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O'Brien v Commissioner of the Queensland Police[2021] QSC 349

O'Brien v Commissioner of the Queensland Police[2021] QSC 349

SUPREME COURT OF QUEENSLAND

CITATION:

O'Brien v Commissioner of the Queensland Police [2021] QSC 349

PARTIES:

BRETT MICHAEL O'BRIEN

(applicant)

v

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

BS 6737 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2021

JUDGE:

Kelly J

ORDER:

  1. 1.The decision of Assistant Commissioner Charysse Pond as contained in the letter from Assistant Commissioner Charysse Pond to the applicant dated 3 June 2021 is set aside;
  2. 2.The applicant’s application to join the Queensland Police Service as a police recruit is referred to the Commissioner of Police for further consideration and decision according to law.

CATCHWORDS:

ADMINISTRATIVE LAW  –  JUDICIAL REVIEW  –  GROUNDS OF REVIEW  –  PROCEDURAL FAIRNESS  –  HEARING  –  NATURE OF HEARING  –  OPPORTUNITY TO PRESENT CASE  –  where the applicant applied to join the Queensland Police Service  –  where the applicant was previously a police officer employed with the Gold Coast Water Police  –  where the applicant was previously investigated for two matters relating to alleged misconduct  –  where internal investigations of the Queensland Police Service recommended the applicant be disciplined by way of disciplinary hearing for both matters  –   where the applicant resigned due to medical reasons before the disciplinary hearing was constituted  –  where the respondent refused the applicant’s application to re-join the Queensland Police Service –  whether the respondent’s reasons for decision provided the applicant with ample notice of adverse propositions or material the respondent took into account in making their decision –  whether there was a substantial denial of natural justice in the circumstances.

ADMINISTRATIVE LAW  –  JUDICIAL REVIEW  –  GROUNDS OF REVIEW  –  FAILURE TO OBSERVE STATUTORY PROCEDURE  –  where 5AA.12(1) of the Police Service Administration Act required the respondent to disclose information to the applicant adverse to the applicant’s prospects of their application being approved  –  whether the respondent complied with 5AA.12(1).

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited

Gurani v Minister for Immigration and Border Protection (2014) 315 ALR 130, cited

Kioa v West (1985) 159 CLR 550, cited

Minister for Immigration v SZGUR (2011) 241 CLR 594, cited

Re Minister for Immigration and Multicultural Affairs; Ex parte ‘A’ (2001) 185 ALR 489, cited

Police Service Administration Act 1990 (Qld), s 5AA.12

Police Service (Discipline) Regulations 1990 (Qld)

COUNSEL:

JL Treanor (sol) for the applicant

M Nicolson for the respondent

SOLICITORS:

Hannay Lawyers for the applicant

QPS Legal Unit for the respondent

Introduction

  1. [1]
    On 10 September 2016, the applicant applied to join the Queensland Police Service (“the QPS”) as a police recruit (“the application”). The applicant had previously been a member of the QPS during the period between in or around 1991 and 18 January 2008, when he had retired on medical grounds.[1]
  2. [2]
    The decision to appoint a person as a police recruit is made under the Police Service Administration Act 1990 (Qld) (“the PSA Act”). Such a decision is a matter within the prescribed responsibility of the office of the commissioner of police.[2]  The commissioner is entitled to delegate powers to discharge the prescribed responsibility.[3] Section 5.2(2) of the PSA Act relevantly provides that the decision to appoint a person as a police recruit “must be made by fair and equitable procedures that …  include inviting applications and selection on the basis of the merit of applicants …”. 
  3. [3]
    Section 5AA.12(1) of the PSA Act relevantly provides:

“If, because of information relied on by the commissioner…, the commissioner considers a person … may not be suitable to be … engaged by the service, the commissioner must, before deciding the person is not suitable-

  1. (a)
    disclose the information to the person; and
  2. (b)
    allow the person a reasonable opportunity to make representations to the commissioner about the information”.   
  1. [4]
    Pursuant to s 5AA.12(2) of the PSA Act, the commissioner “must give reasons why the commissioner considers the person may not be suitable to be engaged by the service” unless the commissioner considers the disclosure of the information would have identified consequences, none of which arose in the present case. Following the giving of those reasons and considering any representations by the person, if the commissioner decides that the person is not suitable to be engaged by the QPS, the Commissioner must give the person a written notice to that effect. [4]
  2. [5]
    The application was twice rejected by delegated decision-makers and, each time, the relevant decision was set aside and remitted to the Commissioner for redetermination.
  3. [6]
    The most recent occasion on which the application was so remitted was 30 April 2021. On that date, this Court made orders by consent which materially included the following orders:

“ …

  1. The new decision maker will be the rank of Assistant Commissioner of [the QPS].
  1. The decision maker will form a preliminary view of the information within 14 days.
  1. If, on a preliminary view of the information before the decision maker, the decision maker considers that the applicant may not be suitable to be engaged by the service the decision maker will disclose the information to the applicant and the applicant will have 14 days to make representations to the decision maker about the information.
  1. Upon receipt of the representations from the applicant, or the expiry of the 14 day period, a final decision will be made within 14 days”
  1. [7]
    By a letter dated 14 May 2021 (“the 14 May 2021 letter”),[5] Assistant Commissioner Charysse Pond APM (“the decision-maker”), materially advised the applicant that she had assumed responsibility to be the delegate decision-maker in respect of the application, had considered certain information relevant to the application (“the information before the decision-maker”) and had formed the preliminary view that the applicant may not be suitable to be engaged by the QPS. The 14 May 2021 letter provided the information before the decision-maker to the applicant and invited him to make representations about the information within 14 days. 
  2. [8]
    The applicant responded to the 14 May 2021 letter, by a letter dated 18 May 2021 (“the applicant’s 18 May 2021 letter”).[6]
  3. [9]
    By a letter to the applicant dated 3 June 2021 (“the decision”),[7] the decision-maker rejected the application on the basis that the applicant did not meet the standard of merit required to be engaged as a police recruit.
  4. [10]
    On 14 June 2021, the applicant filed an application for statutory orders of review in respect of the decision pursuant to s 20 of the Judicial Review Act 1991 (Qld) (“the JR Act). The grounds of the application for statutory orders of review are that the decision was made in breach of the rules of natural justice,[8] that procedures that were required by law to be observed in relation to the making of the decision were not observed[9] and that there was no evidence or other material to justify the making of the decision.[10]

