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Procedural Fairness: Implication
http://www.studentatlaw.com/articles/117/1/Procedural-Fairness-Implication/Page1.html
By Student at Law
Published on 12/06/2007
 
Procedural Fairness: Implication
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.

Continued on page 2
Continued
Annetts v McCann (1990) 170 CLR 596

Does the duty of Procedural Fairness apply to investigative proceedings?
Facts: Two young boys left their job at a station in the outback bush. One died of a shot in the head and the other died of thirst. There was a coronial inquiry to work out how the boys died. The parents of the boy who died of thirst wanted to make additional submissions for evidence to protect the reputation of their son because it was possible that he had shot the other boy. They were refused. The parents sought mandamus. Section s24 of the Coroners Act 1920 provided that “any person who, in the opinion of the coroner, has a sufficient interest in the subject or result of the inquest” may give evidence. The case raised questions such as:
Are investing procedures, which are not strictly administrative, subject to procedural fairness? AND
Can the parents make submissions to the coroner on behalf of their son even if they are not directly and immediately affected?

Held: MASON CJ, DEANE AND McHUGH JJ:
-   “It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment”.
-   The parent’s interests were affected – “the interests which they represent include the protection of the reputation of their deceased son. It does not matter…whether the interest of the deceased or the interest of the appellants as parents of the deceased or both”. Therefore, the reputation of the deceased is an interest that would give rise to a duty to observe procedural fairness
-   It could also be classified as a legitimate expectation that the coroner would not make a finding adverse to their interests without hearing them.
-   The question to be raised is whether the Act displays a legislative intention to oust the common law right to be heard in the determination of any matter adverse to their interests. It was found that the legislation did not intend to destroy the common law presumption of natural justice. This was partially because the Act was devised before anybody would imagine the requirements could apply to a coronial court.
-   However, “their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased”. That is, a right to make submissions concerning matters which are identified as a possible source of adverse findings concerning their interests, does not give a right to make submissions on the general subject matter of inquiry.
-   Order of prohibition and mandamus was made. That is, the Coroner ordered to reconsider the question after the additional evidence and prohibited from publishing findings until this was done.

1.2 The Concept of Legitimate Expectation

-   The concept of ‘legitimate expectation’ was developed initially by the English Courts to expand the range of procedural fairness beyond protection of ‘legal rights’ (like liberty and property).  A legitimate expectation may be sourced to:
a)    the nature of the benefit (FAI Insurances) or activity (Heatley; Forbes)
b)    an undertaking or promise (AG (Hong Kong) v Shiu)
c)    a course of conduct (GCHQ)
d)    a published, considered statement of policy (Haoucher), including an international agreement that Australia has entered into (Teoh)
-   Whether a person has a legitimate (“reasonable”) expectation is an objective test – it does not depend on the person’s actual knowledge or expectation (see Teoh, below). 
-   However, having identified a legitimate expectation, a reviewing court can only provide procedural protection.  A reviewing court cannot ensure that a benefit is granted, nor hold the administration bound by its policies, representations, promises or regular procedures (see Quin’s case and Lam’s case). 

NB In Lam’s case, the reservations which members of the High Court have expressed about Teoh’s case ad about the continuing utility of the  concept of legitimate expectation.

-   Where there is already a recognised right or interest which attracts a duty to act fairly, the concept of a legitimate expectation appears somewhat unnecessary. However, the concept has been a useful judicial means of expanding the scope of the applicability of the rules of procedural fairness. For example, in cases where:
a)    The decision-maker has given some undertaking or assurance to the person likely to be affected by the decision that he or she would be consulted before any decision was made: R v Liverpool Corporation Ex Parte Liverpool Taxi Fleet Operators’ Association;
b)    The decision-maker has a policy or practice whereby it acts in a certain way (such as giving notice of the receipt of building application to adjoining landowners and invites submissions)
c)    Regular application of the policy or practice creates an enforceable legitimate expectation that such notice will be given, and that any representations made will be duly considered before any decision is made: AG for HK v Ng Yuen Shiu (1983); Council of Civil Services Unions & Ors v Minister for the Civil Service (1985); Kiao v West (1985); Haoucher v Minister of State for Immigration and Ethnic Affairs.
d)    There is, in existence, some law, convention, treaty or policy (not otherwise displaced by some statutory or executive indication to the contrary) which gives rise to a legitimate expectation that its provisions will be followed or otherwise taken into account in the decision-making process: Minister for Immigration and Ethnic Affairs v Teoh (1995)
e)    The person likely to be affected has an interest which, although not presently classifiable as, and falling short of, a legal right and not presently held, is nevertheless important enough that some degree of procedural fairness be afforded.                                                      
Thus an applicant for a licence or an approval, who has never held a licence or has never been granted an approval before, is still entitled to a measure of procedural rectitude (proper consideration and no bias), even though there may not be an actual right to be heard: McInnes v Onslow-Fane
-   Legitimate expectations must be reasonably based: (Kiao v West)
-   Consequence of finding that there exists a legitimate expectation that a decision-maker will act in a certain way; Does NOT compel a substantive right BUT

a)    Affords a right to be heard before a decision is made or action taken: Salemi v MacKellar; AG for the State of NSW v Quin; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning
b)    Does not necessarily compel the decision maker to act in that way, but if the decision maker proposes to make a decision inconsistent with the legitimate expectation, the person affected must be afforded procedural fairness (That is, be given notice and an adequate opportunity of presenting his or her case): Teoh.
-   The legitimate expectation of being heard:
a)    Does not arise in relation to the exercise of every executive power: Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning AND
b)    May be excluded by the clear and unambiguous legislative (or other) expression of a contrary intention: Medway v Minister for Planning.
-   For example, where the persons relevantly affected are numerous or difficult to identify (either at present or in advance), such a contrary intention will be more readily inferred: Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning
-   For legitimate expectations arising under policy (for example that consultation will take place before decision made):
a)    Can only be based upon the current policy
b)    May be affected when the policy is substituted by a new policy and does not itself prevent the adoption of any such new policy: AG (NSW) v Quin
c)    Will be extinguished upon the adoption of a new policy inconsistent with the legitimate expectation based on the old policy: AG (NSW) v Quin; Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning
d)    Will require decision-maker to give applicant an opportunity to be heard if departing from published operative policy: Haoucher v Minister for Immigration and Ethnic Affairs

Attorney-General for Hong Kong v Ng Yuen Shiu [1983] 2 A 629

PRINCIPLE A legitimate expectation “may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such inquiry.”

