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Legal Briefing

Number 78

14 July 2006

Natural justice and the ‘hearing rule’ – fundamental principles and recent developments

Hilary Manson
Hilary Manson AGS General Counsel
to the Department of Transport and Regional Services
T 02 6274 7211 F 02 6274 6519
hilary.manson@ags.gov.au

Tom Howe
Tom Howe Chief Counsel Litigation
T 02 6253 7415 F 02 6253 7384
tom.howe@ags.gov.au


In law, process can be very important. When a person challenges a Commonwealth decision in court, they can do so not only on the basis of legal errors in the terms of the decision itself, but also on the basis of errors in the process by which the decision was made. Indeed, challenges on the basis of procedural errors are very common.

It is therefore important that Commonwealth decision-makers are aware of the procedural requirements which administrative law imposes, and which courts enforce. The most important is the requirement of natural justice, sometimes called procedural fairness. 1

This briefing is designed to provide AGS clients with an overview of the natural justice obligations that attach to the making of decisions. It focuses upon the requirements of the ‘hearing rule’, that is, the obligation to provide an opportunity to be heard before making a decision. It details the key principles that underpin the hearing rule and outlines some of the matters that should be taken into account by decision-makers so as to best ensure that natural justice obligations are complied with.

The following two points must always be kept in mind:

  • first, whether natural justice is owed depends upon the terms of the legislative scheme in question and whether the interests of a person are materially affected by a proposed decision
  • second, if natural justice is owed, its content will largely depend on notions of what is ‘fair’ in all the circumstances of a given case. 2

Without consideration of the specific legislation and facts that surround a particular decision, it is not possible to provide anything other than general guidance in this area of the law.

General principles of natural justice

The ‘rules’ of natural justice ‘are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise’. 3 In general terms, the obligation to afford natural justice consists of two main requirements.

The first requirement is the ‘hearing rule’ which, broadly speaking, requires that a decision-maker should hear a person before making a decision affecting the interests of that person.

The second requirement is the ‘rule against bias’ (whether actual or apprehended), which requires that a particular decision-maker should not make a decision where the circumstances would lead to a reasonable doubt about their impartiality. 4

These requirements are mirrored in ss 5(1)(a) and 6(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 which provide for judicial review of a decision on the ground that it involved a breach of the rules of natural justice. However, the first requirement, the hearing rule, in particular gives way to any express provision or necessary implication in the statute to contrary effect.

This briefing focuses on the hearing rule. A subsequent briefing will look at the rule against bias.

Application of the hearing rule

The application of the hearing rule involves two questions.

First, does a hearing obligation apply to the particular decision?

Second, where it does apply, what is the content of the hearing obligation? That is, what is a particular decision-maker required to do to satisfy the obligation to provide natural justice in the circumstances of the case?

When will there be an obligation to provide a hearing?

For practical purposes, the critical question in most cases is what does the hearing rule require, rather than does the hearing rule apply. 5

As explained by Mason J in Kioa v West:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. 6

The ‘Mason view’ places emphasis upon the common law as the source of natural justice obligations. Brennan J in Kioa v West emphasised the primacy of the statute. 7 Whilst, for practical purposes, not much may depend on these differing perspectives, the ‘Brennan view’ currently seems to be in conceptual ascendancy. In any event, it is important to remember that the hearing rule is subject to statutory modification or exclusion.

The categories of interest which may be affected so as to enliven the obligation to afford natural justice are broad and include:

  • personal liberty
  • legal status
  • financial interests and proprietary rights
  • other interests, such as a right of confidentiality
  • preservation of livelihood, and even
  • business and personal reputation.

It is clear, however, that such an interest must be directly and immediately affected before procedural fairness obligations will apply. 8 Thus, there are some decisions which indirectly affect a person’s interests but which may not give rise to any procedural fairness obligations. Whether natural justice is owed can be a very vexed issue and it will usually be prudent to obtain legal advice on this point.

The content question – what must a decision-maker do to satisfy the requirements of natural justice?

If natural justice is owed, a number of general factors are relevant to the determination of what is required to satisfy the obligation. These include:

  • the particular statutory regime
  • the nature of the interest affected and the consequences of the decision for a particular person
  • the degree of urgency with which the decision must be made
  • whether it is an area of high-volume decision-making
  • the existence of merits review or a ‘staged’ decision-making process.

