"Defining an elephant" : determining the content of fairness and the role of legitimate expectation in New Zealand

Abstract

The object of this thesis is to define the content of procedural fairness as applied by the New Zealand courts. In order to provide an historical context for the examination of the content of procedural fairness, the development of the doctrine of fairness is traced, starting with a seventeenth century common law decision on the principles of natural justice. The thesis illustrates how the change, early this century, in the courts' approach to the application of these principles gave rise to refusal to review a large number of decisions, despite clear evidence that the basic requirements of natural justice had not been observed. The reasons for the change in approach by the courts are explored, as are the subsequent moves, in the 1960s and 1970s, to abandon this restrictive approach by adopting instead the doctrine of procedural fairness. The emergence of the doctrine of fairness is considered, and the resistance to it, generated by anxiety about uncertainty and inconsistency in decision-making, is examined. In order to prove finally and conclusively that those concerns were unfounded, the thesis addresses the question of the content of procedural fairness. To that end, a survey of New Zealand administrative law cases is undertaken, covering cases from 1969 to 1993. The essence of those judgments is distilled into a test for the content of fairness. That test, it is argued in the thesis, provides a simple but critical guideline for those exercising decision-making functions in respect of one or several particular individuals. The thesis then demonstrates how the doctrine of legitimate expectation fits with the approach to procedural fairness already outlined. This provides a comprehensive and coherent set of procedural safeguards which must be applied to all administrative decision-making functions. In the light of that, the thesis argues, those who claim that legitimate expectation must protect the substantive outcome are proved wrong. This conclusion is backed up by a consideration of the leading cases in legitimate expectation and also of a number of cases which illustrate the problems encountered in the development of the doctrine. Finally, the legitimacy of this approach to procedural protection is demonstrated by the consideration of the work of a number of writers in the area. The conclusion is that the approach defined in this thesis is not only legitimate, but essential to the legitimacy of the existing political structure.