Kioa v West

159 CLR 550

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(Judgment by: BRENNAN J)

Between: KIOA
And: WEST

Court:

Judges: Gibbs C.J.
Mason J.
Wilson J.

Brennan J.Deane J.

Subject References:
Immigration and Aliens
Administrative Law

Judgment date: 18 December 1985

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Judgment by:
BRENNAN J

Mr and Mrs Kioa arrived in Australia from Tonga in 1981. Mr Kioa came first. As a student, he was granted a temporary entry permit which expired on 8 December 1981. Mrs Kioa and their daughter Elitisi followed. Mrs Kioa was granted a temporary entry permit which expired on 31 March 1982. When Mr Kioa's entry permit expired he applied to be allowed to remain in Australia until 31 March 1982. No decision was made on that application until 12 September 1983. Mr and Mrs Kioa and Elitisi did not leave Australia on 31 March 1982; they remained in Australia and are still in this country. Another daughter, Elvina, was born here on 14 November 1982. On 6 October 1983, orders for the deportation of Mr and Mrs Kioa were made pursuant to s 18 of the Migration Act 1958 (Cth) ("the Act"). As the Act stood at the time, s 18 provided:

"The Minister may order the deportation of a person who is a prohibited immigrant under any provision of this Act."

The orders were made by a deputy secretary of the Department of Immigration and Ethnic Affairs, an officer to whom the Minister had delegated his power pursuant to s 66D of the Act.

Mr and Mrs Kioa had become prohibited immigrants when their respective temporary entry permits expired (s 7(3)). As they had become prohibited immigrants upon the expiration of a temporary permit each of them was guilty of an offence against the Act (s 27(1)(ab)) but it was possible to avoid conviction for that offence if a further entry permit had come into force after the temporary entry permit had expired (s 27(2A)). Temporary entry permits to remain in Australia can be granted to an immigrant after his entry into Australia (s 6(3) and (5)). An entry permit other than a temporary entry permit cannot be granted to an immigrant after his entry into Australia unless he satisfies one or more of the conditions specified in s 6A(1). Neither a further temporary entry permit nor a permanent entry permit was granted to Mr or Mrs Kioa. At the time when the deportation orders were made Mr and Mrs Kioa were therefore prohibited immigrants liable to the making of a deportation order under s 18. In addition, they were liable to prosecution as for an offence under s 27(1)(ab) and they were unable to raise the defence prescribed by s 27(2A). As prohibited immigrants, they were liable to be arrested and kept in custody pending consideration of the making of a deportation order (s 38). They could have been required to leave Australia within a time specified by the Minister or an authorized officer and they would have been bound to comply with any such requirement under pain of conviction (s 31A). Upon the making of the deportation orders, they became liable to be arrested and kept in custody pending deportation (s 39) and liable to pay the Commonwealth an amount determined by the Minister to be the daily maintenance amount payable in respect of their custody (s 21A(7)). If the Commonwealth should make arrangements for their conveyance from Australia to Tonga, they would be liable to pay the Commonwealth an amount equal to the fares and other charges of conveyance (s 21A(1)).

In March 1982, Mr Kioa had commenced to work at Bulleen in Victoria. He was arrested at his place of work on 25 July 1983, and kept in custody until he was released on reporting conditions on 5 August 1983. The day after his arrest the Director of the Legal Aid Commission of Victoria wrote to the Minister on behalf of Mr Kioa. After submitting a number of reasons why Mr Kioa should be allowed to remain in Australia the letter stated:

" ... Mr Kioa would like to remain in Australia and we would hope that you will exercise your discretion to allow him and his family to do so."

To be entitled to remain in Australia, Mr and Mrs Kioa would have to be granted permanent entry permits. They would have to satisfy one or more of the conditions specified in s 6A(1). The only condition which either Mr or Mrs Kioa might have hoped to satisfy was the condition specified in s 6A(1)(e), namely,

"he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

But neither Mr Kioa nor Mrs Kioa held a temporary entry permit after the dates of expiry of their original permits. Mr Kioa's application for a further temporary entry permit, though made in December 1981, was not dealt with until 12 September 1983 when a decision to refuse the application was made. However, it is common ground that a further temporary entry permit could have been granted under ss 6 and 7(2). If, in order to allow the Kioa family to remain in Australia, temporary entry permits and permanent entry permits had been issued, Mr and Mrs Kioa would have shed the status of prohibited immigrant, they would no longer have been liable to arrest, they would not have been liable to conviction as for an offence under s 27(1)(ab) and they would not have been subject to the liabilities imposed by ss 31A and 21A.

In reaching his decision to make the deportation orders, the delegate of the Minister considered whether to refuse the grant of temporary entry permits and permanent entry permits. This appears from the reasons for his decision furnished pursuant to Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The reasons contained the following:

"27 While a permanent entry permit may not be granted to the applicants after their entry to Australia by reason of section 6A(1) of the Act, I accepted that it was possible to direct the grant of a further temporary entry permit to them for the purpose of allowing consideration of an application for grant of (permanent) entry permit on the basis that the conditions of section 6A(1)(e) of the Act are fulfilled. Accordingly I considered whether, apart from the fact that the applicants do not hold temporary entry permits in force, there are strong compassionate or humanitarian grounds for the grant of (permanent) entry permits to them.

28 ... However I was of the view that in all the circumstances there were no strong humanitarian or compassionate grounds for the grant to them of (permanent) entry permits."

