Case: Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: referred to
Finance Minister submits that procedural fairness does not require that every piece of information that might potentially be used adversely to another person's interest must be provided. Rather, the obligation to provide procedural fairness is limited. Reliance is placed upon the observations of McHugh J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 311-312 wherein his Honour observed (in his dissenting judgment): In the absence of a clear contrary legislative intention, those rules require a decision-maker "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". Footnotes omitted. His Honour's decision has been recently approved by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [81] - [83] . Whilst observing that not every adverse piece of information needs to be put, his Honour said at 629: 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. See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 72 ; (2005) 225 CLR 88 at [17] . In Teoh at 311 McHugh J (in dissent) said of the rules of procedural fairness: In the absence of a clear contrary legislative intention, those rules require a decision-maker 'to bring to a person's attention the critical issue or factor on which the administrative decision on which is likely to turn so that he may have an opportunity of dealing with it'. Footnotes omitted. The solicitors for the Finance Minister provided information which was incomplete because of the absence of the Issues paper containing the QTB summary. The information contained in the QTB summary referred to the Minister for Health's state of knowledge. Such knowledge was directly relevant to the applicants and because of the reference to controversy surrounding another pathology provider was potentially prejudicial to the applicants. In this sense, the information was personal to them; see Mason J in Kioa at 587. To similar effect, McHugh J in Teoh at 311-312 in his dissenting judgment said ' The question becomes, what does fairness require in all the circumstances of the case? ' The Court does not accept that the mere fact that the discretion granted under s 33 is broad and describes no procedure for its exercise has the consequence that natural justice absolved the Finance Minister from the requirement to furnish the applicants with the material upon which he would rely. Even if it did, it is not sufficient for the Finance Minister to give the applicants the impression they were in possession of all the material upon which he would rely when this was contrary to the fact. By purporting to comply with the applicants' request that they be furnished with all information, the Finance Minister is not entitled to claim that the operation of s 33 had the consequence that he did not have to furnish them with any material at all. In these circumstances fairness required that the QTB be provided: see McHugh J in Teoh at 311-312 as extracted in paragraph [62] of this judgment. Natural justice required that such document be put before the applicants to allow them an opportunity to respond to it before any decision was made under s 33. This is especially so in view of the repeated requests by the applicants that they be furnished with the exact material that would be relied upon to enable them to comment upon it. The failure to provide the summary to the applicants has resulted in a breach of the rules of natural justice. Ground 2 Failure to consider the totality of the applicants' claims The applicants submit that the Finance Minister failed to have regard or proper regard, to important integers of the applicants' claim, namely that the Health Minister wrote to the NSW Health Minister and that the Health Minister directed the HIC to write to all New South Wales medical practitioners to inform them of NATA's concerns ('the two integers').