Procedural fairness requires public servants to make reasonable, fair, just and transparent decisions. The three central rules of procedural fairness are:

the hearing rule;
the bias rule; and
the no evidence rule.

Hearing Rule

The person whose interests will be adversely affected by a decision should be given the opportunity to be heard and to hear the case made against them. This principle is reflected in a number of the provisions of the Patents Act, for example reg 22.22, that allow for the hearing of a party before the Commissioner. Note that the right to be heard does not always mean a right to an oral hearing (Ashmore v Commissioner for Superannuation (2000) 62 ALD 97 at [58]), however the Act generally provides that opportunity.

The hearing rule also encompasses other issues related to the preparation of a party’s case including:

Allowing sufficient time for a party to prepare.
Giving sufficient time for a party to respond to new evidence or material, including matter raised by hearing officers from their own investigations or technical knowledge.
Accommodating the limited knowledge that a party may have of proceedings before the Commissioner, e.g. unrepresented parties.

Bias Rule

Bias may be actual or perceived and may arise in the decision maker’s personal circumstances or in the conduct of proceedings. Actual bias generally requires a party to prove a decision maker was actually prejudiced against them and failed to give proper consideration to the facts relevant to the decision. Apprehended (perceived) bias relates to whether there is some circumstance or conduct involving the decision maker that might undermine public confidence in the administrative process.

The test is whether a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63).

Apprehended bias might arise in the following circumstances:

A hearing officer has a social or personal relationship with a party or witness.
A hearing officer has a financial interest in a party or in a matter under consideration, e.g. a directorship or shareholding.
A hearing officer has preconceived views of a matter relevant to the matter under consideration
A party or witness communicates separately with the hearing officer outside of established procedures (see 7.8.2.3 Contact with Parties Outside of Hearing).

When allocated a case, hearing officers should consider the possibility of an apprehension of bias and, if appropriate, disqualify themselves at an early stage to enable the case to be reassigned. A common example is where the hearing officer has previously been involved in the examination of the application. However, this does not automatically disqualify that person from hearing the case (see 7.8.4.4 Bias as a Result of Other Proceedings Involving the Same Parties).

If proceeding with the case, the hearing officer must disclose to the parties any matter that might give rise to an apprehension of bias and invite submissions on whether the issue of disqualification arises. Where an objection is raised only after the decision is issued, see 7.8.4.2 Waiving of Objection of Bias by Standing by until Decision Issued.

In any event, hearing officers must approach proceedings with an open mind and avoid any conduct that suggests that they have prejudged that matter or are biased in favour of a particular party.

No Evidence Rule

This rule requires decisions to be made upon findings of fact which are based on logically probative material (see, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321).

Amended Reasons

Amended Reason	Date Amended
	18 Oct 2023