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Norvill v Commissioner of Queensland Police Service[2022] QCA 104

Norvill v Commissioner of Queensland Police Service[2022] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION:

Norvill v Commissioner of Queensland Police Service & Anor [2022] QCA 104

PARTIES:

JACQUELINE NORVILL

(appellant)

v

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(first respondent)

MAURICE CARLESS, ASSISTANT COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(second respondent)

FILE NO/S:

Appeal No 6636 of 2021

SC No 6319 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 133 (Rafter AJ)

DELIVERED ON:

10 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2021

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDERS:

  1. The appeal be dismissed.
  2. The appellant pay the respondents’ costs of the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – where the appellant sought statutory review of a decision not to impose a professional development strategy pursuant to the Police Service Administration Act 1990 (Qld) – where the appellants application for review was dismissed at first instance – where the appellant contended that no valid decision had been made due to a breach of the rules of natural justice – where the judge at first instance determined that the decision to impose a professional development strategy was a preliminary step in the disciplinary process – where, as a preliminary step, there was no requirement to give the appellant an opportunity to make submissions at that stage of the disciplinary process – whether the judge at first instance erred in construction of the Act – whether the exercise of power under the Act is conditioned on the observance of the rules of nature justice – where the Act provides a multi-stage process for discipline – where the Act provides no obligation to afford natural justice at the first and second stage of the disciplinary process

Judicial Review Act 1991 (Qld)

Police Service Administration Act 1990 (Qld), s 7.2, s 7.3, s 7.5, s 7.9, s 7.10, s 7.11, s 7.25, s 7.26, s 7.27, s 7.28, s 7.29, s 7.30, s 7.32, s 7.33, s 7.35

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

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, cited

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

COUNSEL:

M Black for the appellant

S A McCleod QC for the respondent

SOLICITORS:

Gnech & Associates for the appellant

Queensland Police Service Legal Service Unit for the respondent

  1. [1]
    SOFRONOFF P:  I agree with reasons of Boddice J and with the orders proposed.
  2. [2]
    FRASER JA:  I agree that the orders proposed by Boddice J should be made for the reasons given by his Honour.
  3. [3]
    BODDICE J:  On 4 May 2021, an application brought by the appellant, a police officer with the Queensland Police Service, for a statutory order of review in respect of a decision of the first respondent, determining that a professional development strategy would not be imposed pursuant to s 7.9(2) of the Police Service Administration Act 1990 (Qld) (“the Act”) was dismissed, with costs.
  4. [4]
    The appellant contended that no valid decision had been made because there had been a breach of the rules for natural justice in making the determination not to impose a professional development strategy as part of a disciplinary complaint process.
  5. [5]
    The primary Judge found that the decision not to impose a professional development strategy was a preliminary step in the disciplinary process, and there was no requirement to give the applicant an opportunity to make submissions at that stage.
  6. [6]
    The appellant appeals that decision.  The grounds of appeal are that, upon a true construction of the relevant provisions of the Act, the first respondent’s decision-making power under s 7.9 of that Act was regulated by requirement for procedural fairness, and the failure to do so rendered that decision invalid with the consequence that the second respondent had no power to make a decision under s 7.27 of that Act.

Agreed facts

  1. [7]
    On 30 December 2017, the appellant was suspended from duty as a police officer following complaints about her conduct.
  2. [8]
    At around the same time, criminal charges were commenced against the appellant.  Those charges were withdrawn in October 2018.
  3. [9]
    On 8 March 2019, the Queensland Police Service completed an investigation into the complaints made against the appellant.
  4. [10]
    On 11 November 2019, an Assistant Commissioner issued a disciplinary proceeding notice, alleging certain misconduct based on the complaints made against the appellant.
  5. [11]
    On 27 December 2019, the appellant, through her legal representatives, provided written submissions to that Assistant Commissioner contending that the disciplinary proceeding was flawed and should be discontinued and advising that the appellant was ready and willing to participate in a professional development strategy.
  6. [12]
    On 29 January 2020, that Assistant Commissioner advised the appellant that he would be unlikely to conclude the disciplinary decision before his retirement, effective 21 February 2020.
  7. [13]
    On 7 February 2020, a delegate of the first respondent reconsidered the matter, after representations had been received from the appellant.  That delegate determined the appellant would not be placed on a professional development strategy under s 7.9 of the Act and, further, that the complaints regarding the appellant would be referred to a “prescribed officer” under s 7.10 of the Act.  The appellant was not given an opportunity to be heard by that delegate before making those decisions.
  8. [14]
    On 5 March 2020, the Queensland Police Service advised the appellant that the second respondent had issued a new disciplinary proceeding notice.  That notice was sent to the appellant’s legal representatives on 9 March 2020.
  9. [15]
    On 17 April 2020, the appellant’s solicitors wrote to the Queensland Police Service contending that the disciplinary proceeding notice should be withdrawn and that the appellant should be given a chance to be heard on a fresh consideration of whether she should undertake a professional development strategy.
  10. [16]
    On 27 May 2020, the second respondent advised the appellant that he considered the disciplinary proceeding notice valid and he would proceed to hear and determine the disciplinary complaint.
  11. [17]
    On 12 June 2020, the appellant filed an application for a statutory order of review.

