By Eden Inglis, Graduate, and Sonya Parsons, Partner
Maintaining procedural fairness in administrative decision making can be challenging, particularly where decisions often adversely affect an individual’s rights, interests or professional standing. The recent decision of the Supreme Court of New South Wales in Albaf v NSW Education Standards Authority [1]sheds light on the obligations of institutions to exercise any decision-making power in accordance with the principles of procedural fairness.
The case concerned Sheikh Albaf, the Principal of New Madinah College, who came under significant public and media scrutiny in late 2025 following a series of political views he expressed on Instagram and Facebook. In response, the NSW Education Standards Authority (NESA) initiated an investigation. The Senior Inspector’s report informed the view of NESA’s Registration and Accreditation Committee (the Committee) which subsequently determined that Sheikh Albaf was not a “fit and proper” person pursuant to section 47(1)(b) of the Education Act 1990 (NSW).
Sheikh Albaf commenced proceedings against NESA and the Minster for Education and Early Learning (Minister) claiming that the Committee denied him procedural fairness before reaching its determination.
Acting Justice Schmidt found that the Committee had denied Sheikh Albaf procedural fairness by failing to provide him with a reasonable opportunity to make representations on the matter before the determination was reached. The Court set aside the Committee’s determination that Sheikh Albaf was not a fit and proper person.
The decision serves as an important reminder for non-government schools and other educational institutions that decisions which may adversely affect an individual’s reputation, professional integrity and future employment prospects must reflect principles of procedural fairness. Adopting procedures that ensures individuals are provided with the right to be heard and to have their decision determined by an impartial decision maker is critical to minimising risk that decisions are later challenged through administrative review proceedings.
Non-government schools and other educational institutions make decisions daily that may have an adverse impact on a person’s rights and interests. In these circumstances, it is critical that any allegations or concerns are investigated thoroughly, objectively and fairly before a determination on the matter is reached. In NSW, non-government schools’ policies relating to discipline of students must be based on principles of procedural fairness as part of their registration requirements.[2]
From a practical viewpoint, procedural fairness may be compromised where the investigator and decision-making roles become blurred, creating uncertainty as to whether the ultimate decision-maker acted reasonably and objectively in reaching a final determination.
To minimize this risk, schools should adopt a two-stage approach when dealing with matters that may result in adverse findings. The first stage should involve an impartial investigation or fact-finding process, while the second stage should involve an independent assessment of the material and the making of the determination. Where practical, these functions should be undertaken by different individuals.
In Albaf, the Court concluded that the Committee had adopted the Senior Inspector’s opinion that
Sheikh Albaf was not a ’fit and proper’ person without giving the College or Sheikh Albaf notice of the adverse material and an opportunity to respond before such determination was reached.[3]
In practice, individuals who are likely to be affected by an adverse decision must be given a reasonable opportunity to review the material gathered by the investigator and respond within an appropriate time frame. It is critical that the material is disclosed to relevant parties and the affected person is given the chance to comment or respond to the allegations and material under review.
The key takeaway from Albaf is that a final determination should not be made until the matter has been formally investigated and the affected person(s) has been afforded an appropriate opportunity to respond to the allegations and material.
The decision in Albaf demonstrates that procedural fairness must underpin all aspects of administrative decision making. It stands as a timely reminder that decisions of regulatory bodies can be challenged if the principles of procedural fairness are ignored or overlooked during the decision-making process.
[2] S47(1)(h) Education Act 1990 (NSW)
[3] At [21].
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