Can Representations by a Decision Maker be the Source of a Duty to Accord Procedural Fairness: A New Life For Legitimate Expectations?

AIAL Forum No. 82 (949 Kb)


Tom Brennan*

In a recent decision, SZSSJ v Minister for Immigration and Border Protection[1] the
Full Court of the Federal Court (Rares, Perram and Griffiths JJ) dealt with one of the consequences of the Department of Immigration’s publication
on the internet of personal details of people in immigration detention. SZSSJ was one of the people in detention whose personal details were published.

By the time of the publication SZSSJ had applied for and been refused a protection visa. His application for review of that decision had been dismissed
by the Refugee Review Tribunal and his applications for review of the Tribunal decision had been dismissed by the Federal Circuit Court and the Federal
Court. There remained only the resolution of his application for special leave to appeal to the High Court.

Subsequently the Department of Immigration and Border Protection commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether
the disclosure of SZSSJ’s personal information created a risk to him such that it engaged Australia’s non-refoulement obligations.

In conducting that assessment the Department disclosed to SZSSJ that the list of persons in detention with their personal information had been accessed
from a number of IP addresses but declined to provide the data provided by a consultant to the Department which indicated the likelihood of each of
those IP addresses having access to the personal information of the detainees.

The Court found that the conduct of the assessment without providing to SZSSJ information on the full circumstances of the data breach was a denial of
procedural fairness.

The Court’s reasons

The decision was unfair

The Court found that the Department’s conduct was unfair; this was unremarkable. The conclusion on that question was in the following terms:

[118]… The Department is requiring affected individuals to make submissions to it about the consequence of its own wrongful actions in disclosing
their information to third parties without revealing to them all that it knows about its own disclosures. Whilst it is certainly true that the obligation
of a decision maker is generally only to disclose information which is adverse to a claimant, the requirements of natural justice fluctuate with the
circumstances of each case.The particular circumstances of this case take it far outside the realm of the ordinary.

[120]… In cases, such as these, involving persons whose claims for protection have failed, the public revelation of their identities that could
have been accessed by the very person(s) from whom the failed protection seeker feared harm, conceivably might have some potential to expose him or
her, on refoulement, to what he or she feared.

Was there a duty to be fair?

That the process was unfair could have no legal consequence unless there existed a duty to accord procedural fairness.

On that question the Court considered whether a duty arose by reason of ss 48B, 195A and 417 of the Migration Act 1958 (Cth).Those were ‘dispensing
provisions’ which were the subject of the High Court’s decision in Plaintiff S10/2011 v Minister for Immigration[2].They
provided for the Minister personally to exercise a non-compellable power in the national interest to permit consideration of the grant of a visa in
circumstances where a visa applicant had exhausted administrative review rights. The Court, in S10, had found that the dispensing provisions
were not attended by a requirement for the observance of procedural fairness (per Gummow, Hayne, Crennan and Bell JJ) at page 668 [100].

In SZSSJ the Court distinguished Plaintiff S10/2011 on facts concerning the nature of the Departmental consideration. That aspect of
the reasons concerns construction of the Migration Act alone and is not further considered.

Another aspect of the Court’s reasons had potential application beyond the field of migration decision making, namely, that a duty to accord procedural
fairness could be found to arise independently of those statutory provisions.

The Court found that in three letters to SZSSJ, in the manual which governed the conduct of ITOAs and in a letter to the solicitors for SZSSJ, there are
statements that the assessment would be conducted fairly.

The Court reasoned:

[90]There is a considerable pedigree for the proposition that decision makers may, in some circumstances, generate an obligation of procedural fairness
by [their] own conduct.

Having reviewed the case law on that question the Court found:

[94]This suggests that a departure by an official from a representation about future procedure will be unfair in at least two circumstances:

(a)where, but for the statement, the claimant for judicial review would have taken a different course, that is to say, situations of actual reliance by
the claimant; or

(b)where if the procedure had been adhered to a different result might have been obtained.

If SZSSJ was provided with, among other things, the full list of IP addresses from which the file including his personal information had been accessed,
it was possible that he would have had a useful submission to make as to the risks faced by him upon refoulement. Consequently the case was
one in which a different result might have been obtained if he had been provided with that information, and the conduct of the Department was sufficient
in itself to trigger an obligation of procedural fairness.

The source of the obligation of procedural fairness

The Court particularly relied upon the decision of the Privy Council in Attorney-General (Hong Kong) v Ng Yuen Shiu[3] for the proposition that a decision maker may, by its own conduct, generate an obligation of procedural fairness.

The Court acknowledged that the reasoning in Ng Yuen Shiu was premised on the concept of legitimate expectation and that the High Court had moved
away from that doctrine as a useful tool of analysis in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[4].The
Court reasoned that Lam stood for the proposition that the focus had now shifted to whether the departure from a representation made by a
decision maker might render the process unfair. In so reasoning the Court relied in particular upon the well-known passage of Gleeson CJ at [34]:

… What must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves
unfairness, even if it defeats an expectation … In a context such as the present, where there is already an obligation to extend procedural
fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate
question remains whether there has been unfairness; not whether an expectation has been disappointed.

