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  • Unreported Judgment

Officer Jones v Superintendent McNab

 

[2020] QCATA 84

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Officer Jones v Superintendent McNab [2020] QCATA 84

PARTIES:

Lynette Jones

(applicant/appellant)

v

SUPRINTENDENT Bruce McNab

(respondent)

APPLICATION NO/S:

APL184-19 and APL 201-19

ORIGINATING APPLICATION NO/S:

OCR297-18

MATTER TYPE:

Appeals

DELIVERED ON:

3 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member

Member Fitzpatrick

ORDERS:

  1. The application for leave to appeal or appeal in APL184-19 is dismissed.
  2. The application for leave to appeal or appeal in APL201-19 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – where decision made to redeploy officer - whether decision is a reviewable decision – whether tribunal has jurisdiction– where matter dismissed for want of jurisdiction

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355

 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Flanagan v Stewart & Anor [2016] QSC 155

Hurley v Stewart & Anor [2016] QSC 154

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

Arndt v Crime and Misconduct Commission & Anor [2013] QCATA 340

Jones v McNab [2019] QCAT 213

O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356.

Acts Interpretation Act 1954 (Qld), s 35(c)

Crime and Corruption Commission Act 2001 (Qld), s 4, s 5, s15, s41(1), s 45(2), s 219BA, s 219D(1), s 219D(2), s 219I, s 219J

Industrial Relations Act 1999 (Qld)

Police Service Administration Act 1990 (Qld), s 1.4, s 1.5, s 4.8, s 4.9, s 4.10

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 17, s 20, s 24

REPRESENTATION:

Applicant:

M Black of Counsel

Respondent:

C Capper, A/Principal Legal Officer of the Queensland Police Legal Unit

APPEARANCES:

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an appeal on a question of law going to the scope of the tribunal’s review jurisdiction pursuant to the Crime and Corruption Act 2001 (Qld) (the CC Act). In deciding an appeal against a decision on a question of law only, the Appeal Tribunal has the powers set out in section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Leave to appeal is not required on a question of law.
    1. [2]
      Lynette Jones (Officer Jones or the appellant) appeals against two decisions of the Tribunal made respectively on 2 July 2019 and 31 July 2019, whereby the Tribunal decided in effect that:
      1. (a)
        the Tribunal does not have jurisdiction to review the purported reviewable decision, that is, a notice of temporary re-deployment and directions given to her by Superintendent McNab (the Superintendent or the respondent) dated 16 October 2018; and
      2. (b)
        the application for review filed by the appellant was dismissed pursuant to s 47 of QCAT Act, on the grounds that the want of jurisdiction rendered the application ‘frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process.’
  1. [3]
    The appeals are to be determined together. To the extent that the outcome of the second appeal is dependent on the outcome of the first appeal, we will first deal with the appeal from the decision made on 2 July 2019, being APL184-19.

Background

  1. [4]
    Officer Jones is a Senior Constable of the Queensland Police Service (QPS). She holds a permanent police officer position in a particular Section of the QPS.
  2. [5]
    On 18 April 2018, a QPS Deputy Commissioner provided a Notice of temporary re-deployment to another workplace and directions to the appellant. Relevantly the Notice provided:

It has been brought to my attention there are allegations of workplace harassment and bullying within the ….. Section.  In accordance with my duty under the Work Health and Safety Act 2011 (Qld) to, as far as practicable, eliminate or minimise risks to health and safety in the workplace, I have determined it is necessary to temporarily redeploy you to another workplace and issue you with further directions.

You are directed to:

  1. (a)
    Report for duty…at the …. Unit…Brisbane.

  1. [6]
    On 16 October 2018, Superintendent McNab gave the appellant a further Notice in the same terms, adding: ‘…I have determined it is necessary to continue your redeployment ……pending an outcome of this investigation.'
  2. [7]
    The notice dated 16 October 2018 is said to be made under sections 4.8 and 4.9 of the Police Service Administration Act 1990 (Qld) (PSA Act). Those sections empower the QPS commissioner to do all things necessary, including the giving of directions, for the efficient and proper administration, management and functioning of the police service.
  1. [8]
    Officer Jones sought to review the decision dated 16 October 2018 in QCAT’s review jurisdiction, resulting in the decisions now the subject of these appeals.
  2. [9]
    There is no dispute about the relevant factual background in relation to this appeal. Although the Superintendent does not agree with Officer Jones’ contention that the redeployment referred to in the notice is on an indefinite basis, that point does not affect the outcome of the appeal.
  3. [10]
    For the reasons set out in the paragraphs that follow, the appeals must fail.

