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Crime and Corruption Commission v Barnett

 

[2017] QCA 320

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Crime and Corruption Commission v Deputy Commissioner Barnett & Anor [2017] QCA 320

PARTIES:

CRIME AND CORRUPTION COMMISSION
(appellant)
v
DEPUTY COMMISSIONER OF POLICE, ROSS BARNETT
(first respondent)
CRAIG HOPKINS
(second respondent)

FILE NO/S:

Appeal No 4008 of 2017

QCAT No 231 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 118(1) Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal

DELIVERED ON:

22 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2017

JUDGES:

Gotterson and McMurdo JJA and Bond J

ORDERS:

  1. The question referred by the President of the Queensland Civil and Administrative Tribunal to this Court for its determination, namely:

Upon the proper construction of section 7.4(3) of the Police Service Administration Act 1990 and regulation 5 of the Police Service (Discipline) Regulations 1990, was it within the First Respondent’s power to suspend a sanction of dismissal imposed on the Second Respondent subject to the conditions specified in the First Respondent’s order made on 21 December 2015?

is answered: Yes.

  1. The appellant is to pay the second respondent’s costs of and incidental to the reference on the standard basis.

CATCHWORDS:

STATUTES – SUBORDINATE LEGISLATION – CONSTRUCTION – GENERALLY – where the first respondent imposed a sanction of dismissal upon the second respondent for misconduct pursuant to the Police Service (Discipline) Regulations 1990 (Qld) (“the Regulations”) – where the first respondent further ordered the sanction of dismissal be suspended provided that some four conditions were thereafter met – where reg 12 grants a power to a prescribed officer to suspend a disciplinary sanction made under the Regulations subject to the disciplined officer agreeing to undertake certain conditions – where compliance with the conditions of suspension under reg 12 rescinds the disciplinary sanction from the officer’s record – where the conditions imposed by the first respondent were inconsistent with reg 12 – where the first respondent relied on the power under reg 5 to discipline in a manner that “appears to… be warranted” – whether reg 5 authorises the commissioner or a deputy commissioner to conditionally suspend an officer’s dismissal without regard to reg 12

Police Service Administration Act 1990 (Qld), s 7.4

Police Service (Discipline) Regulations 1990 (Qld), reg 5, reg 6, reg 7, reg 8, reg 10, reg 12

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, cited

Crime and Misconduct Commission v McLennan & Ors [2008] QSC 23, approved

Francis v Crime and Corruption Commission & Anor [2015] QCA 218, cited

Irwin v Stewart (Commissioner of Police) & Anor [2015] QSC 350, cited

Lee v Crime and Corruption Commission & Anor [2014] QCATA 326, not applied

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, cited

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50, cited

Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21, cited

COUNSEL:

M J Copley QC, with A C Freeman, for the appellant

M D Nicolson for the first respondent

M Black for the second respondent

SOLICITORS:

Crime and Corruption Commission for the appellant

Queensland Police Service Legal Unit for the first respondent

Queensland Police Union Legal Group for the second respondent

  1. GOTTERSON JA:  On the 21 April 2017, the President of the Queensland Civil and Administrative Tribunal (“Tribunal”) referred, pursuant to s 118(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the following question of law to this Court for its determination:

Upon the proper construction of section 7.4(3) of the Police Service Administration Act 1990 and regulation 5 of the Police Service (Discipline) Regulations 1990, was it within the First Respondent’s power to suspend a sanction of dismissal imposed on the Second Respondent subject to the conditions specified in the First Respondent’s order made on 21 December 2015?

The proceeding in which the question from law has arisen

  1. The referral to this Court describes the proceeding in which this question of law has arisen. It states the following facts necessary to enable the Court to decide the referred question:[1]

“2. The First Respondent is a Deputy Commissioner of the Queensland Police Service (the Deputy Commissioner).

  1. The Second Respondent is a Constable of the Queensland Police Service (the Officer).
  1. On 11 September 2015, the Deputy Commissioner issued a Disciplinary Hearing Notice which alleged one count of misconduct against the Officer.  The Officer admitted the allegation of misconduct that was made against him.
  1. On 21 December 2015, the Deputy Commissioner formally found that the allegation of misconduct made against the Officer was substantiated.
  1. The First Respondent found the Second Respondent, guilty of a disciplinary charge of misconduct contrary to section 1.4 of the Police Service Administration Act 1990, section 9(1)(f) of the Police Service (Discipline) Regulations 1990 and sections 1.4, 2, 4, 10, 12 and 13 of the Standard of Practice.
  1. On 21 December 2015, the Deputy Commissioner issued a “Notice of Formal Finding”, in which he made the following order:

Having carefully considered all aspects of your conduct I order that you be dismissed from the Service and that the dismissal be suspended on the condition that:

  • You do not commit any acts of misconduct for a period of two years from the date this sanction is imposed;
  • You perform 50 hours of community service in the next 12 months;
  • You meet with a Human Services Officer (HSO) once a month for the next six months or such longer that is recommended by the HSO; and
  • Are eligible to progress to Constable pay point 1.3 subject to normal industrial arrangements on today’s date, with future progressions occurring on the anniversary of today’s date.

