Mills v Commissioner of the Queensland Police Service
[2011] QSC 244
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- Notable Unreported Decision
- Mills v Commissioner of the Queensland Police Service[2011] QSC 244
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Mills v Commissioner of the Queensland Police Service[2011] QSC 244
Mills v Commissioner of the Queensland Police Service[2011] QSC 244
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application for a statutory order of review |
ORIGINATING COURT: | |
DELIVERED ON: | 19 August 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 August 2010 |
JUDGE: | Applegarth J |
ORDER: | The application is adjourned to a date to be fixed. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where applicant police officer unsuccessful in obtaining promotion to rank of Inspector – where respondent’s directions were contained in a Human Resource Management Manual – where Manual required that each application for promotion be considered by each member of the selection panel separately and independently of other panel members – where selection panel divided all applications into two pools assessed by separate sub-panels – where applications were allocated scores against selection criteria by sub-panels – where scored applications were then moderated by full selection panel in order to compile a shortlist for interview – whether shortlisting process was in accordance with the respondent’s directions as contained in Human Resource Management Manual Judicial Review Act 1991, s 20(2)(b) Police Service Administration Act 1990, s 4.9 Cuttler v Browne [2010] QCA 346 cited Green v Commissioner of the Queensland Police Service [2006] QSC 323 cited Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 cited |
COUNSEL: | M Black for the applicant S A McLeod for the respondent |
SOLICITORS: | Gilshenan & Luton for the applicant Office of the Queensland Police Service Solicitor for the respondent |
- In September 2007 the applicant, a Senior Sergeant of Police, applied for an appointment to Inspector in response to a notice that invited applications for appointment to “Inspector, Generic Stream, Vacancy No 449/07”. There were 74 applications for the appointment. After a shortlisting process, 37 of the applicants were interviewed. The applicant was not one of them. Of the 37 applicants who were interviewed, 32 ultimately were appointed to the position of Inspector, to fill the vacancy.
The applicant’s contentions
- The applicant complains about the process by which the shortlisting occurred. In particular, he complains that the process did not comply with the procedures for merit-based selection contained in the Queensland Police Service Human Resource Management Manual (“the Manual”). The Manual provides that each member of the selection panel “must consider each application separately and independently of other panel members.” In this case, due to the number of applications, the selection panel divided the written applications into two bundles. One bundle of 37 applications was assessed by Deputy Commissioner Stewart and Assistant Commissioner Barron and the other bundle of 37 applications was assessed by Assistant Commissioners Lewis and Swindells. As a result, the applicant complains of a failure by the selection panel to comply with the procedure required by the Manual.
- The shortlisting process is intended to determine “those applicants who have strong apparent claims for selection and for whom a more comprehensive consideration is warranted”. The Manual directs a selection panel to “err on the side of including applicants rather than setting arbitrary exclusion points.” The selection panel in this case allocated selection criteria ratings in respect of each application, and decided that only applicants who had been assessed as having four or more “medium” scores against the seven selection criteria would be considered further. The applicant contends that, by doing so, the selection panel set an arbitrary exclusion point and did not “err on the side of including applicants”.
- The Manual requires the process used for shortlisting “to be documented in the final selection report”. The selection report in this case stated that there had been a process of “individually assessing applications”, and did not report the fact that the applications had been divided into two bundles and that each member of the selection panel had not separately and independently considered each application. The applicant complains that this omission constituted a failure to comply with the requirement contained in the Manual.
- The alleged failure to comply with the Manual in each of these three respects is said by the applicant to entail a failure to comply with the Commissioner’s directions under s 4.9 of the Police Service Administration Act 1990 (Qld) (“the Act”). In addition, the applicant submits that the procedure adopted by the selection panel was not “fair and equitable” as required by s 5.2(2) of the Act.
- The applicant seeks judicial review of the decisions of the respondent appointing the 32 successful applicants to the position of Inspector. The decisions to appoint some of these individuals to the position were unsuccessfully challenged on review by the applicant. The applicant advances two grounds in his further amended application for a statutory order of review under the Judicial Review Act 1991 (“the JR Act”):
(a)that procedures that were required by law to be followed in relation to the making of the decisions were not observed; and
(b)that a breach of the rules of natural justice occurred in relation to the making of the decisions.
I have outlined the three procedures that the applicant contends were not observed in relation to the making of the decisions, namely that:
- the panel members did not consider “separately and independently of other panel members” each application;
- the selection panel set an arbitrary exclusion point for shortlisting, namely a requirement that only applicants who had received at least four “medium” ratings were to be shortlisted; and
- the process for shortlisting applicants was not accurately documented in the final selection report
and the more general complaint that the appointment decisions thereby were not made “by fair and equitable procedures” as required by s 5.2(2) of the Act.
- As to the natural justice ground, the applicant submits that by issuing the Manual as to how selection processes were to be conducted, the respondent created a reasonable or legitimate expectation that the procedures contained in the Manual would be followed. He submits that if there was some lawful basis for the panel to depart from the procedure specified in the Manual, the rules of natural justice required him to be given notice of the intended departure and an opportunity to argue against that course.
