Natural.cls
HIERARCHY
HC-7 "seven justices of the High Court of Australia"
HC-5 "five justices of the High Court of Australia"
HC-3 "three justices of the High Court of Australia"
FCA-FC "the Full Court of the Federal Court of Australia"
NSW-CA "the New South Wales Court of Appeal"
NSW-SC "the Supreme Court of New South Wales"
PC "the Judicial Committee of the Privy Council"
HL "the House of Lords"
Ch "the Chancery Division of the English High Court"
AREA Natural
OPENING "In recent years courts have tended to imply a duty to observe
the principles of natural justice. It has been said that
``[t]he 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.''\footnote{{\it Kioa v. West\/} (1985) 159 CLR 550
at 584 per Mason J.} However, there are some circumstances
in which a duty to observe natural justice will not be
implied: ``the law has not yet reached the stage of applying
the obligation of natural justice to every decision which
disadvantages individuals.''\footnote{{\it Minister for Arts,
Heritage and Environment v. Peko-Wallsend Ltd\/} (1987)
15 FCR 274 at 306 per Wilcox J.}"
RESULTS
Implied "a duty to observe natural justice is implied"
Not-Implied "a duty to observe natural justice is not implied"
ATTRIBUTE % nature of property, right, interest, status, or legitimate
% expectation
AREA Affected
YES "the decision affected the property, right, interest, status,
or legitimate expectation of the applicant" Implied
EXTERNAL Affected
NO "the decision did not affect the property, right, interest,
status, or legitimate expectation of the applicant"
Not-Implied EXTERNAL Unaffected
UNKNOWN "it is not known whether the decision affected the property,
right, interest, status, or legitimate expectation of the
applicant"
ATTRIBUTE % effect or impact of decision
QUESTION "Is the decision apt to have a discrete impact on the
interests of the applicant"
YES "the decision is apt to have a discrete impact on the
interests of the applicant" Implied
NO "the decision is not apt to have a discrete impact on the
interests of the applicant" Not-Implied
UNKNOWN "it is not known whether the decision is apt to have
a discrete impact on the interests of the applicant"
HELP "If the decision affects the applicant differently to the way
in which it affects others then the decision has a discrete
impact on the interest of the applicant. Note that the
applicant must suffer the detriment as a direct and immediate
effect of the decision, not as a contingent result."
ATTRIBUTE % nature of power
QUESTION "Is the power of a nature that would suggest that procedural
fairness would be applied"
YES "the power is of a nature that would suggest that procedural
fairness would be applied" Implied
NO "the power is of a nature that would suggest that procedural
fairness would not be applied" Not-Implied
UNKNOWN "it is not known whether the power is of a nature that would
suggest that procedural fairness would be applied"
HELP "Some prerogative powers by their nature suggest that
procedural fairness would not apply in their exercise
(e.g. international relations, security, defence, emergency).
The exercise of a high-level policy-making power, a broad
unfettered discretion, or (in some circumstances) a power
which is recommendatory only, suggests that procedural
fairness would not apply. However, the exercise of an
administrative power or discretion that has been curtailed by
statute suggests that procedural fairness would apply."
ATTRIBUTE % statutory and factual criteria
QUESTION "Did the statutory or factual criteria focus on matters which
were discrete to the interests of the applicant"
YES "the statutory or factual criteria focused on matters which
were discrete to the interests of the applicant" Implied
NO "the statutory or factual criteria focused on matters of
policy or public interest" Not-Implied
UNKNOWN "it is not known whether the statutory or factual criteria
focused on matters which were discrete to the interests of
the applicant, or on matters of policy or public interest"
HELP "The decisional criteria are of two kinds: the spectrum of
considerations to which the decision maker was authorized to
have regard (the statutory criteria), and the specific
considerations to which regard was had in fact (the factual
criteria). Either set of criteria can focus on matters which
are discrete to the interests of the applicant, or on matters
of policy or public interest."
ATTRIBUTE % nature of the decision-maker
QUESTION "Was the decision-maker a high-level policy-maker"
YES "the decision-maker was a high-level policy-maker" Not-Implied
NO "the decision-maker was not a high-level policy-maker" Implied
UNKNOWN "it is not known whether the decision-maker was a high-level
policy-maker"
HELP "Ministers, members of Cabinet, Governors and the
Governor-General are high-level policy-makers."
ATTRIBUTE % statutory procedural framework
QUESTION "Is there a statutory right to appeal against the decision"
YES "there is a statutory right to appeal against the decision"
Not-Implied
NO "there is no statutory right to appeal against the decision"
Implied
UNKNOWN "it is not known whether there is a statutory right to appeal
against the decision"
ATTRIBUTE % circumstances in which decision made
QUESTION "Were there circumstances which make an obligation to observe
natural justice inappropriate"
YES "there were circumstances which made an obligation to observe
natural justice inappropriate" Not-Implied
NO "there were no circumstances which would have made an
obligation to observe natural justice inappropriate"
UNKNOWN "it is not known whether there were circumstances which made
an obligation to observe natural justice inappropriate"
HELP "For example, a prompt or urgent decision may have been
necessary, or there may have been national security
considerations."
CASE "Commissioner of Police v. Tanos"
"Commissioner v. Tanos"
CITATION "(1958) 98 CLR 383"
YEAR 1958
COURT HC-3
FACTS (YYYYNYN)
RESULT Implied
SUMMARY "a judge had made a declaration that a restaurant run by
Tanos was a ``disorderly house'' pursuant to s. 3(1)(b) of
the Disorderly Houses Act 1943 (NSW). A police inspector had
sworn an affidavit as to his suspicion and belief that liquor
had been unlawfully sold or supplied on the premises and was
likely to unlawfully sold or supplied on the premises again.
The judge made the declaration {\it ex parte}.\par
The stated grounds for the police inspector's suspicion
concerned things that Tanos's husband had done when he had
been running the restaurant. Tanos claimed that things had
changed since she had taken over: ``the patronage of a much
more desirable class of customer was obtained, a class which
would not demand wine with their food.''\footnote{ibid. at
389 per Dixon CJ and Webb J.} Tanos appealed successfully to
the Supreme Court.\par
Dixon CJ, Webb and Taylor JJ held that Tanos's appeal should
have been dismissed by the Supreme Court; once the
declaration was made, the Act placed the burden on Tanos to
prove that liquor had never been sold or supplied on the
premises, and she had not proved that. However, the High
Court also held that, except in exceptional and special
circumstances, an owner/occupier should have an opportunity
to be heard before her/his premises are declared
``disorderly.'' Tanos had been denied that opportunity, so
the declaration was set aside."
CASE "Durayappah v. Fernando"
CITATION "[1967] 2 AC 337"
YEAR 1967
COURT PC
FACTS (YYNNYNN)
RESULT Implied
SUMMARY "following complaints as to the conduct of the Jaffna
Municipal Council, the Ceylonese Minister of Local Government
sent a Commissioner to Jaffna to inquire into the matter.
