What is procedural fairness? - Casebook examples

Procedural fairness requires that a person be given a fair hearing before a decision adversely affecting the person’s rights and interests is made. More specifically, it requires that a decision-maker give the person:

• reasonable notice that an adverse decision may be made
• notice of the specific, critical issue or issues on which the decision is likely to turn
• information about any adverse, relevant or credible evidence that has been obtained from other persons
• a fair opportunity to directly address those critical issues.
   

Procedural fairness then requires the decision-maker to genuinely consider the person’s submissions with an open mind and without prejudgement or any form of bias.

Casebook examples

Procedural fairness missing in university’s original decision (Casebook 2022, page 14)

Over many months, there were several email and phone interactions between Mandy, a university student, and Frank, her lecturer. They related to Mandy’s claims of bullying from her lecturer, and Frank’s claims of abuse from Mandy.

Mandy was issued with a formal written caution by the university and advised that similar conduct in the future would be referred to a student misconduct body. After a further incident between Mandy and Frank, the university formally commenced the misconduct process against Mandy. She was given the opportunity to respond to the allegations at a student misconduct hearing.

During a post hearing discussion, the panel decided a further meeting should be organised for panel members to seek more information from Frank and a student representative. Mandy was not present at the second meeting, and was not given information about evidence provided at the meeting nor any opportunity to respond to it.

The outcome of the process was that the hearing panel recommended that Mandy be immediately expelled from the university. Mandy lodged an appeal against the findings of the hearing panel. Her appeal was declined.

Mandy then complained to this Office. The outcome she sought was for the university to reverse her expulsion and apologise.

The result

This Office considered whether the university properly reviewed and regarded the evidence that Mandy submitted to the appeals committee, and whether in reaching its decision to expel Mandy, the university followed proper administrative process and afforded her procedural fairness.

After discussion with this Office, the university agreed to re-hear the case. Mandy would be given the opportunity to participate in the misconduct hearing, be given relevant evidence for review before the hearing date, and be given the opportunity to make submissions about her case and about any penalty recommended. She would be able to consult with the Student Ombudsman for assistance with the hearing process.

The university also considered a number of systemic improvements that could be made to its hearing process to make hearings fairer.

PhD candidature termination was reasonable (Casebook 2020, page 12)

Dev was an international student enrolled in a PhD program at a Queensland university.

After he participated in his confirmation of candidature presentation he was placed on an Under Review period and given a further four months to revise and amend his confirmation document. Under Review periods are a tiered approach to assist students provide further evidence of an ability to pass the confirmation of candidature stage. When the first period finished, Dev was placed on a second Under Review period for a month.

Dev claimed a lack of feedback on the Under Review One period meant he was not aware of any issues relating to his progress, and he was not fully and explicitly informed of the expected outcomes for the second Under Review.

Dev’s candidature was terminated. He lodged an appeal with the university’s appeals committee. His appeal was considered and dismissed. He exercised his right of review by the Student Ombudsman, who found the university acted properly and he was then referred to this Office.

The result

This Office’s investigation considered whether the university’s decision was in accordance with the university’s Guideline, and whether the decision to terminate Dev’s candidature was reasonable in the circumstances. The investigation found the university provided Dev with detailed feedback at both review stages, lists of tasks and multiple emails. The investigation considered that Dev should have been reasonably aware of the expectation on him, and found that the university acted reasonably in following the Guideline and relevant policy and procedure dealing with appeals and reviews.

Ombudsman insight

Natural justice, or procedural fairness, is a legal principle that is part of the common law. In the context of decision-making, natural justice means providing a person who might be adversely affected by an administrative decision with a fair hearing before the decision is made. 

Essentially, this means giving the person an opportunity to comment on relevant issues and information before a decision is made.