Facts: The Government of Hong Kong decided to increase the number of deportations of illegal immigrants, but, as a result of a petition undertaken immigrants from Macau were to be interviewed on a case by case basis and decided on the merits. An immigration officer ordered the deportation of an immigrant from Macau without the interview.

Held: LORD FRASER OF TULLYBELTON:
-   “a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if he has ‘a legitimate expectation’ of being accorded such a hearing”.
-   Legitimate expectation arises where there is “some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision” (from a promise).
-   Legitimate expectations may not be legal rights, but must have some reasonable basis.
-   This principle is applicable whether the person is an alien or a citizen.
-   A public authority must, therefore, stick to its promise unless it interferes with its statutory duty.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ)

PRINCIPLE: In matters where national security (prerogative power) is at stake the obligation to afford the principles of procedural fairness may be displaced.

Facts: Employees at a national security organisation, “GCHQ”, had been exposed to a regular practice whereby the Minister would consult with them before altering the conditions of employment. However the Minister prohibited union membership without consultation or notice. The Minister argued affording these elements would compromise national security by indicating the vulnerable areas of the operations. The unions appealed; legitimate expectation was an issue.

Held: LORD DIPLOCK:
-   Legitimate expectation arises from regular practice: “by depriving him of some benefit or advantage which…had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment”.
-   To qualify as a subject for judicial review, the decision must have consequences that affect a person either by:
a)    Altering their rights and obligations; or
b)    Depriving them of some benefit of advantage which either:
i)    They had been permitted to enjoy in the past and could legitimately expect to continue enjoying until there are communicated to him rational grounds for withdrawing it with an opp for him to comment; or
ii)    They had received assurance from the decision maker it would not be withdrawn without them first having been given the opportunity to give reasons why it should not be withdrawn.
Note: This is a legitimate not a reasonable expectation - Reasonable would be too broad a criterion.
-   A legitimate expectation arises where it is the regular practice of the authority to permit it to be carried on.
-   Prerogative power is part of the common law; not derived from statute.
-   There is no reason why a decision making power that is derived from a common law (prerogative) and not a statutory source, should for that reason alone be immune from judicial review.
-   It is the subject matter of the prerogative, not the source, which is crucial.  The following types of affairs are immune; treaty-making, control of the armed forces, defence of the realm, the prerogative of mercy, honours, dissolution of Power and appointment of Ministers are immune.
-   There are three heads under which administrative action can be subject to judicial review:
a)    Illegality; jurisdictional error
b)    Irrationality; Wednesbury unreasonableness
c)    Procedural impropriety
All three can apply to decisions derived from prerogative powers. These three will probably be the only relevant head with respect to legitimate expectations.
-   It depends on the subject matter of the decision, the executive functions of the decision maker and the circumstances of the decision.
-   Here the employees had a legitimate expectation of continued union membership, based on their past membership. But there is a trade off with the consideration of national security. In this case, national security wins.

FAI Insurances Ltd v Winneke (1982) 151 LR 342

PRINCIPLE: First case to find that Governor-in-Council could be subject to procedural fairness. Renewal of licences gives rise to a legitimate expectation (that is the promise).
Facts:
The Workers Compensation Act 1958 (Victoria);
Section 72(1)(a) provided for approval by the Governor in Council of companies acting as insurers for workers compensation liability. 
The Workers Compensation Regulations 1975; 
Regulation 201 prohibited companies engaging in the insurance business without having first obtained the approval of the Governor in Council. 
Regulation 202 (1) provided for approval to be given on an annual basis. 
Regulation 202 (2) provided that in granting an approval or renewal "regard shall be had to the commitments and financial position of the applicant and in the case of renewal to the observance of these regulations by the applicant". 
On application for renewal of its licence the applicant was given a provisional six-month renewal and statement by the minister drawing the applicant's attention to certain financial issues and certain other criteria they were required to satisfy before July 1981.  The full renewal of FAI's license was later refused.

Held: MASON CJ:
Referred to the fundamental rule that a statutory authority, which has power to affect the rights of persons, is bound to give such persons a hearing before exercising the power.
This rule is not limited to cases where the exercise of the power effects legal rights only, but also extends to the exercise of a power which affects an interest or privilege or which deprives a person of a legitimate expectation in circumstances where it would not be fair to deprive them of that expectation without a hearing.
-   An applicant for renewal of a licence generally has a legitimate expectation that his licence will be renewed.  Unless the licensee has been given to understand that the renewal is not to be expected, then non-renewal of the licence may seriously upset his plans and cause him economic loss and hardship.  Therefore a duty to hear the applicant before a non-renewal decision is made will be implied where there is a legitimate expectation of renewal

Does the appellant here have a legitimate expectation that its approval will be renewed? This depends on the:
a)    Nature and effect of the statutory power,
b)    Circumstances of its exercise,
c)    Fact that the power is reposed in the Governor in council

a)  The Nature and Effect of the Statutory Power
The court will not normally regard statutory discretion, the exercise of which will affect the rights of the citizen, as absolute and unfettered unless parliament has plainly demonstrated a contrary intention.
The general rule is that the extent of the discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment. 

b) The Fact that The Power is reposed In the Goveror in Council.
When a statute confers a discretionary power on the Governor acting the advice of the executive council it is usually assumed that the governor will act in accordance with the advice tended to him and not otherwise.

c) Circumstances Of Its Exercise
Where the function reposed in the Governor in Council is to decide an individual's application  for the renewal of an approval - a matter not be decided on general policy but by reference to considerations personal to the applicant (regulation 202) - then the discretion will unquestionably attract the duty to comply with the rules of natural justice. 

