Disciplinary Hearings: What is to be Done?
DISCIPLINARY HEARINGS: WHAT IS TO BE DONE?
In the last fifty years there has been a large expansion in the law relating to decision making by disciplinary and other bodies. With this development
has been an evolution in the rules of natural justice. In 1949 it was said with some caution that ‘the requirements of natural justice must depend
on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, and the subject which is being dealt with,
and so forth’.In
1963 in Ridge v Baldwin,
in reversing an English Court of Appeal decision that a Chief Constable had no right to a hearing before dismissal, Lord Hodgson said the features
of natural justice, which stood out were a right to be heard by an unbiased tribunal; the right to have notice of charges of misconduct; and the right
to be heard in answer to the charges. The rights of the individual depend on the character of the decision making body, the kind of decision it has
to make, the statutory or other framework in which it operates.
Non statutory bodies
The parties to disciplinary proceedings cannot by their consent confer jurisdiction upon a tribunal which is entirely a creature of statute. Where a position
is not governed by statute, it is prudent for organisations to require a written statement from an applicant for membership, agreeing to be bound by
its disciplinary rules.The
terms of the contract of membership of a private organisation may derive from its articles of association, code of conduct, regulations, by-laws, or
A court will be slow to interfere with proceedings of private bodies such as social clubs, sporting associations, the stock exchange, political parties
and sometimes even trade unions. The doctrine of natural justice has no application to purely private law contractual claims, where a definition of
professional conduct is put in a contract and the public law concept of reasonableness has no place.
For example, it has been said that the contractual obligations on a dog club in exercising disciplinary functions were, at most, to act fairly, to take
reasonable steps to apply the rules of the club and to act in accordance with the law. It was not contractually obliged to reach a correct decision,
and damages could not generally flow from any wrongful decision on its part, unless there was unfairness or negligence.
There is no time limit for bringing disciplinary proceedings in the absence of a rule to the contrary, though undue delay resulting in prejudice to the
defendant can sometimes give rise to an abuse of process where the charges are brought under statutory enactment.In
a private contractual arrangement disciplinary jurisdiction ceases once the contract of membership expires, although there is no reason why members
of a professional body should not agree to be bound by the rule that they continue to submit themselves to disciplinary procedures after membership
ceases. A professional body may want to ensure such a condition, otherwise those who merit disciplinary action can evade it by an act of resignation.
Statutory disciplinary bodies
In Australia, whether the disciplinary hearing is of a public nature and therefore subject to judicial review, usually depends upon whether the hearing
is under a statute or enactment.A
number of factors warrant consideration. If a function is one of public concern, such as a private company running a prison, then judicial review is
likely to be available.It is relevant to consider the rights and interests of the individual affected in determining whether the accountability that
judicial review demands is relevant to the particular body under examination.Professions
such as medicine and law are governed by statutory principles to which the rules of natural justice apply. Those rules require a right to be heard
by an unbiased tribunal; to have proper particulars and notification of charges; and to be given an opportunity to answer the charges. Natural justice
also allows for principles such as whether there has been an abuse of process, for example by reason of undue delay, to be applied.
Public Sector Management Act 1994 (WA)
One example of a statutory process which reflects many of the common law rules is to be found in the Public Sector Management Act 1994 (WA) (PSM Act).Under
s 82A(1) of the PSM Act, in dealing with a disciplinary matter, an employing authority must proceed with as little formality and technicality
as the matter permits; not be bound by the rules of evidence; and it may determine the procedures to be followed subject to any statutory officer’s
Under the PSM Act the standard of proof necessary for an adverse finding is decided on the balance of probabilities. An offence can be established
on the evidence if it is found more likely than not to have occurred. Investigations are normally carried out without the ability to summon witnesses,
compel responses or subpoena documents.
Commencing an investigation
Under the Public Sector Management (General) Regulations 1994 (WA) the prescribed procedures require that:
(a)suspected breaches of discipline are investigated and the respondent is notified in writing (clause 2(1) of the Act and Regulation 16);
(b) the investigation will lead to a finding being made in respect of, and may lead to action being taken against, the respondent under division 3 of part
5 of the Act, and to state the range of possible findings and possible actions;
(c) certain steps may be taken in the conduct of that investigation prior to the making of a finding, and the taking of any action, against the respondent;
(d)the respondent is notified of any interview or meeting which he or she is required to attend; and
(e)he or she has the right to have present, during any interviews or meetings attended by the respondent, a representative capable of providing advice
to the respondent.
