LLB230 Lecture Notes - Lecture 12: Susan Kiefel, Liberation Tigers Of Tamil Eelam, William Gummow
WEEK 11: Procedural fairness
Natural justice – might have broader
association in the community
Kioa v West – the difference
- Obligations to apply procedures
fairly
- Plato quote
- Similar to ‘due process’ – ‘no
person shall be deprived of
life/liberty/property without the
due process of law’ – US
- UK began limited and extended it
in Cooper v Board of Workers for
the Wandsworth District (1863)
oRidge v Baldwin [1964]
applied natural justice to
the executive
- Applies to decisions made under
prerogative powers – Jarratt v
Commissioner of Police (NSW)
(2005)
oCCSU
oPrerogative power was
judicially reviewable on
the grounds of natural
justice
- Encourages better decision
making
- Balanced against demands of
efficiency and expediency
2 COMPONENTS:
1. Prior hearing rule;
a. Before a decision is made
the D-M must tell the
person that a decision is
going to be made, what
material was used to
make the decision
b. Right to be heard
2. Bias rule;
a. D-M can’t be bias from
personal perspective or
prior experiences in
previous role
When does natural justice apply?
1. is there a duty to accord natural
justice
a. is it express in the
legislation or implied by
other factors?
b. Cooper: no man deprived
property without being
heard
Has it been been excluded?
-Jarrett: unless they are excluded
by plain words of necessary
intendment
oRules of NJ
oMigration Act; privative
clauses excluding NJ
- The content?
ADJR Act s 5(1)(a) that a breach of NJ
occurred in connection with the making
of the decision
- Hearing rule and bias rule both in
this section
WEEK 12
Procedural Fairness (The Hearing
Rule/Right to a Hearing)
Is there a Requirement for Procedural
Fairness? The Threshold Question
“It must now be taken to be settled that
procedural fairness is implied as a
condition 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
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his or her case for a favourable exercise
of the power as to amount to a 'practical
injustice'.”
Minister for Immigration and Border
Protection v SZSSj (2016) 33 ALR 653,
[75], [82].
-it’s a common law implied
-can be displaced by statute
-needs to affect a persons rights
to the point of a practical
injustice
-
COMMON LAW IMPLICATION
Where the legislation affects the
interests of individual, an obligation to
accord PF can be inferred by the
common law.
What rights are affected needs to be
determined. – statutory interperetation
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 favourable exercise of the
power as to amount to a 'practical
injustice'.
Kioa v West (1985) 159 CLR 550
ISSUE/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.
These points were personal to Kioa
It was argued by the department that
there was no implication of NJ
The decision was made taking this
information into account without Mr
Kioa being given an opportunity to
address it
-The daughter was born in Aus
and has an Aus citizenship
-Stayed longer than the three
month visa, the cyclone in Tonga
had forced him to stay in
Australia and take a job
-Dept thought he had left the
country but he simply changed
address
Mason J:
-If there is a right or something
substantive ie legal interest
-When it applied to certain
statutory sections where NJ can
be implied (Brennan J)
-In certain circs, there may be a
legitimate expectation ie the
renewment of a license that is
renewable each year than you
have a legitimate expectations
that the license will be renewed
In the case of Mr Kioa there was a
legitimate expectation that Kioa would
not be deported without a hearing
From tonga, associated with other illegal
tongans
Bennan J approach – look to the statute
not to imply NJ but to find if PF is
excluded specifically
Mason J: Section 5(1)(a) of the ADJR Act
is to be read in light of the common law
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requirements of 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?
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.
Statutory Exclusion
Has the legislation evinced an intention
to exclude procedural fairness or some
of the elements of procedural fairness?
The intention to exclude PF must either
be through express words of plain
intendment or other features point to
that intention, such as the urgency of the
decision.
Re Minister for Immigration and
Multicultural Afairs; Ex parte Miah (2001)
206 CLR 57
ISSUE: Did the provisions of the
Migration Act exclude natural justice?
(e.g. s 54 provided that a decision could
be made without giving the applicant
the opportunity to make submissions.)
PRINCIPLE/FINDINGS: No. The practical
context will determine what level of
communication is required by the
d/maker.
The specificity of the legislation is
important. Here, procedures are to be
adopted that are in the interests of
fairness. (Glesson CJ & Hayne J, dissent)
The powers were to be exercised to
ensure PF, albeit in a manner that is
quick and efficient (Gaudron J).
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Document Summary
Natural justice might have broader association in the community. Kioa v west the difference: cooper: no man deprived property without being heard. Similar to due process" no person shall be deprived of life/liberty/property without the due process of law" us. Uk began limited and extended it in cooper v board of workers for the wandsworth district (1863: ridge v baldwin [1964] applied natural justice to the executive. Applies to decisions made under prerogative powers jarratt v. Commissioner of police (nsw) (2005: ccsu, prerogative power was judicially reviewable on the grounds of natural justice. Balanced against demands of efficiency and expediency. Jarrett: unless they are excluded by plain words of necessary intendment: rules of nj, migration act; privative clauses excluding nj. Adjr act s 5(1)(a) that a breach of nj occurred in connection with the making of the decision. Hearing rule and bias rule both in this section.
