Commissioner of Police v Davis - [2023] NTSC 33

CITATION:Commissioner of Police v Davis & Anor [2023] NTSC 33
PARTIES:COMMISSIONER OF POLICE

v
DAVIS, Andrea
and
INABILITY APPEAL BOARD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-03231-SC
DELIVERED:  19 April 2023
HEARING DATE:  20 March 2023
JUDGMENT OF:  Brownhill J

CATCHWORDS:
ADMINISTRATIVE LAW – Whether reviewable error of law – Jurisdictional error – Procedural fairness – Receipt of additional material postdating notice appealed from – Interests of justice and competing interests of the parties – Finding of no prejudice – Whether evidence of absence of prejudice – Whether informed of or should have known of possibility of finding – Whether reasons unreasonable, illogical or irrational – Ground of review not made out.
ADMINISTRATIVE LAW – Whether reviewable error of law – Jurisdictional error – Procedural fairness – Decision to conduct appeal as appeal de novo – Interests of justice and competing interests of the parties – Ground of review not made out.
ADMINISTRATIVE LAW – Whether reviewable error of law – Jurisdictional error – Procedural fairness – Adequacy of reasons – Ground of review not made out.
McLaren v Legal Practitioners Disciplinary Tribunal (2010) 26 NTLR 45; Turner v Northern Territory of Australia [2021] NTSC 55, applied.

Minister for Home Affairs v DUA16 (2020) 271 CLR 550; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; Murray v Figge (1974) 4 ALR 612; Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28; Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491; Smith v New South Wales Bar Association (1992) 176 CLR 256; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, referred to.

Police Administration Act 1978 (NT) ss 5, 14, 14A, 87, 88, 89, 94, 95
Police Administration Regulations 1994 (NT)
Public and Environmental Health Act 2011 (NT) s 52
COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace

REPRESENTATION:
Counsel:
Plaintiff:DF O’Leary SC with MA Roberts
First Defendant:  T Silvester
Second Defendant:  No appearance
Solicitors:
Plaintiff:Finlaysons
First Defendant:  NT Police Association
Second Defendant:  Solicitor for the Northern Territory
Judgment category classification:    B
Judgment ID Number:  Bro2306
Number of pages:  29

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Commissioner of Police v Davis & Anor [2023] NTSC 33

No. 2022-03231-SC

BETWEEN:

COMMISSIONER OF POLICE
Plaintiff

AND:

ANDREA DAVIS
First Defendant

AND:

INABILITY APPEAL BOARD
Second Defendant

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 19 April 2023)

