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The Unfolding Purpose of Fairness

Published online by Cambridge University Press:  01 January 2025

Matthew Groves
Matthew Groves*
Affiliation:
Law School, La Trobe University
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Abstract

The duty to observe the requirements of procedural fairness is well settled in Australian administrative law. So too is the variable content of that duty and the possibility that it may be limited or excluded by legislation expressed in suitably clear terms. One key aspect of fairness that is not yet clear is its purpose. Why do courts require those who exercise public or official power to act fairly? The question cannot be fully answered by reliance on legislative intent or reference to the common law because recourse to one or both of these possible sources of the duty to act fairly does not necessarily answer why that duty is drawn from the common law or implied as part of statutory interpretation. This article examines recent steps by courts and commentators that suggest an exploration of the purpose of fairness may be beginning to occur.

Type
Article
Information
Federal Law Review , Volume 45 , Issue 4 , December 2017 , pp. 653 - 679
Copyright
Copyright © 2017 The Australian National University

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References

1 Though hard empirical evidence to this effect is not readily available. The most recent detailed statistical survey of judicial review claims in Australia did not provide detail about the different grounds claimed. See Administrative Review Council, ‘Judicial Review in Australia—A Consultation Paper’ (Consultation Paper, 2011) ch 3. The annual reports and related statistical information provided by superior courts that conduct a significant amount of judicial review work in Australia, such as the Federal Court of Australia and the Supreme Courts of Victoria and New South Wales, also do not contain detail about the breakdown of grounds.

2 Lingering questions may remain about whether the better term is ‘natural justice’ or ‘procedural fairness’. Mason J suggested the latter ‘more aptly conveys the flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case’: Kioa v West (1985) 159 CLR 550, 585 (‘Kioa’). I treat the two terms as interchangeable but accept that some subtle differences may remain between them, as explained in Alan, Robertson, ‘Natural Justice of Procedural Fairness?’ (2015) 23 Australian Journal of Administrative Law 155Google Scholar.

3 A position that can largely be traced to the influential judgment of Brennan J in A-G (NSW) v Quin (1990) 170 CLR 1, 35–8.

4 The early common law evolution of these rules is explained in Harry, Woolf, Jeffrey, Jowell, Andrew, Le Sueur and Catherine, Donnelly, De Smiths’ Judicial Review (Sweet & Maxwell, 8th ed, 2013) 346Google Scholar–51. Their adoption in Australia is traced in Ian, Holloway, Natural Justice and the High Court of Australia: A Study in Common Law Constitutionalism (Ashgate, 2002) 11–22Google Scholar.

5 (1606) 6 Co Rep 48B; 77 ER 326.

6 (1615) 11 Co Rep 95b; 77 ER 1271.

7 Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180; 143 ER 414.

8 Ibid 14 CB(NS) 108, 194; 143 ER 414, 420.

9 The others were: Capel v Child (1832) 2 C & J 558; 149 ER 235; Dimes v Grand Junction Canal (1852) 3 HLC 749; 10 ER 301; and Wood v Wood (1874) LR 9 Ex 190.

10 The case was influential in the seminal decision of Kioa v West (1985) 159 CLR 550, 609 (Brennan J). It continues to be cited in the High Court. See, eg, CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 622–3 [368] (Gageler J) (‘CPCF’).

11 Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180, 190; 143 ER 414.

12 Twist v Randwick Municipal Council (1976) 136 CLR 106, 109.

13 R v Small Claims Tribunal; Ex parte Cameron [1976] VR 427, 432. In the case of notice of possible adverse action, English courts used stronger language to describe that requirement as of ‘constitutional importance’: Re Hamilton [1981] AC 1038, 1047 (Lord Fraser).

14 Justice Gageler has noted that this trend continued well into the 1980’s: Stephen, Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92, 95Google Scholar.

15 Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222, which aligned with the finding to this effect of the Privy Council in Ridge v Baldwin [1964] AC 40. This shift overcame an influential earlier rule that natural justice was limited to quasi-judicial decision makers, attributed to R v Electricity Commissioners; Ex parte London Electricity Joint Committee [1924] 1 KB 171.

16 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (company licenced to provide insurance within a state workers’ compensation market held to have sufficient interest that fairness required it be given notice and a hearing before the licence was revoked or not renewed).

17 Kioa v West (1985) 159 CLR 550.

18 Ibid 619 (Brennan J). The High Court put the distinction to final rest in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 353 (‘Offshore Processing Case’).

