The operation and effect of s 27 is to preserve principles of fairness and justice

The operation and effect of s 27 is to preserve principles of fairness and justice, particularly in Saga’s mind. Where an Act creates such an ‘expectation’, and the failure to fulfil that expectation would give rise to ‘unfairness’, as in the present instance, any departure from that expectation may breach natural justice. That a court will consider the ‘practical’ consequences of a failure to stage a hearing, and any ‘injustice’ which may arise in denying Saga an ‘opportunity to advance [her] case’ is particularly relevant. In the present circumstances, it is significant that the Tribunal’s decision will likely turn on its assessment of Saga’s submission in relation to the recorded interaction. Accordingly, the absence of an oral hearing may deny Saga a reasonable opportunity to deal with this ‘critical issue’ by either cross-examining the staff or placing the transcript within context at an oral hearing. A failure to provide such an opportunity will likely amount to a denial of procedural fairness.