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Natural Justice
10.1.1 Breach of natural justice (NJ) or procedural fairness can lead to the invalidity of executive action
10.1.3 NJ stipulates standards and procedures to be observed in administrative DM; traditional elements include:
 Prior hearing rule – ‘hear the other side’; DM must give a person prior notice that a decision may be made,
the information on which the decision may be based and their right to make a submission in reply
 Bias rule – ‘no one can be judge in their own cause’; DM must be free of bias or preconceptions arising from
the DM’s financial/personal interests, prior expression, of views or previous role in the decision to be made
10.1.4 Common suggestions not endorsed by HC, found other headings apart from NJ:
 Probative evidence rule – to make findings based on evidence, that is neither arbitrary nor irrational
 Duty of inquiry – where the DM has a comparative advantage to find out new information to clarify gaps or
discrepancies, or the applicant has a disadvantage or disability (language, youth, inexperience)
Statute & Constitution
 Breach of NJ by a Cth official warrants the grant of a constitutional remedy under Const s 75(v)
 ADJR s 5(1)(a) a breach of the rules of natural justice occurred in connection with the making of the decision
Definition
 10.1.7C To ‘act judicially’, within in the requirements of ‘natural justice’, with ‘procedural fairness’ means to
act with fairness and detachment; in the ‘absence of actuality or the appearance of disqualifying bias and
according of an appropriate opportunity of being hear’ (s157/2002)
 10.1.9 The CL rules of NJ are taken to apply to the exercise of public power unless clearly excluded (Miah)
 The obligation can apply both decisions made under statute & in the exercise of prerogative power (Jarratt)
Rational for the doctrine
 10.1.10 NJ ensures that relevant information is considered, promotes impartiality and public confidence, and
provides an opportunity to be heard
 10.1.11 NJ objectives must be balanced against the practical demands of administrative decision making
 Fairness is not an abstract, but a practical concept; the concern of the law is to avoid practical injustice (Lam)
 What is required by procedural fairness is a fair hearing, not a fair outcome (SZBEL)
When NJ applies
10.1.12 NJ applies where:
 There is an implied duty to accord NJ
 Legislation expressly imposes an obligation to accord natural justice
 Legislature has evinced an intention to exclude the obligation to observe NJ
o Content, kind of
 hearing requires natural justice
 There is a strong presumption that NJ applies to the exercise of judicial power by a court & court-like bodies
such as tribunals which are required to ‘conduct a proceeding, review a decision, and hear the parties’
The Hearing Rule - Factors
10.2.2 NJ may require additional steps to supply the omission of the legislature (Cooper)
 10.2.2 Common law implication: CL supplies the omission of legislature; NJ is thus implied by CL unless there
is an express legislative intention to exclude it (Cooper) - “express words of plain intendment” (Tanos)
 10.2.4 Legislative implication : One view - no free-standing right to be accorded NJ which exists
independently of statute, thus cannot apply to exercise of prerogative power (Kioa)
 10.2.7 Universal implication - NJ applies to all governmental DM unless expressly excluded
o 10.2.8 There is a CL duty to act fairly, according to procedural fairness, in the making of
administrative decisions which affect rights, interests and legitimate expectations, subject only to
the clear manifestation of a contrary intention (Kioa)
o 10.2.9 Exceptions include decisions made by Cabinet, some exercises of prerogative power,
decisions of subordinate legislative character, ad some policy and planning decisions which affect
the community generally (O’Shea)
o No general obligation to provide an advance warning, sources of information – but a mere
subsequent right to reasons and seek a review – transformation of traditional doctrine
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Admin decisions are not held to invalid because the procedures of adversary litigation are not fully observed (Kioa)
Statutory Framework
 A statutory appeal procedure may displace an obligation to accord NJ; or exclude NJ from only the primary
decision; or provide an exclusive remedy for redressing a breach of natural justice
 10.3.34C The existence of a statutory procedure for making a decision does not necessarily evince an
intention to exclude additional procedural requirements deriving from natural justice (Miah)
Factors and Circumstances (Miah)
