Chief Commission of Police v McCann
[2015] VSC 379
•13 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 06874
| CHIEF COMMISSIONER OF POLICE | Plaintiff |
| v | |
| CALUM McCANN | First Defendant |
| and | |
| POLICE REGISTRATION AND SERVICES BOARD | Second Defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2015 |
DATE OF JUDGMENT: | 13 August 2015 |
CASE MAY BE CITED AS: | Chief Commission of Police v McCann & Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 379, First Revision: 17 August 2015; paragraph [3] |
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ADMINISTRATIVE LAW – Judicial review of a decision by the Police Registration and Services Board – Did the Board fail to take a relevant consideration into account? – Public interest – Police Regulation Act 1958 (Vic) ss 70, 71, 76, 86AH, 86AL, 86AM, 86AN, 86AR, 86AQ.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Knowles | Victorian Government Solicitor’s Office |
| For the First Defendant | Mr E White | Tony Hargreaves & Partners |
| For the Second Defendant | Mr T McEvoy | Carroll & Dillon |
HIS HONOUR:
Introduction
Calum McCann, the first-named defendant, is a Senior Constable of Victoria Police. He joined the force in 1996. In 2002 he obtained a Detective position at Altona North Criminal Investigations Unit (CIU). He was later transferred to the Crime Department and then to Keilor Downs CIU. He was promoted to Sergeant in 2011. In early 2012 he was serving at Sunshine Police Station.
On 27 February 2014, following an investigation under s 70 of the Police Regulation Act 1958 (Vic) (‘the Act’), a delegate of the Chief Commissioner of Police found proven a charge that Mr McCann was guilty of disgraceful conduct between 6 March 2012 and 17 July 2012. The conduct in question related to McCann’s involvement in the design, production and sale of stubby holders by the Sunshine Police Station Social Club that the delegate found to depict derogatory and racist references.[1] Following the finding of disgraceful conduct, the delegate determined to dismiss Mr McCann pursuant to s 76(1) of the Act.[2]
[1]Determination of 27 February 2014: Charge – Disgraceful Conduct; Transcript of proceedings before Deputy Commissioner Cartwright 28 February 2014, 4.
[2]Discipline Hearing of Calum McCann – Sanction of 28 February 2014; Transcript of proceedings before Deputy Commissioner Cartwright 28 February 2014, 6.
Mr McCann applied to the Police Registration and Services Board (‘PRS Board’ or ‘the Board’) for review of the delegate’s decision to dismiss him.[3] A hearing was conducted on 12 November 2014. Representatives for both Mr McCann and the Chief Commissioner provided written submissions in advance and made oral submissions at the hearing. On 18 November 2014 the Board set aside the delegate’s decision to dismiss Mr McCann and, in substitution, demoted him to the rank of Senior Constable incremental level 12 and directed that he attend human rights training. The Chief Commissioner now brings an Originating Motion seeking orders from this Court in the nature of certiorari and mandamus, setting aside the decision of the PRS Board and remitting the matter back to the Board for determination according to law. As in the case of Yong Chen,[4] to which I make reference throughout this judgment, the sole ground for judicial review argued by the Chief Commissioner is that the PRS Board failed to have regard to a matter that it was obliged to take into account, namely, ‘the public interest’ and, in particular, the interest of ‘maintaining the integrity of, and community confidence in, the police force’[5].
[3]Pursuant to Police Regulations Act 1958 (Vic) ss 86AH and 86AI
[4]Chief Commissioner of Police v Yong Chen & Anor (2015) VSC 380.
[5]See ss 86AM(1) and 86AM(3) of the Police Regulation and Standards Act 1958 (Vic).
Background
The Sunshine Police Station Social Club was formed in March 2012. Mr McCann was its inaugural president. In March 2012, members of that club including McCann decided to design, produce and sell stubby holders as a means of fundraising. Multiple designs and captions were considered. Ultimately, a design depicting a cartoon ‘mudcat’ fish caught on a hook with the text “Whoever said sunshine brings happiness has never worked here” and “my date of birth is 01/01/?” was selected and produced. The terms ‘mudcat’ and ‘muddie' were used by some officers at the Sunshine Police Station to refer to people of African descent.