The difference between the nature and character of the Governor in council and that of an ordinarily statutory officer is not sufficient to preclude the implication of procedural fairness. 
However, the difference between these two repositories of power will be reflected in the content of the duty to afford procedural fairness in each case.  Thus it is impossible to suppose that parliament intended the Governor in council to conduct a quasi-judicial hearing, rather, it is more likely to suppose that the Governor in council should give the applicant an adequate opportunity to present its case, for example by written submissions.

Continued on page 3
Continued
Attorney General (NSW) v Quin (1990) 170 LR 342

PRINCIPLE: The executive cannot by representation or promise disable itself from performing a statutory duty; this includes the adoption of, or acting in accordance with, a new policy.

Facts: The NSW magistracy was reorganised. Quinn was a former magistrate not recommended for appointment. The Attorney General departed from the previous method of recommending former magistrates. Quin challenged this.

Held: APPEAL ALLOWED:
-   It was argued that Quin had a legitimate expectation to be appointed as 95 of his colleagues were and a failure to do this would be a breach of procedural fairness. However, this argument was not correct as this would require a substantive remedy. Mr Quin’s legitimate expectation affords no ground for being treated under the old policy, that would impose on the merits by compelling the Attorney General to disregard the suitability of applicants.
-   The remedy to cure a legitimate expectation is procedural, “the view that legitimate expectations may attract substantive, as distinct from procedural, protection encounters the objection that it will entail curial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances”.
-   No legitimate expectation can arise that the aggrieved will receive a hearing to determine why the old policy should apply to him. No legitimate expectation can arise that he would be heard under the old policy.

BRENNAN J:
The first question to ask is: whether or not the exercise of a statutory power is (or is intended to be) conditioned by the duty to observe the rules of procedural fairness?
Only if the power is so conditioned should the concept of legitimate expectation have any role to play. Focus attention on the content of procedural fairness, that is, what should be done to afford procedural fairness to a person whose interests might be affected by the exercise of the power.
Brennan is concerned to restrict the concept of legitimate expectations to the identification of interests, which ought not to be adversely affected without according natural justice to the person having the interest. The concept should not be used to determine the legality of the exercise of a statutory power, since to use the concept in this way would allow the courts to usurp the direct exercise of the relevant statutory power on the basis that the repository of that power had exercised it in a way that disappointed the expectations of some individual.

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

Facts: MIEA ordered the deportation of Haoucher under the Migration Act. On review, the AAT remitted the matter to the Minister for review recommending deportation be revoked. The MIEA did not accept the recommendation. Previously the MIEA had tabled a report to Parliament stating that recommendations of AAT should be overturned by the Minister in exceptional circumstances only (tantamount to a promise). Haoucher sought review of denial of procedural fairness in that the MIEA failed to give him a hearing before making the second decision.

NB: Distinguish Quin because it is a departure from policy, rather than a change of policy. Here, Haoucher should have a legitimate expectation for hearing (PF).

Held: DEANE J:
-   Legitimate expectation gives rise to an entitlement to procedural fairness.
-   There is a strong presumption that the legislature intends procedural fairness to apply and this is especially strong when “a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in a individual capacity”. The rationale for this depends on “ordinary notions of what is fair and just”.
-   The content of procedural fairness “does not call into play a body of rigid procedural rules”. Some cases will require a full personal hearing others will require something less.
-   Where a person has incurred the expense and trouble of going to a Tribunal “there will arise a new and distinct legitimate or reasonable expectation that the Minister will accept the findings and abide by the recommendation of that Tribunal. If that be so, then quite apart from the context provided by the published government policy” then procedural fairness may apply. But decided on narrower grounds.
-   “It is preferable to decide the appeal on the narrower ground propounded”, that is, the legitimate expectation occurred with respect to the government policy. As long as a departure is operative, a deportee can see the policy as the critical reference point and be given an opportunity to be heard about those exceptional circumstances.
-   Haoucher was entitled a hearing as to whether the recommendations should be overturned due to exceptional circumstances.

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 LR 273

Facts: Teoh married his deceased brother’s wife, and had four kids with her. His wife was a heroin addict. Teoh was deported.
ISSUE: Should the Government be able to make representations to the international community without them having an effect in Australia?
Teoh argued that the MIEA should have had regard to the primary interests of the children, which would be consistent with Australian obligation under the convention. He argued that he should have been given a hearing to put forward what the best interests of the children were and, therefore, taking into account the interest of the children, should not have been deported.

Held:
-   Ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies sill act in accordance with the convention.
-   That positive statement is adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the convention.
-   No link between legitimate expectation (right to a hearing) and duty to inquire into certain matters because the latter involves substance more than procedure.
-   Ratification by Australia of an Intentional Convention is a positive statement by the Executive Govt to the rest of the world that Australia will act in accordance with its treaty obligations and is an adequate foundation for a legitimate expectation.
-   Knowledge of the affected person of the policy is irrelevant (Teoh didn’t actually know of Convention).
-   If the Executive wished no legal consequences from treaty ratification or policy statement, they need to make it specifically clear.

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

Facts: Lam was convicted and jailed for dealing with heroin. While in jail Lam was given notification from the MIMA that he is liable for deportation because he has not satisfied the character test. The mother of children then goes missing and so Lam is forced to put his three children in the care of a family friend. Since being in jail, he has become engaged to woman that he intends to marry and she has close relationship with the children. He gives a submission to the MIMA saying that he has his life back on track and asking for his deportation to be reconsidered. He attached contact details of children’s carer and that she was also willing to make submissions. The office of MIMA wrote to Lam asking him for details of the carer because they said they would be contacting her (even though the details were attached to his application). The fact that they said they would contact her and did not, amounted to a breach of procedure. This gave rise to leg expectation that the department would contact the carer (Tran). When the department sent a brief to the MIMA, it included references to a letter Tran wrote to department of her own accord) and incorporated her submissions. The MIMA took these into account.
ISSUES:
Did Lam have a legitimate expectation that the department would contact the carer, Tran?
When does legitimate expectation arise?
Furthermore, does the failure to follow a procedure, amount to a breach of procedural fairness when the file that was given to the MIMA included submissions given by Tran?

