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Western Australian Student Law Review |
PROCEDURAL FAIRNESS, CODIFICATION AND THE PROBLEM OF SPECIFICITY
HENRY COONEY[*]
PROCEDURAL FAIRNESS—CODIFICATION—THE RULE AGAINST BIAS—THE FAIR HEARING RULE—SPECIFIC CODIFICATION—UNIVERSAL CODIFICATION—SUPER-CODIFICATION—SPECIFICITY
ABSTRACT
The increased attention to the operation of migration law within Australia over the last two decades has thrown the doctrine of procedural fairness into the spotlight. Accompanying this increased attention have been sporadic calls to change or codify those rules of procedural fairness. This article seeks to demonstrate that calls to codify rules of procedural fairness are misplaced. While both general and specific forms of codification can be imagined, this article addresses both broad forms and concludes that, due to the inherent flexible nature of the rules of procedural fairness, such rules should remain firmly within the domain of the common law. This assessment is made with a close focus upon the supposed benefits that codified procedural fairness would entail. A particular focus is given to the ‘problem of specificity’—a problem that, as will be explored, appears insurmountable.
I INTRODUCTION
Procedural fairness, in its many forms, has guided the use of executive power since its discovery as inferred from the Magna Carta.[1] This paper assesses whether the rules that make up procedural fairness should be codified. This assessment is made with a close focus upon various types of codification that are relevant to this question. Broadly, these types of codification can be grouped within the categories of ‘universal’ or ‘specific’ codification, and both of these broad categories are assessed within this article. In Part II, this article examines the rules of procedural fairness in order to give context to the discussion that follows. Part III considers justifications for codification and explores the notion of a singular, universal statutory framework for the rules of procedural fairness. Part IV presents a detailed analysis of the possibility of codifying specific procedural fairness rules that relate to individual administrative powers. This type of codification is referred to as ‘specific’ codification, and it is assessed with a close focus upon attempts to codify the rules of procedural fairness within the Migration Act 1958 (Cth) (‘Migration Act’).[2] These attempts are of particular relevance to this article, as migration decisions are frequently the subject of judicial review on procedural fairness grounds (and those review proceedings provide an insight into the operation of codified procedural fairness rules). This article concludes that, for a variety of reasons, both specific and universal codification should be rejected.
II PROCEDURAL FAIRNESS
Conventionally, procedural fairness has two distinct requirements.[3] The first requirement is known as the fair hearing rule and the second requirement is known as the rule against bias. The focus of this article is not a detailed analysis of those rules, and the ‘threshold’[4] question in relation to procedural fairness is also not relevant to this article. However, in order to provide context, it is necessary to briefly outline the rules of procedural fairness.
A The Fair Hearing Rule
Broadly, the fair hearing rule requires a decision-maker to allow a person affected by a decision an opportunity to be heard.[5] The decision-maker must ‘hear him before exercising the power’.[6] The fair hearing rule has distinct sub-requirements[7] and a brief discussion of these requirements is necessary to explain the inherently flexible nature of this aspect of procedural fairness. This flexible nature will become relevant in Parts III and IV of this article, as the nature of codification is examined.
1 The Provision of Notice
A decision maker’s ‘cardinal’[8] obligation under the fair hearing rule is to provide the subject of their decision with prior notice of the decision‑maker’s intent to make a decision.[9] While such an obligation does not appear to involve any significant discretion on its face, in practice the required content of such notice is essentially fact-specific.[10] Notice of decisions which are likely to affect an individual’s ‘livelihood or liberty‘[11] will require a corresponding level of particularity,[12] while the opposite is true of minor or procedural decisions. In addition, the amount of notice required to be given (in a temporal sense) is equally dependent upon circumstance—relevant factors include the subject matter of the decision[13] and the amount of time that would be taken to ‘consider the allegations ... and, if necessary, to obtain material to rebut them’.[14]
2 Disclosure of Information
Similarly inexact is a decision‑maker’s obligation to disclose the substance of the information upon which their decision will be made. Generally, a decision maker has an obligation to disclose any adverse information that is ‘credible, relevant and significant’[15] to the making of their decision.[16] However, this requirement to disclose is not absolute,[17] and, given a decision maker is not bound to disclose their evaluation of such information,[18] the level of any disclosure required (and the usefulness of the disclosure to the subject) will depend significantly upon the subject and type of information being disclosed.