The stubby holders were subject to an investigation. A number of officers in the Social Club were charged with breaches of discipline. Mr McCann’s matter was heard and determined by a different delegate to the matters of other Social Club members.[6] McCann’s Hearing Officer, Deputy Commissioner Cartwright, found the stubby holders to depict racist and derogatory references. McCann was charged with being guilty of disgraceful conduct, and this charge was found proven. Deputy Commissioner (D/C) Cartwright considered the disgraceful conduct to be constituted by a number of factors. Firstly, Mr McCann’s involvement in the design, production and sale of the stubby holders, and his influence over members of the force junior to him in this process. Secondly, that he had developed an alternative explanation for the design of the stubby holders to provide to superiors.[7] Thirdly, his failure to dispose of the stubby holders after being told to do so by a superior.[8] Finally his continued refusal, throughout the proceeding before the delegate, to acknowledge the references as racist.[9] Mr McCann was dismissed from the force. He sought review of the decision to dismiss him by the PRS Board.
[6]The matters of other members of the Social Club were charged and determined by Deputy Commissioner Ashton. Mr McCann’s proceeding was heard by Deputy Commissioner Cartwright.
[7]Determination of 27 February 2014: Charge – Disgraceful Conduct; Transcript of proceedings before Deputy Commissioner Cartwright 28 February 2014 p 4.
[8]Determination of 27 February 2014: Charge – Disgraceful Conduct; Transcript of proceedings before Deputy Commissioner Cartwright 28 February 2014, 5.
[9]Determination of 27 February 2014: Charge – Disgraceful Conduct; Transcript of proceedings before Deputy Commissioner Cartwright 28 February 2014, 6.
Although there was some dispute as to the level of Mr McCann’s involvement[10] in the design and distribution of the stubby holders at a hearing before the PRS Board, the review itself was limited to the delegate’s decision to dismiss Mr McCann[11] and was not a review of the charge of disgraceful conduct. Factual findings by the Board in relation to Mr McCann’s involvement were relevant only insofar as they informed the Board as to whether the decision on the penalty was harsh, unjust or unreasonable, and as to the appropriateness of any alternative sanction to be imposed.
[10]That is, whether McCann was the driving force behind the production of the stubby holders, or whether the decision was made jointly by the Social Club Committee.
[11]Pursuant to s 86AH(1)(m) of the Act
The legislative scheme
The Victoria Police Act 2013 (Vic) came into operation on 1 July 2014. On that day the relevant provisions of the Police Regulation Act 1958 were repealed,[12] however, transitional provisions in the 2013 Act provide that the relevant provisions of the 1958 Act continue to apply to determinations of the Chief Commissioner’s delegate and review proceedings before the PRS Board. It is not disputed that the provisions of the 1958 Act apply to the current proceeding.[13]
[12]See Division 1 of Part 16 of the Victoria Police Act 2013.
[13]Section 287 of the Victoria Police Act 2013. See also Schedule 6 of that Act and Item 33 of that schedule.
Section 70 of the Act provides that if the Chief Commissioner believes a member of the force may have committed a breach of discipline he may begin investigation of the matter. If after completing this investigation he reasonably believes the member committed a breach of discipline, the Chief Commissioner or authorised officer may charge that member with a breach of discipline.[14] All charges must be enquired into, and determined by the Chief Commissioner or his delegate. [15]
[14]Section 71(1)
[15]Section 73
If after consideration of all submissions made at an inquiry the charge of breach of discipline is found proven, the Chief Commission or delegate may impose one or more of a number of sanctions as outlined in s 76. One of these sanctions is to dismiss the member.[16]
[16]Section 76(1)
Sections 86AH and 86AI provide that a member of the force may apply to the PRS Board for review of a decision to dismiss the member made pursuant to s 76(1).
