Today’s question raises further issues about ‘natural justice’ in disciplinary hearings in the RFS. The question begins:
Your recent articles regarding the failed litigation arising from the Hawkesbury District [RFS complaint ends up in court (February 20, 2023) and Appeal by RFS volunteers over management of complaints (December 28, 2023)] has given me reason to read up on the Discipline Service Standard.
I found the context of SS 1.1.2-3 “Disciplinary Hearings” to be rather disturbing.
Section 2.1(a) requires the panel to “observe the rules of natural justice”. A footnote then refers to an information sheet, “Natural Justice”.
Section 2.2 states: “the disciplinary panel is not bound by the rules of evidence”. A footnote states “(T)he rules of evidence that apply in a court do not apply to a disciplinary hearing”. It is presumed that this implies the Evidence Act 1995 (NSW).
What disturbs me is that a disciplinary panel is able to make findings and impose penalties, yet there is an absence of guidance on how a panel should operate. It is assumed that the disciplinary panel would make a finding “on the balance of probabilities”, yet there is no guidance on how they should consider whatever is put in front of it, either by the complainant, investigator or the person subject of the complaint, and to what weight it should be given in order for there to be “a balance”. There is no ability ensuring a fair hearing (or that one is held), that the evidence provided is able to be adequately tested by the respondent.
The “Natural Justice” information sheet (from 2009) refers to “Fact Sheet 14” published by the NSW Ombudsman. This Fact Sheet appears to superseded / no longer published, however the “Guideline C1 People the subject to a report” and “Good conduct and administrative practice” appears to be the current Ombudsman documents relating to the application of Natural Justice. Footnote 48 (pg. 67 of the “Good conduct” document) provides some caselaw to the effect that “it is an error of law to make a finding of fact for which there is no probative evidence”.
The Evidence Act sets a clear path for those involved in finding matters of fact based on the evidence that is provided and tested. It appears that by exorcising this guidance, and a lack of useful guidance in the SS is problematic. According to a report arising from a survey to review the way grievance and discipline matters are dealt with there was a lack of confidence in the process by the membership. In the review, no comments appear to be made regarding the conduct of the processes under the SS, including disciplinary panels (other than construct of the panel membership). It is also worthwhile noting that thus far there appears no further (obvious / publicised) action has been taken since the report’s publication in mid-2021.
NB I also found the following links of interest, particularly given Clayton Utz’s deep involvement with the NSW Government agencies and particularly the RFS.
- Public Law Essentials 05: Procedural fairness https://www.claytonutz.com/insights/2022/august/public-law-essentials-05-procedural-fairness
- Failure to afford procedural fairness will generally be material: High Court https://www.claytonutz.com/insights/2022/august/failure-to-afford-procedural-fairness-will-generally-be-material-high-court
- The right to reputation: natural justice and human rights issues in administrative and regulatory investigations https://www.claytonutz.com/insights/2020/october/the-right-to-reputation-natural-justice-and-human-rights-issues-in-administrative-and-regulatory-investigations
Given the lack of effective guidance, is it realistic to view the current disciplinary processes within the RFS as being able to be easily manipulated to weaponise the process or “engineer a result” to the detriment of a respondent? Would the current position meet the requirements to protect an individual’s reputation (my interpretation of the driver behind the unsuccessful Hawkesbury litigation) and otherwise be defensible if a judicial review is pursued?
The Evidence Act 1995 (NSW)
The Evidence Act does set out the rules of evidence as applied in NSW courts. It is the implementation of a Uniform Evidence Act that is meant to ensure the law is similar across Australia. So far, the Uniform Act has been adopted by the Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory.
The rules of evidence are complex and require many years of practice to fully understand. It is not surprising that an internal RFS panel is not expected to be bound by the rules of evidence.
Further the fundamental rule of evidence law is that relevant evidence is admissible, irrelevant evidence is not (Evidence Act 1995 (NSW) s 56). That means that the rules of evidence that follow are designed to keep out evidence that is otherwise relevant, that is (s 55):
… evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The reasons for excluding evidence are many and varied but generally relate to whether it can be relied upon, whether the risk of allowing the evidence exceed the potential benefit and sometimes whether the evidence is in the right form.
The rules are most strictly applied in criminal cases where the Crown bears the burden of proving its case beyond reasonable doubt; and in jury cases where jurors are having their first experience in hearing and assessing evidence. Judge alone cases often take a more flexible approach where the judge will admit the evidence but then decide what value to give any controversial evidence.
The Evidence Act ‘applies to all proceedings in a NSW court’ (s 4). An RFS tribunal or panel is not a court. The statement in the service standard that a tribunal is not bound by the rules of evidence is a statement of the law rather than the RFS ‘exorcising’ the Act that would otherwise apply.
That the rules of evidence do not apply outside a court room is not unusual. Coroners are not bound by the rules of evidence (Coroners Act 2009 (NSW) s 58) nor the is the NSW Civil and Administrative Tribunal (Civil and Administrative Tribunal Act 2013 (NSW) s 38). These tribunals have much more extensive jurisdiction than an RFS panel.
Natural justice and procedural fairness
The rules of natural justice are fundamentally a right to be heard before an adverse decision is made and the right to an unbiased decision maker. Procedural fairness requires that a person be informed of the allegations against them and are given the opportunity to respond to them. It does not mean they have to be given access to every document and internal memo, but they have to know what is alleged – see Accessing information relating to complaints and disciplinary proceedings (September 28, 2018).