19 Ibid 617.

20 Acknowledged respectively in Annetts v McCann (1990) 170 CLR 596 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

21 Johns v Australian Securities Commission (1993) 178 CLR 408.

22 Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).

23 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 658 [66] (Gummow, Hayne, Crennan and Bell JJ), citing Kioa v West (1985) 159 CLR 550, 616–7 (Brennan J).

24 Such as the instance analysed in Katie, Miller, ‘Is Privacy the Cost of Centrelink's Automated Debt Notices?’ (2017) 24 Australian Journal of Administrative Law 148Google Scholar.

25 Both criteria are especially important to statutory judicial review because this avenue of review typically includes jurisdictional requirements enabling review of ‘decisions’ that are made ‘under an enactment’. See the definitional requirements of each in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3.

26 His key works were Charles, Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733Google Scholar; Charles, Reich, ‘Individual Rights and Social Welfare: The Emerging Legal Issues’ (1965) 74 Yale Law Journal 1245Google Scholar. Reich's work was cited several times in the landmark case which expanded due process rights in American law: Goldberg v Kelly 397 US 254 (1970) at 262, 265. The relevance of Reich's work to Australian law is explained in Ian, Holloway, ‘Natural Justice and the New Property’ (1999) 25 Monash University Law Review 85Google Scholar.

27 Expounded in W N, Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16Google Scholar.

28 Graham v Sinclair (1918) 25 CLR 102; Australia Football League v Carlton Football Club Ltd [1998] 2 VR 546.

29 Australian Workers’ Union v Bowen [No 2] (1948) 77 CLR 601.

30 General Medical Council v Spackman [1943] AC 627; Hoile v Medical Board of South Australia (1960) 104 CLR 157.

31 Cameron v Hogan (1934) 51 CLR 358. That case treated political parties as a species of voluntary association.

32 An overview of these issues is provided in M, Aronson, M, Groves and G, Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2017) 496–500Google Scholar.

33 See, eg, the grave findings made against a sporting official after a deeply flawed and unfair disciplinary process in Carter v NSW Netball Association [2004] NSWSC 737.

34 Kioa v West (1985) 159 CLR 550, 584 (Mason J), 609–11 (Brennan J).

35 A view taken in James, Allsop, ‘Values in Public Law’ (2017) 91 Australian Law Journal 118, 127Google Scholar. Allsop notes, rightly in my view, that the distinction may have practical relevance to the exercise of non-statutory powers.

36 See, eg, A-G (NSW) v Quin (1990) 170 CLR 1, 57–8 (Dawson J); Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane, and McHugh JJ).

37 This was evident in a series of decisions beginning with Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 89 (Gleeson CJ) 109 (Gaudron and Gummow JJ), 131 (Kirby J) 141–3 (Hayne J) and ending with Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 93 [10] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

38 Kioa v West (1985) 159 CLR 550, 609.

39 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 258–9 [12]–[13] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

40 In the Offshore Processing Case (2010) 243 CLR 319, 352 [74] French CJ, Gummow, Heydon, Hayne, Crennan, Kiefel and Bell JJ stated that it was ‘unnecessary to consider’ if questions remained about the different basis of the duty to act fairly and whether one or the other possible approaches ‘would lead to any different result’.

41 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ).

42 Kioa v West (1985) 159 CLR 550, 584.

43 Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).

44 The relevant statute was the Coroners Act 1920 (WA). The doctrinal changes to fairness in the 70 years between enactment of the Act and its consideration by the High Court were nothing short of momentous.

45 Annetts v McCann (1990) 170 CLR 596, 600 (Mason CJ, Deane and McHugh JJ).

46 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (‘Miah’).

47 Ibid 83–4 [90] (Gaudron J), 95 [131] (McHugh J), 113 [181] (Kirby J). Those judges each held that reference within the procedures to them being a ‘code’ was too weak a reason to find parliamentary intention to exclude the common law rules of fairness.

48 Ibid 84–5 [91]–[96] where Gaudron J noted that the code was better described as a series of inclusive duties rather than exclusive ones, which her Honour held was not indicative of true codification.

49 A further such decision during this period that accepted the possibility of exclusion of fairness is Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 and is discussed below.

50 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (‘S10/2011’).

51 Migration Act 1958 (Cth) ss 48B, 195A, 351 and 417. Similar provisions exist elsewhere in the Act.

52 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 648 [30] (French CJ and Kiefel J). Gummow, Crennan and Bell JJ reached the same view, holding the powers differed ‘radically’ from most others in the Act: 664 [86].

