3017LAW Lecture Notes - Lecture 3: City Of Randwick, Metropolitan Borough Of Poplar, Anthony Lagoon
(1) GROUNDS OF REVIEW
Ground of review Legislation and explanation
Procedural Fairness
&
Implication
Principle
In Kioa v West (1985) 159 CLR 550, Mason J held (at 584):
•Deportation of man. Wanted to come to aust on student visa then wanted to stay
with different visas. Expired and in aust illegally. Minister made decision to deport
them
•In making decision, decision maker relied on opinions of others
•Acting in way contrary to australias interest – but not
•Changed his address to avoid – told dept
•Undisclosed allegations were what decision was based on so wrong - didn’t give
him chance to respond to the allegations
•What is fair
•If told him of allegations and gave him option to respond then different
•(T)he law attaches [importance] to the need to bring to a person’s attention the
critical issue or factor on which the administrative decision is likely to turn so
that (s/)he may have an opportunity of dealing with it.
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616:
•HC majority (Gummow, Hayne, Crennan and Bell JJ) rejected the use of the phrase
‘legitimate expectation’ in a public law context.
•‘It either adds nothing or poses more questions than it answers and thus is an
unfortunate expression which should be disregarded.’ [at 65]
•Legitimate expectations is now understood as part of a broad approach to
‘interests’.
The ‘implication principle’
•Procedural fairness may either be:
expressly required by a statute, or
implied by the common law.
•Where the statute is more generous than the common law, the court will enforce
the express requirements of the statute. statute normally silent.
•More usually, the statute is less generous than the common law and the courts
will supplement the statute to ensure procedures are fair.
This is known as the implication principle.
Implicated if rights and interests affected
•The implication principle says that procedural fairness is required in respect of any
decision that might affect a person’s rights and interests: see Kioa v West (1985)
159 CLR 550
•In Kioa v West, the High Court held that the implication principle applies to
decisions being reviewed under the ADJRA as well as at common law.
•See ADJRA ss5(1)(a), 6(1)(a); JRA ss20(2)(a), 21(2)(a)
There are three common situations where procedural fairness calls for a hearing:
1. Direct detriment to an existing benefit (eg licence to do something then
cancelled)
•Right to do something under legislation
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Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
•Gambling. Heatley was pro gambler and horse racing administrators,
under act they decided to excluded heatley from race track. Right to go
races taken away. Didn’t give reasons.
•Procedural fairness required in making ‘warning-off decision’ as it
interfered with both a public right and Heatley’s livelihood.
Annetts v McCann (1990) 170 CLR 596
•Investigation of coroner, death of 2 jackaroos, evidence was suggesting
homosexual issue and the parents were worried that this would be
made public. Judicial review for coroners report. Right of protection of
reputation. Coroner should have gone to parties before making
submission
•Parents were entitled to procedural fairness to protect the reputations
of their deceased children.
2. Adverse allegations and objections
•When a person does not currently hold a benefit and they are not currently
entitled to it, a decision refusing the benefit may have an affect on their
interests.
•But procedural fairness is satisfied if the decision-maker decides on the basis
of material contained in the application:
ie the application is the hearing.
Then you've been heard
•However, an application cannot be refused on the basis of undisclosed
allegations or objections.
3. Interest in receiving a benefit or being heard (eg representation)
•Behaviour of decision maker
A-G (NSW) v Quin (1990) 170 CLR 1 at 20
•Mason CJ summarised the factors and circumstances which are
relevant to assessing if such an expectation arises. These may include:
a) The giving of assurances – Haoucher v MIEA (1990) 169 CLR 648
(cf Shire of Beechworth v A-G (Vic) [1991] 1 VR 325)
Told to make application and decision maker says oh
yeah you will definitely get it – affidavit use of evidence
Once became aware that you would not get it then you
have to be notified to then give you chance to respond
b) The existence of a regular practice - Heatley v Tasmanian
Racing and Gaming Commission (1977) 137 CLR 487
Suddenly changed practice (eg expected always could
enter race course but suddenly changed)
c) The consequences of denying a benefit - FAI Insurances v
Winneke (1982) 151 CLR 342
Health insurance, needed licence by 12 months then
renewed by minister. Consequence of no longer being
licenced would cause detriment
d) The satisfaction of statutory criteria - Re HK (an Infant) [1967] 2
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QB 617
Expectation of benefit if clearly satisfy criteria
If fit category then you get it but didn’t, govt should
have stopped and told
Merman Pty Ltd v Minister for Mines and Energy [1987] WAR 159
•Merman applied for a mining lease.
•The Minister requested it to prepare an EIS. (assurance)
•The Minister refused the application while Merman was in the course
of preparing the EIS.
•The WA Supreme Court held the Minister had impliedly promised
Merman a decision would not be made pending consideration of the
EIS.
•They had been denied procedural fairness
Qualifications on the ‘implication principle’
There are a number of qualifications on the implication of PF in a decision-making
process:
1. Legislative actions: the rule
[N]o requirement of a prior hearing will be attached by the courts to an action
which is substantially legislative… and which is based upon policy
considerations as to what the public good requires in the relevant
circumstances, rather than upon considerations personal to any particular
individual. [ Craven G (1988) ‘Legislative action by subordinate authorities
and the requirements of a fair hearing’, MULR 16: 569 at 577-8]
• Bread Manufacturers of NSW v Evans (1981) 56 ALJR 89
Changing prices to bread, standing, decision for price of bread
throughout NSW
PF not required in the making of ‘prices regulation orders’ as
the exercise of this power was essentially legislative in nature.
BUT: The application of PF is not determined by merely affixing
a label to describe the character of the task (per Mason and
Wilson JJ at 101)
Factors which will influence the court on this issue include:
i) The size of the class affected: the smaller the class, the more
likely it is that the exercise of the power will be held to be in substance
administrative.
ii) The practicability with which the affected persons can be heard.
In particular, if the affected class is represented by an organisation, the
organisation is more likely to be able to claim a right to be heard.
2. Statutory exclusion of procedural fairness
A statute may:
a) Restrict the common law requirements by providing for a notice and
hearing, but in terms less than the common law would require.
Here the common law will supplement the statute, unless there
is a clear statutory intent that the statutory requirements are
the only requirements (but courts often find that this is the
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Document Summary
In kioa v west (1985) 159 clr 550, mason j held (at 584): deportation of man. Wanted to come to aust on student visa then wanted to stay with different visas. In making decision, decision maker relied on opinions of others: acting in way contrary to australias interest but not. Changed his address to avoid told dept: undisclosed allegations were what decision was based on so wrong - didn"t give him chance to respond to the allegations, what is fair. Plaintiff s10/2011 v minister for immigration and citizenship (2012) 290 alr 616: hc majority (gummow, hayne, crennan and bell jj) rejected the use of the phrase. It either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded. " [at 65] Legitimate expectations is now understood as part of a broad approach to. This is known as the implication principle.
