"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

The grounds of the application for judicial review

1. There are seven grounds of this application. Essentially, they raise two issues. The first is the one which I have already identified; that is, the nature of the review to be conducted by the Board. The second is the question of who bears the onus of proof in the review process. Counsel for the parties were agreed that I need only resolve the first issue, as the second issue was really a consequential one and answered by the resolution of the first issue. If the conclusion is that the Board conducts a full merits review, the parties accept that in terms of a legal onus, the nature of the process is the one described by Woodward J in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 356 - 357. The applicant may have a practical onus to prosecute his application and to put relevant materials before the Board.

1. Division 1 of Part 4 of the Act (ss53, 54) deals with the Board itself. It is established by s53(1). The Board is to be made up of five members "with appropriate skills and experience" appointed by the Minister. The Minister is to appoint one of the members as chairperson. There is no stipulation that the chairperson, or any of the other members, needs legal qualifications. For any particular case, the Board is constituted by the chairperson and at least two members.
2. The Act is oddly structured. Under s54(1)(a), the Board must determine applications for review of "promotions, demotions and terminations" under the Act. Under s54(1)(b), it must determine applications for review of "other matters specified in section 60." Section 60 deals with the review of "disciplinary matters". The specified matters include termination and demotion (or reduction in remuneration), and extend to the imposition of a fine or forfeiture, a suspension of remuneration or allowances, and the payment of costs for lost or damaged equipment.
3. However, Div 2 (ss55 - 59) and Div 3 (s60) of Part 4 of the Act respectively deal only with reviews relating to promotion and to disciplinary matters. There is no review process outside Div 3 which relates to demotions or terminations as suggested in s54(1)(a). Putting that general observation to one side, there is one particular aspect of Div 2 which I should mention.
4. Section 55(2) enables a review of a decision relating to a promotion on two grounds only. The first, set out in s55(2)(a), is that the applicant was "of superior merit"; the second, set out in s55(2)(b), is "that there was an irregularity in the procedures relating to the process that affected the decision." The grounds of review under s60 in Div 3 are not limited. In this application, I am only concerned with a review under s60, and neither party sought to address the possible significance to the application of the second ground under s55(2)(b). For those reasons, although I will later say a bit more about Div 2, I will confine my attention to Div 3. Having said that, I note that most of the procedural provisions are common to both Div 2 and Div 3, and are contained in Div 4 (ss61 - 76).
5. The following are the relevant features of the review process:

(a) The Board has the power to do anything necessary or convenient to perform its functions - s54(2).

(b) An application for a review by a person aggrieved by any decision, determination or order or recommendation made by the Commissioner in respect of the specified disciplinary action must be made in writing, stating the grounds on which it is made - s60(2)(a).

(c) In hearing and determining an application for review, the Board is to have regard at all times to the public interest and community confidence in the Police Service and of the Commissioner's responsibilities as set out in s7 - s60(3).

1. The Board's general procedural powers under Div 4 include the following:

(a) The Board may require or summon a person to attend a review, requiring that person to attend to give evidence, produce documents or produce records - s70(1), (3).

(b) The Board may direct a person required to attend a review to do any one of those things - s70(5).

(c) A person summoned or required to attend must not without reasonable excuse fail to attend the proceedings, or refuse to answer any question put by the Board, or give an answer that to his or her knowledge is false or misleading, or without reasonable excuse fail to produce any document or record, on pain of a fine not exceeding 20 penalty units - s70(6).

(d) In a review relating to the termination of appointment or demotion, the applicant may be represented by a legal practitioner. Otherwise an applicant may be represented by a legal practitioner depending on the amount or value of what is involved - s71.

(e) The Board may require the applicant to lodge further documents or records, or any other person to lodge any documents or records, within a specified period - s74(1).

(f) The rules of evidence do not apply to the review, and the Board may be informed in any manner in any way it considers appropriate - s75(1).

(g) On the hearing of an application for review, a witness is only to be examined or cross-examined if the Board is satisfied that it is necessary to do so - s75A(1).

(h) Subject to the Act, the procedure on the making, hearing and determination of applications for review is to be prescribed, or in the absence of regulations, as the Board may determine - s75D.

(i) Any proceedings of the Board in the conduct of a review are closed to the public, unless the Board determines that it is in the public interest to open the proceedings - s76.

1. The question of new material is dealt with separately in s75C. That provides as follows:

"75C Provision and consideration of new material

(1) If a police officer, in respect of whom a recommendation is made under section 30 or an action or determination is taken or made under section 31 or section 43(3) -

(b) subsequently becomes aware of new material relevant to the Commissioner's recommendation, action or determination before the matter is finalised by the Police Review Board; and

the officer is to submit that material to the Commissioner.