3 The Opportunity to Comment
A decision maker must also provide the subject of their decision the opportunity to comment and to present their case.[19] One would be forgiven for assuming that a requirement as simple as ‘the opportunity to comment’ would lend itself to a precise or strict application to facts. Such an assumption would be inaccurate—the reality of this requirement is that its content is inexact. The hearing (in which the subject may comment) does not always need to be conducted by the decision‑maker.[20] The hearing does not need to be, necessarily, conducted in person.[21] In relation to sensitive matters, the hearing may be given in restricted circumstances.[22] In some cases, the subject may be given the right to cross-examine witnesses,[23] but this is, at least as a matter of practice, unusual.
The preceding section should not be taken to be critical of the operation of any of the rules of procedural fairness. Nor is it the position of this article that the fair hearing rule does any injustice to the parties to a decision. The above has served only to highlight the inherent flexibility of the fair hearing rule—flexibility that is shared equally by the rule against bias. The argument advanced in Part IV of this article will rely upon this inherent flexibility in rejecting the idea that such rules could be codified.
B The No-Bias Rule
The second ‘pillar’[24] of procedural fairness is the rule against bias. Sir Coke’s famous nemo judex in causa sua—’no man may be a judge in his own case’[25]—has evolved into a rule prohibiting ‘actual’ and ‘apprehended’ bias in connection with administrative decisions.[26] The circumstances in which bias arises and the impartiality required to satisfy this rule are beyond the focus of this article. It will suffice at this stage to note that while actual bias is a question of fact,[27] the test for apprehended bias involves one of the quintessential features of the common law: a test based in legal fiction.[28] As the English Court of Appeal said:
[A court must] first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased ... then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger ... that the tribunal was biased.[29]
This test has been adopted in Australia—as the High Court said in Ebner v Official Trustee in Bankruptcy:
... in the absence of any suggestion of actual bias ... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[30]
While a more detailed examination of the rule against bias is not necessary for our purposes, the nature of the test for bias will remain relevant throughout this article.
III CODIFICATION
This part of the article has two goals. In section A, the article seeks to explore the arguments surrounding calls to codify the rules of procedural fairness. In section B, the article seeks to show that a certain type of codification—referred to here as ‘universal codification’—is destined to fail from the outset. Broadly, two types of procedural fairness codification can be envisaged. The first, which would involve bringing ‘together the relevant rules into one place,’[31] is what the author will call ‘universal’ codification. Such codification would establish a unified statutory guide to the requirements of procedural fairness for administrative decision-makers at either the Commonwealth or State level. The other type of codification is what will be referred to as ‘specific’ codification. This refers to codification of the precise requirements of procedural fairness in provisions within a statute conferring administrative power. Specific codification will be the focus of Part IV of this article; only universal codification is considered in this part. Before considering the notion of universal codification, however, it is worth examining arguments in favour of codifying the rules of procedural fairness.
A Why Codify?
The motivations for codification of the rules of procedural fairness are of vital importance to the question of codification. If a scheme of codification would in all events fail to confer the benefits supposed, the question of codification is, at best, a moot one. Determining whether the rules of procedural fairness should be codified is therefore ultimately an exercise in consequentialism: what must be examined is the effect that codification would have.