Held: GLESSON J:
-   Involves an argument to convert a procedural right into substantive satisfaction. This gives an applicant the right to procedure, it does not make good a legitimate expectation.
-   Lam argues the legitimate expectation arose because of the letter the department sent him and therefore they should have contacted the carer.
-   Lam only had a right to a hearing because the department said they would contact the carer and they did not.  Lam asking for a hearing goes close to asking the court to grant substantive satisfaction of the legitimate expectation of Lam.
-   The court will not elevate the expectation of a hearing to something where the expectation is satisfied even when there is no disadvantage. There was no unfairness demonstrated here.
-   Mere departure from a representation is not enough. In Haoucher, there is departure from representation but there was also a disadvantage (unfairness) because MIMA took into account evidence from police etc and Haoucher was not given a hearing. In this case, there was no unfairness to Lam. There is no subjective expectation on Lam’s part, there is no loss of opportunity, no unfairness (practical injustice) to Lam.
-   Note: Gleeson suggests that he would take into account subjective expectation on part of applicant.

McHUGH AND GUMMOW JJ:
-   The mere fact that you have an expectation, does not mean the doctrine will apply. The doctrine doesn’t grant substantive rights, it only gives procedural fairness.
-   Since Kioa, the doctrine of legitimate expectations is not useful. It is only useful in looking at the content – what should the decision-maker have done in giving the person a hearing given that a legitimate expectation arose.
-   The propositions that legitimate expectation put by Mason CJ and Deane J in Teoh are fictions. That is, legitimate expectation DOES depend on the state of mind.
-   State of mind is relevant – the legitimate expectation must at least be reasonable.
-   If the doctrine is to have relevance in the future it probably only relates to the content and not the implementation

CALLINAN J:
-   Teoh represents the high water mark of the doctrine.
-   Prefers that there be actual expectation.

Continued on page 4
Continued
2. PROCEDURAL FAIRNESS & ESTOPPEL

Private law: if a person has been induced to assume a state of affairs exists, has existed or will exist, including a legal state of affairs, the correctness of which is later denied, a court of common law or equity can do what is required to prevent that person from suffering detriment from having relied on the assumption.
Public law: as a general rule the private law doctrine of estoppel does not apply to the exercise of public functions (Kurtovic) In Australian administrative law there is little or no room for the operation of the private law doctrine of estoppel because administrators cannot fetter their power to act in the public interest.  Certainly it would fly in the face of the ultra vires doctrine to allow them to widen or restrict their powers by making enforceable representations or undertakings: Kurtovic.

-   Can decision-maker be estopped from making a representation if a person has relied on that representation to their detriment?
-   Does this apply to administrative law? The Court does not think that the doctrine of estoppel should apply, BUT, there is a window of opportunity where it may apply.

Elements of Estoppel: (From Kurtovic)
-   There must be a clear and unambiguous representation or undertaking of a present or future act or intention
-   The person making the representation must have intended that it be relied on
-   There must be detrimental reliance (not emotional or psycho detriment)
-   It must have been reasonable to rely on the representation. (It is not reasonable to rely on policy statements because government is free to change its policies)
-   Doctrine of estoppel doesn’t apply to public law cases.

Estoppel and Procedural Fairness (Substance vs Procedure)
•    Note the difference in outcome between estoppel and procedural fairness.
•    Where courts decide that a person has a legitimate expectation then courts require the person to be given a hearing – a purely procedural benefit.
•    High Court has always refused to look at the notion of a substantive right arising under the Procedural Fairness doctrine; they do not want to convert expectation into any rule or substantive right. They simply require the decision maker to hold the hearing.
•    On the other hand, estoppel would have a substantive outcome.
•    Procedural fairness is a form of estoppel so long as there is no inconsistency with a statutory duty

Peninsula Anglican Boy’s School v Ryan (1985) 69 ALR 555

Facts: The applicant applied to the Minister for Education (Ryan) for a grant to help establish a new school.  After the application was lodged the Government changed its guidelines on provision of grants.  On advice from the Commonwealth Schools Commission the Minister refused the application. The applicant challenged the commission’s conduct and the validity of the Minister’s decision under the ADJR.

PRINCIPLE ► There can be no estoppel on grounds of policy change. No fettering principle.

Held: WILCOX J:
-   No-fettering principle (of not fettering the future exercise of statutory discretion) was applied.
-   Do not have to give notice to affected parties of a change in policy.
-   There was nothing improper or illegal in the Minister adopting the new policy guidelines, provided the Minister remained ready to consider argument of particular applicants that their cases should be regarded as exceptional. 
-   On the matter of the Commission’s conduct, Wilcox J held that once the Minister has adopted a policy, it would be futile for the commission to do anything else other than to advise the minister upon the relationship between that policy and the particular application. That is, the old policy is not a relevant matter any more.
-   On the applicant’s claim that the Minister breached her duty of fairness because, without giving notice, she applied the new policy, instead of the old one which was in place when the application was made, he said fairness had not been breached.  Wilcox J’s reasoning was that there had been no case where it was held that a decision-maker is bound to give an affected person notice of the policy considerations likely to be taken into account in arriving at their decision.  To impose such an obligation would seriously undermine efficiency, because policy considerations change all the time.

Kurtovic v Minister for Immigration, Local Government & Ethnic Affairs (1990) 92 ALR 93

Facts: Kurtovic was convicted of manslaughter and sentenced to 10 yrs jail. He had been in Australia for less than ten years and the minister’s delegate ordered his deportation pursuant to s12 Migration Act. The AAT reviewed the decision and the deportation order was revoked.
Kurtovic then received a letter stating that any further conviction that would make him liable for deportation will mean the question of deportation will be reconsidered by the Minister. Next year the Minister’s successor ordered that Kurtovic be deported on the basis of parole and medical reports. He was offered the opportunity to make written submissions but was not shown these reports. Kurtovic sought review under the ADJR Act.
Einfeld J held that although there was no statutory bar on making the second order on the basis of the same facts as the first order, the Minister was estopped from executing the second order because it would be an unconscionable withdrawal from the promise not to deport Kurtovic unless a new event occurred. There was also a legitimate expectation that Kurtovic would not be deported unless new material was placed before him. Also an issue of failure to consider relevant considerations (recidivism and mental health) and irrelevant considerations were also taken into account. Minister appealed.

