Breaches of procedural fairness at common law
141 It now clearly established that a denial of procedural fairness constitutes jurisdictional error for the purpose of the grant of prohibition. In Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 176 ALR 219 (Aala), the High Court held that where an officer of the Commonwealth exercises power conferred by statute and fails to accord procedural fairness the officer exceeds jurisdiction in the sense necessary to attract prohibition under s 75(v) of the Constitution.
142 The particular factual circumstances of the denial of procedural fairness in Aala warrant some reference. Mr Aala, a citizen of Iran, claimed a fear of persecution for imputed political opinion. He claimed to have been involved in the illegal sale of the assets of the Shah in collaboration with his business partner, Tehrani. His application was rejected by the Refugee Review Tribunal (RRT). The RRT did not accept that Tehrani had told the authorities of Mr Aala's involvement in the transactions. Mr Aala then filed an application for review in the Federal Court. He sent four hand written statements to the Court claiming that he had agreed with Tehrani that if Tehrani was sought by the authorities after Mr Aala had left Iran, Tehrani was free to implicate Mr Aala in order to save himself. The statements also detailed the circumstances of the arrest of Tehrani. The primary judge dismissed the application for review, but an appeal against his decision succeeded. The matter was remitted to the RRT for a further hearing. At that hearing, the RRT member told Mr Aala that she had read all the papers which were before the Federal Court. The RRT again affirmed the decision of the delegate to reject Mr Aala's application. One reason given by the RRT for this conclusion was that Mr Aala had not claimed, prior to the second RRT hearing, that he had agreed with Tehrani that Tehrani should disclose Mr Aala's illegal actions to the authorities, and that he knew of the circumstances of Tehrani's arrest. The High Court held that Mr Aala had been denied procedural fairness because the RRT had misled him by stating that the four hand-written statements had been taken into account when they had not been taken into account. Gleeson CJ said at par 3:
"… the statement [of the Tribunal] in question covered a matter which had a bearing upon the credibility of the prosecutor. It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct. Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility."
143 In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (Miah) the High Court confirmed that the constitutional writs were available to correct a denial of procedural fairness on the basis that such a denial amounted to jurisdictional error.
144 The majority (Gaudron, McHugh and Kirby JJ) held that the delegate of the Minister had denied procedural fairness in rejecting the prosecutor's claim for a protection visa. The prosecutor, a citizen of Bangladesh, claimed that he would be persecuted on return because he actively supported opposition to the Islamic fundamentalists who were favoured by the government party, the Bangladesh Nationalist Party. The delegate rejected the application for a visa on the ground that the Bangladesh Nationalist Party had been defeated in recent elections, and the fundamentalists had lost popular support. The elections had been held after the visa application was made. The delegate did not invite the prosecutor to comment on the significance of the change in circumstances.
145 McHugh J said at par 147:
"The delegate had a duty to exercise his power in accordance with the rules of natural justice. He failed to do so. He did not question the prosecutor's claims about what he experienced in Bangladesh or doubt his credibility. He relied on information that he obtained pursuant to powers conferred by subdiv AB. The information concerned events that occurred after the prosecutor applied for a visa. The delegate consulted that information well after the date of the application. The information was equivocal. The delegate relied on it in relation to the core issue for determination and his reliance on it was decisive of the outcome of the application. In those circumstances, the delegate ought to have informed the prosecutor of the new material and offered him an opportunity to respond to it before acting on it."
See Gaudron J at pars 87-105 and Kirby J at pars 189-96.
146 The form of the Act applicable in Miah set out a number of specific natural justice obligations. For instance, s 57 required the Minister to give an applicant information which would be a reason for refusing a visa and which was about the applicant personally, and required the Minister to give the applicant an opportunity to comment on that information. The fact that certain requirements of procedural fairness were specified in the statute gave the foundation to the Minister's argument that there were no further requirements of procedural fairness. The majority rejected this argument. The provisions of the Act were not a code containing all the requirements of natural justice. There was an obligation to provide the applicant with adverse material in the hands of the delegate which may have been adverse to the applicant's case, and there was an obligation to give the applicant an opportunity to respond to this material. These obligations arose even though they were not specified in the Act, and even though the Act did specify some other similar obligations.
147 It is instructive to examine why the majority took this view. Both Gaudron and McHugh JJ describe the need to give a person an opportunity to respond to adverse matters which the decision maker intends to take into account as a "basic principle": see Gaudron J at par 99 and McHugh J at par 140.
