118-541: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank , 527 U.S. 627 (1999), was a decision by the Supreme Court of the United States relating to the doctrine of sovereign immunity . Florida Prepaid was a companion case to the similarly named (but not to be confused) College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board , 527 U.S. 666 (1999). Where College Savings Bank
236-558: A case of necessity, and where that occurs the objection of interest cannot prevail". The court normally requests that an objection be taken as soon as the prejudiced party has knowledge of the bias. If an objection is not raised and proceedings are allowed to continue without disapproval, it will be held that the party has waived its right to do so. In Dimes , the judges advised the House of Lords that Lord Cottenham's pecuniary interest made his judgment not void , but voidable . This advice
354-408: A decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly. The right to
472-471: A difference to the facts on which the case was based. Giving judgment in the Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral hearing may not always be the "very pith of the administration of natural justice". It has also been suggested that an oral hearing is only required if issues concerning deprivations of legal rights or legally protected interests arise. When deciding how
590-415: A fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe,
708-444: A fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed. However, when
826-500: A form of abuse, as he had been treated as if he did not matter. As Lord Mustill famously held in R v Secretary of State for the Home Department Ex p Doody (1993): "Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer." It has been suggested that
944-576: A hearing requires the balancing of multiple polycentric issues such as natural justice and the protection of confidential information for national security reasons, both the concerns of public security and the right to a fair trial must be adequately met. It was held by the House of Lords in AF , applying the decision of the Grand Chamber of the European Court of Human Rights A v United Kingdom (2009), that
1062-479: A holistic process" with no need to draw a sharp distinction between them. In contrast, in Re Shankar Alan s/o Anant Kulkarni (2006), Judicial Commissioner Sundaresh Menon thought that there was a real difference between the reasonable suspicion and real likelihood tests. In his opinion, suspicion suggests a belief that something that may not be provable could still be possible. Reasonable suggests that
1180-779: A house which the DHA had leased to provide housing to members of the Australian Defence Force (ADF). Under the NSW Residential Tenancies Act 1997 , Mr. Henderson sought orders from the Residential Tenancies Tribunal to enter the premises for the purposes of conducting inspections. In response, DHA claimed that as a Commonwealth agency the legislation of NSW did not apply to it and further sought writs of prohibition attempting to restrain Mr. Henderson from pursuing
1298-467: A judge in his own cause"), and the right to a fair hearing ( audi alteram partem , or "hear the other side"). The requirements of natural justice or a duty to act fairly depend on the context. In Baker v Canada (Minister of Citizenship and Immigration) (1999), the Supreme Court of Canada set out a list of non-exhaustive factors that would influence the content of the duty of fairness, including
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#17328560726671416-434: A lawyers' disciplinary committee was to observe and not cast a vote or make a judgment. Thus, the appellant had not suffered undue prejudice. On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at a hearing, the other party must also be given the same opportunity. In addition, when a tribunal decides a case on a basis not raised or contemplated by the parties, or decides it without regarding
1534-422: A legislative and general nature do not have a duty to act fairly, while those that carry out acts of a more administrative and specific nature do. Preliminary decisions will generally not trigger the duty to act fairly, but decisions of a more final nature may have such an effect. Whether a duty to act fairly applies depends on the relationship between the public authority and the individual. No duty exists where
1652-409: A lesser extent the state) can be a defendant or subject of court proceedings, nor in most equivalent forums such as under arbitration awards and tribunal awards/damages. Immunity from enforcement means that even if a person succeeds in any way against their sovereign or state, they and the judgment may find themselves without means of enforcement. Separation of powers or natural justice coupled with
1770-506: A lieutenant governor the same benefits as the monarch and that, in her case, royal immunity would only apply to actions involving official state functions, not personal ones. She was eventually found guilty and sentenced to 18 months in jail, but was granted conditional release after serving six months. China has consistently claimed that a basic principle of international law is for states and their property to have absolute sovereign immunity. China objects to restrictive sovereign immunity. It
1888-408: A person accused of terrorism against whom a control order has been issued must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate . If this requirement is satisfied, a fair hearing can be conducted without detailed disclosure of confidential information that might compromise national security. On the facts of the case,
2006-441: A person to claim the right to adequate notification of the date, time, place of the hearing as well as detailed notification of the case to be met. This information allows the person adequate time to effectively prepare his or her own case and to answer the case against him or her. In Cooper v Wandsworth , Chief Justice William Erle went so far as to state that the lack of notice and hearing afforded to Cooper could be said to be
