Hurley v Stewart[2016] QSC 154

SUPREME COURT OF QUEENSLAND

1. On 14 December 2015, the second respondent, as delegate of the first respondent, made a decision under s 6.1 of the Police Service Administration Act 1990 (Qld) (“the Act”) to suspend the applicant from duty as a member of the Queensland Police Service.  The suspension was with salary and allowances.
2. On 3 February 2016, the second respondent, as delegate of the first respondent, made a decision under s 6.3 of the Act to suspend the applicant from duty without salary and allowances. 
3. The applicant seeks to review each of those decisions pursuant to the Judicial Review Act 1991 (“the JR Act”).  The sole ground of review is that each of the decisions was an improper exercise of the power.  At issue is whether each of the decisions was so unreasonable that no reasonable person could so exercise the power. 

Background

4. The applicant was born on 25 April 1968.  He has two children.  He has been a member of the Queensland Police Service for almost 30 years.  He holds the rank of senior sergeant.  He has no qualifications or experience in other occupations. 
5. The first respondent is the Commissioner of Police.  The second respondent is the Assistant Commissioner of Police in charge of the Ethical Standards Command, with responsibility for its management.  Ethical Standards Command is responsible for the investigation of complaints relating to police misconduct and corruption. 
6. On 17 May 2015, the applicant was performing duties as a police officer within the Gold Coast police district when he became engaged in the pursuit of a stolen vehicle said to contain suspects responsible for a number of violent robbery offences.  The pursuit was tracked from the air.  At some point, officers involved in the pursuit on the ground were directed to terminate the pursuit. 
7. The applicant’s conduct in the pursuit was the subject of investigation by the Queensland Police Service Ethical Standards Command.  The allegations the subject of that investigation were that the applicant had engaged in an unauthorised pursuit, drove a motor vehicle in a manner likely to endanger other road users and recklessly discharged his firearm.  It is alleged the applicant continued the pursuit of the vehicle, contrary to a general instruction for officers to terminate the pursuit.  It is further alleged the applicant drove his vehicle in a manner which caused the allegedly stolen vehicle to leave the roadway and that whilst that vehicle was attempting to further flee the scene, the applicant discharged his firearm. 
8. On 20 May 2015, the second respondent made a decision to stand down the applicant from duty pending the outcome of that investigation.  As a consequence of that decision the applicant was no longer able to perform the duties of a police officer.  He was no longer allowed to wear police uniform or use police identification.  The applicant was, however, allowed to continue to perform administrative duties.  The applicant performed those administrative duties as a civilian within the Queensland Police Service, under the supervision of another officer. 
9. In or about October 2015, a complaint was made by the applicant’s former partner, also a member of the Queensland Police Service, that the applicant had engaged in domestic violence.  The applicant’s relationship with his ex-partner had broken down in June 2013.  On 29 October 2015, the applicant consented, without admissions, to the imposition of a domestic violence order for a period of six months.  The aggrieved person was his ex-partner.  One of the conditions of that order was that the applicant be of good behaviour towards his ex-partner and not commit domestic violence. 
10. The domestic violence order had been sought on the application of a member of the Queensland Police Service, following allegations of several incidents between the applicant and his ex-partner.  Those incidents concerned oral statements allegedly made by the applicant to his ex-partner, including derogatory assertions about his ex-partner’s new partner.  None of those incidents involved allegations of physical injury to his ex-partner or of damage to property. 
11. On 11 December 2015, the applicant attended his children’s school.  At the time he was on duty in that he was rostered to work as a civilian within the Queensland Police Service.  It is alleged an incident, involving the applicant, his ex-partner, and her new partner, occurred on the street outside that school.  The applicant is alleged to have engaged in a heated verbal altercation with the new partner in front of members of the public.  This altercation was of sufficient magnitude to cause a member of the school staff to step in and try to placate the situation.  Another staff member allegedly requested the applicant leave the area.  There is no allegation that incident involved physical injury or damage to property. 
12. On 11 December 2015, the applicant was issued with a notice to appear in the Magistrates Court at Southport in respect of an offence of having contravened the domestic violence order made on 29 October 2015.  That offence is alleged to have arisen out of the incident outside the school earlier that day. 
13. On 14 December 2015, an Executive Briefing Note was provided to the second respondent detailing the circumstances of the decision to initially stand down the applicant, of the imposition of the domestic violence order by consent and without admissions, and of the alleged breach of that domestic violence order by the applicant.  A recommendation was made that the applicant be suspended with pay. 
14. On 14 December 2015, the second respondent made the decision to suspend the applicant from duty.  The applicant was also served with a Show Cause Notice as to why he should not be suspended without salary and allowances.  The applicant was afforded 14 days to provide submissions in reply.  The applicant subsequently provided written submissions in response to the Show Cause Notice.  The applicant also provided supplementary submissions in response to a request for further information. 
15. The applicant’s submissions contended there was no basis to suspend him without salary and allowances.  It was further contended that any decision to do so would cause the applicant and members of his family irreparable financial harm.  Significant financial information was provided in these submissions, detailing the applicant’s financial circumstances, his financial obligations, including in respect of a mortgage over a property in which his elderly pensioner parents resided, and the consequences on his children.  The applicant also detailed his difficulties in obtaining other income sources whilst suspended from the Queensland Police Service. 
16. On 3 February 2016, the second respondent made the decision to suspend the applicant without salary and allowances.  The applicant was served with a notice informing him of that decision. 

