Determination to delay citizenship pledge: natural justice required?

 

Federal Court. Minister made determination under s 26(3) of Australian Citizenship Act 2007 that Applicant could not make pledge of commitment before a certain date. In the absence of express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest? Did the Act expressly or impliedly exclude those rules?

The questions to the Federal Court (FCA) were as follows:

Question 1: In the absence of an express or implied exclusion of the common law rules of procedural fairness, do those rules generally apply when a decision affects a person's right, property or interest?

Question 2: Did the Australian Citizenship Act 2007 (Cth) expressly exclude the common law rules of natural justice?

Question 3: Did the Australian Citizenship Act 2007 (Cth) impliedly exclude those rules on the basis that "the prospect that advance notice may thwart any exercise of power under s 26(3)"?

Question 4: Did the Australian Citizenship Act 2007 (Cth) impliedly exclude those rules on the basis that the nature of the criteria specified in s 26(3) being such that an affected person "is unlikely to be able to make meaningful representations”?

Question 5: Did the Australian Citizenship Act 2007 (Cth) impliedly exclude those rules on the basis that "an affected person may have a subsequent opportunity to be heard, namely an opportunity to seek pursuant to s 26(5) the revocation of a “determination” made pursuant to s 26(3)"?

The FCA answered those questions as follows:

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