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Natural Justice10.1.1 Breach of natural justice (NJ) or procedural fairness can lead to the invalidity of executive action10.1.3 NJ stipulates standards and procedures to be observed in administrative DM; traditional elements include:Prior hearing rule – ‘hear the other side’; DM must give a person prior notice that a decision may be made, the information on which the decision may be based and their right to make a submission in reply Bias rule – ‘no one can be judge in their own cause’; DM must be free of bias or preconceptions arising from the DM’s financial/personal interests, prior expression, of views or previous role in the decision to be made10.1.4 Common suggestions not endorsed by HC, found other headings apart from NJ:Probative evidence rule – to make findings based on evidence, that is neither arbitrary nor irrationalDuty of inquiry – where the DM has a comparative advantage to find out new information to clarify gaps or discrepancies, or the applicant has a disadvantage or disability (language, youth, inexperience)Statute & ConstitutionBreach of NJ by a Cth official warrants the grant of a constitutional remedy under Const s 75(v)ADJR s 5(1)(a) a breach of the rules of natural justice occurred in connection with the making of the decisionDefinition10.1.7C To ‘act judicially’, within in the requirements of ‘natural justice’, with ‘procedural fairness’ means to act with fairness and detachment; in the ‘absence of actuality or the appearance of disqualifying bias and according of an appropriate opportunity of being hear’ (s157/2002)10.1.9 The CL rules of NJ are taken to apply to the exercise of public power unless clearly excluded (Miah)The obligation can apply both decisions made under statute & in the exercise of prerogative power (Jarratt)Rational for the doctrine10.1.10 NJ ensures that relevant information is considered, promotes impartiality and public confidence, and provides an opportunity to be heard10.1.11 NJ objectives must be balanced against the practical demands of administrative decision makingFairness is not an abstract, but a practical concept; the concern of the law is to avoid practical injustice (Lam)What is required by procedural fairness is a fair hearing, not a fair outcome (SZBEL)When NJ applies10.1.12 NJ applies where:There is an implied duty to accord NJLegislation expressly imposes an obligation to accord natural justiceLegislature has evinced an intention to exclude the obligation to observe NJContent, kind of hearing requires natural justiceThere is a strong presumption that NJ applies to the exercise of judicial power by a court & court-like bodies such as tribunals which are required to ‘conduct a proceeding, review a decision, and hear the parties’The Hearing Rule - FactorsNJ may require additional steps to supply the omission of the legislature (Cooper)10.2.2 Common law implication: CL supplies the omission of legislature; NJ is thus implied by CL unless there is an express legislative intention to exclude it (Cooper) - “express words of plain intendment” (Tanos)10.2.4 Legislative implication : One view - no free-standing right to be accorded NJ which exists independently of statute, thus cannot apply to exercise of prerogative power (Kioa)10.2.7 Universal implication - NJ applies to all governmental DM unless expressly excluded10.2.8 There is a CL duty to act fairly, according to procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention (Kioa)10.2.9 Exceptions include decisions made by Cabinet, some exercises of prerogative power, decisions of subordinate legislative character, ad some policy and planning decisions which affect the community generally (O’Shea)No general obligation to provide an advance warning, sources of information – but a mere subsequent right to reasons and seek a review – transformation of traditional doctrineAdmin decisions are not held to invalid because the procedures of adversary litigation are not fully observed (Kioa)Statutory FrameworkA statutory appeal procedure may displace an obligation to accord NJ; or exclude NJ from only the primary decision; or provide an exclusive remedy for redressing a breach of natural justice10.3.34C The existence of a statutory procedure for making a decision does not necessarily evince an intention to exclude additional procedural requirements deriving from natural justice (Miah)Factors and Circumstances (Miah)Nature of original decision – NJ require are less likely to attach to preliminary decisions then finals onesPublic/private – NJ applies to decisions that are made in privateFormalities required – formal procedures such as a requirement to give reasons at the first level of decision making support an inference that the appeal is not the sole source of procedural fairnessUrgency Nature of appellate body – if the appellate body is a court, right to appeal may exclude the rules of NJ at the earlier level compared to an internal review body which is less likely to be independentBreadth of appeal – right to de novo review supports that NJ requirements were intended to be excluded or modifiedNature of interest and