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Published on the Australian Emergency Law Blog by Michael Eburn – 25th Oct 2017

Click HERE to view the original blog.

Today’s question relates to the application of natural justice and conflicts of interests in NSW RFS disciplinary matters. My correspondent asks:

Can an appointed investigator of alleged allegations against a RFS volunteer be then placed as the Chairperson of the Zone Discipline Panel to make decisions on the same allegations?

The critical issue here is ‘natural justice’. One of the key elements of natural justice is that the decision maker must not have a stake in the matter and must hear from both sides and decide the issue before them without prior judgment.

Rural Fire Service (RFS) Service Standard 1.1.2 is about Discipline. Standard Operating Procedure SS1.1.2-2 deals with ‘Investigation of Allegations’. It says that where an allegation is made a relevant senior officer may appoint an Investigator that is ‘a member or other person … to investigate an alleged breach of discipline’ (SS 1.1.2, [2] definitions; SOP SS1.1.2-2, [2.1]). The investigator is to look into the matter, make recommendations and provide to the appointing officer ‘copies of any statements, other relevant documents or other material that have been gathered or obtained by the investigator’ (SOP SS1.1.2-2, [2.6(c)]). The appointing officer then decides how to deal with the recommendation. One option is to refer the matter to ‘a disciplinary panel’ (SOP SS1.1.2-2, [2.9(a)(i)].

A District disciplinary consists ‘of three volunteer members appointed by the District Manager after consultation with the district Senior Management Team or the brigades in the district’ (SOP SS1.1.2-1 Establishment of Disciplinary Panels, [2.1]). Members are appointed for 2 years. ‘One of the members of a District disciplinary panel must be a currently serving group officer who will ordinarily chair the panel’ ([2.3]). It follows that people are not appointed for each inquiry but are given a standing appointment. This is no doubt a reflection of their experience, perhaps as an investigator, and a belief in their ability to undertake the task fairly and impartially.

A disciplinary panel conducts disciplinary hearings and determines whether or not the member is guilty of the alleged breach of discipline. The disciplinary panel is required to apply the rules of natural justice (SOP SS1.1.2-3 Disciplinary Hearings [2.1]). A member of the panel is required to disqualify him or herself if there is a conflict of interest ([SOP SS1.1.2-1 Establishment Of Disciplinary Panels, [2.17]). A conflict of interest arises, inter alia, if the member ‘makes an allegation or causes an allegation to be made’ or ‘is a witness or potential witness in relation to an allegation’. As noted, ‘The investigator or another member may attend the disciplinary hearing to present the case against the respondent’ (SOP SS1.1.2-3 Disciplinary Hearings [2.4]).

Discussion

Under SOP SS1.1.2-1 a member may be appointed to a disciplinary panel and if he or she is the relevant ‘serving group officer’ then he or she may be expected to chair that panel.

If they were, before their appointment, appointed to investigate a complaint it stands to reason that they could not sit as the chair of the panel when it is hearing that matter. As the investigator, they may appear as the prosecutor and in any event may be expected to be a witness to give evidence of the investigation process. If they have concluded that the member ‘has a case to answer in whole or in part’ they have already made a judgement on the matter so could not approach the matter without that preconceived conclusion. If they were to sit that would be both a denial of natural justice and a failure to recuse themselves due to a conflict of interest. (‘Recuse’ means ‘excuse oneself from a case because of a potential conflict of interest or lack of impartiality’).

Just because they have been an investigating officer it does not mean that they cannot be appointed ‘as the Chairperson of the Zone Discipline Panel’. What it does mean is that they would have to decline to sit in that capacity when the panel was dealing with any complaint that they had investigated. The SS SOPs provide for that. SOP SS1.1.2-1 Establishment of Disciplinary Panels [2.4] says:

If a member of a District disciplinary panel is either unable, or considers it inappropriate, to participate in a disciplinary hearing, the District Manager must appoint another volunteer member from the local pool of volunteers for the purpose of that hearing. That substitute member will hold office only until the District disciplinary panel has completed its functions in relation to that hearing.

Conclusion

The question asked was:

Can an appointed investigator of alleged allegations against a RFS volunteer be then placed as the Chairperson of the Zone Discipline Panel to make decisions on the same allegations?

My answer would split that question into two parts:

Can an appointed investigator of alleged allegations against a RFS volunteer be then placed as the Chairperson of the Zone Discipline Panel?

The answer to that question is yes. A person may have been appointed to investigate a complaint but they may then appointed to the relevant Discipline Panel. One can see that the appointment to the panel is part of the personal, professional development of the member. That they have been an investigator does not stop them accepting this appointment.

… to make decisions on the same alleged allegations?

The answer to that second part is no. The investigator may take on the new role, but they should not sit (or they should recuse him or herself) when the Panel is dealing with any matter in which they have been involved. Failure to step aside would represent both a conflict of interest ([SOP SS1.1.2-1 Establishment of Disciplinary Panels, [2.17]) and a denial of natural justice (SOP SS1.1.2-3 Disciplinary Hearings [2.1]).

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