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Colebourne v State of Queensland (Queensland Police Service)[2022] QIRC 18

Colebourne v State of Queensland (Queensland Police Service)[2022] QIRC 18

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018

PARTIES: 

Colebourne, Janette

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2021/422

PROCEEDING:

Public Service Appeal - Fair treatment decision

DELIVERED ON:

28 January 2022

HEARING DATE:

7 January 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant employed by the State of Queensland in the Queensland Police Service in the position of Administration Officer at the Queensland Police Academy – Commissioner of the Queensland Police Service issued direction on 7 September 2021 mandating that certain employees, unless exempted, must receive a COVID–19 vaccine – appellant applied for exemption from complying with requirement to be vaccinated – decision not granting exemption – appellant suspended with remuneration – subsequent decision to suspend appellant without remuneration – appellant, pursuant to ch 7 of the Public Service Act 2008, appealed against the decision to suspend the appellant without remuneration – whether decision to suspend appellant without remuneration was fair and reasonable – decision to suspend appellant without remuneration fair and reasonable – decision maker considered all relevant factors – decision appealed against confirmed

STATUTES – SUBORDINATE LEGISLATION – CONSTRUCTION – whether on the construction of Directive: 16/20 – Suspension directive, a person deciding whether or not to suspend a public service employee pursuant to s 137(4) of the Public Service Act 2008 without remuneration was required to consider each of the matters referred to in sub-cl 6.3(a) to (c) of that Directive – application of principles of construction of statutory instruments – construction of statutory instruments conferring discretion – all of the factors referred to in sub-cl 6.3(a) to (c) of Directive: 16/20 – Suspension directive had to be considered – cl 6.3 of Directive: 16/20 – Suspension directive did not preclude consideration of other factors determined by implication from the subject matter, scope and purpose of that Directive

LEGISLATION:

Acts Interpretation Act 1954, s 14A and s 14B

Directive: 16/20 - Suspension directive, cl 6

Human Rights Act 2019, s 13

Industrial Relations Act 2016, s 562B and s 562C

Police Service Administration Act 1990, s 4.8

Public Service Act 2008, s 53, s 137 and s 137A

Statutory Instruments Act 1992, s 7, s 14 and s 15

CASES:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

Gilmore v Waddell & Ors [2019] QSC 170

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532

APPEARANCES:

Mr M. Thomas and Mr K. McKay of Together Queensland, Industrial Union of Employees as agent for the Appellant.

Mr G. Patterson and Ms A. Ireland of the State of Queensland (Queensland Police Service) for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    This decision assumes familiarity with the earlier decision I have made in Colebourne v State of Queensland (Queensland Police Service) (No. 2) ('Colebourne No. 2').[1] This decision should be read with paragraphs [1] to [36] of Colebourne No. 2.
  1. [2]
    By notice dated 3 December 2021, Acting Assistant Commissioner Virginia Nelson, Ethical Standards Command, Queensland Police Service ('the Service'), made a decision suspending Ms Colebourne without remuneration as from midnight on 10 December 2021 until 10 June 2022 unless cancelled earlier ('the suspension without remuneration decision').
  1. [3]
    By appeal notice filed on 9 December 2021, Ms Colebourne, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the suspension without remuneration decision.
  1. [4]
    The issue for my determination is whether the suspension without remuneration decision was fair and reasonable.
  1. [5]
    For the reasons given below, the suspension without remuneration decision was fair and reasonable.

The relevant facts

The show cause notice

  1. [6]
    By notice dated 20 October 2021, Acting Assistant Commissioner Nelson invited Ms Colebourne to show cause as to whether or not she should be suspended without remuneration ('the show cause notice'). Acting Assistant Commissioner Nelson stated:

Show cause why suspension should not be without pay:Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18

Given the nature and seriousness of your alleged conduct, the direct conflict between the alleged conduct and the functions of the Service and the public interest in protecting the reputation of the Service, consideration is also being given to whether or not you should be suspended without remuneration pursuant to ss 137(1)(b) and (4) of the PS Act on the basis that the chief executive (or their delegate) reasonably believes you are liable to discipline under a disciplinary law.

However, no decision has been made or will be made in relation to suspension without remuneration until you have had the opportunity to formally respond. Accordingly, you are invited to respond in writing showing cause why you should not be suspended from duty without remuneration on the basis that the chief executive (or their delegate) reasonably believes you are liable to discipline under a disciplinary law.

Your response should provide any information or explanation that you believe could be relevant. I would be particularly assisted by submissions addressing the following considerations:

  • The nature and objective seriousness of the alleged conduct;
  • Any steps you have taken to become vaccinated and provide evidence of your vaccination to your supervisor;
  • Any conflict between the alleged conduct and the functions and responsibilities of the Service;
  • Any relevant disciplinary history;
  • The likely period of time that will pass before any relevant disciplinary investigations or proceedings will conclude;
  • Your personal interests for maintaining your normal remuneration; and
  • Any relevant public interest considerations, including the public interest in maintaining financial accountability and public trust and confidence in and the reputation of the Service.

The above considerations are not exhaustive and you are welcome to provide any information which you consider relevant to my determination.

…

Human rights:

…

I consider the decision to ask you to show cause why you should not be suspended without pay is reasonable and justified by reference to a slightly different purpose as follows:

  • The Service is a publicly funded organisation with statutory financial accountability obligations. Further, there is a public interest in maintaining the reputation of, and the public's trust in, the Service and the public service more generally, including in respect to compliance with the Service's financial accountability obligations.
  • Suspending you and asking you to show cause why you should not be suspended without pay will help to maintain financial accountability and the reputation of, and the public's trust in, the Service. It will also help to minimise the potential risk of noncompliance with the Service's financial accountability obligations, and/or the potential risk of compromising the reputation of the Service, arising from you continuing to be paid normal remuneration whilst suspended from duty and while the allegation against you remains outstanding.
  • There is no less restrictive way to achieve this purpose, In particular. the alternative of not initiating a show cause process to determine whether or not you should be suspended without pay would not be as effective in maintaining financial accountability and the reputation of, and public trust in, the Service.
  • Ultimately, I consider the importance of maintaining financial accountability and public trust in the Service outweighs the impact on your human rights, especially taking into account that a decision as to whether or not you should be suspended without pay will not be made until you have had an opportunity to respond to the show cause notice and, if you choose to do so, seek advice from your union or a legal or other advisor.

Ms Colebourne's response

  1. [7]
    It is not in dispute that Ms Colebourne provided a response to the show cause notice. Ms Colebourne did not annex to any of her submissions a copy of her response.
  1. [8]
    However, in the suspension without remuneration decision, Acting Assistant Commissioner Nelson set out a summary of Ms Colebourne's response. That part of the suspension without remuneration decision provided:

On 2 November 2021, a response to the Notice was received from you via email.

