1. AUTHORISATION AND APPROVAL
This policy has been endorsed by the Board of the MA and has been incorporated into our regulations in accordance with clause 71 of the MA Constitution. The policy commenced on January 1, 2007 and will operate until replaced. This policy and/or its attachments may be amended from time to time by a resolution of the Board in accordance with the Constitution. Copies of this policy and its attachments can also be obtained from our office, or website at www.ma.org.au.
2. FURTHER INFORMATION
For further information contact Claire Lawrence, Risk and Compliance Manager
3. POLICY REVIEW
This policy will be reviewed annually and revised as needed.
4. REVISION HISTORY
5. PURPOSE OF THIS MEMBER PROTECTION POLICY
This Member Protection Policy aims to ensure the core values, good reputation and positive behaviours and attitudes of MA are maintained. It assists us in ensuring that everyone involved in our sport is treated with respect and dignity, is safe and protected from abuse. This policy also ensures that everyone in our sport is aware of their legal and ethical rights and responsibilities. The policy also reflects our support for the principles and values that are the essence of Australian sport – of fairness, respect, responsibility and safety.
The policy contains the procedures that support our commitment to eliminating discrimination, harassment, child abuse and other forms of inappropriate behaviour from our sport. As part of this commitment, MA will take disciplinary action against any person or organisation bound by this policy if they breach it.
6. WHO THIS MEMBER PROTECTION POLICY APPLIES TO:
This policy applies to the following organisations and individuals:
· Persons appointed or sitting on Boards, Committees and sub-committees of MA and members,
· Employees, officials and volunteers appointed or elected by MA or members,
· Support personnel such as Managers, physiotherapists, psychologists, masseurs, sport trainers),
· Coaches (including assistant coaches) who:
· Are appointed and/or employed by MA or members (whether paid or unpaid), or
· Have an agreement (whether or not in writing) with MA or a member,
· Riders who enter or participate in any activity or event (including camps and training sessions) which are held or sanctioned by MA or a member,
· Any person or organisation, who or which is a member of, or affiliated to, MA, or a member,
· Any other person or organisation who, or which agrees in writing or otherwise to be bound by this policy, and
· Parents, guardians, spectators and sponsors to the extent that is possible.
This policy will continue to apply to a person even after they have stopped their membership, association or employment with MA if disciplinary action relating to an allegation of child abuse against that person has commenced.
7. CODE OF CONDUCT
MA requires every individual and organisation bound by this policy to:
1. Be ethical, fair and honest in all their dealings with other people and MA,
2. Treat all persons with respect and courtesy and have proper regard for their dignity, rights and obligations,
3. Always place the safety and welfare of children above other considerations,
4. Comply with MA’s Constitution, rules and policies including this policy,
5. Operate within the rules and spirit of the sport,
6. Comply with all relevant Australian laws (Federal and State), particularly anti-discrimination and child protection laws,
7. Be responsible & accountable for their conduct, and
8. Abide by the Codes of Behaviour outlined in Attachment A of this policy.
8. ORGANISATIONAL RESPONSIBILITIES
1. Adopt, implement and comply with this policy,
2. Publish, distribute and otherwise promote this policy and the consequences for breaching it,
3. Promote appropriate standards of conduct at all times,
4. Promptly deal with any breaches of, or complaints made under this policy in an impartial, sensitive, fair, timely and confidential manner;
5. Apply this policy consistently without fear or favour,
6. Recognise and enforce any penalty imposed under this policy,
7. Ensure that a copy of this policy is available or accessible to the persons to whom this policy applies,
8. Appoint or have access to appropriately-trained people to receive and handle complaints and allegations and display the names and contact details in a way that is readily accessible, and
9. Monitor and review this policy at least annually.
9. MEMBERS RESPONSIBILITIES
1. Adopt, implement and comply with this policy,
2. Publish, distribute and otherwise promote this policy and the consequences for breaching it,
3. Promote appropriate standards of conduct at all times,
4. Promptly deal with any breaches of or complaints made under this policy in an impartial, sensitive, fair, timely and confidential manner,
5. Apply this policy consistently without fear or favour,
6. Recognise and enforce any penalty imposed under this policy,
7. Comply with their respective State-specific child protection requirements (See Attachment B), and
8. Ensure that a copy of this policy is available or accessible to the persons to whom this policy applies.
10. INDIVIDUAL RESPONSIBILITIES
Individuals bound by this policy are responsible for:
1. Making themselves aware of the policy and complying with the standards of conduct outlined in this policy,
2. Consenting to a National Police check if the individual holds or applies for a role that involves direct and unsupervised contact with people under the age of 18 years,
3. Complying with all other requirements of this policy,
4. Co-operating in providing a discrimination, child abuse and harassment free sporting environment,
5. Being aware of State-specific child protection requirements, and
6. Understanding the possible consequences of breaching this policy.
11. POLICY POSITION STATEMENTS
11.1 Child Protection Policy
Every person and organisation bound by this policy must always place the safety and welfare of children above all other considerations.
MA acknowledges that its staff and volunteers provide a valuable contribution to the positive experiences of its junior participants. MA aims to ensure this continues and to protect the safety and welfare of its junior participants. Several measures will be used to achieve this such as:
1. Prohibiting any form of abuse against children,
2. Providing opportunities for our juniors to contribute to and provide feedback on our program development,
3. Carefully selecting and screening people whose role requires them to have direct and unsupervised contact with children. (See Clause 12),
4. Ensuring our Codes of Conduct, particularly for roles associated with junior sport, are promoted, enforced and reviewed,
5. Providing procedures for raising concerns or complaints (See Clause 15), and
6. Providing education and/or information to those involved in our sport on child abuse and child protection.
MA requires that any child who is abused or anyone who reasonably suspects that a child has been or is being abused by someone within its sport, to report it immediately to the Police or relevant Government agency and the CEO of MA. Descriptions of the sorts of activity which may be abuse are in the definitions at Clause 18.
All allegations of child abuse will be dealt with promptly, seriously, sensitively and confidentially. A person will not be victimised for reporting an allegation of child abuse and the privacy of all persons concerned will be respected. MA’s procedures for handling allegations of child abuse are outlined in Clause 14.1.
If anyone bound by this policy reasonably suspects that a child is being abused by their parent/s, they are advised to contact the relevant Government department for Youth, Family and Community Services in their State or Territory.
Members under the age of 16 must be supervised at all times by a responsible adult. MA will provide a level of supervision and adequate and relative to the member’s age, maturity, capabilities, level of experience, nature of activity and nature of venue. If a member finds a member under the age of 16 is unsupervised, they should assume responsibility for the member’s safety until the parent/guardian or supervisor can be found.
Parents must turn up on time to collect their child for reasons of courtesy and safety. If it appears a member will be left alone at the end of a training session with just one child, they will ask another member to stay until the child is collected.
Parents/guardians are responsible for transporting their children to and from club activities (e.g. practice and events). Where MA makes arrangements for the transportation of children (e.g. for away or overnight trips / training camps), we will, so far as reasonably practicable, ensure vehicles are adequately insured, the driver has a current and appropriate licence for the vehicle being used and appropriate safety measures are available (e.g. fitted working seatbelts).
11.4 Taking Images of Children
Images of children can be used inappropriately or illegally. MA requires that individuals and associations, wherever possible, obtain permission from a child’s parent/guardian before taking an image of a child that is not their own and ensure that the parent knows the way the image will be used. MA will only use appropriate images of a child, relevant to our sport and ensure that the child is suitably clothed in a manner that promotes the sport, displays its successes, etc. MA also requires the privacy of others to be respected and disallows the use of camera phones, videos and cameras inside changing areas, showers and toilets.
