50 Federal Law Review [VOLUME 20 DEVELOPMENTS UNDER THE ADJR ACT:THE GROUNDS OF REVIEW JOHN McMll.LAN* 1 AUSTRALIAN TRENDS Administrative law folklore in Australia concentrated for so long on the amusing British cases that portrayed courts as unpredictable and interventionist. Colourful examples included Roberts v Hopwood,l which saw the proposal of the Poplar Borough Council to pay equal wages to men and women overturned as an eccentric and feminist exercise in socialistic philanthropy; Prescott v Birmingham Corporation,2 which displayed the same judicial aversion to a Council proposal to provide free bus transport to elderly pensioners; and Padfield v Minister of Agriculture,3 which disparaged a naively expressed but politically understandable Ministerial decision not to conduct an enquiry into inefficiencies in a milk marketing scheme. The Australian reality, it was often overlooked, was usually more predictable and less interventionist. A predominant theme was the pertinence of judicial restraint in penetrating the exercise of a broad administrative discretion. Accordingly, some of the foundation cases of Australian administrative law reached conclusions which, by contemporary standards, seem astonishing. Such an example was Water Conservation and Irrigation Commission (NSW) v Browning, in which the High Court employed exemplary euphemism in condoning the Commission's practice of refusing to approve the transfer of irrigation licences to Italians: "The growth and character and components of the community by which an irrigation area is worked is not a matter altogether foreign to the Commission's responsibilities".4 Similar restraint was shown in Williams v Melbourne Corporation,S which concerned a challenge to a "regulatory" by-law that confined movement of cattle in the City to 12pm - 8am and, according to the evidence, made that traffic effectively impossible. Australian law, the High Court held, did not permit it to declare the by-law to be unreasonable. A more recent and comparable example was the decision of the statutory majority in Salemi v MacKellar (No 2),6 that natural justice was not available to a deportee, even where the deportation was apparently occurring in contravention of a Government amnesty that had prompted Salemi to identify himself to the authorities. Judicial trends in the last decade have been a striking contrast The threshold of judicial review was moved initially by cases which established that the standard grounds of review could be applied to a decision of a Governor or Senior Lecturer, Law Faculty, Australian National University. Revised version of a paper presented at the Conference "Ten Years of the Federal Administrative Decisions (Judicial Review) Act" in September 1990. [1925] AC 578. [1955] Ch 210. l1968] AC 997. [1947] HCA 21; (1947) 74 CLR 492, 505 per Dixon J. [1933] HCA 56; (1933) 49 CLR 142. (1977) 137 CLR 396. 1 2 3 4 5 6 1991] Developments under the ADJR Act: 1'he Grounds of Review 51 Governor-General,7 of a security intelligence organisation,8 to an exercise of legislative power,9 and perhaps even to a decision of Cabinet. 1o The judicial standards that have been applied further down the executive hierarchy have also been exacting: the High Court decisions in Kioa v West ll and Minister for Aboriginal Affairs v Peko-Wallsend Ltd l2 seemed to fortify a tendency for judicial review to approximate a meticulous scrutiny of departmental briefing papers with an eye to detecting either the inclusion of an unsubstantiated assertion or generalisation, or the omission of a circumstantial fact. 13 Those developments have surmounted but not suppressed the earlier more restrained theme in Australian jurisprudence. The Browning principle that deference should be accorded a broad administrative discretion is quoted just as frequently as the criteria for intervention enunciated in Pekoe It is primarily in recent cases too that the most considered attempt has been made to define which kinds of governmental activity are non-justiciable. 14 It has long been a feature of administrative law that ambiguous standards and contrasting principles provide the margin between restraint and intervention, validity and invalidity. That choice is familiar in the error of law/error of fact distinction, and the jurisdictional error/error within jurisdiction dichotom y. What recent developments have done is to infuse that choice or contrast more extensively throughout the grounds of review. It is difficult to be unequivocal about the degree to which those developments are attributable either to the commencement in 1980 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), or more particularly to the enumeration of the grounds of review in s 5 of the Act. Clearly, however, there have been fascinating developments in the interpretation of the Act, and the tendency of courts has been to identify points of principle with one or more particular grounds. The focus of this paper is to look at those developments, rather than, for instance, to examine whether comparable developments have occurred under the similar common law framework of grounds that operates in other jurisdictions. The paper focuses on the grounds that have attracted most attention in the Federal Court - relevant 7 8 9 10 11 12 13 14 R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, and F AI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342. Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25; see also Alister v R (1984) 154 CLR 404. R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, and Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 38 ALR 93. See the discussion in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218, and South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378. (1985) 159 CLR 550. (1986) 162 CLR 24. Eg Sezdirmezoglu v Acting Minister lor Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561, Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284, Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435, and on appeal [1990] FCA 169; (1990) 94 ALR 177, and Chaudary v Minister for Immigration, Local GovernfMnt and Ethnic Affairs (1989) 19 ALD 496. Eg Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 per Wilcox J; Attorney-General (NSW) v Quin (1990) 64 AUR 327 per Brennan J; Re Ditfort; ex parte Deputy Commissioner of Taxation (NSW) (1988) 83 ALR 265; Century Metals and Mining N L v Yeomans [1989] FCA 273; (1989) 100 ALR 383; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ. 52 Federal Law Review [VOLUME 20 considerations, unreasonableness, natural justice, and application of government policy. 2 FAILURE TO CONSIDER A RELEVANT MA1TER 1S The development of this ground provides a microcosm of judicial review changes in the past decade. Until recently it was a simple, self-evident ground. Early Australian cases did little more than restate its core meaning - that a failure by an administrator to consider a matter may indicate a misapprehension of a statutory obligation)6 Academic treatment was equally brief: definition was usually by example, and discussion was mostly amalgamated simpliciter with "Irrelevant Considerations" .17 There is now more complexity in the ground, that appears in two ways: there are four different elements which a litigant must establish in order to invoke the ground; and each of those elements seems to offer a choice between a standard principle (which serves as an expression of judicial restraint) and an exception or qualification to that principle (which facilitates intervention). Regular application of the exceptions has led to the ground becoming a common basis for invalidating administrative action. The four different elements of the ground, that will be discussed in tum are: that a decision maker was aware or ought to have been aware of a particular matter before making a decision; the official failed to consider that matter when making the decision; the matter was a relevant consideration; and there was an obligation upon the official to consider that matter before making the decision. A related principle, which is not discussed further, is that a court is not concerned to examine the weight attached to a relevant matter, except in cases of excessive or inadequate weight 18 A Knowledge ofa Matter The obligation of consideration can extend to only those matters which are known to an official. The general principle is those matters should be notified to the official by the party who relies upon them. To that extent there is no obligation on the official to initiate enquiries,19 or to give a person advance notice that a submission is insufficiently persuasive to warrant a favourable decision. 20 The obligation is more passive than active. 15 16 17 18 19 The ground is defined thus in s 5(2) (b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth): "failing to take a relevant consideration into account in the exercise of a power". Eg Shrimpton v Commonwealth [1945] HCA 4; (1945) 69 CLR 613. Eg S D Hotop, Principles of Australian Administrative Law (1985, 6th ed) 225, and M Aronson and N Franklin, Review ofAdministrative Action (1987) 31. Eg as stated by Mason J in Minister for Aborigi""l Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. VitUto v Minister for Immigration and Ethnic Affairs (1985) 8 ALN 238, 239, and Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN 13, IS. Bari"" Corporation v Deputy CommissioMr ofTamtion (NSW) (1985) 59 AIR 401, 412. 1991J Developments under the ADJR Act: The Grounds of Review 53 Some important exceptions to this principle have recently been established, under the umbrella principle of constructive or deemed knowledge. More accurately, an official may have an obligation to initiate enquiries, in the practical sense that the official cannot raise the ~ defence that he or she was unaware of the matter and unable for that reason to consider it. The exceptions include: Departmental knowledge: In Minister for Aboriginal Affairs v PekoWallsend Ltd,21 the High Court held that a Minister was deemed to know of a submission which had been made to his Department but which had not been brought to the Minister's attention. As Gibbs CJ stated, "if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law....The material in the possession of the Department must clearly be treated as being in the possession of the Minister" .22 In a recent application of that principle it was held that a Minister had acted unlawfully by not considering a policy devised by a predecessor, of which the Department had not informed the current Minister. 23 Readily available material: It has been held that an administrator acts unlawfully by not attempting to obtain information "where it is obvious that material is readily available which is centrally relevant to the decision to be made"24 or by not making further inquiries where the available material "contains some obvious omission or obscurity".25 Two cases in which this principle have been applied were where an official failed to obtain an explanation from a husband and wife as to why there was an inconsistency between information they provided concerning their marriage; and where an official knew that a person facing deportation had an unsettled compensation claim. 26 Procedural fairness: A decision maker who has reached an unfavourable judgment about the conduct of a party may be required by the requirements of procedural fairness to test that hypothesis by disclosing it to the party.27 Material obtainable only by a department: Where a person lacks any reasonable opportunity to obtain material which plainly has a bearing on 21 22 23 24 2S 26 27 [1986] HCA 40; (1986) 162 CLR 24. (1986) 2162 CLR 24, 31. Nikac v Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400; (1988) 16 ALD 611. Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 65 ALR 549, 563 (ascribing this error to the ground of "unreasonableness"). Videto v Minister for Immigration and Ethnic Affairs (No 2) (1985) 8 ALN 238, 239. Respectively: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 65 ALR 549; and Ertan v Hurford (1986) 72 ALR 695. Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 102 ALR 339. 54 Federal Law Review [VOLUME 20 a decision, a department which is in a more favourable position may bear the onus instead. The illustrations come from deportation cases in which it was relevant to consider the political conditions in a person's homeland. 28 Material rejected by a department: Videt0 29 held that a department may be deemed to know of relevant information which, even innocently, it has dissuaded or discouraged a person from providing. B Failure to Consider a Matter Knowledge by an administrator of a matter will not be sufficient; there must be evidence that the matter was in fact considered, or balanced against other considerations. 