Procedural fairness

Procedural fairness is concerned with the procedures used by a decision maker, rather than the actual outcome reached. It requires a fair and proper procedure be used when making a decision.

The content of common law procedural fairness

The content of common law procedural fairness is generally divided into two separate categories. The first finds its origin in the Latin term audi alteram partem, meaning "hear the other side" or more commonly, "the right to be heard." As will become evident later in this paper, the right to be heard has been interpreted quite broadly, conferring on individuals a variety of procedural entitlements. The second element of procedural fairness, which will not be addressed in this paper, is derived from the Latin term Nemo judex in sua propria causa debet esse, essentially meaning that no one should be a judge in their own case.

Whats is procedural impropriety?

The doctrine of natural justice embraces the grounds of breach of procedures prescribed by statute or subordinate legislation designed to ensure procedural fairness in decision-making and curb real or apprehended bias. A decision may be infected by procedural impropriety if in the process of its making, the procedures prescribed by statute have not been followed or if the rules of natural justice have not been adhered to. Sometimes, this is referred to as procedural fairness. A breach of procedural fairness or natural justice may also render a decision tainted with jurisdictional error or ultra vires and unreasonableness in the Wednesbury sense. The grounds are mare indications; the same set of facts may give rise to more than one ground of judicial review.

Procedural fairness and natural justice

It is often difficult to distinguish the concepts of procedural fairness and natural justice. Generally speaking, they mean the same thing. Procedural fairness is concerned with the procedures used by a decision-maker, rather than the outcome reached. It requires that a fair and proper procedurę must be used when making a decision. Traditionally, the doctrine of procedural fairness had two elements which are related to the rules fair hearing and bias evaluated in this chapter. The elements are

• A decision-maker must afford an opportunity to be heard to a person whose interests will be adversely affected by a decision or action; and
• A decision-maker must be impartial and disinterested in the matter to be decided.

Examples of Procedural fairness

1. *Providing adequate notice of a decision to be made: For example, providing sufficient notice of a public hearing, so that the public is aware and can participate in the process.
2. *Providing a fair hearing: For example, allowing all parties to present their evidence and arguments, and ensuring that all relevant information is considered.
3. *Ensuring impartiality: For example, allowing an independent third party to review decisions, or having an impartial decision-maker who has no vested interest in the outcome.
4. *Making decisions based on facts: For example, ensuring decisions are made based on the evidence presented, rather than on emotion or opinion.
5. *Giving reasons for decisions: For example, providing an explanation for the decision made, and providing an opportunity for the parties to challenge the decision, if they disagree.

Advantages of Procedural fairness

Procedural fairness offers numerous advantages, including:

• Ensuring that decisions are made without bias or prejudice, as the procedures used must be fair and reasonable. This ensures that decisions are made objectively, on the relevant evidence and arguments presented.
• Allowing those affected by a decision to be heard, as procedural fairness guarantees that those affected by the decision have an opportunity to present their case and be heard.
• Ensuring that the decision maker is accountable for the decisions they make, as procedural fairness requires that a decision-maker explain their decision and the reasoning behind it.
• Enhancing the legitimacy of decisions, as when procedural fairness is followed, the decision is more likely to be accepted as fair by those affected by the decision.

Limitations of Procedural fairness

Procedural fairness has certain limitations which should be taken into consideration when making decisions. These limitations include:

• Procedural fairness does not guarantee that the decision made is the right or best decision. As procedural fairness focuses on the process used to make a decision, the decision itself may not be the most optimal or even the correct one.
• Procedural fairness may not take into account all relevant factors. While procedural fairness requires a fair and proper procedure be used, it may not take into account all the relevant factors and considerations that should be taken into account when decision making.
• Procedural fairness does not guarantee a satisfactory outcome for all parties. Procedural fairness does not guarantee that all parties involved in a decision will be happy with the outcome, as different participants may have different expectations and interests.
• Procedural fairness does not guarantee that a decision will be implemented. Even if procedural fairness is followed, there is no guarantee that the decision will actually be implemented. The decision may be overturned or ignored by the parties involved.

Other approaches related to Procedural fairness

• Natural justice: This refers to the principles of fairness and reasonableness that should be applied to decision-making. It is concerned with making sure that the decision maker acts in a manner that is fair, impartial, and reasonable.
• Burden of proof: This refers to the obligation to prove an assertion or charge. It is a legal requirement that the burden of proving a point or fact lies with the person making the allegation.
• The rule of law: This is the principle that all laws must be applied equally and fairly to all persons, regardless of their social status or background. It also requires that the laws be applied in a reasonable and consistent manner.
• Equality before the law: This is the principle that all persons are equal before the law and should be treated equally and fairly by the law.

In summary, other approaches related to procedural fairness share the goal of providing a fair and impartial decision making process, and include natural justice, burden of proof, the rule of law, and equality before the law.

Procedural fairness — recommended articles

Summary offense — Mutual assent — Constructive fraud — Objective theory of contract — Judicial precedent — Testimonial evidence — Statutory obligation — Pendente lite — Vitiating factor

References

• Freeman M. (2006). Truth Commissions and Procedural Fairness, Cambridge University Press, New York
• Karaiye C. (2019). Administrative Law and Judicial Review in Papua New Guinea, Notion Press, India
• Mullan D. (2001). Administrative Law, Irwin Law, Canada
• Nihoul P. (red)(2015). Procedural Fairness in Competition Proceedings, Edward Elgar Publishing, United Kingdom
• Roberson C. (2018). Routledge Handbook of Social, Economic, and Criminal Justice, Routledge, New York

Footnotes

Author: Sylwia Szrajber