This is an application for judicial review of a decision of an Inability Appeal Board (‘Board’) established under the Police Administration Act 1978 (NT) (‘the Act’). There are three broad issues raised in this matter. The first broad issue is whether the decision of the Board to receive, under s 95(3) of the Act, additional material from the first defendant (‘Davis’) which recorded a fact occurring after, but directly responsive to, the opinion that she was unfit for duties, was infected by jurisdictional error. The second broad issue is whether the Board’s decision to conduct the appeal as an appeal de novo was infected by jurisdictional error. The third broad issue is whether the Board’s reasons for the exercise of both discretions were inadequate.
Background
The factual and procedural background is not in dispute.
Pursuant to s 14 of the Act, the plaintiff (‘Commissioner’) is charged and invested with the general control and management of the Northern Territory Police Force. Pursuant to s 14A of the Act, the Commissioner may issue such general orders and instructions as are necessary to secure the good management and efficient working of the Police Force. The core functions of the Police Force are (relevantly) to uphold the law and maintain social order, and to protect life and property (s 5(2)).
Davis is a Detective Senior Constable of the Northern Territory Police Force. She has been a member for over 15 years.
On 13 October 2021, the Chief Health Officer of the Northern Territory issued a direction pursuant to s 52 of the Public and Environmental Health Act 2011 (NT). The ‘COVID-19 Directions (No. 55) 2021: Directions for mandatory vaccination of workers to attend the workplace’ (‘Directions’) provided that certain workers who had not received the first dose of an approved vaccine by 13 November 2021 were not permitted to attend their workplace on and from that date. On 10 November 2021, the Directions were amended to make similar provision in relation to certain workers who had not received the second dose of an approved vaccine by 25 December 2021. There was an exception for workers who had a medical certificate certifying a contraindication to all approved COVID-19 vaccines.
On 13 and 22 October 2021, the Directions were circulated to all members of the NT Police Force by email.
On 25 October 2021, the Commissioner issued a direction under s 14A of the Act to all members of the NT Police Force requiring them to produce evidence of their vaccination within seven days, and to not attend their workplace from 13 November 2021 unless they had received the first dose of an approved vaccine, and from 25 December 2021 unless they had received the second dose of an approved vaccine, or provided a medical certificate certifying contraindication. The Commissioner’s direction stated that a failure to comply would result in disciplinary action.
On 3 November 2021, Davis sent a memorandum to the Commissioner in which she explained her decision not to be vaccinated at that time, stated that she did not fall within the class of workers to whom the Directions operated, and sought to: (a) continue to perform her work in her workplace; (b) work from home; or (c) take accrued leave. She stated that she was unable to give informed consent to be vaccinated because the short term risks to safety and the vaccines’ adverse effects were known and the medium and long-term outcomes regarding safety were unknown.
On 12 November 2021, Davis was issued with a Notice of Inability to Discharge Duties pursuant to s 87 of the Act (‘s 87 notice’). She was invited to respond to the opinion that she was not fit to discharge, suited to perform or capable of efficiently performing the duties that she was employed to perform.[1] The grounds for forming that opinion were that Davis had not received a first dose of an approved vaccination by 13 November 2021, had not provided a medical certificate about contraindication and all members of the Police Force must be vaccinated to be considered fit to perform their duties. She was given 14 days to indicate in writing whether she agreed with the opinion and to explain any matter referred to in the s 87 notice.
On 26 November 2021, Davis responded to the s 87 notice stating why she disagreed with the opinion in the s 87 notice. Essentially, her response was the same as what she had said in her memorandum to the Commissioner.
On 30 November 2021, Davis was advised that the Commissioner’s delegate was not satisfied with her response and that the matter would be referred for a review pursuant to s 88(1) of the Act to determine whether the opinion in the s 87 notice was well founded.
On 8 December 2021, the reviewing member advised Davis that, pursuant to s 88(5) of the Act, he was satisfied that the opinion in the s 87 notice was well founded.
On 10 December 2021, Davis was served with a Notice of Intention to Retire pursuant to s 89(d) of the Act (‘s 89 notice’). The s 89 notice stated that the Commissioner’s delegate intended to retire her from the Police Force with effect from 17 December 2021 because he was of the opinion that she was unfit for duties. The s 89 notice informed Davis of her right to appeal under s 94(1)(g) of the Act within 14 days of receiving the s 89 notice.
On 24 December 2021, Davis was served with a Notice of Retirement, in which she was advised that she had been retired from the Police Force with effect from 17 December 2021 on grounds of inability in accordance with s 89 of the Act.
