Willmott v Carless[2024] QCA 115

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant is a sergeant of the Queensland Police Service (QPS).  The first respondent who is an Assistant Commissioner of the QPS made a decision on 20 November 2020 under the Police Service Administration Act 1990 (Qld) (Police Service Act) in a disciplinary proceeding finding the charge against the appellant was substantiated and on 1 March 2021 imposed a disciplinary sanction.  On 29 March 2021 the appellant applied for review of those decisions to the Queensland Civil and Administrative Tribunal (Tribunal) and that review is pending.  The Crime and Corruption Commission (CCC) which is the second respondent elected pursuant to s 219R(2) of the Crime and Corruption Act 2001 (Qld) (CC Act) to become a party to the review.
2. [2]
   The Tribunal member, The Hon Duncan McMeekin KC, on 15 March 2023 referred to the Court of Appeal pursuant to s 118(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) (in accordance with the delegation given by the President to the Tribunal member pursuant to s 182(1) of the QCAT Act) the following question:

“On the proper construction of s 20 of the Queensland Civil and Administrative [Tribunal] Act 2009 (Qld) and s 219Q of the Crime and Corruption Act 2001, on the Tribunal’s review of the First Respondent’s decisions is the Tribunal bound to make its own decision based on the evidence then before it, whether or not new evidence is received, or is its power to review predicated on there being first shown legal, factual or discretionary error in the decision below?”

3. [3]
   The Tribunal member made the referral order because there appeared to be inconsistent decisions of the Court of Appeal on the nature of the Tribunal’s review of a decision on a police disciplinary matter: Willmott v Carless (unreported, OCR083-21, 19 August 2022) at [26].  The two Court of Appeal decisions that were considered by the Tribunal member were Aldrich v Ross [2001] 2 Qd R 235 and Gunter v Assistant Commissioner Wilkins [2021] QCA 274.

Relevant statutory provisions

4. [4]
   The current part 7 of the Police Service Act was inserted by the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (Qld) (the Amendment Act) and commenced on 30 October 2019.  As the disciplinary proceeding notice given by the first respondent to the appellant was dated 5 June 2020, it was the current part 7 that applied to those proceedings.
5. [5]
   Division 4 of part 7 of the Police Service Act deals with the process for disciplinary hearings by prescribed officers.  The grounds for disciplinary action are set out in s 7.4.  It is implicit under s 7.8 (which requires the subject officer’s lawyer to be given a copy of the notice given to the subject officer where the person giving the notice under part 7 is aware the subject officer is represented by a lawyer) that the subject officer is entitled to legal representation in connection with the disciplinary process.  Under s 7.25, a prescribed officer may start a disciplinary proceeding by giving the subject police officer a disciplinary proceeding notice that states the particulars of the alleged ground for disciplinary action and gives the subject officer the opportunity specifically provided for in s 7.26 to give the prescribed officer a written submission and other materials to show why disciplinary action should not be taken in relation to the disciplinary charge.  Under s 7.27(2), the prescribed officer must decide whether the disciplinary charge or another ground for disciplinary action is proved.  Section 7.28 provides:

“(1) This section applies if, under section 7.27, the prescribed officer is reasonably satisfied the disciplinary charge, or another ground for disciplinary action, is proved.

2. The prescribed officer may give the subject officer a notice (a proposed sanction notice) stating each of the following matters—

1. that the prescribed officer has decided the disciplinary charge, or another ground for disciplinary action, is proved;

2. the reasons for the decision;

3. the disciplinary sanction or professional development strategy (the proposed sanction or strategy) the prescribed officer proposes to impose on the subject officer;

4. that the subject officer may give the prescribed officer a written submission and other materials, within a stated period of at least 21 days, to show why the proposed sanction or strategy should not be imposed.”

6. [6]
   Under 7.29 of the Police Service Act, the subject officer is given a right to make a written submission and give the prescribed officer other material to show why the proposed sanction or strategy should not be imposed.  Where the prescribed officer has given the subject officer a proposed sanction notice and either the period for making submissions has expired or the subject officer has given the prescribed officer a written submission or other materials and the prescribed officer has considered any written submission and other materials, s 7.30(2) provides:

“(2) The prescribed officer must decide—

1. to impose on the subject officer—

1. the proposed sanction or strategy; or

2. any other disciplinary sanction or professional development strategy that is no more detrimental to the subject officer than the proposed sanction or strategy; or

2. not to impose a disciplinary sanction or professional development strategy on the subject officer.