The respondent’s contentions
- The respondent submits that the applicant’s argument proceeds on the erroneous basis that strict compliance with the requirements of the Manual in relation to merit based selection was required in order for the selection panel to undertake its task of assessing the respective applications. The respondent submits that strict compliance was not required because:
(a)the opening words of the Manual’s section in relation to shortlisting permits the selection panel to decide which elements of the selection process will be adopted in a particular selection exercise; and
(b)the Manual should be construed so as to provide a degree of flexibility, such that the application of the Manual “cannot truncate a selection panel’s discretion as provided for in s.5.2(2) of the PSA Act.”
- The respondent also relies upon the decision of the Court of Appeal in Cuttler v Browne[1] in support of the proposition that non-compliance with the provisions of the Manual is not necessarily productive of invalidity, and that the approach adopted by the selection panel was not inconsistent with the provisions of s 5.2(2) of the Act, which require “fair and equitable procedures”.
- As to the natural justice ground, the respondent submits that once it is recognised that the selection panel had a discretion to depart from strict compliance with the Manual, the applicant can have had no expectation of strict compliance with it, and that, in any event, he has not shown that “he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.”[2]
The issues
- The substantial issues are as follows:
- What procedures were required by law to be followed by the selection panel?
- In particular, did the procedures provide the selection panel with the flexibility to depart from the requirement that each member of the selection panel “consider each application separately and independently of other panel members”?
- Did the selection panel adopt an arbitrary exclusion point for shortlisting?
- Did the selection panel’s report document the process used for shortlisting?
- Did the procedures adopted mean that the decisions under review were not made by “fair and equitable procedures”?
- Was the applicant denied natural justice?
- If the applicant establishes either ground for judicial review, to what relief, if any, is he entitled?
The legislative framework
- Section 4.8 of the Act relevantly provides:
“(1)The commissioner is responsible for the efficient and proper administration, management and functioning of the police service in accordance with law.
(2)Without limiting the extent of the prescribed responsibility, that responsibility includes responsibility for the following matters—
...
(e)selection of persons as officers and police recruits.”
- Section 4.8(3) provides that the respondent is authorised to do, or cause to be done, all such lawful acts and things as the respondent considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility. Section 4.9 provides for the respondent to issue directions. At the time the decisions under review were made, the respondent had issued a written procedure for selecting persons for promotion, as set out in the Manual which is exhibited to Mr Pitt’s affidavit. The Manual is a “series of directions given by” the respondent under s 4.9 of the Act.[3]
- Section 5.2(2) of the Act provides:
“A decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that—
(a)include inviting applications and selection on the basis of the merit of applicants; and
(b)prevent unjust discrimination, whether in favour of or against a person.”
The Manual
- The part of the Manual devoted to Merit Based Selection (section 16.2) is a substantial document consisting of 43 pages (references hereafter to “the Manual” refer to this part of it). Its purpose is to maintain and enhance the police service’s capacity to perform its functions, recognising that “it is crucial that staff are highly skilled, knowledgeable and competent to perform the roles required of them.” Section 2 of the Manual states:
“The process by which people are selected for such roles is therefore a critical determinant of how well jobs are performed and, ultimately, of how well the Service delivers its services to the community.”
This introductory part of the Manual specifies certain legislative provisions, including s 5.2 of the Act, and states that selection panels “are to adhere to these legislative provisions and the requirements of this policy when conducting a merit based selection process.”
- The Manual directs that:
(a)after advertising a vacant position or positions, a “selection panel is to be convened to recommend appointees for initial and subsequent vacancies” (the Manual, section 5.4.1);
(b)the selection panel convenor is responsible for ensuring that the selection process is “conducted expeditiously, fairly, transparently and in accordance with this policy” and for ensuring that “all members of the panel are fully involved at all stages of the selection process” (the Manual, section 7.2(i) and (ii));
(c)the purpose of the “shortlisting” process is to determine those applicants with strong apparent claims for selection and for whom a more comprehensive consideration is warranted, and that the selection panel “should err on the side of including applicants rather than setting arbitrary exclusion points” (the Manual, section 9.1);
(d)the selection panel is to use a rating scale consisting of “Low”, “Medium”, and “High” ratings against each “key selection criterion” and may use “+” and “-” in conjunction with those ratings if deemed necessary (the Manual, section 9.1.1);
(e)prior to agreeing on a shortlist for interview, “each member of the selection panel... must consider each application separately and independently of other panel members” (the Manual, section 9.1.1); and
(f)the process used to determine a shortlist “is to be documented in the final selection report and must be capable of withstanding independent scrutiny” (the Manual, section 9.1.2).
- Section 9 of the Manual, which relates to the Selection Process, commences:
“9.Selection Process
The following processes comprise elements of the selection process. Which elements are adopted in particular selection exercises will depend on the nature and relative competitiveness of the applicant pool.
(i)shortlisting (if necessary, to generate a smaller group of applicants with apparent strong claims for selection and who should be considered more extensively);
(ii)structured interviews (including past performance records and work samples submitted by the applicant at interview);
(iii)referee and supervisor checks (to verify an applicant’s claims);
(iv)tests (e.g. psychometric, aptitude and physical tests, role plays, job simulations, work samples, in-tray exercises, etc.); and
(v)integrity checks.”
