The common law

15.1       The common law recognises a duty to accord a person procedural fairness—a term often used interchangeably with natural justice—when a decision is made that affects a person’s rights, interests or legitimate expectations.^[1] Courts may construe a statutory provision as implying that a power be exercised with regard to procedural fairness where a party’s interests might be adversely affected by the exercise of that power.^[2]

15.2       This chapter considers the duty to afford procedural fairness in administrative decision-making.^[3] This chapter discusses the source and rationale for procedural fairness; how it is protected from statutory encroachment; and when laws that deny procedural fairness may be justified.

15.3       In Plaintiff M61/2010 v Commonwealth, the full bench of the High Court explained the scope of the common law duty to afford procedural fairness to persons affected by the exercise of public power:

It was said in Annetts v McCann, that it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power. In Kioa v West, different views were expressed about whether the requirements of procedural fairness arise from the common law or instead depend upon drawing an implication from the legislation which confers authority to decide. It is unnecessary to consider whether identifying the root of the obligation remains an open question or whether the competing views would lead to any different result. It is well established, as held in Annetts, that the principles of procedural fairness may be excluded only by ‘plain words of necessary intendment’.^[4]

15.4       In Kioa v West, 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.^[5]

15.5       Further, in S10/2011 v Minister for Immigration, the High Court held that the principle and presumptions of statutory construction reflect the interactions of the three branches of government, and while not constitutionally entrenched, are part of the common law of Australia:

[O]ne may state that the ‘common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power. If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from state proceeds upon a false dichotomy and is unproductive.^[6]

15.6       Procedural fairness relates to the manner in which a decision is made, rather than the reasoning behind the decision. Issues of procedural fairness arise in the context of administrative decision-making, that is, decisions made by government departments and officials and tribunals.^[7] Such decisions may affect people in a range of contexts, including where:

• decisions may curtail a person’s liberty;

• affect their freedom of movement;

• damage their reputation; or

• have a significant effect on their economic well-being.

15.7       The Law Council of Australia explained that procedural fairness will

promote better decision-making in government because the decision-maker will have before him or her all the relevant information required. The procedural rigour required in a hearing and the injunction to behave impartially is likely to make a decision-maker more conscientious and objective in reaching his or her conclusions.^[8]

15.8       One of the key features of procedural fairness is that ‘in origin it is a common law doctrine or obligation … the requirements of natural justice are fashioned by courts, and are read into or attached to statutory powers so as to ensure procedural fairness in the administration of statutes’.^[9] 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).^[10] This Act does not impose a duty to afford procedural fairness.

Doctrine

15.9       Procedural fairness usually involves two requirements: the fair hearing rule and the rule against bias.^[11]

15.10   The hearing rule requires a decision-maker to inform a person of the case against them, provide them with an opportunity to be heard, and prior notice of a decision that adversely affects their interests. In Commissioner of Police v Tanos, Dixon CJ and Webb J stated that

it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by a judicial or quasi-judicial proceeding he must be afforded an adequate opportunity to be heard.^[12]

15.11   The content of the hearing rule in relation to procedural fairness varies across the spectrum of administrative decision-making, depending on the circumstances of a particular case.^[13]

15.12   Taking into account this caveat, the minimum required for a fair hearing in administrative law involves the following;

• notice that a decision adversely affecting a person’s interests will be made;

• disclosure of evidence relied on when determining the adverse decision;^[14]

• a substantive hearing—oral or written—with a reasonable opportunity to present a case in response to an adverse decision;^[15] and

• in some circumstances, access to legal representation.^[16]

15.13   On the last point, any right to access legal representation will depend on whether an oral or written hearing is provided. At common law, a person is entitled to be represented by an agent, or lawyer, in an oral hearing before a statutory body.^[17] Whether legal representation must be provided to a person whose rights, interests or legitimate expectations are adversely affected in administrative decision-making will depend on the empowering Act of the appropriate statutory body. In some cases legal representation may not be required and may even be contrary to the informal or inquisitorial setting of a tribunal.

