Natural Justice 1 - Important Characteristics

INTRODUCTION

• NJ arises when statute is silent on right to be heard (RTBH).
• Creation of common law: when statute silent, common law supply for omission of Legislature

# Cooper v Wandsworth Board of Works

Important rules: 

1. Right to fair hearing only arise when public authority exercise power which has potential to affect right and interest of person
2. Universal application
3. Silence of statute =/= RTBH denied, cos only in such cases RTfairH impliedly arises 

NJ CAN BE DENIED BY STATUTE

1. Expressly - S59 Immigration Act - exclusion of RTBH
2. Impliedly - Furnell v Whangarei High School Board - when other rights are detailed, except RTBH

NJ SHALL BE PRE-DECISIONAL

# Maneka Gandhi v Union of India

Wanted to leave India, passport confiscated. Court held that if pre-decisional hearing is not possible, then at least a post-decisional hearing should be given, but this cannot substitute the role of pre-DH.

NJ IS A FLEXIBLE CONCEPT

Merdeka University v GOM - Flexible, vary according to circumstances

Lloyd v McMahon - RoNJ not engraved on tablets of stone

SK Kapoor v Jagmohan - minimal NJ is possible, even when immediate action needed

Swadeshi Cotton Mills v Union of India - Urgency may not always exclude NJ.

TWO PILLARS OF NJ

1. Audi alteram partem (AAP) - RTBH

2. Nemo judex in causa sua - Rule against bias

WEAKNESS OF NJ

1. Creation of CL, can be denied by Statute

2. Only two components

EFFECTIVENESS OF NJ

1. Admin action (AA) can challenge in court

2. Get remedy (certiorari/declaration)

IMPORTANCE OF NJ

1. Administration

- Know all facts before make decision

- Make fair decision

- Prevent mistakes

- Complete and reasonable record

2. Individual

- Affect decision by AB

- Protect individual right

- Prevent arbitrary