3o As a general rule, a bare assertion by an official that a matter was considered has been accepted as adequate. This is implicit in many cases where it was accepted that a reference to a matter in a statement of reasons was satisfactory evidence of its consideration, or it was acknowledged that an official could discharge the obligation by adopting a briefing paper which listed relevant matters.31 The main qualification of that principle is the oft-quoted dictum of Gummow J, that an official is required to "give proper, genuine and realistic consideration to the merits of the case....The assertion by a decision-maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense")2 That qualification has been applied commonly in immigration cases, with a court holding that an official's reasons for deporting a person (while accurate) did not reflect an appreciation of the gravity of the repercussions of that action. Apt descriptions of that shortcoming have been that "assertions of important fact were disbelieved without reason",33 and that an official's reason's statement "simply rejects the substance of an applicant's case without giving reasons which can rationally support that rejection" )4 C Relevance of the Matter For the most part this requirement has been uncontroversial, by reason of the unconfined nature of many Commonwealth statutory discretions. It has been usual to apply the presumption which emphasises the breadth of an unconfined discretion: "Where a power to decide is conferred by statute, a general 31 Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN 13, and Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284. See also Buksh v Minister for Immigration, Local Gover~nt and Ethnic Affairs (1991) 102 ALR 647. Videto v Minister for Immigration and Ethnic Affairs (No 2) (1985) 8 ALN 238. Tagle v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 379, 387; affirmed [1983] FCA 160; (1983) 48 ALR 566. Eg Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 370, and Minister for Aboriginal Affairs v PeJco-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24,31-32 per Gibbs CJ; cfLam v Victorian State Director ofImmigration (1988) 15 ALD 770. Khan v Minister for Immigration and Ethnic Affairs, as quoted in Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586, 597. Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4, 10. Pashmforoosh v Minister for Immigration, Local Governl1U!nt and Ethnic Affairs (1989) 18 ALD77, 80. 1991] Developments under the ADJR Act: The Grounds ofReview 55 discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context ... provides no positive indication of the considerations by reference to which a decision is to be made" .35 D Obligation to Consider The range of matters that an official is bound to consider may not be coextensive with the range which he or she is entitled to consider. An illustration was given in the case largely credited with originating the distinction, Sean Inyestments Pty Ltd v MacKellar, where Deane J held that "Of the five particular matters which the applicant submits were ignored by the Committee and the Minister, only one ... appears to me to be a relevant matter which the Minister was bound to take into account in reaching his decision")6 Whether an obligation exists "is determined by construction of the statute conferring the discretion" and, where no express obligation is imposed, "by implication from the subject matter, scope and purpose of the statute" .37 Contrasting themes illustrate both the difficulty and the ease of establishing that implied statutory obligation. On the one hand are cases which draw on the presumption quoted above concerning the operation of an unconfined discretionary power, and which emphasise the independence of judgment or choice which is available to an administrator. The absence of obligation, which characterises this theme, was expressed by Deane J in Sean Investments: "where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant")8 The foremost example of this theme is Minister for Immigration and Ethnic Affairs v Maitan,39 in which a Full Federal Court held that a Minister, in deciding whether to issue a temporary entry permit, is bound to look only at matters of public or national interest, and though entitled is not bound to look at circumstances personal to an applicant. The contrasting cases, which establish an implied statutory obligation to consider a particular matter, deal just as commonly with unconfined discretionary powers. Although the implication has more often been assumed than justified, it has frequently existed in two general situations: Adverse impact: Where a decision is likely to have a significant impact on the interests of a person, it has generally been assumed that an obligation exists to consider any points raised by that person in a submission to a government agency. Examples of that finding exist, inter alia, in relation O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216per Mason CI, Brennan, Dawson and Gaudron II; see"also R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45. (1981) 38 AIR 363, 375 (emphasis added); affinned (1982) 42 ALR 676. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40 per Mason 1. (1981) 38 AIR 363, 375. (1988) 78 AIR 419, 429; contra Taveli v Minister for Immigration, Local Governml!.nt and Ethnic Affairs (1989) 86 ALR 435,451. Other examples where it was held that there was no implied statutory obligation to consider a matter include: taxation - Clarice & Kann v Depwy Commissioner o/Taxation (Qld) [1983] FCA 294; (1983) 50 ALR 351; repatriation - Bastiani v Repatriation Commission (1985) 60 ALR 557; prosecutorial discretion - Reid v Nairn [1985] FCA 137; (1985) 60 ALR 209; and grant of land rights - R v Toohey; ex parte Meneling Station Ply Ltd [1982] HCA 69; (1982) 158 CLR 327. 56 Federal lAw Review [VOLUME 20 to a decision to deport, to recover an overpayment, to refuse an extension of time to pay tax, and to extinguish a commercial interest.40 There was a clear expression of the obligation by Brennan J in Peko: "the repository of the power ought not to exercise it without regard to the interests his decision is apt to affect".41 Factual accuracy: An official who is considering a matter (whether by choice or obligation) will often be bound to ensure the accuracy of that matter: breach of that obligation may constitute a constructive failure to consider a relevant matter. One expression of the principle, by Lockhart J, was that an official had "a fundamental misconception of what was admitted to be a consideration of significance".42 Another expression, by Mason J, is "that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker", or on "the most recent and accurate information that the Minister has at hand".43 (An erroneous statement of law in a briefing paper can likewise invalidate a decision.44) As that contrast shows, it is this element - establishing the existence of an obligation to consider - that has assumed centre stage in the operation of this ground. It is, however, a somewhat puzzling requirement, that in some circumstances could produce eccentric results. Murphyores Incorporated Pty Ltd v Commonwealth 45 provides an example. There the High Court held that the discretion to issue an export permit was unconfined, and that no general criteria could be inferred to limit the range of considerations to which the Minister could have regard. Essentially, a permit could be refused for any governmental reason. Conversely, if the breadth of the statutory discretion implied that no obligation existed to consider any matter apart from the public interest, a permit could be refused for no reason, or refused at least without consideration of the grounds listed in a person's permit application. This result, apart from being incompatible with modem developments that emphasise the importance of reasoned decisions, would also undermine what was said in Murphyores to be the 41 42 .:B 44 4S For instances see: grant of land rights - Minister for Aboriginal Affairs v Pelco-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; deportation - Minister for Immigration and Ethnic Affairs v Tagle [1983] FCA 160; (1983) 48 ALR 566, Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284; taxation - ARM Constructions Ply Ltd v Deputy Commissioner of Taxation (NSW) (1986) 65 ALR 343; compensation - Baur v Australian Telecommunications Commission (1987) 75 ALR 504; visa entry - Azemoudeh v Minister for Immigration and Ethnic Affairs (1985) 8 ALD 281; and nursing home fee detennination - Alexandra Private GerilJtric Hospital Ply Ltd v Blewett (1985) 68 ALR 222. As to whether an obligation may exist to consider humanitarian principles, see the cases discussed by P Bayne, "Administrative law, human rights and international humanitarian law" (1990) 64 AU 203. Minister for AborigilUll Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 56. Laremont v Minister for Immigration and Ethnic Affairs (1985) 9 ALN 13. Minister for AborigilUll Affairs v Pelco-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 44-45. See also, eg SezdlTmezoglu v Acting Minister for Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561. Haj-IsmlJil v Minister for Immigration and Ethnic Affairs [1981] FCA 124; (1981) 36 ALR 516. (1976) 136 CLR 1. 1991] Developments under the ADJR Act: The Grounds ofReview 57 minimal stipulation, that the Minister was under "a duty to determine any application that is made".46 The sensible alternative may be to dispense with implied statutory obligation to consider a matter as a separate element of the ground. The obligation instead would be for an official "to take into consideration all matters relevant to the decision to be made which, at the time the decision is to be made, are before him or her, whether actually ... or constructively".47 On grounds of principle too it seems plausible that one of the basic obligations which the administration should be expected to discharge is to consider what a person has to say before adverse action is taken. That is not to say that a condition of "reasonableness" should not be developed to temper the potential burden of this obligation in cases where a great many submissions have been made on the same issue. Other familiar principles would also limit the potential burden of the obligation - for example, that a decision maker is not usually required to read beyond an adequate summary or briefing paper, and that a judicial review court will not ordinarily question the way in which different considemtions have been weighed or balanced one against another. 3 UNREASONABLENESS48 An unpredictable development in ADJR jurisprudence was the resurrection of "unreasonableness" as a ground of review. Its inclusion in s 5 of the Act settled doubt that it was an independent ground of challenge,49 but Lord Greene's warning that the right case "would require something overwhelming"50 was verified by a dearth of cases until 1985. 51 The ground has since been applied frequently, to a rich diversity of administrative defects. What explains that change? Falling standards in administration? Judicial intervention? Or a changed perception of what is unreasonable? There is scant judicial exegesis to provide an answer. 52 The more apparent tendency, indeed, is for decisions to be declared unreasonable without elaboration of guiding principles. A recent illustration is Chan Yee Kin v Minister for Immigration and Ethnic Affairs,53 in which the High Court held that the Deparunent of Immigration was acting unreasonably. The Department, in deciding whether a person was a refugee for the purpose of preferential migrant entry to Australia (s 6A(l)(c) of the Migration Act 1958 (eth)), had wrongly and too narrowly interpreted the concept 46 4) ~ 51 52 53 Ibid 211 per Mason J. CfMinister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419,429, where it was said (per Beaumont and Gummow JJ) that failure to consider a matter "may amount to a failure to address the real question required by the legislation to be addressed". Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN 13. The ground is dermed thus in s 5(2)(g) of the ADJR Act: "an exercise of power that is so unreasonable that no reasonable person could have so exercised the power". Eg Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142. Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223,230. Eg Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 65 ALR 549, rmding only three previous cases, and referring to the "paucity of judicial exegesis." (560). Though cf the discussion in Prasad, id, and Taveli v Minister for Immigration, Local Gover~nt and Ethnic Affairs [1989] HCA 62; (1989) 86 ALR 435. (1989) 169 CLR 379. 