Substantive fairness in Australian administrative law
Substantive Fairness in Australian Administrative Law
Overview
Substantive fairness refers to the fairness of the outcome or decision itself, not just the fairness of the procedure followed (which is procedural fairness or natural justice). In Australian administrative law, substantive fairness concerns whether decisions are just, reasonable, and proportionate in light of the facts and law.
While procedural fairness requires decision-makers to act fairly in the process (e.g., hearing parties, avoiding bias), substantive fairness relates to the quality and justice of the decision made — whether the decision is reasonable, proportionate, and made with regard to relevant considerations.
Substantive fairness often emerges in merits review contexts, where tribunals reassess decisions, but courts also examine substantive fairness when reviewing for unreasonableness or discretionary abuse.
Key Concepts Related to Substantive Fairness
Reasonableness: Decision must be rational and based on evidence.
Proportionality: Decision must not be excessive or arbitrary.
Consideration of relevant factors: Ignoring or giving undue weight to certain factors can violate substantive fairness.
Avoidance of irrelevant considerations: Using improper reasons undermines fairness.
Discretionary fairness: When decision-makers have discretion, they must exercise it fairly and consistently.
Important Case Law Demonstrating Substantive Fairness
1. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Facts:
Mr. Li’s visa cancellation was reviewed by a delegate of the Minister. The delegate did not properly consider all relevant information, especially mitigating factors.
Decision:
The High Court found the decision unreasonable because the delegate ignored relevant material and failed to provide a fair balance in their reasoning.
Significance:
Emphasized substantive fairness requires decisions to be made on a proper and balanced assessment of relevant evidence.
Introduced the Wednesbury unreasonableness test in administrative law (decision so unreasonable that no reasonable person could have made it).
2. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Facts:
Concerns the validity of privative clauses attempting to restrict judicial review.
Decision:
The High Court held that decisions must comply with fundamental administrative law principles, including substantive fairness and reasonableness, and that these principles cannot be ousted by privative clauses.
Significance:
Reaffirmed that substantive fairness is a core principle of administrative law that protects individuals from arbitrary decisions.
3. Craig v South Australia (1995) 184 CLR 163
Facts:
This case involved the application of natural justice and fairness in disciplinary proceedings.
Decision:
The High Court recognized that substantive fairness requires not only procedural fairness but also that decisions be fair in their effect and outcome.
Significance:
Clarified the relationship between procedural and substantive fairness, showing that a fair procedure alone does not guarantee a fair result.
4. Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Facts:
The Minister refused a protection visa on grounds that were based on incorrect assumptions and ignored relevant evidence.
Decision:
The High Court quashed the decision on the basis it was unreasonable and therefore substantively unfair.
Significance:
Demonstrated that substantive fairness requires decision-makers to engage genuinely and fairly with evidence.
5. Bromley v Minister for Immigration and Border Protection [2019] FCA 563
Facts:
The tribunal refused a protection visa due to a failure to properly consider the applicant’s risk of harm.
Decision:
The Federal Court found that the tribunal’s failure to adequately address key evidence rendered the decision unreasonable and substantively unfair.
Significance:
Highlighted how failure to consider relevant factors leads to substantive unfairness.
6. Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Facts:
Concerns discretionary decisions made by immigration officials.
Decision:
The High Court emphasized that discretionary powers must be exercised fairly, reasonably, and in good faith, reflecting substantive fairness.
Significance:
Confirmed that discretionary decisions must be substantively fair, not just procedurally fair.
7. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Facts:
Decision regarding mining leases, where the Minister failed to take into account relevant factors and gave weight to irrelevant factors.
Decision:
The decision was invalidated for failure to consider relevant matters, breaching substantive fairness.
Significance:
Illustrated how substantive fairness requires decision-makers to properly consider relevant factors and ignore irrelevant ones.
Summary Table of Case Law
| Case | Principle | Substantive Fairness Aspect |
|---|---|---|
| Minister for Immigration v Li | Unreasonableness test | Decision must be reasonable, balanced, and consider relevant info |
| Plaintiff S157/2002 | Limits on privative clauses | Substantive fairness is a core, non-derogable principle |
| Craig v South Australia | Procedural and substantive fairness | Fair outcome as well as fair process required |
| Minister for Immigration v Jia Legeng | Reasonableness and evidence | Genuine engagement with evidence needed |
| Bromley v Minister | Failure to consider risk | Ignoring key evidence causes substantive unfairness |
| Ex parte Lam | Fair exercise of discretion | Discretion must be exercised in good faith and fairness |
| Minister for Aboriginal Affairs v Peko-Wallsend | Relevant and irrelevant considerations | Decision must weigh relevant factors properly |
Conclusion
Substantive fairness is fundamental to Australian administrative law. It ensures that decisions are not only made by a fair process but are also substantively just, reasonable, and proportionate. It guards against arbitrary or capricious outcomes by requiring decision-makers to:
Take into account all relevant factors,
Avoid irrelevant considerations,
Exercise discretion reasonably and in good faith,
Make decisions that a reasonable person could logically justify.
This protects individuals from unfair outcomes and reinforces public confidence in administrative decision-making.
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