Chief Commissioner of Police v HDB

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2023 05201

CHIEF COMMISSIONER OF POLICE	Plaintiff
v
HDB (a pseudonym)[1]	First Defendant
– and –
POLICE REGISTRATION AND SERVICES BOARD	Second Defendant

[1]On 3 November 2023 Gray J ordered that the first defendant is to be referred to by the pseudonym ‘HDB’.

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2024
DATE OF JUDGMENT:	8 August 2024
CASE MAY BE CITED AS:	Chief Commissioner of Police v HDB & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 465

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ADMINISTRATIVE LAW – Judicial review – Police officer dismissed from Victoria Police after finding that he had breached conflict of interest policy – Police officer had consensual sex with a woman he had interviewed in relation to a charge of unlawful assault – Police officer was the investigating officer in relation to the charge of unlawful assault and was responsible for preparation of prosecution brief – Police Registration and Services Board set aside dismissal decision, finding charge not proven – Chief Commissioner of Police sought judicial review of Board’s decision alleging jurisdictional error and error of law on the face of the record – Board’s decision that charge not proven based on erroneous construction of conflict of interest policy – Board correctly concluded that decision was harsh, unjust or unreasonable – Dismissal decision failed to comply with a statutory precondition for exercise of power of dismissal – Dismissal decision took into account irrelevant consideration – Whether Court should exercise discretion to refrain from granting certiorari – Whether utility in granting relief – Whether application for review of dismissal decision should be remitted for hearing by a differently constituted Board – Decision of Board quashed and application for review remitted for hearing by differently constituted Board.

Victoria Police Act 2013 ss 60, 61, 125, 126, 127, 129, 130, 131, 132, 146, 151, 152.

Supreme Court (General Civil Procedure) Rules 2015 r 56.01.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Bennett SC with Mr M Garozzo	Clayton Utz
For the First Defendant	Mr E White	Tony Hargreaves & Partners
For the Second Defendant	No appearance	Russell Kennedy Lawyers

HIS HONOUR:

Introduction

On the evening of 14 February 2022 the first defendant (‘HDB’) met a woman (‘M’) at a hotel in Warrnambool. They chatted, consumed alcohol and later that evening, had consensual sex. At face value this was a fairly unremarkable encounter save for one important qualification. On 14 February 2022 HDB was a serving police officer and the investigating officer in respect of a charge of unlawful assault against M. He had interviewed M on 21 November 2021 and had been directed to prepare the prosecution brief for the unlawful assault charge. This brief had almost been completed by 14 February 2022.

HDB was charged with a breach of discipline under s 125(1)(c) of the Victoria Police Act 2013 (‘the Act’). He was charged with a breach of the Victoria Police – Conflict of Interest Policy for failing to restrict his involvement with M where there was an actual conflict of interest. Following a hearing before a disciplinary inquiry officer (‘DIO’) HDB was dismissed. He then made application to the Police Registration and Services Board (‘the Board’) for a review of the dismissal decision. The Board concluded that the DIO had misconstrued and misapplied the conflict of interest policy. In particular, the Board concluded that the DIO erred in concluding that HDB had an actual conflict of interest on the evening of 14 February 2022. The Board concluded that HDB had a potential conflict of interest which he had managed in accordance with the conflict of interest policy. The Board concluded that the charge that HDB had breached the conflict of interest policy was not proven and that HDB’s dismissal was harsh, unjust and unreasonable. The Board ordered that HDB be reinstated.

By an application brought pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 the Chief Commissioner seeks orders in the nature of certiorari quashing the decision and order of the Board, together with an order remitting HDB’s application to the Board for rehearing in accordance with law. I have concluded that the Board erred in its construction of the conflict of interest policy. Contrary to the Board’s finding, HDB breached the policy. His social and sexual interaction with M on the evening of 14 February 2022 involved a real conflict with his professional duties and responsibilities and was an actual conflict of interest. He breached the policy by failing to avoid the conflict of interest.

The Board’s erroneous construction of the policy is an error of law on the face of the record which enlivens the Court’s power to grant certiorari and mandamus. The power to grant certiorari is discretionary. There are a number of considerations which weigh against granting certiorari. Foremost amongst these is my finding that HDB’s dismissal was unjust and unreasonable. The DIO failed to comply with a statutory precondition for the exercise of the power of dismissal under the Act by failing to inquire into and determine the charge that HDB had breached the conflict of interest policy which was operative on 14 February 2022. Further, the DIO’s decision was unreasonable because the DIO took into account clause 7 of a conflict of interest policy which did not come into operation until August 2022.

Notwithstanding my finding that the dismissal decision was unjust and unreasonable I have concluded the Board’s decision should be quashed. The Board’s erroneous construction of the conflict of interest policy underpinned its conclusion that the charge of breach of discipline was not proven and that HDB should be reinstated. There is utility in remitting HDB’s application for review of the dismissal decision to a differently constituted Board for rehearing. The Board has a broad discretion as to what relief should be granted. The Board will be required to consider afresh the exercise of that discretion. Upon remittal, the Board, acting in accordance with law, will be required to exercise its discretion in light of the findings set out in this judgment that:

(i) HDB breached the conflict of interest policy operative on 14 February 2022; and

(ii) HDB’s dismissal was harsh, unjust or unreasonable.

Statutory framework

Section 60(1) of the Act provides that from time to time the Chief Commissioner may issue, amend and revoke instructions for the general administration of Victoria Police and for the effective conduct of the operation of the police.

Section 61 provides that all members of Victoria Police personnel must comply with the Chief Commissioner’s instructions.

Section 125(1)(c) provides that a police officer commits a breach of discipline if he or she fails to comply with the Chief Commissioner’s instructions.

Section 126(1) provides that if the Chief Commissioner reasonably believes that a police officer may have committed a breach of discipline, the Chief Commissioner may begin an investigation of the matter.

Section 127(1) provides that if after conducting a preliminary investigation, the person authorised to conduct an inquiry reasonably believes that a police officer has committed a breach of discipline, the person may charge the officer with the commission of that breach of discipline.

Section 129 provides that the Chief Commissioner or a person authorised by the Chief Commissioner to conduct an inquiry must inquire into and determine a charge.

Section 130(1) provides that the Chief Commissioner may authorise any police officer or any person employed under the Public Administration Act 2004 to inquire into and determine a charge.

Section 131(1) provides that a police officer who is charged with a breach of discipline may appear at the inquiry into the charge or may be represented by a person other than a legal practitioner.

Section 131(3) provides:

(3) At an inquiry—
(a) subject to this section, the procedure of the inquiry is at the discretion of the person conducting it; and
(b) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit; and
(c) the person conducting the inquiry is not bound by the rules of evidence but may inform himself or herself in any way he or she sees fit; and
(d) the person conducting the inquiry is bound by the rules of natural justice.

Section 132(1) provides:

(1) If, after considering all the submissions made at an inquiry, the person conducting the inquiry finds that the charge has been proved, the person conducting the inquiry may make one or more of the following determinations—
(a) to reprimand the police officer or protective services officer;
(b) to adjourn the hearing of the inquiry into the charge—
(i) on the condition that the officer be of good behaviour for a period not exceeding 12 months; and
(ii) on any other conditions specified in the determination in accordance with section 132A;

(c) to impose a fine not exceeding an amount that is 40 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004;
(d) to impose a period, not exceeding 2 years, during which the officer will not be eligible for promotion or transfer;

(e)       to reduce the officer's rank or seniority;
(f)        to reduce the officer's remuneration;
(g)       to transfer the officer to other duties;
(h)       to dismiss the officer.[2]

[2](emphasis original).

Part 8 of the Act provides for appeals and reviews. A police officer who has been dismissed by the Chief Commissioner, or a person authorised by the Chief Commissioner, on the basis of a breach of discipline, may apply to the Board for a review of that decision under s 146(1)(m) of the Act. Section 151(1) of the Act provides that when conducting a review the Board must have regard to the public interest and the interest of the applicant for review. Pursuant to s 152(3) the ‘public interest’ includes the interest in maintaining the integrity of, and community confidence in, Victoria Police.

