Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
The High Court said that the common law principles of procedural fairness required the Tribunal to advise the applicants of the substance of the allegations in the letter. The Tribunal was not required to give the applicants a copy of the letter or provide any information which would have identified the author of the letter (at [7]). The Court referred to certain statutory provisions, but said that in the circumstances the case was to be decided by reference to the common law principles of procedural fairness. The Court referred to the reasons for judgment of Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 628-629. The Court concluded that the Tribunal had an obligation to draw the applicants' attention to the information in the letter. The Court then said (at 98 [22]-[23]): "The fact that the author of the letter asked the Department to keep it secret did not mean that equitable principles about confidential information were to be engaged in deciding what course the Tribunal took. Rather, the nature and extent of the Tribunal's obligation to disclose the information were regulated by the Act and the obligation to accord the appellant procedural fairness. In this case, the particular content of the obligation to accord procedural fairness was to be identified having regard not only to the particular provisions of the Act that regulated the Tribunal's work but also to the scope and objects of the Act as a whole. In that latter regard, it is necessary to keep two propositions at the forefront of consideration. First, the Act required that those entitled to a particular visa be granted the visa they sought, and that those not entitled be refused. Secondly, the Act committed the decision to grant or refuse a visa to the Executive government and the Tribunal was likewise exercising executive power, not judicial power." 57 The Court said that there was a public interest in the Executive government, when making its decision, not being denied information that has been or may later be supplied by an informer (at 98 [24]). That public interest and the rules of procedural fairness could be accommodated by a requirement that the applicant be advised of substance of the allegations and asking him to respond to those allegations (at 100 [29]). The Court concluded that the Tribunal had not complied with the rules of procedural fairness. 58 The decision in VEAL suggests that in this case the Minister was obliged to disclose to the applicant the substance of the information in the Parole Board reports. The Minister sought to meet the difficulty caused by the fact that he had not done so by submitting that the obligation did not arise in this case because the information in the Parole Board reports was either information from the applicant, or was information which was not adverse to the applicant or was information he already had from other sources. The other sources identified by the applicant were a report of Mr Sowerbutts dated 29 August 2006 and Ms Beevor's report. A decision-maker's obligation of disclosure where the common law rules of procedural fairness apply has been discussed in a number of cases. I need go no further than refer to the two well-known decisions of Kioa v West (supra) at 628-629 per Brennan J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 588-592. 59 In this case the Minister presented a schedule of the information in the Parole Board reports and of where he said it either came from the applicant, or was not adverse or was known to the applicant from other sources. The Minister did not submit that there was not information in the Parole Board reports which was "credible, relevant and significant to the decision to be made" ( Kioa v West (supra) at 629 per Brennan J). There are obvious difficulties with the Minister's submission. For example, unless the same words are used, it will sometimes be difficult to determine if the information provided by the applicant or said to have been available from another source is actually the same information which the applicant claims ought to have been disclosed. 60 In this case, there clearly was information in the Parole Board reports which was adverse and was not provided by the applicant or to him from other sources. That information related to concerns about where the applicant proposed to live in relation to his victim. The substance of that information should have been disclosed to the applicant. The applicant now has the Parole Board reports and it is not necessary for me to go further and express a conclusion in relation to each piece of information in the Parole Board reports. 61 The applicant has established a breach of the rules of procedural fairness. 62 The applicant submitted that by reason of the decision-maker's conduct he was denied the opportunity to put his case and has been denied procedural fairness. Of course, the Minister and the officers of his Department did not prevent the applicant from putting forward whatever information he considered appropriate; in fact, he was encouraged by an officer of the Minister's Department to put his best foot forward. However, his case is that by reason of a representation made to him he did not put forward all the information he would otherwise put forward. 63 Two decisions of the High Court have dealt with the question of whether there had been a breach of the rules of procedural fairness in circumstances where an applicant, as a result of something said by the decision-maker, did not present to the decision-maker all of the evidence and submissions he would otherwise have presented.