Why Do We Have Rules of Procedural Fairness?

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Supreme Court of Victoria/University of Melbourne colloquium
4 September 2015 

James Edelman 

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Introduction

This paper should be read together with the companion paper delivered by Robertson J. In his paper, Robertson J explores the operation, history, and tradition of natural justice and procedural fairness in Australian law. My paper seeks to draw a distinction in theory between two concepts which, as Robertson J shows, cannot be neatly described as “procedural fairness” or “natural justice” without some inconsistency with judicial use of those terms.

The essential point in this paper is that there is a substantial difference between concepts that might be described as "procedural fairness" and "natural justice". Often the two concepts are described interchangeably. But, however described, there are two different concepts in play in this area. One concept involves the relevant rules to be applied. The other involves the underlying principles that shape and explain the contours of the rules. A convenient language to adopt in this area is to think of the procedural fairness as a description of the relevant rules and natural justice as the basic underlying principle of procedural fairness. On this understanding, natural justice is not a rule which is capable of direct application. It involves principles which inform the contours of the rules. Procedural fairness embodies two different rules. One of them is the rule against bias; apprehended and actual bias. The other is the right to a fair hearing. Both have been expressed in Latin: nemo iudex in causa sua (no-one should be a judge in his own cause) and audi alteram partem (let the other side be heard).

Both rules of procedural fairness are expressed at a high level of generality. What is required by a fair hearing will vary from case to case. For instance, is an oral hearing required in a particular case?^[1] Should the person who gave an oral hearing be the same person who adjudicates?^[2] Different views can be taken about the content of the broadly worded fair hearing rule. Understanding the underlying principles permits a transparent enunciation of the content of the particular rule.

In some cases, the relevant empowering statute will require the application of particular principles. For instance, legislation such as that concerned with liquor control commonly requires a tribunal to act according to the public interest and to consider questions of public benefit. That might invite a consideration of whether the content of the rules of procedural fairness are consistent with utilitarian notions of public benefit. But, more often, the statute or source of authority is silent upon the principles to be applied in determining the content of the rules of procedural fairness. It is that situation with which this paper is concerned.

This paper is divided into three parts.

First, I will consider briefly the history, philosophy and religious traditions of natural justice. The purpose of this exploration is to illustrate a long established historical use of the concept of natural justice as an underlying principle rather than an description of any rules.

Secondly, I will consider ‘natural justice’ as an underlying principle in the context of an understanding of procedural fairness rules. I use the label ‘natural justice’ in this section in the manner consistent with its ancient roots in natural law. I will explain that, in this sense, natural justice is not a positive rule of law but is a guiding principle which informs numerous different rules of law, relevantly in this context the rules of procedural fairness. This principle of natural justice competes with the claim that other principles have to inform the rules of procedural fairness. The chief competitor is utilitarianism.

Finally, I will conclude with examples of practical differences between treating rules of procedural fairness as based upon of natural justice and treating those rules as based upon utilitarian principles.

My purpose in this paper is not to advocate for natural justice as the conception which should underlie the rules of procedural fairness. Nor is it to deprecate the arguments of those who advocate for a utilitarian principle. Instead, my purpose to suggest that engaging with these underlying principles makes transparent the basis upon which we can determine the content and contours of rules of procedural fairness such as the hearing rule and the bias rule.

1. The history, philosophy and religious traditions of natural justice

History of judicial review and natural justice

There is a view, very commonly held, that the origins of modern judicial review, and rules of natural justice, are a golden period in the 1960's to 1980's. Those that hold this view point to English cases like Ridge v Baldwin^[3]or Anisminic v Foreign Compensation Commission^[4] or, in Australia cases like Kioa v West.^[5]Last year, in the second reading speech of the Criminal Justice and Courts Bill in England,^[6] the Minister of Justice, Lord Faulks, a Queen's Counsel and practitioner of public law for nearly two decades, and head of 1 Chancery Lane, said in opening remarks that 'judicial review, as we know, started in the 1970s'. The Bill contained within it a Henry VIII clause permitting the Lord Chancellor, or Secretary of State, by executive fiat, to amend, repeal or revoke any earlier legislation. One of the amendments made by Bill became was to restrict judicial review. This might have been a strong hint that the premise upon which the Bill was enacted – that it was amending a principle of law which was only a half a century old - was an error.

