Officer OJM v Deputy Commissioner Gollschewski
[2018] QCAT 89
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- Unreported Judgment
- Officer OJM v Deputy Commissioner Gollschewski[2018] QCAT 89
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Officer OJM v Deputy Commissioner Gollschewski[2018] QCAT 89
Officer OJM v Deputy Commissioner Gollschewski[2018] QCAT 89
CITATION: | Officer OJM v Deputy Commissioner Stephen Gollschewski [2018] QCAT 89 |
PARTIES: | Officer OJM (Applicant) v Deputy Commissioner Stephen Gollschewski (Respondent) |
APPLICATION NUMBER: | OCR005-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 19 May 2017 and on the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
DELIVERED ON: | 8 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – ONUS OF PROOF – where review of decision on the substantiation of disciplinary charges – whether officer or Deputy Commissioner should file written submissions first in relation to the substantive review – where onus to prove disciplinary charges WHETHER PREVIOUS ACTION WAS DISCIPLINARY ACTION – WHETHER BAR TO SUBSEQUENT RECONSIDERATION OF ALLEGATIONS – where in 2004, allegations made that officer had physically attacked his child on stated date – where investigation undertaken – where officer notified in 2005 by Assistant Commissioner that allegation substantiated and no further action to be taken – where substantiated allegation and no further action entered in officer’s service record – whether disciplinary action was taken in 2005- whether the allegations can now be reconsidered in disciplinary action Crime and Corruption Act 2001 (Qld), s 219I, s 219J Police Service Administration Act 1990 (Qld), s 7.4(2A) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 Disley v Queensland Police Service [2010] QCAT 530 Legal Practitioner “M” v Counsel for the Law Society of the Australia Capital Territory [2015] ACTSC 312 Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348 Secretary, Department of Social Security v Willee (1990) 96 ALR 211 |
APPEARANCES: |
|
APPLICANT: | Represented by M Black of Counsel, instructed by Gilshenan & Luton |
RESPONDENT: | Represented by J W Merrell of Counsel, instructed by Queensland Police Service Legal Unit |
REASONS FOR DECISION
- [1]OJM was a police constable when Deputy Commissioner Stephen Gollschewski decided disciplinary charges against him in respect of five matters in early 2016. OJM applied to the Tribunal for review of the decision on substantiation of the charges and, subsequently, the decision on sanction. Those proceedings have not yet been listed for final hearing.
- [2]In the meantime, OJM filed an application for miscellaneous matters seeking directions and orders to the following effect:
- A declaration that Deputy Commissioner Gollschewksi bears the onus of proof, and that he must file and serve his written submissions in the review before OJM is required to do so; and
- A declaration that there is no power for Matter 2 to be considered.
- [3]The application for miscellaneous matters came to me for oral hearing on 19 May 2017. I adjourned the matter part-heard for the filing by the Deputy Commissioner of supplementary documents pursuant to s 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), together with directions for the filing of further submissions by the parties after those additional s 21(2) documents had been filed.
- [4]As it transpired, it would be some time before the proceeding was ready for further hearing (there being allegations made that further additional relevant documents existed after the Deputy Commissioner’s further documents had been filed, including a memorandum prepared by Inspector Ready and the source documents). There was a further regrettable delay before it could again be listed before me.
Who should file their submissions first?
- [5]This aspect of the application had narrowed by the time of the oral hearing. The Deputy Commissioner conceded that the Tribunal may make a direction requiring the filing of his written submissions before OJM files his submissions, if it considered that course appropriate. In light of that concession, OJM no longer seeks a declaration to the effect that the Deputy Commissioner bears the onus of proof.