When reviewing a decision to dismiss a police officer, s 152(2) of the Act provides that the Board must affirm the decision unless the Board is satisfied that the decision is harsh, unjust or unreasonable. Pursuant to s 152(3)(b)(i) if the Board is satisfied that the decision is harsh, unjust or unreasonable, it may set aside the decision to dismiss the police officer and, in its place, make any other decision or determination that the person who made the decision could have made. Alternatively, pursuant to s 152(3)(b)(ii) the Board may set aside the decision and refer the matter to the Chief Commissioner in accordance with any other directions or recommendations the Board may give. Pursuant to s 152(3)(b)(iii) the Board may order the Chief Commissioner to reinstate the dismissed police officer. Pursuant to s 165 the Chief Commissioner must give effect to an order or decision of the Board on review.

Background

The factual background to the present proceeding is not contentious. On 14 and 15 November 2021 there were a series of incidents involving two sisters, ‘C’ and ‘K’ and a third party, ‘M’. Around midnight on 14 November 2021 C allegedly grabbed K around the neck and scratched her. The following afternoon C and M attended K’s mother’s house where K resided. M allegedly assaulted K by shoving her in the chest. C and M then left the house by car. K followed them in her car and allegedly deliberately crashed her vehicle into the rear of their vehicle.[3]
[3]Victoria Police Discipline Inquiry Transcript, 28 March 2023, p 7 L 14–30 (‘Discipline Inquiry Transcript’).

K was charged with a number of offences and was also the respondent to a family violence safety notice.[4] M was charged with assault. HDB was the informant for the charges laid against K and M.[5] HDB interviewed M on 21 December 2021. He explained to her that she would be charged with unlawful assault, that she would probably need to go to court and that she would probably be eligible for a diversion order because she had no criminal history.[6] HDB was responsible for preparing the brief of evidence, charge and summons in respect of the alleged assault by M. By 14 February 2022 the brief of evidence in respect of M’s charge had nearly been completed but was not yet finalised.[7]
[4]Ibid p 8 L 3–4.
[5]Ibid p 9 L 22–23.
[6]Ibid p 10 L 30 – p 11 L 5.
[7]Ibid p 11 L 22–27.

On the evening of 14 February 2022 HDB attended Rafferty’s Tavern in Warrnambool with a fellow police officer. M was also in attendance with a female friend and approached HDB. He had been drinking and was affected by alcohol.[8] The four of them sat down at a table. They spoke about ‘stuff’, ‘general chit chat’. There was no discussion of the pending charge of assault against M.[9] HDB believes that they exchanged telephone numbers.[10] HDB left Rafferty’s Tavern and started walking home. Half way to his home either he made or received a call from M following which she picked him and his friend up in her car and drove them to HDB’s house.[11] HDB invited M into his home and shortly thereafter had sexual intercourse with her. M left the house shortly thereafter.[12] At the time HDB was extremely drunk.[13]
[8]Ibid p 14 L 5–9, L 18.
[9]Ibid p 14 L 22–24.
[10]Ibid p 15 L 10.
[11]Ibid p 16 L 13–17.
[12]Ibid p 17 L 14.
[13]Ibid p 17 L 5.

When HDB woke the following morning he knew straight away that he had ‘stuffed up’. ‘I knew that I was still in charge of putting together her brief and basically I knew that there was – there’s no way around it, that I had to go straight in and just pretty much tell them what had occurred.’[14] On the morning of 15 February 2022 HDB attended Warrnambool Police Station and made full disclosure to a superior officer about the events of the previous evening. The completion of the brief of evidence for M’s assault charge was allocated to another officer.[15] HDB was not subsequently required to give evidence in the criminal proceedings involving M, K or C.[16]
[14]Ibid p 18 L 1–5.
[15]Ibid p 20 L 16–17.
[16]Ibid p 20 L 23–30.

On 5 December 2022 HDB was charged with a breach of discipline under s 125 of the Act. The particulars of the charge are as follows:

On 14 February 2022 you were off duty when you attended Rafferty’s Tavern in Warrnambool with another off duty police member, Senior Constable AB.
You and AB were approached by M. You knew M from a family violence incident you attended while working, in November 2021. You interviewed M for unlawful assault and were required to prepare a brief of evidence.
You and M conversed, had drinks and exchanged phone numbers. Later M offered to drive you and AB to your residential address – you accepted this offer.
At your residence you invited M inside and you engaged in consensual sexual intercourse with her. Shortly thereafter, M left your residence.
On 15 February 2022 you self-reported this conflict of interest to Acting Senior Sergeant CD.
Conclusion
Your conduct as particularised demonstrates that you breached:
· The Victoria Police Manual – Professional and Ethical Standards; in that you contravened the organisational values of Integrity, Leadership, Professionalism and Respect.
· The Victoria Police Manual – Conflict of Interest; in that you did not restrict your involvement with M, where there was an actual conflict of interest.
Your conduct, as particularised, is a breach of discipline in that you failed to comply with the Chief Commissioner’s instructions – section 125(1)(c) Victoria Police Act 2013.[17]

[17]Discipline Charge Notice, 5 December 2022, CB 648–649 (‘Discipline Charge Notice’).

A DIO conducted a hearing in relation to the charge on 28 March 2023, 4 April 2023 and 18 May 2023. On 2 June 2023 the DIO published reasons for decision for dismissing HDB. The DIO concluded that both the charge of breach of VPM – Professional and Ethical Standards and breach of VPM – Conflict of Interest were proven.

It is unnecessary to address the DIO’s decision with respect to the breach of VPM – Professional and Ethical Standards. The finding that the charge based on VPM – Professional and Ethical Standards was proven was subsequently overturned by the Board and there is no challenge to that part of the Board’s decision. For the purposes of the present proceeding the relevant part of the DIO’s decision is that which concerns the breach of VPM – Conflict of Interest.

It is common ground that on 14 February 2022 the VPM – Conflict of Interest, as amended on 2 June 2021 was in force (June 2021 Policy). Relevant sections of this policy are annexed to this judgment marked “A”. The June 2021 Policy was amended on 11 August 2022 (August 2022 Policy). Some wording of the June 2021 Policy was incorporated into the August 2022 Policy. Relevant sections of the August 2022 Policy are annexed to this judgment marked “B”. The August 2022 Policy included a new section, Part 7: Personal and Intimate Relationships. The DIO’s decision includes the following under the heading ‘Conflict of interest policy’:

I have had regard to the Chief Commissioner’s instruction of conflict of interest. Part 7 of the VPM – Conflict of Interest, which pertains to personal or intimate relationships relevantly provides as follows:
The overarching principles regarding all types of relationships are as follows:
– Victoria Police has a responsibility to ensure that employees respect professional boundaries and do not misuse the trust or power of their position or exploit the vulnerability of a person.
– Victoria Police employees are free to engage in consensual personal or intimate relationships.
– Victoria Police has a responsibility to ensure a safe and fair workplace for all employees.
Further:
…Where a personal or intimate relationship is identified as an actual, potential or perceived conflict of interest it must be declared and managed accordingly.
Additionally, it provides:
Employees must not engage in any personal or intimate relationship with a person reasonably described as vulnerable, including: Victims of, or witnesses to a crime, family violence or other trauma, who the employee met because of their employment.
While I note that the VPM does not directly address intimate relationships with persons of interest or accused persons, I consider that they would also fall within the purview of the VPM as vulnerable persons. There is clearly an imbalance of power where a person has been spoken to by police and either consideration is being given as to whether they will face criminal charges or they are facing criminal charges in a pending proceeding before a court. It does not matter that Ms M instigated the interaction, the Police Officer, being the one who holds the position of power, should have known not to respond to Ms M’s advances. This said, in the present context, Ms M was both a person of interest and a victim/witness in the context of the incident on 21 November 2021. As such, I consider that Ms M is a person reasonably described as vulnerable, who the Police Officer met because of their employment. I consider that the Police Officer did not restrict his involvement with Ms M, in circumstances where there was an actual conflict of interest, being that he was in the process of compiling a criminal brief pertaining to Ms M for a criminal charge.[18]

[18]Discipline Inquiry Report, 2 June 2023, at 6-7, CB 657-658 (‘Discipline Inquiry Report’) (emphasis original).

