- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Kennedy v Commissioner of the Qld Police Service  QSC 219
BRYAN GEORGE KENNEDY
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
No 3927 of 2014
Supreme Court at Brisbane
7 August 2015
28 July 2015
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – where the applicant was found to have engaged in three instances of misconduct and was dismissed from the police force by the respondent – where the applicant appealed to QCAT and only one ground of misconduct was substantiated and the appropriate sanction was found to be six months suspension – where the respondent defended the QCAT proceedings and appealed QCAT’s decision on the grounds that the sanction was “manifestly inadequate” – where QCAT dismissed the respondent’s appeal – where the respondent gave newspaper interviews concerning the applicant’s misconduct and sanction – where the applicant was subsequently assigned duties as Communications Room Supervisor in Rockhampton by someone other than the respondent – where the applicant asked that this decision be reviewed by the Review Commissioner – where the Review Commissioner recommended to the respondent that the decision to assign the applicant to that position be set aside – where the respondent was to have regard to the recommendation and take actions that appeared to the respondent to be “just and fair” – where the respondent revisited the decision and affirmed the assignment of the applicant to the role of Communications Room Supervisor – where the applicant applied to have this decision of the respondent set aside and submitted that there was a reasonable apprehension of bias on the part of the respondent – whether the applicant was denied natural justice
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the decision to “transfer” the applicant to the position of Communications Room Supervisor was made under s 5.2 of the Police Service Administration Act 1990 – where the applicant applied to have this decision set aside and submitted that the transfer decision was not made in accordance with the requirement that transfers be made after an application process or on a basis prescribed by regulation – where there was no application process undertaken – where it was submitted by the respondent that Schedule 2 of the Queensland Police Service Determination, 2010 provided a basis prescribed by regulation – whether there was a basis prescribed by regulation for the applicant’s transfer – whether there was a failure to observe statutory procedure
Industrial Relations Act 1999 (Qld)
Police Service Administration Act 1990 (Qld) s 4.8, s 5.2, s 9.5
Police Service Administration Regulation 1990 (Qld) r 4.2A
Queensland Police Service – Determination, 2010 (CA/2010/12) (Qld), Schedule 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Re Refugee Review Tribunal & Anor; ex parte H & Anor  HCA 28
M Black for the applicant
S McLeod for the respondent
Gilshenan & Luton Legal Practice for the applicant
Public Safety Business Agency Legal Services for the respondent
- This is an application for the statutory review of two decisions made in relation to the applicant’s employment; one made 16 January 2013, and one 31 March 2014. For the following reasons the applicant should succeed in having those decisions set aside. For clarity, my judgment is about the processes involved in making the decisions. It is not a judgment about the merits of the decisions which have been made.
Denial of Natural Justice – Decision 31 March 2014
- As at 16 February 2011 the applicant was a senior sergeant stationed at Rockhampton, employed in the role of Deputy District Officer. On that day he was dismissed by Ian Stewart, who was then Deputy Commissioner (Regional Operations). The dismissal was for misconduct. In a three page notice, Deputy Commissioner Stewart outlined three matters of misconduct which he found substantiated. They were:
(a)The applicant dishonestly gained the benefit of a fridge which had been donated to the Mt Isa Police Citizens Youth Club, by taking it to his former home in Mt Isa and then to his new home when transferred to Rockhampton. This was between 15 April 2008 and 24 January 2009.
(b)While acting in the capacity of officer in charge of the Doomadgee Police Station the applicant facilitated the entry of 20 cartons of beer into a restricted alcohol zone by instructing his subordinate officers to bring the beer into the zone. This was in December 2007.
(c)In December 2007, while at Doomadgee, the applicant allowed a civilian to dress in his uniform, including his belt with his official Glock firearm and ammunition attached.
- Deputy Commissioner Stewart considered that the appropriate sanction in relation to each of these matters was that the applicant be dismissed from the police force.
