An affected person should be provided with notice of a proposed decision that may adversely affect them. They should also be provided with details of any credible, relevant and significant information which the decision-maker has, and which may affect the decision to be made, and be given an opportunity to respond. This applies to both oral submissions and occasions when decisions are made solely on the basis of written submissions, although note there are limits to this obligation, i.e. it does not extend to a requirement to provide investigator reports – see LPN 15 for further discussion of this topic.
Adequate time should be given to the person to prepare for an oral presentation (if there is one) or prepare written submissions before a decision is made (where reasonably practicable).
If a person has already responded to some material, but further information comes to the attention of the decision-maker before a decision is made, then the person should also be given an opportunity to respond to that extra information.
Urgent decisions/Immediate action
Sometimes urgent decisions have to be made and, in such situations, the requirements under the hearing rule may be reduced to almost nothing.
(However, courts do not look kindly upon decisions that are made urgently due to the decision-maker’s delay.) This is likely to happen only in rare circumstances and such decisions should generally be short-term and allow the person to submit reasons to the decision-maker as to why the decision should be overturned. Examples of such decisions are those made by the Immediate Action Committee. The Explanatory Notes to the National Law provide further explanation.
The stated time in the notice from the board to the practitioner or student about the proposed immediate action may be a matter of hours. A practitioner’s or student’s response to the notice issued under clause 157 may be written or verbal, and a National Board is to take the submission into account in deciding whether to take immediate action in relation to the practitioner or student.
The purpose of the show cause process is to afford the practitioner or student natural justice prior to a National Board deciding whether to take immediate action. It is not intended that this process delay or impede a National Board from taking immediate action, when it is warranted.
Breach of the hearing rule
Breach of the hearing rule will usually, though not always, amount to jurisdictional error and void the decision. In cases of a minor breach, the court may consider that the breach of the hearing rule made no difference to the decision. In these rare circumstances, breach of the hearing rule may not be fatal to a decision.