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CITE

Notable Unreported Decision

Kitching v Queensland Commissioner of Police[2010] QSC 303P Lyons J
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Kitching v Queensland Commissioner of Police[2010] QSC 303

SUPREME COURT OF QUEENSLAND

CITATION:	Kitching & Anor v Queensland Commissioner of Police & Ors [2010] QSC 303
PARTIES:	RAYMOND JOSEPH KITCHING (first applicant) DARREN ALLEN ROBINSON (second applicant) v QUEENSLAND COMMISSIONER OF POLICE (first respondent) HON. MARTIN MOYNIHAN AO QC (second respondent) CRIME AND MISCONDUCT COMMISSION (third respondent)
FILE NO/S:	SC No 6368 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	6 July 2010; 7 July 2010; 2 August 2010
JUDGE:	Peter Lyons J
ORDER:	The declaration sought in paragraph 5 of the Amended Originating Application is refused A declaration is made in terms of paragraph 133 of these reasons The question of costs is reserved; the further hearing of applications as to costs is adjourned to a date to be fixed
CATCHWORDS:	ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS – applicability to administrative decision – test for apprehension of bias ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS – limited participation by decision maker at review hearing – whether limited participation appropriate – whether relevant to discretion to refuse relief PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - APPROPRIATE FORM OF RELIEF - DISCRETION OF COURT – whether question hypothetical Crime and Misconduct Act 2001 (Qld), s 15, s 46(1)(b), 46(2)(b), s 48(1)(c), s 48(2), s 69(1)(b) Criminal Code Act 1899 (Qld), s 204 Police Service Administration Act 1990 (Qld), s 1.4, s 2.2, s 4.8, 4.10 Barton v R (1980) 147 CLR 75, cited Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9, considered Brown v West (1990) 169 CLR 195; [1990] HCA 7, cited Commissioner of Police v Reid (1989) 16 NSWLR 453, cited Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied Ibeneweka v Egbuna [1964] 1 WLR 219, cited Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56, cited Kestrel Coal Pty Ltd v Construction Forestry Mining and Energy Union [2000] QSC 150, applied Kioa v West (1985) 159 CLR 550; [1985] HCA 81, applied Medical Board of Queensland v Byrne(1958) 100 CLR 582, cited Metropolitan Fire and Emergency Services Board v Churchill [1998] VSC 51, distinguished Minister for Immigration and Multicultural Affairs v Jia Legeng (2000) 205 CLR 337; [2001] HCA 17, cited Murchison v Keating (No 2) (1984) 54 ALR 386, cited Newby v Moodie (1987) 78 ALR 603, cited Nicol v Attorney-General (Vic) [1982] VR 353, cited Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, cited R v Karounos (1995) 63 SASR 451, cited R v MG (2007) 69 NSWLR 20; [2007] NSWCCA 57, distinguished Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, applied Rees v Crane [1994] 2 AC 173, cited
COUNSEL:	T Carmody SC with T Gardiner for the applicants M Hinson SC with A Scott for the first respondent Kelly L F SC with J Allen for the second and third respondents
SOLICITORS:	Byrne Legal Group for the applicants Crown Law for the first respondent CMC Official Solicitor for the second and third respondents

On 19 November 2004 a man died while in police custody on Palm Island. On 27 September 2006, the Acting State Coroner (to whom I shall refer for convenience as the Coroner) delivered findings which included adverse comments about the police investigation (the initial investigation) into the man’s death (to which I shall refer as the death in custody). In December 2006, the Commissioner of Police formed an Investigation Review Team (IRT) to examine in detail criticisms of the Queensland Police Service (QPS) or its members arising from those comments. In May 2007 and again in May 2008, the third respondent (CMC) received complaints about the conduct of the QPS investigation into the death in custody, which it referred to the QPS.

On 24 November 2008, the QPS forwarded to the CMC a report relating to its investigations to that stage (the QPS Report). That report has been considered by the CMC, resulting in the issuing of a review of the QPS Report (the CMC Review). The CMC Review contained recommendations that the QPS give consideration to disciplinary proceedings against members of the QPS, including the applicants; and a specific requirement (the Requirement) relating to its recommendations.

The applicants were involved in the initial investigation. They have commenced proceedings which challenge the validity of the Requirement; and seek relief designed to prevent the Commissioner personally responding to the Requirement, and to prevent the CMC and its Chairman from taking further action against them.

Factual background

It should be noted that little of the history which led to the present application was the subject of formal proof. The parties at various times made reference to the CMC Review as a record of relevant events. I shall do the same ^[1].

It is convenient to commence with more detailed reference to the comments of the Coroner. Some, which are procedural, are not of great relevance for present purposes. Some, however, are (in varying degrees) of a serious nature, and relevant to the present proceedings. One was that the involvement of officers from Townsville and Palm Island in the investigation of the death in custody was inappropriate, and undermined the integrity of the investigation. Others related to the conduct of the police officer who arrested the deceased and who struggled with him a short time before his death. Others related to the conduct of the police officers sent to Palm Island to investigate the death.

The response of the Commissioner of Police was the formation of the IRT on 19 December 2006, to examine in detail any criticism of the QPS or its members arising from the inquest, or the Coroner’s findings.

The first complaint to the CMC about the conduct of the initial QPS investigation (the 2007 complaint) alleged misconduct. Indeed, it went so far as to allege that those involved in the investigation had committed criminal offences. The CMC, however, noted that the Coroner had not formed any reasonable suspicion that any person had committed a criminal offence. The CMC referred the 2007 complaint to the QPS for investigation. This referral was described in the CMC Review as being “subject to the CMC’s monitoring role by way of a review-before”, with reference being made to s 46(2)(b) of the Crime and Misconduct Act 2001 (Qld) (the CM Act).^[2] The CMC Review said of this referral that it noted in general terms that the allegations involved inadequate investigation and a lack of impartiality in the investigation of the death in custody, and that the CMC expected that the IRT would identify and address all relevant issues arising from the findings and criticisms of the Coroner ^[3].

Little information is provided about the second complaint to the CMC (the 2008 complaint), other than that it was based on the comments of the Coroner. The material indicates that it was referred to the QPS, “to be dealt with on the same basis as the May 2007 complaint”.^[4]

On 21 November 2008, the Commissioner of Police wrote to the then Chair of the CMC, enclosing the QPS Report. Reference was made to this letter on a number of occasions at the hearing, for various purposes, without objection. One purpose was to assist in understanding the background to and status of the QPS Report. The letter records that the Commissioner formed the IRT in December 2006, shortly after the Coroner’s findings were announced, and before any complaints had been made against members of the QPS, to address and investigate any criticisms of the QPS and its members, arising from the inquest into the death in custody. The letter also makes reference to discussions which had occurred between the QPS and the CMC at senior levels, and to officer level consultations and briefings. Further, the letter stated that the report was provided “for your overview as requested”.

Another purpose for which reference was made to the letter was to identify the recommendations of the QPS Report. In summary, they were that managerial guidance, correction, or chastisement, be provided to a number of officers associated with the investigation, on a range of issues.

The CMC’s review of the QPS Report has been carried out over a substantial period of time. On 23 December 2009, the first respondent wrote to the then Chairperson of the CMC in relation to the review. The letter anticipated possible outcomes of the review. It noted that there had been no consultation between the QPS and the CMC since the delivery of the QPS Report in November 2008. The letter sought the opportunity to comment on a draft version of the CMC Review prior to its distribution. That opportunity was provided when a draft copy of the CMC Review was sent to the first respondent under cover of a letter of 24 December 2009, which also advised that it was intended to give certain officers of the QPS the opportunity to comment on the draft before publication.

On 18 January 2010, the first respondent wrote to the acting Chairperson of the CMC, providing relatively extensive comment on the CMC Review. The letter included the following:

“The (QPS) supports the IRT review process, including the spirit and intent of the officer’s findings.”

It should be noted the CMC Review addresses not only the initial investigation after the death in custody, but also the IRT’s activities. It contains adverse comments about the officers who carried out the IRT investigation, as well as about other members of the QPS.

There was subsequent correspondence between the CMC and the Commissioner of Police. Some of it related to revisions to the draft CMC Review. One letter from the Commissioner of Police (dated 29 April 2010) sought the provision, with the final version of the CMC Review, of all supporting material and evidence relevant to potential misconduct applications.

The correspondence in this period included a letter of 28 May 2010 from the first respondent to the second respondent. That was written against the background that, on 14 May 2010, the findings of a further inquest into the death in custody were handed down, which included adverse comments on the police involved in the events relating to the death in custody and on those who carried out the initial investigation. In respect of those findings, the letter acknowledged that the QPS was in an untenable position to carry out an investigation. It suggested, as one option, that the CMC undertake investigations into matters raised by those findings, separately and independently from the review of the QPS Report; that on matters relating to the initial investigation where there was consensus between QPS and the CMC, managerial intervention would occur; and that residual concerns held by the CMC with respect to the IRT members be dealt with separately. The letter also made reference to a letter of 21 May 2010 in which the Commissioner had asked the CMC to consider taking some responsibility for the investigation of the adverse findings and any comments against police made by the Coroner in 2006, and again the comments resulting from the further inquest in 2010. The letter also records a statement released on 13 August 2008 and attributed to the CMC, recording the establishment of the IRT, and the CMC’s agreement to monitor the progress of its investigation. The letter also records that the 2007 complaint and the 2008 complaint were given an initial assessment, apparently by the CMC, as relating to official misconduct.

On 11 June 2010 the first respondent again wrote to the second respondent. By then, an announcement had been made of the proposed release of the CMC Review. The letter expressed the view that the investigation of all adverse issues raised by the comments of the Coroner in 2006, and the comments from the further inquest in 2010, needed to be finalised prior to consideration of the action to be taken against any officer of the QPS; and that the question of managerial intervention could be considered only after completion of those investigations.

In the meantime, on 7 June 2010, the second respondent wrote to the Chairperson of the Parliamentary Crime and Misconduct Committee, advising that the CMC Review was in final form, and seeking a direction, pursuant to s 69(1)(b) of the CM Act, to give the report to the Speaker. The Committee gave that direction on 10 June 2010.

