15.1 The common law recognises a duty to accord a person procedural fairness—a term often used interchangeably with natural justice—when a decision is made that affects a person’s rights, interests or legitimate expectations. Courts may construe a statutory provision as implying that a power be exercised with regard to procedural fairness where a party’s interests might be adversely affected by the exercise of that power.
15.2 This chapter considers the duty to afford procedural fairness in administrative decision-making. This chapter discusses the source and rationale for procedural fairness; how it is protected from statutory encroachment; and when laws that deny procedural fairness may be justified.
15.3 In Plaintiff M61/2010 v Commonwealth, the full bench of the High Court explained the scope of the common law duty to afford procedural fairness to persons affected by the exercise of public power:
It was said in Annetts v McCann, that it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power. In Kioa v West, different views were expressed about whether the requirements of procedural fairness arise from the common law or instead depend upon drawing an implication from the legislation which confers authority to decide. It is unnecessary to consider whether identifying the root of the obligation remains an open question or whether the competing views would lead to any different result. It is well established, as held in Annetts, that the principles of procedural fairness may be excluded only by ‘plain words of necessary intendment’.
15.4 In Kioa v West, Mason J said:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
15.5 Further, in S10/2011 v Minister for Immigration, the High Court held that the principle and presumptions of statutory construction reflect the interactions of the three branches of government, and while not constitutionally entrenched, are part of the common law of Australia:
[O]ne may state that the ‘common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power. If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from state proceeds upon a false dichotomy and is unproductive.
15.6 Procedural fairness relates to the manner in which a decision is made, rather than the reasoning behind the decision. Issues of procedural fairness arise in the context of administrative decision-making, that is, decisions made by government departments and officials and tribunals. Such decisions may affect people in a range of contexts, including where:
decisions may curtail a person’s liberty;
affect their freedom of movement;
damage their reputation; or
have a significant effect on their economic well-being.
15.7 The Law Council of Australia explained that procedural fairness will
promote better decision-making in government because the decision-maker will have before him or her all the relevant information required. The procedural rigour required in a hearing and the injunction to behave impartially is likely to make a decision-maker more conscientious and objective in reaching his or her conclusions.
15.8 One of the key features of procedural fairness is that ‘in origin it is a common law doctrine or obligation … the requirements of natural justice are fashioned by courts, and are read into or attached to statutory powers so as to ensure procedural fairness in the administration of statutes’. While procedural fairness is protected at common law, statute also provides some protection for individuals. For instance, a breach of the rules of natural justice is a ground for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). This Act does not impose a duty to afford procedural fairness.
15.9 Procedural fairness usually involves two requirements: the fair hearing rule and the rule against bias.
15.10 The hearing rule requires a decision-maker to inform a person of the case against them, provide them with an opportunity to be heard, and prior notice of a decision that adversely affects their interests. In Commissioner of Police v Tanos, Dixon CJ and Webb J stated that
it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by a judicial or quasi-judicial proceeding he must be afforded an adequate opportunity to be heard.
15.11 The content of the hearing rule in relation to procedural fairness varies across the spectrum of administrative decision-making, depending on the circumstances of a particular case.
15.12 Taking into account this caveat, the minimum required for a fair hearing in administrative law involves the following;
notice that a decision adversely affecting a person’s interests will be made;
disclosure of evidence relied on when determining the adverse decision;
a substantive hearing—oral or written—with a reasonable opportunity to present a case in response to an adverse decision; and
in some circumstances, access to legal representation.
15.13 On the last point, any right to access legal representation will depend on whether an oral or written hearing is provided. At common law, a person is entitled to be represented by an agent, or lawyer, in an oral hearing before a statutory body. Whether legal representation must be provided to a person whose rights, interests or legitimate expectations are adversely affected in administrative decision-making will depend on the empowering Act of the appropriate statutory body. In some cases legal representation may not be required and may even be contrary to the informal or inquisitorial setting of a tribunal.
15.14 The bias rule of procedural fairness requires that a decision-maker must not be biased or be seen by an informed observer to be biased in any way—apprehended or ostensible bias.
15.15 When a court considers whether a decision-maker had a duty to afford procedural fairness, it will, generally speaking, consider the following questions.
15.16 First, the implication question: is there an implied duty to accord procedural fairness? In the absence of a clear legislative intention to exclude procedural fairness, courts may imply procedural fairness to ensure that ‘the justice of the common law will supply the omission of the legislature’.
15.17 In Kioa v West, Deane J explained that where an individual has been denied procedural fairness, they can
demand the observance of the ordinary restraints which control the exercise of administrative power including, unless they be excluded by reason of statutory provision, or the special nature of the case, the standards of procedural fairness which are recognised as fundamental by the common law.