subject matter – consequences for the individual and the subj of the legislation10.2.10 Effect or impact of decision – requires a direct and immediate effect on commercial/personal/financial interests (Peko)Nature of power being exercised & Character of DM Does not apply in a prerogative decision re international relations (Peko); general discretionary power to set the price of bread (Bread Manufacturers); private law function of government (Snapper Island)Where statute confers and unfettered discretion, NJ has no application (FAI)Does not apply to Cabinet (Peko) Governor in Council is generally immune from JR and the Government is bound to act only upon the advice of a Minister or the Cabinet (FAI)However, the Governor’s discretion is not absolute & procedures could be devised for the making of any relevant inquiry and recommendation This offers some protection to the citizen against legislative practise of conferring statutory discretions on a Governor to avoid JR10.2.15C Case: FAIFacts: FAI was denied renewal of its licence to provide workers comp insurance, and was not given an opportunity to present a case to the minister, being the appropriate body to advise the Governor in Council. A license could be granted or renewed if the Governor in Council thinks fit.Existing rights and Interests10.2.14C When an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it (Kioa)A person should be given an opportunity to deal with only adverse info that is credible, relevant and significant to decision to be made (Kioa)10.3.1 NJ applies to decisions affecting people in the individual capacity, but not affecting people indirectly as members of a community; policy or political decisions are not subject to judicial review (Kioa)NJ applies to the cancellation or refusal to renew an existing entitlement, but not to an application or denial of a hope or advantage (FAI)10.3.2 ‘Right or interest’ may refer to a personal liberty, status, preservation of livelihood and reputation, or proprietary rights and interests (Kioa)Case: KioaFacts: Departmental paper recommended that Kioa be deported and commented on matters which Kioa did not have an opportunity to reply to10.3.3C Annetts Modern trend towards widening what is a ‘right or interest’ to a individual person Legitimate expectation10.3.7 Prospective, as well as existing, rights, interests and privileges and benefits are now within the domain of natural justice (Haoucher) Doubt of independent role of legitimate expectation at ‘implication stage’ - not as strong as right/interest (NAFF & Lam)Examples of Legitimate ExpectationAn expectation arising from a gov promise to a specific person (Cole) Expectation generally to the public in a statement of government policy eg a convention ratified by Australia but not incorporated into our law can give rise to a legitimate expectation (Teoh)An expectation that an existing licence will be renewed (FAI)An expectation that an established liberty or interest will not be taken away (Heatley) or a beneficial recommendation will not be overturned (Haoucher)An expectation arising from an established course of practise (Quin)An expectation that an opportunity will be given to demonstrate compliance with a statutory criteria for benefit or concession (Re HK)Actual subjective expectation:Legitimate expectation requires a subjective expectation, which a lost opportunity to put forward information or argument to the decision maker can be shown (Lam)An actual expectation requires the party to turn his or her mind consciously to the matter and reasonably expect that certain procedures would be followedLimitations:10.3.8 A legitimate expectation should be distinguished from mere hope (Haoucher), and must be legitimate, reasonable or well foundedA legitimate expectation gives only a right to procedural fairness and not to substantive enforcement of the content of the expectation - requiring the DM to exercise his or her discretion in a particular way (Quin) Where a TM expresses concern over consistency over evidence and claims that he or she will seek further information to clarify, but fails to do so without good reason before making a decision, the members has failed to accord procedural fairness; unnecessary to consider how material evidence was to the decision (NAFF)Circumstances that do not give rise to legitimate expectations:Recommendations of an ombudsman (Metera)Appointment of a person to conduct an investigation (Ryan)Statutory DM process not directed towards individuals or distinct bodies (Geelong)Effect on a child of the deportation of an estranged parent where it is not stipulated that the best interests of a child are a primary consideration (Lam)A practice or assurance has been negated or terminated by the executive (Save the Showground)10.3.11C Case: HaoucherFacts: An AAT recommendation against an order to deport rejected by the minister in exceptional circumstances. The minister rejected an AAT recommendation against the deportation of Haoucher without consulting Haoucher on the difference in findings from the AAT10.3.13C Case: TeohFacts: Department failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to