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Ensuring Procedural Fairness in the Decision Making Process Print E-mail

Decision_intro.jpgSimon Grant delivered the following paper on 7 March 2013 as part of the Legalwise seminar “Decision Making and Writing Reasons”.

Administrative decision making is one of the most important functions of any government officer. At times, administrative decisions can, quite literally, mean the difference between someone gaining a livelihood and not. The counter point to this position is making a decision which may need to protect the public, the environment or even an entire industry. In making any and all of these decisions, the rights of all involved must be considered.

The term “Procedural Fairness” broadly encompasses three principles, possibly four. They are:

1. the hearing rule - the duty of a decision maker to ensure that any person whose interests may be adversely affected by a decision is given an opportunity to make submissions on that proposed decision;

2. the bias rule - the decision maker is to be someone who is both impartial about the outcome and is seen to be impartial;

3. the no-evidence rule - a decision is to based upon cogent evidence that supports submissions made; and arguably

4. the reasons rule – a decision maker should provide written reasons as to why a decision is made.1

angel.jpgIn writing this paper I have focussed on the hearing rule only2. The hearing rule is developed from the Latin maxim audi alteram partem, which literally translates as “listen to the other side”. To make just decisions, a decision maker must ensure they take into account all the relevant information, and can only do that if they hear all sides. Of course, in many statutes the relevant information is identified or particularised. The statute under which a decision is being made is the decision maker’s first port of call, so to speak, on the journey of making the decision. Of course there are always nuances to be additionally considered.

Below I attempt to provide a quick run-through of the main aspects of “who, what, when and how” for consideration by decision makers. I will cover –

  • who is owed a hearing, and how do you identify them;
  • what must this person be provided with;
  • when is the person to be provided the opportunity; and
  • how the decision maker actually provides that opportunity.

Who is owed an opportunity to be heard?

Perhaps one of the most difficult questions for decision makers to answer is “To who do I owe the duty to ensure they are heard?”. Generally, it can be said the duty is owed to any person whose interests may be adversely affected. The easy party to identify is the actual applicant or subject of the decision. Who else might a duty be owed?

angry_man.jpgWhile possibly the furthest thing from most decision maker’s minds, the reality is that any person who would have standing to bring an application to court for a statutory order of review may be considered as a person whose interests may be adversely affected. Under the Judicial Review Act 1991 (Qld) (“the JR Act”), a “person aggrieved” is entitled to seek a statutory order of review.3 This is also the case under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).4 So in preparing to undertake a process that will result in the making of a decision, decision makers should consider who might be a person aggrieved and thereby have standing to bring an application to court.

Initially, case law focussed on whether an applicant to the court could demonstrate that they had a “special interest”. In the matter of Onus v Alcoa of Australia Ltd5, Stephen J considered that “special interest”:

“. . . seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of the plaintiff's relationship to that subject matter.”

In the same decision, Gibbs CJ commented on the need to balance considerations such as preventing “busy bodies and cranks and persons actuated by malice” and those affected by “intellectual or emotional concern” only with the need to “prevent the law from being ignored or violated” . Ultimately, His Honour stated6:

“The rule is obviously a flexible one . . . the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.”

The courts have more recently applied this consideration in a fairly liberal way. In BHP Coal Pty Ltd & Ors v Minister for Natural Resources and Mines and Anor 7, McMurdo J endorsed the approach whereby the term “a person who is aggrieved” must be given a broad construction. An applicant for statutory order of review must still hold an interest that is greater than an interest that is held by the public generally, but as to what that interest may entail has been diverse, dependant on the facts and the statutory framework under which the decision is being made.

