Why the principles of natural justice are important
“That’s not fair!” is common complaint of children. When children say that they are usually referring to what they consider to be unfair about a process they have been involved in (such as a decision on a disciplinary issue) or how other children have been treated in comparison with the treatment they have experienced.
Although they and their parents may not realise it, when children say “that’s not fair!” they are calling on the principles of natural justice. From childhood, we all instinctively believe that:
- Investigative and decision-making processes should be “fair,” and
- If a decision-making process is “fair,” similar consequences will result from similar actions by similar people.
Those beliefs sum up the principles of “natural justice.”
What are the principles of natural justice?
Natural justice has been described as “fair play in action.” The requirements of natural justice depend on the circumstances of each particular situation and the subject matter under consideration. Accordingly, the specific requirements of natural justice and how rigorously they are applied varies according to the circumstances where they may be relevant (Furnell v Whangarei High Schools Board  2 NZLR 705 (PC) at 718).
As the Law Commission pointed in the context of societies (in its Report 129, A New Act for Incorporated Societies, NZLC R129, June 2013, para 8.17):
The two basic components of natural justice are:
- the person complaining or complained about has a fair opportunity to be heard on the matters in issue; and
- the decision-maker is free from bias (including apparent bias) or pre-determination.
Those two basic elements can be broken down further and the primary principles of natural justice (the applicable requirements may vary according to the context) include the following:
- A person must be given reasonable, full, clear, and definite “sufficient notice” of the alleged wrongdoing the person is accused of (even if he or she might be said to know the nature of the complaints or charges), and the required degree of detail depends on what a person needs to know to be able to respond to accusations. If the person’s position or status is in jeopardy, then, without giving any indication of pre-determination, the person should also receive advance warning that his or her position is at risk.
- A person is entitled to a reasonable time to prepare his or her response to any complaint or charge.
- The person being accused of wrongdoing is entitled to a fair opportunity to put his or her case in response to the complaints or charges. However
- Unless any relevant rules so provide, the accused person is not entitled to insist on hearing witnesses and cross-examining them, but
- If those considering the complaints hear from the complainants or other witnesses in person the accused person must be present when this occurs.
- Where similar complaints or charges are brought against several people they may be entitled to appear and be dealt with together.
- If an accused person is given notice of the complaint and an opportunity to respond and refuses or fails to do so, he or she cannot later complain if a valid adverse inference is drawn from other, unexplained, proved facts.
- If the rules provide for a formal hearing of the complaints or charges, the accused person is entitled to hear all that is said in support of the complaints or charges, to answer them, and to a fair, unbiased hearing.
- There appears to be no absolute requirement to hold a separate hearing on the issue of penalty if the complaints or charges are upheld (although this may be desirable), but the accused person must have an adequate opportunity to make submissions as to penalty if the complaints or charges are upheld.
- If the accused person is disciplined, he or she is entitled to be advised of any rights of appeal.
- The accused person is entitled to have the complaints or charges and penalty determined in good faith by unbiased people.
That may all sound very formal, but what is really required is basic fairness. The Courts have, in appropriate cases, sought to allay fears that too much formality will be required:
- The Court of Appeal has observed (in Royal Australasian College of Surgeons v Phipps  3 NZLR 1 (CA) at 16) that the obligations of natural justice, “… [N]eed not be met in any particular formal way. This is an area of broad principle, not precise rules, turning on the nature of the power being exercised and all the circumstances.”
- A New South Wales judge noted that a society committee need not dot every “i” and cross every “t” as might be required where a charge is heard by a Court (Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLC 421 at 426).
- The Courts will also defer, to some degree, to the specialist expertise of those associated with a recreational activity or sport, as illustrated in Stratford Racing Club Inc v New Zealand Thoroughbred Racing Inc (High Court, Wellington CIV 2005-485-555, 6 December 2005, Miller J, at ), where the judge adopted some helpful statements from the UK Court of Appeal (in Flaherty v National Greyhound Racing Club Limited  EWCA Civ 1117 at  – ):
It is important to bear in mind the words of Mance LJ in Modahl v British Athletic Federation Limited  1 WLR 1192, 1226 para 115 to the effect that a conclusion that the disciplinary process should be looked at overall matched the desirable aim of affording to bodies exercising jurisdiction over sporting activities as great a latitude as is consistent with the fundamental requirements of fairness. In this regard he cited the words of Sir Robert Megarry V-C in McInnes v Onslow
Fane [ 3 All ER 211;]  1 WLR 1520, 1535 F-H approved by Sir Nicolas Browne-Wilkinson V-C in Cowley v Heartley, The Times 24 July 1986:
“I think that the courts must be slow to allow an implied obligation to be fair to be used as a means of bringing before the court for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause.”
I respectfully agree with the observations of Sir Nicolas Browne-Wilkinson V-C that it is the courts’ function to control illegality and make sure that a body does not act outside its powers. But it is not in the interest of sport or anybody else for the courts to seek to double guess regulating bodies in charge of domestic arrangements.
Sports regulating bodies ordinarily have unrivalled and practical knowledge of the particular sport that they are required to regulate. They cannot be expected to act in every detail as if they are a court of law. Provided they act lawfully and within the ambit of their powers, the courts should allow them to get on with the job they are required to do. …
Common breaches of the principles of natural justice
In this author’s experience, complaints about the lack of fairness in disciplinary processes fall into two main categories:
- Allegations that those involved in dealing with disciplinary issues have acted like a “kangaroo court” (that is, the aggrieved person believes that a panel was incompetent and/or biased, violated the principles of natural justice, and ignored the basic requirements of due process), and/or
- A decision has been made without the accused person being given the opportunity to respond to allegations and/or make representations as to any penalty.
Applying the principles of natural justice in practice
Ideally, to reduce the potential for complaints about poor disciplinary processes, organisations should ensure that those making decisions on contentious issues are competent, unbiased, and aware of the principles of natural justice and the basic requirements of due process set out above.
Other articles that may be of assistance include The Need for an Effective Societies’ Complaints Mechanism and Dealing with Dissidents .