Professor Paul Craig's research has shown the prolific nature of prerogative writs from the 16th century. From the mid-16th century until the mid-19th century there were around 20,000 challenges mostly to decisions of Justices of the Peace and Commissioners. These were claims for writs of certiorari, prohibition, and mandamus. If we exclude from account the number of immigration applications today (which were not really an issue in the period prior to the 20th century) and the size of the population (the United Kingdom was 5 million people at the turn of the 18th century), there were vastly more applications for judicial review per head of population in England then than there are now. The principles of judicial review, including rules of procedural fairness, might go back much further than the 16th century. The principles can be seen in the oldest example of Roman law quasi delict: iudex qui litem suam fecit (literally: the judge who makes the case his own). The judge was, according to Gaius, liable for 'a penalty of as much as seems right in the affair'. Originally, this quasi delict only lay against the judge for instances of fraud. But there is a developed view amongst some Roman scholars that this quasi-delict expanded into cases where the judge decided the case incorrectly.^[7] I think that this is a misunderstanding of the relevant Digest text 50.13.6. The concept is one of 'hearing his own case' it is not one of deciding the case incorrectly.

From the time of Roman law, natural justice has sometimes been recognised as a principle underlying not merely procedural fairness but many broader conceptions of law. In the Roman law of the second century, the philosophy of Ulpian, extended further still than his contemporary Paul, who said that “there is a type of law, natural law, that is always good and equitable”. Ulpian went further and said that the “lawyer is concerned with the techniques by which what is good and equitable can be given practical effect”.^[8] A comment by Papinian in the Digest ascribed to the praetor a power to “aid, supplement, and correct” the ius civile,^[9] although the function of “correcting” the civil law was likely to have been extremely circumscribed.^[10]

The status of natural justice was arguably elevated beyond the conception as an underlying principle to become one of a rule of law in a decision in 1610 that could have caused a revolution in English law. The passage arose in a decision of Sir Edward Coke in Dr Bonham's Case^[11] that the College of Physicans could not act as both the prosecutor of Dr Bonham as well as the judge. In one passage, Coke wrote that

in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void

One interpretation of this passage suggests that the common law can alter the meaning to be given to an Act of Parliament. This interpretation was not invented by Coke. Christopher St German in Doctor and Student^[12] gave an example of a statute of Edw 3 in the 14th year of his reign (around 1340) which provided that 'no man, upon pain of imprisonment, should give alms to any valiant beggar, that is well able to labour'. He says that if a man meets with a beggar who is wearing such light clothes and in weather so cold that if he attempts to journey into town he will die, then the man who gives the beggar some clothes 'shall be excused by the said statute, by such an exception of the law of reason'. Over the centuries there have been examples of this exercise, described by Blackstone, and deprecated by Bentham, as “the equity of the statute”. On one understanding of the “equity of the statute” it is no more than a rule of construction such as the “principle of legality” for interpretation of statutes. But, on another view, the approach is more radical and it suggests the common law reaching a different result from that which has been determined to be the meaning of the statute.

Professor Nelson has tried to trace the influence of the passage of Coke’s from Dr Bonham’s case, through a series of events, to the famous decision of Marshall CJ in Marbury v Madison which became the foundation for judicial review.^[13] However, the links might be tenuous, the passage might not even have been included in Coke’s initial judgment, and Coke’s later views were not consistent with an understanding of this passage that courts have the power to adjudge legislation to be void. After Dr Bonham's case James I demanded an explanation for the judgment. Coke’s later decisions softened after his demotion from Chief Justice of Common Pleas to King's Bench, and the more radical conception of Dr Bonham's case was overtaken by Blackstone’s and Dicey's orthodox conception of parliamentary sovereignty.