58 Federal Law Review [VOLUME 20 of "refugee" as used in the relevant international convention. The explanation as to why that error should be classified under the ADJR Act as "unreasonable" was no more intensive than the following conclusion reached by Toohey J: "If the [proper] test ... had been applied to the appellant, a determination refusing him refugee status is, in all the circumstances, one that could not reasonably have been made" .54 Drawing from the case a guiding principle as to what will constitute unreasonableness is not easy. Is it unreasonable within the scope of s 5(2)(g) to apply, from a non-statutory source, a wrong and inadmissable test? Or to deprive a person unfairly of an opportunity which the law has offered to him or her? Or to evaluate the facts in a way which lacks plausible justification?55 There are probably two factors that explain the resurgence of this ground. Lord Diplock's famous and brief encapsulation in CCSU of the common law grounds of review as "illegality, procedural impropriety, and irrationality (or Wednesbury unreasonableness)"56 invited attention to the utility of each of those concepts as broad or umbrella grounds that could encompass a great deal of more specific errors. Use of those concepts can, moreover, avoid the need to grapple with some of the subtlety and technicality that has become the penumbra of other grounds. The point made initially by Lord Greene, that most examples of unreasonableness could as suitably be ascribed to another ground, probably remains as true of recent developments. A second and related dimension is the inherent fluidity of this ground - a fluidity that enables it to be used beyond the contours of more established grounds. In that way, "unreasonableness" has an important role to play, in suppressing any unfair or manipulative use of conventional limitations on judicial review. It would be too creative to claim that the Australian case law has deliberately developed along the latter path. There is an apparent lack of direction, as claimed above. Nevertheless, most of the recent applications of the ground can be portrayed as a counterbalance to a more standard principle of administrative law. Consistently with the theme introduced earlier in this paper, that inherent contrast offers the judiciary a choice between standard principle - the path of judicial restraint - or the qualification of reasonableness - the artery of intervention. Reasoned Decision Making Public Service Board of NSW v Osmond57 established firmly that there is no general rule of the common law or principle of natural justice which requires reasons to be given for an administrative decision. Lawyers are keenly aware, however, of the importance of reasons both for administrative fairness and for judicial review. Attempts were consequently made in some earlier cases to warn that a court may infer from the failure of an official to state reasons "that he has A 54 55 56 57 Ibid 4m. The latter explanation has been adopted in Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1989] HCA 62; (1990) 21 ALD 139, and Federal Commissioner o/Taxation v McCabe [1990] FCA 389; (1990) 21 ALD 740. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. For a simplication of the grounds along similar lines in Australia, see the judgment of Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. (1986) 159 CLR 656. 1991] Developments under the ADJR Act: The Grounds ofReview 59 no good reason and that he is not using the power given by Parliament to carry out its intentions".58 But these warnings were hollow, rarely acted upon, and served to signal the court's own apprehension. "Unreasonableness" provides a more suitable and confident foundation on which to stimulate the administration to explain the basis for a decision. Recent English and Australian cases illustrate that the absence of reasons to support a curious or inexplicable feature of a decision will constitute unreasonable behaviour. Different ways in which this has been put are that a court may intervene if a decision is "devoid of any plausible justification",59 the decision "could not be justified on any reasonable ground" ,60 that an official "simply rejects the substance of an applicant's case without giving reasons which can rationally support that rejection",61 or that there is "an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker's own criteria".62 B Evidentiary Weighting A standard principle of Australian law is that an insufficiency of evidence to support a finding of primary fact is not an error of law. 63 To similar effect is the administrative law principle, that a court is not concerned to examine the weight attached to a relevant matter; that is an aspect of the merits of a decision. Merits review is, however, confined to a reasonably narrow band of decisions, and in the remaining territory there is a concern that arbitrary action could be shielded by a perfunctory or ritual declaration by an administrator that a matter was considered. That danger is counteracted with "unreasonableness" which, as Mason J explained, can be employed to "set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance".64 Erroneous Factual Determination Justice Brennan stated the orthodox principle in unequivocal terms: "There is no error of law simply in making a wrong finding of fact" .65 While there are many cases to confirm that limitation, there are also many that qualify it. For reasons that are understandable, judges have often shown unease when faced with a clear error, that could only be described as factual, but which alone had the potential to steer a decision down one path rather than another. A good example is GTE (Australia) Pty Ltd v Brown. 66 A decision to impose an C 58 59 (j) 61 Padfield v Minister for Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997, 1053-4 per Lord Pearce. Bromley London Borough City Council v Greater London Council [1983] 1 AC 768, 821 per Lord Diplock. Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305,323 per Menzies J. Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 80 per the Full Court. Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435, 453 per Wilcox J. Eg Azzopardi v Tasman VEB Industries Ltd (1985) 4 NSWLR 139, and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,356 per Mason CJ. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41. Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77. (1986) 76 ALR 221. 60 Federal Law Review [VOLUME 20 anti-dumping duty on imported light bulbs was based in part on a misreading by the Department of a price list that was written in a foreign language. After conceding that the error could be described as an erroneous factual decision, Burchett J concluded understandably that the decision was also "manifestly unreasonable": "The fact was that elaborate calculations were made upon basic figures which could only have been arrived at by a process of guess work, or by complete inadvertence to relevant factors" .67 It has been accepted accordingly that in limited circumstances an error of fact may constitute a breach of a ground of review. In Australian Broadcasting Tribunal v Bond,68 Mason CJ explained that the two principal grounds for this purpose were s 5(1)(t), error of law (where there is an absence of evidence to support a finding of fact) and ss 5(1)(h) and 5(3)(a), no evidence (proof of the non-existence of a fact critical to the making of a decision). Other grounds have been employed as well. In some cases the "no probative evidence" rule has been classified as a breach of natural justice.69 Consideration of an irrelevant matter (s 5(2)(a)) will occur by "taking into account ... a fact found unreasonably"70 or "proceeding upon an erroneous premise on a fundamental matter") 1 Likewise, there will be a failure to consider a relevant matter (s 5(2)(b)) where a decision maker proceeds upon "a fundamental misconception of what is admitted to be a consideration of significance" or fails to act upon "the most recent and accurate infonnation that the [decision maker] has at hand".72 There are a number of dangers inherent in that exercise - that the choice of ground to review a serious factual error will become a random exercise, that the disguised review of factual errors will undermine the legality\merits distinction inherent in judicial review, and that the recurring distinction between simple and more fundamental factual errors will overload each of the grounds with unnecessary subtlety and technicality. Those problems will endure, but could arguably be controlled if (as in cases like GTE) review for error of fact was more frankly exposed by the use of "unreasonableness" as the preferred context for review. 73 The explicit requirement of that ground - that the exercise of power must lack plausible justification - would make it easier to confine review for errors of fact to exceptional cases that portrayed a fundamentally mistaken exercise of power - in the same way, for example, that "unreasonableness" review of evidentiary weighting is confined to exceptional cases in contrast with the more standard principle that weighting is typically a merits function. Ibid 249. [1990] HCA 33; (1990) 170 CLR 321, 355. Eg Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 688 (per Deane J), and see also the discussion by Deane J in Bond [1990] HCA 33; (1990) 170 CLR 321, 366. Note, however, that Mason CJ in Bond used the concepts "absence of evidence" and "no probative evidence" interchangeably (ibid 356, 359), and commented (ibid 357) that the approach in Pochi, id, and English cases cited therein had not so far been accepted by the High Court. Minister for Immigration, Local Govern~nt and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 80 (per the Full Court) - a statement described as "unobjectionable" by Mason CJ in Bond [1990] HCA 33; (1990) 170 CLR 321, 359. Ahrs v Minister for Immigration, Local Govern~nt and Ethnic Affairs (1988) 16 ALD 688, 694 (per Lee J). Respectively, from Laremont and Peko, quoted in supra nn 42 and 43. For recent illustrations of this approach see Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1989] HCA 62; (1990) 21 ALD 139, and Federal Commissioner of Taxation v McCabe [1990] FCA 389; (1990) 21 ALD 740. 71 7l 73 1991] Developments under the ADJR Act: The Grounds ofReview 61 D Duty ofInquiry Reference was made above to the standard principle that a decision maker is not ordinarily under a legal duty to assist a person to make the best possible application, to initiate enquiries, or to advise a person of the deficiencies of a submission. "Unreasonableness" was the ground chosen by Wilcox J to express the counterbalance, that a decision maker should initiate inquiries "where it is obvious that material is readily available which is centrally relevant to the decision to be made".74 E Legal Authority The foundation principle of public law is that the Executive must have statutory or common law authority for its actions, particularly actions that adversely affect individual interests. Administrative law adequately controls the exercise of that authority, but is more restricted in controlling the initial decision to invoke the authority (for example, the decision to invoke the authority could be challenged on grounds of good faith, or propriety of purpose). The restricted opportunity for challenge could endanger individual interests in circumstances where the Executive could rely alternatively on a range of different legal powers to achieve an objective. If those alternatives embody different penalties or protections, the choice of alternative could lead to arbitrary or excessive action. A case which used ttunreasonablenesstt to control that choice was Donnelly v Australian Telecommunications Commission. 75 Telecom wished to compel the return to work of an employee who it believed was no longer unwell and entitled to compensation. One option was for Telecom to appeal under the framework of the Commonwealth compensation legislation; the other was for Telecom to issue a return to work directive under Telecom's parent Act. The Court held that it was unreasonable to adopt the latter course. An appropriate synthesis of the result might be that it is unreasonable to adopt a course of action which in itself is lawful, where the same objective could be achieved by an alternative and more regular course of action that has a less adverse impact on individual interests. The English case of Wheeler v Leicester City Council also illustrates this principle.76 The Council had refused the use of its sporting grounds to a football club which had not taken sufficient steps to restrain some of its players from joining a football tour of South Africa. The Lords held that the Council, though acting for a relevant purpose in seeking to suppress racism, ttcould not properly seek to use its statutory powers of management ... for the purposes of punishing the club when the club had done no wrong tt .7 7 By implication, the Council should have used a different form of action (such as political action) to achieve its objective. F Inconsistency Administrative law already contains a number of grounds that compel administrators to consider the merits of each case, and not to be deflected from that course by the desire to be consistent, either in decision making or in the 74 75 76 71 In Prasad; see supra text at n 24. [1984] FCA 198; (1984) 6 ALD 134. [1985] 2 All E R 1107. Ibid 1113 per Lord Templeman. 