Creating a system of appeal, review, and complaint
This is a single section from Chapter 28. Read the full chapter here.
What other procedural safeguards should be 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.
Some common procedural protections for appeals, many of which are provided for in the Criminal Procedure Act, and the District Court Rules and High Court Rules 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.
Most of these protections are inherent in providing an appeal and, even if they are not expressly stated in the legislation, the court may “read them into” the legislation if doing so is necessary to give the legislation a meaning that is consistent with NZBORA.
Some of these protections are more dependent on the particular context (for example, legal representation or the right to call witnesses). In this case, what is appropriate and proportionate should be assessed in light of the character of the decision-maker and the context of the decision that is made. The risk of creating a longer process, increasing costs, or adding complexity needs to be balanced against the need to ensure that an appeal is conducted fairly and in accordance with the principles of natural justice.