When is Procedural Fairness Breached in the Sporting Context: Recent Decisions of Australia’s National Sports Tribunal
So far in 2023, two disputes brought before Australia’s National Sports Tribunal (‘NST’) have concerned appeals by athletes against governing sporting bodies on the grounds of procedural fairness. In considering these appeals, the respective Panel’s grounded their decisions using the common law principles concerning procedural fairness, as developed by the Australian courts, most prominently in the administrative law context. In both disputes, the panel cited Federal and High Court Authority, and applied the developed principles to bring a grounded legal analysis to resolve the disputes.
This Forum piece will first explain the nature and function of the NST and the types of disputes it can hear. It will then analyse the two recent disputes brought before the NST in 2023 with respect to how the arbitrators applied the common law principles of procedural fairness to appeals against a disciplinary suspension, and a selection decision respectively. The piece concludes with the potential implications of these decisions for Australian athletes’ who may, in the future, seek to appeal a decision to the NST on the ground of procedural fairness.
I. The National Sports Tribunal
What is the NST?
Established by the National Sports Tribunal Act 2019, the aim of the NST is ‘to provide an effective, efficient, independent, transparent and specialist tribunal for the fair hearing and resolution of sporting disputes’.[1] Prior to its formation, sports disputes in Australia were resolved largely through private arbitration or by going to the Court of Arbitration for Sport (‘CAS’).[2] The NST was formed in order to provide an expert, central hearing body to supplement the existing internal dispute resolution arrangements that sports have and also to provide a dispute resolution forum for smaller sports.[3]
What disputes can the NST hear?
The NST uses four different dispute resolution methods (Arbitration, Mediation, Conciliation, and Case Appraisal),[4] has three divisions (Anti-Doping, General, Appeals),[5] and can hear five types of disputes (Anti-Doping Rule Violations, Disciplinary Disputes, Selection and Eligibility Disputes, Bullying, Harassment and Discrimination Disputes, and Other (CEO approved) disputes).[6]
How does a matter come before the NST?
Disputes can be brought before the NST either by eligible individuals or sporting bodies.[7] This can come through sporting bodies choosing to have the NST as the first-instance division, or as an appeals mechanism from a sporting body’s tribunal, or alternatively through a specific agreement by the parties.[8] In the two decisions explored in this article, the agreement to appeal a matter to the NST was specifically incorporated into sporting body regulations in the form of by-laws, and a clause in a selection policy, respectively.[9]
II. Disciplinary Dispute: Daniell Haenga v Queensland Billiards and Snooker Association
The first decision of interest is a disciplinary dispute heard by the NST in January concerning the matter of Daniell Haenga v Queensland Billiards and Snooker Association (‘QBSA’) (with Australian Billiards and Snooker Council (‘ABSC’)).
Key Facts:
Mr Haenga is an active snooker player, QBSA member, and former board member of the QBSA. Mr Haenga’s membership had been suspended for four months by the QBSA Judiciary Committee based on eight charges arising from his comments on and re-posting of social media posts which were critical of a range of different persons and classes of persons within billiards and snooker in Queensland.[10] Specifically, the QBSA found that he had breached the ABSC Member Protection Policy (‘ABSC MPP’) and the QBSA constitution.
Mr Haenega appealed the committee’s decision to the NST and sought for the judiciary committee’s proceedings and outcomes to be quashed, along with a formal apology from the QBSA and ABSC.
Appeal on the Grounds of Procedural Fairness:
One of Mr Haenga’s grounds of appeal was that he was denied procedural fairness and natural justice by the QBSA judiciary, arguing inter alia that:
· The QBSA’s complaint notice was deficient in information.[11]
· The decision made by the QBSA was impacted by bias and a conflict of interest.[12]
· Inadequate time was provided to allow him to consider and prepare the hearing (Mr Haenga was given 5 days notice of the hearing, and he requested the hearing be delayed so that he could properly consider the issues).[13]
The Panel’s Decision:
i. Approaching Procedural Fairness: The Use of Common Law Considerations
Given there were no specific regulations or by-laws in the QBSA constitution or the ABSC MPP concerning procedural fairness and natural justice, the panel confirmed that “in the absence of a procedural code or protocol to guide the conduct of disciplinary hearings then it is appropriate to apply common law principles of procedural fairness to assess whether the applicant was denied procedural fairness”.[14]
This principle is consistent with the High Court of Australia’s statement in Minister for Immigration and Border Protection v WZARH which confirms that “in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions”.[15]
The panel, therefore, looked to the common law principles concerning procedural fairness to assess the actions of the QBSA Judiciary.
