more than just expositional accuracy. The foregoing strictures might not matter in a work presented purely as a popular penguin or layman’s text. Perhaps the professional like the politician may be forgiven at least sometimes for their reassuring of the nervous client — although there is a little observed canon of legal ethics by which cases and authorities should not be cited to nor discussed nor disputed with laymen. Extensive footnotes, case references, and legal citations to reports and papers, together with the book being labeled as “a reference work for all those involved in the Disputes Tribunals” require that more attention be paid to matters of scholarly ethos than might otherwise be forgiven for being a popular or penguin edition.

Juristic, like juridic evaluation is more than merely wishful thinking. Of legislation it is much more than wishfully thinking that some enactment, simply because of its high-flown political intention, is bound to be working well. If one is going to write prescriptively and not just descriptively of any legislative system, then the prescriptive writing must be undertaken just as perceptively and independently of what others think to be the descriptive writing. Peculiarly enough, especially when one considers that statute law is the sole source of authority for this system of dispute resolution, there is not, in its own words, any single, complete, and direct quotation from the Act throughout the entire book. Compare this with the multitudinous and often lengthy quotations from political, governmental, and sociological sources. The Continental, although surely never Common Law implication is that the book’s author and his secondary sources can infinitely better the legislature.

In other words, the primary source of the Act itself, in the context of the huge and effusive input of ministerial statement, governmental report, case decision and commentary incorporated into the text, has become a secondary if not indeed a tertiary legal source. Woe indeed unto us lawyers, for once again hiding what ought to be made the most obvious to all, and for yet once again by way of putting under a bushel, hiding what we profess to be the primary source of the law.

Compare Alston on The Residential Tenancies Act, Webb and Webb on Partnership, Brooker ’s Employment Relations Act, and Chapman Tripp who have given their name (surely somewhat mysteriously as any chance reader might think) to New Zealand Companies and Securities Legislation — and you have no small indication (multiplied by as many other commentaries as you care to extend the given list) of just how diversely Common Lawyers now handle and relate themselves to legislation generally, and with even more extreme diversity to specific statutes. Not only has it become increasingly hard (consequent on our newly adopted format for statute law) to recognise a statute when (or if ever) you see one (with apologies for that hypothesis to Stanley Fish); but there are obviously no two ways (as for a previous generation of students who grew up with Wily’s Magistrates’ Courts Practice or Wily’s Tenancy Act or Wily’s Transport Act) of going about it.

What teases the professional lawyer most throughout The Disputes Tribunals of New Zealand is perhaps the conflict of legality with the author ’s enthusiasm for administrative and social convenience. Cases are at least presented if not lost or won (or more usually compromised) before the tribunals as much according to whether “Helen is a smart businesswoman”, or whether “Hariata, a Maori woman, openly confesses to being very nervous”, or whether “Peter is a mild- mannered man” as to what may be expected by way of due process of law. Such descriptions owe much to Lord Denning’s derring-do. Thus, as we would expect of a folk-court, do we resurrect something of the Old Anglo-Saxon Wager of Law. This regression to old-time dispute resolution is, of course, in keeping with today’s resurrection of the Old Anglo-Saxon Blood Feud in place of the concept of the Crown’s responsibility for the administration of justice. It is a regression which allows today’s victims of crime to state their choice of punishment in court and in the press, and to enable today’s prosecuting and defending counsel to pontificate on television outside courtrooms as either chivalrous Protectors of the Law and Order or else as Champions of the Oppressed.

In all this, it need not be taken that Professor Spiller ’s own status “in having been part of the Tribunal venture” necessarily offends against academic impartiality. Greater scrutiny must nevertheless be given to any participatory author ’s perception of the way things are. This is particularly required of any such author ’s value judgements. How well does Professor Spiller ’s formula for “thousands of New Zealanders having had adequate redress” under his own Tribunal venture bear up under test? How does this formula bear up under Malcolm Arnold’s test of seeing the object of any enquiry “as the object in itself really is”?

Every participatory author wittingly or unwittingly takes himself to task. He cannot, without risk of taking stage fright or suffering writers’ block, be both on stage and in the audience any more than he can be both writer and reviewer or be both creator and critic at one and the same time. The creative and critical faculties are seldom exercised simultaneously — and only nearly so (Genesis 1:3-31) even by the Divine.

