Turner v Northern Territory of Australia

[2021] NTSC 55

CITATION:Turner v Northern Territory of Australia & Anor [2021] NTSC 55

PARTIES:TURNER, Edmund Leonard

v

NORTHERN TERRITORY OF AUSTRALIA

and

COMMISSIONER OF POLICE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:2021-00125-SC

DELIVERED:  30 July 2021

HEARING DATE:  14 May 2021

JUDGMENT OF:  Brownhill J

CATCHWORDS:

ADMINISTRATIVE LAW – Whether reviewable error of law – Jurisdictional error – Procedural fairness – Whether investigating member had obligation to provide Police member subject to investigation of breach of discipline notice of and opportunity to respond to adverse material – s 81(3) Police Administration Act 1978 (NT).

ADMINISTRATIVE LAW – Whether reviewable error of law – Jurisdictional error – Procedural fairness – Refusal to receive additional material responsive to adverse material – Orders made in the nature of certiorari and mandamus.

ADMINISTRATIVE LAW – Whether reviewable error of law – Jurisdictional error – Procedural fairness – Whether Board was obliged to consider content of proposed additional material in determining whether to receive it.

ADMINISTRATIVE LAW – Whether reviewable error of law – Jurisdictional error – Procedural fairness – Refusal of Board to permit Police member to cross-examine the investigating officer and a Police member who provided adverse material – Orders made in the nature of certiorari and mandamus.

MEANING OF TERMS – ‘Oral hearing’.

Cornall v AB [1995] 1 VR 372; Holmes v Commissioner of Police (2011) 30 NTLR 195; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; McLaren v Legal Practitioners Disciplinary Tribunal (2010) 26 NTLR 45; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, applied.

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Allesch v Maunz (2000) 203 CLR 172; Annetts v McCann (1990) 170 CLR 596; AX v Mental Health Review Tribunal [2019] NTSC 34; AYHT v Medical Board of South Australia (2000) 77 SASR 148; CDJ v VAJ (1998) 197 CLR 172; CH v Mental Health Review Tribunal (2017) 320 FLR 417; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Commissioner of Police Service v Parole Board of Queensland (2019) 3 QR 251; Costi v Keats [1972] 2 NSWLR 957; Cox v Snowball & Kaufmann [1930] VLR 325 at 340; Craig v South Australia (1995) 184 CLR 163; Day v Harness Racing New South Wales (2014) 88 NSWLR 594; Eastman v Australian Capital Territory (2014) 9 ACTLR 119 at 131; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Hossain v Minister for Border Protection (2018) 264 CLR 123;Johns v Australian Securities Commission (1993) 178 CLR 408; Kioa v West (1985) 159 CLR 550; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Maclean v Workers Union [1929] 1 Ch 602; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; Moran v Secretary to the Dept of Justice and Regulation (2015) 48 VR 119; Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235; Rose v Bridges (1997) 79 FCR 378; Simjanoski v La Trobe University [2004] VSC 180;The Queen v Rolfe [2021] NTSC 46; Twist v Randwick Municipal Council (1976) 136 CLR 106, referred to.

Concise Australian Legal Dictionary, 4^th ed, LexisNexis; Cross on Evidence, [Advance.Lexis.com]; D Greenbero, Jowitt’s Dictionary of English Law, 3^rd ed, Sweet & Maxwell; E Hardy Ivamy, Mozley & Whiteley’s Law Dictionary, Butterworths; Garner, Black’s Law Dictionary, 9^th ed, West; Australian Legal Dictionary, 2^nd ed, LexisNexis; Greenberg, Stroud’s Judicial Dicitionary, 8th ed, Sweet & Maxwell; I Freckelton, Expert Evidence, 6^th ed (2019), Lawbook Co Thomson Reuters; M Aronson, et al, Judicial Review of Administrative Action and Government Liability, 6^th ed, (2017), Law Book Co, Thomson Reuters; M Aronson, et al, Judicial Review of Administrative Action and Government Liability, 6^th ed, (2017), Law Book Co, Thomson Reuters; M Woodley, Osborn’s Concise Law Dictionary, 11^th ed, Sweet & Maxwell; Words and Phrases Legally Defined, 4th ed, LexisNexis.

Acts Interpretation Act 1954 (Qld) s 27.
Corrective Services Act 2006 (Qld).
Evidence (National Uniform Legislation) Act 2011 (NT) ss 118, 119.
Interpretation Act 1978 (NT), ss 3, 24, 70.
Police Administration Act 1978 (NT) ss 14C, 70, 76, 78, 79, 79A, 81, 82, 83, 84, 84A, 84B, 84C, 84D,84E, 84F, 93, 94, 95, 101, Part IV.
Police Administration Regulations 1994 (NT) reg 18.
Public Service Act 1922 (Cth).
Supreme Court Act 1979 (NT) s 22.

REPRESENTATION:

Counsel:

Plaintiff:R Murphy

First Defendant:  T Hutton

Second Defendant:  M Chalmers

Solicitors:

Plaintiff:Murphy & Associates

First Defendant:  Hutton McCarthy

Second Defendant:  Solicitor for the Northern Territory

Judgment category classification:    B

Judgment ID Number:  Bro2114

Number of pages:  65

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Turner v Northern Territory of Australia & Anor [2021] NTSC 55

No. 2021-00125-SC

BETWEEN:

EDMUND LEONARD TURNER

AND:

NORTHERN TERRITORY OF AUSTRALIA

AND:

COMMISSIONER OF POLICE

CORAM:    BROWNHILL J

REASONS FOR JUDGMENT

(Delivered 30 July 2021)

1. There are four issues raised in this matter. The first issue is whether there was an obligation to provide a Police member the subject of an investigation into an alleged breach of discipline under s 81(3) of the Police Administration Act 1978 (NT) (‘Act’) with notice of, and the opportunity to respond to, adverse material before determining to take disciplinary action under s 84(b)(ii) of the Act. That provision permits a breach of discipline to be dealt with by counselling and a caution. The second issue is whether the refusal of a Disciplinary Appeal Board (‘Board’) to receive, under s 95(3) of the Act, additional material from the Police member responsive to the adverse material taken into account in the investigation was infected by jurisdictional error. The third issue is whether the Board was obliged, but failed, in determining whether to receive the additional material, to consider the content of the proposed additional material. The fourth issue is whether the refusal of the Board to permit the Police member to cross-examine the investigating officer and a Police member who provided the adverse material was infected by jurisdictional error.

   Background

2. The factual and procedural background is not in dispute.

3. The plaintiff (‘Turner’) is an Acting Senior Sergeant of the Northern Territory Police Force. He has been a member for over 30 years. In September 2019, Turner arrested a youth suspected of offending. During the arrest, Turner pulled his firearm and pointed it at the offender.

4. Turner reported having done so pursuant to the administrative requirement for reporting any ‘use of force’. The use of force report was reviewed by Senior Sergeant Robert Jordan (‘Jordan’). Jordan had been a member for over 30 years. Jordan concluded that Turner’s deployment of his firearm was appropriate in the circumstances.

5. Acting Superintendent Glenn Leafe (‘Leafe’) of Professional Standards Command (‘PSC’) undertook inquiries into the use of force, and Turner was required, pursuant to s 79A of the Act, to answer questions and provide information in relation to an alleged or suspected breach of discipline. In accordance with that requirement, Turner participated in an interview (‘directed interview’). In the course of the directed interview, Turner was instructed not to discuss or disclose anything covered during the directed interview with any other person ‘who is not subject to legal privilege’ until the investigation is complete.

6. Leafe prepared a memo to the Commander, PSC recommending the issue to Turner of a notice under s 79 of the Act. In the memo, Leafe set out Jordan’s view that it is a reasonable assumption to suspect that a youth could be armed with ‘edged weapons’ and that he had no issue with the force used. In the memo, Leafe then stated as follows:

   It is not appropriate to suggest that firearms should be drawn on arrest targets who fit a particular demographic or type; each instance must address the threat and risks associated on a case by case basis. The above rationalisation is prone to dangerous precedence [sic].

   Should the conduct of … Turner warrant action then it stands to reason that … Jordan must also be spoken with and provided remedial advice around the [use of force] and risk associated. It may be that Commander PSC concurs with the thinking of … Jordan.

7. Leafe recommended that Jordan be provided remedial advice regarding his view that Turner’s use of force was appropriate. In accepting the recommendations contained in the memo, the Commander, PSC noted that Turner had no prior history of any excessive force breach of discipline.

8. Following the recommendation in the memo to do so, Turner was issued with a s 79 notice which stated that a prescribed member[1] (being Leafe) believes on reasonable grounds that Turner had committed four breaches of discipline, namely disgraceful or improper conduct within s 76(a) of the Act, a failure to obey use of force principles in a General Order contrary to s 76(d) of the Act, a failure to obey body worn video instructions contrary to s 76(d) of the Act[2] and a failure to comply with the Code of Conduct and Ethics General Order contrary to s 76(c) of the Act.

9. Turner provided a response to the s 79 notice pursuant to s 81 of the Act. Turner’s response was essentially that his use of force was appropriate in the circumstances because the suspect had exited a stolen vehicle the occupants of which had been throwing ‘missiles’ at police, there was poor lighting, the suspect was coming towards him rather than running away, the suspect did not obey directions to stop, Turner did not know whether or not the suspect had a weapon and Turner had only seconds to decide what to do.

10. Leafe provided Turner with notice of his intention to investigate the alleged breaches of discipline pursuant to s 81(3) of the Act. That investigation was undertaken by Detective Acting Senior Sergeant Wade Jeremiah (‘Jeremiah’).

11. In the course of the investigation, Jeremiah sought the views of a member of the Operational Safety Section of the Recruitment, Induction and Operational Safety Division, College Command, as to whether Turner’s conduct was ‘outside of current norms and teachings’ and as to ‘how serious’ the Division viewed the conduct. The member whose views were ultimately provided was referred to as a ‘SME’, which stands for ‘subject matter expert’. The SME was Sergeant Nick Scott (‘Scott’). In making the request, Jeremiah provided Scott with Turner’s use of force report, the s 79 notice and Turner’s response to the s 79 notice.