It is not hard to understand why one might argue the rules of procedural fairness should be codified. Increased clarity and simplicity and, indirectly, decision making that is less likely to involve breaches of procedural fairness are all possible consequences of codification.[32] These consequences, if realised, would present a convincing motivation for codifying the rules of procedural fairness. Procedural fairness is a creature of the common law yet administrative decision makers are typically not lawyers or legally trained[33] and, in any event, the law surrounding procedural fairness is continually evolving.[34] As a result, there is a ‘widening gap in understanding between the rule makers and those obliged to comply with them’.[35] Given that one motivation behind procedural fairness is the promotion of proper decision making,[36] this problem threatens to undermine procedural fairness. Why should the common law refine the rules of procedural fairness if such refinement leads to the alienation of decision-makers from the rules that they are bound by? Codifying the rules of procedural fairness might avoid this issue by ensuring that decision-makers, be them legally trained or not, can follow the rules of procedural fairness with ease.
It might also be argued that the codification of procedural fairness requirements can allow for the rules of procedural fairness to be tailored to the requirements of legislative purpose or factual circumstance. Some administrative powers have a wide application to a variety of different scenarios—take, for example, the power of a Commonwealth employer to dismiss an employee. In occasional cases of extreme employee misconduct, it might be necessary to curtail the provision of procedural fairness to allow the employer to act immediately. Codifying the rules of procedural fairness could involve the legislature expressly recognising this necessity by allowing for varied (or even suspended) rules of procedural fairness in those circumstances. This need for flexibility has been the apparent rationale behind some existing codification attempts in relation to Commonwealth law.[37] However, the extent to which this is a genuine benefit of codification is unclear.
As noted above, it is well established that both the fair hearing rule and the rule against bias have a flexible application.[38]The fair hearing rule requires no more ‘than is reasonable in the circumstances’,[39] and the standard of impartiality required by the rule against bias is flexible.[40] In this respect, one could argue that the requirements of procedural fairness are tailored on a case-by-case basis, at least insofar as they can be modified to fit a given scenario without losing their inherent focus on justice and fairness.[41] Indeed, any statutory ‘tailoring’ of the requirements that goes beyond common law modifications might be argued to be an exclusion of procedural fairness. In any event, the following analysis assumes that this purported benefit is genuine.
B Universal Codification—One Statute to Rule Them All?
The nature of procedural fairness appears to dictate that universal codification would fail to achieve any of the above benefits and, indeed, might fail to have any meaningful effect whatsoever. Intuitively, there are two ways in which a statute could set out rules of procedural fairness in a universal fashion; either the statute could set out differing requirements of procedural fairness for various administrative powers, or the statute could provide for one set of procedural fairness rules for all administrative decision-making. The former of these is, in truth, just a form of specific codification—if individual sets of rules are devised for various administrative powers, the location of those rules hardly changes their nature. As such, this type of codification will be dealt with in Part IV. This part of the article deals with the latter of these types.
It is immediately apparent that any codification of procedural fairness rules that would apply ‘across the board’ would not allow for rules tailored to specific circumstances. This is necessarily the case—if migration visa assessors, the Federal police, and Commonwealth administrative tribunals are all bound by the same rules of procedural fairness, the rules would have to be formulated at a high level of abstraction and generality. It is therefore difficult to see how such a proposal could help tailor the rules of procedural fairness to unique factual scenarios.
More importantly, it is not clear whether the main benefit of codification—that of increased clarity and ease of understanding—could be achieved by way of universal codification. Abstract requirements intended to apply to all administrative bodies would be, logically, likely to fall back upon considerations of reasonableness—for example, a ‘decision maker must provide as much notice as is reasonable’.[42] Without such broad descriptions, it is hard to conceive of a way in which rules appropriate to all administrative decision makers could be formulated.
