LEGAL PRACTICE NOTE
PROCEDURAL FAIRNESS/NATURAL JUSTICE
LPN 17 (31 January 2013)
BACKGROUND
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.
Notice and Adverse information
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.
BIAS RULE
The bias rule of procedural fairness requires that a decision-maker must not be biased (actual bias) or be seen by an informed observer to be biased in any way (apprehended or ostensible bias) in the hearing of or dealing with a matter during the course of making of a decision.
Bias may arise from:
• interest - pecuniary or proprietary;
• conduct;
• association;
• extraneous information; or
• from some other circumstance.
NO EVIDENCE RULE
The no evidence rule requires that a decision that is made
must be based on logical evidence (proven on the balance of probabilities - that is, the alleged behaviour is more likely to have occurred than not).
It is also important that in making decisions, administrative decision-makers:
• take into account relevant considerations;
• do not take into account irrelevant considerations;
• act for a proper purpose; and
• that the decision is not unreasonable in the sense that no reasonable decision-maker could have reached such a decision.
What satisfies the rules of natural justice and procedural fairness will depend on the facts and circumstances of each individual case.
This practice note is not intended to be relied upon instead of legal advice. You should obtain legal advice as is appropriate for your circumstances. This practice note is not to be circulated without the permission of AHPRA National Office Legal Services.
General Counsel