"Natural Justice Issues In A Tribunal Hearing"

Council of Australian Tribunals, South Australian Chapter, The Hon John von Doussa, President, Human Rights & Equal Opportunity Commission, Thursday 10th March, 2005

I was first approached by one of your Committee to speak tonight on a topic which sounded an easy one: "talk about your experiences in consensus judgments and how committees of more than one function". I shall amplify why that would be an easy topic in a moment.

But once I had said yes I was contacted by your Chair. The whole picture changed. She listed a variety of topics for discussion - bias, unrepresented parties, procedural fairness. These can be hard topics, but are they seemed all to fit under the general umbrella of natural justice. So here we about to discuss "natural justice issues in a tribunal hearing".

However let me first inject a human rights perspective, and to show how natural justice, and tribunals, fit into human rights discourse.

The modern concept of human rights developed following the Second World War and the revelations of the gross atrocities that had occurred. On 10 December 1948 the United Nations adopted the Universal Declaration of Human Rights, marking the first time in history that human rights and fundamental freedoms had been set down in detail in a document adopted by an inter-governmental body.

The declaration has prompted the elaboration of more detailed international instruments which identify particular human rights in more detail, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic Social And Cultural Rights. Those conventions and the Universal Declaration together are now known as the International Bill of Rights.

They legally bind the contracting State parties (Governments) to ensure all people within their territories are free to enjoy the enumerated human rights and fundamental freedoms.

There are important, indeed fundamental, rights where tribunals in all their forms are recognised as a human rights process tool. A sufficient starting point to demonstrate this is the Universal Declaration of Human Rights which states in the preamble:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

And the Articles in the Declaration provided:

Article 6 - Everyone has the right to recognition everywhere as a person before the law.

Article 7 - All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 8 - Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights grounded by the constitution or by law.

Article 10 - Everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal, in the determination of his rights and obligations ...

By adopting these Articles, a State formally recognises the obligation to ensure the full enjoyment of the rule of law by its people. It is in this way and that tribunals may be seen as a recognised human rights tool in the resolution of the broad range of civil entitlements and disputes between citizen and state, and more generally across the community between citizen and a citizen.

Further, the Articles give international recognition to the concept of natural justice as fundamental human rights. The accepted notion of natural justice in this country is that everyone is entitled to a decision by a disinterested and unbiased adjudicator (nemo judex in causa sua or in English, the hearing rule); and that the parties shall be given adequate notice of the case against them, and a right to respond (audi alteram partem or in English, the bias rule).

Before considering these rules let me deal with my experiences in consensus judgments. I have sat in quite a variety of bodies involving more than one member, including discipline tribunals for dentists and lawyers; Full Court's in the the Supreme Court of South Australia and around Australia in the Federal Court; in the the A A T; in the Australian Competition Tribunal; and in the final Courts of Appeal in Vanuatu and Fiji.

The overwhelming experience is that there is no common rhyme nor reason in how consensus judgments emerge. Each group, no matter what the jurisdiction, proceeded ad hoc. The strongest personality in the group seemed to set the scene. Sometimes but not always that was the presiding member. Often the scene was set by whoever volunteered to write the first draft, or absent such a volunteer, by the member who circulated a first draft.

Whether out of the brilliance of the first draft, or an unwitting desire on the part of the others to limit their workload, the first draft often carried the day, perhaps with amendments to tweak the detail and polish the edges, but without fundamental change in the essential reasoning.

In the ideal situation I think every member should avoid the expediency of relying on the first draft, and should at least sketch out their own reasons without seeing the work of the others. It is amazing what new ideas this process can produce, and how first impressions gained during a hearing can change.

So, in short, in consensus judgments my experience is simply that the most active, aggressive member is likely to impose consensus, sometimes I think at the expense of good and well-considered reasons.

Let's not go further down that road. I look instead at the wise topic chosen by your Chair.

First, a few very general observations:

The rules of natural justice are now recognised as part of the common law of this country. At one time it was said that the rules applied, if at all, as an implication from the legislation or instrument that created the court or tribunal. Thus, the application of the rules, as well as their content, turned on an exercise of construction. However those days are passed. The common law now imposes natural justice, or as it is often put, a requirement of procedural fairness.

However the content and the scope of the rules are not absolute. They are flexible and can vary according to the nature of the tribunal, the subject matter of issues to be decided, the rules under which the tribunal operates, the urgency the situation, and of course the circumstances of the case.

These days I think it can be accepted as almost universal that a tribunal that is established by statute to hear and determine issues that affect rights, interests, and legitimate expectations arising under recognised practices or government policy must in all cases meet the hearing rule.