The rules of natural justice and procedural fairness apply regardless of whether the Evidence Act applies. Also applicable will be the rule in Briginshaw v Briginshaw (1938) 60 CLR 336. In a paper Briginshaw in Land and Environment Court Proceedings – Introductory Observations from the Judicial Perspective, Justice Rachel Pepper explained the effect of Briginshaw. She said (at [5]-[8]):
The seminal statement or explanation derives from Dixon J in Briginshaw v Briginshaw, where his Honour stated that “when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence … It cannot be found as a result of a mere mechanical comparison of probabilities.” His Honour went on to explain that the standard is one of “reasonable satisfaction”:
…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
… The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave consequences…
… [It] does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind. Thus the High Court in Neat [Holdings Pty Ltd v Karajan Holdings Pty Ltd] stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. In short, the more serious the allegation, the more probative or stronger the evidence needs to be.
The Briginshaw principle is enshrined in the Evidence Act (s 140(2)) but the fact that the rule applies in civil proceedings where the rules of evidence apply does not meant that it does not apply in other cases. A tribunal will need to be satisfied that there is evidence – something upon which they can be satisfied that the allegation is made out – before they can find an allegation proved and that is true even if the evidence might not be admissible in a court.
Discussion
An RFS tribunal may not be bound by the rules of evidence but that does not mean it is a law-free zone. My correspondent says:
It is assumed that the disciplinary panel would make a finding “on the balance of probabilities”, yet there is no guidance on how they should consider whatever is put in front of it, either by the complainant, investigator or the person subject of the complaint, and to what weight it should be given in order for there to be “a balance”.
But there is guidance in the decision in Briginshaw v Briginshaw. One might think that it is a long stretch to assume that the panel knows that case, but it is equally a long stretch to assume that they would know the rules of evidence if they were bound to apply to the Evidence Act.
Further it is said:
There is no ability ensuring a fair hearing (or that one is held), that the evidence provided is able to be adequately tested by the respondent.
But there is, the decisions may be subject to judicial review and the rules of natural justice and procedural fairness must have been applied.
The Evidence Act does not set ‘a clear path for those involved in finding matters of fact based on the evidence that is provided and tested’. It provides rules on what evidence can be used, not how it is to be used, what weight is to be given to evidence or how a tribunal is to make use of the evidence in coming to its final decision. I think my correspondent expects too much from the Act.
I’m asked:
Given the lack of effective guidance, is it realistic to view the current disciplinary processes within the RFS as being able to be easily manipulated to weaponise the process or “engineer a result” to the detriment of a respondent?
I cannot see that in the SOP nor in the fact that the panel is not bound by the rules of evidence there is an ability to easily manipulate the process. The panel is made up of three volunteers – peers of the people likely to be before it – (SS 1.1.2-1 [2.1] and [2.9]). I don’t know why anyone would assume those members would not come to the task with an open mind, a desire to act in good faith and in accordance with the service standard which directs them to apply the rules of natural justice and to avoid conflicts of interest (see [2.17]).
As for the question:
Would the current position meet the requirements to protect an individual’s reputation (my interpretation of the driver behind the unsuccessful Hawkesbury litigation) and otherwise be defensible if a judicial review is pursued?
I would have thought so; in fact, I don’t understand why the Hawkesbury litigant’s did not think being exonerated by the process was not sufficient to protect their reputation. If their reputation has been harmed surely it was made worse by going to court and having the adverse findings as their credit publicly recorded by the judge? The process if applied according to the service standard would be absolutely defensible, as indeed it was defended in the cases referred to at the start of this post.
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Interestingly, the Processes set out in Service Standard 1.1.2 do not set out anything about the Complainant’s rights. Once the matter is investigated, there is nothing in the Processes about the Complainant’s rights with regards to attending or taking part in the Hearing (meaning that the Complainant’s must be made wholely within the original complaint and the report of the Investigator, without any mechanism to address any defence raised by the Respondent), nor is there anything in the Processes where the Complainant is informed that a Hearing has taken place, the Findings of the Panel, and any related Penalty.
Having been involved in a matter which took over 18 months to be heard (as an officer the matter was escalated to had a Conflict Of Interest which was identified, stalling the matter until complaints about the lack of action were escalated even further) the whole process is extremely disappointing. The Respondent knows everything about what was presented, their response, the outcome and any penalties and I, as the Complainant, was told “The matter has been heard” with no further details being provided, and any further questions being deliberately blocked.
I understand that “Natural Justice” allows the Respondent a fair opportunity to hear the complaint being made against them, to review the evidence and to mount a defence, but does “Natural Justice” not also extend to the Complainant to be able to have visibility of the outcome of the matter, and to be able to respond to any counter-claims raised by the Respondent?
No, natural justice would not extend to the complainant per se. The issue will be one between the RFS and the respondent. The complainant, like a victim of crime, maybe a witness but they are not party to the proceedings. The RFS (like the Crown in a criminal case) is not the complainants representative. Decency and ideas of therapeutic justice (ie the justice system should not be a source of harm) would suggest complainants should be advised that matters have been dealt with particularly if for example, the respondent is coming back on duty and is likely to have to work with the complainant then the complainant should be told that the process has been completed and the person is cleared to return.
I used to conduct disciplinary misconduct hearings for prisoners for internal breaches of good order and security. Same thing there, rules of evidence did not apply but natural justice did. Interestingly there was never any training for the officers put into those roles, it was up to them to teach themselves about rules of evidence and natural justice. No wonder it was called Kangaroo court.
“It is not surprising that an internal RFS panel is not expected to be bound by the rules of evidence.”
It can be helpful for your correspondent to understand that RFS Disciplinary Panels are not somehow “exempt” from the Evidence Act purely because it’s complex (or so to speak, “too hard”).
Rather, the Act does not apply because Parliament put into the act a list of bodies to which act applies – and RFS Panels are simply not on that list.