- [6]In seeking a direction that the Deputy Commissioner file his submissions first, OJM relied upon the decision of the Tribunal in Officer JGB v Deputy Commissioner Gollschewski and Anor (Officer JGB),[1] at paragraph [74] in which the Tribunal held that ‘in police disciplinary review proceedings, the decision-maker bears the onus of proof’ in relation to substantiation of the charges. He submits that this is consistent with a the proper construction of the Police Service Administration Act 1990 (Qld) (PSA Act). The PSA Act provides for disciplinary action being taken when a prescribed officer ‘decides an allegation of misconduct brought against the officer’.[2] Further, the Crime and Corruption Act 2001 (Qld) (CCC Act) similarly provides for the procedure on review and powers of the Tribunal upon finding that conduct is proven against an officer or former officer.[3]
- [7]Further, OJM refers to authorities in analogous jurisdictional areas where the party alleging misconduct was held to bear the onus of proof, as referred to in Officer JGB.[4] (In particular Secretary, Department of Social Security v Willee (1990) 96 ALR 211 and Legal Practitioner “M” v Counsel for the Law Society of the Australia Capital Territory [2015] ACTSC 312.) Further, reliance is placed on Disley v Queensland Police Service,[5] where the Tribunal ordered that the Queensland Police Service (QPS) decision-maker file and serve its written submissions before the officer concerned, having regard to the disciplinary nature of the proceeding, notwithstanding that the proceeding was to be determined in the Tribunal’s review, rather than its original, jurisdiction.[6]
- [8]In the particular circumstances, OJM submits that the serious nature of the charges (which ultimately resulted in a sanction of dismissal), and the relatively general nature of the Deputy Commissioner’s reasons for decision, which speak of referring to the evidence or material, rather than specifying the particular evidence accepted or findings made, is also relevant. It is relevant to observe that there are seven ring binder folders of documents amounting to almost 3000 pages of material contained in the s 21(2) documents.
- [9]The Deputy Commissioner argues that OJM knows the case against him, and has made extensive submissions to him about it. In particular, he says that the review application sets out alleged errors made in the decision. Accordingly, he submits that, as has most often been the practice in the past, the officer (or former officer) should make his/her written submissions before the decision-maker is required to do so. Further, he submits that it is relevant that OJM has the documents provided pursuant to s 21(1) of the QCAT Act that are relevant and were relied upon by the Deputy Commissioner to make the disciplinary findings.
- [10]In all of the circumstances, the Deputy Commissioner argues that OJM, as the party bringing the proceedings, should file and serve his submissions first, and that the Tribunal will be better assisted by OJM specifying why, having regard to the reasons and disciplinary findings, he submits that the correct and preferable decision was not made by the Deputy Commissioner. The Deputy Commissioner suggests this may result in the resolution of some matters before hearing. That said, he observes that it may be different if the proceeding was not brought in the review jurisdiction of the Tribunal, but rather was a disciplinary proceeding in the Tribunal’s original jurisdiction.
- [11]Here, the reasons for decision given by the Deputy Commissioner in the substantiation decision are general in nature, with limited references to the particular evidence relied upon in making the decision, I am not satisfied that OJM does properly know the case said to be substantiated against him.
- [12]Broadly, having regard to the onus of proof, which rests with the person bringing the charges (for the reasons I outlined in Officer JGB; the provisions of s 7.4 of the PSA Act referring to charges being ‘brought against’ an officer; and the provisions in CCC Act providing for the Tribunal’s powers once satisfied that relevant conduct has been ‘proved against’ an officer[7]), it seems to me, that it is appropriate that the Deputy Commissioner, who brought the disciplinary charges against OJM, file his submissions first.
- [13]As OJM argued, the order in which submissions are filed has infrequently been agitated in police disciplinary matters. That said, procedure in a particular matter is always within the discretion of the Tribunal.[8] It may be that, in other circumstances, an officer facing disciplinary charges raises only limited issues arising from particular aspects of the statement of reasons provided by the decision-maker. In such instances, the Tribunal may, in its discretion, decide to direct the officer to file his/her submissions first. That said, the hearing in the Tribunal is a hearing de novo, not an appeal. An officer does not need to demonstrate that the original decision-maker made an error in order for the Tribunal to conclude that the decision made was not the correct and preferable decision.
Is Matter 2 properly brought against the Officer?
- [14]OJM submits that the Tribunal should declare that there is no power for Matter 2 to be determined or considered. In particular, Matter 2 alleges as follows:
That on about 12 February 2001 at […] your conduct was improper in that, whilst off duty, you physically attacked your son, [DKM].
- [15]Particulars of the alleged events were provided, but do not need to be set out in full here.
