Natural Justice or Procedural Fairness
Judges and the Academy
1. Natural justice has a long and disparate history. Examples of the usage abound. The expression has theological and philosophical overtones and implications. A good instance is Lord Esher saying in 1885 that natural justice was “the natural sense of what is right and wrong”: Voinet v Barrett (1885) 55 LJQB 39 at 41, or Lord Mansfield explaining liability to repay money had and received on “natural justice and equity” in Moses v Macferlan (1760) 2 Burr 1005 at 1012; 97 ER 676. The expression has been said to be “sadly lacking in precision”: R v Local Government Board  1 KB 160 at 199 per Hamilton LJ. Lord Shaw had harsh things to say about it in Local Government Board v Arlidge  AC 120 at 138:
The words “natural justice” occur in arguments and sometimes in judicial pronouncements in such cases. My Lords, when a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a statute prescribes the means it must employ them. If it is left without express guidance it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading. In so far as the term “natural justice” means that a result or process should be just, it is a harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous.
2. Bringing things down to earth was Ormrod LJ in Norwest Holst Ltd v Secretary of State for Trade  Ch 201 at 226:
… [T]he phrase “the requirements of natural justice” seems to be mesmerising people at the moment. This must, I think, be due to the apposition of the words “natural” and “justice”. It has been pointed out many times that the word “natural” adds nothing except perhaps a hint of nostalgia for the good old days when nasty things did not happen.
3. Procedural fairness is a more specific name for one aspect of natural justice in its broadest sense. The change began in the 1970s. Note that the Administrative Decisions (Judicial Review) Act 1977 (Cth) shows contemporary (1970s) usage in referring to the ground that “a breach of the rules of natural justice occurred in connection with the making of the decision”. (In what follows, I address only the hearing limb of procedural fairness and I do not address the other limb, which is bias or apprehended bias.)
4. The emphasis on a distinction between “natural justice” and “procedural fairness” is, I think, Australian and the distinction began to be developed in Kioa v West (1985) 159 CLR 550 at 583-4 per Mason J
It has been said on many occasions that natural justice and fairness are to be equated: see, e.g., Wiseman v. Borneman; Bushell v. Secretary of State for the Environment. And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression “natural justice” has been associated, perhaps too closely associated, with procedures followed by courts of law. The developing application of the doctrine of natural justice in the field of administrative decision-making has been very largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making. The effect of Atkin L.J.’s influential observations in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd., was to focus attention on those elements in the making of administrative decisions which are analogous to judicial determination as a means of determining whether the rules of natural justice apply in a particular case. The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision-making, procedures which do not necessarily take curial procedures as their model: see Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police.
And at 585:
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No.2], per Jacobs J.
5. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366, Deane J said that to avoid the potential for confusion between the relevant common law requirements of fairness and detachment and the jurisprudence of wider theological and civilian perceptions of natural law, “[T]hese days, it is customary and convenient in this country to avoid references to … ‘natural justice’ and to speak of the ‘requirements of procedural fairness’ when referring to the fairness and detachment required of a person entrusted with statutory power or authority to make an administrative decision which may adversely and directly affect the rights, interest, status or legitimate expectations of another in his, her or its individual capacity.”
6. The point of the distinction is to emphasise the word “procedural”. Why is that important?
7. Despite more high sounding reasons such as separation of powers under the Commonwealth Constitution or the importance of Chapter III, the fundamental, although related, reason for the emphasis is the perception in Australia of the proper functions of the courts. That is, the courts are to stay away from the merits of administrative decision-making when engaged in judicial review. Similarly, as Brennan J explained in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36, the court has no jurisdiction simply to cure administrative injustice or error.
8. One can see a concisely expressed version of this in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at : “what is required by procedural fairness is a fair hearing, not a fair outcome”. The reviewing court is concerned with the fairness of the procedure adopted, not the fairness of the decision produced by that procedure. Aronson and Groves (Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook, 5th ed, 2013) 399) note that a contrary approach has been adopted in the United Kingdom and New Zealand with the adoption of “substantive unfairness” as a ground of review: still to be distinguished from merits review. The law in the United Kingdom has moved well beyond what Lord Brightman said in Chief Constable of North Wales Police v Evans  1 WLR 1155 at 1173: “judicial review is concerned, not with the decision, but with the decision-making process”.