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

15.15   When a court considers whether a decision-maker had a duty to afford procedural fairness, it will, generally speaking, consider the following questions.

15.16   First, the implication question: is there an implied duty to accord procedural fairness? In the absence of a clear legislative intention to exclude procedural fairness, courts may imply procedural fairness to ensure that ‘the justice of the common law will supply the omission of the legislature’.^[18]

15.17   In Kioa v West, Deane J explained that where an individual has been denied procedural fairness, they can

demand the observance of the ordinary restraints which control the exercise of administrative power including, unless they be excluded by reason of statutory provision, or the special nature of the case, the standards of procedural fairness which are recognised as fundamental by the common law.^[19]

15.18   The exclusion question is also considered at this stage: has the legislature shown an intention to exclude the obligation to observe the requirements of procedural fairness? Procedural fairness cannot be implied where a law expressly excludes it.^[20] Related to this question is the principle of duality in decision-making. That is, where a decision-making process involves different steps or stages before a final decision is made, the requirements of procedural fairness are satisfied if the decision-making process, viewed in its entirety, entails procedural fairness.^[21] Displacement of procedural fairness may occur where provision has been made for a certain type of hearing or procedure to take place, for example, where legislation provides for a hearing at one stage of a decision-making process but not at another. ^[22]

15.19   Second, the content question: what kind of hearing is the decision-maker required to provide to the applicant?^[23]The content rule will vary depending on the circumstances of a particular case and the statutory context in which it arises.^[24]

History

15.20   The rule against bias and the hearing rule in their contemporary form are drawn from natural law. Natural law developed through the work of the medieval philosopher and theologian, Thomas Aquinas.^[25] French CJ 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.^[26]

15.21   Procedural fairness may not necessarily be implied in relation to decisions made under delegated legislation, or when the decision was one characterised by general policy decision-making.

15.22   Procedural fairness developed through the common law in the early 17^th century.^[27] Historically, procedural fairness only applied to decisions by courts or bodies that had a duty to act judicially. The scope of procedural fairness was extended in the mid-19th century to all ‘quasi-judicial’ decisions in Cooper v Board of Works for the Wandsworth District.^[28]

15.23   In Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (Lam), 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.^[29]

15.24   Over the course of the 20^th century, the concept of procedural fairness developed significantly, eventually applying to a diverse range of government decisions affecting property, employment, reputation, immigration and financial and commercial interests.^[30] In Annetts v McCann, a case involving the right of two parents to make submissions at a coronial inquiry into the deaths of their two sons, Mason CJ, Deane and McHugh JJ explained the recent evolution of the concept of procedural fairness. The judges noted that

many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine’s protection.^[31]

15.25   Stakeholders to this Inquiry highlighted the importance of procedural fairness in promoting accountability and transparency in government decision-making processes.^[32] For instance, the UNSW Law Society submitted that

The broad purpose of administrative law is to safeguard the rights and interests of people in their dealings with the government and its agencies. It confers a right to challenge a government decision by which a person feels aggrieved through independent adjudication to contribute to a greater measure of justice in administrative decision-making. This ensures that the Executive does not act arbitrarily, while promoting the observance of public law values of accountability, legality and transparency.^[33]

Rationale

15.26   In extra-curial commentary, Chief Justice Robert French AC has said that procedural fairness is ‘indispensable to justice’, and 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.^[34]

15.27   There are several principles which are said to guide administrative decision-making including rationality in decision-making, reasonableness^[35] and practical justice. In relation to the last of these principles, Gleeson CJ in Lam emphasised that ‘fairness is not an abstract concept’ and that the ‘concern of the law is to avoid practical injustice’.^[36]

15.28   The ALRC has taken these, and other, common law principles into account when identifying Commonwealth laws that may deny procedural fairness.