- [16]OJM says that on 12 November 2004, the QPS completed an investigation in relation to the various complaints made by his former wife, including the complaint about abuse of his son that is now the subject of Matter 2.[9] The investigation report of Inspector Sakzewski, contained the following recommendations:[10]
Irrespective of the substantiated finding, no productive outcome would be achieved for the police service to address a delicate domestic matter from 2001 which was not likely to reoccur and where personal pain was so deep frank disclosure was difficult to obtain. This finding takes into consideration later evidence of [DKM]’s propensity to self-mutilate and what constitutes abuse being subjective. This finding also takes into consideration the decision by the treating doctor to refer the father and son to professional counselling as action to remedy the problem. This assessment by the referring Doctor would have taken into account the requirement of Medical Practitioners to refer matters of abuse, if detected, to police. Consequently, this investigation considers the matter finalised and no further action is necessary.
- [17]Inspector Sakzewki’s recommendations were initially considered by the then Assistant Commissioner of Ethical Standards Command, Ian Stewart. Then Assistant Commissioner Stewart wrote a memorandum dated 12 November 2004 to the Assistant Commissioner in charge of the Central Region, where OJM was based. In respect of the allegations about the complaint of physical abuse, he noted that the investigation established the complaint as substantiated, but warranted no further action. He said:[11]
This Command, although concerned about the nature of the allegations of physical abuse, is satisfied that the complaint is historical, unlikely to recur and was satisfactorily dealt with by referral to professional counselling by the attending Doctor at the time. Significantly, the child [DKM] does not wish to pursue a complaint against his father.
- [18]In respect of the various other allegations contained in the complaint by OJM’s former wife, many were considered unsubstantiated. However, the report recommended that OJM face disciplinary action in respect of electronic bugging allegations made (the bugging allegations). A formal notice of disciplinary hearing was subsequently given to OJM in respect of those bugging allegations.
- [19]The memorandum of 12 November 2004 from Assistant Commissioner Stewart, when received by the Assistant Commissioner of the Central Region, Assistant Commissioner Stolz, led to a document being given to OJM entitled a notice to Member when no disciplinary action is taken in respect of a complaint, dated 27 January 2005.[12] In the notice, Assistant Commissioner Stolz said, amongst other things, ‘[t]he investigation established that the second aspect of complaint (i) regarding you physically abusing you (sic) son was substantiated however, in the circumstances, warrants no further action’. The correspondence further stated that no adverse reference was to be placed on his personnel file in relation to the unsubstantiated matters.[13] By inference, the substantiated allegation of physical abuse would be noted on his personnel file. Subsequently, the charges in relation to bugging were substantiated and OJM was sanctioned by the imposition of one penalty point in respect of those charges.[14]
- [20]OJM submits that the allegations that are in substance Matter 2 were also finalised by way of the decision which was advised in the formal notice given by Assistant Commissioner Stolz on 27 January 2005. He submits that in all respects the events comply with the provisions for the bringing of disciplinary action under s 7.4 of the PSA as it was at the time. He submits that, as a consequence, the Deputy Commissioner had no power to reconsider the substance of Matter 2 in the current disciplinary action, commenced with a disciplinary hearing notice dated 23 October 2013. He refers to a number of court and tribunal decisions which he submits support the conclusion that disciplinary action cannot now be reconsidered in the circumstances.
- [21]The Deputy Commissioner submits that, although an investigation occurred into the issue in 2004, no disciplinary action was taken about the allegations in Matter 2. That being the case, he says there is no issue in now bringing disciplinary action about Matter 2. However, he says even if disciplinary action was taken at that time, that is not a bar to the bringing of disciplinary action more recently as the decisions relied upon to support OJM’s argument do not apply in the circumstances.
- [22]At the oral hearing on 19 May 2017, OJM raised concerns about his service profile as contained in the s 21(2) documents. OJM’s profile, including the complaints history against him as set out in the s 21(2) documents originally filed, contained no reference to the substantiated complaint of physical abuse. However, he contended that other documents indicate that there are other previous complaints histories/profiles prepared in respect of OJM which do refer to it.
- [23]The Deputy Commissioner conceded that, depending on what is contained in the personnel file of OJM, his submissions may change in relation to this aspect of the application.
- [24]I directed that the relevant parts of OJM’s personnel file and any complaint histories previously prepared about him be provided as supplementary s 21(2) documents in the Tribunal, to be followed by any further written submissions of the parties.
The supplementary s 21(2) documents and other evidence filed by the Deputy Commissioner
- [25]The Deputy Commissioner filed some further s 21(2) documents. He also filed affidavits of three police officers attaching various documents, primarily (but not exclusively) from OJM’s personnel records or contained in databases maintained by QPS about officers.