If MA uses an image of a child it will not name or identify him/her or use both the first name and surname of the child unless it has first, wherever possible, obtained consent to do so from the parent/guardian. MA will not display personal information such as residential address, email address or telephone numbers without gaining consent from the parent/guardian. MA acknowledges that information about individual’s hobbies, likes/dislikes, school, etc can be used as grooming tools by paedophiles or other persons. As such, MA will take reasonable care when publishing such information in a public forum.
MA requires its members, member associations and clubs to do likewise.
11.5 Anti-harassment, Discrimination and Bullying
MA aims to provide a sport environment where all those involved in its activities are treated with dignity and respect, and without harassment or discrimination.
MA recognises that all those involved in its activities cannot enjoy themselves, perform to their best, or be effective or fully productive if they are being treated unfairly, discriminated against or harassed because of their age, disability , family responsibilities, gender identity, homosexuality or sexual orientation, irrelevant medical or criminal record, marital status, political belief, pregnancy or breastfeeding, race, religion, sex, social origin and/or Trade Union membership/activity.
MA prohibits all forms of harassment and discrimination based on personal characteristics listed in the definitions. Discrimination and harassment are extremely distressing, offensive, humiliating and/ or threatening and create an uncomfortable and unpleasant environment. In most circumstances discrimination and harassment are against the law.
Descriptions of some of the types of behaviour which could be regarded as harassment or discrimination are provided in the Definitions at Clause 18.
If any person feels they are being harassed or discriminated against by another person or organisation bound by this policy, please refer to Clause 16 of the MA constitution.
15.5.1 Inclusive practices:
MA is welcoming and we will seek to include members from all areas of our community.
a) People with a disability Where possible MA will include people with a disability in our sport. We will make reasonable adaptations (eg. modifications to equipment and rules) to enable participation.
b) People from diverse cultures
MA will support and respect people from diverse cultures and religions to participate in motorcycle sport and where possible will accommodate requests for flexibility (eg. modifications to uniforms).
c) Sexual and Gender Identity
All people, regardless of their sexuality, are welcome in our sport. MA strives to provide a safe environment for participation and will take action over any homophobic behaviour.
Pregnant women should be aware that their own health and wellbeing, and that of their unborn children, should be of utmost importance in their decision making about the way they participate in our sport. MA recommends that pregnant women consult with their medical advisers, make themselves aware of the facts about pregnancy in sport, and ensure that they make informed decisions about participation (See Clause 11.7).
11.6 Sexual Relationships Policy
MA takes the position that sexual relationships between coaches and adult participants that they coach should be avoided. MA takes the view that such relationships, while not necessarily constituting unlawful harassment, can have harmful effects on the individual participant involved, on other participants and coaches, and on the sport’s public image.
Such relationships tend to be intentionally or unintentionally exploitative because there is usually a disparity between coaches and participants in terms of authority, power, maturity, status and dependence. MA’s policy position is similar to other organisations who disallow professionals such as teachers, doctors and counsellors to have sexual relationships with their clients or students.
Should a sexual relationship develop between a participant and coach, MA will investigate whether any action against the coach is necessary. Factors that may be relevant to consider are the age and maturity of the participant relative to the coach, the financial or emotional dependence of the participant on the coach, and the likelihood of the relationship having any adverse impact on the participant and/or other participants. If it is determined that the sexual relationship is inappropriate, action may be taken to stop the coaching relationship with the participant. Action may include transfer, a request for resignation or dismissal from coaching duties.
If a participant attempts to initiate an intimate sexual relationship, the coach must take personal responsibility for discouraging such approaches, explaining the ethical basis for such action. The coach may wish to approach MA or a Member Protection Information Officer (“MPIO”) if they feel harassed.
The law is always the minimum standard for behaviour within MA and therefore sex with a child is a criminal offence.
Everyone bound by this policy must treat pregnant women with dignity and respect and any unreasonable barriers to participation by them in our sport should be removed. MA will not tolerate any discrimination or harassment against pregnant women.
Motorcycling is a dangerous sport in which serious physical injury and even death are inherent risks.
Pregnant women should be aware that their own health and wellbeing, and that of their unborn children, should be of utmost importance when making decisions about the way they participate in motorcycle sport.
MA recommends that pregnant women wanting to participate in motorcycle sport consult with medical professionals, make themselves aware of the facts about pregnancy in motorcycle sport, and ensure that they make informed decisions about participation. MA strongly recommends that a pregnant woman consult closely with her doctor should she decide to continue to participate whilst pregnant.
MA will only require pregnant women to sign a disclaimer if we require other participants to sign one in similar circumstances. MA will not require women to undertake a pregnancy test.
If a pregnant woman feels she has been harassed or discriminated against by another person or organisation bound by this Policy, she may make a complaint. (Refer to the attachments in Clause 15 of this policy.)
11.8 Gender Identity Policy
MA is committed to providing an inclusive sporting environment where transgender or transsexual people involved in its activities are able to contribute and participate. MA expects everyone who is bound by this policy to treat people who identify as transgender or transsexual fairly and with dignity and respect. This includes acting with sensitivity and respect where a person is undergoing gender transition. We will not tolerate any unlawful discrimination or harassment against a person who identifies as transgender or transsexual or who is thought to be transgender or transsexual.
Descriptions of some of the types of behaviour which could be regarded as transgender or transsexual discrimination or harassment are provided in the Definitions at Clause 18.
If any person feels they are being harassed or discriminated against by another person or organisation bound by this policy, please refer to our complaints procedure outlined in Clause 15 of this policy. This will explain what to do about the behaviour and how MA will deal with the problem.
MA is aware that the International Olympic Committee (IOC) has established criteria for selection and
participation in the Olympic Games. Where a transgender or transsexual person intends competing at an elite level, we will encourage them to obtain advice about the IOC’s criteria which may differ from the position taken by MA.
MA notes that drug testing procedures and prohibitions also apply to people who identify as transgender or transsexual. A person receiving treatment involving a prohibited substance or method, as described on the WADA prohibited list, should apply for a therapeutic use exemption.
11.9 Alcohol Policy
MA recommends that every person and organisation bound by this policy adhere to strict guidelines regarding the responsible service and consumption of alcohol in accordance with all local, state and territory or federal laws, regulations and codes. Responsible service of alcohol should comply with individual licencing requirements and should protect the safety and wellbeing of all members.
11.10 Smoking Policy
The following policies should be applied to sporting and social events:
· There is to be no smoking in the pit area, grand standards and/or high volume spectator areas
· Buildings shall remain smoke-free zones
· Members and affiliated Clubs should adhere to all applicable smoking laws, regulations and codes in relation to designated outdoor smoking areas to protect the safety and wellbeing of participants.
11.11 Cyber Bullying/Safety
Bullying and harassment in all forms is regarded as unacceptable in motorcycle sport. Given the emergence of new telephone and internet social networks, the opportunity for unwanted and improper comments and statements has dramatically increased. Messages or statements made in these ways using these means of communication are largely instantaneous, and can easily be abused. Others may also manipulate a person by encouraging a statement to be made on twitter or facebook, for example, when the writer may be upset or vulnerable. Bullying has the potential to cause great anxiety and distress to the person who has been the target of any comments or statements. In some cases, bullying is regarded as a criminal offence punishable by imprisonment, amongst other things. Frustration at an official, riders, team member, coach, or sporting body should never be communicated on social network channels, but rather by way of reasoned
and logical verbal and written statements and where appropriate, complaints, to the relevant controlling club, league or peak sporting body.