9. In practical terms, the bulk of a procedural fairness case in modern times is not, as it used to be, whether procedural fairness is required but is the content of procedural fairness in the circumstances of the particular case. As Mason J said in Kioa at 584:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to “fairly listen to both sides” being “a duty lying upon everyone who decides anything”: Board of Education v. Rice. But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
“... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.”
(Salemi (No 2), per Jacobs J.)
Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.
10. It will be recalled that in Kioa the applicants succeeded because the High Court distinguished Salemi on the basis of subsequent legislative amendments and held that the power to make a deportation order under the Migration Act 1958 (Cth) did not exclude the requirements of procedural fairness and because a written submission to the Minister’s delegate, although not the statement of reasons, included paragraph 22 which read:
Mr Kioa’s alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia’s immigration laws must be a source of concern.
This, it was held, per Mason, Wilson, Brennan and Deane JJ (Gibbs CJ dissenting), meant that the applicants were entitled to be heard before the making of the deportation orders against them.
11. I am leaving out here the “codified” procedural fairness in the Migration Act where procedural fairness matters appear to be more specific and thus more technical.
12. Whether procedural fairness is required can be traced from a court based model to broader principles by way of Kioa, Annetts v McCann (1990) 170 CLR 596, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. It is worthwhile recalling even briefly the facts in Salemi v MacKellar (No 2) (1977) 137 CLR 396 to show how far we have moved: both from the court model and from property and other legal rights.
13. In Salemi v MacKellar (No 2), after a strike out skirmish and an amendment the subject of Salemi v MacKellar (No 1) (1976) 137 CLR 388, it was held by Barwick CJ, Gibbs and Aickin JJ, Stephen, Jacobs and Murphy JJ contra, that the Minister may issue a deportation order under s 18 of the Migration Act without first giving the person affected an opportunity to be heard. The proceedings were on the defendant’s demurrer to the plaintiff’s statement of claim so the facts were clear. In the result the demurrer was allowed and the action dismissed by a statutory majority.
14. The plaintiff was an Italian citizen, he lawfully entered Australia, he had permits to enter and remain but remained in Australia after the expiry of the permits. The Minister published four news releases announcing a so-called “amnesty” to prohibited immigrants such as the plaintiff if they met certain standards of health and good character and had no record of serious crime. The offer was to remain open until 30 April 1976, acceptance being by the making of an application for a permit to remain in Australia. The plaintiff met the normal standards of health and good character et cetera and he did make application to the Minister before 30 April 1976 for an entry permit in permitting him to remain in Australia. It was in reliance upon the contents of the news releases that the plaintiff came forward and identified himself to the Minister and sought the amnesty which the releases offered. The alleged amnesty was not granted to the plaintiff and the Minister intended to treat him as a prohibited immigrant and to deport him accordingly pursuant to s 18 of the Migration Act.
15. One of the arguments was that the plaintiff had acquired a “legitimate expectation” of which he could not now be deprived without being afforded such an opportunity to be heard by the Minister on the question of his deportation as the requirements of natural justice called for. He would also be entitled to be told of the grounds of his deportation and the grounds would be examinable judicially to ensure that they were relevant and proper to the exercise by the Minister of his power of deportation under s 18. Barwick CJ could find no basis whatever on which he could hold the power given by s 18 could be construed as qualified by the requirement that in all circumstances natural justice be accorded the prohibited immigrant before his deportation was ordered (at 404). As to the alleged “legitimate expectation”, Barwick CJ reasoned that the prohibited immigrant had no claim to the consideration of his personal circumstances. The Minister had no discretion to allow a prohibited immigrant to remain as such at large. The Minister’s news releases were no more than a statement of policy (at 406). Gibbs J regarded the duty to act fairly as simply flowing from the duty to observe the principles of natural justice (at 418), and as a matter of the true construction of the statutory provision in light of the common law principles, and said that the status of the plaintiff as a prohibited immigrant and that the power in s 18 was conferred quite unconditionally suggested that the principles of natural justice were not intended to apply (at 420-421). Once it was concluded that the Act did not impose a duty to act in accordance with the principles of natural justice, it was not relevant that statements made by the Minister may have led the plaintiff to expect that he would not be deported. The Minister was entitled to exercise the power even if the exercise of it appeared to be unfair, and to defeat expectations which his statements had raised (at 422). Aickin J agreed with Gibbs J (at 460). Stephen J said that s 18 contained no clear express exclusion of the rules of natural justice nor could any inference to that effect be extracted from the scheme of the Act (at 440-441). He said the plaintiff could not seek to hold the Minister to his promise not to deport and grant resident status but he may point to the promises having given rise to such an expectation as would entitle him to complain of a want of natural justice unless he be accorded an opportunity to put his case to the Minister: the news releases served to confer upon the plaintiff procedural rather than substantive rights (at 442-443). Jacobs J said that the legislature was assumed by the courts to be aware of the principles of natural justice which were a part of the common law (at 451). He could discern no legislative intention from s 18 in its context wholly to exclude the application of the principles of natural justice (at 452). The plaintiff was, in the fairness which underlay the application of the principles of natural justice, entitled to know the reason for the proposed deportation and to present submissions to the Minister which the plaintiff may think may displace the reason and any facts upon which it may be based (at 453). Murphy J held that s 18 was conditioned by rules of natural justice (at 456-457).