Under the heading ‘Findings on particulars and charge’ the DIO stated:

After considering the Police Officer’s answers to my questions, in addition to his admissions to all aspect of the disciplinary charge, I am comfortably satisfied that the Police Officer’s conduct constitutes a breach of discipline in that he failed to comply with the Chief Commissioner’s instructions in contravention of section 125(1)(c) of the VPA, in the manner I have described above, that is, he contravened the Victoria Police values of professionalism, leadership and integrity as set out in the VPM Professional and Ethical Standards, and that he engaged in an intimate relationship with a vulnerable person, in circumstances where there was an actual conflict of interest by reason of being the Police Officer charged with investigating her conduct, in contravention of the VPM Conflict of Interest. This finding is based on the charge that is before me.[19]

[19]Ibid at 7, CB 658.

The DIO concluded as follows:

I am concerned that the Police Officer’s conduct in having an intimate relationship with an offender that he was processing for criminal conduct is at odds with these two purposes and that whenever the nature of the Police Officer’s conduct is disclosed in a criminal proceeding that community confidence in and the reputation of Victoria Police may be diminished and that concerns may be raised about the integrity and high standards of conduct of Victoria Police. As such, despite the many mitigating factors, I have formed the view that the Police Officer’s conduct is incompatible with continued service. I cannot identify any other determination that would preserve the reputation and integrity of Victoria Police.
For this reason, it is with deep regret that I have formed the view that, as a result of the singular instance of poor judgement which is the subject of this inquiry, the Police Officer’s continued service is untenable. Accordingly, I have determined to dismiss the Police Officer.[20]

[20]Ibid at 18, CB 669.

HDB filed an application with the Board under s 146(1)(m) of the Act to review the dismissal. The application was heard on 27 July 2023. The Board published reasons for its decision on 5 September 2023. The Board concluded that the charge of breach of discipline was not proven and that, accordingly, the determination to dismiss HDB was harsh, unjust and unreasonable.[21] The Board’s decision records the following conclusion in respect of the charge:

In conclusion we consider:
(a)The Applicant has not engaged in any breach of discipline (s.125). The VPMs have been misunderstood and misapplied.
(b)The Applicant was compliant with and in conformance to the VPM provisions dealing with conflict of interest which applied at the time, being the Old VPM-COI and clause 7 of the VPM-P&ES. This is because the Applicant avoided any actual conflict of interest. He identified, declared and managed the potential conflict of interest by divesting himself of any police decision-making, duty or function in respect of Ms M. At no time did he undertake any professional duties or functions in relation to her after the commencement of the personal relationship.
(c)Further, the Applicant’s conduct was unambiguously in conformance to the current, considered and detailed New VPM-COI and its policies regarding lawful sexual activity. He properly identified, declared and managed the potential conflict of interest by divesting himself of any professional role.
(d)Further, in all the relevant circumstances, his conduct was not a misuse of the trust or power of his police position and Ms M was not ‘vulnerable’ in the circumstances.[22]

[21]Police Registration and Services Board Decision, 5 September 2023, at 52 [191] (‘Board’s Decision').

[22]Ibid at 47 [170] (emphasis original).

In addition to the matters set out above, the Board made the following findings:

(iii) The Disciplinary Charge Notice did not provide adequate particulars of a charge that HDB had breached the June 2021 Policy. As a result the DIO applied the wrong conflict of interest policy by applying the August 2022 policy rather than the June 2021 Policy. This constituted a breach of Victoria Police’s procedural fairness obligations because HDB was not put on notice of an allegation that his conduct constituted a breach of the August 2022 policy.[23]
[23]Ibid at 24-25 [77]–[82], 34 [125] and 35 [131].

(iv) HDB did not breach the June 2021 Policy because he did not have an actual conflict of interest on 14 February 2022 when he had sex with M. Rather, he had a potential conflict of interest and complied with the June 2021 Policy ‘by identifying, declaring and managing that potential conflict of interest to avoid it becoming an actual conflict of interest. This was achieved because he rapidly identified, declared and then managed the potential conflict of interest by divesting himself of the relevant professional duties, thus ensuring his personal interests and professional responsibilities did not come into conflict’.[24]
[24]Ibid at 30 [105] (emphasis original).

(v) The DIO acted beyond power because the DIO did not inquire into and determine a charge of breach of the June 2021 Policy, but rather inquired into and determined whether HDB had breached the August 2022 policy.[25]

(vi) HDB’s conduct did not constitute a breach of the August 2022 policy. The Board considered the question of whether HDB had breached the policy was relevant to a ‘holistic consideration of whether the dismissal was harsh, unjust or unreasonable’.[26] The Board considered that the August 2022 policy confirmed ‘the freedom of police officers to engage in lawful sexual activity, and to then help employees to recognise that in doing so, they might create a conflict of interest that must then be managed’.[27] The Board concluded that under the August 2022 policy, ‘the only limitation is to ensure that “police do not misuse the trust or power of their position and exploit the vulnerability of a person and that they must declare and manage any resulting conflict of interest”’.[28] The Board concluded that HDB had complied with this obligation by self-reporting and ceasing to have any ongoing involvement in the preparation of the brief of evidence in respect of M’s assault charge.[29]

[25]Ibid at 34-35 [126]–[131].

[26]Ibid at 33 [121].

[27]Ibid at 39 [141].

[28]Ibid at 40 [146] (emphasis original).

[29]Ibid at 39 [141] (emphasis original).

The Board made the following order:

The Board orders that the decision of Ms Berkovic dated 2 June 2023 to find proven the charge of fail to comply with the Chief Commissioner’s instructions, as particularised in the Discipline Charge Notice dated 8 March 2023 [sic] be set aside pursuant to s. 152(3)(b)(i) and in substitution for it, the following decision is made:
That the charge of breach of discipline (s. 125(1)(c)) is not proven.[30]

[30]Ibid at 52 [192] (emphasis omitted). The reference in the order to 8 March 2023 is a mistake. The Discipline Charge Notice is dated 5 December 2022.

By an amended originating motion dated 23 January 2024 the Chief Commissioner seeks an order in the nature of certiorari to quash the decision and order of the Board. The Chief Commissioner also seeks an order in the nature of mandamus remitting HDB’s application for review to a differently constituted Board to be determined according to law. The Chief Commissioner relies upon three grounds in support of the application for judicial review:

(vii) The Board fell into jurisdictional error because its finding that the dismissal of HDB was harsh, unjust or unreasonable, and the path of reasoning by which that finding was reached, was illogical, irrational and/or legally unreasonable, such that the resulting decision was vitiated; and/or

(viii) The Board also fell into jurisdictional error, and made an error of law on the face of the record, when it misconstrued the nature of its jurisdiction by:

(a) treating the power to ‘set aside the decision’ in accordance with section 152(3)(b)(i) of the VP Act as a power to review and set aside the Discipline Charge finding made by the plaintiff in addition to the decision to dismiss HDB; and/or

(b) otherwise treating the plaintiff’s finding in respect of the Discipline Charge as a decision which it had power to review and substitute under section 152(3)(b)(i); and/or

(ix)The Board fell into jurisdictional error, and made an error of law on the face of the record, when it adopted an erroneous construction of the CCI titled ‘Victoria Police Manual – Conflict of Interest’ (as in force at the time of HDB’s conduct) to the effect that the meaning of ‘actual conflict of interest’ under that CCI included only conflicts arising in the exercise of a person’s professional duties.

Did the Board misconstrue the June 2021 Policy?

The June 2021 Policy is a subordinate instrument made pursuant to powers conferred upon the Chief Commissioner by s 60 of the Act. The principles relating to the interpretation of legislation are applicable to the interpretation of subordinate instruments.[31] The interpretation of the June 2021 Policy must begin with a consideration of the text itself.[32] All words in the policy must be given meaning and effect.[33]
[31]Collector of Customs v Agfa–Gevaert Ltd (1996) 186 CLR 389 at 398.
[32]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ).
[33]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71].

The June 2021 Policy includes the following direction:

Victoria Police employees must, wherever possible, avoid conflicts of interest that may arise between responsibilities as employees and private interests. Where a conflict of interest cannot be avoided it must be identified, declared, assessed and managed appropriately.[34]

This is an unambiguous direction in mandatory terms, that employees must avoid conflicts of interest wherever possible. A failure to comply with this direction is a breach of discipline under section 125(1)(c) of the Act.

