'I know it when I see it': what is procedural fairness?

It can be hard to define, but procedural fairness must underlie public service employment decisions.

Of hardcore pornography, a United States Supreme Court judge once wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Putting aside the far less titillating context, much the same can be said of procedural fairness. This amorphous concept is an essential element of employment-related decision-making in the Australian Public Service. Yet procedural fairness is incredibly difficult to define in the abstract.

It also means different things to different people: for decision-makers, it can be a frustrating restraint on the efficient exercise of their powers, while for those affected by an adverse decision the alleged absence of procedural fairness is often a catch-all for any number of grievances. For public servants charged with ensuring procedural fairness, “I know it when I see it” is hardly sufficient.

The concept, an offshoot of natural justice, has ancient origins. A British judge once observed that “even God himself did not pass sentence upon Adam, before he was called upon to make his defence”. For the secular jurist, an early judgment of the Australian High Court drew support from a tragedy by Roman playwright Seneca. Justice Ian Callinan similarly posited: “That no man is to be judged unheard was a precept known to the Greeks.”

Two millennia later, it remains accepted that, absent clear statutory language to the contrary, a government decision-maker intending to exercise their power in a manner that affects rights, interests or legitimate expectations must afford procedural fairness to those affected. In the APS context, this common law duty is supplemented by statute: section 15 of the Public Service Act requires agency heads to establish code of conduct procedures that have due regard to procedural fairness.

What, then, does this entail? To begin with, it is clear what procedural fairness is not. The High Court has repeatedly stressed that “what is required by procedural fairness is a fair hearing, not a fair outcome”. The inverse is also true: a decision might be objectively “right” but can still be invalidated via judicial review if it was made contrary to the requirements of procedural fairness. British courts have summarised that “judicial review is concerned, not with the decision, but with the decision-making process”.

Beyond these exclusions, the concept has two primary components: the hearing rule and the bias rule. The former requires that someone who will be affected by a prospective administrative decision must be heard, whether through oral or written submissions, before the decision is made. Misconduct investigations are an obvious example: it would be grossly procedurally unfair for a decision to be issued without the alleged wrongdoer having an opportunity to make their case.

The second element of procedural fairness demands that a decision-maker be free from bias or any apprehension of bias. This requirement derives from a central legal tenet: a person cannot be the judge in his or her own cause. The decision-maker in a code of conduct investigation could not be the complainant, nor have close ties with the accused. While actual bias is readily identifiable and rarely problematic, the apprehended bias limb often requires closer attention. Decision-makers must ensure that a reasonable bystander would not apprehend the existence of bias from the circumstances.

One difficulty in defining procedural fairness is its context-specific nature. As High Court justice Frank Kitto mused in 1963: “The books are full of cases which illustrate … the impossibility of laying down a universally valid test … ‘the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’ ”

However, drawing on my experience acting for public servants in countless APS code of conduct matters, I can offer some guidance. First, procedural fairness requires that specific and particularised allegations of misconduct be put to the accused. It is insufficient to state these at a level of generality: for example, “it is alleged that, over the past 12 months, you have breached the APS code of conduct contained within the Public Service Act, by engaging in a course of conduct that constituted bullying of your colleagues”.

Instead, the particular detail of each and every allegation must be put: “It is alleged that, on June 12, 2017, you said words to the effect of “you are stupid and useless” to John Smith, being conduct amounting to a breach of subsection 13(3) of the Public Service Act because you failed to treat everyone with respect and courtesy, and without harassment.”

The NSW Supreme Court confirmed the need for such an approach in Etherton v Public Service Board. The allegations in that case were provided to the accused in broad terms and accompanied by hundreds of pages of evidence. Justice David Hunt scolded the decision-maker: “It is only by knowing precisely the basis upon which the board has charged the plaintiff that he can properly prepare.”

Decision-makers are also well-advised to adopt a liberal approach to deadlines. In my experience, decision-makers often set artificial deadlines and insist that the accused reply promptly to allegations. In Etherton, the accused was given just three days to admit or deny the charges against him. Other than in the most urgent of cases, such deadlines will be procedurally unfair.

It is apt to end with complementary quotations from two of Australia’s past chief justices. In a 2010 paper, Robert Gleeson observed: “Procedural fairness is part of our cultural heritage. It is deeply rooted in our law.”

Murray Gleeson had previously offered a method to translate such lofty sentiment into practice. “Fairness is not an abstract concept,” he once wrote. “It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

Procedural unfairness might be hard to define, but judges and lawyers know it when they see it.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender for his help in preparing this article.

First published in The Canberra Times.