When the delegate was making his decision, he had a number of documents before him for consideration. One of them was the submission by the Director of the Legal Aid Commission on behalf of Mr Kioa. Another was a departmental submission which recommended deportation and which made certain observations adverse to Mr Kioa's application. In particular, the departmental submission contained the following paragraph:

"22 Mr Kioa's alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia's immigration laws must be a source of concern."

There was no oral hearing nor any exchange of correspondence between the department on the one hand and Mr and Mrs Kioa or their representative on the other before the delegate made his decision to order deportation. In his statement of reasons for decision, the delegate reviewed certain conduct of Mr and Mrs Kioa, not including the conduct attributed to Mr Kioa in par.22 of the departmental submission, but he said with reference to other conduct which he found established:

"30 I considered that these actions constituted a blatant disregard for the normal migration selection procedures and the migration law. I considered nonetheless the circumstances of their case, in particular as set out in paragraphs 17 and 28 above, but decided that their expulsion from Australia was appropriate. I considered that the application of the stated policy set out in paragraph 22(b) supra was appropriate and just. In all the circumstances I decided to order their deportation."

The policy to which the delegate referred is not set out in par.22(b). The reference is, I think, to the policy stated in sub-par.(b) of par.23(h), namely, "it is in the public interest to ensure that persons abide by normal immigration selection procedures and do not queue-jump by remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures".

After the deportation orders were made the respondents applied to the Federal Court of Australia for an order of review of the decision to make deportation orders and of the decision not to grant further temporary entry permits and not to grant permanent entry permits. The attack on the validity of the decision to make the deportation orders was made on several grounds but the chief ground which is presently material is that the Minister "failed to observe principles of natural justice in that he failed to allow (Mr and Mrs Kioa) a proper hearing in relation to matters affecting their deportation". The ground thus raised encountered the formidable obstacle that in two judgments of this Court - Salemi v. MacKellar (No 2) (1977) 137 CLR 396 and Reg. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 - it was held that requirements of natural justice did not affect the exercise of the power to order deportation under s 18 of the Act. That was the opinion of the statutory majority (Barwick C.J., Gibbs and Aickin JJ.) in Salemi (No 2) and that opinion was maintained by a majority in Ex parte Ratu, including Mason J. who had not sat in Salemi (No 2).

The argument now addressed on behalf of Mr and Mrs Kioa does not seek a reconsideration of the correctness of those cases in relation to the Act as it then stood. The argument relies on amendments to the Act in 1979 and 1980. It is submitted that the amended text and operation of the Act at the time when the impugned decision was made on 6 October 1983 compel a different conclusion from the conclusion founded on the Act as it stood in 1977. (The Migration Amendment Act 1983 (Cth) did not come into operation before the impugned decision was made.) The significant amendments which had been made in 1979 and 1980 included the insertion of s 6A which specified the conditions which had to be fulfilled before an immigrant who had entered Australia could be granted a permanent entry permit, the insertion of s 21A which exposed a deportee to pecuniary liabilities for the cost of his conveyance from Australia and for the cost of his daily maintenance during detention pending deportation, and the insertion of s 27(1)(ab) and (2A) which made a person who became a prohibited immigrant upon expiration of a temporary entry permit guilty of a criminal offence and liable to penalty unless he satisfied the court that a further entry permit had subsequently come into force or that he had remained in Australia for five years and no deportation order had been made against him. In addition, the ADJR Act had come into force prescribing a ground for an order of review to be "that a breach of the rules of natural justice occurred in connection with the making of the decision" (s 5(1)(a)) and requiring decision-makers to furnish on request a statement of reasons for decision unless the case falls within certain exceptions none of which applies in the present case (s 13). A limited jurisdiction to review decisions made under ss 12,13 and 48 of the Act was conferred on the Administrative Appeals Tribunal by s 66E of the Act, inserted in 1981, but that provision merely transposed into the Act the provision theretofore contained in Part XXII of the Schedule to the Administrative Appeals Tribunal Act 1975 (Cth). To ascertain the significance of the legislative changes made in 1979 and 1980, it is desirable to restate the relevant principles which, as Barwick C.J. said in Salemi (No 2) (at p 400) somewhat optimistically, "are both fundamental and, in my opinion, fairly well settled".

At base, the jurisdiction of a court judicially to review a decision made in the exercise of a statutory power on the ground that the decision-maker has not observed the principles of natural justice depends upon the legislature's intention that observance of the principles of natural justice is a condition of the valid exercise of the power. That is clear enough when the condition is expressed; it is seen more dimly when the condition is implied, for then the condition is attributed by judicial construction of the statute. In either case, the statute determines whether the exercise of the power is conditioned on the observance of the principles of natural justice. The statute is construed, as all statutes are construed, against a background of common law notions of justice and fairness and, when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that "the justice of the common law will supply the omission of the legislature" (Cooper v. Wandsworth Board of Works (1863) 14 CB(N.S.) 180, at p 194 (143 ER 414 at p 420)). The true intention of the legislature is thus ascertained. When the legislature creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention (cf. Twist v. Randwick Municipal Council (1976) 136 CLR 106 , at pp 110,112-113, 118; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 , at pp 491,498-499). The presumption may apply to powers classified as legislative or administrative as well as to powers classified as quasi-judicial (Bread Manufacturers of NSW v. Evans (1981) 56 ALJR 89, at p 94; 38 ALR 93 , at pp 102-103).