Particular statutory regime

In the case of statutory powers, the legislative framework will be significant in determining the content of natural justice. 9 As noted by Brennan J in National Companies and Securities Commission v News Corporation Ltd:

The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice. 10

However, the statutory context will often provide only general guidance as to the necessary requirements of procedurally sound decision-making. In the absence of legislated requirements which operate as a code, it will usually be difficult, if not impossible, to discern from the statute alone the exact practices necessary to satisfy natural justice obligations. 11

Nature of the interest and the consequences of the decision

Generally speaking, the more serious the potential consequences of a decision for a person, the more will need to be done to afford them natural justice. Where the nature of the interest is particularly fundamental and the potential consequences of a decision are grave, allowing an affected person a more extensive opportunity to be heard is likely to be required in order to satisfy natural justice obligations. 12

Urgency

Courts have recognised that the need for urgent exercise of a statutory power can either limit the opportunity of an affected person to be heard or, in extreme circumstances, reduce the content of natural justice to almost nothing. 13 However, in all cases the need for urgency must be genuine and, possibly, within the contemplation of the legislature. Courts will not reduce the content of natural justice where a decision-maker does not treat the matter as urgent, 14 or where the urgency is created by delay or the administrative practices of a decision-maker. 15

Areas of high-volume decision-making

The content of natural justice is also likely to be reduced in areas of high-volume decision-making. The Full Federal Court in Chen v Minister for Immigration and Ethnic Affairs 16 agreed with comments by French J in Zhang v Minister for Immigration, Local Government and Ethnic Affairs 17 that:

... courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources.

It has also been recognised by the High Court that in relation to high-volume decisions, courts should be reluctant to impose demanding requirements, such as affording applicants a right to an oral hearing. 18

Merits review and ‘staged’ processes

Aronson, Dyer and Groves state:

[I]n some cases at least, a preliminary decision may be considered to form part of a broader decision-making process, so that the provision of a hearing in the latter stages can be treated as satisfying the requirements of procedural fairness, or at least as reducing the content of those requirements at the preliminary stage. The general principle, we suggest, is that this should be permitted only to the extent that any significant adverse effects of the preliminary decision upon a person’s interests can be substantially reversed or redressed at a later stage. 19

Thus, preliminary or intermediate decisions may also be subject to procedural fairness obligations. Investigations, recommendations and preliminary or provisional decisions forming part of the decision-making process have been found to attract natural justice. 20

Whether natural justice is required at particular stages of a decision-making process and the significance, if any, of a right of merits review are issues of great complexity which require close consideration of the statutory scheme and the nature and extent of affected interests. 21 As noted by Spigelman CJ:

In some cases an appeal will cure any defect; in others procedural fairness will be required at both levels. There is an intermediate class of cases where ‘a fair decision, notwithstanding some initial defect’ will be upheld on the basis that ‘there has been a fair result, reached by fair methods’. 22

Again, it will usually be prudent to obtain legal advice on these issues.

Important procedural requirements

Adequate prior notice

The basic aim of procedural fairness is to enable a person affected by a proposed decision to respond to any case against them. As a result, it is a general requirement that a person must be provided with reasonable and adequate notice.

Again, the question of what is adequate in the circumstances of a given case will depend on the what is fair in all the circumstances. However, at a minimum it will generally be necessary to alert the recipient of the notice to the subject matter of the potential decision, the kinds of issues which need to be addressed, the potential legal consequences of the decision, and the adverse material under consideration (as to the latter, see below). If the volume of material under consideration is particularly large it may also be necessary to direct the person’s attention to key aspects of that material. 23

Adverse material that is ‘credible, relevant and significant to the decision’

It is a requirement of natural justice that material before the decision-maker that is adverse to the person affected by a decision, and that is ‘credible, relevant and significant to the decision’ be disclosed to the affected party. 24

In the context of the conduct of an inquiry or investigation, the obligation to disclose material will be modified to avoid undermining the gathering of evidence, 25 as long as such material is adequately disclosed before a conclusive or final decision adversely affecting relevant interests is made. 26