On 24 December 2021, Davis lodged an appeal against the s 89 notice with the Board pursuant to s 94(1)(g) of the Act. In her notice of appeal, she responded to the grounds on which the s 89 notice concluded that she was unfit for duties. Essentially, her response was the same as what she had said in her memorandum to the Commissioner.
On 14 January 2022, the Notice of Retirement was ‘rescinded…pending the final determination’ of Davis’s appeal.
On 15 June 2022, an internal broadcast (‘broadcast’) was issued to all members of the Police Force advising that the Directions were to be revoked with effect from midnight that night, and stating that, from 16 June 2022, mandatory vaccination requirements would be removed and members would no longer be required to be vaccinated to enter their workplace.
On 23 June 2022, Davis applied to the Board for it to admit, pursuant to s 95(3) of the Act, (relevantly) the broadcast as additional material for the purposes of the appeal. On 15 July 2022, Davis amended that application to seek that the appeal proceed as a hearing de novo pursuant to s 95(3) of the Act.
On 2 August 2022, at a preliminary hearing about Davis’s s 95(3) application, the Board made directions as to the filing of written submissions in relation to Davis’s application. The parties filed written submissions in accordance with the Board’s directions. There was no oral hearing about Davis’s application.
On 4 October 2022, the Board delivered a written decision (‘Board’s decision’), in which it decided to admit the broadcast and to conduct the appeal as a hearing de novo.
The Board’s decision:
(a)recited the background facts;
(b)referred to and quoted extracts from Turner v Northern Territory of Australia [2021] NTSC 55 (‘Turner’) regarding the nature of an appeal by way of rehearing and an appeal de novo, and the discretions under s 95(3) of the Act to receive additional material and conduct the appeal as a hearing de novo;
(c)briefly set out the parties’ positions on Davis’s application;
(d)then stated as follows:
The application for the admission of additional material
In considering the discretion to admit additional material Brownhill J discussed at [101] [of Turner] with approval the statement of Martin CJ in McLaren v Legal Practitioners Disciplinary Tribunal (2010) NTLR 45 when he held at [79] that ‘leave for further evidence is required and it is usual for a person seeking leave to explain why the evidence was not called before the Tribunal and to persuade the Court that it is in the interests of justice to permit the evidence to be called on appeal’ and at [81] ‘that there is a need to balance the competing interests of the parties in determining which course best advances the interests of justice’.
[Dealt with other documents Davis sought to have admitted.]
As to [the broadcast] the Board, in deciding to admit same, takes into account:
(a)the document was not in existence at the time the notice of intention was issued;
(b)it has the ability to render the notice of intention nugatory ie the sole ground relied on was [Davis’s] unvaccinated status;
(c)there is no prejudice to the [Commissioner] given the notice of intention was just that – notice to [Davis] that she faced the termination of her employment.
The nature of the hearing of the appeal
[Davis] appeals from the notice of intention which was issued on the sole ground that she was unvaccinated. Given that she no longer needs to be vaccinated to work and remains an employee, the appeal should be heard de novo.
Relief sought
The Commissioner brought this application for judicial review and sought:
(a)in relation to the Board’s decision to admit the broadcast: declarations that the decision was (i) made without evidence; (ii) denied the Commissioner procedural fairness; (iii) failed to have regard to the interests of justice, which was the statutory basis for the exercise of the discretion and a mandatory relevant consideration; (iv) was unreasonable or illogical or irrational; and (v) failed to provide adequate reasons;
(b)in relation to the Board’s decision to conduct the appeal as a hearing de novo: declarations that the decision (i) failed to have regard to the interests of justice, which was the statutory basis for the exercise of the discretion and a mandatory relevant consideration; (ii) was unreasonable or illogical or irrational; and (iii) failed to provide adequate reasons;
(c)orders in the nature of certiorari quashing the Board’s decisions; and
(d)orders in the nature of mandamus compelling the Board to decide the application according to law.
Sections 94 and 95 of the Act
Pursuant to s 94(1)(g) of the Act, a member of the Police Force aggrieved by a direction, action or intention by or of the Commissioner within s 89 may appeal to an Inability Appeal Board. Such appeal boards are constituted by three persons, being a Chairman (who must be a lawyer admitted to the legal profession for at least five years, or a person with other qualifications or experience which are suitable for the office (s 94(5))), a person nominated by the Police Association and one other person from a panel approved by the Minister on the advice of the Commissioner (s 94(2)). In determining an appeal, an appeal board may: (a) disallow the appeal; or (b) allow the appeal in whole or in part and direct the Commissioner or member to take such action under (relevantly) s 89 as the appeal board considers necessary (s 94(6)).
