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  4. Langerak v State of Queensland (Queensland Police Service) - [2022] QIRC 327

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Langerak v State of Queensland (Queensland Police Service)[2022] QIRC 327

Langerak v State of Queensland (Queensland Police Service)[2022] QIRC 327

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Langerak v State of Queensland (Queensland Police Service) [2022] QIRC 327

PARTIES:

JADE LANGERAK

(applicant)

v

STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE)

(respondent)

FILE NO/S:

D/2022/2

PROCEEDING:

Dispute

DELIVERED ON:

19 August 2022

HEARING DATE:

17 August 2022

MEMBER:

Davis J, President, O'Connor VP, Merrell DP

ORDER/S:

The prescribed officer, Assistant Commissioner Carless, is authorised to start disciplinary proceedings on what he has described as “Matter 1” and “Matter 4”

CATCHWORDS:

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where the applicant is a sworn police officer – where a member of the public made a complaint about her conduct – where the Commissioner referred the complaint to a prescribed officer – where the Commissioner did not refer all the allegations in the complaint – where the prescribed officer commenced a disciplinary proceeding – whether the grounds of the disciplinary proceeding are beyond the complaint referred to the prescribed officer – whether the prescribed officer has power to conduct a disciplinary proceeding on those grounds

Police Service Administration Act 1990, s 1.3, s 1.4, s 2.2, s 2.3, s 4.8, s 4.9, s 4.10, s 6A, s 6A.1, s 7.2, s 7.3, s 7.4, s 7.5, s 7.9, s 7.10, s 7.11, s 7.12, s 7.13, s 7.15, s 7.16, s 7.17, s 7.18, s 7.19, s 7.20, s 7.21, s 7.22, s 7.23, s 7.24, s 7.25, 7.26, s 7.27, s 7.28, s 7.29, s 7.30, s 7.31, s 7.34, s 7.35

CASES:

Legal Services Commissioner v Madden [2009] 1 Qd R 149, cited

Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383, cited

Norvill v Commissioner of Queensland Police Service & Anor [2022] QCA 104, cited

Police Service Board v Morris & Martin (1985) 156 CLR 397, cited

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed

The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507, followed

APPEARANCES:

M Black for the applicant instructed by Gnech and Associates

A Freeman for the respondent instructed directly by the Queensland Police Service

  1. [1]
    This dispute concerns disciplinary action brought by a commissioned officer of the Queensland Police Service (QPS) against the applicant, Jade Langerak, who is a serving Queensland Police officer holding the rank of Senior Constable.
  2. [2]
    What is in issue is whether Assistant Commissioner Maurice Carless has power to commence disciplinary proceedings against SC Langerak in the terms he has purported to do so.

Background

  1. [3]
    Senior Constable Langerak, in an unrelated family law matter, and in her personal capacity, engaged a solicitor, Ms Gilfoyle.
  2. [4]
    In March 2018, there was an incident in Emerald involving a Mr Ericsson and his domestic partner.  As a result, Mr Ericsson was charged with various domestic violence offences.
  3. [5]
    It is alleged that about six months later, SC Langerak entered into an intimate relationship with Mr Ericsson. 
  4. [6]
    Thereafter, Mr Ericsson’s criminal proceedings took their course.  He terminated the retainer of his lawyers and retained Ms Gilfoyle.
  5. [7]
    Ms Gilfoyle investigated the prospects of obtaining and calling medical evidence on Mr Ericsson’s behalf in the criminal proceedings.  She emailed to Mr Ericsson and SC Langerak templates of documents to be used to instruct medical practitioners.  It is alleged that independently of this, SC Langerak or Mr Ericsson made an appointment with a Dr Macgroarty with a view to obtaining a further medical report.
  6. [8]
    It is alleged that SC Langerak altered the template which was ultimately given to Dr Macgroarty.  Importantly, the alterations selectively identified aspects of Mr Ericsson’s partner’s proposed evidence against him.
  7. [9]
    It is further alleged that when Mr Ericsson attended upon Dr Macgroarty, SC Langerak was present and represented that she was an assistant to Ms Gilfoyle.  It is alleged that she provided the altered template document to Dr Macgroarty.
  8. [10]
    Mr Ericsson was ultimately convicted of some of the offences with which he was charged and sentenced on 7 November 2019 to a term of imprisonment.
  9. [11]
    Ms Gilfoyle complained about the conduct of SC Langerak who was charged criminally with the offences of forgery, uttering and fraud.  That prosecution did not proceed and was dismissed without hearing on the merits in the Brisbane Magistrates Court on 24 May 2021. 
  10. [12]
    In June 2021, a disciplinary investigation was commenced.  That led to an investigation report being prepared by Sergeant John Dunbar.[1]  He identified six allegations which he described as follows:

“Allegation 1:

Misuse information - Acquire or retain information or records illegally

Allegation that the subject member[2] has retained solicitors letter, altered and then forged it before presenting that letter to a medical practitioner to obtain medical records…

Allegation 2

Interfere or undermine investigation, legal process or conduct matter - Undermine by intervening in proceedings inappropriately.