62 Federal Law Review [VOLUME 20 application of government policies. The point has even been made directly, that it is unlawful to pursue consistency in decision making as a goal unto itself, for example in deporting a person on the basis that another person was deported in similar circumstances.78 The countervailing principle is equally cogent: "inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice" .79 Ironically, however, inconsistency and discrimination are not independent grounds for judicial review. "Unreasonableness" might again be the preferable ground, as it can steer a middle path by confining judicial review to inconsistency which invites but defies plausible explanation. There are two recent Australian examples: Sunshine Coast Broadcasters Ltd v Duncan,80 in which the Minister acted unlawfully, by "applying a guideline against one and not against another [comparable licence applicant] without any stated or rational justification for that discrimination"; and Alexandra Private Geriatric Hospital Pty Ltd v Blewett, 81 involving the application of a policy concerning nursing home fee determination that had a discriminatory effect as between different classes of people, for which there was no justification on the evidence. G Harsh Impact Although judicial review cannot address the merits of a decision, there may be a case for invalidation of a decision where it has an impact on a person that seems particularly harsh or objectionable. One suspects, indeed, that that has occurred in cases where it is held, for example, that an official did not give proper, realistic or genuine consideration to the merits of a case. 82 It may be appropriate to use "unreasonableness" in these circumstances, at least to expose more frankly any potential clash of executive and judicial reasoning. Some support for this approach exists. Justice Wilcox in Taveli v Minister for Immigration, Local Government and Ethnic Affairs 83 referred to "unreasonableness" in commenting, "There may be cases - although I think that they are likely to be rare - in which all of the factors germane to a particular decision point in one direction". Another example is Edelsten v Wilcox 84 in which the Court held unreasonable an exercise of statutory power by the Taxation Office, requiring the Health Insurance Commission to pay to it all Medibank payments owing to Dr Edelsten, amounting nearly to the entirety of his income. The Court commented that the statutory power was not to be used by the Taxation Office as "an instrument of oppression" or "for the infliction of punishment". Perhaps too this is the rationale of Chan fee Kin, referred to above: as Toohey J described the Department of Immigration's error, "Given the 78 ~ 81 82 83 M Eg Barbaro (Vincenzo) v Minister for Immigration and Ethnic Affairs [1982] FCA 269; (1982) 6 ALD 24, and Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639. See also ADJR ss 5(2)(t) and (e). Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 639 per Brennan I. (1988) 83 ALR 121 (the ground applied by the Court was "abuse of power", s 5(2)(j». (1985) 68 ALR 222. Eg Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 seems a clear example. (1989) 86 ALR 435, 453. (1988) 83 ALR 99. 1991] Developments under the ADJR Act: The Grounds ofReview 63 circumstances of that discrimination [against the plaintiff in China], no reasonable delegate could have concluded that it did not amount to persecution".85 4 BREACH OF THE DOCTRINE OF NATURAL mSTICE86 The evolution of the doctrine of natural justice has been a journey in fluctuation, typified by the regular pitch of basic principles from one leaning to another. The implication principle was once supplanted by the requirement for a judicial duty, itself displaced by the reinstatement of the implication principle in Ridge v Baldwin;87 there was a hybrid phase - natural justice and acting fairly ultimately unified,88 but now transformed as the doctrine ofproceduml faimess;89 the content requirements - traditionally the hearing and bias rules - grew to a trinity to include the probative evidence rule,9o and may develop further to establish a distinct duty to conduct an adequate inquiry;91 and a boundary line firmly imposed - non-application of the doctrine to deportation - was soon shifted, accelerating the dramatic growth in immigration litigation.92 That instability reflects the basic tensions which inevitably arise in the application of the doctrine to the executive arm of government. There is the strong attachment, on the one hand, which legal tradition has persistently shown for the notion that decision making which affects the rights of people should be reached by a process that contains minimal hearing and bias requirements. Commencing with Cooper v Wandsworth District Board of Works 93 that principle was declared to be "founded upon the plainest principles of justice"(Willes J), preserved by "the justice of the common law [supplying] the omission of the legislature"(Byles J). The justification for a vigilant application of the doctrine was also eloquently put by Megarry J: "As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change".94 On the other hand weighs the practical reality, again captured in a dictum of Megarry V-C, that "The concepts of natural justice and the duty to be fair must 85 86 ffl 88 ~ 91 92 [1989] HCA 62; (1989) 169 CLR 379, 408; see supra n 53. This ground is defined thus in s 5(1)(a) of the ADJR Act: "that a breach of the roles of natural justice occurred in connection with the making of the decision." [1963] UKHL 2; [1964] AC 40. Eg Dunlop 11 Woollahra Municipal Council [1975)2 NSWLR 446; not followed in Gardner v Dairy Industry Authority of New South Wales (1977) 1 NSWLR 505, and White v Ryde Municipal Council [1977] 2 NSWLR 909. "Procedural fairness" is the tenn used most frequently by the federal courts since its adoption by Mason I in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666. Eg Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 t 45-46 per Mason It Village Roadshow Corporation Ltd v Sheehan (1987) 75 ALR 539 t and Century Metals and Mining N L 11 Yeomans [1989] FCA 273; (1989) 100 ALR 383. CfSalemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 t and Kioa v West [1985] HCA 81; (1985) 159 CLR 550. Migration matters constituted 50% of ADJR Act applications in 1990: Administrative Review Councilt Fifteenth Annual Report (1990-91). [1863] EngR 424; (1863) 14 CB (NS) 180t 143 ER 414 t 418 per Willes J; 420 per Byles J. John 11 Rees [1969] 2 All E R 274 t 309. 64 Federal Law Review [VOLUME 20 not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens".95 The same warning was made by Brennan J: "Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed" .96 A traditional way of resolving that tension was to limit the range of decisions to which the natural justice obligation would apply. The threshold requirement was an affected right, interest, or expectation. By contrast, there was ordinarily no obligation where a person was an applicant for but not the holder of an interest, or was possessed of a "hope" but not an "expectation", or was not affected individually but only as a member of the public.97 Applying those distinctions was never an easy exercise. The concept of "right, interest or expectation" has a high subjective element. There is difficulty too in applying a concise formula to an infinite range of administrative circumstances. Not surprisingly, the significant increase in administrative law litigation that has marked the operation of the ADJR Act has served to confuse more than to clarify the basic distinctions and tensions. The uncertainty has stemmed mainly from migration litigation, but it has not been confined to that area. Accordingly, the following analysis of recent natural justice cases commences with an examination of the central migration case (Kioa v West), and concludes with some suggestions for the development of a new formula or theory to determine when a natural justice obligation should apply. A subsidiary theme that is discussed, along the lines of the earlier part of this paper, is the emergence of ambiguous standards that make judicial restraint or intervention a more discretionary option. A Kioa v West Prior to Kioa the general principle was that a prohibited immigrant was not entitled to a hearing before a deportation order was made. 98 The two principal reasons were that such a person, who was unlawfully in Australia, had no right or expectation to protect, and the Minister's power to deport was conferred by an unconfined statutory discretion. K ioa overturned that principle, relying principally on the slender argument that the introduction by s 13 of the ADJR Act of the procedural obligation to state the reasons for a decision transformed the character of decisions to be made under the Migration Act 1958 (Cth). The formal decision in Kioa was that the Minister for Immigration was under an obligation to observe natural justice when making a decision to deport Mr Kioa, who had unlawfully overstayed at the expiration of an entry permit to study in Australia. There were significant differences among the judges concerning the legal basis for the hearing obligation and the form that it would take in any deportation decision. Three approaches in particular are worth noting: 99 99 McInnes" Onslow Fane [1978] 3 All E R 211,223. Kioa " West [1985] HCA 81; (1985) 159 CLR 550, 628-629. Eg McInnes" Onslow Fane [1978] 3 All E R 211. Eg Salemi" MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396, and R " MacKellar; ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461. There was only a brief elaboration of principles by Wilson I, but the approach was broadly similar to that of Deane I. Gibbs CI dissented. 1991] Developments under the ADJR Act: The Grounds ofReview 65 Common law implication: Justice Deane applied the traditional theory, that an obligation to observe natural justice will be implied, in the absence of any clear and contrary legislative intent, in respect of any decision that affects a right, interest or status of a person - in this case, the right of a potential deportee to the protection of the Australian legal system, while resident in Australia; Statutory implication: Justice Brennan adopted an approach that could be described as theoretically sound, but which has not found much support in other judgments - that natural justice is not a free standing common law right, but a statutory implication that is more likely to be made where (as with a deportation decision) an exercise of a statutory power "is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public"; 100 "Universal" implication: The approach of Mason J, which is now the approach most commonly cited, is to dispense with separate enquiries into whether there is an implied obligation to observe natuml justice, and if so the content of that obligation, and to examine instead what is required to ensure "procedural fairness" in the circumstances of the particular case. That is, one starts from the position that there is a potential application of natural justice to all administrative decision making. In many situations the choice of theory would make no practical difference for example, in the areas of traditional application such as deprivation of liberty, property or occupation. But in many other instances there might be a different practical result, both as to the existence and as to the nature of any hearing obligation. Kioa itself illustrates the differences. Justice Mason recognised that the obligation of procedural fairness would attach in principle to all deportation decisions, but indicated further that a distinct hearing obligation would not ordinarily arise in the standard case where the only reason for making an order is that a person is a prohibited immigrant. Nor would there be any general obligation to allow a person to respond to material on file described as "policy, comment and undisputed statements of fact" .101 The obligations principally arise where deportation is based on a fact personal to the deportee, such as his or her conduct, health or associations, particularly if that information is obtained from a source other than the deportee. On that view, Mason J held that the breach of natural justice consisted in the failure of the Department to allow the Kioas a response to an "extremely prejudicial" sentence in an internal briefing paper which expressed concern at Mr Kioa's active involvement with other prohibited immigrants. Both Deane and Brennan JJ held that a natural justice obligation attaches generally to deportation decisions, including to decisions where the sole basis for deportation is a person's status as a prohibited immigrant. The disclosure and hearing obligations are also more extensive, more nearly approximating the traditional principle that a person is entitled to know the case sought to be made 100 101 [1985] HCA 81; (1985) 159 CLR 550,619. Ibid 588. 