Legislative regime

  1. [18]
    Part 7 of the Act, headed “Discipline process for officers”, provides a system for guiding, correcting, rehabilitating and, if necessary, disciplining officers.  Its divisions identify available grounds for disciplinary action and provide processes for the start of, and determination of, disciplinary proceedings, including available disciplinary sanctions.
  2. [19]
    Relevantly, Part 7 contains the following provisions:

7.2 Application of part

This part applies in relation to a complaint about an officer (the subject officer) if—

  1. (a)
    the complaint is received by the commissioner or the CCC; and
  1. (b)
    the CCC has not assumed responsibility for investigating the complaint under the Crime and Corruption Act 2001, section 47 or 48.

Note—

See section 7.7 for when the complaint is received by the commissioner or the CCC.

7.3 Definitions for part

In this part—

professional development strategy means a requirement that the subject officer do 1 or more of the following things—

  1. (a)
    undertake mentoring for a stated period not longer than 6 months;
  1. (b)
    undertake closer supervision for a stated period not longer than 6 months;
  1. (c)
    comply with additional reporting obligations for a stated period not longer than 6 months;
  1. (d)
    complete internal training;
  1. (e)
    complete external training or professional development, at the expense of the service or the subject officer;
  1. (f)
    undertake counselling, whether provided within the service or externally, at the expense of the service or the subject officer;
  1. (g)
    receive guidance;
  1. (h)
    undertake a temporary reassignment of duties for a stated period not longer than 6 months;

Note—

See also section 7.5(1) in relation to a temporary reassignment of duties.

  1. (i)
    undertake or complete another program, development or strategy, at the expense of the service or the subject officer and with the subject officer’s agreement;
  1. (j)
    anything else prescribed by regulation.

7.5 Imposition of professional development strategies etc.

  1. (1)
    For the definition professional development strategy, paragraph (h), a temporary reassignment of duties may be imposed on the subject officer under this part only if—
  1. (a)
    the subject officer is not required to travel more than 40km by road from the officer’s place of residence to the location of the officer’s reassigned duties without the officer’s consent; and
  1. (b)
    during the reassignment, the officer’s salary, allowances and other entitlements under an industrial instrument are not less than the officer’s entitlements immediately before the reassignment.
  1. (2)
    Nothing in this part limits a senior officer—
  1. (a)
    imposing, in a reasonable way, professional development strategies on the subject officer in relation to a ground for disciplinary action; or
  1. (b)
    giving the subject officer guidance in relation to inappropriate acts or omissions of the subject officer in the performance of the subject officer’s duty.
  1. (3)
    Subsection (2) applies even if the period for starting a disciplinary proceeding against the subject officer based on the ground for disciplinary action has ended.

7.9 Implementation of professional development strategies by commissioner

  1. (1)
    This section applies when the complaint mentioned in section 7.2 is received by the commissioner, regardless of whether it was first recorded by the CCC.
  1. (2)
    The commissioner must consider whether to impose a professional development strategy on the subject officer.
  1. (3)
    The commissioner may impose a professional development strategy under this section—
  1. (a)
    to reduce the risk of recurrence of similar conduct; or
  1. (b)
    to improve the subject officer’s performance; or
  1. (c)
    for any other purpose.
  1. (4)
    The professional development strategy must be implemented, in a reasonable way, as soon as practicable after the ground for disciplinary action arises.

Note—

See also section 7.35(3) in relation to the professional development strategy being taken into account by a prescribed officer deciding the disciplinary sanction to be imposed on the subject officer.

  1. (5)
    In this section—

recorded see section 7.7.