o Nature of original decision – NJ require are less likely to attach to preliminary decisions then finals ones
o Public/private – NJ applies to decisions that are made in private
o Formalities required – formal procedures such as a requirement to give reasons at the first level of
decision making support an inference that the appeal is not the sole source of procedural fairness
o Urgency
o Nature of appellate body – if the appellate body is a court, right to appeal may exclude the rules of NJ at
the earlier level compared to an internal review body which is less likely to be independent
o Breadth of appeal – right to de novo review supports that NJ requirements were intended to be
excluded or modified
o Nature of interest and subject matter – consequences for the individual and the subj of the legislation
o 10.2.10 Effect or impact of decision – requires a direct and immediate effect on
commercial/personal/financial interests (Peko)
Nature of power being exercised & Character of DM
 Does not apply in a prerogative decision re international relations (Peko);
general discretionary power to set the price of bread (Bread Manufacturers);
private law function of government (Snapper Island)
 Where statute confers and unfettered discretion, NJ has no application (FAI)
 Does not apply to Cabinet (Peko)
 Governor in Council is generally immune from JR and the Government is bound
to act only upon the advice of a Minister or the Cabinet (FAI)
o However, the Governor’s discretion is not absolute & procedures could
be devised for the making of any relevant inquiry and recommendation
o This offers some protection to the citizen against legislative practise of
conferring statutory discretions on a Governor to avoid JR
Existing rights and Interests
 10.2.14C When an order is to be 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 (Kioa)
 A person should be given an opportunity to deal with only adverse info that is
credible, relevant and significant to decision to be made (Kioa)
 10.3.1 NJ applies to decisions affecting people in the individual capacity, but
not affecting people indirectly as members of a community; policy or political
decisions are not subject to judicial review (Kioa)
 NJ applies to the cancellation or refusal to renew an existing entitlement, but
not to an application or denial of a hope or advantage (FAI)
 10.3.2 ‘Right or interest’ may refer to a personal liberty, status, preservation of
livelihood and reputation, or proprietary rights and interests (Kioa)
Legitimate expectation
 10.3.7 Prospective, as well as existing, rights, interests and privileges and
benefits are now within the domain of natural justice (Haoucher)
 Doubt of independent role of legitimate expectation at ‘implication stage’ -
10.2.15C Case: FAI
Facts: FAI was denied renewal of its
licence to provide workers comp
insurance, and was not given an
opportunity to present a case to the
minister, being the appropriate body
to advise the Governor in Council. A
license could be granted or renewed
if the Governor in Council thinks fit.
Case: Kioa
Facts: Departmental paper
recommended that Kioa be deported
and commented on matters which
Kioa did not have an opportunity to
reply to
10.3.3C Annetts
Modern trend towards widening
what is a ‘right or interest’ to a
individual person
10.3.11C Case: Haoucher
Facts: An AAT recommendation
against an order to deport rejected
by the minister in exceptional
circumstances. The minister rejected
an AAT recommendation against the
not as strong as right/interest (NAFF & Lam)
Examples of Legitimate Expectation
 An expectation arising from a gov promise to a specific person (Cole)
 Expectation generally to the public in a statement of government policy eg a
convention ratified by Australia but not incorporated into our law can give rise
to a legitimate expectation (Teoh)
 An expectation that an existing licence will be renewed (FAI)
 An expectation that an established liberty or interest will not be taken away
(Heatley) or a beneficial recommendation will not be overturned (Haoucher)
 An expectation arising from an established course of practise (Quin)
 An expectation that an opportunity will be given to demonstrate compliance
with a statutory criteria for benefit or concession (Re HK)
Actual subjective expectation:
 Legitimate expectation requires a subjective expectation, which a lost
opportunity to put forward information or argument to the decision maker can
be shown (Lam)
 An actual expectation requires the party to turn his or her mind consciously to
the matter and reasonably expect that certain procedures would be followed
Limitations:
 10.3.8 A legitimate expectation should be distinguished from mere hope
(Haoucher), and must be legitimate, reasonable or well founded