Section 95(2) provides that, subject to s 95(3), an appeal shall be by way of review of the material taken into account by (relevantly) the Commissioner against whose direction, action, intention, decision or opinion the appeal is lodged. Section 95(3) provides that, where a party to an appeal considers that there was additional material that was not available to the Commissioner before he took the action or formed the intention, the party may apply to the appeal board to admit that material and, in its discretion, to deal with the appeal as a hearing de novo. For the purpose of determining whether to admit the material or to declare the appeal a hearing de novo, the appeal board may conduct a preliminary hearing (s 95(4)). The procedure for an appeal or a preliminary hearing is, subject to s 95 and the Police Administration Regulations 1994 (NT), within the discretion of the appeal board (s 95(6)). An appeal is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of Part VI of the Act and a proper consideration of the matter permit (s 95(7)). Appeals may be by way of oral hearing or on the papers (ss 95(8)-(9), (11)-(12)) and are not to be heard in public unless a party requests it and the appeal board agrees (s 95(10)). If an appeal board conducts an appeal as a hearing de novo, it may admit evidence at the appeal notwithstanding that the evidence would not be admissible in a court (s 95(13)), summon a person whose evidence appears to be material to the appeal, require a person to give evidence on oath and require a person to produce documents or records in their possession or control which appear to be material to the appeal (s 95(14)). An appeal board can strike out a vexatious or frivolous appeal and award costs (s 95(16)). An appeal board must give its decisions in writing and serve them on the parties, and if a party requests it, an appeal board must provide them with written reasons for the decision (s 95(17)).
There is no dispute that s 95(5) of the Act permits a decision of the Board under s 95(3) to be reviewed for jurisdictional error by this Court.[2]
Discretions to admit additional material and conduct an appeal de novo
Turner involved an appeal to a Disciplinary Appeal Board under s 94(1) of the Act. The decision dealt with s 95 of the Act, which applies equally to appeals to disciplinary appeal boards and to inability appeal boards. There was no dispute that the findings about the operation and effect of s 95(3) in Turner apply equally to the present matter.
In Turner, I held (at [99]) that, on an application under s 95(3) of the Act, an appeal board may: (a) admit additional material and either: (i) declare the appeal a hearing de novo, with the consequence that the matter is to be heard afresh and a decision given on the evidence presented at the hearing; or (ii) maintain the appeal as one by way of rehearing with the consequence that the appellant must show error in the action (here, the intention) appealed from by reference to the evidence before the disciplining member (here, the Commissioner) and the additional material; or (b) refuse to admit additional material, with the consequence, generally speaking, that the appeal is maintained as one by way of rehearing requiring the appellant to show error in the taking of the action (here, forming of the intention) appealed from by reference to the evidence before the disciplining member (here, the Commissioner).
Both parties accepted that s 95(3) confers two distinct discretions.
I accept Davis’s submission that the two discretions are intrinsically linked because, as I observed in Turner (at [100]), a hearing de novo naturally contemplates, as part of hearing the matter afresh, the receipt of additional material. The two discretions are also intrinsically linked because, as set out in paragraph [35] below, the test to be applied by an appeal board in exercising both discretions is the same, namely whether it is in the interests of justice to exercise the discretion.
Discretion to receive additional material
In Turner, I held (at [101]-[102], [123]-[124]), applying the observations of the plurality in McLaren v Legal Practitioners Disciplinary Tribunal (2010) 26 NTLR 45 (‘McLaren’), that the power to receive additional material in s 95(3) turns on whether it is in the interests of justice to permit the additional material to be admitted, which requires an appeal board to consider the nature and content of the proposed additional material and balance the competing interests of the parties in determining which course best advances the interests of justice. I held (at [116]) that a relevant matter which an appeal board may consider is the effect of the admission of the additional material upon the result and hearing of the appeal. I held (at [111]-[117]) that the appeal board in that case had applied a wrong test and thereby misconstrued or misunderstood its statutory duty and failed to apply itself to the question which s 95(3) prescribes, and so its decision to refuse to admit the additional material was infected by jurisdictional error.
In Turner, I found (at [119]) it unnecessary to consider what matters constitute relevant considerations which an appeal board is bound to take into account for its decision under s 95(3) to be valid, because of the conclusion that the wrong test had been applied.
In the present case, the only matter argued by the Commissioner to be a mandatory relevant consideration in exercising the discretion in s 95(3) to admit additional material was the interests of justice. The Commissioner argued both that the Board had failed to take into account the mandatory relevant consideration of the interests of justice, and in doing so had not applied itself to the statutory condition for the exercise of the discretion, namely the interests of justice. Given that the statutory power to exercise the discretion turns on whether it is in the interests of justice to admit the additional material, the interests of justice are obviously a mandatory relevant consideration.