The decisions

17. Relevantly, the notice of the decision to suspend the applicant on 14 December 2015 contained the following:

“It has been brought to my notice by the Chief Superintendent, District Officer, Gold Coast District that investigations have commenced into allegations that you breached a domestic violence and family protection order issued on 29 October 2015.

At the time of the breach you were also subject of a stand down notice issued on 20 May 2015 regarding allegations that you, engaged in an unauthorised pursuit, drove a motor vehicle in a manner likely to endanger other road users, and recklessly discharged your firearm.

Having considered Executive Briefing Notes dated 20 May 2015 and 14 December 2015, and a witness statement dated 11 December 2015 (attached) it appears to me on reasonable grounds that you are liable for disciplinary action under section 7.4 of the Police Service Administration Act 1990 (the Act).

After considering relevant factors, in particular the serious nature of the allegations and the direct conflict between the alleged conduct and your functions as a police officer, I have decided to take suspension action under the Act.  Under section 6.1 of the Act and the Human Resource Delegations and Approval Authorities you are suspended from duty without the loss of salary and allowances.”

18. Relevantly, the notice of the decision to suspend the applicant without salary and allowances on 3 February 2016 stated:

“Having considered all the materials available to me and the circumstances of this matter, I am of the view the conduct you are accused of committing is serious and escalating in nature, and if proven, is incompatible with your official duties and responsibilities as a police officer.  This incompatibility, has created a conflict of interest and regardless of it being actual or apparent, I have determined this conflict of interest must be resolved in favour of the Police Service and the public interest.

I note your submissions as to the effect any decision to suspend you without salary and allowances might have on your private interests, particularly your children and elderly parents.  I have considered your submissions and am not persuaded your private interests outweigh those of the Police Service and the public interest.  Nothing in your submissions convinces me your loss can’t be mitigated by reasonable adjustment by you of your private interests. 

I make the observation that pursuant to section 4.8 of the Act, the Commissioner has the responsibility for the efficient and proper administration, management and functioning of the Police Service in accordance with law.  Critical to the Commissioner’s responsibilities are the protection of the reputation of the Police Service and maintaining community confidence which are essential factors in our ability as an organisation to fulfil our statutory functions. 

In accordance with Section 6.3 of the Act, I have determined you are to be suspended from duty without salary and allowances until further advised. 

The suspension without salary and allowances shall take effect form midnight on 3 February 2016 and will remain in force until advised otherwise.  The suspension with salary and allowances imposed by me on 14 December 2015 shall continue until that time and date.”

