O'Keefe v Commissioner for Police Service Reviews
[2015] QSC 57
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- Notable Unreported Decision
- O'Keefe v Commissioner for Police Service Reviews[2015] QSC 57
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O'Keefe v Commissioner for Police Service Reviews[2015] QSC 57
O'Keefe v Commissioner for Police Service Reviews[2015] QSC 57
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application for judicial review |
DELIVERED ON: | 24 March 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 March 2015 |
JUDGE: | Jackson J |
ORDER: | The order of the court is that: 1. The application is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where the applicant is a police officer in the Queensland Police Service – where the applicant was suspended without remuneration by the second respondent – where the second respondent was a police officer to whom the Police Commissioner had delegated his decision-making power – where the first respondent is the Commissioner of Police Service Reviews – where the applicant applied to the first respondent for review of the second respondent’s decision – where the applicant subsequently applied for judicial review of the first respondent’s decision – whether the first respondent had improperly exercised his powers under the Police Service Administration Act 1990 (Qld) and Police Service and Administration (Review of Decisions) Regulation 1990 (Qld) Acts Interpretation Act1954 (Qld), s 38(4) Judicial Review Act 1991 (Qld), ss 19, 20(2)(e), 20(2)(f), 23(g) Police Service Administration Act 1990 (Qld), ss 4.10, 6.1, 6.3, 7.4, 9.2A, 9.3, 9.4, 9.5 Police Service and Administration (Review of Decisions) Regulation 1990 (Qld), rr 8, 13 Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327, referred to Green v Commissioner of Queensland Police Service [2006] QSC 323, cited Mills v Commissioner of the Queensland Police Service [2011] QSC 244, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, referred to The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, referred to Rucker v Stewart [2013] QSC 182, considered Rucker v Stewart & Ors [2014] QCA 32, considered |
COUNSEL: | A Scott for the applicant P McCafferty for the respondent |
SOLICITORS: | QPU Legal Group for the applicant Senior Legal Officer of the Public Safety Business Agency for the second and third respondents |
[1] Jackson J: This is an application made under s 20 of the Judicial Review Act 1991 (Qld) (“JR Act”) for judicial review of the first respondent’s decision to recommend to the third respondent that the decision of the second respondent, as the delegate of the third respondent, to suspend the applicant from duty as a police officer without remuneration be affirmed.
[2] The applicant is an officer in the Queensland Police Service. The third respondent is the Commissioner of the Police Service. The second respondent is a Deputy Commissioner of the Police Service. Under s 6.1(1)(b) of the Police Service Administration Act 1990 (Qld) (“PSA”), the Commissioner has the power to suspend the officer from duty if an officer is charged with an indictable offence. Under s 6.3 of the PSA, the Commissioner has the power to determine in a particular case that a suspended officer is not entitled to be paid salary and allowances. Under s 4.10 of the PSA, the Commissioner may delegate his or her powers to a police officer.
[3] On 8 July 2014, the applicant was suspended without remuneration to take effect from 18 July 2014. The decision was made by the second respondent acting as delegate of the third respondent.
[4] Pursuant to s 9.3 of the PSA, the applicant applied for a review of the second respondent’s decision. The first respondent is the Commissioner for Police Service Reviews appointed under s 9.2A of the PSA. By s 9.3(3) of the PSA, the first respondent is conferred power to hear and consider all applications for review under Pt 9 of the PSA and to make recommendations relating to any matters relevant to a review under that part.
[5] On 5 January 2015, the first respondent made a recommendation that the second respondent’s decision be affirmed. Under s 9.5 of the PSA, the Commissioner upon consideration of the matter reviewed and having regard to the recommendations made is to take such action as appears to the Commissioner to be just and fair.
[6] On 3 February 2015, the applicant applied for judicial review of the first respondent’s decision. The application characterises the decision as a decision under s 13 of the Police Service and Administration (Review of Decisions) Regulation 1990 (Qld) (“the Regulation”). More precisely or accurately, in my view, it is characterised as a recommendation made under s 9.5(1) of the PSA, engaging the Commissioner’s power upon consideration of the recommendations to take such action as appears to the Commissioner to be just and fair. In fact, the Commissioner took no such action based on the recommendation.