With our current decline in critical function, the seemingly Biblical no-end to books (Eccles. 12:12), and more especially the Tertiary Educational Authority’s bureaucratic insistence on the self-aggrandisement of academic status, it seems all too petty-fogging to pick on points of scholarly independence. The author ’s lack of non-participatory status does not damn his juristic endeavour, for he is, arguably, no more than a lay referee. These days even judges write legal commentaries without being seen to endanger their judicial status. For ivory towers to remain ivory towers, however, academic status must remain surprisingly at odds with contract. Once upon a time, that independence was the whole point of academic tenure no less than it remains still vaguely of judicial tenure. The judiciary may now apparently give conference papers and in their pretence at being academic, go on to publish without being damned, but, if scholarship still means scholarship, maintaining a certain ivoried height above ground level is still required for academic independence.

Experiential, and particularly participative involvement with any enterprise does not debar one from all forms of evaluating the enterprise. The pejorative or whistle-blowing response remains immune. By way of being mostly against self-interest, this expresses one of the most strenuous exercises of social conscience. But among those with expertise enough to advise governments — especially on constitutional and highly controversial issues — whether through choice of personnel or their efforts to please, the sound of the whistle is rarely heard. Throughout public life one witnesses instead the rise of the confidentiality clause. Having climbed down once from their ivory tower, governmental consultants rarely regain their intellectual independence. Like the writer Defoe, they are mistaken thereafter for being government agents. Doubtless, the new public funding regime of the recently established Tertiary Educational Authority is set to shorten if not altogether raze the ivory tower, so it is pointless here to rabbit on about academic independence.

Whether done advertently or inadvertently, the decline of the legal system, as well as of the legal profession (correlative to the politicization of legal scholarship) is most fully and accurately documented for all time by this book. It merits very close reading — a far closer and deeper reading than those who have prefaced or forwarded its provisions. The strength of Professor Spiller ’s commentary lies in its strongly sequential and well integrated literary exposition of the disputes tribunal system; its well written-up, advantageously footnoted, and comprehensively coordinated compendium of mostly domestic but otherwise aptly referenced overseas resource material; its lucid, although at times deceptively perlucid style of presentation; its strongly systematised structure of carefully chaptered, informatively head-noted, and appendexed exposition; its persuasive promotion of all the righteously engaged aspirations with which the legislature legislated the Act; its provision of as notoriously engaging an account of the Act’s parliamentary history as any but the most positivist proponent of parliamentary sovereignty would wish for; its exercise of a fine eye for detail as well as the legal and literary expertise by which to avoid clouding the issue or getting into conflict with the overview; and finally its real flair for coordinating a sense of the dramatic with the purely expositional, by which the reader ’s active engagement with the text promotes the reader ’s ready understanding in a functional as well as a textual way.

Above all, Professor Spiller presents a composition, as Thomas Carlyle of literary and historical fame would say, and not just a compilation of data. So too, more than just a compilation, whether of data or opinion, would be expected of today’s legal commentary. This is the thrust of our now much managerially misused concept of “making a presentation”. Computers can suffice for compilations — but people are expected to make a stand. Computers have no conscience, so people are expected to make a more sensitively-aware and conscientious stand than they might otherwise be called upon to make without computers. The trouble is that most stands taken in relation to one’s own work rarely surpass either pleas in mitigation, politically correct presentations, or self- laudatory commendations, and the prevailing temptation is to avail oneself of all three writing genres at the expense of genuine legal commentary by way of being objectively distanced exposition and criticism.

The Disputes Tribunals of New Zealand presents an exceedingly accurate world- view of the way in which matters of the economy are ousting the jurisdiction of the courts. Professions, particularly the legal profession, quickly supplant their sense of vocation and calling for public service with the passion of the times for entrepreneurial business. This is a picture very typical, not only of the twentieth- century triumph of the economy over legality, but, as with the medieval triumph of the Treasurer over the Justiciar, symptomatic of those periods in which fast- moving monetarisation becomes the measure of all things. Professor Spiller ’s book provides a well-documented resource for this prevailing phenomenon of the legal system, before being eclipsed shortly by monetary failure, and the supercedure of some other system over the present monetarised economy. Future legal historians will value this resource more for its implicit than its explicit value-judgements in demonstrating its own signs of the times. The forwards written by successive Ministers of Courts then come into their own as contributing valuable insights into the way that events still move from the top down rather than from the bottom up.

Could Professor Spiller ’s book achieve what all the many political and judicial encomiums attribute to it, and yet still more by way of meeting the previously enumerated complaints of this reviewer? Carlyle, in his famous review of Lockhart’s Life of Scott, points to one of the many paradoxes that affect book production. Lockhart’s book would have been by far the better book of biography in one volume than it could ever be in the published seven volumes, but it would sell more copies in seven volumes, thought Carlyle, by teasing the public into believing that they were thereby purchasing a definitive edition.