Factual background to the decision

  1. [11]
    During his period of service as a member of the QPS, two events had occurred, involving or concerning the applicant, which had led to internal investigations and ultimate recommendations for disciplinary charges to be laid against the applicant. The applicant retired from the QPS before the disciplinary hearing in respect of the disciplinary charges had commenced. A disciplinary hearing was not convened, and the disciplinary charges were never resolved. The information before the decision-maker included the documentary record of the internal investigations and the recommendations in respect of the disciplinary charges.
  2. [12]
    The first event had involved an overpayment of wages into the applicant’s bank account for the pay period 1 November to 14 November 2003 (“the overpayment”). The second matter had involved a marine incident which occurred on 18 April 2004 (“the marine incident”).
  3. [13]
    At the times when the overpayment and the marine incident occurred, the PSA Act and the Police Service (Discipline) Regulations 1990 (Qld) (“the Discipline Regulations”) contemplated that disciplinary action might be taken against a police officer by “a prescribed officer”. The Discipline Regulations had the object of providing for “a system of guiding, correcting, chastising and disciplining subordinate officers”[11] and ensuring that “appropriate standards within [the QPS] are maintained”[12]. The Discipline Regulations contemplated that a range of disciplinary sanctions might be imposed by a prescribed offer ranging from “cautioning or reprimand” to “dismissal from the [QPS]”.[13]  However, the Discipline Regulations provided that only where the prescribed officer was the commissioner or a deputy commissioner, could the sanction of dismissal from the QPS be imposed.[14] The Discipline Regulations expressly provided that “in no case” was an assistant commissioner, commissioned officer or non-commissioned officer, acting as a prescribed officer for the purpose of disciplinary action, entitled to impose the sanction of dismissal from the QPS.[15]

The overpayment

  1. [14]
    The overpayment was in the amount of $7,365.16.[16] At the time of the overpayment, the applicant was a Sergeant attached to the Gold Coast District Water Police.[17] An Inspector attached to the Ethical Standards Command of the QPS became aware that the applicant had received the overpayment and apparently believed that the applicant was aware of, and did not intend to repay, the overpayment.[18] The Inspector caused a complaint to be made about the applicant. The complaint was the subject of an investigation by Detective Senior Sergeant Millard which involved a number of officers being interviewed, including the applicant.
  2. [15]
    Following his investigation, Detective Senior Sergeant Millard sent a letter dated 24 May 2005 to the Inspector of the Complaints Section for the South Eastern Region.[19] This letter formed part of the information before the decision-maker. It materially read:

“8. Matters for Consideration

  8.1 

  8.2 There is no evidence at this time of the subject officer stating to any person that he had no intention of repaying the overpayment.

  8.3 There is evidence from the subject officer that he was aware of the overpayment at the time of receiving his pay slip in 2003. After not being contacted by the QPS following his alleged advising of them by telephone, the overpayment has been forgotten by the subject officer until he became aware of this investigation.

  8.4 No attempt was made by the QPS to notify the subject officer or make a demand for repayment until 27 October, 2005. Further to this the overpayment was a result of the QPS payroll section not the subject officer.

  8.5 Following contact being made with the subject officer, arrangements were made to repay the outstanding amount at $100 per day which has occurred since 27 October, 2005.

  8.6 I would submit there is no evidence to substantiate any criminal offence being committed. There were no fraudulent claims made by the subject officer.

  8.7 ...  In this case I would submit the subject officer should have continued to follow up with the QPS.

  9. Recommendations

  9.1 The subject officer has not shown any intention to not repay the money however; I would submit that ethically he should have made further inquiries with the QPS at the time.

  9.2 I would recommend that due to the necessary arrangements now being in place to retrieve the overpayment and that there was no intent by the subject officer to defraud the QPS that this matter could be resolved by Managerial Guidance.”

  1. [16]
    On 4 April 2006, Superintendent Pointing, the District Officer of the Gold Coast District, provided a memorandum to the Assistant Commissioner of the South Eastern Region. This memorandum formed part of the information before the decision-maker.[20] It materially read:

“1. ….

  2. Investigations have been conducted by Detective Senior Sergeant Graeme Millard (3584) and he has provided a comprehensive report on the matter. Investigations indicate that Sergeant O'Brien received an overpayment for the fortnight ending 14 November 2003 due to a discrepancy regarding higher duties performed by Sergeant O'Brien. The subject member indicated that different overpayments had occurred on approximately 6 occasions while had had performed duty at the Gold Coast Water Police with all previous amounts repaid.

  3. The subject member was aware of the subject overpayment when he viewed his pay advice at the conclusion of the fortnight ending 14 November 2003. Sergeant O'Brien indicated that after about a month and not hearing anything from the Service about the overpayment he contacted an unknown representative of Human Resources in Brisbane or on the Gold Coast and asked for the matter to be examined. The subject member took no further action to pursue this matter.

  4. The subject officer indicated that his partner suffered a miscarriage in December 2003 and he forgot about the matter until contacted by the investigating officer in May/June 2005….

  5. The investigation concluded no criminal offence has been committed by Sergeant O'Brien. I concur with this view ...

  6. It is apparent that the subject officer was duty bound to continue in his efforts to ensure suitable notification of the payment to ensure appropriate action was taken for the repayment of the money overpaid. I note that Section 9.2.4.2 (Allowances – Police Officers) of the Human Resource Management Manual relevantly states: Police officers are individually responsible for checking their fortnightly pay advice and… advising their officer in charge of receipt of an allowance to which they are not entitled… and advising their officer in charge of an overpayment which has occurred due to receipt of a payment to which they are not entitled.

  7. I consequently recommend that disciplinary action for misconduct be commenced against Sergeant O'Brien. The recommended wording of the charge being:

That between November 2003 and June 2005 at the Gold Coast your conduct was improper in that you:

  1. (a)
    Failed to make all reasonable efforts to provide advice to your officer in charge of an overpayment of $7365.16 for the fortnight ending 14 November 2003 which has occurred due to receipt of an overpayment to which you were not entitled, such advice being made with a view to commencement of recovery action for the said overpaid allowances.

Section 9.2.4.2 (Allowances – Police Officers) of the Human Resource Management Manual and sections 9(1)(b) and 9(1)(c) of the Police Service (Discipline) Regulations 1990.

  8. Given the large sum of money I consider this matter to be of a serious nature and recommend that it progress to a disciplinary hearing before a prescribed officer of the rank of Assistant Commissioner.”

  1. [17]
    On 18 April 2006, the Acting Assistant Commissioner of the South Eastern Region (Commissioner Davey) provided a memorandum to the Assistant Commissioner, Ethical Standards Command (Commissioner Stewart).  This memorandum formed part of the information before the decision-maker.[21] It materially read:

“… Detective Senior Sergeant Millard’s report is comprehensive and inclusive of all aspects of the complaint.

Detective Senior Sergeant MILLARD has made extensive and exhaustive inquiries in relation to this matter. Police officers were interviewed who indicated they had heard the subject officer talking about an overpayment, however they were unsure if this matter was the one he was referring to. The subject officer told Detective Senior Sergeant MILLARD the first he actually became aware of this overpayment was around May/June 2005.