[7] The grounds of the application are that the first respondent did not have jurisdiction to make the decision (ground one) and that the making of the decision was an improper exercise of power because it was so unreasonable that no reasonable person could so exercise the power (ground two). The particulars of ground one appearing in the application make it clear, however, that the complaint made is of an error of law, because it is alleged that the first respondent erroneously found that it was not within the scope of his function to consider the strength or otherwise of the evidence relating to the charge made against the applicant. As to ground two, the particulars make it clear that the challenge made is not to the strength or weakness of the evidence against the applicant in respect of the offence with which he has been charged. Rather, the complaint is that the first respondent failed to grant the applicant a requested adjournment, during which it might transpire that the relevant charge will not proceed.
The stances of the respondents
[8] At the first directions hearing, the first respondent indicated that he would abide the order of the court and take no further part in a proceeding. That stance is consistent with well-established practice and the decision of the High Court in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman.[1]
[9] However, at the beginning of the substantive hearing of the application, the second and third respondents announced by their counsel that they too would abide the decision of the court. That position was somewhat surprising.[2] It leaves the court in the position that there is no contradictor to the submissions made by the applicant and no supporter of the first respondent’s decision.
[10] As previously stated, the result of a review of the second respondent’s decision by the first respondent necessarily is a recommendation under s 9.5(1) of the PSA. Section 9.5(2) of the PSA then requires the Commissioner to consider the matter reviewed and have regard to the recommendations made. Having done so he or she is to take such action as appears to be just and fair. It was not submitted, however, that if the Commissioner or Deputy Commissioner were to seek to support the decision of the first respondent in this court they would be unable to consider the matter again, if that decision is set aside and upon the conclusion of the review a further recommendation is made by the first respondent. I am not aware of an authority which characterises such conduct in a context like the present as improper or as a basis for disqualification if the matter were at some point to return to the Commissioner or Deputy Commissioner under s 9.5(2) of the PSA.
[11] If there is no other appropriate contradictor, it might be undesirable for the Commissioner or his delegate to take a fence-sitting position, as opposed to a more positive stance, as to the disposition of an application for judicial review of the decision of a Commissioner of Police Service Reviews which is subjected to an application for judicial review. The Commissioner or his delegate’s representative does not take a fence-sitting position at the hearing of a review before the Commissioner of Police Service Reviews. It is not easy to see why the court should be treated differently. However, since the matter was not fully argued, it is better not to say more about it on this application.
Ground one
[12] The applicant used the language of jurisdictional error in both the statement of this ground and in developing his argument by reference to case law. Because a recommendation under s 9.5(1) of the PSA is a decision of an administrative character made under an enactment, it is a decision to which the JR Act applies, with the consequence that this court has jurisdiction to hear and determine an application[3] for a statutory order of review in relation to the decision.[4] The possible grounds for an application include that the decision involved an error of law.[5] It is not necessary, in order to decide ground one, to decide whether or not the first respondent made a jurisdictional error. It would be enough that an error of law was involved in making the decision.
[13] Section 6.1 of the PSA provides that:
“(1)If—
(a)it appears to the commissioner, on reasonable grounds that—
(i) an officer is liable to be dealt with for corrupt conduct; or
(ii) an officer is liable to disciplinary action under section 7.4; or
(iii) the efficient and proper discharge of the prescribed responsibility might be prejudiced, if the officer’s employment is continued; or
(b)an officer is charged with an indictable offence; or
(c)an officer is unfit for reasons of health to such an extent that the
officer should not be subject to the duties of a constable;
the commissioner may—
(d)stand down the officer from duty as an officer and direct the person
stood down to perform such duties as the commissioner thinks fit; or
(e)suspend the officer from duty.”
