‘What Have the Romans Ever Done for Us?’ Jus Naturale, Materiality, and the Fair Hearing Rule

'If for no other reason, the Roman law holds a special place within the history and philosophy of law and within the history of political philosophy for the prominent place it appears to give to the notion of natural right'[1]

Though not binding nor directly applicable, the chokehold of Roman law on the foundations of our modern legal tradition persists. Sometimes, Roman law has been used by judges as an analogy to the decision at hand.[2] At other times, it forms the bedrock of the concepts relevant to the decision.

This paper concerns the latter category. Its subject is the materiality threshold in the context of and as applied to procedural fairness and the fair hearing rule, as considered by the High Court in 2022 in Nathanson v Minister for Home Affairs (‘Nathanson’).[3] There are many ways to approach the discussion of Nathanson with respect to materiality, not least including its implications for the legality/merits distinction and the separation of powers.[4] However, we argue, with the greatest respect, that the plurality’s formulation of the materiality threshold in Nathanson represents a continued collapse, not merely of doctrinal coherence, but of the deeper promise that the principle of jus naturale once held for Australian jurisprudence. That promise, articulated by Roman jurists from Cicero to Grotius and embedded in the natural justice tradition absorbed by the common law — and indeed requiring ‘plain words of necessary intendment’ by Parliament to be excluded[5] — was that the right to be heard is not merely an instrument for producing better outcomes for society, but an intrinsic demand of justice itself required by sole reference to right procedure. The materiality threshold, by conditioning the remedy for a denial of procedural fairness on an onus of proof resting on the applicant that the outcome could have been different should procedural fairness have been afforded, betrays that promise.

We begin by tracing the roots of jus naturale in Roman law to establish this notion of natural justice. We then turn to Nathanson and examine, in particular, the tension between the reasoning of the plurality (Kiefel CJ, Keane and Gleeson JJ) and the separate opinion of Edelman J, in particular, whose analysis reflects the classical conception. This tension reveals that the materiality threshold, rather than resolving the question of procedural fairness, has produced an unsettled and uncertain condition in Australian administrative law, one that haunts us precisely because the answer was always there, embedded in the foundations of the tradition we inherited and then chose to erode.

Inherited Roman Law

In introducing the element of materiality, we begin with what Seneca warned in Medea against nearly two thousand years ago: that one may judge righteously while oneself being unrighteous with respect to the principles within that “judging” itself. To elaborate upon this, we must first address the origins of the principle of jus naturale by turning to arguably the oldest influence on Australian law, Ancient Rome. 

Procedural fairness, including the fair hearing rule and the rule against bias, emanates from natural law, which has its origins in what Roman scholars considered as the ‘ideal body of right and reasonable principles which was common to all human beings’.[6] Cicero, writing in De Legibus, argued that this natural law is discoverable through reason itself.[7] This element of justice is essential to the state itself, distinguishing the state from a gang of criminals, which was to implement rules.[8] Displacing these rules would not merely raise questions of constitutionality or legality — it would undermine the very existence of the state itself. A state or polity that abandons natural justice is not only acting unlawfully but also destroys the fiction of the state itself and therefore, its own legitimacy. 

Briefly, the concept of fair hearing is further reflected in Scripture, which we refer to merely to highlight the long history of procedural fairness as a concept. When the Pharisees moved to arrest Jesus, Nicodemus asked ‘[d]oes our law judge any man, before it hear him, and know what he doeth’.[9] At the risk of sounding sacrilegious, and with the firm caveat that the comparison extends no further than the procedural principle, there is a structural parallel in Nathanson. Edelman J noted that a fair opportunity to be heard is based on the value of natural justice and human dignity, values so fundamental that Parliament must be ‘extremely, “unambiguously”, or “unmistakeabl[y]” clear before defeating such a basic principle of justice’.[10] Like Nicodemus before the Sanhedrin, His Honour reminds us of the inability of the principles of natural justice underlying fair hearing to be traded for the ‘weaker underlying values concerned with efficiency, or “good administration”[11]'. And like Nicodemus, His Honour did not command a majority. 

Connection to Nathanson

Having established the value and connection of the fallen Roman Empire to our present task, this section will now establish Nathanson’s unsettling of the very tradition we have just traced based on the plurality’s finding on materiality. 

In Nathanson, the occurrence of a breach of procedural fairness in relation to the decision of the Administrative Appeals Tribunal (as it then was) to affirm the cancellation of Mr Nathanson’s visa was conceded. The only question was whether the breach was material such that it amounted to a jurisdictional error ‘so as to be capable of justifying the grant of curial relief’.[12] The six available justices of the High Court allowed Mr Nathanson’s appeal. This unanimity, though, conceals a fracture in reasoning that goes towards the foundations of procedural fairness itself.

