Procedural impropriety Flashcards
What does procedural impropriety relate to?
failure to follow correct statutory procedure and/or
duty to act fairly
What is the historic approach to procedural impropriety relating to a failure to observe procedural statutory rules?
Breach of mandatory procedural requirement = decision invalidated
Breach of discretionary procedural requirement = not automatic invalidation
What is the modern approach to procedural impropriety relating to a failure to observe procedural statutory rules?
would Parliament have intended that non-compliance should invalidate decision?
What are the common law rules relating to the duty to act fairly?
Right to be heard
Rule against bias
What does the right to be heard mean?
Person affected by public law decision should be given opportunity to present case
What do the courts consider when assessing the right to be heard?
i. Whether duty has arisen
ii. Level of duty owed
iii. Content of duty and whether there is breach
What does the rule against bias mean?
No one should be a judge in their own case
What do the courts consider when assessing the rule against bias?
i. Context of case and
ii. Determine if there has been direct or indirect bias
What will the court consider when assessing if the duty to act fairly has arisen?
extent of justice/fairness required in a given situation
In what cases has the duty to act fairly been modified/overrided?
- national security
- emergency
- rationing resources
- person waived right
What happens once the court has decided that the duty to act fairly applies?
court assesses level of fairness owed
What is the general principle for the level of fairness owed under the duty to act fairly?
More at stake to individual = higher level of fairness owed
What were the rules laid down in McInnes regarding the level of fairness owed under the duty to act fairly in licencing cases?
- Where licence is being forfeited = higher level of fairness (needs reason)
- Where mere applicant = lower level of fairness (issue is of general suitability)
- Legitimate expectation cases (applicant satisfies conditions) = medium level
What are the five broad elements relating to the content of the right to be heard?
a) Notice of the case
b) Right to make representations
c) Witnesses
d) Legal representation
e) Reasons
What considerations are made regarding notice of the case under the right to be heard?
- failure to inform person of evidence against them or decision affecting their interest
- reasonable time to respond before decision made
What was the criteria to consider when deciding if an oral hearing is required laid out in the case of anderson?
- Subject matter and circumstances
- Nature of decision
- Whether substantive issues of fact cant be resolved in written evidence
What principle other than the criteria in anderson should be considered for deciding if an oral hearing is required as laid out in Osborn?
guard against temptation to refuse oral hearing to save time/trouble/expense
What should be considered with regard to having witnesses under the right to be heard?
- stake to individual
- nature of decision making body/proceedings
- whether court thinks legalistic approach is appropriate
What is the general rule for whether a public body should allow legal representation under the right to be heard?
where public body’s rules do not exclude representation, they have discretion to decide
What were the factors suggested in Tarrant that should be considered when deciding whether a person has the right to legal representation under the right to be heard?
- Seriousness of charge
- Likelihood that point of law may arise
- Ability of person to conduct own case
- Need for speedy process
Is there a common law right to be given reasons for a decision by a public body?
No
When should reasons be given by a decision making body?
- fundamental interest at stake
- unexpected decision
- no proper justification for not giving reason
What is the presumption under the rule against bias?
Strong presumption that direct bias will invalidate decision
Will direct bias invalidate a decision where only one member of a group (decision making body) is biased?
Yes
why was there direct bias in Pinochet?
judge actively involved in organisation who was party to proceedings
What is the test for indirect bias?
fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased
What situations might invalidate a decision due to indirect bias?
- Participation/presence in decision by someone who is biased
- Pre-formed opinion
- Policy bias
Not necessity
