Elderly Citizens Homes of SA Inc v WorkCover Corpn No. Scgrg-99-267 Judgment No. S133

ELDERLY CITIZENS HOMES OF SA INCORPORATED v
WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[1999] SASC 133

Civil

Debelle J

Elderly Citizens Homes of SA Incorporated (“ECH”) employs more than 200 people. It is, therefore, entitled to apply to the WorkCover Corporation of South Australia (“the Corporation”) to become an exempt employer for the purposes of the Workers Rehabilitation and Compensation Act 1986 (“the Act”). The application is determined by the Corporation. The procedure for applications is prescribed in ss60 and 62 of the Act.
On 8 July 1998 ECH applied for registration as an exempt employer. Its application has yet to be determined by the Corporation. ECH says that the Corporation is denying it procedural fairness in that it will not disclose to it a report which recommends refusal of its application and it will not permit it to make representations to the Corporation in respect of that report. ECH, therefore, seeks orders in the nature of a declaration that it is entitled to be heard in support of its application and that the Corporation is obliged to make available to it a copy of the report in sufficient time to permit ECH a reasonable opportunity to examine the report and make representations in response to it. It seeks other orders by way of ancillary relief.
The Corporation acknowledges that the rules of procedural fairness apply in respect of applications under s60 for registration as an exempt employer. The concession is correctly made. The grant of an application for registration as an exempt employer has financial advantages for the employer. It also affects the status of the employer under the Act. There is a duty at common law to act fairly, in the sense of according procedural fairness, in the making of decisions which affect rights, interests and legitimate expectations unless there is a clear manifestation of a statutory intention to the contrary: Kioa v West (1985) 159 CLR 550 at 584; Annetts v McCann (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576 and 577. The intention to exclude the rules of procedural fairness is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations: Haoucher v Minister for Immigration (1990) 169 CLR 648 at 680. The Act does not oust the rules of procedural fairness in respect of applications under s60 for registration as an exempt employer. The rules of procedural fairness, therefore, apply in respect of such applications.
The Corporation acknowledges also that ECH is entitled to make written representations to the Committee until the time it makes its decision. However, it says that ECH is not entitled to make oral submissions to the Committee. Mr Hayes QC, who appeared for ECH, said that, at this stage, ECH contended only for the right to make its representations in writing. The question whether ECH would seek to make oral submissions would, he said, depend on other factors such as the content of the report it seeks to inspect. There is, therefore, no present dispute as to the nature of the right to be heard. However, the Corporation disputes the claim by ECH to inspect the report. In the result that is at present the only issue between the parties.

The Statutory Scheme

Section 60 prescribes who may apply to become an exempt employer, prescribes the conditions which may be imposed on the grant of registration as an exempt employer, and provides for revocation of registration as an exempt employer. Section 60(3)(b) prescribes the matters on which the Corporation is to be satisfied if it is to register an applicant as an exempt employer. They are:
“(i)... that the employer or the employers constituting the group have reached a standard that, in the opinion of the Corporation, must be achieved before conferral of exempt status can be considered; and
(ii)... that in all the circumstances it is appropriate to do so”

Section 60(6) provides that, when determining whether to grant, renew, revoke or reduce the period of registration as an exempt employer, the Corporation may have regard to such matters as it thinks relevant and will have regard to the following matters:

“(a).. whether the employer or group is, and is likely to continue to be, able to meet its liabilities;
(b).... the resources that the employer or group has for the purpose of administering claims for compensation;
(c).... the incidence and severity of compensable disabilities arising from employment by the employer or employers;
(d).... the effect, or likely effect, of the working conditions under which workers are employed by the employer, or any of the employers, on the health and safety of those workers;
(e).... the record of the employer or employers in relation to the rehabilitation of disabled workers;
(f).... the record of the employer or employers in providing suitable employment to workers who suffer compensable disabilities;
(g).... the views of any industrial association that has, in the opinion the Corporation, a proper interest in the matter.”

