(4.2) JR OF LAW MAKING - PROCEDURAL GROUNDS OF REVIEW (Implication)

Question 1

Implication - what is the modern approach to PF?

Answer 1

that procedural fairness must be observed and ask whether the terms of the legislation display a clear intention to exclude the principle - even where process is private (Forbes), or where government appoints a private contractor (M61)

Question 2

How do you discuss PF in PQ?

Answer 2

speak about implication aspect broadly (ie, whether PF is owed/excluded). And then talk about the individual content grounds of PF (ie, hearing rule, bias rule)

Question 3

Source of PF under the ADJR

Answer 3

s 5(1) enables review for ‘breach of rules of natural justice’ occurring in connection with making of a decision

Question 4

Under section 5(1)(a) AJDR act, it follows that a breach of the duty to afford a fair hearing [fair hearing/bias rule] will

Answer 4

ordinarily amount to a breach of the rules of natural justice and thus establish a ground of review

Question 5

Principle of procedural fairness

Answer 5

per Kioa v West, a
CL duty of PF is implied when a DM is making a decision which affects ‘rights interests or legitimate expectations’ in an immediate way (legitimate expectations rejected in WZARH), but not when it affects the public generally.

Question 6

The implication of PF is subject only to a

Answer 6

clear manifestation of a contrary statutory intention (Kioa v West).

Question 7

Procedural fairness is implied only when

Answer 7

the exercise of a power is liable directly to affect an individual –> “aka singled out”

Question 8

Policy or political decisions and the exercise of legislative functions are unlikely lor likely to attract procedural fairness

Answer 8

UNLIKELY (SA v O’Shea)

Question 9

if someone has a legitimate expectation (estoppel vibes) is PF implied?

Answer 9

NO –> (this was rejected in WZARH) eg, the fact that a minister usually suspends w/o pay but doesn’t here is fine etc

Question 10

If a DM intends to refer to considerations that are personal to the applicant, what does PF require?

Answer 10

that the applicant be given an opportunity to respond to the adverse considerations (Kioa; Miah)

Question 11

PF may be implied regardless of whether

Answer 11

a hearing determines final rights/obligations (ie, may be implied at a preliminary/investigative stage)

Question 12

That a “hearing would make no difference” is relevant or irrelevant to the implication of PF

Answer 12

IRRELEVANT and not a reason for refusing a discretionary remedy

Question 13

[2] After acknowledging that PF is always implied, what must you assess?

Answer 13

Whether PF has been excluded

Question 14

[2 - exclusion of PF] Principle from Annetts, affirmed in Miah:

Answer 14

when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights or interests PF may only be excluded by plain words of necessary intendment’

Question 15

[2 - exclusion of PF] –> what does “ PF may only be excluded by plain words of necessary intendment’” entail?

Answer 15

meaning of words ‘unmistakeable and unambiguous language” used (Saeed)

Question 16

[2 - exclusion of PF] –> If decision only indirectly affects rights and interest (or not at all) is PF owed?

Answer 16

PF not owed –> decision must affect the individual in individual capacity in a ‘direct and immediate way’ –> must be affected in a way that’s substantially different to the public (Kioa)

Question 17

[2 - exclusion of PF] –> if clear manifestation of a contrary statutory intention (Crystal clear in legislation) is PF owed?

Answer 17

No PF owed (but note reluctance of courts to read Acts as excluding PF - eg in Miah) –> but clear words or necessary intendment may abrogate it (BVD17)

Question 18

[2 - exclusion of PF] –> If statute codifies some rules of PF but not others, does that mean the rules which aren’t codified are excluded?

Answer 18

No –> doesn’t necessarily exclude the rest, even if the statute expresses the code ‘to replace the uncodified rules of natural justice’

MUST CONSIDER NATURAL JUSTICE AS A WHOLE (Miah)

Question 19

[2 - exclusion of PF] –> is an exhaustive statement required to exclude PF?

Answer 19

Yes - Where the exclusive statement is qualified to “matters it deals with” it does not exclude natural justice to other matters (Saeed)

Question 20

[2 - exclusion of PF] –> In Miah Migration Act had a ‘code of procedure’ for dealing fairly, efficiently, and quickly with visa applications – Gov argued no procedural fairness owed –> was it actually owed tho?