11.12 Social Networking Websites Policy
MA acknowledges the emergence of new technology and communication mediums (new media), and wishes to enable such new media to be used to benefit the sport and its participants, and to applaud achievements. This can occur due to the immediate nature of communication to a wise audience using channels such as facebook, twitter, and SMS. However, participants need to be very mindful of a few key matters that could lead to inappropriate use of new media, at times unintended, and at other times without a proper understanding that once comments are made or published, they are in public for a long time, and hard to take back (retract).
· Do not include personal information of yourself or others in social media channels;
· Do not use offensive, provocative or hateful language;
· Use your best judgment – do not publish something that makes you the slightest bit uncomfortable, and never write/publish if you are feeling emotional or upset (or are intoxicated);
· Never post a photo of a child or young person without permission from the child’s parent or guardian (see taking images of children policy)
· Always ask for an adults permission before posting their pictures on a social networking forum;
· Never comment on rumours, do not deny or affirm them or speculate about rumours; and
· Always use social network forums to add value and promote the sport in a positive way.
For further information please refer to MA’s Electronic Communications and Social Media Policy.
12. MEMBER PROTECTION POLICY – SCREENING
MA will implement screening procedures for people who currently occupy or who apply for any work (paid or voluntary) that involves direct and unsupervised contact with people under the age of 18 years.
Screening under this policy is not a replacement for any other procedure required by law. The requirements under the law of each State and Territory are set out in Attachment B1 and MA and member organisations must comply with these requirements. If State or Territory legislation sets an equivalent or higher standard of screening, the requirement to screen people need not be followed.
Under this policy MA and Members are required to comply with the screening process as set out by the Working with Children Check (WWCC) laws in the relevant State or Territory as set out in Attachment B.
13. MEMBER PROTECTION INFORMATION OFFICERS (MPIOS)
MA and members shall be responsible for appointing such number of MPIOs as they consider appropriate. It is the role of a MPIO to:
1. Provide a point of contact for persons wishing to make a complaint under this policy,
2. Inform complainants of the options and procedures for resolution of complaints under this policy;
3. Refer complaints or allegations of breaches of this policy to the organisation which appointed him/her; and
4. Carry out the functions assigned to MPIOs throughout this policy.
14. CHILD ABUSE PROCEDURES
An allegation of child abuse is a very serious matter and must be handled with a high degree of sensitivity.
The following is a basic outline of the key processes to follow. More information can be obtained from the relevant State or Territory Government agency.
1. Any complaints, concerns or allegations of child abuse should be made or referred to a MPIO who should obtain and clarify basic details (if possible) but should not elicit detailed information about the abuse. The initial response of the person that receives the complaint from the child (or person on behalf of the child) is crucial to the well-being of the child. It is important for the person receiving the information to:
· Listen to, be supportive and do not dispute what the child says,
· Reassure the child that what has occurred is not the fault of the child,
· Ensure the child is safe,
· Be honest with the child and explain that other people may need to be told in order to stop what is happening, and
· Ensure that what the child says is quite clear but do not elicit detailed information about the abuse. You should avoid suggestive or leading questions.
2. Any individual or organisation to which this policy applies, should immediately report any incident of a serious or a criminal nature to the police and other appropriate authority. If the allegation is of a criminal nature, report the incident immediately to the police. If the allegation involves a child at risk of harm you may need to report to both the police and the relevant government agency.
3. The MPIO should assess the risks and take interim action to ensure the child’s/children’s safety. Some options could include redeployment of the alleged offender to a non-child related position, supervision of the alleged offender or removal/suspension from their duties until the allegations are finally determined. The support needs of the person against whom the complaint is made should also be addressed.
4. Any further investigation by MA into allegations of a more serious or criminal nature should only be carried out upon advice from the Police and relevant Government agency.
5. For allegations of a less serious nature (e.g. verbal abuse) and independent person with appropriate expertise shall be appointed to make contact and meet with each of the people involved to obtain details of the allegation. Strict confidentiality, impartiality, fairness and due process must be maintained at all times.
6. If disciplinary action is to be taken, follow the procedures outlined in Clause 17 of this policy.
15. COMPLAINTS PROCEDURE
MA aims to provide an easy to use, confidential and trustworthy procedure for complaints based on the
principles of natural justice. Any person may report a complaint (complainant) about a person/s or organisation bound by this policy (respondent) if they reasonably believe that a person/s or a sporting organisation has breached this policy.
In the first instance, complaints should be reported to the relevant MPIO.
If a complaint relates to behaviour or an incident that occurred at the:
· State level, or involves people operating at the state level, then the complaint should be reported to and handled by the relevant State Controlling Body in the first instance
· Club level, or involves people operating at the club level, then the complaint should be reported to and handled by the relevant club in the first instance.
Only matters that relate to, or which occurred at, the national level, as well as serious cases referred from the State and Club level, should be dealt with by MA.
A complaint may be handled informally or formally. The complainant will usually indicate his or her preferred option unless the Complaints Manager considers that the complaint falls outside this policy and should be handled another way. For example, the law may require that the complaint/allegation be reported to an appropriate authority.
All complaints will be dealt with promptly, seriously, sensitively and confidentially. Our procedures for handling and resolving complaints are outlined in Attachment C.
Individuals and organisations may also seek to have their complaint handled by an external agency under anti-discrimination, child protection, criminal or other relevant legislation.
15.1 Informal Complaint Resolution Procedure
If a complainant makes an approach to MA, a full member, a club or a person within these organisations, it is desirable that the complainant also seeks the advice of a MPIO who will:
1. Listen to the complainant in an empathetic, supportive manner;
2. Inform the complainant about their possible options;
3. Act as a support person for the complainant, including supporting them through any mediation process if the complainant wishes;
4. Keep the matter confidential;
5. Inform the relevant government authority, if required by law; and
6. Consult by seeking advice from the relevant state or territory authority that administers the relevant law.
A complainant may seek to try and resolve the complaint by mediation in accordance with Clause 15.3.
If, following this complaint procedure, the complaint is not resolved informally, the complainant may make a formal complaint to the CEO of MA. Nothing in this policy prevents the complainant taking action under State or Federal legislation. It is not necessary to provide a written complaint under this clause.
15.2 Improper Complaints & Victimisation
MA aims to ensure our complaints procedure has integrity and is free of unfair repercussions or victimisation against the person making the complaint.
MA will take all necessary steps to make sure that people involved in a complaint are not victimised. Disciplinary measures can be imposed on anyone who harasses or victimises another person for making a complaint or supporting another person’s complaint.
If at any point in the complaint handling process the Complaints Manager considers that a complainant has knowingly made an untrue complaint, or the complaint is malicious or intended to cause distress to the respondent, the matter may be referred to the Board or a judicial committee appointed by the Board for review and appropriate action, including possible disciplinary action against the complainant.
MA aims to resolve complaints quickly and fairly. Complaints may be resolved by agreement between the people involved with no need for disciplinary action.
Mediation is a confidential process that allows those involved in a complaint to discuss the issues or incident in question and come up with mutually agreed solutions. It may occur before or after the investigation of a complaint.
If a complainant wishes to resolve the complaint with the help of a mediator, the MPIO will, in consultation with the complainant, arrange for an independent mediation where possible. Lawyers are not able to negotiate on behalf of the complainant and/or the respondent.
More information on the mediation process is outlined in Attachment C2.
A Tribunal may be convened to hear a formal complaint:
· referred to it by the CEO
· escalated due to the serious nature of the complaint, because it was unable to be resolved at the state level or because the policy of the state association directs it to be
· for an alleged breach of this policy.