66 Federal Law Review [VOLUME 20 against him and to be given an opportunity of replying to it. 102 Justice Deane held, for example, that a person would be entitled to exercise his or her "ordinary right to a prior and adequate opportunity of being heard and of seeking to answer or avoid the reasons which appear to favour his deportation.... he might wish to challenge the wisdom or justice of the administrative policy in pursuance of which it is proposed to order that he be deported".103 Justice Brennan likewise expressed the obligation in general but more limited terms: "an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made".1 04 The practical difference among the three approaches was illustrated also in Kioa by the different way in which each judge dealt with the related issue of whether natural justice obliged the Department to provide a hearing to an Australian-born daughter of the Kioas who would be affected by the deportation of her parents. Justice Deane held that she had no separate right to be heard, as the decision did not affect any interest or expectation which she possessed. Justice Brennan assumed that she was entitled to be heard, and had been through the representations of her father. Justice Mason held that, in the circumstances of this case, procedural fairness did not require that a separate hearing be given to a 10 month old child. Another example of where the result might differ would be in a decision refusing an application, such as an application for employment or a grant. A traditional answer is to say that there is no common law implication of natural justice, as there is yet no legal interest or expectation to be protected, but a mere hope or opportunity.105 A plausible contrary argument could be made, on the approach of Brennan J, that the decision not to accept a person's application was apt to have a discrete and adverse effect on their particular interests: from that basis a statutory implication would arise, that natural justice be observed in respect of the decision on each application. Equally, to apply Mason J's case-bycase approach, disclosure or a hearing may be required in respect of an irregular or abnormal aspect of any decision - such as a damaging allegation made privately in a referee's report. In either of those ways natural justice could also be applied routinely to high volume areas of administration that affect individual interests discretely, and which rely on occasion on adverse or critical personal judgments being formed - such as taxation administration and assessment, grant allocation, educational assessment, and personnel management. By that reasoning the range of decisions to which natural justice now applies would have been extended significantly. B Prejudicial Opinions and Evaluations It was symptomatic perhaps of the expanded territory to which natural justice could now apply that a reduced content was envisaged for some purposes. Justice Brennan spoke even of a somewhat vaporous right, where the practical content 102 103 104 IQ5 Twist v Council of Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106, 109-110. Kioa v West [1985] HCA 81; (1985) 159 CLR 550,663. Ibid 380. Eg McInnes v Onslow Fane [1978]3 All E R 211, FAllnsurances Ltd v Winneke (1982) 151 CLR 363, 361 per Mason I, 378 per Aickin I, and Cole v Cunningham (1983) 49 ALR 123, 128. Although some judges will interpret the concept of interest more liberally than others: cfeg Gibbs CJ and Deane J in Kioa v West id. 1991] Developments under the ADJR Act: The Grounds ofReview tt · 67 could be reduced in an exceptional case to "nothingness 106 Justice Mason, as explained above, contracted the obligation in deportation cases from the traditional standard (a right to know the "case to be met") to a more limited obligation to be told of a prejudicial opinion or allegation that was personal to an individual. It is that approach which has prevailed in subsequent litigation though using, on occasions, the standard defined by Brennan J, that would require disclosure of adverse information that is "credible, relevant and significant". From this development there has not come, however, a greater level of certainty. A contrasting principle which has frequently been expressed is that a Department is not obliged to disclose adverse or prejudicial material that is better described as an official's "evaluation of the material that an applicant puts forward".l07 Equally, "Procedural fairness does not require that every document that may be regarded as adverse to an applicant which is on a departmental file must be disclosed to the applicant.... A departmental file is the repository of all documents relating to a particular matter. Not all those documents need be disclosed to an applicant".l08 The boundary along which that line has been drawn in the cases is not an easy one to chart. It was held in Taveli, for example, that a prohibited immigrant should have been given the opportunity to respond to the allegation, that she had "obtained benefits under Medicare" .1 09 In Sinnathamby, by contrast, it was merely an evaluation or description of facts made known by a person to the Department to say that he had entered Australia by "subterfuge" by arriving as a transit passenger.110 A related and ambiguous standard controls the steps that an official must take to disavow any reliance on adverse information that is contained on a file. The practical significance of this issue is potentially great, particularly in areas concerned with the enforcement or administration of the law. Departmental files are apt to contain a large volume of prejudicial material that was collected at the investigation stage, but which is not relied on at the decision stage either because it was regarded as irrelevant or because it could not be substantiated. In some cases it has been accepted that an express disavowal will obviate the need to disclose that information. 1l1 In other cases an express disavowal was inadequate, particularly where the information was highly prejudicial and "the potential of influence at a subconscious level remains".112 Which side of the line a case falls on "must always be a question of fact and degree".l13 One extreme of 106 Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 615. Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 10 ALN 86. See also Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 102 ALR 339, 343, 348. Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 78-9 (judgment of the Full Court). Taveli v Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435,447; on appeal[1990] FCA 169; , (1990) 94 ALR 177. Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 10 ALN 86. Kioa v West [1985] HCA 81; (1985) 159 CLR 550,588 per Mason J. Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550, 552 per M L Foster J. See also Brennan J in Kioa: "It is not sufficient for the repository of the power to endeavour to shut infonnation of that kind out of his mind and to reach a decision without reference to it" «1985) [1985] HCA 81; 159 CLR 550, 629). Youssef, ibid 551. 107 1~ 100 110 111 112 113 68 Federal Law Review [VOLUME 20 the principle was illustrated by the decision at first instance in Conyngham v Minister for Immigration and Ethnic Affairs) 14 Justice Wilcox held that there was a denial of natural justice in the failure to disclose to the plaintiff an allegation of impropriety made about him, even though the allegation was never made known to the decision maker (the Minister) and was rejected by the Committee whose recommendation had been accepted by the Minister: "It is not enough that a decision-maker endeavour to shut damaging information out of his mind. There remains a real risk of prejudice, even unconscious prejudice ...which may permeate that recommendation [and] flow through into the decision of the Minister ... [T]he mere possibility is enough".1 15 (An opposing argument could state, ironically, that if an official is prone to that kind of mental contamination, it is doubtful whether a hearing would serve any useful purpose!) Other Difficulties Concerning the Implication ofNatural Justice The main residual difficulty concerning the implication of natural justice has been the tendency to apply uncritically the superficial test, that "there is a common law duty to act fairly ... in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention".1 16 The argument that is developed later in this paper is that the affect of a decision on a person's interest is only one of many factors that is relevant to deciding whether a natural justice obligation attaches to the decision. A case which illustrates the difficulty of focussing too narrowly on only one factor is Peko-Wallsend Ltd v Minister for Arts, Heritage and Environment.! 17 At first instance, the Federal Court held that the Federal Cabinet was required to provide a hearing to Peko, before making an executive or prerogative decision to nominate Kakadu Stage 2 for inclusion in the World Heritage List. The reason given by the Court was that the Cabinet decision affected private proprietary interests and commercial mining opportunities of the company. The Court's ruling was reversed by the Full Court,118 on the basis that the Cabinet's decision was not justiciable. Elements in that conclusion were that the decision was made by Cabinet, the decision involved complex policy considerations, and the decision did not have a direct and immediate effect on Peko's interests. Neither approach is particularly satisfactory. The trial ruling was unrealistic in its narrow concentration on Peko's interest, and its failure to give proper significance to other relevant factors. The Full Court's approach of relating those factors primarily to the difficult, even chameleon concept of justiciability, was also uneasy and probably unhelpful. No firm answer could be given by the Full Court, for example, on what should arguably be the least complex of the justiciability issues, namely the justiciability of Cabinet decisions. An alternative approach would have been to structure the different factors as relevant elements that may determine whether there is an obligation to observe natural justice. 114 115 116 C 117 118 (1986) 68 ALR 423. The decision was reversed by the Full Court, but not on the point dealt with in the text: (1986) 68 AIR 441. (1968) 68 AIR 423, 432. Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 per Mason J. (1986) 70 ALR 523. Minister for Arts, Heritage and Environment 11 Peko-Wallsend Ltd (1987) 75 ALR 218. 1991] Developments under the ADJR Act: The Grounds ofReview 69 Another case which shows the same formula problem in reverse is [donz Pty Ltd v National Capital Development Commission.l 19 There it was held that the Commission, in granting approval for the redevelopment of a commercial block, was not obliged to provide a hearing to an adjoining landholder which had a motel on its block. The principal reason given by the Court was that the Commission's decision did not affect any right or interest of that landholder. A difficulty with that conclusion is that Idonz had led evidence to show that the construction of an adjoining office block would have a significant commercial, physical and aesthetic effect on the adjacent motel. The same conclusion might have been reached more comfortably by conceding that a proprietary interest was affected, but justifying the exclusion of natural justice by reference to other factors (such as the opportunities otherwise provided by the relevant statutory scheme for the property interests of Idonz to gain adequate consideration). The same emphasis on individual rights theory was evident in a recent High Court decision, Haoucher v Minister for Immigration and Ethnic Affairs)20 In issue was whether the Minister was obliged by natural justice to provide a hearing to Haoucher before deciding to reject a recommendation of the Administrative Appeals Tribunal that he not be deported. A Ministerial policy provided that an AAT recommendation would be rejected only if there were "exceptional circumstances" and "strong evidence" to justify rejection. Much of the discussion in the case was given over to whether Haoucher had an entitlement to natural justice arising from a legitimate expectation created by the Minister's policy and the favourable AAT recommendation. Arguably this was a superfluous issue. It presupposes in the first instance that the Minister and the Tribunal were both making separate decisions. Rather, there were two different stages of a single decision - a decision to deport, made after a recommendation was received from another body.l21 Haoucher, as a person facing deportation, already had an interest (of a kind identified earlier in Kioa) that would weigh in favour of natural justice applying before a final deportation decision was made. Further, the usual entitlement is for a hearing at some stage before the decision is finalised; a separate hearing at each stage is required only if there is the consideration of facts or criteria that were not the subject of a hearing at an earlier stage. 122 On this approach, the question was not whether Haoucher had a legitimate expectation, but whether the policy criteria being applied by the Minister raised new issues that had not been addressed in the hearing already provided to Haoucher by the Tribunal. 