53 Ibid 667–8 [99]–[100]. An analogy was drawn with the procedures considered in South Australia v O’Shea (1987) 163 CLR 378, 410. The key similarity was that both cases involved a senior public official vested with powers exercisable by reference to the public interest.

54 Ibid 655 [93].

55 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514.

56 Maritime Powers Act 2013 (Cth) ss 59–73.

57 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 541–2 [52] (French CJ), 561–3 [127]–[131] (Hayne and Bell JJ), 586 [221]–[224] (Crennan J).

58 Ibid.

59 Ibid 623 [368] (Gageler J), 586 [227] (Crennan J agreeing on this point).

60 Kiefel J hinted at this issue in delicate terms: ibid 606–7 [306] (Kiefel J).

61 The status of the powers considered in CPCF was clarified by subsequent amendments, which expressly provide key parts of the statute are not subject to the rules of natural justice: Maritime Powers Act 2013 (Cth) s 75B (introduced by Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).

62 An example is powers to make quarantine orders, which are usually regarded as exempt from the rues of fairness because the time and procedures required by fairness would make effective quarantine impossible. See, eg, R v Davey [1899] 2 QB 301, 305–6; Pacific Century Production Pty Ltd v Watson (2001) 113 FCR 466, 475, 477–8.

63 (2010) 241 CLR 252.

64 The various rights protected by the principle of legality were listed by Heydon J in Momcolivic v R (2011) 245 CLR 1, 177 [444].

65 (2010) 241 CLR 252, 258–9 [12]–[14] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

66 Ibid 259 [15]. Heydon J reached a broadly similar conclusion without reference to the principle of legality: 282 [85].

67 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 329. The principle has been characterised much the same way in other constitutional structures: Philip, Joseph, ‘The Principle of Legality: Constitutional Innovation’ in Dan, Meagher and Matthew, Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017) 27Google Scholar, 33–4.

68 Phillip, Sales, ‘Rights and Fundamental Rights in English Law’ (2016) 75 Cambridge Law Journal 86, 94Google Scholar.

69 A similar balance is evident in the influential statement of the principle of legality, made by Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131–2.

70 Trevor, RS Allan, ‘The Moral Unity of Public Law’ (2017) 67 University of Toronto Law Journal 1, 23Google Scholar. This reasoning sits comfortably within Allan's wider (and, in my view, highly questionable) argument that the common law provides the ultimate constitutional or doctrinal foundation for the control of authority, whether executive or parliamentary. See, eg, Trevor, RS Allan, The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press, 2013)Google Scholar.

71 Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149.

72 Such as in Annetts v McCann (1990) 170 CLR 596.

73 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (‘Teoh’). Callinan J described Teoh in these terms in Lam (2013) 214 CLR 1, 46 [141].

74 Margaret, Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh's Case and the Internationalisation of Administrative Law’ (1995) 17 Sydney Law Review 204.Google Scholar

75 Matthew, Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ (2008) 32 Melbourne University Law Review 470, 499–500Google Scholar.

76 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 213 CLR 1 (‘Lam’). It should be noted that Mr Lam did not rely directly on Teoh and the government did not invite the High Court to overrule Teoh.

77 (2003) 213 CLR 1, 20–1 [61]–[65], 27–34 [81]–[102] (McHugh and Gummow JJ), 36–8 [116]–[122] (Hayne J), 40–9 [139]–[150] (Callinan J).

78 Gleeson CJ accepted that the expectations created by decision-makers can influence the practical content of fairness in a particular case: ibid 12 [33].

79 Ibid 14 [37].

80 Ibid 14 [38].

81 WZARH v Minister for Immigration and Border Protection (2015) 256 CLR 326 (‘WZARH’).

82 Kiefel, Bell and Keane JJ made stronger remarks against use of the legitimate expectation, which they noted ‘may well distract from the real question’ about fairness: ibid 335 [30]. Gageler and Gordon JJ made similar remarks, though in briefer terms, to caution against the ‘confusion’ that reference to legitimate expectations could introduce: 343 [61].

83 Ibid 335 [30].

84 Ibid 343 [61].

85 Ibid 342–4 [58]–[64].

86 Ibid 340 [46].

87 David, Dyzenhaus, ‘The Politics of the Question of Constituent Power’ in Martin, Loughlin and Neil, Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2008) 135Google Scholar.

