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A Timely Reminder On Members' Rights To Natural Justice

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Recently the High Court provided a timely reminder that courts are prepared to revise decisions, by incorporated societies, which fail to observe the rules of natural justice.

In Gibson v New Zealand Land Search and Rescue Dogs Incorporated [2012] NZHC 1320, the New Zealand Land Search and Rescue Dogs Incorporated (“SAR Dogs”) decided to expel one of its members, Mr Gibson, as a result of events occurring at an evaluation camp held in August 2010.  It was alleged that his behaviour at the camp was “inappropriate, divisive and immature”.  Mr Gibson appealed, without success, and then applied to the Court to have his expulsion quashed on the basis that he had not been provided with the right to natural justice.

Under Section 27(1) of the Bill of Rights Act 1990 (“Act”):

“Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.”

Natural justice comprises of two rules: 

1.              The rule against bias:

This principle requires impartiality in decision making. A decision-maker who is biased (whether actual, imputed or apparent) should be disqualified from hearing the issue, unless the decision-maker discloses the personal interest and the parties agree to the person’s continued involvement. This principle requires the decision-maker to approach the matter from a disinterested perspective so that there is no impropriety.

2.              The right to a fair hearing:

The right to a fair hearing requires that participants should not be penalised by decisions, that affect their rights, unless they have been given:

•   prior notice of the hearing;
• disclosure of relevant material – in other words, they should be provided with all relevant material relating to a decision, including details of the allegations against them so they can prepare, and have the ability to challenge or correct, any material at issue; and

• an opportunity to be heard –  all parties to a dispute should have the right to be heard by the decision-maker.

Any irrelevant considerations must also be disregarded by the decision-makers and the actual decision reached must not be absurd or unreasonable.

In this case, the Court agreed that Mr Gibson had not been made aware of the full nature of the complaint prior to the SAR Dogs committee decision. In fact, only a portion of the allegations were put to Mr Gibson to respond and, as such, he was not provided with an opportunity to challenge or correct all allegations.

In addition, SAR Dogs also breached the rule not to act impartially in three ways:

1.       During the Committee meeting, SAR Dogs took into account the observations of three Committee members who were present at the camp where the incident took place.  As these members effectively acted as witnesses, to the complaint, they should not have also been Committee members;

2.       Mr Gibson’s “appeal” was not heard by an independent body, but by five of the six people who had made the original decision to expel him; and

3.       While one Committee member did excuse himself from the subsequent “appeal”, for bias, he still wrote to all Committee members with the intention of influencing their decision. 

Interestingly, the Judge held SAR Dogs’ constitution to be fundamentally flawed as it afforded that any appeal be considered by the original decision-makers.

So, while the Court had sympathy for the SAR Dogs, in that it is a small organisation dependent on volunteers and with limited access to legal advice and assistance, it believed the organisation still needed to ensure that Mr Gibson was treated fairly when initiating and considering any complaint against him. Accordingly, some of the consequences to SAR Dogs, for failing to provide procedural fairness, were as follows:

• Being occupied in a time-consuming legal matter – the original decision took place in November 2010. The final decision by the Judge in the High Court was September 2012;
• Costs being awarded against SAR Dogs for Mr Gibson’s legal fees - SAR Dogs would also have to pay the costs of its own legal advisors; and
• Having the unresolved issue of a divisive member still being part of its organisation.

Accordingly, this case serves to remind organisations that, even though there may be strong reasons to make disciplinary decisions against their members, they must ensure that the correct procedures are followed in accordance with their constitution and the principles of natural justice. 

The first step, however, is for organisations to get their constitutions right.  There is no point following a process, in a constitution, if that process does not meet the requirements of natural justice under law.  Then, if disciplinary action is to take place, get advice to make sure that the process is correct and that any decisions will be made fairly. Where decisions are carried out, with procedural fairness, the risk of having such decisions reversed can be minimised if not eliminated. 

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