- The applicant applied to QCAT to have these decisions reviewed on their merits. Deputy Commissioner Stewart defended those proceedings by counsel who appeared in the Tribunal. That is, the Deputy Commissioner did not simply agree to abide the decision of QCAT. A tribunal constituted by Mr James Thomas AM QC, and Ms Michelle Howard gave a decision on 22 December 2011 that affirmed Deputy Commissioner Stewart’s finding of misconduct in relation to the fridge, but set aside his findings as to the other two incidents. The tribunal set a further date for hearing what sanction would be appropriate in the circumstances.
- In February 2012 the same two members of QCAT decided that the sanction imposed for the fridge misconduct should be set aside, and in lieu thereof a sanction of six months suspension effective from 16 February 2011 should be imposed. That was a matter heard on the papers, but counsel instructed by the Deputy Commissioner made submissions on the matter of sanction. The Deputy Commissioner’s submission was that dismissal was the appropriate sanction for the misconduct involving the dishonest use of the fridge.
- It appears from both sets of reasons in QCAT (merits review and sanction review) that there were extensive reasons for the decision of 16 February 2011 given by Deputy Commissioner Stewart which I do not have. I note that in the sanction decision of February 2012 at paragraph  the QCAT members noted that, although they did make findings of deliberate falsehood against the applicant, these findings were “considerably less extensive than those originally made by Deputy Commissioner Stewart”. So it appears that Deputy Commissioner Stewart’s extended reasons (which I do not have) included findings that the applicant had lied about his use of the fridge, as well as a finding that he had dishonestly used the fridge.
- Apart from these two first instance decisions in QCAT, there were interlocutory decisions in QCAT. After his dismissal the applicant sought a stay of the decision. The Deputy Commissioner opposed that application. A Member granted a stay on 31 March 2011. The Deputy Commissioner appealed that order to the Honourable James Thomas AM QC who, on 31 August 2011, set the stay aside.
- Deputy Commissioner Stewart appealed the sanction decision of Members Thomas and Howard to the appeals division of QCAT, contending that the sanction they imposed was “manifestly inadequate”. Before the appeals division of QCAT, the Deputy Commissioner again contended for a sanction of dismissal. This was refused in a decision of Members Oliver and Barlow SC on 7 December 2012.
- The applicant included articles from newspapers in his material on the application before me. Counsel for the respondent did not contend that Commissioner Stewart had been misreported in those articles. There were three articles.
- The first was published on 27 October 2012 and reported that the incoming Police Commissioner, Commissioner Stewart, said that he hoped, “the Government would change the laws to make it easier for him to personally sack officers who did not belong in the service.” He was reported as saying:
“I would hope that in time the Government would look at a change in legislation to bring in the power of ‘commissioner’s confidence’, even if there is a mechanism of appeal for that,”…
“There are some instances or incidents that are just so clear-cut that the commissioner should have the right to say ‘You don’t belong in our organisation, show cause to me why you should remain’.”
- The article reported that the Police Union Journal showed that QCAT had reduced five of six penalties imposed by Commissioner Stewart. It was reported in the newspaper that the Commissioner was appealing against one QCAT ruling which reinstated an officer he sacked for stealing (it was accepted this was a reference to the applicant). Apparently in relation to that officer, Commissioner Stewart is reported as saying:
“It’s very difficult for us when we have a person in the organisation who for instance steals and that stealing is proved,” …
“How can the public have faith in us if we’ve got a thief in our ranks?”
“I accept the umpire’s rule. But there are times and there’s a recent time where I actually dismissed a person because in real terms they stole. We couldn’t charge them criminally because of a technicality but I sacked that person. QCAT saw fit to reinstate the person into the police service and I’ve got an appeal before QCAT on that basis.”
- The second article was published on 3 November 2012. It named the applicant and gave quite some detail of the three original misconduct charges. The article repeated the statements extracted at  above, and repeated that the new Commissioner of Police wanted a power to dismiss those people in whom he did not have confidence.