Ground of Appeal

  1. [11]
    Officer Jones’ ground of appeal is that the Tribunal erred in finding that the respondent’s decision of 16 October 2018 is not a ‘reviewable decision’ for the purposes of s219BA(1) of the CC Act.
  2. [12]
    The appeal raises an issue as to the proper construction of section 219BA(1)(a) of the CC Act. Officer Jones submits that the construction she contends for is consistent with a broad contextual reading of the CC Act which bestows jurisdiction for disciplinary proceedings upon the Tribunal.

Statutory Framework

  1. [13]
    We refer in these reasons for decision to the relevant legislative provisions current at the time that the notice was given and at the time the Tribunal considered its jurisdiction, observing that there have  been  significant legislative amendments to the scheme for police discipline resulting from amendments effective from 30 October 2019.
  2. [14]
    QCAT’s jurisdiction is not at large. QCAT is a creature of statute; it has only the powers and functions provided by legislation enacted by Parliament. It has original, review and appeal jurisdiction conferred by the QCAT Act and enabling Acts.[1] The QCAT Act provides that the tribunal has jurisdiction conferred by an enabling Act, to review a decision made by another decision-maker (the original decision-maker).[2] A decision that may be reviewed is a ‘reviewable decision.’[3] The purpose of a review is to produce the correct and preferable decision following a fresh hearing on the merits.[4] The tribunal may confirm or amend a decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker.[5] An enabling Act may modify the general provisions of the QCAT Act.[6]

The CC Act

  1. [15]
    In determining the proper construction of legislation, the relevant provision must be interpreted in its statutory context.[7]
  2. [16]
    Chapter 1, Part 1 of the CC Act provides that the main purposes of the CC Act include improving the integrity of and reducing the incidence of corruption in the public sector.[8] The term ‘corruption’ is defined in Schedule 2 of the CC Act as ‘corrupt conduct’ or ‘police misconduct.’ Corrupt conduct is defined as ‘see s 15’.[9]
  3. [17]
    Police misconduct is defined in Schedule 2 as:

police misconduct means conduct that –

is disgraceful improper or unbecoming an officer; or

shows unfitness to be or continue as an officer; or

does not meet the standard of conduct the community reasonably expects of a police officer.

  1. [18]
    Section 41(1) provides that the commissioner of police (the QPS commissioner) has primary responsibility for dealing with police misconduct.[10] The CCC has responsibility for monitoring how the QPS commissioner deals with police misconduct.[11]
  2. [19]
    Pursuant to s 50(4)(a)(i) and (ii) respectively, a prescribed person includes a person who is a member of the police service (or a person who is a former member of the police service and was a member when the corrupt conduct happened).
  3. [20]
    Chapter 5, Part 2 of the CC Act is entitled ‘Disciplinary proceedings relating to corruption’. Division 1 of Chapter 5, Part 2 is entitled ‘Preliminary’ and in s 219B it defines terms for the Part, including defining ‘disciplinary proceeding’ to mean:
  1. (a)
    a proceeding under s 219F for corrupt conduct alleged to have been committed by a prescribed person; or
  1. (b)
    ‘a proceeding under section 219G for a reviewable decision’.
  1. [21]
    Section 219BA (1) and (2) defines ‘reviewable decision’:
  1. (1)
    A reviewable decision means –
  1. (a)
    a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or
  1. (b)
    a finding mentioned in the Police Service Administration Act 1990, section 7.4 (2A)(b) or 7A.5 (1)(b) that corruption is proved against an officer.
  1. (2)
    In this section –

decision, made in relation to a disciplinary allegation of corruption, if a disciplinary declaration is made, includes the disciplinary declaration.

Note –

A reviewable decision may also involve a failure to make a disciplinary declaration.

…….