The Application Procedure

The Corporation has published a document providing information for employers who wish to apply to become exempt employers. It is entitled “Information for Prospective Self Insured Employers”. As the document explains, “self insured employers” are otherwise known as exempt employers. The document includes information as to the criteria which must be satisfied to become an exempt employer, an explanation of s60 of the Act, and a description of the procedure for an application. Each application must be accompanied by a fee of $5,000 plus $5 for each worker to a maximum of $20,000. The fee paid by ECH was $7,550. The fee is non-refundable.
The document includes a section describing the procedure for making applications. It is headed “Application Process”. It includes the following paragraph, which is headed “Performance Assessment”:
“6..... WorkCover will proceed with an assessment against the standards. By this time the applicant will have been provided with a copy of the standards. The applicant will be expected to comply with level 3 before the application can proceed. This can take upwards of 12 months for an applicant to achieve. So long as WorkCover is satisfied that the applicant has appropriate commitment at highest management level, the time taken to achieve the standard will be irrelevant. If, however, WorkCover forms the view that undue delays indicate insufficient management commitment the application will lapse and the process must be commenced again.”

Paragraphs 14 and 15 of the document provide:

“14... All assessments against the performance standards must be completed at least six months before the grant of self insurance is to become effective and all other actions required under this procedure which do not have a specific date later than that must also be completed by that time.
15.The proposal will be put before a subcommittee of the WorkCover Board in February or March and the Board in March or April. Upon acceptance by the Board the applicant will be formally notified of its acceptance as a self insurer with effect from 1 July in that year. This will still be subject to receipt of a satisfactory guarantee and catastrophe insurance as outlined in 9, 10 & 11 above.”

The assessment described in para 6 requires a little more explanation. In order to satisfy the performance standards, the applicant must secure a score of 12 points. Performance standards exist for six designated aspects of an applicant’s operations. They are Management Commitment, Policy, Consultation, Hazard Identification, Training and Administration. Three points must be obtained for Training and two for Hazard Identification. A score of zero in any topic invalidates the application.

Applications are determined by the Workers Compensation Committee, which has been delegated that task by the Corporation pursuant to s17 of the WorkCover Corporation Act 1994.

The Application by ECH

On 8 July 1998 ECH lodged its application. The application was handled by two officers of ECH, Messrs J Windsor and W R Wood. The Corporation appointed two of its officers to assess the application. They were Messrs D R Taylor and N McVicar.
On 19 August 1998 Taylor met Windsor and Wood and explained the process involved, the preliminary steps to be undertaken and the performance standards which ECH would have to achieve if it was to succeed with its application. In a letter dated 24 August 1998, the Corporation provided further information concerning the application process. The letter included the following information concerning the need for ECH to comply with performance standards:
“Please note that the achievement against the standards must be evidenced by 31 December 1998 in order for the Board to grant self insurer status from 1 July 1999”.

The deadline of 31 December 1998 was later extended by the Corporation. On 7 October 1998 Taylor attended a meeting of the Central Health and Safety Committee of ECH (“the Central Health Committee”). The Central Health Committee of ECH is its occupational health and safety committee. Taylor explained to the meeting the process of self audit and the means of satisfying performance standards. The performance standards address injury prevention, rehabilitation of injured workers, and claims management.

Between 2 November 1998 and 6 November 1998 Taylor conducted what he called a “desk top audit” at the premises of ECH concerning a report of initial compliance prepared by ECH. In his view ECH would not be able to comply with Level 3 Training Standard and he expressed that view to Wood. On 6 November 1998 Taylor informed Wood in outline of his proposed recommendation which included the view that ECH would not comply with Level 3 of the Training Standard. On 25 November 1998 Taylor provided ECH with a copy of its draft report and invited comment from ECH. On 26 November 1998 Taylor completed his report and ECH received a copy the same day. It stated Taylor’s recommendations in respect of each of the six categories in the performance standards. In Taylor’s assessment, ECH achieved a score of 2 for training and an overall score of 11. It, therefore, failed to reach both the required score of 3 for Training and the overall score of 12. The report concluded with the following recommendation headed “Recommendation for Consideration”:
“Despite the fact that the current recommendation has resulted in an overall score of Level Two, it is considered appropriate to submit the following strategy for consideration.
Subject to the approval of the Workers Compensation Standing Committee and ultimately the WorkCover Board, it is recommended that:
·....... The recommendations contained within this report be consolidated into an action plan by the organisation to further their application for self insurance.
·The resultant plan be adopted and endorsed by the central OHS committee of ECH Inc.
·....... A formal acknowledgement by the Executive Officer, Mr Charles Young in terms of management commitment and resourcing be sought by the organisation and subsequently be received by the WorkCover Corporation.
·The achievements in terms of the agreed action plan be reviewed in May 1999 to establish Level Three compliance with the Prevention Standards for Exempt Employers.
·....... Interim contact be maintained in terms of progress against the agreed action plan/s and strategies.”