- The third article appeared on 19 December 2012 and reported:
“Police Commissioner Ian Stewart will push for greater dismissal powers after being told he could not sack the latest officer found to be dishonest.
Former Mount Isa Senior Sergeant Bryan Kennedy was sacked after a fridge donated to a Police-Citizens Youth Club was kept at his home.
The Queensland Civil and Administrative Tribunal overturned the sacking and dismissed Mr Stewart’s appeal in a decision set to be published later this week.
Mr Stewart yesterday said he was left with an officer who did not meet his strict standards or have his confidence.
‘The practical issue is what do you do with an officer who has an integrity issue and Mr Kennedy obviously has an integrity issue,’ he said.
Mr Stewart said he had received legal advice that he should not take further court action against Sgt Kennedy and now had to deal with where to place the officer.
While he ‘accepted the referee’s decision’ he said integrity was a key factor in every job in the service.
‘I’m disappointed when others make decisions which interfere with those standards, when those people have no obligation or accountability for running an organisation that’s 15,000 strong,’ he said.
Mr Stewart hopes to gain support for ‘commissioner’s confidence’ powers that would allow him to dismiss officers who did not meet his standards.
- After the appeal decision in QCAT, the applicant was assigned duties as Communications Room Supervisor in Rockhampton. His salary and other benefits were the same as when he performed the role of Deputy District Officer in Rockhampton. The applicant was told this appointment was a risk mitigation strategy. The point seems to be that, as Deputy District Officer, the applicant would supervise others, and have little supervision himself. However, as Communications Room Supervisor, his work performance would be more observed, supervised and accountable. The risk which was being mitigated was risk due to the applicant’s previous misconduct. The applicant was dissatisfied with his assignment to Communications Room Supervisor and asked that it be reviewed by the office of Review Commissioner. Under the Police Service Administration Act 1990 the Review Commissioner does not have power to change a decision, but has power to make recommendations as to the matter under review – see s 9.5(1) of that Act. In this case the Review Commissioner looked at the very complicated set of rules which apply to assigning employment roles in the Queensland Police Force (I deal with these below) and concluded:
“In summary, I think that the processes have been mishandled and decisions appear to me to be based on faulty premises and are not fair or transparent. I therefore believe that the decision to transfer Senior Sergeant Kennedy to Police Communications Centre, Rockhampton be set aside. The remedy is more difficult to determine – there is no magic fix. I understand that there may be a current vacancy at Rockhampton DDO and I recommend that Senior Sergeant Kennedy be re-instated in a position there. Should this vacancy not now exist, an option of being appointed to DDO in a surplus position (with the attendant risks) may be offered to Senior Sergeant Kennedy. Alternatively, if a Senior Sergeant Project Officer position is still available in the Regional Office, Senior Sergeant Kennedy may elect to return there. Whatever the outcome, I anticipate that it would be a solution mutually agreed upon by the Commissioner and Senior Sergeant Kennedy.”
- The Police Service Administration Act provides at s 9.5(2):
“The commissioner of the police service, upon consideration of the matter reviewed [by the Review Commissioner] and having regard to the recommendations made, is to take such action as appears to the commissioner of the police service to be just and fair.”
- Pursuant to this section, Commissioner Stewart determined that: (a) the manner of the applicant’s assignment to the role of Communications Room Supervisor ought to be revisited; (b) that he should be the one to revisit the matter, and (c) he should affirm the decision to assign the role of Communications Room Supervisor to the applicant. He explained this in reasons given on 31 March 2014.
- The applicant says that as a matter of natural justice he was entitled to have someone who was not apparently biased perform the statutory task outlined at s 9.5(2) of the Police Service Administration Act. There was no contest that, had the Commissioner wished to delegate that task, there was power for him to do so – see Police Service Administration Act, s 4.10(1). Commissioner Stewart noted in his reasons of 31 March 2014 that he had been asked to delegate the task, but that he refused to.
