Kioa v West [1985] HCA 81; (1985) 159 CLR

Commonwealth Law Reports

The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...

 550, was a notable case decided in the High Court of Australia

High Court of Australia

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 regarding the extent and requirements of natural justice

Natural justice

Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...

 and procedural fairness

Due process

Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 in administrative decision making.

Background

Mr and Mrs Kioa, who were both from Tonga

Tonga

Tonga, officially the Kingdom of Tonga , is a state and an archipelago in the South Pacific Ocean, comprising 176 islands scattered over of ocean in the South Pacific...

, entered Australia on temporary entry permits in late 1981. When their permits expired they changed their address without informing authorities. Mr Kioa worked in Victoria

Victoria (Australia)

Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....

 until he was arrested as a prohibited immigrant in 1983. In the intervening period the Kioas had a daughter, who by virtue of her birth in Australia, was an Australian citizen. Mr Kioa explained that he overstayed his permit in order to earn money to send home to relatives who were suffering as a result of a cyclone in Tonga.

In October 1983, a delegate of the Minister for Immigration and Ethnic Affairs made a decision that the Kioas should be deported. In arriving at that decision the delegate took into account a departmental submission which, inter alia, submitted that Mr Kioa had been actively involved with people who were seeking to circumvent Australia’s immigration laws.

The Kioas unsuccessfully appealed the decision to the Federal Court

Federal Court of Australia

The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...

 and the Full Federal Court. They then appealed to the High Court.

Kioas' arguments

The Kioas' principal argument was that the decision maker had failed to afford them procedural fairness in not disclosing and allowing an opportunity to respond to the adverse allegations made in the departmental submission.

They further argued that the delegate had wrongly failed to take into account:

• the detrimental effect the decision may have on their child; and
• the provisions of the International Covenant on Civil and Political Rights
  International Covenant on Civil and Political Rights
  The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
  
   and the Declaration of the Rights of the Child
  Declaration of the Rights of the Child
  The Declaration of the Rights of the Child is the name given to a series of related children's rights proclamations drafted by Save the Children founder Eglantyne Jebb in 1923....
  
  .

The Full Court

The Full Court of the Federal Court held that the principles of natural justice did not apply to the decision to deport a person under the Migration Act and there was no evidence that the delegate had failed to take into account the interests of the Kioas' child. It was further held that the provisions of the Covenant and Declaration did not form part of Australian domestic law and were not required to be taken into account.

Administrative Decisions (Judicial Review) Act

Section 5(1)(a) of the Administrative Decisions (Judicial Review) Act provided that administrative decisions may be appealed on the ground that there had been a breach of the requirements of natural justice. The court unanimously held that this provision did not oblige a decision maker who was exercising a statutory power to observe the rules of natural justice. In the court's opinion the applicability of natural justice was to be determined by looking at the nature and circumstances of the decision to be made. Brennan J differed slightly in his opinion, contending that the question of whether natural justice applied was to be found through the process of statutory interpretation.

Applicability of natural justice

The court held by a majority of 4 to 1 (Gibbs CJ dissenting) that the rules of natural justice applied to a decision under the Migration Act to deport a prohibited immigrant. The court distinguished previous cases which had come to the opposite conclusion on the basis that these cases had been superseded by legislative development.

Adverse material

The majority also held that the failure to disclose the adverse allegations against Mr Kioa and allow him the opportunity to respond to the allegations amounted to a failure to afford the Kioas procedural fairness.

International agreements

The question of the applicability of international agreements was only considered by three of the justices (Gibbs CJ, Wilson & Brennan JJ). All three held that there was no legal obligation to consider the specific provisions of either the Covenant or the Declaration but that there was an obligation to take into account general humanitarian principles.

Consequences

The decision in Kioa marked a watershed in Australian administrative law. It radically increased the number of decisions to which natural justice and procedural fairness applied such that, today, the question is often not whether procedural fairness should be afforded but to what extent it should be afforded.