On the morning of 17 June 2010, the first respondent was interviewed on the radio. His responses in relation to the CMC Review, which had not then been officially released, were cautious. However, he confirmed that his contract was due to expire at the end of October, and expressed enthusiasm for his reappointment.

Later that day, the CMC Review was released. The second respondent subsequently gave a televised press conference. His opening statement made reference to the need for integrity, impartiality, and competence within the QPS, and he then stated that police officers who do not act in accordance with the QPS’s high standards need to be supervised and brought to account. He then expressed views adverse to those who participated in the initial investigation, and to the members of the IRT. He then stated the first respondent was accountable for the conduct of the police force, and noted the first respondent’s support of the IRT’s investigation and its findings. He stated that the first respondent “must take tough and decisive action to deal with the issues that have arisen in this report … there can be no compromise here”. He stated that “unless decisive leadership action by the Commissioner and all senior members is taken now, the reputation of the Queensland Police Service and its members will be and will remain, seriously damaged.” He stated that the first respondent “must draw a line in the sand and hold his officers to the highest standards”.

After referring to the recommendations that the first respondent consider disciplinary action both against the officers involved in the initial investigation and against the IRT, the second respondent stated, “the Commissioner must be held accountable and must take responsibility for ridding the service of the self-protecting culture that has been allowed to grow and flourish”. He also referred to the CMC’s decision that if it was not satisfied with the first respondent’s intended course of action, it would take over responsibility and apply to the Queensland Civil and Administrative Tribunal (QCAT) to commence disciplinary proceedings.

In response to questions, the second respondent repeated the statement that the first respondent should “take decisive and strong action to deal with the situation … that’s what his obligation as Police Commissioner to do is and he should carry that out”. The second respondent stated that the first respondent should “face up to the situation that’s occurred under his stewardship…”. When asked whether there would be an impact on the first respondent’s next contract, the second respondent replied in the affirmative, “in the sense that the terms of that contract … have yet to be agreed and settled”. He continued, “I should have thought that the considerations that have arisen today will be taken into account in doing that”. In response to a question whether he supported the position of another officer of the CMC, the second respondent said “I’m not going to support anything other than to see that whether (the first respondent) takes the action that I expect him to take within the 14 days”.

When later asked whether the CMC should have the resources to investigate the QPS, the second respondent said that this was not the place to consider that question and continued, “I mean what we’ve got to do is get an answer from the Commissioner. And he either rises to the occasion or he doesn’t…I want him to decide what he thinks is the appropriate action and if I disagree with it, as I say, within 14 days he has to tell us and then we go to the Tribunal”. Later, the second respondent said that he expected to see a draft of any proposed contract for the continued employment of the first respondent.

Later again, the second respondent was asked whether the first respondent should also face some form of managerial action. The second respondent replied that the short answer was that the first respondent had to prove that he is going to deal with these issues effectively within 14 days. When asked whether the CMC was being too lenient on the QPS by referring questions of discipline to it, the second respondent said, “Well I think it’s a question of the senior management, the Commissioner and the senior officer has to step up and prove that there’re worthy of the confidence of the people of Queensland. And if they don’t, we’ll go to the Tribunal”.

On 18 June 2010 the ABC published an interview in which the second respondent said that the first respondent’s response to the Requirement would have “great weight” in the consideration of the terms and conditions of the re-appointment of the first respondent, in order to hold the first respondent to his obligations. The second respondent also said that the response “has to be right … he has to show that he’s going to grapple with the obvious problems that are out there”.

In another interview published by the ABC on the same day, the first respondent repeated his interest in the renewal of his contract. He also said, with reference to the Requirement, that he would “work day and night in those 14 days to get back to the CMC with a response” and that notwithstanding issues which “could make that difficult, I’ll do all I can to deliver on that”.

A news item on Channel 10 that evening included statements from the first respondent and the second respondent. In one, the first respondent acknowledged that relations between himself and the CMC were experiencing some difficulty. A reporter stated that the second respondent was still deciding whether to sign off on the first respondent’s new contract. At that point the second respondent is recorded as saying, “It has to be right, doesn’t it? He has to show that he’s going to grapple with the obvious problems that are out there.” Later in the report, the first respondent stated with reference to the Requirement, “I will do my best and I will work, you know, day and night if I have to to try and get this done”.

Also on 18 June 2010, the first respondent wrote to the second respondent seeking further material and other assistance, in relation to the Requirement. In a reply sent by facsimile the same day, the second respondent expressed the view that all of the material referred to in the CMC Review was available to the QPS; that other material sought was irrelevant; and that if assistance was required from a senior CMC officer, that could be discussed further.

On 22 June 2010, the first respondent wrote to the second respondent expressing the view that it was premature to conclude that no further investigation of members of the initial Palm Island Investigation Team was necessary. The second respondent replied on 24 June 2010, expressing strong disagreement with that view, and requiring that the first respondent’s report be “based solely on the material in the (CMC Review)”. The letter also stated that it was unnecessary to delay consideration of commencing disciplinary proceedings against those involved in the initial Palm Island investigation.

The present proceedings were commenced on 18 June 2010. On 25 June 2010, the first respondent, through his solicitor, sought an extension of time to comply with the Requirement, in part based on the fact that these proceedings had been commenced, and in part based on the expressed view that the second respondent’s public statements affected the ability of the first respondent to maintain a public appearance of impartiality in responding to the Requirement. The reply, by letter of the same date from the Official Solicitor at the CMC, rejected the suggestion that it would be disrespectful to the court to comply with the Requirement. The letter suggested that a report from the first respondent stating his intentions might well assist in the resolution of the litigation. The letter recognised that another officer might be appointed to consider taking disciplinary action. However, it repeated the requirement that the first respondent “commit to writing a course of action he intends to take in relation to the recommendations” in the CMC Review. The request for an extension of time was refused.

Notice was subsequently given of amendments to the application, including an injunction to restrain the first respondent from responding to the Requirement by 2 July 2010. The Official Solicitor at the CMC then advised the solicitors for the first respondent that the time for compliance with the Requirement was extended until close of business on 6 July 2010.

The application came on for hearing on 6 July 2010. Leave was granted to make further amendments to the application (I shall refer to the application, as amended, as the AOA). The hearing was not completed that day, and was adjourned until the following morning. A little later in the evening of 6 July, the CMC issued a press release pointing out that it had not received a request from the first respondent for an extension of time, nor had an application been made in relation to compliance with the Requirement, during the hearing that day. The press release also pointed out that the Requirement had been extended until close of business on 6 July 2010.

This provoked a highly unusual application. The first respondent sought an interim injunction, restraining him from complying with the Requirements, until the following day. The application was heard later in the evening. It was supported by the applicants, but opposed by the second and third respondents. The relief sought was granted, effective until midday on 7 July 2010.

The hearing resumed on 7 July 2010. Reference was made to s 204 of the Criminal Code Act 1899 (Qld), which makes it a criminal offence not to comply with a requirement of a statute. Section 48(2) of the CM Act requires a Public Official to comply with a requirement made under s 48(1)(c), the provision relied upon by the CMC for the Requirement. Reference having been made to these provisions, I invited Senior Counsel for the second and third respondents to seek instructions as to the CMC’s attitude to granting a further extension of the time within which the first respondent was to comply with the Requirement. Shortly before midday, I was informed that the CMC was prepared to grant an extension of the time for complying with the Requirement until 48 hours after the delivery of my judgment.

Subsequently, further written submissions were received from the parties, dealing with some specific questions raised by me; and a further oral hearing was held on 2 August 2010.

Issues

In the course of the hearing, I was told that the issues raised by paragraphs 4 and 6 of the AOA had been resolved on the basis of undertakings. It is, accordingly, unnecessary to give further consideration to those issues.

Paragraph 1 of the AOA seeks a declaration that the first respondent is disqualified in relation to certain actions consequent on the CMC Review. I shall later identify more specifically the proposed form of declaration. The declaration is sought on the basis of apprehended bias in relation to the first respondent. Paragraph 2 seeks a consequential injunction, as does paragraph 3, insofar as it relates to the first respondent personally. In view of the attitude of the first respondent, it was accepted by the applicants that, at this stage, it is sufficient to grant declaratory relief. The second and third respondent, however, have submitted that no declaration should be made.

In paragraph 5, the applicants also seek a declaration that the Requirement is beyond the CMC’s statutory authority or power, and is not binding on the first respondent.

Accordingly, the following issues remain for determination:

(a)whether the first respondent is disqualified on the basis of apprehended bias from personally acting in relation to the Requirement;

(b)if so, whether a declaration should be made to that affect;

(c)whether the Requirement is beyond power, and not binding on the first respondent.

It will be convenient to commence with the third of these issues. However, before doing so, it is necessary to identify the effect of a number of provisions of the CM Act, which provide context for those sections on which this issue turns.

Overview of CM Act provisions

Some provisions of the CM Act deal with its purposes. One purpose is continuously to improve the integrity of, and to reduce the incidence of misconduct in, the public sector.^[5] The primary means by which the CM Act’s purposes are to be achieved is the establishment of the CMC.^[6] The CMC is to help units of public administration to deal effectively, and appropriately, with misconduct, by increasing the capacity of those units of public administration to do so, while retaining with the CMC, power to investigate itself cases of misconduct, particularly more serious cases.^[7] The QPS is identified as a unit of public administration.^[8]

Important functions of the CMC relate to misconduct. Misconduct includes both official misconduct, and police misconduct.^[9] Official misconduct is conduct that could, if proven, be a criminal offence, or a disciplinary breach providing reasonable grounds for terminating the services of the holder of an appointment (official misconduct is the form of misconduct which is of principal importance in this case).^[10]

The CMC’s misconduct functions are to raise standards of integrity and conduct in units of public administrations; and to ensure a complaint about, or information or matter involving, misconduct is dealt with in an appropriate way.^[11]

How misconduct is to be dealt with is the subject of principles set out in s 34. They include cooperation, by virtue of which “to the greatest extent practicable” the CMC and units of public administration should work cooperatively, both to prevent misconduct, and to deal with misconduct. Another principle is capacity building, under which the CMC has a lead role in building the capacity of units of public administration to prevent and deal with cases of misconduct effectively and appropriately. A third principle is devolution, pursuant to which, with some qualifications, action to prevent and deal with misconduct in a unit of public administration should generally happen within the unit. A fourth is public interest, pursuant to which the CMC has an overriding responsibility to promote public confidence in the integrity of units of public administration, and, if misconduct happens, in the way it is dealt with.

