You better watch out, You better not cry … Santa Claus is coming to town. He's making a list, And checking it twice, Gonna find out Who's naughty and nice, Santa Claus is coming to town.

So, a white-bearded, patriarchal-like, apparently omnipresent entity is sitting in judgment on the World’s children – deciding who has, or has not, conformed to somewhat vague rules of acceptable behaviour. Those who have complied will be rewarded with gifts within the authority of the entity to bestow, those who haven’t will be punished commensurately.

While the entity is presumably fed information by teams of intelligence operatives – the list-compiling – it is he (it is a he) alone who is judge. There would seem to be great cause for concern that the entity may abuse his enormous power through arbitrary decisions with possibly dire consequences for those reliant on him.

“Ah, but all this is mythical,” I hear you protest. “There is no Santa Claus. The whole tale is but a means to instruct children to behave correctly – to be kind to their fellows and to observe the common courtesies.” No Santa Claus! Have you not heard the story of Virginia?

The state, on the other hand, is unambiguously real. It too is a repository of enormous power, and with its vast resources, it is able to make decisions with serious and potentially life-changing consequences for individuals. Unlike Santa, however, its power is not unconstrained.     

Those who exercise public power must observe procedural fairness – also called “natural justice” – when making decisions which may affect an individual’s rights, interests or status. Justice Mason, in the High Court case of Kioa v West (1985) 159 CLR 550, indicated definitively this was the common law for administrative decisions.

In its judicial function also, the state is required to afford procedural fairness. In the criminal law it is vital to ensuring an accused person receives a fair trial: HM v The Queen [2013] VSCA 100. In civil matters too, a litigant should be provided an adequate opportunity to be heard – “to vindicate his or her rights”: Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367.

Procedural fairness encompasses various practical requirements, including that a  judge may not search for, nor take into account, information not in evidence – a guard against bias. Similarly, it is not acceptable for a court to conduct its own enquiries without the consent of the parties – as that would effectively make proceedings inquisitorial. Santa appears singularly unconcerned about such strictures!

Common law procedural fairness requirements are considered to apply generally to governmental decision-making: Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648. Underlining that procedural fairness is integral to administrative decision-making are those sections of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that provide for review of decisions on grounds of breach of procedural fairness: ss 5(1) and 6(1). Such provisions are also contained in certain State and Territory judicial review statutes.

The rights and interests that must be afforded procedural fairness protection in the exercise of public power are extensive. Instances include the making of security assessments by the Australian Security Intelligence Organisation and decisions relating to pensions, licenses and permits.

If the power exercised by Santa Claus can be relevantly classified as a “public power”, he is the one who “better watch out” if he does not pay heed to procedural fairness in deciding which Australian children are naughty or nice; especially if their rights, interests or status may be consequentially affected.

Procedural fairness is discussed in The Laws of Australia Subtitle 2.5 “Judicial Review of Administrative Action: Procedural Fairness”.

For more information about The Laws of Australia, click here.