[14] The applicant did not submit that in making a decision as to suspension under s 6.1 of the PSA the Commissioner is not be entitled to take into account the strength of a charge brought against an officer for an indictable offence as a relevant consideration in making the decision upon the review. The applicant also did not submit that in making a decision as to whether to determine in a particular case an officer suspended is not entitled to be paid salary and allowances under s 6.3 of the PSA, the Commissioner may not consider the strength of the relevant complaint or charge. That is supported by the text of s 6.1 of the PSA.
[15] Conduct defined in the PSA as “misconduct”, or “corrupt conduct” renders an officer liable to disciplinary action.[6] Such conduct may form the basis for the Commissioner to suspend an officer from duty under s 6.1(1)(a) of the PSA. Similarly, the Commissioner may suspend an officer from duty if the officer is charged with an indictable offence under s 6.1(1)(b) of the PSA.
[16] There is, however, a distinction between the Commissioner’s power to suspend under s 6.1(1)(a) of the PSA, on the one hand, and s 6.1(1)(b) of the PSA on the other hand. Subparagraphs (a)(i) and (ii), in particular, are only engaged where “it appears to the commissioner on reasonable grounds that” an officer is liable to be dealt with for corrupt conduct or liable to disciplinary action under s 7.4 of the PSA, whereas s 6.1(1)(b) of the PSA operates simply where the officer is charged with an indictable offence, regardless of whether it appears to the Commissioner if the charge is based on reasonable grounds.
[17] Nevertheless, in my view, in making the decision whether to suspend an officer from duty on the ground that the officer is charged with an indictable offence, the Commissioner is entitled to have regard to the strength of the circumstances surrounding the charge. On the other hand, that does not mean that the Commissioner is required to do so in every case.
[18] The operation of s 6.1 of the PSA, properly construed, also informs the power of a Commissioner for Police Service Reviews upon a review conducted under sections 9.3, 9.4 and 9.5 of the PSA. The authority or power to hear and consider an application for review is conferred by s 9.3(3)(a) of the PSA and the power to make recommendations is provided for under s 9.3(3)(b) of the PSA. The conduct of the review may be regulated or prescribed by regulations and is otherwise to be determined by a Commissioner for Police Service Reviews.[7] He or she is to have regard to the following principles: that the review is an administrative proceeding of a non-adversarial nature; that proceedings on a review should be informal and simple; and that legal representation is not permitted to any person.[8]
[19] The applicant submits that, properly construed, these provisions also permit a Commissioner for Police Service Reviews to consider the merits or the strength of the complaint or the charge made or to be made against the officer concerned.
[20] In Rucker v Stewart,[9] dealing with a matter under s 6.1(1)(a) of the PSA, I held that there is nothing in the statutory text or context to suggest that the hearing of the review is in the nature of judicial review of the stand down decision, that is a hearing directed or confined to the legality of the original decision rather than the merits of the decision. On appeal from that decision, in Rucker v Stewart & Ors,[10] de Jersey CJ said:
“In this case, the third respondent’s reasons showed that he comprehensively considered all of the material and endorsed the first respondent’s decision because he considered it to be the correct decision. The third respondent’s enquiry was not limited to the applicable legislation and policy: it explored the appellant’s more broadly based submissions, notwithstanding much of that material was largely irrelevant because it went to a final determination on the merit of the allegations.”
[21] It is unnecessary to set out further passages. In my view, the Court of Appeal’s decision in Rucker is not inconsistent with my earlier decision that a Commissioner of Police Service Reviews may have regard to the merits or strength of the complaint or charge made against an officer. But that does not mean that he or she is obliged to investigate the ultimate strength of those circumstances. Indeed, in many cases it will not be practicable or useful to do so to any significant extent. This is informed by the statutory context. Where the relevant conduct is misconduct or corrupt conduct, there is a threshold requirement that it appears to the Commissioner on reasonable grounds that the officer is liable to be dealt with for the conduct. It would anomalous if on the review of the original decision the Commissioner for Police Service Reviews were precluded from considering the same question, when that is or may be the first opportunity that the officer has to be heard at all. The last point also applies, in my view, to a review of a decision made under s 6.1(1)(b) of the PSA.
