Procedural fairness in the Department of Education, legal issues bulletin 3, LIB03 LIB3. This advice was last reviewed in June 2012.
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Every day in schools. districts, state offices and other areas of the department, people acting on behalf of the department take decisions which affect the rights, interests or legitimate expectations of individuals. All members of the education 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.
Occasionally organisations and agencies monitoring the actions of the department have the view that officers have come to a decision without taking account of relevant material or affording individuals the appropriate opportunities to respond to allegations made against them. These situations not only relate to the treatment of students by staff but also involve staff making decisions about other staff.
These notes are intended to provide guidance to all departmental officers exercising statutory power or authority, including principals and state office staff.
Procedural fairness, also known as natural justice, is generally recognised as having two elements.
The right to be heard
- 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
The right of a person to an impartial decision
- the right to impartiality in the investigation and decision-making process
- the right to an absence of bias in the decision maker.
Practical implications for departmental staff
Department officers should have regard to any departmental 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.
Can one person investigate and make the final decision?
While it is generally preferable for the functions of investigating and decision making to be carried out by different people, in small schools this may not always be possible. If one member of staff 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 to a more senior officer adds to the fairness of the process and offers a check in case there is a perception of a conflict of interest.
Information required prior to making a decision
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.
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, principals 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.
Giving reasons for any decision made
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, principals or other members of staff dealing with matters that affect the rights and interests of persons associated with the department or a government school 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.