The Privy Council, Natural Justice and Certiorari
| Author | Garth Nettheim |
| Date | 01 June 1967 |
| DOI | 10.1177/0067205X6700200203 |
| Published date | 01 June 1967 |
| Subject Matter | Article |
THE
PRIVY COUNCIL, NATURAL JUSTICE
AND CERTIORARI
By
GARTH
NETTHEIM*
,Natural
justice'
is
one
of
the key concepts in our legal system. The
concept has been employed to ensure fair adjudication, not only by
courts in the strict sense,
but
also by avast range
of
administrative
tribunals, bodies and officials that have power to affect the rights
of
individuals.
,Natural justice', to English and Australian lawyers, comprises two
basic rules: the right to be heard (audi alterarn partern, the hearing rule)
and the principle
of
fairness or impartiality
(nerno
debet esse judex
in
sua propria causa, the bias rule). These are 'the essential characteristics
of
what
is
often called natural justice. They are the twin pillars supporting
it
'.1
That no man
is
to be judged unheard was aprecept known to the
Greeks, inscribed in ancient times upon images in places where
justice was administered, proclaimed in Seneca's Medea, enshrined
in the scriptures, mentioned by St. Augustine, embodied in Germanic
and other proverbs, ascribed in the Year Books to the law
of
nature,
asserted by Coke to be aprinciple
of
divine justice, and traced by
an
eighteenth-century judge to the events in the Garden
of
Eden.
The historical and philosophical foundations
of
the English concept
of
"natural "justice may be insecure; it
is
not the less worthy
of
preservation.2
Professor de Smith continues:
'The
audi alteram partern principle
as an implied common-law requirement
of
administrative procedure
has lately shown signs
of
debility.'3
But'
the time has not yet arrived
to think
of
pronouncing obsequies or writing obituary notices. The
comatose must not be assumed to be moribund
'.4
The hopeful note in this diagnosis now appears to have been fully
justified, and the hearing rule
is
undergoing anotable recovery. But,
before tracing the process
of
convalescence into the Privy Council, it
is
worth asking what had happened to this fundamental concept to
provoke such utterances.
To alarge extent, the recent decline
of
natural justice is intertwined
with the similar decline
of
one
of
the prerogative writs, certiorari. This
*LL.B. (Sydney), A.M. (Tufts), Lecturer in Law, University
of
Sydney.
1Kanda
v.
Government
of
Malaya [1962] A.C. 322,
337
per Lord Denning.
2de Smith, Judicial Review
of
Administrative Action (1959) 102-103.
3Ibid.
122.
4Ibid.
136.
215
216
Federal Law Review [VOLUME 2
ancient remedy had received anew lease
of
life in the nineteenth century
with its employment as aprocedure to review awide range
of
administra-
tive decisions and actions.
For
this purpose it could issue on the grounds
of
excess
of
jurisdiction, error
of
law on the face
of
the record, and fraud,
as well as on the ground
of
breach
of
the rules
of
natural justice. Thus,
until well into the twentieth century, certiorari was one
of
the major
weapons in the hands
of
the courts against excess or abuse
of
administra-
tive power.
There
is
nothing more important, to my mind, than that the vast
number
of
tribunals now in being should be subject to the supervision
of
the Queen's courts. This can only be done
if
the remedy by
certiorari
is
maintained in the full scope which the great judges
of
the past gave to
it..
. . When there
is
no right
of
appeal, this historic
remedy has still avaluable part to play:
or
at
any rate, it should
have,
if
we
wish any longer to ensure that the rights
of
the people
are determined according to law.5
And yet Lord Denning himself has also been inclined to despair
at
the limitations with which certiorari has become hedged about, and to
espouse the cause
of
the action for adeclaration in its stead.6But even
the action for adeclaration, for all its advantages, could not overcome
the excessive restrictions on the scope
of
the hearing rule.
Thus an important concept and amajor remedy in public law were
both in peril. Salvation was achieved for English courts in
1963,
by the
decision
of
the House
of
Lords in Ridge
v.
Baldwin.7But Australian
courts have continued to be bound by the restrictive approach taken
by the Privy Council in the
1950
decision, Nakkuda
Ali
v.
Jayaratne.·
It
is in this setting
that
the recent decision
of
the Privy Council in
Durayappah
v.
Fernando9assumes major importance in Australian
public law.
Conflicts between decisions
of
the House
of
Lords and decisions
of
the Privy Council are fortunately rare. The proper resolution
of
such
conflicts
is
much clearer now, since the High Court's declaration
of
judicial independence from the House
of
Lords in Parker
v.
The
Queen,10
as extended to State courts in Skelton
v.
Collins." The House
of
Lords'
5Baldwin &Francis
Ltd
v.
Patents Appeal Tribunal [1959] A.C. 663, 697 per Lord
Denning.
6Barnard
v.
National Dock Labour Board [1953] 2Q.B. 18, 41;
Pyx
Granite
Co.
Ltd
v.
Ministry
of
Housing and Local Government [1958] 1Q.B. 554, 571; Freedom
Under
The Law (1949)
126.
7[1964] A.C. 40. Sir Carleton Allen describes this decision as 'the Magna Carta
of
natural
justice':
Law and Orders (3rd ed. 1965) 242.
8[1951] A.C. 66.
9[1967] 2All E.R. 152; [1967] 3W.L.R. 289.
'0
(1963)
111
C.L.R. 610, 632-633.
11
(1966)
39
A.L.J.R. 480.
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