PART I: JUDICIAL REVIEW PROCEDURAL FAIRNESS - IMPLICATION

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1 PART I: JUDICIAL REVIEW PROCEDURAL FAIRNESS - IMPLICATION 1. THE IMPLICATION PRINCIPLE When will the rules of procedural fairness by implied? Administrative decision subject to ADJR Act when a breach of the rules of natural justice occurred in connection with the making of the decision (s.5(1)(a)) or for conduct (ss.6(1)(a)). ADJR Act ss5(1)(a), 6(1)(a) Section 5 (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision Section 6 (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds: (a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct NB Natural justice is used synonymously with procedural fairness 1.1 The Modern Test of Implication Kioa v West (1985) 159 CLR 550 Facts: Kioa, a Tongan citizen entered Australia for a 3 month training course. His wife later joined him. When his temporary permit expired he applied for an extension. His daughter was then born in Australia and as such was a citizen. Kioa was then subsequently arrested for being prohibited immigrant. Sought reasons for the decision and review, alleging that documents in the departmental submission were prejudicial to them. 1

2 Held: MASON J (representing the majority view): Common law duty to extend procedural fairness in the making of administrative decisions which affect rights interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it. This right or interest can be deprived when any of the following is affected: personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. Procedural fairness is also implied by the doctrine of legitimate expectations. Procedural fairness can only be implied where a decision affects a person individually in their personal capacity and not just as a member of the public. General common law presumption of procedural fairness: it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations of the individual citizen in a direct and immediate way. To displace this presumption there must be a strong manifestation of contrary statutory intention But rights must be affected in a direct and immediate way. For example a decision to impose a general charge for services will not call for an implication of procedural fairness. Only persons affected in a direct and immediate way. The question in this case is more of content rather than whether procedural fairness will apply; The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? NB In this case the judges still attempt to find a head of implication to hang the case on, that is, deprivation/expectation/application. What is appropriate in terms of natural justice depends on the circumstances of the case and includes: o The nature of the inquiry; o The subject-matter; and o The rules under which the decision-maker is acting. Not all deportation orders require notice be given. However in cases where there are reasons personal to him such as his conduct, health or associations notice and fairness should be given. In this case the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter. 2

3 Irreducible minimum amount of procedural fairness associated with every administrative decision. BRENNAN J (not the leading judgement/majority but not dissenting): Peremptory exercise of power valid where notice would frustrate the purpose for which power conferred. The contents of natural justice may range from a full blown trial to nothingness. That is, the hearing may be like a trial, but in other circumstances the content of natural justice could be reduced to nothingness. Notion of legitimate expectation is of uncertain connotation and should not be used to determine the application or content of natural justice. Must have opportunity to deal with relevant matters adverse to interests. The notion of legitimate expectation is of uncertain connotation, that is, the HC has accepted the doctrine of legitimate expectation but does not know exactly what it means. The HC is accepting the development of the doctrine in the United Kingdom, but they can not spell out all the elements of the doctrine. An expectation can arise on if there is a practice or a promise. If the department deviates from its practice it will give affected person a hearing. If there is a promise it is clearer person expects their application to be decided consistently with the promise. But the subjective state of mind of the affected individual is irrelevant. Thus if adverse allegations are made about an immigration applicant, they should be afforded the opportunity to rebut these allegations. State of South Australia v O Shea (1987)163 LR 378 Facts: There was a multi-stage decision making process in this case. O Shea had been convicted of sexually abusing children and was institutionalised. The Act provided that the offender would not be released unless the Governor is satisfied, on the recommendation of the Parole Board that he is fit to be at liberty. O Shea was given a hearing by the Parole Board and gave advice that he should be released but the Governor in Council decided not to act upon the recommendation. Cabinet took into account the issue of public interesting determining whether O Shea should be released. They felt that he should not have been granted parole because there was sufficient evidence that he might re-offend. Held: BRENNAN J (Majority Wilson and Toohey JJ judgement also in the majority): Duty capable of applying to Governor. Cabinet makes decisions on public interest and should have unfettered discretion. Only additional hearing if the additional matter is personal to the individual this is the majority line of reasoning. 3

4 MASON CJ (Agreement with majority on most points): As in Kioa There is a common law duty to act fairly in the making of administrative decisions which affect the rights, interests and legitimate expectations of an individual, subject only to the clear manifestation of a contrary statutory intention. This common law duty is capable of applying to the Governor in Council. Decisions of the Governor in Council are based on a Cabinet decision. Even though Cabinet is a political body it should be subject to judicial review because some of its decisions are based on justice to the individual rather than political concerns. Just because a decision has some political content it does not lie outside the ambit of natural justice. The decision making process must be viewed in its entirety. In this case the hearing before the board provided sufficient opportunity for O Shea to present his case. That is, enough procedural fairness was granted by the board and thus no other hearing need be afforded by the Governor in Council. But, if the decision-maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him the opportunity. There was no denial of procedural fairness in this case. But Mason CJ additionally found that if O Shea could not present on issues of public interest at parole board then there would be no procedural fairness NB The majority did not make this comment. DEANE J (Dissent): The fact that the decision was made on political grounds not raised before constitutes powerful reason why it should be heard. Annetts v McCann (1990) 170 CLR 596 Does the duty of Procedural Fairness apply to investigative proceedings? Facts: Two young boys left their job at a station in the outback bush. One died of a shot in the head and the other died of thirst. There was a coronial inquiry to work out how the boys died. The parents of the boy who died of thirst wanted to make additional submissions for evidence to protect the reputation of their son because it was possible that he had shot the other boy. They were refused. The parents sought mandamus. Section s24 of the Coroners Act 1920 provided that any person who, in the opinion of the coroner, has a sufficient interest in the subject or result of the inquest may give evidence. The case raised questions such as: Are investing procedures, which are not strictly administrative, subject to procedural fairness? AND Can the parents make submissions to the coroner on behalf of their son even if they are not directly and immediately affected? 4

