14.6 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’. He quoted Stanley de Smith, Harry Woolf and Jeffrey Jowell:
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.
14.7 The common law required courts of law to observe the two basic requirements of natural justice: fair hearing and the avoidance of actual or apprehended bias. These rules were extended to administrative tribunals that have a ‘duty to act judicially’ in making decisions affecting vested rights and liberties of persons. Later, judges began to speak of a ‘duty to act fairly’ because the idea of acting judicially was not flexible enough to apply to administrative actions that were not strictly judicial but nevertheless affected vested rights and liberties.
14.8 Procedural fairness traditionally applied to decisions affecting rights and interests related to ‘personal liberty, status, preservation of livelihood and property’. 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.
14.9 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 noted the continued evolution of the concept of procedural fairness. They remarked 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’. It has more recently been said that the common law doctrine has a ‘wide application and is presumed by the courts to apply to the exercise of virtually all statutory powers’.
14.10 There has been some debate as to whether the duty to afford procedural fairness in the exercise of a statutory power derives from the common law or from construction of the relevant statute. In Plaintiff M61/2010E v Commonwealth, the Full Bench of the High Court thought it ‘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’. In 2012, the High Court considered that such a debate was unproductive and proceeded on a false dichotomy. The principles and presumptions of statutory construction are part of the common law, and as such
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.
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, , quoting Stanley de Smith, Harry Woolf and Jeffrey Jowell, Judicial Review of Administrative Action (Sweet & Maxwell, 5th ed, 1995) 378–9. See also Chief Justice Robert French, ‘Procedural Fairness—Indispensable to Justice?’ (Sir Anthony Mason Lecture, University of Melbourne Law School Law Students’ Society, 7 October 2010).
Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law (Penguin Books, 8th ed, 1998) 573.
Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of Administrative Action: Procedural Fairness’ [2.5.170].
Robin Creyke, John McMillan and Mark Smyth, Control of Government Action: Text, Cases and Commentary (Lexis Nexis Butterworths, 3rd ed, 2012) [10.1.9].
Annetts v McCann (1990) 170 CLR 596, 599.
Matthew Groves, ‘Exclusion of the Rules of Natural Justice’ (2013) 39 Monash University Law Review 285, 285.
Cf the judgments of Mason J and Brennan J in Kioa v West (1985) 159 CLR 550. Mason J considered this to be a ‘fundamental rule of the common law doctrine of natural justice’: 582. Brennan J reasoned that ‘there is no free-standing common law right to be accorded natural justice by the repository of a statutory power’: 610. See further Groves, above n 8.
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, .
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636,  (Gummow, Hayne, Crennan and Bell JJ).