15.18 The exclusion question is also considered at this stage: has the legislature shown an intention to exclude the obligation to observe the requirements of procedural fairness? Procedural fairness cannot be implied where a law expressly excludes it. Related to this question is the principle of duality in decision-making. That is, where a decision-making process involves different steps or stages before a final decision is made, the requirements of procedural fairness are satisfied if the decision-making process, viewed in its entirety, entails procedural fairness. Displacement of procedural fairness may occur where provision has been made for a certain type of hearing or procedure to take place, for example, where legislation provides for a hearing at one stage of a decision-making process but not at another. 
15.19 Second, the content question: what kind of hearing is the decision-maker required to provide to the applicant?The content rule will vary depending on the circumstances of a particular case and the statutory context in which it arises.
15.20 The rule against bias and the hearing rule in their contemporary form are drawn from natural law. Natural law developed through the work of the medieval philosopher and theologian, Thomas Aquinas. French CJ explained:
As a normative marker for decision-making it [the rule against bias] predates by millennia the common law of England and its voyage to Australian colonies.
15.21 Procedural fairness may not necessarily be implied in relation to decisions made under delegated legislation, or when the decision was one characterised by general policy decision-making.
15.22 Procedural fairness developed through the common law in the early 17th century. Historically, procedural fairness only applied to decisions by courts or bodies that had a duty to act judicially. The scope of procedural fairness was extended in the mid-19th century to all ‘quasi-judicial’ decisions in Cooper v Board of Works for the Wandsworth District.
15.23 In Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (Lam), Callinan J explained that ‘natural justice by giving a right to be heard has long been the law of many civilised societies’:
That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’s Medea, enshrined in the scriptures, mentioned by St Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden.
15.24 Over the course of the 20th century, the concept of procedural fairness developed significantly, eventually applying to a diverse range of government decisions affecting property, employment, reputation, immigration and financial and commercial interests. In Annetts v McCann, a case involving the right of two parents to make submissions at a coronial inquiry into the deaths of their two sons, Mason CJ, Deane and McHugh JJ explained the recent evolution of the concept of procedural fairness. The judges noted that
many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine’s protection.
15.25 Stakeholders to this Inquiry highlighted the importance of procedural fairness in promoting accountability and transparency in government decision-making processes. For instance, the UNSW Law Society submitted that
The broad purpose of administrative law is to safeguard the rights and interests of people in their dealings with the government and its agencies. It confers a right to challenge a government decision by which a person feels aggrieved through independent adjudication to contribute to a greater measure of justice in administrative decision-making. This ensures that the Executive does not act arbitrarily, while promoting the observance of public law values of accountability, legality and transparency.
15.26 In extra-curial commentary, Chief Justice Robert French AC has said that procedural fairness is ‘indispensable to justice’, and highlighted five inter-related rationales for the duty to afford procedural fairness:
that it is instrumental, that is to say, an aid to good decision-making;
that it supports the rule of law by promoting public confidence in official decision-making;
that it has a rhetorical or libertarian justification as a first principle of justice, a principle of constitutionalism;
that it gives due respect to the dignity of individuals; and
by way of participatory or republican rationale—it is democracy’s guarantee of the opportunity for all to play their part in the political process.
15.27 There are several principles which are said to guide administrative decision-making including rationality in decision-making, reasonableness and practical justice. In relation to the last of these principles, Gleeson CJ in Lam emphasised that ‘fairness is not an abstract concept’ and that the ‘concern of the law is to avoid practical injustice’.
15.28 The ALRC has taken these, and other, common law principles into account when identifying Commonwealth laws that may deny procedural fairness.
Kioa v West (1985) 159 CLR 550. See also David Clark, Introduction to Australian Public Law (Lexis Nexis Butterworths, 4th ed, 2013) [12.34]. The common law doctrine has a ‘wide application and is presumed by the courts to apply to the exercise of virtually all statutory powers’: Matthew Groves, ‘Exclusion of the Rules of Natural Justice’ (2013) 39 Monash University Law Review 285, 285.
Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. There is also an exclusionary aspect to this concept of implication so that clear and unambiguous statutory language can exclude the common law duty to afford procedural fairness.
The common law duty to afford procedural fairness is also raised by Ch III courts in the context of due process and open justice considerations in criminal law. See, for example, the High Court case of Pompano where the High Court ruled on the validity of closed hearing provisions of the Criminal Organisation Act 2009 (Cth): Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38. This is discussed in more detail in Ch 10 on the right to a Fair Trial.