 A legitimate expectation gives only a right to procedural fairness and not to
substantive enforcement of the content of the expectation - requiring the DM
to exercise his or her discretion in a particular way (Quin)
 Where a TM expresses concern over consistency over evidence and claims that
he or she will seek further information to clarify, but fails to do so without
good reason before making a decision, the members has failed to accord
procedural fairness; unnecessary to consider how material evidence was to the
decision (NAFF)
Circumstances that do not give rise to legitimate expectations:
 Recommendations of an ombudsman (Metera)
 Appointment of a person to conduct an investigation (Ryan)
 Statutory DM process not directed towards individuals or distinct bodies
(Geelong)
 Effect on a child of the deportation of an estranged parent where it is not
stipulated that the best interests of a child are a primary consideration (Lam)
 A practice or assurance has been negated or terminated by the executive (Save
the Showground)
Express statutory exclusion
 An intention to exclude the right to accord NJ must be express and is not to be
assumed or spelled out from indirect references, uncertain inferences or
equivocal considerations (Haoucher)
 A court will not ordinarily regard a statutory discretion the exercise of which
will affect the rights of a citizen as absolute or unfettered, unless there is a
plain expression of intent by Parliament (FAI)
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deportation of Haoucher without
consulting Haoucher on the
difference in findings from the AAT
10.3.13C Case: Teoh
Facts: Department failed to invite
Teoh to make a submission on
whether a deportation order should
be made, contrary to an
international treaty providing that a
child’s best interests must be a
primary consideration to
administrative decisions
10.3.12C Case: Quin
Facts: HC rejected Quin’s application
for a declaration that he and other
magistrates be appointed to a
newly-constituted court unless they
were found to be unfit for judicial
office
10.3.14C Case: Lam
Facts: Department wrote to Lam
who was in prison seeking details of
the carer of his children to assess his
relationship with his children. They
did not follow through before
making the decision to deport him
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Hearing Rule - Content
Classical principles:
 10.4.3 A reasonable opportunity of presenting his or her case (Russell)
 DM must act in good faith and fairly listen to both sides, no power to administer an oath or need to examine
witness; but can obtain information to give the parties a fair opportunity to correct or contradict prejudicial
statements (Rice)
 Special procedural steps may be prescribed by statute to extend or restrict what the principles of NJ
ordinarily require (Kioa)
Generic factors (Kioa):
 10.4.4 The statutory framework
 The circumstances concerning the individual decision to be made
 The subject matter of the decision
 The nature of the inquiry
 The rules of the tribunal
 10.4.5 Nature of the DM (court or administrator) – emphasis tribunal (Miah)
Prior notice
 10.4.8 Notice generally in writing (Andrews v Mitchell):
 Must contain the details of the date, place of decision/ hearing (Cooper)
 Must give sufficient time to put up a case (Polemis); to consider all the
allegations and obtain material to rebut them (Ansell v Wells)
Disclosure of Information
 10.4.12C Where there is no problem of confidentiality, an opportunity should
be given to deal with adverse information that is credible, relevant and
significant (VEAL)
 This refers to information that cannot be dismissed from further consideration
BEFORE making the decision; not information which is LATER chosen to express
the reasons for which the decision is reached (VEAL)
 In a case concerning confidential information, the Tribunal is not bound to give
the appellant a copy of the letter, or tell him who sent it; but is required to tell
him the substance of the allegations and ask him to respond to them (VEAL)
 The information that may create a risk of prejudice, albeit subconscious should
be disclosed (VEAL)
 10.4.11 Focus on need to disclose specific and prejudicial information (Kioa)
 10.4.10 A higher level of detail is required where a person’s livelihood or
liberty is at stake – extending to legislation & evidence supporting charge; but
not specific elements of the decision or the actual documents (Ansell v Wells)
Case VEAL
Facts: Protection visa was rejected,
but the tribunal had failed to notify
the contents of a confidential letter
to the applicant. Although the
tribunal gave the letter ‘no weight’
in the final decision, this was a
breach of NJ.
