Assistant Commissioner Maurice Carless & Anor v Johnson; State of Queensland (Queensland Police Service) v Cousins

This case concerned two related appeals brought by the Queensland Police Service. The appeals turned on the interpretation of s 7.10(2) Police Service Administration Act 1990 which prescribes a process for making a decision to refer a police officer to a “prescribed officer” who has the power to start a disciplinary proceeding. A delegate had referred two police officers to the Office of State Discipline without specifying a particular police officer as the prescribed officer. The referral decisions were successfully challenged in the Trial Division and the Queensland Industrial Relations Commission. Justice Dalton (with whom Wilson J agreed) dismissed the appeals on the basis that the referral decisions were invalid to the extent that they did not identify a particular officer. Justice Boddice agreed in the result, however, considered that it was sufficient to only identify a particular rank of police officer.

Dalton JA and Boddice AJA and Wilson J (ex tempore)

8 March 2023

Background

A delegate of the Commissioner of the Queensland Police Service (the “Commissioner”) purported to refer complaints made against two police officers to a “prescribed officer” within the “Office of State Discipline”: see ss 7.10(2) and 7.11(2) Police Service Administration Act 1990 (the “referral decisions”). A referral decision is a statutory requirement which must be satisfied before a prescribed officer can make a decision to start a disciplinary proceeding against another police officer. When making the referral decisions the delegate did not specify the particular officer who was to be the prescribed officer within the Office of State Discipline.

One police officer obtained a declaration in the Trial Division that the decision of a prescribed officer to start a disciplinary proceeding against him exceeded his authority because the prescribed officer was a rank higher than that specified in the delegate’s referral decision: Johnson v Assistant Commissioner Maurice Carless [2022] QSC 146 (Callaghan J). The other police officer obtained a determination from the Queensland Industrial Relations Commission that the delegate’s referral decision was invalid to the extent it did not refer the complaint to a particular police officer: Cousins v State of Queensland [2022] QIRC 491 (Davis J and O’Connor VP and Merrell DP).

The Commissioner appealed against these decisions. It was argued on behalf of the Commissioner that the responsibility of her delegate to make a referral decision is to decide whether or not the complaint needed to be referred to the Office of State Discipline so a disciplinary proceeding may be started. It is the practice of the service for the police officers within the Office of State Discipline to then assign a police officer of an appropriate rank to start a disciplinary proceeding. This is what occurred in each of these cases. Each appeal turned on the statutory construction of s 7.10(2) Police Service Administration Act 1990 which relevantly provides as follows:

“7.10 Referral of complaint to prescribed officer

[…]

(2)The commissioner must decide whether to refer the complaint to a prescribed officer, having regard to the following matters—

(a)any professional development strategy, or other management action, that has been implemented in relation to the subject officer;

(b)whether implementation of any other professional development strategy would be sufficient to achieve the purposes mentioned in section 7.1(b);

(c)the subject officer’s disciplinary history and service history;

(d)the seriousness of the conduct to which the complaint relates;

(e)whether it is necessary to take disciplinary action against the subject officer to achieve the purposes mentioned in section 7.1(b).”

Whether the referral decisions were invalid

The text of s 7.10(2) provides that the Commissioner or her delegate must make a referral decision which specifies a particular officer who meets the definition of “prescribed officer” under the Police Service Administration Act 1990. A prescribed officer is a police officer who is the Commissioner; an executive police officer; or a commissioned police officer who holds a higher rank than the officer against whom a complaint is made: see ss 2.2 and 7.3 Police Service Administration Act 1990. This construction was supported by the context of s 7.10(2), because the range of sanctions available is dependent upon on the rank of the prescribed officer (i.e. a lower ranking police officer does not have the full range of sanctions available to them): see s 7.35 Police Service Administration Act 1990.

Justice Dalton (with whom Wilson J agreed) held that s 7.10(2) required the Commissioner’s delegate to choose a particular police officer who is a prescribed officer and refer the complaint to that person who is then vested with the statutory power of starting a disciplinary proceeding. Justice Dalton observed that whilst it would be desirable to also refer to the rank of the prescribed officer, nothing in the text of s 7.10(2) would make such a referral invalid and the rank of a particular officer is easily ascertainable. Justice Boddice agreed in the result, however, considered that a referral decision only needs to refer to the rank of the prescribed officer. So, where a referral decision is made, only a police officer of the specified rank may start a disciplinary proceeding and become “the” prescribed officer.

Disposition

The appeals were dismissed with costs.

D Kerr