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  • Unreported Judgment

O'Donnell v Pointing

 

[2015] QSC 314

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

O’Donnell v Deputy Commissioner Brett Pointing & Anor [2015] QSC 314

PARTIES:

MARK O’DONNELL

(applicant)

v

DEPUTY COMMISSIONER BRETT POINTING

(first respondent)

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(second respondent)

FILE NO:

SC No 4144 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application for a Statutory Order of Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2015

JUDGE:

Flanagan J

ORDER:

  1. The decision of the first respondent made on 30 March 2015 calling upon the applicant to retire from the Queensland Police Service is set aside.
  2. The matter to which the decision relates is referred to the first respondent for further consideration according to law.
  3. I will hear the parties as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is a senior constable with the Queensland Police Service (“QPS”) – where the first respondent called upon the applicant to retire from the QPS pursuant to s 8.3(3) of the Police Service Administration Act 1990 (Qld) (“the Act”) – where s 8.3(3) of the Act allows a prescribed authority to call on an officer to retire having regard to medical opinions on the health or condition of the officer unless the commissioner takes action pursuant to 8.3(5) of the Act by appointing the officer to a position as a staff member in lieu of retirement – where the applicant submits that the first respondent failed to take into account a relevant consideration by failing to consider whether the applicant could or should be appointed to a staff position pursuant to s 8.3(5) of the Act in lieu of being called upon to retire – whether the applicant could or should have been appointed to a staff position pursuant to s 8.3(5) of the Act is a relevant consideration which the first respondent was bound to take into account in making the decision to call upon the applicant to retire pursuant to s 8.3(3) of the Act – whether, if the discretion in s 8.3(5) is a relevant consideration, the first respondent failed to take it into account in calling upon the applicant to retire

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the applicant is a senior constable with the Queensland Police Service (“QPS”) – where the applicant developed post-traumatic stress disorder – where the first respondent suspected  that the applicant was incapable of performing the duties of an officer by reason of his mental illness and directed the applicant to be medically examined by a psychiatrist pursuant to s 8.3(2) of the Police Service Administration Act 1990 (Qld) (“the Act”) – where the first respondent relied on the report of the psychiatrist to call on the applicant to retire pursuant to s 8.3(3) of the Act without first providing the applicant with a copy of the report – where the applicant submits that the rules of procedural fairness required the first respondent to disclose the psychiatrist’s report and afford him a reasonable opportunity to be heard before the decision was made – whether the applicant was denied procedural fairness

Judicial Review Act 1991 (Qld), s 20(2)(a), s 20(2)(e), s 23(b)

Police Service Administration Act 1990 (Qld), s 8.3

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074, applied

Cutler v Commissioner of Police Service [2001] QSC 161, cited

Kioa v West (1985) 159 CLR 550; [1985] HCA 81, applied

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, applied

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, applied

COUNSEL:

M Black for the applicant

P J McCafferty for the respondents

SOLICITORS:

Gilshenan & Luton Legal Practice for the applicant

PSBA Legal Services for the respondents

Introduction

  1. The applicant is a Senior Constable with the Queensland Police Service (“QPS”).  He seeks judicial review of the first respondent’s decision made 30 March 2015 calling upon the applicant to retire from the QPS.  The decision was made pursuant to s 8.3 of the Police Service Administration Act 1990 (Qld) (“the Act”). 
  2. The applicant advances two grounds of review.  First, that a breach of the rules of natural justice happened in relation to the making of the decision.[1]  Secondly, that the making of the decision was an improper exercise of power in that the first respondent failed to take a relevant consideration into account.[2]
  3. For the reasons which follow, the first respondent’s decision should be set aside because there was a breach of the rules of natural justice and the first respondent failed to take into account a relevant consideration. 

Background

  1. The applicant has been employed by the QPS since 23 May 2001.  In 2006, he was involved in a murder investigation.  It was his search of an abandoned mine that uncovered the bodies of the murder victims.  He assisted in the recovery of the bodies.  As a result of his involvement in that investigation he developed post-traumatic stress disorder (“PTSD”).
  2. On 29 April 2009, the applicant lodged a claim for compensation with WorkCover Queensland in relation to this condition.  According to the applicant, the QPS has known since June 2009 that the applicant’s psychiatrist, Dr Flanagan, diagnosed the applicant as suffering from PTSD.[3]
  3. On 27 March 2009, the applicant was suspended from duty and in August 2009 his suspension continued without pay.  The suspension related to the applicant having been charged with certain indictable offences.  He has not returned to duty since 27 March 2009. 
  4. All matters involving the indictable offences were resolved by the end of September 2012.  The QPS, however, commenced disciplinary proceedings against the applicant approximately one year later in 2013.  The applicant is currently awaiting the outcome of these disciplinary proceedings.[4]
  5. In September 2014, the applicant was contacted by an officer from the Public Safety Business Agency seeking the applicant’s attitude towards the Agency providing him with assistance to progress to a medical retirement due to his ongoing absence from duty.  The email, dated 10 September 2014, attached an informed consent form seeking the applicant’s consent to the Agency contacting Dr Flanagan.  The email relevantly states:[5]

“With your permission we may be able to use this information to assist you.  If I need to speak to Dr Flanagan I will need to enquire about your current or future capacity to work for Queensland Police Service as a front line police officer or if you have any capacity to perform alternative roles of work with the QPS or even with an external agency.