PRINCIPLE: Estoppel requires proof of detrimental reliance. In administrative law it will be denied on 3 bases: ultra vires result, frustrating a statutory duty and frustrating a statutory discretion.

Held: GUMMOW J:
Estoppel in administrative law
-   An estoppel by representation can arise from an implication drawn from an express statement.
-   This representation must be sufficiently clear and unambiguous (here it is not). The statement was a warning, not an exhaustive expression of the grounds on which the deportation would be reconsidered.
-   Estoppel can not be used to force the fulfilment of a representation that would render the decision maker’s exercise of power ultra vires.
-   Estoppel is generally a private law principle, making it hard to apply to administrative law.
-   Principle regarding estoppel with respect to administrative law is that:     “Estoppel cannot operate to prevent or hinder the performance of a positive duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public”.
-   No real distinction between a statutory duty and a statutory discretion as regards the applicability of estoppel. Where they are both there for the public interest, there can be no estoppel where its permission would render the performance of the duty or the exercise of the discretion frustrated.
-   Three bases of denying estoppel: ultra vires result, frustrating a statutory duty and frustrating a statutory discretion.
-   Estoppel would undermine parliamentary sovereignty and is against the no-fettering principle.

a) Estoppel and ultra vires
-   There are some cases where a decision maker cannot make a second decision where his power was expended by the making of the first decision, making the second decision ultra vires. This is not estoppel.
-   Qualification: Distinguished policy making and operational decisions (Verwayen). Operational decisions, for example, contracting, defending actions in tort; in these situations the Government is not making a decision but acting like a private person. So in the course of its operations the doctrine of estoppel may operate.
-   Cases where there are directory (not mandatory) provisions whose observance can be waived. Where the directive is mandatory, estoppel can not be used. Similarly, where they are directory, their non observance is not ultra vires, nor can it be hindered by the doctrine of estoppel. This is a matter of statutory construction.
-   Ultra vires for lack of authority; a third party is entitled to assume the person he is dealing with has authority – for example, delegation. This area of law is unclear.
-   Cases where the government in statute derived powers enters into contracts or transfers property at will are characterised by a policy/operational decision. Decisions which are the object of a statutory discretion (that is, at the policy level) cannot be subject to private law rules including estoppel, decisions on a operational level are subject to these rules.
-   The policy/operational distinction can, however, be hard to define as some operational decisions will have elements of discretion. “the more ‘operational’ a power or duty may be, the easier it is to superimpose on it a common law duty of care” (or the operation of estoppel). Estoppel was found to be applicable in Waltons Stores (Interstate) Ltd v Maher where there was no issue of statutory discretion.
-   Problems arise where the operational decisions are not easily divorced from the statutory discretion conferred in the act; that is, they are also “planning” or “policy” decisions. Gummow J thinks in this instance, estoppel would not be applicable.

b) Estoppel and detriment
-   Does the party seeking to raise the estoppel have to have suffered detriment due to his reliance on the representation? There must have been reliance and detriment would occur if the representation is not adhered to.
-   In public law, the representee must show “detrimental reliance”. What constitutes detriment and reliance is open to debate. Here there has been no detriment.

c) Unfairness
-   The defendant argues the order should be set aside on the basis of procedural unfairness. This would fall within the ‘catch all’ provisions of the ADJR Act, s5(2)(j) which applies to a decision that would be “otherwise contrary to the law”. This may be able to be made out with respect to different treatment of 2 applicants (Sunshine Coast Broadcasters v Duncan), but can not be made out with respect to different treatment of the same applicant at different times. This would be ‘unfairness’ in a substantive and not procedural sense, which via Kioa is not an avenue of judicial review.
-   There is some support in the UK for substantive unfairness to be made out by “judicial balancing” between private and public interest. Gummow J sees this as encroaching on the merits of the case and would also go beyond/ replace the ultra vires doctrine. Unfairness in this sense is therefore not a grounds of judicial review.
-   There appears to be a concept of unfairness in a substantive sense arrived at by judicial balancing between public and private interests.                                     Two fatal objections:
i) The question of where the balance lies between public and private interests is a question of the merits;
ii) The conclusion that a representation/decision is ultra vires will preclude its effectiveness.
-   Public interest (decision makers should not be allowed to act ultra vires); private interest is the interest a person has in a representation being made good. If courts accept substantive unfairness - the court will have to do this balancing. Court rejects this – will not do it because it goes to the merits.
-   BUT compare with Quin and Mason’s decision.

-   Denial of procedural fairness did occur in two ways:

i)    Procedural fairness required the nature of the allegations in the parole report to be disclosed to Kurtovic for comment; and
ii)    The criminal deportation policy generated a legitimate expectation entitling Kurtovic to the procedural protection that the Minister put before him the matters on which the decision turned.
Difference in outcome between procedural fairness and estoppel:
-   Procedural Fairness: Where the courts decide that a person has a legitimate expectation, the person must get a fair hearing. Courts do not want to convert the expectation into any kind of rule or substantive right.
-   Estoppel: If it were to operate, it would have a substantive outcome.
-   Undertaking/announced policies only attract procedural protection (Quin). For example,
o    If departed from in the individual case (Teoh)
o    If the application of the policy involves consideration of circumstances personal to the individual affected (Haoucher)
-   Where a particular procedure is promised, the procedure that accords with procedural fairness will be enforced, which may be different from the promised procedure (Quin).
-   A legitimate expectation cannot fetter changes in government policy (Quin).
-   No requirement of procedural fairness to give notice of a change of policy (Peninsula School v Ryan)
-   Common law principles of procedural fairness unlikely to be implied in making policies and rules.