Some bodies, under statutory powers, must investigate, others have a discretion. It has been said that there are many situations in which natural justice
does not require that a person be told the complaints against him or her, and given a chance to answer at that particular stage. The investigation
may be purely preliminary. Where there is no penalty or serious damage to reputation inflicted by proceeding to the next stage without such preliminary
notice, then that may be done.Generally
a person who is the subject of disciplinary proceedings is entitled to disclose confidential information if it is necessary for his or her own protection
to do so. There is no confidence as to disclosure of an iniquity.
Since a preliminary enquiry is not a trial, and is therefore not ordinarily attended by the rules of natural justice, there may be no requirement that
the person be notified. However, an investigator may not treat a member unfairly, for example, by giving an untruthful account of the evidence against
him or her in order to induce an unwarranted admission.
The decision to proceed with a disciplinary action
Usually the test for proceeding with disciplinary action is a ‘realistic prospect of conviction’ or the existence of a prima facie case which, if un-contradicted,
could be grounds for a finding of guilt.
A defendant has a right to receive fair notice of the charges against him or her. This is for the purpose of enabling a defendant to defend or answer complaints
and the notice must be sufficient to enable him or her to prepare a defence or answer.
There is no requirement at common law that the defendant receive advance notice of the evidence as opposed to notice of charges. The charges laid
should specify the relevant contravention in law and a short summary of the factual elements upon which this contravention is alleged to have occurred.
If there is a fundamental change in the nature of the allegations, the defendant is entitled to notice. To be effective, a notice of a disciplinary
hearing must be received in good time before the hearing. It has been held that five days notice is sufficient for a disciplinary hearing and fifteen
days sufficient for a professional disciplinary proceeding. This would depend upon the nature and complexity of the case and the time needed to prepare an adequate defence.
Service of notice
Service of a notice means actual receipt by the person concerned. Normally mere dispatch, even under a rule which allows service by post to a party’s last
known address, is not service upon that person.However,
under section 40 of the PSM Act if the address of the public service office is unknown, then the notice may be forwarded to the last known
address and notice of posting given. Sometimes the rules provide that proof of posting is proof of service, but even then it is probably prima facie
evidence only. Notice may be deemed to have been given if there is ‘obstructive conduct on the part of a person (concerned)’ such as the refusal to
collect a registered letter which, as he is aware, contains the notice.
PSM Investigative Steps
Under the PSM Act there are steps in a disciplinary investigation to establish the authority to undertake the investigation; to consider the scope
of the investigation; to construct an investigation plan and to draw up a chronology. This is followed by the collecting of documentary evidence, organising
and commencing interviews and considering whether a site inspection is required. This, in turn, is followed by collating and analysing the evidence;
considering the need for further evidence; and conducting further interviews and collecting further documentation. Finally, there is the writing of
the report, and consideration if there is a need for further evidence, before finalising and presenting the report.
The preliminary phase
Sometimes a tribunal holds a preliminary meeting as required by the rules or as a matter of convenience to decide whether there is anything worth investigating.
The procedure carries some risk of apparent bias, but generally an authority, which is required to hold a preliminary enquiry before summoning
a person before it, may do so without disqualifying itself from the hearing.It
would be a useful precaution for different people to sit on the enquiry and the tribunal if possible.
At what stage do the rules of natural justice begin?
The case against the right to be heard at the preliminary stage is based on convenience and simplicity. If there is a fair hearing after formal charges
are laid, this is enough to satisfy procedural fairness. If not, how far back into the administrative process does natural justice have to go?Public
enquiries, which do not formally affect legal rights, must comply with natural justice if their reports or proceedings ‘expose persons to criminal
prosecutions or civil action’ or damage to reputation.Some
codes of professional discipline provide for preliminary enquires in which there is a right to be heard. It is a practice in some turf associations
to have a preliminary hearing in the presence of the potential defenders, before any charges are laid. If a charge follows, there is a further opportunity
to be heard.
It was said in Pearlberg v Varty by Lord Pearson:‘ fairness…. does not necessarily require a plurality of hearings….otherwise nothing could be done simply and quickly
and cheaply’. In that case a taxpayer had received a default assessment based on a tax officer’s estimate of his true income; the appellant unsuccessfully
claimed that the tax office should have given him a chance to persuade them first that there was no need for a default assessment, without being obliged
to challenge after the assessment had been received. It has been held in Australia that taxpayers have no right to be heard before the Commissioner
of Taxation can obtain compulsory access to their financial records.
