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COMMENTAIRES
Can Fairness be Effective?
Julius H. Grey*
I. The Limits of Fairness
Procedural fairness (^) undoubtedly constitutes the most important achievement of administrative law since the seminal decision (^) of Ridge v. Baldwin.' The concept (^) of fairness has been used to extend some protection to individuals affected by decisions of a public nature in (^) matters previously
deemed "administrative" and therefore presumably unreviewable. 2 To put it in more accessible terms, the courts have acceded to Lord Denning's view that practically nothing is totally outside the sphere of courts 3 and now hold that even in those matters where it is desirable for officials to have wide powers and considerable immunity from judicial (^) review, it is not correct to categorize that (^) immunity as total. Certain minimum standards must be met.
These minimum standards do not (^) mean that courts serve as an automatic appeal from administrators. (^) It has often been stressed by courts that judicial review means review of the legality of a decision and not of the merits.^4 It follows that in many cases courts will not review decisions with which they disagree, because they (^) cannot substitute their opinions for those of the officials.
*** Of** the Faculty of Law, McGill University. I Ridge v. Baldwin [1964] A.C. 60 (H.L.). The leading Canadian cases are Nicholson v. Haldimand-Norfolk (^) Regional Board of Commissioners of Police [1979] 1 S.C.R. 311 and Martineauv. Matsqui Institution DisciplinaryBoard (No. 2)[1980] 1 S.C.R. 602. See also Mullan, Fairness: The New NaturalJustice? (1975) 25 U.T.L.J. 281. 2 See Grey, Discretion in Administrative Law (1979) 17 Osgoode Hall L.J. 107 [hereinafter Discretion] and Grey, The Duty to Act FairlyAfter Nicholson (1980)25 McGill L.J. 598 [hereinafter After Nicholson]. See also Macdonald, Judicial Review and ProceduralFairnessin Administrative Law (1980) 25 McGill L.J. 520 and (1980) 26 McGill L.J. 3 1. See, e.g., A.-G. v. Chaudry [1971] 1 W.L.R. (^1624) (C.A.)per Lord Denning M.R.: "The High Court has jurisdiction to ensure obediance to the (^) law whenever it is just and convenient to do so" and see, infra, note 79. See (^) also Roncarelliv. Duplessis[1959] S.C.R. 121,140- per Rand J. 4 For an account of the distinction between appeal and review, see R. Dussault, (^) Traitd de droit administratifcanadienet qudbdcois (1974), 1055. See also Bhadauria v. M.M.I. (^) [1978]
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Nor is it totally inconceivable for certain types of decisions to be entirely unreviewable on grounds of fairness. In^ M.N.R.^ v. Coopersand^ Lybrand,^5 Mr Justice Dickson suggested in his description of the "continuum" of decisions that some may be totally unreviewable. Even more significant is the Supreme Court decision of A.-G. Canadav. Inuit Tapirisat of Canada^6 in which a decision to determine Bell Canada tariffs was held not to be subject to "fairness". The decision was essentially an interpretation of a statute which provided for cabinet appeals; it touched on the nebulous (^) but crucial question of the division of powers and of the review of political questions. This (^) case- although it never fully developed the discussion of these questions -is thus analogous to Gouriet v. Union of Post Office Workers^7 and Laker Airways^ v.^ Department^ of^ Trade.