12. Scott provided Jeremiah with his views by phone. The substance of the phone conversation was recorded in an email from Jeremiah to Leafe. The email noted that Scott asked two factual questions about the circumstances of Turner’s conduct and Jeremiah told Scott what his understanding of those factual matters was. The two matters were whether the ‘projectiles’ thrown from the vehicle were thrown at police and whether the suspect ran towards Turner. Jeremiah conveyed to Scott that the items thrown from the car were not thrown at police, but were likely an attempt to dispose of evidence (namely bottles of alcohol obtained during an unlawful entry), and that Turner had positioned himself in front of the suspect rather than the suspect turning to run towards Turner. The email records that Scott confirmed Jeremiah’s view that ‘the lack of identification of a threat does not equal a threat’ and other options were available to Turner than pulling his firearm. Jeremiah expressed his view that ‘a threat must be identified prior to any force, let alone a lethal force option being presented’.

13. Turner was served with a written notice of Leafe’s determination made pursuant to s 84(b)(ii) of the Act (‘s 84(b)(ii) determination’), which stated that Leafe continued to believe that Turner had committed the alleged breaches of discipline and determined to counsel and caution Turner.

14. Turner sought review of the s 84(b)(ii) determination pursuant to s 84E of the Act. A review was undertaken by Commander Janelle Tonkin (‘Tonkin’). The review decided that the s 84(b)(ii) determination was the appropriate determination and no change should be made (‘review decision’).

15. Turner appealed the review decision pursuant to s 94(1) of the Act. Around four months later, Turner was provided with an appeal book which included all of the material before Leafe and Tonkin, including the memo disagreeing with Jordan’s view referred to in paragraph [6] above and the email from Jeremiah to Leafe regarding his conversation with Scott referred to in paragraph [12] above.

16. Turner applied for the Board to receive, pursuant to s 95(3) of the Act, a report obtained from Sergeant Andrew Bedwell (‘Bedwell’) providing Bedwell’s expert opinion as to the appropriateness of Turner’s use of force and its consistency with General Orders (‘Bedwell report’) and a statutory declaration from Jordan explaining his view in the use of force report that Turner’s use of force was appropriate in the circumstances (‘Jordan declaration’). If referring to the Bedwell report and the Jordan declaration together, I will refer to them as the ‘proposed additional material’.

17. Turner also applied for the Board’s leave to cross-examine Jeremiah and Scott. The purpose of cross-examination of Scott was to test the veracity of his expert opinion. The purpose of cross-examination of Jeremiah was to put to him deficiencies in his investigation with a view to establishing that the investigation was undertaken poorly.

18. After an oral preliminary hearing, the Board refused Turner’s applications. The Board delivered written reasons for its decision. Those reasons are comprised of a document headed ‘Decision for the admission of additional material’ (‘Reasons’) and an email sent to Turner’s counsel (‘emailed Reasons’). I will describe the content of the Reasons in due course. The emailed Reasons explained the Board’s view that it followed from the Board’s decision to refuse to receive additional material that the hearing of the appeal would not be by way of a hearing de novo and, consequently, the Board had no power to summon witnesses in order to make them available for cross-examination.

    Relief sought and jurisdictional error

19. Turner brought this application for judicial review and seeks:

    (a)in relation to the Board’s decision refusing to receive the proposed additional material (the second issue), declarations that the decision is contrary to law and constituted a denial of procedural fairness, an order in the nature of certiorari quashing the decision, and an order in the nature of mandamus compelling the Board to decide the application according to law;[3]

    (b)in relation to the Board’s failure to consider the content of the proposed additional material (the third issue), a declaration that the Board failed to take into account a relevant consideration;[4]

    (c)in relation to the Board’s decision refusing to allow cross-examination of Scott and Jeremiah (the fourth issue), declarations that the decision was contrary to law and constituted a denial of procedural fairness, an order in the nature of certiorari quashing the Board’s decision and an order in the nature of mandamus compelling the Board to require, pursuant to s 79A of the Act, Scott and Jeremiah to attend the hearing and answer questions put in cross-examination or, alternatively, an order in the nature of mandamus requiring the Board to determine the application to cross-examine according to law.[5]

20. Turner also seeks a declaration that the Board refused to hear the application to cross-examine and thereby denied Turner procedural fairness.[6] The argument is that the Board failed to hear argument as to its powers to permit cross-examination of witnesses notwithstanding a lack of power to summon witnesses. It is unnecessary to consider this ground  because of the conclusions reached below,

21. The first issue arises because Turner argues that Leafe’s failure to inform Turner about, and provide him with an opportunity to respond to, Scott’s and Jeremiah’s opinions that Turner’s use of force was not appropriate, including the rejection of Jordan’s opinion that it was appropriate, before taking the disciplinary action under s 84(b)(ii) of the Act, constituted a denial of procedural fairness which the Board failed to rectify in refusing to receive the proposed additional material and to permit cross-examination of Scott and Jeremiah.

    Jurisdictional error generally

22. There is no right, in the Act, to appeal to a court or tribunal from a decision of the Board. The Act does provide, however, that the decision of the Board on an application under s 95(3) ‘is capable of being reviewed by a court’. There is no dispute that this is a reference to judicial review for jurisdictional error by this Court.

23. In Hossain v Minister for Immigration and Border Protection,[7] Kiefel CJ, Gageler and Keane JJ observed (at [23]) that, in its application to judicial review of administrative action the taking of which is authorised by statute, ‘jurisdiction’ refers to the scope of the authority which a statute confers on a decision maker to make a decision of a kind to which the statute then attaches legal consequences. The term encompasses: (i) all of the preconditions which the statute requires to exist in order for the decision maker to embark on the decision making process; and (ii) all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision making process in order for the decision maker to make a decision of that kind. Their Honours said that a decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have such force and effect as is given to it by the law pursuant to which it was made.

24. Their Honours observed (at [24]) that ‘jurisdictional error’ correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it. Their Honours said that a decision involving jurisdictional error is a decision made outside jurisdiction, which is a decision in fact, but is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as no decision at all.

25. Their Honours observed (at [27]) that, just as identification of the preconditions to and conditions of an exercise of decision making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute.

26. Where a decision maker misconstrues the nature of the statutory function it is performing or the extent of its powers in the circumstances of the case or misconceives its duty, fails to apply itself to the question which the statute prescribes or misunderstands the nature of the opinion which it must form, this will constitute jurisdictional error.[8]

    Failure to accord procedural fairness

27. In Saeed v Minister for Immigration and Citizenship,[9] French CJ, Gummow, Hayne, Crennan and Kiefell JJ observed (at [11]-[12]) that, where a statute does not expressly require that the principles of natural justice be observed, the statute is construed on the footing that those common law principles will, as a matter of presumed legislative intent, be implied. Their Honours said the implication is arrived at by a process of statutory construction which proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a statutory power to destroy or prejudice a person’s rights or interests.

1. Their Honours observed (at [13]) that, where implied, observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, and a failure to fulfil the condition means that the exercise of the power is inefficacious, not authorised by the statute and is invalid. In other words, it constitutes a jurisdictional error.

2. Their Honours observed (at [14]-[15]) that the principles of natural justice can be excluded only by ‘plain words of necessary intendment’, and an intention to exclude them is not to be found from ‘indirect references, uncertain inferences or equivocal considerations’, or from the mere presence in the statute of rights consistent with some natural justice principles. Their Honours said that the presumption is that it is highly improbable that the legislature would overthrow these principles without expressing its intention ‘with irresistible clearness’.

3. In Minister for Immigration and Border Protection v SZSSJ,[10] the High Court held (at [83]) that, ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: (i) the nature and purpose of the inquiry; (ii) the issues to be considered in conducting the inquiry; and (iii) the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. In Minister for Immigration & Citizenship v SZGUR,[11] French CJ and Kiefel J held (at [9]) (Heydon and Crennan JJ agreeing) that 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 of any adverse conclusion which would not obviously be open on the known material’ [emphasis added].

4. In Minister for Immigration and Border Protection v WZARH,[12] Gageler and Gordon JJ held (at [55]-[56]) that, where there is an implied obligation to afford an opportunity to be heard, a failure on the part of a decision maker to give ‘the opportunity to be heard which a reasonable decision maker ought fairly to give in the totality of the circumstances’ [emphasis added] constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the statutory powers of consideration, and such breach is material if it operates to deprive the affected person of the possibility of a successful outcome.[13]

   Statutory construction

5. It is trite, but it follows that determination of this matter turns upon the proper construction of the relevant provisions of the Act, applying the presumption that the legislature would have intended the application of procedural fairness to decisions adversely affecting a person’s interests.

   First issue: Was there an obligation to provide an opportunity to respond to adverse material before disciplinary action under s 84(b)(ii)?

6. The question here is whether Leafe, the prescribed member taking the disciplinary action, had an obligation of procedural fairness, namely to give Turner notice of, and an opportunity to respond to, Scott’s and Jeremiah’s opinions that Turner’s use of force was not appropriate, including the rejection of Jordan’s opinion that it was appropriate, before taking the disciplinary action under s 84(b)(ii) of the Act.

   Discipline and Part IV of the Act

7. Part IV of the Act deals with discipline of members. Section 76 defines what constitutes a breach of discipline. There are various processes available under Part IV to deal with an alleged breach of discipline. The Act also makes provision for counselling and cautioning of members who commit breaches of discipline that are ‘of such minor nature as not to warrant action being taken under Part IV’ (s 14C).

8. A disciplinary process under Part IV need not necessarily, but commonly does, begin with a ‘directed interview’ within s 79A of the Act. Section 79A applies to a member who is required by the Commissioner or a prescribed member (‘disciplining member’)[14] to answer questions or provide information into an alleged or suspected breach of discipline by a member (s 79A(1)). It provides that a member is not excused from doing so on the ground that they may incriminate themselves (s 79A(2)), but the answer or information is not admissible as evidence against the member in any other proceedings against the member under the Act or in civil or criminal proceedings in a court (s 79A(3)).