In the absence of a special provision, a statute imposing a duty to ‘enquire into complaints, and form a preliminary opinion as to whether disciplinary
proceedings should be commenced, does not require a hearing at that stage’.
Conversely in the Privy Council case of Rees v Craneit
was held that natural justice applied at the first stage. The legislation of Trinidad and Tobago prescribed that before a Judge was removed from office
the question went before a judicial legal services commission; if there was a prima facie case of incompetence, it was then reported to the President,
who then had to appoint a special tribunal to advise him; and, if the latter commission recommended dismissal the person could then seek further advice
from the Privy Council in London. An adverse finding at the initial stage of the judicial legal services did attract rules of natural justice because
it was a public non-binding opinion that dismissal would be appropriate.
In Ainsworth v Criminal Justice Commission the respondent reported to a parliamentary committee on the introduction of poker machines and recommended
to the committee that the Ainsworth group of companies should not be permitted to participate in the gaming machine industry. No notification was given
to the companies to be heard. A duty of procedural fairness arises because the power involved is one which may ‘destroy, defeat or prejudice a person’s
rights, interest or legitimate expectation’. The High Court said where a report made and delivered by the Commission had, of itself, no legal effect
and carried no legal consequences whether direct or indirect, no action lies, but it is different when a report or recommendation operates as a precondition
or is a bar to a course of action, or is a step in the process capable of altering rights, interests or liabilities.The
publishing of a report, damaging to the reputation of the applicant, without having given the applicant a hearing, was found to lack fairness and a
declaration made to that effect.
What is ‘misconduct’?
It has been said that in order to ascertain whether conduct amounts to misconduct it is necessary to set out which standard or standards of professional
behaviour are alleged to have been breached.A
properly drafted statement of allegations will set out a summary of the facts relied upon concisely and usually in chronological order. The duty of
the draftsman is to analyse the supporting evidence and to distil the relevant facts and discard irrelevancies. If it is alleged that the defendant
knew, or ought to have known certain matters, the facts giving rise to that actual constructive knowledge should also be set out.
Duplicity and vagueness
Duplicity is not a basis for interfering with a disciplinary finding, although it may be relevant to the fairness of the proceedings. Vagueness is a ground
for judicial review if it leads to unfairness in the proceedings since the respondent will not know with precision what is alleged, and not be fully
able to address these matters in the course of the hearing.
Unreasonableness and statutory decision making
An important distinction, which follows from disciplinary tribunals acting under an enactment, distinguished from those governed by private contractual
arrangement, is that legal unreasonableness in decision making may arise under public law. In Minister for Immigration and Citizenship v Lithe
failure of the Migration Review Tribunal to grant an adjournment was held to be unreasonable. The adjournment had been requested to allow for the result
of an assessment to be reconsidered; the Court found a referral to alter the adjournment showed a certain arbitrariness that rendered it unreasonable.
The plurality considered that legal unreasonableness is not confined to an irrational or bizarre decision, or one so unreasonable that no sensible
decision maker would have made it, such as was found in the Wednesbury case.It
is a decision which lacks an evidential intelligible justification. French CJ said ‘a disproportionate exercise of an administrative decision, taking
a sledge hammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what is necessary for
the purpose it serves’. Sometimes questions of proportionality may be relevant to reasonableness. A question may be asked whether excessive weight
was given to the fact that Ms Li had an opportunity to present her case.
A disproportionate response is one way in which a conclusion of unreasonableness may be reached. A disproportionate exercise in administrative discretion
might be characterised as irrational or unreasonable on the basis that it ‘exceeds what, on any view, is necessary for the purpose it serves’.Conversely,
Gageler J said that successful invocation of Wednesbury unreasonableness has been rare, and nothing in his reasons should be taken as an encouragement
to greater frequency.
Another area where disciplinary proceedings taken under an enactment give rise to a different approach is abuse of process. In Walton v Gardinerit
was said that a stay of proceedings is not confined to improper purpose or absence of a fair hearing. Certain doctors were charged with statutory offences,
and granted an indefinite stay of proceedings on the grounds of undue delay in bringing the proceedings. On the other hand, where it was argued that
a charge brought against a university professor, under the provisions of a collective agreement, though recognised as an instrument under the provisions
of the WorkPlace Relations Act 1996 (Cth), was not itself to be regarded as an enactment and therefore public principles of judicial review
did not apply, and a stay of proceedings would not be granted.