ii. The Two Limbs of Procedural Fairness and a Flexible Obligation
Citing High Court authority from the administrative law context in Plaintiff S157, the panel confirmed that procedural fairness traditionally involves two requirements, namely the rule against bias and the fair hearing rule.[16]
Furthermore, the Panel also acknowledged that procedural fairness converts the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case, citing Mason J in Kioa v West.[17] Therefore when considering the two requirements, the Panel did so by reference to the specific circumstances of Mr Haenga’s case, including the actions of the QBSA Judiciary.
iii. The Rule Against Bias
With regard to bias, the Panel stated that the question to be asked is:
Whether the decision-maker can objectively be considered to be impartial and not to have prejudged the decision. The standard by which this is assessed is to the standard of the hypothetical observer who is fair-minded and informed of the circumstances.[18]
In doing so, the Panel effectively assessed whether the QBSA Judiciary acted with ‘apprehended bias’, with the NST decision applying the fair-minded-lay-observed test as set out in High Court cases like Jia Legeng.[19] The ‘apprehended bias’ test is a less stringent test compared to the ‘actual bias’ test at question in Hogan (the second NST decision explored in this piece), however as even apprehended bias could not be found by the Panel to have existed, this indicates that there was no need to consider the more stringent rule on ‘actual bias’.
In their decision on apprehended bias, the Panel decided that the QBSA Judiciary had not been conflicted or biased in the exercise of their duty. Even though the chair of the QBSA Judiciary Committee is a former President of the ABSC, the panel determined that this should not preclude him from holding this position. The Panel noted that the chair is an independent legal counsel at the South Australian bar, and that his knowledge of the relevant support and its administration would have been of some benefit, as would be the case for two other board members who were presidents of affiliate ABSC organisations. The Panel was satisfied that for these reasons, alongside having listened to recordings of the hearings and having read reasons for the decisions that the chair was considered objectively to be impartial, and not to have pre-judged the decision.
iv. Fair Hearing
In determining whether a fair hearing had been given, the panel acknowledged the statement of the High Court in Kioa v West where it said that:
“A fair hearing would generally require a notice that a decision is going to be made that may affect a person’s interests, that there is disclosure of the critical issues to be addressed and information is provided that is credible, relevant and significant to the issues”.[20]
In applying this base standard alongside considering the particular circumstances of the case, the Panel found that the QBSA gave Mr Haenga a substantive hearing with a reasonable opportunity to be heard and present his case.[21] The panel also found that the QBSA:
· Had provided a detailed notice of the misconduct alleged.
· Provided Mr Haenga with the evidence of misconduct clearly referencing the relevant rules that had been allegedly offended according to the evidence.
· Gave Mr Haenga the opportunity to present his case before the QBSA Judiciary.[22]
On the specific issue of the five-day notice period between serving the notice and holding the hearing, the Panel held that whilst this amount was not particularly extensive,[23] it still amounted to a reasonable opportunity to present his case (he need not get a ‘perfect opportunity’).[24] Furthermore, the panel noted that there was a sense of urgency as three days out from the hearing, the Facebook post had not yet been removed,[25] and that often sporting misconduct panels are often heard as soon as 2-3 days after an alleged offence.[26]
Therefore the Panel found that the Fair Hearing rule had not been violated and dismissed this ground of appeal.[27]
As a result, Mr Haenega’s appeal on the grounds of procedural unfairness from both the bias and hearing rule was unsuccessful.
III. Selection Dispute: Emma Hogan v Triathlon Australia
The second relevant dispute of interest concerns triathlete Emma Hogan’s appeal against her non-selection by Triathlon Australia (‘TA’) for a World Triathlon Cup event which took place on 25 and 26 March 2023 in New Plymouth, New Zealand.
Key Facts
TA conducted their team selection in accordance with their World Triathlon Cup Selection Policy (‘the Selection Policy’). This policy gave the selectors discretion for the final two spots on the team with recourse to a range of factors which the selectors could consider when exercising their discretion. TA decided to select two other athletes instead of Ms Hogan.