The response includes the following:

  • There are ongoing proceedings in the Supreme Court of Queensland.
  • You state you had a reasonable excuse to fail to comply with the Direction to receive the vaccination. You state that you were unable to provide informed and valid consent.
  • You have concerns in relation to the safety, efficacy and long-term effects of the vaccinations currently available.
  • You state you have an outstanding Workcover Claim with a diagnosis of a disability for which you are currently totally incapacitated.
  • You applied and were declined an exemption.
  • You state you can perform your duties remotely.
  • You have lodged a grievance about your denied application for exemption with the Queensland Industrial Relations Commission (QIRC).
  • You state that the VEC application for exemption process remains unfinalized until your Grievance is heard and you should not be the subject of allegations of failure to comply with the Commissioners Direction until the matter is finalised before the QIRC.
  • You state that no proper risk assessment has been presented to members of the QPS.
  • You suggest alternative control measures be undertaken.
  • You state you are experiencing severe anxiety in relation to being coerced and forced into receiving the vaccination. Further, you state you are experiencing psychological distress, enhanced by your suspension and the threat of losing your remuneration and being unable to provide food and shelter for your family.
  • You have 18 years service and are not aware of being subject to a complaint or adverse comments.
  • You state comments in news articles show a bias in this matter
  • You support your disabled husband and are the sole income earner in your household.
  • You cite instances where QPS members have remained suspended on remuneration for considerable periods of time.
  • You state that any premature action by the Commissioner in financially punishing members prior to the outcome of court proceedings would be embarrassing to the Commissioner and damaging to the reputation of the QPS.
  • You provided antecedents including mortgage payments, living expenses, fuel and health insurance expenses. You state that removal of remuneration would cause immediate hardship, including an inability to meet your mortgage repayments.
  • You suggest the continuation of remuneration until you can find and be approved for secondary employment would be just and fair.

The suspension without remuneration decision

  1. [9]
    Acting Assistant Commissioner Nelson gave detailed reasons for the suspension without remuneration decision. They were:

In accordance with section 137(1)(b) of the Act, I reasonably believe that you are liable to discipline under a disciplinary law, namely Chapter 6 of the Act, in relation to the above allegation.

I confirm that no adverse finding or determination has been made against you in relation to the allegation at this time.

Having considered all the material before me, in accordance with section 137(4)(b) of the Act, I consider it is not appropriate for you to be entitled to normal remuneration during your suspension, having regard to the nature of the discipline to which I believe you are liable for the following reasons:

  1. (i)
    Under section 4.8 of Police Service Administration Act 1990 (PSA Act) the Commissioner is responsible for (amongst other things) the efficient and proper administration, management and functioning of the Queensland Police Service (Service) in accordance with law. Relevantly, this includes compliance with the Work Health and Safety Act 2011 (WHS Act) which provides that the Commissioner has a duty, so far as is reasonably practicable, to ensure the health and safety of members and other people with whom members interact when performing the functions of the Service (see s 19).
  1. (ii)
    The allegation against you is very serious and in direct conflict with the functions, responsibilities and organisational values of the Service, the role and responsibilities of a member of the Service and community expectations. Your alleged failure to comply with the Direction impacts the Commissioner's ability to fulfil the Commissioner's prescribed responsibility defined in section 4.8 of the PSA Act and the Commissioner's obligations under the WHS Act.
  1. (iii)
    The Service is a publicly funded organisation with statutory financial accountability obligations, including to use public resources in a responsible and effective manner. There is also a public interest in maintaining the reputation of and the public's trust in the Service and the public service more generally, including in respect to its compliance with its financial accountability obligations. This is especially important in the current economic climate and in light of the seriousness of the allegation against you. I do not consider it to be an appropriate use of public resources, or in the public interest, for you to remain suspended with remuneration while the allegation against you remains outstanding.
  1. (iv)
    In relation to your response, I note in particular:
  1. (a)
    I am satisfied you have been afforded natural justice. Relevantly, the Notice provided details of the action I was considering taking and the relevant considerations in relation to that decision and afforded you an opportunity to show cause why you should not be suspended without pay before any such decision was made. Subsequently, you provided your response to the Notice which I have considered in making my decision regarding your suspension without remuneration. On this basis I am satisfied that you have been afforded natural justice in relation to my decision.
  1. (b)
    I note your submissions concerning the seriousness of the allegation you are facing and that 'it is simply heavy handed, unfair and unreasonable to suspend without pay....'. The failure (and ongoing failure) to obey a Direction of the Commissioner is very serious and in direct conflict with the functions, responsibilities and organisational values of the Service, the functions of a police officer and community expectations. This is especially so, given the explicit Direction was required to be given to all members of Service in unprecedented circumstance being a public health emergency declared on 29 January 2020 for the whole of Queensland, under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland. The risk presented by COVID-19 is heightened by the increased transmissibility and secondary attack rate of the delta variant its increased virulence and severity of disease and the reduction in neutralising antibody activity. As articulated in the Direction, in an extreme scenario, this risk could reduce the availability of police officers and staff members for deployment and threaten the ability of the Queensland Police Service to serve the community.
  1. (c)
    I note your submissions as to the effect a decision to suspend you without remuneration might have on your private interests, namely that removal of remuneration would cause immediate hardship, including an inability to meet your mortgage repayments. I have carefully considered your submissions. However, while I acknowledge your situation, I am not persuaded your private interests outweigh those of the Service and the public interest in maintaining the reputation of, and the public's trust in, the Service and the public service more generally. including in respect to compliance with the Service's financial accountability obligations, particularly given the seriousness of the allegation against you.
  1. (d)
    I note your submissions concerning the safety and efficacy of the COVID‑19 vaccines. Further, that you believe you are being coerced into taking the vaccine and are unable to give informed and valid consent. These are not issues for me to determine in the discretionary exercise I have in this matter. However, one of the considerations I do have is to assess the strength of evidence in the allegations against you, and I find the case against you appears to be compelling.
  1. (e)
    I note your submission that comments attributed to me in newspaper articles show a bias towards your application. The comments in the articles merely indicate my support for the Commissioner and the fact that members who fail to obey a direction may be sanctioned. I do not accept I have any bias in the exercise of my discretion in this matter.
  1. (f)
    I note you are contesting the decision of the Vaccination Exemption Committee to deny you application. I further note you commenced grievance proceedings in the Queensland Industrial Relations Commission and were unsuccessful in obtaining a stay of that decision.
  1. (g)
    I note your submission concerning your ability to work from home and that you dispute point 34 (c) of the EBN. While are [sic] note you were able to work from home at various times, this is not a solution which can be maintained on an ongoing basis. Both before your suspension with pay, and before determining to suspend you without pay, I gave careful consideration to all reasonable alternatives. On both occasions I have determined that in the circumstances suspension is the appropriate option.
  1. (h)
    I note you state you are, 'experiencing severe anxiety...' which 'has been further enhanced by my suspension...'. As you were previously advised, a Senior Psychologist/Social Worker is available to all Service employees. I encourage you to reach out for assistance through your contact officer or via the QPS internet (https:wellbeing.ourpeoplematter.com.au).
  1. (v)
    Due to the nature and seriousness of your alleged conduct I consider your continued suspension with remuneration would be inappropriate and inconsistent with the public interest. In order to protect the reputation of the Service and being mindful of the efficient and proper administration, management and functioning of the Service I consider it is necessary to discontinue your remuneration. As such, I find you have not shown cause why your suspension should not be without remuneration.

