Posted: April 20th, 2015

Summary of Procedural Fairness – Hearing Rule

Summary of Procedural Fairness – Hearing Rule

Implication of Procedural Fairness

Procedural fairness will apply to most administrative decision making impacting on the rights and interest of the individual (Kioa v West (1985) 159 CLR 550, 584 Mason J)

Basis of the claim to PF

But you must nevertheless identify and explain through an analysis of the facts on what basis the individual can found his or her claim for PF.

How are his/her interests impacted by the decision? You need to identify how the decision in question will likely cause the individual concerned:

·         To forfeit a right or interest, or

·         Detrimentally impact the individual’s interest, or

·         Undermine the proper assessment of his/her application for a right or benefit.

Once you have established and described the right/interest/expectation that founds PF, you must then explain by reference to the facts how that individual’s right or interest is affected by the decision.

 

Practical unfairness

You must demonstrate ‘practical unfairness’ in the way the decision is made (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex pate Lam (2003) 214 CLR 1) (eg. A failure to disclose credible, relevant and significant information unknown to the individual might impact on his/her capacity to demonstrate how his/her interests are affected by the decision.)

 

 

 

Direct and unique impact

The impact of the decision must be direct and unique to the individual (ie. rather than the ‘public at large’. (Kioa v West (1985) 159 CLR 550, 619)

 

The detriment must be the immediate effect of the decision.

 

Scope of the Duty of Procedural Fairness

Once you have established that the individual has interests impacted by the decision and is probably entitled to procedural fairness, you need to consider what the DM needs to do to ensure the decision making process is fair.

 

In some cases, even though the individual is impacted by the decision, he/she will nevertheless have no right to PF (excluded, eg Minister for Arts Heritage & Environment v Peko Wallsend (1987) 75 ALR 218) or the PF that is actually required in the ‘circumstances of the case’ may be limited in some respect.

 

Creyke and McMillian (10.3.26) observe that, ‘all the cases exhibit a reluctance by the courts to conclude that natural justice has been wholly displaces or excluded.”

 

Is the duty of PF excluded or limited?

 

• Do the statutory provisions exclude PF, or limit PF by substituting a more limited statutory right to be heard for common law PF?

 

• What type of decision? Policy decisions or a decisions focusing on a matter of public interest may limit or exclude PF. There is no requirement of PF if a matter is determined on the basis of consideration of the public interest, rather than circumstances particular to the individual; PF is not required in the formulation of policy as opposed to its application to the circumstances of an individual case. ( focus on myriad policy factors such as the environment, economy, international obligations etc. rather than focusing on the individual Minister for Arts Heritage & Environment v Peko Wallsend (1987) 75 ALR 218.)

 

• Status of DM – Executive political DM (eg Cabinet, Governor in Council) are often required to consider public interest as opposed to interests of individual; an expert DM may be required to conduct an inquiry focuses on a matter of public interest (eg. the environment, public health) rather than the specific rights, interests or expectations of individuals (Minister for Arts Heritage & Environment v Peko Wallsend (1987) 75 ALR 218; SA v O’Shea (1987) 163 CLR 378)

 

• Do special circumstances of the case – limit the obligation provide PF?

1. Where there is a need for an urgent decision (South Australia v Slipper (2004) 135 FCR 259); a legislative obligation to maintain confidentiality regarding certain information (Minister for Immigration and Multicultural Affairs v Applicant VEAL of 2002 (2005) 225 CLR 88), or protect the integrity of a criminal investigation or police operations (K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor [2007] SASC 319), or protect national security (Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374; Leghaei v Director-General of Security (2007) 97 ALD 516)

 

If PF is not excluded what is the scope of the duty?

What procedural fairness actually demands of the decision maker and the nature of the actual hearing (scope of the PF) will depend upon the ‘circumstances of the case’.

 

The following section attempts to identify each of the different aspects of most administrative decisions; taken collectively they constitute ‘the circumstances of the case’ and are intended as a prompt to your thinking about what PF demands in the case you are considering.

 

What is the impact of the decision on the interests of the individual?

How significant the interests affected and the nature of the impact of the decision on those interests (eg. the courts insist on the need to ensure PF protection of the ‘fundamental rights’ of people seeking protection from persecution Plaintiff S157/2002 v Commonwealth of Australia (2003) 190 ALR 268)

 

Does the decision focus on the individual or broad policy questions?

If the decision focuses on the interests of the individual it will usually require PF.