Compare the following examples –

  • In Queensland Advocacy Inc v Criminal Justice Commission 8, White J held that a decision of the Commission to refuse to hear from an organisation representing people with disabilities while conducting a hearing into official misconduct in a residential home for people with disabilities was a breach of natural justice.
  • In Shaw v Barker9, the Queensland Court of Appeal upheld a decision that a land owner who had a compensation agreement with a mining lease holder did not have standing in relation to a decision by the Minister to agree to the mining lease holder transferring 95% of its interest in the lease to another company.
  • In Galt v Flegg10, the unsuccessful candidate for party pre-selection was held to have standing to challenge the pre-selection process where it was not conducted in accordance with the constitution of the party.
  • In Resort Management Services Ltd v Noosa Shire Council11, a land owner affected by a Council decision to amend its strategic plan to effectively remove the land from an area marked as “tourist facility growth area” was held to have standing.
  • In Wright & Bright v The Minister for Employment, Skills & Mining12, Douglas J held that two landowners with properties within 2 to 3 km of a non-operational mine site had standing to challenge a decision of the Minister to recommend renewal of the mining lease and the decision of the Governor in Council to grant such renewal for 15 years. This was on the basis that the proximity of their land to the mine meant they were more likely to be affected by resumption of mining operations.

Perhaps the high water mark of considering whether a person had standing was the statement of Chesterman J in North Queensland Conservation Council Inc v The Executive Director, Queensland Parks and Wildlife Service13. In that matter, His Honour proposed a new approach, not focussing on whether the person has a special interest, but rather whether their action would be an abuse of process -

“[12] The rationale for limiting standing as explained by Gibbs CJ in Onus suggests a solution to the problem. The plaintiff should have standing if it can be seen that his connection with the subject matter of the suit is such that it is not an abuse of process. If the plaintiff is not motivated by malice, is not a busy body or crank and the action will not put another citizen to great cost or inconvenience his standing should be sufficient. The difference in approach is that the former looks to the plaintiff’s interest in bringing the suit. The latter looks to the effect of the proceedings on the defendant. One is, in a sense, the obverse of the other. If a plaintiff’s interest is insufficient the proceedings will be abusive. It is, however, probably easier to identify a proceeding which is an abuse of process than to recognise a “special interest”. The distinction which must be drawn is between those who seek to prevent an abuse of process and those who seek to abuse the process itself”.

This statement has received endorsement on a number of occasions, but the approach does not appear to have received total adoption by courts.

So just how does the decision maker identify who may fall into the definition of a “person aggrieved”? At first glance the above comments might appear to indicate that a decision maker will have to conduct exhaustive examination to identify all possible people who might be aggrieved. The reality is that, in the overwhelming majority of decisions, persons who might be aggrieved will be easily identifiable. It is only in the rarer cases that a decision maker will need to contemplate a need to consider a wider audience.

Often statutes will provide for public notice periods, where applicants for licences, tenures, approvals, or the like, are required to give some form of public notification of their application and proposal, followed by a period in which the public at large can make any submission on the proposal they wish. Such processes are a useful way of identifying possible persons who will require consultation. Similarly, a review of files related to the subject matter can reveal the identities of possible interested parties.

The important consideration however is whether a person is merely interested from an emotive or intellectual point of view, or whether they will be a person aggrieved by the decision.

What will the person require?

speaker.jpgThe obligation upon the decision maker is to provide a person who may be aggrieved by a decision with the opportunity to put their case before the decision maker. In relation to what form an opportunity takes, you need to have regard to the legislative intention for the particular decision or discretion being exercised.14 At a minimum the person will require notice that a decision will be made that may adversely affect them.15

In the majority of matters, though, the person will be entitled to understand the particulars of the matters adverse to their position, and the possible decision that may be made, in order that they can respond if they choose. The level of detail required really must be considered on a case by case basis, incorporating such factors as the nature, complexity and seriousness of the issues in question.16

Accordingly, the question arises as to what should be disclosed to the person. Traditionally, all the information held by the decision maker that is adverse to the person and was not supplied by that person should be disclosed to them before the decision is made.17 This does not necessarily mean that all documents should simply be copied and handed over, but if information is summarised, it must be clear, accurate and complete. Where a statement is misleading as to what material is already held by the decision maker, there may be a breach of natural justice.18

However, the actual extent of disclosure is, again, flexible and dependent upon the circumstances of the case. For example, the level of disclosure required as part of an application for grant of a licence under an Act will be different to that required where an investigative inquiry is being undertaken under an Act.19 In such matters, it may be appropriate for an investigative body to maintain some confidentiality on the basis of public interest in protecting certain information.20 If the end result of such an investigation is, for example, the publication of a report, then at some stage prior to that, the person will need to be given the opportunity to respond to the adverse information.