[22] In my view, on the proper construction of the relevant sections, where an officer charged with an indictable offence is suspended under s 6.1 of the PSA, the Commissioner for Police Service Reviews, on a review conducted under sections 9.3, 9.4 and 9.5 of the PSA, is not required to treat the merits or strength of the case against an officer as an irrelevant consideration. However, that does not mean that he or she must enter upon a consideration of the merits simply because the applicant wishes him or her to do so.
[23] The reasons for decision of the first respondent first dealt with an argument made by the applicant that the hearing of the review should be adjourned. He then described the nature of the investigation which led to the applicant being suspended without remuneration and continued thus:
“The criminal charge against the applicant is a serious one.
It is not for me to pass comment on the strength or otherwise of the evidence relating to the charge. Under s 4.8 of the Police Service Administration Act 1990, the Commissioner of Police has responsibility for the ‘efficient and proper administration of the management and functions of the police service in accordance with the law’”.
[24] Later the first respondent continued:
“Given the seriousness of the charge and the apparent seriousness of the conduct which is alleged against the Applicant, it seems to me that Deputy Commissioner Bill Goolschewski [sic] has made an appropriate decision to suspend without pay.”
[25] Later, he said:
“I accept that it is premature to ascribe guilt to the Applicant on the charge I do not do so. It is for the court to determine matters of guilt. However, it seems to me, that it was appropriate for the delegate of the Commissioner to take into account the likely public perception if it is later shown that the Applicant is guilty of the charge which is before the Court, or, if the Applicant is shown to have been guilty of misconduct in the course of his police service.”
[26] And later again, he said:
“The allegations against the applicant here are of such a serious nature as to justify a decision to disentitle the applicant to the payment of salary and allowances during the period of a suspension from duty.”
[27] In my view, neither the passages which I have set out, nor the reasons of the first respondent taken as a whole, lead to the conclusion that the first respondent misdirected himself in law as to whether or not he could take the merits or strength of the charges into account as a relevant consideration in making his decision on review. By necessity, there will be many cases when it will not be possible to conduct any meaningful assessment of such a question. In the present case, the context was that the first respondent did not have the materials which constituted the police brief for bringing the charges against the applicant before him. Although the applicant’s submissions to both the first and second respondents included a submission that the case against the applicant was weak, there was nothing inappropriate in the first respondent concluding that, in the circumstances, it was not for him to pass comment on the strength or otherwise of the evidence relating to charge. That is not the same thing as directing himself that, as a matter of law, he was not entitled to consider the strength or otherwise of the evidence.
[28] For those reasons, in my view, ground one must be rejected.
Ground two
[29] The applicant’s submissions on ground two seem surprising at first blush. That is because they charge the first respondent with making a decision that no reasonable decision maker could reach because the first respondent refused to adjourn the hearing of the application for review until some indefinite time in the future. The argument was that it might later appear that the charge against the applicant would not proceed or had no foundation.
[30] Such a submission is surprising for several reasons. To begin with, a decision to suspend with or without pay is plainly intended to operate in the general way described by the Court of Appeal in Rucker as follows:
“The situation is like that described in Lewis v Heffer …:
Very often irregularities are disclosed in a government department or in a business house: and a man may be suspended on full pay pending enquires. Suspicion may rest on him: and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours or suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended …”[11]
[31] Secondly, as already mentioned, the proceeding on review is to be informal and simple. Thirdly, under reg 8 of the regulations, the functions of a Commissioner for Police Service Reviews is specified to be “to conduct a review of all material provided by the parties to the review and relevant to the case at the time the case was decided”, indicating a focus on the quality of the original decision rather than later events. Fourthly, and perhaps most importantly, a decision to suspend an officer from duty operates subject to s 6.1(2) of the PSA which provides that:
“(2)The Commissioner may at any time revoke a standing down or suspension imposed under subsection (1).”