(2) If the Commissioner intends to rely on material in addition to that already supplied by or to the police officer referred to in subsection (1), the Commissioner, subject to the requirements of any other relevant legislation, is to provide that material to the police officer -

(b) if the material is not available within that period, as soon as practicable after the material becomes available.

(3) The Commissioner must consider any new material submitted to him or her under subsection (1) within 7 days after its submission, unless of the opinion that the new material should be considered by the Police Review Board.

(4) The Commissioner or the applicant may apply to the Police Review Board for a matter to be deferred for a reasonable period to allow for any new material to be considered."

1. What the Board may do on the determination of the application for review is set out in s75A(2) and (3). Subsection (2) is a general provision, whilst subs(3) provides that, without limiting subs(2), specified orders (which relate to certain types of case) may be made. Subsection (2) provides as follows:

"(2) On determining an application for review under Division 3, the Police Review Board may uphold the application for review in whole or in part, or may dismiss the application, and may make such orders as it considers necessary or desirable for the purpose of giving effect to its decision."

1. Section 75(4) makes "final" the Board's decision upon the determination of the application for review. Also of some significance is s75(6) which requires the Board, when determining an issue of remuneration, to take into account any employment undertaken and income received by an applicant during a period of suspension or termination.
2. Lastly, in this analysis, I note s75B which gives to the applicant or the Commissioner a right of appeal against a decision of the Board, but only on a point of law.

1. Parliament has adopted the use of the word "review" rather than "appeal" to describe both the Board itself and the process which the Board conducts. "The word 'review', like the word 'appeal', is general, and, on that account, somewhat elastic. It takes colour from its context.": Victoria Legal Aid v Kuek [2010] VSCA 29 per Buchanan JA (with whom Weinberg JA and Ross AJA agreed) at [21]. A so-called "merits review" can be restricted or confined in some way, and as explained by Glass JA in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297, the concept of an appeal can have at least six manifestations. One of those is a full hearing de novo.
2. Generally, the word "review" is used in the context of comprehensive administrative review by an administrative tribunal of administrative decisions, as well as the context of judicial control of administrative action: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ, Brennan and Toohey JJ at 261. The term "is appropriate to denote another body undertaking an enquiry as to whether the original decision maker came to the correct conclusion": Victoria Legal Aid v Kuek (above) at [26].
3. In the end, the answer depends on an examination of the legislative provisions: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 per Mason J at 622; Australian Telecommunications Commission v Colpitts [1986] FCA 257; (1986) 12 FCR 395 per Toohey J (Fisher J agreeing) at 404. The question is what Parliament is taken to have intended by the language used, putting it in its context and having regard to the apparent purpose of the legislation. Statutory purpose resides in the legislation's text and structure, and may appear by inference from the text or appropriate reference to extrinsic materials: Lacey v Attorney-General for Queensland [2011] HCA 10; (2011) 242 CLR 573 at 592 - 593 [43], [44].
4. If the applicant's argument is correct, the Board does not review the original decision as such, but the subject of the original decision. Its task would be "to do over again" what the Commissioner did: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 per Kitto J at 502. The question for the Board would be whether the Commissioner's decision "was the correct or preferable one" on the material before the Board: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 per Kiefel J at 327 [140].
5. If it is right that the Commissioner exercised the power under s31 of the Act, then as the Board is obliged to address the same question as the primary decision-maker, it is the Board's state of mind which is relevant: see for example Migration Agents Registration Authority v Shi [2006] FCA 1236 at [73]; on appeal - Shi v Migration Agents Registration Authority [2007] FCAFC 59; (2007) 158 FCR 525 per Nicholson J (Tracey J agreeing) at 531 [10]. (This approach was not questioned on appeal to the High Court - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 per Kirby J at 294 - 295 [20] - [23]. The points were the material to which the federal Administrative Appeals Tribunal should have had regard and what powers it had under the particular legislation.)

