Procedural fairness
| Procedural fairness |
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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[1].
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[2].
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[3].
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[4]
- 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.
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
