Young v Dawson (No. 2)[2022] QCAT 48

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this application about?

1. [1]
   The applicant is a police officer who was charged with four disciplinary allegations, identified as Matter 1, Matter 2, Matter 3, and Matter 4 respectively, in respect of which the respondent found him guilty of misconduct by a decision made 1 December 2017 (“the decision”).
2. [2]
   On 12 December 2017 the applicant applied to the Tribunal for a review of the decision.
3. [3]
   On 24 February 2019 the Tribunal^[1] set aside the finding number (ix) within Matter 1 and on 27 November 2020 the Appeal Tribunal^[2] set aside additional findings numbered (iii) and (vii) within Matter 1. 
4. [4]
   Consequently, this decision concerns how the applicant is to be sanctioned with respect to substantiated misconduct numbered (i), (ii), (iv), (v) (vi) and (viii) within Matter 1, and Matters 2, 3 and 4 (“the sanction decision”). 
5. [5]
   The role of the Tribunal remains is to review the circumstances afresh and to produce the correct and preferable decision on sanctions.^[3]
6. [6]
   The role of the respondent, as the original decision-maker, is to assist the Tribunal in making the sanction decision,^[4] rather than to take an adversarial role or to defend the decision under review.
7. [7]
   Helpfully, the parties have filed joint submissions on the issue of sanctions, include a draft sanction decision signed by both and tendered as a “consent order”.  The applicant and the respondent agree on what the correct and preferable sanction decision is and have tendered it in draft to the Tribunal for consideration.
8. [8]
   The parties jointly submit that:

When the parties are able to jointly propose a sanction in disciplinary proceedings, and the Tribunal is satisfied that it is “an appropriate” order, then the Tribunal ought not lightly depart from the proposed sanction.^[5]

Does the tribunal have jurisdiction to hear this application?

1. [1]
   The Tribunal has jurisdiction to deal with matters if empowered to do so by the QCAT Act or by an enabling Act^[6] and its review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.^[7] 
2. [2]
   A decision to take disciplinary action against a police officer for misconduct is a reviewable decision and pursuant to section 7.4 of the Police Service Administration Act 1990 (Qld) (“Police Act”), sections 219H and 219J of the Crime and Corruption Act 2001 (Qld) (“the CC Act”) and section 18 of the QCAT Act, Mr Young is able to able to apply for a review of the decision.
3. [3]
   I am therefore satisfied that the sanction decision is one the tribunal has jurisdiction to make.

The original decision and sanctions

9. [9]
   The four disciplinary matters the subject of the decision are:^[8]

Matter 1

That between 1 June 2010 and 6 February 2015 at the Gold Coast and elsewhere your conduct was improper in that you engaged in negative workplace behaviour with members of Gold Coast Water Police.

Matter 2

That between 1 June 2010 and 6 February 2015 at the Gold Coast your conduct was disgraceful in that you used inappropriate language at the Main Beach Subway store.

Matter 3

That between 1 June 2010 and 6 February 2015 at the Gold Coast and elsewhere your conduct was improper as the Officer in Charge:

1. (a)
   failed to use QPS resources efficiently and effectively, and
2. (b)
   failed to prevent a foreseeable, actual or apparent conflict of interest from arising. 

Matter 4

That between 1 January 2014 and 1 June 2015 at the Gold Coast and elsewhere your conduct was improper in that you, without an official purpose relating to the performance of your duties, accessed official and confidential information.

10. [10]
    Particulars of the conduct comprised within each matter are set out in the decision and I do not repeat them here, other than to note that the decision-maker, in my view, correctly observed that the applicant’s misconduct seriously undermined his standing as a senior officer and the ability to be a supervising officer at the rank of Senior Sergeant within Operations Support Command and that it had impacted negatively on fellow officers and exposed the Service to embarrassment and a risk of loss of public confidence.^[9]
11. [11]
    The original sanction decision was to demote the applicant in rank from Senior Sergeant at paypoint 4.52 to Sergeant at paypoint 3.1 and:

I further order you progress from paypoint 3.1 to paypoint 3.3 at the expiration of a 12 month operational period from the date of this finding by virtue of the provisions of section 12.1 of the Human Resource Policies. Your progression will be subject to you attaining an acceptable Performance, Development and Assessment (PDA) report for the preceding 12 month period. After this you may continue to progress subject to normal industrial arrangements.^[10]

12. [12]
    The demotion was permanent or indefinite in the sense that it did not allow for an automatic resumption of rank after a period.
13. [13]
    Mr Young was also to participate in a Management Action Plan that included staged mentoring and engagement in leadership programs.^[11]

The proposed sanction

14. [14]
    The parties propose that the original sanction decision be varied to restore the applicant to the rank of Senior Sergeant (at paypoint 4.4) from 1 July 2020 and otherwise that the original sanction decision should be confirmed.
15. [15]
    The proposed sanction is submitted by the parties to the Tribunal as appropriate having regard to:

Factors favouring sanction

1. (a)
   The misconduct occurred over a protracted period, was serious and at times disgraceful. As the Tribunal observed in Crime and Corruption Commission v Assistant Commissioner MJ Keating & Anor:^[12]

…members of the public expect that police officers will conduct themselves appropriately when performing their duties and refrain from using offensive and rude language.

2. (b)
   It is an essential requirement that a Senior Sergeant has integrity and an ability to provide effective and efficient supervision and management of policing services. The substantiated instances of misconduct establish that the applicant failed to exhibit these characteristics over a protracted period.