88 A key spark for this was Lord Aitkin's judgement in Liversidge v Anderson [1942] AC 206 (holding that an unstructured discretionary power to detain people on grounds if an official formed a ‘belief’ should be read as requiring reasonableness in that belief, which greatly confined the power and rendered it capable of judicial oversight). Similar reasoning was adopted in Roncarelli v Duplessis [1959] SCR 121, 140; Reade v Smith [1959] NZLR 996, 1001. Judicial rejection of absolute discretionary powers is now regularly stated in Australia. See, eg, George v Rockett (1990) 170 CLR 104, 112; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 503–4 [69]–[70]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 512 [99]–[102]; Wootton v Queensland (2012) 246 CLR 1, 10 [10]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, 591 [34].

89 Alan, Brudner, Constitutional Goods (Oxford University Press, 2004) 225–30Google Scholar.

90 One continued point of disagreement is whether administrative law is being overwhelmed by human rights or merely accommodating them as part of a holistic vision of administrative justice. Competing analysis of this is given in Thomas, Poole, ‘The Reformation of English Administrative Law’ (2009) 68 Cambridge Law Journal 142Google Scholar and Jason, Varuhas, ‘The Reformation of English Administrative Law? “Rights” Rhetoric and Reality’ (2013) 72 Cambridge Law Journal 369Google Scholar.

91 This mixture is harder to trace given the discreet extra-judicial work of judges in reforms to judicial review. See, eg, the investigation of the origins of changes to modern judicial review doctrine in the UK and ‘behind the scenes’ work by Lord Diplock in TT, Arvind and Lindsay, Stirton, ‘The Curious Origins of Judicial Review’ (2017) 133 Law Quarterly Review 91Google Scholar.

92 Mark, Aronson, ‘Public Law Values in the Common Law’ in Mark, Elliott and David, Feldman (eds), Cambridge Companion to Public Law (Cambridge University Press, 2015) 134Google Scholar, 145.

93 See, eg, Jeremy, Waldron, ‘Judges as Moral Reasoners’ (2009) 7 International Journal of Constitutional Law 13Google Scholar and ‘The Core Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346.

94 This can be seen as an example of what Allan labels the ‘defensible compromise’ the common law may reach when the legislative drafter cannot: Trevor, RS Allan, ‘The Moral Unity of Public Law’ (2017) 67 University of Toronto Law Journal 1, 7Google Scholar. Allan appears unaware that compromises are inevitably influenced by the very legislation judges and scholars may think has not reached that compromise position.

95 Stephen, Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) Australian Journal of Administrative Law 92, 104Google Scholar.

96 Ibid 104–5.

97 Allsop CJ took this view in Allsop, above n 35, 120.

98 A-G (NSW) v Quin (1990) 170 CLR 1.

99 Ibid 35.

100 Ibid 35–6.

101 See, eg, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 160 [25] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 619 [19] (Gummow ACJ and Kiefel J).

102 And, as the contribution of Robin Creyke to this special issue makes clear, the distinction between judicial and merits review is more subtle and perhaps less than is widely acknowledged.

103 See, eg, Administrative Appeals Tribunal Act 1975 (Cth) s 43(1); Victorian Civil and Administrative Review Tribunal Act 1998 (Vic) s 51(1).

104 Brennan J explained this and other features of merits review while President of the AAT: Gerard, Brennan, ‘Anatomy of an Administrative Decision’ (1980) 9 Sydney Law Review 1, 4–5Google Scholar.

105 Robert, French, ‘Administrative Law in Australia: Themes and Values Revisited’ in Matthew, Groves (ed), Modern Australian Administrative Law—Concepts and Context (Cambridge University Press, 2014) 34Google Scholar.

106 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59, 98 [170].

107 A criticism made in Groves, above n 75, 511–14.

108 Lam (2003) 214 CLR 1.

109 Ibid 23 [72]–[73] (McHugh and Gummow JJ).

110 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 206 [81] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).

111 Aronson, Groves and Weeks, above n 32, 530–624.

112 International Finance Trust Co Ltd v Crime Commission (NSW) (2009) 240 CLR 319, 380 [143].

113 Osborn v Parole Board [2014] AC 1115, 1149 [67] (Lord Reed). Similar points were made decades earlier in Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, 23 (McHugh JA).

114 Lord, Millett, ‘The Right to Good Administration in European Law’ [2002] Public Law 309Google Scholar, 312–13.

115 The differing rationales for fairness were long described as instrumental and non-instrumental but the simpler terminology of instrumental and intrinsic was used by Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 107 [186].

