Breach OF Procedural Fairness PDF

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INTRODUCTION A decision to fast track development of a large paper pulp mill on the Collie River has been made by the minister pursuant to the Industrial (Fast-tracking of Proposals) Act 2010 (WA) (‘the Act’) which also requires a report and recommendations to be made to the Minister by a Board. A small cooperative of organic farmers (‘the Co-op’) in the Bucolic valley claim pollution from the mill will destroy their organic certification therefore impinging on a property right and their livelihoods. The Co-op wants to challenge the Minister’s approval on the basis they have been denied procedural fairness.

BASIS OF A CLAIM TO PROCEDURAL FAIRNESS The decision is made under a West Australian Act so the fundamental basis is a common law right to procedural fairness. There is a common-law duty to act fairly … in the making of administrative decisions that affect rights, interests and legitimate expectations.1 A loss of a property right financial interest or reputation will imply a basis to claim procedural fairness. 2 The impact must be direct and unique to an individual rather than a large class of persons. 3 There is a legitimate expectation that an investigative process set out in an Act will be followed.4 A legitimate expectation can arise out of the decision making process itself taking into account matters adverse to the applicant.5 Unfairness must be a practical injustice6, but procedural fairness is concerned only with the decision making process not any substantive outcomes.7 The co-op can argue (in the alternative) that the basis of their claim is an administrative decision affecting their property rights and financial interest because they will lose their organic certification. The impact is unique to the coop because the pollution affects their organic certification in a unique way. That there is a legitimate expectation the act will be followed and the board will have to afford natural justice. The problem for the coop with this argument is that the courts could say the rights they are claiming to lose, their certification, is a substantive issue since the board did not accept their AEIR claiming this effect. A substantive matter is not a basis for a procedural fairness review. It could be prudent to also argue the process itself gave rise to a legitimate expectation that matters adverse and particular to the coop should be considered, the pollution and petition in particular. Also to submit that their interests and reputation may be affected in a unique way by having an organic coop in close proximity to a pulp mill due how their target market would perceive this, regardless of the substantive effects of the pollution, immediately on the making of the decision. Considering all three claims alternately as a basis to procedural fairness it highly likely a legal basis exists. 1 Kioa v West (1985) 159 CLR 550,559. 2 Cooper v Board of Works for the Wandsworth District (1863) 143 ER 414. 3 Kioa v West (1985) 159 CLR 550. 4 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 170 CLR 648. 5 Kioa v West (1985) 159 CLR 550. 6 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1. 7 Attorney-General (NSW) v Quin (1990) 170 CLR 1.

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SCOPE OF THE PROCEDURAL FAIRNESS DUTY The scope of procedural fairness is flexible and depends on the circumstances of the case. 8 Mason J identified the following major common administrative circumstances to determine what’s required to afford procedural fairness in specific cases.9 The nature of the property right, interest or reasonable expectation, the greater this is the more onerous the requirement for procedural fairness.10 The coop believe their organic certification is at stake which is a significant pecuniary interest as well as up to 20 years of preparation, this would suggest their right to procedural fairness is significant. The impact of the decision, this may present a problem to the coop because the impact they wish to challenge was not the impact accepted by the board and a challenge of a substantive outcome is not a procedural fairness issue. 11 But the facts do state the ministers approval set only very limited environmental conditions, if they differ from the EIR model used by the board the impact will differ and this would add weight to the coops right to procedural fairness review. 12 The statutory framework and the statutory factual criteria require the board hearing stage 13, the board to observe the rules of natural justice 14, and provides that the parties can be represented any way the board sees fit. 15 The minister must then consider the recommendations of the board and any other relevant matters (factual criteria). The common law provides that if a procedure is commensurate with some of the rules of natural justice it doesn’t displace any wider application of procedural fairness. 16 Procedural fairness is only limited by clear manifestation of legislative intention. 17 In Haoucher 18 Deane, Toohey and Mason JJ held that procedural fairness required the right to be heard in the second stage decision making process to address new questions of fact. Dawson and Gaudron JJ dissenting stated procedural fairness had been afforded in the first stage, with the final decision made based on the same facts. In the coops case the board stage requires by statute and common law a high degree of procedural fairness. The coop can be represented by anyone the board sees fit , but there is no express legislation against procedural fairness on the issue of representation so it should be fair. Even though procedural fairness is statutorily required at the board stage, this doesn’t displace the potential need for a wider application of procedural fairness at the ministerial 8 Kioa v West (1985) 159 CLR 550. 9 Kioa v West (1985) 159 CLR 550, 584-5. 10 Johns v Release on Parole Board (1987) 9 NSWLR 103. 11 Attorney-General (NSW) v Quin (1990) 170 CLR 1. 12 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 170 CLR 648. 13 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s4-5. 14 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s6(2). 15 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s6(3). 16 Annetts v McCann (1990) 170 CLR 596. 17 Kioa v West (1985) 159 CLR 550. 18 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 170 CLR 648.

