Conclusions

15.122         A wide range of Commonwealth laws may be seen as affecting the common law duty to afford procedural fairness to persons affected by the exercise of public power. These laws exclude the rules of procedural fairness in many different contexts by limiting or excluding access to hearings, to the reasons for a decision, to the evidence relied upon to reach a decision, to legal representation, and often deny an individual the right to respond to reasons and evidence.

15.123         There are departmental and other materials that provide guidance on the scope of the duty to afford procedural fairness in decision-making. Bodies such as the Administrative Review Council and the Attorney-General’s Department’s Administrative Law Policy Guide 2011 have produced such material, however they do not—and perhaps nor is it their role to—provide justifications for when it may be appropriate to deny procedural fairness.

15.124         The areas of Commonwealth law that may provide particular concern, as evidenced by parliamentary committee materials, submissions and other commentary are provisions in migration law and national security legislation related to the following areas of law;

• the mandatory cancellation of visas in the Migration Act;

• the fast track assessment process for UMAs in the Migration Act;

• the exclusion of natural justice from decisions under the Maritime Powers Act; and

• the process for ASIO security assessments for non-citizens in the ASIO Act.

15.125         These aspects of Commonwealth law might be reviewed to ensure that these laws do not unjustifiably deny procedural fairness. Any review of the process for ASIO security assessments of non-citizens falls within the remit of the INSLM.