Procedural impropriety

Question 1

What does procedural impropriety relate to?

Answer 1

failure to follow correct statutory procedure and/or
duty to act fairly

Question 2

What is the historic approach to procedural impropriety relating to a failure to observe procedural statutory rules?

Answer 2

Breach of mandatory procedural requirement = decision invalidated
Breach of discretionary procedural requirement = not automatic invalidation

Question 3

What is the modern approach to procedural impropriety relating to a failure to observe procedural statutory rules?

Answer 3

would Parliament have intended that non-compliance should invalidate decision?

Question 4

What are the common law rules relating to the duty to act fairly?

Answer 4

Right to be heard
Rule against bias

Question 5

What does the right to be heard mean?

Answer 5

Person affected by public law decision should be given opportunity to present case

Question 6

What do the courts consider when assessing the right to be heard?

Answer 6

i. Whether duty has arisen
ii. Level of duty owed
iii. Content of duty and whether there is breach

Question 7

What does the rule against bias mean?

Answer 7

No one should be a judge in their own case

Question 8

What do the courts consider when assessing the rule against bias?

Answer 8

i. Context of case and
ii. Determine if there has been direct or indirect bias

Question 9

What will the court consider when assessing if the duty to act fairly has arisen?

Answer 9

extent of justice/fairness required in a given situation

Question 10

In what cases has the duty to act fairly been modified/overrided?

Answer 10

• national security
• emergency
• rationing resources
• person waived right

Question 11

What happens once the court has decided that the duty to act fairly applies?

Answer 11

court assesses level of fairness owed

Question 12

What is the general principle for the level of fairness owed under the duty to act fairly?

Answer 12

More at stake to individual = higher level of fairness owed

Question 13

What were the rules laid down in McInnes regarding the level of fairness owed under the duty to act fairly in licencing cases?

Answer 13

• Where licence is being forfeited = higher level of fairness (needs reason)
• Where mere applicant = lower level of fairness (issue is of general suitability)
• Legitimate expectation cases (applicant satisfies conditions) = medium level

Question 14

What are the five broad elements relating to the content of the right to be heard?

Answer 14

a) Notice of the case
b) Right to make representations
c) Witnesses
d) Legal representation
e) Reasons

Question 15

What considerations are made regarding notice of the case under the right to be heard?

Answer 15

• failure to inform person of evidence against them or decision affecting their interest
• reasonable time to respond before decision made

Question 16

What was the criteria to consider when deciding if an oral hearing is required laid out in the case of anderson?

Answer 16

• Subject matter and circumstances
• Nature of decision
• Whether substantive issues of fact cant be resolved in written evidence

Question 17

What principle other than the criteria in anderson should be considered for deciding if an oral hearing is required as laid out in Osborn?

Answer 17

guard against temptation to refuse oral hearing to save time/trouble/expense

Question 18

What should be considered with regard to having witnesses under the right to be heard?

Answer 18

• stake to individual
• nature of decision making body/proceedings
• whether court thinks legalistic approach is appropriate

Question 19

What is the general rule for whether a public body should allow legal representation under the right to be heard?

Answer 19

where public body’s rules do not exclude representation, they have discretion to decide

Question 20

What were the factors suggested in Tarrant that should be considered when deciding whether a person has the right to legal representation under the right to be heard?

Answer 20

• Seriousness of charge
• Likelihood that point of law may arise
• Ability of person to conduct own case
• Need for speedy process

Question 21

Is there a common law right to be given reasons for a decision by a public body?

Answer 21

No

Question 22

When should reasons be given by a decision making body?

Answer 22

• fundamental interest at stake
• unexpected decision
• no proper justification for not giving reason

Question 23

What is the presumption under the rule against bias?

Answer 23

Strong presumption that direct bias will invalidate decision

Question 24

Will direct bias invalidate a decision where only one member of a group (decision making body) is biased?

Answer 24

Yes

Question 25

why was there direct bias in Pinochet?

Answer 25

judge actively involved in organisation who was party to proceedings

Question 26

What is the test for indirect bias?

Answer 26

fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased

Question 27

What situations might invalidate a decision due to indirect bias?

Answer 27

• Participation/presence in decision by someone who is biased
• Pre-formed opinion
• Policy bias
  Not necessity