Section 86 AN provides that:
(a)on a review of a decision to dismiss a member, the PRS Board must affirm the decision unless the PRS Board is satisfied that the decision is harsh, unjust or unreasonable; and
(b)if the PRS Board is satisfied that the decision is harsh, unjust or unreasonable, the PRS Board may set aside that decision and:
(i)in substitution for that decision, make every other decision or determination that the person who made the decision could have made; or
(ii)refer the matter for determination by the Chief Commissioner in accordance with any direction or recommendations of the PRS Board.
In its review, the Board is obliged by section 86AM(1) to have regard to:
(a) the public interest; and
(b) the interests of the applicant for review.
Section 86AM(3) provides that in section 86 the “public interest includes the interest of maintaining the integrity of, and community confidence in, the force”.[17]
[17]Section 86AM(3).
The PRS Board is bound by the rules of natural justice.[18] It is not bound by the rules of evidence and may inform itself on any matter it sees fit. Reviews are to be conducted with as little formality and technicality as practically permitted by the “requirements of this Act and the proper consideration of the subject matter”.[19]
[18]Section 86AL.
[19]Section 86AQ.
The parties' contentions
On its review, the PRS Board concluded that the delegate’s decision to dismiss Mr McCann was harsh and determined instead to reduced McCann’s rank and require he attend human rights training.
The plaintiff contends that at the time of making the relevant decision the PRS Board failed to take into account a mandatory consideration under the legislation: that is, it failed to take into account ‘the public interest’ as required by s 86AM of the Act. He contends the decision is therefore affected by jurisdictional error, and the remedies sought ought be granted. It is not disputed that if the plaintiff can demonstrate on the balance of probabilities that the Board failed to take the public interest into account then he will have succeeded in establishing jurisdictional error.
The plaintiff’s argument is an inferential one. He submits that I ought draw this inference by reference to the PRS Board’s written reasons for decision which make a single explicit reference to the public interest in the context of requiring Mr McCann to undertake a human rights training course. The plaintiff argues this single reference does not demonstrate active intellectual engagement by the Board, indicating that the Board’s obligation to have regard to the public interest is not satisfied. He further argues that the Act required the Board to regard to the specific aspect of the public interest that is ‘the interest of maintaining the integrity of, and community confidence in, the force’, and this did not occur.
The plaintiff submits that the Board’s jurisdiction to review a decision to dismiss a member is enlivened by the determination that the original decision was ‘harsh, unjust or unreasonable’. He contends that the Act therefore critically required that the Board have regard to the public interest in that determination, as well as in any alternate sanction imposed. He seeks that the Court draw the inference that the Board did not consider the public interest at all in that first critical determination.
The first defendant’s response is that I should not infer that the Board failed to give active consideration to the public interest. Aspects of the public interest, including the ‘integrity and community confidence in the force’ were the subject of comprehensive submissions and were central to Deputy Commissioner Cartwright’s original decision. He argues that it is apparent from the Board’s reasons that it actively considered this material, and that it thus had regard to the public interest as required by the Act.
Did the Board fail to have regard to the public interest?
The hearing
The Board was constituted by its president, Mr L Ross QC and by members of the review division, Mr R Beazley, and Mr A Walsh. Mr McCann was represented by Mr J. Grundy, and Inspector A. Ryan appeared for the Chief Commissioner. Both advocates made oral and written submissions.
The delegate’s original reasons for decision on sanction were central to the review. In his delivery of those reasons, the Deputy Commissioner Cartwright outlined the following overarching considerations:
(T)he High Court in Police Services Board v Morris provides guidance on the objectives of the police discipline system. Put simply, these are to protect the public from the wrongful acts of police officers, to maintain the public confidence in police and maintain the self-esteem of serving police officers.
The Police Manual sets out the matters to be considered when determining any sanction. These are the intentions of the employee when engaging in the conduct which is subject of inquiry; the effects of the conduct in question on the reputation and integrity of Victoria Police; (and) the development of the employees’ higher levels of personal professionalism.[20]
He later provided the following analysis:
The next consideration is the effect of your conduct on the reputation and integrity of Victoria Police. The media and community attention generated by the stubby holder has been considerable. That attention occurred at a time when Victoria Police was already under significant scrutiny in terms of its relationship with young men from the Horn of Africa.[21]
It is of course impossible to quantify the impact that your actions have had, but it is fair to say the representation of Victoria Police has suffered enormous damage. [22]
Behaviour of this sort will cause others to question their judgment and their confidence in other Victoria Police and our commitment to the community. You directly influenced other members who were junior to you in the production of a racist message. You have contributed to the damage of their reputation and the reputation of all members at Sunshine.[23]
[20]Transcript of Discipline Hearing proceedings before Deputy Commissioner Cartwright 28 February 2014, 4.