2124-534: A political status other than a totalitarian state dictates there be broad exceptions to immunity such as statutes which expressly bind the state (a prime example being constitutional laws ) and judicial review . Sovereign immunity of a state entity may be waived. A state entity may waive its immunity by: There is no automatic Crown immunity in Australia, and the Australian Constitution does not establish
2242-456: A reasonable member of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger of this on the facts. The difference is that the driver behind this test is the strong public interest in ensuring public confidence in the administration of justice. As of September 2011, the Court of Appeal of Singapore had not yet expressed a view as to whether
2360-405: A reasonable opportunity of being heard. However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face—"Natural justice does not generally demand orality". It has been suggested that an oral hearing will almost be as good as useless if the affected person has no prior knowledge of the case. In Lloyd v McMahon (1987), an oral hearing did not make
2478-673: A similar type of protection afforded to many high-ranking civil servants and politicians in Spain. The legislation stipulates that all outstanding legal matters relating to the former king be suspended and passed "immediately" to the supreme court. By the Constitution of Sri Lanka , the President of Sri Lanka has sovereign immunity (during the period of office). Chapter 5, Article 8 of the Swedish Constitution states: "The King or Queen who
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#17328560726672596-486: A special advocate was not permitted further contact with an applicant or his ordinary legal representatives except with permission of the Special Immigration Appeals Commission (SIAC) after viewing confidential (or "closed") materials. The House of Lords recognized that although a special advocate's usefulness is stymied somewhat from having no further instructions after viewing such materials, if
2714-527: A state of unfettered immunity of the Crown in respect of the states and the Commonwealth. The Constitution of Australia establishes matters on which the states and the Commonwealth legislate independently of each other; in practice this means the states legislate on some things and the Commonwealth legislates on others. In some circumstances, this can create ambiguity as to the applicability of legislation where there
2832-495: A state's unlawful use of their intellectual property." This article related to the Supreme Court of the United States is a stub . You can help Misplaced Pages by expanding it . Sovereign immunity Philosophers Works Sovereign immunity , or crown immunity , is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution , strictly speaking in modern texts in its own courts. State immunity
2950-413: Is inviolable ; his ministers are accountable." According to the constitution of Bhutan, the monarch is not answerable in a court of law for his or her actions. Canada inherited the common law version of Crown immunity from British law. However, over time, the scope of Crown immunity has been steadily reduced by statute law. As of 1994, section 14 of Alberta's Interpretation Act states, "no enactment
3068-506: Is Head of State cannot be prosecuted for his or her actions. Nor can a Regent be prosecuted for his or her actions as Head of State." This only concerns the King as a private person, since he does not appoint the government, nor do any public officials act in his name. It does not concern other members of the Royal Family, except in such cases as they are exercising the office of Regent when the King
3186-408: Is a similar, stronger doctrine, that applies to foreign courts. Sovereign immunity is the original forebear of state immunity based on the classical concept of sovereignty in the sense that a sovereign could not be subjected without his or her approval to the jurisdiction of another. In constitutional monarchies , the sovereign is the historical origin of the authority which creates the courts. Thus
3304-430: Is actually established that a decision-maker was prejudiced in favour of or against a party. However, in practice, the making of such an allegation is rare as it is very hard to prove. One form of imputed bias is based on the decision-maker being a party to a suit, or having a pecuniary or proprietary interest in the outcome of the decision. Once this fact has been established, the bias is irrebuttable and disqualification
3422-525: Is automatic—the decision-maker will be barred from adjudicating the matter without the need for any investigation into the likelihood or suspicion of bias. A classic case is Dimes v Grand Junction Canal (1852), which involved an action between Dimes, a local landowner, and the proprietors of the Grand Junction Canal , in which the Lord Chancellor , Lord Cottenham , had affirmed decrees made to
3540-477: Is binding on His Majesty or affects His Majesty or His Majesty's rights or prerogatives in any manner, unless the enactment expressly states that it binds His Majesty." However, in more recent times "all Canadian provinces ... and the federal government (the Crown Liability Act ) have now rectified this anomaly by passing legislation which leaves the Crown liable in tort as a normal person would be. Thus,
3658-578: Is held that a state can waive its immunity by voluntarily stating so, but that should a government intervene in a suit (e.g. to make protests), it should not be viewed as waiver of immunity. Chinese state-owned companies considered instrumental to the state have claimed sovereign immunity in lawsuits brought against them in foreign courts before. China's view is that sovereign immunity is a lawful right and interest that their enterprises are entitled to protect. Some examples of Chinese state-owned companies that have claimed sovereign immunity in foreign lawsuits are
