15.97 There are provisions in the empowering Acts of some statutory bodies that limit access to legal representation. There may be circumstances where a person whose interests are adversely affected by an administrative decision, is entitled to legal representation. Section 596(1) of the Fair Work Act 2009 (Cth) is an example of a provision that may deny procedural fairness by limiting or qualifying the circumstances when a party may access legal representation. The section provides that a person may be represented by an agent or a lawyer at the Fair Work Commission (FWC) only with the permission of the FWC, subject to exceptions in s 596(4). Section 596(2) outlines the factors the FWC will consider when assessing an application for representation by a lawyer or an agent.
15.98 The Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) would contains a number of clauses that would deny procedural fairness to persons affected by the exercise of ministerial discretion to cancel their Australian citizenship in light of their allegiance to, or activity with, foreign fighting and terrorist organisations. Several clauses in the Bill exclude the rules of natural justice and exclude s 47 of the Australian Citizenship Act 2007 (Cth) which requires the Minister to provide notice of decisions to persons whose citizenship is revoked.
The FWC issues Practice Notes that guide employees and employers in the FWC’s rules and procedures. These are published on the FWC’s website at <www.fwc.gov.au>. See for instance, Australian Fair Work Commission, Practice Note 2/2013: Fair Hearings (March 2015).
Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) ss 33AA, 35 and 35A.
At the time of writing, the Bill had been referred to the Parliamentary Joint Committee on Intelligence and Security. The Committee was asked to report to Parliament by 21 August 2015.