(underlining added)
- Section 9.1.1 deals with the assessment of applicants during the shortlisting process and the rating scale that is to be used in the shortlisting process to evaluate applicants’ responses against each key selection criterion. This section goes on to provide:
“Prior to the selection panel meeting to agree on a shortlist for interview, each member of the selection panel must be familiar with the above rating scale and the responsibilities of the position and must consider each application separately and independently of other panel members. However, where there is a large applicant pool and the panel unanimously agrees, the shortlisting exercise may be conducted by not less than two members only, one of whom must be the panel convenor. As a guide, a large applicant pool would typically be a pool of more than thirty applicants.”
- Section 9.2 deals with the conduct of structured interviews. Section 9.3 concerns referee and supervisor checks. Section 9.4 addresses additional selection practices, including testing. Section 10 relates to the integrity of applicants. The Manual then deals comprehensively with the recommendation and appointment process.
Facts
- The facts are not in dispute. They appear in substantial affidavits. The essential facts are set out in numerous paragraphs of a Notice to Admit Facts, the contents of which were mostly admitted. In the few instances where matters were not admitted, the respondent helpfully identified contentions in response and the applicant accepts the correctness of these responses. Mr Pitt, the Human Resources Manager for the State Crime Operations Command, who performed the role of executive officer for the selection panel for the relevant vacancy, was briefly cross-examined at the hearing.
- Notice of the vacancy was published on 17 August 2007. The applicant submitted his application on 3 September 2007. At no stage during the selection process was he notified that the respondent was not following, or was not intending to follow, the procedures set out in the Manual. A selection panel was convened. It was initially constituted by Deputy Commissioner (then Assistant Commissioner) Ian Stewart (who was panel convenor) and by Assistant Commissioners Peter Barron, Peter Swindells and Ann Lewis. Assistant Commissioner Lewis was replaced during the interview stage of the selection process due to operational requirements. Her place was taken by Ms Patsy Jones, the then Manager of the Human Resource Management Branch.
- A total of 74 written applications were received. Due to the number of written applications that were received, the selection panel divided them into two bundles, each consisting of 37 of the written applications. One bundle of the written applications was assessed by Deputy Commissioner Stewart and Assistant Commissioner Barron, and the other bundle was assessed by Assistant Commissioner Lewis and Assistant Commissioner Swindells
- Neither the panel convenor nor any other of the panel members assessed each of the 74 written applications separately and independently of the other panel members when shortlisting applications.
- The selection panel agreed to set indicators based on seven “key selection criteria” that were to be used in the selection process
- The applicant’s application was among those assessed by Assistant Commissioners Lewis and Swindells. Assistant Commissioner Lewis’ shortlisting matrix for the applicant rated him as having five “M -” (medium minus) scores, one “M” (medium) and one “L+” (low plus). Assistant Commissioner Swindells’ shortlisting matrix rated the applicant as having two “M -” (medium minus), two “L + M -” (low plus/medium minus) and three “L+” (low plus) scores. The moderated resumé shortlisting result in respect of the applicant was four “M-” (medium minus) scores and three “L+” (low plus) scores.
- Mr Pitt states that on 7 December 2007 “the selection panel came together to assess and moderate all seventy-four (74) applications”.
- The selection panel decided that only those applicants who obtained at least four scores of “medium” or better against the stated selection criteria would be interviewed.
- After the selection panel met and “moderated” the scores, the result was as follows:
- 23 of the written applications assessed by Assistant Commissioners Stewart and Barron were selected for interview, and 21 of those were ultimately appointed to the rank of inspector; and
- 14 of the written applications assessed by Assistant Commissioners Lewis and Swindells were selected for interview, and 11 of those were ultimately appointed to the rank of inspector.
- By email dated 10 December 2007, the applicant was advised that his application was unsuccessful at the shortlisting stage.
- The selection panel conducted interviews over four days from 21 to 24 January 2008. Following interviews, the selection panel assessed the overall performance of the 37 shortlisted applicants and agreed upon a final moderated rating for each.
- The selection panel convenor prepared a Selection Report. The Report explained the selection methodology. It stated, among other things:
“Following the gazettal of the above position a panel consisting of myself, Assistant Commissioner (A/C) Peter Barron, Metropolitan North Region, A/C Ann Lewis, Central Region and A/C Peter Swindells, State Crime Operations Command after individually assessing applications, met to assess and moderate them. Prior to moderation, agreed indicators as set out in the key selection criteria (KSC) were set to assist in shortlisting.
At the shortlisting moderation on 7 December 2007 it was clearly evident that some panel members knew all of the applicants and had some personal knowledge of them. However, this personal knowledge was such that it would neither detract (sic) nor enhance any of the applicants’ resume (sic) and as such no personal knowledge was used. Following moderation of the resume shortlistings, it was the unanimous decision of the panel, only applicants who had received a rating of a minimum of four mediums or above for the seven KSC would be considered further in the selection process.”
- The Report did not state that half of the written applications had been assessed by two of the panel members, and that the other half had been assessed by the other two panel members. The Report did not state how or why the criterion of “a minimum of four mediums or above” was adopted.