Section 35 identifies some specific ways by which the CMC may perform its misconduct functions. They include referring complaints about misconduct within a unit of public administration, to a relevant public official, to be dealt with by that public official. Another is by dealing with complaints about official misconduct, by itself, or in cooperation with a unit of public administration. Yet another is investigating and otherwise dealing with, on its own initiative, the incidence, or particular cases, of misconduct throughout the State.

Section 40 specifically confers on the CMC power to issue directions about how and when public officials must notify it of complaints.

Subdivision 1 of division 4 of part 3 of chapter 2 of the CM Act deals with the role of the Commissioner of Police in relation to complaints. Under s 42(5), if the CMC refers a complaint about official misconduct to the Commissioner of Police, the Commissioner of Police must deal with the complaint in the way the Commissioner of Police considers most appropriate, subject to the CMC’s monitoring role. However, under s 42(6), the Commissioner of Police may ask the CMC to deal with a complaint about official misconduct, in cooperation with the Commissioner of Police. It should be noted that in s 42(1), the term “complaint” extends to information or matter notified to, or otherwise coming to the attention of, the Commissioner of Police; and that subsection requires the Commissioner of Police expeditiously to assess such complaints.

Section 45(1) gives the primary responsibility for dealing with complaints about, or information or matter involving, official misconduct, to the CMC. The CMC is given power to take a number of specific actions in relation to a complainant about, which in this context extends to information or matter involving, misconduct.^[12] Under s 46(2)(b), the CMC may refer a complaint about official misconduct to a public official (defined to include the Commissioner of Police ^[13]), to be dealt with by the public official, or in cooperation with the CMC, subject to the CMC’s monitoring role.

Section 48(1)(c) is the provision relied upon in the CMC Review for the Requirement. I shall discuss the provisions of s 48 in greater detail, a little later in these reasons.

The CMC Review and the Requirement

It is convenient at this point to say something further about the CMC Review. It is sufficient to make reference to chapter 13, which contains the CMC’s conclusions and recommendations. In respect of each applicant, the CMC Review expressed the opinion that there is evidence, which, if accepted by a prescribed officer, is sufficient to support consideration of disciplinary action for misconduct; and it was considered that the conduct of each applicant might involve official misconduct, and that there is evidence supporting disciplinary proceedings for official misconduct. In each case, the CMC recommended that consideration be given to commencing disciplinary proceedings against each applicant.

Chapter 13 also included a discussion of the QPS Report. It stated that the CMC could have no confidence in the integrity of the conclusions and recommendations from that report. It also stated the following ^[14]:

“Contrary to the view expressed by the Commissioner of Police, the CMC considers that the conduct of the members of the IRT is sufficiently serious to warrant consideration of disciplinary proceedings.”

The CMC Review also noted that the IRT gave detailed regular briefings about the investigation to the Commissioner of Police, who fully supported the findings of the IRT. There followed extensive critical comment of the conduct and findings of the members of the IRT. A recommendation was made that the QPS give consideration to disciplinary proceedings against the members of the IRT. This was followed by the Requirement, expressed in the following terms ^[15]:

“ 3. Requirement for the QPS to report to CMC

To enable the CMC to be satisfied about the adequacy and appropriateness of the QPS response to its recommendations concerning disciplinary proceedings, pursuant to section 48(1)(c)(i) of the CM Act, the CMC requires the Commissioner of Police to report in writing to the CMC within 14 days about the outcome of his consideration of the CMC's recommendations, specifically:

•what course of action is intended to respond to the recommendations

•the reasons for that course of action.

If the CMC is satisfied it will refer the matter back to the Commissioner to proceed with the intended course of action.

However, if the CMC is not satisfied – that is, if the CMC is of the view that the intended action will not achieve the purposes of discipline – the CMC will assume responsibility for the matter and make application to the Queensland Civil and Administrative Tribunal (QCAT) to commence disciplinary proceedings.”

This was followed by more broadly-based adverse comment about the QPS. There then appeared the following passage relating to the first respondent ^[16]:

“Commissioner's responsibilities

The Commissioner sets the standards against which the members of the QPS are measured.

It is his responsibility to maintain the standards and promote public confidence.

The CMC grants – as the Commissioner has noted – that within the QPS, 'as with any large police department ... there will each year be events that range from honest mistakes and errors of judgement, [through] misconduct, ... [to] at the more serious end official misconduct and acts that amount to statutory offences'.

However in this case, while he has 'always publicly acknowledged that the initial investigation on Palm Island should have been different and undertaken better than it was', the Commissioner fails to acknowledge or understand the seriousness of the essential failings of that investigation.

The Commissioner also appears unable to recognise the failings of the IRT's investigation.”

The CMC Review ended with the following:

“Conclusion

In September 2006, the Acting State Coroner stated at page 11 of her inquest findings:

‘The response by senior police officers to this inquest should be cause for some reflection. There was little acknowledgement that the investigation by the police was deficient. Clear directives from the Police Commissioner and a commitment to ensure proper standards of investigation are required to restore public confidence.’

More than three years later, based on the CMC's analysis of the Palm Island Review, it appears little has changed.

The Commissioner of Police is responsible for the culture in which the flawed Palm Island Review was produced, and hence he must be held accountable for it.

The Commissioner asserts that he is well aware of his responsibilities as Commissioner of the Queensland Police Service, has always accepted those responsibilities and will continue to do so.

The CMC looks to the Commissioner of Police to acknowledge the unacceptable conduct of the members of the initial QPS investigation team and the flawed Palm Island Review and now take appropriate action to restore the confidence of the public, and of its own members, in the Service.”

Validity of Requirement

The Requirement itself makes reference to s 48(1)(c) of the CM Act. However, the submissions of the first respondent pointed out that “a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed”.^[17]

The submissions made on behalf of the second and third respondents relied on s 46(1)(b) of the CM Act as an alternative source of the power to make the Requirement. It provides that the CMC deals with a complaint about misconduct by taking the action it considers most appropriate, having regard to the principles set out in s 34 of the Act. There are, in my view, difficulties in giving this provision the effect which the second and third respondents submit should be given to it.

A significant difference between s 46(1)(b) and s 48(1)(c) is that in the latter case, s 48(2) creates an obligation to comply with the requirement. That consequence is not attached to an action done under s 46(1)(b). It is clear from the CMC Review that the third respondent wished to impose a binding requirement on the first respondent. It seems to me that this is a case where the decision of the third respondent to act under s 48 (1)(c) is of some significance.

Moreover, a consideration of the context provided by the CM Act, in my view, leads to the conclusion that, notwithstanding the generality of the language used in s 46(1)(b), it does not extend to the imposition of a binding requirement on another person or entity. Section 46(1)(b) expressly links the taking of action by the third respondent with the principles set out in s 34. One of those principles is cooperation. Counsel for the second and third respondent submitted that s 34 itself includes a requirement. That submission does not reflect the language, or general tenor, of this section. Section 34 takes the form of an expression of the intention of Parliament. Specific provisions of the section use language consistent with this form (e.g., “should work”; “should generally happen”). The principle of cooperation, in particular, but also the principles of capacity building and devolution, point to an absence of an intention to confer on the third respondent a power to make requirements, by the general language of s 46(1)(b). On the other hand, there are express powers conferred on the third respondent, in limited and specified circumstances: to issue directions (see s 40); and to make a requirement (s 48)(1)(c)). That seems to me to suggest that s 46(1)(b) is not intended to confer a general power to make requirements of others. The conferral of an express power to issue advisory guidelines for the conduct of investigations by public officials into official misconduct ^[18] also indicates that s 46(1)(b) does not include an extensive conferral of power. That conclusion is further supported by reference to s 46(2), specifying particular actions which the CMC is authorised to take in relation to complaints.

I therefore conclude that s 46(1)(b) of the CM Act does not authorise the third respondent to impose a binding requirement on the first respondent.

I turn then to consider whether the Requirement is authorised by s 48(1)(c). Section 48 includes the following:

(1) The commission may, having regard to the principles stated in section 34—

(a) issue advisory guidelines for the conduct of investigations by public officials into official misconduct; or

(b) review or audit the way a public official has dealt with official misconduct, in relation to either a particular complaint or a class of complaint; or

(i) to report to the commission about an investigation into official misconduct in the way and at the times the commission directs; or

(ii) to undertake the further investigation into the official misconduct that the commission directs; or

(d) assume responsibility for and complete an investigation by a public official into official misconduct.

(2) The public official must—

(a) give the commission reasonable help to undertake a review or audit or to assume responsibility for an investigation; and

(b) comply with a requirement made under subsection (1)(c).

The applicants first submit that the Requirement is not a requirement for a report about an investigation into misconduct; rather, correctly characterised, it is a demand for disciplinary action.

It seems to me that, in dealing with this submission, it is necessary to focus on the Requirement itself. Its character is to be identified by an analysis of its language. It was to that (assuming the validity of the Requirement), that the first respondent had to respond. External factors, such as, for example, statements of the second respondent, do not alter its character, notwithstanding that they might have significance in another context.

The first thing to be noted about the Requirement is that it requires a report, in writing, to the CMC. The second thing to note is that it envisages further consideration by the first respondent, specifically of the CMC’s recommendations set out in the CMC Review. The genesis of the CMC’s recommendations is its review of the IRT investigation into the conduct of certain members of the QPS. For reasons which appear later, I consider that the IRT investigation is an investigation into conduct, and in particular, official misconduct.

