Howard's End: What Is Natural Justice?

A Scoop reader was talking to correspondent Maree Howard and said; "You've written a lot about natural justice and ACC and although I am not on ACC, what is natural justice?" Maree is not a lawyer but Scoop thought the question was important to all our readers, so she set out on the path to find justice by talking to some lawyers. This is her report but please remember this is not legal advice. It's best to pay a lawyer for that.

Each year tens of thousands of decisions are made by Government and its agencies which affect people's lives.

Natural justice is a legal requirement that applies to people in government who have the power to make decisions which affect the rights, interests and expectations of New Zealanders. Of course, this also includes local government. Natural justice can be enforced by the courts, administrative tribunals and Ombudsmen.

The New Zealand Bill of Rights Act in Section 27, provides for an aggrieved person to apply for a judicial review in the High Court if they believe the observance of the principles of natural justice has been breached. It ought not to be, but this can be a complicated process. The Court has a range of remedies available to it if a breach is found. This may include such things as awarding compensation in extreme cases or perhaps declaring the decision invalid.

But that's not the start of observing the principles of natural justice.

Natural justice essentially imposes a code of fair procedure on the person making the decision with the most important element being the "hearing rule."

Not all government decision-making is subject to natural justice. It mostly applies to decisions that adversely affects an existing right, interest or expectation of a person or body such as a company or private corporation.

For example, natural justice would apply to a decision to cancel a licence or benefit, to dismiss an employee, to impose a disciplinary sanction, or to publish a report that damage's a persons reputation.

The purpose behind natural justice is to ensure that decision-making is fair and reasonable, but it is important not to confuse those objectives with what is legally required.

Whether a decision complies with natural justice depends not on whether the decision itself is fair and reasonable, but on whether a fair and proper procedure was followed in making the decision. As one High Court judge has put it: "properly and fairly."

It is fair play in action.

A decision must be objective, but it must also be rational and not depart from the reality of the real world.

That is where organisations like the ACC can get themselves into trouble because I've seen cases where an employee has made an arbitrary decision without providing a fair opportunity to the person affected to respond or to be heard. Of course, they are not the only one's, but at the moment they do seem to be the worst offenders.

Under natural justice, an invitation to make a response before the decision is made or sanction put into effect is crucial. ACC does not come under the State Services Commission who have excellent processes and oversight systems in place for employees to follow.

Hearing the other side of the story and fairly and reasonably considering it, is critical to good decision-making.

As one judge put it, "the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by consultation, suffered a change."

Fairness demands that a person be told what is called "the case to be met" and be properly heard in reply before a Government agency or organisation makes a decision that adversely affects an existing right, interest or expectation the person may hold. In too many case in New Zealand this is not happening.

It is simply unacceptable for a Government organisation, employee or other person charged with up-holding the principles of natural justice to attempt to walk away from making fair and proper decisions and rely on reviews or the courts to put things right.

Essentially, natural justice means:

* A fair hearing

* A hearing appropriate to the circumstances

* A hearing before the decision with an open mind when reading or listening to submissions

* Full disclosure before the decision

* A reasonable opportunity is given to respond

* Genuine consideration of any written and oral submissions

The "hearing rule" problems areas:

* A hearing to late

A hearing that is premature

* Non disclosure

* Failure to honour commitments

* Non-renewal of an existing right or interest

* Legalistic and restrictive practices which Parliament could not, or would not, have contemplated

* Failure to cure a known defect

Other aspects of natural justice;

* Bias ( such as financial interest, favouritism, hotility shown, closed mind, judge and accuser)

* Lack of evidence to support the decision

*Lack of inquiry into original or newly raised disputed matters

So what are the standards for good decision-making?

Good decision-making is multifaceted. There are many competing procedures to be balanced - including the demands imposed by law, objectives defined by government policy, legitimate expectations raised by the person, and time and resources.

At all levels the good decision-maker will ask:

* Will anyone be adversely affected by my decision?

* Is there proper legal authority for the decision?

* Who has the legal authority to make this decision?

* Why is this decision being made?

* Has natural justice been observed with everything received and taken into account?

* Will the supporting papers identify the individual merits of the decision?

* Is the decision based on facts, or on generalisations or on my personal view or opinion?

* Who is checking that my decision is correct before I issue it?

* What is the critical or turning factor?

Has the decision been made expeditiously?

Is it appropriate to internally review this decision before I issue it?

Government agencies often give advice or make commitments about future decision-making. This is done in service charters, manuals, operating procedures, and (indirectly) in international conventions which New Zealand has signed. Often these commitments are not legally binding - not having been enshrined in legislation - but natural justice nevertheless, requires that a person be informed of a proposed departure from an undertaking before a decision is made that adversely and individually affects that person.

The High Court of Australia said in a recent case; "The closer a decision is to having finality or consequences for the individual, the more likely it is that natural justice requirements apply."

".....the right to appeal is insufficient to conclude that Parliament intended that the the delegate was not required to accord natural justice in the manner asserted," it said.

Therefore, the original decision-maker simply cannot walk away from making a fair and proper decision which affects the rights, interests and legitimate expectations of affected people.

The New Zealand Bill of Rights Act, being a piece of human rights legislation, must be accorded a broad purposive interpretation that will give effect to the spirit of the rights contained in it. It is not to be construed narrowly or technically.

It is to be given a generous interpretation avoiding what has been called by judges " the austerity of tabulated legalism" suitable to give to individuals the full measure of their fundamental rights and freedoms referred to.

So, if you are a vulnerable person to a decision affecting your rights, interests and expectations, natural justice is your right and you should insist on its observance.

ENDS

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