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O'Brien v Commissioner of Police[2024] QSC 82

O'Brien v Commissioner of Police[2024] QSC 82

SUPREME COURT OF QUEENSLAND

CITATION:

O'Brien v Commissioner of Police [2024] QSC 82

PARTIES:

BRETT MICHAEL O'BRIEN

(applicant)

v

COMMISSIONER OF POLICE

(respondents)

FILE NO:

BS 13024 of 2022

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

16 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2023

JUDGE:

Sullivan J

ORDER:

The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – 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 the decision-maker refused the application – where the applicant seeks a statutory order of review on three grounds – whether the applicant was denied natural justice – whether procedures required by law were not observed – whether there was evidence or other material to justify the making of the decision

Acts Interpretation Act 1954 (Qld), s 27B

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judicial Review Act 1991 (Qld), s 20, s 24

Police Service Administration Act 1990 (Qld), s 4, s 5, s 5AA

Police Service Administration (Discipline Reform) and Other

Legislation Amendment Bill 2019, explanatory notes (Qld)

Police Services Administration Regulation 2016 (Qld), s 7

Aldrich v Ross (2001) 2 Qd R 235

Australian Retailers v Reserve Bank (2005) 228 ALR 28

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225

Cutler v Commissioner of Police Service [2001] QSC 161

Huntington v State of Queensland (Queensland Health) [2022] QIRC 290

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No. 1 of 2003

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

O'Rourke v Miller (1985) 156 CLR 342

Police Service Board v Morris (1985) 156 CLR 397, 412

Sunchim Pty Ltd v Commissioner of Taxation [2010] FCA 21

COUNSEL:

The applicant appeared on his own behalf

M Nicolson for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Queensland Police Service for the respondent

  1. Introduction
  1. [1]
    The current proceeding was commenced by way of an originating application on 25 October 2022. It is an application for a statutory order of review made pursuant to s 20 of the Judicial Review Act 1991 (Qld) (“the JR Act”).
  1. [2]
    The decision involves an application by Mr O'Brien to be appointed a police recruit in the Queensland Police Service (“QPS”).
  1. [3]
    The Commissioner of Police has the power to make a decision in relation to such an application pursuant to s 7(f) of the Police Services Administration Regulation 2016 (Qld). This decision is one which is able to be delegated by the Commissioner of Police pursuant to s 4.10(2) of the Police Service Administration Act 1990 (Qld) (“the PSA Act”).
  1. [4]
    The PSA Act has a number of provisions which concern the decision-making process for such an application.
  1. [5]
    Section 5.2(2) of the PSA Act relevantly provides as follows:
  1. 5.2
    Appointment to be on merit on impartial procedures
  1. …
  1. (2)
    A decision to appoint a person…as a police recruit…must be made by fair and equitable procedures that—
  1. (a)
    include inviting applications and selection on the basis of the merit of applicants
  1. …
  1. [6]
    Section 5AA.12 of the PSA Act relevantly provides as follows:

5AA.12

Particular persons to be advised if person unsuitable

  1. (1)
    If, because of information relied on by the commissioner under this part, 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
  1. (b)
    give reasons why the commissioner considers the person may not be suitable to be, or continue to be, engaged by the service; and
  1. (c)
    allow the person a reasonable opportunity to make representations to the commissioner about the information.
  1. …
  1. (3)
    If, after considering any representations made under subsection (1)(c), the commissioner decides the person is not suitable to be…engaged by the service, the commissioner must give the person a written notice stating that the person is not suitable to be…engaged by the service.
  1. …
  1. [7]
    Prior to the current decision the subject of this review, there had been three other prior decisions made by the Commissioner of Police, via a delegate, which had each refused the application for the appointment of Mr O'Brien as a police recruit. On each of those three occasions the relevant decision was set aside and remitted to the Commissioner for further re-determination.
  1. [8]
    The last of those three prior decisions was the subject of a decision of this Court in O'Brien v Commissioner of the Queensland Police Service [2021] QSC 349, by his Honour Justice Kelly.
  1. [9]
    The fourth and most recent decision was made on 27 September 2022 by Assistant Commissioner Scanlon, as delegate for the Commissioner, and refused the application.
  1. [10]
    It is this fourth decision which is the subject of this current proceeding.
  1. [11]
    Turning then to the application itself. Mr O'Brien’s application seeks an order of review based on three grounds:
  1. (a)
    Breach of the rules of natural justice (s 20(2)(a) of the JR Act);
  1. (b)
    Procedures that were required by law were not observed (s 20(2)(b) of the JR Act);
  1. (c)
    No evidence or other material to justify the making of this decision (s 20(2)(h) of the JR Act).
  1. [12]
    A fourth ground was raised in written submissions, namely that the decision was unreasonable.
  1. [13]
    Only the first, second and third grounds were pressed. Mr O'Brien expressly identified that he no longer pressed the fourth ground.
  1. Factual background to the decision
  1. [14]
    Mr O'Brien had been a member of the QPS from 1991 until his medical retirement in 2008. Prior to his leaving the QPS, there had been two relevant events that had occurred which involved Mr O'Brien. Each of these events had been the subject of internal investigations, which ultimately led to recommendations being made for disciplinary charges to be laid against Mr O'Brien.
  1. [15]
    Mr O'Brien became ill and eventually retired from the QPS before any disciplinary hearing could occur in respect of those recommended disciplinary charges. Consequently, those recommended disciplinary charges were never the subject of a determination within a disciplinary proceeding.
  1. [16]
    The first event involved an overpayment of wages into Mr O'Brien’s bank account for the pay period 1 November 2003 to 14 November 2003 (“the Overpayment Incident”). The second event had involved a marine incident, which occurred on the Gold Coast on 18 April 2004 (“the Marine Incident”).
  1. [17]
    It is necessary to provide some more detail in respect of each of those events.
  1. The Overpayment Incident
  1. [18]
    The Overpayment Incident involved an amount of $7,365.16 being paid into Mr O'Brien’s bank account that he was not entitled to. A portion of that amount was deducted for tax, so the extra amount received in Mr O'Brien’s bank account was approximately $4,000.
  1. [19]
    On 26 April 2005, a complaint was received from an Inspector, raising concerns in relation to the conduct of Mr O'Brien in relation to the overpayment. As a result of that complaint, the Ethical Standards Command (“ESC”) of the QPS caused Detective Senior Sergeant Millard to investigate the complaint. This investigation included Detective Senior Sergeant (“DSS”) Millard interviewing Mr O'Brien, and a number of other police officers who were stationed with Mr O'Brien at the Gold Coast Water Police, at or about the time the overpayment was made.
  1. [20]
    As a result of this investigation, DSS Millard made recommendations via a letter dated 24 May 2005. The letter provided, inter alia, as follows:[1]
  1. “8. Matters for Consideration
  1. …
  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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 8.7
    ...In this case I would submit the subject officer should have continued to follow up with the QPS.
  1. 9. Recommendations
  1. 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.
  1. 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. …”
  1. [21]
    It can be seen from the letter that DSS Millard did not recommend that the complaint proceed to a formal disciplinary hearing.
  1. [22]
    The recommendations referred to above were the subject of consideration by a Superintendent Pointing. On 4 April 2006, Superintendent Pointing provided a memorandum to the Assistant Commissioner of the South Eastern Region. This memorandum recommended that the complaint progress to a formal disciplinary hearing. It relevantly provided as follows:[2]
  1. “…
  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.
  1. 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.
  1. 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….
  1. 5.
    The investigation concluded no criminal offence has been committed by Sergeant O'Brien. I concur with this view ...
  1. 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.
  1. 7.
    I consequently recommend that disciplinary action for misconduct be commenced against Sergeant O'Brien. The recommended wording of the charge being:
  1. 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.
  1. 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.
  1. 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. …”
  1. [23]
    The matter was then the subject of further consideration by the Acting Assistant Commissioner of the South Eastern Region, who was Assistant Commissioner Davey. On 18 April 2006, the Assistant Commissioner delivered his own recommendations to the Assistant Commissioner, Ethical Standards Command (Assistant Commissioner Stewart) via a memorandum. This recommendation was for the complaint to be dealt with by managerial guidance and not by a formal disciplinary process. It provided as follows:[3]

“…

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. [24]
    Finally, the matter was considered by Assistant Commissioner Stewart. Assistant Commissioner Stewart produced a responsive memorandum to the memorandum of Assistant Commissioner Davey. This memorandum was dated 12 May 2006. It relevantly provided as follows:[4]
  1. “…
  1. 2.
    …The investigation report of Det Snr Sgt Millard, the report of Supt B Pointing and your recommendations have been considered.
  1. 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.
  1. 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.
  1. 5.
    …
  1. 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.
  1. 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.
  1. 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…
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 13.
    Your advice in due course, as to the outcome of the disciplinary hearings together with appropriate notices, would be appreciated…” (Footnotes omitted)
  1. [25]
    This last memorandum represented the most senior and determinative consideration of the matter. It, of course, was not a final determination of the issues but represented a decision that the conduct should proceed to a formal disciplinary proceeding.
  1. [26]
    As identified above, a formal disciplinary proceeding did not eventuate due to Mr O'Brien being ill and ultimately his then retirement from the QPS.
  1. The Marine Incident
  1. [27]
    I turn next to the Marine Incident.
  1. [28]
    This incident involved a single outboard motor powered vessel known as the AP Anderson, some six metres in length.
  1. [29]
    A Senior Constable (“SC”) Foessel had been previously directed by his Officer-in- Charge, a Senior Sergeant (“SS”) Day, not to master the AP Anderson solo.
  1. [30]
    At about midday on Thursday 18 April 2004, there was a significant marine incident involving the AP Anderson. At that time, only SC Foessel was present on and in charge of the vessel. On the day in question, Mr O'Brien had been rostered on with SC Foessel, however, Mr O'Brien had taken sick leave that day. Mr O'Brien gave SC Foessel permission to operate the AP Anderson solo.  It is alleged that Mr O'Brien granted this permission, despite being aware that SC Foessel had been given a direction to the contrary by the Officer-in-Charge. It is alleged that the Marine Incident had resulted from operator error on the part of SC Foessel when he crossed the wake of a larger vessel and was subsequently thrown overboard. SC Foessel was not wearing a safety lanyard which was available, and which would have automatically cut the motor to the vessel under such circumstances. As a result of his not wearing the lanyard, the vessel continued on crewless and at speed, narrowly missing another vessel before coming to ground on nearby Coomera Island.
  1. [31]
    As with the Overpayment Incident, there was an investigation and then a consideration of the matter by a number of people. First, Assistant Commissioner Davey provided a memorandum to Assistant Commissioner Stewart on 26 April 2006. It provided, inter alia, as follows:[5]

“…

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. [32]
    The above memorandum recommends the institution of disciplinary proceedings.
  1. [33]
    There was then a responsive memorandum from Assistant Commissioner Stewart to Assistant Commissioner Davey. This memorandum materially provided as follows:[6]
  1. “…
  1. 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.
  1. …
  1. 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.
  1. 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.
  1. 7.
    This Command would appreciate your advice in due course as to the outcome of any disciplinary action taken.
  1. …”
  1. [34]
    Assistant Commissioner Stewart’s memorandum did not represent a final determination, rather it was a recommendation to progress the complaint to a formal disciplinary hearing.
  1. [35]
    Again, due to the illness of Mr O'Brien and then his retirement, a formal disciplinary proceeding did not eventuate.
  1. [36]
    His Honour Justice Kelly found that if the disciplinary proceedings had taken place, Mr O'Brien would not have been exposed to dismissal as a sanction had the charges been made out.[7] This flowed from the level of seniority of the designated presiding officer and the limits of sanctions which such an officer was authorised to impose. More specifically, Kelly J found as follows:[8]
  1. [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.
  1. (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;
  1. (c)
    At the time that the applicant had retired from the QPS, the disciplinary hearing had not commenced, and the disciplinary matters remained unresolved;
  1. (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. (Footnotes omitted)
  1. …”
  1. [37]
    Each of these matters were equally evident on the material before the decision- maker on this fourth occasion.
  1. Process leading to the current decision
  1. [38]
    As referred to above, the order of Kelly J of 22 October 2021 referred the relevant decision to the Commissioner for further consideration of the decision according to law. This was the fourth occasion for the Commissioner of Police to consider the relevant decision.
  1. [39]
    The process for the decision began with the delivery of a Preliminary Decision Letter of 8 June 2022. Whilst lengthy, it is appropriate to set out the majority of that preliminary decision. It relevantly provided as follows:[9]
  1. “I refer to your application to join the Queensland Police Service (QPS) as a police recruit and note this application has a lengthy history, most recently culminating in decision of Justice Kelly in O'Brien v Commissioner of the Queensland Police [2021] QSC 349 in the Supreme Court on 17 December 2021.
  1. …
  1. I have had regard to the decision of the Supreme Court, in addition to the decision of Assistant Commissioner Pond subject of those proceedings. As correctly noted in that judgement, the decision to appoint a person as a police recruit is made pursuant to the prescribed responsibilities of the Commissioner of Police under the Police Service Administration Act 1990 (Qld)(PSAA).
  1. The decision to appoint a person to a police officer position must be undertaken in accordance with the principles of merit enunciated in section 5.2 and Part 5AA of the PSAA. In this regard, section 5AA.11 provides the Commissioner significant latitude to obtain and consider a broad range of information, and permit the Commissioner to have regard to all relevant information available to the Commissioner including information stored on a database kept by the Commissioner or otherwise available to the Commissioner.
  1. In accordance with those provisions, I have had regard to the following documents:
  1. 1.
    Police Recruitment file
  1. 2.
    Ethical Standards records pertaining to your previous employment, including:
  1. a.
    The reports of the Assistant Commissioner, Ethical Standards Command, dated 12 May 2006 (2005/00977) and 22 May 2006 (2004/00894) recommending you proceed to discipline hearing for both matters, and that the investigations supported those recommendations;
  1. b.
    The associated internal investigations documents in relation to the two events involving yourself which led to the recommendations for disciplinary charges to be laid against your prior to your medical retirement from QPS;
  1. 3.
    Your submissions dated 18 May 2021 making representations to Assistant Commissioner Pond about the relevant information.
  1. In summary, as noted by the Supreme Court, the first event had involved an overpayment of a substantial amount of monies into your 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”).
  1. I note that all relevant documents referred to above have previously been disclosed to you during the course of the earlier proceedings and have therefore not attached a copy of the same to this correspondence. Despite this, should you require an additional copy of the same, please do not hesitate to advise Mr Craig Capper, Director Legal Service who can furnish you with a further copy of the same.
  1. I acknowledge that no disciplinary hearing was convened, and the disciplinary charges were never resolved prior to your medical retirement from the Queensland Police Service. I concur with the views of Assistant Commissioner Pond, namely that your conduct as identified during the internal investigations remains relevant to my assessment of your merit as a police recruit, despite the passage of time.
  1. Further, I acknowledge that the discipline proceedings did not proceed, due to your separation from the QPS prior to finalisation of these matters, and further note that the original recommendation was that the matter be deal with by an Assistant Commissioner who could not impose the ultimate sanction of dismissal.
  1. Despite this, I note that the provisions of Part 5AA PSAA are expressed in sufficiently broad terms to provide the Commissioner (or her delegate) with a largely unfettered discretion to consider all relevant material pertaining to the assessment of a person’s suitability to be appointed as a police officer. There is no time limitation expressly or implied into this provision.
  1. Further, regard may be had to any disciplinary records on a database maintained by the Commissioner and any disciplinary records of other agencies disclosed to the Commissioner pursuant to Part 5AA of the PSAA. Nothing in these provisions exclude the Commissioner from considering discipline matters other than those which resulted or could have resulted in dismissal from employment.
  1. I note that the decision to terminate an employee, or the decision to engage an employee, factor many of the same considerations, however the decisions also possess discrete and relevant differences.
  1. In this regard it is noted that:
  • An employer has a fiduciary relationship of master servant with an employee which gives rise to obligations to maintain trust and confidence. No such relationship exists between and employer and prospective employee;
  • Employer and employee relationship are subject to an underlying and inherent social and psychological contract which consists of beliefs about reciprocal obligations between the two parties. No such contract, implied or otherwise, exists between an employer and a prospective employee;
  • In recognition of this fiduciary relationship, the purpose of discipline of an employee is not to be punitive, but rather is intended to be restorative and rehabilitative. A prospective employer is under no obligation to employ a person whom they consider will require rehabilitation or remedial training;
  • The termination of an employee, and resultant loss of knowledge skills and experience can have a significant detrimental effect on the business activities of an organisation, and can have significant personal detriment to the employee. Accordingly, termination of the contract of employment relationship is thereby considered a sanction of last resort. No such relationship is relevant to a prospective employee and therefore this factor is of little to no relevance to the decision to engage an employee;
  1. Accordingly, a decision not to termination an existing employee for a relevant discipline ground does not preclude, or dictate, that the same conduct or grounds cannot found a decision not to re-engage a person as an employee as there is a distinct difference in the parties relationships and relevant considerations. Conduct which may not necessarily have been sufficient to terminate an employee may still be sufficient to ground a decision not to re-employ the person.
  1. In matter 2005/0097, 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.
  1. 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 revealed compelling evidence of your untruthfulness to superior officers. As a consequence, 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.
  1. Having reviewed both of these matters, I have formed a preliminary view that accords with the view formed by the then Assistant Commissioner, Ethical Standards Command in 2006, namely that prima facie the conduct was sufficiently particularised, and sufficient evidence existed, to establish grounds for discipline and that the matters should have proceeded to disciplinary hearings.
  1. Further, based on the information presently available to me, the evidence establishes that;
  1. As to matter 2005/0097 (namely the overpayment to you):
    • There was an overpayment made in your favour of $7365.16;
    • These monies were taxpayers’ monies to which you had no entitlement;
    • There was sufficient evidence to establish that you were aware of the of the overpayment by virtue of the amount of monies, and the discussions of the same with colleagues;
    • You failed to take any proactive steps to notify the relevant responsible areas of QPS of the overpayment;
    • You failed to rectify the overpayment or proactively return the monies when you became aware of the same;
  • But for the complaint filed against you, the overpayment would have likely gone undetected due to systems issues, however also due to your failure to report the same;
  • While you were willing to repay the monies once the overpayment was identified and subject of a complaint, this is not a matter which mitigates your liability for the earlier conduct;
  • The alleged conduct was not only improper, but arguable unethical and dishonest;
  • Your alleged conduct was sufficient to render you liable to discipline had you remained employed with QPS.
  1. As to matter 2005/0097 (namely the marine incident):
    • The QPS was conducting investigations in relation to various matters;
    • Your alleged conduct involved your untruthfulness while participating in two separate investigations;
    • The investigation revealed compelling evidence of your untruthfulness to superior officers;
    • Further, you were alleged to have:
      • countermanded a direction of your then officer-in-charge;
      • being untruthful on two occasions; and
      • acted with incompetence/negligence in the discharge of your duties;
    • Your alleged conduct was sufficient to render you liable to discipline had you remained employed with the QPS.
  1. Subject to any submissions you wish to make about my preliminary factual findings above, and generally as to the matters below, I am of the view that:
  • The conduct was improper and conduct that was unbecoming of a police officer;
  • The conduct falls well below the standards of ethical behaviour, honesty and integrity expected of employees by the QPS;
  • The conduct falls well below the standards expected of police officer by the community (whether applied at the time or presently);
  • The first incident (as alleged) demonstrates a willingness on your behalf to engage in deceitful, if not dishonest, behaviour contrary to standing directions and policies applying to such circumstances.
  • The second incident exacerbates this concern as the matter also allegedly involved a level of dishonestly and acting contrary to directions;
  • The maintenance of discipline, command and control within the QPS is premised on all members complying with all lawful and reasonable directions of senior officers;
  • The maintenance of public confidence in the QPS and its employees is a significant factors which must be weighed into consideration of your suitability to be engaged as an employee of QPS. Public confidence in the administration of the Queensland Police Service includes members of the public being assured those administering that Service do not allow persons who have engaged in serious misconduct, wilful dishonesty and otherwise unethical behaviour to continue to be employed or engaged by, the Police Service;
  • There is a significant incompatibility between your alleged conduct and the maintenance of confidence in the Queensland Police Service.
  1. In coming to my final decision, I will be required to assess the evidence, make final factual findings about the alleged conduct and weigh the findings of the investigations into your alleged behaviour in the two incidents referred to above. Before doing so, I must have regard to any representations you may wish to make.
  1. Accordingly, I am inviting you to make any further submissions you wish to make about your suitability to be employed by the QPS, including but not limited to:
  • Whether the findings of fact identified above about the allegations are accepted, or otherwise open to me on the basis of the materials;
  • What, if any inferences, are available to me arising from the findings of facts;
  • The relevance and weight to be given to any such evidence in assessing your suitability to be employed as a police officers;
  • The gravity and seriousness of the conduct, and your views in relation to the relevance of such conduct in assessing your suitability to be employed as a police officer;
  • Whether the passage of time, and any personal matters, circumstances or reflections occurring within that passage of time, have affected the gravity and seriousness of the conduct on my assessment of your suitability to be a police officer; and
  • Any additional information you may wish to provide about your current circumstances, suitability to be re-employed with the Queensland Police Service as a police officer.
  1. As community expectation underpin public confidence in the police service, namely that all police officers will fulfil their statutory obligations ethically and effectively in accordance with standing directions and policies. Accordingly, I must also weigh any factual matters against the community’s expectations that police recruits will be individuals who demonstrate the highest standards of integrity. Consequently, I would also welcome submissions about community expectations of police officers and how you meet those expectations.
  1. I am prepared to allow you a period of 28 days from the date of this correspondence to make representations about this information, if you choose to do so.
  1. Upon the earlier of the expiration of the 28 days, or upon receipt of any representations from you, I will make a final decision as to your suitability to be engaged by the QPS.”
  1. [40]
    By an email dated 21 August 2022, Mr O'Brien complained about the decision- maker not having made a decision in relation to the application. Mr O'Brien foreshadowed the making of a complaint in relation to the tardiness of the decision- maker. As part of the email, the following statements were made:
  1. “…QPS reasons for refusing my application on integrity grounds have been extensively tested. I have always maintained that the complainant of ‘disobey direction’ made by Inspector Day (ESC) in 2004 was fabricated, first investigation dismissed due to lack of evidence, second investigation was never finalised (after 4 years). I have been denied complete access to view or test any evidence in almost 20 years. The court held that this was a denial of Natural Justice and ordered a new decision.…”[10]
  1. [41]
    The email also attached a written document from Mr O'Brien which, in part, made criticisms about the Preliminary Decision Letter of 8 June 2022. It provided as follows:
  1. “I refer to your letter dated 8 June 2022 in relation to my 2016 Queensland Police Service recruit application. This matter has been the subject of three Judicial Reviews. I was provided 28 days to respond to this letter. I was advised that further information would be provided. No other information was provided to me. Below is a summary of action taken in an attempt to resolve this application.
  1. Application Process