The Requirement calls for not only the identification of the course of action proposed by the first respondent, in response to the recommendations in the CMC Review; it also requires the first respondent to identify the reasons for his proposed course of action. The Requirement then identifies courses of action proposed by the CMC. The decision about the course of action to be taken is made dependent upon the satisfaction or absence of satisfaction of the CMC with the first respondent’s proposal, no doubt including the reasons for that proposal.

It may well be said that the Requirement carries with it an implied suggestion that the appropriate response from the first respondent is a statement that he intends to commence disciplinary proceedings in the QCAT. That implication is supported by the comments made later in the CMC Review, with reference to the first respondent’s responsibilities, and in the conclusion to the CMC Review. Nevertheless, it seems to me that the Requirement is in truth a requirement to report to the CMC about an investigation. It seeks the first respondent’s conclusion about action to be taken in relation to the conduct which was the subject of the investigation, together with the identification of the reasons for the course of action proposed by the first respondent. The Requirement makes it clear that the CMC intends to consider the first respondent’s report; and by no means carries with it the implication that the CMC will commence proceedings in the QCAT if the first respondent does not propose that course. Rather, it is clear that the CMC intends to consider the first respondent’s report, including his reasons.

In my view, the Requirement is therefore a requirement to report about an investigation into misconduct. It is, however, necessary to consider whether it comes within s 48(1)(c).

The applicants submitted that the Requirement is not authorised by s 48(1)(c)(i) because it does not concern an investigation into official misconduct, within the meaning of that section. The submission seems to include the proposition that the Requirement relates to an investigation by the CMC; whereas an investigation referred to in s 48(1)(c)(i) is, so it was submitted, an investigation being carried out by a public official, such as the first respondent. It was also submitted that the investigation being carried out by the IRT had been completed, perhaps carrying with it the notion that the IRT was functus officio (as was the first respondent).

The submissions on behalf of the first respondent supported the proposition that s 48(1)(c)(i) refers to an investigation being conducted by a public official, and not by the CMC. The power is available, it was submitted, as a consequence of a reference of a complaint about official misconduct to a public official to be dealt with by the public official, under s 46(2)(b). It was also submitted that s 48(1)(c)(ii) provided a source of power for a further investigation by a public official, such as the first respondent.

The second and third respondents submitted in effect that the CMC Review was the result of an investigation conducted by the CMC which enlivened the power conferred by s 48(1)(c)(i). It was further submitted that the CMC Review “comes within the meaning of s 46(2)(b)” of the CM Act, thus, it was said, conferring on the CMC the power to impose a requirement under s 48(1)(c)(i). That submission suggests that the Requirement carried with it the notion of a referral of a complaint about official misconduct; and that in dealing with that complaint, the first respondent would inevitably have to undertake an investigation, in respect of which he could be required to report to the CMC under s 48(1)(c)(i). Support for this submission was said to be found in the definition of “deal with”, which includes “investigate the complaint, information or matter”; and in the definition of the word “investigate”, which includes “examine and consider”.^[19] The second and third respondents further submitted that the Requirement is also authorised by s 48(1)(c)(ii), on the basis that a previous investigation had been carried out, and the Requirement calls for further investigation to be undertaken by the first respondent.

An expression found in s 48(1)(c) which is important in the present case is “investigation into official misconduct”. The expression is not defined, though there is a definition of the expression “official misconduct” in s 15 of the CM Act. It is a consequence of the nature of an investigation into the conduct of a person that, at the outset, and indeed, for much of the course of the investigation, the true nature and full extent of the conduct, and the likely outcome of the investigation, are unknown. Yet the CM Act requires early, and obviously provisional, classification of conduct. Thus, the CMC must expeditiously assess a complaint about misconduct ^[20], and the action then to be taken under s 46(2) will depend on whether the complaint is treated as a complaint about official misconduct or police misconduct. The Commissioner of Police is also required expeditiously to assess complaints, information or matter, coming to his attention; and if misconduct is involved, to deal with it ^[21]. In the context of the CM Act, I do not think that a reference to an investigation into official misconduct is limited to an investigation into specific and particularised conduct which at all times can clearly be seen to satisfy the definition of official misconduct. In view of the definition of official misconduct, I consider that an investigation into official misconduct includes an investigation into conduct which, if proved, could reasonably be seen as providing a possible ground for terminating the services of the person whose conduct is the subject of the investigation, if the person is the holder of the appointment.

It is convenient at this point to note some other matters. The first respondent was responsible for the formation of the IRT. There can be little doubt that its work is fairly described as an investigation into the conduct of a number of members of the QPS, including the applicants.

At the hearing, reference was made to the QPS disciplinary regime contained in the Police Service Administration Act 1990 (Qld) (PSA Act). The provisions of this Act appear to provide a statutory context and basis for the conduct of the first respondent. Thus, s 4.8(1) makes the first respondent responsible for the efficient and proper administration, management and functioning of the QPS, in accordance with law. Section 4.8(2) identifies particular matters which come within the first respondent’s responsibility, one of which is discipline of members of the QPS.^[22] Section 4.8(3) then authorises the first respondent to do, or cause to be done, all such lawful acts and things as the first respondent considers to be necessary or convenient, for the efficient and proper discharge of the responsibility imposed on him by s 4.8. Section 4.10 authorises the first respondent to delegate powers conferred on him by statute, including powers to discharge the responsibility imposed by s 4.8.

The term “discipline” is not itself defined in the PSA Act. However, the first respondent’s responsibility for discipline of members of the QPS would undoubtedly extend to the taking of disciplinary action. The latter term is defined ^[23] to include action taken for misconduct, official misconduct, or a breach of discipline. The term “misconduct” is defined to mean a number of types of conduct, including conduct that shows unfitness to be, or to continue as, a police officer.^[24] The PSA Act also incorporates the definition of “official misconduct” from the CM Act.^[25] It would follow that the Commissioner’s responsibility under s 4.8 of the PSA Act extends to responsibility in relation to official misconduct by serving members of the QPS.^[26] The powers relating to discipline, which no doubt include the power to investigate conduct, are therefore capable of delegation by the first respondent.

Apart from provisions of the PSA Act and CM Act, no reference was made to any statutory basis for the formation by the first respondent of the IRT. If these actions are correctly identified as actions taken under the PSA Act, it by no means follows that the investigation carried out by the IRT was not an investigation into official misconduct.

The IRT was formed against the background of the comments by the Coroner. Some of those comments suggested serious misconduct. At the time when the IRT was formed, it could not be said that the conduct under investigation would not amount to official misconduct as defined in the CM Act.^[27] It was not suggested to me that the conduct which was being investigated by the IRT could not have led to the dismissal of the applicants; nor was any evidence led to demonstrate that. It therefore seems to me that the investigation initially undertaken by the IRT can fairly be described as an investigation into official misconduct; or at least, the applicants have failed to demonstrate the contrary. Indeed, by the end of the hearing, it did not seem to be in issue that the IRT investigation could be characterised as an investigation into official misconduct, carried out under delegation from the first respondent.

There is a suggestion in the submissions that s 48(1)(c)(i) relates to an investigation into official misconduct referred by the CMC to a public official, such as the first respondent. In my view, the power conferred by that provision is not limited to investigations referred to the public official by the CMC, whether under s 46(2)(b), or in some other way. The language used in s 48(1)(c)(i) is not expressly limited to a referred investigation. It seems to me that public officials, including the Commissioner of Police, may well commence investigations into official misconduct independently of a referral by the CMC ^[28]. Given that the CMC has primary responsibility for dealing with complaints about, or information or matter involving, official misconduct,^[29] it seems to be likely that the legislature intended to confer a power to require reporting in all cases where a public official investigates official misconduct, and not simply in cases where that is a consequence of a referral under s 46(2)(b). I would therefore interpret s 48(c)(i) as applying to any investigation of official misconduct by the Commissioner of Police, whether or not it is the result of a referral by the CMC.

In any event, the question may not arise in this case. It is inherently likely that the CMC was, from the outset, aware of the investigation being carried out by the IRT. Correspondence from the first respondent refers to liaison with the CMC. The referrals of the complaints received in May 2007 and May 2008 by the CMC to the IRT confirm this awareness. It may be arguable that there had, at the outset, been an informal referral by the third respondent to the first respondent, under s 46(2)(b), of the matters raised by the Coroner’s comments. While there is no direct evidence of such a referral, it can at least be said that the applicants have not demonstrated that the IRT investigation is not the result of an informal referral by the CMC.

However, the 2007 complaint and the 2008 complaint were said to have been referred by the CMC “to the QPS to deal with, subject to monitoring by the CMC”.^[30] The CMC Review relies upon s 46(2)(b) of the CM Act in relation to the referral of the 2007 complaint ^[31] (the first referral). Reliance on that provision carries with it the proposition that official misconduct was involved. The 2007 complaint was based in part upon the comments of the Coroner. It related to the conduct of those who carried out the initial QPS investigation into the death in custody. The conduct was regarded by the complainant as sufficiently serious to warrant criminal prosecution, although the third respondent noted matters which would not support that view. The referral was stated to be subject to the third respondent’s monitoring role under the CM Act, by way of what is called a “review-before”,^[32] described elsewhere as a request that the QPS provide a report for the CMC to review, prior to finalisation of the matter.^[33]

The CMC Review included a statement with respect to the first referral that “(t)he CMC expected that the IRT would identify and address all the relevant issues from the findings and criticisms of the acting State Coroner”.^[34] It may be that that statement reflects the content of the first referral; or that it is no more than a comment about the state of mind of the members of the CMC. If the former, the referral of this complaint included a referral of all matters arising from the comments of the Coroner.