MA’s Tribunal procedure is outlined in Attachment C4.
A respondent may only lodge an appeal to the Appeal Tribunal in respect of a Tribunal decision. The decision of the Appeal Tribunal is final and binding on the people involved. MA’s appeals process is outlined in Attachment C4.
Every organisation bound by this policy will recognise and enforce any decision of a Tribunal or Appeal Tribunal under this policy.
16. BREACHES OF THIS MEMBER PROTECTION POLICY
It is a breach of this policy for any person or organisation to which this policy applies, to have been found to have:
1. Done anything contrary to this policy,
2. Breached the code of conduct,
3. Brought MA into disrepute,
4. Failed to follow MA policies and procedures for the protection, safety and welfare of children,
5. Appointed or continued to appoint a person to a role that involves working with children and young people contrary to this policy,
6. Discriminated against or harassed any person,
7. Victimised another person for reporting a complaint,
8. Engaged in a sexually inappropriate relationship with a person that the person supervises, or has influence, authority or power over,
9. Disclosed to any unauthorised person or organisation any MA information that is of a private, confidential or privileged nature,
10. Made a complaint they knew to be untrue, vexatious, malicious or improper,
11. Failed to comply with a penalty imposed after a finding that the individual or organisation has breached this policy, or
12. Failed to comply with a direction given to the individual or organisation during the discipline process.
17. FORMS OF DISCIPLINE
MA may impose disciplinary measures on an individual or organisation for a breach of this policy.
Any disciplinary measure imposed will be:
· fair and reasonable
· applied consistent with any contractual and employment rules and requirements
· be based on the evidence and information presented and the seriousness of the breach
· be determined in accordance with our Constitution, By-laws, this policy and/or the rules of the sport.
If an individual or organisation to which this policy applies breaches this policy, 1 or more forms of discipline may be imposed. These may include making a verbal or written apology, paying a fine, being suspended or de-registered or having a person’s appointment or employment terminated. More information on the range of disciplinary measures and the factors that will be considered before imposing discipline is included in the MA Constitution and the GCRs.
The form of discipline to be imposed on an individual or organisation will depend on factors such as:
· The nature and seriousness of the breach
· If the person knew, or should have known, that the behaviour was a breach of the policy;
· The person’s level of contrition
· The effects of the proposed disciplinary measures on the person, including any person, professional or financial consequences
· If there have been any relevant prior warnings or disciplinary action
· The ability to enforce disciplinary measures if the person is a parent or spectator (even if they are bound by the policy)
· Any other mitigating circumstances
This Clause sets out the meaning of words used in this policy and its attachments without limiting the ordinary and natural meaning of the words. State/Territory specific definitions and more detail on some of the words in this dictionary can be sourced from the relevant State/Territory child protection commissions or Equal Opportunity and Anti-discrimination Commissions.
Abuse is a form of harassment and includes physical abuse, emotional abuse, sexual abuse, neglect, and abuse of power. Examples of abusive behaviour include bullying, humiliation, verbal abuse and insults.
Child means a person who is under the age of 18 years.
Child abuse relates to children at risk of harm (usually by adults, sometimes by other children) and often by those they know and trust. It can take many forms. Children may be harmed by both verbal and physical actions and by people failing to provide them with basic care. Child abuse may include:
· Physical abuse by hurting a child or a child’s development (e.g. hitting, shaking or other physical harm; giving a child alcohol or drugs; giving bad nutritional advice; or training that exceeds the child’s development or maturity).
· Sexual abuse by adults or other children where a child is encouraged or forced to watch or engage in sexual activity or where a child is subject to any other inappropriate conduct of a sexual nature (e.g. sexual intercourse, masturbation, oral sex, pornography including child pornography or inappropriate touching or conversations).
· Emotional abuse by ill-treating a child (e.g. humiliation, taunting, sarcasm, yelling, negative criticism, name calling, ignoring or placing unrealistic expectations on a child).
· Neglect (e.g. failing to give food, water, shelter or clothing or to protect a child from danger or foreseeable risk of harm or injury).
Complaint means a complaint made under Clause 15 of this policy.
Complainant means the person making a complaint.
Complaint handler/manager means the person appointed under this policy to investigate a complaint.
Constitution means the Constitution of MA in force from time to time.
Discrimination means treating or proposing to treat someone less favourably than someone else because of a particular characteristic in the same or similar circumstances in certain areas of public life (this is direct discrimination). The law also covers indirect discrimination. This is imposing or intending to impose an unreasonable requirement, condition or practice that is the same for everyone, but which has an unequal or disproportional effect on individuals or groups with particular characteristics. The characteristics covered by discrimination law across Australia are:
· Family/carer responsibilities,
· Gender identity/transgender status,
· Homosexuality and sexual orientation,
· Irrelevant medical record,
· Irrelevant criminal record,
· Physical features,
· Political belief/activity,
· Pregnancy and breastfeeding,
· Religious belief/activity,
· Sex or gender,
· Social origin,
· Trade Union membership/activity,
Some States & Territories include additional characteristics.
Discrimination is not permitted in the areas of employment (including volunteer and unpaid employment); the provision of goods and services; the selection or otherwise of any person for competition or a team (domestic or international); the entry or otherwise of any rider or other person to any competition; obtaining or retaining membership of an organisation (including the rights and privileges of membership).
Requesting, assisting, instructing, inducing or encouraging another person to engage in discrimination may also be discriminatory conduct.
Harassment is any type of behaviour that the other person does not want and does not return and that is offensive, abusive, belittling, intimidating or threatening – whether this is face-to-face, indirectly or via communication technologies such as mobile phone and computers. The behaviour is unwelcome and of a type that a reasonable person would recognise as being unwelcome and likely to cause the recipient to feel offended, humiliated or intimidated..
Unlawful harassment includes the above but is either sexual or targets a person because of their race, sex, pregnancy, marital status, sexuality or other characteristic (see characteristic list under discrimination).
It does not matter whether the harassment was intended; the focus is on the impact of the behaviour. The basic rule is if someone else finds it harassing then it could be harassment. Harassment may be a single incident or repeated. It may be explicit or implicit, verbal or non-verbal.
Discrimination and harassment are not permitted in the areas of employment (including volunteer and unpaid employment); the provision of goods and services including access to sporting facilities; when providing education and accommodation; the selection or otherwise of any person for competition or a team (domestic or international); the entry or otherwise of any rider or other person to any competition; obtaining or retaining membership of clubs and organisations (including the rights and privileges of membership).
Some exceptions to State and Federal anti-discrimination law apply – examples include:
· Holding a competitive sporting activity for females only who are 12 years of age or over where strength, stamina or physique is relevant; or
· Not selecting a participant if the person’s disability means he or she is not reasonably capable of performing the actions reasonably required for that sporting activity.
Requesting, assisting, instructing, inducing or encouraging another person to engage in discrimination or harassment may also be against the law.
Whether or not the behaviour is harassment is determined from the point of view of the person receiving the harassment. The basic rule is if someone else finds it harassing then it could be harassment. Harassment may be a single incident or repeated. It may be explicit or implicit, verbal or non-verbal.
It is also a breach of discrimination law to victimise a person who is involved in making a complaint of discrimination or harassment. For example, a rider is ostracised by her male coach for complaining about his sexist behaviour to another club official or for supporting another rider who has made such a complaint.