Factors favouring the applicant

3. (c)
   The investigation was protracted, and the delay has had a significant impact on the applicant’s career.  He was demoted to Sergeant from 1 December 2017 and subsequently transferred away from the Water Police to the Railway Squad.
4. (d)
   The applicant has expressed remorse and disappointment and has shown insight in accepting the charges: With respect to Matter 1, the applicant consistently accepted the charges as substantiated misconduct, but disputed particular findings within the charge as a breach of discipline rather than misconduct, in respect of which he was ultimately successful.  With respect to Matters 2, 3, and 4, the applicant consistently accepted that each charge as misconduct.
5. (e)
   The applicant has over thirty years’ experience with the Queensland Police Service and was first promoted to Senior Sergeant in 2010.  He has skills and experience gained over that period that are an asset to the Queensland Police Service.  The applicant’s conduct since the findings has been the subject of favourable reports from relevant Inspectors and other superior officers.^[13]  He has also been relieving from time to time in Senior Sergeant positions.
6. (f)
   The applicant has undertaken extensive remedial work^[14] including:

   1. apologising to persons affected by his conduct;
   2. completing numerous QPS courses and training programs on conduct-related issues including Human Rights, QPS Discipline, Fundamentals of Command, Improving Workplace Behaviours, Building Team Performance, Multicultural Awareness, Interpersonal Communication, Group Behaviour, Negative Workplace Behaviour, and Workplace Conversations;
   3. fostering formal and informal mentoring relationships with colleagues. 
7. (g)
   The applicant’s redeployment during the disciplinary process has caused financial loss to the applicant, estimated^[15] at $345,903.11 9 in salary, allowances and superannuation as a consequences of the demotion plus $35,252.00 in lost operational shift allowances as a consequence of the transfer.

Findings and decision

16. [16]
    On 30 October 2019, substantial amendments to the Police Act and the CC Act took effect, with transitional provisions deeming the Acts as in force prior to that date as applying to this proceeding.^[16]
17. [17]
    Section 7.4 (2) of the Police Act provided that:

An officer is liable to disciplinary action in respect of the officer’s conduct, which the prescribed officer considers to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations.

18. [18]
    ‘Misconduct’ was defined in section 1.4 of the Police Act as follows:

misconduct means conduct that –

1. (a)
   is disgraceful, improper or unbecoming an officer; or
2. (b)
   shows unfitness to be continue as an officer; or
3. (c)
   does not meet the standards of conduct the community reasonably expects of a police officer.

19. [19]
    Section 7.4(3) of the Police Act provided that:

3. (3)
   Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of the following–

   1. dismissal;
   2. demotion in rank;
   3. reprimand;
   4. reduction in an officer’s level of salary;
   5. forfeiture or deferment of a salary increment of increase;
   6. deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.

20. [20]
    Section 7.4 was not an exhaustive and provided a flexible range of disciplines^[17] that are available to the Tribunal in the sanction decision.^[18] A demotion in rank may be ordered for a defined period.^[19]
21. [21]
    I agree that the proposed sanction is an appropriate order to make in the circumstances because: 

    1. (a)
       The proposed sanction still does not restore the applicant to the paypoint he was at before the findings (which was paypoint 4.52) and still encapsulates a significant demotion of 2.5 years’ duration.   Demotion is a serious sanction which carries with it a significant elements of disgrace and substantial financial consequences.^[20]  The demotion reflected by the proposed sanction in this case reflects the seriousness of the misconduct and promotes the proper purpose of discipline through deterrence.  However, the substantiated misconduct by Mr Young is not as serious as the misconduct the subject of the Tribunal’s decision in Jackson v Deputy Commissioner Gollschewski^[21] wherein an indefinite demotion was ordered. 
    2. (b)
       The applicant has, by his conduct since 1 December 2017 demonstrated that he is currently fit to be a Senior Sergeant of Police, having performed to a high standard and with integrity as a Sergeant since 1 December 2017 and as occasional Acting Senior Sergeant, receiving commendations from superior officers.  The Tribunal held in O'Brien v Assistant Commissioner Taylor & Anor^[22] that current fitness for a higher rank is a factor weighing in favour of demotion for a defined period.
    3. (c)
       Although the misconduct is serious and concerning, the remorse, regret, insight, remedial efforts made since 1 December 2017 and the applicant’s interceding professional conduct are considerable. 
    4. (d)
       The Tribunal is required to impose a sanction that achieves the purpose of a disciplinary proceeding,^[23] which are to protect the public, to uphold ethical standards with the QPS, to promote the reputation of the QPS and to promote and maintain public confidence in the police service, not to punish the officer^[24] and the proposed sanction achieves those purposes.

What of Mr Young’s human rights?

22. [22]
    As required by the Human Rights Act 2019 (Qld) I have had regard to Mr Young’s human rights, including his right to freedom of expression^[25] and the right to not have his reputation unlawfully attacked,^[26] however, in the circumstances I am satisfied that any limitation on these rights is consistent with the proper purpose of maintaining public confidence in the police service and in achieving police discipline.

What is the “correct and preferable” decision? 

23. [23]
    The correct and preferable decision is to vary that part of the sanction decision made by Assistant Commissioner Alastair Dawson on 1 December 2017, by adding an order that, with effect from 1 July 2020, the applicant Lucas Young is restored to the rank of Senior Sergeant at paypoint 4.4 and that he is thereafter to progress according to normal industrial arrangements.
24. [24]
    Otherwise, the decision made by Assistant Commissioner Alastair Dawson on 1 December 2017 with respect to sanctions is confirmed.