Statutory Exclusion of Natural Justice: Possibility and Improbability

Abstract

Despite the finding in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ('Aala') that a breach of the rules of natural justice is a form of jurisdictional error, it is not uncommon for it to be excluded by statute. In the first section of this paper I look at how such exclusion fits into the scheme of jurisdictional error, identifying grounds which can and cannot be excluded from judicial review. In the second section I turn to statutory interpretation, using the judgment of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ('Miah') to analyze judicial interpretation of statutes according to the principle of legality, Dworkin’s model of the 'best' interpretation and Gadamer’s hermeneutics. On any of these accounts, exclusion can be achieved by Parliament expressly stating that natural justice is excluded, but absent these precise words, the requisite level of clarity is unclear and the courts avoid such a finding. I therefore argue that the statutory exclusion of natural justice as a ground of jurisdictional error is possible, but on courts’ current approach, improbable.