Q9: What does the duty of fairness require?

A decision-maker should think carefully about the persons who may be affected by the decision and how they may be affected. The greater the potential impact on a person or group, the greater the requirements of fairness. This is particularly so if adverse findings may be made.

The principles of natural justice, including the right to be heard and the rule against bias and predetermination, form the greater part of the duty of fairness.

Natural justice is “not to be confined within certain hard and fast and rigid rules
Natural justice is “fairness writ large and juridically. It has been described as ‘fair play in action’.”
Furnell v Whangarei High Schools Board [1973] 1 All ER 400 at 412

However, ‘fairness’ is not a term of art. What is required will depend on the nature of any rights or interests affected and what procedures are necessary to give those affected a proper opportunity to put their case to the decision‑maker and for the decision-maker to weigh that material with an open mind. 

The right to be heard and the rule against bias are also not independent principles. Open-minded decision-making will often favour hearing from affected persons. Both aspects of natural justice are also protected under s 27 of the New Zealand Bills of Rights Act 1990.

Fairness may require the decision-maker to give the affected person one or more of the following:

  • full information about the decision;
  • a chance to be heard on the matter before the decision is made;
  • reasonable time to prepare a case;
  • opportunity for legal representation;
  • an oral hearing with legal representation and an opportunity to test evidence against them (such as, where appropriate, cross-examining witnesses);
  • prior notice of proposed findings or the risk or likelihood of adverse findings;
  • reasons for, or an explanation of, the decision.

The following questions in this part of the guidance delve into some of these matters in more detail.

The Court held that statutory Benefit Review Committees required express legislative authority to lawfully use fictitious names and signatures when issuing decisions under the Social Security Act 1964.  Concealing the names behind pseudonyms meant that the individual concerned was unable to challenge appointment of decision-makers on the basis of bias or other ineligibility.  This in turn breached the right to natural justice affirmed in section 27(1) of the Bill of Rights Act.  Health and safety requirements to the decision-makers concerned did not justify the use of pseudonyms.
Chief Executive of the Ministry of Social Development v L [2018] NZLR 2528

The overall question is, ‘what is a fair process for any people affected in these particular circumstances?’