If Dr Flanagan advises that work with QPS in any capacity is not possible, then we move to a medical retirement process.”

  1. On 2 October 2014 the QPS wrote to the applicant in the following terms:[6]

“We are reviewing the impact of your current medical condition on your capacity to perform your duties of your employment as Senior Constable at Yeppoon Station.

In according with s. 8.3 of the Police Service Administration Act 1990 (the Act), I reasonably suspect that by reason of PTSD diagnosis you are incapable of performing the duties of office, or any other duties as an officer that you might reasonably be directed to perform.

The Queensland Police Service (QPS) offers the following grounds as reasons:

  • Last medical information advised diagnosis or PTSD.

Unless compelling evidence indicates otherwise, an independent medical opinion regarding the matter will be obtained pursuant to s 8.3 (1) of the Act.

You are offered the opportunity to provide written notification regarding your acceptance or otherwise of the reasonable suspicion within 14 days of receipt of this letter to Assistant Commissioner, Central Region.”

Enclosed with this letter was a copy of section 8.3 of the Act.

  1. The applicant’s solicitors replied to this letter on 21 October 2014.  The response requested that the Queensland Police Service reconsider the matter and not proceed with the process under s 8.3 of the Act.[7]  By letter dated 15 January 2015 from the Agency, the applicant was directed to undergo a medical examination by Dr Andrew Nielsen, psychiatrist.  This letter relevantly stated:[8]

“It is necessary for you to undergo a medical examination by an independent medical examination by an independent medical doctor (psychiatrist) in accordance with s.8.3 of the Police Service Administration Act 1990.  Further, pursuant to s. 8.3 (2A), if you fail to comply in all respects without reasonable cause, it is to be conclusively presumed that my suspicion is true.  …

If you wish the doctor to review any medical reports, x-rays or scans that you may have regarding your condition, please provide these to the doctor, preferably as soon as possible, prior to the examination or at the time of the examination.

The doctor will be provided with a synopsis of background information by the QPS and a copy will be provided to you prior to the examination.

When the doctor has concluded the examination a report will be provided to the QPS.  The provision of the report to the QPS by the doctor may take in excess of 2 – 3 weeks.  Where the doctor advises that it is appropriate, you will be provided with a copy of the report.  In addition, and in consultation with you, your treating health professional will also be provided with a copy.

Following the receipt of the report, the QPS will consider the information provided and inform you in writing of the action the QPS intends to take.  This will occur, unless justifiable, within 14 days of the receipt of the report from the doctor.”

  1. On 9 February 2015 Dr Nielsen was sent a letter of instruction from the Agency together with certain materials, which included a copy of s 8.3 of the Act, a set of issues and questions to be addressed in Dr Nielsen’s report, a document entitled “General Duties/Frontline Police Officers” and a further document entitled “Mark O’Donnell - Background Information and Timeline”.[9]  The applicant attended upon Dr Nielsen for three hours on 13 February 2015.  Dr Nielsen then produced his report dated 13 February 2015. 
  2. The decision of the first respondent which called upon the applicant to retire was communicated by letter dated 30 March 2015.  It is necessary to set out the terms of this letter:[10]

“I refer to your examination by Dr Andrew Nielsen on your current medical condition.

Dr Nielsen is of the opinion that you are not fit to return to operational policing.  He states that the stress of operational policing could well cause a relapse of your medical condition.  There is no possibility that your fitness will increase with time and that the vulnerability to exacerbation of your medical condition would be permanent.

Dr Nielsen further clarifies that in his opinion being an employee of the Queensland Police Service per say [sic] should not have an impact on your recovery and capacity to return to work so long as you are not exposed to actual dangerous situations as occurred in frontline policing, or subjected to disciplinary action.

These restrictions are not feasible as they are part of the inherent requirements of a front line police officer and there is no reasonable adjustment that may take place to alter the duties of a front line police officer to facilitate a return to work with these restrictions.

Sections 8.3 (3) (4) (5) of the Police Service Administration Act 1990 (the Act) states:

‘(3)If, having regard to any medical opinions expressed by medical practitioners (including any such opinions furnished by the officer) on the health or condition of the officer concerned, or because of the presumption prescribed by subsection (2), the prescribed authority is satisfied that the officer should not continue to be required to perform the duties of office, then, unless the Commissioner takes action authorised by subsection (5), the prescribed authority may call upon the officer to retire from the Service within a time specified by the prescribed authority.

