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14 Nov 2019

Administrative law mythbuster no 02: Kioa v West

By John Carroll, Cain Sibley, Rachel Noronha

Kioa v West continues to be relevant, but procedural fairness obligations now require decision-makers to do more.

What people think Kioa v West (1985) 159 CLR 550 means

Mr Kioa, a Tongan citizen, entered Australia on a student visa; his wife and child soon followed him. He was then granted a temporary entry permit valid for three months, after which he applied for an extension.

The then Department of Immigration and Ethnic Affairs was not able to contact Mr Kioa and assumed that he and his family had returned to Tonga. In fact, he had remained in Australia, following a cry for financial help from his family in Tonga; he remained employed and he and Mrs Kioa had another child. Fifteen months after he was due to leave, Mr Kioa was arrested.

A submission was prepared for a delegate which recommended that Mr Kioa be deported. In part, the submission said:

"Mr Kioa's alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia's immigration laws must be a source of concern."

Mr Kioa was not given an opportunity to respond to that allegation. The delegate accepted the recommendation in the submission and proceeded to exercise the power in section 18 of the Migration Act 1958 to order the deportation of Mr and Mrs Kioa.

The Kioa's sought judicial review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth), saying the delegate had failed to afford them natural justice by failing to disclose and provide them with a fair opportunity to comment on adverse information in the Department's submissions. The High Court agreed.

Following Kioa, decision-makers need to go back to that case to determine if procedural fairness is required.

So that's not right?

No, not quite.

What you need to remember about Kioa v West

While the majority of the High Court adopted different reasons to arrive at the conclusion that natural justice obligations were owed in the particular circumstances of Kioa v West, it is Justice Mason's comments which have had a lasting impact:

"The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?"

One of the lasting legacies from the High Court's decision as it has been applied and evolved in subsequent cases is that it is now generally accepted that all administrative decisions which affect rights, interest and legitimate expectations carry with them a duty to act fairly, in the sense of according procedural fairness (subject to any clear contrary statutory intention).

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. Some 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 the 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; and
  • 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 and obtain any further evidence, if required.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.