The subject officer has indicated he had often been the subject of overpayments from [the QPS] Finance Section. This is a significant point, as the matter of overpayments to police officers is well known and has been raised by the Queensland Police Union (QPU) with the QPS on many occasions. …

The subject officer, when interviewed, indicated the amount of money involved in the overpayment, although seemingly large on first appreciation, was deposited into an overdraft business account he shared with his (then) partner that had a balance of (negative) $400,000.00 which varied when pays for each of them and rental property income was deposited on a regular basis. The subject officer indicated that this amount of money at first glance did not raise a suspicion that there had been an overpayment.

The subject officer has readily co-operated with officers from the QPS Finance Section, Partner One and he has entered into an agreement whereby the monies are being repaid on a fortnightly basis. …

Detective Senior Sergeant MILLARD has recommended the subject officer receive managerial guidance in relation to this matter.

Superintendent B POINTING … has provided an overview report, however the Superintendent has recommended the subject officer face a disciplinary hearing at Assistant Commissioner level for the inappropriate behaviour identified. The Superintendent has viewed this matter more seriously and cites a section of the Human Resource Manual that indicates police officers are individually responsible for checking their fortnightly pay advice for correctness and then causing the relevant changes to be made on a timely basis should there be any discrepancy detected.

I have carefully considered the report of Detective Senior Sergeant MILLARD, his recommendations and also the overview report of Superintendent POINTING and his recommendations therein.

I do not support the view of Superintendent POINTING that this matter warrants the serious further attention of a disciplinary hearing at Assistant Commissioner level. My rationale for this decision includes the following.

  • There is no evidence that the subject officer actually did know of the specific overpayment at the time;
  • There is no evidence the subject officer used the additional monies for any extra purpose, for example a holiday or purchase and there is no evidence to suggest any large withdrawal occurred from his banking account after this overpayment;
  • There is ample evidence to support the version of the subject officer indicating the overpayment was paid into a banking account that reflected a large overdraft figure and that this amount of money would not necessarily have such a profound meaning when viewed with other funds being paid in and paid out over time;
  • There is no evidence to suggest the subject officer at any time stated he did not intend paying the monies, subject of the overpayment, back to the QPS;
  • There is ample evidence that the subject officer had received overpayments in the past;
  • … ;
  • …. ;
  • The subject officer has readily cooperated with the QPS Finance Section Partner One to have the monies repaid in accordance with the provisions of Certified Agreement EB4B since the overpayment has been detected.

However, I support the view the subject officer did have responsibility to check his pay advice on a timely basis to ensure proper payments were being received by him.

I recommend the subject officer receive Managerial Guidance at District Officer (Superintendent) level to reinforce the provisions of the Human Resource Manual relating to the requirement of police officers to make appropriate checks of their pay advice to ensure proper payments are being received and to make timely arrangements with the Finance Section Partner One for the repayment of any overpayments in accordance with QPS policy and procedures.”

  1. [18]
    On 12 May 2006, Assistant Commissioner Stewart provided a responsive memorandum to Assistant Commissioner Davey. This memorandum (“the 12 May 2006 Ethical Standards Command Memorandum”) formed part of the information before the decision-maker.[22] It materially read:

“1. ….

  2. … The investigation report of Det Snr Sgt Millard, the report of Supt B Pointing and your recommendations have been considered.

  3. This Command does not concur with your conclusion there is no evidence Sgt O'Brien actually knew of the specific overpayment at the time. The investigation established Sgt O'Brien was paid a single lump sum overpayment in the pay period 1 November 2003 to 14 November 2003 which equated to the amount of $7365.00.

  4. The investigation established that at least three officers at the Gold Coast Water Police became aware of the overpayment due to comments by the subject member. In paragraph 6.8 of Det Snr Sgt Millard’s report he states the subject member became aware of the overpayment when he opened his payslip around the end of the fortnight.

  5. ….

  6. This Command considers there is sufficient evidence to prove Sgt O'Brien was aware at the time of the payment of the overpayment. Considering the significant size of this overpayment it would be reasonable to expect that a person receiving such a payment would take appropriate action to immediately rectify this overpayment.

  7. The assertion of Sgt O'Brien that due to the size of his debts and his combined income the overpayment was easily forgotten is unreasonable. It is this Command’s contention that it is reasonable to expect that an overpayment of approximately 1/10th if the officer’s gross yearly salary would be something that would remain in his consciousness for an extended period of time. Had he in fact been underpaid by such a substantial amount there is little doubt he would have taken immediate steps to ensure his pay was rectified.

  8. Considering the overpayment was not detected by Partner One no by any QPS audit system, it is reasonable to conclude that had the complainant not brought this matter to the attention of the Service, the subject member would have never repaid the amount…..

  9. The willingness of the subject member to repay monies is moot. Regardless of his willingness, recovery action would have been undertaken and he had little alternative but to undertake this course of action.

10. This Command does not consider that under the circumstances Sgt O'Brien has not exhibited the ethical behaviour expected of an officer of his experience. It is the view of this Command that the provision of managerial guidance would not be appropriate under the circumstances and would erode the confidence of the public. It is also the view of this Command that such managerial action would not be supported by the Crime and Misconduct Commission during any future audit.

11. This Command concurs with Superintendent Pointing that disciplinary action for misconduct be commenced against Sgt O'Brien for failing to comply with section 9.2.4.2 (Allowances – Police Officers) of the Human Resource Management Manual. It is recommended the prescribed officer be at the level of a Commissioned Officer.

12. Section 18.3.3 HRMM provides for a copy of the Direction to Attend a Disciplinary Hearing – Misconduct, including the date of the hearing to be e-mailed by the Prescribed Officer to ESC Discipline, where the format of the Notice and the appropriateness of the proposed charges will be overviewed. The Prescribed Officer will be advised of any suggested changes promptly by return e-mail.

13. Your advice in due course, as to the outcome of the disciplinary hearings together with appropriate notices, would be appreciated.”

The marine incident

  1. [19]
    The marine incident arose out of the following circumstances.[23] The vessel A P Anderson was a semi-rigid inflatable boat - RIB of more than six meters in length. Senior Constable Foessel had been previously directed by his Officer-in-Charge, Senior Sergeant Day, that he was not to master the A P Anderson solo. At about 12.15 pm on Thursday 18 April 2004 there was a significant marine incident involving the A P Anderson which then contained Senior Constable Foessel as its only master. On the day in question, the applicant had been rostered on with Senior Constable Foessel however he had taken three days’ sick leave. The applicant was alleged to have given Senior Constable Foessel permission to master the A P Anderson solo despite being aware that Senior Constable Foessel had been given a direction to the contrary by the Officer-in-Charge. It was alleged that as a direct result of being advised of the marine incident by Senior Constable Foessel, the applicant had returned to work as the investigating officer while still on sick leave. It was alleged that the marine incident had resulted from operator error on the part of Senior Constable Foessel when he crossed the wake of a larger vessel and was subsequently thrown overboard. The safety lanyard provided to automatically cut the motors under such circumstances was not utilised and, as a direct result, the vessel had continued on crewless and at speed, narrowly missing another vessel before coming to ground on nearby Coomera Island.
  2. [20]
    On 26 April 2006, Assistant Commissioner Davey provided a memorandum to Assistant Commissioner Stewart. This memorandum formed part of the information before the decision-maker.[24] It materially read:

“…

This investigation addresses two allegations relating to Sergeant O'BRIEN namely that:-

  • On 18 April 2004 he countermanded a direction of Senior Sergeant DAY a superior officer and Officer in Charge of the Gold Coast Water Police, that Senior Constable FOESSEL was not to master the ‘A P ANDERSON’ solo until further advised by him without authority to do so; and
  • On 24 August 2004 he was untruthful to Sergeant Garth CRANK when interviewed by him when he stated that he was not aware that Senior Sergeant DAY had directed that Senior Constable FOESSEL was not to master the ‘A P ANDERSON’ solo.