Evidence

19. Calvin Gnech, a solicitor with the Queensland Police Union Legal Group, provided an affidavit detailing the circumstances of the allegations against the applicant in relation to the police pursuit, the making of the domestic violence order and its alleged breach.  In addition, Mr Gnech provided information as to the extreme delays in the determination of police disciplinary matters, the consequences generally for police officers charged with disciplinary breaches who are deprived of salary and allowances, and the specific effect on the applicant of any decision to suspend him without salary and allowances.  That latter information was based on the applicant’s instructions. 
20. The respondent objected to the information in Mr Gnech’s affidavit that detailed the determination of police disciplinary matters on the basis it contained opinion or comment or was irrelevant.  Whilst those statements are in the nature of opinion or comment and parts of the affidavit are of marginal relevance I am not satisfied those statements are inadmissible.  However, I have afforded little weight to the opinions or comments of Mr Gnech.
21. The applicant provided an affidavit confirming the accuracy of information previously provided by way of submissions in response to the Show Cause Notice as to why he ought not be suspended without pay, and in Mr Gnech’s affidavit.  In summary, the applicant’s primary source of income is his salary and allowances from the Queensland Police Service, he has significant financial obligations, including responsibility for a mortgage over a property occupied by his elderly pensioner parents, he will suffer irreparable financial harm if he is suspended without salary and allowances and that harm will directly impact on his children and his elderly parents.  The applicant also had limited available alternate forms of employment whilst suspended, particularly as he required the approval of the first respondent to engage in that employment and the first respondent would not approve members of the Queensland Police Service being employed as security officers. 
22. The second respondent also filed affidavits in this proceeding.  In those affidavits, the second respondent listed factors he considered relevant to the exercise of a discretion to suspend an officer without salary and allowances.  Those relevant factors included, but were not limited to:

“•The possibility of suspending with salary and allowances;

•The nature of the alleged conduct, including whether the alleged conduct could constitute criminal behaviour, and the conflict of the alleged conduct with the objectives of the Queensland Police Service;

•The objective seriousness of the alleged misconduct or corrupt conduct, including a general assessment of the weight of evidence available and the likely sanctions available to the prescribed officer (if substantiated);

•The relevant disciplinary history of the relevant officer, including whether the officer has been subject to discipline for similar conduct previously, or disciplined for unrelated matters which suggest the conduct of the officer’s conduct is escalating or previous measures to address the conduct have failed to remedy the issues;

•The potential risk of compromising the reputation of the Queensland Police Service, including the community’s expectation that misconduct or corrupt conduct by police officers will not be tolerated;

•The potential risk of the officer’s conduct and presence in the workplace adversely affecting the emotional well-being of any employee or clients of the Queensland Police Service;

•The potential impact on the effective operation of Departmental policies, and programs, of suspending the officer as opposed to the standing the officer down or transferring the officer to alternate duties;

•The likely period of time that will pass before any relevant criminal and/or disciplinary investigations or proceedings will conclude;

•The personal interests for the officer maintaining their pay and allowances; and

•The public interest.”

23. The second respondent said he initially determined to stand down the applicant, pending the investigation into his conduct on 17 May 2015.  He made that decision because he determined that those allegations, if proven, “rendered the applicant liable to disciplinary action” and were of a sufficiently serious nature that “immediate action was required to protect the safety of the public, and to maintain the reputation of, and the community confidence in, the Queensland Police Service”. 
24. The second respondent said upon receiving information regarding the applicant’s alleged conduct in relation to another police officer, which resulted in a domestic violence protection order being made by consent and without admissions (in respect of which a disciplinary investigation had been commenced), and information that the applicant had allegedly breached the terms of the domestic violence protection order through conduct engaged in while on duty and in front of members of the public, he determined those allegations rendered the applicant liable to disciplinary action and were sufficiently serious to warrant immediately action to protect the safety of the public, and to maintain the reputation of, and the community confidence in, the Queensland Police Service. 
25. The second respondent said:

“18.I was mindful that the Applicant had already been stood down from duties as an officer for serious misconduct including failing to comply with Queensland Police Service policies and directions, had appeared to have failed to comply with a Domestic Violence Protection Order which contained orders designed to protect the complainant from harm and was now facing criminal charges for the alleged breach of the domestic violence order.

19. Having regard to the collective seriousness of the allegations against the Applicant in relation to the three investigations, the weight of available evidence and the lack of any apparent mitigating circumstances or explanations and the apparent ongoing failure to adhere to measures designed to address the Applicant’s conduct, I determined that the collective nature of the alleged conduct was sufficiently serious that it was likely that a prescribed officer would consider dismissal of the Applicant from the Queensland Police Service.

