Alien Species.vp - IUCN

Paula Warren
Who Should Make the Decisions?
The decision-maker should be the appropriate body given the nature of the decision. In
deciding who is appropriate, account should be taken of several factors, based on an analysis of
who are the relevant communities of interest. For example, a decision may affect primarily the
local community, with little impact on anyone else. Alternatively, it could have major
implications for the national community of interest. The decision-maker ideally should be
accountable to the significant communities of interest, so in the case of an issue largely
affecting the local community, it would be appropriate for the decision to be made by a locally
elected body (in New Zealand this would be a local authority); if the national community of
interest is the primary group, then a central government Minister may be most appropriate.
Decisions need not always be made directly by elected and directly accountable people. This
is clearly desirable where the decision involves a significant political element. But if the
decision is largely technical in nature, then an appointed and expert body (for example
departmental officials or an appointed committee) would be more appropriate. Even where the
decision is to be made by an elected body, it is often desirable to ensure that it is serviced by an
expert group.
Relevant to this is whether the decision-maker is significantly constrained by legislation or
other guidance, or has considerable discretion. Greater discretion implies the need for a greater
focus on process and accountability. In New Zealand, decisions in fields with little guidance in
law tend to be made by elected representatives.
It will also be necessary to decide how many layers of decision and appeal will be provided,
and the nature of any appeals. In New Zealand legislation, several approaches are taken:
1. The primary decision-maker is the final authority, subject only to High Court review
based on administrative law principles (i.e. reasonableness, fairness, proper
considerations and process and the like). If the High Court rules that a decision was
improperly made, the Court generally will direct the original decision-maker as
responsible for making a new decision.
2. As for (1), but with an option before the decision is made to “call-in” the decision either
from the non-elected decision-maker to a Minister, or from a local authority to a
Minister.
3. The primary decision can be appealed to a body that considers it “de-novo” and makes
the final decision. In this situation, the decision can then only be subject to appeal on
points of law.
4. The primary decision is a recommendation to a Minister, subject to de-novo appeal, with
the product of that appeal being a final recommendation to the Minister. The Minister’s
decision is subject to appeal on points of law. (Note that this is an unusual arrangement
not without its critics.)
Appeal on points of law may be made to as many as three Courts (High Court, Court of
Appeal, Privy Council).
In New Zealand, decisions on alien species issues are made at three levels:
1. The democratic process, through Parliament, sets the overall rules. These are expressed
within legislation and regulations. The rules may be highly specific and rigid, or they
may establish the matters that will be considered in decisions. Parliament also specifies
who is responsible for lower level decisions.
2. Major decisions, particularly those with a political element, may be made by the
appropriate elected Minister. The Minister must act within the constraints set out in the
legislation, and is subject to High Court review. The Minister may, in some cases,
delegate decisions to officials, but retains accountability for the quality of the decisions.
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