Julian R Murphy: Implying and Excluding the Duty to Act Fairly, Developments in Australia

What do casino licences, prisoner parole and the management of radioactive waste all have in common? Not much, except that they are all areas in which Australian parliaments have sought to limit or exclude a statutory decision-maker’s duty to act fairly by the use of legislative “exclusion provisions”. (I use the term “exclusion provision” to encompass statutory provisions that limit, rather than completely exclude, the duty to act fairly.) These provisions are not unique to Australia. Notwithstanding the relative regularity with which exclusion provisions are enacted, Paul Daly and others have noted that they are rarely successful in their aim of limiting or excluding the duty to act fairly. Instead courts will usually read exclusion provisions narrowly so as to keep the duty largely intact.

A rare exception to this trend is evident in the High Court of Australia’s recent decision in BVD17 v Minister for Immigration and Border Protection. In that case, the Court held that an exclusion provision was successful in limiting the obligations of the relevant statutory body to afford procedural fairness to an applicant for a protection visa. The High Court’s decision deserves close attention both in Australia and abroad. For legislative drafters, the decision provides an example of an effective exclusion provision. For administrative law litigants and their advocates, BDV17 serves as a warning of the potential power of exclusion provisions, but also provides clues as to how the potential injustice of such provisions can be ameliorated by a procedurally-informed conception of legal reasonableness.

The origins of the duty to act fairly and attempts at exclusion

In the common law world, the debate about the origins of the duty to act fairly is well known, and will not be rehearsed in detail here. For present purposes it is sufficient to say that, historically at least, two schools of thought existed with respect to the origins of a statutory decision-maker’s duty to act fairly. On the one hand, there are those who consider the duty to act fairly to be a free-standing common law doctrine. That position has found support in Australia and Canada at various times. On the other hand, there are those who view the duty to act fairly as an implied limit to a statutory decision-maker’s power, which implication arises almost inevitably from the statutory grant of power. It is this latter view that now holds sway in Australia and in some corners of the United Kingdom (although judges regularly accept that the differences in theoretical underpinnings might conceivably have little, if any, effect on the scope and content of the duty to act fairly).

If one accepts the characterisation of the duty to act fairly as a statutory implication, then it necessarily follows that the duty is capable of exclusion by statute (absent any constitutional limitation). In Australia, modern legislatures have gone about the task of excluding and limiting the rights of procedural fairness with gusto. The sphere in which such provisions most often present for judicial consideration is in the Migration Act 1958 (Cth), which has given rise to a string of controversial exclusion provision cases – often splitting the Court – from 1977 right up to the recent decision of BVD17.


Like the United Kingdom, Australia has created a “fast track” regime for the processing of certain visa applications. The first step in this process is that a delegate of the relevant government minister will consider a visa application. If the application is refused, that refusal must be reviewed by the Immigration Assessment Authority (“the Authority”). The case of BVD17 concerned the extent of the Authority’s duty to act fairly, in light of a provision in the Migration Act stating:

“This Division … is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.”

The question in the case was whether this provision limited the duty to act fairly to what was required by the explicit terms of the Division or whether additional content of the duty to act fairly could be implied from the terms of the Division (albeit not from elsewhere in the statute). The latter conclusion, which appeared to have support in a decision of the Court earlier this year, would have resulted in a more demanding duty to act fairly. However, in a plurality of the Court preferred the former interpretation, thus finding the exclusionary provision to be successful in constraining the duty to act fairly to the explicit terms of the Division. The plurality wrote that the effect of the exhaustive statement was “to require those provisions [to] be construed as a codification of the incidents of the Authority’s acknowledged obligation of procedural fairness.” By contrast, a single justice of the Court – Justice Edelman – held that the exhaustive statement did not exclude the recognition of implied content to the duty to act fairly, so long as such an implication was drawn only from provisions within the Division.

          Both the plurality and Justice Edelman, however, were at pains to note that the exhaustive statement of the duty to act fairly did not preclude an implication that the statutory power must be exercised within the bounds of legal reasonableness. This acknowledgement is important because, as the plurality noted, procedural fairness will sometimes, perhaps often, “overlap” with legal reasonableness. (Justice Edelman went further, writing: “even if any implication of procedural fairness were excluded … an implication with almost precisely the same content could be implied as a requirement of legal reasonableness.”) Accordingly, where a challenge to a statutory decision on the basis of procedural unfairness has been excluded, litigators should consider whether their argument could be framed in the language of legal reasonableness.

What lies ahead?

Unlike South Africa, Canada and New Zealand – where the duty to act fairly is reinforced within the Constitution, the Bill of Rights Act and the Charter of Rights and Freedoms, respectively – Australian procedural fairness protections are extremely vulnerable to legislative limitation. While the courts have traditionally been protective of the rights secured by procedural fairness, the result in BVD17 warns against complacency. At the same time, BVD17 suggests that where the duty to act fairly is limited or excluded, a robust conception of legal reasonableness may provide many of the same protections.

Julian R Murphy is a PhD student at Melbourne Law School