(s.5 Police Service (Discipline) Regulations 1990)

  1. Following this finding, pursuant to section 7.4 of the Police Service Administration Act 1990 and regulation 5 of the Police Service (Discipline) Regulations 1990, the First Respondent imposed a sanction of dismissal upon the Second Respondent.
  1. The First Respondent further ordered that the sanction of dismissal be suspended pursuant to regulation 5 as follows:

Having carefully considered all aspects of your conduct I order that you be dismissed from the Service and that the dismissal be suspended on the condition that:

  • You do not commit any acts of misconduct for a period of two years from the date this sanction is imposed;
  • You perform 50 hours of community service in the next 12 months;
  • You meet with a Human Services Officer (HSO) once a month for the next six months or such longer that is recommended by the HSO; and
  • Are eligible to progress to Constable pay point 1.3 subject to normal industrial arrangements on today’s date, with future progressions occurring on the anniversary of today’s date.

(s.5 Police Service (Discipline) Regulations 1990)

  1. In a statement of “Findings and Reasons”, also issued on 21 December 2015, the Deputy Commissioner said of his decision:

To be clear, this sanction is imposed under section 5 of the Regulations.  I have not decided that you should be dismissed and then suspended the sanction under section 12 of the Regulations.  The appropriate sanction for your conduct is a suspended dismissal with conditions to address your behaviour and prevent the recurrence of any similar misconduct.  This sanction not only sends a message that the conduct is totally unacceptable, it will also serve as a lingering reminder for you to act appropriately in the future.

  1. On 24 December 2015, the Crime and Corruption Commission applied to the Queensland Civil and Administrative Tribunal (the Tribunal) for a review of the Deputy Commissioner’s decision pursuant to section 219G of the Crime and Corruption Act 2001.  The Crime and Corruption Commission’s application pleads that:

The suspended sanction condition imposed by the First Respondent that “you do not commit any acts of misconduct for a period of two years from the date this sanction is imposed” is contrary to section 12 of the Police Service (Discipline) Regulations 1990.

  1. The Crime and Corruption Commission’s application is pending before the Tribunal.”

The statutory context

  1. Part 7 of the Police Service Administration Act 1990 (Qld) (“the Act”) is concerned with internal command and discipline within the Queensland Police Service.  Section 7.4 provides:

“(1)In this section—

officer, in relation to a person liable to disciplinary action, includes a police recruit.

prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.

QCAT information notice means a notice complying with the QCAT Act, section 157(2).

  1. An officer is 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.

(2A)If the prescribed officer—

  1. decides an allegation of misconduct brought against the officer; or
  1. when deciding an allegation of breach of discipline brought against the officer, finds that misconduct is proved against the officer;

the commissioner must give a QCAT information notice to the officer and the Crime and Corruption Commission for the decision or finding within 14 days after the making of the decision or finding.

  1. Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following—
  1. dismissal;
  1. demotion in rank;
  1. reprimand;
  1. reduction in an officer’s level of salary;
  1. forfeiture or deferment of a salary increment or increase;
  1. deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.
  1. Every order made by way of disciplinary action takes effect in law and is to be given effect.
  1. To remove any doubt, it is declared that a reference in the QCAT Act, section 157(2) to a decision includes a reference to a finding.”
  1. A number of terms and expressions which are used in s 7.4 are defined in the definitional section, s 1.4. “Disciplinary action” means “action taken for misconduct, corrupt conduct or a breach of discipline”. By virtue of sub-s (2), s 7.4 applies where the prescribed officer considers the officer’s conduct to be misconduct or a breach of discipline. The term “misconduct” is defined in s 1.4 as being:

“conduct that –

  1. is disgraceful, improper or unbecoming an officer; or
  1. shows unfitness to be or continue as an officer; or
  1. does not meet the standard of conduct the community reasonably expects of a police officer.”
  1. As the references in ss 7.4(1) and (2) to prescription by regulation anticipate, s 10.28 of the Act empowers the Governor in Council to make regulations for the purposes of the Act with respect to a range of matters including the institution and conduct of disciplinary action within the police service.[2]  The Police Service (Discipline) Regulations 1990 (“the Regulations”) were made pursuant to that power.
  1. Pursuant to reg 9(1)(f), misconduct is stated to be a ground for disciplinary action for the purposes of s 7.4 of the Act. The term “prescribed officer” is defined in reg 4(1). It is unnecessary to refer to its terms for present purposes.
  1. It will be recalled that the prescribed officer here, the first respondent, is a deputy commissioner of police. Regulation 5 is applicable to the commissioner and deputy commissioners. It legislates for their disciplinary powers as follows:

“Where the commissioner or a deputy commissioner has formed the opinion that an officer should be disciplined, the commissioner or deputy commissioner may order that the officer be disciplined in a manner that appears to the commissioner or deputy commissioner to be warranted.”