[34]Victoria Police Manual, Conflict of Interest Policy, 2 June 2021, at 2, CB 785.

The June 2021 Policy distinguishes between an actual conflict of interest, a potential conflict of interest and a perceived conflict of interest:

·An actual conflict of interest is where there is a real conflict between an employee’s professional duties and responsibilities and existing private interests.
·A potential conflict of interest arises where an employee has private interests that could conflict with their professional duties.
·A perceived conflict of interest can exist where a third party could form the view that an employee’s private interest appears to influence the performance of their duties, now or in the future, whether or not that influence actually exists.

The Board concluded that HDB did not have an actual conflict of interest at any time between the evening of 14 February 2022 and the morning of 15 February 2022 when he self-reported. Rather, the Board concluded that ‘…there was a potential conflict of interest, in that if he had not acted immediately to divest himself of the professional duties, and went on to make decisions as the informant, then his personal and professional interest would have conflicted at that point in time’.[35] Further, the Board stated:

The Board does not consider that the Applicant’s mere existence as the named informant on Ms M’s file for a period of several hours after he had sex with her amounts to an actual conflict of interest nor an act of impropriety in the circumstances of this matter… What is critical in this case is that he didn’t exercise any further professional duties or responsibilities, but instead immediately identified, declared and managed the potential and perceived conflict of interest, as was required by the VPM.[36]

[35]Board’s Decision at 24 [71] (emphasis omitted).

[36]Ibid at 27 [94]–[95] (emphasis original).

The Board concluded that there is an actual conflict of interest where there is a conflict between the performance of duties and an existing private interest. As HDB did not perform any duties in relation to M following his self-reporting on the morning of 15 February 2022, the Board considered that there was no conflict between HDB’s performance of duties and an existing private interest.

HDB was charged with a breach of the June 2021 Policy ‘in that you did not restrict your involvement with M, where there was an actual conflict of interest’. Whether HDB’s conduct on the evening of 14 February 2022 constituted an actual conflict of interest requires consideration of the meaning of the phrase ‘an employee’s professional duties and responsibilities’. The reference to ‘an employee’s professional duties and responsibilities’ supports a finding that a conflict of interest is not confined to a conflict arising from the performance of duties during rostered working hours. Rather, an actual conflict of interest may arise as a result of a conflict between an employee’s duties and responsibilities which are operative outside of normal working hours.

Section 50 of the Act provides that before a police officer performs any duty or exercises any power as a police officer, he or she must take an oath of office or make an affirmation of office and subscribe that oath or affirmation. The oath or affirmation for police officers is in the form set out in form 1, schedule 2 of the Act:

I [insert name] [swear by Almighty God/do solemnly and sincerely affirm] that I will well and truly serve our Sovereign as a police officer in Victoria in any capacity in which I may be appointed, promoted, or reduced to, without favour or affection, malice or ill will for the period of [insert period] from this date, and until I am legally discharged, that I will see and cause the peace to be kept and preserved, and that I will prevent to the best of my power all offences, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all the duties legally imposed on me faithfully and according to law.

Section 51(a) of the Act provides that a police officer who has taken and subscribed the oath or made and subscribed the affirmation under s 50 of the Act has ‘the duties and powers of a constable at common law’. In State of New South Wales v Tyszyk[37] Campbell JA stated:

A most important aspect of the duties of a constable concerns preventing and detecting crime (Glasbrook Bros v Glamorgan County Council [1925] AC 270 at 277; Thomas v Sawkins [1935] 2 KB 249; Rice v Connolly [1966] 2 QB 414 at 419). Constables’ duties concerning crime extend to collecting evidence concerning crime and keeping it for as long as is necessary (R v Lushington; ex parte Otto [1894] 1 QB 420 at 423; Betts v Stevens [1910] 1 KB 1 at 7; Ludwig v Public Trustee [2006] NSWSC 890; (2006) 170 A Crim R 460 at [53]-[55] and cases there cited), enforcing the criminal law (R v Metropolitan Police Commissioner; ex parte Blackburn [1968] 2 QB 118; Rush v Commissioner of Police [2006] FCA 12; (2006) 150 FCR 165 at [91]; Hinchcliffe v Commissioner of Policeof the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308 at [33]-[35]) and protecting property from criminal injury (Glasbrook v Glamorgan Council at 277; Rice v Connolly at 419). However in the present case there is no suggestion that the activities of the two constables were connected in any way with their powers and duties concerning crime.[38]

[37][2008] NSWCA 107.

[38]Ibid at [84] (Campbell JA) (emphasis altered); see also Director of Public Prosecutions v Kaba (2014) 44 VR 526 at 547-548 [68]–[69] (Bell J); Rice v Connolly [1966] 2 QB 414 at 419 (Lord Parker CJ).

Campbell JA identified ‘enforcing the criminal law’ as one of the common law duties of a constable. On the evening of 14 February 2022 HDB had a duty to enforce the criminal law by virtue of being the informant in relation to M’s charge of unlawful assault and having responsibility for the preparation of the prosecution brief. HDB’s social and sexual interaction with M on the evening of 14 February 2022 was in direct conflict with his duty to enforce the criminal law.

In Sim v Rotherham Metropolitan Borough Council[39] (‘Sim’) Scott J addressed the distinction between a teacher as a professional employee and a worker required to work within a defined spread of hours under direction:

It is, perhaps, one of the hallmarks of professional employment, as opposed to employment in non-professional capacities, that professionals are employed to provide a particular service and have a contractual obligation to do so properly. A worker in a car factory or shop may clock off at 5.30pm or, perhaps, work late on an overtime basis. An employed professional does not usually have an overtime option. He is employed to provide a particular service to proper professional standards. His contract may require his attendance in an office or other place of work for particular hours but his contractual obligations are not necessarily limited to work done within those hours. So, too, teachers’ duties are not necessarily confined to their obligation to be on school premises during school hours and to take their classes during those hours.[40]

This passage was cited with approval by Ryan J in Independent Education Union of Australia v Canonical Administrators, Barkly Street Bendigo & Ors.[41]The reasoning in Sim as to the professional nature of a teacher’s employment applies equally to a police officer’s employment. The professional duties and responsibilities of a police officer apply at all times, not only during the hours when a police officer is rostered on to work.

[39][1987] 1 Ch 216.

[40]Ibid at 248.

[41](1998) 157 ALR 531 at 552.

A police officer is both the holder of a statutory office and an employee.[42] As an employee a police officer is subject to an implied duty of fidelity not to engage in conduct which ‘impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee’.[43] The operation of this duty of fidelity is not limited to the performance of duties during the hours a police officer is rostered on for work. HDB’s social and sexual interaction with M on the evening of 14 February 2022 was in direct conflict with his duty of fidelity.
[42]Cf Schneider v Warrnambool City Council [2021] VSC 337.
[43]Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81 (Dixon and McTiernan JJ); Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 190 [30] (French CJ, Bell and Keane JJ), 201–202 [63] (Kiefel J).

As a result of HDB’s conduct on the evening of 14 February 2022 he had to be removed as the informant in respect of M’s assault charge. This was not the result of a voluntary act by HDB managing a potential conflict of interest. Rather, it was an inevitable consequence of HDB having placed himself in a situation where there was a real conflict between his professional duties and responsibilities and the private interest arising from his social and sexual interaction with M on the evening of 14 February 2022.

Contrary to the decision of the Board, a police officer’s professional duties and responsibilities are not constrained by the performance of duties during rostered working hours. On the evening of 14 February 2022 HDB had professional duties and responsibilities arising from:

(x) The work he had undertaken in the preparation of the prosecution brief in relation to M’s charge of unlawful assault; and

(xi)His status as a potential witness in any prosecution if the charge was contested.

