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Jones v McNab[2019] QCAT 213

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jones v McNab [2019] QCAT 213

PARTIES:

LYNETTE JONES

 

(applicant)

 

v

 

bRUCE mCnAB

 

(respondent)

APPLICATION NO/S:

OCR297-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

THE TRIBUNAL DIRECTS THAT:

  1. Lynette Jones must file in the Tribunal one (1) copy and give to Bruce McNab one (1) copy of any further written submissions addressing the following:
  1. (a)
    whether the time for filing the application to review should be extended; and
  2. (b)
    whether any non-publication orders should be made under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), by:

4:00pm on 9 July 2019

  1. Bruce McNab must file in the Tribunal one (1) copy and give to Lynette Jones one (1) copy of any further written submissions in response, by:

4:00pm on 16 July 2019

  1. Unless otherwise ordered, the matter will be determined by the Tribunal on the papers by written submissions filed by the parties and without an oral hearing on a date not before 4:00pm on 17 July 2019.

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where police officer was issued with a notice of temporary re-deployment and directions – where review application filed – consideration of principles for granting an extension of time – whether decision is a reviewable decision – whether decision is a decision about an allegation of corruption

Crime and Corruption Act 2001 (Qld), s 219BA, s 219C, s 219J, s 219G, s 219H, Schedule 2

Police Service Administration Act 1990 (Qld), s 1.4, s 4.8, s 4.9, s 5.12, s 7.4

Police Service (Discipline) Regulations 1990 (Qld), s 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), 3, 6, s 17, s 19, s 47, s 66, s 157

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

Nesterowich v Platz [2018] QCATA 119

Irwin v Stewart (Commissioner of Police) & Anor [2015] QSC 350

REPRESENTATION:

 

Applicant:

M Black of Counsel

Respondents:

C Capper, A/Principal Legal Officer of the Queensland Police Legal Unit

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

  1. [1]
    Lynette Jones is an officer with the Queensland Police Service (‘QPS’) and holds the rank of Senior Constable.
  2. [2]
    On 18 April 2018, Ms Jones was issued with a notice of temporary redeployment and directions that required her to perform her duties in another workplace.
  3. [3]
    On 16 October 2018, a further notice was issued to Ms Jones to continue her redeployment (‘the decision’). The decision was signed by Bruce McNab, Superintendent and referred to allegations of workplace harassment and bullying which are currently under investigation.
  4. [4]
    Ms Jones filed an application seeking a review of Mr McNab’s decision to continue her redeployment. The review application was filed outside the prescribed period of 14 days.[1] More importantly, the review application identified a question of jurisdiction to be determined by the Tribunal as to whether the decision is a ‘reviewable decision’ for the purposes of s 219BA(1) of the Crime and Corruption Act 2001 (Qld) (‘CC Act’).
  5. [5]
    After Ms Jones filed her review application, the Tribunal made directions that required Mr McNab to file submissions ‘in response to the application to review a decision and correspondence, including in relation to the question of the jurisdiction of the Tribunal’.[2]
  6. [6]
    Ms Jones was directed to file any submissions in reply. Further, the Tribunal directed that ‘the question of whether the Tribunal has jurisdiction to determine the application to review a decision filed 13 November 2018’ is to be determined by the Tribunal on the papers.[3]

What is the issue to be determined?

