LAWS2201 Lecture Notes - Lecture 8: Robert Megarry, Kioa, Jurisdictional Error
Procedural Fairness
These are breaches of legal standards that result in jurisdictional error
1. Procedural fairness
a. A breach of procedural fairness amounts to a jurisdictional error: Aala
b. Two parts: The Hearing Rule and the Rule Against Bias
c. Both appear in ADJR S 5(1)(a)
d. Procedural fairness is presumed in exercising a statutory power unless it is clearly
displaced by the legislation- SZSSJ at [75] by the HCA
Hearing Rule
The hearing rule is developed to require that a hearing be given before deciding, affecting a person’s
rights and interests.
Annetts v McCann: it is settled if a statue confers power to destroy or prejudice a person's rights or
interests, principles of natural justice regulate the exercise of that power ….. And can only be
excluded by plain words of necessary intendment at 598.
• personal reputation is an interest which should not be damaged by an official finding
after statutory inquiry unless the person has had a full and fair opportunity to show
why the finding should not made
Commissioner of Police v Tanos: an intention to exclude cannot be assumed from indirect inferences,
uncertain inferences or equivocal considerations
Why do we have this rule?
• Increases the chance that decision-makers will receive all the relevant information by
enabling affected persons to hear
John v Ree [1970] Ch 345 at 402 Megarry J
Megarry J’s statement at 402 in Ree basically comes down to the notion that it is human nature, that if
a decision has been made against them, they are more likely to accept it if they had been afforded the
opportunity to respond and influence the decision
It enhances human dignity and self-respect
When is a hearing required ?
• Mason J in Kioa: an administrative decision which affects an individual's rights and interests
will attract a common law duty to accord procedural fairness
• Two obvious limitations:
1. As a common law duty, it is subject to the clear manifestation of a contrary statutory
intention – Kioa per Brennan J
i. Annett v McCann: plain words of necessary intendment are required to exclude
procedural fairness obligations
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ii. Plaintiff S157: courts will not impute to the legislature an intention to abrogate or
curtail fundamental rights or freedoms unless such intention is clearly manifested
by unmistakable and unambiguous language.
2. The duty arises only if the individual's rights, interests are affected in a direct and
immediate way
i. Brennan J in Kioa: if relevant considerations relate to the individual
ii. Mason J; the imposition of a rate or a general charge for service is a general policy
decision, and not feasible for all people to be heard
• Oral hearings only required where credit is at stake
o Cains v Jenkins : no absolute right to legal representation
• The hearing need not be in person in all circumstances, need not be conducted by the
decision-maker
• Sometimes a failure to respond to a substantial argument may amount to a breach of the
hearing rule of procedural fairness- Dranichnikov, SZJSS
1. Is there an implied duty to show procedural fairness?- Kioa
2. Has the legislature clearly excluded this duty with unmistakable and unambiguous
language- Saeed
3. What is the content of the duty? In most circumstances:
• adequate notice that an adverse decision may be made
• disclosure of prejudicial allegations and sufficient details to enable a meaningful
hearing on the critical issues arising for decisions
• The opportunity to make relevant submissions
• Adduce relevant evidence
• Allowance of sufficient time to prepare for the hearing.
• The content of the obligation is determined in light of the circumstances –
Brennan J in Kioa
Cases
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636
• These were four cases heard together in which the plaintiffs attempted to use M61 as authority
for the proposition that the Minister was obliged to consider using a personal statutory
discretion.
• Unsuccessful b/c each had their case attended by the Minister and had at least one merits
review
• The guidelines used by the subordinates, to indicate which cases he wanted brought to this
attention with regard to the exercise of his personal discretionary powers under the statue was
considered entirely proper
• No natural justice was owed since the Act excluded it by necessary intendment
Main cases
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find more resources at oneclass.com
Document Summary
The hearing rule is developed to require that a hearing be given before deciding, affecting a person"s rights and interests. Commissioner of police v tanos: an intention to exclude cannot be assumed from indirect inferences, uncertain inferences or equivocal considerations. Increases the chance that decision-makers will receive all the relevant information by enabling affected persons to hear. John v ree [1970] ch 345 at 402 megarry j. Jason kioa and his wife were tongan citizens who were each granted a temporary entry permit (tep) to enter australia. After the expiry of his permit, mr. kioa applied for an extension on the pretext of taking a holiday in australia: before the application was considered fully, he changed his address and took employment in. Reasons for rejecting: the delegate made the decision and reasoned that, kioa"s claim that he stayed in australia was due to the cyclone but the cyclone occurred 3-month prior his tep expired.
