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Category Archives: Supporting your application

March 18, 2022

Natural Justice, the protector of fairness in decision making

What is Natural Justice? If the department requests more information on a visa application, you may have seen the term Natural justice. The rule of Natural Justice is the protector of fairness and impartiality in government actions. The rule also protects the people who may become a part of these government decisions because the decision may directly affect them.

The rule of Natural Justice is focused on how a decision is made rather than the reason for the decision. Furthermore, another term used for Natural Justice is the term procedural fairness. They both are the same, wherein many professionals use both terms in the legal world. So, if you see or hear the term procedural fairness, it is another word for the rule of Natural Justice.

There are two rules for Natural Justice: the hearing rule and the bias rule. The hearing rule instructs the decision-maker to give a fair hearing to the person affected by their decision. Also, the opportunity must be given before making the decision. The bias rule will look at if the decision-maker was impartial during the decision-making process and delivered a decision that is not biased to any parties. As you can see, Natural Justice is an integral part of the government decision-makers. Not only that, but the rule is also an important part of judicial decision making. Because of the vast importance of the rule, it has also been embedded into legislation such as the Migration Act.

In the case of Kioa v West (Kioa), the court identified a very important aspect for Natural Justice, also called the threshold test. The test is to find whether the rule of Natural Justice will be applicable. In Kioa, what has been identified is that the rule of Natural Justice will apply to an administrative decision that affects the rights, interests, and maybe legitimate expectations of a person in an immediate way. As an example, a migration decision to  cancel a visa. This decision will have an immediate impact on the person. Therefore, the rule of Natural Justice will be applicable before making a decision in this nature.

What does it mean by receiving a fair hearing?

The purpose of the hearing rule is that a person must be given a fair hearing before making a decision which may affect rights, interests, and maybe legitimate expectations in an immediate way. In the case of Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex Parte Lam, his honour Chief Justice Gleeson said that a guiding principle of fairness will depend on the individual case. His honour stated that: ‘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’. Furthermore, what is required in the hearing rule is that the decision-maker must give a person who could be affected by the decision a notice. In this notice the decision maker must highlight that there will be a decision made which may affect the person. Also, the decision maker is required to disclose the case which is in question to them and must give an opportunity to the affected person to present their side of the story which is relevant to the case in question.

Giving notice to the affected person can vary depending on the nature and the circumstances of the case. The notice is encouraged to give in writing, but the verbal notice is also acceptable in some instances. As said, this is always depending on the circumstances of the case. Ultimately, the notice should have enough accurate information for the affected person to understand the seriousness of the case and prepare their response. This is where disclosing the case in question to the affected person is important. In Kioa, the court stated that ‘in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant, and significant to the decision to be made. Therefore, the decision-maker must provide information and material to the affected person. Then, the person can understand the case in which they need to provide any facts, evidence, and arguments about their part of the story.

The third element in the hearing rule is before making a decision is allowing the affected person to present their case as a response. This does not mean that each person affected by a decision will have the opportunity to put their case forward as they wish to. There will be requirements that the person must follow to ensure that they are providing their response as necessary. There are several ways a person can present their case. It is not a rule that a person must allow to present their case orally. In most scenarios, the cases are encouraged to present, respond, and solve on paper. For example, in migrations matters, the department of home affairs gives a person a notice via email or mail. The person is also required to respond in the same manner. The decision made will also be communicated via email or mail. While there would be interviews for the person in some instances, most of the decisions would be made on paper. Let’s say that the affected person disagrees with the decision made on the paper. And they believe that if there was an oral hearing, they would have had the opportunity to present their case in a more reasonable manner than on paper, then the person has a right to appeal to have an oral hearing. In most migration matters, the affected person can request the department’s review with the Administrative Appeals Tribunal (AAT). AAT will conduct a hearing to provide an oral decision at the end of the hearing. If there was no decision made at the hearing, then AAT would communicate the decision via writing.

What is the bias rule?

It will not be useful for a fair hearing if the decision-maker has already made up their mind before making the decision. Therefore, natural justice prevents the decision-maker from being impartial and biased before making a decision. There are two grounds to the bias rule: actual bias and apprehended bias.

Before making a decision, the decision-maker must not have a set and relevant state of mind. If the decision-maker had a relevant state of mind, then the decision would be made by being actually biased. As the court stated in Minister for Immigration and Multicultural Affairs v Jia, an actual bias exists where a decision-maker has ‘a state of mind so committed to a conclusion already formed as incapable of alteration, whatever evidence or arguments may be presented. If there was an actual bias, there would be severe consequences for the decision-maker.

On the other hand, apprehended bias exists where a person apprehended that the decision-maker might not have an impartial mind in making the decision. In a precedent case, Ebner v Official Trustee in Bankruptcy the Court stated that apprehended bias can be explained as ‘a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unbiased mind to the resolution of the question the decision-maker is required to decide. This means that it depends on how a fair-minded person observes a hypothetical state of mind rather than the decision-maker’s actual state of mind. Also to understand why the decision-maker might not be impartial and unbiased. The application of the bias rule depends on each case because each case will have its own circumstances. Each case will require a detailed assessment to understand whether the decision was made under the influence of being either actual or apprehended bias.

As discussed in this article, the main goal of the rule of Natural Justice is to ensure that the government decision-makers have made a decision fairly and impartially. The hearing rule will allow both the decision-maker and the affected person to be aware of the case and allow presenting and responding to their side of the case. Simultaneously, the rule of bias will ensure that the decision-maker is accountable to always make a decision impartial and unbiased, which will also protect the affected person and help maintain the higher integrity of the decision maker’s profession. Ultimately the rule of Natural Justice will protect the rights, interests and, in a given instance, legitimate expectation of a person who could be affected by a decision made. Thus, the rule of Natural Justice is the protector of fairness in decision making.

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