Section 27(1) New Zealand Bill of Rights Act 1990: Is 'Adjudicative' an Additional Element and Are Damages an Available Remedy

Abstract

This paper examines the two questions the Court of Appeal had to deal with recently in Combined Beneficiaries Union Inc v Auckland City COGS Committee. There the question arose whether section 27(1) of the New Zealand Bill of Rights Act 1990 that provides the right to the observance of the principles of natural justice applies to all breaches of natural justice. It has often been argued that this section only applies to judicial or quasi-judicial bodies making ‘adjudicative’ decisions and is therefore not coincident with the right to natural justice at common law, but narrower. This paper concludes that such an additional ‘adjudicative’ element is not required as the Court of Appeal rightly assumed. By interpreting section 27(1) of the Bill of Rights Act from different angles it can be seen that the view that an additional element is required, is misconstrued. Furthermore the Court had to determine the whether damages should be an available remedy for a breach of section 27(1) of the Bill of Rights Act. This issue often concerned the courts and has not been decided definitely ever since. In the recently decided the Court of Appeal refused to answer that question and therefore left it open. This enduring uncertainty needs to be abandoned. Therefore a short introduction to the Bill of Rights Act and the availability of remedies will be given. Furthermore the paper explores public law remedies in general, public law compensation under the Bill of Rights Act and finally public law compensation under section 27(1) of the Bill of Rights Act. The paper concludes that damages should be an available remedy under section 27(1) of the Bill of Rights Act There are no differences between section 27(1) of the Bill of Rights Act and other Bill of Rights Act rights and if damages are available for other rights under the Act they should also be available for a breach of section 27(1) of the Bill of Rights Act. Furthermore the courts need to be flexible because in some cases only compensation will be the appropriate remedy to vindicate the violated right and to meet the individual interest. Another advantage to support this approach is that certainty would be established. Nevertheless a general scheme is needed that can be applied because the award of damages should be last resort. The paper introduces provisions that should be applied when determining whether damages should be awarded for a breach of section 27(1) of the Bill of Rights Act. In the end this general scheme will be applied for the case Combined Beneficiaries Union Inc v Auckland City COGS Committee and it will be seen that the Court of Appeal came to the right decision in this case.