15.29 The Australian Constitution does not provide express protection for procedural fairness. However, procedural fairness in relation to decisions made by officers of the Commonwealth may attract a remedy under the Constitution. In Re Refugee Tribunal; Ex parte Aala, a majority of the High Court held that the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction and thus attract the issue of prohibition under s 75(v) of the Australian.
15.30 There is some suggestion that s 71 of the Constitution may provide some protection for procedural rights, though this relates more to due process considerations by Ch III courts. Section 71 provides:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
15.31 In Re Tracey; Ex parte Ryan, Deane J stated that s 71 is the ‘Constitution’s only general guarantee of due process’. Similarly in Leeth v Commonwealth,a majority of the High Court stated:
It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power.
Principle of legality
15.32 The principle of legality provides some protection for procedural fairness. When interpreting a statute, courts will presume that Parliament did not intend to limit procedural fairness, unless this intention was made unambiguously clear. In Miah, McHugh J held that the ‘the common law rules of natural justice … are taken to apply to the exercise of public power unless clearly excluded’.
15.33 In Annetts v McCann, Mason CJ, Deane and McHugh JJ said:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
15.34 Article 14 of the International Covenant on Civil and Political Rights (ICCPR) provides that all persons should be ‘equal before the courts and tribunals’ and that, ‘in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’.
Bills of rights
15.35 In some countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. The right to procedural fairness for persons affected by the exercise of public power is expressed differently in other jurisdictions. In the United States, persons enjoy a constitutional guarantee of due process in the administration of the law. In New Zealand, the human rights legislation requires observance of procedural fairness.
15.36 In Canada, any deprivation of life, liberty and security of the person must be informed by principles of fundamental justice according to the Canadian Charter of Rights and Freedoms.
Under s 75(v) of the Australian Constitution, a writ of mandamus or prohibition or an injunction may be sought against an officer of the Commonwealth.
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.
Re Tracey; ex parte Ryan (1989) 166 CLR 518, 580. The current state of High Court authority on the due process as derived from the separation of judicial power under the Australian Constitution is discussed in Leslie Zines, The High Court and the Constitution (Federation Press, 6th ed, 2015) 300–07.
Leeth v Commonwealth (1992) 174 CLR 455, 470 (Mason CJ, Dawson and McHugh JJ).
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 1.
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252,  (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Kioa v West (1985) 159 CLR 550, 584 (Mason J).
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 93.
Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ). Quoted with approval in Saaed v Minister for Immigration and Citizenship (2010) 241 CLR 252,  (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
United States Constitution amend V.
New Zealand Bill of Rights Act 1990 (NZ) s 27(1).
Canada Act 1982 c 11 s 7.