- [26]In his affidavit, an Inspector Harland states that he was assisting Assistant Commissioner Stolz at the relevant time and prepared the notice of intention not to take disciplinary action dated 27 January 2005; as well as, in essence, that he prepared the current disciplinary proceedings against OJM.[15] Further, he states that he took action to rectify the widespread inappropriate use of the terminology, ‘substantiated’ and ‘unsubstantiated’, in QPS complaint records.[16] He attaches general correspondence relating to this issue.[17] Inspector Harland says that if a matter is ‘substantiated’, there will be a record of a disciplinary hearing. He deposes that there was no disciplinary hearing into the allegations in 2004/5 which are now the substance of Matter 2. He also purports to explain Assistant Commissioner Stewart’s and Stolz’s intentions in giving their 2004 memorandum and 2005 notice of intention respectively. As he cannot know what was in their minds, that evidence is given little weight. In any event, for reasons later explained, I do not consider their intentions relevant.
- [27]Further, he seems to say that unless there is a record of a disciplinary hearing, no disciplinary action has been taken and a matter cannot have been ‘substantiated’ against a person, irrespective of what may be recorded in an officer’s personnel records.[18]
- [28]An affidavit from a Senior Constable Morris explains that she prepared a Complaint Profile for OJM in 2012, and another in 2014.[19] The latter profile document was prepared for these disciplinary proceedings. She says that on each occasion, the profile was prepared against all relevant personnel records, including the Client Service System (CSS) database. Subsequently, it was checked by the officer in charge on each occasion.[20] In 2016, she was asked to prepare a discipline and good work history for OJM.[21] The same process was followed. She says that on each of these three occasions, as a result of her ‘human error’, the process outcome of ‘substantiated’ and finalised as ‘no further action taken’, in relation to the subject allegations of physical abuse in contention, was not reported in any of the documents prepared.[22]
- [29]She says that in CSS in 2004, a ‘Process Code’ recorded the way in which a complaint was to be managed. She explained that each ‘Process Code’ had individual ‘Process Outcomes’ which included for example, ‘Unsubstantiated, Managerial Action, NFA- no further action taken’, ‘Withdrawn; Unable to Determine’; ‘Substantiated’ and ‘Disciplinary Proceedings’.[23] She says that depending on the ‘process code’ only ‘certain’ options of ‘process outcome’ were available. She does not elaborate what they were in each case. She further deposes that ‘audits’ identified that ‘for a number of years’ (until, it appears, 2016 [24]), an outcome of ‘substantiated’ was erroneously used, for ‘Process Codes’ other than ‘Disciplinary Hearing’ or ‘Show Cause’.[25]
- [30]Finally, the affidavit of an Inspector Ready explains that the CSS is ‘a repository for all information retained by the Service to record Discipline matters- Complaints and Favourable Comments.’[26] He sets out that in 2012, he conducted a review of matters associated with OJM for preparing a Discipline Record for purposes of Court of Appeal criminal proceedings,[27] (the detail of those proceedings does not require elaboration here). He transposed information from CSS which included the 2004/5 outcome of ‘Substantiated no further action’ in respect of the subject allegations of physical abuse into that discipline record.[28]
Has OJM previously faced disciplinary charges for the substance of the allegations in Matter 2?
- [31]The Deputy Commissioner’s written submissions prior to the oral hearing were to the effect that although the allegations had been substantiated, no disciplinary action was taken in respect of them.[29] This submission was made, in part, on the basis that there had been no hearing,[30] in contrast with the procedure adopted in respect of the bugging allegations.[31] Further, he argued that if disciplinary action had been taken, the conduct would have been categorised as either misconduct or a breach of discipline but it was not;[32] no action was taken within the meaning of sections 1.4 or 7.4(2) of the PSA Act;[33] and a notice was not given in compliance with s 7.4(2A).[34] He says that taking no action cannot be interpreted as taking disciplinary action.