In accordance with sections 137(1)(b) and 137(4) of the Act and the Human Resource Delegations and Approval Authorities Schedule you are hereby suspended from duty without remuneration effective from midnight on 10 December 2021 until 10 June 2022, unless cancelled earlier.

…

Human rights

I consider that my decision to suspend you without remuneration may limit your right of equal access to the public service and your right to property (which might include remuneration). Because my decision enforces the Direction, it also limits human rights related to autonomy and bodily integrity, including the right not to receive medical treatment without consent and the right to privacy. Because your reason for allegedly failing to comply with the Direction may be based on a conscientious belief, my decision may also limit your right to equality and non-discrimination, and freedom of thought, conscience and belief.

However, I consider these limits on human rights are reasonable and justified by the need to ensure compliance with the Direction, as follows:

  • The purpose of ensuring compliance with the Direction is to protect the health and safety of QPS employees and members of the public with whom members come into contact.
  • Your continued suspension will help to achieve that purpose because it will mean you do not present a risk of transmitting COVID-19 in the workplace.
  • Alternatives such as a temporary transfer or another alternative working arrangement have been considered. However, because of the nature of your role and your location and in consideration of the safety of the workplace, the Service's workforce, and the safety of the community, suitable meaningful alternative duties are not available.
  • It is a serious thing to place employment consequences on a person's exercise of their dignity and autonomy to make decisions about their body. However, the risks posed by COVID‑19 to the Service, its members and the broader community are also very serious. Ultimately, I consider the importance of ensuring the health and safety objective outweighs the impacts on your human rights.

I consider the decision that your suspension should now be without remuneration is reasonable and justified by reference to a slightly different purpose as follows:

  • As detailed above, the Service is a publicly funded organisation with statutory financial accountability obligations. Further, there is a public interest in maintaining the reputation of, and the public's trust in, the Service and the public service more generally, including in respect to compliance with the Service's financial accountability obligations.
  • Suspending you without remuneration will help to maintain financial accountability and the reputation of, and the public's trust in, the Service. It will also help to minimise the potential risk of noncompliance with the Service's financial accountability obligations, and/or the potential risk of compromising the reputation of the Service, arising from you continuing to be remunerated while suspended from duty and while the allegation against you remains outstanding.
  • There is no less restrictive way to achieve this purpose. In particular, the alternative of you continuing to be suspended with remuneration would not be as effective in maintaining financial accountability and the reputation of, and public trust in, the Service.
  • Ultimately, I consider the importance of maintaining financial accountability and public trust in the Service outweighs the impact on your human rights, especially taking into account that the Notice afforded you the opportunity to show cause notice [sic] why you should not be suspended without salary and allowance, and afforded you the opportunity to seek advice from your union or a legal or other advisor, if you choose to do so.

Accordingly, I consider the decision to suspend you without remuneration is compatible with human rights under the Human Rights Act 2019.

The relevant provisions of the Public Service Act 2008

  1. [10]
    Section 137 of the PS Act prescribes the circumstances by which a public service employee may be suspended from duty.
  1. [11]
    Relevantly, s 137(1)(b) of the PS Act provides that the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.
  1. [12]
    Section 137(4) of the PS Act provides that a public service employee is entitled to normal remuneration during a suspension unless:
  • the person is suspended under s 137(1)(b) of the PS Act; and
  • the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [13]
    Section 137(9) of the PS Act provides that in suspending a public service employee under s 137, the chief executive must comply with the principles of natural justice, the PS Act and '… the directive made under section 137A.'
  1. [14]
    The directive made under s 137A of the PS Act is Directive: 16/20 - Suspension directive ('the Directive').

Ms Colebourne's submissions

  1. [15]
    In written submissions, Ms Colebourne contended that:
  • the meaning of the phrase 'fair and reasonable' in s 562B(3) of the Industrial Relations Act 2016 ('the IR Act') should be construed by having regard to the considerations of when a decision would not meet the legal standard of reasonableness;[2]
  • Acting Assistant Commissioner Nelson erred in law in making the suspension without remuneration decision because the Acting Assistant Commissioner misconstrued sub-cl 6.3(c) of the Directive by considering the phrase '… the public interest of the employee remaining on suspension with remuneration' to simply mean the 'public interest' because the 'default position' under the PS Act was suspension on remuneration and considerations of maintenance and compliance with the Service's financial obligations were irrelevant;[3]
  • the suspension without remuneration decision was incompatible with her human rights, the requirements of which are set out in s 13 of the Human Rights Act 2019, because the decision was made to leverage compliance with Direction No. 12;[4]
  • the exercise of the power to suspend without remuneration was an abuse of power in bad faith because the threat to suspend without remuneration:
  • –was part of a scheme to compel compliance with Direction No. 12 through economic coercion; and
  • –was being used as impermissible punishment and/or a step in the disciplinary process;[5] and
  • Acting Assistant Commissioner Nelson failed to take into account the mandatory consideration prescribed by sub-cl 6.3(c) of the Directive.[6]
  1. [16]
    In oral submissions, Ms Colebourne contended that:
  • because cl 6.3 of the Directive provided that the chief executive '… is to consider' the matters in sub-cls 6(a) to (c) and that the phrase 'but is not limited to' is not included, the factors referred to in sub-cls 6(a) to (c) comprise an exhaustive list of considerations;
  • Acting Assistant Commissioner Nelson:
  • –did not consider the factors contained in sub-cl 6.3(b) and (c);
  • –in respect of sub-cl 6.3(c), did not make references to the 'public interest' in relation to the public interest of the employee remaining on suspension with remuneration;
  • –made the decision without regard to a Guide published by the Public Service Commission that provided guidance about when suspension without remuneration should be considered; and
  • –placed significant weight on the factors of the efficient and proper administration, management and function of the Service, the Service's reputation, the public's trust in the Service and the public service, financial accountability and the appropriate use of resources in the current economic environment, which was more than the weight placed on the factors referred to in cl 6.3 of the Directive; and
  • the decision was made for an improper purpose in that Acting Assistant Commissioner Nelson stated the decision to suspend without remuneration enforced and ensured compliance with Direction No. 12.

