Week 7 Lecture Notes
Comprehensive notes on procedural fairness in administrative law, covering key cases, statutory references, the implication principle, hearing rights, and the rule against bias. Focuses on fair decision-making processes affecting rights or interests.
Daniel Miller
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L e c t u r e N o t e s
Introduction to Procedural Fairness
» Procedure fairness is the most i m p o r t a n t of the g r o u n d s of review.
Reasons for l o o k i n g at procedural fairness
before the other grounds of review.
• The question of whether or not procedural
fairness is required is closely related to the
questions of access to judicial review and
standing.
• It is the single most frequent ground on which
courts invalidate administrative actions.
• The c o n c e p t of PF d e v e l o p e d from the rule that only certain d e c i s i o n - m a k i n g b o d i e s
('qUasi-juidicial' entities) bad a r e q u i r e me nt to p r o v i d e nature I justice'.
• The Atkin f o r m u l a from the .R v EJectricrty Commissioners, ex parte London Efecfncrty
Joint Committee (1924) - held that it was only b o d i e s which had a duty to act j u d i c i a l l y
which c o u l d be required to provide natural justice to individua s.
• The m o d e r n term PF was adopted as the scope of this rule s h i f t e d to nature justice
applying to g o v e r n m e n t decision-makers.
■ Ridge v Baldwin [ 1 9 6 4 ] AC 40 is an i m p o r t a n t case 'which e x p a n d e d the range of r i g h t s
and interests attracting the p r i n c i p l e s of n a t u r a l justice a r d marks the m o d e r n
t r a n s i t i o n f r o m natural justice to p r o c e d u r a l fairness.
Introduction to Procedural Fairness
» Procedure fairness is the most i m p o r t a n t of the g r o u n d s of review.
Reasons for l o o k i n g at procedural fairness
before the other grounds of review.
• The question of whether or not procedural
fairness is required is closely related to the
questions of access to judicial review and
standing.
• It is the single most frequent ground on which
courts invalidate administrative actions.
• The c o n c e p t of PF d e v e l o p e d from the rule that only certain d e c i s i o n - m a k i n g b o d i e s
('qUasi-juidicial' entities) bad a r e q u i r e me nt to p r o v i d e nature I justice'.
• The Atkin f o r m u l a from the .R v EJectricrty Commissioners, ex parte London Efecfncrty
Joint Committee (1924) - held that it was only b o d i e s which had a duty to act j u d i c i a l l y
which c o u l d be required to provide natural justice to individua s.
• The m o d e r n term PF was adopted as the scope of this rule s h i f t e d to nature justice
applying to g o v e r n m e n t decision-makers.
■ Ridge v Baldwin [ 1 9 6 4 ] AC 40 is an i m p o r t a n t case 'which e x p a n d e d the range of r i g h t s
and interests attracting the p r i n c i p l e s of n a t u r a l justice a r d marks the m o d e r n
t r a n s i t i o n f r o m natural justice to p r o c e d u r a l fairness.
Note that natural justice' is still the term used in the judicial review
statutes, rather than 'procedural fairness'.
ADJRA ss5(1Xa). 6(1)(a)
Sect S Applications for review of decisions
(1) A person who is aggrieved by a decision io which this Act
apples that is made after the commencement of this Act may
apply to the Federal Court or the Federal Circuit Court for an
order of review in respect ol the decision on any one or more of
|he following grounds:
(a) that a breach of the rules of natural justice occurred in
connection with the making of the decision;
See also: JRA ss2ty2Xa). 2l(2Xa)
• PF isn’t concerned with the merits of a decision -
just its procedural aspects being carried out
properly.
• It is concerned with the way the decision was
made not whether the outcome is fair.
• This reflects the traditional judicial preoccupation
with the legality of a decision rather than its
substance.
Procedural Fairness in Australia
• The d e v e l o p m e n t of p r o c e d u r a l fairness in Australia was slow and it wasn t Until the
1 98 Os that the co Jrts a cce pre d the sh rft fro m nature I ' Ustice.
* Unless p a r l i a m e n t has made it clear that p r o c e d u r a l fairness will not a p p l y , then there
is a g e n e r a l c o m m o n aw duty to act fairly where administrative d e c i s i o n s affect rights,
interests, or l e g i t i m a t e expectations.
statutes, rather than 'procedural fairness'.
ADJRA ss5(1Xa). 6(1)(a)
Sect S Applications for review of decisions
(1) A person who is aggrieved by a decision io which this Act
apples that is made after the commencement of this Act may
apply to the Federal Court or the Federal Circuit Court for an
order of review in respect ol the decision on any one or more of
|he following grounds:
(a) that a breach of the rules of natural justice occurred in
connection with the making of the decision;
See also: JRA ss2ty2Xa). 2l(2Xa)
• PF isn’t concerned with the merits of a decision -
just its procedural aspects being carried out
properly.
• It is concerned with the way the decision was
made not whether the outcome is fair.
• This reflects the traditional judicial preoccupation
with the legality of a decision rather than its
substance.
Procedural Fairness in Australia
• The d e v e l o p m e n t of p r o c e d u r a l fairness in Australia was slow and it wasn t Until the
1 98 Os that the co Jrts a cce pre d the sh rft fro m nature I ' Ustice.
* Unless p a r l i a m e n t has made it clear that p r o c e d u r a l fairness will not a p p l y , then there
is a g e n e r a l c o m m o n aw duty to act fairly where administrative d e c i s i o n s affect rights,
interests, or l e g i t i m a t e expectations.
In Kioa v West (1985) 159 CLR 550, Mason J held
(at 584):
The law has now developed to a point where it may
be accepted that there is a common law duty to ad
fairly , in the sense of according procedural fairness,
in the making of administrative decisions which
affect rights, interests or legitimate expectations,
subject only to the clear manifestation of a contrary
intention.
In Kioa v West (1985) 159 CLR 550, Mason J held (at
582-3):
It is a fundamental rule of the common law doctrine of
natural justice that, generally speaking, when an order
is to be made which will deprive some person of some
right or interest or legitimate expectation of a benefit,
he (sic) is entitled to know the case sought to be
made against him and to be given an opportunity of
replying to it.
• This is the essence of natural justice/procedural
fairness in relation to the opportunity to have a
hearing, be informed of the case being made against
you, and being able to respond to it.
• Legitimate expectations has been left out of the
formula for the availability of procedural fairness in
subsequent cases so not highlighted here.
(at 584):
The law has now developed to a point where it may
be accepted that there is a common law duty to ad
fairly , in the sense of according procedural fairness,
in the making of administrative decisions which
affect rights, interests or legitimate expectations,
subject only to the clear manifestation of a contrary
intention.
In Kioa v West (1985) 159 CLR 550, Mason J held (at
582-3):
It is a fundamental rule of the common law doctrine of
natural justice that, generally speaking, when an order
is to be made which will deprive some person of some
right or interest or legitimate expectation of a benefit,
he (sic) is entitled to know the case sought to be
made against him and to be given an opportunity of
replying to it.
• This is the essence of natural justice/procedural
fairness in relation to the opportunity to have a
hearing, be informed of the case being made against
you, and being able to respond to it.
• Legitimate expectations has been left out of the
formula for the availability of procedural fairness in
subsequent cases so not highlighted here.
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