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.