Kioa v West continues to be relevant, but procedural fairness obligations now require decision-makers to do more
One of the lasting legacies from Kioa v West, as it has been applied and evolved in subsequent cases, is that it is now generally accepted that all administrative decisions which affect rights, interests and legitimate expectations carry with them a duty to accord procedural fairness.
Decision-makers should therefore assume that all decisions attract procedural fairness obligations unless there is a clear and contrary statutory intention. The question is what those obligations require in any given case, given that the contents of the duty to afford procedural fairness depend on the relevant statutory provisions and the circumstances of the particular case. Considerations for decision-makers include:
- Who is affected by the decision: All those whose rights, interests and legitimate expectations are directly affected by the decision should be afforded procedural fairness.
- What needs to be given in the procedural fairness process: Persons who may be adversely affected by a decision should be notified of the case against them, including the substance of any adverse allegations or information that is credible, relevant and significant and on which the decision-maker may rely. Decision-makers should also have regard to any relevant statutory provisions which may expand, exclude or limit the requirements of procedural fairness.
- When the procedural fairness process should be commenced: The procedural fairness process should be commenced as early as possible to ensure that persons who may be adversely affected by a decision are accorded a proper opportunity to present their case. The time given to an affected person to respond will depend on their circumstances.
- Why procedural fairness is important: Procedural fairness means more than simply affording affected persons an opportunity to have their say. Decision-makers should ensure that they give proper, genuine and realistic consideration to any submissions advanced on behalf of a person affected by the decision.
When is there an implied power to delegate statutory functions?
In the absence of an express power to delegate, courts will consider whether the language, scope or object of the statute overrides the principle that the power must be exercised personally. The decision in Northern Land Council v Quall  FCAFC 77 serves as a reminder of the need to carefully construe the relevant statutory scheme as a whole before identifying an implied power to delegate.
In this decision, the Full Court found that there was no implied power for a representative body (the Northern Land Council) to delegate its function to certify Indigenous Land Use Agreements under the Native Title Act 1997. The Court had particular regard to the objects of the legislative scheme, which sought to maximise the participation of Aboriginal persons. While acknowledging that it would pose practical difficulties, the Court found that the proper exercise of the certification function required the Northern Land Council itself to hold the requisite opinion. Furthermore, the Court reasoned that the power of the representative body to do all things "necessary or convenient" for or in connection with the performance of its functions was a strictly ancillary power and did not provide for delegation of the certification function.
Decision-makers should be mindful that an exercise of delegated power may be subject to legal challenge where:
- on its proper construction, the statute confers no power to delegate; or
- the purported instrument of delegation is invalid.
When seeking to delegate statutory powers, decision-makers should:
- seek to rely on express statutory powers of delegation to the greatest possible extent;
- carefully consider whether there are any indicia within the statutory scheme which override the presumption that powers are to be exercised personally;
- not rely only on a provision that allows a decision-maker to do all things "necessary or convenient" for the performance of their functions;
- not assume that there is an implied power to delegate based only on the practical or logistical difficulties of requiring the individual named in the statute to exercise that function personally.
Employment & workplace relations
Industrial manslaughter and what it means for you
Industrial manslaughter laws have quickly gained traction across the country. Such laws apply where a worker has died as a result of the negligent conduct of a person conducting a business or undertaking (PCBU) or employer, and successful prosecutions can result in very significant fines and terms of imprisonment for individuals.
These laws, which have been and will be enacted in most Australian States and Territories, act as a timely reminder for organisations and their officers to be across their work health and safety obligations. The national push behind such legislation demonstrates that now is the time for PCBUs and employers to identify critical or fatal risks and review their systems and controls currently in place to mitigate those risks to ensure they are fit for purpose and effective. The recent introduction of the laws in most jurisdictions reflects the community expectations to deter unsafe work practices. Regulators across the country have said that they will use the new provisions and it is expected that they will continue to take a tough stance on compliance.
We have set out below a table which highlights the industrial manslaughter offences currently enacted, or soon to be enacted, around the nation, and highlights the maximum penalties attributed to the offence. It also notes which jurisdictions are unlikely to pass the laws and their reasons for doing so.
If you would like to know more about how the laws will affect your organisation or need help getting ready for them, please get in touch.
Human rights & privacy
Human Rights Act in Queensland
A new Human Rights Act will commence in Queensland on 1 January 2020. The Act will make it unlawful for public entities to act or make a decision in a way that is not compatible with any of the various enumerated human rights. It will also be unlawful for a public entity in Queensland to fail to give proper consideration to a relevant human right when it is making administrative decisions.
The Queensland Human Rights Act protects and promotes the human rights that are set out in the Act. These rights consist of a range of civil and political rights, including the rights to freedom of expression, privacy and the right to a fair hearing. The Act also includes a right to education and quite uniquely in Australia a right to health services.