- [32]Since the subsequent filing of the further s 21(2) documents and the affidavit material, the Deputy Commissioner’s primary submission appears to be that OJM has not been subject to disciplinary charges for the allegations in Matter 2 because there is no record of a disciplinary hearing until the current charges were brought against him.[35]
- [33]OJM submits that both (then) Assistant Commissioner Stewart and Assistant Commissioner Stolz were prescribed officers for the purposes of s 7.4(1) of the PSA Act at the relevant time. Further, he says that one of them decided an allegation that was in substance Matter 2, against OJM which amounted to disciplinary action for s 7.4 of the PSA Act. In essence, he argues that unless disciplinary action was taken, there was nothing that could have been ‘substantiated’. He submits that Inspector Harland’s evidence to the effect that there is no disciplinary action unless a disciplinary hearing is held is flawed. Further, non-compliance with the equivalent of s 7.4(2A) would not invalidate the disciplinary action.[36] He submits that the only reasonable inference is that the notation of ‘Substantiated no further action’ in the formal CSS database for recording Discipline matters- Complaints and Favourable comments[37] related to the allegations that are the substance of Matter 2.[38]
- [34]He argues that it is irrelevant to the determination about whether disciplinary action was taken, that the QPS now adopts different work practices or outcome codes as deposed to by Senior Constable Morris.[39]
- [35]Further, he submits that the relevant sections of the PSA Act and the relevant regulation did not refer to a ‘notice to attend a disciplinary hearing’, a ‘disciplinary hearing’, or ‘sanction’,[40] irrespective that these terms may be commonly used. He contends that the substance of the action taken at the time must be considered to determine whether it amounted to ‘disciplinary action’ within the meaning of the PSA Act.[41] If the action was ‘disciplinary action’, he contends that the respondent had no power to reconsider or reopen the disciplinary action,[42] relying upon decisions[43] to the effect that, unless on a proper construction, statutory power is exercisable from time to time, then it is spent by taking the required action, and later attempts to exercise the power are ultra vires.[44] Therefore, he says that Matter 2 was finalised in 2005.[45]
- [36]It is uncontroversial between the parties that the allegations contained in Matter 2, are in substance, the same allegations that are subject to the entry in CSS reflecting that the allegations were substantiated and no further action was to be taken. I accept, as Inspector Ready, deposes that the CSS records contains all discipline, complaint and favourable comments about an officer.
- [37]The 2005 notice to OJM, in effect, informed him that the allegations had been substantiated against him, although he was not to be sanctioned for them. It is apparent that his service record was intended to reflect, and still does (despite three errors by Senior Constable Morris and her supervisor in failing to include them in documents for this current disciplinary process), that the allegations were substantiated. The profile document prepared by Inspector Ready was provided, it seems, to the Court of Appeal in 2012, representing that OJM had allegations in the substance of Matter 2 substantiated against him in 2004, although ‘no further action’ was taken.
- [38]It is apparent from the available documents that the bugging allegations were treated somewhat differently from the allegations of physical abuse. They were the subject of a separate disciplinary hearing. That said, action of some type was taken in relation to the allegations of physical abuse. Did it amount to disciplinary action? It appears uncontroversial between the parties, and in any event I accept, that neither the PSA Act nor the relevant regulation at the time required that a disciplinary hearing be held in order for disciplinary action to be taken. There is force on OJM’s submission that I must consider the substance of what occurred in order to determine whether disciplinary action was taken, notwithstanding that the outcome notice was entitled ‘notice to Member when no disciplinary action is taken in respect of a complaint’.
- [39]There appears to be no controversy that both then Assistant Commissioner Stewart and Assistant Commissioner Stolz were prescribed officers under the PSA Act for the purposes of taking disciplinary action in the circumstances. In its terms, the memorandum of then Assistant Commissioner Stewart, although referring to the investigation as substantiating the allegations, was advisory in nature and directed to Assistant Commissioner Stolz rather than the officer concerned, that is OJM. I find that it was Assistant Commissioner Stolz in acting upon the recommendations, and writing to the officer, who took whatever action was taken against OJM in relation to the allegations. There is no direct evidence before the Tribunal about his intention in doing what he did, but in any event, I do not consider his intention determinative of whether disciplinary action was taken.
- [40]Looking objectively at the undisputed facts, a prescribed officer, Assistant Commissioner Stolz, informed OJM that the physical abuse allegations had been substantiated against him. He also informed OJM that no further action was to be taken as a consequence. It was clear from the notice that OJM’s service record would reflect the substantiated finding against him in CSS. It was in fact recorded in CSS, and as I understand it, despite the deficiencies in the existing service records provided in the current disciplinary process, continues to be reflected in CSS. The service record provided in the criminal proceedings included the detail of it as substantiated against OJM.
