Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: applied
However, counsel for Billabong points to the well-known statement of principle of Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 that a person affected by the exercise of the power should be given an opportunity to deal with any adverse information that is "credible, relevant and significant" to the proposed decision. His Honour continued by saying: "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." 36 Counsel for the Registrar, Mr McCarthy, accepted that the provisions of s 487 of the Corporations (Aboriginal and Torres Strait Islander) Act were engaged and that the exercise of the Registrar's power was conditional upon observance of the rules of natural justice. He referred to well-known authorities which make it plain that procedural fairness is a flexible obligation to adopt fair procedures that are appropriate to the circumstances of the particular case: eg Kioa v West (1985) 159 CLR at 585, 612-613. 37 Plainly enough, the effect of s 71 of the Act and the applicable transitional provisions of the CATSI Act is that Mr Armstrong, as the relevant delegate, must be satisfied, after considering the material before him and the submissions or representations made by Billabong, that the grounds referred to in the Act have been established. 38 It is almost trite law that the rules of procedural fairness entitle a person in Billabong's position to know the grounds upon which Mr Armstrong proposes to rely and an opportunity to respond to matters adverse to its interests: Kioa v West at 585, 628; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [140] , [191]. 39 This does not mean that every piece of information and every document that comes before the decision-maker must be disclosed. The test to be applied in the ordinary case is that stated by Brennan J in Kioa v West at 629 in the words referred to above, namely that the person affected should be given an opportunity to the deal with adverse information that is credible, relevant and significant: see also Miah at [140], [191]. 40 Where there is credible, relevant and significant material before the decision-maker, it will not ordinarily be sufficient for the decision-maker to disavow reliance upon it. The significance of the material is to be determined leaving aside the disavowal, but a merely theoretical possibility of prejudice to the person affected will not be sufficient to require disclosure: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council (2001) 115 FCR at [94]; Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 at 353; McLachlan v ASIC at [50]. 41 What underlies these principles is the real risk of prejudice to the person affected by the subconscious influence of non-disclosed material, albeit that reliance is expressly disavowed by the decision-maker: Kioa v West at 629; NIB Health Funds Ltd v Private Health Insurance Administration Council at [94]; Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 at 552. 50 The approach urged on me by counsel for Billabong would be to "over-judicialise" the process of administrative decision-making: Bushell v Secretary of State for the Environment [1980] UKHL 1 ; [1981] AC 75 at 97; Kioa v West at 628-629. Indeed, it goes beyond an application for discovery because it requires access to the Registrar's entire file. There is no basis for such an order.