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Lecture 5

Week 5 & 6 - Ground - Natural Justice

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Law
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JSB171
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GROUND OF JR – Natural Justice / Procedural Fairness State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] • Considering each… NATURAL JUSTICE / PROCEDURAL FAIRNESS: The [s5(1)(a) AD(JR) Act (Cth) / s20(2)(a) JR Act (Qld)] mirrors the CL rules regarding NJ. In order to determine whether NJ has been breached: Kioa v West (Brennan J) 1. Will the rules of NJ apply? (Threshold Test) 2. What will the rules of NJ require in the circumstances (Content – hearing/bias) N.B. What is NJ? 1. Free-standing CL rule which puts a duty on decision-maker to act fairly: Kioa v West (Mason J); Impliedly Miah (Gaudron & McHugh JJ); or 2. Implied statutory constraint on the exercise of administrative and judicial power: Kioa v West (Brennan J) BUT – Doesn’t matter which is correct; the rules of threshold and content remain the same: Miah (Gaudron). 1. THRESHOLD QUESTION - DOES NJ APPLY HERE? - First check if the provisions creating the decision-making body include requirements of NJ - 1.1. Statutory Exclusion? In Kioa v West the HC has taken the approach that the CL prescribes NJ as either a duty or implies the rules. NJ rules can be excluded by statute; but question is whether the legislation on its proper construction, relevantly and validly limits or extinguishes the obligation to accord PF”: Miah (Gaudron J). However provisions will be construed narrowly and will only operate where there is a clear parliamentary intention to exclude: Kioa v West. Here, __________. IF nothing to exclude: Here there is no express exclusion in the act; in Miah McHugh J noted that in the absence of express words it is highly improbable that the legislature intended to exclude NJ. Therefore NJ will not be excluded. IF some listed and called CODE: Similarly to in Miah, the heading to the part states “code…”, there it was held that the term “code” was not conclusive but shouldn’t be disregarded. There the court looked at the specific provisions, and found it was not a code for NJ, but a code for dealing with visa applications. Here, ________. IF exercise of GOVT power: Procedural fairness requirements are usually implied into all exercises of government power: Haoucher v MIE IF only some rights LISTED: Where certain rights are listed – court will supplement them with appropriate NJ obligations unless specifically included: Kioa v West (Move away from previous hesitation to supplement statute). nd IF 2 Reading SPEECH or Explanatory MEMO state NJ not applicable: Here similarly to in Miah, it may be argued that because of the comments in the [memo/speech] NJ there is an intention to exclude NJ. This was rejected in Miah because the court would give affect to the legislation not the speech, particularly where there were serious consequences for the individual. IF GROUNDS FOR REVIEW are explained: Here, similarly to in Epeabaka, it may be argued that because of the detail in the provisions; there was no need to comply with other NJ procedures (in Epeabaka – bias). The court rejected this because such an interpretation would be far reaching and that because other provisions acknowledge other types of bias as a ground for review. IF “if the Minister complies with these provisions he is not required to take any further action”: The provision here is identical/similar to that examined in Miah. There the court held 3:2 that the section did not exclude the application of NJ. The court came to this decision by examining the words, structure and context of the legislation. Here, _______. (apply factors above) Therefore the statutory attempts to exclude NJ [will/will not] operate. EXAMPLE Kioa v West 2 Tongan parents, with their Australian daughter, sought statutory judicial review against a decision to deport them. Father entered on a student visa, the wife on temporary entry. Their daughter was born in Australia. They stayed past the expiry of their visa in order to earn money for their relatives, who suffered from a cyclone. HELD: Deportation orders be set aside, so the Kioa’s have a chance to present their case. No requirement that natural justice be observed in all decisions.However, the Tongans should have been heard, in accordance with requirements that a person be heard before they have a decision made that will adversely affect them. (The UN Declaration of the Rights of the Child, nothing in it suggested that the child was entitled to having the care of both parents.) Mason: What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting. Procedural fairness here conveys an obligation to adopt fair procedures, which are adapted to the circumstances of the case. Whether there is no obligation will largely depend on a construction of the statute. On applying it to the facts, the Migration Act obviously contemplates the making of an order ex parte, so the natural justice requirement that someone be notified beforehand would frustrate the intention of the Act. Where, however, an order is made to refuse to grant him, that person should be able to answer the charges against them Brennan: The question is one of statutory construction (express limitations). On applying this to the facts, there would be no danger in allowing