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Building Control Amendment Regulations (BCAR)

What considerations should a Building Control Authority have in proper public administration and governance?

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Regarding any public administration for citizens, in the interest of legislative compliance for the common good, citizens must have confidence in an independent and impartial public administration system. Some citizens will be customers of individual service areas.

Procedural Fairness (Natural Justice)

There are two rules of natural justice.

1. *Nemo judex in causa sua* – ‘Let nobody be a judge in their own case.’ Decision-makers are required to be independent and unbiased. Public confidence is clearly established in the conceptual foundation for the rule against bias.

(i) Subjective approach: Requires proof of danger that the decision-maker was biased without requiring evidence as to whether he/she was/wasn’t.

(ii) Objective approach: Asking if a reasonable person impugned by the decision, or a disinterested but reasonable observer might suspect that justice wasn’t served.

(iii) Reasonable apprehension: This test, often virtually identical to the ‘real danger’ test, better reflects the guiding principle in such cases. Justice should not only be done, but also be seen to be done, therefore aiding and solidifying the importance of public perception in bias identification.

2. *Audi alteram partem* – ‘Hear the other side’ – The requirement that the decision-maker provide adequate opportunities for those affected to present their case and respond to the evidence/arguments advanced by other participants, or in the knowledge or possession of the decision-maker.

Note: Article 6.1 of the IHREC – Right to a ‘fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

Judicial Review

Only public body-made decisions can be challenged by judicial review.

Remedies:

(i) Certiorari – Quash the challenged decision

(ii) Mandamus – ‘We command/order…’ Rarely sought; ordering a public body to a fulfil a duty it is required to fulfil by law but hasn’t or refuses to fulfil.

(iii) Prohibition – Preventing a public body of judicial function from doing something it proposes to because the proposed act would be illegal or in breach of the requirements of natural justice.

Grounds

There are six general grounds, but these are not exhaustive:

(i) Ultra vires – ‘Beyond the powers’

(ii) Illegality

(iii) Breach of natural justice

(iv) Abuse of discretion

(v) Legitimate expectation

(vi) Error of law