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Natural Justice Notes

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w/ - with w/out - without b/w - between b/f - before co-op - cooperation pr. DM - decision maker NJ - natural justice Admin - administrative Min. - minister

Fairness v Natural Justice

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Post Ridge v Baldwin? new terminology of 'fairness' + 'duty to act fairly' (Lord Parker in ReHK)

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2 opposing views 1) terms are interchangeable? case law doesn't prohibit this
= but NJ tends to be associated with robust procedural protection in judicial process whereas procedural fairness is used as a signal of more flexible, content-variable concept suitable in many administrative contexts. 2) shift from NJ to fairness has broader significance (McLoughlin) - fundamentally altered the basis for procedural intervention because no longer restricted to adjudicative setting + no fixed standards for determining breach. Courts engage in difficult balancing operation, taking into account individual interest +
effect on administration.
? Craig: difficulties w/this: a) NJ didn't originate from judicial desire to maintain control over adjudication but rather to protect property rights & interests thereto b) App of NJ, before intro of fairness, wasn't uniform & courts already balanced individual interests w/admin effects in deciding where to draw the line
= Craig?2 interpretations of fairness (b.i) fits into adjudication framework & doesn't require development of non adjudicative procedures - courts determine what adjudicative procedures are required (notice, oral hearing, reasons) & balancing may differ from NJ in degree but not in kind (b.ii) fairness has broader implications - adjudication is only one form of DM & there are others, incl. mediation, arbitration etc. Concept of fairness may lead to development of other procedural forms... Purpose of Fair Procedures

1. Instrumentalism
? Galligan: a person whose case is dealt with in accordance with authoritative standards is treated fairly and procedures are fair to extent that they bring about a fair result. Procedures themselves don't have intrinsic/selfevident value - unless it serves some significant values, it won't be connected to fair treatment & won't have a claim on our resources. They are merely working rules which have gained a place in our system through contribution to upholding of standards and, although once they're settled, temptation might arise to regard them as complete & independent in themselves, in reality, despite claims that they flow from fountains of justice, they result from good practice. Fundamentally, it's achievement of social goals that justifies fair procedure. Dignitarian theorists undervalue the significance of accurate outcomes.

2. Dignitarianism
? The guiding principle in designing & evaluating procedures is human dignity. Rights to interchange between citizen & official conferred by a fair hearing have intrinsic value because they express the elementary idea that a person, rather than a thing, has a right to be consulted about what is to be done with him (Tribe). Giving of reasons is especially dignitarian. Principal purpose of rules of NJ is to enable a person to identify with decision making process. Acknowledges person's right to understand his treatment + allows him to make a genuine contribution to decision affecting his welfare, invoking the idea of justice, not just self-interest.
? Galligan: but fair procedures are means to fair treatment which in itself is important only because person is recognised as a moral agent entitled to be treated w/dignity & respect.

3. Mid View
? Allan: person's moral rights consist in his entitlement to be treated fairly, both in content & application of legal rules. Rigorous procedures are often demanded because of their importance for the outcomes but there's no right to perfect procedures & no moral right to accurate app of legal rules, only to procedures which properly reflect the gravity of injustice entailed by mistaken decision. Instrumental value shouldn't be underestimated but procedures also have intrinsic value in acknowledging person's right to understand his treatment. If obedience of law ideally entails recognition of its morally obligatory character, there must be ways to test its

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