Procedural fairness refers to acting fairly in administrative decision making.
The expression is often used interchangeably with “natural justice” and is often misunderstood by lawyers and non-lawyers.
Put simply – it relates to the fairness of the procedure by which a decision is made, not the fairness or correctness of the decision itself.
Procedural fairness comprises two broad common law rules designed to ensure that fair procedures are followed in the making of decisions which affect the rights, obligations or legitimate expectations of individuals.
The two rules, or limbs as they are often described, are:
1. The decision-maker must afford a fair “hearing” that is appropriate in the circumstances (the fair hearing rule); and
2. The decision maker should not be biased or seen to be biased (the rule against bias).
Since the seminal case of Kioa v West in 1985, it has been repeatedly emphasised by the High Court of Australia that what it takes to afford procedural fairness is not a fixed prescription and it depends on the particular statutory framework and the circumstances of each case, particularly the nature of the inquiry, the subject matter and the rules under which the decision-maker is acting.
If you are an employer who is concerned about whether you are complying with the principles of procedural fairness, or an allegation has been made by an employee or their representative that you have failed to afford procedural fairness during a process that requires it, we can provide you with advice in relation to this often complex and nuanced area of law.