[21]Transcript of Discipline Hearing before Deputy Commissioner Cartwright 28 Feb 2014, p 5.
[22]Transcript of Discipline Hearing before Deputy Commissioner Cartwright 28 Feb 2014, p 5.
[23]Transcript of Discipline Hearing before Deputy Commissioner Cartwright 28 Feb 2014, 5 - 6.
These reasons were delivered on the fourth day of Mr McCann’s disciplinary hearing and appear in the transcript annexed to Mr Grundy’s written submissions to the Board. The Board indicated at the outset and at numerous points during the review hearing that they had read the transcript and parties’ submissions.[24]
[24]See for example Transcript of PRS Board Review Hearing 12 November 2015, 1, 3, 17.
The Chief Commissioner relied on the delegate’s original reasons. In his written submission Inspector Ryan further referred to the reasons of the delegate, including some of those outlined in [19] above.[25] The Board’s obligation to consider the public interest under the Act is cited under the heading “mandatory considerations”,[26] and Inspector Ryan specifically submitted:
It is crucial to the effective operation of Victoria Police in its role in protecting the Victorian community that it be able to maintain confidence within the community of the integrity of its members. This is the purpose for which internal disciplinary authority is provided for and engaged. The importance of that purpose requires that at times the public interest will prevail over the detrimental effect disciplinary action might have on individual members.
The deleterious effect to public confidence that would be caused by conduct such as that displayed by the Applicant in influencing members who were junior to him … far outweighs the detrimental impact that the sanction of dismissal will personally entail for the Applicant.[27]
His concluding paragraph emphasises:
The sanction of dismissal upholds the expectations of both Victoria Police and the community. In all the circumstances the sanction of dismissal was not harsh…[28]
[25]See Inspector Ryan’s written submissions of 14 July 2014, [9].
[26]Inspector Ryan’s written submissions of 14 July 2014, [8].
[27]Inspector Ryan’s written submissions of 14 July 2014, [10] – [11].
[28]Inspector Ryan’s written submissions of 14 July 2014, [24].
While the written submissions of Mr Grundy did not make reference to ‘the public interest’ in explicit terms, his conclusion urges the Board to formulate a sanction that is considerate, amongst other factors, of:
community expectations whilst embracing the principles of restorative justice[29]
[29]Jeff Grundy’s written submissions of 3 July 2014, 10.
The issue of the parity between Mr McCann’s sanction and the sanctions imposed on other complicit members of the Social Club[30] assumed great significance in the review proceedings. The issue was raised in both parties’ written[31] and oral[32] submissions, and was a focal point of the Board’s considerations. In substance, Mr Grundy submitted that whilst it may appear that stubby holder design ultimately agreed on by the committee originated with Mr McCann, the decision to produce the stubby holders was made jointly and by agreement with numerous members of the Social Club Committee.[33] He thus contended that the dismissal of Mr McCann was harsh in view of the vastly lighter sanctions imposed on other members. Inspector Ryan submitted elements of Mr McCann’s conduct distinguished him from other complicit members, and that from a parity perspective the sanction ought not be considered harsh.[34] As I raised in the hearing of this matter, I see the issue of parity as inherently entwined with the notion of the public interest. I shall return to this in my analysis.
[30]Sanctions imposed by Deputy Commissioner Ashton on other members of the Social Club for whom charges of breach of discipline were found proven ranged from admonishments to transfers and ineligibility for promotion. No member (other than McCann) was dismissed from the force.
[31]Jeff Grundy’s written submissions of 3 July 2014, 9; Inspector Ryan’s written submissions 11.