20. On 14 December 2015, I determined that sufficient cause existed to suspend the Applicant without pay pending the resolution of the investigations, criminal proceedings and any resultant disciplinary process.  On this date I issued a suspension notice to the Applicant, and invited him to show cause within 14 days why I should not proceed to suspend him without salary and allowances.  … 

21. On 8 January 2016, the Applicant’s legal representative furnished me with submissions on the Applicant’s behalf in response to the show cause notice.  … 

22. Upon perusal of the submissions of the Applicant, I was not satisfied that they adequately addressed any detriment or financial impact likely to be suffered by the Applicant should I uphold my preliminary view that the Applicant was to be suspended without salary and allowances pending the resolution of the outstanding disciplinary and criminal proceedings.  On 13 January 2016 I forwarded correspondence to the Applicant’s legal representative outlining my concerns in this regard and requested further submissions.  … 

23. On 15 January 2016 further submissions, enclosing financial records pertaining to the Applicant, were furnished to me by the Applicant’s legal representative.  A further minor issue was also clarified by email with the Applicant’s legal representative.  … 

24. After careful consideration of all of the relevant factors outlined above, including the submissions furnished by the Applicant regarding the allegations and the financial impact of any decision to suspend him without salary and allowances, I confirmed my preliminary view that the Applicant should be suspended without salary and allowances pending the resolution of any criminal and/or disciplinary proceedings.”

The statutory scheme

26. Part 6 of the Act contains a statutory scheme for standing down and suspending police officers.  It provides that where it appears to the Commissioner, on reasonable grounds, that an officer is liable to disciplinary action, the Commissioner may:

(a)stand down the officer and direct the officer to perform such duties as the Commissioner thinks fit;

(b)suspend an officer from duty.

27. An officer who is stood down is relieved of the powers and duties of a police officer but may continue to work for the Queensland Police Service as a civilian performing such duties as directed by the Commissioner.  Part 6 of the Act provides that an officer who is stood down remains entitled to be paid salary and allowances. 
28. An officer who is suspended is relieved of the powers and duties of a member of the Queensland Police Service and may also not work otherwise for the Service, including as a civilian.  Section 6.3 of the Act contains the relevant provisions in respect of salary entitlement if an officer is suspended from duty.  It provides:

“(1)An officer suspended from duty under section 6.1 is entitled to be paid salary and allowances at the rate at which the officer would have received salary and allowances had the suspension not occurred, unless the commissioner otherwise determines in a particular case.

(1A)Except that an officer suspended under section 6.1(1)(c) is to be entitled to the salary and allowances to which that officer was previously entitled.

(2)An officer suspended from duty who is not entitled to be paid salary during the suspension—

(a)may receive and retain salary, wages, fees or other remuneration from any lawful source during the suspension, unless the commissioner otherwise determines in a particular case; and

(b)if the officer resumes duty as an officer on the revocation of the suspension—is entitled to receive a sum equivalent to the amount of salary and allowances the officer would have received had the suspension not occurred, reduced by a sum equivalent to the amount of salary, wages, fees and other remuneration to which the officer became entitled from any other source during the suspension, unless the commissioner otherwise determines in a particular case.

(3)An officer suspended from duty without salary who enters into employment whereby the officer will become entitled to salary, wages, fees or other remuneration is to inform the commissioner immediately of the particulars of the employment.

(4)An officer suspended from duty who during the suspension becomes entitled to salary, wages, fees or other remuneration from a source incompatible with assessment of the officer as a fit and proper person to be an officer and who fails to satisfy the commissioner that there are reasonable grounds for not dismissing the officer, may be dismissed from the service.”