The Commissioner examined the Council's records, but did not
ask any questions of members of the Council, or give them any
opportunity to put their views to him. The Commissioner
reported to the Minister who, pursuant to s. 277(1) of the
Municipal Councils Ordinance 1947 (Ceylon), made an order
stating that the Council was not competent to perform its
duties and dissolved it.\par
The Mayor of Jaffna (Durayappah) sought writs to quash the
Minister's order and to annul the appointments of the special
commissioners who had taken over the running of Jaffna, and a
declaration that he was the duly elected mayor.\par
The Privy Council held that the Minister had no right to
dissolve the Council without allowing it the right to be
heard. However, the Minister's order was voidable only
after a complaint by the Council. Durayappah (as Mayor) had
no right to complain independently of the Council: he could
only complain if he was representing the Council---and he was
not."
CASE "McInnes v. Onslow-Fane"
CITATION "[1978] 1 WLR 1520"
YEAR 1978
COURT Ch
FACTS (YYYYNNN)
RESULT Not-Implied
SUMMARY "McInnes had held, at various times, licences to promote,
train and act as master of ceremonies in professional boxing.
All his licences were revoked by the British boxing board of
control. He made five unsuccessful applications for a
manager's licence. With his sixth application he requested
an oral hearing and prior notification of anything that might
prevent the area council (to which he applied) making a
favourable recommendation to the board. The board refused
his applications without giving him an oral hearing or
informing him of the case against him.\par
Megarry V-C held that the board was under no duty to provide
reasons to McInnes or to allow him a hearing: ``This is not a
case in which there has been any suggestion of the board
considering any alleged dishonesty or morally culpable
conduct of the plaintiff. A man free from any moral blemish
may nevertheless be wholly unsuitable for a particular type
of work \dots\ In such circumstances, in the absence of
anything to suggest that the board have been affected by
dishonesty or bias or caprice, or that there is any other
impropriety, I think that the board are fully entitled to
give no reasons for their decision, and to decide the
application without any preliminary indication to the
plaintiff of those reasons. The board are the best judges of
the desirability of granting the licence, and in the absence
of any impropriety the court ought not to
interfere.''\footnote{ibid. at 1535.}"
CASE "Bread Manufacturers of New South Wales v. Evans"
"Bread Manufacturers v. Evans"
CITATION "(1981) 180 CLR 404"
YEAR 1981
COURT HC-5
FACTS (YNNNNNN)
RESULT Not-Implied
SUMMARY "the bread manufacturers claimed that an order made by the
Prices Commission was void. The order affected the
classification of bread products and had an incidental effect
on the price of hamburger buns. The bread manufacturers
complained that they should have been given the right to put
their case to the Commission.\par
The Prices Regulation Act 1948 (NSW) provided that a public
inquiry had to be held before an order could be made setting
prices, except where the Minister consented to dispensing
with the inquiry. The Minister had dispensed with an inquiry
before this order was made. Hence, ``[t]he argument that the
Commission was bound to disclose to the [bread manufacturers]
the fact that it proposed to make an order which would have
the incidental effect of reducing the price of hamburger buns
can only succeed if the Commission, although not bound to
hold an inquiry, was bound to observe the rules of natural
justice''.\footnote{ibid. at 414 per Gibbs CJ.}\par
The High Court held that there was no denial of natural
justice in relation to the order, because ``the reduction of
the maximum price in respect of one item was simply a minor
incident in a major revision of the price framework covering
the whole range of bread products. The effect of that major
revision was generally to increase prices. There was, in our
opinion, no obligation on the Commission to give advance
notice of this development or of the possibility of its
occurrence.''\footnote{ibid. at 435 per Mason and Wilson JJ,
with whom Murphy and Aickin JJ agreed on this point.}"
CASE "Nashua Australia Pty Ltd v. Channon"
"Nashua v. Channon"
CITATION "(1981) 36 ALR 215"
YEAR 1981
COURT NSW-SC
FACTS (YYNNYNN)
RESULT Not-Implied
SUMMARY "Nashua applied for a by-law to be made in respect of
specially coated paper that it wanted to import from America.
It claimed that suitable paper was not available in
Australia. Channon, as delegate of the Minister, made a
determination under s. 273 of the {\it Customs Act 1966\/}
(Cth) that enabled the paper to be imported at a duty of 2%
(instead of 25%) for a period of over two years. Less than
four months into that period, the determination was revoked
because (according to Channon) suitably equivalent paper was
available from an Australian manufacturer. Nashua claimed
that it had been denied natural justice as it had been given
no notice of the intended revocation and no opportunity to
make representations that the revocation should not be
made.\par
Lee J held that, given the purposes and operation of the Act,
the rules of natural justice did not apply to the revocation
of a determination under s. 273. However, he held the
revocation invalid because Channon himself had not exercised
the discretion entrusted to him."
CASE "FAI Insurances Ltd v. Winneke"
"FAI v. Winneke"
CITATION "(1982) 151 CLR 342"
YEAR 1982
COURT HC-7
FACTS (YYNYYNN)
RESULT Implied
SUMMARY "Winneke was the Governor of Victoria. The {\it Workers
Compensation Act\/} 1958 (Vic) made accident insurance
compulsory for all employers, and required them to obtain
that insurance from the Insurance Commissioner or from an
insurer approved by the Governor in Council. Regulations
made under the Act allowed the Governor in Council to grant
an approval for a period not exceeding twelve months, and (on
application) to renew an approval for any period not
exceeding twelve months ``if the Governor in Council thinks
fit.'' FAI had had its approval to provide worker's
compensation renewed every year for twenty years, until
1981.\par
Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ
(Murphy J dissenting) held that in deciding whether to renew
an approval previously given, the Governor in Council is
subject to the requirements of natural justice. ``In these
circumstances, a company which becomes an approved insurer
has a legitimate expectation that its approval will be
renewed unless some good reason exists for refusing to renew
it. It would not be fair to deprive a company of the ability
to carry on its business without revealing the reason for
doing so''.\footnote{ibid. at 348 per Gibbs CJ.}"
CASE "Attorney-General of Hong Kong v. Ng Yuen Shiu"
"AG v. Ng"
CITATION "[1983] 2 AC 629"
YEAR 1983
COURT PC
FACTS (YYYUYNN)
RESULT Implied
SUMMARY "Ng was an illegal immigrant in Hong Kong. The Hong Kong
Government's immigrant policy allowed illegal entrants to
stay if they had reached the urban areas without being
arrested. This policy was changed, and it was announced that
illegal immigrants would be repatriated. Many illegal
immigrants, who (like Ng) had come from China via Macau, were
fearful of being repatriated to China. A senior immigration
official announced that each illegal immigrant from Macau
would be interviewed, and each case ``treated on its
merits''. Ng was questioned by an immigration officer, but
was given no opportunity to make representations, and the
Director of Immigration ordered his removal.\par
The Privy Council held that, because the government had
promised to follow a certain procedure before reaching its
decision, it should honour that promise. The removal order
was set aside because Ng had not been asked whether he
wished to make representations as to why he should not be
removed."