9. The Act requires a disciplining member who believes, on reasonable grounds, that a member has committed a breach of discipline ‘and considers that the breach is serious enough to warrant action being taken under’ Part IV, to serve a notice under s 84F on the member (s 79). The notice must contain details of the action or omission constituting the breach of discipline and a statement that a written response is required from the member within seven days of receipt of the notice (s 84F(1)(a)). Service of the s 79 notice is a condition precedent to the commencement of an action in relation to a breach of discipline.[15]

10. If a member does not respond to the s 79 notice, a disciplining member may:

    (a)take no further action (s 81(2)(a));

    (b)counsel and caution the member (s 81(2)(b));

    (c)cause the member to be formally cautioned in writing (s 81(2)(c));

    (d)where they consider the breach of discipline is ‘of such a serious nature’ that the above actions are not appropriate, take the disciplinary action considered appropriate directly, if empowered to do so, or recommend that the Commissioner take it (s 81(2)(d)), noting that ultimately the available disciplinary action options are set out in s 84D; or

    (e)if none of the above action is considered appropriate, arrange for an investigation to be carried out to determine whether the member has in fact committed a breach of discipline (s 81(3)(a)).

11. If the member does respond to the s 79 notice, a disciplining member must take no further action if satisfied with the response (s 81(1)). If the member does respond and admits the breach of discipline, a disciplining member may do any of the things referred to in paragraph [37] above, except arrange for an investigation to be carried out (s 81(2), (3)). If the member does respond, but does not admit the breach, or provides an explanation not considered satisfactory, a disciplining member may arrange for an investigation to be carried out to determine whether the member has in fact committed a breach of discipline (s 81(3)(b), (c)).

12. Investigations pursuant to s 81(3) are to be completed within three months, unless a longer period is allowed (s 82(2), (3)), and may include a medical examination if the investigating member thinks fit (s 83(1)), in which case the member may also submit the report of a medical examination by a practitioner chosen by the member (s 83(2)).

13. Section 84 is in the following terms:

    84   Outcome of investigation

    Where, as a result of an investigation, the Commissioner or prescribed member:

    (a)   is satisfied that the member has not committed a breach of discipline, the Commissioner or prescribed member shall take no further action; or

    (b)   continues to believe, on the same or different reasonable grounds, that the member has committed a breach of discipline, the Commissioner or prescribed member may:

    (i)take no further action;

    (ii)counsel and caution the member;

    (iii)cause the member to be formally cautioned in writing; or

    (iv)charge the member with the breach of discipline alleged.

14. Where a member is charged with a breach of discipline, there must be a hearing into the charge by one or more prescribed members and notice containing details of the charge and the date, time and place of the hearing must be served on the member (s 84A, 84F(1)(b)). At the hearing, the member may be legally represented, the standard of proof is the civil standard, namely ‘on the balance of probabilities’, the hearing is to be conducted with as little formality and technicality as possible, ‘given the need to properly and equitably consider the matters’, the hearing members are not bound by the rules of evidence but ‘are bound by the rules of natural justice’, and the hearing must be electronically recorded (s 84B(1)). If the member is legally represented at a hearing, the hearing members may be assisted by a legal practitioner (s 84B(2)).

15. If, after a hearing, the hearing members are of the opinion that the member committed the breach of discipline, they may take the disciplinary action or impose such fine as they think fit as permitted by the Police Administration Regulations 1994 (NT) (‘Regulations’), or if not so permitted, they must report their opinion and recommended course to a disciplining member who is empowered to take the recommended course (s 84C). Upon receiving a report under s 84C, a disciplining member may take the disciplinary action set out in s 84D, which ranges from taking no further action (if the Regulations permit) to dismissing the member from the Police Force.

16. Also under Part IV, a member may be immediately dismissed where the Commissioner is of the opinion that the member has committed a breach of discipline and it is in the public interest that the member be immediately dismissed (s 78). The member must be served with a notice under s 79 and the Commissioner must take into account any written response of the member made after service of that notice (s 78).

    Was an interest affected?

17. After the investigation, Leafe took disciplinary action under s 84(b)(ii) of the Act, notifying Turner that he had been counselled and cautioned.

18. For procedural fairness to be presumed to apply to a statutory administrative decision, the decision must affect a person’s interests, which has been held to include a person’s business and personal reputation[16] and their livelihood and financial interests.[17]

19. It was not in dispute that the taking of disciplinary action under s 84(b)(ii) (and s 84(b)(iii)) would have an adverse effect on the member’s professional reputation and their potential livelihood and financial interests because such action is recorded on a member’s permanent record, and is taken into account in determining the action to be taken in respect of any future disciplinary matters, and in awarding future promotions and temporary roles acting in higher duties, particularly at the Sergeant level where competition for promotions and higher duties roles is substantial.

    The nature of the decision – outcome of an investigation

20. In Cornall v AB,[18] the Supreme Court of Victoria held that the requirements of procedural fairness did not apply to an investigation and a decision to refer a complaint against a solicitor to a hearing. That decision could only be made if the investigator was of the opinion that there appeared to have been misconduct or a standards breach. The Court emphasised the disciplinary process as a whole (including that procedural fairness would apply at the hearing stage) and distinguished this process from cases where the outcome of the investigation and recommendations made or opinions formed by the investigators were final in the process or led to immediate consequences of importance to the individual investigated.[19]

21. Applying the reasoning in Cornall v AB, if the outcome of the investigation is a charge of breach of discipline pursuant to s 84(b)(iv), it might be concluded that there is no obligation to provide an opportunity to respond to adverse material considered by the investigating member because the member will have the opportunity to respond to that adverse material at the s 84B hearing into the charge.

22. However, if the outcome of the investigation is disciplinary action under s 84(b)(ii), the outcome of the investigation is, subject to the right of review (as to which, see below), final and has an immediate and important consequence adverse to the member investigated. That circumstance points to the conclusion that there is an obligation to provide an opportunity to respond to adverse material considered by the investigating member.

23. It is also noteworthy that an investigation must occur where the member has responded to the s 79 notice, but the alleged breach of discipline is not admitted, or the disciplining member is not satisfied with the member’s explanation (s 81(3)(b), (c)). It is not a given that the investigation will seek out, obtain and take into account material additional to that which: (a) the member has already been informed of and has had the opportunity to respond to, as contained in the s 79 notice; and (b) the member has already themselves provided, namely in their directed interview and their response to the s 79 notice. An investigation could be comprised by a determination of whether the member has in fact committed the breach of discipline on the basis of that material alone. If so, procedural fairness would not require that the member be given the opportunity to respond to adverse material, because there would be no additional material. On the other hand, the investigation may seek out, obtain and take into account additional material in order to make the determination. In that circumstance, procedural fairness may require that the member be given the opportunity to respond to any such material which is adverse to the member. In other words, the s 81(3) investigation can contemplate both scenarios in which additional adverse material is obtained by the investigation and scenarios in which it is not. There is nothing about this investigation which is plainly inconsistent with the obligation to accord procedural fairness in appropriate circumstances.

    Scheme of the Act – serious and non-serious breaches of discipline

24. In making its decision refusing to admit the proposed additional material, the Board held that the Act sets out processes to deal with alleged breaches of discipline which are intended to be reasonable and proportionate to the seriousness of the allegation involved, such that obligations of procedural fairness beyond serving the s 79 notice do not apply to those breaches dealt with by the disciplinary action in s 84(b)(ii) or (iii).[20] Such breaches were said to be ‘low level disciplinary matters’ which could be dealt with by ‘low level disciplinary action’ without giving the member any further opportunity, beyond the member’s response to the s 79 notice, to respond to adverse material obtained in the investigation.[21] The Board observed that for ‘more serious matters’, action can only be by way of a formal charge with a hearing.[22]

25. It is true that the Act distinguishes between ‘serious’ breaches of discipline and other breaches of discipline. However, the Act does not, in its terms, contain or reflect the dichotomy to which the Board referred. First, the Act categorises all alleged breaches of discipline dealt with under Part IV as ‘serious’ because a s 79 notice is a precondition to any disciplinary action under Part IV and it requires the disciplining member to consider the alleged breach of discipline ‘serious enough to warrant action being taken under’ Part IV. This is in contrast to breaches of discipline of such minor nature they are dealt with pursuant to s 14C.

26. Secondly, the distinction in s 81(2) between disciplinary actions oftake no further action, counsel and caution, or formal caution in writing on the one hand (s 81(2)(b) and (c)), and disciplinary action for a breach of discipline ‘of such a serious nature’ that that action is not appropriate on the other hand (s 81(2)(d)), only applies where a member admits the breach of discipline or does not respond to the s 79 notice. There is no equivalent distinction where the member does not admit the breach and their explanation is not considered satisfactory.

27. Thirdly, whether or not an investigation occurs does not turn on whether the alleged breach of discipline is serious (s 81(3)) and nor, at least not expressly, does the outcome of an investigation (s 84).

28. Fourthly, it may be accepted that breaches of discipline for which the appropriate disciplinary action is to counsel and caution, or formally caution in writing, will commonly be of a less serious nature than breaches of discipline for which the appropriate disciplinary action is one of the other more punitive actions referred to in s 84D, which may be taken either where the breach is admitted or the member did not respond (s 81(2)) or following a charge and a hearing (ss 84C, 84D). However, the disciplinary actions of counsel and caution and formally caution are also available following a charge and a hearing (s 84D(a), (b)). As the parties submitted, there may be policy or other reasons why a disciplining member might proceed by way of a charge and a hearing in respect of an alleged breach of discipline of a less serious nature. Conversely, even if the appropriate penalty in all the circumstances of this case is to counsel and caution, the matter involved Turner pulling his firearm and pointing it at a suspect, which seems innately to qualify as ‘serious’.

29. It follows from the above that the Act does not create a scheme under which ‘serious’ breaches of discipline are dealt with by charge and hearing and ‘low level’ breaches of discipline are dealt with by ‘low level disciplinary action’. Even if that were so as a general observation of what happens in practice, it does not necessarily follow that there is no obligation to provide, before taking the ‘low level disciplinary action’, procedural fairness in the form of an opportunity to respond to adverse material obtained by an investigation and taken into account in determining whether or not the alleged breach of discipline is established and what the appropriate disciplinary action should be.