Allegation that the SM[3] has involved herself in a legal process which is outside of their lawful duties…

Allegation 3:

Unprofessional conduct - Other

Allegation that the SM purported to be a legal secretary when presenting forged documents to a medical practitioner…

Allegation 4:

Interfere or undermine investigation, legal process or conduct matter - Create, falsify or destroy document/record (inc. perjury)

The CP alleges that the SM has forged/uttered a medico-legal report in relation to her partner’s injury and where he obtained the injury and presented it to his defence solicitor for it to be used in a Criminal Court Case…

Allegation 5:

Other offence - Criminal offence

Possible offence against s. 123 CC - Perjury…

Allegation 6:

Other offence - Criminal offence

Possible offence against s. 140 CC - Attempt to pervert justice”

  1. [13]
    In a very detailed investigation report, independently reviewed by Superintendent Hallam, Sergeant Dunbar concluded that “… there is sufficient evidence for the case manager to refer this matter to a prescribed officer or decision-maker to decide on substantiation and sanction with respect to allegations 1, 2 and 3.  There is insufficient evidence to refer allegations 4, 5 and 6.”
  2. [14]
    The particulars of allegation 1 are as follows:

“Matter 1

That between the 4th of July 2019 and 20th of July 2019 at Brisbane your conduct was improper in that you altered the medical practitioner report request of Julie Gilfoyle (Solicitor) and presented it to Dr Kelly McGroarty to obtain a medical legal report with respect to a medical condition of your fiancé Brett Anthony Ericsson’s relevant to his defence of criminal charges that were at that time before the Emerald District Court.”

  1. [15]
    This concerns SC Langerak’s alleged conduct in obtaining the template, altering it and then presenting it to Dr Macgroarty for him to act upon as if the document had been authored by Ms Gilfoyle.
  2. [16]
    Further particulars were provided of allegation 1, but it is unnecessary to analyse them.
  3. [17]
    The particulars of allegation 2 are:

“Matter 2

That between the 10th of March 2018 and the 8th of November 2019 at Brisbane and elsewhere your conduct was improper in that you involved yourself in legal processes outside of your lawful duties.”

  1. [18]
    Allegation 2 was accompanied by “Findings” and “Reasons” as follows:

“Findings:

There is sufficient evidence for the case manager to refer the matter to a prescribed officer or decision maker to decide on substantiation and sanction.

Reasons:

This allegation has been classified as misconduct pursuant to s. 7.4(1)(a) of the Police Service Administration Act 1990 (‘PSA Act’).

Misconduct is defined in s. 1.4 of the PSA Act.

The conduct of the SM with respect to this allegation was improper.

Improper is defined in s. 1.5 of the QPS Procedural Guidelines for Professional Conduct (2013/05) as ‘anything that is not in accordance with propriety of behaviour or conduct suitable for a particular purpose, person or occasion’.

Conflicts of interest for member of the QPS are provided for in s. 1.2 of the Standard of Practice 2012/33).” (emphasis added)

  1. [19]
    Further and better particulars were provided of allegation 2 which are of some significance to the current dispute.  These are:

“Further and better particulars

  • That on the 11th of March 2018, the SM’s fiancé was arrested and charged with offences of Assault Occasioning Bodily Harm and Choking, suffocation or strangulation in a domestic setting that occurred at Emerald, The complainant for these offences was the SM’s fiancé’s previous defacto (i.e. not the SM). (Appendicies 2 & 3)
  • That in September 2018, the SM commenced a relationship with her now fiancé and later moved in together. (Note: When interviewed the SM indicated that she and her fiancé moved in together in November 2019. It is noted that the SM’s fiancé was in custody at this time and potentially the correct year was 2018 as they were living together at the time of the medical appointment with Dr Kelly Magroarty on 19 July 2019.)
  • That on or about the 13th of February 2019, the SM completed an Application for a Private DV Order on behalf of her fiancé. (Note: There is substantial material provided in addition to the application.) (Appendix 28)
  • That between the 10th of June 2019 and the 7th of November 2019, the SM prepared the affidavits of five (5) defence witnesses to support her fiancé. (Appendix 11)
  • That on 24th of June 2019, the SM completed a Application to vary DV Order on behalf of her fiancé to include her as a named person. (Note: ·Reference is made to a complaint made by [redacted] to the QPS against the SM) (Appendix 29)
  • That between the 5th of July 2019 and the 19th of July 2019, the SM significantly altered and presented a medical practitioner report request to Dr Kelly Magroarty without the express consent or permission of Ms Gilfoyle (Solicitor). (Appendices 5 & 6)
  • That on the 19th of July 2019, the SM and her fiancé attended a medical appointment with MacGroarty whereby she presented herself as Julie Gilfoyle’s Assistant (law student). (Appendix 20)
  • That on the 4th of November 2019, the SM conducted surveillance of prosecution witnesses involved in the District Court Trial of her fiancé for matters that were before the Emerald District Court. (Appendix 31 - excerpt of Appendix 27)
  • That on the 4th of November 2019, the SM sought a list of jury members for the trial of her fiancé from Julie Gilfoyle (Solicitor) for matters that were before the Emerald District Court. (Appendix 31 - excerpt of Appendix 27)
  • That on the 7th of November 2019, the SM’s fiancé was found guilty at trial in the Emerald District Court for the offence of Attempted Choking, suffocation or strangulation in a domestic setting. A conviction was recorded and he was sentenced to 2 years imprisonment with a parole release date for the 5th of September 2020. (Appendix 4)
  • That on the 10th of November 2019, Julie Gilfoyle (Solicitor) made application to withdraw the Private DV Application previously referred to. (Appendix 30)

