Justifications for encroachments

14.19   In some circumstances ‘urgent action’[22] to prevent a greater harm may be said to justify limits on procedural fairness.[23] For example, a prison warden may place a prisoner in isolation without notice if they suspect the prisoner is planning a riot.[24] In other circumstances, it might be justified to isolate people in quarantine, to avoid the spread of infectious diseases.[25]

14.20   There may also be circumstances where an area of law or policy is overly complex and would be better served by the application of an exhaustive legislative code, rather than common law procedural fairness. While this will be rare, it can arise in planning law where decisions may be overly difficult and involve a range of interested parties.[26]

14.21   Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.[27]

14.22   Although some laws that deny or limit procedural fairness may be justified, the ALRC invites submissions identifying laws that are not justified, and explaining why these laws are not justified.