There is no general rule requiring creation or provision of a transcript of oral hearings before a decision maker.21 However, investigative tribunals will find such a requirement will arise at the end of an inquiry after evidence of all witnesses has been taken.22

A decision maker is not generally required to disclose their conclusions “so far” for comment before making a decision.23 Where a person has already been given an opportunity to comment, there is certainly no requirement that they be given a second opportunity in the absence of new material.24

Where the material changes, the obligation will arise again, despite any prior opportunity to comment. For example, a failure to seek comment from a visa applicant on a change of government in the applicant’s home country, where that change was relevant to a fear of persecution, was found by the High Court to be a breach of the duty.25 The Court emphasised that the relevant factors for consideration were the equivocal nature of the new information, its newness and unexpectedness, its critical importance, and the fact the applicant’s view on it would have been instructive.

The deletion or non-disclosure of irrelevant material does not result in a denial of procedural fairness.26 But a decision maker cannot fail to disclose information that is “credible, relevant and significant” on the basis that no weight would be given to the information in making the decision.27

When is the opportunity to be heard to be given?

shy_speaker.jpgIn this part of the paper I will consider two aspects – what is a decision for the purposes of ensuring procedural fairness, and at what time in the process is the opportunity to be provided.

In relation to “what is a decision” for the purposes of affording procedural fairness , as part of any process, there are a multitude of decisions made by various people involved with the process. The term is defined in section 4 of the JR Act. It involves the element of a “decision of an administrative character” made either under an enactment or involving funding out of amounts appropriated by Parliament or raised under an Act.

This has been interpreted to mean a decision which is either final or may be described as the operative decision.28 Further, the decision must be either expressly required by an enactment, or impliedly required to give effect to the Act, and must confer, alter or affect the legal rights or obligations of the person concerned.29

As a result, there is no requirement to ask interested parties each time a decision is made during a process whether they wish to have an input. It is only where the final or operative decision is to be taken that the obligation will arise. It is important to recognise also that not only is a final decision under an Act able to be reviewed, but also in a number of circumstances, the making of a recommendation or the giving of a report may also require natural justice to be afforded.30 In addition, where a disciplinary hearing involves a penalty to be determined, a hearing ought be given on the question of penalty as well as the substantive charge for which disciplinary action is sought.31

However, under the JR Act, an aggrieved person may also seek a statutory order of review for conduct engaged in for the purposes of making a decision. How is this to be reconciled against the fact the duty to afford natural justice arises only in relation to the final or operative decision?

The High Court considered this in application of similar provisions under the ADJR Act in Australian Broadcasting Tribunal v Bond.32 The majority of the Court held that the provision was aimed at allowing review of conduct from a purely procedural aspect. Subsequent decisions in relation to the ADJR Act have confirmed the view that not every step toward a decision will be reviewable, but only conduct which leads up to making a relevant decision.33

Some examples of conduct are as follows –

  • The process undertaken by customs officials leading to formation of an intention to seize property is reviewable conduct, as it is a process of reasoning involving procedural determinations.34
  • A request made to an applicant for a visa that certain questions be answered, and a determination that information provided was relevant to a decision, has been held to be conduct.35
  • Consultation by the National Occupational Health and Safety Commission with the Human Rights and Equal Opportunity Commission in the course of formulation of an industry code of practice has been held to be conduct.36
  • A decision to not reconvene a Tribunal has been held to be conduct37, as has a refusal by a disciplinary committee to grant an adjournment.38

It would be expected this reasoning would be adopted in relation to the JR Act.39 In Queensland, the issue of a letter by the Commissioner for Stamp Duties indicating it may be necessary to issue a summons to attend and answer questions about stamp duty was held not to be conduct40.