The Service's submissions

  1. [17]
    In written and oral submissions, the Service contended that:
  • Acting Assistant Commissioner Nelson had complied with the Directive;
  • on the proper construction of cl 6.3 of the Directive:
  • –the reference to the word 'includes' in cl 6.3 of the Directive means that the matters referred to in sub-cls 6.3(a) to (c) are neither a definitive nor and exhaustive list of factors, such that Acting Assistant Commissioner Nelson could take into account factors beyond those referred to in sub‑cls 6.3(a) to (c);[7]
  • –a decision maker has to consider the factors referred to in sub-cls 6.3(a) to (c) of the Directive;
  • –sub-clause 6.3(c) of the Directive, properly construed, requires a decision maker to take into account public interest considerations beyond that of an employee remaining suspended with remuneration, including the public interest of the agency, the financial implications of the employee remaining suspended with remuneration and the reputation of the Service; and
  • –clause 6.3 of the Directive does not set out the weight a decision maker must give to each of the factors contained in that provision and the weight to be given is to be that decided by the decision maker;
  • while Acting Assistant Commissioner Nelson did not refer to the factor referred to in sub‑cl 6.3(b) of the Directive, that did not render the decision, overall, to be not fair and reasonable;
  • Acting Assistant Commissioner Nelson, in making the decision, only considered relevant matters, including matters that went to the public interest, namely, the efficient and proper administration, management and function of the Service, maintaining the reputation of the Service, the public's trust in the Service, financial accountability and the appropriate use of resources in the current economic environment;[8]
  • the decision to suspend without remuneration was based on the serious and complete disregard of Ms Colebourne to a lawful direction issued by the Service and the potential ramifications in not complying with Direction No. 12, the lawfulness of which was confirmed by a Full Bench of the Commission in Brasell‑Dellow & Ors v State of Queensland (Queensland Police Service) & Ors;[9]
  • the Service observed the principles of natural justice in making the decision to suspend Ms Colebourne without remuneration;[10] and
  • the decision to suspend without remuneration was fair and reasonable when regard is had to the principles espoused in Radev v State of Queensland (Queensland Police Service).[11]
  1. [18]
    Finally, it was submitted that the suspension without remuneration decision was not made for an improper purpose, namely, to compel Ms Colebourne to comply with Direction No. 12. It was submitted that the reasons why Ms Colebourne was suspended without remuneration was set out in the reasons for decision given by Acting Assistant Commissioner Nelson.

The suspension without remuneration decision was fair and reasonable

The meaning of the phrase 'fair and reasonable' in s 562B(3) of the IR Act

  1. [19]
    I addressed these same submissions by Ms Colebourne in Colebourne No. 2.
  1. [20]
    For the reasons given in paragraphs [10] to [25] of Colebourne No. 2, I do not accept these submissions.

Did Acting Assistant Commissioner Nelson take into account all the matters she was required to in making the suspension without remuneration decision?

  1. [21]
    The submissions made by Ms Colebourne require consideration of the principles that apply in respect of the construction of a statute that confers discretion on a decision maker.
  1. [22]
    In referring to these principles, I have not lost sight of the fact that the function I am performing in this appeal, in reviewing the suspension without remuneration decision, is to determine whether that decision was fair and reasonable.
  1. [23]
    The factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.[12]
  1. [24]
    If the factors the decision maker is bound to consider are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.[13]
  1. [25]
    Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard.[14]
  1. [26]
    In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker (not a court in exercising judicial power in judicially reviewing the decision) to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[15]

What matters did Acting Assistant Commissioner Nelson have to consider?

Section 137(4)(a) of the PS Act

  1. [27]
    First, by virtue of the combined effect of s 137(1)(b) and s 137(4)(a) of the PS Act, Acting Assistant Commissioner Nelson had to reasonably believe that Ms Colebourne was liable for discipline under a disciplinary law.
  1. [28]
    When a statute prescribes that there must be reasonable grounds for a state of mind, including suspicion or belief, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[16]
  1. [29]
    Acting Assistant Commissioner Nelson stated that she reasonably believed that Ms Colebourne was liable to discipline under a disciplinary law in relation to the allegations that she:
  • failed to comply with Direction No. 12, namely, that she receive at least one dose of a COVID-19 vaccine by 4 October 2021; and
  • failed to provide evidence of such vaccination as required by Direction No. 12.[17]
  1. [30]
    Clearly, on the facts before Acting Assistant Commissioner Nelson, Ms Colebourne had refused and was refusing to comply with a lawful direction given to her by the Commissioner in that she was not complying with the requirements under Direction No. 12. They were facts sufficient to induce, in the mind of Acting Assistant Commissioner Nelson, that there was a reasonable belief that Ms Colebourne was liable to discipline under a disciplinary law.

Section 137(4)(b) of the PS Act

  1. [31]
    Secondly, pursuant to s 137(4)(b) of the PS Act, Acting Assistant Commissioner Nelson had to consider that it was not appropriate for Ms Colebourne to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which she (Acting Assistant Commissioner Nelson) believed Ms Colebourne was liable.
  1. [32]
    Having regard to the suspension without remuneration decision, Acting Assistant Commissioner Nelson did consider the nature of the discipline to which she believed Ms Colebourne was liable. In considering this matter, Acting Assistant Commissioner Nelson referred to:
  • the Commissioner's responsibility under s 4.8 of the Police Service Administration Act 1990, for the efficient and proper administration, management and functioning of the Service, including the Commissioner's duty, pursuant to the Work Health and Safety Act 2011, to ensure the health and safety of members and other people with whom members interact when performing the functions of the Service;
  • the fact that the allegation against Ms Colebourne was very serious and her (Ms Colebourne's) alleged failure to comply with Direction No. 12 impacted on the Commissioner's ability to fulfil the Commissioner's responsibilities referred to above; and
  • the public interest in using public resources in a responsible and effective manner, maintaining the reputation of and the public's trust in the Service and the public service more generally, including in respect to the Service's compliance with its financial accountability obligations, which was said to be especially important in the current economic climate and in light of the seriousness of the allegation against Ms Colebourne, such that it was not considered to be an appropriate use of public resources, or in the public interest, for Ms Colebourne to remain suspended with remuneration while the allegation against her remains outstanding.[18]

Compliance with the Directive

  1. [33]
    Thirdly, pursuant to s 137(9)(c) of the PS Act, in suspending a public service employee under s 137 of the PS Act, Acting Assistant Commissioner Nelson had to comply with the Directive.
  1. [34]
    Clause 1 of the Directive provides:
  1. Purpose

1.1 This directive:

  1. (a)
    outlines the procedures relating to suspension
  1. (b)
    details the periodic reviews of suspension matters
  1. (c)
    establishes natural justice considerations, including requirements about providing reasons for decisions about suspensions
  1. (d)
    describes the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during their suspension
  1. (e)
    details the circumstances in which an employee suspended without remuneration may be reimbursed for remuneration they do not receive during suspension after a determination on discipline penalty is made.

