Procedural Fairness: M61/2010E v Commonwealth of Australia - Case Study Example

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The paper “Procedural Fairness: M61/2010E v Commonwealth of Australia” looks at the rules of procedural fairness, which require that administrative powers that impact the interests, privileges, and duties of individuals and corporate citizens are exercised pursuant to the rule of law…
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Procedural Fairness: M61/2010E v Commonwealth of Australia
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Download file to see previous pages The case of M61/2010 dealt with the issue of procedural fairness relative to the minister’s exercise of his powers under Section 46A(1) which provides that an unlawful non-citizen may not apply for visa protection unless the Minister exercised a discretionary power to grant such a visa. Once the minister made that decision, investigative measures were taken and it was the manner in which those investigations were conducted that give rise to the legitimate expectation of procedural fairness. This contention is based on the rationale in Annetts v McCann in which it was held that: When a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectation, principles of natural justice generally regulate the exercise of that power and the principles of procedural fairness may be excluded only by plain words of necessary intendment.4 In S10, procedural fairness did not arise because, unlike M61, the minister had not invoked a statutory power to which procedural fairness could be applied. In M/61 offshore processing cases were subject to guidelines issued by the Minister in which a commitment was made to consider applications for visa protection in respect of off-shore unlawful non-citizens satisfying the criteria for refugee status under the Refugee Convention. The power was invoked under Section 46A of the Migration Act and for all intents and purposes, the Minister was actually exercising the power to consider visa applications. The preliminary investigations conducted pursuant to the decision to exercise that power, therefore required compliance with the rules of procedural fairness. This was particularly so where the applicants’ detention was extended as a result of the exercise of that power. In this regard, the applicants in M61 had a legitimate expectation of procedural fairness.5 In distinguishing the case of M61 from the case of S10, the High Court of Australia observed that there were no “clear words in the statute” excluding “the application of procedural fairness in the exercise of powers” under Sections 46A and 195A.6 Thus in exercising the powers which included the power to make the decision to exercise that power the minister was under a duty to comply with the rules of procedural fairness.  ...Download file to see next pagesRead More
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