Mr Kioa to answer the claims against him, as he was not trying to evade immigration officials. EXAMPLE MI v Miah Father killed by fundamentalist government; Miah got death threats (very real); The government overseas couldn’t protect him cause it was helped by the fundamentalists themselves; By the time his case got to the Minister the govt had changed and thus they said that there was no risk; But didn’t tell Miah of this – thus no chance to respond. Migration Act contained what appeared to be self-contained “code” of NJ obligations in Subdivision AB of Part 3. HELD: 3:2 existence of code not sufficient to oust other NJ obligations. Gaudron, McHugh + Kirby JJ (majority): existence of the code was not sufficient to exclude all other obligations of NJ. WHY? Prevention of actual bias not included in code and obviously parliament would not intend actually biased decisions; Nothing in legislation said that the code was exhaustive. Gleeson CJ + Hayne J (minority): statute was comprehensive and parliament intended that nothing more than what was spelt out in the Act was required. EXAMPLE Re MIMA; Ex parte Epeabaka Public decision maker with a website that said, “Some people just trying to bend the rules”. Question of bias. HELD: Regardless of statutory description as “code”, bias held to be a NJ obligation under the Migration Act. EXAMPLE Haoucher v MIEA A person was under a deportation order under the Migration Act, as that person had been convicted of a criminal offence. There was a policy, expressed to the Parliament, relating to the appeals avenue to the AAT, but where the AAT would only alter the decision in very exceptional circumstances, where strong evidence was being led. HELD: Deportee should have known what the ‘exception circumstances’ and ‘strong evidence’ would be, in order to make his claims, but these were not forthcoming. This was therefore a breach of the requirements of procedural fairness. Deane J: Procedural fairness requirements will generally be implied into an exercise of government power. 1.2 Rights, interests or legitimate expectations THRESHOLD: The rules of NJ arise where a decision would affect a person’s rights, interests or legitimate expectation: Schmidt v Secretary of State for Home Affairs (Lord Denning); Kioa v West (Mason); Annetts; Ainsworth. A) RIGHTS: Initially this only dealt with the removal of pre-existing legal rights: Cooper v Wandsworth. However this was extended to Ridge v Baldwin by resurrecting the older jurisprudence extending the application to property rights, and rights involved with some membership and public office positions. This was further extending in Banks v Transport to include legal rights that a person had a legitimate expectation could be exercised by them. Here the right interfered with is, _________. N.B. In Kioa v West Mason J made it clear that right or interest related to:  personal liberty  status  preservation of livelihood and reputation  proprietary rights and interest. EXAMPLE Cooper v Wandsworth Property rights interfered with. EXAMPLE Ridge v Baldwin Exercise of statutory power to dismiss a police officer carried an obligation to afford him a hearing before termination. HELD: House of Lords discarded the former rigid application. Opened it to: Rights relating to Property, Membership of profession, vocational and similar non-statutory bodies; and public office positions which could only be terminated on specified grounds. EXAMPLE Banks v Transport Withholding of a cab licence (revocation); HELD: Licence is a privilege; took into account that it would affect livelihood etc. Rejected application that withholding the licence didn’t affect rights. – Overturning earlier idea that this sort of grant was merely a privilege and not a legal right. B) LEGITIMATE EXPECTATIONS (LE): The concept of legitimate expectation was introduced by Lord Denning in Schmidt; and adopted in Australia in Heatley; FAI v Winneke; Kioa v West. It is something less than a legal right. IF Legitimate Expectation based on: (Outlined below) • Government Assurance / Undertaking / Statement of Policy: Haoucher • Regular Practice: Heatley • International Treaty Obligations: Teoh; Lam; VEAL • Nature of Application / Consequences of Adverse Decision: FAI v Winneke (N.B. Licence in 1.3 below) • Satisfied Statutory Criteria: Murphy (N.B. Licence in 1.3 below) • Consideration of factors specific to the person/entity in question: Kioa v West; FAI v Winneke IF Assurance / Undertaking / Statement of Policy: Haoucher In Haoucher, it was held that tabling policy (in parliament) created a legitimate expectation that a Minister would follow the AAT’s decision. Here, ________. EXAMPLE Haoucher Visa refused by Minister because of criminal offences. AAT did not have power to overturn Minister’s decision, only had the power to return it to the Minister for reconsideration and give a recommendation. AAT sent decision back to Minister, suggested he make opposite finding. Policy of government (which was tabled in parliament) was that Minister should follow recommendations of the AAT unless exceptional circumstances & good reasons to the contrary & tabled those reasons in parliament. Minsiter failed to table in parliament. HELD: Tabling policy created a legitimate expectation that Minister would follow the AAT’s decision & therefore NJ obligations applied. IF Regular Practice: Heatley In Heatley, it was held that each member of public