1.2 This directive supports the Public Service Act 2008 (PS Act) requirements relating to suspension. Suspension is an administrative action, taken for administrative necessity. It is not disciplinary action and is not to be used as a form of punishment. Suspension should be used as a last resort after a decision maker considers all alternative duties prior to making the decision to suspend an employee.

  1. [35]
    Clause 4.4 of the Directive provides that under the Human Rights Act 2019, decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive to give proper consideration to human rights.
  1. [36]
    Clause 6 of the Directive relevantly provides:

6. Suspension without remuneration

6.1 Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.

6.2 A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.

6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

  1. (a)
    the nature of the discipline matter
  1. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  1. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [37]
    The Directive is made by the Public Service Commission chief executive under s 53 and s 137A of the PS Act. Section 7 of the Statutory Instruments Act 1992 provides that an instrument (any document) is a statutory instrument if it is made under an Act[19] and it is an instrument of the type described in s 7(3) of that Act.
  1. [38]
    The Directive is a statutory instrument because it is made under s 53 and s 137A of the PS Act by the Public Service Commission chief executive. It is also an instrument of the type described in s 7(3) of the Statutory Instruments Act 1992 because it is an instrument of a public nature which unilaterally affects the rights and liabilities of chief executives of public service departments in suspending public service employees under the PS Act.
  1. [39]
    By virtue of s 14 of the Statutory Instruments Act 1992, certain provisions of the Acts Interpretation Act 1954 apply to statutory instruments. One of those is s 14A of the Acts Interpretation Act 1954. That section provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Further, the construction of a statutory instrument is approached in the same way as interpreting a statute.[20]
  1. [40]
    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose; and context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense.[21]

Are the factors referred to in cl 6.3 of the Directive exhaustive or merely inclusive?

  1. [41]
    Ms Colebourne submitted that because cl 6.3 of the Directive uses the mandatory language, namely, that the chief executive '… is to consider' the factors in sub‑cls 6(a) to (c), but did not include the words '… but not limited to', they were an exhaustive list of factors.[22]
  1. [42]
    I do not accept Ms Colebourne's submissions. There are two reasons for this.
  1. [43]
    First, the relevant purpose of the Directive is to describe the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during their suspension.
  1. [44]
    Secondly, in describing those circumstances, the words of cl 6.3 are clear. The use of the verb 'include' means that the three factors expressly referred to in the clause are not the only matters the chief executive 'is' to consider. Further, having regard to the fact that there are 'factors' the chief executive 'is' to consider - in determining whether normal remuneration is not appropriate - that obviously means that there are other factors, in addition to those contained in sub-cls 6.3(a) to (c), a chief executive may consider to be relevant in a particular case.
  1. [45]
    Ms Colebourne also submitted that the factor referred to in sub-cl 6.3(c) should be read narrowly, namely, the public interest consideration described is that of the employee remaining on suspension with remuneration. Given the plain words used in that provision, I accept Ms Colebourne's submission.

Given the factors referred to in cl 6.3 of the Directive are inclusive, how was Acting Assistant Commissioner Nelson to consider them?

  1. [46]
    Where, in a statute, a decision maker is to have regard to (or consider) particular matters, the statute requires the decision maker to take those matters into account and to give weight to them as a fundamental element in making the determination, but not to make the decision by reference to them exclusively.[23]
  1. [47]
    In the context of a court judicially reviewing an administrative decision, it has been held that not every consideration that a decision maker is bound to take into account, and fails to take into account, justifies the court setting aside the impugned decision and ordering that the discretion be exercised according to law. This is because a factor may be so insignificant that the failure to take it into account could not have materially affected the decision.[24]

The factor referred to in sub-cl 6.3(a) of the Directive

  1. [48]
    Clearly, in her decision, for the reasons given above, when I deal with the matters to which Acting Assistant Commissioner Nelson referred when she was considering s 137(4)(b) of the PS Act, she did consider sub‑cl 6.3(a) of the Directive. Ms Colebourne did not make any submission to the contrary.
  1. [49]
    MsColebourne did submit that Acting Assistant Commissioner Nelson did not consider the factors contained in sub‑cls 6.3(b) and (c).

The factor referred to in sub-cl 6.3(b) of the Directive

  1. [50]
    True it is that Acting Assistant Commissioner Nelson does not refer to any factors not within the control of the agency that are preventing the timely conclusion of the discipline process. It is reasonable to assume that such matters, if they were relevant, would refer to, for example, an employee being incapacitated for a long period of time or being incarcerated, which may be matters that would prevent the timely conclusion of the discipline process. Such matters would be outside of the control of the Service.
  1. [51]
    As best as I can make out, on the facts before Acting Assistant Commissioner Nelson, there were no matters of that kind. Similarly, there were no matters of that kind raised by Ms Colebourne.
  1. [52]
    For these reasons, the fact that Acting Assistant Commissioner Nelson did not refer to any such factors, and having regard to all the other matters to which Acting Assistant Commissioner Nelson was required to and did consider, I do not consider the failure to refer to such a factor, on its own, renders the decision other than fair and reasonable.

The factor referred to in sub-cl 6.3(c) of the Directive

  1. [53]
    I do not accept the submission that Acting Assistant Commissioner Nelson failed to consider this factor.
  1. [54]
    While Acting Assistant Commissioner Nelson did not expressly refer to sub‑cl 6.3(c) of the Directive and did not expressly refer to the 'public interest' of Ms Colebourne remaining on suspension with remuneration, she did take into account that factor as a matter of substance.
  1. [55]
    Acting Assistant Commissioner Nelson expressly dealt with submissions made by Ms Colebourne about the effect a decision to suspend her without remuneration would have on her private interests, namely, that removal of remuneration would cause immediate hardship including an inability to meet mortgage repayments. Acting Assistant Commissioner Nelson stated that she carefully considered those submissions, that she acknowledged Ms Colebourne's situation, but that she was not persuaded that Ms Colebourne's private interests outweighed those of the Service and the public interest in maintaining the reputation of, and the public's trust in, the Service including in respect to compliance with the Service's financial accountability obligations, particularly given the seriousness of the allegation against her.[25]
  1. [56]
    Clearly, in this regard, Acting Assistant Commissioner Nelson did take into account the impact that being without remuneration would have on Ms Colebourne and weighed that factor (even though not expressed as a public interest consideration) with other considerations in coming to her decision.
  1. [57]
    Even when a court is judicially reviewing the decision of an administrative decision maker (which is not the function I am performing), it is settled that the reasons for the decision under review are not to be construed minutely and finely with a keen eye attuned to the perception of error. Such a proposition recognises the reality that the reasons of an administrative decision maker are meant to inform and are not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[26]
  1. [58]
    In my opinion, the same sentiment is apt in the present case. In determining whether the suspension without remuneration decision was fair and reasonable, the substance of the reasons given by Acting Assistant Commissioner Nelson are the best guide to determine whether or not the decision was fair and reasonable.
  1. [59]
    For these reasons, I cannot find that this aspect of Acting Assistant Commissioner Nelson's decision, on its own, rendered the decision other than fair and reasonable.

