#7237 - Natural Justice I - Administrative Law

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

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)

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)

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)

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:

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

The complex statutory framework for government decision-making has led to courts adapting their ‘supplying the omission of the legislature’.

One approach has been draw from the CLAW heritage – the legislature intends that natural justice applies unless expressly excluded.

• This has doctrinal difficulties – doesn't apply to exercise of the prerogative and it isn’t easy to decide whether statutory powers carried the legislative implication that natural justice applied nor the content of those rights

  • Brennan J claims that one answer is that natural justice can apply but be reduced to nothingness

The position is that implied legislative intent still plays a role in deciding whether natural justice applies – but there is little support for it being self-sufficient

This is the idea that natural justice should apply to all government decision making unless expressly excluded – it avoids the threshold difficulty of deciding which theory to apply and how to apply it in a complex statutory setting

It suggests that unless there is a legislative statement to the contrary a hearing must be hearing – the question is then what kind of hearing is required (considered on the basis of the nature of the rights affect, the detail of the statutory framework etc.)

This approach was initially given support in Kioa by Mason J – ‘the law has now developed to a point where it may be accepted that there is a common law duty to act fairly in the sense of according procedural fairness in the making of administrative decisions which affect the rights, interests and legitimate expectations, subject only to a clear manifestation of a contrary intention’

Despite its simplicity it has difficulties; namely:

• Exceptions emerge - It clearly doesn't apply to decisions made by Cabinet, some exercises of the prerogative and some types of ‘policy’ and planning decisions affecting the community generally

  • If theories are needed to explain exceptions, theories are need to explain why it applies in the first place

• The broader the range of decisions to which it applies – the harder it is to define what it means; all government decisions affect people individually (e.g. assessment of tax returns) and don’t adhere to natural justice process and hence using natural justice to describe the process would transform the original doctrine

In summary, there is a large core of decisions to which natural justice is attracted but beyond that core it can be necessary to consider whether and how natural justice applies

The first issue in adopting this approach is whether the decision is of a kind that will individually affect a right interest or legitimate expectation of a person. If so a presumption that natural justice applies arises and the focus is on whether it is rebutted (e.g. express statutory exclusion, alternative appeal rights, the character of the DM etc.)

This approach was explained by Gibbs J in Salemi v Mackellar in laying out three matters to be considered when deciding whether or not natural justice applies:

• The nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice

• In what circumstances is the person claiming to be entitled to exercise the measure of control entitled to intervene

• When a right to intervene is proved, what sanctions in fact is the latter entitled to impose on the other

In FAI Mason J outlined the factors to be considered including the ‘nature of the original decision (preliminary/final), the formalities required for the original...