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View Full Version : An essay I wrote last year involving the Tribunal



Go_Dogs
07-03-2007, 09:44 AM
not sure whom it will interest, but thought I would post it anyway.

Did this as part of my Administrative Law course last year, I received a credit for my paper. :cool:

Question:
What is the nature of the Australian Football League Tribunal and its Appeals Board process and what similarities exist between the process of the AFL Tribunal and Appeals Board compared to those established in Australian public law under the Administrative Decisions (Judicial Review) Act 1977?

The Australian Football League has many governing rules which dictate the way that the League is managed. These rules are established in the articles of association of the Australian Football League, and as such the Australian Football League is not a public law body. This is because there is no underlying legislation which was established to govern the rules; rather the Australian Football League is based around articles of association which are contractual in their nature. This topic is very interesting as there are many similarities that exist between the Australian Football League’s Tribunal and Appeals Board, and those which are established in public law legislation around the country, including similarities with sections of the Administrative Decisions (Judicial Review) ACT 1977.. The Australian Football League’s Tribunal is always a hot topic during the season, and many new initiatives were established prior to the 2006 season to ensure that the system was fairer, with more certainty, efficiency and transparency than in previous years. This led to some significant changes in the way that the Australian Football League ran its Tribunal and Appeals system, and included such aims as lessening the financial burden that existed as a barrier to appeals, and also allowed for legal representation and a broader range of legal options available to both the players and the Australian Football League itself . These changes were seemingly made to increase the level of credibility of the Australian Football League Tribunal system, and give it a more definitive and structured procedure that allows for greater transparency and better procedural fairness, whilst it also helped strengthen the links between the Australian Football League’s Tribunal and Appeals Board system and those established in Australian public law.

The nature Australian Football League’s Tribunal follows a strict reporting process that identifies alleged offending players, which is then reviewed by a Match Review Panel and a decision made as to whether or not the player should be charged . This system operates with umpires, and other specified officials of the Australian Football league able to report and refer incidents to the Match Review Panel. This panel consists of a chairmen and two other members, and their role is to analyse matches, review the reports and referrals made by the designated officials, make charges when satisfied that a reportable offence has occurred, and allocate a penalty which the player can either accept, or face the Tribunal to contest the charge . It is also worth noting that the Match Review Panel also has the option to refer the matter directly to the Tribunal , if, on the basis of the evidence, the Match Review Panel cannot determine with sufficient certainty the relevant factors, or in the extreme scenario, if it is appropriate to do so on the circumstances of the offence, the record of the player, any suspecting mitigating factors, or any other unusual feature of the report . The Australian Football League Tribunal includes a chairman, a deputy chairman, six ex-players who act as a jury members and a secretary. The basic process of the Tribunal is to determine whether or not a player is guilty or innocent of their charge. This process is decided by the Jury which is made up of three of the six possible members. The Chairman manages the process and decides on points of law, and as such, the person who sits as chairman, David Jones, is a retired County Court Judge, as is his deputy chairman, John Hassett. The role of the Tribunal is to determine whether or not a player was guilty of the charge laid against them, and can also determine if the level of the charge should be changed if the player chooses to contest that or another specific element of their charge . This illustrates that the Australian Football League has taken significant steps to ensure that the process of the Tribunal hearing is fair, and by having a strong legal influence and former judges to determine points of law, it appears as though the Australian Football League has adopted a much more legally creditable system that is heavily influenced by Australian public law.