14 October 2016

Queensland Police recruit application lodged

25 May 2017

Applicant finalised all aspects of the recruitment process

24 January 2020

Applicant made a complaint to Queensland Ombudsman in relation to Respondent failure to make a decision

1 March 2020

Decision made by Inspector Cannes. Applicant was deemed not suitable due to reasons of integrity.

21 October 2020

Judicial Review 1 (6094/20) - Respondent conceded error of law. Consent order - Set aside decision, make a new decision.

20 November 2020

Decision made by Assistant Commissioner T.J. Lawrence. Applicant deemed not suitable due to reasons of integrity.

30 April 2021

Judicial Review 2 (13213/20) - Respondent conceded error of law. Consent order - Set aside decision, make a new decision.

3 June 2021

Decision made by Assistant Commissioner Pond. Applicant deemed not suitable due to reasons of integrity.

14 June 2021

Judicial Review 3 (6737/21) lodged.

18 December 2021

Judicial Review 3 - decided in my favour

  1. Judicial Review 1 - 6094/20
  1. 1.
    The Respondents concession:
  1. a.
    The Respondent concedes an error of law in the decision- making process
  1. b.
    New discipline system, subsequent amendments to Police Service Administration Act 1990 (PSAA), set time limits for discipline matters.
  1. c.
    Applicant disciplinary matters all of the relevant dates have passed.
  1. d.
    The Respondent concedes that the delegate failed to comply with the PSAA.
  1. Judicial Review 2 - 13213/20
  1. 2.
    The Respondents concession:
  1. a.
    The Respondence concedes an error of law in the decision-making process
  1. b.
    Decision failed to comply with PSAA s 5AA. 12.
  1. c.
    Applicant was not provided with an opportunity to respond.
  1. d.
    The Respondent concedes that the Delegate failed to comply with the PSAA.
  1. Judicial Review 3 - (6737/21)
  1. 3.
    Justice Kelly decided in O'Brien v Commissioner of the Queensland Police
  1. a.
    The assessment of the two finalised, 2003 & 2004 application had denied natural justice.
  1. b.
    The decision maker failed to consider to provide scientific reasons why the applicant was unsuitable.
  1. With respect, the letter identified the same issues which have already been dealt with. The decision maker has again failed to provide information relied upon. The decision maker has failed to identify what are the specific concern of the decision maker.
  1. As per the last three decisions, I acknowledge that two complaints were made in 2004 & 2005 by Inspector Barry Day (Ethical Standard Command). Both complaints related to alleged conversations from around 2003 (no date provided) with no witnesses, records or any notes. As previously stated, I have never viewed the allegations or witness statements and maintain the complaints were fabricated as retribution by Inspector Day.
  1. I have never been provided any evidential material. I maintain that if I was given the opportunity, I would have contested both matters. I dispute the facts of both matters.
  1. I believe process followed by Assistant Commissioner Scanlon have already been dealt with in the previous Judicial Reviews, specifically;
  1. 1.
    Failed to comply with PSAA s 5AA.12. Information relied upon was not provided
  1. 2.
    Failed to provide specific reasons why unsuitable (O’Brien v Commissioner of Police)
  1. As the reasons identified in the letter are identical to that which have been deal with in the previous three judicial review. It again, fails to comply with provisions of Police Service Administration Act 1990. (PSAA)
  1. The preliminary decision has failed to consider PSAA Section 5AA.12
  1. 5AA.12 Particular persons to be advised if person is unsuitable
  1. (1)
    If, because of information relied on by the commissioner under this part, the commissioner considers a person, other than a PSBA employee or an external service provider, may not be suitable to be, or continue 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
  1. (b)
    Allow the person a reasonable opportunity to make representations to the commissioner about the information
  1. (2)
    The commissioner must give reasons why the commissioner considers the person may not be suitable to be, or continue to be, engaged by the service unless the commissioner considers the disclosure of the information may--
  1. (Intentionally highlighted)
  1. As per the previous decisions, I have not been provided information considered by the decision maker.
  1. A/C Scanlon letter states; (page 1 & 2)
  1. I have had regard to the following documents;
  1. 1.
    Police recruitment file
  1. 2.
    Ethical Standard reports
  1. a.
    Reports of ESC
  1. b.
    Associated internal investigations
  1. 3.
    Your submission dated 18 May 2021.
  1. NO documents were provided. Two emails were sent to Mr Capper requested the document.
  1. A/C Scanlon letter states; (page 5)
  1. “I’m inviting you to make any further submission you wish to make about your suitability to be employed by the QPS.”
  1. I have not been given reasons why not suitable. The letter describes factually findings. This was address by Justice Kelly. I’m unsure what makes my application unsuitable, there were no factual findings. The proposed ‘factual finding’ assessment by Assistant Commissioner Scanlon will fail to provide ‘Natural Justice’ and is a kin to a ‘kangaroo court’.
  1. As this preliminary decision from Assistant Commissioner Scanlan is identical to that made by Assistant Commissioner Pond (Judicial review 3), my response is already contained in the documents reviewed which has been identified in the letter as;
  1. “3.
    Your submission dated 18 May 2021 making representations to Assistant Commissioner Pond about the relevant information”
  1. Please contact me if you require any further information.”
  1. [42]
    On 16 August 2022, an application brought by Mr O'Brien was made to the Supreme Court to press the decision-maker for a final decision.
  1. [43]
    On 16 August 2022, an application brought by Mr O'Brien was made to the Supreme Court to press the decision-maker for a final decision.
  1. (a)
    the decision-maker to provide Mr O'Brien with any additional materials relied upon for the purposes of making the decision, by 8 September 2022;
  1. (b)
    Mr O'Brien to provide the decision-maker with any additional submissions proposed to be relied upon in support of the application by no later than 22 September 2022; and
  1. (c)
    the decision-maker to advise Mr O'Brien of the decision by no later than 7 October 2022.
  1. [44]
    By 7 September 2022, the legal representatives for the QPS provided documents relied upon by the decision-maker for the purpose of making the decision. The QPS submitted that most, if not all, of these documents had previously been available to Mr O'Brien by various means in the past. That submission is substantiated on the evidence.
  1. [45]
    At the hearing of this application, Mr O'Brien confirmed that he took no issue with the timing of the provision of these documents. There is no contention before the Court to the effect that there was insufficient time to review the documents and respond to them.
  1. [46]
    Mr O'Brien then provided his further submissions, consistent with the consent order of Boddice J. This was done by a letter dated 13 September 2022. The letter provided as follows:[11]
  1. “Response is referenced to:
  1. 1.
    Justice Kelly Orders issued on 14 December 2021
  1. 2.
    Preliminary decision of Assistant Commissioner Scanlon dated 8 June 2022
  1. 3.
    Response letter by Brett O'Brien dated 9 June 2022
  1. 4.
    Consent orders issued dated 1 September 2022
  1. 5.
    Documents provided by Mr Capper, QPS Legal dated 7 September 2022
  1. Dear Assistant Commissioner Scanlon,

This matter relates to my 2016 QPS Recruit Application and specifically the QPS assessment that my application failed due to an integrity assessment.

It is clear that these matters have been already extensively reviewed. QPS engaged an independent review and the matter has been subject to three Judicial Reviews. All reviews have found in my favour.

Despite, Justice Kelly’s ruling that the process was a denial of ‘Natural Justice’. It is clear that you have chose to use the exact methodology and supporting documents that were found wanting by Justice Kelly.

I note in page three of your letter, that you provide information about how the relationship between perspective employee differs from that of an employee. This is perhaps a correct legal principle in many areas of employment law.

However, in relation to the engagement of employment as ‘Recruit’ in the QPS, the Queensland Police Administration Act (1990), Section 5.5(2) has no such differential. Police recruit is employed under the same conditions as any other officer with in the service. There is a clear intention to NOT have separate level of relationship.

  1. 5.2
    Appointment to be on merit on impartial procedures
  1. (2)
    A decision to appoint a person as a police recruit or to a police officer position must be made by fair and equitable procedures that--
  1. (a)
    include inviting applications and selection on the basis of the merit of applicants; and
  1. (b)
    prevent unjust discrimination, whether in favour of or against a person

The letter has identified two disciplinary complaints both initiated from two alleged conversations between myself and then Senior Sergeant Barry Day (currently Inspector ESC) in about 2003. I have never been provided a copy of the complaint or statements from Senior Sergeant Day in relation to either matter.

I believe that the three has made an error in assessment of the matters. This type of assessment has already been examined in O'Brien v Commissioner of Police by Justice Kelly and found that it was a denial of natural justice.

It appears that there is a fixed mindset in how these matters are to be assessed. Despite the fact that I have no opportunity to view or test any of the assumptions made that an assumption of guilt is being made. This is essentially a ‘Kangaroo Court’ with no real attempt to discover the truth and just continue to the lack of due process.

I will address the points in which have been identified by Assistant Commissioner Scanlon on page 4. These points are appeared to be a judgement of guilt when there has been no testing of evidence for matters in which I have not even been provided the information.

Majority of the information provided to me was in relation to another officer, Senior Sergeant Foessel, which was an marine incident investigated by Senior Sergeant Crank in 2004. All matter against me in relation to this investigation were withdrawn as there was ‘insufficient evidence’.

In fact, despite the matter being over 200 pages, only one question related to the alleged direction. I was asked by Senior Sergeant Crank, was I given a direction for Foessel not to drive the vessel solo. My answer was ‘No’. That was the entirety of the evidence contained in the over 200 pages provided. I’m unsure how it is possible to determine guilt from that single response to a single question. This is the reason the matter was dismissed against me in 2004 and yet has now been used to determine guilt appear to be unjust, considering I have no real avenue to question this NEW assessment.

Page 4 of Assistant Commissioners Scanlon’s letter contain the bellow points. I have provided my view on each point. I again argue this was the process adopted in the previous three Judicial Reviews which were all found to be lacking due process and a denial of ‘Natural Justice’

Complaint 1 - Overpayment. Points identified on Page 4 of the letter. My replies to these points are the best of my recollection, these matters occurred 20 years ago.

(italics was points from the letter, standard text is my response.)