HDB’s duties and responsibilities included a responsibility not to engage in conduct which might prejudice the prosecution of the charge of assault against M. Plainly, as HDB acknowledged when giving evidence before the DIO, there was a risk of prejudice to the prosecution as a result of his conduct on the evening of 14 February 2022:
If I’m taking someone to court and I’m involved in an outside relationship and I go to court and I give evidence, it’s going to be destroyed by defence. And obviously with – I guess with, like, the community and stuff like that, there’s a pretty bad perception and it’s quite a bad look and it’s pretty unprofessional.[44]

[44]Discipline Inquiry Transcript, 4 April 2023, p 24 L 7–12.

As soon as HDB had any interaction with M on the evening of 14 February 2022 he was in a position of actual conflict of interest. The conflict of interest became more significant once he engaged in sexual activity with M. HDB could have avoided an actual conflict of interest by simply advising M that he did not think it was appropriate that he have any interaction with her because he was the informant on her charge of assault. HDB breached the Chief Commissioner’s direction to avoid an actual conflict of interest. Consequently he breached s 125(1)(c) of the Act. The Board erred by concluding that HDB’s conduct on the evening of 14 February 2022 did not constitute an actual conflict of interest.

Was the Board’s finding that the dismissal of HDB was harsh, unjust or unreasonable, illogical, irrational and/or legally unreasonable?

The Chief Commissioner contends that the Board fell into jurisdictional error because its finding that the dismissal of HDB was harsh, unjust and unreasonable and the path of reasoning by which that finding was reached, was illogical, irrational and/or legally unreasonable, such that the result and decision was vitiated.

Counsel for the Chief Commissioner submitted that the Board had effectively decided that HDB ‘had done nothing wrong’.[45] Counsel submitted that this was ‘… an illogical finding which infects the outcome of this decision’.[46] Counsel also drew attention to the penultimate paragraph in the Board’s decision:

We commend the Applicant for his fortitude and resilience given these events and wish him well for his future career.[47]

Counsel submitted that for the Board to have commended HDB in circumstances where he had engaged in a clear conflict of interest and had acted inappropriately was illogical.[48]

[45]Transcript of Proceedings, 16 May 2024, p 43 L 7–9, p 44 L 31 (‘T’).

[46]T 43 L 9–10.

[47]Board’s Decision at 52 [194].

[48]T 46 L 22–25.

In Minister for Immigration and Border Protection v SZVFW[49] Nettle and Gordon JJ (with whom Kiefel CJ agreed) stated:

…The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.[50]

[49](2018) 264 CLR 541.

[50]Ibid at 572-573 [80] (citations omitted) (emphasis omitted).

The Board’s power to make any order, other than an order affirming the decision of the DIO, was contingent upon it being satisfied that HDB’s dismissal was harsh, unjust or unreasonable. The primary basis upon which the Board concluded that HDB’s dismissal was harsh, unjust and unreasonable was its finding that the charge of breach of discipline was not proven.[51] This finding was underpinned by the Board’s erroneous construction of the June 2021 Policy which led it to conclude that HDB did not engage in conduct which amounted to an actual conflict of interest on the evening of 14 February 2022.
[51]Board’s Decision at 52 [191].

In addition to the Board’s finding that the discipline charge was not proven, the Board made two additional findings which provide a logical basis for its conclusion that HDB’s dismissal was harsh, unjust and unreasonable. First, the Board concluded that HDB was denied procedural fairness. Second, the Board concluded that the DIO had acted beyond power. Both these findings provide an ‘evident and intelligible justification’[52] for the Board’s satisfaction that the dismissal was harsh, unjust and unreasonable. Further, there is a logical, albeit erroneous, connection between the Board’s finding that HDB had not breached the June 2021 Policy and its finding that the charge of breach of discipline was not proven. The Board’s erroneous construction of the June 2021 Policy does not satisfy the threshold of legal unreasonableness. Although the Board made an error in the construction of the June 2021 Policy this does not constitute an abuse of the statutory power conferred upon it by the Act to determine whether HDB’s dismissal was harsh, unjust or unreasonable.
[52]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 573 [82] (Nettle and Gordon JJ).

Did the Board misconstrue the power conferred upon it by s 152(3)(b)(i)?

The Chief Commissioner submits that the Board had no power under s 152 of the Act to set aside the DIO’s finding that the charge was proven. I reject this submission. If the Board is satisfied that a decision to dismiss a police officer is harsh, unjust or unreasonable the Board has power to set aside a decision and in substitution for it make any other decision or determination that the DIO could have made. The DIO could have made a determination that the discipline charge was not proven. Section 132(4) makes express provision: ‘If the person conducting the inquiry finds that the charge has not been proved’.

The power conferred on the Board to make any determination that the DIO could have made includes the power to make a determination that a discipline charge is found not proven.

Of the three grounds relied upon by the Chief Commissioner in support of the application for orders in the nature of certiorari, I have upheld the third ground, namely, that the Board adopted an erroneous construction of the June 2021 Policy to the effect that the meaning of ‘actual conflict of interest’ included only conflicts arising in the exercise of a person’s professional duties.

The Board’s erroneous construction of the June 2021 Policy is an error of law on the face of the record

In Wingfoot Australia Partners Pty Ltd v Kocak[53] the High Court stated:

…Error of law on the face of the record constitutes a separate and distinct basis on which the Supreme Court can make an order in the nature of certiorari to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power under a State statute. That basis for the Supreme Court making an order in the nature of certiorari is not entrenched by the Commonwealth Constitution; its application can be excluded by statute. Where it is not excluded, however, it applies independently of jurisdictional error. That is to say, where error of law on the face of the record is not excluded by statute as a basis for making an order in the nature of certiorari, and where an error of law on the face of the record is found, an order in the nature of certiorari can be made so as to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power irrespective of whether the error of law also constitutes a breach of a condition of the valid exercise of that power.[54]

[53](2013) 252 CLR 480.

[54]Ibid at 492 [26] (citations omitted).

It is not necessary to make a finding as to whether the Board’s erroneous construction of the June 2021 Policy constitutes a jurisdictional error. The Board’s erroneous construction of the June 2021 Policy is an error of law on the face of the record which enlivens the Court’s power to make an order in the nature of certiorari to quash the Board’s decision and order.

The Court’s power to make orders in the nature of certiorari is discretionary.[55] The basis for denying certiorari on discretionary grounds must be strong since ‘there is a basic presumption that appropriate relief should follow upon a finding of unlawfulness’[56] against a public body. Relief may be refused if the identified error could not undermine the essential legal basis that underpins the decision.[57]
[55]Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at 89 [5] (Gleeson CJ), 105–109 [49]–[58] (Gaudron and Gummow JJ), 136–137 [145]–[150] (Kirby J) and 144 [171]–[172] (Hayne J); Re McBain; Ex Parte Australia Catholic Bishops Conference (2002) 209 CLR 372 at 394 [21] (Gleeson CJ), 410 [80] (Gaudron and Gummow JJ), 415–423 [95]–[113] (McHugh J) 454 [223]–[224] (Kirby J) and 465–466 [262]–[265] (Hayne J); Mann v Medical Practitioners Boards [2004] VSCA 148 at [17].
[56]Essendon Football Club v Chief Executive Officer of the Australian Sports Antidoping Authority (2014) 227 FCR 1 at 92 [476] (Middleton J).
[57]SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190, [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [88]–[89] (Kirby J).

Section 146(1)(m) of the Act confers power upon the Board to review a decision of a DIO to dismiss an officer pursuant to s 132(1)(h). Section 152(2) provides that on the review the Board must affirm the decision unless satisfied that the decision is harsh, unjust or unreasonable. Pursuant to s 152(3)(b), the Board’s satisfaction that the dismissal decision is harsh, unjust or unreasonable is a precondition for the Board setting aside the decision. The essential legal basis of the Board’s decision was its conclusion that HDB’s dismissal was harsh, unjust or unreasonable. The primary basis upon which the Board concluded that the dismissal was harsh, unjust and unreasonable was its finding that the charge of breach of discipline was not proven. This finding was underpinned by the Board’s erroneous conclusion that on the evening of 14 February 2022 HDB did not have an actual conflict of interest.

The essential legal basis of the Board’s decision was its conclusion that HDB’s dismissal was harsh, unjust or unreasonable. If the Board’s decision is quashed and the proceeding is remitted to the Board for rehearing, a question arises as to whether upon a rehearing the Board would be bound to conclude, applying a correct construction of the June 2021 Policy, that HDB’s dismissal was harsh, unjust or unreasonable. If the Board would be bound to come to this conclusion, this would weigh in favour of the Court exercising its discretion to refrain from granting certiorari.