Section 10 of the Selection Policy allowed eligible athletes who were not selected to appeal that decision under TA’s Appeals Policy (‘the Appeals Policy’).
Relevantly, Clause 4 of the Appeals Policy allowed a non-selected athlete to appeal against their non-selection in accordance with the procedures of Clause 5 of this policy. Ms Hogan appealed on the ground contained in Clause 5.2(b)(iii), which is that:
(iii) Triathlon Australia was affected by actual bias in making its decision to not select the Non- Selected Athlete
Hogan claimed TA was biased in their selection on the basis that:[28]
· Not enough regard was placed on her age (she is 22 years of age) and status as a developing athlete compared with Ms Jeffcoat (the selected athlete) who is 29 years of age.
· She was not afforded athlete support, care and well-being in a TA high-performance program due to TA refusing to communicate with her coach.
· TA has refused to categorise her, which impacted Ms Hogan as TA only selects athletes from the categorised list.
· Ms Hogan has beaten almost all the TA-categorised athletes in prior events.
The Panel’s Decision
i. ‘Actual Bias’
Like in the Haenga dispute, the Panel was effectively dealing with an issue of procedural fairness, specifically the rule against bias.
In particular, the Panel considered the term ‘Actual Bias’ in the TA selection policy by reference to the concept of actual bias as has been developed by the Australian common law in the administrative law context.
The Panel recognised that actual bias only exists:
where the decision-maker has pre-judged the case against the athlete or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the athlete and was not open to persuasion.[29]
This statement comes from North J in Sun v Minister for Immigration and Ethnic Affairs (Federal Court),[30] which is also consistent with statements of the High Court in cases like Jia Legeng.[31]
This established a very high standard for Ms Hogan to prove in order for the Panel to overturn TA’s decision.
ii. Application to the Facts
In making their decision, the Panel considered this rule on actual bias whilst recognising that the flexible obligation of procedural fairness is adapted to the particular circumstances of a selection decision (as outlined by Mason J in Kioa, a statement which was expressly cited in the Haenga decision).[32]
Firstly, the panel acknowledged that selection policies often accord discretion and that they often “prescribe a principal objective to be achieved by the selection process and factors to which regard may be had in considering the exercise of discretion”.[33] Whilst discretion must be exercised ‘reasonably and not capriciously’[34], the Panel emphasised that discretion is often a prominent part of a selection process.
Secondly, the panel considered a range of relevant Australian case law,[35] and also CAS jurisprudence which show that in the context of a selection decision, proving actual bias is very difficult, as the courts have repeatedly warned against seeking to find that the original decision maker acted in bad faith.[36]
It is, therefore, in this specific context of discretionary selection decision, where case law has established a high bar to show actual bias, in which Ms Hogan’s claim is being assessed.
iii. Decision on ‘Actual Bias’
Even though there were separate issues relating to Ms Hogan’s lack of categorisation, the fact that she had beaten some of the selected athletes, and the fact that there was a separate dispute between TA and her coach Ms Carney, this was deemed ‘peripheral to the dispute with which the tribunal is concerned’.[37]
This is because the Panel ultimately was focused on considering whether there was ‘actual bias’ at play.
The selection decision-makers had the ability to consider a range of factors when exercising their discretion. This included the fact that Ms Hogan had not raced at the World Triathlon Championship Series level in the previous 12 months[38] and that the primary objective of the policy is ‘to nominate Athletes whom TA considers have the ability to medal and/or demonstrate the potential to progress to world cup medal performances’, which TA considered the selected athletes to have.[39]
Therefore, given the consideration paid to the relevant factors in the Selection Policy, the Panel found that the selectors were indeed open to persuasion. Furthermore, the Panel found that there was ‘no evidence that in the selection process’ that TA acted with such partisanship or hostility so as to have made up its mind against Ms Hogan prior to consideration of her potential selection in accordance with the discretionary factors set out in […] the Selection Policy.’[40]
IV. Reflections and Implications
These two decisions highlight the challenges athletes face when appealing decisions made by governing sporting bodies the NST on the grounds of procedural fairness.