Consequently, as in Turner, it is unnecessary to grapple with the issue of statutory construction which identifies what other matters constitute mandatory relevant considerations in the exercise of the discretion to admit additional material under s 95(3).
It must be borne in mind that judicial review for jurisdictional error does not involve merits review. The question is not whether the Board was right or wrong about what the parties’ competing interests were, the balance of the parties’ competing interests or what the interests of justice required. The question is whether the Board’s decisions to admit the broadcast and conduct an appeal de novo were made on the basis of, and by taking into account, those matters.
Discretion to conduct an appeal de novo
Section 95(3) is silent as to the matters that govern the exercise of this discretion. This was not a matter the subject of the decision in Turner. The parties accepted that the discretion to conduct an appeal as an appeal de novo in s 95(3) also turns on whether it is in the interests of justice to do so, which requires an appeal board to balance the competing interests of the parties in determining which course best advances the interests of justice.
Admission of the broadcast
Interests of justice and the competing interests of the parties
In its reasons, under the heading ‘The application for the admission of additional material’, the Board referred to what was said in McLaren about persuasion as to the interests of justice and the need to balance the competing interests of the parties in determining which course best advances the interests of justice. The Board then identified (in paragraph 14) that, in admitting the broadcast, it took into account: (a) that the broadcast was not in existence when the s 89 notice was issued; (b) that the broadcast has the ability to render the s 89 notice nugatory as the sole ground relied on for the opinion as to unfitness was Davis’s unvaccinated status; and (c) that there was no prejudice to the Commissioner because the s 89 notice was only a notice of intention to terminate Davis’s employment.
There is an express reference to the need to consider the interests of justice and balancing the parties’ competing interests. There is also an express reference, in paragraphs 14(b) and (c), to matters which obviously constitute what the Board saw to be the parties’ competing interests.
The Commissioner’s arguments on a number of grounds assumed that paragraph 14(b) addressed Davis’s interests, while paragraph 14(c) addressed the Commissioner’s interests. If that was right, it is difficult to see how it could be concluded that the Board failed to consider the competing interests of the parties. In any event, that is not the only reading of the Board’s reasons which is open. Paragraph 14(b) refers to the potential removal of the sole basis for the opinion in the s 89 notice that Davis was unfit for duties, which the Board considered had the potential to render the intention the subject of the appeal ‘nugatory’. The paragraph is not expressed to relate solely to Davis’s interests. Rather, paragraph 14(b) expressly recognises the impact of admitting the broadcast on the intention appealed from and the appeal, in respect of which both parties obviously have interests in relation to its pursuit. Paragraph 14(c) then refers to prejudice to the Commissioner. Read in the context of that understanding of paragraph 14(b), paragraph 14(c) can be read as referring to ‘no other prejudice’ to the Commissioner from admitting the broadcast. So understood, it is apparent that the Board considered that the interests of Davis captured by paragraph 14(b) outweighed the interests of the Commissioner captured by paragraphs 14(b) and (c). It is apparent from the statement that the Board took into account the three matters in deciding to admit the broadcast and that the Board considered that the interests of justice lay in admitting the broadcast.
Therefore, it cannot be concluded that the Board did not take into account the mandatory relevant consideration, or misconstrued or misunderstood its statutory duty, or did not apply itself to the question prescribed by s 95(3).
These grounds are not made out.
No evidence of absence of prejudice
The Commissioner argued that there was no evidence to support the finding in paragraph 14(c) of the Board’s reasons. In this Court, the Commissioner put on affidavit evidence about the prejudice that would follow from the exercise of the discretions in s 95(3). Essentially, the Commissioner’s delegate stated that his opinion in the s 89 notice was founded on his view that Davis’s decision to disobey the Commissioner’s direction put her own self-interest above that of the best interests of the community, contrary to the Oath she took when commencing as a Police member and contrary to the operational requirements of the Police Force, which may require members to perform duties anywhere in the Territory, including locations such as remote Indigenous communities, quarantine centres, testing stations and vaccination centres. The Commissioner’s delegate also stated that Davis’s failure to follow the Commissioner’s direction was contrary to the integrity of the command structure of the Police Force and was not obviated by the removal of the requirement for vaccination.
A finding made by an administrative decision maker for which there is no evidence may constitute jurisdictional error, at least where the matters the subject of the finding are jurisdictional facts.[3] Neither party argued that the existence of prejudice to the Commissioner was a jurisdictional fact. Even if it was (and I express no view one way or the other), I do not accept the Commissioner’s submissions on this ground, for the reasons which follow.
The Board’s finding was that there was no prejudice to the Commissioner.
Despite being given the opportunity to make written submissions as to Davis’s application for the admission of the broadcast (which opportunity was taken up, with the Commissioner submitting only that, as the broadcast post-dated the s 89 notice, it was irrelevant), and despite having the opportunity at a preliminary hearing to seek to put on evidence in response to Davis’s application for the admission of the broadcast (which opportunity was not taken up), the Commissioner did not put on any evidence, or make any written submissions, about any prejudice that might be suffered from the admission of the broadcast. None of the matters referred to in paragraph [41] above were put before the Board by the Commissioner.
The evidence to support the Board’s finding that there was no prejudice to the Commissioner (other than that referred to in paragraph 14(b)) was the absence, after the opportunities just referred to, of any evidence or submission sought to be put or put on behalf of the Commissioner about prejudice.