What other matters could Acting Assistant Commissioner Nelson consider?

  1. [60]
    The relevant purpose of s 137 of the PS Act is to describe the circumstances by which a chief executive of a department may exercise discretion to suspend a person from duty. Relevantly, s 137(4) provides that a public service employee is entitled to normal remuneration during their suspension unless the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [61]
    As referred to earlier, the relevant purpose of the Directive is to describe the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during their suspension. Clause 6.3 of the Directive does not limit the factors to which the chief executive may have regard in determining whether or not an employee should be suspended without remuneration.
  1. [62]
    I did not understand Ms Colebourne, in her oral submissions, to submit that the factors that Acting Assistant Commissioner Nelson did take into account, namely, the prescribed responsibility of the Commissioner pursuant to s 4.8 of the Police Service Administration Act 1990, the Commissioner's duty pursuant to the Work Health and Safety Act 2011, that the Service is a publicly funded organisation with statutory financial accountability obligations, the reputation of the Service and the public service, and the Service complying with its financial accountability obligations, were factors beyond the subject matter, scope and purpose of s 137 of the PS Act and of cl 6 of the Directive. Rather, Ms Colebourne's submission was that those considerations were given greater weight than, in particular, the factors referred to in sub-cl 6.3(b) and (c) of the Directive.[27]
  1. [63]
    As referred to earlier, in my opinion, Acting Assistant Commissioner Nelson did give fundamental weight to the factors referred to in sub-cl 6.3(a) and (c) of the Directive. However, those are not the only factors to which Acting Assistant Commissioner Nelson was able to have regard. Acting Assistant Commissioner Nelson weighed the factors referred to in sub-cl 6.3(a) and (c) of the Directive with the other factors referred to above.
  1. [64]
    It must also be borne in mind that by virtue of s 137(4)(b) of the PS Act, fundamental weight also had to be given to the nature of the discipline to which the chief executive believes Ms Colebourne is liable. Clearly, having regard to the reasons given by Acting Assistant Commissioner Nelson, that consideration was weighed and was decisive in her decision that Ms Colebourne should be suspended without normal remuneration.
  1. [65]
    In oral submissions, Ms Colebourne also referred to a document published by the Public Service Commission which was a Guide entitled 'Manage employee suspensions' ('the Guide').
  1. [66]
    In particular, Ms Colebourne drew my attention to the second page of the Guide which provided that suspension without remuneration should only be considered in situations when the agency cannot conclude a process in a timely way due to the existence of external factors beyond the agency's control and that it is not in the public interest for an employee to remain on suspension with remuneration.[28]
  1. [67]
    Ms Colebourne also referred to the part of the Guide which provided two 'scenarios' where an employee may be suspended without remuneration. They were:
  • where criminal charges have been laid against the employee and the discipline process was being held pending the outcome of charges; and
  • a serious discipline matter was prevented from being finalised for an extended period due to an external factor outside the agency's control.[29]
  1. [68]
    Ms Colebourne submitted that whilst the Guide was not binding, it provided context to the scope and purpose of the PS Act dealing with the power to suspend without remuneration.[30]
  1. [69]
    I do not place any significant weight on what the Guide provides in determining whether the suspension without remuneration decision was fair and reasonable. Reading the Guide as a whole, it is not extrinsic material of the kind referred to in s 14B(3) of the Acts Interpretation Act 1954 and to which consideration may be given in construing the PS Act or the Directive.[31]
  1. [70]
    For example, the Guide is not an explanatory note or memorandum relating to the Bill that contained s 137 of the PS Act or a speech made to the Legislative Assembly by the Member when introducing the Bill, or other material that may disclose the purpose of that provision. The Guide seems to me to be an expression of opinion by persons within the Public Service Commission for the purposes of providing broad guidance to departments about compliance with s 137 of the PS Act and the Directive.
  1. [71]
    The better approach in determining whether the suspension without remuneration decision was fair and reasonable involves a consideration of the reasons given by Acting Assistant Commissioner Nelson, having regard to the construction of s 137 of the PS Act and of the Directive by application of the principles to which I have referred.
  1. [72]
    For all these reasons, I am not persuaded that the issues raised by Ms Colebourne about the weight given by Acting Assistant Commissioner Nelson to factors not mentioned in cl 6.3 of the Directive renders the suspension without remuneration decision other than fair and reasonable.

Was the suspension without remuneration decision a decision in bad faith?