8
Gouriet^9 showed that certain political questions could not be tried on the merits before the courts. The jurisdiction of courts can be quite (^) elastic in our constitutional system, but the (^) elasticity is not infinite. Laker indicates that all of (^) this does not mean that such decisions are unreviewable. 10 The dicta in Roncarelliv. Duplessis" and^ observations^ in^ Wade's^ Administrative^ Law'^
2
stating (^) that nothing is ever totally unreviewable still stand. However, the review (^) would normally concern the statutory limits of the power 13 and not involve considerations of fairness. Inuit Tapirisat1^4 clearly states that review would be possible on the issue (^) of "geographic" jurisdiction even where fairness had no place. The controversial issue of the review of Royal prerogative powers could also be affected by this analysis. Lord Denning thought they were reviewable in the same way as other powers.1^5 The judgments (^) in other cases have been less liberal.' 6 Since prerogative powers are not normally created (^) by statute, review could not in these types of cases consist purely (^) of statutory
I F.C. 229 (T.D.) and the comments on this case in Grey, Discretion, supra, note 2, (^) 112. 5[1979] 1 S.C.R. (^) 495, 505. 6 [1980] 2 S.C.R. 735, (^755) per Estey J.: "While it is true that a duty to observe procedural
fairness, as expressed in the maxim audi alterampartem, need not be express..., it will (^) not be implied in (^) every case. It is always a question of construing the statutory scheme as a whole". 7[1977] 2 W.L.R. (^310) (C.A.), rev'd [1978] A.C. (^435) (H.L.). 8 [1977] 2 W.L.R. 234 (C.A.). An (^) analogous Canadian case is Roman Corp. v. Hudson's Bay Oil and Gas Co. [1973] S.C.R. 820. 9 Supra, note 7. 10 Supra, note 8, 250 per Lord Denning M.R. I Supra, note 3, 142 per Rand J. 12 H. Wade, (^) Administrative Law, 4th ed. (^) (1977), 340 et seq. 13 .e., (^) did the officials exceed jurisdiction in the "geographic" (^) sense and did they follow the rules set out in the statute? 14 Supra, (^) note 6, 756-9 per Estey (^) J. 15 Laker, supra, (^) note 8, 250 per Lord Denning M.R. 16 See, e.g., Re Multi-Malls (^) Inc. v. MT.C. (1976) 14 O.R. (2d) 49, (^58) (C.A.) per Lacourci~re J.A. See also Giey, Discretion, supra, note 2, 123-4.
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that failure to act fairly does affect jurisdiction. It is equally certain, following Harelkin^ v. University^ of^ Regina,^24 that^ "unfair"^ decisions^ are only voidable and not absolutely void.^ It^ also^ seems^ evident^ from^ the jurisprudence that some decisions can be exempted from fairness. 25 One would conclude that, with careful drafting, legislatures could immunize many of their functions from review for fairness, or at least greatly diminish the scope^ of^ such^ review.^
26
It is possible to interpret Inuit Tapirisat^27 as a case where drafting excluded fairness. Another ominous decision in^ this^ area^ is^ Hasma^ v. Canadian Wheat Board,^28 which effectivly says that fairness cannot be used to overturn the plain words of a statute. In short, courts cannot refuse to apply a statute because it is "unfair". However, this type of case is only a short distance from one in which fairness is excluded by^ a^ privative^ clause. Of course, privative^ clauses, even^ where^ effective,^ are^ usually^ given^ the minimum effect^ reasonably^ arguable^ in^ the^ circumstances.^29 It^ is^ also politically difficult^ for^ governments^ to^ permit^ actions^ which^ are^ unfair in explicit terms. Nevertheless, given the ardent desire of governments to avoid judicial review and the sophistication of its draftsmen, it is difficult not to discard the fear that statutory drafting could seriously dilute fairness. The narrowness of fairness is apparent in the case which was its greatest triumph - Martineau (No. 2).30 Both Mr Justice Dickson and Mr Justice Pigeon emphasized that although it was possible to obtain review of an administrative decision it^ was^ not^ easy^ and^ would^ take^ a strong^ case^ indeed.^3 ' Both the constitutional limits and the practical limits 32 made it unlikely that fairness could turn out to be a danger to the integrity of the administrative process. The fears^ that^ fairness initially inspired^33 seem wholly unjustified. In fact, fairness is such a vulnerable concept that^ great
24 [1979] 2 S.C.R. 561, 585 per Beetz J. 25 This is stated explicitly^ in^ Coopersand^ Lybrand,supra, note^ 5,^505 per^ Dickson^ J.^ See also Inuit Tapirisat,supra, note 6 and the quotation per^ Estey^ J. 26 It is submitted that no matter what drafting technique was employed, truly scandalous cases 27 would not be tolerated by the courts. Supra, note (^) 6. 28 (1981) 122 D.L.R. (^) (3d) 706, 713 (Alta Q.B.) per MacDonald J. (^29) See, e.g., Re Pioneer Grain Co. and Kraus (1981) 123 D.L.R. (3d) 48 (F.C.A.); Teamsters Union Local 938 v. Masicotte (1980) 34 N.R. 611 (F.C.A.); Yellow Cab Ltd v. Board 30 of Industrial Relations [1980] 2 S.C.R. 761. Supra, (^) note I. 31 At least in a prison matter, ibid., 630 per Dickson J. and 637 per Pigeon J. 32 For further discussion of the limits of fairness, see Grey, After Nicholson, supra, note 2, 600-2. (^33) See, e.g., Kurek v. Solicitor General (F.C.T.D.) No. T-1324-75, 10 September 1975, in which Addy J. held that an administrative decision^ of^ a^ Minister^ involved^ the^ exercise^ of a right similar in kind to a prerogative right of^ the^ Crown^ and^ was^ therefore^ unreviewable.
