The Nature of Procedural Fairness - Essay Example

College: Lecturer: Procedural Fairness: Case Study Procedural fairness is one of the fundamental instruments inherent in the practice of administrative law. It entails a critical analysis of how executive decisions affect the welfare of the general public as well as the circumstantial interest of individuals as reiterated by (Groves & Lee, 2007: 268). In the same light, it is imperative to bear in mind that the application of procedural fairness is a matter of rational balance between issues of policy and appropriate justice as demonstrated in Kioa.1 This paper examines the facts presented in the hypothetical case of Jen who has been refused GM-Free accreditation licence by the WA Minister for Primary Industries Therefore, the arguments herein present the tenets of procedural fairness in relation to an appeal to review administrative decision which has purportedly denied the applicant the expected due PF in line with the prevailing legislation.2 In its chronology, this paper looks at the basis of power and evidence used by the decision maker to arrive at the resolution in question. On the other hand, the discussion hereafter considers the legal facts as to whether Jen can effectively invoke denial of PF success in a judicial review of the Minister’s decision. Presentation of Facts Primarily, the legal framework of administrative law provides that an applicant must have been aggrieved by an executive decision for which a judicial review is being sought (Halliday, 2004: 146). Moreover, the Commonwealth Law allows the aggrieved individual to seek judicial review of an administrative decision that has perpetually compromised his personal interest as distinguished by Edley (1992:139) in the case of FAI Insurance; Blyth District Hospital Inc v South Australian Health Commission.3 In the case presented before us, Jen applied to the WA Ministry of Primary Industries for accreditation as a GM-Free canola grower in line with the requirements of the WA Genetically Modified-Free Grain Security and Accreditation Act 2006. Unfortunately, the Minister denied her accreditation on grounds that her property was deficient of the provisions of Section 10 of the aforementioned Act hereinafter referred to as the Act. In arriving at the decision, the Minister instituted Section 5 assessment as well as subsequent Section 12 inspection to ascertain the integrity of Jen’s property as read with the Ministerial Policy to safeguard the public interest against GMO contamination. Prior to Jen’s application, there was a prevailing Ministerial Policy advising against GM-Free accreditation for growers operating farms adjacent to the major highways in Western Australia. The policy was announced to the public following an accident at Albany involving a truck loaded with genetically modified canola. Jen’s farm was indeed adjacent to Goldfields Highway in Green Patch along which several grain haulers passed hence the fear of possible contamination by GM canola seeds. Nevertheless, Jen adopted the Alliance’s protocols and practices to protect her from potential GM contamination in accordance with Section 10 of the GM-Free Security and Accreditation Act 2006. Despite the fact that the decision maker acted in line with the stipulated legislation, it apparently seem that his actions failed to satisfy the prerequisite modus operandi to deny the applicant procedural fairness. He not only relied on the public policy but also failed to disclose critical information to the inspecting officer whose opinion formed the basis of the final decision. Besides, the inspector thereof was not well positioned to exclusively determine the standard protocols and controls inherent in agricultural practice. Thus, the inspector herein referred to as Sam only did what he deemed fit thereby overlooking the required duty to afford the applicant procedural fairness. It is on these grounds that Jen is applying for judicial review of the said decision. The Right and Duty of Procedural Fairness According to Withnall and Evans (2010:93), it is paramount to first determine whether there was any duty of PF before one can evaluate whether such duty was compromised by the decision maker. In this case, Jen duly applied for accreditation as outlined in Section 4(a) of the Act. Secondly, she took all practicable measures to ensure that her property meets the provisions of the Act prior to her application. On the other hand, Jen only applied to the Ministry of Primary Industries which is the regulatory authority as far as GM-Free accreditation is concerned. Lastly, Jen could not be registered into membership by the Green Patch GM-free Grain Producers Alliance without due accreditation by the relevant authority which in this case happened to be the WA Minister for Primary Industries. Thereafter, the regulator assessed the property and certified that it met the required standards beyond the protocols of Section 10. She also recommended that the applicant be granted accreditation subject to Section 12 of the Act. That notwithstanding, it is good to consider that the Minister apparently appreciated the regulator’s report and proceeded to instruct his senior staff to conduct the inspection accordingly. By invoking Section 12, the Minister’s implied that the applicant had a right to PF as observed by Withnall & Evans (2004) in Bond v Australian Broadcasting Tribunal [1988].4 The tribunal held that an inquiry initiated for purposes of public interest limits individual’s right to PF. However, when such inquiry or inspection is ordered for the sake of individual’s interest, then it confers the right of the applicant to procedural fairness (Edley, 1992:140). In further determination of Jen’s right to procedural fairness, the case can be analysed in terms of the perceived impact of the said decision. If the accreditation authority failed to approve Jen’s application, then she would not be admitted by the Alliance. Besides, the decision implied that the property was not sound for production of GM-Free grains as stipulated in Section 10(i). It follows therefore, that the decision to deny Jen GM-Free accreditation directly affected her interest as an entity as opposed to the all-purpose public. That by itself affirmed Jen’s right to procedural fairness as reiterated by Groves and Lee (2007:269) in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003). 