  1. Regulations 6, 7 and 8 which follow, relate to the disciplinary powers of an assistant commissioner, of a commissioned officer, and of a noncommissioned officer respectively.  Those provisions confer disciplinary powers which are more limited than those conferred on the commissioner or a deputy commissioner in that for each of the three classes of office holder, one or more of the categories of disciplinary sanction listed in reg 10 may not be exercised.[3]
  1. Regulation 10 is headed “Disciplines that may be imposed”. It provides as follows:

“Subject to regulations 11 and 12 (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3) of the Act or regulation 5) the disciplinary sanctions that may be imposed under these regulations are the following—

  1. cautioning or reprimand;
  1. a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units;
  1. a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank);
  1. forfeiture or deferment of a salary increment or increase;
  1. a reduction in the officer’s rank or classification;
  1. dismissal from the police service.”
  1. It remains to mention reg 12. It is headed “Sanction may be suspended in certain cases”. It contains the following provisions:

“(1) Where a prescribed officer imposes any disciplinary sanction under these regulations, the officer may suspend the effect of the disciplinary sanction subject to the officer upon whom the disciplinary sanction is being imposed agreeing to—

 perform voluntary community service; or

 undergo voluntary counselling, treatment or some other program designed to correct or rehabilitate;

designated by the prescribed officer and which is relevant to the act or omission which led to the disciplinary action being taken.

  1. Where an officer who has made an agreement pursuant to subregulation (1)—

 successfully completes the voluntary community service or counselling, the disciplinary sanction is rescinded and it is to be taken that the sanction was never imposed;

 fails to successfully complete the voluntary community service or counselling, the disciplinary sanction is to be implemented.”

  1. For completeness, I note that neither the word “disciplines” nor the term “disciplinary sanction” which are used throughout the Regulations, are defined for their purposes.