The question of whether information is ‘credible, relevant and significant’ is something that must be addressed by the decision-maker before the final decision is reached. 27 It is not enough that a decision-maker (either at the time of the final decision, or subsequently) states that the undisclosed information played no part in the outcome of the decision. 28 Information is ‘credible, relevant and significant’ if it cannot be dismissed from further consideration by the decision-maker before making the decision. 29

The scope of this obligation may differ where the information is provided in confidence. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the decision-maker had received, unsolicited, a letter containing allegations against a person applying for a protection visa. The letter identified the author, but requested that the information be kept secret. The High Court unanimously held that procedural fairness required that the decision-maker at least disclose the ‘substance’ of the allegations and provide an opportunity for the affected person to respond, even if ‘public interest’ considerations meant the actual author and exact content of the letter could not be disclosed. 30

Disclosure of preliminary findings?

A decision-maker is not generally required to disclose his or her thinking processes or proposed conclusions. 31 This general principle ordinarily applies to views formed by a decision-maker about the reliability or truthfulness of information submitted by or on behalf of the person concerned, providing the person ought reasonably be aware of the risk of non-acceptance of their version. 32

However, disclosure of an adverse conclusion may be necessary where the conclusion was not immediately obvious, 33 or was not reasonably to be expected. 34

Whether preliminary reasoning or findings need to be disclosed as a matter of fairness may also depend, in part, upon the nature of the decision-making process. 35

The nature of the hearing: when will an oral hearing be required?

There is no universal principle that decision-makers have to hold a hearing, or conduct a face-to-face interview with a party whose interests are, or are likely to be, affected by the outcome of a proposed administrative decision. 36 However, as a general rule the greater the content requirements of the hearing rule, the more likely it will be that an oral hearing is required to afford the affected party natural justice.

The courts have identified several factors relevant to the determination of whether an oral hearing is required. These include:

  • whether issues of credibility are significant to the decision to be made – if so, an oral hearing is often appropriate
  • the circumstances of the given case and, in particular, whether the person affected by the decision suffers from any relevant disadvantage with respect to writing, or is unlikely to be able to prepare written submissions themselves, or to obtain assistance to do so 37
  • the availability of full merits review of the decision, which, if present, will generally suggest that the primary decision-maker is not required to give an oral hearing. 38

Cost and efficiency considerations 39 and factors such as the statutory framework under which the decision is made, 40 the nature of the decision and the seriousness of the consequences of the decision for the individual concerned 41 are also relevant to determining whether or not an oral hearing is required.

Where the decision-maker indicates the process that will be followed

If a decision-maker stipulates the process that he or she proposes to follow and then departs from that process in a manner which materially disadvantages an interested party, a denial of procedural fairness may be found, even if the stipulated process was not otherwise mandated by the rules of natural justice.

In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the decision-maker was not satisfied with the material before her and told the appellant that she would write to him with further questions. However, the decision-maker made a decision without writing to the appellant as foreshadowed. The High Court held that the effect of the decision-maker’s statement was to leave the review (in this case mandated by the Migration Act 1958) incomplete. By proceeding to make a decision, the decision-maker had denied the appellant procedural fairness:

The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant. 42

However, statements about a proposed process to be followed of themselves entrench no substantive right to compel adherence to that process. A decision-maker can abandon a procedure or policy which has been promised or adopted, so long as the new procedure or policy is itself lawful and not in contravention of some statutory or general law obligation, and the decision-maker gives notice, as necessary, to those who have a legitimate expectation that the procedure or policy will be followed.43 Further, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, 44 the applicant had been given a full opportunity to be heard, and had made submissions about the effect of the proposed decision on his children. A departmental officer stated that he wished to contact the carers of the children to assess the impact of the decision on them, but did not do so. The High Court held that there was no ‘practical injustice’ nor procedural unfairness in this process. As we noted above, the rules of natural justice simply require a process that is ‘fair’ in all the circumstances of a given case.