Even if one accepts that the rules of procedural fairness could be formulated in a clear and simple manner, the question becomes whether such formulations would operate concurrently with the common law rules of procedural fairness. If the codified rules were to operate concurrently, it is difficult to see how the resulting framework of rules would result in anything other than reduced clarity.[43] Thus, any universal framework of procedural fairness rules must displace the common law requirements of procedural fairness. Such displacement is itself problematic. As is examined in Part IV of this article, it is not entirely clear that it is possible to exclude the common law requirements of procedural fairness by way of legislative provisions formulated at a general level. In relation to Migration Act provisions attempting to do exactly this, it has been suggested that High Court decisions have signalled ‘the beginning of the end for any hope’ that procedural fairness requirements could be replaced by general statutory requirements.[44] These decisions did not involve ‘universal’ codification—they involved ‘specific’ codification—but the decisions remain relevant given there has been no attempt at universal codification in Australia. There are examples of decisions in which general requirements of procedural fairness (for example, the procedural requirement of acting in a way that is ‘fair and just’)[45] have been used to ‘re-import the general law content of natural justice’.[46] Subsequent decisions have moved away from such re-importation,[47] however, the precise boundaries of this problem remain uncertain—particularly given the fact that any broad adjectives used in such codification might rely on the courts for their content. In the event that the codified procedural fairness rules do rely on the courts for their content, it is difficult to see what benefit the codified rules would have over their common law alternatives. In the absence of such benefit, the justification for such codification disappears.
IV SPECIFIC CODIFICATION
A Specificity
The problem, as Jones put it, is specificity.[48] There are two broad ways in which the specific codification of the rules of procedural fairness could occur. First, a statute conferring administrative power could codify existing common law procedural fairness requirements (for example, the decision maker must ‘provide a fair hearing’). This might be called ‘reflective specific codification’, as the statutory requirements would simply reflect those at common law. Alternatively, a statute conferring administrative power could formulate its own exclusive procedural fairness rules, divorced from those at common law. The former of these alternatives—reflective specific codification—does not lend itself to critical analysis. While possible, the only benefit of such codification would be a more accessible location (from the point of view of non-legally trained decision makers) of the common law rules. This can be achieved without statutory codification. For this reason, it is the latter type, which this article will refer to as ‘super-codification’, that will form the focus of the remainder of this article.
B Super-Codification
Super-codification does not carry with it the problems described in Part III of this article in relation to general statutory requirements of procedural fairness. It is established that the legislature may provide for specific rules of procedural fairness that exclude the requirements of procedural fairness at common law.[49] Intuitively, one would think super-codification could be done in a way that provides an easy-to-understand set of rules of procedural fairness. One can quickly point to examples of Australian statutes that express complicated legal concepts in a clear, concise and user-friendly manner.[50] However, as the following discussion will show, this benefit has not been realised in respect of procedural fairness in Australia. Even though super-codification has the potential to be accompanied by increased clarity, this increased clarity does not come without a cost—a cost no more apparent than in relation to attempts to codify procedural fairness within the Migration Act.
It is useful to examine the effects that codification of procedural fairness rules has had in Australia. Beginning in the early 2000’s, attempts at codification of procedural fairness in the Migration Act have ‘narrowed the scope of [the procedural fairness] ground of review‘.[51] Perhaps recognising the value of simplicity, these codified requirements have been ‘more limited than those ... the courts would otherwise imply’.[52] Any apparent goal of simplicity has not been achieved. Attempts at super-codification of procedural fairness in the Migration Act have caused ‘enormous interpretative difficulties’,[53] ‘a degree of confusion’,[54] and have meant that various tribunals ‘could not implement the legislative code with any certainty’.[55]
Not only have such attempts caused issues of practical uncertainty, they also appear to have caused genuine doctrinal uncertainty. The Federal Court has seesawed between approaches to attempted super-codification in relation to the Migration Act. Many decisions initially adopted the ‘whole division approach,’[56] in which an intent to extinguish the common law procedural fairness requirements was read into codifying provisions.[57] Other decisions adopted an approach focused upon individual sections,[58] while later decisions adopted the ‘exact text approach’[59]—an approach diametrically opposed to the ‘whole division approach’. This ‘exact text approach’ appears to involve the court attempting to actively minimise any exclusion of procedural fairness rules.[60] This result has meant that the precise procedural fairness obligations of a decision-maker are not ascertainable simply by reference to the relevant statute.