How the referred question arises

  1. Paragraphs 7 and 9 of the facts disclose that the second respondent’s dismissal from the police service was ordered to be suspended provided that some four conditions were thereafter met. Further, it is evident from paragraph 10 of the facts that the first respondent deputy commissioner intended to engage the powers conferred by reg 5 in order to impose sanction of a suspended dismissal.  He was not intending to dismiss in exercise of the reg 5 powers and separately to suspend the dismissal pursuant to reg 12.
  1. Clearly, the first respondent did not act in accordance with reg 12 to order the suspension.  He did not seek or obtain the agreement of the second respondent to the two matters set out in reg 12(1).  Moreover, the four conditions imposed extend beyond those two matters.  One consequence of this is that the second respondent could never attain the benefit of a rescission pursuant to reg 12(2).
  1. As paragraph 11 of the facts states, the appellant, Crime and Corruption Commission, applied to the Tribunal for a review of the first respondent’s decision pursuant to s 219G of the Crime and Corruption Act 2001 (Qld).  In its application to the Tribunal, the appellant submitted that the imposition of the first condition, namely, “you do not commit any acts of misconduct for a period of two years from the date this sanction is imposed” is contrary to reg 12.
  1. It may be accepted that that condition does not align with either of the two matters set out in reg 12(1) to which an officer may be requested to agree. That is unremarkable given that reg 12 was not relied upon by the first respondent to suspend the dismissal. The appellant’s submission to the Tribunal rather begs the relevant question, namely, whether the Act and the Regulations otherwise authorise the conditionally suspended dismissal that was imposed.  The referred question in effect asks that question.
  1. The appellant’s submissions: The appellant submitted that s 7.4(3) of the Act is to be interpreted as merely stating examples of disciplines that may be imposed when a ground for disciplinary action is established.  It is not to be understood as conferring a broad discretion to impose “any discipline or sanction that a prescribed officer could conceive of”.[4]  Its limited role as a statement of examples is illustrated, it was submitted, by the omission from it of other sanctions referred to in reg 10, notably cautioning[5] and reduction in classification.[6]
  1. According to the appellant, a further illustration of the limited role intended for s 7.4(3) is the graded restrictions on sanctions that might be imposed by an assistant commissioner, a commissioned officer and a noncommissioned officer respectively for which regs 6, 7 and 8 provide.  The gradations are referenced to disciplinary sanctions listed in reg 10 and not to a more extensive range of sanctions.[7]
  1. As to reg 5, the appellant submitted that it did “no more than preserve to” the commissioner and a deputy commissioner the power to impose any of the disciplinary sanctions listed in reg 10.[8]  Such a sanction might be suspended pursuant to reg 12 only.  That follows, it was argued, from the express provision in reg 10 that it applies subject to reg 12 and from the express provision in reg 12 that it applies “where a prescribed officer imposes any disciplinary sanction under these regulations”.[9]  Regulation 5 was so linked to reg 12 that it could not operate independently of it.[10]
  1. In addition, the appellant referred to doubt expressed by the Hon J B Thomas AM QC, as a Judicial Member of the Tribunal, in Lee v Crime and Corruption Commission & Anor[11] that reg 5 authorises the ordering by a deputy commissioner of “a virtually unconditional suspension” of a demotion.
  1. The appellant submitted that the referred question should be answered “No”.
  1. The respondents’ submissions: Both respondents submitted that the referred question should be answered “Yes”.  As there are common themes to their respective submissions, it is convenient to summarise them together.
  1. The respondents submit that read together, ss 7.4(2) and (3) of the Act vest power, if not expressly then impliedly, in a “prescribed officer” to impose a discipline “by way of disciplinary action”. The definition of “prescribed officer” in s 7.4(1) contemplates that different classes of prescribed officer will be authorised by regulations to take disciplinary action depending on the circumstances of particular cases.
  1. Section 7.4 of the Act does not expressly limit the “range of disciplines” which may be imposed by disciplinary action. It assumes, as a starting point, that there will be at least one class of “prescribed officer” whose powers are limited only by the proper construction of s 7.4 itself and by the usual limits upon the exercise of administrative power.
  1. Regulation 5 recognises, it is submitted, that there is no restriction on the exercise of power under s 7.4 by the commissioner or a deputy commissioner. Nor does reg 5 itself purport to impose such a restriction.  It authorises the commissioner or a deputy commissioner to order that an officer be disciplined “in a manner that appears to [them] to be warranted”.
  1. The role of reg 10, the respondents contend, is auxiliary to regs 6, 7 and 8 thereof, each of which refers to it. The list of disciplinary sanctions in reg 10 is the point of reference for identifying the disciplinary sanctions that may be imposed by the classes of prescribed officer to which those sections respectively apply.
  1. By contrast, reg 5 does not refer to reg 10. Moreover, the express reservation in parenthesis in reg 10 not only acknowledges the wide range of disciplines available to the commissioner or a deputy commissioner under s 7.4(3) of the Act and reg 5, but also indicates that the section is not intended to limit that range.
  1. Both respondents submitted that Daubney J had correctly decided the issue raised by the referred question in Crime and Misconduct Commission v McLennan & Ors.[12]  Significantly, his Honour’s decision has been approved by this Court in Francis v Crime and Corruption Commission & Anor.[13]
  1. Finally, the respondents submit that the range of disciplines that the commissioner or a deputy commissioner might impose pursuant to s 7.4(3) of the Act and or reg 5 is sufficiently ample to authorise the first respondent, as a deputy commissioner, to discipline misconduct by ordering a dismissal suspended upon compliance with conditions of the kind imposed here, if it appears to the first respondent that disciplining in that manner is warranted.
  1. Discussion: Section 7.4 of the Act is a provision which does not, by itself, enact a comprehensive framework for disciplinary action.  It envisages the making of regulations which are to provide substantial features of the framework.  Notable amongst them are the authorisation of different classes of prescribed officers to undertake disciplinary action according to the circumstances of the case[14] and the prescription of grounds for disciplinary action.[15]
  1. Although the section does not in terms confer a power on a prescribed officer so authorised to take disciplinary action, such a power is, I think, clearly implied in s 7.4.  That is to say, the power of a prescribed officer to take disciplinary action in those circumstances derives from the Act.  It is not independently sourced in regulations made under the Act.
  1. In my view, s 7.4 also contemplates that there is to be available to prescribed officers a range of disciplines which they may impose as they consider the circumstances warrant.  The availability to the commissioner, in particular, of an inherently flexible range of disciplines aligns with the commissioner’s broad responsibility for the efficient and proper administration, management and functioning of the police service in accordance with law.[16]  The definition of “prescribed officer”, however, anticipates that more limited ranges of disciplines are to be available to particular classes of prescribed officers.
  1. It is within this context that I turn to s 7.4(3).  In oral submissions, senior counsel for the appellant contended that the six disciplines listed in it state exhaustively the range of disciplines available to prescribed officers of whatever class.  The prescribed officer may impose “whatever combination of disciplines he sees fit within the range set out in paragraphs (a) to (f) of s 7.4(3)”, but no more.[17]
  1. I am unable to accept that interpretation of s 7.4(3).  The opening phrase of the section, “without limiting the range of disciplines that may be imposed”, precludes it.[18]  That phrase signals that the section is not to limit the range of disciplines to those listed in it.  Secondly, the words which follow, namely “such disciplines may consist of”, are apt to signify that the list which follows is not intended to be exhaustive of the disciplines that might be imposed.
  1. Regulation 5 aligns with s 7.4 of the Act.  It is a restatement of the range of disciplinary powers available to the commissioner and a deputy commissioner that s 7.4 impliedly provides they are to have.  Importantly, reg 5 is not controlled in any aspect of its operation by reg 10.  That that is so is made abundantly clear by the words in parenthesis in reg 10.  I respectfully agree with the observations of McMurdo J (as his Honour then was) in Irwin v Stewart (Commissioner of Police) & Anor[19] to the effect that, for the commissioner and a deputy commissioner, the range of disciplines available is not limited to those listed in reg 10.
  1. The role that reg 10 has is auxiliary to regs 6, 7 and 8.  It is a point of reference for those sections in stipulating, as the Act contemplates that regulations will do, the range of disciplinary sanctions available to each of the tiered classes of prescribed officer for which they provide.  Unlike those sections, reg 5 is not referenced to reg 10.
  1. Regulation 12 does not impact upon the range of disciplines available to the commissioner or a deputy commissioner.  It does not supplement the range by conferring a power to suspend the operation of the discipline that was not otherwise available within that range.  Nor does it exclude the power to suspend otherwise available within the range or provide a substitute for it.
  1. Regulation 12 applies where a prescribed officer imposes a “disciplinary sanction” under the Regulations. That term is not defined. However, it is used in reg 10 which is, of course, linked to regs 6, 7 and 8, but not reg 5.  It is because of this linkage that, to my mind, reg 12 is best understood as providing a power to suspend the effect of a disciplinary sanction to the classes of prescribed officer to which regs 6, 7 and 8 respectively apply.
  1. Apart from this syntactical feature, there is a more broadly based policy consideration that favours this interpretation. It will be recalled that, by virtue of reg 12(2), where there is compliance with the agreement entered into by the disciplined officer, the disciplinary sanction is both rescinded and taken to have been never imposed.
  1. Were the power of the commissioner or a deputy commissioner to suspend the operation of the discipline limited to one conferred by reg 12, then the commissioner or a deputy commissioner would be unable to suspend a preferred discipline which, having regard to the seriousness of the misconduct in a given case, the commissioner or the deputy commissioner concerned considers ought not have the benefit of rescission and being taken as if had never been imposed.  In this regard, I respectfully agree with the observations of Daubney J in McLennan.[20]
  1. I would add that I do not share the doubt expressed by the Hon J B Thomas AM QC in Lee that a prescribed officer acting under reg 5 may suspend a discipline other than in accordance with reg 12.  As I have explained, I do not interpret reg 12 as regulating the taking of disciplinary action by the commissioner or a deputy commissioner.  Further, in my view, the range of disciplines available to the commissioner or a deputy commissioner is, in the first place, conferred by s 7.4 of the Act.  It is not conferred by reg 5 alone.
  1. Conclusion: For these reasons, I would answer the referred question “Yes”.  The second respondent has asked for an order for costs in his favour.  I think it appropriate that the appellant pay his costs on the standard basis.