  1. [22]
    The definition of ‘prescribed person’ for s 50(4)(a)(ii) is modified by s 219BA(2) for Chapter 5, Part 2, such that for a CCC review of a reviewable decision, a prescribed person includes an officer against whom a disciplinary declaration was not made if a ground of appeal states that it should have been made .
  2. [23]
    Chapter 5, Part 2, Division 2 is entitled ‘QCAT’s jurisdiction’. This Division provides, in s 219C, for QCAT’s jurisdiction to conduct disciplinary proceedings. Section 219D(1) provides that QCAT has exclusive jurisdiction to hear and decide ‘an allegation of corrupt conduct against a prescribed person.’[12] Section 219D(2) provides that subsection (1) ‘applies to the exclusion of authority given by law to any other person or tribunal to hear and decide, at first instance, an allegation of corrupt conduct.’ [13] Accordingly, in s 219D(2), the tribunal’s review jurisdiction is contemplated.
  3. [24]
    Chapter 5, Part 2, Division 3 is entitled ‘Proceedings’. Section 219F relevantly provides that the CCC (or otherwise, a chief executive officer of a unit of public administration) may apply to QCAT to hear and determine an allegation of corrupt conduct against a prescribed person. This provision confers original jurisdiction on QCAT.
  4. [25]
    QCAT’s review jurisdiction under the CC Act is conferred by s 219G. Section 219G is entitled, ‘Proceedings relating to reviewable decisions’ and provides as follows:
  1. (1)
    The Commission or a prescribed person against whom a reviewable decision has been made may apply, within the period mentioned in subsection (2) and otherwise as provided under the QCAT Act, to QCAT for a review of the reviewable decision.
  2. (2)
    The application must be made –
  1. (a)
    If the reviewable decision relates to a decision or finding mentioned in the Police Service Administration Act 1990, section 7.4 (2A), 7A.4 or 7A.5 – within 14 days after the day on which the reviewable decision or finding was given; or
  1. (b)
    Otherwise – within 14 days after the day on which the reviewable decision was announced.
  1. [26]
    Review of a reviewable decision must proceed by way of rehearing: s 219H. Unless leave of the tribunal is granted for fresh or additional evidence, the rehearing must proceed on the evidence that was given in the proceeding before the original decision-maker.[14]
  2. [27]
    Chapter 5, Part 2, Division 4 sets out ‘QCAT’s powers,’ for corrupt conduct,[15] and additional power, for reviewable decisions.[16] Section 219I provides for the orders that QCAT may make on a finding of corrupt conduct proved against a prescribed person, including dismissal and reduction in rank.[17] Section 219J, applies if after review QCAT finds corruption has been proved and the tribunal sets aside the reviewable decision and substitutes another decision. In such circumstances, QCAT may impose any discipline. 

The PSA Act

  1. [28]
    The PSA Act defines ‘corrupt conduct’ as: ‘see CC Act s 15’.[18] ‘Misconduct’ is defined in similar terms to ‘police misconduct’[19] in the CC Act. ‘Disciplinary action’ is defined to mean action taken for misconduct, corrupt conduct or breach of discipline.[20]
  2. [29]
    Section 4.8 of the PSA Act relevantly provides:

Commissioner’s responsibility

  1. (1)
    The commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law. 
  1. [30]
    Section 4.9 of the PSA relevantly provides:

Commissioner’s directions

  1. (1)
    In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service.
  2. (2)
    A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act.
  3. (3)
    Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction.
  4. (4)
  5. (5)
    In all proceedings –
    1. (a)
       a document purporting to be certified by the commissioner to be a true copy of a direction under subsection (1) is admissible as evidence of the direction; and
    1. (b)
       a direction under subsection (1) is to be taken as effectual until the contrary is proved.
  6. (6)
  1. [31]
    Section 7.4 of the PSA Act, entitled ‘Disciplinary action’, provides as follows:
  1. (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. (2)
    An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or breach of discipline on such grounds as are prescribed by the regulations.

(2A) If the prescribed officer –

  1. (a)
     decides an allegation of misconduct brought against the officer; or
  1. (b)
     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. (3)
     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. (a)
     dismissal;
  1. (b)
     demotion in rank;
  1. (c)
     reprimand;
  1. (d)
     reduction in an officer’s level of salary;
  1. (e)
     forfeiture or deferment of a salary increment or increase;
  1. (f)
     deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.
  1. [32]
    Section 7.4 applies in respect of serving police officers. We observe that Part 7.A provides for disciplinary action and disciplinary findings against a former officer who was an officer at the time a disciplinary ground arose. By ss 7.A4 and 7.A5 respectively, the QPS commissioner must give a QCAT information notice-- to a former officer if the allegation is of misconduct or there is a finding of misconduct and a disciplinary declaration is made; and to the CCC if the QPS commissioner decides an allegation of misconduct or when deciding an allegation of breach of discipline makes a finding of misconduct.
  2. [33]
    The Police Service (Discipline) Regulations 1990(Qld) (PS Regs) set out the framework for decision-making by prescribed officers, including the grounds for disciplinary action, which relevantly include misconduct.[21]
  3. [34]
    The phrase ‘allegation of misconduct’ is not defined.