In Salemi (No 2) Barwick C.J. (at p 401) pointed to the correspondence between legislative intention derived from the statute and the grounds on which the courts exercise their jurisdiction to review the exercise of statutory power:

"The courts by construction of the statute educe and make express the qualification of the granted power inherent in the statute. Having decided that the statute makes the exercise of the power contingent on the observance of natural justice, the courts then decide what is required in the particular circumstances to satisfy the statute so construed. But it is fundamental that what the courts do in qualifying the powers is no more than to construe the statute. Failure to meet the qualification of the power, that is to accord natural justice in the manner which the courts decide is required in the circumstances, results in invalidity of the decision or act, because neither is authorized by the statute as construed by the courts."

Gibbs J. said, at p 419:

"The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf. Durayappah v. Fernando ( [1967] 2 AC 337 , at p 350))."

As Mason J. said in Ex parte Ratu, at p 475:

"Whether the rules of natural justice apply to the making of a deportation order under s 18 of the Act and what those rules require is fundamentally a question of statutory construction."

And Jacobs J. in Salemi (No 2), at p 451, accepted "that in the case of statutory provisions it is always a matter of discovering the intention of the legislature". I venture to repeat what I said in F.A.I. Insurances Ltd. v. Winneke (1982) 151 CLR 342 , at p 409:

"The common law attributes to the legislature an intention that the principles of natural justice be applied in the exercise of certain statutory powers, and the legislature's intention provides the sole and sufficient warrant for judicial review of the exercise of those powers when an applicable rule of natural justice is not observed. And so, where a challenge to the validity of an exercise of a statutory power is made on the grounds that a rule of natural justice has not been observed, the true foundation for the challenge is that a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled and that an exercise of the power is not efficacious unless the condition is fulfilled."

Observance of the principles of natural justice is a condition attached to the power whose exercise it governs. There is no free-standing common law right to be accorded natural justice by the repository of a statutory power. There is no right to be accorded natural justice which exists independently of statute and which, in the event of a contravention, can be invoked to invalidate executive action taken in due exercise of a statutory power. There is no "right " except in the sense that a person may be entitled to apply to have a decision or action taken in purported exercise of the power set aside if the principles of natural justice have not been observed or to compel the repository of a power to observe procedures which statute obliges him to follow.

In England, a jurisdiction judicially to review executive action carried out in pursuance of the prerogative was asserted in Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374 (hereafter "C.C.S.U.") although there was no statutory foundation for that jurisdiction. It may be that, as constitutional tradition favours a government of laws rather than a government of men, there is an inducement for the courts to declare the law which should govern the exercise of what would otherwise be unreviewable executive power and to exercise their ordinary jurisdiction to review executive action according to the law thus declared. It may be that the common law determines not only the scope of the prerogative but the procedure by which it is exercised. That problem does not fall for consideration here. The supremacy of Parliament, a doctrine deeply imbedded in our constitutional law and congruent with our democratic traditions, requires the courts to declare the validity or invalidity of executive action taken in purported exercise of a statutory power in accordance with criteria expressed or implied by statute. There is no jurisdiction to declare a purported exercise of statutory power invalid for failure to comply with procedural requirements other than those expressly or impliedly prescribed by statute.

The question whether a statutory power is conditioned on the observance of the principles of natural justice demands a universal answer for it is a question of construction. Such a condition governs every exercise of the power including every refusal to exercise it. It is therefore possible to state - as it was stated in Salemi (No 2) and Ex parte Ratu - in reference to a given statutory power that its exercise is never conditioned on the observance of the principles of natural justice. But when the exercise of a statutory power is so conditioned, regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition. It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed. As Barwick C.J. said in Ex parte Ratu, at pp 465-466, "what would need to be done to satisfy that requirement may vary according to the circumstances, but the qualification will be universal".

Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power: the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances. It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances. In Salemi (No 2) Jacobs J. said (at p 451):

"The legislature is assumed by the courts to be aware of the principles of natural justice which are a part of the common law. The application of those principles depends on the circumstances of the case. It is seldom possible to say in the case of the exercise of any particular statutory power 'All the principles which have ever been applied in ensuring natural justice will here apply' or on the other hand 'Natural justice was intended to be wholly excluded'. The questions which must be asked are - in particular circumstances such as exist in this case did the legislature intend that the principles of natural justice should be wholly excluded? If not, what particular principles should be applied? I recognize that the search for legislative intention can be described as somewhat artificial. What the courts do in the absence of express legislative intentionis to ensure that power, whether it be judicial or quasi-judicial or executive, be exercised fairly, weighing the interests of the individual and the interests of society as a whole."

I would adopt this view though I should state my understanding of his Honour's question "what particular principles should be applied?". The content of the principles which the legislature intends to be applied in the circumstances of a particular case cannot be discovered by reference solely to the statute. Nevertheless, a legislative intention that the principles of natural justice apply is an intention that the principles appropriate to the circumstances of the particular case should apply.

The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker L.J. in an oft-cited passage in his judgment in Russell v. Duke of Norfolk [1949] 1 All ER 109 , at p 118:

"The requirements of natural justice must depend on the circumstances of the 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. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

In the Privy Council that passage was cited with approval in University of Ceylon v. Fernando [1960] 1 All ER 631 and again in Furnell v. Whangarei High Schools Bd. [1973] AC 660 where Lord Morris of Borth-y-Gest said, at p 679:

"Natural justice is but fairness writ large and juridically. It has been described as 'fair play in action.'"