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care must be taken for it not to be lost. A number of ways could be found by officials (^) of forestalling review of high-handed decisions. One way would be to say as little as possible and give as few reasons as possible. Another way would be to observe all the procedural rules scrupulously and then hide behind the fact that fairness is supposed to be procedural only.^3 4 The combination of these two methods of evasion could be highly effective.
II. Silence as a Way of (^) Evading Fairness It is not the intention of the writer to provide a complete analysis of (^) the obligation to provide reasons for decisions in administrative law. In the first place, this was done very recently; (^35) in the second, it is not directly connected with fairness. 36 Nevertheless, it is not (^) possible to ignore this question altogether in discussing fairness, because it is obvious that portentous (^) silence could easily result in review for unfair conduct. In Nicholson,^37 Laskin C.J.C. (^) noted that one of the basic requirements of fairness was to inform the person affected by a decision of the reasons for it. This probably meant reasons for contemplating a particular (^) step in order to give the other side an opportunity to argue against it, but (^) it could also mean giving a rudimentary (^) explanation after the fact. Traditional administrative law did not require reasons unless there was a statutory provision, 38 but the traditional law is changing quickly and, if fairness is to be a meaningful concept, (^) a way of policing it must be found. It is reasonable to suppose that the duty to give reasons and the sophistication of the reasons must depend on the decision taken. 39 The total absence of a duty to motivate would make it possible to review only the decisions of the more naive, unskilful or honest officials who provided reasons or made such glaring errors that the reasons ceased to matter. Before a general (^) notion of fairness had developed- when only "quasi-
judicial" decisions were generally considered reviewable 40 - motivation (^) was
3 4 (^) Fairness is certainly treated as a (^) procedural concept in Martineau(No. 2), supra, note 1, 623-30 35 per Dickson J., and in Mullan, supra, note 1, 288. _vesque-Crevier, La motivation (^) en droit administratif (1980) 40 R. du B. 535. 36 The purpose of requiring that a decision be motivated is often simply to maintain the "appearance (^) of justice". See, e.g., (^) Alvarez v. M.M.L (^) [1979] 1 F.C. 149 (C.A.). (^37) Supra, (^) note 1, 328. (^38) See Wade, supra, note 12, 211 and 772; Monsanto (^) Co. v. Commissioner of Patents [1979] 2 S.C.R. 1108, 1118-21 per PigeonJ.; (^) Northwestern Utilities Ltdv. City of Edmonton [1979] 39 1 S.C.R. 684, 704-7 per Estey J. Le., in the same way that (^) the degree of fairness required depends on the nature of (^) the particular (^) issue. See the "continuum" idea in Coopers and Lybrand, supra, note 5, 505. 40 In the more distant past certain English decisions came close to expressing modern notions of fairness, e.g., Cooper v. Board of Works (^) for the Wandsworth District (1863) 14 C.B. (N.S.) 180, 143 E.R. 414 (C.P.); Local Government Boardv. Arlidge[1915] (^) A.C. 120 (H.L.). Therefore, one should perhaps speak of the "rebirth" rather (^) than the "birth" of
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discretion. 43 These rules require that even discretionary decisions 44 be made in good faith, without the influence of error of law or irrelevant facts, and (^) not
arbitrarily or unjustly. 45 The broad notion of good faith is particularly
interesting because it includes (^) not only malice or dishonesty, but also acting
for purposes not included by the legislator or for reasons which, however
