What is procedural fairness?
Procedural fairness, sometimes referred to as natural justice, is a legal principle that helps ensure administrative decisions are made fairly, impartially and without bias.
Where procedural fairness applies, it must be afforded for the decision to be legally valid. A decision that a person has engaged in corrupt conduct is one that attracts procedural fairness obligations.
Procedural fairness requires that:
- a decision-maker is impartial and free from actual or apparent bias (the bias rule).
- a person whose interests will be affected by a proposed decision receives a fair hearing, including the opportunity to respond to any adverse material that could influence the decision (the hearing rule).
- findings are based on relevant and logical evidence which supports the allegation (the evidence rule).
In most cases, procedural fairness obligations apply to people whose interests may be adversely affected by a decision, rather than to people who report concerns or provide evidence as witnesses.
Procedural fairness is built into the NACC's investigation process.
When does the NACC provide procedural fairness?
The NACC Act requires the NACC to provide procedural fairness before we:
- include an opinion, finding or recommendation that is expressly or impliedly critical of a person in an investigation report
- publish an investigation report which contains an opinion, finding or recommendation that is expressly or impliedly critical of a person
- publicly disclose information that contains an opinion, finding or recommendation that is expressly or impliedly critical of a person
- make a comment on, or additional recommendation in relation to, a report on the completion of an investigation from a Commonwealth agency, state or territory government, or other person.
Investigation reports
If the NACC is considering making a finding, opinion or recommendation in an investigation report that is critical of a person or agency, the NACC must give the person or agency head an opportunity to respond.
This extends to any potential opinion, finding or recommendation that is expressly or impliedly critical of a person.
The NACC must provide the individual with:
- a statement setting out the potential critical opinion, finding or recommendation, the reasons it is under consideration and a summary of the evidence that supports it
- a reasonable opportunity to respond.
If the individual or head of the agency or entity responds, the NACC must consider the response before deciding whether to include, amend or exclude the critical opinion, finding or recommendation.
Public disclosure of information
The NACC is lawfully permitted to publicly disclose information in limited circumstances, including through a public statement.
If the proposed disclosure contains an opinion, finding or recommendation that is expressly or impliedly critical of a person, entity or agency, they must be given procedural fairness before any disclosure, including an opportunity to comment.
As with the investigation report process, this will usually involve providing the individual or agency with:
- a copy of the proposed disclosure
- a reasonable opportunity to respond.
If the individual or agency head provides a response, the NACC must consider the response and make a decision whether to proceed with the disclosure as proposed, in an amended form, or not at all.
Agency completion reports
If the NACC is considering making a critical comment on, or recommendation in relation to, a report by a Commonwealth agency about the completion of an investigation conducted by the agency, the NACC must give the head of the agency or entity (or person representing them) an opportunity to make submissions about it.
What is not required by procedural fairness?
In relation to a person whose conduct has been referred to the Commission, the NACC is not required to:
- inform them when a referral is received or an investigation commences
- tell or consult them about whether, or how, the NACC conducts a preliminary investigation or corruption investigation
- disclose the identity of the person who made the referral
- notify them about an allegation that the NACC decides not to investigate or decides does not raise a corruption issue.
Procedural fairness:
- does not apply to decisions whether or not to commence an investigation
- does not entitle a person who refers a matter to the NACC to be consulted about whether or not an investigation is commenced or the conduct of the investigation.