148 Kirby J said at par 192:
"[O]f the many principles of natural justice that govern the exercise of statutory power by repositories entrusted by the Parliament with that exercise, few are more important than the obligation to give those affected an opportunity to be heard before an adverse result is reached in a significant decision on the basis of undisclosed materials. The explanation of the theoretical reason why this is so - because it is imputed to the Parliament; because it upholds the legitimate expectations of individuals; or because it is part of the justice of the common law - is less important than that it represents a legal rule deeply embedded in our legal system."
[citations omitted]
149 It followed from this approach that the principles of natural justice are presumed to apply unless expressly and clearly excluded by statute. Thus, Kirby J said at par 183:
"[O]rdinary presumptions which run so deep in the common law may be given effect. In the absence of the clearest possible indication to the contrary, courts will normally assume that an Australian parliament does not intend to work serious procedural injustice upon persons whose interests are adversely affected by legislation. This is not a presumption that challenges the authority of such parliaments. It is one respectful of the assumption that, in Australia, parliaments ordinarily act justly and expect the repositories of power under legislation to do likewise."
150 In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263Gyles J expressed the view, at par 26, that Aala was neutral on the question of the application of Hickman because, in the former case, there was no question of the operation of a privative clause in contention. That approach, however, does not give sufficient significance to the fact that there is some overlap in the relevant questions in both cases. In determining whether prohibition lies, the Court must determine the jurisdiction of the decision maker, and then decide whether the action of the decision maker was taken in excess of that jurisdiction. The Court must decide what are the limits on the power of the decision maker. In determining whether a privative clause operates, the Court must determine the limits on the power of the decision maker. It is only after those limits have been defined that the operation of the privative clause can be ascertained. Thus, the task of identifying the limits of the jurisdiction of the decision maker are common to both exercises. It is therefore significant, even though not determinative, that the failure to accord procedural fairness has been held by the High Court to be an act beyond the jurisdiction of the decision maker for the purpose of the grant of prohibition. If the obligation to accord procedural fairness is, as Hayne J described it in Aala "a limitation on the power to decide", it bears that character for all purposes.
151 Gyles J expressly left open the operation of s 474 where, as in this case, there is a breach of an express prescriptive provision of the statute governing the procedure of the Tribunal. I agree with his Honour, and have approached the question on the basis he suggests in par 34, as follows:
"In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474."
152 The fundamental nature of the right to procedural fairness at common law which was recognised by the High Court in Aala and Miah as a basis for the grant of prohibition had earlier been recognised by Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78as the basis for concluding that a privative clause did not prevent challenge to a planning scheme made in breach of the requirements of procedural fairness. His Honour said at 109-111:
"His Lordship [Lord Reid in Smith v East Elloe Rural District Council [1956] AC 736] continued (at 764-765):
'… There are many cases where general words in a statute are given a limited meaning. That is, not only when there is something in the statute itself which requires it, but also where to give general words their apparent meaning would lead to conflict with some fundamental principle. Where there is ample scope for the words to operate without any such conflict it may very well be that the draftsman did not have in mind and Parliament did not realise that the words were so wide that in some few cases they could operate to subvert a fundamental principle. In general, of course, the intention of Parliament can only be inferred from the words of the statute, but it appears to me to be well established in certain cases that, without some specific indication of an intention to do so, the mere generality of words used will not be regarded as sufficient to show an intention to depart from fundamental principles.'
Amongst the fundamental principles which are secreted within the law of statutory interpretation are the right of access to the courts and the duty to accord procedural fairness to persons affected by administrative decisions.
Lord Reid's reasoning is consistent with Hickman and the Australian cases that have applied it. The reasoning of the majority in Smith v East Elloe, as applied in R v Secretary of State for the Environment; Ex parte Ostler and R v Cornwell Country Council; Ex parte Huntington, is not consistent with Australian authority.
To say that a particular statutory provision must be 'strictly construed' is not to invoke any specific body of rules. There are degrees of strictness. One formulation of what 'strict construction' requires was stated in Anisminic by Lord Reid (at 170):
'… It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court."
However, as Lord Reid's reasoning in Smith v East Elloe shows, the principle that a privative clause must be construed strictly does not apply only to a clause containing words which have more than one meaning and are in that sense 'ambiguous'. The principle is also to be applied to identify the particular circumstances to which the general words chosen by parliament were intended by parliament to apply. As Jordan CJ put it when identifying the categories of error of law which vitiated a decision making process: '... there are mistakes and mistakes'. Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; 64 WN (NSW) 107 at 109.
The High Court has quoted with approval the following passage from Maxwell on Statutes, 4th ed:
'It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.'
(See Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1990) 171 CLR 1 at 18).
To similar effect are two observations of Isaacs J in Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 91 and 93:
'… But once concede the tractability of a phrase, then the extent of tractability depends entirely on its surroundings, including extraneous circumstances.
