The primary judge's reasons
15 The primary judge rejected two grounds of judicial review including that of legal unreasonableness. It had been contended that the Minister misunderstood Ms Smith's representations which she said were to the effect that the murder and burglary convictions were not drug-related, and that she had not been proposing that none of her convictions were drug related (as plainly some of them were). These grounds, rejected by the primary judge, are a direct result of the lack of clarity of the Minister's process of reasoning. The primary judge concluded at [61] that, read fairly and in context:
…[110] formed part of the Minister's response to Ms Smith's representation that there was no allegation made against her in relation to the murder that her conduct involved illegal drugs. In effect, the Minister proceeded on the basis that Ms Smith was denying that her conduct there was drug related.
16 At [63] the primary judge held that there was probative evidence to support the Minister's tentative view that Ms Smith's offending in respect of the murder and burglary were driven by a combination of substance abuse and her prior experience of domestic violence, including the fact that Ms Smith had been convicted of possessing dangerous drugs two days after the murder. As will become apparent, the Minister maintained that the fact that the Minister's view was held by the primary judge to be reasonably open on the evidence was also relevant to the issue of procedural fairness which the primary judge decided against the Minister.
17 In dealing with the issue of procedural fairness the primary judge provided an orthodox summary of the relevant principles saying:
69 It is well settled that a decision-maker is not required to give a running commentary or "expose his or her mental processes or provisional views" (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 592). A decision-maker is, however, required to identify for the person affected "any critical issue not apparent from the nature of the decision or the terms of the statutory power" and advise of any adverse conclusions "which would not obviously be open on the known material" (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J). Although those observations in SZGUR related to decision-making by the then Refugee Review Tribunal, I consider that they are equally applicable to decision-making under s 501CA(4) of the Act.
70 It is important also to note the Full Court's following observations in Alphaone at 590-591 (emphasis added):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
...the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.
71 The emphasised words in the extract above from Alphaone were expressly approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 (SZBEL) at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Their Honours also emphasised the need for "considerable care" in applying a dichotomy between conclusions which are not obviously open on the known material and the mental processes of decision-making (see SZBEL at [31] and the further observations of the Full Court on this matter in Stowers [Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174] at [40]).
72 It is also well settled that the requirements of procedural fairness are to be determined by reference to the statutory framework within which a decision-maker exercises a relevant power and that "the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case" (SZBEL at [26], citing Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504).
73 The following observations of the Full Court in Stowers at [43] and [44] are pertinent, noting that they are also directed to decision-making under s 501CA(4) of the Act:
43. As the brief analysis of relevant caselaw above indicates, it is well settled that the statutory context, and the particular facts and circumstances, are important in determining whether or not there has been procedural unfairness. In some instances, procedural fairness does not require a decision-maker to put to an affected person every piece of information the decision-maker will consider. It may be sufficient merely to put the substance of the material to the person (see, for example, Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223).
44. The underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness is another important consideration. It is to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters. As the Full Court observed in Traill v McRae [2002] FCAFC 235; 122 FCR 349 (Sackville, Kenny and Allsop JJ) at [134], what constitutes adequate notice of a matter and when it should be provided is to be decided by reference to the circumstances of the case in question and is directed to enabling the affected person "fairly to respond". In our view, those observations apply equally to disclosure.
74 Each case necessarily turns on its own particular facts and circumstances but helpful general guidance as to the nature and extent of the required disclosure of the matters which may be critical to a decision is also provided by the Full Court's statement in Stowers at [49], i.e. that advice or notification of such critical factors must be "practical, direct and non-misleading".
18 The primary judge said this about the Minister's reasoning process:
81 Ms Smith was aware from the terms of Direction 65 that a potentially important issue to the decision to be made under s 501CA(4) was the seriousness of her prior offending and the risk of her re-offending. Indeed, the relevant part of her representations expressly addressed why she said that she was not an unacceptable risk to the community.
82 For the reasons given above, the Minister reasonably understood Ms Smith's statement that none of the "allegations" involve illegal recreational drug were directed to her murder/burglary conviction.
83 There was no direct evidence before the Minister which was inconsistent with Ms Smith's statement of fact concerning those allegations.
84 The Minister viewed Ms Smith's assertion of fact as amounting to a denial on her part that her murder/burglary offending was drug related.
85 This "denial" was relied upon by the Minister, together with Ms Smith's denial concerning her guilt for the murder, as being indicative of her propensity to re-offend.
86 For the reasons set out in [80] and [82] of the statement of reasons, the Minister found that, although there was uncertainty about the "drivers" of Ms Smith's murder/burglary offending, on balance it appeared to the Minister that it was likely a combination of substance abuse issues and Ms Smith's past personal experiences of domestic violence.
19 His Honour continued, expressing his conclusions that this process of reasoning, while legally reasonable, nevertheless denied Ms Smith procedural fairness. The primary judge said (our emphasis to highlight the critical part of his Honour's reasoning):
87 It was open to the Minister to adopt this path of reasoning but, if he did, he needed to comply with procedural fairness requirements. Merely because a finding or decision is legally reasonable and rational does not mean that it was arrived at by a process of decision-making which meets procedural fairness requirements. In my view, applying the approach in Stowers as to whether in all the circumstances Ms Smith had been given practical, direct and non-misleading advice (or notice) as to the factors which might be critical to the Minister's decision, this did not occur. Although Ms Smith herself drew the Minister's attention to her assertion that, as a matter of fact, the allegations against her concerning the murder conviction were not drug related, she could not reasonably have anticipated that the Minister would characterise her assertion of fact as a denial on her part that drugs were involved, that he would come to his own view on that matter notwithstanding that there was no finding in the criminal proceeding that drugs were involved, nor that the Minister would proceed to use the denial which he attributed to Ms Smith as part of his reasoning as to why he considered that there was a risk that Ms Smith might re-offend. It may have been open to the Minister to come to his own view on these matters, based on the material before him, but procedural fairness required that Ms Smith be given a prior opportunity to comment on those matters. She was denied that opportunity because nothing in the material which she was given or the statutory scheme itself adequately disclosed that the Minister might approach the decision-making process in the way that he did. In the particular circumstances, the denial of procedural fairness is itself the source of practical injustice to Ms Smith (see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [82] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [60] per Gageler and Gordon JJ).
88 For completeness, I would add that the reasons given above as to why there was procedural unfairness would apply equally even if [110] of the Minister's statement of reasons were read more broadly and covered all of Ms Smith's offending. The all-encompassing reference there to "any offending" must also include a reference to the offending which gave rise to the murder/burglary convictions.