Legislative Exclusion of Procedural Fairness
93 There is no real dispute between the parties as to the principles to be applied. The parties diverge on the principles' application to the present circumstances. Stated in short form those principles are:
(i) when a statute confers a power on a public official the exercise of which affects a person's rights, interests or expectations, the rules of procedural fairness regulate the exercise of that power unless those rules are excluded by express terms or by necessary implication: Kioa v West (1985) 159 CLR 550 at 584; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 93; on "necessary implication", see B v Auckland District Law Society [2004] 1 NZLR 326 at 349;
(ii) a legislative intention to exclude the rules will not be assumed or spelled out from indirect references, uncertain inferences or equivocal considerations: Commissioner of Police v Tanos (1958) 98 CLR 383 at 396;
(iii) an intention to exclude should not be inferred merely from the presence in the statute of rights which are commensurate with some of the rules of procedural fairness: Annetts v McCann (1990) 170 CLR 596 at 598; and
(iv) while the rules may be excluded because the power in question is of its nature one to be exercised in circumstances of urgency or emergency: Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241; "urgency cannot generally be allowed to exclude the right to natural justice": Minister for Aboriginal and Torres Strait Islanders Affairs v State of Western Australia (1996) 67 FCR 40 at 59; although it may in the circumstances reduce its content: J Wattie Canneries Ltd v Hayes (1987) 74 ALR 202 at 214; State of Western Australia v Native Title Registrar (1999) 95 FCR 93.
94 The Act was enacted consequent upon the ALRC's Report No 14, "Lands Acquisition and Compensation" ("the Report"). Its provisions reflect both recommendations of that Report and the draft Bill appended to it. The Report provides a significant part of the "context" in which the Act is to be construed and its intent ascertained: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 at [11].
95 A declared purpose of the Report was to bring administrative decisions involving land acquisition within the framework of accountability then recently established under the Administrative Appeals Tribunal Act 1975 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). Significantly, the last of these Acts had not been proclaimed at the time of the Report. The resultant focus in the ALRC's recommendations was on administrative accountability and merits review rather than on judicial review as such.
96 This emphasis is evident in the concluding paragraph of Chapter 4 which was entitled "Accountability for Decision: Reform of Administrative Law":
"71. The subject matter of the Reference, the decision by government compulsorily to acquire the property of a citizen and the compensation payable to a citizen whose property is acquired, or adversely affected, by government action, profoundly touches 'the rights of private property'. Decisions which interfere with property rights should be, and be seen to be, proper and justifiable. Some mechanism is necessary to ensure accountability and the avoidance of arbitrary and erroneous decisions. On the other hand the community has a 'legitimate need for land for public purposes and for public works' and an interest in efficient administration. Accountability may mean better decisions but it does exact a price in terms of cost, work and possibly delay. The requirement is for an approachable, low-cost and efficient tribunal empowered to review, on their merits, decisions relating to the acquisition of land or the determination of compensation. An essential ingredient is the provision of information, including reasons. The Commission's recommendations for the provision of notices, reasons and valuation information, and for the review by the Administrative Appeals Tribunal of decisions to acquire land and of the government's offer of compensation, seek to achieve these objects. They should be seen, in the context of lands acquisition, as a species; the genus is the new administrative law of the Commonwealth."
97 The statutory scheme governing pre-acquisition procedures reflected (with some modifications) that proposed by the ALRC. The ALRC's premise, adopted in the Act, was that the general rule would be that pre-acquisition decisions would be subject to merits review, first by way of ministerial reconsideration and then by the Administrative Appeals Tribunal ("the AAT"). Departure from that scheme was to be exceptional. Having a tiered process of merits review as an integral part of the acquisition scheme affected both the procedures that were recommended leading up to an acquisition decision and the time that could elapse before such a decision might be able to be taken.