CASE "Council of Civil Service Unions v. Minister for the Civil
Service" "CCSU v. Minister"
CITATION "[1985] AC 374"
YEAR 1984
COURT HL
FACTS (YYNNYNY)
RESULT Not-Implied
SUMMARY "the Minister gave an instruction varying the terms and
conditions for staff working at the Government Communications
Headquarters. The effect of the variation was to prohibit
staff from belonging to national trade unions. Staff had
been allowed to belong to these unions for almost forty
years. There was a well-established practice of consultation
between the government and the trade unions about important
alterations to the staff's terms and conditions, but there
was no consultation with staff or the unions before the
Minister issued her instruction.\par
The unions claimed that the Minister had been under a duty to
act fairly by consulting those concerned before issuing the
instruction. The Minister produced an affidavit from the
Secretary to the Cabinet stating that recent industrial
action had led the Cabinet to believe that prior consultation
about the Minister's instruction could have precipitated
further disruption and would have indicated vulnerable areas
of the Government Communications Headquarters'
operations.\par
The House of Lords held that the unions had a legitimate
expectation that the Minister would consult with them on this
matter. However, their Lordships held that the requirements
of national security outweighed those of fairness: the
Minister ``had shown that her decision was one which not only
could reasonably have been based, but was in fact based, on
considerations of national security, which outweighed what
would otherwise have been the reasonable expectation on the
part of the [unions] for prior consultation.''\footnote{ibid.
at 403 per Lord Fraser of Tullybelton.} The Minister's
instruction was valid."
CASE "Kioa v. West"
CITATION "(1985) 159 CLR 550"
YEAR 1985
COURT HC-5
FACTS (YYYYYNN)
RESULT Implied
SUMMARY "Kioa and his wife were Tongan citizens. They were each
granted a temporary entry permit. When their entry permits
expired, they stayed in Australia and their daughter was born
(becoming an Australian citizen). The Minister's delegate
made an order for their deportation under the {\it Migration
Act 1958\/} (Cth). They were given no opportunity to answer
prejudicial statements against them made to the Minister's
delegate.\par
Mason, Wilson, Brennan and Deane JJ (Gibbs CJ dissenting)
held that, in the absence of statutory provisions to the
contrary, the requirements of natural justice should have
been observed in relation to the making of the deportation
order. The deportation order was set aside."
CASE "Marine Hull and Liability Insurance Co. Ltd v. Hurford"
"Marine Hull v. Hurford"
CITATION "(1986) 10 FCR 476"
YEAR 1986
COURT FCA-FC
FACTS (YYYNYYN)
RESULT Implied
SUMMARY "Hurford was Acting Treasurer. He forbade Marine Hull from
issuing or renewing insurance policies, using his powers
under s. 62 of the {\it Insurance Act 1973\/} (Cth). Marine
Hull complained that it had not been granted a hearing before
the Minister made his direction.\par
In the first case, Wilcox J held that the Treasurer should
have applied the principles of natural justice before making
his direction under s. 62. However, because s. 63 of the
Act provided for a review of any such directions by the
Administrative Appeals Tribunal, ``the legislature must be
taken to have evinced an intention that, in the event of the
Treasurer failing to so act, the directions are not to be
regarded as being invalid in law. They are merely
susceptible of challenge before the
Tribunal.''\footnote{(1985) 10 FCR 234 at 248.}\par
Marine Hull appealed to the Full Court, which agreed with
Wilcox J that natural justice had not been denied in this
case; the Acting Treasurer's direction was not invalidated by
his failing to allow Marine Hull a prior hearing. However,
the Full Court also held that the ``[t]he existence of a
right to have a matter reconsidered \dots\ may well affect
the nature of the procedures which ought to be adopted in
complying with the rules of natural justice but, ordinarily,
it does not exclude them.''\footnote{(1986) 10 FCR 476 at
480 per Davies J.}"
CASE "South Australia v. O'Shea"
"SA v. O'Shea"
CITATION "(1987) 163 CLR 378"
YEAR 1987
COURT HC-5
FACTS (YYYNYNN)
RESULT Not-Implied
SUMMARY "O'Shea had been convicted of two offences of indecent
assault of young children. He was released on licence and
remained at liberty after the licence expired. Over a year
later, after allegations had been made against him, O'Shea
was apprehended and detained. The parole board recommended
his release on licence on various conditions, but the
Governor in Council resolved to take no action. O'Shea had
been given a hearing by the parole board, but he claimed he
was entitled to a further hearing before the Governor in
Council could exercise his discretionary powers under
s. 77a(7a) of the {\it Criminal Law Consolidation Act,
1935\/} (SA).\par
Mason CJ, Wilson, Brennan and Toohey JJ (Deane J dissenting)
held that O'Shea was not entitled to a further hearing.
``Given the nature of this decision, it cannot be said that
Mr O'Shea could have more than a hope that the Governor would
be prepared to act on the recommendation of the Board. Hope,
of itself, is not sufficient to ground an expectation that
will attract legal consequences. So far as the concept of
legitimate expectation is concerned, Mr O'Shea must be taken
to know that the Act committed to the Governor, with the
advice and consent of the Executive Council, the
responsibility for determining where the public interest lay
\dots\ The nature of the decision that they were required to
make was such that participation by Mr O'Shea was
inappropriate.''\footnote{ibid. at 402 per Wilson and
Toohey JJ.}"
CASE "Macrae v. Attorney-General for New South Wales"
"Macrae v. AG"
CITATION "(1987) 9 NSWLR 268"
YEAR 1987
COURT NSW-CA
FACTS (YYYNYNN)
RESULT Implied
SUMMARY "five magistrates who had been appointed under the Justices
Act 1902 (NSW) were not appointed under the Local Courts Act
1982 (NSW). The new Act had reorganized the magistracy in
NSW, and magistrates appointed under the old Act were
entitled to apply for appointment as magistrates under the
new Act. The five had applied and were interviewed.
