“Rules of natural justice are great assurances of justice and fairness ’’. Discuss the principles of natural justice.
Introduction
Natural justice is a way of making decision where no biasness is considered during making the decision. Basically, what it denotes is that specific procedural rights in the English legal system and the systems of other nations based on it. Moreover, it is similar to the American concepts of fair procedure and procedural due process, the latter having roots that to some degree parallel the origins of natural justice.
“Natural Law does not mean the law of the nature or jungle where lion eats the lamb and tiger eats the antelope but a law in which the lion and lamb lie down together and the tiger frisks the antelope.”
What we can say is that ‘procedural fairness’ and ‘natural justice’ are used interchangeably and refer to the common law duty on decision-makers to observe fair procedures when making certain decisions where the decision is not in the favor of a particular site due to biasness, but what it means is that Procedural fairness relates to the process of making decisions and not the merits of the decision itself where fairly making decision considering the facts. If we narrow it more down what we can say is that the opportunity to be heard by an impartial decision maker is at the heart of the rules of natural justice and procedural fairness. The rules of natural justice apply whenever the rights, property or legitimate expectations of an individual are affected by a decision. Natural justice is taking the decision based on the major 3 principles
1. Fair hearing rule
2. The bias rule
3. No evidence rule
People are more satisfy as there are established rules of natural justice which let them have a great assurance of justice and fairness in making decision by the law.
Principles of natural justice
The opportunity to be heard by an impartial decision maker is at the heart of the rules of natural justice and procedural fairness. The rules of natural justice apply whenever the rights, property or legitimate expectations of an individual are affected by a decision.
Decisions in the context of the management of alleged unsatisfactory performance are administrative decisions that may clearly affect the rights or legitimate expectations of Public Service employees and one must therefore apply the rules of natural justice and procedural fairness. Satisfying the rules of natural justice and procedural fairness will vary according to the specific circumstances. There are however important basic principles that apply to every situation: there are three basic principles employers must follow/adhere to: these are commonly known as the hearing rule; the bias rule and the no evidence rule (1). Just because the principles of natural justice are there, as a result fair judgment is made based on the principles. In administering justice, courts are required to uphold principles of procedural fairness or natural justice. These principles include ensuring hearings are conducted in open court, are fair and there is no bias, either actual or apprehended, by the judicial officer hearing the proceedings (2).
1. Hr workforce development quality program and services.pdf p.01
2. ‘Natural justice by the courts: some recent cases pdf p.1
The hearing rule
This rule has different way of solving problem. This is one of the major principles which need to be followed in terms of making decision. Here this hearing rule have demands that a decision maker must be give an opportunity to a person whose interests may be adversely affected by their decision the opportunity to be heard(3). This means the person who is actually blamed in disciplinary proceedings, must be provided with as much detail as possible about the allegations against him/her and the factual basis for those allegations and be afforded the opportunity to respond(4). Where documentary evidence supports allegations (providing it is not subject to privilege – such as legal advice) that must generally be provided to the employee in advance of a hearing. This means information is usually provided to the decision maker in the form of oral submissions, documentary evidence and questioning of the person (obviously the answers and submissions from him and/or his representatives thereto) (5). Note that this aspect of natural justice can be satisfied in a number of ways. If, for some reason, the employer is not able to question an employee allegations may be put to the employee in writing and the employee given a reasonable opportunity to respond either orally or in writing(6).
3.This right is expressed as the audi alteram partem rule. See “Hear the other side”. Flick G (1984) Natural Justice – Principles and Practical Application – second edition, Butterworths, Sydney, p 26. The other limb of natural justice is expressed as nemo debet esse judex in propria causa – “No one ought to be a judge in his/her own cause”
4. This right is expressed as the audi alteram partem rule. See “Hear the other side”. Flick G (1984) Natural Justice – Principles and Practical Application – second edition, Butterworths, Sydney, p 26. The other limb of natural justice is expressed as nemo debet esse judex in propria causa – “No one ought to be a judge in his/her own cause”
5. for example, the employee claims to be too ill to participate in an interview or attend at an inquiry.
6. for example, the employee claims to be too ill to participate in an interview or attend at an inquiry.
The bias rule
In this major principle rule the decision maker need to be bias free. In making decision they cannot pick a site and make the decision. This bias rule has demands that the decision maker should be disinterested and/or unbiased in the matter to be decided. In terms of Justice should not only be done but be seen to be done. Although when fair minded people would reasonably apprehend/suspect the decision maker has prejudged the matter, the rule is breached (often referred to as ‘a reasonable apprehension of biases) (7). The application of the bias rule is most easily established when the person who is the position of accuser also is the decision maker or participates in the investigation/decision or gives advice throughout the course of the matter. This is not a hard and fast rule and will depend to a large extent on the circumstances of a matter (8).
Fairness
While making the decision this will be made on the basis of a set of established rules that are known. For example, if there were no laws about smoking at work, it would be unfair for a person who smoked at work to be punished by the legal system (9).
7. This right is expressed as the audi alteram partem rule. See “Hear the other side”. Flick G (1984) Natural Justice – Principles and Practical Application – second edition, Butterworths, Sydney, p 26. The other limb of natural justice is expressed as nemo debet esse judex in propria causa – “No one ought to be a judge in his/her own cause”.
8. This right is expressed as the audi alteram partem rule. See “Hear the other side”. Flick G (1984) Natural Justice – Principles and Practical Application – second edition, Butterworths, Sydney, p 26. The other limb of natural justice is expressed as nemo debet esse judex in propria causa – “No one ought to be a judge in his/her own cause”.