7.10 Referral of complaint to prescribed officer

  1. (1)
    This section applies if—
  1. (a)
    the complaint mentioned in section 7.2 has been received by the commissioner; and
  1. (b)
    the commissioner has considered under section 7.9 whether to impose a professional development strategy.
  1. (2)
    The commissioner must decide whether to refer the complaint to a prescribed officer, having regard to the following matters—
  1. (a)
    any professional development strategy, or other management action, that has been implemented in relation to the subject officer;
  1. (b)
    whether implementation of any other professional development strategy would be sufficient to achieve the purposes mentioned in section 7.1(b);
  1. (c)
    the subject officer’s disciplinary history and service history;
  1. (d)
    the seriousness of the conduct to which the complaint relates;
  1. (e)
    whether it is necessary to take disciplinary action against the subject officer to achieve the purposes mentioned in section 7.1(b).

7.11 Requirements for starting disciplinary proceeding

  1. (1)
    This section applies if the commissioner has, under section 7.10, referred the complaint to a prescribed officer.
  1. (2)
    The prescribed officer may start a disciplinary proceeding against the subject officer if the prescribed officer reasonably believes there is a ground for disciplinary action against the subject officer.

7.25 How disciplinary proceeding is started

A prescribed officer may start a disciplinary proceeding under this division by giving the subject officer a notice (a disciplinary proceeding notice) stating—

  1. (a)
    particulars of the alleged ground for disciplinary action (the disciplinary charge); and
  1. (b)
    that the subject officer may, within a stated period of at least 28 days, give the prescribed officer a written submission and other materials to show why disciplinary action should not be taken in relation to the disciplinary charge.

Note—

See also the requirements in sections 7.11 and 7.12 for starting disciplinary proceedings under this division.

7.26 Subject officer’s right to make written submission

  1. (1)
    The subject officer may, within the required period, give the prescribed officer a written submission and other materials to show why disciplinary action should not be taken in relation to the disciplinary charge.
  1. (2)
    The prescribed officer may, by agreement with the subject officer, extend the period stated in the disciplinary process notice under section 7.25(b).
  1. (3)
    In this section—

required period means—

  1. (a)
    the period mentioned in the disciplinary proceeding notice under section 7.25; or
  1. (b)
    if the period mentioned in paragraph (a) has been extended under subsection (2)—the extended period.

7.27 Decision about whether disciplinary charge is proved

  1. (1)
    This section applies if—
  1. (a)
    either—
  1. (i)
    the required period under section 7.26 has ended; or
  1. (ii)
    a written submission has been given to the prescribed officer by the subject officer under section 7.26(1); and
  1. (b)
    the prescribed officer has considered any written submission and other materials given to the prescribed officer by the subject officer under section 7.26(1).
  1. (2)
    The prescribed officer must decide whether the disciplinary charge, or another ground for disciplinary action, is proved.
  1. (3)
    Subsection (4) applies if—
  1. (a)
    the prescribed officer is not reasonably satisfied the disciplinary charge, or another ground for disciplinary action, is proved; or
  1. (b)
    the prescribed officer—
  1. (i)
    is reasonably satisfied the disciplinary charge, or another ground for disciplinary action, is proved; but
  1. (ii)
    does not propose to impose a disciplinary sanction or professional development strategy on the subject officer.
  1. (4)
    Within 14 days after making the decision, the prescribed officer must—
  1. (a)
    for a decision mentioned in subsection (3)(a)—
  1. (i)
    give the subject officer written notice of the decision; and
  1. (ii)
    give the CCC a QCAT information notice for the decision; or
  1. (b)
    for a decision mentioned in subsection (3)(b)—give the subject officer and the CCC a QCAT information notice for the decision.

Notes—

1 If the prescribed officer is satisfied the disciplinary charge or another ground for disciplinary action is proved, see also section 7.31 for the requirement to give a QCAT information notice for—

 the decision that the disciplinary charge, or another ground for disciplinary action, is proved

 the decision to impose, or not to impose, a disciplinary sanction or professional development strategy.

2 See the Crime and Corruption Act 2001, chapter 5, part 3 in relation to review by QCAT of the decisions mentioned in subsection (3).

7.28 Proposed sanction notice

  1. (1)
    This section applies if, under section 7.27, the prescribed officer is reasonably satisfied the disciplinary charge, or another ground for disciplinary action, is proved.
  1. (2)
    The prescribed officer may give the subject officer a notice (a proposed sanction notice) stating each of the following matters—
  1. (a)
    that the prescribed officer has decided the disciplinary charge, or another ground for disciplinary action, is proved;
  1. (b)
    the reasons for the decision;
  1. (c)
    the disciplinary sanction or professional development strategy (the proposed sanction or strategy) the prescribed officer proposes to impose on the subject officer;
  1. (d)
    that the subject officer may give the prescribed officer a written submission and other materials, within a stated period of at least 21 days, to show why the proposed sanction or strategy should not be imposed.

