Substantive fairness versus procedural fairness debates
Substantive Fairness vs Procedural Fairness
Procedural Fairness (Natural Justice)
Refers to the process by which decisions are made.
Ensures fair procedures are followed, including:
The right to a fair hearing.
The right to be heard (audi alteram partem).
The right to an unbiased decision-maker (nemo judex in causa sua).
Disclosure of adverse material.
Procedural fairness focuses on how a decision is made, not on the merits of the decision itself.
Its objective is to prevent arbitrariness, bias, and unfair procedures in decision-making.
Substantive Fairness
Refers to the fairness of the outcome or decision itself, i.e., the merits or substance of the decision.
Ensures that decisions are just, reasonable, and equitable.
Looks at whether the decision was correct, reasonable, or proportionate in the circumstances.
Sometimes overlaps with concepts like reasonableness or proportionality in administrative law.
The Debate
Procedural fairness protects the decision-making process, while substantive fairness concerns the actual decision.
Courts traditionally focus on procedural fairness in judicial review rather than re-assessing the merits.
However, some judgments blur this line by requiring decision-makers to consider fairness in substance, particularly in cases involving fundamental rights or discretionary powers.
The debate is important because:
If only procedural fairness is required, an unfair outcome might still be lawful.
If substantive fairness is required, courts might interfere more deeply with administrative decisions, potentially undermining administrative efficiency and expertise.
Case Laws Exploring Procedural vs Substantive Fairness
1. Ridge v Baldwin [1964] AC 40 (UK)
Issue: Procedural fairness in disciplinary decision-making.
Summary:
A police officer was dismissed without a fair hearing.
Holding:
The House of Lords held that the dismissal was invalid because the officer was denied procedural fairness (no opportunity to respond to allegations).
Significance:
Landmark case establishing the fundamental importance of procedural fairness.
The decision emphasized natural justice rights.
It did not concern whether dismissal was substantively justified but focused on fair procedure.
2. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Australia)
Issue: Procedural fairness and reasonableness of visa refusal decisions.
Summary:
A delegate refused a visa without properly considering relevant evidence.
Holding:
The High Court held the decision was invalid because it was unreasonable and the decision-maker failed to observe procedural fairness by not properly considering relevant materials.
Significance:
Bridged procedural fairness and substantive reasonableness.
Procedural fairness requires decision-makers to take into account relevant considerations.
Courts may review if the decision was unreasonable or irrational, touching on substantive fairness.
3. Kioa v West (1985) 159 CLR 550 (Australia)
Issue: Procedural fairness in deportation decisions.
Summary:
Applicant faced deportation without being informed of adverse information held by the department.
Holding:
The High Court held the decision was invalid due to failure to disclose relevant information and give a chance to respond.
Significance:
Reinforced procedural fairness: right to know adverse case and respond.
Did not question substantive correctness but protected the fairness of the process.
4. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (UK)
Issue: Judicial review and substantive reasonableness.
Summary:
The court considered when a decision could be set aside as unreasonable.
Holding:
The court established the Wednesbury unreasonableness test: a decision is unreasonable if it is so irrational that no reasonable authority could have made it.
Significance:
Focus on substantive fairness via reasonableness.
Distinct from procedural fairness; courts don’t usually reassess merits but can intervene if decision is absurd or irrational.
Balances deference to administrative expertise with protecting against extreme outcomes.
5. Brisbane City Council v Attorney-General for Queensland (1977) 139 CLR 585 (Australia)
Issue: Interaction of procedural fairness and statutory interpretation.
Summary:
The Court held that even where statute limits procedural rights, some minimum fairness is required.
Holding:
Substantive statutory rights don’t negate the need for procedural fairness unless clearly excluded.
Significance:
Shows courts insist on procedural fairness as a minimum safeguard.
Highlights how procedural fairness complements substantive rights.
6. Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374 (UK)
Issue: Scope of judicial review: procedural vs substantive fairness.
Summary:
Government banned employees at GCHQ from union membership on national security grounds without consulting them.
Holding:
Court recognized procedural fairness is sometimes limited by national security, but the decision must still be lawful and rational.
Significance:
Illustrates limits on procedural fairness.
Judicial review focuses on lawfulness and rationality (substantive fairness).
Shows the balance courts strike between procedural rights and substantive decision-making.
Summary: Key Takeaways on Procedural vs Substantive Fairness
Procedural fairness ensures fair processes; substantive fairness ensures fair outcomes.
Courts more commonly intervene on procedural fairness grounds but will assess substantive fairness when decisions are irrational or unreasonable.
Both types of fairness serve to protect individuals from arbitrary or unfair administrative decisions.
The law strives to balance respect for administrative expertise with protection of rights.
Case law has developed principles such as natural justice, reasonableness, and proportionality to regulate this balance.
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