O'Brien v Assistant Commissioner Paul Taylor
[2018] QCAT 373
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- Unreported Judgment
- O'Brien v Assistant Commissioner Paul Taylor[2018] QCAT 373
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O'Brien v Assistant Commissioner Paul Taylor[2018] QCAT 373
O'Brien v Assistant Commissioner Paul Taylor[2018] QCAT 373
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | O'Brien v Assistant Commissioner Paul Taylor & Anor [2018] QCAT 373 |
PARTIES: | Katie O'Brien (applicant) |
| v |
| Assistant Commissioner Paul Taylor (first respondent) CRIME AND CORRUPTION COMMISSION (second respondent) |
APPLICATION NO/S: | OCR0185-18 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | Date of orders 24 September 2018 Reasons delivered 5 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | POLICE – EXTERNAL OVERSIGHT – application for review – police discipline – application to join Crime and Corruption Commission – where earlier direction allowing joinder – where question of whether active or passive party – where fresh application seeking active participation – whether status of parties determined by the Tribunal Crime and Corruption Act 2001 (Qld), s 15, s 47, s 48, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), s 32(2), s 40(1)(d), s 41, s 42(1), s 47(3), s 48(4), s 52(6), s 53(4), s 58(2), s 59(3), s 61(4), s 62(6), s 63(5), s 66(3), s 73(3), s 90(4), s 95, s 97(2), s 99(3), s 111(3)(b), s 118(3), s 122(2), s 133(2), s 135(2), s 138(1), s 142(1) Aldrich v Ross [2001] 2 Qd R 235 Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314 HD & BHW v Department of Communities, Child Safety and Disability Services [2018] QCAT 18 Lee v Crime and Corruption Commission & Anor (2016) 259 A Crim R 96 |
REPRESENTATION: |
|
Applicant: | C Gnech, Queensland Police Union Legal Group |
First Respondent: Second Respondent: | Queensland Police Service JL Gorry, Crime and Corruption Commission |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]On 4 April 2018, the Applicant filed an application to review a disciplinary sanction imposed by the First Respondent. On 25 May 2018, the Second Respondent made application to be joined as a party to the proceeding. In that application, it was stated that the Crime and Corruption Commission (the ‘CCC’) “seeks to be joined as a passive party to the review of the sanction”. It was added:
In relation to the review, it is submitted that the interests of the Respondent and the CCC do not materially diverge such as to warrant the CCC playing an active role in the review of the sanction. However, consistently with the position taken in Wilson, the CCC wishes to preserve its appeal rights should the Applicant succeed in overturning the decision regarding sanction.[1]
- [2]Neither the Applicant nor the First Respondent filed submissions in relation to that application. On 12 June 2018, the Tribunal made a direction joining the CCC as a respondent to the review proceedings, without any qualifications or conditions.
- [3]On 12 July 2018, the Second Respondent made application to change its status from a ‘passive’ to an ‘active’ respondent, for the reason that it was no longer confident that the positions of the First and Second Respondents were identical. The Applicant filed submissions opposing the application. No submissions were filed by the First Respondent.
- [4]On 24 September a decision was made by the Tribunal in the following terms:
- Direction 2 made by the Tribunal on 12 June 2018 joining the Crime and Corruption Commission as a respondent to the review proceedings is confirmed.
- For purposes of certainty, by this decision no limitation is placed on the Crime and Corruption Commission in relation to the exercise of rights conferred on a party to the proceedings under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- [5]The Applicant has requested reasons for that decision. The reasons are set out below.
Discussion
- [6]By s 40(1)(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’), parties to the Tribunal’s review jurisdiction include a party joined under s 42 of the QCAT Act. Section 42(1) provides that the Tribunal may make an order joining a person as a party to a proceeding if the Tribunal considers that:
- (a)the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
- (b)the person’s interests may be affected by the proceeding; or
- (c)for another reason, it is desirable that the person be joined as a party to the proceeding.
- [7]As is noted above, On 12 June 2018 the Tribunal made a direction joining the CCC as a respondent to the review proceedings, without any qualifications or conditions as to the joinder.