Inspector O HORTZ of the South Eastern Region has conducted further investigations in relation to this complaint. Inspector HORTZ’s report is comprehensive and inclusive of all aspects of the complaint.

Inspector O HORTZ has interviewed a number of staff from the Gold Coast Water Police and also interviewed Senior Constable K FOESSEL the other subject officers of this original complaint. All officers interviewed have provided evidence to support the fact that a verbal direction was issued by the Officer in Charge of the Gold Coast Water Police, Senior Sergeant B DAY to the effect that Senior Constable FOESSEL was not to master the vessel ‘A P ANDERSON’ on a solo basis at any time.

From the investigation conducted it appears there is ample evidence to suggest Sergeant O'BRIEN was in fact aware of that, the aforementioned direction from Senior Sergeant DAY was in existence and that he disobeyed this direction.

Inspector HORTZ has further recommended two additional charges should be preferred against Sergeant O'BRIEN, that of untruthfulness to him (Inspector HORTZ) and that of incompetence/duty failure in the management of the Gold Coast Water Police in that he allowed Senior Constable FOESSEL to master the ‘A P ANDERSON’ on a solo basis when it was well known FOESSEL was not sufficiently proficient in his knowledge or operational expertise to do so.

Inspector P W BAKER, Professional Practice Manager for the South Eastern Region has overviewed this file and supports the recommendations and outcomes of Inspector HORTZ’s report.

Having reviewed all the material I support the recommendations of Inspectors BAKER and HORTZ.

I recommend this matter be referred back to this Region for a Disciplinary Hearing to be convened against Sergeant B O'BRIEN at Assistant Commissioner level.”

  1. [21]
    On 22 May 2006, Assistant Commissioner Stewart provided a responsive memorandum to Assistant Commissioner Davey. This memorandum (“the 22 May 2006 Ethical Standards Command Memorandum”) formed part of the information before the decision-maker.[25] It materially read:

“1.….

  2.….

  3.From the evidence of Senior Sergeant Day and Senior Constable Foessel, it can be concluded that Sergeant O'Brien would have known that Senior Sergeant Day had directed that Foessel not master the vessel ‘A P ANDERSON’ solo. The existence of that order appears to be widely known among officers at the Gold Coast Water Police. There is sufficient evidence for Sergeant O'Brien to face disciplinary action for misconduct on 18 April 2004 for giving Senior Constable Foessel permission to master the Bessel ‘A P ANDERSON’ solo in contravention of Day’s direction and for untruthfulness to investigators on 24 August 2004 and 10 March 2006 when he stated he was not aware of Senior Sergeant Day’s direction regarding Foessel.

  4.….

  5. Having regard to the circumstances of the matter including comparative sanctions for the alleged untruthfulness, it is recommended the prescribed officer should be at the level of commissioned officer. It is noted the subject member is to face a disciplinary hearing before a commissioned officer for another matter. It may be appropriate for all matters to be dealt with at the same hearing.

  6. While the wording of disciplinary charges is at the discretion of the prescribed officer, section 18.3.3 of the Human Resource Management Manual (HRMM) provides for a copy of the Direction to Attend a Disciplinary Hearing – Misconduct, including the date of hearing, to be emailed by the prescribed officer to ‘ESC Discipline’ where the format of the Notice and appropriateness of the proposed charges will be overviewed. The prescribed officer will be advised of any suggested changes promptly by return email.

  7. This Command would appreciate your advice in due course as to the outcome of any disciplinary action taken.”

  1. [22]
    On 29 August 2006 Inspector James of the Gold Coast District contacted the applicant in relation to establishing a date for his discipline hearing.[26] The applicant advised Inspector James that he had suffered a serious illness and had just had an operation. He requested that his discipline hearing be stood down until a date to be advised.[27] Ultimately, on 18 January 2008, the applicant retired from the QPS on medical grounds.
  2. [23]
    The following matters were apparent from the information before the decision-maker:
    1. (a)
      In respect of the overpayment, the matter had been investigated by Detective Sergeant Millard and further considered by Superintendent Pointing and Assistant Commissioners Davey and Stewart. Whilst the position was ultimately reached that a disciplinary hearing was warranted, none of the police officers who had investigated or considered the matter, had recommended that the hearing be convened before a prescribed officer with power to impose the sanction of dismissal from the police force. The final recommendation of Assistant Commissioner Stewart had been that the disciplinary hearing be convened before a commissioned officer. A commissioned officer could impose the disciplinary sanctions of a caution or reprimand or a deduction from the officer’s salary or wages of an amount equivalent to a fine of 2 penalty units. A commissioner officer could not, inter alia, impose a sanction imposing a forfeiture or deferment of a salary increment or increase, a reduction in rank or dismissal from the police service.
    2. (b)
      In respect of the marine incident, the matter had been investigated by Inspector Hortz and further considered by Inspector Baker and Assistant Commissioners Davey and Stewart. Whilst the position was ultimately reached that a disciplinary hearing was warranted, none of the police officers who had investigated or considered the matter had recommended that the hearing be convened before a prescribed officer with power to impose the sanction of dismissal from the police force. Again, the final recommendation of Assistant Commissioner Stewart had been that the disciplinary hearing be convened before a commissioned officer. Assistant Commissioner Stewart had also recommended that the overpayment and the marine incident might suitably be dealt with at the one disciplinary hearing;
    3. (c)
      At the time that the applicant had retired from the QPS, the disciplinary hearing had not commenced, and the disciplinary matters remained unresolved;[28]
    4. (d)
      As the disciplinary hearing had not commenced, there had never been any findings made against the applicant in respect of the proposed disciplinary charges. 

The process which led to the decision

  1. [24]
    The 14 May 2021 letter materially read:[29]

“….

Upon considering information relevant to your application, I have formed the preliminary view that you may not be suitable to be engaged by the QPS.