7.29 Subject officer’s right to make written submission

  1. (1)
    The subject officer may, within the required period, give the prescribed officer a written submission and other material to show why the proposed sanction or strategy should not be imposed.
  1. (2)
    The prescribed officer may, by agreement with the subject officer, extend the period stated in the proposed sanction notice under section 7.28(2)(d).
  1. (3)
    In this section—

required period means—

  1. (a)
    the period stated in the proposed sanction notice under section 7.28(2)(d); or
  1. (b)
    if the period mentioned in paragraph (a) has been extended under subsection (2)—the extended period.

7.30 Decision about imposition of disciplinary sanction or professional development strategy

  1. (1)
    This section applies if—
  1. (a)
    the prescribed officer has given the subject officer a proposed sanction notice; and
  1. (b)
    either
  1. (i)
    the required period under section 7.29 has ended; or
  1. (ii)
    the subject officer has given the prescribed officer a written submission under section 7.29(1); and
  1. (c)
    the prescribed officer has considered any written submission and other materials given to the prescribed officer by the subject officer under section 7.29(1).
  1. (2)
    The prescribed officer must decide—
  1. (a)
    to impose on the subject officer—
  1. (i)
    the proposed sanction or strategy; or
  1. (ii)
    any other disciplinary sanction or professional development strategy that is no more detrimental to the subject officer than the proposed sanction or strategy; or
  1. (b)
    not to impose a disciplinary sanction or professional development strategy on the subject officer.
  1. (3)
    A decision under subsection (2)(a) takes effect on the day the subject officer is given a QCAT information notice for the decision under section 7.31.
  1. (4)
    This section applies subject to division 5.

7.32 Principles for conducting disciplinary proceeding

In conducting the disciplinary proceeding, the prescribed officer—

  1. (a)
    must observe the rules of natural justice; and
  1. (b)
    must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the matters before the prescribed officer; and
  1. (c)
    is not bound by the rules of evidence; and
  1. (d)
    may get information on a matter in a way the prescribed officer considers appropriate; and
  1. (e)
    may decide the procedures to be followed for the proceeding, subject to any guidelines made under section 7.44.

7.33 Application of division

This division applies for imposing a disciplinary sanction or professional development strategy on the subject officer under division 3 or 4.

7.35 Power of prescribed officer to impose disciplinary sanction

  1. (3)
    In deciding the disciplinary sanction to be imposed, the prescribed officer must have regard to the following matters—
  1. (a)
    any considerations provided for in a guideline made under section 7.44;
  1. (b)
    the subject officer’s disciplinary history and service history;
  1. (c)
    any professional development strategies imposed on, or completed by, the subject officer in relation to the ground for disciplinary action.

…”

Appellant’s submissions

  1. [20]
    The appellant submits that a decision under s 7.9 operates as a condition precedent to the commencement of a disciplinary proceeding.  The first respondent’s power to refer a complaint to a prescribed officer under s 7.10 only arises if the first respondent has considered, under s 7.9, whether to impose a professional development strategy.
  2. [21]
    The appellant submits a decision whether to impose such a strategy under s 7.9 also has significance, in the event that a disciplinary charge is found proven under s 7.27 of the Act.  In deciding what disciplinary sanction to impose in such circumstances, the prescribed officer must have regard to any development strategies imposed on or completed by the subject officer in relation to the ground for disciplinary action.[1]
  3. [22]
    The appellant submits that, as a decision under s 7.9 operates as a condition precedent to the commencement of a discipline proceeding and has significance in the event that a disciplinary charge has been found proven against the officer, the rules of natural justice apply to the decision whether to impose a professional development strategy under s 7.9 of the Act.  Nothing in the Act, either expressly or by implication, excludes the rules of natural justice from application to that decision.

Respondents’ submissions

  1. [23]
    The respondent submits that a referral decision under s 7.10 of the Act, after compliance with s 7.9, is a “preliminary” step in a multi-stage process.  Such a referral does not engage the right to be afforded procedural fairness.  That right only arises as part of any disciplinary proceeding commenced in accordance with the Act.
  2. [24]
    The respondents submit that this conclusion flows from the fact that a decision not to impose a professional development strategy does not directly affect the appellant’s rights or interests.  Further, whilst the Act does not expressly exclude the rules of natural justice in respect of decisions made under s 7.9, a reading of the Act as a whole supports a conclusion that the requirement for procedural fairness arises as part of any commenced disciplinary proceedings, not in the undertaking of preliminary steps in the determination of whether to commence disciplinary proceedings.