- [8]Indeed, there is nothing in the QCAT Act expressly allowing for any directed limitations to the status of a party to the proceedings and, by the terms of the QCAT Act, it is evident that no qualifications or conditions in terms or rendering a party either ‘active’ or ‘passive’ can be mandated. Significantly, the provision allowing the Tribunal to impose conditions when giving leave to a person to intervene in proceedings under s 41 of the QCAT Act is not replicated in s 42 of the QCAT Act.
- [9]Also, subject to specified qualifications, s 95 of the QCAT Act provides that the Tribunal ‘must’ allow a party to a proceeding a reasonable opportunity to call or give evidence, examine witnesses and make submissions to the Tribunal. That runs counter to any notion that the Tribunal can mandate that a party have only a passive role. There are numerous other provisions allowing parties to the proceedings to make specified applications or to take specified steps or which place obligations on parties. Any demarcation between active and passive participation would beg the question of which of those provisions apply to a ‘passive’ party.[2]
- [10]While in the Court of Appeal decision in Crime and Misconduct Commission v Wilson & Anor,[3] referred to below, it was accepted that the CCC might adopt either an active or passive role in review proceedings, it was not stated that the Tribunal could mandate the role adopted by the CCC.
- [11]In my view, subject to compliance with the requirements of applicable legislation and principles governing the conduct of proceedings, including the obligation of state parties to act as model litigants, the manner in which a party participates in the review proceedings is a matter for that party.[4] It follows that the joinder direction made by the Tribunal on 12 June 2018 enables the Second Respondent to fully participate as a party to the present proceedings.
- [12]If, on the other hand, the present application for joinder were treated as a fresh application consequent upon withdrawal of the earlier application, and allowing that joinder would permit active participation in the proceedings, I would grant that application for the following reasons.
- [13]While there is no automatic right on the part of the CCC to be joined as a party, it does have a special role to play in monitoring the sort of conduct that is the subject of these proceedings. As appears from s 47 of the Crime and Corruption Act 2001 (Qld) (the ‘CCA’), the CCC has a monitoring role in relation to police misconduct. Section 47(1) of the CCA provides:
- The commission may, having regard to the principles stated in section 34—
- (a)issue advisory guidelines for the conduct of investigations by the commissioner of police into police misconduct; or
- (b)review or audit the way the commissioner of police has dealt with police misconduct, in relation to either a particular complaint or a class of complaint; or
- (c)assume responsibility for and complete an investigation by the commissioner of police into police misconduct.
Similar powers are set out in s 48, giving the CCC a monitoring role in relation to ‘corrupt conduct’.[5]
- [14]Also, by s 33(b) of the CCA, the CCC has the function of ensuring that ‘a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in section 34’. Section 34 of the CCA includes, at (a), the principle that ‘the commission and units of public administration should work cooperatively to deal with corruption’ and, at (d), the principle that ‘the commission has an overriding responsibility to promote public confidence – in the integrity of units of public administration’. A further principle appears at s 34(c): ‘subject to the cooperation and public interest principles and the capacity of the unit of public administration, action to prevent and deal with corruption in a unit of public administration should generally happen within the unit’.
- [15]In Crime and Misconduct Commission v Wilson & Anor,[6] Muir JA, with whom Gotterson JA and Daubney J agreed, referred to the role of the CCC and stated that that role “amply provides a sufficient interest for the purposes of s 42 of the QCAT Act”. His Honour then referred with evident approval to the following observation of the Tribunal Member at first instance:[7]
The police disciplinary system is largely administered within the police force itself, and the [CCC] is the independent watchdog to prevent any perception of favouritism or laxness within the police department in the prosecution of errant police.
- [16]The Court of Appeal in Wilson held that the right of the CCC to, itself, initiate review proceedings pursuant to s 219G of the CCA did not exclude the CCC from making application to be joined as a party pursuant to s 42 of the QCAT Act.