Opportunity to comment
 10.4.9 The individual knows the case made against him (Kanda)
 Gives the individual a right to rebut or qualify by further info & comment by
way of submission upon adverse material from sources b4 the DM (Alphaone)
Possibility of a successful outcome
 10.4.6 All that the appellant needed to show was that the denial of natural justice deprived him of the
possibility of a successful outcome, not necessary to show that the breach was material (Aala)
 The appellants are not required to demonstrate that the Tribunal would have made a more favourable
assessment if made reasonably promptly, as long as there was a real and substantial risk that the Tribunal’s
capacity to assess was impaired by the delay (NAIS)
 Relief may be refused only if the court concludes that the applicant could not possibly have obtained a
different outcome: (Ucar)
1. Separate legal basis for decision for which there was no procedural unfairness
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2. All the evidence pointed to an irrefutable conclusion, no further steps could b taken
Who should conduct the hearing
 10.4.18 NJ does not require the hearing to be conducted by a DM with administrative function
 It is sufficient that the DM acts on the recommendation of a specialist committee board, as long as he is
apprised of all the relevant material in order to evaluate the recommendation and to understand the force
of the representations
 10.4.19 Main requirements:
o DM is fully informed of the evidence and submissions arising from the hearing (Arlidge)
o The aggrieved is given an opportunity to comment on any significant new information comes to light
after the hearing is conducted (O’Shea)
o An adverse allegation is to be disclosed to the aggrieved and an opportunity to comment is given (Kioa)
Conduct of the hearing: oral hearing or written submissions
o 10.4.21 It is usually adequate to provide written submissions where case involves only ‘simple factual
matters’; oral hearings are required only if there are matters of credit, veracity or reputation, inconsistencies
in evidence or where expert evidence/witnesses are involved (White)
Oral hearings: legal representation
o 10.4.22 There is no absolute right of NJ to representation, it depends on the seriousness of the matter & the
complexity of issues (Cains v Jenkins), CL right can be excluded by statute
o 10.4.23 Factors include ability to understand nature of proceedings and issues, person ability to
communicate, legal and factual complexity of the case, importance of decision to the person’s welfare and
liberty (WABZ)
ADT Act (NSW) s 71(1) provides that a party may appear before the Tribunal:
(a)
(b)
(c)
(d)
Without representation
Represented by a legal practitioner
Represented by an agent who is not a legal practitioner with the leave of the Tribunal under (2)
With a person appointed by the Tribunal under (4), where the party is an incapacitated person (intellectually or physically disabled, minor/aged, or
other (5))
(6) Entitled to use the services of an interpreter
Cross-examination
o 10.4.24 Usually not required, unless the proceedings are analogous to court proceedings (Hurt v Rossall)
Delay
 There is an implied duty to conduct a review and arrive at a decision within a reasonable time, to give
proper, genuine and realistic consideration to the evidence (NAIS)
 Where is a breach of the principles of NJ by delay where the delay has denied a party a proper opportunity
to present his or her case
Duty to enquire
 Although the DM process is an inquisitorial one rather than adversarial one, the obligations under NJ extend
to the rational analysis of what has been put before the CM rather than the exercise of information
gathering powers (SZEGT)
The Tribunal is not required to give the appellant commentary on his prospects of success, warn him of
every reason why his evidence would be insufficient, invite him improve the material he put forward, or
acquire information to bolster the appellant’s case
Case: SZEGT
Application failed because Tribunal was not satisfied on the basis of material provided that the appellants detentions arose from political activity; appellant