Relevant Matters

  • On the 10th of June 2019, Gilfoyle sends an email to the SM and her fiancé outlining a number of matters which need to be attended to with respect to the upcoming trial. (Appendix 13)
  • On the 2nd of July 2019, the SM emailed Gilfoyle (Solicitor) the affidavit of her fiancé. She also refers to her affidavit being printed. (Appendix 14)
  • At 4.55pm on the 4th of November 2019, the SM sent a text message to Julie Gilfoyle that included an image of an address that contained a number of vehicles. The message was, ‘They are all at [names redacted] - al1 of them.’ (Appendix 31)
  • At 8.59pm on the 4th of November 2019, the SM sent a text message to Julie Gilfoyle, ‘… are we able to get a list of the jury?’ (Appendix 31)
  • On the 15th of July 2021, the SM was subject to a disciplinary interview which revealed the following:
  • The SM stated that at the request of Gilfoyle (Solicitor) she was asked to do a private DV for her fiancé to get her belonging back. (Note: At this time the SM’s fiancé was not represented by Julie Gilfoyle (Solicitor))
  • The SM stated that her fiancé has adult ADHD and left school in year 9 and this is why she completed the private DV application. (Refer email to the office of Dr MacGroarty - Appendix 24)
  • The SM stated that she personally obtained affidavits from five (5) defence witnesses who were friends or associates of her fiancé over the phone.
  • When questioned if she considered that her actions were a conflict with her role as a member of the QPS, the SM stated that she never identified herself as a police officer. She also stated that she thought she was allowed because she was asked to do these things by her fiancé’s solicitor who was a former police officer.

Summary

  • There is evidence that the SM’s actions are significantly more than being a ‘support person’ for her fiancé with respect to this allegation.
  • There is evidence that the SM’s actions are outside of her lawful duties.” (emphasis added)
  1. [20]
    Particulars of allegation 3 are:

“Matter 3

That on the 19th of July 2019 at Brisbane your conduct was improper in that by your words or behaviour you presented yourself as a solicitors assistant or law student during your fiancé’s medical appointment with Dr Kelly MacGroarty.”

  1. [21]
    On 12 October 2021, Superintendent Hallam, as delegate of the Commissioner,[4] signed a document entitled, “Prescribed Officer Referral - Consideration” (the referral document).  The referral document identifies allegations 1, 2 and 3 broadly in the terms as they appear in Sergeant Dunbar’s report.  The three allegations appear in the referral document as:

“Allegation 1

It is alleged that the SM has retained a solicitors letter, altered/forged it and presented it to a medical practitioner to obtain medical records

Allegation 2

It is alleged that the SM has involved herself in a legal process which is outside of their lawful duties

Allegation 3

It is alleged that the SM purported to be a legal secretary when presenting forged documents to a medical practitioner”

  1. [22]
    The referral document records that Superintendent Hallam has turned his mind to s 7.10 of the Police Service Administration Act 1990 (PSA Act) and to various factors, including the possibility of the implementation of professional development strategies.[5]  The document then concludes:

“I have determined this matter should be referred for the consideration of a prescribed officer, at the Office of State Discipline.” (emphasis in original)

  1. [23]
    Assistant Commissioner Carless is the “prescribed officer”.[6]  On 8 November 2021, AC Carless gave notice to SC Langerak of the commencement of disciplinary proceedings against her.
  2. [24]
    Of some significance are the opening paragraphs of the disciplinary notice:

“It has been reported to me by the Assistant Commissioner, Ethical Standards Command, that investigations have been made in relation to your conduct with respect to you:

  • Improperly altering and presenting a document purported to be under the hand of a solicitor to obtain a medical report for your partner;
  • misleadingly representing yourself to be a solicitor's assistant or law student;
  • failing to manage a conflict of interest between yourself and a defendant charged with serious criminal offences

The alleged conduct, if proved, would provide grounds for discipline pursuant to Section 7.4 of the Police Service Administration Act 1990 (the Act). It is my duty under Part 7 of the Act to take appropriate action if I am reasonably satisfied a disciplinary ground has been proved.” (emphasis added)

  1. [25]
    Five matters were identified in the disciplinary notice.  After correspondence passed between SC Langerak’s current solicitor, Mr Gnech, and AC Carless, the “matters” which are now to be the subject of disciplinary action are:

“MATTER ONE:

That between 10 March 2018 and 8 November 2019 at Brisbane and elsewhere your conduct was improper in that you failed to appropriately manage a conflict of interest between your personal affairs and official duties as a police officer in respect of domestic violence and criminal proceedings involving your partner Brett Mr Ericsson.