Furthermore, this super-codification has had a negative impact upon individual justice and fairness. As was mentioned earlier in this article, abstract formulations of procedural fairness are apt to confuse non-legally trained officials. However, attempting to avoid this level of abstraction with super-codification leads to rules of procedural fairness that lack flexibility and this, in turn, appears to sacrifice justice at an individual level. In 2011, the Migration Review Tribunal and Refugee Review Tribunal said, in relation to super-codification of the fair hearing rule, that ‘[the codified rule] in many cases, does not enhance justice to the individual one iota’.[61] Similarly powerful comments were made by Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs.[62] He said:
The problems that have arisen stem directly from the attempt to codify, and prescribe exhaustively, the requirements of natural justice, without having given adequate attention to the need to maintain some flexibility in this area ... As is demonstrated by the outcome of at least some of these appeals, codification in this area can lead to complexity, and a degree of confusion, resulting in unnecessary and unwarranted delay and expense.[63]
Weinberg J’s comments reflect the self-defeating nature of super-codification—in order to avoid rules that reduce procedural fairness, the rules must be formulated in a general way. But formulating the rules in a general way denies codification its chief benefits of simplicity, transparency and ease-of-understanding.
C Procedural Fairness and Good Government
It is worth finally and briefly considering normative and policy-based considerations, insofar as they relate to the rejection of procedural fairness by way of explicit statutory displacement. It is conceivable that for certain administrative powers (for example, those that could impact upon national security), the legislature may wish to exclude all aspects of procedural fairness. This could be considered super-codification (or, more accurately, codifying an entire negation of the rules of procedural fairness).
Despite some indication that displacement of judicial review grounds generally could raise constitutional issues,[64] the notion that expressly removing the requirements of procedural fairness is unconstitutional is not presently accepted in Australia. Furthermore, this article does not argue that such codification is otherwise theoretically legally impossible. However, one should not confuse a ‘can’ with a ‘should’. Callinan J once said that procedural fairness is ‘the law of many civilised societies’.[65] It is not difficult to see why. The rules of procedural fairness have a fundamental philosophical,[66] practical,[67] and normative[68] basis. Rules of procedural fairness encourage good governance and promote effective and fair uses of administrative power.[69] The aspirational notion of good government militates strongly against any proposal to codify an express rejection of the rules of procedural fairness. Above all else, the rules of procedural fairness ensure that those subject to administrative decisions are treated fairly. In this regard, it is worth ending with a passage from a judgment of Sir Robert Megarry, sitting as a judge on the British High Court:
It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained ... Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.[70]
It is within the topic of procedural fairness that the wisdom of the common law is at its most undeniable. One hopes that procedural fairness is here to stay.
V CONCLUSION
This article has provided an assessment of the various forms that codification of the rules of procedural fairness could take. The inexorable conclusion of that assessment is that there is no form of codification that can both preserve the inherent focus of procedural fairness and also deliver the benefits that proponents of codification envisage. There are both practical and doctrinal considerations that support the conclusion that the rules of procedural fairness should remain, substantively, rules of the common law. Universal codification is destined to fail from the outset. Specific codification of the mere existence of the rules of procedural fairness is without purpose. Finally, specific, substitutionary codification is fatally challenged by the problem of specificity. To put it simply, the forms of codification considered in this article raise more questions than they answer. One cannot help but recall the words of the eclectic Victor Cousin, when he said ‘the universal and absolute law is that natural justice which cannot be written down’.[71] That 19th century wisdom remains true to this day.
[*] BA, Juris Doctor candidate at the University of Western Australia, Nedlands. I am indebted to Julie Falck for her helpful comments on an earlier version of this article. Any errors are my own.
[1] Chief Justice Robert French, ‘Procedural Fairness — Indispensable to Justice?’ (Speech, The University of Melbourne Law School, 7 October 2010) 4. In Australia, the present view is that procedural fairness is a common law duty implied as a matter of construction. See, eg, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ).
[2] Migration Act 1958 (Cth) (‘Migration Act’).
[3] Grant Hooper, ‘Parliament v The High Court? Natural justice, codification and the Australian Migration Act’ (PhD Thesis, University of New South Wales, 2016) 111; Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 666 (Gummow J); Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters Australia, 5th ed, 2013) 398‑–9.
