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Natural justice or procedural fairness is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. The concept is very closely related to the principle of natural law (Latin: jus naturale) which has been applied as a philosophical and practical principle in the law in several common law jurisdictions, particularly the UK and Australia.[1][2]

In common law legal systems the term natural justice refers to two specific legal principles.

Contents

Background

According to Roman law certain basic legal principles are required by nature, or so obvious that they should be applied universally without needing to be enacted into law by a legislator. The assertion in the United States' Declaration of Independence, "We hold these truths to be self-evident," expresses some of this sentiment. The rules or principles of natural justice are now regularly applied by the courts in both common law and civil law jurisdictions. Natural justice operates on the principles that man is basically good, that a person of good intent should not be harmed, and one should treat others as one would like to be treated.[3]

Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:

  • A Right to Advanced Warning. Contractual obligations depriving individuals of their Rights cannot be imposed retrospectively.
  • A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges).
  • A person making a decision should declare any personal interest they may have in the proceedings.
  • A person who makes a decision should be unbiased and act in good faith. He or she therefore cannot be one of the parties in the case, or have an interest in the outcome. This is expressed in the Latin maxim, nemo iudex in causa sua: "no man is permitted to be judge in his own cause".
  • Proceedings should be conducted so they are fair to all the parties - expressed in the Latin maxim audi alteram partem: "let the other side be heard".
  • Each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party.
  • A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations.
  • Justice should be seen to be done. If the community is satisfied that justice has been done, they will continue to place their faith in the courts.[4]

Notably, natural justice is binding upon both public and private entities, such as trade unions.[5] In contrast, the U.S. concept of due process is strictly limited to decisions made by governmental entities, although the U.S. state of California has developed a doctrine of fair procedure which is binding upon certain types of private entities in that state.

Natural justice in Australia

Kioa v West established a requirement for decision makers required to apply natural justice. It was expanded on in subsequent cases such as Minister of Immigration and Ethnic Affairs v Teoh.

There are considered to be 2 major rules: the hearing rule and the rule against bias. There are no fixed rules, however: what is appropriate depends on the circumstances: Kioa v West.

See also

Notes and references

Lane, W.B. and Young, S. Administrative Law in Australia, 2008. Thomson Lawbook Co, Sydney.

  1. ^ "See, e.g.","Kioa v West"([1]),
  2. ^ See, e.g., "Natural Justice and Procedural Fairness" (.pdf file)
  3. ^ Michael Brogan,Wayne Gleeson, Tony Foley, Veronica Siow and Therese Ejsak, Heinemann Legal Studies p12-13
  4. ^ Ken Binmore, Natural Justice, Oxford University Press, 2005
  5. ^ Abbott v. Sullivan [1952] 1 K.B. 189.
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