30. I find support for this view in the observations of Southwood J in Holmes v Commissioner of Police[23] (at [43]) where his Honour observed that the purpose of a s 79 notice is to give a member notice of an alleged breach of discipline as soon as the disciplining member believes on reasonable grounds the member has committed a breach of discipline which the member considers is serious enough to warrant action being taken under Part IV; secondly, it accords the member the earliest opportunity to consider their position, respond to the charge and to start gathering evidence in support of their case; thirdly, it enables allegations of an alleged breach of discipline to be resolved at the earliest opportunity and with maximum efficiency and economy by avoiding the need for an ‘action’ (that is, an investigation or a formal charge) if the member’s response is satisfactory or the member admits the breach. None of those purposes suggest that the s 79 notice is intended to be the only notice which a member will receive of adverse material they may wish to respond to prior to the taking of disciplinary action under s 84(b)(ii).

    The right of review

31. In reaching the view referred to in paragraph [51] above, the Board considered it significant that the member had a right of review from a decision to take disciplinary action under s 84(b)(ii) or (iii).[24]

32. While a statutory right of review of an administrative decision may bear on the existence of obligations of procedural fairness at the decision making stage,[25] it is now accepted that that is so because of the potential for the right of review (or appeal) to overcome any procedural unfairness in the initial decision, rather than that the right of review (or appeal) evidences the legislature’s intention to exclude procedural fairness at the initial stage.[26]

33. A member upon whom action is taken under s 84(b)(ii) of the Act may apply to have the matter reviewed by a prescribed member holding a rank higher than the prescribed member who took the action (s 84E(1), (2)). The review may be done in such manner as the reviewing member thinks fit, subject to the Regulations[27] and the directions, if any, made by the commanding officer to whom the application for review is made (s 84E(3)). The reviewing member may, in substitution for the action taken, take such action or impose such fine as he thinks fit and which could have been taken or imposed by the initial prescribed member (s 84E(3)).

1. Assuming without deciding that the review is a full merits review, the only additional material the member would have when applying for review is the reasons for decision, of the prescribed member who took the disciplinary action the subject of the review, if any were produced[28]. The review has no potential to overcome procedural fairness in the initial decision, unless reasons are provided and they identify the adverse material taken into account in the s 84(b)(ii) determination.

2. In such circumstances, the availability of the review does not support the proposition that there is no obligation to put adverse material obtained in an investigation to the member before taking action under s 84(b)(ii).

   Section 84(b) – belief on different reasonable grounds

3. Exercise of the powers in s 84(b) of the Act are preconditioned on the existence of a continuing belief ‘on the same or different reasonable grounds’ that the member has committed a breach of discipline. Counsel for Turner argued that the express capacity to exercise the powers on the basis of a belief held on different reasonable grounds is a legislative indication of the need for an obligation to give the member an opportunity to respond to adverse material obtained during the investigation.

4. By s 79, the member is to be served with a notice under s 84F when the disciplining member believes, on reasonable grounds, that the member has committed a breach of discipline. The s 84F notice must contain ‘details of the action or omission constituting the breach of discipline’. There is no express requirement for the member to be notified of the reasonable grounds for the belief. It is difficult, therefore, to see how the capacity to act on the basis of a continuing belief held on different reasonable grounds would imply that the member must be given the opportunity to respond to adverse material, even where that material constitutes or raises different grounds from those upon which the belief rested when the s 79 notice was served.

5. Counsel for Turner highlighted that this precondition operates across all of the options set out in s 84(b), including to charge the member with a breach of discipline. To my mind, this reduces not enhances the force of the argument because a member who is charged will have the opportunity at a hearing to respond to any adverse material put against them, so there is little need for providing the opportunity to do so before taking the action under s 84(b)(iv).

   Member could respond to adverse material if charged

6. Counsel for Turner argued that, if a member were charged with a breach of discipline, they would be entitled to respond to any adverse material put before the hearing into the charge and so, if a member is not charged, they should be accorded the same procedural rights before adverse disciplinary action is taken. The argument is that the availability of the opportunity to respond to adverse material should not turn on whether or not the member is charged with a breach of discipline.

7. A difficulty with this argument is the level of generality at which it operates. Acceding to the argument would require acceptance of the proposition that an opportunity to respond to any adverse material obtained in an investigation should always be provided to the member before the disciplinary action in s 84(b)(ii) or (iii) is taken because the member would get that opportunity if they were charged. Counsel for Turner did accept that procedural fairness would not require in every case the opportunity to respond to material obtained in an investigation before taking disciplinary action under s 84(b)(ii) or (iii). The proposition does not appear to distinguish between adverse material of which the member is already aware (because it was contained in the s 79 notice, the member’s directed interview or the member’s response to the s 79 notice) and additional adverse material of which the member is unaware. The proposition also sits uncomfortably with the principle set out in paragraph [31] above that what procedural fairness requires depends upon the totality of the circumstances.

   Medical examinations

8. The Act expressly requires that, where a member required by an investigating member to submit to a medical examination also submits to a medical examination by a practitioner of their choice and submits a report of the examination to the investigating member, the member must take the report into account (s 83(2)).

9. The provision expressly permits a member to obtain and put before the investigating member a medical report. It does not expressly provide that the medical report obtained by the investigating member must be given to the member or the member’s chosen medical practitioner. In its terms it is an express but limited additional right to be heard by providing a specific kind of material in the nature of expert opinion. It is limited because the member is not expressly permitted to have the investigating member’s medical report. It is additional because it is in addition to the member’s right to respond to the s 79 notice.

10. On the one hand, it might be argued that the provision demonstrates that where the Act intends to provide additional procedural fairness, it expressly says so, leading to the inference that if the Act is silent about additional procedural fairness the legislative intention is not to provide any. On the other hand, such an inference is contrary to the presumption about procedural fairness with which statutes are to be construed. The provision is of no assistance in resolving the present question.

    Procedural fairness is not excluded

11. The matters referred to above do not indicate the exclusion of procedural fairness in the form of an opportunity to respond to additional adverse material sought and obtained in an investigation pursuant to s 81(3) before taking disciplinary action under s 84(b)(ii). On the contrary, given the significant and potentially final consequences adverse to the interests of a member to which such disciplinary action can give rise, and the absence of the potential for the review to address such a lack of procedural fairness, the provisions in question should be construed as requiring, in an appropriate case, that a member be given the opportunity to respond to such material before the disciplinary action is taken.

12. Whether a particular case is an appropriate case such that a failure to provide the opportunity constitutes jurisdictional error depends on the totality of the circumstances.

    Was there a denial of procedural fairness at the s 84(b)(ii) stage?

13. Turner participated in the directed interview. He described his conduct and was asked questions about it and whether he considered drawing and aiming his firearm to be appropriate in the circumstances. The use of force report was referred to, but nothing was said about Jordan’s views expressed in it.

14. The s 79 notice served on Turner set out the particulars of his conduct (as a factual narrative), made allegations about how that conduct constituted disgraceful or improper conduct (ie that drawing and aiming a firearm at a person because they may present an unknown threat is not justified), made allegations about how the conduct was incompatible with the principles in the General Order about Operational Safety and Use of Force (ie that the conduct was not reasonable, necessary, proportionate or appropriate to the circumstances), made allegations about how the conduct was incompatible with the body worn video instructions manual (ie that there was no legal or operational reason not to activate his body worn video), and made allegations about how the conduct was in contravention of the General Order – Code of Conduct and Ethics (ie that the conduct was in breach of two identified paragraphs of that General Order).

15. The s 79 notice set out each of the possible options for action in ss 81(2) or 81(3) of the Act. The memo accompanying the s 79 notice stated, under the heading ‘Outcome Indication’, that if the allegations in the s 79 notice are true and are admitted and contrition is shown, the disciplining member would recommend that the conduct would be dealt with by ‘counsel and caution’. It also said that nothing in the notice diminishes the right of the disciplining member to make a determination outside the scope of the outcome indication, particularly if a later investigation or hearing phase indicates the matter is more serious than currently known.

16. At the time of making his response to the s 79 notice, I infer that Turner was aware that Jordan had reviewed his use of force and found it reasonable in and proportionate to the circumstances, but was unaware (because the internal memo had not at that stage been disclosed to him) that:

    (a)Leafe recognised that minds may differ on whether Turner’s use of force was appropriate in the circumstances, and raised the possibility that the Commander, PSC might concur with Jordan’s ‘thinking’; and

    (b)Leafe and the Commander, PSC rejected Jordan’s view in making the recommendation for the s 79 notice to be served.

17. Turner made his response to the s 79 notice. From that point, the options were: (a) if Leafe was satisfied with Turner’s response, take no further action (s 81(1)); or (b) because Turner did not admit the breach, or if Leafe was not satisfied with Turner’s explanation, arrange for an investigation (s 81(3)(b), (c)).

18. Shortly thereafter Turner was served a ‘notice of intention to investigate’, which indicated that Leafe was not satisfied with Turner’s responses and explanations and advised that a further investigation would be conducted to establish if, in fact, he had committed the alleged breaches of discipline.

19. Thereafter, the investigating member (through Jerimiah) sought and obtained the views of Scott. The investigation did not obtain any other material. It did not seek any further views from Jordan. Turner was not informed about the rejection of Jordan’s views or about Scott’s views and was not given the opportunity to respond. On the material known to Turner, which included his own views and Jordan’s views, but not Scott’s, the conclusion that Turner had committed the alleged breaches of discipline would not ‘obviously be open’.

20. The parties argued that Scott’s views were the ‘tipping point’ in the determination (ie, Leafe’s belief on reasonable grounds) that Turner had committed the alleged breaches of discipline. This was said to follow from the facts that, up to that point, Leafe’s views were equivocal (as evidenced by his observation in the memo to Commander, PSC that the Commander might concur with Jordan’s thinking) and Leafe had not been prepared to take the disciplinary action without Scott’s views. As to the first point, Leafe’s views that Turner’s use of force was not appropriate were unequivocally expressed in the memo, notwithstanding the sentence to the effect that the Commander, PSC might take a different view. The Commander, PSC did not take a different view, with the result that the s 79 notice was served. As to the second point, it was Jerimiah who sought Scott’s views, not Leafe. However, Leafe did not take the disciplinary action between 19 February 2020 (when the notice of investigation was dated) and 17 March 2020 (when Jeremiah informed Leafe of Scott’s views), but did so on 18 March 2020 (the day after being informed of Scott’s views). This chronology, and the fact that Scott’s views were the only additional material sought and obtained by the investigation, make it a reasonable inference that Scott’s views were the ‘tipping point’ in Leafe continuing to believe that Turner had committed the alleged breaches of discipline.

