Nesterowich v Platz[2018] QCATA 119

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION   

1. [1]
   The appellant was a probationary constable in the Queensland Police Service (QPS).  This is an appeal by him against the decision of the tribunal to strike out the application to review the decision made by the respondent in her position of Acting Assistant Commissioner^[1] to terminate his employment as a probationary officer under s 5.12(4) of the Police Service Administration Act 1990 (Qld) (PSA Act). 
2. [2]
   At first instance, his review application was struck out on the basis that the decision was not a reviewable decision under the Crime and Corruption Act 2001 (Qld) (CC Act).  The application for review was struck out pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).^[2]  The appellant has appealed that decision to this Appeal Tribunal.

Background

3. [3]
   The appellant commenced employment with the QPS as a police recruit on 22 September 2014 and was sworn in and commenced duty as a (probationary) constable on 9 April 2015.^[3]  He was due “to be confirmed on 9 April 2016 upon successful completion of the First Year Constable Program”.^[4]
4. [4]
   The Notice to Show Cause and Make Submissions in relation to Probationary Appointment (Notice), issued to the appellant on 14 June 2016 pursuant to s 5.12(4) of the PSA Act,^[5] alleged that on 4 December 2015 whilst off duty the appellant’s conduct was improper.  The Notice informed the appellant that the conduct was being considered, as well as the appropriate action that ought to be taken in relation to his probation pursuant to s 5.12(4) of the PSA Act.^[6]
5. [5]
   The appellant was advised that, in making a decision as to his probation, it was being considered whether he was a fit and proper person to have his appointment confirmed, and that, if not satisfied that he was a fit and proper person to be confirmed, his employment may be terminated or his period of probation extended.
6. [6]
   Specifically, it was alleged as follows:

That on the 4th day of December 2015 at Fortitude Valley, Brisbane your conduct was improper in that you whilst you were off duty:

1. (a)
   behaved in a manner towards other police officers that was unprofessional, argumentative and unwarranted;
2. (b)
   failed to meet the standards expected of a First Year Constable in the Queensland Police Service;
3. (c)
   failed to meet reasonable standards expected by the general public of Queensland when dealing with police officers.

Further and better particulars:

1. Your off duty behaviour is included under s 4.9 of the Police Service Administration Act 1990.
2. On 4^th December 2015, you initiated contact with three police officers performing general duties at the top of the Brunswick Street Mall in Fortitude Valley, Brisbane.
3. You approached Constable Hannah JANSON and stood very close to her which made her feel immediately uncomfortable.
4. You touched the police radio fitted to Constable JANSON’s load bearing vest at chest level. (Constable JANSON is a female police officer)
5. You offered unwanted operation advice to Constable JANSON in relation to the method of wearing official police equipment.
6. Whilst waiting at the pedestrian crossing, you looked back at the three police officers, smirked and then extended your middle finger towards them.
7. You referred to the three police officers whilst indicating to each one by pointing to them individually and then saying words to the effect “no cause he’s a cunt, she’s a cunt and he’s a cunt.”
8. A strong smell of liquor was detected on your breath at the time of the incident.
9. You were continually rude, argumentative and belittling during the interaction with the three police officers.
10. You have failed in your commitment to the highest ethical standards under the Queensland Public Service Code of Conduct.  In particular, it has not been of the highest ethical standards. You have also failed in your commitment to demonstrating respect for all persons, whether fellow employees, clients or members of the public.
11. You have failed to maintain appropriate standards of personal conduct by virtue of 2012/33 Standard of Practice, Professional Conduct. You have also failed to treat all persons with respect and dignity. You have also inappropriately distracted other members of the Queensland Police Service from carrying out their duties.
12. You have failed to adhere to the Queensland Police Service member’s values as outlined in the Queensland Police Service Strategic Plan 2015-2019. In particular, you have failed to display courage by not doing the right thing, you have not been fair by not treating people with respect and you have failed to display pride by your behaviour as an off-duty Queensland Police Officer.^[7]

7. [7]
   The Notice stated, in bold:

THIS IS NOT A DISCIPLINARY HEARING.  Accordingly, you should be aware that whilst I may form a view in relation to whether you are, or are not, a fit and proper person to be confirmed as a police officer, or may be unable to form that view, this is not a proceeding where you should limit any submissions to this matter only.^[8]  