- The Report recommended the appointment of 32 applicants to the position of Inspector pursuant to Vacancy No 449/07. On 25 February 2008, the respondent approved the appointment of the 32 recommended applicants to the position of Inspector. The appointments were subsequently published in the Queensland Police Gazette. The applicant lodged the following applications for review under Part 9 of the Act:
- an application dated 7 March 2008, seeking review of the decision to make the appointments notified in the Queensland Police Gazette on 29 February 2008;
- an application dated 25 March 2008, seeking review of the decision to make the appointment notified in the Queensland Police Gazette on 14 March 2008;
- an application dated 9 May 2008, seeking review of the decision to make the appointment notified in the Queensland Police Gazette on 24 April 2008; and
- an application dated 3 September 2008, seeking review of the decision to make the appointment notified in the Queensland Police Gazette on 22 August 2008.
- By letter dated 10 July 2008, the Commissioner for Police Service Reviews requested that the applicant select three individual officers whose appointments should be reviewed. The letter stated that this was for “efficiency and expediency” but did not limit the Applicant’s right to have all appointments reviewed. On 8 August 2008, the applicant nominated Inspectors Clark, Palmer and Ryan as the three officers whose appointments should be reviewed by the Commissioner for Police Service Reviews.
- On 27 October 2008, the Commissioner for Police Service Reviews conducted a review of the decisions to appoint Inspectors Clark, Palmer and Ryan against Vacancy number 449/07. The Commissioner for Police Service Reviews produced a Review Report dated 4 November 2008. The Review Report recommended that the appointments of Clark, Palmer and Ryan be affirmed.
- On 21 November 2008, the respondent published a notice in the Queensland Police Gazette of the respondent’s decision to:
- affirm the appointments of Clark and Ryan; and
- dismiss the Applicant’s application for review of Palmer’s appointment.
- On 3 December 2008, the applicant nominated a further six officers whose appointments he wished to have reviewed by the Commissioner for Police Service Reviews. On 8 December 2008, the Commissioner for Police Service Reviews advised the applicant of a timetable for the provision of written submissions in relation to the review, and advised that the review would be determined “on the papers”. On 9 February 2009, the Commissioner for Police Service Reviews advised the applicant that the review hearing would be conducted on 12 February 2009. The hearing proceeded on that date. The Commissioner for Police Service Reviews produced a Review Report dated 16 February 2009. The Review Report recommended that the six appointments under review be affirmed.
- The precise process by which the selection panel assessed and moderated all 74 applications on 7 December 2007 is not explained in the body of Mr Pitt’s affidavit. He exhibits documents which are copies of the selection panel’s handwritten moderated resumé shortlisting of applications and a copy of the selection panel’s typed moderated resumé shortlisting of applications. The issue of moderation was the subject of evidence before a review hearing in 2008. The Commissioner for Police Service Reviews Report dated 4 November 2008 addresses the topic. In that review the applicant sought to review the appointment of nominated individuals on the grounds of flawed process and superior merit. He relied upon non-compliance with the requirements of section 9.1.1 of the Manual. According to the Review Report, evidence was given to the review hearing by Deputy Commissioner Stewart to the effect that the panel had come together after the individual shortlisting process “and all members had participated in a rigorous moderation discussion, with the applications in front of them.” Deputy Commissioner Stewart contended that he had been involved throughout the shortlisting process, as required by the Manual. The Commissioner for Police Service Reviews acknowledged the applicant’s submission that the shortlisting process was flawed as each application had been assessed by only two members of the four member panel. However, this flaw was not of a kind that was found to warrant overturning the panel’s decision. The Commissioner for Police Service Reviews concluded that the apparent departure from policy in this case was not sufficient “to corrupt the whole exercise”. This conclusion was based on the experience, competency and seniority of the panel members who assessed the applicant’s application, and the assurance of the panel convenor that “thorough attention had been given to each application in the moderation process.”
- Mr Pitt was cross-examined about the composition of selection panels and he accepted that one of the reasons for having two or more persons on a selection panel is to provide a more diverse range of perspectives so that the panel can assess the skills and qualifications of candidates in a more balanced way than if there was just one person undertaking the selection process. The general rule is that the members of a panel should stay the same so as to promote consistency in the assessment process. Having a single selection panel rather than two promotes consistency. The authorised officer who is delegated the power to make the appointment relies upon the report of the selection panel, among other things, in order to be satisfied that the process has been fair and that there has been a proper assessment of candidates.
- Mr Pitt was taken to the matrix for the applicant which indicated that Assistant Commissioner Lewis ranked the applicant more favourably against the selection criteria than did Assistant Commissioner Swindells in the first stage of the process. This sort of divergence was said to be quite common. Mr Pitt could not give any evidence about what ranking then Assistant Commissioner Stewart might have given the applicant if he had assessed his application at the first stage of the process, nor could he say how Assistant Commissioner Barron might have assessed it at that stage. As a result, he could not say what final moderated score would have been given if each member of the selection panel had separately and independently considered each application, including the applicant’s application.
Did the procedures provide the selection panel with the flexibility to depart from the requirement that each member “must consider each application separately and independently of other panel members”?