What this case may mean; Procedural fairness has no power to stop the Crown when it has properly exercised its duty and power to act for the public good.

NEAVES AND RYAN JJ:
*Agreed with Gummow J.
Attorney-General (NSW) v Quin  (1990) 170 CLR 1

PRINCIPLE ► Appropriate relief for denial of PF should not provide substantive, but rather should provide procedural protection.

Continued on page 5
Continued
Held: MASON CJ: (on procedural fairness)
-   Doctrine of procedural fairness does NOT operate to prevent change of policy.
-   Mason CJ says that public interest necessarily comprehends an element of justice to the individual (not just about preventing ultra vires actions by decision-makers) because it is in the public interest that individuals be treated fairly.

OBITER: In some situations, it may be that the court will say that it is more in the public interest to allow the doctrine of estoppel to operate where it would be a grave injustice to the individual if decision-maker is not estopped.

-   “it is the presence of a legitimate expectation which conditions the existence of a claimant’s right to procedural fairness and the corresponding duty of the decision maker to observe procedural fairness in the treatment of the claimant’s case.” 
-   Mason CJ then listed (not an exhaustive list) that a legitimate expectation could be created by the giving of assurances, the existence of a regular practice, the consequences of denial of the benefit to which the expectation relates, or the satisfaction of statutory conditions. In the absence of a legitimate expectation there is no corresponding duty to accord fairness. 
-   From Kioa, however, that legitimate expectation can consist of an expectation of a procedural right, advantage or opportunity.

What this case may mean; Lists when a legitimate expectation may arise such that a duty to accord procedural fairness may follow.

Re Minister for Immigration and Multicultral Affairs; Ex parte Lam [2003[ HCA 6

-   The High Court in Lam, because of constitution and the separation of powers, all they are prepared to do in this area is procedural.
-   That is, estoppel does not apply unless in an operational capacity OR possibly where Mason CJ says.

3. STAGES AT WHICH PROCEDURAL FAIRNESS SHOULD BE AFFORDED
3.1 Investigations and Preliminary Decisions

-   Although there have been cases where the courts have held that rules of procedural fairness were not implied in relation to the making of what may be termed ‘preliminary decisions’, the point has now been reached, where generally speaking, there would seem to be no difference in principle as to the observance of requirements of procedural fairness between so called final decisions and those which are only preliminary: Weiseman v Borneman; Lewis v Heffer.
-   Australian courts have held that investigative proceedings (Annetts v McCann) and preliminary stages (Ainsworth v Criminal Justice Commission) require procedural fairness.
-   So, where a decision making process involves different stages or steps before a final decision is made;
a)    The requirements of procedural fairness are ordinarily satisfied if the decision making process, viewed in it entirety, accords procedural fairness: State of South Australia v O’Shea
b)    A right to be heard ‘later’ will NOT ‘cure’ a lack or deficiency of procedural fairness UNLESS:
i)    The steps or stages in the decision making process ; and
ii)    The various persons and bodies involved in that process;
all form part of the one decision making process: Ainsworth
-   It is not always sufficient say that if the rules of procedural fairness apply to the procedure as a whole they do not have to be followed in any individual stage. The question always remains in every case whether fairness requires that a hearing be given at, relevantly, a preliminary stage: Rees v Crane (1994)
-   There is no absolute rule that procedural fairness need not be observed at one stage of a procedure if there is to be, under the procedure, an opportunity to be heard later; particularly so where the relevant legislation is silent as to the procedure to be followed at each stage: Rees
-   As a matter of statutory construction and interpretation, legislation providing for an opportunity to be heard later is not to be construed as necessarily excluding a right to be informed and heard at the first or earlier stage: Rees v Crane.
-   Conclusion that natural justice does not require that a person must be told of complaints against him and given chance to answer them at the particular stage in question is usually reached having regard to factors such as whether
a)    The investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later
b)    That the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity,
c)    That no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice,
d)    That the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage.
e)    In Rees v Crane Privy Council said there was no absolute rule to that effect even if there was to be, under the procedure, an opportunity to answer the charges later.
f)    The existence of an opportunity to be heard later is a point in favour of the general practice BUT NOT CONCLUSIVE.

-   As to an opportunity to be heard at a preliminary stage:
a)    As a matter of statutory interpretation, statutory silence (as to any right to be heard at such a stage) is not to be construed as necessarily excluding a right to be informed and heard at that stage: Rees
b)    A hearing at that stage may, however defeat the legislative intent and be contrary to the public interest.
c)    Indeed, where the legislature makes express provision for a right to be heard at a later stage, and the earlier stage or stages are only and truly preliminary, a court may well hold that there is no duty to afford procedural fairness at the earlier stage or stages: Medway v Minister for Planning (1993).

Annetts v McCann (1990) 170 CLR 596

Facts: The Coroner inquired into the death of two boys in the Western Australian desert.  The counsel representing the families were permitted to examine and cross-examine all witnesses who gave evidence at the inquiry.  However, the Coroner refused counsel to make submissions on a wide range of matters at the close of evidence.  Section 24 of Coroners Act 1920 provided that any person with a sufficient interest in the subject or result of inquest could personally attend with council and examine and cross-examine witnesses. Parents obtained prohibition and mandamus against the Coroner in the Supreme Court.  On appeal, the Full Court discharged the order.  Parents appealed.
ISSUE: Did the Coroner misconceive or exceed his jurisdiction in refusing to hear submissions from counsel representing the parents of the deceased?

PRINCIPLE: CANNOT make adverse findings without notifying the affected parties and allowing them to be heard.

Held: MASON CJ AND DEANE AND McHUGH JJ:
-   The rules of natural justice are applicable to the present inquest. That being so, the Coroner cannot lawfully make any finding adverse to the interests of the appellants without first giving them opportunity to make submissions against the making of such a finding.