The plurality referred to the majority in Minister for Immigration and Border Protection v SZMTA[13]and MZAPC v Minister for Immigration and Border Protection [14] in holding that the applicant ‘[bears] the onus of demonstrating that the denial of procedural fairness [is] material’[15] in terms of showing that there was a ‘realistic possibility that a decision-making process could have resulted in a different outcome’. [16] Although the plurality notes that this sets a low ‘undemanding’ threshold of ‘reasonable conjecture’,[17] the additional hurdle of materiality after an applicant has already proven breach of one of their basal natural rights is problematic for several reasons.

First, regardless of its demands of ‘almost nothing’[18] in application, it is doctrinally significant to place the onus upon the applicant to satisfy the court that a different decision could have been made should there have been compliance with procedural fairness. This is not only because this standard may be altered to become more onerous over time, but also because it is doctrinally inconsistent with the fundamental status given to procedural fairness within the common law itself as necessary to ‘respect the integrity and the dignity of individuals’ subject to governmental power.’[19] Gordon J neatly summarises that practical injustice has already been occasioned in a case where a fair hearing has been denied (as proved by the applicant).[20] After this point, ‘it is not incumbent’ upon that person to demonstrate what could have occurred if procedural fairness had been observed.[21] Rather, where the decision-making process has failed to allow a fair opportunity to be heard, it should be that a jurisdictional error is made out ‘by nothing more than that failure’ and, in reversing the onus, it will be that way ‘unless it can be shown by a respondent … that the failure did not deprive the person of the possibility of a successful outcome’.[22] However, while this reversal of the onus minimises the problem, it arguably does not address the fundamental issue with materiality. There is a case where materiality should not even be a relevant consideration, as its existence serves as the power to dismiss what is quintessentially procedural fairness. 

We hesitate to overstate this point as so entirely dramatic. The materiality threshold does not reach the gravity of the Edict of Thessalonica. It is not Justinian’s suppression of the law schools. It is not the proscription lists of the late Roman Republic, where Roman citizens were condemned without hearing and without recourse on the basis of political convenience alone. The Roman abandonment of their principles was with far greater enthusiasm and harm. But nonetheless, this small step by the High Court is notable, no matter how modest. The ‘ero[sion]’ of procedural fairness exacted by the fact that an ‘immaterial instance of denial of procedural fairness will not invalidate a decision’[23] coupled with the ‘regrettable premise’ that the (already proven) aggrieved individual bears the weight of proving materiality takes us a few miles closer to the fall.

Edelman J’s opinion comes to light. His Honour reflects the principles we discuss in noting that a fair opportunity to be heard is based on the values of natural justice and human dignity.[24] Though all justices in Nathanson agreed that jurisdictional error was found and the onus of proving materiality may be slight, the fact that the threshold of materiality was accepted leads to an inevitable conclusion given by Edelman J of a tradeoff between the ‘reasonable and widespread expectation of… efficiency’[25] with natural justice itself (which may appear to some as less immediately at stake but, upon reflection, visibly of far greater importance). This begins to sound similar to Seneca, where we wish to highlight natural justice as intrinsically valuable to the state and the people. Seneca’s position in Medea — that a judge who denies a hearing is himself unjust even if the judgment is correct — implies that the value of an outcome cannot be separated from the process by which it was reached. The decision is made good not merely (or at all) by its correctness but by the adherence to the correct procedure that produced it.[26] This mantra of “procedures not outcomes” is oft-repeated in modern Australian administrative law,[27] but we cannot help but feel its grip loosen in the plurality holding of Nathanson in affirming that judicial review applicants bear the onus of proving materiality. Rather, the case should have been used as a ‘very important opportunity… [for] modifying’[28] that exact principle.   

From a humble law student’s perspective, we begin to question the value of materiality at all. If materiality both erodes principles of justice and is such a low threshold, then what value does it add? Returning to the case of Hossain v Minister for Immigration and Border Protection,[29] where the threshold of materiality was not met as the statute conferring power on the decision-maker would have barred the decision from reaching an alternate outcome, the question is thus raised as follows: why frame the question in terms of whether the error could have had some effect on the outcome, instead of framing it purely as an exercise of statutory construction? Would that not also give further emphasis to what Parliament truly and clearly intended in relation to the prescribed process of decision-making? 

