You have a right to be heard! Procedural fairness in government decisions

Every day, government departments, agencies, and tribunals make decisions that affect the rights and entitlements of Australians. Under the Australian Constitution, these government entities form part of the ‘Executive’, which applies legislation passed by Parliament to individual circumstances. Dominic Cookman, Associate with Snedden Hall & Gallop suggests that perhaps the most important concept in administrative law is procedural fairness (otherwise known as natural justice).

An executive decision-maker can make a decision granting or denying a right or benefit. But before this occurs, a decision-maker must give the affected person a chance to put forward any relevant material that they wish to be considered. By the same token, an applicant must also be given an opportunity to comment upon any material available to the decision-maker that is “credible, relevant and significant” to the making of a decision.

Procedural fairness is conceptually straightforward, but few legal concepts are of greater moral importance. Procedural fairness is the time-honoured principle that the Executive:

  • Must be accountable for its decisions; and
  • Functions must be exercised according to the individual merits of a particular case.

Failure by a decision-maker to accord procedural fairness to an applicant constitutes a ‘jurisdictional error’, which can be then appealed to a court.

An allied, but similarly underappreciated right is conferred by section 13 of the Administrative Decisions (Judicial Review) Act 1977: a person affected by an executive decision has a right to request, and be provided, reasons for the decision.

When dealing with government agencies, you should therefore always remember:

  • You always have a right to have evidence relevant to your case be given due consideration before a decision is made;
  • You always have a right to comment on relevant and significant material that a decision-maker has access to;
  • You (almost) always have a right to receive reasons for a decision; and
  • Failure by a decision-maker to address the above can be grounds for appeal to a Court.

Administrative Law advice

Administrative law is a complicated and ever-changing area. It is also far-reaching and increasingly important for everyday Australians. Snedden Hall & Gallop Lawyers is available to assist government agencies, individuals and organisations to navigate its complexities, assess the risks and protect their rights. Please contact us by email or by phone on (02) 6285 8000. 

Dominic Cookman

Dominic Cookman is an Associate at Snedden Hall & Gallop. You can find out more about Dom in his Biography.