At the risk of being hopelessly reductive, one may consider the concept of procedural fairness (a.k.a, “natural justice”) as being the legal equivalent of the much espoused “fair go”. One would be missing some vital nuance in doing so, but as analogies go it does not stray too far into the “tortured” end of the spectrum. That is particularly so when considering the “hearing” aspects of procedural fairness; that is, whether a party has the right to make submissions, to understand critical issues to be assessed and to be informed of adverse information against them that is credible, relevant and significant.
So, it is a big deal. It is both a significant protector of rights and check on the exercise of public powers, and the requirements are broadly applicable across regulatory regimes. So, it is important that anyone directly impacted by a government decision has some understanding of its scope and application. However, it is also somewhat fuzzy at the edges.
In this article, special counsel Alistair Bridges and lawyer Emily Schilling consider recent court decisions that illustrate the complexities that abound when trying to understand what is required and how it applies.
The sounds of silence
Procedural fairness is given such importance in Australian law that it will often be implied into legislation governing administrative decisions; this even occurs where that legislation does not explicitly provide for any procedural rights.[1] In fact, in assessing procedural obligations under a statutory scheme, the starting point is a presumption that the legislature did not intent to deprive its citizen of natural justice.[2]
Take the High Court decision in Disorganized Developments v South Australia (“Disorganized Developments”) as an example.[3] In this matter, the South Australian Government had declared land owned and occupied by members of the Hells Angels Motorcycle Club to be a “prescribed place”. The significance of this was that, under South Australian law, it is an offence for members of criminal organisations, (which the SA Government considered the Hells Angels to be) to enter a prescribed place. This meant that any time a member of the club entered the club’s land they would be committing an offence. The South Australian Government had not given notice to the members of its intention to declare the land.
The High Court considered that whether procedural fairness should not be presumed is a matter of statutory construction.[4] It is only when there is clear and unambiguous statutory language that restricts procedural fairness, or where a duty to afford procedural fairness would be inconsistent with the proper construction of the statute, that procedural fairness is restricted. While the High Court noted the objective of the declaration was to disrupt criminal activity and that “considerations personal to the owners and occupiers of land ordinarily can be expected to be secondary to broader policy considerations”,[5] it did not find anything sufficient in the relevant statutory scheme to displace the common law presumption. The High Court concluded,
“in the absence of any clear words that would displace the presumptive obligation to afford procedural fairness … there is no reason to conclude that the scope of the regulation-making power is unconstrained by a duty of procedural fairness…”.[6]
In so finding, the High Court stated that the members were entitled to be given reasonable notice of the proposal to declare their land and to give them an opportunity to supply information or make submissions as to matters within their knowledge as an owner or occupier that may be relevant to a decision to exercise the declaration power, despite the fact the legislation did not explicitly discuss that opportunity.
So, statutory silence alone does not pre-empt procedural fairness. However, the content of the obligation will need to be derived within the context of the statute into which it is implied. For example, in Disorganised Developments, in considering the purpose of the underlying legislation the Court found that the obligation did not require owners or occupiers to be informed of the nature or content of information that might form the basis of a recommendation to the Governor to declare a place to be a prescribed place. Not all procedural fairness obligations are alike.
Contents is in the context
This where things get complex. As the existence is implied into legislation, ascertaining its content is a matter of statutory construction. The terms and nature of the legislation, and, in some instances, the surrounding circumstances may impact how procedural fairness is to be provided with respect to any exercise of power. This has recently been highlighted by the High Court in AB (a pseudonym) v Independent Broad-based Anti-corruption Commission (“AB v IBAC”).[7]
AB v IBAC arose in the context of the Independent Broad-based Anti-corruption Commission Act 2011 (VIC). That Act includes provisions that deal with certain aspects of procedural fairness, including a requirement that where IBAC intends to make a special report which includes “a comment or an opinion” that is adverse to any person, then IBAC must first provide that person a reasonable opportunity to respond to the “adverse material” and fairly set out each element of the response in its report.
The question before the High Court was whether the “adverse material” referred to in the Act was the proposed adverse comments or opinions in the special report or whether it extended to the evidentiary material upon which those proposed adverse comments or opinions are based. The Court of Appeal at the Supreme Court of Victoria had interpreted the Act to require only the former.
