Natural Justice II

The hearing rule – content

• The nature of the hearing that the rules of natural justice demand (where a decision is made adversely affecting a right, interest or legitimate expectation) depends on the circumstances [phone call etc.]; there are no fixed rules

• The extension of natural justice to administrative decisions has seen a shift in focus from the person affected being given a general outline of the case to them being told of a specific item of prejudicial information

• Furthermore it is often common for statues to spell out procedural requirements themselves – hence the issue is whether or not natural justice supplements the hearing code by imposing additional requirements

• A number of classic statements concerning natural justice exist but their focus is on the same thing – the content of natural justice depends upon the circumstances of the case:

  • Tucker LJ in Tucker v Duke of Norfolk – the requirements depends on the circumstances of the case; but whatever standard is adopted a reasonable opportunity for presenting the case must be given

  • Lord Loreburn LC in Rice – They must act in good faith and fairly listen to both sides, but they aren’t bound to treat all questions like a trial; they can obtain information in any way they see fit so long as a fair opportunity is given to the parties to correct or contradict statements prejudicial to them

  • Kitto J in Mobil Oil Australia – The procedure to be followed depends on the nature of the tribunal. There is no universally valid test to fit to the infinite variety of circumstances. Full effect must be given to the statutory framework – that is express and implied provisions from the relevant Act

  • Aickin J in Heatley v TAS Racing – The principles aren’t composed of rigid rules but depend on the circumstances. ‘Fairness’ can be satisfied by different procedures even by the same authority in different circumstances

  • Brennan J in Kiao – The starting point is the statute creating the power. By construing it one ascertains whether the relevant power is conditioned on natural justice but also whether any special procedural steps prescribed by the statute extend or restrict what natural justice would otherwise require

• Other than the factors mentioned by McHugh J in Miah some other factors determine the requirement of natural justice (Kioa, Miah, Slipper):

  • The statutory framework

  • The circumstances concerning the individual decision to be made

  • The subject matter of the decision

  • The nature of the inquiry

  • The rules of the tribunal (e.g. the procedures that it has adopted or which are statutorily required)

• There are two differences between the approach under content and implication:

  • Determining content involves considering factors applied in a more discretionary factors depending more on the circumstances of each case

  • The weight to be given to each factor can differ from the weight accorded to factors under implication – e.g. the most important factor is probably the nature of the tribunal

• Breach of procedural fairness entitles one to relief unless the court is satisfied that the breach could have had no bearing on the income – all that has to be shown is a ‘possibility of a successful outcome’ (Stead)

  • This is directed by the guiding concern or threshold question of whether there has been practical injustice

  • Factors which could result in relief being refused are (Ucar explaining the principles from Stead):

    • Analysis of the basis of the decision shows that an incontrovertible fact or point of law provides a discrete basis for the decision that wasn’t affected by procedural unfairness

    • Where the subject matter of procedural fairness did touch upon a material issue, relief can be refused if the respondent demonstrates it would be futile to hold a further trial because the result would inevitably be the same

Specific principles concerning the hearing rule

Outline of the hearing rule

The minimum requirements of the hearing rule are (Comm. for ACT Revenue v Alphaone):

• Prior notice that the decision will be made

• Disclosure of an outline or the substance of the information on which the decision is proposed to be based (a summary)

• An opportunity to comment on that information and to present the individuals one case

  • But a decision maker isn’t obliged to expose his/her mental processes or provisional views to comment before making the decision

The requirement to give prior notice, disclosure and an opportunity to comment

• There are no formal requirements for the notice; it has to be adequate in the circumstances. Practically:

  • It is generally necessary for it to be in writing (Andrews v Mitchell)

  • Must contains details of the date/place of the decision/hearing (Cooper)

  • Must give adequate time to prepare a case (Polemis) [14 days insufficient time to respond to notice of intention to cancel visa in Sales; being informed on the day clearly not sufficient – Polemis]

• Adequate content means specification of the complaint (charge, order, proposal etc.) with sufficient particularity to enable the person affected to know the case they have to meet – the ‘legal nature’, the ‘particular act matter or thing alleged as the foundation of the charge’ (Dixon J Johnson v Miller)

  • Sufficient particularity varies according to the circumstances.

    • Higher levels of detail are required where life/liberty is at stake

    • Generally not necessary to disclose the actual documents they seek to rely on

    • Ansell v Wells – person is entitled to be told of information even if it was previously known to them if the DM proposed to take it into account adverse to their interest

    • Broberg – notice didn’t give particulars about the principal allegation (dispensing prescriptions while not sober), why an enquiry was held etc.

  • The specificity required is a vexed question – in Kioa it was said an ‘opportunity should be given to deal with adverse information that is credible, relevant and significant’ thus echoing the trend to focus on the specific and...

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