(4)If the officer called upon to retired does not retire within the time specified, the prescribed authority may dismiss the officer from the Service.

(5)If the Commissioner believes the officer referred to in subsection (3) is sufficiently fit to perform duties as a staff member, then in lieu of the action authorised by subsections (3) and (4) and without limiting the commissioner’s powers in relation to the officer, the Commissioner may -

(a)in writing, appoint the officer to a position as a staff member, at a rate of salary not less than that of the officer immediately before such appointment;

and

(b)may direct the officer to report for and perform duty in the position to which the officer is so appointed.’

Having regard to the medical opinion of Dr Nielsen regarding your present condition, I am satisfied you should not continue to perform your duties of office and pursuant to Section 8.3 (3) of the Act, I hereby call upon you to retire from the Service with effect from midnight on 15 May 2015.

Please complete and return the attached form indicating your acceptance or otherwise of this direction by close of business on 24 April 2015.”

  1. It is common ground that prior to the making of his decision, the first respondent had not supplied the applicant with a copy of Dr Nielsen’s report.  Although the email to the applicant from the Agency dated 10 September 2014 referred to the issue of the applicant having any capacity to perform alternative roles of work with the Queensland Police Service, no mention of this issue was made in the first respondent’s letter of 30 March 2015.
  2. The solicitors for the applicant wrote to the first respondent on 10 April 2015 seeking an extension of time within which to respond to the direction to retire:[11]

“We note that Senior Constable O’Donnell has been given until 24 April 2015 to complete and return the form indicating his acceptance or otherwise of your direction to retire.  In Mr Fogarty’s covering email he advised Senior Constable O’Donnell that Dr Nielsen’s report can be accessed through Senior Constable O’Donnell’s treating psychiatrist Dr Flanagan.  We advise that Dr Flanagan’s office has been closed over the Easter period, and it does not reopen until next week.  You will appreciate that Senior Constable O’Donnell wishes to consider that report before electing how to respond to your direction.”

  1. The extension of time was granted until 1 May 2015,[12] however on 27 April 2015 the applicant filed the present application for statutory order of review.

The relevant legislative provisions

  1. The decision under review was made pursuant to s 8.3 of the Act.  Section 8.3 falls within Part 8 of the Act which deals with resignation, retirement and change in status.
  2. In accordance with s 8.2 there are three circumstances under which an officer retires from the QPS:
  1. upon obtaining the age prescribed by regulations in relation to officers of the class to which that officer belongs;
  2. when called upon under s 8.3 to retire from the service; and
  3. upon attaining the age of 60 years.
  1. Section 8.3 provides:

8.3Unfitness for duty on medical grounds

(1)If the commissioner suspects on reasonable grounds that an officer—

(a)by reason of physical or mental infirmity is incapable of; or

(b)for any other reason pertaining to the officer's health or condition, is unfit for the purpose of;

performing the duties of office, or any other duties as an officer that the commissioner might reasonably direct the officer to perform, the commissioner is to advise the officer, in writing, of the suspicion and if upon receipt of such advice the officer does not accept the truth of the commissioner’s suspicion, the commissioner is to obtain medical opinion on the matter.

(2)For the purposes of subsection (1), the commissioner—

(a)may nominate any medical practitioner or medical practitioners to examine the officer concerned and report to the commissioner on the physical or mental health or other relevant condition of the officer, as the case may require; and

(b)may direct the officer concerned to submit to examination by the nominated medical practitioner or medical practitioners.

(2A)If the officer concerned fails without reasonable cause to comply in all respects with a direction given by the commissioner, it is to be conclusively presumed that the commissioner's suspicion is true.

(3)If, having regard to any medical opinions expressed by medical practitioners (including any such opinions furnished by the officer) on the health or condition of the officer concerned, or because of the presumption prescribed by subsection (2A), the prescribed authority is satisfied that the officer should not continue to be required to perform the duties of office, then, unless the commissioner takes action authorised by subsection (5), the prescribed authority may call upon the officer to retire from the service within a time specified by the prescribed authority.

(4)If the officer called upon to retire does not retire within the time specified, the prescribed authority may dismiss the officer from the service.

(5)If the commissioner believes the officer referred to in subsection (3) is sufficiently fit to perform duties as a staff member, then in lieu of the action authorised by subsections (3) and (4) and without limiting the commissioner's powers in relation to the officer, the commissioner may—

(a)in writing, appoint the officer to a position as a staff member, at a rate of salary not less than that of the officer immediately before such appointment; and

(b)direct the officer to report for and perform duty in the position to which the officer is so appointed.

(6)The person appointed to a position under subsection (5) thereby ceases to be an officer and is relieved of all powers and duties of a constable at common law or under any Act or law.