In both decisions, the approach from the Panel was to turn to the key principles of procedural fairness, as developed most notably by the Australian High Court in the administrative law context. This approach is logical, given the decision-making authority and discretion given to decision-makers in governing sports bodies such as the QBSA and TA, who should adhere to the same principles of procedural fairness and bias as an executive government decision-maker would.
In taking this approach, a rational legal analysis was used by the Panels, which ultimately supports the NST’s aim to provide a fair hearing and resolution of sporting disputes. This also creates a number of implications for Australian Athletes who may seek to ground a future appeal to the tribunal in a procedural fairness claim.
First, with respect to bias, the Haenga and Hogan decisions highlight the high bar that the tribunal requires to be satisfied to find that a decision was impacted by apprehended or actual bias. Athletes will need to show, at the very least, that the decision-maker objectively prejudged the decision, or in the case where an actual bias standard is required, that the decision maker was not open to persuasion at all.
Second, with respect to wider considerations around a fair hearing and procedural fairness, the Haegna decision shows that an Appellant can fail on this ground in situations even where they receive only a few days notice of a hearing. Furthermore, the Australian case law cited in the Hogan decision re-affirms the hesitancy of the Tribunal to overturn original decisions unless there is a valid reason to do so. Therefore, the onus is on the Athlete to prove with strong evidence that in the specific factual circumstances of their case, they were not afforded a fair hearing.
[1] National Sports Tribunal Act 2019 (Cth) s 3(1) (‘NST Act’).
[2] Explanatory Memorandum, National Sports Tribunal Bill 2019, 10.
[3] Ibid 3.
[4] NST Act s 27, s 28.
[5] NST Act s 11.
[6]‘Types of disputes and appeals’, National Sports Tribunal (Web Page) <https://www.nationalsportstribunal.gov.au/dispute-resolution-services/types-disputes-and-appeals>.
[7]‘Accessing the NST’, National Sports Tribunal (Web Page) <https://www.nationalsportstribunal.gov.au/dispute-resolution-services/accessing-nst>.
[8] Ibid.
[9] Daniell Haenga v Queensland Billiards and Snooker Association (with Australian Billiards and Snooker Council) (Determination, National Sports Tribunal, NST-E23-2400, 30 January 2023) (‘Haenga’) [6.1]-[6.4], Emma Hogan v Triathlon Australia (Determination, National Sports Tribunal, NST-E23-47455, 24 February 2023) (‘Hogan’) [9]-[16].
[10] Haenga [3.1].
[11] Ibid [7.4].
[12] Ibid [2.3].
[13] Ibid [7.4].
[14] Ibid [14.4]-[14.5].
[15] [2015] HCA 40, [30] (Keifel J, Bell J, Keane J).
[16] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 [25] (Gleeson CJ).
[17] Kioa v West (1985) 159 CLR 550 [585] (Mason J) (‘Kioa’).
[18] Haenga [14.9].
[19]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 [95]-[100] (Gleeson CJ and Gummow J) (‘Jia Legeng’).
[20] Kioa (n 17) [629] (Brennan J).
[21] Haenga [14.10].
[22] Ibid [14.11]-[14.12].
[23] Ibid.
[24] Ibid [14.12].
[25] Ibid.
[26] Ibid [14.13].
[27] Ibid [14.14].
[28] Hogan [40].
[29] Ibid [19].
[30] (1997) 81 FCR 71 [134] (North J).
[31] Jia Legeng (n 19) [36], [71]-[72] (Gleeson CJ and Gummow J).
[32] Kioa (n 17) [585] (Mason J).
[33] Hogan [37].
[34] Ibid.
[35] Maloney v National Coursing Association (1978) 1 NSWLR 161 [171]; Re Maggacis (1994) 1 Qld R 59 at [65-66]; Bornecrantz v Queensland Bridge Association [33]-[34]; Jackson v West Australian Basketball Federation (1990) ALT 283 [286]; CAS decision in the Emma Carney Appeal; Modahl v British Athletic Federation Limited (2002) 1 WLR 1192 [1214].
[36]Citing a range of Australian jurisprudence, most notably Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [40]-[42] (Mason J).from the administrative law context.
[37] Hogan [51], [62].
[38] Ibid [63].
[39] Ibid [67].
[40] [Ibid [69].