In short. Natural justice requires that a person who will be adversely affected by a decision is told the case against them and given a real opportunity to answer it before the decision is made. Disclosure is the instrument that makes the right to be heard meaningful: a hearing is hollow if you do not know what you are answering. This duty binds employers, the Accident Compensation Corporation (ACC), incorporated societies, and every public body exercising a statutory power, and it is protected by section 27 of the New Zealand Bill of Rights Act 1990 and at common law.
The hearing rule of natural justice is captured by the maxim audi alteram partem — let the other side be heard. It carries a plain practical corollary: you cannot answer a case you have not been shown. The right to be heard and the duty of disclosure are inextricably linked but conceptually distinct. The right to be heard is the substantive right to make representations, give evidence, and challenge the case against you. Disclosure is the instrument by which that right is given effect — the act of putting the relevant adverse material in front of the person before anything is decided.
Effective disclosure is therefore a precondition of a meaningful hearing, not an optional courtesy. Handing a person a mountain of documents is not enough; the material must be conveyed in a way that lets them understand the specific allegation they must answer, so that the opportunity to respond is a real one rather than a nominal one. An interview is not a fair hearing if the person is never clearly told what is being investigated, because it then becomes a matter of chance whether they happen to address the very concern the decision-maker is weighing.
The duty rests on two foundations that point the same way. The first is statutory. Section 27 of the New Zealand Bill of Rights Act 1990 gives every person the right to the observance of the principles of natural justice by any tribunal or other public authority with power to make a determination affecting that person's rights, obligations, or interests recognised by law. The same provision gives a person affected by such a determination the right to seek judicial review of it.
The second is the common law, which has long insisted that fairness requires both notice of the case and a genuine chance to meet it. The rationale is twofold. There is an instrumental value: hearing from all sides leaves the decision-maker better informed and can change even a settled view, as the long-standing observation in John v Rees records — "the path of the law is strewn with examples of open and shut cases" that, on examination, were not. And there is an inherent value: a fair process respects the dignity of the person, who is far less likely to feel that an outcome was imposed on them when they have had the opportunity to influence it. Those twin rationales were applied by the Employment Relations Authority in Nuri v Chief Executive of Te Puni Kokiri, discussed below.
The obligation is not to hand over every scrap of information. It is to disclose the adverse material that is credible, relevant, and significant to the decision, and to do so in substance. The decision-maker must convey the gist of that material — enough for the person to make an intelligent and useful reply. In practice this means three things. The specific allegations must be put: a vague or general accusation is not enough, because the person must know precisely what they are said to have done. The supporting evidence must be conveyed, whether that is witness statements, documents, reports, or other information the decision-maker is relying on. And the likely consequences should be made clear, so the person understands what is at stake if the allegations are established.
Timing is part of the duty, not separate from it. Disclosure must happen before the decision is made, leaving the person adequate time to consider the material and frame a response. A decision reached with a closed mind, or one that is effectively pre-determined, breaches natural justice because it turns the hearing into a formality. An unbiased consideration of the person's explanation is the minimum the law requires.
Disclosure that arrives too late, or a process where the outcome was settled before the person had their say, will not survive scrutiny. The point of putting the material early is to allow the explanation to land while the decision is still genuinely open. If concerns are raised only after a provisional conclusion has hardened, the process is exposed to challenge however thorough it looks on paper.
In employment, the common-law minimums are codified. Section 103A of the Employment Relations Act 2000 asks whether a fair and reasonable employer could have acted as this employer did in all the circumstances. It directs attention to whether the employer sufficiently investigated the allegations, raised its concerns with the employee, gave the employee a reasonable opportunity to respond, and genuinely considered the explanation before acting. Disclosure runs through every one of those steps. A defect that is minor and that did not result in the employee being treated unfairly will not, on its own, make the action unjustifiable under section 103A of the Employment Relations Act 2000.
In Nuri v Chief Executive of Te Puni Kokiri the worker was told the precise allegations — that he may have lied about the reason for his absences and falsely claimed sick leave — was warned of the possible consequences including summary dismissal, and was asked repeatedly to provide his explanation before any decision was taken. Because the case against him had been disclosed and a real opportunity to answer it given, the process was found to be procedurally fair. The determination drew expressly on the rationale in John v Rees that fairness can turn an apparently unanswerable charge into one that is answered.
Nuri v Chief Executive of Te Puni Kokiri [2011] NZERA Wellington 66 (the 2nd of May 2011).
In employment, the duty to disclose is not left to the common law alone. It is codified, and strengthened, by the duty of good faith in section 4 of the Employment Relations Act 2000, which is wider in scope than the common-law implied obligations of trust and confidence. Section 4 of the Employment Relations Act 2000 requires the parties to an employment relationship to be active and constructive in maintaining a productive relationship in which they are, among other things, responsive and communicative, and at its base it forbids each party from misleading or deceiving the other.