  1. [7]
    The review application is filed outside the prescribed period of 14 days for filing an application.[4] The Tribunal may, however, extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act, such as the CC Act.[5]
  2. [8]
    It is settled law that the usual considerations relevant to the exercise of the Tribunal’s discretion to extend time include: the length of delay; the adequacy of explanation of the delay; the merits of the proceeding sought to be litigated; prejudice to others; and the interests of justice.[6]
  3. [9]
    In the review application, Ms Jones requests an extension of time to file her application if it is determined that her application is filed outside the prescribed period of 14 days.[7] Ms Jones submits that she mistakenly believed that the lodgement period of 28 days under the QCAT Act applied.[8] Ms Jones submits that the respondent will not suffer prejudice if the application is accepted out of time and the out of time period is not lengthy.
  4. [10]
    In this matter, notwithstanding the fact that the review application has been filed outside the prescribed period for filing an application under the CC Act, the Tribunal directed that only the question of jurisdiction is to be considered.[9]
  5. [11]
    The question of jurisdiction and more importantly whether the decision is a ‘reviewable decision’ pursuant to s 219G(1) of the CC Act, is relevant to the merits of the proceeding. As discussed above, the merits of the proceeding is one of a number of considerations relevant to the Tribunal’s discretion to extend the time for filing the application to review.
  6. [12]
    In the interests of meeting the Tribunal’s objectives such as to deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’,[10] the Tribunal will firstly consider the question of jurisdiction. More importantly, the Tribunal will determine whether the decision made by Mr McNab on 16 October 2018 is a ‘reviewable decision’ for the purposes of s 219BA(1) of the CC Act.
  7. [13]
    Ms Jones says that the decision is a ‘reviewable decision’ as defined by s 219BA(1) of the CC Act; namely a ‘decision made in relation to an allegation of corruption against a prescribed person’.[11] Ms Jones says that pursuant to s 219C of the CC Act, the Tribunal has jurisdiction to review the decision.[12]
  8. [14]
    In response to the Tribunal’s directions, the QPS, on behalf of Mr McNab, submit that the application should be dismissed for want of jurisdiction.[13]
  9. [15]
    The QPS submit that the decision made by Mr McNab was a decision pursuant to
    s 4.8 and 4.9 of the Police Service Administration Act 1990 (Qld) (‘PSA Act’). The QPS submit that the PSA Act is not an enabling Act within the meaning of s 6(2) of the QCAT Act as there is no provision within the PSA Act which confers jurisdiction upon the Tribunal in either its original jurisdiction or review jurisdiction.[14]
  10. [16]
    The QPS also submit that Mr McNab’s decision was simply temporal to an ongoing discipline investigation and Mr McNab was not involved in the investigation of the alleged conduct of Ms Jones. Further, the QPS submit that the decisions of Mr McNab cannot on any reading be said to be ‘a decision made in relation to an allegation of corruption’ against Ms Jones.[15]

The Tribunal’s power to review a decision

  1. [17]
    The Tribunal has the power to review decisions as conferred on it by an enabling Act.[16] Relevantly, s 17 of the QCAT Act provides that the Tribunal’s review jurisdiction is the jurisdiction conferred on it by an enabling Act to review a decision made or taken to have been made by another entity under the Act.
  2. [18]
    Further, s 157 of the QCAT Act requires the decision-maker for a reviewable decision to give a written notice of the decision to each person who may apply to the tribunal for a review of the decision. Section 157(2) of the QCAT Act provides that the notice must state, amongst other things, the decision, the reasons for the decision, the person has a right to have the decision reviewed by the tribunal, the period within which the person may apply for a review and any right the person has to have the operation of the decision stayed under the QCAT Act.
  3. [19]
    The CC Act is an enabling Act that confers both original and review jurisdiction on QCAT.[17] Relevantly, s 219G of the CC Act provides that the Crime and Corruption Commission and a prescribed person against whom a decision was made may apply for review of a ‘reviewable decision’.[18] A review of a reviewable decision proceeds before the tribunal by way of a rehearing on the evidence given in the proceeding before the original decision-maker.[19] The tribunal, in exercising its review power under the QCAT Act, must decide the matter afresh to arrive at the correct and preferable decision.[20]
  4. [20]
    A ‘reviewable decision’ is defined under s 219BA of the CC Act as follows (emphasis added):

219BA Meaning of reviewable decision

  1. (1)
    A reviewable decision means
  1. (a)
    a decision made in relation to an allegation of corruption against a prescribed person, other than a decision made by a court or QCAT; or
  1. (b)
    a finding mentioned in the Police Service Administration Act 1990, section 7.4(2A)(b) or 7A.5(1)(b) that corruption is proved against an officer.
  1. (2)
    In this section—

decision, made in relation to a disciplinary allegation of corruption, if disciplinary declaration is made, includes the disciplinary declaration.