  1. [73]
    In written submissions, Ms Colebourne submits that:
  • the errors of law regarding the failure to properly apply s 137(4) of the PS Act and cl 6.3 of the Directive show clear and demonstrable proof that the suspension decision under appeal was being utilised for an impermissible reason;
  • the threat of suspension without remuneration was being used as part of a scheme to compel compliance with Direction No. 12 through economic coercion;
  • the suspension without remuneration decision was being used as impermissible punishment and/or a step in a disciplinary process proven by, on page 3 of the show cause notice, an invitation to Ms Colebourne to provide submissions about the steps she had taken to become vaccinated and to provide evidence of her vaccination to her supervisor; and
  • the decision is '… the very definition of an abuse of power in bad faith'.[32]
  1. [74]
    I do not accept Ms Colebourne's submission that Acting Assistant Commissioner Nelson made the suspension without remuneration decision in bad faith. There are two reasons for this.
  1. [75]
    First, for the reasons I have given above, Acting Assistant Commissioner Nelson did not make any errors of law in her application of s 137(4) of the PS Act or in her consideration of the other factors she took into account.
  1. [76]
    Secondly, I am not persuaded that the suspension without remuneration decision, or the threat of it, was being used impermissibly to coerce compliance with Direction No. 12, was punishment or was being used as a step in a disciplinary process. The evidence Ms Colebourne points to in support of that contention is on the third page of the show cause notice where Acting Assistant Commissioner Nelson provides an invitation to Ms Colebourne to provide submissions about the steps Ms Colebourne had taken to become vaccinated and to provide evidence of her vaccination to her supervisor.
  1. [77]
    Read in context, Acting Assistant Commissioner Nelson was inviting Ms Colebourne, in her response, to provide any information or explanation that Ms Colebourne believed could be relevant to the question of whether or not Ms Colebourne should be suspended without remuneration. In doing so, Acting Assistant Commissioner Nelson stated she would be particularly assisted by submissions addressing a range of considerations, which included any steps Ms Colebourne had taken to become vaccinated and any evidence of such vaccination she had provided to her supervisor.
  1. [78]
    Evidence about that issue was relevant to whether or not Acting Assistant Commissioner Nelson would exercise discretion to suspend Ms Colebourne without remuneration. If it was the case that Ms Colebourne, since receipt of the show cause notice, had taken steps to become vaccinated and had provided evidence of that to Superintendent Lawrence, then that was a material consideration in respect of the decision Acting Assistant Commissioner Nelson had to make.
  1. [79]
    For these reasons, the fact that Acting Assistant Commissioner Nelson stated she would be '… particularly assisted' by submissions addressing that specific consideration did not turn the show cause notice into an instrument of coercion. Similarly, that statement did not turn the show cause notice into disciplinary action or a step in a disciplinary process.
  1. [80]
    In oral submissions:
  • Ms Colebourne referred to page 6 of the suspension without remuneration decision, where Acting Assistant Commissioner Nelson, after having assessed the limitation on Ms Colebourne's human rights by making a decision to suspend her without remuneration, stated '… I consider these limits on human rights are reasonable and justified by the need to ensure compliance with the Direction';
  • submitted that it was clearly within Acting Assistant Commissioner Nelson's mind that part of the reason it was appropriate to suspend without remuneration was to ensure compliance with Direction No. 12 which was impermissible in that suspension without remuneration cannot be used as a punishment; and
  • submitted that therefore, the decision was made for an improper purpose which made the decision unfair and unreasonable.[33]
  1. [81]
    I cannot accept these submissions.
  1. [82]
    The statement made by Acting Assistant Commissioner Nelson in the suspension without remuneration decision, as impugned by Ms Colebourne, was made after Acting Assistant Commissioner Nelson had made the decision to suspend Ms Colebourne without remuneration. The impugned statement was made in the context of Acting Assistant Commissioner Nelson considering whether or not the decision - that she had already made and for which she had given reasons - was compatible with Ms Colebourne's human rights.
  1. [83]
    Acting Assistant Commissioner Nelson stated that because her decision, in part, enforced Direction No. 12, then her decision limited Ms Colebourne's human rights related to autonomy and bodily integrity, including the right not to receive medical treatment without consent and the right to privacy.
  1. [84]
    Section 13(2)(e) of the Human Rights Act 2019 provides that in deciding whether a limit on a human right is reasonable and justified, a factor that may be relevant is the importance of the purpose of the limitation. Again, reading the decision as a whole, Acting Assistant Commissioner Nelson considered whether the decision, which she found had the effect of enforcing Direction No. 12 which thereby limited Ms Colebourne's human rights, was reasonable and justified.
  1. [85]
    It was in that context that Acting Assistant Commissioner Nelson made the statement impugned by Ms Colebourne. The statement was made in the context of Acting Assistant Commissioner Nelson weighing up the reasons as to why the limits on Ms Colebourne's human rights were reasonable and justified.
  1. [86]
    In so considering whether the limits on Ms Colebourne's human rights were reasonable and justified, that did not, in my opinion, mean that the decision Acting Assistant Commissioner Nelson had already made and for which she had given reasons, turned the real reason for the suspension without remuneration decision into a form of punishment. This is because Acting Assistant Commissioner Nelson, earlier in her written reasons for decision, had clearly given her reasons as to why she made the decision to suspend Ms Colebourne without remuneration.
  1. [87]
    In my opinion, none of those reasons could give rise to a conclusion that Acting Assistant Commissioner Nelson made the decision for an improper reason or in bad faith.
  1. [88]
    The comment made by Acting Assistant Commissioner Nelson about the need to ensure compliance with Direction No. 12 was made in the context of considering whether or not the decision that she had made was compatible with Ms Colebourne's human rights. That comment, in the context in which it was made, on its own, does not render Acting Assistant Commissioner Nelson's decision to be one made in bad faith or for an improper purpose.

Was the suspension without remuneration decision an improper exercise of power?

  1. [89]
    Ms Colebourne also submitted that:[34]
  • the Commissioner's ability to fulfil the prescribed responsibility under s 4.8 of the Police Service Administration Act 1990, the Commissioner's duty pursuant to the Work Health and Safety Act 2011 and the current economic climate and expenditure of public resources, were irrelevant considerations; and
  • the failure to take into account mandatory considerations and the consideration of the irrelevant matters fitted squarely into the concept of an unreasonable exercise of power of the kind referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[35]
  1. [90]
    For the reasons I have given earlier:
  • section 137(4)(b) of the PS Act provides that a public service employee is entitled to normal remuneration during their suspension unless the chief executive considers that it is not appropriate having regard to the nature of the discipline to which the chief executive believes the person is liable;
  • the factors contained in cl 6.3 of the Directive were not an exhaustive list of the factors Acting Assistant Commissioner Nelson could consider in determining whether or not to suspend Ms Colebourne without remuneration; and
  • having regard to cl 6.3 of the Directive, the other factors that could be taken into account were unconfined except insofar as there may be found in the subject matter, scope and purpose of the Directive, some implied limitation on the factors to which Acting Assistant Commissioner Nelson could legitimately have regard.
  1. [91]
    The nature of the discipline to which Acting Assistant Commissioner Nelson believed Ms Colebourne was liable centred on Ms Colebourne's refusal to comply with Direction No. 12. Given the reasons for the issuing of Direction No. 12, which was directed to the health and safety of members of the Service, then the Commissioner's prescribed responsibility provided for in s 4.8(1) of the Police Service Administration Act 1990 and the Commissioner's duty pursuant to the Work Health and Safety Act 2011 were clearly relevant considerations.
  1. [92]
    Similarly, in my opinion, in the circumstances of this case where Ms Colebourne was refusing to comply with Direction No. 12, which was the reason for her suspension from duty, then having regard to the subject matter, scope and purpose of the Directive, namely, to prescribe the circumstances where an employee may be suspended without remuneration, I can discern no reason why consideration of the expenditure of public resources would not be relevant in making such a decision.
  1. [93]
    I am not convinced that the current economic climate was a material consideration. That consideration, it seems to me, is not a relevant consideration having regard to the purpose of the Directive. However, given that it was one of a number of considerations taken into account by Acting Assistant Commissioner Nelson, I am not persuaded that consideration of that matter renders the decision overall to be other than fair and reasonable. In my assessment, having regard to all the reasons given by Acting Assistant Commissioner Nelson, the consideration of the current economic climate was not a significant consideration. That is, having regard to all those reasons, I am not persuaded that a different decision would have been made if there was no consideration of the current economic climate.
  1. [94]
    For all these reasons, I am not persuaded that, in considering whether the suspension without remuneration decision was other than fair and reasonable, it was a decision that involved an improper exercise of power.