laudable, are not part of the official's function. (^46) It is also important because of strong authority which (^) holds that at all times and in all circumstances bad faith may be invoked against a^ public^ decision.^47 No less important is the concept of reasonableness. 48 Unreasonableness is not an easy thing (^) to prove, 49 but once proven it invalidates any decision. Variants on this would include decisions made (^) arbitrarily or capriciously. 50 All such decisions would be invalidated. 51 There exists a (^) line of English cases of particular importance here, because the issue of reasonableness (^) is discussed with relation to certiorari and its availability where "rights" are not necessarily determined and no "superadded duty" can be found. (^) The most
43 See, in general, Grey, Discretion, supra, note 2, and, in (^) particular, Grey, After Nicholson, supra, note 2, 602, where the theme (^) of this article is outlined in capsule form. See also the celebrated case of Anisminic Ltd v. Foreign Compensation Commission (^) [1969] 2 A.C. 147, 208 (H.L.) per Lord Wilberforce where (^) much of this argument is foreshadowed. (^44) /.e., decisions where there is no right or wrong solution (^) and the official may to a large extent do as (^) he pleases. 45 See Boulis v. M.M.I. [1974] (^) S.C.R. 875,877 per Abbott, J. quoting (^) from the judgment of Lord Macmillan (^) in Fraser and Co. v. M.N.R. [1949] A.C. 24, 36 (P.C.) and 885 per Laskin J. (as he then was). 46 See (^) Roncarelli, supra, note 3, 143 per Rand J.; Congreve, supra, note 18, 651 per Lord Denning M.R.; Wade, supra, note 11, (^) 372. See also Toronto v. Forest Hill [1957] S.C.R. 569, 572 per Rand J. While this case dealt with the interpretation of subordinate (^) legislation, the principles behind the control (^) of this type of discretion are not substantially different. 47 Landreville v. Boucherville (^) [1978] 2 S.C.R. 801, 813-4 per (^) Beetz J. It is interesting to consider whether the S.C.C. decision in Inuit Tapirisat, supra, note (^) 6, would have been different 48 if bad faith had been (^) proved. Secretary of State for Education (^) and Science v. Tameside Metro (^) Borough Council [1977] A.C. 1014, 1024-7 (C.A.) per Lord Denning M.R., affd[1977] A.C. (^) 1036, 1064 (H.L.) per Lord (^) Diplock: "[I]n public law "unreasonable" as descriptive of the way in (^) which a public authority has purported (^) to exercise a discretion vested in it by statute has become a term of legal art. To fall within (^) this expression it must be conduct which no sensible authority acting with due (^) appreciation of its responsibilities would have decided to adopt." See also Roberts v. Mapivood [1925] A.C. 578, 586-90 (H.L.) per Lord (^) Buckmaster. 49 See (^) Tameside, ibid., 1064 per (^) Lord Diplock. 50 See Boulis, supra, note 45,877per Abbott J. See FederalCourtAct, R.S.C. 1970, Supp. II, c. 10, s. 28(3). 5t Remedies might differ depending (^) on the nature of the decision, but following Vachonv. A.-G. Quibec[1979] I S.C.R. 555,561-3 per PigeonJ. with respect (^) to evocationand Solosky v. Government of Canada (1979) 30 N.R. (^) 380, 388-90 per Dickson J. with respect to declaration, it should no longer be difficult to get a remedy in the case of an unreasonable or arbitrary decision by a public (^) body.
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explicit decision is that of R. v. Hillingdon London Borough Council, Ex parte Royco Homes.^
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These cases conclude unequivocally that unreasonableness is sufficient ground for judicial review and Hillingdon^53 recognizes the possible use of certiorari in this area of law. When we^ consider^ that^ the^ very^ same^ debate took place with respect to fairness, 54 the relationship between the two concepts becomes all the more clear.
