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A question of doubt
Thoughts on quasi-judicial committees vs state courts .
By Alan Manly and Greg Whateley
The MeToo # hashtag had more than 19 million respondents in its first year alone , with many survivors disclosing their stories for the first time . It became , as Tarana Burke ( the acknowledged founder of the movement ) puts it “ one of the biggest stories of the decade ”.
With the enormity of the issue in mind the university sector enhanced current student / staff welfare committees or Student Disciplinary Boards to address this issue .
Manned by academics with good intentions , and maybe with a new sense of activism , the committees continued in their usual manner to make administrative decisions plus take on the responsibilities of the newly highlighted Sexual Assault and Sexual Harassment issue .
Interestingly , assault had in the past been a crime and therefore a police matter taken to court for adjudication . This being the way of the old judicial system established in all States of Australia since the mid-1800s .
WHAT ABOUT BEYOND REASONABLE DOUBT ?
The self-titled Quasi-Judicial Committees ( QJC ) would ignore the established courts as they had determined a lower level of evidence was required than that used in criminal law . “ Beyond reasonable doubt ” was replaced with “ in all probability ” for all matters , whether the courts had considered issues criminal or not . Further , the QJC had new era guidelines that included that the accuser , known as victim , would be protected with anonymity .
The accused , known as the perpetrator , would be sanctioned immediately . Any accused teaching staff member or student would be banned from the campus and immediately named and shamed on social media where anonymous writers could demand immediate action and expand their thoughts regarding punishment .
Satisfying for the accuser – but no doubt disconcerting for the accused .
JUSTICE DELAYED IS JUSTICE DENIED
Senate hearings raised concerns about natural justice leading to the QJCs being called ‘ Kangaroo Courts ’ – a supportive thought however was captured in ‘ Justice delayed is justice denied ’, being the quote from William E Gladstone Prime Minister of England .
Further refinement saw the banning of lawyers . The accused would not be allowed lawyers in any hearings . Shakespeare may have looked on with amusement as his joke seemed to be taken seriously . “ First we will kill the lawyers .”
An obvious question is raised , would the brand new QJCs with instant decisions , no lawyers or judges give better justice ? A thought that may not have occurred to the proponents of the QJCs is that the old courts with lawyers , judges and massive infrastructure established in Australia since the 1800s would also be the ones to adjudicate the merits of the new QJCs .
A quick review of the two systems reveals :
Court System : established in the 1800s with millions of precedents ; trained judges and lawyers ; concept of natural justice ; afforded judicial immunity .
Quasi-Judicial Committees ( QJCs ): established by universities in recent times ; no reference to precedent ; lawyers banned ; no legally trained judges ; no judicial immunity .
The inevitable clash occurred between a State Supreme Court and a prestigious university .
The university QJC issued a student with an “ Allegation Notice ”. This was followed up with documentation to and fro . Finally the student filed in the State Supreme Court an application for relief under Judicial Review . A hearing followed in due course . The parties are listed as the applicant being the student , who the court deemed to be able to be allowed to remain anonymous . The first respondent was the University and interestingly the second respondent was the QJC under another title . The decision is made clear . The second respondent was restrained from proceeding with the “ Allegation Notice ”. The respondents were required to pay costs ( that is both respondents being the University and the QJC to pay costs ). What can be learnt from the case study ? The established courts will not give up authority in a hurry . “ The one great principle of the English law is , to make business for itself . There is no other principle distinctly , certainly , and consistently maintained through all its narrow turnings ,” a quote from Bleak House intended to illustrate the evils caused by long , drawn-out legal cases in the Court of Chancery .
The members of the Quasi-Judicial Committee may be well advised to review the meaning of the word ‘ quasi ’ - “ having some , but not all of the features of ”.
The feature that may be keeping some members of the Quasi-Judiciary Committee awake at night could well be the costs for a hearing in a Supreme Court with lawyers and barristers on full fee . Maybe the members of the QJC would be wise to consult a formerly banned lawyer . ■
Alan Manly is chair , and Greg Whateley is deputy vice chancellor and vice president ( Academic ) at Group Colleges Australia .
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