3. A decision under subsection (2)(a) takes effect on the day the subject officer is given a QCAT information notice for the decision under section 7.31.

4. This section applies subject to division 5.”

7. [7]
   A QCAT information notice is defined in schedule 2 to the Police Service Act as a notice complying with s 157(2) of the QCAT Act for the decision.  Section 7.31 provides for the time period within which the prescribed officer must give the subject officer and the CCC a QCAT information notice for decisions under s 7.27(2) or s 7.30(2).  Section 7.31(2) sets out the content of a QCAT information notice for a decision to impose a disciplinary sanction or professional development strategy which s 7.31(3) then states does not limit s 157(2) of the QCAT Act.
8. [8]
   Section 7.32 sets out the principles for conducting the disciplinary proceeding:

“In conducting the disciplinary proceeding, the prescribed officer—

1. must observe the rules of natural justice; and

2. must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the matters before the prescribed officer; and

3. is not bound by the rules of evidence; and

4. may get information on a matter in a way the prescribed officer considers appropriate; and

5. may decide the procedures to be followed for the proceeding, subject to any guidelines made under section 7.44.”

9. [9]
   The CC Act makes provision for the review of specified decisions under the Police Service Act.  Section 219O of the CC Act deals with reviewable decisions and provides:

“(1) A reviewable decision is a decision made under the Police Service Administration Act 1990 that is mentioned in schedule 1, column 1.

2. However, a decision under part 7, division 4 of that Act that a disciplinary charge, or another ground for disciplinary action, has been proved in relation to an officer is a reviewable decision only if the officer is entitled to be given a QCAT information notice for the decision under section 7.27(4) or 7.31(1) of that Act.

3. In this section—

disciplinary charge see the Police Service Administration Act 1990, section 7.25(a).”

10. [10]
    Section 219P of the CC Act deals with the process for making the application to the Tribunal for the review of the reviewable decision, including the time period for making the application.
11. [11]
    Section 219Q of the CC Act which has the heading “QCAT to decide review on evidence before decision maker” provides:

“(1) A review of a reviewable decision is by way of rehearing on the evidence (original evidence) given in the proceeding before the original decision-maker (original proceeding).

2. However, QCAT may give leave to adduce fresh, additional or substituted evidence (new evidence) if satisfied—

1. the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or

2. in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.

3. If QCAT gives leave under subsection (2), the review is—

1. by way of rehearing on the original evidence; and

2. on the new evidence adduced.”

12. [12]
    The parties to a review are specified in s 219R of the CC Act.
13. [13]
    Section 219S of the CC Act confers additional power on the Tribunal where, on the review, the Tribunal finds a ground for disciplinary action has been proved against the subject officer, sets aside the decision and substitutes another decision:

“(1) This section applies if, after reviewing the reviewable decision, QCAT—

1. finds a ground for disciplinary action has been proved against the subject officer; and

2. sets aside the decision and substitutes another decision.

2. QCAT—

1. has the same powers as the commissioner of police under the Police Service Administration Act 1990, part 7, division 5; and

2. may impose any disciplinary sanction on the subject officer under that part, even if the person who made the reviewable decision would not be authorised under that part to impose the disciplinary sanction.”

14. [14]
    Under s 219U of the CC Act, the Tribunal may, by order, refer the matter before it to the CCC or the Commissioner of Police for investigation, or further investigation, with a view to the taking of a criminal proceeding or for another purpose.
15. [15]
    Under s 9(1) of the QCAT Act the Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act.  Section 9(2) provides that the jurisdiction conferred on the Tribunal is either original, review or appeal jurisdiction.  The review jurisdiction is dealt with in Division 3 of Part 1 of Chapter 2 of the QCAT Act.  Under s 17(1) of the QCAT Act, the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.  The definition of an enabling Act is found in s 6(2) of the QCAT Act and includes an Act that confers review jurisdiction on the Tribunal.  The CC Act is an enabling Act for the purpose of the application of the QCAT Act to a reviewable decision as defined in s 219O of the CC Act.
16. [16]
    Section 6(4) relevantly provides:

“An enabling Act that is an Act conferring review jurisdiction on the tribunal may state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.”

17. [17]
    Section 7 of the QCAT Act deals with the application of that Act if there are modifying provisions in an enabling Act:

“(1) This section applies if a provision of an enabling Act (the modifying provision) provides for—

1. the tribunal’s functions in jurisdiction conferred by the enabling Act; or

2. a matter mentioned in section 6(7).

