Principles of Natural Justice and Bias from Preconceived Notions

The principle of natural justice or fairness is the sine qua non of a democratic government.

Principles of natural justice includes:

(a) Rule against bias: Bias may include:

(i) Personal Bias; (ii) Pecuniary Bias ; (iii) Subject-matter Bias; (iv) Departmental Bias; (v) Preconceived notion bias.

(b) Rule of audi alteram Partem: This right to fair hearing includes:

(i) Right to know adverse evidence; (ii) Right to present case; (iii) Right to rebut evidence; (iv) Right to cross-examination and legal re presentation; (v) Right to reasoned decision, etc.

(c) Reasoned Decision

‘Bias’ means an operative prejudice, whether conscious or unconscious, in relation to a party or issue. [1] This is the idea that the judge may well have “strong views” or “preconceived ideas” concerning the case before them.

Chapter 1

Bias arising out of preconceived notions is the subject of this paper. The problem is that no judge can be expected to keep his mind blank like a sheet of paper, but at the same time, preconceived notions would defeat the very purpose of a fair trial. A celebrated judgment to illustrate this point came in the English case of Franklin v Minister of Town and Country Planning [2] where the House of Lords stated that the minister had a genuine duty to give consideration to a report of an inspector concerning the siting of a new town at Stevenage and to consider objections to that position. It was held that reference to bias was out of place in this situation. However, even though the result is the same, the reasoning of the Court of Appeal is to be preferred, which stated that complete impartiality cannot be expected. Also, impartiality in the context of a minister making a decision, such as the siting of a new town, would not be the same as when a Magistrate decides a case. [3] However, while complete impartiality is difficult to achieve, procedural fairness may require the minister to still hear representations. [4]

Again, in R. v. Secretary of State for the Environment, ex p. Brent London Borough Council [5] , the applicant local authorities claimed that they should be entitled to make such representations to the minister as to the way in which he should use his powers in issuing local authority grants. The court held that the minister was under a duty to act fairly in the way he exercised his discretion under the legislation, although the court accepted that the minister would not be expected to hear such representations if he were a judge. The minister would not be expected to approach the matter with “an empty mind” but, in the words of the court, the mind should “at least be ajar”. [6]

In Govindaraja Mudaliar v State of Tamil Nadu [7] , the government decided to nationalize road transport and appointed a committee to frame a scheme for this. The Home Secretary was made a member of this committee. When the scheme was finally published, objections were heard by the Home Secretary, but the scheme was subsequently passed without any modifications. It was contended that the hearing was vitiated by the rule against bias because the Secretary being a member of the Committee that framed the scheme had already made up his mind about the nationalization. The Court rejected this contention on the ground that the Secretary did not finally determine any issue so as to foreclose his mind. He simply helped the Government in formulating the scheme. Similarly, in Kondala Rao v. APSRTC , the court did not quash the nationalization of road transport order of a minister on the challenge that the same minister had presided over a meeting only a few days earlier in which nationalization was favored. The court instead took the view that the committee’s decision was not final and irrevocable, but merely a policy decision.

The problem of bias arising out of preconceived notions

The problem of bias arising from preconceived notions may have to be disposed of as an inherent limitation of the administrative process. [8] It is useless to accuse a public officer of bias merely because he is predisposed in favor of some policy in the larger interest of the public. As a wise man had once stated, “we are each burdened with prejudice; against the poor or the rich, the smart or the slow, the gaunt or the obese. It is natural to develop prejudices.  It is noble to rise above them.”

Chapter 2: From a global perspective

In the Australian case of Minister for Immigration & Multicultural Affairs, Ex parte Jia Legeng, the Minister for Immigration and Multicultural Affairs (“the Minister”) appealed against a decision of the Full Court of the Federal Court of Australia, with respect to a decision to cancel a Chinese immigrant Mr Jia’s visa. The facts of the case, briefly were: Mr Jia was a Chinese national who arrived in Australia on a student visa in August 1991. In February 1995, Mr Jia was convicted of four offences- unlawful assault causing bodily harm, unlawful detention, making a threat to unlawfully harm a person, and sexual penetration without consent, for which he was sentenced to a total term of imprisonment of six years and three months. Subsequenly, a delegate of the Minister refused Mr Jia’s application for a Special (Permanent) Entry. On appeal, the AAT determined Mr Jia was of good character, and overturning that decision, remitted the matter to a delegate of the Minister, with the direction that he grant Mr Jia a visa. The tribunal’s decision came into the limelight when the Minister decided to be interviewed on radio, expressing his displeasure over the Tribunal’s recent decisions with immigration matters. When the interviewer asked how the law determined whether a person was of good character, the Minister said:

“What we are looking at here is the commission of offences. I don’t believe you are of good character if you’ve committed significant criminal offences involving penal servitude. The law does actually write down that that is the test and it adds another test … if you are known to associate with organisations that are involved in criminal activity, you can be found to be of not good character.”

When asked what steps he as a Minister was going to take about it, he stated:

“I’m considering what steps I can take and there are some avenues. One of the suggestions that’s been made is that I could in fact grant the visa and then cancel it on character grounds. I have to weigh up whether or not that is a proper course for me to follow and I also have to look at the issue as to what the potential cost might be to the community if it opens up a whole host of other possible appeals to the Federal Court.”

On the Minister’s appeal to the High Court, the High Court held that in exercising his powers under ss 501 and 502 of the Migration Act 1958 (Cth) to cancel the visa and declare Mr Jia to be an excluded person, the Minister was affected by actual bias. The various judges enunciated on what a minister’s resonsibilities are and Kirby J went on to state that:

“Ministers are not judges. Clearly, the pressures, processes and nature of Ministerial decision-making differ from the judicial task. Consequently, the obligations imposed by courts on officers of the Commonwealth, including Ministers, should not “over judicialise” the performance of their functions, including the making of decisions required of them by statute.”