It was unfair to me External Student re Assessment by Marker who had never met the student. I was denied natural justice

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

2. 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 • We complied with the procedure set down that’s all we have to do isn’t it?

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

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

5. 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. • 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

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

7. Manner not content • 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. • UNE: University Ombudsman clause 3.2

8. 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.

9. Self - Interest • The complaint shall be dismissed if • 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

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

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

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

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