Other issues

No requirement to ensure that a person takes the best advantage of an opportunity to be heard

The obligation to afford natural justice requires that a party have a reasonable opportunity to be heard, or otherwise to have their submissions considered. However, there is no obligation on a decision-maker to ensure that a party takes best advantage of that opportunity. As highlighted by Deane J in Sullivan v Department of Transport:

... it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. 45

Similarly, it will normally not be necessary to ensure that a person is legally represented to afford them natural justice. However, any conclusion in this regard will turn on the terms of the statute in question, the nature and extent of the interests at stake, and surrounding circumstances. In situations where an affected party is unable to represent themselves, or particularly complex questions of fact or law arise in a matter, or the decision has serious consequences, procedural fairness may require that legal representation be permitted. 46

Exclusion and statutory modification of the hearing rule

The duty to observe natural justice will apply in relation to most statutory powers, unless Parliament has displayed ‘a legislative intention to exclude the rules of natural justice and in particular the common law right … to be heard in opposition to any potential finding which would prejudice ... [a person’s] interests’. 47 In Haoucher v Minister for Immigration and Ethnic Affairs, Deane J stated that:

... the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making … . 48

As recently emphasised by the Full Federal Court in South Australia v Slipper, Parliament must make its intentions very clear if it wants to exclude or limit the obligations of natural justice. Finn J (with whom Branson and Finkelstein JJ agreed) summarised the principles as follows (references omitted):

  1. when a statute confers a power on a public official the exercise of which affects a person’s rights, interests or expectations, the rules of procedural fairness regulate the exercise of that power unless those rules are excluded by express terms or by necessary implication
  2. a legislative intention to exclude the rules will not be assumed or spelled out from indirect references, uncertain inferences or equivocal considerations
  3. an intention to exclude should not be inferred merely from the presence in the statute of rights which are commensurate with some of the rules of procedural fairness
  4. while the rules may be excluded because the power in question is of its nature one to be exercised in circumstances of urgency or emergency, “urgency cannot generally be allowed to exclude the right to natural justice”, although it may in the circumstances reduce its content. 49

Critical to the finding in South Australia v Slipper (that the relevant power could not be exercised without according procedural fairness) was the ‘profound’ effect any exercise of the power could have:

In such a setting, and against the background of a clearly recognised need to “strike a balance” between private and societal interests, one would have expected the legislature to have spoken with unmistakable clarity if it was to deny rights of procedural fairness that could otherwise have been made available to an affected landowner. It has not done so. 50

Often statutes impose procedural requirements with respect to the exercise of decision-making powers. Whether or not such requirements will act as a procedural code and thus exclude the general principles of natural justice is somewhat unclear. In Twist v Randwick Municipal Council it was suggested by Barwick CJ that:

... if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. 51

However, more recent authority suggests that an apparent procedural code may not necessarily exclude (or modify) the requirements of natural justice. For example, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah the majority of the High Court held that the detailed procedural code in the Migration Act 1958 did not manifest a sufficiently clear parliamentary intention to exclude natural justice. This is despite the fact that the Explanatory Memorandum to the legislation introducing the code had noted that it was intended to ‘replace the uncodified principles of natural justice’. 52

Effect of denial of natural justice

A denial of procedural fairness will usually be viewed by a court as a ‘jurisdictional error’ justifying the decision being set aside. However, this will not always be the case. There are two questions the court will address.

The first question asks whether a person was afforded ‘practical’ procedural fairness:

[A]n apparent departure from the highest standards of procedural fairness may not amount to a breach of the obligation to afford procedural fairness applicable to the particular circumstances of a case ... This is not, however, because the contravention is ‘trivial’. It is because the acts or omissions of the decision-maker are regarded as consistent with the ‘practical content’ of the rules of procedural fairness. 53

The second question asks whether the denial of procedural fairness could have had a bearing on the decision (if not, the applicant will be refused relief). Another way of saying this is: did the denial of natural justice deprive the applicant of the ‘possibility of a successful outcome’? 54

However, where the obligation to afford procedural fairness exists, the precise or practical content and the effect of failure to comply will always be controlled by the relevant statute. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs, for example, it was held in part that because the language of the relevant statutory obligation was mandatory, any breach (whether trivial or not) amounted to jurisdictional error. 55

Tom Howe has 20 years’ experience providing general legal advice and assistance on all issues relating to administrative law matters, including appearances before the Administrative Appeals Tribunal, disciplinary tribunals, Magistrates and Supreme Courts of the states and territories, the Federal Court and the High Court. In recent years, Tom has specialised in the delivery of advocacy services. He has been involved as counsel in many precedent-setting cases in the public law field, including in relation to natural justice issues.

