Saeculum: government, law and culture

The ninth commandment states: “You shall not bear false witness against your neighbour” (Exod 20:16; Deut 5:20). Not telling lies is obviously at the core of this commandment. But it also sets out a broader requirement of truthfulness and fairness. A commitment to seeking the truth and adhering to it faithfully in all contexts.

Relevant to this commandment is the question of how we attain truth in a fallen world. No human person has perfect knowledge; people lie, tell part of the truth, understand and recollect things imperfectly, and often further their own agendas when presenting their views.

Fortunately, the Bible sets out relevant principles which speak to how we attain truth in a world of sin and falsehood. Mots obvious is Proverbs 18:17: “the one who states his case first seems right, until the other comes and examines him”. This does not mean that the second person is always right. It simply means that, in order to understand what happened in any given situation, you need to hear both sides. If you fail to do so, you are a fool: “If one gives an answer before he hears, it is his folly and shame” (Proverbs 18:13).

Genesis 3:9 records that, after Adam ate the fruit of the tree of the knowledge of good and evil, God called to Adam, “Where are you?” Presumably, if he is omniscient, God knew the answer to this question, so why did he ask? Early Christian thinkers found in this passage a requirement of due process, believing that Genesis 3:9 was intended to demonstrate “that every defendant must be summoned before he can be lawfully punished. It was a tenet of natural law that no person should be punished or deprived of his basic rights unless he had been summoned and given an adequate opportunity to speak on his own behalf.”

This might seem like fanciful exegesis. It illustrates, however, how deeply rooted the principle of procedural fairness is.

The Mosaic law required judges to investigate accusations thoroughly, and an accused person could only be convicted on the testimony of two or three witnesses: Num 35:30; Deut 13:12–14; 17:4–7; 19:15–21.

A commitment to truth extends well beyond the courtroom. A wise person, a wise parent, a wise judge, and a wise church court will carefully and impartially consider all sides of an issue before reaching a decision: Matt 18:16; 2 Cor 13:1; 1 Tim 5:19.

In short, a commitment to truth requires a commitment to due process both personally and in official decision-making.

These passages can be seen as establishing an embryonic requirement of due process or procedural fairness. That is, it sets out the core principle, which has been fleshed out in more detail in Western systems of law including Australia. Due process or procedural fairness has become a fundamental feature of the Western view of law.

The courts have described procedural fairness as a matter of “fundamental justice”, a “long-established doctrine”, and a “deep-rooted principle of the law”. While procedural fairness in general terms simply means that the process must be fair, important specific aspects of procedural fairness include the following.

Decision-makers must be impartial and free from bias. That is, they must have no personal stake in the outcome of the decision, must not have pre-judged the outcome, and must have no relationship or interest which might sway their decision.

Whenever a government body (whether the courts or the executive) makes a decision which adversely affects a person’s rights, that decision must be made following a fair process, including giving the person affected an opportunity to be heard.

A person against whom charges have been instituted has the right to know the substance of the charges and has a right to respond to those accusations before a decision is made.

Any adverse action must not be taken against a person unless these requirements are complied with.

All government decisions must be based on a careful and impartial examination of the facts, with both sides having an opportunity to be heard, and an adverse finding should only be made against someone on the basis of reliable evidence. 

Due process is a required feature of judicial and administrative decision-making in Western legal systems: in Australia, it is unlawful for governments to make decisions without following procedural fairness.

Procedural fairness is a deeply rooted value in Australian law. In all legal proceedings there is a process which involved identifying the precise nature of the charges or allegations and the evidence to be relied upon in a case as early as possible in the process, and a structured and mandatory process for resolving the dispute or trial. The purpose of this is to afford procedural fairness to a person accused of a crime, narrow the issues for decision as early as possible, and aid in the timely resolution of matters.

Procedural fairness is a principle of statutory interpretation. Even where a statute does not expressly require due process, the courts will interpret the legislation so as to include a requirement of procedural fairness. The courts presume that a statute “does not intend to deny natural justice to the citizen”, and clear words are need to displace such a presumption (Disorganized Developments Pty Ltd v South Australia (2023) 97 ALJR 575).

The High Court has held that “as a matter of statutory construction, the common law usually will imply a condition that a power conferred by a statute on the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power” (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421).

Procedural fairness is a requirement of administrative decision-making under Australian law. If a executive decision-maker makes a decision without following a fair process, the decision is unlawful and may be set aside by the courts.

This means that whenever action is taken against a person which adversely affects the person’s interests, the requirements of natural justice apply, regardless of whether those proceedings are characterised as “administrative” or “judicial”. Therefore, the person must be made aware of the nature of the allegations made against him, and given an opportunity to respond to those allegations.

Procedural fairness is also a requirement of Australian constitutional law: the High Court has held that it is a defining feature of all courts in Australia that they make decisions in a procedurally fair manner. Courts cannot be required or even permitted to make decisions in an unfair manner (Condon v Pompano Pty Ltd (2013) 252 CLR 38; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319). This is surprising, because nothing in the Constitution expressly requires this, and the High Court is very cautious about drawing implications like this. This demonstrates how deeply rooted due process is in our legal system.

To put the point another way, the courts will strain a gnat and swallow a camel in order to find that the requirement of procedural fairness applies.

And yes, you do need to afford procedural fairness when investigating allegations relating to children: see page 29 of this document.

In summary, it is a basic requirement of justice that, before making a decision that detrimentally affects a person’s interests, you give the person an opportunity to respond to the allegations made against him/her. This is a basic and fundamental requirement of Australian law. It is a basic biblical principle. It is an obvious feature of wisdom. This is an overriding standard of justice and failure to adhere to it is unfair and unjust.