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3776-405: Is met as long as the court is satisfied that there is a sufficient degree of possibility of bias. Although this a lower standard than satisfaction on a balance of probabilities , this is actually directed at mitigating the sheer difficulty of proving actual bias, especially given its insidious and often subconscious nature. The reasonable suspicion test, however, is met if the court is satisfied that
3894-432: Is needed for an effective hearing given the subject matter, bearing in mind the consequences of such a denial. In R v Secretary of State for Home Department, ex parte Tarrant (1983), Webster J. set out six factors to be considered when deciding whether to allow representation by counsel, namely: It has also been suggested that where a tribunal hearing concerns the individual's reputation or right to livelihood, there
4012-535: Is no clear automatic Crown immunity or lack of it; as such there is a rebuttable presumption that the Crown is not bound by a statute, as noted in Bropho v State of Western Australia . The Crown's immunity may also apply to other parties in certain circumstances, as held in Australian Competition and Consumer Commission v Baxter Healthcare . Article 88 of the Constitution of Belgium states: "The King's person
4130-403: Is no clearly established Crown immunity. The Australian Constitution does however, in s. 109 , declare that, "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." Based on this, depending on the context of application and whether a particular statute infringes on the executive powers of
4248-455: Is not wrong in the context of a judicial act under review, where the judgment will be held valid unless reversed on appeal. However, in the cases of administrative acts or decisions under judicial review, the court can only intervene on the grounds of ultra vires , hence making the judgment void. Lord Esher said in Allison v General Council of Medical Education and Registration (1894) that
4366-507: Is personally immune from prosecution for acts committed by government ministers in the King's name, according to Title II, Section 56, Subsection 3 of the Spanish Constitution of 1978 . The person of the King is inviolable and shall not be held accountable. His acts shall always be countersigned in the manner established in section 64. Without such countersignature they shall not be valid, except as provided under section 65(2). At
4484-417: Is sought in the foreign court in relation to an application to enforce a foreign judgment or arbitral award, or when execution is sought against assets in the foreign state. This means that sovereign states are absolutely immune to the jurisdiction of Hong Kong courts, including in commercial claims, unless the state waives its immunity. In order to waive immunity, there must be express, unequivocal submission to
4602-495: Is that the emphasis on the court's view of the facts gives insufficient emphasis to the perception of the public. These criticisms were addressed by the House of Lords in Porter v Magill (2001). The Court adjusted the Gough test by stating it to be "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal
4720-432: Is the degree of suspicion which would provide the grounds on which a decision should be set aside for apparent bias. Currently, cases from various jurisdictions apply two different tests: "real likelihood of bias" and "reasonable suspicion of bias". The real likelihood test centres on whether the facts, as assessed by the court, give rise to a real likelihood of bias. In R v Gough (1993), the House of Lords chose to state
4838-455: Is the degree to which a particular event is not likely or possible Menon J.C. also disagreed with both Lord Goff in Gough and Phang J.C. in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the judge thinks there is a sufficient possibility of bias was "a very significant point of departure". The real likelihood test
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4956-457: Is thought to have given the judiciary the flexibility it needed to intervene in cases of judicial review. The mere fact that a decision-maker is conferred wide discretion by law is not reason enough for a weakening of the requirements of natural justice. In the United Kingdom context, this is demonstrated by Ahmed v H.M. Treasury (No. 1) (2010). The Treasury had exercised powers to freeze
5074-411: Is unable to serve. It is a disputed matter among Swedish constitutional lawyers whether the article also implies that the King is immune from lawsuits in civil cases which do not involve prosecution. Natural justice In English law , natural justice is technical terminology for the rule against bias ( nemo iudex in causa sua ) and the right to a fair hearing ( audi alteram partem ). While
5192-659: The Aviation Industry Corporation of China (AVIC) and China National Building Material . In 2011, the Hong Kong Court of Final Appeal ruled that absolute sovereign immunity applies in Hong Kong, as the Court found that Hong Kong, as a Special Administrative Region of China, could not have policies on state immunity that were inconsistent with China. The ruling was an outcome of the Democratic Republic of
5310-437: The Constitution of Iceland the president can only be held accountable and be prosecuted with the consent of parliament. According to Article 361 of the Constitution of India no legal action in the court of law can be taken against President of India and the governors of states of India as long as that person is holding either office. However, they can be impeached and then sued for their actions. In Byrne v. Ireland ,
5428-587: The Emperor because he is "the symbol of the State and of the unity of the people". In Malaysia , an amendment to the constitution in 1993 made it possible to bring proceedings against the king or any ruler of a component state in the Special Court. This was previously impossible because every ruler of Malaysia was stated to be protected from being brought to court due to their royal status. Since 1848, article 42 of