Hilary Manson is AGS General Counsel to the Department of Transport and Regional Services. She has significant expertise in administrative law, and regularly assists with decision-making by the department. Prior to her role at the department, Hilary provided extensive advice to a range of government departments and agencies on natural justice issues.

Checklist for decision-makers

Notes

  1. These terms are generally used interchangeably, though ‘procedural fairness’ is more commonly used when referring to particular procedural requirements imposed by statute.
  2. Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504 per Kitto J.
  3. Kioa v West (1985) 159 CLR 550 at 622 per Brennan J.
  4. See, generally, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
  5. See Kioa v West (1985) 159 CLR 550 at 584; von Doussa, ‘Natural Justice in Federal Administrative Law’ (1988) 17 AIAL Forum 1 at 4.
  6. Kioa v West (1985) 159 CLR 550 at 584.
  7. Kioa v West (1985) 159 CLR 550 at 609–611.
  8. Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No. 1) (1991) 32 FCR 219.
  9. Barratt v Howard (2000) 96 FCR 428 at 444 per Beaumont, French and Merkel JJ.
  10. (1984) 156 CLR 296 at 326, references omitted.
  11. Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed, 2004), p. 481.
  12. See Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78 at [117] per Weinberg J.
  13. Heatley v Tasmanian Racing and Gaming Commission (1997) 137 CLR 487 at 513–515 per Aickin J; Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241 per Wilcox J.
  14. Fisher v Gaisford (1997) 48 ALD 200 at 205–206 per Drummond J (O’Loughlin and Goldberg JJ agreeing).
  15. Douglas v Minister for Aboriginal and Torres Strait Islander Affairs (Cth) (1995) 37 ALD 633 at 664–665, 667 and 681–682.
  16. (1994) 48 FCR 591 at 601 per Black CJ, Lee and Heerey JJ.
  17. (1993) 45 FCR 384 at 410–411.
  18. Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497 at [26]–[27] per Kirby J.
  19. Aronson, Dyer and Groves Judicial Review of Administrative Action (3rd ed, 2004), pp. 442–443. See also Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 578 where Mason CJ, Dawson, Toohey and Gaudron JJ stated that: ‘It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness” ’.
  20. See generally Ainsworth v Criminal Justice Commission (1991) 175 CLR 564 at 578 per Mason CJ, Dawson, Toohey and Gaudron JJ; Hall v University of New South Wales [2003] NSWSC 669 at [71]–[75] per McClellan J.
  21. Whilst the existence of merits review may not necessarily exclude the need to accord procedural fairness at an earlier stage, a court may take the availability of merits review into account in deciding, as a matter of discretion, not to entertain a challenge by way of judicial review.
  22. Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at 387, summarising the discussion in Calvin v Carr [1980] AC 574.
  23. A person should not bear an unfair burden of searching for ‘needles in haystacks’.
  24. Kioa v West (1985) 159 CLR 550 at 629 per Brennan J.
  25. National Companies and Securities Commission v News Corporation (1984) 156 CLR 296; Bond v Australian Broadcasting Tribunal (1988) 19 FCR 494.
  26. Shaw Stockbroking Ltd v Australian Stock Exchange (1998) 26 ACSR 702; 16 ACLC 827; Kelson v Forward (1995) 60 FCR 39.
  27. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411; [2005] HCA 72 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
  28. This may be modified by statute: see, for example, section 424A of the Migration Act 1958; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411; [2005] HCA 72 at [12] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
  29. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411; [2005] HCA 72 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
  30. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411; [2005] HCA 72 at [29] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. See also NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567 at [90], [113] per Beaumont, Conti and Crennan JJ.
  31. Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 per Fox J.
  32. Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–592 per Northrop, Miles and French JJ; VBAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1288 at [5] per Sundberg J; Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ and [295] per Callinan J; and Kioa v West (1985) 159 CLR 550 at 586 per Mason J. These principles may require modification in the case of inquiries which have inquisitorial aspects: see Annetts v McCann (1990) 170 CLR 596.
  33. Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 107–108 per Jenkinson J; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591 per Northrop, Miles and French JJ. See also Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 at 296 per Keely J; McGregor v Gallop [2002] ACTSC 45 at [25] per Crispin J.
  34. Pancharatnam v Minister for Immigration, Local Government and Ethnic Affairs (1991) 26 ALD 217 at 222–223 per Jenkinson J.
  35. Abebe v Commonwealth (1999) 197 CLR 501 at [187] per Gummow and Hayne JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [16]–[26], [59] per Gleeson CJ, Gummow and Heydon JJ (McHugh J agreeing).
  36. See Ashmore v Commissioner for Superannuation (2001) 62 ALD 97 at [58] per Moore J; Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497 at [25] per Kirby J.
  37. Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 602.
  38. Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497 at [25]–[26] per Kirby J.
  39. Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497 at [27] per Kirby J.
  40. Re Minister for Immigration and Multicultural Affairs; Ex parte PT (2001) 178 ALR 497 at [27] per Kirby J.
  41. Hill v Green (1999) 48 NSWLR 161.
  42. Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 at [32]–[33] per McHugh, Gummow, Callinan and Heydon JJ.
  43. Country Energy v Williams; Williams v Director-General National Parks and Wildlife [2005] NSWCA 318 at [97]–[99] per Basten JA (Spigelman CJ and Giles JA agreeing); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291–292 per Mason CJ and Deane J; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [177] per Hayne J.
  44. (2003) 214 CLR 1
  45. (1978) 20 ALR 323 at 343.
  46. See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) pp. 532–536.
  47. Annetts v McCann (1990) 170 CLR 596 at 598–599 per Mason CJ, Deane and McHugh JJ.
  48. (1990) 169 CLR 648 at 653.
  49. (2004) 136 FCR 259 at [93].
  50. (2004) 136 FCR 259 at [111].
  51. (1976) 136 CLR 106 at 110.
  52. (2001) 206 CLR 57 at [90]–[105] per Gaudron J, at [125]–[143] per McHugh J and at [178]–[188] per Kirby J; Gleeson CJ and Hayne J dissented (at [49]). Parliament has since amended the Migration Act 1958 by including a new s 422B, which provides that the code ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’.
  53. Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [45]–[46], in a discussion at [41]–[47], per Sackville J (Black CJ and Sundberg J agreeing), citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541.
  54. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [3] per Gleeson CJ, at [51]–[52] per Gaudron and Gummow JJ, citing Stead v State Government Insurance Commission (1986) 161 CLR 141. See also Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at [91].
  55. SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