As to the matter 2005/0097 (namely the overpayment to you):

  1. a.
    There was an overpayment made in your favour of $7,364.16
  1. –
    INCORRECT - overpayment was less than $4,000 after tax, which is what I received
  1. b.
    These were tax payers monies which you had no entitlement;
  1. –
    I paid back the full amount of $7,364.16. I did not receive tax back so effectively I paid a $3,500 extra to the QPS. I made payment arrangement as soon as overpayment was confirmed. Overpayments were so common; they were identified by the QPS Union and process included in the EBA. I spoke to Peter Stokes, HR Manager at the time and he stated that he was unaware of any other officer who had been investigated for an overpayment when it was an error made by an administration officer.
  1. –
    The administration officer was not investigated or disciplined for making the error, this was confirmed by Peter Stokes at the tie.
  1. –
    Unknown how the error occurred or why it was not identified.
  1. –
    All other previous overpayment were advised within a few months.
  1. –
    There was no on-line payment system 20 years ago. Advise was provided via internal mail.
  1. c.
    There was sufficient evidence to establish that you were aware of the overpayment by virtue of the amount of monies, and the discussion of the same with colleagues.
  1. –
    I was aware, I contact HR and advised and advised Senior Sergeant Day. My only requirement under the HR Manual is to advise the Officer in Charge. Considering Senior Sergeant Day made the complaint is proof that he was advised.
  1. –
    I also told every person working that day as I was annoyed as it happened so often.
  1. –
    The payslips were so confusing was difficult to understand. I showed ever officer on that day to try and find if there was an error. No error could be established but it seemed high so I kept the payslip in a file in case it was in fact an overpayment.
  1. –
    I had always been advised of overpayments in the past, why I wasn’t advised of this case is unknown. Why, Senior Sergeant Day did not follow up with Payroll as required was not investigated. This is a requirement under HR Manual.
  1. –
    As the time I had a line of credit home loan of around $400,000 jointly with my partner. Less than $4,000 was not a lot considering two wages and all bills come out of that account. As time went along, I forgot about the overpayment, as I was never advised it was an overpayment why would I do more then what was required by the HR manual. I had relieving over that period, overtime, my partner had suffered late term mischarges over that period which required careers leave. It was a complex pay period.
  1. d.
    You failed to take any proactive steps to notify the relevant responsible areas of QPS of the overpayment
  1. –
    INCORRECT - HR Manual provides that my responsibility was to advise my Officer in Charge, which was done (identified in Superintendent Pointing report). I also advised HR and told every officer that was working. HR did not advise it was an overpayment. It was also Officer in Charge responsibility to follow up; this was not investigated.
  1. e.
    You failed to rectify overpayment or proactively return the monies when you became aware of same
  1. –
    INCORRECT - Every report and investigation matter advise that I arranged to replay the money immediately after being made aware.
  1. –
    Reports contain an email between myself and Peter Stokes, QPS HR confirming this fact. My only delay is that I disputed that I should not pay back the tax amount of around $3,500 as I did not receive it. I was advised to pay the full amount, which I did. I regret paying the extra $3,500 to the QPS but just did what I was asked.
  1. f.
    But for the complaint filed against you, the overpayment would likely have gone undetected due to systems issues, however also due to the failure to report the same:
  1. –
    INCORRECT - matter was reported to HR and OIC.
  1. –
    I believed I was overpaid and advised all the staff of the same. Contacted HR and not being advised that I was overpaid, it is reasonable to assume that it must be correct. Please look at the payslip, it’s not easy to understand.
  1. –
    Why was the complaint made in 2005 and overpayment in 2003?
  1. –
    I do not know who made the complaint
  1. –
    I have never been provided a statement from the person who made the complaint.
  1. –
    At no time did I hide the overpayment and it was the only payslip that I kept. I’m unsure what more am I meant to do. I advise the appropriate person, required in HR Manual. I receive no response so believe it must be correct but kept the payslip in case. I paid the money back in full as soon as I was advised. It wasn’t a computerised system like today, it was 20 years ago. I could not go back and compare. You received your payslip in the internal mail. I was not going anywhere, I didn’t take the $4,000 out of the bank and leave the country. I just continued to work and be paid. The error and failing to identify the overpayment was an error of others.
  1. g.
    While you were willing to repay the monies once the overpayment was identified and subject of a complaint, that is not a matter which mitigates your liability for earlier conduct.
  1. –
    INCORRECT - I advised HR and OIC. Every other overpayment in the previous 12 years. I was advised in a month or two. I was advised of the overpayment after I was interviewed about the complaint. What else could I have done. I didn’t even know how much the overpayment was until a month after the interview for the complaint. I complied with the HR Manual and paid back more then required.  What am I liable for?  I currently work for Corrective Service, overpayments are common. No one is investigated, HR advise and you pay back or do extra hours. It is common in Qld Health and agencies with shift workers. This was a failure of HR systems. I complied with the HR Manual and did not hide the fact that I believed I was over payed. HR failed to follow up, audit failed to pick it up. How was I to know it was an overpayment.
  1. h.
    The alleged conduct was not only improper, but arguable unethical and dishonest;
  1. –
    INCORRECT - the matter was assessed by Assistant Commissioner DAVEY, South Eastern Region (2006) as at most, a breach of discipline.
  1. –
    This was an assessment on the evidence and prior my response.
  1. i.
    Your alleged conduct was sufficient to render you liable to discipline had you remained employed with the QPS.
  1. –
    INCORRECT - matter was not finalised intentionally by QPS.
  1. –
    Final recommendations were made 18 months prior to my separation.
  1. –
    The decision to delay resolution of the matter to proceed was made by QPS. I have never been provided a reason why the matters were delayed. I’m sure there are emails and file notes explaining the reasons, I have been denied access to this information.
  1. –
    I have been attempting to finalise the matter and test the evidence for the entire time. QPS made the decision to keep the matter open for 4 years investigation and not finalise.

Complaint 2 - Marine Incident matter 2005/0097 (incorrect number in the letter)

Essentially this matter involves as conversation between myself and Senior Sergeant Barry Day sometime in 2003. I was a Sergeant at the Gold Coast Water Police and Senior Sergeant Day was the OIC. I had been relieving as the OIC Gold Coast Water Police for most of 2003. Senior Sergeant Day was appointed to the position sometime late that year.

The allegation is that Senior Sergeant Day directed me to no allow Senior Constable Foessel to operate vessel AP Anderson solo. Some, nine months later, I allowed Senior Constable Foessel has a minor marine incident ($1,600 damage) in this vessel. The incident was caused as Senior Constable Foessel failed to wear the ‘cut off’ lanyard. If he had so the incident would not have occurred. A few days after the incident occurred, it appears that Senior Sergeant Day recalled this alleged direction from around nine months previous and made a complaint.

Myself and Senior Constable Foessel always denied there was a direction. Late in 2003, Senior Sergeant Day had allowed Foessel to operate the same vessel solo, some four months before the incident. I remember this specifically, as I had been rostered with him in the same vessel (AP Anderson). My partner had spotting in the morning but I went to work anyway as Indy was on and didn’t want to let anyone down. However, early in my shift my partner went to hospital and had a mischarge, she had been 12 weeks. I advised Senior Sergeant Day and he advised that Senior Constable Foessel could operate the vessel solo until other staff arrived. Senior Constable Foessel had never had a marine incident previously or after the event. Other officers had marine incident through-out my seven years at the Water Police.

Senior Constable Foessel was authorised by law and procedures to operate the vessel solo. I was the training officer a Gold Coast Water Police and had worked 80% of my shifts with Senior Constable Foessel for the four months prior (this was confirmed in statement provided by Sergeant Kelly who was the rostering officer, information provided).

There was no evidence of a direction in an email, training plan or reflected in Senior Constable Foessel performance review which were conducted by Senior Sergeant Day. Senior Constable Foessel at the time was the third most senior officer at the Gold Coast Water Police in Police service years. He was a distinguished traffic officer.

Senior Constable Foessel has since been promoted to Sergeant and Officer in Charge of Elanora, Police beat. This complaint did not prevent his promotion and yet has prevent my re-entry to the QPS for the past 10 years and I was at home as the time of the marine incident and yet my sanction is life long.

Why am I being treated differently to Sergeant Kurt Foessel. He pleaded guilty does not effect his promotion or employment. I maintain that I’m innocent and receive a life ban and my integrity assessment is an effective ban from all other Police agencies.

Matter was investigated twice. First investigation - Senior Sergeant Crank. I was charged with misconduct but all charges were dismissed due to lack of evidence. The matter was then re- investigated by Inspector Hortz. I have never been provided a copy of this investigation. I have never been charged with any matters despite this investigation being finalised 18 months prior to my separation from the QPS.

Matter identified by Assistant Commissioner Scanlon letter page 4.

