Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: considered
In Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 (' Kioa '), Mason J (as he then was) (at 582) referred to the fundamental rule of the common law doctrine of natural justice that, generally speaking, a person is entitled to know the case against him and to be given an opportunity of replying to it. Brennan J (at 612-616) referred to the authorities to the effect that the content of the rules of natural justice will depend on the circumstances of the particular case, including the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Brennan J considered whether there was an irreducible minimum required by the principles of natural justice, namely, that 'the person concerned should have a reasonable opportunity of presenting his case' ( Russell v Duke of Norfolk [1949] 1 All ER 109 per Lord Tucker at 118). Brennan J said (at 615-616): 'Yet Tucker LJ said in Russell v Duke of Norfolk [179] , that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case " . If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.' 99 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.