6.2.5.3 Additional aspects of the new rule relevant to an assessment of its reasonableness
285 The following aspects of the new rule are also relevant to an assessment of its reasonableness.
286 First, as a result of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) which commenced on 30 April 2018, it can reasonably be anticipated that any delay in finalising Mr de Belin's criminal charge before the District Court will be relatively shorter than under the previous procedures. Under the amendments, the magistrate is no longer required to make a decision about the sufficiency of the evidence before committal for trial; rather, the prosecutor must certify that the evidence available is capable of establishing the elements of each offence the subject of the proceedings (see s 66(2), Criminal Procedure Act 1986 (NSW); see also NSW Judicial Commission, Local Court Bench Book - Committal Proceedings (from 30 April 2018) at [32-000]-[32-040]). Furthermore, following committal, the District Court's ideal time standards for the commencement of a criminal trial is, relevantly, 100% of sexual assault trials within 8 months of committal (District Court of NSW Annual Review 2017 at p. 15 (exhibit R1, tab 3)). Nonetheless, as I have earlier held, there was ultimately no issue between the parties that the precise time that it may take for Mr de Belin's charge to be determined is presently unknown and it is possible that he may miss one or two seasons while he is stood down.
287 Secondly, the fact that the DPP has instituted legal proceedings in respect of a very serious crime against Mr de Belin carries with it, as the respondents contend, the irresistible inference that the prosecution believes that the case is one founded upon evidence reasonably considered to be reliable and admissible. As such, it provides a rational and reasonable factum for attracting the operation of an automatic rule where such serious and damaging charges are laid, as recognised in rule 22A(2).
288 Thus in New South Wales, the decision to lay charges of the type laid against Mr de Belin is vested in the Director of Public Prosecutions (DPP) which is an independent professional service for the prosecution of serious criminal offences. The performance of the DPP's functions must be carried out in compliance with the Prosecution Guidelines of the Office of the DPP (ODPP Guidelines) made under s 13 of the Director of Public Prosecutions Act 1986 (NSW). Further, the ODPP and Crown Prosecutors must carry out their duties in compliance with the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors (IAP Standards) promulgated by the International Association of Prosecutors reproduced in Appendix A to the Guidelines (ODPP Guidelines at p. 4). Among other things, in deciding whether to prosecute, the ODPP Guidelines explain that:
The question whether or not the public interest requires that a matter be prosecuted is resolved by determining:
(1) whether or not the admissible evidence available is capable of establishing each element of the offence;
(2) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not
(3) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest.
(ODPP Guidelines at p. 8)
289 In assessing these matters, the prosecutor must make an independent, objective, and impartial decision having regard to all relevant circumstances whether they are to the advantage or disadvantage of the suspect (ODPP Guidelines at p. 9; IAP Standards at 1,(f),[2] and [3]). The IAP Standards in turn require prosecutors, in the institution of criminal proceedings, to "proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible" and equally "not [to] continue with a prosecution in the absence of such evidence" (at 4.2; see also 1 imposing the duty to "at all times exercise the highest standards of integrity and care").
290 Furthermore, as the respondents submit, the police and the prosecuting authorities can obtain evidence through the use of coercive and compulsive powers. In a sexual assault case, for example, the police and/or prosecutor will have the benefit of obtaining statements from the alleged victim and any witnesses, as well as having access to medical and other forensic testing. As such, as the respondents submit, it is inevitable that any investigation by the NRL of the alleged conduct which is the subject of the charge in order to determine whether there has been a breach of the NRL Code of Conduct would necessarily be far less complete, unreliable, inexpert, and more prone to error and injustice.