Answer 20

YES

– code gave discretion to provide further info but didn’t require its provision. ‘Code’ usually implies a systematic and comprehensive statement of the law

–> here it wasn’t clear enough to preclude PF as it didn’t outweigh the subject matter in that the decision may put an applicant’s life or liberty at risk

Question 21

[2 - exclusion of PF] [A - Manifestation of statutory intention] –> In terms of a Minister’s discretionary power, can PF be excluded?

Answer 21

Yes, may be excluded absent a clear exclusion, if the Minister has discretionary power to substitute the decision for public purposes (Plaintiff S10)

Question 22

[2 - exclusion of PF] [A - Discretionary Power of Minister] –> In Plaintiff S10, did the Minister have a ‘necessary intendment’ to exclude PF?

Answer 22

Yes –> the cumulative effect of certain factors was sufficient to exclude PF (see also Kioa)

Question 23

[2 - exclusion of PF] [A - Manifestation of statutory intention] –> What were the 5 factors in Plaintiff S10 which established the ‘necessary intendment’ of the Minister to exclude PF?

Answer 23

(1) Minister accountable to Parliament –> this accountability was a check (which kinda displaced the PF required of the courts)
(2) exercise of power didn’t depend upon a request being made (applicant doesn’t bring the matter, Minister finds the matter)
(3) Minister not obliged to exercise
(4) Political interest - political value judgement (applicable where affecting broader interests)
(5) Personal circumstances are not mandatory relevant considerations

Question 24

[2 - exclusion of PF] [B - Multi-stage decision process] –> If a decision-making process involves a multi-stage process, requirements of procedural fairness…

Answer 24

must be met if the decision-making process, viewing in its entirety, entails PF (Ainsworth)

Question 25

[2 - exclusion of PF] [B - Multi-stage decision process] –> whether PF must be observed at each individual stage turns on whether

Answer 25

each stage is seen as a distinct decision (as in Ainsworth) or a holistic scheme (as in O’Shea)

Question 26

[2 - exclusion of PF] [B - Multi-stage decision process] –> where a preliminary DM has afforded PF at an earlier stage, does a later DM need to afford PF?

Answer 26

No - no requirement to afford PF unless new information that is personal (/adverse) to the individual is introduced (O’Shea) in which case PF must be afforded

Question 27

[2 - exclusion of PF] [B - Multi-stage decision process] –> Per O’Shea, where a DM is acting on recommendations from earlier stages and there’s no additional info, is PF required?

Answer 27

No, as it’s already been given at earlier stage

Question 28

[2 - exclusion of PF] [B - Multi-stage decision process] –> Can a breach of PF be remedied at a later stage?

Answer 28

Yes ONLY if the breach has not already ‘infected’ the decision (Ridge)

If remedied at later stage, the entire decision will be considered to have afforded PF

Question 29

[2 - exclusion of PF] - Facts in Kioa v West (1985) HCA

Answer 29

The Kioas- married Tongan couple, entered Aus then visas expired, Mr Kioa arrested as prohibited immigrant but they had daughter, (aus citizen by birth)

Delegate of the Minister for Immigration decided they should be deported (influced by apparent info that Mr Kioa was actively involved w ppl trying to circumvent Australia’s immigration laws)

Question 30

[2 - exclusion of PF] - What was argued in Kioa v West (1985) HCA

Answer 30

Kioas argued that they’d been denied PF as the department’s decision hadn’t been disclosed to them and they had no opportunity to respond

+ argued no consideration given to effect on daughter

Question 31

[2 - exclusion of PF] - Outcome of issue in Kioa v West (1985) HCA about whether the Kioa’s were denied PF and if so what extent Gov was required to go to in order to satisfy this requirement?

Answer 31

HCA held there was a CL right to PF to those affected by Gov decisions, which included a R to respond

(failure to disclose allegations to Mr Kioa and give him opp to respond amounted to failure to afford PF)

Question 32

[2 - exclusion of PF] - following Kioa v West what’s the critical question in most cases?

Answer 32

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?

