Procedural fairness not readily ousted

3 December 2018
Lionel Hogg, Partner, Brisbane

Administrative decision makers are subject to a common law duty to accord procedural fairness for decisions which affect rights, interests and legitimate expectations, unless the governing statute clearly provides otherwise.[1] This is a subset of the broader principle of legality, that courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms unless clear words are used[2].

In a recent case involving the development of the Adani mine[3], the Minister for Natural Resources and Mines granted mining leases within an area of land over which there was a registered claim for native title. The native title claimants sought to challenge the decision, arguing that the Minister, in breach of the rules of natural justice, based his decision on material going to the merit of their claim to native title without hearing from them on the question.

The mining lease applications were considered under the Mineral Resources Act 1989, which provided a detailed statutory scheme for considering objections to the application, ending in the Land Court, and limiting who may object, when and on what basis. The native title claimants did not lodge any objection under that scheme.

Because they did not object, the judge at first instance held that, on the proper interpretation of the legislation, the Minister was not bound to hear from them. The native title claimants appealed, arguing that the issue of whether native title had been extinguished was not one which they could have been expected to raise as an objector in the Land Court and it was not considered by that Court.

Ultimately, the matter was determined by the Court of Appeal reasoning that the Minister’s determination was not based on any finding about the extinguishment of native title, meaning that no denial of natural justice had occurred.

However, the Court of Appeal was not convinced that the statutory scheme was sufficient to exclude the common law requirement to accord procedural fairness. The Court acknowledged that such a scheme may influence the content of the duty – that is to provide “the means by which, ordinarily, procedural fairness can be afforded to a person who is opposed to the grant of the lease”[4] – but would not displace it. The Court postulated circumstances in which it might have been necessary for the Minister to ask the registered claimants for submissions, noting that the legislation did not prevent or excuse the Minister from doing so.

The Court of Appeal did not address the question of what may constitute a clear statutory intention, short of express words, to oust the requirement to accord procedural fairness. However, even a comprehensive statutory scheme for considering objections may not suffice. In principle, having to divine from a statutory scheme a legislative intention to deny a fundamental principle seems to be inconsistent with the requirement for absolute clarity insisted upon by numerous superior court decisions in Australia and elsewhere. Parliament has the freedom to choose clear words, if that is the desired outcome, and it should be held to that requirement. As Lord Hoffmann said in a celebrated English case –

[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.[5]

Key takeaway

There is a difference between a code of procedure for dealing with statutory applications or objections and a comprehensive statement of the requirements of natural justice. Having a code or scheme is significant, but its significance should not be overstated.[6] If Parliament seeks to deny fundamental rights to individuals, clear words are required.


[1] Kioa v West (1985) 159 CLR 550, 584 (Mason J).
[2] Potter v Minahan (1908) 7 CLR 277, 304; Bropho v Western Australia (1990) 171 CLR 1, 18; Coco v The Queen (1994) 179 CLR 427, 436–437; Lee v New South Wales Crime Commission [2013] HCA 39 [313]; R v Home Secretary; Ex parte Pierson [1998] AC 539, 587, 589.
[3] Burragubba v Minister for Natural Resources and Mines [2018] 2 Qd R 93.
[4] Burragubba (n3) 108 [54] (McMurdo JA).
[5] R v Home Secretary; Ex parte Simms [2000] 2 AC 115, 131.
[6] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 73 [43] (Gleeson CJ and Hayne J).

Authored by:
Lionel Hogg, Partner

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Get in touch