The decisive provision for disclosure is section 4(1A)(c). Where an employer is proposing a decision that will, or is likely to, have an adverse effect on the continuation of employment of one or more employees, section 4 of the Employment Relations Act 2000 obliges the employer to give each affected employee access to the information relevant to the continuation of their employment about the decision, and an opportunity to comment on that information before the decision is made. Those two requirements map precisely onto the two halves of natural justice: the first is the statutory duty to disclose the adverse material, and the second is the statutory right to be heard. Both are triggered before the decision is made, so the process cannot be reduced to a formality in which the outcome is settled and the consultation merely performed.
The trigger — an adverse effect on the continuation of employment — is read broadly. It reaches dismissal for misconduct or poor performance, redundancy and restructuring, and any other decision capable of bringing the employment agreement to an end. The information that must be shared is correspondingly wide: it is not confined to the documents the employer happened to rely on, and it is not limited to material that has been written down.
In Vice-Chancellor of Massey University v Wrigley the Employment Court accepted that a selection process carrying the potential to end employment fell squarely within section 4(1A)(c). The disputed material — assessment sheets, comparison summaries, and the panel's reasoning — was relevant to the continuation of the employees' employment and ought to have been provided before the final decision to dismiss them, because the opportunity to comment had to be real and could not be limited by how little information the employer chose to release. The Court was clear that although the case arose in selection for redundancy, the principle applies equally wherever employment is at risk.
Vice-Chancellor of Massey University v Wrigley [2011] NZEmpC 37 (the 18th of April 2011).
This statutory duty does not stand apart from the test of justification described above; it feeds directly into it. When the Employment Relations Authority or the Employment Court asks under section 103A of the Employment Relations Act 2000 whether the employer raised its concerns, gave a reasonable opportunity to respond, and genuinely considered the explanation, a failure to meet the disclosure obligation in section 4(1A)(c) will almost always mean those procedural requirements have not been met — and the dismissal or disadvantage is unjustified as a result.
The duty is not absolute. Under section 4(1B), an employer need not provide access to confidential information where there is good reason to maintain its confidentiality, and section 4(1C) of the Employment Relations Act 2000 sets out what can amount to good reason. But that is not a blanket right to withhold. The employer must still convey the gist or substance of the material to the extent the employee needs it to understand and answer the case, and access should be restricted only so far as is genuinely necessary — by redaction, for instance — rather than refused outright.
A recurring difficulty is the tension between disclosure and confidentiality — protecting the privacy of a third-party informant, or commercially sensitive information. The law does not grant a blanket exemption simply because information is confidential. Instead it requires a balancing exercise, and the starting point is that the need for a fair hearing will generally outweigh confidentiality concerns at least to the extent of requiring disclosure of the substance of the adverse case. Several techniques allow a decision-maker to honour both interests at once. In the employment context this same balancing exercise is given statutory shape by section 4(1B) and section 4(1C) of the Employment Relations Act 2000 discussed above, but the underlying logic — disclose the substance, protect only what truly must stay confidential, and redact rather than refuse — runs across every forum.
| Method | What it involves | What to watch |
|---|---|---|
| Summarising | Provide the substance of the confidential information without revealing identifying details or the source. | The summary must still be enough for the affected person to understand and answer the core of the allegation. |
| Redaction | Disclose the documents with sensitive or identifying passages blacked out. | What remains must stay coherent and genuinely useful for mounting a response, not reduced to fragments. |
| Seeking consent | Ask the third party to consent to disclosure, which may include their identity. | Consent cannot be compelled; a refusal may force the decision-maker back onto summarising or redaction. |
| Confidentiality orders | In formal proceedings, a body such as the Employment Relations Authority or the Employment Court can restrict how disclosed material is used. | Such orders typically confine the material to the proceeding and require it to be returned or destroyed afterwards. |
The requirements of natural justice are flexible, adaptable, and context-specific. What fairness demands varies with the forum, the nature of the power, and the seriousness of the decision's effect on the person. The duty to disclose, however, is a constant across them all.
The Employment Relations Act 2000 places procedural fairness at its centre. Before an employer takes disciplinary action or dismisses, it must run a fair and reasonable investigation, and section 103A of the Employment Relations Act 2000 sets out what that means in the terms described above. Those steps reflect the settled minimum requirements of natural justice in the employment context.
The duty does not stop at the workplace. The Employment Relations Authority is an investigative body that decides matters according to their substantial merits, and under section 157 of the Employment Relations Act 2000 that investigative role is built into its very function. Its procedure is governed by section 173 of the Employment Relations Act 2000, which requires the Authority to comply with the principles of natural justice and, where it receives material relevant to a party who is not present, to put that material to the party and give an opportunity to comment before relying on it. Disclosure is thus written into how the Authority itself must operate. The Employment Court has confirmed that, although the Authority is not a court, it sits at the court end of the continuum and is obliged to give a full hearing.