Allegations were made privately to the Attorney-General
claiming that they were unfit to be appointed, but these
allegations were not brought to their notice at the time of
the interviews.\par
The Court of Appeal held that the Attorney-General's decision
not to recommend the appointment of the magistrates was void
because they were denied their legitimate expectation of
procedural fairness. ``They have not been treated
fairly.''\footnote{ibid. at 283 per Kirby P.}"
CASE "Minister for Arts, Heritage and Environment v. Peko-Wallsend
Ltd" "Minister v. Peko-Wallsend"
CITATION "(1987) 15 FCR 274"
YEAR 1987
COURT FCA-FC
FACTS (NNNNYNN)
RESULT Not-Implied
SUMMARY "Peko-Wallsend held various mining interests in Stage 2 of
Kakadu National Park. Federal Cabinet decided to nominate
Stage 2 for inclusion in the World Heritage List, so it
became ``identified property'' within the meaning of s. 3(2)
of the {\it World Heritage Properties Conservation Act
1983\/} (Cth). This meant that the Governor-General could,
by proclamation, make mining operations unlawful in the area.
The decision did not affect Peko-Wallsend's mining rights
which were preserved under s. 8{\sc b} of the {\it National
Parks and Wildlife Conservation Act 1975\/} (Cth).\par
Before Cabinet's decision, Peko-Wallsend had lobbied
Ministers and other officials extensively, seeking to
preserve its mining interests. After the decision the
company commenced proceedings to prevent the Government from
taking any further steps to have Stage 2 nominated on the
World Heritage List, claiming that Cabinet was bound by the
rules of natural justice and had failed to give Peko-Wallsend
an opportunity to be heard. Beaumont J (a Federal Court
judge) agreed, and held the Cabinet decision
void.\footnote{{\it Peko-Wallsend Ltd v. Minister for Arts,
Heritage and Environment\/} (1986) 13 FCR 19.}\par
The Full Court of the Federal Court disagreed. Bowen CJ
decided that ``it would \dots\ be inappropriate for this
Court to intervene to set aside a Cabinet decision involving
such complex policy considerations''.\footnote{(1987) 15 FCR
274 at 279.} Both Sheppard and Wilcox JJ held that
Peko-Wallsend had had adequate opportunity to put its case to
relevant Ministers and officials before the Cabinet decision,
and was not denied natural justice.\footnote{ibid. at 282 per
Sheppard J, at 308 per Wilcox J.} Further, Wilcox J (with
whose reasons the other two judges generally agreed) held
that the Cabinet's decision in this case did not attract the
obligations of natural justice.\footnote{ibid. at 308.}"
CASE "Haoucher v. Minister for Immigration and Ethnic
Affairs" "Haoucher v. Minister"
CITATION "(1990) 169 CLR 648"
YEAR 1990
COURT HC-5
FACTS (YYNYYNN)
RESULT Implied
SUMMARY "Haoucher had been convicted of an offence for which he had
been sentenced to imprisonment for a period not less than one
year. Hence---as Haoucher was not an Australian
citizen---the Minister had the power to order his deportation
under s. 12 of the {\it Migration Act 1958\/} (Cth), and did
so. The Minister had previously told Parliament that the
Government's policy was that a deportee had the right to
appeal to the Administrative Appeals Tribunal, and that
``recommendations of the Administrative Appeals Tribunal
should be overturned by the Minister only in exceptional
circumstances and only when strong evidence can be produced
to justify his decision.''\par
Haoucher appealed to the AAT which recommended that the
deportation order be revoked. The Minister decided not to
accept that recommendation. Deane, Toohey and McHugh JJ
(Dawson and Gaudron JJ dissenting) held that Haoucher was
entitled to know the matters which constituted ``exceptional
circumstances'' and ``strong evidence'' sufficient for the
Minister to depart from the general policy of following the
AAT's recommendations. The fact that the Minister had not
given Haoucher such details, and had given him no opportunity
to make representations, was a denial of natural justice."
CASE "Annetts v. McCann"
CITATION "(1990) 170 CLR 596"
YEAR 1990
COURT HC-5
FACTS (YYYYNNN)
RESULT Implied
SUMMARY "a coroner had been conducting an inquest into the death of
a 16-year old boy. The boy's parents (Mr and Mrs Annetts)
sought to make a submission before the coroner made a
finding. The coroner decided that the {\it Coroner's Act
1920\/} (WA) gave him the discretion (which he chose to
exercise) to disallow their submission. The Annettses
appealed.\par
The High Court (Mason CJ, Brennan, Deane, Toohey and
McHugh JJ) held that their son's reputation gave the
Annettses an interest in the Coroner's inquiry. ``A finding
in an inquest into a death is naturally likely to deal with
the conduct of the deceased leading to death. An
unfavourable reflection on the deceased is usually a matter
of concern to her or his parents, spouse or children and, if
they choose to appear at the inquest in order to safeguard
the reputation of the deceased, the familial relationship
suffices, in my view, to establish the deceased's reputation
as a relevant interest which should not be adversely affected
without according natural justice to those who are seeking to
safeguard that reputation.''\footnote{ibid. at 612 per
Brennan J.}\par
The Court held that the fact that the coroner's decision was
merely recommendatory (whether or not to prosecute) was not
sufficient to avoid the implication of natural justice; the
coroner was bound to hear the Annettses before making any
finding adverse to them or their son.\footnote{ibid. at 603
per Mason CJ, Deane and McHugh JJ, at 612 per Brennan J,
at 621 per Toohey J. Note, however, that Brennan and
Toohey JJ would have dismissed the appeal because they
believed that the decision of the Full Court of the Supreme
Court of Western Australia (from which the Annettses
appealed) was right on the material before it.}"
IDEAL
FACTS (YYYYNNN)
RESULT Implied
IDEAL
FACTS (NNNNYYY)
RESULT Not-Implied
AREA Affected
RESULTS
Affected "the decision affected the property, right, interest, status,
or legitimate expectation of the applicant"
Unaffected "the decision did not affect the property, right, interest,
status, or legitimate expectation of the applicant"
ATTRIBUTE % financial, property or occupational interest
QUESTION "Did the decision affect a financial, property or occupational
interest of the applicant"
YES "the decision affected a financial, property or occupational
interest of the applicant" Affected
NO "the decision did not affect a financial, property or
occupational interest of the applicant"
UNKNOWN "it is not known whether or not the decision affected a
financial, property or occupational interest of the
applicant"
HELP "The interest must be an existing interest:
one which existed when the decision was made."
ATTRIBUTE % personal liberty
QUESTION "Did the decision affect the applicant's personal liberty"
YES "the decision affected the applicant's personal liberty"
Affected
NO "the decision did not affect the applicant's personal liberty"
UNKNOWN "it is not known whether the decision affected the applicant's
personal liberty"
ATTRIBUTE % reputation
QUESTION "Did the decision affect the applicant's reputation"
YES "the decision affected the applicant's reputation" Affected
NO "the decision did not affect the applicant's reputation"
UNKNOWN "it is not known whether the decision affected the applicant's
reputation"
ATTRIBUTE % legitimate expectation
AREA Expectation
YES "the applicant had a legitimate expectation which was affected
by the decision" Affected EXTERNAL Expectation
NO "the applicant did not have a legitimate expectation which was
affected by the decision" EXTERNAL No-Expectation
UNKNOWN "it is not known whether the applicant had a legitimate
expectation which was affected by the decision"
CASE "Commissioner of Police v. Tanos"
"Commissioner v. Tanos"
CITATION "(1958) 98 CLR 383"
YEAR 1958
COURT HC-3
FACTS (YNYN)
RESULT Affected
SUMMARY "a judge had made a declaration that a restaurant run by
Tanos was a ``disorderly house'' pursuant to s. 3(1)(b) of
the Disorderly Houses Act 1943 (NSW). A police inspector had
sworn an affidavit as to his suspicion and belief that liquor
had been unlawfully sold or supplied on the premises and was
likely to unlawfully sold or supplied on the premises again.