5 Held: MASON CJ, DEANE AND McHUGH JJ: It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. The parent s interests were affected the interests which they represent include the protection of the reputation of their deceased son. It does not matter whether the interest of the deceased or the interest of the appellants as parents of the deceased or both. Therefore, the reputation of the deceased is an interest that would give rise to a duty to observe procedural fairness It could also be classified as a legitimate expectation that the coroner would not make a finding adverse to their interests without hearing them. The question to be raised is whether the Act displays a legislative intention to oust the common law right to be heard in the determination of any matter adverse to their interests. It was found that the legislation did not intend to destroy the common law presumption of natural justice. This was partially because the Act was devised before anybody would imagine the requirements could apply to a coronial court. However, their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased. That is, a right to make submissions concerning matters which are identified as a possible source of adverse findings concerning their interests, does not give a right to make submissions on the general subject matter of inquiry. Order of prohibition and mandamus was made. That is, the Coroner ordered to reconsider the question after the additional evidence and prohibited from publishing findings until this was done. 1.2 The Concept of Legitimate Expectation The concept of legitimate expectation was developed initially by the English Courts to expand the range of procedural fairness beyond protection of legal rights (like liberty and property). A legitimate expectation may be sourced to: a) the nature of the benefit (FAI Insurances) or activity (Heatley; Forbes) b) an undertaking or promise (AG (Hong Kong) v Shiu) c) a course of conduct (GCHQ) d) a published, considered statement of policy (Haoucher), including an international agreement that Australia has entered into (Teoh) Whether a person has a legitimate ( reasonable ) expectation is an objective test it does not depend on the person s actual knowledge or expectation (see Teoh, below). 5

6 However, having identified a legitimate expectation, a reviewing court can only provide procedural protection. A reviewing court cannot ensure that a benefit is granted, nor hold the administration bound by its policies, representations, promises or regular procedures (see Quin s case and Lam s case). NB In Lam s case, the reservations which members of the High Court have expressed about Teoh s case ad about the continuing utility of the concept of legitimate expectation. Where there is already a recognised right or interest which attracts a duty to act fairly, the concept of a legitimate expectation appears somewhat unnecessary. However, the concept has been a useful judicial means of expanding the scope of the applicability of the rules of procedural fairness. For example, in cases where: a) The decision-maker has given some undertaking or assurance to the person likely to be affected by the decision that he or she would be consulted before any decision was made: R v Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operators Association; b) The decision-maker has a policy or practice whereby it acts in a certain way (such as giving notice of the receipt of building application to adjoining landowners and invites submissions) c) Regular application of the policy or practice creates an enforceable legitimate expectation that such notice will be given, and that any representations made will be duly considered before any decision is made: AG for HK v Ng Yuen Shiu (1983); Council of Civil Services Unions & Ors v Minister for the Civil Service (1985); Kiao v West (1985); Haoucher v Minister of State for Immigration and Ethnic Affairs. d) There is, in existence, some law, convention, treaty or policy (not otherwise displaced by some statutory or executive indication to the contrary) which gives rise to a legitimate expectation that its provisions will be followed or otherwise taken into account in the decision-making process: Minister for Immigration and Ethnic Affairs v Teoh (1995) e) The person likely to be affected has an interest which, although not presently classifiable as, and falling short of, a legal right and not presently held, is nevertheless important enough that some degree of procedural fairness be afforded. Thus an applicant for a licence or an approval, who has never held a licence or has never been granted an approval before, is still entitled to a measure of procedural rectitude (proper consideration and no bias), even though there may not be an actual right to be heard: McInnes v Onslow-Fane Legitimate expectations must be reasonably based: (Kiao v West) 6

7 Consequence of finding that there exists a legitimate expectation that a decision-maker will act in a certain way; Does NOT compel a substantive right BUT a) Affords a right to be heard before a decision is made or action taken: Salemi v MacKellar; AG for the State of NSW v Quin; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning b) Does not necessarily compel the decision maker to act in that way, but if the decision maker proposes to make a decision inconsistent with the legitimate expectation, the person affected must be afforded procedural fairness (That is, be given notice and an adequate opportunity of presenting his or her case): Teoh. The legitimate expectation of being heard: a) Does not arise in relation to the exercise of every executive power: Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning AND b) May be excluded by the clear and unambiguous legislative (or other) expression of a contrary intention: Medway v Minister for Planning. For example, where the persons relevantly affected are numerous or difficult to identify (either at present or in advance), such a contrary intention will be more readily inferred: Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning For legitimate expectations arising under policy (for example that consultation will take place before decision made): a) Can only be based upon the current policy b) May be affected when the policy is substituted by a new policy and does not itself prevent the adoption of any such new policy: AG (NSW) v Quin c) Will be extinguished upon the adoption of a new policy inconsistent with the legitimate expectation based on the old policy: AG (NSW) v Quin; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning d) Will require decision-maker to give applicant an opportunity to be heard if departing from published operative policy: Haoucher v Minister for Immigration and Ethnic Affairs Attorney-General for Hong Kong v Ng Yuen Shiu [1983] 2 A 629 PRINCIPLE A legitimate expectation may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such inquiry. Facts: The Government of Hong Kong decided to increase the number of deportations of illegal immigrants, but, as a result of a petition undertaken... 7