Congratulations on your appointment as a member of the Merit Protection Boards or the Disciplinary Appeals Boards.
As a Board member, you bear a serious responsibility when adjudicating upon appeals.
All the decisions of the Merit Protection Boards and the decisions of the Disciplinary Appeals Boards decisions are final. The parties may only seek a Judicial Review of the decision from the Supreme Court of Victoria. Such decisions can have a profound effect on the lives and careers of the people concerned and the operations of the Department of Education.
The information contained in this brochure is designed to assist you with the discharge of your important duties as a Board member.
Starting your term of office
All Board members are required to be sworn in before they sit as a member of a Board. The Senior Chairperson will administer to you the oath or affirmation prescribed by the legislation which requires you to hear the appeal/grievance fairly and impartially without fear, favour or affection.
The role and responsibility of a Board member
Your duty to the Board
It is of fundamental importance that you understand that your only allegiance when adjudicating on a hearing is to the Board. The law requires you to act with fairness and impartiality independent of any sectional interests of either party.
The legal position is well set out in the judgement of the former Chief Justice of NSW, Sir Laurence Street, in Bennetts v. Board of Fire Commissioners (1967) 87 W.N. (Pt.1) (N.S.W.) 307 at 309–310, as follows:
"The consideration which must in board affairs govern each individual member is the advancement of the public purpose for which parliament has set up the board … His position as a board member is not to be used as a mere opportunity to serve the group which elected him … In particular, a board member must not allow himself to be compromised by looking to the interests of the group which appointed him rather than to the interests for which the board exists. He is most certainly not a mere channel of communication or listening post on behalf of the group which elected him. There is cast upon him the ordinary obligation of respecting the confidential nature of board affairs where the interests of the board so require … Once a group has elected a member he assumes office as a member of the board and becomes subject to the overriding and predominant duty to serve the interests of the board in preference, on every occasion upon which any conflict might arise, to serving the interests of the group which appointed him."
Disqualification for bias
You should disqualify yourself from sitting in respect of a case if there are grounds for reasonable suspicion of bias or prejudice on your part.
There are often cases where a Board member will know or have knowledge of one or more of the persons concerned in a case. Such knowledge will not of itself establish that the member should refrain from sitting. Each case will depend on its individual circumstances.
For example, it would be plainly wrong to sit as a member of a Board if one of the parties to the appeal/grievance is a relative or close friend of yours. On the other hand, if the knowledge and association extended only to a person concerned in the appeal/grievance working with you in a professional capacity, there would probably be no basis for disqualification.
Initially these questions of possible bias or prejudice are ones for your own conscience. If you consider some past or present association with a person concerned in the case inhibits the bringing of a totally independent mind to the case, you should withdraw.
A decision to withdraw from the case is not an admission that there is any actual bias or prejudice on your part. If circumstances exist which would cause a reasonable person to suspect bias or prejudice that is enough to require withdrawal.
The position is conveniently summarised by Lord Hewart, C J in Rex v. Sussex Justices Ex Parte McCarthy (1924) 1 KB 256, 259, viz:
"It is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done."
Expressed in simple terms, you must decide if the connection between you and any person concerned in the case will give the appearance that it may influence your decision.
If you have had any past association with the parties involved you should inform the Senior Chairperson of the circumstances of such association well before the hearing. The Senior Chairperson will give you advice and assistance if you are in any doubt as to the action you should take.
You should also refrain from sitting if you have had prior involvement in the process that led to the decision which is the subject of the case. In such circumstances your correct role in the hearing may be as a witness where this is appropriate, not as an adjudicator.
There may be occasions either prior to the hearing or during adjournments of the hearing, when you will by chance come in contact with the parties, their representatives or witnesses. On any such occasion you should avoid conversing with them beyond the ordinary courtesies. This is to ensure that there are no grounds for suspicion about your impartiality. Under no circumstances should you discuss anything to do with the case.
The conduct of the hearing is the sole responsibility of the Chairperson.
In selection and personal grievance hearings conducted by the Merit Protection Boards it is the practice of the Chairperson to invite the members to ask questions of the parties. If you do ask a question, be careful to ensure that it is relevant. The question should also avoid repetition of material that is already set out in the documents provided by the parties.
Disciplinary appeal hearings are more formal and the parties may be represented by advocates and evidence given under oath. The Chairperson does not normally invite questions by the Board members however if there is some aspect of the evidence that you do not understand, or if you require some further information not disclosed by the evidence, you should bring this to the attention of the Chairperson.
After the hearing
When the hearing has concluded the Chairperson and members confer about the evidence in order to reach a decision. The Merit Protection Boards has the power to investigate further and occasionally may seek expert advice such as a legal opinion, to assist it in making its decision. In these circumstances procedural fairness is strictly followed.
The Chairperson and each member have equal voting rights in respect of a case. Board decisions generally are unanimous however, the members may not agree and the Board’s decision is by majority. You should of course, adhere to the decision which you think is right irrespective of whether this places you in agreement with your Board colleagues or not.
Confidentiality of Board deliberation
The range of discussion necessary to arrive at a decision in a case can vary in extent. Consistent with a member’s legal responsibility to the Board and the necessity for a free and frank exchange of views, it is important that you ensure any such discussion remains without exception, strictly confidential.
Each Board is required by statute to publish written reasons for its decision. These written reasons comprise the only material arising from the consideration of the evidence that should be made public. Each Board will prepare these reasons at the conclusion of its deliberations.
Participation as a Board Member
You will be contacted prior to a hearing date to check your availability. All documentation provided by the parties will be emailed to your designated address several days prior to the hearing wherever possible. You should carefully read these documents and make any notes you think are appropriate. It is important that Board documentation remains confidential and is kept in a secure place. Please bring the documentation with you to the hearing, after the hearing it should be returned to the Registrar for shredding.
It is advisable to arrive for the hearing approximately 30 minutes beforehand. This provides to opportunity to meet with other Board members and to discuss any issues.
If you are a teacher and are available to service on a Board, your school will receive reimbursement for your absence at the current Casual Relief Teacher rate. A Tax Invoice should be sent to your Regional Office for payment.
Travel costs (ATO rates) and parking expenses will be reimbursed either through a Personal Claim form for Department employees or can be claimed on a Tax Invoice. Disciplinary Appeals Board members that are not Department employees will be paid at the predetermined rate.
Should you be in doubt about any aspect of your role and duty as a Board member you should discuss the matter with the Senior Chairperson. The Senior Chairperson will provide you with advice to assist you in discharging the important responsibility that you have accepted.
Additional information for Disciplinary Appeals Boards board members