By letter dated 14 January 1999, ECH advised that the report had been considered and the recommendations in it would be consolidated into an action plan to be reviewed before May 1999 to establish Level 3 compliance. The letter sought a timetable for assessment of the performance of ECH. The next day, the Corporation responded with a letter advising the times by which additional information was to be supplied. The letter is important. It reads:
“Prevention Assessment
Further to our discussion on 13 January 1999 I wish to advise that the recommendations contained within the report of 28 November 1998 are now subject to timeframes for completion.
The decision to attach timeframes has been based on the following:
·....... The recommendations within the report are qualified in terms of requiring additional evidence and action on the part of the organisation before a final recommendation can be made.
·The associated process needs to be formalised to a greater degree before the current report goes before the Workers Compensation Committee.
·....... The report is due to go before the Committee on 11 March 1999.

The recommendations are:
·....... A formal acknowledgement and acceptance of the report’s recommendations by the organisation’s Executive Officer, Mr Charles Young be received by the WorkCover Corporation.

Timeframe : No later than 22 January 1999.
·....... The recommendations contained within the report of 26 November 1998, be consolidated into an action plan by the organisation to further the application for self insurance.

Timeframe : No later than 12 February 1999.
·....... The resultant action plan be adopted and endorsed by the Central OHS committee of ECH Inc. I understand the committee is to meet on 24 February 1999.

Timeframe : No later than 5 March 1999.
·....... Interim contact be maintained in terms of progress against the agreed action plan and strategies. ECH to provide a progress report to the Corporation on meeting the requirements of the agreed action plan.

Timeframe : No later than 31 March 1999.
·....... the achievements in terms of the agreed action plan be reviewed in May 1999 to establish Level Three compliance with the Prevention Performance Standards for Exempt Employers.

Timeframe : No later than 3 May 1999.

In closing, I advise that any grant of self insurance will be subject to meeting these requirements within the specified timeframes. Failure to complete all actions within the specified timeframes will result in the failure of ECH’s application for self insurance.

I am available for further discussion and can be contacted on ph 8238 5942, if necessary.”

The effect of the letter was to extend the time by which ECH should provide information to the Corporation and by which it should satisfy the performance standards. The need for these time limits stems from the fact that applications for the status of exempt employers had to be resolved and the applicants’ compliance with action plans assessed before the commencement of each financial year.