2. The modifying provision prevails over the provisions of this Act, to the extent of any inconsistency between them.

3. This Act must be read, with any necessary changes, as if the modifying provision were a part of this Act.

4. Without limiting subsection (3)—

1. in a provision of this Act relating to a person starting a proceeding, a reference to the person doing something under this Act is taken to be a reference to the person doing the thing under this Act or a modifying provision; and

2. in a provision of this Act relating to the tribunal conducting a proceeding, a reference to the tribunal doing something under this Act is taken to be a reference to the tribunal doing the thing under this Act or a modifying provision.

5. This section does not prevent an enabling Act from expressly stating how this Act applies in relation to the modifying provision, including, for example, by stating that stated provisions of this Act do not apply, or apply subject to stated variations.

6. In this section—

enabling Act means an enabling Act that is an Act.”

18. [18]
    Section 20 of the QCAT Act provides:

“(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.

2. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”

19. [19]
    Subsections (1) and (2) of s 24 of the QCAT Act provide:

“(1) In a proceeding for a review of a reviewable decision, the tribunal may—

1. confirm or amend the decision; or

2. set aside the decision and substitute its own decision; or

3. set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

2. The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision—

1. is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and

2. subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.”

The issue

20. [20]
    The appellant submits that the “rehearing” referred to in s 219Q of the CC Act is consistent with “a fresh hearing on the merits” as required by s 20(2) of the QCAT Act and that the question referred to the Court should be answered in the following terms: The Tribunal is bound to make its own decision based on the evidence then before it, whether or not new evidence is received.
21. [21]
    The first and second respondents contend that s 20 of the QCAT Act is displaced by s 219Q of the CC Act and the review is a rehearing on the evidence before the decision-maker rather than a fresh hearing on the merits and seek the answer: The Tribunal’s review power is predicated on there being first shown legal, factual or discretionary error in the decision below.

Statutory construction

22. [22]
    The issue raised by the parties’ respective contentions is whether there is any inconsistency between s 219Q of the CC Act and s 20 of the QCAT Act that results in s 219Q prevailing over s 20 of the QCAT Act to the extent of the inconsistency between them (as provided for by s 7(2) of the QCAT Act).  That issue is dependent on what is meant in s 219Q(1) by a review “by way of rehearing on the evidence … given in the proceeding before the original decision-maker”.
23. [23]
    Section 219Q of the CC Act is within part 3 of chapter 5 of the CC Act and was enacted by the Amendment Act.
24. [24]
    One of the reforms of the Amendment Act reflected in the enactment of part 3 of chapter 5 of the CC Act was explained at p 5 of the Explanatory Notes for the Bill that was enacted as the Amendment Act:

“The Bill removes the artificial distinctions of ‘misconduct’ and ‘breach of discipline’ and replaces these categories with the term a ‘ground for disciplinary action’. A ‘ground for disciplinary action’ will encompass the behaviours that are currently listed in section 9 ‘Grounds for disciplinary action’ of the Discipline Regulation and incorporates the definition of ‘breach of discipline’. ‘Misconduct’ will remain as a distinct ground for disciplinary action.

The removal of the separate and distinct discipline categories of ‘breach of discipline’ and ‘misconduct’ will assist in simplifying the police discipline system, as the ability to review a decision or the sanction imposed for improper conduct will not be dependent upon the categorisation of behaviour. If an officer is found to have committed the alleged behaviour, a sanction will be imposed that is commensurate with the seriousness of the allegation, regardless of whether it would have previously been classified as a ‘breach of discipline’ or ‘misconduct’.

The Bill will also allow the CCC to apply for review of QPS decisions not to institute disciplinary proceedings against an officer, thereby implementing Recommendation 15 of the PCCC Report. Furthermore, the CCC will also obtain the ability to apply for review of disciplinary decisions in relation to any grounds for disciplinary action, ensuring that the QPS is not mishandling matters that should be dealt with as misconduct.”

25. [25]
    The Explanatory Notes for s 219Q do not assist in addressing the question of whether s 219Q was intended to modify s 20 of the QCAT Act.  It was noted in the Explanatory Notes at p 48 that s 219Q replicates the operation of s 219H as it applied to all reviewable decisions before the commencement of the Amendment Act, including review of decisions in relation to police misconduct, but s 219H would now be limited in operation to reviewable decisions under part 2 of chapter 5 of the CC Act (which are decisions that are within s 219BA(1)).  The Explanatory Notes then observed that s 219Q “ensures consistency between part 2 and part 3 in relation to the conduct of QCAT proceedings for review of decisions”.

