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Chapter 25

Creating a system of appeal, review, and complaint

This is a single section from Chapter 25. Read the full chapter here.

Part 11

What safeguards have been built into the appeal or review process?

The appeal procedure adopted should contain adequate safeguards to protect an individual’s rights and interests and be consistent with the right to natural justice affirmed by section 27(1) NZBORA.

 

The character of the decision maker and the context of the decision that is made will determine to an extent which procedural protections are appropriate and proportionate for the new appeal process. Each protection risks creating a longer process, increased costs, or added complexity. However, these risks must be balanced against the need to ensure that any appeal is conducted fairly and in accordance with the principles of natural justice.

Some common protections, many of which are provided for in the Criminal Procedure Act, and the District Court Rules and High Court Rules, that may be appropriate and proportionate include:

 

  • independent and impartial decision makers;
  • the opportunity to be heard (whether by oral hearing or in writing);
  • ensuring parties are aware of things that affect their case ( such as notice of hearings and impending decisions);
  • disclosure of relevant material;
  • the availability of legal representation;
  • a right to call and cross examine witnesses;
  • a requirement that the decision maker give reasons;
  • the provision of interpreters;
  • the provision of a further right of appeal.

Legislation must state if any of the above protections are not included. If it does not, the court may “read into” the legislation those protections that it considers are necessary to give the legislation a meaning that is consistent with NZBORA. 

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