 |
||||||||
 |
 |
 |
 |
 |
 |
 |
||
 |
||||||||
Document
Letter from WBDE Procedural Fairness Panel to key players
Procedural Fairness and Natural Justice - Some references and information
1.
In Twist v Randwich Municipal Council (1976) Barwick C J stated: "The common rule that a statutory authority having power to affect the rights of a person is bound to hear them before exercising the power is both fundamental and universal …
The effect of a breach of the hearing rule is as follows:
"The decision is invalid (void, rather than voidable) see Ridge v Baldwin (1964)
"Although the decision may ultimately be declared void by the court, the fact that it has been made still gives the court jurisdiction to hear an appeal against it (in the event of there being a statutory right of appeal)
Ref: Essential Administrative Law by Ian Ellis-Jones, lecturer Faculty of Law UTS Sydney.
**********************
2. In Hubbard Association of Scientologists International v Anderson and Just (No 2) (1972) VR577 579 Adam J delivered the judgement of the court (Adam, Little and Gowans JJ) and said:
If an act is void then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it, aside. It is automatically null and void, without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad.”
“You cannot put something on nothing and expect it to stay there. It will collapse.”
**********************
3. Ref: Administrative Law Commentary & Materials 2nd Ed, Douglas & Jones, Fed Press 1994.
3.a.Page 467
Chapter Sixteen THE RIGHT TO PROCEDURAL FAIRNESS:
General Principles
"The laws of God and man both give the party the opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam", says God, "where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat". And the same question was put to Eve also.
Lord Fortescue in R v Chancellor, etc, of Cambridge (1823) 1 Stra 557 cited by Byles J in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180.
3.b.Page 510
THE RIGHT TO PROCEDURAL FAIRNESS: Application
…
(g) The decision-maker
Para 3
"…In the case of report-makers, the position was once that the maker was not under a duty to afford procedural fairness where the report did not directly affect a person's legal rights. This is no longer the case. As noted above, the duty to afford procedural fairness is no longer conditioned upon rights being affected. A person whose reputation is affected is treated as having a sufficient interest to ground a claim to procedural fairness, [emphasis added] as is a person closely connected with one whose reputation is at stake. But what is the position where the report must be, or will be, considered by another authoritative body? In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (and below, Chapter 21), the High Court held that where a person's reputation might be adversely affected by a report, the maker of the report has a duty to afford procedural fairness, even where the report would be subject to subsequent consideration by a Parliamentary Committee…"