The same view was adopted in the House of Lords: Wiseman v. Borneman [1971] AC 297 (at pp 308,309,311,314-315).

In this Court the flexibility of the principles of natural justice was recognized by Kitto J. in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 , at p 504:

"What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business."

In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 , at pp 552-553, the joint judgment of all members of this Court cited with approval passages I have cited from the judgments of Tucker L.J. and Kitto J. Their Honours said, (at p 553):

"It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances."

Again in Salemi (No 2) Stephen J. in his dissenting judgment (at p 444) said of the principles of natural justice:

" ... not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v. Baldwin per Lord Reid ( [1964] AC 40 , at pp 65, 72)), they may also vary from case to case although each be conducted before one and the same tribunal or person."

Gibbs C.J. added to this line of authority in National Companies and Securities Commission v. News Corporation (1984) 58 ALJR 308, at p 314; 52 ALR 417 , at pp 427- 428, saying:

"The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise."

(And see pp.318,321; pp 434,439-440.)

The notion of natural justice is somewhat vague because of its variable content, but it is a notion which is hallowed by time, entrenched in our jurisprudence and provocative of the definition of procedural rules governing the exercise of particular powers in the generality of cases. The reproach of vagueness was rejected by Lord Reid in Ridge v. Baldwin [1964] AC 40 , at pp 64-65:

"In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. ... It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable."

(See also per Lord Hodson at p 132). To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require. In Wiseman v. Borneman, at p 308, Lord Reid said:

"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

Lord Diplock in Bushell v. Environment Secretary [1981] AC 75 , at p 95, said:

"What is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter."

An implication that a statutory power is conditioned on observance of the principles of natural justice does not prevent the repository of the power from modifying procedure to meet the particular exigencies of the case. Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected (see The Commissioner of Police v. Tanos (1958) 98 CLR 383 , at p 396; Heatley, at pp 513-515; De Verteuil v. Knaggs [1918] AC 557 , at pp 560- 561). In such cases, a peremptory exercise of the power is valid, though the power is conditioned on the observance of the principles of natural justice. It must therefore be accepted, as one commentator points out (G. Johnson "Natural Justice and Legitimate Expectation in Australia" (1985) 15 Federal Law Review 39, at p 71), that "the contents of natural justice range from a full-blown trial into nothingness". Yet Tucker L.J. said in Russell v. Duke of Norfolk, that there is an irreducible minimum required by the principles of natural justice, namely, that "the person concerned should have a reasonable opportunity of presenting his case". If his Lordship's view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred . Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content.

There are occasions when, as Gibbs J. pointed out in Salemi (No 2) at p 421, reasons of security may make it impossible to observe the principles of natural justice in ordering deportation under s 18. We shall have to examine the present statutory context of s 18, but for the moment it suffices to note that the need for peremptory exercise of that power on occasions is no more than a factor to be borne in mind in determining whether the legislature intends to exclude entirely the application of the principles of natural justice. To determine whether the legislature's intention is to condition the exercise of a statutory power upon observance of the principles of natural justice - the threshold question - one must have regard to the text of a statute creating the power, the subject matter of the statute, the interests which exercise of the power is apt to affect and the administrative framework created by the statute within which the power is to be exercised (cf. Salemi (No 2), at p 420; F.A.I. Insurances, at pp 410,413, 417). In earlier times, the duty of the repository of a power to act judicially was regarded as the qualification of a power which attracted the application of the principles of natural justice but, after Lord Reid's speech in Ridge v. Baldwin, the distinction between quasi-judicial and administrative powers ceased to be the ground for distinguishing between powers that attract the principles of natural justice and powers that do not (see O'Reilly v. Mackman [1983] 2 AC 237 , at p 279). In Ridge v. Baldwin, Lord Reid pointed out that the duty to act judicially might be inferred from the nature of the power to be exercised when the power authorized the repository of the power to interfere with an individual's legal rights. But now that qualification has been thought to be unduly restrictive. There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests - licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials - intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights. The protected interests which do not amount to legal rights are nowadays frequently described as "legitimate expectations". This seed, which Lord Denning M.R. planted in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149, at p 170, has grown luxuriantly in the literature of administrative law.

It is one thing to acknowledge that the legislature intends the principles of natural justice to condition the exercise of statutory powers which are apt to affect interests not amounting to legal rights; it is another thing to treat "legitimate expectations" as the relevant description of the almost infinite variety of interests which are protected by the principles of natural justice. The notion of "legitimate expectations" is of uncertain connotation and, in my opinion, it may be misleading if it be treated as a criterion for determining the application or content of the principles of natural justice. In Salemi (No 2) Barwick C.J. said, at p 404:

"I am bound to say that I appreciate its literary quality better than I perceive its precise meaning and the perimeter of its application.

... I cannot attribute any other meaning in the language of a lawyer to the word 'legitimate' than a meaning which expresses the concept of entitlement or recognition by law. So understood, the expression probably adds little, if anything, to the concept of a right."