had a legitimate expectation that upon paying the fee to a public venue, they would be admitted, subject to observing the conditions of entry. Here, ______. EXAMPLE Heatley The Tasmanian Racing and Gaming Commission issued Heatley with a warning off notice. This is a notice that says that the person on the notice is not welcome on the racetracks. Effect of the notice was to prevent Heatley from entering racetracks while the notice was in effect; Heatley was not given any notice of intention to issue him with the notice. HELD: Each member of public had a legitimate expectation that upon paying the fee to a public race track, they can be admitted to the racecourse, subject to observing the conditions of entry. The statutory authority has the power to interfere with that legitimate expectation but must give the person to present their case (rule of natural justice). IF International Treaty Obligations: In Teoh, the court held that there was a legitimate expectation that the decision-maker would exercise deportation powers in accordance with UN treaty even though the treaty had not been formally incorporated into domestic law. However this was later rejected in Lam; because it was a subjective expectation and reliance that resulted in unfairness; in Lam the court required actual unfairness. Therefore here although [applicant] can expect an outcome or course of action; that gives rise to a LE, it will only give rise to a hearing not necessarily the fulfilment of that LE unless [applicant] can show actual unfairness/detriment and not merely procedural unfairness. Here, ______. However it is important to note that the High Court may be leaning towards a merely procedural unfairness requirement: Applicant VEAL; and therefore here, _______. EXAMPLE Teoh A person was subject to a deportation power for committing criminal offences; Decision maker did not take into consideration the needs of his children. HELD: Was a legitimate expectation that deportation power would be used in compliance with a United Nations Treaty on the Rights of the Child. While the treaty had not been formally incorporated into Australia, there was a legitimate expectation that its terms would be observed in areas of decision-making. EXAMPLE Lam Vietnamese citizen entered Australia and was granted a transitional (permanent) visa. He was convicted of a variety of criminal offences, and sentenced for 8 years. Immigration Department advised the Vietnamese person that they were considering cancelling his visa and having him deported; given chance to reply, and was advised as to what matter should be taken into account, including the welfare of his children. Dept said would contact the carer of the children, and ascertain their relationship to the applicant – but failed to do so. Lam argued LE that this would occur. Dept Cancelled visa. HELD: No denial of procedural unfairness; Criticised Teoh – signing treaty not always enough to create LE. Three Principles: 1. Legitimate expectation can’t give rise to an exercise of substantive rights (i.e. does not guarantee a particular outcome) 2. Legitimate expectation not so relevant to the threshold question of NJ, more relevant in the content stage as to what actual rights the legitimate expectation requires will be extended 3. Legitimate expectation will not necessarily result in breach of NJ unless can prove some actual (substantive) unfairness or detriment (i.e. not enough to prove procedural unfairness) Although N.B. Applicant VEAL HC held procedural unfairness was sufficient. IF Nature of Application / Consequences of Adverse Decision: FAI v Winneke In FAI v Winneke it was held that an insurance company had a legitimate expectation that a licence to operate a business with respect to worker’s compensation would be renewed unless there were adequate reasons to the contrary & those reasons were put to the company to address them. Here, ________. EXAMPLE FAI v Winneke Insurance company had a licence to operate an insurance business with respect to worker’s compensation. They were seeking a renewal of the licence. GG could choose to give licence or not. HELD: That the company had a legitimate expectation that the licence would be renewed unless there were adequate reasons to the contrary + those reasons were put to FAI so they could address them. Mason J: NJ not limited to rights - Where someone is being deprived of a right or interest in property, or legitimate expectation, they are entitled to know the case against them and be given an opportunity to be heard (ie entitled to have NJ extended to them) IF Satisfied Statutory Criteria: Murhpy In Murphy, the court held that a legitimate expectation existed because the applicant had satisfied the statutory criteria and also because a refusal to grant the firearms licence would have significant business-related consequences for them. Here, ________. EXAMPLE Murphy Applicant for a firearms licence - who had satisfied the statutory criteria and who the refusal would have significant business-related consequences. HELD: Legitimate expectation that licence would be granted; therefore a right to be heard. Because of the significant business-related consequences of a refusal and his satisfaction of the statutory criteria. IF consideration of FACTORS SPECIFIC to the person/entity in question: Kioa v West; FAI v Winneke Where there is consideration of factors that are specific to the [person/entity] providing