116 Osborn v Parole Board [2014] AC 1115, 1150 [71], citing Lon Fuller, The Morality of Law (revised ed, 1969) 81; Tom, Bingham, The Rule of Law (Penguin Books, 2010) ch 6Google Scholar.

117 British courts stress the value of consistency in the behaviour of administrative officials much more than their Australian counterparts. See, eg, Professor Craig's summation of principles governing legitimate expectations, which repeatedly stresses the value of consistency: P P, Craig, Administrative Law (Sweet & Maxwell, 8th ed, 2016) 689Google Scholar.

118 Jeffrey, Jowell, ‘The Rule of Law’ in Jeffrey, Jowell, Dawn, Oliver and Colm, O’Cinneide (eds) The Changing Constitution (Oxford University Press, 8th ed, 2015) 11, 27Google Scholar.

119 An important American work was Jerry, Mashaw, Due Process in the Administrative State (Yale University Press, 1985)Google Scholar.

120 Trevor, RS Allan, ‘Procedural Fairness and the Duty of Respect’ (1998) 18 Oxford Journal of Legal Studies 497Google Scholar; Trevor, RS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001) 77–87Google Scholar.

121 [2014] AC 1115. Boughey has noted that dignitarian principles have a longer history in Canadian cases but recourse to them has been uneven: Janina, Boughey, Human Rights and Judicial Review in Australia and Canada—The Newest Despotism? (Hart Publishing, 2017) 146–7Google Scholar.

122 [2014] AC 1115, 1149 [68].

123 Ibid, quoting Jeremy, Waldron, ‘How Law Protects Human Dignity’ (2012) 71 Cambridge Law Journal 200Google Scholar, 210 (Lord Reed quoted the unpublished version of this paper).

124 International Finance Trust Co Ltd v Crime Commission (NSW) (2009) 240 CLR 319, 381 [144] (Heydon J).

125 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, 2 [5] (Allsop CJ). Allsop CJ raised similar issues for unreasonableness in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, 5 [9].

126 Gageler J accepted this view in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 107 [186].

127 Osborn v Parole Board [2014] AC 1115, 1149 [68], 1153 [82].

128 Chief Justice Robert French, ‘Procedural Fairness—Indispensable to Justice?’ (Speech delivered at the Sir Anthony Mason Lecture, University of Melbourne Law School Law Student's Society, 7 October 2010) 22–3. His Honour made a similar connection between the values of the community and those inherent in administrative review in French, above n 106, 25, 37.

129 This appeal to commonality of values falls well of the reliance of some legal theorists upon notions of a shared morality, which is criticised in Lisa, Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017) 186–7Google Scholar.

130 A useful overview of how commentators bandied about the label of judicial activism without recourse to actual evidence when discussing recent appointments to the High Court is given in Tanya, Josev, The Campaign Against The Courts (Federation Press, 2017) 195–200Google Scholar.

131 It is also quite at odds with the fairly narrow range of issues of which judicial notice may be taken. See, eg, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.

132 Roy Morgan Research, 64% of Australians Want Asylum Seekers Arriving by Boat to be Returned & Told to Apply Through Normal Refugee Channels (22 July 2010) Roy Morgan <http://www.roymorgan.com/findings/finding-4536-201302250307>.

133 Martin, Loughlin, ‘Procedural Fairness: A Study of the Crisis in Administrative Law Theory’ (1978) 28 University of Toronto Law Journal 215, 238Google Scholar.

134 David, Crump ‘How Do the Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy’ (1995) 19 Harvard Journal of Law and Public Policy 795, 804Google Scholar.

135 Sales, above n 68, 96–7.

136 Ibid 93, citing Osborn v Parole Board [2014] AC 1115; Bank Mellat v HM Treasury [Nos 1 and 2] [2014] AC 700; Kennedy v Charity Commission [2015] AC 455; Pham v Secretary of State for the Home Department [2015] 1 WLR 1591; R (Faulkner) v Secretary of State for Justice [2013] 2 AC 254.

137 John v Rees [1970] Ch 345, 402. Heydon J cited these cautionary remarks in Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44, 95 [155] and International Finance Trust Co Ltd v Crime Commission (NSW) (2009) 240 CLR 319, 381 [145].

