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• • 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 maker’s 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bodies: Ridge v Baldwin (1964) • Public office positions: Ridge v Baldwin (1964) • They are not: o A license withdrawn: R v Metropolitan Police Commissioner; Ex Parte Parker (1953) – however, see legitimate expectations for more re: licenses Interests • Preservation of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 applicant’s 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
relevant and significant” – Applicant VEAL of 2002 v MIMIA (2003) Procedural Fairness/Natural Justice 2 . no blemish on record. This meant a wide discretion and dismissal at any time: Coutts v Cth (1985) o Where there is a wide discretion “at any time”. If changed. 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. Bond v ABT (No 2) (1989) o Information must be disclosed if it is “credible. If changed stance. was this right breached? o Applicant has a right to know adequate prior notice of general matters. 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. this rise to a legitimate expectation at minimum warned not going to be renewed. applicant already had a license and is up for renewal). applicant should have opportunity to answer allegations: Cole v Cunningham (1983) o Procedures followed – Minister’s policy to follow AAT recommendations. 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 DM’s discretion? • An Airforce officer was held “during pleasure of the GG”. but not necessarily particular matters – Re Macquarie University v Ong.e. or given an opportunity to respond: FAI v Winneke (1982) o Ratification of an international Treaty – Australia’s 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 Administrator’s undertakings – clear representation that if resigned.• How it comes to arise? o Context of license – where there is a pre-existing relationship (i.
was this right breached? o No absolute right to representation. the decision is: o Void in Courts o Not necessarily void in tribunals Where there is a breach. was this right breached? o No absolute right to have an oral hearing. 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. 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.• • • Does Applicant have a right to submissions? If so. not probability Procedural Fairness/Natural Justice 3 . 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. Court likely to diminish content. was this right breached? o If it affected ability of decision makers to recall all events and validly assess the decision. 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 Applicant’s have a right? If so.
however HC still allows it – Vakuata v Kelly (1989) • Necessity – Sun v MIEA. impartial or independent investigation/assessment of matters: Century Metals and Mining NL v Yeomans (1989) Exceptions: • Waiver – in public interest that person doesn’t waive right. 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. Ministers can create a higher standard for themselves – by promising to provide a fair.How to determine bias? 1. 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. 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. VC acting as prosecutor and judge = established actual bias: Re Macquarie University. Metropolitan Fire and Emergency Services Board v Churchill (1998) • Statute – can exclude by express words or necessarily implications – reluctant to do this however. plausibility and truthfulness of applicant – reasonable apprehension of bias: Re RRT. chairman and witnesses = reasonable apprehension: Carruthers v Connolly (1997) However a ‘mere lack of nicety’ is not enough: Re MIMA. Procedural Fairness/Natural Justice 4 . 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.g.
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