 

Does the legislative framework of the decision making power require or limit PF? (legislative provisions, appeal, multi–tiered decision making)

Consideration of what PF requires should be guided by the ‘the particular statutory framework within which the proceeding takes place’ (Mobil Oil Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504).

 

Legislative provisions

The legislative framework of the decision may be silent on whether PF is required, but you should work on the assumption that the legislature intends the common law principles of PF apply to any exercise of decision-making power under the act (Kioa v West (1985) 159 CLR 550).

 

Sometimes the legislation may include PF type provisions, such as a requirement to provide notice or allow submissions, a right to a hearing. It may specify what information the notice should include or what sort of hearing is appropriate.

In most cases you should assume that these requirements are intended to guarantee fairness in the procedure and do not exclude the operation of any broader unspecified common law PF requirement necessary to ensure PF in that case (Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57).

 

Is a legislative ‘code’ of conduct intended to substitute for PF?

Occasionally the legislature will make a deliberate attempt to substitute a defined ‘code’ setting out the decision making process, which it intends to substitute for the operation of the broader, unspecified common law requirements of PF (eg. subdiv AB of the Migration Act, in Miah’s case it was held that despite what was said in the explanatory memo to the Act subdiv AB did not exclude the operation of the common law obligations of PF)

 

Significance of a right of appeal

If there is a legislative right of appeal it does not necessarily exclude the operation of the common law principles of PF during the decision making process, indeed it might be a further safeguard protecting the individual’s interests (see McHugh J Miah’s case).

 

But, in some cases where the legislative intention is to contain or limit the time and resources taken up by the decision making process for reasons of efficiency (eg. centre link application) or urgency (Marine Hull and Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476) a right of appeal may substitute for more extensive common law PF obligations applying to the decision making process (eg. in Twist v Randwick Municipal Council (1976) 136 CLR 106 to ensure the timely protection of public safety the legislation substituted a time limited de novo right of appeal to a court, rather than require extensive PF of the decision making process).

 

If the appeal is too late, limited or costly to adequately protect the interests impacted by the decision then a statutory right of appeal may be inadequate to properly protect PF (see McHugh J Miah’s case)..

 

Multi-tiered decision making

“the requirements of natural justice are satisfied if the ‘the decision making process, viewed in its entirety, entails procedural fairness’” (Ainsworth v Criminal Justice Commission (1992) 175 CLR 56, quoting SA v O’Shea (1987) 163 CLR 378, 389).

As a matter of practice a multi-tiered decision making framework will usually only require the individual affected by the decision is accorded a right to be heard at one stage of the decision making process.

 

Consider the actual point in the overall decision making process at which an opportunity to be heard is necessary to avoid adverse affects/conclusions/publicity impacting reputations or other interests (Ainsworth v Criminal Justice Commission (1992) 175 CLR 56). Postponing a hearing to a later stage of the decision may actually deny PF.

 

Because multi-tiered decision making is usually intended to allow a close expert assessment of the merits of the case (inquiry stage) proceeding the ultimate decision to be taken by a senior executive body (eg Minister) who must also take into account the public interest, the appropriate opportunity for the individual to be heard is at the inquiry stage (SA v O’Shea (1987) 163 CLR 378; Tickner v Chapman (1995) 57 FCR 451).

 

Statutory and factual criteria

 

The actual matters the DM is required to consider in order to reach a decision also provide guidance as to the scope of the PF duty.

 

• If the DM have to consider matters personal to the applicant eg. as in a refugee case, usually requires a right to make submission or even have an oral hearing (Commissioner for Australian Capital Territory Revenue v Alphaphone Pty Ltd (1994) 49 FCR 576).
• If the character or reputation of the individual the focus of the decision, may suggest an oral hearing is appropriate (Johns v Release on Licence Board (1987) 9 NSWLR 103).
• Are the matters considered highly technical or complex? May suggest a written submission (FAI Insurances v Winneke (1982) 151 CLR 342).
• Does the DM have to consider factual information and documents that might not be known to the person affected eg country information? – May require disclosure. (Minister for Immigration and Multicultural Affairs v Applicant VEAL of 2002 (2005) 225 CLR 88, 96).

 

Has there been a breach of PF?

With the above in mind consider what is practically necessary in the case and whether the DM has actually satisfied or breached the requirement of PF.