  1. a.
    The investigation revealed compelling evidence of your untruthfulness to superior officers
  1. –
    INCORRECT - I denied that I was given a direction. ESC policies state that you can be charged with untruthfulness for defending yourself against an allegation. I wasn’t able to test the allegations and was denied natural justice.
  1. b.
    Your alleged conduct was sufficient to render you liable to discipline had you remained employed with QPS.
  1. –
    INCORRECT - I was never charged with any offences. To make the assessment that the matter would have been proven is a ‘denial of natural justice.’
  1. –
    The first investigation was dismissed due to lack of evidence.
  1. –
    The second investigation was likely the same.
  1. –
    There was no proof of any direction. Senior Sergeant Day provided three different statements on the matter. First, claimed a witness, Senior Sergeant Flori who provided a statement that he was not present. Second, claimed a secret tape recording, however could only provide his transcript of conversation and no tape recording.
  1. –
    I have always maintained that Senior Sergeant Day fabricated that the direction occurred. There is not even a date nominated for alleged direction. Senior Sergeant Day’s (Inspector ESC) change of versions was never subject to investigations. The fact he claimed a witness who denied being there was never investigated.
  1. QPS seem to have a fixed mindset in relation to my recruit application. I have attempted to have these matter resolved for over 15 years and all requests have been denied. QPS have made no attempt to find a solution to the matter and instead have kept matters open and greatly exaggerated the importance of each incident as a way to prevent my re-entry. I’m unsure why this is the case.
  1. I was a dedicated officer who risked my life on a number of occasions to save lives and serve the Queensland public. I can provide numerous senior QPS members who will support my application. I went on to devote 10 years to the Not-for-profit sector and responsible for the arrang funding and construction of the RSPCA Headquarters, Wacol; Mental Illness Fellowship Headquarters, Herston and disability housing projects in Norther NSW. I currently work as a Corrections Officer. My integrity has never been questioned.
  1. Can you please see it from my view. I was a Police Officer for 15 years, I have no discipline history (no finalised matters), two matters against me, I believe were fabricated. Is there anything worse than knowing you are innocent of something and not been given any avenue to test the evidence or right of appeal.
  1. The matters relate to conversation which alleged to occur over 20 years ago and were considered minor at the time. It is only since leaving the QPS that they have escalated.
  1. QPS integrity assessment has meant that I can not gain entry to any other Police Service. This has prevented my employment opportunities for the past 15 years. There are for things that I have always wished to contest but been denied an opportunity for reasons that are unclear. The failure to finalise the matters were a decision of the QPS. The fact that I was advised that the matter would be ongoing for years was the sole reason I separated. I felt I was forced out and these matters were used as a bullying tactic. For this to continue for 20 years, under any measure is unfair and unjust.
  1. Assistant Commissioner Scanlon has followed the identical procedure to that of Assistant Commissioner Pond. I have included Judicial Review 3, outline of argument as a response to why this process does not comply with the Queensland Police Administration Act (1990)
  1. If you require any further advise please contact me.
  1. As per - Consent Orders issued on 1 September 2022. Assistant Commissioner Scanlon response is required by 28 September 2022.”
  1. [47]
    On 27 September 2022, the decision-maker delivered her decision in writing. That decision relevantly provided as follows:[12]
  1. “I refer to your application to join the Queensland Police Service (QPS) as a police recruit and refer to my preliminary decision and findings of 11 May 2022. In this regard, I note that my preliminary findings and concerns were identified in the earlier preliminary decision in accordance with the decision of Justice Kelly in O'Brien v Commissioner of the Queensland Police [2021] QSC 349.
  1. I am the Assistant Commissioner Ethical Standards Command and have been requested by the Commissioner of Police to assume responsibility as the delegate decision maker to give further consideration to your recruit application and to independently determine the application according to law.
  1. I have determined that your application to be re-employed by the Queensland Police Service is to be refused for the reasons set out in my preliminary decision and as further set out below.
  1. I have had regard to the following documents in making my preliminary determination:
  1. 1.
    Police Recruitment file;
  1. 2.
    Ethical Standards records pertaining to your previous employment, including:
  1. a.
    The reports of the Assistant Commissioner, Ethical Standards Command, dated 12 May 2006 (2005/00977) and 22 May 2006 (2004/00894) recommending you proceed to discipline hearing for both matters, and that the investigations supported those recommendations;
  1. b.
    The associated internal investigations documents in relation to the two events involving yourself which led to the recommendations for disciplinary charges to be laid against your prior to your medical retirement from QPS;
  1. c.
    Your submissions provided to Assistant Commissioner Pond on 18 May 2021;
  1. 3.
    The decision of Justice Kelly in O'Brien v Commissioner of the Queensland Police [2021] QSC 349;
  1. 4.
    The decision of Assistant Commissioner Pond subject of those proceedings.
  1. I note that each of these documents have been provided to, or by, you.
  1. I have further had regard to the following additional documents provided by you following my preliminary decision, namely:
  1. 5.
    O'Brien Judicial Review – Outline of Argument 3
  1. 6.
    Show Cause Response – undated – received 4 July 2022;
  1. 7.
    Show Cause Response 2 – O'Brien (sic) – dated 13 September 2022.
  1. I have reviewed and carefully considered each of these documents, whether referenced specifically herein or otherwise.
  1. Legislative framework
  1. The decision to appoint a person as a police recruit is made pursuant to the prescribed responsibilities of the Commissioner of Police under the Public Service Administration Act 1990 (Qld)(PSAA). The decision to appoint a person to a police officer position must be undertaken in accordance with the principles of merit enunciated in section 5.2 and Part 5A of the PSAA.
  1. The information obtained by the Commissioner may be taken in account in determining a prospective appointee’s merit, as defined in section 5.2 PSAA. The provision of section 5.2(5) of the PSAA relevantly define merit for the purposes of such assessments and include:
  1. (a)
    the integrity, diligence and good conduct of the officer; and
  1. (b)
    the potential of the officer to discharge the duties of the position in question; and
  1. (c)
    the industry shown by the officer in performance of the duties of office in the course of the officer’s career; and
  1. (d)
    the physical and mental fitness of the officer to perform the duties of the position in question.
  1. I note that these considerations equally apply to the assessment of a former police officers seeking to be re-employed by the Queensland Police Service.
  1. In deciding whether to engage a person as a police recruit or to a police officer position, the Commissioner has significant latitude to obtain and all relevant information available to the Commissioner including information stored on a database kept by the Commissioner or otherwise available to the Commissioner.[13]
  1. The relevant complaint investigation files have been provided to you in full for your consideration and I am satisfied that you have been provide a reasonable opportunity to make representations about the materials.[14]
  1. In this regard, I note that at the time of the cessation of your previous employment, you were subject to two internal disciplinary investigations/processes, one of which had initially been recommended proceed to a disciplinary hearing at the level of Assistant Commissioner.
  1. It is noted that which each of these matters was initially proposed to be dealt with by an Assistant Commissioner, a subsequent review conducted by the ten Assistant Commissioner, Ethical Standards Command recommended that the matter be dealt with in conjunction with the other then outstanding discipline matter at Commissioned Officer level.
  1. Ultimately, neither matter proceeded to a final disciplinary hearing and outcome due to your absence from the workplace for health reasons and as you ultimately resigned from the QPS prior to discipline proceedings being finalised.
  1. Relevant complaints
  1. The first of these matters related to a complaint that you had disobeyed a direction (2004/00894) whereby you purported to countermand a direction issued by a superior officer and permitted a subordinate (Foessel) to operate a police vessel without supervision which resulted in an accident and significant damage to a police vessel. Further, that you engaged in dishonesty by lying to the internal investigator tasked with conducting the investigation into the alleged misconduct.
  1. While the investigation records and reports provided to you also relate to the conduct of Foessel and the outcome of that investigation, I note that the conduct of Foessel and yourself are intrinsically intertwined and the conduct of Foessel provides a necessary conduct which must be considered in assessing the complaint made against you.
  1. The second complaint relates to a significant overpayment made to you by way of payroll (2005/0097) and alleged dishonesty by failing to take remedial steps to address the overpayment without the intervention of the Queensland Police Service.
  1. While I note that you have advised that when leaving the QPS you had no intention of returning. You have recently advised as part of your application to rejoin that you have no option but to do so to clear your name and have the matters finalised to permit you to seek employment in policing in other jurisdictions. I note you have proposed an option to finalise these matters by way of the complaints being determined as ‘unsubstantiated’, and you withdrawing your application for employment.
  1. The matters subject of the complaints have been subject to full investigations and interviews undertaken with relevant parties, including yourself, at the relevant times. I note, as advised in earlier correspondence from Acting Superintendent Lowe dated 24 June 2011, the abovementioned complaints (2005/00977 and 2004/00894) are listed as finalised on 22 February 2008 and 15 May 2008 respectively.
  1. Further, as correctly identified by Acting Superintendent Lowe, amendments since your departure impose strict time limits on finalising discipline proceedings.[15] Post separation disciplinary findings are now available under Part 7A of the PSAA, that were not available at the time of you ceasing employment with QPS.
  1. Accordingly, there is no way in which I can revisit the investigation and/or findings made in relation to the investigation other than to have regard to the evidence collected at the time and available to me presently, to assess this material and make any relevant or necessary conclusions and/or inferences available from the evidence, and to consider this material in the context of submissions made by yourself in support of the application for employment.
  1. Disobey Direction and untruthfulness (2004/00894)
  1. The full circumstances of this matter are set out in the investigation materials furnished to you, and will not be restated here, other than to note, in summary, that the allegations were that:
  • On 18 April 2004, Senior Constable Foessel was the operator/master and sole occupant of QPS vessel AP Anderson;
  • You were due to supervise Foessel, however reported off duty sick;
  • Foessel was subject to a direction by the Officer in Charge of the Gold Coast Water Police that he was not permitted to operate/master the vessel AP Anderson solo due to concerns about his lack of his appropriate knowledge, skills and experience to master the vessel solo;
  • Despite this direction, on 18 April 2004 you countermanded the direction of your superior officer and, in your absence on sick leave, advised Foessel that he was permitted to take the vessel out unaccompanied despite their being another vessel available to him for which he was authorised to operate solo;
  • Foessel was later that day involved in a marine incident where he was ejected overboard form the vessel AP Anderson, following which it continued out of control and crashed into mangroves causing significant damage to the vessel and resultant expensive repairs;
  • The incident resulted in danger being caused to Foessel and members of the public fishing in the vicinity and would not have occurred had the direction of Senior Sergeant Day not been disobeyed and/or countermanded by yourself;
  • All officers interviewed as part of the investigation provided evidence which support that such a direction was given by Senior Sergeant Day, and was well known amongst all Gold Coast Water Police personnel.
  • As to your knowledge, when first discussed with you, you acknowledged awareness of the direction issued prohibiting Foessel from operating the vessel solo. However during a subsequent formal directed interview, you were untruthful in denying any knowledge of such a direction.
  • The investigation report clearly identifies your knowledge of the direction was clearly evident given that Foessel had specifically sought for you to act as intermediary on his behalf and that you were the one who advised Foessel of the Direction;
  • There is no evidence that the Direction issued by Senior Sergeant Day has been rescinded, rather the sole evidence is that you countermanded the Direction and permitted Foessel to operate the vessel solo which resulted in the concerns of Senior Sergeant Day being realised;
  • You noted that one of your roles as a supervisor was to make “executive decisions” as it relates to “operational matters”, however the decision on this occasion was in direct contrast to a direction of a superior officer.
  1. In this regard, I note the following key issues arising from your submissions:
  • You deny, and suggest that Foessel denies, that there was ever any direction issued to yourself or Foessel by Senior Sergeant Day. You note the absence of any written direction, email, training plan or performance review. You clearly continue to deny that a direction was given and effective, despite the overwhelming evidence to the contrary, namely that all personnel were aware of the direction and Foessel’s own recognition that such a direction had been given to him (albeit he appeared confused and considered the direction potentially obsolete)
  • You assert that the damage to the vessel was ‘minor’, nothing that it required $1600 in repairs to the vessel, but also appear to have no regard or insight to the potential for injury and damage to other persons, vessels and property in circumstances where Foessel had no control of the vessel;
  • You attribute the incident to Foessel’s failure to wear a cut- off lanyard. Foessel was prohibited from using solo as the OIC had determined that he lacked the requisite knowledge, skills and experience to operate safely. A fact proven by the consequent incident. Further, the investigation report revealed that while the safety lanyard may have potentially mitigated the harm to some degree (by cutting off the engine when Foessel was thrown overboard), your submissions again demonstrate no insight into the face that it was this particular vessel that Foessel was expressly excluded from using due to the lack of confidence in this ability to do so safely.
  • You note, by way of excusing your conduct, that Day approved Foessel to use the vessel on one occasion some four months prior to this incident when emergent medical reasons required you to vacate the vessel during the course of a shift. That decision was clearly within Senior Sergeant Day’s prerogative in all of the circumstances, but does not excuse your conduct in disobeying the direction, particular when there were no emergent circumstances and another vessel was available to Foessel that he was permitted to master solo;
  • Consistent with your observations at the time, in your second submission you expressly note that you had previously been the OIC of the Gold Coast Water Police for most of 2003 while Senior Sergeant Day was appointed to the position in late 2003. This, coupled with your observations about the fact you had been training the officer, worked 80% of your shifts with Foessel and your comments in your interview at the time that you had the right to make ‘executive decisions’, clearly give rise to the inference that you considered your opinion of Foessel’s ability to operate the vessel solo ahead of the direction issued by Senior Sergeant Day;
  • I reject your submission that ‘[Foessel] was authorised by law and procedures to operate the vessel solo’. While I accept that this may be correct of a civilian vessel in accordance with his civilian authorities, the duties and responsibilities on the QPS are very different to those facing civilian vessels. Further, the provisions of section 4.9 confer upon the Commissioner (and the Commissioner’s delegates) power to issue directions, orally and in writing, general or particular as are necessary for the efficient and proper functioning of the Service. All members of the Service to whom such a direction is issued must comply in all respects with the Direction. Accordingly, the Commissioner’s delegate, namely Senior Sergeant Day, was entitled to issue such directions as he considered necessary relating to the use of a QPS vessel or other property, and all members of staff, Foessel and yourself included, were statutorily obliged to comply. Accordingly, the direction to Foessel to not operate the vessel solo, means that Foessel was not lawfully permitted to do so.
  • While you submit, and I accept, that you have never been charged with matters arising form this incident, I note that the recommendations were that you be charged with two discipline charges, namely disobeying a lawful direction of a superior officer and dishonesty in the record of interview. But for your resignation from the QPS, I am satisfied that there was sufficient evidence to support these discipline charges;
  • I maintain my preliminary view that the investigation revealed compelling evidence of your untruthfulness to superior officers. The evidence obtained from all witnesses interviewed as part of the investigation, were clear that all personnel of the Gold Coast Water Police were clear that Foessel was not to operate the QPS vessel AP Anderson solo. As the training officer, and the person who worked 80% of your shifts with Foessel, I cannot accept that you were not aware of a direction known by all others in the workplace.
  • I reject your assertion that any assessment I make that the matter would likely have been proven is a denial of natural justice. I note in this regard that you have been provided with an opportunity to be interviewed relating to the matter involving the failure to comply with a lawful direction and were given an opportunity to be interviewed in that regard. Further, you have been provided with an appropriate opportunity here to provide any relevant submissions to counter the evidence collated. I have had regard to the submissions you have made and weighed this against the overwhelming evidence and I concluded that it is open to me to find that you were aware of the direction and wilfully disobeyed, or countermanded, it.
  1. Overpayment (2005/00977)
  1. The full circumstances of this matter are set out in the investigation materials furnished to you, and will not be restated here, other than to note, in summary, that the allegations were that:
  • Advice was received on 20 April 2005 that you had received an overpayment by virtue of an error made within Human Resource Management Branch of approximately $9,069.69 as set out in your pay advice for the fortnight ending 14 November 2003.
  • This was subsequently confirmed by Ms Josephine Maguire, Personnel Officer, Payroll which subsequently revised the amount and confirmed that you had received an overpayment of $7365.16.
  • The overpayment was apparently undetected by QPS payroll, however was reportedly subject of numerous conversations within the workplace.
  • When interviewed, you indicated that you were aware that the monies were a potential overpayment when you received it, acknowledging that no other pay came close to the $11,108 received that fortnight.
  • When interviewed, you identified that when you had not heard anything from the QPS about the overpayment, other than contacting an unidentified person in HR, you took no steps to address the issue of the overpayment. You further identified that during December 2003 you partner suffered a miscarriage and you forgot about the significant overpayment;
  • Despite this, you expressly noted the monies were deposited into a joint account implying that you did not detect it, albeit you acknowledged that you had received and noted the overpayment when you opened the payslip reflecting the overpayment when it occurred in November 2003;
  • Numerous staff at the Gold Coast Water Police recalling having conversation with you in, or about November 2003, whereby you were described as being ‘excited’ about having received a significant overpayment. When investigators identified each of these persons present, you immediately claimed these officers were bias as having made previous complaints against you and described their versions as being tainted with bias in an attempt to discredit them, before learning that they confirmed there had been no discussion about a refusal to repay the monies.
  • Despite this, you claimed in a record in interview conducted in relation to the complaint that you only became aware of the investigation into the matter in May/June 2005.
  • only after the matter was brought to attention, and disciplinary investigations/processes commenced, only then were efforts undertaken to repay the monies at the rate of $100 per fortnight on a fortnightly basis commencing on 17 October 2005 (almost two years after the overpayment occurred).
  • I note that despite the above, when confronted to repay the overpaid monies, in an email exchange in October 2005, you demanded proof from Mr Peter Stokes of Partner One (Shared Services) of the overpayment and that repayments not commence until it was proven to be an overpayment, despite earlier acknowledging to your colleagues that you had received a significant overpayment;
  • While the repayment plan was purportedly entered into in accordance with the Enterprise Bargaining Agreement, on this rate the repayments would take almost 74 fortnights (almost 3 years) to repay, during which time you would continue to receive the benefit of these funds. Note: While I am not privy to the circumstances as to how this arrangement was entered (other than the emails discussing and concluding same), the EB providing that repayments were to be at the fortnightly rate of 10% of the net overpayment of $100, whichever is greater (clause 7.5(4)(b)).
  • As noted by then Superintendent Pointing, the then Human Resource Manual places responsibilities on individual members of staff to ensure the accuracy of their payslips and to ensure that any relevant amendments are made in a timely manner. This is also reflected in the then EB which relevantly provided that QPS would enable staff to notify QPS of any potential overpayments not otherwise detected (clause 7.5(2)(a));
  • Superintendent Pointing recommended that this matter be dealt with at Assistant Commissioner officer level, while Acting Assistant Commissioner Davey disagreed citing the fact that there was no admission of knowledge of the overpayment, and that the monies had not been withdrawn or used for significant purchases.
  • Despite these observations of AAC Davey, it is noted that you had the benefit of the offset of a significant amount of taxpayers monies in a personal account for a significant period of time which would have no doubt resulted in financial advantage to yourself and your partner;
  • It is note that the overpayment had not been detected, previous overpayments had occurred and that the QPS finance section had significant issues with errors at the relevant time.
  1. In this regard, I note the following key issues arising from your submissions:
  1. You disagree that the amount of overpayment of $7364.16 and seek to reduce this figure to just over $4,000 after tax, however I note that the overpayment amounts are as paid to you and the financial (tax) implications of the same are set out in the email correspondence of Mr Stokes dated 27 October 2005 which notes the tax benefits you would otherwise receive and confirming the overpayment was $7365.16;
  1. As noted in my preliminary findings, there is sufficient evidence to establish that you were aware of the overpayment by virtue of the amount of monies, and had discussion about the same with your colleagues.
  1. I reject that your only requirement under the HR Manual was to advise the OIC and take no further action. For the reasons set out above, the Human Resource Manual and the EB, it was the responsibility of yourself to identify, notify and manage the repayment of the overpayment. Your submissions further appear to fail to demonstrate any insight or remorse for your actions or omissions, rather you defer responsibility to Senior Sergeant Day and question why he didn’t follow it up or investigate the matter.
  1. I do not consider that waiting a few months to see if payroll identify the discrepancy, purportedly discussing the matter with an unidentified HR person months later and then taking no further action until challenged to repay the monies is adequate and consistent with the expectations of a police officer.
  1. Further, I note that despite your acknowledgement at the earliest outset that you had been overpaid a significant amount of monies, more than ever previously and an amount completely inconsistent with previous pay periods, you claim you forgot about the repayment and in your second submission question why you would do more than the HR manual required. You further ask, what else could I have done. The fact that you continue to pose these question demonstrates an ongoing lack of insight and/or remorse on your behalf, and a general lack of understanding of the attributes and qualities expected of police officers by the QPS, and more importantly the community;
  1. I note your submissions fail to accept responsibility for your conduct and omissions, namely you attempt to minimise the amounts disputed and suggest that you simply disputed that you should have to repay the tax amounts. This is wholly inconsistent with the email exchange between yourself and Mr Stokes. Upon my review of this email exchange, there is no express or implied limitation to the tax amount, rather the email exchange is expressly clear that you demand proof of any overpayment and refuse to repay any monies until any overpayment is proven to your satisfaction.
  1. Decision
  1. I acknowledge that no disciplinary hearings were ultimately convened, and the disciplinary charges were never resolved prior to your medical retirement from the Queensland Police Service. Despite this, as advised in my preliminary findings I concur with the views of Assistant Commissioner Pond, namely that your conduct as identified during the internal investigations remains relevant to my assessment of your merit as a police recruit, despite the passage of time.
  1. Despite the disciplinary proceedings not proceeding due to your separation form the QPS prior to finalisation of these matters, and noting that even the original recommendations that these matter be dealt with by an Assistant Commissioner who could not impose the ultimate sanction of dismissal, I am satisfied that your conduct, through your acts and omissions, are highly relevant to the assessment of whether you are suitable to be re-employed as a police officer.
  1. Part 5AA of the PSAA is expressed with sufficient latitude to provide the Commissioner with a largely unfettered discretion to consider all relevant material pertaining to the assessment of a person’s suitability to be appointed as a police officer. Any allegations concerning your past conduct, or matters which may affect your honesty or integrity, are clearly matters within scope when assessing merit.
  1. There is no time limitation expressly or implied and while I note there has been a significant passage of time since the conduct and/or omissions giving rise to grounds for discipline above, the passage of time is not in and of itself sufficient to diminish the seriousness of the conduct. This is particularly so in circumstances where the passage of time has not assisted in the relevant party developing insight into the impact of their conduct or omissions.
  1. As noted in Aldrich v Ross,[16] the Court of Appeal cited comments by Chesterman J who stated:
  1. “The [Commissioners of Police] have the important and difficult task of managing a large institution whose officers play an important part in society and who are given substantial powers and responsibilities for their task. They must be kept honest, efficient and conscientious.”
  1. While in Police Service Board v Morris,[17] Brennan J stated:
  1. “The effectiveness of the police in protecting the community rests heavily upon the communit y’s confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers.”
  1. I note, and acknowledge, that you have had an extensive service history with the QPS, and have been assessed as being otherwise assessed as having suitability to be employed by the QPS. However, your length of service leaves me no doubt that you would have a clear understanding and awareness of organisational expectations, standards and the Service’s values regarding your conduct.
  1. I am satisfied that the matters for which you were subject to discipline investigations are very serious actions which would greatly concern the public, and jeopardise their confidence in the Service, which they should be able to trust as acting to protect them in a lawful way. The Service must strive the be the best police service it can be for our community.
  1. I do not consider members of the community would have confidence in the Service if a police officer who conducted themselves in the manner you have, were permitted to return to serve as a member of the Service particularly in the absence of appropriate levels of remorse, contrition and perhaps most importantly insight into their conduct and the effect that such conduct may have on community confidence.
  1. While I acknowledge your submissions about the impact these matters have had on your career post QPS, it is a settled matter in discipline law that an individual’s personal circumstances should not be put ahead of the needs of the public and the Service.[18] Community confidence is of the utmost importance in the Service as, without it, our effectiveness in serving and protecting the community would be impaired. Public interest considerations and maintaining community confidence in the Service must outweigh your personal employment interests.
  1. I am satisfied, based on the material before me, that your conduct was improper and unbecoming of a police officer. The conduct falls well below the standards of ethical behaviour, honesty and integrity expected of employees by the QPS and perhaps more importantly, below the standards expected of police officer by the community (whether applied at the time or presently).
  1. The obligation of an employee to comply with lawful and reasonable directions is deeply embedded in every employment relationship. It is a fundamental requirement, and any breach of that requirement is liable to shatter the trust required to sustain the employment relationship.[19]
  1. Your failure to comply with a direction issued to protect the safety and wellbeing of QPS employees, as well as the general public, is a serious concern. The fact that your submissions failed to demonstrate that you have taken responsibility for your conduct, and perhaps more importantly lack semblance of insight or remorse into the actual and potential consequences of your behaviour, demonstrate that you lack the relevant honesty and integrity to be re- employed as a police officer.
  1. As to your honesty and integrity, I note you continue to maintain that you had no knowledge of the direction, despite overwhelming evidence to the contrary. Despite this, I am satisfied that there is overwhelming evidence that all staff of the Gold Coast Water Police were aware of the direction. I find it disingenuous, at best deceitful at worst, to suggest that as the training officer and predominant work colleague of Foessel that you were not aware of the direction.
  1. As noted in my preliminary findings, the maintenance of discipline command and control within the QPS is premised on all members complying with all lawful and reasonable directions of senior officers. Public confidence in the administration of the Queensland Police Service includes members of the public being assured those administering that Service do not allow persons who have engaged in serious misconduct, wilful dishonesty and otherwise unethical behaviour to continue to be employed, or engaged by, the Police Service.
  1. In coming to my final decision, I further note that there are a number of other discrepancies (identified above) in the versions have provided regarding both incidents that do not accord with clear evidence to the contrary which demonstrate that you have been less than full and frank, and arguably dishonest, in your responses to the investigation.
  1. This dishonest conduct is further exemplified in your acts and omissions in relation to the overpayment. I am satisfied that you were aware of the overpayment at the time it was made. Despite this, you failed to take appropriate steps to remedy the overpayment and take no responsibility for failing to do so. To the contrary, you defer responsibility to a superior officer.
  1. Whether you intended to repay the monies or not, it is clear that no efforts were taken to ensure that significant taxpayers monies that had been paid to you in error, were returned post haste. To the contrary, I find that but for the QPS following up the overpayment upon receipt of the complaint, you would not have taken any further steps to remedy the overpayment.
  1. While I note that reliance is placed upon the industrial agreement as to repaying the monies, this issue could have been rectified immediately by diligent conduct on your behalf to identify and return the overpayment. To the contrary, it took a number of years to remedy the situation and then sought to challenge the amounts overpaid. In the interim you retained the benefit of taxpayer funds, paid to you in error, for a further extended period of time.
  1. Given your submissions, I am not satisfied that you presently comprehend the gravity of the consequences of your conduct, whether through acts of omissions, in these matters. I am not satisfied that you realise the importance of honesty and integrity in maintaining community confidence and have the requisite insight into  the  consequence  of  your  behaviour  on  the  community’s confidence in the police service. Further, I note at the relevant times you were a Sergeant of Police and thereby had a responsibility to model appropriate behaviour to less senior officers.
  1. As community expectations underpin public confidence in the police service, namely that all police officers will fulfill their statutory obligations ethically and effectively in accordance with standing directions and policies, the community expects that police recruits will be individuals who demonstrate the highest standards of honesty and integrity. Given the above findings and conclusions, I am not satisfied that you are presently suitable to be re-employed as a police officer.
  1. As to your observations about the preliminary findings being tantamount to a permanent bar on your future employment with QPS, no such barrier exists. The findings in this decision are limited to your circumstances as they exist presently and any future application will be dealt with on its own merits at that time.
  1. ...”
  1. Ground 1: Breaches of the rules of natural justice (s 20(2)(a) of the JR Act)
  1. Introduction
  1. [48]
    As referred to previously, there were three grounds of review which were pressed by Mr O'Brien. I will consider these in the order in which they were argued. I should note that the first ground, being alleged breaches of the rules of natural justice, is necessarily intertwined with the second ground, namely that the procedures that were required by law were not observed. The procedures referred to in the second ground are those contained in ss 5.2(2) and 5AA.12(1) of the PSA Act, which have been previously set out in these reasons. Those provisions must necessarily be taken into account when considering whether there were breaches of the rules of natural justice in the current case.
  1. Principles of natural justice
  1. [49]
    As has often been recognised, the principles of natural justice are neither rigid nor technical. What will be required by the principles of natural justice in a given case will depend on the circumstances of that individual case, the nature of the inquiry under consideration, the rules under which the decision-maker is acting and the subject matter that is being dealt with.[20]
  1. [50]
    In Kioa v West, Mason J expressed this proposition in the following way:[21]
  1. “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, 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?” (Footnotes omitted).
  1. [51]
    Here, the decision-making process exists in a particular statutory setting. Section 5.2(2) of the PSA Act provides that the decision must be made by fair and equitable procedures. Those procedures are to include selection on the basis of the merit of applicants.
  1. [52]
    Section 5AA.12(1) of the PSA Act provides that if, because of information relied upon by the Commissioner, the Commissioner considers a person may not be suitable to be engaged by the Service, the Commissioner must do three things before finally deciding the person is not suitable. They are as follows:
  1. (a)
    first, the Commissioner must disclose the information to the person.
  1. (b)
    secondly, the Commissioner is required to give reasons why the Commissioner considers the person may not be suitable to be engaged by the Service;[22] and
  1. (c)
    thirdly, the Commissioner must allow the person a reasonable opportunity to make representations to the Commissioner about the information and to provide any material it wishes in support of the representations.
  1. [53]
    If the Commissioner then decides that the person is not suitable to be engaged by the Service, the Commissioner must give the person a written notice, stating that the person is not suitable to be engaged by the Service.
  1. [54]
    It should be noted that the obligation to give reasons under s 5AA.12(1) of the PSA Act is not an obligation to give reasons in respect of the final decision. It is a mechanism to provide a sufficient level of notice to an applicant of the substance of the suitability concerns so as to allow the applicant a reasonable opportunity to make representations about perceived potential unsuitability and to provide any relevant material on that issue. The PSA Act, at this preliminary point in the decision-making process, is not setting out a requirement for written reasons for the final decision. As a result, s 27B of the Acts Interpretation Act 1954 is not engaged.
  1. [55]
    Neither party submitted that s 5AA.12(1) of the PSA Act was a code which otherwise curtailed the further operation of the principles of natural justice. Clear words or a compelling statutory implication would be needed to exclude wider consideration of the principles of natural justice.
  1. How Mr O'Brien presented his breach of natural justice contentions
  1. [56]
    Mr O'Brien is a self-represented litigant. He relied upon two lengthy sets of written submissions, and he also made oral submissions. Those three forms of submissions were not always consistent or clear, and were sometimes repetitive in their content. That is not a criticism of Mr O'Brien, as he is not expected to have conducted his case as someone seasoned in court appearances.
  1. [57]
    Nonetheless, I mention this in order to explain the structure of these reasons. I have sought to summarise the general content of related contentions which have been made by Mr O'Brien. Those summaries are organised under individual sub- headings. After summarising the contentions under a particular sub-heading, I will then deal with those discrete contentions before moving on to the next summarising contentions. Given the way the submissions were delivered, there will be some repetition of content under the various headings.
  1. First natural justice contention: failure to conduct the decision as a disciplinary hearing
  1. [58]
    The first contention was to the effect that the process adopted by the decision-maker was that of a quasi-disciplinary hearing without the process of a disciplinary hearing. It was submitted that the decision-maker was acting as an investigator, prosecutor and judge, and that this combination of roles resulted in a denial of natural justice. Mr O'Brien submitted that he had no opportunity to be heard, to challenge the evidence, to be represented, or to have a right of appeal. He referred to the decision-making process as a ‘Kangaroo Court’. It was further submitted that the decision-maker was not only deciding guilt but also allocating a hypothetical penalty, coupled with the passing of time not being a mitigating factor.
  1. [59]
    As part of the contention, Mr O'Brien referred in his written submissions to certain extrinsic materials which related to amendments to the PSA Act which had been made in 2019 in respect of disciplinary procedures.[23]
  1. [60]
    Three aspects of that extrinsic material were highlighted by Mr O'Brien.
  1. [61]
    officer a right to be heard before any decision was made by a prescribed officer about a complaint, and before that prescribed officer imposed any sanction.
  1. [62]
    The second aspect was that the new s 7.43 of the PSA Act introduced a central unit that was responsible for conducting disciplinary proceedings. That unit was to be separate and distinct from the unit involved in investigating the complaint.
  1. [63]
    The third aspect was that there was an introduction of time limits within which disciplinary proceedings could be commenced.
  1. Determination of the first contention
  1. [64]
    I do not accept that this first contention demonstrates that a denial of natural justice occurred in the decision-making process in issue here.
  1. [65]
    The decision to appoint a person as a police recruit is a different and distinct decision from a decision made in disciplinary proceedings. That distinction is a relevant one. The former decision is not regulating an existing officer’s conduct within his service. It is concerned with a decision which is made at a stage where an applicant is not within the service. It is concerned with whether that applicant should be allowed to enter the service at a recruit level.
  1. [66]
    Secondly, the decision as to whether an applicant is to be accepted as a recruit has a series of specific statutory provisions applicable to it which are quite separate from the disciplinary hearing provisions. Section 5AA.11(2) of the PSA Act allows for the decision-maker to have regard to all “relevant information” available. The definition of “relevant information” contained in s 1.4 and the attached Schedule to the PSA Act provides for very broad sources of information. These include, for the purposes of the current proceeding, any information in a QPS database about, inter alia, any complaints involving Mr O'Brien[24] and any information about Mr O'Brien obtained as a result of inquiries made by the Ethical Standards Command.[25]
  1. [67]
    As referred to above, s 5AA.12(1) of the PSA Act imposes certain preliminary mandatory requirements on the decision-maker when considering whether Mr O'Brien is suitable to be engaged as a recruit.
  1. [68]
    In contrast, disciplinary decisions are specifically dealt with in Part 7 of the PSA Act. They involve, inter alia, the following features:
  1. (a)
    a statutory identification of the main purposes which underlay disciplinary proceedings, see s 7.1;
  1. (b)
    requirements for starting disciplinary proceedings, see s 7.11;
  1. (c)
    specified time limits for starting disciplinary proceedings, see s 7.12;
  1. (d)
    an abbreviated disciplinary process as an alternative to a disciplinary proceeding, see ss 7.15 to 7.25;
  1. (e)
    a process for the commencing of disciplinary proceedings by the provision of a notice stating particulars of the alleged ground for disciplinary action, and then allowing not less than 28 days for the receipt of written submissions and other materials from the officer the subject of the proceeding, see s 7.25;
  1. (f)
    a requirement for the decision-maker to consider the written submissions and material so supplied, and to then decide if the matter is proven, see ss 7.26 and 7.27;
  1. (g)
    a broadly similar process to that referred to in (f) above for the purpose of then deciding on what, if any, sanction should then be imposed if the conduct has been proven, see ss 7.28 to 7.29;
  1. (h)
    requirements for QCAT notices to be provided for adverse decisions concerning both the proof of the conduct and the impositions of sanctions, see s 7.31.
  1. [69]
    The main purposes of disciplinary proceedings identified in s 7.1 of the PSA Act are in respect of the regulation of the conduct of officers whilst they are serving. They include providing for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers. Further, they seek to ensure appropriate standards of discipline are maintained within the service to protect the public, uphold ethical standards within the service, and to promote and maintain public confidence and officers’ confidence in the service.
  1. [70]
    Section 7.32 of the PSA Act provides that when conducting disciplinary proceedings:
  1. (a)
    the rules of natural justice must be observed;
  1. (b)
    the decision-maker must act quickly, and with as little formality and technicality as is consistent with the fair and proper consideration of the matters before the decision-maker;
  1. (c)
    the decision-maker is not bound by the rules of evidence; and
  1. (d)
    the decision-maker is also authorised to get information on a matter in a way that the decision-maker considers appropriate, and to then decide the procedure to be followed for the proceeding, subject to any guidelines made under s 7.44 of the PSA Act.
  1. [71]
    There is a wide variety of powers in relation to sanctions which may be imposed. At the top of the spectrum of sanctions is a dismissal, but ss 7.34 and 7.35 of the PSA Act provide for cascading forms of other potential sanctions of reducing severity.
  1. [72]
    Finally, s 7.43 of the PSA Act provides for the establishment of a central disciplinary unit which is to be separate and distinct from the unit involved in the investigating of the complaint.
  1. [73]
    Disciplinary proceedings, and the decisions which flow from them, are separate to and serve different purposes to decisions which are to be made concerning whether an applicant should be accepted as a recruit.
  1. [74]
    It is incorrect to seek to transpose what may be an appropriate width of natural justice requirements for a disciplinary proceeding to the process of making a decision to accept a stranger to the police service as a recruit.
  1. [75]
    The dichotomy between these two separate types of decisions has long been recognised and acknowledged in the case law.
  1. [76]
    The decision of O'Rourke v Miller (1985) 156 CLR 342 involved a consideration by the High Court in relation to the termination of a probationary constable under the Police Regulation Act 1958 (Vic) and the associated Police Regulations 1979 (Vic).
  1. [77]
    The facts of that case may be briefly stated. The probationary officer, with another officer, were said to have approached two young women who were closing up a shop on a particular evening. The probationary officer was said to have misused his police authority to gain entry to the shop, had then used obscene and insulting language to the two women (both of whom were strangers to him), had acted aggressively, and had generally been guilty of drunken behaviour. The probationary officer gave a written record of interview where he denied he had been guilty of any improper conduct. He said he had approached the two women to ask them to join him for a drink and admitted that he had shown them his police authority. The other officer was also the subject of an interview and supported the probationary officer’s denial that he had been guilty of any misconduct. The two young women had given statements.
  1. [78]
    During the relevant investigatory process, the appellant said that he wanted the opportunity to refute the allegations which had been made against him by the two women.
  1. [79]
    He was then told that there was a recommendation that he would be terminated. He was also told of the subject matter of the complaint which supported that proposed termination.
  1. [80]
    The probationary officer then requested to be charged before the Disciplinary Board so that the women would have to go into the witness box and it would be the probationary officer and the other officer’s words against that of the two women, and he contended that he would get the benefit of the doubt. The Commissioner decided to terminate the probationary officer pursuant to regulation 212 of the Police Regulations. No disciplinary proceedings were brought.
  1. [81]
    On the issue of natural justice, and particularly in respect of the complaint by the probationary officer that he should have been given the opportunity to cross- examine, or at the very least, confront the two women who had made the complaints, Gibbs CJ, with whom Mason J and Dawson J agreed, stated as follows:[26]

