Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: applied
what has become a seminal Australian exposition on the subject of procedural fairness, Mason J, in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 585, remarked of the expression that it "conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case". It is not difficult to see how, in the context of operational service in times of a large scale deployment of the Australian Army, the content of a procedural fairness obligation in respect of a redress complaint either as initially made or on referral may in some cases be very limited indeed. In the present case, though the occasion for the initiation of termination procedures arose from incidents on operational service, the decision making process occurred in more benign circumstances in Australia. There is nothing in the circumstances which would suggest that any attenuated procedural fairness obligation attended BRIG Bornholt's consideration of the referred redress complaint. Thus, the assumption of the parties that the making of a decision by him was attended with a procedural fairness obligation which included the affording of a fair opportunity to CPL Millar to know the case made against her and to contradict it is correct. I accept therefore that he was obliged to afford CPL Millar procedural fairness in determining that referred redress complaint. The nature of that obligation though, as Mason J observed, depends on the circumstances of the particular case. In this case, CPL Millar had already been the recipient of a Termination Notice which set out the basis upon which it was proposed to terminate her service in the Army. Only after that notice and an opportunity to respond had been given was the decision to terminate her service made by a delegate of the Chief of Army. In turn, before BRIG Bornholt became involved, CPL Millar had already sought redress from her CO and had the benefit of a reasoned decision as to why her complaint was not upheld. In light of those processes and their outcomes, it is clear that CPL Millar was well aware by then that the reason why a decision had been made to terminate her service on the basis of unsuitability and why her initial grievance was not upheld was a view, supported by the opinion of the Army psychologist CAPT Brown in her report of 15 November 2006 in particular, that, considering her behaviour on operational service in Iraq against the background of her service as a whole, there was a risk that under stress her performance would not be satisfactory. In seeking to have the Chief of Army overturn the termination decision on the review of her grievance complaint she furnished a further report from Mr Zemaitis along with character references from military associates and superiors. Upon referral and as required by Defence Instruction (General) PERS 34-1 Redress of Grievance Tri-Service Procedures made under the Defence Act, a report in respect of the referred complaint was prepared for the Chief of Army's (or delegate's) consideration by the Complaints Resolution Agency within the Headquarters of the Australian Defence Force. It is the report of that agency which came before BRIG Bornholt and which he came to adopt. In adopting that report, its suggested outcome and the reasons as his own BRIG Bornholt adopted a report in which the case advanced by CPL Millar was thoroughly rehearsed and commented upon, as was the process that had led up to the decision to terminate her service and the initial rejection of her redress complaint. No new consideration personal to CPL Millar was introduced by the staff who compiled the report for Brig Bornholt. Neither did he do this of his own motion. In these circumstances, a further passage from the judgement of Mason J in Kioa v West (at 559) is apposite: [T]his is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion (s.7(1)) . In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter ( In re H.K. (An Infant) (1967) 2 QB 617). If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger. 40. In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI is one illustration. Cole v. Cunningham (1983) 49 ALR 123 , is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida (1970) 2 QB 417, at p 431; and Daganayasi v. Minister of Immigration (1980) 2 NZLR 130 . BRIG Bornholt was obliged to investigate the referred complaint. As a senior officer he was able, as would have been the Chief of Army of Army himself, to require staff to prepare a report on the subject. In that regard, the procedure envisaged by the Defence Instruction (General) is not inconsistent with the Defence Regulations in relation to the investigation of a referred redress complaint. Whether he interfered with the termination decision was a matter for the exercise of discretion after investigation. Given the particular way in which the investigation was conducted, effectively on the papers, there was no need to give CPL Millar any further opportunity to be heard before making a decision. At the very latest, the fullness of the case she had to meet, both in terms of expert opinion and underlying reports and service history had been exposed to her in the disposal by her CO of her redress complaint. BRIG Bornholt decided not to uphold her redress complaint not on the basis of new information personal to her obtained from another source and not exposed already to her but on the basis of existing materials. In these circumstances, and contrary to the submission advanced on her behalf, he was not obliged again to revert to her and to offer her an opportunity to comment upon the reasons he proposed to adopt in declining to uphold her redress application. Rather, as is evident from the passage quoted, she, "cannot complain if the authorities reject [her] application because they do not accept, without further notice to [her], what [she] puts forward". I therefore reject the submission that BRIG Bornholt denied CPL Millar procedural fairness in making his decision. A further submission was made that CPL Millar had not been afforded an opportunity to comment upon an assessment made of her by her Squadron Sergeant Major which was taken into account by CAPT Brown in her report. However, as the Respondents demonstrated in their written submissions, by the time that CPL Millar sought the referral of her redress complaint she had had two opportunities to comment upon this assessment, of which she had taken advantage; once in the course of showing cause why her service ought not be terminated and again in the seeking of the referral of her redress complaint. There is no substance in this aspect of her procedural fairness challenge. Neither, when it is recalled that it is the referral decision which is under review is there any substance in her assertion that she was denied an opportunity to comment upon comments made by the Army's Psychological Support Service North Queensland on the subject of her suitability. Those comments were limited to a concurrence with the views already expressed by CAPT Brown and were exposed to CPL Millar in the results of the "Quick Assessment" which was made of her initial redress complaint. An examination of his reasons discloses that BRIG Bornholt approached his task in two particular ways. On the one hand, he examined whether the procedures adopted to date had been appropriate and whether the decisions reached were reasonably open; on the other and in any event he reached his own opinion on the whole of the evidence before him, which included the further evidence provided by CPL Millar in seeking the referral of her redress complaint, as to whether she was, in terms of reg 87(1)(e) of the Defence (Personnel) Regulations , suited to be an enlisted member.