14.1     A fair procedure for decision making is an important component of the rule of law. The common law recognises a duty to accord a person procedural fairness—a term often used interchangeably with natural justice—before a decision that affects them is made.[1]

14.2     Procedural fairness promotes sound decision making:

A failure to give a person affected by a decision the right to be heard and to comment on adverse material creates a risk that not all relevant evidence will be before the decision-maker, who may thereby be led into factual or other error. Apparent or apprehended bias is likely to detract from the legitimacy of a decision and so undermine confidence in the administration of the relevant power.[2]

14.3     This chapter considers the duty to afford procedural fairness in administrative decision making. Procedural fairness in judicial proceedings is addressed when considering laws encroaching on the right to a fair trial.

14.4     A number of Commonwealth laws affect the common law duty to afford procedural fairness to persons affected by the exercise of public power. Excluding procedural fairness may be justified in some instances. In particular, it may be justified where urgent action needs to be taken in the public interest.

14.5     Migration laws that encroach on the duty to afford procedural fairness attracted the most comment and criticism in submissions to this Inquiry. Some of these laws would benefit from further review to consider whether the infringement of the duty to afford procedural fairness is proportionate, given the gravity of the consequences for those affected by the relevant decision. Migration laws that might be further scrutinised include those in the Migration Act 1958 (Cth) (Migration Act)relating to:

  • the mandatory cancellation of visas; and

  • the fast track review process for decisions to refuse protection visas.