291 Moreover, where criminal proceedings are not yet finalised, there would be a real danger of contempt of court if the NRL were to embark on an investigation into whether the Code of Conduct had been breached and make a determination in a hearing on whether conduct also the subject of the criminal charge had been proved. The questioning of a person charged with a criminal offence about matters relevant to that charge creates a real risk of interference with the course of justice even if carried out in private (Hammond v Commonwealth (1982) 152 CLR 188 at 198 (Gibbs CJ (with whom Mason and Murphy JJ agreed)), 202 (Brennan J) and 206 (Deane J)). As the respondents point out, any such investigation may also prejudice a fair trial given that any finding of a breach of the Code would inevitably receive very wide publicity. As explained in J R S Forbes, Justice in Tribunals (4th ed, 2014) at [12.37]:
… there is a danger of contempt of court if a tribunal hearing is likely to receive such wide publicity that prospective jurors may be prejudiced, or a party will come under pressure to make admissions, or be prevented from giving vital evidence for fear of damaging a case in court. Hammond v Commonwealth [(1982) 152 CLR 188] is an example. A Royal Commission was investigating criminal conduct in the export meat industry and by Hammond in particular. He was arrested and charged within a month of the inquiry's opening, but the Commissioner proposed to examine him at once. The court intervened, but instead of ordering the inquiry to adjourn, it directed the Commissioner to postpone Hammond's appearance until the criminal proceedings were completed.
292 In this regard, it would make no difference whether any finding by the NRL were ultimately of guilt or innocence (in the context of alleged breach of the Code of Conduct). It is well-established that statements as to innocence may equally constitute a contempt in the face of a jury trial: Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616, 626-627 (the Court). Thus, the applicant's submission that a player should be entitled to a hearing before being stood down, and/or by way of review after being stood down, because he may wish to make submissions and lead evidence seeking to exonerate himself based, for example, upon a complete alibi (T426.11-29), must be rejected. An accused person is precluded from adducing evidence in support of an alibi without leave of the court unless notice has been given in accordance with s 150 of the Criminal Procedure Act 1986 (NSW). More fundamentally, the submission overlooks the fact that a determination of innocence may equally interfere with the course of justice.
293 I note however that the applicant's submission on this issue receives some support from the decision of the Canadian Supreme Court in Industrial Alliance Life Insurance Company v Cabiakman [2004] 3 SCR 195 (Cabiakman) which concerned the power of an employer to stand down an employee pending the resolution of criminal charges against him. In that context, the Court considered that an employer was under an obligation to allow an employee to explain the situation if the employee wishes to make representations and provide her or his version of the facts (at [68]). However, those observations did not address a situation such as the present where the highly publicised and formal nature of a determination by the NRL of a breach or otherwise of the Code of Conduct posed a real risk of a contempt of court. Furthermore, and importantly, the Playing Contract bears a dual (but related) character as a licensing agreement for the name, image, and reputation of a player, as well as a contract of employment. If a player has come to be associated, through the laying of sufficiently serious charges, with conduct that is an anathema to the competition in which he has been employed to participate, the negative impact on his reputation can be damaging to the interests of the licensee and sub-licensee of his Player Property if he is permitted to continue to play. Indeed, in this case, damage was occurring even before the commencement of the 2019 season by reason of the seriousness of the allegations against Mr de Belin.
294 Thirdly, there was considerable focus in the submissions of both parties upon whether there were any precedents for the new rule in other sporting codes and more generally. In particular, the applicant pointed to the absence of any equivalent rule in the AFL Rules and the Football Federation Australia Code of Conduct (exhibit R1, tab 2 and 4 respectively) and the lack of any direct precedent otherwise for a no-fault stand down rule that operates automatically in any of the other sporting codes in evidence. Nonetheless, some sporting codes in the United States make express provision following an exercise of discretion for players to be stood down without a hearing on full pay pending the determination of an investigation as follows.
(1) Under the Collective Bargaining Agreement of the National Basketball Association (NBA) dated 19 January 2017, provision is made for investigations by the NBA into alleged violations of the Joint NBA/National Basketball Players Association (NBPA) Policy on Domestic Violence, Sexual Assault, and Child Abuse (NBA/NBPA Policy) (exhibit R1, tab 1 at p. F6). The NBA is required to give prompt notice to the NBPA and the player of the commencement of any such investigation and to notify the NBPA when it has concluded its investigation and report whether it believes that a violation of the NBA/NBPA Policy has occurred (ibid). While an investigation is pending, the Commissioner may at any time place the player on administrative leave with pay for a reasonable period of time where a balancing of all relevant factors clearly establishes that it is reasonable to do so in all of the circumstances (NBA/NBPA Policy at p. F7). Factors to be taken into account include the nature and severity of the allegation, whether the allegations are supported by credible information, the status of any criminal investigation and/or prosecution including whether any arrests have been made, and the risk of reputational damage to the NBA and/or the player's team (ibid). Whilst on administrative leave, the player is ineligible to play in any of his team's games but will continue to receive his salary and other welfare benefits. The player and his team may also request that the player be allowed to participate in non-public practices, workouts, or other team activities with the consent of the NBA.