8. [8]
   On 28 June 2016 and 3 July 2016, the appellant made detailed written submissions in response to the Notice.
9. [9]
   In the Termination Decision of the respondent dated 29 September 2016, it was stated:

After having given careful consideration to the matter and the submissions made by you I am reasonably satisfied that you do not have the potential to discharge the duties of a General Duties Constable and should therefore not be confirmed as a police officer.  As a result, I consider it necessary to terminate your employment with the Queensland Police Service.^[9]

10. [10]
    The respondent stated that she had considered “the criteria that form the basis for a determination of merit for appointment as a police officer outlined in s 5.2(5) and (6) of the [PSA] Act”.^[10]
11. [11]
    Under the heading Findings, the respondent examined four points that she said related to the appellant’s conduct and that would provide clarity on her findings, which were:

1. (1)
   The manner in which you approached Constable JANSON regarding her radio;
2. (2)
   The manner in which you raised your middle finger at Constable GUY;
3. (3)
   The manner in which you called the three officers ‘cunts’; and
4. (4)
   Your demeanour and attitude whilst dealing with these three officers.^[11]

12. [12]
    The respondent then examined each point separately and made findings in relation to them.
13. [13]
    The respondent determined:

…your actions in this matter cause me great concern, notwithstanding that this incident occurred off duty in a private capacity.  Not only were your actions on this occasion public nuisance behaviour, they were directed at your fellow officers who were specifically tasked to preserve peace and good order in the Fortitude Valley Safe Night Precinct. Your actions demonstrated a contempt for organisational values, the obligations imposed on police officers and the community’s expectations of a transparent and accountable police service.

I do not accept that your voluntary intoxication mitigates your actions.  Your behaviour both on and off duty is a reflection on you and your suitability to be a police officer. As you have committed this offence during your probationary period, I must now make a decision as to whether your appointment as a police officer should be confirmed. 

It is imperative for this organisation to function with the highest level of professionalism and to maintain community confidence.  Its members must act with and promote the highest level of honesty and integrity.^[12]

14. [14]
    The respondent then extracted sections from the Standard Practice of Professional Conduct.  The respondent then stated:

Whilst being mindful of the level of your service, the nature of your conduct is significantly concerning.  Section 2.3 of the Police Service Administration Act outlines the ‘functions of service’ and provides that Queensland Police are to preserve peace and good order in all areas of the State. Your conduct has great potential to cause embarrassment for yourself and all members of the Queensland Police Service. 

You have committed an offence of public nuisance against section 6 of the Summary Offences Act 2005 (Qld).  Your actions would not withstand the scrutiny of the Queensland community, you did not ensure compliance with your Oath of Service, Code of Conduct or Queensland Service Policy.  Your behaviour towards your colleagues was inexcusable, unfair and made their job more difficult in having to deal with a sworn member who was both rude and intoxicated.^[13]

15. [15]
    In her decision, the respondent referred to the decision in R v The Commissioner of Police; Ex Parte Boe^[14] where Macrossan J had observed:

It is obviously a consideration of the highest importance that only suitable applicants should be admitted to the Police Force with the powers and discretions which will then apply and fall to be exercised by them… he will not be appointed as a constable unless the Commissioner is satisfied that he is a ‘fit and proper person to appoint’.^[15]

16. [16]
    In referring to Boe’s case, the respondent recognised that the legislative framework had changed since that decision. Ultimately, she said, a determination needs to be made whether a probationary constable meets the standards of a fit and proper person.^[16]
17. [17]
    The appellant sought a review of the respondent’s decision to terminate his employment before QCAT.
18. [18]
    At first instance, the appellant (as applicant) had submitted that the decision by the  respondent was in reality a decision taken in disciplinary action for alleged misconduct which should properly have been brought pursuant to s 7.4 of the PSA Act.  He asserted the decision is a “reviewable decision” under the CC Act, because the respondent had considered an allegation which amounted to an allegation of misconduct against him.^[17]  It is submitted that misconduct is defined in the PSA Act to include conduct that “shows unfitness to be or continue as an officer”.
19. [19]
    At first instance, the learned member concluded that:

… the Commissioner’s power in s 5.12(4) to terminate the employment of an officer on probation is separate and distinct from disciplinary action that may be taken under s 7.4 of the PSA Act.  The Acting Assistant Commissioner was entitled to terminate Mr Nesterowich’s employment under s 5.12(4), and she did so. It follows that the decision was not a reviewable decision and that the application for review should be struck out, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).^[18]

Grounds of the appeal

20. [20]
    Pursuant to s 142 of the QCAT Act, a party to a proceeding may appeal to the Appeal Tribunal against a decision of the tribunal in that proceeding.  It was accepted by the parties that the issue raised in the application was an appeal on a question of law only and as such the appeal was of right and leave was not required.

