Procedural fairness: the duty and its content
14.11 ‘Procedural fairness’ means acting fairly in administrative decision making. It relates to the fairness of the procedure by which a decision is made, and not the fairness in a substantive sense of that decision.[12] A person may seek judicial review of an administrative decision on the basis that procedural fairness has not been observed.[13] In Re Refugee Tribunal; Ex parte Aala, the High Court held that the denial of procedural fairness by an officer of the Commonwealth, where the duty to observe it has not been validly limited or extinguished by statute, will result in a decision made in excess of jurisdiction and thus attract the issue of prohibition under s 75(v) of the Constitution.[14]
14.12 In considering whether there has been a denial of procedural fairness, courts will examine two issues:
whether a duty to afford procedural fairness exists; and
if such a duty exists, the content of procedural fairness in the particular case.
Is there a duty?
14.13 In 2015, the High Court succinctly stated that, in ‘the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions’.[15]
14.14 The manner in which a person’s interests are affected is relevant to whether a duty to afford procedural fairness exists. There is less likely to be a duty to afford procedural fairness where a decision affects a person as a member of the public or a class, rather than in their individual capacity.[16] Procedural fairness may not apply where a decision ‘affects so many people that it is really a legislative act; or where the range of public policy considerations that the deciding body can legitimately take into account is very wide’.[17]
14.15 A duty to afford procedural fairness may be excluded by legislation. This is a matter of statutory construction, the key question being whether legislation, ‘properly construed, limits or extinguishes the obligation to accord natural justice’.[18] Professors Mark Aronson and Matthew Groves have suggested that courts increasingly construe legislation so as to imply that a duty to afford procedural fairness exists, particularly since the statement by the High Court in Saeed v Minister for Immigration and Citizenship (Saeed) that procedural fairness is protected by the principle of legality.[19] This has made legislative exclusion ‘very difficult in practice’.[20]
14.16 Courts have found that a duty to afford procedural fairness may be impliedly excluded where it would be inconsistent with the proper operation of the relevant statutory provisions.[21]
14.17 Express statutory provisions that set out procedural requirements to be followed in the making of a decision may not establish with the requisite clearness an intention to exclude natural justice.[22] Groves has observed that the ‘weight of more recent cases suggests that the courts are very reluctant to accept that a legislative code is exhaustive and therefore intended to exclude the implication of further common law hearing rights’.[23] This may be the case even where the provisions are described as a ‘procedural code’.[24] In Saeed, the High Court accepted that provisions stating that procedures contained in the Migration Act were ‘exhaustive’ statements of the natural justice hearing rule were effective to exclude the implication of natural justice, but only in relation to the matters to which the provisions referred.[25]
Content of procedural fairness
14.18 There is no fixed content to the duty to afford procedural fairness. The fairness of the procedure depends on the nature of the matters in issue, and what would be a reasonable opportunity for parties to present their cases in the relevant circumstances. Mason J stated in Kioa v West that ‘the expression “procedural fairness” … conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case’.[26] In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, Gleeson CJ emphasised that ‘fairness is not an abstract concept’ and that the ‘concern of the law is to avoid practical injustice’.[27]
14.19 Aronson and Groves have noted that the willingness on the part of the courts to imply a duty to afford procedural fairness, and reluctance to find that it has been excluded by statute, has meant that the crucial question will usually be the content of procedural fairness rather than whether the duty exists.[28]
14.20 Procedural fairness traditionally involves two requirements: the fair hearing rule and the rule against bias.[29] The hearing rule requires a decision maker to afford a person an opportunity to be heard before making a decision affecting their interests.[30] In Kioa v West, Gibbs CJ said that the ‘fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power’.[31] The rule against bias ensures that the decision maker can be objectively considered to be impartial and not to have pre-judged a decision.[32]
14.21 The content of the rule against bias is flexible, and determined by reference to the standards of the hypothetical observer who is fair minded and informed of the circumstances.[33]
14.22 The specific content of the hearing rule will vary according to statutory context. However, a fair hearing will generally require the following:
Prior notice that a decision that may affect a person’s interests will be made.[34] This has been referred to as a ‘fundamental’ or ‘cardinal’ aspect of procedural fairness.[35]
Disclosure of the ‘critical issues’ to be addressed, and of information that is credible, relevant and significant to the issues.[36]
A substantive hearing—oral or written—with a reasonable opportunity to present a case.[37] Whether an oral hearing should be provided will depend on the circumstances. The ‘crucial question is whether the issues can be presented and decided fairly by written submissions alone’.[38] In some circumstances, there may be a duty to allow a person to be legally represented at a hearing.[39]
14.23 The balancing of issues to determine what fairness requires in a particular case may have the result that the content of procedural fairness is greatly reduced. This may be the case, for example, where issues related to national security arise. In Leghaei v Director-General of Security, the Federal Court considered the duty to afford procedural fairness in the making of an ‘adverse security assessment’ by the Australian Security Intelligence Organisation (ASIO).[40]
14.24 Adverse security assessments are relevant to administrative decisions related to visa status.[41] In Leghaei, the receipt of an adverse security assessment resulted in the cancellation of the plaintiff’s residency visa.[42]
14.25 The primary judge found that there existed ‘a duty to afford such degree of procedural fairness in the making of an adverse security assessment as the circumstances could bear, consistent with a lack of prejudice to national security’.[43] However, upon considering the balance to be struck between the public interest in national security and a duty to disclose the critical issues on which an administrative decision is likely to turn, the primary judge held that the content of procedural fairness was ‘reduced, in practical terms, to nothingness’.[44]
14.26 On the other hand, it may be that, where a decision ‘would have especially serious consequences upon a person affected, the hearing rule would require detailed procedural requirements’.[45]
- [12]
Aronson and Groves, above n 1, 399. However, a decision made without evidence, or contrary to evidence, will not generally be considered to have afforded procedural fairness: Bill Lane, ‘The “No Evidence” Rule’ in Matthew Groves and Hoong Phun Lee (eds), Australian Administrative law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 233, 241–2.
