Justifications for laws that deny procedural fairness

14.33  Some have argued that no justification exists for excluding procedural fairness, given the scope that exists for flexibility in its content. For example, the Administrative Review Council has said that that ‘procedural fairness should be an element in government decision making in all contexts, accepting that what is fair will vary with the circumstances’.^[58]

Proportionality

14.34  Some stakeholders favoured the adoption of a proportionality test to determine if a law that excludes procedural fairness is justified.^[59] The UNSW Law Society argued that applying a proportionality test to laws that exclude 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.^[60]

Urgency

14.35  It may be justified to exclude procedural fairness where urgent decisions need to be made to prevent a pressing or serious harm. However, a distinction has been drawn between a statutory power which is, by its nature, inconsistent with an obligation to afford procedural fairness, and a power that may sometimes need to be exercised in urgent situations.^[61] An example of the former might include a power to forcibly enter premises in case of fire or natural disaster.^[62] In the latter case, it may not be justified to statutorily exclude procedural fairness. Instead, it may be more appropriate that procedural fairness be excluded only where urgency is established, or that the content of procedural fairness be limited in urgent circumstances.^[63]

14.36  A related justification that is sometimes made for excluding procedural fairness is the need to reduce delay by streamlining administrative processes.^[64] However, some have argued that the aim of quick decision making should not justify a denial of procedural fairness. For example, the ANU Migration Law Program argued, in the context of migration law, that ‘the erosion of procedural fairness obligations should not be justified on the basis of efficiency or expediency in decision-making’.^[65]