5546-536: The Singapore courts . It has been suggested that the differences between the two tests are largely semantic and that the two tests operate similarly. In Locabail , the judges stated that in a large proportion of the cases, application of the two tests would lead to the same outcome. It was also held that "[p]rovided that the court, personifying the reasonable man, takes an approach which is based on broad common sense, and without inappropriate reliance on special knowledge,
5664-590: The Supreme Court of Ireland declared that sovereign immunity had not survived the creation of the Irish Free State in 1922, and that accordingly the state could be sued for and held vicariously liable for the acts and omissions of its servants and agents. According to the Constitution , a President of the Italian Republic is not accountable, and is not responsible for any act of their office, unless they have committed high treason or attempted to subvert
5782-567: The honor and prestige of the President (Art. 278), and until 2006 it was an offence to publicly give the President responsibility for actions of the Government (Art. 279 – abrogated ). Article 17 of the Constitution of Japan states: "Every person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through illegal act of any public official." The State Redress Act ( 国家賠償法 , kokka baishōhō )
5900-488: The monarch cannot be prosecuted or sued in his or her personal capacity, but this immunity does not extend to the state as such. Neither does immunity extend to the monarch in his capacity as an owner or stakeholder in real property, or as an employer, provided that the suit does not allege personal responsibility for the monarch. Article XVI, Section 3 of the 1987 Constitution currently in force states: "The State may not be sued without its consent." The Spanish monarch
6018-425: The "natural rights" philosophy of the 18th century. Whilst the term natural justice is often retained as a general concept, in jurisdictions such as Australia, and the United Kingdom, it has largely been replaced and extended by the more general "duty to act fairly". Natural justice is identified with the two constituents of a fair hearing, which are the rule against bias ( nemo iudex in causa sua , or "no man
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#17328560726676136-472: The Commonwealth, subject to the s. 109 test of inconsistency. A landmark case which set a precedent for challenging broad Crown immunity and established tests for the applicability of state laws on the Commonwealth was Henderson v Defence Housing Authority in 1997. This case involved the arbitration of a dispute between Mr. Henderson and the Defence Housing Authority (DHA). Mr. Henderson owned
6254-559: The Congo v FG Hemisphere Associates case in 2011. The Democratic Republic of the Congo and its state-owned electricity company Société nationale d'électricité (SNEL) defaulted on payments of a debt owed to an energy company, Energoinvest . During arbitration, Energoinvest was awarded damages against the Congolese government and SNEL. This was reassigned by Energoinvest to FG Hemisphere Associates LLC. FG Hemisphere subsequently learned that
6372-492: The Congolese government entered into a separate joint venture with Chinese companies later, in which the Congolese government would be paid US$ 221 million in mining entry fees. As a result, FG Hemisphere applied to collect these fees in order to enforce the earlier arbitral award. The Congolese government asserted sovereign immunity in the legal proceedings. This was eventually brought to the Hong Kong Court of Final Appeal, when
6490-501: The Congolese government fought to overturn an earlier Court of Appeal decision which had ruled that: The Hong Kong Court of Final Appeal ruled 3:2 that the Congolese government had not waived its immunity in the Hong Kong courts, and that as a Special Administrative Region of China, Hong Kong could not have policies on state immunity that were inconsistent with China's. Therefore, the doctrine of sovereign immunity applied in Hong Kong should be absolute, and may be invoked when jurisdiction
6608-571: The Constitution, as stated in Article 90: The President of the Republic is not responsible for the actions performed in the exercise of presidential duties, except in the case of high treason or violation of the Constitution. In such cases, the President may be impeached by Parliament in joint session, with an absolute majority of its members. The Italian Penal Code makes it a criminal offence to insult
6726-584: The Dominion." It has also been a constitutional convention that the Crown in right of each province is immune from the jurisdiction of the courts in other provinces. However, this is now in question. Lieutenant governors do not enjoy the same immunity as the sovereign in matters not relating to the powers of the office. In 2013, the Supreme Court refused to hear the request of former Lieutenant Governor of Quebec Lise Thibault to have charges against her dropped. She
6844-594: The Dutch constitution states: "The king is immune from prosecution; the ministers are responsible". Section 308 of the Nigerian constitution of 1999 provides immunity from court proceedings, i.e., proceedings that will compel their attendance in favour of elected executive officers, namely the President and his vice and the governors of the states and the deputies. This immunity extends to acts done in their official capacities so that they are not responsible for acts done on behalf of
6962-468: The King, or to whom He to that decrees." The president of the Republic of Finland has immunity from prosecution according to Article 113 of the Constitution, which applies to his official activities. If he is suspect of treason, treason or a crime against humanity in the course of his official duties, the parliament can, with a 3 ⁄ 4 majority, decide to bring charges to the national court. The president cannot be charged for other crimes committed in