(6A)To remove any doubt, it is declared that the following arrangements between the commissioner and the PSBA chief executive officer must be made under the Public Service Act 2008 and not under this Act—

(a)an arrangement for the services of a person appointed to a position under subsection (5) to be made available to the PSBA;

(b)an arrangement under which a person appointed to a position under subsection (5) performs work for the PSBA.

(7)In subsections (3) and (4)—

prescribed authority means—

(a)the Governor in Council, in respect of an officer appointed to office by the Governor in Council;

(b)the commissioner, in respect of an officer appointed to office by the commissioner.”

  1. The process of the Commissioner calling upon an officer to retire from the service commences with the Commissioner suspecting on reasonable grounds that the officer is “incapable of” or is “unfit for the purpose” of performing “the duties of office, or any other duties as an officer that the commissioner might reasonably direct the officer to perform”.  In those circumstances, the Commissioner is required to advise the officer in writing of the suspicion.  If the officer does not accept the truth of the Commissioner’s suspicion, then the Commissioner is to obtain medical opinion on the matter.  In the present case, it is common ground that the applicant did not accept the truth of the Commissioner’s suspicion.
  2. Section 8.3(2)(b) of the Act gives the Commissioner the power to direct the officer to submit to an examination by a nominated medical practitioner or medical practitioners.  The consequence of the officer not complying with this direction is that it is to be conclusively presumed that the Commissioner’s suspicion is true.[13]  As a result of this presumption, the officer may be called upon to retire from the service.[14]
  3. The power to call upon an officer to retire contained in s 8.3(3) is discretionary.  It is a power that may be exercised by the “prescribed authority”.  This term is defined in s 8.3(7) to mean:
  1. the Governor in Council, in respect of an officer appointed to office by the Governor in Council; and
  2. the Commissioner, in respect of an officer appointed to office by the Commissioner.
  1. The discretion under section 8.3(3) is enlivened if the prescribed authority is satisfied that the officer should not continue to be required to perform the duties of office.  The prescribed authority’s satisfaction is formed (in the absence of a presumption under s 8.3(2A)) “having regard to any medical opinions expressed by medical practitioners (including any such opinions furnished by the officer) on the health or condition of the officer concerned”.
  2. The prescribed authority is not required to exercise the discretion to call upon an officer to retire in circumstances where the Commissioner takes action authorised by s 8.3(5).  This is because if the Commissioner was to appoint the officer to a position as a staff member, there would be no necessity to call upon the officer to retire from the service.  If an officer is appointed as a staff member, the officer ceases to be an officer and is relieved of all powers and duties of an officer.[15] 
  3. Significantly, where the officer called upon to retire does not retire within the time specified, the prescribed authority may dismiss the officer from the service.[16]
  4. The procedure under section 8.3 may ultimately lead to a serious consequence for the officer, namely dismissal from the service.
  5. As a matter of statutory construction it may be accepted that the obtaining by the Commissioner of a medical opinion or opinions is an essential aspect of the procedure under s 8.3.  Section 8.3(1) requires the Commissioner to obtain medical opinion where the officer does not accept the truth of the Commissioner’s suspicion.  Section 8.3(2)(a) permits the Commissioner to nominate any medical practitioner or medical practitioners to examine the officer and to report to the Commissioner on the physical or mental health or other relevant condition of the officer.  Section 8.3(2)(b) gives the Commissioner the power to direct the officer to submit to such an examination.  Section 8.3(3) directs the prescribed authority to have regard to the medical opinion (including any such opinions furnished by the officer) in exercising the discretion to call upon the officer to retire.

Breach of the rules of natural justice

  1. It is common ground that the first respondent’s decision pursuant to s 8.3(3) of the Act affected the applicant’s rights or interest and the rules of natural justice apply to the making of the decision.[17]
  2. The relevant issue to be determined is whether the applicant was, in the circumstances of the case, afforded natural justice.  As Mason J (as his Honour then was) observed in Kioa v West:[18]

“The critical question in most cases is not whether the principles of natural justice apply.  It is:  what does the duty to act fairly require in the circumstances of the particular case?”

  1. The applicant submits that the content of the duty to act fairly required the first respondent to disclose Dr Nielsen’s report to the applicant and give the applicant a reasonable opportunity to be heard before making the decision.  The applicant relied on the following statement of Mason J in Kioa v West:[19]

“In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstance of the particular case.  The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interest of the individual and the interest and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.” (citation omitted)

  1. The applicant also referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[20] quoting Alphaone:[21]

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.  That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” (citations omitted)