On 12 February 1999 ECH provided the Corporation with a revised action plan. Taylor concluded that it did not satisfy the requirements of his report and, on 15 February 1999, he rang Wood and informed him of his views. They agreed to meet to discuss his requirements. The meeting was held on 16 February. It was attended by Taylor and by Wood and Windsor for ECH. Wood and Windsor agreed that ECH would supply the details requested by Taylor “in about a week’s time”.
The effect of that meeting was that Taylor had granted an indulgence to ECH in the form of an extension of the time limit of 12 February 1999 for lodgment of the revised action plan.
On 22 February 1999 Wood met Taylor. In the course of that meeting, Taylor told Windsor that ECH had not yet provided an action plan he could recommend to the Committee. On the same day, Taylor telephoned Mr Blake, the Assistant to the Executive Director of ECH, and told him that he did not believe that ECH had complied with the recommendation in his report dated 26 November 1998.
On 25 February 1999 Taylor telephoned Wood and told him that he would be recommending to the Committee that it refuse the application by ECH. Wood asked for a meeting with the Corporation.
The meeting requested by Wood was held on 2 March 1999 at the office of ECH. The Corporation was represented by Taylor and Ms Tramsak, a program manager employed by the Corporation. ECH was represented by Messrs Blake, Windsor and Wood. Ms Tramsak informed ECH that a report had been prepared recommending that its application be refused because it did not meet the required Level 3 in performance standards. She added that it was too late to have the recommendations changed as the deadline for submissions to the Committee had passed. Taylor informed ECH that the action plan presented by ECH did not comply with his recommendations as to Training. ECH disputed the fact that it had not satisfied the prescribed standard. The same day and at the request of ECH, Ms Tramsak sent a letter confirming the information given to ECH. The letter was in these terms:
“I refer to your request for written information regarding the outcome of our meeting today.
The purpose of the meeting was to clarify Elderly Citizens Homes of SA’s (ECH) performance against the Self Insurance Standards.
I would like to clarify that a requirement for attaining self insurance is that the organisation achieves an overall score of level 3 against the exempt employer performance standards.
Dean Taylor’s prevention report dated the 26 November 1998 stated a recommended score of level 2. Further, a request for an action plan and additional time frames were provided by the Corporation to allow ECH the opportunity to demonstrate level three compliance.
The action plan provided by ECH failed to address the recommendations in Dean Taylor’s prevention report and specifically the requirements against the training component. No further evidence was provided to demonstrate that the training systems had reached level three.
The Corporation has concluded that ECH has failed to meet level three against the performance standards. This information will be included in our report to the Workers Compensation Committee scheduled to meet on 11 March 1999.”
ECH responded by letter the following day. The letter expressed its concern with what had occurred. It asserted that it had complied with the requirement to submit its revised action plan by 12 February 1999 and that the plan addressed the recommendations made by Taylor in his report. It said that its action plan was being considered by its Central Health Committee that day and would be delivered to the Corporation on 5 March as required in the letter of 15 January. It disagreed with the conclusion that it had failed to meet Level 3 in Prevention and asserted that it had been denied procedural fairness and natural justice in that the time specified in the Corporation’s letter of 15 January 1999 for submission of its action plan had not passed. It asked for reconsideration of the decision that ECH had failed to meet Level 3. It also sought withdrawal of the report from the meeting on 11 March 1999 or, alternatively, that it be provided with a copy of the report and an opportunity to make representations concerning the report.
On 4 March 1999 the solicitors for the Corporation wrote to ECH stating, among other things, that the report would not be withdrawn. The letter reiterated the view expressed in the Corporation’s letter of 2 March that its assessment whether ECH had achieved the performance standards would be presented to the meeting of the Committee on 11 March 1999. It advised that the Committee might decide the matter on 11 March but, until the Committee makes its decision, the ECH application remained current. The letter also set out the Corporation’s view of the history of the matter and denied any breach of the rules of procedural fairness.
On 5 March 1999 ECH delivered to the Corporation an action plan endorsed by its Central Health Committee. It was a revised version of the action plan submitted on 12 February. It was sent with a letter dated 5 March 1999 which asserted that ECH had addressed all of the issues in Taylor’s report dated 26 November 1998. The letter asked that that information be included in the report to the Committee for its meeting on 11 March. On 8 March 1999 Taylor rang Wood and said he would comply with the request.

By letter dated 8 March 1999 ECH asked the Corporation to confirm that the recommendation made to the Committee did in fact recommend that its application be refused. The letter also asked for a copy of the report and for an opportunity to make representations to the Committee in relation to the report. The Corporation responded by letter dated 9 March 1999 and written by Ms Tamsak.
“I refer to your correspondence dated 8 March 1999 regarding your application for exempt employer status.
I can confirm that further information regarding the submission of the revised action plan will be provided to the Workers Compensation Committee on 11 March 1999. It should be noted, however, that in the Corporation’s view ECH have not achieved level three against the performance standards.
The report to the committee is Board in confidence and hance (sic) cannot be provided to ECH without the Committee’s approval.
As outlined in previous correspondence dated 4 March 1999, until a decision is made by the Committee, the ECH application remains current. If ECH are dissatisfied with the decision made by the Committee then ECH will have rights of appeal under section 62A of the Act.”

It is not clear from this letter whether the revised action plan delivered by ECH on 5 March would be presented to the Committee or whether the Corporation has concluded that it too does not satisfy the performance standards. No reason has been advanced why the action plan delivered on 5 March should not be considered by the Committee. Indeed, it would be a denial of procedural fairness if it were not.

On 10 March 1999 ECH took two steps to press its demands. First, its solicitors wrote to the Corporation seeking a copy of the report recommending that its application be refused and an opportunity of being heard by the Committee. The letter sought an answer by 3.30pm that day. Later that day, the solicitors for ECH received a letter from the solicitors for the Corporation denying that the Corporation was obliged to disclose its report or permit ECH to be heard in support of its application. It asserted that it was for the Committee to decide whether it should permit ECH to be heard. It invited ECH to be present in case the Committee decided to hear it. ECH took its next step and issued these proceedings.
On 11 March 1999 the parties appeared before me. By consent, an order was made that, until further order, the Corporation be prohibited from hearing and determining the application of ECH. Directions were then made to enable the prompt hearing of the application.