Despite the strength of the tradition of parliamentary sovereignty, a weak version of Coke’s thesis, and a possible role for natural justice as a positive rule of law, has been enunciated by some judges. In the challenge to the Hunting Act 2004 in R (Jackson) v Attorney General,^[14] Lord Steyn, Lord Hope and Baroness Hale all treated the rule of parliamentary sovereignty as one of common law. Lord Steyn suggested that since judges created this rule of common law they might, in exceptional circumstances (such as an attempt to abolish judicial review), modify it. The view of Lord Steyn contrasts with that of Lord Bingham who explained, extrajudicially, that if parliamentary sovereignty were a mere rule of common law then it could be amended or abolished by statute. Lord Bingham’s point, relying heavily upon work by Professor Goldsworthy, is that the judges “did not, by themselves, establish the principle and they cannot, by themselves, change it”.^[15] A similar point was made in Australia by Dawson J in Kable v Director of Public Prosecutions (NSW).^[16]

Philosophical and religious traditions of natural justice

At the start of Justice in Robes,^[17] Professor Dworkin tells the story of a young Learned Hand for whom Dworkin later clerked (prior to clerking for Frankfurter J on the United States Supreme Court). Hand's story is that one morning he was given a lift in the carriage of Oliver Wendell Holmes. As he alighted from the carriage, Hand said to Holmes: 'do justice, Justice'. Holmes commanded the carriage to stop. He turned the carriage around, went back and said to Hand, 'That's not my job'. Then Holmes went back to his job, apparently of not doing justice. The point that Holmes may have been making was that his job was not to perform ‘justice’ simpliciter but to perform justice according to underlying principle. Deuteronomy 16:20 uses the term tzedek twice in the expression tzedek tzedek tirdof which translates as “Justice, justice you shall pursue”. The second use of the word is not redundant. It can be seen as a concept of justice being pursued by reference both to rules of law and principles of equity which guide those rules. As lawyers, and as judges who give an oath or affirmation, we speak of justice according to law. It is neither a pure sense of equity based upon a philosophy of fairness nor is it ritual application of rules.

My point in this presentation is that the 'hearing rule' and the 'bias rule' are rules of procedural fairness but the boundaries and application of those fluid rules are governed by underlying principles. One view of those underlying principles is that they are principles of natural justice in this sense. This raises the question of how we are to discern those principles of justice that are ‘natural’. Bentham said in 1843 that '[n]atural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts'.^[18] Ultimately, the only potentially satisfactory answer to this question is that natural principles can only be deduced from the world around us. As I will explain, the natural principle upon which the rules of procedural fairness are based has been suggested to be the dignity of the individual.

The philosophy of natural justice has strong roots in a religious tradition. Although the natural law conception of Locke and Kant - and their conception of the social contract - is flawed, it is no coincidence that Locke and Kant, as natural lawyers, were ardent theists. In contrast, Nietzsche's atheism was, in large part, because he rejected liberalism. Nietzsche realised that modern liberalism was the secular translation of religious traditions. He saw the chief sources of liberalism as Jewish and Christian theism which is why he was so hostile to these religions. For religious scholars, there are a number of occasions in the Old Testament that support a principle of natural justice. In Genesis 3:11, God asks Adam: 'Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?' Later, in Genesis 4:9 when God confronts Cain, he asks him ‘Where is Abel your brother?’

Some judges of the 17th and 18th centuries referred to Genesis 3:11 for the theological puzzle arising from it: why would the omniscient God ask this question to which He knew the answer? One answer, as Fortescue J observed in Dr Bentley's famous mandamus action against the University of Cambridge, is 'natural' justice. The point is that despite God's omniscience '[He] did not pass sentence upon Adam, before he was called upon to make his defence'.^[19]

2. Natural justice and competing philosophical conceptions of procedural fairness

At the start of The Idea of Justice, Amartya Sen posits an example of a wooden flute and three children who want to play with it.^[20] The first child made the flute from his wood. The second child is the only one who can play the flute. And the third child is the only one who has no other toys. Who, in justice, should be given the flute? In his book, Sen does not answer the question. For him, the answer, the idea of justice, is not a natural concept but is one which depends on a particular philosophy such as the value that one puts on the pursuit of human satisfaction, the need for removal of poverty, or the entitlement to enjoy the fruits of a person's labour. The natural justice thesis, however, posits a natural answer to these questions based upon a single philosophy. In the example that Sen gives, the answer, described by the Romans as ‘natural’ has been accepted for at least 2,000 years by every developed legal system. It is one of the most basic examples of the application of specificatio (title to a new thing, using the maker’s materials, resides in the maker)given in Gaius’ Institutes and in Justinian’s Institutes.

Turning to the rules of procedural fairness, however, as Sen observes, there are philosophies other than natural justice that suggest different underlying principles.

