Natural Justice I

• The duty to accord natural justice is central to administrative law, this is enshrined as its position as the first of the criteria of judicial review under the ADJR Act. It’s breach can lead to the legal invalidity of a decision and warrants the grant of a constitutional remedy under s75(v) [Miah]

• Nautral justice is difficult to define with precision but thare are two core/traditional elements to it:

  • Prior Hearing Rule (‘audi alteram partem’) – requires that before decisions are made adversely affecting a person’s right, interest or legitimate expectation, the decision maker must give the person prior notice that a decision may be made, the information on which it was based and their right to make a submission in reply

  • Bias rule (‘nemo debet esse judex in propria sua causa’) – A decision maker must be free of any reasonable suspicion/apprehension of bias or preconception arising from circumstances like their prior expression of views

• Two suggestions as to where the rules of procedural fairness extend to other stages of the DM process are:

  • The Probative evidence rule (must be some evidence to support a decision) is closely connected to the obligation to be procedurally fair and make findings based on evidence which are not arbitrary nor irrational

  • Duty of inquiry – placed on some DMs to clarify information especially where the DM is in a better position to obtain the information (special advantage that he has or a disability of the applicant)

• Natural justice has its origin in common law and these requirements are read into statutory powers to ensure procedural fairness. The ADJR Act version of the ground doesn’t elaborate on definitions (presumably leaving it to the CLAW) it providing that review can be sought on that ground

  • s 5(1)(a) – that a breach of the rules of natural justice occurred in connection with the making of a decision

• In Plaintiff S157 Gleeson CJ intimated that the prices content of the requirements of natural justice/procedural fairness/duty to act judicially varies according to the statutory context but essential to it is fairness and detachment

  • Fairness and detachment involve the absence of the actuality or appearance of disqualifying bias and the according of an appropriate opportunity to be heard

    • Accordingly statute can prescribe the consequences for a failure to observe it

History of the Doctrine

• It’s origins are disputed (some say Garden of Eden Cooper, lines from Seneca’s Medea, the HS Constitution etc.) – but the bottom line is that it has universal appeal

• Natural justice initially applied only to courts unless the legislation establishing the body implied a duty to act judicially – the common law rule is that natural justice is taken to apply unless expressly excluded (Miah)

Rationale for the doctrine

• It is regarded as a fundamental tenet for good administration (Cooper) as promoted better decision-making by ensuring relevant information is before the decision-maker it makes it more likely that a decision-maker is diligent and objective in reaching their decision because of the rigour involved in conducting hearings and the impartiality involved.

  • Furthermore where a full/impartial consideration of all issues is made, public confidence in the DM process and the correctness of decisions is likely to be enhanced

  • Since decisions affect the rights/interests of individuals it is appropriate that a modified version of the court process applies to functions of government

  • Also the idea of providing a person with the opportunity to be heard before a decision affecting them reflects basic notions of fairness

• But these objectives have to be balanced against the practical demands of administrative decision-making – proceeding otherwise would bring the doctrine of natural justice into disrepute (McInnes v Onslow-Fane) and hence the administrative process shouldn’t be ‘over-judicialized’ (Brennan J in Kiao)

When natural justice applies

• The process of implication in guiding whether the rules applies depends on three main points:

  • The implication question: is there an implied duty to accord natural justice

  • The exclusion question – has the legislature evinced an intention to exclude the obligation to observe one or more requirements of natural justice

  • The content question – what kind of hearing is required to be given

• Two other situations exist where a duty to accord natural justice is approached differently

  • Where legislation expressly imposes an obligation to accord with natural justice (Ombudsman Act s 19T – ‘The Postal Industry Ombudsman must comply with the rules of procedural fairness when exercising powers...’)

  • A strong presumption exists that it applies to the exercise of judicial powers by courts and similarly to bodies created with the ‘trappings’ of a court (e.g. there is no doubt that it applies to AAT)

The Hearing Rule – General Tests

• Generally legislation is silent on whether natural justice applies and even where a hearing procedure is spelt out courts may conclude that natural justice requires additional steps be taken thus they ‘supply the omission of the legislature (Byles J in Cooper)

• Whether it applies or not is explained by four different theories:

Common law implication

• The common law supplies the omission of the legislature – hence any power affecting rights triggers the common laws intervention and natural justice is implied unless a legislative intention to exclude it exists (Cooper) and such intention must appear ‘from express words of plain intendment’

• This approached applied easy in earlier times when government activities was smaller in scale – but now government action affects people in a variety of ways and it is harder to pinpoint existing rights or interests being taken away (eg. Eligibility for social security benefits – doesn’t affect rights of a traditional kind)

  • Hence this approach has given way to other approaches to implying natural justice

Legislative implication

• The...

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