A common law duty

14.1     The common law recognises a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations.[1] In Kioa v West (1985), Mason J said:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.[2]

14.2       This chapter discusses the source and rationale of the principles of procedural fairness; how procedural fairness is protected from statutory encroachment; and when laws that encroach on it may be justified. The ALRC calls for submissions on two questions about this duty.

Question 14–1          What general principles or criteria should be applied to help determine whether a law that denies procedural fairness is justified?

Question 14–2          Which Commonwealth laws unjustifiably deny procedural fairness, and why are these laws unjustified?

14.3       Issues of procedural fairness generally arise in the context of decisions made by government departments and officials as well as quasi-judicial bodies such as tribunals.[3] Such decisions may affect people in a range of contexts;

  • decisions may curtail a person’s liberty, for example by detaining them in immigration detention; or
  • affect their freedom of movement such as through deportation or resettlement; or
  • have a significant effect on their economic well-being, for example, by decisions determining their entitlements to government pensions or other support.

14.4       Principles of procedural fairness recognise the power imbalance which may exist between an administrative decision-maker, such as a delegate representing a government agency, and an individual citizen.

14.5       While procedural fairness is protected at common law, statute also provides some protection for individuals. For instance, a breach of the rules of natural justice is a ground for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).[4]

14.6       In extra-curial commentary, Chief Justice Robert French has said that procedural fairness is ‘indispensable to justice’, and has highlighted five inter-related rationales for the duty to afford procedural fairness:

  • That it is instrumental, that is to say, an aid to good decision-making;

  • that it supports the rule of law by promoting public confidence in official decision-making;

  • that it has a rhetorical or libertarian justification as a first principle of justice, a principle of constitutionalism;

  • that it gives due respect to the dignity of individuals; and

  • by way of participatory or republican rationale—it is democracy’s guarantee of the opportunity for all to play their part in the political process.[5]

14.7       Procedural fairness usually involves two requirements: the fair hearing rule and the rule against bias.[6] The hearing rule requires a decision-maker to inform a person of the case against them and provide them with an opportunity to be heard. The extent of the obligation on the decision-maker depends on the relevant statutory framework and on what is fair in all the circumstances. In Commissioner of Police v Tanos (1985), Dixon CJ and Webb J held that

it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by an judicial or quasi-judicial proceeding he must be afforded an adequate opportunity to be heard.[7]

14.8       The bias rule of procedural fairness requires that a decision-maker must not be biased (actual bias) or be seen by an informed observer to be biased in any way (apprehended or ostensible bias).

14.9       The rule against bias and the hearing rule are drawn from natural law and influenced by the work of the medieval philosopher and theologian, Thomas Aquinas.[8] Chief Justice French explained:

As a normative marker for decision-making it [the rule against bias] predates by millennia the common law of England and its voyage to Australian colonies.[9]

14.10   Procedural fairness in its contemporary form, developed in the common law in the early 17th century.[10] Starting as a principle relating only to judicial functions, the application of natural justice was extended in the mid-19th century to all ‘quasi-judicial’ decisions in Cooper v Board of Works for the Wandsworth District (1863).[11]

14.11   In Lam (2003), Callinan J explained that ‘natural justice by giving a right to be heard has long been the law of many civilised societies’:

That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’s Medea, enshrined in the scriptures, mentioned by St Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden.[12]