The first referral itself is not in evidence. It may have been addressed to the first respondent. The CMC Review indicates that it was made under s 46(2)(b), which authorises a referral to the first respondent. In any event, the IRT had been formed by the first respondent to carry out an investigation. I have previously discussed the first respondent’s powers and responsibilities in relation to conduct of serving members of the QPS, which may amount to misconduct, including official misconduct. The first respondent responded to the CMC by letter dated 20 November 2007, noting the complaint and its basis, and stating that the IRT had commenced work on the examination of the criticisms made by the acting State Coroner.^[35]

It seems to me, therefore, that the first referral may well be correctly characterised as a referral by the third respondent to the first respondent under the CM Act both of the complaint received in late May 2007, and issues arising from the comments of the acting State Coroner. Again, it can be said that the applicants have not demonstrated the contrary.

The CMC Review records that the 2008 complaint was referred “to the QPS to deal with on the same basis as the May 2007 complaint”; and that the third respondent, again, formally requested a report for its review prior to finalisation.^[36]

The CMC Review also records ^[37] that, “[d]uring the time that the IRT was conducting its investigation, the CMC provided material to the IRT to assist in their examination of the relevant issues. Meetings were also held on a number of occasions between the members of the IRT and various CMC officers.”

While it is not entirely clear whether this refers to events prior to the first referral, the knowledge of the first respondent as to the nature of the investigation being carried out by the QPS prior to the first referral rather supports that conclusion. In any event, in my view, this provides further confirmation of the characterisation of the IRT investigation which I have suggested.

On that basis, I consider that the IRT investigation may well have been an investigation into official misconduct as a result of a referral under s 46(2)(b), and thus an investigation into official misconduct for the purposes of s 48 (1)(c).

I consider that the stage which had been reached in the IRT investigation did not preclude the CMC from exercising the power conferred by s 48(1)(c)(i). There are a number of matters which lead me to this conclusion. The CM Act does not, in terms, preclude the exercise of the power conferred by s 48(1)(c)(i) after an investigation has been completed. Of its nature, an investigation is a process which may be recommenced at any time, for example, because new evidence becomes available, or because it is realised that further consideration is required. Moreover, it is not a process, the outcome of which alters status, rights, or legal relationships in some binding fashion. At most, it results in the formulation of conclusions and recommendations which are, of their nature, provisional. Given the primary responsibility and monitoring role conferred on the CMC in relation to official misconduct, there is no reason to limit by implication the effect of this provision.

In any event, the QPS report was provided to the CMC for review prior to finalisation. If that step suggested some conclusion of the investigation, it was, at best, provisional; further examination and/or consideration may have been seen as necessary after review by the CMC, before the QPS Report could be released.

It follows from what has been said previously that the Requirement relates to an investigation into official misconduct, which was being carried out by the IRT as the first respondent’s delegate.

In summary, the applicants have failed to demonstrate that IRT investigation was not an investigation into official misconduct. They have failed to demonstrate, if that were relevant to the validity of the Requirement, that the IRT investigation was not the consequence of a referral by the third respondent to the first respondent under s 46(2)(b). They have otherwise failed to demonstrate that the Requirement was not authorised by s 48(1)(c)(i). It is unnecessary to consider the remaining submissions of the second and third respondents.

Apprehended bias

Mr Carmody SC who appeared with Mr Gardiner of Counsel for the applicants, submitted that, in considering whether to take disciplinary action against the applicants in response to the CMC’s recommendations, the first respondent’s position is to be determined by reference to the principles relating to apprehended bias set out in Ebner v Official Trustee in Bankruptcy.^[38] When invited to make a submission on this question to assist the court, Mr Hinson SC, who appeared for the first respondent, made reference to the same test. Mr LF Kelly SC, who appeared with Mr J Allen of counsel for the second and third respondents, initially submitted that the first respondent was subject to natural justice obligations. While he also said at one point that his clients were in “furious agreement” with the applicants on this topic (though, obviously, not with respect to the specific matters relied upon for a conclusion that by reason of apprehended bias, the first respondent should not personally make a decision about the CMC recommendation), he later submitted that the principles of apprehended bias did not apply to the first respondent.

Mr Hinson referred me to the following statement by Mason J from Kioa v West:^[39]

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”

His Honour went on to observe that the application and content of the doctrine of natural justice or the duty to act fairly, depends to a large extent on the statutory context; and that procedural fairness conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.^[40]

In Ebner v Official Trustee in Bankruptcy^[41] it was recognised that the principles of apprehended bias are not limited to judicial decisions, but extend to many other kinds of decision making and decision maker. However, that extension must recognise and accommodate differences between court proceedings and other kinds of proceedings. In Minister for Immigration and Multicultural Affairs v Jia Legeng^[42] it was again recognised that administrative decisions may be reviewed if apprehended bias is established. Nevertheless, a question remains whether these principles extend to a decision by the first respondent to commence disciplinary proceedings against the applicants.

In support of the position ultimately taken by the second and third respondents, it was submitted that the first respondent is not a decision maker for the purposes of the principles of apprehended bias. In that context, attention was drawn to the terms of the Requirement, which make it necessary for the first respondent to consider the CMC’s recommendations, to identify a proposed course of action, and to set out the reasons for that course of action. The taking of those steps is the result of a report. His position was contrasted with somebody who conducts a hearing of a disciplinary charge.

Reliance was placed upon Metropolitan Fire and Emergency Services Board v Churchill.^[43] In that case it was held that, in general, a decision maker was subject to the principles relating to apprehended bias;^[44] but, for the particular hearing under consideration, that the doctrine of necessity applied, which had the consequence that the decision maker could hear and determine charges brought against the defendant, notwithstanding that the circumstances satisfied the test for apprehended bias.^[45] The specific finding in Churchill on which the second and third respondent rely relates, however, to an anterior decision. That was a decision by the Chief Fire Officer as to whether he would himself hear the charges, or refer them to the President. It was submitted that the person charged was entitled to a hearing on the question who should hear the charges. That submission was rejected.^[46] It will be observed that the decision related not to the inapplicability of the principles of apprehended bias, but to the question whether a party has a right to be heard. Moreover, it seems to me that a decision as to whether disciplinary proceedings should be brought is of a different character to a decision about who should hear them.

The second and third respondents also relied upon the decision of the High Court in Medical Board of Queensland v Byrne.^[47] Under legislation then in force, the opinion of the Medical Board of Queensland as to the character of a particular offence was a condition of its power to lay a charge against a medical practitioner before the Medical Assessment Tribunal. It was submitted on behalf of the medical practitioner that the opinion of the Board was binding on the Tribunal, and that accordingly the opinion of the Board had not been validly formed because the practitioner had not been heard in relation to the formation of the opinion. It was held that the opinion was not binding, but was simply a safeguard to prevent the commencement of proceedings before the Tribunal based upon convictions for offences which did not call for disciplinary action by the Tribunal.^[48] McTiernan J linked this consideration with the question whether the practitioner had a right to be heard in relation to the formation of the opinion by the Board.^[49] It should be noted that in Byrne’s case, the central issue (and, it would appear, the only issue on which the practitioner relied) was whether the opinion of the Board was final and binding in the proceedings before the Tribunal.

In this context I was referred to R v Karounos.^[50] In that case, a convicted appellant sought to have the conviction set aside on the basis that prosecuting counsel had had other involvement in the investigation of the appellant and associated companies. King CJ (with whom Mohr J agreed) held that pre-trial involvement in the case should not disqualify a barrister from appearing as counsel for the prosecution at the trial.^[51] However his Honour referred to the duties which fell on a prosecutor, including a duty to act with fairness.^[52] The third member of the court, Olsson J apparently considered that the principles relating to bias and apprehended bias applied, but found that no bias was established.^[53] In my view, this case provides little support for the proposition that the Commissioner of Police is not subject to the principles of apprehended bias, when making a decision to institute disciplinary proceedings.

Reliance was also placed on Commissioner of Police v Reid.^[54] Section 341 of the Crimes Act 1900 (Cth) made it necessary to obtain leave to institute proceedings for perjury. The majority held that the hearing rule did not apply to the leave application. Two grounds were identified. One was that in circumstances where the Act intended that notice be given, it made express provision for that. The second was that the decision to grant leave was itself a step anterior to the decision to initiate proceedings, and in respect of that decision, there is significant authority to the effect that the hearing rule does not apply.^[55] Priestley JA in dissent referred to the decision of Mason J in Kioa, and by reference to the principles there stated, and the provisions of s 341, concluded that in the ordinary case, an application for leave should not be made without notice to the person the subject of the proposed charge.

One decision relied upon in Reid for the proposition that a decision to commence criminal proceedings does not require the observance of the principles of natural justice is Murchison v Keating (No 2).^[56] That was an application for an interlocutory injunction, in the course of which Morling J considered the question whether the rules of natural justice applied to a Minister of the Crown when giving consent to the commencement of a prosecution. His Honour observed that the giving of such consent did not affect the rights of the applicant; and made reference to Nicol v Attorney-General (Vic),^[57] in which reliance was placed upon the fact that such a consent did not determine questions of rights and liabilities; and on the accountability of a Minister, not to the courts, but to Parliament, for the manner in which a discretionary authority is discharged.^[58]

The other decision relied upon in Reid is Newby v Moodie.^[59] There, Fox J held, on the basis of authority, that the exercise of the discretion to prosecute is not open to review in courts.^[60] The principal authority relied upon was Barton v R,^[61] which ultimately turned on the conferral on the Attorney-General for New South Wales of “the unexaminable discretion possessed by the Attorney-General in England acting on behalf of the Crown”.^[62] In the same case, Wilson J referred to the “very distinctive type of statutory power” to commence a prosecution, as “retaining in its relationship to the process of criminal justice something of the nature of a prerogative power”.^[63]

A number of the decisions referred to up to this point rely on the fact that a decision to commence proceedings is not determinative of rights. They do not reflect the broader view, taken since Kioa, that the doctrine of natural justice applies to decisions which affect interests and legitimate expectations; nor the recognition in Ainsworth v Criminal Justice Commission^[64] that reputation is such an interest. To the extent that these decisions relate the decision to prosecute to the unexaminable discretion conferred on the Attorney-General, and ultimately to a prerogative power, they do not provide a particularly close analogy to a decision by the Commissioner of Police to institute disciplinary proceedings. The authors of Judicial Review of Administrative Action^[65] express the view that there is an explicable discrepancy between the approach taken to the applicability of natural justice considerations to a decision to prosecute, and the approach taken to the applicability of those considerations to a decision to commence disciplinary proceeding.