- I do not consider that the opening words of section 9.1 of the Manual, which I have underlined above (at [17]) and upon which the respondent relies, authorise a departure from the Manual’s requirements as to how any shortlisting process should be undertaken. Section 9 identifies five separate processes and states: “Which elements are adopted in particular selection exercises will depend on the nature and relative competitiveness of the applicant pool.” These words indicate that the circumstances of a particular case may permit a selection panel to dispense with one or more of these elements. For example, in a particular case in which there are a limited number of applicants with apparently equally strong claims for selection, a selection panel might choose not to undertake a shortlisting, but instead proceed to interview all of the applicants. In other cases it may be appropriate to dispense with other elements of the selection process. However, the opening words of section 9.1 do not indicate that where an element, such as shortlisting, is included as an element in the selection process, the selection panel is free to depart from the Manual’s procedures in relation to that process.
- The introductory parts of the Manual serve to emphasise the obligation of selection panels to adhere to both relevant legislative provisions and the requirements of the Manual. This appears in section 2 of the Manual (Purpose and Scope) and also in section 3 which reiterates that the proper conduct of merit based selection within the service requires, among other things, that all panel members conduct the selection process “in accordance with legislation and this policy”.
- The opening words of section 9 in relation to selection processes do not expressly or impliedly indicate that in undertaking a shortlisting process a selection panel may depart from the process stated in the Manual. As to the requirement that each member of the selection panel must consider each application separately and independently of other panel members, section 9.1.1 makes specific provision for departure from this requirement. This provision arises where there is a large applicant pool and the panel unanimously agrees that the shortlisting exercise may be conducted by not less than two members only, one of whom must be the panel convenor. In such a case, all applications are considered by the same members. Such a process might be said to achieve consistency of assessment, albeit at the expense of the diversity of assessment that might have been produced by all members of the panel separately and independently considering each application. Notably, section 9.1 does not make provision in the case of a large applicant pool for the applications to be divided, with some applications being separately considered by one sub-panel of not less than two members, and the balance being considered by another sub-panel. In the absence of express provision for such a shortlisting process, being a process which might lead to inconsistent assessments in the absence of a process of moderation, I do not consider that the Manual should be interpreted as providing authority for a selection panel to divide applications into two separate bundles, with each bundle being separately assessed by half the members of the panel, and not read by the others.
- The respondent relies upon the decision in Green v Commissioner of the Queensland Police Service[4] as authorising a degree of flexibility on the part of a selection panel in complying with the Manual’s procedures so as to ensure that an appointment is made by “fair and equitable procedures” in accordance with s 5.2(2) of the Act. Green concerned a challenge to a selection process on the basis that the process adopted failed to involve an assessment on merit. The process in that case was based upon a direction that required applicants not to include anything in their resumé after a certain period. The process was challenged as infringing the obligation to select on the basis of merit. Justice Helman concluded that there was no discretion to ignore merit in making a decision and that there was nothing in the Act that would justify excluding from consideration part of the officer’s performance of duties of office. The respondent in that case argued that those charged with making a decision had a discretion to formulate procedures that were fair and equitable having regard to the history of the process, and that this justified the action taken, namely excluding from consideration part of the respondent’s performance of duties of office. Justice Helman rejected this submission and stated:
“On my reading of s 5.2(2), however, there is no discretion to fail to invite applications, to select on any basis other than the merit of the applicants, or to prevent unjust discrimination whether in favour of or against a person. It may be accepted that there is some discretion as to procedural matters such as time limits and the place at which and the way in which applicants are interviewed, but such procedures too must pass the test of being fair and equitable. Some flexibility may then be permitted in devising appropriate procedures for deciding upon applications but there is no power to dispense with the three requirements set out in s. 5.2(a) and (b).”[5]
As noted above, s 5.2(2) requires a decision to appoint to be made “by fair and equitable procedures that—
(a)include inviting applications and selection on the basis of the merit of the applicants; and
(b)prevent unjust discrimination, whether in favour of or against a person.”
- I do not consider that the observations of Helman J go so far as to recognise a general discretion in a selection panel to depart from procedures in the Manual, subject only to the requirement that the procedures comply with the statutory requirements of s 5.2(a) and (b). Compliance with the Manual’s requirements is subject to the overriding statutory command contained in s 5.2. However, the overarching obligation to adopt fair and equitable procedures that include inviting applications and selection on the basis of the merit of applicants, and prevent unjust discrimination, does not confer a general discretion to depart from the Manual’s requirements.
- In the passage from the judgment of Helman J that I have quoted, reference is made to “some discretion as to procedural matters such as time limits and the place at which and the way in which applicants are interviewed”. The existence of a discretion in relation to such matters may be accepted. For example, to require an applicant to attend an interview at a particular time when the applicant is about to give birth to a child, or is required to perform important operational duties that cannot be delayed, would make it unfair to insist that the applicant attend at the specified time. Incidentally, section 9.2.1 of the Manual addresses this kind of problem to some extent. However, any discretion as to these kinds of “procedural matters” does not justify a departure on matters of practical significance to the fairness of the procedure, or which imperil the objective of selection on the basis of merit.
- The Manual’s requirement that each member of the panel must consider each application separately and independently of other panel members assumes significance in light of the requirement fairly to assess applications on their merit. It permits a diversity of views to be applied in the assessment of each application, and for each application to be considered by the same persons, namely all members of the panel. The Manual makes specific provision for an alternative procedure when there is a large applicant pool. Given the practical significance of the obligation on each member of the panel to consider each application separately and independently of other panel members, I do not consider that it is the kind of procedural matter to which Helman J alluded in Green. A process by which all members of the panel consider all applications is not a matter of mere procedure. This aspect of the selection process is intended to facilitate appointment on merit by a fair process.
