Ferdinands v Police No. Scciv-02-136

[2002] SASC 46

FERDINANDS  v  POLICE
[2002] SASC 46

Miscellaneous Application
Nyland J:

1. This is an application for review of a decision of a District Court judge made in the Administrative and Disciplinary Division of the court on 6 July 2001.

2. The originating matter related to disciplinary proceedings before the Police Disciplinary Tribunal (“the Tribunal”).  The Police Commissioner sought to prove that the applicant had made a false complaint against a senior member of the police force.  In a letter dated 1 March 1998 addressed to the Police Complaints Authority, the applicant alleged that a police inspector in the South Australian Police Force had been motivated by racism in testifying against him in a separate disciplinary action against the applicant. 

3. The charge was proved and the applicant was, as a result, suspended from duties on 6 April 2001.  The applicant then appealed against that decision.  The appeal was heard by a judge sitting in the Administrative and Disciplinary Division of the District Court.  The appeal was dismissed on 6 July 2001.  The applicant then lodged the present application which is described as “Application for referral of decision of District Court judge (named) for assessment by Supreme Court of South Australia”. 

4. The applicant, who appeared in person on the hearing of the application, provided a written outline of argument in which he sought the following orders:

   “1. I would ask this fair court, and His Honour to rule that section 46 part 8, of the Police (Complaints and Disciplinary Proceedings) Act 1985 is unconstitutional. It restricts the rights of police officers to appeal the Supreme Court decisions and orders of a District Court Judge, and this restriction is a denial of natural justice.

   2.     I ask His Honour to inform Parliament or the Legislative Review Committee of Parliament, that the District Court 1991 is superior legislation as to the rights of appeal, and no inferior Act of Parliament can impose restrictions, borders or limitations upon a superior Act of Parliament, or members of the judiciary, and that those restrictions, borders or limitations, if imposed, would be invalid in law, and that the Supreme Court would be duty bound to uphold the rights of the individual against the rights of parliamentary law, and if that did occur, it would infer that the Courts were ignoring statute legislation, passed by Parliament, but not to the contempt of Parliament, but to the preference of the principles of justice, fairness and judicial precedent.”

5. Essentially, the applicant wishes to be able to pursue an appeal to the Supreme Court against the decision of the District Court judge dismissing his appeal. 

6. Appeals against orders made by the Tribunal or for punishment for breach of discipline are, however, governed by s46 of the Police (Complaints and Disciplinary) Act 1985 (“the Police Act”). Sections 46(1), (2) and (3) provide:

   “(1)A party to proceedings before the Tribunal may appeal to the Court against a decision made by the Tribunal in those proceedings.

   (2)A member of the police force may appeal to the Court against an order of the Commissioner imposing punishment on him or her for a breach of discipline.

   (3)   Subsection (2) applies-

   (a)     whether the charge for the breach of discipline was laid in consequence of the investigation of a mater which this Act applies or otherwise; and

   (b)    whether the order imposing the punishment was made on the member being found guilty of the breach of discipline by the Tribunal or on the member making an admission of guilt to the Commissioner.”

   Of significance to the present case, s 46(8) provides:

   “(8)No further appeal lies against a decision of the Court made on an appeal under this section.”

7. Section 46(9) defines the “Court” referred to in that section as being the Administrative and Disciplinary Division of the District Court. Pursuant to the provisions of s 46, the applicant, being a member of the police force, was entitled to have the decision of the Tribunal reviewed by a judge of that court.

8. Section 43 of the District Court Act 1991 allows for a right of appeal against judgments given in the District Court but s 43(3) thereof provides:

   “In the case of a judgment of the Court in its Administrative and Disciplinary Division, an appeal lies as of right on a question of law and by leave of the Supreme Court on a question of fact but this principle may be displaced or modified by the provisions of the special Act under which the jurisdiction is conferred.”  (emphasis added)

9. Section 46(8) of the Police Act contains such a provision. It clearly provides that no further appeal will lie against a decision made on appeal under s 46. That section operates to limit the operation of s 43 of the District Court Act 1991 in circumstances such as the present. In other words, s 43 of the District Court Act 1991 is the completing privative clause limiting the right of appeal from the Administrative and Disciplinary Division of the District Court.

10. In the course of argument, the applicant indicated that he understood the limiting effect of the relevant provisions but submitted, nevertheless, that it was appropriate for this Court to review the prior decisions affecting him. The applicant appeared to base this submission on his view that the inconsistency provisions of the Commonwealth Constitution enabled Commonwealth anti-discrimination legislation and the Judiciary Act 1903 to operate to invalidate the privative clauses of the State legislation. The applicant asked that this Court declare s 46 of the Police Act as unconstitutional.  He further asked that I make a declaration to the State Parliament in relation to the validity and operation of the Police Act and the District Court Act 1991. In particular he asked that I revoke s 46(8) of the Police Act. 

11. It is obvious that the applicant’s argument is, from the outset, fundamentally misconceived.  The decisions of the Tribunal and the District Court which he seeks to have reviewed by way of further appeal were made within jurisdiction.  Consequently the privative clauses operate validly to extinguish the applicant’s further right of appeal beyond the Administrative and Disciplinary Division of the District Court.  The appeal was dismissed by the District Court judge on 6 July 2001 and that is the end of the matter.  As I endeavoured to explain to the applicant in the course of the hearing, this Court does not have the power to revoke legislation or declare legislation of this State unconstitutional.  The application is therefore refused.