The information outlined in reports of the Assistant Commissioner, Ethical Standards Command (AC ESC) dated 12 May 2006 and 22 May 2006 raise preliminary concerns relating to your integrity, diligence and good conduct.

I understand that these disciplinary matters would not be enlivened were you to rejoin the QPS, however, my preliminary view is that you may not be suitable to be engaged as a police recruit.

Specifically of concern are the recommendations of the AC ESC that you were to proceed to discipline hearing for both matters and that the investigations, at the time, supported those recommendations.

Pursuant to Part 5AA Police Service Administration Act 1990 (PSAA), I am –

(a) disclosing this information to you (enclosed); and

(b) allowing you the opportunity to make representations about this information.

In accordance with the Supreme Court orders of 30 April 2021, you have 14 days from the date of this letter to make representations about this information, if you choose to do so.

Once I have received representations form you, if any, and in accordance with the Supreme Court orders of 30 April 2021, I will make a final decision as to your suitability to be engaged by the QPS, that is:

(a) within 14 days of the date of receipt of any representations you wish to make; or

(b) within 14 days from the date that I am advised that you are not making representations.

I will write to you outlining my decision.”

  1. [25]
    The 14 May 2021 letter was provided to the applicant under cover of an email, sent on 14 May 2021 at 15.41, from a senior legal officer of the QPS, Mr Broadbent.[30] That email materially read:

“As per the orders of the Supreme Court 30 April, please find attached the letter of AC Pond, outlining her preliminary decision as to your recruit application.

Also attached are the documents referred to in the above letter.

Documents CP12-Marine Report Sgt Crank and CP 14-IV Btn Insp Hortz and Sgt O'Brien, will be sent separately, due to their size” 

  1. [26]
    On 14 May 2021 at 18.19, the applicant sent an email to Mr Broadbent which materially read:

“Thank you for your email.

It is unclear what I’m asking to respond to (sic).

Could you please clarity what I’m being asked to respond to.

The reports attached from A/C ESC were requesting a response from A/C SER.

Could you please provide the subsequent reply reports from A/C South Eastern Region”

  1. [27]
    The applicant’s 18 May 2021 letter was sent at a time when the applicant had not yet received a response from Mr Broadbent to his email sent on 14 May 2021 at 18.19.
  2. [28]
    The applicant’s 18 May 2021 letter referred to the 14 May 2021 letter and materially read:[31]

“The letter identified two reports from Assistant Commissioner Stewart requesting advice from Assistant Commissioner South Eastern Region in relation to two outstanding discipline matters. The final line of the report stated, ‘This Command would appreciate your advice in due course as to the outcome of any disciplinary action taken.’

These reports were not an indication of my character and there were no indications of findings. The reports merely appear to be a standard discipline process report providing recommendations and seeking finalisation.

The subsequent reply report from Assistant Commissioner South Eastern Region or the matters relating to these requests were not provided to me.”

  1. [29]
    The applicant’s 18 May 2021 letter also noted that the overpayment and marine incident “were investigated for four years whilst I was a member of the QPS. I have never been given an opportunity to view the evidence, test the evidence or defend myself in any way. I have always maintained the view that I would contest the matters given the opportunity”.
  2. [30]
    On 19 May 2021 at 14.57, Mr Broadbent sent an email to the applicant which materially read:[32]

“I refer to your email… Please be advised that I cannot provide you with legal advice or advise you as to what, if anything, you should further address.

Despite this, I note AC Pond has reviewed the disciplinary matters, subject of the letters of the AC, ESC, dated 12 May 2006 (CP1) and 22 May 2006 (CP7), and related documents. These disciplinary matters and related documents (CP1 to CP15) are relevant information for the purpose of 5AA PSAA.

As outlined in AC Pond’s letter (14 May 21), the information of concern, when forming her preliminary view that you may not be suitable to be engaged as a police recruit, was provided to you (CP1 to CP15).

To ensure procedural fairness you are provided an opportunity to make representations to AC Pond, about this information, (CP1 to CP15) and how this information should be treated or used, or any other representations you wish to make about the assessment of your suitability to be employed by QPS as police recruit.

AC Pond will take your representations and anything further you provide into consideration, prior to making a final decision about your suitability to be engaged as a police recruit.

As per your email… advice from SER to ESC of the closing of your matters, due to your medical retirement, is recorded on pages 3 & 4 of CP5, and bottom of page 8 and top page 9 of CP8.”

  1. [31]
    On Monday 24 May 2021 at 17.53:20, the applicant sent an email to Mr Broadbent which materially read:[33]

“Thank you for your email.

I forwarded my response to Assistant Commissioner Pond on 18/5/2021.”

The decision

  1. [32]
    The decision may be materially set out as follows:[34]

“I refer to your application to join the Queensland Police Service (QPS) as a police recruit.

On 14 May 2021 I wrote to you in accordance with Supreme Court orders of 30 April 2021, advising you that I have assumed responsibility as the delegate decision maker to consider your recruit application.

My letter of 14 May 2021 also advised you that pursuant to Part 5AA Police Service Administration Act 1990 (PSAA), upon considering your recruit application, I had formed the preliminary view that you may not be suitable to be engaged as a police recruit.

I advised that my preliminary concerns as to your suitability were based on the reports of the Assistant Commissioner, Ethical Standards Command, dated 12 May 2006 (2005/00977), 22 May 2006 (2004/00894) and the associated internal investigations relating to your integrity, diligence and conduct.

Specifically of concern to me were the recommendations of the Assistant Commissioner, Ethical Standards Command, that you were to proceed to discipline hearing for both matters, and that the investigations supported those recommendations. In essence, there was no disciplinary hearing outcome of those matters due to your separation from the QPS prior to recommended discipline proceedings being undertaken.

Pursuant to s. 5AA.12(1)(a) PSAA, my letter also disclosed to you a copy of the relevant information which gave rise to my preliminary concerns.

In addition, pursuant to s. 5AA12(1)(b) PSAA, I sought from you any representations to wished to make about this information.

On 20 May 2021 I received your letter making representations about the relevant information.

I note that in your representations you stated that you had not been provided responses from South East Region to Ethical Standards Command, as requested at the conclusion of the Ethical Standards Command reports dated 12 May 2006 and 22 May 2006.

A response to your statement about that missing information, was provided to you by the QPS Legal Unit on 19 May 2021. I understand that the missing information had in fact been provided to you, and that the QPS Legal Unit correspondence identified where in the relevant information it could be located.

In coming to a final decision as to your suitability to be engaged as a police recruit, I have considered:

  • Relevant information as to your previous service within the QPS, including the reports of the Assistant Commissioner, Ethical Standards Command dated 12 May 2006 (2005/09977), 22 May 2006 (2004/00894) and the associated internal investigations, relating to your integrity, diligence and conduct;
  • Your recruit application; and
  • Your representations dated 18 May 2021, responding to my preliminary view of your suitability and the relevant information.