21. Unbeknown to Turner, Jordan’s views had been rejected and Scott’s views were sought and obtained, and they were considered by Jerimiah to be important confirmation of, in effect, the allegation in the s 79 notice that drawing and aiming a firearm at a person because they may present an unknown threat is not justified. It must be inferred that Leafe took Scott’s views into account in continuing to hold the belief that Turner had committed the breaches of discipline.

22. Turner was then served a ‘notice of determination’ informing him that Leafe continued to believe that he had committed the breaches of discipline and had determined to counsel and caution Turner pursuant to s 84(b)(ii). The effect of the determination was immediate and adverse to Turner’s interests.

23. The review did nothing to alleviate Turner’s difficulties because it simply reconsidered all of the material before Leafe, and Turner remained unaware that Jordan’s views had been rejected and Scott’s views had been sought, obtained and taken into account.

24. In all of the circumstances referred to in paragraphs [73] to [83] above, procedural fairness required that Turner be informed that Jordan’s views were rejected and that Scott’s views had been sought and obtained, and given a reasonable opportunity to respond to those matters.

25. If given that opportunity, Turner would have responded with the proposed additional material he sought leave to put before the Board, namely the Bedwell report and the Jordan declaration. Bedwell and Jordan are members of long standing with relevant experience (particularly Bedwell, who has recent qualifications and extensive experience in training police in defensive tactics and use of firearms) who clearly and rationally justified their opinions that, in the circumstances faced by Turner, his use of force was justified and accorded with the relevant General Orders. Had Leafe taken that material into account, there is the possibility that he would have determined that Turner did not commit the alleged breaches of discipline. Consequently, there was a material breach of the requirements of procedural fairness and a jurisdictional error of the kind referred to in paragraph [28] above.

    Second issue: Was the Board’s refusal to receive the proposed additional material infected by jurisdictional error?

    The terms of s 95

26. Section 95 of the Act provides as follows:

    95   Procedural matters

    (1)   This section applies only to and in relation to appeals under section 94.

    (2)   Subject to subsection (3), an appeal shall be by way of a review of the material taken into account by the Commissioner or prescribed member against whose direction, action, intention, decision or opinion the appeal is lodged.

    (3)   Where a party to an appeal considers that there was additional material that was not available to the Commissioner or prescribed member before he took the action or formed the intention, the party may, in the prescribed manner and form, apply to the Appeal Board to admit that material and, in its discretion, to deal with the appeal as a hearing de novo.

    (4)   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.

    (5)   The decision of the Appeal Board on an application under subsection (3) is capable of being reviewed by a court.

    (6) The procedure for an appeal or a preliminary hearing is, subject to this section and the Regulations, within the discretion of the Appeal Board.

    (7)   An appeal under this Part shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Part and a proper consideration of the matter permit.

    (8)   If an Appeal Board thinks fit, an appeal may be determined without an oral hearing.

    (9)   Where an Appeal Board conducts an appeal by holding an oral hearing, it shall give reasonable notice to the appellant, the Commissioner and any other person who is joined as a party to the appeal of the date, time and place at which the oral hearing is to occur.

    (10) An appeal shall not be heard in public unless either party to the appeal so requests and the Appeal Board agrees.

    (11) Where an Appeal Board conducts an appeal by holding an oral hearing, each party is entitled to appear and to tender a written summary of the submissions made at the oral hearing.

    (12) Where an Appeal Board conducts an appeal without holding an oral hearing, each party is entitled to tender written submissions.

    (13) An Appeal Board, when conducting an appeal as a hearing de novo, may admit evidence at the appeal notwithstanding that the evidence would not be admissible in a court.

    (14) An Appeal Board, when conducting an appeal as a hearing de novo, may:

    (a)summon a person whose evidence appears to be material to the appeal; and

    (b)require a person appearing before it to give evidence on oath; and

    (c)require a person to produce documents or records in the person’s possession or under the person’s control which appear to be material to the appeal.

    (15) A person who, without reasonable excuse (and to whom, where the person is not a member, payment or tender of reasonable expenses has been made), neglects or fails to attend in obedience to a summons under subsection (14) or to take an oath, to answer relevant questions or to produce relevant documents when required to do so under that subsection, is guilty of an offence.

    Maximum penalty:     40 penalty units.

    (16) An Appeal Board may:

    (a)strike out an appeal that it considers vexatious or frivolous; and

    (b)in any case, award costs both in respect of a preliminary hearing and the appeal.

    (17) An Appeal Board shall give its decisions in writing, shall cause copies of decisions to be served on each of the parties and shall, if a party within 14 days after the copy of the relevant decision is served on him so requests, provide the party with written reasons for the decision.

    Criteria for making an application for the Board to receive additional information

27. The default position is that an appeal is by way of a review of the material taken into account by the disciplining member (s 95(2)).

28. In its terms, s 95(3) sets out criteria for the making of an application for the Board to receive additional information. The criteria are that a party to an appeal considers ‘that there was additional material that was not available to’ the disciplining member ‘before’ they took the action appealed against.

29. The first sub-issue raised by s 95(3) is whether the criteria extends to material that exists at the time an application is made which did not exist at the time the disciplining member took the action appealed against. In the present case, the proposed additional material was not in existence at the time Leafe took the disciplinary action under s 84(b)(ii). It was not in existence because Turner had not sought and obtained it, being unaware that Jordan’s views had been disregarded and that Scott’s views had been obtained.

30. The language of s 95(3) uses the present tense to refer to the party’s state of mind (‘a party considers’), and uses the past tense to refer to the material and to its availability before the action was taken (‘was material that was not available’). At first blush, the requirement that there ‘was material’ might be read as requiring that the material was in existence before the action was taken. There is, however, an alternative constructional choice, namely that the words ‘was material’ can be read as referring to the situation existing at any time up to the time the application is made, while the words ‘was not available’ refer to the situation existing up to the time the action was taken. The former construction would unduly narrow the operation of s 95(3), excluding receipt of material produced by a party to respond to or address adverse material taken into account by the disciplining member. There is no warrant in s 95 for excluding such material.

31. Applying the terms of s 95(3) so construed, an application to the Board to receive additional material may be made by a party where the party considers that the material in question was not available before the disciplinary action was taken.

    How is the Board to decide whether to admit additional material?

32. The second sub-issue raised by s 95(3) is the matters which guide the exercise of the Board’s decision to admit or refuse to admit additional material proposed by a party. No criteria or relevant considerations for the Board’s decision are expressed in s 95(3).

1. A matter which may determine, or at least guide, the construction of the power to admit additional material is the nature of the appeal, and in particular whether it is an appeal by way of rehearing or an appeal de novo.[29] The critical difference between an appeal by way of rehearing and an appeal de novo is that, in an appeal by way of rehearing, the powers of the appeal body are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the body on the appeal, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in an appeal de novo, the powers of the appeal body can be exercised regardless of error.[30] Further, on an appeal by way of rehearing, the appeal body can substitute its own decision based on the facts and the law as they stand at the time of the appeal (in contrast to an appeal in the strict sense).[31]

2. Section 95(2) adopts the term ‘review’ rather than ‘rehearing’. A sub-issue arises as to the nature of the ‘review’ under s 95(2). Sections 94 and 95 both describe the process as an ‘appeal’, and s 94(6)(b) provides that the Board may allow the appeal in whole or part and direct the relevant member to take such action under the relevant provisions of the Act as the Board ‘considers necessary’. That language and the option of converting the appeal to an appeal de novo in s 95(3) all indicate that the appeal is, subject to s 95(3), an appeal by way of rehearing (and not an appeal in the strict sense).

3. A further sub-issue arises as to whether s 93(5) necessarily links the admission of additional material and the dealing with the hearing as a hearing de novo, or whether there could be a hearing de novo even if the Board refuses to admit additional material or a hearing by way of rehearing (‘review’) even if the Board admits additional material. By its emailed Reasons, the Board was of the view that, having refused to admit the proposed additional material, it was obliged to conduct the appeal in accordance with s 95(2) and the hearing could not proceed as a hearing de novo.

4. Section 95(3) permits an application to the Board ‘to admit that material and, in its discretion, to deal with the appeal as a hearing de novo’. A construction which yields a necessary link between the two is supported by the use of the word ‘and’ as well as the requirement for an application to admit additional material.

5. The opposite construction is supported by the words ‘in its discretion’. Those words, located after the word ‘and’, appear to indicate a separate discretionary power which is not necessarily tied to the admission of the additional material. This construction is supported by the terms of s 95(4), which provide that the Board may conduct a preliminary hearing for the ‘purpose’ (singular) of determining whether to admit the material ‘or’ declare the appeal a hearing de novo. Section 95(4) suggests the Board may conduct a preliminary hearing for one, or the other, of those purposes. Because the singular generally includes the plural,[32] s 95(4) would also permit the Board to conduct a preliminary hearing for both purposes.

6. The capacity to receive further evidence on an appeal and, as must follow, the receipt of further evidence on an appeal, does not render an appeal an appeal de novo.[33]

7. In my view, it follows that, on an application made under s 95(3), the Board may:

   (a)admit additional material and either:

   (i)   declare the appeal a hearing de novo, with the consequence 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 a rehearing, with the consequence that the appellant must show error in the taking of the disciplinary action appealed from by reference to the evidence before the disciplining member 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 disciplinary action appealed from by reference to the evidence before the disciplining member.

8. It is not necessary for the purposes of determining this proceeding to decide whether it necessarily follows from a Board’s refusal to admit additional material the subject of the s 95(3) application that the Board cannot declare the appeal to be by way of a hearing de novo. It is difficult to envisage a situation in which the Board would make such a declaration having refused to admit the additional material because a hearing de novo naturally contemplates, as part of hearing the matter afresh, the receipt of additional material. However, I do not intend to rule out a case that cannot presently be envisaged in which that might occur.