Note—

A reviewable decision may also involve a failure to make a disciplinary declaration.

disciplinary declaration means a disciplinary declaration made under—

  1. (a)
    the Public Service Act 2008, section 188A; or
  1. (b)
    the Police Service Administration Act 1990, section 7A.2(2).

prescribed person, in relation to a prescribed person mentioned in section

50(4), definition prescribed person, paragraphs (a)(ii) and (b)(ii), means—

  1. (a)
    a prescribed person against whom a disciplinary declaration has

been made; or

  1. (b)
    in relation to an appeal started by the commission under section

219G—

  1. (i)
    a prescribed person mentioned in paragraph (a); or
  1. (ii)
    a prescribed person against whom a disciplinary declaration has not been made if a ground of appeal states that a disciplinary declaration should have been made.
  1. [21]
    The CC Act defines ‘corruption’ as ‘corrupt conduct or police misconduct’.[21] ‘Police misconduct’ is defined in the CC Act as follows:

police misconduct means conduct, other than corrupt conduct, of a police officer that—

  1. (a)
    is disgraceful, improper or unbecoming a police officer; or
  1. (b)
    shows unfitness to be or continue as a police officer; or
  1. (c)
    does not meet the standard of conduct the community reasonably expects of a police officer.[22]
  1. [22]
    There is power under the PSA Act for disciplinary action to be taken if a ‘prescribed officer’ decides an ‘allegation of misconduct’ brought against an officer or finds ‘misconduct’ when deciding an allegation of breach of discipline brought against an officer.[23] Relevantly, s 7.4(2A) of the PSA Act requires the commissioner to give a QCAT information notice to the officer and the Crime and Corruption Commission for ‘the decision or finding’ within 14 days after the making of the decision or finding.[24]
  2. [23]
    The Police Service (Discipline) Regulations 1990 (Qld) is also relevant to any decision made under the PSA Act concerning a finding of misconduct. The Regulation provides the various disciplinary powers of the commissioner and the grounds for taking certain disciplinary action. More importantly, r 9 sets out the grounds for disciplinary action for the purposes of s 7.4 of the PSA Act that includes ‘misconduct’.
  3. [24]
    As observed in Irwin v Stewart (Commissioner of Police) & Anor[25] the disciplinary powers under s 7.4 of the PSAA are exercisable only where there is a decision or finding by the prescribed officer under s 7.4(2A).
  4. [25]
    In Irwin, the Court made findings about a notice issued to a senior constable in the QPS that expressed concerns that the officer had engaged in misconduct based on a large number of complaints which had been made by members of the public which were to the effect that the officer had used excessive force in the discharge of his duties. The officer sought declaratory relief and argued that the directions and the foreshadowed transfer (as identified in the notice) were invalid and of no force or effect. The officer argued that the directions and transfer were for the purpose of disciplining him for misconduct; and therefore the QPS’s powers must be exercised within the statutory regime for the discipline of police officers which is prescribed by Pt 7 of the PSA Act.[26]
  5. [26]
    In Irwin the Court found that the notice issued to the officer made no allegation of misconduct and there was no finding of misconduct as proven against the officer. McMurdo J held:

As already discussed, the various notices and documents which have come from the second respondent do not record a finding of misconduct on the part of the applicant. The disciplinary powers under s 7.4 of the PSAA and the Public Service (Discipline) Regulations 1990 are exercisable only where there is a decision or finding by the prescribed officer under s 7.4(2A). There must be either a decision that an allegation of misconduct is proved or, when an allegation of breach of discipline is brought against an officer, a finding that misconduct is proved against the officer. Neither of those things has happened in the present case. So the specific but limited powers under Pt 7 are not presently exercisable and the principle which is discussed in those cases does not appear to apply.[27]