AGS administrative law contacts

This briefing was prepared by Hilary Manson and Tom Howe with assistance from Robert Orr QC, Sam Rosewarne, Sally Davis, Richard Harding and Nick Gouliaditis. For further information please contact the authors or any of the following lawyers:

Canberra

 

Litigation and dispute management

Tom Howe

02 6253 7415

Andrew Dillon

02 6253 7212

Paul Vermeesch

02 6253 7428

 

 

Privacy/FOI

 

Tara McNeilly

02 6253 7421

Justin Hyland

02 6253 7417

 

 

Advising services

 

Henry Burmester AO QC

02 6253 7016

Robert Orr QC

02 6253 7129

Peter Lahy

02 6253 7085

 

 

Sydney

 

Simon Daley

02 9581 7490

Dale Watson

02 9581 7660

Andras Markus

02 9581 7472

Judy Pownall

02 9581 7451

 

 

Melbourne

 

Libby Haigh

03 9242 1499

Craig Rawson

03 9242 1248

Elena Arduca

03 9242 1473

 

 

Brisbane

 

Maurice Swan

07 3360 5702

Barry Cosgrove

07 3360 5647

Jane Lye

07 3360 5736

 

 

Perth

 

Peter Macliver

08 9268 1100

Peter Corbould

08 9268 1158

David Blades

08 9268 1115

 

 

Adelaide

 

Sarah Court

08 8205 4211

 

 

Hobart

 

David Wilson

03 6220 5471

 

 

Darwin

 

Jude Lee

08 8943 1405

For enquiries regarding supply of issues, change of address details etc.
T 02 6253 7052 F 02 6253 7313 E ags@ags.gov.au

The material in this briefing is provided to AGS clients for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing. © AGS All rights reserved

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