[Music] g'day everyone and welcome to the first video in week five of laws 3006 administrative law so far we've learned about the nature of administrative law and also about the old-fashioned common law writs of certurari mandamus prohibition habeas corpus and quo warranto we know that reviewable decisions are decisions of an administrative nature made under an enactment we've learned about the distinction between merits review and legal review we know the adjr act is a thing and that it contains a menu of grounds on which a decision can be reviewed the biggest the most important the most fundamental of those grounds is called natural justice honestly if you understand natural justice if you really understand it then the rest of administrative law is just detailed natural justice is the heart and soul tell me i don't need to make this any clearer it's massively important it's also fundamentally pretty simple even though people often struggle to get it and yet i guarantee you've seen natural justice in action thousands of times in your life already it's probably already settled deep in your bones when you think about what fairness means let me prove it i want you to imagine a scenario where two children are fighting there's screaming there's pushing there's probably crying name calling frets to dob we've all been there right now we're going to run this scenario three times in the first scenario an adult walks into the room it's the ultimate power holder mum both of the kids are hers she yells until they get off one another and she turns to the first kid what's going on the first kid says he pushed me for no reason mum turns to kid number two did you push your brother kid number two says yes but i get the ipad at four o'clock and he wouldn't give it to me mum starts by checking that the ipad is undamaged but then she says well i'm not real happy with either of you you should have handed the ipod pad over at four o'clock you know the rule but you should have come and told me what was going on instead of pushing your brother you're both in trouble so you'll both be doing chores for half an hour after dinner now seriously neither kid is going to be happy there but they both got to have their say and they each understand why they're being punished now let's run the scenario again this time mum walks in will you two stop it i'm sick of the two of you fighting all time you're both doing chores for half an hour after dinner get out of my sight now in each of these two scenarios the outcome is the same they end up with the same punishment but can you see that in the second scenario the kids are going to feel like the punishment wasn't fair one kid still thinks it's unfair that they didn't get the ipad and the other kid still thinks it's unfair that they got pushed and they both feel like it's unfair that they're getting punished let's run the scenario one more time this time the two kids are not siblings they're school friends the fight starts and mum rushes in just like our first mum she separates them and says to her own child what's going on her child says he pushed me for no reason she turns to the other child well have you ever noticed how mums and only mums have that certain way of saying well the other kid says he was saying horrible things about my sister mum says i don't believe you he would never say that you're not welcome here if you're going to be pushing my son around i don't know how your mother brought you up but that's not how we behave here and she sends him home now that kid's going to be furious about the favoritism the bias shown by the mother in that situation so what do we learn from these scenarios in the first scenario mum was impartial both the kids were hers and she gave each of the kids a chance to explain themselves her decision although painful for the kids doing chores was arrived at fairly in the second scenario mum was still impartial but she didn't give the kids a chance to explain themselves at all she just rushed in made a snap decision and handed out punishments the kids experienced this as unfair in the third scenario mum gave both kids a chance to explain themselves but she was not impartial it really didn't matter what the visiting kid said he was going to end up copying the blame in the end to have a fair decision whether the decision is right or wrong to have a fair decision you need two things first everyone has to have the chance to have their say the kids who didn't have their say were justifiably upset second you need an impartial decision maker an unbiased decision maker the kid who was punished by the biased mum was justifiably upset the rule of natural justice is exactly that for a decision to be made fairly a person who's going to be affected by that decision deserves the chance to be heard and an unbiased decision maker this idea is as old as civilization itself it can be found in genesis in the bible twice in the first few chapters where according to christian tradition god says to eve what is this thou hast done after she eats the forbidden fruit and gives some to adam in chapter 4 of genesis when cain murders his brother abel god says what hast thou done natural justice underlines the very shape of our court system i mean when you think about it isn't this what court really is a court makes decisions but it does so after giving both sides the chance to have their say and it provides impartial decision makers in the judge and the jury the requirement for natural justice though doesn't stop at the courtroom door as a general principle any public decision maker whose decisions can affect individuals must follow the rules of procedural fairness let's look at a couple of examples from the cases i want to start with cooper and the board of works for the wandsworth district a case from 1863 in this case mr cooper was in the process of building a house however he hadn't filed certain paperwork with the board of works the statute gave the board of works the power to knock down any buildings that were being constructed when the paperwork hadn't been supplied and that's exactly what they did with no notice to mr cooper he sued them for trespass on the basis that they should not have taken steps to knock down the house he was building without first giving him an opportunity to explain himself the court agreed with mr cooper the chief justice said i think the board ought to have given notice to the plaintiff and to have allowed him to be heard the chief justice went on to say that mr cooper might well have had a proper explanation for the failure to file the form and in that case the board would be doing the wrong thing by knocking down the house can you see that the court in this case wasn't interested in the merits of the decision they didn't care for instance whether the house was properly designed or being properly built all they were considering was the way in which the decision was made and their decision was that mr cooper was entitled to be heard as a matter of natural justice before anybody knocked over his house fair enough too in australia the big case for natural justice is called kiowa and west mr kiyo was a citizen of tonga and he and his wife came to australia in 1981. they had a daughter in australia who was therefore entitled to australian citizenship then in early 1982 cyclone isaac absolutely destroyed tonga thousands upon thousands of people lost their homes when the kiowa's visas expired they simply changed their address and stayed on in australia from their perspective they did this because their daughter was australian and they wanted her to remain in australia but also because they could send money home to their cyclone devastated families whereas if they returned to tonga they would just add to the number of people there in crisis the immigration department tracked them down and arrested them now there's no doubt that the kiowas were at that time here unlawfully however given their circumstances you would ordinarily have given them a fair shot at remaining in australia and their daughter was an australian citizen who couldn't be deported and there really was a need for resources to be sent to this island nation with whom australia has a very close friendship however the immigration department received intelligence that mr kiowa was in fact part of a network of people engaged in immigration scams on the basis of that information they decided to deport the kiowas the thing is they never gave that information to mr kiowa he was never given the chance to answer those allegations didn't even get the chance to deny that he was involved let alone explain any involvement he might have had it was profoundly unfair and the high court quashed the decision and sent it back to the department for them to consider the application properly in that case justice mason gave what is now the classic expression of the meaning of natural justice in australia he said 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 that is the key statement of natural justice in australia everything else flows from that statement it's important to understand at this point that the terms natural justice and procedural fairness are interchangeable they mean for our purposes exactly the same thing natural justice is the old-fashioned common law term and procedural fairness is the term adopted in modern statute law but they express exactly the same concept this week we're going to look in much more detail at the rules of natural justice but don't lose sight of the forest because you're looking at all the trees ultimately natural justice comes down to two rules the hearing rule and the bias rule you have the right to be heard and you have the right to an unbiased decision maker that's natural justice okay in video two we're going to start looking at the key phrase that we need to understand in order to understand natural justice the notion of rights interests and legitimate expectations see you there you