Again with the hearing rule, generally speaking the kind of tribunal represented here today is likely to be required to meet its usual requirements.

I think both the bias rule and the hearing rule represent a distillation of good practical common sense over many years by our superior courts. If you are presented with a natural justice argument made complex by the parties and their counsel, remember that common sense is the foundation of the rules and let your commonsense guide you to your answer.

Support for this broad approach may be found in a judgement of Justice Brennan, who has been a leading proponent of natural justice principles. In the leading case of Kioa and West (1985), his Honour said that a decision-maker will observe the principles of natural justice "by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised".

The last general comment is to note how the rules of natural justice fit into the critical questions of jurisdiction. Every tribunal must first have jurisdiction over subject matter of the dispute. It must be the kind of dispute that falls within the power of the tribunal.

Then the tribunal in carrying out its function must not exceed its jurisdiction. It will do so if it makes an error of law by applying the wrong legal test or answering will wrong a legal question. It will do so if it fails to take into account relevant matter or takes into account any irrelevant matter. It will also do so if it does not meet the requirements are the rules of natural justice.

An error of this type is a jurisdictional error that invalidates the decision. On judicial review by a court, or on review or appeal to a higher level in the system, the decision will almost invariably be set aside. Generally, a submission will not be entertained that even if the error had not happened the result would be the same. The overriding issue of public importance, going to the confidence of the community in its legal system, is that every person is entitled to a hearing that meets the dictates of procedural fairness. If the hearing does not do so, the aggrieved party is entitled to start again before a newly constituted tribunal and have a hearing that accords are with the principles of natural justice.

I come now to look at each rule.

The hearing rule embodies the principle that a person may not be judged in his or her own cause. The rule has two implications. First the adjudicator must not have an interest in the proceedings, and secondly, even if the adjudicator has no interest, he or she must not be biased.

The nature of an interest that disqualifies has been the topic of fairly recent decisions. It had for a long time been accepted that if the person had a direct interest in property in question, or in the outcome of the matter, that led to automatic disqualification. The interest did not need to be pecuniary. Thus, Lord Hoffmann was held by the House of Lords in January 1999 to be disqualified for interest in the Pinochet deportation case in the UK because he was at a director and chairperson of a charity established to undertake work for one of the intervening parties, Amnesty International, and he had engaged in fund-raising for Amnesty International. Moreover his wife had for many years been working in the Secretariat of Amnesty International. (Amnesty International is an organisation concerned with human rights and it was an intervening party in a challenge to Pinochet's deportation.

On this basis, if a tribunal member, or a spouse or close relative of the member, is closely involved with a party, or in any activity which is the subject matter of the case, the tribunal member is likely to have a relevant interest.

This general rule has recently been modified at the edges by the High Court of Australia in a case concerning the holding shares in a corporate party to the proceedings. An interest of this kind had been a contentious issue for a long time. That question was considered by the High Court after the Pinochet case. The High Court took a pragmatic view. In one sense any shareholding could constitute a direct interest in the party, and therefore in the outcome. However the High Court held that disqualification in such a case is not automatic but depends on degree.

The Court said that having regard to the current state of the common law in Australia on the subject of disqualification for apprehended bias, there is presently no free standing rule of automatic disqualification where a judge has a direct pecuniary interest in the outcome of the case. However, in the practical application of the test of apprehended bias, economic conflicts of interest are likely to be of particular concern Small shareholdings in a large public company, like a bank, the value of which would not be affected by the outcome therefore did not disqualify. The same rule obviously applies to members of a tribunal.

So there is now a partial merging of the interest and bias, as any interest can also give rise to the possibility of bias. It would be very difficult for a party ever to prove that a tribunal was actually biased. The law in Australia does not for this reason require proof of actual bias. An apprehension of bias is enough: would a fair-minded person, knowing the facts, apprehend that the tribunal, or a member might not bring an impartial mind to bear on the case.

Recent examples abound.

Last week the coroner in the Palm Island inquest was compelled to concede an apprehension of bias because he had in another capacity twice considered complaints of violence by the police officer who had arrested the deceased, those complaints apparently concerning circumstances bearing some similarity to those surrounding the deceased's death. Both these complaints had been dismissed, thereby giving rise to a possible inference that the coroner might have an opinion about the credit of the police officer.

Also, and I thought equally compelling, was the fact that on the night of the first day of the very contentious hearing, the coroner accepted the invitation of one counsel, in the absence of all the other parties, to drink beer, and it was suggested that he then engaged in discussion concerning the difficulties being experienced in receiving evidence from a an illiterate Aboriginal person.