138 Secretary of State for the Home Department v AF [No 3] [2010] 2 AC 269, 355 [63].

139 Osborn v Parole Board [2014] AC 1115, 1150 [70].

140 See, eg, [England], Prison Disturbances, April 1990: Report of an Inquiry by the Rt Hon Lord Justice Woolf (Parts I and II) and his Honour Judge Tumin (Part II) Her Majesty's Stationery Office, 1991) 1456 para 9.24 (describing the ‘lack of justice’ as a recurring theme in the complaints of prisoners.

141 See, eg, Derrick, Franke, David, Bierie and Doris, Layton Mackenzie, ‘Legitimacy in Corrections: A Randomized Experiment Comparing Boot Camp With A Prison’ (2010) 9 Criminology and Public Policy 89Google Scholar; Karin, Bieijersbergen, Anja, Dirkzwager, Veroni, Eichelsheim, Peter, van der Laan and Paul, Nieuwbeerta, ‘Procedural Justice and Prisoners’ Mental Health Problems: A Longitudinal Study’ (2014) 24 Criminal Behaviour and Mental Health 100Google Scholar.

142 John, Thibaut and Laurens, Walker, Procedural Justice: A Psychological Analysis (Erlbaum Press, 1975)Google Scholar; John, Thibaut and Laurens, Walker, ‘A Theory of Procedure’ (1978) 66 California Law Review 541Google Scholar.

143 Robert, Folger, David, Rosenfield, Janet, Grove and Louise, Corkran, ‘Effects of “Voice” and Peer Opinions on Responses to Inequity’ (1979) 37 Journal of Personality and Social Psychology 2253Google Scholar.

144 Ibid. The ‘fair process effect’ was coined in Folger et al.

145 E, Allan Lind, Carol, Kulik, Maureen, Ambrose, Maria V, de Vera Park, ‘Individual and Corporate Dispute Resolution: Using Procedural Fairness as a Decision Heuristic’ (1993) 38 Administrative Science Quarterly 224Google Scholar.

146 This central finding of the fair process studies was described as ‘counterintuitive’ by one of its leading scholars: Steven, Blader and Tom, Tyler, ‘A Four-Component Model of Procedural Justice: Defining the Meaning of a “Fair” Process’ (2003) 29 Personality and Social Psychology Bulletin 747, 747Google Scholar.

147 Tom, Tyler, Why People Obey the Law (Yale University Press, 1990)Google Scholar.

148 Kees, van den Bos, Henk, Wilke and E Allan, Lind, ‘When Do We Need Procedural Fairness? The Role of Trust in Authority’ (1998) 75 Journal of Personality and Social Psychology 1449Google Scholar.

149 See Kees, van den Bos, ‘Humans Making Sense of Alarming Conditions: Psychological Insight into the Fair Process Effect’ in Russell, Cropanzano and Maureen, Ambrose (eds), The Oxford Handbook of Justice in the Workplace (Oxford University Press, 2015)Google Scholar.

150 The other, wordier, name for the project is ‘The Informal Proactive Approach Model’. The study has a British counterpart but results from this study have not been yet made public.

151 Kees, van den Bos, Lynn, van der Velden and E Allan, Lind, ‘On the Role of Perceived Procedural Justice in Citizens’ Reactions to Government Decisions and the Handling of Conflicts’ (2014) 10 Utrecht Law Review 1Google Scholar.

152 André, Verburg and Ben, Schueler, ‘Procedural Justice in Dutch Administrative Court Proceedings’ (2014) 10 Utrecht Law Review 56Google Scholar.

153 Ibid 71.

154 Ibid 66. That assertion is all the more striking because Verburg is a part time academic and part time judge in the Administrative Court.

155 Whether this issue can be truly measured is debatable. One former Chief Justice of Australia wondered whether public confidence was ultimately a ‘theoretical construct’ to which judges appeal in order to objectify our reasoning’: Hon Murray Gleeson ‘Public Confidence in the Courts’ (speech delivered at the National Judicial College of Australia, Canberra, 9 February 2007) 4–5 <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_9feb07.pdf>. Gleeson is clearly right that notions of public confidence in the law, judges and courts are protean and do not have a single sense.

156 Assessments often made in brutal terms on Rate My Professors <http://www.ratemyprofessors.com>.

157 See, eg, Trip Advisor <https://www.tripadvisor.com.au/Hotels>.

158 Reviews.com <https://www.reviews.com/cat-food/>. This author confesses contributions to that site.

159 An example is the need for courts to engage in social media to communicate their decisions and processes to the wider world. See George, Williams and Alysia, Blackham, ‘Social Media and Court Communication’ [2015] Public Law 403Google Scholar.