In Bostik (Australia) Pty v Gorgevski (No 1)[58] the Full Court of the Federal Court stated, in respect of the phrase ‘harsh, unjust or unreasonable’:

These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated.[59]

The termination of employment of a Victoria Police officer for a breach of discipline requires the exercise of statutory power by the Chief Commissioner or a person authorised by the Chief Commissioner. A decision to terminate the employment of a police officer for a breach of discipline may be unjust within the meaning of the phrase harsh, unjust or unreasonable in s 152(3) of the Act if the termination is the result of an exercise of power which does not comply with a prescribed condition for the exercise of that power.[60] A decision to terminate may be unreasonable within the meaning of the phrase harsh, unjust or unreasonable if the termination of employment is a result of an exercise of power which takes into account an irrelevant consideration.

[58](1992) 36 FCR 20.

[59]Ibid at 28 (Sheppard and Heerey JJ).

[60]Kirkham v Industrial Relations Commission & Anor (2015) 121 SASR 471 at 473 [5] (Kourakis CJ).

Section 129(1) of the Act provides that a person authorised by the Chief Commissioner to conduct an inquiry, ‘must inquire into and determine a charge’. HDB was charged with a breach of the June 2021 Policy by reason of this being the policy in existence on 14 February 2022. The Board correctly concluded that the DIO acted beyond power in dismissing HDB.[61] I have set out earlier in this judgment the extracts from the discipline inquiry report where the DIO sets out provisions of the August 2022 Policy which supported the DIO’s conclusion that HDB had engaged in an intimate relationship with a vulnerable person, in circumstances where there was an actual conflict of interest by reason of HDB being responsible for investigating her conduct. It is clear from the text of the DIO’s decision that the policy relied upon by the DIO for the purpose of finding the charge proven was the August 2022 Policy. The DIO did not comply with the statutory condition regulating the power to dismiss because the DIO failed to inquire into and determine the charge that HDB had breached the June 2021 policy.
[61]Board’s Decision at 34 [126]–[127].

Although the DIO did not comply with the statutory direction in s 129(1) to inquire into and determine the charge, the DIO’s decision to dismiss HDB was not invalid and of no legal effect. In Project Blue Sky Inc v The Australian Broadcasting Authority[62] the High Court stated:

An act done in breach of a condition regulating the exercise of statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[63]

[62](1998) 194 CLR 355.

[63]Ibid at 388–389 [91] (McHugh, Gummow, Kirby and Hayne JJ).

The DIO’s failure to inquire into and determine the charge that HDB breached the June 2021 policy does not invalidate the DIO’s determination to dismiss HDB. The Board’s jurisdiction to review a DIO’s decision to dismiss an officer is premised on the dismissal decision having legal effect unless set aside by the Board. The Board does not have power to inquire into the validity of the DIO’s decision. The sole jurisdictional precondition to affirming or not affirming the DIO’s decision is the Board’s satisfaction as to whether the decision was harsh, unjust or unreasonable. The DIO’s failure to comply with the statutory direction to inquire into and determine the charge that HDB breached the 2021 Policy does not have the consequence that the dismissal decision is invalid and of no legal effect. However, it does have the consequence that the decision to dismiss HDB was unjust.

A Victorian police officer is both the holder of a statutory office and an employee.[64] Victoria Police’s right to terminate the employment of a police officer is governed by Part 7 of the Act. The statutory right of termination is quite prescriptive. A police officer cannot be terminated in accordance with Part 7 of the Act unless:
[64]Cf Schneider v Warrnambool City Council [2021] VSC 337.

(xii) The officer has been charged with a breach of discipline (s 127);

(xiii) The Chief Commissioner or a person authorised by the Chief Commissioner has inquired into and determined the charge (s 129); and

(xiv) The person conducting the inquiry finds that the charge has been proven (s 132).

Inquiry into and determination of the charge of the alleged breach of discipline is a statutory precondition to the exercise of the statutory power of termination under Part 7 of the Act. In Kirkham v Industrial Relations Commission & Anor[65] Kourakis CJ stated:

A failure to comply with a statutory obligation in the exercise of a power to dismiss an employee will, generally speaking, be capable of rendering the dismissal unjust. That is because, again as a general rule, justice is done through compliance with the law. However, it may transpire that the statutory breach has not resulted in an “unjust” dismissal. The term “unjust” in this context requires an evaluative and normative judgment based on community standards of workplace justice. For that reason, it is not possible to be overly prescriptive about the denotation of the term. In general terms where the breach is trivial or could not possibly affect either the substantial merits of the dismissal or the fairness of the procedure, it is unlikely to render the dismissal unjust.[66]

[65](2015) 121 SASR 471.

[66]Ibid at 483 [38] (Kourakis CJ).

In Kirkham a corrections officer was dismissed by the Chief Executive Officer of the Department of Correctional Services on the grounds of serious misconduct warranting dismissal pursuant to s 54 of the Public Sector Act 2009 (SA) (‘PSA’). Prior to the dismissal the Chief Executive Officer of the Department of Correctional Services had not complied with s 54(3) PSA which provided:

A public sector agency may not terminate the employment of an employee under sub-section (1) on any ground unless the agency–
(a)has informed the Commissioner of the grounds on which it is proposed to terminate the employment of the employee and the processes leading up to the proposal to terminate; and
(b)has considered any advice given by the Commissioner within 14 days about the adequacy of the processes.

Mr Kirkham sought judicial review of a decision of the Full Commission of the South Australian Industrial Relations Commission on the ground that the Commission erred in holding that a failure to comply with s 54(3) did not render the dismissal invalid. The Full Court of the South Australian Supreme Court held that the Commission had made a jurisdictional error but declined to grant relief on discretionary grounds. Kourakis CJ stated:

…The failure to comply with section 54(3) of the PSA could not reasonably be found to have caused any injustice to Mr Kirkham. There was no reason, in terms of process, to refrain from dismissing Mr Kirkham on the failure to truthfully answer ground. Moreover the other grounds amply justified his dismissal. The non-compliance with section 54(3) PSA is insignificant.[67]

[67]Ibid at 484 [43] (Kourakis CJ).

There is a significant difference between s 54(3) PSA and the obligation under s 129 of the Act for a DIO to inquire into and determine a charge. Kourakis CJ described the purpose of s 54(3) PSA as being to ensure that the relevant public sector agency provides the Commissioner with sufficient information for the Commissioner to be able to give meaningful advice pursuant to s 54(3)(b).[68] The obligation imposed by s 54(3) PSA is procedural rather than substantive. In contrast, the obligation under s 129 of the Act to hear and determine a charge is at the heart of the statutory regime regulating disciplinary action which may be taken against a police officer for a breach of discipline. On no view could the DIO’s non-compliance with s 129 be described as insignificant.
[68]Ibid at 476 [13] (Kourakis CJ).

Further, if the DIO had inquired into and determined the charge that HDB breached the June 2021 Policy rather than the August 2022 Policy the DIO may have determined that HDB should not be dismissed. The DIO expressed her ‘deep regret’ in making the decision to dismiss HDB. The DIO referred to ‘many mitigating factors’ and ‘the singular instance of poor judgement’. If the DIO had excluded the August 2022 Policy from her deliberations, the DIO’s decision to dismiss HDB could realistically have been different.

The DIO’s decision was unreasonable because the DIO took into account an irrelevant consideration, namely, clause 7 of the August 2022 Policy.[69] Clause 7 of the August 2022 policy was an irrelevant consideration because the DIO was precluded by s 129(1) of the Act from taking into account any policy other than that which was the subject of the charge.[70] This constitutes a further discrete basis for finding that HDB’s dismissal was harsh, unjust or unreasonable.
[69]Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541 at 572-573 [78]–[81] (Nettle and Gordon JJ).
[70]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J).

