1. Review and Regulation List, VCAT
Disciplinary Hearings in the Regulated Professions: Procedural Fairness Issues
Elisabeth Wentworth
Deputy Head of List
Review and Regulation List, VCAT
Presentation for COAT Victoria Conference April 2016

2. Overview
Disciplinary hearings involving regulated professions: a snapshot of VCAT’s jurisdiction
Procedural fairness components and some cognitive biases to ponder
Procedural fairness hazards for panel, board and tribunal members in disciplinary proceedings

3. VCAT’s jurisdiction
Review and Regulation List: disciplinary proceedings in a range of regulated professions and occupations
Legal Practice List: cases relating to the conduct of legal practitioners
Applications are made for review, the conduct of an inquiry, referral of allegations, and for orders

4. Regulated professions within VCAT’s jurisdiction
Architects
Building practitioners
Health practitioners
Legal practitioners
Surveyors
Teachers
Veterinary practitioners

5. Overview of procedural fairness and its components
Two main components
A fair hearing:
A right to know what the allegations are
A reasonable opportunity to be heard on the question of whether the allegations are true, and on whether or not adverse action should be taken
No bias on the part of the decision-maker – real or apprehended

6. Procedural fairness hazards
Bias
Real or apprehended?
Understanding cognitive bias
What might give rise to apprehended bias?
Some practical suggestions

7. Procedural fairness hazards
Inappropriate use of own knowledge and expertise
Has particular relevance to panel, board and tribunal members appointed because of their professional knowledge or expertise
Where is the line drawn and what should be disclosed?

8. Procedural fairness hazards
Undisclosed conflicts of interest
The requirement of disclosure and the reasons for it
What should be disclosed – some questions to consider
If in doubt…..
The risk of prejudgment

9. Procedural fairness hazards
Failing to provide an opportunity to be heard on penalty after adverse findings are made
Clear statements of appellate courts from about 2011
The hazards of unclear or poorly particularized allegations
Penalty privilege

10. Conclusion
There is no comprehensive manual and errors have been made by decision-makers at all levels
There are endless subtleties in the case law but the central principle is clear – disciplinary proceedings should be manifestly fair:
a fair process and a decision-maker whose mind is open to persuasion