Therefore, it cannot be concluded that there was no evidence to support the Board’s finding in paragraph 14(c).
This ground is not made out.
I note, in passing, that the Board’s decisions do not preclude the Commissioner from putting the matters set out in paragraph [41] above to the Board when the appeal is heard.
Procedural fairness
The Commissioner argued that he was denied procedural fairness because he was not informed, and could not reasonably have known, that the Board would take into account its finding that there was no prejudice to the Commissioner (other than that referred to in paragraph 14(b) of the Board’s reasons) in admitting the broadcast.
The parties agreed that a denial of procedural fairness in the appeal process under the Act may constitute jurisdictional error. Procedural fairness requires a decision maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power and to advise the parties of any adverse conclusion which would not obviously be open on the known material.[4]
The Board was to determine Davis’s application for admission of the broadcast. It was to do so by considering the competing interests of the parties and where the interests of justice lay. That was the basis of the exercise of the discretion. A critical issue in such consideration is whether a party’s interests would be prejudiced by the exercise of the discretion. The critical issue is apparent, if not obvious, from the nature of the decision.
Such prejudice is a common and well-known consideration when courts exercise discretionary powers. It is also a matter relevant to, if not the primary consideration for, the receipt of fresh or new evidence in courts.[5] That discretionary exercise is similar to the discretionary exercise involved in admitting additional material under s 95(3) of the Act. That the Board would consider the prejudice to the parties from the admission of the broadcast when determining Davis’s application was a critical issue apparent from the nature of the discretion and obviously open on the material before the Board (which included the evidence of no prejudice referred to in paragraph [45] above).
Given the opportunities referred to in paragraph [44] above, and the absence of any evidence or submission from the Commissioner pointing to prejudice he would suffer if the broadcast were admitted, the Commissioner should reasonably have known that the Board might find there would be no prejudice to the Commissioner (other than that referred to in paragraph 14(b) of the Board’s reasons).
Therefore, the Commissioner was not denied procedural fairness because the Board found there was no prejudice as set out in paragraph 14(c) of its reasons.
This ground is not made out.
Adequacy of reasons
The Board is required, if requested by a party, to provide written reasons for its decisions (s 95(17)). The parties were agreed that the Board’s failure to provide reasons, or adequate reasons, may constitute jurisdictional error.
The Commissioner argued that the Board’s reasons on Davis’s application under s 95(3) were inadequate. All of the authorities relied on by the Commissioner regarding the required standard for reasons were cases involving the reasons of a court. The Commissioner accepted that a lesser standard applies to administrative tribunals. The Commissioner also accepted that the reasons of administrative decision makers are to be read fairly and in their entirety in the context of what was presented and without an eye attuned to error.[6]
In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, the High Court addressed the standards required of a written statement of reasons by an administrative tribunal (in that case, a medical panel) given pursuant to a statutory provision. The Court held (at [43]) that the starting point is recognition that there is in Australia no free-standing common law duty to give reasons for making a statutory decision. Hence, the duty to give reasons ‘is no more and no less than the statutory duty’ imposed by the provision itself and the content of that statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it. The Court held (at [44]) that the standard required of written reasons to fulfil the duty imposed on the administrative tribunal fell to be determined as an exercise in statutory construction, and in the absence of express statutory prescription, that standard could be determined only by a process of implication. The Court held (at [45) that general observations, drawn from cases decided in other statutory contexts and from academic writing, about functions served by the provision of reasons for making administrative decisions are of limited utility. The Court identified (at [46]) two considerations of particular significance in determining by implication the standard required of written reasons. The first was the nature of the function performed by the administrative tribunal in making its decision. The second was the objective, within the scheme of the relevant statute, of requiring the administrative tribunal to give a written statement of reasons for its decision.
The Act does not state expressly what standard is required of an appeal board’s written reasons. It is therefore necessary to identify the standard by implication through a process of statutory construction.
When exercising its discretion under s 95(3) of the Act, an appeal board is deciding whether to admit into evidence on an appeal material which was not before the original administrative decision maker and/or whether to conduct the appeal as a hearing de novo. The discretion is a preliminary or interlocutory decision, rather than a final decision. An appeal board is required to balance the competing interests of the parties and consider the interests of justice. The objective of requiring a written statement of reasons, if a party requests it within 14 days after receiving a copy of the decision, would appear to be to permit this Court to exercise its supervisory jurisdiction (which is expressly confirmed in s 95(5)), and, it must follow, to permit a party to decide whether or not to seek judicial review. It follows from these matters that the written reasons should set out how the appeal board considered that the parties’ interests would be affected by the exercise of the discretion/s and where the interests of justice lie. The appeal board’s reasoning on these matters should be sufficiently exposed to enable this Court, exercising its supervisory jurisdiction in s 95(5), to see whether the decision does or does not involve jurisdictional error.