7080-579: The SIAC decides to issue a control order predominantly on the basis of non-confidential (or "open") materials, an applicant cannot be regarded as having been denied an opportunity to challenge the reasonableness of the government's beliefs and suspicions about him. If the evidence against the applicant is largely closed but allegations contained in open material are sufficiently specific, an applicant should be able to provide his legal representatives and special advocate with information to refute it (such as an alibi , if
7198-759: The United Kingdom held that since the Al-Qaida Order made no provision for basic procedural fairness, it effectively deprived people designated under the order the fundamental right of access to a judicial remedy and hence was ultra vires the power conferred by the United Nations Act 1946 for the making of the Order. The right to a fair hearing is also referred to in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms , which states: In
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#17328560726677316-442: The United Kingdom prior to Ridge v Baldwin (1963), the scope of the right to a fair hearing was severely restricted by case law following Cooper v Wandsworth Board of Works (1863). In R v Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. (1923), Lord Atkin observed that the right only applied where decision-makers had "the duty to act judicially". In natural justice cases this dictum
7434-493: The adjudicator has the discretion to decide if the hearing should proceed. In Ridge v Baldwin , a chief constable succeeded in having his dismissal from service declared void as he had not been given the opportunity to make a defence. In another case, Chief Constable of the North Wales Police v Evans (1982), a chief constable required a police probationer to resign on account of allegations about his private life which he
7552-468: The adjudicator's findings. There is no inherent common law right to legal representation before a domestic tribunal. A tribunal has the discretion to admit either a legally qualified or unqualified counsel to assist the person appearing before it, based on the facts of the case. When assessing whether a party should be offered legal assistance, the adjudicator should first ask whether the right to be heard applies, and, secondly, whether counsel's assistance
7670-598: The appellants' financial assets and economic resources on the ground that it reasonably suspected the appellants were or might be persons who had committed, attempted to commit, participated in or facilitated the commission of terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 made under the United Nations Act 1946 . The Supreme Court of
7788-415: The automatic disqualification rule, "unless plainly required to give effect to the important underlying principles upon which the rule is based". Apparent bias is present where a judge or other decision-maker is not a party to a matter and does not have an interest in its outcome, but through his or her conduct or behaviour gives rise to a suspicion that he or she is not impartial. An issue that has arisen
7906-429: The basic concept of impartiality, and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially. A public authority has a duty to act judicially whenever it makes decisions that affect people's rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions. The basis on which impartiality operates is the need to maintain public confidence in
8024-419: The belief cannot be fanciful. Here the issue is whether it is reasonable for the one to harbour the suspicions in the circumstances even though the suspicious behaviour could be innocent. On the other hand, likelihood points towards something being likely, and real suggests that this must be substantial rather than imagined. Here, then, the inquiry is directed more towards the actor than the observer. The issue
8142-460: The case are cited repeatedly in subsequent patent cases, and criticized. Justice Stephen Breyer , in Active Liberty (Federalism), mentions the case as example of potentially overreaching or counterproductive restriction of federal authority to "create uniform individual remedies under legislation dealing with nationwide problems—for example, private civil damages actions for citizens injured by
8260-425: The cases against them, a fair opportunity to answer them, and the opportunity to present their own cases. Besides promoting an individual's liberties, the right to a fair hearing has also been used by courts as a base on which to build up fair administrative procedures. It is now well established that it is not the character of the public authority that matters but the character of the power exercised. However, in
8378-460: The close connection between AICL and AI presented Lord Hoffmann with an interest in the outcome of the litigation. Even though it was non-pecuniary, the Law Lords took the view that the interest was sufficient to warrant Lord Hoffmann's automatic disqualification from hearing the case. In Locabail (UK) Ltd v Bayfield Properties Ltd (1999), the Court of Appeal warned against any further extension of
8496-573: The court held that the Act's abrogation of States' sovereign immunity was invalid. Congress could only abrogate sovereign immunity pursuant to its powers under § 5 of the Fourteenth Amendment and not Article I (see Fitzpatrick v. Bitzer ; Seminole Tribe of Florida v. Florida ). Applying the § 5 test provided in City of Boerne v. Flores , the validity of the Act could not be sustained. The results of
8614-546: The court ruled that the DHA was bound by the NSW Act on the basis that the NSW Act did not limit, deny or restrict the activities of the DHA but sought to regulate them, an important distinction which was further explained in the rulings of several of the justices. It was ruled that the NSW Act was one of general application and therefore the Crown (in respect of the Commonwealth) could not be immune from it, citing other cases in which
8732-450: The courts had no power to compel the sovereign to be bound by them as they were created by the sovereign for the protection of his or her subjects. This rule was commonly expressed by the popular legal maxim rex non potest peccare , meaning "the king can do no wrong". There are two forms of sovereign immunity: Immunity from suit means that neither a sovereign/head of state in person nor any in absentia or representative form (nor to