Tribunal decision dated 2 July 2019

  1. [35]
    The only matter before the Tribunal was whether the tribunal has jurisdiction to review the decision in question. The Tribunal discussed the jurisdiction conferred on QCAT by the CC Act in its original and review jurisdictions. 
  2. [36]
    The learned Member discussed Officer Jones’ submissions to the effect that:
    1. (a)
      the redeployment notice reveals that the QPS is investigating an allegation that Ms Jones may have engaged in ‘corruption’ (namely, ‘police misconduct’ in the nature of workplace bullying or harassment) for the purposes of s 219BA(1) of the CC Act;
    2. (b)
      the re-deployment decision, made under s 4.8 and s 4.9 of the PSA Act, is a decision for the purposes of s 219BA(1) of the CC Act; and
    3. (c)
      having regard to the statutory context and the facts of the case, the redeployment decision was made ‘in relation to’ the allegation of misconduct for the purposes of s 219BA(1) of the CC Act.[22]
  3. [37]
    The learned Member accepted that the re-deployment decision reveals the QPS is investigating whether Ms Jones may have engaged in ‘misconduct’.  It was not, however, accepted that the decision to redeploy made under s 4.8 and s 4.9 of the PSA Act is a reviewable decision for the purposes of s 219BA(1) of the CC Act.
  4. [38]
    In essence, the learned Member identified that the Tribunal can only review a ‘reviewable decision’ as defined in s219BA and as provided for in s 219G of the CC Act. She concluded that in relation to s 219BA(1)(a), there is no allegation of misconduct, and in relation to s 219BA(1)(b), there has been no finding made that  misconduct is proved when deciding an allegation of breach of discipline, as necessary for there to be a proper exercise of the powers under s 7.4 of the PSA Act.
  5. [39]
    The Member referred to Irwin v Stewart (Commissioner of Police) & Anor[23] and the statement by McMurdo J that:

The disciplinary powers under s7.4 of the PSA and the Public Service (Discipline) Regulations 1990 are exercisable only where there is a decision or finding by the prescribed officer under s7.4(2A).  There must be either a decision that an allegation of misconduct is proved or, when an allegation of breach of discipline is brought against an officer, a finding that misconduct is proved against the officer…[24]

  1. [40]
    The learned Member expressly rejected the appellant’s submission that having regard to the statutory context and the facts of the case, the decision was made ‘in relation to’ the allegation of misconduct for the purposes of s 219BA(1) of the CC Act.
  2. [41]
    At paragraph [38] of her decision, the learned Member concluded:

…a decision made in relation to an allegation of corruption (or misconduct) arises where the prescribed officer has exercised the powers under s7.4 of the PS Act. The Tribunal can only review a ‘reviewable decision’ as conferred by s219G of the CC Act.  Section 219BA of the CC Act provides that a ‘reviewable decision means a decision made in relation to an allegation of corruption (or misconduct) against a prescribed person; or a finding mentioned in the PSA Act, s 7.4(2A)(b) or s7A.5(1)(b) that corruption (or misconduct) is proved against an officer. Here there is no allegation of misconduct nor finding of misconduct necessary for there to be a proper exercise of the powers under s7.4 of the PSA Act.  The decision is not a ‘reviewable decision’ for the purposes of s219BA(1) of the CC Act.