The Australian Football League’s Tribunal operates in a very similar manner to that which administrators make decisions in Australian public law. In public law the basic role of the administrative decision maker is to engage in statutory interpretation, in which they answer questions of law by correctly interpretation the relevant statutory provision. The Australian Football League’s Tribunal and Match Review Panel similarly uses the articles of association and table of offences as its ‘statute’ to determine which relevant factors will be used to mount a charge against a player. Administrators also must decide on the relevant questions of fact which arise during a case, and usually involve matters of primary fact such as who did what to whom. This is again very similar to the Tribunal process of the Australian Football League, however as the Australian Football League isn’t a statute; the Table of Offences and subsequent questions of fact can often become indistinguishable. This is due to the fact that the Tribunals table of offences is basically a description of primary fact that is used to grade the level of offence in the subsequent charge. Of course there is still much debate that can surround such contentious issues as what exactly constitutes high contact, or the difference between an in-play or out-of-play incident. The correct definitions of these terms consequently are very much playing the role of questions of law in the context of the Australian Football League’s Tribunal. The third role of administrators in coming to their decision is to determine exactly how the statue once correctly interoperated, applies to the facts of a relevant case. Often administrators are assisted in this task by a policy or a set of guidelines which act to help assist them in reaching their final decision. The Australian Football League’s Tribunal also operates in a similar manner, with the Tribunal following the guidelines of the Tables of Offences, combined with the questions of law and fact to determine the charge. This therefore illustrates that the decision making process of an administrator in public law in Australia is very similar to the decision making process that is used by the Australian Football League’s Tribunal and Match Review Panel to determine a charge on a player.

The Australian Football League Tribunal also offers a system by which a player charged with an offence is able to challenge the charge by appeal to the Appeals board, which is similar to the way in which a decision can be appealed against in Australian public law. In previous years the accessibility to the appeals board was quite heavily financially burdened onto the clubs, with a cost of approximately $10,000 to lodge an appeal. The 2006 season saw the Australian Football League Tribunal and Appeals Board adopted a cheaper, $5000 – with $2500 non-refundable, as the cost of appeal. The grounds for appeal that exist include, an error in law, that a decision was so unreasonable that no Tribunal acting reasonably could have come to that decision having regard for the evidence before it, classification of offence manifestly excessive, or the sanction imposed was manifestly excessive. The Appeals board is run in a similar manner to the Tribunal, with Chairman, Jury and Secretary. The Chairman for the Appeals board, Peter O’Callaghan QC and his deputy chairman Brian Collins QC, both have a high level of legal expertise, and are often assisted by other legal council, whilst many players these days are also represented by legal council. The Appeals Board also enables players to seek leave of the Appeals Board so as they may produce fresh evidence; provided that the appellant can convince the Appeal Board that the evidence sought to be produced could not by reasonable diligence have been obtained prior to the conclusion of the Tribunal hearing and where that evidence is of sufficient value that had it been presented before the Tribunal, the Tribunal would have reached a different decision. This again illustrates the level of legality involved in the Appeals Board process, and demonstrates that the Australian Football League has attempted to add credibility to the system and develop a more legally inclined procedure and process that are strongly influenced by legislation established in Australian public law bodies.

Go_Dogs
07-03-2007, 09:46 AM
The Australian Football League’s Appeals Board has many links with legislation established in Australia, such as the Administrative Decisions (Judicial Review) Act 1977 (The AD (JR) Act). The AD (JR) Act provides in s5(1) that a person who is aggrieved by a decision my apply for a review of the decision to either the Federal Court or the Federal Magistrates Court, for one of numerous reasons. These reasons include; s5(1)(a) a breach of the rules of natural justice, s5(1)(b) the procedures as required by law were not observed, s5(1)(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, s5(1)(f) the decision involved an error of law, whether or not the error appears on the record of the decision, s5(1)(h) that there was no evidence or other material to justify the making of the decision. The reference in s5(1)(e) to an improper exercise of power can be construed as including many improper exercises, such as s5(2)(a) taking an irrelevant consideration into account, s5(2)(b) failing to take a relevant consideration into account, and other such matters including, s5(2)(f) an exercise of discretionary power in accordance with a rule or policy without regard for the specific merits of the particular case, and also s5(2)(g) an exercise of power that is so unreasonable that no reasonable person could has so exercised the power. The AD (JR) Act’s referral to a ‘person aggrieved’ is defined as a person whose interests are adversely affected by the decision or conduct. This has often been demonstrated in Australian case law, in one case Gummow J stated that “the AD(JR) Act is ambulatory in its operation and draws within its scope a diverse and extensive collection of decision making processes, truly an undisclosed class” . Gummow J also referred to the frequently adopted observation of Ellicott J from which gave effect to the meaning of a person aggrieved to not be encased by any technical rules, of more important are the relevant facts of the particular decision, and the extent to which the interest of an applicant rises above that of an ordinary member of the public . The basis of not giving a narrow meaning to a person aggrieved is understandable when considering the wide nature of decisions under Commonwealth enactments which are available to review under the AD (JR) Act . These sections of the AD (JR) Act are quite similar to those established in the Australian Football League’s Articles of Association that govern the grounds on which a player may appeal a decision laid down by the Tribunal.

