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 makers 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professional bodies: Ridge v Baldwin (1964) Public office positions: Ridge v Baldwin (1964) They are not: o A license withdrawn: R v Metropolitan Police Commissioner; Ex Parte Parker (1953) however, see legitimate expectations for more re: licenses Interests Preservation of livelihood,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 applicants way o 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) Procedural Fairness/Natural Justice 1

How it comes to arise? 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 Australias 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 Administrators 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 Ministers 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 DMs 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)

Breach
The 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) Procedural Fairness/Natural Justice 2

Does Applicant have a right to submissions? If so, was this right breached? 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 Applicants 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 Courts o 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 rule Actual 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 Procedural Fairness/Natural Justice 3

How to determine bias? 1. Identify the bias 2. 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) 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 Tribunals o 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 doesnt 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.

Procedural Fairness/Natural Justice