SUPREME COURT OF QUEENSLAND

CITATION:	Norvill v Commissioner of the Queensland Police Service & anor [2021] QSC 133	
PARTIES:	JACQUELINE NORVILL 
(applicant)
v
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(first respondent)
MAURICE CARLESS, ASSISTANT COMMISSIONER OF THE QUEENSLAND POLICE
(second respondent)	
FILE NO/S:	BS 6319 of 2020	
DIVISION:	Trial Division	
PROCEEDING:	Application for judicial review 	
ORIGINATING COURT:	Supreme Court at Brisbane	
DELIVERED ON:	4 May 2021 (delivered ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	4 May 2021	
JUDGES:	Rafter AJ	
ORDERS:	1.	Application dismissed.
2.	Applicant pay the respondents’ costs. 	
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW –
REVIEWABLE DECISIONS AND CONDUCT – REVIEW
OF PARTICULAR DECISIONS – where the applicant was suspended from duty as a police officer after the Assistant Commissioner issued a Disciplinary Proceeding Notice alleging misconduct – where a delegate of the first respondent considered the matter under ss 7.9 and 7.10 of the Police Service Administration Act 1990 (Qld) and decided that the applicant would not be placed on a professional development strategy – where the applicant seeks orders setting aside the decision –  where the applicant claims the rules of natural justice have been breached as prior to any disciplinary proceedings a decision under s 7.9 is required –  where the respondents claim the decision not to impose a professional development strategy is not a reviewable decision because it is not final – where the respondents claim that the applicant is afforded procedural fairness through the disciplinary process – whether the requirements of procedural fairness apply at the stage of the process when the Commissioner is considering whether to impose a professional development strategy on the subject officer

Police Service Administration Act 1990 (Qld), s 7.1, s 7.3, s 7.9, s 7.10, s 7.14, s 7.15, s 7.16, s 7.17, s 7.26, s 7.28, s 7. 29, s 7.30, s 7.32, s 7.35. 

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited
Annetts v McCann (1990) 170 CLR 596, cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited 
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, cited
	
COUNSEL:	M Black for the applicant
M D Nicolson for the first and second respondents
	
SOLICITORS:	Gnech and Associates Lawyers for the applicant
Queensland Police Legal Service Unit for the first and second respondents	

 

[1]	HIS HONOUR: By this application for a statutory order of review filed on 12 June 2020 the applicant seeks orders setting aside a decision of the first respondent, whereby it was determined that a professional development strategy would not be imposed pursuant to s 7.9(2) Police Service Administration Act 1990 (Qld) (“the Act”).  The applicant also seeks consequential orders.

[2]	The applicant submits that when a disciplinary complaint comes to the Commissioner’s notice, she is required under s 7.9 to decide whether to impose a professional development strategy on the subject officer.  The applicant submits that a valid decision under s 7.9 is a condition precedent to any disciplinary referral or disciplinary proceedings.

[3]	It is submitted that there was no valid decision under s 7.9 because the Commissioner breached the rules of natural justice in making the determination.  It is therefore submitted that the subsequent disciplinary referral under s 7.10 and consequential disciplinary proceedings are invalid.

The factual background

[4]	The applicant is a police officer with the Queensland Police Service (QPS).  On about 30 December 2017 the applicant was suspended from duty as a police officer after certain complaints were made about her conduct.  She remains suspended from duty.  There were criminal charges against the applicant in about December 2017 but those charges were subsequently withdrawn following a justice mediation process.

[5]	On about 8 March 2019 the QPS completed an investigation regarding the complaints against the applicant.  On 11 November 2019 Assistant Commissioner Mickelson issued a Disciplinary Proceeding Notice alleging certain misconduct based on the complaints that had been made against the applicant.

[6]	It was alleged that the applicant failed to discharge duties imposed upon her faithfully and according to law as a member of the QPS and that she entered the private residence of Brendan Williams with whom she had been in a relationship in the night-time and damaged his property.