- [41]Could the allegations be recorded in this manner and treated by the police service for all purposes, other than, it seems, these current disciplinary proceedings, as substantiated against a person in the absence of disciplinary action being taken?
- [42]Logically, a complaint if considered to have some basis results in a recommendation that disciplinary action be taken. The disciplinary action might then result in a finding that the allegation is substantiated or not. The Deputy Commissioner’s submissions do not suggest that a complaint process in some way, as distinct from disciplinary action, legitimately results in a finding of substantiation on an officer’s discipline record.
- [43]Inspector Harland’s evidence is that he has taken steps to reform what he considered to be inappropriate practice about the misuse of the terms substantiated and not substantiated ‘as they relate to discipline’.[46] He says that the use of the term substantiated in the outcome notice given to OJM is an error because no discipline hearing had been conducted by a prescribed officer, but was the convention of the time.[47] That said, in correspondence (prepared by Inspector Harland) and sent to the Crime and Corruption Commission in 2016, to clarify the use of the terms ‘substantiated’ and ‘unsubstantiated’, as they relate to discipline, the QPS advised that the use of the terms may have become confused over time, but are reserved exclusively to describe the two possible outcomes of a disciplinary hearing…[48] Steps were said to have been taken to restrict the use of the words to their intended purpose: this is said to be clarification of existing, rather than new, policy.[49] Inspector Harland’s evidence appears to confirm that despite what is referred to as widespread inappropriate practice, substantiation was something that could only occur in the context of disciplinary proceedings.
- [44]The Deputy Commissioner submits that it was or could not be disciplinary action in the absence of a disciplinary hearing. It is uncontroversial that a disciplinary hearing was not held. This may be evidence supporting either that there was a failure to adhere to the accepted process for taking disciplinary action or that disciplinary action was not taken. However, the officer was informed that the allegations made against him were substantiated although no further action would be taken.
- [45]Taking disciplinary action necessarily involves two stages. Firstly, a determination must be made about whether an officer has committed a breach of the required conduct as alleged against him/her. If so, a determination follows about the sanction to be imposed in the circumstances. As a matter of practice, at least in current times, a disciplinary hearing occurs in relation to the substantiation and sanction stages of the process, irrespective that the legislation does not refer to a requirement for a hearing before the prescribed officer.
- [46]Based on the events, if disciplinary action was taken OJM was deprived of the opportunity to be heard in the process because there was no hearing. Despite Inspector Harland’s evidence that notice given to OJM was in error in referring to substantiation because there had not been a disciplinary hearing, it did so. Further, it informed him that this would be recorded in his service record. The substantiated finding remains on his service record.
- [47]The failure to give OJM the opportunity to be heard in a disciplinary hearing cannot change the character of the actions taken. Indeed, the submission of the Assistant Commissioner taken to its logical conclusion, suggests that the failure of the prescribed officer to adhere to proper process, should consequently entitle the QPS to take disciplinary action on multiple occasions. In this case, that would result in OJM being required to go through another disciplinary process, relating to events recorded as substantiated against him for many years before the most recent disciplinary process began.
- [48]It appears to me that finding allegations substantiated and deciding not to impose a sanction for established allegations is different from not taking disciplinary action. There are two components to disciplinary action. The submissions of the Deputy Commissioner presume that taking ‘no action’ means disciplinary action is not taken. In finding a disciplinary allegation substantiated, disciplinary action was taken irrespective of the sanction imposed – in this case, none (other than perhaps the entry in his service record).
- [49]Based on the evidence before me, I am satisfied on the balance of probabilities that the only reasonable inference to be drawn is that disciplinary action was taken by Assistant Commissioner Stolz. He accepted that the allegations against OJM were proven and he decided (in line with the advice/recommendations of Ethical Standards Command) not to impose a sanction. That said, as adverted to earlier, it seems to me that in recording the substantiation on OJM’s service record a sanction of some sort arguably was imposed, irrespective of the advice that no further action would be taken.
- [50]In making these findings, I am mindful that a different process was taken in disciplinary action concerning the bugging allegations. In accordance with usual QPS practice, a disciplinary hearing is good practice, despite not being required by the PSA Act in taking disciplinary action.
- [51]The procedural irregularities that occurred in the earlier disciplinary process, that appear to me to likely include a failure to properly articulate the charges and a failure to provide procedural fairness generally, may likely have provided grounds for appeal, but did not make the decision void. Further, I agree with OJM that failure to inform him of his right to this avenue of appeal did not act to invalidate the decision made. Indeed, it remains on his CSS record to this day.