  1. The applicant therefore submits that the terms of s 8.3(3) specifically contemplates that the officer concerned will be given such an opportunity because it requires the decision-maker to have regard to “any medical opinions expressed by medical practitioners (including any such opinions furnished by the officer)”.  Unless the officer is given a reasonable opportunity to be heard, and to know the nature and content of adverse material, he or she will not realistically be able to furnish any relevant medical opinions (or submissions to advance his or her case).[22]
  2. The applicant identifies the following circumstances which he says demonstrates that no reasonable opportunity to be heard was given to him:[23]
  1. he was not informed of the nature and content of Dr Nielsen’s opinions before the decision was made;
  2. he had no opportunity to comment or make submissions as to Dr Nielsen’s opinion, or being called upon to retire; and
  3. he had no opportunity to “furnish” his own medical opinions.
  1. Whilst the respondents accept that the applicant was not furnished with Dr Nielsen’s report prior to the making of the decision, they submit that the applicant was informed of “the substance of the complaint or concern”.[24]  In support of this submission the respondents rely on the contents of the letter of 2 October 2014 which I have quoted in paragraph [9] above.  This letter however only communicated the Commissioner’s suspicion for the purposes of s 8.3(1) of the Act and made reference to the PTSD diagnosis.  No decision had been made at that stage to call upon the applicant to resign.  Such a decision could only be made, in accordance with s 8.3(3), by the first respondent having regard to medical opinion which was yet to be obtained.
  2. I reject the respondents’ submission that the letter of 2 October 2014 provided sufficient details to enable the applicant to make any meaningful response and to obtain his own medical opinion.  All that the letter expressly offered to the applicant was “the opportunity to provide written notification regarding [his] acceptance or otherwise of the reasonable suspicion …”.
  3. As I have previously observed,[25] the obtaining by the Commissioner of a medical opinion or opinions is an essential aspect of the procedure under s 8.3.  The importance of the medical opinion to the decision-making process is evident when one has regard to the power of the Commissioner under s 8.3(2)(a) and (b) to both nominate the medical practitioner and to direct the officer concerned to submit to examination by that nominated medical practitioner.  The report is therefore a specific report created after the officer has been directed to submit to medical examination.
  4. In the present case, Dr Nielsen examined the applicant for three hours.  From an examination of Dr Nielsen’s report, it is apparent that he took an extensive history from the applicant.  The report details psychiatric conditions in addition to PTSD identified in the letter of 2 October 2014.  The report also contains details as to the applicant’s desire and plans to continue working for the QPS.  The applicant is recorded as identifying the primary reason for him not returning to work as being the outstanding disciplinary proceedings.[26]  Dr Nielsen’s report is a detailed report of 18 pages.  The letter of 2 October 2014 is in my view wholly inadequate in conveying “the substance of the adverse material”[27] or the “nature and content of adverse material”.[28]  I accept the applicant’s submission that, relevantly, the adverse material was Dr Nielsen’s report but neither it nor its “substance” was disclosed to the applicant.  The only disclosure of Dr Nielsen’s opinions occur in the letter of 30 March 2015 in which the actual decision was conveyed.  That is, even it was thought that the letter of 30 March 2015 conveyed the substance of the adverse material, such communication occurred after the decision was made.  It follows that the applicant was deprived of any opportunity to meaningfully respond.  The fact that from 2 October 2014 the applicant was provided with an opportunity to make submissions to the Commissioner and obtain his own medical opinions is not to the point.  The essential material upon which the decision to call upon an officer to retire is made is the medical opinion obtained by the Commissioner in accordance with the process under s 8.3 of the Act.  If this essential document or its substance is not provided to the applicant prior to the making of the decision, it cannot be said that the applicant has been afforded procedural fairness. 
  5. The respondents further submit that at a practical level the fact that the applicant was not given the opportunity to comment upon or make submissions in relation to Dr Nielsen’s report is of no moment.  This is because, according to the respondents, the applicant and his lawyers lacked the expertise to comment upon the opinion of Dr Nielsen.[29]  This submission should be rejected on a number of bases.  First, had Dr Nielsen’s report been provided to the applicant prior to the making of the decision, the applicant would have been afforded the opportunity to obtain his own medical report.  Secondly, by not providing Dr Nielsen’s report, the applicant has been deprived of any opportunity to correct any errors in that report as to the applicant’s relevant history or statements as to his desire to return to work with the QPS.  More generally however, prior to the decision being made, the applicant has been deprived of the opportunity to make any submissions as to why, on the basis of Dr Nielsen’s report, he should not be called upon to retire.  This opportunity, in the context of the present case, is not without substance.  As part of his assessment of the applicant, Dr Nielsen was requested to answer the following question:

“What impact does remaining in the employ of the Queensland Police Service have on the officer’s recovery and capacity to return to work?”

  1. Dr Nielsen’s response was as follows:[30]

“Being an employee of the Queensland Police Service per say [sic] should not have an impact on the employee’s recovery and capacity to return to work so long as he was not exposed to actual dangerous situations as occurred on frontline policing, or subjected to disciplinary action. … If he were to be found guilty of misconduct then he could well have another episode of disassociation, as described by Dr Flannigan [sic], where he was ‘unable to control his actions or fully understand what he was doing’.”