These sections of the AD (JR) Act have many similarities with the Australian Football League’s Appeals Board process, as well as a few points of difference which arise. The Australian Football League’s Appeals Board is obviously going to be used by a person who was aggrieved by the decision, that is, the player whose interests (their playing football) were adversely affected by the decision of the Tribunal for them to be banned and therefore not be available to play. This is obviously a much narrower and straight forward interpretation than those required by the ‘persons aggrieved’ test, or that of the ‘special interest’ test that was established at common law for the remedies of declaration and injunction. However, many of the reasons to apply to the Federal Court or Federal Magistrates Court have striking similarities to that basis of Appeals that are used by the Australian Football League’s Appeals Board. The AD (JR) Act s5(1)(f) involves an error of law, which is identical to an option available to players and their legal council when applying for an appeal. Peter O’Callaghan QC stated in a case involving Essendon player, Andrew Lovett, that the Appeals Board did not have the power to overturn a verdict handed down by the Tribunal if all the points of law, and proper procedure has been followed, as the Chairman has upheld in numerous other cases this year, including one against Collingwood player Alan Didak. The Didak hearing saw Collingwood player advocate Terry Forest QC appeal the charge on the grounds that the decision was so unreasonable that no reasonable Tribunal could have come to the decision that was made given the evidence presented before it. This ground of appeal is a clear link to that outlined in AD (JR) Act s5(1)(e) and subsequently s5(2)(a)(b)(f)(g) which state that a decision was an improper exercise of power on the basis that irrelevant considerations were taken into account, whilst more relevant factors weren’t, not made on the merits of a particular case, and being so unreasonable that no reasonable decision maker in that position could have so exercised their powers. The Board disagreed and in handing down the finding, chairman Peter O'Callaghan QC said the Appeals Board was there to review the process by which the Tribunal came to its verdict and not rehear the evidence of the case. This is almost identical to the procedure used by the AD (JR) Act, simply put a merits review cannot be conducted, and unless there was a legal error or an error of procedure, it is very unlikely that a decision will be over-ruled. Under that AD (JR) Act s5(3)(a) and s5(1)(h) it is clear that a decision is invalid if there is a lack of evidence to support an essential statutory element of the decision . The view of some significant cases in Australia demonstrate that s5(3)(b) of the AD (JR) Act is strictly only available to discoveries of fact that are crucial to the final decision, and that a person whom is relying on this ground of ‘no evidence’ must be able to clearly conclude that the decision maker had relied upon a fact which didn’t exist . This is again very similar to the rules of the Appeals Board, which allows for leave to be granted to the Appeals Board to seek new evidence, however it only exists if the evidence was unable to be obtained prior to the conclusion of the Tribunal hearing by reasonable diligence, and if the material is sufficient in so that if it had been presented to the Tribunal, the Tribunal would have reached a different decision. The additional requirement that is established by s5(3)(b) will therefore prevent the making of an order for review in the circumstances that, although there was no evidence or other material of a particular fact upon which a decision was based, it is clear enough that the particular fact did exist . This again emphasizes the heavy influence on the Australian Football League’s Tribunal and Appeals process from public law established in Australian legislation, such as the AD (JR) Act and principles derived from cases.