Public acts of racial hatred which are reasonably likely in the circumstances to offend, insult, humiliate or intimidate are also prohibited. This applies to spectators, participants or any other person who engages in such an act in public. Some state and territories also prohibit public acts that vilify on other grounds such as homosexuality, gender identify, hiv/ aids, religion and disability – see vilification.
Junior means a person under the age of eighteen (18) years who is participating in an activity of MA.
Mediator means a person appointed to mediate complaints made under this policy. It is preferable that the mediator has relevant skills, qualifications and/or training in mediation.
Member means any member recognised as such under the MA constitution.
Member protection is a term used by the Australian sport industry to describe the practices and procedures that protect members – both individual members such as riders, coaches and officials, and the member organisations such as clubs, full members, other affiliated associations and the national body. Member protection involves:
· Protecting those that are involved in sport activities from harassment, abuse, discrimination and other forms of inappropriate behaviour
· Adopting appropriate measures to ensure the right people are involved in an organisation, particularly in relation to those involved with juniors, and
· Providing education.
Member Protection Information Officer (MPIO) means a person appointed under Clause 13.1 of this policy trained to be the first point of contact for a person reporting a complaint under, or a breach of, this policy. The MPIO provides confidential information and moral support to the person with the concern or who is alleging harassment or a breach of this policy. They help the complainant deal with any emotions they may have about what has happened and operate as a sounding board as the complainant decides what they want to do. The MPIO may accompany the complainant in anything they decide to do, if it feels appropriate and they are happy to do it.
Natural justice incorporates the following principles:
· A person who is the subject of a complaint must be fully informed of the allegations against them,
· A person who is the subject of a complaint must be given full opportunity to respond to the allegations and raise any matters in their own defence,
· All parties need to be heard and all relevant submissions considered,
· Irrelevant matters should not be taken into account,
· No person may judge their own case,
· The decision maker/s must be unbiased, fair & just,
· The penalties imposed must not outweigh the ‘crime’.
Police check means a national criminal history record check conducted as a prudent pre-employment or pre-engagement background check on a person.
Policy and this policy mean this Member Protection Policy.
Respondent means the person who is being complained about.
Sexual harassment means unwanted, unwelcome or uninvited behaviour of a sexual nature which makes a person feel humiliated, intimidated or offended. Sexual harassment can take many different forms and may include unwanted physical contact, verbal comments, jokes, propositions, display of pornographic or offensive material or other behaviour that creates a sexually hostile environment.
Sexual harassment is not behaviour based on mutual attraction, friendship and respect. If the interaction is between consenting adults, it is not sexual harassment.
Sexual offence means a criminal offence involving sexual activity or acts of indecency including but not limited to (due to differences under State/Territory legislation):
· Indecent assault,
· Sexual assault,
· Assault with intent to have sexual intercourse,
· Sexual penetration of child under the age of 16
· Indecent act with child under the age of 16
· Sexual relationship with child under the age of 16
· Sexual offences against people with impaired mental functioning,
· Abduction and detention,
· Procuring sexual penetration by threats or fraud,
· Procuring sexual penetration of child under the age of 16,
· Soliciting acts of sexual penetration or indecent acts,
· Promoting or engaging in acts of child prostitution,
· Obtaining benefits from child prostitution,
· Possession of child pornography,
· Publishing child pornography & indecent articles.
Transgender is a general term applied to individuals and behaviours that differ from the gender role commonly, but not always, assigned at birth. It does not imply any specific form of sexual orientation.
Victimisation means subjecting a person or threatening to subject a person to any detriment or unfair treatment because that person has or intends to pursue their rights to make a complaint under government legislation (e.g. Anti-discrimination) or under this policy, or for supporting another person to make a complaint.
Vilification involves a person or organisation doing public acts to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons having any of the attributes or characteristics within the meaning of discrimination. Public acts that may amount to vilification include any form of communication to the public and any conduct observable by the public.
Young people/person means people in the 13 – 18 year age group.
CODES OF BEHAVIOUR
MOTORCYCLING AUSTRALIA VALUES
We seek to provide a safe, fair and inclusive environment for everyone involved in our organisation and in our sport.
To achieve this, we require certain standards of behavior of participants, coaches, officials, administrators, parents/guardians (of child participants) and spectators.
Our codes of behaviour are underpinned by the following core values.
· To act within the rules and spirit of our sport.
· To display respect and courtesy towards everyone involved in our sport and prevent discrimination and harassment.
· To prioritise the safety and well-being of children and young people involved in our sport.
· To encourage and support opportunities for participation in all aspects of our sport.
CODES OF BEHAVIOUR
As a member of MA, or a person required to comply with MA’s member protection policy, you must meet the following standards in regard to your conduct. These codes of behaviour apply to any activity held or sanctioned by MA and in any role you hold within MA affiliated organisations.
· Be aware of and act within the rules and spirit of motorcycle sport.
· Promote fair play over winning at any cost.
· Encourage and support opportunities for people to learn appropriate behaviours and skills.
· Support opportunities for participation in all aspects of the sport.
· Treat each person as an individual.
· Show respect and courtesy to all involved with the sport.
· Respect the rights and worth of every person, regardless of their age, race, gender, ability, cultural background, sexuality or religion.
· Respect the decisions of officials, coaches and administrators.
· Wherever practical, avoid unaccompanied and unobserved one-on-one activity (when in a supervisory capacity or where a power imbalance exists) with people under the age of 18.
· Display appropriate and responsible behaviour in all interactions.
· Display responsible behaviour in relation to alcohol and other drugs.
· Act with integrity and objectivity, and accept responsibility for your decisions and actions.
· Ensure your decisions and actions contribute to a safe environment.
· Ensure your decisions and actions contribute to a harassment-free environment.
· Do not tolerate abusive, bullying or threatening behaviour.
· Give your best at all times.
· Participate for your own enjoyment and benefit.
· Abide by the rules and show respect for other participants, coaches and officials.
· Place the safety and welfare of the participants above all else.
· Help each person (participant, official, etc.) to reach their potential. Respect the talent, developmental stage and goals of each person and encourage them with positive and constructive feedback.
· Obtain appropriate qualifications and keep up-to-date with the latest coaching practices and the principles of growth and development of young competitors.
· Place the safety and welfare of the participants above all else.
· Ensure all participants are included and can participate, regardless of their race, gender, ability, cultural background, sexuality or religion.
· Be consistent, impartial and objective when making decisions.
· Address unsporting behaviour and promote respect for other participants and officials.
· Ensure quality supervision and instruction for competitors.
· Support coaches and officials to improve their skills and competencies.
· Act honestly, in good faith and in the best interests of the sport as a whole.
· Ensure that any information acquired or advantage gained from the position is not used improperly.
· Conduct club responsibilities with due care, competence and diligence.
· Encourage your child to participate, do their best and have fun.
· Focus on your child’s effort and performance, rather than winning or losing.
· Never ridicule or yell at a child for making a mistake or losing a competition.
· Model appropriate behaviour, including respect for other participants and officials.
· Respect the effort and performances of participants and officials.
· Reject the use of harassment, bullying or violence in any form, whether by other spectators, coaches, officials or participants.
ATTACHMENT B1 – CHILD PROTECTION REQUIREMENTS
EMPLOYMENT SCREENING / WORKING WITH CHILDREN CHECK REQUIREMENTS
We are committed to providing a child-safe environment. As part of this, we will recruit staff and volunteers who do not pose a risk to children.
Employment screening and Working with Children Checks can involve criminal history checks, signed declarations, referee checks and other appropriate checks that assess a person’s suitability to work with children and young people.
Working with Children Check laws are currently in place in New South Wales, Queensland, Western Australia, Victoria, the Northern Territory and South Australia.