Conclusion

  1. [95]
    For the reasons given, the suspension without remuneration decision was fair and reasonable.
  1. [96]
    I confirm the suspension without remuneration decision.

Order

  1. [97]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] [2022] QIRC 016.

[2] Ms Colebourne's written submissions filed on 20 December 2021 ('Ms Colebourne's written submissions'), paras. [13]-[18].

[3] Ms Colebourne's written submissions, paras. [22]-[24].

[4] Ms Colebourne's written submissions, paras. [25]-[26].

[5] Ms Colebourne's written submissions, paras. [27]-[28].

[6] Ms Colebourne's written submissions, paras. [29]-[32].

[7] The Service's written submissions filed on 5 January 2022 ('the Service's submissions'), para. [13].

[8] The Service's submissions, para. [14].

[9] [2021] QIRC 356. The Service's submissions, para. [17].

[10] The Service's submissions, paras. [18]-[21].

[11] [2021] QIRC 414, [31] (Industrial Commissioner McLennan). In this case, the Commission referred to the part of the decision of Ryan J in Gilmore v Waddell & Ors [2019] QSC 170, [207]-[210] which in turn cited the joint judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 322, [63]-[76] which described the considerations in determining whether a decision met the legal standard of reasonableness. The Service's submissions, para. [24].

[12] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 ('Peko‑Wallsend'), 39 (Mason J).

[13] Ibid 39-40.

[14] Peko-Wallsend (n 12), 40.

[15] Ibid 41.

[16] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[17] Notice of suspension without remuneration decision dated 3 December 2021, signed by Acting Assistant Commissioner Nelson ('the suspension without remuneration decision'), page 2.

[18] The suspension without remuneration decision, page 3.

[19] Section 7(2)(a) of the Statutory Instruments Act 1992.

[20] Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532, 543 (Drummond, Cooper and Finkelstein JJ).

[21] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ).

[22] Ms Colebourne's outline of oral submissions filed on 7 January 2022 ('Ms Colebourne's outline'), paras. [38]‑[39].

[23] R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329 (Mason J),

[24] Peko-Wallsend (n 12), 40.

[25] The suspension without remuneration decision, page 4.

[26] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[27] Ms Colebourne's outline, [49]-[51] and T 1-48 to T 1-50. However, in Ms Colebourne's written submissions at para. [31], she submitted that the Commissioner's ability to fulfil the prescribed responsibility under s 4.8 of the Police Service Administration Act 1990, the Commissioner's duty pursuant to the Work Health and Safety Act 2011, the current economic climate and expenditure of public resources were irrelevant considerations. I deal with this alternative submission below.

[28] T 1-50, ll 22-35.

[29] T 1-47, l 28 to T 1-51, l 24.

[30] T 1-50, ll 13-14.

[31] In respect of extrinsic material of the kind to which regard may be had in construing the Directive, see s 15 of the Statutory Instruments Act 1992.

[32] Ms Colebourne's written submissions, paras. [27]-[28].

[33] T 1-61, l 38 to T 1-62, l 22.

[34] Ms Colebourne's written submissions, paras. [29]-[32].

[35] [1948] 1 KB 223, 229 (Lord Greene MR).

Close

Editorial Notes

  • Published Case Name:

    Colebourne v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Colebourne v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 18

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    28 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K.B., 223
2 citations
Jump To
Cite 1 - (1948) 1 K.B., 223
Cite 2 - (1948) 1 K.B., 223
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
2 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
George v Rockett (1990) 170 CLR 104
2 citations
Jump To
Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
George v Rockett [1990] HCA 26
2 citations
Jump To
Cite 1 - [1990] HCA 26
Cite 2 - [1990] HCA 26
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
6 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Cite 3 - (1986) 162 CLR 24
Cite 4 - (1986) 162 CLR 24
Cite 5 - (1986) 162 CLR 24
Cite 6 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
2 citations
Jump To
Cite 1 - [1986] HCA 40
Cite 2 - [1986] HCA 40
Minister for Immigration and Citizenship v Li [2013] HCA 18
2 citations
Jump To
Cite 1 - [2013] HCA 18
Cite 2 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
1 citation
Jump To
Cite 1 - (2013) 249 CLR 332
Minister for Immigration and Citizenship v Li (2013) 249 CLR 322
1 citation
Jump To
Cite 1 - (2013) 249 CLR 322
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
2 citations
Jump To
Cite 1 - (1996) 185 CLR 259
Cite 2 - (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
2 citations
Jump To
Cite 1 - [1996] HCA 6
Cite 2 - [1996] HCA 6
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322
2 citations
Jump To
Cite 1 - (1979) 180 CLR 322
Cite 2 - (1979) 180 CLR 322
R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32
2 citations
Jump To
Cite 1 - [1979] HCA 32
Cite 2 - [1979] HCA 32
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
2 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
Whittaker v Comcare (1998) 86 FCR 532
2 citations
Jump To
Cite 1 - (1998) 86 FCR 532
Cite 2 - (1998) 86 FCR 532
Whittaker v Comcare [1998] FCA 1099
2 citations
Jump To
Cite 1 - [1998] FCA 1099
Cite 2 - [1998] FCA 1099

Cases Citing

Case NameFull CitationFrequency
Bah v State of Queensland (Queensland Health) [2025] QIRC 963 citations
Blackie v State of Queensland (Queensland Police Service) [2022] QIRC 852 citations
Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 374 citations
Campbell v State of Queensland (Queensland Health) [2022] QIRC 4052 citations
Clarke v State of Queensland (Queensland Police Service) [2022] QIRC 702 citations
Colebourne v State of Queensland (Queensland Police Service) [2025] QIRC 1233 citations
Colebrook v State of Queensland (Queensland Health) [2025] QIRC 532 citations
Gorry v State of Queensland (Department of Education) [2022] QIRC 1962 citations
Graf v State of Queensland (Department of Education) [2022] QIRC 4512 citations
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 763 citations
Karen v State of Queensland (Queensland Police Service) [2022] QIRC 382 citations
Karen v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 1913 citations
Khan v State of Queensland (Queensland Police Service) [2022] QIRC 552 citations
Payne v State of Queensland (Department of Education) [2025] QIRC 1982 citations
Philp v State of Queensland (Department of Education) [2023] QIRC 2191 citation
Prentis v State of Queensland (Department of Education) [2022] QIRC 2122 citations
Schimke v State of Queensland (Department of Education) [2022] QIRC 1362 citations
Smith v State of Queensland (Department of Environment and Science) [2022] QIRC 4002 citations
Thomson v State of Queensland (Department of Education) [2022] QIRC 4022 citations
Tribe v State of Queensland (Department of Education) [2022] QIRC 2032 citations
1

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