[32]For example the submissions of Inspector Ryan recorded on the Transcript of the PRS Board Review Hearing 12 November 2014, 4 – 10, and submissions of Mr Grundy recorded on that transcript, 13 – 16.
[33]Transcript of the PRS Board Review Hearing 12 November 2014, 14.
[34]Transcript of the PRS Board Review Hearing 12 November 2014, 7.
The following comments were made by the Board in regard to the more lenient sanctions imposed by D/C Ashton:
this is the dilemma: (D/C Ashton’s) made that decision. We’re confronted with his conclusion. As I say, the public interest has been recognised by Commissioner Ashton by directing that the various people go along to the Human Rights Commission and get a lesson in the way in which they should conduct themselves in relation to matters of race.[35]
Mr Ross later returned to this issue:
It’s a dilemma for this board because we’re very sensitive to the Chief Commissioner’s concern about racism…In some circumstances where it’s blatant and completely and utterly offensive, very, very serious sanctions are necessarily imposed. But we see various examples in the community where the main concern is (a) to bring it to the notice of the community that racism is occurring and to direct people towards programs that make them aware of how hurtful racist comments can be.[36]
And, addressing Mr Grundy, continued:
In this case, we have no hesitation in concluding that underlying this was a form of racism…Unfortunately, or fortunately for your client, there’s this overlying problem that we have of the way in which it was treated. I think it’s fair to say that the Board considers in the circumstances that the absolute disparity of sentence here would produce an injustice[37]
[35]Mr Ross, Transcript of the PRS Board Review Hearing 12 November 2014, 11.
[36]Mr Ross, Transcript of the PRS Board Review Hearing 12 November 2014, 16.
[37]Mr Ross, Transcript of the PRS Board Review Hearing 12 November 2014, 17.
The Board’s written reasons
The Board’s reasons are prefaced by a section titled “documentation examined” which includes transcripts and DVD’s of the discipline hearings, and submissions prepared by both parties.[38] The Board then proceeded to outline Mr McCann’s history with Victoria Police, the relevant conduct, the charge against him, evidence presented at the disciplinary hearing, the finding and sanction imposed by D/C Cartwright, and the sanctions imposed on members by D/C Ashton.[39] Particular attention was devoted to materials included in the disciplinary hearing prosecution brief which pointed to the complicity of other members of the Social Club in the design of the stubby holders. The Board quoted directly from D/C Cartwright’s reasons for sanction[40], and in analysis of that decision found:
Deputy Commissioner CARTWRIGHT would have appeared to place the substantial blame for the production of the stubby holders on the Applicant whereas such a conclusion is not supported by the evidence available to the Board.[41]
[38]PRS Board’s written reasons for decision, 1.
[39]PRS Board’s written reasons for decision, 1 – 6.
[40]PRS Board’s written reasons for decision, 5, referring to Cartwrights reasons for sanction as delivered on the fourth day of McCann’s disciplinary hearing, Transcript of Discipline Hearing 28 February 2014, 4.
[41]PRS Board’s written reasons for decision, 5.
The Board acknowledged Inspector Ryan’s submissions as to parity however concluded that McCann’s circumstances raised “a genuine parity issue”.[42] In what I consider to be a ‘balancing exercise’ (and I shall return to this point shortly), the Board said:
[42]PRS Board’s written reasons for decision, 6.
having regard to their complicity in the mudcat design (the) penalties that were imposed by Deputy Commissioner ASHTON could be categorised as lenient. However the Board considers that in the case of the Applicant it would be harsh and unjust to dismiss him having regard to the penalties imposed on the other Committee members.[43]
It concluded:
The Board, upon consideration of the extensive material, witness statements, emails and findings of Deputy Commissioner CARTWRIGHT has concluded that in this case that the sanction of dismissal was harsh and that the sanction of dismissal be set aside.
The Board found McCann’s conduct was nonetheless worthy of significant sanction, and in lieu of dismissal imposed a reduction of rank, further directing:
The production of the stubby holders had racial connotations and the Board considers that the public interest in this case be served by requiring that the Applicant also attends a course designed by the Victoria Equal Opportunity and Human Rights Commission.[44]
[43]PRS Board’s written reasons for decision, 7.