Aldrich v Ross

26. [26]
    The forerunner of the review provisions in the CC Act were the appeal provisions in the Misconduct Tribunals Act 1997 (Qld) (MT Act) which relevantly provided for a misconduct tribunal to exercise appellate jurisdiction to hear and decide an appeal against decisions in relation to a disciplinary charge of misconduct (other than a decision made by a court or a misconduct tribunal) and against a finding of misconduct under s 7.4(2A)(b) of the Police Service Act.  Section 23(4) to (6) of the MT Act provided:

“(4) If the tribunal is exercising appellate jurisdiction, the appeal is by way of rehearing on the evidence (‘the original evidence’) given in the proceeding before the original decision-maker (‘original proceeding’).

5. However, the tribunal may give leave to adduce fresh, additional or substituted evidence (‘new evidence’) if the tribunal is satisfied –

1. the person seeking to adduce the new evidence did not know, or could not reasonably be expected to have known, of its existence at the original proceeding; or

2. in the special circumstances of the case, it would be unfair not to allow the person to adduce the new evidence.

6. If the tribunal gives leave under subsection (5), the appeal is –

1. by way of rehearing on the original evidence; and

2. on the new evidence adduced.”

27. [27]
    In Aldrich, Deputy Commissioner Aldrich found two charges of a disciplinary nature against Mr Ross who was a police officer substantiated and imposed sanctions.  Mr Ross appealed to the misconduct tribunal which allowed the appeal and varied the disciplinary action by imposing a lesser sanction.  As there was no appeal from the misconduct tribunal’s decision on appeal, the Deputy Commissioner then brought an application to the Supreme Court for judicial review of the decision of the misconduct tribunal on the ground that the decision was wrong in law.  The Deputy Commissioner succeeded on the judicial review before Chesterman J and that resulted in Mr Ross’ appeal to this Court.
28. [28]
    Critical to the decision of Thomas JA (with whom Pincus JA and Muir J agreed) was the nature of the structure, powers and duties of both the original decision-maker and the misconduct tribunal.  Thomas JA described (at [16]) the original determination under the Police Service Act as an internal procedure with the appeal to the misconduct tribunal under s 16 of the MT Act as the only avenue of appeal from that decision.  Thomas JA observed (at [13]) that the statutory prescription for the original decision found within s 7.4 of the Police Service Act was minimal.  Section 7.4(2) provided that an officer was “liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations”.  The grounds were set out in regulation 9(1) of the Police Service (Discipline) Regulations 1990 (Qld) (the Regulations).  Thomas JA noted (at [15]) that, in most instances, an officer would be charged by means of a broad allegation that conformed with those specified in regulation 9, followed by particulars of the actual conduct on which the charge was based.  The charges against Mr Ross were of that kind.
29. [29]
    The relevant provisions of the MT Act that regulated the exercise by the misconduct tribunal of its appellate jurisdiction, particularly s 20, s 23 and s 27, were identified by Thomas JA (at [17]).  It was noted (at [22]) that the initial disciplinary procedure before the senior police officer would be subject to the rules of natural justice, but there was no express requirement for the officer to hold a hearing, to keep a record of any hearing or other inquiry, to hear witnesses or to conform to any particular procedure.  Significantly, Thomas JA considered (at [22], [30] and [31]) that there was no requirement for the original decision-maker to give reasons for the decision, as the only requirement under s 7.4(2A) of the Police Service Act was for the Commissioner to give written notice of the decision and the discipline imposed to the Criminal Justice Commission and the police officer within 14 days after making the decision or finding.
30. [30]
    Thomas JA summarised (at [23]) the provisions of the MT Act governing the appellate procedure in the misconduct tribunal noting that, pursuant to s 23(5), further evidence may be received in restricted circumstances which were similar to the receipt by appellate courts of fresh evidence.  Representation by a lawyer was permitted under s 21.  The misconduct tribunal had powers under s 20(2) to compel the production of evidence and under s 24 hearings were to be conducted in public, unless the misconduct tribunal for good reason directed otherwise.  The tribunal had express powers under s 26(1) to confirm the original decision, set it aside and substitute a different decision, or set aside and remit the matter to the original decision-maker.  Under s 26(3), the decision of the misconduct tribunal was expressed to be “final and conclusive”.  The misconduct tribunal was given power under s 28 to order that a punishment imposed by the original decision-maker be suspended in contrast to the limited power of suspension of disciplinary sanctions under regulation 12 of the Regulations given to the original decision-maker.  Under s 27, the misconduct tribunal was given a power of referral of a matter for investigation or further investigation with a view to the taking of a criminal proceeding or for another purpose.
31. [31]
    Thomas JA noted (at [32]) authorities to the effect that “appeal by way of rehearing” does not have a single well established meaning and is determined by discerning the legislative intent and further (at [34]) that use of the words “appeal by way of rehearing” in s 23(4) of the MT Act had a limited relevance “but the identification of the nature of the appeal and the principles upon which it is to be conducted must be decided by a variety of other factors that are to be inferred from the legislation”.  Thomas JA referred (at [33]) to the characterisation of appeals by Gleeson CJ and Gaudron and Hayne JJ in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [12]-[14]:

