Norvill v Commissioner of Queensland Police Service & Anor

This appeal turned upon whether the disciplinary regime under Pt 7 Police Service Administration Act 1990 properly construed, conditioned the making of a preliminary decision in the complaints process upon the observance of the rules of natural justice. The Court of Appeal held that it did not.  The structure of the scheme – including its purpose (relevant to the good order of the police service) and the fact that the requirements of natural justice expressly applied to later stages of the decision-making process – led to the conclusion that a preliminary decision (in relation to which that express requirement was absent) was neither expressly nor impliedly conditioned upon natural justice.

Sofronoff P, Fraser JA and Boddice J

10 June 2022

Background

The appellant, Ms Norvill, was a police officer within the Queensland Police Service (“QPS”). [3]. In December 2017, she was suspended from duty following complaints about her conduct. [7]. In March 2019, QPS completed an investigation into those complaints. [9]. A disciplinary proceeding notice was then issued to the appellant, alleging certain misconduct. [10].

Without going into the finer details of the technical procedural history (at [9]–[17]), it is sufficient to note that a decision was made by a delegate of QPS that the appellant would not be placed upon a professional development strategy (under s 7.9 Police Service Administration Act 1990 (“PSAA”)) and that complaints would be referred to a “prescribed officer” under the PSAA. The appellant was not given an opportunity to be heard by that delegate before making those decisions. [13].

The appellant contended to the QPS that the disciplinary proceeding was flawed and she should be given a chance to be heard on whether she should undertake a professional development strategy. [11], [15]. The Assistant Commissioner advised the appellant that he considered the disciplinary notice to be valid and would proceed to hear and determine the complaint. [16].

The appellant brought an application for a statutory order of review in respect of the first respondent’s decision, contending that no valid decision had been made because there had been a breach of the rules of natural justice in making the determination not to impose a professional development strategy. [4].

That application was dismissed, with costs. [3]. The primary Judge found that the decision not to impose that strategy was a preliminary step in the disciplinary process, and there was no requirement to give the applicant an opportunity to make submissions at that stage. [5].

The issue

The appellant appealed against that decision, on the basis that:

1. upon a true construction of the relevant provisions of the PSAA, a decision under s 7.9 (whether to impose a professional development strategy) operates as a condition precedent to the commencement of a disciplinary hearing. [20];
2. given the significance of a decision under s 7.9, the rules of natural justice apply to that decision. [22];
3. the failure to afford the appellant procedural fairness rendered that decision invalid. [6];
4. that invalidity meant that the second respondent (the Assistant Commissioner of the Queensland Police Service) had no power to make a decision under s 7.27 of the Act. [6].

Consideration

Justice Boddice (with whom Sofronoff P and Fraser JA agreed) dismissed the appeal, finding no error in the primary judge’s conclusion. [38]–[39].

The provisions of Pt 7 PSAA support a conclusion that the disciplinary process is a multi-staged one. [27]. A decision under s 7.9 is just the first stage. Later stages follow, in relation to which the PSAA expressly requires a prescribed officer to give the subject officer a notice and afford him or her the opportunity to make written submissions. [31].

As the Act specifically provides for an obligation at a later stage, the absence of a requirement at the earlier stage, is entirely consistent with that decision being a “first step in a multistage process, in respect of which it is not necessary to afford natural justice”. [35]. In relation to the appellant’s submission that a factor in support of a natural justice requirement was the fact that the imposition of a professional development strategy has consequences for the subject officer, which can include financial obligations, Boddice J observed: [37]:

“While an obligation to afford procedural fairness can arise in circumstances where the exercise of a statutory power gives rise to adverse financial or other obligations, a consideration of the provisions of the Act as a whole, and in particular the purposes of Part 7, support a conclusion that that consequence does not warrant implying an obligation to afford procedural fairness at that stage. The imposition of a professional development strategy is relevant to the good order of the [QPS]. The Commissioner has overriding responsibility for the good order of the police service. Such a decision is properly to be determined without the decision-maker having to first afford natural justice to the subject officer.”

Z Brereton of Counsel