Procedural fairness in the Department of Education and Communities
Issued: 18 July 2003
Reviewed: 1 January 2010
Every day in schools, institutes, districts, state offices and other areas of the Department of Education and Communities, people acting on behalf of the Department take decisions which affect the rights, interests or legitimate expectations of individuals. All members of the education and training community have a basic right to expect they will receive procedural fairness in their dealings with authority. Similarly, it is appropriate that they will act fairly when dealing with others.
These notes are intended to provide guidance to all departmental representatives and officers exercising statutory power or authority.
Procedural fairness, also known as natural justice, is generally recognised as having two elements.
1. The right to be heard, which includes:
- the right to know the purpose of the particular decision making process and the consequences that flow from it
- the right to know the way in which the issues will be determined
- the right to be fully informed of the allegations and of any other information which will be taken into account in making a decision
- the right to have a reasonable opportunity to respond to the allegations and any other information that will be taken into account in making a decision
- the right to an appeal
2. The right of a person to an impartial decision, which includes:
- the right to impartiality in the investigation and decision making process
- the right to an absence of bias in the decision maker:
Departmental representatives and officers should have regard to any departmental or TAFE NSW policies, procedures or statutory provisions that may have particular application to a given situation. They should also be mindful of the need to take into account only those matters that are relevant to the issue.
It is generally preferable for the functions of investigating and decision making to be carried out by different people. If one departmental representative or officer is conducting both the investigative and decision making stages, he or she must be particularly careful to be seen as reasonable and objective. Ultimately, the decision maker must act justly and be seen to act justly.
The availability of a line of appeal adds to the fairness of the process and offers a check in case there is a perception of a conflict of interest.
Prior to any decision being made in respect of an issue which may result in a detriment to a person, it is appropriate to provide that person with sufficient details to enable them to provide a meaningful response. Depending on the circumstances, this may involve providing copies of any relevant statements or details of what is contained within those statements.
Departmental representatives and officers should also ensure that persons who are required to answer allegations against them have a clear understanding of the issues and process involved. This may require the use of interpreters or support persons to assist.
In undertaking investigations and making decisions, departmental representatives and officers should be aware of any time frames imposed by policies, guidelines or statutory provisions. In the absence of any such time frames, a time frame should be determined by the senior officer that is reasonable having regard to the circumstances. If for any reason a time frame cannot be met, it is important that persons affected are advised and given details of when the relevant decision or action will be completed.
Reasons should be provided as to why a particular decision has been made. Reasons should include relevant details of the evidence or relevant details of other material upon which the decision is made and the rationale for preferring that evidence over other material.
In summary, departmental representatives and officers dealing with matters that affect the rights and interests of individuals should:
- comply with any relevant policy, guideline or statutory provision applicable to a given situation
- advise the person affected of the reasons for the decision making process and the consequences that flow from it
- provide the person with full details of the issue which may result in a detriment to that person and give them reasonable opportunity to submit a meaningful response
- provide the person with full details of any other matter that will be taken into account in arriving at a decision and give them an opportunity to respond
- make an impartial decision
- provide reasons in support of any decision made
- provide the person with details of any appeal rights that may exist and how to exercise those rights.
Commissioner for Vocational Training