The range of common law procedural requirements necessary to ensure fairness includes, but is not limited to:

 

Notice

 

• Giving the individual notice of the decision and the matters to be considered and a reasonable opportunity to respond. (Commissioner for Australian Capital Territory Revenue v Alphaphone Pty Ltd (1994) 49 FCR 576).
• Notice should generally be in writing.
• What level of detail in terms of particulars and the amount of time necessary to respond to the notice will depend on the circumstances of the case.
• Where an individual’s livelihood or liberty is at stake a detailed notice will be required (Ansell v Wells (1982) 43 ALR 41).
• In the cases where individual is affected by the deliberations and findings of a broad based inquiry, it may only be practically possible and necessary to give general notice of the matters the inquiry is to consider (ABT v Bond (No. 2) (1988) 84 ALR 646).

 

• In some cases, in addition to specific notice it may also be necessary to provide particular information or documents that will be relied on and considered in the decision making process. (Minister for Immigration and Multicultural Affairs v Applicant VEAL of 2002 (2005) 225 CLR 88, 96)

 

• In cases, such as where the individual is making an application (eg applying for a visa or licence) it will not be necessary to provide a notice because the individual has invited the decision and should be aware of the matters that will be considered.

 

Disclosure of information considered

 

• ‘The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material … however, a decision-maker is not obliged to expose his or mental processes or provisional views to comment before making the decision in question.’ (Commissioner for Australian Capital Territory Revenue v Alphaphone Pty Ltd (1994) 49 FCR 576, 591; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 166).

 

• During the course of making the decision the DM may consider and rely on information or materials that are ‘credible, relevant and significant’, of which the person affected by the decision may not be aware, the DM may be required to disclose that information or material. (Kioa v West (1985) 159 CLR 550; Minister for Immigration and Multicultural Affairs v Applicant VEAL of 2002 (2005) 225 CLR 88, 96)

 

‘credible, relevant and significant’ is “information that cannot be dismissed from further consideration by the decision maker before making the decision.’ (Applicant VEAL of 2002 (2005) 225 CLR 88, 96)

 

‘what is “credible, relevant and significant” must be determined by the decision maker before the final decision is reached.’ (Applicant VEAL of 2002 (2005) 225 CLR 88, 96)

 

• It is not necessary to demonstrate that the material requiring disclosure actually affected the decision (Johns v Release on Licence Board (1987) 9 NSWLR 103, 116)

 

• If the DM becomes aware of prejudicial information, it may be necessary to either disclose the information (Kioa v West (1985) 159 CLR 550, 629). Merely advising the individual affected that although the DM is aware of the existence of prejudicial information he/she has not placed any reliance upon it in making the decision may not be sufficient to guarantee PF especially if the potential for subconscious influence remains (Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550).

In some cases the DM may need to withdraw from taking any further role in making the decision (apprehended bias).

 

• If an inquiry intends to make findings that are adverse they should disclose those findings and provide an opportunity to respond or present relevant evidence. (Newscorp Ltd v National Companies and Securities Commission (1984) 5 FCR 88; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564)

 

Opportunity to comment/make a submission

 

• The legislative framework of the decision may allow the individual an opportunity to make a submission (orally or in writing), which the DM is required to consider.

 

• Even if the relevant legislation makes no provision for the individual to make an oral or written submission, the circumstances of the case may mean it is appropriate to allow such an opportunity (Russell v Duke of Norfolk [1949] 1 All ER 109; Commissioner for Australian Capital Territory Revenue v Alphaphone Pty Ltd (1994) 49 FCR 576).

 

• Whether the hearing should be by way of written submissions or oral will depend on whether the issues can be presented and decide fairly by written submissions alone.

 

• Written submissions are usually adequate and appropriate where: factual information is undisputed; the decision is straightforward; the decision involves consideration of policy arguments or technical information (FAI Insurances v Winneke (1982) 151 CLR 342).

 

• Oral hearing may be necessary where: necessary to assess truthfulness or character; there are conflicting accounts of the facts (Chen v Minister for Immigration and Ethnic Affairs (1993) 45 FCR 591; Johns v Release on Licence Board (1987) 9 NSWLR 103).

 

• The point in the process when that opportunity is best provided to ensure PF will also depend on the circumstances of the case – the type of inquiry, the point in the decision making process when the individual’s interest are impacted. (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564)

 

• The type of submission (oral or in writing) appropriate in the particular case (White v Ryde Municipal Council [1977] 2 NSWLR 909), as well as other matters such as whether legal representation (Cains v Jenkins (1979) 28 ALR 219) should be allowed or whether the applicant may cross examine witnesses (Hurt v Rossall (1982) 43 ALR 252), will also depend on the broader circumstances of the case including: the issues the decision maker must consider, the complexity and the matters being considered, the capacity of the individual to represent themselves, and what the legislation actually allows. (see Creyke & McMillian 10.4.23-10.4.26)