an international treaty providing that a child’s best interests must be a primary consideration to administrative decisions10.3.12C Case: QuinFacts: HC rejected Quin’s application for a declaration that he and other magistrates be appointed to a newly-constituted court unless they were found to be unfit for judicial office10.3.14C Case: LamFacts: Department wrote to Lam who was in prison seeking details of the carer of his children to assess his relationship with his children. They did not follow through before making the decision to deport himExpress statutory exclusion An intention to exclude the right to accord NJ must be express and is not to be assumed or spelled out from indirect references, uncertain inferences or equivocal considerations (Haoucher)A court will not ordinarily regard a statutory discretion the exercise of which will affect the rights of a citizen as absolute or unfettered, unless there is a plain expression of intent by Parliament (FAI)Hearing Rule - ContentClassical principles:10.4.3 A reasonable opportunity of presenting his or her case (Russell)DM must act in good faith and fairly listen to both sides, no power to administer an oath or need to examine witness; but can obtain information to give the parties a fair opportunity to correct or contradict prejudicial statements (Rice)Special procedural steps may be prescribed by statute to extend or restrict what the principles of NJ ordinarily require (Kioa)Generic factors (Kioa):10.4.4 The statutory frameworkThe circumstances concerning the individual decision to be madeThe subject matter of the decisionThe nature of the inquiryThe rules of the tribunal10.4.5 Nature of the DM (court or administrator) – emphasis tribunal (Miah)Prior notice10.4.8 Notice generally in writing (Andrews v Mitchell):Must contain the details of the date, place of decision/ hearing (Cooper)Must give sufficient time to put up a case (Polemis); to consider all the allegations and obtain material to rebut them (Ansell v Wells) Disclosure of Information10.4.12C Where there is no problem of confidentiality, an opportunity should be given to deal with adverse information that is credible, relevant and significant (VEAL)This refers to information that cannot be dismissed from further consideration BEFORE making the decision; not information which is LATER chosen to express the reasons for which the decision is reached (VEAL)In a case concerning confidential information, the Tribunal is not bound to give the appellant a copy of the letter, or tell him who sent it; but is required to tell him the substance of the allegations and ask him to respond to them (VEAL)The information that may create a risk of prejudice, albeit subconscious should be disclosed (VEAL)10.4.11 Focus on need to disclose specific and prejudicial information (Kioa)10.4.10 A higher level of detail is required where a person’s livelihood or liberty is at stake – extending to legislation & evidence supporting charge; but not specific elements of the decision or the actual documents (Ansell v Wells)Opportunity to comment10.4.9 The individual knows the case made against him (Kanda)Gives the individual a right to rebut or qualify by further info & comment by way of submission upon adverse material from sources b4 the DM (Alphaone)Case VEAL Facts: Protection visa was rejected, but the tribunal had failed to notify the contents of a confidential letter to the applicant. Although the tribunal gave the letter ‘no weight’ in the final decision, this was a breach of NJ.Possibility of a successful outcome10.4.6 All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome, not necessary to show that the breach was material (Aala)The appellants are not required to demonstrate that the Tribunal would have made a more favourable assessment if made reasonably promptly, as long as there was a real and substantial risk that the Tribunal’s capacity to assess was impaired by the delay (NAIS)Relief may be refused only if the court concludes that the applicant could not possibly have obtained a different outcome: (Ucar)Separate legal basis for decision for which there was no procedural unfairness All the evidence pointed to an irrefutable conclusion, no further steps could b taken Who should conduct the hearing 10.4.18 NJ does not require the hearing to be conducted by a DM with administrative functionIt is sufficient that the DM acts on the recommendation of a specialist committee board, as long as he is apprised of all the relevant material in order to evaluate the recommendation and to understand the force of the representations 10.4.19 Main requirements:DM is fully informed of the evidence and submissions arising from the hearing (Arlidge)The aggrieved is given an opportunity to comment on any significant new information comes to light after the hearing is conducted (O’Shea)An adverse allegation is to be disclosed to the aggrieved and an opportunity to comment is given (Kioa)Conduct of the hearing: oral hearing or written submissions 10.4.21 It is usually adequate to provide written submissions where case involves only ‘simple factual matters’; oral hearings are required only if there