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stage. Further the reasoning in Haoucher 19 case as to whether both stages of a decision were required to afford procedural fairness turned on whether the final decision was based on the same body of facts. This coupled with the statutory factual requirement that the minister consider “any other relevant matters” and the fact that he received a petition after the board stage suggest the minister is and should be considering the matter on a different set of facts and the coop has a right to be heard in regards to the petition. Regarding the special circumstances in which the decision was taken and the status of the decision maker. The very purpose of the Act is to expedite the process of major infrastructure planning and approval. The requirements of procedural fairness must not frustrate the purpose of the Act.20. The minister is the decision maker and he may have to sublimate procedural fairness afforded to an individual to consider public policy. 21 This policy consideration overlaps with the purpose of the Act. These 2 factors limit the procedural fairness that can be afforded. On the basis of the Act and quoted case law, in the circumstances of this case it is likely procedural fairness requires the board stage be conducted with an onerous duty of procedural fairness (including the issue of representation) and that the coop get a limited opportunity for procedural fairness in the ministerial stage to answer submissions made to the minister after the board stage that are credible relevant and significant. 22 Also the coop has a procedural fairness claim if the minister departed from the recommendations of the board.23

BREACH OF PROCEDURAL FAIRNESS The first issue is whether refusal to allow the coop to be represented by a solicitor amounts to a breach of procedural fairness since Marry Brillantine is an experienced lawyer. The Act does state that the board may allow any party to be represented in any manner it sees fit.24 It also states that the board shall observe the rules of natural justice. 25 There is a common law duty to act fairly limited only by clear manifestation of legislative intention 26 , and ‘the rational of the strong presumption of procedural fairness in the exercise of statutory power is to be found in … ordinary notions of what is just and fair.’ 27 It must be a practical unfairness to be a breach.28 Although the board can allow any party to be represented as it sees fit there is still a statutory and common law requirement that representations be procedurally fair, in the ordinary notions of what is fair and just. It seems most unfair that a lawyer of 15 years experience be matched 19 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 170 CLR 648. 20 Twist v Council of the Municipality of Randwick (1976) 136 CLR 106 . 21 Minister for Arts Heritage and Environment v Peko Wallsend (1987) 15 FCR 274. 22 Kioa v West (1985) 159 CLR 550. 23 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 170 CLR 648. 24 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s6(3). 25 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s6(2). 26 Kioa v West (1985) 159 CLR 550. 27 Deane J per Haoucher v Minister for Immigration and Ethnic Affairs (1990) 170 CLR 648. 28 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.

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up against an organic farmer in a process of cross examinations and closing addresses. Ultimately Pulps proposal was believed over the coops due to superior advocacy skills of Brillantine regardless of substantive contents of the reports this did represent a practical unfairness to the coop. It is likely that Brillantine, being a very experienced lawyer and the coop being refused legal representation amounts to a breach of procedural fairness. The second issue is whether not giving the coop notice of the petition in favour of the proposal and not giving the coop an opportunity to respond or be heard at all in the ministerial stage of process amounts to a breach of procedural fairness. It is assumed from the above discussion that some limited level of procedural fairness is to be afforded at this stage. The minister may approve or decline the development subject to condition or otherwise. 29 But is also required to consider the board’s recommendations and any other relevant matters. 30 A party should have the opportunity to respond to adverse findings. 31 It is not necessary to prove material requiring disclosure actually affected the decision. 32Any rights to disclosure may be limited by having to balance third party interests.33 Although the minister can subject his approval to conditions he is required by statute to consider any relevant matters, the co-op may have relevant matters to bring up with respect to the petition, but they have had no opportunity to consider or comment on it and as stated in Kioa it needn’t be proved that the material actually affected the decision. There is no third party interest limiting disclosure. The coop should have the right to respond to the petition if it is adverse and it should at least be disclosed to them even if it’s not. On this basis it is likely the minister denied the coop procedural fairness by not allowing them to answer the petition.