1. The starting point is that the Board is an administrative body whose task is to review administrative decisions, determinations or recommendations made by the Commissioner. Given the usual connotation of "review" in such a context, I observe that the Board's power to review is not expressly limited in any way. There is nothing in the text or context of the relevant provisions to compel the implication that the Board is confined to the identification of error. There is nothing to suggest that the task of the Board is other than to do again the task performed by the Commissioner.
2. As part of those observations, I note the absence of legislative direction that any of the members have legal qualifications. Whilst it is possible they might have, and without meaning any criticism of the abilities of the Board members, such a provision might be expected if part of the Board's task was to identify legal errors and to act in accordance with the correct law.
3. A relevant consideration is that the Act makes no provision for a record of what took place in relation to the Commissioner's decisions, determinations and recommendations. The Commissioner is under no obligation to give reasons, and some of the issues, such as promotion, may be non-judiciable. Such factors may be a basis for finding that a particular process calls for the exercise of original jurisdiction or a hearing de novo: Builders Licensing Board v Sperway Constructions (above) at 621.
4. There is some force in the Commissioner's submission that the requirement for grounds to be stated in an application for review is a factor in support of his argument. As earlier noted, under s55(2), applications for review relating to promotion may only be made upon one or other of two grounds. There is a requirement to specify which: s55(3). The same situation does not exist in relation to applications for a review relating to disciplinary matters. However, that of itself is not conclusive, and in any event, to require grounds to be stated is not inconsistent with a full merits review. Such a requirement serves to define the issues.
5. Further, a number of provisions combine to give a very clear indication that the Board is to hear evidence. It has powers to require or summon a person to attend a review in order to give evidence, or to produce documents or records. It may direct a person required to attend a review to do those things and, in general terms, a person may be punished for a failure to co-operate; see s70.
6. Not only is there a power to receive new material as a matter of discretion, s75C goes further. The terms of the section assume that if there is new material and the applicant intends to rely on it, he or she may do so without leave. The only limitation is that the material must be submitted to the Commissioner. The Commissioner is put in the same position, and must provide to an applicant additional material intended to be relied on. To me, that is a very clear indication on its own that the Board is to conduct a comprehensive merits review.
7. The provision for the receipt of new material, and the clear mandate that the Board is not restricted to the material before the Commissioner, are very significant. Such a provision reflects the situation that when making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. If, as is the case with the Board, there is a power to make decisions in substitution for the decision under review, "it would be surprising in the extreme if the substituted decision did not have to conform to such a standard": Shi v Migration Agents Registration Authority (above) per Kirby J at 299 - 300 [41] - [42].
8. Another factor which relates to the hearing of an application for review is s60(3). It will be recalled that the provision requires the Board to have regard at all times to the public interest and community confidence in the Police Service, and to the Commissioner's responsibilities as set out in s7. Under s7(1), the Commissioner is responsible for the efficient, effective and economic management and superintendence of the Police Service. Section 7(2) sets out specific matters for which the Commissioner is responsible. They include the determination of the organisational structure of the Service, and discipline within the Service.
9. Section 60(3) would have a very limited operation if the Board's power of review was limited to a re-hearing in the sense contended for by the Commissioner. Conversely, the existence of the provision adds force to the proposition that the Board re-determines the matter and stands in the shoes of the Commissioner. The terms of the provision make much more sense in the context of a full merits review.
10. The Commissioner submitted that one of the relevant features which supported his contention as to the review process, is the "considerable discretion as to the disposition of the application" afforded by s75A(2) and (3). Counsel relied on the proposition that this did not suggest that the decision of the Board became that of the Commissioner, and hence more broadly, that the Board did not stand in the shoes of the Commissioner: State of Tasmania v Anti-Discrimination Tribunal (2009) 19 Tas R 54 at 69 - 70 [44]. In that case however, it was accepted that the review was an unrestricted merits review, and the point was whether the review was conducted solely on the materials before the original decision-maker.
11. In any event, I do not see the nature of the powers given to the Board in this case as of any real moment. The Board may uphold the application in whole or in part, dismiss it, and make such orders as it consider necessary or desirable for the purpose of giving effect to its decision. With the exception of an express power to remit, these are similar powers afforded to the AAT under s43 of the Administrative Appeals Tribunal Act 1975 (Cth). It is beyond question that, subject to the statute conferring the power of review, the AAT conducts full merits reviews. Its general powers under s43 are seen as a convenient and integral part of the review process: Shi v Migration Agents Registration Authority (above) per Kirby J at 297 - 299 [33] - [38].
12. For the sake of completeness, I add that even taking into account the "irregularity" ground of review under s55(2)(b) as part of the context of s60, my view does not change. I think that the result is made quite clear by the features which I have discussed.

1. For those reasons, I hold that a review under s60 of the Act is a full review of the merits. That means determining what the correct or preferable decision ought to be, deciding the matter by reference to the material before the Board. The review is not equivalent to an appeal by way of rehearing. It is not necessary for me to decide the point, but I would observe that if the question related to the nature of a review under s55, in my view the answer would be the same. Giving the Board the power to review a promotion on the ground of an irregularity in the procedures, as well as on the ground of merit, does not alter the fundamentals of the review process as set out in Div 4.
2. The application is granted. I quash the decision of the Board as to the nature of the review it is to conduct. I direct the Board to proceed with the hearing of the review in accordance with this decision.