The Commissioner argued that the Board’s reasons were inadequate because they do not explain why the decisions were made in the circumstances of the matter or how the decisions served the interests of justice. They were said to be ‘entirely conclusionary’ and insufficient to enable this Court to exercise its supervisory jurisdiction.
As set out in paragraphs [37] to [38] above, the reasons did set out what the Board saw to be the competing interests of the parties, and the impact of the admission of the broadcast on those interests and the appeal generally, and it is apparent that the Board was of the view that, on balancing those competing interests, the interests of justice lay in admitting the broadcast. In the circumstances where the Board considered that the broadcast potentially removed the sole ground for the opinion that Davis was unfit for duties in the s 89 notice appealed from, which could have consequences for the appeal (and the parties’ interests in its pursuit), and the Commissioner had not put on any evidence or made any submissions that he would be prejudiced by admission of the broadcast, there was not much more that could have been said by the Board about the balance of the competing interests and where the interests of justice lay. In these circumstances, the reasons were adequate.
Therefore, it cannot be concluded that the Board’s reasons were inadequate.
This ground is not made out.
Unreasonable / illogical / irrational
A statutorily conferred power is to be exercised reasonably,[7] which does not involve substituting a court’s view as to how a discretion should be exercised for that of the decision maker,[8] is not limited to what is in effect an irrational, or bizarre, decision,[9] and extends to a decision which lacks an evident and intelligible foundation.[10] In Minister for Home Affairs v DUA16 (2020) 271 CLR 550, the High Court held (at [26]) that:
A requirement of legal reasonableness in the exercise of a decision maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn ‘from the facts and from the matters falling for consideration in the exercise of the statutory power’. [citations omitted]
The Commissioner argued that the Board’s finding in paragraph 14(c) that there was no prejudice to the Commissioner was unreasonable / illogical / irrational in light of the Board’s finding in paragraph 14(b) that the broadcast had the potential to render the s 89 notice nugatory. As set out in paragraph [38] above, the Commissioner assumed paragraph 14(c) referred to all prejudice that might be suffered by the Commissioner.
As set out in paragraph [38] above, I consider it to be sufficiently clear that the Board’s finding in paragraph 14(b) about the potential impact of the admission of the broadcast on the sole ground relied on in the s 89 notice for the opinion that Davis was unfit for duties was a finding that encapsulated the impact of the admission of the broadcast on both parties’ interests in the appeal such that the finding in paragraph 14(c) was that there was no other prejudice to the Commissioner if the broadcast were admitted.
So understood, the finding in paragraph 14(c) is not unreasonable / illogical / irrational.
This ground is not made out.
Conducting an appeal de novo
Failure to consider and determine the two discretions separately
The Commissioner argued that the two discretions in s 95(3) were distinct and the Board had not exercised them individually, but had conflated their exercise, which was to misconstrue or misunderstand the duty imposed by s 95(3) or to fail to address the question prescribed by s 95(3).
It is important to read the Board’s reasons as a whole. They included a section headed ‘The nature of an appeal and the admission of additional material’, which set out what was said in Turner (at [99]) about the discretion as to whether or not to conduct an appeal de novo after exercising the discretion to admit additional material. Then followed the two sections with the headings ‘The application for the admission of additional material’ and ‘The nature of the hearing of the appeal’. Under the heading ‘The nature of the hearing of the appeal’, the Board stated that Davis appealed from the notice of intention which was issued on the sole ground that she was unvaccinated. The Board then stated that, given Davis no longer needs to be vaccinated to work and remains an employee, the appeal should be heard de novo.
There was an express recording in the Board’s decision of the separate discretions as set out in Turner and individual treatment of the two discretions, under two separate headings. Unsurprisingly given that the same test applies to each, the reasons expressed under each heading are similar in one respect, referring to the s 89 notice being founded on the sole ground that Davis was unvaccinated. However, the reasons were different in other respects (eg, Davis no longer needs to be vaccinated to work and remains an employee).
Therefore, it cannot be concluded that the Board did not address each discretion separately and individually.
Interests of justice and the competing interests of the parties
The Commissioner accepted that both discretions turned on the interests of justice and required the Board to consider the competing interests of the parties. The Commissioner argued that, in deciding whether to conduct an appeal de novo, the Board was required to consider and take into account where the interests of justice lay in conducting the hearing as an appeal de novo as against an appeal by way of rehearing. The Commissioner argued that the Board did not do so. The Commissioner also argued that the failure to do so rendered the Board’s decision about the nature of the hearing unreasonable.
As already mentioned, the Board’s reasons included a section headed ‘The nature of an appeal and the admission of additional material’. That section set out what was said in Turner (at [93]) about the difference between an appeal by way of rehearing and an appeal de novo. There was then an express reference, under the section headed ‘The application for the admission of additional material’ (‘first heading’), to the interests of justice and the need to balance the competing interests of the parties in determining which course best advances the interests of justice. That was not repeated under the following section headed ‘The nature of the hearing of the appeal’ (‘second heading’), but that is not a reason to ignore what the Board said under the first heading. It would be unduly formulaic and technical to require the Board to repeat under the second heading what it had said under the first heading. There is no fair reason to conclude that the Board did not consider and take into account where the interests of justice lay in making the decision dealt with under the second heading.

