What is procedural fairness?
Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome
reached. It requires a fair and proper procedure be used when making a decision. The Ombudsman considers it
highly likely that a decision-maker who follows a fair procedure will reach a fair and correct decision.
Is there a difference between natural justice and procedural fairness?
The term procedural fairness is thought to be preferable when talking about administrative decision-making
because the term natural justice is associated with procedures used by courts of law. However, the terms have
similar meaning and are commonly used interchangeably. For consistency, the term procedural fairness is used in
this fact sheet.
Does procedural fairness apply to every government decision?
No. The rules of procedural fairness do not need to be followed in all government decision-making. They mainly
apply to decisions that negatively affect an existing interest of a person or corporation. For instance, procedural
fairness would apply to a decision to cancel a licence or benefit; to discipline an employee; to impose a penalty; or
to publish a report that damages a person’s reputation.
Procedural fairness also applies where a person has a legitimate expectation (for example, continuing to receive a
benefit such as a travel concession). Procedural fairness protects legitimate expectations as well as legal rights. It
is less likely to apply to routine administration and policy-making, or to decisions that initially give a benefit (for
example, issuing a licence in the first instance).
In some rare circumstances, the requirement to provide procedural fairness is specifically excluded by Acts of
Parliament (for example, section 115 of the Sentence Administration Act 2003).
The rules of procedural fairness require:
a hearing appropriate to the circumstances;
lack of bias;
evidence to support a decision; and
inquiry into matters in dispute.
What is “the hearing rule”?
A critical part of procedural fairness is ‘the hearing rule’. Fairness demands that a person be told the case to be
met and given the chance to reply before a government agency makes a decision that negatively affects a right, an
existing interest or a legitimate expectation which they hold. Put simply, hearing the other side of the story is critical
to good decision-making.
In line with procedural fairness, the person concerned has a right:
to an opportunity to reply in a way that is appropriate for the circumstances;
for their reply to be received and considered before the decision is made;
to receive all relevant information before preparing their reply. The case to be met must include a description of
the possible decision, the criteria for making that decision and information on which any such decision would be
based. It is most important that any negative information the agency has about the person is disclosed to that
person. A summary of the information is sufficient; original documents and the identity of confidential sources
do not have to be provided;