  1. A possible submission that the applicant could have made in relation to Dr Nielsen’s observation is that the outstanding disciplinary proceedings against him should be finalised before any decision calling upon him to retire was made.  It is irrelevant whether any such submission would have been made by the applicant.  What is relevant, however, is that the applicant has been denied the opportunity of making any such submission.
  2. Dr Nielsen’s report also considered the question of whether the applicant was fit to work in the public service.  He was asked the following question:

“Will the officer now and in the foreseeable future be able to undertake any form of work in either the private or public sector/s?”

Dr Nielsen’s response was:[31]

“In my opinion, Mr O’Donnell would be fit for work outside the Queensland Police Service in the private and/or public sectors.”

Had a copy of Dr Nielsen’s report been provided to the applicant prior to the making of the decision, it was open to the applicant to make a submission that even if the first respondent was satisfied that the applicant should not continue to be required to perform the duties of office, prior to the first respondent calling upon him to retire, the first respondent should, in light of Dr Nielsen’s opinion, consider the applicant sufficiently fit to perform duties as a staff member.  The applicant was not afforded this opportunity.

  1. In the course of oral submissions, counsel for the respondents submitted that in certain circumstances because of medical concerns it may not be advisable for an applicant to receive the whole of a psychiatric report.  Whilst this may be accepted, it remains the case that for the purposes of affording procedural fairness, it remains necessary to convey the substance of the adverse material to a person in the applicant’s position.  This was not done.

Failing to take into account a relevant consideration

  1. The applicant submits that the first respondent failed to take into account a relevant consideration, namely whether the applicant could or should be appointed to a staff position pursuant to s 8.3(5) of the Act rather than being called upon to retire from the service.[32] 
  2. The applicant seeks to read the words in s 8.3(3), “then, unless the commissioner takes action authorised by subsection (5)”, as, in effect, constituting a precondition to the exercise of the discretion to call upon the officer to retire. 
  3. The discretion to be exercised under s 8.3(3) is, in my view, separate and discrete from the discretion to be exercised under s 8.3(5).  The discretion under s 8.3(3) is exercisable by the “prescribed authority” which in certain circumstances may not be the Commissioner, whereas the discretion under s 8.3(5) is only exercisable by the Commissioner.  The relevant matter of which the prescribed authority must be satisfied under s 8.3(3) is different to the test under s 8.3(5).  Before the prescribed authority can call upon an officer to retire it must be satisfied “that the officer should not continue to be required to perform the duties of office” whereas under s 8.3(5) if the Commissioner believes that “the officer referred to in subsection (3) is sufficiently fit to perform duties as a staff member” then the Commissioner may appoint the officer to a position as a staff member.  The words in section 8.3(5) “then in lieu of the action authorised by subsections (3) and (4)” are also indicative of the discretion under section 8.3(5) being separate and discrete from the discretion under section 8.3(3). 
  4. A decision-maker only fails to take into account a consideration which he or she is bound to take into account in making the decision.  As stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[33]

“What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.”

  1. The fact that the discretions are separate and discrete does not determine whether, prior to calling upon the officer to retire, the Commissioner must consider if the discretion under s 8.5(5) could or should be exercised. 
  2. The applicant accepts that the words of s 8.3(3) do not expressly require consideration of subsection (5) before the exercise of power under subsection (3).[34]  The general structure of s 8.3 does however, in my view, support the applicant’s submission. 
  3. The applicant submits that the subject matter, scope and purpose of the Act indicates that the option of appointing an officer to an alternative position is a mandatory consideration under s 8.3(3).  In particular, the applicant identifies the following powers:[35]

(a)The Commissioner is responsible for the administration and management of the QPS including appointing officers to positions within the QPS.[36]  The Commissioner has the power to transfer officers to alternative positions within the QPS, including whether there are “medical grounds” why the officer should “vacate or transfer to, a particular location”.[37]  Under s 5.13(1), an “officer who is transferred to a position must accept the transfer, even if the officer has not applied for it”.

(b)The Commissioner also has responsibility over Public Service staff members who perform duties for the QPS.[38]  Under s 8.3(5), the Commissioner has the power to appoint an officer who is not fit for policing duties as a staff member to undertake alternative duties.  An officer who is so appointed ceases to be a police officer and is relieved of the powers and duties of a constable.[39]  

