Administrative Law In Australia Notes On Natural Justice

7990 words - 32 pages


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 had the characteristics of a judicial tribunal (court-like features and discretion)

(1) and (2) allow a presumption the Board was under a duty to grant hearings before acting to affect proprietary interests

Statute should be construed to not interfere with fundamental rights without hearing
If the DM body was judicial or quasi-judicial, it was required to accord procedural fairness.
Ridge v Baldwin (1964) (H of L)
Natural justice is attracted where fundamental rights (property rights etc) and interests were interfered with
This case established a broad entitlement to natural justice.

FAI Insurances v Winneke (1981) HCA

Facts: Was there legislative intention to reserve the decision to the political realm and exclude the right to procedural fairness

Wilson J

NJ does not only apply to judicial, quasi-judicial or duty to act judicially. Demise of the duty to act judicially requirement. There is now a broader right.

Where power exercised is statutory, do not need requirement in the stature that the party affected has a right to be heard.
Cooper -no requirements that party be heard, common law will supply natural justice such that party can be heard
NOT limited to cases where rights are affected, but extended to where interests or privileges are affected.

The considerations...

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