Laws that exclude procedural fairness

14.37  A number of Commonwealth laws purport to expressly exclude procedural fairness in the exercise of a statutory power, by providing, for example, that natural justice does not apply to a particular decision.^[66]

14.38  Some of these laws are examined below, in relation to corporate and commercial regulation; migration law; and the exercise of maritime powers.

Corporate and commercial regulation

14.39  Procedural fairness is excluded in provisions of the Corporations Act 2001 (Cth). The Australian Securities and Investments Commission (ASIC) highlighted a number of these, but noted that these provisions are the exception rather than the rule.^[67] ASIC submitted that it may be appropriate in some circumstances to limit procedural fairness to ‘prevent financial loss or to protect the integrity of financial markets’.^[68]

14.40  Provisions of the Corporations Act that are designed to prevent financial loss caused by fraud or improper financial management contain limitations on procedural fairness to meet this policy objective. Section 739 empowers ASIC to issue interim ‘stop orders’ prohibiting offers of security where a disclosure document or associated advertisement is defective.^[69] Such stop orders may be made without the holding of a hearing where ASIC considers any delay in making the order would be prejudicial to the public interest.^[70]

14.41  The Law Council of Australia (Law Council) considered s 739 to be justified, arguing that it was a ‘legitimate temporary measure’, and that there exists a ‘public interest in exercising such an emergency power in avoiding financial loss caused by fraud or improper management’.^[71] Such arguments may suggest that the provision satisfies the kind of proportionality analysis set out above.

14.42  Section 915B enables ASIC to suspend or cancel an Australian Financial Services (AFS) licence by giving written notice, and without first providing procedural fairness by way of a hearing, in certain circumstances. These include where the licensee:

• becomes insolvent;^[72]

• is convicted of serious fraud;^[73]

• becomes incapable of managing their affairs because of mental or physical incapacity;^[74] or

• is a body corporate and the body is a responsible entity of a registered investment where the scheme members have or are likely to suffer loss because of a breach of the Corporations Act.^[75]

14.43  An ASIC regulatory guide outlines the factors taken into account when considering whether to suspend or cancel an AFS licence. It notes that, in general, suspension or cancellation of an AFS licence is likely where there exist serious concerns about the licensee: this is ‘particularly so in instances where there is a need to protect the public and where conduct may result in investor detriment’.^[76]

14.44  ASIC submitted that s 915B appropriately enables the exclusion of procedural fairness from a decision to suspend or cancel an AFS licence in specified exceptional circumstances.^[77] In all other circumstances, ASIC is expressly required to afford procedural fairness before seeking to suspend or cancel a licence.^[78]

14.45  The Law Council agreed that there may be a public interest in suspending an AFS licence without a hearing in certain circumstances, but considered that cancellation of a licence without affording procedural fairness was not justified.^[79]

Migration law

14.46  The ALRC received a number of submissions regarding provisions in migration law that exclude procedural fairness.^[80] In particular, concerns about procedural fairness were raised in the following areas:

• decisions to refuse to grant or to cancel a visa, and the mandatory cancellation of visas; and

• the ‘fast track’ review process for decisions to refuse protection visas to some applicants.

14.47  The ALRC considers that the laws in relation to mandatory cancellation of visas on character grounds and the fast track review process would benefit from further review to consider whether the exclusion of the duty to afford procedural fairness is proportionate, given the gravity of the consequences for those affected by the relevant decision. The Law Council has suggested that the question of whether laws disproportionately encroach upon the duty to observe procedural fairness would most effectively be considered by an independent monitor of migration legislation, akin to the Independent National Security Legislation Monitor.^[81] The Senate Legal and Constitutional Affairs Committee recommended that changes made to the Migration Act in 2014, including the establishment of the fast track review process, should be reviewed three years after their enactment.

Decisions to refuse to grant or to cancel a visa

14.48  A visa may, or in some circumstances, must, be cancelled or not granted if the visa holder does not satisfy the Minister that they pass a ‘character test’.^[82] A person does not pass the character test if, among other things, the person has a ‘substantial’ criminal record; has been convicted of certain offences; or is reasonably suspected of being a member of, or having an association with, a group or organisation involved in criminal conduct.^[83]

14.49  Section 501(3) excludes natural justice from the Minister’s discretionary power to refuse to grant or to cancel a visa if the Minister reasonably suspects that a person does not satisfy the character test and is satisfied that the decision is in the national interest. Decisions made under s 501(3) may only be made by the Minister personally.^[84]

14.50  The rules of natural justice are excluded from a decision made under s 501(3A) of the Migration Act,^[85] which compels the Minister to cancel a non-citizen’s visa if the Minister is satisfied that:

• the person has been sentenced to death, or imprisonment for life or to a term of imprisonment of 12 months or more;^[86] or

• an Australian or foreign court has convicted the person of one or more sexually-based offences involving a child, or found the person guilty of such an offence, or found a charge proved for such an offence, even if the person was discharged without conviction;^[87] and

• the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or a territory.^[88]

14.51  The mandatory visa cancellation power was introduced in 2014. The Explanatory Memorandum to the Bill containing the proposed amendment stated that the intention of the provision is that

a decision to cancel a person’s visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.^[89]

14.52  A number of submissions raised concerns about the Minister’s visa cancellation powers.^[90] There was particular concern about the mandatory visa cancellation under s 501(3A). Prior to 2014, visas were not subject to mandatory cancellation on character grounds. A decision maker was able to consider a range of factors when exercising the discretion to cancel a visa. Kingsford Legal Centre argued that, ‘in removing the Minister’s discretion to consider these factors, the person whose visa is to be cancelled is denied due process’.^[91] Councils for Civil Liberties observed that the ‘exclusion of natural justice in these circumstances does not appear to serve any legitimate purpose’.^[92]

14.53  Some stakeholders argued that the seriousness of a decision to cancel a visa necessitates the application of procedural fairness to the decision-making process.^[93] Cancellation of a visa may have implications for a person’s liberty: a non-citizen in Australia without a valid visa is subject to mandatory detention.^[94] Where a person cannot be removed from Australia,^[95] that person may be detained indefinitely.^[96]

14.54  The Law Institute of Victoria argued, in relation to mandatory visa cancellation, that

[t]he provision denies natural justice which can only be justified where a decision must be made urgently to preserve a position or prevent something happening. This clearly would not be the case when an individual is incarcerated for more than 12 months and a decision could be made earlier in their period of detention.^[97]

14.55  They further argued that other existing provisions allowing for cancellation of a visa on character grounds were

already sufficient to ensure that the visa of a person who poses a real risk of harm to the Australian community can be cancelled before their release from prison and to ensure that they are detained in immigration detention while merits appeals are being conducted. The mandatory cancellation provisions are, in our view, unnecessary to achieve the stated policy intention.^[98]

14.56  A mandatory decision to cancel a visa is not reviewable by the Administrative Appeals Tribunal (AAT). However, a person is able to seek revocation of the decision,^[99] and a decision of a delegate of the Minister not to revoke the visa cancellation will be reviewable by the AAT.^[100]

14.57  The Minister, acting personally, is empowered to set aside a decision of the AAT to revoke the cancellation of a visa under s 501(3A), and the rules of natural justice do not apply to the Minister’s decision.^[101] The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) justified this by stating that ‘natural justice will have already been provided to the non-citizen through the revocation process’.^[102]

14.58  The Refugee and Immigration Legal Centre Inc (RILC) was concerned about the Minister’s power to set aside AAT decisions regarding visa cancellations, considering that this was ‘an unwarranted and unprecedented expansion of personal powers of the Minister [which] would also lead to persons being denied a real and meaningful opportunity to present and explain their case before a decision is made on it’.^[103]

14.59  The Migration Act also makes provision for mandatory cancellation of a visa on security grounds. If ASIO makes an assessment containing advice that it suspects that the person might be, directly or indirectly, a risk to security, recommends that the person’s visa be cancelled, and the person is outside Australia, the Minister must cancel that person’s visa.^[104] The rules of natural justice do not apply to this decision.^[105]

14.60  Where a visa is cancelled under s 134B, the Minister must revoke the cancellation as soon as reasonably practicable after 28 days from the date of cancellation, or where ASIO makes an assessment recommending that the cancellation be revoked.^[106] However, cancellation must not be revoked if ASIO makes an assessment containing advice that the former visa holder is a risk to security and recommending that the cancellation not be revoked.^[107] These provisions were introduced into the Migration Act in 2014.^[108]

14.61  The Explanatory Memorandum to the Bill containing the proposed amendments explained that the power to cancel a visa under s 134B could be used in circumstances where ASIO suspects that a person who applies for a visa from outside Australia may pose a risk to national security, but ASIO either has insufficient information or lacks time to furnish a security assessment in advance of the person’s anticipated arrival in Australia.^[109]

14.62  ASIO argued that the provisions were justified. It stated that the regime prior to the amending Act was

effective where ASIO has the time and information available to conduct an assessment as to whether a person is directly or indirectly a risk to security, or a danger to the Australian community. However, scenarios can arise where the travel of a non-citizen to Australia is imminent, but assessing whether that person presents a direct or indirect risk to security on the basis of new information is not feasible before the person travels. … Depending on the gravity of the potential threat, it may be appropriate to delay that non-citizen’s travel to Australia while further investigation is undertaken.^[110]

