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

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.

Turner v Northern Territory of Australia & Anor [2021] NTSC 55 | Case summary | Zoe

[21]

[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.

[27]

[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]

[28]

[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.
[28] 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.
[29] 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'.
[30] 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].
[31] 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]

[45]

[47] 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]
[48] 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.
[49] 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.
[50] 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.

[47]

[51] 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]
[52] 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.
[53] 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.
[54] 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).
[55] 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'.
[56] 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.
[57] 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).

[48]

[58] 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]
[59] 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]
[60] 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)).
[61] 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.
[62] 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).

[56]

[73] 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.
[74] 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).
[75] 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.
[76] 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:

[59]

[77] 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)).
[78] 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.
[79] 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'.
[80] 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.
[81] 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.
[82] 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.
[83] 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.
[84] 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.
[85] 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.

[84]

[87] 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)).
[88] 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.
[89] 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.
[90] 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.
[91] 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.

[86]

[92] 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).
[93] 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]
[94] 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).
[95] 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.
[96] 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.
[97] 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.
[98] 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]
[99] In my view, it follows that, on an application made under s 95(3), the Board may:

[90]

[100] 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.
[101] 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.
[102] 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.

[91]

[103] 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]
[104] 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]
[105] 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]
[106] For these reasons, the Board held that the proposed additional material was not 'relevant and necessary to the investigation'.[44]
[107] 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]
[108] Consequently, the Board held that it was:[47]

[97]

[110] 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.
[111] 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.
[112] 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.
[113] 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.
[114] 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.
[115] 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.
[116] 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.
[117] 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.
[118] 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.
[119] 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)).
[120] 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.

[99]

[121] 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.
[122] 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.
[123] 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]
[124] 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.
[125] 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.
[126] 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]
[127] 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.

[103]

[130] 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.
[131] 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).
[132] 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.
[133] 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.
[134] 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]
[135] 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.
[136] 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.
[137] 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'.
[138] 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.
[139] 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.
[140] 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.

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