Procedural fairness in application cases: Is compellability of consideration a critical safeguard?
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Open Access
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ArticleAuthor/s
Hammond, EmilyAbstract
The proposition that governmental actors must extend procedural fairness to applicants for statutory rights, subject only to clear contrary legislation, has become a background assumption of Australian administrative law. However, experience in the migration context highlights a ...
See moreThe proposition that governmental actors must extend procedural fairness to applicants for statutory rights, subject only to clear contrary legislation, has become a background assumption of Australian administrative law. However, experience in the migration context highlights a form of legislation that disrupts the presumptive operation of procedural fairness in application cases – namely, legislation for procedural non-compellability. This article describes how non-compellable powers disrupt the presumptive operation of procedural fairness in application cases. Drawing on this analysis, it proposes that an effective doctrinal response to the phenomenon will require courts to re-engage with the common law foundations for procedural fairness to applicants.
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See moreThe proposition that governmental actors must extend procedural fairness to applicants for statutory rights, subject only to clear contrary legislation, has become a background assumption of Australian administrative law. However, experience in the migration context highlights a form of legislation that disrupts the presumptive operation of procedural fairness in application cases – namely, legislation for procedural non-compellability. This article describes how non-compellable powers disrupt the presumptive operation of procedural fairness in application cases. Drawing on this analysis, it proposes that an effective doctrinal response to the phenomenon will require courts to re-engage with the common law foundations for procedural fairness to applicants.
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Date
2018Source title
Australian Journal of Administrative LawVolume
25Issue
2Publisher
Thomson ReutersLicence
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This article was published by Thomson Reuters and should be cited as Hammond, E. (2018). Procedural fairness in application cases: Is compellability of consideration a critical safeguard? Australian Journal of Administrative Law, 25(2), 122–140. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.auFaculty/School
The University of Sydney Law SchoolShare