14.63  The Inspector-General of Intelligence and Security (IGIS) noted that the Act provides ‘no express provision allowing or preventing ASIO from making multiple temporary cancellation requests’.^[111] It further noted that such cancellation requests are not subject to AAT review, and that such requests, particularly any cases of multiple requests, will be subject to IGIS scrutiny.^[112]

14.64  A number of other provisions of the Migration Act explicitly provide that natural justice does not apply in decisions to revoke, not to grant or cancel a visa. The rules of natural justice are excluded from a decision of the Minister, acting personally:

• To cancel a visa when satisfied that information provided for the purpose of obtaining that visa was incorrect or bogus, and that it would be in the public interest.^[113]

• To cancel a visa when satisfied that a ground for cancellation of the visa exists under s 116 and that it would be in the public interest.^[114] Section 116 provides the Minister with a power to cancel visas for a range of reasons, including that the holder has not complied with a condition of the visa;^[115] or that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community, or a risk to the health or safety of an individual or individuals.^[116]

• To refuse to grant to a person a temporary safe haven visa, or to cancel a person’s temporary safe haven visa.^[117]

Fast track review process

14.65  In 2014, the Migration Actwas amended^[118]to create a new ‘fast track’ review process for decisions to refuse protection visas to some applicants, including ‘unauthorised maritime arrivals’^[119] who entered Australia between prescribed times.^[120] Those applicants are described in the Act as ‘fast track review applicants’.^[121] Several stakeholders argued that this new process arbitrarily and unfairly excludes procedural fairness from protection visa application processes for those subject to it.^[122]

14.66  Under pt 7AA of the Migration Act, the Minister must refer decisions to refuse protection visas to fast track review applicants to a new body, the Immigration Assessment Authority (IAA).^[123] The fast track review process confines the obligation for the IAA to observe the rules of natural justice by way of an exhaustive statement of the natural justice hearing rule that applies to its reviews.^[124]

14.67  The obligation to provide a visa applicant with a hearing is excluded in the fast track review process.^[125] Unless there are exceptional circumstances, the IAA must review decisions referred to it without accepting or requesting new information and without interviewing the referred applicant.^[126]

14.68  Additionally, some applicants for protection visas will not be eligible to have a refusal reviewed by the IAA. These applicants include persons who, in the opinion of the Minister, have made a claim for protection in another country that was refused; give or present a bogus document in support of their application; or make a claim that is manifestly unfounded.^[127] The Minister may expand both the class of persons subject to the fast track review process, and the class of persons excluded from this process, by legislative instrument.^[128]

14.69  The Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) emphasised the importance of the fast resolution of the visa application process:

The Government believes the faster a case can be finally determined, the better outcomes it can deliver for both the applicant and those who support them in the Australian community—eliminating long periods of uncertainty and allowing people to move on and make decisions about the next stage of their lives.

…

[The IAA] will deliver the Government’s policy outcome of improving the efficiency and cost effectiveness of merits review currently experienced by refused protection visa applicants in Australia and ensure timely progress of their cases towards a final and accurate determination regarding their immigration status.^[129]

14.70  A number of criticisms of this process were made on procedural fairness grounds.^[130] The Refugee Council of Australia (RCOA) argued that the new fast track system administered by the IAA fails to provide ‘an adequate framework for ensuring accuracy and procedural fairness in decision-making’.^[131]

14.71  The ANU Migration Law Program noted that ‘there is no provision to require a fast track applicant to be notified that the primary decision has been referred by the minister to the IAA’.^[132] The lack of provision for a hearing, except in exceptional circumstances, was also a cause of concern. The RCOA argued that:

Through denying asylum seekers the opportunity to put forward or respond to information relevant to their claims and, in some cases, blocking access to review altogether, the fast-track process will create a much higher risk of inaccuracy in decision-making. This in turn increases the danger of asylum seekers being erroneously returned to situations where they could face persecution or other forms of serious harm.^[133]