I have set out earlier in this judgment the Board’s finding that HDB’s dismissal was harsh, unjust or unreasonable by reason of a denial of procedural fairness. This finding was plainly correct. The DIO relied upon the terms of the August 2022 Policy which were not in existence on 14 February 2022. The disciplinary charge notice did not contain adequate particulars of the charge. HDB was denied an opportunity to address matters relied upon by the DIO, particularly clause 7 of the August 2022 policy, which fell outside of the charge that he breached the June 2021 Policy. This constituted a denial of procedural fairness.[71] A finding that an employee has been denied procedural fairness may support a finding that their dismissal was harsh, unjust or unreasonable. However, where a dismissal is based on an employee’s misconduct, the nature of the misconduct may have the consequence that the dismissal is not harsh, unjust or unreasonable even though the employee has been denied procedural fairness.[72] The fact that HDB was denied procedural fairness does not automatically translate into a finding that his dismissal was harsh, unjust or unreasonable.
[71]Shearer v Chief Commissioner of Police [2024] VSC 181 at 18-19 [58], Maund v Racing Victoria Ltd [2016] VSCA 132 at 14 [44].
[72]Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 (Brennan CJ, Dawson and Toohey JJ), 434–435 (McHugh and Gummow JJ); KL Dowling & Co v Employee Relations Commission & McCallum [1998] 1 VR 251 at 272 (Phillips JA).

For the sake of completeness I shall address two further matters which were considered by the Board in reaching the conclusion that HDB’s dismissal was harsh, unjust or unreasonable. The first of these matters concerns public interest in police officers self-reporting an actual or potential conflict of interest. The second matter concerns the question of whether HDB’s conduct would have constituted a breach of the August 2022 Policy if that policy had been operated in February 2022.

The Board placed weight upon the public interest in encouraging declarations of conflicts of interest: ‘The decision to charge the Applicant and then dismiss him sends a powerful signal to every other police officer and those advising them to conceal… which is a perverse outcome’.[73]
[73]Board’s Decision at 50 [182].

It is in the public interest to encourage police officers who have a conflict of interest to self-report. It is equally in the public interest that all Victorian police officers are aware of their obligations to avoid a conflict between their professional duties and responsibilities and existing private interests. Any disciplinary action taken against a police officer who reports a conflict of interest may act as a disincentive to other police officers to self-report. However, this potential consequence does not provide justification for Victoria Police to refrain from taking disciplinary action if there has been a breach of the conflict of interest policy.

HDB’s conduct on 14 February 2022 constituted a breach of the June 2021 Policy. His decision to promptly self-report is a matter which may properly be taken into account by the Board on the question of whether the dismissal was harsh, unjust or unreasonable. However, the Board’s characterisation of the decision to charge HDB as ‘punitive and shame based’[74] was unwarranted.
[74]Ibid at 50 [186].

The Board considered that the August 2022 Policy was relevant ‘to our holistic consideration of whether the dismissal was “harsh, unjust or unreasonable” as we consider that the Applicant would not have breached the New VPM-COI even if it was in force at the time’.[75]
[75]Ibid at 33 [121].

The question of whether HDB’s conduct constituted a breach of the August 2022 policy is of some relevance to an assessment of whether HDB’s dismissal was harsh, unjust or unreasonable. HDB was charged with a breach of discipline by having failed to comply with the June 2021 Policy. Nevertheless, if HDB’s conduct constituted a breach of the June 2021 Policy but not a breach of the August 2022 Policy this may be a relevant consideration in determining whether the sanction of dismissal for breaching the June 2021 Policy was harsh, unjust or unreasonable.

Under the heading ‘Policy’ the August 2022 Policy states:

Victoria Police employees must, wherever possible, avoid conflicts of interest. Where a conflict of interest cannot be avoided it must be identified, declared, assessed and managed appropriately.

Immediately thereafter there is a subheading ‘Responsibilities and Procedures’. The Board placed weight on what it described as ‘a delineation in content between “policy” and “responsibilities”’: ‘A reader can assume that the first section is preamble and guidance, while the section “responsibilities” sets the mandatory obligations where a breach would comprise a breach of discipline’.[76]

[76]Ibid at 38 [137].

The statement, ‘Victoria Police employee must, wherever possible, avoid conflicts of interest ‘, is an unambiguous direction expressed in mandatory terms. A failure to comply with this direction is a failure to comply with the Chief Commissioner’s instructions and therefore a breach of discipline pursuant to s 125(1)(c) of the Act. HDB failed to avoid an actual conflict of interest on 14 February 2022 by having social and sexual interaction with M. The Board incorrectly concluded that HDB complied with the August 2022 Policy by taking steps to manage the conflict of interest once it had been identified. The policy states, ‘Where an actual, potential or perceived conflict of interest is identified, or where there is or could be a reasonable view that one may exist, employees must take steps to manage that conflict’.[77] One of the appropriate mitigation strategies set out in the policy to manage a conflict of interest is ‘restrict involvement’.
[77]Victoria Police Manual, Conflict of Interest Policy, 11 August 2022, at 4, CB 807 (emphasis added).

The obligation to manage a conflict of interest is not enlivened solely by a police officer identifying the conflict of interest. The obligation is also enlivened where ‘there is or could be a reasonable view that a conflict of interest may exist.’ Objectively, there was a conflict of interest on the evening of 14 February 2022 between HDB’s private interests and his professional duties and responsibilities. HDB failed to manage this conflict by not restricting his involvement with M. HDB’s conduct constituted a breach of the August 2022 policy by reason of his failure to manage an actual conflict of interest which existed on the evening of 14 February 2022. The fact that HDB did not identify the conflict of interest until the morning of 15 February 2022 does not detract from this conclusion.

The Board placed considerable weight upon provisions in the August 2022 policy in respect of personal or intimate relationships:

…the New VPM-COI emphasises repeatedly that police officers have human rights and legislative protections on their rights to engage in lawful sexual relationships. The only limitation is to ensure that ‘police do not misuse the trust or power of their position and exploit the vulnerability of a person’ and that they ‘must declare and manage’ any resulting conflict of interest.[78]

[78]Ibid at 40 [146] (emphasis altered).

The August 2022 policy expressly provides that a police officer must not engage in a personal or intimate relationship with a person reasonably deemed as vulnerable, including victims of or witnesses to a crime, family violence or other trauma, who the employee met because of their employment. The Board concluded that HDB did not misuse the power or authority of his police position and that M was not a vulnerable person.[79] This finding was reasonably open to the Board based on the material before it. However, irrespective of whether M was a vulnerable person, by engaging in sexual activity with her HDB failed to manage an actual conflict of interest.
[79]Ibid at 46 [167].

The Board erred in concluding that HDB’s conduct did not constitute a breach of the August 2022 policy. Upon remittal to the Board, compliance with the August 2022 policy is not a matter which the Board could legitimately have regard to in support of a finding that HDB’s dismissal was harsh, unjust or unreasonable.

Based on the matters set out above, if the decision and order of the Board are quashed and the proceeding is remitted to the Board for rehearing according to law, the Board would be required to conduct the review on the following basis. First, on the evening of 14 February 2022 HDB breached the June 2021 policy by failing to take steps to avoid placing himself in a position of actual conflict of interest. Second, the decision of the DIO to dismiss HDB was harsh, unjust or unreasonable for two reasons:

(xv) The dismissal decision was unjust because the DIO failed to comply with the statutory condition for the exercise of the power of dismissal by failing to inquire into and determine the charge that HDB breached the June 2021 policy;

(xvi) The dismissal decision was unreasonable because the DIO took into account an irrelevant consideration, namely, clause 7 of the August 2022 policy.

Further, the Board may, but would not be bound to, conclude that the dismissal was harsh, unjust or unreasonable by reason of a denial of procedural fairness.

There are a number of other discretionary considerations which are relevant to the question of whether the Court should refrain from granting certiorari. Save for a three month period between June and September 2023 HDB has continued to work full time as a police officer. There is no evidence calling into question his work performance. If the Board’s decision is quashed this will have the effect of immediately reinstating the order made by the DIO dismissing HDB. I have concluded that the DIO’s decision to dismiss HDB was harsh, unjust or unreasonable because the statutory condition for the exercise of the dismissal was not complied with and also because the DIO took into account an irrelevant consideration. Further, I have concluded that HDB was denied procedural fairness and that this may constitute a further basis for a finding that the dismissal was harsh, unjust or unreasonable. An order quashing the Board’s decision would give effect to the DIO’s dismissal decision which was harsh, unjust or unreasonable. This is a discretionary consideration weighing against quashing the Board’s order.