Question 33

[2 - exclusion of PF] - following Kioa v West 4 considerations for DMs include

Answer 33

(a) Who is affected by the decision
(b) What needs to be given in the PF processes (ie, notification of adverse info which DM may rely, w regard to relevant statutory provisions that could affect PF)

(c) When PF process should start (as early as possible)
(d) Why PF is important –> DM should ensure giving proper, genuine + realistic considerations to any submissions advanced on behalf of a person affected by the decision + get any further evidence if needed

Question 34

[2 - exclusion of PF] facts in Minister for Immigration and Border Protection v WZARH (2015) HCA

Answer 34

WZARH, a Sri Lankan Tamil, entered Australia by boat - was denied refugee status, WZARH applied for independent merits review

–> reviewer was swapped, WZARH argued denial of PF bc wasn’t heard in person by final reviewer who didn’t consider scarring on WZARH’s arm

Question 35

[2 - exclusion of PF] in Minister for Immigration and Border Protection v WZARH (2015) HCA after WZARH’s appeal was allowed what happened?

Answer 35

Minister appealed to HCA arguing that Full Fed Court erred in using concept of ‘legitimate expectation’ in analysis

HCA held that despite use of now rejected concept, was no reasonable basis on which final reviewer could have refused the respondent an opportunity to be heard on how review process should proceed after withdrawal of first reviewer

Question 36

[2 - exclusion of PF] in Minister for Immigration and Border Protection v WZARH (2015) HCA what was emphasised

Answer 36

a change in procedure w/o notice to the respondent constitutes a failure to afford the respondent a reasonable opportunity to be heard.

Question 37

[2 - exclusion of PF] facts in Miah (2001) HCA

Answer 37

Minister argued that PF principles excluded by Code in Migration Act,

BUT significant new info re political circumstances in Bangaladesh (new gov capable of offering protection against Islamic fundamentalists elected) arising after the refugee application and not disclosed to the applicant

Statutory code of procedure only required disclosure of info of a personal nature to applicant

Question 38

[2 - exclusion of PF] outcome in Miah (2001) HCA to issue of whether the legislative ‘code’ operated to exclude any implied duty to provide an opportunity to comment on adverse information that is not specifically about the applicant

Answer 38

HCA held that the statutory code must be read in light of CL principles of PF (PF not excluded!!)

• -> terms of Act didn’t clearly exclude CL principles which required disclosure of new material
• -> need ‘plain words of necessary intendment to do so’

Question 39

[2 - exclusion of PF] What happened after Miah? Parliament enacted a new provision at the top of each ‘Code of Procedure’ in the s 51A Migration Act – “this subdivision is taken to be an exhaustive statement of the requirements of natural justice hearing rule inr elation to the matters it deals with”
The ‘matters it deals with’ was construed carefully in which 3 cases:

Answer 39

Saeed (2010)

SZMTA (2019)

BVD17 (2019)

Question 40

[2 - exclusion of PF] in SZMTA [2019] where there were no statutory requirements for DM to disclose, did the exhaustive statement provision meant that these non- disclosure sections excluded procedural fairness?

Answer 40

No - Exhaustive statement provision does not exclude PF obligation to disclose in relation to the provisions which it expressly applied

HCA essentially limited the scope of the section (which controlled disclosure by the AAT of certain docs), to how certain docs or info were to be dealt with and determined that the exhaustive statement provision did not exclude PF beyond that scope

Question 41

[2 - exclusion of PF] in BVD17 [2019] where there were no statutory requirements for DM to disclose, did the exhaustive statement provision meant that these non- disclosure sections excluded procedural fairness?

Answer 41

Here unlike in SMZTA YES –> PF was excluded by the exhaustive statement provision

Concluded this by interpreting the particular exhaustive statement section and drawing on differences to the equivalent section that was interpreted in SZMTA

Question 42

[2 - exclusion of PF] how is BVD17 [2019] distinguished from SZMTA?

Answer 42

Unlike prescriptions in SZMTA, here the prescriptions were not framed to confine the exhaustiveness of its operation to that provision, INSTEAD

no disclosure provisions framed to extend to the exhaustiveness of its operation, in defining the content of the Authority’s obligation to afford procedural fairness, to the entirety of the performance of the overriding duty imposed

Question 43

[2 - exclusion of PF] What was the key distinction which affected the outcome in BVD17 [2019] from SZMTA [2019]?

