Particulars (ii) and (iii)
65 It is well established that the rules of natural justice require a decision-maker to accord procedural fairness in the decision-making process. The Commissioner accepted that the rules of natural justice apply to the making of a decision under s 255-15(1). It is necessary to determine two matters:
(1) the "practical content" of the rules of procedural fairness in the circumstances of the present case: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653 per Deane J (Haoucher); and
(2) whether the Commissioner failed to comply with the content of those rules in a way, or with consequences to the applicant, that would justify the granting of relief.
66 A debtor can offer security if he, she or it wants to. A debtor making a request to pay by instalments is not limited in the material which might be put forward in support of a request or in the offer which they might choose to make. The fact that security is one of the matters which the Commissioner might take into account is obvious from the terms of PS LA 2011/14, if it is not obvious from the context in which a request under s 255-15(1) is being made. It might be a matter of good administration to provide advice to applicants, but procedural fairness does not generally require a decision-maker to advise an affected person of the content of the application that can best be made in their circumstances: Elbourne v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211 at 212, per Davies J. That is especially so in a statutory scheme which contemplates multiple "applications". I use the word "applications" here in an informal sense. Section 255-15(1) does not refer to a requirement to make an application, but in the typical case a debtor makes a request or puts forward a proposal in order to ask the Commissioner to exercise the power.
67 In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (Miah) at [31], Gleeson CJ and Hayne J (dissenting, but not relevantly for present purposes) made the point that it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the relevant power (emphasis added):
In considering the scheme of legislation relating to the exercise of a particular kind of power, it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. But decisions of that character are made in varying contexts. Here we are concerned with a decision to be made following a formal application. The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure. Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated. In many cases, it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made.
68 Here, the context is that no formal application is required (unlike in Miah), a request to exercise the power can be made in any appropriate way, there is no statutory specification of what must be provided in support of a request, the discretion is conferred in very general terms and the statute does not expressly or impliedly suggest any particular process or requirement for communication between the decision-maker and the debtor making a request or putting forward a proposal. The context includes that, if a proposal were refused for a specific reason, a second request or proposal might be made. The debtor might choose to address or make good the perceived inadequacies identified in the earlier refusal. The process is relatively informal, in this case by exchange of emails, analogous to what might occur in commercial negotiations.
69 If the Commissioner, when considering a request made pursuant to s 255-15(1), forms the view that one of the reasons he might not accept the instalment proposal is that security was not offered, it is not a requirement of procedural fairness on the Commissioner's part to draw that fact to the applicant's attention before making the decision. His decision might identify the lack of security as a reason for refusing to exercise the power. A debtor might then make a further request offering security. Nor is the Commissioner required to ask for security. If a failure to offer security were the only basis for refusing a proposal, or the proposed arrangement would be agreed to if good security were offered, then good administration might suggest in a particular case that the Commissioner should raise the matter in furtherance of securing an outcome which promotes the statutory objective of ensuring timely payment of tax-related liabilities. However, a failure to do so does not constitute a denial of procedural fairness in the ordinary course.
70 A decision-maker is not required by rules of procedural fairness to give a debtor making a request under s 255-15(1) a running commentary on the views being reached or on how the request might be improved.
71 The applicant contended that, even if all of this is ordinarily true, the particular circumstances of this case alter that position. The applicant contended that the Second Decision was a "reconsideration" of the First Decision and that a "new issue" arose in the making of the Second Decision such that the rules of procedural fairness required this "new issue" to be raised with him. The applicant relied on Haoucher and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL).
72 Those cases involved a statutory review (SZEBL) or statutory reconsideration (Haoucher) of a decision of another decision-maker. Neither was directly concerned with primary or original decisions. The statutory and administrative context in both cases was different. The present case is not concerned with the requirements of a tribunal or other entity performing an administrative review function. This case is about original decisions.