Applicant’s submissions

29. The applicant submits that a consideration of the subject matter, scope and purpose of the statutory scheme supports a conclusion that it affords a range of graduated possible actions against members of the Queensland Police Service who are the subject of allegations which have not been finally investigated and in respect of which the particular officer has not yet had an opportunity to respond to those allegations.  The lowest level, standing down, ensures the officer cannot exercise the powers of a police officer whilst subject to the unresolved allegations, but can continue performing civilian duties in the Queensland Police Service.  The next level, suspension with pay, is applicable where the allegations render it inappropriate that the officer perform any duties at all in the Queensland Police Service. 
30. The applicant submits the highest level of action, suspension without pay, is to apply only where the circumstances are such that suspending an officer with pay pending resolution of the allegations is insufficient for some identified reason.  Whilst the Act contains no express limitations on the exercise of that discretion, it is not an unfettered discretion.  It must not be exercised in a manner that is arbitrary, fanciful or contrary to reason.  Where, as here, the objects of the statutory scheme are appropriately satisfied by standing down an officer or suspending that officer, a decision to suspend the officer without pay is unnecessarily oppressive or punitive and therefore unlawful.  Such a decision is a decision no reasonable person could reasonably reach, having regard to the circumstances and the statutory scheme.
31. The applicant submits the decision to suspend him had no apparent logical reason.  There was no direct conflict between his functions as a police officer and the unresolved allegations against him in respect of his former partner as he was not performing duties as a police officer.  He already could not exercise the powers of a police officer and was confined to civilian duties.  Further, even if there was a logical reason for his suspension, there is no logical reason for that suspension to be without salary and allowances.  Such a step was not necessary to protect the interests of the public or of the Queensland Police Service.  It results in irreparable harm to the applicant.  There are other less drastic alternatives open to the respondents.
32. In response to the respondents’ submission that the application ought to be dismissed because the applicant has not pursued merits review before the Commissioner of Reviews, the applicant submits he pursued the present application because he needed to obtain interim relief to stay the decision withholding his salary and allowances.  That interim relief was only available in this Court. 

The respondents’ submissions

33. The respondents submit the application ought to be dismissed as the applicant’s complaint that the second respondent acted unreasonably can properly be raised and argued on a review to the Commissioner of Reviews, a right the applicant has previously been advised of but declined to exercise.  As that right exists, the Court must dismiss the application pursuant to s 13 of the JR Act if it is satisfied, having regard to the interests of justice, that it should do so.  The Court should be so satisfied as the Commissioner of Reviews is the body designated by Parliament to consider complaints about decisions made in such circumstances.  A judicial review should not be seen as a substitute for that process.
34. The respondents submit that if the application is to be considered by this Court, the material does not support a conclusion the decisions reached by the second defendant were so unreasonable that no reasonable person could have reached that decision.  Legal unreasonableness is not an avenue for a court to substitute its own view of the correct or preferable decision to that of an administrative decision-maker.  Legal unreasonableness specifically recognises that decision-makers may reach different views and that this alone will not be sufficient to establish legal unreasonableness.  It is a high threshold.
35. The decisions must be viewed in the context of an acceptance that public interest in the administration and management of the Queensland Police Service, and in the maintenance of public confidence in its officers, are relevant factors in the exercise of the powers under Part 6 of the Act.  Those powers are to be exercised in circumstances where it is accepted there will have been no prior determination of any disciplinary charges.  In that context, there were logical reasons for the decisions to suspend the applicant.  The applicant, whilst stood down for serious allegations whilst engaged in a police pursuit, had consented to a domestic violence protection order being issued against him and allegedly breached that order while on duty and in front of members of the public.  Those circumstances supported the second respondent’s conclusion that the collective nature of the applicant’s alleged conduct was sufficiently serious that it was likely consideration would be given to his dismissal from the Queensland Police Service.
36. Similarly, there was a logical basis for the decision to suspend the applicant without salary and allowances.  The applicant’s conduct was properly characterised as serious and escalating in nature.  Since he had been stood down he was alleged to have engaged in conduct resulting in the making of a domestic violence protection order (albeit by consent and without admissions) and being charged with breaching that domestic violence protection order.  Such allegations, if proven, were incompatible with his duties and responsibilities as a police officer to uphold the law.  As the alleged breach occurred whilst on duty and in front of members of the public, there was an incompatibility between his duties as a police officer and the public interest in maintaining community confidence in the Queensland Police Service and its members. 
37. In reaching the decision that the applicant be suspended without salary and allowance the second respondent considered the harm that would be suffered by the applicant from that decision.  The second respondent concluded that notwithstanding that harm, suspension without salary and allowances was appropriate.  That conclusion was neither oppressive nor punitive notwithstanding the harsh consequences.  Those harsh consequences were outweighed by the serious nature of the alleged conduct, the apparent ongoing failure to adhere to measures designed to address the applicant’s conduct, and the need to protect the public interest.

