The common law

14.6     In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (Lam), Callinan J explained that ‘natural justice by giving a right to be heard has long been the law of many civilised societies’. He quoted Stanley de Smith, Harry Woolf and Jeffrey Jowell:

That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’s Medea, enshrined in the scriptures, mentioned by St Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden.^[3]

14.7     The common law required courts of law to observe the two basic requirements of natural justice: fair hearing and the avoidance of actual or apprehended bias. These rules were extended to administrative tribunals that have a ‘duty to act judicially’ in making decisions affecting vested rights and liberties of persons. Later, judges began to speak of a ‘duty to act fairly’ because the idea of acting judicially was not flexible enough to apply to administrative actions that were not strictly judicial but nevertheless affected vested rights and liberties.^[4]

14.8     Procedural fairness traditionally applied to decisions affecting rights and interests related to ‘personal liberty, status, preservation of livelihood and property’.^[5] Over the course of the 20th century, the concept of procedural fairness developed significantly, eventually applying to a diverse range of government decisions affecting property, employment, reputation, immigration and financial and commercial interests.^[6]

14.9     In Annetts v McCann, a case involving the right of two parents to make submissions at a coronial inquiry into the deaths of their two sons, Mason CJ, Deane and McHugh JJ noted the continued evolution of the concept of procedural fairness. They remarked that ‘many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine’s protection’.^[7] It has more recently been said that the common law doctrine has a ‘wide application and is presumed by the courts to apply to the exercise of virtually all statutory powers’.^[8]

14.10  There has been some debate as to whether the duty to afford procedural fairness in the exercise of a statutory power derives from the common law or from construction of the relevant statute.^[9] In Plaintiff M61/2010E v Commonwealth, the Full Bench of the High Court thought it ‘unnecessary to consider whether identifying the root of the obligation remains an open question or whether the competing views would lead to any different result’.^[10] In 2012, the High Court considered that such a debate was unproductive and proceeded on a false dichotomy. The principles and presumptions of statutory construction are part of the common law, and as such

the ‘common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power.^[11]