8850-581: The decision-maker's interest in the decision is not pecuniary but personal. This was established in the unprecedented case of R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No.2) (1999). In an appeal to the House of Lords , the Crown Prosecution Service sought to overturn a quashing order made by the Divisional Court regarding extradition warrants made against
8968-424: The determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... Article 6 does not, however, replace the common law duty to ensure a fair hearing . It has been suggested that Article 6 alone is not enough to protect procedural due process, and only with
9086-452: The development of a more sophisticated common law will the protection of procedural due process extend further into the administrative machine. Nonetheless, Article 6 supplements the common law. For example, the common law does not impose a general duty to give reasons for a decision, but under Article 6(1) a decision-maker must give a reasoned judgment so as to enable an affected individual to decide whether to appeal. Natural justice allows
9204-421: The disclosure of the evidence will make no difference to the applicant. Secondly, resentment will be felt by the person and his family and friends if sanctions are imposed without any proper explanation of the grounds and when, due to the non-disclosure of information, the person is put in a position where he is unable to properly defend himself. As Lord Phillips put it, "if the wider public are to have confidence in
9322-426: The ex-Chilean dictator, Senator Augusto Pinochet . Amnesty International (AI) was given leave to intervene in the proceedings. However, one of the judges of the case, Lord Hoffmann , was a director and chairperson of Amnesty International Charity Ltd . (AICL), a company under the control of AI. He was eventually disqualified from the case and the outcome of the proceedings set aside. The House of Lords held that
9440-494: The executive's authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority." Furthermore, no other member of the royal family can be prosecuted for any crime under Article 25 of the old absolutist constitution Lex Regia (The King's Law), currently still valid, which states: "They shall answer to no magistrate judges, but their first and last Judge shall be
9558-401: The government; their responsibility shall be determined by Statute. Accordingly, the monarch cannot be sued in his or her personal capacity. On the other hand, this immunity from lawsuits does not extend to the state as such and article 63 explicitly authorises the courts to judge the executive authority: "The courts of justice shall be empowered to decide any question relating to the scope of
9676-514: The hearing should be conducted, the adjudicator has to ask whether the person charged has a proper opportunity to consider, challenge or contradict any evidence, and whether the person is also fully aware of the nature of the allegations against him or her so as to have a proper opportunity to present his or her own case. In Secretary of State for the Home Department v AF (2009), Lord Phillips of Worth Matravers said: The best way of producing
9794-451: The interpretation of the second aspect extending it to the Crown in its other capacities. Rulings by the High Court of Australia on specific matters of conflict between the application of states laws on Commonwealth agencies have provided the interpretation that the Crown in all of its other capacities includes the Commonwealth, therefore if a state Act contains this text then the Act may bind
9912-411: The jurisdiction of the Hong Kong courts "in the face of the court". Claimants should establish that the state party has waived their entitlement to immunity at the relevant stage, before proceedings can occur in court. Article 13 of the Constitution of Denmark states: The King shall not be answerable for his actions; his person shall be sacrosanct. The Ministers shall be responsible for the conduct of
10030-459: The justice system, they need to be able to see that justice is done rather than being asked to take it on trust". The right to be heard in answer to charges before an unbiased tribunal is illustrated in the Singapore case Tan Boon Chee David v. Medical Council of Singapore (1980). During a disciplinary hearing, council members were either not conscientious about their attendance or did not attend
10148-450: The latter having roots that to some degree parallel the origins of natural justice. Although natural justice has an impressive ancestry and is said to express the close relationship between the common law and moral principles, the use of the term today is not to be confused with the " natural law " of the Canonists , the mediaeval philosophers' visions of an "ideal pattern of society" or
10266-568: The legal system. The erosion of public confidence undermines the nobility of the legal system and leads to ensuing chaos. The essence of the need for impartiality was observed by Lord Denning , the Master of the Rolls , in Metropolitan Properties Co (FGC) Ltd v Lannon (1968): "Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge
10384-485: The matter further. Up until this point the Commonwealth and its agencies claimed an unfettered immunity from state legislation and had used s. 109 to justify this position, specifically that the NSW Act was in conflict with the Act which created the DHA and s. 109 of the constitution applied. Mr. Henderson took the case to the High Court and a panel of seven justices to arbitrate the matter. By a majority decision of six to one
10502-544: The minutiae of court procedure or other matters outside the ken of the ordinary, reasonably well-informed members of the public, there should be no risk that the courts will not ensure both that justice is done and that it is perceived by the public to be done". In the Singapore High Court decision Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005), Judicial Commissioner Andrew Phang observed that