- If, however, a selection panel decides not to comply with this requirement, its departure from the process established by the Manual should be documented in the final selection report. Such a documentation of a departure from the required process enables the authorised officer to determine whether the departure may be justified on the basis that the different procedure was necessary to provide a fair and equitable procedure in the circumstances. Such a disclosed non-compliance with the shortlisting procedure enables the respondent or the respondent’s delegate to consider whether the process that was undertaken had the potential for inconsistent and unfair assessments which might not be adequately cured by a process of moderation between the two persons who had read some of the applications and the two other members of the panel who had not.
- In simple terms, a process that does not comply with the Manual’s procedure because the applications are divided and only read by a sub-panel carries the risk that some applications will be assessed by a “harder marker”, and not qualify for interview as a result. Such a process has a practical significance for, and may not lead to, selection on the basis of merit. Because of its practical significance for outcomes, I do not consider that a selection panel has a discretion to depart in this fashion from the requirement that each of them consider each application, at least where such departure is not sought to be justified on the grounds of fairness.
- I do not consider that the respondent’s reliance upon the Court of Appeal decision in Cuttler v Browne[6] meets the point that the selection panel’s failure to comply with the requirements of the Manual (being directions given by the Commissioner under s 4.9 of the Act) is a failure to follow procedures required by law. Cuttler concerned a disciplinary hearing. The applicant in that case had declined to accept service. He had not been served personally by a member of the Queensland Police Service, but had notice of the hearing. The applicant had frustrated attempts to serve him and the delay in the disciplinary hearing was incompatible with the “efficient and proper administration” of the police service. The Court concluded that the second respondent acted lawfully in proceeding with the disciplinary hearing notwithstanding non-compliance with the provisions as to service in the Manual. Having reached this conclusion, Muir JA (with whom Holmes and Fraser JJA agreed) stated that it was unnecessary to consider the question of whether, assuming that the second respondent was bound to comply with the provision of the Manual in the circumstances under consideration, her failure to do so invalidated her decision. However, in deference to arguments that had been advanced on the question of invalidity, Muir JA made certain observations in relation to it. After considering the Manual’s requirement in relation to service and the fact that the contents of the Manual could not operate to restrict the power of the Commissioner to do, or cause to be done, all such lawful acts and things as the Commissioner considers to be necessary for the “efficient and proper discharge of the [Commissioner’s] prescribed responsibility”, Muir JA concluded that it was unlikely that it was the intention of the Commissioner, as the author of the Manual, that any failure to comply with the notice provision would result in the invalidity of a disciplinary hearing. Reference was made to Project Blue Sky Inc v Australian Broadcasting Authority.[7] The requirement for service by a “member of the Service” was described as “peripheral” to the central purpose of the notice provision. It related to the manner of providing timely and effective notice. It was procedural in nature and was directed at ensuring that due notice was given of the allegations.[8]
- Some of the paragraphs from Cuttler upon which the respondent in these proceedings placed reliance are concerned with the issue of whether non-compliance with the requirement for personal service by a member of the Service invalidated the decision made at the disciplinary hearing, assuming an obligation to comply with that requirement. I am not presently concerned with an issue of invalidity. The applicant does not contend for a finding of invalidity on the grounds of non-compliance with a procedural provision which, properly construed, is productive of invalidity as a matter of law. The present issue is whether there has been compliance with procedures that were required by law to be followed in relation to the decisions to appoint. I am prepared to accept, for the purpose of argument, the respondent’s contention that non-compliance with the relevant provisions of the Manual did not render the subsequent appointments invalid. The issue, however, is not one of the invalidity of those decisions arising from a failure by the selection panel to comply with a procedural requirement. The issue is whether the applicant has established the ground of judicial review relied upon. A decision may be amenable to judicial review where failure to comply with a procedural requirement, of itself, does not render a subsequent decision invalid. Instead, having established a ground of judicial review, in this case the ground specified in s 20(2)(b) of the JR Act, an issue may arise as to the appropriate relief, including whether an order should be made for the subsequent decision to be set aside.
- In Cuttler, the Court of Appeal rejected the contention that the failure to serve the applicant strictly in accordance with the Manual’s provisions for service rendered the Deputy Commissioner’s disciplinary decision unlawful. The basis for the Court’s rejection of that contention was that the Manual’s directions in relation to service did not deprive the Commissioner of the powers and authorities vested in him under s 4.8 of the Act. The Manual’s directions about service could not deprive the Commissioner of statutory authority in a particular case to do “all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge” of the Commissioner’s responsibility for the “discipline of members of the service”.[9] Section 4.9 of the Act expressly acknowledges that a direction of the Commissioner is of no effect to the extent that it is inconsistent with the Act. In that case the evidence established that the Deputy Commissioner, as the Commissioner’s delegate, considered it at least desirable, for the proper discharge of her duties in disciplining a police officer, to dispense with strict compliance with the Manual’s requirements in relation to service. The applicant had frustrated the attempts to serve him and the further delay of the disciplinary hearing was incompatible with the “efficient and proper administration” of the police service.[10] In the circumstances, the Commissioner’s statutory authority to conduct the disciplinary hearing in a way that discharged the Commissioner’s responsibility for the discipline of members of the service permitted the Commissioner’s delegate to dispense with strict compliance with a direction contained in the Manual. The conclusion was that the Commissioner’s delegate acted lawfully in proceeding with the disciplinary hearing notwithstanding non-compliance with the provisions in relation to service contained in the Manual.
