The High Court in the case of Nathanson v Minister for Home Affairs decided that providing a ‘hearing’ could have made a material difference – that meant that failure to provide the hearing was a breach of procedural fairness.
Nathanson v Minister for Home Affairs is a 2022 High Court decision regarding material differences (summarised by the High Court here). It shows that it can be tricky to work out whether there has been real unfairness in the sense that a breach of natural justice or procedural fairness has occurred. The Full Federal Court had decided that no real unfairness occurred. But the High Court took the opposite view. It found that the breach was material.
The Court used the word ‘material’ in order to work out whether the breach of natural justice mattered. Was the denial of procedural fairness ‘material’? Did it remove a chance of a different outcome? If it was material; if it did remove such a chance, then the decision was unlawful.
Note that the appellant did not need to prove that giving a ‘hearing’ would have produced a different outcome. They only had to prove that giving a ‘hearing’ could have produced a different outcome.
What was the unfair decision?
The decision in question was a decision of a Tribunal to refuse to revoke a mandatory visa cancellation. The Tribunal misled the appellant, because the Tribunal did not properly explain the significance of some important matters. These were matters that the Tribunal had to consider as a result of a Ministerial Direction (which had changed).
The Ministerial Direction required the decision-maker (the Tribunal) to consider the ‘principle that crimes of a violent nature against women or children are viewed very seriously…’. After considering this principle, the Tribunal refused to revoke the visa cancellation.
The appellant did not know about the new test incorporating the words ‘very seriously’. These words meant that the significance of certain crimes had changed in the Ministerial Direction.
What could the appellant have done?
Given the opportunity, the appellant could have produced:
‘additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence (which) could realistically have affected the Tribunal’s evaluative fact finding concerning the nature and seriousness of the appellant’s conduct and, ultimately, the outcome of the Tribunal’s review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair… That evidence and those submissions may have provided more detail about the domestic violence incidents, placing them in the relevant context or providing relevant detail.’ (Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80; at para 39).
How did the Court analyse the phrase ‘material difference’
The High Court produced a Court summary. The Court stated that ‘in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, reasonable conjecture from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different’. The Court’s judgment states: ‘Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome’ (para [2]).
Elsewhere, the High Court majority said: ‘There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding… (there must be) an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party.’ (at para [33]).
In this case, the appellant needed the opportunity to present evidence or submissions regarding crimes he had committed. He might have been able to change the Tribunal’s mind about their significance.
The Court found that a breach of procedural fairness can be material even if the appellant does not explain what they might have said. They do not have to show what evidence or submissions they might have presented. The majority found: ‘Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity’ (at para [33]).
What do you have to prove?
In the High Court’s summary, the Court wrote:
‘a majority of the Court held that in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, reasonable conjecture from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different. In the appellant’s case, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the outcome of the Tribunal’s review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair.’
This is an important point. An appellant does not have to prove that a hearing would have produced a different outcome. That’s good, because proving such a thing is perhaps impossible in most if not all cases.
What is the ‘material difference’ moral of the story?
For decision-makers, there is a moral to the story; a message from this case. Do not assume that a hearing will make no difference. You never know what a person might say in response to an adverse conclusion you propose to draw. Also, be aware that the extent of the adverse conclusion might be important.
If you decide that somebody’s conduct was ‘really bad’, the question is, ‘how bad’? Be aware that they might want to persuade you that their conduct was ‘not so bad after all’.
Decision-makers should ask before they finalise things: could my view be challenged because of something I don’t know about? You will not know the answer until you give procedural fairness.