Local authorities, natural justice and bias
All public decision-makers are subject to constraints when making decisions. Some of those are statutory constraints. Some arise from legal tests impose by the general law. Other arise from fundamental precepts of fairness. If they are breached, then decisions can be open to challenge.
Natural justice
The principles of natural justice are concerned with ensuring that any given decision-making process is fair. It has been described as "fairness writ large and juridically, fair play in action".[1] It requires any decision-maker to act in good faith and fairly listen to each side. There are two main planks to the armament of natural justice: (a) that parties are given adequate notice and opportunity to be heard; and (b) that the decision-maker is disinterested and unbiased. However, the true requirements of natural justice are mercurial and will differ according to the content of the decision to be made.[2]
Bias
The rule against bias prohibits a decision-maker from being a judge in his or her own cause.[3] The rule relates to impartiality, doing justice between the parties, and maintaining public confidence in the administration of justice. This point was made by Lord Hewart in his canonical aphorism that "[j]ustice should not only be done, but should manifestly and undoubtedly be seen to be done".[4]
Bias will arise where a decision-maker is predisposed towards a particular result. In this case, we are looking at a species of bias called "apparent bias". This is where there are no pecuniary interests involved. The test for this species of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker would not bring an impartial mind to the resolution of the case.[5]
However, as with pre-determination (discussed below), knowledge of previous matters, and even giving previous indications of support, will not necessarily disqualify a decision-maker for bias.[6] The question is whether the decision-maker is reasonably open to changing its mind when making its decision.[7]
Pre-determination
The test applicable for pre-determination will differ according to the circumstances of the decision being made.[8] However, at its broadest, the rule against pre-determination requires that the decision-maker approaches a given issue with an open mind and has regard to all relevant considerations.[9] This does not mean that decision-makers are not permitted to form views in advance of the decision.[10] It simply means that they are open to views being advanced at the time of making the decision.[11] The general content of the rule was aptly captured by Tompkins J in Blacklegde v Social Service Commission in the following terms:[12]
It must appear that the member or body not only holds an opinion on the issue, but intends to adhere to the point of view expressed, uninfluenced by any further evidence or argument afterwards addressed to it.
[1] Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718.
[2] At 718.
[3] R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No 2) [2000] 1 AC 119 (HL) at 281.
[4] R v Sussex Justices, ex p McCarthy [1924] KB 256
[5] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 71, [2010] 1 NZLR 35.
[6] Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 at 500.
[7] Friends of Turitea Reserve Society Inc v Palmerston North City Council [2008] 2 NZLR 661 (HC).
[8] CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 194.
[9] New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552 (per Cooke P) and 559 (per Richardson J).
[10] Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203 (CA) at 207.
[11] CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 194 (per Richardson J) and 214 (per McMullin J).
[12] Blacklegde v Social Service Commission HC Auckland CP81/87, 17 February 1992 at 15.