123 Other factors might also be relevant such as the criteria for the ultimate decision (incorporating at least a strong element of subjective political judgment), and the statutory framework for the 119 121> 121 122 123 (1986) 67 ALR 46 (Full Federal Court), and (1985) 9 ALN N52 (Neaves 1). [1990] HCA 22; (1990) 169 CLR 648. Though separate stages of a single decision for the purposes of natural justice theory, the stages were nevertheless capable of being treated as separate "decisions" for the purposes of ss 3 and 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), in the sense that either stage could be the subject of a separate judicial review action: see Bond v Australian BrOtJdcasting Tribunal [1990] HCA 33; (1990) 170 CLR 321. Eg Calvin v Carr [1979] UKPC 1; [1980] AC 574, Bushell v Secretary 0/ State/or the Environment [1980] UKHL 1; [1981] AC 75, and South Australia v O'SMa [1987] HCA 39; (1987) 163 CLR 378. This issue was addressed by Deane and Toohey JJ, and was the issue on which Dawson and Gaudron dissented. n 70 FederallAw Review [VOLUME 20 decision (incorporating political accountability as a central feature of the scheme). More emphasis was given to those other factors in South Australia v O'Shea,l24 another recent case that was mentioned only in passing in Haoucher, but which seems hard to distinguish. In O'Shea the High Court held by a four/one majority that there was no obligation on the Governor of South Australia to provide a hearing to O'Shea in making a decision not to release him from prison, contrary to a recommendation for release made by the Parole Board. While again there was no theory consistently expounded by the Court,l2S a far more explicit reliance was placed on other factors. Chief Justice Mason held that O'Shea had already had an adequate opportunity to present submissions to the Parole Board on the issue which would be germane to the Governor's decision (whether it was in the public interest for O'Shea to be released). Justice Brennan held that there did not have to be a further hearing on that matter of policy or public interest; it was a matter for political judgment and responsibility. Justices Wilson and Toohey referred, in addition to those factors, to the unfettered nature of the Governor's discretion, and to the involvement of the Cabinet in the Governor's decision. Justice Deane dissented, emphasising more narrowly that the decision affected an interest (personal liberty) of O'Shea. D Developing a Different Theoretical Basis for Implying Natural Justice An option at one end of the spectrum has always been to treat the obligation of procedural fairness as attaching universally to all decisions, and to concentrate instead on the practical content of that obligation in any particular instance. This option, to which the law has seemingly been moving since Kioa, was described by Deane J in Haoucher as "conceptually more satisfying".l26 More commonly, however, it has been acknowledged (per Wilcox J) that "the law has not yet reached the stage of applying the obligation of natural justice to every decision which disadvantages individuals" .1 27 Government would arguably become unworkable if the obligation was treated as one of universal application. Typical and understandable circumstances in which the doctrine does not ordinarily apply are in policy making, or where alternative hearing rights exist. Bearing in mind too that inadequate compliance with the obligation will spell invalidity for a decision, it is hazardous to warn that the obligation should be assumed but the practical requirement must await individual determination on the facts of each case: administrators are in need of better judicial guidance as to what is required of them and when. There are, nevertheless, some aspects of the doctrine which it may be sensible to regard as obligations of universal application. There is the obligation, crystallised in Kioa and subsequent cases, to disclose any highly prejudicial item of personal information that is likely to constitute a consideration at the basis of 124 115 126 lZ7 [1987] HCA 39; (1987) 163 CLR 378. Eg differences were expressed on whether there is a right to be heard on matters of policy (cf Mason CJ (ibid 388-389) and Brennan J (ibid 409-410), on whether the decision affected an interest of O'Shea (cfWilson and Toohey JJ (ibid 402), and Deane 1) (ibid 418), and on the relevance of Cabinet's involvement in the decision (cfMason CJ (ibid 387-388) and Wilson and Toohey JJ (ibid 402-403). [1990] HCA 22; (1990) 169 CLR 648,653. See also Century Metals and Mining N L v Yeomans [1989] FCA 273; (1989) 100 ALR 383,409 (Full Court). Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 AIR 218,251. 1991] Developments under the ADJR Act: The Grounds ofReview 71 a decision. Although some criticism was made above of the ambiguity of that standard, the thrust of the principle is clearly sensible and would enhance the integrity of the administrative process. The law seems already to have reached the stage where the Kioa principle is regularly applied to decisions that do not affect rights or interests of the classic kind - the extension of the obligation to migrant entry decisions is an instance. 128 Some other of the natural justice obligations are probably universal in character too. The bias rule probably applies generally without the need for any threshhold enquiry into the existence of an affected interest or expectation,129 as might the probative evidence rule. 130 To acknowledge that some natural justice obligations apply more extensively than others need not be seen as a resurrection of the discredited view that the duty to act fairly was distinct from and applied more widely than the more rigourous doctrine of natuml justice.131 For other purposes, a preferable approach would be to determine whether natural justice applied by examining in each case a number of different factors. While the weight attached to some factors is clearly greater, it is the overall balance that is important. This approach was propounded by the Privy Council in Durayappah v Fernando,132 was initially applied in Australia in Salemi v MacKellar (No 2)133 and FAI Insurances Ltd v Winneke,134 but has not been developed further. In outline, and drawing together the threads in recent cases, the main factors appear to be as follows: The nature of the property, right, interest, status, or reasonable expectation: This remains the critical factor, but should not be applied to the exclusion of other factors. 135 The weight that is attached to this factor may vary according to the nature of the interest affected: proprietary and occupational interests, for example, have traditionally gained the strongest proteetion. l36 It is clear too that where a reasonable expectation is affected, the hearing might be quite limited in scope, confined for example to 128 Eg Minister for Immigration, Local GovernfMnt and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, Somaghi v Minister for Immigration, Local GovernfMnt and Ethnic Affairs [1991] FCA 389; (1991) 102 ALR 339 (where the Full Court assumed the doctrine applied), and Conyngham v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423. The principle could in any case probably be incorporated within existing doctrine - for example, by contending that a person has a reasonable expectation that any decision concerning them will be made in a regular and predictable way, by reference solely to infonnation supplied by the person and to known government policies. Eg McInnes v Onslow Fane [1978] 3 All E R 211, 219F. Cf however Koppen v Commissioner for C011lJ1lWlity Relations (1986) 67 ALR 215, in which such an enquiry was 129 made. 130 131 132 133 134 135 136 Eg GTE (Australia) Ply Ltd v Brown (1986) 76 ALR 221. See the cases in supra n 86. [1977] HCA 26; [1967] 2 AC 337. (1977) 137 CLR 396. (1982) 151 CLR 342. Recent examples in which it was held that natural justice did not apply, notwithstanding that a protected interest was affected, include Bread Manufacturers ofNew South Wales v Evans [1981] HCA 69; (1981) 38 ALR 93. Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215, South Australia v O'SMa [1987] HCA 39; (1987) 163 CLR 378, and Twist v Council of Municipality ofRandwick [1976] HCA 58; (1976) 136 CLR 106. Eg Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 (property interest), and Dixon v Commonwealth [1981] FCA 77; (1981) 55 FLR 34 (occupational interest). 72 FederallAw Review [VOLUME 20 disclosure of the information or circumstance that defeated the expectation. 137 Another aspect of this factor which has been prominent in recent ADJR litigation is whether a decision which is advisory, preliminary or investigatory in nature adversely affects an existing interest of a person. 138 The effect or impact of the decision: Distinct from the nature of the interest is the way in which that interest was affected. The greater the detriment, the stronger the presumption that natural justice should apply.l39 It will be relevant too whether that detriment is suffered by a person in a unique or individual way, or in common with other members of the public.l 40 Another mutation of this factor is that the detriment must be suffered as a direct and immediate effect of the decision, not as a contingent result. 141 The nature of the power being exercised: The relevance of this factor has been substantially diminished since it was resolved that the analytical description of a function as legislative, executive or judicial will not alone determine whether natural justice applies. 142 There are, nevertheless, some categories of power that will invite separate consideration: recent examples where the nature of a power was regarded as a relevant but not a conclusive consideration include the power of a domestic body,143 prerogative power,l44 a public sector exercise of a right of private property,145 and the Executive power of appointment of a judicial officer.l 46 There are some powers too which of their nature could not support a hearing obligation, such as a power to enter private premises that are on fire. 147 The statutory and factual criteria according to which the decision was made: The decisional criteria are of two kinds: the spectrum of considerations to which the decision maker was authorised to have regard (the statutory criteria), and the specific considerations to which regard was 137 138 139 140 141 142 143 144 145 146 147 Eg Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648,683 per McHughJ. See eg Koppen v Commissioner for Community Relations (1986) 67 ALR 215, and Laws v Australian Broadcasting Tribunal (1989) 85 ALR 659, and on appeal [1990] HCA 31; (1990) 170 CLR 70, and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. Eg Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396,420-1 per Gibbs J; 442 per Stephen J. Eg Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396,452 per Jacobs I; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 per Mason I, 619 per Brennan J. Minister for Arts, Heritage and Enviro~nt v Peko-Wallsend Ltd (1987) 75 ALR 218, 249250 per Wilcox J. Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, and Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 38 ALR 93. Eg McInnes v Onslow Fane [1978] 3 All E R 211, and Forbes v NSW Trotting Club Ltd [1918] HCA 57; (1979) 143 CLR 242. Eg Coutts v Commonwealth [1985] HCA 40; (1985) 157 CLR 91, and Minister for Arts, Heritage and Enviro~lII v Peko-Wallsend Ltd (1987) 75 ALR 218. "Sydney" Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464. Attorney-General (NSW) v Quin [1990] HCA 4; (1990) 169 CLR 307. Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253, 259. 1991] Developments under the ADJR Act: The Grounds ofReview 73 had in fact (the factual criteria).148 Where either set of criteria focus on matters of policy or public interest it is less likely that natural justice will apply;149 where the considerations are personal or specific to an individual, or the decision will tum on fmdings of adjudicative fact, the presumption works the other way.t 50 Where there are multiple stages in a single decision, it is important also to identify whether the decisional criteria differ at each stage, in which case a separate hearing may be needed at each stage.151 The nature ofthe officer making the decision: There is considerable though not insurmountable hesitation at applying natural justice obligations to the Cabinet. 152 An argument based upon principle and practice could also be raised concerning some exercises of power by a multi-member deliberative body. The statutory procedural framework under which the decision was made: The creation by statute of a right to appeal against a decision may be evidence of a legislative intention that there is no obligation to provide a hearing at the initial stage of decision making)53 Regard may be had in ascertaining that intention to the identity of the appeal body, the scope of the appeal right, the powers of the appellate body, and the operation of the appeal decision in the interim.l 54 It is probably only at this stage too that it is appropriate nowadays to give any direct operation to the classic dictum that an intention to exclude natural justice "is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences, or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment".155 The circumstances in which the decision was made: Though an obligation to observe natural justice may attach ordinarily to the exercise of a power, there may be circumstances which make that obligation inappropriate on a particular occasion - for example, a prompt or urgent decision may be 148 149 150 151 152 153 154 155 Eg FAl Insurances Ltd v WinneJce [1982] HCA 26; (1982) 151 CLR 342, 363 per Mason J. Eg Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 per Gibbs J; Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 38 ALR 93, Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215, and South Australia v O'SMa [1987] HCA 39; (1987) 163 CLR 378 per Wilson, Toohey, and BrennanD. Eg Salemi v MacKellar (No 2) (19n) [1977] HCA 26; 137 CLR 396 per Stephen J; FAl Insurances Ltd v WinneJce [1982] HCA 26; (1982) 151 CLR 342. South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 389 per Mason CJ; Hauocher v Minister for Immigration, Local Gover~nt and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648. See cases referred to in supra n 10. Some judges still regard the conferral of a power on the Governor as a factor to be considered, eg FAl Insurances Ltd v WinneJce [1982] HCA 26; (1982) 151 CLR 342, 397 per Wilson J; cfMason CJ in South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 386. Twist v Municipality ofthe Council of Randwick [1976] HCA 58; (1976) 136 CLR 106. Eg Twist. ibid, Aclcroyd v Whitehouse (1985) 2 NSWLR 239. and Marine Hull &: Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253 (Wilcox 1) and (1986) 67 ALR 77 (Full Court) (raising but not resolving whether a right to appeal to the Commonwealth Administrative Appeals Tribunal will as a matter of general principle displace the obligation to observe natural justice at the primary stage of decision making). Commissioner ofPolice v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396 per Dixon CJ and Webb 1. 