The applicants relied on R v MG,^[66] where it was held that a crown prosecutor had a duty to act fairly in the conduct of the trial;^[67] and that the court might intervene to prevent a particular prosecutor proceeding with the conduct of a trial, where that would create an apprehension in the mind of a reasonable person that the prosecutor may fail to maintain the requisite detachment necessary for the accused to have a fair trial.^[68] However, this decision was based on the right of an accused person to a fair trial. It did not deal with the decision to commence proceedings.

In Rees v Crane^[69] it was held that a judge was entitled to be heard on the question whether there should be an investigation into his ability to perform the functions of his office as a judge of the High Court of Trinidad, notwithstanding that at subsequent stages, he had a right to be heard. Their Lordships held that there is no absolute rule that natural justice does not apply to such investigations.^[70] The obligation to provide a right to be heard, even at a preliminary stage, resulted from the serious nature of the charges, the considerable publicity attaching to the decision to carry out the investigation, the consequences for the respondent’s reputation, and the identity of the person making the complaints.^[71]

It seems to me that an appropriate starting point is the statement by Mason J in Kioa that in general, there is a common law duty to act fairly in the making of administrative decisions which affect rights, interests and legitimate expectations. In terms, the statement referred to the accordance of procedural fairness, but it seems to me that the considerations which justify the proposition also warrant a similar approach to the question whether the principles of apprehended bias are engaged. The principles of natural justice are intended to ensure fairness to an individual. The principles of apprehended bias are intended to ensure that, and also the integrity of the decision making process. It seems to me that this conclusion is consistent with the propositions from Ebner and Jia referred to earlier.

There have been significant developments in this area of the law since Byrne was decided. Prejudicial effect on the rights of an entity is no longer the sole basis for implying the requirements of natural justice.^[72] Rather, a duty of procedural fairness arises, in circumstances where the power to be exercised is one which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”.^[73] Reputation is an interest which attracts the rules of natural justice.^[74]

A consideration of the statutory context provided by the PSA Act and the CM Act provides some support for that approach. I have previously made mention of provisions of the PSA Act relating to the powers of the Police Commissioner. Reference may also be made to s 2.3 of that Act, which includes as one of the functions of the QPS, “the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of … the power, duties and discretions prescribed for officers by any Act”^[75].

The expression “official misconduct” is defined in the CM Act^[76] as conduct of character there described. However, the term “conduct” is also defined;^[77] and its definition makes reference to the honest and impartial performance of functions and exercise of powers. Thus, conduct may be, in the case of a person who does not hold an appointment in a unit of public administration, conduct which adversely affects, or could adversely affect, “the honest and impartial performance of functions or exercise of powers” of a unit of public administration, or of a person holding an appointment in such a unit; and in the case of a person who holds an appointment in a unit of public administration, conduct which involves the performance of the person’s functions or the exercise of a person’s powers, “in a way that is not honest or is not impartial”. These definitions suggest the existence of an obligation of some kind falling on a person exercising a statutory power to do so impartially. Such an obligation may be found in s 2.3 of the PSA Act.

It seems to me, therefore, that the principles of apprehended bias apply to the Commissioner of Police when exercising powers relating to the misconduct of members of the QPS.

While the Requirement calls for a report to the CMC, that report is to record the course of disciplinary action which the first respondent intends to take in relation to the conduct of the applicants and other members of the QPS. While its nature is somewhat contingent, in that the CMC might intervene and take a different course, it nevertheless seems to me that the decision which the Requirement calls upon the first respondent to make is sufficiently closely related to the exercise of a power conferred by statute potentially to warrant the application of the principles of apprehended bias.

The initial events, their investigation in the Coroners Court, and the CMC Review have all attracted extensive publicity. It seems to me that a decision to commence disciplinary proceedings is likely to have consequences for the reputations of the applicants which are of some significance. A decision to commence proceedings in the QCAT is likely to be seen as confirmatory of the statements made in the CMC Review, and by the third respondent. The decision called for by the Requirement may therefore adversely affect an interest of the applicants which would warrant protection.

Accordingly, I am of the view that the principles relating to apprehended bias apply to the making of a decision in relation to the commencement of disciplinary proceedings, to which the Requirement is directed.

The test formulated in Ebner, notwithstanding that it refers to a judge, judicial officer or juror, provides a starting point for applying those principles. There, it was said:

“Where in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.” (citations omitted)

Further clarification of the apprehension of bias principle appears from the following:^[78]

“Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how a judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability …

The apprehension of bias principle admits of the possibility of human frailty … Its application requires two steps. First it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”

In Re Refugee Review Tribunal; Ex parte H, the High Court, in considering the reformulation of the test stated in Ebner in the context of an administrative decision, said:^[79]

“Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

The adoption of the apprehension of bias principle in the present case obviously requires some adaptation of the language used in Ebner. In my view, it would be appropriately reformulated for present purposes by saying that the first respondent would be disqualified from personally participating in a decision in relation to taking disciplinary proceedings in accordance with the CMC recommendations if a fair-minded lay observer who is properly informed of the circumstances, might reasonably apprehend that the first respondent might not bring an impartial mind to the resolution of the question whether to bring such proceedings. Deciding whether the first respondent might not bring an impartial mind to the resolution of that question requires no prediction about how the first respondent would in fact approach the matter: the question is one of possibility (real and not remote); not probability. The application of the principle requires the identification of what it is said might lead the first respondent to decide the question other than on its merits. The second step requires an articulation of the logical connection between the matter, and the feared deviation from the course of deciding that question on the merits of the matter.

There were some matters raised in the written submissions of the second and third respondents which should be noted. They referred to the necessity to consider the statutory frame work within which a decision-maker exercises a statutory decision-making power, when considering the requirements of procedural fairness; and to the proposition that the content to be given to those requirements will depend upon the facts and circumstances of the particular case.^[80] However, the statutory provisions which were referred to in relation to those submissions were those that enabled another person to make a decision on the taking of disciplinary proceedings against the applicants. As to factual matters, reference was made to evidence that inquiries had been unable to identify any occasion during the past 20 years when a police commissioner had taken the role of deciding whether disciplinary proceedings should be brought; and a submission that there was no realistic possibility that the first respondent would act in that role in the present case. Neither of these matters, however, provides assistance in answering the questions raised by the apprehension of bias principle. They seem to me to be of greater relevance to the question whether relief should be granted.

Matters relied upon by the applicants in support of their submission that the test for apprehended bias had been satisfied included the following:

the public criticism of the first respondent by the second respondent made in the course of the press conference on 17 June 2010;

adverse comments about what was described as the first respondent’s stewardship of the QPS, found in the CMC Review;

an implication from the second respondent’s comments that the only way the first respondent can redeem himself in the eyes of the CMC and the community at large, is by taking appropriate disciplinary action against the applicants (and others) in accordance with the recommendations in the CMC Review (the comments, apparently, are those made in the second respondent’s press conference on 17 June 2010; though the submission is not expressly limited to those comments.)

the threat that the CMC itself would take over the matter;

statements of the second respondent to the effect that the first respondent’s reappointment and its terms (said to include remuneration and tenure) were dependent upon the second respondent’s attitude to the adequacy of the response to the CMC Review.

There can be no doubt that the CMC Review contains statements which are, to a significant extent, critical of the first respondent. It seems to me that those statements must be considered together with the statements of the second respondent, to which reference has previously been made. I consider that the statements of the second respondent are, in the context of the comments found in the CMC Review, capable of being reasonably understood by a fair-minded lay observer as meaning:

The second respondent expected the first respondent personally to respond to the Requirement;

The second respondent considered that the first respondent’s actions in relation to the conduct of the applicants and other police officers were quite inadequate;

If the first respondent did not conclude that disciplinary proceedings should be instituted, then the third respondent would take such steps;

The adequacy of the first respondent’s response to the Requirement would be weighed by the second respondent in considering the terms on which the first respondent was to be reappointed.

In my view, the fair-minded lay observer would take into account the forceful nature of the statements of the third respondent, and the general tone of statements and communications from the second and third respondents. Taken together, these matters have the effect, given the relative positions of the first respondent and the second and third respondents, that a fair-minded lay observer might reasonably apprehend that the first respondent might not bring an impartial mind to the question whether disciplinary proceedings should be commenced against the applicants, if the first respondent were personally to deal with that question. Such an observer might apprehend that the combined effect of the criticisms made of the first respondent, the expectations of the second respondent, the outcome identified by the third respondent in the CMC Review, the relative positions of the first respondent on the one hand and the second and third respondents on the other, and the role of the second respondent in relation to the reappointment sought by the first respondent, might apply sufficient pressure to the first respondent, that, if he were personally to decide the question whether to take proceedings against the applicants, he might do so on some basis other than the true merits of the case against the applicants. That conclusion is reinforced by the statements made by the first respondent expressing interest in his reappointment; and by his statements relating to meeting the Requirement.

It was also submitted on behalf of the second and third respondents, that a finding that the first respondent was disqualified by reason of apprehended bias was a serious one, which needs to be “firmly established”; and that the court would not be satisfied that the relevant test was met. Notwithstanding the caution which is called for, I am satisfied that the test is met in the present case. I note in particular the reference in ex parte H to the possibility of an apprehension of lack of impartiality.

Orally, counsel for the second and third respondents relied upon a number of matters to establish that the test was met in the present case, assuming the principles apply. They include passages from the letter of 18 January 2010 from the first respondent to the person then acting as chairperson of the CMC; a letter of 29 April 2010 from the first respondent to the second respondent; and a further letter of 28 May 2010 from the first respondent to the second respondent. Generally speaking, those passages recommended managerial intervention rather than disciplinary proceeding.

