% Natural.cls

% (c) Copyright James Popple 1993, 1995

% This software is made available for no charge, and
% without warranty, on the terms and conditions set
% out in the file README which accompanies this file.

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