Should the Report be Disclosed?

As already mentioned, the Corporation concedes that the rules of procedural fairness apply in respect of applications under s60 for registration as an exempt employer. It has also conceded the right of ECH to make written representations to the Committee.
The rules of procedural fairness, generally speaking, require that, when an order or decision is to be made which will affect some right or interest of a person, that person is entitled to know the case against him: Kioa v West (supra) per Mason J at 582 to 583 and per Brennan J at 628. As the Judicial Committee of the Privy Council observed in Kanda v Government of Malaya [1962] AC 322 at 327, if the right to be heard is worth anything, it is essential that there be disclosure of the case that has to be met. The principle is not new. In his celebrated speech in Board of Education v Rice [1911] AC 179 at 182 Lord Loreburn LC said that a party to a controversy must have a fair opportunity for correcting or contradicting any relevant statement prejudicial to him. The principle was expressed in these terms by Brennan J in Kioa v West (supra) at 628:
“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 337; Ridge v Baldwin [1964] AC 40 at 113, 114 per Lord Morris; De Verteuil v Knaggs [1918] AC 557 at 560, 561.”

To like effect is the observation of Lord Diplock in Hadmor Productions Ltd v Hamilton [1983] AC 191 at 233 that one of the most fundamental rules of natural justice is the right to be informed of any adverse point that is going to be relied upon and to be given an opportunity of stating what the answer is. An example of the application of these principles is to be found in Bread Manufacturers (NSW) v Evans (1981) 180 CLR 404 per Mason and Wilson JJ at 436 and per Aickin J at 444. See also Minister for Immigration v Kumar (unreported, Federal Court, Davies, Foster and Hill JJ, 31 May 1990) and Irving v Minister for Immigration (1993) 44 FCR 540 at 568 to 569 per Drummond J.

The principle is not absolute. In Kioa v West (supra) at 628 Brennan J qualified its operation in these terms:
“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 inquiries 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:
“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 qualifications on the rule have a limited operation. As His Honour emphasised, in the ordinary case when no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision.

Furthermore, the principle does not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches the final decision: F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369.
In addition to these qualifications, it is necessary to remember that the content of the requirement to accord procedural fairness will vary according to circumstances: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118; Kioa v West (supra) per Mason J at 584 to 585, Wilson J at 594 to 595 and Brennan J at 612 to 615. Mr White QC, who appeared for the Corporation, referred to the observations of Aickin J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 377 and submitted that, while the rules of procedural fairness might apply in the case of a renewal of registration as an exempt employer or on an application to revoke registration, it did not apply on an application. For that reason, he said, the principles of procedural fairness did not require disclosure of the report. There are two reasons why this submission must fail. First, since Aickin J made that observation, which was in any event obiter, the concept of legitimate expectations has extended to the protection given by the common law rules of procedural fairness. As McHugh J observed in Haoucher (supra) at 680, prospective, as well as existing rights, interests, privileges and benefits are within the domain of procedural fairness. See also Doyle CJ in Chiropractors Association of Australia (SA) v WorkCover Corporation [1999] SASC 120 at para 84. Secondly, there is no reason in principle why a distinction should be drawn between the effect of an adverse report upon an application as compared with, say, the renewal of an existing licence or privilege.
The relevant principles were summarised by the Full Court of the Federal Court in Commissioner for ACT Reference v Alphone Pty Ltd (1994) 127 ALR 699 at 715 in these terms:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

With these principles in mind, I turn to the question whether the report should be disclosed.