Reasoning:
-   Critical question in the present case is not whether the rules of natural justice require an extension of the rights expressly conferred upon the appellants by s24 of the Act. It is whether the terms of the Coroners Act 1920 display a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests.
-   Full Court judgments assume that appellants had no right to be heard because nothing in the evidence suggested that anything adverse to them personally could emerge from the Coroner’s finding or rider.  But this overlooks two matters:
(i)    Appellants have been granted, and properly granted, representation to the coronial inquiry.  The grant did more than recognise appellants’ personal interest, it also created a legitimate expectation that the Coroner would not make any finding adverse to the interest they represent without giving them the opportunity to be heard in opposition to that finding.
-   Interest which they represent includes the reputation of their deceased son.  So, parents have the common law right to be heard in opposition to any potential adverse finding in relation to themselves and the deceased unless by express terms or necessary implication, the Act has excluded the common law right to be heard.

Ainsworth v Criminal Justice Commission (1992) 66 ALJR 271 

Facts: Pursuant to general provisions of Criminal Justice Act 1989 (Qld), the Criminal Justice Commission made a report to the Deputy Premier about areas of difficulty in implementation of a cabinet decision to introduce poker machines. The report contained adverse findings about alleged conduct of the Ainsworth group of companies which supplied poker machines and recommended that the Ainsworth group not be permitted to participate in the gaming machine industry in Queensland. Findings were based upon reports made by other public authorities. No notice was given to the Ainsworth group that adverse findings against it were proposed, nor any opportunity for a hearing offered.  The Act required the CJC at all times to ‘act independently, impartially, fairly, and in the public interest.’  The Act also provided that this provision applied to ‘all proceedings’, conduct in discharge of any of the functions and responsibilities of the CJC or its organisational units.  The Full Court held that no denial of procedural fairness had occurred and the case was not appropriate for relief sought.

PRINCIPLE: The rules of natural justice can only be excluded from a statute by plain words of necessary intendment. The duty to accord procedural fairness depends on the nature of the power.

Held: MASON CJ AND DAWSON, TOOHEY AND GAUDRON JJ:
-   The words of the Act do not prevent the implication of a supplementary duty of fairness, they are ineffective to exclude any duty of fairness arising under the general law.  In particular, they are incapable of excluding the rules of natural justice for they can only be excluded by plain words of necessary intendment: Annetts v McCann.
-   The process which led to the report may be described as one of inquiry and investigation. 
-   Obviously, not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness.
-   On the other hand, it does not follow that there was no duty of that kind simply because the Commission was engaged in an exercise of that kind.
-   Procedural fairness used to be denied if the proceedings were not in the nature of judicial proceedings BUT it is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may destroy, defeat or prejudice a person’s rights, interests or legitimate expectations.’ Annetts v McCann.  Thus what is decisive is the nature of the power, not the character of the proceeding which attends its exercise.
-   The only question which now arises is whether the report adversely affected a legal right or interest, including an interest falling within the category of legitimate expectation, such that the Commission was required to proceed in a manner that was fair to the appellants. 
-   Reputation is an interest attracting the protection of the rules of natural justice. This includes business or commercial reputation.
-   Here, the Commission’s report published in the manner required by s2.18 of the Act could only ensure that, thereafter, the appellants’ reputation in Qld would be of the worst kind.
-   Does not need to be an express finding, adverse recommendation entitles appellants to procedural fairness.
-   Where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety entails procedural fairness: South Australia v O’Shea.
-   BUT: In this case there is not one decision-making process – the Commission discharged its functions, then the Parliamentary Committee was to do its functions. It was not the function, nor the obligation of the Parliamentary Committee to redress the unfairness involved.
Relief:
-   No mandamus was granted because the argument for mandamus was based on the view that the Commission is under a duty to investigate and report with respect to the appellants in relation to the introduction of poker machines into Qld but this view is misconceived.  The fact that the Commission was one of opinion to investigate and report with respect to appellants does not indicate that it is still of that opinion. 
-   The function of certiorari is to quash the legal effect or legal consequences of the decision or order it under review.  The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect.  It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities.  But the Commission’s report is not in this category, thus, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants.
 
SO, the Court here made a declaration indicating that the appellants were denied natural justice. 

Continued on page 6
Continued
3.2 Where Statues Provide a Hearing Code of Procedure or Right of Appeal

-   The common law implied duty to act fairly can be excluded or displaced where the legislature excludes or displaces the hearing rule by making provision for the exercise of a power without a hearing being afforded the affected party: Twist v Randwick Municipal Council. (p.36 Crib)
-   If however the legislature intends to dispense with the requirements of procedural fairness in a particular enactment that intention must be unambiguously clear: Twist per Barwick CJ.
-   Such a legislative intention is not to be assumed nor is it spelled out from indirect references, uncertain inferences or equivocal considerations, but must satisfactorily appear from express words of plain intendment: Commissioner of Police v Tanos.
-   An intention to exclude or displace the hearing rule is not to be inferred from the presence in the statute of rights commensurate with some of the rules of procedural fairness: Annetts v McCann
-   The mere fact that a statute lays down steps for procedural fairness does not displace the Court’s right to add to it if it sees necessary:
-   Right to appeal generally remedies a defect where the primary decision-maker neglects procedural fairness BUT the mere existence of a right of appeal may not in some circumstances satisfy the requirements of natural justice: Twist. The position now appears to have been reached where the existence of a statutory right of review or appeal may affect the nature of the procedures which ought to be adopted in complying with the hearing rule; but ordinarily will not exclude those procedures: Marine Hull & Liability Insurance Co v Hurford and Another (1985)
Twist v Randwick Municipal Council (1976)

Facts: The local council was given power to order a person to demolish buildings in a dilapidated state. They ordered Twist to demolish building. Twist refused and he asked for extension of time but was still refused. Council gave him notice that they would demolish the building, but there was no hearing given.

