Administrative Law in Australia -- Notes on Natural Justice

NATURAL JUSTICE

Natural justice concerns human rights e.g. a right to procedure

Denial of natural justice is a ground of review against an administrative decision: ADJR Act ss.5(1)(a), 5(1)(h)(3), 6(1)(a) and 6(1)(h)(3) => ss.5(1)(a) is a distinct and independent ground of review

Natural Justice usually applies to courts, and Procedural Fairness is the issue when extended to administrative bodies.

Procedural fairness

1 The three rules: hearing rule, the bias rule and the no evidence rule.

The procedural fairness requirement involves two basic steps:

Is the body required to afford a degree of procedural fairness/Natural Justice?

May be circumstances where there is no requirement of NJ. To which decisions does NJ apply? NJ applies to a decision that has substantial consequences for an individual.

If so, what does this requirement entail in this particular case?

(1) That a DM makes proper inquiries and gives the parties involved a real chance to be heard.

(2) Hearing should be by a disinterested judge- no bias or appearance of bias.

Implication of the duty to observe Procedural Fairness

Where legislation doesn't require observance of procedural fairness it is implied Cooper v Wandsworth Board of Works

In the absence of a contrary statutory intention, there is a presumption that procedural fairness applies: Kiao v Minister for Immigration & Ethnic Affairs

Cooper v Wandsworth Board- Cooper built a house without permission. Board demolished house without giving C a chance to explain or remedy. Considerations of court:

(1) Seriousness of the consequences to Cooper

(2) Board h...

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...ected by bias.

McHugh may be apprehension of bias if there is close relationship of DM with person affected by outcome.

Kirby said that if administrators do have an interest where making a decision - they should be excluded - otherwise there is an argument about whether they were central or peripheral to the decision which makes it `malleable and uncertain'.

Exception and Limitation to the Bias Rule

Waiver: objection on ground of bias must be taken as soon as person affected becomes aware of issue. If not, conduct will constitute waiver (Vakauta)

Can prejudgement be cured?

Johnson majority said effect of statement that may indicate prejudgement can be removed by later statement which withdraws or qualifies it but some cases may involve ineradicable apprehension of prejudgement. It all depends on the circumstances