The effect of the foregoing is that there would be no denial of procedural fairness if, without notice to ECH, the Committee decided to refuse its application in reliance only on the information provided by ECH itself: Kioa v West (supra) at 587; Sinnathamby v Minister for Immigration (1986) 66 ALR 502 at 506 and 513; Irving v Minister for Immigration (supra) per Drummond J at 568. But the position is different if the Committee had before it information obtained from a source other than ECH dealing with the extent to which ECH has complied with the performance standards of the Corporation. There would be a denial of procedural fairness if the Committee were to refuse the application of ECH on the ground that it had not satisfied the performance standards in reliance upon material which was adverse to ECH, material which is credible and both relevant and objectively significant to the decision to be made, unless it first gave ECH a proper opportunity to comment on it.
It is readily apparent that Mr Taylor’s report has been prepared for the consideration of the Committee. Mr Taylor is not a member of the Committee. Mr Taylor was instructed by the Corporation to perform the specific task of assessing the application by ECH. The assessment covers a number of topics including satisfying the Corporation’s performance standards. As the correspondence in this matter shows, the Corporation will submit the report to the Committee. Thus, the Committee will have available to it a report prepared by an outsider to the Committee. It is reasonable to infer that the Committee will have regard to the report when making its decision. The report recommends to the Committee that it refuse the application on the ground that ECH has not satisfied the performance standards. The report is adverse to ECH and, so far as the Committee is concerned, it is credible, relevant and significant to its decision. It is a report to which the Committee will give credence.
ECH is aware of the Taylor report and is aware that the report is adverse to it. However, it does not know the contents of that report or the grounds upon which Mr Taylor has recommended refusal of the application. Although Mr Taylor has informed ECH of what he perceived to be the short-comings in its action plan submitted on 12 February 1999, ECH does not know whether the report lists other grounds on which the action plan is said to be deficient. The report contains facts about ECH that are relevant to the Committee’s decision and which will be considered by the Committee in determining whether ECH has satisfied its performance standards. As s60(3) indicates, it is a fundamental requirement that ECH satisfies that standard if it is to be able to qualify as an exempt employer. It is, in short, a sine qua non.
It will not be an administrative burden to require the Corporation to disclose the report. Indeed, there has been no suggestion that it would. It is difficult to imagine how disclosure could create an undue burden. It simply requires a photocopy of the report to be made available to ECH. Although the Corporation said in its letter dated 9 March 1999 that the report is confidential, it does not now suggest that confidentiality is a reason why the report should not be disclosed to ECH. The objection to the disclosure is based on other grounds.
To summarise. The Taylor report is adverse to the application of ECH. It deals with facts material to that application. The Committee will have regard to it. It is a report commissioned by the Corporation for presentation to the Committee. The fact that the report is prepared by an employee of the Corporation is not a reason why the report should not be disclosed, since Mr Taylor is not a member of the Committee. There is no undue burden to the Corporation in requiring it to disclose the report and there is nothing confidential about it or any other feature of the report which requires that it not be disclosed to ECH. The principles of procedural fairness, therefore, require that the report be disclosed to ECH to give it a fair opportunity to make written representations so that it may correct or contradict any relevant statement prejudicial to it.
There is a policy reason which reinforces this conclusion. It is the Corporation which determines whether applications for an exempt employer will be granted. The Corporation has an interest in the outcome of such applications in that it will lose the levy paid by any successful applicant. I do not overlook the special levy paid by exempt employers. While I do not for one moment mean to suggest that the Committee and the Corporation do not consider applications to be exempt employers with anything less than proper objectivity, the fact nevertheless remains that disclosure of the report will reduce any risk of a reasonable apprehension of bias in the mind of a disappointed applicant. I do not rely on this as a ground for ordering disclosure but simply point to it as a benefit of disclosure.
The Corporation submits that the Taylor report should not be disclosed because the interests of ECH are not affected since ECH has not yet satisfied the performance standards. Mr White QC submitted that, until ECH meets the standards, the Corporation is not obliged to identify to it the matters it intends to take into account pursuant to s60(6) of the Act and inform ECH of adverse information that is credible, relevant and significant to the decision to enable ECH to deal with it. It is apparent that the submission is advanced on the footing that the application proceeds in stages. It is said that ECH must first satisfy the performance standards and then it will be informed of adverse information. Mr White stressed that the Corporation has gone out of its way to inform ECH of the performance standards and has extended the times within which ECH may comply with them.
It is not necessary to determine whether the application does in fact proceed in stages. Assuming for the purposes of argument that it does, the rules of procedural fairness will apply at each stage. But the fact that ECH is aware of the performance standards and has been told by Mr Taylor of the requirements which remain to be satisfied is not a reason for denying to ECH a copy of the report. As already mentioned, one cannot know what other adverse material to the application is contained in the report, material which ECH would be entitled to answer. As was stated in the letter dated 4 March 1999 from the Corporation’s solicitors and in the Corporation’s letter dated 9 March 1999, the application is current until it is determined by the Committee. ECH may make written submissions at any time until its application is determined. It can, therefore, make representations concerning adverse material contained in the report. Even if the report contains no more than a critique of the action plan submitted by ECH and identifies the failures to comply with the performance standards, ECH is entitled to see it. In addition, ECH is entitled to see the report so that it may be satisfied that it does not contain other adverse material. It is the fact that the Corporation has requested a report assessing the application and that the report is adverse to the application which requires that it be disclosed. Even if ECH had no answer to it, it would still have to be disclosed. As Hill J observed in Minister for Immigration v Kumar (supra):
“It is of course not to the point in determining whether a matter is required to be put to a person that that person may ultimately have no answer to it. It is the failure to give the person the opportunity to be heard that constitutes the breach of procedural fairness, not the question whether the person does in fact have an answer to the adverse matter which might affect the position.”
Mr White QC also placed a great deal of emphasis upon the fact that the Corporation had extended the time for ECH to comply with the performance standards beyond the original deadline of 31 December 1998, on the fact that the action plan lodged by ECH on 12 February 1999 did not satisfy the requirements and on the fact that ECH had not amended that action plan within a week thereafter. The affidavits relied on by the parties show that there is a dispute whether the Corporation has satisfactorily explained its requirements and whether the plan submitted on 5 March 1999 should be the same plan as submitted on 12 February 1999 which had been later adopted by the Central Health & Safety Committee of ECH or whether ECH was entitled to submit the final version of its action plan on 5 March 1999. There may have been some misunderstanding between the parties. But it is unnecessary to examine these questions because, for the reasons already given, it is the fact that the report is adverse to the application which requires its disclosure. Furthermore, the application is still current. Although it is obviously necessary for the Corporation to prescribe time limits in order that applications can be dealt with expeditiously and in time to enable all assessments to be completed before a new financial year, the time limits are not cast in stone. They are not supported by any statutory instrument. They are flexible, as the history of this matter shows. Even after the action plan had been lodged on 12 February, Mr Taylor was prepared to allow more time for it to be revised. The Corporation’s own documents show that a decision can be made as late as April. There is, therefore, no reason why the Committee can not now consider the application. Even if ECH has failed to comply with the prescribed time limits, it does not mean that it is not entitled to disclosure of the report.
Mr White QC also submitted that the Corporation had a wide discretion and that was a further reason why the report should not be disclosed. The argument must be rejected. The ambit of the discretion has nothing to do with the entitlement to be able to examine an adverse report which is to be relied on by the decision maker.