(1) One rationale is perhaps the most commonly advanced. It is essentially a utilitarian rationale for procedural fairness. The rationale is that better procedure will be more likely to lead to a better result.

(2) A second rationale is that we have principles of procedural fairness because of the need for public acceptance of decision making. Here, the argument is that procedural fairness improves the community's acceptance of judicial decision making because they reflect societal values.

For natural lawyers in the religious tradition, the example from Genesis described above is used to explain why neither of these theories is adequate. God did not need to hear from Adam in order to improve the quality of the decision. Nor did God need to hear from Adam so that there would be greater public acceptance of the decision. More recently the Supreme Court of the United Kingdom has adopted an approach which favours a natural justice conception based upon dignity rather than a utilitarian conception.

In Osborn v The Parole Board^[21]the rationale enunciated by the Court of Appeal was utilitarian. Carnwath LJ (with whom Sedley and Moses LJJ agreed) said that 'the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision-maker'. On appeal to the United Kingdom Supreme Court, ^[22] Lord Reed (with whom the other Lords agreed) emphasised that the rationale for procedural fairness was not confined to better decision making. His Lordship said that natural justice requires a procedure that pays 'due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions'. In a recent paper, Professor Matthew Groves also engages with the suggestion that public acceptance of decision making might be the foundation of procedural fairness. He refers to the widely regarded measure of public acceptance: the poll. How could such a poll be taken into account to decide questions of a fair hearing? Who should commission the poll? Which people should it include? How should the questions be framed? Should the participants have a degree of background knowledge of the subject? Should the poll be conducted at a neutral time or at a time when the issue is one of public sensitivity? And how capable is a judge of interpreting the results of any poll?

There is another issue with seeing the hearing rule or the rule against bias as based only in the idea of public acceptance of decision making. The problem is that on one view concepts of procedural fairness might apply even if there could be no conceivable effect on the public. Consider, for example, the case of Guardian New Ltd v AB CD.^[23] That case concerned a ruling that (i) the entirety of the criminal trial of the defendants should be in private with the public and media excluded and the publication of reports of the trial by any person be permanently prohibited, and (ii) the names and identities of the defendants should be withheld from the public and publication of their names/identities in connection with the proceedings be permanently prohibited. That ruling was quashed by the Court of Appeal. But suppose that it had continued in effect. To make the example clearer suppose that additional measures had also been put in place under the Justice and Security Act 2013 (UK) which prohibited the defendant from being present or seeing or being made aware of the evidence of a key prosecution witness, including a prohibition on being given any reasons for decision concerning that witness. The government advocate would be required to sign a declaration under the Official Secrets Act concerning the evidence of the witness.

Now suppose that prior to the trial the judge perusing the papers realises that the key witness in the case, upon whose evidence the whole of the prosecution case will depend, is his or her spouse. If the rationale of the rules of procedural fairness is merely public acceptance of decision making then there could be no obligation for the judge to recuse himself or herself. No member of the public could realistically ever discover the fact of the case, the result of the case, nor the identity of any witness, or the relationship with the judge. If public acceptance were the test then there should be an obligation upon the judge to recuse himself or herself. I venture to suggest that any judge would still recuse himself or herself in these extreme circumstances.

In contrast with these two rationales, there is the rationale that the basis of procedural fairness is “natural justice”. But how do we know what justice is “natural”? What natural principles can we deduce from the world around us to determine the boundaries and scope for rules of procedural fairness? This question was confronted in Osborn by the United Kingdom Supreme Court in 2013. As I have said, the Court of Appeal had held that the basis for the rule was improving the quality of decision making. The United Kingdom instead placed the basis of the rule in the natural idea of the dignity of the individual.

Osborn involved three appeals heard concurrently by the Supreme Court. In Mr Osborn’s case the question was whether an oral parole hearing should have been held. Mr Osborn had been convicted in 2006 of putting people in fear of violence by harassment, and possession of an imitation firearm, when he brandished the imitation firearm at the home of his estranged wife. He received a sentence of six years imprisonment. The custodial element of which expired on 20 February 2009, when he was released on licence. He was placed under surveillance from the point of his leaving prison. He was then alleged to have breached conditions of his licence the same day and was returned to prison. His breach of conditions concerned an alleged failure by him to confine himself to an address approved by his supervising officer during the hours of a curfew. Mr Osborn said that the failure had been precipitated by a delay by the prison in releasing him so that surveillance could be put into place. His licence was revoked by the Secretary of State for Justice. He was then provided with a “pack” of documents for a hearing of his case before the parole board. The documents included concerns about his willingness to comply with licence conditions and his statement that he would obtain access to firearms within hours of release.