are matters of credit, veracity or reputation, inconsistencies in evidence or where expert evidence/witnesses are involved (White)Oral hearings: legal representation10.4.22 There is no absolute right of NJ to representation, it depends on the seriousness of the matter & the complexity of issues (Cains v Jenkins), CL right can be excluded by statute 10.4.23 Factors include ability to understand nature of proceedings and issues, person ability to communicate, legal and factual complexity of the case, importance of decision to the person’s welfare and liberty (WABZ)ADT Act (NSW) s 71(1) provides that a party may appear before the Tribunal:Without representationRepresented by a legal practitionerRepresented by an agent who is not a legal practitioner with the leave of the Tribunal under (2)With a person appointed by the Tribunal under (4), where the party is an incapacitated person (intellectually or physically disabled, minor/aged, or other (5))(6) Entitled to use the services of an interpreterCross-examination10.4.24 Usually not required, unless the proceedings are analogous to court proceedings (Hurt v Rossall)DelayThere is an implied duty to conduct a review and arrive at a decision within a reasonable time, to give proper, genuine and realistic consideration to the evidence (NAIS)Where is a breach of the principles of NJ by delay where the delay has denied a party a proper opportunity to present his or her caseDuty to enquireAlthough the DM process is an inquisitorial one rather than adversarial one, the obligations under NJ extend to the rational analysis of what has been put before the CM rather than the exercise of information gathering powers (SZEGT)The Tribunal is not required to give the appellant commentary on his prospects of success, warn him of every reason why his evidence would be insufficient, invite him improve the material he put forward, or acquire information to bolster the appellant’s case Case: SZEGTApplication failed because Tribunal was not satisfied on the basis of material provided that the appellants detentions arose from political activity; appellant argued the Tribunal should have made enquiresThe Rule Against Bias10.5.1 Rule against bias – no person shall be a judge in their own cause; DM must be and be seen to be impartialRule applies universally to all admin DM, although theoretically possible for parliament to exclude the rule10.5.2 Justice should not only be done, but should manifestly and undoubtedly be seen to be done (McCarthy)DM must be disinterested in the matter, and the absence of perceived bias to maintain public confidencePublic perception or outward appearance that suggests a lack of impartiality form part of the test for apprehended bias10.5.3 The principle is applied rigorously to judicial officers and tribunal members, but to a lesser extent to ministers – as the rule is not expected to inhibit a minister from applying government policy 10.5.4 Consequences of finding bias:DM not allowed to participate Decision is invalid10.5.5 DM should be slow to accept a call for disqualification because of allegation of bias, to do so is an abdication of duty and encourages ‘judge shopping’ (Kirby v Centro Properties)10.5.6 Two categories: actual bias and apprehended bias10.5.7 Actual bias - a DM’s mind is so closed to persuasion that argument against that view is ineffectual (Jia)Difficult to prove when decision is made in conjunction with others, or processes are confidential10.5.8 Apprehension of bias - ‘a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind’ to the decision before him (Ebner) – double might test10.5.9 Four distinct and overlapping main cases (Webb):Disqualification by interest – direct/indirect, pecuniary or otherwiseDisqualification by conduct – published statements, conduct in the course of or outside the proceedingsDisqualification by association – direct/indirect relationship, experience or contact with a person/s interested in or involved in the proceedingsDisqualification by extraneous information10.5.10 Examples of circumstancesCommunication privately with one party (Re JRL)DM is both fact-finder, prosecutor and judge (Qurban)DM appears to have views which suggest they may prejudge the outcome (Koppen)DM exhibits towards a party or a witness strong animosity/hostility or partiality/favouritismClose family, personal or professional relationship with a party eg client lawyer (Gordon)DM has financial interest in one of the parties (Kirby v Centro Properties)Test for Prejudgement (Apprehended Bias)10.5.14 Prejudgement = a reasonable apprehension that the Dm would bring an impartial and unprejudiced mind to the issues (Ebner)Objective double might test10.5.22C Whether ‘a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind’ to the decision before him; justice should be both done and be seen to be done (Ebner) 10.5.23C The question is not whether a DM’s mind is blank; it is whether it is open to persuasion (Jia)Prejudgment is a state of mind committed to a conclusion already formed, incapable of alternation, whatever evidence or argument presented (Jia)Preconceived opinions, do not constitute bias, not even expression