“…when it is alleged that such a person has been guilty of some misconduct which may warrant refusal of confirmation of his appointment, he is entitled to be dealt with in accordance with the rules of natural justice. As the two cases which I have cited show, he must be informed of what is alleged against him and given a fair opportunity to answer those allegations. However, in the present case the appellant was told quite fully what was alleged against him and he was given a full and fair opportunity to state his defence or explanation.

It was submitted that the appellant should have been given an opportunity to cross-examine, or at the very least, to confront, the two girls who made the complaints. In support of these submissions we were referred to Barrier Reef Broadcasting Corporation Pty Ltd v. Staley (1978) 52 ALJR 493; 19 ALR 425 and R. v. Hull Visitors; Ex p. St Germain [1979] 1 WLR 1401; [1979] 3 All ER 545. Those were cases in which there was a hearing before a tribunal which refused to allow the cross-examination of person who in the one case had given evidence and in the other had made hearsay statements and the decisions depended, as all cases of this kind do, on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal was acting and the subject matter being dealt with: see Russell v. Duke of Norfolk [1949] 1 All ER 109 at 118. Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses: see National Companies and Securities Commission v. The News Corporation Ltd (1984) 58 ALJR 308; 52 ALR 417. Natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances.

In the present case the Chief Commissioner was not required to hold a formal hearing or to be satisfied beyond reasonable doubt that the appellant had been guilty of the misconduct alleged before he reached a decision to terminate the appellant’s provisional appointment. It would be enough if the Chief Commissioner, having given the appellant a fair opportunity to be heard, considered in good faith that the appellant was not fit to occupy the office of constable or that there was a real doubt about his suitability. If in fact the appellant had been charged before the Police Discipline Board and that Board had given him the benefit of the doubt because it was faced with a conflict of testimony between the two girls and the two policemen, it would still have been open to the Chief Commissioner to terminate the appellant’s appointment. It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the police force and the system of probationary appointments is one means of achieving that end. The Chief Commissioner, in exercising his power under reg 212 to terminate the appointment of a probationary constable, has, to use the words of Murphy J. in the Full Court of the Supreme Court, “not only the power but also the responsibility to weed out persons concerning whom he entertains any reasonable doubts”.

In the circumstances of the present case it was by no means unfair for the Chief Commissioner to make his decision without allowing the appellant to confront or to cross-examine the two girls. No reason had been suggested why the girls, perfect strangers to the appellant, should have concocted their story, and some of the statements made by the appellant himself lent some credence to that story. There was no lack of fairness in the process followed by the Chief Commissioner in the present case and no failure to observe the principles of natural justice.”

