Procedural Due Process Under the Australian Constitution
Sydney Law Review, Vol. 31, pp. 411, 2009
32 Pages Posted: 6 Feb 2012
Date Written: September 1, 2009
Early attempts to establish a constitutional procedural due process principle have relied upon the separation of judicial power and operated within the doctrinal framework provided by R v Kirby; Ex parte Boilermakers’ Society of Australia. Such attempts focused on developing a concept of ‘judicial power’ that included a minimum standard of procedural fairness. Although this conception was adopted by several members of the High Court in the 1990s, notably Gaudron J, it has failed to gain significant doctrinal traction, and the status of procedural due process principles under the Commonwealth Constitution remains unsettled.
In this article I review the position of the current approach and assess the effect of certain seminal cases, particularly Nicholas v The Queen and Thomas v Mowbray, on the development of a procedural due process principle. After concluding that the current doctrine is attended by fatal difficulties, I investigate an alternative constitutional grounding for procedural due process based on another limb of Chapter III case law, focusing on Forge v Australian Securities and Investments Commission. The proposed principle is accompanied by an interpretative framework for its application, that is developed by analogy with the High Court’s ‘trial by jury’ jurisprudence.
Keywords: constitutional law, due procee, procedural due process, Australia, natural justice
JEL Classification: K00, K20, K30, K40
Suggested Citation: Suggested Citation