The judge made the declaration {\it ex parte}.\par
The stated grounds for the police inspector's suspicion
concerned things that Tanos's husband had done when he had
been running the restaurant. Tanos claimed that things had
changed since she had taken over: ``the patronage of a much
more desirable class of customer was obtained, a class which
would not demand wine with their food.''\footnote{ibid. at
389 per Dixon CJ and Webb J.} Tanos appealed successfully to
the Supreme Court.\par
Dixon CJ, Webb and Taylor JJ held that Tanos's appeal should
have been dismissed by the Supreme Court; once the
declaration was made, the Act placed the burden on Tanos to
prove that liquor had never been sold or supplied on the
premises, and she had not proved that. However, the High
Court also held that, except in exceptional and special
circumstances, an owner/occupier should have an opportunity
to be heard before her/his premises are declared
``disorderly.'' Tanos had been denied that opportunity, so
the declaration was set aside."
CASE "Bread Manufacturers of New South Wales v. Evans"
"Bread Manufacturers v. Evans"
CITATION "(1981) 180 CLR 404"
YEAR 1981
COURT HC-5
FACTS (YNNN)
RESULT Affected
SUMMARY "the bread manufacturers claimed that an order made by the
Prices Commission was void. The order affected the
classification of bread products and had an incidental effect
on the price of hamburger buns. The bread manufacturers
complained that they should have been given the right to put
their case to the Commission.\par
The Prices Regulation Act 1948 (NSW) provided that a public
inquiry had to be held before an order could be made setting
prices, except where the Minister consented to dispensing
with the inquiry. The Minister had dispensed with an inquiry
before this order was made. Hence, ``[t]he argument that the
Commission was bound to disclose to the [bread manufacturers]
the fact that it proposed to make an order which would have
the incidental effect of reducing the price of hamburger buns
can only succeed if the Commission, although not bound to
hold an inquiry, was bound to observe the rules of natural
justice''.\footnote{ibid. at 414 per Gibbs CJ.}\par
The High Court held that there was no denial of natural
justice in relation to the order, because ``the reduction of
the maximum price in respect of one item was simply a minor
incident in a major revision of the price framework covering
the whole range of bread products. The effect of that major
revision was generally to increase prices. There was, in our
opinion, no obligation on the Commission to give advance
notice of this development or of the possibility of its
occurrence.''\footnote{ibid. at 435 per Mason and Wilson JJ,
with whom Murphy and Aickin JJ agreed on this point.}"
CASE "FAI Insurances Ltd v. Winneke"
"FAI v. Winneke"
CITATION "(1982) 151 CLR 342"
YEAR 1982
COURT HC-7
FACTS (YNYY)
RESULT Affected
SUMMARY "Winneke was the Governor of Victoria. The {\it Workers
Compensation Act\/} 1958 (Vic) made accident insurance
compulsory for all employers, and required them to obtain
that insurance from the Insurance Commissioner or from an
insurer approved by the Governor in Council. Regulations
made under the Act allowed the Governor in Council to grant
an approval for a period not exceeding twelve months, and (on
application) to renew an approval for any period not
exceeding twelve months ``if the Governor in Council thinks
fit.'' FAI had had its approval to provide worker's
compensation renewed every year for twenty years, until
1981.\par
Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ
(Murphy J dissenting) held that in deciding whether to renew
an approval previously given, the Governor in Council is
subject to the requirements of natural justice. ``In these
circumstances, a company which becomes an approved insurer
has a legitimate expectation that its approval will be
renewed unless some good reason exists for refusing to renew
it. It would not be fair to deprive a company of the ability
to carry on its business without revealing the reason for
doing so''.\footnote{ibid. at 348 per Gibbs CJ.}"
CASE "Council of Civil Service Unions v. Minister for the Civil
Service" "CCSU v. Minister"
CITATION "[1985] AC 374"
YEAR 1984
COURT HL
FACTS (YNNY)
RESULT Affected
SUMMARY "the Minister gave an instruction varying the terms and
conditions for staff working at the Government Communications
Headquarters. The effect of the variation was to prohibit
staff from belonging to national trade unions. Staff had
been allowed to belong to these unions for almost forty
years. There was a well-established practice of consultation
between the government and the trade unions about important
alterations to the staff's terms and conditions, but there
was no consultation with staff or the unions before the
Minister issued her instruction.\par
The unions claimed that the Minister had been under a duty to
act fairly by consulting those concerned before issuing the
instruction. The Minister produced an affidavit from the
Secretary to the Cabinet stating that recent industrial
action had led the Cabinet to believe that prior consultation
about the Minister's instruction could have precipitated
further disruption and would have indicated vulnerable areas
of the Government Communications Headquarters'
operations.\par
The House of Lords held that the unions had a legitimate
expectation that the Minister would consult with them on this
matter. However, their Lordships held that the requirements
of national security outweighed those of fairness: the
Minister ``had shown that her decision was one which not only
could reasonably have been based, but was in fact based, on
considerations of national security, which outweighed what
would otherwise have been the reasonable expectation on the
part of the [unions] for prior consultation.''\footnote{ibid.
at 403 per Lord Fraser of Tullybelton.} The Minister's
instruction was valid."
CASE "Kioa v. West"
CITATION "(1985) 159 CLR 550"
YEAR 1985
COURT HC-5
FACTS (NYNY)
RESULT Affected
SUMMARY "Kioa and his wife were Tongan citizens. They were each
granted a temporary entry permit. When their entry permits
expired, they stayed in Australia and their daughter was born
(becoming an Australian citizen). The Minister's delegate
made an order for their deportation under the {\it Migration
Act 1958\/} (Cth). They were given no opportunity to answer
prejudicial statements against them made to the Minister's
delegate.\par
Mason, Wilson, Brennan and Deane JJ (Gibbs CJ dissenting)
held that, in the absence of statutory provisions to the
contrary, the requirements of natural justice should have
been observed in relation to the making of the deportation
order. The deportation order was set aside."