- [13]
Australian Constitution s 75; Judiciary Act 1903 (Cth) s 39B; Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(a). Judicial review is considered further in Ch 15.
- [14]
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [17], [41] (Gaudron and Gummow JJ, Gleeson CJ agreeing); [132], [151]–[152] (Kirby J); [169]–[171] (Hayne J). Prohibition is a prerogative remedy issued by a court to prevent a tribunal or inferior court, which is acting or threatens to act in excess of its jurisdiction, from proceeding any further: Ray Finkelstein et al, LexisNexis Concise Australian Legal Dictionary (2015). Where there is a decision-making procedure that has been statutorily prescribed, failure to comply with it in making a decision may also amount to jurisdictional error, known as ‘procedural ultra vires’, and the decision will be invalid: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, [77] (McHugh J); [173] (Kirby J); [204]–[208] (Hayne J).
- [15]
Minister for Immigration and Border Protection v WZARH [2015] HCA 40 (4 November 2015) [30] (Kiefel, Bell and Keane JJ). Procedural fairness will not be implied in relation to an exercise of legislative power by an administrator—that is, in the making of delegated legislation.
- [16]
Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of Administrative Action: Procedural Fairness’ [2.5.150]. See also Aronson and Groves, above n 1, 428–36.
- [17]
Smith and Brazier, above n 4, 570.
- [18]
Aronson and Groves, above n 1, 454.
- [19]
Ibid 455.
- [20]
Ibid.
- [21]
Ibid. See, eg, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636.
- [22]
Aronson and Groves, above n 1, 259–60.
- [23]
Groves, above n 8, 310.
- [24]
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, [90]–[95] (Gaudron J); [143] (McHugh J); [178] (Kirby J).
- [25]
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.
- [26]
Kioa v West (1985) 159 CLR 550, 585.
- [27]
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, [37]. For a more detailed discussion of practical justice, see Ch 8.
- [28]
Aronson and Groves, above n 1, 491. This echoes the language used by Mason J in Kioa v West, who said that the ‘critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?’: Kioa v West (1985) 159 CLR 550, 585.
- [29]
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [25] (Gleeson CJ); Aronson and Groves, above n 1, 398–9.
- [30]
Aronson and Groves, above n 1, 398–9.
- [31]
Kioa v West (1985) 159 CLR 550, 563, quoting Mason J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 360.
- [32]
Aronson and Groves, above n 1, 399; Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of Administrative Action: Procedural Fairness’ [2.5.20].
- [33]
Aronson and Groves, above n 1, 609.
- [34]
Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of Administrative Action: Procedural Fairness’ [2.5.460].
- [35]
Aronson and Groves, above n 1, 517.
- [36]
Kioa v West (1985) 159 CLR 550, 587 (Mason J); Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of Administrative Action: Procedural Fairness’ [2.5.530]; Aronson and Groves, above n 1, 517.
- [37]
Aronson and Groves, above n 1, 549; Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of Administrative Action: Procedural Fairness’ [2.5.630].
- [38]
Aronson and Groves, above n 1, 564.
- [39]
Ibid 567.
Leghaei v Director General of Security [2005] FCA 1576 (10 November 2005). An adverse security assessment is one that is prejudicial to the interests of the person, and contains a recommendation that prescribed administrative action, the implementation of which would be prejudicial to the interests of the person, be taken or not be taken: Australian Security Intelligence Organisation Act 1979 (Cth) s 35.
The exercise of any power, or the performance of any function, in relation to a person under the Migration Act falls within the definition of ‘prescribed administrative action’: Australian Security Intelligence Organisation Act 1979 (Cth) s 35(1).
Leghaei v Director-General of Security [2007] FCAFC 37 (23 March 2007) [14]. Additionally, a person who receives an adverse security assessment will not be eligible for a protection visa: Migration Act 1958 (Cth) s 36(1B)
Leghaei v Director General of Security [2005] FCA 1576 (10 November 2005) [83].
Ibid [88]. On appeal, the Full Federal Court considered that the balance struck by the primary judge was correct: Leghaei v Director-General of Security [2007] FCAFC 37 (23 March 2007) [51]–[55]. See also Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1. The situation for a non-citizen affected by an adverse security assessment has been described as a ‘legal black hole’: the person is ‘unable to know the case against them and thus unable to effectively challenge the unknown allegations; enjoying no right at all of merits review; and enjoying only a legal fiction of judicial review’: Ben Saul, ‘“Fair Shake of the Sauce Bottle”’ [2012] Alternative Law Journal 221, 222. A number of submissions addressed questions of procedural fairness in relation to the making of adverse security assessments: Councils for Civil Liberties, Submission 142; Legal Aid NSW, Submission 137; Refugee Council of Australia, Submission 41; Human Rights Law Centre, Submission 39; Gilbert and Tobin Centre of Public Law, Submission 22; UNSW Law Society, Submission 19.
Aronson and Groves, above n 1, 491, n 2.
Under the publication: Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129)