21. [21]
    The issues identified by the appellant in the appeal broadly stated are:

    1. (a)
       whether, if a power to dismiss a probationary officer is to be exercised  in reliance upon a finding of misconduct, the only power open to the Acting Assistant Commissioner to make an order of dismissal is a power under Part 7 of the PSA Act; and
    2. (b)
       whether, if the finding of misconduct is made under Part 5 of the PSA Act and the termination power exercised, this is “a decision made in relation to an allegation of corruption” and therefore reviewable under s 219BA(1)(a) of the CC Act.^[19] 

Statutory framework under the PSA Act

22. [22]
    Part 5 of the PSA Act deals with the appointment of personnel within the QPS as well as the terms and conditions for their employment.
23. [23]
    Section 5.2 of the PSA Act requires the appointment of police recruits and police officers to be made by “fair and equitable procedures” on the basis of “merit” and so as to “prevent unjust discrimination”.^[20]
24. [24]
    The “merit” of an officer and the statutory requirements to be met for service as an officer are set out in s 5.2(5) of the PSA Act as follows:

5. For the purposes of this section merit of an officer comprises –

1. the integrity, diligence and good conduct of the officer; and
2. the potential of the officer to discharge the duties of the position in question; and
3. the industry shown by the officer in performance of the duties of office in the course of the officer’s career; and
4. the physical and mental fitness of the officer to perform the duties of the position in question.

25. [25]
    Further detailed factors are stated in s 5.2(6):

6. For the purpose of determining the potential of an officer to discharge the duties of a position the following factors must be taken into account –

1. the performance of duties of office in the course of the officer’s career;
2. the range of practical experience of the officer in the service or outside the service;
3. the ability, aptitude, skill, knowledge and experience determined by the commissioner to be necessary for the proper performance of the duties of the position in question;
4. any relevant academic, professional or trade qualifications of the officer.

26. [26]
    The conditions of employment of police recruits are contained in s 5.11.  Section 5.12 deals with appointment on probation.  So far as relevant to this appeal, s 5.12 of the PSA Act provides:

1. This section does not apply in relation to an appointment as an officer made on a contract basis.
2. An appointment as an officer of a person who was not an officer immediately before the appointment is an appointment on probation –

1. for a period not less than 12 months determined by the commissioner; or
2. in the absence of such a determination, for a period of 12 months.

3. Unless the position as an officer is advertised in the Queensland Police Gazette as one to which appointment is to be made without a period of probation, an appointment of an officer to a position on promotion is an appointment on probation –

1. for a period not less than 6 months determined by the commissioner; or
2. in the absence of such a determination – for a period of 6 months.

4. The commissioner may –

1. in respect of an appointee referred to in subsection (2) –

1. at any time during the initial period of probation or during any extension of a period of probation, terminate the employment of the appointee; or
2. at the end of any period of probation, confirm the appointment, extend or further extend the period of probation or terminate the employment of the appointee; or

…

27. [27]
    Subsection 5.12 is directed to newly appointed officers and officers appointed to positions on promotion in the QPS.  So far as relevant, s 5.12(2) requires newly appointed officers to serve an “initial period of probation”.  The section gives to the Commissioner a number of discretionary powers in relation to such officers, including:

    1. (a)
       extending the period of probation beyond the 12 months statutory minimum;
    2. (b)
       at any time during the initial or extended period of probation, terminating the employment of an appointee;
    3. (c)
       confirming an appointment at the end of any probationary period; or
    4. (d)
       further extending the probationary period as there is no statutory limit provided for the extension.^[21]
28. [28]
    Section 5 contains no express review rights.  There is no requirement, following the making of a decision to terminate, for the giving by the Commissioner of a notice pursuant to s 157(2) of the QCAT Act which requires notification of the decision or finding, the reasons for it and the right to have the decision or finding reviewed by QCAT.
29. [29]
    Part 7 of the PSA Act is concerned with “internal command and discipline”.  Section 7.4 provides:

7.4  Disciplinary action

1. In this section –

 officer, in relation to a person liable to disciplinary action, includes a police recruit.

 prescribed officer means an officer authorised by the regulations to take disciplinary action in the circumstances of any case in question.