Length is not an issue for the Disputes Tribunals of New Zealand. Price might be, but statutory amendments and case decisions since the first edition, together with the comprehensive categories of readership advocated from a ministerial level in both editions ensure a continuingly captive audience. What stands in the way of this being a better book is not so much any shortcoming (although there are many) of the author, but the sorry state of first the legal system in compromising its constitutional ideals, and secondly of the system of legal publishing by its compromise of stoutly professional and academic standards. Legal exposition, legal critique, political promotion, and personal participation are not mutually interchangeable. Any black mark must also be shared with Alan Witham as the named publishing editor. Brookers profess to be professionally legal and academic publishers.

Should our legal system ever regain its responsibility to maintain the courts, to retake its formerly firm grip on legality in place of administrative expediency, and to resume something like the royal authority of law, then this work, as already surmised, will provide a valuable historical resource. I dare say however that the royal authority of the law is gone (as most folk think “for good”) and that, in keeping with many other legal commentaries, this work too will prove to be unfortunately ephemeral. This is not the age in which to expect legal academics to produce classic texts such as Cheshire and Fifoot on The Law of Contract. (The judges with their confusion rather than fusion of equity with common law and their judgments on unfair enrichment have put paid to that possibility).

Accordingly the summary and folk-moot process of dispute resolution may be no worse but much better than one might expect of any declining legal system. Literary, but still not legal criticism, has learned that one cannot seize the day or moment, carpe diem, if the day or moment is simply not there for the seizing. From this point of view, as from those others previously mentioned, this book serves a purpose in recording and thus serving to stabilize a state of otherwise unstable legal equilibrium. Maybe, speaking tongue-in-cheek (as we must explicitly state for those who might mistake the spoof for being serious) the Tertiary Education Authority should actually penalise all those who attempt to write any classic legal text today. Shades of Samuel Butler ’s Erewhon — they already do so by expecting every academic to complete and publish innovative research (aside from teaching and service commitments) at the rate of once a year! The Disputes Tribunals, replete as it is with testimonials from the rich and famous, is very much that kind of book, but without more rigorous attention paid to the principles of objective scholarship is never going to transcend the second-rate.

Meanwhile, the author ’s very contagious enthusiasm for alternative dispute resolution is more than yet another nail in the coffin of the courts. Adding as I do only another single solitary mourner to the passing of the concept of legality will be magnificently offset by those many thousands who, long since receiving Shakespeare’s counsel “to hang all lawyers”, have already traduced a lawyer ’s calling by setting up the gallows.

I would not of course remark on this book being yet another nail in the coffin of the courts, nor think myself to mourn the passing of the concept of legality were this a legal commentary of pure exposition. I say so only to counter both the explicit but more often implicit value judgements to be found in Disputes Tribunals of New Zealand. They convey a forceful validity to the casual and lay reader that may not persist under closer scrutiny. Thus, on first reading of Disputes Tribunals, this reviewer confesses to having been convinced in favour of the tribunal system and its function. There is a distinctively cheerful forcefulness to many of Professor Spiller ’s value judgements, and this reviewer must still admit to a residual hankering to establish the truth of most of them. Would it not be wonderful to conceive of a world without any need of law and lawyers, and without any need for legal education, where disputes, such as arise, can be decided at least by mediation if not directly, simply, by no more than commonsense and fair-play and little outlay among the disputants themselves? Then how come disputes arise?

This cheerful forcefulness may not be felt by all who come before the Tribunals (for which the issues traversed in McGrath v Municipal Mutual Insurance HC Greymouth CP11/92, CA377/92 provide the obvious example). To those unaware of the apolitical neutrality and non-participatory commitment required at the far more theoretical level of legal commentary rather than at the level of legal journalism, the forcefulness and reassuring general optimism of The Disputes Tribunals of New Zealand could prove somewhat misleading. Of the couple or so cases a year which students take the initiative to discuss with this reviewer, even those students that are successful in their claims are not always impressed with the tribunal process. What ought to trouble all lawyers, as it does at least a few participants in the tribunal process, is the way in which decisions dismissive of legality are bound to whittle down respect for the law. Deciding things administratively and deciding things legally are worlds apart. The reviewer appreciates how much more he has learnt from a close and rewarding reading of this book of the very great distance that exists between these different worlds.

It is a distance to be measured in terms of keeping alive the doctrine of the separation of powers. If that be the custodial role of the Courts then quis custodiet ipsos custodes so also is it even more so the role of Faculties of Law.

Nigel Jamieson,

Senior Lecturer in Law, University of Otago.