Australia: Administrative decision-making, confidential information, and procedural fairness

Key Points:

When making a decision that affects a person's rights or interests, adverse information, even if it is of a confidential or personal nature, may need to be provided to the person affected by the decision.

A recent judgment of the Federal Court reminds administrative decision-makers that where their exercise of power is likely to adversely affect the interests of another person, the decision-maker may have to give that person an opportunity to comment on adverse information that the decision-maker proposes to rely on in making his/her decision, even if the information was provided by a third party on a confidential basis.

In Minister for Immigration and Citizenship v Maman [2012] FCAFC 13, the Full Federal Court found that the decision of the Migration Review Tribunal was affected by jurisdictional error because Mr Maman had not been afforded procedural fairness by being given the opportunity to consider and comment on a confidential letter that his former partner had provided to the Department about their relationship.

The application and the first decision

As a result of the breakdown of his relationship with his Australian citizen partner, Mr Maman sought to rely on provisions in the Migration Regulations 1994 that required the Minister's delegate to be satisfied that Mr Maman had suffered family violence before granting Mr Maman a permanent visa to remain in Australia.

The Regulations required the Minister's delegate to seek the opinion of an independent expert, in this case a Centrelink social worker, on whether Mr Maman had suffered family violence. They also required the Minister's delegate to take the independent expert's opinion as correct.

The Centrelink social worker considered Mr Maman had not suffered relevant family violence, and his visa application was refused.

The Migration Review Tribunal decision

Mr Maman sought review of the decision by the Migration Review Tribunal, which decided to obtain a further opinion from a second independent expert.

The second expert came to the same conclusion as the first. The Tribunalprovided a copy of the second expert's opinion to Mr Maman for comment and, having received it, proceeded to affirm the decision to refuse his visa application.

Mr Maman then sought judicial review of the Tribunal's visa refusal decision by the Federal Magistrates Court.

Federal Magistrates Court finds that independent expert breached rules of procedural fairness

In her report, the second expert noted that she had "relied upon all information referred from MRT to Centrelink... outlined in section B16 of this report". A précis of a letter that Mr Maman's former partner had written to the Department on the breakdown of their relationship was included in that section of the report.

Mr Maman argued that the second expert had not provided the letter to him for comment before finalising her opinion.

Federal Magistrate Raphael found that the second expert was bound by the common law principles of procedural fairness and that the second expert had failed to provide Mr Maman with procedural fairness by not drawing the letter to his attention and inviting him to comment upon it.

The Federal Magistrates Court quashed the MRT's decision and directed it to reconsider Mr Maman's application.

The Minister appealed to the Federal Court.

Federal Court – confidentiality may not be an excuse for not complying with procedural fairness

One ground of appeal was that the Federal Magistrate's Court had erred by not considering that the content of the obligation to afford procedural fairness may be reduced to nothing where the impugned information has been given to the repository of power in confidence, or where the repository of power would breach privacy obligations if it disclosed the information.

In their joint judgment, Justices Flick and Foster reviewed the general principles of procedural fairness applying to the issues in this matter which include:

  • procedural fairness generally requires that 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/her interests which is credible, relevant and significant to the decision to be made and which is in the possession of the decision-maker;
  • there are limitations on the duty to disclose information, for example, where questions of national security collide with the principles of procedural fairness, or where the information otherwise required to be disclosed is confidential;
  • the mere fact that a document may contain confidential information does not dictate that it not be disclosed, either in whole or in part. Even where there may be substantial reasons in favour of preserving the confidentiality of information, the rules of procedural fairness may require disclosure of adverse information;
  • procedural fairness may not require a decision-maker to disclose the precise details of all matters upon which he/she relies as it may be sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention or that the applicant is on notice of its "essential features";
  • where the confidentiality arises by reason of a personal relationship between two persons, the very fact of the relationship may dictate the disclosure of information which is otherwise properly characterised as truly "personal" or "confidential". Information which is intensely "personal" may have to be disclosed to the person concerned if the person is to be able to properly and adequately respond to the complaints or allegations of another;
  • the more personal the information that is communicated to a decision-maker by one party, the more necessary it may be to disclose the entirety of the communication – communication of the gist of the information, when stripped of the context or the manner or the terms in which the purely personal information is communicated may deny the affected person a proper opportunity to respond; and
  • if information is "credible, relevant and significant", a decision-maker's assertion that he has placed such information to one side or given it no weight may not comply with the requirement of procedural fairness.

Justices Flick and Foster accepted that the information in the letter was not information which could properly be characterised as either irrelevant or insignificant to the opinion that the second expert was required to reach. They also accepted that the letter, at least when it was written, attracted an obligation to keep it confidential when its terms and purpose was considered.

Justices Flick and Foster found that the common law rules of procedural fairness required that at least the gist, and more probably the entirety, of the letter should have been disclosed to Mr Maman before the second expert formed her opinion. The consequence of this breach of the rules of procedural fairness was that the second expert's "opinion" was not an opinion made under the Regulations, thus the Tribunal's decision, which relied on the second expert's "opinion", was vitiated by jurisdictional error.

Justice Katzmann indicated in her separate judgment that she generally agreed with Justices Flick and Foster's reasons with two qualifications, one of which is relevant to the procedural fairness issue. Justice Katzmann stated that she would not be as emphatic about the duty to disclose "purely personal" information. This leaves open whether the duty arises where disclosure would pose an imminent threat to the safety of a source of information.

In a nutshell, what does this case tell us?

The Federal Court's decision highlights the importance that courts place on affected persons being able to consider and respond to adverse material that is before an administrative decision-maker.

The Court's overview of the general principles of procedural fairness as they relate to confidential or personal information serves as a good reminder to administrative decision-makers that in making a decision that affects a person's rights or interests, adverse information, even if it is of a confidential or personal nature, may need to be provided to the person affected by the decision for comment in order to ensure that the decision that will be made is procedurally fair.

You might also be interested in ...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.