  1. Section 8.3 is headed “Unfitness for duty on medical grounds”.  The section generally outlines the required procedure for the retirement of an officer on medical grounds.  The consequence of an officer not retiring when called upon is that the officer may be dismissed.[40]  If the officer was not medically unfit for duty, the officer would ordinarily be able to serve as a police officer until attaining the age prescribed by regulation or attaining the age of 60 years.[41]  That is, subject to being fit for duty, an officer has a significant degree of employment security.  An officer’s employment is of course subject to the exercise of the various powers of the Commissioner identified above.  It is significant that the Commissioner’s power to appoint an officer who is not fit for policing duties as a staff member to undertake alternative duties is itself found in a subsection of s 8.3.  The words in s 8.3(3) namely, “then, unless the Commissioner takes action authorised by subsection (5)” links the exercise of discretion under s 8.3(3) with that under s 8.3(5).  The words are not merely limited to stating the obvious, namely that if the Commissioner decides to appoint the officer to a position as a staff member under s 8.3(5) it is unnecessary for the Commissioner to call upon the officer to resign.  The appointment under s 8.3(5) has the effect that the person ceases to be an officer.[42]  The words which link these two discretions serve a wider and more beneficial purpose.
  2. Calling upon an officer to retire may ultimately lead to dismissal and a loss of what may otherwise be considered secure employment.  Section 8.3 therefore outlines a legislative process.  It commences with the Commissioner having a suspicion on reasonable grounds; the communication of that suspicion to the officer; the acceptance or otherwise by the officer of that suspicion; the medical examination of the officer; the consideration of the medical opinions by the prescribed authority; satisfaction by the prescribed authority that the officer should not continue to be required to perform the duties of office; consideration by the Commissioner of whether action should be taken under subsection (5); the calling upon the officer to retire; and, if the officer refuses to do so, dismissing the officer from the service.
  3. This detailed procedure strikes a balance between the Commissioner’s responsibilities in relation to the administration and management of the QPS and an officer’s employment security. 
  4. A further indication that s 8.3, at least in part, seeks to protect the position of an officer who on medical grounds is unable to perform the duties of office is s 8.3(5)(a) where it refers to the Commissioner appointing the officer to a position as a staff member “at a rate of salary not less than that of the officer immediately before such appointment”.  This provision suggests that the procedure under s 8.3 does not seek to punish or unnecessarily disadvantage an officer who is medically unfit for duty on medical grounds. 
  5. The procedure does however, in my view, require the Commissioner, having determined that the officer should not continue to be required to perform the duties of office but is however sufficiently fit to perform duties as a staff member, to consider whether the discretion under s 8.3(5) should be exercised.
  6. The discretion under s 8.3(3) is not always exercised by the Commissioner or his delegate but may be exercised by the Governor in Council in respect of an officer appointed to office by the Governor in Council.  It would therefore be incumbent upon the Governor in Council having been satisfied that the officer should not continue to be required to perform the duties of office, but prior to calling upon the officer to retire, to enquire of the Commissioner whether he intends to take action authorised by s 8.3(5) to appoint the officer to a position as a staff member.  Where the discretion under s 8.3(3) is exercisable by the Commissioner, it is incumbent upon the Commissioner prior to calling upon the officer to retire to consider whether he should take action authorised by s 8.3(5). 
  7. The words in s 8.3(5), “in lieu of” also support the applicant’s construction.  The exercise of discretion under s 8.3(5) to appoint the officer to a position as a staff member is conditioned on the Commissioner’s belief that “the officer referred to in subsection (3) is sufficiently fit to perform duties as a staff member”.  I construe the words “the officer referred to in subsection (3)” as constituting a shorthand reference to the officer whom the prescribed authority is satisfied should not continue to be required to perform the duties of office.  The words “in lieu of” mean “instead of”. 
  8. The effect of s 8.3(5) therefore is that where the Commissioner is satisfied that the officer is unfit for duty as an officer but is otherwise fit to perform duties as a staff member, then instead of calling upon the officer to retire or dismissing the officer if he or she does not retire, the Commissioner may appoint the officer to a position as a staff member.  The words “and without limiting the Commissioner’s powers in relation to the officer” should be construed as simply preserving the Commissioner’s other powers under the Act such as the power to transfer the officer. 
  9. If the Commissioner has the relevant belief prescribed by s 8.3(5), or if there is evidence upon which the Commissioner could have such a belief, then the Commissioner is in my view, bound to consider whether the officer should be appointed to a staff position instead of being called upon to retire under s 8.3(3) or dismissed under s 8.3(4). 
  10. In the present case it is evident from the first respondent’s letter dated 30 March 2015[43] that in deciding to call upon the applicant to retire no consideration was given to any exercise of discretion under s 8.3(5).  This was in circumstances where Dr Nielsen’s report[44] expressly provided some evidentiary basis to support a belief that the applicant is sufficiently fit to perform duties as a staff member. 
  11. Whilst the first respondent did identify from Dr Nielsen’s report that the applicant being an employee of the QPS per se should not have an impact on the applicant’s recovery and capacity to work, the first respondent concluded that the restrictions identified by Dr Nielsen were not feasible as they form part of the inherent requirements of a front line police officer.[45] If this was an attempt to consider s 8.3(5) of the Act, it was an erroneous interpretation of what s 8.3(5) actually requires. Section 8.3(5) is a consideration as to whether the officer in question is able to perform the duties of a “staff member”. Staff member is defined in s 1.4 of the Act as meaning “a person who is a staff member of the police service under section 2.5(1)”. Section 2.5(1) of the Act identifies that staff members are “officers of the public service assigned to perform duties in the police service”. Officers who are made staff members pursuant to s 8.3(5) thereby cease to be an officer and are relieved of all powers and duties of a constable at common law.[46] The fact that the first respondent’s considerations were limited to whether adjustments could be made to the duties of a front line officer shows that the first respondent failed to consider whether the discretion under s 8.3(5) could or should be exercised.
  12. The first respondent therefore failed to take into account a relevant consideration that he was bound to take into account. 