Legal principles

38. In determining legal unreasonableness, a court is to evaluate the decision by reference to the scope and purpose of the relevant statute and its real object.^[1]  Guidance may be derived from the principles applicable to an appellate review of a judicial discretion.  If the result is, upon the facts, unreasonable or plainly unjust, an inference of unreasonableness may properly be drawn from those facts and from the matters falling for consideration in the exercise of the statutory power.  Such an inference may be drawn even where there is provision of reasons.  Legal unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.^[2] 
39. Where a decision-maker’s reasons provide an evident and intelligible justification for the decision, legal unreasonableness is unlikely to be established by an applicant.^[3]  However, if the decision maker may be regarded “by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision maker has been unreasonable in a legal sense”.^[4] 
40. Legal unreasonableness does not involve a court reviewing the merits of the decision or substituting its own view as to how the discretion should be exercised by a decision-maker.^[5]  The relevant principle was enunciated by Allsop CJ in Minister for Immigration and Border Protection v Stretton:^[6]

“This concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulae …  The plurality’s discussion of unreasonableness in Li should be read as a whole – as a discussion of the sources and lineage of the concept, of the limits of the concept of reasonableness given the supervisory role of the courts, of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits, of the various ways the concept has been described, of the relationship between unreasonableness derived from a specific error and unreasonableness from a logical or rational reasoning, of the place of proportionality or disproportion in the evaluation, of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion.” (citations omitted)

Discussion

Jurisdiction

41. The decisions the subject of this application are decisions that could properly be dealt with by the Commissioner of Reviews.  However, there is substance in the applicant’s contention that the application for statutory review was appropriately brought by him.  The applicant was seeking interim relief, specifically that the decision to suspend him without salary and allowances be stayed pending determination of the application.  The Commissioner of Reviews could not have provided that interim relief to the applicant.  It was reasonable for the applicant to seek such relief in this Court.  Having commenced proceedings in this Court to obtain that relief, it was also appropriate that the applicant have the review of the decisions finally determined by this Court.  I am satisfied that notwithstanding the availability of another review mechanism, it is in the interests of justice that the application for statutory review be determined by this Court.