9. In the context of a rehearing, the power to receive additional material is conferred for the purpose of assisting the Court to determine whether there was some legal, factual or discretionary error that caused the decision to be in error.[34] The power may be exercised to admit material to show that the decision maker failed to allow the appellant to appear, or be represented, or give relevant evidence or make relevant submissions, or otherwise denying the appellant procedural fairness.[35] These are not, however, the only types of additional material that can be admitted. No such constraint was identified in McLaren v Legal Practitioners Disciplinary Tribunal,[36] a decision involving: (i) the operation of s 22(4) of the Supreme Court Act 1979 (NT), which provided that an appeal heard by the Full Court from the Legal Practitioners Disciplinary Tribunal is to be by way of rehearing, and the Full Court has power to receive further evidence in a manner the Full Court directs; and (ii) the operation of Supreme Court Rule 83.20(2), which provided that where an appeal is by way of rehearing, either party may call new evidence at the hearing. In relation to the Rule, Martin CJ held (at [79]) (Riley J agreeing) that leave for further evidence to be admitted is required and that 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. His Honour added (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. In the same case, Mildren J drew (at [217]) various propositions about the power in s 22(4) from the decision of the High Court in CDJ v VAJ.[37] Those propositions included that the power exists to serve the interests of justice, that further evidence will not be admitted if it will not affect the result, and in essence that the effect of the receipt of the evidence upon the hearing of the appeal (such as whether the further evidence is in dispute and whether and the extent to which it will necessitate or extend a hearing) is a matter to be taken into account. Mildren J’s final proposition was that no invariable rule should be laid down or can be made concerning the failure to call the proposed further evidence in the Tribunal below.

10. In addition to the above general considerations, the inclusion in s 95(3) of the express reference to the material not being available to the disciplining member before the action appealed from was taken, albeit as the criteria for the making of the application, is highly suggestive that it is also a matter which the Board must consider in deciding whether to admit the additional material. Indeed, it would be absurd if that was a criteria for the making of the application, but not a matter for the Board to consider when deciding the application.

    The Board’s decision

11. In refusing to admit the proposed additional material, the Board took the view that, in order to succeed in the s 95(3) application, Turner needed to demonstrate that the proposed additional material was not available to Leafe, which required an assessment of whether it is ‘relevant and necessary to the decision that the Board must make and, therefore, …should have been available to’ Leafe.[38] The Board concluded the proposed additional material was not ‘relevant and necessary to the investigation to be conducted by the’ disciplining member,[39] or the decision the Board must make under s 94(6).[40]

12. The Board held that Jordan’s ‘operational assessment’ of Turner’s use of force, which was based solely on the information provided by Turner to Jordan within the ‘administrative reporting process’ was ‘irrelevant’ to Leafe’s ‘separate examination of’ Turner’s conduct ‘as the subject of an allegation of a breach of discipline’.[41] The Board also held that Jordan’s opinion would not assist the Board because he was ‘not sufficiently independent of the facts’ to qualify as an independent expert, having expressed an initial view in the use of force report and being the subject of critical comments in the investigation process including recommendations that he be provided remedial advice.[42]

13. The Board held that it was difficult to see any difference between Bedwell’s experience and that of ‘an investigating member investigating a disciplinary matter involving’ use of force, and that a disciplining member conducting such an investigation is ‘able to make that assessment based on their own judgment [sic], experience and knowledge of the relevant policy without recourse to an independent expert opinion’.[43]

14. For these reasons, the Board held that the proposed additional material was not ‘relevant and necessary to the investigation’.[44]

15. The Board also rejected Turner’s submission that he was denied natural justice because he was not informed that the investigating member was seeking additional expert evidence from Scott regarding whether Turner’s conduct was in breach of the use of force policy, concluding that the submission ‘overstates the nature of what the investigating member did’, which was simply to make an enquiry to clarify whether the investigating member’s understanding of the use of force policy remained current.[45] The Board held that not giving Turner the opportunity to obtain and submit his own expert report was not a denial of procedural fairness.[46]

16. Consequently, the Board held that it was:[47]

    …not persuaded that the investigating member did not have material available to him that should have been available to him, because he failed to afford an opportunity for expert evidence sourced by [Turner] to be presented to him.

    Was the Board’s decision attended by jurisdictional error?

17. The Board identified the test for admission of additional material as, in essence, whether the material:

    (a)was not available to the investigating member; and

    (b)should have been available to the investigating member because it was relevant and necessary to the investigation or the decision the Board must make.

18. The limb of the test set out in paragraph (a) above is consistent with the construction of s 95(3) referred to in paragraph [102] above.

19. The limb of the test set out in paragraph (b) above is not found in the language of s 95(3), has no counterpart in the authorities relating to the admission of further evidence on appeals (by way of rehearing) and is unduly restrictive of the operation of the provision. Consequently, for those and the reasons which follow, the Board has misconstrued or misunderstood its duty and failed to apply itself to the question which s 95(3) prescribes and has committed jurisdictional error of the kind referred to in paragraph [26] above.

20. It may be accepted that the additional material must be ‘relevant’ to the matters in issue on the appeal against the disciplinary action, where ‘relevant’ describes material that could rationally affect (directly or indirectly) the assessment of the factual or other conclusions to be drawn in resolution of the appeal.

21. However, the proposition that the additional material should have been available because it was necessary, either to the investigation or the Board’s decision is untenable. Whether material ‘should have been available’ imports a temporal requirement which some relevant evidence simply could not meet, such as evidence about a denial of procedural fairness in the investigation or the taking of the disciplinary action, or evidence about an event which occurs after the disciplinary action is taken which demonstrates error in the taking of the disciplinary action. How can it be said of relevant evidence which did not then exist that it ‘should have been available’? If some relevant evidence simply was not available to the disciplining member, this test would exclude it from being admitted.

22. In relation to evidence or information, it is difficult to comprehend a quality or character of ‘necessary’ to an investigation or a decision on an appeal. The ordinary meaning of the word is ‘required’ or ‘essential’. Applying that meaning, the test would be that, without the additional material, the investigation could not, or the Board’s decision on the appeal cannot, take place or exist. In a practical sense, it would be difficult to apply such a test – what material’s absence would prevent an investigation or a decision from taking place? No such threshold is applied in relation to the receipt of further evidence on an appeal by way of rehearing, which ultimately turns on whether to do so would be in the interests of justice. The ‘necessary’ requirement clearly imposes a very high threshold for the admission of additional material, and gives the provision a very narrow scope. There is no warrant in the other provisions of Part IV of the Act, or the subject matter of s 95(3) or Part IV more generally, to impose such a narrow construction.

23. As held earlier, Turner was denied the opportunity to respond to material adverse to his interests taken into account in taking the disciplinary action. His application for the admission of the proposed additional material under s 95(3) was directed to redressing that denial of procedural fairness. As concluded in paragraph [85] above, it was material giving Turner the possibility of a successful outcome. It was not until the appeal was instituted that Turner became aware that the material adverse to his interests was taken into account. The proposed additional material did not exist and had not then been sought because Turner was unaware of the need to respond to the adverse material. Consequently, the proposed adverse material was not available before the disciplinary action was taken.

24. While the impact on the hearing of receiving the proposed additional material was a relevant matter to be taken into account, it did not (contrary to the Board’s view) necessarily follow that the hearing would have to proceed as a hearing de novo. No express consideration was given by the Board to how the hearing might otherwise be affected by the admission of the proposed additional material.

25. Given these matters, it is in the interests of justice that additional material, which would overcome such a denial of procedural fairness in the taking of the disciplinary action appealed from, be admitted on the appeal. Such material therefore constitutes, at least prima facie, material which s 95(3) of the Act requires the Board to admit on the appeal. The Board’s reasoning as set out in paragraphs [107] to [108] above demonstrates that the Board has misconstrued or misunderstood its duty and failed to apply itself to the question which s 95(3) prescribes, resulting in the exclusion of the proposed adverse material. The Board’s decision to refuse to admit the proposed additional material was infected by jurisdictional error of the kind referred to in paragraph [26] above.

26. In regards to the proposed additional material not being available before the disciplinary action was taken, counsel for Turner also pointed to Turner having been ordered, in the directed interview, not to discuss the matters the subject of the interview with anyone other than someone with whom communications would be subject to legal professional privilege. Counsel for Turner argued that this order prevented him from making the proposed additional material available. Client legal privilege (previously called ‘legal professional privilege’) commonly extends to communications with experts commissioned to generate a report for legal proceedings[48] and communications with lay witnesses from whom a statement is or may be sought for legal proceedings.[49] The privilege generally extends beyond judicial and quasi-judicial proceedings.[50] Hence, it seems that Turner could have sought preparation of the proposed additional material, despite the order in the directed interview. That is, however, of no consequence when he was unaware of the need for the proposed additional material to respond to the adverse material being taken into account in the taking of the disciplinary action.

27. Counsel for the Commissioner argued that the Board’s decision comprised a jurisdictional error because the Board failed to take into account a relevant consideration, namely that there was a denial of procedural fairness before the disciplinary action was taken. It is unnecessary to grapple with the issue of statutory construction which identifies what matters constitute relevant considerations which the Board is bound to take into account for its decision under s 95(3) to be valid[51] because of the conclusion reached in paragraph [117] above (that the Board’s decision was in error for misconstruing or misunderstanding its duty and the question posed by s 95(3)).

28. Counsel for the Commissioner also argued that the Board had made certain factual errors, namely its finding that Jeremiah had not sought expert opinion from Scott and its finding that Leafe was able to determine whether Turner had committed the alleged breaches of discipline without the assistance of expert opinion, and that, by so concluding, the Board had (respectively) failed to take into account a relevant consideration and had taken into account an irrelevant consideration. Both parties took issue with the Board’s finding that Jordan’s independence denied his utility as an expert. These submissions were not supported by reference to the Act’s subject matter, scope and purpose or the nature of the Board’s power in order to establish that these considerations were ones the Board was bound to take, or prohibited from taking, into account.[52] Without that analysis, the submissions reduce to an attack on the merits of the decision, which is not the proper scope of judicial review.

    Third issue: Was the failure to consider the content of the proposed additional material a jurisdictional error?

29. The Board convened a preliminary hearing to determine Turner’s application for admission of the proposed additional material under s 95(3), and an application by the Commissioner for the admission of a statutory declaration by Scott (‘Scott declaration’) under s 95(3), which was essentially responsive to the Bedwell report.