“[12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

[13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

[14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.” (footnotes omitted)

32. [32]
    Similar views to that expressed in the above quote were also expressed in Coal & Allied Operations by Kirby J (at [68]-[72]) and Callinan J (at [116]-[120]).
33. [33]
    A compelling consideration in Aldrich was noted (at [35]) as the absence of an obligation to give reasons, as an absence of reasons would deny proper scrutiny of the manner in which the discretion was exercised, if the appeal were of a kind that required the principles of House v The King (1936) 55 CLR 499 to be applied.
34. [34]
    Thomas JA concluded (at [37]) that the appeal to the misconduct tribunal should not be taken to be limited by the principles of House v The King or by the need to identify some error that the original decision-maker had committed.  The reasons for that conclusion were set out at [40] as:

“The Misconduct Tribunal is given only a qualified power to receive further evidence, although it has a liberal discretion in this respect. Standing alone that factor would tend to favour an appeal in the strict sense. That tendency, however, is outweighed in my view by many others. These include the absence of obligation on the original decision-maker to keep a record; the absence of any right to legal representation for the police officer; the requirement that the police officer answer questions and do so truthfully; the seriousness of the orders that the original decision-maker may make; the recognition by the legislature of the need for an external review which it is unlikely to have intended to be ineffectual; the absence of obligation upon the original decision-maker to give reasons; the wide range of issues that come before the original decision-maker, ranging from findings of misconduct to discretionary matters such as determination of the appropriate sanction; the breadth of the Misconduct Tribunal’s power to find facts and investigate; its power to make orders that could not be made by the original decision-maker; its power to ‘give the orders about a proceeding it considers appropriate’ and to set aside the decision and substitute another decision; and the finality of its orders.” (footnotes omitted)

35. [35]
    Thomas JA had referred (at [26]) to the reasons of Chesterman J on the judicial review for taking “a minimal view of justifiable intervention” by a misconduct tribunal in its appellate jurisdiction including that a Commissioner of the QPS had “the important and difficult task of managing a large institution whose officers play an important part in society and who are given substantial powers and responsibilities for their task”.  Thomas JA accepted (at [42]) that those observations of Chesterman J about the managerial role of the Commissioners of the QPS and their knowledge of the needs of the QPS were valid but it did not follow that a Commissioner would bring to bear the same perception of public interest as that of an outsider;  that therefore made it logical for the provision of some outside review that was not dependent on error.
36. [36]
    Thomas JA therefore concluded (at [47]) that the Tribunal member was obliged to consider the matter afresh, as the Tribunal member did, and (at [50]) there was no valid basis upon which the Tribunal’s decision could be set aside upon judicial review.  Mr Ross’ appeal was allowed.

Gunter v Assistant Commissioner Wilkins

37. [37]
    The review in Gunter before the Tribunal was pursuant s 219H of the CC Act in relation to a finding of misconduct and the sanction imposed by the Assistant Commissioner.  The Tribunal member who heard the review application found that the charge against the applicant had not been substantiated and set aside the decision.  The Assistant Commissioner appealed to the QCAT appeal tribunal which set aside the Tribunal member’s decision and affirmed the Assistant Commissioner’s original decision.  The applicant applied for leave to appeal to the Court of Appeal.  Sofronoff P (with whom Morrison JA and Boddice J agreed) noted (at [3]) that the Tribunal member who heard the review application appeared to have proceeded as though the proceedings were a fresh hearing on the merits.  The nature of the hearing does not appear to have been an issue on that application, but Sofronoff P observed at [2]:

