15.99 As with other rights, freedoms and privileges, laws that limit or deny procedural fairness may be justified on policy grounds, typically in the interests of quick and efficient decision-making, or when a matter is sufficiently clear or serious such as in national security matters.
15.100 Academic writing and extra-judicial commentary provide useful criteria or principles from which to assess when it is appropriately justified to exclude procedural fairness.
15.101 Professor Saul has suggested a list of principles to be considered in any decision to exclude procedural fairness. These are:
the public interest in national security;
fairness to affected individuals;
the accountability of administrative decision-making; and
public confidence in open justice.
15.102 Professor Matthew Groves has observed that ‘the evolution of the principles governing the implication of the duty to observe the rules of procedural fairness has been matched by a similar evolution in their exclusion’. Groves goes on to explain that
The cases which have accepted that natural justice has been excluded or greatly limited by implication do not yield a clear general principle because they depend heavily on the purpose and content of the statute under consideration.
15.103 Other factors have been highlighted to provide guidance as to when it is appropriate to limit or exclude procedural fairness. These are:
the statutory framework;
the circumstances concerning the individual decision to be made;
the subject matter of the decision;
the nature of the inquiry; and
the rules of a tribunal (for example, the procedures that it has normally adopted or which are statutorily required).
15.104 Bodies such as the Administrative Review Council and guides such as the Attorney-General’s Department’s Administrative Law Policy Guide 2011 explain the scope and meaning of the duty to afford procedural fairness. They do not, however, provide justifications for when it may be appropriate to deny procedural fairness and this is perhaps not their role.
15.105 The Administrative Review Council’s report, The Scope of Judicial Review, provides that procedural fairness should be an element in government decision-making in all contexts, and accepts that what is considered to be fair will vary with the circumstances.
15.106 The Attorney-General’s Department’s Administrative Law Policy Guide 2011 provides that
Administrative power that affects rights and entitlements should be sufficiently defined to ensure the scope of the power is clear. Legislative provisions that give administrators ill-defined and wide powers, delegate power to a person without setting criteria which that person must meet, or fail to provide for people to be notified of their rights of appeal against administrative decisions are of concern to the Senate Scrutiny of Bills Committee and the Senate Standing Committee on Regulations and Ordinances.
15.107 When considering how limitations on procedural fairness may be appropriately justified, one useful starting point is the ICCPR. Article 14 of the ICCPR protects the proper administration of justice, equality before courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. This right extends to all individuals including non-citizens such as refugees.
15.108 Article 14(1) acknowledges that courts have the power to exclude all or part of the public from hearings for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public.
15.109 Article 4 of the ICCPR is a derogation clause that provides States Parties may derogate from their obligations in times of ‘public emergency which threatens the life of the nation and the existence of which is officially proclaimed’.
15.110 The UN Human Rights Committee, commenting on arts 4 and 14, stressed that even in such emergencies, the derogations must be proportionate in the circumstances:
While article 14 is not included in the list of non-derogable rights of article 4, paragraph 2 of the Covenant, States derogating from normal procedures required under article 14 in circumstances of a public emergency should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation.
15.111 Broadly speaking, legislatures have justified the limitation or exclusion of procedural fairness rules in the interests of urgency in certain decision-making, and to prevent a more serious harm.
15.112 The need for quick action on a pressing matter and the desire to reduce delay by streamlining administrative processes is often raised as a justification for excluding procedural fairness.
15.113 In some circumstances, urgent action to prevent an imminent harm may necessitate justifiable limits on procedural fairness. In Marine Hull and Liability Insurance Co Ltd v Hurford, Wilcox J explained that the requirements of procedural fairness may be appropriately limited where ‘powers which, by their very nature, are inconsistent with an obligation to accord an opportunity to be heard’.
15.114 However, some argued that the aim of quick decision-making should not justify laws that deny procedural fairness. ANU’s Migration Law Program argued that, in the context of migration law, ‘the erosion of procedural fairness obligations should not be justified on the basis of efficiency or expediency in decision-making’.