Another example, reported in the January 2005 Australian Law Journal, concerned a full-time Chairman of a tribunal who was presiding on an appeal by a government department whilst at the same time seeking support from officers of that department for his reappointment. The Court of Appeal of New South Wales said the chairman had put himself in an impossible position. A fair-minded person might reasonably suppose that his mind may have been influenced in favour of an outcome that did not disappoint the department.

There are some points to note.

In a panel situation an apprehension of bias against one member will infect the decision of the whole panel. If the biased member does not stand down, the ultimate decision will be invalidated by the bias, even if the majority of the other members came to the same conclusion.

Next, the objective, fair-minded observer is taken to be one in possession of all relevant facts about the incident, past event, or whatever it is that this is said to give rise to the apprehension of bias, including about the actual involvement of the decision-maker. Often a complaint of apprehended bias is made, but it turns out that only some of the facts are known to the complainant, and the additional facts would dispel in the fair minded person any cause for apprehension.

Further tribunal members and judges, when appointed to a position, have a duty to carry out their functions. So they should not jump at every opportunity to disqualify themselves. They must reflect on whether it is a case where an apprehension of bias really does arise. If decision-makers too readily stand down there is a risk that parties will use this approach to get rid of members who they think will be against their cause, and try and stack the tribunal.

Apprehension of bias will not arise just because the same adjudicator has decided similar cases in the past, even though the past decisions are not in line with the present party's wishes.

However, loose comments that condemn generally a particular body of evidence, or the credit of a witness may do so. Thus, in one case, comments from a judge about the pro-plaintiff leanings and opinions of a particular medical witness were so broad is to give rise to the apprehension of bias through pre-judgment against evidence coming from that source. Generally I would counsel against any person sitting on a matter where the result could turn on the credit of a witness if that person has previously disbelieved the witness in another matter the earlier finding is likely to give rise to the apprehension that the witness - whatever the evidence - will not be accepted.

In another New South Wales Court of Appeal decision discussed in a the December 2004 Australian Law Journal, a Supreme Court judge was held not to be disqualified from hearing a pedestrian's claim against a local council simply because she had written an article, extra-judicially, criticising three recent Court of Appeal decisions that were adverse to plaintiffs in damages claims. The court identified the question as whether what the judge had written contained preconceived views that crossed the ill-defined line so as to threaten the appearance of impartial justice. The court held the article was a nowhere near the line. It was mildly critical of the earlier judgments, but it was not so pro-pedestrian and anti-council as to give rise to any reasonable apprehension that in deciding the case the judge might lean in favour of the plaintiff.

Nor will an apprehension of bias through pre-judgment arise because a tribunal expresses views about the merits of a case early in the peace, such as at a pre-trial conference or after the applicant's opening, so long as the remarks reasonably understood indicate that the view is tentative only. So long as what is said indicates that the mind of the tribunal is not finally made up, and that further evidence will require the tentative view to be reconsidered, no apprehension of bias would arise in the mind of a right-thinking person.

Finally, on bias, there is one other dimension. It may sometimes happen that one of your decisions is the subject of attack on judicial review or appeal. In judicial review the tribunal is likely to be named as a party. Should you brief counsel to appear and defend your decision? Very definitely you should not do so. Being independent and unbiased, you allow others to criticise, and you remain passively accepting of whatever criticism is made.

I turn now to the second limb of the natural justice rule, the hearing rule. Whilst courts and tribunals have long, and sometimes convoluted, rules governing their procedure, at bottom I think they all come down to this requirement. In inter-parties proceedings an application must be served or alternatives must be adopted to bring the proceedings to the notice of the respondent. The claim must be articulated in a meaningful way for the same reason. Rules of pleadings are all designed to ensure one side knows the case of the other side, and has the opportunity to make formal answer to it. Rules about opening a case, about the applicant going first, about calling evidence, and then closing the case, and the rules about the respondent's presentation of an answering case, are all intended to meet this requirement.

In all these situations, the rule is met so long as the other side is given a fair opportunity to respond. There is no requirement to ensure that the opportunity is exercised. Often it is not - sometimes for good tactical reason.

The problems start when one side or the other cannot understand the rules, or will not comply with them.

The rule of law, and the Universal Declaration of Human Rights recognise that everyone is entitled a "in full equality to a fair hearing". That does not mean that the rules must be applied equally to everyone. Aristotle more than 2000 years ago famously said "we should treat like cases alike and unlike cases differently in proportion to their differences". That applies with the same force today. It is an error to apply the rules equally to a well represented, sophisticated party and to an unrepresented, unsophisticated party. The latter must be helped to understand the reason for the rules, what is required to comply, and why it is important in the interest of fair play to do so. The observations of Justice Hill in an appeal from the dismissal by a federal magistrate of a discrimination case give this advice. After saying that the most of the applicants submissions were unhelpful his Honour said:

This does not, however, mean that the applicant can have no chance of success in these proceedings. Whilst this court has a duty not to intervene in matters involving unrepresented litigants to such extent that the impartial function of the judge is compromised, a judge may intervene to protect the rights to an unrepresented litigant and to ensure that the proceedings are fair and just ..