Officer Jones’ submissions

  1. [42]
    Officer Jones contends that the notice dated 16 October 2018 is a reviewable decision as defined in s 219BA(1)(a). She submits that the Tribunal erroneously concluded that only decisions made under s 7.4 of the PSA Act are capable of being reviewable decisions under s 219G.
  2. [43]
    The appellant submits, and it is not contentious, that whilst the Queensland Industrial Relations Commission (QIRC) has general jurisdiction to hear any question arising out of an ‘industrial matter’, by s 219C the CC Act gives the Tribunal jurisdiction to ‘conduct disciplinary hearings’, which by s 219E are to the exclusion of the QIRC.  Relevantly, by s 219B ‘disciplinary proceedings’ include proceedings under s 219G for a ‘reviewable decision’.
  3. [44]
    Officer Jones argues that the CC Act evinces an intention that QCAT’s review jurisdiction extends to all decisions ‘in relation to’ an allegation of ‘corruption’, rather than only ‘final conclusions’ of corruption. She submits that this promotes the purposes of the CC Act, allowing the CCC to perform its oversight role and ensuring the public point of view is brought to bear, in essence, in relation to all aspects of the disciplinary process.
  4. [45]
    Officer Jones submits that the learned Member relied on Irwin’s case in support of the conclusion but in fact Irwin’s case is relevant only to the proposition that disciplinary powers under s 7.4 were exercisable only where an allegation of misconduct is proved against an officer. In the present case, it is submitted, the appellant accepts that the respondent has not exercised the disciplinary powers under s 7.4 of the PS Act, rather she contends that the decision was made ‘in relation to an allegation of’ misconduct, thereby falling with the meaning of ‘reviewable decision’ under the first limb of the definition in s 219BA(1).
  5. [46]
    Further, Officer Jones submits that section 219BA(1)(a) should be construed as requiring:
    1. (a)
      a decision of the type discussed in Australian Broadcasting Tribunal v Bond[25] which is “final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”.[26] It is said that the decision to redeploy the appellant was final or operative and determinative of the question of whether the appellant should be redeployed;
    2. (b)
      an allegation of corruption. The appellant submits that an allegation of workplace harassment and bullying has been made in relation to the appellant and that may amount to police misconduct or corruption as defined in the CC Act; and
    3. (c)
      a decision “in relation to” the allegation.[27] The appellant submits that the decision was in relation to the allegation because it was said to be intended to “eliminate or minimise risks” and to govern the parties’ competing rights and interests “pending an outcome of an investigation”.
  1. [47]
    Further, Officer Jones argues that the construction contended for is consistent with a broad contextual reading of the CC Act which bestows jurisdiction for disciplinary proceedings on QCAT.

The Superintendent’s submission

  1. [48]
    The Respondent contends that while the decision to redeploy was made within the background context of an ongoing discipline investigation, the decision was not made as a consequence of any finding of misconduct, but rather in the performance of the effective and efficient management of the police service and in accordance with the obligations, as an employer, to protect the welfare of employees of the Queensland Police Service.
  2. [49]
    The Superintendent submits that as with other powers conferred upon the QPS commissioner, such as stand down and suspension, the power to redeploy an officer is independent of any discipline findings and/or sanction.[28]
  3. [50]
    The appellant rejects the respondent’s submissions and seeks to distinguish the decisions relied upon by the respondent, noting that Hurley’s case only dealt with the question of whether certain suspension decisions were legally unreasonable and does not assist with a question as to the scope of section 219BA of the CC Act. On the interpretation of the section taken by us it is not necessary to consider the cited cases further.

Is the notice dated 16 October 2018 a reviewable decision?

