As featured in the Clubs Insight Magazine
In a recent edition of Clubs Insight magazine, we provided a guide for your Club to implement the correct structures to manage member disciplinary matters. We spoke particularly about the importance of the Club Constitution and By-laws. In this article, we now focus on the principles you should bear in mind to ensure that disciplinary tribunals are run smoothly and effectively.
Natural Justice
“Natural Justice” is a term that is commonly used in the context of disciplinary tribunals, but also one which is frequently misunderstood.
It is possible for your Constitution to provide that your Club is not obliged to apply the principles of natural justice when operating certain tribunals. However, in most cases, it is appropriate for your Club Constitution and/or By-laws to require that tribunals must apply principles of natural justice when determining a dispute or a disciplinary matter.
The expression “procedural fairness” is sometimes used interchangeably with “natural justice”. For both terms, the key elements are as follows:
- The person charged with an offence should have the right to understand the charge against them. They should be informed of the rule they have breached and provided with specific particulars setting out exactly how that alleged breach is said to have occurred.
- The tribunal hearing the dispute must not be biased. This can be difficult for smaller Clubs that may have a limited pool of people who are willing and available to sit on disciplinary tribunals, and who don’t have a pre-existing relationship with the member subject to disciplinary action. However, this is an important tenet of natural justice nonetheless, and one we suggest that Clubs should strive towards in the interests of fairness.
- The member is entitled to be heard and to defend themselves against any charges.
Where Clubs implement these fundamental principles in their disciplinary procedures, it is a significant step toward ensuring that disciplinary matters are conducted with fairness.
Other Considerations
Other considerations for Clubs conducting disciplinary tribunals are:
- Who will sit on the tribunal to determine disciplinary matters? As noted in Part 1 of this series, some Clubs allow disciplinary matters to be determined by the Club management committee or even by a general meeting of members. Another alternative is for the Club to seek the appointment of independent tribunal members from outside the Club, especially for more serious matters. For example, the Australian and New Zealand Sports Law Association (ANZSLA) publishes a contact list of legally trained people who may be willing to volunteer as independent tribunal members where desired.
- Will you allow members to be represented at tribunal hearings, whether by a lawyer or a non-legally qualified person? Many organisations stipulate that members can only be represented by a legally qualified person with leave of the tribunal. However, in our experience, it is often helpful to allow legal representatives to appear, as this tends to focus the attention of the tribunal on the most relevant aspects of the member’s defence.
- What is the timeline for the progression of a typical tribunal matter? If your Club receives a complaint about a member, then how long does the Club have to determine whether to charge the member and to provide them with specific details of the alleged breach? How long will the member then have to provide documents and call witnesses in support of their defence? How long before the matter proceeds to a hearing?
- What rights of appeal (if any) will be available to members found guilty by the tribunal? This should be clearly set out in your Constitution/ By-laws.
Takeaway
Thinking about the above principles and formalising them in your Club Constitution or By-laws will set you on the right path to conducting fair and efficient disciplinary tribunals. If your Club is structured as an Incorporated Association under the Associations Incorporation Act 1981, then this will be especially important considering changes to the Act which are likely to require your Club to follow a model grievance procedure, or to adopt your own procedures to resolve internal disputes.
Should you have any questions about formulating disciplinary By-laws, updating your Constitution, or operating a disciplinary tribunal, then please do not hesitate to contact me on (07) 3224 0353.