74 Federal Law Review [VOLUME 20 necessary,156 providing a hearing may defeat the purpose of the decision by alerting a person to an imminent penalty,157 there may be national security considerations,158 or an adequate hearing or substitute may already have been given on the issue in dispute.l 59 5 EXECUTIVE POLICIES AND DIRECTIONS It is often said that an outstanding achievement of Commonwealth administrative law developments has been to unearth the bureaucracy's repository of internal and hidden law, and to distinguish it from legislation. In accordance with separation of powers notions, administrators have been enjoined to recognise that the executive does not make rules of binding force and, accordingly, that executive policies should not be applied rigidly and automatically, but with flexibility and deliberation. So much is clear, and has been enforced many times recently in judicial review cases. A countervailing theme that has clarified recently concedes to executive policies an importance overlooked by the standard principle. Many ways are now recognised in which departure from an executive policy will spell invalidity. That contrast probably confirms the wisdom of the open-ended guidance given earlier by Mason and Wilson JJ in Bread Manufacturers v Evans : The extent to which a tribunal or public official required by statute to make decisions which affect the rights of the citizen can take into account and act upon the views of the Government or a Minister has been, and no doubt will continue to be, a vexed question....[T]he problem is not one which admits of an answer having a universal application. So much depends on a variety of considerations ... One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Govemment. l60 The broad principles that have been defined, and some qualifications that have developed, are as follows: It is permissible for a government or a decision maker to adopt a policy to guide the exercise of a statutory discretion: The benefits which flow from executive policies and Ministerial directions or guidance, such as consistency, rationality, and government control, have been extolled in a string of landmark cases, including R v Anderson; ex parte Ipec-Air Pty Limited,161 Ansett Transport Industries (Operations) Pty Limited v 156 157 158 159 160 161 Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253,260; cfHeatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, 514 per Aickin 1. Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 586 per Mason J, 633 per Deane 1. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378 per Mason CJ, and Wilson and Toohey 11; but cfHaoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648. (1981) 38 ALR 93, 114. [1965] HCA 27; (1965) 113 CLR 177,201-202 per Menzies J, 205 per Windeyer 1. 1991] Developments under the ADJR Act: The Grounds ofReview 75 Commonwealth,162 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2).1 63 - A policy or direction must not be incompatible with the legislation that it elucidates: Green v Danielsl64 provides the standard illustration of an error of law arising from the application of an unlawful policy or direction. - A discretionary power must not be exercised in accordance with a policy or direction, without regard to the merits of the particular case: The principle that a policy or direction cannot pre-empt the exercise of a statutory discretion is conveniently expressed in two of the ADJR grounds: s 5(2)(e), concerning decisions made under direction; and s 5(2)(f), concerning the inflexible application of policies. There are many recent cases that illustrate a quite rigorous application of that standard. In a deportation context, for example, the comment in a statement of reasons as to a prohibited immigrant that "her continued stay in Australia could not be countenanced" was held to be a breach of the standard. 165 There are comparably strict examples concerning the grant of extension of time to pay tax l66 and release on parole)67 Despite this last mentioned standard, there are situations in which a policy or a direction can be given decisive weight, in a way that deflects proper consideration of the merits of an individual case: High volume decision making: Australian cases have accepted the proviso expressed in British Oxygen Co v Minister of Technology,168 that where numerous applications of a similar kind have to be considered (and, presumably, there is no deprivation of individual rights), a more automatic application of an executive policy will be acceptable. The decision maker's residual obligation is to consider any special pleading)69 Recommendations to government: In Bread Manufacturers of New South Wales v Evans Gibbs CJ pointed out that account had to be taken of the exceptional circumstance that the Minister could veto an order of the Prices Commission: "It would be a futility for the Commission to make an order which it knew that the Minister would veto". Decisive weight could accordingly be given to the Minister's views, "provided that in the end the decision reached by the Commission was its own" .1 70 Chief Justice Gibbs rightly acknowledged that there was a "fine line" between automatically adopting a Ministerial view and considering and attributing decisive weight to it. Another case which was poised on that fine line is 162 163 164 165 166 167 168 169 170 [1977] HCA 71; (1977) 139 CLR 54, 83 per Mason J, 116 per Aickin 1. (1979) 2 ALD 634, 639-640. [1905] HCA 46; (1977) 13 ALR 1. Minister for Immigration and Ethnic Affairs v Tagle [1983] FCA 160; (1983) 48 ALR 566. Eg Ahern v Deputy Commissioner ofTaxation (Qld) [1983] FCA 279; (1983) 50 ALR 177. Rendell v Release on Licence Board [1970] UKHL 4; (1987) 14 ALD 134. [1971] AC 610. Approved eg in Peninsula Anglican Boys' School v Ryan [1985] FCA 387; (1985) 69 ALR 555. (1981) 38 ALR 93, 105. 76 Federal Law Review [VOLUME 20 Peninsula Anglican Boys' School v Ryan.!71 The Commonwealth Schools Commission had the statutory function of giving independent advice to the Minister on capital funding grants to private schools. The Commission's recommendation on the plaintiffs application did little more than point out that it did not qualify under the policy guidelines issued by the Minister. While noting that the Commission was free to disagree with that ministerial policy, Wilcox J accepted that "it would be futile for it to do otherwise than to proceed upon the basis that the Minister has a settled policy and that its proper task is to advise the Minister upon the relationship between that policy and the particular application" .1 72 (In direct contrast is Rendell v Release on Licence Board173 - a case concerned with individual liberty - where the NSW Court of Appeal declared invalid the stance of an independent advisory body of refusing to recommend to the Minister the release on licence of a person who did not qualify under the policy guidelines issued by the Minister.) Duty to apply policy: A corollary of the former principle is the view expressed by Windeyer J in Ipee, and by Barwick CJ, and Murphy and Aickin JJ in Anse tt, that at least in some instances and in relation to important government policies an official may have a duty to implement the policy or directions of the government. In their view, that obligation applied in circumstances where an agency head had been directed not to permit the importation of aircraft into Australia contrary to the Government's "two airline policy". In short, the weight given to the Government's policy was not just decisive, but conclusive. Statutory directions: A statutory power conferred on a Minister to issue directions to a government agency or official may properly fetter the exercise of a discretionary power which that agency or official is required to exercise. But much will depend on the terms in which the Minister's power is expressed. At one end of the spectrum is the power which declares that "the official shall comply with those directions". The Federal Court in New South Wales Farmers' Association v Minister for Primary Industry and Energy174 held that that formula in s 202 of the Wool Marketing Act 1987 (Cth) enabled a binding direction to be given. A step down is the Ministerial power to issue general directions to an agency on how it shall conduct its administration. Aboriginal Development Commission v Hand 175 was such a case: the Court held as valid a statutory direction given by the Minister to the Commission requiring it to "co-operate with the Minister" (for example, by providing information) concerning a proposed reorganisation of the legal and administrative framework for Aboriginal affairs. 171 172 173 174 175 [1985] FCA 387; (1987) 69 ALR 555. Ibid 567-568. (1987) 14 ALD 134. (1990) 94 ALR 207. (1988) 15 ALD 410. 1991] Developments under the ADJR Act: The Grounds ofReview 77 At the other end of the spectrum is the more difficult case, where the statute declares the Minister's power to give directions, but is not explicit about the official's obligation to implement those directions (a common example is that "the exercise of a power by the Secretary is subject to the directions of the Minister"). The meaning of that fonnula is disputed. Justice Davies in Hand said, obiter, "Under such a provision, the Minister may direct the decision to be made in a particular case" .t 76 A contmry view is that a statutory direction should not pre-empt the exercise of a separate statutory discretion. It is unlikely that the officer issuing the direction will have had access to all relevant matters, and to permit a pre-emptive direction would defeat the administrative law objective of ensuring a proper assessment of the merits of each case. That was the view preferred by Northrop J in Zayen Nominees Pty Ltd v Minister for Health: "The power to give directions does not authorize the Minister to substitute his opinion for the opinion of the Permanent Head. At the very most, the directions are to be treated as guidelines to be considered by the Permanent Head in the exercise of the power conferred upon him" .177 As a general rule, an official is free to act inconsistently with an executive policy: This principle is, in a sense, obverse of the previous principle, that a policy cannot preclude consideration of the merits. It has, however, developed a discrete penumbra The standard principle has manifested itself in a number of ways. It has been stated, for example, that "the Minister mayor may not then see fit to act on his stated policy" on, for example, prisoner release, or deportation. 178 Chief Justice Mason recently stated, of a government policy on appointment of magistrates, that "I am unable to perceive how a representation made or an impression created by the Executive can preclude the Crown or the Executive from adopting a new policy" .1 79 The same view explains the general principle that an estoppel cannot be raised to prevent or hinder the exercise of a discretion,180 and that the Administrative Appeals Tribunal is "as free as the Minister to apply or not apply that policy" .181 Even an administrative scheme affecting individual interests, that was formally drafted and published pursuant to a statutory power conferred on a Minister to devise such a scheme, was held not to be binding on an agency in Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce. Justice Davies commented of the scheme, which imposed an obligation on an agency to reconsider a tender process 176 171 178 179 ISO 181 Jd (1983) 47 ALR 158. 189. See also Bosnjak's Bus Service Pty Ltd v Commissioner for Transport (1970) 92 WN (NSW) 1003, and Perder Investments Pty Ltd v Lightowler [1990] FCA 239; (1990) 101 ALR 151. Rendell v Release on Licence Board (1987) 14 ALD 134 per Kirby P, Priestley and Clarke JJA; see also Nikac y Minister for Immigration, Local Government and Ethnic Affairs [1988] FCA 400; (1988) 92 ALR 167. Attorney-General (NSW) y Quin (1990) 170 CLR 1. 17. Eg Minister for Immigration y Kurtovic [1990] FCA 22; (1990) 92 ALR 93, III per Gummow J. Re Drake and Minister for Immigration (No 2) (1979) 2 ALD 634. 642 per Brennan J. 78 Federal Law Review [VOLUME 20 in certain circumstances, that "the Scheme should be looked upon as a statement of guidelines, not as a prescription of legal entitlements....The Scheme did not have legislative character....