The correspondence referred to on behalf of the second and third respondents, taken in isolation, plainly contains an expression of a view by the first respondent about the appropriate course to be taken in relation to the applicants. In my view, it is far from clear that the correspondence might lead the fair-minded lay observer reasonably to apprehend that the first respondent might not bring an impartial mind to the determination of what action should be taken in relation to the applicants, given the contents of the CMC Review. At various times the first respondent saw draft versions of the CMC Review. Much of the correspondence was written with a view to advocating a course to be adopted at the conclusion of the CMC Review. It does not follow that if the recommendations of the first respondent were not accepted by the CMC, the first respondent would not bring an impartial mind to a consideration of what action was to be taken.

For the reasons set out, I am satisfied the result of the application of the apprehension of bias principle is that the first respondent is not in a position personally to consider whether disciplinary proceedings should be brought against the applicants. I stress that the application of this principle does not require a prediction about how the first respondent might in fact make such a decision. In particular, I note that, to a significant extent, the source of the relevant apprehension is by no means limited to the conduct of the first respondent.

Declaratory relief

The second and third respondents submit that the applicants have not established that the first respondent will be a “decision maker”, and accordingly submit that the applicants seek the declaratory relief claimed in paragraph 1 of the AOA on an entirely hypothetical basis. They also submit that it would involve speculation for the court to grant such relief, and that courts do not exercise their powers in those circumstances. They rely on the following passage from Ibeneweka v Egbuna:^[81]

“After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with the proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making.”

They also rely on passages from Bass v Permanent Trustee Co Ltd.^[82] Those passages record that the grant of a declaration involves the final determination of the rights of the parties to an action; and for that reason, courts have traditionally refused to provide answers to hypothetical questions, or to give advisory opinions. However, in Bass, the Court also noted that the jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law, and that such a declaration will not be “hypothetical in the relevant sense”. One feature identified in Bass for determining whether an advisory opinion was sought, was whether or not any judgment would be based on a concrete situation. A pronouncement which was not based on facts (either found or agreed), would be purely hypothetical.

In my view, the declaration sought is not hypothetical; nor would it amount to an advisory opinion. There is, in my view, a concrete factual situation, which makes it appropriate to grant relief. The first relevant fact is that the third respondent has issued a requirement to the first respondent with which the first respondent is required to comply. As a matter of law, therefore, he is bound to take some action; and a possible form of action open to the first respondent is himself to decide whether disciplinary proceedings should be taken against the applicants.

The second factual matter is that the second respondent has, in the past, made it clear that he expects the first respondent personally to make the decision sought by the Requirement. The statements of the second respondent link judgment about the performance by the first respondent of the duties of his position and the terms of his re-employment, to the decision made by the first respondent. While it has more recently been acknowledged by the second and third respondents that the decision may be made by a delegate of the first respondent, nevertheless the publicity which has been given to the CMC Review and the statements of the second respondent are likely to have given rise to an expectation that the first respondent would personally make the decision called for by the requirement. The importance attributed to the matter in the CMC Review, and in the public statements of the second respondent, reinforce that conclusion.

Moreover, the conduct of the first respondent must be considered. He has made statements to the effect that he is making significant efforts in order to comply with the Requirement.

The position taken by the first respondent in the present proceedings is also relevant. It is that he remains willing to discharge his responsibilities. There is no evidence that the first respondent has exercised the power to delegate the making of the relevant decision. I attribute some weight to the absence of such evidence. Had it been forthcoming, it would not have been necessary to determine whether the first respondent is precluded from personally making the decision, on the ground of apprehended bias.

For those reasons, I do not consider the evidence that, in the past, a person in the position of the first respondent has not personally made decisions about bringing disciplinary proceedings against members of the QPS to be of particular significance. It does not seem to me that this evidence is sufficient to establish that the question in the present case is in truth hypothetical, either by reference to the considerations raised on behalf of the second and third respondents, or because the question involves some future potential action by the first respondent.

In this case, the appropriateness of granting relief may be looked at from another point of view. The first respondent has made clear that he will abide by any determination made by the Court. Otherwise, injunctive relief would have been pursued by the applicants. The considerations relevant to the grant of quia timet injunctive relief may be considered relevant.

The circumstances in which such relief will be granted have been considered and helpfully explained by Chesterman J (as his Honour then was) in Kestrel Coal Pty Ltd v Construction Forestry Mining and Energy Union.^[83] Although his Honour considered the question in an unrelated field of the law, there was no submission to the effect that the principles stated by his Honour did not apply in respect of administrative decision making; nor did any party identify an authority which is more directly relevant. From his Honour’s discussion I take the following principles:

(a)No fixed degree of persuasion that the conduct which it is sought to restrain will occur is necessary before relief would be granted;

(b)Whether apprehended future conduct is to be enjoined will depend upon whether the plaintiff shows a sufficient need for the protection of an injunction;

(c)Relevant factors to be considered and weighed include the likelihood of the conduct occurring; the damage the plaintiff will suffer if it does occur; and the hardship or inconvenience that the defendant will suffer if the injunction is granted.

For reasons already stated, I am of the view that the plaintiffs have established a sufficient likelihood that the Commissioner will personally decide the question raised by the Requirement, to warrant the grant of relief. If the first respondent were personally to make the decision, it would necessitate an application to have the decision set aside; and possibly lead to further delay in dealing with the requirement. On the other-hand, no great hardship or inconvenience would result if relief were granted. Accordingly, it seems to me appropriate to grant relief.

Notwithstanding the form of declaration identified in the AOA, the applicants accepted as appropriate the following formulation (proposed by the second and third respondents, in the event a declaration were to be made, and slightly adapted):

“A declaration that the first respondent is disqualified from giving any personal consideration to commencing disciplinary proceedings for misconduct against either applicant on the common law ground of apprehended bias; but is not prevented from delegating the consideration of the commencement of disciplinary proceedings as recommended in Chapter 13 of the CMC Review of the Queensland Police Service’s Palm Island Review to a ‘prescribed officer’ as defined in s 7.4 of the Police Service Administration Act 1990, or from reporting to the CMC that he has made such a delegation.”

Subject to any further submissions about its form, I propose to make a declaration in those terms.

Position taken on behalf of the first respondent at hearing.

In relation to the application of the principles of apprehended bias in the present case, the first respondent took the position of assisting the court with submissions about powers and procedures, but otherwise not assuming the role of a protagonist, relying on R v Australian Broadcasting Tribunal ex parte Hardiman;^[84] Carrutthers v Connolly;^[85] and Cairns Port Authority v Albietz.^[86] On more than one occasion this course was criticised by Senior Counsel for the second and third respondents.

A significant reason identified in the authorities for this approach is the need to preserve a decision-maker’s impartiality, should it be necessary for the decision-maker to make a decision in the future.

In the present case, I have found there is a substantial prospect that, absent a declaration to the effect that the first respondent may not be personally involved in determining what proceedings should be taken against the applicants, the first respondent would do so. In those circumstances, the course taken on behalf of the first respondent is consistent with the authorities referred to.

I should add that I have found it difficult to appreciate the relevance of the criticism made on behalf of the second and third respondents, to the issues in the proceedings. The only relevance identified on their behalf was to the exercise of the discretion to refuse relief. It should first be noted that the relief is sought by the applicants, not the first respondent, and accordingly it is difficult to see any connection between the position taken by the first respondent in these proceedings, and a decision to deny the applicants relief to which they would otherwise be entitled. Secondly, it is difficult to see why a view taken by or on behalf of the first respondent about the proper course to follow, assuming that it were erroneous, could have any real bearing on the exercise of the discretion to refuse relief. I am therefore unable to see any logical connection between the criticism levelled against the first respondent on behalf of the second and third respondents, and the issues in this case. I should add that I would consider it difficult to make any appropriate criticism of a party who exercises caution in taking an active part in proceedings in reliance of the principle stated in Hardiman, at least unless it were clear that that decision was plainly wrong. Obviously, I do not consider that to be so in the present case.

I therefore consider the position taken on behalf of the first respondent to be consistent with the authorities to which reference has been made. Even if that view were wrong, I consider that the criticism made of that position does not provide a basis for refusing relief to the applicants.

Conclusion

I am not prepared to find that the Requirement is beyond power, and would accordingly refuse the declaration to that effect sought by the applicants. Subject to any further submission about the form of declaration to be granted, I propose to make a declaration to the effect set out earlier in these reasons. I shall hear submissions from the parties as to the final form of the orders to be made, and as to costs.

Footnotes

[1] E-mail communications from the parties’ legal representatives subsequent to the initial hearing on 6 and 7 July 2010 confirmed that this course was acceptable.

[2] See CMC Review p 32.

[3] Ibid.

[4] Ibid.

[5] See s 4(1).

[6] See s 5(1).

[7] See s 5(3).

[8] See s 20(1)(d).

[9] See the definition in schedule 2.

[10] See the definition in schedule 2, s 15.

[11] See s 33.

[12] See s 46(1).

[13] See the definition in Schedule 2.

[14] CMC Review at p 171.

[15] CMC Review at p 175.

[16] CMC Review at p 178.

[17] Johns v Australian Securities Commission (1993) 178 CLR 408, 426; see also 469; and Brown v West (1990) 169 CLR 195, 203; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 85, 86.

[18] See s 48(1)(a).

[19] See the Definitions in Schedule 2 of the CM Act.

[20] See s 46(1) of the CM Act.

[21] See s 42 of the CM Act.

[22] See s 4.8(2)(l).

[23] In s 1.4 of the PSA Act.

[24] In s 1.4 of the PSA Act.

[25] See the definition of “official misconduct” in s 1.4 of the PSA Act.

[26] Police officers are identified in s 2.2(2) of the PSA Act.

[27] See s 15.

[28] Note ss 42(1) and (6) and 44 (2) and (4) of the CM Act. I consider that the devolution principle in s 34 supports this view. Moreover, the PSA Act, in my view, envisages the investigation of official misconduct by the Commissioner of Police, independent of a referral by the CMC.

[29] See s 45(1) of the CM Act.

[30] CMC Review, p 5, p 32.

[31] CMC Review, p 32.

[32] See p 32 of the CMC Review.

[33] See the CMC Review at p 5.