MA, including our state associations and clubs, will meet the requirements of the relevant state or territory Working with Children Check laws.
Employment screening requirements will also be followed in the Australian Capital Territory and Tasmania.
Individuals travelling with children and young people to another state or territory in a work-related capacity must comply with the screening requirements of that particular state or territory.
WORKING WITH CHILDREN CHECK REQUIREMENTS
Working with Children Checks aim to create a child-safe environment and to protect children and young people involved in motorcycle sport from physical and sexual harm.
They assess the suitability of people to work with children and young people and can involve:
· criminal history checks
· signed declarations
· referee checks, and
· other relevant background checks to assess a person’s suitability to work with children and young people.
Working with Children Check requirements vary across Australia. Fact Sheets for each state and territory are available on the Play by the Rules website: www. playbytherules.net.
Detailed information, including the forms required to complete a Working with Children Check, are available from the relevant agencies in each state and territory. New South Wales
Contact the Commission for Children and Young People
Phone: 02 9286 7276 Northern Territory
Contact the Northern Territory Screening Authority
Phone: 1800 SAFE NT (1800 723 368) Queensland
Contact the Commission for Children and Young People and Child Guardian about the “Blue Card” system.
Phone: 1800 113 611
Contact the Department for Education and Child Development
Website: www.dcsi.sa.gov.au/pub/Default. aspx?tabid=281
Phone: 1800 003 305
Note: In South Australia, the requirement to conduct criminal history assessments for people working with children is being phased-in over three years.For recreation and sporting organisations, this requirement commenced on 1 January 2012 and will be completed by 31 December 2013.
Contact the Department of Justice
Phone: 1300 652 879
25 MEMBER PROTECTION POLICY370
2015 MANUAL OF MOTORCYCLE SPORT
Contact the Department for Child Protection
Phone: 1800 883 979
Travelling to other states or territories
It is important to remember that when travelling to other states or territories, representatives of MA must comply with the legislative requirements of that particular state or territory.
In October 2011 at the Standing Council on Community, Housing and Disability Services, Commonwealth, state and territory ministers agreed to introduce, by late 2012, national exemptions to Working with Children Checks for paid employees and volunteers who are required to cross state or territory borders for work related purposes.
These exemptions will be for up to 30 days in any 12 month period and will enable workers to participate in national and inter-jurisdictional activities on a short-term basis. This means that volunteers and workers with a valid check in their home state or territory will be able to participate in short-term activities across state and territory borders without the need for additional checks.
The Australian Sports Commission will provide more information as soon as it becomes available.
ATTACHMENT: B2 EMPLOYMENT SCREENING REQUIREMENTS
FOR STATES AND TERRITORIES WITHOUT WORKING WITH CHILDREN CHECKS: ACT & TAS
This attachment explains the process we will use to screen the people associated with our organisation who work, coach or have regular unsupervised contact with children and young people under the age of 18. We require our state associations and clubs to do the same.
1. We will identify all positions where people work, coach or have regular unsupervised contact with children and young people under the age of 18.
2. Before a person is offered such a position, we will ask him or her to complete a Member Protection Declaration (“MPD”) (see Attachment B3).
3. If a person is unable to provide a MPD, or if he or she cannot satisfactorily answer the questions in the MPD, we will ask for an explanation. We will then make an assessment about the person’s suitability to work with children and young people. If we are not fully satisfied, we will not appoint him or her to the position.
4. Where possible, we will check a person’s referees (verbal or written) about his or her suitability for the position.
5. We will ask each person to sign a consent form for a national police check and explain why our policy requires a check to be undertaken.
6. If a person does not agree to a national police check, we will make an assessment about his or her suitability to work with children and young people.
7. If the national police check indicates that a “relevant offence” has been recorded, we will ask the person to provide an explanation. We will then make an assessment about the person’s suitability to work with children and young people. If we are not fully satisfied, we will not appoint him or her to the position.
8. If it is not practical to complete the national police check prior to the person starting in the position, we will complete the check as soon as possible. We will act immediately if the results of the check highlight any issues of concern.
9. We will protect the privacy of each person who undertakes the screening process and keep all information we obtain strictly confidential.
10. We will return all the information collected as part of the screening process (e.g. completed MPD forms, national police checks and referee reports) to the relevant person if he or she is not appointed to the position. Alternatively, all records will be destroyed within 28 days of the date of the decision or the expiry of any appeal period unless, within that time, the person requests the documents to be returned to him or her. The records of all people appointed to our organisation will be kept on file in a secure location.
ATTACHMENT B4 – PROCEDURE FOR HANDLING ALLEGATIONS OF CHILD ABUSE
If you believe a child is in immediate danger or a life-threatening situation, contact the Police immediately on 000.
Fact sheets on reporting allegations of child abuse in different states and territories are available at www.playbytherules.net.au.
We will treat any allegation of child abuse or neglect promptly, seriously and with a high degree of sensitivity.
All people working with MA in a paid or unpaid capacity have a duty to report any concerns to the appropriate authorities, following the steps outlined below.
STEP 1: RECEIVE THE ALLEGATION
If a child or young person raises with you an allegation of child abuse or neglect that relates to them or to another child, it is important that you listen, stay calm and be supportive.
STEP 2: REPORT THE ALLEGATION
· Immediately report any allegation of child abuse or neglect, or any situation involving a child at risk of harm, to the police and/or the relevant child protection agency. You may need to make a report to both.
· Contact the relevant child protection agency or police for advice if there is any doubt about whether the allegation should be reported.
· If the allegation involves a person to whom this policy applies, then also report the allegation to the CEO of MA so that he or she can manage the situation.
STEP 3: PROTECT THE CHILD AND MANAGE THE SITUATION
· The CEO will assess the immediate risks to the child and take interim steps to ensure the child’s safety and the safety of any other children. This may include redeploying the alleged offender to a position where there is no unsupervised contact with children, supervising the alleged offender or removing/suspending him or her until any investigations have been concluded. Legal advice should be sought before any interim steps are made i f the person is in paid employment with MA.
· The CEO will consider what services may be most appropriate to support the child and his or her parent/s.
· The CEO will consider what support services may be appropriate for the alleged offender.
· The CEO will put in place measures to protect the child and the alleged offender from possible victimisation and gossip.
STEP 4: TAKE INTERNAL ACTION
· Up to three different investigations could be undertaken to examine allegations that are made against a person to whom this policy applies, including:
· a criminal investigation (conducted by the police)
· a child protection investigation (conducted by the relevant child protection agency)
· a disciplinary or misconduct inquiry/ investigation (conducted by MA).
· Regardless of the findings of the police and/or child protection agency investigations, MA will assess the allegations to decide whether the alleged offender should return to his or her position, be dismissed, be banned or face any other disciplinary action.
· The CEO of MA will consider all information relevant to the matter – including any findings made by the police, the child protection authority and/or court – and then set out a finding, recommend actions and the rationale for those actions.
· If disciplinary action is recommended, we will follow the procedures set out in Clause 17 of our Member Protection Policy.
· We will provide the relevant government agency with a report of any disciplinary action we take, where this is required.
ATTACHMENT C1: COMPLAINTS PROCEDURE
MA aims to support people associated with our sport to make and resolve any complaints they may have in a fair, timely and effective way.
We will keep all complaints confidential. We will not provide information about the complaint to another person without the complainant’s consent, except if the law requires us disclose this information or if it is necessary to properly resolve the complaint.
To ensure fairness for everyone involved, we will provide the full details of the complaint to the person or people against whom the complaint has been made and ask for their response. As a result, it may be difficult for us to resolve complaints made anonymously.