[Police Service Administration Act 1990 (Qld) s7.4(1)(a); Code of Conducts 1.2; Queensland Police Service Standard of Practice s 4; 2013/05 Procedural Guidelines for Professional Conduct s 3.4]

MATTER TWO:

That between 4 July 2019 and 20 July 2019 at Brisbane your conduct was improper in that you:

a) Inappropriately altered a document purported to be under the hand of solicitor Julie Gilfoyle for the purpose of requesting a medical report for your partner Brett Ericsson for use in his defence against serious criminal charges commenced by the Queensland Police Service;

b) Presented an altered document to a medical specialist, falsely representing the document to be under the hand of solicitor Julie Gilfoyle, to obtain a medical report for your partner Brett Ericsson for use in his defence against serious criminal charges commenced by the Queensland Police Service

[Police Service Administration Act 1990 (Qld) s7.4(1)(a); Code of Conduct ss 1.1, and 1.5; Queensland Police Service Standard of Practice s 2;].

MATTER THREE:

That on 19 July 2019 at Brisbane your conduct was improper in that by your words and behaviour, you represented yourself as a solicitor’s assistant or legal representative for your partner Brett Ericsson during an appointment with a medical specialist.

[Police Service Administration Act 1990 (Qld) s 7.4(1)(a); Code of Conduct ss 1.1, and 1.5; Queensland Police Service Standard of Practice s 2]…

MATTER FOUR:

That on 24 June 2019 your conduct was improper in you failed to maintain the confidentiality of a discipline complaint matter.

[Police Service Administration Act 1990 (Qld) s 7.4(1)(a); Complaint and Client Service Reporting - Complaint Management policy (V 0.1)”

  1. [26]
    Matters 2 and 3 directly correlate to allegations 1, 2 and 3 in the referral document.[7]  Matter 1 alleges a failure to manage a conflict of interest and Matter 4 alleges a breach of confidence.  Neither an allegation of failing to manage a conflict nor an allegation of breach of confidence appear expressly in the body of allegations 1, 2 or 3 in the referral document.
  2. [27]
    A notice of industrial dispute was filed and the parties agreed that there were two questions for determination:

(a) Question One: Does s 219E of the Crime and Corruption Act 2001 exclude the jurisdiction of the Commission in relation to a preliminary step taken in a disciplinary process conducted under the Police Service Administration Act 1990?

  1. (b)
    Question Two: If not, having regard to s 7.11 of the Police Service Administration Act 1990 and the terms of the complaint that was referred to the prescribed officer, was he authorised to start disciplinary proceedings in respect of Matters l(a) and 1(b) in the disciplinary proceeding notice?
  1. [28]
    The reference to Matters 1(a) and 1(b) in the disciplinary proceeding notice should now be a reference to Matter 1 and Matter 4 as they are now amended and set out in paragraph [25] of these reasons.
  2. [29]
    Senior Constable Langerak’s position is that each of Question One and Question Two should be answered, “no”.  The QPS concedes that the answer to the first question is “no” and that concession appears to be validly made.
  3. [30]
    It is therefore only Question Two which requires determination.  That raises two issues.  The first is whether, as a matter of law, the power of a prescribed officer is limited to conducting disciplinary proceedings only in relation to complaints which have been referred.  If the answer to that is, “yes”, then the question is whether matters 1 and 4 have been, relevantly, “referred”.

Statutory provisions

  1. [31]
    The object of the PSA Act includes “the maintenance of the Queensland Police Service”.[8]  The QPS is recognised as a disciplined force.[9]
  2. [32]
    That object is achieved in various ways, including identifying the functions of the QPS[10] and casting upon the Commissioner the responsibility for the “efficient and proper administration, management and functioning…”[11] of the QPS.  That responsibility is defined as “the prescribed responsibility”.[12]
  3. [33]
    In order to enable the Commissioner to discharge the prescribed responsibility, she may make directions pursuant to s 4.9.  Those directions may be specific or general.[13]  It is under this power that the Commissioner has made the Code of Conduct, the Queensland Police Service Standard of Practice and the Procedural Guidelines for Professional Conduct, all of which appear as notes to the four matters the subject of disciplinary action and appear at paragraph [25] of these reasons.
  4. [34]
    Part 7 of the PSA Act concerns “Discipline process for officers”.  Given the prescribed responsibility, it is unsurprising that the Commissioner performs a pivotal role in the disciplinary process.
  5. [35]
    Section 7.2 of the PSA Act provides:

“7.2 Application of part

This part applies in relation to a complaint about an officer (the subject officer) if—

  1. (a)
    the complaint is received by the commissioner or the CCC; and
  1. (b)
    the CCC has not assumed responsibility for investigating the complaint under the Crime and Corruption Act 2001, section 47 or 48.”[14] (emphasis added)
  1. [36]
    There is no exhaustive definition of “complaint”.  It is defined[15] to include a report made under s 6A.1, but that is not relevant here.
  2. [37]
    Section 7.4 introduces the concept of “grounds for disciplinary action”.  Section 7.4 provides:

“7.4 Grounds for disciplinary action

  1. (1)
    The subject officer may be disciplined under this part if the subject officer has—
  1. (a)
    committed misconduct; or
  1. (b)
    been convicted—
  1. (i)
    in Queensland of an indictable offence; or
  1. (ii)
    outside Queensland of an offence that, if it were committed in Queensland, would be an indictable offence; or
  1. (c)
    performed the subject officer’s duties carelessly, incompetently or inefficiently; or
  1. (d)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (e)
    contravened, without reasonable excuse—
  1. (i)
    a provision of this Act or the Police Powers and Responsibilities Act 2000; or
  1. (ii)
    a code of conduct that applies to the subject officer; or
  1. (iii)
    a direction given to the subject officer by the commissioner under this Act or by a senior officer with authority to give the direction.
  1. (2)
    For subsection (1)(b), the subject officer is convicted if a court makes a finding of guilt, or accepts a plea of guilty, whether or not a conviction is recorded.”
  1. [38]
    When a complaint is received, the Commissioner or her delegate[16] must consider whether the conduct can be addressed by the imposition of professional development strategies.[17]
  2. [39]
    Section 7.10 concerns referral of the complaint to a prescribed officer.  It provides:

