The hearing rule

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [10.4.1-26]; [14.3.19-23]].

Extract from NAIS v MIMIA (2005) 228 CLR 470.

Read the judgment of Brennan J in Kioa v West (C&M p580-2). How far does the obligation to disclose information that is “credible, relevant and significant” extend? Who decides what is “credible, relevant and signficant”? What if disclosing the substance of an allegation necessarily discloses the identity of the informant? Did VEAL change what Brennan J had said?

Introduction

[1] Natural justice requires that a person should be given a hearing before a decision is made that adversely affects a right, interest or expectation which they hold. The form of the hearing will vary according to the minimum requirement for procedural fairness in each case – ranging from a judicial-style hearing to only a telephone conversation. Generally it will not be necessary for a person to prove that a breach of natural justice had a material impact on the decision in order to be entitled to relief, unless the court is satisfied that the breach could have had no bearing on the outcome.

  • There is currently less emphasis on a person being given a general outline of the case against them than on being told of a specific item of prejudicial information.
  • It is common for statutes to spell out the procedural requirements for a decision to be made, the issue is then whether natural justice supplements the statutory hearing by imposing an additional requirement.
  • The hearing rule is extremely flexible and depends on the circumstances of the case.
  • Generic factors which will shape the requirements in each case are:
    • The statutory framework
    • The circumstances concerning the individual decision to be made
    • The subject matter of the decision
    • The nature of the inquiry
    • The rule of the tribunal (for example, the procedures that it has normally adopted or which are statutorily required)

Three minimum requirements

[2] There are three minimum requirements implicit in the hearing rule:

  1. Prior notice that a decision will be made.
  2. Disclosure of an outline or the substance of the information on which the decision is proposed to be based (summary of the case to be met).
  3. An opportunity to comment on that information, and to present the individual’s own case.

Prior notice requirement

There are no formal requirements or prescribed forms that notice must take but in practical terms it is generally necessary for notice to be in writing.

  • The notice must contain details of the date and place of the decision or hearing.
  • Prior notice means providing adequate time to prepare a case.

Disclosure of an outline of the case

This refers to some specification of the complaint (charge, order, proposal, resolution or other finding) to enable the person to know the case they have to meet.

  • Often, a summary will be sufficient.
  • A higher level of details is required in cases where a person’s livelihood or liberty is at stake, extending to a reference to the legislation under which charges are brought and the different items of evidence to support a charge.
  • The person is entitled to be told about the information even if it was previously known to them, if the decision-maker proposes to take it into account adversely to the person’s interests.
  • Since Kioa,[3] the focus has switched from general disclosure of the case to be met, to the need to disclose specific prejudicial information.
    • “An opportunity should be given to deal with adverse information that is credible, relevant and significant.”[4]

VEAL [5]

Facts: Whilst the applicants’ case for protection visas were before the Refugee Review Tribunal, the minister’s department received a letter which alleged that the husband was an employee of the Eritrean government and had killed a prominent political figure in Eritrea. The author gave a name and address but requested confidentiality. As required by legislation, the letter was provided by the department to the tribunal, which noted when it affirmed the refusal to grant the visas that it had been unable to test the contents of the letter and had therefore given it ‘no weight’. The High Court held that failure to notify the contents of the letter to the applicant before reaching a decision was a breach of natural justice.
Issue: The importance and meaning of the phrase ‘credible, relevant and significant’ and the question of when confidential information held by a government agency must be provided to a person.
Held: “Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.”
  • There is no absolute rule about non-disclosure of information supplied by an informer requesting secrecy but it would have been preferable in this case to provide the appellant with the contents of the letter without disclosing the details of its author.
Meaning of ‘credible, relevant and significant’:
  • “Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.”
  • Natural justice or procedural fairness is concerned with procedure not with the merits.
  • Whether information is ‘credible, relevant and significant’ is not determined by the characterisation given by a body when expressing reasons (i.e. ‘no weight’).

A distinction is drawn in many cases between the obligation to disclose adverse and prejudicial information, and the decision-maker’s evaluation of the information:

  • “Procedural fairness does not require the Tribunal to give the applicant a running commentary upon what it thinks about the evidence that is given.” (SZBEL)[6]
  • A committee of experts is entitled to exercise its own judgement and use its own knowledge without having to disclose its views to the applicant, for example deciding a benchmark against which ‘excessive services’ were being judged in Minister for Health v Thompson.[7]
  • However, if the expert information is clearly prejudicial to an applicant’s case, the applicant may need to be given an opportunity to adduce evidence to contradict it.
  • In Weinstein v Medical Practitioners Board of Victoria,[8] it was not a breach of natural justice for a member of a medical panel to conduct a Google search on a topic relevant to a fact in issue, without telling the applicant.
    • Where there is a ‘substantial risk’ that online sources contain errors, such as in a wiki, the parties should be notified and given the opportunity to comment.
  • Information of a notorious kind does not have to be disclosed in the notice however, even if it is publicly known, if it could be decisive in deciding a case in a way that a person might be unaware of, it should be disclosed.

The hearing

Who should conduct the hearing?

[9] As a general rule, natural justice does not require that the hearing be conducted by the decision-maker. It is sufficient that the decision-maker is fully aware of everything that was said. When the hearing is conducted by another officer, the main requirements are that:

  • The decision-maker is fully informed of the evidence and submissions arising from the hearing.
  • If any significant new information comes to light after the hearing is conducted, the aggrieved person is given a further hearing on that information.
  • If the summary of the hearing (or briefing paper) contains an adverse allegation, it is disclosed to the aggrieved person and an opportunity is given to comment.

