Willmott v Carless

This case has resolved any uncertainty about the nature of a review under s 219Q(1) Crime and Corruption Act 2001 (“CC Act”). Whilst the text of s 219Q(1) refers to the nature of the hearing as being a “review” rather than an “appeal” which could suggest that the nature of a review was intended to be a fresh hearing on the merits consistent with s 20 Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), this was not determinative. The text of s 219Q supported that a “review by way of rehearing” was akin to an appeal by way of rehearing which necessitates that the party bearing the onus demonstrate that the original decision was affected by legal, factual or discretionary error. The question of law referred to the Court of Appeal was answered accordingly.

Mullins P, Flanagan and Boddice JJA

14 June 2024

Background

The appellant is a police officer (the “police officer”). [1]. The first respondent is an Assistant Commissioner of the Queensland Police Service (the “decision-maker”). [1]. The decision-maker made the following police disciplinary decisions concerning the police officer under the Police Service Administration Act 1990 (the “PSA Act”): finding that a disciplinary charge had been substantiated and imposing a disciplinary sanction (together, the “original decisions”). [1]. The police officer applied to the Queensland Civil and Administrative Tribunal (the “Tribunal”) for a review of the original decisions (the “review proceeding”). [1]. The Crime and Corruption Commission elected to become a party to the review proceeding: s 219R(2) CC Act. [1]. The Tribunal member referred the following question of law to the Court of Appeal pursuant to s 118(1) QCAT Act:

“On the proper construction of s 20 of the Queensland Civil and Administrative [Tribunal] Act 2009 and s 219Q of the Crime and Corruption Act 2001, on the Tribunal’s review of the [original decision] 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?”. [2].

The original decisions were made after the commencement of the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 (the “PSA Amending Act”). [4], [40]. As a consequence, when making the original decisions the police officer was, by implication, entitled to be represented by a lawyer: s 7.8 PSA Act. [5]. The police officer was also entitled to give the decision-maker a written submission and other materials prior to disciplinary action being taken or a disciplinary sanction being imposed: ss 7.26 and 7.29 PSA Act. [5]–[6]. The decision-maker must give reasons: s 7.28(2)(b) PSA Act. [5]. As an “aggrieved person” the police officer was entitled to apply for a review of the original decisions under the CC Act: ss 219O(1), 219P(1) CC Act. [9]–[10]. The source of the Tribunal’s review jurisdiction is s 219Q CC Act which provides:

“219Q QCAT to decide review on evidence before decision maker

(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—

(a)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

(b)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—

(a)by way of rehearing on the original evidence; and

(b)on the new evidence adduced”. [11].

The Tribunal can be conferred original, review or appeal jurisdiction either under the QCAT Act or an enabling Act (e.g. the CC Act): s 9 QCAT Act. [15]. 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: s 17(1) QCAT Act. [15]. An enabling Act when conferring review jurisdiction may state the Tribunal’s functions in the jurisdiction, which may “add to, otherwise vary, or exclude functions” stated in the QCAT Act. [15]. Where an enabling Act provides for the Tribunal’s functions in jurisdiction conferred by the enabling Act any “modifying provision” in an enabling Act prevails over provisions in the QCAT Act to the extent of any inconsistency: s 7(2) QCAT Act. [17]. The QCAT Act prescribes the general nature of Tribunal’s review jurisdiction in s 20 which provides:

“20 Review involves fresh hearing

(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”. [18].

Whether the review was by way of rehearing or a fresh hearing on the merits

The question of law had been referred to the Court of Appeal in circumstances where there appeared to be an inconsistency between two decisions in relation to provisions which were either identical or very similar to s 219Q CC Act: Aldrich v Ross [2000] QCA 501; [2001] 2 Qd R 235 (which suggested that the nature of the review was a fresh hearing on the merits); and Gunter v Assistant Commissioner Wilkins [2021] QCA 274 (which suggested that the nature of the review was akin to an appeal by way of rehearing): see [3], [26]–[37]. Aldrich was decided in relation to the, now repealed, Misconduct Tribunals Act 1997: see [26]. A significant feature of the reasoning in Aldrich was the absence of any obligation on the part of the decision-maker to give reasons which would deny proper scrutiny if a review required identification of a legal, factual or discretionary error: see [33]–[34].

The fact that s 219Q characterises the nature of the rehearing as a “review” rather than an “appeal” was not determinative. [38]. The text of s 219Q CC Act provides for a “review by way of rehearing” and fresh, additional or substituted evidence may only be adduced with leave. [38], [41]. Aldrich had been decided in a different legislative context. [39]–[40]. Whilst there remains no requirement for the decision-maker to maintain a record of proceedings, the decision-making process which now applies by virtue of the PSA Amending Act provides that a police officer is entitled to make a written submission and the decision-maker must provide written reasons. [39]–[40]. A review under s 219Q(1) CC Act was akin to an appeal by way of rehearing. [42]–[43]. Therefore, the review is concerned with the correction of error. [42]–[43]. A legal, factual or discretionary error must be demonstrated. [42]–[43].

Disposition

The question of law was answered as follows: “The Tribunal’s review power under s 219Q(1) [CC Act] is predicted on there being first shown legal, factual or discretionary error in the decision below.”

D Kerr