Procedural fairness in enforcement matters: Defendant’s understanding
Defendant’s right to procedural fairness
Unless stated otherwise in legislation, Defendants have a right to procedural fairness in administrative decision-making and Court proceedings. Procedural fairness is founded on the notion of a fair trial and it necessarily requires concepts such as access to information, public accountability and independent and impartial decision-makers.
Procedural fairness is fundamental to the interests of justice. In Kioa v West, ‘procedural fairness’ was interpreted as a flexible obligation for adopting fair and appropriate procedures that suit the individual circumstances of each Defendant.[1] Relevantly, this includes the concept that amenable discretion (such as that exercised by a Judge or Council) may be implemented to maintain fair and balanced outcomes.
Procedural fairness requires a Defendant to understand
In order to achieve procedural fairness, a Defendant must be able to understand the complaint against him or her. This can include understanding administrative or judicial procedures, the legal framework and the facts upon which a decision or action is being made.
Crucially, limited English proficiency or a lack of legal representation may present significant barriers to a Defendant’s understanding of the matter. In DZAAA v Minister for Immigration and Citizenship, the Federal Circuit Court found that :
“ [The] object [of open justice] cannot be achieved, and justice cannot penetrate, into a world where an applicant sits hearing but not understanding and has no means of understanding…”[2]
A Defendant with limited English proficiency may require the appointment of an interpreter in Court proceedings, and the failure of a prosecutor or Court to allow this may result in an unfair trial.[3] Relevantly, Courts may delay proceedings to allow for the appointment of an interpreter and will often bear the costs of such appointment where it is in the interests of justice to do so.
Further, allowing a Defendant time to obtain legal advice or representation (including from free community legal centres) ensures that a Defendant may have assistance through a legal process if he or she requires such assistance to sufficiently understand the matter. While parties to proceedings may elect to self-represent, practitioners and prosecuting bodies have an obligation to not exploit a Defendant’s lack of understanding or insufficient financial means to obtain such representation.[4]
Model litigant principles
Councils would ordinarily conduct litigation in accordance with the Model Litigant Principles. The concept establishes a non-exhaustive list of principles that agencies must consider when applying authority. While the principles were never intended to be applied rigidly or to override legislation and governmental functions, they ensure that delegated power continues to fulfill public interests with respect to civil and criminal proceedings. These principles include adhering to acts that consistently apply outcomes, endeavouring to limit legal proceedings by ensuring all appropriate alternative dispute resolutions are considered and financially vulnerable litigants are not exploited where all avenues of support have been attempted.
Council’s requirement to be cognisant of procedural fairness
A failure by a Council to be aware of, and uphold, procedural fairness creates opportunities for appeals in Court proceedings and may not result in a favourable exercise of the Court’s discretion. Such failures may occur before, during, or after proceedings. For example, when undertaking pre-Court enforcement action such as issuing penalty infringement notices or enforcement notices, Council should be aware of any facts or circumstances that may indicate that the relevant Respondent/Defendant does not understand the allegations raised and the required actions to be taken. These circumstances may include a person’s limited English proficiency or an apparent absence of capacity.
Upholding procedural fairness is also consistent with the local government principles of ‘transparent and effective processes’ and ‘good governance of, and by, local government’ contained within the Local Government Act 2009 (Qld).
Key takeaways
Councils and practitioners acting for Councils should take steps to uphold procedural fairness and the model litigant principles in enforcement matters. This includes taking steps in an effort to ensure a Defendant has a sufficient understanding of the matter. Language differences, an absence of legal advice or representation or intellectual impairment may create barriers to such understanding, and appropriate tools should be deployed to prevent compromising procedural fairness in the circumstances. Councils should also be cognisant of these concepts during pre-Court enforcement action.
[2] (2011) 250 FLR 423 at 437 [37].
[3] Ebataninja v Deland (1998) 194 CLR 444 at 454 [26]-[27].
[4] Dietrich v R (1992) 177 CLR 292.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.