it does not frustrate the intention of the statute (Kioa v West – Mason J), they would be entitled to answer/address the charges/decision affecting them: Kioa v West; FAI v Winneke. EXAMPLE Kioa v West 2 Tongan parents, with their Australian daughter, sought statutory judicial review against a decision to deport them. Father entered on a student visa, the wife on temporary entry. Their daughter was born in Australia. They stayed past the expiry of their visa in order to earn money for their relatives, who suffered from a cyclone. HELD: Deportation orders be set aside, so the Kioa’s have a chance to present their case. Should have been heard, in accordance with requirements that a person be heard before they have a decision made that will adversely affect them. Mason: Whether there is no obligation will largely depend on a construction of the statute. On applying it to the facts, the Migration Act obviously contemplates the making of an order ex parte, so the natural justice requirement that someone be notified beforehand would frustrate the intention of the Act. Where, however, an order is made to refuse to grant him, that person should be able to answer the charges against them Brennan: The question is one of statutory construction (express limitations). On applying this to the facts, there would be no danger in allowing Mr Kioa to answer the claims against him, as he was not trying to evade immigration officials. EXAMPLE FAI v Winneke Insurance company had a licence to operate an insurance business with respect to worker’s compensation. They were seeking a renewal of the licence. GG could choose to give licence or not. HELD: That the company had a legitimate expectation that the licence would be renewed unless there were adequate reasons to the contrary + those reasons were put to FAI so they could address them. Mason J: NJ not limited to rights - Where someone is being deprived of a right or interest in property, or legitimate expectation, they are entitled to know the case against them and be given an opportunity to be heard (ie entitled to have NJ extended to them) C) SPECIFIC Rights/Interests/Expectations: IF dismissal from PUBLIC OFFICE: Here the facts concern dismissal of [applicant] from a public office. It is established that a hearing or right to response should be given: Dixon v Cth (Printing Officer); Cole. In Cole an ex-immigration officer was denied re-appointment because of bad character, he was informed he was leaving with a clean record. The court held he should be able to defend any accusations made against him. Therefore, here ___________. IF LIVELIHOOD affected: Here the facts concern the dismissal of [applicant] which would impact on the livelihood of [applicant]. In Sanders v Snell, executive officer of a tourism corporation was dismissed. Court noted that although there may be affected contractual rights and expectations of proper termination; where livelihood was affected it was not necessary to consider other rights. Therefore, here __________. IF initial application for LICENCE: Licence is not a mere privilege: Banks v Transport. The court will have regard to the consequences for not granting as well as the selection criteria: Murphy. But NJ will only arise in special circumstances when it is the initial application for a licence: FAI v Winneke (Mason J) Here, _______. IF previously held licence: It will also be relevant that [applicant] was an operator under the previous regime. NJ will apply because there was a statutory criteria and the applicant had been working under the previous regime: R v Gaming Board. Here, ___________. EXAMPLE R v Gaming Board Application for gaming certificate. HELD: Fact that decision turned upon clear and exclusive statutory criteria involving matter personal to the applicant, however it seems likely that some significance was also attached to the fact that the application for a licence had already been operating in the industry prior to the introduction of the new regime. EXAMPLE McInnes Undefined general discretion to confer a boxing manager’s licence. HELD: No notice of objections (to the possible conferral of the licence) or hearing was required. EXAMPLE Murphy Qld Decision: Applicant for a firearms licence. HELD: Legitimate expectation that licence would be granted; therefore a right to be heard. Because of the significant business-related consequences of a refusal and his satisfaction of the statutory criteria. IF non-renewal or revocation of LICENCE: Here [applicant’s] license has been [revoked/ not renewed]. Revocation of licences attracts NJ rules; because there is an expectation that a licence will be renewed; particularly when they relied upon to make a livelihood; however the terms of the licensing scheme/legislation must be considered: FAI v Winneke (Mason J). Therefore unless the scheme/legislation expressly excludes the rules of JR they will apply here. EXAMPLE FAI v Winneke Insurance company had a licence to operate an insurance business with respect to worker’s compensation. They were seeking a renewal of the licence. GG could choose to give licence or not. HELD: That the company had a legitimate expectation that the licence would be renewed unless there were adequate reasons to the contrary + those reasons were put to FAI so they could address them. Mason J: NJ not limited to rights - Where someone is being deprived of a right or interest in property, or legitimate