14.72  RACS queried the proportionality of the fast track process, ‘in light of the gravity of what is at stake in the context of refugee status determination—not only the deprivation of a person’s liberty under the Migration Act but potential for the exposure of a person to a risk of persecution’.^[134] The Law Council similarly ‘considered that the objective of administrative efficiency is not sufficient to deny procedural fairness’.^[135] Councils for Civil Liberties said that

while protecting the Australian community from threats posed to their safety and security is a laudable objective that is justified in a free and democratic society, the Fast Track Assessment Process has nothing to do with making Australians safer. … The real purpose of the Fast Track Assessment Process appears more clearly targeted at ensuring that those who have come to Australia by boat and remain in Australian detention centers are not granted protection by being processed quickly with limited access to review. Further, it is part of a broader aim to deter others from coming to Australia by boat. … [T]his purpose is not justified and should have no place in a free and democratic society.^[136]

14.73  The ANU Migration Law Program suggested that the end of processing claims expeditiously could be met by other means with less impact on procedural fairness:

There is no reason why the review of primary ‘fast track’ decisions of applicants who form part of the ‘asylum legacy caseload’ cannot and should not be undertaken by the RRT … and prioritised ahead of other on-shore protection cases. This would ensure that reviews of ‘fast track’ decisions are finalised efficiently and expeditiously in accordance with Government policy, and without sacrificing the procedural fairness safeguards guaranteed by the RRT’s statutory processes and procedures.^[137]

14.74  In 2015, the England and Wales Court of Appeal found that a fast-track appeal process for review of applications for asylum in the United Kingdom was ‘structurally unfair and unjust’.^[138] Lord Dyson stated that

in view of (i) the complex and difficult nature of the issues that are often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals who are in detention; and (iii) the considerable number of tasks that they have to perform … the timetable for the conduct of these appeals is so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the [Fast Track Rules] regime.^[139]

Maritime Powers Act 2013 (Cth)

14.75  The Maritime Powers Act provides a broad set of enforcement powers, exercisable by maritime officers, for use in, and in relation to, maritime areas.^[140] The Act was amended in 2014^[141] to exclude the rules of natural justice as they relate to the exercise of a number of maritime powers:

• s 22B provides that the rules of natural justice do not apply to authorisations of the exercise of maritime powers made under pt 2 div 2 of the Act; and

• s75Bexcludes the rules of natural justice from a number of provisions, which largely relate to maritime officers’ powers to detain vessels and aircraft, as well as to place, detain and move persons aboard detained vessels or aircrafts.^[142]

14.76  The Scrutiny of Bills Committee, when examining the amending Bill, was concerned by the proposed exclusion of natural justice:

The Maritime Powers Act contains a number of significant and coercive ‘maritime powers’ and the explanatory memorandum does not provide sufficient justification for the exclusion of natural justice … Not all the powers are the same or require the same considerations in relation to their exercise. For example, different considerations may arise in relation to powers which enable a person or vessel to be detained than in relation to powers which enable a person or vessel to be transported to a destination (which may be outside of Australia). Without further details and analysis, the claim that application of the rules of natural justice is not consistent with the ‘unique circumstances … in a maritime environment’ does not enable the committee to properly consider the appropriateness of the proposed exclusion of natural justice.^[143]

14.77  In light of these concerns, the Committee sought the Minister’s advice as to why the exclusion of natural justice was considered reasonable.^[144] The Minister replied that ‘in the operational context in which these powers are to be exercised, any formal requirement for natural justice would not be practicable’, and provided a detailed explanation of the effect of each new provision.^[145] The Committee reiterated its concerns about the exclusion of the rules of procedural fairness and referred the provisions to the Senate for further consideration.^[146]

14.78  In CPCF v Minister for Immigration and Border Protection, the High Court considered s 72(4) as it was prior to the 2014 amendments that specifically excluded the application of natural justice from the provision. The High Court found that the power under s 72(4) to take the plaintiff to a place outside Australia was not subject to an obligation to give the plaintiff an opportunity to be heard about the exercise of that power.^[147]

14.79  A number of submissions to this Inquiry raised concerns about the exclusion of natural justice from the Maritime Powers Act.^[148]

14.80  The Human Rights Law Centre contested the claim that affording fairness at sea can be impracticable, arguing that

‘impracticability’ does not justify completely excluding the duty to act fairly. It is a factor relevant to what fairness practically requires in the particular circumstances. More fundamentally, to the extent that acting fairly at sea could carry practical challenges, administrative inconvenience is a necessary and reasonable price to pay to ensure important decisions affecting people’s rights and liberties are properly made.^[149]

14.81  The Law Council argued that the exclusion of the rules of procedural fairness cannot be justified in light of the seriousness of the consequences for persons removed from Australian waters—for example, ‘the relocation of affected individuals to a place where they face a real risk of persecution’.^[150]

14.82  The Senate Legal and Constitutional Affairs Committee has recommended that changes made to the Maritime Powers Act in 2014 be reviewed three years after their enactment.^[151]