What is Procedural Fairness?
Procedural fairness is a central concept in administrative law. It means fairness in the procedures followed when arriving at an administrative decision. Procedural fairness is fundamental to the administration of justice. When procedural fairness has not been given, a person can file an appeal and get a decision overturned on that basis.
When there has been a denial of procedural fairness, the decision that is made is invalid regardless of whether or not the decision itself was the correct or preferable decision.
When is there a duty to accord procedural fairness?
Administrative decision-makers are required to give a person procedural fairness before making a decision that will affect their rights, interests or legitimate expectations. Administrative decisions are decisions by government departments and agencies such as decisions on visa applications, decisions on housing applications, Centrelink matters and taxation matters.
Procedural fairness may not apply in cases where a decision affects so many people that it amounts to a legislative act. A duty to afford procedural fairness can be expressly excluded by legislation but legislation will generally be interpreted in a way that is consistent with the existence of a duty to afford procedural fairness.
What does procedural fairness involve?
What is required in the interests of procedural fairness will depend on the nature of the matters at issue. Parties must always be given a reasonable opportunity to present their case and what amounts to a reasonable opportunity will vary depending on the circumstances.
The High Court has said that ‘the expression “procedural fairness” …conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the case’ (per Mason J in Kioa v West).
Procedural fairness generally involves two requirements. These are the fair hearing rule and the rule against bias.
The fair hearing rule
The fair hearing rule is the rule that the decision-maker must give a person the opportunity to be heard before it makes a decision that affects them.
A fair hearing generally means:
- giving the person prior notice that a decision will be made that will affect their interests;
- disclosing to them the critical issues to be addressed and any information that is credible, relevant and significant to deciding them; and
- conducting a substantive hearing (which may be oral or written) where the person is given a reasonable opportunity to present their case. In some circumstances, there will be a duty to allow the person involved to have legal representation at the hearing.
The rule against bias
The rule against bias is the rule that the decision-maker must not be biased in a way that prevents them from making a decision that is objective and impartial. A decision-maker must be free of any actual bias as well as being free of any apprehension of bias.
Whether a decision-maker is biased is determined according to the standards of al fair-minded layperson who is informed of the circumstances.
When may procedural fairness be reduced?
In some circumstances, the extent of what must be done in the interests of procedural fairness can be greatly reduced. An example of this is when the issue of national security is relevant in ASIO making an adverse security assessment. Courts have held that where there is a prejudice to national security, the duty to disclose the critical issues on which a decision turns ‘is reduced, in practical terms, to nothingness.’
Conversely, where the decision is likely to have particularly serious consequences for persons affected, very detailed requirements of procedural fairness must be adhered to.
Fair process vs fair outcome
Procedural fairness means a fair hearing and not a fair outcome. A decision may be found to have been procedurally fair even where the decision arrived at was not fair. Conversely, there can be a failure of procedural fairness even though the decision made was fair. This means that a decision that is ‘correct’ may still be overturned because of the way it was arrived at.
Judicial review of administrative decisions, such as an appeal against a decision by the Administrative Appeals Tribunal, is concerned with the decision-making process and not with the decision that was ultimately made.
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