His Honour's restrictive meaning of "legitimate" was rejected in Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 where Lord Fraser of Tullybelton, delivering the opinion of the Judicial Committee, read "legitimate" as meaning "reasonable" so as to include "expectations which go beyond enforceable legal rights, provided they have some reasonable basis" (at p 636). The description "legitimate" now seems to have returned to favour in England (see C.C.S.U., at pp 401,408-409,415). Whatever epithet is used, the importance of the term is that it connotes an interest, not necessarily amounting to a legal right, which is accorded a measure of protection: see O'Reilly v. Mackman, at p 275; C.C.S.U., at pp 401,408-409. But the expectation of an individual whose interests may be affected by an exercise of a power is not relevant to the construction of the statute which creates the power. The construction to be placed on the statute cannot depend on whether an individual has an expectation that the power will be exercised in his favour or that he will be consulted and given an opportunity to put a case before the power will be exercised against him. It is not the state of mind of an individual but the interest which an exercise of power is apt to affect that is relevant to the construction of the statute. A "legitimate expectation" cannot arise unless an exercise of the power is capable of affecting, for good or ill, the interests of the person who holds that expectation. Lord Fraser of Tullybelton in C.C.S.U. (at p 401) identified the circumstances which give rise to a legitimate or reasonable expectation as either "an express promise given on behalf of a public authority or ... the existence of a regular practice which the claimant can reasonably expect to continue". When either of those circumstances occur it may be unfair not to give a hearing to the person to whom the promise was made or who has relied on the practice, but neither the promise nor the practice is relevant to the legislature's intention to condition the exercise of power by the public authority on its observance of the principles of natural justice. Those circumstances may be relevant to what is required to satisfy the principles of natural justice in particular circumstances. I leave for the moment the question whether those circumstances include not only the matters which induce an expectation but also the expectation which is induced.

In F.A.I. Insurances (at p 412) I used the term "interests" rather than "rights" or "legitimate expectations" to embrace one of the factors which tend to attract the principles of natural justice, but the "interests" were qualified:

"The aptitude of the exercise of the power to affect proprietary or financial interests or reputation furnishes a surer ground for implying that the principles of natural justice are to be applied in its exercise."

I repeated the qualification in Re Ludeke; Ex parte Customs Officers Association of Australia (1985) 59 ALJR 483, at p 490; 59 ALR 417 , at p 427).

The qualification "proprietary or financial" reflects what Dixon C.J. and Webb J. in Tanos (at p 395) described as "a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard". The reference to reputation reflects the interest protected by the law of defamation which Aickin J. in Heatley (at p 512) recognized as an interest which might properly be protected by the principles of natural justice (and see Fisher v. Keane (1878) 11 ChD 353, at pp 362-363). Although the common law has long been concerned to protect person, property and reputation, it ill accords with modern legislative intention to restrict the application of the presumption to statutory powers which affect only those kinds of interests. It cannot be said that modern legislatures intend that protection should be given only to those kinds of interests, out of the large and increasing variety of interests affected by the exercise of statutory powers. On reflection, my earlier qualification appears erroneous. The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted.

If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests (Water Conservation and Irrigation Commission (NSW) v. Browning (1947) 74 CLR 492 , at p 505). When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised. Thus in Pearlberg v. Varty (1972) 1 WLR 534 ; [1972] 2 All ER 6 , when a commissioner gave leave ex parte to raise an assessment to tax, the taxpayer challenged the decision although his legal rights were unaffected by it. The decision was held to be valid. The text of the statute, the kind of limited interest that was affected and the statutory provision allowing the taxpayer a full opportunity to challenge his liability to tax at a later stage displaced the presumption.

The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power (cf. Bates v. Lord Hailsham (1972) 1 WLR 1373 , at p 1378; [1972] 3 All ER 1019 , at p 1024). But the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi-judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected. The approach is stated by Estey J. delivering the judgment of the Supreme Court in Attorney-General of Canada v. Inuit Tapirisat of Canada (1980) 115 DLR (3d) 1, at p 19:

"The answer is not to be found in continuing the search for words that will clearly and invariably differentiate between judicial and administrative on the one hand, or administrative and legislative on the other. It may be said that the use of the fairness principle ... will obviate the need for the distinction in instances where the tribunal or agency is discharging a function with reference to something akin to a lis or where the agency may be described as an 'investigating body' ... Where, however, the executive branch has been assigned a function performable in the past by the Legislature itself and where the res or subject-matter is not an individual concern or a right unique to the petitioner or appellant, different considerations may be thought to arise."

It does not follow that the principles of natural justice require the repository of a power to give a hearing to an individual whose interests are likely to be affected by the contemplated exercise of the power in cases where the repository is not bound and does not propose to have regard to those interests in exercising the power. If the repository of the power were authorized to exercise the power in his absolute discretion without taking account of individual interests and he proposed so to exercise the power, the repository might exercise it without hearing the individuals whose interests are likely to be affected (cf. Coutts v. Commonwealth of Australia (1985) 59 ALJR 548; 59 ALR 699 ). But that would be an exceptional case.