In relation to timing for offering an opportunity to be heard, this is again entirely dependent on the decision to be made or the conduct being undertaken. There is no requirement that the opportunity be given at the earliest possible time, but a timely approach assists in reducing the chances of breaching the duty.41

An important part of timing involves the period allowed to a person to respond to the opportunity. The person will not be afforded a reasonable opportunity to respond where they have no reasonable opportunity to prepare. What such a timeframe is again depends upon the circumstances of each individual case, taking into account such factors as the complexity of the issues, the volume of material or evidence, and the resources and ability of the person to prepare a response.42 This does not mean a decision maker can’t act diligently or expeditiously, but it must be reasonable in the circumstances.43 It may mean that extensions of time to respond are appropriate.44

In an investigative process, the obligation exists at the point in time prior to formation of conclusive views and their publication.45

How is the opportunity to be given?

A decision maker will need to consider whether the opportunity to present is to be by way of oral submissions, in a formal process or otherwise, or by way of written submissions, or a combination of the two. Depending on the way material is obtained by the decision maker, there may in fact be a number of hearings. What form is appropriate depends on the circumstances of the case. There is no requirement that any hearing must involve oral submissions.46

ethics.jpgIn circumstances where credibility is in issue, an oral hearing of all submissions may be required.47 Further, where a decision maker is required to resolve inconsistencies, and cannot do so on written submissions, then an oral hearing may be required.48 But in circumstances where a person was to be detained indefinitely after being declared incapable of controlling his sexual instincts, it has been held the person was entitled to make written submissions to the Governor-in-Council on an application for his release, but not entitled to an oral hearing.49

Where an oral hearing is to be allowed, a question more commonly arising is whether the applicant has a right to representation. Traditionally, it was considered the right existed.50 However, more recent cases have indicated that no absolute right exists and the same principle of considering each case on its merits applied to this question.51 Factors for consideration include the ability of the person to understand the nature of the proceedings and issues, their ability to communicate effectively, the complexities of the case and the importance of the decision.52 The case is similar in relation to non-legal assistance, such as interpreters and migration agents.53

Following on from this is the role of the representative, such as the right to cross examine. Again, the circumstances of each particular case determine whether such a right is applicable.54 Considerations such as the importance of credibility of witnesses can affect this aspect.55

Where a decision maker is a high level official, such as the Governor or a Minister, the hearing process may be delegated to a responsible Minister or appropriate departmental officer.56 Similarly, decision makers who have many functions, such as senior government officers, may delegate fact finding to advisers, and do not have to undertake every step personally, so long as the delegation is carried out in accordance with normal procedures.57 However, ultimately, the decision maker must make the final or operative decision based on an accurate summary of the relevant evidence and submissions, independently of the delegate.58

Where written submissions are made, but not read, there will be a denial of procedural fairness.59

Conclusion

As can be noted, there is no detailed flow chart or checklist that can cover all possible decisions. The obligations owed by a decision maker in each instance depend on a range of factors. This paper will hopefully have provided you with enough flags to help you consider whether a particular party is entitled to natural justice as part of the process, and how to ensure those rights are protected.

paperwork.jpgFurther, decision makers should also look to internal guidance on decision making, In addition, guides such as the Good Decision-Making Guide published by the Queensland Ombudsman will prove invaluable.

Finally, it is always open to decision makers to seek advice and guidance on their process before they make a decision. Taking such advice could mean the difference between avoiding or successfully resisting applications for statutory orders of review, and spending time remaking the decision after a trial.

Simon R Grant LLB LLM

Barrister at Law

28/02/2013


Footnotes

1. This is a more recent concept, originally rejected by the High Court in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, but more recently given some support in matters involving a person’s livelihood where a result may be loss of that livelihood – see Coope v Promotion Appeal Board (1996) 65 SASR 405 and Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729, both cited in Watson v State of South Australia [2010] SASCFC 69. In any event, given the ability to require reasons under the Judicial Review Act 1991 (Qld) and Administrative Decisions (Judicial Review) Act 1977 (Cth), decision maker will in most circumstances ultimately find themselves statutorily required to give reasons, and if you can’t write a cogent set of reasons in support of a decision, it would suggest something is wrong anyway.

