Two words that are used extensively and often misused in disciplinary matters, are the words “natural justice”. To further confuse this there are other words used to attempt to make those words easier to understand, such as procedural fairness.
John Forbes in his book “Justice in Tribunals” when talking about natural justice said this “The expression is apt to create real or pretended confusion. In the common law sense it does not mean anything so lofty as ideal justice or a perfect answer to every litigant’s complaint or simply a result that satisfies a party. It is a high sounding name for a relatively novice goal of fair procedure”.
There are circumstances in which a person is entitled to natural justice. One of those circumstances is where a person is facing a disciplinary tribunal. In that context you would presume natural justice will apply. It is possible however that natural justice may be specifically excluded, but in the context of sport this is highly unlikely to be the case. The key elements to natural justice are as follows:
- That the person charged with the offence has the right to know what they have allegedly done. To comply with this obligation it is necessary for not only the rule which has been breached to be quoted, but also the person is entitled to know the particulars of what they allegedly have done.
- The tribunal must not be biased. This is often where natural justice fails in that the tribunal is biased. Often some excuse is used to justify persons who have prejudged the matter sitting in the determination of the matter.
- The person is entitled to be heard in their own defence. A reasonable opportunity needs to be given to the person and where there is a reasonable explanation adjournments should be given to fully allow a person the opportunity to be heard.
There are a couple of other issue which are not strictly principles of natural justice, but lead to the provision of natural justice.
- The right of the person charged to receive all of the material which has been provided to the tribunal in sufficient time to enable them to consider the material to enable appropriate submissions to be made and potentially conflicting evidence to be provided.
- It is often considered that the right to be legally represented is a right of natural justice. That is not the case. Often rules of organisations in fact strictly prohibit the right to be legally represented before the tribunal. Tribunals should act fairly in that regard in all of the circumstances and consider the ability of the person to represent themselves, particularly in matter which has serious consequences. I think careful consideration needs to be given as to whether a person should be allowed to be represented by competent counsel.
- There is a requirement to reach a reasoned and unbiased decision. Unless the rules of the organisation provide, there is no strict obligation for the tribunal to provide reasons.
- The final matter is a requirement that if there are rights of appeal from the tribunal, that the respondent is notified of those appeal rights.
Providing natural justice is remarkably simple. Parties just need to follow these principles and act fairly and reasonably.
For further reading on this topic the best publication is Forbes’ book Justice in Tribunals
Partner, Mullins Lawyers & ANZSLA Member