Disciplinary processes are important. Drug cheating and defamation of fellow members, competitors and judges on social media platforms are just 2 serious trouble spots. Nowadays, organisations also have “rules” about discrimination in all its forms, harassment and bullying.
Voluntary equestrian organisations are free to decide their own disciplinary scheme (by ‘scheme’ is meant the disciplinary body, its jurisdiction, functions and powers set out in its rules). A disciplinary committee must:
- Ascertain where in the organisation’s documentation the disciplinary scheme is located and read and comprehend it thoroughly
- Check the scheme is contained in legally binding rules (that is to say, the rules of the Incorporated Association duly registered under Incorporated Associations legislation, or the Company’s Constitution or Articles of Association in the case of a Company Limited by Guarantee), as distinct from another class of document which does not have contractual status conferred by law
- Ensure the version of the rules consulted reflects all prior approved additions and modifications
The disciplinary committee must reference a rule and its breach which enlivens jurisdiction to entertain the disciplinary process. If the requirement concerned is stated outside the body’s constitution, for example in a Social Media policy, it must still be linked to breach of a binding constitutional rule, such as “not to engage in behaviour or conduct that is unsportsmanlike or which may bring the organisation into disrepute”.
Australian courts of law do not play any role in reviewing the reasonableness of a finding of guilt or any disciplinary action (caution, fine, suspension or expulsion) nor afford a member a right to a rehearing on the merits. But disciplinary committees can fall into reviewable legal error for a number of reasons. If a member is not accorded procedural fairness (known also as natural justice) and his or her livelihood or reputation is affected by disciplinary action, or if the disciplinary process is non-compliant with requirements of the disciplinary scheme, the member charged can approach a court of law for a declaration that the decision is invalid and of no effect. Sometimes, it is even open to the member charged to restrain the disciplinary committee from further consideration of the charge in view of a serious flaw in its own process.
Procedural fairness must be accorded to every member subject to disciplinary process. It entails 2 fundamental principles: Firstly, fairness and, second, impartiality.
Fairness entails a right to be heard. The member must be given proper notice of the specific rule breached and sufficient details of what the member is accused of and by whom. The member must receive copies of any written allegations or complaint against the member (if the disciplinary committee intends to act on them as distinct from its own investigation and findings) and any documentary evidence that the disciplinary body may take into account. The member must be afforded time to prepare a defence. The member must be allowed to present evidence of supporting witnesses and any supporting documentary evidence.
If, as likely, the disciplinary committee has no rules of evidence within its rules, it may inform itself as it wishes. Such freedom to decide facts relating to a charge is a feature of disciplinary action by voluntary organisations. Personal knowledge and information derived from hearsay (that is, oral and written statements of individuals not called as witnesses) are proper evidentiary grounds provided the disciplinary committee members genuinely believe what they hear or read.
Disciplinary committees are made up of individuals known to the member simply by reason of past associations within the organisation. Personal views of the members do not per se constitute disqualifying bias. There are factors, however, that should cause an individual to decline to participate in a disciplinary hearing:
- Animosity – a run-in with the member in the past; unfavourable views of the member published on Facebook or other social media platform by the individual
- Being the complainant against the member, as distinct from a witness
- Pre-judgment – the individual has expressed verbally or published anywhere a view of the member’s guilt that indicates a ‘closed mind’ even before a hearing begins
- Pecuniary interest – the individual has a potential financial interest in a finding of guilt, like being a business competitor with the member
If there should be any solid evidence of actual basis by the individual against the member, that individual should not sit on the committee.
Organisations serious about clean sport and appropriate conduct of members should review their disciplinary processes starting with its misconduct rules, their connectedness to the constitution, the workability of internal procedures for trying, convicting and punishing members and evaluation of those procedures against the principles of procedural fairness.
12 August 2019
© 2019 Michael Mackinnon, Solicitor & Independent Counsel