Unreasonableness

42. Part 6 of the Act provides the first respondent (and his delegate) with broad powers for dealing with police officers subject to unresolved disciplinary action.  Those broad powers range from being stood down to being suspended with or without salary and allowances.  Whilst the structure of Part 6 is that any suspension is to be with salary and allowances, unless the Commissioner orders otherwise, the existence of a power to suspend without salary and allowances is consistent with the broad discretion provided to the first respondent. 
43. In the context of a statutory scheme dealing with members of the Queensland Police Service subject to unresolved disciplinary actions, including alleged criminal offences, the factors identified by the second respondent as relevant to the exercise of the discretion are relevant and appropriate.  It is for the second respondent, as the decision-maker, to weigh up the competing factors.  What weight is to be given to one factor over another is a matter for the second respondent, provided the discretion is not undertaken in a manner which is arbitrary or illogical.  The fact that minds may differ as to what is the appropriate decision does not render a particular decision arbitrary or illogical.  Legal unreasonableness requires much more. 
44. At the time the second respondent made the decision to suspend the applicant, the applicant was already stood down following serious allegations that he had disobeyed directions, driven recklessly and discharged a firearm during a police pursuit.  The second respondent made the decision to suspend the application following further serious allegations about the applicant’s conduct.  Those allegations were that the applicant had engaged in conduct outside a school whilst on duty (albeit in plain clothes) in front of members of the public, which constituted a contravention of a domestic violence protection order, made with his consent and without admissions, following allegations of domestic violence against his former partner. 
45. The further allegations amply supported the second respondent’s conclusion that the applicant’s behaviour was alleged to be “serious and escalating”.  That expression is not to be read as only a reference to the type of conduct which resulted in the applicant being stood down.  It is to be read as a reference to his alleged conduct whilst stood down, which conduct is said to have resulted, firstly, in the making by consent of a domestic violence protection order and, secondly, in an alleged breach of that domestic violence order by conduct on a public street outside his children’s school whilst on duty. 
46. A consideration of those circumstances, in the context of the scope and nature of the Act, supports a conclusion that the decision to suspend the applicant was a decision well within the discretion of the second respondent as the decision-maker.  There was a direct conflict between the alleged conduct and the applicant’s functions as a police officer.  One of a police officer’s functions is to uphold the law.  The fact that the applicant was at this time stood down as a police officer did not detract from that direct conflict. 
47. There is nothing in the decision of the second respondent on 14 December 2015 to suspend the applicant which lacks an evident or intelligible justification.  There is no basis to conclude such a decision should be set aside for legal unreasonableness. 
48. The applicant submits that even if the circumstances provided a basis to suspend, there was no basis to suspend without salary and allowances.  That submission misunderstands the process undertaken by the second respondent.  The second respondent received information regarding the applicant’s alleged breach of a domestic violence order.  That caused him to consider whether further disciplinary action was required, beyond standing the applicant down.  He formed a preliminary view there was sufficient cause to suspend the applicant without salary and allowances.  Whilst a notice was initially issued, suspending the applicant with salary and allowances, that notice was not indicative of the second respondent’s final decision.  It was done to provide the applicant with an opportunity to show cause as to why his suspension ought to be with salary and allowances.  The second respondent was unpersuaded by those submissions and affirmed his preliminary view. 
49. The decision to suspend without salary and allowances was a decision contemplated by the Act.  There is an express discretion to suspend without salary and allowances.  In determining whether to exercise the discretion to suspend the applicant without salary and allowances, matters such as the serious and escalating nature of the applicant’s alleged conduct and any inconsistency with the public interest, including the public interest in there being confidence in the operation of the Queensland Police Service and its members, were relevant factors for the second respondent to consider.  It was also relevant for the second respondent to consider the hardship to the applicant from any such decision.
50. A consideration of the notice advising the applicant of the decision to suspend without salary and allowances reveals the second respondent gave consideration to each of those matters.  Ultimately, the second respondent concluded the public interest outweighed any question of hardship such that it was appropriate to suspend the applicant without salary and allowances.  Whilst other minds may differ, nothing in the material supports a conclusion that that decision lacked an evident and intelligible justification.
51. The applicant was alleged to have engaged in serious and escalating conduct against the law whilst on duty and in front of members of the public outside a school.  He is alleged to have engaged in such conduct despite having consented to a domestic violence protection order less than two months previously.  He is alleged to have engaged in such conduct whilst stood down for an allegedly serious disciplinary breach. 
52. The second respondent had before him evidence that the incident, whilst not involving actual physical harm or damage to property, was of a sufficient magnitude that a concerned member of the school staff took steps to diffuse what was an obviously deteriorating situation.  That person observed an aggressive stance being adopted by the applicant towards his ex-partner’s new partner and loud verbal exchanges.  Another member of the school staff expressly asked the applicant to leave the area. 
53. Having regard to the serious and public nature of the alleged behaviour of the applicant, it was open to the second respondent to conclude that the applicant’s alleged conduct, if proven, was incompatible with his official duties and responsibilities as a police officer.  Such incompatibility, in the context of a consideration of the public interest in maintaining public confidence in the Queensland Police Service and its members, was sufficient to support a conclusion that notwithstanding extreme hardship to the applicant and members of his family, maintenance of public confidence required that the applicant not only be suspended but be suspended without salary and allowances. 
54. Those salaries and allowances are paid from taxpayers’ money.  The conduct, if established, would be grounds to consider dismissal of the applicant from the Queensland Police Service.  A reasonable conclusion in such circumstances is that the continued receipt of salary and allowances by the applicant is inconsistent with maintaining the requisite public confidence in the Queensland Police Service and its members. 
55. The second respondent specifically had regard to the hardship to be occasioned to the applicant and his family by such a decision.  It cannot be said that the applicant failed to give appropriate weight to that factor, or gave disproportionate weight to the need for public confidence. 
56. It was open to a reasonable decision-maker, having regard to the nature, scope and purpose of the legislative scheme and all of the circumstances, to conclude that public confidence in the administration of the Queensland Police Service and in the members of that service justified a decision to suspend the applicant without salary and allowances. 
57. The second respondent’s decision is not a decision where legal unreasonableness can properly be drawn from the facts and the matters falling for consideration in the exercise of the statutory power. 

Conclusions

58. The applicant has not established that either decision of the second respondent was so unreasonable that no reasonable person exercising the power could reach that decision.
59. The application for review is dismissed.