 QCAT information notice means a notice complying with the QCAT Act, section 157(2).

2. 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.

(2A) If the prescribed officer –

1. decides an allegation of misconduct brought against the officer; or
2. when deciding an allegation of breach of discipline brought against the officer, finds that misconduct is proved against the officer;

the commissioner must 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.

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 or increase;
6. deduction from an officer’s salary payment of a sum equivalent to a fine of 2 penalty units.

4. Every order made by way of disciplinary action takes effect in law and is to be given effect.
5. To remove any doubt, it is declared that a reference in the QCAT Act, section 157(2) to a decision includes a reference to a finding.

30. [30]
    Section 1.4 of the PSA Act defines the following words or expressions used within s 7.4 as follows:

Disciplinary action means action taken for misconduct, corrupt conduct or a breach of discipline.^[22]

Breach of discipline means a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct.

Misconduct means conduct that –

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

31. [31]
    The Police Service (Discipline) Regulations 1990 (Qld) further define the disciplinary regime under the PSA Act, including the various disciplinary powers of the Commissioner^[23] and the grounds for disciplinary action.

Definition of reviewable decision

32. [32]
    Where a decision is made by a prescribed officer under Part 7 of the PSA in which the prescribed officer decides an allegation of misconduct brought against an officer or finds misconduct when deciding an allegation of breach of discipline, there is a right to a merits review by QCAT.  The enabling act permitting the merit’s review to QCAT is the CC Act. 
33. [33]
    The CC Act provides that the Crime and Corruption Commission and a prescribed person against whom the decision was made may apply for a review of a reviewable decision and QCAT may determine the disciplinary proceedings.^[24]  The CC Act defines reviewable decision, as follows:

1. A reviewable decision means –

1. 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
2. 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.

2. In this section –

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

disciplinary declaration means a disciplinary declaration made under –

1. the Public Service Act 2008, section 188; or
2. 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 prescribed person against whom a disciplinary declaration has been made; or
2. in relation to an appeal started by the commission under section 219G –

1. a prescribed person mentioned in paragraph (a); or
2. 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.^[25]

34. [34]
    For the CC Act, corruption is defined as “corrupt conduct or police misconduct”.^[26]
35. [35]
    Police misconduct in the CC Act largely reflects the definition of “misconduct” in the PSA Act and is defined as:

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

1. is disgraceful, improper or unbecoming a police officer; or
2. shows unfitness to be or continue as a police officer; or
3. does not meet the standard of conduct the community reasonably expects of a police officer.^[27]

36. [36]
    For present purposes, it is sufficient to note that a prescribed person includes a “member of the police service”.^[28]  Section 2.2 of the PSA states that members of the QPS are police officers, recruits and staff members.
37. [37]
    The additional limiting words in the definition of prescribed person in s 219BA are not relevant to the circumstances here.