[44]PRS Board’s written reasons for decision, 7 – 8.
Legal Principles
The relevant legal principles are identical to those in the matter of Yong Chen, and I repeat the principles set out in paragraph [13] of that judgment:
· A failure to have regard to a matter which a decision-maker is bound or obliged to consider constitutes jurisdictional error.[45]
[45]See, for example, Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [71]-[73] and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82].
· The “public interest”, as referred to in s 86AM of the Act, is a relevant consideration. It is a fundamental consideration or element[46] and the Board, in having regard to it, must engage in an active intellectual process[47] both at the point of exercising jurisdiction (i.e. when determining whether the original decision was harsh, unjust or unreasonable – s 86AN(3)) and, if so satisfied, at the point of determining an appropriate sanction.
[46]R v Hunt; ex parte Sean Investments (1979) 180 CLR 322, 324, 329 and 334; R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327, 333; National Retail Association v Fair Work Commission [2014] FCAFC 118, [56].
[47]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGREA 99 [44], see also Tickner v Chapman (1995) 57 FCR 451; Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248.
· The term ‘public interest’ as used in s 86AM(1) of the Act is non-exhaustively defined in s 86AM(3) to include the integrity of, and community confidence in the force. ‘Public interest’ is a notion that ‘has long informed judicial discretion and evaluative judgements at common law’.[48] In the statutory context the term (absent any definition) derives its content from the subject matter, scope and purpose of the enactment in which it appears.[49] In this case it is not in dispute that the Board was obliged to actively consider at least the public interest in the integrity of Victoria Police and community confidence in that organisation.[50]
[48]Hogan v Hinch (2011) 243 CLR 506 [31] (French CJ)
[49]Ibid. See also ibid [69] and [80] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[50]See also Police Services Board v Morris (1985) 156 CLR 397, 412, where Brennan J said ‘The effectiveness of the police in protecting the community rests heavily upon the community’s confidence in the integrity of the members of the police force…The purpose of police discipline is the maintenance of public confidence in the police force…’.
· Any conclusion as to whether the Board has had regard to a relevant consideration is necessarily the product of inference. When determining whether the Board in fact took into account the relevant consideration, the matters to which the Court may have regard including any material the Board had before it at the hearing including the submissions of the parties, transcripts of the hearing before the Board together with the Board’s written reasons. While written reasons may be indicative of whether or not a decision maker has had regard a relevant consideration, they are not necessarily conclusive. A failure to make note of a factor in the written reasons does not necessarily lead to the inference that it has not been considered as required. Similarly, simply referencing a relevant consideration in written reasons will not satisfy an inference that it has been taken into account if the reference is merely cursory.[51]
· A reviewing court should not construe the reasons for a decision under review minutely and finely with an eye keenly attended to the perception of error:
…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[52]
[51]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGREA 99 [44].
[52]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
· The plaintiff bears the onus of proving that the Board did not take into account the public interest.
Analysis
This application concerns neither the adequacy of the Board’s reasons, nor the weight afforded to the notion of the public interest in the Board’s reasoning. To succeed, the plaintiff must demonstrate that the Board failed to engage actively with the public interest at all at the relevant times: that is, at the point of exercising jurisdiction and at the point of determining the appropriate sanction.
The Board’s reasons make a single explicit reference to the public interest in the context of directing that McCann attend human rights training. This reference alone is neither determinative that the Board did have regard to the public interest as required by the Act, nor that it did not. My review extends beyond the Board’s written reasons. In order to evaluate the inference for which the plaintiff contends I must also consider the entirety of the material that was before the Board, including the oral submissions made at the review hearing and evidence of the Board’s engagement with that material.
Ultimately, I am not satisfied that the Board failed to take the public interest into account in their review of the sanction imposed on Mr McCann. As I recognised in Yong Chen, the Board was chaired by a vastly experienced former County Court judge and the legislation guiding the Board’s review is straightforward. Inspector Ryan’s written submissions outlined the public interest as a mandatory consideration in clear terms with both explicit reference to the Act and submissions as to the application of that section to Mr McCann’s circumstances. The Board was provided with these submissions, and made reference to having examined them.[53]
[53]See PRS Board written reasons for decision, 1 ‘Documentation Examined by the Board’.