  1. [82]
    Thirdly, the submission that the decision-maker is acting as a “Kangaroo Court” by being the investigator, prosecutor and judge, ought to be rejected. The relevant statutory provisions allow the decision-maker to inform herself of the relevant information in order to make a decision as to whether to accept an applicant as a recruit. In making the decision, the decision-maker must act fairly and equitably. However, that requirement and the larger considerations of natural justice do not dictate that the decision-maker is required to provide an oral hearing process or allow for the cross-examination of persons who are the sources of the information which she has relied upon. Natural justice in a given case will look to the circumstances of the case, the nature of the inquiry, the rules under which the decision-maker is acting and the subject matter being dealt with.
  1. [83]
    In the present case, I am satisfied that the principles of natural justice do not require there to have been an oral hearing or cross-examination of persons who were the sources of the information relied upon.
  1. [84]
    In this case, s 5AA.12 of the PSA Act requires the disclosure of information to Mr O'Brien where it relates to potential unsuitability, as well as the provision of reasons as to why the decision-maker considers Mr O'Brien may be unsuitable in light of that information. Both of those requirements are to inform Mr O'Brien, in a fair way, of the conclusions which have been found on a preliminary basis. By these mechanisms, Mr O'Brien is then able to make written submissions and provide material to the decision-maker about the preliminary unsuitability concerns.
  1. [85]
    The PSA Act does not expressly mandate that there is to be an oral hearing, nor does it expressly mandate that there is a right to cross-examination. I do not suggest that the absence of those provisions curtail what might otherwise be required by the principles of natural justice, but I relevantly observe that the PSA Act does not expressly dictate that these matters are to occur.
  1. [86]
    As was recognised in O'Rourke v Miller, the rules of natural justice do not, as a general proposition, inevitably require an oral hearing or a right to cross- examination. What is required is fairness in all the circumstances.[27]
  1. [87]
    Here, the material before the decision-maker included transcripts of interviews of a number of persons which occurred in the period from 2003 to 2006, as well as witness statements. All of the interviews were carried out by an investigatory officer who had conducted them in an inquisitorial fashion. These interviews were carried out within three years of the relevant events about which they were concerned. In that respect, they were relatively contemporaneous with events and were significantly closer in time to the events in question than the time when this decision was made, being 2022.
  1. [88]
    The interviews for the Marine Incident included two separate interviews of Mr O'Brien. As part of the interviewing process, Mr O'Brien was allowed to (and did) make his own submissions and was allowed to produce any documentary evidence he wished in order to support his case.
  1. [89]
    The interviews for the Overpayment Incident included an interview of Mr O'Brien in 2006. Mr O'Brien had been accompanied by a representative from the Queensland Police Union of Employees on that occasion, a Sergeant Axel Phufl. Mr O'Brien was allowed to (and did) make his own submissions and was allowed to produce any documentary evidence he wished in order to support his cause. Mr O'Brien’s Union representative also made oral submissions as part of the process.
  1. [90]
    All of that material was before the decision-maker in this instance.
  1. [91]
    In this case, the decision-maker had the ability to have regard to this material gathered on occasions relatively close in time to the events in question. Those circumstances support that it was neither unfair nor unjust for the decision-making to have proceeded without an oral hearing or cross-examination of persons.
  1. [92]
    The nature of the present decision concerns whether a person (in this instance, Mr O'Brien) should be allowed to enter the QPS as a recruit. It is not dealing with the disciplinary sanctioning of somebody who is already in the Service. Whilst it is appropriate that potential recruits be given the information and reasons as to why a preliminary view may be formed as to unsuitability, and that they then be given an opportunity to make responses to the concerns by submissions and material, it is not generally appropriate that the process of decision-making for the admission of recruits be undertaken by way of some adversarial trial process. Mr O'Brien was not being punished as part of some quasi-disciplinary process. Such a submission misconstrues the nature of the decision.
  1. Second natural justice contention: adequacy of notice of the conduct
  1. [93]
    This contention coincides with submissions which were made by Mr O'Brien in respect of the statutory process contained in s 5AA.12(1)-(3) of the PSA Act not being met.
  1. [94]
    Mr O'Brien submitted that the Preliminary Decision Letter of 8 June 2022, which constituted the reasons required under s 5AA.12(3) of the PSA Act, did not provide sufficient notice of the evidence or particulars of the conduct relied upon to support what he referred to as “merely statements about a hypothetical outcome”.
  1. [95]
    Mr O'Brien submitted that the process which had been adopted in the Preliminary Decision Letter of 8 June 2022 was identical to the process which had been followed in the previous Preliminary Decision Letter of 14 May 2021. The Preliminary Decision Letter of 14 May 2021 had constituted the s 5AA.12(3) reasons which were examined by Kelly J in respect of the third decision which was set aside by this Court.
  1. [96]
    Despite having made that last submission, Mr O'Brien then submitted that the Preliminary Decision Letter of 8 June 2022 had gone a step further in the denial of natural justice than the previous Preliminary Decision Letter of 14 May 2021. The effect of this submission was that the Preliminary Decision Letter of 8 June 2022 represented the decision-maker taking on a role of reopening a finalised investigation and inserting “new findings” where previously no findings had been made.
  1. [97]
    As part of this contention, Mr O’Brien submitted that the language of the Preliminary Decision Letter of 8 June 2022 clearly indicated that the decision- maker had inserted her own factual findings and set aside the prior assessments which had been made by Assistant Commissioner Davey in 2006.
  1. Resolution of the second contention
  1. [98]
    This second contention does not give rise to a denial of natural justice in the decision-making process.
  1. [99]
    First, to the extent that the contention was that the process adopted in the Preliminary Decision Letter of 8 June 2022 was identical to the decision process identified in the Preliminary Decision Letter of 14 May 2021, I reject that submission.
  1. [100]
    His Honour Justice Kelly declared the relevant third decision to be void by finding, inter alia, that viewed in its entirety, the previous decision-making process had not afforded procedural fairness to Mr O'Brien. The relevant deficits of that former decision-making process were specifically identified at paragraph [46] of O'Brien v Commissioner of Queensland Police [2021] QSC 349. They may be briefly summarised as follows:
  1. the Preliminary Decision Letter of 14 May 2021 had generically spoken of “the information outlined” in two prior investigatory memoranda;
  2. to the extent the decision was said to arise out of the decision-maker’s preliminary concerns relating to integrity, diligence and good conduct, the reasons for those concerns were not otherwise articulated or particularised;
  3. the Preliminary Decision Letter of 14 May 2021 then identified two specific matters of concern, one being recommendations to proceed to a disciplinary hearing for the Overpayment and the Marine Incident, and the second being that the investigations, at the time, supported those recommendations;
  4. His Honour Justice Kelly observed that the reason why those two matters were said to be specifically of concern was not identified;
  5. the recommendations which were referred to were of recommendations to proceed to a disciplinary hearing before officers of a certain level which, as a result of their lower position in the hierarchy of the Service, meant that such disciplinary hearings could not have resulted in a sanction of dismissal of Mr O'Brien from the police force;
  6. in those circumstances, Kelly J found it was incumbent upon the decision- maker to explain why her concerns could be reconciled with recommendations which implicitly contemplated that Mr O'Brien was a fit and proper person to remain as a member of the Service;
  7. importantly, the third decision (being the decision which was set aside) specified the decision-maker’s concerns in regard to the particular allegations made during the investigation concerning the Marine Incident and the Overpayment Incident, namely that Mr O'Brien was alleged to have countermanded a direction of the Officer-in-Charge, had been incompetent and negligent in the discharge of his duty, had been untruthful during the investigation, and in relation to the Overpayment Incident, that Mr O'Brien had not exhibited ethical behaviour expected of an officer of his experience;
  1. His Honour Justice Kelly observed that those concerns in the third decision (as summarised in (g) above) should have been specified in the Preliminary Decision Letter of 14 May 2021 (and were not), so as to provide Mr O'Brien with fair notice of the decision-maker’s concerns about his integrity, diligence and good conduct;
  2. the preliminary decision letter of 14 May 2021 had only spoken of the information “as having raised preliminary concerns” as to Mr O'Brien’s integrity, diligence and good conduct, whereas the final third decision proceeded on the basis that “the information” constituted or evidenced “findings against the applicant”;
  3. given that the third decision in truth had proceeded on the basis of “findings” against Mr O'Brien, the Preliminary Decision Letter of 14 May 2021 had not indicated or revealed that the decision-maker was intending to proceed on that basis, and as a consequence Mr O'Brien’s written representations in response to the 14 May 2021 letter had never addressed the alleged findings;
  4. the third decision had proceeded on the basis that there were findings from the initial investigations into Mr O'Brien’s behaviour which the decision- maker took into account;
  5. where there had been no disciplinary hearing, the decision-maker, in proceeding on the basis that there had been findings about Mr O'Brien’s conduct in the investigatory phase, he had thereby proceeded on a basis for the decision which was not obviously open on the information;
  6. in the circumstances of paragraph (l) above, the decision-maker should have revealed this non-obvious proposed basis of decision-making to Mr O'Brien, so as to provide him with an opportunity to respond to her proposed conclusions that findings had been made which she was obliged to “weigh” in her decision.
  1. [101]
    The decision-making process in the Preliminary Decision Letter of 8 June 2022 is markedly different to the process which had been adopted in the 14 May 2021 document.
  1. [102]
    The Preliminary Decision Letter of 8 June 2022 provides particularity in relation to the specific conduct which grounded the unsuitability concerns. This can be seen in the letter under the sentence which begins as follows, “Further, based on the information presently available to me, the evidence establishes that:…”. What follows are particulars of the Overpayment Incident and the Marine Incident. In my view, the content of the particulars which appear in a series of dot points provided sufficient particularity of what the decision-maker identified as the specific conduct which she was of the preliminary view amounted to conduct which would indicate unsuitability.
  1. [103]
    I do not intend to identify or repeat each aspect of the particulars.
  1. [104]
    However, in relation to the Overpayment Incident, the particulars included the following identified matters:
  1. the identification of the overpayment amount;
  2. the identification that Mr O'Brien was aware of the overpayment;
  3. the identification of a failure to take proactive steps to notify relevant responsible areas of the QPS of the overpayment; and
  4. the identification of a failure to rectify the overpayment or proactively returning the monies.
  1. [105]
    The particulars in the Preliminary Decision Letter of 8 June 2022 identified that the conduct was said to be not only improper, but arguably unethical and dishonest.
  1. [106]
    In relation to the Marine Incident, the particulars identified:
  1. that Mr O'Brien had countermanded a direction of a then Officer-in-Charge;
  2. that on two occasions in the investigatory process Mr O'Brien had been untruthful;
  3. that Mr O'Brien had acted with incompetence or negligence in the discharge of his duties.
  1. [107]
    The provision of these particulars addressed a specific concern which had been identified by Kelly J.
  1. [108]
    The Preliminary Decision Letter of 8 June 2022 identified that the decision-maker was intending to make factual findings about the matters highlighted above.
  1. [109]
    The decision-maker went on to identify further potential findings that she may ultimately make. These can be found under the sentence which provides as follows, “Subject to any submissions you wish to make about my preliminary factual findings above, and generally as to the matters below, I am of the view…”. That sentence was then followed by eight dot points, which were findings flowing from the potential factual findings which had been previously identified. Again, I will not repeat them in full. However, the content of the dot points flagged specific preliminary views of the decision-maker so that Mr O'Brien could appropriately seek to address those views by submissions and additional material.
  1. [110]
    Quite separately, and in an earlier part of the Preliminary Decision Letter of 8 June 2022, the decision-maker had also given an explanation as to her preliminary reasons why, despite the passage of 20 years, the specific conduct subsequently identified remained a suitability concern. Again, I will not repeat that reasoning in full, but it included an identification of the view that the purpose for disciplinary proceedings for an existing officer was different from an assessment of whether an applicant ought to be appointed a recruit. This letter also identified that there was no time limitation on having regard to the conduct for the purpose of considering unsuitability of an applicant to be a recruit. The letter further went on to identify that the termination of an existing employee would result in the relevant loss of knowledge, skills and experience, thereby creating a detrimental effect on the activity of an organisation, such that termination of the contract of employment would be a sanction of last resort.  In contrast, the letter stated that no such relationship exists with a prospective employee, such that the detrimental effect associated with an existing employee does not exist and is of little to no relevance to the decision of whether to engage a person.
  1. [111]
    Finally, the Preliminary Decision Letter of 8 June 2022 then contained an express invitation for further submissions from Mr O'Brien about his suitability to be employed by the QPS including, but not limited to, certain factors which were expressly highlighted in six dot points. Those six points were:
  1. first, whether the findings of fact identified above about the allegations are accepted, or are otherwise open to the decision-maker on the basis of the material;
  2. secondly, what, if any, inferences are available to the decision-maker arising from the findings of fact;
  3. thirdly, the relevance and weight to be given to any such evidence in assessing Mr O'Brien’s suitability to be employed as a police officer;
  4. fourthly, the gravity and seriousness of the conduct, and Mr O'Brien’s views in relation to the relevance of such conduct in assessing his suitability to be employed as a police officer;
  5. fifthly, whether the passage of time, and any personal matters, circumstances or reflections occurring within that passage of time, have affected the gravity and seriousness of the conduct on the decision-maker’s assessment of Mr O'Brien’s suitability to be a police officer;
  6. sixthly any additional information Mr O'Brien may wish to provide about his current circumstances and suitability to be re-employed with the Queensland Police Service as an officer.
  1. [112]
    It can be seen by the above analysis that the Preliminary Decision Letter of 8 June 2022 took a fundamentally different approach to the Preliminary Decision Letter of 12 May 2021.
  1. [113]
    On my assessment, the 8 June 2022 Preliminary Decision Letter sufficiently identified, with particularity, the germane preliminary factual findings which the decision-maker had formed. Further, the letter did seek to appropriately explain why the conduct, which occurred some 20 years ago, remained of importance on the question of suitability for a potential recruit. It also explained why the decision- maker regarded the conduct as relevant to unsuitability on the question of acceptance as a recruit, even though Mr O'Brien would not have been subjected to a sanction of dismissal from his then existing employment if disciplinary proceedings had occurred at any time between 2006 to 2008.
  1. [114]
    In my view, the Preliminary Decision Notice of 16 June 2022 did meet the requirements of natural justice in all the circumstances. In this case, Mr O’Brien was told with sufficient particularity what was alleged against him, and was given a full and fair opportunity to state his contrary position and supply his material in support of that position.
  1. [115]
    The prior deficiencies identified by Kelly J were either addressed in the Preliminary Decision Letter of 8 June 2022 or otherwise rendered inapplicable by reason of the materially different approach taken by the decision-maker.
  1. Third natural justice contention: failure to identify information to form an opinion
  1. [116]
    This third contention is essentially related to the prior contentions. It was submitted by Mr O'Brien that the decision-maker had failed to identify the information which was used to form her opinion. The result of this, on Mr O'Brien’s case, was that it did not allow him an opportunity to be heard and that it was not reasonable to expect him to respond to every document without knowing specifically what had caused the integrity concern. Mr O'Brien further submitted that he was not provided with an opportunity to respond to the facts as they were, but instead was asked to respond to speculative findings.
  1. [117]
    Mr O'Brien stated that what he expected would have been particulars identifying the specific evidence which then supported the facts. Mr O'Brien submitted the decision-maker had failed to identify what evidence was used to form the various opinions.
  1. [118]
    Finally, Mr O'Brien submitted that the decision-maker failed to provide the opportunity to be heard, because it did not identify any of the thousand pages which formed the findings.
  1. Determination of the third contention
  1. [119]
    I do not accept this third contention constituted a failure to provide natural justice. In my view, the Preliminary Decision Letter of 8 June 2022 identified, with sufficient specificity, the factual findings which the decision-maker had preliminary views about. It did so in a way which facilitated a fair opportunity for Mr O'Brien to address whether those factual findings were open on the evidence and, additionally, what other factual findings or contrary findings ought to be made.
  1. [120]
    The physical files provided to Mr O'Brien were approximately two ring binders in volume. They contain, inter alia, various witness statements and transcripts of witness interviews, along with other separate pieces of evidence such as emails, vessel records, diary notes, maps, a wage receipts summary and the various reports and memorandums which the hierarchy of the Service had produced recommending particular actions to be taken.
  1. [121]
    When Mr O'Brien received the Preliminary Decision Letter of 8 June 2022, it was not received in a vacuum. He had been involved in the initial investigations for both the Marine Incident and the Overpayment Incident, by way of being an interviewed person. He was aware of being the subject of complaint. The Preliminary Decision Letter of 8 June 2022 outlined matters which were very familiar to Mr O'Brien by the time of its receipt. The evidence supports that the large bulk of that two folder material had been provided to Mr O'Brien for some time.[28]
  1. [122]
    The information relied upon was sent to Mr O'Brien in full as a result of the order of Boddice J handed down on 1 September 2022. Mr O'Brien confirmed in oral hearing that there was no complaint about the time that he had to consider that information, prior to his delivery of his written response on 13 September 2022.
  1. [123]
    What is required in terms of natural justice is that there be fairness in all the circumstances. The particulars in the Preliminary Decision Letter of 8 June 2022 fairly identified the factual matters of concern. Having read the underlying two ring binders of material in full with the benefit of the particulars in the said letter, I am of the view that Mr O'Brien was put on notice in a fair and justified way of the factual concerns held by the decision-maker.
  1. Ground 2: Procedures that were required by law were not followed
  1. First failure to follow procedure contention: failure to comply with s 5.2(2) of the PSA Act
  1. [124]
    Mr O'Brien’s first contention under this ground is one of a failure to comply with s 5.2(2) of the PSA Act. This contention focusses on the proposition that s 5.2(2) of the PSA Act operates in respect of a number of decisions.
  1. [125]
    Section 5.2(2) of the PSA Act deals with decisions to appoint a person as a recruit. Section 5.2(2) of the PSA Act also deals with decisions as to whether a person should be appointed to a police officer position. That is, it also deals with decisions to appoint an existing police officer to a higher position.
  1. [126]
    Mr O'Brien then points to the part of the Preliminary Decision Letter of 8 June 2022, which draws a distinction between a decision not to terminate an existing employee, and what he described to be a decision not to re-engage a person as an employee. The drawing of this distinction was one which Mr O'Brien said was not open on s 5.2(2) of the PSA Act and accordingly the decision-maker’s methodology was inconsistent with the PSA Act.
  1. [127]
    Mr O'Brien went on to submit that the decision-maker held a recruit application to a different standard than that of an application by an existing officer for a higher position.
  1. [128]
    Mr O'Brien separately submitted that time and merit was not considered by the decision-maker and that this option was not open on s 5.2(2) of the PSA Act.
  1. [129]
    For each of these reasons, it was submitted that the decision was not fair and equitable as required by s 5.2(2) of the PSA Act in those circumstances.
  1. Determination of the first contention
  1. [130]
    I do not accept the contention put forward by Mr O'Brien.
  1. [131]
    First, all that s 5.2(2) of the PSA Act does is to make clear that both for a decision to appoint a recruit and for a decision to appoint an existing officer to a higher position, the decision must be made by fair and equitable procedures. Those procedures must include inviting applications and a selection on the basis of the merit. The procedure must also prevent unjust discrimination, whether in favour of or against a person. None of those requirements mean that the two decisions are identical. One decision concerns a decision whether to allow a person external to the Service to enter the service at a recruit level, the other is dealing with promotion of an existing officer. They are self-evidently different types of decisions.
  1. [132]
    As previously identified, the principles of natural justice are not rigid and fixed. The ambit of requirements for natural justice will contract and expand, dictated by the circumstances of the case, the nature of the inquiry, the rules under which the decision-maker is acting, and the subject matter being dealt with.[29] As much was acknowledged in O'Rourke v Miller when dealing with a decision to terminate a probationary officer’s service.
  1. [133]
    Secondly, s 5.2 of the PSA Act itself identifies that there will be differences in the decision-making process between appointing a recruit and the appointment of an existing officer to a higher office.
  1. [134]
    Thirdly, it is incorrect to say, as Mr O'Brien does, that there was a failure to comply with the PSA Act because time and merit was not a consideration of the decision- maker.
  1. [135]
    Mr O'Brien’s reference to time was to the fact that the conduct underlying the Marine Incident and the Overpayment Incident was some 20 years old. In support of this submission, Mr O'Brien referred to the statement by his Honour Justice Muir in Cutler v Commissioner of Police Service [2001] QSC 161 that:

“A decision which permanently excluded an applicant from applying for admission successfully in the future because of a fault or failing, the gravity of which could be lessened by the effluxion of time, may well not be fair…”[30]