CASE "South Australia v. O'Shea"
"SA v. O'Shea"
CITATION "(1987) 163 CLR 378"
YEAR 1987
COURT HC-5
FACTS (NYNN)
RESULT Affected
SUMMARY "O'Shea had been convicted of two offences of indecent
assault of young children. He was released on licence and
remained at liberty after the licence expired. Over a year
later, after allegations had been made against him, O'Shea
was apprehended and detained. The parole board recommended
his release on licence on various conditions, but the
Governor in Council resolved to take no action. O'Shea had
been given a hearing by the parole board, but he claimed he
was entitled to a further hearing before the Governor in
Council could exercise his discretionary powers under
s. 77a(7a) of the {\it Criminal Law Consolidation Act,
1935\/} (SA).\par
Mason CJ, Wilson, Brennan and Toohey JJ (Deane J dissenting)
held that O'Shea was not entitled to a further hearing.
``Given the nature of this decision, it cannot be said that
Mr O'Shea could have more than a hope that the Governor would
be prepared to act on the recommendation of the Board. Hope,
of itself, is not sufficient to ground an expectation that
will attract legal consequences. So far as the concept of
legitimate expectation is concerned, Mr O'Shea must be taken
to know that the Act committed to the Governor, with the
advice and consent of the Executive Council, the
responsibility for determining where the public interest lay
\dots\ The nature of the decision that they were required to
make was such that participation by Mr O'Shea was
inappropriate.''\footnote{ibid. at 402 per Wilson and
Toohey JJ.}"
CASE "Minister for Arts, Heritage and Environment v. Peko-Wallsend
Ltd" "Minister v. Peko-Wallsend"
CITATION "(1987) 15 FCR 274"
YEAR 1987
COURT FCA-FC
FACTS (NNNN)
RESULT Unaffected
SUMMARY "Peko-Wallsend held various mining interests in Stage 2 of
Kakadu National Park. Federal Cabinet decided to nominate
Stage 2 for inclusion in the World Heritage List, so it
became ``identified property'' within the meaning of s. 3(2)
of the {\it World Heritage Properties Conservation Act
1983\/} (Cth). This meant that the Governor-General could,
by proclamation, make mining operations unlawful in the area.
The decision did not affect Peko-Wallsend's mining rights
which were preserved under s. 8{\sc b} of the {\it National
Parks and Wildlife Conservation Act 1975\/} (Cth).\par
Before Cabinet's decision, Peko-Wallsend had lobbied
Ministers and other officials extensively, seeking to
preserve its mining interests. After the decision the
company commenced proceedings to prevent the Government from
taking any further steps to have Stage 2 nominated on the
World Heritage List, claiming that Cabinet was bound by the
rules of natural justice and had failed to give Peko-Wallsend
an opportunity to be heard. Beaumont J (a Federal Court
judge) agreed, and held the Cabinet decision
void.\footnote{{\it Peko-Wallsend Ltd v. Minister for Arts,
Heritage and Environment\/} (1986) 13 FCR 19.}\par
The Full Court of the Federal Court disagreed. Bowen CJ
decided that ``it would \dots\ be inappropriate for this
Court to intervene to set aside a Cabinet decision involving
such complex policy considerations''.\footnote{(1987) 15 FCR
274 at 279.} Both Sheppard and Wilcox JJ held that
Peko-Wallsend had had adequate opportunity to put its case to
relevant Ministers and officials before the Cabinet decision,
and was not denied natural justice.\footnote{ibid. at 282 per
Sheppard J, at 308 per Wilcox J.} Further, Wilcox J (with
whose reasons the other two judges generally agreed) held
that the Cabinet's decision in this case did not attract the
obligations of natural justice.\footnote{ibid. at 308.}"
CASE "Haoucher v. Minister for Immigration and Ethnic
Affairs" "Haoucher v. Minister"
CITATION "(1990) 169 CLR 648"
YEAR 1990
COURT HC-5
FACTS (NYNY)
RESULT Affected
SUMMARY "Haoucher had been convicted of an offence for which he had
been sentenced to imprisonment for a period not less than one
year. Hence---as Haoucher was not an Australian
citizen---the Minister had the power to order his deportation
under s. 12 of the {\it Migration Act 1958\/} (Cth), and did
so. The Minister had previously told Parliament that the
Government's policy was that a deportee had the right to
appeal to the Administrative Appeals Tribunal, and that
``recommendations of the Administrative Appeals Tribunal
should be overturned by the Minister only in exceptional
circumstances and only when strong evidence can be produced
to justify his decision.''\par
Haoucher appealed to the AAT which recommended that the
deportation order be revoked. The Minister decided not to
accept that recommendation. Deane, Toohey and McHugh JJ
(Dawson and Gaudron JJ dissenting) held that Haoucher was
entitled to know the matters which constituted ``exceptional
circumstances'' and ``strong evidence'' sufficient for the
Minister to depart from the general policy of following the
AAT's recommendations. The fact that the Minister had not
given Haoucher such details, and had given him no opportunity
to make representations, was a denial of natural justice."
CASE "Annetts v. McCann"
CITATION "(1990) 170 CLR 596"
YEAR 1990
COURT HC-5
FACTS (NNYN)
RESULT Affected
SUMMARY "a coroner had been conducting an inquest into the death of
a 16-year old boy. The boy's parents (Mr and Mrs Annetts)
sought to make a submission before the coroner made a
finding. The coroner decided that the {\it Coroner's Act
1920\/} (WA) gave him the discretion (which he chose to
exercise) to disallow their submission. The Annettses
appealed.\par
The High Court (Mason CJ, Brennan, Deane, Toohey and
McHugh JJ) held that their son's reputation gave the
Annettses an interest in the Coroner's inquiry. ``A finding
in an inquest into a death is naturally likely to deal with
the conduct of the deceased leading to death. An
unfavourable reflection on the deceased is usually a matter
of concern to her or his parents, spouse or children and, if
they choose to appear at the inquest in order to safeguard
the reputation of the deceased, the familial relationship
suffices, in my view, to establish the deceased's reputation
as a relevant interest which should not be adversely affected
without according natural justice to those who are seeking to
safeguard that reputation.''\footnote{ibid. at 612 per
Brennan J.}\par
The Court held that the fact that the coroner's decision was
merely recommendatory (whether or not to prosecute) was not
sufficient to avoid the implication of natural justice; the
coroner was bound to hear the Annettses before making any
finding adverse to them or their son.\footnote{ibid. at 603
per Mason CJ, Deane and McHugh JJ, at 612 per Brennan J,
at 621 per Toohey J. Note, however, that Brennan and
Toohey JJ would have dismissed the appeal because they
believed that the decision of the Full Court of the Supreme
Court of Western Australia (from which the Annettses
appealed) was right on the material before it.}"
IDEAL
FACTS (YYYY)
RESULT Affected
IDEAL
FACTS (NNNN)
RESULT Unaffected
AREA Expectation
OPENING "If the applicant had a legitimate expectation which was
affected by the decision, natural justice may be implied.