Mr Osborn’s parole application was considered on the papers. No recommendation for release was made in the written report. Mr Osborn was told that he was entitled to request an oral hearing. He did so by his lawyers. His lawyers pointed out that the panel had relied on information that had not previously been disclosed and they asked for witnesses to be present at the oral hearing including those who would confirm Mr Osborn’s account of why he was delayed after leaving prison. The request for an oral hearing was refused on the basis that the disputed facts were not central to the decision that had been made to refuse parole. Material that Mr Osborn had wanted to reply upon at the earlier hearing was also not considered when the review for an oral hearing was considered on the papers.

Lord Reed gave the judgment of the court. In Mr Booth's appeal, his Lordship held^[24] that there were several disputed facts which the "paper recall panel" treated as important and that in the circumstances of the case an oral hearing should have been held. Lord Reed rejected the argument of the Parole Board that an oral hearing would not have made any material difference. He emphasised that this did not matter (at [95]) because [i]f fairness requires an oral hearing, then a decision arrived at without such a hearing is unfair and cannot stand'. Lord Reed mentioned the passage from Genesis and described (at [7]) “the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result”.

The emphasis by Lord Reed upon feelings of resentment were part of his Lordships consideration that the basis of the rule of procedural fairness lies in the dignity of the individual. The concept is therefore one of human dignity as the foundational or “natural” reason of justice which shapes the content of the rules of procedural fairness. This is not a new idea. The concept of procedural fairness involves the manner in which a person’s rights and liberties are adjudicated.

Some judges have observed that the foundation of “equal and inalienable rights of all members of the human family” was described in the Universal Declaration of Human Rights as based upon “recognition of inherent dignity”.^[25] Actually, the concept of dignity as the underlying foundation for an individual’s rights is much, much older than the Universal Declaration of Human Rights. As Professor Ibbetson has observed, in the early Roman Empire, the jurists (probably Labeo) identified a single idea behind all of the different delicts. That idea was contumelia.^[26]Contumelia has been translated variously as ‘insult’ but it carries a stronger connotation in the Digest as disrespect or the denial of dignity. Although English law, unlike some Civilian jurisdictions, never developed an independent wrong of iniuria, the same concept can be seen in the development of aggravated and possibly exemplary damages.

There is a great deal that can be said about the meaning of the concept of dignity, but it suffices for these purposes to quote from the work of Professors David Luban and Alan Donagan, which was relied upon in this context in a recent essay on dignity by Professor Waldron:^[27]

No matter how untrustworthy somebody may have proved to be in the past, one fails to respect his or her dignity as a human being if on any serious matter one refuses even provisionally to treat his or her testimony about it as being in good faith. An immediate corollary to this principle is that litigants get to tell their stories and argue their understandings of the law.

In other words, dignity in the context of court procedures means that on a serious matter an individual will have the opportunity to put his or her case and that the case will be treated, provisionally (that is before any assessment of reliability and honesty) as being put in good faith.

3. Possible differences between natural and utilitarian rationales for procedural fairness

(1) Where the decision would be no different

There is one very important area of Australian administrative law where legal doctrine would not fit a conception of principle based on natural justice, if it were read literally. On a literal application of it, this doctrine fits only a conception of procedural fairness based upon utilitarian principle. In Stead v State Government Insurance Commission,^[28] Mason CJ, Wilson, Brennan, Deane and Dawson JJ said that

an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

Stead's case was concerned with a denial of natural justice by a trial judge who deprived counsel of the opportunity of presenting argument on the issue of causation. The test to be applied, read literally, was whether the denial of that opportunity deprived the plaintiff of the possibility of a different outcome. There has been some debate on the question of whether this test is backwards looking or forwards looking, or both. In other words, is the possibility of a different outcome to be measured by the possibility at the previous trial, or the possibility at a future trial? But in either event, the determination is one which is concerned with a utilitarian calculus. It is a concern that the court's time should not be wasted with futilities.