  1. [51]
    The parties agree, and we accept, that the notice dated 16 October 2018 is not a reviewable decision made under the second limb of the definition in s 219BA(1)(b) of the CC Act. That is, there has been no finding made of misconduct when deciding an allegation of breach of discipline against Officer Jones consequent upon an exercise of disciplinary powers relevantly (in relation to a serving police officer) under section 7.4(2A)(b) of the PSA Act.
  2. [52]
    It is uncontroversial that the notice in question was given pursuant to s 4.8 and s 4.9 of the PSA Act. Under those provisions, the QPS commissioner is responsible for the efficient management and functioning of the police service and may do all things lawful and necessary to discharge the function and may give directions to officers.[29] Specifically, the QPS commissioner must comply with determinations of any relevant industrial authority in so doing.
  3. [53]
    The CC Act provides that the QPS commissioner has primary responsibility for dealing with police misconduct. It is uncontroversial that the provisions concerning disciplinary action taken by a ‘prescribed officer’, who is a QPS officer, against a police officer are set out in the PSA Act. An officer is liable to disciplinary action for conduct that the prescribed officer considers is misconduct or a breach of discipline: s 7.4(2). If an allegation of misconduct is decided against the officer or when deciding an allegation of breach of discipline brought against an officer, misconduct is proved, the QPS commissioner must give the officer, and the CCC, a QCAT information notice: s 7.4(2A).[30] In taking disciplinary action, discipline may be imposed on the officer as specified in s 7.4(3) including dismissal; demotion in rank; and reduction in salary level. Therefore, in s 7.4(2A)(a) of the PSA Act, the phrase ‘allegation of misconduct’ necessarily means a formal allegation of misconduct brought against an officer. Further, the phrase ‘decides an allegation of misconduct brought against the officer’ connotes deciding whether the formal allegation is, under s 7.4(2), established to the satisfaction of the prescribed officer. If so, the prescribed officer may impose a discipline pursuant to s 7.4(3). The PS Regs are consistent with that interpretation.
  4. [54]
    The interpretation that Officer Jones contends for 219BA(1)(a) of the CC Act, is inconsistent with a formal allegation of misconduct brought and decided in disciplinary proceedings under the PSA Act. Although she accepts that decisions about formal allegations of corruption are reviewable decisions, she submits that the definition is broad enough to encompass any decision made in the process of investigation of an allegation of misconduct, that may or may not later result in a formal allegation of misconduct against an officer. 
  5. [55]
    In Arndt v Crime & Corruption Commission & Anor (Arndt),[31] the Appeal Tribunal considered whether a decision of the QPS commissioner fell within s 219BA(1)(a) of the CMC Act. That Act was the predecessor to the CC Act. The section is in the same terms in each version of the Act. The decision in question was made following receipt of a report from the then Crime and Misconduct Commission (CMC) about alleged misconduct of a police officer. The decision made was not to take disciplinary action against the officer, but to instead take managerial action. The CMC sought a review of that decision. The police officer argued that QCAT had no jurisdiction to review the decision as it did not fall within s 219BA(1)(a) of the CMC Act.
  6. [56]
    The Appeal Tribunal observed that, when regard is had to s 219BA in the context of the police disciplinary regime provided for in the PSA Act, the words in s 219BA take on a narrower meaning than a literal interpretation might suggest.[32] The Appeal Tribunal concluded that a ‘decision’ in s 219BA means something more than any decision about an allegation of misconduct.  It is the decision taken in disciplinary action against the officer where the decision- maker has formed a view that the officer should be disciplined.[33]
  1. [57]
    Further, in Arndt,[34] the Appeal Tribunal found that an allegation against a police officer only becomes ‘an allegation of misconduct brought against an officer’ once disciplinary action is taken with respect to the allegation. It referred to the legislative history of s 7.4 of the PSA Act, relevantly, noting that the word ‘allegation’ had been substituted in 2009, for the word, ‘charge’, because the latter term had a criminal connotation. It further considered that the words ‘allegation …brought against’ and ‘allegation … against’ and officer in s 7.4(2A)(a) of the PSA Act and s 219BA(1)(a) of the CC Act respectively, supported the view that an ‘allegation’ in both of those sections was more than a mere assertion.[35]
  1. [58]
    We respectfully agree. Further, it is unlikely that Parliament in s 7.4(2A)(a) of the PSA Act intended to use the phrase an ‘allegation of misconduct brought against an officer’ in a manner inconsistent with the phrase ‘allegation of corruption against a prescribed person’ in s 219BA(1)(a) of the CC Act, given that together they comprise the scheme for police discipline. That conclusion is consistent with the learned Member’s reasoning in relation to the relevance of Irwin’s case.
  2. [59]
    That said, in addition to that reasoning, we consider that on a proper construction of the CC Act itself, the first limb of the definition of reviewable decision in s 219BA(1) of the CC Act refers to a decision about a formal allegation of misconduct which has been heard and decided against a prescribed person and if found established, a discipline imposed.
  3. [60]
    In respect of QCAT’s jurisdiction and powers, the CC Act is an enabling Act. As discussed earlier, QCAT’s jurisdiction and the definition of ‘reviewable decision’ is set out in Chapter 5, Part 2 of the CC Act entitled, ‘Disciplinary proceedings relating to corruption’. By s 35C of the Acts Interpretation Act 1954 (Qld), the heading to a Part forms part of the provision to which it is a heading. QCAT has jurisdiction to conduct disciplinary proceedings.[36] An allegation of corrupt conduct against a prescribed person may only be heard and decided by QCAT,[37] excluding the authority another person or tribunal has at law to hear and decide an allegation of corruption made against a prescribed person at first instance.[38] The latter contemplates the tribunal’s review jurisdiction in which it reviews a reviewable decision made at first instance by another decision-maker.
  4. [61]
    As discussed earlier, ‘Disciplinary proceeding’ means a disciplinary proceeding in QCAT’s original jurisdiction under s 219F whereby an application may be made to QCAT to hear and decide an allegation of corrupt conduct against a prescribed person, as well as a proceeding in QCAT’s review jurisdiction under s 219G, for a review of a reviewable decision as defined in s 219BA.
  5. [62]
