AS NATURE INTENDED: IUS NATURALE AND THE PRINCIPLE OF NATURAL JUSTICE

I am a great fan of Paul Kelly’s writing on the subject of Australian political life. His End of Certainty I consider a minor masterpiece.. I highly recommend Kelly’s The March of Patriots: the Struggle for Modern Australia about the fortunes and vicissitudes of the Howard and Keating governments.  

I was a little startled, therefore, by this passage from that excellent book on the question of natural justice. I doubt Kelly holds the view expressed below, yet it is important to underline the ‘basal principle’ of natural justice, as Sir Owen Dixon would say. Natural justice is a precept of our common law system that must be stressed, and understood.

Here is the passage centred around the High Court’s vindication of natural justice and procedural fairness in the 1985 leading decision, Kioa v West in contradistinction to the Howard government’s metrical approach to border protection:

‘Put in crude terms, the courts were seen to be letting in people that the government, acting through its bureaucracy, wanted to keep out’. This struggle is fundamental to the debate about a Bill of Rights.

Why was the executive so alarmed? The question was rarely asked or answered. But the history provided an answer. There was a landmark decision – the High Court’s 1985 ruling in Kioa v West – establishing a new rule, namely, that the validity of a deportation decision would hinge on whether natural justice had been preserved.

The courts would determine what this meant from case to case. This decision and others, in the assessment of Mary Crock, provoked ‘an explosion of migration cases in the Federal Court such that ‘in the space of five years the Federal Court [turned] the notion of administrative discretion on its head’. It declared unlawful decisions where the court decided applicants had not got an adequate hearing. The problem, as explained by Commonwealth Ombudsman John McMillan, was the absence of any procedural definition of natural justice, leaving ‘a legal obligation of inexact and uncertain dimension’ on decision-makers, opening the door to judicial intervention.

Hand’s law spelt out a procedural code to be followed by departments and tribunals to achieve natural justice – but this was quickly rejected by the courts. The system was locked in a downward spiral: the refugee lobby adopted a litigation strategy; the courts responded by being more interventionist; and the executive retaliated with fresh laws to curb the bench. The battle lines were drawn’.    

With respect the argument is backwards, and the converse proposition is true, indeed fundamental. Natural justice has long been known to the common law: perhaps not since time immemorial, but the concept is certainly well established in our common law precedent. Even before the Bill of Rights and Act of Settlement, I would submit, the common law was jealous of life, liberty and property of the subject and of all who appeared before her Courts praying for relief.

As the following extracts from the authorities show, the common law respect for natural justice, as procedural fairness, has been a substantive concern, and the Bench has always been tasked with the duty of providing the means for applicants to be heard.

Not only is the difficulty of the task of no consequence, but rather the Courts are solemnly sworn to perform their judicial duty of declaring the principle of natural justice, and though the authorities are diverse on the luxuriant growth of ever-widening fact situations, the common law is meaningless without the most far-reaching application of the principle to the common law petitioner, petitioning as of right and ancient custom. One cannot escape the principle, be it ever so difficult for governments to apply.

Ridge v Baldwin

Per Lord Reid

The authorities on the applicability of the principles of natural justice are in some confusion and so I find it necessary to examine this matter in some detail. The principle audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of judges of the highest authority. In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it had been interpreted in the courts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle.

Willes J. said ((1863) 14 C.B.N.S. 180, 190) that the rule was "of universal application, and founded upon the plainest principles of justice," and Byles J. said  ((1863) 14 C.B.N.S. 180, 194) that

"although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature

We do not have a developed system of administrative law - perhaps because until fairly recently we did not need it. So it is not surprising that in dealing with new types of cases the courts have had to grope for solutions, and have found that old powers, rules and procedure are largely inapplicable to cases which they were never designed or intended to deal with. But I see nothing in that to justify our thinking that our old methods are any less applicable today than ever they were to the older types of case. And if there are any dicta in modern authorities which point in that direction then, in my judgment, they should not be followed.

Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Woad. (L.R. 9 Ex. 190) I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.

Per Lord Evershed

It has been said many times that the exact requirements in any case of the so-called principles of natural justice cannot be precisely defined; that they depend in each case upon the circumstances of that case. According to Sir Frederick Pollock the meaning of the phrase "natural justice" is "the ultimate principle of fitness with regard to the nature of man as a rational and social being"; and he went on to point out that the origin of the principles could be traced to Aristotle and the Roman jurists. Your Lordships were therefore not unnaturally referred to a great many cases, but, as I believe that your Lordships agree, it is by no means easy to treat these decisions as entirely uniform and still less easy to be able to extract from them the means of propounding a precise statement of the circumstances or of the cases in which the principles can be invoked before the courts. I am, however, content to assume that the invocation should not be limited to cases where the body concerned, whether a domestic committee or some body established by a statute, is one which is exercising judicial or quasi-judicial functions strictly so called; but that such invocation may also be had in cases where the body concerned can properly be described as administrative - so long as it can be said, in Sir Frederick Pollock's language that the invocation is required in order to conform to the ultimate principle of fitness with regard to the nature of man as a rational and social being.

Metropolitan Properties Co. (FGC) Ltd v Lannon

Per Lord Denning

‘So far as bias is concerned, it was acknowledged that there was no actual bias on the part of Mr. Lannon, and no want of good faith. But it was said that there was, albeit unconscious, a real likelihood of bias. This is a matter on which the law is not altogether clear: but I start with the oft-repeated saying of Lord Hewart C.J. in Rex v. Sussex Justices, Ex parte McCarthy ([1924] 1 K.B. 256, 259): "It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

In Reg. v. Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association, ([1960] 2 Q.B. 167, 187; [1960] 3 W.L.R. 305; [1960] 2 All E.R. 703, C.A.) Devlin J. appears to have limited that principle considerably, but I would stand by it. It brings home this point: in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: see Reg. v. Huggins ([1895] 1 Q.B. 563); and Rex v. Sunderland Justices, ([1901] 2 K.B. 357, C.A.) per Vaughan Williams L.J. ([1901] 2 K.B. 357, 373,C.A.)Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: see Reg. v. Camborne Justices, Ex parte Pearce, ([1955] 1 Q.B. 41, 48-51; [1954] 3 W.L.R. 415; [1954] 2 All E.R. 850, D.C. ) and Reg. v. Nailsworth Licensing Justices, Ex parte Bird. ([1953] 1 W.L.R. 1046; [1953] 2 All E.R. 652, D.C.  [1968] ) There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."

Other authorities

Kioa v West (1985) 159 C.L.R. 550 at 583, High Court (Australia).

Knight v Indian Head School Division No. 19 1990 CanLII 138, [1990] 1 S.C.R. 653, Supreme Court (Canada).

Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004, [2000] Q.B. 451, Court of Appeal (England and Wales).

Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005] 4 S.L.R.(R.) [Singapore Law Reports (Reissue)] 604, High Court (Singapore).

Re Shankar Alan s/o Anat Kulkarni [2007] SGHC 12, [2007] 1 S.L.R.(R.) 85, H.C. (Singapore).

In conclusion, the principle of natural justice is derived itself from the ius naturale and, hence, is reconciled neither to the arbitrary whim of a rampant legislature, nor to the mechanical “justice” of a technocratic administrative approach to government. That the principle is broad does not make it any less fundamental to the administration of justice, as opposed to the pressures of diktat. The control philosophy of immigration detention which Kelly illustrates in the Chapter “Protecting the Borders” must go and is foreign to the common law which the exponents of the control philosophy presume to clarify..

After all, the above conclusion is only just…