argued the Tribunal should have made enquires
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The Rule Against Bias
10.5.1 Rule against bias – no person shall be a judge in their own cause; DM must be and be seen to be impartial
 Rule applies universally to all admin DM, although theoretically possible for parliament to exclude the rule
 10.5.2 Justice should not only be done, but should manifestly and undoubtedly be seen to be done
(McCarthy)
 DM must be disinterested in the matter, and the absence of perceived bias to maintain public confidence
 Public perception or outward appearance that suggests a lack of impartiality form part of the test for
apprehended bias
 10.5.3 The principle is applied rigorously to judicial officers and tribunal members, but to a lesser extent to
ministers – as the rule is not expected to inhibit a minister from applying government policy
10.5.4 Consequences of finding bias:
 DM not allowed to participate
 Decision is invalid
10.5.5 DM should be slow to accept a call for disqualification because of allegation of bias, to do so is an abdication
of duty and encourages ‘judge shopping’ (Kirby v Centro Properties)
10.5.6 Two categories: actual bias and apprehended bias
 10.5.7 Actual bias - a DM’s mind is so closed to persuasion that argument against that view is ineffectual (Jia)
o Difficult to prove when decision is made in conjunction with others, or processes are confidential
 10.5.8 Apprehension of bias - ‘a fair minded lay observer might reasonably apprehend that the judge might
not bring an impartial mind’ to the decision before him (Ebner) – double might test
10.5.9 Four distinct and overlapping main cases (Webb):
1. Disqualification by interest – direct/indirect, pecuniary or otherwise
2. Disqualification by conduct – published statements, conduct in the course of or outside the proceedings
3. Disqualification by association – direct/indirect relationship, experience or contact with a person/s
interested in or involved in the proceedings
4. Disqualification by extraneous information
10.5.10 Examples of circumstances
 Communication privately with one party (Re JRL)
 DM is both fact-finder, prosecutor and judge (Qurban)
 DM appears to have views which suggest they may prejudge the outcome (Koppen)
 DM exhibits towards a party or a witness strong animosity/hostility or partiality/favouritism
 Close family, personal or professional relationship with a party eg client lawyer (Gordon)
 DM has financial interest in one of the parties (Kirby v Centro Properties)
Test for Prejudgement (Apprehended Bias)
10.5.14 Prejudgement = a reasonable apprehension that the Dm would bring an
impartial and unprejudiced mind to the issues (Ebner)
Objective double might test
 10.5.22C Whether ‘a fair minded lay observer might reasonably apprehend
that the judge might not bring an impartial mind’ to the decision before him;
justice should be both done and be seen to be done (Ebner)
 10.5.23C The question is not whether a DM’s mind is blank; it is whether it is
open to persuasion (Jia)
 Prejudgment is a state of mind committed to a conclusion already formed,
incapable of alternation, whatever evidence or argument presented (Jia)
Case: Ebner / Clenae
Facts: Trial judge in Ebner had
disclosed during the trial that he was
a beneficiary under a family trust
that held 8000 shares in a bank that
was a creditor in bankruptcy
proceedings
Trial Judge in Clenae inherited 2400
shares in a bank that brought action
against a borrower, during the trail
but before the judgement was
delivered (did not disclose this)
Case: Jia
Facts: Minister decided that Jia and
White were not permitted to remain



Preconceived opinions, do not constitute bias, not even expression of such
opinions, for it does not follow that the evidence will be disregarded (Jia)
Comments must be considered in context (Johnson v Johnson)
An expression of views should be capable of being seen as tentative (Vakauta)
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in Australia due to criminal
convictions. AAT reversed a previous
decision of the minister, Minister
had commented adversely in a radio
interview on the tribunal’s lenient
treatment of criminal deportees.