- The present circumstances are not comparable. The Commissioner did not conclude that it was necessary or convenient for the efficient and proper discharge of the Commissioner’s responsibility for the selection of persons as Inspector to dispense with compliance with the Manual’s directions in relation to the selection process. The occasion to do so did not arise because the selection panel’s report did not disclose its departure from the Manual’s requirements in relation to shortlisting. The Commissioner has power to make an appointment notwithstanding non-compliance with the Manual if to do so is necessary or convenient for the efficient and proper discharge of the Commissioner’s relevant responsibility. The Commissioner did not purport to exercise that power notwithstanding non-compliance with the Manual. I am not concerned with the Commissioner’s power to make an appointment notwithstanding non-compliance with the Manual in circumstances in which the Commissioner considered that such a course was desirable. The Commissioner’s power to appoint is one thing. The selection panel’s procedure is another. The Commissioner’s power to appoint in certain circumstances, notwithstanding the failure of a selection panel to comply with the procedure that it is required to follow, does not alter the fact of the selection panel’s non-compliance with that procedure in a case in which those circumstances are not alleged to have arisen.
- Cuttler does not assist the respondent in resisting the conclusion that the selection panel in this case failed to observe procedures that were required by law to be observed.
The failure to comply with the requirement that each member of the selection panel consider each application separately and independently of other panel members
- The selection panel adopted a practical course. The 74 applications were divided into two bundles due to the number of applications received. I am not concerned with the merits of the decision to divide them into two bundles, with two members of the selection panel assessing the applications in one bundle and the other two members assessing the balance. My concern is not with the practicality or merits of that conduct, only with whether such a course complied with procedures that were required by law. The decision to divide the applications into two bundles and to have each bundle assessed by, in effect, a sub-panel might commend itself to many as a practical and fair procedure in circumstances in which members of the panel, individually and collectively, may have had limited time to read and assess all of the applications. It might be said that such a course was preferable to having each member of the panel read each application, under pressure of time, with the risk of an unfair assessment. The adoption of a process of moderation, of the kind undertaken in this case, was likely to reduce the risk of inconsistency. Whilst these and other arguments might be advanced in support of the practicality of the course taken by the selection panel, the issue is not one of practicality. The issue is one of compliance with requirements and whether the Manual must be strictly complied with.
- I have reached the conclusion that, contrary to the respondent’s arguments, the selection panel was required to follow the relevant provision of the Manual in relation to the conduct of the shortlisting in the circumstances of the case. That provision required each member of the panel to consider each application separately and independently of other panel members. The provision also permitted a departure from this requirement where there was a large applicant pool and the panel unanimously agreed that the shortlisting be conducted by not less than two members only, one of whom must be the panel convenor. This exception was not invoked by the selection panel. Whatever flexibility is permitted in relation to the kind of procedural matters to which Helman J alluded in Green, I am not persuaded that it was open to the selection panel to depart from the Manual’s requirement that each of them consider each application separately and independently of other panel members. There is no evidence that the panel members concluded that such a course was necessary so as to ensure fair and equitable procedures to achieve the selection on the basis of their merit. This is not a case in which the Commissioner or the Commissioner’s delegate decided that departure from the Manual’s requirements was necessary or convenient for the efficient and proper discharge of the responsibility to appoint Inspectors to the vacancy. The authorised officer making the eventual decisions may have reached that conclusion had the respects in which the selection panel not complied with the Manual’s requirements as to shortcoming been disclosed in the selection panel’s report. However, the matter did not come to that because the non-compliance was not reported.
- I conclude that the applicant has established the first basis upon which he contends that procedures that were required by law to be followed in relation to the making of the decisions were not observed.
- I am not persuaded, however, that the selection panel’s failure to comply strictly with the procedures required by the Manual meant that the decisions were not made by fair and equitable procedures of the kind required by s 5.2(2). Although the evidence before me in relation to the process of moderation is limited, no argument was advanced as to why the view taken by the Commissioner for Police Service Reviews should not be accepted. I am not persuaded that the shortlisting process, which included what was described as “a rigorous moderation discussion” with the applications in front of all members of the panel did not constitute a fair and equitable procedure by which to determine those applicants who had strong apparent claims for selection and for whom a more comprehensive consideration was warranted.