16. This construction of s 18 was applied a month later in R v MacKellar; ex parte Ratu (1977) 137 CLR 461, which did not involve an amnesty.
17. I regard the rise and fall of “legitimate expectation” as a, perhaps temporary, bridge on the road to the position explained by Mason J in Kioa, see  above. It will be recalled that in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the Court said at  and  that the term “legitimate expectation” had limited utility and scope in Australian law now that it was accepted that, in the absence of a clear contrary legislative intention, decision-makers must comply with the rules of procedural fairness.
18. Gleeson CJ expressed the point in Lam at  as follows:
But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
19. We now know from Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at  per Gummow, Hayne, Crennan and Bell JJ that:
… for the reasons given in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam by McHugh and Gummow JJ, Hayne J and Callinan J, the phrase “legitimate expectation” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded. The phrase, as Brennan J explained in South Australia v O’Shea, “tends to direct attention on the merits of the particular decision rather than on the character of the interests which any exercise of the power is apt to affect”.
[Contrast what French CJ and Kiefel J said at - and also contrast what the plurality said at  about the position where the Minister had not decided to consider the exercise of his power.]
20. Note that the Offshore Processing Case (2010) 243 CLR 319 at [74ff] shows how far we have travelled since Salemi (No 2):
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 the present cases, the Commonwealth and the Minister submitted that, if any power was being exercised under s 46A(2) (and they submitted that it was not), there was no implied obligation to afford procedural fairness because the power is not a power to destroy, defeat or prejudice a right, it is a discretionary power to confer a right. This submission was framed in a way that took up only part of what was said in Annetts. Reference was made in Annetts to power to destroy, defeat or prejudice not just rights but also interests or legitimate expectations.… It is enough to say that the references in Annetts to “prejudice”, “interests” and “legitimate expectations” suggest that the contrast which the Commonwealth and the Minister sought to draw between destruction, defeat or prejudice of a right, on the one hand, and a discretionary power to confer a right, on the other, proceeds from too narrow a conception of the circumstances in which an obligation to afford procedural fairness might arise. The more comprehensive statement of principle by Mason J in FAI Insurances Ltd v Winneke sufficiently answers the submissions by the Commonwealth and the Minister. His Honour said that the obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense, but extends to the exercise of a power which affects an interest or a privilege. It is then important, in the present matters, to identify the rights and interests affected.
Rights or interests affected?
Contrary to the submissions of the Commonwealth and the Minister, the Minister’s decision to consider whether power should be exercised under either s46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case.
21. Similarly, in Plaintiff S10/2011, Gummow, Hayne, Crennan and Bell JJ rejected the Commonwealth’s argument that the relevant dispensing provisions of the Act did not meet the requirement, for attraction of principles of procedural fairness, that the failure to exercise them is not “apt to have a substantial adverse effect on some identifiable right, interest, privilege or legitimate expectation”. At  these judges said:
A non-citizen who is in the position of the plaintiffs and seeks the engagement and favourable exercise of the dispensing powers under the federal statute with which these cases are concerned does so to obtain a measure of relaxation of what otherwise would be the operation upon non-citizens of the visa system; it is the requirements of that system which must be met to lift what otherwise are the prohibitions upon entry and continued presence in Australia. This is sufficient to satisfy the principles just discussed.
This was after adopting the reasoning of Brennan J in Kioa at 616-617:
There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests – licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials – intends that the interest of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.
22. There has, I think, been a shift in focus from the nature of the power in the hands of the decision-maker to the effect on the individual of an exercise of governmental power and thus, in deciding whether or not procedural fairness is required, to decisions that affect the status of the person affected.