What constitutes a reviewable decision under s 219BA of the CC Act

38. [38]
    It is accepted that there are two sources of powers available to a Commissioner to dismiss a probationary police officer: the first is a power to terminate an officer’s appointment during a period of probation under section 5.12 and the second is a power to dismiss an officer found to have committed misconduct under section 7.4.
39. [39]
    Further, it is accepted that following the exercise of the power to dismiss with respect to a probationary officer under s 5.12, there is no express right of review of the decision.  Likewise, in contrast, it is accepted in relation to a decision to dismiss involving an allegation of misconduct or a finding of misconduct under s 7.4, there is an automatic right of review to QCAT. 
40. [40]
    The appellant contended that where the power to dismiss is being exercised in reliance upon a finding of misconduct, the only source of power to dismiss is s 7.4 of the PSA Act.  It was submitted that, in the present case, given the specific powers within the disciplinary action provisions of s 7.4, the respondent must be taken to have actually proceeded under that section and not under the more general provisions of s 5.12.  It was submitted that the actions of the respondent in this case were in reality a proceeding pursuant to s 7.4.
41. [41]
    In oral submissions, counsel for the appellant maintained that s 5.12 still has work to do in relation to minor matters – lateness, tardiness with paperwork, failure to wear correctly the uniform and accoutrements, failure to exhibit levels of physical fitness as well as competency and performance requirements under the probationary program.  Counsel submitted that s 5.12 has no further work to do in relation to more serious matters; that is, matters involving misconduct.
42. [42]
    Counsel for the respondent, on the other hand, submitted that a like argument as contended for on behalf of the appellant was advanced and rejected by McMurdo JA in Irwin v Stewart (Commissioner of Police) & Anor.^[29]
43. [43]
    In Irwin, a senior constable in the QPS was issued a Notice of Temporary Redeployment and Directions.^[30]  In a second notification to the senior constable, the Acting Assistant Commissioner wrote that he was considering transferring the senior constable to another station and invited comment from him.^[31] Each of the communications expressed the Acting Assistant Commissioner’s concerns that the senior constable had engaged in misconduct based on the large number of complaints from the public alleging excessive use of force by him.^[32]
44. [44]
    The senior constable commenced proceedings seeking declaratory relief arguing that the redeployment direction and foreshadowed transfer were for the purpose of disciplining him for misconduct.^[33] As such, he argued that the Acting Assistant Commissioner’s powers should be exercised within the statutory regime for the discipline of officers provided in Part 7 of the PSA Act.^[34]  It was said that the principle, as described by McHugh J in Saraswati v The Queen^[35] that “a statutory power expressed in general form, is not to be construed so as to avoid any condition or limitation placed on the exercise of a specific power” applied.
45. [45]
    In Saraswati, McHugh J cited with approval the passage from the judgment of Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, where it was said:

When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.^[36]

46. [46]
    In Irwin, the court found that the relevant notice made no allegation of misconduct and there was no finding of misconduct in the documentation provided to the senior constable by the Acting Assistant Commissioner.^[37]  The court, in rejecting the arguments of the senior constable, said:

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.^[38]

47. [47]
    Likewise here, the respondent in her formal Notice made no explicit allegation of misconduct to be answered by the appellant nor in the Termination Decision did she make any express finding that misconduct had been examined or was substantiated.
48. [48]
    Section 5.12 does not qualify the exercise of the power given to terminate “at any time” with reasons such as those suggested by counsel for the appellant.  Subject to the principles of natural justice, appropriate notice of issues to be examined and the opportunity provided to the officer complained of to respond, all elements met in the case of the appellant, the power to terminate “at any time” is unconfined. There is no reason that the conduct required for termination under s 5.12 should be circumscribed.  The discretion to terminate “at any time” is unfettered and to attempt to qualify or confine whatever the circumstances, inadequacies or deficient behaviour might be that leads to termination of an officer on probation is to fetter that discretion.
49. [49]
    As noted by the learned member, the power to terminate under s 5.12 “at any time” is consistent with the Commissioner’s responsibility for the efficient and proper administration, management and functioning of the police service.^[39]  It is a power distinguishable from the s 7.4 disciplinary action.   Section 5.12 is the specific section designed so that the Commissioner^[40] can exercise the power and responsibility to “weed out” officers in respect of whom there is any reasonable doubt as to their fitness for the role.^[41]  As noted by the learned Member, the Commissioner is entitled “to conclude for any reason/s that arise during that initial probation period that the inexperienced officer is not suitable to continue in the role”.^[42]
50. [50]
    To come within s 7.4 disciplinary action there has to be an express allegation or finding of misconduct,^[43] which there was not in this case.  The Appeal Tribunal rejects the first submission made on behalf of the appellant.
51. [51]
    The second argument made on behalf of the appellant was that s 219BA gave a general power of review following any determination as to an allegation of misconduct, irrespective of the source of power.  This submission faces the same factual reality as the first argument, namely, that there was no decision in relation to a disciplinary allegation of corruption.  That the show cause was a disciplinary hearing was specifically disclaimed. 
52. [52]
    Importantly, there was no determination of misconduct by the respondent.  The respondent ultimately determined that the appellant “did not have the potential to discharge the duties of a general duties constable”.^[44]  The Appeal Tribunal rejects the appellant’s second argument.

Conclusion

53. [53]
    The result is that there is no jurisdiction within the Appeal Tribunal to review the decision of the Acting Assistant Commissioner.
54. [54]
    Pursuant to s 146(a) of the QCAT Act the decision to strike out the review application of Kurt Alexander Nesterowich is confirmed.