Natural justice: a concept that can confuse – Part 3 of MPB News (Term 3 2025)

In this edition, we share Part 3 of the Merit Protection Boards News series, which focuses on the concept of natural justice. 

When complaints and allegations are laid against staff across education settings, the concept of natural justice often attracts swift mention. But what exactly does this legal term mean?

As Merit Protection Boards registrar Greg Donaghue explained, the rule of natural justice requires that a person whose rights or interests may be adversely affected by the exercise of a statutory power be given ‘a reasonable opportunity to be heard’.

“It’s central to the roles of decision-maker and subject, alike, both as a principle and a function,” Mr Donaghue said. “But, at times, it’s misunderstood and taken to mean many other practical things.”

 In broad terms, a reasonable opportunity to be heard entails a person being afforded two key components:

• prior notice of the substance of matters alleged against them;
• a reasonable opportunity to respond before statutory power is exercised. 

    (Note: this does not necessarily require an oral hearing)

In the context of a public official’s investigative powers, Mr Donaghue noted courts had been careful in relaying what the official must do to comply with the rules of natural justice, ensuring any investigation is not compromised or the statutory function frustrated.

He detailed four elements that needed to be upheld to achieve natural justice: a hearing appropriate to the circumstances; lack of bias; evidence to support a decision; inquiry into matters in dispute.

Importantly, he advised there was no universal principle entitling the person being investigated to the following elements: 

• receive notice of an investigation, and its subject matter, at the start of the investigation;
• be informed of the identity of a witness providing evidence or information that was adverse to that person;
• attend when a witness provided evidence or information, or cross-examine the witness;
• receive a copy of any document provided by a witness or a transcript of evidence from a witness;
• be informed during the course of an investigation of a public official’s preliminary views about the outcome of the investigation.

“Awareness among our education stakeholders that these factors are not obligatory is equally critical, given concerns are sometimes raised in MPB hearings that individuals haven’t been afforded natural justice on some of these grounds,”

Mr Donaghue revealed:

“It’s not uncommon for us to hear complaints from appellants, arguing processes had been breached – that they did not receive full records of evidence or documents detailing witness statements,” he said.

During an investigation, a public official may also receive information which is confidential in nature or from a confidential source, and disclosure of such information, or the identity of the source, may have prejudicial consequences.

Mr Donaghue indicated that, in such cases, ‘a reasonable opportunity to be heard’ was often satisfied by providing the person being investigated with the ‘substance’ of any allegations made against them rather than the complete, primary information.

(Extract from Merit Protection Boards News Series Term 3, 2025)