98 The ALRC was aware that "delay, cost and inconvenience" could be raised as arguments against independent review by the AAT. As it said in par 110 of the Report:
"Delay, cost and inconvenience. These are material matters. If it be possible, consistently with fairness to individuals, additional administrative work and cost should be avoided. However, in the present context, they cannot be given much weight. Objections may be made to the obligation, in any area of administration, to give reasons and submit to review or appeals on the grounds of delay, cost and inconvenience. They have not been thought sufficient to impede the move to accountability already mentioned. Given the significance, to the individual, of compulsory acquisition of his land, they can hardly be treated as decisive."
99 Though the Act deviated in some respects from the ALRC's proposals as to when there could be departure from the merits review procedure, it adhered to the staged pre-acquisition procedures that the ALRC recommended and it adopted a staged timetable leading to possible AAT review which potentially ran for several months before an AAT review could be sought: see ss 26(3), 27(4) and 28(4).
100 The ALRC envisaged that there would be exceptional circumstances in which a person should be denied the general rights the Report was proposing. These circumstances were the precursors of those that could be the subject of a certificate under s 24(1) of the Act. The ALRC's view was that (at [146]):
"There will be cases where a requirement of a Ministerial declaration will, for exceptional reasons, be contrary to the public interest. Two cases may be identified:
· Cases of urgent necessity. These cannot be exhaustively listed but obvious examples are defence needs during a time of war or imminent war, emergencies following a natural disaster such as a cyclone or flood, emergencies following an accident, or sabotage, or during a shortage of some basic commodity or during some extraordinary economic crisis. In such cases government must be able to move quickly. The normal requirements of notice and appeal may have to be put aside in favour of a higher public interest.
· Cases of confidential information. It is sometimes necessary for the government to acquire land for purposes related to the defence or security of Australia. Disclosure, in such a case, of the proposed use of the land may be contrary to the public interest. The dispossessed owner may feel aggrieved that he is not told the purpose for which his land is required, except in the vaguest of terms, and why it has been selected, but that personal grievance has to yield to the wider interest.
A decision about the existence of a state of urgent necessity or the sensitivity of information necessarily imports political considerations. It ought, therefore, to be made by a Minister, who will be responsible to Parliament for the decision. The power to dispense with a declaration, and to negative the owner's right to information, will, under these recommendations, be an extraordinary one diminishing an owner's usual rights. It should only be exercised in extraordinary circumstances and should be promptly brought to the attention of Parliament. The Minister should be obliged to lay his certificate before each House within three sitting days and to serve it upon the owner. It is not recommended that the Minister should be required to certify the reasons for his decision. This would, in some circumstances, destroy the purpose for which the power was exercised. Where reasons might legitimately be expected Parliament will, no doubt, require them to be given."
101 This reasoning was reflected in cl 16 of its Draft Bill:
"16. (1) Where the Minister is satisfied that -
(a) by reason of the urgent necessity for using the land or for carrying out works connected with the public purpose for which the land is proposed to be acquired, it would be contrary to the public interest for the acquisition of the land to be delayed for such time as is required to enable compliance with the requirements of Part IV; or
(b) the public purpose for which the land is proposed to be acquired is such that compliance with sub-section 17(2) would result in a disclosure of information that would be prejudicial to the security, defence or international relations of Australia,
the Minister may certify in writing that he is so satisfied and in that case the land may be acquired at any time thereafter notwithstanding the provisions of Part IV.
(2) The Minister shall cause a copy of the certificate -
(a) to be laid before each House of the Parliament within 3 sitting days of that House after the date on which he gives the certificate; and
(b) to be served on each person whom the Minister believes, after diligent inquiry, to have an interest in the land proposed to be acquired." Emphasis added.
The references in this to Part IV are to the pre-acquisition procedures that would attract merits review. The two matters that have been emphasised in the draft clause differ in material respects from the language adopted in s 24 of the Act. The Draft clause's reference to "urgent necessity for using the land" etc became "urgent necessity for the acquisition" in s 24(1). The second and more significant matter highlighted - "the land may be acquired at any time thereafter" - was omitted from s 24. It would appear that the ALRC's intent as reflected both in its Draft clause and in its report was "to allow the acquisition to proceed without further delay" after a Minister's certificate had been given: Report, [163].