One objection to the approach in Stead’s case, described by Megarry J in John v Rees and later quoted by Heydon J in Australia,^[29] is that the law is:

strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

This is an objection as to application, not as to principle. It might mean only that the examples of application are rare for practical reasons. In Re Refugee Review Tribunal; Ex parte Aala McHugh J in dissent (but not on this point) said that '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'.

If read literally, Stead’s case would not permit exceptions to the dismissal of an appeal or (as it is applied) exceptions to the refusal of a prerogative writ where the result would have been no different. In the criminal context this reasoning has not been accepted. For instance, consider an extreme example of a criminal trial that proceeded against an accused person who was not told of the occurrence of the trial and not given an opportunity to be present. The evidence might be utterly overwhelming: Undisputable television footage, fingerprints, DNA, dozens of witnesses. Nevertheless, there would still be a substantial miscarriage of justice if the appellant were not given a new trial. As the High Court said in Weiss v R,^[30] ‘there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind’. Hence, the proviso has not been applied in cases involving a failure by a judge to give reasons on an important subject matter in a judge alone trial,^[31] in cases where a judge fell asleep during the trial,^[32] in a case of an unbalanced summing up,^[33] and in a case involving a mistaken assumption about legal liability.^[34] Put in different terms, there remains a fundamental injustice in a court which says to a party: 'you have not had the very fundamentals of a legal hearing to which you were entitled, but it would be futile to order that you be given that to which you are entitled'.

Although the decision in Stead’s case has been applied on many occasions in administrative law, it has also been recognised in administrative law that it is not an absolute proposition. In Dagli v Minister for Immigration and Multicultural and Indigenous Affairs,^[35] the Full Court said:

It is one thing to say that an applicant who claims to have been denied a “legitimate expectation”, or asserts that the Tribunal misled him, must prove that he suffered “practical injustice”. In such cases, the applicant is required to demonstrate that what occurred actually affected the outcome. It is altogether another thing to suggest that an applicant, whose case has been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of that fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material. That is simply not our understanding of the law.

These decisions suggest that Stead’s case is not applied literally. Its terms suggest a utilitarian calculus. Its application is one of principle, with a focus on natural justice.

The same approach would probably be the conclusion in England, after Osborn, at common law. But Osborn’s case may no longer be the case in English law. Subject to any challenge in Strasbourg, s 84(1) of the Criminal Justice and Courts Act 2015 has the effect that the High Court and Upper Tribunal must not grant relief for judicial review if it appears to be highly likely that the outcome would not have been substantially different. There is an exception only in cases of exceptional public interest. This appears to suggest a statutory utilitarian formulation. If this is the approach taken by the English courts then the approach in Osborn’s case and the approach in the Criminal Justice and Courts Act 2015 are incompatible. They are incompatible because they are based on different philosophical foundations. Osborn’s case involved a court making a determination according to a legal principle of natural justice, but the legislation was based upon a utilitarian conception. It might be said that a utilitarian calculus is something about which Parliament is well suited to engage with but that a court should only ever deal with principle.

(2) Joinder of a necessary party

A utilitarian approach to procedural fairness is also eschewed in the area where a decision is made without the joinder of a necessary party. As far as I am aware a literal application of Stead has never been applied in this context. In Pegang Mining Co Ltd v Choong Sam^[36] Lord Diplock said that

When orders are made without the joinder of a necessary party then those orders can be set aside because of the denial of natural justice.

The same point was made by McHugh J in Victoria v Sutton^[37] and affirmed by a unanimous High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd.^[38] The principle was not qualified by the suggestion that the submissions or interest of the third party would not permit the decision to be quashed if it would not have made a difference.

(3) Contempt hearings and recusal applications

In contrast with the natural justice principle underlying the former two doctrines, there are, however, two well accepted rules of procedure where the procedural fairness of those rules is based upon utilitarian conceptions concerning the need for efficiency.