10620-485: The nature of the decision being made and the process followed in making it, the statutory scheme under which the decision-maker operates, the importance of the decision to the person challenging it, the person's legitimate expectations , and the choice of procedure made by the decision-maker. Earlier, in Knight v Indian Head School Division No 19 (1990), the Supreme Court held that public authorities which make decisions of
10738-466: The open material alleges he was at a certain place during a certain period) without having to know the detail or sources of the closed evidence. However, if the evidence revealed to the person consists only of general assertions and the case against him is based solely or to a substantive extent on undisclosed adverse evidence, the fair hearing rule under natural justice will not be satisfied. In such cases, there are strong policy considerations supporting
10856-554: The participation of a disqualified person "certainly rendered the decision wholly void". It has been suggested that the rule requiring a fair hearing is broad enough to include the rule against bias since a fair hearing must be an unbiased hearing. However, the rules are often treated separately. It is fundamental to fair procedure that both sides should be heard. The right to a fair hearing requires that individuals are not penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of
10974-488: The performance of his duties. Notwithstanding the foregoing, the president remains accountable in front of law for acts outside of his office in the same way as other citizens. The Holy See , of which the current pope is head (often referred to by metonymy as the Vatican or Vatican City State , a distinct entity), claims sovereign immunity for the pope, supported by many international agreements. According to article 11 of
11092-483: The position taken in Tang Kin Hwa or Shankar Alan is preferable. There are cases in which a disqualified adjudicator cannot be replaced, as no one else is authorized to act. It has been observed that "disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act". In such cases, natural justice has to give way to necessity in order to maintain the integrity of judicial and administrative systems. This issue regarding necessity
11210-413: The principle that a trial procedure can never be considered fair if a person is kept in ignorance of the case against him or her. First, since the grounds for a reasonable suspicion that a person is involved in terrorist activity can span from incontrovertible evidence to an innocent misinterpretation of facts which can be explained away by the person, in many cases it is impossible for courts to be sure that
11328-520: The proprietors. However, it was discovered by Dimes that Lord Cottenham, in fact, owned several pounds' worth of shares in the Grand Junction Canal. This eventually led to the judge being disqualified from deciding the case. There was no inquiry as to whether a reasonable person would consider Lord Cottenham to be biased, or as to the circumstances which led Lord Cottenham to hear the case. In certain limited situations, bias can also be imputed when
11446-431: The real likelihood test is in reality similar to that of reasonable suspicion. First, likelihood is in fact "possibility", as opposed to the higher standard of proof centring on "probability". Secondly, he suggested that real in real likelihood cannot be taken to mean "actual", as this test relates to apparent and not actual bias. He also observed that both the court's and the public's perspectives are "integral parts of
11564-501: The relationship is one of master and servant, or where the individual holds office at the pleasure of the authority. On the other hand, a duty to act fairly exists where the individual cannot be removed from office except for cause. Finally, a right to procedural fairness only exists when an authority's decision is significant and has an important impact on the individual. People are barred from deciding any case in which bias exists or bias may fairly be suspected. This principle embodies
11682-428: The requirement of prior notice serves three important purposes: The British courts have held it is not enough for an affected person to merely be informed of a hearing. He or she must also be told what is at stake; in other words, the gist of the case. Every person has the right to have a hearing and be allowed to present his or her own case. Should a person not attend the hearing, even with adequate notice given,
11800-515: The right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights , which is said to complement the common law rather than replace it. Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. It is similar to the American concepts of fair procedure and procedural due process ,
11918-429: The same ruling had been made and that it was contrary to the rule of law. As a result of this case, the Commonwealth cannot claim a broad constitutional immunity from state legislation. In practice, three tests have been developed to determine whether a state law applies to the Commonwealth and vice versa: If these three tests are satisfied, then the Act binds the Crown in respect of the Commonwealth. In Australia, there
12036-432: The state or the Commonwealth the Crown may or may not be immune from any particular statute. Many Acts passed in Australia, both at the state and at the federal level, contain a section declaring whether the Act binds the Crown, and, if so, in what respect: While there is no ambiguity about the first aspect of this declaration about binding the Crown with respect to the state in question, there have been several cases about
12154-458: The state. However, this immunity does not extend to acts done in abuse of the powers of their office of which they are liable upon the expiration of their tenure. It is important to note that the judiciary has absolute immunity for actions decisions taken in their official capacity. Article 5 of the Constitution of Norway states: "The King's person is sacred; he cannot be censured or accused. The responsibility rests with his Council." Accordingly,