Real possibility
 The question is one of possibility (real and not remote), not probability; no
need to inquire into the actual thought processes of the DM (Ebner)
 Requires a ‘real likelihood’ that a reasonable observer will find that (Jia):
1. The DM has an opinion
2. Will apply that opinion to the matter in issue
3. And will do so without giving the matter fresh consideration in light of the
facts and arguments of a case
Fair minded observer
 10.5.14 A ‘fair-minded and informed’ person has knowledge of the particular
facts, not just broad general knowledge (Webb)
 10.5.16 There must be a reasonable fear that the DM’s mind is prejudiced in
favour of a conclusion already formed that the conclusion will not be altered
despite evidence or arguments (Laws)
 A DM who is likely to make a decision in the same way as he/she has done in
the past does not indicate bias; more than statistical probability is required
(Gallagher)
 The ‘ficticious bystander’: (Johnson v Johnson)
 Need not have specialised knowledge; must know common place things
 Aware of strong professional pressures on adjudicators to act impartially
 Would not reach a hasty conclusion based on remarks taken out of context
 Is neither complacent nor unduly sensitive or suspicious
Pecuniary Interests/Shares Disclosure
 No separate and free-standing rule of automatic disqualification which applies
where a judge has a direct pecuniary interest, however smaller, in the outcome
of the case - can be direct/indirect; depends on size/circumstances (Ebner)
 Failure to disclose acquisition of shares is a matter of prudence and
professional practise, not a legal requirement and does not automatically
disqualify the judge or make the ultimate decision invalid
Vicarious Liability/ Relationships
 10.5.25C Procedural unfairness can occur without any personal fault on the
part of the DM; but the officers affected by bias must play a role which had
significant impact on the decision (Creasy)
 The relationship between the DM & person affected must be so close or
personal, or the person affected must be so influential or dominant as to make
the decision impartial
 The relationship is assessed by the nature of the association, the frequency of
contact, and the nature of the interest of the person associated
Exceptions: Defences to bias
Necessity or consent
 10.5.18 Necessity or consent arises in domestic bodies, associations, boards or
tribunals with limited membership
 Within tolerable limits, where there is no real possibility of bias present, or bias
can b avoided (Rauber)
Case: Johnson v Johnson
Facts: Judge stated that he would ‘be
looking, insofar as it is possible, to
independent evidence’ and relying
principally on witnesses other than
the parties in this matter – due to
the ‘wide divergence’ between the
evidence of both parties relating to
the matters in issue
Case Hold Holdings v
Creasy
Facts: Minister granted exploration
licence relying on departmental
advice – from officers of which two
had pecuniary interest in the
outcome
The Minister was personally
impartial and had no knowledge of
the interests of departmental
officers, the question he was
vicariously partial in making the
decision
Case: Vakauta v Kelly
Facts: Trial judge made biased
comments during trial, failure to
complain constituted a waiver
Held: Requirement of NJ will not be
infringed merely because a judge

10.5.19 Necessity for bias:
o Statutory tribunal – tribunal cannot be disabled from performing its
statutory functions (Laws)
o Bias in the same judge hearing a case on remittal is allowed in small
jurisdictions (Sanders v Snell)
o To avoid requiring another judge to rehear the case and place an
unnecessary burden for the parties (Ebner)
Waiver
 10.5.20 DM may declare at commencement any interest which might lead to a
perception of bias; failure to object ‘at the earliest opportunity’ may amount to
waiver (Smits v Roach)
o Waiver can occur where no party objects to a potentially biased
remark by a DM
o Serious bias are unlikely to be waived
 10.5.21 A preliminary biased comment may be ‘cured’ or altered by a later
statement (Johnson v Johnson)
 10.5.24C Failure to object waives the right; but litigant cannot prematurely call
upon judge to withdraw from the case (Vakauta v Kelly)
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carries a knowledge of some
medically witnesses who are
regularly called to give evidence