[7]	On 27 December 2019 the applicant through her solicitors put a written submission to Assistant Commissioner Mickelson contending, inter alia, that the disciplinary proceeding was flawed and should be discontinued and the applicant was ready and willing to participate in a professional development strategy.

[8]	On 29 January 2020, Assistant Commissioner Mickelson advised the applicant that he was retiring from the QPS effective 21 February 2020 and it was unlikely he would conclude the disciplinary decision before retirement.  On 7 February 2020 a delegate of the first respondent reconsidered the matter under ss 7.9 and 7.10 of the Act after representations from the applicant.  The delegate of the first respondent decided that the applicant would not be placed on a professional development strategy under s 7.9 of the Act.

[9]	Also on 7 February 2020, the delegate decided that the complaints regarding the applicant would be referred to a “prescribed officer” under s 7.10 of the Act.  The applicant was not given an opportunity to be heard by the delegate before the decisions of 7 February 2020 were made.

[10]	On 5 March 2020 the QPS advised the applicant’s solicitors that the second respondent had issued a new Disciplinary Proceeding Notice.  On 9 March 2020 the new Disciplinary Proceeding Notice dated 5 March 2020 was sent to the applicant’s solicitors.  On 17 April 2020 the applicant’s solicitors wrote to the QPS contending, inter alia, that the Disciplinary Proceeding Notice should be withdrawn and the applicant should be given a chance to be heard on a fresh consideration of whether she should undertake a professional development strategy.

[11]	On 27 May 2020 the second respondent advised the applicant that he considered the disciplinary proceeding notice was valid and intimated that he would proceed to hear and determine the disciplinary complaint.  The disciplinary proceedings are presently in abeyance pending the decision on this application for a statutory order of review.

The relevant provisions of the Police Service Administration Act

[12]	The main purposes of the discipline process for police officers are set out in s 7.1 of the Act which provides:

7.1 Main purposes of part
The main purposes of this part are—
(a)	to provide for a system of guiding, correcting, rehabilitating and, if necessary, disciplining officers; and
(b) 	to ensure appropriate standards of discipline are maintained within the service to—
(i) protect the public; and
(ii) uphold ethical standards within the service; and
(iii) promote and maintain public confidence, and officers’ confidence, in the service.
[13]	Section 7.9 of the Act provides:
7.9 Implementation of professional development strategies by commissioner
(1) 	This section applies when the complaint mentioned in section 7.2 is received by the commissioner, regardless of whether it was first recorded by the CCC.
(2)	 The commissioner must consider whether to impose a professional development strategy on the subject officer.
(3) 	The commissioner may impose a professional development strategy under this section—
(a) to reduce the risk of recurrence of similar conduct; or
(b) to improve the subject officer’s performance; or
(c) for any other purpose.
(4) 	The professional development strategy must be implemented, in a reasonable way, as soon as practicable after the ground for disciplinary action arises.
Note—
See also section 7.35(3) in relation to the professional development strategy being taken into account by a prescribed officer deciding the disciplinary sanction to be imposed on the subject officer.
(5)	 In this section— recorded see section 7.7.

[14]	The definition of professional development strategy is contained in s 7.3 which provides:
professional development strategy means a requirement that the subject officer do 1 or more of the following things—
(a) 	     undertake mentoring for a stated period not longer than 6 months;
(b) 	undertake closer supervision for a stated period not longer than 6 months;
(c)	 comply with additional reporting obligations for a stated period not longer than 6 months;
(d)	     complete internal training;
(e) 	complete external training or professional development, at the expense of the service or the subject officer;
(f) 	undertake counselling, whether provided within the service or externally, at the expense of the service or the subject officer;
(g)	      receive guidance;
(h)	undertake a temporary reassignment of duties for a stated period not longer than 6 months;

Note—
See also section 7.5(1) in relation to a temporary reassignment of duties.

(i) 	undertake or complete another program, development or strategy, at the expense of the service or the subject officer and with the subject officer’s agreement;
(j)	anything else prescribed by regulation.