“7.10 Referral of complaint to prescribed officer

  1. (1)
    This section applies if—
  1. (a)
    the complaint mentioned in section 7.2 has been received by the commissioner; and
  1. (b)
    the commissioner has considered under section 7.9 whether to impose a professional development strategy.
  1. (2)
    The commissioner must decide whether to refer the complaint to a prescribed officer, having regard to the following matters—
  1. (a)
    any professional development strategy, or other management action, that has been implemented in relation to the subject officer;
  1. (b)
    whether implementation of any other professional development strategy would be sufficient to achieve the purposes mentioned in section 7.1(b);
  1. (c)
    the subject officer’s disciplinary history and service history;
  1. (d)
    the seriousness of the conduct to which the complaint relates;
  1. (e)
    whether it is necessary to take disciplinary action against the subject officer to achieve the purposes mentioned in section 7.1(b).” (emphasis added)
  1. [40]
    Here, Superintendent Hallam considered the imposition of professional development strategies, but referred the complaint to a prescribed officer, AC Carless. 
  2. [41]
    Section 7.11 authorises the commencement of “disciplinary proceedings” by a prescribed officer.  The term, “disciplinary proceedings” is defined in s 7.3 as:

“disciplinary proceeding means a proceeding against the subject officer under division 3 or 4.”

  1. [42]
    Section 7.11 provides:

“7.11 Requirements for starting disciplinary proceeding

  1. (1)
    This section applies if the commissioner has, under section 7.10, referred the complaint to a prescribed officer.
  1. (2)
    The prescribed officer may start a disciplinary proceeding against the subject officer if the prescribed officer reasonably believes there is a ground for disciplinary action against the subject officer.” (emphasis added)
  1. [43]
    Division 3 of Part 7 commences with s 7.15 and is entitled, “Abbreviated disciplinary proceedings”.  Division 4 commences with s 7.25 and is entitled “Process for hearings by prescribed officers”.  Division 3 has no relevance to the present dispute.  We will return to Division 4 later.
  2. [44]
    Section 7.11 refers to the “complaint”, but also to “a ground for disciplinary action”.  Those are the grounds identified in s 7.4.  We will return to the significance of this distinction.
  3. [45]
    Section 7.12 places limitation periods upon the commencement of disciplinary proceedings.  It provides, relevantly:

“7.12 When disciplinary proceeding must be started

  1. (1)
    A disciplinary proceeding against the subject officer must start within the latest of the following periods to end—
  1. (a)
    1 year from the date the ground for disciplinary action arises;
  1. (b)
    6 months from the date the complaint mentioned in section 7.2, or another complaint substantially relating to the same ground for disciplinary action, is received by the commissioner or the CCC …”
  1. [46]
    Section 7.13 explains when the ground arises so that time can be calculated under s 7.12.  Sections 7.15 to 7.24 concern Division 3 of Part 7 and can be ignored.
  2. [47]
    Section 7.25 is the first section in Division 4 of Part 7.  It provides:

“7.25 How disciplinary proceeding is started

A prescribed officer may start a disciplinary proceeding under this division by giving the subject officer a notice (a disciplinary proceeding notice) stating—

  1. (a)
    particulars of the alleged ground for disciplinary action (the disciplinary charge); and
  1. (b)
    that the subject officer may, within a stated period of at least 28 days, give the prescribed officer a written submission and other materials to show why disciplinary action should not be taken in relation to the disciplinary charge.”[18] (emphasis added)
  1. [48]
    Section 7.26 concerns the officer’s right to make submissions.  Section 7.27 provides that the prescribed officer must determine whether the disciplinary charge is proved.
  2. [49]
    If a disciplinary charge is proved, ss 7.28 and 7.29 are engaged.  They concern an officer’s right to make submissions on possible sanction.  Sections 7.30 and 7.31 can be ignored.  Section 7.34 defines “disciplinary sanctions” and then s 7.35 provides:

“7.35 Power of prescribed officer to impose disciplinary sanction

  1. (1)
    The prescribed officer may impose a disciplinary sanction on the subject officer that—
  1. (a)
    is mentioned in subsection (2); and
  1. (b)
    the prescribed officer considers is appropriate in the particular case.
  1. (2)
    For subsection (1)(a), the following disciplinary sanctions may be imposed—
  1. (a)
    if the prescribed officer is the commissioner—any disciplinary sanction;
  1. (b)
    if the prescribed officer is a deputy commissioner—any disciplinary sanction;
  1. (c)
    if the prescribed officer is an assistant commissioner—
  1. (i)
    suspension from duty without pay for not longer than 28 days; or
  1. (ii)
    demotion; or
  1. (iii)
    local transfer; or
  1. (iv)
    community service; or
  1. (v)
    a fine; or
  1. (vi)
    a reprimand;
  1. (d)
    if the prescribed officer is a commissioned officer—
  1. (i)
    community service; or
  1. (ii)
    a fine; or
  1. (iii)
    a reprimand.
  1. (3)
    In deciding the disciplinary sanction to be imposed, the prescribed officer must have regard to the following matters—
  1. (a)
    any considerations provided for in a guideline made under section 7.44;
  1. (b)
    the subject officer’s disciplinary history and service history;
  1. (c)
    any professional development strategies imposed on, or completed by, the subject officer in relation to the ground for disciplinary action.
  1. (4)
    For the removal of doubt, it is declared that the prescribed officer may impose more than 1 disciplinary sanction on the subject officer.”
  1. [50]
    It is unnecessary to refer to the other provisions of Part 7.