Orders

  1. I would propose the following orders:
  1. The question referred by the President of the Queensland Civil and Administrative Tribunal to this Court for its determination, namely:

Upon the proper construction of section 7.4(3) of the Police Service Administration Act 1990 and regulation 5 of the Police Service (Discipline) Regulations 1990, was it within the First Respondent’s power to suspend a sanction of dismissal imposed on the Second Respondent subject to the conditions specified in the First Respondent’s order made on 21 December 2015?

is answered: Yes.

  1. The appellant is to pay the second respondent’s costs of and incidental to the reference on the standard basis.
  1. McMURDO JA:  In my opinion, the question of law which has been referred to this Court should be answered in the negative.  The power of the Deputy Commissioner to suspend the dismissal of the second respondent derived from, and was subject to the limitations of, regulation 12 of the Police Service (Discipline) Regulations 1990 (Qld) (“the Regulations”).  The conditions specified in the first respondent’s order, which purported to suspend the dismissal of the second respondent, were inconsistent with regulation 12 and were thereby beyond power.
  1. The internal command and discipline of serving police officers in Queensland is governed by Part 7 of the Police Service Administration Act 1990 (Qld) (“the Act”).  In particular, s 7.4 provides as follows:

7.4 Disciplinary action

  1. In this section—

officer, in relation to a person liable to disciplinary action, includes a police recruit.

prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.

QCAT information notice means a notice complying with the QCAT Act, section 157(2).

  1. An officer is 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.

(2A)If the prescribed officer—

  1. decides an allegation of misconduct brought against the officer; or
  1. when deciding an allegation of breach of discipline brought against the officer, finds that misconduct is proved against the officer;

the commissioner must give a QCAT information notice to the officer and the Crime and Corruption Commission for the decision or finding within 14 days after the making of the decision or finding.

  1. Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following—
  1. dismissal;
  1. demotion in rank;
  1. reprimand;
  1. reduction in an officer’s level of salary;
  1. forfeiture or deferment of a salary increment or increase;
  1. deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.
  1. Every order made by way of disciplinary action takes effect in law and is to be given effect.
  1. To remove any doubt, it is declared that a reference in the QCAT Act, section 157(2) to a decision includes a reference to a finding.”
  1. Two things should be noted about s 7.4. The first is that it speaks of disciplinary action being taken by a “prescribed officer”, a term which is not limited to the commissioner of police or a deputy commissioner.  The second is that the section is not a self-contained source of power to take disciplinary action.  It refers to a range of disciplines that may be imposed by a prescribed officer by way of disciplinary action,[21] but leaves it to “the regulations” to prescribe the grounds for that action.[22]  Necessarily, the disciplinary powers of a prescribed officer, including the commissioner or a deputy commissioner, derive, at least in part, from the Regulations.
  1. Those grounds for disciplinary action are prescribed by regulation 9(1) of the Regulations as follows:

“(1) For the purposes of section 7.4 or part 7A of the Act, the following are grounds for disciplinary action—

  1. unfitness, incompetence or inefficiency in the discharge of the duties of an officer’s position;
  1. negligence, carelessness or indolence in the discharge of the duties of an officer’s position;
  1. a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by, or caused to be issued by, the commissioner;
  1. a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned;
  1. absence from duty except—
  1. upon leave duly granted; or
  1. with reasonable cause;
  1. misconduct;
  1. conviction in Queensland of an indictable offence, or outside Queensland of an offence which, if it had have been committed in Queensland would have been an indictable offence.”
  1. The disciplinary powers of the commissioner or a deputy commissioner are expressed in regulation 5 as follows:

5 Disciplinary powers of the commissioner and a deputy commissioner

Where the commissioner or a deputy commissioner has formed the opinion that an officer should be disciplined, the commissioneror deputy commissioner may order that the officer be disciplined in a manner that appears to the commissioner or deputy commissioner to be warranted.”