2. The author was allotted this topic, with topics covering the other rules allocated to other presenters.

3. See ss 20, 21 and 22 of the JR Act.

4. see ss5, 6 and 7 of the ADJR Act.

5. (1981) 149 CLR 27.

6. Ibid at 35.

7. [2005] QSC 121 at [10].

8. Unreported Supreme Court (Qld), White J, No211/94, 27 April 1994.

9. [2001] QCA 220.

10. [2003] QSC 290.

11. [1995] 1 QdR 311.

12. [2012] QSC 112.

13. [2000] QSC 172.

14. Barratt v Howard (2000) 96 FCR 428, as approved in Jarratt v Cmr of Police for New South Wales (2005) 224 CLR 44 per Gleeson CJ.

15. McLean v Queensland Principal Club (Unreported, SC(Qld),Thomas J, 3 July 1996); see also Ackroyd v Whitehouse (1985) 2 NSWLR 239.

16. L v Human Rights and Equal Opportunity Commission (2006) FCAFC 114.

17. Kioa v West (1985) 159 CLR 550.

18. Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; Muin v Refugee Review Tribunal (2002) 190 ALR 601.

19. Ansett Transport Industries (Operations) Pty Ltd v Department of Aviation (1987) 73 ALR 205.

20. R v Secker; ex parte Alvaro (1986) 44 SASR 60 at 81.

21. Ex parte Smith; Re Russo [1971] 1 NSWLR 84.

22. Bankers Trust Australia Ltd v National Companies and Securities Commission (1989) 85 ALR 475.

23. Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499.

24. Kioa v West (1985) 159 CLR 550 at 588 per Mason J.

25. Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57.

26. Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77; Wickramasena v Griffin (1990) 95 ALR 187.

27. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411.

28. See Resort Management Services Ltd v Noosa Shire Council [1995] 1 QdR 311; Anghel v Minister for Transport (No1) [1995] 1 QdR 465.

29. Griffith University v Tang (2005) 221 CLR 99; Summerson v Cmr of Stamp Duties (Qld) (1995) 31 ATR 142.

30. Resort Management Services Ltd v Noosa Shire Council [1995] 1 QdR 311.

31. Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378.

32.(1990) 170 CLR 321.

33. New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369.

34. Whim Creek Consolidated NL v Cogan (1990) 22 ALD 215.

35. Hand v Hell’s Angels Motorcycle Club Inc (1991) 25 ALD 667.

36. Mount Isa Mines Ltd v Marks (1992) 35 FCR 96.

37. A v Marsh (1995) 38 ALD 566.

38. McGibbon v Linkenbagh (1996) 41 ALD 219.

39. Griffith University v Tang (2005) 221 CLR 99.

40. Summerson v Cmr of Stamp Duties (Qld) (1995) 31 ATR 142 per Mackenzie J.

41. Burns v Gunzburg Nominees Pty Ltd [1998] WASCA 16.

42. See Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14; McGibbon v Linkenbagh (1996) 41 ALD 219; Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807.

43. Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association and Ors (1987) 17 FCR 373; [1987] FCA 49.

44. L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114.

45. National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 323.

46. White v Ryde Municipal Council [1977] 2 NSWLR 909.

47. Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591.

48. Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Finch v Goldstein (1981) 36 ALR 287.

49. Re Pollentine and Attorney-General (1994) 2 QAR 69.

50. R v Board of Appeal, ex parte Kay (1916) 22 CLR 183.

51. Cains v Jenkins (1979) 28 ALR 219; Krstic v Australian Telecommunications Commission (1988) 16 ALD 751.

52. WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 687.

53. SFTB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 222.

54. National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 323; Finch v Goldstein (1981) 36 ALR 287.

55. Harrison v Pattison (1988) 14 ALD 570.

56. South Australia v O’Shea (1987) 163 CLR 378 – delegation of duty of cabinet to provide a hearing.

57. Whyte v Ryde Municipal Council [1977] 2 NSWLR 909.

58. Taylor v Public Service Board (NSW) (1976) 137 CLR 208.

59. Re National Parks and Conservation Authority; ex parte McGregor [2001] WASCA 368.


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