Chandler v O'Sullivan

[2000] QSC 305

SUPREME COURT OF QUEENSLAND

File No 194 of 2000

[2000] QSC 305

BETWEEN:

Darryl J Chandler

Applicant

AND:

James Patrick O’Sullivan

First Respondent

AND:

Barry Ffrench

Second Respondent

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:	6 September 2000
HEARING DATE:	4 September 2000
ORDER:	Application dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – LEGISLATION – application to review – interpretation of certain provisions of the Police Service Administration Act 1990 – whether respondent had jurisdiction or power – propriety of the exercise of power – propriety of the exercise of a discretion
COUNSEL:	Mr JS Douglas QC with Mr ANS Skoien for the applicant. Mr PJ Flanagan for the respondents.
SOLICITORS:	Gilshenan and Luton for the applicant. Queensland Police Service for the respondents.

1. The applicant, a Senior Constable of Police stationed at the Townsville Water Police Station, applied for promotion by way of appointment to Officer in Charge (Water Police) Cairns with the rank of Sergeant. The first respondent, the Commissioner of the Police Service, had previously determined that all police officers seeking appointment to supervisory or management positions must have completed a ‘Management Development Program’ (MDP). The position for which the applicant applied was such a position. The applicant has not completed that course which went to the only one of the six applicants who had.

2. The applicant applied to have the decision reviewed under s 9.3 of the Police Service Administration Act 1990 (the Act) and the second respondent confirmed the appointment.

3. The applicant then applied to this Court under the Judicial Review Act 1991 for a review of the first respondent’s determination that completion of the MDP is a prerequisite for appointment to supervisory or management position is void, invalid and contrary to law and that applying it involved, as a requirement in all cases, an improper fetter on the first respondent’s discretion.

4. It is necessary to consider the statutory framework in which the decision complained of was made. By s 4.8(1) of the Act the first respondent is responsible for the efficient and proper administration, management and functioning of the police service. By sub-section (2) that responsibility includes responsibility for a number of matters, including:-

“(i)	qualifications for offices within the service and duties attaching to such offices;
(j)	promotion or demotion of officers and staff members;
(k)	training and development of members of the service”.

1. By s 4.8(3) the commissioner is:-

   “authorised to do, or cause to be done, all such lawful acts and things as the commissioner considers to be necessary or convenient for the efficient and proper discharge of the prescribed responsibility”.

2. Section 4.9(1) provides that in discharging the prescribed responsibility the commissioner may give and cause to be issued such directions as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service.

[7] So far as appointments such as that in issue here are concerned, s 5.2(2) of the Act
provides that decisions to appoint:-

“must be made by fair and equitable procedures that –

(a)	include inviting applications and selection on the basis of the merit of applicants;
(b)	prevent unjust discrimination, whether in favour of or against the person”.

1. Section 5.2(5) defines the term “merit” in this way:

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

(a)	the integrity, diligence and good conduct of the officer; and
(b)	the potential of the officer to discharge the duties of the position in question; and
(c)	the industry shown by the officer in performance of the duties of office in the course of the officer’s career; and
(d)	the physical and mental fitness of the officer to perform the duties of the position in question”.

1. Section 5.2(6) of the Act specifies a number of factors to be taken into account “for the purpose of determining the potential of an officer to discharge the duties” of position. These include:-

“(c)	the ability, aptitude, skill, knowledge and experience determined by the commissioner to be necessary for the proper performance of the duties of the position in question;
(d)	any relevant academic, professional or trade qualifications of the officer.”

1. The evidence establishes that the imposition of the requirement to complete the MDP was a response to criticism of the police service and particularly the management, training and promotion system. This commenced in the 1989 “Report of the Commission of Inquiry pursuant to Orders in Council” (the Fitzgerald Report) through subsequent reports by the then Public Sector Management Commission, the Criminal Justice Commission (two reports) and an external review of the Queensland Police Service which endorsed the requirement as addressing problems identified in the police promotions system. There can be no doubt as to the relevance of the course to the discharge of supervisory or management responsibilities in the police service or as to the good faith which led to the imposition of the requirement.

[11] The statutory provisions referred to provide sufficient power for the Commonwealth to make determination complained of. The evidence establishes it was relevant, reasonable and done in good faith by the first respondent in discharge of the responsibility conferred on the commissioner by s 4.8 and is within the power conferred by s 5.2(6)(c).

1. It is the terms of this statutory regime which distinguishes this case from the line of authorities relied on by the appellant, epitomised by Ford v Legal Aid Commission of Queensland [1999] 1 QdR 267 where it was held that the rigid application of guidelines was a failure to properly exercise a discretion. Here the commissioner acted within the authority conferred by the statute.

2. I dismiss the applications.