  1. [136]
    I reject this submission. The Preliminary Decision Letter of 8 June 2022, and the final decision both took into account that the conduct was some 20 years old. It is not the case that there was simply a failure by the decision-maker to have regard to that fact.
  1. [137]
    Section 5.2(2) of the PSA Act does not operate to exclude consideration of conduct which may be of some age. Both the Preliminary Decision Letter of 8 June 2022 and the final decision identified why the decision-maker regarded that conduct as still relevant in rejecting the application of Mr O'Brien to be appointed a recruit. The time from when the conduct was engaged in, and its effect on the merit of Mr O'Brien were considered by the decision-maker. There was no failure in this respect to comply with the requirement of the statute.
  1. [138]
    Further, the reference made to the decision by Muir J is misconceived. Cutler v Commissioner of Police Service[31] was a case where the allegation was that, because of certain past conduct, no subsequent application for recruitment would ever be considered. What his Honour was concerned with in that case was the proposition that because the gravity of particular conduct might be lessened over time, it would be incorrect to exclude any further consideration at all of a subsequent application.
  1. [139]
    One way by which the gravity of conduct could be lessened over time is by insight and remorse in respect of past conduct. That particular issue was the subject of consideration by the decision-maker in the final decision after he had received Mr O'Brien’s response. The Preliminary Decision Letter of 8 June 2022 had, amongst other things, specifically invited and sought submissions from Mr O'Brien about whether the passage of time, and any personal matters, circumstances or reflections occurring within that passage of time, had affected the gravity and seriousness of the conduct on the decision-maker’s assessment of Mr O'Brien’s suitability to be a police officer.
  1. [140]
    The vice identified by Muir J in Cutler v Commissioner of Police Service[32] was not present in the final decision. The decision-maker in the final decision stated, inter alia, “…As to your observations about the preliminary findings being tantamount to a permanent bar on your future employment with QPS, no such barrier exists. The findings in this decision are limited to your circumstances as they exist presently, and any future application will be dealt with on its own merits at that time.”
  1. [141]
    Fourthly, Mr O'Brien submitted that he was being held to a standard which was different from that of other applicants and police officers.
  1. [142]
    Mr O'Brien submitted that the decision-maker did not consider his merit from 2003 onwards. In furtherance of that submission, Mr O'Brien identified that his response letter of 13 September 2022 contained a statement to the effect that since resigning from the QPS in 2008, he had worked for a decade in the non-profit sector, run projects for a number of identified organisations, and had been employed by Queensland Corrective Services as a Corrections Officer for a number of years. He submitted that this statement was not referred to in the final decision and this reflected a failure to consider his merit from 2003 onwards.
  1. [143]
    I note that the above statement in the letter of 13 September 2022 was immediately followed by a further statement by Mr O'Brien to the effect that his integrity had never been questioned.
  1. [144]
    I do not accept that Mr O'Brien was held to a different standard than other applicants, as was submitted.
  1. [145]
    Ultimately, I am satisfied that the decision-maker had considered Mr O'Brien’s response of 13 September 2022, including the statement that he referred to. That is what s 5AA.12(3) of the PSA Act required. This is for a number of reasons.
  1. [146]
    First, the final decision stated that the decision-maker had, inter alia, regard to Mr O'Brien’s response document of 13 September 2022. That was not just a hollow statement. There were express references throughout the final decision to various parts of the contents of Mr O'Brien’s response document. Whilst there was no repetition in the final decision of Mr O'Brien’s statement that he had gone on to work for non-profit organisations, run projects for a number of identified organisations, and had been employed in the Queensland Corrective Services for a number of years, that does not result in a conclusion that the decision-maker had not “considered” that part of Mr O'Brien’s “representations”.
  1. [147]
    It has been recognised that the reasons of administrative decision makers are not necessarily, or even usually, a comprehensive statement of all aspects of the decision maker’s thought process. Further, even judicial reasons, which are expected to be more comprehensive and detailed than those of administrative decision-maker’s, are not required to deal with all of the evidence or all of the submissions. A process of selection is undertaken: that is a necessary part of the process and not merely a concession to judicial frailty.[33]
  1. [148]
    Secondly, the final decision expressly acknowledged Mr O'Brien’s extensive service history with the QPS. It expressly acknowledged Mr O'Brien’s statement about the impacts on Mr O'Brien’s career post-QPS said to have arisen from his non-acceptance as a recruit. Relevantly, it expressly acknowledged that, apart from the Marine Incident and Overpayment Incident, Mr O'Brien had been assessed as having suitability to be employed by the QPS. That last acknowledgment in particular is consistent with the inference that the decision-maker appreciated, inter alia, that Mr O'Brien had worked in various other jobs after 2008 where no questions of his integrity had been raised. That is an inference which I drew from my reading of the final decision in light of Mr O'Brien’s letter of 13 September 2022.
  1. [149]
    Thirdly, an important part of the gist of the final decision is that, in light of the findings made, Mr O'Brien’s non-acceptance of fault and his lack of remorse indicated an absence of insight in respect of the Marine Incident and the Overpayment Incident. It is this non-acceptance of fault and lack of remorse which are said to have materially contributed to the ongoing relevance of the conduct as found. That view was reached in circumstances where the decision-maker clearly had regard to the acknowledgments referred to above.
  1. [150]
    The reasoning process engaged in by the decision-maker accorded, in my view, with a fair and equitable procedure as dictated by s 5.2(2) of the PSA Act. It was one which involved a consideration of merit. The fourth submission set out above could equally have been formulated under the next contention which concerns s 5AA.12 of the PSA Act. For completeness and for the same reasons as expressed above, I am satisfied in respect of the substance of this fourth submission that the decision- maker had considered the relevant complained about representation made by Mr O'Brien, as required by s 5AA.12(3) of the PSA Act.
  1. Second failure to follow procedure contravention: Failure to comply with PSA Act s 5AA.12
  1. [151]
    I do not accept the contention put forward by Mr O'Brien.
  2. [152]
    This contention largely covers the same arguments raised under the natural justice ground and the contention based on a failure to follow s 5.2(2) of the PSA Act.
  3. [153]
    In effect, it is a submission that a reasonable opportunity to make representations, as provided for in s 5AA.12(1)(b) of the PSA Act, was not provided to Mr O'Brien. Mr O'Brien submitted that this was because of the size of the documents relied upon, and a failure to give particularity of the conduct.  The primary written submissions of Mr O'Brien provide what is said to be an illustration of this. It refers, as an example only, to the statement in the final decision that, “all officers interviewed as part of the investigation provided evidence which support that such a direction was given by Senior Sergeant Day, and was well known amongst all Gold Coast Water Police personnel.” This quote was made in respect of the Marine Incident.
  1. [154]
    Mr O'Brien contended that this quoted statement would have indicated that there must have been overwhelming evidence to support that fact. He further submitted that if that were the case, he would have expected that the respondent would have identified what information was relied upon.
  2. [155]
    Mr O'Brien submitted that he was not attempting to engage in a merits review.
  3. [156]
    Mr O'Brien submitted that not a single officer had stated that he was aware of the alleged direction and that the majority of officers were unaware that any direction by SS Day had ever been made. Importantly, Mr O'Brien said that SC Foessel, who had been the master of the vessel at the time of the Marine Incident (and the person the subject of the alleged direction), had denied knowledge of the direction in numerous interviews.
  4. [157]
    The submission was that the matters raised indicated the significant shortcomings of the procedures adopted and exemplified that there had been a failure to conduct a fair hearing, whereby Mr O'Brien had a right to be heard as a tenent of procedural fairness.
  5. [158]
    All of this, it was submitted, had denied Mr O'Brien a reasonable opportunity to make a representation to the decision-maker.
  1. Determination of the second contention
  1. [159]
    For the reasons identified under the natural justice issue, my assessment of the circumstances of this case (bearing in mind the nature of the decision and the relevant provisions of the PSA Act), is that natural justice did not dictate that Mr O'Brien needed an oral hearing and a right to cross-examination.
  2. [160]
    Further, I am satisfied that the Preliminary Decision Letter of 8 June 2022 sufficiently particularised the conduct complained of.
  3. [161]
    Turning then to the specific example provided by Mr O'Brien, I conclude that it does not illustrate that he was not given an appropriate opportunity to respond as provided for in the statute.
  4. [162]
    The Preliminary Decision Letter of 8 June 2022 had identified the preliminary findings that the Marine Incident involved the countermanding of a direction of the then Officer-In-Charge, and the untruthfulness of Mr O'Brien on two subsequent occasions in the interview process.
  5. [163]
    There can be no confusion that the direction being referred to in the investigation was the direction said to have been given by SS Day to SC Foessel not to operate the relevant vessel in a solo capacity. Equally, there can be no confusion that the relevant untruthfulness being referred to was Mr O'Brien having denied knowledge of the direction on two occasions when interviewed about the Marine Incident. Those denials appear in the transcripts of Mr O'Brien’s two interviews.[34]
  1. [164]
    For the purpose of the example Mr O'Brien has given, the type of analysis of the information underlying the Preliminary Decision Letter of 8 June 2022, as contained particularly at page 22 in the primary written submissions of Mr O'Brien, is an analysis he could have conducted in response to the relevant preliminary decision letter.
  2. [165]
    Thirdly, the analysis which Mr O'Brien performed at page 22 of his primary written submissions is, in effect, a merits attack on the final decision.
  3. [166]
    Fourthly, it should not be assumed that the analysis of Mr O'Brien is objectively correct in any event. As this is not a merits review, I do not intend to comment on every aspect of the analysis. However, I will give my own example of how it is objectively incorrect.
  4. [167]
    One of the most important statements made by Mr O'Brien[35] was that SC Foessel had denied knowledge of the direction in numerous interviews. This contention by Mr O'Brien was important as his case, in part, was that no such direction had ever existed.
  5. [168]
    The relevant statement on this issue is objectively incorrect. SC Foessel, in two separate transcribed interviews, expressly accepted that the direction not to operate the vessel solo had been given to him in 2003.[36]
  6. [169]
    Mr O'Brien said that not a single officer stated that Mr O'Brien was previously aware of the alleged direction. However, on the material, there was significant evidence which supported a potential finding that Mr O'Brien had been aware of the direction. In his interview, SS Day had stated that he had informed all of the supervisors of the relevant direction.[37] Mr O'Brien at all relevant times was the second-in-charge to SS Day and was one of the supervisors of SC Foessel.
  7. [170]
    Further, SS Day had identified that at some point after the direction had been given, Mr O'Brien had subsequently approached him, on behalf of SC Foessel, about lifting the restriction on SC Foessel not being able to operate the AP Anderson solo. In a transcribed interview, SS Day stated that he clearly refused this and told Mr O'Brien to communicate that decision to SC Foessel.[38]
  8. [171]
    Quite separately to the statements made by SS Day, SC Foessel in one of his interviews, corroborated that this had occurred. SC Foessel identified that he had spoken to Mr O'Brien and had asked Mr O'Brien to go to SS Day to get permission for him to operate the relevant vessel solo. He stated that Mr O'Brien had then come back and given the response to SC Foessel that he still had to work on his skills. In effect, the response was that the request made of SS Day through Mr O'Brien had been refused.[39]
  1. [172]
    Other senior officers had direct knowledge of the direction. Senior Constable Brown stated in his interview that he knew of the direction personally and had been told of it by SS Day.[40] Senior Constable Brown further stated that as far as he was concerned it was general knowledge in the office. Sergeant Leonie Scott made a statement that she was personally aware of the direction for SC Foessel not to operate the vessel solo. She identified that this direction was very common knowledge and she had been aware of it for months before the Marine Incident.[41] She expressed the view that everybody would have known of the direction; it was something openly discussed and even joked about because of previous incidents involving SC Foessel in other vessels.
  2. [173]
    Sergeant Mark Kelly stated that he knew about the direction in his interview. He identified an occasion in about October 2003 when SC Foessel approached him and spoke to him about not being able to drive the vessel by himself. At that time, Sergeant Kelly recalled SC Foessel telling him that Mr O'Brien had said that he could not see why SC Foessel could not drive the boat by himself. Sergeant Kelly stated that as a result of this conversation, he went to SS Day and told him about what Mr O'Brien had been going around and saying, namely, that SC Foessel could drive the vessel himself. He stated that SS Day had said to him that SC Foessel was not to drive the boat by himself. Sergeant Kelly stated that he went back to SC Foessel and told him that, under no circumstances, was SS Day going to let him drive the boat.[42]
  3. [174]
    There was material before the decision-maker which could have supported a finding that the direction had been given and that Mr O'Brien had known about the direction.
  4. [175]
    There was further material before the decision-maker that SC Foessel was not the only officer the subject of restriction. Constable Banyeri, in a transcribed interview statement, said that he also had been told that he could not operate the AP Anderson solo because he did not have a restricted Coxswain’s certificate. He had previously had the relevant certificate, but it had expired, and SS Day had revoked his sole usage of the relevant vessel. Constable Banyeri was informed of this restriction both orally and in writing, and Sergeant Kelly had separately spoken to him about the matter.[43]
  5. [176]
    Constable Banyeri also recalled being personally aware of the inability of SC Foessel to take the vessel, because he did not have a restricted Coxswain’s certificate. His recollection was that SS Day had told him that he had spoken to everyone in the office who was authorised to use it. On that basis, he had an understanding that Mr O'Brien was aware of the direction.[44]
  1. [177]
    As part of the example, Mr O'Brien refers, in his primary submissions, to a Senior Constable Bullers, and says that Senior Constable Bullers provided evidence that it was commonplace for an officer to operate the vessel solo, and Senior Constable Bullers was not questioned about the direction. The transcribed interview with Senior Constable Bullers recorded that he had only worked in the Gold Coast Water Police for a period of three months in 2001. This was two years prior to the direction being given to SC Foessel and the relevant marine incident happening.[45]
  2. [178]
    I do not propose to go through the rest of the submissions made by Mr O'Brien at page 22 of his primary submissions. It suffices to say that what is set out above illustrates that, in a number of respects, what Mr O'Brien submitted was either objectively incorrect or was contestable on the material.
  3. [179]
    The example given by Mr O'Brien does not support that Mr O'Brien was not afforded the statutory opportunity to respond to either the Preliminary Decision Letter of 8 June 2022 or the information which accompanied it.
  1. Ground 3: No evidence or other material to justify the making of the decision(s 20(2)(h) of the JR Act)
  1. Introduction
  1. [180]
    Ground 3 of the application is that there was no evidence or other material to justify the making of the decision in accordance with s 20(2)(h) of the JR Act.
  2. [181]
    Mr O'Brien’s position on this ground was unclear.
  3. [182]
    Mr O'Brien, on page one of his primary submissions, listed it as one of the three grounds of review. However, those same written submissions then advanced no positive submissions in support of the ground.
  4. [183]
    In his reply submissions, Mr O'Brien purported to add a Ground 4, which was described as “unreasonableness”. That fourth ground was introduced in response to a submission by the respondent to the effect that the decision was reasonable and there was sufficient evidence capable of satisfying the decision-maker that Mr O'Brien was not suitable as a recruit. In his reply submissions, Mr O'Brien submitted that there was no evidence to substantiate either matter. Mr O'Brien then went on, in the reply submissions at paragraphs [44]-[45] (in relation to the Marine Incident) and paragraphs [46]-[47] (in respect of the Overpayment Incident), to refer to various material which he said was before the decision-maker. Amongst other things, Mr O'Brien then submitted that there was no evidence which justified the findings of the decision-maker. He submitted that the basic elements of an offence had failed to be established.
  5. [184]
    When making his oral submissions, Mr O'Brien did not appear to initially make any submissions in relation to the no evidence ground. This apparent position was specifically raised with Mr O'Brien.[46] Mr O'Brien responded:

“I haven’t addressed it, your Honour. It was just - it was more so redressing the submission of the respondent by saying that there was sufficient evidence. And I was just identifying that there isn’t sufficient evidence. There is - there’s virtually - there’s no evidence that - every submission, every letter, every show cause has never directed to one piece of evidence. It’s directed to opinions of others, it’s directed to reports of others, but not actual facts of evidence. And that was just highlighting the fact that there’s no evidence. Like, but it’s a very difficult ground to prove, so I - I understand if that doesn’t - - -”

  1. [185]
    Despite the ground not having been advanced in the primary submissions, Mr O'Brien had made some submissions in his reply and orally which may be attributable to this ground. Further, Mr O'Brien had not formally abandoned this ground. It is appropriate to consider the ‘No Evidence’ ground as being a live issue in the proceeding.
  1. Statutory sections and applicable legal principles
  1. [186]
    The ground relied upon is founded on s 20(2)(h) of the JR Act, which is in the following terms:
  1. 20
    Application for review of decision
  1. …
  1. (2)
    The application may be made on any 1 or more of the following grounds—
  1. …
  1. (h)
    that there was no evidence or other material to justify the making of the decision;
  1. …
  1. [187]
    That ground is then also dealt with by s 24 of the JR Act which provides as follows:
  1. 24
    Decisions without justification—establishing ground (ss 20(2)(h) and 21(2)(h))
  1. The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out—
  1. (a)
    unless—
  1. (i)
    the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
  1. (ii)
    there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
  1. (b)
    unless—
  1. (i)
    the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
  1. (ii)
    the fact did not or does not exist.
  1. [188]
    In Australian Retailers v Reserve Bank (2005) 228 ALR 28 at 163-164, Weinberg J explained the operation of the broadly equivalent sections in the then Administrative Decisions Judicial Review Act 1977 (Cth) (“ADJR Act”) as follows:[47]
  1. [576]
    …Section 5(1)(h) provides for review on the ground “that there was no evidence or other material to justify the making of the decision”. However, that section is qualified by s 5(3), which provides as follows:
  1. (3)
    …Section 5(1)(h) The ground specified in paragraph 1(h) shall not be taken to be made out unless:
  1. (a)
    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
  1. (b)
    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
  1. [577]
    Section 5(3)(a), in substance, seems merely to restate the doctrine of jurisdictional fact…
  1. [578]
    Section 5(3)(b) deals with a different issue, namely whether the decision under challenge was “based…on the existence of a particular fact, and that fact did not exist”. This paragraph was considered by the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; 27 ALD 181 (Curragh), where it was held, at FCR 220-4; ALD 187-91, that s 5(3)(b) could only be satisfied if:
  • the decision was “based on” the existence of a “particular fact”, meaning a fact that was “critical to the making of the decision”;
  • there was no evidence or other material to support the finding of that particular fact; and
  • it could be shown that the particular fact did not exist.
  1. [579]
    In Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402; [2002] HCA 32 (Rajamanikkam), the High Court was concerned with the equivalent to s 5(1)(h) of the ADJR Act, which formerly appeared in the Migration Act a s 476(1)(g). The equivalent to s 5(3) was s 476(4). There are difficulties with aspects of the reasoning in Rajamanikkam, and these are canvassed by Aronson at pp 242-5. However, it can at least be said that Curragh was cited with approval by Gleeson CJ at [33], Kriby J at [115]-[118] and Callinan J at [140] in Rajamanikkam.
  1. [580]
    The last element of s 5(3)(b) operates to confine the no evidence ground to a case where the applicant can actually negative the fact on which the decision was based. It requires the applicant to adduce evidence positively establishing the contrary to the “fact” that it is alleged the decision-maker based its decision on, and in respect of which it is claimed there is no supporting evidence or other material. Meeting this second limb of s 5(3)(b) can be extremely difficult. The mere absence of evidence as to a fact will not establish its non-existence. As Aronson notes at p 244:
  1. “Further second limb questions have concerned whether it covers; a decision-maker’s finding of a fact’s non- existence; a state of affairs rather than a specific fact; predicted facts rather than just past facts; a decision- maker’s disbelief (either wholly, or to the relevant level of persuasion) of an assertion of facts; or a refusal to exercise a statutory power, rather than a decision to exercise it. [Footnotes omitted]”
  1. [189]
    There has been debate as to whether the effect of the Commonwealth equivalent of s 24 of the JR Act broadens or narrows the operation of the no evidence rule. This contention was dealt with in Sunchim Pty Ltd v Commissioner of Taxation [2010] FCA 21 by Perram J at paragraphs [31]-[41], particularly [40] and [41]. The current state of the law favours that s 24 of the JR Act narrows the operation of the ground, in that the requirements of that section are cumulative on the content of s 20(2)(h) of the JR Act. This is the interpretation which accords with the reasoning of Weinberg J. I am of the view that this also reflects the proper construction of ss 20(2)(h) and 24 of the JR Act. I will adopt this construction when dealing with this ground.
  2. [190]
    In this case, it does not appear that Mr O'Brien is relying on s 24(a) of the JR Act, namely that there was the absence of a jurisdictional fact. Rather, he is relying upon the operation of s 24(b) of the JR Act. In that respect I will turn to Mr O'Brien’s contentions.