The applicant’s second complaint
- As to the second basis of the applicant’s claim of procedural irregularity, I am not persuaded that the selection panel’s requirement that only applicants who received at least four “medium” ratings should be shortlisted amounted to the setting of an “arbitrary exclusion point”. Some standard was required. There is no sound basis to conclude that the standard selected by the panel was arbitrary. A standard that required more or less medium ratings also could be described as arbitrary. The fact that the standard, as applied, resulted in 37 of the applicants being granted an interview does not prove that it was arbitrary. The fact that 32 of the 37 applicants who were interviewed eventually were appointed does not prove that an arbitrary exclusion point was selected. The Manual did not require the selection panel to shortlist applicants who were not considered to have strong apparent claims for selection. There is no evidence that the selection panel had resolved early in the selection process that 32 of the 37 applicants selected for interview would be recommended for appointment. The fact that, as matters transpired, the subsequent stages of the selection process led to 32 applicants being recommended for appointment does not support the conclusion that the selection panel set an arbitrarily high standard at the shortlisting phase. The question may be asked whether adoption of less demanding standards whereby a shortlist of 45 or 55 or some other figure was achieved would have been any less arbitrary. Because I am not persuaded that the requirement of at least four medium ratings out of seven was arbitrary, the second basis for challenge is not established.
The applicant’s third complaint
- The third basis for the applicant’s challenge is established. The process used for shortlisting applicants was not accurately documented in the selection report. The report’s reference to the process of moderation was not apt to inform a reader of the report of the fact that, contrary to the requirements of the Manual, each member of the selection panel had not considered each application separately and independently of other panel members.
Conclusion – failure to follow procedures required by law: s 20(2)(b) of the JR Act
- The applicant has established his first ground for judicial review, namely that procedures that were required by law to be followed in relation to the making of the decisions were not observed.
Alleged breach of natural justice
- My conclusion that the applicant has established a ground for judicial review under s 20(2)(b) of the JR Act makes it unnecessary to consider his alternative ground that there was a breach of the rules of natural justice.
Remedies
- By his further amended application for a statutory order of review, the applicant claims:
“1.An Order quashing or setting aside the Respondent’s decision (sic) and referring the issue of whether the Applicant should be promoted to the position back to the Respondent.
- An Order to set the effective date of appointment of officers against this vacancy to be fixed to the original effective appointment date.”
At the hearing of the application I raised issues in relation to the appropriateness of such remedies, including their implications for the many Senior Sergeants who were promoted to the position of Inspector as a result of the decisions under review, their absence as respondents to the present proceedings, the disruption to the due administration of the Queensland Police Service by having their appointments set aside years after the decisions in question and the practical problems posed in undertaking a new selection process once their appointments were set aside.
- The parties agreed that the issue of appropriate relief should be stood over for further argument. As presently advised, I am reluctant to set aside the various decisions that were made and gazetted in 2008, thereby necessitating a complicated reassessment of applications, including applications by individuals who have served as Inspectors for a substantial period.
- The applicant sought and failed in attempts to review the appointment of some of these officers. This aspect also raises questions as to whether it is appropriate to set aside the appointment of all of the individuals who were appointed as a result of the decisions.
- As presently advised, the applicant is entitled to a declaration that procedures that were required by law to be followed in relation to the making of the decisions were not observed in that:
(a)each panel member did not consider each application separately and independently of the other panel members when shortlisting applications; and
(b)the process for shortlisting applicants was not fully documented in the selection panel’s final selection report.
The precise terms of any declaratory relief would need to be the subject of submission and appropriate forms of order since the applicant has not sought declaratory relief.
- This is not a case in which an applicant has established a failure to comply with a statutory requirement, the inevitable consequence of which is the invalidity of a subsequent decision. The applicant has the task of persuading me as to why it is appropriate at this stage, as a matter of discretion, to set aside all of the decisions under review.
- It is appropriate to allow the parties an opportunity to consider a practical resolution of the application in the light of my findings. Because of the procedural irregularity that I have found, the applicant may have lost an opportunity to be shortlisted for an interview and, depending upon the outcome of that interview, the opportunity to be recommended for appointment. These proceedings do not provide the vehicle by which such an opportunity is to be assessed. In particular, I am not asked to decide, and am not in a position to decide, whether strict compliance with the Manual’s requirements would have led to a different result. The outcome of the review proceedings tend to suggest otherwise. However, the respondent did not argue that relief should be denied to the applicant because, had the procedure been conducted differently and in strict compliance with the Manual, he still would not have been shortlisted or, if shortlisted, he would not have been successful in obtaining the selection panel’s recommendation for his appointment.
- In the circumstances, the appropriate course is to accept the parties’ submissions at the hearing that the question of relief be stood over. The parties should be given the opportunity to resolve the matter. If they are unable to resolve the matter then the matter will need to be re-listed for further argument in relation to appropriate relief and the issue of costs. The only direction which I will make at this stage is that the proceedings be adjourned to a date to be fixed. I will hear the parties as to appropriate directions for its further conduct.
Footnotes
[1] [2010] QCA 346.
[2] Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at 13, [2003] HCA 6 at [36] per Gleeson CJ.
[3] Green v Commissioner of the Queensland Police Service [2006] QSC 323 at [6].
[4] [2006] QSC 323.
[5] Ibid at [21].
[6] [2010] QCA 346.
[7] (1998) 194 CLR 355, [1998] HCA 28; see Cuttler v Browne [2010] QCA 346 at [35]-[36] per Muir JA.
[8] Cuttler v Browne [2010] QCA 346 at [42] per Muir JA.
[9] Ibid at [28].
[10] Ibid at [31].