Challenging methods or Procedures

Standards of conduct

In this challenge to an administrator’s decision or action, the citizen will say the administrative body or official did not follow proper procedures in reaching its conclusion. Here, it is not necessary to be concerned with the reasons given. Often the reasons given will be perfectly legal, or the action taken will clearly be within the authority of the administrative body. But the law has always insisted that minimum standards of conduct must be followed by the government in dealing with the community.

Anyone who wishes to attack an administrative decision should look at the Act permitting that decision to see what procedures were required and ask the following questions:

• What official or body was required to take the action? Did it do so? For example, is any letter or order required to be signed by it?
• Was it required to give people a hearing before reaching its conclusion? Did it do so?
• Was it required to place advertisements in local newspapers or give some other type of notice to, for example, the local community before taking action? Did it do so?
• Were any time periods built into the process as to, for example, the period of public notice, period for receipt of objections, period for appeal against decision before any action could be taken? Were these complied with?
• Was it required to consult with any outside bodies or individuals before reaching its decision? Did it do so?

If there has been any irregularity in following the terms of the Act, someone may have a basis for obtaining judicial review of that decision.

Irregularities

Depending on the strictness of the language of the legislation, the procedures set down for the administrative body to follow may be mandatory (that is, obligatory). Here, any irregularity, however insignificant, is sufficient to bring down the process. The courts insist on rigid adherence to mandatory procedures. A good example is the procedures required to establish a blood alcohol reading in a breathalyser test.

There is a problem here however. In many situations where an Act appears to suggest that a procedure is mandatory, for example, by the use of strong words like “must” and “shall”, courts decide it would be too rigid to insist on exact compliance with the letter of the law by clerical officers within the decision-making body. In these cases, the requirements are treated as being merely directory (that is, discretionary) rather than mandatory. Where words like “may” or “if it thinks fit” are used, the procedure is almost certain to be treated as directory. It is much more difficult to challenge an administrator’s action where procedures are directory; in that case it is necessary to show substantial non-compliance with procedural requirements.
Government bodies are usually scrupulous in adhering to procedures under legislation. Well-paid and experienced officials usually look after these matters (often they are called “Registrars”, “Secretaries” or “Executive Officers”). But if there has been any slip-up, it is worth considering the possibility of an attack on this basis.

Natural Justice

The challenge to procedure mentioned above may be made against any type of administrative decision or action. However the principles of natural justice (today sometimes described as ‘the duty to comply with procedural fairness’) do not apply to all administrative decision-making situations. They only bind administrative bodies where a judgment is being made which may interfere with a significant interest of the individual. Over the years the courts have widened the definition of significant interest to include legitimate expectations; where an individual may have a legitimate expectation that they satisfy express statutory criteria, or where an assurance has been given or where a regular course of conduct has been followed.

A legitimate expectation which may be induced by a regular course of conduct or an undertaking on the part of administrative body is also protected by these rules. A clear indication of this can be found in a High Court decision holding that natural justice had to be accorded to a man who had been warned off a racecourse, because he had a legitimate expectation (along with other members of the public) that when he presented himself at the entrance to the racecourse he would be admitted upon payment of the appropriate fee (Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487).

When a right, interest or legitimate expectation exists, there will be a duty to act fairly unless there is a clear manifestation of a contrary intention in the statute conferring the power to make the decision which affects that right, duty or legitimate expectation.

A good example of the increasing application of the rules of natural justice to the administrative process is the case of Annetts v McCann (1990) 170 CLR 596. A coroner conducted an inquest into the deaths of two boys who had died in the desert in Western Australia. One appeared to have died from a gunshot wound and the other from thirst. The parents of the boys had been represented by counsel and at the end of the evidence, counsel for the parents of the boy who had died from thirst told the coroner that he wished to make a closing address. The majority of the High Court held that the coroner should reconsider his decision to refuse this request. As the Coroner’s Act enabled persons to attend and examine and cross-examine witnesses, it created a legitimate expectation in the parents of the boys that the coroner would not make any adverse findings against their deceased sons without allowing the parents concerned an opportunity to oppose that finding.

At one time the tendency was to restrict natural justice to bodies which functioned similarly to courts but this is no longer so.

Licensing bodies provide a typical example. A person may require a licence to carry on an occupation. Usually, if a body having control of that occupation threatens to take away that licence, it must give that person natural justice.

If a person’s business reputation is damaged by, say, being named on a black list of building contractors by a government-established task force without being given an opportunity to respond, they have been denied natural justice (Victoria v Master Builders Association (1995) 2 VR 121).

Hearing rule

If a situation is one where natural justice should be given, the next question is what procedures should have been followed. The Act governing the body, or official responsible for the decision, usually lays down the procedure. These Acts usually answer questions such as the following:

• how much notice must be given of a hearing before it is held by a tribunal?
• can a person appearing before a tribunal have legal representation?
• how many persons must sit on a tribunal?
• are the proceedings governed by strict rules about the presentation of evidence?
• is a party entitled to cross examine?
• The function of the common law rules of natural justice is to deal mainly with situations where Acts have said nothing about what should amount to a fair hearing. The matters which most often lead to a finding in favour of the citizen are these:
• failure to give adequate notice of a hearing;
• failure to allow legal representation; and
• failure to give a person a sufficient opportunity to present their case.

No bias rule

The requirement that a fair hearing be given is one rule of natural justice. The other is that the proceedings should be free from bias. This is an area where little is usually said by the Act. The courts have adopted the strict position that a person cannot sit in judgment where their financial interests may be affected by the outcome of the case. So, for example, a member of a planning tribunal could not sit on a planning application from a company in which they hold shares. The financial interest aspect of the matter is clear-cut.

But there are obviously other situations where a person may be biased. A member of a tribunal may be a relative of one of the parties, have had a past professional association with one of the parties, or in the past expressed hostility to views being put by one of the parties.

Generally speaking, a tribunal will be considered to be biased if a member is related by blood to one of the parties. But bias may be established as a result of past friendships or professional associations, or because the tribunal has privately expressed views on the subject matter in dispute. The common law is much less clear-cut in this situation. A lot depends upon the status of the tribunal, the significance of the decision-making body and the extent of the comment or association which is in issue. The general standard used by the courts is to ask whether a reasonable person would have suspected that the decision made by the body was not free from bias.