Week 3 - Grounds of Judicial Review - Natural Justice

Question 1

What are the rules of natural justice?

Answer 1

Decisions affecting rights or interests must be made fairly – a right to a fair, unbiased hearing

Question 2

What are the two main issues?

Answer 2

• When do the rules of NJ apply? (the ‘threshold’ question)
• What are the requirements of NJ? (the ‘content’ question)

Question 3

What is the threshold question?

Answer 3

Natural justice (or the hearing rule at least) does not apply automatically to all decisions

• When does a duty to afford natural justice arise?
• What if Parliament says that natural justice is not required?

Question 4

When do the rules of NJ apply?

Answer 4

NJ applies if a decision affects an individual’s:

• rights or interests – ‘is apt to affect an interest of an individual’: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
• unless Parliament otherwise provides?

Question 5

Can Parliament exclude the rules of NJ?

Answer 5

The exclusion of procedural fairness through statutory codes of procedure is possible, but is increasingly difficult to achieve.

Question 6

What happened in Saeed v Minister for Immigration and Citizenship?

Answer 6

Alleged denial of NJ - failure to tell Saeed that the evidence of her employment records were false and to allow Saeed to respond

Question 7

Requirements of natural justice?

Answer 7

• the ‘hearing’ rule (to afford a fair hearing)
• the ‘bias’ rule (to act without actual or apprehended bias)

However, the rules of NJ are flexibly applied:
What NJ requires in a given case depends on the statute, facts & circumstances of each case (Kioa v West)

Question 8

Content questions (requirements of NJ)?

Answer 8

What does natural justice require?
- A flexible set of rules
- Usually some ‘core’ content, but otherwise dependent on the facts of the case

Normally, the minimum requirements of the hearing rule are:
- Prior notice that a decision will be made
- Disclosure of an outline or the substance of the information on which the decision is proposed to be made
- An opportunity to comment on the information, and present one’s own case

Question 9

The hearing rule?

Answer 9

Prior notice of matters to be investigated

Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113

What is adequate prior notice depends on the length of the document, the issues being investigated, etc

Question 10

Adequate disclosure of relevant issues

Answer 10

Issues critical to the decision should be disclosed

Not an absolute right – eg, investigatory bodies not required to “show their hand” at every stage of an investigation

A statutory codification of procedural fairness may affect the ‘relevant issues’ that need to be disclosed

Question 11

A right to an oral hearing?

Answer 11

Very dependent on the statute, facts and circumstances

However, Procedural fairness does not require an oral hearing always to be given to affected individuals: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Question 12

A right to representation?

Answer 12

No absolute right – again depends on statute, facts and circumstances:

No right to representation granted where a man whose job was at stake had studied law, understood the process and could adequately represent himself: Cains v Jenkins (1979) 42 FLR 188

Question 13

Relevant factors to consider in regards to right to representation?

Answer 13

(1) the applicant’s capacity to understand the nature of the proceedings and the issues;
(2) the applicant’s capacity to communicate effectively in the language used;
(3) the legal and factual complexity of the case;
(4) the importance of the decision to the applicant’s liberty or welfare: WABZ v MIMIA [2004] FCAFC 30

Question 14

A right to cross-examine?

Answer 14

May be a NJ requirement where the credibility of witnesses is critical to the decision

Question 15

Timeliness in making a decision

Answer 15

Can undue delay amount to a breach of NJ?

Extreme or protracted delay may constitute a breach of NJ especially where credibility of witnesses is a key issue

Question 16

What is an example of undue delay?

Answer 16

For example, a five-year delay in making a decision about refugee status constituted a breach of NJ in NAIS v MIMIA [2005] HCA 77

Question 17

Does a denial of procedural fairness need to affect the outcome?

Answer 17

A denial of procedural fairness may not be ‘material’ unless there is a possibility that it could have changed the outcome

Question 18

Where NJ obligations may not apply?

Answer 18

There is no clear or absolute rule on the question of whether defects in NJ at an original hearing can be cured through an appeal process: Calvin v Carr (1979) ALJR 471

Factors to take into account were listed in Re Minister for Immigration; ex parte Miah (2001) 179 ALR 238 by McHugh J:
(1) what is the nature of original decision?
(2) is the original decision made in public or private?
(3) are formalities required for the original decision?
(4) is the original decision an urgent decision?
(5) what is the nature of the appellate body?
(6) what is the breadth of the appeal (de novo or limited)?
(7) what is the nature of the interest and the subject matter?

Question 19

The rule against bias - what are the two forms of bias?

Answer 19

Actual bias – requires proof of prejudgment
Imputed or apprehended bias – involves a two-step test:
1) identification of the factor which might lead a judge to decide a case other than on its legal and factual merits;
2) articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8].