The most striking^ case^ on^ this^ subject^ is^ probably^ a^ recent^ Australian decision, Minister of^ Immigration^ and^ Ethnic^ Affairs^ v.^ Pochi.^55 It^ suffices to quote a passage from^ the^ judgment^ of^ Deane J.^ to^ see^ its^ relevance: It would be both surprising and illogical if, in proceedings before a statutory tribunal involving an issue of the gravity of deportation of an established resident, the rules of natural justice were restricted to^ the^ procedural^ steps^ leading^ up^ to^ the^ making^ of^ a decision and were completely silent as to the basis upon which the decision itself might be made. There would be little point in the requirements of natural justice aimed at ensuring a fair hearing by such a tribunal if, in the outcome, the decision maker remained free^ to^ make^ an^ arbitrary^ decision.^
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One of the best Canadian examples of unreasonableness as a form of review akin to fairness is the second test for jurisdiction propounded by Dickson J. in C.U.P.E. After deciding in the first test that the issue under discussion was within the Labour Relation Board's geographic jurisdiction, the learned judge stated the second test as follows: Put another way, was^ the^ Board's^ interpretation^ so^ patently^ unreasonable^ that^ its construction cannot^ be^ rationally^ supported^ by^ the^ relevant^ legislation^ and^ demands intervention, by^ the^ Court upon^ review?^
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52[1974] Q.B. 720,729 (D.C.)per Lord Widgery C.J. quoting with approval the dictum of Lord Denning M.R. in Pyx Granite Co. v. Ministry of Housing and Local Government [1958] 1 Q.B. 554, 572 (C.A.): "The principles to be applied are not, I think, in doubt. Although the planning authorities are given very wide powers to impose "such conditions as they think fit", nevertheless the law says that those conditions,^ to^ be valid,^ must^ fairly^ and reasonably relate to the permitted development. The planning authorities are not at liberty to use their powers for an ulterior object, however desirable that object may seem to^ them^ to be in the public interest." Lord Widgery C.J. also quotes approvingly from the headnote in Hall &^ Co.^ v. Shoreham-by-Sea Urban District Council [1964] 1 W.L.R. 240 (C.A.), at p. 730 of Hillingdon: 'A]lthough the object sought to^ be^ attained^ by^ the^ [planning^ authority]^ was^ a perfectly reasonable one, the terms of the conditions, requiring the plaintiffs to construct an ancillary road at their own expense... ,^ were^ so^ unreasonable^ that^ they^ were^ ultra^ vires." 53 Ibid., 648 per Lord Widgery C.J. applying Ridge v. Baldwin, supra, note 1, 74-6 per Lord Reid. 54 See Re Alberta Union of Provincial Employees and Alberta Classification Appeal Board (1977) 81 D.L.R. (3d) 184 (Alta S.C., App. Div.) and Martineau(No. 2), supra, note I. 55(1980) 44 F.L.R. 41 (F.C. Aust.). (^56) Ibid., 67. (^57) Supra, note 22, 351. A similar case was decided in Service Employees' International Union v. Nipawin Union Hospital [1975] 1 S.C.R. 382, but its importance has only now become clear. The case was heavily relied on in C. U.P.E.
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there is no doubt that the distinction no longer has the decisive effect it did in the past. The distinction between "rights" and "privileges", while it has not lost its analytic appeal, 64 has also lost some of its significance. (^) Prior to Ridge v. Baldwin,^65 the determination of rights was a sine qua non forjudicial review. Now such cases as R. v. Criminal Injuries Board, Ex parte Lain^66 and Wiseman v. Borneman^67 seem^ to^ have^ established^ a^ more^ flexible^ standard.^
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An area particularly suited for technical wrangling was one of remedies.
It could, for instance, be argued that the complicated arguments (^) about
judicial review of the 1950s and 1960s were really about the use of certiorari.
In Vachon 69 the Supreme Court firmly established that procedure (^) was not to
become the deciding factor in law, and that substantive law was to have
primacy at all times.
In C.U.P.E.^70 the utility of the traditional technical terminology of "collateral and (^) preliminary matters" (^) was put in doubt (^) by the Supreme (^) Court.
Technical bans to obtaining damages from officials and public authority started to crumble with Roncarelli.^7 1 In the field of tort this tendency has continued with Gershman v. Manitoba Vegetable Producers' Marketing Board 72 and Chartier v. A.-G. Qudbec.^73 In contracts, (^) the leading, "liberal" case is Verrault v. A.-G. Qubec. 74 In "restitution", one
64 See Grey, After Nicholson, supra, note 2, 607, fn. 59 and the unreported case Siclait v. M.E.L (F.C.T.D.) No. T-5569-78, 24 September 1979. 0 Supra, note 1. 66[1967] 67 2 Q.B. 864, 881-2 per Lord Parker C.J., 884 per Lord Diplock. Supra, note 61, (^) per Lord Reid. (^68) The judgment of Dickson J. in Martineau (No. 2), supra, note 1, 618 is particularly important in this respect. But in Saulnierv. Qudbec Police Commission [1976] 1 S.C.R. 572, as (^) 6 interpreted 9 in Martineau (No. 2), the distinction still played a role. Supra, note 51. (^) Vachon was followed by Solosky, supra, note 51, and Kelso (^) v. Government of Canada (1981) 35 N.R. 19, 29 (S.C.C.) per Dickson J., which have, practically speaking, turned declaration into a general remedy. 70 Supra, note 22, 346-9 per Dickson J. 71 Supra, note 3. 72(1976) 69 D.L.R. (3d) 114 (Man. C.A.) per O'Sullivan J.A. The Court found that the Board's conduct, consisting of unlawful threats outside the scope of its statutory powers and duties, amounted to the tort of intimidation, justifying an award of punitive damages. 73 [1979] (^2) S.C.R. 474. In his judgment for the majority, Mr Justice Pigeon found that members of the Qu6bec Police Force, in the performance of their duties, committed acts of fault by, inter alia, misusing a Coroner's Warrant to detain the appellant and unjustifiably incarcerating him for 30 hours. Damages of $50,500 were awarded. 74 [1977] 1 S.C.R. 41 per Pigeon J. The appellant obtained damages for the unjustified cancellation by the Minister of Social Welfare of a building contract under which it was to build an old-age (^) home.