73 In Haoucher, the applicant had appealed to the Administrative Appeals Tribunal for review of a decision by the Minister to issue a deportation order under s 12 of the Migration Act 1958 (Cth). The Tribunal had remitted the matter to the Minister for reconsideration in accordance with a recommendation that the deportation order be revoked. The Minister declined to follow the Tribunal's recommendation, notifying the applicant that he intended to proceed with the deportation. In so doing, the Minister departed from a previously announced policy that the Minister would only reject a recommendation of the Tribunal "in exceptional circumstances and only when strong evidence can be produced to justify [the] decision": Haoucher at 657. The Minister provided no notice to the applicant of his intention to depart from that policy. If he had, the applicant would have made representations. The case before the High Court ultimately concerned the content of the fair hearing rule in circumstances where the Minister was under a statutory obligation to reconsider his original decision and in doing so, departed from a previously announced policy without notice to the applicant.
74 In SZBEL, the Minister's decision to refuse the applicant's protection visa application was subject to review by the Refugee Review Tribunal in accordance with s 425(1) of the Migration Act 1958 (Cth). That section required that an applicant be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". In affirming the Minister's decision, the Tribunal relied in part on issues which the Minister had not considered to be dispositive of the applicant's case. The High Court ultimately found that, where a decision on review is disposed of by a reviewing body by reference to issues other than those considered by the primary decision-maker to be dispositive, a failure to notify the applicant of the "new issues" arising on review constituted a denial of procedural fairness. The Court stated:
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. [Footnote omitted; emphasis in original]
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
75 Haoucher and SZBEL recognise that the content of the requirements of procedural fairness may be affected by the process of decision-making, including what is or is not said or done during that process. If a review body, reviewing a primary decision under a provision equivalent to s 425(1) of the Migration Act 1958 (Cth), decides the case on a completely new issue without notice to the affected person, it is not difficult to see that there may have been a denial of procedural fairness on the statutory "review" of the primary decision resulting in relevant unfairness. The applicants in those cases were not engaged in the sort of process contemplated here where they might make further applications addressing the reasons for earlier refusals.
76 The statutory scheme presently under consideration is quite different to the statutory schemes in SZBEL and Haoucher. Section 255-15(1) is not a provision which is concerned with review or reconsideration of any earlier decision and that is not what in fact occurred. Here, there were two decisions based on two different proposals, albeit the Second Proposal and Second Decision referred to the First Proposal and First Decision. That does not mean that the overall decision-making process and the terms of the First Decision are irrelevant to the content of what was required by the rules of procedural fairness in relation to the Second Decision. However, what the rules of procedural fairness required in this particular case must be assessed against the statutory scheme in this case and not, for example, the content of what is required by the rules of procedural fairness on a statutory "review" of a primary decision in accordance with the terms of s 425(1) of the Migration Act 1958 (Cth).
77 Whilst the First Decision did not refer to the absence of security, it cannot reasonably be inferred from that fact that the question of security would not be considered relevant in the context of any subsequent, modified or further proposal, even if that subsequent proposal were on otherwise more favourable terms. It is evident from the terms of PS LA 2011/14 that the provision of security might affect the way in which the Commissioner might exercise his discretion. It is true that most of the references to providing security in PS LA 2011/14 have a flavour of it being something the Commissioner might request (or require). In part, that is because of the specific regime in Subdivision 255-D, referred to above. However, PS LA 2011/14 also contains references to a debtor voluntarily providing security. Whether it is offered voluntarily or in anticipation of a request being made by the Commissioner or in response to such a request, PS LA 2011/14 certainly indicated that security was, as a general matter, a potentially relevant consideration. One might have thought that this was clear in any event from the context.
78 The brief reasons provided in the Second Decision indicate that the decision-maker was not satisfied about the capacity or likelihood of the applicant to meet the new instalment proposal he put forward, notwithstanding the promise of additional funds to be borrowed by him from his wife (who would borrow relying on available real property in order to lend to the applicant). That is the reason why the Second Proposal was rejected. It is potentially misleading to speak of the absence of security as a reason the Second Proposal was rejected. The real point is that the Second Proposal may have been acceptable if adequate security had been offered because that may have allayed the decision-maker's concerns about the capacity or likelihood of the applicant meeting his proposal. Adequate security was "required" (to use the words apparently used by the DCO in a conversation with the applicant's legal representative after the Second Decision) in the sense that the Second Proposal was unacceptable without it. The reference to paragraph [87] of PS LA 2011/14 suggests the decision-maker would have been more favourably disposed to the proposal if something more concrete (specifically, adequate security) had been put forward to secure the debt payable to the Commissioner than the promise of a further loan to the applicant. That was something which might have been expected; it was certainly not an unusual stance to take in the context of the earlier dealings between the DCO and the applicant and Rediform. The reference to paragraph [87] merely indicated what kind of security would be preferred.