Discussion

  1. [27]
    In this matter, Ms Jones seeks a review of the decision to continue her temporary redeployment. The decision was purportedly made under s 4.8 and s 4.9 of the PS Act in that it identifies the relevant sections of the PSA Act (s 4.8 and 4.9) and refers to ‘procedural guidelines for professional conduct, standard of practice’.
  2. [28]
    It is common ground that the Commissioner of the QPS is empowered under s 4.8 of the PS Act to, as provided, ‘do …all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility’.[28]  Further, the Commissioner is authorised to make directions under s 4.9 of the PSA Act.
  3. [29]
    Here, Ms Jones submits that the Tribunal has jurisdiction to review a ‘reviewable decision’ and will have jurisdiction to review the respondent’s decision if:
    1. (a)
      First, it is a ‘decision’ as that term is used in the CC Act; and
    2. (b)
      Second, there is an ‘allegation of corruption’ as that term is used in the CC Act; and
    3. (c)
      Third, the Decision was ‘in relation to’ the allegation of corruption.[29]
  4. [30]
    Ms Jones says that each of the three conditions identified above is satisfied in this case, and so the Tribunal has jurisdiction to review the decision. In particular, Ms Jones says that the evidence demonstrates that there is an ‘allegation of corruption’. Further, the sole and express reasons for the redeployment decision was the existence of the allegations made against Ms Jones (and the associated risks referred to by Mr McNab). Ms Jones says that it follows that the connection between the decision and the allegations is not merely temporal but rather the decision arises as a result of the allegations; the decision is (purportedly) justified by those allegations; and the decision is intended to ‘eliminate or minimise risks’ constituted by those allegations; that is to manage the consequences of the allegations.[30]
  5. [31]
    Finally, Ms Jones submits that the Tribunal should conclude that:
    1. (a)
      The re-deployment notice reveals that the QPS is investigating an assertion that Ms Jones may have engaged in ‘corruption’ (namely, ‘police misconduct’ in the nature of workplace bullying or harassment) for the purposes of s 219BA(1) of the CC Act;
    2. (b)
      The re-deployment decision made under s 4.8 and s 4.9 of the PSA Act, is a decision for the purposes of s 219BA(1) of the CC Act; and
    3. (c)
      Having regard to the statutory context and the facts of the case, the redeployment decision was made ‘in relation to’ the allegation of misconduct for the purposes of s 219BA(1) of the CC Act.[31]
  6. [32]
    I accept Ms Jones’ submission that the re-deployment decision reveals that the QPS is investigating an allegation that Ms Jones may have engaged in ‘misconduct’.  Mr McNab’s decision clearly refers to ‘allegations’ of workplace harassment and bullying that are currently under investigation. Further, the material filed by Ms Jones together with the review application includes an extract from a document referring to an investigation of two charges of misconduct. The charges of misconduct relate to a failure to follow direction/instruction/order and as a result of ongoing negative workplace behaviour. Relevantly, the ‘in confidence’ document states that, amongst other things, ‘…at the conclusion of this investigation, it can be opined two charges of misconduct are capable of being substantiated’.[32]
  7. [33]
    I do not accept, however, that the decision purportedly made under s 4.8 and s 4.9 of the PSA Act is a reviewable decision for the purposes of s 219BA(1) of the CC Act.
  8. [34]
    Although the decision refers to allegations currently under investigation, there is no allegation of corruption (or police misconduct) nor a finding of misconduct for the purposes of s 7.4 of the PSA Act. Further, there is no written notice that Ms Jones as the ‘officer’ (for the purposes of s 7.4(2A) of the PSA Act) or ‘prescribed person’ (for the purposes of s 219G of the CC Act) may apply to the Tribunal for a review of the decision.[33]
  9. [35]
    As held in Irwin, the disciplinary powers under s 7.4 of the PSAA are exercisable only where there is a decision or finding by the prescribed officer under s 7.4(2A). In particular, there must be either a decision that an allegation of misconduct is proved, or when an allegation of breach of discipline is brought against an officer, a finding that misconduct is proved against the officer.
  10. [36]
    Here, the decision does not record a finding that an allegation of misconduct is proven. The decision clearly states that there are allegations currently under ‘investigation’ and it is necessary to continue Ms Jones’ redeployment to another workplace ‘pending an outcome of this investigation’. Further, the decision directs Ms Jones to, amongst other things, perform all duties (as directed), not to attend her place of work unless there is a legitimate operational reason for her to attend, hand in all keys, access passes, resources and equipment, not to contact any staff attached to the section (or place of work) where she was working, not to contact any member of the QPS with regard to the ‘matter’, and to keep the matter of this notice ‘confidential’. The notice also refers to the commissioner’s ‘standard of practice requirement’ to comply with directions and that a contravention of the ‘standard of practice’ may result in disciplinary action.
  11. [37]
    Ms Jones’ submission that having regard to the statutory context and the facts of the case, the decision was made ‘in relation to’ the allegation of misconduct for the purposes of s 219BA(1) of the CC Act is rejected.
  12. [38]
    As discussed above, a decision made in relation to an allegation of corruption (or misconduct) arises where the prescribed officer has exercised the powers under s 7.4 of the PS Act. The Tribunal can only review a ‘reviewable decision’ as conferred by s 219G of the CC Act. Section 219BA of the CC Act provides that a ‘reviewable decision’ means a decision made in relation to an allegation of corruption (or misconduct) against a prescribed person; or a finding mentioned in the PSA Act, s 7.4(2A)(b) or s 7A.5(1)(b) that corruption (or misconduct) is proved against an officer.[34] Here there is no allegation of misconduct nor finding of misconduct necessary for there to be a proper exercise of the powers under s 7.4 of the PSA Act. The decision is not a ‘reviewable decision’ for the purposes of s 219BA(1) of the CC Act

