14.18 The duty of fairness in proceedings has no fixed content. The fairness of the proceedings depends on the nature of the issues in dispute and what would constitute a reasonable opportunity for the parties to present their arguments in the relevant circumstances. Mason J. stated in Kioa v. West that “the expression `procedural fairness` .. conveys the notion of a flexible obligation to adopt procedures that are fair, appropriate and appropriate to the circumstances of the case”. [26] In re Minister for Immigration and Multicultural Affairs; Ex parte Lam, Justice Gleeson emphasized that “fairness is not an abstract concept” and that “the concern of the law is to avoid practical injustice.” [27] Notice is the obligation to inform a person of a court case that affects their rights or interests once the case has been initiated. The communication must give someone a reasonable opportunity to present evidence and arguments and respond to opposing parties. Periods of notice are often set out in the rules governing the procedure of an administrative authority.

The obligation to report properly continues to exist. A party whose rights or interests are at stake must be informed of all relevant issues raised before and during the hearing in order to participate meaningfully in the proceedings. A free online course on procedural fairness is now available If procedural fairness has been rejected, the decision made is invalid, regardless of whether the decision itself is the right or the most preferable. Administrative decision-makers are required to ensure procedural fairness for an individual before making a decision that infringes with his or her rights, interests or legitimate expectations. Administrative decisions are decisions made by government agencies, such as visa application decisions, housing application decisions, central relationship issues, and tax matters. Conversely, where the decision is likely to have particularly serious consequences for those affected, very detailed procedural fairness requirements must be met. Ibid. [88]. On appeal, the Full Court concluded that the balancing exercise carried out by the trial judge was correct: Leghaei v Director-General of Security [2007] FCAFC 37 (23 March 2007) [51]–[55]. See also applicant M47/2012 v Director General of Security (2012) 251 CLR 1. The situation of a non-citizen affected by an adverse security assessment has been described as a “legal black hole”: the person is “unable to know the facts of which he or she is accused and therefore unable to effectively challenge unknown allegations; have no right to examine the merits thereof; and enjoys only a legal fiction of judicial review”: Ben Saul, “Fair Shake of the Sauce Bottle” [2012] Alternative Law Journal 221, 222.

A number of submissions addressed procedural fairness issues related to adverse security assessments: Civil Liberties Tips, Brief 142; New South Wales Legal Aid, Deposit 137; Australian Refugee Council, Model 41; Human Rights Law Centre, brief 39; Gilbert and Tobin Centre of Public Law, deposit 22; UNSW Law Society, Submission 19. 14.16 The courts have held that the obligation to ensure a fair trial may be implicitly excluded if it is incompatible with the proper functioning of the relevant legal provisions. [21] We strive to help judges and courts implement policies and practices that promote procedural fairness in courtrooms and courthouses. In addition, we are looking at policing, which is currently at the heart of most criminal justice research, on procedural fairness, but we continue to focus on the courts. What is required in the interests of procedural fairness depends on the nature of the issues in question. Parties must always have a reasonable opportunity to present their case, and what constitutes a reasonable possibility depends on the circumstances. What makes an administrative procedure procedurally appropriate varies from one administrative body to another. The following are examples of what may be required for an administrative procedure to be procedurally fair. 14.23 Weighing issues to determine what fairness requires in a particular case can significantly reduce the content of procedural fairness. This may be the case, for example, when national security issues arise.

In Leghaei v. As Chief Security Officer, the Federal Court of Justice has considered the duty of procedural fairness in the performance of an “adverse security assessment” by the Australian Security Intelligence Organisation (ASIO). [40] 14.12 In determining whether there is a denial of procedural fairness, the courts will consider two issues: 14.13 In 2015, the High Court succinctly stated that “in the absence of a clear and contrary legislative intent, administrative decision-makers must ensure procedural fairness for those affected by their decisions.” [15] Administrative decision-makers must make decisions that demonstrate that they have meaningfully addressed the parties` key issues and concerns. The reasons should address the issues to show that the decision-maker listened to the parties. [5] *In Newfoundland and Labrador Nurses` Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the Supreme Court of Canada stated that reasonableness is no longer a question of fairness, but is taken into account in determining whether a decision is appropriate. Sometimes unforeseen events occur that prevent you from attending a hearing or meeting certain deadlines required in your administrative procedure. While there is generally no guarantee that you will have more time to hold your hearing or meet your deadlines, most courts have the discretion to give you additional time or postpone the hearing in extreme circumstances. If you ask for an extension and the decision-maker does not grant it, depending on the circumstances, this may constitute a breach of procedural fairness. The concept of procedural fairness stems from two common law principles: a decision-maker should not judge his or her own case or have an interest in the outcome, and a decision-maker should hear both sides of a case before making a decision. Procedural fairness is not whether the outcome of the decision was fair, but whether the trial was fair. If the procedure was unfair, you may be able to apply to a court for judicial review of the administrative decision.