Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: considered
In Kioa , it was also made clear that an applicant entitled to natural justice is entitled to be told of adverse information obtained by the decision-maker from third parties and which he or she proposes to take into account and to be given the opportunity to respond to that information. Brennan J referred to the obligation and identified its limits in the following passage (at 628-629) (footnotes omitted): 'A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malay ; Ridge v Baldwin per Lord Morris; De Verteuil v Knaggs . The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary : "To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair." Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice.' The principle referred to in this passage is well established and, for present purposes, needs no further elaboration (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (' Alphaone ') at 590-591. 100 The principles governing the applicant's third submission are relatively clear, although they can give rise to difficulties in terms of application. Ordinarily, a decision-maker is not required to invite comment from an applicant as to the decision-maker's provisional views or mental processes ( F Hoffman-La Roche and Co AG v Secretary for Trade and Industry [1975] AC 295 per Lord Diplock at 369). However, a decision-maker may be under an obligation to invite comment from an applicant on an adverse conclusion based on known material if that conclusion is not an obvious and natural conclusion from that material. In Alphaone , the Full Court of this Court (Northrop, Miles and French JJ) put the matter in the following way (at 591-592): 'Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.' 102 The principle was referred to in passing by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 219 [21] - [22] (footnotes omitted): 'Further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. It may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. That stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the Submission. Further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". Reference was made by the prosecutor to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd . Nothing there said supports any different conclusion to that just expressed. The Full Court's statement of principle was as follow: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."' 103 Alphaone was also referred to in the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. That case raised a question as to whether the Refugee Review Tribunal had advised, or sufficiently advised, an applicant for review of matters it relied on in dismissing the application. The case turned on the obligation of the Tribunal under s 425 of the Migration Act 1958 (Cth) and the facts of the case. The Court did make some observations about what was said to be a dichotomy between an obligation to advise of adverse conclusions which have been arrived at which would not obviously be open on the known material, and the lack of an obligation to advise of a decision-maker's mental processes or provisional views. After referring to the passage in Alphaone set out in [100] above, the Court said (at [30], [31] and [32]) (footnotes omitted) : 'Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision? Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. In Alphaone the Full Court rightly 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." (emphasis added) The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to "the issues arising in relation to the decision under review". (emphasis added) The reference to "the issues arising in relation to the decision under review" is important.' Towards the end of the reasons for judgment, the Court made the following observation (at [49]): 'Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone . It would neither be necessary nor appropriate to now foreclose that possibility.'