… the full literal intention will not ordinarily be ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found; either in the context or the circumstances to overcome the presumption.'
As the six member joint judgment put it in Bropho (at 18):
'The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear.'
With respect to abrogation of fundamental rights and immunities express words are generally required. See Coco v The Queen (1994) 179 CLR 427 at 436-438 where the formulation adopted in the joint judgment of the High Court was 'unmistakable and unambiguous'. See also Kartinyeri v Commonwealth (Hindmarsh Island Bridge Act case) (1998) 72 ALJR 722 at 743; 152 ALR 540 at 569 [89].
The right of access to the courts and, of equal significance in the present case, the common law right to procedural fairness, is a 'deep rooted principle of the law': Commissioner of Police v Tanos (at 395-396); see also Lisafa Holdings v Commissioner of Police (1988) 15 NSWLR 1 at 12-14, per Kirby P; (at 22), per McHugh JA. As I have said above, these principles are secreted in the law of statutory interpretation.
In England a denial of natural justice has been held to be equivalent to jurisdictional error, which prevents the operation of a privative clause: see Attorney General v Ryan [1980] AC 718 at 730). English decisions must be treated cautiously, because of the effective abolition of the distinction between jurisdictional and non-jurisdictional errors of law, a distinction which still exists in Australian law. However, in Attorney General v Ryan, (at 730), the Privy Council applied the following reasoning of Lord Selborne in Spackman v Plumstead District Board of Works (1885) 10 App Cas 229 at 240:
'No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.'
This passage assimilates a breach of the obligation to afford procedural fairness with the kind of error to which the R v Hickman in principle applies. It does, in my opinion, represent the law in Australia.
Breach of the requirement of procedural fairness has generally been assimilated with jurisdictional error in its original narrow sense: see, eg, Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 at 277; Calvin v Carr [1980] AC 574 at 590; Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 716-719; Kopuz v District Court (NSW) (1992) 26 NSWLR 232 at 245; Totalisator Agency Board of NSW v Casey (1994) 54 IR 354 at 359-360; Stock v Grubb (1985) SASR 1 at 19 and 22).
Indeed, breach of the common law obligation of procedural fairness may fall within the R v Hickman principle, as it has been interpreted and extended beyond the original threefold formulation of Sir Owen Dixon. In O'Toole,Deane J, Gaudron J and McHugh J contemplate that rules of procedural fairness could be encompassed within the third R v Hickman principle, that is 'reasonably capable of being referred to the power' (at 287.5). Dawson J suggested that some aspects of procedural fairness fell within the concept of bona fides (at 305.5).
Furthermore, the requirements of procedural fairness which the common law attaches to the exercise of all public power, fall within the scope of the general description of the R v Hickman principle found in some recent judgments. Subject to 'express words of plain intendment' (the Commissioner of Police v Tanos formulation), procedural fairness can be described as an 'inviolable limitation or restraint' (Coldham (at 419); O'Toole (at 274-275)); or as a defect which does 'deny the power': O'Toole (at 305); Deputy Commissioner of Taxation (Cth) v Richard Walter (at 180)."
[emphasis added]
153 The foundational importance to the rule of law of the right of a person to be confronted with evidence to be used by the government against that person was acknowledged in the United States by Chief Justice Warren delivering the opinion of the Supreme Court in Greene v McElroy (1959) 360 US 474 at 496-7 as follows:
"Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.
…
This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, … but also in all types of cases where administrative and regulatory actions were under scrutiny. E. g., Southern R. Co. v Virginia, 290 U.S. 190; Ohio Bell Telephone Co. v Public Utilities Commission, 301 U.S. 292; Morgan v United States, 304 U.S. 1, 19; Carter v Kubler, 320 U.S. 243; Reilly v Pinkus, 338 U.S. 269."
154 It is obvious from the approach of the common law reflected in Australian, UK, and US decisions that the opportunity to be told of adverse information to be used by a government against a person in administrative decision making, and the opportunity for that person to respond to such information, is regarded as a fundamental requirement of fair process. If further confirmation is needed, it is provided in a very recent decision of the Supreme Court of Canada.
155 In Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 the Supreme Court considered a number of questions concerning the deportation of Mr Suresh to Sri Lanka. He was a senior figure in the Liberation Tigers for Tamil Eelam. He had been granted refugee status several years before this case was heard. The migration legislation, however, allowed for deportation where the Minister formed the view that the person was a danger to the security of Canada. Where the Minister formed that view, the person could be deported even if the person faced the risk of torture on return. The Minister received a written recommendation from a departmental officer that Mr Suresh should be deported. Mr Suresh was not entitled to an oral hearing under the statute. One question was whether he was entitled to a copy of the departmental recommendation and to an opportunity to respond to its contents. It is useful, first, to record the approach which the Court took to the issues raised by the case in general. At pars 2, 3 and 4 the court said:
"The appeal requires us to consider a number of issues: the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether 'terrorism' and 'danger to the security of Canada' are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.