  1. There is no reference to regulation 9 in regulation 5, whereas regulations 6, 7 and 8(1) refer to an officer being disciplined “on any ground referred to in regulation 9”. However, as I have said, according to s 7.4 the grounds for disciplinary action, whether taken by the commissioner, a deputy commissioner or another prescribed officer, are those as prescribed by a regulation, and regulation 9 is the only provision of that kind.
  1. Regulation 10 provides for disciplinary sanctions which may be imposed. Regulation 10 is as follows:

Disciplines that may be imposed

Subject to regulations 11 and 12 (and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner pursuant to section 7.4(3) of the Act or regulation 5) the disciplinary sanctions that may be imposed under these regulations are the following—

  1. cautioning or reprimand;
  1. a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units;
  1. a reduction in the officer’s level of salary or wages (not being a reduction to a level outside that applicable to an officer of that rank);
  1. forfeiture or deferment of a salary increment or increase;
  1. a reduction in the officer’s rank or classification;
  1. dismissal from the police service.”
  1. Not every disciplinary sanction which is listed in regulation 10 may be imposed by every prescribed officer. For example, an assistant commissioner may not impose the disciplinary sanction of dismissal. That limitation comes from regulation 6 which is as follows:

Disciplinary powers of an assistant commissioner

Where an assistant commissioner has formed the opinion that an officer should be disciplined on any ground referred to in regulation 9, the assistant commissioner may order that the officer be disciplined in a manner that appears to the assistant commissioner to be warranted, but in no case shall an assistant commissioner be entitled to impose the disciplinary sanction referred to in regulation 10(f).”

  1. Similarly, regulation 7 provides that a commissioned officer may not impose the sanctions referred to in sub-regulations 10(c) to 10(f) and regulation 8(1) provides that a non-commissioned officer may impose only the sanction of a caution or reprimand, under regulation 10(a).
  1. Consequently, it is only a commissioner or a deputy commissioner who may make an order for the officer’s dismissal from the police force. It is to be noted that such an order, within each of regulations 6, 7 and 8, is referred to as “the disciplinary sanction referred to in regulation (or sub-regulation) 10(f)”, as it is within regulation 10 also.
  1. Because only a commissioner or a deputy commissioner may impose that disciplinary action of a dismissal, the subject of regulation 10(f), it can be seen that regulation 10 applies to all prescribed officers, including the commissioner or a deputy commissioner.  That application is confirmed by the words “and without limiting the range of disciplines that may be imposed by the commissioner or a deputy commissioner” (at the commencement of regulation 10).
  1. An imposition of a disciplinary sanction under regulation 10 is subject to regulation 12.  Subject to the argument for the respondents which I will discuss, this indicates that the imposition of the sanction of a dismissal is subject to regulation 12.
  1. Regulation 12 is as follows:

Sanction may be suspended in certain cases

  1. Where a prescribed officer imposes any disciplinary sanction under these regulations, the officer may suspend the effect of the disciplinary sanction subject to the officer upon whom the disciplinary sanction is being imposed agreeing to—

 perform voluntary community service; or

 undergo voluntary counselling, treatment or some other program designed to correct or rehabilitate;

designated by the prescribed officer and which is relevant to the act or omission which led to the disciplinary action being taken.

  1. Where an officer who has made an agreement pursuant to subregulation (1)—

 successfully completes the voluntary community service or counselling, the disciplinary sanction is rescinded and it is to be taken that the sanction was never imposed;

 fails to successfully complete the voluntary community service or counselling, the disciplinary sanction is to be implemented.”

  1. Regulation 12 confers a power to suspend the effect of a disciplinary sanction. It does so where “a prescribed officer imposes any disciplinary sanction under these regulations”.  As I have noted, the term “disciplinary sanction” includes an order for dismissal (regulation 10(f)).  Regulation 12 refers to the imposition of a disciplinary sanction “under these regulations”.  As noted at the outset, s 7.4 of the Act provides for disciplinary action by a prescribed officer, but of itself is not a source of power to take disciplinary action, because such a power must be defined according to the grounds for action, and those grounds are prescribed only by the Regulations.  Consequently, regulation 12 cannot be thought to operate within some confined field, within which disciplinary sanctions are imposed under the Regulations, but outside of which there are sanctions which are imposed under the Act.
  1. The term “prescribed officer” is defined for the Regulations, including regulation 12, by regulation 4 as follows:

prescribed officer means, subject to subsection (2), an officer who—

  1. is authorised by these regulations to take disciplinary action in the circumstances of any case in question; and
  1. has formed the opinion that, in the case in question, an officer should be disciplined on any ground referred to in regulation 9.”
  1. Therefore, any of the officers, ranked from the commissioner down, referred to in regulations 5, 6, 7 or 8, is a prescribed officer and the meaning of the expression in the Regulations thereby corresponds with its defined meaning in s 7.4 of the Act.
  1. In the present case, the first respondent, a deputy commissioner, relevantly ordered that the second respondent be dismissed from the service, but that the dismissal be suspended on conditions that he not commit any acts of misconduct for a period of two years and that he perform 50 hours of community service “in the next 12 months”.
  1. Clearly that was not an order which was made according to regulation 12. It imposed a condition that the second respondent perform voluntary community service. But under regulation 12, a disciplinary sanction which is suspended becomes “rescinded” once the officer “successfully completes the voluntary community service”, after which the sanction is taken to have never been imposed. Under this order, the community service was to be performed within 12 months, but the suspension of the order was to continue for a further year, because the officer was not to commit any acts of misconduct for a period of two years.
  1. The first respondent explained this order, in a statement of “Findings and Reasons”, as follows:

To be clear, this sanction is imposed under section 5 of the Regulations.  I have not decided that you should be dismissed and then suspended the sanction under section 12 of the Regulations.”

  1. Evidently the first respondent considered that there were two powers of dismissal which were available to him, each of which included a power to suspend the dismissal. In his view, there a distinct power under the general terms of regulation 5. That view, for which the respondents contend, is supported by the judgment in Crime and Misconduct Commission v McLennan,[23] where Daubney J said:

[40] As to the first of these points, the applicant submitted that the circumstances in which the second respondent could suspend a sanction are provided for, and only provided for, in s 12 of the Regulations, which I have set out above. It was submitted that suspension of a sanction is conditional, and a sanction can only be suspended when the subject officer has agreed to perform voluntary community service or undergo counselling, treatment or some other program to correct or rehabilitate.

[41] This argument does not, however, take account of the broad discretion conferred on the second respondent, as a decision-maker, by both s 7.4 of the Act and Regulation 5. On an ordinary reading of those sections, and having regard to the purpose for which the sections were enacted, namely to provide for the maintenance of discipline within the Police Service, it seems to me that the discretion conferred on the decision-maker under Regulation 5 is sufficiently broad, on its face, to encompass a suspension of a sanction, if such a measure ‘appears ... to be warranted’ to the decision-maker.

[42] The applicant says, however, that this broad discretion is circumscribed by the provisions of s 12. That, in my view, involves a lack of appreciation of the object achieved by s 12 of the Regulations. Regulation 12(1) permits a relevant decision-maker to suspend the effect of a particular disciplinary sanction subject to the officer upon whom the sanction is being imposed agreeing to one or other of the reparatory or rehabilitative measures specified in s 12(1). Importantly, however, s 12(2) provides that, if the agreed community service or counselling is successfully completed, then ‘the disciplinary sanction is rescinded and it is to be taken that the sanction was never imposed’.

[43] Section 12 provides for something which would otherwise not be achieved, namely the legislative erasure of a sanction from an officer’s record upon that officer successfully completing the agreed rehabilitative program. In other words, s 12 provides for a specific form of suspension, on specific terms, and with a specific outcome. The fact that s 12 enables such a conditional suspension, with the result provided for in s 12(2), does not, in my view, mean that a decision-maker under s 5 is deprived of the general ability to suspend a sanction imposed.

[44] Accordingly, I reject the applicant’s argument that the ambit of the discretion conferred by s 5 of the Regulations is, so far as suspensions are concerned, circumscribed completely by s 12 of the Regulations.”

  1. With respect, I am unable to agree with that reasoning. It may be accepted that, if read alone, regulation 5 is in such broad terms that it might empower the commissioner or a deputy commissioner to dismiss an officer, but suspend the operation of that dismissal.  However, regulation 5 must be read in the context of the Regulations as a whole.  It is affected by the terms of regulation 10, which provides expressly a power of dismissal.  It is true that regulation 10 says that the specific disciplinary sanctions which are there listed are not the full range of those which may be imposed by the commissioner or a deputy commissioner.  But a dismissal of an officer is one of the sanctions which are specified in regulation 10.  The text of the Regulations do not suggest that there are two distinct powers of dismissal.  For example, there is no indication within the Regulations of what might be the factual basis for the exercise of one power as distinct from the other.
  1. Regulation 12 is in terms which confer a specific power, namely to suspend the effect of a disciplinary sanction, but with a limitation or condition placed on the exercise of that power. The power of suspension may be exercised only upon the condition that the officer concerned agrees to do one of the things described in regulation 12(1). The prescribed officer is not empowered to order that one of these things be done.  Rather, it is for the officer concerned to agree to do so.  On condition that the officer so agrees, the specific power of suspension of the effect of a disciplinary sanction may be exercised.
  1. Relevant to the construction of these provisions is the principle, often said to derive from Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, where Gavan Duffy CJ and Dixon J said:[24]

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

Similarly, in Leon Fink Holdings Pty Ltd v Australian Film Commission,[25] Mason J said:

“It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to that which was the subject of the special power.”