79 There was no obligation as a matter of procedural fairness on the part of the Commissioner to raise the question of security with the applicant before making the Second Decision, even though security had not previously been raised. A debtor applying under s 255-15(1) may raise for the Commissioner's consideration whatever relevant matter they wish and the Commissioner, in the usual case and subject to what is said below, is under no obligation as a matter of procedural fairness to inform the debtor that the proposal might be acceptable if the debtor were to offer some form of acceptable security, or forewarn the debtor of his proposed reasons for refusing the proposal or request, if that be his decision, before reaching a decision. That position was not altered by the particular decision-making process involved in the present case.
80 The applicant relied on the following two proposition identified by the Full Court (Northrop, Miles and French JJ) in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591E-F:
1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it …
2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material … [Citations omitted]
81 The Full Court in Alphaone at 590-591 also said:
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. [Citations omitted]
82 That latter passage was quoted with approval by the High Court in SZBEL at [32].
83 The content of the rules of procedural fairness, and specifically whether those rules require disclosure of particular matters before making the relevant decision, depends on the circumstances of each case and on the particular statutory context and administrative function it creates, including the nature of the power to be exercised and how the exercise of that power affects the rights or interests of the person affected.
84 In National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 326, Brennan J observed:
The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice.
85 The statutory context and administrative function and framework have been set out in more detail earlier. Multiple requests may be made under s 255-15(1) and later requests may address and seek to overcome issues identified in earlier refusals.
86 A refusal of a proposal in the statutory scheme now being considered does not have the considerations of finality which might apply, for example, to decisions made in respect of formal applications contemplated by the Migration Act 1958 (Cth). The applicant was not relevantly deprived of an opportunity to put his case forward in whatever way he wished, nor was he denied an opportunity to put relevant material forward. The decision-making process did not prevent the opportunity of putting security forward as a possible means of securing a favourable outcome or stating why security was not needed. Rather, the applicant was told that his proposal was rejected because the DCO was not satisfied that the promise of a further loan and shortened time frame for payment of instalments was sufficient to alter the views which had subsisted in relation to the First Proposal, and he was specifically directed to the forms of security which were most likely to be regarded as satisfactory. As a practical matter, this invited the applicant to consider putting forward a proposal which offered security or to provide some other proposal which was satisfactory. In the ordinary course and in light of the history between the DCO and the applicant and Rediform, this is what might have been expected to occur.
87 The general statements of principle in Alphaone may be accepted, although it is preferable to express the content of what procedural fairness requires by reference to the particular case and the particular statutory context rather than through generalised statements of principle, the precise application of which is necessarily dependent upon the particular statutory scheme. Those principles were not breached in their application to the circumstances of this case, which turns on a quite particular statutory scheme.
88 Even if I had concluded that there was an obligation to afford the applicant an opportunity to be heard in relation to whether security was required or might be available to satisfy the decision-maker that the power under s 255-15(1) should be exercised, I would have declined relief because no relevant "unfairness" was demonstrated. The applicant has not shown that there was any "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 at [34], [37], per Gleeson CJ. If the applicant wanted to address the issue of security or offer security, he has at all times been able to do so.
89 Further, the utility in making an order remitting the matter to the Commissioner is highly questionable. The applicant continues to be at liberty to submit a further instalment proposal addressing the issue of security or offering security. That is the equivalent result he would achieve if he were successful in obtaining relief from this Court (given that I also reject grounds 2 and 3 for the reasons given, and as indicated, below).
90 Accordingly, this ground fails.