The PSAA requires a decision to assess the suitability to appoint a person as a police recruit to be based upon merit (5.2 PSAA).

Pursuant to section 5.2(5)(a) –

For the purposes of this section merit of an officer comprises –

(a) the integrity, diligence and good conduct of the officer;…

I am of the opinion that your conduct as identified during the internal investigations, despite the passage of time, remains relevant to my assessment of your merit as a police recruit.

I am aware that these investigations and subsequent disciplinary proceedings did not proceed due to your separation from the QPS prior to finalisation of these matters.

In matter 2004/00894, the marine incident involving water police vessel A P Anderson, the recommended discipline proceedings related to your untruthfulness during your participation in two separate investigations.

The investigation of the marine incident recommended disciplinary action against you for:

  • countermanding a direction of your then officer-in-charge;
  • being untruthful on two occasions; and
  • incompetence/negligence in the discharge of your duties.

In matter 2005/0097, related to an overpayment to you of $7365.16, the then Assistant Commissioner, Ethical Standards Command, formed the view that you had not exhibited the ethical behaviour expected of an officer of your experience. Disciplinary proceedings against you for misconduct were recommended.

I have reviewed both matters and I agree with the views formed by the then Assistant Commissioner, Ethical Standards Command, that disciplinary hearings ought to have proceeded. But for your separation from the service, those hearings would have been conducted. Upon finalisation of those hearings findings would have been made. I do not and cannot know what the outcome of those discipline hearings would have been.

I understand that these matters occurred some time ago, however the passage of time has not diminished the seriousness of the behaviour alleged against you at that time. In coming to my decision, I am not making any factual findings about your conduct or the possible outcome of those disciplinary hearings had they taken place. However, I am concerned that the fact that these disciplinary hearings had been recommended, following investigations which involved interviews with you, is a matter that is relevant to your suitability to rejoin the police service as a recruit.

In coming to my final decision, I must weigh the findings of the investigations into your alleged behaviour in the marine incident and overpayment and your representations against the community’s expectations that police recruits will be individuals who demonstrate the highest standards of integrity. This community expectation underpins the public confidence in the police service that all police officers will fulfill their statutory obligations ethically and effectively.

I have weighed the findings of these investigations against your representations.

On balance, my final decision is that you do not meet the standard of merit required to be engaged as a police recruit.”

  1. [33]
    The decision-maker swore an affidavit for the purpose of this proceeding in which she materially deposed that, in reaching the decision, “I had regard to all relevant policy requitements of the [QPS].”[35] Exhibited to her affidavit were the QPS’s recruitment and selection policy (“the recruitment policy”) and the police recruits standard (“the recruits standard”).[36]
  2. [34]
    The recruitment policy, under the heading “Principles”, contained the statements “Natural justice must be observed during the selection process” and “Decision making in relation to determining relative merit must be objective and transparent.”
  3. [35]
    The recruits standard contained a section 8 headed “Integrity Vetting” which materially read:

“The integrity vetting of recruit applicants is designed to ensure:

  • applicants of the highest level of integrity\good conduct are selected; and
  • police recruit applicants who have been convicted, found guilty, admonished or fined for any offence; or
  • whose integrity or good conduct is in doubt as a result of information received from community background inquiries;
  • have their application rejected if circumstance indicate the applicant lacks the level of integrity required of a police recruit or officer.

Applicants must satisfy the Service’s integrity requirements to ensure applicants meet the established high standard of integrity and good conduct. Some discretion may be exercised by the Delegated Officer in the case of applicants who do not meet the Service’s integrity requirements and where there are mitigating or other circumstances which may support appointment of the applicant.

Upon receipt of an application, the Delegated Officer is to ensure the integrity of police recruit applicants is comprehensibly vetted, including criminal and traffic history checks.

Integrity inquiries may be conducted throughout all stages of the selection process where deemed necessary to ensure applicants meet the required standards of personal integrity at the time of appointment as a police recruit or police officer.”

Consideration of the grounds of review

  1. [36]
    I turn then to the grounds of review relied upon by the applicant.

Breach of the rules of natural justice

  1. [37]
    In the present case, the decision to accept or reject the application was a decision provided for by the PSA Act.
  2. [38]
    In Kioa v West,[37] Mason J said:

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. …Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation,[38] Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter and the rules under which the decision maker is acting… In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests of purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations. …. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?”[39]

  1. [39]
    Section 5.2(2) of the PSA Act required the decision to be made “by fair and equitable procedures”. Section 5AA.12(1) of the PSA Act contemplated that, in the event of the decision-maker forming an adverse view about an applicant based on information, the decision-maker was obliged to disclose the information to the applicant and to allow the applicant “a reasonable opportunity” to make representations to the decision-maker about the information. Further, section 5AA.12(2), subject to circumstances which did not apply in the present case, provided that the decision-maker “must give reasons why the commissioner considers the person may not be suitable to be … engaged by the service”. Hence, in the particular circumstances of this case, the PSA Act contemplated that if the decision-maker relied upon information which contributed to her consideration that the applicant might not be a suitable person to be engaged by the QPS, before she made any final decision, she was obliged to disclose the information to the applicant, give reasons why she considered the applicant may not be suitable to be engaged by the QPS and allow the applicant a reasonable opportunity to make representations to her about the information.
  2. [40]
    It was not seriously in contest that the PSA Act required the decision-maker to afford natural justice or procedural fairness to the applicant in making the decision. In this regard, the decision-maker deposed that, in making the decision, she had regard to all relevant policy requirements one of which was that ‘Natural justice must be observed during the selection process”. The decision-maker’s written submission conceded that the PSA Act contemplated that the applicant was entitled to natural justice in the decision-making process.[40] 
  3. [41]
    In the present case, the critical question which arises for consideration is what did natural justice or procedural fairness require of the decision-maker when making the decision? In Re Minister for Immigration and Multicultural Affairs; Ex parte ‘A’,[41] Kirby J said:

“In Australia, it is a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power will be afforded a fair opportunity to respond to information or relevant material adverse to that person’s interests which the repository of the power proposes to take into account in deciding upon its exercise. In short, a person should ordinarily be afforded the opportunity to provide evidence or material to rebut information or material tendered against that person’s interests. As well, the person should be afforded the opportunity of persuading the decision maker, by oral or written submissions, as to the significance of the adverse evidence or material and the way in which it might be reconciled with the person’s claim.”

  1. [42]
    The procedure contemplated by ss 5AA(12)(1) to (3) of the PSA Act involves steps or stages in a decision-making process before a final decision is made. The Court is entitled to look at this type of decision-making process, as a whole, for the purpose of determining whether the requirements of natural justice were satisfied in the particular circumstances of the case. In Ainsworth v Criminal Justice Commission,[42] the joint judgement (Mason CJ, Dawson, Toohey and Gaudron JJ) said:

“It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’.”