Disposition

  1. I make the following orders:
  1. The decision of the first respondent made on 30 March 2015 calling upon the applicant to retire from the Queensland Police Service is set aside.
  1. The matter to which the decision relates is referred to the first respondent for further consideration according to law.
  1. I will hear the parties as to costs.

Footnotes

[1] Judicial Review Act 1991 (Qld) s 20(2)(a).

[2] Judicial Review Act 1991 (Qld) ss 20(2)(e), 23(b).

[3] Affidavit of Mark John O’Donnell sworn 11 June 2015, [17].

[4] Affidavit of Mark John O’Donnell sworn 11 June 2015, [34]-[35].

[5] Exhibit “JLM-1” to the affidavit of Julia Louise Maccarone affirmed 22 October 2015.

[6] Exhibit “MJO-5” to the affidavit of Mark John O’Donnell sworn 11 June 2015.

[7] Exhibit “CBP-01” to the affidavit of Craig Barry Pratt sworn 16 October 2015.

[8] Exhibit “MJO-7” to the affidavit of Mark John O’Donnell sworn 11 June 2015.

[9] Exhibit “JLM-1” to the affidavit of Julia Louise Maccarone affirmed 3 July 2015.

[10] Exhibit “MJO-1” to the affidavit of Mark John O’Donnell sworn 11 June 2015.

[11] Exhibit “MJO-2” to the affidavit of Mark John O’Donnell sworn 11 June 2015.

[12] Exhibit “MJO-3” to the affidavit of Mark John O’Donnell sworn 11 June 2015.

[13] Police Service Administration Act 1990 (Qld) s 8.3(2A).

[14] Police Service Administration Act 1990 (Qld) s 8.3(3).

[15] Police Service Administration Act 1990 (Qld) s 8.3(6).

[16] Police Service Administration Act 1990 (Qld) s 8.3(4).

[17] Respondents’ outline of submissions dated 9 October 2015, [17].

[18] (1985) 159 CLR 550, 585.

[19] (1985) 159 CLR 550, 585.

[20] (2006) 228 CLR 152, 162 [32].

[21] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 590-591.

[22] Applicant’s outline of submissions dated 1 October 2015, [28].

[23] Applicant’s outline of submissions dated 1 October 2015, [30].

[24] Respondents’ outline of submissions dated 9 October 2015, [28].

[25] See paragraph [26] above.

[26] Exhibit “MJO-8” to the affidavit of Mark John O’Donnell sworn 11 June 2015, 8.

[27] Cutler v Commissioner of Police Service [2001] QSC 161, [82].

[28] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 162 [32].

[29] Respondents’ outline of submissions dated 9 October 2015, [33].

[30] Exhibit “MJO-8” to the affidavit of Mark John O’Donnell sworn 11 June 2015, 17.

[31] Exhibit “MJO-8” to the affidavit of Mark John O’Donnell sworn 11 June 2015, 17.

[32] Applicant’s outline of submissions dated 1 October 2015, [32]

[33] (1986) 162 CLR 24, 39-40.

[34] Transcript of proceedings 23 October 2015, 1-6, lines 5-7.

[35] Applicant’s outline of submissions in reply dated 16 October 2015, [11].

[36] Police Service Administration Act 1990 (Qld) s 4.8; Police Service Administration Regulation 1990 (Qld), r 2A.1.

[37] Police Service Administration Act 1990 (Qld) s 5.2; Queensland Police Service Certified Agreement 2013 (Qld) cl 50.

[38] Police Service Administration Act 1990 (Qld) s 2.5(2).

[39] Police Service Administration Act 1990 (Qld) s 8.3(6).

[40] Police Service Administration Act 1990 (Qld) s 8.3(4).

[41] Police Service Administration Act 1990 (Qld) s 8.2(a), (c).

[42] Police Service Administration Act 1990 (Qld) s 8.3(6).

[43] See paragraph [12] above.

[44] In particular those passages set out in paragraphs [37] and [38] above.

[45] See paragraph [12] above.

[46] Police Service Administration Act 1990 (Qld) s 8.3(6).

Close

Editorial Notes

  • Published Case Name:

    O'Donnell v Deputy Commissioner Brett Pointing & Anor

  • Shortened Case Name:

    O'Donnell v Pointing

  • MNC:

    [2015] QSC 314

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    05 Nov 2015

Litigation History

No Litigation History

Appeal Status

No Status