One example is the rules concerning contempt in the face of the court. Here, the judge could be potentially acting as the prosecutor of the allegation, as the witness of the facts, and as the adjudicator of the punishment. The rationale for such an approach is the need for an efficient trial procedure. In some extreme cases, contempt in the face of the court could bring a trial to a halt. Although the principle is not based upon an underlying concept of natural justice it is an extremely exceptional remedy and is subject to significant safeguards, including (i) setting out the charge of contempt, (ii) giving the alleged contemnor the opportunity to consider the charge and if necessary, to seek further legal advice, or an adjournment or, perhaps, further particulars of the charge, (iii) giving he alleged contemnor the opportunity to plead to the charge, and (iv) if the plea is one of not guilty, giving the contemnor the opportunity of presenting any evidence or making any submissions.^[39]

In Fraser v The Queen,^[40] Kirby P and McHugh JA said:

In the case of summary proceedings for contempt in the face or hearing of the court, there are special reasons for the extension of facilities and privileges to the alleged contemnor. By any standard the procedure is extraordinary. The judge may be, at once, the witness, possibly even the victim, of the contempt. He may be the initiator of the former curial proceedings to bring the contemnor before the court, as was the case here. It is he who has to decide the issues of fact, to determine the charge, and then to make the order for punishment or to discharge the contemnor. This unusual concatenation of roles imposes upon the judge peculiar responsibilities and equivalent duties to ensure that justice is done and seen to be done, if he decides to deal with matter summarily.

It is trite to say that a person faced with a serious charge, and the risk of punishment, including imprisonment, should be given an ample opportunity to be heard. ... The rule as to hearing parties is fundamental to due process of law. But it is specially important in the extraordinary summary procedure for contempt for the reasons already suggested. The requirement of the appearance of justice imposes on the judge a special obligation to ensure that he has not made up his mind until everything that can reasonably be placed on the scale is allowed to be put there.

Another example is the well accepted practice that an application for recusal of a single judge hearing a case is to be heard, in the first instance, by that judge himself or herself. The reasons for this rule include matters of efficiency. Questions of apprehension of bias can sometimes arise almost spontaneously. In a complex case the recusal questions might be bound up with the detail of the facts of the case which might take another judge days or weeks to digest. The well accepted practice has, however, been the subject of some debate. In an article in the London Review of Books in January 2011, Sir Stephen Sedley said that “the system should not compound one paradox – a judge who is unbiased but might reasonably be thought not to be – with a further paradox: a judge who, in order to decide whether he will be sitting as judge in his own cause, has to sit as judge in his own cause”.

Conclusion

The most fundamental point of this paper is that although the terms “natural justice” and “procedural fairness” are often used interchangeably, there are two different concepts involved. The most comfortable use of the “natural justice”, although far from ubiquitous, is to describe underlying principle rather than any direct rules of procedural fairness. In this underlying sense, natural justice reflects a long, although controversial, tradition of natural law. Many of those who support a principle of natural justice see it as a principle based upon the dignity of the individual, which informs and shapes the rules of procedural fairness. However, as a principle it competes with other philosophical principles such as utilitarianism. This paper has not sought to support a natural justice conception ahead of any other philosophy. But three points can be made. The first is that unless legislation requires it, the rules of procedural fairness should not be shaped by reference to a multitude of different philosophies. Different underlying principles point in different directions. The second point is that commitment to a principle permits the law to be transparent. By exposing a particular belief in philosophical underpinning of a rule it is possible for any development or adjustment to a rule to be done in a transparent manner.

The final point is that the competition of underlying philosophical principle is not limited to the rules of procedural fairness. Those that support natural justice, as such an informing principle, would not limit it to procedural fairness. An example where principles of natural justice might be said to shape rules other than procedural fairness is the "principle of legality". Although often described as a presumption, the principle of legality is not a presumption in the true sense of a standardised inference that if one fact exists then another should be inferred. In Electrolux Home Products Pty Ltd v Australian Workers' Union,^[41]Gleeson CJ said that “modern legislatures regularly enact laws that take away or modify common law rights”. The principle of legality cannot be a “presumption” in that sense. It is an externally imposed rule upon construction of legislation. After quoting from Gleeson CJ in Electrolux, in Saeed v Minister for Immigration and Citizenship,^[42] French CJ, Gummow, Hayne, Crennan and Kiefel JJ said that "The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law." It is an externally imposed principle, derived from a conception of natural justice, which requires that in the process of adjudicating an individual’s rights certain rules of construction are employed.

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