[32] As a matter of practicality, it is difficult to see why it should be necessary to adjourn the hearing of an application for review so as to consider a matter which may occur in the future, if there is power to revoke a suspension at any time. If the circumstances change, the suspended officer may apply to the Commissioner to revoke the suspension.
[33] In answer to the last point, the applicant submitted that there is a decision of the first respondent that a suspended officer has no right of review under s 9.3 of the PSA of a decision to refuse to revoke a suspension made under s 6.1(2) of the PSA. It is not necessary for me to decide whether or not that decision has that effect or, if it does, whether it was correctly made, in order to decide the present case.
[34] For present purposes, it is enough to say that, in my view, an officer who is suspended from duty under s 6.1 of the PSA may apply to the Commissioner to revoke the suspension under s 6.1(2) of the PSA on the ground that there has been a material change in circumstances. The applicant submitted that although such an application might be made, the Commissioner would be under no obligation to decide the application. In my view, that is unlikely to be the proper construction of s 6.1(2) of the PSA.
[35] The applicant submits that because the regulation imposes no statutory time limit for completing a review what is required is that the review be completed as soon as possible.[12] He submits that there is a possibility that at some date in the future the charge may be dismissed or dropped. He submits that such an outcome would have been relevant to the recommendation that the first respondent might have made on the review. The next step in the applicant’s argument involved a great leap. It was that because of the possibility of later occurring relevant facts, the first respondent’s decision not to adjourn the review was an exercise of power that was so unreasonable that no reasonable could so exercise the powers within the meaning of sections 20(2)(e) or 23(g) of the JR Act.
[36] The applicant tried to gain support from the recent decision of the High Court in Minister for Immigration and Citizenship v Li.[13]It is unnecessary to discuss the reasons for judgment in Li in any detail. There are a number of distinctions between the circumstances in Li and those of the present case. It is only necessary to refer to one. In Li, the refusal of the adjournment was fatal to the first respondent’s substantive application.[14] The substantive application was for review of the minister’s decision to refuse to grant a visa to a non-citizen. That is, the adjournment refused was of the hearing of the merits and had the effect of finally disposing of the rights of the applicant for a visa. Further, the particular reasons for refusing the application for the adjournment informed the court’s discussion in Li of the relevant “balancing exercise” in deciding whether or not to grant the adjournment. Those points have no significance in this case.
[37] In my view, the first respondent made no error in rejecting the applicant’s contention that it was not appropriate for a decision to be made on review of the second respondent’s decision as to suspension without pay to be made because of the possibility that at some future point in time the charge of an indictable offence brought against the applicant might be resolved in his favour in one way or another. Accordingly, in my view, ground two of the application should be rejected.
[38] It follows, in my view, that the application must be dismissed.
[39] Subject to any submissions that the respondents might make, in circumstances where the respondents have played no part in the court’s decision, either by tendering any evidence or making any substantive submissions, my provisional view is that it is appropriate that there be no order as to costs.
Footnotes
[1] (1980) 144 CLR 13, 35-36.
[2] Compare, for example, Green v Commissioner of Queensland Police Service [2006] QSC 323; Mills v Commissioner of the Queensland Police Service [2011] QSC 244; Rucker v Stewart [2013] QSC 182; on appeal [2014] QCA 32. See the discussion of the relevant principle in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327 at [58]-[81].
[3] Judicial Review Act 1999 (Qld), s 19.
[4] Judicial Review Act 1999 (Qld), s 20.
[5] Judicial Review Act 1999 (Qld), s 20(2)(f).
[6] Police Services Administration Act 1990 (Qld), s 7.4(2).
[7] Police Services Administration Act 1990 (Qld), s 9.4(1).
[8] Police Services Administration Act 1990 (Qld), s 9.4(2).
[9] [2013] QSC 182.
[10] [2014] QCA 32.
[11] Rucker v Stewart & Ors [2014] QCA 32, [13].
[12] Acts Interpretation Act 1954 (Qld), s 38(4).
[13] (2013) 249 CLR 332.
[14] (2013) 249 CLR 332 at 352 [31].