“A review or an appeal, ‘by way of rehearing’ is not the same as a fresh hearing on the merits. In particular, a reviewing tribunal which is conducting such a rehearing is constrained in its freedom to interfere with findings of fact which were based upon an assessment of the credit of a witness. It is not appropriate to engage in an analysis about the reasons for the statutory difference in the standard of review that applies to police disciplinary matters and the standard that applies generally to reviews of executive action under the QCAT Act. One reason lies in the nature of a police service and the importance to the maintenance of public confidence in such a service of the integrity of its specialist internal disciplinary authority over its members.” (footnotes omitted)

The nature of the review under s 219Q of the CC Act

38. [38]
    Even though s 219Q of the CC Act remains expressed in terms similar to s 23(4)-(6) of the MT Act and other provisions in part 3 of chapter 5 of the CC Act (such as s 219S(2) and s 219U) have their analogues in the MT Act (respectively s 26(2) and s 27), the interpretation given to the description of the review by the Tribunal in s 219Q as “by way of rehearing on the evidence … given in the proceeding before the original decision-maker” with limited power for the Tribunal to give leave to adduce fresh, additional or substituted evidence must be undertaken in the context of all the provisions applying to the decision by the original decision-maker and the review under s 219Q.  See Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621-622, Coal & Allied Operations at [69] and Aldrich at [11].  It is the expression “rehearing” used in s 219Q to refer to the review by the Tribunal that must be the focus of the exercise of the statutory construction.  The fact that s 219Q provides for a review rather than an appeal is not determinative of the nature of the rehearing: see Gunter at [2].
39. [39]
    It is significant that the appellate review by the misconduct tribunal was expressed to be final and conclusive.  In contrast, there is an appeal process from a Tribunal decision given on a review under s 219Q that is regulated by the QCAT Act.  One of the factors that Thomas JA expressly identified in Aldrich as favouring an appeal in the strict sense (rather than a fresh hearing on the merits) was the misconduct tribunal was given only a qualified power to receive further evidence under s 23(5) of the MT Act.  An identical provision applies under s 219Q(2) of the CC Act.  There is much greater prescription in the procedures provided for under division 4 of part 7 of the Police Service Act for the making of a decision by the prescribed officer in respect of a disciplinary charge, including the entitlement of the subject officer under s 7.8 to have legal representation for the process.  There is still no requirement for the prescribed officer to maintain a record but there is the provision in s 7.26 for the subject officer to give a written submission and other material to show why disciplinary action should not be taken in relation to the disciplinary charge and, if the decision is that the disciplinary charge is proved, the provision in s 7.29 for the subject officer to give any written submission and other materials to the prescribed officer for the purpose of making the decision on that matter.  That means there is a record of what was put before the prescribed officer for the purpose of making these decisions.  Unlike the absence of the obligation upon the original decision-maker to give reasons that was a significant factor in reaching the conclusion in Aldrich that the rehearing was on the merits rather than on the basis of error, the prescribed officer under division 4 of part 7 must provide written reasons for each of the decisions made in the disciplinary proceeding.
40. [40]
    The legislative changes effected by the replacement of part 7 of the Police Service Act in 2019 and the provision for an appeal process from the Tribunal’s review of the decision made by the prescribed officer under division 4 of part 7 results in a structure for the making of the decision by the original decision-maker and the review under s 219Q of the CC Act that is significantly different to that which resulted in the conclusion in Aldrich about the nature of the appeal by way of rehearing by the misconduct tribunal.  Even though the observations about the nature of the rehearing under s 219H in Gunter were obiter dicta, they are applicable to the interpretation of the same words in s 219Q.  That means that the nature of the review under s 219Q is not a fresh hearing on the merits as provided for in s 20 of the QCAT Act.  Section 219Q therefore prevails over s 20 of the QCAT Act.
41. [41]
    One qualification to the rehearing under s 219Q being dependent on error in the decision of the original decision-maker is the circumstance where leave is given pursuant to s 219Q(2) to adduce fresh, additional or substituted evidence.  Where there was otherwise no error asserted in the original decision, the review undertaken pursuant to s 219Q(3), where leave to adduce new evidence is given, is effectively on the basis of whether the new evidence would have altered the decision of the original decision-maker.
42. [42]
    As the answer to the question that is proposed by the respondents is primarily directed at s 219Q(1), the question of law should be answered substantially in the terms sought by the respondents.

Conclusion

43. [43]
    The question of law referred to this Court by the Tribunal should be answered as follows: The Tribunal’s review power under s 219Q(1) of the Crime and Corruption Act 2001 (Qld) is predicated on there being first shown legal, factual or discretionary error in the decision below.