materials before the original decision maker (Phillips v The Commonwealth of Australia [1964] HCA 22; (1963-64) 110 CLR 347). At pp 621-2 his Honour said: "Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect ... . 10. The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. 11. On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. 12. But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, ... ." 13. Similarly, in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 124-5 Dawson J speaking of a hearing de novo said: "... the informant or complainant starts again and has to make out his case and call his witnesses" .... A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again". 14. In the cases referred to thus far reference is made to appeals from an administrative body or court to a court. There have been suggestions in some cases that determining the nature of an appeal might be aided by a presumption such as that spoken of by McHugh JA. in Strange-Muir and Another v Corrective Services Commission of New South Wales and Another (1985-86) 5 NSWLR 234 at 250, that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. It was suggested in written submissions in this case that the view his Honour there expressed was shared by Priestly JA. It is true that his Honour reached the same conclusions as did McHugh JA. concerning the construction of the legislation there in question, but he expressed himself "content to rest my opinion upon a reading of the words of the section in the context of that Act as a whole" (at p246). The position binding on me is that propounded by Deane, Gaudron and McHugh JJ in Re Coldham and Others; Ex parte Brideson [1990] HCA 36; (1989-90) 170 CLR 267 at 273-4: "...it is well settled that, when the legislature gives a court the power to review or hear an "appeal" against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash [1947] NSWStRp 11; (1947) 47 SR (NSW) 283. Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd". 15. That case fell to be considered in the Court of Appeal in New South Wales in Maritime Services Board v Murray, unreported 22 December 1993. Kirby P. said that the: "the appellant sought to extract from Strange-Muir and the qualified support given to it, by reference, in Re Coldham, a settled rule of law governing all appeals from administrative decisions to administrative tribunals. I would doubt the existence of such a rule. If it exists, it is no more than a principle to aid in the ultimate task to which the High Court drew attention in Re Coldham. This is to try to find what Parliament intended by the particular "appeal" provided by the legislation in question." (at p14) 16. Handley and Sheller JJA. agreed. With respect, the weight of opinion does not support the presumptive rule spoken of by McHugh JA. I do not adopt it. This case, however, concerns an appeal from one administrative body to another administrative body. The Board is not a Court. If it were, then it would be appropriate to bear in mind that when considering the nature of an appeal from an administrative body to a Court that factor may be taken into account as indicative of the appeal being by way of hearing de novo (see for example the comments of Kirby P. in Workers' Compensation (Dust Diseases) Board v Veksans (supra) at 231. LEGISLATIVE HISTORY AND PREVIOUS DECISIONS OF THE BOARD 17. There have been a number of changes to the relevant provisions of the Police Administration Act over the years, although the Commissioner's powers under s23 were largely untouched. (Included in the Commissioner's original powers was that of dismissing a member from the Police Force (s23(h)) and retiring a member on health grounds (s24). There is no longer the power to dismiss, and the retirement provisions apply upon unfitness, on medical grounds or otherwise). The Act was initially brought into force in 1979, and did not then contain any express right of appeal from a Commissioner's decision under the then ss23 and 24, but in s67 it was provided that the then Northern Territory Police Promotions Board would have power to hear and determine an appeal from a decision of the Commissioner made under s23 and other provisions. Its procedures as to taking evidence, summoning witnesses and administering oaths, were much the same as they are now, (s68). It was provided in the original s69 that the hearing of proceedings before the Board should be in public with power, if the Board was satisfied that it was desirable to do so by reason of the confidential nature of any evidence or matter in the public interest, to direct that proceedings or any part take place in private. Parties could be represented, but nothing was said about the position of the Commissioner in an appeal to the Board. Its procedure was, subject to the Act and Regulations, within its discretion and otherwise the same as in the present s72. 18. In a decision of the Board in the matter concerning Chief Inspector Cronshaw in 1980 (at which, by the way, the Commissioner was represented by counsel) it was said that it was the first case before the Board in which the decision complained of was a demotion. The Board noted that there was no express provision regarding the position of the Commissioner, and suggested that the Act be amended to make it clear whether the Commissioner should be a party. It was said, in the reasons, that the appellant had had no hearing before the Commissioner directed to the points at issue in the appeal, and that he claimed a hearing de novo before the Board. But counsel for the Commissioner argued that the proceedings were of the nature of a true appeal and the Board agreed with him (I take that to mean an appeal stricto sensu). The Board noted that there were no provisions in relation to an appeal against the then s23, equivalent to that in the then s108, dealing with appeals from other disciplinary decisions, that the appeal be by way of a rehearing. The short reasons of the Board on this point were to the effect that since the nature of the appeal had been described as being by way of rehearing in s108, and there was no description of the nature of the appeal envisaged under s67, it followed that that appeal was stricto sensu. In the course of the reasons the Board also pointed out that under s110 of the Act in relation to appeals from other disciplinary proceedings, it was provided that a question of law arising was to