While procedural fairness is not understood to require persons to be given an opportunity to comment on every adverse piece of information, in the ordinary case, where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is “relevant, credible and significant to the decision made”.[8] The High Court considered these principles along with IBAC’s power and capacity to affect a person’s rights and interests. In doing so, they came to the conclusion that:
- the statutory framework modified the common law presumption “so as to require a connection between the ‘adverse material’ and the proposed ‘adverse findings’, ‘comment or… opinion’”; and[9]
- that the scope and nature of IBAC's powers, when considered in the context of the common law procedural fairness principles, confirmed that the phrase "adverse material" refers to the "adverse information” which IBAC considered justified the proposed comment or opinion.
- however, it may not be necessary for IBAC to provide copies of the adverse material itself. What was required under the IBAC Act was that the person be given the reasonable opportunity to respond to the adverse material, so it may be sufficient that they be provided with the “gravamen or substance’ of the adverse material, rather than the material itself”.[10] [11]
What can be seen from this is the interplay between statute and common law procedural fairness principle. The statute needs to be guided by its terms, but those terms are construed with the context of common law principle. Ascertaining the content of the duty to provide procedural fairness is not a tick-box exercise, but rather an active process of statutory construction.
Jurisdictional errata
A denial of procedural fairness is a legal error. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.[12] This has been illustrated recently in the Full Federal Court case of Warren v Chief Executive Officer, Services Australia.
That case dealt with an appeal of an Administrative Appeals Tribunal (“AAT”) review of a decision made under the Freedom of Information Act 1982 (“the FOI Act”) with respect to documents related to the Robo-debt policy. The FOI aspects of the judgment are very interesting, but more germane to this article are the procedural fairness grounds. With respect to which, the high-level key points are:
- After concluding its case, Services Australia successfully applied to reopen its case, in reliance on new evidence the subject of confidentiality orders and which for that reason was not disclosed to him;
- The new evidence altered the positions pleaded and submitted by Services Australia earlier in the proceedings; and
- Mr Warren only received heavily redacted versions of this new evidence, which did not clearly articulate the changes to Services Australia’s case.
As a consequence, Mr Warren was deprived of the opportunity of knowing what case Services Australia sought to make out on confidential evidence that he was not privy to, which evidence was at variance with that earlier adduced and tested and without being informed that the case had altered. This was determined to be a breach of procedural fairness.
Services Australia argued that even if there had been a breach of procedural fairness, it was not material, in the sense that it had not been shown to cause a practical injustice. In doing so, essentially they were arguing that even if there was a legal error, it was not of sufficient gravity to warrant a finding that the AAT’s decision was invalid.
This position was quickly rejected with the Court. Noting the “intrinsic unfairness” faced by Mr Warren, the Court followed on from the judgement in Nathanson v Minister for Home Affairs by noting that all that was required in such a circumstance was a reasonable conjecture that, had procedural fairness been provided the decision-maker may have arrived at a different outcome. This is an which is an “undemanding standard”.[13] As the High Court explained in this latter case:
To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
It is a big deal
Having an understanding of the procedural fairness obligations that arise under a statutory regime is important both during any regulatory procedure and then, when considering options once a decision has been made.
If you have been involved in any government procedure and are concerned you were not given a fair go, please reach out to our public and administrative law team to discuss what procedural fairness obligations you may have been owed.
This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.
[1] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [13] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at [75] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
[2] Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109 (Barwick CJ).
[3] [2023] HCA 22.
[4] Disorganized Developments v South Australia [2023] HCA 22, [50].
[5] Disorganized Developments v South Australia [2023] HCA 22, [43].
[6] Disorganized Developments v South Australia [2023] HCA 22, [41]-[42].
[7] [2024] HCA 10.
[8] Kioa v West (1985) 159 CLR 550 at 629 per Brennan J
[9] AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10, [27].
[10] AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10, [31].
[11] There was a comment in the draft report from which the gravamen of the adverse material could not be ascertained, but IBAC had given an undertaking that a draft report including that comment would not be communicated to Parliament, see Paras 40 and 41.
[12] Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ.
[13] Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80
