Natural Justice/Procedural Fairness Prima facie, all government decision making should be subject to natural justice, subject to a

contrary express intention: Haoucher v MIAE (1993) per Deane J It is found in the ADJR under s. 5(1)(a)

This is the almost rule to determine whether natural justice is required: What is the nature of right affected by decision? What is the width of decision maker’s discretion? What is the seriousness of the effects of the decision?

Durayappah v Fernando (1967) – the presumption underlying this is that the applicant deserves to be heard and the DM is unbiased

If breach is found Likely to order a new hearing to be conducted

o However, if the DM can show that the decision would have likely to be exactly the same, then the Court may not: Stead v SGIC (1986)

What is the nature of right affected by the decision?Common law has a duty to act fairly where it affects rights, interests and legitimate expectations: Kioa v West (1985) per Mason J

Rights Proprietary: Cooper v Wandsworth Board of Works (1863) Legal: Durayappah v Fernando (1967)

o E.g. case of alleged corruption of Chief officer and was dismissed without grounds – there was a duty to give a hearing: Ridge v Baldwin (1964)

Membership to professional bodies: Ridge v Baldwin (1964) Public office positions: Ridge v Baldwin (1964) They are not:

o A license withdrawn: R v Metropolitan Police Commissioner; Ex Parte Parker (1953) – however, see legitimate expectations for more re: licenses

Interests Preservation of livelihood, proprietary interests and rights, personal liberty, status, reputation:

Kioa v West (1985) per Mason J Not the kind of interests, but the manner in which the applicant is affected: Kioa v West (1985)

per Brennan J

Legitimate expectations Legitimate expectations is a right to know why and to put a case, not that the case did not go

the applicant’s wayo Therefore, the expectation should not be held personally: FAI v Winneke (1982)

General rule is:o Who entertains it?o How it comes to arise?o To what outcome is it addressed?

Re MIMA; Ex parte Lam (2004) How it comes to arise?

Procedural Fairness/Natural Justice 1

o Context of license – where there is a pre-existing relationship (i.e. applicant already had a license and is up for renewal), this rise to a legitimate expectation at minimum warned not going to be renewed, or given an opportunity to respond: FAI v Winneke (1982)

o Ratification of an international Treaty – Australia’s ratification of an international treaty gave rise to a legitimate expectation that decision would be made in conformity with it: MIEA v Teoh (1995)

o Long standing practice – administrators previous/past behaviour – expectation to be consulted in the future about changes: Council of Civil Service Unions v Minister for Civil Service (1985)

o Administrator’s undertakings – clear representation that if resigned, no blemish on record. If changed stance, applicant should have opportunity to answer allegations: Cole v Cunningham (1983)

o Procedures followed – Minister’s policy to follow AAT recommendations. If changed, applicant should be informed that the recommendations would not be followed in the decision making process: Haoucher v MIEA (1993)

Exclusions: Policy

o High level policy decisions taken by Cabinet do not have to afford natural justice: Minister for Aboriginal Affairs v Peko-Wallsend (1985)

Express statutory exclusion o A reluctance to imply an exclusion: State of South Australia v Slipper

What is the width of the DM’s discretion? An Airforce officer was held “during pleasure of the GG”. This meant a wide discretion and

dismissal at any time: Coutts v Cth (1985) o Where there is a wide discretion “at any time”, natural justice is not prima facie denied:

Jarratt v Commissioner of Police of NSW (2005) – however times have changed this rule

What is the seriousness of the effects of the decision?The greater the seriousness of the decision, the more reason there is a case against you: Durayappah v Fernando (1967)

BreachThe law requires fairness, but what is fair depends on the circumstances: Mobil Oil v FCT (1963) per Kitto J

There is a wide discretion – emphasizes the importance to be heard – Jarratt v Commissioner of Police (NSW) (2005)

Hearing rule Does Applicant have a right to know matters? If so, was this right breached?

o Applicant has a right to know adequate prior notice of general matters, but not necessarily particular matters – Re Macquarie University v Ong, Bond v ABT (No 2) (1989)

o Information must be disclosed if it is “credible, relevant and significant” – Applicant VEAL of 2002 v MIMIA (2003)

Does Applicant have a right to submissions? If so, was this right breached?