BIAS The issue of imputed bias turns on whether the fact that approval of the proposal will create jobs and generate money in the minister’s electorate coupled with the statements in the press praising the pulp mill proposal amount to an appearance that the minister had prejudged the proposal. The expression of an opinion doesn’t necessitate imputed bias. 34Imputed bias is judged by how the decision and process may appear. 35 It is dependent on whether a fair minded reasonable person would apprehend the decision maker has an interest or prejudice to the outcome. 36 ‘[N]eccesity can impose on public office holders a duty of decision-making from which they would otherwise be disqualified because the law assumes that the decision will be made and defines who alone may make it.’ 37A minister is ‘entitled to be forthright and open 29 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s7(2). 30 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s7(1). 31 Newscorp Ltd v National Companies and Securities Commission (1984) 5 FCR 88. 32 Kioa v West (1985) 159 CLR 550. 33 Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88. 34 R v CommonwealthConcilliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546. 35 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. 36 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259. 37 Per Kirby J Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

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about the administration of his portfolio which … is a matter of continuing public interest and debate.’38 There may be some gravity to the notions that a fair minded person could apprehend that the minister has an interest in the outcome of the proposal. It would mean jobs and money flowing to his electorate which most likely translates into votes. The decision and process may also appear prejudiced to a fair minded person by the ministers positive comments to the press on the mill and comment ‘lead the SW away from over dependence on small scale agriculture’ which the Co-op are . But the minister is required by law to make the decision. 39 This raises the threshold of disqualification compared to a case like Livesy40 where the merest inference of perceived bias was enough to disqualify the judges who convicted his article clerk. Plenty of other judges were available. Furthermore the minister is entitled to be forthright about his departments polices and to express opinions. His press release is a combination if these 2 things. The Minster is within his rights to express opinions and advocate his party’s policies. Some apprehension of bias is possible here but it is unlikely a reasonable person would have reasonable apprehension of bias on the minister’s behalf beyond the threshold required in this context.

CONCLUSION The coop were denied procedural fairness (i) (ii)

In the board hearing due to a lack of representation and an experienced lawyer repressing Pulp. In the ministerial stage because they had no opportunity to be heard on relevant matters.

BIBLIOGRAPHY 38 per Gleeson CJ & Gummow J Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. 39 Industrial (Fast-tracking of Proposals) Act 2010 (WA) s7(2). 40 Livesy v NSW Bar Association (1983) 151 CLR 288.

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A Books Cane, Peter and Leighton McDonald, Principles of Administrative Law: Legal Regulation of Governance (Oxford University Press, 2008) Withnall, Sarah and Michelle Evans, LexisNexis Study Guide: Administrative Law (LexisNexis Butterworths, 2010)

B Cases Annetts v McCann (1990) 170 CLR 596 Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Cooper v Board of Works for the Wandsworth District (1863) 143 ER 414 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 170 CLR 648 Johns v Release on Parole Board (1987) 9 NSWLR 103 Kioa v West (1985) 159 CLR 550 Livesy v NSW Bar Association (1983) 151 CLR 288 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Arts Heritage and Environment v Peko Wallsend (1987) 15 FCR 27 Newscorp Ltd v National Companies and Securities Commission (1984) 5 FCR 88 R v CommonwealthConcilliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Twist v Council of the Municipality of Randwick (1976) 136 CLR 106

C Legislation Industrial (Fast-tracking of Proposals) Act 2010 (WA)...