What Are the Principles of Natural Justice?

In most legal systems natural justice is a doctrine developed by judges. In Papua New Guinea it is a constitutional Division, and it applies far beyond the courts.

Section 59 — what they are

Two things follow from subsection (1). The principles are part of the underlying law, so they develop as the underlying law develops. And they control administrative proceedings as well as judicial ones — boards, tribunals, commissions, disciplinary bodies and decision-makers of every kind.

Subsection (2) sets a floor, not a ceiling. It states the minimum. More may be required depending on what is at stake.

What the duty to act fairly usually requires

• Notice. You must be told what is alleged or proposed, in enough detail to respond to it.
• A real opportunity to be heard. Not a formality — adequate time, access to the material relied on, and a genuine chance to answer.
• An unbiased decision-maker. This is where “to be seen to act fairly” does its work: the appearance of bias can vitiate a decision even where none in fact existed.
• A decision based on the material, not on undisclosed information or extraneous considerations.
• Reasons, where the nature of the decision calls for them — see the right to reasons.

Section 60 — a Papua New Guinean administrative law

In developing the rules of the underlying law under Schedule 2, particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organization.

This is a direction, not an invitation. Section 60 tells the courts not simply to import English or Australian administrative law, but to build a system suited to Papua New Guinean institutions — including consensus-based and customary procedures. Read it with Sch.2.3(1)(d), which admits foreign material only from countries the court considers to have a similar legal system.

Section 61 — Basic Rights are not diminished

For the avoidance of doubt, nothing in Division III.4 derogates any of the rights and freedoms provided for by Division III.3. Natural justice supplements the Basic Rights; it does not cut them down. The same point is made from the other side by section 37(21), which provides that nothing in section 37 derogates from Division III.4.

Village courts

Section 37(21)(b) preserves the powers and procedures of village courts from section 37. But section 37(22) then provides — notwithstanding that — that the powers and procedures of village courts shall be exercised in accordance with the principles of natural justice. Village courts apply custom and their own procedures, and they must still act fairly and be seen to act fairly.

Section 62 — decisions in “deliberate judgement”

Where a law provides or allows for an act to be done in the “deliberate judgement” of a person, body or authority, the principles of natural justice apply only to the extent that the exercise of judgement must not be biassed, arbitrary or capricious.

Section 62(2) then makes such an act non-justiciable to the extent it is done in the person’s deliberate judgement — except:

• to the extent provided by section 62(1) (bias, arbitrariness, caprice);
• in accordance with section 155(5) (the National Judicial System); and
• as provided by a Constitutional Law or an Act of the Parliament.

Challenging a decision for breach of natural justice

1. Identify what fairness required — notice, a hearing, an unbiased decision-maker, disclosure of the material.
2. Identify what was denied, and when.
3. Ask for reasons in writing, and for the material relied on.
4. Apply for judicial review in the National Court, or invoke section 155(4), or — where a Basic Right is also engaged — proceed under section 57.
5. Move quickly. Judicial review is subject to time limits and to the discretion of the court, and delay counts against you.

Leadership tribunals are expressly subject to natural justice by section 28(5), even though their proceedings are not judicial proceedings.