5. CONTENT OF THE HEARING RULE

The content of the rules requiring a fair and unbiased hearing are immensely flexible and provide no sure guide to action
They do not require ‘court-like’ proceedings
Fair hearings may be conducted on the papers, the person who decides does not always have to conduct the hearing, rules of evidence do not apply to administrative decision-makers, and refusal of cross-examination or legal representation is not as a general rule a denial of procedural fairness.  It depends on what fairness requires in the particular circumstances.  

5.1 Must the Person Who Decides Hear?

White v Ryde Municipal Council [1977] 2 NSWLR 909

FACTS: The Council had for a long time received complaints about White’s smelly cats.  The Local Government Act Section 289(e) empowered the council to ‘control and regulate the keeping of animals, in particular dogs, cats, pigs, pigeons and poultry.’ The Council’s health surveyor reported that White kept 20-30 cats, and on that basis, the Council’s General Purposes Building and Development Committee recommended the Council prohibit White keeping more than two cats at a time.  
Council adopted the recommendation and informed White that he could be fined for not complying and offered him an opportunity, within four days, to make oral or written representations as to why the resolution should not be given effect. The Committee refused White’s request for his legal representative to be present, so White addressed the Committee himself. The surveyor who made the inspection was at the hearing, but did not participate in deliberations. The Committee recommended the Council affirm its earlier resolution and they did so. A year later, White was convicted of non-compliance with the order and fined.  He appealed.

PRINCIPLE: Municipal councils do not have to personally hear every case if there is a special committee in place to assist them and make recommendations.  The decision maker must, however, have before him all of the relevant materials (evidence and submissions of those entitled to be heard).

HELD: REYNOLDS JA:
-   Procedural Fairness was implied.
-   “what will be sufficient to satisfy the requirement depends on the circs of the particular case, a well as upon the nature of the statutory power… the requirement of natural justice has a fluctuating content”
-   The general proposition is "he who decides must hear." - but in some situations decision maker sets up a specialist board to decide, this is ok so long as the board has all the evidence and representations before them.
-   The general proposition is not a universal requirement, it is to be understood in the sense that the decision maker must have before him the evidence and submissions of those entitled to be heard.
-   The decision making body need not hear and see the actual submissions in the hearing.
-   It is commonplace for councils’ to act on the recommendation of a specialist committee.
-   In this case normal procedure should not be abandoned and, in any case, it was probable the White would be more benefited from the committee conducting the hearing than the council. (at 923)
-   Question of legal representation; a simple factual matter meant there was no right to legal representation.
-   The decision-making authority (council) was appraised of all the relevant material to evaluate the recommendation and the force of the representations made by White.
-   Held the hearing was proper as it accorded with all notions of fairness.

FAI Insurances Ltd v Wineke (1982) 151 LR 342

FACTS: The Workers Compensation Act 1958 (Cic) Section 72(1)(a) provided for approval by the Governor in Council (GiC) of insurers for workers compensation liability, with GiC meaning the Governor with the advice of the Executive Council.  
The Workers Compensation Regulations 1975(Vic) Regulation 201 prohibited a company from carrying on any insurance business against workers compensation liability without having obtained approval of the GiC.  
Regulation 202(1) provided for approvals to be given on an annual basis. Regulation 202(2) provided that when granting any 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 regulation by the applicant.’  
FAI had done workers compensation in Victoria for twenty years. It applied for a renewal, and admitted when disclosing their financial positions, that they had failed to meet two criteria prescribed in the Minister’s statement. BUT, they submitted that they were illegal as it went beyond the provisions of Regulation 202(2). FAI requested that if they were not going to be renewed, that notice and an opportunity to make submissions and provide evidence be given on the issue. FAI was refused renewal on account of several financial concerns, and they were not given a hearing.  FAI appealed.

Principle: Hearing rule; a statutory authority that has the power to affect a person’s rights is bound to hear him before exercising that power. This is especially pertinent where it is the renewal (vs. application) of a licence and where the loss of it affects earning capacity. The hearing function can be delegated to someone who does not make the final decision.

HELD:
-   The fundamental rule, the hearing rule, is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power. (Mason J)
-   The exercise of revoking a licence will attract the rules of natural justice, more so than an application for a licence at first instance. This is especially where the loss of the licence means a loss of a right to earn a livelihood or to carry on a financial rewarding activity.
-   The Governor in Council is still bound by the rules of natural justice even though it would be unlikely he would hold the hearing himself, his duty would extend to allowing the applicant adequate opportunity to present its case.
-   This opportunity can be given through delegation to a committee or the responsible Minister, who can consider submissions and report back.
-   It matters not that the person or persons to whom this function is delegated do not make the ultimate decision. (at 370-371)
-   The statute looks only to the Governor in Council to ensure that the application is dealt with fairly and justly. FAI won the appeal as it should have been given a chance to answer the matters raised by the
Minister in his report.
-   NB not same as a multi stage decision making process like O’Shea because the parole board had statutory functions to perform; to interview O’Shea as well as accept medical reports. O’Shea was a different situation; clearly multi stage decision making.
-   Here no formal statutory responsibility but decision maker sets up a committee. This is fine as long as the committee has all evidence before it.