30. The Board took the view that it could not or should not consider the content of the proposed additional material and the Scott declaration unless and until it had acceded to the applications and admitted the additional material pursuant to s 95(3).[53] The Board’s position appeared to be that an applicant had to establish, as a ‘threshold question’, that the requirements of s 95(3) had been satisfied and the material should be admitted before the Board could consider its content.

31. In McLaren v Legal Practitioners Disciplinary Tribunal,[54] Martin CJ (Riley J agreeing) held (at [81]) that, despite any explanation for the failure to put the proposed further evidence to the Tribunal below being a strong reason to refuse the application, it ‘remains necessary to consider the nature and content of the proposed evidence and to balance the competing interests of the parties in determining which course best advances the interests of justice’. It is common practice, if not universal, to place the proposed further evidence before the court in the making of the application that it be admitted, and for the court to consider the further evidence in determining the application.[55]

1. It is difficult to conceive of how the Board would properly determine an application to admit additional material on appeal without itself considering the nature and content of the material. Where the material comprises a statutory declaration and a report from members said by a party to have relevant knowledge and/or expertise about the issue the subject of the appeal, namely the consistency of Turner’s actions with the General Orders, it seems bizarre that the Board would refuse to read the material or refuse to turn to it when counsel for the party seeking to have it admitted wished to refer to it in making the application. There was no reason of confidence or potential prejudice which led the Board to refuse to refer to the material.

2. Counsel for Turner argued that the Board’s failure to read the proposed additional material or to turn to it during the hearing of the s 95(3) application was either a denial of the opportunity to be heard comprising procedural fairness, or was essentially to misconceive its duty or fail to apply itself to the question which s 95(3) prescribes. It may well be that such a failure would constitute that kind of jurisdictional error.

3. Counsel for the Commissioner argued, and Turner’s originating motion alleged, that the Board’s failure to read the proposed additional material or turn to it comprised a failure to take into account a relevant consideration, namely the content of the material. Again, to make good this argument, the Commissioner would need to demonstrate that, as a matter of statutory construction, the direct content of the material (as opposed to, say, counsel’s summary of it) constitutes a relevant consideration which the Board is bound by the Act to take into account for its decision under s 95(3) to be valid.[56]

4. Here, the error could have had no material effect because of the Board’s error in understanding and applying the test in s 95(3) for the admission of additional material (the second issue considered above). Even if the Board had read the material or turned to it during the hearing, on the Board’s erroneous test, doing so would not have made any difference in the outcome. Given the conclusion in relation to the second issue, it is not necessary to address these arguments further.

   Fourth issue: Was the failure to permit cross-examination of Scott and Jeremiah infected by jurisdictional error?

5. The Board refused to give leave for Turner to cross-examine Scott and Jeremiah because it was of the view that, in the absence of admitting additional material, the hearing of the appeal would not be by way of a hearing de novo with the consequence that the Board had no power to summon witnesses in order to make them available for cross-examination.

6. There is no challenge to the Board’s decision that the appeal proceed as a ‘review’ rather than a hearing de novo. As set out in paragraph [101] above, that form of hearing is a rehearing and is available even if additional material is admitted.

   Power to permit cross-examination on an appeal by way of rehearing

7. The first sub-issue then is whether the Board had power to permit a party to an appeal to cross-examine witnesses when the appeal is not proceeding as a hearing de novo.

8. The Board declared that the hearing would be an ‘oral hearing’. Section 95(9) and (11) indicate that appeals may, in the Board’s discretion, proceed that way. Counsel for Turner argued that the ordinary meaning of the words ‘oral hearing’ encompasses the calling of witnesses and their cross-examination, that this ordinary meaning is not excluded by s 95(11), that if the parties wish to call a witness or have a witness made available for cross-examination who is a member, a member of the Board can, by dint of rank, order that witness to appear and they are obliged to do so or they will commit a breach of discipline under s 76(d) of the Act, and that such witnesses have the protections in s 101(3).

9. There is no definition of the term ‘oral hearing’ in the Act. The term is not found in various legal dictionaries.[57] The argument about the ordinary meaning of the term was founded on dictionary definitions of the words ‘oral’ and ‘hearing’, neither of which actually refer to cross-examination of witnesses.

10. Section 95(11) expressly identifies what the parties are ‘entitled’ to do at an oral hearing under the Act, namely appear and tender a written summary of submissions made at the oral hearing. It is implicit that the party is entitled to make oral submissions at the hearing. Counsel for Turner argued that this provision did not ‘fetter’ the Board’s power to permit the parties to call and cross-examine witnesses. So much may be accepted. Section 95(11) must be construed to provide the minimum scope of an oral hearing rather than the maximum because it operates in respect of both appeals by way of rehearing and hearings de novo. To hold otherwise would be to imply from s 95(11) that an oral hearing could never include the capacity to cross-examine witnesses, a proposition which simply could not be accepted.

11. In Rose v Bridges,[58] Finn J held (at 387) that a right to cross-examine a witness could not be asserted to be a possible requirement of procedural fairness where the inquiry or tribunal in question does not possess the power to require the giving of oral evidence and the submission of witnesses to cross-examination. This reasoning has been followed in Simjanoski v La Trobe University[59] and Commissioner of Police Service v Parole Board of Queensland.[60]

12. The only express power to compel witnesses to attend an appeal under s 95 exists in relation to appeals conducted as hearings de novo (s 95(14)(a)). In Rose v Bridges, Finn J held (at 388) that the common law did not confer such power on an inquiry officer conducting an investigation into a breach of discipline under the Public Service Act 1922 (Cth). His Honour cited Maclean v Workers Union[61] (at 620-621), which held that the proposition operates in relation to ‘domestic tribunals’, ie professional bodies established by statute to act in a quasi-judicial capacity, and was founded in large part on the fact that such bodies are not bound by the rules of evidence. On that reasoning, the proposition would equally apply to the Board conducting an appeal under s 95, that is, the only power to compel witnesses generally (as to members, see below) to attend a hearing is statutory and exists only in relation to hearings de novo.

13. In Rose v Bridges, Finn J held (at 388) that, notwithstanding a lack of power to compel cross-examination, it would be open to an inquiry officer to arrange cross-examination through agreement with the witnesses concerned. A conclusion to the same effect was reached in Commissioner of Police Service v Parole Board of Queensland[62] (at [17]-[26]) in relation to hearings into applications for parole under the Corrective Services Act 2006 (Qld). In that case, the Parole Board had the express power to require a person to attend a meeting to give the Parole Board relevant information or produce a document. Douglas J held that that power, coupled with the power conferred by s 27 of the Acts Interpretation Act 1954 (Qld) to a person or body authorised by law to conduct a hearing for the purpose of the determination of any matter to receive evidence and examine witnesses and administer oaths to persons lawfully called before the person or body, gave the Parole Board the power to direct the cross-examination of a person required to attend a meeting.

14. Section 70 of the Interpretation Act 1978 (NT) provides that a court, judge, justice of the peace, officer, commissioner, arbitrator or other person or body authorised by law to hear and determine any matter, has authority to receive evidence and examine on oath any witness appearing before the court, person or body. This provision appears to be broader than the Queensland provision since it refers to ‘any witness appearing’, rather than persons ‘lawfully called before the person or body’.

15. Subject to the appearance of an intention to the contrary,[63] s 70 would confer on the Board the power to receive evidence and examine on oath any person appearing before it as a witness, such as a person who agreed to appear as a witness in an appeal proceeding by way of a rehearing. There does not appear to be any provision in the Act which indicates a contrary intention. Indeed, s 101(3) of the Act provides support for this conclusion because it provides that a person summoned to attend ‘or a person appearing before an Appeal Board as a witness’ has the same protection and is subject to the same liabilities as a witness in proceedings in the Supreme Court. This provision expressly contemplates both persons summoned and persons appearing as witnesses. It is implicit that the latter could appear without being summoned.

16. If the Board can arrange for cross-examination of witnesses with their agreement, and would have power to receive evidence from them and examine them on oath, then it would seem to follow that the Board could, in some circumstances, order a member who the Board wishes to hear from as a witness, to attend an appeal hearing to give evidence and be cross-examined. The circumstances would be where one of the Board’s members is a Police member having authority over the intended witness, and that Board member gives the witness member an order to attend, give evidence and be cross-examined. Failure to comply with such an order would be a breach of discipline (s 76(d)). In those circumstances, the Board would have the power to receive evidence from the member witness and examine the member witness on oath, including through cross-examination by a party to the appeal.

17. It follows that the Board’s conclusion that it could not accede to Turner’s application to cross-examine Scott and Jeremiah because it lacked the power to summon witnesses was a misconstruction or misunderstanding of its statutory power and duty and a failure to apply itself to the question which s 95(3) prescribes. The Board’s decision was infected with jurisdictional error of the kind referred to in paragraph [26] above.

    Did procedural fairness oblige the Board to allow Turner to cross-examine Jeremiah?

18. Turner sought to cross-examine Jeremiah at the appeal hearing to question him about his conduct of the investigation and, in particular:

    (a)why he did not review Turner’s training records;

    (b)why he did not obtain a statement from Jordan;

    (c)why the information he sought from Scott was confined to confirming Turner’s conduct was ‘outside current norms and teachings’ and gauging how serious it was viewed, rather than a full expert opinion as to whether the conduct was consistent with the ‘entire training package’; and

    (d)why he did not investigate whether the bottles and other projectiles thrown from the vehicle were thrown at police.

19. The purpose of this evidence was said to be to demonstrate that the investigation was ‘shoddy’ and inadequate. Presumably, that finding would ground a submission that the finding that Turner committed the alleged breaches of discipline was in error and the disciplinary action should not have been taken. Without entering into the merits of the submission, cross-examination of Jeremiah is not a necessary pre-requisite to the making of the finding or the submission in support of it. The mere fact of the absence of the investigative steps referred to could ground the finding and the submission, and the investigating member’s reasons for the things he did or did not do in the investigation are unlikely to have significant additional weight. While procedural fairness might require that Turner be given the opportunity to seek the finding and make the submission, it does not require that Turner be permitted to cross-examine Jeremiah in order to do so. The Board’s decision to refuse Turner’s application to cross-examine Jeremiah did not deny Turner procedural fairness.

