LLB230 Lecture Notes - Lecture 12: Criminal Injuries Compensation Authority, Rsa Insurance Group, Machine Industry
Week 12 – Procedural Fairness (The Hearing Rule) and Remedies
Procedural Fairness (The Fair Hearing Rule/Right to a Hearing)
HR, i.e., a collection of rules, principles and standards that:
• Regulate the decision making process
• Guide the decision-maker and the court
• Poide/poote potetio of pesos ight
• Relates to the fairness of the procedure
• Not with the decision itself
What is the key?
• Everyone must be given an opportunity to present his/her case before a decision is
made affecting rights
Application
• All circumstances unless restricted by a clear, contrary legislative intention
• Presumed that natural justice condition any power exercised
- When a power conferred by the statute exercised affecting a person, right,
interest, legitimate expectation
When the law is silent
• About the form and extent of hearing
• Case law (for similar circumstance) will come into play
When Does the Fair Hearing Rule Apply? The Threshold Question
• Procedural fairness is not an automatic right – it depends on other factors
• An administrative decision which affects an individuals rights, interests or legitimate
expectations will attract a common law duty to accord procedural fairness → Mason
J in Kioa
• It ist the kind of interest that matters but the manner in which the individuals
iteests ae apt to e affeted
• If a idiidual is apt to e affeted i a a sustatiall diffeet fo the puli
at lage, the idiidual is etitled to a fair hearing
It ust o e take to e settled that poedual faiess is iplied as a oditio of the
exercise of a statutory power through the application of a common law principle of
statutory interpretation. The common law principle, sufficiently stated for present
purposes, is that a statute conferring a power the exercise of which if apt to affect the
interest of an individual is presumed to confer that power on condition that the power is
exercised in a manner that affords procedural fairness to that individual. The presumption
operates unless clearly displaced by that particular statutory scheme ... The implied
condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the
procedure adopted so constrains the opportunity of the person to propound his or her case
for a favorable eeise of the poe as to aout to a 'patial ijustie'.
- Minister for Immigration and Border Protection v SZSSj (2016) 33 ALR 653
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Common Law Implication
• Two limitations to the common law duty:
1. Subject to the clear manifestation of a contrary statutory intention
2. Duty arises only if rights/interests/legitimate expectations are affected in a direct
and immediate way
• Where the legislation affects the interests of individual, an obligation to accord
procedural fairness can be inferred by the common law
• The implied condition of procedural fairness is breached if the procedure adopted so
constrains the opportunity of the person to propound his or her case for a favorable
exercise of the power as to amount to a 'practical injustice'
• Natural justice rules flexible
Legitiate epetatio → some expectations should not be disappointed without first
giving a person a hearing
• E.g. an expectation may arise where a representation has been made, like policy
statements, specific undertakings, consistent conduct, renewal of some benefit
Universal Implication
• Natural justice applies to all administrative decision-making in absence of contrary
legislative statement
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Kioa v West (1985) 159 CLR 550
Facts
Mr. Kioa and his family were going to be deported. Kioa was interviewed by a departmental officer with his solicitor.
As a result, an internal paper was put together, which raised the following points;
a) He changed his address without notifying the department, which showed he never intended to lodge another
application;
b) He was involved with other Tonga immigrants, who were people willing to circumvent the law of Australia.
The decision was made taking this information into account without Mr. Kioa being given an opportunity to address it
Held – Mason J
• Section 5(1)(a) of the ADJR Act is to be read in light of the common law requirements of Natural justice (NJ).
• It only applies to those statutory sections where NJ can be implied. It is not intended to impose NJ where there
is no statutory obligation to comply with NJ.
• It is a well-known principle of common law that where a decision is intended to deprive a right, interest or
legitimate expectation, then that person is entitled to know the case against him/her.
• Right/interest is taken to mean personal liberty, status, preservation of livelihood and reputation, proprietary
rights and interests.
• The duty does not attach to every decision of an administrative character.
• Where the decision in question is one for which provision is made by statute, the application and content of PF
or the duty to act fairly depends to a large extent on the construction of the statute.
• When the doctrine of NJ or the duty to act fairly in its application is so understood, the need for a strong
manifestation of contrary statutory intention becomes apparent.
• 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?
Held – Brennan J
• When the legislature creates a power the court presumes that that power intends that the principles of NJ be
observed, unless there is a clear contrary intention.
• There is no general common law right to be accorded NJ. NJ does not exist separately from legislation.
• The principles of NJ have a flexible quality which, chameleon-like, evokes a different response from the
repository of a statutory power according to the circumstances in which the repository is to exercise the power.
• Where the statute is silent regarding NJ, it is presumed that the principles of NJ condition any power exercised.
• In some cases, the content of the principles may be diminished (even to nothingness) to avoid frustrating the
purpose for which the power was conferred.
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Document Summary
Week 12 procedural fairness (the hearing rule) and remedies. Procedural fairness (the fair hearing rule/right to a hearing) Hr, i. e. , a collection of rules, principles and standards that: regulate the decision making process, guide the decision-maker and the court, p(cid:396)o(cid:448)ide/p(cid:396)o(cid:373)ote p(cid:396)ote(cid:272)tio(cid:374) of pe(cid:396)so(cid:374)(cid:859)s (cid:396)ight, relates to the fairness of the procedure, not with the decision itself. What is the key: everyone must be given an opportunity to present his/her case before a decision is made affecting rights. Application: all circumstances unless restricted by a clear, contrary legislative intention, presumed that natural justice condition any power exercised. When a power conferred by the statute exercised affecting a person, right, interest, legitimate expectation. When the law is silent: about the form and extent of hearing, case law (for similar circumstance) will come into play. It is(cid:374)(cid:859)t the kind of interest that matters but the manner in which the individuals i(cid:374)te(cid:396)ests a(cid:396)e (cid:858)apt to (cid:271)e affe(cid:272)ted(cid:859)
