The Future of the ‘Fair Hearing’ in Australian public law: Perception, Consequence and the Boundaries of Judicial Function

The last 20 years has seen a paradigm shift in Australia’s ‘fair hearing’ rules. A requirement of ‘practical injustice’ emerged from challenges to procedural mistakes in the early 2000s, and was then extended and put to heavy use by government lawyers. This focus on ‘consequence’ was a retreat from traditional concern for public perceptions and ‘expectations’ of executive process. It was perhaps part theoretical change (a new ‘contextualism’ in administrative law) and part predictable response to high caseloads and changes in regulatory context. Yet this notion of ‘practical injustice’ has been pulled in awkward directions, drawing courts into troubling hypotheticals and probabilities. Despite this, it has now been lifted into the broader ‘jurisdictional error’ doctrine. Before it settles there, now is the time to revisit its lengthening shadow in natural justice cases, and its reshaping of the very purposes (and influence) of natural justice and the boundaries of the judicial role.