That these are live, practical questions is clear from the case law. In Pacific Flight Catering Limited v Service & Food Workers' Union Nga Ringa Toto Inc the Employment Court examined whether parties could be joined consistently with the principles of natural justice and a fair and reasonable opportunity for affected parties to be heard, alongside a dispute over whether records had to be disclosed. And in New Zealand Meat Workers Union Inc v South Pacific Meats Limited the Court held that the Authority's statutory powers to direct the production of documents must be read in light of section 27 of the New Zealand Bill of Rights Act 1990 — tying the everyday mechanics of disclosure back to the constitutional right to natural justice.
The Accident Compensation Corporation (ACC) is a public authority that makes determinations about a person's legal entitlement to cover and compensation under the Accident Compensation Act 2001. It is therefore bound by the principles of natural justice at common law and under section 27 of the New Zealand Bill of Rights Act 1990. Although the Accident Compensation Act 2001 contains no provision that mirrors the Authority's procedure rules, the duty of fairness is implicit in its structure and purpose: section 3 of the Accident Compensation Act 2001 states the object of providing a fair and sustainable scheme.
When a claim is lodged, the Corporation decides whether to accept cover, drawing on information from the claimant, from medical professionals, and sometimes from other sources. Natural justice means that if the Corporation intends to decline, suspend, or revise an entitlement on the strength of adverse information — a medical report that contradicts the claimant's position, for instance — it must disclose that information and give the claimant a real opportunity to respond before deciding. That expectation is reinforced by the Code of ACC Claimants' Rights established under the Accident Compensation Act 2001, and where a decision is disputed the review and appeal procedures in Part 5 of the Accident Compensation Act 2001 provide a formal forum in which the right to see the evidence and answer it is paramount.
For an incorporated society, the principles of natural justice apply to its domestic decision-making, particularly in disciplinary matters or a decision to expel a member. The legal basis is an implied term in the society's rules that it will act fairly. How much fairness is required depends on the circumstances — the nature of the interest affected, whether livelihood, reputation, or standing; the seriousness of the allegation and the possible sanction; and the procedure the society's own rules lay down. Even where the rules are silent, the courts will imply a minimum standard: the member must be told the specific charges, be shown the evidence supporting them, and be given a reasonable opportunity to answer before an unbiased body. The society's own constitution and rules are always the first point of reference, supplemented by these common-law principles.
A failure to disclose relevant adverse material is not a technicality. It goes to the heart of procedural fairness and can undo the decision, with the remedy depending on the forum. In employment, a dismissal or disadvantage imposed without proper disclosure can be found unjustified under section 103A of the Employment Relations Act 2000, and the remedies available under section 123 of the Employment Relations Act 2000 may include reinstatement, reimbursement of lost wages, and compensation for humiliation, loss of dignity, and injury to feelings.
For a public body such as the Accident Compensation Corporation (ACC), a decision made in breach of natural justice can be quashed on judicial review, the right to which is itself recognised in section 27 of the New Zealand Bill of Rights Act 1990; the matter is usually sent back to be decided again through a fair process. The court will intervene where there has been a basic failure of natural justice, because justice must not only be done but be seen to be done — and it may do so even where the unfairness was nobody's fault. For a member of an incorporated society, the usual course is to seek a declaration that the decision is invalid, and an injunction restraining the society from acting on it.
Legislation cited is linked to the current consolidated text on the New Zealand Parliamentary Counsel Office website at legislation.govt.nz; each section anchor used in this article has been confirmed against the consolidated text before linking, and where a specific section anchor is not relied upon the Act is linked at its consolidated root. Case authorities are linked to the Working for Workers case law and reference repository at caselawandreference.workingforworkers.nz. The observation in John v Rees [1970] Ch 345 is an English authority reproduced and applied within the linked Nuri v Chief Executive of Te Puni Kokiri determination, not separately held in the repository. The instrumental and inherent rationale for a fair hearing, the standard of a real as opposed to a nominal opportunity, and the description of the Authority as sitting at the court end of the continuum are stated as settled administrative-law principle.
If a decision has gone against you on the strength of material you were never shown, you may have grounds to challenge it. The decision-maker might be an employer, the Accident Compensation Corporation (ACC), an incorporated society, a tribunal, or any public body exercising a statutory power.
Working for Workers stands up for people facing unfair and unreasonable process, across four areas of practice:
Fairness in Law · Accident Compensation Corporation (ACC) Law · Employment Law · Incorporated Societies Evaluation
Whatever the decision-maker, if you are up against an unfair or biased process, get in touch and we will help you work out where you stand.