LAWS50032 · Administrative Law
Procedural Fairness
Procedural fairness (natural justice) is a common-law ground of review (also ADJR s 5(1)(a)) with two limbs: the hearing rule (notice plus a fair opportunity to be heard) and the bias rule (an impartial decision-maker). Always work in two stages: (1) the threshold — is procedural fairness owed, and has the statute clearly excluded it? — then (2) the content — was the hearing or bias rule breached, and was the breach material? At the threshold, a duty is implied where a person's rights or interests are affected in a 'direct and immediate way' (Kioa), there is a strong presumption that the power is conditioned on fairness (Badari), and exclusion requires 'plain words of necessary intendment' (Saeed). The hearing rule turns on disclosing 'credible, relevant and significant' material (Kioa) and avoiding 'practical injustice' (WZARH); legitimate expectation is discarded as a touchstone (WZARH). The bias rule covers actual bias and reasonable apprehension, tested by the two-step Ebner method. This is a recurring, high-yield Part-A ground.
What this chapter covers
- 01Two limbs: the hearing rule and the bias rule (also ADJR s 5(1)(a))
- 02Stage 1 — threshold: is a duty implied? (rights/interests — Kioa, Badari)
- 03Statutory exclusion: only by plain words of necessary intendment (Saeed)
- 04The hearing rule: 'credible, relevant and significant'; 'practical injustice' (WZARH)
- 05Legitimate expectation discarded as a touchstone (WZARH; Teoh; Lam)
- 06The bias rule: actual bias + reasonable apprehension; the Ebner two-step
- 07Materiality (low threshold — Nathanson) and consequence
Worked example: running the procedural-fairness structure
- +1Threshold — is a duty implied? The refusal affects the applicant's interests directly, so the common-law duty attaches and the strong presumption applies (Kioa; Badari).
- +1Statutory exclusion? The statute is silent, and silence is not enough — exclusion requires plain words of necessary intendment (Saeed). So the duty stands.
- +1Which rule, and breach? The hearing rule: 'credible, relevant and significant' adverse material must be disclosed so the person can respond (Kioa). Relying on an undisclosed adverse report is a breach — 'practical injustice' (WZARH).
- +1Materiality: the threshold is low — could disclosure realistically have made a difference? (Nathanson). If the applicant could have answered the report, the breach is material.
- +1Consequence: a material breach Parliament intended to invalidate renders the decision affected by jurisdictional error and liable to be quashed (Project Blue Sky; LPDT).
Key terms
- Procedural fairness
- The common-law duty (also ADJR s 5(1)(a)) to decide fairly, with two limbs — the hearing rule and the bias rule. It is presumed to apply where rights or interests are affected and is excluded only by plain words of necessary intendment.
- Hearing rule
- The requirement of notice and a fair opportunity to be heard: 'credible, relevant and significant' adverse material must be disclosed so the person can respond (Kioa), and the focus is on avoiding 'practical injustice' (WZARH).
- Bias rule
- The requirement of an impartial decision-maker, covering both actual bias and a reasonable apprehension of bias. Apprehended bias is tested by the two-step Ebner method: identify what might lead the mind to be deflected, and articulate the logical connection to the feared deviation.
- Plain words of necessary intendment
- The standard for statutory exclusion of procedural fairness: the legislature can curtail or exclude fairness, but only by clear and necessary words, not by silence or general language (Saeed).
- Legitimate expectation
- A formerly used touchstone for the content of procedural fairness, now discarded (WZARH): the inquiry is whether there is practical injustice, not whether an expectation was raised. Teach Teoh and Lam as history, not live law.
Procedural Fairness FAQ
What are the two limbs of procedural fairness?
The hearing rule (notice and a fair opportunity to be heard) and the bias rule (an impartial decision-maker, covering actual bias and reasonable apprehension). Both are aspects of the same common-law duty, also captured by ADJR s 5(1)(a).
When does procedural fairness apply?
It is presumed to apply where a person's rights or interests are affected in a direct and immediate way (Kioa), with a strong presumption that the power is conditioned on it (Badari). It is excluded only by 'plain words of necessary intendment' (Saeed) — statutory silence does not exclude it.
Do I still argue legitimate expectation?
No — legitimate expectation has been discarded as a touchstone for procedural fairness (WZARH). The modern inquiry asks whether there was practical injustice. Mention Teoh and Lam only as history; arguing legitimate expectation as live law is a currency error.
Why does materiality matter for procedural fairness?
Because not every breach invalidates: after Hossain and Nathanson the breach must be material — it must realistically be capable of affecting the outcome. The threshold for procedural-fairness materiality is low (Nathanson), but you must still address it, then reach the consequence (Project Blue Sky; LPDT).
Exam move
Run procedural fairness as a fixed structure and you will not miss marks: threshold (rights/interests + presumption not displaced — Kioa, Badari) → statutory exclusion? (plain words — Saeed) → which rule breached (hearing: 'credible, relevant and significant', WZARH; or bias: the Ebner two-step) → materiality (low threshold — Nathanson) → consequence (Project Blue Sky; LPDT). Drill the currency: legitimate expectation is dead (WZARH); Badari and Hendry (No 3) are the frontier cases. Because procedural fairness recurs in Part A, practise it until the structure writes itself.