expectation, they are entitled to know the case against them and be given an opportunity to be heard (ie entitled to have NJ extended to them) IF personal or business REPUTATION: Reputation, personal business or commercial is an interest which attracts the rules of NJ: Ainsworth v CJC. Therefore in this case unless the scheme excludes the rules of NJ, they will apply. Here, _________. EXAMPLE Ainsworth v CJC The CJC and the Deputy Premier agreed that there would be a report into the feasibility and problem areas involved with instituting of a Cabinet decision to introduce poker machines. CJC report was intermediate because report would go to Cabinet and Cabinet would make the ultimate decision. Report dealt with a lot; including the Appellants (Ainsworth), and portrayed them in a negative light, and suggested they shouldn’t be allowed to conduct pokies in Queensland b/c of alleged underworld/mafia connections; Legislative provision said that the CJC should act impartially, fairly, and in the public interest. HELD: CJC failed to apply NJ; Maintenance of a business and commercial reputation is a legitimate interest in line with the principles of ‘legitimate expectation’. As the decision therefore was going to affect an interest, the CJC did not conform to the principles of natural justice as they were required to do. Irrelevant that the Act spelt out the NJ requirements for some functions but not for others – CJC owed NJ obligations for all its functions. No remedy was however available (neither certiorari or mandamus) because: Mandamus: no legal duty to investigate; Certiorari: can’t quash a report that has no legal effect. However could get declaration that their rights had been interfered with. EXAMPLE Johns v ASC Corporate officer had a right to be heard in respect of the release of Australian Securities Commission investigation reports. (One reason why = because of impact on reputation). 1.3 NJ APPLY to PRELIMINARY decision OR INVESTIGATION? (ONLY if relevant) Here, [decision to …] is arguably merely part of [an investigation / preliminary decision] because [facts]. Historically where there was no enforcement of penalties NJ would not apply: Testro Bros. However this has been overruled (Annetts, Ainsworth) and now NJ will apply providing the [report etc.] adversely affected a legal right, interest of legitimate expectation: Annetts v McCann; Ainsworth v CJC. IF ‘Subsequent Repair’ in earlier/later stage possible/occured: In Ainsworth v CJC although it did not apply, it was conceded that in a multi-stage decision-making process NJ may be satisfied if the process as a whole affords procedural fairness (i.e. could be subsequently repaired later). This approach was approved in SA v O’Shea. EXAMPLE Ainsworth Failed: Because there were really two distinct processes involved and the unfairness might or might not be cured at the later stage. EXAMPLE SA v O’Shea Succeeded: Governor-In-Council was not required to accord to NJ in deciding whether or not to accept a parole board recommendation for release of a prisoner, because the board had already accorded with NJ and the later decision turned upon an unfettered political discretion. Here, ________. (Refer to whatever/right/interest/LE used above). EXAMPLE ENQUIRY Annetts v McCann Under the WA Coroners Act, a person was given the right to appear in front of the inquiry, where they had a sufficient interest; 2 boys had died in the desert, one from thirst and the other from a gun shot wound. The parents wanted to having a final speech at the end of the evidence – to reply to anything detrimental said about them; The coroner refused to allow it. Held: Coroner should reconsider that decision / decision should be reviewed. Where the parents were responding to anything detrimental said about them or their children, then it would be against the rights of natural justice to have them not heard. They had passed the threshold question here: If it was a general statement, then the refusal would not amount to a breach of the rules of procedural fairness. N.B. Just because parliament failed to stipulate in legislation cant’ infer meant to deny NJ. EXAMPLE REPORT Ainsworth v CJC The CJC and the Deputy Premier agreed that there would be a report into the feasibility and problem areas involved with instituting of a Cabinet decision to introduce poker machines. CJC report was intermediate because report would go to Cabinet and Cabinet would make the ultimate decision. Report dealt with a lot; including the Appellants (Ainsworth), and portrayed them in a negative light, and suggested they shouldn’t be allowed to conduct pokies in Queensland b/c of alleged underworld/mafia connections; Legislative provision said that the CJC should act impartially, fairly, and in the public interest. HELD: CJC failed to apply NJ; Maintenance of a business and commercial reputation is a legitimate interest in line with the principles of ‘legitimate expectation’. As the decision therefore was going to affect an interest, the CJC did not conform to the principles of natural justice as they were required to do. Irrelevant that the Act spelt out the NJ requirements for some functions but not for others – CJC owed NJ obligations for all its functions. No remedy was however available (neither certiorari or mandamus) because: Mandamus: no legal duty to investigate; Certiorari: can’t quash a report that has no legal effect. However could get