The Queensland Human Rights Act is broadly modelled on the Victoria's Charter of Human Rights and Responsibilities and the learnings from that jurisdiction have been very helpful in developing an understanding of how the Act will operate in practice. The Act implements a dialogue model for protecting human rights where different parts of government are encouraged to speak to each other about how to define, protect, and fairly restrict human rights. For example, the Act provides that when new laws are introduced into Parliament, they need to have a statement of compatibility which assesses in detail whether the proposed laws are compatible with the protected human rights under the Act. Further, the Act requires State Courts and Tribunals to interpret statutory provisions in a manner that is compatible with the enumerated human rights.
Many Queensland Government entities have throughout 2019 been undertaking extensive reviews of their current legislation in preparation for the commencement of the Human Rights Act. Queensland public entities are, or need to now be reviewing their existing policies and procedures to ensure that their decision making processes will be consistent with the Act. There is also a need to put in place appropriate mechanisms to deal with any early human rights complaints.
The commencement of the Human Rights Act is a landmark development for Queensland. When it commences on 1 January 2020, Queensland will have the most extensive human rights legislation in Australia and will join Victoria and the Australian Capital Territory as only the third jurisdiction to have stand alone human rights legislation. We expect that in the short term there will be a challenging but very interesting settling in period as Queensland public entities seek to embed a pro human rights culture into their daily administrative decision making processes.
Approaching uniformity in privacy protection: NSW State-Owned Corporations could be covered by the Privacy Act 1988 (Cth)
Mr Paul Lynch MP of the New South Wales Parliament introduced the Privacy and Personal Information Protection Amendment (State Owned Corporations) Bill 2019 as a Private Member's Bill on 14 November 2019. If passed, the Bill will extend the application of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) to State-owned corporations (SOCs) which currently do not need to comply with the Privacy Act 1988 (Cth).
The Privacy Act currently only applies to three NSW SOCs: Essential Energy; Ausgrid; and Endeavour Energy. Each of these SOCs has been prescribed as a NSW authority to which the Privacy Act applies under the Privacy Regulation 2013 (Cth) (see clause 8(1)).
The non-application of the PPIP Act to SOCs is a known gap in the protection of personal information in New South Wales and is an inconsistency in the privacy protections available to individuals. The NSW Law Reform Commission previously recommended that this gap be closed in its report "Protecting Privacy in New South Wales" (Report No. 127). The Australian Law Reform Commission (ALRC) has also noted that the lack of regulation of SOCs in NSW was significant as statutory corporations are covered by privacy legislation in other jurisdictions but not in New South Wales (ALRC Report 108, "For Your Information: Australian Privacy Law and Practice" (2010)).
Mr Lynch introduced a similar Private Member's Bill in 2016 which was opposed by the Government at the time and was not passed. The Bill is yet to be referred to the Selection of Bills Committee to be considered and reported on and the Government has not yet responded to the Bill in Parliament.
SOCs, especially those who deal with large amounts of personal information, should monitor the progress of this Bill through the Parliament in 2020.
Restructuring & insolvency
Anti-phoenixing legislation to go to Senate
The Treasury Laws Amendment (Combating Illegal Phoenixing) Bill, which contains the government's long-awaited anti-phoenixing reforms, has been passed by the House of Representatives and is now set to be considered by the Senate.
Phoenixing activity involves the transfer or sale of assets of a company, often at an undervalue, to another related entity (usually owned and controlled by the same persons), leaving only liabilities in the vendor entity, which is then liquidated. Creditors and tax authorities are left with little prospect of being repaid from the vendor entity.
A report prepared for ASIC, the ATO and the Fair Work Ombudsman (FWO) in 2018 estimated that phoenix activity cost the economy $2.85 to $5.13 billion annually. It creates an unfair advantage for companies which engage in the wrongful activity and can be particularly costly for the Commonwealth Government's Fair Entitlements Guarantee (FEG) scheme, which covers employees’ entitlements left outstanding as a result of failed business enterprises, and for state and federal revenue authorities. Combating phoenix activity is also a priority for law enforcement authorities and workplace regulators such as the FWO and the Australian Building and Construction Commission.
Key features of the Bill are:
- criminal and civil penalties for below-value transactions that prejudice creditors in a liquidation;
- measures to prevent directors from improperly backdating resignations or resigning as the last remaining director; and
- extension of the PAYG and SGC estimates regime and director penalty regime to GST liabilities.
The Bill complements other government initiatives designed to combat phoenix activity, including:
- the Phoenix Taskforce, a successful anti-phoenixing initiative spanning 37 Federal, State and Territory government agencies, which has seen an increase in prosecutions and recoveries;
- the FEG Recovery Program, which funds recovery proceedings for taxpayers' benefit; and
- the ATO phasing in single touch payroll reporting.
We will publish a further update after the Senate considers the Bill.