What is procedural fairness?

Procedural fairness in Australian law is the modern statutory and judicial development of natural justice principles, requiring that decision-making processes affecting individuals be conducted fairly. The terms natural justice and procedural fairness are now used interchangeably in most contexts, with procedural fairness being the more common contemporary usage.

Procedural fairness has three usual components in Australian law. The hearing rule requires the person affected to know the case to be met and to have an opportunity to respond. The rule against bias requires the decision-maker to be impartial and to avoid actual or apprehended bias. The third element, sometimes called the no-evidence rule or the requirement of rational decision-making, requires that decisions be based on evidence and supported by reasoning that links the evidence to the conclusion.

The content of procedural fairness varies with context. A decision that revokes a professional licence, deports a long-term resident, or imprisons a person attracts a high standard of procedural protection, potentially including legal representation, cross-examination of witnesses, and reasoned written decisions. A decision that denies a parking permit attracts a much lower standard, perhaps just an opportunity to make a written submission. The High Court's reasoning in Kioa v West (1985), Ainsworth v Criminal Justice Commission (1992), and Plaintiff M61 (2010) shaped the modern content of procedural fairness.

Statutory frameworks operate alongside the common law. The Administrative Decisions (Judicial Review) Act 1977 (Cth) sets out the grounds on which federal decisions can be challenged, with denial of procedural fairness as a leading ground. Equivalent state legislation provides parallel remedies. Some statutes expressly require procedural fairness; others purport to exclude it (often only partially successfully, given High Court rulings on irreducible minimums of fairness). The Robodebt Royal Commission of 2023 documented major failures of procedural fairness in automated debt-raising and led to reforms requiring human review of major Centrelink decisions before they take effect.