Procedural fairness (or natural justice), is a principle that governs the way government bodies and other decision-makers make decisions. It requires that authorities make decisions in criminal law or family law in a fair and unbiased manner.
This way, individuals have a reasonable opportunity to present their case. They can have authorities consider their rights and interests before they make a decision. Any decision adversely affects parties’ rights and interests.
Prior to rendering a decision that may impact an individual’s rights, interests, or reasonable expectations, administrative decision-makers, such as ministers, must adhere to the principles of procedural fairness.
The fair hearing rule states that the decision-maker must give a person the opportunity to be heard before it makes a decision that affects them. The legislation may explode the duty to afford procedural fairness.
In Australia, the Constitution enshrines procedural fairness, and it is a fundamental right that underpins the rule of law. It is essential to ensure that decisions made by government bodies are fair and just. This way, individuals do not face unfair disadvantages or discrimination. Read on to know more about procedural fairness.
Two Main Aspects of Procedural Fairness
There are two main aspects to procedural fairness. The right to be heard and the right to a fair and unbiased decision-maker. Let’s take a closer look at each of these aspects.
1. The Right To Be Heard
The right to be heard means that individuals who are affected by a decision have the opportunity to present their case and have it considered before a decision is made. This can include the right to:
- Know the case against them: Individuals have the right to know the case against them and the evidence that the authorities will consider in making the decision.
- Present their case: Individuals have the right to present their case and any evidence or arguments in support of it.
- Respond to the case against them: Individuals have the right to respond to any arguments or evidence presented against them.
- Have a fair hearing: Individuals have the right to have their cases heard by an impartial decision-maker in a fair and unbiased manner.
2. The Right to a Fair and Unbiased Decision-Maker
The right to a fair and unbiased decision-maker means that decisions must be made by an impartial decision-maker who has no personal interest in the outcome of the decision. This can include the right to:
- An independent decision-maker: The decision-maker must be independent of the parties involved in the decision and free from bias or any conflict of interest.
- A reasonable decision-maker: The decision-maker must make a decision that is reasonable and based on the evidence presented.
- A decision-maker who gives reasons: The decision-maker must provide reasons for the decision. Thus, individuals can understand why authorities made the decision whether it was fair and reasonable.
Centrelink “Robodebt” Scheme
In 2016, the Australian Government introduced a new automated system to detect and recover overpayments made to welfare recipients. The system, known as the “Robodebt” scheme, used data-matching technology to compare income reported to Centrelink with data from the Australian Taxation Office (ATO).
The problem with the scheme was that it often produced inaccurate results. Many welfare recipients faced the wrong accusation of owing money to Centrelink. The system also breached procedural fairness principles since individuals were denied the opportunity to explain their circumstances and dispute the debt.
As a result, the Federal Court of Australia found the scheme to be unlawful and ordered the government to pay compensation to affected individuals. The case highlighted the importance of procedural fairness and the need for government decision-makers to adhere to the principles of natural justice.
Steps for Ensuring Procedural Fairness
How can individuals ensure that their rights to procedural fairness are being respected? Here are some key steps to keep in mind:
- Understand your rights: It’s important to be aware of your rights to procedural fairness and how they apply in the particular context of your case.
- Gather evidence: If you are presenting a case or disputing a decision, gather all relevant evidence and documentation to support your position.
- Be prepared: If you are attending a hearing or meeting, make sure you are fully prepared and have a clear understanding of the issues at stake.
- Seek legal advice: If you are unsure about your rights or need assistance in presenting your case, seek legal advice from a qualified lawyer.
- Document everything: Keep a record of all communication, meetings, and decisions related to your case. This can be helpful in case you need to appeal a decision or seek legal recourse.
Fair Process vs Fair Outcome
Procedural fairness is about ensuring a fair process, rather than a fair outcome. This means that a decision is procedurally fair even if:
- The decision made is not the one you were hoping for; or
- The process leading up to that decision was fair and unbiased
Conversely, even if the decision itself seems reasonable it can be a failure of procedural fairness if the process leading up to that decision:
- Was flawed; and
- Did not follow the principles of procedural fairness
When appealing against a decision, judicial review is concerned with examining the decision-making process. This ensures that the decision follows the principles of procedural fairness. The court will look at factors such as whether the person received adequate notice of the decision. This is the case whether:
- They were given the opportunity to be heard and present evidence; and
- The decision-maker was biased or had a conflict of interest.
How Can We Help?
Under certain circumstances, there can be curtailment of procedural fairness. For instance, there may be a reduction in the scope of measures to ensure procedural fairness. For example, when ASIO considers a matter of national security in making an adverse security assessment.
- Advise clients on their rights: We can provide advice and guidance to clients on their rights and obligations under the law, including the principles of procedural fairness. This can help clients understand what they can expect from the decision-making process. We can also advise what are our client’s options if they believe someone has violated their rights.
- Representing clients in hearings: We can represent clients in hearings or other proceedings where their procedural rights are at stake. This can involve preparing and presenting evidence, cross-examining witnesses, and making submissions on behalf of their clients.
- Making submissions on procedural fairness: We can make submissions to decision-makers, such as tribunals or government agencies, on behalf of our clients, arguing for their client’s rights to procedural fairness. This can include raising concerns about the decision-making process. These concerns may include a lack of notice or an unfair hearing.
- Appealing decisions: Our team can assist clients in appealing decisions that they believe the authorities made without proper consideration of their procedural rights. This can involve identifying grounds for appeal, preparing and filing legal documents, and representing clients in court or before an appeals tribunal.
Contact us today if you need legal advice and representation about procedural fairness matters.