Finally, Mr White QC pointed to the fact that a disappointed applicant has the right pursuant to s62A of the Act to appeal to the Minister and says that ECH is not entitled to the relief it seeks. The Minister has an absolute discretion to decide an appeal when he thinks appropriate: see s62A(4). The Minister may (but is not obliged to) permit an appellant to appear personally or by representative: s62A(3). The mere existence of a right of appeal does not necessarily satisfy the requirements of natural justice: Twist v Randwick Municipal Council (1976) 136 CLR 106 per Barwick CJ at 111 and per Mason J at 113 to 116, where it is noted that regard must be had to the nature of the appeal and the orders which might be made on that appeal. See also Calvin v Carr [1980] AC 574 at 592 to 595. Generally speaking, only a full right of appeal with a hearing de novo is likely to displace the rules of procedural fairness. It cannot be said that the right of appeal to the Minister is a full right of appeal which will answer all relevant issues: cf Ridge v Baldwin [1964] AC 40 at 79. The failure of the Corporation to accord procedural fairness may have the consequence that the Minister will be no better informed than the Corporation, particularly if the Minister does not grant any right of audience to the applicant. Even if a right of audience is granted, the applicant will not know the content of the adverse report and will not be in a position to address it. Furthermore, the existence of a right of appeal is not a bar to the remedy. It is a matter which goes only to the discretion of the court. In all the circumstances, I do not think that the existence of a right of appeal to the Minister is a reason for denying ECH the relief it seeks in this application.
For all of these reasons, ECH is entitled to disclosure of the report. There will be an order making the following declarations:
That the Corporation shall forthwith make available to ECH a copy of the report prepared by the Corporation and referred to in its letter to ECH dated 9 March 1999.
That ECH is entitled to make representations in writing to the Committee concerning the content of the report.
In addition there will be an order discharging the order of prohibition made on 11 March.

[1999] SASC 133

1 April 1999