[In] general, such rules are of a non-binding character" .1 82 The countervailing trend has been to identify circumstances in which a decision made inconsistently with a government policy may constitute a reviewable error: Duty to apply or to have regard to a policy: Two circumstances were noted above in which in which a government policy directive could dictate the actual decision in a particular case - where there is statutory backing for the directive, and (arising from some disputed dicta in the Ipee and Ansett cases) where a directive has been given on an important issue of government policy. But a much broader duty may also exist to act consistently with government policies. In the first instance it is clear (as stated previously) that government policy will usually be a relevant consideration that an official is obliged to consider. An interesting application of that principle occurred in Nikae v Minister for Immigration, Local Government and Ethnic Affairs,183 where a Minister acted unlawfully by not having regard to a policy devised by a predecessor that had not been brought to the Minister's attention by his Department. The Minister was free to change the policy, but not to ignore it. In another way too the policy would influence decision making, since Wilcox J suggested that a subordinate of the Minister would be under a duty to apply the policy. His Honour had applied the same principle in two earlier cases: in Conyngham v Minister for Immigration and Ethnic Affairs 184 his Honour was of the view that an application by "The Platters" to tour Australia was bound to succeed if the relevant migrant entry policy was applied; and in Stammers v Broadbridge 185 his Honour held that a delegate in Australia Post had acted unlawfully in breaching the provisions of an internal manual in making a decision to close the Watsons Bay Post Office. The decision of Wilcox J was reversed in both cases by a Full Federal Court, but without necessarily disturbing the principle that a subordinate may be bound by a policy. Moreover, a strong argument can be made in support of that principle, at least where the purpose of the policy is to confine the scope of a discretion that could otherwise be exercised to a greater extent in adversely affecting individual interests. The situation in Nikae, for example, was that the Minister had adopted a policy, which confined considerably the scope of the Minister's statutory power to deport a person, by providing that a person would be deported contrary to a recommendation of the Administrative Appeals Tribunal only if there were "exceptional circumstances". It is easy to see why that policy 182 183 184 185 (1987) 14 ALD 351, 359, 361. See also Howells v Nagrad Nominees Pty Ltd (1982) 43 ALR 283, 307 per Fox and Franki II, and Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1; (1980) 146 CLR 493, 524 per Gibbs CJ. [1988] FCA 400; (1988) 92 ALR 167. (1986) 68 ALR 423; reversed, (1986) 68 ALR 441. (1987) 73 ALR 523; reversed, (1987) 76 ALR 339. 1991] Developments under the ADJR Act: The Grounds ofReview 79 should be binding on a delegate of the Minister who is faced with making a decision. To hold that the policy is binding would serve an administrative law purpose of confining the scope of a potentially arbitrary discretion, without restricting the legal rights or entitlements of any person, forecloseing consideration of the merits of a person's submission, or conferring a legislative status on an executive standard. Duty to warn a person that a policy will not be applied: A number of the natural justices case make it clear that a person may have a reasonable expectation that an agency will act consistently with a published policy, guideline, course of practice, or promise. 186 Accordingly, it would constitute a breach of the requirements of natural justice for the agency to act inconsistently with that policy without taking appropriate ameliorative action - for example, warning that the policy may be breached, or providing a fair opportunity to address or contradict the substituted policy. Misinterpretation of a policy: In Nikac Wilcox J held that a misinterpretation of a policy by the author of the policy (the Minister) would not be an error of law: "In a situation where the Minister is free deliberately to depart from his own policy, it is difficult to see that a decision by the Minister could be rendered invalid because, in making it, he misinterpreted the policy and thus accidentally departed from it" .1 87 By contrast, the view has been expressed both in Nikac and Gerah that a misinterpretation of a policy by a subordinate can invalidate the exercise of power.l 88 6 CONCLUSION The grounds of review defined in s 5 of the ADJR Act were not an innovation. By 1977 those grounds were well developed at common law, and some had an antiquity stretching back a century or more. It was all the more interesting in that context that the first ten years of the ADJR Act should have raised many new issues on which the past offered little guidance. These included the duty of administrators to initiate enquiries, the status of ministerial statutory directions, the effect of misinterpretation of a government policy, constructive departmental knowledge, and inconsistent administrative decision making. Recent administrative law history has been a dynamic period, characterised in part by doctrinal development, but notable too for doctrinal turmoil. One area affected by this uncertainty has been the government administration, whose unknowing ways have frequently been laid bare by the case law. Disagreement or discordance has been apparent too in judicial ranks, particularly in the number of leading cases in which there was a reversal by a superior court of the decision or principle of a lower court: the list includes FAI,189 Kioa,190 186 187 188 189 Eg Attorney-General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 and Douglas v Allen [1984] FCA 77; (1984) 1 FCR 287. Contra Peninsula Anglican Boys' School v Ryan [1985] FCA 387; (1985) 69 ALR 555, 570. [1988] FCA 400; (1988) 92 ALR 167, 180. Nikac, ibid 179; Gerah Imports Pty Ltd v Minister for Industry, Technology and COl'1'U1ll!rce (1987) 14 ALD 351, 363. FA/Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 (High Court), reversing a decision of the Full Bench of the Supreme Court of Victoria, unreported. 80 Federal Law Review [VOLUME 20 Osmond,191 Conyngham,192 O'Shea,193 Peko-Wallsend,194 Park Oh HO,195 Chan fee Kin,196 Quin,l97 Haoucher,198 Bond,l99 Annetts,200 and Kurtovic. 201 In some degree the differences and the uncertainty are the inevitable corollary of legal change in a dynamic period. But in some degree too the result can be interpreted as a more basic difference in judicial philosophy or approach. A prominent theme in this paper is that in many areas there has been the development of contrasting principles. One set of principles (more often the standard principles) is typically associated with judicial deference or restraint. The alternative body of principle (more often an exception or qualification) usually leads the path to judicial intervention. Entwined with that choice may often be other philosophical or doctrinal options - arising, for example, from a differing perception as to how to balance individual and communal interests, or how to apply the separation of powers doctrine to the judicial and executive arms of government. 202 Another choice that underlies recent developments has to do with defining the objective or purpose of judicial review principles. A traditional definition - that is current and still valid - is best expressed as the rule of law ideal. The essential requirement of that principle is that all governmental action must be undertaken according to law, and with appropriate legal authority. The grounds of review are infused with this principle: the abiding emphasis is that legislation should be interpreted correctly, applied to the appropriate statutory purpose, not be overriden by internal policies or directions, and be applied by the person designated therein as the decision maker. 190 191 192 193 194 195 196 197 198 199 200 201. 202 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (High Court), reversing a decision of the Full Court of the Federal Court (1984) 55 ALR 669. Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 (High Court), reversing a decision of the NSW Court of Appeal [1984] 3 NSWLR 442. Conyngham v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 441 (Full Court of the Federal Court), reversing a decision of the Federal Court (Wilcox J) (1986) 68 ALR 423. South Australia v O'S~a [1987] HCA 39; (1987) 163 CLR 378 (High Court), reversing a decision of a Full Bench of the Supreme Court of South Australia (1986) 44 SASR 507. Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 (Full Court of the Federal Court), reversing a decision of the Federal Court (Beaumont J) (1986) 70 ALR523. Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 (High Court), reversing a decision of the Full Court of the Federal Court (1988) 81 ALR 288. Chan fee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (High Court), reversing a decision of the Full Court of the Federal Court (1988) 15 ALD 751. Attorney-General (NSW) v Quin (1989) 170 CLR 1 (High Court), reversing a decision of the NSW Court of Appeal, unreported. Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 (High Court), reversing a decision of the Full Court of Federal Court (1988) 83 ALR 530. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (High Court), reversing a decision of the Full Court of the Federal Court (1988) 81 ALR 508. Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, reversing a decision of the Full Bench of the Supreme Court of Western Australia [1990] WAR 161. Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 92 ALR 93 (Full Court of the Federal Court), reversing a decision of the Federal Court (Einfeld J) (1989) 86 ALR 99. See P McAuslan, "Administrative Law, Collective Consumption and Judicial Policy" (1983) 46 MLR 1, and 0 Feldman, "Public Law Values in the House of Lords" (1990) 106 LQR 246. 1991] Developments under the ADJR Act: The Grounds ofReview 81 Another objective of judicial review - sometimes compatible, sometimes competing - is to ensure the protection of individual rights. 203 There are many established ways in which this has been done. The doctrine of natural justic~ is very much a product of this objective. Some of the basic principles of statutory interpretation also embody this objective - the requirement, for example, that the government administration have clear (usually express) legal authority before imposing taxation,204 imposing a penalty,205 or interfering with vested legal rights or fundamental freedoms. 206 Recent judicial developments in applying the grounds of review probably owe more to this second objective than to any rule of law objective. Virtually all of what have been described above as the alternative principles - the exceptions and qualifications of standard doctrine - illustrate the rights philosophy at work. The illustrations include the obligation to give genuine and realistic consideration to a person's submission;207 the obligation to initiate an enquiry into matters that are readily available and centrally relevant;208 the need for a plausible evidentiary basis or rational explanation for action that treats one individual differently and adversely to another;209 the requirement to choose, from among different statutory options, the course which is most regular and causes the least adverse impact on an individual;210 the obligation to disclose prejudicial allegations or items of personal information that could form the basis of an adverse decision against an individual;211 and the need to warn an individual of an intention to depart from a policy on which that person might properly and otherwise rely.212 It would be tempting, in the face of that elasticity in judicial review principles and philosophy, to doubt the achievement of the ADJR Act grounds of review. Would it be more realistic, for example, as some judges have preferred, to encapsulate the task of the judiciary in a few broad standards like "unreasonableness" or "faimess"?213 There is merit in that proposal, but the ADJR approach is arguably still the better one. In the area of administrative review a chief requirement is that there must at the end of the day be some agreed standards to guide administrative decision making. Ambiguity will never be removed, but it can at least be contained. This is a more likely outcome where legislation, as the ADJR Act 203 204 205 206 2CJ1 208 2C'» 210 211 212 213 Many other objectives could be identified also - see eg D Feldman, "Judicial Review: A Way of Controlling Government?" (1988) 66 Public Administration 21. Eg Attorney-General" Wilts United Dairies (1922) 91 UKB 897. Amalgamated 1V Services" Australian BroadcQSting Tribunal [1989] FCA 191; (1989) 88 ALR 287. Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR 77; Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281. See text accompanying n 32 infra. See text accompanying n 24 infra. See text accompanying n 80 infra. See text accompanying n 75 infra. See text accompanying n 106 infra. See text accompanying n 186 infra. The most famous such encapsulation being that by Lord Diplock in the CCSU case: text accompanying n 56 infra. See also Sir Robin Cooke, "The Struggle for Simplicity in Administrative Law", in M Taggart (ed), Judicial Re"iew of Administrative Action in tM 1980s (1986). Note, however, the criticism by the House of Lords of Lord Denning's dictum that the courts can detennine whether a decision is "fair and reasonable": ChiefConstable of North Wales Police v Evans [1982] UKHL 10; [1982] 3 All ER 141. 82 Federal Law Review [VOLUME 20 does, goes some way to confining the context in which other differences in philosophy or objective are in contention.