Carless v Johnson[2023] QCA 29

[2023] QCA 29

DALTON JA: These two appeals were heard together. They concern the same point, namely, the interpretation of section 7.10(2) of the Police Service Administration Act 1990 (Qld) (PSA Act).

Part 7 of the PSA Act is entitled Discipline Process for Officers. According to section 7.10 of the PSA Act, the main purposes of this part of the Act are to provide a system to guide, correct, rehabilitate and, if necessary, discipline police officers and to ensure that appropriate standards of discipline are maintained within the service in order to protect the public, uphold ethical standards and promote and maintain public confidence and officers’ confidence in the service. Part7, division 2 of the PSA Act is headed Preliminary Provisions for Starting Disciplinary Proceedings. Section 7.9 provides that when the Commissioner receives a complaint against an officer, the Commissioner must consider whether to impose a professional development strategy on the subject officer. Section 7.10(1) provides that if a complaint has been received by the Commissioner and the Commissioner has considered whether or not to impose aprofessional development strategy:

3. “(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).”

Detective Senior Sergeant Cousins and Sergeant Johnson were the subject of complaints to the Commissioner. In each case, a delegate of the Commissioner made a decision under section 7.10(2). In the case of Cousins, the decision read as follows:

3. “...

3. 3.
   I have determined this matter should be referred for the consideration of a prescribed officer.

3. 4.
   I have determined the appropriate level for prescribed officer concerning this matter is a referral to the Office of State Discipline.

3. ...”

In the case of Johnson, the decision was:

“I have determined this matter should be referred for the consideration of a prescribed officer of the rank of chief superintendent at the Office of State Discipline.”

The referral in Cousins was challenged in the Queensland Industrial Relations Commission and the referral in Johnson was challenged in this Court on a judicial review. Both decisions below were against the Queensland Police Service. Both held that referrals were not valid pursuant to s 7.10(2) of the PSA Act because they did not refer the complaint to a particular police officer.

In my view, these appeals must both be dismissed. The point is simply one of statutory construction and the starting point must be the text of the statute – SZTAL v Minister For Immigration and Border Protection (2017) 262 CLR 362, [14]. The natural meaning of the language at section 7.10(2) is that the Commissioner, or the Commissioner’s delegate, must make a referral to a particular officer who fits within the statutory definition of “prescribed officer”. It is that particular officer who is nominated in the referral decision who has the power to start a disciplinary proceeding – see section 7.11:

3. “7.11
   Requirements for starting disciplinary proceeding

3. (1)
   This section applies if the commissioner has, under section 7.10, referred the complaint to a prescribed officer.

3. (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.” (my emphasis).

Looking at the definition of “prescribed officer” found at section 7.3 of the PSA Act strengthens this conclusion. The term is defined to mean, “A police officer mentioned in section 2.2(2)(a), (b), or (c) who holds a rank above the rank of the subject officer.” When section 2.2(2) is consulted, that means, a police officer who is: (a) the Commissioner; (b) an executive police officer; or (c) a commissioned police officer who holds a higher rank than the officer against whom a complaint has been made.

It was argued on behalf of the Queensland Police Service that the only job of the Commissioner or her delegate under section 7.10(2) was to decide whether or not the complaint needed to be referred so that a disciplinary proceeding could be started. I disagree. The subsection, when read together with section 7.11, requires a decision whether or not to refer the complaint and adecision as to who will be empowered to start the disciplinary proceeding. That is, it requires the Commissioner or her delegate to choose an officer who is a prescribed officer and refer the complaint to that person. The person chosen is then invested with the statutory power of starting adisciplinary proceeding – see section 7.11(1).

This interpretation is one which rests on the natural and, with respect, plain meaning of the words in sections 7.10 and 7.11 of the PSA Act. I pay particular attention to the use of the indefinite article “a” at section 7.10(2) and section 7.11(1) and contrast the definite article “the” in section 7.11(2). I also pay attention to the phrase “to refer ... to” used in section 7.10(2). That is in the active voice and requires one person to make a referral to another person. A(hypothetical) passive voice “make a referral of”, is not used.

It appears from the material that the current practice of the Queensland Police Service is that the Commissioner or her delegate make referrals of the type made in these two cases and then officers within the Office of State Discipline decide which officer will start the disciplinary proceeding. The Act does not give the Office of State Discipline, or the officers working in that office, power to decide which of them will start the disciplinary proceeding. The Act gives power to the Commissioner or her delegate to do that – s 7.10(2).

The rank of the prescribed officer to whom a complaint is referred pursuant to section7.10(2) will determine the range of sanctions available in any subsequent disciplinary proceeding. Essentially, the more senior the prescribed officer, the more severe are the sanctions which might be imposed. No doubt the Commissioner or her delegate will have regard to that matter in determining to whom to refer the complaint when making a decision pursuant to section 7.10(2).

The appellants contend that section 7.10(2) requires the Commissioner or her delegate to describe the officer to whom a complaint is referred by name and rank. It seems to me that that would be a desirable course having regard to the need to properly identify the prescribed officer. However, if a prescribed officer was to be identified only by their name, their rank is ascertainable and it could be ascertained. For example, whether or not they were of a more senior rank to the subject of the disciplinary complaint. That is, I cannot see that a referral to aprescribed officer which only used the officer’s name would be invalid. Likewise, if there were only one officer holding a particular position and the referral made pursuant to section 7.10(2) was made to the officer, not in terms of their name or their rank, but in terms of that position, I cannot see that the referral would be invalid, provided that the officer to whom the referral was made was identified by a precise and certain description, “the Commissioner of the Queensland Police Service”, for example.

Counsel for the Queensland Police Service relied upon the fact that the rank of the prescribed officer was not one of the matters listed in section 7.10(2). I do not find this persuasive. The matters listed in section 7.10(2) are all matters which will bear upon the severity of the sanction which might ultimately be imposed and are, thus, relevant to the decision of the Commissioner or her delegate in choosing an appropriate prescribed officer to whom the complaint is referred.

I would order that both appeals are dismissed, with costs.

BODDICE AJA: I agree that both appeals should be dismissed, with costs.

Subject to one caveat, I agree that the natural meaning of the language at section 7.10(2) of the Act is that the Commissioner or the Commissioner’s delegate, must make a referral to aparticular officer who fits within the statutory definition of a “prescribed officer”.

The caveat is that the requirement to make a referral to a particular officer may be satisfied by adetermination that the complaint be referred for consideration to a prescribed officer of aspecified rank, for example, the rank of Chief Superintendent.

In my view, such a referral satisfies the requirement of “a” prescribed officer in section 7.10(2). That conclusion sits with the intent of the legislation that the rank of the prescribed officer, to whom a complaint is referred, determine the range of sanctions available in any consequent disciplinary proceeding.

Upon the Commissioner, or the Commissioner’s delegate, deciding to refer the complaint to such a prescribed officer, only an officer of that rank may start a disciplinary proceeding, if the officer of that rank reasonably believes there is a ground for disciplinary action against the subject officer.

In that event, the officer of that rank, upon starting the disciplinary proceeding, becomes “the” prescribed officer under section 7.11 of the Act. It is that particular officer who must complete the process, as that officer is “the prescribed officer” where that term is used in section 7.14 and following.

That conclusion is consistent with the use of “a” prescribed officer where it first appears in section 7.25, rather than the use of the term “the prescribed officer”.

WILSON J: I agree with the reasons as set out by Dalton JA and both appeals should be dismissed, with costs.