Case: Kioa v West (1985) 159 CLR 550
Outcome: followed
is a well established principle that a statute will not be construed as excluding the operation of common law principles such as the obligation to accord natural justice or procedural fairness in appropriate circumstances unless there is a clear and unambiguous statement or inference to that effect to be extracted from the relevant legislation. In Kioa v West (1985) 159 CLR 550 Mason J said at 584 - 585: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd v Federal Commissioner of Taxation (1) Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v Commonwealth Conciliation and Arbitration Commission ; Ex parte Angliss Group (2) ; National Companies and Securities Commission v News Corporation Ltd (3) . ... When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned." With that background I consider that there is a serious question to be tried that the Minister has not accorded the tenants natural justice or procedural fairness at this point in time in relation to her proposal to give a notice under s 47. The proposal to give the s 47 notice was first raised or articulated clearly by the Minister in the letter of 24 May 2009. Prior to that time there had been numerous consultations and dialogue between the Minister and the representatives of the Housing Associations and the tenants but that was in relation to the proposal that the Housing Associations enter into 40 year sub-leases. Whether the Minister has accorded the tenants natural justice or procedural fairness in relation to her proposal to give a notice under s 47 is to be determined by her conduct and the conduct of her department on and after 24 May 2009. I consider there is a serious question to be tried that the media release, the letters sent by the Minister to the Council and to the Housing Associations, the meetings held subsequently with some of the tenants and other persons and the leaflet distributions have not been sufficient to discharge the Minister's obligation to bring to the attention of all the tenants the manner in which the proposed notice will affect their rights. There is also a serious question to be tried that they have not been given a proper opportunity to make submissions to the Minister. I am not satisfied that a process or procedure has been adopted whereby sufficient attempts were made to bring these matters to the attention of all the tenants. The evidence before me is insufficient to satisfy me that all the tenants have been given an opportunity to make submissions to the Minister and have had fairly and squarely put before them the consequences of the Minister giving a notice pursuant to s 47. The leaflets do not make it clear that the tenants' rights to occupy their properties by way of sub-leases will be extinguished forever. Further, this was not made clear at the meeting on 29 June 2009 or in the leaflets that were distributed in the town camps. I accept the Minister's submission that the content of natural justice is to be determined by reference to the circumstances of the case: Kioa v West [supra]. In my view, there is a serious question to be tried that the content of the natural justice principle in the circumstances of this case requires that the tenants be told directly, and not indirectly through the Housing Associations or the Council, that a consequence of the giving of the notice is the extinguishment of their rights to occupy their houses. The Minister submitted that a decision to acquire land by compulsion might in the ordinary case be regarded as having grave consequences for a person holding an interest in the land but that in the present case the evidence disclosed that the practical effect of a decision by the Minister to acquire the land pursuant to s 47 was substantially different to the ordinary case. The Minister submitted that the reality was that there would only be a beneficial impact on the living conditions of the town camp inhabitants. The difficulty with that submission is that it ignores, or it does not take into account, the fact that there will be an extinguishment of tenants' rights of occupation of their houses. To submit, as the Minister did, that "subject to new tenancy agreements being necessary, no other legal rights of the applicant or group members are impacted", is to ignore the fact that enforceable rights are being replaced with an opportunity to negotiate a new tenancy agreement which opportunity depends upon agreement between two parties. The next inquiry to be made is whether the balance of convenience is in favour or against the grant of an injunction. I am satisfied that the balance of convenience is in favour of granting an injunction restraining the Minister from giving a notice pursuant to s 47 until such time as the Court can be satisfied that: (a) the tenants have been given clear and unambiguous information that if the notice is given their tenancy rights over the land they occupy pursuant to their sub-leases will be extinguished forever; and (b) the tenants have been given the opportunity to make submissions to the Minister after they have been given this information. I do not intend to prescribe the process which the Minister should undertake in order to discharge her obligations to accord the tenants natural justice or procedural fairness. What I am disposed to do is to grant an injunction restraining the Minister from giving a notice pursuant to s 47 until further order. Such an injunction will enable the Minister to take such steps as she may consider, or she may be advised, will bring to the attention of the tenants the consequences of the giving of the notice and will give them an opportunity to make submissions to her. The injunction will be cast in terms restraining the Minister from giving a notice until further order. It will not be cast in terms restraining the Minister from taking any steps in and towards the giving of the notice.