This practice note covers the right to procedural fairness (a term that is often used interchangeably with “natural justice”). Procedural fairness is an implied common law duty to act fairly in decision-making by the exercise of statutory powers which may affect an individual’s rights, interests or legitimate expectations. The High Court has said:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”
In essence therefore, “procedural fairness” is the duty cast on administrative decision-makers to act fairly when making decisions which may affect people’s rights, interests and legitimate expectations. The recognised categories of “right” or “interest” are broad, and include personal freedom, status, preservation of livelihood and reputation.
RULES OF PROCEDURAL FAIRNESS
There are three recognised rules of procedural fairness:
1) the Hearing Rule – the right to a fair hearing;
2) the Bias Rule – a requirement that the decision-maker is impartial; and
3) the No evidence rule – the requirement for decisions to be based on logically probative evidence, not on mere speculation or suspicion.
Hearing Rule
The hearing rule requires a decision-maker to inform a person of the case against them or their interests and give them an opportunity to be heard. The extent of the obligation on the decision-maker depends on the relevant statutory framework and on what is fair in all the circumstances.
The concept of a person’s ‘interests’ is broad and includes things such as legal status, business and personal reputation, liberty, confidentiality, livelihood and financial interests.
The High Court has recognised that procedural fairness may be breached where a person has a ‘legitimate expectation’ that a decision-maker will act in a certain way but fails to do so, to the person’s detriment, although the ultimate question remains whether there has been unfairness in all the circumstances of the case, not whether a representation has been departed from or whether an expectation has not been met.
The requirements for procedural fairness have developed primarily through the common law and it is important to note that a statute can limit the hearing rule expressly or through necessary implication. The common law duty to act fairly in the making of administrative decisions is subject only to the clear manifestation of a contrary legislative intention.
The National Law has several requirements for people to be heard, for example:
• in registration, if the imposition of a condition is proposed or refusal of a registration is proposed, there must be an opportunity for the applicant to make submissions about the proposal.
• in the notification process, the practitioner about whom the notification is received is entitled to know the case put against them, see the evidence, and be given the right to be heard in any hearing.