9. Hot Topics No 71, LIAC, 2009. See page 6
Transparency
What happens in the legal system can be seen and understood by the general public, that courts and tribunals are open to the public, rather than their decisions being made behind closed doors (10).
Equality before the law
In this principle each and every person should be treated in the same way by the legal system no matter who they are. As like the legal system must not make a different decision because a person is richer or poorer than another person, or because a person comes from another country. This means that all the people should be able to get the help of the law and the legal system equally. It also means that the law applies equally to everyone (11). No person is above the law, no matter what position they hold in society.
The no evidence rule
The no evidence rule means, in essence, that the decision that is eventually made must be based on logical evidence (proven on the balance of probabilities – that is, the alleged behavior is more likely to have occurred than not).
It is also important that in making decisions, administrative decision makers:
10. “Natural justice: procedural fairness” by Robert Lindsay (2011) 38 (1) Brief 10-15.
11. “Natural justice: procedural fairness” by Robert Lindsay (2011) 38 (1) Brief 10-15.
· Take into account relevant considerations;
· Do not take into account irrelevant considerations;
· Act for a proper purpose; and
· That the decision is not unreasonable in the sense that no reasonable are decision maker could have reached such a decision.
An administrative decision maker is under a dual duty; to take account of relevant considerations and not take into account irrelevant ones. What is relevant or irrelevant will depend on the instrument (legislation or policy) conferring the power on the decision maker (12). It is impossible to be precise and attempt to list all possible relevant and irrelevant considerations. However, decision makers can be guided by the context of the relevant employment legislation. Matters relevant to employment will almost always be relevant; such as the nature and seriousness of the alleged behavior under examination; the relative seniority of the employee; the procedure adopted by the employer in investigating and inquiring into allegations; the evidence gathered in an investigation; the employee’s responses to the allegations and the employee’s employment history. Matters such as the employee’s political beliefs would not only be irrelevant considerations but if considered would amount to discrimination under relevant legislation (13).
12. http://www.lawhandbook.org.au/handbook/ch21s02s06.php
13. http://guides.sl.nsw.gov.au/content.php?pid=293537&sid=2436829
An administrative decision maker/authority may not exercise their power unreasonably. Courts may interfere with an administrative decision if it was so unreasonable that no reasonable decision maker could have come to it in the circumstances. Proving unreasonableness is a difficult burden. Natural justice and procedural fairness are common law concepts, as such they be varied by legislation. Indeed the Public Sector Act has varied the common law with respect to the termination of Public Servants’ employment. As stated, what satisfies the rules of natural justice and procedural fairness will depend on the facts and circumstances of each individual case.
Conclusion
Giving a judgment in a case is a difficult task for the judge. Judging is not an easy task to do. Cases arises differently in different situation not all the cases are alike. So the judge has to be careful enough to give the decision of the case. There are certain rules of natural justice while being a judge of a case that a judge needs to follow. This rule of natural justice is an assurance to the people that the judgment will be a fair one due to those rules. This natural justice rules gives the case a standard that the decision will be a fair one which is an assurance to the people.
There are few principles of natural justice that we need to consider while judging these are of mainly of three types. 1. Fair hearing rule 2.The bias rule 3.No evidence rule
These are the major principles that a decision maker or a judge needs to follow before making a decision of any case. In the fair hearing rule the person must be given an opportunity so that the person can bring out their claims which may affect the decision of the decision maker of course (14). This rule gives the person a chance so that the person can prove that he or she may not be guilty of what they are claim against.
The other rule name as the bias rule which is gives a great assurance to the people that the decision is bias free. In this particular type of principle the decision maker is biased free. They will not make a decision based on which the decision will favor the dear or near one (15).
14. http://www.state.il.us/agency/idol/laws/law120.htm
15. www.studentatlaw.com › Administrative Law› Sydney Uni
The last principle that a decision maker takes based on the no evidence rule. In this rule the decision has to be based on proof. The decision cannot be taken on the basis of probability.
References
1. http://go.microsoft.com/fwlink/?LinkId=121315
2. guides.sl.nsw.gov.au/content.php?pid=293537&sid=2436829
3.http://www.decd.sa.gov.au/docs/documents/1/NaturalJusticeandProcedur.pdf
4.http://www.decd.sa.gov.au/docs/documents/1/NaturalJusticeandProcedur.pdf
7. http://en.wikipedia.org/wiki/Natural_justice
8. http://www.lawhandbook.org.au/handbook/ch21s02s06.php
9. www.health.gov.au › … › Aged care › Publications
10. DPP (NSW) v Elskaf[2012] NSWSC 21
11. www.ombudsman.wa.gov.au/…/Procedural-fairness-guidelines.pdf
12. www.lec.lawlink.nsw.gov.au/…/preston_17may12_annual_lecconfer…
13. www.decd.sa.gov.au/docs/documents/…/NaturalJusticeandProcedur.p…
14. www.lawnotes.in/Principles_of_Natural_Justice
15. www.apvma.gov.au/about/foi/operational/supporting/…/fs_nat_jus.d…
16. www.nuigalway.ie/hr/documents/natural_justice.pdf
17. ^ Frederick F. Shauer (1976), “English Natural Justice and American Due Process: An Analytical Comparison”, William and Mary Law Review 18 (1): 47–72 at 47.
18. ^ Arthur L. Goodhart (1953) (PDF), English Law and the Moral Law, London: Stevens, p. 65, OCLC 1812603, cited in De Smith’s Judicial Review, p. 321
19. Kioa v Minister for Immigration and Ethnic Affairs and Another (1985) 62 ALR 321 (Mason J: 326)
20.www.hcmadras.tn.nic.in/../Principles%20of%20Natural%20Justice%.