- The test for apprehension of bias is well known. In terms of a Court hearing, “a Judge is disqualified if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide”. The rule in relation to administrative proceedings held in private is similar.
- In this case Commissioner Stewart had, whilst a Deputy Commissioner, made final findings of fact adverse to the applicant and had made findings of dishonesty against him. These findings bore on the same subject matter as that which he had determined should be reconsidered pursuant to s 9.5(2) of the Act. When the applicant challenged his decisions through the QCAT system, Commissioner Stewart took an active role in the QCAT proceedings, and defended the decisions he had made. As well as that, Commissioner Stewart had made it clear in the press that he had no confidence in the applicant and that, were it up to him, the applicant would have no place in the police force. Under s 9.5(2) of the Police Service Administration Act, the Commissioner was required to act justly and fairly in taking action consequent on the Review Commissioner’s recommendations. The subject matter of the Review Commissioner’s recommendation in this case was the placement of an officer in a role deemed suitable because it provided supervision, and thus risk mitigation, in circumstances where that officer’s responsibility, honesty and willingness to abide the law had been called into question. All these were matters about which Commissioner Stewart had firm views. They had been expressed on numerous occasions in a final way. A fair-minded observer might well have apprehended that Commissioner Stewart might not bring an impartial mind to bear in performing the s 9.5(2) task. It seems to me that he ought not to have performed the task pursuant to s 9.5(2), but delegated it to somebody who could consider the matter with an independent mind. In that sense the applicant was denied natural justice and the statutory task set by s 9.5(2) of the Police Service Administration Act ought to be undertaken again.
Compliance with Industrial Relations Determination 2010 – Decision of 16 January 2013
- At this point it is necessary to outline more detail as to the applicant’s appointment as Communications Room Supervisor. After the QCAT appeal decision, Acting Deputy Commissioner (Regional Operations) Henderson, wrote to the applicant, informing him that his previous position as Deputy District Officer had been filled and saying:
“Consequently, a decision must be made about appointing you to an appropriate position having regard to relevant factors. Relevant factors include your personal circumstances, your service history and the misconduct substantiated by QCAT and their related findings. I have considered those factors (other than your personal circumstances) and have identified the following positions which may be appropriate.”
- The letter then listed six positions, all in communication centres in Northern or Regional Queensland. The letter then continued:
“In considering these positions, I am conscious of the fact that the misconduct is still substantiated. Before making an appointment decision I will consider any submissions you wish to make including about your personal circumstances. …”
- On 3 January 2013 Deputy Commissioner (Regional Operations) Pointing wrote to the applicant saying that he had recently been appointed to that position and that he had responsibility for making the appointment decision, the subject of Officer Henderson’s earlier correspondence. He allowed the applicant more time to make submissions to him. On 4 January the applicant made written submissions, which are expressed to be made on legal advice and have a high legal content. The submissions ask that he be reinstated to a Deputy District Officer position; say that his home is in Rockhampton and that he does not wish to be transferred from Rockhampton, and lastly, say that, if he must be transferred to a communications centre, his preference is to be transferred to the Rockhampton Communications Centre.
- Deputy Commissioner Pointing replied, appointing him to the position at the Communications Centre at Rockhampton. The applicant asked for reasons. Rather unsatisfactorily, these were not given by Deputy Commissioner Pointing but by Deputy Commissioner Barnett on 7 February 2013. The reasons say:
“Deputy Commissioner Pointing has decided to appoint you to a position having regard to relevant factors. As identified in the correspondence the factors included the misconduct substantiated by QCAT and their related findings. The Commissioner or the Commissioner’s delegate may make an appointment decision as a risk mitigation strategy having regard to the prescribed responsibilities under section 4.8 of the Police Service Administration Act 1990. Other relevant factors included your personal circumstances. I note your preference was to remain at Rockhampton if you were to be appointed to a position at a Communications Centre.”