We will provide informal and formal procedures to resolve complaints. Individuals and organisations can also complain to external organisations under anti-discrimination, child protection and other relevant laws.
Step 1: Talk with the other person
(if safe, reasonable and appropriate)
If you feel confident to do so, you can approach the other person to discuss the issues and try and resolve the problem directly.
Step 2: Contact a Member Protection Information Officer
We encourage you to talk with one of our Member Protection Information Officers (MPIOs) if:
· the first step is not possible or reasonable
· you are not sure how to handle the problem by yourself
· you want to talk confidentially with someone and find out what options are available to resolve the problem, or
· the problem continues after you approached the other person.
The names and contact details for our MPIOs are available at www.ma.org.au
The MPIO will:
· take confidential notes about your complaint
· try to find out the facts of your complaint
· ask how you would like the problem to be resolved and if you need support
· provide different options for you to resolve the problem
· act as a support person, if you wish
· refer you to an appropriate person (e.g. a mediator) to help you resolve the problem, if necessary
· inform the relevant government authorities and/or police, if required by law to do so
· maintain confidentiality.
Step 3: Decide how to resolve the problem
After talking with the MPIO, you may decide:
· there is no problem
· the problem is minor and you do not wish to take the matter forward
· to try and resolve the problem yourself, with or without a support person
· to resolve the problem with the help of someone impartial, such as a mediator
· to resolve the matter through a formal process.
Step 4: Making a formal complaint
If it is not possible or appropriate to resolve your complaint through an informal process, you may:
· make a formal complaint in writing to the Complaints Manager; or
· approach a relevant external agency, such as an anti-discrimination or equal opportunity commission, for advice.
After receiving a formal complaint, and based on the material you provide, the Complaints Manager will decide whether:
· he or she is the most appropriate person to receive and handle the complaint
· the nature and seriousness of the complaint requires a formal resolution procedure
· to refer the complaint to mediation
· to appoint a person to investigate the complaint
· to refer the complaint to a tribunal hearing
· to refer the matter to the police or other appropriate authority, and/or
· to implement any interim arrangements that will apply until the complaint process is completed
In making this decision, the Complaint Manager will take into account:
· whether he or she has had any personal involvement in the circumstances and if someone else should handle the complaint
· your wishes, and the wishes of the respondent, regarding how the complaint should be handled
· the relationship between you and the respondent (e.g. an actual or perceived power imbalance between you and the respondent)
· whether the facts of the complaint are in dispute
· the urgency of the complaint, including the possibility that you might face further unacceptable behaviour while the complaint process is underway.
If the Complaint Manager is the appropriate person to handle the complaint, he or she will, if these steps are necessary:
· provide the information received from you to the other person(s) involved and ask for their side of the story
· decide if there is enough information to determine whether the matter alleged in your complaint did or didn’t happen, and/or
· determine what, if any, further action to take, including disciplinary action in accordance with this policy.
Step 5: Investigating the complaint
In some cases, an investigation may be required to determine the facts surrounding the complaint. Our investigations procedure is outlined in Attachment C3.
Following the investigation, a written report will be provided to the Board or a judicial committee appointed by the Board who will determine what further action to take.
· If the complaint is referred to mediation, we will follow the steps outlined in Attachment C2 or as agreed by you, the respondent and the mediator.
· If the complaint is referred to a tribunal hearing, the hearing will be conducted according to the steps outlined in Attachment C4.
· If the complaint is referred to the police or another external agency, we will endeavour to provide all reasonable assistance required by the police or the agency.
Any costs relating to the complaints process set out in this investigation (eg. investigation, mediation and/or a tribunal hearing, will be met by MA, unless otherwise stated.
Step 6: Reconsidering a complaint or appealing a decision
If mediation is unable to resolve the matter, you may request that the Complaints Manager reconsider the complaint in accordance with Step 3.
You or the respondent(s) may also appeal a decision made by at a tribunal hearing. The grounds and process for appeals are set out in Attachment C4.
Step 7: Documenting the resolution
The Complaints Manager will record the complaint, the steps taken to resolve it and the final outcome. This information will be stored in a confidential and secure place. If the complaint was dealt with at the state/district level, the information will be stored by the state association. If the matter is of a serious nature, or if it was dealt with at the national level, the original document will be stored by MA and a copy stored by the state association.
APPROACHING EXTERNAL ORGANISATIONS
If you feel that you have been harassed or discriminated against, you can seek advice from your state or territory anti-discrimination or equal opportunity commission. There is no obligation to make a formal complaint. However, if the commission advises you that the issues appear to be within its jurisdiction, you may choose to lodge a formal complaint with the commission.
Once a complaint is received by the commission, it will investigate the matter. If it appears that unlawful harassment or discrimination has occurred, the commission will attempt to conciliate the complaint on a confidential basis. If this fails, or if it is not appropriate, the complaint may go to a formal hearing. The tribunal will make a finding and decide what action, if any, will be taken. This could include an apology or financial compensation for distress, lost earnings or medical and counselling expenses incurred.
If you do lodge a complaint with the commission, an appropriate person from our organisation (e.g. an MPIO) will be available to support you during the process. It is also common to have a legal representation, particularly if the complaint goes to a formal hearing.
CONTACT DETAILS FOR THE STATE AND TERRITORY ANTI-DISCRIMINATION AND EQUAL OPPORTUNITY COMMISSIONS ARE AVAILABLE ON THE PLAY BY THE RULES WEBSITE:
Serious incidents, such as assault or sexual assault, should be reported to the police.
ATTACHMENT C2: MEDIATION
Mediation is a process that allows the people involved in a complaint to talk through the issues with an impartial person – the mediator – and work out a mutually agreeable solution.
The mediator does not decide who is right or wrong and does not tell either side what they must do. Instead, he or she helps those involved to talk through the issues and makes sure that the process is as fair as possible for all concerned.
Our approach to mediation follows the steps set out below.
1. The Complaints Manager will appoint a mediator to help resolve the complaint. This will be done under the direction of MA and in consultation with the complainant and the respondent(s).
2. The mediator will talk with the complainant and respondent(s) about how the mediation will take place and who will participate. At a minimum, the mediator will prepare an agenda of issues to be discussed.
3. All issues raised during mediation will be treated confidentially. We also respect the rights of the complainant and the respondent(s) to pursue an alternative process if the complaint is not resolved.
4. If the complaint is resolved by mediation, the mediator will prepare a document that sets out the agreement that has been reached. This agreement will be signed by the complainant and the respondent(s). We expect the parties involved to respect the terms of the agreement.
5. If the complaint is not resolved by mediation, the complainant may:
· write to the Complaints Manager to request that the Complaints Manager reconsider the complaint in accordance with Step 3
· approach an external agency, such as an anti-discrimination or equal opportunity commission, to resolve the matter.
We recognise that there are some situations where mediation will not be appropriate, including:
· when the people involved have completely different versions of the incident
· when one or both parties are unwilling to attempt mediation
· when the issues raised are sensitive in nature
· when there is a real or perceived power imbalance between the people involved
· matters that involve serious, proven allegations.
ATTACHMENT C3: INVESTIGATION PROCESS
ATTACHMENT C4: TRIBUNAL PROCEDURES
We will follow the steps set out below to hear formal complaints made under our Member Protection Policy.
PREPARING FOR A TRIBUNAL HEARING
1. A Tribunal panel will be established, according to the rules set out in MA’s Constitution, to hear a complaint that has been referred to it by the Complaints Manager. The number of Tribunal panel members required to be present throughout the hearing will be three (3).