Once individual interests not amounting to legal rights come under the protection afforded by the principles of natural justice, the application of the presumption cannot be made to depend on the character of the interest protected; rather the application of the presumption depends on factors relevant to the individual's right to insist on an appropriate procedure for considering his interests and his standing to seek judicial review if the repository does not adopt such a procedure in exercising the power. The exercise of a power affecting a legal right singles out the possessor of the right from the public at large and the possessor has standing to challenge the validity of the exercise of the power. The exercise of a power affecting interests falling short of legal rights may single out the individual whose interests are affected but he has no standing to challenge the validity of the exercise of the power unless he has a sufficient interest to give him standing in public law. Standing is an incident of a legal right, but standing is not an incident of an interest falling short of a legal right. In O'Reilly v. Mackman (at p 275) legitimate expectation was treated as giving "in public law as distinguished from private law" a "sufficient interest to challenge" an impugned decision - in that case, a disciplinary decision. I would respectfully agree that it is right to equate the interest which tends to attract the protection of the principles of natural justice with the interest which, if affected, gives standing at common law to seek a public law remedy, but I am unable to accept "legitimate expectation" as the true criterion of either. At common law an "aggrieved party" has standing to seek certiorari to challenge an administrative decision, and an "aggrieved party" is one who has a "peculiar grievance" different from any grievance felt by the public at large (Reg. v. Town of Glenelg (1968) SASR 246, at pp 251-252, and the cases there cited). The term includes "any person whose interests may be prejudicially affected by what is taking place" (per Lord Denning M.R. in Reg. v. Liverpool Corporation; Ex parte Taxi Fleet [1972] 2 QB 299 , at pp 308-309). And in cases concerned with the enforcement of public law duties at the suit of persons who had no private law right to enforce, this Court held that a plaintiff had standing if he had a special interest in the subject matter of the litigation (Australian Conservation Foundation v. The Commonwealth (1980) 149 CLR 27 ). An adverse and distinctive affection of the applicant's interests by the exercise of the power which he seeks to impugn gives rise to a peculiar grievance or special interest in the subject matter of the litigation. Such an affection of interests provides a criterion of greater validity than "legitimate expectation" which focuses on the state of the applicant's mind. Take the present case. Can it be doubted that Mr and Mrs Kioa's children have such a special interest in setting aside the order to deport their parents that they have standing to sue for that relief? Surely it would be wrong to shut them out because they did not have a legitimate - or any - expectation that their parents would be allowed to remain or that they would be heard before the orders to deport their parents were made. The criterion of legitimate expectation is meaningless if it is necessary to enquire whether the baby, Elvina, had a legitimate expectation. On the other hand, the interests which an exercise of the power to order deportation is apt to affect are interests quite distinct from the interests of the public at large. They are such interests as tend to attract the protection of the principles of natural justice.

It does not diminish the importance of the principles of natural justice to say that they are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise - "that the procedure ... shall be fair in all the circumstances", as Lord Reid said in Wiseman v. Borneman. The distinction between method and merits is sometimes elusive. The merits are for the repository of the power alone, and a repository of power is not to be held in breach of the principles of natural justice merely because he has come to a decision which, to the eyes of the court, appears unjust (cf. Chief Constable v. Evans (1982) 1 WLR 1155 , at pp 1160-1161, 1173-1175; [1982] 3 All ER 141 , at pp 143-144,155; Re Evershed and the Queen (1984) 5 DLR (4th) 340, at p 344). When the legislature reposes a power in a Minister or officer of the executive government, the repository of the power is frequently intended to exercise that power bearing in mind the interests of the public. When the validity of an exercise of power is challenged in a court, the public is not a party and the interests of the public are represented, if at all, by the party seeking to uphold the exercise of power against the party who challenges its validity. The oftentimes broad considerations which weigh, and rightly weigh, with the repository of the power when he is performing executive or administrative functions are not easily evaluated by a court engaged in deciding adversary litigation. Especially is that so when the party challenging the validity of an executive or administrative decision or action is an individual whose interests are in conflict with the interests of an indeterminate number of other individuals who are not parties to the litigation but whose interests are to some extent affected by the decision or action. In the present case, the Minister's delegate placed some weight on the policy against "queue-jumping", and it would not be surprising if a court, were it to examine the merits of the decision in litigation to challenge the validity of a deportation order, might give that consideration less weight than was given it by the Minister's delegate. It is hard to place the unseen suffering of a large and innominate group against the evident suffering of a present litigant and the difficulty is enhanced by the court's lack of familiarity with the considerations which the policy reflects. Unless the courts rigidly limit their examination of the observance of the principles of natural justice to the procedures adopted by the repository of the power, the courts trespass into a field of decision-making for which their own procedures are ill-suited (cf. per Lord Diplock in Bushell v. Environment Secretary, at p 95). But as the courts must rigidly limit their examination to procedures, the policy element involved in the exercise of a statutory power which is apt to affect individual interests in the distinctive way which attracts the presumption is not necessarily a cogent reason for excluding the presumption.

In the light of these general principles, I turn to the question whether s 18 in the form and context in which it stood when the deportation orders were made confers a power which is conditioned on the observance of the principles of natural justice. That is a question of statutory construction. Accepting the finding of the statutory majority in Salemi (No 2) and of the majority in Ex parte Ratu as to the construction of s 18 in 1977, new statutory indicia must appear if the conclusion then reached no longer states the true legislative intention. The statutory majority in Salemi (No 2) and Mason J. in Ex parte Ratu identified two chief indicia of the legislature's intention to exclude the necessity to observe principles of natural justice.

The first indicium was the prescribing of procedures to protect the interests of aliens under other sections of the Act (ss 12,13,14) and the absence of any prescribed procedures to protect the interests of prohibited immigrants under s 18. The disparity between the provisions relating to aliens and prohibited immigrants was a factor tending to show that the Minister in exercising his power under s 18 was not bound to have regard to the interests of a prohibited immigrant whose deportation he proposed to order. Indeed, Barwick C.J. denied (though he was alone in saying so) that the Minister had no discretion to refuse to deport a prohibited immigrant. The disparity between these provisions is unaltered, and it must be counted as a factor tending to displace any presumption that the power conferred under s 18 is conditioned on the observance of the principles of natural justice. A further indication of the Minister's freedom to disregard individual interests is his unqualified power to cancel a temporary entry permit at any time (s 7(1)).

