Why You Should Watch Football

Bruce Malcolm Reid is a doctor contracted to the Essendon Football Club as the “Club Doctor”. He is bringing a case against the Australian Football League to require it to have an independent party hear allegations against him that assert he breached the Australian Football League Rules.

In his writ filed before the Supreme Court of Victoria, Dr Reid’s counsel say that charges were laid against Dr Reid by the Australian Football League: namely for engaging in “conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or bring the game of football into disrepute”. The Essendon and others associated with the circumstances leading to the charges laid against Dr Reid have resolved matters with certain agreed admissions being acknowledged, fines, bans and a range of penalties.

The issue for your organisation is “Can I keep my disciplinary processes out of the Court?”

The short answer to that is “No”, as the Court bows to no-one (allowing the full appellate process to be followed). But following the Dr Reid Saga will be educational for many, as it moves to a hearing in two weeks’ time. The real issue here is what issues of bias arise when you apprehend a code breach, assess and, investigate conduct, decide that a contravention may have occurred, and then preside over determining what penalty should apply.

In the course of our work we assist our clients with a range of code compliance issues, whether that is in the course of personal behaviour, employment, advertising in breach of codes, industry rules in the course of conduct, marketing safety or other compliance, as well as professional and educational accreditation standards compliance. These matters have much in common with Dr Reid’s case (‘the Dr Reid Saga’). Much is also is about sustaining industry self-regulation by ensuring the process has integrity, and that the reputation of the assessing body remain intact.

As you would imagine, Counsel for the Australian Football League delivered Dr Reid a well-crafted and lengthy statement of grounds, articulating the basis on which the AFL apprehended Dr Reid had engaged in “conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or bring the game of football into disrepute”. That ticks part of the first fundamental box in applying “natural justice”:

  • Inform the person whose interests are likely to be affected by any allegations about the allegations; and
  • Provide such person with an explanation as to why the decision-maker is considering making the decision, stating the grounds before the decision maker and an outline of the consequences of an adverse decision; and:
  • Provide such person with a reference to the relevant rule or policy relevant to the allegation and at least an outline of the material evidence that the investigator relies on to support the allegation.

These actions go towards that part of natural justice which requires that people are entitled to know the case against them. The second part of that requirement is that people need to be given an opportunity to respond to the case against them – a fair hearing so to speak.

In the Dr Reid Saga, Dr Reid appears to be objecting to the fact that the Australian Football League is apparently ruling on its own investigation. These concerns arise from the perception of bias – can one party fairly be judge, jury, and executioner?

Is that somehow wrong?

Now those of us minded to look to notions of “Separation of Powers” and “Westminster Justice” can be inclined to burr up at such a French concept as a formal hearing being part of the investigative process: how can an investigation lead to a ‘determination’ at the conclusion of that investigation with no independent judge? But such structures are not only common, but typical and intended, and in the realm of bodies who seek to regulate their own affairs, highly desirable.

So, how do you achieve such an outcome? Any regulating body whose actions stand to unfavourably affect the rights and interests of an organisation or a person, should expect the scrutiny of the Courts in dispensing their “justice”.

But the role for society’s ultimate scrutineer (the courts) can be mitigated, reducing that to considerations of whether the rules were properly applied and cases of actual bias, oppression, fraud and other like malfeasance. But this reduction can only through clear drafting of the rules of engagement in the disciplinary processes.

Getting the rules “right” is particularly important for those bodies who administer industry regulatory schemes and professional or educational accreditation processes – particularly where an aspect of public policy is being fulfilled.

Where a member of your organisation or a member of the public has a legitimate expectation that the rules of natural justice and fairness will apply, then a range of (judicial)rules (‘the Rules’) regulating behaviour, will, in all likelihood, apply to the inquisitorial and decision-making processes at all stages of the decision making path. These rules can apply to all sorts of processes and decisions from admission to membership through to expulsion and everything in between.

The Rules are about openness, fairness, participation, accountability, consistency, rationality, legality, and impartiality.

The Rules, in addition to requiring that persons be afforded natural justice (otherwise known as procedural fairness) in relation to decisions that adversely impact on their rights provide that a person aggrieved by a decision may apply to the Court for an order of review in relation to the decision on any one or more of the following grounds:

  • that a breach of the rules of natural justice happened in relation to the making of the decision;
  • that procedures that were required by law to be observed in relation to the making of the decision were not observed;
  • that the person who purported to make the decision did not have jurisdiction to make the decision;
  • that the decision was not authorised by the rules under which it was purported to be made;
  • that the making of the decision was an improper exercise of the power given by the rules under which it was purported to be made;
  • that the decision involved an error of law, whether or not the error appears on the record of the decision;
  • that the decision was induced or affected by fraud;
  • that there was no evidence or other material to justify the making of the decision; or that
  • that the decision was otherwise contrary to law.

The reference to an improper exercise of a power includes a reference to taking an irrelevant consideration into account in the exercise of a power; failing to take a relevant consideration into account in the exercise of a power; an exercise of a power for a purpose other than a purpose for which the power is given or in bad faith; an exercise of a personal discretionary power at the direction or behest of another person; an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power or in such a way that the result of the exercise of the power is uncertain; and any other exercise of a power in a way that is abuse of the power.

If the rules of engagement in the decision-making or disciplinary process do not clearly exclude these rules or principles[1], then the Rules clearly delineate how those processes are intended to work – and you may become exposed to vagaries of competing case law.

Our strong recommendation is that if the rules surrounding your business’ processes and decisions are likely to be subject to challenge, you should delineate in clear terms how they will apply – control them, so that the disgruntled accused does not derail your processes.

It the person or body undertaking an investigation is the same person or body making the finding, then spell it out, as was the case with the case of Cynthia Weinstein v Medical Practitioners Board Of Victoria [2008] VSCA 193. If the body hearing the matter is entitled to make its own inquiry, then specifically ensure that you make allowance for that in the rules. If rules of evidence and burdens of proof are not to apply, then say so.

Regulatory committees are rarely intended to operate “judicially”, by which I mean to assess the competing adversarial submissions of the advocates before it, not looking beyond the submissions made, being bound by rules of proof. If your committee is not intended to be that way, then, once again, you need to say it.

If your rules are clear about how the process will apply, then you have the best chance of fending off the challenges that are entirely process-based; the question of “bias” must then devolve to whether the decision-making panel had acted in such a way that

a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the tribunal] might not bring an impartial and unprejudiced mind to the resolution of the question in issue[2]

and that, would be left as a question of fact, not a question of process and then the decision ought to be upheld, if fair weight is given to all the material before the decision makers.

Apart from the matters referred to above, core considerations in the application of “natural justice” include:

  • Entitlement to representation for the “accused”;
  • Reference to information or evidence of which the accused might not have prior notice;
  • Assessment of standards of performance or compliance by a third person;
  • Manner by which the “accused” can put their case;
  • Whether “reasons” for a decision must be published[3]

And whilst Dr Reid may resort to the Magna Carta that No freeman shall be taken or imprisoned ruined or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.[4]

He might find he has submitted to a system and process that adequately provides for him, to be exhausted before the law will interfere with what he has agreed.

By Mark Love, Legal Director and Accredited Specialist in Business Law.

[1] And the circumstances are such that the rules of natural justice can be excluded at all.
[2] Webb v R (1994) 181 CLR 41 at 67 (Deane J)
[3] Noting that integrity of the decision making process suggests that giving reasons is prudent in many circumstances
[4] J C Holt, Magna Carta (2nd Ed, Cambridge University Press, 1992) at 461