2. The Tribunal panel members will be provided with a copy of all the relevant correspondence, reports or information received and sent by the Complaints Manager relating to the complaint/allegations.
3. The Tribunal hearing will be held as soon as practicable. However, adequate time must be provided for the respondent(s) to prepare for the hearing.
4. The Tribunal panel will not include any person who has any actual or perceived conflict of interest or bias regarding the complaint/allegations.
5. The Complaints Manager will inform the respondent(s) in writing that a Tribunal hearing will take place. The notice will outline:
· that the person has a right to appear at the Tribunal hearing to defend the complaint/allegations
· the details of the complaint and of all allegations, as well as the clause of any policy or rule that has allegedly been breached
· the date, time and venue of the Tribunal hearing
· that either verbal or written submissions can be presented at the Tribunal hearing
· that witnesses may attend the Tribunal hearing to support the position of the respondent/s (statutory declarations of witnesses not available to attend and from character witnesses may also be provided to the Tribunal hearing)
· an outline of any possible penalties that may be imposed if the complaint is found to be true
· that legal representation will not be allowed (note, if the respondent is a minor, he or she should have a parent or guardian present).
A copy of any information/documents that have been given to the Tribunal panel (e.g. investigation report findings) will be provided to the respondent(s).
The respondent(s) will be allowed to participate in all MA activities and events, pending the decision of the Tribunal, including any available appeal process, unless the Complaints Manager believes it is necessary to exclude the respondent/s from all or some activities and events because of the nature of the complaint.
6. The Complaints Manager will notify the complainant in writing that a Tribunal hearing will take place. The notice will outline:
· that the person has a right to appear at the Tribunal hearing to support their complaint
· the details of the complaint, including any relevant rules or regulations the respondent is accused of breaching
· the date, time and venue of the Tribunal hearing
· that either verbal or written submissions can be presented at the Tribunal hearing
· that witnesses may attend the Tribunal hearing to support the complainant’s position (statutory declarations of witnesses not available to attend may also be provided to the Tribunal Hearing)
· that legal representation will not be allowed (note, if the complainant is a minor, he or she should have a parent or guardian present).
A copy of any information / documents given to the Tribunal (e.g. investigation report findings) will be provided to the complainant.
7. If the complainant believes the details of the complaint are incorrect or insufficient, he or she should inform the Complaints Manager as soon as possible so that the respondent(s) and members of the Tribunal panel can be properly informed of the complaint.
8. If possible, the Tribunal panel should include at least one person with knowledge or experience of the relevant laws/rules (e.g. anti-discrimination).
TRIBUNAL HEARING PROCEDURE
9. The following people will be allowed to attend the Tribunal hearing:
· Tribunal panel members
· the respondent(s)
· the complainant
· any witnesses called by the respondent(s)
· any witnesses called by the complainant
· any parent/guardian or support person required to support the respondent or the complainant.
10. If the respondent(s) is not present at the set hearing time and the Tribunal chairperson considers that no valid reason has been presented for this absence, the Tribunal hearing will continue subject to the chairperson being satisfied that all Tribunal notification requirements have been met.
11. If the Tribunal chairperson considers that there is a valid reason for the non-attendance of the respondent(s), or the chairperson does not believe the Tribunal notification requirements have been met, then the Tribunal hearing will be rescheduled to a later date.
12. The Tribunal chairperson will inform the Complaints Manager of the need to reschedule the hearing and the Complaints Manager will arrange for the Tribunal to be reconvened.
13. The Tribunal chairperson will read out the complaint, ask each respondent if he or she understands the complaint and if he or she agrees or disagrees with the complaint.
14. If the respondent agrees with the complaint, he or she will be asked to provide any evidence or witnesses that should be considered by the Tribunal when determining any disciplinary measures or penalties.
15. If the respondent disagrees with the complaint, the complainant will be asked to describe the circumstances that lead to the complaint being made.
· Reference may be made to brief notes.
· The complainant may call witnesses.
· The respondent may question the complainant and any witnesses.
16. The respondent will then be asked to respond to the complaint.
· Reference may be made to brief notes.
· The respondent may call witnesses.
· The complainant may ask questions of the respondent and any witnesses.
17. The complainant and respondent(s) may be present when evidence is presented to the Tribunal hearing. Witnesses may be asked to wait outside the hearing until they are required.
18. The Tribunal may:
· consider any evidence, and in any form, that it deems relevant
· question any person giving evidence
· limit the number of witnesses presented to those who provide new evidence
· require (to the extent it has power to do so) the attendance of any witness it deems relevant
· act in an inquisitorial manner in order to establish the truth of the issue/ complaint before it.
19. Video evidence, if available, may be presented. Arrangements must be made entirely by the person(s) wishing to offer this type of evidence.
20. If the Tribunal panel considers that at any time during the hearing there is any unreasonable or intimidatory behaviour from anyone, the Tribunal chairperson may deny further involvement of that person in the hearing.
21. After all the evidence has been presented, the Tribunal will make its decision in private. It must decide whether the complaint has, on the balance of probabilities, been substantiated. As the seriousness of the allegation increases, so too must the level of satisfaction of the Tribunal that the complaint has been substantiated. The respondent(s) have the opportunity to address the Tribunal on disciplinary measures which may be imposed. Any disciplinary measures imposed must be reasonable in the circumstances.
22. All Tribunal decisions will be by majority vote.
23. The Tribunal chairperson will announce the decision in the presence of all those involved in the hearing and will declare the hearing closed. Alternatively, he or she may advise those present that the decision is reserved and will be handed down in written form at a later time.
24. Within 48 hours, the Tribunal chairperson will:
· forward a notice of the Tribunal’s decision to the Complaints Manager, including any disciplinary measures imposed.
· forward a letter reconfirming the Tribunal’s decision to the respondent(s), including any disciplinary measures imposed. The letter should also outline the process and grounds for an appeal, if allowed. If matter is especially complex or important, the Tribunal chairperson may inform the parties in writing within 48 hours that the decision will be delayed for a further 48 hours.
25. The Tribunal does not need to provide written reasons for its decision.
26. If a complainant or a respondent(s) is not satisfied with the outcome of a mediation process or a Tribunal decision, he or she can lodge an appeal to MA on one or more of the following grounds:
26.1 that a denial of natural justice has occurred
26.2 that the disciplinary measure/s imposed is unjust and/or unreasonable
26.3 that the decision was not supported by the information/evidence provided at the mediation or to the Tribunal Hearing
27. A person wanting to appeal must lodge a letter setting out the basis for their appeal with the CEO within 21 days of the decision being made. An appeal fee of $1,000 shall be included with the letter of intention to appeal.
28. If the letter of appeal is not received by the CEO within this time, the right of appeal will lapse. If the letter of appeal is received but the appeal fee is not received within this time, the appeal will also lapse.
29. The letter of appeal and the notice of the Tribunal’s decision (clause 24) will be forwarded to the Complaints Manager to review and to decide whether there are sufficient grounds for the appeal to proceed. The Complaints Manager may invite any witnesses to the meeting that he or she believes are required to make an informed decision.
30. If the appellant has not shown sufficient grounds for an appeal in accordance with clause 26, then the appeal will be rejected. The appellant will be notified in writing, including the reasons for the decision. The appeal fee will be forfeited.
31. If the appeal is accepted, an Appeal Tribunal with new panel members will be convened to rehear the complaint. In some instances, the fee may be refunded in part or whole if the appeal is upheld.
32. The Tribunal hearing procedure shall be followed for the Appeal Tribunal.