1. THE IMPLICATION PRINCIPLE

When will the rules of procedural fairness by implied?

Administrative decision subject to ADJR Act when “a breach of the rules of natural justice occurred in connection with the making of the decision” (s.5(1)(a)) or for conduct (ss.6(1)(a)).

ADJR Act ss5(1)(a), 6(1)(a)
Section 5
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision
Section 6
(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds:
(a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct

NB – Natural justice is used synonymously with procedural fairness

1.1 The Modern Test of Implication

Kioa v West (1985) 159 CLR 550

Facts: Kioa, a Tongan citizen entered Australia for a 3 month training course. His wife later joined him. When his temporary permit expired he applied for an extension. His daughter was then born in Australia and as such was a citizen. Kioa was then subsequently arrested for being prohibited immigrant. Sought reasons for the decision and review, alleging that documents in the departmental submission were prejudicial to them.

Held:
MASON J (representing the majority view):
-   Common law duty to extend procedural fairness in the making of administrative decisions which affect rights interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
-    “It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it”.
-   This right or interest can be deprived when any of the following is affected: “personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests”. Procedural fairness is also implied by the doctrine of legitimate expectations.
-   Procedural fairness can only be implied where a decision affects a person individually in their personal capacity and not just as a member of the public.
-   General common law presumption of procedural fairness:                             “it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations of the individual citizen in a direct and immediate way”. To displace this presumption there must be “a strong manifestation of contrary statutory intention”
-   But rights must be affected in a “direct and immediate way”. For example a decision to impose a general charge for services will not call for an implication of procedural fairness. Only persons affected in a direct and immediate way.
-   The question in this case is more of content rather than whether procedural fairness will apply; “The critical question in most cases is 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?”
-   NB In this case the judges still attempt to find a head of implication to hang the case on, that is, deprivation/expectation/application.
-   What is appropriate in terms of natural justice depends on the circumstances of the case and includes:
o    The nature of the inquiry;
o    The subject-matter; and
o    The rules under which the decision-maker is acting.
-   Not all deportation orders require notice be given. However in cases where there are reasons “personal to him” such as “his conduct, health or associations”
notice and fairness should be given. In this case “the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the application…there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter”.
-   Irreducible minimum amount of procedural fairness associated with every administrative decision.

BRENNAN J (not the leading judgement/majority – but not dissenting):
-   Peremptory exercise of power valid where notice would frustrate the purpose for which power conferred.
-   The contents of natural justice may range from a full blown trial to nothingness. That is, the hearing may be like a trial, but in other circumstances the content of natural justice could be reduced to nothingness.
-   Notion of legitimate expectation is of uncertain connotation and should not be used to determine the application or content of natural justice.
-   Must have opportunity to deal with relevant matters adverse to interests.
-   The notion of legitimate expectation is of uncertain connotation, that is, the HC has accepted the doctrine of legitimate expectation but does not know exactly what it means.
-    The HC is accepting the development of the doctrine in the United Kingdom, but they can not spell out all the elements of the doctrine.
-   An expectation can arise on if there is a practice or a promise. If the department deviates from its practice it will give affected person a hearing. If there is a promise it is clearer – person expects their application to be decided consistently with the promise. But the subjective state of mind of the affected individual is irrelevant.
-   Thus if adverse allegations are made about an immigration applicant, they should be afforded the opportunity to rebut these allegations.

State of South Australia v O’Shea (1987)163 LR 378 

Facts: There was a multi-stage decision making process in this case. O’Shea had been convicted of sexually abusing children and was institutionalised. The Act provided that the offender would not be released unless “the Governor is satisfied, on the recommendation of the Parole Board that he is fit to be at liberty”. O’Shea was given a hearing by the Parole Board and gave advice that he should be released but the Governor in Council decided not to act upon the recommendation. Cabinet took into account the issue of public interesting determining whether O’Shea should be released. They felt that he should not have been granted parole because there was sufficient evidence that he might re-offend.

Held: BRENNAN J (Majority – Wilson and Toohey JJ judgement also in the majority): 
-   Duty capable of applying to Governor.
-   Cabinet makes decisions on public interest and should have unfettered discretion.
-   Only additional hearing if the additional matter is personal to the individual  this is the majority line of reasoning.

MASON CJ (Agreement with majority on most points):
-   As in Kioa “There is a common law duty to act fairly in the making of administrative decisions which affect the rights, interests and legitimate expectations of an individual, subject only to the clear manifestation of a contrary statutory intention”.
-   “This common law duty is capable of applying to the Governor in Council”.
-   Decisions of the Governor in Council are based on a Cabinet decision. Even though Cabinet is a political body it should be subject to judicial review because some of its decisions are based on “justice to the individual” rather than “political concerns”. Just because a decision has some political content it does not lie outside the ambit of natural justice.
-   The decision making process must be “viewed in its entirety”.
-   In this case the hearing before the board provided sufficient opportunity for O’Shea to present his case. That is, enough procedural fairness was granted by the board and thus no other hearing need be afforded by the Governor in Council. But, “if the decision-maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him the opportunity”.
-   There was no denial of procedural fairness in this case.
-   But Mason CJ additionally found that if O’Shea could not present on issues of public interest at parole board then there would be no procedural fairness  NB The majority did not make this comment.

DEANE J (Dissent):
-   The fact that the decision was made on political grounds not raised before constitutes powerful reason why it should be heard.

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