5 In State of SA v OShea [1987] 73 ALR 1, the bench held that if the applicant were to be licensed, then the decision thereto would affect a large proportion of the population.6 Thus, OShea could not succeed on grounds of denied procedural fairness. Nonetheless, the decision to deny Jen GM-Free accreditation only affected individual interest, hence the right to procedural fairness as applied in Blyth District Hospital Inc v South Australian Health Commission [1988] 49 SASR 501. On the contrary, the discretionary powers of the decision maker meant that Jen’s future production of certified GM-free canola would significantly be impaired by the decision. As such, the authority owed Jen the duty of procedural fairness as demonstrated in Johns v Release on Licence Board (Halliday, 2004:149).7 In his ruling, the presiding judge observed that the impact of the decision explicitly affected the applicant’s interest hence the more burdensome it was for the authority to afford the applicant appropriate duty of procedural fairness. Breach of Procedural Fairness Having established that Jen had a right to procedural fairness, it is important to examine the extent to which the decision maker ought to have gone to afford her the claimed procedural fairness. First and foremost, the Commonwealth law requires the decision maker to consider all reasonable facts deemed relevant to the application presented thereto in line with Section 4(c) of the Act. Secondly, the it is a matter of necessity of the decision maker to avail all critical information to the tribunal or the agency entrusted with the duty to assess the details of the application for purposes of making the most appropriate and fair decision as applied by Section 14 of the WA Migration Act, 2000 (Groves & Lee, 2007:215). The third component of law demands that the authority should consider other sets of information such as reports and documented evidence from ascribed agencies or databases in order to exhaust all options towards affording the applicant procedural fairness. In the event that these requirements are undermined in the decision making process, then the applicant would be justified to seek judicial review for an infringing decision as observed by Edley (1992: 142). According to Halliday (2004:150), this is the first step in determining a breach of procedural fairness. In the case of Jen, the Minister did not provide his inspection officer with the Regulator’s report which in essence was quite detailed, professionally informative and well annexed with vital protocol facts. Furthermore, the applicant reasonably assumed that the inspecting authority possessed the relevant details and information inherent in her case in line with the provision of Section 12 inspection of GM-Free agricultural fields. According to Withnall and Evans (2004:96), the Minister who was the principal decision maker perpetually breached the duty to procedural fairness as affirmed by and Groves and Lee (2007:270). Notwithstanding the fact that the inspector has not considered critical information generated by the Biosecurity Regulator, he failed to make any efforts of obtaining any other set of information that would justify the rational of a decision made thereafter. It is apparently disturbing to note that the inspector did not give the applicant sufficient opportunity to provide evidence of the precautionary protocol and buffers she adopted to protect the farm from potential GMO contamination. Thus, the inspector only relied on the public policy rather than professional opinion of the location condition within which Jen sought GM-Free accreditation.8 To that end, the inspecting authority undermined the need to ascertain the primary elements of Section 10 (ii)-(vi) of the Act. The Minister acted upon the inspector’s report with minimal attention. He only perused through the latter report over a ‘quick lunch’ and concluded that Jen’s proper did not meet the requirements of Section 10. He therefore denied the applicant accreditation without taking into account the recommendations of the Biosecurity Regulator whose report asserted that Jen’s property and agricultural practices impressively meet and surpassed the provisions of Section 10. As a result, the decision maker ignored critical information whose consideration would have resulted in a different outcome which in essence indicate that the Minister intended exclude procedural fairness in the case of Jen.9 Conclusion The discretionary powers applied by the Minister in the case of Jen undermined the purposes of the Act. It construed breach of procedural fairness, especially when such decision significantly impacted the individual interest of the applicant as determined in judicial precedence. Therefore, Jen can succeed in her application for judicial review of the Minister’s decision. Work Cited Edley, C. Administrative Law: Rethinking Judicial Control of Bureaucracy. New Haven, CT: Yale University Press, 1992. Print. Groves, M. & Lee, H. Australian Administrative Law: Fundamentals, Principles, and Doctrines. Cambridge: Cambridge University Press, 2007. Print. Halliday, S. Judicial Review and Compliance with Administrative Law. Oxford: Hart Publishing, 2004. Print. Withnall, S. & Evans, M. Administrative Law. London: LexisNexis Butterworths, 2010. Print. Case Law Bond v Australian Broadcasting Tribunal (No. 2) (1988) 84 ALR 646 FAI Insurance; Blyth District Hospital Inc v SA Health Commission (1988) 49 SASR 501 Johns v Release on Licence Board and Others (1987) 9 NSWLR 103 Kioa v West (1985) 159 CLR 550 Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1. State of South Australia v OShea [1987] 73 ALR 1 Legislation Genetically Modified-Free Grain Security and Accreditation Act 2006 (WA) Migration Act, 2000 (WA) Read More