29 Oct 2020

The right to reputation: natural justice and human rights issues in administrative and regulatory investigations

By Eleanor Dickens, Sam Weston and Hilary Baker

Agencies and investigators should implement processes such as checklists and decision-making guides to ensure that administrative and regulatory investigations comply with any human rights legislation.

Public sector investigators conducting regulatory and administrative investigations (such as investigations into public sector wrongdoing, corruption, maladministration and integrity breaches) have always contended with a myriad of legal issues and risks surrounding natural justice requirements in respect of adverse findings and adverse reputational comments arising in investigative processes and reports.

While the issue of the protection of reputation has long been a consideration in terms of natural justice obligations, the question now is what the impact of statutory human rights frameworks on these legal issues and risks will be. Specifically, will administrative and regulatory investigations involving individuals become more complex and challenging with the advent of statutory human rights frameworks such as Queensland's Human Rights Act 2019 (considered below), now that reputational rights have become enshrined in human rights legislation?

Protecting an individual's reputation – natural justice, adverse findings and comments

The protection of an individual's reputation has long been recognised by the Courts through natural justice obligations and requirements.  Natural justice requirements surrounding adverse findings in administrative and regulatory investigations, particularly those conducted under a statutory framework, are clear. Before any findings or final conclusions likely to affect a witness or subject person/entity are made, the affected individual must have put to them all adverse material that is "credible, relevant or significant", and be given a reasonable opportunity to respond.  

In respect of adverse comments, in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the High Court made clear that reputation is an interest attracting the protection of natural justice.  This means that while it may be legally permissible to make general observations and comments about an individual's behaviour or demeanour, natural justice requirements are triggered where those observations and comments are adverse and have potential future adverse consequences for the individual concerned.  Furthermore, these protections and considerations may be triggered, even where the subject information is not formally published or made public such as in circumstances where such comments are included in a confidential report with limited circulation.

A failure to properly discharge this obligation can expose an individual to reputational damage and the investigator, regulator or public sector agencies to legal challenge, including by way of judicial review proceedings or declaratory relief from the Courts depending on the nature of the framework under which the investigation is being conducted.   

The impact of Queensland's Human Rights Act

While the requirements surrounding reputation and natural justice in respect of adverse findings and comments are well embedded legal principles and requirements, one key issue that has emerged is the effect of the Human Rights Act 2019 (HRA) on administrative and regulatory investigations and the protection of reputation in these processes. 

In short, the HRA makes it unlawful for public entities to act or make decisions in a way that is not compatible with human rights or to fail in making a decision to give proper consideration to human rights.  Proper consideration of human rights has been said to require a decision-maker to understand generally the relevant human rights, whether these rights will be affected by the subject decision and the impact of the decision on the affected person's human rights including by identifying the countervailing interest or obligations.

Section 25 of the HRA establishes a right for a person not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and to not have their reputation unlawfully attacked. Examples of a possible failure to properly consider the "privacy/reputation" right in an administrative or regulatory investigation may include making unjustified or irrelevant adverse comments or findings about a person or revealing intrusive and irrelevant personal information in an investigation report. 

In administrative and regulatory investigations, in the context of the application of the HRA, questions will undoubtedly arise as to what in fact constitutes the relevant "act or decision". Is it the decision to commence an investigation, undertake the investigation, the conduct of the investigation or the ultimate decision to accept the investigation report as being the decision or act which is subject to the HRA Although at this stage there is limited judicial guidance on the application of the HRA to these investigative processes, investigators, regulators and public entities subject to the HRA should assume that it will apply to the final, decision based stages of an investigation. 

The impact of the HRA on public sector workplace investigations has been acknowledged by the Queensland Public Service Commission’s Directive on Workplace Investigations, which notes a decision-maker’s obligation to give proper consideration to human rights when making a decision, and also explicitly requires an investigator to inform a subject employee of the substance of any allegations, or grounds for adverse comment, against them.

Ensuring compliance with human rights legislation

The principles of natural justice can invoke similar concepts and issues to those arising under the HRA in respect of the right to reputation. Investigators and decision-makers involved in administrative and regulatory investigations are therefore well-placed to introduce specific processes and procedures to ensure that decisions amenable to the HRA comply with the requirements of the HRA and duly consider relevant human rights in the decision-making process, particularly the right to reputation.

The other key impact that the HRA may have is to raise awareness of the legal protections surrounding reputational damage and in doing so raise awareness of natural justice requirements, including those identified in Ainsworth, relevant to the protection of the reputations of witnesses and subject individuals.  Thus, it may be that Ainsworth-related complaints surrounding natural justice failures become more prevalent as awareness of these protections rise across the community. 

While there remains a lack of clarity surrounding the scope of the application of the HRA to investigative processes and the impact of the HRA on these processes, agencies and investigators should implement processes such as checklists and decision-making guides to ensure that an investigation complies with the HRA and does not expose the investigation process to claims of breaches of the HRA.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.