It is evident that the public interest was at the core of D/C Cartwright’s decision to dismiss Mr McCann: the extracts I cited in paragraph [20] are examples of this. The Board makes numerous references to having considered this material.[54] Its written reasons quote explicitly from D/C Cartwright’s delivery of reasons for sanction.[55] One remark quoted (“You directly influenced other members who were junior to you in the production of the racist message”) deals in my view unequivocally with the issue of the integrity of Victoria Police. Further, that remark in the delegate’s reasons was directly prefaced by a sentence pertaining to community confidence in the force (see paragraph [20] above). By incorporating and analysing this quote in their reasons, I consider that the Board demonstrated active intellectual engagement with an element of the original decision centrally tied to the public interest as defined by the Act.
[54]See PRS Board written reasons for decision, 1 ‘Documentation Examined by the Board’, 5; Transcript of Review Proceeding before the PRS Board 1, 3, 7.
[55]PRS Board written reasons for decision, 5.
I note that that particular extract was cited by the Board as part of their consideration of the parity issue. The Board concluded that D/C Cartwright appeared to have placed disproportionate blame on Mr McCann compared to other complicit members in a manner unsupported by the evidence. It therefore reasoned that there was a “genuine parity issue” in the differential severity of sanctions imposed. It is undisputed that the parity issue was central to the Board’s determination that the decision to dismiss Mr McCann was ‘harsh, unjust or unreasonable’.
As I indicated in argument, it is my view that parity itself is an aspect of the public interest. The Chief Commissioner of Police must be, and must be seen to be, consistent in the sanctions he imposes. Proportionality of sanctioning is not only in the public interest insofar as it ensures fairness and predictability for members facing disciplinary proceedings; it is fundamental to public confidence in the internal disciplinary procedures of Victoria Police and to the Chief Commissioner’s role in maintaining the integrity of the force.
In their written reasons, the Board remarked that the sanctions imposed by D/C Ashton could be categorised as lenient.[56] This evaluative remark is an indication that the Board considered the conduct to be serious, and that those involved deserved to be sanctioned accordingly. The Board also said specifically at the hearing “we have no hesitation in concluding that underlying this was a form of racism…we view this as a serious issue.”[57] In Mr McCann's circumstances, the seriousness of the offence is inherently tied to the deleterious effect on community confidence caused by perceptions of racism in the force. Deputy Commissioner Cartwright was categorical about this in his reasons (see [20] above), and the Board acknowledged this concern[58].
[56]PRS Board written reasons for decision, 7
[57]Transcript of PRS Board review hearing, 17.
[58]Transcript of PRS Board review hearing, 16.
The Act requires a simple balancing process. In its review of whether D/C Cartwright's decision was ‘harsh, unjust or unreasonable’ the Board was required to have regard to a minimum of two factors– the public interest (which includes the interest in maintaining the integrity of and community confidence in the force) and the interests of Mr McCann. The Board's review was conducted against the background of the serious deleterious effect of the impugned conduct on the public confidence of the force. It is against this background that the Board weighed the issue of parity. It is my view that the passage set out at [27] evidences the balancing exercise that occurred. I am therefore unable to draw the inference that the Board failed actively to engage with or consider the public interest at the relevant times.
I am fortified in this conclusion by the specific reference to the public interest in the Board’s reasons when requiring McCann undertake human rights training. This reference is not cursory: it is the justification for that element of the sanction imposed. The purpose of this sanction is transparent. It is, jointly, to educate Mr McCann in a manner that dissuades him from engaging in that kind of disgraceful conduct again, and to demonstrate to the community that action is being taken to improve awareness of racism within Victoria Police. As I have said, the Board spoke specifically of this objective at the review hearing.[59]
[59]See paragraph [25].
For these reasons I am not satisfied that the Board failed to give active consideration to the public interest in its review as required by s 86AM(1). Accordingly, the plaintiff has failed in this application.
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