    Section 219G(2) prescribes time frames for applying for review. In s 219G(2)(a) if the reviewable decision or finding is mentioned in the PSA Act in ss 7.4(2A), 7.A4 or 7A.5, an application must be made within 14 days after the  notice of the decision or finding; or in s 219G(2)(b), otherwise, within 14 days after the reviewable decision is announced. The reference in s 219G(2)(a) aligns with the provisions of the PSA Act earlier discussed under which an officer or a former officer and the CCC are given notice of a decision made about formal allegations of misconduct brought against the officer or former officer, or of a finding of misconduct when deciding an allegation of breach of discipline. 
  6. [63]
    In placing a construction on s 219(2)(b) in the CC Act, it must be observed that QCAT’s jurisdiction for disciplinary proceedings relating to corruption applies not only to police officers and former police officers, and further, that the jurisdiction conferred on QCAT is limited to disciplinary proceedings. Therefore, the reference to ‘otherwise’ in s 219(2)(b), is not a reference to other decisions made under the PSA Act but rather to a reviewable decision in respect of a prescribed person, who is not a police officer or former police officer. Those decisions made under the PSA Act in respect of which review arises under the CC Act are specifically provided for in s 219G(2)(a).
  7. [64]
    Under s 219F, on a plain reading, formal disciplinary allegations of corruption against a prescribed person are contemplated before QCAT’s original jurisdiction can be engaged.  The tribunal’s jurisdiction is to hear and decide an allegation of corrupt conduct. For the tribunal to hear and decide an allegation of corruption, there must necessarily be a formal allegation to be decided. For a reviewable decision referred to in s 219G, the hearing of the review must be performed by way of rehearing on the evidence that was before the original decision-maker: s 219H.
  8. [65]
    The Appeal Tribunal in Arndt’s case, observed that s 219H in referring to a rehearing, suggests a formal proceeding where a hearing has occurred before the original QPS decision-maker.[39] We agree.
  9. [66]
    Section 219D(2) supports this interpretation, by providing as discussed earlier, that QCAT’s jurisdiction applies to the exclusion of authority given relevantly to any other person to hear and decide at first instance, an allegation of corruption. The provision necessarily contemplates that in respect of a reviewable decision an allegation of corruption has been heard and decided at first instance by another decision-maker, before an application for review to QCAT. This construction is consistent, not only with the relevant CC Act provisions, and also with the general provisions in the QCAT Act about the way in which tribunal’s review jurisdiction is to operate and its task in a review proceeding.
  10. [67]
    Further then, following its hearing or rehearing respectively in its original and review jurisdictions, QCAT may exercise the powers in s 219I, s 219J and 219L of the CC Act. The disciplines that may be imposed on a finding of corrupt conduct being proved against the prescribed person are set out in s 219I and include dismissal, reduction in rank, deferral or forfeiture of salary increases. In respect of a review of a reviewable decision, pursuant to s 219J, if the tribunal finds that corruption has been proved and  sets aside the reviewable decision and substitutes another decision, it may impose any discipline. These provisions contemplate that at the conclusion of the tribunal hearing or relevantly, rehearing, the tribunal will, if there is a finding that the allegation is  proved, impose a discipline. If it is not proved, the allegation and the proceeding will be dismissed and no discipline imposed. There are no general powers that the tribunal may exercise to make orders in addition to finding corruption is proved, or not, and if proved, imposing a discipline.
  11. [68]
    We turn to s 219BA. The definition of reviewable decision in s 219BA(1)(a), refers to ‘a decision made in relation to an allegation of corruption against a prescribed person,’ other than as made by a court or QCAT. Officer Jones argument particularly relies upon the phrases ‘in relation to’ ‘an allegation of corruption’ to argue that the CC Act extends to decisions broadly captured by these words. However, in context of Chapter 5 Part 2 of the CC Act, a reviewable decision is necessarily confined to a decision about a formal allegation of corruption that the original decision-maker has already heard and decided. In the scheme of Chapter 5 Part 2, a construction of s 219BA(a) must take account of the limits upon QCAT’s jurisdiction, that is to hear and decide by way of a rehearing an allegation of corruption (previously decided by the original decision-maker) and if corruption is proved, to impose a discipline. On a proper construction, the CCC or the prescribed officer may review a decision under s 219G about a decision or finding that misconduct is proved, or a decision to impose a particular discipline, or both. Both are decisions about or ‘in relation to’ an allegation of corruption as defined in s 219BA(1)(a).
  12. [69]
    Accordingly, based on our findings as to the proper construction, we reject Officer Jones submissions that the CC Act evinces an intention that QCAT’s review jurisdiction under the CC Act applies broadly to any decision that relates in a general way to an allegation of corruption. Further, we reject the argument that a reviewable decision may be any ‘decision’ ‘in relation to’ ‘an allegation of corruption’ adopting a broad and general construction of those words and phrases as contended for by her. They must be read in context.
  13. [70]
    The QPS commissioner’s powers to take disciplinary action under the PSA Act against a serving police officer are set out in s 7.4 (Part 7A of the PSA Act provides for the action that may be taken against a former officer). We have found that QCAT’s jurisdiction under the CC Act for reviewable decisions in s 219BA(1)(a) is limited to decisions about formal allegations of corruption in taking disciplinary action. Accordingly, to the extent that the Tribunal below found that reviewable decisions may only arise in respect of serving police officers from decisions taken under s 7.4 of the PSA, there was no error.
  14. [71]
    Here, the notice in question does not constitute an allegation of corruption against Officer Jones. There is currently no allegation of corruption that has been heard and decided. There is merely an investigation to determine whether an allegation is to be made. The assertions may be baseless in which case no disciplinary process will ensue.
  15. [72]
    In conclusion, on a proper construction, Parliament did not intend s 219BA(1)(a) to catch any decision made about redeployment of staff during an investigation process that may or may not lead up to disciplinary action resulting in a decision made about an allegation of misconduct against an officer. The learned Member below found that there was no allegation of corruption in refusing to find that the redeployment decision fell within the scope of s 219BA(1)(a). We agree with her conclusion.
  16. [73]
    We find that upon a proper construction of s 219BA(1)(a), the notice at issue is not a reviewable decision. That being so, we further find that the Tribunal correctly found that it did not have jurisdiction for the review and dismissed the application for review pursuant to s 47 of the QCAT on the basis that it was lacking in substance or otherwise misconceived. The appeals must fail.