-   If legislature provides for hearing, court must not supplement even if the provision is not what the court thinks appropriate
-   This is especially strong where it is a multi-staged process: O’Shea
-   Where statute provides for appeal, this is exclusive remedy.
-   NB: In this case, the appeal was a full and comprehensive hearing de novo on the facts and the law.  The existence of appeal to ‘review’ tribunal with no power to reverse/modify the original decision, only make recommendations to original decision-maker, was not sufficient to exclude procedural fairness. Appeal on a question of law alone does not exclude procedural fairness.  Also need to take into account the nature of the appeal body, for example, if it is judicial then it is likely to exclude procedural fairness if it is de novo.
State of South Australia v O’Shea (1987) 163 CLR 378 

Held: MASON CJ:
-   Section 77a of the Criminal Law Consolidation Act 1935 (SA) allowed a place for the presentation of the offender’s case before the Board when it was considering whether it should make a recommendation for release.
-   Many cases of this legislative model which entail the holding of the inquiry by a body authorised to make a recommendation without conducting any further inquiry: eg Kiao v West
-   The hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness. 

WILSON AND TOOHEY JJ:
-   The Correctional Services Act expressly secures procedural fairness to Mr O’Shea in the course of the Board’s consideration of his case.  But beyond that he is in the hands of the Government, which must accept political responsibility for his release. 
-   Given the nature of this decision, it cannot be said that Mr O’Shea could have more than a hope that the Governor would be prepared to act on the recommendation of the Board. Hope, of itself, is not sufficient to ground an expectation that will attract legal consequences ….nature of decision was such that participation by Mr O’Shea was inappropriate.
-   In truth, Mr O’Shea will have had full and final opportunity to adduce material and make submissions on the question of his release on licence in the course of the hearing before the Board.  The procedures simply do not permit a further opportunity at a later stage. 
NB: If the Minister had received additional material personal to Mr O’Shea which turned the scales against him, the Minister would be obliged to send the matter back to the Board so that the additional material could receive its consideration.  In the end the decision of the Governor and his advisers will turn on whether, in light of the Board’s report, it is seen to be in the public interest to act on recommendation of the Board.
Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 75 ALJR 889

-   An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. (Annetts v McCann) Nor is such intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice.
-   This means that even when the Minister provides an interpretation of the statute, courts still look at the text itself. (Lyster)

4. QUALIFICATIONS TO THE IMPLICATION PRINCIPLE

-   Dangerous to say that hearing rule does not apply but in any event, if there may be such a case, it may be preferable to speak in terms of the hearing rule having little or no ‘work’ to do or content of the rule being reduced to ‘nothingness’.
Courts may say that hearing rule has no application to the facts of a particular case
For example where:
i) The decision is seen by the reviewing court as being, in effect purely administrative.  Although even then there is usually some ‘policy’ or other critical factor involved.
ii) The decision occurs in the context of a straight forward master-servant relationship: Ridge v Baldwin

iii) The decision affects so many people that it is tantamount to a legislative act.
iv) The decision occurs in the context of the ‘application cases’ that is where a person makes appointment for licence/approval. Although pure applicant is still entitled to be treated ‘fairly’ – proper consideration and no bias, even though there may be no formal right to be heard as such: Perron v Central Land Council

v) The decision involves national security considerations: GCHQ.

vi) Urgency may also diminish the content of the hearing rule BUT will not necessarily exclude the rule altogether: Heatley v Tasmanian Racing and Gaming Commission; Marine Hull & Liability Co v Hurford

vii) Nature of the power being exercised may in some cases (eg a power to suspend a person from duty pending inquiries) be such that the power be exercise peremptorily without a hearing first being afforded the affected person: Dixon v Cth. Such action should, however, be followed only in exceptional or special cases of exigency and the action taken should be of short duration: Heatley

4.1 Policy
GCHQ [1985] AC 374 
-   Procedural fairness gives way to national security
Coutts v Commonwealth (1984) 157 CLR 91 

Facts: Pilot in the Air Force deprived of his licence and discharged from the force due to medical fitness. Is a person discharged on this ground entitled to a hearing?

Held:
-   The Governor’s decision to fire an officer in the air force is unreviewable because of the policy with respect to armed service – “hold office at the pleasure of the crown.” That is, an officer accepts an appointment at the pleasure of the Crown and the appointment is able to be terminated at any time for good, bad or no reason. There is no procedural fairness in these situations.
-   Court distinguishes ordinary civil service from those in the armed forces who do not get procedural fairness. The Court does not want to get involved in decisions by the Executive as to who can serve.

4.2 Power of Legislative Nature

Bread Manufacturers of New South Wales v Evans (1981) 38 ALR 93

Held:
-   Decisions of delegated legislation do not require procedure fairness.
Kioa v West (1985) 159 CLR 550  

Held: MASON CJ:
-   Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.

BRENNAN J:
-   An implication that a statutory power is conditioned on observance of the principles of natural justice does not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case.
-   Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected: Heatley.
-   In such cases, a peremptory exercise of the power is valid, though the power is conditioned on the observance of the principles of natural justice.
-   It would be wrong to attribute to a legislature an intention that where a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice.  Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred.  
-   The need for peremptory exercise of that power on occasions is no more than a factor to be borne in mind in determining whether the legislature intends to exclude entirely the application of the principles of natural justice. 
-   To determine whether the legislature’s intention is to condition the exercise of a statutory power upon observance of the principles of natural justice – the threshold question – one must have regard to the text of a statue creating the power, the subject-matter of the statute, the interests which exercise of the power is apt to affect and the administrative framework created by the statute within which the power is to be exercised: FAI v Winneke

4.3 Urgency

-   Courts require evidence of circumstances of urgency to conclude that procedural fairness is excluded. It may require hearing after the decision is taken.
 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487  

Facts: Heatley served with an indefinite warning off notice.

Held:
-   He should have been given the right to be heard.
o    For emergency situations, ex parte injunctions are available.
o    However, when a notice for an indefinite period is issued, the person must first be afforded the opportunity to be heard.
Marine Hull & Liability Co Ltd v Hurford (1985) 62 ALR 253, aff’d (1985) 67 ALR 77  

Held:
-   Where the circumstances are such that the peremptory exercise of power is required so as the power is not frustrated; this is allowed.