Consideration

  1. [25]
    Whether an exercise of power is conditioned upon the observance of the rules of natural justice is a question of statutory construction.  The answer to that question, which requires a consideration of the relevant statutory framework,[2] is a universal answer.  If the rules apply, they govern “every exercise of the power including every refusal to exercise it”.[3]
  2. [26]
    There are two distinct but closely related questions in relation to whether the exercise of a statutory power is conditioned upon the observance of the rules of natural justice.  As Brennan J (as his Honour then was) explained in Kioa:[4]

“… [T]he first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances …”

  1. [27]
    A consideration of the provisions of Part 7 as a whole supports a conclusion that the disciplinary process provided for in that Part is a multi-staged process.
  2. [28]
    The first stage requires a determination by the Commissioner whether to impose a professional development strategy in respect of the officer the subject of the complaint.
  3. [29]
    The second stage requires, having considered whether to impose a professional development strategy, a determination whether to refer the complaint to a prescribed officer.
  4. [30]
    The third stage arises in the event the Commissioner has referred the complaint to a prescribed officer.  The prescribed officer may start a disciplinary proceeding if that prescribed officer reasonably believes there is a ground for disciplinary action against the subject officer.
  5. [31]
    At that stage, the prescribed officer may, in certain circumstances, make an offer pursuant to the abbreviated disciplinary proceedings set out in Division 3, or start a disciplinary proceeding pursuant to the provisions in Division 4.  In either case, the Act expressly provides that the prescribed officer must give the subject officer relevant notice and afford that officer the opportunity to make written submissions in relation thereto.
  6. [32]
    The final stage arises when the prescribed officer must decide whether the disciplinary charge or another ground for disciplinary action is proved and determine a sanction.  Again, the Act expressly provides that the subject officer is first to be afforded a right to make submissions.
  7. [33]
    A consideration of those various stages supports a conclusion that, whilst the subject officer is expressly required to be afforded natural justice at the third and final stages of the disciplinary process, there is no express obligation to do so at the first and second stages, namely, the making of a decision in relation to the imposition of a professional development strategy in respect of the subject officer, and the decision whether to refer the complaint to a prescribed officer.
  8. [34]
    Further, there is no implied obligation to do so at those first and second stages.  Such a conclusion is consistent with the statutory framework of the Act, and its purpose.
  9. [35]
    The Act specifically provides for the affording of natural justice, once a disciplinary proceeding has been instituted against the subject officer.  The absence of such a requirement in respect to the decision whether to impose a professional development strategy is entirely consistent with that decision being a first step in a multi-stage process,[5] in respect of which it is not necessary to afford natural justice.  The decision in respect of that early stage does not determine whether to commence a disciplinary proceeding.
  10. [36]
    A factor relied upon by the appellant to support a conclusion that there was a requirement to afford natural justice in respect of that decision was the fact that the imposition of a professional development strategy has consequences for the subject officer, which can include financial obligations.
  11. [37]
    While an obligation to afford procedural fairness can arise in circumstances where the exercise of a statutory power gives rise to adverse financial or other obligations, a consideration of the provisions of the Act as a whole, and in particular the purposes of Part 7, support a conclusion that that consequence does not warrant implying an obligation to afford procedural fairness at that stage.  The imposition of a professional development strategy is relevant to the good order of the Queensland Police Service.  The Commissioner has overriding responsibility for the good order of the police service.  Such a decision is properly to be determined without the decision-maker having to first afford natural justice to the subject officer.

Conclusion

  1. [38]
    There was no error in the primary Judge’s conclusion that the application for statutory order of review should be dismissed as there was no obligation to afford procedural fairness at the stage of determining whether to impose a professional development strategy on the subject officer the subject of the complaint.

Orders

  1. [39]
    I would order:
  1. (1)
    The appeal be dismissed.
  1. (2)
    The appellant pay the respondents’ costs of the appeal.

Footnotes

[1]Act, s 7.35(3)(c).

[2]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160-161 [26].

[3]Kioa v West (1985) 159 CLR 550 at 611; Saraceni v Australian Securities and Investments Commission (2013) 211 FCR 298 at [73]-[74].

[4]Kioa v West (1985) 159 CLR 550 at 612.

[5]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 99-102 [146].

Close

Editorial Notes

  • Published Case Name:

    Norvill v Commissioner of Queensland Police Service & Anor

  • Shortened Case Name:

    Norvill v Commissioner of Queensland Police Service

  • MNC:

    [2022] QCA 104

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Boddice J

  • Date:

    10 Jun 2022

  • Selected for Reporting:

    Editor's Note

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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