Does my finding that disciplinary action was taken by Assistant Commissioner Stolz preclude further disciplinary action for Matter 2?
- [52]The Deputy Commissioner says that a finding that disciplinary action has previously been taken in respect of the allegations in Matter 2, does not preclude Matter 2 now being considered. He says this is because the decisions relied upon by OJM do not apply. He says further compelling evidence emerging since 2012 that now requires further action be taken.
- [53]I express the preliminary view that, unless there is a compelling argument that on a proper construction the relevant statutory scheme provides for the repeated exercise of the statutory power to take disciplinary action in respect of the same allegations, it appears likely that the power, having been exercised, cannot be reopened.
- [54]However, the focus of submissions of the Deputy Commissioner to date has been upon the nature of the action taken in 2004/2005 in respect of the allegations in Matter 2. In light of my findings, I consider it appropriate to provide an opportunity for arguments about the proper statutory construction of the scheme to be made by the Deputy Commissioner. If further written submissions are provided by him, OJM should have the opportunity to respond. I make directions accordingly.
- [55]If the Deputy Commissioner accepts that my preliminary view about the construction of the scheme is correct, I propose to make a declaration to the effect that there is no power for Matter 2 to be further considered.
Orders
- [56]I make directions about the order of filing submissions.
- [57]I also make directions as indicated providing the opportunity for the Deputy Commissioner (and if further submissions are provided by the Deputy Commissioner, OJM) to make further submissions about whether disciplinary action may be taken on multiple occasions in respect of the same allegations.
- [58]Unless a party requests a further oral hearing, I propose to further determine on the papers whether to make the declaration sought by OJM that there is no power for Matter 2 to be considered in the current disciplinary process.
Non-publication order
- [59]A non-publication order is in effect that prohibits publication of material and information before the Tribunal that may identify OJM or any third party. Pursuant to that order, these reasons for decision are published in a de-identified format.
Footnotes
[1][2016] QCAT 348.
[2]PSA Act, s 7.4(2A).
[3]CCC Act, s 219I(1), s 219J(1).
[4]Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348, [57].
[5][2010] QCAT 530.
[6]Disley v Queensland Police Service [2010] QCAT 530, [22].
[7]CCC Act, s 219I(1), s 219J(1).
[8]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 28.
[9]Section 21(2) documents, p A253.
[10]Ibid, p A272.
[11]Section 21(2) documents, p P192.
[12]Section 21(2) documents, p A3-A4.
[13]Ibid, p A4.
[14] Ibid, p A10-A11.
[15]Affidavit of Inspector Harland, [4]-[7], [16]-[18].
[16]Ibid, [22].
[17]Ibid, [23], DRH4.
[18]Affidavit of Inspector Harland, [24].
[19]Affidavit of Senior Constable Morris, 3.
[20]Ibid, [13]-[16], SMM2.
[21]Ibid, [17]-[19], SMM3.
[22]Affidavit of Senior Constable Morris, [23]-[24].
[23]Ibid, [23].
[24]Ibid, [25].
[25]Ibid, [24].
[26]Affidavit of Inspector Ready, [3].
[27]Ibid, [2].
[28]Ibid, [4]-[6], PR1.
[29]Deputy Commissioner’s Submissions filed 16 January 2017, [43]-[44].
[30]Ibid, [45]-[47].
[31]Ibid, [47].
[32]Ibid, [48].
[33]Ibid, [49].
[34]Ibid, [48].
[35]Deputy Commissioner’s Submissions filed 29 August 2017, [31]-[32].
[36]OJM’s submissions filed 27 January 2017, [10(d)].
[37]Affidavit of Inspector Ready, [3].
[38]OJM’s submissions filed 1 September 2017, [16].
[39]OJM’s submissions filed 1 September 2017, [18]-[20].
[40]Ibid, [26].
[41]Ibid, [28]-[30].
[42]Ibid, [31].
[43]Including, Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 1 FCR 193, per Gummow J; and Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26, [40].
[44]OJM’s submissions filed 25 November 2016, [21]-[24].
[45]Ibid, [26]-[27].
[46]Affidavit of Inspector Harland, [23], at DRH4.
[47]Ibid, [18].
[48]Affidavit of Inspector Harland, [23], at DRH4.
[49]Ibid.