Hill J went on to analyse the case to see if there was legal error which the appellant had not identified or raised. The magistrate had found that there was no dismissal of the aplicant from his employment in consequence of discrimination. The judge considered the evidence established a constructive dismissal, and therefore allowed the appeal even though the point had not been seen by the appellant.

The problem of appearing to remain even-handed when there is an imbalance caused by one side being represented and the other not is always very real. I think it is safe to tell an unrepresented party what is expected of them, but it can be the dangerous to go much further and to start offering advice on how to achieve what is required

Unrepresented parties, especially rude and aggressive ones who will not listen, can be very difficult to manage. But justice requires that the tribunal be patient and remain as calm as possible. Explanations must be given, even if they are not listened to, backed up with a warning as to what the consequences will be if the rules or a direction for the tribunal is not complied with. Only then should the guillotine drop. That applies equally to the stubborn party who probably does understand only too well what is being said, but refuses to do what is required.

Another problem which can arise, regrettably not only with unrepresented parties, is that the issues and direction of a case can change as the evidence progresses. A party may set out to establish an entitlement to a remedy, or to the dismissal of a claim, on one ground and when that ground suffers too many blows, reliance is shifted to another ground. Sometimes the subtleties of a case which undergoes these changes do not appear until the very end, sometimes only when decision writing is taking place. If this happens it is important that the tribunal considers whether each of the parties really got a fair chance to answer the case that is ultimately presented. If not, the chance should be given, even if the matter has to be relisted, or delayed whilst written submissions are made.

Justice Kirby in a paper about the giving of oral judgments, warned of the risk that sometimes it is not until the process of delivering reasons is under way that the adjudicator will suddenly realise the real point of the case. He said that an adjudicator in this position should be bold enough if necessary to stop, to admit to the situation, and to adjourn midstream to consider the point . In like vein if the adjudicator only sees the point after the conclusion of addresses, it is highly likely that at least one, if not both, the parties have not seen the real point either. Legal error is very likely to occur if the case is decided on grounds other than those argued by the parties. They must be given the chance, however late in the peace, to address the real question.

Some tribunals are comprised of experts in particular field or discipline, and they are appointed for the very reason that they are expected to use that expertise when reaching a decision. Special issues under the hearing rule arise in this situation. If the case of a party is based, or might be based, on a view of the field of expertise that the tribunal member does not agree with, this should be revealed so that the party has the opportunity of addressing the view held by the tribunal member.

The form of the opportunity to address the real question depends on the nature of the hearing. It will not always be necessary to give an oral hearing. In some circumstances it will be enough that an opportunity to respond in writing is given. Indeed a written response can be a helpful process with loquacious unrepresented parties. Once a party in oral submissions starts repeating arguments it may be appropriate, at least after a while, to say that the opportunity for oral submissions is drawing to a close, and to offer the party the right to supplement what has really been said with a written submission, to be filed within, say, 14 days.

Another situation some of you may be faced with is a governing Act which says your tribunal is not bound by technicalities and legal forms, or even by the rules of evidence. These are helpful provisions, designed to encourage informality and to make proceedings less confronting and difficult for the parties, but they do not mean that all legal principles are out the window, and can be disregarded. Federal discrimination law governing federal courts in that type of case has such a provision, but the Full Federal Court has held that the established principles for the reception of fresh evidence nevertheless must be followed. Those principles are that the evidence was not known to the party at the time of trial, that it could not have been discovered with reasonable diligence at that stage, that the evidence is credible, and that it would be likely to affect the result. The court said that these principles had been established over time as an aid to the administration of justice and for that reason should be followed. The same can be said about rumour, hearsay evidence, and oral evidence about the contents of written documents. These rules of evidence have a very solid basis in good common sense, and tribunals should be very wary about departing too far from them. The rules about expert evidence are in the same category. There is a structure to those rules based on deductive logic. The basic facts on which the opinion rests must be identified and proved; the science or expert field of learning to be applied must be explained; and the conclusion must follow logically from applying the learning to the facts. The laws of logic do not change just because the laws of evidence do not apply.

This has been a rather discursive grab bag of ideas. I was asked to speak for 40-45 minutes - I have - and then to enter into discussion on the general topic. Let us proceed to do so.