Procedural Fairness/Natural Justice 2

o No absolute right to have an oral hearing, but may be required where there is an issue of credibility or the applicant is disadvantaged for relying solely on written submissions: Chen v MIEA (1994)

Does Applicant have a right to legal representation? If so, was this right breached?o No absolute right to representation, except in criminal matters: Cains v Jenkins (1979)

This extends to Tribunals which are meant to be informal – Krstic v ATC (1988)o This right depends upon: WABZ v MIMIA (2004)

Capacity to understand proceedings eg: workable knowledge of English Ability to communicate effectively Legal and factual complexity Importance of decision to applicants liberty and welfare

Does the effect of delay affect the Applicant’s have a right? If so, was this right breached?o If it affected ability of decision makers to recall all events and validly assess the

decision, then yes: – NAIS v MIMIA (2005)

Exclusions: Matters of urgency may not be subject to the hearing rule: South Australia v Slipper (2004) Deliberations by Cabinet may not be subject to the hearing rule: Minister for Arts Heritage and

Environment v Peko Wallsend (1987)

Result of breach: Where a decision has been denied one of the rights above, the decision is:

o Void in Courtso Not necessarily void in tribunals

Where there is a breach, Court likely to diminish content, not exclude entirely: Leghaei v Director-General for Security (2007)

Bias ruleActual bias:

‘Actual bias must be a pre-existing state of mind that disables the decision maker from understanding or render him/her unwilling to undertake any proper evaluation of the relevant materials’ – MIMA v Jia Legeng (1998) per French J

o Essentially, the mind is incapable of alteration It is a subjective test and hard to satisfy

Apprehended bias: ‘A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the

judge might not bring an impartial mind to the resolution of the question the judge is required to decide’ – Ebner v Official Trustee in Bankruptcy (2000)

o Essentially, it must be real and not too remote that the fair-minded lay observer (or fictitious postulate) might perceive a breach when looking at the facts: Smits v Roach (2006)

Objective test of possibility, not probability

How to determine bias?1. Identify the bias2. Articulate the connection between matter and bias

Identifying the bias: Personal prejudice

o Must prove prejudice and then show connection to how it will lead to an unfair deviation and decision – e.g. VC acting as prosecutor and judge = established actual bias: Re Macquarie University; Ex Parte Ong (1989)

Procedural Fairness/Natural Justice 3

This connection must not be too far removed: Smits v Roach (2006) per Kirby J A DM cannot be tainted by the biases of their relatives: Hot Holdings v

Creasy (2002) Bias displayed at hearing

o Member constantly interrupted evidence, plausibility and truthfulness of applicant – reasonable apprehension of bias: Re RRT; ex parte “H” (2001)

o Commissioner meeting informally with witnesses: Keating v Morris (2005)o Scathing comments – decision maker lacking humanity and compassion: Baker v Canada

(Minister of Citizenship & Immigration) (1999) Public Statements

o Public pronouncements of Commissioner was critical of organization, chairman and witnesses = reasonable apprehension: Carruthers v Connolly (1997)

However a ‘mere lack of nicety’ is not enough: Re MIMA; Ex Parte Epeabaka (2001)

o Simply turning your mind to a matter is not necessarily reasonable apprehension of bias: Ex Parte Angliss Group (1969)

Domestic Tribunalso Perceived bias is generally acceptable – however dependent on circumstances: Stolley v

Greyhound Racing (1972) Standards of bias:

o Politicians/Ministers Lowest standard of bias – appears that actual and perceived bias is acceptable:

MIMA v Jia Legend (1998) However, Ministers can create a higher standard for themselves – by

promising to provide a fair, impartial or independent investigation/assessment of matters: Century Metals and Mining NL v Yeomans (1989)

Exceptions: Waiver – in public interest that person doesn’t waive right, however HC still allows it – Vakuata

v Kelly (1989) Necessity – Sun v MIEA, Metropolitan Fire and Emergency Services Board v Churchill (1998) Statute – can exclude by express words or necessarily implications – reluctant to do this

however.

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