Case: Kioa and Others v West and Another [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: followed
applicants contend that whether the QTB itself was before the Finance Minister or merely a summary of the QTB as set out in the Issues paper is irrelevant. In either event the applicants were given no opportunity to address material which was adverse to their application. The applicants submit that procedural fairness required that the Finance Minister should have provided the applicants with the opportunity of responding to the material in the QTB prior to making his decision since the information in the QTB was 'credible, relevant and significant' : see Kioa and Others v West and Another [1985] HCA 81 ; (1985) 159 CLR 550 at 629. The Finance Minister acknowledges that neither the QTB nor the description of its comments contained in the Issues paper were provided to the applicants before his decision was made. The Finance Minister states that the QTB was not before him when he made his decision but concedes that he did have a description of its contents in the Issues paper. However, the Finance Minister submits that the QTB was not adverse to the applicants' interests. Additionally the Finance Minister relies upon the broad discretion contained in s 33 and submits that the rules of procedural fairness must be determined in accordance with the circumstances of the particular case: see Kioa at 587 per Mason J. The Finance Minister submits that s 33 conferred a broad discretion as a result of which no occasion arose to engage the rules of procedural fairness. Findings Ground 1 Do the rules of natural justice apply? The threshold questions raised under this ground are whether the rules of natural justice have any application, and, if they do, whether there has been a breach of such rules. Medtest's submission thus requires the Court to consider the scope of s 33 and to determine whether any duty was imposed which required the Finance Minister to provide information to the applicants as claimed. The manner in which the power to make an ex gratia payment under s 33 is to be exercised will determine whether there is a duty to act fairly. Accordingly the legislative provisions investing power in the Finance Minister to make an act of grace payment are critical. In Kioa Mason J observed at 584-5: 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 , 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 circumstance 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 ; National Companies and Securities Commission v. News Corporation Ltd . Footnotes omitted. In Kioa Brennan J at 626 said: Once the threshold question is resolved and it is established that the exercise of a power is conditioned on the observance of the principles of natural justice, the content of the principles to be observed is determined in the light of the particular circumstances. At 628 his Honour said: 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. A basic consideration of the rules of natural justice demands that a party who is to be affected by a decision be afforded an opportunity to comment upon information which is 'credible, relevant and significant' to that decision. In Kioa at 628, Brennan J said: 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 Malaya ; Ridge v. Baldwin , per Lord Morris; De Verteuil v. Knaggs . 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 information contained in the QTB summary was before the Finance Minister when he reached his decision and his decision was based upon the Issues paper containing the QTB summary. Such information related to a critical issue for the applicants in their claim for an act of grace payment since the conduct of the Minister for Health both inside and outside of Parliament was the subject of major complaint and criticism by the applicants. No opportunity was provided to the applicants to comment upon the QTB summary and they were not provided with an opportunity to be heard on an issue which was credible, relevant and significant to the Finance Minister's decision as per Kioa at 587. The Finance Minister's submission, taken at its highest, seems to suggest that because of the broad discretion under s 33, natural justice did not require him to furnish the applicants with any of the material that he would rely upon. However he did provide the applicants with the material before him in accordance with their request. Inferentially, such material was the only material which the Finance Minister would rely upon to make his decision yet the QTB summary was omitted.