23. Returning then to the content of procedural fairness various matters and other rhetorical figures have been employed, some imported from England with shades of Sir Henry Newbolt’s “Vitaï Lampada”. One example is “fair play in action”: Ridge v Baldwin  1 QB 539 at 578; Wiseman v Borneman  AC 297 at 309. The expression “a fair crack of the whip” is another sporting metaphor used by Lord Russell in Fairmount Investments Ltd v Secretary of State for the Environment  1 WLR 1255 at 1266. The inventors of these expressions had not seen modern professional sport. In Australia, as explained in Ex parte Lam at  per Gleeson CJ:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
24. There are only a few guideposts. What do we know? The particular content to be given to the requirements to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504:
… [T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [“to correct or contradict any relevant statement prejudicial to their view”]in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin. As Tucker L.J. said in Russell v. Duke of Norfolk, in a passage approved by the Privy Council in University of Ceylon v. Fernando, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth”.
25. The difficulty comes down to what is “fair” and how do you judge it in a particular case: is it no more than what strikes a judge as fair or unfair?
26. We know that a decision-maker does not have to reveal their thought processes: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
27. Does resort to “natural justice” assist in making the judgement of what is, or is not, procedurally fair in the circumstances of a particular case? I think it should be recognised that “procedural fairness” is a technical legal expression. It is less likely to be confused with the “correctness” of the decision itself than the term “natural justice” which, a reading of hundreds of notices of appeal under the Migration Act shows, often translates into no more than disagreement with the result. Also, for Australian purposes, as Aronson and Groves suggest (at page 404) the term “natural justice” connotes not only “procedural fairness” in the Australian sense but may also embrace requirements of rationality and logically probative evidence. (In this respect see the discussion by the Full Court in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd  FCAFC 83; (2014) 311 ALR 387 at -)
28. What is the value or what are the values of procedural fairness? We are told it is not opposed to the interests of effective administration. It can improve the quality of executive decisions by providing information. Individuals will be interested in participating in decisions by which they could be affected: they will wish to have an influence on the outcome of the decision. So procedural fairness may improve the quality of the decision. It may assist in imparting the sense that justice has been done (R (Osborn) v Parole Board  AC 1115 at ), and been seen to be done. Public acceptance of the decision may be enhanced. In some contexts, it may protect human dignity. It may promote objectivity and impartiality (Harry Woolf et al, (eds) De Smith’s Judicial Review (Sweet & Maxwell, 7th ed, 2013) 344-346). In my opinion it means that the perspective of the decision-maker must be altered so that instead of the only perspective being that of the person exercising the power, affording procedural fairness means that the perspective of the person affected must necessarily be taken into account. This, in my view, reflects a shift in Australia since the 1970s from administrative power being exercised as a matter of governing ex cathedra, to a perception that those governing are answerable to and should be responsive to, those affected by that exercise of power.
29. Can anything more be stated, on this limb of procedural fairness, than that the person affected should have a reasonable opportunity to be heard and the following elements may be identified:
- prior and adequate notice of the decision;
- adequate disclosure so that effective representations may be made: see Alphaone above. A recent working example is SZSSJ v Minister for Immigration and Border Protection  FCAFC 125 at  and following (2 September 2015);
- the reasonable opportunity (or real chance) to present the person’s case to a tribunal or to make representations to a decision-maker, and the requirement to consider the case or the representations – this is how I would explain the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 where it was held at  that to fail to respond to a substantial, clearly articulated argument relying upon established facts was to fail to accord natural justice;
- the issue of whether there should be a hearing and, if so, the form it should take, including whether or not representation should be afforded.
30. In evaluating these elements in the precise factual circumstances which arise, the court must consider the nature of the decision-maker, the subject matter of the decision, the terms of the power or the width of the discretion, the potential consequences for the person affected, and, where appropriate, third-party interests including the public interest.
31. I end by suggesting that although whether or not procedural fairness has been afforded is a matter for the court and there is no deference (see also R (Osborn) at ), Brennan J identified the right perspective in saying in Kioa at 627:
As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair.
But at the same time it is not useful to begin the inquiry about procedural fairness by looking at what the particular decision-maker or Tribunal said in their reasons. It is necessary to begin by working out what procedural fairness required the decision-maker or Tribunal to do in the course of making their decision or conducting their review: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at .