It is noted that Gleeson CJ was not dealing with the question of when representations by a decision maker would give rise to an obligation to extend procedural
fairness but rather with the content of that obligation where ‘there is already an obligation to extend procedural fairness’.

The distinction there drawn by Gleeson CJ was consistent with the reasoning of Brennan J in Attorney-General (NSW) v Quin[5]:

So long as the notion of legitimate expectation is seen merely as indicating ‘the factors and kinds of factors which are relevant to any consideration
of what are the things which must be done or afforded’ to afford procedural fairness to an applicant for the exercise of administrative power, the
notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise,
the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case: that is, on what must be
done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice
does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would
become a stalking horse for excesses of judicial power.

The distinction drawn by Gleeson CJ and Brennan J is central to maintaining the coherence of the constitutional writs. Those writs are available to correct
purported exercises of administrative power beyond jurisdiction. If a decision maker has jurisdiction to make a decision without according procedural
fairness, the mere fact that the decision maker makes a representation that they will act fairly does not operate to limit or restrict the decision
maker’s jurisdiction. That being so the mere statement by the decision maker cannot be productive of an excess of jurisdiction which would otherwise
not have occurred.

The Court in SZSSJ did not identify a source of the obligation to accord procedural fairness other than the Department’s own representations. The reasoning
that those representations were sufficient to create that obligation is not consistent with that of Gleeson CJ (upon which the Court relied) or Brennan

This is not to say the Court was in error.

Rather, the reasoning of the majority (Gummow, Hayne, Crennan and Bell JJ) in S10/2011 at [64] – [65] and [70] focuses upon whether any exercise
of power is apt to affect the rights, interests or privileges of an individual.

The majority reasoned at [65]:

The phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate
expression which should be disregarded. The phrase, as Brennan J explained in South Australia v O’Shea[6],
‘tends to direct attention on the merits of a particular decision rather than on the character of the interests which any exercise of the power is
apt to affect’.

Consistent with that distinction where the exercise of a power is apt to affect substantially the interests of an individual there is no diversion of attention
onto the merits of the particular decision from a focus on the character of the interest thereby affected. That is so even when the effect on the individual’s
interests arises only because of the facts of the individual case.

In S10/2011 the majority reasoned at [97]:

‘The common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be
exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power.

On the facts considered in S10/2011 the occasion for operation of such a condition did not arise because each plaintiff had had all matters of
relevance to their individual circumstances taken into account through the merits review processes and these had been exhausted. Thus the majority
held at [100]:

Upon their proper construction, and in their application to the present cases, the dispensing provisions are not conditioned on observance of the
principles of procedural fairness. [emphasis added]

By the underlined words the majority contemplated that those same provisions might be conditioned on the observance of procedural fairness if the facts
were different.

Unlike S10/2011, in its reasoning in SZSSJ at [123], the Court identified the character of the interest of SZSSJ which was apt to be
affected by a refusal to exercise the power conferred by the dispensing provisions to permit an application for a protection visa. The improper disclosure
by the Department of confidential information of SZSSJ created a risk that he might suffer significant harm upon refoulement. In circumstances
where the Migration Act operated so that all other review opportunities had been exhausted, any exercise or refusal to exercise the powers
conferred by the dispensing provisions would determine whether SZSSJ was exposed to any such risk. That was an interest of SZSSJ that arose from facts
particular to him. However it was an interest apt to be affected by the exercise of the statutory power. Consequently the condition implied by the
common law had work to do.


It was not necessary for the Court in SZSSJ to rely upon the representations of the decision maker as the source of an obligation to accord procedural
fairness and it is doubtful that the Court’s reliance upon those representations as a source of any obligation to accord procedural fairness (as distinct
from the content of any such obligation) was soundly based.

Rather, the facts of the case highlight the significant weight to be placed upon the character of the interests of individuals apt to be affected by the
exercise of a power conferred by statute as required by the reasoning of the majority in S10/2011.

The formulation by the majority in S10/2011 of the circumstance in which the common law implies a requirement of procedural fairness facilitates
a conclusion that a particular statutory provision may be qualified by the obligation to accord procedural fairness in some fact situations, while
not being so qualified in others.

The decision in SZSSJ stands with the decision in S10/2011 as an example where facts particular to the individual could properly be taken
into account to find that SZSSJ was entitled to procedural fairness in the exercise of a power, even though the exercise of that power did not require
procedural fairness in the generality of cases.

That leaves much work to be done by the facts of each case – but continues to deny to the doctrine of legitimate expectation any significant role in Australian
public law.

*Tom Brennan is Barrister, 13 Wentworth Selborne Chambers, Sydney NSW.


[1] [2015] FCAFC 125.

[2] (2012) 246 CLR 636.

[3] [1983] 2 AC 629.

[4] (2003) 214 CLR 1.

[5] (1990) 170 CLR 1 at 39.

[6] (1987) 163 CLR 378 at 411.

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