Section 27 of the Police Act 1998 is one sentence long, and it is headed “No right to appeal”.
Section 27
The Commissioner’s decision in respect to the finding of guilt and in respect to penalty for serious disciplinary charges is final.
There is no appeal to a court, to a tribunal, to the Minister, or to any external body. This differs sharply from the position of an ordinary public servant, and from the appeal to the Minister available under statutes such as section 40 of the Investment Promotion Act 1992.
The Act creates its own closed system, made possible because section 7(3) constitutes the Force a State Service under section 188 of the Constitution with its own discipline framework.
Three things that survive section 27
| Remedy | Availability |
|---|---|
| Internal review — s 26(5) | Only where the penalty was imposed by a disciplinary officer, within 7 days |
| Second officer’s review — s 25(4) | Where the Commissioner does not accept a “not sustained” report — the second recommendation is accepted without further formality |
| Judicial review | In the National Court, under Order 16 of the National Court Rules |
Section 26(5) allows a review to the Commissioner only where the penalty was imposed by a disciplinary officer.
But under section 25(2), penalties for serious offences are imposed by the Commissioner, on the disciplinary officer’s report. So in the ordinary serious case there is no internal review at all — section 27 applies directly.
Where a review is available, section 26(9) allows the Commissioner on confirmation to increase or otherwise vary the penalty. The same applies to minor offences under section 22(8).
Judicial review is not excluded
A provision making an administrative decision final prevents an appeal on the merits. It does not, on established principle, remove the National Court’s supervisory jurisdiction to review the legality of the decision.
That jurisdiction is reinforced by section 155(4) of the Constitution, under which the National Court has an inherent power to make such orders as are necessary to do justice, and by section 57, which allows application for enforcement of guaranteed rights.
- Breach of natural justice. Section 59 of the Constitution makes the principles of natural justice part of the underlying law, requiring the decision-maker to act fairly and be seen to act fairly. Candidates include:
- Failure to furnish the charge promptly — s 23(3)(a);
- Failure to supply requested reports — s 23(3)(b);
- Failure to supply a later report and allow reply — s 24(4);
- Deciding before the 14-day reply period expired.
- Failure to comply with the statutory scheme. An investigating officer who laid the charge, or who was not of superior rank, contrary to s 24(2). A penalty imposed where the disciplinary officer did not find the charge sustained, contrary to s 25(2). A referral to a second officer connected with the first recommendation, contrary to s 25(4).
- Penalty outside the Act. A penalty not listed in section 26(1), or transfer of locality imposed on a Special Constable contrary to s 26(3).
- Unreasonableness — a penalty so disproportionate that no reasonable decision-maker could have imposed it.
- Bias — actual or apprehended, in the investigating officer or the Commissioner.
It will not re-decide whether the member committed the offence, and it will not substitute a lesser penalty because the court would have imposed one. The remedy is ordinarily to quash the decision and remit the matter, not to determine it.
Applications for leave under Order 16 must also be brought promptly.
For a member facing a serious charge
- Engage fully with the process — because it is the only process. Request the reports under s 23(3)(b), request an explanation of the charge under s 23(3)(a), and reply within the 14 days.
- Keep the record. Note when the charge was served, when reports were requested and received, and what was supplied. Those dates are the material of any later judicial review.
- Insist on section 24(4). If material appears that you have not seen, ask for it in writing and reply to it.
- Consider the section 26(5) review carefully where it is available — the penalty can increase.
- Take advice early. Once the Commissioner has decided, section 27 leaves only judicial review.
Where the member is also facing criminal proceedings, see sections 32 to 34. On suspension, note that a suspension must be lifted immediately if the charge is not sustained.
Sources
- Police Act 1998 — ss 22–28, 32–34
- Constitution — ss 37, 57, 59, 155(4), 188
Before relying on anything here, read the current text of the Police Act 1998 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.