(2) There is also a discretion under the National Football League's Personal Conduct Policy to place a player on the "Commissioner Exempt List" where relevantly the player is formally charged with a crime of violence including having engaged in a sexual assault by force (exhibit R1, tab 5 at p. 4). A player who is placed on the Commissioner Exempt List may not practise or attend games but with the club's permission may be present at the club's facility on a reasonable basis for meetings, individual workouts, therapy and rehabilitation and other non-football activities (at p. 5).
295 While presumably in these cases, as in the case of NRL players, players are employed by their respective clubs and not by the overarching governing entity, such provisions implicitly recognise that the interests of the competition and the sport may be damaged if a player subject to serious charges or under investigation is permitted to continue to play. The same concern no doubt in large part underlies the right of an employer at common law in Australia to suspend an employee on full pay for a limited period pending the conclusion of an investigation into allegations of misconduct: Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; (2008) 71 NSWLR 633 at [414] and [422] (Rothman J); Waddell v mathematics.com.au Pty Ltd [2013] NSWSC 142 at [106] (Rothman J); Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859; (2017) 272 IR 151 at [164]-[165] and [174] (Lee J); see also A Stewart, Stewart's Guide to Employment Law (6th ed, 2018) at [12.18].
296 The power of an employer to suspend an employee on full pay for administrative reasons because of acts with which the employee has been charged was confirmed by the Canadian Supreme Court in Cabiakman, provided that certain conditions were met. In that case, the respondent was employed by an insurance company and his responsibilities included training and supervising the branch's sales staff, selling investment products and advising customers about transfers of securities and cash. He was stood down without pay pending the determination of criminal charges for an attempt to extort money from his securities broker of which he was ultimately acquitted some two years later. In the judgment delivered for the Court by LeBel and Fish JJ, their Honours pointed to a number of factors by way of example which were relevant to determining whether an employer was justified in temporarily suspending an employee against whom all charges had been laid. These related essentially to legitimate business interests and the employer's good faith:
65. For example, the court may consider the following factors: whether there is a sufficient connection between the act with which the employee is charged and the kind of employment the employee holds; the actual nature of the charges; whether there are reasonable grounds for believing that maintaining the employment relationship, even temporarily, would be prejudicial to the business or to the employer's reputation; and whether there are immediate and significant adverse effects that cannot practically be counteracted by other measures (such as assigning the employee to another position). It might also be determined whether the purpose of the suspension was to protect the image of the service that the employer is responsible for managing, taking the following factors, inter alia, into account: harm to the employer's reputation, the need to protect the public …
297 In so holding, the Court emphasised that:
68. It should be noted that preventative action taken by an employer in good faith to protect its reputation, its customers or the image of the service it manages or the product it sells does not jeopardize the presumption of innocence in favour of an employee against whom criminal charges have been laid. …
298 The Court further held that generally an employer will not be required to make its own enquiries either of the employee or the competent public authorities to ensure that the charges are well-founded (at [68]).
299 I do not regard the lack of a discretion, whether coupled with a right to make submissions or not, in the circumstances of the present case to trespass beyond that which was reasonably necessary. The kinds of factors identified for example in the NBA/NBPA Policy as bearing upon the exercise of discretion are plainly relevant and material considerations. However, these were effectively taken into account at the anterior stage of formulating rule 22A in providing for an automatic stand down only for offences for which a maximum penalty of 11 years or more is prescribed and otherwise adopting a discretionary approach. In any event, by reason of s 4 of the Restraints of Trade Act, ultimately the question is whether the automatic stand down in the circumstances of this case was reasonably necessary in order to protect and repair the reputation of the NRL Competition and the game. In circumstances where that reputation was plainly already damaged and in danger of further significant and immediate financial and other damage if Mr de Belin and others charged with similar offences were to play, taking this strong position and sending a clear message with respect to offences of such a serious, sexual and violent nature against women was, in my view, reasonably necessary.
