Administrative Law - Week 5: Procedural Fairness (Natural Justice)

Introduction

• Focus on Natural Justice also known as Procedural Fairness.
• Natural justice must be extended to anyone whose rights, interests, and legitimate expectations are affected by a decision.

Key Concepts of Procedural Fairness

1. Hearing Rule: Affected person should be:
   • Shown the materials relied on by the decision-maker.
   • Given a reasonable opportunity to respond.
2. Right to an Unbiased Decision Maker: Divided into two types:
   • Actual Bias
   • Apprehended Bias

Actual Bias

• Definition: When a decision maker does not bring an impartial mind to the decision; they have predetermined the outcome.
• Commonly due to discrimination (gender, race, etc.).
• Example: The Crown v. Lee ex pate Shaw (150 years old English case).
  • Local sanitation committee member who judged a butcher he was prosecuting.

Apprehended Bias

• Definition: No actual wrongdoing but a perceived conflict of interest that may bias the decision maker.
• Originates from the idea: "Justice must not just be done, but must be seen to be done."
• Case: Ebner v. Public Trustee
  • Objective Test: What a fair-minded lay observer might reasonably apprehend.
  • Threshold: Low; bias exists if the observer might reasonably apprehend bias.

Types of Apprehended Bias

1. Personal/Family Relationship
   • Positive or negative relationships affecting decisions.
2. Financial Conflict of Interest
   • Example: Kirby v. Centro Properties
     • Justice Finkelstein recused himself due to his superannuation fund owning shares in Centro Properties.

Situations Not Considered Bias

1. Necessity
   • When no reasonable replacement decision maker is available.
   • Case: Laws v. Australian Broadcasting Tribunal and British American Tobacco v. Lorry
     • High Court discusses necessity; approved but rejected in the specific case.
2. Expression of Opinion or Tentative Conclusion
   • Judges expressing tentative views to allow parties to address concerns is about fairness, not bias.

Conclusion

• Natural Justice: Ensures rights to be heard and unbiased decision-making.
• Importance: Fundamental to ensure fairness, prevent corruption, and empower individuals.
• Exam Tip: Natural justice is a recurrent question in administrative law exams.

Next Week

• Focus on narrow ultra vires grounds for review and jurisdictional error of law.