No evidence contention

  1. [191]
    Mr O'Brien, at paragraphs [42]-[47] of his reply submissions, addressed certain submissions which had been made on behalf of the Commissioner. It is these submissions which appear to potentially engage the no evidence ground. I will set these submissions out in full rather than seeking to paraphrase them. They are as follows:[48]
  1. 42.
    Respondents’ submission (paragraph 79);
  1. The respondent submits that
  1. “there was sufficient evidence, which the decision maker was entitled to consider, capable of satisfying her there was evidence to conclude the applicant was not suitable to be a recruit.”
  1. “Alternatively, it appear the applicant is asserting, upon the information available to the decision maker, the decision of the delegate in refusing this application to become a recruit within the Queensland Police Service was so unreasonable that no reasonable decision maker could reach that conclusion.”
  1. 43.
    The applicant asserts that there is no evidence to substantiate either matter. The respondent submissions refer to ‘sufficient evidence’, however has failed to provide reference. The applicant submits that that there is insufficient factual evidence to support the decision of Assistant Commissioner Scanlon.
  1. 44.
    Disobey Direction
  1. Allegation - That the applicant disobeyed direction was allegedly given by Senior Sergeant Day on an unknown date, sometime in 2003. The alleged direction was not ot allow Senior Constable Fossell to operate vessel A.P. Anderson solo. It’s noteworthy the applicant, Sergeant O'Brien was Acting Senior Sergeant (OIC) for the majority of 2013. Senior Sergeant Day promoted to the position on about 11/10/2003. (CC - 17). During the period the applicant was OIC, then Sergeant Day was seconded as the staff officer for then Assistant Commissioner Stewart (former Commissioner).
  1. 45.
    Lack of evidence as follows;
  1. a.
    No date of alleged direction was given was established
  1. b.
    No record of direction, email, notice, policy, diary notation, training plan.
  1. c.
    All officers interviewed, were either not aware or vague about the direction
  1. d.
    Two statements provided by Senior Sergeant DAY (CC 6 & CC 10) did not contain a date of direction or wording of said direction. Statements changed between investigations due to claiming a witness Flori (who was not present). (CC - 13, pg. 73-top)
  1. e.
    Senior Constable Fossell provided a submission upon plea of guilty to his matter however disputed the direction. (CC - 13, pg 76, para 2.1)
  1. f.
    Senior Constable Fossell provided an email where Senior Sergeant Day had provided an assessment report stated he was competent at operating all vessels in 2002. (CC - 13, pg 85-86)
  1. g.
    Senior Constable Fossell provided evidence that Senior Sergeant Day had allowed him to drive the vessel solo in late 2003. (CC - 13, pg 76, para 3.0)
  1. h.
    Gold Coast Water Police had a significant history of staff complaints. Between 2003 - 2005. Seven staff out of twelve staff had complaints made against them by other staff, majority initiated by Senior Sergeant Day. Bulling behaviour was identified in Senior Constable Fossell report. (CC - 13, pg 82, Para 9.0)
  1. i.
    Senior Sergeant Day kept a detailed daily diary of all activities, no diary entry for the direction. Detailed diary entry when the accident occurred made, despite it occurring on a Sunday when he was off duty. No diary entry recording the direction. (CC - 13, pg 91 - 98)
  1. j.
    Evidence presented to the investigator that Senior Sergeant Day had been untruthful in his statement about having a witness to the applicant making admissions (Senior Sergeant Flori). Senior Sergeant Day submitted a new statement. (CC - 13, pg. 73). No action taken against Senior Sergeant Day for his untruthfulness.
  1. 46.
    Overpayment
  1. Allegation - The applicant was over paid due to an administration error in 2003. The applicant contacted South Eastern Region HR and advised Officer in Charge of a suspected overpayment. The applicant did not receive advice that there was an overpayment. 21st April 2005 a complaint was lodged by unknown officer, the applicant was not actually advised of the overpayment until 27th October 2005. The applicant has always maintained that he did not breach any policy. (CC - 17, pg 22, 7.5 Overpayments)
  1. 47.
    Lack of evidence;
  1. a.
    Complaint was lodged on 21st April 2005 by an unknown person (CC - 17, pg. 45) Overpayment in 2003. Complaint lodged in April 2005.
  1. b.
    The applicant only found out about the overpayment by HR on 27th October 2005 (CC - 16, pg 17, top BOB)
  1. c.
    The applicant kept the payslip in a drawer with ‘post it note’ (keep). The applicant believed he was over paid and advised HR. Despite advising HR, it was never confirmed that an overpayment had occurred.
  1. d.
    There is no indication the applicant attempted to hide the overpayment. All statements indicated the applicant advised all staff working that day of the error.
  1. e.
    Overpayment was an administration error, HR officer entered 2002 instead of 2003 as it appears a form was filed incorrectly by administration staff. (CC 17)
  1. f.
    Administration staff who made the error was never interviewed or subject to a complaint or sanction.
  1. g.
    Payment slip is very complicated, difficult to establish overpayment. Two pages with over 200 line items on the payslip. (CC 17 pg 38 -39)
  1. h.
    HR did not advise of the overpayment after being contacted. As per policy it was QPS responsibility to advise the officers. No person discipline for failure to advise. (CC-17, Pg 22 -23)
  1. i.
    Overpayments were common at that time, identified by Davey and Millard. Overpayments rules were negated in the EBA due to the prevalence of them.
  1. j.
    The applicant advised HR and OIC, which was the only requirement under the Human Resource Manual.”
  1. [192]
    In addition to those submissions, Mr O'Brien also focussed on one particular example which he submitted was apparent from the final decision as it concerned the Overpayment Incident. In this respect, Mr O'Brien submitted that his only identified breach for the Overpayment Incident was of the Human Resources (“HR”) Manual.[49] He further submitted that the overpayment itself was not an offence, and that he had complied with the HR Manual by contacting the Officer-In- Charge, being SS Day. As part of his submission, he pointed to a statement which appeared in the 4 April 2006 memorandum of Superintendent Pointing. That statement was as follows:[50]

“Enquiry was originally made with HR because of conversation between Senior Sergeant Barry Day and Sergeant O'Brien: during which Sergeant O'Brien made reference to a big overpayment that he had received and was not going to repay. Ms Maguire was advised by Inspector Payne to advise her manager of the overpayment as per HR but to take no action at this time until further advice from this branch. Ms Maguire also advised to ensure matter kept confidential at this time.”

  1. [193]
    Mr O'Brien submitted that this was evidence that he had complied with the HR Manual.
  1. Determination of the contention: no evidence or other material to justify the making of the decision
  1. [194]
    The matters raised by Mr O'Brien in paragraphs [45] and [47] of his reply submissions are matters which go to the merits of the decision, rather than ones which address what is required to be established for a no evidence ground of review pursuant to ss 20(2)(h) and 24 of the JR Act.
  1. [195]
    The court, on a judicial review application, is not conducting a merits hearing. As Wigney J observed in Minister for Immigration and Border Protection v Stretton (with Allsop CJ agreeing), in the context of an alleged unreasonableness ground:[51]

“The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision…or if the decision is within the “area of decisional freedom” of the decision-maker…it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. Unfortunately, and with the greatest respect to the primary judge, it is difficult to escape the conclusion that that is what occurred here.” (References omitted)

  1. [196]
    I have, under the second ground of failure to meet a requirement of law, referred to some of the material which related to the submissions made by Mr O'Brien that there was no direction for SC Foessel not to operate the relevant vessel solo and that he did not know of the direction. For the reasons previously stated, there was clearly material before the decision-maker which could have supported a finding that such a direction had been given and that Mr O'Brien knew of it. This included that SC Foessel himself unambiguously acknowledged that such a direction had been given.
  2. [197]
    On my reading of the material in relation to the critical path of reasoning, there is some evidence from which a decision-maker could have made the relevant findings contained in the final decision.
  3. [198]
    That is not to say that this Court would have found in the same way as the decision- maker. This proceeding is not concerned with a re-hearing of the merits of the underlying decision.
  4. [199]
    In relation to the particular example which Mr O'Brien relied upon in respect of the Overpayment Incident, I will make some brief observations.
  5. [200]
    First, the extract taken from Exhibit CC-16 at page 66 that is relied upon by Mr O'Brien did not particularly help Mr O'Brien. It records that there had been a conversation between Mr O'Brien and SS Day. In it, SS Day has stated that Mr O'Brien had said to him words to the effect that there was “a big payment he had received and was not going to repay”.
  1. [201]
    The purpose of informing an Officer-in-Charge pursuant to the HR Manual is to assist in facilitating payment. Such a statement as set out above would not have been a statement for that purpose, as seems to have been submitted by Mr O'Brien, in that it purports to record that Mr O'Brien had said to SS Day that he was not going to repay the money.
  2. [202]
    Secondly, whilst Mr O'Brien in his interview had identified that he had contemporaneously told a number of officers about his receiving an overpayment, he did not identify that one of those officers was SS Day. Three officers were identified as persons who Mr O'Brien had contemporaneously spoken to in a lunchroom about the overpayment at or about the time of the receipt of the funds. They were Officers Scott, Kelly and Brown. Each of the officers were interviewed. No one identified that SS Day was present on that occasion.
  3. [203]
    Thirdly, I do not read the entry relied upon in Exhibit CC-16, at page 66, as being a record that Mr O'Brien had necessarily made this statement to SS Day at or about the time of the payment. It is, at least, equally consistent with it having been made on a later date. The fact that the purported conversation included an alleged statement of an intent not to repay supports that it may have been made at a later date. The inference being that SS Day would have promptly reported such a conversation.
  4. [204]
    Fourthly, and by reason of the third point, I raised with Mr O'Brien during the oral submissions whether the material before the decision-maker was to the effect that Mr O'Brien informed SS Day of the overpayment at or about the time of the overpayment. The response of Mr O'Brien was that at the relevant time of receiving the overpayment, Mr O'Brien was not aware of what the HR Manual said.[52] That is, he was not aware at that time, of the obligation to inform the Officer-in-Charge.
  5. [205]
    Fifthly, what Mr O'Brien had emphasised in his interview was that some weeks after the overpayment, he had spoken to an unnamed person in HR, identifying that he had received an overpayment. That person was not the Officer-in-Charge. At that time in the interview, he did not identify that he had specifically told his Officer-in-Charge of the overpayment. He had stated that he told others in the office without being specific as to who they were.
  6. [206]
    This analysis of the material demonstrates, in my view, that there was some evidence from which a finding of non-compliance with the HR Manual could have been made. Again, I emphasise that I am not making a decision on a merits basis. The above observations are only directed to whether the no evidence ground has been made out in respect of the particular example given.
  7. [207]
    For all of these reasons, this particular ground is not made out.

Conclusion

  1. [208]
    In conclusion, Mr O'Brien has not made out any of his grounds of review, and accordingly, the application ought to be dismissed.
  1. [209]
    I will hear the parties on costs.

Footnotes

[1]This portion of the letter from DSS Millard is precisely replicated, complete with any typographical and grammatical errors.

[2]The portions of the memorandum from Superintendent Pointing are precisely replicated, complete with any typographical and grammatical errors.

[3]These portions of the memorandum from Assistant Commissioner Davey are precisely replicated, complete with any typographical and grammatical errors.

[4]These portions of the memorandum from Assistant Commissioner Stewart are precisely replicated, complete with any typographical and grammatical errors.

[5]This portion of the memorandum is precisely replicated as it appears, complete with any grammatical and typographical errors.

[6]This portion of the memorandum is precisely replicated as it appears, complete with any grammatical and typographical errors.

[7]O’Brien v Commissioner of the Queensland Police Service [2021] QSC 349 at [46].

[8]O’Brien v Commissioner of the Queensland Police Service [2021] QSC 349 at [23].

[9]The correspondence from the Queensland Police Service is precisely replicated as it appears, complete with any grammatical and typographical errors.

[10]The document from Mr O’Brien is precisely replicated as it appears, complete with any grammatical and typographical errors.

[11]This document from Mr O’Brien is precisely replicated as it appears, complete with any grammatical and typographical errors.

[12]This correspondence from the Queensland Police Service is precisely replicated as it appears, including any grammatical and typographical errors.

[13]Section 5AA.11 PSAA

[14]Section 5AA.12 PSAA

[15]Section 7.12 PSAA

[16]Aldrich v Ross (2001) 2 Qd R 235 at [26].

[17](1985) 156 CLR 397, 412.

[18]Morier v Deputy Commissioner Conder Misconduct Tribunal Queensland TA No. 1 of 2003 at [39].

[19]Huntington v State of Queensland (Queensland Health) [2022] QIRC 290.

[20]Cutler v Commissioner of Police Service [2001] QSC 161 at [69] per Muir J.

[21]Kioa v West (1985) 159 CLR 550 at 584-585.

[22]There are some exceptions to the first and second stages which are not relevant to the current proceeding.

[23]This included Mr O’Brien referring to portions of the Police Service Administration (Discipline Reform) and Other Legislation Amendment Bill 2019, explanatory notes.

[24]See PSA Act Schedule 1 Relevant information - Information about police officers, recruits and applicants to become police officers or recruits - item 2.

[25]See PSA Act Schedule 1 Relevant information - Information about police officers, recruits and applicants to become police officers or recruits - item 10.

[26]O’Rourke v Miller (1985) 156 CLR 342 at 353-354.

[27]O'Rourke v Miller (1985) 156 CLR 342 at 353.

[28]Affidavit of Craig Capper dated 2 February 2023, paragraphs 2(d) - 2(g) and 8; and CC-19, CC-21 and CC-22.

[29]O’Rourke v Miller (1985) 58 ALR 269 at 353.

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

[31][2001] QSC 161.

[32][2001] QSC 161.

[33]Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225 at paragraph [62] per Payne JA, with whom Ward ACJ and Basten AJA agreed.

[34]CC-10 page 9, Transcript of Interview on 28 April 2004 and CC-13 page 32, Transcript of Interview on 10 March 2006.

[35]At page 22 of his primary submissions.

[36]CC-10 page 32, Transcript of Interview of 25 August 2004; CC-13 at page 4, Transcript of Interview of 6 March 2006.

[37]CC-10 page 48, Transcript of Interview of 30 April 2004.

[38]CC-10 page 48, Transcript of Interview of 30 April 2004.

[39]CC-13 page 8, Witness Transcript of 6 March 2006.

[40]CC-11 pages 22-23, Transcript of Interview of 31 January 2006.

[41]CC-11 page 32, Transcript of Interview of 31 January 2006.

[42] CC-12 pages 72-74, Transcript of Interview of 21 January 2006.

[43]CC-12 page 84-85, Transcript of Interview of 25 January 2006.

[44]CC-12 page 97, Transcript of Interview of 27 January 2006.

[45]Exhibit CC-13 page 67, Transcript of Interview of 6 April 2006.

[46]T1-41 l 40 to 1-42 l 25.

[47]Australian Retailers v Reserve Bank (2005) 228 ALR 28 at [576]-[580].

[48]The relevant paragraphs from Mr O’Brien’s submissions are precisely replicated, complete with any typographical or grammatical errors.

[49]The HR Manual was not before the decision-maker, but the relevant extract of it was reproduced in the 4 April 2006 memorandum of Superintendent Pointing at CC-17 page 5, paragraph 6, being section 9.2.4.2 of the HR Manual.

[50]See Exhibit CC-16 at p 66.

[51]Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 29-30 [92].

[52]T1-107 l 17.

Close

Editorial Notes

  • Published Case Name:

    O'Brien v Commissioner of Police

  • Shortened Case Name:

    O'Brien v Commissioner of Police

  • MNC:

    [2024] QSC 82

  • Court:

    QSC

  • Judge(s):

    Sullivan J

  • Date:

    16 May 2024

  • White Star Case:

    Yes

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
2 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225
2 citations
Jump To
Cite 1 - (2023) 112 NSWLR 225
Cite 2 - (2023) 112 NSWLR 225
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
1 citation
Jump To
Cite 1 - (1992) 34 FCR 212
Cutler v Commissioner of Police Service [2001] QSC 161
6 citations
Jump To
Cite 1 - [2001] QSC 161
Cite 2 - [2001] QSC 161
Cite 3 - [2001] QSC 161
Cite 4 - [2001] QSC 161
Cite 5 - [2001] QSC 161
Cite 6 - [2001] QSC 161
Huntington v State of Queensland (Queensland Health) [2022] QIRC 290
2 citations
Jump To
Cite 1 - [2022] QIRC 290
Cite 2 - [2022] QIRC 290
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
1 citation
Jump To
Cite 1 - (2016) 237 FCR 1
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222
1 citation
Jump To
Cite 1 - (2002) 210 CLR 222
Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32
1 citation
Jump To
Cite 1 - [2002] HCA 32
National Securities and Exchange Commission v News Corporation (1984) 58 ALJR 308
1 citation
Jump To
Cite 1 - (1984) 58 ALJR 308
O'Brien v Commissioner of the Queensland Police [2021] QSC 349
8 citations
Jump To
Cite 1 - [2021] QSC 349
Cite 2 - [2021] QSC 349
Cite 3 - [2021] QSC 349
Cite 4 - [2021] QSC 349
Cite 5 - [2021] QSC 349
Cite 6 - [2021] QSC 349
Cite 7 - [2021] QSC 349
Cite 8 - [2021] QSC 349
ORourke v Miller (1985) 156 CLR 342
4 citations
Jump To
Cite 1 - (1985) 156 CLR 342
Cite 2 - (1985) 156 CLR 342
Cite 3 - (1985) 156 CLR 342
Cite 4 - (1985) 156 CLR 342
Police Service Board v Morris & Martin (1985) 156 CLR 397
2 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
R v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) [1979] 1 WLR 1401
1 citation
Jump To
Cite 1 - [1979] 1 WLR 1401
Russell v Duke of Norfolk (1949) 1 All ER 109
1 citation
Jump To
Cite 1 - (1949) 1 All ER 109

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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