Q10: Who needs to be heard?

A decision-maker should consider whether fairness requires a person or group who will be affected by a decision to be heard.

Sometimes a statute or regulation (or the requirements of natural justice) may require the decision-maker to hear from specific people, or consult more broadly.

Even if the statute or natural justice does not require consultation, it can be a good way to ensure that all relevant matters are taken into account and no expectation of consultation is breached.

If there are any principles of the Treaty of Waitangi at issue, there will be a ‘strong expectation’ that the decision-maker will consult with Māori. 

A right to be heard is about more than providing an opportunity to contradict adverse testimony. It also ensures the decision-maker is sufficiently informed of the facts and consequences of a decision.

When consultation is carried out, the decision-maker must be open to changing their mind.  However, consultation is not negotiation or consensus-seeking and agreement need not be reached.  The decision-maker is entitled to have a preferred option (and should say so) and is free to make the ultimate decision as they see fit.

… the reason that the observance of natural justice is so important is that hearing from all sides of the dispute can change even fixed views of the merits.
Electricity Corporation of New Zealand Ltd v New Zealand Electricity Exchange Ltd [2005] 3 NZLR 634 (CA)
An inquiry into a surgeon’s treatment of patients made recommendations about supervision of the surgeon’s work.
The surgeon did not have an adequate opportunity to respond to some of the allegations. The College’s report was quashed in part.
Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 (PC)

In some cases a decision-maker may appear to be already adequately informed of relevant views but if there is no fresh consultation there is a risk that information that may have made a difference to the decision may be missed or come to light after the decision is made. In judicial review terms, the decision-maker will have failed to have had regard to a relevant consideration.

If the statute requires consultation, any statutory requirements must be carefully followed (and will override any of the other suggestions below).

If consultation is required, it is good practice to get legal advice on the form of the consultation.  However, consider the following general recommendations:

  • When consultation is required, it is important to give early notice of a proposed decision so that those consulted have adequate time to provide their views. 
  • If a provisional view or recommendation has been formed, that should be communicated for comment by those consulted. They should be advised that it is provisional and is open to change after consultation and before a final decision is made.
  • It is important to provide persons with enough information for them to offer an informed view.  This could include: the reasons for the proposed decision, the factors considered, and any material relied on. In some cases an affected person may ask for, and must be provided with, additional information.
  • If there is any person who might be affected by the proposed decision, they need to be given a fair opportunity to comment.  If individual persons might be affected, but can’t be identified, call for public input/submissions.
  • If a person is adversely affected (particularly where the issue involves discipline/sanction), an oral hearing may be required.  In other circumstances, an opportunity for written submissions will be enough
  • If you intend to make a decision that differs from one publicised, you may need to advise any adversely affected person.  This includes where the proposed decision changes as a result of consultation – consider whether it adversely affects other people and whether they need to be consulted.
  • Before making the decision, you need to give proper consideration to any representation made in the consultation.  This means you need to have an open mind and be open to changing your view.
A Minister’s consultation process followed before closing Aorangi School was challenged by judicial review.  One aspect of the challenge was whether or not all relevant information had been provided.  The Court noted that more could have been done to provide information but that ultimately the Board (through use of the Official Information Act) had obtained all relevant papers.  Upholding the Minister’s decision, the Court quoted earlier overseas authority saying:
“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.” (R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213).
Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132
The Court of Appeal held that the statutory consultation obligation on a District Health Board was to consult resident populations rather than primary health organisations, and that consultation was not required where the Board’s plan was to maintain existing service standards for the public.
Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385
Wellington International Airport Limited was formed in 1990 to run the airport and needed to set landing fees. It wrote to affected airlines and proposed a consultative process.  Information was supplied and two consultation meetings held. Further information was requested and supplied promptly. The airlines did not complain about the process but, based on previous experiences setting landing fees for at Christchurch and Auckland airports, assumed there would be protracted discussions.  The airlines were mistaken and fees were set relatively quickly. When told of the decision to set fees the airlines did not complain about the consultation process. The Court found they chose to stay silent for tactical reasons. That failure to respond was not a failure in consultation. Consultation is not a negotiation.
Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671