``\,`[L]egitimate expectations' \dots\ are capable of
including expectations which go beyond enforceable legal
rights, provided they have some reasonable
basis''.\footnote{{\it Cole v. Cunningham\/} (1983) 49 ALR
123 at 131 per Bowen CJ, Sheppard and Morling JJ.}"
RESULTS
Expectation "the applicant had a legitimate expectation which was
affected by the decision"
No-Expectation "the applicant did not have a legitimate expectation which
was affected by the decision"
ATTRIBUTE % promise or undertaking
QUESTION "Did the decision-maker break a promise or undertaking"
YES "the decision-maker broke a promise or undertaking"
Expectation
NO "the decision-maker did not break a promise or undertaking"
UNKNOWN "it is not known whether the decision-maker broke a promise or
undertaking"
HELP "For example, if the decision went against a published policy
then it was in breach of a promise or undertaking."
ATTRIBUTE % established course of practice
QUESTION "Did the decision-maker go against an established course of
practice"
YES "the decision-maker went against an established course of
practice" Expectation
NO "the decision-maker did not go against an established course
of practice"
UNKNOWN "it is not known whether the decision-maker went against an
established course of practice"
HELP "There may have been an expectation that an established course
of practice would be adopted, or that notice (and an
opportunity to comment) would be given before the practice
was abandoned."
ATTRIBUTE % renewal of interest
QUESTION "Did the decision involve a refusal to renew an existing
interest"
YES "the decision involved the refusal to renew an existing
interest" Expectation
NO "the decision did not involve a refusal to renew an existing
interest"
UNKNOWN "it is not known whether the decision involved a refusal to
renew an existing interest"
HELP "For example, if the decision was to refuse to renew a
licence, then it was a refusal to renew an existing
interest."
ATTRIBUTE % initial grant of interest
QUESTION "Did the decision-maker or a statutory provision suggest
that an initial interest would be granted"
YES "the decision-maker or a statutory provision suggested
that an initial interest would be granted" Expectation
NO "neither the decision-maker nor a statutory provision
suggested that an initial interest would be granted"
UNKNOWN "it is not known whether the decision-maker or a statutory
provision suggested that an initial interest would be
granted"
ATTRIBUTE % established liberty or interest
QUESTION "Did the decision affect an established liberty or interest"
YES "the decision affected an established liberty or interest"
Expectation
NO "the decision did not affect an established liberty or
interest"
UNKNOWN "it is not known whether the decision affected an established
liberty or interest"
HELP "For example, a decision to warn the applicant off a racetrack
would affect the applicant's established liberty to go to the
races. And a deportation order would affect an applicant's
established liberty to remain in the country."
ATTRIBUTE % standard administrative procedure
QUESTION "Was there a standard administrative procedure which the
decision-maker did not follow"
YES "there was a standard administrative procedure which the
decision-maker did not follow" Expectation
NO "there was no standard administrative procedure which the
decision-maker should have followed"
UNKNOWN "it is not known whether there was a standard administrative
procedure which the decision-maker should have followed"
CASE "Heatley v. Tasmanian Racing and Gaming Commission"
"Heatley v. TRGC"
CITATION "(1977) 137 CLR 487"
YEAR 1977
COURT HC-5
FACTS (NYNNYN)
RESULT Expectation
SUMMARY "Heatley was warned off racecourses in Tasmania by the
Commission, using its powers under s. 39(3) of the
{\it Racing and Gaming Act 1952\/} (Tas). Heatley had been
given no notice that the Commission intended warning him off
(and hence was given no opportunity to make representations
to the Commission) and was given no reasons.\par
Stephen, Mason, Murphy and Aickin JJ (Barwick CJ dissenting)
held that the Commission was bound by the rules of natural
justice. In the absence of an emergency, the Commission
should have given Heatley notice of its intention to warn him
off, and the grounds for taking such action. Further,
Heatley should have been given an opportunity to make
representations to the Commission before it made its
decision.\par
Aickin J (with whom Stephen and Mason JJ agreed) held that
all members of the public---including Heatley---have a
legitimate expectation that they will be allowed onto
racecourses.\footnote{ibid. at 509.}"
CASE "FAI Insurances Ltd v. Winneke"
"FAI v. Winneke"
CITATION "(1982) 151 CLR 342"
YEAR 1982
COURT HC-7
FACTS (NYYNYN)
RESULT Expectation
SUMMARY "Winneke was the Governor of Victoria. The {\it Workers
Compensation Act\/} 1958 (Vic) made accident insurance
compulsory for all employers, and required them to obtain
that insurance from the Insurance Commissioner or from an
insurer approved by the Governor in Council. Regulations
made under the Act allowed the Governor in Council to grant
an approval for a period not exceeding twelve months, and (on
application) to renew an approval for any period not
exceeding twelve months ``if the Governor in Council thinks
fit.'' FAI had had its approval to provide worker's
compensation renewed every year for twenty years, until
1981.\par
Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ
(Murphy J dissenting) held that in deciding whether to renew
an approval previously given, the Governor in Council is
subject to the requirements of natural justice. ``In these
circumstances, a company which becomes an approved insurer
has a legitimate expectation that its approval will be
renewed unless some good reason exists for refusing to renew
it. It would not be fair to deprive a company of the ability
to carry on its business without revealing the reason for
doing so''.\footnote{ibid. at 348 per Gibbs CJ.}"
CASE "Cole v. Cunningham"
CITATION "(1983) 49 ALR 123"
YEAR 1983
COURT FCA-FC
FACTS (YNNNNN)
RESULT Expectation
SUMMARY "Cunningham had been encouraged to resign from the public
service because his superiors believed he had been guilty of
misconduct in the performance of his duties. He had formed
an attachment and begun to live with a Fijian woman whose
application for an extension of her temporary entry permit he
had processed. He was threatened with criminal prosecution
for harbouring an illegal immigrant, and told that ``[i]f you
resign now it will be a normal resignation and you'll leave
with a clean record.''\footnote{ibid. at 125.}
He resigned.\par
About eighteen months later, Cunningham sought reappointment
to the public service and was told that he would be offered a
position subject to police and security clearances. The next
day he was told that he had been given an unsatisfactory
report based on the earlier events.\par
Bowen CJ, Sheppard and Morling JJ held that, in general,
applicants for appointment or reappointment to the public
service are not entitled to have natural justice principles
applied because those applicants have no legitimate
expectation which can be affected by a refusal to appoint.
However, Cunningham did have a legitimate expectation that
any decision to reappoint him would not be made on the basis
of his past record."