- The statutory and other provisions for assigning roles to officers of the police force are complicated. Their application is not made any easier by the fact that under the Police Service Administration Act assigning an officer from one role to another is called a transfer, even though it does not involve changing the location of an officer’s employment. As well, because both the legislative provisions and the provisions of the Industrial Relations Commission Determination are detailed and prescriptive, they are almost bound to cause trouble in their application, for no-one drafting statutes, regulations or Determinations can foresee all the factual permutations which will arise in the future and be dealt with according to the rules they lay down. The more detailed and prescriptive the rules are, the less likely it will be that the necessary flexibility will be available to deal with particular cases when they arise. In addition, unfortunately, the relevant Industrial Relations Determination is poorly drafted.
- With that unpromising introduction, the starting place must be s 4.8(1) of the Police Service Administration Act. That provides that the “Commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law.” That responsibility is defined by the Act as the “prescribed responsibility”. Section 4.8(4)(a) then provides that in discharging the prescribed responsibility, the Commissioner is to comply with all the relevant Awards or Industrial Agreements, Determinations and Rules made by an Industrial Authority.
- Section 5.2 of the Police Service Administration Act provides as follows:
“(1)In this section—
transfer of a police officer to a position means the appointment of a police officer to a position in which the police officer will hold the same rank and be entitled to at least the same level of salary.
(2)A decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that—
(a)include inviting applications and selection on the basis of the merit of applicants; and
(b)prevent unjust discrimination, whether in favour of or against a person.
(3)However, if a decision is made to transfer a police officer on a basis prescribed by regulation, the decision need not involve the procedures mentioned in subsection (2)(a).
(4)Written notice to a police officer of a transfer because of a decision under subsection (3) must specify the prescribed basis used for the transfer.
- This is the section which calls certain assignments of a police officer from one position to another “transfers”, notwithstanding that is not the ordinary English meaning of the word transfer. I am satisfied, although it is not entirely clear, that a combination of subsections (1), (2) and (3) mean that a transfer (as defined) must either occur after an application process or be on a basis prescribed by regulation. Here it is common ground that there was no application process. To be valid then, the transfer of the applicant from the position of Deputy District Officer to Communications Room Supervisor must have been on a basis prescribed by regulation. Regulation 4.2A(a) of the Police Service Administration Regulation 1990 was the only one suggested as being relevant. It provides that a basis specified in a Determination under the Industrial Relations Act 1999 is a basis for the transfer of an officer under s 5.2(3) of the Police Service Administration Act. Here the only Determination suggested as being relevant is entitled the “Queensland Police Service Determination 2010”. It is dated 11 August 2011. The part of that Determination which applies here (it was common ground) is Schedule 2, entitled “Lateral Transfers Non-Commissioned Officers and Constables”. Clause 1.3 of that Schedule provides that:
“(1)Lateral transfers provide a facility for the transfer of staff at their substantive rank to other jobs or locations in special circumstances without the need to advertise and fill positions on an open merit basis.”
- It would therefore seem that the word “transfer” in this Schedule is used to mean a change of duties or a change of geographical location. That is, it is used inconsistently with the legislation. At cl 1.4(3) of the Schedule, lateral transfer is defined as:
“The process of transferring (in response to one or more operational factors) and in accordance with Part 2(3) of this Schedule, within the Queensland Police Service, an employee at such employee’s existing rank to a position at an equivalent rank, without advertisement of that position.”
Clause 1.4(5) of the Schedule defines “operational factor”. It lists 17 operational factors after the introductory words, “For the purposes of this Schedule operational factors are:”. That is, the list of operational factors is exhaustive.