declaration that their rights had been interfered with. EXAMPLE RECOMMENDATION Hot Holdings v Creasy The Mining Act provided the Minister could grant a mine lease, a 2-stage decision-making process: Mining warden would consider it first, and make a recommendation to Minister; Then the Minister would make the decision. Here, question about who had priority over a mining site, and as the Act authorised him to hold a ballot, he made a decision to do so; Hot Holdings sought to quash a decision made by a mining warden to hold a ballot, under the Mining Act. Respondent argued just a recommendation. HELD: Certiorari available – 3:2 majority. Brennan J: Available in two types of situations: 1. Where the decision under review is the final decision - on the facts here, would be the Minister’s decision 2. Where the decision is the first in a two-stage process - the question must be then: does that intermediate decision sufficiently affect a person’s rights? Recommendation? Yes. Mining warden’s decision under certiorari, would affect applicant’s rights, as Minister must consider warden’s decision; This preliminary decision did affect the company’s interest; Gave itself sufficient weight to say it sufficiently affected, so as certiorari applied. 1.4 NJ APPLY when RIGHT OF APPEAL? (ONLY if relevant) Here, [decision-maker] may argue that because there is a right of appeal NJ cannot be made out. In Calvin v Carr the privy council held that it is a question of substantiative justice by examining three possible situations. Here, we have the [1 , 2 , 3 ] situation and thus applying Calvin, ____(short!). Three Situations in Calvin v Carr nd 1. Rules/Legislation provide str rehearing in same body – where 2 hearing is meant to supersede the 1 = impartial de novo appeal – usually cure any loss of NJ. 2. Hearing structure indicates the procedural fairness required at both instances = NJ required at both levels 3. Intermediate situation – Decision would be reviewed to decide whether accurate = case by case consideration N.B. Some NJ defects at first instance can never be remedied. McHugh J in Miah set out factors to determine whether appeal right will cure NJ defect, they are: (apply as you go) • How preliminary the initial decision is - • Whether reputation was already affected - • Level of formality at first stage - • Urgency of the matter - • Nature of the appellate body - • Breadth of the appeal - • Subject matter of the decision - N.B. IF full and fair hearing on appeal: Here the structure incorporates provision for an appeal and despite earlier denial of NJ; such an appeal was taken and there was a full and fair hearing. As such NJ will not be applicable here because any denial of NJ has become irrelevant: Ex parte AALA (at [50] per Gaudron and Gummow JJ). EXAMPLE Calvin v Carr Horse racing regulated by the Rules of Racing of the Australian Jockey Club, which is a consensual arrangement but also reinforced by statute. They have a comprehensive code or rules which form the basis of conducting rules in racing. A horse, CM, was run from New Zealand. There were extensive bets on the horse, but it run poorly – although did finish 4th, after a strong run at the end; An extensive investigation took place, upon which consideration of a great deal of evidence occurred. The jockey was ruled against, and banned for 1 year - Jockey appealed; all jockeys etc. were available for cross examination, both parties were represented by counsel. HELD: Decision could be ruled void even though subject to further appeal. No set test for overruling; However, on the facts here no breach of procedural fairness. EXAMPLE Miah The prosecutor was a citizen of Bangladesh, and applied a protection visa under the Migration Act. He was entitled to a protection visa under the Convention of the Status of Refugees. There was some concern about religious fundamentalists in Indonesia, but after change of government he was safer. The delegate was not convinced the person was a refugee - prosecutor applied for the constitutional writs. HELD: Procedural fairness required that the prosecutor should be given the chance to support his contention that there was a change in government which made it dangerous for him. Gleeson CJ: A right to appeal can also give an indication that procedural fairness was required to be applied also; That the prosecutor was able to appeal and get a full statement of reasons would imply that there was a right there to ensure that procedural fairness was complied with. N.B. Kirby & Gaudron held the right of review should not affect the standard expected of the first decision maker. EXAMPLE Re Refugee Tribunal; Ex Parte AALA Prosecutor was born in Iran, sought to gain a protection visa; Minister for Immigration refused the application, when the Refugee Review Tribunal also reviewed the decision. There was some question of persecution because of the concern of some real estate deals with the Shah’s property would lead to some real estate deals. Some statements were provided in the appeal book that said if the prosecutor’s accomplice was found, he would tell the authorities to make it easier on himself - these statements were not considered. Held: Decision overturned - Where there is an internal appeal right which is a full and fair rehearing of the previous appeal, irrelevant to appeal to courts. However was a breach of NJ - th
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