- [17]Contrary to the submissions of the applicant, the Court did not conclude that in relation to the latter option the CCC would have a non-active role. Rather, the Court rejected a submission that the CCC’s ‘interests may be affected’ within the meaning of s 42 of the QCAT Act if it sought joinder for the purpose of active participation in the proceedings, but not where it intended to take a passive role for the purpose of preserving its appeal rights. Muir JA stated:[8]
Whether the Commission was to be an active or passive participant in the proceedings before the Tribunal until its appeal rights were engaged concerned the manner in which the Commission intended to protect or advance its interests, not the existence of those interests. The Commission’s interests remained the same irrespective of the role it intended to play in the proceedings.
- [18]The Applicant also maintains that allowing the CCC to actively participate in the review process compromises the objective of early resolution of disputes as well as any agreement reached by the Applicant and the First Respondent at a compulsory conference and serves as a disincentive to engage in compulsory conferencing. The submission fails to recognise that the purpose of review proceedings is not to enable the parties to determine the outcome as between themselves, but rather to enable the Tribunal to produce the correct and preferable decision. Where the matter is one of public interest it is arguable that that outcome is facilitated by allowing external input.
- [19]As noted by Thomas JA in Aldrich v Ross,[9] the “protection of the public, the maintenance of public confidence in the Service and the maintenance of integrity in the performance of police duties are the primary purpose” of misconduct and discipline proceedings within the police force.
- [20]In its submissions, the CCC states that it did not initiate an application to review under s 219G within the prescribed 14 day period because it was of the view that the sanction imposed was the correct and preferable decision. However, given the apparent change of positon of the First Respondent, the avenue now available to the CCC is to seek to be joined so that it can act as a contradictor in the review proceedings.
- [21]In Lee v Crime and Corruption Commission & Anor,[10] with reference to the role of the CCC under s 47 and 48 of the CCA, Philip McMurdo JA, with whom Douglas and Bond JJ agreed, observed: “It is inherent in the role of monitoring that, on occasion, the CCC will disagree with the Commissioner in his dealings with a complaint”.
- [22]Where that divergence might arise, it is consistent with the responsibility and monitoring role conferred on the CCC that it seeks to be joined as a party to police disciplinary review proceedings and to actively participate in those proceedings. In the circumstances of the present case, access to external perspectives will assist the Tribunal in producing the correct and preferable decision.
- [23]In the request for reasons, the Applicant also asked for reasons as to why the application to join was heard on the papers rather than by oral hearing. It is noted that in its directions of 16 July 2018, the Tribunal directed that the decision would be made on the papers and without an oral hearing. In her written submissions, the Applicant requested an oral hearing. By s 32(2) of the QCAT Act, the Tribunal may conduct proceedings on the papers and without an oral hearing. In the present case, the Applicant is legally represented and comprehensive written submissions were filed. In those circumstances and in light of the conclusions drawn above, in my view a hearing on the papers is both appropriate and consistent with the object set out in
s 3(b) of the QCAT Act.
Footnotes
[1] The reference to Wilson is a reference to the decision in Crime and Misconduct Commission v Wilson & Anor [2012] QCA 314.
[2] Those provisions include: s 58(2) applications for interim orders; s 61(4) application for relief from procedural requirements; s 62(6) applications for directions; s 63(5) and s 97(2) applications to produce documents or to require the attendance of a witness; s 66(3) applications for a non-publication order; s 68 and 76 obligation to attend a compulsory conference or mediation upon direction; s 73(3) objections to the person constituting the Tribunal for the proceeding; s 90(4) application for a private hearing; s 99(3) applications in relation to a special witness giving evidence; s 118(3) referring questions of law to the Court of Appeal; s 122(2) requests for written reasons; s 133(2) applications for renewal of a final decision; s 135(2) applications to correct a mistake; s 138(1) applications to reopen; and s 142(1) right of appeal.
[3] [2012] QCA 314 [36].
[4] See also the observations of Member Gardiner in HD & BHW v Department of Communities, Child Safety and Disability Services [2018] QCAT 18 [5].
[5] As to the term ‘corrupt conduct’, see s 15 CCA. The term ‘corruption’, as defined in Schedule 2 of the CCA, means corrupt conduct or police misconduct.
[6] [201] QCA 314 [32].
[7] [2012] QCA 314 [34].
[8] [2012] QCA 314 [36].
[9] [2001] 2 Qd R 235, 257 [42].
[10] (2016) 259 A Crim R 96, 112 [67].