Procedural fairness in application cases: Is compellability of consideration a critical safeguard?

Abstract

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 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.