Conduct of the hearing
Proceedings of a disciplinary tribunal must be conducted in accordance with the tribunal’s own rules, except to the extent to which they may be inconsistent
with the rules of natural justice.Natural
justice requires that the hearing be fair. The common law does not recognise the general right to an oral hearing, though such a right is usually accorded
in all except the most informal tribunals. Where credibility issues arise, or bad faith is impugned, an oral hearing is very likely to be required.Lord
Bingham said that it is often difficult to address effective representations without knowing the points which are troubling the decision maker.
Is legal representation allowed?
At common law a person charged before a disciplinary hearing, even with facts amounting to a crime, is not always entitled to legal representation. Where
the rules are silent the applicant should seek leave if wanting representation.There
is no authority that supports a right to counsel at public expense outside the higher Criminal Courts.Where
it exists it is usually based on a statutory provision. R v Secretary of State for the Home Department & Others ex parte Tarrantsets
out where representation may be allowed, such as where it is due to the seriousness of the charge and the potential penalties; whether there are any
points of law likely to arise; the capacity of the defendant to present his case; procedural difficulties such as a need to interview and cross-examine
witnesses; the need for reasonable speed in making the adjudication; and the need for fairness as between parties. This test was approved by the House
of Lords in Hone v Maze Prison Board of Governors.Where
parliament creates a tribunal, and says nothing about its procedure, it will have implied powers incidental to the exercise of its jurisdiction; power
to regulate its procedures; and power to make such administrative arrangements as are appropriate for it to discharge its function (Virdi v The Law Society).
Procedures at trial
There is no general right to privacy. Indeed the principle is that quasi-judicial proceedings should be open. However, where there is no protection against
defamation it is not uncommon for threats of defamation action to be made and in such circumstances the hearing may be in private.The
principles are said to include a procedure which is fair to both sides: that both sides must normally allow each party to call relevant evidence; to
ask relevant questions; and to make relevant submissions. The tribunal is responsible for fair conduct of the trial and neither the parties nor the
representatives are in control of the hearing. Procedural fairness applies to the conduct of all those involved in the hearing. The tribunal is under
a duty to behave fairly, and to require the parties and the representatives to act in a fair and reasonable way in the presentation of their evidence,
and in challenging the other side’s evidence and in making submissions. The tribunal makes an error in its procedural rulings if it either has no power
to make the ruling or if in the exercise of discretion it makes a ruling which is plainly wrong.
As with courts, it is customary to exclude from the court room all witnesses until their turn comes to give evidence, except for expert witnesses. Whoever
goes first is usually the person on whom the burden of proof lies, but he or she is also given the right of reply. The last word is a valuable right,
which offsets, perhaps, the disadvantage, if any, inherent in having to go first.
The burden of persuasion and evidential rules
In the case of disciplinary proceedings the regulator, or whoever prosecutes, carries the burden of proof, which is usually, though not always, defined
as the civil standard.
However, sometimes the burden of showing that someone is a fit and proper person to hold a position is upon the applicant for registration.
Where allegations involve criminal conduct usually proof to the criminal standard is required in England but not in Australia where the civil standard applies. The admissibility of evidence, and the technical rules of evidence applicable to civil or criminal
litigation, form no part of the rules of natural justice. What is required is that the materials are logical and probative, in the sense that they
show existence of facts consistent with the finding. Evidence is not restricted to evidence that should be admissible in a court of law.
The rationale and nature of reasons
Although it is not universally accepted that there is a mandatory requirement for reasons to be given by judges, it has been said that reasons must be
given in order to render practicable the exercise of rights of appeal. However, there are a number of other justifications. These include the requirement
that justice not only be done but be seen to be done. Reasons are required for decisions to be acceptable to the parties and to members of the public;
the requirement to give reasons concentrates the mind of the judge; and it has even been contended that the requirement to give reasons serves a vital
function in constraining the judiciary’s exercise of power.
The case for binding reasons as an incident of natural justice is strong. With articulated reasons it shows that the Tribunal has discharged its duty.
It is one of the fundamentals of good administration.A
decision maker is not required to deal with every argument, but for the appellant process to wor
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