The Law To Know

Administrative law · Australia · about 4 minutes

Procedural fairness

The thermostat

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In one breath

Procedural fairness, once called natural justice, is a common law duty on a person making a decision that affects another’s rights or interests to hear that person fairly and to decide without bias. The duty is presumed to apply, can be removed only by clear statutory words, and has content that varies with the circumstances.

The picture

The thermostat

A thermostat does not decide whether a room gets heat; it sets how much. In a house where people live, the heating is presumed to be on, and someone must take clear action to switch it off. The dial is then turned up or down according to the weather. A hearing for a licence on which a livelihood depends sits high on the dial, a quick check of a library card sits low, and a brief chance to reply may be all a room needs.

Fairness works in the same way. The law presumes that a person whose rights or interests will be affected is owed fairness, and Parliament must say so clearly if it wants otherwise. The content is then set by the circumstances: the nature of the power, the stakes for the person, the statute and the urgency. At the high setting the person is told the case against them, is given adverse material that is credible, relevant and significant, and has a real chance to answer. At every setting the decision-maker must be free of bias.

Where the picture stops working

A thermostat has one scale, whereas fairness has two distinct strands, the hearing rule and the bias rule, which are tested differently. The picture also makes the setting sound like a matter of taste. The courts treat what fairness requires as a question of law, and in a Commonwealth decision a failure to give it where it is required is usually a jurisdictional error.

How it really works

  1. 1Place the rule. It is a common law duty that applies to federal and State decision-makers alike. A statute may add to it or exclude it, but exclusion needs clear words.
  2. 2Ask whether the decision affects the person’s rights or interests in a direct and individual way. If so, a duty is presumed. The High Court has been cautious about the idea of a “legitimate expectation” as a separate source.
  3. 3Check whether the statute excludes the duty. Silence or general words do not; clear words or a necessary implication do.
  4. 4Work out the content. The person usually must have notice of the case and a chance to put their own, and adverse information that is credible, relevant and significant must be disclosed. How much more depends on the stakes, the statute and the urgency.
  5. 5Apply the bias rule. Would a fair-minded observer reasonably apprehend that the decision-maker might not bring an impartial mind to the question? A direct interest in the outcome is the clearest case.

Why people get it wrong

  • Thinking fairness requires a formal court-style hearing. Often a written chance to respond is enough.
  • Assuming that a fair outcome is enough. The duty is about the process.
  • Believing it applies only to formal tribunals. It applies to any decision-maker whose decision affects rights or interests.
  • Assuming it includes a general right to reasons. The common law imposes no general duty to give reasons for administrative decisions, although statutes often do.
  • Treating it as a fixed script. The two rules are constant, but their content moves.

A worked example

The facts are invented

A statute lets the Director of Harbour Licences revoke a mooring licence if satisfied that the holder has breached its conditions. A neighbour complains about Amara’s boat, and the Director revokes her licence without telling her. The statute is silent on hearings. The duty is presumed, nothing excludes it, and the stakes are high, so Amara should have been told of the allegation and given a chance to respond.

Change the facts: the Director tells her and allows seven days to reply, but does not reveal the neighbour’s photographs, on which the decision relies. That is adverse, credible and significant material, so the process still falls short. Change them again: the Director had previously co-signed a letter with the neighbour demanding that Amara’s boat be removed. A fair-minded observer might reasonably apprehend bias.

Try it

A statute lets a board cancel a business permit if satisfied that the holder is unsuitable. The board cancels Dara’s permit relying on an informant’s report that Dara has never seen. The statute says nothing about hearings. What is the best view?

Landmark authorities

Read the sources themselves; this list is a starting point.

  • Kioa v West, (1985) 159 CLR 550
  • Public Service Board of New South Wales v Osmond, (1986) 159 CLR 656
  • Annetts v McCann, (1990) 170 CLR 596
  • Ebner v Official Trustee in Bankruptcy, (2000) 205 CLR 337

Where to go next

More hard concepts in Australia law

This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.