Answer 43

Here, instead of saying ‘exhaustive’ in the matters it deals with’ says ‘exhaustive in the matters of review’

Question 44

[2 - exclusion of PF] Per BVD17 [2019] what must be noted about sections of the Migration Act that are stated to be an “exhaustive statement of natural justice hearing rule”?

Answer 44

these statements may limit how PF applies to decisions made under the Migration Act, BUT DO NOT restrict the courts dealing with similar arguments instead under the heading of legal unreasonableness

Question 45

[2 - exclusion of PF] - facts in Plaintiff S10?

Answer 45

there was opportunity for the minister to personally allow rejected visa applicants. Minister proposed guidelines of ‘in the public interest’, and his delegates enforced this. Delegate found the applicant had no met the guidelines and thus minister never saw application

–> Usually there is an obligation for PF, where Minister provided the scope to single out the applicants and provide them with a benefit that could be subject to natural justice obligations

Question 46

[2 - exclusion of PF] - outcome in Plaintiff S10 –> was there a duty to provide PF by the Minister here?

Answer 46

No duty here –> Minister is not required to accord procedural fairness when making personal decisions on whether to exercise (or consider exercising) personal non-compellable public interest discretions to ‘lift the bar’ to the visa application system.

Question 47

[2 - exclusion of PF] Facts in Annetts v McCann –> Coroner investigating deaths of two boys, one of whom died of gunshot wound, one of thirst travelling by car in WA desert was the family entitled to make representations on matters which were possibly the source of adverse findings?

Answer 47

Yes,

Court said they should be allowed to make representations in the event adverse findings were going to be made against one of their sons – court said the reputation of the family is something that the court is going to protect

Question 48

[2 - exclusion of PF] Facts in State of SA v O’Shea (1987) HCA?

Answer 48

• provision provided that sexual offender not be released unless Governor satisfied that he’s fit to be at liberty etc…
• “is satisfied” are conditions preliminary but essential preconditions to the exercise of the jurisdiction ( a subjective jurisdictional fact, as Governor can’t decide to exercise the jurisdiction unless satisfied)

Question 49

[2 - exclusion of PF] Outcome in State of SA v O’Shea (1987) HCA?

Answer 49

• Here it was a multi-stage decision making process
• Procedural fairness afforded when heard by the Parole Board which recommended his release
• Cabinet (this is essentially the governor) decided against it in the ‘public interest’ but procedural fairness may be implied at the highest levels of decision making
• BUT high level “policy decisions” do not attract procedural fairness (Wilson, Toohey, Brennan JJ)
• If new material (regarding the public interest) personal to the individual arises at the political stage of decision making, the material must be disclosed and an opportunity afforded to make submissions
• However, no new material relied upon by Cabinet

Question 50

[2 - exclusion of PF] Facts in Marine Hull

Answer 50

• applicant had insurance business, after investigation, Treasure issued direction essentially stopping the business of the insurance company but didn’t give the applicant an opp to be heard before issuing the directions

Question 51

[2 - exclusion of PF] Outcome in Marine Hull

Answer 51

Was a requirement to give a fair hearing and give PF to insurers.

• The necessity for prompt action is widely recognized as constituting an exception to the application to administrative decisions of the duty to afford a hearing to the affected party. But the nature and extent of the exception is not well defined.

Question 52

[2 - exclusion of PF] [C - Statutory right of appeal/merits review doesn’t limit PF at first instance] Noting that there is no general rule that statute’s provision of appeal/review procedures evidences an intention to oust PF during an initial hearing (Miah), a R to appeal to an independent tribunal which is comprehensive on the law and the facts, may exclude PF at the earlier stage where

Answer 52

it’s a preliminary decision, less formal decision, urgent in nature, and no limited appeal rights, and not super important subject matter (Miah -McHugh J)

Question 53

[2 - exclusion of PF] [D- Urgency]

PF may be excluded where

Answer 53

powers must sometimes be exercised urgently (Marine Hull)

emergency powers (eg dangerous animals, infectious diseases etc) are inconsistent with duty to afford PF

Question 54

[2 - exclusion of PF] [D- Advisory Reports and recommendations]

Answer 54

investigative or preliminary decision makers may be required to observe procedural fairness where those reports can affect an individuals reputation etc

(always consider whether body is making recommendations or operative decisions, whereby even if it’s just a recommendation, still apply Kioa rights + PF requirements (Ainsworth))