Protections from statutory encroachment

Australian Constitution

14.27  The Australian Constitution does not prevent statutory encroachment upon the duty to afford procedural fairness in administrative decision making. It does not prevent Parliament from modifying, by clear language, the rules of natural justice in their application to non-judicial decisions under Commonwealth law. However, as noted above, denial of procedural fairness in the exercise of a statutory power, where the duty to observe it has not been validly limited or extinguished by statute, will result in a decision made in excess of jurisdiction and attract the issue of prohibition under s 75(v) of the Constitution.^[46]

Principle of legality

14.28  The principle of legality provides some protection from statutory encroachment upon the duty to observe procedural fairness.^[47] When interpreting a statute, courts will presume that Parliament did not intend to exclude procedural fairness, unless this intention was made unambiguously clear.^[48] The High Court has stated that exclusion of the principles of natural justice can only occur by ‘plain words of necessary intendment’.^[49] In Saeed, the High Court said that the ‘presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality’.^[50]

14.29  International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.^[51] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.^[52]

International law

14.30  Article 14.1 of the International Covenant on Civil and Political Rights (ICCPR)^[53] provides that all persons should be ‘equal before the courts and tribunals’ and that, ‘in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’. The phrase ‘suit at law’ has been taken to include some administrative law matters, and this right extends to all individuals, including non-citizens.^[54]

Bills of rights

14.31  In some countries, bills of rights or human rights statutes provide some protection of procedural fairness.

14.32  In the United States, persons enjoy a constitutional guarantee of due process in the administration of the law.^[55] In New Zealand, human rights legislation requires any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law to observe natural justice.^[56] In Canada, any deprivation of life, liberty and security of the person must be informed by principles of ‘fundamental justice’.^[57]