Due process and fair procedure may not seem like exciting or important areas of law, but actually they weave through pretty much everything that we do.  In this case there is a potential financial penalty to property owners because they followed what they thought was a law allowing them to clear their land.  As the Court has ruled that this law was never valid, it is in a sense 'retrospective' and so what these people did is now illegal.



What is due process?

Other countries have the concept of due process or a fair hearing enshrined in their Constitution or Magna Carta, in Australia this is a common law right and therefore subject to a greater degree of interpretation.  It can also be referred to as natural justice or fair hearing.  The names probably give you a hint of what they mean.


According to the Law Society of NSW, the term natural justice means:

A common law duty to act fairly in the making of administrative decisions which affect a person’s rights, interests and legitimate expectations. The legal doctrine of procedural fairness has two principal limbs: decisions by public officials should be made in an unbiased manner (the bias rule) and those affected by such decisions should be given an opportunity to participate in the decisions that affect them (the hearing rule). In Australia the right to "due process" or procedural fairness is not constitutionally guaranteed. However, it can be abrogated only by a clear statement of intent.



What does it have to do with trees?

The NSW Government passed legislation without complying with all of the laws regarding the passing of that particular category of legislation.  This is not the first time that the government has done this.  The Nature Conservation Council fought the legislation in the Land and Environment Court, the group argued in court that the codes were invalid because Primary Industries Minister Niall Blair did not reach an agreement with Environment Minister Gabrielle Upton.  As this was a legal requirement the legislation was set aside. 


You cannot retrospectively fix the issue when the problem is a failure to observe due process.  The Primary Industries Minister could not go and get agreement from the Environment Minister.  They would need to start again with new legislation.  Whether or not that legislation can be retrospective is a separate question, but when it comes to due process you either followed the correct procedure or you didn't.



Who is impacted by due process?

In short, everybody.  Unless there is very specific legislation releasing you from it you are bound by the requirements of due process.  Often small organisations make the mistake of believing that these laws don't impact them, usually on the basis that they are just a small organisation and not the Parliament or a Court or a large business.  We have seen this line of reasoning many times, and groups who convince themselves of this expose themselves to litigation because they refuse to comply with the requirements of due process.


What is most frustrating about this is complying with due process is actually fairly simple and usually costs you time, but not money.  The most common transgressions revolve around committees or organisations not following their own rules.  Indeed, in this case Parliament made the rules that they didn't follow, so this is another example of this problem. Committees and organisations need to be aware of this when they write the rules, and later when they seek to apply the rules.  If you have made a rule that something needs to be done within three days then it needs to be done within three days, if that is too quick then change your rules.  Often the rules are written with some ideological reasoning, such as we would like this dealt with quickly, rather than asking the practical question of whether or not volunteers or the employees really will deal with the issue within three days.



What should I do?

If you believe that an organisation has not dealt with you fairly, that they have not followed their own rules or given you a fair hearing, you should come and speak with Bruce Coode about this.  He is an expert in administrative law, he has been dealing with it for over forty years, and this is not an area of law where people should dabble.  We are often confronted by well meaning lawyers who practice in other areas of law, who are sitting on a board or otherwise helping out, and they simply don't understand what we are saying about administrative law until they get their own legal advise from an administrative lawyer.  Speak to Bruce and he will be able to indicate whether it is worth further investigating your matter.

Bruce Coode