[15]	Section 7.10 of the Act provides:
7.10 Referral of complaint to prescribed officer	
(1)   This section applies if—
(a) 	the complaint mentioned in section 7.2 has been received by the commissioner; and
(b) 	the commissioner has considered under section 7.9 whether to impose a professional development strategy.
(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).
[16]	The applicant submits that there is a strong presumption that a statutory power that affects a person’s rights or interests is regulated by the requirements of natural justice.  It is submitted that a decision about whether or not to impose a professional development strategy directly affects the subject officer’s rights, interests or obligations because any professional development strategy is a relevant consideration in referring a complaint to a prescribed officer.

[17]	Moreover, it is submitted that a professional development strategy is relevant to any future decision about an appropriate disciplinary sanction pursuant to s 7.30 or s 7.35(3)(c) of the Act.

[18]	The respondents submit that a decision pursuant to s 7.9(2) of the Act, not to impose a professional development strategy, is not a reviewable decision because it is not a final decision.  The respondents submit that the applicant is afforded procedural fairness through the disciplinary process.

[19]	The issue for determination is whether the requirements of procedural fairness apply at the stage of the process when the Commissioner is considering, as required by s 7.9(2) of the Act whether to impose a professional development strategy on the subject officer.  The disciplinary framework is contained in Part 7 of the Act.  The Act was amended by the Police Service Administration (Discipline Reform) and Other Legislation Amendment Act 2019 which inserted a new Part 7 dealing with the discipline process for police officers.

[20]	Division 2 contains ss 7.9-7.14 which are preliminary provisions for starting disciplinary proceedings. Division 3 relates to abbreviated disciplinary proceedings.  Division 4 provides the process for hearings by prescribed officers.  Division 5 contains the provisions for disciplinary sanctions.

[21]	The Act provides in s 7.32(a) that in conducting the disciplinary proceeding the prescribed officer must observe the rules of natural justice.

[22]	There are provisions within the disciplinary framework in Part 7 that expressly state that the subject officer must be given specified information.  For example, in Division 3 dealing with abbreviated disciplinary proceedings, a prescribed officer may offer to impose a disciplinary sanction or professional development strategy on the subject officer. An offer may only be made if the Crime and Corruption Commission has agreed to the making of the offer. However, before the agreement of the Crime and Corruption Commission is sought, the prescribed officer must comply with the requirements in s 7.17(2) and (3) of the Act.  By these provisions the prescribed officer must give the subject officer a written notice stating the details of the complaint and alleged ground for disciplinary action.  The subject officer is given the opportunity to make a written submission addressing the complaint or what disciplinary sanction or professional development strategy the subject officer would accept if an offer were made under s 7.16. 

[23]	The subject officer may at any time ask the Commissioner to consider making an offer under s 7.16. These provisions apply to the disciplinary proceeding commenced against the applicant under Division 4. 

[24]	The disciplinary proceeding against the applicant has been commenced under Division 4.  The process includes the subject officer being given the opportunity to make a written submission to show why disciplinary action should not be taken. Where the disciplinary charge or another ground for disciplinary action is established, the prescribed officer must give the subject officer a proposed sanction notice stating, inter alia, the disciplinary action or professional development strategy the prescribed officer proposes to impose. The subject officer has the right to respond. In Re Minister for Immigration and Multicultural Affairs; Ex-parte Miah McHugh J explained that the presence or absence of certain factors may be relevant to whether the rules of natural justice are excluded or limited.  These factors include whether the subject decision is preliminary or final.  The requirements of natural justice are less likely to apply to preliminary decisions.

[25]	In Ainsworth v Criminal Justice Commission,  Mason CJ, Dawson, Toohey and Gaudron, JJ said “It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’.”

[26]	I consider that the decision made under s 7.9(2) of the Act not to impose a professional development strategy is a preliminary step in the disciplinary process.  The respondents were not required to give the applicant an opportunity to make submissions at that stage.  The applicant is given procedural fairness throughout the disciplinary process itself.  

Orders

[27]	Accordingly, I order that:
1.	The application be dismissed. 
2.	The applicant pay the respondents’ costs.