Protections from statutory encroachments

Australian Constitution

14.12   The Australian Constitution does not provide express protection for procedural fairness.

14.13   However, at least in respect of judicial functions, s 71 of the Constitution may provide some protection for procedural rights. Section 71 provides:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

14.14   In Re Tracey; Ex parte Ryan (1989), Deane J stated that s 71 is the ‘Constitution’s only general guarantee of due process’.^[13] Similarly in Leeth v Commonwealth (1992),a majority of the High Court stated:

It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power.^[14]

Principle of legality

14.15   The principle of legality provides some protection for procedural fairness.^[15] When interpreting a statute, courts will presume that Parliament did not intend to limit procedural fairness, unless this intention was made unambiguously clear.^[16] In Miah (2001), McHugh J held that the ‘the common law rules of natural justice…are taken to apply to the exercise of public power unless clearly excluded’.^[17]

14.16   In Annetts v McCann (1990), Mason CJ, Deane and McHugh JJ said:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.^[18]

Bills of rights

14.17   In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. The right to procedural fairness for persons affected by the exercise of public power is expressed differently in other jurisdictions. In the United States, persons enjoy a constitutional guarantee of due process in the administration of the law.^[19] In New Zealand, the human rights legislation requires observance of natural justice principles.^[20]

14.18   In Canada, any deprivation of life, liberty and security of the person must be informed by principles of fundamental justice according to the Canadian Charter of Rights and Freedoms.^[21]