Procedural Due Process Under the Australian Constitution

Sydney Law Review, Vol. 31, pp. 411, 2009

32 Pages Posted: 6 Feb 2012

See all articles by Will Bateman

Will Bateman

Australian National University

Date Written: September 1, 2009

Abstract

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

Bateman, Will, Procedural Due Process Under the Australian Constitution (September 1, 2009). Sydney Law Review, Vol. 31, pp. 411, 2009, Available at SSRN: https://ssrn.com/abstract=1999938

Will Bateman (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 2601
Australia

HOME PAGE: http://https://law.anu.edu.au/people/will-bateman

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