14.27 The Australian Constitution does not prevent statutory encroachment upon the duty to afford procedural fairness in administrative decision making. It does not prevent Parliament from modifying, by clear language, the rules of natural justice in their application to non-judicial decisions under Commonwealth law. However, as noted above, denial of procedural fairness in the exercise of a statutory power, where the duty to observe it has not been validly limited or extinguished by statute, will result in a decision made in excess of jurisdiction and attract the issue of prohibition under s 75(v) of the Constitution.
Principle of legality
14.28 The principle of legality provides some protection from statutory encroachment upon the duty to observe procedural fairness. When interpreting a statute, courts will presume that Parliament did not intend to exclude procedural fairness, unless this intention was made unambiguously clear. The High Court has stated that exclusion of the principles of natural justice can only occur by ‘plain words of necessary intendment’. In Saeed, the High Court said that the ‘presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality’.
14.29 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’. However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.
14.30 Article 14.1 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’. The phrase ‘suit at law’ has been taken to include some administrative law matters, and this right extends to all individuals, including non-citizens.
Bills of rights
14.31 In some countries, bills of rights or human rights statutes provide some protection of procedural fairness.
14.32 In the United States, persons enjoy a constitutional guarantee of due process in the administration of the law. In New Zealand, human rights legislation requires any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law to observe natural justice. In Canada, any deprivation of life, liberty and security of the person must be informed by principles of ‘fundamental justice’.
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82. The original jurisdiction vested in the High Court by s 75 of the Constitution cannot be removed by Parliament: Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 36 (Brennan, Deane and Dawson JJ). See also Suri Ratnapala and Jonathan Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012) 196–197. See further Ch 15. For consideration of the constitutional protection of procedural fairness in the judicial process, see Ch 8.
The principle of statutory interpretation known as the ‘principle of legality’ is discussed more generally in Ch 2.
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).
Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252,  (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
Minister for Immigration v B (2004) 219 CLR 365, 425  (Kirby J).
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
United Nations Human Rights Committee, General Comment No 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial 90th Sess, UN Doc CCPR/C/GC/32 (23 August 2007) –.
United States Constitution amend V.
New Zealand Bill of Rights Act 1990 (NZ) s 27(1).
Canada Act 1982 (UK) c 11, Sch B Pt 1 (Canadian Charter of Rights and Freedoms) s 7.