be determined in accordance with the opinion of the Chairman, a Stipendiary Magistrate, and such provision should also be included in relation to the appeals of the type then under consideration. There is no date on those reasons, but it was given in respect of an appeal from a decision of the Commissioner declared on 1 December 1980. In 1983 the Legislative Assembly made substantial amendments to the Police Administration Act. As mentioned above, the power of the Commissioner to dismiss a member was removed and it was substituted with the power to "retire the member" and there was an added obligation upon him to give notice to the member of a decision made under s23. As to appeals, s67 was amended, as indicated above, to specifically provide for an appeal to be made to the new Board against the action of the Commissioner under s23, and there was added a significant number of provisions indicating that there had been a substantial review of the appeal provisions contained in the original s67. Amongst other things, it was provided that the Commissioner be a party to proceedings before the Board in respect of such an appeal, and that a question of law arising in the appeal be determined in accordance with the opinion of the Chairman, two of the suggestions made in the reasons for decision in Cronshaw. 19. It is submitted that the decision of the Board in Cronshaw that the nature of the appeal was stricto sensu, coupled with the adoption by the legislature of the suggestions made by the Board as to the Commissioner being a party and the role of the Chairman on questions of law, the parliament must have considered that the decision of the Board as to the nature of the appeal ought not to be affected by legislative intervention. It is put by counsel for the Commissioner that that view is reinforced by the amendments that were made at the same time to s74. As originally enacted, it was provided that:

1. on such an appeal the Board could affirm, set aside or vary the decision of the Commissioner;
2. where the Board sets aside a decision of the Commissioner it could substitute its own decision for the decision under appeal, and
3. where on the appeal the Board varies or substitutes a decision of the Commissioner effect should be given to the decision as so varied or substituted as if it were the decision of the Commissioner.
4. The amended provisions read (in part): "Where, on an appeal ..., the appellant proves to the satisfaction of the Board that the ... action to which the appeal relates was wrong" it may affirm, set aside or vary the action.
5. Where it does so "it may substitute its own ... action for the ... action to which the appeal relates".
6. There are other more detailed provisions as to the effect of the Board's decision on other matters which may be the subject of an appeal, and consequential considerations which are not relevant here. There was no amendment expressly providing for the nature of the appeal.
7. The matter fell for consideration again before the Police Promotions Appeal Board after those amendments, and I have been provided with a determination on the question of law by the Chairman dated 15 November 1991. He is the same Stipendiary Magistrate who was Chairman of the Board in the matter of Cronshaw, but who did not at that time have the statutory power to make decisions on matters of law which would be binding on the Board. In the second matter, concerning a decision of the Commissioner to retire Andrew Charles Wrenn from the Force, his Worship had the benefit of argument from counsel instructed by the parties, Mr Wrenn and the Commissioner, and his attention was of course drawn to the ruling given in the matter of Cronshaw. Relying upon the opening words to s74, the Commissioner argued that to give effect to those words the Board must require the appellant to go first and show error, which was said to be inconsistent with the notion of a hearing de novo. In an appeal of that nature the Commissioner's decision would be irrelevant and there would be no need for the appellant to prove it wrong. His Worship wrestled with the problems arising consequent upon the amendments. He noted, amongst other things, that subs(2) of s67 provides that the Board may allow a member otherwise qualified to appeal against certain decisions, to appeal against them where he satisfies the Board that he was unable, due to prescribed circumstances, to take part in the original decision making process or that: "the application went astray or arrived too late to be taken into consideration". Those decisions relate to promotions. His Worship reasoned that since the Board's power in those circumstances depended upon evidence being given by the member to support the prescribed circumstances, then the appeal there in contemplation must be de novo, in which the Commissioner and the appellant put their cases as if for the first time. If that be the case, then his Worship said there was difficulty in fitting s74(1) into the scheme, but noted the submissions on behalf of the Commissioner that appeals under s67 generally were appeals in the strict sense, although subs(2) of s67 called for hearing de novo but by "a fiction"; s74(1) is preserved by deeming the Commissioner to be wrong because he proceeded in the absence of the appellant. While considering the matter further, his Worship drew attention to something on the subject that was said by the Board in Cronshaw: "The Board takes the view that it ought to interfere if the Commissioner's determination was plainly wrong, manifestly wrong if you like. In a case like this, where inefficiency is an issue, because inefficiency has points in common with negligence, it may not be wrong to speak of the determination as being manifestly excessive, but "manifestly wrong" is generally applicable", and conjectured that perhaps the parliament applied the thoughts behind that statement in fashioning s74(1). In the end his Worship held, relying particularly on what was said in this Court by O'Leary J in the matter of Rabuntja v Minister for Education , that the opening words of s74(1) mean no more: "than that at the end of the hearing the appellant must have persuaded the Board that the decision of the Commissioner was not the right decision, on the material now available to the Board, or was not wholly right, and that if he has not persuaded the Board, then the decision will stand, ...."