The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Government, expressing the will of the governed, need the legal tools to effectively meet this challenge.
On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society - liberty, the rule of law, and the principles of fundamental justice - values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament's challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitutional and our international commitments."
[emphasis added]
156 The question of the entitlement of Mr Suresh to a copy of the recommendation and to an opportunity to respond is particularly relevant to the present case as it raises the same question of principle. The issue in Suresh was whether the Canadian Charter of Rights and Freedom (the Charter) required Mr Suresh to be provided with such procedural protections. Section 7 of the Charter provides:
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
[emphasis added]
157 Mr Suresh argued that the chance to see and respond to the recommendation was necessitated by "the principles of fundamental justice". The Court said at par 113-4:
"This appeal requires us to determine the procedural protections to which an individual is entitled under s. 7 of the Charter. In doing so, we find it helpful to consider the common law approach to procedural fairness articulated by L'Heureux-Dubé J. in Baker, supra. In elaborating what is required by way of procedural protection under s. 7 of the Charter in cases of this kind, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations. What is important are the basic principles underlying these procedural protections. The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. As Professor Hogg has said, 'The common law rules [of procedural fairness] are in fact tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7': see P.W. Hogg, Constitutional Law of Canada, (loose-leaf) Vol. 2, at para. 44.20. In Singh v Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section 7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, supra. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker, supra, properly recognizes the ingredients of fundamental justice.
We therefore find it appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7. In saying this, we emphasize that, as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common law factors not as an end in themselves, but to inform the s. 7 procedural analysis. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case.
[emphasis added]
158 The court then examined the context in which the ministerial decision had to be made. A number of features pointed to the need for procedural protections. For instance, there was no right of appeal from a decision, and no right to make any further requests to remain in Canada. Further, the right to stay in Canada was of great significance to Mr Suresh because he faced the danger of torture upon return to Sri Lanka. This factor was particularly important because the Executive had bound itself to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36. The court concluded at pars 122-3:
"We find that a person facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual, including memoranda such as Mr Gautier's [the departmental officer] recommendation to the Minister. Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the materials she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister's staff.
Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minister where issues as to it's validity arise. Thus the refugee should be permitted to present evidence pursuant to s. 19 of the Act showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization. The same applies to the risk of torture on return. Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.
[Emphasis added]
159 The court remanded the case to the Minister for reconsideration in accordance with the procedures set out in the reasons.
160 Of course, this case depends on its own particular constitutional, statutory, and factual circumstances. However, its significance is that the court treated the constitutional principles of fundamental justice as informed by the requirements of procedural fairness at common law. The approach is of particular significance because it was enunciated very recently by the highest court in Canada. The decision was a unanimous decision of nine justices. It was made against the background of the statutory and governmental responses to the recent threats of terrorism. The case was clearly treated as an important test case. There was representation not only on behalf of the parties, but also on behalf of the United Nations High Commissioner for Refugees, Amnesty International, the Canadian Bar Association, and the Canadian Council of Churches. Even at this time of much heightened sensitivity to the threat of terrorism, the Supreme Court of Canada recognised that the right to receive and respond to adverse information is one of the "values fundamental to our democratic society".
161 Section 359A(1) mirrors the particular common law obligation enforced in Aala, namely the duty of an administrative decision maker to give adverse information and an opportunity to comment to an applicant before it. The fact that a breach of such a requirement is regarded as an excess of jurisdiction for the purpose of the grant of prohibition does not necessarily mean that the same breach falls outside the operation of a privative clause. However, the fundamental nature of the requirement bears upon the likelihood that a breach was intended to carry a remedy. The nature of the obligation, as explained in Aala and Miah, albeit for a different purpose, and as recognised in the international jurisprudence referred to above, suggests that a decision made in breach of that obligation was not intended to be valid. If the failure to have a quorum in Proctor was not intended to lead to a valid decision, it is difficult to imagine that the breach of s 359A(1) was not intended to lead to invalidity.
162 It is the basic nature of the common law obligation to accord procedural fairness which means that it applies to a decision made under statute unless expressly and clearly excluded. It follows that where the same obligation is found in a statute it should be presumed that, absent an unmistakable intention to the contrary, a decision made in breach of the obligation is an act of the decision maker taken outside jurisdiction. The nature of the obligation is so fundamental that compliance is a prerequisite to a valid decision.