Conclusion

  1. [39]
    I have found that Mr McNab’s decision of 16 October 2018 is not a ‘reviewable decision’ for the purposes of s 219BA(1) of the CC Act.
  2. [40]
    As discussed above, the jurisdiction issue and more importantly whether the decision of 16 October 2018 is a ‘reviewable decision’ for the purposes of s 219BA(1) of the CC Act is one of a number of matters for the Tribunal to consider in exercising its broad discretion to extend the time for filing the review application. Before proceeding to make final orders in this matter, both parties should be given an opportunity to file any further submissions in relation to the disposition of this matter, in particular whether the time for filing the application to review should be extended.
  3. [41]
    The parties are also invited to file any submissions as to whether it is necessary to make any non-publication orders under s 66 of the QCAT Act given that the decision specifically provides that Ms Jones must ‘keep the matter of this notice confidential’.  I will make directions accordingly.

Footnotes

[1]  As required under s 219G(2)(b) of the Crime and Corruption Act 2001 (Qld) (‘CC Act’).

[2]  Directions made by Senior Member Aughterson dated 4 December 2018.

[3]  Ibid. Matter listed for a decision on the papers on 23 April 2019.

[4]  See s 219G(2)(b) of the CC Act

[5]  QCAT Act, s 61.

[6]  See Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 citing a number of authorities including Braunberger v Assistant Commissioner Les Hopkins [2014] QCATA 320.

[7]  Application to review filed on 13 November 2018.

[8]  Ibid.

[9]  Directions made by Senior Member Aughterson dated 4 December 2018.

[10]  QCAT Act, s 3.

[11]  Applicant’s outline of submissions re: jurisdiction filed 29 January 2019.

[12]  Ibid.

[13]  Respondent’s outline of submissions filed 15 January 2019.

[14]  Ibid.

[15]  Ibid.

[16]  QCAT Act, s 6 and s 17.

[17]  CC Act, s 219F, s 219G.

[18]  CC Act, s 219B, s 219C, s 219H and s 219J.

[19]  CC Act, s 219H.

[20]  QCAT Act, s 20.

[21]  CC Act, Schedule 2.

[22]  CC Act, Schedule 2.

[23]  PSA Act, s 7.4.

[24]  PSA Act, s 7.4. See s 157 of the QCAT Act.

[25]  [2015] QSC 350.

[26]  Ibid, [7].

[27] Irwin, [21].

[28]  Applicant’s submissions filed 29 January 2019.

[29]  Ibid.

[30]  Ibid.

[31]  Applicant’s submissions filed 29 January 2019.

[32]  Application to review a decision filed 13 November 2018 and document identified as ‘appendix 35’.

[33]  See also s 157 of the QCAT Act.

[34]  CC Act, s 219BA(1).

Close

Editorial Notes

  • Published Case Name:

    Jones v McNab

  • Shortened Case Name:

    Jones v McNab

  • MNC:

    [2019] QCAT 213

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    02 Jul 2019

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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