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Week 7 Natural Justice (THE RULE AGAINST BIAS see Week 7 notes Section…

- - - - In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Mason CJ and Brennan J stated this rule as requiring a decision-maker “ to give the person a fair opportunity of presenting his or her case against the giving of a direction, including an answer to the alleged non-compliance or contravention.”
    - - Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70. Bias can arise from a decision-maker’s financial or personal interests in the decision or his prior expression of views or his previous role in making the decision.
  - - - • good administration;
      - • better decision-making by ensuring that the decision-making considers relevant information;
      - • diligence and objectivity of the decision-maker;
      - • public confidence in the decision-making process and the correctness of decisions; and
      - • reflect basic notions of fairness.
- - - - Cooper v Board of Works for the Wandsworth District (1863) 143 ER 414, Erle CJ in the Court of Common Pleas ruled that notwithstanding the failure of a statute to impose a duty on an executive body to act judicially or to accord natural justice, such a duty may be implied in certain cases.
      - Ridge v Baldwin (1964) AC 40, Lord Reid in the House of Lords stated that the principle audi alteram partem (“hear the other side” or prior hearing rule) applies “to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals,” including their dismissal from an office which requires “something against a man to warrant his dismissal.
      - Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44, Gleeson CJ stated that there exists an implied duty of decision-makers to accord natural justice when the exercise of their power can destroy a person’s rights, interests or legitimate expectations.
        
        Where Parliament confers a statutory power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of Parliament’s assumed respect for justice.
      - Kioa v West (1985) 159 CLR 550, Brennan J stated that “(w)hen the legislature creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention.”
    - - Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 by Gleeson CJ who said that Parliament intends the requirement of natural justice to be observed in the exercise of a statutory power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations “unless it makes the contrary intention plain.”
        
        Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 per Gleeson CJ that an implied duty of decision-makers to accord natural justice exists in a specific instance: “Where Parliament confers a statutory power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations.” This raises the question of when the duty cannot be implied.
      - duty to observe natural justice is statutorily recognized under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides that an order of review can be sought on the ground “that a breach of the rules of natural justice occurred in connection with the making of the decision.”
      - Kioa v West (1985) 159 CLR 550, Mason J clarified that “the duty does not attach to every decision of an administrative character.”
      - identify cases when the requirement of natural justice cannot be implied. These relate to decisions that do not individually affect a right, interest or legitimate expectation of a person:
        
        • decisions made by Cabinet (McGuinness v State of New South Wales (2009) 73 NSWLR 104);
        
        • some exercises of prerogative power;
        
        • decisions of a subordinate legislative character; and
        
        • some types of ‘policy’ and planning decisions that affect the community generally and impact on individuals only to the extent that they are members of the relevant class of people: South Australia v O’Shea (1987) 163 CLR 378; Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274.
    - - in Kioa v West (1985) 159 CLR 550, even though the requirement of natural justice can be overridden or displaced by clear intention of the Parliament, the “critical question in most cases is not whether the principles of natural justice apply.
      - three minimum requirements
        
        of the hearing rule
        
        • prior notice that a decision will be made;
        
        • disclosure of an outline or the substance of the information on which the decision is proposed to be based (that is, a summary of the case that has to be met); and
        
        • an opportunity to comment on that information, and to present the individual’s own case
  - - - • Whether the original decision is preliminary or final
      - • Whether the original decision is made in public or private.
      - • Whether the original decision-maker must comply with formalities.
      - • Whether the decision is of an urgent nature.
      - • Whether the appellate body is judicial, internal or domestic .
      - • Whether the breadth of the appeal is limited or is to be heard de novo
      - • Whether the nature of the interest, the consequences for the individual and the subject matter of the litigation suggest that the original decision maker would need to comply with the requirements of procedural fairness.
- - - - same case, Hayne J also explained what is meant by bias
        Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’
  - - - actual
      - apprehended
  - - - This is demonstrated in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
        
        The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors.