Prisoners are subject to a significant number of decisions during imprisonment, such as decisions on parole, home detention, prison transfers, and alleged conduct breaches. These decisions often require prison authorities to provide procedural fairness to the person subject to a decision.

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Procedural fairness, often called “natural justice”, is a collection of rights, established under common law in Australia around the 1980s. It assists people to achieve fairness when governments make decisions against them and is said to consist of two main rules: the hearing rule, which is discussed below, and the rule against bias.

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The Hearing Rule

The hearing rule consists of three elements designed, essentially, to facilitate engagement in the decision-making process by the person subject to the relevant decision. These parts are:

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Prior Notice

The requirement by the decision-maker to tell the person subject to the decision that a decision will be made.

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Disclosure

The requirement by the decision-maker to disclose any material they intend on considering in making of the decision, especially material that goes against the outcome sought by the person subject to the decision.

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Opportunity to Respond

The requirement to allow a person subject to a decision to make submissions to be considered in the making of the decision, including to provide a response to any material intended to be considered in making
the relevant decision.

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These elements may be discharged differently depending on the type of decision being made. For example, the time frame in which prior notice is given about a pending decision may vary from different types of decisions. This time frame may or may not be determined by the legislation under which the relevant decision is made.

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It is also important to understand that procedural fairness is not required in all government decisions. The right of procedural fairness can be overridden, but only if the relevant legislation clearly states that procedural fairness is not required. For example, section 501(3) and 501(3A) allows the government to cancel a person’s visa for failing a character test without providing procedural fairness.

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What This Means For Prisoners

Participation in decisions is important. It is our opportunity to engage and be heard in decision making processes and to be sure the decision maker has all the relevant information when making decisions.

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A failure to provide any of the elements of the hearing rule may render a decision unlawful or invalid. Decisions believed to be made without procedural fairness can often be challenged through an ombudsman, tribunals, or by judicial review in a Supreme Court. Procedural fairness, like all legal doctrines, can be complex in its application.

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Any person who feels they have been denied procedural fairness should seek legal advice.