of such opinions, for it does not follow that the evidence will be disregarded (Jia)Comments must be considered in context (Johnson v Johnson)An expression of views should be capable of being seen as tentative (Vakauta)Real possibilityThe question is one of possibility (real and not remote), not probability; no need to inquire into the actual thought processes of the DM (Ebner) Requires a ‘real likelihood’ that a reasonable observer will find that (Jia):The DM has an opinionWill apply that opinion to the matter in issueAnd will do so without giving the matter fresh consideration in light of the facts and arguments of a caseFair minded observer10.5.14 A ‘fair-minded and informed’ person has knowledge of the particular facts, not just broad general knowledge (Webb)10.5.16 There must be a reasonable fear that the DM’s mind is prejudiced in favour of a conclusion already formed that the conclusion will not be altered despite evidence or arguments (Laws)A DM who is likely to make a decision in the same way as he/she has done in the past does not indicate bias; more than statistical probability is required (Gallagher) The ‘ficticious bystander’: (Johnson v Johnson)Need not have specialised knowledge; must know common place thingsAware of strong professional pressures on adjudicators to act impartiallyWould not reach a hasty conclusion based on remarks taken out of contextIs neither complacent nor unduly sensitive or suspiciousPecuniary Interests/Shares DisclosureNo separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however smaller, in the outcome of the case - can be direct/indirect; depends on size/circumstances (Ebner)Failure to disclose acquisition of shares is a matter of prudence and professional practise, not a legal requirement and does not automatically disqualify the judge or make the ultimate decision invalidVicarious Liability/ Relationships 10.5.25C Procedural unfairness can occur without any personal fault on the part of the DM; but the officers affected by bias must play a role which had significant impact on the decision (Creasy)The relationship between the DM & person affected must be so close or personal, or the person affected must be so influential or dominant as to make the decision impartialThe relationship is assessed by the nature of the association, the frequency of contact, and the nature of the interest of the person associatedCase: Ebner / ClenaeFacts: Trial judge in Ebner had disclosed during the trial that he was a beneficiary under a family trust that held 8000 shares in a bank that was a creditor in bankruptcy proceedingsTrial Judge in Clenae inherited 2400 shares in a bank that brought action against a borrower, during the trail but before the judgement was delivered (did not disclose this)Case: Jia Facts: Minister decided that Jia and White were not permitted to remain in Australia due to criminal convictions. AAT reversed a previous decision of the minister, Minister had commented adversely in a radio interview on the tribunal’s lenient treatment of criminal deportees. Case: Johnson v JohnsonFacts: Judge stated that he would ‘be looking, insofar as it is possible, to independent evidence’ and relying principally on witnesses other than the parties in this matter – due to the ‘wide divergence’ between the evidence of both parties relating to the matters in issueCase Hold Holdings v CreasyFacts: Minister granted exploration licence relying on departmental advice – from officers of which two had pecuniary interest in the outcomeThe Minister was personally impartial and had no knowledge of the interests of departmental officers, the question he was vicariously partial in making the decisionExceptions: Defences to biasNecessity or consent10.5.18 Necessity or consent arises in domestic bodies, associations, boards or tribunals with limited membershipWithin tolerable limits, where there is no real possibility of bias present, or bias can b avoided (Rauber)10.5.19 Necessity for bias:Statutory tribunal – tribunal cannot be disabled from performing its statutory functions (Laws)Bias in the same judge hearing a case on remittal is allowed in small jurisdictions (Sanders v Snell)To avoid requiring another judge to rehear the case and place an unnecessary burden for the parties (Ebner)Waiver10.5.20 DM may declare at commencement any interest which might lead to a perception of bias; failure to object ‘at the earliest opportunity’ may amount to waiver (Smits v Roach)Waiver can occur where no party objects to a potentially biased remark by a DMSerious bias are unlikely to be waived10.5.21 A preliminary biased comment may be ‘cured’ or altered by a later statement (Johnson v Johnson)10.5.24C Failure to object waives the right; but litigant cannot prematurely call upon judge to withdraw from the case (Vakauta v Kelly)Case: Vakauta v KellyFacts: Trial judge made biased comments during trial, failure to complain constituted a waiverHeld: Requirement of NJ will not be infringed merely because a judge carries a knowledge of some medically witnesses who are regularly called to give evidence ................
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