[4] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582–4 (Mason J). The threshold question is an integral part of the law of procedural fairness as it determines whether and when the rules of procedural fairness will apply.
[5] Kioa v West (n 4) 563 (Gibbs CJ); Aronson and Groves (n 3) 398–9.
[6] Kioa v West (n 4) 563 (Gibbs CJ).
[7] Aronson and Groves (n 3) 517; Andrews v Mitchell [1904] UKLawRpAC 28; [1905] AC 78, 80 (Lord Halsbury).
[8] R v Small Claims Tribunal; Ex parte Cameron [1976] VicRp 41; [1976] VR 427, 432 (Anderson J).
[9] Matthew Groves, ‘Exclusion of the Rules of Natural Justice’ [2013] MonashULawRw 11; (2013) 39(2) Monash University Law Review 285, 294.
[10] See, eg, Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 474–7 (Latham CJ).
[11] Creyke et al, Control of Government Action (LexisNexis Butterworths Australia, 5th ed, 2019) 718.
[12] Ibid 718. See also, generally, Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; (2014) 314 ALR 130 and Seiffert v Prisoners Review Board [2011] WASCA 148.
[13] See, eg, Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807, in which it was held that 14 days’ worth of notice of an intention to cancel a visa was inadequate.
[14] Answell v Wells [1982] FCA 186; (1982) 43 ALR 41, 62 (Lockhart J).
[15] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, 95–7 [16]–[18] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
[16] Ibid.
[17] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180, 207 [83]–[84] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
[18] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, 165–6 [47] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
[19] John McMillan, ‘Natural Justice – Too Much, Too Little or Just Right?’ (2007) 58 Australian Institute of Administrative Law Forum 32, 32.
[20] FAI Insurances Ltd v Winneke [1934] ArgusLawRp 109; (1982) 41 ALR 1, 58 (Brennan J).
[21] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 336 [33] (Kiefel, Bell and Keane J).
[22] See, eg, Applicants M16 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1641; (2005) 148 FCR 46, in which a female applicant was, for cultural reasons, heard in the presence of women only.
[23] Hurt v Rossall [1982] FCA 188; (1982) 43 ALR 252, 258 (Fox J).
[24] Bread Manufacturers (NSW) v Evans [1981] HCA 69; (1981) 180 CLR 404, 433 (Mason and Wilson JJ).
[25] John Frank, ‘Disqualification of Judges’ (1947) 56(4) Yale Law Journal 605, 610.
[26] Matthew Groves, ‘The Rule Against Bias’ (2009) 1 Monash University Law Research Series 10, 15–6.
[27] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 519–20 [35]–[36], 531–2 [72] (Gleeson CJ and Gummow J).
[28] Groves, ‘The Rule Against Bias’ (n 26) 11.
[29] Re Medicaments and Related Classes of Goods (No 2) [2002] 1 WLR 700, 726–7 (Lord Phillips MR).
[30] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 (Gleeson CJ, McHugh, Gummow and Hayne J).
[31] Chris Wheeler, ‘Judicial Review of Administrative Action: An Administrative Decision-Maker’s Perspective’ [2017] AIAdminLawF 7; (2017) 87 Australian Institute of Administrative Law Forum 79, 89.
[32] Ibid 88–9; Hooper (n 3) 37; M R Topping and J P M Vandenlinden, ‘Ibi Renascit Jus Commune’ (1970) 33 Modern Law Review 170, 171–4; Explanatory Memorandum, Migration Reform Bill 1992 (Cth) 2.
[33] Wheeler (n 31) 79–80, 88.
[34] Timothy H Jones, ‘Judicial review and codification’ (2000) 20(4) Legal Studies 517, 533.
[35] Wheeler (n 31) 79.
[36] French, ‘Procedural Fairness - Indispensable to Justice’ (n 1) 1–2; Chief Justice Robert French, ‘Administrative Law in Australia: Themes and Values Revisited’ in Matthew Groves (ed) Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 25, 47.