  1. [43]
    The procedure contemplated by ss 5AA(12)(1) to (3) of the PSA Act involved a duty to disclose adverse information as an aspect of fair notice prior to any final decision being made. The procedure was meant to provide the affected party with fair notice of, and a reasonable opportunity to respond to, information or relevant material adverse to that person’s interests. In Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability,[43] the learned authors observe:

“…the duty to disclose adverse information as an aspect of notice requires decision makers to provide information about an intended course of action, or proposed decision, in sufficient detail to enable a person affected to properly exercise the right to be heard. The information disclosed may canvas all of the issues upon which the final decision is based. Adequate disclosure might sometimes also require explanation of key issues, such as why the decision maker believes that some disclosed matters are important or why some more serious outcomes are being considered. The more disclosure reveals about possible outcomes, so far as that it is permissible, the more it may resemble a statement of reasons (particularly if that disclosure is accompanied with information). In such cases, the distinction between notice that a decision may be made and why it was made may easily blur, but the conceptual distinction between the two remain.”

  1. [44]
    One circumstance where adequate disclosure may require an explanation of issues or reasoning is where proposed adverse findings or conclusions are not obviously open on the material or information to be relied upon by the decision-maker. In Minister for Immigration v SZGUR,[44] the joint judgement (French CJ and Keifel J) said:

“Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”

  1. [45]
    In Gurani v Minister for Immigration and Border Protection,[45] the Full Federal Court applied this principle by reference to whether adverse conclusions ultimately drawn by the decision-maker were “surprising or procedurally unfair”.
  2. [46]
    I have reached the conclusion that the decision-making process in the present case, viewed in its entirety, did not afford procedural fairness to the applicant. My reasoning may be set out as follows:
    1. (a)
      The 14 May 2021 letter spoke of “the information outlined” in the 12 May 2006 Ethical Standards Command memorandum and the 22 May 2006 Ethical Standards Command memorandum. That information was said to have raised “preliminary concerns” relating to the applicant’s integrity, diligence and good conduct. The preliminary concerns relating to the applicant’s integrity, diligence and good conduct, and the reasons for those concerns, were not articulated or particularised.
    2. (b)
      The 14 May 2021 letter then identified two matters said to be “[s]pecifically of concern” namely that the Ethical Standards Command had recommended that the applicant proceed to a disciplinary hearing in respect of the over payment and the marine incident and that “the investigations, at the time, supported those recommendations”. The reasons why these matters were said to be specifically of concern, were not identified.
    3. (c)
      The 14 May 2021 letter’s reference to “those recommendations” was a reference to recommendations that a disciplinary hearing occur which could not, as a matter of jurisdiction, impose a sanction involving the applicant’s dismissal from the QPS. One objective matter discernible from those recommendations was that the Ethical Standards Command had at the time formed the view that, on the basis of the investigations and assuming that the allegations the subject of the proposed disciplinary hearing were established, the applicant remained a fit and proper person to be a member of the QPS. Given this objective reality, as a matter of fairness to the applicant, if the decision-maker wished to rely upon those same recommendations as providing a basis for forming an adverse view as to whether the applicant satisfied the test of merit to be engaged as a police recruit, it was incumbent upon her to explain why she had formed those concerns and how those concerns could be reconciled with the recommendations which implicitly contemplated that, in 2006, the applicant was a fit and proper person to remain as a member of the QPS.
    4. (d)
      In contrast to the 14 May 2021 letter, the decision specified the decision-maker’s concerns about the integrity, diligence and good conduct of the applicant. Those concerns arose out of specific allegations made during the investigations concerning the marine incident and the overpayment. In relation to the marine incident, the specified concerns were that the applicant was alleged to have countermanded a direction of an officer in charge, been incompetent and negligent in the discharge of his duties and untruthful during the investigation. In relation to the overpayment, the specified concerns were that the applicant was alleged to have not exhibited ethical behaviour expected of an officer of his experience. These concerns as specified in the decision should have been specified in the 14 May 2021 letter so as to provide the applicant with fair notice of the decision-maker’s concerns about his integrity, diligence and good conduct.
    5. (e)
      Whilst the decision-maker in the 14 May 2021 letter had spoken of the information as having raised “preliminary concerns” as to the applicant’s integrity, diligence and good conduct, the decision proceeded on the basis that the information constituted, or evidenced, findings against the applicant. That the decision proceeded on this basis is tolerably clear from the language “I must weigh the findings of the investigations into your alleged behaviour in the marine incident and over payment ….” and “I have weighed the findings of these investigations against your representations”. The 14 May 2021 letter did not indicate, or reveal, to the applicant that the decision-maker intended to proceed on the basis that findings had been made against him. Further, the 14 May 2021 letter did not identify any such findings and, as a result, the applicant’s “representations” never addressed the alleged findings. Indeed, the 18 May 2021 letter made it plain that the applicant was responding to the decision-maker on the basis that the information provided to him contained “no indications of findings”.
    6. (f)
      The applicant was entitled to expect that the application would be assessed by reference to the facts as revealed by the information provided to him. Those facts included that disciplinary charges had been recommended, the applicant had resigned from the QPS before a disciplinary hearing was commenced and, as a result, no findings had been made against the applicant in respect of the matters the subject of the disciplinary charges. Initially, the decision acknowledged these facts by the statement “Upon finalisation of [the disciplinary hearing] findings would have been made. I do not and cannot know what the outcome of those discipline hearings would have been …  in coming to my decision I am not making any factual findings about your conduct or the possible outcome of those disciplinary hearings had they taken place”. However, ultimately, the decision-maker treated the matters the subject of the disciplinary charges as having been the subject of findings which she was required to consider. When it came to the critical part of her reasoning, the decision-maker proceeded on the basis that she “must weigh the findings of the investigations into your alleged behaviour”. In circumstances where there had never been a disciplinary hearing in relation to the disciplinary charges, proceeding on the basis that the information disclosed findings about the applicant’s conduct was a basis for the decision that was not obviously open on the information.  The decision-maker should have revealed this proposed basis of decision making to the applicant and provided him with an opportunity to respond to her proposed conclusions that findings had been made which she was obliged to “weigh”.
  3. [47]
    Whether findings had been made in or about 2006 and, if made, could or should be relied upon for the purpose of deciding the application in 2021, were important questions to which the applicant could have been expected to substantively respond. The applicant’s responses may well have extended to the nature, extent and character of the earlier investigations. Further, the decision was concerned with the merit of the applicant as revealed by the application which fell to be considered and determined in 2021. The events and allegations the subject of the disciplinary charges had occurred almost two decades earlier. The applicant may well have wished to provide a response addressing whether the gravity of any specific identified finding (if such a finding was made) was lessened or diluted by the circumstances in which it was made, the effluxion of time and by reference to contemporary facts and circumstances.[46] 
  4. [48]
    In my assessment the process pursued by the decision-maker fell short of the standard of fairness required to discharge natural justice. The deficiencies in the procedure meant that the substantive reasons why the decision-maker considered that the applicant was not suitable to be engaged by the QPS first emerged in the decision rather than in the disclosure required by ss 5AA.12(1) and (2) of the PSA Act. The applicant was thereby deprived of the reasonable opportunity to respond to matters that were significant to the decision to reject the application. Had the applicant been fairly appraised of those matters, as a matter of reality and not mere speculation, he could have provided a response to the decision-maker that may have influenced the determination of the application.[47] In the circumstances, there was a substantial denial of natural justice.