There was an express statement of the differences between an appeal by way of rehearing and an appeal de novo. There was an express reference, in the second heading, to ‘the nature of the hearing of the appeal’. There was an express reference to the sole ground for the opinion in the s 89 notice that Davis was unfit for duties, and express reference to matters that had occurred (the cessation of the requirement to be vaccinated to enter the workplace) or persisted (Davis remained an employee) subsequent to the s 89 notice. It was expressly stated that it was those matters that led the Board to the view that the appeal should be heard de novo (and not by way of rehearing).
It was implicit, but nevertheless apparent, that the Board considered that the interests of justice lay in conducting the appeal de novo (where Davis would not have to establish error in the s 89 notice) rather than as a rehearing (where Davis would have to establish a legal, factual or discretionary error in the s 89 notice). Implicitly, but nevertheless apparently, the Board considered that, in the circumstances it outlined, the course that would best advance the interests of justice was for it to determine the matter afresh.
Therefore, it cannot be concluded that the Board did not take into account the mandatory relevant consideration or misconstrued or misunderstood its statutory duty or did not apply itself to the question prescribed by s 95(3). Nor can it be concluded that the Board’s decision was unreasonable for failing to do so.
These grounds are not made out.
Adequacy of reasons
The Commissioner made the same argument as referred to in paragraph [61] above in relation to the Board’s reasons regarding the discretion to conduct an appeal de novo.
For the reasons set out in paragraphs [75] to [77] above, the Board’s reasons meet the standard required for written reasons set out in paragraph [60] above.
This ground is not made out.
Disposition and relief
None of the grounds of judicial review pressed by the Commissioner have been made out.
The originating motion and summons on originating motion are dismissed.
I will hear the parties as to costs.
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[1] In the remainder of these reasons, the phrase ‘unfit for duties’ will be used as a short form of the opinion.

[2] See Turner at [22] per Brownhill J.

[3] See Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at [46] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [39] per Gummow and Hayne JJ (Gleeson CJ agreeing) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [31] per Gummow ACJ and Kiefel J.

[4] Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Kiefel J (Heydon and Crennan JJ agreeing).

[5] See Smith v New South Wales Bar Association (1992) 176 CLR 256 at 267 per Brennan, Dawson, Toohey and Gaudron JJ; Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493-494 per Toohey J, citing Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 and Murray v Figge (1974) 4 ALR 612.

[6] Citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[7] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] per Hayne, Kiefel and Bell JJ.

[8] Ibid at [66].

[9] Ibid at [68].

[10] Ibid at [76].