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, . (References omitted).
Kioa v West (1985) 159 CLR 550, 582 (Mason J). Justice Mason’s approach to natural justice in Kioa is at odds with that of Brennan J in Kioa who reasoned that ‘there is no free-standing common law right to be accorded natural justice by the repository of a statutory power’: 610.
Plaintiff S10/2011 (2012) 246 CLR 636,  (Gummow, Hayne, Crennan and Bell JJ).
Procedural fairness overlaps with some principles associated with the right to fair trial and judicial review, discussed in Chs 10 and 18.
Law Council of Australia, Submission 75.
Robin Creyke, John McMillan and Mark Smyth, Control of Government Action: Text, Cases and Commentary (Lexis Nexis Butterworths, 3rd ed, 2012) [10.1.5].
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 1(a).
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 489 (Gleeson CJ).
Commissioner of Police v Tanos (1985) 98 CLR 383, 395. ‘The fundamental rule is that a statutory authority having power to effect the rights of a person is bound to hear him before exercising the power’: Kioa v West (1985) 159 CLR 550, 563 (Gibbs CJ) quoting Mason J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 360.
Kioa v West (1985) 159 CLR 550, 584 (Mason J).
The rules of evidence will differ depending on the procedures of the relevant tribunal or body.
There is no right to an oral hearing, unless specified in the empowering Act of the relevant statutory body. For instance, in Chen v Minister for Immigration and Ethnic Affairs, it was held that there is no requirement of an oral hearing in a person’s refugee assessment: Chen v Minister for Immigration and Ethnic Affairs (1993) 45 FCR 591.
Margaret Allars, Introduction to Australian Administrative Law (Butterworths, 1990) [6.60].
R v Board of Appeal; Ex parte Kay (1916) 22 CLR 183. It is, however, important to note that a person affected by the administrative decision of a statutory body does not have a right to legal representation at government expense: New South Wales v Canellis (1994) 181 CLR 309, 328–9.
Cooper v Board of Works for the Wandsworth District  143 ER 414 Court of Common Pleas (1863) 180 (Byles J).
Kioa v West (1985) 159 CLR 550, 631.
Plaintiff S10/2011 (2012) 246 CLR 636, .
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564,  (Mason CJ, Dawson and Toohey JJ). See also South Australia v O’Shea (1987) 163 CLR 378. Procedural fairness may not necessarily be implied in relation to decisions made under delegated legislation; for more, see: Groves, above n 1, 314.
Allars, above n 16, [6.23].
Creyke, McMillan and Smyth, above n 9, [10.1.12].
Ridge v Baldwin  AC 40 65, 72 (Lord Reid); Kioa v West (1985) 159 CLR 550, 584 (Mason J). The ‘particular requirements of compliance with the rules of natural justice will depend on the circumstances’: Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, .
Chief Justice Robert S French, ‘Procedural Fairness – Indispensable to Justice?’ (2010). The hearing rule appeared in cases in the medieval Year Books: HH Marshall, Natural Justice (Sweet & Maxwell, 1959) 18–19.
French, above n 25.
Creyke, McMillan and Smyth, above n 9, [10.1.9]; French, above n 25, 3.
Cooper v Board of Works for the Wandsworth District  143 ER 414 Court of Common Pleas (1863). The court in this case extended natural justice to decisions interfering with property rights.
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, . Callinan J was quoting Stanley de Smith, Harry Woolf and Jeffrey Jowell, Judicial Review of Administrative Action (Sweet & Maxwell, 5th ed, 1995) 378–79.
Creyke, McMillan and Smyth, above n 9, [10.1.9].
Annetts v McCann (1990) 170 CLR 596, 599.
Law Council of Australia, Submission 75; Law Society of NSW Young Lawyers, Submission 69; ANU Migration Law Program, Submission 59; Institute of Public Affairs, Submission 49; Australian Lawyers for Human Rights, Submission 43; Refugee Council of Australia, Submission 41; 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.
UNSW Law Society, Submission 19.
Chief Justice Robert S French, ‘Procedural Fairness—Indispensable to Justice?’ (2010).
See for example, Deane J’s discussion in Australian Broadcasting Tribunal v Bond¸ where he explains the connection between these principles and natural justice. Deane J stated that ‘If a statutory tribunal is required to act judicially, it must act rationally and reasonably’: Australian Broadcasting Tribunal v Bond (1990) 176 CLR 321, 367.
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, . The concept of ‘practical injustice’ also arises in criminal law. For a more detailed discussion of ‘practical justice’, see Ch 10.