12272-418: The submissions and arguments made by the parties on the issues, this will amount to a breach of natural justice. However, a genuine bona fide mistake by an adjudicator in omitting to state reasons for not considering a submission is not enough to be a breach of natural justice. This may occur when the submissions were accidentally omitted, or were so unconvincing that it was not necessary to explicitly state
12390-403: The term judicial had been misinterpreted as requiring some additional characteristic over and above the characteristic that the power affected some person's rights. In his view, the mere fact that the power affects rights or interests is what makes it "judicial" and so subject to the procedures required by natural justice. This removal of the earlier misconception as to the meaning of judicial
12508-417: The term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly". The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias, or apparent bias. Actual bias is very difficult to prove in practice whereas imputed bias, once shown, will result in
12626-431: The test in terms of a "real danger of bias", and emphasized that the test was concerned with the possibility, not probability, of bias. Lord Goff of Chievely also stated that "the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man". However, the test in Gough has been disapproved of in some Commonwealth jurisdictions. One criticism
12744-502: The time of the June 2014 abdication of King Juan Carlos the Spanish constitution did not state whether an abdicated monarch retains his legal immunity, but the government was planning to make changes to allow this. Legislation has been passed, although unlike his previous immunity, the new legislation does not completely shield the former sovereign. Juan Carlos must answer to the supreme court, in
12862-513: The tort liability of the government is a relatively new development in Canada, statute-based, and is not a fruit of common law." Since 1918, it has been held that provincial legislatures cannot bind the federal Crown, as Charles Fitzpatrick noted in Gauthier v The King : "Provincial legislation cannot proprio vigore [i.e., of its own force] take away or abridge any privilege of the Crown in right of
12980-460: The whole course of proceedings. This meant they did not hear all the oral evidence and submissions. The High Court held that this had substantially prejudiced the appellant and constituted a fundamental breach of natural justice. On the other hand, mere absence from a hearing does not necessarily lead to undue prejudice. It was held in Re Teo Choo Hong (1995) that the function of a lay member of
13098-656: Was an action brought under the Lanham Act , Florida Prepaid was a concurrent action brought under the Patent and Plant Variety Protection Remedy Clarification Act . Although it was unnecessary to reach the question of whether Congress had validly abrogated Florida's sovereign immunity in College Savings Bank , the question was unavoidable in Florida Prepaid . In a 5–4 decision authored by Chief Justice William Rehnquist ,
13216-520: Was being prosecuted by the Attorney General of Quebec for misappropriation of public funds, but invoked royal immunity on the basis that "the Queen can do no wrong". As per convention, the court did not disclose its reasons for not considering the matter. Thibault later petitioned the Court of Quebec for the same motives. Judge St-Cyr again rejected her demand, noting that constitutional law does not grant
13334-473: Was biased". This case therefore established the current test in the UK to be one of a "real possibility of bias". On the other hand, the reasonable suspicion test asks whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the litigant is not possible. Although not currently adopted in the UK, this test has been endorsed by
13452-478: Was biased.'" Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart , the Lord Chief Justice of England and Wales , that "[i]t is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done". Bias may be actual, imputed or apparent. Actual bias is established where it
13570-423: Was generally understood to mean that a duty to act judicially was not to be inferred merely from the impact of a decision on the rights of subjects; such a duty would arise only if there was a "superadded" express obligation to follow a judicial-type procedure in arriving at the decision. In Ridge v Baldwin , Lord Reid reviewed the authorities extensively and attacked the problem at its root by demonstrating how
13688-485: Was given no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful. Likewise in Surinder Singh Kanda v Federation of Malaya (1962), a public servant facing disciplinary proceedings was not supplied with a copy of a prejudicial report by a board of inquiry which the adjudicating officer had access to before the hearing. The Privy Council held that the proceedings had failed to provide him
13806-446: Was made according to this article. Officials who commit torts themselves are not liable, although the State or a public entity has the right to obtain reimbursement from the officers if there is intent or gross negligence on the part of them. The Administrative Litigation Act enables the people to file lawsuits involving the government of Japan . On November 20, 1989, the Supreme Court ruled that it does not have judicial power over
13924-503: Was raised in Dimes . The Lord Chancellor had to sign an order for enrolment in order to allow the appeal to proceed from the Vice-Chancellor to the House of Lords. It was held that his shareholding in the canal company which barred him from sitting in the appeal did not affect his power to enroll, as no one but him had the authority to do so. It was mentioned this was allowed "for this [was]
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