The second indicium was the nature and purpose of the power to order deportation under s 18. It is a power conferred for the protection of the existing Australian population which may have to be exercised peremptorily from time to time against persons who might attempt to evade apprehension. The insertion of ss 6A and 27(2A), however, makes it manifest that the question to be decided under s 18 is not simply whether the prohibited immigrant should be deported but whether he should be granted an entry permit and perhaps a permanent entry permit so that he ceases to be a prohibited immigrant with all the disabilities which that status entails. The complex of powers contained in ss 6,6A,7 and 18 are directed to the status and disposition of the immigrant. The affection of the immigrant's interests is of the very nature of those powers and the repository must have regard to those interests in exercising them. And if the legislature intended the Minister or his delegate to have regard to the interests of the prohibited immigrant, the legislature may be presumed to intend that the prohibited immigrant should be heard before those powers are exercised.

Moreover, a person who becomes a prohibited immigrant upon the expiration of a temporary entry permit is entitled to escape conviction as for an offence under s 27(1)(ab) if a further entry permit comes into force (s 27(2A)). Neither the offence nor the means of exculpation were in the Act as it stood in 1977. Again, the power to relieve from conviction for a criminal offence requires the interests of the person otherwise liable to conviction to be taken into account. It follows that the nature of the power to be exercised is now somewhat different from what it was in 1977. As the complex of powers conferred by ss 6, 6A, 7 and 18 taken in conjunction with s 27(2A), now require the interests of the prohibited immigrant and his family to be taken into account, there is a substantial ground of distinction between the Act as it stood when it was construed in Salemi (No 2) and Ex parte Ratu and the Act as it stood when the deportation orders in this case were made. The significance of the Minister's power to cancel a temporary entry permit is less in the 1983 context than it was in the Act as it stood in 1977. In my opinion, the Act as it stood at the time when the deportation orders were made did not displace the presumption that Parliament intended that an exercise of the complex of powers conferred by ss 6, 6A, 7 and 18 should be conditioned on observance of the principles of natural justice.

The enactment of the the ADJR Act is, in my opinion, an entirely neutral factor. Section 5(1)(a) does not impose a condition on the exercise of every statutory power although the Parliament, in creating some of those powers, intended that no condition should govern their exercise. The chief purpose of the ADJR Act is to confer on the Federal Court a jurisdiction judicially to review administrative action taken under laws of the Commonwealth and there is no reason to construe in a novel manner provisions which state in familiar terms the well-known grounds of judicial review. I do not say that the grounds of judicial review remain wholly unchanged by the Act, but the ground stated in s 5(1)(a) does not impose procedural qualifications on powers conferred by other specific enactments. I respectfully agree with the view expressed by Bowen C.J. and Franki J. in Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 ALR 341 , at p 347:

"We consider s 5(1)(a) means that relief may be sought where rules of natural justice are applicable in the exercise of a power and effect has not been given to them."

Nor, in my opinion, ought s 13 of the ADJR Act make any material difference. Prior to the enactment of s 13 it was difficult, if not impossible, for a party who sought to challenge the validity of many administrative decisions to ascertain the reasons of the decision-maker. The absence of reasons, often irremediable by discovery, immured many administrative decisions from judicial review. Section 13 provides the means by which the reasons for making an administrative decision can be ascertained, but it does not require the adoption of a different procedure from the procedure which would have to be followed if s 13 of the ADJR Act had not been enacted. Nevertheless, some of the judgments in Salemi (No 2) and Ex parte Ratu pointed to the absence of a requirement to state reasons as an indicium that observance of the principles of natural justice did not govern the exercise of the power conferred by s 18 of the Act (see Salemi (No 2), at pp 421,443-444; Ex parte Ratu, at pp 478,479). Although I would not have regarded the absence of a requirement to state reasons as such an indicium, the introduction of s 13 of the ADJR Act establishes a point of distinction between those cases and the present case and deprives those cases of their earlier authority.

Although the amendments since 1977 are sufficient, in my opinion, to warrant the conclusion that the exercise of the powers conferred by ss 6,6A,7 and 18 are conditioned on the observance of the principles of natural justice, it does not follow that the Minister or his delegate is bound in every case to give the prohibited immigrant a hearing before ordering his deportation. When the purpose for which the power is conferred - control of the membership of the Australian people and their visitors - would be frustrated by giving a hearing, the principles of natural justice do not require that a hearing be given. But there is no reason to think that giving a hearing to Mr Kioa would impair the Minister's control over the disposition of the Kioa family. Mr and Mrs Kioa and Elitisi had entered Australia lawfully, Elvina had been born here and is an Australian citizen. Mr Kioa had applied for and may have qualified for the grant of an entry permit under s 6A. The family was living here openly. They had not sought to evade officers of the department. It is clear that the purpose for which the power was conferred on the Minister was not frustrated by the hearing which was given to Mr Kioa and would not have been frustrated by giving him any further hearing.