[37] Replacement Explanatory Memorandum, Maritime Powers Bill 2012 (Cth) 62.
[38] Kristina Stern, ‘Procedural Fairness - Its Scope and Practical Application’ [2008] AIAdminLawF 2; (2008) 56 Australian Institute of Administrative Law Forum 2, 8; Bruce Dyer, ‘Determining the Content of Procedural Fairness’ [1993] MonashULawRw 7; (1993) 19(1) Monash University Law Review 165, 165.
[39] CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514, 622 [367] (Gageler J).
[40] Minister for Immigration and Multicultural Affairs v Jia Legeng (n 27), 539 [102] (Gleeson CJ and Gummow J).
[41] John McMillan (n 19) 33.
[42] CPCF (n 39) [367] (Gageler J).
[43] Jones (n 34) 533.
[44] Hooper (n 3) 111, 345. See also Minister for Immigration and Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448. See too Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489.
[45] Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498 [31] (Logan J).
[46] John Carroll and Rebecca Heath, ‘Minister for Immigration & Citizenship v Li’ (2012) 19 Australian Journal of Administrative Law 184, 187.
[47] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 340 [5] (French CJ), 361 [58] (Hayne, Kiefel and Bell JJ) (‘Li’). See also, generally, Minister for Immigration and Citizenship v Li [2012] FCAFC 74; (2012) 202 FCR 387, which was overruled in Li.
[48] Jones (n 34) 521.
[49] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 667 [98] (Gummow, Hayne, Crennan and Bell JJ).
[50] For a Western Australian example, see the Residential Tenancies Act 1987 (WA).
[51] Emily McDonald and Maria O’Sullivan, ‘Protecting Vulnerable Refugees: Procedural Fairness in the Australian Fast Track Regime’ [2018] UNSWLawJl 34; (2018) 41(3) University of New South Wales Law Journal 1003, 1019.
[52] Maria O’Sullivan, ‘Fairness and Efficiency in the Migration “Fast Track” Process’, Australian Public Law (Web Page, 14 May 2018) <https://auspublaw.org/2018/05/fairness-and-efficiency-in-the-migration-fast-track-process/>.
[53] Hooper (n 3) 323.
[54] SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 230 ALR 1, 41 [183] (Weinberg J).
[55] Hooper (n 3) 322.
[56] Ibid 314. See also, eg, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 [66] (Heerey, Conti and Jacobsen JJ).
[57] Hooper (n 3) 314.
[58] Enzo Balperio, ‘What Procedural Fairness Duties Do the Migration Review Tribunal and Refugee Review Tribunal Owe to Visa Applicants’ [2007] AIAdminLawF 20; (2007) 54 Australian Institute of Administrative Law Forum 81, 84. See also, eg, Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 [52]–[65] (Sackville J).
[59] Balperio (n 57) 84; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 [59] (French J).
[60] Hooper (n 3) 314.
[61] Migration Review Tribunal and Refugee Review Tribunal, Submission to Administrative Review Council, Judicial Review in Australia (5 July 2011) 1.
[62] (n 53).
[63] Ibid 41 [183] (Weinberg J).
[64] Jones (n 34) 535.
[65] Re Minister for Immigration and Multicultural Affairs; ex parte Hieu Trung Lam [2010] HCA 19; (2003) 241 CLR 1, 45.
[66] James Edelman, ‘Why do we have rules of procedural fairness?’ (Speech, Supreme Court of Victoria/University of Melbourne Colloquium, 4 September 2015) 3–7.
[67] French, ‘Administrative Law in Australia: Themes and Values Revisited’ (n 36) 47.
[68] French, ‘Procedural Fairness - Indispensable to Justice’ (n 1) 1.
[69] Ibid.
[70] John v Rees [1969] 2 All ER 274, 309.
[71] David Glover, Literature, Immigration, and Diaspora in Fin-de-Siècle England: A Cultural History of the 1905 Aliens Act (Cambridge University Press, 2012) 177.
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