Consideration

  1. [51]
    In Norvill v Commissioner of Queensland Police Service & Anor,[19] the Court of Appeal described the scheme in Part 7 of the PSA Act as establishing four stages.  Relevantly here, Boddice J[20] wrote:

“[28] The first stage requires a determination by the Commissioner whether to impose a professional development strategy in respect of the officer the subject of the complaint.

[29] The second stage requires, having considered whether to impose a professional development strategy, a determination whether to refer the complaint to a prescribed officer.

[30] The third stage arises in the event the Commissioner has referred the complaint to a prescribed officer. The prescribed officer may start a disciplinary proceeding if that prescribed officer reasonably believes there is a ground for disciplinary action against the subject officer.

[31] At that stage, the prescribed officer may, in certain circumstances, make an offer pursuant to the abbreviated disciplinary proceedings set out in Division 3, or start a disciplinary proceeding pursuant to the provisions in Division 4. In either case, the Act expressly provides that the prescribed officer must give the subject officer relevant notice and afford that officer the opportunity to make written submissions in relation thereto.

[32] The final stage arises when the prescribed officer must decide whether the disciplinary charge or another ground for disciplinary action is proved and determine a sanction. Again, the Act expressly provides that the subject officer is first to be afforded a right to make submissions.”

  1. [52]
    Norvill concerned a dispute as to the duty of the Commissioner to afford procedural fairness to an officer before deciding not to impose a professional development strategy and proceed to discipline.  The stages identified in Norvill were those relevant to that issue.  There are further stages, namely the prescribed officer proceeding to impose sanction in the event of the disciplinary charge or other ground being proved. 
  2. [53]
    The prescribed officer is vested with power (which is clearly administrative in nature) to conduct a disciplinary proceeding.[21]  That power arises once “the complaint” is referred to the prescribed officer[22] and the prescribed officer “believes there is a ground for disciplinary action”.[23]
  3. [54]
    It is clear when reading ss 7.11, 7.12 and 7.25 that:
    1. (a)
      the prescribed officer identifies “grounds” for disciplinary action from the “complaint” referred; then
    2. (b)
      the disciplinary action is commenced alleging the “grounds”; and
    3. (c)
      the prescribed officer then determines whether the grounds are made out; which, if they are,
    4. (d)
      the prescribed officer is empowered to impose disciplinary sanctions.
  4. [55]
    The act which is critical to the vesting of power upon the prescribed officer is the referral of the “complaint”.  No power falls to the prescribed officer to decide anything beyond the “complaint”.  Such a scheme is not uncommon.  See, for example, Legal Services Commissioner v Madden.[24] 
  5. [56]
    Section 7.2 envisages receipt of a “complaint”.  A complaint can be sourced from another police officer,[25] but may also be received from a member of the public.  That is what occurred here.  Ms Gilfoyle made the complaint. 
  6. [57]
    Crucial is the meaning of the term, “complaint” as it appears in ss 7.10 and 7.11 of the PSA Act.  The “ground(s) for disciplinary action” must then, as we explain, emerge from the “complaint”.
  7. [58]
    In construing the relevant provisions, the aim is to construe the actual words used in the context of the legislation as a whole, and other relevant context, and having regard to the purpose of the provisions.[26]
  8. [59]
    Before the “complaint” is “referred” under s 7.10, it must be processed through the scheme established by ss 7.2, 7.9 and 7.10, especially s 7.10(2).  The purpose of such a scheme is obvious.  The Commissioner bears the “prescribed responsibility”,[27] including ensuring the efficient management of the QPS.  Discipline is part of that process.  The PSA Act operates to enable the Commissioner to receive a “complaint”, which is an allegation of improper conduct, but to then filter out what ought not proceed to disciplinary action.  What is left is the “complaint” which is referred to a prescribed officer.
  9. [60]
    After consideration of the prescribed factors in s 7.10(2), the Commissioner exercises a power to refer the “complaint”.  Where there is more than one complaint, in the sense of more than one act which might render an officer liable to discipline, the Commissioner may refer one, or all complaints.  In circumstances where the Commissioner refers some, but not all complaints, to the prescribed officer, no power vests in the prescribed officer in relation to the complaints not referred. 
  10. [61]
    Here, the notice of referral specifies three “matters”.  In context, they are the “complaints” that have been referred.  It is common ground that the disciplinary file has been provided to AC Carless which includes Sergeant Dunbar’s report and that, in substance, the complaints that have been referred are allegations 1, 2 and 3 as described in that report.  The three allegations include the particulars identified by Sergeant Dunbar.
  11. [62]
    Mr Black of counsel, who appeared for SC Langerak, submitted that the “complaint” is each of the three allegations contained in the referral document which appears in paragraph [21].  He submitted that the particulars explain but do not expand the “complaint”. Ultimately what has been referred as a “complaint” is a matter to be determined upon an understanding of the referral document in proper context.
  12. [63]
    The function of AC Carless is to consider the “complaint” and identify “grounds” by reference to ss 7.2 and 7.11 of the PSA Act.  He did that by referring to the Code of Conduct and identifying breaches. 
  13. [64]
    Provided that the grounds which now form Matter 1 and Matter 4 arise from allegations 1, 2 and 3 in the referral document as particularised in Sergeant Dunbar’s report, AC Carless has power to prosecute Matter 1 and Matter 4 in disciplinary proceedings.
  14. [65]
    Ms Freeman of counsel for the QPS submits that both Matter 1 and Matter 4 arise from allegation 2 in the referral document as particularised in Sergeant Dunbar’s report.
  15. [66]
    Allegation 2 in Sergeant Dunbar’s report alleges, among other things, that SC Langerak involved herself in legal proceedings “inappropriately”.  There is no distinction in substance between that allegation and allegation 2 in the referral document that the involvement was outside of her legal duties.  Part of the improper conduct alleged in Sergeant Dunbar’s report was acting in a position of conflict of interest.  This is made clear from the passage under the heading, “Reasons” and the passage underlined under “Relevant Matters”, both underlined in the passages set out at paragraphs [18] and [19] of these reasons.
  16. [67]
    The particulars of Matter 1 have been provided by AC Carless as follows:

“i. On 11 March 2018, Mr. Brett Ericsson was arrested and charged with offences of assault occasioning bodily harm and choking, suffocation or strangulation in a domestic setting that occurred at Emerald. The victim of these offences was Ericsson’s previous de-facto [redacted];

ii. In September 2018, you commenced a personal relationship with Brett Ericsson and you later moved in together;

iii. Mr. Ericsson engaged solicitor Julie Gilfoyle to legally represent him and provided authority for you to be privy to all correspondence with regards to his case. Mr. Ericsson was ultimately sentenced to a term of imprisonment after being found guilty in the Emerald District Court on 7 November 2019;

iv. On or about 13 February 2019, you completed an Application for a Private Domestic Violence Protection Order on behalf your partner Ericsson naming him as an aggrieved and (victim) [redacted] as a respondent (Appendix 28). This private application for a protection order was subsequently withdrawn (Appendix 30);

v. Between 10 June 2019 and 7 November 2019, you prepared the affidavits of five (5) defence witnesses to support your partner Ericsson; (Appendix 11)

vi. On 24 June 2019, you completed an Application to Vary a Domestic Violence Order on behalf of your partner Ericsson to include you as a named person. (Appendix 29);

vii On 4 November 2019 during the District Court trial of Mr. Ericsson, you conducted surveillance of prosecution witnesses involved in that trial (Appendix 31 - excerpt of Appendix 27). You forwarded a photograph of vehicles parked outside an address via text message to Solicitor Julie Gilfoyle and stated: ‘They are all at [redacted] - all of them’;

viii. On 4 November 2019, you sought a list of jury members for the trial of your partner from Solicitor Gilfoyle via text message, for matters that were before the Emerald District Court, stating ‘are we able to get a list of the jury?’. (Appendix 31 - excerpt of Appendix 27);”

  1. [68]
    These particulars all emerge from the particulars of allegation 2 in Sergeant Dunbar’s report.  Those particulars, if proved, may or may not establish Matter 1, but they are within the “complaint” referred to AC Carless.  It is not suggested that he has not formed a reasonable belief that these allegations form a ground for disciplinary action against SC Langerak.
  2. [69]
    Therefore, the “grounds” supporting Matter 1 are within the “complaint” referred to AC Carless under s 7.10 of the PSA Act and he has power to proceed with disciplinary action in relation to Matter 1.
  3. [70]
    Matter 4 is based on the passage in Sergeant Dunbar’s report which is underlined and appears under the heading, “Further and better particulars” set out at paragraph [19] of these reasons.  That passage refers to Appendix 29 which is an application by SC Langerak to vary a Domestic Violence order which had been obtained by Mr Ericsson against his former partner.  The variation was to add SC Langerak as a named person to the order.  What is said to be improper was referring to the complaint made by Mr Ericsson’s former partner against SC Langerak as a basis for that application.
  4. [71]
    The particulars of Matter 4 are:

“xxx. On 24 June 2019 the QPS Complaint and Client Service Reporting - Complaint Management Policy was in effect. Section 2 ‘Confidentiality of Complaints’ directed that all members who became aware of the details of a complaint were not authorised to disclose the details unless authorised by the policy or s.7.2 of the Police Service Administration Act 1990;

xxxi. On 24 June 2019, in an entirely private capacity, you completed an Application to Vary a Domestic Violence Order on behalf of your partner Ericsson to include you as a named person. (Appendix 29). During this application you disclosed confidential Queensland Police Service information relating to a disciplinary complaint raised by [redacted] against you, to support your grounds for the variation;

xxxii. Specifically you stated: ‘On June 21 2019, the partner of the aggrieved (who is a serving police officer) was notified of a complaint made by the respondent on 30 January 2019 (4 days after the property was dropped off and collected). The complaint was of a criminal matter and the respondent made an official complaint that Senior Constable Jade Langerak of Petrie Police Station unlawfully accessed the Queensland Police Service database. The respondent also alleged that Senior Constable Jade Langerak used the Queensland Police Service database to obtain information of the respondent pertaining the respondent’s current address. The complaint was finalised via the Queensland Police Ethical Standards Command after their investigation and inquiries revealed there was no evidence to support the serious allegation of conduct. It is requested the current temporary domestic violence order be varied to name Senior Constable Jade Langerak as a named person on the order to protect her professional and personal reputation in which the respondent has clearly made a vexatious and completely false and serious allegation against’.

xxxiii. You were not authorised to disclose the details of that complaint in the circumstances.”

  1. [72]
    The particulars follow those in Sergeant Dunbar’s report and quote from the application referred to in that report.
  2. [73]
    Assistant Commissioner Carless has sought to identify “grounds” as he could do under s 7.11.  He did so by identifying the use of the information as a breach of the Complaint and Client Servicing Reporting - Complaint Management Policy. 
  3. [74]
    Disclosure of information contrary to the policy is within allegation 2 in the referral document.  Acting in that way (if proved) must be acting outside of SC Langerak’s “lawful duties”. 
  4. [75]
    Mr Black submits that Sergeant Dunbar’s report does not refer to the disclosure being unauthorised.  The “complaint” is the use of the document.  Whether the QPS proves that the use was unauthorised, or whether SC Langerak proves it was authorised, is a matter of proof, not jurisdiction to bring the charge.
  5. [76]
    Assistant Commissioner Carless has power to proceed with Matter 4.

Conclusions

  1. [77]
    There is no challenge to AC Carless’ power to prosecute disciplinary proceedings in relation to Matter 2 and Matter 3.  There is no need to make determinations or orders in relation to those.
  2. [78]
    We conclude that AC Carless has the power to prosecute Matter 1 and Matter 4 and we rule accordingly.
  3. [79]
    It is appropriate to formally rule as follows and we do so:

“The prescribed officer, Assistant Commissioner Carless, is authorised to start disciplinary proceedings on what he has described as “Matter 1” and “Matter 4”.

Footnotes

[1]Portions of the report appear below, complete with typographical and grammatical errors as appear in the original.

[2]A reference to SC Langerak.

[3]“Subject Member”, a reference to SC Langerak.

[4]Police Service Administration Act 1990, s 4.10.

[5]Police Service Administration Act 1990, ss 7.5, 7.9 and 7.10.

[6]Police Service Administration Act 1990, ss 7.3 and 2.2(2).

[7]Set out at paragraph [12] of these reasons.

[8]Section 1.3.

[9]Police Service Board v Morris (1985) 156 CLR 397 and Nugent v Stewart (Commissioner of Police) & Anor (2016) 261 A Crim R 383 at [9] and [10].

[10]Section 2.3.

[11]Section 4.8(1).

[12]Section 1.4.

[13]Section 4.9(1).

[14]Notes omitted.

[15]Section 7.3.

[16]Section 4.10.

[17]Definition of “professional development strategy”, see s 7.3, and see ss 7.5 and 7.9.

[18]Notes omitted.

[19][2022] QCA 104.

[20]With whom Sofronoff P and Fraser JA agreed.

[21]Section 7.11 and Part 7 Division 4.

[22]Section 7.10.

[23]Section 7.11.

[24][2009] 1 Qd R 149.

[25]Section 6A.1 and definition of complaint s 7.3.

[26]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 and The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106.

[27]Section 4.8.

Close

Editorial Notes

  • Published Case Name:

    Langerak v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Langerak v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 327

  • Court:

    QIRC

  • Judge(s):

    Davis J, President, O'Connor VP, Merrell DP

  • Date:

    19 Aug 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
Legal Services Commissioner v Madden (No 2)[2009] 1 Qd R 149; [2008] QCA 301
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 149
Cite 2 - [2009] 1 Qd R 149
Norvill v Commissioner of Queensland Police Service(2022) 11 QR 9; [2022] QCA 104
2 citations
Jump To
Cite 1 - [2022] QCA 104
Cite 2 - [2022] QCA 104
Nugent v Stewart (Commissioner of Police) (2016) 261 A Crim R 383
2 citations
Jump To
Cite 1 - (2016) 261 A Crim R 383
Cite 2 - (2016) 261 A Crim R 383
Police Service Board v Morris & Martin (1985) 156 CLR 397
2 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
R v A2 (2019) 93 ALJR 1106
1 citation
Jump To
Cite 1 - (2019) 93 ALJR 1106
R v A2 (2019) 269 CLR 507
1 citation
Jump To
Cite 1 - (2019) 269 CLR 507
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

Cases Citing

Case NameFull CitationFrequency
Cousins v State of Queensland (Queensland Police Service) [2022] QIRC 4913 citations
Legal Services Commissioner v Li [2023] QCAT 3832 citations
LSA v Queensland [2024] QSC 102 1 citation
Self and Bishop v State of Queensland (Queensland Police Service) [2024] QIRC 2712 citations
1

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