Where the body is a traditional judicial body, such as a court or a tribunal with more formal processes like the Commonwealth AAT, the general presumption is that the body cannot delegate any part of its hearing function.

Oral hearing or written submissions?

[10] In the majority of cases it is adequate to provide no more than an opportunity to make a written submission. This includes cases involving dismissal from employment, refusal of a licence renewal and deportation (Kioa).[11]

  • Generally, an oral hearing is only required if there are matters of credit, veracity or reputation involved, where there are disputed matters of fact or inconsistencies in evidence that have to be resolved, or where there is evidence of a kind that a party should have an opportunity to test, including expert evidence, or witnesses to be cross-examined.
  • Where an oral hearing is offered, it may be a breach of natural justice not to afford an applicant an opportunity, for culturally sensitive reasons, to tell her story in the absence of men, including her husband. (Applicant MI6)[12]

Legal representation

[13]Whether fair process requires legal representation will generally only be an issue in an oral hearing.

  • “There is no absolute right to representation even where livelihood is at stake” but “the seriousness of the matter and the complexity of the issues, factual or legal, may be such that refusal would offend natural justice principles.” (Cains v Jenkins)[14]
  • There is a common law right, where a person is entitled to be present at a hearing for that person to be represented by an agent, which can be excluded by statute.
  • This right was accepted by the majority in Applicant WABZ[15] to reach a conclusion that an applicant for refugee status could be represented by a legal aid lawyer before the Refugee Review Tribunal.
  • The factors which indicated that representation would be permitted were the person’s ability to understand the nature of the proceedings and issues, the person’s ability to understand and communicate effectively in the language employed in the tribunal, the legal and factual complexity of the case, and the importance of the decision to the person’s liberty or welfare.

Cross-Examination

[16]This is only likely to be an issue in oral proceedings and the courts display a greater reluctance to require cross-examination in administrative proceedings than any of the other hearing rights or procedures.

  • According to Hurt v Rossall,[17] factors which should be considered in determining whether to require cross-examination include the nature of the tribunal and whether it follows procedures analogous to a court. Generally it will only be required if a tribunal is using adversarial proceedings or if it is important to test the reliability or veracity of a witness.

NAIS v MIMIA[18]

Facts: The application for review was made to the Tribunal on 5 June 1997, the Tribunal held oral hearings on 6 May 1998 and 19 December 2001 and the Tribunal’s decision was handed down on 14 January 2003.
Issue: Extraordinary time delay constituting procedural unfairness.
Held: The High Court, by majority, allowed an appeal, holding that there had been procedural unfairness. The applicant did not have to prove that if they had been heard, they would have been believed, “the loss of an opportunity is what makes the case of unfairness.”
  • “...delays before hearings, during hearings or after hearings, are radically inimical to fairness and justice.”
  • Delay denies justice to the winning party during the period of delay and undermines the loser’s confidence in the decision.
  • The task of weighing up oral evidence given three and a half years earlier produces procedural unfairness.
  • “...unfairness can spring not only from a denial of an opportunity to present a case, but from a denial of an opportunity to consider it.”

The duty to inquire

[19]There is no freestanding legal duty on an administrative decision-maker to assist a person to make the best possible application, to initiate inquiries to supplement the information provided by an applicant, or to advise a person of deficiencies in their case. In exceptional circumstances there can be a duty to initiate an inquiry to obtain additional information or clarification before making a decision:

  • “Where it is obvious that material is readily available which is centrally relevant to the decision to be made.” (Prasad v Minister for Immigration and Ethnic Affairs)[20]
  • Where there are clear conflicts in the evidence which can easily be resolved. (Prasad v Minister for Immigration and Ethnic Affairs)[21]
  • Where the information on which the decision decision-maker relied was outdated.
  • Where the applicant was unrepresented and in detention or less physically able to articulate their case.
  • Where the agency or department was to blame for the failure of the information to come to light.
  • Where the decision affected fundamental rights.

Minister for Immigration and Citizenship v SZGUR[22] held that there is no obligation on a tribunal to arrange for an independent assessment of mental health to account for evidentiary inconsistencies about an applicant suffering from depression, bipolar mood disorder and forgetfulness.

SZIAI [23]

Facts: The Federal Court held that the Refugee Review Tribunal had made a jurisdictional error by failing to follow through on the inquiry that it had commenced and attempting to resolve diametrically opposed evidence received about the authenticity of a document. The High Court reversed the decision, holding that the tribunal had not made a jurisdictional error.
Issue: failure to make an inquiry, in certain circumstances, may constitute a failure to conduct a review according to law.
Held: There is no general duty of inquiry but if there is “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained” it could give rise to jurisdictional error by constructive failure to exercise jurisdiction.


End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 629-32.
  2. Textbook, pp 632-9.
  3. Kioa v West (1985) 159 CLR 550.
  4. Ibid per Brennan J.
  5. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88.
  6. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
  7. (1985) 8 FCR 213.
  8. (2008) 21 VR 29.
  9. Textbook, pp 639-40.
  10. Textbook, p 640.
  11. Kioa v West (1985) 159 CLR 550.
  12. Applicant M16 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 46.
  13. Textbook, pp 640-1.
  14. (1979) 28 ALR 219.
  15. Applicant WABZ v Minister for Immigration and Multicultural Affairs (2004) 134 FCR 271.
  16. Textbook, p 641.
  17. (1982) 43 ALR 252.
  18. (2005) 228 CLR 470.
  19. Textbook, pp 825-7.
  20. (1985) 6 FCR 155.
  21. Ibid.
  22. (2011) 241 CLR 594.
  23. Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15.
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