And in Saraswati v The Queen,[26] McHugh J referred to “[t]he principle that a statutory power, expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power”.

The principle was described by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[27]as follows:

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power", or are with respect to the same subject-matter, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.”

(Footnotes omitted).

In the terms of that passage, the ambit of the restricted power conferred by regulation 12 is “ostensibly wholly within the ambit of” the general power under regulation 5.

  1. As I have said, the specific power under regulation 12 is the power to suspend the effect of a disciplinary sanction, and the condition or limitation upon the exercise of that power is the agreement by the officer concerned to do one of the things specified in the regulation. Upon the application of the Anthony Hordern principle, the suspension of the effect of a disciplinary sanction under these regulations is exhaustively governed by regulation 12, and the generality of regulation 5 is necessarily confined by reference to the terms of regulation 12.  Consequently the understanding of the first respondent, that there was a distinct power to suspend the dismissal under regulation 5, inconsistently with regulation 12, was erroneous.
  1. McLennan was cited in Francis v Crime and Corruption Commission & Anor[28] for the proposition, which I have accepted, that “the sanctions which are expressed to be available [in s 7.4(3) of the Act and regulation 10] are not comprehensive.”[29]  The order which was under consideration in Francis was one made by the Queensland Civil and Administrative Tribunal.  By that order, the officer was dismissed upon terms that the dismissal was suspended for a period of three years, “to be implemented in the event of any further finding against [the applicant] of misconduct committed during the three year period of suspension.”  The power to suspend the applicant’s submission was one conferred by what was then named the Crime and Misconduct Act 2001 (Qld), more particularly s 219L of that Act.  Francis was not concerned with the question in the present case.
  1. There is, perhaps, a further flaw to the reasoning of the first respondent and the arguments in this Court which seek to uphold it. In the present case, the first respondent did suspend the effect of the dismissal upon a condition that the officer perform voluntary community service. He did not purport to order the officer to perform that service; rather, he suspended the dismissal upon condition that the service be performed. In that respect, the officer was suspended upon a condition which accorded with the terms of regulation 12(1). In that event, regulation 12(2) provided for the legal consequences of the performance, or non-performance, of the condition.  If, according to the respondents’ arguments and the judgment in McLennan, there were two distinct powers for the suspension of an order for dismissal, it is far from clear that the first respondent has avoided the consequence prescribed by regulation 12(2), by describing it, in his statement of reasons, as an order under regulation 5.
  1. I would propose the following order: [30]

The question referred by the President of the Queensland Civil and Administrative Tribunal to this Court for its determination, namely:

Upon the proper construction of section 7.4(3) of the Police Service Administration Act 1990 and regulation 5 of the Police Service (Discipline) Regulations 1990, was it within the First Respondent’s power to suspend a sanction of dismissal imposed on the Second Respondent subject to the conditions specified in the First Respondent’s order made on 21 December 2015?

is answered:  No.

  1. BOND J:  I agree with Gotterson JA.

Footnotes

[1]  AB1-3.

[2]  s 10.28(1A)(e).

[3]  For example, a commissioned officer is not entitled to impose any of the disciplinary sanctions referred to in sub-regs 10(c)-(f) inclusive: reg 7.

[4]  Appellant’s Outline of Submissions, para 12.

[5]  reg 10(a).

[6]  reg 10(e).  Appellant’s Outline of Submissions, para 13.

[7]  Appellant’s Outline of Submissions, para 14.

[8]  Ibid para 15.

[9]  Ibid para 16.

[10]  Ibid para 17.

[11]  [2014] QCATA 326 at [92].

[12]  [2008] QSC 23 at [40]–[44].

[13]  [2015] QCA 218 at [10].

[14]  Definition of “prescribed officer” in s 7.4(1).

[15]  s 7.4(2).

[16]  s 4.8(1).

[17]  Appeal Transcript (“AT”) 1-3 ll18-44.

[18]  Senior counsel for the appellant did concede that this contention “might strike difficulty” because of that phrase: AT1-31 ll33-34.

[19]  [2015] QSC 350 at [18], citing [2012] QCAT 165 per the Hon J B Thomas AM QC, Presiding Member, at [70]-[72].

[20]  At [42], [43].

[21]  s 7.4(3).

[22]  s 7.4(2).

[23]  [2008] QSC 23.

[24]  (1932) 47 CLR 1 at 7.

[25]  (1979) 141 CLR 672 at 678.

[26]  (1991) 172 CLR 1 at 24.

[27]  (2006) 228 CLR 566 at 589 [59].

[28]  [2015] QCA 218 at [10].

[29]  Ibid.

[30]  s 7.4(3).

Close

Editorial Notes

  • Published Case Name:

    Crime and Corruption Commission v Deputy Commissioner Barnett & Anor

  • Shortened Case Name:

    Crime and Corruption Commission v Barnett

  • MNC:

    [2017] QCA 320

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, McMurdo JA, Bond J

  • Date:

    22 Dec 2017

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
QCA Original Jurisdiction [2017] QCA 320 22 Dec 2017 Referral of question of law pursuant to s 118(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Appeal Status

No Status