AUSTRALIAN BROADCASTING TRIBUNAL v. BOND & ORS
(1990) 170 CLR 321(1990) F.C. 900/32
(Judgment by: DEANE J)
Between: AUSTRALIAN BROADCASTING TRIBUNAL
And: BOND & ORS
Judges:
Mason CJ
Brennan J
Deane JToohey J
Gaudron J
Subject References:
Administrative Law (Cth)
Broadcasting and Television
Judgment date: 26 July 1990
Judgment by:
DEANE J
There was a time when it was customary to refer to the duty of a non-curial statutory decision-maker to observe common law requirements of fairness and detachment in certain circumstances as a "duty to act judicially" (see, e.g., Testro Bros. Pty. Ltd. v. Tait (1963) 109 CLR 353 , at pp 365, 369, 370; Board of Education v. Rice [1911] AC 179 , at p 182; R. v. Electricity Commissioners [1924] 1 KB 171 , at p 205; Local Government Board v. Arlidge [1915] AC 120, at p 132). There were, however, disadvantages in that phraseology. For one thing, as Lord Diplock pointed out in O'Reilly v. Mackman [1983] 2 AC 237, at p 279, it tended to give rise to, and preserve, subtle and often confusing distinctions between decisions that were "quasi-judicial" and those that were "merely" administrative. For another, particularly in this country where there is a constitutional barrier against the conferral of any part of the judicial power of the Commonwealth upon an administrative decision-maker, it involved the potential for confusion between an obligation to act judicially and the well-settled notion of exercising judicial power.
In time, the common law obligation of a statutory decision-maker to act judicially in certain circumstances came to be ordinarily referred to as the obligation to act in accordance with the requirements of "natural justice". Here again, however, there was a potential for confusion: between the relevant common law requirements of fairness and detachment and the jurisprudence of wider theological and civilian perceptions of natural law. These days, it is customary and convenient in this country to avoid references to "acting judicially" or "natural justice" and to speak of the "requirements of procedural fairness" when referring to the fairness and detachment required of a person entrusted with statutory power or authority to make an administrative decision which may adversely and directly affect the rights, interest, status or legitimate expectations of another in his, her or its individual capacity.
That evolution of terminology should not, however, be permitted to constrict the content of such an obligation to a mere requirement to observe some surface formalities. A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. As I pointed out in Minister for Immigration and Ethnic Affairs v. Pochi (1980) 44 FLR 41 , at p 67; 31 ALR 666 , at p 689, it would be both surprising and illogical if such a duty involved mere surface formalities and left the decision-maker free to make a completely arbitrary decision. If the actual decision could be based on considerations which were irrelevant or irrational or on findings or inferences of fact which were not supported by some probative material or logical grounds, the common law's insistence upon the observance of such a duty would represent a guarantee of little more than a potentially futile and misleading facade. If the decision were determined by the toss of a coin or some other arbitrary procedure, the "right" to a hearing would be illusory. If the decision could be based on unreasoned prejudice, the audi alteram partem rule would be pointless.
2. As has been often said, the precise content of the obligation of a statutory tribunal to act judicially or to observe the requirements of natural justice or procedural fairness may vary according to the statutory framework of the particular proceedings and the circumstances of the individual case: "the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth" (per Tucker L.J., Russell v. Duke of Norfolk [1949] 1 All ER 109 , at p 118). That being so, the content of the obligation is not susceptible of precise definition otherwise than in the particular circumstances of a given case. The most that one can do is identify its ordinary incidents. Obviously enough, those incidents include the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard. In the following paragraph, I identify what I see as the other more important incidents of the obligation. In so doing, I have treated what are sometimes referred to as "Wednesbury principles" (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 , at pp 229-233) as encompassed by the obligation to act judicially in cases where that obligation exists (but cf., for a contrary approach, Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 , at pp 410-411, 414-415).
3. If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of "proportionality" (cf. the C.C.S.U. Case, at p 410). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision- making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
4. There is nothing in either the provisions of the Broadcasting Act 1942 (Cth) or the particular circumstances which had the effect of excluding or modifying any of the above incidents of the Tribunal's duty to act judicially in the present case. That being so, it was necessary that any findings of fact made by the Tribunal, upon which a reviewable "decision" was based, were supported by some probative material which was properly before the Tribunal. If a finding of fact was not so supported, a "decision" which was based upon it was invalid. In that regard, it would matter not that the decision could be supported by some other finding of fact which was open to the Tribunal but which the Tribunal had not made. The point can be illustrated by reference to a hypothetical case where a decision could be supported by either a finding of fact A or a finding of fact B and where there was probative material to support a finding of A but no probative material at all to support a finding of B. If, in such a case, the Tribunal stated that it made no finding about, and placed no reliance upon, A but based a reviewable "decision" on a positive finding of B, the Tribunal would have failed to discharge its duty to act judicially. Its decision would be based on a finding of fact which, being unsupported by any probative material, was, as a matter of law, not open. It would simply be irrelevant to say that there was probative evidence upon which the Tribunal had not relied which would have supported a finding of A which the Tribunal had neither made nor relied upon. Therein, to my mind, lies the compelling force of the approach adopted in English cases, such as Reg. v. Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 , at p 488, which are referred to in the judgment of the Chief Justice and which accord to the common law requirements of natural justice or procedural fairness a concern with substance as well as form by recognizing that a decision made in compliance with those requirements must be "based" upon probative and relevant material (see, also, Mahon v. Air New Zealand (1984) AC 808, at pp 820-821).
5. At one stage in the course of argument in the present case, it appeared to me that the Tribunal's "decision" that each of the licensee companies was no longer a fit and proper person to hold its licence was relevantly based on a finding of fact that Mr. Bond and Mr. Aspinall had deliberately misled the Tribunal in the earlier Brisbane Inquiry and that that finding of fact was, in turn, based upon a finding that, as a matter of fact, no witness from the Bond group at the Brisbane Inquiry suggested that there had been any "conception" that the information which the Bond company was required to supply was strictly limited to a response to specific matters which had been raised by the Queensland Branch of the Australian Labor Party. That last-mentioned finding of fact was plainly and demonstrably wrong. It was not, in the circumstances, supported by probative material before the Tribunal. Careful consideration of the reasons of the Tribunal has, however, led me to conclude that the Tribunal's conclusion that Mr. Bond and Mr. Aspinall had deliberately misled the Tribunal in the earlier Brisbane Inquiry was not based on that mistaken finding of fact. Consequently, the decision about the lack of fitness and propriety of the licensee companies was not affected by it.
6. Subject to the foregoing, I agree with the judgment of the Chief Justice.