Procedural fairness in judicial review of migration decisions: The evolution of a fundamental common law principle

Abstract

Procedural fairness has undergone significant evolution from a moral limit on the exercise of power to a fundamental principle of the common law. The thesis explains and reconciles this evolution of procedural fairness in Australia in the context of judicial review of decisions made under the Migration Act 1958 (Cth). By historical analysis of the origins and development of the principles of procedural fairness, the thesis identifies values and concepts underlying those principles. The High Court’s current conception of fairness, as protecting individual rights and interests in the exercise of power, evolved from the idea that there is a morally correct and just way to decide things. The thesis explains how by judicial development the implication of the obligation to observe procedural fairness in Australia, in the context of migration decisions, was shaped and informed, expressly and implicitly, by these values and concepts. The thesis explains the basis for the current restatement of procedural fairness as a fundamental principle of the common law, the relationship between procedural fairness and the principle of legality, and the positioning of procedural fairness as a principle or presumption of statutory construction. The thesis suggests that the explanation rests in legal coherence, in particular defining the obligation to observe procedural fairness in terms of an implied limit on the exercise of statutory power. The thesis also suggests that the dual presumptions created by recognising procedural fairness as a fundamental principle buttressed by the principle of legality, practically deny the exclusion of the principles in all but a limited number of cases.