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can quote Manitoba Fisheries v. The Queen.^75 It is clear that in all these matters, technical difficulties were disregarded (^) in favour of substantive justice.
Another similar evolution has been (^) that of locus standi. From a technical bar to review, locus standi has become a way of weeding out actions by persons^ with^ no^ interest^ at^ all.^
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It stands to reason that, in the context of the new, flexible administrative law, it would not be the court's intention to emba.: on a technical definition of procedure and substance and that certain minimal and similar rules of justice would apply to both. Thus (^) "substantive fairness" is not only not a heresy but is an^ essential^ component^ of^ the^ new^ orthodoxy.^
77
Conclusion Our system of government vests seemingly unlimited legislative power in the Queen in^ Parliament under^ the^ title^ of parliamentary^ sovereignty.^
(^78) It
vests equally^ unlimited^ original^ jurisdiction^ in^ the^ superior courts^
(^79) to
adjudicate on all issues. Although Parliament may limit the courts' jurisdiction, the courts will have the last word in interpreting such a restriction of their power. This division of powers is essential to prevent the
growth of tyranny and to maintain an equilibrium in a system where few of
the formal protections^ of^ the American^ Constitution^ exist.^
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75[1979] 1 S.C.R. 101, 116-8 per Ritchie (^) J., affg Lord Atkinson's judgment in A.-G. v. De Keyser's Hotel, supra, note 17, 542. The appellant was awarded damages for the deprivation 76 of its goodwill as a going concern. See A.-G. Gambia (^) v. N'Jie [1961] A.C. 617, 634 (P.C.)per Lord Denning speaking to the question of what constitutes an aggrieved person for the purpose of obtaining locus standi: "The words "person aggrieved" are of wide (^) import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him." Thorson (^) v. A.-G. Canada [1975] 1 S.C.R. 138 per Laskin J. (as he then was) for the majority, held that courts have a discretion to grant locus standi to taxpayers to raise a constitutional question when it would otherwise in all likelihood be immune from judicial review. Nova Scotia Board of Censorsv. McNeil[1976] 2 S.C.R. 265 per Laskin C.J. widened the scope (^) of this discretion to "members of the public". 77 One proof of the orthodoxy (^) of the idea is the fact that an article by Prof. David Mullan on substantive fairness appears in this very issue and was presumably (^) exactly contemporary with the present essay. Another interesting analysis is found in Lyon, Administrative Law- Combining Search for a General Theory of Judicial Review of Administrative Action for Legality (1980) 58 Can. Bar Rev. 646. 78See, e.g., A. Dicey, Introduction to the Study (^) of the Law of the Constitution, 10th ed. (1965), 79 39-85, and G. Marshall, Constitutional Theory (1971), 35-72. See Board v. Board (^) [1919] A.C. 956, 962 (P.C.) per Viscount Haldane: "If the right exists, the presumption is that there is a Court which can enforce it." Chaudry, supra, note 3, 1624, per Lord Denning M.R.: "Whenever Parliament has enacted a law and given a particular remedy for the breach of it... the High Court always has reserve power to enforce the 80 law." The connection between fairness and certain constitutional problems is clearly seen by Deane J. in Pochi, supra, note 55. At p. 65, Deane J. discusses American principles of
