The Unfolding Purpose of Fairness
| Published date | 01 December 2017 |
| DOI | 10.22145/flr.45.4.8 |
| Date | 01 December 2017 |
| Subject Matter | Article |
THE UNFOLDING PURPOSE OF FAIRNESS
Matthew Groves*
ABSTRACT
The duty to observe the requirements of procedural fairness is well settled in Australian
administrative law. So too i s the variable content of that duty and the possibility that it
may be limited or excluded by legislation expressed in suitably clear terms. One key
aspect of fairness that is not yet clear is its purpose. Why do courts require those who
exercise public or official power to act fairly? The question cann ot be fully answered by
reliance on legislative intent or reference to the common law because recourse to one or
both of these p ossible sources of the duty to act fairly does not necessarily answe r why
that duty is drawn from the common law or implied as part of statutory interpretation.
This article examines recent steps by courts a nd commentators that suggest an
exploration of the purpose of fairness may be beginning to occur.
I INTRODUCTION
The scope and content of the duty to act fairly was a central concern of Austr alian
judicial review for many decades. Disputes about fairness still abound but now rarely
raise important doctrinal questions. That does not mean fairness is less important in
administrative decision-making or its review by the courts. It remains the best k nown
and probably most commonly claimed ground of review.
1
But most of the cases involve
the application of largely settled principles governing fairness to new legislati on or
novel situations. This aspect of the cases is perhaps inevitable given that so many
historical questions about the doctrine, such as the basis and scope of the duty to act
fairly, or whether it can be excluded by legislation, have been resolved by the High
Court. It is therefore not surprising that courts no w seem to mostly apply, clarify and
occasionally finesse those principles. This article takes the view that new questions about
the purpose and scope of the duty to act fairly will arise and provoke further
* Professor of Public Law, Law School, La Trobe University.
1
Though hard empirical evidence to this effect is not readily available. The most recent
detailed statistical survey of judicial review claims in Australia did not provide detail about
the different grounds claimed. See Administrative Review Council, ‘Judicial Review in
Australia—A Consultation Paper’ (Consultation Paper, 2011) ch 3. The annual reports and
related statistical information provided by superior courts that conduct a significant amount
of judicial review work in Australia, such as the Federal Court of Australia and the Supreme
Courts of Victoria and New South Wales, also do not contain detail about the breakdown of
grounds.
654 Federal Law Review Volume 45
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developments in the reach of judicial review, and will explore how the supervisory
powers of the courts can maintai n a sufficient grip over the nimble behavio ur of the
modern executive government.
The article first explains the doctrinal compromise reached by the High Court about
the basis of the duty to act fairly, which is notable for both t he issues it resolves and the
questions it raised. This section will explain how cases settling the foundation of fairness,
its status as a fundamental right and accepting its p ossible exclusion all reveal little
directly about the apparent purpose of fairness.
2
The second half of the article examines
whether the doctrinal prin ciples examined in the first part reveal anything about the
normative purpose of fairness. The orthodox position in Australian judicial review
doctrine disclaims any direct role for matters of substantive fairness.
3
This article
proceeds on the assumption that this position is a fiction maintained largely to ensure
cordial constitutional relations between the different arms of government. It will be
argued that more open judicial analysis of the moral or normative basis of fairness is
inevitable and would be welcomed.
II THE MODERN EVOLUTION OF FAIRNESS
The modern evolution of the principles governing fairness show how the scope of the
duty to act fairly has expanded and the re quirements of fairness have become more
stringent, yet they convey no apparent explanation as to why these changes have
occurred. Natural justice has existed within the common law for centuries but was only
labelled a fundamental right of the common law at the start of this decade. For almost
two centurie s, perhaps lon ger, the doctrine was invoked by the courts as a means to
supplement legislation and thereby limit the discretionary powers of officials. Natural
justice has long links to natural law but the doctrine as we know it—the twin pillars of
the hearing rule and the rule against bias—crystallised in the early 17 th century.
4
Influential early decisions, such as Boswell’s case
5
and Bagg’s case,
6
upheld the basic
requirement of the hearing rule—that people should not be condemned without some
sort hearing, notice of the allegations against them and chance to put their case. These
cases reflect a concern to control the public powers largely exercised by the small group
of public officials closely associated with the monarch and the executive government.
2
Lingering questions may remain about whether the better term is ‘natural justice’ or
‘procedural fairness’. Mason J suggested the latter ‘more aptly conveys the flexible obligation
to adopt fair procedures w hich are appropriate and adapted to the circumstances of the
particular case’: Kioa v West (1985) 159 CLR 550, 585 (‘Kioa’). I treat the two terms as
interchangeable but accept that some subtle differences may remain between them, as
explained in Alan Robertson, ‘Natural Justice of Procedural Fairness?’ (2015) 23 Australian
Journal of Administrative Law 155.
3
A position that can largely be traced to the influential judgment of Brennan J in A-G (NSW) v
Quin (1990) 170 CLR 1, 35–8.
4
The early common law evolution of these rules is explained in Harry Woolf, Jeffrey Jowell,
Andrew Le Sueur and Catherine Don nelly, De Smiths’ Judicial Review (Sweet & Maxwell, 8th
ed, 2013) 346–51. Their adoption in Australia is traced in Ian Holloway, Natural Justice and the
High Court of Australia: A Study in Common Law Constitutionalism (Ashgate, 2002) 11–22.
5
(1606) 6 Co Rep 48B; 77 ER 326.
6
(1615) 11 Co Rep 95b; 77 ER 1271.
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