In Nathanson, Gordon J suggests that jurisdictional error must reflect the ‘primacy of statute’ and the ‘values that underpin our democracy’.[30] In other words, this suggests that the legislation prevails, as the will of a parliament elected through democracy is paramount. One can maintain the primacy of statute, as Hossain itself demonstrated, through the ordinary tools of statutory interpretation. If the statute, properly construed, would have compelled the same outcome regardless of the error, the decision stands. This is not because the unfairness was “immaterial”, but because the statute left no room for a different result. A court can choose one of two options in the case of a denial of procedural fairness: to say “your unfair hearing did not matter” or “you were treated unfairly, but the law provided no alternative.” The former erodes natural justice. The latter respects it. 

We thus return to where we began, the Romans and the tradition of procedural fairness that haunts us. The distinction between in effect holding that “your unfair hearing did not matter” as opposed to holding “you were treated unfairly, but the law provided no alternative” is rooted in De Legibus and law as a reflection of power versus reason. A statute that compels a particular outcome regardless of process is, on a Ciceronian analysis, still law. This law operates through the legitimate authority of the state, constrained by its own terms. But a judicial doctrine that permits the state to deny a hearing and then asks the person denied whether they can prove that an opportunity to be heard could have resulted in a different outcome is something else entirely. It does not reflect the primacy of statute. It reflects the primacy of convenience.

Conclusion

We do not suggest that the High Court has become the Sanhedrin, nor that the materiality threshold heralds the fall of a second Rome. The comparison, as we have been at pains to note, extends no further than the procedural principle. We rest on the key point that principles have consequences, and the consequence of the materiality threshold, no matter how low and undemanding, is that a person may be denied a fair hearing and left without remedy if they cannot prove, after the fact, that being heard could have changed the result. Seneca’s warning endures: the court may judge righteously, but in tolerating the process by which it arrived at that judgment, it risks being unrighteous all the same.

The answer to this painful question of where the threshold of materiality truly sits has been haunted by the simplicity found in Roman law. This principle was there from Cicero, to Nicodemus, to Mason J, asserting common law duty to act fairly in Kioa v West,[31] and now to Edelman J’s separate opinion. The Roman Empire fell for many reasons, and excessive fidelity to procedural fairness was not glaringly among them. But if the materiality threshold continues to condition the remedy for unfairness on proof of its consequences, rather than recognition of its occurrence, then we will have inherited from Rome one of its most enduring legal contributions and quietly declined to use it. We insist that we must see clearly the principles being traded and, in doing so, reflect back upon Cicero’s account: a state that permits the denial of a hearing without consequence has not made a pragmatic concession to efficiency. It has conceded something about itself.

References

[1] Michael P Zuckert, ‘”Bringing Philosophy Down from the Heavens”: Natural Right in the Roman Law’ (1989) 51(1) The Review of Politics 70, 70.

[2] Alexander v Minister for Home Affairs (2022) 276 CLR 336, 428 [250] (Edelman J).

[3] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 (‘Nathanson’).

[4] See, for example, ibid 119 [81], 120 [84] (Gordon J).

[5] Nathanson (n 3) 121 [88] (Edelman J).

[6] Robert French, ‘Procedural Fairness – Indispensable to Justice?’ (Sir Anthony Mason Lecture, University of Melbourne, 7 October 2010) 10, citing Lloyd L Weinreb, Natural Law and Justice (Harvard University Press, 1987) 1.

[7] Zuckert (n 1) 70.

[8] Cicero, De Legibus 2.13.

[9] John 7:51 (King James Version).

[10] Nathanson (n 3) 121 [88] (Edelman J).

[11] Ibid.

[12] Ibid 107 [45] (Gageler J).

[13] (2019) 264 CLR 421; ibid 99 [23] (Kiefel CJ, Keane and Gleeson JJ).

[14] (2021) 273 CLR 506; Nathanson (n 3) 99–100 [23], 102–3 [31]–[33] (Kiefel CJ, Keane and Gleeson JJ).

[15] Nathanson (n 3) 92 [2] (Kiefel CJ, Keane and Gleeson JJ)

[16] Ibid 103 [33] (Kiefel CJ, Keane and Gleeson JJ).

[17] Ibid.

[18] Ibid 123 [93] (Edelman J).

[19] Ibid 119 [81] (Gordon J).

[20] Ibid 118 [80] (Gordon J).

[21] Ibid.

[22] Ibid.

[23] Ibid 121 [89] (Edelman J).

[24] Ibid  121–2 [89] (Edelman J); see also 119 [81] (Gordon J).

[25] Ibid, 122 [89] (Edelman J).

[26] Seneca, Medea 199–200.

[27] See, for example, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [25] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J); Kioa v West (1985) 159 CLR 550, 584 (Mason J).

[28] Ibid 113 [64] (Gordon J).

[29] (2018) 264 CLR 123.

[30] Nathanson (n 3) 119 [81] (Gordon J).

[31] Kioa v West (1985) 159 CLR 550, 584 (Mason J).