The final and most difficult question on this aspect of the case is whether there has been a failure to observe what the principles of natural justice required in the circumstances. Once the threshold question is resolved and it is established that the exercise of a power is conditioned on the observance of the principles of natural justice, the content of the principles to be observed is determined in the light of the particular circumstances. At least the notion of "legitimate expectation" connotes a circumstance of the case in hand, so the use of that notion to determine the content of the principles of natural justice is not open to the same reproach as its use in construing the statute. If the particular circumstances of the case show that the repository of a power has made an express promise to a person or has adopted an administrative practice which that person can reasonably expect to continue and has thereby induced the person to expect that the power will be exercised in his favour or that it will not be exercised against him without a hearing, it may be unfair to exercise the power against the person without giving him a hearing. But the unfairness consists in a departure from the course which the repository of the power expressly or impliedly promised to follow without giving the person whose interests are affected an opportunity to be heard. The unfairness is not the disappointment of the expectation which the promise induced. The relevant circumstance in Salemi (No 2) was surely the announcement of the amnesty for prohibited immigrants, not the expectation which it induced in Mr Salemi. Perhaps legitimate expectation in this context means an expectation imputed to the person whose interests are affected. If that be so, it is best to focus on what warrants the imputation rather than on a fictional mental state.

I confess I am unable to find in the notion of legitimate expectation either a criterion or an indication to assist in determining what is procedurally reasonable and fair in particular circumstances. If "legitimate expectation" is treated as a criterion or indication, the notion may divert enquiry from what is procedurally reasonable and fair into an examination of the merits of an applicant's case as it is presented in court. The facts which are known to an applicant and which he proves in evidence may show that he had an "expectation" and that it was "legitimate" or "reasonable", but those facts may have been unknown to the repository of the power. What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly. As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair. A different approach is called for when the question is whether a jurisdictional fact existed at the relevant time: jurisdiction may depend not on the circumstances perceived by the repository of the power but on the objective existence of the fact at the relevant time. In my opinion, none of the questions arising in this case is illuminated much less resolved by reference to the notion of legitimate expectation.

In this case, the letter sent by the Director of the Legal Aid Commission on Mr Kioa's behalf was considered by the Minister's delegate. He did not conduct an oral hearing, but a repository of a power who is bound to hear an individual before exercising a power is not necessarily bound to hear him orally (Local Government Board v. Arlidge [1915] AC 120 , at pp 132-133, 137-138; Jeffs v. New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 , at pp 566-567,568-569). The repository must adopt a fair procedure having regard to the matters he is bound to take into account (Attorney-General v. Ryan [1980] AC 718 , at p 727) and, I would add, the matters he proposes to take into account. Subject to one qualification the Minister's delegate gave Mr Kioa the fair hearing the delegate was bound to give him. In the circumstances, as Mr Kioa represented the interests of Mrs Kioa and the children as well as himself, it was not necessary to give the other members of the family a separate hearing.

However, there was one allegation - that contained in par.22 of the department's submission - which was damaging to the prospects of Mr and Mrs Kioa being allowed to stay in Australia. That information was never put to Mr and Mrs Kioa for their comments. Evidently the delegate did not rely on this allegation in making his decision, for his statement of the reasons for his decision provided under s 13 of the ADJR Act did not refer to it. That statement should be taken to be a true and complete statement of the delegate's reasons unless there is evidence to the contrary (see per Stephen J. in Ex parte Ratu, at p 474). Although it is right to conclude that the allegation in par.22 formed no part of the delegate's reasons, it was contained in the material before him which he proposed to consider in coming to a decision.

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise (Kanda v. Government of Malaya [1962] AC 322 , at p 337; Ridge v. Baldwin, per Lord Morris at pp 113-114; De Verteuil v. Knaggs, at pp 560,561). The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary, at p 97:

"To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair."

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par.22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice. The result is that the condition governing the power to make the deportation orders was not satisfied and the orders must be set aside. If the Minister chooses to do so, a fresh decision may be made. There is nothing in these reasons which affects the merits of the decision made or of any decision which may be made in the future.

As the matter must be reconsidered by the Minister or his delegate, I should refer to two subsidiary matters raised by the appellants. The first matter is a submission that the delegate was bound to consider the effect of the deportation orders on Elvina, an Australian citizen, and to give her a hearing before exercising the power to deport her parents. For reasons I have earlier stated, I would agree with that submission. But, in my view, the delegate did consider the effect of the deportation orders on Elvina, assuming (and the assumption was reasonable) that she would accompany her parents. There was no need to give her a special hearing in addition to receiving the representations made on behalf of Mr Kioa which contained representations on behalf of the Kioa family. It would over-judicialize administration to regard each matter for decision as giving rise to as many lites as there are individuals whose interests are likely to be affected. Sometimes each individual should be given a hearing, sometimes a representative, sometimes a group. There is no reason to think that Elvina's interests were not reasonably and fairly protected by the procedure adopted by the delegate.

The second matter relates to the delegate's alleged failure to take account of certain international conventions which are scheduled to the Human Rights Commission Act 1981 (Cth), the preamble to which states that "it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with" the scheduled conventions. The Human Rights Commission Act does not provide that the repositories of statutory power are bound to take the conventions into account; the preamble does no more than state what, apart from the preamble, the repositories of power were generally entitled to do, that is, to take the conventions into account. The exercise of a statutory power is not liable to be set aside merely because the repository of the power does not take into account a matter which he was entitled, but not bound, to take into account: see Sean Investments v. MacKellar (1981) 38 ALR 363 , at p 375; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at p 225. Without suggesting that there was any relevant provision in the scheduled conventions which the delegate might have taken into account, there is no legal foundation for this basis of attack on the orders made.

I would allow the appeal, set aside the judgment of the Federal Court and in lieu thereof order that the deportation orders against Mr and Mrs Kioa made by the delegate of the Minister on 6 October 1983 be set aside.