5.2 Notice

-   Prior notice that a decision adversely affecting interest is to be made is the minimum content of procedural fairness.
-   Notice is required to understand the nature and ambit of the allegation so as to prepare a response.

Bond v Australian Broadcasting Tribunal (No 2( (1988) 84 ALR

Facts: The ABT commenced inquires under statute into the commercial broadcasting licences held by a number of companies owned by Bond. It was an investigatory proceeding, that is, not bound by the rules of evidence. The companies requested particulars of the issues of the inquiry and they received a list of issues relating to the fitness of these companies to hold such licences. The Tribunal refused a further request that more particulars be given and that they could order witness and lead the evidence in chief. Bond and companies sought review under the ADJR Act, they eventually appealed to the High Court.

Principle: A party in an inquisitorial proceeding has a right to be informed of the nature of the inquiry and the issues being investigated, and if allegations have been made- the nature of those allegations- so as to not be ‘left in the dark’. Witnesses of the inquiry belong to the inquiry, and the applicant has no right to determine their ordering etc unless they are part of a case specifically put by them to the tribunal.

Held: WILCOX J:
-   The tribunal is bound by the rules of natural justice as its findings may adversely affect parties. (Kioa v West)
-   The inquiry is inquisitorial – it is an investigation by the tribunal into desirability of taking certain action. The court can only intervene where the tribunal has fallen or is likely to fall into legal error.
-   Bond argued that the inquiry turns adversarial once witnesses are brought, but the court rejected the idea of treating the proceedings like litigation. Firstly, the witnesses are not the parties’ witnesses, they are for the inquiry and the tribunal is bound to follow the evidence wherever it leads.
-   ‘Further and better particulars’ is an appropriate request for a criminal or civil trial, but not to committal proceedings or inquiries where the evidence is followed to wherever it leads and where before the inquiry it would be wrong for the decision makers to express tentative views about what they think the outcome of proceedings may be.
-   The duty of the tribunal is to ensure that the applicants are made aware of the material placed before the tribunal and which is relevant to the exercise of any power in a manner adverse to their interests.
-   If there are specific allegations being made then fairness would require the release of particulars of those allegations. If on the other hand it is a general inquiry, particulars would be impractical and ineffective.
-   Question: Does the failure to supply particulars result in the applicants being “left in the dark” about the type of findings and orders that may be made against them?
-   “A person potentially affected by the outcome of an inquiry is entitled to understand the nature of the inquiry and the issues being investigated; otherwise meaningful participation becomes impossible”. This understanding will be just the subject matter of the inquiry, framed in terms of issues and relevant powers, with no view as to the relevant facts or likely outcome. As the inquiry unfolds, it may be necessary to make further disclosures.
-   Other disclosures would be okay if the decision maker needs more information from the parties.
-   Whether left in the dark depends on the circumstances of the inquiry as a whole. Generally must know the nature of the inquiry or the risk faced.
-   No denial of procedural fairness in refusing to supply further and better particulars

The ‘Bond camp’ witnesses
-   Witnesses belong to the inquiry, not the parties. The decision maker decides the order and time of them being heard.
-   If Bond decides to put a positive case to the inquiry or bring new evidence then he is entitled to.
-   Bond may call additional witnesses’ oral evidence. In doing this (presenting their own case), they are entitled to decide which witnesses to call and their order and will be entitled to take those witnesses as their evidence in chief.

Re Macquarie University; ex p Ong (1989) 17 NSWLR 113

Facts: A head of school whose conduct was the subject of investigation by a committee of the University Council was entitled to notice of a new set of allegations regarding his competence, notwithstanding the fact that he had declined to attend the committee's hearings in relation to the first set of allegations concerning his failure to cooperate with the Vice-Chancellor.

Principle: For procedural fairness there must be notice, identification of the issues, and person must have adequate time to prepare. A body is obliged to give to a person who might be adversely affected notice of a new set of allegations made against him even though he sought not to be heard on an earlier and different set of allegations.

Held:
-   Content of the notice depends on the nature of the inquiry. For example where there is a general inquiry as opposed to specific allegations.
-   Dr Ong did not know that the new allegations would be the subject of the committee’s report.
-   A denial of procedural fairness occurs even though the person affected had notice of the facts on Committee’s recommendation would have critical if not decisive influence on the council.
-   Entitled to have access to material and hearing
-   Distinguishable from O’Shea (political).
-   Original allegations that he failed to work properly with the Vice-Chancellor; but was not told that he was also being investigated on the basis of incompetence. Needed notice of these allegations to prepare.
-   NOTICE that there will be a committee to consider the issues - also adequate time to prepare is important.
-   A body is obliged to give to a person who might be adversely affected notice of a new set of allegations made against him even though he sought not to be heard on an earlier and different set of allegations. The person must also be given adequate time to prepare with respect to these allegations.
-   Cross reference; Vice Chancellor’s letter: by the writing of a letter and handing it to the committee on the day of sitting amounted to the accuser being present during the proceedings. This is a breach of procedural fairness.

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