A recent Supreme Court decision in Queensland should remind all decision-makers of the importance of observing principles of procedural fairness when making a decision, especially if it has the potential to affect the rights, interests or legitimate expectations of an individual. Charities and not-for-profit organisations can adequately protect themselves by following a few simple rules.
Ms Arnold was a greyhound trainer and a former President of the United Queensland Greyhounds Association. She admitted to being involved in live baiting. The penalty for this was the suspension of her licence and the temporary seizure of her greyhounds. The Association additionally sought to warn her off racecourses for life and to prohibit her greyhounds from competing in any future racing event in Queensland. This led Ms Arnold to apply for a statutory order of review regarding the warning off decision and the prohibition decision.
"Ms Arnold ... admitted to being involved in live baiting. The Greyhounds Association sought to warn her off racecourses for life and to prohibit her greyhounds from competing ..."
Give an opportunity to be heard
At the hearing, the Association argued that the prohibition decision was a statement of the consequences which followed the warning decision. It claimed that this absolved it from having to alert Ms Arnold that it was considering making this decision and to afford her procedural fairness in respect of it. However, the court found differently, determining that the prohibition decision was void for lack of procedural fairness, because the greyhound trainer was never given an opportunity to be heard on whether or not such a decision should be made. In making this decision, the court referred to the ability of the decision to seriously affect Ms Arnold’s financial interests – she had $60,000 invested in the dogs and was wrongfully prevented from making this submission to the Association for its consideration.
The second issue
Ms Arnold also argued that she was denied procedural fairness when the chairperson rejected her notice of appeal. Although the statutory provisions gave the chairperson the discretion to accept or reject this notice of appeal, the court viewed this discretion as being of “considerable magnitude” – it had the power to deprive Ms Arnold of a valuable right. For this reason, the court ruled that procedural fairness was owed and that the chairperson should have given notice to Ms Arnold of an intention to reject a notice of appeal. Ms Arnold was assisted by the fact that the wording of the decision itself was unclear and that the reasons for the decision were “not proper reasons” because they did not expose the decision-maker’s reasoning process.
What can charities and not-for-profits take away from this?
The law recognises that, in many situations, organisations must grant a person procedural fairness when making a decision that affects their rights, interests or legitimate expectations. Although some might assume that the principle of procedural fairness is something which is observed only by the courts, charities and not-for-profits should also ensure that fair and proper procedure is used when they make a decision. It has been well established by the courts that the principles of procedural fairness apply to decisions such as disciplinary proceedings within an association (whether employee or member), the decision to expel a member from a club, the decision to debar a person from a church and the decision to remove a licence or benefit, particularly where someone had a legitimate expectation of that benefit continuing (such as a travel concession or a food allowance).
Therefore, charities and not-for-profits should ensure that a person who is going to be adversely affected by a decision is told of the case against them and given the opportunity to present their own case. This may be in the form of a disciplinary hearing, an exchange of letters or an oral hearing, as long as the person is given a reasonable opportunity to consider their position, to reply and to have their reply given genuine consideration before the decision is made.
Charities and not-for-profits should also ensure that there is a lack of bias in the decision. This means that the decision-maker should not have an interest in the matter and should not be perceived as bringing a prejudiced mind to the proceedings. This problem can be overcome in a variety of ways, such as by appointing an independent representative to assume this role or, more commonly, by providing sufficient evidence to support the decision.
Failure to observe the principles of procedural fairness can have serious implications, such as lengthy and expensive court disputes and the ruling that the original decision was void, such as in Ms Arnold’s case.
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