15.37 A wide range of Commonwealth laws may be seen to deny the duty to afford procedural fairness, broadly conceived, to persons affected by the exercise of public power. Some of these laws impose limits on procedural fairness that have long been recognised by the common law, for example, imposing an obligation on courts to ‘act judicially’. While the concept of procedural fairness has developed significantly, these traditional limits are crucial to understanding the scope of the freedom, and possible justifications for new restrictions.
15.38 The Terms of Reference for this Inquiry asked the ALRC to include consideration of Commonwealth laws in commercial and corporate regulation, environmental regulation and workplace relations law that deny procedural fairness to persons affected by the exercise of public power. This chapter will examine some of these laws that arise in the following areas:
corporate and commercial regulation;
migration law; and
national security legislation.
A range of stakeholders raised concerns about laws that deny procedural fairness to persons affected by the exercise of public power: Law Council of Australia, Submission 75; Australian Securities and Investments Commission, Submission 74; Law Society of NSW Young Lawyers, Submission 69; The Tax Institute, Submission 68; ANU Migration Law Program, Submission 59; Institute of Public Affairs, Submission 49; Refugee Council of Australia, Submission 41; Australian Lawyers for Human Rights, Submission 43; Human Rights Law Centre, Submission 39; Refugee Advice and Casework Service, Submission 30; Gilbert and Tobin Centre of Public Law, Submission 22; UNSW Law Society, Submission 19.
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 489 (Gleeson CJ).