    Did procedural fairness oblige the Board to allow Turner to cross-examine Scott?

20. Turner sought to cross-examine Scott at the appeal hearing to ‘test’ the precise content and bases for his opinion as relayed to Jeremiah by phone, and the foundations for Scott’s expertise to give the opinion. Consistently with the conclusion reached above that Turner was denied procedural fairness by not being given the opportunity to respond to Scott’s opinion, in the circumstances of this case, the refusal to permit cross-examination (without exploring whether Scott would agree to be cross-examined or whether Scott could be ordered to attend for cross-examination) constituted a denial of procedural fairness. That is so for the reasons identified above in concluding that there was a breach of procedural fairness in taking the disciplinary action appealed from, with the addition of the fact that it is unclear from Jeremiah’s email setting out the substance of Scott’s opinion: (a) the precise content and scope of Scott’s opinion; (b) what the bases for that opinion were; and (c) Scott’s expertise which would make his opinion relevant and reliable. Permitting cross-examination of Scott would allow these matters to be elicited and addressed by Turner. The Board’s decision was infected by jurisdictional error of the kind referred to in paragraph [28] above.

21. At the preliminary hearing before the Board, the Commissioner sought to address these absences by also making a s 95(3) application for the Board to admit a report prepared by Scott. That application was only pressed if Turner’s application to admit the Jordan declaration and the Bedwell report were allowed. If Scott’s report had been admitted, this may have provided Turner with an adequate and sufficient basis to respond, by submissions, to Scott’s opinion, thereby alleviating the need for cross-examination. Scott’s report was not admitted, so it can have no bearing on the conclusion reached at paragraph [143] above.

    Disposition and relief

22. Consequent upon the above conclusions, the following orders are appropriate.

23. In regards to the Board’s decision to refuse to admit the Jordan declaration and the Bedwell report:

    (a)declarations that the Board’s decision was infected with jurisdictional error and also denied Turner procedural fairness;

    (b)an order in the nature of certiorari quashing the decision; and

    (c)an order in the nature of mandamus compelling the Board to decide Turner’s application to admit that material according to law.

24. In regards to the Board’s decision to refuse to allow Turner to cross-examine Scott and Jeremiah:

    (a)declarations that the Board’s decision was infected with jurisdictional error and also, in regards to Scott (but not Jeremiah), denied Turner procedural fairness;

    (b)an order in the nature of certiorari quashing the decision; and

    (c)an order in the nature of mandamus compelling the Board to decide Turner’s application to cross-examine Scott according to law.

25. An order in the nature of mandamus compelling the Board to decide Turner’s application to cross-examine Jeremiah is unnecessary because procedural fairness did not oblige the Board to allow that application so the law would not compel a different decision and the remedy has no utility and should be refused in the Court’s discretion.

26. Turner sought an order in the nature of mandamus compelling the Board to require, pursuant to s 79A of the Act, Scott and Jeremiah to attend the hearing and answer questions put in cross-examination. Section 79A is not the source of the power to require a member to answer questions or provide information; it simply acknowledges that such power exists and addresses the common law right against self-incrimination. More importantly, mandamus commands the performance of a duty, but not its performance in a particular way if the respondent has a discretion as to how it should be performed.[64] The Board has a duty to decide the application and a discretion as to whether to seek Scott’s attendance by agreement or by order. Consequently, an order in this form is not appropriate.

27. I will hear the parties as to the appropriate form of orders and costs.

    -------------------------

[1] The term ‘prescribed member’ is defined to mean a member holding the prescribed rank (s 3(1)). Regulation 18 of the Police Administration Regulations 1994 provides that, for the purposes of Part IV of the Act, a prescribed member is a member holding the rank of: (a) Senior Sergeant; (b) Superintendent; (c) Commander; (d) Assistant Commissioner; or (e) Deputy Commissioner.

[2]      Turner admitted that breach and it has no further relevance in these proceedings.

[3] Plaintiff’s Originating Motion, [7], [9]-[11].

[4]      Plaintiff’s Originating Motion, [8].

[5] Plaintiff’s Originating Motion, [1], [3]-[6].

[6]      Plaintiff’s Originating Motion, [2].

[7] (2018) 264 CLR 123.

[8]      Craig v South Australia (1995) 184 CLR 163 at 177-178 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208-209 per Gleeson CJ, Gaudron and Hayne; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [74] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[9] (2010) 241 CLR 252.

[10] (2016) 259 CLR 180.

[11] (2011) 241 CLR 594.

[12] (2015) 256 CLR 326.

[13]     See also Hossain v Minister for Border Protection (2018) 264 CLR 123 at [29]-[30] per Kiefel CJ, Gageler and Keane JJ.

[14] For ease of reference, these reasons will adopt the phrase ‘disciplining member’ to refer to the phrase ‘the Commissioner or a prescribed member’ as appears in the Act.

[15]    See Holmes v Commissioner of Police (2011) 30 NTLR 195 at [32], [38] per Southwood J.

[16]    See, for example, Annetts v McCann (1990) 170 CLR 596 at 608-609 per Brennan J; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408.

[17]    See, for example, FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550 at 618-619 per Brennan J.

[18] [1995] 1 VR 372.

[19]    See also AYHT v Medical Board of South Australia (2000) 77 SASR 148 at 152-155, where the Full Court held that a decision to lay a complaint before a disciplinary tribunal does not affect interests in such a manner as to attract a duty to observe procedural fairness.

[20]    Reasons, [4].

[21]    Reasons, [17].

[22]    Reasons, [4].

[23] (2011) 30 NTLR 195.

[24] Reasons, [4], [17].

[25]    See Twist v Randwick Municipal Council (1976) 136 CLR 106 109-112 per Barwick CJ, at 113-117 per Mason J.

[26]    See M Aronson, et al, Judicial Review of Administrative Action and Government Liability, 6^th ed, (2017), Law Book Co, Thomson Reuters, [7.340]-[7.360], citing at footnote 504 Day v Harness Racing New South Wales (2014) 88 NSWLR 594 at [127] per Leeming JA (McColl and Macfarlane JJA agreeing).

[27] The Regulations do not contain any provisions relating to reviews under s 84E.

[28] There is no express requirement in the Act for reasons to be provided.

[29]    See AX v Mental Health Review Tribunal [2019] NTSC 34 at [13] per Blokland J.

[30]    Allesch v Maunz (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ.

[31] Ibid. A court hearing an appeal in the strict sense can only give the decision which should have been given at first instance on the basis of the facts and the law as they stood when the original decision was given.

[32]    Interpretation Act 1978 (NT), s 24(2)(a).

[33]    CH v Mental Health Review Tribunal (2017) 320 FLR 417 at [18]-[19], [23] per Hiley J, citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13] per Gleeson CJ, Gaudron and Hayne JJ.

[34] Ibid at [25] per Hiley J.

[35] Ibid at [25] per Hiley J. See also AX v Mental Health Review Tribunal [2019] NTSC 34 at [15] per Blokland J.

[36] (2010) 26 NTLR 45.

[37] (1998) 197 CLR 172 at [50]-[57], [100]-[103], [186].

[38] Reasons, [12], [20].

[39] Ibid.

[40]    Reasons, [21].

[41]    Reasons, [8].

[42]    Reasons, [9]. It should be noted that Jordan was unaware of the criticism in the memo at the time he produced the Jordan declaration.

[43]    Reasons, [10]. The reasons actually compare the experience of ‘Jordan’ and an investigating member, but in context this must have been intended as a reference to ‘Bedwell’.

[44]    Reasons, [12].

[45] Reasons, [13]-[14].

[46]    Reasons, [15].

[47]    Reasons, [16].

[48]    I Freckelton, Expert Evidence, 6^th ed (2019), Lawbook Co Thomson Reuters, [5.10.200].

[49]    Cross on Evidence, [Advance.Lexis.com], [25225].

[50] Ibid, [25250]. Under ss 118 and 119 of the Evidence (National Uniform Legislation) Act 2011 (NT), the privilege operates in disciplinary proceedings: see The Queen v Rolfe [2021] NTSC 46 at [16] per Grant CJ.

[51]    See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

[52] Ibid.

[53]    Transcript of preliminary hearing, pp 8, 30-31.

[54] (2010) 26 NTLR 45.

[55]    See, for example, Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 at 237-238 per Kirby P, citing Costi v Keats [1972] 2 NSWLR 957 at 960, and quoting the content of the proposed further evidence at 238-239, and at 2148-249 per Mahoney JA (Glass JA agreeing), referring to the content of the proposed further evidence. See also, for example, Cox v Snowball & Kaufmann [1930] VLR 325 at 340 per Lowe J, who observed that the Court hearing an appeal from a decision on a retrial which had not received into evidence an agreement which had been tendered in the original trial, could and did look at and take into account the agreement, which remained in the Court’s records from the original trial, and at 330 per Mann J, who also examined the agreement.

[56]    See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.

[57]    See Garner, Black’s Law Dictionary, 9^th ed, West; Australian Legal Dictionary, 2^nd ed, LexisNexis; Concise Australian Legal Dictionary, 4^th ed, LexisNexis; D Greenbero, Jowitt’s Dictionary of English Law, 3^rd ed, Sweet & Maxwell; E Hardy Ivamy, Mozley & Whiteley’s Law Dictionary, Butterworths; M Woodley, Osborn’s Concise Law Dictionary, 11^th ed, Sweet & Maxwell; Greenberg, Stroud’s Judicial Dicitionary, 8th ed, Sweet & Maxwell; Words and Phrases Legally Defined, 4th ed, LexisNexis.

[58] (1997) 79 FCR 378.

[59] [2004] VSC 180 at [46] per Balmford J.

[60] (2019) 3 QR 251.

[61] [1929] 1 Ch 602 per Maugham J.

[62] (2019) 3 QR 251.

[63]    Interpretation Act 1978 (NT), s 3(3).

[64]    See M Aronson, et al, Judicial Review of Administrative Action and Government Liability, 6^th ed, (2017), Law Book Co, Thomson Reuters, [13.20], citing at footnote 7 Moran v Secretary to the Dept of Justice and Regulation (2015) 48 VR 119 at [21], and at [13.100], citing at footnote 81 Eastman v Australian Capital Territory (2014) 9 ACTLR 119 at 131.