300 Fourthly, it was not in issue that the new rule was intended to apply to Mr de Belin without affording him any opportunity to be heard. Mr Greenberg knew this when he made the recommendation to the Board on 28 February 2019 (T202.30-47). Mr Greenberg also did not recommend to the Board any alternative form of new rule which would afford Mr de Belin and others in the same position an opportunity to be heard even though, prior to the new rule, players had been afforded an opportunity to be heard before any suspension took effect since 1908 when competitive rugby league commenced in Australia (T203.1-25). In this regard, however, it must be borne in mind that any suspension under the NRL Rules immediately before the new rule required the COO or CEO to make a finding of a breach of the Rules. There was at that time no express mechanism in the Rules for standing down or suspending a player absent any such finding.
301 The applicant submitted that the High Court has held that a person whose contract is being interfered with or whose rights are being affected is entitled to be heard, relying upon the decisions in Jarratt v Commissioner of Police [2005] HCA 50; (2005) 224 CLR 44 and Annetts v McCann (1990) 170 CLR 596 (T484.37-485.8). Specifically, the applicant submitted that while he was still on full pay, "(a) he wasn't allowed to ply his trade, and (b) … he's losing the opportunity to represent his state … [I]n those circumstances, common procedural fairness dictates he has a right to be listened to" (T485.22-27). The applicant also relied upon the decision in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Ainsworth) for the proposition that a person whose reputation is likely to be affected has a right to be heard. However, each of those decisions stand for the proposition that where Parliament confers a power to destroy, defeat or prejudice a person's rights or interests, it is taken to intend that the power be exercised in accordance with the rules of procedural fairness absent words of clear and plain intention. Those decisions have nothing to say about whether a term should be implied into a contract. Furthermore, with respect to the reliance upon Ainsworth, there was no proof of any likely damage to Mr de Belin's reputation by reason of him being stood down automatically under rule 22A. The only damage to his reputation established on the evidence was by reason of the seriousness of the charge against him - a result which is not surprising.
302 In any event, senior counsel for Mr de Belin suggested as an alternative to an automatic stand down that the NRL could have adopted a less draconian rule which permitted a player the opportunity to lead evidence and make submissions about matters other than the alleged conduct the subject of the charge before a decision was made to stand down the player and/or by way of review after standing the player down. That being so, the applicant argued the present rule had not been shown to be reasonably necessary to protect the legitimate interests of the NRL.
303 However, the only examples which the applicant's counsel could point to were the possibility of a player being heard on the financial and emotional impact upon him (T10.45-11.3 and T394.5). These were concerns that were already addressed by the new rule in ensuring that players subject to the no-fault stand down condition continued to be paid their full salary, and were permitted to train with their club and to have access to welfare and education support. No other interest was able to be identified by Mr de Belin which might need to be taken into account, let alone another consideration which would be so compelling as might outweigh the real and substantial danger in permitting a person in Mr de Belin's position to play: see also above at [263].
304 The applicant also relied upon a number of additional aspects in support of his contention that the new rule went beyond what was reasonably necessary which can be shortly dealt with as follows.
(1) The applicant relied upon the lack of any evidence that player behaviour would be curbed by the new rule. Mr Greenberg accepted that there was no evidence that the new rule would curb player behaviour, including at the time that he made his recommendation to the Board (T202.17-25). However, his concern was to curb the effect that poor player behaviour (or alleged player misbehaviour) might be having on the game (T202.15; see also at T203.29-33). While the line of cross-examination pursued at T202.14-25 appeared to assume that the two propositions were inconsistent with each other, they are plainly distinct and separate propositions.
(2) Mr de Belin contends that rule 22A is inconsistent with his Playing Contract. However, for the reasons I have earlier explained, by the Playing Contract Mr de Belin agreed to be bound by the NRL Rules as amended from time to time. He also acknowledged this in his signed Player Registration Application form annexed to his Playing Contract. Rule 2(3) in turn reiterates that all relevant participants in the NRL Competition, including players, are bound by the NRL Rules as amended from time to time irrespective of how substantial the change may be.