Orders

  1. [74]
    The application for leave to appeal or appeal in APL184-19 is dismissed.
  2. [75]
    As a result of the decision in APL184-19 we determine that the decision made on 31 July 2019 is correct. Accordingly, the application for leave to appeal or appeal in APL201-19 is dismissed.

Footnotes

[1]QCAT Act, s 6.

[2]Ibid, ss 6, 17.

[3]Ibid, s 17, esp s 17(2).

[4]Ibid, s 20.

[5]Ibid, s 24.

[6]Ibid, ss 6, 7.

[7]Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355.

[8]CC Act s 4.

[9]Broadly speaking, ‘corrupt conduct’ is defined to include certain acts done by certain public sector employees in the performance of their duties that would be, if proved, criminal offences or a disciplinary breach warranting termination of employment.

[10]CC Act s 41(1).

[11]Ibid, s 45(2).

[12]CC Act, s 219D(1).

[13]Ibid, s 219D(2).

[14]CC Act s 219H.

[15]Ibid, s 219I.

[16]Ibid, s 219J.

[17]CC Act s 219I applies to persons whose employment or appointments ends after the corrupt conduct happens.

[18]PSA Act, s 1.4.

[19]Ibid, s 1.4.

[20]Ibid, 1.5.

[21]PS Regs, r 9.

[22]Jones v McNab [2019] QCAT 213 at [31].

[23][2015] QSC 350.

[24]Ibid, [21].

[25]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[26]Ibid at 337.

[27]O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356.

[28]Hurley v Stewart & Anor [2016] QSC 154; and Flanagan v Stewart & Anor [2016] QSC 155.

[29]The QPS commissioner may delegate powers: PSA Act, s 4.10.

[30]A QCAT information notice must be given pursuant to s 157 of the QCAT Act for a reviewable decision.

[31][2013] QCATA 340

[32]Ibid, [38]

[33]Ibid, [58]

[34]Ibid at [59]-[74].

[35]Ibid at [72-74].

[36]CC Act, s 219C.

[37]Ibid, s 219D(1).

[38]Ibid, s 219D(2).

[39][2013] QCATA 340, at [51-52].

Close

Editorial Notes

  • Published Case Name:

    Officer Jones v Superintendent McNab

  • Shortened Case Name:

    Officer Jones v Superintendent McNab

  • MNC:

    [2020] QCATA 84

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Fitzpatrick

  • Date:

    03 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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