It was unfair to me It was unfair to me External Student re Assessment by Marker who had never met the student. External Student re Assessment by Marker who had never met the student. I was denied natural justice I was denied natural justice Student whose request to enrol cross-institutionally in a core unit was refused. Student whose request to enrol cross-institutionally in a core unit was refused.

The student can read the policy for him/herself …if we inform him/her about an option that is open to them it’s unfair to the others The student can read the policy for him/herself …if we inform him/her about an option that is open to them it’s unfair to the others Adminstrative officer employed in Faculty Office Adminstrative officer employed in Faculty Office We complied with the procedure set down that’s all we have to do isn’t it? We complied with the procedure set down that’s all we have to do isn’t it?

Principles of Natural Justice In application to decisions at University Eilis S Magner, UNE

Outline What is natural justice? What is natural justice? Scope of the duty to afford natural justice Scope of the duty to afford natural justice Manner not Content Manner not Content UNE Ombudsman Guidelines UNE Ombudsman Guidelines Hearing Rule Hearing Rule Bias Rule Bias Rule Irrelevant considerations Irrelevant considerations

What is natural justice? The rules of natural justice … require that persons be afforded a fair and unbiased hearing before decisions are taken which affect them. The rules of natural justice … require that persons be afforded a fair and unbiased hearing before decisions are taken which affect them. That principle is not in doubt … (it is) shared by all democratic societies and probably all systems of (law) That principle is not in doubt … (it is) shared by all democratic societies and probably all systems of (law) Aronson and Dyer: Judicial Review of Administrative Action Aronson and Dyer: Judicial Review of Administrative Action

Scope of the duty to afford natural justice Depends on Depends on Nature of right affected Nature of right affected Width of power/ discretion conferred Width of power/ discretion conferred Seriousness of effects Seriousness of effects Decisions by universities Decisions by universities Affect rights to have effort rewarded, Affect rights to have effort rewarded, entrance to careers, entrance to careers, future livelihood future livelihood

Manner not content Procedure concerns the … steps taken in arriving at a decision; substance concerns the content of the decision Procedure concerns the … steps taken in arriving at a decision; substance concerns the content of the decision The role of the UNE Ombudsman in dealing with complaints relating to matters of academic judgment is to determine whether the correct procedures have been established and followed. In no circumstances will the UNE Ombudsman purport to exercise academic judgment. The role of the UNE Ombudsman in dealing with complaints relating to matters of academic judgment is to determine whether the correct procedures have been established and followed. In no circumstances will the UNE Ombudsman purport to exercise academic judgment. UNE: University Ombudsman clause 3.2 UNE: University Ombudsman clause 3.2

Complaint Where a UNE Ombudsman has jurisdiction under this clause, the UNE Ombudsman has authority to investigate complaints and to report on whether the appropriate process and procedures have been established and followed and to make recommendations as to possible improvements in process and procedures. Where a UNE Ombudsman has jurisdiction under this clause, the UNE Ombudsman has authority to investigate complaints and to report on whether the appropriate process and procedures have been established and followed and to make recommendations as to possible improvements in process and procedures.

Self - Interest The complaint shall be dismissed if The complaint shall be dismissed if the complainant has an insufficient self- interest in the matter; the complainant has an insufficient self- interest in the matter; Hypothetical: PVC has responsibility for a particular matter.. It is alleged (by anor) this was not done properly … can PVC obtain action from ombudsman

Hearing Rule Requirements are flexible and depend upon all the circumstances, including Requirements are flexible and depend upon all the circumstances, including Urgency, Cost and efficiency Urgency, Cost and efficiency Legitimate expectations Legitimate expectations Requirements: Requirements: Opportunity to put case (oral/written submission) Opportunity to put case (oral/written submission) Notice requirement – content, period, service Notice requirement – content, period, service Disclosure requirement Disclosure requirement Representation Representation Nature of procedure: adversarial/inquisitorial Nature of procedure: adversarial/inquisitorial Statement of reasons Statement of reasons

Bias Rule Reality and appearance of impartiality Reality and appearance of impartiality No personal interest No personal interest Problem of preconceptions Problem of preconceptions Racism, gender bias, personal friendships or dislikes, work and institutional ties Racism, gender bias, personal friendships or dislikes, work and institutional ties A UNE Ombudsman does not investigate a matter from own faculty A UNE Ombudsman does not investigate a matter from own faculty Prejudgment … original decision maker not to sit on appeal. Prejudgment … original decision maker not to sit on appeal.

Ir/relevant Considerations Applies where decision maker Applies where decision maker Bound to take certain facts into account, or Bound to take certain facts into account, or Forbidden to take others into account Forbidden to take others into account Minister for Aboriginal Affairs v Peko-Wallsend Ltd Minister for Aboriginal Affairs v Peko-Wallsend Ltd This question to be decided by looking at policy / rule conferring the power This question to be decided by looking at policy / rule conferring the power

Classifying Irrelevant Considerations Improper Self-Restraints, ‘fetters” Improper Self-Restraints, ‘fetters” Guidance rules should contain possibility of waiver – late application for extension Guidance rules should contain possibility of waiver – late application for extension Improper External Control - Improper External Control - Improper Purposes eg – credit card case Improper Purposes eg – credit card case