Audi Alteram Partem
Chapter Twenty
Syllabus topic 2.3, "Audi Alteram Partem"
Pages 117 to 122 of 396
In one line
Before an authority decides against you, it must tell you what is alleged and let you answer.
In the words a student can write in an exam: audi alteram partem means "hear the other side", and it requires that a person whose rights or interests are to be affected by a decision be given notice of the case against him, disclosure of the material on which it is based, and a fair opportunity to answer it before the decision is taken. Its content is not fixed: it varies with the nature of the decision, the gravity of what is at stake and the framework of the statute, and it may extend to an oral hearing, legal representation and cross-examination where those are necessary for a fair decision.
The two limbs
The rule has two parts, and an answer that gives only the second is incomplete.
1. Notice. The person must be told, before the decision, what is alleged against him and what is proposed. 2. Hearing. The person must be given a real opportunity to answer.
Notice without a hearing is useless, and a hearing without notice is a trap: a person who does not know what is alleged cannot answer it.
Limb 1: notice
Notice must satisfy four requirements.
It must be given before the decision. Notice after the event is not notice at all, subject only to what is said in [Post-Decisional Hearing].
It must be adequate and specific. A notice saying that the recipient's conduct "has been found unsatisfactory" tells him nothing. It must state the specific charge, the grounds relied on and the action proposed, so that he knows both what to answer and what he stands to lose.
It must give reasonable time. A notice requiring an answer within twenty-four hours to a charge covering three years of accounts is not a real opportunity.
It must disclose the material. A person cannot answer evidence he has not seen. Where the authority proposes to rely on an inspection report, an audit note or a complaint, the substance of it must be disclosed. This is the point on which administrative decisions most often fail: the authority hears the person but decides on a file he has never seen.
Limb 2: the hearing, and what it contains
The content varies, and the variation is the whole difficulty. The elements that may be required are these.
| Element | When it is required |
|---|---|
| Written representations | Almost always the minimum |
| An oral hearing | Where facts are disputed, credibility is in issue, or much is at stake |
| Disclosure of adverse material | Always, where the authority relies on it |
| Evidence to be taken in the person's presence | Where an oral inquiry is held |
| Cross-examination | Where the decision turns on the truthfulness of a witness |
| Legal representation | Not as of right; ordinarily where the matter is complex, or the other side is represented, or the consequences are grave |
| A decision by the person who heard | Where the hearing is oral, the one who hears should decide |
| Reasons | See [Reasoned Decisions] |
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