Were procedures required by law to be observed, not observed?

  1. [49]
    For the reasons I have already provided, the procedure contemplated by ss 5AA(12)(1) to (3) of the PSA Act was intended to provide natural justice to the applicant in the determination of the application. In the circumstances which occurred, the procedure followed by the decision-maker did not provide the applicant with natural justice. In those circumstances, and on the basis of the reasoning I have already outlined, there was a failure to comply with the procedures required by law to be observed.[48]

No evidence or other material to justify the making of the decision

  1. [50]
    This ground although raised in the application for statutory orders of review was not addressed by the applicant in his written or oral submissions. I conclude that the ground was abandoned by the applicant.[49]

Other grounds referred to in the applicant’s written submissions

  1. [51]
    The applicant’s written submissions departed from the application by identifying five grounds of review. I am able to deal with these grounds briefly. The grounds identified in the written submissions as grounds four and five fell squarely within the natural justice ground. It is not necessary for me to considers those grounds separately to my consideration of the natural justice ground. Ground three appears to be a ground not so much concerned with judicial review but with the merits of the decision-making process, namely whether, in addressing the merit of the applicant, the respondent ought to have taken into account the applicant’s more recent conduct, occupations and activities. Ground one was premised on the alleged unlawful inclusion of certain documents relating to disciplinary proceedings commenced against Senior Constable Foessel in relation to the marine incident. It is unclear on the material whether these documents were in fact used by the decision-maker in assessing the applicant’s suitability to be engaged as a recruit. Further, the documents appear to me to have included “relevant information” within the meaning of that term as defined by s 1.4 of the PSA Act as they included information about the marine incident. Ground two concerned an alleged failure to disclose information to the applicant being “the responses from South Eastern Region to the Ethical Standards Command as requested at the conclusion of [the 12 May 2006 Ethical Standards Command memorandum and the 22 May 2006 Ethical Standards Command memorandum]”. The evidence established that the responses requested had been “as to the outcome of the disciplinary hearing”. As events transpired, there was no disciplinary hearing and no responses of the precise type requested existed. The material provided to the applicant included advice passing between the South Eastern Region and the Ethical Standards Command concerning the applicant’s retirement on medical grounds from the QPS at a time when the disciplinary hearings had not commenced. I find that grounds one to three as developed in the applicant’s written submissions did not establish a ground for statutory review of the decision.

Orders

  1. [52]
    The orders I make are as follows:
  1. The decision of Assistant Commissioner Charysse Pond as contained in the letter from Assistant Commissioner Charysse Pond to the applicant dated 3 June 2021 is set aside;
  2. The applicant’s application to join the Queensland Police Service as a police recruit is referred to the Commissioner of Police for further consideration and decision according to law.
  1. [53]
    I will hear the parties as to costs.

Footnotes

[1]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021, ex CP-5, p 032.

[2]  The Police Service Administration Regulation 2018 (Qld), reg 7(f).

[3]  The PSA Act, s 4.10(2).

[4]  The PSA Act, s. 5AA.12(3).

[5]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021, ex CP-16, pp 422-423.

[6]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021, ex CP-17, pp 424-426.

[7]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021, ex CP-18, pp 460-462.

[8]  JR Act s 20(2)(a).

[9]  JR Act s 20(2)(b).

[10]  JR Act s 20(2)(h).

[11]  The Discipline Regulations, reg 3.

[12]  The Discipline Regulations, reg 3.

[13]  The Discipline Regulations, reg 10.

[14]  The Discipline Regulations, regs 5-8.

[15]  The Discipline Regulations, regs 6-8.

[16]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021, ex CP-2, p 008.

[17]  Ibid, ex CP-2, p 004.

[18]  Ibid, ex CP-2, pp 004-005.

[19]  Ibid, ex CP-2, pp 004-012.

[20]  Ibid, ex CP-4, p 028.

[21]  Ibid, ex CP-3, p 024.

[22]  Ibid, Ex Cp-1, pp 001-003.

[23]  Ibid ex CP-12 pp 086-087.

[24]  Ibid ex CP 9 pp 059-060.

[25]  Ibid ex CP7 pp 42-43

[26]  Ibid ex CP5, p 33.

[27]  Ibid.

[28]  Ibid, ex CP 5, p 032.

[29]  Ibid, Ex CP 16, pp 422- 423

[30]  Affidavit of James Broadbent filed 6 September 2021 Ex JB 1 p 002

[31]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021 ex CP 017 at pp 424-5.

[32]  Affidavit of James Broadbent filed 6 September 2021 Ex JB 2 p 003

[33]  Affidavit of James Broadbent filed 6 September 2021 Ex JB 3 p 006

[34]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021 ex CP 018 at pp 460-62

[35]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021 [16]

[36]  Affidavit of Assistant Commissioner Charysse Pond filed 3 September 2021 ex CP 019.

[37]  (1985) 159 CLR 550, 584 -5. 

[38]  (1963) 113 CLR 475, pp 503-504.

[39]  As to further statements by the High Court as to the variable content of the rules of natural justice see Salemi v MacKellar (No 2) (1977) 137 CLR 388, 444; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 320.

[40]  Outline of submissions on behalf of the respondent filed 3 September 2021 at [16]

[41]  (2001) 185 ALR 489, 498 [43].

[42]  (1992) 175 CLR 564, 578.

[43]  Lawbook Co, 2017, 6th ed at [8.420] p 627.

[44]  (2011) 241 CLR 594, 599.

[45]  (2014) 315 ALR 130, 142 [61] and [67].

[46] Cutler v Commissioner of Police Service [2001] QSC 161 at [42]

[47] John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302, 322.

[48] Minister for Immigration v SZIZO (2009) 238 CLR 627 at 640 [35]; Aronoson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, Lawbook Co, 2017, 6th ed at [6.280] p 359.

[49] HAP2 Pty Ltd v Bankier [2020] QCA 152 at [132]

Close

Editorial Notes

  • Published Case Name:

    O'Brien v Commissioner of the Queensland Police

  • Shortened Case Name:

    O'Brien v Commissioner of the Queensland Police

  • MNC:

    [2021] QSC 349

  • Court:

    QSC

  • Judge(s):

    Kelly J

  • Date:

    17 Dec 2021

Appeal Status

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

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