[34] See p 32.

[35] CMC Review p 32.

[36] Ibid.

[37] CMC Review p 32.

[38] (2000) 205 CLR 337, particularly at [6].

[39] (1985) 159 CLR 550, 584.

[40] P 584-585.

[41] (2001) 205 CLR 337 at 343-344.

[42] (2001) 205 CLR 507 at [98]-[100], [105], [176], [187], [192], [167], [278]-[279], [324]; see also re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 at [5].

[43] [1998] VSC 51 at [198].

[44] [139].

[45] [194]-[195].

[46] [196]-[198].

[47] (1958) 100 CLR 582.

[48] See p 594.

[49] P 591.

[50] (1995) 63 SASR 451.

[51] See p 466, 475.

[52] P 465.

[53] Pp 483-484.

[54] (1989) 16 NSWLR 453; see in particular pp 477-478; see also Barker v Queensland Fire and Rescue Authority & Anor [2000] QSC 395; and Re The Medical Board of Western Australia Ex Parte P [2001] WASC 103.

[55] P 461.

[56] (1984) 54 ALR 386.

[57] [1982] VR 353, 360-361.

[58] Murchison at 394-395.

[59] (1987) 78 ALR 603.

[60] P 605.

[61] (1980) 147 CLR 75.

[62] P 94.

[63] P 110.

[64] (1992) 175 CLR 564.

[65] Aronson, Dyer and Groves, 4th ed at [7.280].

[66] (2007) 69 NSWLR 20.

[67] [79]-[83].

[68] [73]-[77].

[69] [1994] 2 AC 173.

[70] P 191-192.

[71] P 193-194.

[72] See the discussion of Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 in Ainsworth at 576.

[73] Annetts v McCann (1990) 170 CLR 596, 598; referred to Ainsworth at 576.

[74] Ainsworth at 577-578.

[75] See s 2.3(f).

[76] See s 15.

[77] In s 14 of the CM Act.

[78] Ebner at [7]-[8].

[79] At [28]

[80] Relying on Szbel v MIMIA (2006) 228 CLR 152, 160-161.

[81] [1964] 1 WLR 219, 225.

[82] (1999) 198 CLR 334, particularly at [45]-[49].

[83] [2000] QSC 150: see [22]-[28].

[84] (1980) 144 CLR 13, 35-36.

[85] [1998] 1 Qd R 339, 342.

[86] [1995] 2 Qd R 470, 476, 479.

Editorial Notes

Published Case Name:
Kitching & Anor v Queensland Commissioner of Police & Ors
Shortened Case Name:
Kitching v Queensland Commissioner of Police
MNC:
[2010] QSC 303
Court:
QSC
Judge(s):
P Lyons J
Date:
19 Aug 2010
White Star Case:
Yes

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Ainsworth v Criminal Justice Commission	View on:JADE(1992) 175 CLR 564	1 citation Jump To Cite 1 - (1992) 175 CLR 564
Annetts v McCann	View on:JADE(1990) 170 CLR 596	1 citation Jump To Cite 1 - (1990) 170 CLR 596
Barker v Queensland Fire and Rescue Authority	[2000] QSC 395	1 citation Jump To Cite 1 - [2000] QSC 395
Barton v R	View on:JADE(1980) 147 CLR 75	2 citations Jump To Cite 1 - (1980) 147 CLR 75 Cite 2 - (1980) 147 CLR 75
Bass v Permanent Trustee Company Ltd	View on:JADE(1999) 198 CLR 334	2 citations Jump To Cite 1 - (1999) 198 CLR 334 Cite 2 - (1999) 198 CLR 334
Bass v Permanent Trustee Company Ltd	View on:JADE(1999) HCA 9	1 citation Jump To Cite 1 - (1999) HCA 9
Brown v West	View on:JADE(1990) 169 CLR 195	2 citations Jump To Cite 1 - (1990) 169 CLR 195 Cite 2 - (1990) 169 CLR 195
Brown v West	View on:JADE[1990] HCA 7	1 citation Jump To Cite 1 - [1990] HCA 7
Cairns Port Authority v Albietz	[1995] 2 Qd R 470	1 citation Jump To Cite 1 - [1995] 2 Qd R 470
Carruthers v Connolly	[1998] 1 Qd R 339; [1997] QSC 132	1 citation Jump To Cite 1 - [1998] 1 Qd R 339
Commissioner of Police v Reid	View on:NSWLR(1989) 16 NSWLR 453	2 citations Jump To Cite 1 - (1989) 16 NSWLR 453 Cite 2 - (1989) 16 NSWLR 453
Ebner v Official Trustee in Bankruptcy	View on:JADE(2000) 205 CLR 337	2 citations Jump To Cite 1 - (2000) 205 CLR 337 Cite 2 - (2000) 205 CLR 337
Ebner v Official Trustee in Bankruptcy	View on:JADE(2001) 205 CLR 337	1 citation Jump To Cite 1 - (2001) 205 CLR 337
Ebner v Official Trustee in Bankruptcy	View on:JADE(2000) HCA 63	1 citation Jump To Cite 1 - (2000) HCA 63
Ibeneweka v Egbuna	View on:ICLRUK(1964) 1 WLR 219	2 citations Jump To Cite 1 - (1964) 1 WLR 219 Cite 2 - (1964) 1 WLR 219
Johns v Australian Securities Commission	View on:JADE(1993) 178 CLR 408	2 citations Jump To Cite 1 - (1993) 178 CLR 408 Cite 2 - (1993) 178 CLR 408
Johns v Australian Securities Commission	View on:JADE[1993] HCA 56	1 citation Jump To Cite 1 - [1993] HCA 56
Kestrel Coal Pty Ltd v Construction Forestry Mining and Energy Union	[2001] 1 Qd R 634; [2000] QSC 150	2 citations Jump To Cite 1 - [2000] QSC 150 Cite 2 - [2000] QSC 150
Kioa v West	View on:JADE[1985] HCA 81	1 citation Jump To Cite 1 - [1985] HCA 81
Kioa v West	View on:JADE(1985) 159 C.L.R 550	2 citations Jump To Cite 1 - (1985) 159 C.L.R 550 Cite 2 - (1985) 159 C.L.R 550
Medical Board of Queensland v Byrne	View on:JADE(1958) 100 CLR 582	2 citations Jump To Cite 1 - (1958) 100 CLR 582 Cite 2 - (1958) 100 CLR 582
Metropolitan Fire and Emergency Services Board v Churchill	View on:JADE[1998] VSC 51	2 citations Jump To Cite 1 - [1998] VSC 51 Cite 2 - [1998] VSC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng	View on:JADE[2001] HCA 17	1 citation Jump To Cite 1 - [2001] HCA 17
Minister for Immigration v Jia Legeng	View on:JADE(2001) 205 CLR 507	2 citations Jump To Cite 1 - (2001) 205 CLR 507 Cite 2 - (2001) 205 CLR 507
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd & Ors	(1996) 91 LGERA 31	2 citations Jump To Cite 1 - (1996) 91 LGERA 31 Cite 2 - (1996) 91 LGERA 31
Murchison v Keating (No 2)	(1984) 54 ALR 386	2 citations Jump To Cite 1 - (1984) 54 ALR 386 Cite 2 - (1984) 54 ALR 386
Newby v Moodie	(1987) 78 ALR 603	2 citations Jump To Cite 1 - (1987) 78 ALR 603 Cite 2 - (1987) 78 ALR 603
Nicol v Attorney-General (Vic)	View on:VR[1982] VR 353	2 citations Jump To Cite 1 - [1982] VR 353 Cite 2 - [1982] VR 353
R v Australian Broadcasting Tribunal &Ors; Ex parte Hardiman & Ors	View on:JADE(1980) 144 CLR 13	1 citation Jump To Cite 1 - (1980) 144 CLR 13
R v Karounos	(1995) 63 SASR 451	2 citations Jump To Cite 1 - (1995) 63 SASR 451 Cite 2 - (1995) 63 SASR 451
R v MG	View on:NSWLR(2007) 69 NSWLR 20	2 citations Jump To Cite 1 - (2007) 69 NSWLR 20 Cite 2 - (2007) 69 NSWLR 20
R v MG	View on:JADE[2007] NSWCCA 57	1 citation Jump To Cite 1 - [2007] NSWCCA 57
Re Refugee Review Tribunal; ex parte H	(2001) 75 ALJR 982	2 citations Jump To Cite 1 - (2001) 75 ALJR 982 Cite 2 - (2001) 75 ALJR 982
Re Refugee Review Tribunal; Ex parte H	View on:JADE[2001] HCA 28	1 citation Jump To Cite 1 - [2001] HCA 28
Re The Medical Board of Western Australia Ex Parte P	View on:JADE[2001] WASC 103	1 citation Jump To Cite 1 - [2001] WASC 103
Rees v Crane	View on:ICLRUK[1994] 2 AC 173	2 citations Jump To Cite 1 - [1994] 2 AC 173 Cite 2 - [1994] 2 AC 173
SBZEL v Minister for Immigration and Multicultural and Indigenous Affairs	View on:JADE(2006) 228 CLR 152	1 citation Jump To Cite 1 - (2006) 228 CLR 152
Testro Bros Pty Ltd v Tait	View on:JADE(1963) 109 CLR 353	1 citation Jump To Cite 1 - (1963) 109 CLR 353

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Braun v Rushbrook	[2020] QSC 268	2 citations
Chapman v Wilson and Anor	[2011] QCAT 400	1 citation
Crime and Misconduct Commission v Wilson	[2012] QCA 314	3 citations
Lee v Crime and Corruption Commission	[2016] QCA 145	3 citations
Lee v Crime and Corruption Commission	[2015] QSC 226	4 citations
Parker v QFES Commissioner	(2020) 6 QR 361; [2020] QSC 370	5 citations
QUBE Ports Pty Ltd v Chief Executive Department of Justice and Attorney-General	[2013] 2 Qd R 260; [2012] QCA 285	1 citation

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Kitching v Queensland Commissioner of Police[2010] QSC 303