- The applicant’s circumstances after the decision of QCAT on appeal do not fit neatly into any of the 17 operational factors in the definition. There are some which might apply. Operational factor 5(e)(i) is “These are those positions from which there may be a need to remove an employee due to the nature of the duties …” It might have been argued that due to the doubts cast on his integrity and honesty, there was a need to remove the applicant from a job where he supervised others and had a great deal of independence – Deputy District Officer – and place him in a position where he was much more accountable and liable to supervision himself – Communications Room Supervisor. Operational factor 5(h) reads “Return from Extended Leave/Absence: this does not include return from leave entitlements eg, annual leave, long service leave, maternity leave”. Suspension does not sit easily with the idea of leave, but the word “absence” is used apparently independently in this definition, so that the applicant’s circumstances might have been construed as falling within this operational factor. There was no evidence of it before me, but it is possible to imagine there might be evidence which justified the applicant’s circumstances being characterised within operational factor (m)(i).
- However all that may be, the Commissioner’s case was not that the lateral transfer of the applicant from the position of Deputy District Officer to Communications Room Supervisor was in response to any operational factor listed in the cl 1.4(5) definition. It was said to be a lateral transfer pursuant to what it was argued was an independent head of power in the Determination: to make a lateral transfer as “a risk mitigation strategy”. At the beginning of Schedule 2 to the 2010 Determination is cl 1.2, headed “Schedule Coverage”. The clause does not provide any statement of what the Schedule is intended to cover, notwithstanding its encouraging title. There are three numbered subclauses and then two unnumbered paragraphs in the same tabulation as the subclauses. Clause 1.2(3) does seem to be intended to be an independent ground for lateral transfer, though why it would be in cl 1.2, and why it would be expressed to be subject to cl 1.3(2) I cannot fathom. What operation it could have in light of the definition of lateral transfer at cl 1.4(3) and the definition of operational factors at cl 1.4(5) is difficult to see.
- The unnumbered paragraph which follows cl 1.2(3) seems to relate to the subject matter of cl 1.2(3). Then there appears:
“The lateral transfer of members will not be used as a disciplinary sanction. However the service may transfer a member to a location as a risk mitigation strategy with regard to the Commissioner’s responsibilities pursuant to section 4.8 of the Police Service Administration Act 1990.” (my underlining).
- This unnumbered paragraph does not bear any sensible relation to any of the rest of cl 1.2. It is what the Commissioner relies on as an independent source of power to make a lateral transfer “as a risk mitigation strategy”. I do not think this paragraph can assist the Commissioner. To begin with, it deals with the transfer of a member to a location, rather than between positions. Secondly, it is very difficult to see how the paragraph could be construed as an independent source of power to transfer in light of the definitions at cl 1.4(3) and (5) of the Determination. If “risk mitigation” were meant to be an operational factor, there is no reason why it would not appear in the list of operational factors at cl 1.4(5), with a brief explanation of what is meant by the term, in the way that the other operational factors are located and described. The paragraph seems more in the nature of a general admonition and guidance as to what might properly motivate a lateral transfer otherwise made regularly for operational reasons.
- Even if this paragraph were an independent source of power to make a transfer, there is no indication from the 2010 Determination that a transfer pursuant to it should be exempt from the provisions of Part 4 of Schedule 2, which provide that proposed lateral transfers be considered by a Transfer Advisory Committee. In this case, the applicant was informed of his allocation to the position of Communications Room Supervisor without the matter being considered by a Transfer Advisory Committee. It was not until after he began disputing the assignment that the matter was sent to a Transfer Advisory Committee. Were there otherwise power to reassign an officer’s duties or role on the basis of “risk mitigation strategy”, I would regard the failure to comply with Part 4 of Schedule 2 as a substantial non-compliance with the Determination, and thus the process prescribed by legislation, for such a re-allocation of role. To send the matter to the Transfer Advisory Committee after a decision has already been made is, in effect, to render that committee’s role nugatory.
- For the above reasons, I do not think that the process of reaching the decision of 16 January 2013 was in accordance with the relevant law.
- I will hear the parties as to the specific orders which should be made as a consequence of my determinations and as to costs.
- Published Case Name:
Kennedy v Commissioner of the Qld Police Service
- Shortened Case Name:
Kennedy v Commissioner of the Queensland Police Service
 QSC 219
07 Aug 2015
No Litigation History