Related Knowledge
As the adoption of "victim focused" or "trauma informed" processes (TIP) in complaint and investigation processes increases, it is timely to assess these mechanisms in the context of natural justice obligations and requirements and to consider whether and how TIP mechanisms and natural justice obligations can coexist.
Adoption of TIP mechanisms and "zero tolerance"
The past five years have seen an increase not only in the awareness of TIP complaint and investigation processes but also the incorporation of these mechanisms into a range of public sector complaints, investigation and decision-making processes. Facilitating this increase has been a range of controversies and scandals – across the private and public sectors – which have highlighted the use of TIP mechanisms as part of a "zero tolerance" approach in responding to and dealing with conduct related wrongdoing, particularly wrongdoing such as assault, harassment, bullying, sexual harassment and discrimination.
This article is not an assessment of the merits or effectiveness of TIP, nor is it motivated by an assumption that TIP mechanisms undermine the principles of natural justice or the protection of reputation. Instead, it is now timely to consider TIP mechanisms in the context of natural justice obligations and requirements and assess whether these mechanisms present challenges and specific legal risks in relation to affording natural justice to subject persons and officers in complaint and investigation processes.
What are trauma-informed processes?
TIP mechanisms have been considered in the context of there being perceived deficiencies in existing processes and procedures for dealing with and investigating complaints involving unique distress or trauma to a complainant, such as those involving allegations of assault, bullying, sexual harassment or related incidents. These deficiencies include concerns that complaint handling systems need to be more responsive to the needs of the complainant-victim.
This is based on recognising that apart from any trauma experienced from the incident itself, the process of a formal complaint and investigation may often result in the complainant 're-living' much of the trauma – manifested for instance, in their exposure to questioning of a highly personal and sensitive nature likely to be detrimental to their psychological or social wellbeing. It is also recognised that the experience of 're-living' such trauma may degrade the investigation process by resulting in inaccurate or incomplete evidence.
In these circumstances, TIP refers to a range of supportive practices designed to minimise the effects of a complainant having to re-live trauma during an investigation and decision-making such as:
- de-identifying or redacting aspects of an allegation, usually highly sensitive personal information;
- not disclosing the identity of a complainant or witness;
- allowing anonymous complaints and witnesses;
- limiting the manner, and scope, of obtaining evidence from a complainant; and
- ensuring personal or sensitive information is not disclosed other than to the investigator or decision-maker.
Relevant natural justice obligations
Natural justice is a fundamental legal principle which effectively provides that where a person's rights or interests are affected by an exercise of a statutory power, the person has a right to be heard by an impartial decision-maker. What is required to afford natural justice will depend on the facts and circumstances of a particular matter but on a routine level it can commonly comprise a right to fully respond to adverse material, an opportunity to test the veracity of a person's evidence (through cross-examination for example) and a right to access material in which claims have been detailed.
It is also well established that natural justice must be afforded to decisions that can affect an individual's reputation: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. 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.
Tension between TIP mechanisms and natural justice obligations?
There are a number of examples where there is the clear capacity for TIP mechanisms and natural justice obligations to conflict or at least give rise to legal pressure points.
Queensland cases such as Vega Vega v Hoyle [2015] QSC 11 and Wirth v Mackay Hospital and Health Service [2016] QSC 39 found that a high level of disclosure was required to afford natural justice to medical practitioners who were subject to non-clinical complaints and allegations of wrongdoing in the workplace. This high level of disclosure required that the actual identities of complainants and witnesses be disclosed as it was considered necessary to enable the subject practitioners to properly respond to these allegations. In both cases, it was effectively found that this approach was necessary given the nature of the allegations and the concern of adverse professional outcomes and reputational damage. Considering these cases, TIP mechanisms such as anonymous complaints, the non-disclosure of some aspects of a complaint and particulars, or the identities of complainants and witnesses triggers a clear legal tension with natural justice obligations.
Complaint processes and practices which seek to provide high level support to complainants throughout the complaint process could give also rise to claims of apprehended bias because they could be perceived as affording preferential treatment to the complainant and therefore claims that the investigator or decision-maker lacks impartiality. In the decision of Keating v Morris (2005) QSC 243, the Queensland Supreme Court held that accumulated instances of certain conduct of the Commissioner, during the Commission of Inquiry into the Bundaberg Base Hospital, were sufficient to establish ostensible bias. Relevantly, two witnesses alleged that they had been subject to differential treatment by the Commissioner as compared with how the Commissioner engaged with certain other witnesses, including the whistle-blower. This conduct included positive endorsement of some witnesses rather than others, conducting private meetings with potential witnesses and preferential treatment of other witnesses. Given that evidence of preferential treatment can easily trigger concerns about perceptions of partiality and ostensible bias, complaints processes and procedures need to be mindful of not exposing the investigator or decision-maker to claims of ostensible basis by adopting practices which could be seen to be preferential to the complainant.
Dealing with these tensions – takeaway points
As the use of TIP mechanisms is an evolving and developing area, there is as yet, no clear pathway forward as to how tensions with natural justice obligations should generally be managed. Additionally, because what is required to afford natural justice in a given case depends on the facts and circumstances, there are no clear guiding principles to deal with this issue, nor is there ever likely to be a "one stop shop" formula.
As a first step, when designing and implementing processes and procedures which include TIP mechanisms, agencies should robustly test and consider these processes and procedures in the context of natural justice obligations and requirements. This should be ongoing with processes and procedures reviewed and considered on a continual basis through this lens. Policies and procedures that have been in place for some time should also be reviewed and considered.
Those dealing with or investigating complaints and allegations need to be acutely aware of the legal risks and issues when dealing with natural justice obligations in processes which adopt TIP mechanisms.
In this developing area of law, acknowledging that TIP mechanisms have the potential to pose and trigger specific natural justice risks is the first step in seeking to manage natural justice related risks and issues.