The adverse impact on HDB of an order quashing the Board’s decision has been ameliorated by an undertaking proffered by counsel for the Chief Commissioner. The undertaking is that HDB’s salary will continue to be paid up to an amount of $150,000 until the hearing and determination of his review application by the Board. As a consequence of this undertaking HDB should not suffer any financial loss if an order is made quashing the decision of the Board.

Whilst the adverse financial impact of quashing the Board’s decision is ameliorated by the Chief Commissioner’s undertaking, I am mindful of the impact on HDB of being caught up in ongoing legal proceedings. The practical effect of an order quashing the Board’s decision is that HDB is confronted with the prospect of months of further delay and uncertainty as to whether he will be able to resume his career as a police officer.

I am also mindful of the significant delay before HDB was charged. There were lengthy delays associated with the investigation of the alleged breach of the June 2021 Policy. The discipline charge was not laid until 5 December 2022. The discipline inquiry brief is in evidence.[80] M was interviewed by an investigating officer on 23 March 2022.[81] HDB’s senior officer who he reported to on the morning of 15 February 2022 submitted a briefing note on 16 February 2022.[82] HDB’s colleague who attended Rafferty’s Tavern on the evening of 14 February 2022 was interviewed on 7 April 2022.[83] HDB provided written answers on 16 April 2022 to a series of questions put to him by the investigating officer.[84] The DIO was not appointed until 8 March 2023. The hearing before the DIO took place over three days: 28 March 2023, 8 April 2023 and 18 May 2023. The DIO’s determination dismissing HDB was made on 2 June 2023.
[80]Discipline Inquiry Brief, 1 September 2022, Exhibit DJDT-5 to the Affidavit of Daniel Trinidad, 3 November 2023, CB 611.
[81]Ibid at CB 614–617.
[82]Ibid at CB 643.
[83]Ibid at CB 618–620.
[84]Ibid at CB 645–647.

On balance I have concluded that discretionary considerations do not justify withholding relief. The case for denying relief on discretionary grounds must be strong as there is a basic presumption that appropriate relief should follow upon a finding of unlawfulness against a public body. I have concluded that the Board’s erroneous construction of the June 2021 Policy is an error of law on the face of the record. Further, there is utility in quashing the Board’s decision and remitting HDB’s application for review to the Board for rehearing in accordance with law.

Upon a rehearing the Board has a wide discretion under s 152(3)(b) as to the form of order to be made. The Board will be required to make a finding that the dismissal was harsh, unjust or unreasonable because the DIO failed to comply with the statutory condition for the exercise of the dismissal power and because the DIO took into account an irrelevant consideration. The Board will therefore have power to set aside the decision of the DIO to dismiss HDB. At one end of the spectrum the Board could determine that the charge of breach of the June 2021 policy is proven and make any of the determinations which could have been made by the DIO as set out in s 132(1)(a) to (h). The Board could set aside the DIO’s decision and refer the matter to the Chief Commissioner for determination in accordance with directions or recommendations of the Board pursuant to s 152(3)(b)(ii). Alternatively, the Board could make an order for reinstatement pursuant to s 152(3)(b)(iii). Such an order could be made if the Board, having found the charge of breach of the June 2021 policy proven, decides that dismissal is not warranted.

The Chief Commissioner seeks an order that HDB’s review application be remitted to a differently constituted Board to be determined according to law. The power to direct a rehearing by a different judge or a differently constituted tribunal should be exercised sparingly.[85] Such an order should be made where the interest of justice require it.[86] Where a judgment gives rise to a reasonable apprehension of bias, this will usually be a basis for making such an order.[87] In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal[88] Davies and Foster JJ stated in respect of the rehearing of a matter before the Australian Broadcasting Tribunal:

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member’s views have been stated.[89]

[85]Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [12]–[17] (Mason P), [141]–[142] (Ipp JA), [237]–[239] (Basten JA).

[86]Murphy v State of Victoria & Anor (2014) 45 VR 119 at 152 [109].

[87]Ibid.

[88](1990) 26 FCR 39.

[89]Ibid at 42.

Counsel for the Chief Commissioner submitted that it is appropriate to make an order for remittal to a different constituted Board because the Board in its decision has expressed itself in strident terms and has expressed a fixed view about HDB. I accept this submission. At [176]–[178] of its decision the Board made the following observations about HDB in the context of addressing what it considered to be the public interest in encouraging declarations of conflict of interest:

176. We consider that in doing so, the Applicant showed ethical awareness, maturity beyond his age and experience, and self-awareness and insight. He had the moral courage to get up the next morning on his day off, no doubt hungover, and go straight to work to speak to his senior sergeant and disclose the matter fully. He was astute enough to identify there was a potential conflict of interest and that he needed to be recused from his role as informant in Ms M’s and related proceedings to protect the organisation and ensure the proceedings were not compromised. He could easily have concealed the events, talked to Ms M, even told her to lie or not talk about it. In every likelihood, the brief liaison would never have come to light. He did the right thing and declared it, despite the embarrassment.
177. In doing so he showed responsibility, humility, leadership and moral courage. He overcame embarrassment. He showed trust in his supervisor and the organisation. Frankly, he showed greater moral awareness and courage than the senior police officers who appear in parity cases cited in this proceeding and in recent public scandals involving inappropriate sexual relationships, including the Lawyer X matter. He complied with the instructions on conflict of interest to which he was subject. He held himself to account, he ‘put up his hand’, and he acted to protect the public interest, the interests of justice and the organisation.
178. We are not suggesting his brief liaison with Ms M was a great idea or a good thing for his career. It was not. But it was a very human decision made by a young man in a new town, after a break-up, on a night out after many drinks, who was lonely, who responded to attention, who was possibly not thinking too well.

The Board also made the following observations regarding HDB:

186. The instructions given to police are, to say the least, confusing. The guidance given is not helpful. The response to the Applicant’s help-seeking was punitive and shame-based. The Applicant’s fundamental personal character was questioned in the way the discipline charges were framed; not as relating to an isolated action, but as a violation of enduring core values. That can only serve to invoke feelings of shame, humiliation and resentment while doing little to support learning and help-seeking.
187. During the review, unfair remarks were made by the Chief Commissioner’s Representative suggesting the Applicant’s disclosure to management the following day was ‘self-serving’ and somehow cynical. This suggestion lacked any evidential basis. The Board has considered the evidence and is of the strong view that the Applicant’s declaration of a potential conflict of interest was principled, mature, ethical and in fact an exemplar of what one should do under the VPM-COI and in applying the Values.

…
189. We also consider that it is in the public interest:
• To retain suitable officers like the Applicant who show moral courage, insight, accountability and self-reflection.

…
193. We also wish to make it clear that the Applicant’s disciplinary record ought to be amended to properly and accurately reflect the finding that the charge is not proven, and that no adverse reliance of any kind should be made on the decision originally made including for purposes of promotion, transfer, or salary progression. The Applicant should have his good name and reputation fully restored to him.
194. We commend the Applicant for his fortitude and resilience given these events and wish him well for his future career.

The statements set out above support the Chief Commissioner’s submission that HDB’s application should be heard by a differently constituted Board. On a rehearing of HDB’s review application the Board will have to consider afresh whether or not he should be reinstated, and, if so, what disciplinary action, if any, should be taken against him. Having regard to the strongly expressed views on the Board’s decision favourable to the reinstatement of HDB, a fair minded lay observer might reasonably apprehend that the originally constituted Board might not bring an impartial mind to the issue of whether HDB should be reinstated, and if so, whether he should be subject to any disciplinary action.

Conclusion

The Court will order that the decision and order of the Board dated 5 September 2023 will be quashed. HDB’s application for a review of the DIO’s dismissal decision will be remitted to the Board to be heard by a differently constituted Board. I shall provide the parties with an opportunity to make submissions on the costs of the proceeding.

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Annexure A: June 2021 Policy

Annexure B: August 2022 Policy

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Chief Commissioner of Police v HDB [2024] VSC 465

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8 August 2024