102 The final comment to be made on the Report is that the system it proposed was to, and did, replace one under which accountability was exacted by the Houses of Parliament through the power each possessed to disallow an acquisition within 30 days of a notice of acquisition being tabled in each House. I will return to the contextual significance of the Report below.
103 Turning to relevant parliamentary material, the Second Reading Speech did no more than instance cl 24 as an illustration of where AAT review was considered "inappropriate". In so doing the responsible Minister saw it as giving effect to two principles to which the ALRC was required to have regard in its terms of reference, ie:
"(a) the need to strike a balance between the rights of private property on the one hand and the legitimate need of society for land for public purposes and for public works on the other; and
(b) the effects on efficient administration of legislation relating to the acquisition of land and the speedy resolution of claims for compensation."
104 Apart from providing the now characteristic précis of the terms of cl 24, the Explanatory Memorandum contained two additional comments. The first was that notwithstanding that the issue of a certificate removed an owner's entitlement to avail of the merits review procedures, "[t]he decision to give a certificate would be reviewable" under the Administrative Decisions (Judicial Review) Act 1977.
105 The second comment was that:
"The prerequisite to acquisition (compulsory or by agreement) is satisfied on the issue of a certificate."
Considered in the context of the Bill and the Explanatory Memorandum, this observation can only be taken as indicating that the "general pre-requisites to acquisition" specified in cl 40 and cl 41 of the Bill (now ss 40 and 41 of the Act) would have been satisfied in whole (s 41) or in part (s 40) by the issue of a certificate: see the Explanatory Memorandum, cl 40 and cl 41.
106 Turning to the Act and in particular to s 24, it cannot properly be said that they demonstrate a clear legislative intent positively to exclude the rules of procedural fairness prior to a s 41 acquisition decision being made. Whatever the position may have been had Parliament adopted the ALRC's Draft Bill's cl 16(1) (which expressly permitted the land to be acquired "at any time" after a ministerial certificate had been given), it did not expressly excluded those rules. When s 24 is considered in context, there is insufficient legislative indication in the scheme of the Act and the terms of the section that such exclusion was intended. There are, in my view, indications to the contrary.
107 As I have emphasised, a clear purpose of the ALRC report and of the Act was to formalise a system of acquisition in which the general rule would be that decisions leading to compulsory acquisition would be subject to merits review. The Act quite designedly adopted the AAT model of administrative review. Its procedures and timetables were moulded accordingly.
108 Both the ALRC and the Act have recognised that there would be instances in which this review procedure was inappropriate. In the case of s 24(1) that inappropriateness arose in a setting in which there was an urgent necessity to acquire the interest in question but in which:
"it would be contrary to the public interest for the acquisition to be delayed by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration."
109 The merits review procedures of the Act, as I have indicated, could result in several months delay from the giving of a certificate before the AAT became seized of a review let alone before it determined it. It was, in other words, the possible delay that inhered in the general administrative accountability regime adopted in the Act that could make that accountability regime inappropriate. That regime did not provide the only possible role to fairness and accountability.
110 It is one thing positively to exclude merits review, particularly review of an expansive kind. It is another positively to exclude procedural fairness as such. In many instances adequate procedural fairness falling short of the Act's merits review system could be afforded an affected landowner within a timeframe that would not occasion delay of such possible length as would be contrary to the public interest. For this reason the s 24 power is not of its very nature inconsistent with an obligation to be heard prior to a s 41 acquisition decision: cf Marine Hull and Liability Insurance Co Ltd v Hurford, at 241.
111 Both the ALRC and the responsible Minister acknowledged that the nature of the acquisition power was such that its exercise could affect "profoundly" the owner of the subject land. In such a setting, and against the background of a clearly recognised need to "strike a balance" between private and societal interests, one would have expected the legislature to have spoken with unmistakable clarity if it was to deny rights of procedural fairness that could otherwise have been made available to an affected landowner. It has not done so.
112 I consider that the primary judge erred in finding that "plain words of necessary intendment" have excluded the right to procedural fairness.