The Australian Football League’s Tribunal and Appeals Board has many striking similarities to those established in public Australian law under legislation such as the Administrative Decisions (Judicial Review) Act 1977. These similarities extend from the process in which the Match Review Panel and Tribunal act as administrative decision makers to initially charge a player. This is based around the principles of question of law and question of facts, as well as an interpretation of guidelines that are established under the Table of Offences, which is essentially a less complex, but highly related procedure similar to that carried out by administrators making decisions every day in Australian society. The Australian Football League’s Appeals Board also has many similarities with the AD (JR) Act, extending from the grounds for appeals, such as an error of law, to a decision that was so unreasonable that no reasonable decision maker could have exercised their power in such a manner on the basis of the facts of a particular case. This is a common ground for judicial review under the AD (JR) Act, and also under the Australian Football League’s Appeal board as illustrated by several cases which have come under consideration during the 2006 season.

southerncross
07-03-2007, 10:01 AM
McMahon 23, thanks for this as it is a very interesting and an informative read.

Sockeye Salmon
07-03-2007, 02:00 PM
That's a lot of words!

The format of the tribunal process is excellent. The implementation is dreadful!

Any of us who follow footy should be able to see an instance on field and say "that's high, in play, low impact and negligent. He'll get 4 points", and we should be right within a point or two (discounting obvious team bias).

If you appeal and lose you should have to cop the extra 25% (none of this "we're only appealing against 'reckless' crap) and the appeal should only be upheld when there's been a ****-up (like Krakuour a week or two ago).

What happens is the review panel pulls some apparently random number out of their bum and then the appeals board lets him off anyway if you whinge loudly enough in the media.

alwaysadog
07-03-2007, 03:47 PM
That's a lot of words!

The format of the tribunal process is excellent. The implementation is dreadful!

Any of us who follow footy should be able to see an instance on field and say "that's high, in play, low impact and negligent. He'll get 4 points", and we should be right within a point or two (discounting obvious team bias).

If you appeal and lose you should have to cop the extra 25% (none of this "we're only appealing against 'reckless' crap) and the appeal should only be upheld when there's been a ****-up (like Krakuour a week or two ago).

What happens is the review panel pulls some apparently random number out of their bum and then the appeals board lets him off anyway if you whinge loudly enough in the media.

Really good read Macka 23.

It strikes me the current sytem is deslgned to do little other than to persuade players not to contest charges against them. So much for the presumption of innocence.

IMHO they always change the wrong aspect of the tribunal.

What they have to get rid of is the special pleading that goes on and which is reinforced by those clubs who whip up a media frenzy when one of their players is involved.

Mitigation should be considered rarely and only after a player has been found guilty not prior. It shouldn't matter if JC himself did it. If he did, he's got to cop his punishment.

This is predicated on the assumption that th esystem is about a fair and reasonable application of the rules of the game. On sober reflection this is naive. It's really at the centre of the tabloid media circus that the game relies on for ratings and therefore it's income.

In the media at large the worse the crime the bigger the coverage and the more prurient the interest the better for sales and ratings. Andrew and the heavies know this; I'm sure they are so conscious of what some journos do that they monitor Mike Sheehan's farts and send him appropriate balm every time his bowels rumble.

On the other hand much as I think the media has an odd preoccupation with the darker side of the game we have not got to the stage where good news is not covered or given second place. Yes the media pack does seem to bey at the moon too frequently and never lets the facts get in the way of a few extra feet of film or column inches, but we let them do it because we take it too seriously, perhaps we should just laugh at their silliness.

BulldogBelle
07-03-2007, 09:55 PM
I really enjoyed reading that McMahon#23, it is very well thought out and written. Good stuff. :)

Go_Dogs
08-03-2007, 09:09 AM
Thanks everyone, I was a little bit surprised that there were replies, thanks for taking the time to read it.

Sockeye Salmon
08-03-2007, 10:01 AM
Thanks everyone, I was a little bit surprised that there were replies, thanks for taking the time to read it.

I didn't read all of it, there were some words that were a bit too big.

I do know some big words, though, like "wheelbarrow" and "marmalade" and "Giansiracusa".