15.115 Similarly, RACS argued that while consideration may be given to questions of urgency, ‘given the imperative for administrative decisions to be wise, just and fair, any limits on procedural fairness should be a last resort, and avoided to the greatest extent possible’.
15.116 Some laws, particularly statutes empowering tribunals and other quasi-judicial bodies with legal and regulatory powers, explicitly require such bodies to make ‘speedy’ decisions while still balancing this imperative with the rules of procedural fairness.
Prevent serious harm
15.117 There may also be circumstances where it is appropriate to exclude procedural fairness in order to prevent a more pressing or serious harm. ASIC supported this justificatory principle, noting that it may be appropriate to limit procedural fairness to ‘prevent financial loss or to protect the integrity of financial markets’.
15.118 This justification may fall within the permissible limitations on procedural rights to ensure ‘public order’, as stipulated in art 14(1) of the ICCPR.
Proportionality and procedural fairness
15.119 Some stakeholders favoured the adoption of a proportionality test to determine if a law that excludes procedural fairness is justified. For instance, the UNSW Law Society argued that a
test of proportionality, while a flexible test, ought to be considered through a different tone depending on what right is being infringed upon. The weight or importance of the particular right is formally recognised as part of the test as a factor considered in the determination of the ‘overall social detriment’ in the appropriateness stage. It is clear that the more essential a right is perceived to be, the law infringing upon it must either provide great benefits and/or be as least intrusive as possible. The elements of suitability and necessity, while normally low thresholds, will be elevated in importance in cases of fundamental rights. Procedural fairness is such a right.
15.120 As the UNSW Law Society outlined, applying a proportionality test to laws that deny procedural fairness would involve assessing whether the laws are
(1) practically suitable for achieving a legitimate policy objective;
(2) necessary, in the sense that there are no alternative means of pursuing that objective that are less inimical to procedural fairness, yet are equally practicable and as likely to succeed; and
(3) appropriate, in that the detriment caused by infringing on procedural fairness must not exceed the social benefit of the legislation. Legislation is particularly likely to be inappropriate when it detrimentally affects the essential content of the right.
15.121 The Law Council submitted that the process for determining whether a limit is ‘reasonable’ and ‘demonstrably justified’ involves answering two instructive questions:
(a) Is the purpose of the limit justified?
(b) Are the means which the limit operates reasonable?
In responding to the first question, the purpose must be, on the balance of probabilities:
(a) lawful or ‘prescribed by law’—that is, not ultra vires, as well as clear and accessible to the public; and
(b) directed toward a ‘pressing and substantial’ public interest.
Ben Saul, ‘Security and Fairness in Australian Public Law’ (2013) No. 13/22 Sydney Law School Legal Studies Research Paper 1.
Groves, above n 1, 302.
Creyke, McMillan and Smyth, above n 9, [10.4.4].
Administrative Review Council, ‘The Scope of Judicial Review’ (Report 47, Australian Government, 2006) 52.
Administrative Review Council, Australian Administrative Law Policy Guide (2011).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
United Nations Human Rights Committee, General Comment No 32 on Article 14 (Administration of Justice) of the ICCPR (CCPR/C/GC/32).
For discussion on when courts may construe a legislative intention to exclude procedural fairness in the interests of urgency, see, Allars, above n 16, [6.38].
Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234, 241.
ANU Migration Law Program, Submission 59.
Refugee Advice and Casework Service, Submission 30.
Examples of these, many of which are state statutes, are outlined in a speech given by the Hon Justice Alan Wilson, ‘Procedural Fairness v Modern Tribunals: Can the Twain Meet?’ (speech delivered at the Queensland Law School, Brisbane, 31 May 2013).
Australian Securities and Investments Commission, Submission 74.
Human Rights Law Centre, Submission 39; UNSW Law Society, Submission 19.
UNSW Law Society, Submission 19.
Law Council of Australia, Submission 75.