CASE "Attorney-General of Hong Kong v. Ng Yuen Shiu"
"AG v. Ng"
CITATION "[1983] 2 AC 629"
YEAR 1983
COURT PC
FACTS (YNNNYN)
RESULT Expectation
SUMMARY "Ng was an illegal immigrant in Hong Kong. The Hong Kong
Government's immigrant policy allowed illegal entrants to
stay if they had reached the urban areas without being
arrested. This policy was changed, and it was announced that
illegal immigrants would be repatriated. Many illegal
immigrants, who (like Ng) had come from China via Macau, were
fearful of being repatriated to China. A senior immigration
official announced that each illegal immigrant from Macau
would be interviewed, and each case ``treated on its
merits''. Ng was questioned by an immigration officer, but
was given no opportunity to make representations, and the
Director of Immigration ordered his removal.\par
The Privy Council held that, because the government had
promised to follow a certain procedure before reaching its
decision, it should honour that promise. The removal order
was set aside because Ng had not been asked whether he
wished to make representations as to why he should not be
removed."
CASE "Kioa v. West"
CITATION "(1985) 159 CLR 550"
YEAR 1985
COURT HC-5
FACTS (NNNNYY)
RESULT Expectation
SUMMARY "Kioa and his wife were Tongan citizens. They were each
granted a temporary entry permit. When their entry permits
expired, they stayed in Australia and their daughter was born
(becoming an Australian citizen). The Minister's delegate
made an order for their deportation under the {\it Migration
Act 1958\/} (Cth). They were given no opportunity to answer
prejudicial statements against them made to the Minister's
delegate.\par
Mason, Wilson, Brennan and Deane JJ (Gibbs CJ dissenting)
held that, in the absence of statutory provisions to the
contrary, the requirements of natural justice should have
been observed in relation to the making of the deportation
order. The deportation order was set aside."
CASE "Minister for Arts, Heritage and Environment v. Peko-Wallsend
Ltd" "Minister v. Peko-Wallsend"
CITATION "(1987) 15 FCR 274"
YEAR 1987
COURT FCA-FC
FACTS (NNNNNN)
RESULT No-Expectation
SUMMARY "Peko-Wallsend held various mining interests in Stage 2 of
Kakadu National Park. Federal Cabinet decided to nominate
Stage 2 for inclusion in the World Heritage List, so it
became ``identified property'' within the meaning of s. 3(2)
of the {\it World Heritage Properties Conservation Act
1983\/} (Cth). This meant that the Governor-General could,
by proclamation, make mining operations unlawful in the area.
The decision did not affect Peko-Wallsend's mining rights
which were preserved under s. 8{\sc b} of the {\it National
Parks and Wildlife Conservation Act 1975\/} (Cth).\par
Before Cabinet's decision, Peko-Wallsend had lobbied
Ministers and other officials extensively, seeking to
preserve its mining interests. After the decision the
company commenced proceedings to prevent the Government from
taking any further steps to have Stage 2 nominated on the
World Heritage List, claiming that Cabinet was bound by the
rules of natural justice and had failed to give Peko-Wallsend
an opportunity to be heard. Beaumont J (a Federal Court
judge) agreed, and held the Cabinet decision
void.\footnote{{\it Peko-Wallsend Ltd v. Minister for Arts,
Heritage and Environment\/} (1986) 13 FCR 19.}\par
The Full Court of the Federal Court disagreed. Bowen CJ
decided that ``it would \dots\ be inappropriate for this
Court to intervene to set aside a Cabinet decision involving
such complex policy considerations''.\footnote{(1987) 15 FCR
274 at 279.} Both Sheppard and Wilcox JJ held that
Peko-Wallsend had had adequate opportunity to put its case to
relevant Ministers and officials before the Cabinet decision,
and was not denied natural justice.\footnote{ibid. at 282 per
Sheppard J, at 308 per Wilcox J.} Further, Wilcox J (with
whose reasons the other two judges generally agreed) held
that the Cabinet's decision in this case did not attract the
obligations of natural justice.\footnote{ibid. at 308.}"
CASE "South Australia v. O'Shea"
"SA v. O'Shea"
CITATION "(1987) 163 CLR 378"
YEAR 1987
COURT HC-5
FACTS (NNNNYN)
RESULT No-Expectation
SUMMARY "O'Shea had been convicted of two offences of indecent
assault of young children. He was released on licence and
remained at liberty after the licence expired. Over a year
later, after allegations had been made against him, O'Shea
was apprehended and detained. The parole board recommended
his release on licence on various conditions, but the
Governor in Council resolved to take no action. O'Shea had
been given a hearing by the parole board, but he claimed he
was entitled to a further hearing before the Governor in
Council could exercise his discretionary powers under
s. 77a(7a) of the {\it Criminal Law Consolidation Act,
1935\/} (SA).\par
Mason CJ, Wilson, Brennan and Toohey JJ (Deane J dissenting)
held that O'Shea was not entitled to a further hearing.
``Given the nature of this decision, it cannot be said that
Mr O'Shea could have more than a hope that the Governor would
be prepared to act on the recommendation of the Board. Hope,
of itself, is not sufficient to ground an expectation that
will attract legal consequences. So far as the concept of
legitimate expectation is concerned, Mr O'Shea must be taken
to know that the Act committed to the Governor, with the
advice and consent of the Executive Council, the
responsibility for determining where the public interest lay
\dots\ The nature of the decision that they were required to
make was such that participation by Mr O'Shea was
inappropriate.''\footnote{ibid. at 402 per Wilson and
Toohey JJ.}"
CASE "Haoucher v. Minister for Immigration and Ethnic
Affairs" "Haoucher v. Minister"
CITATION "(1990) 169 CLR 648"
YEAR 1990
COURT HC-5
FACTS (NYNNYN)
RESULT Expectation
SUMMARY "Haoucher had been convicted of an offence for which he had
been sentenced to imprisonment for a period not less than one
year. Hence---as Haoucher was not an Australian
citizen---the Minister had the power to order his deportation
under s. 12 of the {\it Migration Act 1958\/} (Cth), and did
so. The Minister had previously told Parliament that the
Government's policy was that a deportee had the right to
appeal to the Administrative Appeals Tribunal, and that
``recommendations of the Administrative Appeals Tribunal
should be overturned by the Minister only in exceptional
circumstances and only when strong evidence can be produced
to justify his decision.''\par
Haoucher appealed to the AAT which recommended that the
deportation order be revoked. The Minister decided not to
accept that recommendation. Deane, Toohey and McHugh JJ
(Dawson and Gaudron JJ dissenting) held that Haoucher was
entitled to know the matters which constituted ``exceptional
circumstances'' and ``strong evidence'' sufficient for the
Minister to depart from the general policy of following the
AAT's recommendations. The fact that the Minister had not
given Haoucher such details, and had given him no opportunity
to make representations, was a denial of natural justice."
IDEAL
FACTS (YYYYYY)
RESULT Expectation
IDEAL
FACTS (NNNNNN)
RESULT No-Expectation
Other SHYSTER case law specifications: Finder, Authorization and Employee.